3. B. leaves a bullock tethered on the highway. A., driving at an incautiously fast pace, runs over and kills the bullock. A. has wronged B., for he might, with ordinary care, have avoided running over the bullock, though B. was negligent in leaving it in such a place unwatched (e). 4. A. wrongfully places a pole across a public street. The pole is of such a size that a rider in the street approaching at a reasonable pace would see it in time to pull up. B., riding along the street at a furious pace, comes against the pole and is hurt. A. has not wronged B., for B. might have avoided harm by using ordinary care, and A. could not by any ordinary care have prevented the consequences of B.'s negligence (ƒ). [5. The X. railway company is entitled to run trains over the line of the Z. company. A train of company X. running on the Z. company's line is thrown off the rails by an obstruction placed there by the negligence of the Z. company's servants. M., a passenger in the train, is injured. If the driver of the train could, with ordinary care, have seen and stopped short of the obstruction, the X. company has, but the Z. company has not, wronged M. (9).] 6. A. is a child of tender years, in the custody of B., who leads A. across a carriage road without using ordinary care in watching for approaching carriages. C., driving carelessly along the road, runs over both A. and B.; but B. might have avoided the accident with ordinary care. C. has not wronged A. (h). 7. A. is a child of tender years, in the custody of B., who allows A. to go alone across the road. C., driving along the road, runs over A. Whether B. was negligent in letting A. go alone is not material to the question whether C. is liable to A., though it may be material whether C. perceived, or with ordinary care would have perceived, that A. was not capable of using the care and caution which a grown man may reasonably be expected to use (i). (e) Davies v. Mann, 10 M. & W. 546. The animal in that case was a donkey. (f) Butterfield v. Forrester, 13 East, 60. (g) Armstrong v. L. & Y. R. Co., L. R. 10 Ex. 47, where the decision seems to be put on the ground of proximate cause. [But see now Mills v. Armstrong, 13 App. Ca. 1. The true conclusion in the case put seems to be that M. has a right of action against both companies.] (h) Waite v. N. E. R. Co., Ex. Ch. E. B. & E. 719, 28 L. J. Q. B. 258 (1859). Here the proximate cause of the harm is the negligence of the child's custodian, not of the other party, who is entitled to as sume that the custodian will use ordinary care for both the child's safety and his own. (i) There are many American decisions on points of this kind, some one way and some the other; O. W. Holmes, the Common Law, 128, Bigelow L. C. 729. Putting aside the [now overruled] doctrine of imputed negligence" as irrational, it would seem that the real question is whether the defendant should have known that he had to do with a helpless or comparatively helpless person, to whom therefore more than ordinary care was due (clause 62, sub-clause 3, above). imma Collateral 65. A person who suffers harm by the negligence of negligence another is not guilty of contributory negligence by reason only that he is negligent, or is otherwise a wrongdoer, in matter irrelevant to the harm suffered by him. terial. Action under stress of danger Illustration. A. goes out shooting, and a shot fired by him accidentally wounds B. If B. had not a right to be where he was, this may be material as tending to show that A. could not be reasonably expected to know that he was likely, by firing then and there, to harm any person, but it is not material otherwise. 66. A person who suffers harm by the negligence of another is not guilty of contributory negligence by reason only that, being by the other's negligence exposed to imanother's minent danger, he does not act in the manner best fitted neglito avoid that danger (k). caused by gence. Right to rely on others' diligence, and take lesser risk to avoid greater (1). 67. It is not negligence (a) to rely on the diligence of others unless and until negligence is manifest ; (b) voluntarily to incur risk in order to avoid risk or inconvenience to which one is exposed by the negligence of another, and which at the time may reasonably appear to be greater than the risk voluntarily incurred. Illustrations. 1. A. and B. are the drivers of carriages approaching one another. Each is entitled to assume that the other will drive competently and observe the rule of the road, but if and when it becomes manifest to A. that B. is driving on his wrong side, or otherwise negligently, A. must (k) The Bywell Castle, 4 P. Div. 219; other authorities collected in Marsden on Collisions at Sea, pp. 6, 7. The rule is of importance in maritime law, and may be of importance in other cases; cf. Wanless v. N. E. R. Co., L. R. 7 H. L. 12; cf. 3 App. Ca. 1193. (1) Some such rule as this is in dicated by English decisions and dicta, though I do not think it is anywhere laid down in a complete form; Clayards v. Dethick, 12 Q. B. 439; Gee v. Metrop. R. Co., L. R. 8 Q. B. 161; Robson v. N. E. R. Co., L. R. 10 Q. B. at p. 274; Lax v. Mayor of Darlington, 5 Ex. D. 28; cf. Horace Smith, 156, 157. take such precautions as are reasonably fitted, having regard to B.'s conduct, to avoid a collision. 2. A. is riding in a carriage hired by him from B. The driver provided by B. is incompetent, by reason whereof the horse runs away with the carriage towards a deep nullah. A. jumps out of the carriage to avoid being thrown down the nullah, and in so doing is injured. B. is liable to A. if, under all the circumstances, A. acted reasonably in contemplation of an apparently greater risk and in order to avoid the same (m). 3. A. is the owner of horses kept in a stable. B. unlawfully digs a trench and places rubbish in the road giving access to the stable, which makes it difficult but not impossible to take horses out. A. attempts to lead a horse out over the rubbish, and the horse falls into the trench and is injured. It is a question of fact whether, under the circumstances, the risk was one which A. might reasonably incur. If it was, B. has wronged A., notwithstanding that A. voluntarily incurred some risk (»). 68 (0). A person who does any of the following things:- Custody of dangerous (a) collects, keeps or uses any dangerous thing on land things. occupied or used by him: (b) keeps a dangerous animal: (c) keeps or deals with loaded firearms, explosives, poison or any other dangerous instrument or goods, or noxious or deadly thing: (m) In the summer of 1883 several passengers, including two English judges, were in a precisely analogous situation in a runaway car on the Northern Pacific Railway. Ultimately those who did not jump out came to less harm than those who did. But surely it could not be maintained that it was contributory negligence to jump out under the circumstances. In some cases it may be prudent even to run a very great risk, as to jump from the roof or top windows of a house on fire. (n) Illustration 3 is Clayards v. Dethick, 12 Q. B. 439. Clayards v. Dethick is disapproved by Lord Bramwell; see appendix to Horace Smith on Negligence, 2nd ed. Mr. Horace Smith thinks Clayards v. Dethick is right notwithstanding, and I agree with him. (0) The rule in Rylands v. Flet cher, L. R. 3 H. L. 330, that a G. W. Moo. P. C. N. S. 101, and cases there cited. is bound to take and cause to be taken all reasonably practicable care and caution to prevent harm being thereby caused to others, and is liable as for negligence to make compensation for any harm thereby caused, unless he proves that all reasonably practicable care and caution were in fact used. Explanations.-1. Dangerous things for the purposes of this section are fire (not being used in the ordinary way of domestic purposes), earth or water artificially collected in large quantities, explosive and inflammable matters, and any other thing likely for default of safe keeping to cause harm to neighbouring persons or property. 2. A dangerous animal for the purposes of this section is (a) any animal of a kind accustomed to do mischief: 3. A person who deals with a dangerous thing and is in good faith ignorant of its dangerous character is not subject to the liability declared by this section (p). Illustrations. 1. A. is the owner of an embankment constructed by authority of the Government. Part of this embankment is carried away in a storm, whereby B.'s adjacent land and crops are damaged. If A. has in fact been diligent in constructing and maintaining the embankment in such a manner as to be capable of resisting all such violence of weather as in that part of the country may be expected to occur, or if the storm was so extraordinary that no practicable precaution could have guarded against its effects, then A. has not wronged B. If the storm was such as might have been reasonably provided against, and if A. has not been so diligent as aforesaid (which may be inferred as a fact from the failure of the embankment in the absence of proof that the best known precautions were used), then A. has wronged B. 2. Sparks escape from a railway engine used by the X. railway com (p) As to poison, fire, explosives and dangerous animals, cf. the Penal Code, ss. 284, 285, 286, 289. pany on their line, and set fire to A.'s corn in an adjoining field. The X. company must make compensation to A., unless they prove that the best known practicable precautions were used to prevent the escape of sparks from the engines (9). Sparks from the fire are carried 3. A. burns weeds on his own land. into B.'s growing crop and set fire to it. B., unless he proves that the fire was carried by a sudden and extraordinary wind, or in some other unusual manner which he could not, by reasonable and practicable precaution, have prevented. 4. A., a zamíndár, maintains an ancient tank on his zamíndári for the benefit of agriculture. An extraordinary rainfall causes the tank to burst, and the water escaped therefrom carries away a building belonging to B. If A. has been diligent in maintaining the tank, and making provision against any ordinary overflow of water, A. has not wronged B. (r). 5. A. sends a parcel containing a detonating mixture to a railway station, to be carried as goods by railway company, without informing the company's servants of the nature of the contents. While B., a servant of the company, is handling the box for the purpose of dispatching it by train, and with care sufficient for the safe and proper handling of ordinary goods, the contents explode and injure B. There is nothing to show the specific cause of the explosion. A. has wronged B. The explosion also damages a cart of C.'s, which has brought other goods to be dispatched by train. A. has, but the company has not, wronged C. (8). 6. A., having left a loaded gun in his house, sends B., a young person inexperienced in handling firearms, to fetch it. A. tells B. that the gun is loaded, and directs him to handle it carefully. B. fetches the gun, and on his way back points it in sport at C. The gun goes off, and wounds C. A. has wronged C. (t). (g) See Vaughan v. Taff Vale R. Co., 5 H. & N. 679; Fremantle v. L. & N. W. R. Co., 10 C. B. N. S. 89. Such a case as Jones v. Festiniog R. Co. L. R. 3 Q. B. 733, where the use of locomotive engines not being especially authorized, it was held that the company used them at its peril, could, I suppose, hardly occur in British India. If it did, and if the clause now submitted had become law, the decision would be the other way, unless Act IV. of 1879, s. 4, implies that using locomotives without the sanction of the Governor General in Council is absolutely unlawful. As to the use of fire for agricultural purposes, such as burning weeds, see Turbervil v. Stamp, 1 Salk. 13, and 1 Ld. Raym. and D. 9. 2, ad 1. Aquil. 30, § 3. (r) Madras R. Co. v. Zamíndár P. of Carvatenagaram, L. R. 1 Ind. App. 364. (s) Lyell v. Ganga Dai, I. L. R. 1 All. 60; cp. Farrant v. Barnes, 11 C. B. N. S. 553. It is for the plaintiff to prove want of notice; see Williams v. East India Co., 3 East at p. 199, where a somewhat artificial reason is given. It seems enough to say that the want of notice is an essential part of the plaintiff's case; the duty is, not to abstain from sending dangerous goods, but to give sufficient warning if you do. As to the nonliability of a person innocently dealing with dangerous things of whose true character he has not notice, see the Nitro- Glycerine case, Sup. Ct. U. S., 15 Wall. 525. (t) Dixon v. Bell, 5 M. & S. 198, and Bigelow, L. C. 568, which goes even further. PP |