■m \m7 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 FIRST DEAN OF THE SCHOOL .' By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1975.S64 1887 A treatise on the law of negligence / 3 1924 022 241 206 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022241206 ATREATISE ON THE LAW OF NEGLIGENCE. HOE AGE §MITH, B.A. OP TBINITY HAIiL, OAMDBIDGE, AND OF THE INKEB TEMPLE AND MIDLAND CIBCUIT, BAKRISTER-AT-LA'W, BECOBDEB OF LINOOLK. ATJTHOB OF, * * THE LAW OP LANDLOBD AND TENANT ;' ' EDITOE OF * ' ADDISON ON OONTBAOTS," " EOSOOE'S OfilMINAL EVIDENCE," ETC. From the Second English Edition. PHILADELPHIA : THE BLAGKSTONE PUBLISHING COMPANY. 1887. Entered according to the Acts of Congress, in the year 1887, By the blackstone publishing company. In the office of the Librarian of Congress, at Washington, D, C. (1594) (iii) PREFACE TO THE SECOND EDITION. The kind manner in which the First Edition of this Book was received by the Profession, and the very favourable criticisms of the Press, have induced the Author to believe not merely that a Second Edition will be acceptable, but that the Work will establish itself as a thoroughly recog- nized text book upon the subject of which it treats. That subject is one of great interest, and of wide scope. Every member of the community has duties to perform towards other members, and those others have duties to perform towards him. Many of these duties are such as the law will enforce : some of them are of absolute obligation to do or to refrain from doing some particular act; but a great many of them only impose an obligation to take care in the doing or in the omission of acts, and this obligation to take care is one which is constantly arising in the daily life of almost every man. Moreover, the questions which arise in actions of negligence are often extremely subtle, involving questions of morals, and those "considerations which ordi- narily regulate the conduct of human affairs." The law, also, is in an unsettled, and even in a progressive state. These considerations will, I think, show that the "Law of Negligence" is an interesting and important topic, and, as I observed in the Preface to the First Edition, is one which has not sufficiently attracted the attention of text writers in England. The division and arrangement of the subject has received general approval, and the device of citing the cases by ad- ding to the name of the case a few words (in brackets) indi- cating the special circumstances, in order to assist the memory, has met with the "sincerest flattery." (1595) iv PEEFACE TO THE SECOND EDITION. The text has been generally enlarged and amended throughout, and many fresh cases have been inserted. New- sections have been added upon "Tiie Employers' Liability Act," "The Neglect of Duties by Trustees," "by Directors of Companies," and "by Stockbrokers." The judgment of Brett, M. E,., in the case of Heaven v. Pender, has, in consequence of its great importance, been set out at full length in an Appendix at the end of the Book ; and a vigorous criticism upon the case of Clayards v. Dethick, by Lord Bramwell, has, with his Lordship's kind permission, been printed in another Appendix. The Author has to express his thanks to Mr. Aspinall for his renewed assistance in the section upon " Ships," and to his friend Mr. Perceval Keep, of the Midland Circuit, for much valuable help throughout the preparation of this Edition, " HORACE SMITH. 4, Paper Buildings, Map, 1885. (1596) (V) PREFACE TO THE FIRST EDITION. The " Law of Negligence " has not, I think, received that amount of attention from English text writers which its importance would seem to demand. The division of negligence into three classes, viz : Neg- lect of duties requiring (1) ordinary, (2) more than ordinary, and (3) less than ordinary care appeared, upon the whole, to be a reasonable plan. This division is, no doubt, some- what arbitrary ; but it has the advantage of proceeding in some measure super antiquas vias, and it adapts itself to the increasing complexity of modern obligations. It can- not be doubted that in the progress of civilization a con- stantly increasing amount of care is required of men in pro- portion to the ^increased skill and intelligence which they are found to possess, to the increased difficulties of the duties which they undertake to perform, and to the keener sense of responsibility towards others which is character- istic of a more refined age. Thus it will be found, I think. that there is a tendency, both in the recent judgments of the judges and in the enactments of the Legislature, to widen the responsibilities of men in their conduct towards others. Upon the whole, then, I have thought such a division of my work to be desirable as giving a clearer view of what care the law requires in the performance of duties gener- ally. These divisions I have subdivided into different sections, each section dealing with a particular class of cir- sumstances : as, for instance, "Duties of Owners of Proper- ty," "of Owners of Animals," "of Controllers' of Highway," "of Physicians," "of Solicitors," &c., &c. ; for I cannot doubt that for convenience of reference such subdivisions are extremely useful, and I have aimed, as far as possible, at rendering my work a practical treatise upon the law for the use of the profession. With regard to the manner in which the cases from the various reports have been dealt with, I have found it im- possible within the proposed limits of this volume to dis- cuss the judgments at any great length. I have endeavor- (1597) VI PREFACE TO THE FIRST EDITION. ed to state what I believe to be the result of a number of cases in the text, and in the note have given the names of the cases ; generally indicating, in a few words in a bracket, what the principal fact was, so as to assist the memory of the reader and to enable the practitioner to find those cases which are most similar to the one which he has in hand ; and sometimes I have offered some suggestion towards a just appreciation of the decision. The subject of negligence with respect to the manage- ment of ships has, I feel, been inadequately treated. Ques- tions of negligence, causing the loss of goods or of the ves- sels themselves, are invariably complicated by the special contracts entered into, such as bills of laden, charter-par- ties, or insurances, regulations of navigation,, the laws and customs of Maritime courts, and other matters. The cases , are numerous and intricate, and I have felt that my book would be overbalanced by a full discussion of the Law of Negligence as applied to shipping ; but that some account of the subject ought to be given in order to render the work as complete as possible. I am indebted to Mr. Aspinall, of the Common Law Bar, for having kindly looked over this section, and given me the benefit of some suggestions, although I alone am responsible for any errors which may appear. I have availed myself of the learning and philosophic reasoning of Wharton, the lucid exposition of Shearman and Redfield, and the suggestive ingenuity of Campbell. I cannot hope that I have succeeded in combining all their merits, and I am sensible that my work may have serious detects of its own ; but after the care and labor I have be- stowed I cannot help believing that I have produced a use- ful book. HORACE SMITH. 4, Papek Buildiwgs, Temple, May, 1880. (1598) (vii) TABLE OF CONTENTS. Chapter I. Chapteb II. Chapter III. Chapter IV. Chapter V. Chapter VI. Chapter VII. Chapter VIII. [The paging refers to the [*] pages. ] Definition and Division op Subject. Neglect of Duties requiring Ordinary Care. Neglect of Duties requiring Skill or more than Or- dinary Care. Neglect of Duties requiring less than Ordinary Care. Contributory Negligence. Presumptions of Negligence. Injuries causing Death (Lord Campbell's Act). Damages. Chapter L Definition and Division of Subject. Definition of subject. Division of subject. negligence, 1 duty, 1 unintentional, 2 proximate, 3 injury, 3 equal rights, 3 origin of duties, 6 contracts, 6 duties collateral to contract, 7 duties imposed by law, 8 arising out of rights, 9 arising out of employment, 9 imposed by statutes, 9. ordinary care and insurance, 10 division of duties by Roman law, H "slight," "ordinary, " and "gross" negligence, 12 1. Neglect of duties requiring ordinary care, 14 2. Neglect of duties requiring more than ordinary care, 14 3. Neglect of duties requiring less than ordinary care, 14. proximate causes, 15 judge to non-suit if no evidence of'negligence, 22 ' Chapter II. Neglect of Duties requiring Ordinary Case. Section I. Neglect of Duties requiring Ordinary Care hy Persona in geneiral. different amount of care in different circumstances, 24 duties performed for benefit of both, 25 employment of services for reward 25 master and servant, 25 skilled labour, &c., 25 manufacturers and vendors of goods, 27 collision, &c., 28 person on premises, 28 host and guest, 28 driving, &c., 29 walking in public street, barrel, &c., 30 (1599) VIU TABLE OF CONTENTS. [The paging refers to the [*] pages.} CHAPTER II. Neglect of Duties eequibing Obdinaey Caeh. — continued. Section II. Neglect of Duties by Owners and Occupiers of Property. equal rights — excavations, 30 rights of support, 31. not responsible for user in manner not intended, 35 person on premises by right, highway, 35 owner of realty liable like owner of personalty, 35 invitation, 36 for whose benefit is party there, 36 nuisance, 36 licensee, 38 trespasser, 39 excavations, 39 fire, 40 engines, 40 dangerous thing to be kept at peril, 41. poisonous trees, 43 water brought upon land, 43 not brought upon land, 43 sudden accident, vis major, 43 equal rights, 44 in upper floors, 46 landlord not liable for tenant's negligence, 47 duty to fence in cattle, 48 railway companies, 50 Section II. — Sub-section I. Neglect of Duties by Wharf Owners. immaterial if payment made, 52 not insurers, 52 implied invitation, 52 corporations, 52 Section III. Neglect of Duties hy Owners of Animals. persons having control of, 53 savage animals, 53 mischievous animals, scienter, 53 absence of scienter, liable for negligence, 53 trespass, 53, 54 infectious animals, 55 contributory negligence, 55 dogs, 56 , dangerous animals, 57 animals belonging to different owners (damages), 57 Section IV. Neglect of Duties by Owners or Controllers of Highways. general law oi highway, 57 liabilities of diflei-ent towns as to streets, 57 nuisance, 58 non-repair of highway, 58 unlawful interference, 59 lawful interference, negligence in, 59 statutory powers, 59 liability for private person authorised by corporation, 60 any one lawfiilly interfering so as to render dangerous, bound to guard, and, if not, negligent, 61 owner of land adjoining, 61 corporation under statutory powers, 62 bridges, railing, 62 canals, 63 (1600) TABLE OF CONTENTS. ix [The paging refers to the [•] pages,] CHAPTER II. Neglect of Duties requiring Oedinaey Caee. — continued. Section V. Neglect of Duties by Corporation {not performing Statutory Duties). discretionary duties, 64 negligent use of property, 64 administrative ordinance, 60 duty must be shown, 65 ultra vires, 65 can be affected with notice, 65 Section VI. Neglect of Duties by Masters. relation of master and servant must exist, 66 Sub-section I. breach of duty to servants, 67 personal negligence, 67 by representative, 67 hiring incompetent servants, 67 providing defective material, 67 does not warrant competency, 68 servant acting contrary to orders, 68 by hiring does uot guarantee against>iall risks, 68 bound to inform them of risks, 69 to make rules for safety, 69 waiver by servant, 69 implied fresh service, 69 limitations of rule, 70 negligence of "fellow servant," 71, 73 "common employment," 72 Sub-section II. breach of duty to others, 77 master liable for negligence of himself, 77 his deputy, or servant, while employed as such, 77 servant pursuing his master's employment, 77 act within employment but done for another purpose, 78, 79 acting contrary to orders, 80 wanton acts, 80, 81 gratuitous trespass, 82 acts of under servants, 82 owner #nm(t/acie liable, 83 who is the master? 83 contractors, 84, 86 master interfering, 85 personal duty, 85, 87 sub-contractors, 87 ^ owners of real property not liable for contractor's negligence, 88 owner liable for wrongful act ordered by him, 88 public servants, 89 Sub-section III. Employer's Liability Act, 89 the old law, 89 contracting out of the Act, 89 effect of the Act, 90 •who are workmen? 91, 93 "defects," 94 "superintendence," 96 "manual labour," 97 not giving notice of defects, 98 rules, 98 contributory negligence, 100 notice of injury, 102—104, 107 (1601) X TABLE OF CONTENTS. [The paging refers to the [*] pages.] CHAPTER II. Neglect OF Duties eequieistgOedinaeyCaee. — continued. Section VII Neglect of Duties by Servants. how far liable to third parties, 109 one servant suing fellow servant, 109 servant hiring labourers, 110 Section VIII. Neglect of Duties by Public Officers. sheriflf's duty towards owner of goods seized, 110 Section IX. Neglect of Duties by Trustees. definition of trust, 111. - jurisdiction of Court of Chancery, 111 ordinary care, 111 principal duties of trustees, 113 (1) reducing property into possession, 113 (2) safe custody of property, 114 ^3) investment of property, 118 (4) distribution of property, 119 Chaptee III. Neglect of. Duties eequieing Skill oe moee than Oedinaey Caee Section I. Neglect of Duties requiring more than Ordinary Care by Persons in general. gratuitous loan (commodaiiim) in the case of bailee, 121 things done for person's own advantage, 121, 122 invitation, 122 stands at races, &c., 122 volunteer, 123 persons who undertake to show skill, 123. corporations, 124 dangerous things, 124 dangerous conduct, 125 statutory duties, 126 carriers, 127. Section II. Neglect of Duties by Owners and Occupiers of Property. owner using property for his own advantage, 129 in an ordinary manner, 129 in an extraordinary manner, 129 • grantee to market taking toll, 130 level crossings, 130, 133 sparks from engine, 131 owner inviting person on premises, 131 for his own benefit, 131 for the benefit of the other, 131 whether an invitation in fact, 132 Section II. — Sub-section I. Neglect of Duties of Wharf and Dock Owners. inviting vessels into dock, 134 profit derived from tolls, 135 old obstruetions, 135 duties to general public, 135 Section III. Neglect of Duties by Owners of Dangerous Animals. "dangerous" animals, 136, 137 scienter, 138 Section IV. Neglect of Duties by Owners of Dangerous Goods, <&c. use of gun, 139 fireworks, 139 poisonous drugs, 139 explosive materials, 140 otherwise dangerous, 140 (1602) TABLE OF CONTENTS. XI [The paging refers to the [•] pages. ] CHAPTEE III. Neglect of Duties eequieing Skill ok more than ObdinAEY Caee. — continued. Section V. Neglect of Ihtties by Gas Companies. dangerous thing, 141 inspection of pipes by, 141 Section VI. Neglect of Duties by Persons employing Machinery. common law, 142 statute law, 143 contributory negligence, 144 recent Act, 145 Section VII. Neglect of Statutory Duties by Corporations. reason for requiring more than ordinary care, 148 ■ imperative duties, 149, 150, 152 penalty no bar to action, 149 discretionary duties, 150, 152 duty not only to make works, but to take care, 151, 153 Interpretation of statutes, 151, 154 corporations taking toll, 155 not liable for inevitable result, 155 liable, though deriving no benefit, 156 knowledge of defects, 156 cannot shift responsibility, 156 only liable for acts of servants, 157 or persons under control, 157 liability for acts of contractor, 158 recovery against contractor, 158 party bringing action must show interest, 159 injury must be within particular mischief, 159. Section VIII. Neglect of Duties by Directors of Public Companies. liability of directors, 159 more than ordinary care, 160 bill in equity, 160 suit by liquidator, 161 liability of sleeping directors, 161, 162 actions by shareholders, 164 action against promoters, 165. Section IX. Neglect of Duties by Carriers. insurers, act of God, 165 goods of peculiar character, 165 not insurer after goods arrived, 165 railway companies common carriers, 166 Carriers Act, 166 tender of reasonable sum, 169 limitation of liability by express contract, 170 just and reasonable conditions, 171 Eailway and Canal Traffic Act, 173 measure of damages, 174, 175 forwarding goods beyond the line, 176 passengers' luggage, 176 warehousemen of luggage, 178 conditions, knowledge of depositor, 179 carriers of passengers, 179 injury to passenger by another company, 183 use of premises, 185 misleading into security, 187 faulty construction, 187 injury by something extraneous, 188 use of trains and carriages, 189 (1603) XU TABLE OF CONTENTS. / [The paging refers to the [*] pages.] CHAPTER III. Neglect of Duties eequiring Skill ob moee than Oedinaey Cabe. — continued. Section X. Neglect of Duties hy Carriers. — continued. invitation to alight, 190 thumb cases, 191 . whistling, 192. Section X. Neglect of Duties hy Innkeepers. . not an insurer, 193 loss, primd facie evidence, 193 act of God, 193. contributory negligence, 193 not liable for burglary, 193 limitation of liability by statute, 194 Section XI. Neglect of Duties hy Physicians, . Sharp 242 Calye's Case 193 Campkin v. Barton 119 Canley v. Pittsburgh Railway Com- pany 243 Carpue v. London and Brighton Railway Company 247 Carr v. Lancashire and Yorkshire Railway Company 169 Carson, The 213 Carter v. Drysdale 108 V. Towne 140 Cartsbum, The 221 Cashill V. Wright 193 Caswell i). Worth . . . . 143,144,239 Catchpole v. Ambergate Railway Company 165 Cattle V. Stockton Waterworks Company 21 Cattlin V. Hills 241 Cayzer v. Taylor 72 Chadwick v. Trover 35 Chaplin v. Hawes 249 Chapman v. Great Western Rail- way Company . . . 166 V. Rothwell 36, 133 Charles v. Taylor ... 73, 75, 77, i Chartered Mercantile Banli: of India V. Netherlands India Steam Na- vigation Company . .212, 214, 215 Chase v. New York Central -Rail- way Company 239 Cheetham v. Hampson . . 47, 48, 49 Chester, The 217 Chicago Railway Company v. Dimick 227 Chicago Railway Company v. Gre- gory 76 B — LAW OP NEG. (1609) XVIU TABLE OF CASES. [The paging refers to the [*] pages.] Chicago Eailway Company v. Eobiiison 187 Chicago Eailway Company v. Schumilowsky 243 Chicago Eailway Company ■«. Smith 243 Chicago Eailway Company v. TJtley 49 Child V. Boston 151 Childs V. Hearn 56, 241 Chorley v. Bolcot 195 Christiana, The 218, 220 Christie v. Griggs 179, 247 Church D. Mansfield 82 Clan Gordon, The 218 Clare v. National City Bank . . . 250 Clarence, The 146, 221 Clark V. Chambers . . 20, 61, 129, 139, 140, 143, 244 V. Holmes 70, 91, 92 V. Midland Eailway Com- pany 188 Clarke v. Bything 259 Clarkson v. Musgrave 105 Clay V. Wood 29 Clayards v. Dethick . . 235, 240, 275 Cleveland Eailway Company v. Keary 73 Cleveland v. Spier 61, 74 Cliff V. Midland Eailway Company 130 Clifton V. Hooper 211 Clough V. Bond 118 Clyde Navigation Company v. Bar- clay 218 Cockle V. South Eastern Eailway Company 190 Coe V. Piatt 144 V. Wise 156 CoggSK. Bernard, . 121, 122, 196, 223 Cohen v. Eureka Eailway Com- pany 187 V. South Eastern Eailway Company 176, 177 Coleman v. South Eastern Eailway Company .' . . 191, 243 CoUard v. South Eastern Eailway Company 175 Collett V. London and North West- em Eailway Company . . . 2 Collins V. Middle Level Commis- . sioners 16, 155 'CoUis V. Selden . . '. 2, 4, 7, 58, 273 Colorado • Eailway Company v. Holmes 228 Columbus, The 221 ConoUy v. Poillon 68 Conway v. Belfast and Northern Eailway Company 73 Cook V. Palmer 210 V. Waring 55 FAOE Cooper V. Mullins 73 V. Stevenson 201 Corbin v. American Mills .... 83 Corby v. Hill .... 38, 39, 143, 272 Corman v. Eastern Counties Eail- way Company 186 Corry v. Thames Iron Works . 175 V. Great Western Eailway Company . ... 50 Corvill, The Fanny M 214 Cosgrove v. New York Eailway Company 17 Cotton V. Wood 29, 248 Couch V. Steel . . 138, 140, 143, 149, 212 Coupland v. Hardingham .... 48 Cowley «. Mayor of Sunderland . 143, 159 Cox V. Burbridge 137, 260 V. Leech 201 V. Great Western Eailway Company .... 99, 100 Cracknell v. Mayor of Thetford 154, 155 Crafter v. Metropolitan Eailway Company 185, 186 Craig V. Watson 199 CrawfordsviHe v. Smith .... 17 Croft V. Allison 80 Crofts V. Waterhouse .... 179 Crouch V. Great Western Eailway Company 166, 175 Crowder v. Long 210 Crowhurst v. Amesham Burial Board 43 Cullen V, Morris 205 Curtis V. Drinkwater 189 V. Mills 56 Cuthbertson v. Parsons '85 V. Shaw 216 (1610) Cuyler v. Dicker 237 Czech V. General Steam Naviga- tion Company ..... 246, 248 D. Daioz, The 218 Dalton V. South Eastern Eailway Company 254 Daniel v. Metropolitan Eailway Company 2, 14, 22, 186, 188, 229, 245 Daniels v. Potter 48 Dansey v. Eichardson . . : . . 193 D'Arc V. London and North West- ern Eailway Company . . 172, 183 Darke v. Martyns 114, 118 Dartnall v. Howard .... 201, 224 TABLE OF CASES. XIX [The paging refers to the [*] pages.] PAQB Davey v. London and South West- ern Railway Company 22, 190, 192, 234, 237, 240 Davidson r. Monkland Railway Company . . . 242 V Seymour 210 .Cavies v. England 69 II. Mann 226, 227 Da^-is V. Berwick 93 ti. London and Blackwell ^ Railway Company . 32 «'. London, Brighton and South Coast Railway Company . . . V. Willan Dawson v. Chamney V. Manchester, Sheffield and Lincoln Rail- way Company . . J!. Midland Railway Com- pany 185 170 193 247 Dax V. Ward Dayrell v. Tyrer . Deane v. Clayton V. Keate 50 . 201 83, 84 3, 139 . 25 Degg V. Midland Railway Com- pany ... 39, 74 Dennis v. Whetham . ... 210 De Morauda v. Dunkin . . . . 210 De Roitfigny v. Peale 201 Dewire r. Bailey 235 Diana, The .218 Diana Greig, The 218 Dickenson v. Fletcher 145 V. Grand Junction Canal Company .... 44 r. North Eastern Rail- way Company . . 251 Dickson r. Reuter's Telegraph Company 207 Dignam v. Bailey 210 V. Leach 69 Dixon V. BeU 139, 263 Dixon V. Metropoliljin Board of Works 18, 43, 155 Dodd V. Holme 6, 32, 34 Doel V. Sheppard 145 Donaldson v. Holdane . . . 199, 201 Donoho V. Vulcan Iron Works . 243 Doorman v. Jenkins 223 Donnont v, Fumess Railway Com- pany 136, 152, 155 Dougherty v. Missouri Railway Company 247 Doughty 1'. Firbank 100 Douglas, The 215, 216 Doward v. Lindsay 217 Doyle V. Blake 119 Doyle V. Wragg 247 Drake v. Sykes 210 Drew V. New River Company . . 60 Dublin, W. and W. Railway Com- pany V. Slattery, 14, 22, 132, 188, 190, 192, 234, 237, 238, 239 Duckworth v. Johnson . . . 253 Dudley v. Smith 179 Dudman v. Dublin Port and Docks Board 220 Dumfries, The 213 Duncan v. Thwaites . . .58 Dundonald v. Masterman .... 199 Dunn V. Birmingham Canal Navi- gation 150 Durgin v. Munson 68 Dush V. Fitzhugh 258 E. Eastern Counties Railway Com- pany, Ex parte 119 Eaves v. Hickson 114 Eden, The 218 Edwards v. Loudon and Brighton Railway Company 67 V. New York Railway Company 48 Egyptian, The 217 Elkington v. Holland . . . 198, 201 Ellis V. Great Western Railway Company 14 V. Sheffield Gas Company 87, 89 Emblem v. Myers ........ 258 Emma Silver Mining Company v. Grant '. . 165 Energy, The 218, 220 Englishman, The 214 Eolides, The 222 Erickson, The 217 Erskine v. Adeane 43, 48 Evans v. Mostyn 145 Evers v. Hudson River Company . 17 Exchange Fire Insurance Company V. Delaware Canal Company 52, 63 F. Fahn v. Reichart 40 Fanjoy v. Scales 35 Farley v. Chicago Railway Com- pany 237 Farnworth v. Packwood .... 193 Farrant v. Barnes 140, 224 Farwell v. Boston Railway Coin- pany 75, 77 (1611) XX TABLE OP CASES. EThe paging refers to the [*J pages. ] Fawcett v. North Midland Rail- way Company 50 Feital v. Middlesex Eailway Com- pany 235 Feltham v. England 73, 76 Fenton v. Dublin Steam Packet Company 83 Ferguson, Ex parte 215 V. Kinnoul .... 206, 265 • V. "Wilson 159 Fetter v. Beal 263 Ficken v. Jones 55, 137 Field V. London and North West- ern Railway Company .... 150 Filliter v. Phippard 40, 42 Fink V. Missouri Furnace Com- pany .... . . ... 243 Firmstone v. Wheeley 43 Firth V. Bowling Iron Company, 17, 43, 49 Fish V. Kelly 199 Fisher v. Prowse 224 Flannery v. W. and L. Railway Company 247 Fleming v. Manch&ster, ShefiSeld, and Lincolnshire Railway Com- pany 181 Fletcher v. Peto 73 V. Rylands . . 41, 43, 46, 47 129 V. Smith .... 18, 35, 46 Flower v. Bolingbroke, 200 Flowers v. South Eastern Railway Company 168 Floyd V. Nangle . .... 199 Flying Fish, The 222 Forbes v. Ross 118 Ford V. London and South Western Railway Company 189 Fordham v. London, Brighton and South Coast Railway Company 191 Foster v. Bank of London . . . 204 V Essex Bank .... 203 Foulkes -0. Metropolitan District Railway Company .... 181, 184 Fowler v. Lock 66, 83 V. Great Western Railway Company 176 Foy V. London, Brighton and South Coast Railway Company 190 France v. Gaudet 175 Francis v. Cockerell . . 86, 122, 131, 156, 157, 273 Frankland v. Cole 201 Franklin v. South Eastern Rail- way Company .... 253, 254 Fraser v. Marsh 66 Fray v. Voules 200, 202 Frazer r. Pennsylvania \ Railway Company 69 Frink s). Coe 259 V. Vetter 42 Galatea, The 220 Gallagher v. Piper 73 Gallin ^'. London and North West- ern Railway Company .... 169 Gandy v. Jubber . .... 47 Gardner v. Grace 243 Garside v. Trent Navigation . . 165 Garton v. Bristol, &c. Railway Company 173 Gautret v. Egerton ... 2, 37, 38, 39, 63, 274 Gavin v. Chicago City 243 Gayford v. Nichols .... 32, 88 Gazelle, The 221 Geddis v. Proprietors of Bann Re- servoir 154 Gee V. Lancashire and Yorkshire Railway Company 175 Gee V. Metropolitan Railway Com- pany .... 14, 22, 191, 235, 238 General Steam Navigation Com- pany V. British and Colonial Navigation Company . . 83, 219 George v. Skevington . . .7, 272 V. St. Louis Railway Com- pany 247 Gibbon v. Budd . . 196, 263 v. Coggin . . . . 210 Gibbons v. Pepper 249 Gibbs V. Great Western Railway " Company . . . .99 V. Liverpool Docks . . . 134 V. Mersey Docks .... 58 Giblin r. McMullin . . 13, 203, 223 Gibson v. Preston (Mayor of), 58, 155 Gilbert v. Beach 88 Gill V. Great Eastern Railway Company 190 Gillett V. Western Railway Com- pany 259 Gipsey King, The 219 Girdwood v. North British Rail- way Company 188 Girolama, The 217 Gladwell v. Steggall 7 Glengarry, The 216 Glover v. Gray 243 Godefroy v. Dalton 201, 202 V. Jay 200, 201 (1612) TABLE OP CASES. XXI, The paging refers to the [*] paging. FAGB Godfrey, Jure Godley v. Hagerty Grodwin v. Stone Grordon, Ex parte !'. Great Western Railway Company Gorris v. Scott 126, Gosling V. Cory GovernmenfBecurity Company, In re, Mudford's Claim Governors of Christ's Hospital, £r parte Graham v. North Eastern Eail- way Company Granite State, The Graves v. Strahan Gray r. North Eastern Eailway Company Great Northern Railway Company V. Harrison Great Northern Railway Company r. Shepherd Great Western Railway Company r. Davies Great Western Railway Company V. Eimmell Great Western Railway Company of Canada r. Fawcett 18, 156, 188, Greenland i\ Chaplin'. . 177, 239, Gregory v. Gregory V. West Midland Railway Company . 171, 172, !'. Williams Grey v. Ptillen . 88, 126, 149, 158, Griffiths V. Dudley (Earl of) . 90, 96, 100, V. Gidlow Grill V. General Iron Screw Com- pany 123, Grimes v. Harrison . . . Grizzle v. Frost Grotei). Chester, &c. Railway Com- pany 62, 86, 156, Gunter v. Wicker Gunzu Chicago Railway Company Guy Mannerii^, The Gwillim V. Scholey Gwinnell v. Earner H. Hadley v. Baxendale 0. Taylor . 175, Hales V. London and North West- em Railway Company .... Hall V. North Eastern Railway 113 48 210 93 172 159 263 164 119 74 216 118 192 183 177 186 169 247 260 114 173 263 265 93, 253 69 124 163 74 157 228 237 220 210 47 260 48 175 Faox Company 168 Halley, The 218 Hammack v. White . . 248, 249, 25o Hammond v. Rogers 218 — V. St. Pancras . . 149, 150 152, 156 Handford o. Palmer 25 Hanke v. Hooper 197 Hardcastle v. South Yorkshire Railway Company 40 Hardy v. Ryle 93 V. Veasey 204 Harris v. Costar 179 Harris v. Great Western Railway Company 179 V. Mohhs 17, 59, 61 V. Nicholas 82 V. Ryding 32 Harrison v. Great Northern Rail- way Company 16, 45, 116 V. London, Brighton and South Coast Railway Company . 170, 172, 175 V. North Eastern Railway Company 188 Hart V. Baxendale 168 V. Frame 201 V. Hudson 231 Haxtnell ji. Ryde Commissioners, 58, 155 Hastings v. Halleck 200 Hawkins v. Cooper 29 V. Harrwood 201 Hayne v. Rhodes 201 Heam v. London and South West- ern Railway Company . . 167, 170 Heath v. Wilson ........ 78 Heaven v. Pender . 7, 8, 21, 140, 267 Hector, The 213 Heeg V. Licht . • 41 Heil V. Glanding 258 Henderson v. Stevenson .... 179 Heske v. Samuelson 94 Hetherington v. North Eastern Railway Company 253 Heugh V. London and North West- ern Railway Company . . . 166 Hicks V. Newport Railway Com- pany 257 HigginsD. Dewey 40 Higgs V. Maynard 248 Higham i\ Wright 145 Hill V. Finney 201 V. New River Company . . 16, 158 Hilton V. Earl Granville .... 31 V. Whitehead 31 Hinshaw v. Arden 26 (1613) xxu TABLE OF CASES. [The paging refers to the [*] pages.] Page Hinton v. Dibbin 175 Hipkins v. Birmingham Gas Com pany 141 Hobbs V. London and South West- ern Railway Company .... 17 Hoby V. Built 197, 200 Hodgson V. Lynch 209 Hodgson V. York (Mayor of) . . 155 Hodyman v. West Midland Rail- way Company 174 Hofifman v. United Ferry Company 217 Hogan V. South Eastern Railway , Company 185,. 187 Holder v. Soulby 193 Holdsworth v. City of Glasgow Bank 164 Hole V. Sittingbourne Railway Company . . .88, 149, 158 Holmes v. Clarke . . . . 144 V. Mather 55 V. North Eastern Railway Company, . 36, 74, 131, 122, 133 V. Onion 84 V. Worthington .... 70 Hooper v. London and North Wes- tern Railway Company .... 178 Hopgood V. Parkin 114, 201 Horn V Midland Railway Com- pany 169. 175 Hounsell v. Smith . . 27, 39 Housee v. Hammond . . . . 264 Howells V. Landore Steel Com- pany .73, 145 Howland v. Vincent ... 40 Hubbard v. Philips 199 Huckle V. Money 258 Hudson V. Roberts 138 Hudston V. Midland Railway Com- pany 177 Hughes, Ex parte 93 V. Macfie . . . 229, 243 V. Pfercival 4, 84, 85, 125 ^ V. Quentin . ' . 259 Hull V. Johnson . . 76 Hume V. Oldacre 265 Humphries e. Armstrong .... 235 V. Brogden . . 31 Hunter v. Caldwell 201 V. McGown 212 Huntley v. Bulwer 201 Hutchinson v. York, Newcastle, and Berwick Railway Com- pany 69, 72, 109 Huxam r. Thoms . .... 94 Hyams «).' Webster 88 Hyde v. Mersey Navigation Com- pany 193 Hyman v. Nye , PAQI! 180 lUidge V. Goodwin 20 Illinois Central Railway Company V. Downey 80 Hot V. Wilkes 139 Indermaur v. Dames . 28, 36, 132, 133, 273 Ingle V. Partridge 119 Ingram v. Barnes 93 V. Lawson 263 International Railway Company v. Halloren 187 lona. The . . . 218 Iron Railway Company v. Mow- ery 247 Israels v. Clark . 189 Itinerant, The 217 Ivay V. Hedges 38 Iveson V. Moore 58 J. Jacaud v. French 201 Jackson v. Metropolitan Railway Company 14, 16, 17, 185, 191, 237, 238 V. Smithson . 138 Jacob V. Lucas . . 113 Jeffery v. Bastard 210 Jeffrey v. Keokuk Railway Com- pany 237 Jeffries V. Williams . . 33 Jenkins v. Betham . . . 27 Jevon V. Bush . .... Ill Job V. Job . . .... 223 Joel V. Morrison . .... 78 John V. Bacon 132 Johnson v. Holyoke 259 V. Midland Railway Com- pany . . ,' . . 169 V. Newton 114 Joint Stock Company v. Brown 162, 163 JoUifife V. Wallasey Local Board . 150 Jones V. Bird ... 60, 124, 149, 206 V. Boyce 235, 260 V. Fay 197 V. Festiniog Railway Com- pany 41, 131 V. Higgins 113 V. Wood 210 Jordin v. Crump 139 (1614) TABLE OF OASES. XXIU [The paging refers to the [•] pages.] JuUa, The 219, 221 Julius V. Bisiop of Oxford . 152, 153 K. Kearney v. London, Brighton and South Coast Eailway Company 36, 62, 122, 129, 246, 249 Keble v. Thompson 118 Keen v. Millwall Dock Company 102, 103 Keighley's Case 18 Kelly V. Hannibal Eailway Com- pany 236 Kemp V. Burt 201, 202 Kendal v. London and South Wes- tern Eailway Company .... 165 Kent V. Midland EaUway Compa- ny 178 V. Shuckard 193 Kerr v. Willan 170 Keys V. Belfast Eailway Compa- ny 177 Kindal v. Blades 210 King V. Ford . 139 V. Spurr 66, 83 Kirby Hall, The 216, 217 Knight V. Ahert 30, 39 t:. Fox 87, 88 V. Quarles 201 Kuhn V. Jewett 15, 41 L. Laidler v. Elliott, 198, Lake Shore Eailway Company v. Lamb v. Palk V. Walker Laming v. Webb .... Lancaster Bank v. Smith .... Canal Company v. Par- naby 63, 133, 134, Land Credit Company v. Lord Fermoy Lane v. Gotten .... 89, Langdon v. Godfrey Langham v. Young Langridge v. Levy "7, 12, 271, 272, Langston v. Ollivant Lannen v. Albany Gas Company . Lanphire v. Phipos Larkin, Ex parte Lary v. Cleveland Eailway Com- pany . Latch V. Eumner Eailway Com- pany Laugher v. Forrester 201 236 82 263 98 203 156 164 207 202 94 273 118 142 197 159 39 249 83 Laugher v. Pointer 85 Laurence v. Housatonic Eailway Company 239 Lawrence v. Jenkins 17, 49 V. Todd 93 Lawson v. CaiT 214 Lax v. Darlington (Mayor of) 130, 135, 236, 240 Lay V. Midland Eailway Company 243 Le Conteur v. London, Brighton and South Coast Eailway Com- pany 167 Lee V. Dixon .... . . 201 V. Eiley 49' — - V. Walker 203 Leeds v. Amherst 261 Leggott V. Great Northern Eailway Company 255 Le Peinture v. South Eastern Eail- way Company 175 Leslie v. Pounds 47 ( Levey v. Abbott 200 Levy v. Hale 211 Lewis V. Great Western Eailway Company .... 171, 183 V. London, Chatham, and Dover Eailway Com- pany 190, 191 V. Nobbs, 117, 118 Ligo, The 218 Lilley v. Doubleday 16 Limpus V. London Omnibus Com- pany 80, 81, 82 Linford v. Fitzroy . .... 205 — V. Lake 258 Lion, The 219 Little Miami Eailway v. ^tevens 73 Lloyd V. General Iron Screw Com- pany 214 Lloyd V. Ogleby 249 Lochlibo, The 218,219 London and North Western Eail- way Company u Hella- well ' ... 190 The City of, 217 Long V. Orsi 201 Longmeid v. Halliday .... 7, 273 Longmore v. Great Western Eail- way Company ' 187 Looney v. Maclean 235 Lord V. Midland Eailway Company 175 Losee v. Buchanan . . ■, . . 43 Lovegrove v. London, Brighton, and South Coast Eailway Company 73, 75 V. White 200 Lovell V. Howell 70, 73 (1615) XXIV TABLE OF CASES. [me paging refers to tlie [•] pages.] Lovell V. London, Chatham, and Dover Railway Comr pany 178 Low V. Grand Trunk Eailway Company 135 Lucas V. Mason 80 Lucy V. Ingram 83 Lukin V. Godsall 264 Lumley v. Gye 21 Lumsdent). Russell 242 Lumm V. London and North West- em Railway Company .... 78 Lyme Regis (Mayor of) v. Henley 150 Lynch v. Nurdin . . 20, 137, 139, 243 Lyons v. Martin '. . 82 M. MacAuley v. Brownlie .... 73 Macbeath v. Ellis 200 MacCann v. London and North Western Railway Company 171, 172 MacCarthy v. Young 224 MacCawley v. Fumess Railway Company 169, 183 MacDonald v. Highland Railway Company . . . . . 165 Macey v. Hodson 102 McGiffen v. Palmer's Shipbuilding Company 94 MacGuire v. Grant 264 Maehu v. London and South West- em Railway Company . 169 Mackenzie v. McLeod ... 79 McLaren, In re 166 MacLaughlin v. Pryor . . . . 83, 85 MacMahon v. Davidson . . . 245 MacMahon v. Field . . 17 MacManus v. Crickett . . . . 80 V. London and York Railway Company 171, 172, 173 MacQueen v. Great Western Rail- way Company 169 Macrow v. Great Western Railway Company 176, 177 Mad River Railway Company v. Barber 72 Maddox v. London, Chatham, and Dover Railway Company . . . 191 Magnet, The 214 Manchester, Sheffield, and Lincoln- shire Railway Com- pany V. Wallis . . 51 Sheffield and York Railway Company v. Fnllarton .... 130 Manchester, The City of .... 214 Mangan v. Atterton ... 20, 143, 244 Manley v. St. Helen's Canal Com- pany 52, 63, 135 Mann v. Weiand . .... 241 Mannering, The Guy 220 Manning v. Wilkins 202 Manser v. Eastern Counties Rail- way Company ... . 189 Mazoni v. Douglass 249 Marfell v. South Wales Railway Company 50, 51 Maria, The . . 218, 219 Marpesia, The 217 Marshall v. Moran 218 V. York, Newcastle, and Berwick Railway Company 180, 183 Martin v. Bell . . 210 V. Great Indian Peninsular Railway Company . . 172 Mary, The 219, 220 Marzetti v. Williams . . 54, 200, 204 Mason v. Barker 263 V. Keeling . . . 136, 137 V. Sainsbury 259 Massey v. Goyder 34 May)). Burdett 53, 138 Mayhew v. Nelson . . 168 Meilona, The .... .221 Mellors v. Shaw 67, 68 Merreweather v. Nixon 265 Merrick v. Brainord 84 Mersey Docks v. Gibbs . 2, 58, 88, 89 124, 134, 135, 149, 154, 156, 207 Mendes v. Guedalla . . 114, 117 V. Penhallow 134 Metcalfe v. Hetherington .... 135 V. London, Brighton, and South Coast Railway Company 169 Metropolitan Railway Company v. Jackson . . 14, 16, 17, 22, 190, 192 Meyer v. Second Avenue Railway Company 79 V. Lindell Eailway Com- pany 29 Midland Railway Company v. Bromley 179 Midland Railway Company v. Dakin 51 Midland Railway Company v. Taylor 114 Milan, The 214, 241 Miller v. Searle ...... . 206 Milligan v. Wedge 87 Mills V. Holton 225 Minnehaha, The 220 (1616) TABLE OP CASES. XXV [The paging refers to the [•] pages. J Mitchell II. Cressweller 78 V. Lancashire and York- shire Railway Com- pany 1G6 Mobile, The 218 Moffat ('. Bateman . 29, 39, 225, 246 Moore r. Gadsden 17 • V. Metropolitan Eailway Company 79 Morton r. Hardern 264 More wood v. Pollock 212 Morford v. "Woodworth 258 Morgan v. London General Omni- bus Company ... 94 I). Eavey 193 V. Vale of Neath Eailway Company .... 76, 77 Morley !'• Morley 112 Morrison v. General Steam Naviga- tion Company 214 Morrit v. North Eastern Eailway Company 167 Mose V. Hastings Gas Company 141 Moyle V. Jenkins 102 Moyle V. Moyle 114 Mullen V. St. John 246 , Munday v. Thames Ironworks Com- pany 91, 107 Munster v. South Eastern Eailway Company 169 Murphy v. Caralli 84 V. New Haven Company, 256 V. New York Eailway Com- pany 254 V. Phillips 68 V. Smith 67, 74 Murray v. Metropolitan District Eailway Company 192 N. Nash V. Swinbum 201 NeUson v. James 205 Nelson v. Liverpool Brewery Com- pany 47, 48 Neptune the Second, The . . . 218 New Eiver Company v. Johnson . 154 Newbold v. Coltham 211 Nichols V. Great Southern Com- pany 190 V. Marsland 16, 43 Nicholson v. Mounsey ... 89, 207 V. Lancashire and York- shire Eailway Com-' pany 185 Nieldc. London and North Western Eailway Company 63 Nitro Phosphate Company v. Lon- don and St. Katharine Docks 18, 22, 261 Norris, Mx parte 119 V. Kohler 250 North Eastern Eailway Company V. Wanless 126, 132, 133 North V. Smith 80, 249 Northampton, The 218 Norton v. Cooper 199 Nugent V Smith 165, 211 Nye V. Macdonald 209 O. Ogden V. Rummens 68 Ogle, JEx pm-te 113 O'Hanlan v. Great Western Eail- way Company 175 Ohrby v. Eyde Commissioners . . 151 Oliver v. North Eastern Eailway Company 155 Oppenheim v. White Lion Hotel Company 193 Ormerod, Exparte 93 Ormond v. Holland 67. Osborne v. Gillet .... 254, 255, 256 V. Jackson' 97 Otis V. Janesville 241 Overend, Gurney and Company v. Gomey 160 Overend, Gurney and Company v. Gibb 160 Overton v. Freeman 87, 88 Owen V. Burnett 168, 174 V. Great Western Eailway Company 186, 191 Oxford V. Prior 193 Paddon v. Eichardson 118 Page V. DeMes 82 Parker v. Great Western Eailway Company 166 V. Rolls 201 V. South Eastern Eailway Company . . 179 Parkhurst v. Foster 193 Parry v. Smith 7, 142 Parsons v. St. Ma/thew, Bethnal Green . 58 Patchell V. Irish North Western Eailway Company 186 Patent Safety Gun Cotton Com- pany V. Wilson 2, 204 Paterson v. Wallis .... 70, 74, 253 Patten v. Eea 78 (1617) XXVI TABLE OP CASES. [The paging refers to the [*J pages.J fAgB Payne v. Rogers ....■".. 48 Peachy v. Eowland 85, 87 Pearson v. Cox 16, 87 V. Skelton 264, 265 Pedley v. Davis 211 Peek V. North Staffordshire Rail- way Company 170, 171 Penhalloww. Mersey Docks . 65, 134,156 Pennington v. Yell 200 Pennsylvania Railway Company i). James 242 Pennsylvania Railway Company V. Eighter 187 Percival v. Hughes . . 4, 84, 85, 125 Percy v. Millandon 161 Perionowski v. Freeman .... 197 Perkins v. Vaughan 258 Perth, The 218 Pettey v. Cato 220 Peyton v. London (Mayor of) . . 34 Phelps V. London and North Wes- tern Railway Company .... 177 Philadelphia (City of) v. Gilmar- tin 18 Railway Company v. Anderson . 18, 156,247 Railway Company v. Boyer .... * 14 Phillips V. London and South Wes- tern Railway Company . . 254, 260 Pinanciani v. London and South Western Railway Company . . 167 Pickard v. Anderson 118 V. Smith ... 38, 48, 88, 207 Pickering v. James 206, 208 Pickford v. Grand Junction Rail- way Company 169 Piddington v. South Eastern Rail- way Company . . .... 166 Pitt V. Yalden 201 Pittsburg Railway Company v. Williams 247 Plant V. Pearman 201 PlatzD. City ofCohoes . . . . 241 Playford v. United Kingdom Tele- graph Company 207 Pocock V. Reddiugton 118 Pollock V. MacAlpiu 218 Portsmouth, The 218, 219 Potter V. Faulkner 74 V. Metropoiitan Railway Company 255, 264 Potts V. Dutton 201 r. Plunkett 68 V. Port Carlisle Dock Com- pany 69 Poulton V. London and Southwes- tern Railway Company . . 65 PAOE Powell V. Fall 33, 41 V. Salisbiuy ....... 49 Prentice v. Hall 145 Prestwick v. Poley ..... 199, 200 Pretty v. Bickmore 47 Procter v, Harris 48 Proeger v. Bristol and Exeter Rail- way Company 190 Protector, The 218 Puckwell V. Wilson 29, 125 Pulling V. Great Eastern Railway Company 255 Puryeari). Thompson ...... 82 Pym V. Great Northern Railway Company 254, 257 Quarman v. Burnett 83, 87 Queen, The 215 R. Radley v. London and North Wes- tern Railway Company . . 226, 227 Raisin v. MitcheU 258, 261 Ranee's Case 163 Randall v. Cockran 259 V. Newsom 27, 189 V. Raper 263 Rapson v. Cubitt 87, 264 Rayner v. Mitchell 78 Read v. Edwards 50, 54, 55 V. Great Eastern Railway Company 253 Readheadu Midland Railway Com- pany . ; 28, 127, 128, 179, 180, 189 Reece v. Rigby 201 Reedie v. North Western Railway Company 35, 86, 87, 88 Rees V. Williams .... . . 202 Reeve r. Palmer 201 Reg. V. Kerrison 155 V. Spou Lane Colliery Com- pany . 145 V. St. John Long . . 197 V. Treasury 207 V. United Telegraph Company 60 Redhen v. Wesley 114 Rex V. Cross 59 V. Few 201 r. Padley 47 V. Russell 59 V. Scriveners' Company . . 209 V. Severn Railway Company 63 Rice V. Baxendale 175 (1618) TABLE OP CASES. XXVU [The pacing refers to the [•] pages.] Eich !'. Pierpoint 197 Richards r. Great Eastern Eailway Company 191 !'. London, Brighton, and South Coast Railway Company 178 Richardson v. Great Eastern Rail- way 189 V. Mellish ... 263 V. Metropolitan Rail- way Company . ItJl V. North Eastern Rail- way Company 1G9 Richmond v. Smith 193 Eicketts v. East India Docks Rail- way Company 50 Eigby V. Hewitt 242, 260 Eigborgs Minde, The 218 Eiley v. Barrendale 68 V. Warden 93 Eisoluto, The 221 Eob^rts r. Smith 67 Eobertson v. Amazon Tug Com- pany 28 Eobins r. Jones 48, 224 Eobinson v. Gell 209 V. Great Western Eail- way Company . . 172 r. Eobinson 119 Robson c. North Eastern Railway Company . . 185, 189, 190, 191 Rogers v. Ehymney Eailway Com- pany 188 V. Taylor 33 Eomney Marsh (Bailiffs of) v. Trinity House 17, 217 Roper, The George .216 Eose c. North Eastern Eailway Company ...?.. 185, 189, 190 Eosewell v. Prior 47 Eoss V. Feddon 46 Eourke i). White Moss Colliery Company 74, 76 Eowley ?). London and Northwest- ern Eailway Company .... 254 Euck V. Williams 155, 158 Euddock V. Lowe 197 Eudge V. Gummow 119 Eumsey v. North Eastern Eailway Company 177 Eussell V. Hudson Eiver Company 75 V. Palmer 201 {). Stewart .201 Eyan v. Cumberland Valley Rail- way Company 76 V. Wilson 48, 224 Sadler v. Henlock 85, 86 Saint Louis Eailway Company v. Freeman 242 John V. Paine 142 Saltmarsh v. Barrett 119 Sanders v. Darling 210 i). Stuart 260 Sanderson v. Sanderson 255 Sandford o. Eighth Avenue Eail- way Company 79 Sarch v. Blackburn 56 Satterlee v. Groot 78 Sawyer v. Eutland Eailway Com- pany 73 Saxton V. Hawksworth .... 68, 70 Scott u. Liverpool Dock Company 36,129 V. London Dock Company . 83 122, 246 ('. Manchester 156 V. National Bank of Chester Valley 203 K. Shepherd 15, 139 V. Waithman 210 Scribner v. Kelly 53 Searle v. Laverick 25, 179 v. Lindsay 73 Sears v. Prentice 195, 198 Self V. London, Brighton and South Coast Eailway Company . . . 185 Senior r. Ward 69, 239, 253 Seymour v. Greenwood .... 79, 80 V. Maddox 38 Shaffers v. General Steam Naviga- tion Company 97 Shallow V. Verden 255 Shannon, The 213, 217 Sharman v. Sandars 93 Sharp V. Grey 128, 189 V. Powell 15, 17 Shepherd v. Midland Eailway Com- pany 185 Shepherd v. Mouls 119 Sherman v. Fall Eiver Iron Com- pany 239 V. Rochester Eailway Com- pany 73 V. Anderson 241 Shields v. Edinburg Eailway Com- pany 83 Shiells V. Blackburne .... 199, 224 Shinotti v. Bumpstead . . ■ . . 156, 206 Ship V. Crosskill 160 Shroder v. Ward 25 Siegrist v. Arnott 237 Simmons v. Great Western Eail- way Company . . . 171, 172 (1619) XXVlll TABLE OF CASES. [The paging refers to the C*3 pages. J PAGE Simmons v. Monier 82 Simons v. Rose 199, 201 Simpson v. London and North Western Railway Company . . 175 Simson«. London General Omnibus Company 246 Siner v. Great Western Railway Company 191 Singleton v. Eastern Counties Rail- way Company . . 19, 242 Sisters, The . . ... 216 Skelton v. London and . North Western Railway Company 130, 240 Skianer v. London, Brighton and South Coast Railway Company 247 Skipp V. Eastern Counties Railway Company 68, 69 Slater v. Baker . ... 195 Sleeman v. Barrett 93 Sloman v. Heme 210 ' Smith V. Birmingham Gas Com- pany 157 V. Cook 137 V. Dobson 261 V. Dowell . . ... 68 V. Fletcher 34, 43 V. Great Eastern Railway Company . 248, 250 • V. Jameson . . . Ill V. Kenrick . . 35 II. London Docks Company 36, 52, 133, 135, 272 V. London & South Western Railway Company . . 17 21, 40, 42 r. Martin 34 V. Milne 88 I: Musgrave 18 V. New York and Harlem Railway Company . . 73 i: St. Lawrence Tow Boat Company . . 221, 232 V. Steele . .... 133 V. Thackerah . . 54 Sueesby v. Lancashire and York- shire Railway Company . 17 Snow V. Housatoine . . . 72 Somerville v. Gray . ... 73 South and North Alabama Rail- way Company v. MacLenden 62 Southampton Bridge Company v. Southampton Board . . . . 154 Southcote V. Stanley 28 29, 38, 39, 109, 131 Spaight V. Tedcastle .... 219 Spark V. Heslop 263 Speight V. Gaunt 112 113, 114, 115, 117 FAOB Spencer, Be 201 Spice V. Bacon 194 Springett v. Ball 227 Stannard v. Ullithorne 201 Stapley v. London, Brighton and South Coast Railway Company 133 240 Star of India, The 221 Stebbins v. Central Vermont Rail- way Company 263 Steel V. Buckhart 235 V. Lester 66, 83, 265 V. South Eastern Railway Company . . 87 Stettin, The . . . 219 Stevens v. Squires .... .84 V. Woodward .... 80 Stewart v. Austin . . . 160 V. Evans 96 V. London and North West- ern Railway Company 176 .177 Sanderson 118 Stiles V. Cardifif Steam Navigation Company ... .65, 156 Stimson v. Farnham 211 Stoessiger v. South Eastern Rail- way Company ... Stokes V. Eastern Railway Com- pany Stokes V. Saltonstall . . Trumper 168 Stone V. Cartwright V. Hyde V. Stone 189 247 201 110 104 113 Storey v. Ashton 78 Stratton v. Staple .... 48 Straus V. Francis 200 Strong V. Campbell 159 Stuart V. Evans 100 V. Isemonger 218 Stubley v. London and Northwest- ern Railway Company . . 130, 240 Sturges V. Theological Education Society 125 Sturt V. Mellish Ill Submarine Telegraph Company v. Dickinson ... . 217 Sussex, The Duke of . . . . 219 Sutton V. Clark 149, 157 II. Wanwantosa . . 235 V. Wilder 114 Swainson v. North Eastern Rail- way Company 74 Swannell v. Ellis 201 Swinfeu v. Swinfen 114 Sykes v. North Eastern Railway Company 257 (1620) TABLE OP CASES. XXIX [The paging relers to the [•] pages.] FAOH Sylph, The 217 Syracuse, The 216 Syria, The 221 T. Talley V. Great Western Railway Company 177 Tarrant v. Webb 68 Tarry!). Ashton 84 87, 88, 122, 125 Tatton V. Great Western Railway Company . '. 181 Taylor v. Gorman 201 V. Greenhalgh .... 85 i'. New York 48 Teall 0. Barton 40 Tebbutt V. Bristol Railway Com- pany 36 Templeman v. Haydon . . . 189, 247 Tennant v. Goldwin 53 Terry v. New York 264 Thomas v. Harris 258 V. Rhymney Railway Com- pany 184 f. Winchester . . 7, 139, 273 Thome w. London (Mayor of) . . 157 Thompson v. Finch 114 — V. North Eastern Rail- way Company 135. 278 Thomeley, The 217 Thorogoo'd v. Bryan 214, 241, 262, 264 Thorp V. Hammond 217 Tillett V. Ward . . 5, 54, 55, 137, 138 Todd V. Flight 48 Toomey v. London, Brighton and South Coast Railway Company 186 238 Topham v. Goodwin 94 Tozer v. Child 206 Tread win v. Great Eastern Rail- way Company 168 Treson v. Pearman 201 Truman v. London, Brighton and South Coast Railway Company 41 154 Tuherfield v. Stamp 40, 41 Tucker v. Chaplin 253 Tuff !). Warman 226, 227 Tunney v. Midland Railway Com- pany 76 Turley v. Thomas 29 Turner v. Great Eastern Railway Company 76 Tuiquand». Marshall . . . 160, 161 U. Union Railway Company v. Leahy 237 United Service Company, In re Johnson's Claim 203 Vanderbilt v. Richmond Turnpike Company 80 Van Sandau v. Brown 200 Van Tol v. South Eastern Railway Company 179 Vaughan v. Menlove 40, 42 V. Taff Vale Railway Company 41, 131 Vaughton v. London and North Western Railway Company . . 169 Velasquez, The 218 Venables v. Smith 66, 78, 83 Vennal v. Garner 234 Vesta, The 219 Vickers v. Atlanta Railway Com- pany 243 Victoria, The 213, 216 Virgil, The 217, 218 Vose V. Lancashire and Yorkshire Railway Company 69, 72 W. Wade V. Carr 29 Wadsworth v. Marshall 199 Waite V. North Eastern Railway Company 161, 242 Wakelin v. London and South Western Railway Company . . 192 Wakeman v. Robinson 249 Walker ti. Goe 17, 208 V. Jackson 170 Wallace v. Dublin, &c. Railway Company .... 167 V. New York 258 Waller v. South Eastern Railway Company 75 Wallis D. London and Southwestern Railway Company 177 Walters v. Pfeil 34 Walton V. Christie 258 Wanstall v. Pooley 77 Warburton v. Great Western Rail- way Company 74, 76 Ward V. General Omnibus Com- pany 80 Wardrop Sims, The 142 Warkworth, The 212 Water Lily, The 178 (1621) XXX TABLE OF CASES. [The paging refers to the [*] pages.] FAGB Watkins ». Great Western Railway Company 186 V. Eymill 179 "Watson V. Lisbon Bridge Company 259 Watts V. Girdlestone 118 V. Porter 201 Webb V. Rennie 68 V. Tarrant 67 Weems v. Mathieson 68, 253 Weger v. Pennsylvania Railway Company 67 Welch V. Lawrence 189, 247 Weldon v. New York and Harlem Railway Company 78 Welfare v. London, Brighton and South Coast Railway Company 36 83, 187, 248, 250 Weller v. London, Brighton and South Coast Railway Company 190 Wells V. Howell 49 Welter v. Dunk 40 Wendell v. Troy 151 Westaway v. Frost 199 Western Bank v. Douglas . . . 161 Westmorland v. Holland . . . . 113 Whaite v. Lancashire and York- shire Railway Company . . . 168 Wheatley v. I'atrick 77 Whitaker v. Balmforth . ... 94 Whitbeck v. New York Central Railway Company . . . . 264 White V. Boulton 179 . u. France ... 38, 52, 133, 135 V. Great Western Railway Company 171 V. Hindley Local Board . . 155 V. Philips 35, 52 Whitehouse v. Birmingham Canal Company . . .43, 63 V. Fellows . . 60, 64, 155 Whiteley v. Pepper . . . . 61 Whitfield V. Despencer .... 89, 207 Whitford v. Panama Railway Com- pany ... . . . 256 Whitney v. Smith 118 Wiggett u Fox 73, 74 Wigmore v. Jay 69, 72, 253 Wilby V. Midland Railway Com- pany 188 Wilkins v. Day 59 Wilkinson v. Fairie 37, 185 Williams v. Bridges 210 V. Bruce 239 V. Clough 68 V. Currie 258 V. Gesse 193 V. Gibbs 201 FAQX Williams v. Great Western Rail- way Company . 19, 151 V. Groucott 31 V. Jones 78 V. Mostyn 210 V. Reynolds 175 V. Richards 29 V. Rose 210 Willoughby v. Horridge . . 132, 189 Wilson V. iHalifax 151 V. Lancashire and York- shire Railway Com- pany ; 175 V. London, &c. Company . 166 ■ V. Lord Bury .... 112, 159 i^Merry 67,68,70,71,72,73,74,77 V. Newberry 43 V. Northern Provinces Rail- way Company . . 237 V. Peto . . ... 110 V. Preston (Mayor of) . . 64 V. Tucker . . . . 201 V. Waddell 35, 46 Conservators of the 134, 155 . 37, 58 . 7, 273 50 Winch V. Thames Winterbottom v. Lord Derby V. Wright . . Wiseman v. Booker Withers v. North Kent Railway Company 18, 187 Wobnm Abbey, The 219 Wolf V. Summers 177 Wood V. Finnis ... . . . 210 V. Wand . 44 Woodgate v. KnatchbuU .... 210 Woodger v. Great Western Railway Company 175 Woodley v. Metropolitan Railway Company 70 Wootten V. Dawkins 39 Workman v. Great Northern Rail- way Company . . 17, 21, 258, 260, 261 Wright V. London General Omnibus Company 83, 259 t). London and Northwests ern Railway Company 73 74, 133 V. Midland Railway Com- pany 184, 248 0. Pearson 56 Wyatt V. Great Western Railway Company .... 236, 240, 278, 279 Wyld V. Pickford 168 Wylie V. Birch 211 (1622) TABLE OP CASES. [The paging refers to the ["] pages.] XXXI Yarborongh v. The Bank of Eng- land 150 Yates V. Wliite 222, 259 FAQB Yorkshireman^ The 221 Youde V. Cloud 113 Young V. Davis 58 -. V. Grote 204 (1623) (1) 'THE LAW OF NEGLIGENCE. ['« CHAPTEE I. DEFINITION AND DIVISION OP SUBJECT. Negligence (1) in law is a breach of duty (2) unintentional (3) and proximately (4) producing injury (5) to another possessing equal rights (6). It will be convenient at once to expla;in the terms of the above definition in the order in which they stand in the sen- tence. (1) The term "negligence" perhaps more accurately describes a state of mind, or an absence of prudence and forethought; but the law does not deal with a man's state of mind, but with the acts which flow from it, and we are only proposing to treat of that which is negligence in law. (2) Legal duties, and breeches of which the law takes cogni- zance are here spoken of. , The law considers injurious acts to be in general "culpable" which are such as a reasonably careful man would foresee might be productive of injury, and which he would abstain from doing (a). The modes in (a) Blyth v. Birmingham Waterworks Co., 11 Exch. 781. which duties may arise, and what amount of care is required in the performance of them will be considered subsequently at greater length, but at present it is only necessary tQ state that a duty must be shown to have been broken. The plain- tiff must show what the duty was, and how it was broken. It is not *suificient that a careless act has been doue by [*2] the defendant by which the plaintiff has sustained loss (6). The liability for an omission to do something depends en- tirely on the extent to which a duty is imposed to cause that thing to be done (c). It cannot be predicated of any par- (6) See Daniel v. Met. Ry. Co., L. R. 5 E. & I. App. 45; 40 L. J. C. P. 121; per Willes, J., in Gautret v. Egerton, L. R. 2 C. P. 374; 36 L. J. C. P. 191; per Byles, J., in Collis v. Seldon, L. R. 2 C. P. 498; 37 L. J. C. P. 233; Bul- man v. Fnmess Ry. Co., 32 L. T. N. S. 430. G. &. Co. being Indebted to the plaintiflfe gave a cheque to their order; and the plaintiffi, with the greatest pos- sible negligence, let a thief have an opportunity of forging their order. The thief got an innocent person to cash the cheque, who passed it to the defendant. The plaintiffs sued the defendant for the cheque, and the defendant pleaded negligence in the plaintiffs. The plea was held demurable, as the plaintiffs had no duty towards the defendant to take care of the cheque, Patent Safety Gun Cotton Co. v. Wilson, 49 L. J. C. A. 713. (c) Per Blackburn, J., Mersey Docks v. Gibbs, L. R. 1 H. L. p. 115; 35 L. J. Ex. 225. 1 LAW OF NEG. (16251 2 DEFINITION AND DIVISION OF SUBJECT. ticTilar act that it is per se negligent; it is only so because it is a breach of duty, so that an act done by one man may be negligent which, done by another, would not be so, because he had no duty in respect to it. Sometimes the duty may have arisen out of a contract between the parties; but it is not necessary that it should have so arisen. It may arise out of the relative situation of the parties, or be imposed by statute, as we shall shortly see (d). (3) If the act be intentional (e) it becomes fraudulent or crimi- nal, or it may be a trespass, and it is not proposed te deal with such questions in the present treatise (/). [*3] * ( 4) I shall defer for the present the consideration at length of the word "proximately" (g), as the subject is one of con- siderable difficulty, and the cases which illustrate it are numerous. It is sufficient here to explain the meaning of the word in the definition by saying that in order to make a person liable for a culpable breach of duty producing in- jury to another, it must be shown that the damage was the ordinary and . probable consequence of such breach, or, in other words, that the negligent act was the "proximate" cause of the damage. (5) In the word "injury" I include "damage." Mr. Broom in his Commentaries, 5th ed. p. 368, says that bare negligence unproductive of damage gives no right of action. An " in- jury" must be produced by the negligent act — that is to say, there must be something more than mere damage done, something injurious to the rights of anothor, and this is in- volved in the " breach of duty," for the breach of a legal duty is the invasion of the corresponding right. (6)' The next few words of the definition require some attention, and I am, not aware that the proposition contained in them can be supported by any distinct authority, but it appears to me to be correct. In Deane u.. Clayton, 7 Taunt. 489, Burrough, J., at p. 499, says — " I conceive that every per- son is protected by this rule (sic utere tuo) who has a right equal to that of him who does the act, and who is injured, without his default, in the exercise of that right." In the last edition of "Addison on Torts," by Mr. Cave, Q. C. (now Mr. Justice Cave) (pp. 17, 18, 19, 20), it is said that the person injured must be in the exercise of an available right. [*4] Now, if the law *regarded the right as inferior, it (d) Collett V. L. & N. W. Ey. Co., 16 Q. B. 984. (e) "Intentional negligence," a phrase sometimes used, seems to involve a contradiction in terms. So also the words ' ' wilful negligence ' ' are often used, where, if by " wilful" is meant intentional, the same objection applies; hut if hy " wilful ' ' only recklessness is meant, the phrase ' ' wilful negligence' ' seems unohjectionahle. (/) See "Wharton on Negligence," s. 132. (g) See post, p. 15. (1626) TKESPASS — NEGLIGENCE. 3 could not avail, and if it regarded the right as superior, no negligence need be alleged. The plaintiff's right must be of that sort which he is able to oppose to the right which is being exercised by the defendant, and make available against him by saying — " It is true you are lawfully exercising your right, but I am in the exercise of a right which I am able to oppose to yours, and you must therefore exercise care to- wards me" (h). The proposition is that the question of negligence only arises where the rights of the parties are equal ; or, in other words, where the rights are unequal the question of negligence does not arise. If a man has no right to do an act, or his right to do such act is subordinated to the right of another (which is the same thing, for then relatively he has no right), he is liable to an action for in- jury caused by the commission of the act, whether carelessly done or not («) ; but such action would be in the nature of "trespass," and not of "negligence." But where the rights are equal, and one party in the very exercise of his undis- puted right acts carelessly, and so injures the rights of an- other, the action of negligence arises. The question, when are the rights equal, and when subordinated, can only be answered by saying, when the law thinks it expedient that it should be so. Thus,- in the case of two persons driving along a highway, the rights are equal ; and, if one or other neglects his duty and so injures the other's right, an action of negligence arises. ' It is clear," said *Lord Cole- [*5] ridge, in a recent case, "that where both parties are upon the highway, where each of them has a right to be, and one of thfem is injured by the trespass (queer e, "act") of an animal belonging to the other, he must, in order to maintain his action, show that the trespass (qucere, " act " ) was owing to the negligence of the other " (/). On the other hand, if a man digs a hole in my land, or if, in digging a hole near the boundary, he lets down my lands, it is a tort; and further, if an adjoining owner digs a hole near to my ancient house, the law subordinates his right to dig the hole to my right to possess my house in safety, and the action is a simple action of tort, and requires no allegation of negligence to support it (k), and the same holds good of a house which has been built twenty years (I). The reason why the law subordinates his right to mine is because it is expedient to do so. But if (h) See also per Byles, J., in CoUis v. Selden, supra. A clear instance of equal rights is that of the right to a party wall, and the whole question as to the user of it by either party is one of the exercise of reasonable care, see Hughes V. Percival, 8 App. Cas. 443. (i) See Add. on Torts, 5th ed. p. 330, note (z). C;) Tillett v. Ward, 10 Q. B. D. 17. (k) See the first question asked in Angus v. Dalton, infra. (I) See the second question asked in Angus v. Dalton, infra. (1627) 4 DEFINITION AND DIVISION OF SUBJECT. an adjoining owner digs a hole near to my modern house, which has not been built twenty years, I have no dominant right, nor has he (see this discussed pos^, Ch. II., s. 2, tit. Owners of Property) ; but my right to have my house un- disturbed by him is equal to his right to dig in the boundary, and the question of negligence or no negligence in such dig- ging immediately arises. Each party has to use due care — the landowner that he digs carefully and the householder I that he builds carefully. If a man built a house close to his boundary so negligently that the soil of the adjoining owner, exercising all possible care, was injured, I conclude such adjoining owner might have an action for negligence against the householder (m). [*6] *iiaving now shortly explained the meaning of our defini- tion, which it may not be inconvenient to repeat at this place — " Negligence in law is a breach of duty unintentional and proxi- mately producing injury to another possessing equal rights" — we will proceed to describe the way in which duties arise, and what amount of care is required in their performance, and what is the nature of a breach of duty of which the law takes cognizance, viz., a culpable act contrary to the duty and proximately producing in- jury. Duties may arise out of express contracts between parties, or may be imposed by law. It is not proposed in the present treatise to_deal with the breaches of those duties which are expressly or impliedly provided for by the nature or terms of the contract, partly because the field so opened out would be too extensive, and partly because the terin "negligence" is not strictly speaking applicable to such breaches of duty, the question in such cases being, not whether the act done or omitted is negligent or not, but whether the act done or omitted is what was or was not expressly ot impliedly agreed to be done or omitted. It will, however, be found that cases of breach of con- tract are frequently referred to in the text; for it very often hap- pens that the contract between the parties is little more than an expression" in words of what the law would otherwise impose, and the question raised between the parties is the same as if there had been a breach of duty imposed by law. Where persons have im- posed entirely new duties upon themselves by agreement, or have limited or varied by agreement the obligations imposed upon them by law, this treatise will not deal with the question of their liability. [*7] *Sometimes, however, where there has been a breach of con- tract towards the contracting party there has also been a breach of (m) But see Lindley, J., in Angus v. Dal ton, 6 App. Cas. 740, 762, 764 ; Fry, J., p. 775 ; Bowen, J., p. 784 ; the Lord Chancellor, p. 796. All these learned judges say that in principle an action would lie, though practically none can be brought. See also Dodd v. Holme, 1 A. & E. 493. If'the house fell on the adjoining owner's land there would also arise a right of action for trespass. (1628) DUTIES "WITHOUT PRIVITY OF CONTRACT. 5 duty towards a third person not privy to the contract, and such breach of duty is actionable. Thus, where a man sold a gun which he knew to be dangerous to the father of a lad, knowing the lad would use it (n), and where a man sold a pernicious hair dye to another man, knowing his wife would use it (o), the defendants in each case were held liable for the injuries done to such third parties on the ground that knowing who was going tq use the articles they owed to such third parties a duty to use care towards them. But where a man negligently built a coach (p), and negligently put up a chandelier (q), it was held that he owed no duty to a stranger and was not liable to a stranger who was injured in consequence of such negligence. In an American case (r), it was held that where the negligence was dangerous to human life, as in the case of poisonous drugs, the negligent person was liable to any one, how- ever remote, who was injured. The true question always is, has the defendant committed a breach of duty, apart from contract f If he has only committed a breach of contract he is liable to those only with whom he has contracted; but if he has committed a breach of duty he is not protected by setting up a contract in respect of the same matter with another person (s). *Since the above statement of what appeared tome to be the [*8] law, the case of Heaven v. Pender (t) has been decided in the Court of Appeal. The Court, which consisted of Brett, M. R., and Cot- ton and Bowen, L.JJ., agreed in reversing the judgment of the Court below, and held the defendant to be liable; but they differed in their reasons. The principal enunciated by the Master of the Rolls seems to be that if a reasonable man must see that if he did not use care in the circumstances he might cause injury to the per- son or property of another a duty arises to use such care. This seems to be (as suggested in the first edition of this work) the true rule. The language of the master of the Rolls is, however, so clear and emphatic, and his comments on the cases so instructive, that his judgement is given in full in Appendix A. Cotton, L. J., read a written judgement in which Bowen, L. J., concurred ; but it would have been interesting to have been able to read the reasoning of the latter learned judge in his own words. The substance of their judgement was to the effect that the plaintiff was engaged on work at the invitation of the defendant, which is altogether another (n) Levy v. Langridge, 4 M. & "W. 337. This case tinned on the question of fraud. (o) George v. Skivington, L. E. 1 Exch. 1. (p) Winterhottom v. Wright, 10 M. & W. 109, see also Heaven v. Pender, 9 Q. B. D. 302 : which case, however, is overruled, see infra. (q) Collins v. Shelden, L. E. 3 C. P. 905 ; 37 L. J. C. P. 223 ; Longmeid v. HoUiday, 6 Exch. 767 ; Gladwell v. Steggell, 8 Scott, 67 ; 5 Bing. N. C. 733. (r) Thomas v. Winchester, 6 N. Y. 397 ; and see Parry v. Smith, 48 L. J. C. P. 731 ; 4 C. P. D. 325. (s) See Austin v. Gt. Western Ey. Co., per Blackburn, J., L. E. 2 Q. B. 442 ; 36 L. J. Q. B. 201. (t) Heaven v. Pender, 11 Q. B. D. 503. (1629) 6 DEFINITION AND DIVISION OF SUBJECT. question to that which we are now considering, and is treated of else- where. But they took occasion to say that they did not concur with the Master of Eolls, and cited the usual authorities. They, how- ever, said that they did not doubt that any man who leaves or sup- plies a dangerous instrument or thing, -v^hich to his knowledge is such as to cause danger not necessarily incident to its use, is liable. This, however, is the principal of Tarry v. Ashton and other cases, and is not disputed. The present treatise, therefore, is limited as far as possible to the breath of duties imposed by law. These duties may be such as the law imposes or infers from the possession of rights or from the [*9] relations of life, such as *" employer and employed," or such as the law specifically imposes by statute. They divide themselves, therefore, into three heads, (1) duties which arise out of rights, (2) duties which arise out of employment, (3) duties imposed by statutes. (1) Men are put by the law in possession of rights, and the law imposes upon all men in the exercise of any right a duty not to in- terfere with the equal rights of another apart from any agreements which they may have made between themselves. If in the exercise of a right which a man has by law, he uninten- tionally breaks or omits the duty of not interfering with the equal rights of another which is imposed by law and thereby injures another, he is guilty of a tort called negligence. (2) So, also, where two persons assume relations towards each other of employer and employed involving the performance of ser- vices, there the law implies or imposes the conditions that the per- formance must be carefully carried out. These are, strictly speak- ing, contracts, and the law implies certain terms as appertaining to these contracts. (3) And, lastly, where a statute directs a person to perform a duty and he omits to perform that duty with care, he is guilty of negligence. But although duties may be said to arise in these three separate ways, yet it will be found that the origin of the duty does not ma- terially affect the question of liability for the breach Of the duty. It may be remarked that in general duties imposed by statute are to be more strictly observed than those which are not so imposed (u); but I think that in most of the cases it .will be found that the statutory duty is imposed when a benefit is also bestowed, and it is in [*10] consideration of the benefit so bestowed that *something more than ordinary care is expected in the execution of the duty(a;). But the law draws a very important and practical distinction be- tween ordinary negligence and negligence where the law demands greater or less care. The law demands greater care where a person has or professes to have greater skill, or where an extra amount of care has been undertaken, or advantage obtained, or where the law (u) See Campbell, p. 35, 2nd ed. (x) See post, Ch. III. , s. 7, Corporations performing statutoiy Duties. (1630) THREE KINDS OF CARE. 7 deems it for the public good to require a greater amount of care; and the law demands a less amount of care where a less amount has been undertaken, or where no advantage has been obtained, or where the public good is not materially at stake. There is in law a well known relationship, viz., that of insurer and assured, by which one person engages to indemnify or to assure another against loss. This is usually effected by express contract, but is sometimes implied by the law, as, for instance, in the case of common carriers, who become a sort of insurers of goods entrusted to them for carriage, and are bound to carry safely, and are answer- able for loss without any proof of negligence. With regard to such contracts, express or implied, no question of negligence arises; and the same holds with respect to cases which may be said to be in the nature of assurance, viz., wher^ a person brings upon his land some dangerous thing, such as fire or water, or a danger- ous animal, for he is bound as we shall see, to keep it at home at his peril. In all these classes of cases something more than "care," however diligent, is demanded, viz., absolute indem- nity. But between these classes and those duties which require the ex- orcise of ordinary care there appears to be a great number of cases in which the law requires something more than ordinary care, and something less than insurance. *There is also a further class where less than ordinary care [*11] is required, and yet the law will see that a man is not absolutely careless of the rights of another. This mode of dividing the duties regarded by the law as obligatory, and which is adopted more or less distinctly in the language of English judges, is de- rived from the Boman law. The Homans divided duties into three classes, (1) for the benefit of the performer, (2) for the benefit of both parties, (3) for the benefit of the performee. Thus, (1) Where the transaction in re- spect of which the duty arose was for the benefit of the person performing it, it was considered that, as it was to be done for his advantage alone, and he was to derive benefit from another, he ought to take the greatest care not to injure that other; and he was therefore held liable for culpa levis, or slight neglect. (2) Where the transaction out of which the duty arose was for the benefit of both parties, it was considered that the person performing the duty should take ordinary and reasonable care; and he was therefore held liable for culpa. (3) Lastly, where the transaction out of which the duty arose was for the sole benefit of another, and the person performing it would derive no benefit from it, it was consid- ered that the person performing it was not bound to exercise much care ; and he was therefore held not liable, except for culpa lata (y). (y) But in case of mandate, even where for the benefit of another, he was hy the Roman law liaWe for culpa, or even, perhaps, for culpa levis ; for, said the Eoman law, he has undertaken a gratuitous service and must perform it. (1631) 8 DEFINITION AND DIVISION OP SUBJECT. Different writers have divided these sorts of negligence in differ- ent manners, some insisting that there are only two sorts of negli- gence — "culpa levis" and "culpa lata;" others dividing the sub- [*12] ject into three sorts — " culpa lata," *culpa (including culpa levis), and culpa levissima {z) ; but it seems upon the whole to be held in the English Courts (a) and in the American Courts (6) that there are three sorts of negligence, and it has been held that some- times persons are liable for slight negligence, sometimes for ordi- tiary negligence, and sometimes for gross negligence ; and it will be found impossible not to advert to these terms, which were in the Roman law really co-ordinate to the distinctly different kind of duty which was to be performed, and which will be found constantly used in the English cases. The truth is that the words " gross," " ordinary," and " slight" (c), however useful in the simpler classification of the Komari law, and used with the more exact precision of the Latin language, have become vague and misleading in the English cases and text- books, and, indeed, are sometimes used merely to express strong feeling with respect to the particular action being tried. It is sub- mitted that the best test of whether an act is culpably negligent in the particular case is to inquire whether there was a duty to exer- cise ordinary care, or something more or less than ordinary care, incumbent upon the party, and whether he had reasonably fulfilled that duty; if he has, he is not negligent; if he has not, he is neg- ligent. The words "ordinary" and "reasonably" are no doubt [*13] vague, but *the subject is only further obscured by the intro- duction of the words "gross" and "slight," because nobody can really say what they mean, though anybody may easily give to them some peculiar or exaggerated meaning (d). The question to be considered, therefore, is, when an injurious act has been done, which of the three sorts of duty had the man to perform, viz., more than ordinary care, ordinary care, or less than ordinary care, and according as it is found to be of the first, second, Campbell, s. 11 ; Whartftn, s. 493, and, as pointed out by Mx. Wharton, s. 500, the gratuitous mandatory must, according to our law, bring that amount of skill to the execution of his services which he has undertaken to show. And see post, Ch. III. (z) See Campbell, p 4. {a) See Campbell, s. 14. (He divides obligations into four classes, but one of them is "absolute assurance," which is really outside of the subject). Shearman, Ch. II., s. 16. {h) See this view discussed by Wharton, s. 57. (c) It may be noticed that the word " slight " is not exactly "levis," which is "light," and that the word " gross " is not exactly " lata," and that in each instance the English word is too strong, and, in fact, as is usual in English, more vigorous and picturesque than accurate. The word ' ' gross ' ' seems to ap- proach the Latin " dolus," which denotes intentional wrong, and is outside of our subject; and the word "slight" approaches to that "culpa levissima" which is sometimes spoken of negligence, but amounts to ' ' casus, ' ' or accident. (d) See judgment of Lord Chelmsford in Giblin v. McMullin, L. E. 2 P. 0. 317. (1632) THREE KINDS OF CARE. 9 or third class, so is he liable for slight, ordinary, or gross negligence; and the sort of duty demanded of him depends very much, but not entirely, upon the question for whose benefit was he doing the duty. As an illustration, take the following case : — My goods were lost. The person who lost them was ( 1 ) dealing with them for his own ad- vantage alone, (2) for our mutual advantage, (3) for my advantage alone. His duty is (1) to take more than ordinary care, (2) to take ordinary care, (3) to take less than ordinary care. He is liable (1) for sHght, (2) for ordinary, (3) for gross negligence. The jury having found as a fact that the defendant was dealing with the goods for his own advantage, or for the mutual advantage of both parties, or for my advantage alone, the law says for what sort of negligence he is liable. The next question is a matter of fact for the jury. As a matter of fact, he left them for two minutes outside an inn on the road. Now comes the question, is that an act of slight, ordinary, or gross negligence f The jury would then have to consider the questions of fact apart from the persons ; as, for instance, were the goods of a class likely to be lost or stolen ? was the cart properly covered ?*was the inn in a populous place P and so on. The sort of care to be taken depends upon the duty or position of the party, and is a question of law ; the amount of care *to [*14] be taken depends upon circumstances, and is a question of fact. If a person gives me a glass jug, and a deal box to carry, the sort of care which I have to exercise depends upon my position with re- spect to that person, e. g., am I paid by him or not ; but the amount of care (whatever the sort of care may be) will differ, and be prob- ably greater in respect of the glass jug than of the deal box (e). (e) See Philadelphia Ey. Co. v. Boyer, 97 Pen. 101. In an action of negli- gence, as in other actions, it is for the judge to say whether there is any evi- dence of negligence at all to go to the jury, and if not, to direct a nonsuit, Daniel v. Met. Ey. Co., ante, p. 2 ; and it is now well settled in England that a. mere cintilla of evidence is not sufficient to go to the jury. Gee v. Met. Ey. Co., L. E. 8 Q. B. 161 ; 43 L. J. Q. B. 105 ; Met. Ey. Co. v. Jackson, 47 L. J. H. L. 303 ; L. E. 3 App. Cas. 193 ; though in America it would seem that the ques- tion of negligence is always a question for the jury, Sherman, 13. Upon any given state of facts it is for the judge to say whether negligence can legitimately he inferred, and the jury whether it ought to he inferred. Met. Ey. Co. v. Jack- son, supra. Where, on the other hand, there is conflicting evidence on a ques- tion effect, the judge, whatever may he his opinion as to the value of the evi- dence, must leave it to the jury, D. W. & "W. Ey. Co. v. Slattery, L. E. 3 App. Cas. 1155. The duty of the judge is to declare negatively that there is no evi- dence to go to the jury, hut not affirmatively that a certain issue is proved, jjer Lord Penzance, ib. at p. 1181. The judges have sometimes heen very astute to discover that there is no evidence to go to the jury when it would seem there is some apprehension of prejudice, see the case of Ellis e. Gt. W. Ey. Co., L. E. 9 C. P. 551 ; 43 L. J. C. P. 304, where four learned judges thought there was nothing for the jury where the plaintiff swore that he heard no whistle, and heard no porter call out, hecause the fact of his not hearing was only negative evidence ; two judges dissented, and the judge at the trial had directed the jury that there was evidence. (1633) 10 DEFINITION AND DIVISION OF SUBJECT. The subject will, therefore, be divided in the next three chapters into — 1. Neglect of duties requiring ordinary care. 2. Neglect of duties requiring skill, or an extraordinary amount of care. 3. Neglect of duties requiring less than ordinary care. These chapters are divided into sections ; the first section of the [*15] first chapter dealing with ordinary duties of people *in gen- eral, or ordinary people, while in the other sections certain classes of persons have for convenience sake been taken separately. The principles of law which govern them all are the same, but when it has to be decided as a matter of practice whether a particular act is negligent or not, it is useful (though unscientific) to refer to cases where the facts have been of a similar description. For instance, the law says that a man should take such care as a reasonably care- ful man would take, when he is riding along a road, or when he is selecting workmen to perform some work ; but to say that it has been held negligence to spur a horse in a crowd would throw very little light upon the hiring of workmen, though it might do so upon the question whether whipping a horse in a crowd would be negli- gence. Before passing from the definition of our subject, it is necessary to explain at somewhat greater length than we have already done (f) what we mean by the term "proximately producing injury." In order to render a person liable for damage flowing from his negligence, it must be shown that the damage was the ordinary or probable consequence of the act (g). What is or is not a probable consequence of a particular act is of course not a matter of law, but of common sense. [*16] In this part of our definition of negligence the word *" prox- imately " must be distinguished from the word " culpable." An act to be culpable, that is, to be a breach of legal duty, must, as we have seen, ante, p 1, be such as a reasonably careful man would foresee would be productive of injury; and a person is not liable for an injury which he could not foresee (h). But a breach of duty to be " proximately " producing injury must be such that, whether the defendant could foresee the injury to be probable or not, \ (/) Ante, p. 3. (g) Scott V. Shepherd, 1 Sm. L. C. 417 (a squib thrown fi-om one to another) ; Sharp V. Powell, L. E. 7 C. P. 259 ; 41 L. J. C. P. 95. If the chain of causa- tion is broken, as where a fire spreads and then comes to a place where its course might reasonably have been stopped by the plaintiff, the defendant is as it seems not liable for further damage, Kuhn v. Jewett, 32 N. J. Eq. 647. This doctrine is part of the well-known legal maxim, "Injure non remota causa sed proxima spectatur, ' ' the most frequent illustration ol which is to be found in cases of marine insurance, where the question of what was the immediate cause of the loss becomes material. The cases upon this subject may be conveniently studied in Broom's Legal Maxims, Mayne on Damages 3rd ed. p. 39. (7^) Blythe v. Birmingham "Waterworks, ante, p 1. (1634) " PROXIMATELY." 11 the breach of duty is in fact the probable cause of the injury {i). Cases involving the doctrine of contributory negligence are re- served for another chapter (k), for although the question is sub- stantially in those cases the same — viz:, whether the act of the defendant is remote from the damage or not — yet the intervention of the plaintiff produces some degree of complication, and it has been thought better to devote a separate chapter to the subject. The cases we are now considering are those where a negligent act has been done by the defendant, but such act is separated from the injury done to the plaintiff either by the intervention of third parties (I),* or forces of nature (m), or distance of time (w) [*17] or space (o). Where the intervention of third parties takes place, it will be found stated in some text-books that such intervention is no defence (i) Pearson v. Cox, L. E.. 2 C. P. D. 369. See also Nichols v. Marsland, L. R. 2 Ex. Div. 1 ; 46 L. J. Ex. 174 (effects of an extraordinary rainfall might have been prevented, but could not have been reasonably anticipated). (fc) See post, Ch. V. (l) Burrows v. March Gas Co., L. E. 5 Ex. 67 ; 7 Ex. 96; 41 L. J. Ex. 46 (gas company laid defective pipe ; gas fitter went there with lighted candle) ; Sofleld 17. Somers, 9 Ben. 526 (thief got at petroleum and dropped lighted match); Hill V. New Eiver Co., 9 B. & S. 303 (defendant threw up jet of water near to pit "dug by contractors, into which a horse fell) ; Collins v. Mid. Level Commis- sioners, L. E. 4 C. P. 279 (defendants negligently constructed sluices ; plaintiff dammed them up ; third parties opened the dam) ; Harrison v. Gt. N. By. Co., 3 H. & C. 231 (defedants made insufficent delph , commissioners did not cleanse river below ; water penned back, and delph bxirst) ; Met. Ey. Co. i>. Jackson, ante, p. 14 (defendants negligently permitted crowd to get into carriage ; plain- tift'.s thumb injured at the next station); Lilley v. Doubleday, 7 Q. B. D. 510 (goods to be warehoused at A., warehoused at B., fire there, not too remote.) (m) Smith v. L. & S. W. Ey. Co., L. R. 5 C. P. 98 ; 6 C. P. 14 ; 40 L. J. C. P. 21 Ex. Ch. (cut grass on railway bank ; wind blowing fire to cottage at a great distance); Bailiffs of Eomney Marsh v. Trinity House, L. R. 5 Ex. 208 (ship drifted by waves against plaintiff's sea wall) ; Sharp v. Powell, ante, p. 15 (water from washing van frozen into ice, upon which horse slipped) ; Moore V. Gadsden, 41 Amer. Eep. 352 (ice from melting snow on roof) ; Evers v. Hudson Eiver Co., 18 Hun. N. Y. 144 (ice unremoved in early morning); Sneesby v. L. & Y. Ey. Co., L. E. 1 Q. B. D. 42; 45 L. J. Q. B. 1, C. A. (trucks sent down line so as to frighten cattle); Harris v. Mobbs, L. E. 3 Ex. D. 268 (van left at night by side of road frightened plaintiff's horse) ; Hobbs v. L. & S. W. Ey. Co. L. E. 10 Q. B. Ill (plaintiff and vrife taken to wrong station ; held defend- ant liable for delay, but not for cold caught by wife); MacMahon v. Field, 7 Q. B. D. 591 (defendant let his stables to another, plaintift's horses turned out and caught cold, not to remote); Workman v. G. N. Ey. Co., 32 L. J. Q. B. 279 (land flooded to a greater extent than would have been); Walker v. Goe, 4 H. & N. 350 ; 28 L. S. Ex. 184 (lock fell in from want of repair, not from want of notice by commissioners). Of this class also are those cases where cattle are injured by something done by them in consequence of defendant's negligence in not repairing fences, &c. : see Lawrence v. Jenkins, L. E. 8 Q. B. 274 ; 42 L. J. Q. B. 147 (eating yew leaves); Firth v. Bowling Iron Co., L. E. 3 C. P. D. 254 ; 47 L. J. C. P. 358 (eating iron filings); and see these cases post, Ch. II., s. 1. (») Jackson I). Met. Ey. Co., an a (o) Smith II. L. &. S. W. Ey. Co., supra; Crawfordsville r. Smith, 41 Ami-r. Eep. 612 ; Cosgrove v. New York Ey. Co, 41 Amer. Eep. 355 (no warning- sig- nal, horse beyond control, got over line). (16.35) 12 DEFINITION AND DIVISION OF SUBJECT. in any case, but it is apprehended that this is not the ground of the decisions cited in the note; but the real ground of those deci- sions is that the defendants' acts and not the acts of third parties were the "proximate cause of the injury," but if the acts of such third parties had been the proximate cause of the injury the de- fendants would not have been liable (p). [*18] *Where the intervention is by the forces of nature, it should be observed that, where there is what is called an act of God, or an inevitable accident, the defendants will not be liable. In such cases there is not only such an intervention as may make the acts of the defendant remotely connected with the damage, but also such as ren- der the acts of the defendant positively and entirely unconnected (3)- The act of God is no defence except in cases where the defend- ant can show that the damage would equally have happened if he had done his duty (r), and care must be taken to see whether the accident is due to an act of God or to a contemporaneous act of the defendant (s). If a storm, though unusual, is not unprecedented, it does not come within the category of acts of God (t). If the defendant can show that he has provided for every probable contin- gency he is not liable further, but may excuse himself for not pro- viding for something which is contrary to all previous experience (m). [*19] A curious case, where the injury was held not to be *too remotely connected with the breach of duty, was the following : A young child, of four and a half years, was found with its foot cut off, shortly after leaving home, on the railway, close to where a foot path crossed the line. There was no gate, although it was the de- fendant's suitable duty to place one across the path. Had the gate been there the child might have turned back and not gone on the line, so that the omission to put the gate might be the cause of the child going there. It was not suggested that there was any con- tributory negligence. It was held that the child being found in- (p) See this question discussed posf, Ch. V., Contributory Negligence. (q) G. W. Ey. of Canada v. Fawcett, 1 Moo. P. C. N. S 101 (storm of unu- sual violence breaking down railway line): Alleghany City v. Zimmerman, 40 Amer. Eep. 649 (flag blown do^Ti in storm). It is said in the latter case that a " man is n6t liable for injuries arising from aconjunctionof his own faults with circumstances of an unprecedented nature. ' ' But in fact the injury was wholly caused by the storm. (r) Seeder Fry, J., in Nitfo-Phosphate Co. v. L. & St. K. Docks, L. E. 9Ch. D. 513; City of Philadelphia v. Gilmartin, 71, Pa. St. 140, per Agnew, J. ; Keighley's Case, 10 Eep. 130 a; see Withers v. North Kent Ey. Co., 27 L. J. Ex. 417; and see numerous cases as to carriers — see "Brown on Carriers," and see post, Ch. III. s. 8. ■ (s) Dixon V. Met. Board of Works, 7 Q. B. D. 418 (opening the water-gates of a sewer in time of flood) ; Philadelphia Ey. Co. v. Anderson, 39 Am. Eep. 787 (washing down by unusual flood, of faultily-constructed railway bank). (t) Dixon V. Met. Board of Works, supta. (u) Smith V. Musgrave, S. C. ; Fletcher v. Smith, 2 App. Cas. 781 ; 33 L. J. Ex. 70; Blyth v. Birmingham Waterworks, 11 Ex. 781. (1636) " PROXIMATELY." 13 jured upon the line was sufficiently connected witli the bifeach of duty in not putting up a gate to render defendant liable (x). It may be that the negligent act of the defendant would probably by itself, and unassisted, have produced the injury, but that, in point of fact, the defendant's act has received assistance towards producing the injury, or has set in motion other causes tending to produce the injury. In such cases the defendant will be liable. And even if the defendant's act could not have done the injury, except it had received such assistance, or set in motion some other cause, yet it is apprehended the defendant would in many cases be held liable, although it is impossible to say in what cases he would be so held. If defendant's act were very much the most efficient cause he would be liable ; if some other cause were very much the most efficient he would not be liable ; but where the defendant's act and some other cause contribute with some degree of equality towards the production of the injury, it would be, as a matter of fact, a great difficulty to decide whether the defendant is liable. Possibly it may be said that if the *defendant's act contrib- [*20] - uted in a material degree he is liable. For instance, if the defendant leaves a cart unattended in the street, and a person passing strikes the horse, which runs over the plaintiff, the defendant would be liable, although the act of a third person was one immediate caus'e of the injuiy ; for the leaving the cart unattended was a negligent act, the probable consequence of which would be that the horse might start (y). The defendant's negligent act is, therefore, the proximate cause of the horse start- ing. In a recent case of Clark v. Chambers (z), it was held, that, the act of the defendant being the primary cause of the injury, it was immaterial that the act of a stranger was the immediate cause. It is not quite clear what meaning is intended to be attached to the word primary ; but from the whole of the judgment it appears that the same doctrine as that stated above is intended to be laid down, viz., that when a negligent act is done which will probably lead to injury, and which does lead to it, it is immaterial through what probable steps it passes. It should, however, be observed that Clark V. Chambers was one of those cases in which the defendant is dealing with a dangerous thing, of which he is bound to take especial care; but in truth that is the very reason why his not taking care is held to be the chief cause of the mischief. If I let (x) Williams v. G. W. Ey. Co., L. E. 9 Ex. 157; 43 L. J. Ex. 105. In Sin- gleton V. East. C. Ey. Co., 7C. B. N. S. 287, it did not appear that defendants had neglected any duty, and there was nothing to show how the child got on the line. (y) See Lynch v. Nurdin, 1 Q. B. 29, where a child got into a cart standing at a door nnwatched ; and lUidge v. Goodwin, 5 C. & P. 192, where a passev- bv struck a horse. (z) Clark v. Chambers, L. E. 3 Q. B. D. 327 ; 47 L. J. 439 (defendant put spikes upon a barrier across roadway, and a stranger moved the barrier on to the foot-path). (1637) 14 DEFINITION AND DIVISION OF SUBJECT. a good-tempered dog loose in the street, and a stranger strikes him and is bitten, the bite is not a probable consequence of my act; but if the dog were bad-tempered, the bite would be the probable con- sequence (a). [*21] *There is also a class of cases where it has been sought to recover damages from the defendant who has by his acts neglected a daty which he owed to a third party, or committed a breach of contract with a third party, and the effect of such neglect of duty or breach of contract has been to injure the plaintiff, and it has been held that the act is too remotely connected with the injury (6) ; but, as has been already stated, if he owes a duty towards the plaintiff, (although his contract may be with a third party), he is then brought, as it were, into connection with the plaintiff, and his act is not too remotely connected with the injury (c). It is no defence that the injury which has, in fact, happened, is by reason of other circumstances greater in degree than would probably happen (d). For instance, if a man negligently sets fire to his own house it is not probable that he will burn down the whole street, yet he will be liable for the injury done to the house at the far end of it; but if a lighted stick flew into an adjoining street and there frightened the plaintiff's horse, he would not be liable for the consequent injury as being too remote. Where, how- ever, the injury done by the negligence of the defendant is separ- able from that arising from another cause, so that it can be fairly seen how much of the injury is due to the defendant's negligence and how much to another cause, the damages may be apportioned (e). [*22] *It is no defence where an injury is done in consequence of a breach of duty by the defendant to say that the same injury would have happened by reason of some other cause if the defend- ant had not neglected his duty (/), if after all it was the defend- ant's act which caused the injury. (a) Mangan v. Atterton, 4 H. & C. 388 (machine left open in market-place, played with by boy, is practically overruled by the above case of Clark o. (i) Cattle V. Stockton "Waterworks Co., L. E. 10 Q. B. 453; 44 L. J. Q. B. 139. (The defendants negligently laid a pipe so that water leaked out upon K.'s land. K. employed plaintiff to dig a cutting through the land at a price. In consequence of the wet plaintiff could not make a profit. Held, that whether K. could sue or not for himself, or as trustee for plaintiff, plaintiff could not sue.) (c) Levy v. Langridge, 4 M. & "W. 337; Lumley v. Gye, 3 E. & B. 216; Heaven v. Pender; see these cases ante, pp. 7, 8. (d) See Smith v. L. & S. W. Ey. Co. in E.xch. Ch., supra. See al&o post, Con- tributory Negligence, Ch. V. (e) Workman v. G. N. Ey. Co., 32 L. J. Q. B. 279 (plaintiff's land would have been flooded to a certain extent, but was so to a greater extent by defend- ant's embankment) ; Nitro-Phosphate Co. v. L. & St. K. Docks, L. E. 9 Ch. D. 503 (effect of defendant's embankment increased by act of'Grod). See post. Damages. (/) Nitro-Phosphate Co. v. St. K. Docks, supra. (1638) EVIDENCE FOR JURY. 15 In an action of negligence as in other actions, it is for the judge to say whether there is any evidence of negligence at all to go to the jury, and if not, to direct a non-suit (g) ; and it is now well settled in England that a mere scintilla of evidence is not sufiBcient to go to the jury (h); though in America it would seem that the ques- tion of negligence is always a question for the jury(«). Upon any given state of facts it is for the judge to say whether negligence can legitimately be inferred, and the jury whether it ought to be infer- red (fc). Where, on the other hand, there is conflicting evidence on a question of fact, or there are two difPerent and yet reason- able views which may be taken, the judge, whatever may be his opinion as to the value of the evidence, must leave it to the jury (l). The duty of the judge is to declare negatively that there is no evi- dence to go to the jury, but not affirmatively that a certain issue is proved (m). The judges have sometimes been very astute to dis- cover that there is no evidence to go to the jury when it would seem there is some apprehension of prejudice, as in the case of *E1- [*23] lis V. Gt. W. By. Co., L. E. 9 C. P. 551; 43 L. J. C. P. 304, where four judges thought there was nothing for the jury where the plain- tiff swore that he heard no whistle, and heard no porter call out, because the fact of his not hearing was only negative evidence; two judges however dissented, and the judge at the trial bad directed the jury that there was evidence. Having now, as it is hoped, explained the definition of negli- gence, I proceed to consider the three divisions of the subject: 1. Neglect of duties requiring ordinary care. 2. Neglect of duties requiring skill, or an extraordinary amount of care. 3. Neglect of duties requiring less than ordinary care. {g) Daniel v. Met. Ey. Co., ante, p. 2; Davey v. L. & S. W. Ey., 12 Q. B. D. 70. (A) Gee v. Met. Ey. Co., L. E. 8 Q. B. 161; 42 L. J. Q. B. 105; Met. Ey. Co. V. Jackson, 47 L. J. H. L. 303; L. E. 3 App. Cas. 193. (i) Shearman on Negligence, p. 18. (k) Met. Ey. Co. v. Jackson, supra. h) D. W. & W. Ey. Co. V. Slattery, L. E. 3 App. Cas. 1155. (m) Per Lord Penzance, ib. at p. 1181. (1639) 16 ORDINARY CARE. [*24] CHAPTEE II. NEGLECT OF DUTIES REQUIRING ORDINARY CARE. Section I. Neglect of Duties requiring Ordinary Care. By the expression "duties requiring ordinary care" is meant those duties devolving upon persons who do not hold themselves out as having, nor is there demanded of them, any peculiar or ex- traordinary care or skill. Different persons have of course, differ- ent duties to perform in their different employments or positions in life, and what is ordinary care in one class of persons may not be so in another, and as has been already stated, ante, pp. 2, 10, no act can be said to be per se negligent or careful, but only in relation to circumstances. Thus more care will in most cases be expected in a person of education than in an ignorent person, in an adult than in a child; more care will be required in driving in a crowded street ,f than in an empty one, and so forth; but with respect to these dis- tinctions the law pays no further regard to them than to expect all men to use such care as reasonable persons ought to do in such matters, be the same more or less. Upon the other hand, if a per- son undertakes to do something which, if not done with great skill or care, must be injurious, or, if he i^ doing something for his own advantage, then the law demands that he shall bring to the execu- tion of that which he has engaged to do the necessary skill, and [*25] take the *neces8ary care in the execution of it. And where the law thinks it expedient that persons exercising certain impor- tant functions should be made more than ordinarily careful, it will compell them to be so. These cases will be treated of in Chapter III. Amongst cases illustrative of ordinary duties requiring no parti- cular skill or care per se, and only requiring ordinary caxe being done for the mutual benefit of both parties, are all those which arise out of employment of services for reward, or where persons come into collision in the course of pursuing th«ir ordinary avoca- tions. The law relating to master and servant will be found post (a), (a) Ch. II. s. 6. (1640) SKILLED LABOUR. 17 and all that it is desired to say here is that in all cases where ordin- ary services are rendered for reward, both the employer and em- ployed are liable for ordinary negligence towards one another. Such, for instance, is the case of an ordinary bailee for hire, who is bound to take ordinary care of the thin^ intrusted to him by the bailor, as in the case of deposits of goods where the bailee receives money for his care (6). Also where chattels are let to hire, the hirer must take ordinary care of them (c). In the case of the employment of skilled labour different con- siderations will arise. It will be seen post, Chapter III., that there are many persons from whom the law requires an extraordinary amount of skill, and who will be held liable for what in others would appear to be slight neglect. These will mostly be found to be either public officers to whose services the law compels people to have recourse, or professional persons who have a monopoly or privilege to perform certain services (d). But where a*private [*26] person who is free to choose wh(fai he will employ selects a person who holds himself out as a skilled labourer, it does not appear that the law will in general hold the person so selected liable for "slight" 'negligence. It would seem, however, that he must show some de- gree of skill, and the absence of skill would render him liable for negligence (e). Thus a carpenter must show some knowledge of carpenter's work (/), a builder of building, &c., and it is obvious that the amount of skill which ought to be shown will vary accord- ing to the particular circumstances. The more skill is required for the performance the more will be demanded in the performance, at the same time that due allowance is made for the difficulty of per- formance. So, also, the amount of skill and care demanded will be greater or less according as the consequences of neglect are more or less serious. It must be owned that the question, what amount of care is to be expected from one who holds himself out as a person competent to do work in an ordinary trade which he follows, is very difficult to answer. The difficulty arises in defining " skill." As soon as it is shown that a man holds himself out to be a person of skill he is then bound to show more than ordinary care. Those cases in which I have thought there can be no doubt upon the subject 1 have placed in the third chapter ; but though there may be no doubt that a medical man is bound to show more than ordinary care, yet it is very doubtful whether the same rule applies to a watchmaker, or to the case (g) cited in Mr. Robert Campbell's excellent lectures, (b) Searle v. Laverick, L. E. 9 Q. B. 122. (c) Shroder v. Ward, 13 C. B. N. S. 412 ; 32 L. J. C. P. 150 (contract to de- liver up old barge in same state as when hired) ; Handfor v. Palmer, 5 Moore, 76 ; Deane v. Keate, 3 Camp. 4 (horse cases). (d) Campbell, 29, 96, 2nd ed. (e) Campbell, p. 6, 2nd ed., citing D. xix, 2, 9, s. 5. (/) Basten v. Butler, 7 East, 479 ; Brown v. Davis, 7 East, 480, note (o). (g) Hinshaw v. Arden, Court of Sessions Cases, vol. viii. p. 933. 2 LAW OF NEG. (1641) 18 OEDINART CARE. of a finislier of lustres, 'and it is. still more doubtful whether it ap- plies to a bricklayer or carpenter. As has been already said, no act [*27]is negligent per se, but is only so where it is a breach of *duty, and every man is in duty bound to bring a reasonable amount of skill to the performance of work which he holds himself out as being capable of performing, and it is probably impossible to tell where the law would draw the line, and say all those on this side of the line are skilled in the sense that they are liable for slight negligence, and those upon the other side, although in one sense skilled, are only liable for ordinary negligence. It will be undoubtedly seen (h) that the law does regard certain skilled persons as bound not merely to exercise such ordinary skill as may be used in their pro- fession generally, but to approve themselves to be absolutely skilful. We take it, then, to be the law, that while the jury consider whether in the case of an ordinary avocation the person exercising it has done so with the ordinary skill used by sensible men of his craft, yet that in certain cases more than this sort of skill will be demand- ed. The simple practical test is to consider what is the duty which the particular person has to fulfil, and whether he has reasonably fulfilled it. Thus a person who holds himself out as a valuer of ecclesiastical property, although not bound to possess a precise and accurate knowledge yet is bound to have a knowledge of the gen- eral rules and of the broad distinction between a valuation, between outgoing and incoming tenants and outgoing and incoming incum- bents (i). Thus a manufacturer of any ordinary article is bound to use reasonable care and skill in seeing that it is fit for the parti- cular purpose for which it is made or used ; and he is responsible for latent defects. The seller of an article which is to be made warrants that article to be fit for the purpose for which it is sold (k), but in the case of carriers the rule is somewhat different. There the carrier only [*28] warrants that the carriage is free *from defects, patent or latent ; except such as no care or prudence can discover (I). The seller or letter out of a specific article does not warrant that that specific article is reasonably fit for the purpose for which it is hired or bought (m). But there is an implied contract on the part of the seller or letter out of a specific article that he will not by want of reasonable care allow it to become worse than it was when the con- tract was niade (n). Persons coming into collision in their ordinary avocations are liable for ordinary negligence, for their duty is to take ordinary care. The owner of premses is liable, as I think, for ordinary negli- (h) See Ch. III. (i) .Jenkins v. Betham, 15 C. B. 168. (Jc) Randal r. Newson, 2 Q. B. D. 102. (l) Eeadhead v. Mid. Ry. Co., L. E.'4 Q. B. 379, post, Ch. III., s. 1. (m) Robertson v. Amazon Tug Co., 7 Q. B. D. 598. (») Per Brets, L. J., in Robertson v. Amazon Tug Co., at p. 606. (1642) RIDING AND DRIVING. 19 gence to the persons whom he has allowed to come there for their advantage ; he has undertaken no special responsibility with respect to them as he would have done had he invited them for his own benefit, and is not bound to take more-than ordinary care ; but I am inclined to think he has taken some higher duty upon him than that of a gratuitous bailee (o). So, also, the liability of host to guest or visitor at his house stands upon the same ground (p). The relationship here is not that of inviter and invited, where the inviter is liable as we shall see (q) for slight negligence ; but the guest takes the premises as he finds them, subject only to the duty of the host to warn against any trap. Neither is it intended to speak here of " host" in the sense of innkeeper, whose position is, as will be seen (Oh. III., s. 10), that he is bound to exercise more than ordinary care. The visitor seems to be in the position of a bare licensee, and accordingly it has been said that the host is only *liable for something in [*29] the nature of a trap (r); but it is to be observed that it is also said that he ought to take reasonable care, that is to say, ordinary care (')■ So where a man driving a trap offers a seat to a friend, each pur- suing his own business or pleasure, he is liable for ordinary negli- gence (t). The Court said that he is liable for gross negligence only, but I am inclined to think, for the reasons presently given, that he is liable for ordinary negligence (m). Persons driving or riding upon the highways are in the exercise of their lawful and equal rights, and the law imposes upon them the duty of taking ordinary care not to injure one another ; and the same with regard to foot-passengers and drivers, for as foot-pas- sengers and drivers of vehicles have an equal right to use the high- way (x), so they have equal duties to take care to look out for each other (y). The question of the " rule of the road," as it is called, often gives rise to some difficulty. It should be remembered that persons are not bound to keep to the right side of the road (z), for there may be many good reasons for going to the other side ; but when they are on the other side they ought to exercise more than ordinary care. (o) Indemaur r. Dames, L. R. 2 C. P. 311. These cases will be found treated of more fully, -and the question discussed in s. 2, Duties of Owners of Property, p. 30. (p) Southcote V. Stanley, 1 H. & N. 248. (q) Post, s. 2, p. 37, and Ch. III., s. 2. (r) See per Bramwell, B., in Southcote v. Stanley, mpra. (s) See this question discussed pos/, Ch. II., s. 2, p. 37. (i) Moffatt V. Bateman, L. R. 3 P. C. 115. (u) See post, s. 2, pp. 37, 38. (x) Boss V. Litton, .5 C. & P. 407. „ , . (y) Cutton V. Wood, 8 C. B. N. S. 569 ; 29 L. J, C. P. 333 ; Hawkins v. Cooper, 8 C. & P. 473 ; Williams v. Richards, 3 C. & K. 81 ; Meyer v. Lindell Railway, 6 Mo. App. 27. See also Ch. V., Presumptions of Negligence. (z) Puckwell V. Wilson, 5 C. & P. 375. (1643) 20 OKDINARY CARE. There may even be occasions when it wotild be negligence to driTe upon the right side of the road, as when another is on his wrong [*30] side (a). It seems to be prima facie evidence *of negligence against a vehicle which has run into another vehicle that the former was on its wrong side. See Chapter VI., Presumptions. Where a pian is walking in a public street, and a barrel falls upon him from a window and injures him, he is entitled to an action against the owner of the barrel, if such owner has been guilty of ordinary negligence (6). This case, and those above mentioned, afford very good illustrations of the truth that an act is not negli- gent per se but only in relation to circumstances, and that in some circumstances more care is required than in others. A man driving or lowering a barrel in Cheapside must use more care than would be required of him in a country lane ; but this is a distinction of fact and not of law. Persons who undertake to manage ships are undertaking a mat- ter requiring more skill and involving probably more serious dan- gers than riding or driving. The question of their liability is somewhat complicated, and will be found treated of in the last sec- tion of Chapter III., post. Sectios II. Neglect of Duties by Owners and Occupiers of Real Property. The rights which a man has over his own land are, like other rights, subject to modification by the conflicting right of others. The allegation of negligence presupposes, as we have seen (c), the existence of equal rights. Where a man is exercising a right upon his own land, and, in doing so disturbs the right of another, the [*31] former right *may be dominant or subordinate, in either of which cases no question of negligence arises. If A. digs a hole in his land, and B. who has a right to personal security (but no right to be on the land), falls into it, A.'s right is paramount to B.'s and no question of negligence arises (d) ; but if A. had permitted B. to come upon his land, the rights would be equal, and questions of negligence would arise, viz., whether the pit was negligently left unguarded, and whether B. was using his right of being there with care (e). If A is owner of the surface of the land, and B. has (a) Clay v. "Wood, 5 Esp. 44 ; Wade v. Carr, 2 D. & E. 255 ; Turley r. Thomas, 8 C. & P. 103 (a saddle-horse case). (h) Byrne v. Boadle, 2 H. & C. 722. This class of cases, however, will be found under the heading Neglect of Duties by Owners and Occupiers of Prop- erty, s. 2, infra. (c) Ch. I., p. 3. (d) Knight v. Albert, 6 Penn. St. 473. See post, as to excavations, p. 39. (e) WUliams v. Groucott,4 B. & S. 149. (1644) EIGHT OF SUPPORT. 21 rights of milling beneath, or beneath adjoining land, A.'s right of support for his land is paramount, and it is no answer that B. has used utmost care (/). So if A. digs a hole near the edge of his land, and causes B.'s ancient house or one which has been built twenty years to fall no question of negligence arises, but a wrong has been committed, whatever care may have been taken (g). These questions of right of support do not come within the bounds of this treatise. But in the case of a house recently built upon adjoining land, it may be that the rights are equal, and that the adjoining owner is answerable for negligence only in the exercise of his right to use his own *land. This is a question, however, which is [*32] involved in much doubt. Upon the one hand many expressions of the judges will be found which support the proposition above stated (h), while the case of Gayford v. Nicholls (i) is, I think, a clear authority to the contrary. From the judgment of the judges in the House of Lords in Angus v Dalton (k) (see particularly the judgment of Lord Penzance), it appears that if an owner of land builds a house his neighbour may dig his own soil away so as to bring the house down ; but Lord Penzance said that if the matter were res integra he should have held the contrary. Lord Black- burn ( I) said, I see no ground for doubting that the right to forbid digging near the foundations of a house without taking proper pre- cautions to avoid injuring it, is for the reasons given by Lush J. (?«), one very little onerous to the neighbour, and one which is expedi- ent to give to the owner of the house." No doubt the learned Lord of Appeal is speaking of a house which had been built for twenty years; but it seems that the same reasoning would apply to a house just built. The question of negligence was in no ways raised upon the facts in Angus v. Dalton. The text viriters appear generally to doubt what the law is. After saying that the surface owner is entitled as against the miner to support, Messrs. Shearman and Redfield, in their work upon the " Law of Negligence," s. 506, (/) Humphries r. Brogden, and other cases. (g) It is said in Sherman, s. 497, that the true test is, that, although not liable for the natural consequences of withdrawing the support, "yet a man must act with such care and caution that his neighbour shall suffer no more injury than would have accrued if the structure had been put where it is with- out ever having had the support of his land." This would seem to be a very diflicult test to apply practically. In Hilton v. Earl Granville, 5 Q. B. 701, and in Hilton v. Whitehead, 12 Q. B. 734, in one count negligence was alleged in excavating under a house. It was also alleged in Humphries v. Brogden, but was there superfluous. These matters are discussed at great length in the judgments in Angus & Co. v. Dalton and Commissioners of Her Majesty's Works, 47 L. J. Q. B. 163 ; L. R. 3 Q. B. D. 85 ; 6 App. Cas. 740. See infra. {h) Bradbee v. Christ's Hospital, 4 M. & G. 758 ; Dodd v. Holme, 1 A. & E. 493 ; Davis v. L. & Blackwall Ry. Co., 3 Scott 699 ; 1 M. & Gr. 799 ; Harris v. Eyding, 5 M. & W. 60, and other cases. (i) Gayford v. Nicholls, 9 Exch. 702. (k) 6 App. Cas. 740. ll) P. 827. (m) 3 Q. B. D. 89. (1645) 22 OWNERS OP REAL PROPERTY. say that "it does not appear to have been decided whether the sur- face owner has a similar right to support for buildings erected by him upon the land, but we think he should have. The miner is [*33] undoubtedly liable for damage done to such *buildings by his negligence." It does not appear whether the writers are speak- ing of lateral support or not; nor whether they are speaking of ancient houses or not. Mr. Wharton says, s. 929, " Wherever the owner of the soil has the right, so far as concerns adjoining build- ings, so to excavate he must exercise his right with the diligence good builders are in this respect accustomed to employ in similar circumstances;" and he cites Jefferies v. Williams (n) and other cases; but Jefferies v. Williams was not a case of an owner. Here again, also, the meaning of the passage is somewhat obscure. Mr. Goddard, in his admirable treatise on the " Law of Ease- ments" (2nd ed. ), p. 41, after pointing out that it was thought in Eogers v. Taylor (o) that there was a distinction between subja- cent excavations and adjacent, determines that " support for build- ings is an easement which must be acquired, not a natural right {p). So, also, a man may, after his land has been excavated for twenty years, acquire an easement for support of the adjacent land in addition to his natural right." So far he appears to be dealing with a paramount right, and he does not say what would be the ef- fect of excavating negligently near a modern house. He remarks that " though it is rather beyond the scope of this treatise, the mere fact of contiguity of buildings imposes an obligation on the owners to use due care," and it is submitted that this might be ex- tended to the point in question. Mr. Gale discusses this question at considerable length (see 5tb ed. by Gibbons, 419 — 446). — In the case of adjoining buildings he states the law to be, that a man must use no unnecessary violence in removing an encroachment, but, with this limit, is entitled to the [*34] free use of his own *property; and in the case of excavating near a modern house, p. 446, note, " if the mere removal occasions the damage, he is not liable, however negligent ; but if the manner of the removal extends his acts beyond the limits of his own prop- erty, and is a trespass upon the plaintiff's land, he is liable." The doubtful state of the law is also noticed in 2 Wms. Saunders, note to Smith v. Martin, p. 802, note (a). Oa the whole, I think it is not unreasonable to say that an owner of land has a right to dig in his own ground, close beneath or close beside his neighbour's modern house, and his neighbour has a right to have a house on the edge of his own land, and the law reason- ably regards the two rights as equal ; and, as a consequence, a neg- ligent exercise of such rights is actionable as negligence; but in M Jefferies v. Williams, 5 Exch. 792. fo) Rogers v. Taylor, 2 H. & N. 828 ; 27 L. J. Ex. 173. (p) See the judgment of the Lord Chancellor in Angus v. Dalton, 6 App. Cas. 740. (1646} ORDINARY CARE. 23 the case of an ancient house, the law reasonably says that the right of the owner of the house is paramount. In the case of adjoining houses there can, I think, be no doubt that a presumption may arise from length of time, or other cir- cumstances, of an absolute right to lateral support (q), and then the question of negligence does not arise, for the right to support is paramount; and further, that where this presumption cannot be made, it often becomes a question whether, from the mere fact of contiguity, the defendant has been negligent or not in removing the lateral support (r), and if he has, he is liable to an action for negligence. *So, also, in the case of adjoining mines, the question will [*35] arise whether there is a paramount right, or whether the rights are equal? (s) If there is a mere user of a paramount right of property, there is no ground for an action of negligence ; but if something is done by the owner of property which is not the necessary or ordi- nary user of his property, but something which alters the character of his property and so injures his neighbour, the question of negli- gence arises, for he is no longer in the exercise of a paramount right (t). The duty to take care having arisen, the next question is, what is the amount of care which should be taken ? This is governed by the general principal stated ante, pp. 9, 10, 11, so that where an owner of property is using his property for his own advantage only, he is bound to take more than ordinary care (u); where for the benefit of both parties, ordinary care : and where for the benefit of another, less than ordinary care. The owner of realty is liable, like the owner of personalty, neither more nor less, for negligence (x) ; and is no more responsible for the consequence of the user of it in a manner in which it was never intended to be used than is the owner of personal property (y). Where the rights are equal, as where a person is upon the pre- (q) See per Cockbum, C. J., in Angus v. Dalton, L. E. 3 Q. B. D. at p. 116. See S. C. on appeal, 4 Q. B. D. 162 ; 48 L. J. Q. B. 225 ; 6 App. Cas. 740. It must be borne in mind that Angus v. Dalton was a case where support was claimed for a builcling by land, not for a building by another building. "It is doubtful," says Mr. Goddard, 2nd ed., p. 187, "whether a lateral support for one building from another can be acquired by prescription. At all events, it may Ije acquired by grant, express or implied. ' ' ()•) Walters v. Pfeil, 1 M. & M. 363 ; Dodd v. Holme, 1 A. & E. 493 ; Mas-sey V. Goyder, 4 C. & P. 161 ; Goddard, p. 42 ; Peyton v. London (Mayor of), 9 B. & C. 725 (no occasion to shore up adjoiijing building) ; Chadwick v. Trower, 6 Bing. N. C. 1 (no occasion to give notice to owner — defendant must have notice or knowledge of the danger. (s) Smith V. Kenrick, 7 C. B. 515. (t) Cotnpare Wilson v. Waddell, L. E. 2 App. Cas. 95 ; and Fletchers Smith,, 2 App. Cas. 781. (u) Smith V. Fletcher, L. E. 2 App. Cas. 781. See this case, post, (x) Eeedie v. North- Western Ey., 4 Exch. 244. {y) Fanjoy v. Scales, 29 Cal. 243 (builder placed staging upon the cornice of a building ; held, owner of building not liable). (1647) 24 OWNERS OF REAL PROPERTY. mises in the exercises of a right, as in the right of navigation of a [*36J river (z), or the right of passing along a *highway (a), or some other right (6), or has come by invitation (c), express or im- plied (d), the owner of the property will be liable for negligence of some degree, according to circumstances. Very usual examples of this kind of negligence vyill be found post, Ch. II., s. 2, subs. 1, as to WharfowDers, and Ch. III., s. 8, " Carriers," as to Eailway Companies. The question, what sort of care the owner of property ought to take towards a person invited upon his premises, is governed by the ordinary rules stated ante, pp. 9, 10 and 35, but is, I think, subject to some modification. If for his own benefit only, he is bound to take more than ordinary care (e); if for the mutual benefit of both parties, ordinary care at the least (/) ; and if for the benefit of the person invited, perhaps something less than ordinary care (g). It is not within the scope of the present work to enter into a dis- cussion of the law of Nuisance. But it not unfrequently happens that that which is a nuisance to the public at large, causes an in- [*37]jury to an individual distinct *from that which he suffers in common with the public. For that which he suffeA in common with the public he has no remedy by action, even although he suf- fers in a greater degree (h). Generally speaking, if a nuisance is created, and any one is in- jured by the nuisance in a particular manner, and not in common with the public, an action of negligence will lie (i). This is the principle of the decisions as to injuries arising from excavations or obstructions upon or near to roads and paths upon which strangers have a right to be, and which we shall presently consider. (z) Wliite V. Phillips, 15 C. B. N. S. 245. (a) Church of the Ascension v. Buckhart, 3 Hill, 193 ; Kearney v. L. B. & S. Ry. Co., L. R. 5 Q. B. 411 ; 6 Q. B. 759 ; 40 L. J. Q. B. 285 (brick fell from railway bridge upon plaintiff in highway) ; Byrne v. Boadle, 33 L. J. Ex. 13 ; 2 H. & C. 722 (barrel from window upon plaintiff in highway). (b) Scott «. Liverpool Dock Co., 3 H. & 0. 59 ; 34 L. J. Ex. 17 (sugar bags fell from a lift upon plaintiff, who was there as custom-house officer to inspect) ; Welfare v. L. B. & S. C. Ry. Co., L. R. 4 Q. B. 693; 38 L. J. Q. B. 241 (roll of zinc fell from roof where defendant's man had a right to be ; plaintiff looking at time tables where he had a right to be ; held, that as a matter of fact there was no evidence of negligence). (e) Chapman v. Roth well, El. Bl. & El. 168 ; Smith v. London Bocks Co., L. R. 3 C. P. 326 ; 37 L. J. C. P. 217 ; Tebbutt v. Bristol Ry. Co., L. R. 6 Q. B. 73; 40 L. J. Q. B. 78; Holmes v. North-Eastern Ry., L. R. 6 Exch. 123 ; 40 L. J. Ex. 121. This class of cases comes within our second division, and will be found treated of post, Ch. III. W Indermaur r. Dames, L. R. 2 C. P. 311 ; 36 L. J. C. P. 181. (e) This will be treated of post, Ch. III., division 2, Neglect by Owners of Property. (/) Campbell, 2nd ed., p. 61 ; or perhaps more — see post, Ch. III. iff) This falls within Ch. IV.; but see post, p. 38. (7») Winterbottom v. Lord Derby, L. R. 2 Ex. 316 ; 36 L. J. Ex. 194. (i) Barnes v. Ward, post ; Hounsell v. Smith, post, p. 39. j (1648) INVITATION — NUISANCE. 25 Where there is no nuisance, but a person having come upon the land without invitation (fc) (the owner having only passively ac- quiesced in his coming), sustains injury by reason of a mere defect in the premises, it has been held that the owner is not liable for negligence, for such person has taken all the risk upon himself ( I). So, where the deceased was employed to watch certain premises where the defendant employed workmen with a crane and bucket, and the deceased had nothing to do with the work, but got under the bucket and was killed, it was held that at most he was a bare licensee and that there was no duty cast upon the defendant to see that the deceased did not run into danger (m), but it is not clearly stated whether he had any other or what duty towards him. Thus, where the landlord of a house let it out in- apartments and allowed the tenants to use the roof as a drying-ground for the pur- pose of drying their linen, and the *plaintiff went upon the [*38] roof for that purpose and slipped against the railing round the edge of the roof, which let him through, being out of repair. Lord Cole- ridge distinguished M'Martin v. Hanay (n), where there was a common staircase to several flats, by saying that the staircase was a necessary part of the holding, and it was the landlord's duty to keep it safe. It was an implied condition in the bargain. And the Court held that the defendant was not liable(o). But such owner will be liable for anything in the nature of a trap upon the premises, known to him, and as to which he gives no warn- ing to the licensee (p). He must not do anything to alter the premises, so as to be likely to cause injury, without notice to the licensee (q). Upon the whole I am inclined to think, with Mr. Campbell (r), that the owner is bound to take ordinary care . with respect to a bare licensee. The question is, as I think, one of great difficulty. It is said that the licensee being there merely for his own advantage can only demand that slight care which a gratuitous bailee is bound to display, and so far the proposition is correct; but I am not sure, if a gratuitous bailee were to indicate a place of de- posit, whether he would not be undertaking that that particular place was reasonably fit for the deposit, and if so, a similar argu- ment would apply to an owner who gives leave to come upon his (k) The question of invitation is treated of in Ch. Ill, s. 2. (!) Gautret r. Egerton, L. E. 2 C. P. 371 ; 36 L. J. C. P. 191 ; Hounsell r. Smith, post'. See also Wilkinson r. Fairie, 32 L. J. Ex. 73 ; 1 H. & C. 633 (dark passage and staircase) ; Burchell v. Hickisson, 50 L. J. Q. B. 101 (child falling through railings in had repair). (m) Batchelor v. Portescue, 11 Q. B. D. 474. (n) 10 Court of Sess. Cas., 3rd Series, 411. (o) Ivay V. Hedges, 9 Q. B. D. 80. (p) Southcote «. Stanley, 1 H. & N. 247; Seymour f. Maddox, 16 Q. B. 326; White V. France, L. E. 2 C. P. D. 308; 46 L. J. C. P. 823; Belch v. Smith, 7 H. & N. 736; Pickard v. Smith, 10 C. B. N. S. 470. (q) Corby v. Hill, 4 C. B. N. S. 566; 27 L. J. C. P. 318; Gautret v. Egerton, si'pra. (r) pp. 119-122. See also Wharton, s. 349. (1649) 26 OWNERS OF REAL PROPERTY. property, viz., that he has undertaken that his property is in some degree lit for the licensee to use. If this be so, it seems that he ought to take ordinary care. The Courts, however, have distinctly held th'at the owner is only liable for "gross" negligence, because [*39] he is in the same position *as a gratuitous bailee (s) ; but I am inclined to think the assumption is not accurate. I think that the question is only further obscured by insisting that the owner must be guilty of an act of commission to render him liable to the licensee (t). It may be very frequently the case that omissions are slighter neglects than acts of commission; but they may very well be the contrary, and sometimes are so. If the neglect be of a grave and obvious character, it would matter nothing whether it was an omission or commission. For instance, it would matter nothing whether a signalman omitted by grave and obvious negligence to pull the handle to direct an express upon its proper line, or whether he negligently pulled the wrong handle. Where there is something done by the owner which is in the nature of a nuisance or of a wanton injury, he will be liable to an action for negligence even by a trespasser (m), as if an owner of premises with great recklessness shot a trespasser, or if the owner set spring guns upon his premises and injure a trespasser (x). But where a trespasser took shelter from a storm in a ruinous house not fenced 'off from the road, and a wall fell upon him and injured him, it was held that he could not recover (y). Upon this principle it has been held that where an owner or oc- cupier of lands makes an excavation upon his land so near to a public highway as to be dangerous under ordinary circumstances to persons passing by, it is his duty to take reasonable care to guard such excavation ; and he is liable for injuries caused, even if such persons are consciously (z) or unconsciously (a) straying from the way (b). [*40] *Where the excavation is at a considerable distance no such care need be taken. What is a considerable distance it is impossi- ble to say, and, in truth, each case depends upon its own facts, (c) (s) Moffatt V. Bateman, L. E. 3 C. P. 115; Corby v. Hill, supra; Gautret v. Egerton, supra. (t) See Southgate v. Stanley, 1 H. & N. 248"; Corby v. Hill, supra. (m) Degg V. Midland Ev., 1 H. & N. 773, at p. 780. (x) Bird V. Holbrook, 4 Bing. 628 ; Wooten v. Dawkins, 2 C. B. N. S. 412. (y) Lary i'. Cleveland Ey. Co., 41 Amer. Eep. 572. (2) Blythr. Topham, Cro. Jac. 158; Knight d. Abert, 6 Penn. St. 472. (a) Hoimsell v. Smith, 7 C. B. N. S. 731 ; Barnes r. Ward, 9 C. B. 392. (6) It is no answer to say that some other persons are bound by statute to fence the highwav, Welter r. Dunk, 4 F. & F. 298. (c) In Hardeas'tle v. South Yorks Ey., 4 H. & N. 67, and in Binks v. S. Y. Ey., 3 B. & S. 244 ; 32 L. J. Q. B. 28, twenty-four feet was held to be such. In an American case, one or two feet off the road was held sufficient to protect the defendant from an action, Howland v. Vincent, 10 Mete. 371 ; but this case is of doubtful authority. See Shearman, p. 599 ; Bigelow on Tort.s, p. 69*8. As to excavations, &c., made by corporations acting under statutory powers, see Ch. Ill, s, 7, post. (1650) DANGEROUS THINGS. 27 A person who negligently or intentionally set fire to any thing on his oWn land -was liable at common law to another, if the tire extended to his property and injured it (d), and the statute 6 Aune, c. 35, and the Buildings Act, 14 Geo. Ill, c. 78, which refer only to accidents, do not protect a person guilty of such culpable negli- gence (e). "Where a hay-rick was carelessly put together and ignited, doing damage to the plaintiff's cottage, the jury was directed that the plaintiff could recover in an action for negligence (/). It has been held in America that a person who uses a steam-engine on his own land ought to use the ordinary means of preventing the sparks from doing injury to his neighbour (g)] and in another case where a man set lire to brush and the wind blew the sparks upon his neighbour's land, it was said that he was liable whether he might or might not have reasonably anticipated the particular manner in which the fire was actually communicated (h) ; and so in another case (/), the defendants were held responsible although they could not reasonably have anticipated that such injury as occurred would be *caased by the fire (k). In England the general princi- [*41J pie (I) of the common law that when a man brings upon his land, or uses there a thing of a dangerous nature for his own advantage (m) he must keep it in at his own peril, and that he is liable for the consequences if it escapes and injures his neighbour witheut any negligence being alleged, has been fully established (n). Such cases are, therefore, outside of the scope of the present work, when it has once been determined that the thing kept is so dangerous as to come within the rule. The question, what is a dangerous thing ? must be one for the juiy. Whether the thing is sufiSciently dan- gerous to be a nuisance and to be kept at a man's peril must depend on the locality, the quantity, and the surrounding circumstances (o), and I am not aware of any case which has decided that setting lire to weeds or agricultural produce comes within the rule. In the (d) Year Book, 2 H. 4, f. 18, pi. G. (e) Filliter v. Phippard, 11 Q. B. 347 ; Tiilierfield ,. Stamp, 1 Salk. 13, note (a). (/) Vanghan v. Menlove, 7 C. & P. 525 ; 3 Eing. X. C. 468 ; for injuries from explosions of gas, see Ch. Ill, s. 5. (g) Teall v. Barton, 40 Barb. 137. (A) Higgins v. Dewey, 107 MJass. 494. See Averitt v. Murrell, 4 Jones, N. C. 323 ; Fahn v. Reichart, 8 Wise. 255. (i) Smith V. L. & S. W. Ey. Co., infra. (k) As to the spreading of a fire beyond a point where the plaintiff himself might have stopped it, see Kuhn i'. Jewett, ante, p. 15. {/) The keeping of savage animals is the best known illustration of this prin- ciple. See post, p. 53. (m) Anderson v. Oppenheimer, post, p. 47. (n) Jones v. Festiniog Ey. Co., L. E. 3 Q. B. 733 ; 37 L. J. Q. B. 244 (sparks from engine) ; Fletcher v. Eylands, L. E. 3 H. L. 330; 37 L. J. Ex. 101 (water in mine. ) (o) Heeg V. Licht, 36 Amer. Eep. 654 (gunpowder in adjoining building). (1651) 28 OWNERS OP REAL PROPERTY. caso of sparks from railway engines, it has been held that a railway company are liable at common law if they do not prevent their sparks from doing injury, and the Legislature has interfered to pro- tect the use ; and the users of such engines are then acting in pur- suance of parliamentary powers, and only liable if negligence is proved (p). In Tuberfield v. Stamp (q) it was held by three judges [*42] out of four, upon *the principle that every man must use his own property so as not to hurt another, that a farmer was liable in an action for negligence for injury done to corn in another's close by burning stubble, unless he proved that a sudden storm had risen. Turton, J., dissented, on the ground that such a doctrine would discourage industry. The allegation that he negligenter cus- todimt was (it is presumed) proved, and if so the decision seems clearly sound on that ground ; but no doubt it can be supported on the principle stated in the text, viz., that the defendant was bound to keep the tire on his own premises. The American cases, which will be found in " Shearman on Negligence," Chapter XX., and " Wharton on Negligence," Book III. Oh. V., are instructive and very conflicting, but to discuss them would take up too much space. If a man make a fire in a field " in a sequestered spot and on a quiet day then there is no inculpatory negligence ; otherwise on a windy day, when buildings are so near as to make ignition proba- ble" (?-); and in like manner where a brewery being near to the plaintiff's factory was negligently allowed to throw off sparks in a populous place it was held that the defendant had a higher degree of care cast upon him than if the brewery had been built in the country or in a part of the city where there were no houses in its immediate vicinity and that he ought to make himself acquainted with the most scientific ways of preventing the emission of sparks, &c. (s). The prevailing rule in America seems to be that negli- gence is a necessary element in the action. It is obvious that what may be very negligent in a dry or stormy country may be consist- ent with reasonable care in a humid and mild climate. In Smith v. South "Western Railway Company (an English case), ante, Ch. I., p. 17, where the fire extended from the railway line across a [*43] *hedge and stubble field to the plaintiff's cottage, the Court said that the railway coippany, having been negligent in leaving cut grass upon the bank in dry weather, were answerable for all the consequences. The company were authorized to run engines and therefore to emit sparks, and were not liable except for negligence (p) Vaugh!in v. Taff Vale Ry. Co., 5 H. & N. 685 ; Brand v. Hammersmith Ey. Co., L. E. 4 H. L. 171 ; frueman v. L. B. & S. C. Ey. Co., 25 Ch. D. 423. The first ca-se is said by Bramwell, L. J., to have been wrongly decided; see Powell r. Fall, infra. In the ease of locomotives under the Highway Acts the owners are not protected. See Powell v. Fall, 5 Q. B. D.597 ; 49 L. J. Q. B. 428. (q) Tuberfield D. Stamp, 1 Salk. 1.3; Vaughan ti. Menlove, 3 New Cas. 468. "Wharton on Negligence, s. 865 ; see Piliter v. Phippard, 11 Q B. 347. Gagg V. Vetter, 41 Ind. 228. (1652) i:i WATER. 29 (t). The question of remoteness of damage is treated of ante, Ch. I., p. 15. Of a similar character are the cases where a man plants a poison- ous tree, or uses a dangerous substance upon his land ; he must, at his peril, see that he does not injure his neighbour (u) . The same principle is applicable to the bringing of water upon a man's own land : he must keep it in at his peril (x), and it is no defence to say that there was no negligence, nor even that there was the greatest care. Tlie only defence which can be raised is that the escape of the water was by the act of God, or vis major iy), or that he was compelled by Act of Parliament to keep the water there, and that what happened was the inevitable result of the performance of his duty under the statute (2;). With respect to water which is not brought by the owner upon the land but comes or exists natur- ally there, he is liable for negligence in the user of it (a). So, also, with respect *to water which a man uses in common with [*44] his neighbours who equally derived benefit from it (b). If he diverts the whole or any part of the water of a stream from its natural course he is responsible absolutely without any allegation of negligence to any one entitled to have the water flow in its natu- ral state (c), unless he is entitled by some grant or prescription to interfere with the natural flow of the stream (d). In no part of this treatise is it more necessary to observe the rule already laid down (e), that negligence only arises where the rights are equal, than in the subject we are now about to consider, viz., the duties of the owners of real property with respect to water and watercourses. Thus, as we have just said, if a man brings water in a dangerous state upon his land, his right to do so is subordinate to his neighbour's right to have his land free from such danger. So, also, the right of a man to take water from his own watercourse, or to add to it in quantity, or injure its quality, is subordinate to his neighbour's right to have the accustomed stream flow down to him. All (t) See the judgment of Blackburn, J., L. R. C C. F. pp. 21, 22. ^ («) Crownhurst v. Amersham Burial Board, L. E. 4 Ex. D. 5 ; 48 L. J. Ex. 109 (horse poisoned by yew trees growing through railings); Firth r. Bowling Iron Co., L. E. 3 C. P. Div. 254 ; 47 L. J. C. P. 358 ; AVilson v. Newberry, L. E. 7 Q. B. 31, distinguished (cow killed by eating portions of wire rope). As between landlord and tenant, see Erskine v. Adeane, L. E. 8 Ch. App. 756 ; 42 L. J. Ch. 835. (x) Fletcher v. Eylands, supra; Smith v. Fletcher, L. E. 7 Ex. 305 ; L. E. 2 App. Cas. 781 ; 41 L. J. Ex. 193 ; 43 L. J. Ex. 70. This is not the law in Amer- ica ; see Losee v. Buchanan, 51 N. Y. 476. (y) Nichols v. Marsland, L. E. 2 Ex. D. 1 ; 46 L. J. Ex. 174. h) Dixon V. Metropolitan Board of Works, 7 Q. B. D. 418. (a) Whitehouse v. Birmingham Canal Co., 27 L. J. Ex. 25 ; Firmstone v. Wheeley, 13 L. J. Ex. 361 (removing a natural barrier of a stream.) (6) Anderson v. Oppenheimer, post, p. 47. (e) "Wood V. Waud, 3 Exch. 748 ; Dickenson d. Grand Junction Canal Co., 7 Exch. 299, and many other cases. Shearman, p 659. (d) Bealey v. Shaw, 6 East 214 ; Acton v. Blundell, 12 M. & W. 353. (e) ante, p. 3. (1653) 30 OWNERS OF REAL PROPERTY. such matters, therefore, are beyond the scope of the present work. It is only where the rights of the parties are equal, and where, if an injury arose there would be no remedy in the absence of negligence, that the question of negligence arises. This may be well illustrated by the case of erecting a dam in a river. If the circumstances con- nected with the river, the adjoining property, and the dam are of such a nature that injury to his neighbour's paramount right is the result of what the owner of the property does, and no care in the doing of it would make any difference, then the owner is doing a [*45J wrong or treaspass for which an action *would lie, irrespective of any allegation of negligence-, but if the circumstances connected with the river, the adjoining property and the dam were such that if care were taken no injury to any paramount right would arise, then no action would lie for injury done unless negligence were proved. The dam in the former case is a dangerous thing which a man erects at his peril, and the right to do so is subordinate to his neighbour's right to hold his lands free from danger; while, in the latter case, it is only the exercise of a right to use his property so as not to injure his neighbour, which is equal to his neighbour's right to enjoy his own property. If, therefore, by some unusual and sudden accident the dam in the latter case causes injury, the owner is not liable for the injury; but if he has been negligent in respect of the dam he is liable for such negligence (/). The case of Harrison v. Great Northern Railway (g) was a some- what singular one, and is very instructive. The defendants had undertaken to maintain a cut. The banks were not sufficient to resist the pressure of the water which they could contain. The cut ran into the river Witham, and the \\'itham Commissioners neglected to cleanse the river, by reason of which neglect the cut became full of water and burst its banks. The cut would not have burst except for the wrongful conduct of the commissioners. There was no sudden storm or sudden wrongful act done by the commissioners, but the stopping up had been of frequent occurrence. It was held, not that having brought the water there the defendants were bound [*46] to restrain *it, which it was said was unnecessary to be de- cided in that case, but that the bank was defective by reason of the negligence of the defendants, and that the defective bank was the proximate cause of the injury, notwithstanding the obligation upon the commissioners to cleanse the outlet. Another interesting case is that of Fletcher v. Smith (h). There the owner of property had for his own convenience diverted a ( f ) The law is well illustrated by the following cases : Bagnall v. L. & N. W. Ey. Co., 7 H. & N. 423, aff. 1 H. & C. 544 (company cut into soil over mine, and huilt bridge over stream, and neglected to repair drains — held liable for negligence); Blyth v. Birmingham Waterworks Co., 11 Exch. 781 (company not liable for bursting of pipes in extremely cold winter) ; Harrison v. Great Northern Ey., 3 H. & C. 231 (bursting of bank of drain). {g) Supra. {h) Fletcher v. Smith, L. E. 2 App. Cas. 781 ; 43 L. J. Ex. 70. (1654) WATER — LANDLORD AND TENANT. 31 stream, making a new channel, but negligently making such channel insufficient The water had flowed down from the defendant's to the plaintiff's mine through cracks, caused by the ordinary working of the defendant's mine, and if the ordinary watercourse had, in consequence of such ordinary working, run through the cracks, it appears from the judgment (citing Wilson v. Waddell, 2 App. Cas. 95) that the defendant would not have been liable, that is to say, he would have been exercising a paramount right of property ; but when he chose to alter the watercourse he was exercising no such paramount right, but a right which was no greater than the plain- tiff's right to have his own land free from any unusual flow of water caused by the defendant's acts. -^ The owner or landlord of a house is generally responsible for the^ original construction, &c., of the pipes, cisterns, &c., unless some agreement has been made to the contrary, and the tenant is only responsible for the way in which he uses them (i). Where the tenant of an upper floor does not know of the defective state of his receptacle for water, and there is no negligence in his mode of deal- ing with it, and it overflows and injures the room of the tenant below, the doctrine of Fletcher v. Ry lands, ante, p. 41, does not ap- ply (fc), and he is not obliged to keep his pipes from overflowing in any event, but is only liable for negligence. *Probably [*47J the tenant of the upper floor would be liable in an action for negli- gence if he had notice of the dangerous state ot the pipes and did not remedy the defect, although he did no other act of negligence. Where a landlord demised a house in flats with a common water supply by branch pipes he was held by Field, J., not liable for dam- age caused by the bursting of the pipes m the absence of negli- gence in fixing the pipes and maintaining them. If there had been such negligence it seems it might have beea a breach of the cove- nant for quiet enjoyment (I). This was affirmed in the Court of Appeal because the covenent was prospective, and during the de mifo nothing had been done to interrupt the quiet enjoyment. It was also held that the water supply being for the common benefit the plamti ff had no cause of action founded upon Fletch er v. Rylands ( m ) . A landlord is liable for his own negligent misfeasance in the con- struction or upholding of his property (w), but not for the negli- gence of his tenant. Thus, the landlord is liable for the conse quences of a nuisance (as an obstruction of ancient lights), even after he has leased the premises (o) ; and he is liable for defects (!) See Shearman, ss. 512 — 514. (k) Ross V. FeddoTi, 41 L. .1. Q. B. 270 ; L. R. 7 Q. B. G61. (Z) Anderson v. Oppenheimer, 49 L. J. Q. B. 456. (m) 49 L. J. C. A. 708; 5 Q. B. D. 602. (n) Nelson v. Liverpool Brewery Co., L. R. 2 C. P. D. 311; 46 L. J. C. P. 675. (o) Easewell v. Prior, 2 Salk. 460; Rex v. Padley, 1 A. & E. 8 >T; Gandy v. Jubber, 5 B. & S. 78, 485; Leslie v. Pounds, 4 Taunt. 649. See Bartlett v. Ba- ker, 3 H. & C. 153 (piles put in river by defendant, sold to another, who cut them off and did not remove them. Defendant not liable). (1655) 32 OWNERS OF REAL PROPERTY. which existed before he parted with the property (p). It seems, however, that if the owner had no means of knowing, and in fact did not know of the defect, and the tenant has covenanted to re- 's^air, the owner is no longer liable {q). [*48J *If the owner has covenanted to do the repairs, then he is, of course, responsible for them as far as the tenant is concerned, and is also liable to third parties (r); but if the tenant by his own negligent conduct makes the property injurious to others he cannot shelter himself under a covenant by the landlord to repair the mis- chief (s). A landlord, however, is not liable to the guests of his tenant, even for injuries caused by defects existing before the creation of the lease (t); unless, indeed, he knows that strangers will be invited, and that the premises are unsuitable for such invitation of stran- gers (m). In the absence of a covenant in the lease a landlord is not an- swerable for injuries to the cattle of third parties arising from his tenant's neglect to repair fences (x). Nor is he, at common law, under any obligation to fence as between himself and his tenants We naturally come at this place to consider what is the obliga- tion upon owners of real property with respect to fencing in cattle. An owner of cattle is bound, as we shall see, to exercise a reason- able control, or ordinary care, over his tame animals, and no doubt one mode of doing that is by the erection of fences, but care may, of course, be taken in many other modes, as by tethering, watching, [*49] or *keeping in outhouses: and this subject will be found treated of in the next section, tit. " Animals " (z). It is true that owners and occupiers of land are under no duty at common law to fence out cattle (a), but persons who keep cattle must see that they do not trespass upon th^ land of others (b). Again, owners or oc- (ji) Alston J'. Grant, 3 El. & B. 128; Cheethani v. Hampson, 4 T. E. 318. (}) Gwlnnell v. Earner, L. K. 10 C. P. 658, following Pretty v. Bickmore, L. E. 8 C. P. 401. The contrary seems to have been held in America, Taylor v. New York, 4 E. D. Smith, 559. (r) Payne v. Rogers, 2 H. Bl. 350; Tood v. Flight, 9 C. B. N. S. 377; Nelson V. Liverpool Brewery Co., L. E. 2 C. P. D. 311; 46 L. J. C. P. G".'). Where a tenant left his hrea open to the street it was held no defence that it had always Iieen so, time out of mind: Coupland v. Hardingham, 3 Camp. 3'Jf*. See Proc- tor V. Harris, 4 C. & P., 337; Daniels v. Potter, ib. 26 (cellar flaps); Hadley v. Taylor, 14 W. E. 59; 13 L. T. N. S. 368. (.s) Piekard r. Smith, 10 C. B. N. S. 470. (() Eobins v. Jones, 15 C. B. N. S. 221; Eyan v. "Wilson, 41 Amer. Eep. 384. (u) Godley v. Hagerty, 20 Penn. St. 387; Stratton v. Staple, 59 Maine, 94; Edwards v. New York Ey. Co. , 20 Hun. N. Y. 634. (.r) Cheethamw. Hampson, 4 T. E. 318; Payne v. Eogers, 2 H. Bl. 350. (y) Erskine v. Adeane, L. E. 8 Ch. 756; 43 L. J. Ch. 835. [z] See post, s. 3, Animals. (a) 1 Wms. Saunders, 559, note (b), ed. 1871; "Wells v. Howell, 19 Jolms, 385. In America different rules prevail in different states upon this point, see Shearman, Ch, XIX. (6) Boyle v. Tamlyn, 6 B. & C. 337. (1656) FENCES — LANDLORD AND TENANT, 33 cupiers may be bound by prescription, or usage, or covenant, to fence (c), and then their obligation is absolute, and the question of negligence does not arise (d). Even in this ease it must be remem- bered that it is only the adjoining owner who can complain of the non -repair of the fences, and a third person injured by such breach of the obligation cannot bring an action for such breach (e). It has been Wv?ll pointed out the injury done to an animal straying is generally caused not immediately by the fence, but by something in the field, and that there must be some negligence in respect of that which is inthefield before thedefendant can be made liable, otherwise the damage would be too remote .(/)• If the danger in the field is one which could have been reasonably foreseen, the defendant will be liable for negligence (gr). The sufficiency of the fence is, of course, a question for the jury. It should be of sufficient height and strength to keep out animals such as are ordinarily kept in fields (h). It should be remembered that we are not here dealing with *question3 of trespass. A man is bound to restrain his ani- [*50] mals from trespassing, and is liable in trespass for the injuries which they do, whether his fences are carefully or negligently kept Railway companies are frequently bound by their Acts to keep up fences for the protection of the owners of cattle, not for protection of passengers by train (fc). In America it seems this protection is usually extended to all owners, whether their land is contiguous to the line or not ( T) ; but in England the protection is confined to ad- joining owners or occupiers (m). A railway company agreed with one G. to fence his land from the railway, he releasing them from tbeir statutory obligation in that respect. They made a sufficient fence, but neglected to keep it up, and a cow belonging to G.'s tenant fell into the ditch and was killed. It was held that the agreement did not exonerate them from their liability tmder the Railways (c) Firth II. Bowling Iroa Co., finte, p. 43 (cows eating iron fencing); Law- rancer. Jenkins, L. K. 8 Q. B. 274; 43 L. J. Q. B. 147 (cows eating yew tree). (d) Boyle v. Tamlyn, supra; Barber r. Whitely, 34 L. J. Q. B. 212; Law- rance v. Jenkins, supra. (e) Cheetham v. Hampson. supra; Shearmon, s. 322. (/) Shearman, s. 324. (g) Powell V. Salisbnxy, 2 Y. & J. 391 ; see judgment of Byles, J., in Lee v. Riley, 34 L. J C. P. 212, 216 (hor.se straying) ; Firth v. Bowling Iron Co., ante, p, 43 (cows eating iron fencing). (70 Bessantv. G. W. Ey. Co., 8 C. B. N. S. 368; Chicago Ry. C >. ■!'. Utley, 38 111. 410. (i) Whether this extends ti trespasses by smaller animals, such as dogs, cats, fowls, &c., seems doubtful. See Reed«. Edwards, 17 C. B. N. S. 245. (it) Buxton V. N. E. Ey. Co., L. R. 3 Q. B. 549; 37 L. J. Q. B. 258; Wise- man V. Booker, 3 C. P. D. 184. (Z) Shearman, s. 469. (m) Rickets v. East India Docks Ey. Co., 12 C. B. 100; DawsM v. Midland Ry. Co^I.. R. 8 Exch. 8; Marfell v. 8. W. Ry. Co., 29 L. J. C. P. 315, 317. See Er%ay3 Clauses Act, 1845, s. 68. p LAW OF NEG. (1657) 34 OWNERS OF WHARVES. Clausea Act, 8 & 9 Vict. c. 20, s. 68, to maintain the fence and ditch for the benefit of the occupier (n). They are also frequently bound by their Acts to fence off, by gates or otherwise, a highway crossing the line upon a level, and they become liable for negligently omitting to keep such gates closed where cattle are straying upon such highways or are lawfully travelling along it (o). But, where a highway runs parallel with and adjoining to the railway, the owners of cattle coming out of [*51] fields *beyond the highway are not owners or occupiers of adjoining lands, but the highway is the adjoining land and the railway company is not liable (p). Where cattle are by permission of the railway company upon ' land of their own adjoining the railway, the company are not liable for injuries done to such cattle upon their line, as the statute only applies to adjoining owners (q), but the company are liable if they have been negligent in omitting the performance of other duties apart from their statutory duty (r). Where the fences, &c , are properly kept by the company they have fulfilled their statutory duty; but it remains that they should exercise ordinary care with respect to cattle straying upon the line, and if the company know or ought to know that cattle are upon the ]ine(s), and do not take care to have them removed, they are liable in an action of negligence in the same manner as any other person would bo who neglected so obvious a duty. [*52] * Section II. — Sub-section I. Neglect of Duties by Wharf and Dock Owners. Owners and occupiers of wharves and docks are bound to use care that their wharves and docks are fit not only for the use of vessels, and for the persons impliedly invited to enter the docks, but also for those persons whose business leads them to frequent the docks(i), (n) Coriy v. G. "W. Ey. Co., 6 Q. B..D. 237; 7 Q. B. D. 322. - (o) Fawcett 1). North Midland Ry. Co., 16 Q. B. 610. As to level crossings, see the Railways Clauses Act, 1883"(26 & 27 Vict. c. 92), ss. 5, 6. 7. (p) Manch., Sheff. & Line. Ry. v. Wallis, 14 C. B. 213. If the cattle were lawfully passing along the highway, it seems the owner would he an occupier of the highway, and the company would be liable, see 14 C. B. 224, supra; and see Midland Ry. Co. v. Dakin, 17 C. B. 126. {}) Marfell v. S. Wales Ey. Co., 29 L. J. C. P. 315. (r) Marfell v. S. Wales Ey. Co., supra (the plaintiff had paid toll for the use of a tramway ad.ioining the railway — held, the company ought to take rear sonable care his horses were not injured). (s) Shearman, s. 472; Marfell v. S. Wales Ey. Co., supra. (t) Manley v. St. Helen's Canal Co., 2 H. & N. 840. (1658) ANIMALS. 35 and it is immaterial whether they pay for the wharfage or not (u). The wharf-owner is not an insurer of the safety of the vessels using the dock or wharf (x), but he seems to be bound to take something more than ordinary care of vessels or persons coming upon his property under an express or implied invitation (y). Moreover it is usually the case that the dock or wharf owner exer- cises his rights under the powers of an Act of Parliament, and there- fore nbt only is he bound to exercise more care because the vessel or person has come to him upon invitation, but also because he is performing a statutory duty laid upon him in consideration of bene- fits conferred by the statute. This subject is therefore more fully treated of in Ch. Ill, s. 4 *Sectiok III. [*53] Neglect of Duties by Owners of Animals. Persons having the control of animals, whether ovmers or not, are in general liable for injuries occasioned by a want of ordinary care in controlling such animals (z). In the case of " savage " animals, such as lions, tigers, &c., a man must keep them from d6- ing harm at all events, and no amount of care will relieve him from liability in respect of injuries caused by them. Probably one ground of this is that he must be supposed to know the extreme danger he is incurring in keeping such animals, and to take all the risk, as in the case of dangerous things, such as fire or water, re- ferred to ante, p. 41. In May v. Burdett (a) it is said that the gist of the action is the keeping of the animal (a monkey) after knowledge of its mischievous propensities. In an American case, where an elephant by its mere appearance frightened a horse, it was held that the owner was not liable (6). The question of knowledge by the owner of the mischievous pro- pensities of a particular animal kept by him does not enter into a work on the law of negligence ; for, if knowledge is shown, it is no (u) "White V. Phillips, 15 C. B. N. S. 245 (camp-shed by side of wharf negli- gently left out of repair). {x\ Exchange Fire Ins. Co. v. Delaware, &c., Canal Co., 10 Bosw. 180. \y) Smith v. London Docks, L. E. C. P. 326 (ship's oflftcer invited plaintiff; defendant provided gangway, which was insecure); White v. France, L. R. 2 C. P. D. 308; 46 L. J. C. P. 823 (defendant's servant told plaintiff to go to de- fendant's wharf to complain of defendant's boat; bale of goods fell on plaintiff), see post, Ch. Ill, s. 4. (z) Tenant v. Goldwin, 6 Mod. 314 ; Boyle v. Tamlyn, G B. & C. 337 ; Shear- man, s. 185 ; Wharton, Ch. VII., ss. 100, 904 et seq. (a) May v. Burdett, 9 Q. B. 101. (b) Scribner v. Kelly, 38 Barb. 14. (1659) 3<3 OWNERS OF ANIMALS. defence to show that every care was taken. When once knowledge is shown, the owner of the animal is subject to the rule with respect to savage animals, and keeps such an animal at his peril. Neither is it within the scope of the present work to deal with questions of trespass. It is sufficient to observe here that a man is liable to an action for trespass if he does not prevent his animals from trespass ; and it is no answer to such an action that he took [*54] the best possible *care to prevent the trespass (c). Where a man has placed his cattle in a field, it is his duty to keep them from trespassing on the land of his neighbours ; but while he is driving them upon a highway, ho is not responsible (without proof of negli- gence) for any injury they may do upon the highway, or to unfenced property adjoining the highway (d). How far he is liable for a trespass by smaller animals, such as dogs, cats, fowls, &c., seems to be very doubtful (e). It should seem that ho would be liable for the trespass if there were really any damage done (/), and if not liable in an action for trespass, at all events he would be liable in an action for negligence if, knowing that the animals were in the habit of committing damage, he took no care to prevent them, and they had really done substantial injury. So far as the trespass is occasioned by negligently omitting to repair or keep up fences, the subject will be found discussed in the section on the duties of owners of property (g). Sometimes where there has been in fact a trespass, yet the thing complained of is the neglect of control over the animal, and this of course is within the scope of the present work and the present section. Where the injury done is the natural consequence of the negli- gent control the owner is liable, without any proof of scienter; for persons must be taken to know the nature and habits of animals which they undertake to control (h), and ought to exercise such [*55] ordinary care as is proper for their *control. But where the damage is such as it is not the nature of the animal ordinarily to commit, it lies upon the party damaged to show that the owner knew the particular animal was capable of the act complained of, and when he has shown that he need not prove negligence (i). It is said that a person driving cattle through a street is bound to take the utmost care to avoid doing any injury to the public (k). (c) Ante, p. 50. (d) See per Stephen, J., in Tillett v. Ward, 10 Q. B. D. 17. (e) See Eeed v. Edwards, 17 C. B. N. S. 245 ; 34 L. J. C. P. 31. (/) See "Add. on Torts," pp. 110, 268, 301, 5th ed., by L. W. Cave, Q. C. See as to the necessity of appreciable damage. Smith r. Thackerah, 35 L. J. C. P. 276 ; L. E. 1 C. P. 564, or more accurately perhaps, '' appreciable injury to a right," see 1 Sm. L. C, 8th ed., p. 308 ; and see remarks of Taunton, J. in Marzetti v. Williams, 1 B. & Ad. 426. (g) Ante, Ch. II, p. 48. (h) E. g., cows or sheep eating crops. See Shearman, S3. 18S, 190. (i) Cook V. Waring, 2 H. & C. 332 (scabby sheep) ; Res.d v. Edwardes, 17 C. B. N. S. 260 ; 34 L. J. C. P. 31 fdog accustomed to hunt game). (Jc) Ficken v. Jones, 28 Cal\ 618. See Tillett v. Ward, 10 Q. B. T). 17. (]660) TAME ANIMALS. 37 It seems that surrounding circumstances being fraught with more danger, more care must be used. There is a danger both from the nature of the animals and from the crowded street (Z). But these cases are not those of "savage" anipials, but only of quasi savage animals, which we shall speak of presently. The mere keeping of infectious animals, even where the animals belonging to another person are thereby endangered, is not, it seems, a negligent act of itself (m), but it may be so (w). The question how far the owner of an animal not known to be vicious, and which cannot naturally be presumed to be so, but which escapes from control and injures another, is , liable for such injury, is not by any means free from difBculty. The difficulties, however, mainly arise upon the question of contributory negligence, and this subject will be more conveniently dealt with in a separate chapter : see Chapter V. If the animal is properly xmder his control, and he is exercising ordinary care, but, nevertheless, the animal does an injury, the owner is not liable (o); but *if he negligently [*56] omits to exercise ordinary care to control it, he is liable for such in- jury as is the proximate result of such negligence (p). As to cattle straying upon railroads, see Ch. II, ante, p. 50. In the case of dogs the law seems to have dealt somewhat ten- derly with their owners, and to have held that they are not liable unless knowledge of the vice of the particular dog is brought home to them. And, indeed, in several cases at Nisi Prius it seems to have been allowed that a man may keep a dog which he knows to be savage for the purpose of defending his house, and is not liable for any injury such dog may do, provided he does not keep him negligently (g). The law on this point being found to be very unsatisfactory, es- pecially in regard to the protection of sheep and cattle (r), the 28 & 29 Vict. c. 60 (s) was passed rendering proof of the scienter unneces sary where dogs have injured such animals, and the owner of a dog doing such injury is not made liable by the statute, without any proof of negligence. It ia submitted that in all cases the owner of dogs, and of other animals not ordinarily savage, should be liable for neglegence and (I) As to this see post, Ch. Ill, s. X (m.) Shearman, s. 193. See Contagions Diseases (Animals) Act, 41 & 42 Vict, c. 74. (n) See Cook v. Waring, supra. (o) Shearman, 194, Holmes v. Mather, L. R. 10 Ex. 261 (horses running away, frightened by bark of dog). (p) See Ch. I, p. 15 ; and see post, Ch. Y, Contributory Negligence. (g) Brook r. Copeland, 1 Esp. 302 ; Sarch v. Blackburn, 4 C. & P. 300 ; Curtis V. Mills, 5 C. & P. 489. ()•) This has been held ti apply to horses, Wright v. Pearson, L. E. 4 Q. B. 582 ; 38 L. J. Q B. 312, and was ruled by Meller, J. , to apply to horses in harness. Ed. And the word " cattle, " in another Act, has been held to apply to pigs, Childs v. Heam, 43 L. J. Ex. 109. (s) 26 & 27 Vict. c. 100 is a similar Act for Scotland. (1661) 38 OWNERS OF ANIMALS. for that alone, such negligence depending upon the whole circum- stances of the case, and amongst others of knowledge of vice by the owner. As the law is at present, persons escape liability from the difficulty of proof .oi scienter, and, on the other hand, it is hard that [*57] *the greatest amount of care will not excuse after knowledge is proved, or in cases under the statute without knowledge being proved. The Scotch Act, 26 & 27 Vict. c. 100, did not contain the words "or that the injury was attributable to neglect on the part of such owner ;" so that in Scotland negligence must still be proved though the scienter need not. With regard, however, to some animals, which, although not " savage" nor yet " domestic," are apt frequently at certain times and places to be dangerous, we think that they most be classed in the same category with dangerous goods, and that something more than ordinary care must be exercised with respect to them {t). " Where two or more animals belonging to different persons unite in committing an injury, the owners cannot at common law be made jointly liable for the acts of all the animals thus acting together, but each owner is separately liable for so much only of the damage as was done by his animal" (u). Sectiok IV. Neglect of Duties by Owners or Controllers of Highways. The reader of the present treatise must be referred to works specially written to illustrate the general law of highways for defini- tions of " highway," and of " nuisances" and " non-repair," and for the various modes of enforcing the right of user by the public. It is not proposed in the present treatise to illustrate the various liabilities which the statute law has cast upon different towns or [*58] corporations with respect to their streets *and highways {x). Each town has its own statutes and bye-laws, and, as in the case of particular contracts, the question is generally one of construction. Nor is it intended to discuss the powers and liabilities of public authorities with respect to the streets or highways placed under their control by the Public Health Act of 1875, or by the Highway Acts. Such a discussion would lead us too far a-field ; and the reader who desires more particular information upon these points must seek for it in books more especially devoted to those topics. All that can be done in the present treatise is to point out the gen- eral principles of the law applicable to the subject. {I) See post, Ch. Ill, s. 3. («) Shearman, s. 198. The jury may adopt any reasonable method of assess- ing the damages. (x) The general rule as regards corporations will be found post, Cli. Ill, s. 7, title ' ' Corporations. ' ' (1662) OBSTRUCTIONS OF HIGUWAYS. ' 39 "With respect to the law of nuisance, as has been already Btated(2/), it mvisfc be remembered that a private action arises only where the act which is a nuisance to the public has caused a special and par- ticular damage to the party himself (z) ; and~f urther, that in order to found an action for negligence there must, as we have seen (a), be a duty which has been neglected (6) and an equality of rights (c). No action could be maintained at common law for an injury arising from the non-repair of a highway (d). But a duty may be cast upon a corporation to repair the highway, and, if that is clearly done, they will be answerable in an action for negligence (e); but the whole question in *suoh cases depends upon whether the [*59] particular section of the Act relied upon by the party injured does or does not impose a duty to repair, and this is a matter of con- struction. This duty, if imposed upon a corporation, will probably extend itself not merely to the absolufie repair of the road, but to the pro- tecting of persons from dangers, which are as it were attached to the ordinary user of the highway, and into which people would naturally run if they were not protected from such dangers (/). It must be borne in mind that corporations executing statutory powers are bound to use more than ordinary care (g). Where there is an unauthorised interference or obstruction to a highway, an action would lie for special injiiry thereby (fe); but this would not be an action for negligence. So, also, where there is an unreasonable user of a highway, that is an interference or obstruction, and the rights are not equal, for the party has no right whatever to such user; but if the user is in itself, if care is taken, reasonable, the rights of the parties are equal, i. e., each has a right to the reasonable user of the highway, and their only liability arises when they omit to take care. Thus, in cases of unloading waggons by the side of the highway, the right to do so is subor- (y) See Ch. II, s. 2, Real Property. (z) Duncan v. Thwaites, 3 B. & C. 556; Iveson v. Moore, 1 Ld. Eaym. 486; Winterbottom v. Lord Derby, L. E. 2 Ex. 316. (a) Ante, p. 1. (bj Collis V. Selden, L. E. 3 C. P. 495. (cj See ante, p. 3. (rf) The reason for this has been variously stated. Gibbs v. Mersey Docks, per Blackburn, J.; L. E. 1 H. L. p. Ill; 35 L. J. Ex. 225; Young v. Davis, 7 H. & N. 760; 2 H. & C. 197; Parsons v. St. Matthew, Bethnal Green, L. E. 3 C. P. 56; 37 L. J. C. P. 62; Gibson v. Preston (Mayor of), L. E. 5 Q. B. 222; 39 L. J. Q. B. 131. (e) Hartnell v. Eyde Commissioners, 4 B. & S. 361; 33 L. J. Q. B. 39. See Gibson v. Preston, supra. (/) Blackmore v. Vestry of Mile End Old Town, 9 Q. B. D. 451 ; Shearman,' s. 389 et seq. The American cases are very numerous upon this subject; and it should be remarked that where the dangers are greater there is the greater duty to take care. (ff) Ch. Ill, s. 7, Corporations. (h) Harris v. Mobbs, L. E. 3 Ex. D. 262 (horse shied at van by side of high- way); Wilkins v. Day, 12 Q. B. D. 110 (horse shied at roller). (1663) 40 CONTROLLERS OP HIGHWAYS. din ate to the right of passage along the highway by the public, and. if the right of passage is substantially interfered with it is a nuis- ance, and the question of negligence does not arise («'). So, also, where there is a power or license given to interfere with [*60] a highway, that power or license must be strictly *pur8ued, and if not, the interference being a different thing to that which is permitted or ordered, is a public nuisance (k), and the question of negligence does not arise. But frequently, in the very act of doing repairs or other necessary work in or near the highway, the highway has to be obstructed and the public put in some danger. It then becomes the duty of the person so lawfully interfering with the highway to see that ordinary and reasonable care is taken in the mode of interference, .and to maintain them as long as they are required (Z). So if persons have by A-ct of Parliament a right to take up the pavement, they miust be careful lest in relaying stones they are left so as to admit of a pru- dent and careful person supposing them to be safe when they are not (m). And where a power or license is given to interfere with a high- way it is an implied condition, that at least ordinary care shall be taken (n); and where privileges are bestowed upon corporations with such powers, something more than ordinary care is, as we shall see, demanded. Where the plan or mode of executing the work is not pointed out by the statute, that plan is to be adopted which is best calculated to subserve the object of the work, and care must be taken in its adoption (o). How far corporations as distinguished from individuals are pro- [*61] tected by showing that they have carefully selected *the per sons best competent to give them a plan, or are like individuals bound to see to the execution of it, see Ch. Ill, s. 7, post, Corpor- ations. So, also, a corporation is liable for the negligence of another per- son whom it has authorised to do work upon a highway for his own benefit, but over which the corporation ought to exercise control (p), as in the case of a private occupier authorised to interfere with the drains communicating with the main sewers (q). (i) Rex !'. Eussell. 6 East, 427; Eex )i. Cross, 3 Camp. 2261 (k) See Shearman, 364. See Reg. v. United Telegraph Co., 9 Cox C. C. 174, 3 F. & F. 73; and Attorney-General v. Ely, &c. Ry. Co., L. R. 6 Eq. 106; 4 Ch. 194. 38 L. J. Ch. 258, Shearman, 372; Buxton v. N. E. Ey. Co., L. R. 3 Q. B. 549; 37 L. J. Q. B. 298. (l) See Shearman, ss. 358, 376. (»«) Drew V. New River Co., 6 C. & P. 754. (m) Brine v. Great Western Ry. Co., 2 B. & S. 402; Jones v. Bird, 5 B. & Aid. 837 ; Whitehouse v. Fellowes, 10 C. B. N. S. 765 ; Brownlow v. Met. Board, 18 C. B. N. S. 546. This comes within the law relating to corporations acting under statutory powers, Ch. Ill, s. 7. (o) Shearman, ss. 372, 373. (p) Shearman, s. 400. (g) See cases cited by Shearman, s. 400. As to notice of defect to corpora- tion, see Ch. Ill, s. 7, Corporations. (1664) OBSTKUCTIONS TO HIGHWAYS. 41 Every one who lawfully interferes with a public highway so as to render it dangerous is bound to guard against such danger, and if he does not he is liable to an action for negligence (r). And it can scarcely be doubted that where a person unlawfully places upon a highway an inbtrument or thing which is dangerous to passers-by, he is bound to take all necessary precaution, and is answerable for the consequences of not doing so in an action of tort; and even if he do so lawfully he is bound to take care, and is liable to an action of negligence if he omits to do so (s). The owner of land adjoining a highway is bound as we have seen not to interfere with the safety of persons using the highway (t); and in repairing or erecting premises where it is lawful to encroach during the progress of the work, such encroachment must be made with ordinary care, and any danger guarded against (m). 'Corporations or persons undertaking to manage highways [*62] are not insurers against latent defects, they are only bound to take care (x), and as far as their statutory duties are concerned, some- thing more than ordinary care (y). The omission of suitable railings or walls to a bridge is a negli- gent actj and cannot be excused by showing that such barriers might increase the liability of the bridge to destruction by floods (z). Eailway bridges over highways should be kept in proper repair, and the companies, whose duty it is, at common law, to repair them, are bound to use due care in the inspection of the bridges, and in the repair of them, so as not to cause injury to persons passing along the highway (a). Drawbridges should be properly constructed, and be furnished with proper machinery for raising the same upon the passing of vessels, and should be protected by proper barriers, or lights, or other warnings for the advantage of passengers across the bridge, and for negligence in this respect the proprietors will be liable (6) ; probably for something less than ordinary negligence. So long as they keep the bridge open and take tolls, so long are they liable for negligence, even although they give notice to travellers of the inse- curity of the bridge (c). (r) Whiteley D. Pepper, 2 Q. B. D. 276; 46 L. J. Q. B. 436; and if there are two modes of doing work on the highway to choose the least dangerous: Cleve- land V. Spier, 16 C. B. N. S. 399. {.■*) Clark V. Chambers, 47 L. J. 427; 3 Q. B. D. 327 (barrier with spikes); Harris v. Mobbs, 3 Ex. Div. 268 (van and engine by side of road frightened horse in trap). (1) See s. 2, ante, Real Property, p. 30. (u) Shearman, s. 366. (x) Shearman, s. 398. (j/) See post, Ch. III. s. 7, Corporations performing Statutory Duties. (z) Shearman, s. 253. (a) Kearney v. L. B. & S. C. Ry., L. R. 6 Q. B. 759; 40 L. J. Q. B. 285 (stone fell from bridge on passer-by). See Grote v. Chester, &c., Ry. Co., 2 Exch. 251 ; South & North Alabama. Ry. Co. v. McLenden, 63 Ala. 266. (6) Shearman, s. 250. (c) Shearman, s. 250. (1665) 42 CONTROLLERS OF HIGHWAYS. It is said that the destruction of a bridge by an extraordinary flood raises no presumption of negligence, but where it is subject to floods it must be so constructed as to resist them (d). Corporations or private persons who take tolls under Acts of [*63] Parliament for the use of canals are bound, as we think, *to exercise something more than ordinary care in the management of such property (e). But they are not insurers, and are not liable for injuries arising from circumstances of which they had no knowl- edge (/). So, also, a canal company must see that its canal, docks, locks, wharves a'nd bridges are properly constractedand managed (g). As to injuries to adjoining lands by reason of overflow or burst- ing of banks, the proprietors are, at the least, liable for negli- gence (h). The owners of a canal placed planks in it so as to heighten the bank in order to prevent flood water from a river overflowing their premises, and the water being penned back flooded the plaintiff's premises ; it was held that the owners were not liable. The water was not brought there by them, and there was no duty not to im- pede the flow, as in the case of a natural watercourse (i). A canal towing path is a public highway only for the purposes of a towing path and not for the general public (j) ; and a canal company is not bound to fence or repair it as against the general public, and an action of negligence will not lie for their neglect to fence or repair (fc). [*64] *Section V. Neglect of Duties by Corporations (not performing Statutory Duties). The duties of corporations are in general prescribed to them by the charter or statute of incorporation, and the performance of those duties which are imperative upon them by reason of such charter (d) Shearman, s. 250, note 3. (e) Lancaster Canal Co. v. Parnaby, 11 Ad. & El. 223 (boat sunk in canal; de- fendants had notice of obstruction). See Corporation, post, Ch., Ill, s. 7. (/) Exchange Fire Ins. Co. v. Delaware Canal Co., 10 Bosw. 180. Iff) Attorney-General v. Bradford Navigation Co., 35 L. J. Ch. 619 (this was a case of nuisance) ; Gautret v. Egerton, L. R. 3 C. P. 371 ; Manley v St Helen's Canal Co., 2 H. & N. 840; 27 L. J. Ex. 164 (swing bridges). (A) Whitehouse v. Birmingham Canal, 27 L. J. Ex. 25. If indeed they are not bound to keep it at their peril : see ante, p. 43. (i) Nield v. L. & N. W. Ry. Co., L. E. 10 Ex. 4. U) R. 0. Severn Ey. Co., 2 B. & Aid. 646. (k) Binks v. S. Y. Ry. Co., 3 B. & S. 244; 32 L. J. Q. B. 26. (1666) CORPORATIONS. 43 or statute are such as require more than ordinary care, and will be found fully discussed in Ch. Ill, s. 7, post. Those duties also which devolve upon them by reason of their having invited persons upon their premises, or taken tolls from them for the use of their property, require something more than ordinary care in their per- formance, and will be found in the same portion of this treatise. It may be here shortly stated that corporations sometimes under- take duties which they are not bound to perform by reason of any statute or charter, but which are either merely indicated for the ex- ercise of their discretion, or are undertaken by them in a purely voluntary manner. With respect to these duties they are not bound to undertake them {I), and if they do so they are only bound to exercise ordinary care (m). Like other persons corporations are liable for the negligent use of their property, even where no statutory duty is broken (n). *It seems that a corporation is not answerable for the want [*65] of adequate administrative ordinances, nor for the manner in which its ordinances are carried out (o). "Where there is no specific duty imposed by law upon the cor- poration it is not sufficient that it has not done something which would, if done, have prevented injury, but it must be shown either that it has directly by negligence caused the injury or permitted it with notice {p), or permitted another to cause it (g). In fact, as has been before said, a duty must be shown and a breach of the duty (r). The act which is being done, and of which negligence is alleged against the corporation, must be one which is within the powers or duties of the corporation, and must not be ultra vires (s). If it is ultra vires it is a vwong of a different nature to those treated of in this work ; there being no right at all to do the act, even if done with great care, the rights of the parties are not equal, and no question of negligence arises. A corporation, like a private person, can be affected with knowl- edge of the d.angerous or defective state of things under their con- trol {t). (I) Wilson V. Preston (Mayor of), L. E. 5 Q. B. 218. (to) Where turnpike trustees altered an open ditch into a closed one and made insufficient gratings, so that the rain washed over the road and injured a mine, it was held they were liable in an action of negligence for such injury : Whitehouse v. FelloWes, 30 L. J. C. P. 30.5 ; 10 C. B. N. S. 765. (n) See " Wharton on Negligence," s. 251. (o) Shearman, s. 153. {p) Shearman, ss. 147, 148. (q) Shearman, s. 147. (r) Ante, p. 1. (8) Poulton V. L. & S. W. Ey. Co., L. E. 2 Q. B. 534 ; 36 L. J. Q. B. 294; see "Brice on Ultra Vires," p. 246. (i) Penhallow v. Mersey Docks. 30 L. J. Ex. 329, Ex. Ch. per Blackburn, J. ; see S. C. on appeal, L. E. 1 H. L. 93 ; 35 L. J. Ex. 225 ; Stiles v. Cardiff Steam Nav. Co., 33 L. J. Q. B. 310. (1667) 44 DUTIES OF MASTERS. [*66] *Section VI. Neglect of Duties by Master. (1) Breach of Duty to Servants. (2) Breach of Duty to Others. (3) Employers^ Liability Act. It need scarcely be said that whether the neglect of dnty is that of a master towards a servant, or towards others through his ser- vants, or of servants towards others in the same employment, it is important to consider whether the parties really occupy the rela- tions of master and servant or some other relations, such as ihose of employer and contractor, bailor and bailee, &c. (m). A principal is responsible for the acts of his agent done within the scope of his authority upon the general principle Qui facit per aliuni facit per se. As soon as it is shown that the person doing the act complained of was an agent, and was doing the act in pursuance of the author- ity of another, that other may be sued for the damages occasioned by the negligent act of the agent. The servant is an agent of his master, who is his principal ; and the difference between the rela- tion of master and servant and that of ordinary principal and agent is as to the extent of the authority and the nature of the employ- ment. • [*67] *Section VI. — Sub-section I. (1.) Breach of Duty to Servants. To make a master liable for negligence towards his servant there must (in the absence of any special contract or enactment making the master liable) by either personal negligence upon his part (x), or negligence by his representative {y) or colleague ot partner (z), (w) See Fowler K. Lock, 41 L. J. C. P. 99; L. R. 7 C. P. 272 (bailor and bailee); Venables v. Smith, 46 L. J. Q. B. 470 ; L. R. 2 Q. B. D. 279 (proprietor and driver of conveyance — master and servant) ; King v. Spurr, 8 Q. B. D. 104 (proprietor of cab and driver — bailor and bailee) ; and see cases collected in "Macdonnell on Master and Servant," p. 165; Steel r. Dester, 47 L. J. 43 (ship-owner and captain, former retaining share — master and servant) ; Frazer V. Marsh, 13 East, 238 (not retaining share ; demise of ship- — not master and servant). See also post, pp. 78, 83, 84, 8.5. (x) Ormond v. Holland, E. B. & E. 102 ; Brydon v. Stewart, 2 Macq. H. L. 30 ; Roberts !'. Smith, 2 H. & N. 212 , Ashworth v. Stanwix, 1 B. & S. 437 ; Brown v. Accrington Cotton Co,, 3 H. & C. 511 (buildings originally built in a negligent manner). (y) Wilson v. Merry, L. R. 1 H. L. Sc. 326 ; Murphy v. Smith, 19 C. B. N. S. 361. (z) Mellors v. Shaw, 30 L. J. Q. B. 333 ; Ashworth i'. Stanwix, ih. 183 (co- owners of mines). (1668) DUTIES OF MASTERS. 45 except where the Employers' Liability Act applies, which will be considered presently. He may, however, be guilty of personal neg- ligence not only in relation to the act itself which causes the injury, but he may be less directly, though sufficiently, connected with the injury by some previous negligence of his own, as by negligently hiring incompetent servants, or nob providing proper material for the work which his servants have to perform. Thus, he will be held liable to an action by his servant for negligence in selecting his servants (a), or, it seems, in retaining them after notice of their incompetence (6). He is bound to take reasonable care in the se- lection of competent persons to do his work (c), and to take reason- able care to furnish them with adequate materials and resources for the work (d), and to see that a *su£ficient number are employed [*68] where it is dangerous to leave the work to a few only (e). This is not only a duty which the master owes to other servants in his em- ploy, but also to third parties, see post, p. 77. He does not, how- ever, warrant the competency of his servants (/). If the master has given orders to the servant such as would, if obeyed, prevent any harm arising from the use of defective mater- ials, he is not liable {g), upon the ground that the servant is no longer a servant for this purpose when he is obeying positive orders. The master does not by a simple hiring contract with or guaran- (a) "Webb v. Tarrant, 18 C. B. 787. (6) Weger v. Pennsylvania Ry. Co., .55 Penn. St. 460. (c) The mere fact of incompetency is not sufficient, though it m.ny be some, evidence that the master did not take reasonable care in selecting the servant ; see Edwards v. L. & B. Ry. Co., 4 F. & F. 531. ((/) Per Lord Cairns, L. C, in Wilson r. Merry, L. R. 1 S. & D. App. 326 (scaffolding in pit obstructing ventilation);- Allen )'. New Cl.as Co., L. R. I Ex. Div. 251 ; 45 L. J, Ex. 668 (falling of gates); Brydon v. Stewart, 3 Macq. H. L. 30 (workmen coming up coal-pit) ; Williams v. Clough, 3 H. & N. 258 (de- fect in a ladder) ; Mellors v. Shaw, 1 B. & S. 437 (shaft of a mine) ; Brydon v. Stewart, 2 Macq. H. L. 30, supra ; Ogden v. Rummens, 3 P. &. F. 751 (defend- ant employed a man to shore up an arch) ; held, that if defendant had reason- able cause to believe there was danger, and the man had not. defendant was liable; see also Britton v. Gt. Western Cotton Co., L. R. 7 Ex. 130 (wheel-race in engine-house unfenced) ; Webb v. Rennie, 4 F. & F. 608 (pole left in ground an unreasmable time) ; Conolly v. Poillon, 41 B.irb. 366 (a man know- ing nothing about scaffolding was put by a man who did into hold of a gun- boat to get rubbish from beneath a scaffold ; held, he had a right to assume that due care had been taken about the scaffold) ; Weens v. Mathieson, 4 Macq. H. L. 215 (plaintiff at work under cylinder suspended by defendant) ; but see Potts. V. Plunkett, 9 Ir. C. L. 290 (landing erected by defendant, but held necessary to show knowledge) ; Murphy v. Phillips, 35 L. T. N. S. 477 (chain broke from wear and bad welding ; master had not tested it ; held, master liable) ; see also Allen v. New Gas Co., L. E. 1 Ex. D. 251 ; 43 L. J. Ex. 668 (gates unsafe when shut ; held, company not liable). (e) Saxton r. Hawksworth, 26 L. T. 851 ; Skipp v. Eastern Counties Ry. Co., 9 Exch. 223. It is mt for a jury, however, to dictate how many servants a railway company ought to keep. (/) Per Cairns, L. C, in Wilsdn v. Merry mpra, citing Tarrant v. Webb, 25 L. J. C. P. 263. {g) Durgin v. Munson, 9 Allen, 393 ; Smith v. Dawell, 3 F. & F. 238. (1G69) 46 DUTIES OF MASTERS. [*69] tee his servants against all risks (h), but he is bound *to take reasonable care of his servants, to inform them of extraordinary risks (i), and to make rules for safe management (k). The relation of master and servant imports a contract, and the law implies such matters as above stated as part of the contract. The servant is presumed to know the nature of the employment upon which he is entering, and the oridinary risks which he will run (Z). He is not bound to continue in an employment in which he runs serious risks, and if he does, he must take things as he finds them (m). A servant may, however, by his conduct waive his common law rights as against his master by entering upon the service upon other terms, either express or implied. With express contracts this work has nothing to do (n), but with respect to services given under special circumstances it should be stated that if a servant enters upon or continues in a service after notice or knowledge of danger he must be taken to have accepted the service and the danger too (o). [*70] *Where a servant has informed his master of defects, it is a question of evidence how far he and his master have agreed to a fresh service upon different terms, with an increase of liability on the master's part or of danger upon the servant's. If the master has expressly or impliedly promised to repair a defect, then, if an accident happened while such promise is running, the servant can recover (p); or, if the servant continues in the service in the rea- sonable expectation that the repairs will be effected, he can recover (q). If the promise is not performed in a reasonable time, and the servant continues in the employment, an inference arises of new (A) Riley v. Burrendale, 6 H. & N. 446. Thus, it is not suflfieient to prove that a machine was badly constructed, but it must be shown that the master employed incompetent persons to make it : Potts v. Port Carlisle Dock Co., 2 L.-T. N. S. 283. {i) Davies v. England, 10 Jur. N. S. 123.5 (not informing of danger of cutting diseased meat). (k) Vose V. L. & Y. Ry. Co., 2 H. & N. 728 (shunting railway cars). (l) Hutchinson v. N. Y. & B. Ry. Co., 5 Ex. 352. (m) Wigmore u. Jay, 5 Ex. 54 (fall of scaffold, unsound pole). (n) Ante, p. G. (o) Frazer v. Pennsylvania Ry. Co., 38 Penn. St. 104 (servant aware of habit- ual negligence of fellow-servant); Skipp v. Eastern Counties Ry. Co., 9 Exch. 2.23 (had done work without assistance for long time) ; Griffiths v. Gidlow 3 H. & N. 643 (knew defects of machinery) ; Senior v. Ward, 1 E. & E. 385 (knew rope to cnal mine insufficient); Assop v. Yates, 2 H. & N. 768 (machine left near hoarding in dangerous position ; work voluntarily continued); Dynen v. Leach, 26 L. J. Exch. 221 (fall of a weight by slipping of a clip. In this case it was held that as the servant was aware of the dangef the master was not responsi- ble, although there was a safer way of doing the work, which was discarded by the master's own orders, sed qufere ?) ; Saxton v. Hawksworth, 26 L. T. N. S. 851 (engine known to be left unattended revolved too fast and broke a drum) ; Woodley v. Metropolitan Ry. Co., L. R. 2 Ex. D. 384 ; 46 L. J. Ex. 521 (plain- tiff continued to work near a tunnel unprotected ; held, no remedy ; jury found negligence in not providing a look-out map). (p) Patterson v. Wallace, 1 Macq. H. L. 748 ; Clark v. Holmes, 7 H. & N. 937. (g) Holmes v. Worthington, 2 F. & F. 53, per Willes, J. (1670) RISKS OF SERVICE. . 47 terms ha-ving been agreed upon, and the servant cannot recover. The reason of this is said to be (Clark v. Holmes, supra) that there is contributory negligence on the part of the servant; but it is sug- gested in " Sheai-raan on Negligence," s. 97, that the true ground is that the servant has waived the objection and induced the master to suppose that it is waived, or, as we are inclined to say, the servant has renewed the service accepting the risk. The principles upon which a master is held not to be responsible to his servant for injuries, the risk of which the servant has under- taken {r), are clearly stated by Lord Cranworth (s). After stating the liabilities of masters to *third persons, his lordship thus [*7rj proceeds to deal with the master's liability to his servant: — " Bat do the same principles apply to the case of a workman in- jured by the want of care of a fellow-workman (t) engaged together in the same work ? I think not. When the v:orkman contracts to do work of any particular sort he knows, or ought to knoiv, to what risks he is exposing himself; he knows, if such be the nature of the risk, that want of care on the part of a fellow- servant (u) may be injurious or fatal to him, and that against such want of care his employer cannot by possibility protect him. If such want of care should occur, and evil is the result, he cannot say that he does not know wh°ther the master or the servant was to blame. He knows that the blame was wholly that of the servant. He cannot say the master need not have engaged in the work at all, for he was party to its being undertaken. Principle, therefore, seems to me opposed to the doctrine that the responsibility of a master for the ill con- sequences of his servant's carelessness is applicable to the demand made by a fellow-workman in respect of evil resulting from the carelessness of a fellow-workman when engaged in a common work." It should, however, be remarked that probably, in point of fact, no such reasoning exists in the mind of a person undertaking a service, and that, on the contrary, most servants would be much surprised to learn the real state of the law. It has also been doubt- ed whether the law as it stands at present is not injurious, and is not calculated to induce carelessness in both masters and servants. The master does not care to know what careless acts are done by his servants, and the servants do not care if the master does not. When an accident h'appens no one is liable, *aud nobody [*72] cares except the unfortunate man who is injured. It is doubted whether there is sufficient reason for departing from the ordinary rule that masters are responsible for the negligence of their ser- (r) As to who is a "fellow-servant," see post, p. 73 ; as to " common employ- ment," see post, p. 75. (s) Bartonshill Coal Co. ?). Ried, 3 Macq. 282 ; and the passage is approved of by Cairns, L. C, in Wilsani). Merry, supra. See also Lovell v. Howell, L. R. 1 C. P. D. 161 ; 45 L. J. C. P. 387 (sack of grain on a crane injuring waterman). (t) This is an example of the rule, but not the rule itself : see Wilson v. Merry, L. R. 1 Sc. App., p. 332. (u) As to this, see infra. (3671) 48 DUTIES OP MASTERS. vants, but not for acts done out of the course of their employment (x). The rule above laid down by Lord Oran worth only applies to such dangers as the servant might be reasonably aware of (y), and even if aware of the danger, yet if he reasonably thought that by using additional caution he could avoid the danger, and if he did use ad- ditional and proper caution, the master would, it has been suggest- ed, be still liable (z). If the master's own negligence is the proximate cause of the in- jury it is -no defence for him to allege that there was contributory negligence in a fellow- servant (a). A master is not in general liable to his servant for damage result- ing from the negligence of a fellow-servant in the course of their common employment (b). This is stated to be upon the principle that the servant has under- taken the service subject to the risk of negligence in his fellow-ser- vants (c), or, as we have before said, the law implies that it is one of the terms of the contract of service that the servant shall accept the ordinary risks of the service, of which the negligence of fellow- servants is one. [*73J " Fellow- servants " are those who serve the same master *and are under his control. One may be under the control of the other (d) but if they are both under the master's control they are fellow- servants (e). {x) The above paragraph was written before the passing of the Employers' Liability Act, which has, in some degree, mitigated the evil. (,V) See Britton v. Gt. Western Cotton Co., L. E. 7 Ex. 130 ; 41 L. J. Ex. 99. (z) Shearman, s. 95, citing Snow v. Housatoine Ry. Co., 8 Allen, 441 ; Mad River Ry. Co. u. Barber, 5 Ohio St. 541, 565, per Bartley, J. (a) Cayzer i'. Taylor, 10 Gray, 274 ; see post, Ch. VI, Contributory Negli- gence. (6) Wigmore v. Jay, 5 Exch. 354; Hutchinson v. York, Newcastle & Berwick Ry. Co. , 5 Exch. 343 ; Vose v. Lancashire & Yorks. Ry. , sujyra. (e) Hutchinson v. Y. N. & B. Ry. Co., 5 Ex. 352, per Alderson, B. ; "Wilson V. Merry, ante, p. 68. (d) S'earle v. Lindsay, 11 C. B. N. S. 429; Feltham r. England, L. R. 2 Q. B. 33; 36 L. J. Q. B. 14. It seems that in Kentucky, Ohio, and Georgia the decisions have been to the contrary effect, and it has been held that if a servant is so under the control of another servant that he is unable to take precautions against that servant's negligence, they are not fellow-servants : Shearman, s. 100, note 4, citing Cleveland Ry. Co. v. Keary, 3 Ohio St. 201. Little Miami Ry. Co. V. Stevens, 20 Ohio, 415; Cooper v. Mullins, 30 Geo. 146, and there would seem to be very great j ustice in this view. Somewhat the same view seems to have been taken in Scotland: M'Auley v. Brownlie, 22 Dunlop, 975 • Somerville v. Gray, 1 M'Pherson, 768; but such is clearly not the law in Eng- land: see Wilson v. Merry, supra; Feltham v. England, supra. (e) The following persons have been held to be fellow-servants: — Wilson v. Merry, L. R. 1 S. & D. 326 (a servant who has left the service, and has during service done a negligent act, is fellow-servant to one who comes into the service afterwards); Feltham v. England, Law Rep. 2 Q. B. 32; 36 L. J. Q. B. 14 (workman under control of foreman); Searle v. Lindsay, 11 C. B. N. S. 429 (third engineer under control of first engineer in ship) ; Sherman v. Rochester Ry. Co., 17 N. Y. 153 (brakesman and engineer of train); Wiggett Fox v. 11 (1072) FELLOW-SERVANT — COMMON EMPLOYMENT. 49 *A volunteer assistant is a fellow- servant, although the [*74] master would not be liable to third parties for his negligence as a servant (/ ), but a mere passer-by asked to help by workmen is not a volunteer assistant (g), nor is a person who performs a part of a contract or duty which another is bound to perform by the permis- sion of the person who would otherwise have to do it (h). Sometimes, as appears from some of the cases cited infra (i), the servants, although for some purposes they are serving the same master, yet have diiferent masters in other respects. The law does not permit a master so to delegate his authority to another as to relieve himself of all liability for negligence; and it seems that it is the law in America that if he delegates to another his power of selecting servants, he ought still to be held liable for negligence in such selection (k). But Lord Chelmsford, in deliver- ing judgment in "Wilson v. Merry (l), said that to direct a jury that if a foreman " had the complete power of engaging and *dis- [*75] missing workmen as he pleased, and the ventilation process was en- tirely left to him without the direction or control of the defenders, Exch. 832 (workman under sub-contractor engaged in doing by piecework particular portions of common work, viz., building tower at Crystal Palace); Charles v. Taylor, L. E. 3 C. P. D. 493 (man unloading coals from barge, and man lifting barrels) i Wright v. London & N. W. Ey. Co., 45 L. J. Q. B. 570; L. R. 1 Q. B. D. 252 (unloading a heifer); Howells v. Landore Steel Co., L. R. 10 Q. B. 62; 44 L. J. Q. B. 25 (certificated manager of mine and miner); Lovell V. Howell, supra (waterman and servants at granary with sack on a crane) ; Conway v, Belfast & Northern By. Co., 11 Ir. E. C. L. 345 ( general traffic manager and milesman) Lovegrove v. London, Brighton & S. C. Ry., 16 C. B. N. S. 669; 33 L. J. C. P. 329 (labourer filling tracks with ballast and plate- layers) ; Gallagher v. Piper, ibid, (labourer erecting scaffolding and builder's foreman). The following persons have been held not to be fellow-servants: — Fletcher !'. Peto, 3 F. & F. 368 (servant and contractor; plaintiff contractor to carry guano, servants to pile it at ordinary wages) ; Abraham v. Eeynolds, 5 H. & N. 143 (plaintiff, servant of carter, to take bales from defendant's ware- house ; defendant's servants let bale fall ; parties having a common object but diflferent interests) ; Sawyer ?i. Eutland Ry. Co., 27 Vern. 370; Smiths. N. Y. & Harlem Ry. Co., 19 N. Y. 127 (contract between two companies for joint use ofline — servants not fellow-servants) ; Wartburtonj). Gt. Western Ry. Co., L. R. 2 Exch. 30; 36 L. J. Ex. 9 (porter of one company and engine-driver of another; station used in common ; held, not in course of common employment or opera- tion under the same master); Graham v. North-Eastern Ey. Co., 18 C. B. N. S. 229 (signalman of one company and driver of another) ; Swainson v. North East- em Ry Co., 47 L. J. 372; L. R. 3 Ex. Div. 341 (signalman of one company and driver of another) ; Murphy v. Smith, 19 C. B. N. S. (boy directed by person to stir explosive substance; question whether such person was "vice-principal" or folio w-servant; held, no evidence of being vice-principal); Paterson v. Wal- lace 1 Macq. H. L. 748 (agent in charge of mine). (/) Potter V. Faulkner, 1 B. & S. 100; Degg v. M. Ry. Co., 1 H. & N. 773. (g) Cleveland v. Spier, 16 C. B. N. S. 399. (A) Wright V. L. &N. W. Ry. Co. 1 Q. B. D. 252; Holmes r. N. E. Ry. Co., L. E. 6 Ex. 123. (?) See cases in note (e), and Wigget v. Fox note (e) ; Eourlce v. White Moss Co 1 C P D 556' 2 C P. D 205. (k) Shearman, ss! 102^105, citing Grizzle v. Frost, 8 F. & F. 622 (l) Wilson V. Merry, L. E. 1 S. & D. 326, 338. 4 LAW OF NEG. (1673) 50 DUTIES OF MASTEES. he was a superintendent and not a fellow-workman with the de- ceased," would be a misdirection; and Lord Cairns said, the respond- ents had delegated no power, authority, or duty except in the sense in which a master who employs a skilled workman to super- intend a portion of his business delegates power, authority, and duty to the workman for that purpose .... and the learned jadge ought not, as I think, have suggested to the jury that this could be viewed in any other light than as the ordinary employment by the respondents of a sub manager or foreman. I think the learned judge ought to have told the jury that if they were of opinion that the respondents exercised due care in selecting proper and competent persons for the work, and furnished them with suit- able means and resources to accomplish the work, the respondents were not liable" (m). It seemgd to be agreed in this case that the terms "fellow- workman or servant," " collaborateur," "foreman." or "manager" are misleading, and it seems to be the result of this case, that when the master has provided proper means and re- sources for the work he is not responsible for the acts of those in his employment injuring one another, whatever their particular grade or denomination may be, provided they are engaged in the common employment. In order to exonerate the master, the servant who does the injury must not only be the "fellow-servant" of the servant injured, but the two servants must be in the "same common employment" (n) (m) Wilson v. Merry, L. E. 1 S. & D. App. at p. 333. (n) The following persons have been held to be engaged in a common employ- ment:— Waller V. S. E. Ey. Co., 2 H. & C. 102; Lovegrove v. L. B. & S. C. Ey. Co., 16 C. B. N. B. 669 (guard of train and plate-layer); Russel v. Hudson Kiver Co. 17 N. Y. 134 (assistant brakesman and engine-driver) ; Farwell v. Boston Ey. Co., 4 Mete, 49 (engine-driver, and engine-driver and guard of another train); Charles v. Tayler, Walker & Co., L. E. 3 C. P. D. 495 (unloader of coals from barge and lifter of barrels) ; Bartoushill Coal Co. v. Eeid, 3 Macq. H. L. 266 (engineer of coal mine above ground and men belovr) ; Hull v. Johnson, 3 H. & C. 589 (workmen and underlooker in a coal mine); Morgan v. Vale of Neath Ey. Co., L. E. 1 Q. B. 149; 44 L. J. Q. B. 23 (carpenter and porters shift- ing locomotive); Boldt !'. N. Y. Central Ey. Co., 18 T. N. 432; Eyan ji. Cumber- land Valley Ey. Co., 20 Penn. St. 384; and other cases in America; and Tun- ney v. Midland Ey. Co., L. E. 1 C. P. 291 (workmen -on line carried free to their work and engine-driver of trains) ; Eourke v. White Moss Colliery Co. , L. E. 2 C. P. D. 205 (defendants, colliery proprietors, contracted with W., plain- tiff's employer, to do work, they to pay engineer and provide steam-power, en- gineer to be under control of W. ; held, plaintiff and engineer in common em- ployment of W.). The following servants have been held not to be engaged in a common em- ployment: — Turner v. Great Eastern Ey. Co., 33 L. T. N. S. 431 (a labourer employed by a contractor to unload trucks, and porters engaged in shunting) ; Warburtonu G. W. Ey. Co., L. R. 2 Exch. 30; 36 L. J. Ex. 9; Chicago Ey. v. Gregory, 58 111. 272 (fireman and controller of mail catcher) ; Baird v. Pettitt, 70 Pa. St. 477 (draftsman in engine-house and jobbing carpenter) ; and see the cases anie, where servants have been held not to be fellow-servants, and where, as will be seen upon reading the cases, the distinction between "fellow-ser- vice" and " common employment " is not always maintained. See note (j;), ante, p. 72, as to alteration in the law. (1674) NEGLIGENCE OF SERVANTS. 51 " There may be some nicety *and difficulty in peculiar cases [*76] in deciding whether a common employment exists; but in general, by keeping in view what the servant must have known or expected to have been involved in the service which he undertook, a satisfac- tory conclusion maybe arrived at" (o); or, in other words, the question is, did the servant know that the employment of the other servant was one of the terms of their common service? (p) It is " the natural and necessary consequence of the employment which the servant has accepted f"{q) All the servants of one master may not be engaged in a common employment, their employments may be absolutely distinct and separate, so that one servant *could [*77] not possibly be supposed to consider the acts of the other to be part of the risks of service which he undertook, but it would be "letting in a flood of litigation," if the "employes in every large establishment are split up into different departments of service ; al- though the common object of their employment, however difPei'ent, is but the furtherance of the business of the master yet it might be said with truth that no two had a common immediate object. This shows that we must not over refine, but look at the common ob- ject and not at the common immediate object " (s). Even if their oc- cupations lie far apart, it seems that they may be engaged in a com- mon employment (t). If there is one common general object to be attained by the two servants, it is immaterial that the immediate object of their work is different (m). Section VI. — Sub- section II. (2) Breach of Duties to Others. A master is responsible to other persons besides his own servants for negligence of himself, his deputy, or his servant while employed as such (v). And he is responsible amongst other things for prop- erly selecting his servants (x). If the servant is not, at the time when he commits an injurious act, engaged in pursuing his master's employment, but in pursuing his own private euds, the master is *not liable for his ser- [*78] (o) Per Lord Chelmsford, Bartonshill Coal Co. v. McGuire, 3 Macq. H. L. 300, 308. (b) Feltham r. England, L. E. 2 Q. B. 3G; 36 L. J. Q. B. 14. (q) Morgan v. Vale of Neath, L. E. 1 Q. B. 149; 44 L. J. Q. B. 23. (s) Morgan v. Vale of Neath, mpm. (t) Farwell v. Boston Ey. Co., 4 Met. 49 (engine-drivers of different trains). (u) Charles v. Taylor, L. E. 3 C. P. D. 492. Morgan v. Vale of Neath, mpra, per Pollock, C. B. . E. 2 C. P. D. 357 (servant of brewer returning with empty casks, not in employment). Where, upon the other hand, the servant was going on his own business in a gig, but undertook some business for his master, in the performance of which he ran against plaintift's horse, the master was held liable ; Patten v. Eea, 2 C. B. N. S. 606 ; Venerables v. Smith, L. E. 2. Q. B. D. 279 ; 46 L. J. Q. B. 470 (cab- driver returning home still in employment) : Williams v. Jones, 33 L. J. Ex. 297 ; 3 H. & C. 602, in Ex. Ch. (carpenter smoking a pipe set fire to a shed ; held, not in course of employment); Lunn v. L. & N. W. Ey. Co., 35 L. J. Q. B. 105 ; L. E. 1 Q. B. 277 (watchman at level crossing exercising discretion as to passage of a cart); Weldon v. New York & Harlem Ey. Co., 5 Bosw. 576 (defendant's servant mischievously struck horses in charge of another servant); Saterlee v. Groot, 1 Wend. 273 (a servant being sent for goods of A, brought also goods of B, and embezzled A's goods ; master not liable). . (.1;) Barwick v. English Joint Stock Co., L. E. 2 Ex. 259; 36 L. J. Ex. 147, per Willes, J. {a) Allen v. L. &. S. W. Ey. Co., L. E. 6 Q. B. 65, per Blackburn, J. (6) Seymour v. Greenwood, 7 H. & N. 356 ; 30 L. J. Ex. 327 (assault— guards of omnibuses); Meyer v. Second Avenue Ey. Co., 8 Bosw. 305 (driver of tram- way) ; Sandford d. Eighth Avenue Ey. Co., 42 Penn. St. 365 (do.); Bayley u Man., Sheff & Line. Ey. Co., L. E. 8 C. P. 148; 42 L. J. C. P. 78 (assault- porter pulling passenger back from train in motion); Moore v. Met. Ey. Co., L. E. 8 Q. B. 36 ; 42 L. J. Q. B. 23 (false imprisonment — passenger not paying proper fare, given in custody), (1676) ORDINARY COURSE OF EMPLOYMENT. 53 had nothing to do, it was held that her master was not liable (c). Such cases as these must be of somewhat rare occurrence. The case cited scarcely seems to have come within the rule, as it prob- ably was within the scope of the servant's duties to clean the chim- neys, if not to sweep them. But, however that may be, a servant cannot properly be said to be performing his ordinary duties at the same time that he is pursuing some purpose differing from his duties. The whole question is, is he performing his ordinary duty, or is he doing something differing therefrom? and this (subject to an explanation from the judges as to how far mere license or ordinary practice may be evidence of what the ordinary duty is) is a question for the jury. It is no defence to allege that the servant exceeded his *orderB [*80] or acted contrary to orders, if he was acting in the course of his em- ployment (d) ; nor even that he was acting illegally (e). It has also frequently been held that if the servant, although engaged all the while in the ordinary course of his employment, does some wanton act, the master is not liable; but the contrary has also been held in many cases. The test is, whether the wanton act was done in the course of employment or not, although the judg- ments of the courts do not always apply the test accurately (/) ; and, *indeed it must always be difficult to do so. If the act [*81] done is one which is plainly in the course of employment, though (e) Mackenzie v. McLeod, 10 Bing. 385. (d) Limpus v. London Omnibus Co., 1 H. & C. 526 ; 32 L. J. Ex. 34 (omni- buses racing. ) (e) See same case, per Crompton, J. (/) Vanderbuilt v. Kichmond Turnpike Co., 2 N. Y. 497. (The captain of a vessel, sailing in his proper course, wantonly ran down a vessel. The master was held not liable, no doubt, because it was no part of his business to run down the vessel, but it was his ordinary duty to steer clear of it. He was dis- tinctly pursuing his own private ends.) Illinois Central Ey. Co. v. Downey, 18 111. 259 (defendants servants (wantonly) ran a train of cars over plaintiff's team, and the master was not liable). Limpus v. London Omnibus Co., supra, shows clearly the nature of the true test. Mr. Justice Wightman, who differed from the rest of the Court, did so upon the ground that racing with the rival omnibus was not, as a matter of fact, in the course of the servants duty. A servant, while driving his master's coach, got entangled with plaintiff's, and struck plaintiff's horses. It was held that if he struck them wantonly the master was not liable ; Croft v. Alison, 4 B. & Aid. 590 ; and see McManus v. Crickett, 1 East. 106 ; Seymour v. Greenwood, 30 L. J. Ex. 327 ; 7 H. & N. 350 ; Stevens v. Woodward, 6 Q. B. D. 318 (clerk to solicitors went into lavatory meant only for his employers and turned on the tap) ; see Bayley v. Manchester Ey., supra (assault — a conductor of an omnibus violently and wantonly dragged a man out of the omnibus for being drunk ; it was held that the act was in the course of the employment, and the master was liable) ; Ward v. Gen. Omnibus Co., 42 L. J. C. P. 265 (negligence — question for the jury, whether an omnibus conductor struck a blow with his whip out of private spite or in furtherance of his master's business); North v. Smith, 10 C. B. N. S. 572 (negligence— the defendant's groom struck his spurs into horse just as he was passing plaintiff's wagon ; held, not liable); Lucas v. Mason, L. R. 10 Ex. 251 ; 44 L. J. Ex. 145 (assault^chairman ordered persons making disturbance to be brought before him ; held, not liable). (1677) 54 DUTIES OF MASTERS. the real motive is personal spite, the master is not exonerated, as it would be obviously unfair to the injured party to start such a defence upon him, and, of the tvs^o innocent parties (the master and third party), it is more reasonable that the master should suffer (g). It should be borne in mind that where the act is intentional the question of negligence does not arise (h) ; yet the master may be liable in an action of tort (other than negligence) if such inten- tional act was within the scope of the employment. Generally, of course, if the servant did an intentional wrong it would be without the scope of his employment, and the master would not be liable. It is somewhat doubtful what is the meaning of an act being " wanton.'' If all that is meant is that the act is " very negligent " (i) the master is liable for negligence, if it is within the scope of the employment ; and if what is meant is that it is " intentional," then the master is liable for tort (other than negligence), if it is within the scope of the employment. If the act is not vsdthin the scope of the employment the master is not liable. So tjiat the mas- ter is liable in some form of action for all wrongful acts done within the scope of the employment, but if the act is intentional and within the scope of the employment, the form of the action is tort (other than negligence), but if it is unintentional, i. e., negli- gent, the form of the action is negligence. A difficulty always arises in determining whether the act done was in the course of employment, for the mere fact of the negli- [*82] gence is itself an indication of some variation in the *course of employment, and the line between such variation and an abso- lute departure must often be very fine (fc). It is said that "a master is not bound to anticipate a perfectly gratuitous trespass on the part of a servant, such, for example, as his entering without necessity upon a stranger's land. No pre- sumption of authority arises from the fact of the act having been done for the master's benefit or from his silence in regard to it " {I). The fact that the act done was for the benefit of the master, how- ever, must be some evidence of the act being done in the course of the employment (m), and if an illegal act be within the scope of the servant's probable authority, and be done for the master's bene- fit, the master would be held responsible (n). Questions frequently arise as to whether the servant of the de- {g) And see Shearman, s. 66, p. 85. (h) Ante, p. 2. (i) See Limpus ?). London Omnibus Co., supra {" wantonly, carelessly, reck- lessly, and wilfully"). {k) Puryear v. Thompson, 5 Hump. 397, cited in Shearman, s. 66, note 3, where an overseer heat a slave and killed him, intending to do so. (l) Shearman on Negligence, s. 62 ; citing Church v. Mansfield, 20 Conn. 284. See also Harris v. Nicholas, 5 Munf. 483 ; Lyons r. Martin, 8 Ad. & E. 512 (driving cattle into master's close and then distraining). (m) See Limpus v. General Omnibus Co. , ante, p. 80. (n) Att.-Gen. v. Siddon, 1 C. & J. 220. (1678) UNDEE-SERVANTS. 55 fendant was, at the time when the injury was caused, still in the defendant's service (o). The master is liable for the negligence of under- servants em- ployed by his servant by his authority, but this authority may some- times arise by implication, and a question frequently arises as to whether such authority can be implied or not (p). Where the management of anything is conducted by *an- [*83] other other than the owner, the owner is primO. facie respon- sible. The owner may rebut this presumption by showing that the person engaged in the management was not his servant (g), but was the servant of somebody else (r). This may of course appear either from the plaintiff's own case or the defendant's, and may either be made to appear from direct evidence or from evidence as to the usual course of business. Thus, where it is the usual course of business to employ a contractor to do certain work, no presumption arises that the work is being done by the servants of the owner of the property (s). The question who is the master of a person engaged in doing the act is one of frequent difficulty (<), and the *difficulty does [*84] (o) Page !'. Defries, 7 B. & S. 137. A foreman of a wharf told defendant's servant (a lighterman) to remove a boat. Held, that he was still acting as de- fendant's servant (oven-uling Lamb v. Palk, 9 C. & P. 621.) (p) Simmons v. Monier, 29 Barb. 419 (servant employed another mail to throw snow off a house, master held liable) ; Booth v. Mister, 7 C. & P. 66 (servant let another man drive his master's cart, master held liable). (g) Byrne v. Boadle, 2 H. & C. 721 ; 33 L. J. Ex. 13 ; Scott v. London Dock Co., 3 H. & C. 596 ; 34 L. J. Ex. 220. Also in cases of cabdriver and pro- prietor, see Fowler v. Lock, 41 L. J. C. P. 99; L. R. 7 C. P. 272 ; King v. Spurr, L. E. 8 Q. B. 104; Venables v. Smith, L. R. 2 Q. B. D. 279; 46 L. J. Q. B. 470 ; in cases of shipowners and captains, see Steel <■. Lester, 47 L. J. C. P. 43; L. R. 3 C. P. D. 121; Laugher r. Forrester, 5 B. & C. 547 (owner of car- riage hired horses from stable keeper who provided driver) ; Brady v. Giles, 1 M. & Rob. 494 (question for the juiy whose servant the. driver is); quaere as to authority of this case, see Macdonnell on Master and Servant, p. 269; Quarman v. Burnett, 6 M. & W. 499 (owner of carriage jobbing horses not liable for acts ot driver, unless he orders him to drive in a particular manner, see M'Laughlin V. Prior, 4 M. & G. 48); Dayrell r. Tyrer, 28 L. J. Q. B. 52 ; E. B. & E. 899 (lessee of ferry hired tug and crew of defendant, plaintiff, contracted with les- see, crew negligent, held defendant liable, see Fenton v. Dublin Steam Packet Co., 8 Ad. & E. 835). It may here be observed that if the plaintiff chooses to accept compensation from the driver of the vehicle, under 6 & 7 Vict. c. 86, s. 28, he cannot afterwards recover against the driver's employers: Wright v. London Omnibus Co., L. R. 2 Q. B. D. 279. (r) Shields v, Edinburgh Ry. Co., Hay, 254 (defendant lent a van to a per- son who put his own horse in, and drove by his own servant, held the defend- ants, although owners, were not liable). (s) Welfare v. London & Brighton Ry. Co., L. R. 4 Q. B. 693; 38 L. J. Q. B. 241. (t) Lucy V. Ingram, 6 M. & W. 302; Genl. Steam Nav. Co. v. British & Col- onial Steam Nav. Co. , L. R. 4 Ex. 238, Ex. Ch. (pilot compulsorily taken on board, not servant); Corbin v. American Mills, 27 Conn. 274 (plain tiff contracted with defendant to build a dam with .stone which he obtained as part payment of an- other contract to remove the stone by blasting. He and his men were to be paid by the day, the defendant furnishing the powder for blasting and superin- (1679) 56 DUTIES OP MASTERS. not seem to be removed by saying that he is the master whose will the servant represents (u). Where a master allows his servant to be hired by another, he re- mains liable to the hirer (x) and to strangers (y), for negligence of such servant ; and even where that other himself selects the servants although the master might not be liable for mere incom- petency, yet he would be so for negligence (z). If the master abandons all control over the servant, and all right to discharge him, and these rights are taken by the hirer, of course the servant becomes the servant of the hirer. In order to render a person liable for the acts of another employ- ed by him to do a lawful act, the relation of master and servant must exist (a). Where such relation does not exist (but the per- son employed is what is called a "contractor") it is presumed that the person employed was employed to do the act in a reasonable [*85] and careful manner, *and if he does not do so, his employer is not answerable (6). If the master himself interferes with the work he may render himself liable. The owner of premises employed a person to make a drain to the common sewer, ana the workmen placed gravel on the highway to the injury of the plaintiff. The owner had been informed of the danger and had promised to remove the heap. The person employed paid a man for removing some of the gravel and charged the owner for such payment on account. It was held that the owner was liable, on the ground that he had himself inter- fered with the work (c). tending the building of the dam, but having no control over the blasting, held, not a servant) ; Stevens v. Squires, 6 N. Y. 435 (B. sent his porter to remove a box from A. 's store, vphich A. had sold to him. A. gave permission to remove it, held, porter servant of B. not A. ) ; Merrick v. Brainord, 38 Barb. 574 (carrier employed a towboat, persons in charge negligent, held carrier liable) ; Murphy ■II. Caralli, 3 H. & C. 462 (warehouse-men having full control directed defend- ant's servants to pile bale of cotton, held, servants of warehousemen only). («) See Shearman, s. 73. l^xj Holmes v. Onion, 2 C. B. N. S. 790 (thatching). (y) Dayrell v. Tyrer, El. B. & El. 899 (crew hired, paid, and controlled by defendant, steamer let out to H., held, defendant liable). (z) Holmes v. Onion, supra. (a) The case of employing another to do an act from which injury must flow, unless care be taken, is considered in Ch. Ill ; Bower v. Peat, L. E. 1 Q. B. D. 321; 45 L. J. Q. B. 446; Tarry v. Ashton, L. R. 1 Q. B. D. 314; 45 L. J. Q. B. 260; Angus & Co. v. Dalton, 48 E. J. Q. B. 225; L. E. 4 Q. B. D. 162-; 6 App. Cas. 740: Hughes v. Percival, 8 App. Gas. 444. (J) Butler V. Hunter, 7 H. & N. 826; 31 L. J. Ex. 214 (owner of house and builder). See remarks of Lord Blackburn on this case in Hughes v. Percival, supra. Peachy v. Eowland, 13 C. B. 182 (man employed to make a drain; but see Sadler v. Henlock, 4 El. & Bl. 570; 24 L. J. Q. B. 138); Cuthbertson 1^ Parsons, 12 C. B. 304 (commissioners employed steam tug, owners held not liable); Brown i). Accrington Cotton Co., 3 H. & C. 511 (building erected by contract, owner not interfering) ; Taylor n. Greenhalgh, L. R. 9 Q. B. 487; 43 L. J. Q. B. 168 (surveyor of highways employed another person and his men, and did not interfere, held, thev were not servants of defendant). (t) Burgess v. Gray, 1 C. B. 578. (1680) CONTRACTORS. 57 Where the employer of the contractor has no duties, but the con- tractor has, the conti-actor is liable; but where the employer has a duty towards the plaintiff he cannot delegate its performance to a thii-d party (d). A frequent illustration of this is found in cases of hiring of carriages, where it is a question whether the driver is the servant of the owner, or whether if he was a contractor, yet the owner so interferes as to render himself liable (e). Care should be taken in applying this rule to avaid two errors. In the first place, it should not be forgotton that where a man has a personal duty to perform, he cannot *esuape its perfor- [*86] mance by leaving it to some one else to do, and in the above cases there was no duty delegated; and in the second place, that if the person who has employed a contractor, has nevertheless impliedly promised the plaintiff that a certain state of things exists (as that a stand or bridge is safe,) it becomes such person's duty to see that it is safe, and he is liable notwithstanding he has employed a compe- tent person (/). A "contractor" is one who engages to do a certain work for another, but is free to use such means to accomplish the result as he may see fit (gr), and it is not conclusive evidence of service or no service whether he is paid by the day or by the job (h). Thd fact that a person employed to do any work is liable to dismissal by his employer, is strong evidence of his character as a servant, and not contractor (i), but not conclusively so (k). But here, as in many other instances to which reference has already been made, the difii- culty lies rather in the facts than in the law. Thus, sometimes, an employer limits the control of the person employed as to the mode in which the work is done, though not as to the choice of work- men; or as to the choice of workmen, and not as to the mode of doing the work; but it is not proposed, as stated in Chapter I., p. 6, to deal with questions of this sort which depend upon the con- structions of particular contracts rather than upon the law of neg- ligence. The principle is now well established, both in England and America (l), although after a long course of conflicting decisions in both countries, that the employer of a *" contractor" is not [*87] (d) Hughes r. Percival, supra. (e) M'Laughlin v. Pryor, 4 M. & G. 48 (action for trespass in driving a car- riage with postillions against the plaintiff's gig); Laugher r. Pointer, 5 B. & C. 547 (defendant, owner of carriage, hired horses, owner of horses sent his driver who was negligent, held, defendant not liable). , (/) See the cases post, Ch. III., s. 7, Corporations; and see Francis r. Cocke- rell, L. E. 5 Q. B. 501; 39 L. J. Q. B. 291; Grote v. Chester Ey. Co., 2 Ex. 251. (g) Allen v. Hayward, 7 Q. B. 960; Sadler v. Henlock, 4 El. & B. 570. (h) Per Crompton, J., Sadler v. Henlock, supra. (i) Blake v. Thirst, 2 H. &■ C. 20. See Charles v. Taylor, L. E. 3 C. P. D. 492 (ic) Reedie v. North West Ry. Co., 4 Ex. 244. (l) See Shearman, s. 79. (1681) 58 DUTIES OP MASTERS. responsible for the negligence of the contractor or his servants (m), (where the work contracted to be done is not of itself dangerous) (w), or there is no duty incumbent upon the employer to do the thing himself (o). The same rule holds with respect to contract(^r and sub-contractor, if such sub-contractor is a contractor and not a servant (p). The mere recommendation by the contractor's employer of a ser- vant will not make him the servant of the employer, nor will the mere expression of a preference for one of the contractor's ser- vants (q). As has been already said, where there is a duty imposed upon, or impliedly undertaken by, the employer himself, he is liable for the due exercise of such duty ; and where an obligation is imposed upon any person by law he cannot escape from it by employing a [*88] contractor. Thus, where *a statute ordered the owner of land to make a drain, and to refill it with earth, and the owner employed a centractor who neglected properly to refill the drain, it was held that the owner and not the contractor was liable (r). And where there is a duty upon the lessee of premises not to leave a trap door open it is no answer that the servant of a coal merchant left it open (s). (m) Allen ?-. Hayward, 7 Q. B. 960 (making a drain) ; Butler v. Hunter 7 H. & N. 82G (architect employing contractor to pull down party-wall) ; Slilligan v. Wedge, 12 Ad. & E. 737 (butcher employing drover) ; Steele r. South Eastern Ry., 16 C. B. 550 (contractor cutting through road into drain); Reedie r. L. & N. W. Ry. Co., 4 Ex. 244, supra (contractor making viaduct); Peacheyu. Row- land, 13 C. B. 182 (earth heaped up by a contractor so as to be a nuisance). (n.) Tarry t). Ashton, ante, p. 84. Or wrongful. See Ellis v. Sheffield Gas Co., 2 Ell. & Bl. 767; or naturally leading to danger. See Bower v. Peate, ante, p. 84. (o) See infra. (j)) Rapson r. Cupitt, 9 M. & "W. 710 club committee, builder, gasfitter ; held builder not liable); Knight r. Fox, Ex. 721 (railway company emj)loyecl con- tractor to make line, sub-contractor to make bridge, sub-sub-contractor to sup- ply scaffolding, sub-contractor to supply lights for scaffolding ; injury to plain- tiff from negligence with respect to scaffolding ; held sub-contractor not liable, as sub-sub-contraetor, although a general servant of the sub-contractor, was a contractor); Overton r. Freeman, 11 C. B. 867 (defendant contracted to pave a district, sub-contract to pave a street, contractor finding stones and carts, stones negligently left in street, contractor not liable ; Peason r. Cox, L. R. 2 C. P. D. 369 (contractors build building and remove hoarding, sub-contractor's men do- ing interior let tool fall, held contractor not liable). Jq) Quarman r. Burnett, 6 51. & AV. 499 (defendant's asked for a, particular driver ; held, not their servant. (r) Gray r. Pnllen, 5 B. & S. 970 ; 34 L. J. Q. B. 265 ; Piekard v. Smith (occupier of refreshment room liable for coal merchant's servants negligently leaving cellar grating open); Hole ■!'. Sittingbourne Ry. Co., 6 H. & N. 488 (railway company to construct bridge by Act of Parliament to open with- out detaining vessels ; contractor negligent and company liable) ; Slersey Docks Trustees v. Gibbs, L. R. 1 H. L. 93 ; 35 L. J. Ex. 2.)5, H. L. ; Tarry v Ashton, L. R. 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 ; Hyams v. AVebster, 36, L. J. Q. B. 166 ; and see " Corporations performing statutory duties, " jjosi, Ch. Ill, s 7 (s) Piekard v. Smith, 10 C. B. (N. S.) 470. (1682) THE employers' liability act, 1880. 59 If the employer has in any way undertaken a duty in respect of the work which he has given to the contractor to do, he must, of course, perform such duty with reasonable care. And, if he under- takes to supply the contractor with things necessary for the preven- tion of injury to third parties, and injury aries from his neglect to do so, he will be liable (t). So, also, it has often been held that the employer has a duty to see that, after the contractor's servants have left off work, the works are left in a safe condition, so as not to injure strangers (u). Owners of real property are not liable for the negligence of " con- tractors," any more than the owners of chattels (x), although for a long time it was held that they were. If the work which the owner orders the contractor to *per- [*89] form be wrongful, the owner will be responsible to third prrties for the wrongful acts so done by the contractor and his 6ervants(2/). "Where a person is the servant of the Government, as the Post- master-General (z), the caprain of a man-of-war (a), or of the public, as the surveyor of highways (6), he is not responsible for the negligence of others in the same employment, and this, notwith- standing that no action can be brought against the principal. Section VI. — Sub-section III. The Employers' Liability Act, 1880. The law having been laid down, as we have seen ante, p. 72, that a master is not in general liable to his servant for damage result- incr from the negligence of a fellow -servant in the course of their common employment, and workmen and other servants having very much insisted upon the hardships involved in such a state of the law, a Bill was, after several attempts, passed in favour of the em- ployed, and was entitled the Employers' Liability Act. There is, however, no provision in the Act to ensure the operation of it as against a master who is willing and able to induce his servant to agree that the Act shall not apply to his service, and the statute is therefore open to all the objections so often urged against permis- (() Gilbert v. Beach, 5 Bosw. 445. (k) Smith V. Milne, 2 Dow, 290 (person employed to plaster house, cut hole into staircase and left it ; held, proprietor liable.) (x) Gayford v. NichoUs, 9 Ex. 7:3, overruling Bush v. Steinman, 1 B. &P. 404, See also Reedie v. L. & N. W. Ry. Co., 4 Ex. 244 ; Knight v. Fox, 5 Ex. 721 ; Overton v. Freeman, 11 C. B. 867. (v) Ellis V. Sheffield Gas Co., 2 El. & Bl. 707. (z) Lane v. Cotton, 1 Ld. Raym. 646 ; Whitefield v. Despencer, C'owp. 754. (a) Nicholson v. Mounsey, 15 East, 384. ^ ■„ , „ t ^o (•6) See per Blackburn, J., in Mersey Docks v. Gibbs, L. R. 1 H. L. 93, at p. Ill ; 35 L. J. Ex. 225 ; and see Public Officers, infra. (1683) 60 DUTIES" OF MASTERS. [*90j sive legislation *(c). . It has been held that a workman can contract himself out of the statute, and that such contract is bind- ing upon himself and his widow, suing under Lord Campbell's Act, where such contract is not induced by fraud or force, or made under duress, and is made on good consideration (d). Mr. Justice Field said that workmen, as a rule, were perfectly competent to make reasonable bargains for themselves (e); but, if this be so, it does not appear why any statute was needed. "At the time of the passing of the Act," said Mr. Justice Field (/), "the law stood thus : It was an implied term of the contract between employer and workmen that the latter should not recover damages if ha was injured by the negligence of a person (even a superior) in the common employment. Then the effect of section 1 was to do away with that term." " The effect of section 1," said Justice Cave (gr), "is that the workman may bring his action in five specified cases or classes (h), and the employer shall not be able to say in answer that the plaintiff occupied the position of workman in his service, and must therefor be taken to have impliedly contract- ed not to hold the employer liable. In other words, the legal re- sult of the plaintiff being a workman shall not be that he has im- [*91] pliedly contracted to bear the risks of the employment," *i. e., as the five specified classes are concerned. With regard to other servants who are not within any of these five classes, but are fellow- servants in the common employment, the old common law rules ap- ply. Thus, in Eobins v Cubitt (i), where a pail was lowered negli- gently by fellow-servants of the plaintiff, who were not in positions embraced by any of the above five classes, the employer was held not liable. The old common law rules would seem also to apply in any case where the proceedings are not taken under the Act (as by due notice, &c. ), but are taken at common law. It was not in- tended, however, that workmen should have a double remedy, and proceed for the same cause of action under the statute and at com- mon law (j). The statute also only applies to "workmen" as de- fined by sect. 8 of the Employers' and Workmen Act, 1875 (k), and (e) In a small book on the Employers' Liability Act, by Mr. Thomas Bevan, will be found a copy of a letter from Lord Justice Bramwell to Sir Henry Jackson, in which the Lord Justice, with his usual force, maintains that the Act is a mistake in many ways, and amongst others, because the large employ- ers of labour will contract themselves out of the Act, while the smaller em- ployers will be hit ; but I am inclined to think that it is the small employers who are especially the most negligent, and who ought to be made more careful. . (d) This view is also taken by Lord Bramwell in the letter above referred to. (e) The employer had contributed to a club an amount equal to the whole contributions of the men. (/) Griffiths V. Dudley, (Earl), 9 Q. B. D. 357, 363. (?) p. 366. (h) See Mr. Justice Field's judgment, p. 362. h) 46 L. T. N. S. 535. U) Munday v. Thames Iron Works Co., 47 L. T. N. S. 351 ; 10 Q. B. D. 59. (k) Sect. 10 of 38 & 39 Vict. c. 90, "the expression workman does not include a domestic or menial servant, but, save as aforesaid, means any person who, (1684) THE employers' LIABILITY ACT, 1880. 61 to railway servants (I). Therefore clerks, shopmen, timekeepers, &c., are excluded. Seamen are not within this statute (in) nor are workmen in the service of the Crown, as they are not mentioned (n). Workmen includes workwomen (o) ; apprentices of a limited class are pro- bably included (p). *Section 1 of the text runs as follows : — [*92] " 1. Where after the commencement of this Act personal injury is caused to a workman. "(1.) By reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer ; or " (2.) By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence ; or "(3.) By reason of the negligence of any person in the service of the employer to whose orders or directions the work- man at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed ; or " (4. ) By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or bye laws of the employer, or in obedience to par- ticular instructions given by any person delegated with the authority of the employer in that behalf ; or " (5.) By reason of the negligence of any person in the service of the employer who has the charge or control of any sig- nal, points, locomotive engine, or train upon a railway, " the workman, or in case the injury results in death, the legal per- sonal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and reme- dies against the employer as if the workman had not been a work- man of nor in the service of the employer, nor engaged in his work." It will be convenient to consider the several sub-sections of the above section separately in their order. By sect. 1, sub sect. 1, where personal injury is caused to ^ work- being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether under the age of twenty-one years or above that age, has entered into or works under a contract ■with an employer, whether the contract be made before or after the passing of this Act, be expressed or implied, oral or in writing, and be a contract of Ser- vice or a contract personally to execute any work or labour" : see post, p. 93.' (I) Sect. 8. (m) See 43 & 44 Vict. c. 16, s. 11, preserving the excluding words of the Em- ployers' and Workmen Act, 1875. (n) Maxwell on Statutes, p. 112. (0) 13 & 14 Vict. c. 21, s. 4. (1) See ss. 5, 6, and 12 of the 38 & 39 Vict. c. 90, Employers' and "Workmen Act, 1875. (1685) 62 DUTIES OF MASTERS. [*93] man (g) by reason of' any defect (r) the *workman (s) shall have the same right of compensation and remedies against the em- ployer as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work (t). By sect. 2, sub-sect. 1, such defect must have arisen through the negligence of the employer or of some person in his service en- trusted with the duty of looking after such defects (m) ; and by sub-sect. 3, if the workman knows of the defect and fails to give information to the employer or some superior person (x) his em- ployer is not liable. Numerous cases have been decided upon the meaning of the word "workman " in the 4 Geo. lY. c. 34, s. 3 (y), (which is simi- lar to the Employers' and Workmen Act, 1875, s. 8), and in the Truck Act, 1 & 2 Will. IV. c. 37 (z). Probably the cases under the Truck Act do not give much assistance, as the statute is not re- ferred to in the present Act, and it was a penal not a remedial statute. [*94] *An omnibus conductor has been held not to be a " work- man " within the Employers' Liability Act, since he is not a person to whom the Employers' and Workmen Act, 1875, applies, " being neither a labourer," " journeyman," nor person otherwise engaged in manual labour (a). As to what is a " defect " within the meaning of this section, the cases in the note may be consulted (6). (g) See sect. 8. ()•) In the condition of the ways, works, machinery, or plant connected with or used in the business of the employer. (s) Or, in case of death, his representative, &c. {t) As to the meaning of these last words in Griffiths v. Dudley, supra ; and see infra. (u) He need not be a superintendent over the person injured. [x) Unless he was aware they knew of the defect. (y) Ex parte Ormerod, 1 Dowl. & L. 825 (designer an artiiicer) ; Ex parte Gordon, 25 L. J. M. C. 12 (tailor employed by the job); Ex parte Bailey. 23 L. J. M. C. 161 (collier, personal service); Lawrence o. Todd, 14 C. B. N. S. 554 ; 32 L. J. M. C. 238 (iron shipbuilder and six workmen) ; Davis v. Berwick, 30 L. J. M. C. 84 (account-keeper on a farm not a servant in husbandry) ; Bram- well V. Pennaok, 7B. & C. 536 (watcher under afi. fa. not a labourer); Hardy V. Ryle, ^ B. & C. 903 (silk weaver at home not a labourer) ; Ex parte Hughes, 23 L. J. M. C. 138 .(cook, dairymaid, and assisting at harvest work, servant in husbandry). (s) Riley v. Warden, 2 Ex. 59 ; 18 L. J. Ex. 120 (contractor under superior contractor not within Act) ; Sharman v. Sandars, 13 C. B. 166 ; 20 L. J. C. P. 99 (contractor employing others and sometimes working not within) ; Bowers V. Lovekin, 6 E. & B. 584 ; 25 L. J. Q. B. 371 (butty colliers, within ) ; Slee- mau V. Barrett, 2 H. & C. 934 ; 33 L. J. Ex. 153 (butty colliers, not within) ; Ingram v. Barnes, 7 E. & B. 115 ; 26 L. J. Q. B. 82 (labourer making bricks under written contract for a railway contract, no contract for personal work, not within). (a) Morgan v. London General Omnibus Co., 12 Q. B. D. 201. (6) McGiffin v. Palmer's Ship-building Co., 47 L. T. N. S. 346 ; 10 Q. B. D. 5 (something permanent in the condition of the way) ; Huxum v. Thomas, L. T. Jan. 28, 1882, p. 227, Q. B. D. ; Langham v. Young, L. T. July 30, 1881, p. (1686) THE employees' LIABILITY ACT, 1880. 63 " It has been contended," said Field, J., in McGiffiti v. Palmer's Co. (b), "that there is a difference between 'a way ' and ' the con- dition of a way,' and illustrations have been given to bear out this contention. The case has been put of a way perfectly well con- structed, but upon which on a frosty December morning water falls, so that it gets into a dangerous state. I cannot help thinking that that would be a defect in the condition of the way, because the way is the thing which people walk upon, and the thing itself is actually altered. Taking the case of machinery, there the absence of oil does not, it seems to me, affect the permanent condition of the thing itself (c). Here the defect is not in the way, the defect is that some person carelessly put something on the way which he ought not to have put there. This was an obstruction. In a grant of right of way if such a case were brought forward the declara- tion would not have been that the way was defective, but that it was obstructed. Actions are brought sometimes against railway companies for their stations being in a defective condition — out of *" repair — but if an, action were brought against a railway [*95] company for leaving a bucket on a dark night in a dark passage, surely it would not be alleged that this constituted a defect in the way. I cannot help thinking, therefore, that the construction to be put on sub-sect. 1 is that the defect must be something in the permanent, or quasi-permanent condition. Therefore without laying down any general rule, I think the present case does not fall within the section, and on this point the judgment will be re- versed." And Stephen, J., said, " A defect in the machinery would be the absence of some part of the machinery, or crack, or anything of that kind. A defect in the condition of the way, or works, or machinery, or plant, is certainly wider, but I do not think it very much wider. It means, I should be inclined to say, such a state of things that the power and quality of the subject to which the word ' condition ' is applied are for the time being altered in such a manner as to interfere with their use. For instance, if the way is made muddy by water, or if it is made slippery by ice, in either of these cases, I should say that the way itself is not defec- tive, but the condition of the way, by reason of the water which is incorporated with it, or from its being in a freezing state, is affected. 233 : Whitaker v. Balmforth, L. T. Sept. 10, 1881, p. 327 ; Topham v. Good- win,' L. T., Nov. 5, 18S1, p. 10 ; Heske v. Samuelson & Co., 12 Q B. D. 30 (condition of machine means condition with respect to purpose to which it is applied). (6) McGiffin v. Palmer's Ship-building Co., 47 L. T, N. S. 346 ; 10 Q. B. D, 5 (something permanent in the condition of the way) ; Huxam v. Thorns, L. T. .Tan. 28, 1882, p. 227, Q. B. D.; Langham v. Young, L. T. July 30, 1881, p. 233; Whitaker J). Balmforth, L. T. Sept. 10, 1881, p. 327; Topham i'. Good- win, L. T. Nov. 5, 1881, p. 10 ; Heske v. Samuelson & Co., 12 Q. B. D. 30 (con- dition of machine means condition with respect to purpose to which it is ap- plied). (c) Surely the absence of oil might very materially affect the condition of a machine and as permanently as ice would aifect a way. (1687) 64 DUTIES OF MASTEES. We are asked to go a step further, and Mr. Wills is obliged to con- tend that any obstruction whatever, although it did not alter the condition of the way in the sense which I have described, never- theless would amount to a defect in the condition of the way. That seems to me to lead to the use of language which would cer- tainly be very unnatural. Suppose, for instance, a drunken man staggering along the road, could that be called a defect in the con- dition of the- way? and, if not, would it make any difference if he were lying down dead drunk ? If such an obstruction is not a de- fect in the condition of the way, I do not see why a piece of tap should be. I do not think we ought to put so wide a construction [96*] on the words ' condition of the *way ' as to include obstacles lying upon the way, which obstacles do not in any degree alter the powers of the way, or alter its fitness for the purpose for which it is generally employed, and cannot be said to be incorporated with it. It seems to me, therefore, that the presence of this piece of tap on the road cannot be called a defect in the condition of the way." The concluding words of the section are very peculiar, viz., " that the workman shall have the same rights and remedies as if the workman had not been a workman, &c. " What rights and reme- dies are these ? Are they the same as a trespasser, or a person in- vited, or a volunteer ? The words can only mean that the defence that he is a fellow- servant is not to be raised (d), but he must be considered as a person employed for the mutual benefit of the em- ployer and himself towards whom the employer is bound to exer- . cise ordinary care. As to the meaning of the word machinery, see 41 Vict. c. 16, s. 6, Factory and Workshops Act, 1878. By sect. 1, sub-sect. 2, where personal injury is caused to a work- man by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him (e), the workman shall have the same right, &c. If the workman is aware of the negligence, and fails to give in- formation to the employer or some superior person, the employer is not liable. Sect. 2, sub-sect. 3 (/). [*97] *The meaning of the words "person who has any super- intendence entrusted to him " is explained by sect. 8 to mean " a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour." (d) See Griffiths v. Dudley, supra ; see per Cave, J., p. 365. (e) Whilst in the exercise of such superintendence. The effect of the word ' ' whilst ' ' cannot he that an employer should say the superintendent was professedly superintending, but, in fact, was doing something he ought not, as has been suggested : See Campbell's Fraser's Law of Master and Servant, p. 229. (/) Unless he was aware the employer or superior person already knew. Not giving information would be one sort of contributory negligence; but the workman may be guilty of contributory negligence in other ways notwithstand- ing the section ; Stewart v. Evans, L. R. W. N. June 2, 1883, p. 99. (1688) THE employers' LIABILITY ACT, 1880. 65 Shaffers and Jones were employed by the General Steam Naviga- tion Company loading a ship with sacks of corn. Jones had to guide the beam of the crane by means of a guy rope, and to give directions and warnings to the men as to hoisting and lowering the sasks. He neglected to use the guy rope, and some sacks fell and injured Shaffers, who was in the hold stowing the sacks. It was held that Jones was " ordinarily engaged in manual labour," and was not " a person who has superintendence intrusted to him " (gf). The plaintiff was employed as a bricklayer, and was at work on a building. Thomas, a foreman of the defendant, was supplying, as a volunteer, the place of another workman in removing a scaffold- ing, and handed a plank to a labourer, and called to him to take it, but it fell, owing to the negligence of Thomas. It was argued, on the authority of Shaffers v. Gen. Steam Nav. Co., supra, that Thomas was not acting " in the exercise of such superintendence," but it was held that he was (h).. By sect. 1, sub- sect. 3, where personal injury is caused to a work- man by reason of the negligence of any person *in the ser- [*98] vice of the employer to whose orders («) the workman at the time of the injury was bound to conform (fc), and did conform, where such injury resulted from his having so conformed, he can recover. If the workman is aware of the negligence, and fails to give in- formation to the employer or some superior person, the employer is not liable. (Sect. 2, sub-sect. 3.) The defendant company had made a rule that no boy should drive a van. A foreman in the employment of the defendants had ordered a boy to drive a van, and had offered him extra pay for doing so. The boy was thrown off and injured, and it was held that the foreman was not a person to whose orders the boy was, under the circumstances, bound to conform, as there was a rule to the contrary effect, and the foreman had offered the boy money (I). By sect. 1, sub-sect. 4, where personal injury is caused to a work- man by reason of the act (m) of any person in the service of the (g) Shaffers v. The Gen. Steam Nav. Co., 10 Q. B. D. 356. The judgments of the judg&s in the ahove ca.se throw no light upon the meaning of the words "superintendence" and "manual labour." See ante, p. 94, as to "manual labour. ' ' (A) Oshorn v. Jackson, 11 Q. B. D. 619. The distinction between the two cases seems very fine, and the words of the statute seem to be a mere trap to catch the unwary. Such explanation as can be given of these two cases would seem to be that in the former case Jones had a separate and distinct duty, for which he was paid, and in which he failed, viz., to guide the rope; but in the latter case Thomas had only the one duty of superintendence, and it must be taken that carelessly handing the plank was a breach of that duty. (?) Or directions. Ik) Laming v. Webb, L. T. Feb. 4, 1882, p. 247. It was suggested in the course of the debate on the bill in the House of Lords that a hodman would be bound to conform to the orders of a bricklayer. h) Bunker v. Mid. Ky. Co., 47 L. T. 476. (m) Or omission. 5 LAW OF NEG. (16S9) 66 DUTIES OF MASTERS. employer, done in obedience to the rules (n) of the employer (o), the workman shall have the same right, &c. Provided (sect. 2, sub-sect. 2) that if such injury arose from some defect, &c., in rules, &c., which are unapproved of, the em- ployer will be liable, but if from some defect in rules, &c., which have been approved by authority, he will not be liable. The questions under this section would seem to be (1), was the act of his fellow servant which produced the injury to the workman [*99] done in obedience to rules or bye-laws of *the employer, or to particular instructions of the employer or his delegates ? If it was in obedience to rules or bye laws of the employer the next question would be (2), were such rules or bye-laws approved or accepted by the authorities mentioned in sect. 2, siib-sect. 2 ? If they were so approved or accepted, or if the act was done in obedience to parti- cular instructions of the employer or his delegates, the question would be (3), were such rules or bye-laws or stich particular instruc- tions improper or defective ? By sect. 1, sub-sect. 5, where personal injury is caused to a work- man (p) by reason of the negligence of any person in the service of the employer who has the charge of any train (g), he can recover. If the workman is aware of such negligence, and fails to give information to his employer or some superior person (r), the employer is not liable. (Sect. 2, sub-sect. 3.) A capstan man who could move trucks was held to be in charge of a train (s), and "trucks" were said to be a train, although no locomotive was attached (t). A man whose duty it was to adjust the points and wires of the locking apparatus, and to do repairs under the orders of an inspector, who himself inspected the appa- ratus to see that the work was properly done, was held not to be a person having " charge or control " of the points (u). The word "railway" includes a temporary railway used in the construction [*100] *of a permanent one (as), and also includes a siding or goods station (y). The widow is, as we have seen, debarred from sueing where the husband has contracted himself out of the Act (z). (n) Or bye-laws. (o) Or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf. (p) By Sect. 8 workman means railway servant. (q) Charge or control of any signal, points, locomotive engine, or traini upon a railway. (?•) Unless he is aware they knew of it. (s) Cox V. G. W. Ey. Co., 9 Q. B. D. 107. (t) Cox V. G. W. Ry. Co., supra. It would rather seem that one truck could not be a "train," and it is even possible that two might not be considered a "train." (») Gibbs V. G. W. Ry. Co., L. E. W. N. May 5, 1883, p. 83 ; 48 L. T. N. S. 640 ; 12, Q. B. D, 208. (x) Doughty V. Fairbank, 10 Q. B. D. 358. (y) Cox I'. G. W. Ry. Co., supra. (z) Griffiths v. Dudley, supra. (1690) TUE employers' LIABILITY ACT, 1880. G7 As. has been noticed in note (/), ante, p. 90, the fact that the statute requires the plaintifp to give notice of defects does not pre- ■vent the employer from setting up some other form of contributory negligence on the part of the workman as a defence to his claim (a). Sect. 2. "A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases; that is to say, "(1) Under sub sect. 1 of sect. 1, unless the defect therein men- tioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition (b). '• (2) Under sub-sect. 4 of sect. 1, unless the injury resulted from some impropriety or defect in the rules, bye-laws, or in- structions therein mentioned ; provided that where a rule or bye-law has been approved or has been aecepted as a proper rule or bye-law by one of Her Majesty's Principal Secretaries of State, or by the Board of Trade or any other department of the Government, under or by virtue of any Act of Parliament, it shall not be deemed for the pur- poses of this Act to be an improper or defective rule or bye-law (c). *"(3) In any case where the workman knew of the [*101] defect or negligence which caused his injury, and failed within a reasonable time to give, or, cause to be given, in- formation thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence" (d). The words of this section are "some person superior to himself in the service of the employer." I suppose a bricklayer is superior to a hodman, but if a hodman reported to a bricklayer would that be sufficient to render the builder liable; ought he not to report to a foreman, or person to whom the builder has delegated his duties? Sect. 3. " The amount of compensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the estimated earnings, during the three years preceeding the in- jury, of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury." This section may be regarded as a rough and ready mode of stop- ping the indiscretion of some juries. It was found in practice that in ordinary cases juries found three years' wages as compensation, (a) Stuart v. Evans, L. R. W. N. June 2, 1883, p. 99. (6) This sub-section has been discussed, ante, p. 93. (c) This sab-section has been discussed, ante, p. 98. (d) See ante, p. 96, note (/). (16911 68 DUTIES OF MASTERS. and this has been taken as the limit under the Act. It is presumed that the old rules as to estimating the damages still remain, so that bodily sufifering is a head of damage just as much as loss of wages. Sect. 4. "An action for the recovery under this Act of compen- sation for an injury shall not be maintainable unless notice that in- jury has been sustained is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death, Provided always, that in case of death the [*102] want of *such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reason- able excuse for such want of notice." This section requires notice to be given within six weeks from the injury. If such notice is not given then at the end of six weeks from the injury no action can be brought, even if the injuries have been dormant or have materially increased (d). Possibly such cases may be rare, but they might well be provided for. * In case of death notice must be given within six weeks from the injury, unless the jadge thinks there is a reasonable excuse; so that if a man has been injured and has not given notice he loses his remedy, but if he dies in the seventh week from the injury his representatives can recover if a judge thinks fit. Secondly, the section requires an action to be begun within six months from the injury; but if the man dies, then twelve months from the death. Therefore, if a plaintiff gave notice within six weeks and did not commence an action till after six months, he would lose his right of action; but if he then died from his injury in the seventh month, I presume his rights would revive, and his representatives might commence an action twelve months afterwards. There seems to be no sufficient reason for such com- plicated provisions. A section providing for a six weeks' notice and six month's writ, unless the judge should be of opinion that there was a reasonable excuse for not giving the notice or bringing the action within the time, would probably suffice. What is a rea- sonable excuse is left to the discretion of the judge, and each case will therefore depend upon its own especial facts (e). The notice must be in writing, for this section must be read with sect. 7 (/)._ [*10£i] *It is of no consequence that knowledge is brought home to the defendant or that he was present at the accident or gave money, &c. to the plaintiff after the injury was inflicted (g). The notice in writing must be in accordance with sect. 7. "Where the letter which was relied upon as a notice spoke of " injuries received at your dock, (d) Unless in case of death. See infra. (e) Macey v. Hodson, L. T. Dec. 24, 1881, p. 140 (defendant promised com- pensation three times — held, no excuse). (/) Movie V. Jenkins, 8 Q. B. D. 116; Keen v. Millwall Dock Co.,8 Q. B. D. 483; Adams v. Nightingale, L. T. April 15, 1882, p. 424. ((/) See the cases, supra. (1692) THE employers' liability act, 1880. 69 particulars of which have already been communicated to your super- intendent," Lord Coleridge (ft) said : "It has been argued that a notice to satisfy this enactment can be made by a reference in it to some other document. In my opinion it cannot. If the letter re- lied on in this case had referred to some written document in which the nature and particulars of the injmy were given, it would not, I should have thought, have been a compliance with the words of this enactment, which describe the notice as one and single, containing in it the incidents which the statute has required it to contain as a condition precedent to maintaining any action. This, however, is only my own opinion, and the point is one which it is not necessary to determine in the present case, as we are all agreed that the letter of the plaintiff's solicitor which is here relied on does not incorporate with it, or refer to any written document, and is clearly not a notice in compliance with the requisites of the Act." Brett, L. J., said : "I agree that as a general rule the notice must be given in one notice, but I am not prepared to say that it would be fatal if it were contained in more than one notice. Suppose, for example, a person in his letter written on one day should describe fully the injury he had sustained, but should leave out his address, and Ife should the next day send a letter stating that in the letter I wrote yesterday I omitted to give you my address, and I now give it. If both these letters were written in *time, and both served on the em- [*104] ployer, I am not prepared to say that the last might not be taken to incorporate the first, and therefore, though not an accurate but an informal notice, it might be considered a notice within the mean- ing of a statute. If in the present case the letter of Mr. Bradley had referred to a written report, and to the date and particulars there given of the injury, I should not at this stage have said that there had not been a notice within the Act, but should have desired a rule in order that the matter might be more fully discussed. The letter, however, only refers to a statement in words supposed to have been given by the plaintiff to the defendant's inspector, and not to a statement made in writing, and is therefore not a notice within the Act, which in order to be such must, I agree, contain oil the circumstances in writing." Holker, L. J., said : "I agree with my Lord, and on the same grounds which he has given, that there was no sufficient notice in this case. But I cannot say that a good notice might not be made out by one written document referring to another." It has been held that the notice need not particularly describe the cause of the injury, but it is sufficient if it states " in ordinary language the cause of the injury and the date at which it was sus- tained," and therefore the words " for injury to his leg" was held sufficient (ft). It is perhaps singular that the judgments do not notice that no cause of injury is mentioned at all in ordinary lan- (h) Keen v. Millwall Dock Co., supra, {h) Stone v. Hyde, 9 Q. B. D. 76. (1G93) 70 DUTIES OF MASTERS. guage or otherwise. The cause of action is probably roughly in- dicated by tbe words "injury to his leg." The cause of ivjury was the fall of a beam, &c., the bui-sting of an engine, &c., but there is no mention whatever of any cause. The words of the Act should have been notice "of the injury and the cause thereof." [*105] In a subsequent case, the notice was that the plaintiff *" was injured in consequence of your negligence in leaving a certain hoist unprotected, whereby," &c., the jury found that the negligence was in allowing the plaintiff to go alone on the hoist, but there was no negligence in leaving the hoist unprotected, and it was held that the notice was sufficient, as it sufficiently stated the " cause of in- jury," though not the "cause of action." Field, J., said, "In de- termining whether the notice is good or not, the Court cannot enter into the question of proximate or remote cause. It is not necessary to state the cause of action, but only that which will enable the em- ployer to have substantial notice of what has occurred, so that he may make proper inquiries, and may come to trial prepared to meet the plaintiff's case." Cave, J., pointed out that the cause of injury was that the space between the cage of the hoist and the wall was left unprotetted. The jury came to the conclusion that there was no negligence in leaving that space unprotected, because it was the duty of the mistress always to go with a child sent in the hoist {i). Sect. 5. " There shall be deducted from any compensation awarded to any V70rkman, or representatives of a workman, or persons claim- ing by, under, or through a workman in respect of any cause of action arising under this Act, any penalty or part of a penalty which may have been paid in pursuance of any other Act of Parliament to such workman, representatives, or persons in respect of the same cause of action; and where an action has been brought under this Act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman, for compen- sation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action, such workman, representatives, or person shall be [*106] entitled thereafter to *receive any penalty or part of a penalty under any other Act of Parliament in respect of the game cause of action." Sect. 6. — "(1.) Every action for recovery of compensation under this Act shall be brought in a county court, but may, upon the ap- plication of either plaintiff or defendant, be removed into a superior court in like manner and upon same conditions as an action com- menced in a county court may by law be removed. "(2.) Upon the trial of such action in a county court before the judge without a jury one or more assessors may be appointed for the purpose of ascertaining the amount of compensation. (i) Clarkson -c. Musgraves, 9 Q. B. D. 386. (1694) THE employers' LIABILITY ACT, 1880. 71 "(3.) For the purpose of regulating the conditions and mode of appointment and remuneration of such assessors, and all matters of procedure relating to their duties, and also for the purpose of con- solidating any actions under this Act in a county court, and other- wise preventing multiplicity of such actions, rules and regulations may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procedure in other actions. in county courts. '"County court' shall, with respect to Scotland, mean the 'Sher- iff's Court,' and shall, with respect to Ireland, mean the ' Civil Bill Court.' " In Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in the manner pro- vided by, and subject to the conditions prescribed by, section 9 of the Sheriff Courts (Scotland) Act, 1877. "In Scotland the sherifp may conjoin actions arising out of the same occuiTence or cause of action, though at the instance of dif- ferent parties and in respect of different injuries." The manner in which and the conditions on which an action may be removed in a county court to a superior court, are to be found in 9 & 10 Vict. c. 95, s. 90; 19 & 20 *Vict. c. 108, s. 38; 28 & [*107] 29 Vict. c. 99, s. 39. Actions may also be removed by certiorari {k). Sect. 7. "Notice in respect of an injury under this Act stall give the name and address of the person injured, and shall state in ordi- nary language the cause of the injury and the date at which it was sustained, and shall be served on the employer, or, if there is more than one employer, upon one of such employers. "The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. "The notice may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business; and, if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post ; and, in proving the service of such notice, it shall be pufficient to prove that the notice was properly addressed and registered. " Where the employer is a body of persons corporate or unincor- porate the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or, if there be more than one office, any one of the offices of such body. "A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the judge who tries the (fc) See County Court Practice by Pitt-Lewis, p. 171 et seq. An application for a certiorari was refused in one case on the ground that if it were granted most cases under the Employer's Liability Act would be removed. Munday v. Thames Ironworks Co., 10 Q. B. D. 59— Denman v. Manisty, JJ.; 47 L. T. N. S. 351. (1695) 72 DUTIES OP MASTERS. action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading." [*108] *This section must be read with sect. 4, ante, p. 101. "A notice under the Act must be delivered in such a manner that it is reasonable to expect that it will come to the defendant's knowl- edge in the ordinary course of business." Therefore, a notice left at the place of business after business hours, not in the letter box, but in a box used by the foreman, is not properly served (I). The section states that notice may be served by delivering the same to or at the residence, &c., and in another paragraph "the notice may be served by post by a registered letter." At first sight this looks as if service by post must be by registered letter; but the probable meaning is that notice may be served in the ordinary way, but if served by registered letter, proof of service is simplified. The concluding paragraph of the above section says that the notice shall not be deemed invalid by reason of " any defect or in- accuracy" therein, unless the judge who tries the case is of opinion that the defendant is prejudiced, and that the defect or inaccuracy was for the purpose of misleading. The omission of the date al- together was held to be a "defect or inaccuracy" within the sea- tion (m). Sect. 8. "For the purposes of this Act, unless the context other- wise requires, — " The expression ' person who has superintendence entrusted to him' means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour : " The expression ' employer ' includes a body of persons corporate or unincorporate : "The expression 'workman' means a railway servant and any person to whom the Employers and Workmen Act, 1875, ap- plies" (n). [*109] *Section VII. Duties of Servants. The question how far servants, as such, are liable to third parties is somewhat obscure. Practically it does not often arise, because if the servant is negligent the master is responsible, and the injured party will obtain a more satisfactory remedy against the master than against the servant. It is said that the servant is not liable for acta (l) Adams v. Nightingale, supra; L. T. April 15, 1882, p. 424. m) Carter v. Drysdale, 12 Q. B. D. 91. n) This section has been discussed, ante, pp. 91, 93. (1696) DUTIES OF SERVANTS. 73 of . nonfeasance or ommission, but only for acts of misfeasance (o). Probably the difaculty will disappear if the nature of the duty in cumbent upon the servant be considered. If the master has agreed with the third party to perform a certain duty, and the servant omits to perform that duty, the third party complains of the breach of contract by the master to which the servant is no party, and there is no duty upon the servant to perform the contract ; but if there be a duty upon a master to see that his carriage is driven properly (p), and a duty on a servant to drive it properly so as not to injure a third party, such third party may complain of the breach of either duty. It is said that one servant cannot maintain an action against another in a common employment (q). If the negligence of the fellow-servant be one of the risks which the plaintiff undertook he cannot recover; but unless such be the case there seems to be no good reason why one servant should not recover against another for negligence. As a general rule it seems that the person who actually inflicts the injury (whether he be the servant of another or not), is always himself responsible. The master who commands* a trespass, [*110] and the servant who commits it, are responsible jointly for dam- ages (r). A servant who merely hires labourers for his master is not re- sponsible for their negligence. Either the labourer does the negli- gent act, or the master, or both, may be sued, but not the servant who hired (s). But a clerk who directs workmen, or a contractor who employs them, is liable (t). Section VIII. Neglect of Duties of Public Officers. Public officers are, as we shall see, in general bound to exercise more than ordinary care in the discharge of their duties (u), and all that is necessary to notice here is that a sheriff in relation to the owner of the goods seized by him, is nothing more than a mere bailee, and is not bound to exercise more than ordinary care of them, so far as such owner is concerned ; but with regard to the person em- ploying him to seize, we shall see that he is bound to exercise a high degree of care (u). (o) Macdonnell on Master and Servant, p. 254. (p) Hutchinson v. York, Newcastle & Berwick Ry. Co., 5 Exch. 350. (g) Abbro v. Jaquith, 4 Gray, 99 ; Southcote v. Stanley, 1 H. & N. 250, per Pollock, C. B. (r) Bates i). Billing, 6 B. & C. 38. (sj Stone V. Cartwright, 6 T. E. 411 ; Wilson v. Peto, 6 Moore, 47. (t) Wilson V. Peto, supra. (u) Post, Ch. III., 8. 14. (1697) 74 TRUSTEES. [*111] *Section IX. Neglect of Duties by Trustees. The Courts appear from the time of Richard the Second to have exercised a jurisdiction over trustees, compelling them to account to their cestui que trusts for their management of the trust estate {y). A trust was defined to be "A confidence reposed in some other, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the person touching the land, for which cestui que trust has no remedy but by subpoena in Chancery" (z). In. truth, a trust was not recognized in the com- mon law courts, and there appears to be no instance of a common law action against trustees for negligence (a). And by the Judi- cature Act, 1873, s. 34 (3), the execution of trusts, charitable or private, is assigned to the Chancery Division of the High Court. It is, since the Judicature Acts, of no importance what the old form of action would have been, and under the new procedure the facts would, sooner or later, show a neglect of duty in the execution of the trust which would be a matter for investigation in the Chan- cery Division. I have had great difficulty in deciding whether I ought not to place " trustees " amongst those persons who are bound to exercise something more than ordinary care. A trustee undertakes a serious responsibility, but often a very irksome one, from which he de- [*112] rives no reward or *advantage whatever, and upon the whole, it should seem that ordinary care is expected of a trustee, or perhaps it is better to say, that amount of care which his fiduciary position demands, for he appears to stand in a peculiar situation. Trustees often undertake their duties unwillingly, although they do so voluntarily, and though they derive no benefit, yet if they voluntarily undertake grave responsibilities, they cannot complain if they are held bound to perform them. It has been often said that a trustee must exercise the same care on behalf of his cestui que trust as he would exercise for himself, and not any greater care (6). This has been improved upon by saying the same amount of care that " an ordinary prudent man of business" would use in his own afi^airs (c), and this Mr. Wharton (y) See Lewin on Trusts, 7th ed., p. 1. (z) Co. Litt. 2721). (a) Sometimes an attempt was made to make a trustee liable in assumpsit at common law ( Jevon c. Bush, 1 Vern. 344 ; Smith v. Jameson, ,'5 T; R. 603) ; but the attemjit was abandoned : see Barnadiston v. Soame, 7 State Trials, 443; Sturt ?). Mellish, 2 Atk. 612; and see as, to executors not being bailees at common law, Crosse v. Smith, 7 East, 246; and as to actions for specific legacies after assent, Williams on Executors, 7th ed. 1933. (b) Morley v. Morley, 2 Ch. C. 2; Bridge v. Gummon, L. E. 7 Ch. 720; Att.- Gen. V. Dixie, 13 Ves. .534. (e) Speight v. Gaunt, 22 Ch. D. ^er Jessel, M. R., p. 7,39, ;)cr Eord Black- burn, 9 App. Cas. p. 19, post; In re Godfrey, L. R. W. N. June 2, 1883, p. 98. (1698) TRUSTEES. 75 would farther amend by saying the same amount of care which a diligent paterfamilias would use (d). It is said by Mr. Justice Story (e) that " a trustee is bound to perform all acts which are neccessary for the proper execution of his trust. But, by the English rule, as he is not allowed compensation for his services, he would stand in. the postion of a gratuitous bailee, and be responsible only for losses or improper execution of his trust in cases of gross negligence;" upon which Lord Justice Brett remarks that in this passage " gross negligence is the neglect of taking the same care which a person of ordinary prudence and skill would take of his own affairs" (/). ''I think," said Jessel, M. R., "in modern times the Courts have not distinguiohed between assignees (in bankruptcy), executors, and trustees; but they have put them *all together and con- [*113] sidered that they are all liable upon the same principles" (g), that is, that they are all bound to exercise ordinary care. In this treatise, questions of breaches of trust will not be dis- cussed, for they are not a part of our subject. It should, however, be borne in mind that the Courts of Chancery have very frequently regarded with great strictness the execution of duties devolving upon trustees. It may be that negligence, which would give a right of action against a trustee, will not be ground for an action for breach of trust, and it is of course clear that a breach of trust may not be and generally is not a negligent but a wilful, act. When, therefore, in a case decided in a Court of Chancery, we find the judge speaking of the negligence of a trustee we must bear in mind that he is perhaps only speaking of that neglect which amounts to a breach of trust, but not such negligence as would afford a ground for an action for damages for negligence. A trustee cannot be made liable for neglectiog to perform a trust of which he was ignorant {h). The principal duties of trustees in respect of the breach of which negligence may be charged against the trustee are: (1) the reduc- ing the property into possession within a reasonable time, (2) the safe custody of it, (3) the proper investinent of it, and (4) the distribution of it. (1) Trustees must not delay in acquiring possession of the property of the trust {i). Executors are in the same position as trustees, and must get in the estate within such time as the Court under all the circumstaoces shall t hink Reasonable {k) [*114] (d) Wharton on Negligence, s. 518. (e) Story on Contracts, s. 297. (/) Wilsons. Lord Bury, 5 Q. B. D. p. 528. \g) Speight v. Gaunt, 2.2 Ch. D. 742 ; 9 App. Cas. 2. [h) Youde V. Cloud, L. R. 18 Eq. 634. (i) Jacob V. Luca-s, 1 Bea. 436; Caffrey v. Darby, 6 Ves, 488; Jones v. Hig- gins, L. R. 2 Eq. i)38; Ex parte Ogle, L. R. H Ch. 711 (goods left with a bank- rupt); Stone ti. Stone, L. R. 5 Ch. 74; and Westmoreland «. Holland, W. N. 1871, p. 124 (marriage settlements). {k) See a number of cases collected in Lewin on Trusts, 7th ed. p. 265 el seq. 0699) 76 TKUSTEES/ And trustees and executors must see that the property is converted from bad or indifferent security into good security, and such as is indicated by the terms of the will or trust (k). (2) A trustee ought not to allow his co-trustee to retain money in his hands for a longer time than is reasonable (I), or allow it to remain at a bankers instead of investing (m). As to the mode of carefully keeping securities and money, see Lewin on Trusts, pp. 271, 272. It seems to have been held that if trustees were defrauded the loss would fall upon them, and not upon the cestuis que trust; and if their solicitor was negligent, they were answerable for not em- ploying a proper person, and his negligent acts were theirs (n). So, if the trustee was deprived of some of the trust property by a forgery, the trustee was answerable for the loss (o). The above cases {p) are not overruled, but they are much shaken, by a very recent decision in the Court of Appeal, and it would ap- pear that the old law before the above decisions {q) was in accordance with the most recent case. The 22 & 23 Vict. c. 35, s. 31, also pro- vides for the exoneration of trustees from liability for the acts of " any banker, broker, or other person with whom any trust moneys [*li5] or securities may be deposited," and "for any *insu£S.ciency or deficiency of any stocks, funds, or securities, or for any other loss, unless the same shall happen through their own wilful default respectively. The law has recently been very fully and elaborately stated in the case of Speight v. Gaunt (r). The Master of the Rolls (Jessel), in the course of his judgment, said : — " In the first place, I think we ought to consider what is the lia- bility of a trustee who undertakes an office which requires him to make am investment on behalf of his cestui que trust. It seems to me that on general principals a trustee ought to conduct the busi- ness of the trust in the same manner that an ordinary prudent man of business would conduct his own, and that beyond that there is no liability or obligation on the trustee. In other words, a trustee is not bound, because he is a trustee, to conduct business in other than the ordinary and usual way in which similar business is con- 'k) See a numTier of cases collected in Lewin on Trusts, 7th ed. p. 265 et scq. ,1) Brice v. Stokes, 11 Ves. 319; Gregory v. Gregory, 2 Y. & C. 313; Thomp- son V. Finch, 22 Bea. 316; Mendes v. Guedalla, 2 Johns. & Hem. 259. (m) Moyle v. Moyle, 2 R. & M. 710; .Johnson v. Newton, 11 Hare, 160; Darke v. Martyns, 1 Bea. 525; Swiufen v. Swlufen (No. 5), 29 Bea. 211; Eeh- den V. Wesley, 29 Bea. 213. (») Hopgood V. Parkin, L. R. 11 Eq. 74, 79; Sutton w. Wilders, L. R. 12 Eq. 373; Bostook v. Flnyer, L. E. 1 Eq. 26. See also per Selbome, L. C, in Speight V. Gaunt, 9 App. Cas. p. 11. (o) Eaves !). Hickson, 30 Bea. 136; Midland Ry. Co. v. Taylor, 8 H. L. C. 751. (p) Sutton u. Wilders was not mentioned in the judgment in Speight v. Gaunt, infra. (q) Lewin on Trusts,' p. 271; Exparte Bellhier, Arab. 218. (r) Speight V. Gaunt, 22 Ch. D. 727 ; 9 App. Cas. 2. (1700) TRUSTEES. ducted by mankind in transactions of their own. It never could be reasonable to make a trustee adopt further and better precautions than an ordinaiy prudent man of business would adopt, or to con- duct the business in any other way. If if were otherwise, no one would be a trustee at all. He is not paid for it. He says, ' I take all reasonable precautions, and all the precautions which are deemed reasonable by prudent men of business, and beyond that I am not required to go (s). If, therefore, a trustee has made a proper selection of a broker, and has paid him the money on the bought- note, and, by reason of the default of the broker the money is lost, it does not appear to me in that case that the trustee can be liable ({). My view has always been this, that where you have an honest trustee, fairly anxious to perform his duty, and to do as he thinks best for the estate, you are not to strain the law against him to make hini liable for doing that which he has done, and which he believes is right in *the execution of his duty, without you have a [*116] plain case made against him. In other words, you are not to exer- cise your ingenuity for the purpose of finding reasons for fixing a trustee with liability ; but^you are rather to avoid all such hyper- criticism of documents and acts, and give the trustee the benefit of any doubt or ambiguity which may appear in any document, so as to relieve him from the liability with which it is sought to fix him. I think it is the duty of the Court in these cases where there is a question of nicety as to construction or otherwise to lean to the side of the honest trustee, and not to be anxious to find fine and extraordinary reasons for fixing him with any liability upon the contract. You are to endeavor as far as possible, having regard to the whole transaction, to avoid making an honest man who is not paid for the performance of an unthankful office liable from the the failure of other people from whom he receives no benefit. I think that is the view which has been taken by modern judges, and some of the older cases in which a different view has been taken would now be repudiated with indignation " (u). Lord Justice Lindley said : — "A trustee has no business to cast upon brokers or solicitors or anybody else the duty of performing those trusts and exercising that judgment and discreation which he is bound to perform and exercise himself. On the other hand, a trustee is not bound to do everything himself. A trustee is entitled to employ brokers and solicitors to do that which in the ordinary course of business other people would employ brokers and solicitors to do. The real importance of this case is, that it lies between these two propositions — that a trustee cannot delegate his trust, and that, on the other hand, he is entitled to employ persons to do that which an ordinary man of business would employ an agent to do " (x). And again he says ; — "I wish most emphatically to say that (s) At p. 739. m At p. 741. («) At p. 746. - (x) At p. 756. (1701) 78 TRUSTEES. [*117] if trustees are *justifi.pd by the ordinary course of business in employing agents, and they do employ agents in good repute, and whose fitness they have no reason to doubt, and employ those agents to do that which'is in the ordinary course of their business, I protest against the notion that the trustees guarantee the solvency or honesty of the agents employed. Such a doctrine would make it impossible for any man to have anything to do with a trust" {y). It will be observed, that the learned judges were careful to re- quire of the trustee that he should .exercise ordinary care (at the least) in selecting his broker, and there is no doubt, also, that he must exercise ordinary care in looking after the broker whom he employs and the property over which he exercises control {z). One trustee ought not to allow his co-trustee to have possession of the trust funds so as to enable him to dispose of them for his own benefit, and such trustee is liable for the illegal act of his co- trustee (a). In Mendes v. Guedalla (6) two trustees had committed a box to a third trustee (a stockbroker) to enable him to convert the securi- ties into others, and it was held to be the duty of the two trustees to ascertain, when the box was returned to the bankers, that the new securities were safe in it. The Lord Chancellor said: — "I cannot for a moment adopt the argument in support of which so many authorities were cited, that a trustee is not liable for the tort of his co-trustee (c). Of course he is not liable if he takes proper pre- cautions within reasonable time to ascertain what his co-trustee has [*118] done with the property, and *takes proper steps to recover any that has been made away with. But here nothing of the kind was done. The matter was allowed to sleep without any attempt to ascertain that the trust property was secure . . . Knowing that a new fund was to be acquired he (the trustee) must have known it to be his duty, in the exercise of that ordinary prudence which a man uses in his own affairs, to see that such new fund had been actually acquired. No man of ordinary prudence, who has intrusted his broker to buy stock for him, would trust merely to the broker's statement, and omit to take any steps to ascertain whether the stock has actually been bought. At least a person who did so would not be a man of ordinary prudence in the sense in which this Court understands the term." (3) It is improper for a trustee to lend money on personal secur ity {y) At p. 7G2. (z) See judgment of Lord Fitzgerald in Speight v. Gaunt, 9 App. Cas. 28; the Lord Chancellor, p. ,'5. {a) Lewis v. Nobbs, 8 Ch. D. 591. See, however, Butler v. Butler, 7 Ch D 116. (J) Mendes v. Guedalla, 2 Johns. & Hem. 259. See remarks of Lindley, L. J., on this case in Speight?;. Gaunt, supra. (e) How far a trustee is liable for the tortious act of his ca-trustee is not a question of negligence "Inerely, but one of agency generally. (1702) TRUSTEES. 79 (d) unless he is very expressly authorized to do so (e) ; but in gen- eral the question of what a trustee may invest in is one of construc- tion of the trust deed or of Acts enabling trustees to invest (f). A trustee, even where the investment of the fund is left in his absolute discretion, must invest in permanent securities, and not in such as pay a high rate for a short time and are then paid off at a lower price (gr). *It is also imprudent for a trustee to take a second mort- [*119] gage Qi). Trustees must not retain money in their own hands which by the trust they ought to invest strictly in public funds alone (i), and if they do they may be liable either to find the money or the amount of stock which they ought to have purchased; but where there is any option as to investments then they are only liable for principal and inter-est and not for stock which they might have purchased (fc). A trustee cannot lend trust money upon mortgage upon a valua- tion made by or on behalf of the mortgagor, and ought to employ a valuer upon his own behalf (l), and if trustees are directed to purchase real estate, they must have it valued and see that the title is good (m). Where trustees send a London surveyor to value an hotel in the country, and on his advice, without any further inquiry, although the nature of the advice given should have led them to make some, advanced money on mortgage of the liotel, and the hotel turned out to be of less value than the money advanced, though the valuer had valued it at double that sum, the trustee was held ac- countable for the money (n). As a general rule, if trustees be guilty of unreasonable delay in (d) Atlver. Feuilleteau, 1 Cox, 24; Darke v. Martyn, 1 Bea. 525; Keble v. Thompson, 3 B. C. C. 112; Clough t). Bond, 3 M. & Cr. 496; Pocock r. Redding- ton, 5 Ves. 79!J; Watts v. Girdlestone, 6 Bea. 183; Graves v. Strahan, 8 DeGex, M. & G. 291. (e) Forbes v. Ross, 2 B. C. C. 430; Paddon v. Richardson, 7 De G. M. & G. •,563; Pococki). Reddington, 5 Ves. 799; Bethell v. Abraham, L. R. 17 Eq. 24 (American funds and stocks). See Pickard v. Anderson, L. R. 13 Eq. 608; Boss V. Godsall, 1 Y. & C. C. C. 617 (option to refuse to invest on personal security); but .see Cadogan v. Essex, 2 Drew. 227; Beauclark r. Ashburnham. 8 Bea. 322; Langaton v. OUivant, G. Coop. 33 (trust money lent to a trader). (/) See Levvin oa Trusts, p. 281 et seq. ; Lewis v. Nobbs, 8 Ch. D. 591. Sell- ing out of the three per cents, and investiuf; in a stock mortgage is not justified by the usnal powers to vary securities: Whitney v. Smith, L. R. 4 Ch. 513. (g) Stewart v. Sanderson, L. R. 10 Eq. 26. (A) See Lewin on Trusts, p. 302. (i) Shepherd v. Mouls, 4 Hare, .504. Ik) Robinson v. Robinson, 1 De G. M. & G. 256. See further as to ca.ses where the Court will make the trustee pay up what the money would have amounted to if properly invested. Lewin on Trusts, p. 308 et seq. (I) Ingle V. Partridge, 34 Bea. 412. (m) Eastern Counties Ry. Co., 5 H. L. C. 363; Exparte Governors of Christ's Hospital, 2 H. & M. 168. It is said that they should never purchase without getting the legal estate. Lewin on Trusts, p. 456. (n) Rudge v. Gummow, L. R. 7 Ch. 719; Campkin v. Barton, W. N. June 16, 1883, p. 110. (1703) 80 TRUSTEES. investing or transferring the funds, they will be liable for interest and costs (o). [*120] (4) The trustee ought to satisfy himself beyond doubt be- fore he parts with the trust money who are the parties really enti- tled to it ( p), and he will be held liable to any party who can es- tablish a better claim than the one to whom he paid over the money (g), even if he acted on the advice of counsel (r). He is not, how- ever, chargeable with interest if he made a bond fide mistake (s). (o) Le-win on Trusts, p. 310. (p) Lewin on Trusts, p. 316. In case of doubt he should apply to the Court under the Trustees Relief Acts. (g) Ex parte Norris, L. R. 4 Ch. 280. Ir) Doyle v. Blake, 2 Sch. & Lef. 243. (g) Sal'tmarsh v. Barret, 31 L. J. Ch. 783. (1704) (81) *CHAPTER III. [*121] ^^EGLECT OF DUTIES REQUIRING MORE THAN ORDINARY CARE. Section I. We proceed now to the investigation of those classes of cases where the law demands something more than ordinary care. We have seen (a) that the law demands this sort of care where a per- son is acting for his own benefit alone, or professes to have greater skill, or where a higher degree, of duty has been undertaken, or where the law deems it for the public benefit to require a greater amount of care. Amongst ordinary duties requiring no particular skill or care per se, and yet requiring the greatest, by reason of their performance being for the sole benefit of the performer, are — Gratuitous loan or commodatum in the case of the Bailee. Where a man lends an • other something, not desiring any return for it, he may justly expect that great care wUl be taken of the thing lent by the -person to whom he lends it (6). The bailor, on the other hand, is not bound (as we shall presently see, post Ch. IV. ) to take great care that the thing which he lends is not hurtful to the person to whom it is lent. *The bailee is the person benefited by the loan, and the [*122] bailor has a right to demand from him something more than ordinary care. This is one of the principles derived by our law from the Roman law, and which has already been mentioned, ante, p. 11. "The borrower is bound," says Holt, C. J., "to use the strictest care and diligence to keep the goods, so as to restore them back again to the lender; because the bailee has a benefit by the use of them; so that if the bailee be guilty of the least neglect, he will be answerable; as if a man should lend another a horse to go westward and the bailee go northward, if any accident happen to the horse on the northern journey, the bailee will be chargeable (6). So, also, wherever a person does something for his own advantage, he must take something more than ordinary care to avoid injuring the rights of another. Thus, a person occupying property is bound, (a) Ante, Ch. I., p. 11. (b) Coggs V. Bernard, 2 Raym. 916 ; Addison on Contracts (8th ed.) 350. (6) Coggs V. Bernard, 2 Raym. 915. 6 LAW OP NEG. (1705) 82 MORE THAN ORDINARY CARE. as we shall see (c), to take care that he deals with it so as not to injure persons being where they have a right to be (d). Persons who take money for admission to public places, stands at races, &c., are bound -for many reasons to exercise great care; for, firstly, there is great obvious danger in the fact that a crowd will probably be attracted to the place, and they have therefore under- taken a duty demanding great care; and it is, secondly, a thing done mostly for the benefit of the owner; and, thirdly, it is the duty of persons who invite the public into such places to see that they are safe (e). Nor can such persons shift their responsibility by saying [*123] that they employed a competent *contractor, for the duty is of a positive kind, and cannot be delegated (/). There is, as we have said (g), in every invitation a sort of implied warranty of safety, by which the person invited is put off his guard, and pre- vented from examining with caution the position in which the in- viter has placed him. A volunteer also, that is to say, a person voluntarily doing some- thing, although not paid for doing so, nor requested, is bound to take more than ordinary care, for he has chosen to intrude himself into the affairs of another. It is otherwise, as we shall see, if he undertakes to do something in order to save a loss (i) It would seem to be the law that wherever a person undertakes to perform a service (oris what the Koman law called a mandatory) he is bound to bring to the performance of such service that amount of skill and care which the service reasonably demands, and which, by accepting the service, he has undertaken to supply (k) ; and this is so, whether the mandatory is paid for his services or not (I). In the report of a judgment of Willes, J., in the " Law Journal " (m), that learned judge says : " In the case of a gratuitous bailment, it is said if you employ a man of no skill to ride your horse, he is bound to use such skill as he possesses, and that you can require no more, and that he is liable for gross negligence in that sense. But if you employ a man to ride your horse who professes to be a groom, he would be answerable unless he had competent skill in horse riding." But although this may be the English law, as it (c) Post, s. 2. (d) Tarry v. Ashton, L. R. 1 Q. B. D. 314 ; 4,5 L. J. Q; B. 260 (hanging lamp over highway); Kearney v. London, B. & S. C. Ry. Co., L. R. 6 Q. B. 759 ; 40 L. J. Q. B. 285' (bridge over railway) ; Scott u. London Dock Co., 3 H. & C. ,596 ; 34 L. J. Ex. 17 (sngar bag falling upon custom-house officer lawfully on premises). (e) Francis v. Cockerell, L. R. 5 Q. B. 501 ; 39 L. J. Q. B. 291. ^ (/) See Corporations, pos<, Ch. III., s. 7, and Master and Servant, ante, pp. 74, 85. (g) Ante, Ch. II., s. 2. (i) Post, Ch. IV. See Wharton, s. 69, s. 534. As to injury to a volunteer see Ch. V., Contributory Negligence. (k) See Grill v. General Iron Screw Co., L. R. 1 C. P. p. 612, per Willes, J. (<) See ante, p. 11, note (y). .(m) Grill V. General Ii;on Screw Co., 35 L. J. C. P. at p. 330. (1706) MORE THAN ORDINARY CARE. 83 certainly was the Eoman, yet the fact of the defendant not being paid for his *servicea would, not unnaturally, influence the [*124} mind of a jury, although, logically speaking, it ought not. If it be the law that the fact of the services being gratuitous does not alter the degree of care required, then whether gratuitous or not the mandatory is bound by the law to exercise skill, and whether he has done so is a matter of fact unaffected by the legal question. There is no doubt that where it is evident that persons hold them- selves out to be persons of skill, they are bound to exercise skill (n). In Jones v. Bird (o), Bayley, J., says : "It is not enough that the defendants have acted bond fide and to the best of their skill and judgment. They are bound to conduct themselves in a skillful manner, and the question was most properly left to the jury to say whether the defendants had done all that any skillful person could reasonably be acquired to do in such a case" (p). Of this class are corporations who undertake the performance of diificult duties in consideration of the benefits bestowed upon them by their charter or statute (q) ; directors of companies (r) ; car- riers (s) who undertake responsible and difficult duties (beyond their liability at common law), though as we shall see .as to carry- ing passengers, they appear to be performing a duty attended hj serious danger, and may be classed amongst those persons who are dealing with dangerous goods. So, also, ship managers, as far as they are carriers of passengers. Physicians, surgeons (t), &c., would appear to belong to both classes ; but innkeepers (u), solici- tors (v), bankers (x), and public officers (y) are persons who have *undertaken duties, not indeed dangerous to life or limb, but [*125^ difficult to perform, and involving a high degree of care. Where persons possess or use dangerous things they are bound to exercise more than ordinary care in their control of them, and, indeed, in some cases, as we shall see, to keep them safe at their peril. Of this class are persons keeping dangerous animals (z), dan- gerous goods (a), gas (b), machinery (c),and carriers of passengers (d). (n) As to ordinary skilled workmen see the remarks ante, p. 25. (o) Jones V. Bird, 5 B. & A. 837. (p) Cited by Blackburn, J., in delivering the opinions of the judges in Mer- sey Docks V. Gibbs, L. K. H. of L. 113 ; 34 L. J. Ex. 225 ; and see Grill v. General Iron Screw Co., supra. (q) Post, a. 7. Ir) Post, s. 8. (g) Post, B. 9. (t) Post, s. 11. (u) Post, s. 10. (t)) Post, s. 12. (x) Post, s. 13. (y) Post, s. 15. (z) Post, s. 3. (a) Post, 8. 4. (b) Post, s. 5. (c) Post, .s. 6. (d) Post, a. 9. I (1707) 84 MORE THAN ORDINARY CARE. Somewhat similar to the case of possessing or using dangerous things is that of a man pursuing a course of conduct which is likely to prove dangerous, and although such course of conduct may be perfectly legal, or even for the public good, yet he is bound to exer- cise more than ordinary care in the presence of a danger known to himself. Thus, where a man, perhaps for some very good reason, is driving upon his wrong side of the road, he is bound to use more than ordinary care to avoid collision (e). Also, as we have seen, a man who employs a contractor or some independent person to do a dangerous thing is responsible for any negligence in the contractor (/). Thus, where the owner of a house adjoining the plaintifP 's employed a contractor who negli- gently cut into a party- wall to fix a staircase; it was held that the employer was liable, the fixing of the staircase being part of a haz- ardous operation (g). "The law," said Lord Fitzgerald, "has been verging somewhat in the direction of treating parties engaged in such an operation as the defandant's, as insurers of their neigh- [*126] hours or warranting them against injury. It *has not, how- ever, reached quite to that point. It does declare that under such a state or circumstances it was the duty of the defendant to have used every reasonable precaution that care and skill might suggest in the execution of his works so as to protect his neighbor from in- jury, and that he cannot get rid of the responsibility thus cast on him by transferring that duty to another. He is not in the actual position of being responsible- for injury no matter how occasioned, but he must be vigilant and careful, for he is liable for injuries to his neighbour caused by any want of prudence or precaution, even though it may be culpa levissima." Where a positive duty is imposed by statute, it should seem that something more than ordinary care is required of the person who has to perform it, and it is certain that such person cannot shield himself by saying that he employed a competent person (contractor or other) to perform it (h). So, also, where a statutory duty has to be performed by the de- fendant, the plaintiif has a right to calculate upon its due perform- ance, and, when it is not performed, to infer that the occasion for its performance has not arisen, and to act on that inference (*), be- ing put off his guard by the conduct of the defendant. Upon the other hand, where a statute imposes a duty with the object of preventing a certain class of mischief, a neglect of such (e) Puckwelli). Wilson, 5 C. & P. 375, ante, p. 29. (/) Ante, pp. 84, 87; Bower w. Peate, 1 Q. B. D. 321; Tarry r. Ashton, 1 Q. B. D. 314; Angus v. Dalton, 3 Q. B. D. 85; 4 Q. B. D. 162; 6 App. Cas. 746. (g) Percival v. Hughes, 9 Q. B. D. 441; 8 App. Cas. 443; Sturges v. Theologi- cal Ed. Sdc, 39 Amer. Rep. 463. (A) Grey v. Pullen, 5 B. & S. 970; 34 L. J. Q. B. 265; and see Si 7, Corpora- tion pel-forming statutory duties. (/) North Eastern Ry. v. Wanless, 43 L. J. Q. B. 185; L. R. 7 H. L. 12 (gates of level crossing to be closed by statute left open). (1708) MORE THAN ORDINARY CARE. 85 duty cannot be made the foundation of an action by a person who has by such neglect suffered an injury of a different kind (k). Common carriers are made liable, as it is said, by the custom of the realm, that is to say, that the law deems it expedient that they should be held strictly liable for the *safety of the goods [*127J committed to their care. Their duties, as such common carriers," are therefore without the scope of this work (Z), for they are liable without any negligence being shown ; but, even where this absolute liability does not attach, we shall find that they are expected to ex- ercise a high degree of care. The contract to ' carry passengers is not within the duties of a common carrier, and carriers of passengers are not therefore in- surers, and it has even been thought that the carrier of passengers ought only to be called upon to use ordinary care ; but it is plain that, for the same reason that carriers of goods are held liable for slight negligence, so also are carriers of passengers, viz., because the law thinks it expedient to compel carefulness in the interests of the public (m). One obvious reason why the law thinks it expedient, in the case of common carriers, to compel carefulness is, because of the confu- sion and loss of property which would arise if carriers of goods were negligent; and one obvious reason why the law thinks it ex- pedient to compel carefulness in carriers of passengers is because of the danger to human limb and life if such carriers were negli- gent. There are, no doubt, many other reasons ; but, whatever the reasons may be, we think it is plain that the law demands some- thing more than ordinary care from carriers of passengers. Thus it is plain, we think, from the cases cited post, " Carriers," s. 8, that the Courts have treated the carriage of passengers by stage coach as a matter of serious public concern; and although they seem to use the words "ordinary care" and "due care" as synonymous, yet it is pretty plain that the judges seem to have thought some considerable degree of care, to say the least of it, *ought to [*128J be observed (n). It is to be considered that the passenger is there by invitation and has paid his fare, and therefore the coach-owner has undertaken to provide, not, indeed, for his safety in all events, but a considerable degree of security. So, also, it is clear that a considerable degree of care has been required of coach- owners in providing a safe conveyance (o), so that they have been held liable even for latent defects (p). The reader is now referred to the following sections in which the cases are collected, where, as it a ppears to the author, more than (k) Gorris v. Scott, L. R. 9 Ex. 125. (I) See s. 8, Carriers. (m) Redhead v. Midland Ry. Co., per Blackburn, J., L. E. 4 Q. B. 379; 38 L. J. Q. B. 169; and see ante, p. 4. (n) Redhead v. Midland Ry. Co., supra. (o) Bremmer v. Williams, 1 C. & P. 414. (p) Sharp V. Grey, 9 Bing. 457. (1709) 86 OWNERS OF REAL PROPERTY. ordinary care seems to have been demanded. The reader -will be pleased to remember that the language of the judges will not en- tirely bear out the doctrine that more than ordinary care has been demanded, the words "ordinary" and "reasonable" being used, but evidently (as the author thinks), in many cases, as meaning ordinary and reasonable under the circumstances, that is to say, more than ordinary and reasonable in ordinary circumstances. Section II. Neglect of Duties of Owners and Occupiers of Real Property. The neglect of their duties by the owners of property has been more fully discussed in a former chapter (q), and it is only neces- sary here to point out how far such owners are bound to exercise something more than ordinary care in dealing with their property so as not to injure another. [*1 29] It is said that something more than ordinary care is Re- quired where a man is using his own property for his own private advantage or pleasure (r). It seems, however, not free from doubt whether, if a man uses his property for his own advantage in an ordinary manner and so as not to be reasonably likely to involve ■ danger he vyould be bound to exercise more than ordinary care; but if he used his property in an extraordinary manner for his own ad- vantage (s) or so as to be likely to involve danger (t) he would be clearly bound to exercise something more than ordinary care. In these latter cases where persons undertake extraordinary matters or matters likely to involve danger they must be assumed to under- take to exhibit skill or to use extraordinary care (m) and cannot excuse themselves by delegating iheir diity to some one else (x). The first proposition, however, although doubtful, I think may be supported. In principle it would appear to be correct, and Mr. Campbell (y) cites authorities to justify that position. The cases cited by him, however (z), are those in which the Court presumed negligence from the mere fact of the accident, and he assumes that (q) Ch. II, s. 2. ()•) Campbell, s. 13, p. 15. (s) Fletcher v. Eylands. (t) Clerk V. Chambers, Bower v. Peate, L. E. 1 Q. B. D. 321; 45 L. J. Q. B. 446. (u) Clerk v. Chambers, supra. (x) Bower v. Peate, supra. [y) Campbell, ss. 14, 15, 16. (z) Kearney v. L. B. & S. C. Ey., L. E. 5 Q. B. 411 ; 6 Q. B. 759 ; Scott v. Liverpool Dock Co., ante, p. 83; Byrne ?). Boadle, ante, p. 83; Brlggs v. Oliver, 35 L. J. Ex. 163. (1710) INVITATION. 87 to be equivalent to saying that evidence of slight negligence is suf- ficient ; and he argues that some positive and direct evidetice of negligence ought to have been adduced to prove ordinary negligence. But the explanation is that there is a difference between slight evi- dence of negligence and evidence of slight negligence, and so far from saying that evidence of slight negligence would be sufficient, Gockburn, C. J., presumed a Want of ordinary care in the railway case, and Channell, B., made the same presumption in Byrne v. Boadle. These cases were decided upon the principle of the *maxim res ipsa loquitur (a), and, when the fact was once [*130] allowed to be evidence of negligence at all, it might be evidence eq[ually in most of the cases of slight, ordinary, or gross negligence. The better way, as it is again submitted, is to point out that in these cases there was a duty upon the defendants, who for their own ad- vantage were using their property in a manner which might cause injury, to exercise something more than ordinary care, and the question is, did they reasonably fulfil that duty. The grantee of a market who takes a toll for his own benefit in- curs an obligation to maintain the market in a state reasonably fit for the purpose for which it was granted (6), and if he erects an obstruction (c) which causes danger to the property or persons who frequent the market he is as much liable as one who does so on a highway. The same principle applies to the conduct of railway companies with respect to level crossings. With respect to implied invitations by them to persons to cross, as by leaving their gates open when they are by statute ordered to keep them shut, &e., their duties will be discussed presently (d). But apart from their statutable duty they are by running trains upon a level crossing using their prop- erty in a manner likely to cause danger, and it is their duty to ex- ercise something more than ordinary care (e). *So, also, as we have seen (/), railway companies are bound [*13 1 ] to prevent sparks flying from their engines upon the lands adjoining their lines, so as to cause injury, unless they are protected by the powers granted to them by Parliament, and where they are so pro- (a) See post, Ch. VI. (6) Per Lush, J., Lax v. Darlington (Mayor of), 48 L. J. Q. B. 143; aff. on app. L. K. 5 Ex. D. 28; 49 L. J. Ex. 105. (c) Defendants had placed some low spiked railings round a statue in the cattle market. (d) Next pages. (e) Manchester S. Y. Ey. Co. v. Fullarton, 14 C. B. N. S. 54 (engine-driver blowing ofif steam); Stubley v. L. & N. W. Ey. Co., L. E. 1 Ex. 13; 35 L. J. Ex. 3 (placing no watchmen); see also Bilbee v. L. B. & S. C. Ey. Co., 18 C. B. N. S. 584; 34 L. J. C. P. 182 (100 trains passing in the day), Cliff ti. Mid. Ey. Co., L. E. 5 Q. B. 258 (omission to keep a gatekeeper). See, however, Skelton V. L. & N. W. Ey. Co., L. E. 2 C. P. 031, post, Ch. .V., Contributory Negligence (ring which fastened gate not on post, but goods train standing on the cross- ing, held on the whole no invitation, and contributory negligence in plaintiff). (/) Ante, p. 41. (nil) 88 OWNERS OF REAL PEOPERTY. tected, they must still, as I think, use something more than ordinary- care to prevent damage from a cause so likely to be dangerous (g). Where a person invites another upon his premises it should seem that he is bound to exercise more than ordinary care; even although the coming upon the premises may be partly for the benefit of the person invited, for he has taken upon him a duty of a high degree (h). If the person giving the invitation gives it for his own bene- fit alone it is clear that he will be answerable for what is called slight negligence; or, to speak more correctly, he is bound to exer- cise something more than ordinary care. But even where the in- vited person derives benefit from coming upon the premises, ha. seems to be entitled to the exercise of something more than ordinary care on the part of the inviter. Thus where the person invited comes upon the premises in the execution of a contract with the inviter, and it is for the advantage of both that he should come upon the premises, the inviter has taken upon himself a higher degree of duty than if the person upon the premises were a mere licensee, or mere guest (i), to whom he would only be liable for something in the nature of a trap, as we have seen (fc), or, perhaps, for ordinary negligence. [*132] The reason of this seems to be that the invitationputs *the plaintiff off his guard, implying some sort of warranty of safety (l) ; so that it is the more incumbent upon the inviter to use great care. The question of invitation is commented on in the judgment of Brett, M. E., in Heaven v. Pender (see Appendix A). A question often arises as to whether there has in fact been an invitation, or whether the person coming on the premises is only what is called a bare licensee (m). Thus in the ordinary case of a customer going to a shop to pur- chase goods (n) there is an invitation, and the customer has a right to expect to be taken care of (o), and the same is the case of pas- sengers by railway who, as we shall see (p), have a right to expect not only that the premises are safe, but also that the carriages are safe. The same rule applies to wharfs and docks, as we shall see (q), and to all cases where persons by their conduct hold out to (g) Jones v. Festiniog Ry. L. R. 3 Q. B. 733 ; 37 L. J. Q. B. 214 ; Vaughaa V. Taff Vale Ey. Co., 5 H& N. 685 ; but see ante, p. 41, note (n). (h) Campbell, s. 32 ; Shearman 499a, p. 594. (i) Holmes v. N. E. Ry. Co., L. R. 4 Ex. 254; 38.L. J. Ex. IGl ; Southcote v. Stanley, 1 H. & N. 247 ; 25 L. J. Ex. 339 ; Francis v. Cockrell, ante, p. 122. (k) Ante, Ch. II., s. 2. (l) North-Eastern Co. v. Wanless, L. R. 7 H. L. 12 ; 43 L. J. Q. B. 185. See also D. W. & W. Ey. Co. v. Slattery, L. R. 3 App. Cas. 1155. (m) John V. Bacon, L. R. 5 C. P. 437 ; 39 L. J. C. P. 365 ; Batchelor v. Fort- escue, 11 Q. B. D. 81. (re) See Indermaur v. Dames, L. R. 1 C. P., per "Willes, J., p. 2S7 ; 2 C. P. 311 ; 36 L. J. C. P. 181 ; Holmes v. N. E. Ry. Co., per Bramwell, B., supra. (o) Chapman v. Rothwell, El. Bl. & El. 168. (p) Post, carriers, s. 9. (q) Post, wharfs sub.-s. 2. (1712) INVITATION. 89 others that they may safely come upon their property. Thus where ferrymen put down a slip from the ferry to the shore for a horse to be led across (although they did not profess to take care of horses) and the rail was negligently loose and broken, it was held they were liable ; Maule, J., saying, " suppose it was the duty of one to provide another with a chair, I apprehend that duty could not be said to be fitly and adequately performed by providing him with a chair having a tenpenny nail driven up through the bottom of it (r). And where a person makes a pathway and permits it to f be [*133] used to his house he invites all persons who have any reasonable ground for coming to his house to use the pathway, and he would be responsible for neglecting to fence off dangerous places (s). So, also, where a contract has been entered into, and the plaintiff comes upon the premises in pursuance of the contract, he comes by invi- tation (t). Where the plaintiff, a licensed waterman, came upon the premises to complain of a barge being improperly navigated, and was re- ferred by defendant's man to the foreman, and, while on his way to see him, he was injured by the fall of a bale of goods, it was held that whether he was there by invitation or was a bare licensee the defendants were liable, but in the judgment of the Court he was there by invitation (m). Where a railway company is bound by statute to shut the gates of a level crossing while a train is approaching, and omits to do so, it invites persons to cross the line, and thereby puts them off their guard (x), and is liable for the injuries which ensue. The question of " invitation " or not, is a question of evidence into which we need not enter at greater length. The question chiefly considered here is, when an invitation has been shown what sort of negligence will render the inviter liable for damages. *Section II. — Sub-section I. [*134] Owners of Docks, Wharfs, <&c. Where a person, company (y), or corporation (2), is intrusted by statute with the execution of certain duties and is authorized to re- (r) Willoughby r. Horridge, 12 C. B. 742. (s) Lancaster Canal Co. v. Parnaby, 11 Ad. & E. 243, per Tindal, C. J. (i) Holmes v. N. E. Ey. Co., L. E. 6 Ex. 123 ; 40 L. J. Ex. 121 ; Indermaur V. Dames, L. E. 2 C. P. 311 ; 36 L. J. C. P. 181. (m) Wliite V. France, L. E. 2 C. P. D. 338 ; 46 L. J. C. P. 823. See also Smith V. Steele, L. E. 10 Q. B. 125 ; 44 L. J. Q. B. 60 ; Smith v. London and St. Katherine Docks, L. E. 3 C. P. 326 ; 37 L. J. C. P. 217 ; "Wright v. London and N. W. Ey. Co., L. E. 1 Q. B. D. 252 : 45 L. J. Q. B. 570. (x) N. E. Ey. Co. v. Wanless, L. E. 7 H. L. 12 ; 43 L. J. Q. B. 185 ; see also Stapleyt). L. B. & S. E. Ey. Co., L. E. 1 Ex. 21 ; 35 L. J. Ex. 7. As to level crossings, see Eailways Clauses Act, 1863. (y) Lancaster Canal Co. v. Parnaby, 11 Ad. & El. 223 ; see Corporations, Ch. IIL, s. 7. (z) Mersey Docks v. Gibbs, L. E. 1 H. of L. 93 ; 35 L. J. Ex. 225, (1713) 90 ceivG tolls, they are liable for negligence in the performance of those duties, and it should seem are bound to take more than ordinary- care (a). " The common law imposes a duty upon the proprietors, not perhaps to repair the canal or absolutely to free it from obstruc- tion, but to take reasonable care so long as they keep it open for the public use of all who may choose to navigate it, that they may navigate it without danger to their lives or property " (b). They have no right with a knowledge (or culpable ignorance) of the danger- ous condition of the dock to keep it open and invite the vessels into peril by holding out that upon payment of tolls, any ship may enter and navigate the dock (c). It is immaterial whether or not they are bound by their Act to repair, or whether the premises or works are vested in or constructed by the defendants (d). " The subject using a port or market, is not a mere licensee ; he is [*135] exercising a right as one of the public for *who3e benefit the port or the market was made, and is entitled to have a free and safe passage in the one case, and a safe standing place in the other" (e). It makes no difference that the docks are in the hands of a cor- poration, who derive no profit personally from the tolls, which are devoted to the maintenance of the works and the payment of the debt contracted in their Execution, and in case of any surplus are reduced for the benefit of the public (/). It does not matter whether the obstruction which causes the in- jury to a vessel using a dock is one which has grown up in a chan- nel, once well cleared, or whether such channel was opened for pub- lic use before the obstruction was cleared away (g). The care required of dock and wharf owners seems to be the same with respect to all persons expressly or impliedly invited upon their premises, whether they are using the dock for the purposes of a dock or not (h). (a) See Campbell, p. 35, 2nci ed. In so far as a statutory duty is neglected, the law ■vvill be found treated of under the title, Corporations, see Ch. III. , s. 7. (J) Lancaster Canal Co. c. Parnaby, supra, at p. 242 ; Mersey Docks v. Pen- hallow, 7 H. & N. 3-29, Exch. Ch. ; 30 L. J. Ex. 329 (accumulation of mud in dock) ; L. E. 1 H. L. 93 ; 35 L. J. Ex. 225. (c) Gibbs V. Trustees of Liverpool Docks, 3 H. & N. 164, Exch. Ch. S. C. Mersey Docks v. Gibbs, L. E. I. H. L. 93 ; 35 L. J. Ex. 225. (d) AVinch v. Conservators of the Thames, L. E. 9 C. P. 378 ; 43 L. J. C. P. 167, Exch. Ch. diss. Cleasby, B. (towing path not constructed by or vested in defendants). (e) JPer Lush J., Lax v. Darlington (Mayor of), 48 L. J. Q. B. 143. Aflf. on App. 49 L. J. Q. B. 105 ; L. E. 5 Ex. D. 28. (/) Mersey Docks v. Gibbs, supra. iff) Thompson v. North Eastern Ey. Co., 31 L. J. Q. B. 194. (h) Manley v. St. Helen's Canal Co., 2 H. & N. 840 (bridge opened for boat passenger on highway fell in) ; Smith v. London Docks, L. E. 3 C. P. 326 (plaintiff invited by ship's officer, gangway insecure) ; White v. France, L. E. 2 C. P. D. 308 ; 46 L. J. C. P. 823 (plaintiff told to go to wharf, bale of goods fell) ; Low v. Grand Trunk Ry. Co., 39 Amer. Eep. 331 (custom house ofacer); see these cases, ante, p. 133. (1714) WHAKF OWNERS, ETC. 91 The duties of harbour and pier masters, and others, are defined by the 10 & 11 Vict. c. 27 (The Harbours, Docks, and IPiers Clauses Act, 1847) (i). Their masters, the trading docks companies or corporations, or trustees, are liable for their negligence, and not merely for negligence in their appointment or choice of such offi- cers (k). In a recent case the plaintiff's ship, while going through *a [*136] channel from one harbour to another, over all of which the defend- ants had control, struck against a sunken wreck. It was provided by 40 & 41 Vict. c. 16, s. 4, that " where any vessel was sunk so as to be in the opinion of the authorities a danger to navigation the author- ity might remove it, &c." These words were held to be permissive only. But a private Act provided that the defendants were to re- ceive certain dues for the purpose of maintaining, &c., the harbours and channel, and it was held that these words imposed a duty to remove the wreck (Z). Section III. Neglect of Duties of Owners of Dangerous Animals. We have seen ante, Ch. II., s. 3, that owners of " savage " ani- mals, such as lions, tigers, &c., must keep them at their peril, and also that the owners of ordinary "tame" animals must exercise the ordinary care with respect to them which is suited to their par- ticular nature and habits. There is, however, a class of animals differing from each of these, and which we have denominated " dangerous." We intend by thi-s expression those kind of animals which may be atid often are, as a class, dangerous (such as bulls), and also those particular animals of which the class may be harm- less, but the animal itself is not so (as dogs or cats). We have also remarked that where the class of animal is harmless the owner is not answerable in action of negligence for injurious acts done by his particular animal, contrary to the nature and habits of its class, unless he was aware of such mischievous disposition (m), in which *case the law says he must, as in the case of a savage ani- [*137] H) And see 24 & 25 Vict. c. 45 ; 25 & 26 Vict. cc. 19, 69. For Eoyal Dock- yards, see 28 & 29 Vict. c. 125. (k) Mersey Docks v. Gibbs, supra, commenting on Metcalf v. Hethrington, 11 Exch. 257. (Z) Dormant 1-. Furness Ry. Co., L. E., W. N. April 21, 188.3, p. 72. 11 Q. B D 496. (ni) Mason v. Keeling, 1 Ld, Raym. 606 ; Buxendin v. Sharpe, 2 Salk. 662 (bull running at a rnanl ; Cox v. Burtaridge, 13 C. B. N. S. 430 ; 32 L. J. C. P. 89 (horse kicking chUd). (1715) 92 DANGEROUS ANIMALS. mal, keep it at his peril (w) where the question of scienter arises and the liability becomes absolute, the question of " negligence " does not arise. It therefore remains only to consider the case where a person has the control of animals which are notoriously " dangerous " ; and it seems most reasonable that he should exercise with respect to them something more than ordinary care. He has undertaken to control a sort of animal which notoriously demands more than ordinary care, and accordingly the law imposes a corresponding duty upon him. The particular acts necessary to control such an animal will vary according to circumstances. Where an agister of cattle placed the plaintiff's horse in a field where a bull was in the habit of coming, and the bull gored the horse, it was held that there was negligence, although the agister was not aware that the bull was vicious. There was " a contract to take reasonable care, and the doctrine of scienter ought not to be extended to a contract to take reasonable care" (o). Horses in a street also require more care than in a country road, for they may take fright and injure the passers by {p). A bull in a street has been said to require the utmost care (g), in a field it would require less; but in any case it is submitted that something more than the ordinary care required to control animals of a harm- less or domestic character must be used. It seems to be doubtful whether a bull is a dangerous animal (r). In the argument in Mason v. Keeling (s), cases are mentioned [*138] where an action w^s held maintainable without *alleging scienter, viz., a case of a pair of young horses; an ox getting loose from a stall; a monkey biting a child; and a chained fox; and it was replied that, whatever might be the case with respect to those animals, a dog is a domestic animal, and does not require such a guard to be set over it as other animals which are not so familiar to human kind, and consequently may be supposed to be more easily irritated to do mischief. And in the judgment of 'Holt, C. J., it is said " For there is a great difference between horses and oxen in which a man has a valuable property and which are not so familiar to mankind, and dogs. The former the owner ought to confine, and take all reasonable precaution that they do no mischief, other- wise an action will lie against him; but otherwise with dogs before he has notice of some mischievous quality." In Tillett v. fVard an. ox was being driven through the streets and entered the open door- way of the plaintiff's shop and damaged his goods. The County Court judge found that there was no negligence, and the Divisional (n) Ante, p. 53. (o) Smith V. Cook, 1 Q. B. D. 79. Ip) Lynch v. Nurdin, 1 Q. B. 38, was a case of this sort. (g) Ficken v. Jones, 28 Cal. 618; but see infra, Tillet v. "Ward, 10 Q. B. D. 17. M See Wharton, s. 910. (s) Mason v. Keeling, 1 Ld. Eaym. 606. (1716) DANGEROUS GOODS. 93 Court held that the defendant was not liable. They said that the owner of animals in a field is bound to keep them from'trespassing, but when an injury is done by them whilst on the highway or an unfenced land immediately adjoining the highway, the owner is not liable unless negligence is proved (s). It has been held, however, that a scienter must be proved to make a man liable for his bull run- ning at another man {t) ; and the same has been held with respect to rams (m). In the case of a monkey (as), it seems that the sort of knowledge which would affect the defendant's liability was more one of general knowledge of the propensities of that kind of ani- mal, though particular knowledge was no doubt alleged. *Section IV. [*139] Neglect of Duties by Owners of Dangerous Goods, &c. There can be no doubt that the owners or controllers of danger- ous goods are bound to exercise more than ordinary care, as for in- stance in the use of a gun {y), or in the use of fireworks (z) ; for they have not only taken upon them a matter or business requiring great care, but the law, having regard for human life and safety, demands great care from them. This policy of the law applies, as we have already pointed out, to other matters besides dangerous goods, viz. : to a dangerous use of real property (a). It may even be doubted whether in some cases it would not be held that a man must keep dangerous goods at his own peril. AVhere a prudent man would reasonably foresee great danger there he would also exercise great care, and culpable negligence is, as we have said (6), doing an act which a reasonably careful man would foresee might be productive of injury and which he would abstain from doing. So persons are "bound to use the very greatest care in the use (s) Tillet V. Ward, 10 Q. B. D. 17. h) Hudson V. Roberts, 6 Ex. 699; 20 L. J. Ex. 299. (u) Jackson u. Smithson, 1.5 M. &W. 561. (x) May V. Bnrdett, 9 Q. B. 101. (y) Dixon v. Bell, 5 M. & S. 198 (allowing girl to take a gun), and see;ofr Lord Denman in Lynch v. Nurdin, 1 Q. B. 29; Deane v. Clayton, 7 Taunt. 489 (defendant intentionally, not carelessly, put dog spikes in his wood, trespass); but see Jordin v. Cmmp, 8 M. & AV. 782; llattv. Wilkes, 3 B. & Aid. 304 (spring guns); Bird -». Holbrook, 4 Bing. 628 (spring gun, plaintifif trespasser); Shearman, ss. 24 and 587; see these cases commented on in Lynch v. Nurdin, 1 Q. B. 29; and in Clark v. Chambers, 47 L. ,T. Q. B. 429; L. R. 3 Q. B. D. 327. (z) See Scott v. Shepherd, 2 W. Bl. 892 (trespass by throwing a squib); King V. Ford, 1 Stark. 421 (negligence in schoolmaster allowing pupils to use fire- works). (a) Ante, p. 129. (6) Ante, p. 1. (1717) 94 DANGEROUS GOODS. [*140] of poisonous drugs (c), or highly explosive *material8 (d), or materials otherwise dangerous or destructive (e), and of the same class of cases are those of placing a dangerous instrument upon a highway (/). Numerous statutes have been from time to time passed, inflicting penalties upon persons carelessly dealing with dangerous goods, but these are beyond the scope of the present work, which deals only with those breaches of duty for which a right of action arises, and not with questions of public safety and police (g). The im- position of penalties does not take away the right of action, if such a right exists apart from the statute; but it does not, perhaps, fol- low that where a statute orders something to be done and imposes a penalty, that a right of action is given (h). [*141] *Section V. Gas Companies, Fitters, <&c. "With respect to the duties of gas companies, and persons having the management of gas, it would appear that they are bound to exercise the very greatest care, for they are using a material difficult to manage, and of a very dangerous character in many ways, for it is at once explosive and poisonous; and, not unreasonably, these com- panies are bound in heavy penalties by their Acts to exercise the greatest care, and even to become in some sense insurers (i). It is true that the language sometimes used is that such com- panies are only liable for ordinary negligence ; but it is added that " those who carry on operations dangerous to the _public are bound (e) Shearm, a. 592. In Thomas ci uxor v. "Winchester, 6 N. Y. 397, the de- fendant sold through his assistant a bottle of belladonna for dandelion to a druggist, who sold it to another druggist, who sold to the female plaintiff, and defendant was held liable for negligence on the ground (amongst others) that he was bound to exercise more than ordinary care. In Heaven 1>. Pender, Brett, M. R. , said he doubted whether the case of Thomas v. Winchester did not go too far; see his judgment in Appendix A. (d) Shearm. s. 592; Carter r. Towne, 98 Mass. 567. (e) Brass v. Maitland, see per Crompton, J., 6 El. & B. 470 (chloride of lime stowed in vessel); Farrant c. Barnes, 11 C. B. N. S. 553. (/) Clark V. Chambers, L. R. 3 Q. B. D. 327; 47 L. J: 427, where most of the cases above cited are very elaliorately reviewed by Cockburn, C. J. (g) These statutes have been consolidated in the 38 & 39 Vict. c. 17. As to carriage by raihvay, see 8 & 9 Vict. c. 20; by tramways, 33 & 34 Vict. c. 78 ; as to shipping, 36 & 37 ViCt. c. 85, ss. 23—28; 38 & 39 Vict. c. 17, ss. 42, 101. As to petroleum, &c., see also 34 & 35 Vict. c. 105. ' (A) Atkinson v. Newcastle "Waterworks, L. R. 2 Ex. D. 441; 46 L. J. Ex. 775; commenting on Couch v. Steel, 3 E. & B. 402. (j) Hipkins v. Birmingham Gas Co. , 6 H. & N. 250 (gas fouling a weU), (1718) GAS COMPANIES. 95 to use all reasonable precautions" (A;), and as "reasonable precau- tions" in dealing with such a material as gas arR equivalent to tak- ing the greatest possible care, it seems misleading to say that such companies ai-e only liable for ordinary negligence. Gas companies are liable for neglecting to repair their pipes, and are bound to inspect them so as to become aware of any escape ; and if such escape has existed for several days, and was discover- able by the company if they had exercised a proper supervision, they are liable; and it is no answer that immediately upon express notice they sent to do the repairs, but sent too late ( I). They are bound not only to keep in order their own works, but they are bound to exercise care in repairing or investigating pipes, &c., of persons to whom they are *supplyinggas(jw). Such [*142] persons ought to give notice of an escape by way of warning to the company; and in the absence of such notice, or some reasonable opportunity of knowing, the company would not be liable (n). A gasfitter was employed to repair a gas-meter. He took it away and supplied a temporary pipe. The plaintiff, a servant, in the course, of his duty, and without any negligence, went to light the gas, and was injured by the negligence of the gasfitter. Lopes, J., after consideration, said: "I think the plaintifP's right of action is founded on a duty which I believe attaches in every case where a person is using or is dealing with a highly dangerous thing, which unless managed with the greatest care is calculated to cause injury to bystanders. To support such a right of action there need be no privity between the party injured and him by whose breach of duty the injury is caused, nor any fraud or misrepresentation or conceal - ment, nor need what is done by the defendant amount to a public nuisance. It is a misfeasance independent of contract" (o). Section VI. Persons employing Machinery. In a manufacturing country like England it is not surprising that the common law duty of taking reasonable care has been found scarcely adequate to protect persons from the dangers arising from complicated and dangerous machinery, and consequently we find that statutes have *been passed for the protection of persons L*143] (k) Blenkiron v. Great Cent. Gas Co., 2 F. & F. 440. (l) Mose V. Hastings Gas Co., 4 F. & F. 324. (m) Burrows v. March Gas Co., L. R. 5 Ex. 67 ; 7 id. 96 ; 41 L. J. Ex. 46 ; Lannen v. Albany Gas Co., 46 Barb. 264 ; affirmed, 44 N. Y. 459. (re) Lannen v. Albany Gas Co., mipra. (o) Parry v. Smith, L. R. 4 C. P. D. 325 ; 48 L. J. C. P. 731, (1719) 96 MACHINERY. employed near or about machinery of a dangerous nature. It was found very difficult to say in each particular case at comiAon law what particular mode of using care ought to have been adopted. Persons employing machinery are bound to provide machines rea- sonably fit for use (p), and in a matter where the thing itself is difficult to make and to control, and the effects of bad manufacture or careless control might be very serious, I cannot doubt that per- sons employing machinery are bound to use something more than ordinary care. It appears that persons setting up machines are nod bound to fence them against a mere licensee (q), and d, fortiori they are not bound to prevent persons from improperly meddling with ma- chinery (r). If fencing be put up of such a character as reasonably to mislead a person into a false belief that the machine might be safely ap- proached, the defendant would, it appears, be liable for such neg- ligent fencing (s). • By the 7 Vict. c. 15, s. 21, and 19 & 20 Vict. c. 38, s. 4, now both repealed, see infra, provision was made for the fencing of machinery, and remedies by way of penalties were provided by subsequent sec- tions of the Act (42—51, 59)(*). [*144] *The section only applied to rooms in which a manufac- turing process is going on (u), and to such of the machinery as is in motion for some manufacturing process, and it was not sufficient that the part of the machine in question was connected with another part of the machine which was in motion for a manufacturing pro- cess (x). "Mill gearing" was held not to be confined to those parts, by which motion was first communicated to the machine (y). As in other cases, the doctrine of contributory negligence was (p) Cowley V. Mayor of Sunderland, 6 H. & N. 565; 30 L. J. Ex. 127 (dry- ing machine — steam application). (q) Bolch V. Smith, 7 H. & N. 736; 31 L. J. Ex. 203 (machine in dock-yard— road to a privy) ; Caswell v. "Worth, 25 L. J. Q. B. 121 (carpet manufactory — not fenced under Act). (r) Mangan v. Atterton, 4 H. & C. 388; L. E. 1 Ex. 239; 35 L. J. Ex. 16] (machine for crushing oil-cake in market ; boy trespasser) ; l3ut as to this case see judgment in Clark v. Chambers, 47 L. J. Q. B. 427, at p. 434; L. R. 3 Q. B. D. 327. (,s) Bolch V. Smith, supra; see also per "Willes, J., Corby v. Hill, 4 C.' B. N. S. 556. (t) The action of negligence lies not-svithstanding the remedy by penalty: Caswell V. Worth, 25 L. J. Q. B. 121, in course of argument, per Campbell, C. J.; Couch V. Steel, 23 L. J. Q. B. 121; Atkinson v. Newcastle "Waterworks Co., L. E. 2 Ex. D. 441; 46 L. J. Ex. 775. An action will not lie in all cases where a statute orders something to be done under the sanction of a penalty, but the penalty does not take away a right which existed before the statute. Penalties are provided by ss. 81, 82 of the new Act, infra. The former penalty was not more than £20, now it is £100. (u) Coe V. Piatt, 7 Ex. 923 (mill gearing). [x) Coe V. Piatt, 7 Ex. 460. (2^) Holmes v. Clarke, 30 L. J. Ex. 135; 31 ib. 356 (mill gearing). (1720) MACHINERY — STATUTORY PROVISIONS. 97 held to apply, although the statutory duty had been neglected by the defendant {z). It was a matter of great doubt how far male adults were entitled to the benefit of these provisions (a). *The words of the statute are absolute, and it seems that [*145] it is not for the jury to consider whether the machinery was so dan- gerous as to require fencing (b), but that in all cases within the statute the machinery shall be securely fenced. Various penalties are awarded against persons employing work- men in dangerous employments by different statutes. Such are 35 &. 36 Vict. c. 76, 8. 51 (Mines Regulation Act) (c); 41 Vict. c. 12, s. 1 (Threshing Machines); 41 Vict. c. 16, ss. 5—9 (Factories). By the 41 Vict. c. 16 (d) (which came into operation on the 1st of January, 18/9), sect. 5, it is enacted that " with respect to the fencing of machinery in a factory the following provisions shall have effect: — " 1. Every hoist or teagle near to which any person is liable to pass, or to be employed, and every fly-wheel directly con- nected with the steam or water, or other mechanical power, (z) Caswell v. Worth, 25 L. J. Q. B. 121, mpra. See per Chaunell, B., Britton V. Gt. Western Cotton Co., infra. (a) See Coe r. Piatt, supra; and see the douht expressed by Cockburn, C. J., in Holmes v. Clarke, 31 L. J. Ex. 358. It should seem that although the ob- ject of the Act was to protect children, yet if an adult without negligence is hurt, (L fortiori, the machinery is more dangerous, and ought to be fenced; and therefore, as in Holmes v. Clarke, it is probable that where an adult is injured there has been a breach of the common law duty to fence. It seems illogical that an adult's right of action should depend upon whether women and children happen to be employed. Bramwell, B., in Britton v. Gt. Western Cotton Co., L. E. 7 Exch. 136, seemed to think that the 21st section of the first Act does not limit the duty of fencing to places where young persons are employed, ex- cept in the case of hoists and teagles (although it is submitted that the words referring to young persons govern the whole of the preceding words) ; and that the 4th section of the second Act only limits the duty to "mill-gearing;" and that the obligation as to other machinery is absolute, and applies equally to adults. This view of the section still left open the question whether, when an adult is injured by the want of fencing of "a hoist or teagle," or "mill-gearing," he could bring an action for negligence under the statute. This doubt has been removed by the new Act (see infra), which extends to every person, except in sect. 7, as to vats and pans, where the very same question might arise if an adult were to fall into a vat or pan. f J) Doel V. Sheppard, 25 L. J. Q. B. 124. (c) The following are some of the cases decided upon this Act or in connec- tion therewith:— Dickenson v. Fletcher, 9 L. R. C. P. 1; 43 L. J. M. C. 25 (owner not liable for servant not locking lamps) ; Howells %>. Landore Steele Co., 44 L. J. Q. B. 25; 10 L. E. Q. B. 62 (certificated manager a fellow-servant with workmen); Evans v. Mostyn, L. R. 6 C. P. D. 547; 47 L. J. M. C. 25 (who IS a "person interested"); Higham )>. Wright, L. R. 2 C. P. D. 397; 46 L. J. M. C. 223 (breach of special rules); Prentice v. Hall, 37 L. T. N. S. 605 (checkweigher misconducting himself by intimidation); Reg. v. Spon Lane Coll. Co. , L. R. 3 Q. B. D. 673 (colliery owner only answerable for what lies in his own power); Baker v. Carter, L. R. 3 Ex. D. 132; 47 L. J. M. C. 87 (non-resident part-owner excused after appointing certificated manager) ; Arkwrighti). Evana (owner of abandoned mine need not fence), 49 L. J. M. C. 82. id) The Factory and Workshops Act, 1878. 7 LAW OF NEG. (1721) 98 MACHINERY. [*146] whether in tbe *engine-bouse or not, and every pai't of a steam-engino and water-wheel, shall be securely fenced ; and " 2. Every wheel-race not otherwise secured shall be securely fenced close to the edge of the wheel- race; and " 3. Every part of the mill gearing shall either be securely fenced, or be in such a position, or of such construction, as to be . equally safe to every person employed in the factory as it would be if it were securely fenced; and " 4 All fencing shall be constantly maintained in an efficient state while the parts required to be fenced are in motion or use for the purpose of any manufacturing process. " A factory in which there is a contravention of this section shall be deemed not to be kept in conformity with this Act " (e). By sect. 6 provision is made for the mode of procedure to recover a penalty where sect. 5 does not apply, and where the inspector considers that machinery is not securely fenced. By sect. 7 it is provided that: "Where an inspector considers that in a factory or workshop, a vat, pan, or other structure, which is used in the process or handicraft carried on in such factory or workshop, and near to or over which children or young persons are liable to pass, or to be employed (/), is so dangerous, by reason of its being iilled with hot liquid or molten metal, or otherwise as to be likely to be a cause of bodily injury to any child or young person employed in the factory or workshop, he shall serve on the occupier [*147] of the factory or workshop a *notice, requiring him to fence such vat, pan, or other structure. "The provisions of this Act with respect to the fencing of ma- chinery which an inspector considers not to be securely fenced, and to be dangerous, shall apply in like manner as if they were re-en- acted in this section with the substitution of the vat, pan, or other structure for machinery, and with the addition of workshop ; and if the occupier of a factory or workshop fails constantly to maintain the fencing required under this section in an efficient state while such vat, pan or other structure is so filled or otherwise dangerous as aforesaid, the factory or workshop shall be deemed not to be kept in conformity with this Act" (g). By sect. 8, " where an inspector observes in a factory that any grindstone, worked by steam, water, or other mechanical power, is in itself so faulty, or is fixed in so faulty a manner as to be likely to cause bodily injury to the grinder using the same, he shall serve on the occupier of the* factory a notice requiring him to replace (c) By s. 81 this involves a fine not exceecTing £10. But the penalty in case of death or injury arising from not fencing is given by s. 82, and is a fine not exceeding £100, to be applied for the benefit of the injured party or his family, or otherwise as a Secretary of State determines. (/) See note (a), ante, p. 144. (g) See note (t), ante, p. 143. (1722) 99 such faulty grindstone, or to properly Hx the grindstone fixed in the faulty manner. " The provisions of this Act with respect to the fencing of ma- chinery -which an inspector considers not to. be securely fenced, and to be dangerous, shall apply in like manner as if they were re-en- acted in this section, with the necessary modifications. " Where the occupier of a factory fails to keep the grindstone mentioned in the notice or award in such a state, and fixed in such a manfier as not to be dangerous, the factory shall be deemed not to be kept in conformity with this Act" (g). By sect. 9, " a child shall not be allowed to clean any part of the machinery in a factory while the same is in *motion by the [*148] aid of steam, water, or other mechanical power. " A young person or woman shall not be allowed to clean such part of the machinery in a factory as is mill-gearing, while the same is in motion for the purpose of propelling any part of the manu- facturing machinery. " A child, young person, or woman, shall not be allowed to work between the fixed and traversing part of any self-acting machine while the machine is in motion by the action of steam, water, or other mechanical power. " A child, young person, or woman, allowed to clean or to work in contravention of this section shall be deemed to be employed contrary to the provisions of this Act" (i). Section Vil. Corporations performing Statutory Duties. Where a person is intrusted by statute, or charter, or prescrip- tion, with the execution of certain duties, the law demands of him that he should use something more than ordinary care in the per- formance of his duties. In most cases it is very reasonable that this should be so, for the person so intrusted has received from the Legislature some benefit which has induced him to undertake the burden of the duty ; and even where this may not be so, where a statute enjoins a person to do a thing, it would be absurd to sup- pose that the thing may be done anyhow, and yet the person not he liable, and it would be very reasonable to suppose that the law in- tends that the thing shall be done with more than ordinary care. (g) See note (t), ante, p. 143. (i) The occupier of the factory is liable to a fine under s. 83, and the parent under s. 84. (1723) 100 CORPORATIONS. *Iii the execution of a duty imposed by statute, a person [*149] is bound to use his best skill and diligence (k). He is bound not only to act bond fide, and to the best of his skill and judgment, but "he is bound to conduct himself in a skilful manner, and do all that any skilful person could reasonably be re- quired to do" (l). And it seems clear that he cannot excuse him- self, as in the case of a person failing to perform a non-statutory duty, by saying that he employed a competent contractor (m). Where there is a duty imposed by statute, it does not follow that the mere fact that it is not performed is negligence. If the omis- sion arises without any default on the part of th^ corporation, and the statute does not give any compensation for injuries arising from such omission, no action will lie (w). It does not, however, follow in all cases that where a statute gives a penalty a right of action is involved (ante, p. 140). Where a public statute orders the performance of a duty towards a class of persons under a penalty, and an individual is injured by the neglect of the corporation, the mere fact of the penalty does not prevent the action for the private damage, but the whole scope of the Act must be looked at, to see whether it was intended that the penalty should be the pnly punishment for the breach of duty (o). [*150] It was for along time doubted whether corporations *could be guilty of a wrong, although they might commit a breach of con- tract; but it is now clearly settled that a corporation may be guilty of a trespass or a tort (p); and it has been decided that where, either by prescription, or grant, or statute, a duty is imposed upon a corporation, and a matter of general public concern is involved, the public may enforce those duties by indictment, and individuals peculiarly injured by action (g). Where an imperative duty is imposed upon a corporation, and there is a breach of that duty, the public have remedies by indict- ment, mandamus, injunction, or action 'for the wrong done, without any allegation of negligence being necessary (r), but it is obvious that these matters are beyond the scope of the present work. But beyond these remedies, where there is an imperative duty imposed upon a corporation, and there is neglicence in the mode of perform- (k) Sutton V. Clarke, 6 Taunt. 29 ; Mersey Docks v. Gibbs, L. R. 1 H. L. 93, at p. 113 ; 35 L. J. Ex. 225. (l) Jones V. Bird, 5 B. & A. 837, per Bayley, J. (m) Gray v. Pullen, 5 B. & S. 970 ; 34 L. J. Q. B. 265 ; Hole v. Sittingbourne Ey., 6 H. & N. 488. (») Hammond v. St. Pancras, L. R. 9 C. P. 316 ; 43 L. J..C. P. Ii57. (o) It is submitted that this is all that can be collected from a comparison of the following cases: — Couch v. Steel, 3 E. & B. 402; Atkinson v. Newcastle Water- works Co. (C. A.), L. R. 2 Ex. Div. 441 ; 46 L. J. Ex. 77.) ; Blamires v. Lan- cashire & Yorkshire Ry. Co., L. R. 8 Ex. 283 ; 42 L. J. Ex. 182. (p) Per Lord Ellenborough, C. J., Yarborough ?). Bank of England, 16 East,?. (q) Mayor, &c., of Lyme Regis i>. Henly, 2 Bing. N. C. 241. (r) See Hammond v. Vestry of St Pancras, infra. (1724) 101 ing their duty, or negligence in omitting to perform it (s), then an action for negligence can be maintained against them (s), and more than ordinary care will be required of them (t). Where the duty is discretionary merely, the corporation, as we have seen ante, Chapter II. s. 5, are not liable for omitting to do what they are not bound to do ; but if they *undertake to [*151] perform a duty, or to do a work which they are not bound to do, they must exercise ordinary care. Where (as is sometimes the case) a corporation are charged with the duty of keeping its streets in repair, and of exercising a general supervision over them, they are bound to keep them free from all obstructions and defects against which due care can guard (m). Where the corporation require private drains to be run into the main sewer, they are bound to take care to keep such sewer open (x) ; but where the private owners are not so required, and have not in fact so used the sewer, and have taken no means to prevent an overflow, the corporation are not liable for damage from an overflow of their sewer (y). Where a railway company are bound by statute to put up a fence or gate upon a level crossing, it is negligence to omit to do so, and the company are liable for injury caused by such omission (z). Where a corporation are bound by statute to fence a footpath, they are liable for injury arising from their omission to do bo (a). It is not proposed to discuss all the cases in which it has been argued that the statute under which the corporation was acting, did not absolutely and imperatively demand the performance of the duty, but left it to their discretion. These cases turn upon the con- struction to be given to the particular section of the Act, or clause of the charter, in each case (6). *It should be observed that the duty maybe imperative as [*152] regards the public, and discretionary as regards individuals ; and (s) If there is no negligence shown in the omission the corporation are not liable. Hammond v. St. Pancras, 43 L. J. C. P. 157 ; L. R. 3 C. P. 316 (over- flow of a sewer) ; Dunn v. Birmingham Canal Nav., L. R. 8 Q. B. 42 ; 42 L. J. Q. B. 34 (canal overflowed into mine, lawful exercise of statutory powers, no neg- ligence); Broughton v. Mid. G. W. ot Ireland Co., 7 Ir. R. C. L. 169 (water turned into sewer stopped up ; statutory powers, no negligence) ; Jolliffe ». Wallasey Local Board, L. R. 9 C. P. 62 (duty to put down anchors, but buoys ought also to have been put to show the spot) ; Field v. L. and N. W. Ry. Co. (flow of water in land impeded). (t) Campbell on Negligence, p. 18. (u) See Highways, ante, Ch. II, s. 4, pp. 58, 59. "Wendell v. Troy, 39 Barb. 329 ; 4 Keyes, 261. (x) Child V. Boston, 4 Allen, 41 ; Shearman, s. 151. (y) Barry v. Lowell, 8 Allen, 127. (2) Williams v. G. W. Ry. Co., L. R. 9 Ex. 157 ; 43 L. J. Ex. 105 (child found with foot cut off ; no fence). See this matter more fully treated, post, Ch. V, Contributory Negligence. (a) Ohrby v. Ryde Commrs., 33 L. J. Q. B. 296. (6) See the following cases: — Ohrby ti. Ryde Commrs., 33 L. J. Q. B. 296; Wilson V. Halifax, 3 L. J. Ex. 44 ; L. R. 3 Ex. 11 ; Hammond v. St. Pancras, supra; Dormont v. Fumess Ry. Co., ante, p. 136; 11, Q. B. D. 496. (172:.) 102 CORPORATIONS. that words, in terms bestowing a power only, are, when the public interests require it, construed to impose an imperative duty. In the case of Julius v. Bishop of Oxford (c), the Lord Chan- cellor said : — " The words ' it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be nb right or authority to do. They confer a faculty or power, and .they do not of them- selves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, some- thing in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exer- cised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen's Bench to decide, on an application for a manda- mus. And the words ' it shall be lawful' being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists to exercise this power, to show in the circumstances of the case some- thing which, according to the principles I have mentioned, creates this obligation." He continues : — " Where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed [*153] out, and with regard to whom a *definition is supphed by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised." Lord Selborne said : — " The language (certainly found in authorities entitled to very great respect), which speaks of the words 'it shall be lawful,' and the like, when used in public statutes, as ainbiguous, and suscep- tible (according to certain rules of construction) of a discretionary or an obligatory sense, is in my opinion inaccurate. I agree with my noble and learned friends who have preceded me^ that the mean- ing of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. " They are potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power." (c) Julius V. Bishop of Oxford, 5 App. Cas. 214, 223. (1726) STREETS, ETC. 103 Lord Blackburn said : — " I do not think the words ' it shall be lawful' are in themselves ambiguous at all. They are apt words to express that a power is given ; and as, prima facie, the donee of a power may either exer- cise it or leave it unused, it is not inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it ; but if the object for which' the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf." The liability of the corporation must, as we have seen, be deter- mined upon a true interpretation of the statute or charter under which they are created. If th,ere is a duty *not only to [*154] make certain works, but also to take proper care and use reasonable sMll about the works so as to make them such as the statute or charter authorizes, persons injured by the negligence of the cor- poration to fulfill such duty may maintain an action against the corporation for negligence (d). The true interpretation of such statutes is that a duty is cast upon the incorporated body not only to make the works author- ized, but also to take proper care and to use reasouable skill that the works are such as the statute authorizes, or to take reasonable care that they are in a fit state for the use of the public who are to use them, (e), and from time to time to do what is necessary to pre- vent the recurrence of injury (/). The proper rule of construction of such statutes is that, in the absence of something to show a contrary intention, the Legislature intends that the body, the creature of lie statute, shall have the same duties, and that its funds shall be rendered subject to the same liabilities as the general law would impose on a private per- son doing the same thing (g). Aperson sustaining injiiry through works authorized by statute is in general only able to recover if he could have recovered for the injury done apart from the statute (h). Care should be taken to ascertain accurately in the first place what the duties of the corporation are : for they are only liable for a neglect of duty, not for an injury arising from something done or omitted to be done in respect of which they have no duty (i). (d) Mersey Docks v. Gibbs, L. R. 1 H. of L., p. 118, per Blackburn. J., citing Southampton Bridge Co. v. Southampton Board, 8 Ell. & Bl. 801, 812. (e) Mersey Docks v. Gibbs, supra, at p. 118. ( /) Geddis v. Proprietors of Bann Reservoir, L. R. 3 App. Cases, 438 ; see Truman v. h. B. & S. C. «y. Co., 25 Ch. D. 423. (g) Mersey Docks v. Gibbs, supra, at p. 110. (h) New River Co. v. Jobuson, 2 E. & E. 435. (i) Cracknell v. Thetforrl (Mayor of), L. R. 4 C. P. 629 ; 38 L. J. C. P. 353 (Commissioners' duty to maintain navigation, no duty to clean river so as to prevent floods) ; and'see Hodgson v. York (Mayor of), 28 L. T. N. S. 836 ; Col- lins V. Mid. Level Commrs., L, R. 4 C. P. 279 ; 38 L. J. C. P. 236 ; Gibson v. Preston (Mayor of), L. K. 5 Q. B. 222 ; 39 L. J. Q. B. 131 ; Hartnell v. Ryde Commissioners, 4 B. & S. 361 ; 33 L. J. Q. B. 39 ; White v. Hindley Local (1727) 10-i CCRPORATIOXS. [*155]' *If a corporation take toll (fc) from the public, and invite them, expressly or impliedly, upon their premises, they are liable, like individuals, for injury arising from the defective state of the premises (I), and therefore, as we have 6een(m), they also are bound to use more than ordinary care. Upon this principal railway com- panies who invite persons expressly or impliedly upon their premises are bound to take more than ordinary care (n). Upon the other hand, corporations are not liable for any injury which is the inevitable consequence of something done in the course of their duty, but only for such injury as would not have arisen but for their own negligence (o). Where a corporation have power to do some work for their own or the public benefit, it is their duty to see that it is carefully done, and, though under their powers they have the right to do an act which is a nuisance, they are bound to do all that they can to obviate the mischief (p). [*156] It has been held, after many conflicting decisions, and is *now settled law that corporations are liable for negligence, whether they derive any ultimate pecuniary benefit or not from the performance of the dutyimposed upon them (q). If a corporation have notice or the means of knowing (r) that the works or premises over which they have control are in a dafective state, and they negligently disregard the notice or negligently omit to avail themselves of their means of knowledge, they are liable in an action of negligence for injury caused by such disregard or omission (s). Where a corporation have a positive duty to perform it is no answer to an allegation of negligence upon their part that their Board, L. R. 10 Q. B. 219 ; 44 L. J. Q. B. 114 ; Dormontw. FurnessEy. Co., 11 Q. B. T). 496 ; L. R. W. N. April 21st, 1883, p. 72 ; Blackmore v. Vestry of Mile End Old Toivn, 51 L. J. Q. B. 496. (k) It is immaterial, as will be seen infra, whether they make on the whole a profit from the tolls, see ante, Ch. II. s. 5. (/) Winch V. Conservators of Thames, L. R. 9. C. P. 37S ; 43 L. J. C. P. 167 'Exch. Ch.) (towing path), if they were ignorant of the defect, or gave notice to those who paid toll of the defect they would not, it seems, he liable. (m) Ante, p. 131. (?i) Sec s 9 Ciirricrs. (o) Whitehouse v. Fellows, 10 C. B. N. S. 765 ; 30 L. J. C. P. 305 ; Ruck v. Williams, 3 H. & N. 308 ; Cracknell v. Corp. of Thetford, L. E. 4 C. P. 629 ; 38 L. J. C. P. 353 ; Dixon v. Metropolitan Board of Works, 7 Q. B. D. 418. (p) R. V. Kerrison, 3 M. & S. 526 ; Oliver v. N. E. Ey. Co., L. R. 9 Q. B. 409 ; 43 L. J. Q. B. 198. {q) Mersey Docks v. Gibbs, L. R. 1 H. L. 93 ; 35 L.'J. Ex. 225 ; Coe v. Wise, L. R. 1 Q. B. 711 ; 37 L. J. Q. B. 262. See also Ch. 111., sect. 2, snb-s. 1, Wharves, &c. (r) Penhallow v. Mersey Docks, infra; Stiles v. Cardiff Steam Nav. Co., 33 L. J. Q. B. 310 {scienter as to vicious dog). Mersey Docks v. Gibbs, supra. (s) Penhallow v. Mersey Docks, 30 L. J. Ex. 329, Ex. Ch. L. R. 1 H. L. 93 ; 35 L. J. Ex. 2-35; Pamaby v. Lancaster Canal Co., 11 Ad. & E. 223 ; Mersey Docks V. Gibbs, supra; and see Hammond v. St. Pancras Vestry, supra, p. 149. See also Shearman, s. 407 (1728) CORPORATION EMPLOYING OTHERS. 105 officers, servants, or agents were ordered to do it (t), nor that they have contracted with a competent person for the performance of such duty (m), but if they go farther and show that the work was done in a competent manner, and that the injury was caused by an accident or vis major they are excused (a;). In order to render a corporation hable for negligence the persons doing the negligent act must be appointed and removable by the corporation (,v) and subject to the control of the corporation (z). *But a corporation may render themselves liable for the [*157] acts of persons to whom they have given authority to do the par- ticular act in respect of which negligence is alleged, or if they sub- bequently adopt such act (a). Sometimes a corporation are bound by statute to employ a par- ticular person to do particular acts, and such person, although in some sense employed by the corporation, is in fact independent of their control, and acting under other authority. If that be so, of course the corporation are not liable ; but, as in the ordinary case of master and servant, the difficulty is one of fact, whether the person so acting is the servant of the corporation or not (6). Although in the execution of a statutory duty corporations can- not shelter themselves under the person whom they have employed to perform that duty, yet they are not liable, as it would seem, for a mere error of judgment by such person, if they have taken care to select a person of skill. Thus if a corporation assent to a particu- lar mode being adopted in executing a work, whether such mode is suggested by means of plans or otherwise, they are not liable, if they have taken due care to obtain skillful advice on the matter (c). The truth is in such cases there is no negligence in fact in any one, none in the selection of the mode, and none in the execution. If there is no negligence in the servant^ there is none in the master, if the servant is properly selected. But if the plan be negligently carried out, then the employers of such negligent servants are liable, although the plan might be good enough (U). In the case of Ruck v. Williams, it appears that commissioners had omitted to put up a flap at the mouth of a *sewer which [*158] (t) Scott V. Manchester, 2 H. & N. 204. (k) Grote v. Chester & Holyhead Ry. Co., 2 Ex. 251. As explained in Francis c. Cockerel], L. R. 5 Q, B. 501 ; 39 L. J. Q. B. 291. See Philadelphia Ey. Co. V. Anderson, 39 Am. Rep. 787 (defective drainage of embankment washed away l)y flood); see Shearman, s. 373 et seq., and see infra. (x) Grote r. Chester & Holyhead Ry., supra; G. W. Ry. of Canada i). Fa wcett, 1 Moo. P. C. N. S. 101. (y) Schinotti v. Bumstead, 6 T. R. 646. (z) Scott V. Manchester, supra. (a) Smith v. Birmingham Gas Co., 1 A. & E. 526. (6) Shearman, s. 138. (c) Sutton V. Clarke, 6 Taunt. 29. (d) See Grote v. Chester & Holyhead Ry. Co., 2 Exch. 251, as explained in Francis v. Cockerell, L. R. 5 Q. B. pp. 184, 501. See Thome v. London (Mayor of), L. E. 9 Ex. 163 ; 43 L. J. Ex. 115. (]72r.) 106 CORPORATIONS. had been in use there before. The specification did not mention the flap, except that it said that the new sewer must be " made tight." The contractor supposed he had done his duty by puddling the mouth of the sewer. It was held that the commissioners were liable (e). Where a corporation employ an independent contractor to exe- cute work, which it is the statutory duty of the corporation to per- form, the corporation are liable for injuries which arise as a natural consequence of the work ordered to be done having been done with- out proper safe-guards ; but they are not liable for the incidental negligence of the contractor and his servants during the process of carrying out such work, the mode of doing which is no part of the order of the corporation (/). Where a corporation have been sued and have paid damages by reason of the contractor's negligence in executing the work, they can recover against him, if his contract with them expressly or im- pliedly bound him to see that such 'negligence should not occur (gr), but such a stipulation does not exonerate the corporation in the first instance (h), unless, perhaps (i), if they made it absolutely part of the work to be done by the contract that a particular thing should be done, which, if done, would render the whole work a per- fectly harmless work, and such thing was not done. ^ A corporation erected baths and washhouses under 9 & 10 Vict. c. 74 The affairs of the baths, &c., were conducted by a committee, consisting of some of the members Of the corporation. The plain- [*159] tiff was injured by reason of the *improper construction of a drying machine, and it was held the corporation was the proper party to be sued (fc). The party bringing an action of negligence for the breach of a statutory duty must show that the duty was imposed for his benefit, and that he has an interest in its due performance (l). And where a statute imposes a duty to prevent a particular mis- chief, a person cannot Aake the neglect of such duty the founda- tion of an action in respect of injuries of a different character to those contemplated by the statute (m). (e) Ruck V. Williams, 3 H. & N. 308, 310. (/) Gray v. Pullen, 5 B. & S. 970 ; 34 L. J. Q. B. 265 ; Shearman, s. 142 ; Wharton, 279 ; Hill v. New River Co., 9 B. & S. 303 ; Bower v. Peate, L. E. 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 ; Hole v. The Sittingbourne Ey. Co., 6 N. & N. 488 ; 39 L. J. Ex. 81. (g) Shearman, s. 142, 419. (A) Bower v. Peate, supra. ((') See the judgment of the Court in Bower v. Peate, supra. (k) Cowley «. Sunderland, 6 H. & N. 565; 30 L. J. Ex. 127. U) Strong V. Campbell, 11 Barb. 135. (m) Gorris r. Scott, L. E. 9 Ex. 125. ■ (1730) NEGLECT OF DUTIES. 10( Section VIII. Neglect of Duties by Directors of Public Companies, Directors of a company are agents and in some respects the trus- tees of the company and its shareholders, and the company as prin- cipal is responsible for their acts just as in the ordinary case of principal and agent (n ) . But the agent is al so personally respon sible for his own negligence, and directors of companies are frequently sought to be made responsible for fraud, misrepresentation, or neg ligence where the company is insolvent, but the directors are per- sons of substance. Directors are not liable as agents to strangers dealing with the company by way of contract or otherwise; the company with whom the contract is made is the party liable to be sued (o). There can be no doubt, *I think, that they ought [*160] to show more than ordinary care towards the shareholders, for they are persons holding themselves out as capable of directing compli- cated affairs, and inviting persons to trust their money to the com- pany which they profess to direct; but I do not find any authority for such a proposition. They are unlike trustees, who undertake irksome duties for no pay or advantage, for they are always either paid or deriving some benefit or advantage from their position. There are numerous reported cases of actions against directors for misrepresentation or fraud; but it sometimes happens that the mis- conduct complained of may fall short of fraud, but yet may be a breach of duty for which an action will lie {p). There seems to have been some difficulty upon the question how far a bill in equity would lie against a director, unless for that crassa negligentia which equity regarded as equivalent to fraud {q) ; but. in a later case the Lord Chancellor said: "I certainly never in- tended to lay down (in Turquand v. Marshall) the strong proposi- tion that a person acting for another as his agent is not bound to use all the ordinary prudence that can be properly and legitimately expected from any person in the conduct of the affairs of the world, viz., the same amount of prudence which in the same cir- cumstances he would exercise on his own behalf " (r). I presume that this would be ordinary care; but there are in the same judg- ment many allusions to crassa negligentia, which would seem to f-how that something less than ordinary care is all that is required. It is, however, extremely difficult to deal with such terms as crassa « (n) Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259; 36 L. J. Ex. 147; Wilson V. Lord Bury, 5 Q. B. D. .527, per Brett, L. J. ; Fergiison v. Wilson, L. R. 2 Ch. 77; Ex parte Larkin, 4 Cli. D. 566. (o) Wilson V. Lord Bury, 5 Q. B. D. 526, .527, per Bret, L. J. (p) Stewart v. Austin, L. R. 3 Eq. 299; Ship v. Crosskill, L. R. 10 Eq. 73; Overend, Gumey & Co. v. Gurney, L. R. 4 Ch. 701. (q) Turquand v. Marshall, L. R. 4 Ch. 376; Overend, Gurney & Co. v. Gur- ney, supra. (r) Overend, Gurney & Co. v. Gibb, L. R. 5 Eng. & Ir. 480. (1731) 108 .DIRECTORS OF PUBLIC COMPANIES. negligentia used by any judge, unless we are informed what his [*161] particular views are with respect to that *phrase. If crassa negligentia means that the person guilty of it has been reckless and careless in an extraordinary degree, it means one thing; but if it means that the person pretends to skill, and has only exercised or- dinary care, it means quite another thing. The liquidator of a company may, it seems, sue the company for negligence, where the directors have made reckless advances, &c. («)• Wharton, in his learned work on Negligence, says (t) : " whatever be the consideration which induces a person to undertake the con- trol of another's aif airs, he is required, if there is confidence bestow- ed and accepted to show the diligence a good man of business is accustomed to show in the exercise of such a trust. A man hold- ing himself out to the public as a business man, capable of properly acting as a bank director, is liable for . culpa levis in not showing the diligence a good bank director should. What this diligence is, is of course determined in part by the charter of the bank, in part by general commercial law, in part by business usage " (m). Lord Eomilly, in giving -judgment in Turquand v. Marshall (x), said: " I am also of opinion that the other directors, who may not have examined the books, must be taken to be liable for all the con- sequences which would properly flow from the fact if they had been acquainted with the contents of them. It was their duty to be so acquainted, and it was a duty which they, had undertaken to perform by becoming directors, and therefore I am of opinion that they are liable for the falsity of the accounts." [*162] The duties and liabilities of directors was very much *dis- cussed in the case of the Joint Stock Co. v. Brown {y). The direc- tors of a bill -broking company had committed breaches of trust and done acts which were ultra vires. Some of them had knowingly committed such breaches, bat others had only negligently omitted to inform themselves of what was going forward and to protest against it. James, V.-C, said: "with regard to one of them (Mr. Gillespie), I have held that there was no sufficient evidence of his concurrence or connivance to make him responsible. I have, how- ever, thought it not right to give him his costs, although I dismiss him from the suit, because I think a man who is a director, and goes on as a director for months, when a transaction of this kind is going on is not justified in saying, ' I really did not pay the slight- est attention to it, I had a sort of vague notion of what was going on ; I was a paid director, but I left it to the other directors to at- (s) "Western Bank v. Douglas, Couvt of Sess. 22 D. 447 ; 24 D. 859. h) Wharton on Negligence, Book II. s. 510. («) The learned author cites Percy ?'. Millandon (20 Martin, 68) as an author- ity, but this case scarcely puts the duty so high. (:<:) Turquand v. Marshall (L. E. 6 Eq. 112, 130), was reversed on other points, L. R. 4 Oh. 376. [y) Joint Stock Co. v. Brown, L. E. 8 Eq. 381. * (1732) NEGLECT OF DUTIES. 109 tend to ; I did nothing. I took it for granted all was right.' I think he is entitled to this, that I cannot fix him with a liability, but I think it is not too much of a penalty for him to pay for his negligence, that he shall not have any costs of the proceedings which have been rendered necessary in this Court by proceedings of his co-directors which he took no pains to enquire into or inter- fere with." "With regard to another director (Mr. Brown), the learned vice- chancellor held that he was liable. He had disapproved of what was done, and had written a letter about it, and thought he had done enough, but it was held that he had neglected to perform his dnty by not resorting to some means of prevention; and another director (Mr. Bravo) was held liable for very similar reasons. It should seem that even Mr. Gillespie would have been liable in an action for negligence in not taking ordinary care. " Of course " (said James, V.-C), "it is quite clear that no company of this kind could be carried on if every *director were obliged to sign [*163] every cheque, and it is therefore required that the cheques should be signed by a certain number of persons for the safety of the com- pany. That implies, of course, that everyone of those persons takes care to inform himself, or, if he does not take care to inform him- self, is willing to take the risk of not doing so, of the purpose for which and the authority under which the cheque is signed; and I cannot allow it to be said for a moment that a man signing a cheque can say, 'I signed that cheque as a mere matter of form ; the secretary brought it to me; a director signed it before me; two clerks have countersigned it; I merely put my name to it'" (z). In Ranee's case (a), James, L. J., said at p. 118: — "If the directors, by placing unfounded reliance upon the rep- resentations of their servants or actuaries, had arrived at the con- clusion that they had made a divisible profit, this Court ought not, I say, to sit as a court of Appeal from that conclusion, although it might afterwards be satisfactorily proved that there were very great errors in the accounts which would not have occurred if they had been made out with greater strictness or with more scrutinising care. But no such account at all was made out. A mere cash ac- count or balance-sheet in such a company as this, presented in order to determine whether there had been a profit made, and for the pur- pose of declaring a bonus thereon, is, to my mind, within the mean- ing of Stringer's case (L. R. 4 Ch. 475) a fraudulent and delusive balance sheet. If a breach of trust" (and I presume a negligent act) " is committed by the directors, a director who joins in the act, although not being aware that such act is contrary to his duty, i.s equally liable with those who knew they were acting contrary to their (z) At p. 404. (a) Eanc&'s Case, L. E. 6 Ch. 104. (1733) 110 DIRECTORS OF PUBLIC COMPANIES. duty, for he ought to have made himself acquainted with his duties"(b). [*164] *In the Land Credit Co. v. Lord Fermoy (c), the Lord Chancellor said, "I am exceedingly reluctant in any way to exon- erate directors from performing their duty, and I quite agree that it is their duty to be awake, and that their being asleep would not exempt thom from the consequences of not attending to the busi- ness of the company Whatever may be the case with a trustee, a director cannot be held liable for being defrauded ; to do so would make his position intolerable." Upon the facts of that case the Court held that the matter had been csncealed from the director, and that he was not liable. If a company agree to pay fully paid-up shares in discharge of a debt, they must either do so in fact or register a contract under sect. 25; and if they do not they are liable in damages for negli- gence, and the fact that a shareholder has the contract in his hands and omits to register it is not contributory negligence as it seems id), but it seems very doubtful whether a shareholder, who is a sort of partner, can bring such an action, and whether he must not cease to be a shareholder before he can sue for damages (e). The IGSth section of the Companies Act, 1862 (/), enacts that where in the course of winding up it appears that a director has misapplied or become liable for monies, or been guilty of any mis- feasance or breach of trust, the Court may upon application com- pel him. to repay or contribute to the assets. Where the defendant company had been guilty of a wrongful act of omission in not registering the plaintiff's name in their books, [*165] and also of a wrongful act of commission *in declaring shares to be forfeited, it was held that both acts were the proper subject of an action {g). It seems that promoters of companies stand, in some respects, in a fiduciary relation towards the future company, and have duties towards it (see per Lindley, L. J. ) ; and it should therefore seem that a promoter may be liable in some cases for negligence at the suit of the company for a breach of such duty before the incorpora- tion of the company, bat there seems to be no precedent for such an action {h). (6) Grimes v. Harrison, 28 L. J. Ch. 823, 827 ; Joint Stock Discount Co. v. Brown, L. E. 8 Eq. 381. (c) Land Credit Co. ■;;. Lord Fermoy, L.R . 5 Ch. 770. See also, In re Denham & Co. 25 Ch. D. 752. (d) In re Government Security Co., Mudford's Claim, 14 Ch. D. 634 ; Great Australian Gold Co., Ex parte Appleyard, 18 Ch. D. 587. (e) Holdsworth v. City of Glasgow Bank, 5 App. Cas. 317. (/) 25 & 26 Vict. c. 89, s. 165. (g) Catchpole v. Ambergate Ey. Co., 1 El. & Bl. 111. There was no allega- tion of negligence, but generally of a wrong by which the plaintiff had suffered damage. (A) Emma Silver Mining Co. v. Grant, 11 Ch. D. 934. (1734) CARRIERS. Ill Section IX. Carriers. With the liability of a common carrier as a sort of insurer this book has nothing to do. He is in that capacity liable in any event, ex- cept the act of God (i) or the Queen's enemies, unless where the goods ai-e in their nature liable to extraordinary risks, a;nd are in- jured in consequence of such peculiar character, for then the com- mon carrier becomes liable only where he has been negligent (k). So, also, a common carrier is not an insurer after the goods have arrived at their destination. He then becomes liable only where negligence is shown (I). *Railway companies are, apart from statute law or special [*166] contract, common carriers, and subject to the like duties and privi- leges with ordinary common carriers (m), but further they are bound to carry for all persons upon equal terms (n), as well as upon reasonable terms. Carriers have been relieved by the Legislature in some degree from the extremely onerous obligations cast upon them by the common law ; and by the Carriers Act, 1830, it is declared that they shall not be liable for the loss of or injury to certain goods above the value of £10, unless their value be declared and an increased charge paid. Section 1 of the Carriers Act, 1830, provides as fol- lows : — " That from and after the passing of this Act no mail con- tractor, stage-coach proprietor, or other common carrier by land for hire, shall be liable for the loss of, or injury to, any article or articles or property of the descriptions following (that is to say), gold or silver coin of this realm, or of any foreign State, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or timepieces of any description, (0 As to what is the act of God, see Nugent v. Smith, L. R. 1 C. P. T>. 423 ; 45 L. J. C. P. 697. And in what cases it will excuse an act, see ante, Ch. I, Proximate Cause, p. 15, note. (*:) Blower v. G. W. Ey. Co., L. E. 7 C. P. 655 (animals by land); Kendal v. L. & S. W. Ry. Co., L. E. 7 Ex. 373 ; 41 L. J. Ex. 184 ; Nugent v. Smith, supra Canimals by sea); McDonald v. Highland Ey. Co., Court of Session, 3rd series, vol. xi. 614 (perishable goods). (l) Garside v. Trent Navigation, 4 T. E. 581 ; Bourne v. Gatliff;, 3 M. & G. 643; 11 CI. & Fin. 4.5; Crouch v. Gt. W. Ey. Co., 27 L. J. Ex. 345; Heugh v. L. & N. W. Ey. Co., L. E. 5 Ex. 51 ; Mitchell v. L. & Y. Ey. Co., L. R. 10 Q. B. 256 ; 44 L. J. Q. B. 107 ; Chapman v. G. "W. Ey. Co., 49 L. J. Q. B. 420 ; 5 Q. B. D. 278. As to goods by sea, see Wilson v. London, &c. Co., L. R. 1 C. P. 61 ; 25 & 26 Vict. c. 63, s. 67. As to when the tramntus is at an end and the carrier ceases to hold the goods as carrier, but holds them as agent of the con- signee, see In re McLaren, 48 L. J. Bk. (C. A.) 49. By special agreement, of course, the carrier may be agent for the consignee and not for the consignor. (m) Railway Clauses Act, 1845, s. 89, but there duties are in many respects regulated by the Railway Commissioners under the Regulation of Railways Act, 1873. (n) Parker v. Gt. Western, 7 M. & G. 253; Baxendale v. East. Co. Ey. Co., 4 C. B. N. S. 63 I Piddington v. S. E. Ey. Co., 5 C. B. N. S. 111. (1735) 112 CARRIERS. trinkets, bills, notes of the governor and company of the Bank of England, Scotland, and Ireland respectively, or of any other bank [*167] in Great Britain or Ireland, orders, notes, or *securities for payment of money, English or foreign, stamps, maps, writings, title-deeds, paintings, engravings, pictures, gold or silver plate or plated articles, glass, china, silks in a manufactured or unmanufac- tured state, and whether wrought up or not wrought up with other materials, furs, or lace [by 28 & 29 Vict. c. 94, this does not include machine made lace], or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire, or to accompany the person of any passenger in any mail" or stage-coach, or other public conveyance, when the value of such article or articles or property aforesaid, contained in such parcel or package, shall exceed the sum of ten pounds, unless at the time of the delivery thereof at the office, warehouse, or receiving-house of such mail contractor, stage-coach proprietor or other common carrier, or to his, her, or their book-keeper, coachman, or other ser- vant, for the purpose of being carried, or of accompanying the person of any passenger as aforesaid, the value and nature of such article or articles or property shall have been declared by the person or persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be ac- cepted by the person receiving such parcel or package." The Act applies only where the loss takes place upon land (o). The Act protects the carrier, notwithstanding the goods are being carried beyond their destination (p). [*1683 *It is not necessary that the declaration of value should be in any particular form (q). The declaration being made, the cus- tomer has done his duty, and if the carrier then chooses not to de- (o) Le Conteur v. London, Brighton and Sauth Coast Ey. Co., 35 L. J. Q. B. 40 ; L. R. 1 Q. B. 54 ; Baxendale v. Great East. Ey. Co., 4 Q. B. 244 ; 38 L. J. Q. B. 137. As to what is a loss, see Hearn v. London and S. W. Ry. Co., 10 Exch. 793 ; Wallace v. Dublin, &c. Ey. Co., 8 Ir. Eep. C. L. 341 ; Pianciani v. London and S. W. Ey. Co., 18 C. B. 22G. ip) Moritt V. N. East. Ry. Co., L. R. 1 Q. B. D. 302 ; 45 L. J. Q. E. 289, C. A. As to what goods are within the section the following cases may be con- sulted. They are taken in the order in which the words interpreted by them occur in the Act: — Le Conteur v. London and S. W. Ry. Ca., fnipra, ("time- pieces"); Bernstein v. Baxendale, 28 L. J. C. P. 265 ("trinkets"); Stoessiger d. S. East. Ry. Co., 3 E. & B. 549 ("bills, notes, or securities for payment of money"); Wyld v. Pickford, 8 M. & W. 443 ("maps"); Boys v. Pink, 8 C. & P. 361 ("engravings"); Anderson v. London and N. "West. Ry. Co., 39 L. J. Ex. 55; L. R. 5 Ex. 90 (" pictures"— frame) ; Owen v. Burnett, supra ("glass," large looking-glass) ; Hart v. Baxendale, 20 L. J. Ex. 338 ; Bernstein v. Baxen- dale, supra; Brunt v. Midland Ry. Co., 33 L. J. Ex. 187 ; Flowers v. S. East. Ry. Co., 16 L. T. 339 ("silks, &c."); Mayhew v. Nelson, G C. & P. 58 ("furs") Tread win «. Great Eastern Ey. Co., L. R. 3 C. P. 308 (" lace," and see 28 & 29 Vict. c. 94, ante, p. 167); the plaintiff's own waggon placed upon a railway truck was held to be a " i>arcel or package," where goods mthin the Act were packed in the waggon, Whaite v. Lancashire and Yorks. Ey. Co., 43 L. J. Ex. 47: L. E. 9 Ex. 67. (q) Bradbury v. Sutton, 19 W. E. 800; 21 W. E. 128. (1736) CARRIERS ACT. 113 mand the higher rate he may do so, and his liability rests as at common law (r). Section 2 provides that an increased rate may be demanded, and notices are to be put up in offices or warehouses by which customers are to be bound. Section 3 provides that carriers are to give receipts for such extra charges. By section 4 public notices are not to limit the common law liability of the carrier in respect of any other goods. Section 5 defines a receiving- house. Section 6 saves all special contracts ; but it has been held that the mere fact of the existence of a special contract not inconsistent with the provisions of section 1 does not prevent the operation of that section (s). By section 7 the extra charges may be recovered with the damages. By section 8 "nothing in this Act shall be deemed to protect any mail contractor, stage-coach proprietor, or other common carrier for hire from liability to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his or their *employ, nor to protect any such coachman, guard, [*169] book-keeper, or other servant from liability for any loss or injury occasioned by his or their own personal neglect or misconduct "(i). If the customer tenders a reasonable sum for the carriage of goods, it has been thought that the carrier cannot refuse to carry them (ii). He has no right to say that he will not carry them ex- cept under a special contract, however reasonable; at all events, where the goods are such as he professes to carry (x). (r) Behrens v. Great Northern Ry. Co., 31 L. J. Ex. 299. Is) Baxendale v. Great East. Ey. Co., L. R. 4 Q. B. 244; 38 L. J. Q. B. 137. (t) As to who is a servant within the meaning of this section, see Machu v. London and S. AV. Ry. Co., 2 Exeh. 415. It is unnecessary in a case where the statute is relied on to prove negligence if felony be proved, Great W. Ey. Co., V. Eimmell, 18 C. B. 575; 27 L. J. C. P. 201 ; Metcalfe v. London, Brighton and South Coast Ey. Co. , ib. 205. As to what is sufficient evidence of a felony, see Hojcev. Chapman, 2 Bing. N. C. 222; Great Western Ey. Co. v. Rimmell, supra; Metcalfe )'. London, Brighton and South Coast, supra; Vaughton r. London and N. AV. Ry. Co., L. R. 9 Ex. 93; 43 L. J. Ex. 75; McQueen v. Great West. Ry. Co., L. R. 10 Q. B. 569; 44 L. J. Q. B. 130. (it) And even being ready and willing is sufficient, see Pickford v. Grand Junction Ry. Co., S M. & W. 372. (x) Per Parke, B., in Carr v. Lancashire and York Ry. Co., 7 Exch. 707, and see the same Judge in Johnson v. Midland Ry. Co., 4 Exch. 367: I cannot find that any action has ever been brought on the strength of this dictum. The above case was tried in 1852, and the Railway and Canal Traffic Act allowing reasonable cijntracts was passed in 1854, and probably it would now be held that a carrier had a right to demand that a reasonable special contract should be made ; and this has been evidently assumed in several cases. Horn v. Mid- land Ey. Co., 42 L. J. C. P. 59 ; L. li. S. C. P. 131. Eailway companies may, by notice, refuse to carry animals except by special contract, Richardson v. N. E. Ry. Co., L. K. 7 C. P. 80. Drovers of cattle sometimes agree to travel at their own risk, McCawlay v. Fumess Ry. Co., L. R. 8 Q. B. 57 ; 42 L. J. Q. B. 4 ; Gallin v. London and N. W. Ry. Co., L. E. 10 Q. B. 212 ; 44 L. J. Q. B. 89 ; Hall V. N. E. Ey. Co., L. E. 10 Q. B. 434 ; 44 L. J. Q. B. 164. See, however, Munster v. S. E. Ey. Co., 4 C. B. N. S. 676 ; 27 L. J. C. P. 308, which was a case of a passenger offering bundles to be carried. The company made a rule that passengers were to see their luggage labelled, ^nd a rule that porters were 8 LAW OF NEG. (1737) 114 CARRIERS. [*170] *In dealing with the question of the liabilities of carriers, it must be understood that their liabilities might always be varied by express agreement, and that it is not our intention, for reasons already given (y), to discuss the effect of the different modes of limitation of liability which have from time to time been adopted. It is sufficient to say that in the case of railway companies, the practice of making contracts exempting them from all liability for negligence of any kind, became so frequent (z), that some restriction upon such contracts had to be placed by the Legislature (a), and only such contracts could thereafter be made as were just and rea- sonable (&), and signed by the party (c), and only certain damages recovered for injuries j(d) to certain animials (e), unless their value was declared. [*171] A great number of decisions have been given upon the *ques- tion whether a particular contract is just and reasonable. The decisions are not always reconcilable. Where the contract seeks to exclude all liability on the part of the carrier, and gives no op- tion to the consignor to pay a higher rate and reserve his rights, the contract is unreasonable (/); but where the consignor chooses to have his goods carried at a cheaper rate, and in consideration of that advantage agrees to waive his rights to hold the carrier liable, not to label bundles, and they refused to carry the bundles. It -n-as held they were bound to carry such bundles as were personal luggage. It was said that they could not so limit their common law liability ; but the Court seemed to entertain doubt. See p. 697 of the report as to whether they could not refuse to carry bundles which were not personal luggage. [y) See ante, p. 6. (z) Carriers used to post up notices to limit their liability^ and these were often held to be inoperative, because the party bringing the goods Avas unable to read, Davis r. Willan, 2 Stark. 280; or did not read, Kerr v. Willan, ih. 44; or the notice was in small type, Butler v. Hearne, 2 Campb. 415; or his attention was not drawn to it, Clayton v. Hunt, 3 Campb. 27; Walker v. Jackson, 10 M. & W. 173; see also cases as to luggage in cloak rooms, post, p. 177. (a) See sect. 7 of Railway and Canal Traffic Act, 1854, post. [b] As to what conditions have been considered just and reasonable the cases, infra, may be consulted. '(c) Peek V. N. Staff. Ry. Co., 11 H. L. Cas. 473; 32 L. J. Q. B. 241; Aldridge V. Great W. Ry. Co., 33 L. J. C. P. 161 (signature of agent). If consignor is setting up contract it is no answer to say he has not signed it, Baxendale r. Great East. Ry. Co., L. R. 4 Q. B. 244; 38 L. J. Q. B. 137. {d) Loss of \aluc from want of food is an "injury," Allday v. Great W. Ry. Co., 34 L. J. Q. B. 5. Whether loss of market is, quxrc, Beal v. S. Devon Ry. Co., 5 H. & N. 875; aff. 3 H. & C. 337; Hearne v. London and S. W. Ry. Co., 10 Exeh. 7D3. (e) Dogs are included, see Harrison v. London, Brighton and South Coast Ry. Co., 31 L. J. Q. B. 113. (/) Gregory ?;. West Midland Ry. Co., 33 L. J. Ex. 155 ; Brown v. Man- chester and Sheffield Ry, Co., 10 Q. B. D. 250 (no exception even for wilful misconduct); Booth v. N. E. Ry. Co., L. R. 2 Ex. 17:5 ; 36 L. J. Ex. 83; All- day V. G. W. Ry. Co., 34 L. J, Q. B. 5 ; 5 B. & S. 903 ; McMauus v. Lancashire and Yorkshire Ry. Co., 28 L. J. Ex. 353; Peek v. North Staffordishire Ry. Co., .32 L. J. Q. B. 241; M'Cann v. L. and N. W. Ry. Co., 31 L. J. Ex. 65. (1738) CARRIERS ACT. 115 such a contract is in general reasonable {g); but the option must be a practical one before a condition excluding all liability will be held reasonable (h); and it would seem that such a condition ex- tending to wilfol misconduct and to all liability whatever can never be reasonable (i), even if there be a practical option (k.) Exemptions from liability unless complaint of the loss was made at once (I) ; from liability for loss of market only, not loss gener- ally (m) ; from liability for everything except " gross negligence (interpreted to mean ordinary negligence) or fraud" (n) ; from liability in respect of goods damaged beyond the limits of the com- pany's railway where no reward is earned in respect of carriage on *the line where such loss occurred (o) ; from liability unless [*172] the value of the goods is declared where the exemption from liabil- ity does not include wilful misconduct (p), have all been held rea- sonable. Upon the other hand, the following conditions have been held unreasonable : — V condition not to be liable for packages insuffici- ently packed((7), not to be liable for packages charged as empties (/■). The words "at owner's risk" (s) and "the company accepting no responsibility" (t) have been held not to absolve the company from liability (u). With respect to the carriage of horses, it has been held, in ac- cordance with the principle above stated, viz., that where the con- tract excludes all liability, and gives no practical option to the con- signor, such a contract is unreasonable, that a condition that the owner of horses should take all risks, as the company will not be responsible for any injury or damage, howsoever caused, to live stock of any description, is unreasonable (x). A contract not to be liable for loss or damage to any horse or dog, unless a declaration of value is made, is reasonable if it be so construed that the company are still ((/) Lewis V. G. W. Ry. Co., 3 Q. B. D. 19.5; Simons v. G. W. Ey. Co., 2G L. J. C. P. 25. (h) Brown v. M. S. and L. Ey. Co. , supra, reversed on the facts, 8 Ap. Cas. 703. (i) Per Brett and Baggallay, L. JJ., in Brown w. M. S. andL. Ey. Co., supra. (k) Ashenden v. L. B. and S. C. Ey. Co., 43 L. T. N. S. 173. (0 Lewis V. G. W. Ey. Co., 29 L. J. Ex. 425 ; 5 H. & N. 867. (m) White V. G. W. Ey. Co., 2.J L. J. C. P. 158. (n) Beal v. South Devon Ey. Co., ?, H., & C. 337. (o) Aldridge v. G. W. Ey. Co., 33 L. J. C. P. 161. (p) Harrison v. L. B. and C. S. Ey. Co., 31 L. J. Q. B. 113. (q) Simons «. G. W. Ry. Co., 26 L. J. C. P. 25 ; Granton v. Bristol and Ex. Ey. Co., 30 L. J. Q. B. 273. (r) Aldridge v. G. W. Ey. Co., 33 L. J. C. P. 161. (s) D'Arc V. L. and N. W. Ey. Co., L. R. 9 C. P. 325 ; Eobinson v. G. "VV. Ey. Co., 33 L. J. C. P. 123 ; McCann v. L. and N. W. Ry. Co., 31 L. J. Ex. 05. (t) Martin ?;. G. In Pen. Ey. Co., L..E. 3 Ex. 9. (u) As to the meaning of an exemption from liability for "detention," see Gordon v. G. W. Ey. Co., 8 Q. B. D. 44 (held not to include wrongful refusal to deliver). (!■) McManus v. L. and Y. Ry. Co., supra; McCann v. L. and N. W. Ry. Co., supra; Gregory v. West Mid. Ey. Co., infra. (1739) 116 CARRIERS. to be held liable for wilful misconduct (y). The company cannot [*173] *exempt themselves from the duty of providing safe car- riage for the conveyance of horses, or shift the duty of examining into their soundness upon the consignor (z)^ By section 7 of the Railway and Canal Traffic Act, " every such company, as aforesaid, shall be liable for the loss of, or for any in- jury done to any horses, cattle, or other animals, or to any articles, goods, or things in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its ser- vants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability; every such notice, condition, or declaration being hereby declared to be null and void: Provided always, that nothing herein contained shall be construed to prevent the said companies from making such conditions with respect to the receiving, forward- ing and delivering of any of the said animals, articles, goods or things as shall be adjudged by the Court or judge before whom any question relating thereto shall be tried, to be just and reasonable: Provided always, that no greater damages shall be recovered for the loss of or for any injury done to any such animals beyond the sums hereinafter mentioned (that is to say), for any horse, fifty pounds; for any neat cattle, per head, fifteen pounds; for any sheep or pigs, per head, two pounds, unless the person sending or deliver- ing the same to such company shall at the time of such delivery have declared them to be respectively of higher value than as above mentioned, in which case it shall be lawful for such company to demand and receive by way of compensation for the increased risk and care thereby occasioned, a reasonable percentage upon the ex- cess of the value so declared above the respective sum so limited as aforesaid, and which shall be paid in addition to the ordinary rate [*174] of charge, and such percentage or increased *rate of charge shall be notified in the manner prescribed in the statute eleventh George Fourth and first William Fourth, chapter sixty-eight, and shall be binding upon such company in the manner therein men- tioned: Provided also, that the proof of the value of such animals, articles, goods, and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensa- tion for such loss or injury: Provided also, that no special contract between such company and any other parties respecting the receiv- ing, forwarding, or delivering of any animals, articles, goods, or things, as aforesaid, shall be binding upon or affect any such party, unless tho same be signed by him or by the person delivering such animals, articles, goods, or things respectively for carriage: Pro- vided also, that nothing therein contained shall alter or affect the rights, privileges, or liabilities of any such company under the said (y) Harrison v. L. B. and S. C. Ey. Co. , supra. (z) McManus D. L. and Y. Ey. Co., supra; Gregory v. West Mid. Ey. Co., 33 L. J. Ex. 155. (1740) RAILWAY TRAFFIC ACT. 117 Act of the eleventh George Fourth and first William Fourth, chap- ter sixty-eight, with respect to articles of the descriptions mention- ed in the said Act." The Railway and Canal Traffic Act extends to steam vessels, &c., wiere the railway company undertake the steam traffic under the 26 & 27 Viot. c. 92, ss. 30, 31. As to liabil- ities of railway companies during sea transit, see 31 & 32 Vict. c. 11; 31 & 35 Vict. c. 78, s. 12. Where an injury happened before the special contract under the section could be made, it was held that the owner could only re- cover the limited sum, for the section protects the carrier during the receiving as well as when the relation of carrier and customer is established (a). A suggestion has been made that notwithstanding the section (6), a carrier of goods above £10 undeclared would be liable for gross negligence (c), but that is clearly not the *law (d). [*175] Section 7 of the 18 & 19 Vict. c. 31, only applies to cases where neglect or default is proved, and does not apply to cases of mere accident (e). The measure of damages is the value of the goods at the place and at the time of delivery (/). Where special circumstances un- der which a contract is made are known to both parties, the carrier is liable for the loss which would ordinarily flow from those circum- stances (g), but not for a loss which could not fairly be contempla- ted by the parties, such as general loss of business, or profits or wages {h). The notice of the special circumstances in many cases leads to the inference that the carrier undertook to be responsible for the special damages; but, of course, that inference does not arise where the damages are not such as might be expected to flow from the circumstances (i). In ap action for trover in wrongfully refusing to deliver champagne which the plaintiff had bought of (a) Hodymau v. West Mid. Ey. Co., 33 L. J. Q. B. 233 ; aff. 35 L. J. Q. B. 85 (horse kicking girder). (6} S. 1, p. 166. (e) Owen v. Burnett, 2 Cr. & M. 353; per Vaughan, B, (d) Hinton v. Dibbin, 2 Q. B. 646. (e) Harrison v. L. B. & S. C. Ey. Co., 31 L. J. Q. B. 113. (/) O'Hanlan v. G. W. Ey. Co., 34 L. J. Q. B. 154; 13 W. E. 741; Rice v. Baxendale, 30 L. J. Ex. 371. Thus the carrier is liable for the falling of prices; Wilson V. L. & Y. Ey. Co., 30 L. J. C. P. 232; Borries v. Hutchinson, 34 L. J. C. P. 169; Williams v. Eeynolds, ib., Q. B. 221; Lord v. Mid. Ey. Co., 36 L. J. C. P. 170; Collard v. 8. E. Ey. Co., 30 L. J. Ex. 393; Simpson v. L. & N. W. Ey. Co., 45 L. J. Q. B. 182 (profit which might have been made at a particular show). (g) Hadleyi). Baxendale, 9 Exch, 341; Hales v. L. & N. W. Ey. Co., 32 L. J. Q. B. 292; Woodger v. Gt. W. Ey. Co., 36 L. J. C. P. 177; Corry v. Thames Iron Works, 37 L. J. Q. B. 68. (A) Crouch V. G. N. Ey. Co., 11 Exch. 742; Le Peinture v S. E. Ey. Co., 2 L. T. 170; Gee v. L. & Y. Ey. Co., 30 L. J. Ex. 11; Home v. Mid. Ey. Co., L. E. 8 C. P. 131 ; 42 L. J. C. P. 59 (boots for the French army, cessation of war). (i) See per Blackburn, J., in Home v. Mid. Ey. Co., 42 L. J. C. P. 59; L. R 8 C. P. 131. (1741) 118 CARRIERS. the defendant, the price at which the plaintiff had resold it was re- covered, although the defendant had no knowledge or notice of the purpose for which it was bought (fc). A question of considerable difficulty . often arises where a [*176] *railway company is forwarding goods to a destination be- yond its own line, and the goods are lost beyond its own line. Probably the difficulty arises from not considering accurately what the duty or contract is which the defendant company has under- taken to perform. If a carrier contracts to carry from A. (through B.) to C, that is a contract of carriage, and he is liable as a carrier all the way to C, although some other carrier may in fact be carry- ing the goods from B. to C. But if he contracts to carry goods from A. to B., and agrees to facilitate as far as he pleases the fur- ther transit of the goods to C, but says he will not undertake their carriage to C, then if they are lost between B. & C. he is not liable as a carrier (l). It is therefore an unreasonable condition in a con- tract to carry from A. to C , to say that the defendant shall under no circumstances be liable for loss between B. and C. (m) ; but it is a binding contract to carry from A. to B., and to assist in forward- ing to C, to say that the defendant shall under no circumstances be liable for loss between B. and C, for the latter part is not a con- tract to carry if the Act does not apply (n). Both the above-mentioned statutes apply to passengers' luggage (*')■ Railway companies are, it would seem, apart from the statute or special contract, insurers of passengers' luggage which they have [*177J taken under their control (p). The *quantity of luggage which a passenger is allowed to take with him without any extra charge being made, is regulated by the private Act of the particu- lar company; but when a passenger takes an ordinary ticket for himself, he is paying a part of the price of the luggage he is taking with him (q). (k) France v. Gaudet. L. E. 6 Q. B. 199. (l) Fowler!). G. W. Ry. Co., 7 Exeh. 699; Aldridge v. G. W. Ey. Co., 33 L. J. C. P. 161; Bristol & Exeter Ey. v. Collins, 7 H. L. C. 194. (m) Bristol & Exeter Ey. v. Collins, supra. (n) Fowler v. G. W. Ey. Co., and Aldridge v. G. "W, Ry. Co., supra (o) Cohen v. S. E. Ry. Co., L. R. 1 Ex. D. 217; 45 L. J. Ex. 298; infra, in C. A. (p) Macrow v. G. "W. Ry. Co., L. E. 6 Q. B. 612; Cohen v. S. E. Ey. Co L E. 1 Ex. D. 217; 2 Ex. D. 253; 46 L. J. Ex. 418, C. A. This is not expressly decided in the Court, of Appeal, but the case of Stewart v. L. & N. W. Ry. Co. in which the contrary was suggested, is overruled. (}) Cohen v. S. E. Ry. Co., supra. As to what is " passengers' luggage," see Gt. N. Ey. Co. V. Shepherd, 8 Exch. 30 (ivorv handles for sale) ; Cahill v 1. & N. W. Ey. Co., 10 C. B. N. S. 154; 13 C. B. is\ S. 818; 31 L. J. C. P. 271 (box labelled "glass"); Keys v. Belfast Ey. Co., 9 H. L. C. .'556; Phelps !' L & N. W. Ey. Co., 34 L. J. C. P. 259; Hudston v. Mid. Ey. Co., L. E. 4 Q. B. 366; 38 L. J. Q. B. 213 (child's rocking horse); Macrow v. G. W. Ey. Co., supra (linen). (1742) passengers' luggage. 119 It was held in one case that a passenger might agree that the luggage should be carried at his own risk (r), but it has been de- cided that the 7th section of the Railway and Canal Traffic Act ap plies, and that the company are liable (s), notwithstanding such agreement. In Rumsey u N. E. Ey. Co., the plaintiff took an ex- cursion ticket, the condition being tiiat no luggage should be taken; and he, in fraud of the company, took his portmanteau with him, and it was held that the company had a lien upon the port- manteau for the exti-a charge which the plaintiff would have paid in taking an ordinary ticket. Here the company had not undertaken to carry the plaintiff's portmanteau at all under the circumstances (t). When a passenger retains his own personal control over his own luggage the company are no longer insurers of its safety, but are liable only when negligence upon their part is proved (u). *The company's liability extends to the receiving andde- [*178] livering of the passenger's luggage to and from the carriage in which the passenger arrives or departs (x). If the passenger gives special directions as to labelling, &c. to a servant of the company, who thereupon undertakes the charge, the company are answerable for its safety (y), notwithstanding a notice to the effect that luggage must be left at the cloak-room (z). Where a passenger took a ticket and travelled on the Great West- ern line, and at a junction with the defendant's line his luggage was taken charge of by the defendants' servants and lost, the de- fendants were held liable, although there was no express contract with them (a). As warehousemen of luggage, railway companies are in a differ- ent position from that in which the law places them, whilst they exercise their duties as carriers. In the absence of any condition (r) Stewart !'. L. &N. W. Ey. Co., 33 L. J. Ex. 199 (excursion train.) (s) Cohen i'. S. E. Ry. Co., supra. A passenger may agree to travel at his own risk, because the Railway Act only applies to goods, see post, p 183. (t) Rumsey v. N. E. Ry. Co., 32 L. J. C. P. 244. That railway companies have a lien upon luggage for unpaid fares, see Wolf r. Summers, 2 Camp. 631 ; Wallis v. L. & S. W. Ry. Co., L. R. 5 Ex. 62 ; 39 L. J. Ex. 57. («) Talley v. G. W. Ry. Co., L. R. 6 C. P., 44 ; 40 L. J. C. P. 9. JBergheim v. Gt. Eastern Ry. Co., 3 C. P. D. 221. The mere fact of the luggage being placed by a porter in the carriage with the passenger does not show that the passenger has reassumed his control ; see Richards v. L. B. & C. Ry. Co. , 7 C. B. 839; see also Kentc. Mid. Ry. Co., L. R. 10 Q. B. 1 ; 44 L. J. Q. B. 18 (chang- ing Irom one station to another luggage not taken into control of second com- pany, passenger booked through ; see Mid. Ry. Co. r. Bromley, 17 C. B. 372. where passenger had not booked through). Where Inggaste is received by the company as the luggage of the servant, but it turns out to be his master's, who is following by another train, the company are not liable for the loss ; Beecher V. G. E. Rv. Co., L. R. 5 Q. B. 241 ; 39 L. J. Q. B., I'^a. (x) Agrell V. L. & N. W. Ry. Co., 34 L. T. 134 ; Richards v. L. B. & S. C. Ry. Co., 7 C. B..839 ; Butcher v. L. & S. W. Ry. Co., 16 C. B. 13. (y) Agrell v. L. & N. W. Ry. Co. , supra. (z) Lovell V. L. C. & D. Ry. Co., 45 L. J. Q. B. 476. (a) Hooper v. L. & N. W. Ey., Co., 43 L. T. N. S. 570. (1743) 120 CAKEIEES. limiting their liability, they are liable (to the extent of the injury done) for ordinary negligence, as in the case of an ordinary bailee for reward (6). Ware-housemen come within what Lord Holt calls the second sort of bailees, and are bound to take reasonable care [*179] *only (c). With respect to passengers' luggage deposited in a cloak-room, the railway companies always endeavour to attach, special conditions to this contract of bailment. The conditions must be reasonably shown to be present to the mind of the passen- ger, or, at all events, the circumstances must be such as to lead to the inference that he must have known of the conditions (d). If the jury think that the circumstances were such as to lead to the inference that the passenger had not reasonable notice that there were any conditions in existence he would not be bound, but if they find the contrary and that the passenger did not choose to read them, he would be bound (e). Carriers of passengers are not insurers, but are only liable where negligence is proved (/). It seems that the driver of a stage-coach ought to inform the passengers of any danger of the road, so that they may have the option of alighting (g). A person who lets out carriages is not an insurer against all de- [*180] fects ; but he is an insurer against all defects which *care and skill can guard against, and his duty is to supply carriages as perfect for the purpose as care and skill can render them. Some- thing more than ordinary care and attention is required. The ex- pression often used of " reasonably fit " is ambiguous. It denotes something short of " absolutely fit," but the difference is not great The duty of railway companies, as carriers of passengers, is to take due care (including in that term the use of skill and foresight) (i), and they seem bound to take more than ordinary care by reason of the danger to which passengers are exposed in travelling at a (6) Ante, p. 25. (c) Searle v. Laveriek, L. R. 9 Q. B. 122. (d) Watkins v. Eymill, 10 Q. B. D. 178. (e) Van Tol v. S. E. Ry. Co., 12 C. B. N. S. 75 ; 31 L. J. C. P. 241 (ticket condition on back) ; Parker v. S. E. Ry. Co., L. R. 2 C. P. D. 416, C. A. ; 46 L. J. C. P. 768 ; Henderson v. Stevenson, L. E. 2 Sc. App. 470 (ticket, on face "see back"); the defendant was acting in his capacity as carrier, not ware- houseman in this case. Harris v. Gt. W. Ry. Co., L. R. 1 Q. B. D. 515 ; 45 L. J. Q. B. 729 (ticket, on face " subject to conditions on other side"). In the last two cases the plaintiff knew there was writing on the back, but did not know or believe there were any conditions, and he was held not bound ; but see the recent case of Burke v. S. E. Ry. Co., 49 L. J. C. P. 107 ; L. R. 5 C. P. D. p. 1 ; Watkins r. Rymill, sujira (repository ticket, referring on face of it to conditions) ; see also other cases as to notices of conditions of carriage, p. 172. (f) Redhead v. Mid. Ry. Co., L. R. 4 Q. B. 379 ; 38 L. J. Q. B. 169 ; Ex. Ch. Harris v. Costar, 1 C. & P. 636 ; White r. Boulton, Peake, 81 ; Christie v. Griggs. 2 Campbell, 79 ; Crofts v. Waterhouse, 11 Bing. 319 (stage coaches). (g) Dudley v. Smith, 1 Camp. 167. (A) Hyman r. Nye, 6 Q. B. D. 685. (i) Redhead v. Mid. Ry. Co., supra. (1744) TORT OR CONTRACT. 121 great speed, and without any power to avoid or mitigate any dan. ger which may arise. This duty arises out of the contract to carry between themselves and the passenger, and is superadded by the law to the contract. The passenger, upon being injured by the breach of this duty, may elect to sue in the form of tort or of contract, but the foundation of the action is the contract (k). This conti-act seems to be made by the fact of the passenger being lawfully within the carriage, and it is immaterial whether he himself negotiated the contract or paid the fare (I). But, where a servant has taken a railway ticket for himself and sustains injuries by reason of the company's negligence, the master cannot sue, because the tort arises out of a contract to which the master is not a party, and there is no duty towards the master (m); but, qiwere, whether the master could sue if he had taken the ticket *himself ; probably not unless he had given notice to the r*181] company that he was paying for the conveyance of his servant. But where the servant who has taken a ticket from one company has been injured by the wrongful act of another company with whom neither master nor servant has contracted, the master may sue (n). It should seem that this last case did not turn on a question of negligence, there being no duty to be done on the part of such other company ; but the act of such other company was regarded as a mere trespass, and the master sued for loss of services occasioned by such trespass. The servant was injured by the train of another company (the defendants) running into his train. It must be owned that it is not easy to see why, in justice, the railway company in Alton v. Midland Railway Company were less liable because they had contracted to carry safely, than if they had not contracted. It seems, however, to follow logically enoiigh if the distinction between contracts and torts where a duty is undertaken is to be maintained. This question has received further illustration from two recent cases. In Fleming v. The Manchester, Sheffield, and Lincolnshire Railway Company (o), which was an action for "not safely and securely carrying " goods, it was held that the action was sulistaDtially founded in contract within the meaning of the County Court Act (p), so that the plaintiff having accepted £12 paid into court, was not entitled to costs. In Foulkes v. Metro- (k) Alton «. Mid. Ey. Co., 34 L. J. C. P. 292 ; 19 C. B. N. S. 213. (/) Marshall r. Y. & N. Ry. Co., 11 C. B. 6.35 (master took ticket for servant) ; Austin V. G. W. Ry. Co., L. E. 2 Q. B. 442 ; 36 L. J. Q. B. 201 (mother took child over age without ticket). (m) Alton V. Mid. Ry. Co. supra ; see Ames ik Union Ry. Co., 19 ^m. Eep. 426. (») Berringer v. Gt. East. Ry. Co., 48 L. J. C. P. 400 ; 4 C. P. D. 163 Lopes; J. (o) Fleming v. M. S. & L. Ey. Co., 4 Q. B. D. 81, C. A. ; Tatton v. G. W. By. Co., 2 E. & E. 844, must be considered overruled by this case. (^ ) 30 & 31 Vict. c. 142, s. 5. (1745) 122 CARRIERS. [*182] politan District Eailway Company (g), however, *the plain- tiff, on alighting from one of the defendants' carriages, was injured by reason of the carriage being unsuited to the platform. Grove, J., thought that "the defendants having invited or knowingly permit- ted the plaintiff to enter their carriage, by that alone undertook to carry him safely, and that they had also invited him by putting up a notice and by other circumstances, that they were therefore bound to keep their carriages afid means of descent in a reasonable and proper state of safety, and that the mere fact that the ticket was issued by the South Western Railway Company, which, in the absence of anything else, might be evidence of a contract on which the jury ought to act, does not necessarily exempt the defendants from any contract, if a contract is needed in the case; but, at all events, does not exempt them from the liability which they under- take when they receive a person into a carriage which is under their control." The learned judge cites the case of Marshall v. York, Newcastle and Berwick Eailway Company (r), and the expression used by Jervis, C. J. : "Upon what principle does the action lie at the suit of the servant (who had taken no ticket) for his personal suffering? Not by reason of any contract between him and the company, but by reason of a duty implied by law to carry him safely." Williams, J., in that case said that "an action of this sort is, in substance, not an action of contract, but an action of tort against the company as carriers." In Austin «. Great Western Eail- way Company (s), which was a case where a woman took a ticket for herself, but honO, fide omitted to take one for her child, over age, who was injured, Cockburn, C. J., Lush and Shee, J J., rested their [*183] judgments on the contract being entire to carry both *mother and child ; but Blackburn, J. , rested the case on the fact of the child being a passenger, which raised the implied duty to carry him safely. It must be owned that the cases are conflicting; they may possibly be explained on the ground that when the parties have entered into a contract with respect to the duty to be undertaken, they in sub- stance, intend to rely upon the contract and the incidental duties which the law superadds; but if the parties have not entered into any agreement upon the matter, their original duties remain un- varied, and a breach of such duties is a tort. But, if this be so, it seems that great injustice may be done. Practically, a passenger is bound to take a ticket, that is, to make a contract. If, therefore, he is injured, but not beyond £20, he cannot recover costs, notwith- standing he brings his action in " tort," for in substance it is " con- ( q) Foulkes V. Met. Dist. Ey. Co., L. E. 4 C. P. D. 267 ; 48 L. J. C. P. 555. The decision in Foulkes v. Met. Ey. Co. was affirmed in the Court of Appeal, 5 C. P. D. 157. Bramwell, L. J., said that there was a breach of "the duty which the law imposes upon all, viz., to do no act to injure another," and Bag- gallay and Thesiger, L.JJ., emphatically rest their judgment on a breach of duty and not of contract. (r) Supra. (s) Austin D. Great Western Ey. Co., L. E. 2 Q. B. 442 ; 36 L. J. Q. B. 201. (1746) RAILWAYS. 123 tract," whereas if he did not take a ticket (bona fide without fraud), he might recover damages and costs. The payment of any money by the plaintiff to the defendant is not an essential part of the contract to carry out of which the duty- arises (0- A railway passenger may agree to travel at his own risk, and so exclude the question of negligence (u). In actions by passengers for injuries sustained in a collision, the question has fi-equently been raised whether the defendants are lia- ble in consequence of the persons proximately causing the injury not being their servants or under their control. These questions arise where another *company has running powers over [*184] the defendants' line, or the defendants have running powers over theirs (x). A railway company may be negligent either in respect of its du- ties as owner of the line, or of the carriage, or of both, or in respect of its user of them as a carrier. Where the accident arises from negligence in the defandants as owners of the line or carriage, there is not much difficulty; but where the injury arises from negligence in the defendants in respect of their duty as carriers, the question becomes one of considerable difficulty; for as carriers they may be using the line or the carriage of another company, and they have undertaken a duty towards the plaintiff by contracting to carry him, to see that he is carried carefully as regards the other company as well as themselves. On the other hand, they cannotbe expected to be answerable for the negligence of the other company over whose line, carriages and servants, they have, perhaps, qo control. It seems that their duty really is to do their best to be careful as re- gards themselves and as regards the other company, but that they are not answerable for the negligent acts of the other company against which they could not guard, any more than they are for the negligent acts of strangers (y). The plaintiff travelled with a ticket issued by the London, Chatham and Dover Railway Com- pany upon the defendant's line, over which the L. C. & D. Co. (t) Marshall v. Y. & Newcastle Ry. Co., 11 C. B. 655; G. N. Ey. Co. r. Harri- son, 10 Exch. 376 (newspaper reporter travelling free). Austin v. G. W. Ry. Co., L. R. 2Q. B. 442; 36 L. J. Q. B. 201 (child travelling free). («) Macaulay v. Furness Ry. Co., 42 L. J. Q. B. 4; L.R. 8 Q. B. 57. But the same does not hold as to goods; D'Arc v. L. & N. W. Ry. Co., L. R. 9 C. P. 325 ; but where goods were sent at a lower rate, and there was an exception as to "wilful misconduct," it was held that the goods were at the owner's risk, Lewis V. G. W. Ry. Co., 3 Q. B. D. 195. See ante, p. 171. (x) Wright V. Midland Ry. Co., L. R. 8 Ex. 137; 42 L. J. Ex. 89. (y} Blake v. Gt. W. Rv. Co., 7 H. & N. 987; 31 L. J. Ex. 346 (locomotive en- gine left on line by other company); Thomas v. Rhymney Ry. Co., L. R. 6 Q. B. 266; 40 L. J. Q. B. 89 (train in the way of defendant's train on the line); Wright f. Midland Ry. Co., 42 L. J. Ex. 89; L. R. 8 Ex. 137 (train of Midland run into by train of another company) ; Birkett v. Whitehaven Junction Ry. Co., 4 H. & N. 730; 28 L. J. Ex. 348 (defect in switch in Maryport Ry.); Bux- ton V. N. E. Ry. Co., L. R. 3 Q. B. 549; 37 L. J. Q. B. 258 (cattle on line of another company); Foulkes v. Met. Ry. Co., supra. (1747) 124 CARRIERS. had running powers. He was injured through the negligence [*185] of the defendant's porter in shutting a carriage door *at a station belonging to the defendants, but on a platform exclusively allotted to the L. C. & D. Co. It was held that the defendants were liable for the negligence of their porter (&). Baggallay, L. J., said: "In respect of that portion of the line over which they had running powers, they had the same duties and were under the same obligations relating to their passengers as they had or were under in respect of the portion of the line which was their own." Use of Premises. With respect to the use by railway companies of their premises, in their capacity as carriers (a), it has in some cases been held that there was no negligence and in others that there was, and it is diffi- cult to extract from them any principle whatever; and in truth it is obvious that each case must mainly depend upon its own particular circumstances (6). It may perhaps be gathered that in general where an accident happens by reason of something unusual be- ing done at that moment (c) by the company there has been negli- [*186] gence; but where an accident happens in the *usual and every-day course of events (d), and there has been nothing done by the company varying that course (e), which course has existed for {z) Self u L. B. & S. C. Ey. Co., 43 L. T. N. S. 179. (a) The question of the use by them of their premises not in their capacity as carriers, but as corporations using their own property, naturally arranges itself under the head of "Corporations," pp. 151, 155, or of "Owners of Prop- erty " pp. 130, 133. (6) See per Kelley, C. B., in Eose v. N. E. Ry. Co., 34 L. T. 763, per Coleridge, C. J., in Eobson v. N. E. Ey. Co., L. E. 2 Q. B. D. 85 ; 46 L. J. Q. B. 50, C. A. (c) Shepperd v. Mid. Ry. Co., 25 L. T. 879 ; 20 W. E. 705 (ice on platform); Nicholson v.h.&Y. Ey. Co., 34 L. J. Ex. 84 ; 3 H. & C. 534 (hamper taken from train and placed by side of line) ; Crafter v. Met. Ry. Co. , L. E. 1 C. P. 300 ; 35 L. J. C. P. 133 (slipping on steps nosed with brass ; see also Davis v. L. B. & S. C. Ry., 2 F. &F. 588); Hogan v. S. E. Ry. Co., 28 L. T. C. P. 271 (over-crowded platform) ; Jackson v. Metropolitan Ry. Co. , L. R. 10 C. P. 49 ; 44 L. J. C. P. 83 (over-crowded platform, insufficient porters) ; overruled on ap- peal, L. R. 3 App. Cas. 193 ; 47 L. J. H. L. 303 ; see also Wilkinson v. Fairie, 32 L. J. Ex. 73 ; 1 H. & C. 633 (carman went into dark passage and fell down staircase, a different thing from a hole or trapdoor. (d) Cornman v. East. Co. Ey. Co., 29 L. J. Ex. 94 ; Blackman v. L. B. & S. C. Ey., 17 W. R. 769 (weighing machine in usual place); Crafter d. Met. Ry. Co., 35 L. .T. C. P. 132 (brass bound steps worn smooth) ; Daniel v. Met. Ry. Co. L. R. 5 H. L. 45 (girder falling — Lord Hatherly remarks the workmen employed had never known an accident before this time); Owen v. G. "W. Ry. Co., 46 L. J. Q. B. 486, per Lush, J. (market train, as usual, too long to pull up at plat- form, unusual accident); Toomey v. L. B. & S. C. Ry. Co., 27 L. J. C. P. 39 ; 3 C. B. N. S. 146 (urinal and lamp room close together, plaintiff injured by going into latter by mistake) ; Gt. "W. Ry. Co. v. Davies, 39 L. T. N. S. 475 (cow in- jured by insufficiency of catch to gate on level crossing which had been safely used for nine years); see also Patchall v. Irish, N. W. Ey. Co., 6 Ir. E. C. L. 117. (e) See, post, as to " Presumptions," Ch. VI. (1748) RAILWAYS — USE OF PREMISES. 125 some time and from which no accident has happened, then the pre- sumption is that there is no negligence on the part of the company, but either the injury is a pure accident, or the plaintiff has only himself to blame. In Watkins v. G-. W. Ry. Co. (/), two learned judges, Denman and Lopes, JJ., differed as to whether there was any evidence of negligence in placing a plank across a staircase so as to catch the head of a passenger descending. It would seem the question ought to have been left to the jury as well as the question of contributory negligence. There was the fact of an unusual state of the premises arguing negligence on the part of the defendants, and there was evidence that the plaintiff was so careless as not to look where she was going, and her own negligence may have been the proximate cause. There does not appear to have been any appeal in this case (g). So, too, railway companies ought to guard against unusual crowds *of which they have notice, such as those occasioned [*187] by excursion trains (h). Where a plank and roll of zinc fell upon a passenger through a roof upon which a man was moving about for the purpose of seeing to repairs, it was held, in the absence of any evidence to show that the man was negligent, or that the defendants knew, or had the means of knowing that the roof was insecure, there was no evi- dence of negligence at all (i). Railway companies, either expressly or impliedly, invite per- sons, who are intending travellers (k), upon their premises and into their carriages, and in so doing put them off their guard by a sort of warranty of safety ; and they are, therefore, bound to use towards such persons something more than ordinary care; and there seems to be in the case of railway companies an additional reason for the exercise of great care in the fact of the greatness of the danger, and the inability of the passenger to help himself (T). Where the defendants made a bridge for more convenient access from one platform to another, and a passenger was injured in crossing by reason of the bridge being badly built, the defendants (/) Watkins i>. Gt. "W. Ey. Co., 46 L. J. 817. Ig) Abbott V. Freeman, 35 L. T. N. S. 783, reversing 34 L. T. N. S. 514 (horse being shown at Aldridge's kicked the plaintiff). (A) Hogan V. S. E. Ey. Co., 28 L. T. N. S. 271 (person pushed off platform by uncontrolled crowd). (j) Welfare v. L. B. & S. C. Ey. Co., L. E. 4 Q. B. 693 ; 38 L. J. Q. B. 241. A.S to having the means of knowing whether things are in a safe condition or not, see Withers v. North Kent Ey., 27 L. J. Ex. 417 ; International Ey. Co. V. Halloren, 37 Amer. Rep. 744. {k) And even those accompanying passengers to see them off (I suppose rea- sonably doing so). (l) How far the absence of signals, &c. is misleading has been the subject of conflicting decisions in America. Chicago Ey. Co. v. Robinson, 8 111. App. 140; Cohen v. Eureka Ey. Co., 14 Nev. 376; Pennsylvania Ey. v. Eighter, 42 N. J. L. 180. See contra, Bunting v. Central Pacific Co., 14 Nev. 351. (1749) 126 CAKRIERS. were held liable (m), upon the ground that the passenger was in- [*188] vited to use the bridge. So *where the company have al- ways allowed passengers to cross by a particular path it is equiv- alent to an assurance that they may safely use it (n). And where there is a station unprovided with a footbridge and the com- pany by their acts invite persons to cross the rails, they are bound to take more than ordinary care (o). When notices have been put up forbidding persona to cross the line, but the company's s^irvants have allowed the notices to be dis- regarded, such notices are no answer to an action for negli gence (p), but where there is no sufficient evidence of the com pany's acqtiiescence in the passenger's crossing the line, it is the passenger's own negligence if he crosses the line being aware of a bridge provided on purpose for crossing (g). Carriers of passengers are not liable for any injury occasioned by anything extraneous to the work in which they are engaged, and as to which they had no reasonable ground for supposing that ordinary and proper care had not been taken by those persons whose duty it was to take such care (r). They are bound to see that everything under their own control is in full and complete and proper order (s). So they are bound to construct their works so as to resist all ordinary storms, &c., which may reasonably be expected, though they may be of rare occurrence (t). [*189] *Proprietor3 of coaches and carriages are responsible to those whom they invite to enter their vehicles (u). And it has been held that the proprietor is liable for latent de- fects (x) provided the defect could have been discovered on ex- (hi) Longmore v. G. W. Ry. Co., 19 C. B. N. S. 183 ; 35 L. J. C. P. 135, note. There was a safe bridge further off by which the plaintiff might have crossed. (a) See Rogers v. Rhymney Ry. Co., 26 L. T. N. S. 1879. (o) Gird wood v. N. B. Ry. Co., Court of Session, 4th series, Vol. IV. p. 115. (p) Dublin, W. & W. Ry. Co. v. Slattery, L. R. 3 App. Cas. 1155. It seems that if the company acquiesce in persons crossing tlieir line promiscuously at all points they are not bound to protect such persons, especially if persons gen- erally cross at a particular point, Harrison v. N. E. Ry. Co., 29 L. T. N. S. 844. This case does not appear to have been cited on the argument in Dublin, W. & W. Ry. Co. V. Slattery. (q) Wilby v. Midland Ry. Co., 35 L. T. N. S. 244 Q. B. ; Clarke v Mid. Ey. Co., 43 L. t. N. S. 381. ()•) Daniel v. Met. Ry. Co., L. E. 5 Eng. & Ir. App. 45. (s) Ih. (t) G. W. Ry. Co. of Canada v. Fawcett, 1 Moo. P. C. N. S. 101. (u) Bremner v. "Williams, 1 C. & P. 414 (coach just repaired and examined two journeys before accident, held liable) ; Curtis v. Drinkwater, 2 B. & Ad. 169 (improper construction of coach, omission of iron railing between luggage and passenger); Templeman v. Haydon, 12 C. B. 507 (shafts of cart breaking); "Welch V. Laurance, 2 Chit. 262 (chainstay of cart); Israels )i. Clarke, 4 Esp. 259 (overloading a coach) ; so also are ferrymen, see Willoughby v. Horridge, 12 C. B. 742. (x) Sharp v. Gray, 9 Bing. 457. As to latent defects, see Randall v. New- some, ante, p. 27. (1750) RAILWAYS — MANAGEMKNT OF TRAIN, ETC. 127 amination, or could have been prevented in the course of manu- facture (y). So also railway companies are liable for the faulty construction of carriages into which they invite travellers, except as to latent undiscoverable defects (z). Use of Train and Carriages. There have been numerous decisions upon the question whether the fact of a train not pulling up at a platform, coupled with other circumstances, is negligence or not. Those other circumstances are different in each case, and are the turning points in each deci- sion (a). In these cases, as in all others, the question of negli- gence is *entirely one for the jury (6). There is probably [*190] no negligence in the mere iact of a train not pulling up at a plat- form, provided due care is taken that no injury arises from it ; but if, from want of such care, or if, by some action of the defendants connected with such stopping, the plaintiff is led into danger, the defendants are liable for negligence. If, in fact; the stopping is of a misleading character (c), that is to say, of such a character as to mislead a reasonable person (d), the defendants will be liable. This may depend upon how long the train stops (e) ; whether it is dark or light (/) ; whether there is an express or implied invitation to alight (g) ; or other such like circumstances. (v) Redhead 21. Mid. Ey., L. R. 2 Q. B. 412 ; 4 Q. B. 379; 38 L. J. Q. B.169; Richardson v. Gt. Eastern Ry., L. R. 1 C. P. D. 342. (z) See Redhead v. Mid. Ry. Co., supra; Richardson v. G. East. Ry. Co., supra,- see also Stokes v. East. Co. Ry.. 2 F. & F. 691 ; Ford v. L. & S. W. Ry. Co., 2 F. & F. 730 (not bound to use every possible precaution which specula- tive science may suggest) ; but where a company had tested a wheel, but after- wards did not test it for some time, the jury having found that they ought, a rule for a new trial was refused, Manser v. East. Co. Ry. Co., 3 L. T. N. S. 585. (a) See remarks by Kelly, C. B., in Rose v. N. E. Ey. Co., infra; and by Coleridge, C. J., in Robson r. N. E. Ry. Co., infra. (b) Bridges v. North London Ry. Co., infraj Robson v. N. E. Ry. Co., infra, though, upon a mere scintilla of evidence, a judge would non-suit ; Met. Ry. Co. V. Jackson. See ante, p. 14, n. (c). (e) As to the effect of putting the plaintiff off his guard, see the judgments in D. W. & W. Ry. Co. v. Slattery. L. R. 3 App. Cas. 1155. (d) Davey v. L. & S. W. Ey. Co.. 12 Q. B. D. 70. e) Cockle v. S. E. Ry. Co., L. R. 7 C. P. 321; 41 L. J. C. P. 140; Bridges v. L. & N. W. Ry. Co., L. R. 7 H. L. 215; 43 L. J. Q. B. 131; -VVeller v. L. B. & S. C. Ey. Co., L. R. 9 C. P. 126; 43 L. J. C. P. 137; Robson v. N. E. Ry. Co., L. R. 2 Q. B. D. 86: 46 L. .T. Q. B. 50; Rose v. N. E. Ry. Co., L. R. 2 Ex. D. 248: 46 L. J. Ex. 374; Nichols v. Gt. Southern Co., 7 Ir. C. L. 40; 21 W. R. 387. (/) Proeger v. Bristol & Ex. Ry. Co., 24 L. T. 1U5; Cockle v. S. E. Ry. Co., supra ; Weller v. L. B. & S. C. Ry. Co., supra. (g) Foy V. L. B. & S. C. Ry. Co., 18 C. B. N. S. 225. (The mere calling out of the naine is not of itself a sufficient invitation; see per Lord Hatherley in Bridge-SJ). N. L. Ry. Co., supra; and see Lewis i'. L. C. & D. Ry., infra); "Wel- ler V. L. B. & S. C. Ey. Co., supra. (In this case all three elements calculated to mislead were present — it was dark, there was an express invitation, and the (1751) 128 CAKRIERS. If there is no misleading — if, for instance, the plaintiff exercises his own discretion in the matter, and in broad daylight chooses to f*191J jump from the carriage rather than *run the chance of being carried on, or the trouble of insisting upon the train backing, then the company are not liable (h). It should seem that a railway company is not bound to ha-ve a platform as long as any of its trains, but is only Ijound to do what is reasonable in that respect (i). Akin to the question of negligence, in overshooting the platform, is that of opening and shutting of doors ; and again the main ques- tion is, whether the plaintiff has been misled or not. If, from the position of affairs induced by the defendants, the plaintiff' could reasonably suppose that he could safely descend from, or ascend to the carriage, or place his hand between the door-jamb, then the de- fendants have been guilty of negligence. Here again, also, the cir- cumstances decide tbe question, as, for instance, was it dark at the time (&), had the passenger fairly entered the carriage before the door was shut (l) or not (m). Thus, also, it is misleading for the company not to keep the carriage doors properly fastened whilst the train is in motion (n), or, it seems, when standing still (o). In one case, where the door of a carriage flew open three times, and the plaintiff, in trying to shut it the fourth time, fell out and was in- jured, it was held that the company were not liable, for that, al- [*192] though they were negligent, the "*damage was not the neces- sary or natural result of such negligence, but that the plaintiff, to whom the incovenience of the open door was slight (as the train would stop in three minutes), and the danger of trying to close it great, had by his own act contributed to the accident. Brett, J., seemed reluc'^antly to acquiesce in this decihion, and remarked upon it in Gee v. Metropolitan Railway Co., supra. This case seems fairly to illustrate the difficulty of deciding, as a matter of fact, whether there is negligence or not. One would have thought that train stopped for a reasonable time, as if for alighting. ) L. & N. W. Ry. Co. V. Hella-vvell, 26 L. T. N. S. 557 (porters called out, " all out for Hudder-slield, " and opened doors, held negligence); see also Gill v. G. E. Ry. Co., 26 L. T. N. S. 945. • (h) Sinerv. G. W. Ry. Co., L. R. 4 Ex. 117; 38 L. J. Ex. 67 (see, however, the observation of Brett, L. J., in Robson r. N. E. Ry. Co., on the above case); Lewis V. London, Chatham & Dover Co., L. R. 9 Q. B. 66; 43 L. J. Q. B. 8 (names called out, train stopped temporarily and then backed, station well known, no misleading). (/) See per Lush, J., Owen j'. Gt. W. Ry. Co., 46 L. J. Q. B. 486. (it) Fordham v. L. B. & S. C. Ry. Co., L. R. 4 C. P. 619 ; 38 L. J. C. P. 324. (I) Richardson v. Met. Ry. Co., 37 L. J. C. P. 176 ; Maddox v. L. C. & D. Ry. Co., 3.^ L. T. N. S. 458 C. P.; but see Coleman v. S. E. Ry., 4 H. & C. 699 (boy of twelve years of age) ; Jackson v. Met. Ry. Co. , ante, p. 185. (m) Fordham v. L. B. & S. C. Ry. Co. , supra. '• (n) Gee v. Met. Ry. Co., L. R. 8 Q. B. 161 ; 42 L. J. Q. B. 105. (o) Richards v. Gt. E. Ey. Co., 28 L. T. 711. (1752) INNKEEPERS. 129 the danger of leaving a door of a train open was very great, and the danger of trying to close it very small (p). Upon the other hand, where the defendants have done nothing to mislead the plaintiff, but he chooses of his own motion to put himself in danger, of course the negligence is his own (q). The mere fact of a window slipping down is not evidence of negligence, as it seems (r). It is very doubtful whether not whistling before coming to a station where persons are in the habit of crossing on the level would be evidence of negligence (s), but it rather seems that the duty of whistling is to be inferred or not inferred from the circumstances of the case (t). As to not fencing level crossings for the protection of cattle, see Owners of Eeal Property, Ch. II, s. 2, p. 48 ; and as to level cross- ings, as respects passengers crossing, see Owners of Real Property, Ch. m, s. 2, pp. 130, 133. ♦Section X. [*193] Neglect of duties by Innkeepers. An innkeeper is not an insurer of the goods of his guest, but is liable for negligence (m), and is bound to take something more than ordinary care of his guest and his guest's goods (x). It is in his character as innkeeper that he is required to exercise such diligence; but if he is a mere bailee (y), or a mere lodging-house keeper (z), he would only be liable for ordinary negligence. The fact of the loss of the goods is primd facie evidence of neg- ligence (a). The act of God, or the Queen's enemies, is, as in the (p) Adams v. L. & Y. Ey. Co., L. E. 4 C. P. 739 ; 38 L. J. C. P. 277. (}) See Met. Ey. Co. v. Jackson, L. E. 3 App. Cas. 193 ; 47 L. J. C. P. 303 ; and see post, Ch. V, Contributory Negligence. (r) Murray v. Met. District Ey. Co., 27 L. T. 762. ' (s) Dublin, W. & W. Ey. Co. v. Slattery, L. E. 3 App. Cas. 1164, per Lord (t) Davey v. L. & S. "W. Ey. Co. 12 Q. B. D. 70 ; Ch. V, Contributory Negli- gence ; see Gray v. N. E. Ey. Co., 48 L. T. N. S. p. 904. (m) Calye's Case, 1 Sm. L. C, 5th ed. 102; Dawson v. Chamney, 5Q. B. 164. As to innkeeper's liability to persons coming to the inn, but not to deal with him, see Oxford v. Prior, 14 Weekly Eep. 611; and as to a temporary call for refreshment, see Bennett v. Mellor, 5 T. E. 273. (x) Campbell, s. 55. (y) Hyde v. Mersey Nav. Co., 5 T. E. 389; "Williams v. Gesse, 3 Bing. N. C. 849. (z) Bac. Ab. Inns, C. 5; Parkhurst v. Foster, Salk. 388; see Daasey v. Eich- ardson, 3 E. & B. 144; Holder v. Soulby, 8 C. B. N. S. 254. (a) i)awson v. Chamney, 5 Q. B. J64. 9 LAW OF NEG. (1753) 130 INNKEEPEKS. case of carriers at commou law, a good defence (b). So, also, is the contributory negligence of the plaintifP (c). The innkeeper is liable for the theft of his servant from a guest [*194] at his inn (d), but not for burglary or robbery with *violence, it is said, where he can show that the force which occasioned the loss was truly irresistible (e). The liability of the innkeeper, as such, will continue, it seems, for some reasonable time after the departure of a guest who has left his goods to be sent for with the landlord's consent (/) ; and it is certain that his liability continues during the temporary ab- sence of his guest (gf). The 26 & 27 Vict. c. 41, s. 1, enacts that no innkeeper shall ba liable to make good to any guest any loss of or injury to goods ' or property brought to his inn (h) to a greater amount than the sum of £30, except in the following cases : (1) where such goods or property shall have been stolen, or lost, or injured, through the wil- ful act, default or neglect of such innkeeper, or any servant in his employ: (2) where such goods or property shall have been deposited expressly for safe custody with such innkeeper (i). [*195] * Section XI. Neglect of duties by Physicians, &c. It cannot be predicated of any act that it is per se negligence; it is only so if it is a breach of duty (k). The first question therefore is, what is the duty which the person had to perform ? Some per- (J) Eichmond v. Smith, 8 B. & C. 9; and so is "inevitable accident," see Wharton, s. 678, 553. and as to act of God, see ante, p. 165, note («). (e) Farn worth o. Paekwood, 1 Stark. 249; Burgess ti.' Clements, 4 M. & S. 306; Armistead v. Fuller, 17 Q. B. 261; Richmond v. Smith, 8 B. & C. 9; Kent V. Shuckard, 2 B. and A. 803. The guest must himself have used ordinary care, see Cashill v. Wright, 6 E. & B. 891 ; see also Oppenheim v. White Lion Hotel Co., L. R. 6 C. P. 515; 40 L. J. C. P. 231. (d) See Morgan v. Ravey, 6 H. & N. 2'35; and see Calye's Case, 8 Co. 32. (e) Jones on Bailments, 96. Various other authorities are cited to prove that an innkeeper is not liable for a loss of his guest's goods by burglary, &c. , in Wharton, s. 677, but they do not appear to bear out the text. (f) See per Brown, C. J., in Adams v. Clem, 41 Ga. 67. (g) Bather v. Day, 2 H. & C. 14. (h) Not being a horse or other live animal, or any gear appertaining thereto, or any carriage. (i) There is a proviso that the inkeeper may require the goods to be deposited in a sealed box, and by s. 2 he is not entitled' to the benefit of the Act if he re- fuses to receive the "goods for safe custody, or by s. 3, if he does not cause a copy of the 1st section of the Act to be put up in the inn. Such copy should be a correct copy, see Spice v. Bacon, L. E. 2 Ex. D. 463 C. A. ; 46 L. J. Ex. 713. (S) As we have seen, ante, p. 2. (1754) PHYSICIANS, ETC. 131 sons have more difficult duties to perform than others. If they neglect those duties they are the more to blame, because they are bound to bring more skill and care to their execution; but, on the other hand, the duties being more difficult, they may more easily fail notwithstanding the utmost care. When due allowance has been made for the difficulty of performing the duty, any negligence which has prevented its performance becomes of a grave character, because by undertaking to perform the difficult duty the performer has undertaken to use superior care and skill. The question is, has the high duty which has been undertaken been reasonably ful- filled (l) ? It is also to be borne in mind that in the case of medical men not only is the dutj^ difficult, but the consequences of neglect may be disastrous. It was observed by Lord Ellenborough that "more than an ordinary degree of skill was necessary for a surgeon who undertakes to perform surgical operations, which is shown by the case in Wilson (in); something more than the farrier who undertakes to cure a horse "(n). Physicians could not at common law recover their fees (o) unless there was an undoubted special contract (p). *But now by [*196] the 31st section of the 21 & 22 Vict. c. 90, they can sue, and they' need not prove any contract (q). A surgeon, or a physician acting as such, might always sue for his fees (r). It is said that a 'physician or surgeon who acts gratuitously ia only liable for gross negligence. By the Roman law the undertaking of the performance of something was called " ■maudatum," and it would be immaterial that it was done gratuitously, for the Eoman law said, if you undertake to do a thing you must take ordinary care about the doing of it (s). The English law, on the other hand, says that in consideration of my trusting you with the doing of the thing you impliedly promise me to do it, and so j'ou create a duty to do it (t), and you must take ordinary care at the least. So that both the Roman and English laws say that ordinary care must be taken in the case of gratuitous mandate, or, in other words, that a physician acting gratuitously is liable for ordinary negligence, at the least. But it has been felt that a physician acting gratuitously is still a person who professes to use skill, and that if he does not exercise the skill which he ought to have he is guilty of a grave breach of his duty; and because it is a general rule that a person who is unpaid is not liable except for gross negligence, lawyers have (/) See anie, Ch. I, p. 1.3. (m) Slater v. Baker, 2 Wils. ,359. (n) Seare v. Prentice, 8 Ea.st, 352. (o) Chorley v. Bolcot, 4 T. E. 317. ( ») Attorney-General v. Royal College of Physicians, 30 L. J. Ch. 757. (g) Gibbon r. Budd, 32 L. J. Ex. 182. Any college of physicians may, how- ever, make bye-laws restraining the members from suing, (r) Battersby v. Lawrence, Car. & Mars. 277. (g) Wharton, s. 493; Camp. s. 8, ante, p. 11, note (y). (<) Coggs V. Bernard, 1 Sm. L. C. 177. (1755) 132 PHYSICIANS, .ETC. called tliis want of skill, gross negligence; and so it has come to be said that a physician who acts gratuitously is only liable for gross negligence, whereas he is liable for showing want of skill. In truth the word " gross " does not here mean anything more than that it would be ordinary negligence in another person, but that, in a person who should be skilful, ordinary negligence may be called "gross." [*197J *A surgeon is not an actual insurer ; he is only bound to display sufficient skill and knowledge in his profession (u). He does not undertake to perform a cure, or even to use the highest possible skill, but a proper and competent degree of skill (x). An unqualified person who acts as a doctor is of course equally bound to bring competent skill to the performance of the duty which he has undertaken (y). The cases in which mere negligence has been established against professional persons, such as solicitors, doctors, &c., do not appear to be very numerous, and two reasons may be given for this. In the first place, the taking of care is almost their raison d'Stre, while to many other persons the taking of care may be an impediment to their business ; and in the second place, and as a consequence from the above mentioned reason, when they are negligent; such negligence amounts in general to fraud or intentional neglect. In the case of doctors such matters have become the subject of inves- tigation in the criminal CDurts where death has'ensued (z). A medical man having once undertaken a case cannot desert it without reasonable cause, jiist as a solicitor. cannot without good cause abandon the suit of his client (a). Where the ground for the allegation of negligence is a general [*198] want of that skill which a medical man undertakes *to pos- sess, the defendant may give evidence of general skill ; but where there is no doubt of his general skill, and the ground for the alle- gation of negligence is that in the particular case he showed a want of skill, evidence of general skill will not (it is said) be re- ceived (b). (tt) Per Tindall, C. J., Hanke v. Hooper, 7 C. & P. 84. (x) Lanphier v. Phipos, 8 C. & P. 475 ; Eich v. Pierpont, 3 F. & F. 35. In a case at Nisi Prius, Perionowski w. Freeman, 4 F. & F. 982, Cockburn, C. J., is reported to have said that medical gentlemen who give their services gratui- tously were not to be made liable for negligence for which they were not per- sonally responsible. (Nurses gave too hot a bath to a patient in a hospital.) (y) Ruddock v. Lowe, 4 F. & F.«519 ; Jones v. Fay, ib. .525. (2) See R. V. St. John Long, 4 C. & P. 398, and the rest of the cases collected in Russell on Crimes, 5th ed. vol. i. p. 664, et seq. (a) "Shearman on Negligence," s. 441 ; see Hoby v. Built, 3 B. & Aid. 349 (solicitor abandoning case). (b) "Shearman on Negligence," s. 442. In Scare «. Prentice, 8 East, 348, no evidence was given of general want of skill, but the evidence relied on was that of negligence in the particular case which the 'jury negatived and the Court would not disturb the verdict although the judge had misdirected the jury that they could not Inquire into the want of skill. (1756) SOLICITORS. 133 Section XII. Neglect of duties by Solicitors. Solicitors, like physicians, evidently undertake to bring to the duties which they have to perform something more than ordinary care, for they are persons of skill and knowledge and, like phy- sicians, undertake matters of the very highest difficulty and impor- tance. It is clear that ordinary neglect where so great care is demanded becomes very grave, and, in the language of some of the [judges, is "gross negligence" (c). Upon the other hand, as the duty is most difficult, it is not every error or want of success that is to be attributed to negligence, and where it has been attempted to make a solicitor liable for some error which any careful man might have fallen into, the judges have said that solicitors are only liable for "gross negligence" (d). As has been said before (e), a high duty has been undertaken *which, upon the other hand, is a difficult one, and the [*199] question is, has it been reasonably fulfilled ? A solicitor is liable for the negligence of his agent (/), partner (gr), or clerk (h). The obligation of the solicitor is towards his client, and not towards a stranger, to whom he is not responsible for erroneous advice (i). He is liable although his services are rendered gratuitously (fc) though (it is said) only for gross negligence (l). A solicitor is bound to exercise a reasonable amount of skill in the selection of a safe investment for his client, although acting gratuitously (m), and it is said that an omission of such skill is gross negligence (n). (c) See ante, p. 12, note (c), as to the phrase " gross negligence." (d) Laidler v. Elliot, 3 B. & C. 738, and the cases there cited ; Elkington v. Holland, 9 M. & W. 659. (e) Ante, Physicians. (f) Simons r. Rose, 31 Bea. 11. (g) Norton v. Cooper, 3 Sm. & Giff. 375 ; see Dnndonald v. Masterman, L. R. 7 Eq. 504 ; 38 L. J. Ch. 350 ; Bickford v. D'Arcy, L. R. 1 Ex. 554 ; 35 L. J. Ex. 202. (h) Floyd V. Nangle, 3 Atk. 568 ; Prestwick v. Foley, 18 C. B. N. S. 806 ; 34 L. J. C. P. 189. (i) Fish V. Kelley, 17 C. B. N. S. 194 ; if he undertakes to act for any person without authority he is liable to that person for any injury which arises from his conduct ; Westaway v. Frost, 17 L. J. Q. B. 286, and even to the defendant against whom he proceeds ; see Hubbard v. Phillips, 13 M. & W. 702 ; Andrews V. Hawley, 26 L. J. Ex. 323. (k) Donaldson v. Holdane, 7 a. & F. 762. (l) " Shearman on Negligence, " s. 215 ; but it is not so said in the case above cited. Possibly a jury might be induced to look with less severity upon the conduct of a solicitor who acted gratuitously. In the case above cited Lord Brougham said, "His conduct in volunteering his services does incline one to think that the liability he incurred in point of law is somewhat hard upon him ; but still I cannot doubt, he is liable," and accordingly costs were not found against him. (m) Bourne v. Diggles, 2 Chitt. 311 ; Craig v. Watson, 8 Beav. 427. (») Shields*. Blackbume, 1 Hy. Bl. 159. (1757) 134 .. SOLICITORS. When a solicitor has accepted his client's retainer, he is bound to prosecute the matter intrustel to him to its termination. He is not bound, indeed, to proceed if he cannot upon request obtain his fees or security for them, and if he gives his client reasonable notice of his intention to throw up the retainer (o). [*200] *Generally speaking, the retainer of the solicitor is at an end when judgment is recovered (p); but it may be renewed, and the attorney will then retain his power to bind his client by a com- promise (q). So if, after judgment, he is authorized to do his best to obtain the fruits of the judgment he has control over the process of execution, and may consent to the withdrawal of afl. fa. (r). He may also accept payment of the debt by instalments, but he has no implied authority to enter into an agreement to postpone execu- tion (s). A solicitor acting bond fide and reasonably, and not contrary to his client's direct commands {t), may compromise a suit {u). ThB client is not bound to show that he would have won his cause but for the negligence of the solicitor. It is sufficient i:^ he shows negligence operating to produce the loss of the cause {x). Where an action is brought by a solicitor for his costs, he must of course prove his case, i. e., he must show affirmatively that he has fairly, carefully, and honestly discharged his duty (y). [*201] *The question of what in each particular case amounts to negligence is not instructive, and the cases are collected together in a note (z) for the purposes of reference. (o) Wadsworth v. Marshall, 2 Cr. & J. 665 ; Hoby v. Built, 3 B. & Ad. 350 ; Van Sandau v. Browne, 9 Bing. 402. {p) Flower v. Eolingbroke, 1 Str. G39 : Brackenburg v. Pell, 12 East. 588; Macbeath v. Ellis, 4 Bing. 578. It is said a solicitor is not bound to move for anew trial upon a point of law, nor to institute new collateral suits without special instructions. Shearman s. 227, citing Hastings v. Halleck, 13 Cal. 203 ; Pennington v. Yell, 6 Eng. (Ark.) 212. (g) Butler v. Knight, L. E. 2 Ex. 109 ; 36 L. J. Ex. 66. Ir) Levey v. Abbott, 4 Ex. 588. (s) Lovegrove v. White, L. R. 6 C. P. 440. h) Pray v. Voules, 1 El. & El. 839. (t() Prestwick 4i. Foley, 34 L. J. C P. 189. As to counsel's power to com- promise a suit, see Straus v. Francis, L. E. 1 Q. B. 379 ; 3.3 L. J. Q. B. 133. (x) Godefroy v. Jay, 7 Bing. 413. The solicitor may show in answer that there has been no damage ; but even then the plaintiff is, as it seems, entitled to a verdict for nominal damages. See the case above cited, and Marzetti v. Williams, 1 B. & Ad. 415, and the cases as to sheriffs, post, p. 210. (y) Allison v. Eayner, 7 B. & C. 441. (z) Brumbridge v. Massey, 28 L. J. Ex. 59 ; Hayne r. Ehodes, 8 Q. B. 342 ; Hopgood V. Parkin, L. E. 11 Eq. 74 ; Cooper r. Stephenson, 21 L. J. Q. B. 292 ; Watts V. Porter, 3 E. & B. 743 (cases of mortgage) ; Taylor v. Gorman, 4 Ir. Eq. Eep. 550 (particulars of sale) ; Potts v. Button, 8 Beav. 493 (expenses of conveyance) ; Stannard v. Ulithome, 10 Bing. 491 (unusual covenants) ; Knights D. Quarles, 2 B. & B. 102 ; Allen v. Clark, 1 N. r. 353 . Treson v. Pearman, 3 B. & C. 799 ; Wilson v. Tucker, 3 Stark. 154 (cases of investigation of title) ; Parker v. Eolls, 14 C. B. 691 ; Elkington v. Holland, 9 M. & W. 659 (cases of deeds not under seal, or unattested) ; In re Bolton, 9 Beav. 273 ; Fe Spencer, 18 W. E. Ch. 240 (mistake in order of Court) ; Eeeve v. Palmer, 5 C. (1758) SOLICITORS. 135 A solicitor is not liable for error in judgment upon points of new occurrence, or of nice or doubtful construction (a). * Where the retainer is to do a particular thing, the [*202] solicitor is liable for negligence only with respect to that particular matter ; and though his negligence in respect of matters connected therewith may cause injury to the client, he is, it seems, not liable (6). In a case of unusual difficulty, or where some new point arises, the skill and knowledge which a solicitor is bound to bring to the execution of his duties may be insufficient ; and, however compe- tent he individually may be, he may desire to act under the advice of counsel. If, therefore, upon such a matter he fairly and fully lays a case before counsel, and follows the advice carefully, he is discharged from liability if it should turn out that such advice was fallacious (c) ; but upon matters which are entirely within his own province, and should be known to him, he cannot shelter himself under the opinion of counsel (d). By the Attornies and Solicitors Act, 1870 (e), agreements may be made between solicitors and their clients with respect to the remuneration of the former ; but by sect. 7 a provision in any agreement that the solicitor shall not be liable for negligence, or that he shall be relieved from any responsibility to which he would otherwise be subject as such solicitor, is wholly void. By sect. 8, no action can be brought upon any such agreement ; but the agree- ment may be enforced in the manner indicated in the section. It has been held that this section only applies to prevent actions to recover sums in lieu of costs after the work is done, and not to an B. N. S. 84 (loss of deed) ; Donaldson v. Haldane, 7 CI. & F. 762 ; Dartnall v. Howard, 4 B. & C. 345 (deposit of money) ; Cox v. Leech, 1 C. B. N. S. 617 ; Hunter v. Caldwell, 10 Q. B. 69 ; Frankland v. Cole, 2 Cr. & J. 590 ; Huntley V. Bulwer, 6 Bing. N. C. Ill ; Stannard v. Ulithorne, 10 Bing. 491 ; Jacaud v. French, 12 East, 317 ; Plant v. Pearman, 41 L. J. Q. B. 169 ; Long v. Orsi, 18 C. B. 610 ; Stokes v. Trumper, 2 K. & J. 232 ; Williams d. G-ibbs, 5 Ad. & El. 208 ; Kemp v. Burt, 4 B. & Ad. 424 ; Hart v. Frame, 6 CI. & F. 193 ; Gode- froy V. Jay, 7 Bing. 413 ; Simons v. Eose, 31 Beav. 1 ; Russell v. Stewart, 3 Burr. 1787 ; Pitt v. Yalden, 4 Id. 2060 ; Laidler v. Elliot, 3 B. & C. 738 ; Eus- sell V. Palmer, 2 Wils. 325 ; Hill v. Finney, 4 F. & F. 016 (cases of neglect or ignorance of procedure) ; Eeece v. Eigby, 4 B. & Aid. 202 ; Rex v. Tew, Sayer, 50 ; Nash v. Swinburne, 3 Man. & Gr. 630 ; De Eoufigny v. Peale, 3 Taunt. 484 ; Dax v. Ward, 1 Stark. 409 ; Hawkins v. Harwood, 4 Ex. 503 ; Swannell V. Ellis, 1 Bing. 347 (cases of neglect in preparing for trial or attending) ; Alli- son V. Eayner, 7 B. & C. 441 (not informing client as to costs). A curious case is reported (Lee v. Dixon, 3 F. & F. 744) where a solicitor brought an action on behalf of his client in a superior Court for a very small sum of money, and the plaintiff had to pay the costs. The action was twice tried, the first time with a verdict for the plaintiff, the second with a verdict for the defendant. (a) G-odefroy v. Dalton, 6 Bing. 468 ; Laidler v. Elliott, 3 B. & C. 738. h) Langdon v. Godfrey, 4 F. & F. 445. (e) Andrews v. Handley, 36 L. J. Ex. 323 ; Fray v. Voules, 1 El. & El. 839 ; Kemp V. Burt, 1 Nev. & Man. 262 ; Manning v. Wilkin, 12 L. T. 249. (d) Godefroy v. Dalton, 6 Bing. 460, 469. (e) 33 & 34 Vict. c. 28. (1759) 136 BANKERS, ETC. action for refusing to allow a solicitor to do the work (/). The above statute does not apply to conveyancing or non-contentious . [*203] business, agreements as *to which are regulated by the Solicitors' Remuneration Act, 1881 (g). A patent agent is expected to know the law relating to the prac- ,tice of obtaining letters patent, and is answerable for negligence causing injury to his client by want of knowledge and skill (h). Section XIII. Neglect of duties by Bankers, &c. Bankers, in the course of their business as such, are bound to exercise something more than ordinary care. Like physicians and lawyers, they hold themselves out to be persons of care and skill, and they undertake most important duties. But they are only bailees for reward of certificates intrusted to them for safe custody, upon which they receive commission for collecting the dividends, or upon which they have a lien (i), and as such, are liable for or- dinary negligence only; and where goods are simply deposited with them, and they make no charge, and the customer keeps the key of the box, they are merely gratuitous bailees; and, possibly, something less than ordinary care is all that is required of them (fc). But with respect to money placed in their hands by their customers for the ordinary purposes of banking, whether they re- ceive a profit or not, they hold themselves out as persons worthy of [*"204] trust, and as persons of skill, and they *must be expected to use something more than ordinary care (Z). A banker would be liable for negligently refusing to cash his customer's cheque when he had sufficient funds in hand (m). So bankers are liable for negligently paying forged cheques (n), and there can be little doubt that they are bound to exhibit skill in detecting such forgeries. They are not liable if there has been (/) Eees V. Williams, L. R. 10 Ex. 200. \g) U & 45 Vict. c. 44, ss. 8, 9. (h) Lee v. Walker, L. E. 7 C. P. 121; 41 L. J. C. P. 91 (delay of four months in getting patent sealed). (i) In re United Service Co., Johnson's Claim, L. E. 6 Ch. 212; 40 L. J. Ch. 286. (k) Giblin v. McMuUen, L. R. 2 P. C. 317; Foster v. Essex Bank, 17 Mass. 479; Scott v. National Bank of Chester Valley, 72 Pa. St. 472; Lancaster Bank ■V. Smith, 62 Penn. St. 47, post, Chap. IV. (l) Wharton, s. 510. (m) Marzetti v. Williams, 1 B. & Ad. 415. This case was not founded on negligence; the action was substantially founded on the contract, and a wilful breach was alleged, but Taunton, J., puts it on the breach of duty. (re) Bank of Ireland v. Trustees of Evans' Charity, 5 H. L. C. 389. (1700) PUBLIC OFFICERS. 137 contributory negligence (o), but it seems that such contributory negli- gence, in order to be an answer in an action for negligence against bankers, must be negligence in regard to the particular matter in dispute, and be in the nature of an estoppel (p). A. manager of a bank discounting bills for companies in which he has an interest without disclosing that fact is not guilty of negli- gence if he is acting in the ordinary coarse of business, and has not exceeded his powers (q). Assuming it to be the duty of a banker not to disclose the state of his customer's account without reasonable cause (r), the ques- tion of reasonableness is for the jury (s). *Section XIV. [*205] Neglect of duties by Stockbrokers. Stockbrokers carry on a business well-known to the law. They un- dertake a well-known duty, viz.: to use all reasonable efforts to find a purchaser of shares, and to make a contract with him in a binding form on the Stock Exchange, and it is no excuse to say that by the custom of a local exchange the contract is usually made in a form which is not binding, for that is not a reasonable custom, and the customer is entitled to substantial damages if the broker makes a contract which is not binding, whereby the plaintiff suffers damage (v- Section XV. Neglect of duties by Public Officers (u). Where the duties of a public officer are ministerial he is liable to an action of negligence if he negligently fails in the perform- ance of them ; but where they are discretionary or judicial he (o) Young V. Grote, 4 Bing. 253. The authority of this case has been very much questioned, see Baxendale v. Bennett, L. R. 3 Q. B. D. 525. (p ) Anold V. Cheque Bank, L. E. 1 C. P. D. 578; 45 L. J. C. P. 562; Patent Safety Gun Cotton Co. v. "Wilson, 49 L. J. 713, ante, p. 2. (q) Bank of Upper Canada v. Bradshaw and Others, L. E. 1 P. C. 479. (r) Which it is submitted is without doubt. is) Hardy v. Veasey, L. E. 3 Exch. 107; 37 L. J. Ex. 76; Foster r. Bank of London, 3 F. & P. 214, considered. An action would arise at all ca ents upon special damage shown. Hardy v. Veasey, supra. (t) Neilson v. James, 9 Q. B. D. 546. It seems doubtful whether the plaintiff could recover more than the price of shares omitted to be sold, as in the above case a claim to be indemnified against calls was abandoned. (u) The mo.st usual way of compelling public officers to perform their duties is by mandamus, but this form of remedy is outside the scope of the present work. (1761) 138 PUBLIC OFFICERS. [*206] ig not so liable (x). In the latter case lie is, *indeed, in general liable in another form of action where he has been corrupt or malicious, or has acted beyond the scope of his authority (y). Sometimes an officer whose principal duties are judicial may have to act ministerially in some particular duty or in some particular part of his judicial duties, and in respect of his ministerial duties he is liable to the charge of negligence (z). Public officers, whether their duties are of a general public nature, or of a quasi public nature (that is, who act upon request of in- dividaals for reward), are liable for negligence, and are not pro- tected merely because they act bona fide and to the best of their skill and judgment, but they are bound to conduct themselves in a skilful manner (a). Public officers are bound to exercise care in selecting subordinates, and in superintending them; but there is a distinction between public officers whose duties are of a general public nature, as officers or servants of the Government or public, and public officers whose duties are of a quasi public nature, as persons called upon by in- dividual members of the public to do particular acts. The former are not responsible for the negligence of those who are their [*207] *deputies or subordinates, for these are, like themselves, servants of the Government or the public, who is the principal or master (6). but the latter class of officers have always been held liable (x) See Linford v. Fitzroy, 13 Q. B. 240 (admitting to bail, judicial, not min- isterial); Ashby V. White, 1 Smith L. C. 216, 5th ed., see p. 258, and CuUen v. Morris, 2 Stark. 587 (returning officer at election, partly ministerial, partly judicial ; Barry v. Arnand, 10 A. & E. 546 (collector of customs, ministerial); Miller v. Seare, 2 "W. Bl. 1141 (commissioner in bankruptcy imprisoning, min- isterial) ; Shinotti v. Bumpstead, 6 T. K. 646 (manager of lottery, ministerial) ; Tozer v. Child, 7 E. & B. 377 (returning officer, judicial); Pickering v. James, L. E. 8 C. P. 489 ; 42 L. J. C. P. 217 (presiding officer at ballot, ministerial). The agents of the state, as, for instance, the keepers of a penitentiary, have been held, in America, not liable for negligence. Alamango v. Albany County Supervisors, 25 Hun. N. Y. 551. (y) As this is beyond the scope of this work, the reader is referred to other treatises as to the liability of judges, magistrates, and other officers, in respect of malicious and corrupt acts. Judges and barristers are exempted from actions for negligence on the ground of public policy. The question, what is a minis- terial act, and what a judicial or discretionary act, will depend upon the cir- cumstances. (z) Shearman, 165 ; Ferguson v. Kinnoul (Earl of), 9 CI. & F. 251 ; Brasyer v. Maclean, L. R. 6 P. C. 398 ; 44 L. J. P. C. 79. (a) See Jones v. Bird, 5 B. & Aid. 837. (b) Nicholson v. Mounsey, 15 East. 384 (captain of ship) ; Lane v. Cotton, 1 Lord Eaym. 646 (postoffice) ; see also Whitefield v. Despenser, 2 Cowp. 765. Per Blackburn, J., in Mersey Docks v. Gibbs, L. K. 1 H. L. Ill ; see also Reg. v. Treasury, L. R. 7 Q. B. 387. Since the Government have undertaken to trans- mit inland telegraph messages, the above principle applies to any injury arising from negligence of telegraph clerks. It may here be mentioned that formerly the receiver of a message could not sue the company, because he had no privity with them, and he could not sue the sender for a mistake made by the com- pany's clerk. So that the receiver of a message was and is without remedy (see Playford v. V. K. Tel. Co., L. R. 4 Q. B. 70; 38 L. J. Q. B. 249 ; Dickson (1762) PUBLIC OFFICERS. 139 for the negligence of their servants. Who are public servants of the former class so as to exempt them from liability for the acts of their subordinates, has not been always clearly determined. It v^as long thought that all commissioners appointed by the Crown and intrusted with the care of public works were public servants, and as they were formerly personally liable, if at all, it was held that they were exempted from all liability ; but now that such bodies are only liable in their corporate capacity, they are held liable for the acts of those whom they employ (c). If a public officer intrusts his public duty, which he ought to do himself, to another person, who neglects to perform the duty, the public officer is liable to an action for negligence (d). If h^ is per- mitted by statute to delegate his duties to another, and does so, that other becomes *responsible ; but if he continues to act, he [*208] himself is responsible (e). It must be clearly shown upon whom the duty rests which has been neglected, and the neglect of which caused the damage. Sometimes there is a duty to superintend others in the execution of a duty, or to step in to perform such duty when neglected by others, or to pay for the performance of it by others, but the duty to do the thing rests upon those others, and they are the persons primarily responsible. The damage flows immediately from their neglect of their duty, and they are the persons liable for such neglect Where the Navigation Commissioners were by their Act to give notice to their lessee of non-repair of a canal, and in case of non- compliance to do the repairs themselves, and they knew of a want of repair and gave no notice, it was held they were not responsible, for the injury did not flow immediately from their neglect to give notice. The primary duty was on the lessee, who was merely un- der the superintendence of the commissioners (/). Where Im- provement Commissioners had by their Act power to request a waterworks company to fix plugs and pipes, and were to pay for the repairs of them by the company, it was held that the company were liable, as the duty vjf doing the repairs was cast upon them, although the commissioners were to pay for them being done {g). The question, what is or is not negligence in an officer of a court of justice, a notary, a sheriff, &c., depends upon particular circum- V. Reuter's Tel. Co., L. E. 2 C. P. D. 62; 46 L. J. C. P. 192). The sender would formerly have had his remedy against the company, but now he has not. In America, it is said that telegraph companies are common carriers (see Shear- man, ss. 554, 555), though not liable except for negligence or misconduct, s. 553. (c) Mersey Docks v. Gibbs, supra. (d) Pickard v. Smith, 19 C. B. N. S. 480 (contractor). See ante, pp. 87, 149, as to this. (e) Pickering v. James, L. E. 8, C. P. 489 ; 42 L. J. C. P. 217 (presiding offi- cer at ballot). (/) Walker v. Goe, 4 H. & N. 350. {g) Bayley v. "Wolverhampton Waterworks Co., 6 H. & N. 241. (1763) 140 PUBLIC OFFICERS. stances, and although there are many cases in the books, yet there ia no particular test or principle to be gathered from them. It is of [*209] course negligence *to neglect a duty, but the question whether there is a duty depends upon the particular circumstances, as for instance the interpretation of the statute under which the officer is acting, or the usual practice of the Courts, or the necessi- ties of the case. If there is no duty arising in any way to do a thing there can be no negligence in omitting to do that thing (h). A. notary public appears to be a person to whom the laws of America (i), France (fc), and Scotland (Z) give large powers, but in England (m) his functions are more limited; but whether he is em- ployed as a public officer to do ministerial acts or as a private person undertaking to exercise skill for reward, it is submitted that he is bound to exercise more than ordinary care. A high degree of responsibility attaches to a sherifp towards the person who employs him (n). His liability to the owners of goods seized is only that of an ordi nary bailee, and he is only liable for ordinary negligence (o). A sheriff's duties are ministerial, and the statutes imposing them usually inflict penalties for neglect in their performance, but as we have seen (p) the imposition of such penalties does not in general relieve him from his common law liability to an action for negligence. [*210] *Numerous cases are to be found as to what is or is not a negligent act on the part of a sheriff, but each case depends upon its own particular circumstances (q). Where a sheriff has to take sureties on a replevin bond he must exercise at least a reasonable care in accepting them (r). The penalty of the bond is the measure of damages (s). (ft) Ante, p. 2. See Eobinson v. Gell, 12 C. B. 191. As to the question of whether, where a statute imposes a penalty on an officer for neglect, the remedy by action still survives, see Atkinson v. Newcastle Waterworks Co. ; Couch v. Steel, ante, p. 149. U) See Shearman on Negligence, ss. 423 — 430. h) See Nye v. Macdonald, L. K. 3 P. C. 331. h) Campbell on Negligence, 2nd ed., p. 44. (m) Nye v. Macdonald, supra ; and see Epx v. Scriveners' Co. , 10 B. & C. 51 9. His public duties are chiefly the protesting of bills and giving effect to mer- cantile documents in foreign Courts by certificate. («) It is said in Hodgson v. Lynch, Irish Eep. 5 C. L. 353, that he is- only re- sponsible for ordinary negligence. See also Shearman, s. 530, n. 4, sed quserc. (o) See ante, Ch. II., s. 8. Ip) Ante, p. 149. [q] Dennis v. Whetham, L. E. 9 Q. B. 345 ; 43 L. J. Q. B. 129 (two writs fraudulent, return of nulla bona to third writ) ; Allen v. Carter, L. E. 5 C. P. 414 ; Williams v. Eose, L. E. 3 Ex. 5 ; 37 L. J. Ex. 12 ; Dignam v. Bally, L. E. 3 Q. B. 178 ; 37 L. J. Q. B. 71 ; Godwin v. Stone, L. E. 4 Ex. 331 ; 38 L. J. Ex. 153 (escapes). The plaintiff must show actual damage, Williams v. Mcstyn, 4 M. & W. 145. Arrest on final process is in general abolished, 32 & 33 Vict. c. 62, s. 4. (r) Kindal v. Blades, 5 Taunt. 225 ; Scott v. Waithman, 3 Stark. 168 ; Jeffery V. Bastard, 4 Ad. & El. 823 ; Sanders v. Darling, Bull. N. P. 60 ; Gwillim v. Scholey, 6 Esp. 100. (s) Jeffery v. Bastard, supra. (1764) SHIPS. 141 In an action against a sheriff for negligence in executing mesne process, evidence, such as would be sufficient to charge the original defendant with the dAbt, is sufficient against the sheriff to support an averment that the original defendant was so indebted (t). A sheriff is responsible for the negligent acts of his deputy, bailiff, or servant, done in ex^ution of the sheriff's authority, but is not responsible for acts not done in the execution of the warrant, unless the sheriff ratify the act of his agent (u). He is not liable for the neglect of his predecessor (x). Where it is admitted (y) that the person employing *the [*211] sheriff has sustained no damage, nominal damages cannot be re- covered; but whether nominal damages can be recovered in default of proof of substantial damages seems doubtful {z). Justices of the peace are protected in the exercise of their discre- tion by the 11 & 12 Vict. c. 44, s. 4 (a). Section XVI. Neglect of Duties by Owners, &c., of Ships. With respect to the carriage of goods by ships, the owners areprimd facie, common carriers (6), and as such are in the nature of insurers; and the question of negligence does not arise; and, again, where their liability as common carriers is controlled by special contract, the whole question of the liability of the owner turns on the con- struction of the contract, and it is not proposed to discuss parti- cular contracts (c). With respect to the carriage of passengers the general principles already laid down with respect to carriers by land apply also to (t) Sloman v. Heme, 2 Esp. 695 ; Williams v. Bridges, 2 Stark. 42 ; Gibbon V. Coggin, 2 Camp. 188. (u) "Woodgate v. Knatchbull, 2 T. E. 149 ; Crowder v. Long, 8 B. & C. 605 j Drake v. Sykes, 7 T. R. 113 ; Martin v. Bell, 1 Stark. 416 ; Jones v. Wood, 3 Campbell, 228. He is not liable for acts of a special bailiff appointed at request of the party: De Moranda v. Dunkin, 4 T. E. 119; Cook i. Palmer, 6 B. & C. 742 ; Wood v. Finnis, 7 Exch. 372. (x) Davidson v. Seymour, M. & M. 34. (t/j Williams v. Mostyn, 4 M. & W. 145. So also a plea is good which denies that there was any damage, Wylie v. Birch, 4 Q. B. 566. (z) See note to Wylie v. Birch, supra, at page 580 ; Barker v. Green, 2 Bing. 317 ; Bales v. Wingfield, 2 Nev. & M. 831 ; Clifton v. Hooper, 6 Q. B. 468 , Stimson v. Famham, L. E. 7 Q. B. 175 ; 41 L. J. Q. B. 52 ; Levy v. Hale, 29 L, J. C. P. 127. (a) See Pedley v. Davis, 10 C. B. N. S. 492; 30 L. J. C. P. 374; Newbold v. Coltman, 6 Exch. 189. (b) Nugent v. Smith, 1 C. P. D. 423, C. A.; 45 L. J. C. P. 697. (c) See ante, p. 6. (1765) 142 SHIPS. earners by water, and the subject will here be only very shortly treated, and the reader must be referred to treatises upon the law of shipping (d). As to unseaworthy ships, see the 36 & 37 Vict. c. 85 and 39 & 40 Yict. c. 80. [*212] *A warranty of seaworthiness is implied in a contract for the carriage of a passenger, who may recover notwithstanding the penalty inflicted by the statute (d). The extent of liability for damages for loss of ships and goods, and for personal injury or loss of life, is regulated by the Merchant Shipping Act Amendment Act, 1862 (e). The reader is referred to s. 9, Carriers, ante, p. 175, and to the works above cited on shipping; see also Mayne on Damages, 262 — 265, 3rd ed. It is not proposed in the present treatise to enter at great length into the peculiar rules and regulations relating to the navigation of ships. The reader must be referred to special works upon the subject (/), and all that can be done here is to give some account of the general law of negligence as it bears upon the duties of ship- owners, ship captains, and others having the management of ves- sels, and of the principal statutes modifying the general law. By the Judicature Act, 1873, s. 25, para. 9, " In any cause or proceeding for damages arising out of a collision between two ships, if both ships shall be found to have been in fault, the rules hitherto in force in the Court of Admiralty, so far as they have been at variance with the rules in force in the Courts of Common Law, shall prevail " (g). The rules hitherto in force in the Court of Admiralty, which are here referred to, are that, generally, when both parties are to blame, [*213] they must share the loss equally, so *that the plaintiff in such case recovers half his damages, where at common law if his negligence was "contributory negligence" he could not recover at all, as we shall see (h). Where both are to blame the plaintiff is not entitled to the costs; and where one vessel has a compulsory pilot on board who has contributed to the collision, the owner of that vessel can recover half the loss without any deduction (i). (d) Maclachlan on Shipping, 2nd ed., p. 310, el seq; Maude & Pollock, 3rd ed., 446 el seq. (d) Couch V. Steel, ante, p. 149. (e) 25 & 26 Vict. c. 63, see s. 54; The Warkworth, 12 Q. B. D. 20; and see 17 & 18 Vict. c. 104, ss. 506 — 512. These sections do not apply to small craft. As to what are small craft, see M. S. Act, 1854, s. 2. They include foreign ships. See Hunter v. McGown, 1 Bligh, 580; Morewood v. Pollok, 1 E. & B. 743. (/) Maclachlan on Shipping, 2nd ed., 1875; Maude & Pollock on Shipping, 2nd ed., 1861. (ff) See Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., per Pollock, B., 9 Q. B. D. 125. (A) Posl, Ch. v., Contributory Negligence. (i) The Hector, 8 P. D. 218. There has been an appeal in this case to the House of Lords. (1766) SHIPS. 143 The Admiralty rules by the above provision are only to prevail in proceedings for damages arising out of collisions, and not in any other cases. A.S in an action at common law, so also in an action in the Admi- ralty Courts, the plaintiff is bound in the first instance to make out a prima facie case of negligence. " The burden of proof lies upon the plaintiff so far ; but it does not at all follow that it lies upon him throughout the whole case ; for frequently by proving certain circumstances the burden of proof is thrown back upon the defend- ant, and he is bound to make out his case " (k). The defendant may then show that he was not to blame, because the accident was inevitable (Z), or because the plaintiff contributed to the collision (in), in which latter case the damages will be divided (n). By the Merchant Shipping Act, 1873, s. 17 (o), in cases of col- lision, where any of the provisions for preventing collision contained in or made under the Acts of 1854 to 1873, have been infringed, the ship which has infringed them is to be decreed in fault, unless it is shown that the circumstances of the case warranted a depar- ture from such provisions. The burden of proof is thrown upon the*offending vessel (p), but if the neglect of the provisions [*214] was of such a character that it could not by any possibility in any way cpntribute to the collision, which was solely caused by the neg- ligence of the other vessel, the former vessel may recover (q). If an important rule of navigation has been neglected, and such neglect can by any possibility have contributed to the accident, the negligence cannot be excused (r). The Court may look not merely at the immediate cause of the collision, but at the causa causans (s). The owners of the cargo or the ship might under the old rules recover the whole damages against a ship wholly to blame (t). But where there has been misconduct on the part of both vessels, by the law of the Admiralty the owners of the ship and cargo can (k) Per Dr. Lushington, The Carron, 1 Ec. & Ad. 93. See also The Dum- fries, 1 Swab. 64; S. C. on app. 125. (J) See The Shannon and other cases, post. • (m) The Victoria, 3 W. Eob. 52. (n) See post. lo) 36 & 37 Vict. c. 85. (p) The Fanny M. Corvill, L. R. 4 A. & E. 417 ; 44 L. J. Ad. 44. See Law- son V. Carr, 10 Moo. P. €. 162, as to the effect of this upon the old rules ; and see The Milan, infra. (q) The Englishman, 47 L. J. Ad. 9 ; L. R. 3 P. D. 18 ; The Magnet. L. E. 4 A.'&'E. 417 ; 44 L. J. Ad. 34; Morrison v. Genl. Steam Nav. Co., 8 Exch. 738. (r) The Arklow, 9 App. Ca. 136. («) Lloyd V. General Iron Screw Co., 3 H. &C. 284 ; 33 L. J. Ex. 269 ; Char- tered Bank of India v. Netherlands Nav. Co., 10 Q. B. D. 521. (t) See per Dr. Lushington in The Milan, infra ; Brown v. Mallet, 6 C. B. 699. {1767) Hi SHIPS. only recover a moiety of the damage which they have respectively sustained (u). The innocent owner of a cargo may, d fortiori, recover a moiety of the damage (though not the whole) against the owner of a ship which has negligently come into collision with tlie ship containing his goods, notwithstanding his ship was equally negligent ; for he is not identified with its negligence, nor in any way responsible for the collision (x) ; and he is also entitled to his costs (y). [*215] *The Crown Prince and the Atjeh, belonging to the same owners, came into collision by the negligence of both vessels. The plaintiff lost his goods, which were carried in the Crown Prince under a bill of lading, excepting liability from negligence ; and it was held that the plaintiff could only recover one half his loss (z). By the 36 & 37 Vict. c. 85, s. 16, provision is made that in cases of collision the persons in charge of the vessels shall stay by each other to render assistance, &c. ; and, if one of them does not do so, the presumption is that the collision was his fault (a). Sailing and steering, lighting and signalling rules were provided under the 25 & 26 Vict. c. 63, s. 25, by various Orders in Council ; and now by Order in Council, dated 14th August, 1879, amended by Orders of the 24th March, 6th September, and 27th November, 1880 (and see also Order, 18th August, 1882), new rules are in force which have been accepted by all the principal maritime nations (6). A ship navigating a river seems undoubtedly to be much in the same position as a carriage going upon a road. It is upon a highway, and others exercising equal rights are proceeding upon the same highway ; and the captain or manager of such ship is bound to exercise care and skill to prevent collision with other vessels, or other mischief (c). "The duty is the same whether the vessel be in motion or stationary, floating or aground, under water or above it," unless where a vessel has been sunk and has been [*216] *handed over to the proper authority to take care no mischief comes of it (d). In the launching of vessels the " utmost precaution " should be used to prevent them coming into collision with other vessels (e). (u) The Milan, infra, (x) The Milan, Lush. 388 ; 31 L. J. Adm. 105. This is contrary, as it seems to the rule at common law, see Thorogood v. Bryan, post, Ch. V., Contributory Negligence. (y) The City of Manchester, 5 P. D. 3. (z) Chartered Bank of India v. Netherlands NaT. Co., 10 Q. B. D. 521. (a.) See Ex parte Ferguson, L. E. 6 Q. E. 38 ; 40 L. J. Q. B. 105 ; TheJJueen, L. E. 2 A. & E. 354 ; 38 L. J. Adm. 39 ; see also The Adriatic, 3 Asp. Mar. La-* Cas. 16 ; 33 L. T. Eep. 102. !6) As to Thames navigation, see Thames Conseirancy Act. c) Brown v. Mallet, 5 C. B. 599 ; The Douglas, 7 P. D. 151. d) The Douglas, infra, e) The Glengarry, 2 P. D. 235 ; The Cachapool, 7 P. D. 217 ; The Gteorge Eoper, 8 P. D. 119 ; see The Andalusian, 3 P. D. 182. (1768) NAVIGATION RULES. 145 As Tessels, particularly steam- vessels, require considerable skill in their management, and the effects of want of care are likely to be so very disastrous, I think there can be no doubt that some- thing more than ordinary care is required from those who undertake their management (/). It seems that where one vessel is stationary and another moving, the presumption of negligence is agaiast the one in motion (g) ; but this is, after all, only a presumption of common sense, and is liable to be rebutted (h). Formerly, apart from any Orders in Council, certain rules pre- vailed, as of course, in the navigation of vessels ; but all such rules are now embodied in the Orders in Council above mentioned (i). If by reason of negligence in the navigation of a vessel another vessel is put into a position of danger, in trying to escape which she does damage to a third ship, the first wrongdoer is liable (fc), and in an action by the injured vessel against the other two the original wrongdoer may be ordered to pay the costs of the vessel which actually did the injury (I). "When a steamship in a fog hears a whistle close to it, it ought to stop, and not to speculate as to which way *the ship [*217] is going which has whistled, and so go on or stop as it thinks fit (wi). Negligently managing a ship so as to injure a telegraph cable at the bottom of the seas affords a cause of action (n). The not keeping a proper look-out is one of the very strongest evidences of negligence (o), so also is the neglect of lights and signals (p). Unnecessary delay in mooring a vessel, so that, night coming on, a collision occurs which would not have happened in the daylight, is negligence (q). Inevitable accident is a good defence to an action for negligence in the management of a ship (r), as it is in other cases. If the (/) The Syracuse, 12 Wall. 167 ; Bill «. Smith, 39 Conn. 206. (g) The Victoria, 3 W. Eob. 52 ; Cuthbertson v. Shaw, 18 How. 584 ; The Granite State, 3 Wall. 310 ; Bill v. Smith, 39 Conn. 206. !h) The Victoria, supra ; The City of Baltimore, 5 Benedict, 474. i) Ante, p. 215. k) The Sisters, 1 P. D. 117. I) The Alford and Valencia (unreported case). Cm) The Kirby Hall, 8 P. D. 71. (n) Submarine Telegraph Co. v. Dickson, 15 C. B. N. S. ; 33 L. J. C. P. 139. (o) Thorp D. Hammond, 12 Wall. 408 ; Bill v. Smith, 39 Conn. 206 ; The Ericson, 1 Swab. 38 ; The Chester, 3 Hagg. 316 ; and see Article 20 of Orders in Council ; Maclachlan on Shipping, 2nd ed., p. 280. (p) Hoffman, v. Union Ferry Co., 47 N. Y. 176 ; The Sylph, 2 Ec. & Ad. 75 (Spinks) ; The City of London, 1 Swab. 245. (q) The 'Egyptian, 1 Moo. P. C. N. S. 373. (r) The Virgil, 2 W. Rob. 205; The Marpesia, L. E. 4 P. C. 212; The Thomely, 7 Jur. 659; The Shannon, 2 W. Eob. 463. 10 LAW OP NE0. (1769) 146 SHIPS. ultimate accident, however, was partly caused by the defendant's negligence, the accident affords no answer (s). Where the person in charge of the vessel has done all that a rea- sonable man exercising skill would do, he is not answerable merely because, judging after the event, he is seen to have omitted some possible precaution (t). But where the circumstances, such as the weather or the navigation are of an extraordinary character, extra- ordinary care must be taken in order to exonerate the vessel doing damage {u). [*218] *At common law the pilot is the agent of the owner, who is responsible for his acts (.x). Owners or masters of vessels are protected by the Merchant Shipping Act from loss arising from the default of a qualified pilot, where the employment of a pilot is compulsory {y); the master must, however, keep a good look out {z)\ and he is responsible for negligence in respect of those matters which the pilot cannot con- trol, such as the soundness of the ship, &c. (a). The burden of proof has been said to be upon the owner of the ship wishing to bring himself within the Act (6); and he must show that the pilot was to blame (c). It does not seem, however, that he must prove that he was not himself negligent, but the plaintiff must give af- firmative evidence of the defendant's negligence before he can re- cover (d). As to what duties appertain to the master and what to the pilot the reader may be referred to the cases in the note (e). [*219] *If the employment of the pilot be voluntary the ship- (s) Bailiffs of Eomney Marsh v. Trinity House, L. E. 5 Ex. 208; Austin v. New J. Steam Co., 43 N. Y. 75. («) Doward v. Lindsay, L. R. 5 P. C. 338. (m) The Itinerant. 2 "W. Rob. 236; The Girolamo, 3 Hagg. 169; The Virgil, supra; The Perth, 3 Hagg. 414; The Ligo, 2 Hagg. 356; The Northampton, 1 Ecc. & Ad. 152 (Spinks). (x) The Neptune the Second, 1 Dods. 467; The Eden, 2 W. Eob. 442. [y] Sect. 388 of Merchant Shipping Act, 17 & 18 Vict. c. 104; see The aan Gordon, 7 P. D. 190. This applies to a British ship in foreign waters, see The Halley, L. E. 2 P. C. 193. As to when a pilot is compulsory, see The Caeha- pool, 7 P. D. 217; The Eigborgs Minde, 8 P. D. 132. (z) The Diana, 1 W. Eob. Ad. 131; Stuart v. Isemonger, 4 Moo. P. C. 11. (a) The Zona, L. E. 1 P. C. 426; The Velasquez, ib. 496; The Calabar, L. E. 2 P. C. 238; Hammond v. Eogers, 7 Moo. P. C. 160. (6) The Protector, 1 W. Eob. Ad. 45; PoUok v. McAlpin, 7 Moo. P. C. 427, 430. (c) The Mobile, 1 Swab. 127; Pollok v. McAlpin, 7 Moo. P. C. 427. (d) Clyde Nav. Co. r. Barclay, L. R. 1 P. C. 494; 36 L. J. Ad. 18; The Daioz, 47 L. J. Ad. 1 ; 3 Asp. Mar. Law Cas. 477. (e) The Energy, L. R. 3 A. & E. 48; 39 L. J. Ad. 25; Marshall v. Moran, L. R. 3 P. C. 205; The Lochlibo, 7 Moo. P. C. 430; 3 W. Eob. Ad. 310. 321; Hammond v. Eogers, 7 Moo. P. C. 160, 171; The Christiana, ib. 171; The Di- ana Greig, 1 W. Eob. Ad. 131; The Portsmouth, 6 Ch. Eob. Ad. 317 n.: The Admiral Boxer, 1 Swab. Ad. 193; The Maria, 1 W. Rob. Ad. 95, 110; The Ag- rioola, 2 W. Eob. Ad. 10; The Gipsey King, 2 "W. Eob. Ad. 537, 547; The Julia, Lush. Ad. 224, 233. (1770) NAVIGATION RULES. 14:7 owner is liable (/) ; but if it was compulsory just before the accident and had not fairly ceased, the ship-owner is excused if the accident occurred through such pilot's negligence (gf). Compulsory pilotage only applies to certain districts (h), and certain ships are exempted (*), the owners of which are responsible, though they have a duly-qualified pilot on board (k). The law presu.mes the pilot to have skill and experience, and as- sumes that he will exercise the greatest care, and therefore it bestows upon him the lai'gest possible power and authority (Z). It seems doubtful whether the owner of a ship is liable for the contributory negligence of the pilot where the latter is employed compulsorily. The question arose in a case where a ship in charge of a compulsory pilot was in tow and was injured by the tug (m). As the owner of the ship would not be answerable for the negligence of the pilot with respect to third parties (n), it seems strange that he should be liable for the contributory negligence of the pilot. The point, however, was not decided, as it was held that, as a mat- ter of fact, the tiig did not succeed in proving contributory negli- gence on the part of the pilot. *It has been held in Ireland that the owner of a ship is [*220] not so identified with a compulsory pilot as to be disentitled to re- cover damages from a tug towing the ship where the pilot in charge of the ship has been guilty of contributory negligence (o). Where the pilot has not control of the navigation the owner of the ship remains liable for any negligence of the pilot (p). As to the duties and liabilities of pilots, see the 17 & 18 Vict. c. 104, ss. 365, 373. When the master of a ship enters into an agreement with the master of a tug to have his vessel towed to a particular place there is no warranty that this will be done. The tug only agrees to exer- cise diligence, care, and skill, and is not answerable for inevitable accident or r/s major (q). It seems that as against strangers the tug is (so to say) the agent of the ship, and the latter is liable for its negligence. It also seems that the master of the ship is bound to obey tlie orders from the tug (as in the case of a pilot), unless they (/) The Lion, L. R. 2 A. & E. 102 ; 2 P. C. 525. (g) Gen. Steam Nav. Co. t). British and Col. Do., L. R. 3 Ex. 330; :!H I.. J. Ex. 97 : The Woburn Abbey, 38 L. J. Ad. 51. (A) See 17 & IH Vict. c. 104, as. 332, 340, 353, 354, 355, 370, 376 ; see Pritch- ard's Adm. Dige.st, tit. Owners, p. 429, 2nd ed. ; The Vesta, 7 P. D. 240. (i) lb., sect. 379 ; 25 & 26 Vict. c. 63, s. 41. (k) The Settin, 31 L. .T. Ad. 208. (I) The Marin, 1 "\V. Rob. 95, 110 ; The Lochlibo, 3 W. Rob. Ad. 310, 321 ; Tlie Portsmouth, 6 C. Rob. Ad. 317, n. ; The Duke of Sussex, 1 W. Rob. Ad. 270, 273. (m) Spaight v. Tedcastle, 6 Ap. Cas. 217. (n) See The Mary, post, p. 220. (o) Dudman r. Dublin Port and Docks Board, Iv. Rep. 7 C. L. 518. (p) The Guy Mannering, 7 P. D. 52, 132. (q) The Minnehaha, 30 L. J. Ad. 211 ; The Galatea, Swab. Ad. 349. (1771) 148 SHIPS. are such as he is justified in disobeying (r). The tug is under the command of a pilot on the ship (s). The presence of the pilot will not excuse the master of a ship who orders a vessel to be moored by a tug in a dock at night time (f). "Where a steam-tug towing a vessel negligently comes into collision with a third vessel, the owners of the tug are liable, although a compulsory pilot of the ship in tow caused the collision (u). A vessel in tow must exercise proper care, and if it does not, it cannot recover against the tug in case of [*221] damages arising from *the action of the tug (x). In an action of damage between two vessels, the Court has jurisdiction under Order XVI. to determine whether the defendant's vessel is entitled to indemnity from her tug (y). The liability of owners of ships and owners of shares in ships to damages is regulated by the Merchant Shipping Acts, and it is not proposed in this book to enter into that question; but a few obser- vations on the general law of damages in cases of collision may be offered. In common law courts the action for damages is personal, but in the Admiralty courts, it may either be personal or in rem — that is to say, the ship itself is liable for the damages. The measure of damages is, as a rule, the amount of damage done (z) and no more(a); but where a smack was rendering sal- vage services at the time of the collision, it was held that the value of such services, if completed, might be recovered as well as the damage to the smack (6). So the freight of a vessel hired in substitution of a disabled smack was held recoverable (c) as consequential damage. And if the plaintiff proves that his vessel would have earned freight in fact, and that the collision in fact deprived him of the freight, he may recover such freight (d). So also where a barque was run into as she was proceeding to her port of loading, and through her delay the charterers had a right to cancel the charter-party, and she earned less freight in conse- quence, it was held she might recover damages for the loss of the charter-party (e). (r) See Maclachlanon Shipping, pp. 274, 275, 2nd ed., citing The Energy, L. E. 3 Ad. 48. (s) See The Christiana, 3 W. Eob. Ad. 27 ; Pettey v. Cato, 6 Moo. P. C. 371 See The Energy, supra. (t) The Borussia, Swah. 94. (m) The Mary, 5 P. D. 15. (x) Smith V. St. Lawrence Tow. Boat Co., L. E. 5 P. C. 308; 2 Asp. Mar. Law Cas. 41; see also The Julia, Lush. 224; The American and The Syria, L. E. 6 P. C. 127. (y) The Cartsbum, 5 P. D. 35. (2) The Gazelle, 2 W. Eob. 279 ; The Clarence, 3 W. Eob. 283; The Melona, ib. 7. (a) The Columbus, 3 W. Eob. 158. hj The Betsy Caines, 2 Hagg. 28. (e) The Yorkshireman, 2 Hagg. 30, n. (d) The Clarence, supra; The Eisoluto, 8 P. D. 109. (e) The Star of India, 1 P. D. 466. (1772) MEASURE OP DAMAGES. 149 *The damages, however, must not be too remote (/), and [*222] though the plaintiff may recover for the immediate consequences of a collision, yet he cannot recover for such part of the loss as is oc- casioned by his own want of skill in attempting to save his ship (g). . In an action for damages by collision the defendant cannot reduce the amount by showing that the plaintiff has recovered a sum of money from the insurers (ft). (/) 5 Eolidea, 3 Hagg. 367. (a) The Flying Fish, 34 L. J. Ad. 113 P. C. (A) Yates v. Whyte, 4 Bing. N. C. 272; Althorf u. Wolfe, 22 N. Y. 355; Brad- bume V. G. W. By. Co., 44 L. J. Ex. 9. See post, Ch. VIII., Damages. (1773) 150 LESS THAN ORDINARY CARE. [*223] *CHAPTER IV. NEGLECT OF DUTIES REQUIRING LESS THAN ORDINARY CARE. Amongst ordinary duties requiring no particular skill or care per se (a), and requiring something less than ordinary care by reason of their being performed solely for the benefit of another, are those of— (1.) Gratuitous depositaries. Thus, where bankers (b) accept their customers' property for safe custody gratuitously, they are not required to exercise, as it should seem, even ordinary care, for they are not in this case hold- ing themselves out as persons of skill, as they are when they are dealing with their customers' balance, &c., and they are cot receiv- ing any benefit by the deposit. How far the fact that the bailee lost his own goods at the time he lost the bailor's would be evidence that he took any and what degree of care, seems doubtful (c). It is probably some evidence (though not conclusive) in the case of a gratuitous bailee, that he took that degree of care which such a person is bound to take, i. e., something less than ordinary care. An executor is with respect to the assets of the testator in the [*224] position of a gratuitous depositary (d). If an article, *how- ever, is deposited with a person, who holds himself out as one who employs skill in improving or repairing it, he is bound to show such skill; but if he does not profess to employ any skill, he is only bound to act bond, fide and to the best of his ability (e). (2.) Gratuitous loan — in the case of the bailor. A duty is contracted towards the borrower not to conceal from him defects known to the lender which may make the loan perilous to him (/) ; but as the loan is for the benefit of the borrower, the lender is only answerable for gross negligence. (3.) Gratuitously dedicating a way to the public. Here the public adopting the road must take it as it is, although (a) If the gratuitous duty be performed by a person professing particular skill, he will he liable for ordinary negligence at the least: see anie, p. 123. (g) Giblin v. M'MuUen, L. R. 2 P. C. 317; 38 L. J. P. C. 25; Coggs v. Bern- ard, 2 Raym. 913; see ante, p. 203. (o) Doorman v. Jenkins, 2 A. & E. 258. (d) Job V. Job, 6 Ch. D. 562. (p) Shields v. Blackburne, 1 Hy. Bl. 159; Dartnall v. Howard, 4 B. & C. 350; and see as to solicitors investing gratuitously, ante, p. 199. (/) Per Coleridge, J., Blakemore v. Bristol and Exeter Ry. Co., 8 E. & B. 1035; M'Carthv v. Young, 6 H. & N. 329; Farrant v. Barnes, 11 C. B. N. S. 553; 31 L. J. C. P. 137. (1774) LESS THAN ORDINARY CARE. 151 if the dedicator omitted to warn the public of a danger known to himself he would be guilty of gross negligence (g). It seems that one who gratuitously acts as a solicitor is only liable for gross negligence; but it is safer to say that he is not responsible for so high a degree of care as if he were paid for his services (h). So also a volunteer, though he is acting without any request, yet if he does so out of mere benevolence, and in order to avoid a prob- able loss to another, is only bound to show something less than ordinary care (i). So also where a person allows another to come upon his premises, but solely for the benefit of such other person, it would appear from the cases that the inviter is not bound *to show so much [*225] as ordinary care (fc), although upon principle, as I have said, this is very doubtful. At all events, as regards a trespasser, he is only liable for gross negligence, and possibly not even for that, but only for such wanton mischief as amounts to wilful wrong (I). Certainly where the defendant is doing a gratuitous service to the plaintiff he is only liable for gross negligence, as where the defend- ant drove the plaintiff gratuitously in his carriage (?»). It was much argued in Mills v. Holton and other cases (?i) whether the de- fendants were persons performing a gratuitous service or not, so as to render them only liable for gross negligence. The defendants (the landlords) sent men to repair the plaintiff's (the tenant's) well, neither party being bound to repair. The workmen negligently destroyed the well. The Court said it was a question for Ihe jury whether the act was done gratuitously, or whether the defendants had undertaken to do the work properly. Martin, B., said that if they had merely done an act of kindness he thought they would incur no responsibility. But if a volunteer undertakes any work he must, as has been seen, exercise something more than ordinary care (o). (g) Eobbins v. Jones, 15 C. B. N. S. 221; Fisher v. Prowse, 2 B. & S. 770; Eyan v. Wilson, 41 Amer. Eep. 384. (h) See s. 12, Solicitors, ante, p. 198. (i) See Wharton on Negligence, s. 534, and sect. 69. (k) See ante, Ch. II. s. 2, p. 37. (I) Ante, p. 38. (m) Moifat v. Bateman, L. E. 3 P. C. 115. (n) Mills V. Holton, 2 H. & N. 14. (o) Ante, p. 123. (1775) 152 CONTKIBUTOEY NEGLIGENCE. [*226] CHAPTER V. CONTRIBUTORY NEGLIGENCE. The doctrine of contributoiy negligence is founded upon the maxim stated ante (a), "Injure non remoto causa sed proxima spectatur," and "contributory negligence" inlaw is that sort of negligence on the part of a plaintiff which is the proximate and not the remote cause of the injury. Of course, in one sense every negligence which contributes at any time or in any degree is con- tributory negligence ; but the phrase has acquired a technical or legal meaning, and in the legal sense is defined as above stated (6). No doubt, in order that the above definition may be fully appre- ciated, the word " proximate " must not receive a narrow interpre- tation, as being limited merely to the time when the negligence occurred ; nor must it be taken to mean merely that which was stated, ante, Ch. I., to be the meaning of " proximate cause," viz., such a cause as would probably lead to injury, and which has led to it. [*227] *The words "proximate cause" in the above definition must be taken to mean such a cause that its effect could not have been counteracted or avoided by the ordinary care of the defend- ant. Thus, if the defendant could not by ordinary care avoid the plaintiff's negligence, the plaintiff's negligence is the proximate cause of the injury. The above definition may therefore be expanded by saying that "contributory negligence" in law is that sort of negligence which, being a cause of the injury, is of such a character that the defend- ant could not avoid the effects of it (c). When the plaintiff has proved, according to his evidence, that the act of the defendant has caused the injury of which he complains, the defendant in his turn may prove that the plaintiff, by his own (a) Ch. I., p. 15, note (q). . (b) Thus in the "Donkey Case," Davies v. Mann, 10 M. &W. 546, post, p. 227, the plaintiff's act of tethering ' the donkey was more remote from the injury than the defenc^ant's act of carelessly driving over him, and therefore the plaintiff could recover. So in Radley v. L. & N. W. Ry. Co., post, p. 227, the piling of the truck by the plaintiffs was more remote from the injury to the bridge than the defendant's act of pushing the truck against it. And .see per Willes, J., in Tuff ?;. Warman, 2 C. B. N. S. 757, in Ex. Ch. 5 C. B. N. S. 573. (c) Some of the American Courts it seems will consider the comparative neg- ligence of the plaintiff and defendant. If the plaintiff has been slightly negli- gent he cannot recover unless the defendant has been grossly negligent; Whar- ton on Negligence, 334. But even in Illinois it would seem that when once the plaintiff's negligence is shown to be "proximate" the degrees of negli- gence of plaintiff and defendant will not be considered. Chicago Ry. v. Dim- ick, 96 111. 42. >= j , (1776) CONTRIBUTORY NEGLIGENCE. 153 act contributed to cause the injury, and tbat the plaintiff might, by the exercise of ordinary care, have avoided the consequences of the defendant's neglicrence. But such proof is not in itself sufficient to destroy the plaintiff's claim, and the defendant must go farther and show that the plaintiff's negligence was of such a character that the exercise of ordinary care upon the defendant's part would not have prevented the plaintiff's negligent act from causing the injury (d), and this is the sort of negligence which the law calls "con- tributory negligence." *Another and a different doctrine has sometimes prevailed, [*228] viz., that the plaintiff must be punished for his negligence by being left without remedy for his injury, and this though the defendant might with ordinary care have prevented it. But this seems to be very harsh and unjust towards the plaintiff. If the plaintiff's negli- gence is of so slight a character, that it is in no sense the proxi- mate or efficient cause of the injury, and the defendant can avoid its effects, it seems hard that the plaintiff's injury should remain unredressed; if his negligence is of a grave character, it would probably be such that the defendant could not avoid its effects, and then the plaintiff would be unable to recover. Moreover, it is im- possible to say how much negligence should disentitle the plaintiff to recover, and to say that any negligence, however trivial, should disentitle him, would be obviously unjust. But the rule as laid down in the text presents no such difficulty, for by it the plaintiff becomes disentitled to recover only where the defendant could not by ordinary care avoid the effects of the plaintiff's act, which gives a practical test in each case of the kind and degree of negligence which should disentitle the plaintiff to recover. It should seem that the same doctrine should be held to apply with respect to the negligence of third parties. It may be difficult in the particular case before the Court to determine what is the proximate cause of the damage; but it is a difficulty which it is the duty of the Court to solve as well as it can, and if it arrives at a wrong conclusion, still no injustice is done; but, upon the other hand, to adopt the doctrine that the negligence of third parties is no excuse, would be, in some cases, to do manifest injustice. Where the substantial and proximate cause of the injury is the act of a third party (an act the effects of which the *defendant could [*229J not avoid), the defendant, it is submitted, ought to be excused. It might be that a very serious injury was almost entirely due to the third party, yet because such party is bankrupt the plaintiff has se- (d) Radley «. London & North- Western Ry. Co., L. R. 1 App. Cas. 754; 46 L. J. 573 (pushing an overloaded truck against the top of a bridge) ; Davies v. Mann, 10 M. & W. 546 (donkey case) ; Tuflf r. "Warman, 5 C. B. N. S. 573 (steamer running down a barge); Springett v. Ball, 4 F. & F. 472 (foot passen- ger crossing, negligent, defendant's driver could have avoided). See a curious case of Button v Hudson River Co., 18 N. Y. 258, where defendant ran over a drunken man, when he might, by ordinary care, have avoided him. Gunter v. Wicker, 85 N. C. 310; Colorado Ry. v. Holmes, 5 Col. 197. (1777) 154 CONTF.IBDTOKY NEGLIGENCE. lected the defendant, who had very little to do with the injury, and could not avoid doing it, and has recovered heavy damages against him. It is true that Mr. Campbell, in his admirable sketch of the law of negligence, says that contributory negligence of a third party is no defence, and the same will be found in many text-books (see Shearman, para. 27; but see Wharton, paras. 148 — 155; and see Addison on Torts, 5th ed., by L. W. Cave, Q. C, where the difficulty is mentioned); and the cases usually cited for that propo- sition are those which will be found ante, pp. 17 — 20, Chapter 1, but, as there stated, they appear, on examination, not to warrant such a conclusion. Indeed, they would seem to assume that the negligence of a third party would be an excuse if his act were the proximate cause of the injury, which in those cases was held not to be the fact. And, on the other hand, the cases of Ayles v. South Eastern Railway Co. (e), and Daniel v. Metropolitan Railway Co. (/), would seem to indicate that the negligence of a third party might afford an answer. It must be owned, however, that if the judgment in Hughes v. Maefie, and Abbott v. Macfie {g), cannot be otherwise explained, that case is an authority for saying that the negligence of a third party is no excuse. In that case, Hughes, an infant, had negligently pulled down the flap of a cellar, negligently left almost upright by the defendant. Judgment was given on a motion for a new trial, and it did not appear whether Abbott (another infant), who brought the second action, was jointly en- [*230] gaged with *Hughes»in the negligence. It was held that Hughes could not recover (probably because his act was the proxi- mate cause), and that if Abbott was jointly engaged with him neither could Abbott recover; but if he was not jointly engaged he could not recover from the defendant, as the injiiry was the result of the joint negligence of the defendant and Hughes. Now if from the judgment in the first action it is to be inferred that Hughes' act was the proximate cause, we have here a judgment showing that the defendant would be liable, notwithstanding clear contributory neg- ligence in a third person. But it may be doubted whether, in the first case, the judgment proceeds upon the ground that Hughes' act was the proximate cause. It seems to have been rather on this ground that quoad Hughes, who was a volunteer, the defendent had not been guilty of negligence at all, but quoad innocent persons he had. Pollock, C. B., says that if Hughes had left the flap alone it would not have fallen, and that if the coat of some passer- by had caught it such passer-by might recover (or, in other words, that quoad some innocent party there was negligence in the defendant), and it would follow that if Hughes, the volunteer, and the defend ant quoad Abbott (an innocent party) had been jointly guilty of a (c) Ayles v. South Eastern Ey. Co., L. R. 3 Ex. 146; 37 L. J. Ex. 104. [f) Daniel v. Metropolitan Ey. Co., L. E. 5 Eng. & Jr. App. 45; 40 L. J. C. P. 121. {g) Hughes v. Macfie, 2 H. & C. 744. (1778) DEFENDANT AVOIDING PLAINTIFF'S NE6LIGESCE. 155 tort, each would be separately liable for the whole of the damages upon general principles (h). Probably the difficulty is not of much consequence in practice, because as soon as it is seen that the act of a third party is the proximate cause of the injury then the act of the defendant be- comes remote, and is no longer negligence, unless, indeed, where both acts are equally proximate, which must be very rare. In Burrows v. March Gas Co. (i) the judgment of the Exchequer Chamber went mainly on the ground that the defendants had con- tracted to supply proper piping and had *not done so, and [*'231] that it was immaterial that someone else had been negligent; but it was also said that they ought to h ave taken care that the a pparatus was safe and sufficient. In the Court below (k) the judgment of Kelly, C. B., and Pigott, B., turned entirely on negligence. Kelly, C. B., said " If a man sustains an injury from the sepiirate negligence of two persons employed on his premises to do two separate things, he can, in my opinion, maintain an action against both or either of the wrong-doers." It is well in considering the doctrine of "contributory negli- gence," to remember that after the plaintiff has shown that the de- fendant has been negligent, that then the defendant has to show — first, that the plaintiff has been negligent in respect of the matter complained of, and might have avoided the consequence of the de- fendant's negligence ; secondly, that the plaintiff's negligence has been of such a character that the defendant could not avoid its ef- fects (I). Now it is obvious that the defendant may often fail in proving the first proposition, just as a plaintiff may fail in proving the negligence of the defendant, and a great number of cases will . be found on the books where the question of " contributory" negligence does not really arise although the term is used, but the real ques- tion is the one firstly above stated, viz.. Has the plaintiff been negli- gent at all in respect of the matter complained of, and might he have avoided the defendant's negligence ? Thus in those numerous cases already mentioned (m), where the defendant has invited the plaintiff upon his premises, or has in any other way misled the plaintiff into a feeling of *security (n), the question has [*232] not really been whether the plaintiff has been guilty of " contribu- (A) See post, Ch. VIII., Damages. (i) Burrows v. March Gas Co. , L. E. 7 Ex. 96. (k) Burrows v. March Gas Co. L. R. 5 Ex. 67. (l) The burden of proving contributory negligence is upon the defendant, and it is not for the plaintiff in the first instance to show that he has not been guilty of contributory negligence. There seems to be a great difference of opinion in the American Courts upon this point. See Buesching v. St. Louis Gas Co., 39 Amer. Eep. 503 ; Hart v. Hudson, 84 N. Y. 56. (m) Ante, pp. 131, 132. (n) As in cases of invitation to alight from a railway carriage, see ante, Ch. Ill, s. 9, Carriers, p. 191. (1779) 156 CONTRIBUTORY NEGLIGENCE. tory negligence" or not, but whether under the circumstances he has been guilty of any negligence at all in respect of the injury. If in any of those cases it should be found that he had not been misled, then he "wotild have been guilty of some sort of negligence, and the further question would thereupon have arisen, viz., whether he was guilty of " contributory negligence ;" in other words, whether he had done a negligent act which was the proximate cause of the injury (o). It may seem that there are some cases in which the second propo- sition (p) can scarcely be said to be in issue. Where the defend- ant does an act the consequences of which are beyond his control, as if he leaves a cart in the street, and the horse runs away, and the plaintiff carelessly is driving on the wrong side of the way, it is obvious that the defendant cannot avoid the effects of the plaintiff's negligence in point of fact, but it is his own fault that he has dis- abled himself from doing so, and he must be held liable. If the defendant's negligence is of such a character that he has deprived himself of his power of avoiding the plaintiff's negligence, that is equivalent to his being able to avoid it and negligently omitting to do so. A case, which at first sight might be thought difiBcult to explain, might be thus interpreted : A, a station master, without [*233] looking at his table of trains negligently orders an uptrain *to be turned on the line C, and jumps into the train. B, another station master, at the same moment looks at his table of trains, but negligently looks at them and makes a mistake, and orders a down- train to be turned on the same line C. A' is injured in the collision and brings his action against B. The negligence of both parties is identical in point of time and both in an equally substantial man- ner have contributed ; but B, the defendant, has got to show that he could not by the exercise of care have avoided the plaintiff's (A's) negligence. He cannot show that, for the truth is that his act was of such a character as to render the plaintift's negligence unavoidable. Suppose the defendant, sitting in his trap, negli- gently tied his reins to it, and fell asleep; and his horse started off; the plaintiff negligently was playing at pitch and toss in the street; the defendant, having awoke, could by ordinary care avoid running over the plaintiff, but he was too idle to untie the reins. The de- fendant is liable; but, could it be contended that he would be less liable if he had deprived himself of the power of exercising care in the first instance by letting the reins lie upon the horse's back ? (o) Probably the case of Smith v. St. Lawrence Towboat Co., L. R. 5 C. P. App. 308, may be explained to be ivithin the above principle, although the in- quiry was there never made whether the defendants could have avoided the plaintiff's negligence by the exercise of ordinary care, as it would seem they might. The plaintiff, the owner of the Silver Cloud, was being tugged by the defendant's tug. The Silver Cloud knew there was danger, but did not inform the tug. This may have led the tug into a feeling of security, and so there was no negligence on the part of the tug. (p) Supra, p. 231. (1780) IIEPENDANT AVOIDING PLAIXTIFF'S NEGLIGENCE. 157 Clearly he would be liable, although as a matter of fact he could not avoid the plaintiff's negligence, having put it out of his power to do so. The question whether the defendant could have avoided the con- sequences of the plaintiff's negligence was not put in the old cases, although perhaps substantially the doctrine operated upon the minds of the judges. Thus in Butterfield v. Forrester {q), the de- fendant placed a pole across part of a highway, the plaintiff might have seen it 100 yards off, but he was riding so violently in the streets of Derby that he rode against it and was injured. The court do not inquire whether the defendant could by ordinary care have avoided the plaintiff's negligence, *but it is quite probable [*234] that be could not even if he had been there. A man riding as hard as ho could in a public street, and not able to stop in 100 yards, would probably have come to harm if defendant had done all that a man could do to warn him; So also, as was observed in D. "VY. & W. By. Co. 11. Slattery (r), if a man in broad daylight with nothing to obstruct his view chose to cross a lino in front of an advancing train, it would be his own folly, and the judge might non-suit. No doubt that is so, for his negligence would be of such a character that the defendant could not avoid it, for instance no whistling would be of any avail ; but where, as in that case, it was at night, and the plaintiff was in a hurry to obtain a ticket, a whistle might have stopped him. » It was a question for the jury which was the cavLsa causans, the absence of whistling or the negligence of the plaintiff in not looking out. In a later case the plaintiff admitted that he could have seen the advancing train if he had looked. There was no whistle. There was a man at the gates, but it was not his duty to give warning, and in fact he gave none. It was held by the Court of Appeal (Baggallay, Lr. J., diss.), that the plaintiff was rightly nonsuited. The Master of the Eolls and Lord Justice Bowen thought that there might be some evidence of negli- gence in the defendants in not whistling ; but that the plaintiff's evidence showed that he was clearly guilty of contributory negli- gence, it being understood that the defendants could not by reason- able care have avoided the plaintiff's negligence (s). It cannot be considered to be contributory negligence if the plaintiff has merely not anticipated the defendant's negligence (t), for the plaintiff has a right to presume that *the defendant [*235] is going to act with ordinary care until he has some notice to, the contrary, when it becomes his duty (as we have seen) to take ordi- nary means to avoid it, that is, such means as a prudent man ought (q) Butterfield v. Forrester, 11 Kast, 60. (r) D "W & W. Ey. Co. v. Slattery, L. R. 3 App. Cas. 1166. (s) Davey u L. &S. W. Ry. Co., 11 Q. B. D. 213 ; and in C. A. 12 Q. B. D. 70. (t) Vennal v. Garner, 1 Cr. & M. 21 (ship relying on another taking a certain courae). Geev. Met. Ey. Co., L. E. 8 Q. B. 161 ; 42 L. J. Q. B. 105 (pas- senger relying on defendants having fastened the door). See post, Presumption of Care and Negligence, Ch. VI. (1781) 158 CONTRIBUTORY NEGLiaENCB. to take. And by the same rule the defendant cannot presume the plaintiff's negligence, and provide against it beforehand, but when he is aware of it he is bound to use care to avoid it. The defendant is not excused merely because the plaintiff, knowing of a danger caused by the defendant, voluntarily incurs the danger ; for the defendant may have so acted as to induce the plaintiff as a reasonable man to incur the danger (u). The circum- stances are for the jury. If the plaintiff negligently incurs such danger, that is to say, not acting as a reasonable man would do, he cannot recover (v). If he intentionally incurs the danger he is not negligent, it is true, but he cannot complain of the result, and BO here again he cannot recover (x). It is no excuse for the defendant to say that the plaintiff is doing something illegal (y) unless he can add that the doing so contributed materially to the accident. [*236] *The cases of Glayards v. Dethick (z) and of Wyatt v. G. W. Ky. Co. (a) have been commented on in the recent case of Lax u. Darlington (Mayor of), by Bramwell, L. J. (&), who objected to the phrase, " What would a prudent man do ? " saying that a prudent man might lead a forlorn hope, or might jump out of a fast train if he saw imminent danger to his wife and child ; and in this sense the phrase does seem to be a bad one (c). The defendant cannot be expected to provide against, or to be answerable for, the effects of unusual and extraordinary motives which may tempt a man to incur danger. But the phrase must be taken to mean, '•What would a prudent man do under ordinary circumstances ?" Suppose an average prudent man (so to say ) would endeavor to get out of a train just moving from Peterborough platform if he wanted to go to Newark rather than be carried on to Ketford ; if so, there would be no contributory negligence. But suppose an average pru- dent man would not endeavour to get out if the train had been under weigh two minutes, therefore if any one did so, he would be guilty of contributory negligence ; yet he might be a very prudent man in fact if £100,000 depended upon his stopping at Peterborough ; (u) Dewire v. Bailey, 17 Lathrop. S. C. R. Mass. 169 Cman having to go on slippery side walk) ; Looney v. McLean, 15 Lathrop. S. C. R. Mass. 33 (tenant of flat using dangerous staircase). ((') Clayards v. Dethick, 13 Q. B. 439 (cabman leading horse past heap of soil) ; Humphries v. Armstrong Co., 5G Pem. St. 204 (plaintiff crossing an unsafe bridge) ; Jones v. Boyce, post, 260 ; Adams v. L. & Y. Ey. Co., ante, p. 192.- (x) See remarks of Lord Bramwell in Appendix B. ly) Either in case of breaking an Act of Parliament, see Steele v. Buehart, 104 Mass. 59 ; Sutton v. Wanwantosa, 29 Wise. 21 ; but see Feital v. Middlesex Ry. Co., 109 Mass. 398 ; see Wharton, ss. 331, 381, 405 ; or in case of breaking the common law, as by trespassing, see the cases of falling into an excavation on defendant's land, ante, Oh. II. s. 2, p. 39. (z) Supra. (a) Post, p. 240. h) Lax V. Darlington (Mayor of), L. R. 5 Ex. D. 28 ; 49 L. J. Ex. 105, C. A. (c) See remarks of Lord Bramwell in Appendix B. (1782) PLAINTIFF VOLUNTARILY INCURKING DANGER. 159 but 1 do not think the defendant ought to be answerable for such an unexpected motive (d). It should be observed that in many cases, as in Lax v. Darlington, the defendant has done a wrong which has placed the plaintiff in a position where he has to choose between foregoing what he has a right to do or running a risk of injur}', and the defendant, as a wrongdoer, does not seem to be in a position to take advantage of his own wrong (e), but ought to be *held liable for damages resulting from the risk which he [*237] has compelled the plaintiff to run, if it was reasonable for the plaintiff to run such risk from his point of view, and if the defendant ought to have contemplated that the pl^ntiff might reasonably run such risk. A choice of evils may often be all that is left to a man, and he is not to blame if he chooses one ; nor even if he chooses the greater, if he is in circumstances of difficulty and danger at the time, and has been copipelled to decide hurriedly (/). Where the plaintiff is in a position such that it is his duty to do things which if done in a particular way would be dangerous, but if done in another would not, he is bound to adopt the latter course if the choice is open to him, and not voluntarily and without neces- sity to expose himself to danger (g). It 13 not necessary in all cases that the question of contributory negligence should be left to the jury. If there is no evidence of it, it cannot be left to the jury any more than the defendant's neg- ligence where there is no evdence of that (h). If the facts are clear and undisputed, and show that the plaintiff was guilty of con tributory negligence, the judge may direct a nonsuit, because if that is clearly shown the plaintiff has failed to prove his case, which is that the damage is caused by the negligence of the defendants (i) ; and therefore the question of contributory *negligence does [*238] not arise, but if there is a question of fact upon the issue of con- tribatory negligence, or there are two reasonable but different (rf) Lake Shore Ry. r. Bangs, 47 Mich. 470 (man jumped out -where train omitted to stop to save distress of friend) ; see also Kelly v. Hannibal Ky. Co., 70 Uo. 604. (e) See an article in the Solicitors' Journal for February, 1880. (/) Gunz V. Chicago Ry. Co., 52 Wise. 672 ; Slegrist v. Arnot, 10 Mo. App. 197 , Wilson v. N. P. Ey. Co., 37 Amer. Rep. 410 ; Cuyler v. Dicker, 20 Hun. N. y. 177 {g) Union Ey. Co. v. Leahy, 9 111. App. 353 (fireman going under engine) ; see, however, Jeffrey r. Keokuk Ry. Co., 56 Iowa, 546, 559 ; Farley v. Chicago Ry. Co., 56 Iowa, 337 (standing near railway cars while shunting. ) (7t) Dublin, W. & W. Ry. Co., L. R. 3 App. Cas., see particularly judgment of Lord Penzance, at p. 1180; also Jackson v. Met. Ry., ante, p. 185 ; Davey v. L. & S W Ry., 12 Q. B. D. 70. (i) Bridges v. North London Ry. Co., L. R. 6 Q. B. 377, at page 394 ; and see S. C. in L. R. 7 H. L. 213, from which it seems that in general the safer course is to leave the question to the jury ; see Jackson v. Met. Ky., supra ; see also Gee V. Met. Rv. Co., L. R. 8 Q. B. 171 ; at p. 175 ; Toomey v. L. B. & S. C. Ey. Co., 3 C. B. N. S. 146. (1783) 160 CONTEIBUTOKY NEGLIGENCE. views which may be taken, such questions must be left to the jury (y ). Such questions are often very difficult for the jury to decide, and each case will depend upon its own peculiar facts, and cannot be settled by any general rules. For instance, in the case ofWilkin- son V. Fairie (fc), where a carman was sent to fetch some goods at defendant's warehouse, and he went along a dark passage and fell down a staircase, Bramwell, B., directed a nonsuit, saying, "If it was so dark that the plaintiff could not see, he ought not to have proceeded without a light ; if it was sufficiently light for him to see, he might have avoided the staircase." A similar dilemma having been put by Counsel in Low v. G. T. Ey. (Z), Barrow, J., delivering the judgment of the Court (consisting of six judges), said that "these questions are not to be disposed of by a little neat logic, but can best be determined by practical men on a view of all the facts and circumstances bearing on the issue. A man may be deceived by a half light, and using due care himself may meet with an acci- dent by falling into a chasm where he was not bound to expect to find one." In some of the cases, the Court, in considering the question vrhether there was any evidence to go to the jury of the defendant's negligence, have inevitably been led to consider the conduct of the plaintiff , but it is obvious that the question of contributory negli- gence does not arise until the defendant's negligence has been proved, and therefore it must be remembered that the Court is only speaking of the plaintiff's conduct so far as it throws light upon [*239] the *questioa whether the defendant has been shown to have been guilty of any negligence at all {w). In proceedings for damages, where there has been negligence in both the parties to a collision between ships, the rule is to divide the loss between them {n) ; and in the American Courts it has been held that if the plaintiff's act has aggravated the extent of the damage, he can only recover what he has suffered from the de- fendant's act alone (o); but this has not been the rule in our Courts, but the defendant has been held liable (if at all) for the whole damage (p), except where the effect of the plaintiff's negli- gence is separable from that of the defendant (g). (y) Seeder Lord Penzance in D. W. &W. Ey. v. Slattery, supra ; see Jack- son «. Met. Ry., supra. Uc) 32 L. J. Ex. 73 ; 1 H. & C. 633. m 39 Amer. Eep. 331. (to) See judgment of Lord Penzance in D. W. & "W. Ey. Co., L. R. 3 App. Cas. at p. 1177. (n) See Williams v. Bruce, Ad. Prac. 72; and see Judicature Act, 1873, s. 25 (9) , and see ante, s. 16, Ships. (o) Sherman i\ Fall River Iron Co., 2 Allen, 524; Chase v. New York Cen- tral Ey. Co., 24 Barb. 273; Lawrence v. Housatonie Ey. Co., 29 Conn. 390. (j)) Greenland v. Chaplin, 5 Ex. 243; and see ante, Ch. I., p. 15, as to rule relating to proximate damage. (q) See the cases, ante, p. 16, Ch. I, Proximate Causes; and see post, Ch. VIII, Damages. (1784) SERVANT ENTERIXG DANGEROUS SERVICE. 161 Tlie cases where a servant has entered upon a particular em- ployment with notice of its dangerous condition are somewhat peculiar, but it must be remembered that there is a contract, or mutual consent, on both sides to accept the existing state pf things. The defendant is said to be guilty of negligence in keeping his premises or machinery in a dangerous state, and the plainlifF is guilty of negligence in accepting the service, or in his acts, as the case may be. Now, although the defendant might have prevented the damage by ordinary care, still he was not bound to do so by reason of the consent of the plaintiff to the existing state of things, and therefore the plaintiff's negligence becomes equivalent to "con- tributory negligence" (r). These cases are the converse of those above mentioned, *where the defendant has, so to say, [*240] bound himself by his conduct to save the plaintiff harmless, for here the plaintiff by his conduct agrees to accept the danger, or to save the defendant harmless (r). It is a matter of common sense that a person who is crossing a railway line upon a level should look before he crosses (s) ; but, possibly, if there were a statutory duty upon the railway to keep gates or guards, the defendants might mislead the plaintiff into a feeling of security, and his not looking when the gates were open or unguarded, might not be evidence of negligence (t). The case of Wyatt v. Gt. W. Ry. Co. (u) is a singular one. There was a statutory duty upon the defendants to erect gates, and the plaintiff coming when there was nobody to open the gates opened them himself, and they closed upon him and injured him. The majority of the Court (Cockbum, C. J., Crompton and Shee, JJ.) held that the public right of way was obstructed by statute, and the plaintiff had no right to remove the obstruction; but Blackburn, J., dissenting in a very clear judgment, said that if the plaintiff had not contributed to the injury by aay want of ordinary care, he could recover, as he had a right to go along the road sub- ject to the proper and legal obstruction by the defendants. It has been decided several times, and must be taken as the law, that not only will the plaintiff be disentitled to *recover, [*241] if he has been guilty of contributory negligence himself, but also if those with whom he is identified have been guilty of contribu- (r) Senior v. "Ward, 1 Ell. & Ell. 385; Caswell v. Worth, 5 E. & B. 849; see ante, p. 71, Master and Servant. (r) It is a question for the jury what amount of danger the plaintiiF under- took to incur, and the defendant is not excused for an amount of negligence beyond that; see Clayards v. Dethick, 12 Q. B. 439, ante, p. 236. • (s) Stubley v. L. & N. W. Ey. Co., L. E. 1 Ex. 20; 35 L. J. Ex. 3; Skelton V. L. & N. W. Ry. Co., L. E. 2 C. P. 631; 36 L. J. C. P. 249. (t) Stapleyii. L. "B. & S. C. Ry. Co., L. E. 1 Ex. 21: 35 L. J. Ex. 7; see Skelton v. L. & N. "W. Ey. Co., supra; see Davey v. L. & S. "W. Ry. Co., ante, p. 237 (guard at the gate having no statutory duty to warn). (u) Wyatt V. Gt. W. Ey. Co., 6 B. & S. 709. Commented on iu the recent case of Lax v. Darlington, ante, p. 236. 11 LAW OF NEQ. (1735) 162 CONTEIBUTOEY NEGLIGENCE. tory negligence (a;). The above rule has been disapproved of in Scotland (see Campbell on Negligence, 2nd ed., p. 185), and "in America the rule is that the plaintiff is only defeated by showing that the person whose negligence is sought to be imputed to the plaintiff is under his direction, or that he controlled the plaintiff's personal conduct (see Shearman on Negligence, para. 46). In one case in America it was held that a wife driven by her husband was not identified with unless she encouraged him in his negligence {y). Also,^ it should be remembered that the case of Thorogood v. Bryan, supra, has been disapproved of in Tuff v. Warman, supra, and in The Milan (z). It is also disputed in the note to Ashby v. White (a). But it seems to be settled law according to Waite v. N. E. Ey. Co., post, and Armstrong v. L. & Y. Ry. Co., supra; and to the same effect is the case of Child v. Hearn (b), although the Court seemed anxious to distinguish the case from Thorogood v. Bryan by saying that the plaintiff was the servant of the railway company, whose fences were out of repair, and whose line he was using as such servant for the cc^mpany's purposes when the de- fendant's pigs upset his trolly and injured him. Probably this [*242] ease can be better supported on the ground that *the dam- ages were too remote (c). The case of Kigby v. Hewitt (d) ap- pears to be in favour of the counter-propositian, but the judgment is unsatisfactory. Two omnibuses were racing, and the point was taken upon the argument that the plaintiff was identified with the owner of the omnibus, and Thorogood v. Bryan was cited; but the judgment does not deal with that question, but seems to go upon the ground that the defendant's omnibus was the cause of the in- jury and not the plaintiff's. It is suggested in the notes to Ashby v. White, 1 Sm. L. C. p. 227, 6th ed., that both the wrongdoers are liable to the innocetit plaintiff passenger ; which is only another way of saying that the passenger is not identified with his driver ; for, if he be, he has no remedy against his own driver, for they are joint tortfeasors, and he has no remedy against the other driver because his own driver (with whom he is identified) has contributed to the injury. It is (x) Thorogood v. Bryan, 8 C. B. 115 (plaintiff, a passenger in an omnibus, Identified with owner); Cattlin v. Hill, ib. (plaintiff passenger on a steamer); Armstrong v. L. & Y. Ey. Co., L. E. 10 Ex. 47; 44 L. J. Ex. 89 (plaintiff, an Inspector, travelling in train by pass run into by train of another company); Otis V. Janesville, 47 Wis. 422. {y) Pliitz V. City of Cohoes, 24 Hun. 101; Mann v. Weiand, 81 J Pa. St. 243 (passenger allowed to ride on waggon). (z) The Milan, 1 Lush. 388. (a) Ashby v. White, 1 Sm. L. C. 6th ed. 266. (6) Child V. Hearn, L. E. 9 Ex. 476; 43 L. J., Ex. 100 (plaintiff servant of railway company, who had neglected to fence, pigs of defendant got on line and upset plaintiff's trolly); Sherman «. Anderson, 41 Amer. Eep. 414 (steer on line). (c) Addison on Torts, 5th ed., p. 27, note (/). (d) Eigby v. Hewitt, 5 Ex. 240. (1786) INFANTS. 163 submitted that the cases of " identification " have gone too far, and that a mere passive passenger in public conveyance cannot be answerable for the acts of the driver. The doctrine of contributory negligence is applied to children, and to those having the control of them (e). *In one case Channell, B., at nisi prius is reported to have [*243] said : " The doctrine of contributory negligence does not apply to an infant of tender age " (/). This rule is scarcely satisfactory, because it is difficult to say what is or is not a tender age ; but a better rule which would prob- ably excuse the negligence of a child of tender age is that a child is only bound to exercise such a degree of care as children of his par- ticular age may be presumed capable of exercising (g). In an American case where the child was six years old, and shook a gate which had been negligently hung, and which fell upon him, and the jury found that considering the age and circumstances there was no negligence in the child, the verdict was upheld (h). This is in truth nothing more than an illustration of the ordinary rule that what is negligence in anjr particular person depends upon all the circumstances of the case {i). In Lynch v. Nurdin (fc), the defendant had been guilty of negli- gence in leaving a cart unattended ; but in Hughes w. Macfie (Z), (e) Singleton r. East Count. Ry. Co., 7 C. B. N. S. 287 ; Waite v. N. E. Ry. Co., E. B. & E. 719. In America this appears to be limited (in the case of persons having the control of infants) to their negligence in placing the infant in a position of (Tanger, but not to their negligence in respect of their own par- ticular acts, Shearman p. 59, para. 48. Callahan v. Sharp, 27 Hun. N. Y. 85 ; Canley v. Pittsburgh Ey. Co., 40 Amer. Rep. 6G4 ; St. Louis Ry. Co. v. Free- man, 36 Ark. 41. In America it seems even that in a suit by a child, contrib- utory negligence, either of the child or its parent, cannot be set up as a defence ; hot in an action by the parent forcausing the death of the child, thenegligence of the parent can be pleaded, Penns. Ry. Co. v. James, 81 J Pa. St. 194. In the following Scotch cases the plaintifls were held disentitled to sue for injury done to their children on the ground that it was contributory negligence in them to let their children go out alone. Davidson v. Monkland Ry. Co., 27 Jnr. 541 ; Lumsden v. Rus-sell, 28 Jur. 181 ; Balfour v. Baird, 30 Jur. 124 ; and see an American case, Atchinson Ry. Co. v. Flinn, 24 Kan. 627. (/) Gardner v. G-race, 1 F. & F. 359 (child three and a-half years old run over by defendant), action brought in name of child ; Fink v. Missouri Furnace Co., 10 Mo. App. 61 (child four years old incapable of negligence) ; Gavin v. Chicago City, 37 Amer. Rep. 99 ; Chicago Ry. Co. v. Schumilowsky, 5 111. App. 613. io) Glover v. Gray, 9 111. App. 329 ; Vickers v. Atlanta Ry. Co., 64 Ga. 306 ; Chicago Co. v. Smith, 40 Amer. Rep. 669, note (bov eight years old on engine) ; Byrne v. N. Y. Central Ry., 83 N. Y. 620 ; Donoho v. Vulcan Iron "Works, 7 Mo. App. 447. (h) Birge v. Gardiner, 19 Conn. SOT*. (/) See in Lynch v. Nurdin, 1 Q. B. 29 at p. 36 and at pp. 38, 39, and Lay v. Midland Ry. Co., 34 L. T. N. S. 30 (child seven years of age sliding along the railings of a bridge .slipped through) ; Hughes w. Ma<^fie, 2 H. & C. 744, seems, however, scarcely to recognise such an excuse, see Coleman v. S. E. Ry., 4 H. & C. 699 (boy of twelve years of age). (k) See ante, p. 20. (I) See ante, p. 229. (1787) 164 CONTRIBUTORY NE&LIGENCE. [*244] the cellar-flap would not have fallen if the *child had let it alone. So in Mangan v. Atterton (m), the machine would not have gone round without the deliberate act of the children, but that case has been doubted in Clark v. Chambers (n), and it is said that the defendant was guilty of negligence in leaving the machine unguarded, which would bring the case within Lynch v. Nurdin. As to contributory negligence under the Employers' Liability Act, see ante, pp. 96, 100. (m) Maflgan v. Atterton, L. R. 1 Ex. 239 ; 35 L. J. Ex. 161 ; see anie, p. 20. (n) Clark v. Chambers, 47 L. J. Q. B. 439 : L. E. 3 Q. B. D. 237 ; ante, p. 20. (1788) (165) *CHAPTEE VI. [*245] PRESUMPTIONS OF CARE OR NEGLIGENCE. Res ipsa loquitur. Thebe is a presumption in favour of all persons that they will exercise care in the performance of their duties. It is presumed in favour of the defendant; and, therefore, the plaintiff is in all cases bound to give evidence of negligence. It is also presumed in favour of the plaintiff, and if the defendant wishes to rebut that presump- tion he must give evidence of the plaintiff's negligence, and, in order to defeat the plaintiff's right of action, he must go further and show that the plaintiff's negligence was "contributory negligence" in law, see ante, Chapter V. Persons have a right to proceed to the performance of their duties upon the presumption that others will exercise ordinary care in the performance of theirs, and unless they have some reasonable ground for supposing that others are not going to exercise care, or are en- gaged in something requiring additional precaution, they are not guilty of negligence in omitting to provide against such unforeseen danger (a). It has already been stated, that in actions of negligence (as in- deed in all actions) the plaintiff must give some proof of his case beyond a mere scintilla of evidence, and if he does not, it is the duty of the judge to direct a *non-suit (b). The question [*246] of what is sufficient evidence to go to the jury is one for the judge in the particular case before him; but there are a class of cases in which there has been no direct evidence of any particular act of negligence, beyond the mere fact that something unusual has hap- pened, which has caused the injury; and upon the maxim, or rather phrase, "res ipsa loquitur" it has been held that there is evidence of negligence. As the phrase imports, there must be something in the facts which speaks for itself, and therefore each case will de- pend upon its own facts, and it will be difficult to lay down any guiding principles. It may, perhaps, be safely stated that where a certain course of action has been pursued by any person without in.- jury to others, and he, upon changing that course, injures another, the thing (unexplained) speaks for itself that such person has been negligent (c) ; or if something unusual happens with respect to the (a) Daniel v. Met. Ry. Co., L. R. 5 Eng. & Ir. App. 45. (h) Ante, p. 14, note (e). (c) Kearney v. L. B. & S. C. Ry., L. R. G Q. B. 759; 40 L. J. Q. B. 285; Byrne v. Boadle, 2 H. & C. 722; 33 L. J. Ex. 13; Scott /-. London Dock Co., 34 L. .1. Ex. 17; 3 H. & C. 59; per Pigott, B. (bags of sugar falling from crane); M'Mahon v. Davidson, 12 Minn. 357 (bursting of a boiler on a steamer). (1789) 166 PRESUMPTIONS OF CARE OR NEGLIGENCE. defendani's property, or something over which he has the control which injures the plaintifP, and the natural inference on the evidence is that the unusual occurrence is owing to the defendant's act, the occurrence being unusual it is said (in the absence of explanation) to speak for itself (d), that such act was negligent. [*247] *Where upon the other hand, something unusual occurs which injures the |)laintifP, but such unusual occurrence is not even inferentially the result of any unusual act of the defendant, and the defendant has, so far as he is concerned, been pursuing his usual course, which has heretofore been done in safety, then the unusual occurrence is what is called an accident, or is perhaps the fault of the plaintiff himself (e). Care should be taken here to distinguish those cases where an accident happens through the neglect of the defendant, although things are allowed to go on in their usual course in one sense, that is to say, they are left to get out of order by neglect; but this is in truth a distinct act of negli- gence in omitting to examine and repair, and the accident is caused by an unusual circumstance induced by the act of the defendant. Such a case is that of Webb v. Eennie, 4 F. & F. 608, and probably some of the cases in the note, supra, as to carriage accidents are explainable on this ground. [*248] *It is clear that the cause of the accident must be con- nected with the defendant either by direct evidence that it is his act, or that it is under his control, before it can be presumed that he has been negligent (/). It also seems clear that the phrase ((7) Briggs V. Oliver, 3.5 L. J. Ex. 163 (packing case propped agaiast wall) ; Czech V. General Steam Navigation Co., L. K. 3 C. P. 17 (oil on vessel getting into cargo); Moffat v. Bateman, h. R. 3 P. C. 115 (bolt-pin of carriage giving way, plaintiff invited into defendant's carriage). It was observed in this case that there is nothing unusual in a carriage accident per se, as there is in the falling of bags of sugar, as in Scott v. London Docks, supra; Simson v. L. G. Omnibus Co., L. E. 8 C. P. 390; 42 L. J. C. P. 112 (^omnibus horse kicking, unusual occurrence); Mullen v. St John, 57 N. Y. 567 (fall of building into street); Stokes v. Saltonstall, 13 Peters, 181 (stage coach upset); and also Christie v. Griggs, 2 Camp. 79, per Lord Mansfield, sed quiere, if a carriage acci- dent is not unusual, why should a stage coach accident be so; and see Temjjle- man v. Haydon, 12 C. B. 507; "Welsh v. Lawrance, 2 Chit. 262; Doyle v. Wragg, 1 F. & F. 7. A collision between two trains under the control of the same com- pany, Skinner v. L. B. & S. C. Ry. Co., 5 Exch. 787; Carpue v. L. & B. Ry. Co., 5 Q. B. 751; Iron Ry. Co. v. Mowery, 38 Amer. Rep. 597; running off the line, Dawson v. M. S. & L. Ry. Co., 5 L. T. 682; Bird v. G. N. Ry. Co., 28 L. J. Ex. 3; Flannery v. W. & L. Ry. Co., 11 Ir. R. C. L. 30; Pittsburgh Ry. Co. i. Williams, 74 Ind. 462; George v. St. Louis Ry. Co., 34 Ark. 613; a.Te primd facie evidence of negligence; Philadelphia Ry. Co. v. Anderson, 39 Amer. Rep. 387 (washing away of an embankment); 9 Mo. App. 478 (railway carriage starting with a jerk). See also the cases, ante, Ch. Ill, s. 9, Carriers. So the giving way of any part of the line is primct facie evidence, and conclusive unless rebutted, G. W. Ry. Co. of Canada v. Fawcett, 1 Moo. P. C. N. S. 101. (e) See the Railway Cases, ante, a. 9, Carriers; and see Abbott v. Freeman, 35 L. T. N. S. 783, reversing judgment of Exchequer, and see judgment of Pol- lock, B., in Court below, 34 L. T. N. S. 544. {/) Higgs V. Maynard, 12 .Tnr. N. S. 705 (ladder in defendant's workshop broke a window; held that plaintiff must show that ladder was under de- fendant's control), and see Welfare 1). L. B. & S. C. Ry., L. R. 4 Q. B. 693, (1790) RES IPSA LOQUITUR. 167 cannot apply to cases where it ia open to doubt whether the plain- tiff has not neglected some duty devolving upon him {g). Where there is no duty upon the plaintiff, or where the duty which he has to perform has been performed by him, it is clear that the negli- gence of the plaintiff is out of the question; and, if the accident is connected with the defendant, the question whether the phrase ^'' res ipsa loquitur" applies or not, becomes a simple question of common sense. A very good illustration upon this point is put by Willes, J., in giving judgment (/i) in the case of Czech v. The General Steam Navigation Co. : " If a shipment of sugar took place under a bill of lading, such as the present one, and it was proved that the sugar was sound when put on board, and had become converted into syrup before the end of the voyage, if that was put as an abstract case I think the shipowner would not be liable, because there may have been storms which occasioned the injury, without any want of care on the part of the captain or crew; the injury *alone, there- [*249] fore, would be no evidence of negligence on their part. But if it was proved that the sugar was damaged by fresh water, then there would be a strong probability that the hatches had been negligently left open, and the rain had so come in and done the injury, and, though it would be possible that some one had wilfully poured fresh water down into the hold, this would be so improbable that a jury would be justified in finding that the injury had been occasion- ed by negligence in the management of the ship" (»"). The mere fact of a man driving on the wrong sic^ of the road is, it seems, no evidence of negligence in his having run over a foot passenger {k), but probably driving on the wrong side is pnmd facie evidence in case of collision with another vehicle ; and the reason is, that in the latter case the other vehicle is on its right side, which seems to negative any negligence on the part of its driver, whereas in the case of the foot passenger there is nothing io show whether he was negligent or not {I). Of course when the circumstances are explained the rule does where Court would not presume that a man on a roof was in the employ of the owner. See this case, post, p. 250. Smith v. G. E. Ry. Co., L. K. 2 C. P. 10 (dog not under the control of the defendants got upon the platform and bit the plaintiff); "Wright v. Midland Ky. Co., L. E. 8 Ex. 137; 42 L. J. Ex. 89 (driver of North Eastern train negligently disregarding Midland signals). (g) This would appear from the case of Cotton v. Wood, 29 L. J. C. P. 333, where there were reciprocal duties upon the foot passengers to look out for vehicles and for drivers to look out for foot passengers. See Hammack v. White, 11 C. B. N. S. 588; 31 L. J. C. P. 129. Ih) Czech V. General Steam Navigation Co., L. E. 3 C. P. 18; 37 L. J. C. P. 3. (i) See also ;)cr Cockbum, C. J., in Kearney v. L. B. & S. C. Ry., supra, where he suggests it is possible but not probable that the brick might have fallen out of the railway arch through change of temperature. {k) Lloyd V. Ogleby, 5 C. B. N. S. 667. The case scarcely seems to decide this satisfactorily. See also Chaplin v. Hawse, 3 C. & P. 554. (/) We have seen, ante, p. 29, that a man driving on the wrong side is bound to use more than ordinary care. (1791) 168. PRESUMPTIONS OF CARE OE NEGLIGENCE. not apply ; so that where the injury arises from circumstances over which the defendant has no control, and he has exercised a proper amount of care but to no effect, he is not liable in an action of neg- ligence (m). [*250] *The mere fact of an accident is not, however, evidence of negligence (n). " Where a person desires to have the roof of a building repaired he employs some one not only to repair the roof but to see to. its condition ; and if he employs a competent person, the business of that person upon proceeding to repair the roof is to look at its con- dition, and lo see how far it will support him or his workmen in doing the necessary work" (o). And therefore, in the absence of any evidence to show that the defendants knew of the insecurity of the roof, it was held that the mere fact of a plank and roll of zinc falling through a roof while a man was on the roof was no evidence of negligence against the defendants (p). The thing did not speak for itself, first, because there probably was some doubt as to whether it was the defendant's (or his servant's) act at all ; and next, be- cause it could not be shown that the defendant was negligent unless kiiowledge of the insecurity of the premises was shown. The Court also said that they could not presume that the man on the roof was in the employ of the owner, as he might be in the employ of a contractor (q). (to) Hammack v. White, 11 C. B. N. S. 588 ; 31 L. J. C. P. 129 (man on horse on footpath shown to have done his hest to keep off) ; Latch i'. Rumner Ry. Co., 27 L. J. Ex. 15.5 (train off line ; act of stranger) ; Wakeman v. Rob- inson, 1 Bing. 213 (defendant's horse in gig frightened by butcher's cart) ; Gib- bons ('. Pepper, 1 Ld. Raym. 38 (horse frightened by thunder) ; North v. Smith, 10 C. B. N. S. 575 {contra, if spur be used) ; Manzoni <•. Douglas, 6 Q. B. D. 145 (horse and brougham on footway bolted without cause, man did his best.) (») Hammack v. White, 11 C. B. N. S. 676 ; Bird v. Gt. Northern Ry., 28 L. .T. Ex. 3 ; Welfare v. Brighton Ry. Co., L. R. 4 Q. B. 998 (roll of zinc fell through a roof) ; Smith v. G. E. Ky. Co. ante. (o) Per Cockburn, C. J. (p) Welfare r. The L. B. & S. C. Ry. Co., L. R. 4 Q. B. 693 ; 38 L. J. Q. B. 241. (q) In America it has been held that the falling of a piece of wood from a building during repairs is prima facie evidence of negligence in the owner : Clare ?>. National City Bank, 1 Sweeny, 539. And so also that drivers of car- riages are in the service of the owners : Norris v. Kohler, 41 N. Y. 42. (1792) (169) *CH AFTER VII. [*251] LORD CAMPBELL'S ACT. At Common Law a civil action would not lie for an injury caus- ing death (a), but a remedy has in certain cases been provided by a statute passed in 1846, and commonly called Lord Campbell's Act (6), which after reciting, that — whereas no action at law is now maintainable against a person who by his wrongful act, neglect, or de- fault may have caused the death of another person, and it is often- times right and expedient that the wrongdoer in such case should be answerable in damages for the injury so caused by him,- — by section 1 enacts that "whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for and damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as would amount in law to felony." By section 2, " every such action shall be for the benefit of the wife, husband, parent, and child (c) of the person whose death shall have been so caused, and shall be brought *by and in the name of [*252] the executor or administrator of the person deceased; and in every such action the j ury may give such damages as they may think propor - tioned to the injury resulting from such death to the parties respect- ively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct" (d). By section 3, "Provided always that not more than one action shall lie for and in respect of the same subject-matter of complaint; and that every such , action shall be commenced within twelve cal- endar month* after the death of such deceased person." By section 4, " In every such action the plaintiff on the record shall be required, together with the declaration, to deliver to the defend- ant or his attorney a full particular of the person or persons for whom and on whose behalf such action shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered." (a) Baker v. Bolton. 1 Camp. 493. (ft) 9 & 10 Vict. c. 93. (e) An illegitimate child is not within the statute; Dickenson v. N. E. Ey. Co.. 2 H. & C. 735 ; 33 L. J. Ex. 91. (d) See 27 & 28 Vict. c. 95, ss. 1, 2 ; and also 31 & 32 Vict. c. 119, s.. 25. (1793) 170 LOKD Campbell's act. By section 5, " The following words and expressions are intended to have the meanings hereby assigned to them respectively, so far as such meanings are not excluded by the context or by the nature of the subject matter; that is to say, words denoting the singular number are to be understood to apply also to a plurality of persons or things; and words denoting the masculine gender are to be under- stood to apply also to persons of the feminine gender; and the word ' person ' shall apply to bodies politic and corporate ; and the word ' parent ' shall include father and mother, and grandfather and grandmother, and stepfather and stepmother; and the word 'child' shall include son and daughter, and grandson and granddaughter, and stepson and stepdaughter." [*253] *By section 6 the Act is not to apply to Scotland. The doctrine of contributory negligence applies (e) to actions under Lord Campbell's Act. A mother having a legal claim for support from her son, who is actually supporting her at the time, may bring an action under the statute for the loss of such support, and, it seems, even if the claim for support were a mere moral claim (/). In an action brought for the benefit of the father of the deceased, who was nearly blind and injured in his limbs, and who could not work so well as he used, it was proved that the son used to contribute to his support, and that five or six years previously the son had con- tributed money out of his earnings, but had not done so since, it was held that there was evidence for the jury of pecuniary loss to the father (g). If the party injured receive compensation in satisfaction of all claims before his death, an action will not lie after his death, for his death does not create a fresh cause of action (h). . The jury cannot take into consideration mental suffering or loss of society (i). Damages of a pecuniary nature must be shown (j), and they must not be of a merely nominal character (k). [*254] It is not necessary, however, to show the Ions of a legal *right, a loss of reasonable expectation of benefit being sufficient to support the action (I). (e) Senior v. Ward, 1 El. & El. 385 ; 98 L. .7. Q. B. 139 ; Wigmore v. Jay, 5 E-xdh. 354 ; Tucker v. Chaplin, 2 C. & K. 730. ( f) Weems v. Mathieson, 4 Macq. H. L. Cas. 215. (g) Hetherington v. N. E. Ey. Co., 9 Q. B. D. 160. (70 Read v. G. Eastern Ey. Co., L. R. 3 Q. B. 555 ; 9 B. & S. 714 ; 37 L. J. Q. B. 278 ; Griffiths v. Earl of Dudley, 9 Q. B. D. 357. ()■) Blake t). Mid. Ry. Co", 18 Q. B. 93. In Scotland they may. Patterson r. Wallace, 1 Macq. H. L. Cas. 748. (j) Franklin v. S. E. Ry. Co., 3 H. & N. 211. (k) Boulter v. Webster, 13 W. R. 289 ; 11 L. T. N. S. 598 ; Duckworth v. Johnson, 4 H. & N. 653 ; 29 L. J. Ex. 25. Nominal damages may be recov- ered in America. Shearman, s. 299. (l) Franklin v. S. E. Ry., supra ; Dal ton r. S. E. Ry. Co., 4 C. B. N. S. 296 ; 27 L. J. C. P. 227 ; Pym v. Gt. Northern Ry. Co., infra. • (1794) LORD Campbell's act. 171 Expenses of funeral and mourning are not recoverable (m). It was held in one case that damages are not to be estimated according to the value of the deceased's life calculated by annuity tables, but the jury are to give a fair compensation (n) ; but it has been decided that where the deceased had covenanted to pay an annuity to the plaintiff, the tables might be consulted to show the value of his loss (o). In the latter case the deceased was bound by his covenant, but in the former case the deceased might have varied the disposal of his income. It seems equally objectionable to allow the jury to suppose that they are bound by the tables or to prevent them from availing themselves of the assistance of the tables. The deceased may have been in possession of a fixed income, so that if he had lived his injuries would not diminish his income, but the loss, though arising from the injuries, is practically suffered from the fact of the death causing the fixed income to be distributed ; in such case the reasonable expectations of the persons entitled under the Act, and whose interests have been injuriously affected by the death, have to be considered, and even the loss of means of education and of the comforts and conveniences of life (p). *A wife received an injury on a railway to the pecuniary [*255] loss of her husband. On his death she sued the company to re- cover as testatrix f or^ such loss. It was held that, the action being on the contract to carry safely, and the loss having accrued to the personal estate, the action survived to her (q). And so it was held that an executrix might recover for loss sustained by her husband being injured and unable to attend to business till his death (r). The maxim actio personalis moritur cum persond applies however where the cause of action is in substance an injury to the person, and not an injury to the personal estate. So that for the merely consequential expenses arising from the injury to the person, no action can be brought by the personal representative (s). As to distribution of damages between widow and children, see Sanderson v. Sanderson {t). Shallow v. Verden (m). It seems that a judgment recovered for damages for injuries causing death is no bar to an action for injuries to deceased's per- sona! property arising from the same negligence {x); audit is pre- sumed the converse would hold good. (m) Daiton v. S. E. Ey. Co., supra. See, however, Osborne v. Gillett, post, p. 255 ; Murphy v. New York Ky. Co., 88 N. Y. 445. in) Armsworth v. S. E. Ey. Co., 11 Jur. 758; and see the judgment of Brett. J., in Rowley v. L. & N. W. Ry. Co., infra ; Philips v. L. •& S. W. Ry. Co.. 5 Q. B. D. 78 ; 49 L. J. Q B. 233. (o) Rowley v. L. & N. "W. Ry. Co., 42 L. J. Exch. 153 ; L. R. 8 Exch. 221. \p) Pym V. Gt. Northern Ey. Co., 4 B. & S. 396 ; 32 L. J. Q. B. 377. (q) Potter v. Met. Ry. Co., 32 L. T. N. S. 36, (Ex. Ch.). (r) Bradshaw v. Lane, and York. Ry. Co., L. R. 10 C. P. 189; 44 L. J. C. P. 148. See remarks in Leggott v. Gt. N. Ry. Co., 1 Q. B. D. 604. (s) Pulling V. Gt. Eastern Ry. Co., 9 Q. B. D. 110. (t) Sanderson v. Sanderson, 36 L. T. N. S. 847. («) Shallow V. Verden, 9 Ir. R. C. L. 150. \x) Bamett v. Lucas, 6 Ir. E. C. L. 247. (1795) 172 LORD CAMPBELL'S ACT. It is no answer to an action under this statute that the act caus- ing the injury was a felony which has not been prosecuted (y). The plaintiff's daughter was killed by the defendant's negligence, and he claimed damages for the loss of her services; the defendant pleaded that the daughter was killed on the spot. It was held by L*256] the Court (Kelly, C. B., *and Pigot, B., Bramwell, B., dis- senting) that the plea was a good answer, on the ground that the case of master and servant did not come within the statute, and that apart from the statute no action lay (z). This judgihent does not seem to be altogether satisfactory. It seems to be the law that a master cannot recover for loss of services where the servant is killed, but only where he is disabled; and, therefore, as far as the claim to damages for loss of services, it would seem (notwithstanding the powerful reasoning of Bramwell, B., and the admission of Pigott, B., that the distinction is "shadowy") that the law is that the master cannot recover. But in the above case there was also a claim for burial expenses of the daughter, and the plaintiff claimed for expenses for burying his daughter (not as his servant), and it does not clearly appear why the Court (not apparently upon the authority of Dalton v. S. E. Ey., supra, p.- 254, as that case was not cited, but upon the ground that the death of the daughter was in- stantaneous) held he could not recover. The attention of the Court was not called to two American cases, viz.. Murphy v. New Haven Co. (a), and Whitford v. Panama Ey. Co. (&), where it has been pointed out that death is not absolutely instantaneous with the in- jury, and there must be a moment of time in which the deceased had a right of action which (by the statute) survives to the repre- sentative. In Massachusetts and Maine the Courts have held that there is no right to sue for an injury causing instant death ; but in Connecticut and other States, as we have seen, the contrary has been held, and Messrs. Shearman and Eedfield incline to the latter opinion. In the c:;se of injury done to a servant, the master sues for the wrong done to himself, but in the case of a representative [*257] under *Lord Campbell's Act the plaintiff is suing for the injury done to the deceased and thereby causing loss to others. The damages must arise from the loss of a benefit derived from the relationship between the deceased and of the parties claiming compensation, not from a contract made between .him and them (c). On the other hand, in reduction of damages, the benefit arising from a life insurance against accidents may be taken into account (d). The Employers Liability Act, 1880, ante, p. 89, applies to cases under Lord Campbell's Act. (y) Osborne v. Gillett, L. K. 8 Exch. 88; 42 L. J. Ex. 53. h) Osborne v. Gillett, 43 L. J. Ex. 53; L. R. 8 Exch. 88. (a) Murphy i'. New Haven Co., 30 Conn. 184. (b) Whitford v. Panama Ry. Co., 23 N. Y. 486. (c) Sykes v. N. E. Ry. Co., 44 L. J. C. P. 191. (d) Hicks )'. Newport Ry. Co., 4 B. & S. 403, note to Pym v. G. N. Ey. Co., and ese Bradburn v. G. W. Ry. Co., L. E. 10 Ex. 1. (1796) (173) •*CHAPTEK VIII. [*258] BAMAGES. "It is not to be expected," said Mr. Justice Cresswell, "that a jury [in a case of tort] will measure their verdict so nicely as in cases of contract" (a), and no doubt this applies to cases of neg- ligence, and receives a constant illustration in the verdicts given by juries in actions arising out of railway accidents. In some cases the amount of damages will depend upon the char- acter of the negligence, as for instance if it be of a reckless char- acter (b). And upon the other hand it would seem that the conduct of the plaintiff (not amounting to contributory negligence so as to be an answer to the action), may be given in evidence in mitigation of damages (c). It is said that exemplary damages will not be allowed against a master for the negligence of his servants, however gross, if he is personally free from fault, and has maintained personal supervision over them(d), but if a man *employs a notoriously drunken [*259] driver (e) he is answerable for his negligence. Recovery of insurance money cannot be set up in mitigation of damages for negligence (/). Where the plaintiff sued the owner of an omnibus for personal injuries, but had accepted a sum of money from the driver awarded by a magistrate as compensation, it was held a good answer to the action, even though the sum was quite inadequate, and although the money was paid by the driver and not by the owner of the om- nibus (g). So if a plaintiff obtains a judgment against a master or a servant, he cannot afterwards sue the other of them (h). (a) Williams v. Currie, 1 C. B. 848 ; Huckle v. Money, S.Wills. 205. (6) Emblem v. Meyers, 6 H. & N. 54 ; 30 L. J. Ex. 71 ; Bell v. Midland Ey. Co., 10 C. B. N. S. 287 ; 30 L. J. C. P. 273 ; Wallace v. New York, 2 Hilt. 440 ; Heil V. Glanding, 42 Penn. St. 493 ; Thomas v. Harris, 27 L. J. Ex. 353. (e) Arden v. Goodacre, 11 C. B. 371 ; Perkins v. Vaughan, 7 Sc. N. R. 886 ; Walton V. Christie, 2 B. & P. 224 ; Linford v. Lake, 3 H. & N. 276 ; 27 L. J. Ex. 334 ; Raisin v. Mitchell, 9 C. & P. 613 ; Atlanta Ry. Co. v. Wyly, 65 Ga. 120 ; Dush V. Fitzhugh, 2 Lea (Tenn.) 307. So also the defendant may show that some of the injury done would have happened apart from his act, Workman v. G. N. Ry. Co., 32 L. J. Q. B. 279. (d) Morford v. Woodworth, 7 Ind. 83 ; Shearman, s. 601. (c) Frink v. Coe, 4 Greene (Iowa) 555. (/) Yates V. Whyte, 4 Bing. N. C. 272 ; Bradbume v. G. W. Ry. Co., 44 L. J. Ex. 9. The insurer is entitled to his share of the damages recovered, Ran- dall V. Cockran, 1 Ves. Sen. 97 ; Mason v. Sainshnry, 3 Doug. 64 ; Clark v. Blything, 2 B. & C. 254. The benefit of an insurance to survivors may be set up under Lord Campbell's Act, see Ch. VII., p. 251. (g) Wright v. London General Omnibus Co., 46 L. J. Q. B. 493. (h) Addison on Torts, 5th ed. p. 102. (1797) 174 DAMAGES. If a chattel be lost or destroyed through the negligence of the defendant the measure of the damages is the value of the chattel, but if the chattel be only injured then the depreciation in its value is the true measure, with an extra allowance for the loss of the use of the chattel while it is being repaired or replaced. Thus in an action for injury to a horse the proper measure of damages is the keep of the horse, the farrier's bill, and the loss in the value of the horse (i), with some reasonable sum for any pecu- niary loss of the use of the horse while under treatment (j), or for hiring another horse to do his duty (fc). We have seen ante, pp. 1, 16, that a man is not responsible for [*260] all the consequences which follow upon his negligent *act, but only for those which might be reasonably expected to follow by a prudent man (Z). So where a man on a coach, in a perilous posi- tion in consequence of a negligent act of the proprietor, jumped off and broke his leg, the coach proprietor was held liable (m). But where the plaintiff tried to shut a railway carriage-door when the train was in motion, it was held that the company were not liable for the consequences (n), and in general damages are not re- coveraljle where they are too remote (o). But all damages which under ordinary circumstances might be expected to result are re- coverable (p). Where the negligence arises in the performance of a contract, the damages must be such as can reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it (q). So where the defendant was a collector of telegrams, and received one in cypher which was unintelligible to him from the plaintiffs, and he negligently omitted to send it, and so caused great loss to the plaintiffs, it was held that they could only recover nominal dama- ges, because the defendant could nr)t have contemplated any loss as he did not know what the telegram was about (r) ; and where rags were sent by railway in a damp condition without any notice to the company of the fact, and it was proved that if delivered in their ordinary dry condition no harm would have happened, it was held that the company were not liable as the damage waa not a ~{f) Hughes V. Quentin, Wc.~& K^OSl (/ ) AVatson v. Lisbon Bridge Co., 14 Maine, 201 : Gillett v. "Western Ey, Co. 8 Allen, 560. (k) Johnson v. Holyoke, 105 Mass. 80. (l) Greenland v. Chaplin, 5 Exch. 248 ; Cox v. Burbidge, 13 C. B. N. S. 430; 32 L. J. C. P. 89. (m) Jones v. Boyce, 1 Stark. 493. (n) Adams v. Lancashire & Yorkshire Ey. Co., L. R. 4 C. P. 739. (o) See Ch. I., ante, pp. 15. 16. ip) Eigby V. Hewitt, 5 Exch. 240 ; Workman v. G. N. Ry. Co., 32 L. J. Q. B. 79 ; Greenland v. Chaplin, 5 Exch. 243. (q) Hadley v. Baxendale, 23 L. ,T. Ex. 179 ; see the recent case of Phillips v. h. & S. W. Ry. Co. (injuries to railway passenger), 49 L. J. C. A. 233'; L. E. 5 Q. B. D. 78. (r) Sanders v. Stuart, 45 L. J. C. P. 682. (1798) DAMAGES. 175 *natTiral consequence of the delay in contemplation of the [*261] parties at the time of making the contract (s). With respect to damages for personal injuries, the measure is loss of time, expense incurred, pain and suflPering («), and permanent injury causing pecuniary loss, as to which,it is said,that the amount awarded must not be an equivalent for the loss but some reasonable sum (u). It is said ihat where it is impossible to estimate accurately the amount of damage done the defendant must sufPer (v). If some damage must have happened to the plaintiff, irrespective of the defendant's act, that must be deducted from the whole amount of damage done, for the defendant is only liable for the conse- quences of his own act (x). The defendant cannot, as we have seen, escape liability by show- ing that the same damage would have happened without his act, if it is, in fact, his act which had done the damage; but if he can show that some of the damage which has happened was not done by him but entirely by something or somebody else beyond his con- trol, the damage may be apportioned (y) — that is to say, that the defendant is only liable for the consequences of his own acts. In Smith v. Dobson (z) the plaintiff's barge, too heavily laflen, was flooded first by a steamer called the Eamona, and then by the de- fendant's, the Water Lily. The whole damage caused by the two was £80. The jury found a verdict for £20, reducing the amount steamers partly because of the plaintiff's negligence, and partly because of *the Eamona's negligence. The Court upheld the verdict [*262] on application by the defendants to set it aside, and said the jury might be justified in reducing the damages. It does not appear what would have been the view of the Court if the plaintiff had moved for a new trial in order to increase the damages. It is pointed out in a note that the loss would not have happened from the swell caused by the Ramona alone, and, therefore, that vessel was not liable at all; and that the jury having found that the Water Lily was only liable for part of the damage, as the swell of the Eamono had helped to swamp the barge, the result was that the plain- tiff could not recover an adequate indemnity for his loss. In the course of the argument in Thorogood v. Bryan (a), Cresswell, J., asked if two omnibuses were racing, and one of them ran over a man who was crossing a road, would he not have a remedy against (s) Baldwin v. L. C. & D. Ey. Co., 9 Q. B. D. 582. (t) Blake v. Midland Ry. Co., 18 Q. B. 93, at p. Ill, but this does not apply to cases under Lord Campbell's Act. See the case, supra. For damages under that Act, see Ch. VII. (u) Armsworth v. S. E. Ry. Co., 11 Jur. 758 ; see Phillips v. L. & S. W. Ry. Co., mpra. (v) Leeds v. Amherst, 20 Beav. 239. \x) Workman )^. Great Northern Ry. Co., 32 L. J. Q. B. 279 ; see ante, p. 260. \y) Nitro-Phosphate Co. v. London and St. Katharine Docks, L. E. 9 Ch. D. 503 ; see also Smith v. Dobson, 3 M. & G. 59 ; Raisin v. MitchaU, 9 C. & P. 613. (z) Supra. \a) Thorogood v. Bryan, 8 C. B. 121. (1799) 176 DAMAGES. either f It seems that the answer to that quGslion might depend upon the circumstances. If the man would have escaped one omni- bus and been uninjured, but the other omnibus ran over him as he was escaping from the first, then, I think, it is clear that either should be liable for the whole damage; for if the first had not made the man run the other would not have knocked him down, and if the other had not been racing the man would have escaped. But, I think, if the first omnibus ran over the man, and the only way in which the act of the second contributed to the accident was by encourag- ing the other to race, it might be contended that this is too remotely connected with the injury. But, upon the other hand, if two per- sons agree together to do an act, the natural consequence of which may be to injure others, each would appear upon principal to be responsible for the acts of the other, which are done in carrying out the common design. Of course, if two men agree to commit a tort [*263] intentionally, *as if two omnibus drivers agree to run over a particular man, that would be a conspiracy, but being an inten- tional act would not be negligence (6). Upon the principle that the defendant is only liable for the dam- ages caused by his own acts, and not for those which are separable from them as being caused by the plaintiff or a third party, the de- fendant is not liable for subsequent damage which is caused by the plaintiff neglecting to avoid, as far as a reasonable man should do, the effects of the defendant's negligence (c). The plaintiff may recover in America, at all events, for damages caused by the defendant's negligence before the plaintiff by his own negligence increased the damage (d). Where the injury done to the plaintiff has necessitated expenses, and the plaintiff has become liable to some third party, he may re- cover damages to cover his liability (e). Formerly money paid to a physician was not recoverable, there being only a moral obligation to pay (/) ; but now, under the 21 & 22 Vict. c. 90, s. 31, registered physicians may recover their fees un- less the college has passed a bye-law to prevent them (g). The plaintiff is entitled to such prospective damages as will to a reasonable certainty arise (h), and the same has been held in respect of injury to real property (i). (6) Definition, ante, p. 1. \ (c) See Baldwin v. U. S. Tel. Co., 45 N. Y. 744, and the other cases cited in Shearman, s. 598, note (2). (d) Stebbins v. Central Vermont Ey. Co. 41 Amer. Eep. 855 (fire made by defendant, not put out by plaintiff. The facts of this case are not stated). ~ (e) Eandall v. Eaper, 27 L. J. Q. B. 266; E. B. & E. 84; Spark v. Heslop, 28 L. J. Q. B. 197; Mason v. Barker, 1 C. & K. 100. (/) Dixon V. Bell, Starkie, 287. [g) Gibbon v. Budd, 32 L. J. Ex. 182. (h) Eichardson v. Mellish, 2 Bing. 240; Ingram v. Lawson, 8 Sc. 471; Fetter V. Beal, 1 Lord Eaym. 339; Goslin v. Corry, 8 Sc. N. E. 21; Gregory v. Wil- liams, 1 C. & K. 568. (i) Lamb v. Walker, L. E. 3 Q. B. D. 389; Backhouse v. Bonomi, 9 H. L. C. 503. (1800) DAMAGES. 177 Where a plaintiff is disabled for life the measure of *dam- [*264"| ages is not to be taken from the amount of an annuity which would replace the annual salary of the deceased, for it does not follow that he would have retained his situation for the whole of his life; but a reasonable sum must be given (k). In the case of a railway accident, it was held that there was a contract to carry a man's wife safely, and that she being injured, and her husband sustaining by such breach of contract some pecu- niary damage, his right of action survived to his executrix, who was the wife, and she could recover therefore for his loss by the injuries which she had sustained (Z). In cases of injuries to property, the measure of damages is the cost of reinstating the property, if the plaintiff as a reasonable man would have reinstated the property; but if not, then the deprecia tion in the value is the true measure (m). For damages in carriers' cases, see Chapter III. s. 9, p. 175, "Carriers" ; and for damages under Lord Campbell's Act, see Chapter VII. p. 251, "Lord Campbell's Act;" and in shipping cases see Chapter III. s. 16, p. 211. Joint tortfeasors may in general be sued jointly or separately (w), so if the CO -proprietors of a coach intrust the driving to one of their number all will be responsible for his negligence (o); and if two omnibuses are racing, and one of them runs over a man, he may recover against either proprietor (p). *So if several persons are jointly bound to perform a duty,[*265] they are jointly and severally liable for omitting to perform it, or for performing it negligently (q). In trespass each tortfeasor is liable for the whole of the dam- ages (r), and there can be no contribution; for if a plaintiff re- covers judgment against two tortfeasors, and levies the whole dam- ages upon one of them, he has no claim for a moiety from the other (s). So also in negligence, if two persons are engaged in doing a negligent act they may be sued jointly, and they are jointly and separately liable for the whole of the damages (t). (i) Rapson r. Cubitt, Car. & M. 64. (?) Potter V. Metropolitan Ry. Co., .32 L. T. N. S. 36 (Ex. Ch.). (m) Shearman, s. 602; citing McGuirei). Grant, 1 Dutch. 356; Lukin v. God- sail, Peake's Add. 15; Housee v. Hammond, 39 Barb. 89; Terry v. New York, 8 Bosw. 404; Whitbeck v. N. Y. Central Ry. Co., 36 Barb. 644. (i,.) Addison on Torts, 5th ed., by L. W. Cave, Q. C. (o) Moreton v. Hardern, 4 B. & C. 223; but as to contribution, see Pearson V. Skelton, infra. (p) Thorogood v. Bryan, 8 C. B. 121, per Cresswell, J., during argument, supra, p. 262. iq) Ferguson v. Earl of Kinnoul, 9 CI. & F. 251. M Hume V. Oldacre, 1 Stark. 352. (s) Merreweather v. Nixan, 8 T. R. 186. (t) Gray v. PuUen, 5 B. & S. 970; Steel v. Lester, L. R. 3 C. P. D. 121; 47 L. J. C. P 43. 12 LAW OF NEG. (1801) 178 DAMAGES It should be observed that the rule that one tortfeasor cannot re- cover contribution against another only applies where such tort- feasor knew that he was doing something illegal (u). So where a coach was driven negligently by the servant of the proprietors, and a person whose horse was injured brought an ac- tion against one proprietor and recovered, and that proprietor brought an action against one of his co-proprietors, it was held that the first proprietor was only a tortfeasor by inference of law, and therefore could have recovered (x). So also the rule does not apply where one person has employed another to do an act not unlawful in itself, and has indemnified him (y). (u) Merreweather v. Nixan, sup.; Adamson v. Jervis, 4 Bilig. 72; Betts «. Gibbons, 2 A. & E. 57. (x) Pearson v. Skelton, 1 M. & W. 504. There was a non-suit, because be- ing a partnership matter the remedy waa in equity. (y) Merreweather v. Nixan, sup. (1802) (179) APPENDIX A. [See [*] p. 8.] [*267] JUDGMENT of Brett, M. R. in Heaven v. Pender. r Beett, M. E. : In this case the plaintiff was a workman in the employ of Gray, a ship-painter. Gray entered into a contract with a shipowner, whose ship was in tiie defendant's dock, to paint the outside of the ship. The de- fendant, the dock-owner, supplied, under a contract with the shipowner, an ordinary stage, to be slung in the ordinary way outside the ship for the purpose of painting her. It must have been known to the defendant's servants, if they had considered the matter at all, that the stage would be put to immediate use, that it would not be used by the shipowner, but it would be used by such a person as the plaintiff, a working ship-painter. The ropes by which the stage was slung, and which were supplied as part of the instrument by the defendant, had been scorched, and were unfit for use, and were supplied without a reason- ably careful attention to their condition. When the plaintiff began to use the stage, the ropes broke, the stage fell, and the plaintiff was injured. The Divi- sional Court held that the plaintiff could not recover against the defendant. The plaintiff appealed. The action is in form and substance an action for negli- gence. That the stage was, through want of attention of the defendant's ser- vants, supplied in a state unsafe for use is not denied. But want of attention, amounting to a want of ordinary care, is not a good cause of action, although injury ensue from such want, unless the person charged with such want of or- dinary care had a duty to the person complaining to use ordinary care in respect of the matter called in question. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the *duty of observing ordinary care and skill, by which neglect [*268] the plaintiff, without contributory negligence on his part, has suffered injury to his person or property. The question in this case is whether the defendant owed such a duty to the plaintiff. If a peison contracts with another to use ordinary care or skill towards him or his property, the obligation need not be considered in the light of a duty , it is an obligation of contract. It is undoubted, however, that there may be the obligation of such a duty from one person to another, although there is no con- tract between them with regard to such duty. Two drivers meeting have no contract with each other, but under certain circumstrances they have a recipro- cal duty towards each other. So two ships navigating the sea. So a railway company which has contracted with one person to carry another has no contract with the person carried, but has a duty towards that person. So the owner or occupier of a house or land who permits a person or pei^ sons to come to his house or land has no contract with such person or per- sons, but has a duty towards him or them. It should be observed that the existence of a contract between two persons does not prevent the existence of the suggested duty between them also being raised by law, independently of the contract, by the facts with regard to which the contract is made, and to which it applies an exactly similar but a contract duly. We have not in this case to consider the circumstances in which an implied contract may arise to (1803) 180 APPENDIX A. use ordinary care and skill to avoid danger to the safety of person or property. ' "We liave not in this ease to consider the question of a fraudulent misrepresen- tation express or implied, which is a well-reoognized head of law. The questions which we have to solve in this case are, what is the proper definition of the relation of two persons, other than the relation established by contract or fraud, which imposes on the one of them a duty toward the other to observe, with regard to the person or property of such other, such ordinary care or skill as may be necessary to prevent injury to his person or property ; and whether the present case falls within such definition. "When two drivers or two ships are approaching each other, such a relation arises between them when they are approaching each other in such a manner that unless they use ordinary care and skill to avoid it, there will be danger of an injurious collision between them. This relation is established in such circumstances between them, not only if it be proved that they actually know and think of this danger, but whether such proof be made or not. It is established, as it seems to me, because any one [*269] of *ordinary sense who did think would at once recognize that if he did not use ordinary care and skill under such circumstances there would be such danger. And everyone ought, by the universally-recognized rules of right and wrong, to think so much with regard to the safety of others who may be jeopardized by his conduct ; and if, being in such circumstances, he does not think, and in consequence neglects, or if he neglects to use ordinary care and skill, and injury ensue, the law, which takes cognizance of and enforces the rules of right and wrong, will force him to give an indemnity for the injury. In the case of a railway company carrying a passenger with whom it has not entered into the contract of carriage, the law implies the duty, because it must be obvious that unless ordinary care and .skill be used the personal safety of the passenger must be endangered.. "With regard tj the condition in which an owner or occupier leaves his house or property, other phraseology has been used which it is neces- sary to consider. If a man opens his shop or warehouse to customers it is said that he invites them to enter, and that this invitation raises the relation between them which imposes on the invftei the duty of using reasonable care so to keep house or warehause that it may not endanger the person or property of the person invited. This is, in a sense, an accurate phrase, and, as applied to the circum- stances, a sufficiently accurate phrase. Yet it is not accurate if the word "invi- tation " be used in its ordinary sense. By opening a shop you do not really invite — you do not ask A. B. to come in to buy ; you intimate to him that if it pleases him to come in he will find things which you are willing to sell. So in the case of shop, warehouse, road, or premises, the phrase has been used that if you permit a person to enter them you impose on yourself a duty not to lay a trap for him. This, again, is, in a sense, a true statement of the duty arising from the relation constituted by the permission to enter. It is not a statement of what causes the relation which raises the duty. "What causes the relation is the permission to enter and the entry. But it is not a strictly accurate' state- ment of the duty. To lay a trap means in language to do something with an intention. Yet it is clear that the duty extends to a danger the result of neg- ligence without intention. And with regard to both these phrases, though each covers the circumstances to which it is particularly applied, yet it does not cover the other set of circumstances from which an exactly similar legal liability is inferred. It follows, as it seems to me, that there must be some larger prop- osition which involves and covers both sets of circumstances. The logic of [*270] inductive reasoning requires that where *two major propositions lead to exactly similar minor premises there must be a more remote and larger premise which embraces both of the major propositions. That, in the present consideration, is, as it seems to me, the same proposition which will cover the similar legal liability inferred in the cases of collision and carriage. The prop- osition which these recognized cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did (1804) HEAVEN V. PENDEK. 181 think would at once recognize that, if he did not use ordinary care and skill in his owa conduct ^^■ith regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. Without displacing the other propositions to which allusion has been made, as applicable to the particular circumstances in respect of which they have been enunciated, this proposition includes, I think, all the recognized cases of lia- bility. It is the only proposition which covers them all. It may, therefore, safely be affirmed to be a true proposition, unless some obvious case can be stated in which the liability must be admitted to exist, and which yet is not within this proposition. There is no such case. Let us apply this proposition to the case of one person supplying goods or, machinery, or instruments or uten- sils, or the like, for the purpose of their being used by anotherperson, but with whom there is no contract as to the supply. The proposition will stand thus : whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person,«under such circumstances that every one of ordinary sense would, if he thought, recognize at once that, unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of suppljring it, there will be danger of irgury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of suiDplying such thing. And ftr a neglect of such ordinary care or skill whereby injury happens, a legal liability arises to be enforced by an action for negligence. This includes the case of goods, &c., supplied to be used immediately by a particular person or persons, or one of a class ot persons; where it would be obvious to the person supplying, if he thought, that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the things supplied would be of such a nature that a neglect of ordinary care or skill as to its condition or the *manner [*271] of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used, or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property. The cases of vendor and purchaser and lender and hirer under contract need not be considered, as the liability arLses under contract, and not merely as duty imposed by law, though it may not be useless to observe that it seems difficult t» import the implied obligation into the contract, except in cases in which, it there were no contract between the parties, the law would, according to the rule above stated, imply the duty. Examining the rule which has been above enunciated with the cases which have been decided with regard to goods supplied for the purpose of being used by persons with whom there is no contract, the first case to be considered is ine\'itably Langridge v. Levy (2 M. & W. 519; 4 M. & W. 337). It is not an easy case to act upon. It is not — it cannot be — accurately reported ; the de- claration is set out; the evidence is assumed to be reported ; the questions left to the jury are stated. And then it is said that a motion was made to enter a nonsuit in pursuance of leave reserved on particular grounds. Those grounds do not raise the question of fraud at all, but only the remoteness. And although the question of fraud seems in a sense to have been left to the jury, yet no question was, according to the report, left to them as to whether the plaintiff acted on the faith of the fraudulent misrepresentation, which is, nevertheless, a necessary question in a case of fraudulent misrepresentation. The report of the argument makes the object of the argument depend entirely upon an assumed motion to arrest the judgment, which raises always a discussion depending en- tirely on the form of the declaration, and the effect on it of a verdict, in respect of which it is assumed that all questions were left to the jury. If this was the (1805) 182 APPENDIX A. point taken, the report of the evidence and of the questions left to the jnry is idle. The case was decided on the ground of a fraudulent misrepresentation as stated in the declaration. It is inferred that the defendant intended the representation to be communicated to his son. Why he should have such an intention, in fact, seems difficult to understand. His immediate object [*272] must have been to induce the father to buy and *pay tor the gun. It must have been wholly indifferent to him whether, after the sale and pay- ment, the gun would be used or not by the son. I cannot hesitate to say that, in my opinion, the case is a wholly unsatisfactory case to act on as an authority. But taking the case to be decided on the ground of a fraudulent misrepresentation made hypothetical ly to the son, and acted upon by him, such a decision upon such a ground in no way negatives the proposition that the action might have been supported on the ground of negligence without fraud. It seems to be a case which is mthin the proposition enunciated in this j udgment, and in which the action might have been supported without proof of actual fraud. And this seems to be the meaning of Cleasby, B. , in the observations he made on Langridge v. Levy (2 M. & W. 519; 4 M. & W. 337) in the case of George v. Skivington (Law Eep. 5 Ex. 1, 5). In that case the proposition laid down in this judgment is clearly adopted. The ground of the decision is that the article was, to the knowledge of the defendant, supplied for the use of the wife, and for her immediate use. And certainly, if he, or anyone in his position, had thought at all, it must have been obvious that a want of ordinary care or skill in pre- paring the prescription sold would endanger the personal safety of his wife. In Corby v. Hill (4 C. B. (N. S.) 556; 27 L. J. C. P. (N. S.) 318) it is stated by the Lord Chief Justice that an allurement was held out to the plaintiff. And Willes, J., stated that the defendant had no right to set a trap for the plaintiff. But in the form of declaration suggested by Willes, J., on p. 567, there is no mention of allurement, or invitation, or trap. The facte suggested in that form are, "that the plaintiff had license to go on the road; that he was in consequence accustomed and likely to pass along it; that the defendant knew of that custom and probability; that the defendant negligently placed slates in such a manner as to be likely to prove dangerous to persons driving along the road; that the plaintiff drove along the road, being, by reason of the license, lawfully on the road; and that he was injured by the obstruction." It is im- possible to state a case more exactly within the proposition laid down in this judgment. In Smith v. London and St. Katharine Docks Co. (Law Eep. 3 C. P. 326) the phrase is again used of invitation to the plaintiff by the defendants. Again, let it be observed that there is no objection to the phrase as applied to the case. But the real value of the phrase may not improperly be said to be, that invitation imports knowledge by the defendant of the probable use by the plaintiff of the article .supplied, and therefore carries with it the relation be- [*273] tween the parties which establishes the duty. *In Indermaur v. Dames (Law Eep. 1 C. P. 274: Law Eep. 2 C. P. 311) reliance is again placed upon a supposed invitation of the plaintiff by the defendant. But, again, it is hardly possible to state facts which bring a case more completely within the definition of the present judgment. In Winterbottom v. Wright (10 M. & W. 109) it was held that there was no duty cast upon the defendant with regard to the plain- tiff. The case was decided on what was equivalent to a general demurrer to the declaration. And the declaration does not seem to show that the defendant, if he had thought about it, must have known, or ought to have known, that the coach would be necessarily or probably driven by the plaintiff, or by any class of which he could be said to be one, or that it would be so driven within any time which would make it probable that the defect would not be observed. The declaration relied too much on contracts entered into with other persons than the plaintiff. The facte alleged did not bring the case within the proposi- tion herein enunciated. It was an attempt to establish a duty towards all the world. The case was decided on the ground of remoteness. And it is as to too great a remoteness that the observation of Lord Abinger is pointed when he (1806) HEAVEN V. PENDEK. 183 says that the doctrine of Langridge v. Levy (2 M. & "W. 519; 4 M. & "W. 337) is not to be extended. In Francis v. Cockrell (Law Rep. 5 Q. B. 184, and p. 501) the decision is put by some of the judges on an implied contract between the plaintiff and the de- fendant. But Cleasby, B. (p. 515), puts it upon the duty raised by the knowl- edge of the defendant that the stand was to be used immediately by persons of whom the plaintiff was one. In other words, he acts upon the rule above laid down. In CoUis II. Selden (Law Rep. 3 C. P. 495) it was held that the declaration disclosed no duty. And, obviously, the declaration was too uncertain. There is nothing to show that the defendant knew more of the probability of the plaintiff rather than any other of the public being near the chandelier. There was nothing to show that the plaintiff was more likely to be in the public- house than any other member of the public. There was nothing to show how soon after the hanging of the chandelier anyone might be expected or permitted to enter the room in which it was. The facts stated do not bring it within the rule. There is an American case — Thomas and Wife (6 N. Y. 397 — cited in Mr. Horace Smith's Treatise on the Law of Negligence (p. 88, n. (b) ), which goes a very long way. I doubt whether it does not go too far. In Longmeid v. HoUiday (6 Ex. 761; 20 Law J. (Ex.) 430) a lamp was sold to the plaintiff to be used by the wife. The *jury were not satisfied [*274] that the defendant knew of the defect in the lamp. If he did, there was fraud ; if he did not, there seems to have been no evidence of negligence. If there was fraud, the case was more than within the rule; if there was no fraud, the case was not brought by other circumstances within the rule. In Gautret v. Egerton (Law Rep. 2 C. P. 371, at p. 374) the declaration was held by Willes, J., to be bad on demurrer, because it did not show that the defendant had any reason to suppose that persons going to the blocks would not have ample means of seeing the holes and cuttings relied on. He does not say that there must be fraud in order to support the action. He sajstlteremust he something like fratid. He says: — "Everyman is bound not wilfully to de- ceive others." And then, in the alternative, he says: " Or to do any act which may place them.m danger.''^ There seems to be no case in conflict with the rule above deduced from well- admitted cases. I am, therefore, of opinion that it is a good, safe, and just rule. I cannot conceive that*if the facts were proved which would make out the proposition I have enunciated, the law can be that there would be no liability. Unless that be true the proposition must be true. If it be the rule the present case is clearly within it. This case is also, I agree, withjn that which seems to me to be a minor proposition — namely, the proposition which has been often acted upon — ^that there was, in a sense, an invitation of the plaintiff by the defendant to use the stage. This appeal must, in my opinion, be allowed, and judgment must be entered for the plaintiff. (1807) 184 APPENDIX B. [*275] *APPENDIX B. [See [*] p. 236.] [Shortly after the puhlication of the fii'st edition of this hook, Lord Bramwell was kind enough to send to the author the following manuscript observations, and to permit him to make what use he pleased of them. Every observation of the learned lord is most valuable and interesting ; and the author is very glad to be able to add to the usefulness of his book by inserting the foUovring powerful criticism of the case of Clayards v. Dethick.] " It is said that Clayards v. Dethick (12 Q. B. 439) is an authority in favour of the plaintiff. What principal thatcaSe aflEirmed I cannot tell. If the mar- ginal note is a correct representalfion of it, I dissent. It says : 'In an action for damage occasioned by the defendant's negligence, a material question is whether or not the plaintiff might have escaped the damage with ordinary care. ' Certainly, for if he could, it would nol^have been occasioned by the defendant's negligence. ' But the defendant is not excused merely because the plaintiff knew that some danger existed through the defendant's neglect, and voluntarily Incurred such danger.' In my opinion that is wrong. If it is understood as meaning that a man, knowing there is some danger, but reasonably believing that it is of smaller amount than it really is, voluntarily incurs it, it may be right. But to say that a man knowing of a danger and its amount voluntarily incurring it and receiving damage can maintain an action for that damage against the person who created the danger is contrary to all principle. The sufferer is a volunteer ; he brings the mischief on himself voluntarily. I vrill now proceed respectfully to examine what the judges said in that case. Lord Denman is reported to have left to the jury whether the defendants had been guilty of culpable negligence. [*276] *"What 'culpable' means there I know not, nor why 'negligence.' For what was done was done wilfully. But I assume the meaning is whether fencing the trench was a reasonable precaution which the defendant should have taken, or to that effect. He then says ' that if the plaintiff had incurred evidently great danger, that was a rashness which would excuse the defendant, but it could not be his duty to refrain from coming out because the defendant had made the passage in some degree dangerous. ' Now, vrith all submission, what is the meaning of this ' duty ' ? Duty to whom ? He could have or owe such a duty to no one, not even if there was ' evidently great danger. ' Except, indeed, someone had been at work at the trench whose safety would have been endan- gered by his (the plaintiff's) passing. Then he adds ' that the defendants were not entitled to keep the occupiers in a state of siege ' (meaning, I suppose, 'be- sieged'). No ; and, if they did so unlawfully, they subjected themselves to an action. But it is a very different thing to say that a person might voluntarily run a risk to get out of the state of siege, and then maintain an action, not for the damage occasioned by the state of siege, but by his ovni act, because he did not like that state. * "And his lordship goes on to say, 'though if the plaintiff had persisted in running upon a great and obvious danger his action could not be maintained.' By implication he says that it could if the danger was small, so that the less mischievous the defendant's conduct, the more would he be liable. In my judgment, with all respect, this can only be right if the word ' obvious ' is taken to show, that if the danger was not obvious — was greater than appeared — then the defendant might be liable. His lordship is reported to have said dur- ing the argument, ' I thought the plaintiff might be justified in incurring a moderate danger.' 'Justified ' ! Yes, to himself, to use a common expression (1808) ' NEGLIGENCE. 185 to an employer, if he had one, and in the eyes of prudent persons ; hut how does that entitle him to recover for a damage he has caused to himself? Mr. Justice Patteson asked : ' Suppose the horse had been coming home, must he have been kept out of the stable until the entrance was safe ? ' I say yes. It is admitted he must have been if there is ' evidently great danger. ' Why not, if there was any? His lordship says 'that the question arises on the declara- tion, because it is there said that the defendants made the trench and laid the rubbish, and that by means of the premises the plaintiff's horse was killed , ' and after showing that the defendant had acted unlawfully, he says, ' Whether the plaintilf contributed to the mischief that happened by want of ordinary caution is a question of degree. If the danger was so great that no sensible man *would have incurred it, the verdict must be for the defendants. ' [*277] But no danger ever was so great that no sensible man would incur it. Men lead forlorn hopes sensibly and reasonably. And no danger ever was so small but what a sensible man might refuse to incur it, e. g., when there is nothing to get by so doing. It may be said that the learned judge must be understood to mean sensible with reference to the gain iu view. Which would come to this, that if the horse was an old screw and there was a &\ fare to be earned, the sensible man might do it ; but if the horse was valuable and only Is. fare to be earned, the sensible man would not. So that he would not recover if the horse was valuable, and would if he was not. I hope I shall not be suspected of wanting in respect for Mr. Justice Patteson, which it would grieve me to fail in for that well-remembered and venerated judge, but it is necessary to criti- cise his reasoning to see if he has made out the proposition that ' by means of the premises' — viz., what the defendant did — the horse was killed. I think not, unless, as I have before said, it is taken that the danger was not obvious ; and his lordship himself says at the end of his judgment, ' The question was whether the danger was so obvious that the plaintiff could not with common prudence make the attempt.' Mr. Justice Coleridge says, in like way, that ' the question is whether the injury to the plaintiff may legally be deemed the consequence of it' — i. e., defendant's wrongful act — and puts forth the same fallacious reasoning, unless understood with reference to the danger being obvious — viz. , 'whether the plaintiff acted as a man of ordinary prudence, and that the plaintiff was not bound to abstain from pursuing his livelihood because there was some danger.' I repeat, to whom could he be bound? Mr. Justice Wightman also says, 'The words "by means of the premises " raise the whole question. ' And he seems to put the case on whether the plaintiff knew of the danger — whether it was ' obvious ' to him. For, he says, the state of things had been altered since the plaintiff had passed in safety, and there was a con- tradiction as to whether he had been warned of this, and he adds, ' If it had appeared that the plaintiff, in defiance of warning, would persevere in the at- tempt to pass, I cannot suppose that the jury would have found a verdict in his favour.' It seems to me, therefore, that the judgment is founded on the plaintiff not knovdng of the danger. And perhaps if he did not, he would be entitled to recover. In the case we have to decide, the plaintiff did know of it. Lord Denman in his judgment repeats what I cannot help thinking is wrong, unless understood in a particular way. He says, ' I told the jury that the plaintiff was not bound to keep his horse back unless the danger was im- minent.' *"Clayards v. Dethick, however, may have been rightly decided, [*278] though there are some questionable dicta in it. And it is said that it has been recognised and adopted in Thompson v. N. E. Co. (2 B. & S. 106). So it has, but only on the ground on which I say it can be supported — viz., that the dan- ger was not known to the sufferer or his agent. The Chief Justice says it is no answer to the claim, ' unless the circumstances were such that the attempt to navigate the ship under them was an act which no man of ordinary prudence would have committed.' 'And,' he says, 'for the defendantsto raisethat issue would have been inconsistent with their case, that there was no negligence on their part.' Hill, J., says, 'There was nothing in the evidence to show that the pilot had such knowledge as would have prevented a man of ordinary pru- (1809) / 186 APPENDIX B. dence from attempting to take the vessel out of the docks. The pilot had knowledge of the fact of the obstruction, hut he had not knowledge that it made the navigation so highly dangerous as to render it inconsistent with com- mon prudence to make the attempt ' — that is, the pilot knew something, hut not all. I agree with that. In the case before us the plaintiff knew all. Mr. Justice Blackburn also says, ' It might have been a question whether the pilot, with the knowledge he possessed, was guilty of such want of reasonable care in attempting to take the ship out, as that no prudent man would have so acted. ' But he says it was not raised by the defendants. That is the ground on which the judgment was affirmed. " I need not say I entirely agree in that case and in its reasoning. It is true that the Chief Justice and Blackburn, J., cite Clayards v. Dethick with ap- proval, but the reasoning they use is not that of that case. I cannot agree, then, that these cases are authorities for the plaintiff; on the contrary, they are against him. He knew the whole of the facts and the amount of risk he ran, and I do not say he did not act as a prudent man. It may have been, and probably was, worth his while to risk killing a cow in order to get the benefit of the market. "Whatever may he the effect of these cases, I think Wyatt v. Great Western (6 B. & S. 709), in which they were cited and commented on, is in point against the plaintiff: There the defendants' railway crossed a highway on a level, and they should have had a person to attend to the gates required by law to he put there. In this they failed. The plaintiff undertook to open them for himself and was injured, and it was held he could not recover. It is plain to me that the judges who decided for the defendants did so on the ground that, though there was a breach of duty in the defendants which gave the means of the [*279] plaintiff" getting injured, it did*not cause the injury — that the plaintiff was a volunteer and caused his own injury. Mr. Justice Blackburn, indeed, differed, and differed on the authority and reasoning of Clayards v. Dethick, with which reasoning I cannot agree, for the reasons I have given. In that case (Wyatt v. Great Western) it might equally have been contended that the plaintiff acted as a man of ordinary prudence. But Mr. Justice Crompton says. Where any damage, &c., even none beyond delay, has arisen from a railway company not performing their duty an action lies. But the plaintiff had no right to take on himself the duty of opening and shutting these gates. ' ' It appears to me the damage done here does not flow from the act of the defend- ants, but from the act of the plaintiff. ' These cases are in a dilemma. Either there is danger or there is not. In the latter case the fault must be with the sufferer. In the former case there is another dilemma, either the danger is ob- vious or it is not. In the latter case the sufferer may well complain, in the former he is a volunteer and has no right to complain." Lord Justice Bramwell's proposition is that a man who knows of a danger and knows its amount and voluntarily incurs it cannot recover against the per- son who created the danger. I think this is true if the word voluntarily is taken in its full and literal sense. But I think if the person creating the dan- ger has placed the plaintiff iu a dilemma, so that he must either run a risk or lose his just rights or advantages, such person cannot be heard to say that the plaintiff is a volunteer. His lordship says, granted that the defendant had created a state of siege, the plaintiff ought to have stopped in the stables and brought an action for the damage occasioned by the state of siege, and not vol- untarily run a risk. Now, no doubt he had no right, because he was in a state of seige, wilfully to drive at the obstacle and smash his carriage, but I think he had a right to run some risk in enforcing his rights, and that the only test of what risk he may run is to say such risk as is reasonable under all the cir- cumstances. (1810) (187) INDEX. [The pasrfng refers to the [*) paeinir.l ACCIDENT, accident must be connected with defendant, 248 re< ipsa loquitur, 130, 245 — 250 mere fact ol accident no c\ idence of negligence, 250 culpa lemsaima amounts to casus, 12, note (cj ACT OF GOD, 18, 43, 156, 165 extraordinary rainfall, 16, note (i) ACTS of omission or commission [see Omission] ACTS OF PARLIAMENT [see Statutes] ACTION, penalty no bar to [see Penalty] ADMINISTRATIVE ACTS [see Public Officers] ADMIRALTY COURT [see Ships] AGENT. G6 [see Mastee and Servant, Directors] solicitor liable for negligence of, 199 AGGRAVATION of injury by plaintiff's negligence, 239, 258, 261, 263 [see Damages] AGREEMENTS [see Contract] ANIMAI^, 53 fencing out cattle, 48 railway companies, 50 persons having control to use ordinary care, 53 "savage" animals at peril, 53 scienter, 53 trespass, 53 small animals, eats, &c., 54 negligent control of ordinary animals, 54 natural habits of animals, 54 cattle in a street, 55 infectious animals, 55 dogs, 56, 138 attacking cattle, 56, 57 quasi savage or dangerous animals, 55, 136 bulls or horses in a street, 137, 138 runaway horse, 167 monkey, 138 fox, 138 ox, 138 APPORTIONMENT OF DAMAGES [see Damages, «hips] (1811) 188 INDEX. [The paging refers to the [•] pages.] ASSAULTS on guards of omnibuses or trains, 80, note (/) ATTORNEY [see Solicitor] AUTHORITY of agent, 66 of servant, 77 et seq. BAGGAGE [see Caeeieks] BAILEE, bailee for hire, 25 use of the thing bailed, 25 gratuitous loan, 121, 123 BAILMENT [see Bailee] BAILOR, gratuitous, 224 BANKERS to show more than ordinary care, 20.3 only ordinary for things deposited with them, 203 negligently refusing to cash cheque, 204 paying forged cheques, 204 contributory negligence, 204 discounting bills, 204 disclosing state of customer's account, 204 as gratuitous depositaries, 223 BARRISTER, solicitor taking opinion of, 202 not liable for negligence, 206, note (2^) BEASTS [see Animals] BENEFIT, where statutory duty Imposed, 9 test, for whose benefit act was done, 10 division of the Roman Law, 11 mutual, 11, 25 person invited upon premises, 36, 131, 132 plaintiff must show that statutory duty was for his benefit, 159 of charter to corporations, 148 invitation upon premises, for whose benefit, 131 man using property for his own, 122, 129 public benefit, 10, 121 BILL OF EXCHANGE, banker discounting, 204 BORROWER, loan for benefit of, 224 for benefit of lender, 121 BRIDGE, railings to bridges, 62 railway bridge to be kept in repair, 62 foot-bridge for crossing line [see Level Crossing] (1812) INDEX. 189 CThe paging refers to the [•] pages. ] BUILDINGS, right of support for, "), 26 BULLS [tn'c AxiMALs] BURDEN OF PROOF [.oir Evidence] CABDRIVERS AND PROPRIETORS, 53, 62, 66 CAMPBELL'S (LORD) ACT, no action for causing death at common law, 2j1 sta,tute, 251 decisions upon the statute, 253 — 257 CANALS, 63, 134 overfloTving into mine, 150, note (.<) CARE, degree of [.see Oedixaey Caeb, Moee than Oedixaey Caee, Less THAX OEDINAEY CARE] CARELESSNESS [see Negligence] CARRIAGE [see Railways, Caeeiee] CARRIAGE OF GOODS [see Caeeiee] CARRIER, common carriers, insurers, 126, 165 carriers of passengers, more than ordinary care, 127 stage coaches, 137 goods of peculiar character, negligence with respect to, 165 goods arrived at destination, 165 railway companies common carriers, 166 Carriers Act, 1830 . . 166—169 tender of reasonable sum for carriage, 169 liabilities varied by express contract, 170 Railway and Canal Traffic Act, 1854 . . 173, 174 reasonable conditions, 170 — 173 injury before special contract made, 174 not liable even for gross negligence if statute not complied with, 174 measure of damages, 175 liability of railway company for loss of goods beyond its own line, 170, 178 passengers' luggage, 176 amount regulated by private Act, 177 passenger cannot take luggage at his own ri.sk, 177 when passenger takes control carriers no longer insurers, 177 carrier's liability extends to receiving and delivering, 178 as warehousemen of luggage liable for ordinary negligence, 178 conditions of deposit, 179 must be present to passenger's mind, 179 carriers of passengers, 179 not insurers, 179 more than ordinary care, 180 tort or contract, 180 — 183 immaterial who paid the fare, 180, 183 servant taking ticket, 180, 181 passenger may agree to travel at his own risk, 183 running powers, 184, 185 (1813) 190 INDEX. [The paging refers to the [*] pages. 3 CARRIER — continued. use of premises, 185 negligence if something unusual happens, 185, 186 invitation upon premises, 187 to use a bridge, 187 to cross the line, 188 construction of works so as to resist storms, 188 coaches, invitation to enter, 189 latent defects, 189 use of trains and carriages, 189 not pulling up at platform, 189 test whether plaintiff misled or not, 190, 192 thumb cases, 191 platform to be reasonable length, 191 plaintiff shutting door when train in motion, 191, 192 not whistling, 192 CART WITH HORSE, 20 CASUS [see Accident] CATTLE [sec Animals] CAUSE (Proximate) [see Proximate Cause] CHARTERS OP CORPORATIONS, 64, 150 CHILD, on railway line, no gate, injury not too remote, 19 contributory negligence of, 242, 243 recovering under Lord Campbell's Act, 251 CLERKS [see Public Officers] solicitor liable for negligence of, 199 CLIENT [see Solicitor] COACHES, 128, 189, 246, note (d) [see Carrier] COAL MINES [see Mines] COLLABORATEUR [see Fellovs' Workman, Master and Servant] COLLISION, in ordinary life, 25, 28 in cases of ships [see Ships] mere fact of, evidence of negligence, 246, hote (d) COMBUSTIBLE MATERIALS [see Dangerous Things] COMMISSION [sec Omission] COMMISSIONERS, duties t« cleanse rivers, &c., 154, note (i) liable for not putting flap in mouth of sewer, 157 negligently-made sluices, plaintiff dammed them up, removed by third parties, 16, note [l) COMMODATUM [see Borrower] COMMON CARRIERS [see Carrier] (1814) INDEX. 191 [me pORlug refers to the [•] pages. ] COMPANY [aee Coepobations, Railways, Dieectoes] CONCEALED BANGER [see Teap] CONDITION, reasonable, 171 unreasonable, 172 CONTRACT, duties arising out of, 2, 7 breach of duty to third person not privy to, 7 coming on premises in pursuance ot, invitation, 133 railway passenger can sue in contract or tort, 180 et seq. CONTRACTOR, usual course of business to employ, 66 presumption employed to do work in a reasonable maimer, 67 owner interfering, liable, 67 who is a, 84, 86 employer of contractor not liable, 84 et seq. sub-contractor, 87 owner of land responsible, 88 no excuse for corporation that they employed, 149, 156 can be recovered against if negligent, 158 CONTRIBUTORY NEGLIGENCE, in cases against innkeepers, 194 in cases against bankers, 204 maxim non remoia causa sed proxima, 226 legal meaning of, 226 defendant could not avoid the .effect of it, 227 negligence of third parties, 228 two propositions for defendant to prove, 231 defendant doing an act, the consequences of which are beyond his control, 232 merely not anticipating the defendant's negligence, 234 presumption that defendant will act with ordinary care, 235 that plaintiff vrill do the same, 235 plaintiff voluntarily incurring danger, 235 et seq. negligently incurring danger, 235 et seq. doing illegal act, 235 choice of evils, 237 no evidence to go to jury, nonsuit, 237 question of fact for the jury, 237 plaintiff's act aggravating damages — American law, 239, 258, 261, 263 defendant liable for whole damage, 239 except where plaintiff's negligence is separable, 239 contributory negligence of servant undertaking risk, 239 crossing railway line without looking, 240 identification of plaintiff vrith person doing negligent act, 241 applied to children, 242 under Employers' Liability Act [see Employees' Liability Act] CONTROL, identification of passenger with driver, 241 of child with parent, &c., 242 of ainimals, 53, 136 defendant doing an act which puts affairs out of his control, 232 (1815) 192 INDEX. [The paging refers to the [•] pages. ] COKPOEATIONS, highway repairable by, 58, 59, 60 to pursue best possible plan with respect to highway, 60 to select competent persons, 60 liable for negligence of persons authorised by them, 61 bound to use more than ordinary care, 61, 62 not performing statutory duties, 64 duties voluntarily undertaken, 64 not answerable I'or want of administrative ordinances, 65 notice of injury, 65 ultra vires, 65 performing statutory duties, 148 bound to use best skill, 149 no excuse, employed contractor, 149, 156 must be a default in duty, 149, 154 can be guilty of a tort, 149, 150 imperative or discretionary duties, 150, 151, 152, 153 corporation keeping streets in repair, 151 keeping sewers open, 151 level crossings, 151 fencing footpath, 151 corporations taking toll, 155 not liable for inevitable injury, 155 liable, although no profit made, 155, 156 liable, if means of knowing of defect, 153 no excuse that servants ordered to do a thing, 156 or that contractor employed, 156 accident or vis major, 156 for whose acts corporation liable, 156, 157 not liable for mere error of judgment of person employed by them, 157 not liable for incidental negligence of contractor, 158 can recover against contractor, 158 plaintiff must show that statutory duty was for his benefit, 159 penalty does not bar action, 159 COSTS, action by solicitors for, 200 COUNSEL [see Eaeeistee] COURSE OF EMPLOYMENT, 77 [see Master and Sbevant] COURT AND JURY, province of, 22, 245, 246 COWS [seeANiMAi>;] CRASSA NEGLIGENTIA [see Negligence] CROSSING [see Lea'ei. Ceossing] CULPA, LEVIS, LATA (Roman law), 11, 13 CULPABLE ACTS, 1 DAMAGES, apportionment of, 21 for negligence in carriage of goods, 175 in carriage of passenger, whether tort or contract, 180 — 183 under Lord Campbell's Act, 251 — 257 in cases of tort, 253 (1816) INDEX. 193 pThe paging refera to the [•] pages.] BAMAGISS— continued. vindicative damages, 258 mitigation of, from conduct of plaintiff, 239, 258, 261, 263 master and servant, 258 recovery of insurance money not set off, 259 compensation by magisti-ate a good defence, 259 measure of, where chattel lost or destroyed, 259 defendant only responsible for what might reasonably happen, 259 for negligence in performance of contract, 260 for personal injuries, 261, 264 prospective damages, 263 for injuries to property, 264 in actions against owners of -ships, 211 DAMS, 44 DANGEROUS THINGS, liability to third party, however remote, upon sale of, 7, 20, 21 sparks from engines, 40, 41, 131 poisonous trees, 43 employment of contractor to do, 69 more than ordinary care, 75 property used so as to involve danger, 129 goods, guns, fireworks, 129 poisonous drugs, 139 explosive materials, 139, 140 dangerous instrument on highway, 140 penalty and action, 140 statutes relating to dangerous goods, 140, note (g) [see Gas, Machineey] DAEK, whether dark or light at the time of accident, 190, 191 DEATH [see Campbell's Act, 251 et sej.] DEDICATION, GRATUITOUS, road to public, 224 DEFECT, under Employers' Liability Act, 94 extent, 27, 189 DEFINITION OF NEGLIGENCE, 1 DEGREES OF CARE [see Obdinaey Ca^, Moeethan Oedinaey Caee, Less than Obdinaey Caee] DELIVERY, after delivery at destination carrier liable for negligence, 165 under s. 7 of Railway Act, 173 DEPOSIT, with bankers, 203 gratuitous, 224 of luggage, 178 [sccCaeeiee]! DILIGENCE [see Skill, Moee than Oedinaey Caee] DIRECTORS OF PUBLIC COMPANIES, 159 are agents and trustees of company, 159 liability to strangers, 159 13 LAW or NEG. (1817) 194 INDEX. [The paging refers to the [•] pages. ] DIRECTORS OF PUBLIC COMPA'NIES— continued. should show more than ordinary care, 160 how far liable for negligence, 160, 161 liability of company to liquidator, 161 liability for acts of co-directors, 161 — 164 shareholder suing them for damages, 164 misapplication of money by, 164 omission to register shares, 164, 165 liability of promoters, 165 DISCRETIONARY DUTIES, 64, 150—153 DOCKS, dock owners to use ordinary care, 52 more than ordinary care to ships or persons invited, 52, 134 statutory duties, more than ordinary care, 134 immaterial whether bound to repair, 135 whether deriving profit, 135 duties of harbour masters, 135 DOCTORS [see Physicians] DOG, 54, 56, 138 [see AlSTIMAL] DOLUS, importing intention, 12, note (e) DOOR, of railway carriage, 191, 192 DRAINS [see Sewees] DRAWBRIDGES, 62 DRIVING, a friend in a trap, 29 rule of the road, 29 ordinary care, 29 foot passengers to look out, 29, 240 on wrong side, presumption, 240 more than ordinary care, 29 stage coach upset, 246, note (d) racing with rival omnibus, 80, notes (d), (/), 262 servant driving on master's employment, 78, note (y) runaway horse, 167 DUTY, definition of, 1 negligence only, where breach of, 3 duty may arise out of contract, 2, 6 breach of, to third person not privy to contract, 7 how duties arise, 6 discretionary duties of corporations, 64 imposed by statute more strictly construed, 9, 126 personal, cannot be delegated, 86, 122, 129 imperative or discretionary duty on corporations, 150 — 153 EMPLOYERS' LIABILITY ACT, 1880 general law, 89 contracting out of the act, 89 efiect of the Act, 90 (1818) INDEX. 19| . nrho paging refers to the [•] pages.] EMPLOYEES' LIABILITY Am— continued. who axe " workmen," 91, 93, notes (y), (a) "defect," 94 "superintendence)," 96, 97 "machinery," 96 "manual labour," 97 conforming to orders, 98 not giving notice, 98, 99 rules, 98 person having charge of train, &c., 99 contributory negligence, 100 s. 2 (exceptions), 100 s. 3 (amount recoverable) 101 s. 4 (notice), 101 notice of injury, 102, 103, 104 s. 5 (deductions), 105 s. 6 (county court), 106 s. 7 (serving of notice), 107 serving of notice, defect in notice, 108 s. 8 (interpretation), 108 EMPLOYMENT, course of, 77 common, 72 [see Master and Seevant] EQUAL RIGHTS, 1, 3, 4, 5, 30, 44 ESCAPE, liability of sheriff for, 210, note {g) EVIDENCE, what to go to jury, 22, 245, 246 burden of proof, 213, 214, 227, 231 of general skill of physician, 197 EXACT DILIGENCE [see Moee than Oedinaey Caee] EXCAVATIONS, 5, 39 EXHIBITION, stand for viewing, 122 EXPLOSIVE SUBSTANCES [see Dangeeous Things] FACTORIES AND WORKSHOPS, 143—148 FELLOW SERVANTS, 72 [see Mastee and Servant, Employees' Liability Act] FENCES, fencing out cattle, 48 PINE [see Penalty] FIRE, 40, 131 cut grass on railway bank, fire spread, 17, note (m) FIRE ARMS, 139 [see Dangerous Goods, Explosive Substances] FIREWORKS [see Dangeeous Goods], 139 (1819) 196 INDEX. [The p6?ing refers to the [•] pages.] FLOOD, extraordinary, 17, note (m) rainfall, 16, note (i) FOOT PASSENGERS [see Deiving] FOREMAN [see Masteb and Sbevant] FORGERY, bankers to detect [see Bankees] FOWLS, whether owner liahle for trespass by, 54 FRAUDULENT ACT, not negligent, 2 GAS COMPANIES, 141 ought to use more than ordinary care, 141 must exercise proper supervision over pipes, 141 reasonable opportunity of knowing of defect, 142 GAS PIPES, 16, note [I), 141, 142 GATES [see Level Ceossings, Fences] GOVERNMENT OFFICERS, not answerable for acts of fellow servants, 109 acts of subordinates, 206 servants, 207 GRATUITOUS ACTS, 11 note (y), 196, 199, 223 [see Voltjnteee] GROSS NEGLIGENCE, 12, 160, 161, 196, 198 [see MOEE than OEDINAEI! Caee] GUEST, 28 [see Host, Innkeepers] GUNPOWDER [see Explosive Substances] GUNS [see Dangerous Goods] HAIRWASH [see Dangerous Goods] HARBOURS [see Docks] HIGHWAYS, person walking in street, barrel falling from crane, 30 regulated by particular statue, 57 nuisance, 58 non-repair, 58 corporation to repair by statute, 58 to protect persons using highway from danger, 59 obstructions of, 59 unreasonable user of, 59 power to interfere to be strictly pursued, 59, 60 lawful obstruction, negligence in, 60 bound to guard against danger, 60 owner of land adjoining highway to use care, 61 bridges, 62 canals, 63 (1820) INDEX 197 CThe paging refers to the l*"] pages.] HIRE, master allowing servant to be hired, 84 [see Mastek and Sebvant] of chattels, 25, 74, 121, 122 HOLE [see Excavations] HORSE [see Animals, Deivinq] hire of, 122, 123 carriage of, 172 HOST, to guest, ordinary care, 28 trap, 29 [see Innkeepers] HOTEL-KEEPERS [see Innkeepees] HUMAN LIFE, degree of care reqtiired with respect to, 139, 180 HUSBAND AND WIFE, loss of, under Lord Campbell's Act, 251 damages under, 253 ICE, horse slipped upon, remote, 17, note (m) IDENTIFICATION, of passenger with driver, &c. , 241 INFANTS [see Child] INJURY, definition of, 1 injury caused partly by defendant, partly by something else, 17, 21 no defence that injury would have happened without defendant's act, 22 causing death [see Campbell's (Lobd) Act] INNKEEPERS, not insurers, 193 bound to take more than ordinary care, 193 act of God or Queen's enemies good defence, 193 contributory negligence, 193 liable for theft of servant, 193 not for burglary or robbery, 193 liable in absence of guest, 194 protection of, by statute, 194 INSURANCE, 10 insurance money no set off against damages, 176 in case of ships, 222 INSURER, 10 common carriers, 126, 165 when not an insurer, 165 passenger taking control of luggage, 177 carriers of passengers not, 179 innkeepers not, 193 physicians and surgeons not, 197 owner of ship ^nm^/ocie is an, 211 (1821) 198 INDEX. [The paging refers to the [•] pages.] INEVITABLE INJURY [see Act or God] corporation not liable for, 156 INTENTIONAL ACT, not negligence, 2 INTEEFEEENCE OF THIED PAETY [see Thied Paety] INVITATION, implied invitation to cross level crossing, open gates, 133 upon premises, 36, 131, 132 whether an invitation in fact, 132, 133 shops, 132 railways, 132, 133 docks, 134 JOINT TOETFEASQES, 264 may be sued jointly or* separately, 265 JUDGES, irresponsible, 206, note [y) duty of, at trial as to nonsuit, 22, 245, 246 JUDICATUEE ACT, ships, 212 trustees. 111 JURY, what question to be left to, 22, 245, 246 KNOWLEDGE, scienter, ferocious animals, 137 notice of danger to corporation, 65 LAND, &o., OWNERS OF, equal rights, 30, 31 digging near edge of land, 31 underground, 31, 33 support of buildings, 32, 33 property used for own advantage, more than ordinary care, 35 invitation, 36 nuisance, 36 licensee, liability towards, 37 trap, 38 trespasser, 39 spring guns, 39 excavations, 39 setting fire to premises, 40 poisonous trees, 43 dangerous substances, 43 water, 43 pipes, cisterns, &c., 46 landlord and tenant, 47 [see Landlobd and Tenant] owners of cattle, 48 fences, 48 more than ordinary care, 128 property used in extraordinary manner, 129 danger, 129 grantee of a market, 130 level crossings, 130, 133 sparks from engines, 131 invitation, 131—133 (1832) INDEX. 199 [The paging raters to the [•] pages. ] LANDLORD AND TENANT, landlord not liable for negligence of tenant, 47 repairs, 48 liability to guests of tenant, 48 tenant's neglect to repair fences, 49 LANDLORD OF INN [see Ikkkbepebs] LATENT DEFECT, 27, 189 "LAWFUL," it shall be, 152 LEGAL DUTIES, 1 LENDER [see Boeeowee — Hieee] LESSOR AND LESSEE [see Landloed and Tenant] LESS THAN ORDINARY CARE, 11, 223 gratuitous depositaries, 223 bankers as gratnitons depositaries, 223 gratuitous bailor, 224 gratuitously dedicating a road, 224 volunteer, 224, 225 bare licensee, 224 trespasser, 225 doing a gratuitous service, 225 gratuitously acting as solicitor, 225 LETTER [see Hieee of Chattels] LEVEL CROSSINGS, 50, 151, 130, 133, 188, 240 LICENSEE, liabiliiy of owner of premises towards, 28, 37, 224 LIFE, LOSS OF [see Campbell's Act] human, degree of care required with respect to, 139, 180 Insurance money no set oif against damages, 259 LOAN [see Boeeowee] LOCOMOTIVE [see Spaeks] LODGING-HOUSE KEEPER, liable only for ordinary negligence, 193 LORD CAMPBELL'S ACT [see Campbell's (Lord) Act] LUGrGAGE [see Caeeiee] MACHINERY [see Dangerous Goods] persons employing, bound to use more than ordinary care, 142 not bound to fence, as against licensee, sed qusere, 143 negligent fencing misleading plaintiff, 143 statutes with respect to, 143 — 148 . MAGISTRATES [see Public Officees] MAIL COACH [see Caeeiee] MANDATORY, 11, note (y), 123 (1823) 200 INDEX. [The paging refers to tlie [•] pages.] MAN-TEAPS, 39 MANUAL LABOUR, . under Employers' Liability Act, 97 MARKET, grantee to keep it in fit state, 130 MASTER AND SERVANT, relation of master and servant, 66, 84 1. Breach of duty to servants, 67 personal negligence of master, 67 I negligence by representative or colleague, 67 hiring incompetent servants, 67 providing proper materials, 67 no warranty, 68 giving proper orders, 68 notice of extraordinary risks, 69 rules for safe management, 69 implied risks of service, 69, 239 only applies to such dangers as the servant is aware of, 69 renewed service, alter notice of danger, 69, 70 no defence other servant negligent if master's act the cause, 72 fellow-servant, common employment, 72 fellow-servants, who are, 73, note (e) volunteer, 74 servants of dififerent masters, 74 who is a "superintendent," 75 " coljaborateur," 75 "foreman," 75 "manager," 75 common employment. 75 what is, 75, note (m) 2. Breach of duty to others, 77 master responsible for his own negligence, 77 or that of his servant, 77 servant pursuing master's employment, 77 what acts are in the course of employment, 78 where act within scope of employment, but done for private purpose, 79 no defence that servant acted contrary to orders, 79, 80 nor illegally, 80 wanton act a defence, 80, 81 intentional act, 81 course of employment, what is, 81, 82 whether servant stiU in service, 82 under-servants, 82 owner of property primd facie liable, 83 who is the master, 83 servant hired by another, 84 relation of master and servant must exist, 84 contractors, 84 master interfering with work done by contractor, 85 personal duties, 85, 86, 87 implied promise that things are safe, employer liable, 86 " contractor," who is a, 86 paid by day or job, 86 liable to dismissal, 86 employer of contractor not liable, 86, 87, 158 liable in some cases, 88, 149, 156 (1824) INDEX. 201 [The pngtng refers to the [«] pages.] MASTER AND &ERV ANT— continued. 2. Breach of duty to others— continued. sub-contractor, 87 owner responsible for wrongful acts ordered by him to be done, 87, 89 government servants not responsible for negligence of others in the same employment, 89. [see Employees' Liability Act, Seevants] MASTER OF SHIP [see Ships] MATERIALS, EXPLOSIVE Isee Explosive Substances] MEASURE OF DAMAGES [see Damages] MEDICAL MEN [see Physicians] MERCHANT SHIPPING ACT [see Ships] MINES, regulations relating to, 145, and note (c) MINISTERIAL DUTIES OF PU'BLIC OFFICERS [see Public Officees] MISCHIEF, "WANTON [see Wanton Act] MISLEADING, plaintiff into feeling of security, 38, 123, 187, 190, 240 negligent fencing of machinery, 143 stopping of train at platform, 190 MORE THAN ORDINARY CARE, 10, 24 persons professing skill, 25, 121, 123 for benefit of performer, 121, 122 gratuitous loan in case of bailee, 121 owner using property for his own advantage, 122 public stands, &c., danger, 122 benefit of owner, 122 invitation, 123 no defence, contractor, 122, 125 volunteer, 123 mandatory, 123 Skill, 123 list of persons undertaking to use skill, 124 persons doing dangerous things, 125 performing statutory duties, 125 caxriers, 126, 127 MUNICIPAL CORPORATIONS [see COEPOEATIONS] MUTUAL BENEFIT [see Benefit] NAVIGABLE RIVER, ships upon, 215 NEGLIGENCE, definition of, 1, 6 negligence only where breach of duty, 2 "slight" "ordinary," and "gross," 12 duties requiring ordinary care, 24 — 120 more than ordinary care, 121 — 122 less than ordinary care, 223, 225 contributory negligence [see that title'] (1825) 202 INDEX. [The paging refers to the [■] pages.] NEGLIGENCE— conimtterf. act of God a good defence, 18, 43, 156, 165 by owners of real property, 30 — 51, 128 — 133 of docks, &c., 52, 134—136 of animals, 53—57, 136—139 of highways, 57 — 63 by corporations, 64, 65, 148 — 159 by masters, 66 — 108 by servants, 109, 110 by public oflicers, 110, 205—211 by trustees. 111 — 120 by owners of dangerous goods, 139, 140 by gas companies, 141, 142 by persons employing machinery, 142 — 148 by directors, 159 — 165 by carriers, 165 — 192 by innkeepers, 193, 194 by physicians, &c., 195 — 198 by solicitors, 198—203 by bankers, &c., 203, 204 by stockbrokers, 205 by owners of ships, 211 — 222 presumptions of negligence, 245 — ^250 res ipsa loquitur, 245 et seq. causing death, 251 — 257 damages for, 258—265 NON-FEASANCE [see Omission] NON-SUIT, when judge may direct, 22, 245, 246 NOTARY [see Public Officers] NOTICE [see Knowledge], under Employers' Liability Act, 98, 99, 101—104 NUISANCE, 36, 39, 58, 59 OBSTRUCTION, of highways [see Highways] of canals, docks, &c., 63, 134 ' of rivers [see Wateb] OCCUPIERS OF LAND, &C. [see Land] OFFICERS, PUBLIC [see Public Ofpicees] OMISSION OR COMMISSION, acts of, 39 OMNIBUSES, _ , racing, 80, notes (d) and (/) assaults on guards of, 79, note (J), 80, note (/) ONUS [see Evidence, Bueden op Proof] ORDINARY CARE, "ordinary" and " reasonable, " 128 neglect of duties requiring, 24 mutual benefit, 25 employment of services for reward, 25 bailee for hire, 25 skilled labour, 25 ei sej. (1826) INDEX. 203 [The paging reters to the [•] pages. ] ORDINARY NEGLIGENCE, 12 [see Oedinaey Caee] OWNER [see Land, Ships, Anijials] PARENT [see Child] PARTNER, solicitor liable for negligence of, 199 PASSENGER [see Cakeiee, Railway, Ships] PASSENGERS' LUGGAGE [see Caeeiee] PATENT AGENT, negligence by, 203 PENALTY, imposed by statute no bar to action, 140, 149 PERIL, bound to keep certain things at a man's peril, 10 fire, 40 poisonous trees, 43 dangerous substance, 43 water, 43 act of God, 43 savage animals, 53 PERISHABLE GOODS, carrier liable for negligence with respect to, 165 Carriers Act, 166 et seq. PERMISSION [see Licensee] PHYSICIANS, &c., more than ordinary care required from, 195 can sue for fees, 195, 196, 263 acting gratuitously, 196 "gross" negligence, 196 not an insurer, 197 unqualified person, 197 cannot desert a case, 197 evidence of general skill, 198 PIERS [see DoCKS] PILES IN RIVER, 47, note (o) PILOT [see Ships] " PITFALLS [see Teap, Excavation] PLATFORM [see Railway, Caeeiee] POISONS [see Dangeeous Things] POSTMASTER-GENERAL [see Public Officees] PREMISES, invitation to come upon [see Invitation] PRESUMPTIONS OF NEGLIGENCE, that defendant will act with ordinary care, 235, 245 that plaintiff will act with ordinary care, 235, 245 res ipsa loquitur, 245 — 250 change of course of action presumes negligence, 246 unusuai occurrence, 247 things left to get out of order, 247 accident must be connected with defendant, 248 if doubtful whether plaintiff is negligent, maxim does not apply, 249 - driving on wrong side, when a presumption, 249 mere fact of accident, 250 (1827) 204 INDEX. [The paging refers to the [•] pagee.] PRIMA FACIE EVIDENCE [see Peesumption] PRINCIPAL [see Agent] PRIVITY OF CONTRACT [see Conteact] PROFESSION OF SKILL [see Skill] [see Physicians, Solicixoes, Baeeistbes] PROMOTERS OF COMPANIES, liable for negligence, 165 PROPERTY, owners of real, 30— 51-, 128—133 PROXIMATE CAUSE, definition of negligence "proximately," 1, 3, 16 — 23 intervention of third parties, 17, 18, 21 intervention of other causes, 17 most efficient cause, 18, 19 [see CONTEIBUTOEY NEGLIGENCE, DAMAGES] PUBLIC COMPANIES [see Dieectoes] PUBLIC HIGHWAY [see HiGHVirAYs] PUBLIC OFFICERS, sheriff only to exercise ordinary care in respect of goods seized by him .towards owner of goods, 110 sheriff to exercise more than ordinary care towards person who employs him, 110 discharging ministerial duties, 205 partly judicial, 205, 206 bound to be skilful, 206 to select good subordinates, 206 government officers not responsible for subordinates, 207 commissioners not government officers, 207 cannot intrust duty to another, 207 must be proved upon whom the duty rests, 208 officers of courts of justice, notaries, sherifiEs, &c., 208 PUBLIC PLACE [see Race Stand] RACE STAND, 122 RACING [see Omnibus] RAILWAY [see Caeeiee] level crossings, 50, 130, 133, 151, 188, 240 fences, 50 sparks, 40, 41, 131 invitation upon premises, 132, 133 railway companies common carriers, 165 Carriers Act, 1830, 166—169 express contracts, 170 Railway and Canal Traffic Act, 173, 174 injury before special contract made, 174 not liable even for gross negligence if statute not complied with, 174 passengers' luggage, 176 passengers, 179 use of premises, 185 use of trains and carriages, 189 (1828) INDEX. 205 [The paging refers to the [*] pages.] RAILWAY COMPANIES [see Corporations] RAILWAY FENCES [see Fences] RAIN, extraordinaiy [see ACT OF God] REAL PROPERTY [see Property] REASONABLE CARE [see Ordinary Caee] REASONABLE CONDITION, 171 REASONABLE EXPECTATION, of servant that risk -will be altered, 68, 69 REASONABLE FULFILMENT OF DUTY, 27, 123, 124, 195, 199 REASONABLE PRECAUTIONS in dealing with dangerous things, 139, 141 REASONABLE RISK, 235, 236 REASONABLY CAREFUL MAN, 1, 16, 235 RECKLESS ACT [see Wanton Act] REMOTE CAUSE [see Proximate Cause] REMOTENESS OF DAMAGE [see Damage] REPAIRS [«ee Fences] of streets by corporation, 151 things getting out of repair, negligence, 247 railway bridges to be kept in repair, 62 RES IPSA LOQUITUR, 130, 245—250 change of course of action presumes negligence, 246 unusual occurrence, 247 things left to get out of order, 247 accident must be connected with defendant, 248 if doubtful whether plaintiff is negligent, maxim does not apply, 249 driving on wrong side of road, 249 mere fact of accident no evidence of negligence, 250 RESPONDEAT SUPERIOR [see Master and Servant] RIDING [see Driving] RIGHTS [see Equal Rights] RIPARIAN OWNERS [see Wateecoueses] RISKS, running reasonable, 235 et seq. of service, 68, 69, 239 RIVER, ships upon navigable, 215 [see Watee] ROADS [see Highways] ROMAN LAW, 11 "RULE OF THE ROAD," 29, 249 SAILING VESSELS [see Ships] (1829) 206 INDEX. [The paging refers to the [*] pages.] SCIENTER [see Knowledge] SCOPE OP AUTHORITY [see Authority] SERVANT [see Master and Servant] duties of servants, 109 no action against fellow servant, 109 servant hiring labourers, 110 SERVICE, risk incident to, 68, 69, 239 SEWERS, stopped up, 150, note (s) corporation running drains into main, 151 commissioners not putting flap in mouth of sewer, 157, 158 SHEEP [see Animals] SHERIFF, as respects owner of goods, 110, 209 as respects person employing him, 110, 209 his duties ministerial, 209 what is negligence in a, 210 responsible for acts of servant, 210 not for act of his predecessor, 210 nominal damages, 211 SHIPS, drifted against pier wall, remote, 17, note (m) owners of, common carriers, 211 unseaworthy ships, 211 rules of navigation, 212, 215 damages in cases of collision, 212 burden of proof, 213 moiety of damages recoverable, 214 presumption if ship does not render assistance, 215 ship upon a highway, 215 evidence of negligence, 216 inevitable accident, 217 employment of pilot, 218 ship employing tug, 219 measure of damages in general, 221 no reduction on account of insurance, 222 SHOPS. invitation to customer, 132 SKILL [see More than Ordinary Care], 195 et seq. skilled labour, 24 et seq. SLIGHT NEGLIGENCE [see More than Ordinary Caee] SOLICITORS, bound to take more than ordinary care, 198 "gross" negligence, 198 liable for negligence of agent, partner, or clerk, 199 obligation towards client, not towards stranger, 199 gratuitous services, 199 bound to continue case, 199 power to compromise, 200 action for costs, 200 not liable for error in judgment, 201 advice of counsel, 202 patent agent to show skill, 203. (1830) INDEX. 207 [The paging refers to the [•] pages.] SPARKS, 40, 131 SPECIAL CONTRACT [see Caeeiee] SPECIAL DAMAGE [see Damages] SPRING GUNS, 39 SQUIB, thrown from one to another remoteness, 15, note (g) STAGE COACHES [see Caeeiee] STAND [see Race Stand] STATION [see Railway] STATUTES, highways regulated by particular, 58 relating to dangerous goods, 140 relating to machinery, 143 — 148 protecting innkeepers, 194 allowing physicians to sue, 196 Solicitors Acts, 202, 203 unseaworthy ships, 211 Carriers Act, 166 Railway Act, 173 mines regulations, 145 merchant shipping, 212, 215 Judicature Act, 111, 212 Lord Campbell's Act, 251 STATUTORY DUTIES, more strictly construed, 9, 126 corporations performing, 148 interpretation of statute, 151 et seq. plaintiff must show duty was for his benefit, 159 injuries must be such as the statute contemplated, 159 STEAMBOAT [see Ships] STEAM-ENGINE, sparks from, 40, 131 STOCKBROKERS, to show more than ordinary care, 205 STORMS [see Act of God] STRANGERS [see Licensee, Teespassee] STREETS [see Highways] SUB-CONTRACTOR [see Contkactoe] SUPERINTENDENTS, not fellow servants, 72, 96, 97 SUPPORT, 5, 25, 26 SURGEONS [see Physicians] TELEGRAPH COMPANIES, 207, note (b) (1831) 208 INDEX. [The paging refers to the [•] pages,] TENANT [see Landloed and Tenant] THIED PARTIES, not privy to contract, liability for injury to, 7, 8, 21 intervening between cause and injury, 17, 18, 238 contributory negligence of third parties, 228 THUMB, crushed in railway carriage, 191 TICKET, EAILWAY, contract by, 180 conditions upon, 180, 181 TOLLS [see Docks] TORT. corporations can be guilty of, 149, 150 railway passengers can sue in tort or contract, 180 — 183 TORTFEASORS [see Joint Toetfeasoes] TOWING PATH, 63 TRAFFIC ACT [see Statutes, Caeeiee] TRAIN [see Railways] what is, under Employers' Liability Act, 99 TRAP [see Misleading], 38 host to give notice to guest of, 28 TRAPS [see Speing Guns] TREES, POISONOUS [see Dangeeous Things] TRESPASSER, 39, 325 TRUSTEES, 111. jurisdiction of Court of Chancery, 111, 113 not liable at common law in assumpsit. 111, note (a) executors, 111, note (a) ordinary care. 111, 112 (1) reducing property into possession, 113 (2) safe custody of the property, 114 Speight V. Gaunt, 115 (3^ proper investment of the property, 118 (4) distribution of the property, 119 ULTRA VIRES, 65 UNINTENTIONAL, 1 UNREASONABLE CONDITION [see Caeeiee] VIS MAJOR [see Act of God] VISITOR [see Invitation, Guest] VOLUNTEER, 74, 123, 224, 225 "WANTON ACTS [see Geatuitous Acts], 80, 81, 225 (1832) ENDEX. 209 [The paging refers to the [•] pages. ] WAREHOUSEMEN, railway companies are mere -warehousemen of luggage dejxisited, 178 WARNING- [see Knowledge. Misleading] WARRANTY [see Insueer] WATER AND WATERCOURSES, artificial to be kept at peril, 43 act of God, 43 natural, 43, 44 obstruction of, 44, 45 WHARVES [see Docks] WHISTLING, 155 [see RAILWAYS, 192] WILFUL [see Wanton Act] WINDOW, railway carriage, 191, 192 WORKMEN, under Employers' Liability Act, 91, 93 WRONG [see Tort] WRONG-DOERS, JOINT [see Joint Tortfeasors, Trespasser] the end 14 law ok neg. (1833) Phila. . The Blackstone Pub. Co. (1834)