Co-exist ence of other 58. Where several persons are guilty of similar nuisances, every one of them is severally liable to any person nuisances thereby harmed, notwithstanding that any such person may suffer harm of the same kind and of equal or greater amount from the other co-existing nuisances. no defence. When owner out Illustration. A., B., and C. have dye-works on the banks of the same river, and pour noxious refuse into it to the damage of X., a riparian occupier. A. has wronged X., even if the water flowing past X.'s land would not be made fit for use by A. alone ceasing to foul the stream (7). 59. An owner of immoveable property, not being in of posses- possession of it, can sue for a nuisance to that property only if the nuisance sion can sue for nuisance. What per sons are nuisance. (a) permanently affects the value of the property; or (b) tends to establish an adverse claim of right. Illustrations. 1. A. rents a house in a public street from B. Z. keeps his horses and carts standing in the streets for long and unreasonable times, in such a manner as to be an obstruction of the street, and a nuisance to the occupiers of the house. Z. has wronged A. only, and not B. (m). 2. A. rents a field from B., together with a watercourse passing through the field. Z., an occupier higher up the stream, fouls the water so as to be a nuisance to A. Z. has wronged both A. and B., as his acts would, if not resisted, tend to establish a claim to foul the stream as against B. 3. Z. has smelting works near A.'s land. kill or spoil the trees growing on A.'s land, occupation, and diminish its selling value. pying the land, Z. has wronged A. The fumes from the works make it generally less fit for Whether A. is or is not occu 60. The following persons are liable for the creation or liable for a continuance of a nuisance, as the case may be:(a) every one who actually creates or continues, or authorizes the creation or continuance of, a nuisance : (1) Wood v. Waud, 3 Ex. 748; Crossley v. Lightowler, L. R. 2 Ch. (m) Mott v. Shoolbred, L. R. 20 Eq. 22. (b) every one who knowingly suffers a nuisance to be nuisance on it (o); but a lessor is not liable under Explanation. Where a nuisance is caused by a tenant's use of property, the lessor is not liable for it by reason only that the property is capable of being so used. Illustration. A. lets to Z. a house, with a chimney near B.'s windows. Z. makes fires in this chimney, and the smoke thereof becomes a nuisance to B. Z. only, and not A., has wronged B., unless A. let the house to Z. with express authority to use that chimney in the manner in which Z. has used it (g). rent civil minal 61. A Civil Court may make an order for removing a Concurpublic nuisance at the suit of any person who suffers and crispecial damage by that nuisance, notwithstanding that an jurisdicorder for the like purpose might be made by a magis- tion in trate (»). case of special damage nuisance. Note. The subject of remedies for nuisance appears to be already from sufficiently dealt with by the Specific Relief Act (I. of 1877), chaps. 9 and public 10, and the Civil Procedure Code, chap. 35, and Form 101 in Sched. 4. Abatement of nuisances by the act of the party wronged without process of law is hardly in use in England, except as against infractions of semipublic rights like rights of common. (n) White v. Jameson, L. R. 18 Eq. 303. (0) Rosewell v. Prior, 12 Mod. 635; Todd v. Flight, 9 C. B. N. S. 377; Nelson v. Liverpool Brewery Co., 2 C. P. D. 311, and cases there cited. See, too, Gandy v. Jubber (undelivered judgment of Ex. Ch.), 9 B. & S. 15. (p) It seems the better opinion that the lessor's knowing of the huisance at the time of letting does not make any difference, unless he actually authorizes its continuance; (9) Rich v. Basterfield, 4 C. B. 783. () As this point has been raised and decided (Raj Koomar Singh v. Sahebzada Roy, I. L. R. 3 Cal. 20), it may be worth while to deal with it in the Bill. I do not find that it is noticed in the last revision of the Civil Procedure Code. Negligence and CHAPTER VIII. NEGLIGENCE. 62. (1) Negligence is the omission or failure to use due diligence. care and caution for the safety of person or property within the meaning of this Act, and a person so omitting or failing, whether in respect of his own person or property or that of others, is said to be negligent. Evidence of negligence. (2) Diligence in this part of this Act has the same meaning as due care and caution, and a person using due care and caution is said to be diligent. 63. (1) Where harm is complained of as caused by the negligence of any person, it is a question of fact whether that person has or has not been negligent. (2) A person is not liable for negligence where the facts are not less consistent with diligence than with negligence on that person's part. (3) In determining whether one person has or has not been negligent towards another, regard is to be had to that other's apparent means of taking care of himself (†). Illustrations. 1. A. occupies a warehouse in which coal is kept. The coal takes fire, and both A.'s warehouse and an adjoining warehouse belonging to B. are burnt. B. sues A. for compensation. It is a question of fact whether there has been negligence on A.'s part, either in the manner in which the coal was kept, or in the precautions used against fire, or in the endea vours made to subdue the fire when it was discovered (u). (t) It is not easy to formulate, as a proposition of law, what amounts or does not amount to "evidence of negligence." Still, as there is a question of law, some criterion must be assumed to exist, and the case of Hammack v. White (11 C. B. N. S. 588, also in Bigelow, L. C. on forts) contains something like an authentic statement of it, which is here followed. The cases to which it seems not to apply (such as Byrne v. Boadle, 2 H. & C. 722, and in Bigelow) are really cases of special liability where the burden of proof is on the defendant. (u) M'Cully v. Clark, ap. Bigelow, L. C. 559. 2. The X. railway company's line crosses a high road on the level. A., a foot passenger, attempts to cross the line at this place, not being expressly warned by any servant of the company not to do so, and is knocked down and injured by a train under the management of the company's servants. It is a question of fact whether, having regard to the precautions for the safety of persons crossing the railway, which have been prescribed by rules under the Indian Railway Act, 1879, to the local circumstances, to the usual course of traffic, and to the state of things at the time of the accident, the injury to A. was or was not caused by negligence on the company's part. may 3. A grass bank adjoins the X. company's railway, and is part of the company's property. Grass cut by the company's servants on this bank is there deposited during a dry season, and, after this grass has been there for some time, a train passes on the line, and the grass is immediately thereafter seen to be on fire. The fire spreads across a field and burns A.'s house. A. sues the company for compensation. It is a question of fact whether the company has been negligent (x). 4. A. is lawfully passing under a crane belonging to B., and worked by B.'s servants, which overhangs A.'s path. A bale of cotton which is being lifted by the crane falls upon A. and hurts him. It is a question of fact whether B.'s servants have been negligent in the management of the crane (y). 5. A., while crossing a public road on foot, is run over by B.'s carriage. A. cannot recover compensation from B. without proving facts tending to show that B.'s driver was in fault rather than A., for drivers and passengers are equally bound to use due care and caution in a place where both may lawfully pass and repass (z). 6. B. goes out riding in town with a horse he has just bought. While he is riding at a moderate pace, the horse, notwithstanding B.'s efforts to keep him in, runs away, and runs against and injures A., who is lawfully on the foot pavement. Unless B. managed the horse unskilfully, or knew it to be unmanageable, B. has not wronged A. (a). 7. If a person riding or driving sees, or with ordinary care would see, that a blind man, an infant, or a cripple, is in the way, greater caution is (x) Smith v. L. & S. W. R. Co., L. R. 5 C. P. 98, 6 C. P. 14, a case in which both Courts (C. P. and Ex. Ch.) held with some difficulty that there was evidence of negligence; cf. the later Indian case of Halford v. E. I. R. Co., 14 B. L. R. 1, O. C., where the decision seems to be one of fact on conflicting evidence. (y) Scott v. London Dock Co., 3 H. & C. 596, 34 L. J. Ex. 220. (z) Cotton v. Wood, 8 C. B. N. S. 568, 29 L. J. C. P. 333. Probably this kind of case is the origin of (a) Hammack v. White, 11 C. B. Wanless v. N. E. R. Co., L. R. 7 H. L. 12; cp. per Mellor J., Cliff v. Midland R. Co., L. R. 5 Q. B. at p. 261. Contri butory negli gence. required of him than if an able-bodied adult were in the same situation with regard to him (¿). 64 (c). (1) A person is not liable for harm of which the principal cause is the negligence of the person injured [or of a third person], although the harm would not have happened but for the negligence of the first-mentioned person, or of some person for whose negligence he is answerable. (2) A person suffering harm whereof his own negligence is the principal cause, though but for the negligence of some other person it would not have happened, is said to be guilty of contributory negligence. (3) A person's negligence is deemed to be the principal cause of harm which could immediately before its happening [or perhaps better, "immediately before it happened or became inevitable"] have been prevented by due care and caution on the part of that person alone. (4) Where by this Act any person is declared to be liable as for negligence, the rules of law concerning contributory negligence are applicable. Illustrations. 1. B. is driving on the wrong side of the road. A. is driving on the same side in the opposite direction, and with ordinary care he might keep clear of B.; nevertheless A. runs into B.'s carriage. A. has wronged B. 2. B. is the owner of a sailing vessel, which by reason of B.'s servants in charge of her failing to keep a proper look out is in the way of A.'s steamer. If the position is such that with ordinary care the steamer might avoid a collision, and the steamer runs down the sailing vessel, A. has wronged B., notwithstanding that if B.'s vessel had been properly navigated the collision would not have happened (d). (b) Illust. 7 is the concrete statement of sub-clause 3. I know no case exactly in point, but I think this must be the law. (c) This clause was drafted before the decisions of the C. A. and the House of Lords in The Bernina, 12 P. D. 58; Mills v. Armstrong, 13 App. Ca. 1. The words "or of a third person," which were inserted with an expression of doubt, would now have to be omitted, and the law as now laid down should be more explicitly declared. (d) Tuff v. Warman, 2 C. B. N. S. 740, in Ex. Ch. 5 C. B. N. S. 573, 27 L. J. C. P. 322. |