Abbildungen der Seite
PDF
EPUB
[blocks in formation]
[blocks in formation]
[blocks in formation]
[graphic][subsumed][merged small][merged small][merged small][merged small][merged small]
[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

ADVERTISEMENTS.

31

32

22

33333333

VICE-CHANCELLOR WOOD'S COURT.

Rigall v. Foster.-(Injunction to restrain the Execution of a Deed)

....

COURT OF QUEEN'S BENCH.

39

Pollard v. Ogden.-(Bill of Exchange-Presentment to Bank-Dishonour-Payment by Bank as Indorsers, or as Agents for Acceptor)... 39 Foxhall v. Barnett.-(Action for Imprisonment-Costs of setting aside Inquisition-Special Damage) .... 41 Warrington v. Early.-(Promissory Note-Alteration -Memorandum as to Interest)..

COURT OF COMMON PLEAS. Schultz v. Leidemann.-(Appeal from County Court). -(Construction of Charterparty-Evidence of Custom admissible to explain the Words "in regular Turns of loading")

Noble v. Chapman.-(Practice-Amendment under the Common-law Procedure Act) ...

42

42

44

......

33

[blocks in formation]

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:

[merged small][merged small][merged small][ocr errors][merged small][ocr errors]

£ s. d. 020

026

030

036 040

And so on, at the rate of 6d. per line.

A discount, proportioned to the number of repetitions, will be allowed upon all Advertisements ordered for three or more insertions.

LONDON, JANUARY 21, 1854.

In our last number we considered the measure of damages, in actions under Lord Campbell's Act, for death occasioned by negligence, and we then observed that the same principles are in general as applicable to this class of actions as to those which are ordinarily brought for negligence. We now propose to consider some of these principles, distinguishing their application, where it is necessary, to individuals and to railway companies.

In actions for negligence it is necessary to prove either actual negligence, or an accident of such a nature as to afford a presumption of negligence. Proof that a stage-coach broke down was held to raise a presumption that the accident arose from the unskilfulness of the driver or the insufficiency of the coach; so, if it was overloaded, proof of excess in the number of passengers was held to be evidence that the accident arose from the overloading; but where the horses took fright and overturned the coach, or the accident arose from foggy weather or the removal of accustomed landmarks, VOL. XVIII.

B

The same rule probably holds good as to accidents upon a railway; but in the latter case the character of the accidents, the means of prevention, and the greater control under which a locomotive engine is, or is supposed to be, than horses, strengthen the presumption of negligence in the event of an accident. When a stage-coach was upset by a collision with another, it might have been the fault of the "opposition," and not of the "patent safety," by which we were travelling; but on a line of railway, when a collision occurs, as both trains in general belong to the same company, the question, whether it was the fault of A. or B., can seldom arise. Again: the engine not being liable to the influences which operate upon animated beings, and which sometimes cause horses to take fright, to fall down, to take to kicking, or the like, numerous circumstances are excluded in the one case which would have to be considered in the other. Accidents on railways almost invariably occur by collisions, by running off the line, or by the breaking down of the engine or carriages. Sometimes a wheel takes fire, sometimes the train runs into a station; but in all these cases, and indeed any that may be supposed on a railway, the accident will be found to be of such a nature that might have been avoided, and therefore properly to raise the presumption of negligence against the company, and call upon them to disprove it, and not upon the plaintiff to prove it in the first instance. Prove the accident, e. g. the running off the line; it is for the company to shew that it was a mere accident, un. connected with negligence. Accordingly, in Carpue

to.

*

old authorities to sustain this view: for instance, the case of Mitchil v. Alestree, (1 Vent. 295), for an injury resulting to the plaintiff from the defendant riding an unruly horse in Lincoln's-inn-fields; that of Bayntine v. Sharp. (1 Lutw. 90), for permitting a mad bull to be at large; and that of Smith v. Pelah, (2 Str. 1264), for allowing a dog, known to be accustomed to bite, to go about unmuzzled. The precaution suggested by the witness called for the plaintiff in this case may be compared to the muzzle in the case last referred The case of Beaulieu v. Finglam, in the Year Books, (P. 2, H. 4, fol. 18, pl. 5), comes very near to this. There the defendant was charged in case for so negligently keeping his fire as to occasion the destruction of the plaintiff's property adjoining. The duty there alleged was, 'quare, cum secundum legem tam, quod quilibet de eodem regno ignem suum salvð et consuetudinem regni nostri Angliæ, hactenus obtenet securè custodiat, et custodire teneatur, ne per ignem suum damnum aliquod vicinis suis eveniat ;' and there was no suggestion that it was necessary to define the particular sort of negligence that was complained of." Coltman, J., said, "that the fact of the buildings engine established a primâ facie case of negligence, which called upon them to shew that they had adopted some precautions to guard against such accidents." Maule, J., said, "I am far from saying that it is impossible that this could have occurred without negli gence on the part of the company; but it at least affords evidence to shew that something had been done by the a strong presumption of negligence, in the absence of company to lessen the chances of danger."

The London and Brighton Railway Company, (5 Q. B. 747), it was ruled by Lord Denman, C. J., at Nisi Prius, that the plaintiff proved a prima facie case of negligence against the company, by shewing, that when the train ran off the line, whereby he was injured, the train and railway were exclusively under the management of the company. There was, however, evidence given in that case, for the plaintiff, that the rails were defective at the spot where the accident occurred, and that, considering such state of the rails, the speed was too great; and the counsel for the company abandoned their objection to the ruling of the learned judge, after having obtained a rule nisi for a new trial on that and another ground. The next case upon this point was Aldridge v. The Great Western Railway Company, (3 Man. & G. 515). That was an action against a railway company for so negligently managing and conducting an engine that sparks flew from it upon a stack of beans standing in an adjoining field, whereby the stack was destroyed. A case stated for the opinion of the Court alleged that the engines used upon the rail-being fired by sparks emitted from the defendants' way were such as were usually employed on railways for the purpose of propelling the train, and that the engine from which the sparks flew was used at the time in the ordinary manner, and for purposes authorised by the special act of the company. The Court held that the facts stated were not sufficient to enable them to infer either negligence or an absence of negligence, which was a question of fact for the jury. Tindal, C. J., said, "If the case had gone to trial, and the plaintiff had proved that the engines had frequently set fire to stacks, that would have shewn negligence. .... To entitle the plaintiff to recover, he must either shew some carelessness by the defendants, or lay facts before the jury from which it may be inferred." The case was withdrawn, in order that the parties might go to trial. In the next case, (Piggot v. The Eastern Counties Railway Company, 3 C. B. 229), for a destruction of the plaintiff's premises by reason of sparks emitted from the company's engine, evidence was held admissible, in conformity with the dicta in the preceding case, to shew that other engines of the company on other occasions, in passing along the line, had thrown sparks to a sufficient distance to reach the buildings in question; and the Court further held, that the fact of premises being fired by sparks emitted from a passing engine was primâ facie evidence of negligence on the part of the company, rendering it incumbent on them to shew that some precautions had been adopted by them reasonably calculated to prevent such accidents. Tindal, C. J., in delivering judgment, said, "The defendants are a company intrusted by the Legislature with an agent of an extremely dangerous and unruly character, for their own private and particular advantage, and the law requires of them that they shall, in the exercise of the rights and powers so conferred upon them, adopt such precautions as may reasonably prevent damage to the property of third persons, through or near which their railway passes. The evidence in this case was abundantly sufficient to shew that the injury of which the plaintiff complains was caused by the emission of sparks, or particles of ignited coke coming from one of the defendants' engines; and there was no proof of any precaution adopted by the company to avoid such a mischance. I therefore think the jury came to a right conclusion in finding that the company were guilty of negligence, and that the injury complained of was the result of such negligence. There are many

The only other case to which we shall refer is that of Richards v. The London and South-coast Railway Company, (13 Jur., part 1, p. 986; 18 L. J., C. P., 251), which held that the negligence, though alleged, need not be was an action for negligently losing luggage, and it was proved; but this decision turned upon the point, that the duty of the company was to deliver the luggage at the London station, and that, not having done so, they were liable to an action, whether such non-delivery was caused by negligence or not. (See also Forward v. Pittard, 1 T. R. 27).

Secondly, if goods be sent by railway from A. to Z., and one sum is paid for their carriage the whole distance, the company so receiving them is liable, though they be lost on intervening lines belonging to other companies. (Scothorn v. The South Staffordshire Railway Company, 8 Exch. 341; Muschamp v. The Lancaster Railway Company, 8 M. & W. 421; Watson v. The Ambergate Railway Company, 15 Jur., part 1, p. 448). The same rule would, it appears, apply to the case of a passenger being injured on such intervening line; there can be no difference in principle; and in Muschamp v. The Lancaster Railway Company, Rolfe, B., in delivering judgment, said, "As to the case which has been put, of a passenger injured on a line of railway beyond that where he was originally booked, I suppose that has been put as a reductio ad absurdum; but I do not see the absurdity. If I book my place at Eustonsquare and pay to be carried to York, and am injured by the negligence of somebody between Euston-square and York, I do not know why I am not to have my remedy against the party who so contracted to carry me to York."

*Professor Farey stated that the emission of sparks or particles of ignited matter from the top of the chimney might work, or by the insertion of a perforated metal plate placed in a great measure be prevented by a cap or covering of wire horizontally at the chord of the arch of the smoke-box, so as to intercept the particles escaping through the smoke tubes. He also stated that the danger might be altogether prevented by shutting off the steam on passing a spot where danger was to be apprehended.

« ZurückWeiter »