The defendant washed a van of his on the part of the street opposite his coachhouse, and the water so used ran along the gutter by the side of the street for about seventy feet down to the corner of another street, where, meeting an obstruction, it accumulated and expanded over part of the roadway instead of going as usual into the sewer, and there being a sharp frost at the time it shortly became frozen over. The cleaning the van in the street was an offence under the Metropolitan Police Act, 2 & 3 Vict. c. 47. s. 54. subs. 1, but the defendant was not shewn to have known of the obstruction at the corner, and if he had cleaned the van in the coach-house the water would also have gone into the same gutter in the street:-Held, that the defendant was not liable to the plaintiff for damage caused to his horse by slipping whilst passing over the frozen water at the corner, as such damage was too remote, and was not the immediate and proximate cause of the defendant's act.

The declaration alleged that the defendant wrongfully caused a certain van of

his to be washed in a public highway in the parish of, &c., and thereby created a public nuisance, and caused large quantities of water to be collected together whereby the said water became frozen and dangerous to the traffic of the said highway, and the plaintiff's horse whilst lawfully passing along the said highway slipped up on the said ice and fell with such violence that its knee was broken, and it became necessary to kill the said horse, and the plaintiff was thereby deprived of the use of the same, and was hindered in his business by reason thereof, &c.

Plea-not guilty. Issue thereon.

The cause was tried before Keating, J., at the Middlesex sittings in last Hilary Term when the following facts appeared. The defendant, who was a corn merchant, had the use of stables in Felton Street, Shoreditch, and by the side of the stableyard he had a coach-house, the gates of which abutted directly on Felton Street, and on that account, as being more convenient, the defendant's servants were in the habit of washing the defendant's van in the street itself. On the 21st of November last the van was accordingly so washed on the part of the street opposite the coach-house. The water used on the occasion ran along the gutter by the side of the street for about seventy feet down to the corner of another street called Holt Place, which

was at right angles with Felton Street, and at that corner it was stopped from the unevenness of the ground there, and from the drain being partially blocked up, and so could not get away as usual into the sewer. The consequence was that the water accumulated and expanded at this corner over the roadway for nearly three feet from the curbstone, and there being a sharp frost at the time it shortly became frozen over. The frost had set in about a fortnight previously to this, but there was no evidence to shew that the defendant was aware of the state of the ground at the corner of Holt Place, and that there was an obstruction which accumulated the water there. The coach-house had no communication with the stable-yard adjoining it, and if the van had been washed in the coach-house the water would necessarily have gone into the same gutter in the street, and so have found its way to the spot at which it accumulated as it did after the van had been washed in the street. The plaintiff, who was a jobmaster, sent a horse of his to have its shoes roughed on the day in question, when the animal passing over the ice at this corner fell and received the injury for which the action was brought.

The plaintiff relied on section 54, subsection 1 of the Metropolitan Police Act, 2 & 3 Vict. c. 47, which makes it an offence punishable with a penalty to, inter alia, clean any cart or carriage in any thoroughfare or public place. On the above facts the learned Judge, being of opinion that the defendant was not liable, directed a nonsuit, with leave to the plaintiff to move to set it aside and enter a verdict for 251., the value of the horse, reserving to the Court power to draw inferences of fact, and to make any amendment in the pleadings if necessary. A rule nisi to that effect having been accordingly obtained

Henry James and Lanyon now shewed cause. If there had not been the obstruction at the corner of Holt Place the water would have gone down the sewer in the usual way, and the ice which is complained of would never have occurred. caused the accident was not the immediate and natural consequence of the defen

What

dant's act in cleaning the van where it was cleaned, and therefore, even if that were an unlawful act, it was not the act which caused the damage, and the defendant is not liable to the plaintiff for the injury he sustained. If the van had been washed in the coach-house the water would also have gone into the gutter along the street, and the same consequences would have occurred at the corner of Holt Place from the obstruction there as occurred in this case; so that the washing of the van in the street cannot justly be said in any sense to have caused the damage. Scott v. Shepherd (1), which may be cited on the part of the plaintiff, is very different from the present case, for although the first thrower of the squib, which had been thrown about by others in self-defence, was there held to be liable for its ultimately reaching the plaintiff's eye, it was treated as if there had been only one throwing of the squib. The general principle of law is thus stated in Addison on Torts, 3rd edition, p. 5-" If the wrong would not have been followed by the damage, if other circumstances had not intervened, for which circumstances the defendant is not responsible, the damage is not the proximate result of the wrong, and is not sufficiently concatenated therewith." For this Hoey v. Felton (2) is cited, and in that case the judgment of Erle, C.J., fully supports such statement. So Pollock, C.B., in Greenland v. Chaplin (3), expresses a considerable doubt “whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated." In Smith v. The London and South Western Railway Company (4), although the plaintiff's cottage was some distance from the banks of the railway where the fire originated there was no reason why the fire should not have been

(1) 1 Smith's L. Cas. 399, 5th edition.

(2) 11 Com. B. Rep. N.S. 142; s. c. 31 Law J. Rep. (N.s.) C.P. 105.

(3) 5 Exch. Rep. 243; s. c. 19 Law J. Rep. (N.S.) Exch. 293.

(4) 39 Law J. Rep. (N.s.) C.P. 68; s. c. Law Rep. 6 C.P. 14.

carried there as it was by the wind, and the burning of the plaintiff's cottage was not occasioned by any other act which intervened, and which was not under the defendant's control. "The rule of law is well established that in cases of torts it is necessary for the party complaining to shew that the particular damages in respect to which he proceeds are the legal and natural consequences of the wrongful act imputed to the defendant."-Sedgwick on Damages, 82; and to the same effect is Mayne on Damages, 15. There was no evidence that the defendant knew of the obstruction, or that the water would not have flowed in the usual way into the sewer, and the case resembles that of Cor Burridge (5), where it was held that the owner of a horse which had strayed on to the highway and had then kicked a child was not liable unless he knew that the horse was of a vicious temper. The case of Harrison v. The Great Northern Railway Company (6) is distinguishable from the present one, for there the damage occurred from a state of things which the defendants knew of, and against which it was their duty to have guarded. So in Burrows v. The March Gas and Coke Company (7), the damage which resulted from an escape of gas was the natural consequence of the defendants' breach of contract to supply the plaintiff with a proper and sufficient service pipe.

V.

Metcalfe in support of the rule.-Suppose the accident had occurred at the spot where the van was washed, would not the defendant have been liable?

[BOVILL, C.J.-No doubt your task then would have been a much easier one than

it is now. There seems here, moreover, to be evidence of contributory negligence on the part of the plaintiff, and the Court, as I understand, are to draw inferences of fact.]

No point of contributory negligence was ever made at the trial, and it is submitted that it was never intended to be reserved for the Court. The defendant was doing an unlawful act in washing his

(5) 13 Com. B. Rep. N.S. 830; s. c. 32 Law J. Rep. (N.s.) C.P. 89.

(6) 3 Hurl. & C. 231; s. c. 33 Law J. Rep. (N.S.) Exch. 266.

(7) 41 Law J. Rep. (N.S.) Exch. 46; s. c. Law Rep. 7 Exch. 96.

NEW SERIES, 41.-C.P.

van in the street; it was not only an offence under the Metropolitan Police Act, 2 & 3 Vict. c. 47. s. 54. subs. 1, but it was a nuisance at common law. When the defendant was doing, therefore, what was not lawful, he ought to have guarded against the consequences of it, and to have taken care that no damage ensued. If he had a right even to put water into the gutter along the street he ought not to have put such an excess of water as he did. In Brown v. Bussell (8), where the occupiers of a brewery had for upwards of twenty years discharged the refuse from it into a barrel drain, which, after passing along a turnpike road, entered land belonging to another proprietor who did not get rid of it as his predecessors had done, and it became, after it had reached his land, a nuisance, it was held that the occupier of the brewery was the person by whose act the nuisance was caused. Smith v. The London and South Western Railway Company (4) shews that it is not necessary that the damage should have been one which the wrongdoer expected would follow from his wrongful act. Burrows v. The March Gas and Coke Company (7) is in point. Although the escape of gas in that case was the consequence of the pipe being defective, still the accident would not have happened but for the negligent act of the gas fitters' servant, a stranger to the defendants, and yet the defendants were held responsible. In The Romney Marsh bailiffs, &c., v. The Trinity House Corporation (9) the defendants' vessel, through the negligence of their servants, took the ground, and becoming from that cause unmanageable was driven against and damaged the plaintiffs' sea wall, and the defendants were held liable for such damage. It has been held that an action lies against a party for so negligently constructing a hay rick on the extremity of his land, that in consequence of its spontaneous ignition his neighbour's house is burnt down-Vaughan v. Menlove (10). It is stated in Reynolds v.

(8) 37 Law J. Rep. (N.s.) M.C. 65; s. c. Law Rep. 3 Q.B. 251.

(9) 39 Law J. Rep. (N.s.) Exch. 163; s. c. Law Rep. 5 Exch. 204.

(10) 3 Bing. N.C. 468; s. c. 6 Law J. Rep. (N.S.) C.P. 92.

BOVILL, C.J.-There is no doubt but that a man who does a wrongful act is liable for the ordinary consequences which are likely to arise from the commission of such an act, but that he is not generally responsible for what are not such ordinary consequences, unless he be shewn to have had knowledge of any fact which made it probable that the consequences, though not ordinary, would result from the

act. In the present case it has been left to us to draw inferences of fact, and to make also any necessary amendment in the pleadings. I do not, however, see how any amendment can be made. On the facts it seems to me that if in this case there had been no obstruction of the water from the washing of the van by the stoppage round the corner of the street, the water would have passed away down the gutter without doing any mischief. It is true the frost had been existing for about a fortnight, but I have come to the conclusion on the facts that the ordinary consequence of what the defendant did I would not have been for the water to have accumulated in the place it did. It has not been shewn that the defendant had any knowledge that the drain was there stopped, and that therefore he had no right to suppose that the water would not flow down the gutter and so pass away into the sewer. The place where the accumulation occurred was some distance from where the carriage was washed, and in the absence of evidence of knowledge by the defendant, I have come to the conclusion on the facts that the defendant could not be expected to have known that the washing of the carriage would have occasioned the accumulation and expansion of water so that it would have frozen as it did. Besides this it seems to me that the accident arose from the fault of the plaintiff himself. It is said that no such point was made at the trial, but still it is a matter to be considered before any

(11) 2 Ld. Raym. 1403.

How

new trial should be granted, and it seems to me that a person who allows his horse to go, when it is not roughed, on a quantity of ice which has been formed at the corner of a street does contribute to the accident which arises from it. ever, as this was a matter which may not have been intended at the trial to have been left for our consideration, I put my judgment on the ground that the injury which the plaintiff sustained was not the ordinary result of the defendant's washing his van at the place in which it was washed, and that the defendant is therefore not liable for it.

GROVE, J.-I am of the same opinion. I think that the damage was not the immediate or proximate cause of the washing of the van, or that it so came within the scope of the act which the defendant did, that he ought to have contemplated its taking place. I object to the expres sion, "natural consequence," as applied to these kind of cases, for the word "natural" gives no assistance in explaining the damage for which a person may be liable. If in the present case the water had been allowed to accumulate at the place where the carriage was washed, and such had been the immediate cause of the accident, I think the defendant would have been liable for it, but when the water got back to its normal course or channel to which it would have gone had the van been washed in the coach-house (so that the noxious act of the defendant had, as it were, been got rid of), I do not think that anything had occurred which would make him responsible for what followed afterwards. The damage which the plaintiff sustained was not from the defendant washing his van in the street instead of in his coach-house, and, for the reasons I have mentioned, I think this rule should be discharged.

KEATING, J.-I retain the opinion I formed at the trial. There is no doubt that the proximate cause of the accident arose from the accumulation of the water at the corner of the street which became frozen. At the trial I reserved the matter for the consideration of the Court, with power to draw inferences, and under these circumstances there may be nothing to prevent the Court from holding that there

had been contributory negligence on the part of the plaintiff, but as perhaps it was never intended that that matter should be reserved, I prefer putting my decision on the ground that the damage was not shewn to be the proximate result of the defendant's act. The natural consequence of the wrongful act of the defendant would be for the water to go down into the gutter and so find its way into the sewer. What was the proximate cause of the damage was the accumulation of this water at the corner of the street. I am unable to trace that to the act of the defendant. It might, it is true, be said that if the defendant had not sent the water down the gutter there would not have been this frozen water, but that would not have occurred if there had not been an accumulation from the stoppage in the flow. If this is to make the de fendant liable, where is his liability to be limited? I think that as the damage is not to be traced to the unlawful act of the defendant, it is too remote, and that this rule should be discharged.

Rule discharged.

jured the plaintiff :-Held, by the majority (GROVE, J., and BYLES, J.) of the Court that the relation between the defendant and plaintiff was that of bailor and bailee, with a warranty that the horse was reasonably fit, and further, per BYLES, J., that even if it was that of master and servant, the personal interference of the defendant was evidence of such negligence as would make make him liable; but per WILLES, J., that the relation was that of master and servant, and that in the absence of knowledge, the defendant was not liable,

This was an action by a cab-driver against a cab-owner for furnishing him with an unfit horse, which ran away and damaged him. The declaration contained two counts, of which the first in substance alleged that the defendant let on hire to the plaintiff, for use in a cah, a horse which he knew, and the defendant did not know, was vicious and unfit for the purpose, and had never been in a cab before, and which ran away and injured the plaintiff'; and the second, that in consideration of the plaintiff hiring a horse to use in a cab, the defendant promised that it was reasonably fit for the purpose, which it was not, but ran away and injured the

1872. Jan. 19, 20. May 4.

}

FOWLER V. LOCK.

Bailment-Master and Servant- Warranty-Negligence,

Where the plaintiff, a cab-driver, was furnished by the defendant, a cab-owner, with a horse and cab for the day, on the terms that the plaintiff was to pay a fixed sum for their use, and have the earnings for himself, and the defendant personally furnished the plaintiff with a horse which he, the defendant, had lately bought and not tried in a cab, and which (though the defendant did not know it) was unfit for the required purpose, and ran away and in

day, whatever might be the amount of the fares which he received, and which were

to belong to him. If he failed to pay the eighteen shillings, he would not be again supplied with a horse and cab. On the day in question, after two horses had been put in the cab supplied to the plaintiff, one of which refused to go beyond the entrance of the yard, and the other of which persisted in lying down, the horse in question was furnished by the defendant, who was present in person. This horse had been lately bought in the country, had lately arrived at the yard,