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Rusling, G., 306
Thompson, J., the younger, | Wales, H., 394
Savill, I., 517
Tilbury, J., the younger, 6 Warner, D., 208
Sayer, J., 202
Warren, J., 517
-- W. T., Warren, M.,
Todd, A. M., 460
& Denroche, C., 24
Schwartz, M., 231
Waterson, J. P., 303
Watkinson, J. E., 249
Scowen, S. G. M., 26
-- W. J., 88
Watts, J., 152
-- S., & Middleton, w. Stokes, G., 477
Turner, J., & Day, N. M.,
- J, N., 501
Wells, E. J., 264
Shaw, E., 88
- W., 109, 449 Welsford, H. C., 372
Shead, H., 45
- F. J., 54
Simmons, H., 202
Whitehead, J., 491
- W., & Whitehead,
Siryer, J., 82
Vaile, W. S., 73
Whitmey, J., 80
-- B., & Wigg, H., 334 Taylor, C. J., 88
- J., & Vines, J., 508 Tebbutt, T., 80
Wade, W., 436
Wiles, S., 231
No. 889—Vol. XVIII.
JAN. 21, 1854.
Price 1s., with Supplement, 2s.
NAMES OF THE CASES REPORTED IN THIS NUMBER.
VICE-CHANCELLOR Wood's Court.
Rigall 0. Foster.-(Injunction to restrain the Execuand Client-Retain and employ-Pleading) ...... 21 tion of a Deed) ...... COURT OF APPEAL IN CHANCERY.
COURT OF QUEEN's Bench. Thornhill v. Thornhill.-(Practice - Chambers, Refe.
Pollard v. Ogden.—(Bill of Exchange-Presentment rences to)....................
to Bank - Dishonour-Payment by Bank as In. Rolls COURT.
dorsers, or as Agents for Acceptor). ............. 39 Moffatt t. Burnie.-(Will, Construction of-Gift to Foxhall v. Barnett.—(Action for Imprisonment—Costs Husband and Wife " for their Lives" - Survivor.
of setting aside Inquisition - Special Damage) .... 41 ship-Remainder Estate)...................... 32 Warrington v. Early.-(Promissory Note-Alteration VICE-CHANCELLOR KINDERSLEY'S COURT.
- Memorandum as to Interest).................. 42 In re Bennett's Estate. - (Practice - Conveyancing
COURT OF Common PLEAS. Counsel - Chambers).........
Schultz v. Leidemann.—(Appeal from County Court). In re Hawke's Trust.-(Practice-Payment out of Court
-(Construction of Charterparty-Evidence of Cus-Shares) ........................
tom admissible to explain the Words“ in regular VICE-CHANCELLOR STUART'S COURT.
Turns of loading'') .........
......... 42 Forbes o. Limond.-(Deed of Inspection - Accession Noble v. Chapman.-(Practice- Amendment under the thereto by Creditors, what sufficient-Distribution
Common-law Procedure Act) ....... .......... 44 of Assets by Inspector- Subsequent Insolvency of Members of the Co-partnership-Dividends paid by
COURT OF EXCHEQUER. the Official Assignee).......................... 3
..... 33 | Wilkin v. Manning.—(Pleading— Issuable Plea) .... 44
no presumption of negligence arose. (See Rosc. N. P. The Scale of Charges for Advertisements will in future be Ev. 370, and the cases cited there). as follows:
£ 8. d. The same rule probably holds good as to accidents For 2 lines or under ..................
0 2 0
upon a railway; but in the latter case the character
of the accidents, the means of prevention, and the
3 0 ........................ 0 3 6 greater control under which a locomotive engine is, or
0 4 0 ........................
is supposed to be, than horses, strengthen the presumpAnd so on, at the rate of 6d. per line. *** A discount, proportioned to the number of repetitions,
tion of negligence in the event of an accident. When will be allowed upon all Advertisements ordered for three or
a stage-coach was upset by a collision with another, it more insertions.
might have been the fault of the “opposition," and
not of the “ patent safety,” by which we were traLONDON, JANUARY 21, 1854.
velling; but on a line of railway, when a collision
occurs, as both trains in general belong to the same In our last number we considered the measure of company, the question, whether it was the fault of A. damages, in actions under Lord Campbell's Act, for or B., can seldom arise. Again: the engine not being death occasioned by negligence, and we then observed liable to the influences which operate upon animated that the same principles are in general as applicable beings, and which sometimes cause horses to take fright, to this class of actions as to those which are ordinarily to fall down, to take to kicking, or the like, numerous brought for negligence. We now propose to consider circumstances are excluded in the one case which would some of these principles, distinguishing their application, have to be considered in the other. Accidents on railwhere it is necessary, to individuals and to railway ways almost invariably occur by collisions, by running companies.
| off the line, or by the breaking down of the engine In actions for negligence it is necessary to prove or carriages. Sometimes a wheel takes fire, sometimes either actual negligence, or an accident of such a nature the train runs into a station; but in all these cases, as to afford a presumption of negligence. Proof that a and indeed any that may be supposed on a railway, stage-coach broke down was held to raise a presump- the accident will be found to be of such a nature that tion that the accident arose from the unskilfulness of might have been avoided, and therefore properly to the driver or the insufficiency of the coach; so, if it raise the presumption of negligence against the comwas overloaded, proof of excess in the number of pas- pany, and call upon them to disprope it, and not upon sengers was held to be evidence that the accident arose the plaintiff to prove it in the first instance. Prove from the overloading; but where the horses took fright the accident, e. g. the running off the line; it is for and overturned the coach, or the accident arose from the company to shew that it was a mere accident, un. foggy weather or the removal of accustomed landmarks, I connected with negligence. Accordingly, in Carpuer,
The London and Brighton Railway Company, (5 Q. B. ) old authorities to sustain this view: for instance, the 747), it was ruled by Lord Denman, C. J., at Nisi case of Mitchil v. Alestree, (1 Vent. 295), for an injury Prius. that the plaintiff proved a primâ facie case of resulting to the plaintiff from the defendant riding an
unruly horse in Lincoln's-inn-fields; that of Bayntine negligence against the company, by shewing, that when
v. Sharp, (1 Lutw. 90), for permitting a mad bull to the train ran off the line, whereby he was injured, the be at large and that of Smith v. Pelah, (2 Str. 1264). train and railway were exclusively under the manage- for allowing a dog, known to be accustomed to bite, to ment of the company. There was, however, evidence go about unmuzzled. The precaution suggested by given inh-that ease, for the plaintiff, that the rails were the witness called for the plaintiff in this case* inay defective at the spot where the accident occurred, and be con
be compared to the muzzle in the case last referred
to. The case of Beaulicu v. Finglam, in the Year that, considering such state of the rails, the speed was
Books, (P.2, H. 4, fol. 18, pl. 5), comes very near to too great; and the counsel for the company abandoned this. There the defendant was charged in case for their oljection to the ruling of the learned judge, after so negligently keeping his fire as to occasion the dehaving obtained a rule nisi for a new trial on that struction of the plaintiff's property adjoining. The and another ground. The next case upon this point duty there alleged was, 'quare, cum secundum legem was Aldridge v. The Great Western Railway Company,
et consuetudinem regni nostri Angliæ, hactenus obten
| tam, quod quilibet de eodem regno ignem suum salvd (3 Man. & G. 515). That was an action against a ef
an action against a et securè custodiat, et custodire teneatur, ne per railway company for so negligently managing and con- ignem suum damnum aliquod vicinis suis eveniat; and ducting an engine that sparks flew from it upon a stack there was no suggestion that it was necessary to define of beans standing in an adjoining field, whereby the the particular sort of negligence that was complained stack was destroyed. A case stated for the opinion of of.” Coltman, J., said, “that the fact of the buildings the Court alleged that the engines used upon the rail. |
1 being fired by sparks emitted from the defendants'
engine established a primâ facie case of negligence, way were such as were usually employed on railways which called upon them to shew that they had adopted for the purpose of propelling the train, and that the some precautions to guard against such accidents." engine from which the sparks flew was used at the Maule, J., said, “I am far from saying that it is imtime in the ordinary manner, and for purposes au- | possible that this could have occurred without negli. thorised by the special act of the company. The Court
gence on the part of the company; but it at least affords held that the facts stated were not sufficient to enable
| a strong presumption of negligence, in the absence of
evidence to shew that something had been done by the them to infer either negligence or an absence of neg- company to lessen the chances of danger.” ligence, which was a question of fact for the jury. The only other case to which we shall refer is that of Tindal, C. J., said, “ If the case had gone to trial, and Richards v. The London and South-coast Railway Comthe plaintiff had proved that the engines had frequently pany,(13 Jur., part 1, p. 986; 18 L.J., C. P., 251), which set fire to stacks, that would have shewn negligence.
| was an action for negligently losing luggage, and it was
pence: | beld that the negligence, though alleged, need not be .... To entitle the plaintiff to recover, he must
proved; but this decision turned upon the point, that either shew some carelessness by the defendants, or lay the duty of the company was to deliver the luggage at facts before the jury from which it may be inferred.” | the London station, and that, not having done so, they The case was withdrawn, in order that the parties might were liable to an action, whether such non-delivery go to trial. In the next case, (Piggot v. The Eastern was caused by negligence or not. (See also Forward Counties Railway Company, 3 C. B. 229), for a destruc- v. Pittard, 1 T. R. 27). tion of the plaintiff's premises by reason of sparks
Secondly, if goods be sent by railway from A. to Z., emitted from the company's engine, evidence was and one sum is paid for their carriage the whole disheld admissible, in conformity with the dicta in the tance, the company so receiving them is liable, though preceding case, to shew that other engines of the they be lost on intervening lines belonging to other company on other occasions, in passing along the companies. (Scothorn v, The South Staffordshire Railline," had thrown sparks to a sufficient distance to way Company, 8 Exch. 341; Muschamp v. The Lancaster reach the buildings in question; and the Court fur- Railway Company, 8 M. & W. 421; Watson v. The ther held, that the fact of premises being fired by Ambergate Railway Company, 15 Jur., part 1, p. 448). sparks emitted from a passing engine was primâ facie The same rule would, it appears, apply to the case of a evidence of negligence on the part of the company, ren- passenger being injured on such intervening line; there dering it incumbent on them to shew that some pre- can be no difference in principle; and in Muschamp T. cautions had been adopted by them reasonably calcu- | The Lancaster Railway Company, Rolfe, B., in deliverlated to prevent such accidents. Tindal, c. J., in ing judgment, said, “As to the case which has been delivering judgment, said, “ The defendants are a com- put, of a passenger injured on a line of railway beyond pany intrusted by the Legislature with an agent of an that where he was originally booked, I suppose that extremely dangerous and unruly character, for their has been put as a reductio, ad absurdum ; but I do not own private and particular advantage, and the law re- see the absurdity. If I book my place at Eustonquires of them that they shall, in the exercise of the square and pay to be carried to York, and am injured rights and powers so conferred upon them, adopt such by the negligence of somebody between Euston-square precautions as may reasonably prevent damage to the and York, I do not know why I am not to have my property of third persons, through or near which their remedy against the party who so contracted to carry railway passes. The evidence in this case was abun- me to York." dantly suficient to shew that the injury of which the plaintiff complains was caused by the emission of
* Professor Farey stated that the emission of sparks a sparks, or particles of ignited coke coming from one
el particles of ignited matter from the top of the chimney miga
in a great measure be prevented by a cap or covering of wire of the defendants' engines; and there was no proof of any precaution adopted by the company to avoid
work, or by the insertion of a perforated metal plate place
horizontally at the chord of the arch of the smoke-box, so as such a mischance. I therefore think the jury came to intercent the particles escaping through tbe smoke tubes. à right conclusion in finding that the company were also stated that the danger might be altogether prevented b guilty of negligence, and that the injury complained shutting off the steam on passing a spot where danger of was the result of such negligence. There are many I to be apprehended.