PART II.

NEGLIGENCE IN THE USE OF HORSES, &c.

CHAPTER I.

THE CRIMINAL AND CIVIL LIABILITIES OF PARTIES FOR INJURIES INFLICTED OR INCURRED IN DRIVING, ALSO THE RULE OF THE ROAD, AND NEGLIGENT DRIVING BY A SERVANT.

negligence.

NEGLIGENT DRIVING.

Definition of NEGLIGENCE is defined to be the omitting to do something which a reasonable man would do, or the doing something which a reasonable man would not do; in either case causing mischief to a third party; not intentionally, for then there would be no negligence (a).

Negligent driving.

Where killing a person is held to be

Murder.

An abstract rule as to what will constitute negligent driving can hardly be laid down. It must depend upon all the circumstances of each case. Thus, it was held by Bayley, J. (b), that a carter sitting inside a cart, instead of attending at the Horse's head, was guilty of negligence; and the fact that while he was there sitting, the cart went over a child, who was gathering up flowers on the road, and killed it, made him guilty of manslaughter. And the same point was ruled by Hullock, B. (c). But under other circumstances a driver would be more negligent in being off than on his vehicle.

If a man rides recklessly a wild Horse into a crowd, and kills a person, it will be Murder, in the same way as it has been so held when bricks were thrown from the top of a House into a thoroughfare, and killed a person (d).

If a person driving a Carriage happens to kill another, and he saw or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it will be Murder; for the

(a) Per Alderson, B., Blyth v. Birmingham Waterworks Co., 2 Jur., N. S. 333.

(b) Knight's case, I Lewin, C. C.

(c) Spring Assizes, 1829, quoted 1 Lewin, C. C. 168.

(d) See per Alderson, B., Reg. v. Cook, Appendix; 1 Ld. Raym. 143.

presumption of malice arises from the doing a dangerous act intentionally, and "there is the heart regardless of social duty" (e).

to be Man

If the driver might have seen the danger, but did not Where killing look before him, it will be Manslaughter for want of due a person is held circumspection (e). And generally it may be laid down, slaughter. that, where one by his negligence has contributed to the death of another, he is guilty of Manslaughter (f).

Where a man was indicted for the Manslaughter of a Burthen of woman by driving a Cab over her in a public street, and proof. his defence was, that he had used due and proper care in driving the Cab upon the occasion in question; it was held that the burthen of proving negligence did not lie on the crown, but that, upon the fact of the killing being proved, it was cast upon the prisoner to show that he had used due and proper care in driving the Cab ( g).

If a man drive a Carriage or Cart at an unusually rapid Furious pace (h), whereby a person is killed, though he calls driving. repeatedly to such person to get out of the way; if from the rapidity of driving, or from any other cause, the person cannot get out of the way in time enough, but is killed, the driver is in law guilty of Manslaughter (i).

If each of two persons be driving a Cart or Carriage, Carriages at a dangerous and furious rate, along a highway, and racing. they be racing and inciting each other so to drive, and one of them runs over a man and kills him, both are guilty of Manslaughter (k); and it is no ground of defence, that the death was caused by the negligence of the deceased himself, or that he was either deaf or drunk at the time (k).

up.

So, also, if the driver of a Carriage be racing with an- Driver unother Carriage, and from being unable to pull up his able to pull Horses in time, the first-mentioned Carriage is upset, and a person thrown off it and killed, this is Manslaughter in the driver of that Carriage. Thus, where two Omnibuses, running in opposition to each other, were galloping along a road, and a person killed by the upsetting of one of them, for which the driver was tried:-Mr. Justice

(e) 1 Hale, 476; Fost. 263; 1 East's Pleas of the Crown, 263; and see Reg. v. Cook, Appendix.

(f) Reg. v. Swindall, 2 C. & K. 230.

(g) Reg. v. Cavendish, 8 Ir. R., C. L. 178-C. C. R.

(h) See the General Highway Act, 5 & 6 Will. 4, c. 50, s. 78; and for the Metropolis, 2 & 3 Vict. c. 47, s. 54.

(i) Per Garrow, B., Rexv. Walker, 1 C. & P. 32.

(k) Reg. v. Swindall, 2 C. & K.

Causing death of Passenger.

Defence of contributory

Patteson in summing up said to the Jury, "The question here is, whether you are satisfied that the prisoner was driving in such a negligent manner that, by reason of his gross negligence, he had lost command of his Horses? And that depends on whether the Horses were unruly, or whether you believe that he had been racing with the other Omnibus, and had so urged his Horses that he could not stop them; because, however he might be endeavouring to stop them afterwards, if he had lost the command. of them by his own act, he would be answerable, for a man is not to say, I will race along a road, and, when I have got past another Carriage, I will pull up. If the prisoner did really race, and only when he got past the other Omnibus endeavour to pull up, he must be found guilty; but if you believe that he was run away with, without any act of his own, then he is not guilty. The main questions are, were the two Omnibuses racing; and was the prisoner driving as fast as he could in order to get past the other Omnibus, and had he urged his Horses to so rapid a pace that he could not control them? If you are of that opinion, you ought to convict him; but if his Horses ran away of their own accord, without any act of his, he is entitled to an acquittal" (7).

If a man undertakes to drive another in a vehicle, he is bound to exercise proper care in regard to the safety of the man under his charge, and if by culpable negligent driving he causes the death of the other, he will be guilty of manslaughter. But he cannot be found guilty of manslaughter if the deceased himself interfered in the management of the Horse and thereby assisted in bringing about an accident (m).

Contributory negligence is not an answer to a criminal Negligence. charge, as to a civil action (). And even if the doctrine of contributory negligence does apply to criminal cases, yet there is no contributory negligence on the part of anyone in merely getting into a vehicle and allowing himself to be driven, although the driver be perceptibly drunk (0).

Where killing

a person is held to be Accidental

Death.

When a person has been killed in such a manner that no want of care could be imputed to the driver, it will be Accidental Death, and he will be excused (p).

(1) Rex v. Timmins, 7 C. & P. 500. (m) Reg. v. Jones, 22 L. T., N. S. 217; 11 Cox, C. C. 544-Lush, J.

() Reg. v. Kew, 12 Cox, C. C. 355-Byles, J.

(0) Reg. v. Jones, 22 L. T., N. S. 217; 11 Cox, C. C. 544-Lush, J.

(p) Hale, 476; Fost. 263; 1 East's Pleas of the Crown, 263.