Abraham & another v. The Great Northern Railway Company. virtue of the powers and provisions in the said act or acts of Parliament therewith incorporated, and not otherwise, enter upon the same part of the bed of the river, and make and construct part of the said railway thereon, the same being necessary for the purpose of making the railway. The plaintiffs replied de injuria. Upon the trial, it was contended, for the plaintiffs, that the defendants under this plea were bound, not only to show that the part of the river obstructed was delineated and described in the plans and books of reference, and was used for the necessary construction of the railway; but also that all notices required by the acts for the purchase of such part of the river from the owners of the bed of it, had been given, and all other things done which were requisite to vest that part of the bed of the river in the company. With The learned judge told the jury that the allegations in the plea did not make such proof necessary, and they found a verdict for the defendants. A rule nisi for a new trial has been obtained, on the ground of misdirection in this respect; also for judgment non obstante veredicto, on the ground that if the judge was right in his construction of the plea, the plea is bad for the want of averments that those various acts had been done, which it had been insisted ought to have been proved at the trial; and further, upon the ground, that none of the acts of Parliament authorize the company to construct their railway upon the bed of the navigable part of the river. This rule has been argued before us, and upon consideration we are of opinion that the learned judge was right in the construction which he put upon the plea; and, therefore, that there is no ground for granting a new trial. respect to judgment non obstante veredicto, we are of opinion that as against the plaintiffs in this action, who have no interest in the soil of the bed of the river, but have only the right of passage on the navigable highway common to all the queen's subjects, it was not necessary for the defendants to aver and prove that they had taken the proper steps to vest in them the ownership of the bed of the river. If they were entitled by the acts of Parliament to convert a portion of the navigable river into a railway, and so to obstruct and do away with a portion of the navigable channel, it cannot be material to the public at large, or to those persons who were in the habit of navigating that portion, whether the ownership of the bed of the river in that portion has been effectually transferred, or whether any one entitled to compensation in respect of such ownership has or has not been satisfied. The remaining question is, whether the defendants were authorized by any act of Parliament to construct their railway upon the bed of the navigable part of the river. The act on which the defendants relied, is 8 & 9 Vict. c. 20, s. 16, the Railways Clauses Consolidation Act, which provides that, for the purpose of constructing the railway, they may "make or construct, in, upon, across, under, or over any lands, or any streets, hills, valleys, roads, railroads, or tramroads, rivers, canals, brooks, streams, or other waters, within the lands described in the said plans, or mentioned in the said books of reference, or any correction thereof, such temporary or permanent inclined planes, tunnels, embankments, aqueducts, bridges, roads, ways, passages, conduits, Abraham & another v. The Great Northern Railway Company. drains, piers, cuttings, and fences, as they shall think proper." They have here constructed an embankment and road in and upon the river described in the plan, and mentioned in the books of reference. The word "rivers" is here used without any qualification, and would seem, therefore, to include navigable rivers as well as rivers not navigable, especially as the word "roads," here also used, plainly includes highways, along which the public have fully as extensive a right of passage as they have along navigable rivers. Other provisions are introduced into the act as to the mode of using roads, but none as to the mode of using navigable rivers. Whether such provisions were intentionally omitted, and if so, for what reason, we cannot tell; but we cannot see that such omission justifies us in qualifying the meaning of the word "river" in this clause, or in effect adding the words "not navigable," which are not to be found in the clause itself. The plans and books of reference would be before the legislature when the special act for constructing their railway was passed, and although it may be true, as was suggested, that no particular individual felt so much interest in opposing the act, by reason of the insertion of a portion of this navigable river in such plans and books, as to make it a subject of controversy during the progress of the act, yet we are not warranted in supposing that the legislature overlooked such insertion, or in limiting the operation of the plain words which the legislature has employed. The subsequent part of the clause in question was relied on by the plaintiffs, which provides that the company may "alter the course of any rivers not navigable within such lands, for the purpose of constructing and maintaining tunnels, bridges, passages, or other works, over or under the same, and divert or alter, as well temporarily as permanently, the course of any such rivers, in order the more conveniently to carry the same over or under or by the side of the railway, as they may think proper;" and it was urged that the legislature manifestly intended to confine the power of diverting and altering the course of rivers to those which are not navigable, which would be entirely frustrated if the word "rivers" in the prior part of the clause were held to include navigable rivers, since the language used in that prior part is so comprehensive as to include the power of diverting and altering the course of the rivers there mentioned. But we think that this reasoning is not sound. The prior part of the clause gives only the power of constructing works in and upon rivers within the lands described in the plans and books of reference; yet we think not so as to divert or alter the entire course of such rivers or to obstruct the whole navigation of them, if navigable; for we cannot suppose that the legislature would permit such lands to be included in the plans and books of reference, as would enable the company so to divert or alter the entire course of navigable rivers, or to obstruct the entire navigation of them. But the latter part of the clause, which does apply to such entire diversion and alteration of the course of rivers, is expressly confined to those which are not navigable. The one contemplates the appropriation of a part of the river to the uses of the railway, leaving the residue of it in its usual course, and the navigation of that residue unimpeded where it Seymour v. Maddox. is a navigable river. The other contemplates the entire destruction of the old course. The erecting any thing in a navigable river or upon a highway, which would be a nuisance if not authorized by act of Parliament, cannot by any reasonable construction of language be considered as a diverting or altering the course of such river or highway. No doubt, such an erection in a navigable river, by preventing the water from flowing at all along the site of the erection, would prevent the water of the river from flowing in its accustomed channels and course, in so ample a manner as it otherwise would have done, which is the language used in this declaration; but that is a very different thing from diverting or altering the course of the river within the meaning of the stat. 8 & 9 Vict. c. 20. For these reasons we are of opinion that the plea objected to is sufficient, and that the rule which has been obtained must be discharged. There was a cross rule for a new trial, obtained by the defendants, as regarded the grievances complained of in the first count of the declaration, which were for obstructing a road leading to the river. This rule was granted on the ground of the verdict for the plaintiffs being against evidence. It has not been argued, but it is agreed that that rule should be discharged by consent. Rule discharged. SEYMOUR V. MADDOX.1 Master and Servant Action on the Case A declaration in case alleged that the defendant was possessed of a theatre and of a stage therein, on which dramatic entertainments were performed, and of a dressing-room therein, and a floor underneath the stage, in which was a certain hole of great depth, across and along which said floor the performers at the theatre were accustomed to pass, from and to the said dressing-room, to and from the said stage; that the defendant hired the plaintiff to perform at the said theatre, and the plaintiff did perform in a certain opera, performed under the management and for the profit of the defendant; and it then became and was the duty of the defendant to cause the said floor to be so sufficiently lighted, and the said hole to be so fenced and guarded, during and until a reasonable time after the said performance, as to prevent any accident to those passing across and along the said floor from the stage to the dressing-room. That the defendant, well knowing the premises, permitted the said floor to be insufficiently lighted, and the hole to be open without any sufficient fence, during and until, &c., by reason whereof the plaintiff, who immediately after the performance was passing from the stage along the passage to the dressing-room, fell down the said hole, and was grievously injured: Held, first, that the facts stated did not raise the duty the breach of which was alleged; secondly, that the express allegation of duty was immaterial, and could not help, and, therefore, that the declaration was bad in arrest of judgment. CASE. The declaration alleged that the defendant was possessed. of the Princess's Theatre in Oxford Street, and of a certain stage VOL. V. 1 20 Law J. Rep. (N. s.) Q. B. 327. 15 Jur. 723. 23 Seymour v. Maddox. therein, on which operas and other dramatic entertainments were performed, and of a certain dressing-room therein, known as the dressing-room of the male chorus singers, and of a certain floor therein underneath the said stage, called, "The Mazarine Floor," in which said floor was a certain cut or hole of great depth, to wit, of the depth of fourteen feet, across and along which said floor persons performing at and in the said theatre in operas and other dramatic entertainments were accustomed before, during, and after the performance thereof, to pass from and to the said dressing-room, to and from the back of the said stage. That the defendant had hired the plaintiff to act, sing, and perform as a chorus singer at and in the said theatre, on the said stage, for reward in that behalf; and the plaintiff, heretofore, to wit, on, &c., did act, sing, and perform at and in the said theatre, on the said stage, under such hiring as aforesaid, in an opera called "The Crown Diamonds;" which opera was then and there performed under the management and for the profit of the said defendant. That it then became and was the duty of the defendant to cause the said mazarine floor to be sufficiently lighted, and the said cut or hole to be so fenced, guarded or secured, before, during, and until after the lapse of a reasonable time from the termination of the said performance, as to prevent any accident or injury to persons passing across and along the said mazarine floor, from and to the said dressing-room, to and from the back of the said stage. That the defendant, well knowing the premises, permitted the said floor to be insufficiently lighted, and the cut or hole to be open, without any sufficient fence, guard or security, before, during, and until and after the lapse of a reasonable time from the termination of the said performance; and by reason of such insufficient lighting, and of the said cut or hole being so open, without any sufficient fence, guard, or security, the plaintiff, who was then, immediately after the termination of the said performance, passing from the back of the stage, across and along the said mazarine floor, to the said dressing-room, fell down the said cut or hole, and was thereby grievously bruised, wounded, and injured, &c. The defendant pleaded, first, not guilty, and five other pleas, traversing the alleged duty and other allegations in the declaration. On the trial, before Erle, J., at the sittings in Middlesex, after Trinity term, 1850, a verdict was found for the plaintiff, damages 30l.; and in the following term a rule nisi was obtained to arrest the judg ment. Keane and Bittleston now showed cause. If the facts alleged are sufficient to raise a duty on the part of the defendant, which he has not performed, it is enough, although the statement of that duty in the declaration be wrong. [Lord Campbell, C. J. There must be an allegation of a breach of the duty which the law implies.] And, therefore, the real question arises in arrest of judgment under the plea of not guilty: the precise allegation of duty being immaterial, the traverse also must be the same, and all the other material Seymour v. Maddox. allegations are found for the plaintiff. Then it was clearly the duty of the defendant to take care that the passage would admit of the plaintiff's passing safely to the stage. This is not like the case of Priestley v. Fowler, 3 Mee. & W. 1; s. c. 7 Law J. Rep. (N. s.) Exch. 42. Here the plaintiff was hired for a special purpose, and could not be presumed to know the theatre as well as the defendant, and the declaration charges the omission of duty by the master himself. The cases of Hutchinson v. The York, Newcastle, and Berwick Railway Company, 5 Exch. Rep. 343; s. c. 19 Law J. Rep. (N. s.) Exch, 296, and Wigmore v. Jay, Id. 354; s. c. 19 Law J. Rep. (N. s.) Exch. 300, show that a master is bound to take reasonable care as regards his servant; and the allegation as to the "sufficient" lighting and guarding must now be taken to include all the circumstances necessary to create a duty. The Lancaster Canal Company v. Parnaby, 11 Ad. & E. 230; s. c. 9 Law J. Rep. (N. s.) Exch. 338. After verdict, all facts necessary to the finding of the verdict are to be implied. The Queen v. Waters, 1 Den. C. C. 361; s. c. 18 Law J. Rep. (N. s.) M. C. 53. Even a want of ordinary care on the part of the plaintiff, in a case like this, is taken to be negatived by the verdict. Goldthorpe v. Hardman, 13 Mee. & W. 377; s. c. 14 Law J. Rep. (N. s.) Exch. 61. And if it be assumed here that the plaintiff could not, with ordinary care, have avoided the injury, it cannot be said that there is no cause of action. Montagu Chambers, contra. The declaration does not state sufficient to raise the alleged duty on the part of the defendant. The averments must be taken strictly, and the court will take notice of the nature and practical requirements of the business in which the plaintiff engaged himself to serve. It is quite consistent with the alleged duty that there may have been a want of ordinary care on the plaintiff's part. [Lord Campbell, C. J. But we are to see whether the other allegations do not admit of evidence having been given to support the duty. The allegation of duty seems to be quite immaterial. If the facts stated do not raise the duty, that allegation will not help. Patteson, J., referred to Cane v. Chapman, 5 Ad. & E. 647; s. c. 6 Law J. Rep. (N. s.) K. B. 49.] The duty is an inference of law arising out of the facts stated; and assuming all the allegations to have been proved, no such duty as that stated can arise. The court will not look to the averment of the breach, for the purpose of supporting the other allegations. (Erle, J. All the averments may be read together. In The Lancaster Canal Company v. Parnaby, the breach in the declaration was taken into consideration with the other averments.] Supposing that to be so, and the breach here is taken into consideration, still a sufficient duty cannot be inferred. The alleged omission to light or fence is not necessarily inconsistent with reasonable care and caution in the carrying on the business of a theatre, and it is not averred that the defendant knew that the particular hole existed, or that it was not sufficiently lighted and fenced. According to Priestley v. Fowler, it should appear that the defect or omission was |