226 Injuries from spring-guns, man-traps, dog-spears, engines, and machines placed on land. By 24 & 25 Vict. c. 100, s. 31 (re-enacting the 7 & 8 Geo. 4, c. 18), it is provided, that whoever shall place or cause to be placed, or shall knowingly and wilfully continue, any spring-gun, man-trap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with the intent that the same, or whereby the same, may destroy or inflict grievous bodily harm upon a trespasser, or other person coming in contact therewith, shall be guilty of a misdemeanor; but the setting of any gun or trap, such as is usually set with intent to destroy vermin, is not to be thereby rendered illegal; nor the setting of a spring-gun, man-trap, or other engine in a dwelling-house, for the protection thereof in the night-time(o).

The setting dog-spears on land is not in itself an illegal act, nor is it rendered such by the above Act, if it appears that the dog-spears were set in a wood for the mere purpose of destroying dogs trespassing in pursuit of game, and not with intent to destroy human life, or inflict grievous bodily harm on any human being. The owner of a dog, therefore, passing with his dog through a wood, has no right of action against the owner of the wood for the death of, or for an injury to, his dog, who, by reason of his own natural instinct, and against the will of his master, runs off the path against one of the dog-spears, and is killed or injured(p). 227 Injuries to animals from dog-traps.-Every man must be taken to contemplate the probable consequences of the act he does, and, therefore where the defendant caused traps scented with the strongest meats to be placed on his own land, so near to the plaintiff's house as to influence the instinct of the plaintiff's dogs and cats, and draw them irresistibly to their destruction, it was held that the defendant was responsible to the plaintiff for the injuries he sustained, although he had no intention of injuring the plaintiff, and meant only to catch foxes and vermin. It was held also, that the defendant would be responsible for injuries sustained by any dogs tempted from the highway, or a public path, to the traps on the defendant's land, as he had no right to invite them there for the purpose of destroying them(q).

228 Injuries from unguarded wells, mining-shafts, areas, and cellars.— Where the surface of land is in the possession of one man, and the

(0) See Bird v. Hollrook, 4 Bing. 628; Deane v. Clayton, 7 Taunt. 489; Ilott v. Wilkes, 3 B. & Ad. 304; State v. Moore, 31 Conn. 479.

(p) Jordin v. Crump, 8 M. & W. 787.
(g) Townsend v. Wathen, 9 East, 277.

subsoil and minerals in the possession of another, and the mineral owner sinks a mining shaft to enable him to work the minerals, it is his duty to fence the shaft so as to prevent injury to the cattle and sheep depasturing upon the surface(r). If a man hires a meadow, and turns his cattle therein, and they fall down the disused shaft of a mine, the person to whom the shaft belongs, and who has the dominion and control over it, will be responsible for the damage done(s). Every occupier of land who allows wells or mining-shafts to remain on his land unguarded and unprotected, is responsible in damages to all persons who sustain injury from falling into them, provided they were lawfully traversing the land on which the shaft or well existed, and fell into it without any negligence or misconduct on their part; but if they were at the time trespassers on the land, and the well or shaft was more than twenty-five yards from a public carriage-way (post, p. 171), they will not be entitled to maintain an action(t). Where the defendants were owners of waste land which was bounded by two highways, and the defendants worked a quarry in the waste, and the plaintiff, not knowing of the quarry, passed over the waste in the dark and fell into the quarry and broke his leg, and then brought an action for damages, it was held that the action could not be maintained, as there was no legal obligation on the defendant to fence the quarry for the benefit of the plaintiff, who was a mere trespasser upon the land(u). But if the hole is so near a highway that a person lawfully using it may, if he slips on the highway, fall into the hole, the occupier will be liable(v), even though the obligation to fence may be on some other person(x).

If a man gets upon strange premises when it is dark, so that he cannot see, he should keep a good look-out, and has only himself to blame if he sustains injuries from running against objects, or falling down places, which might have been avoided by the exercise of ordinary care and caution(y); but if a person, being upon the premises of another on lawful business, without any fault or negligence of his own falls through a hole on such premises, the occupier will be respon

(r) Williams v. Groucott, 4 B. & S. 149.

(s) Sybray v. White, 1 M. & W. 435.

'() Hardcastle v. South York, etc., Rail. Co., 4 H. & N. 67; 28 Law J., Exch. 139. Bishop v. Trustees of Bedford Charity, 1 Ell. & Ell. 697. Pickard v. Smith, 10 C. B., N. S. 470.

(u) Hounsell v. Smyth, 7 C. B., N. S. 731; 29 Law J., C. P. 203. Binks v. South York & River Dun Co., 32 Law J., Q. B. 26; 3 B. & S. 244.

(v) Hadley v. Taylor, L. R., 1 C. P. 53. As to who is an occupier, see S. C. Vale v. Bliss, 50 Barb. 358.

(x) Wettor v. Dunk, 4 F. & F. 298. Norwich v. Breed, 30 Conn. 535.

(y) Wilkinson v. Fairrie, 32 Law J., Ex. 173.

sible, although the hole be necessary for carrying on the business of the occupier, and there is no duty upon such occupier as between himself and his servants to keep the hole fenced(z).

Every occupier of a house adjoining a highway is responsible for injuries to passengers arising from things falling from the house into the street, unless he can show that the fall arose from storm or tempest, or some inevitable accident(a). He is bound also to secure his shutters, and swing-doors, and things placed against his house, so that they cannot be readily thrown down on passengers by idle or mischievous persons. Thus, where the cellar-door of a tradesman was opened and thrown back against his house, and some little boys playing with the door threw it over upon the plaintiff and broke his leg, it was held that the tradesman was responsible for the injury, as he had provided no fastening to keep the door back. "A tradesman under such circumstances is not bound to adopt the strictest means for preventing accidents, but he is bound to use reasonable precaution, such as might be expected from a careful man"(b). But if the door is a door of great weight, and so thrown back that it could not be pushed forward into the street without the exercise of great force and strength, the remedy would be against the wilful wrong-doer and not against the tradesman, who reasonably supposed a fastening to be, under such circumstances, unnecessary (bb). Whether proper care has been taken to prevent the door from falling forward is a question for the jury.

229 Injuries from, the dangerous state of private ways.-If landowners have given an express or implied permission to strangers to use a private way leading across their lands, or if they suffer a particular pathway to be used as an ordinary means of access to their dwellinghouses, it is not competent to them to do any act whereby injury may arise to persons using the way, without giving them timely notice of what has been done, or revoking the license or permission to come

(z) Indermaur v. Dames, L. R., 1 C. P. 274; 2 ibid. 311.

(a) Bryne v. Boadle, 33 Law J., Exch. 13. Domat. liv. 2, tit. 8, ss. 1, 10, 11. See Scott v. London Dock Co., 34 L. J., Exch. 17; ibid. 220. But see Welfare v. Brighton Rail., L. R., 4 Q. B. 693; 38 L. J., Q. B. 241. Salisbury v. Herchenroder, 106 Mass. 458. And where a building is so constructed that the snow and ice falling or forming on the roof must, in the natural course of things, fall down upon the sidewalk of a public street, the owner will be liable for injuries to passengers sustained thereby, although the rooms in the building are occupied by tenants, if he has access to and control of the roof. Shipley v. Fifty Associates,

106 Mass. 194.

(b) Tindal, C. J., Daniels v. Potter, 4 C. & P. 262. Proctor v. Harris, ib. 337.

(bb) But the rule stated in the text would not apply if the maintenance of the cellar-door was in itself a direct invasion of the highway, and a wrongful act. See Congreve v. Morgan, 18 N. Y. 84.

upon the land. And as the owners themselves are not justified in placing any unknown dangers in the way of persons using the private way, so neither can they authorize anybody else to do so(c). If the landowner takes toll for the use of the way, and invites people to use it, it is his duty to keep it in a safe state, and fit for use; and if he is cognizant of some hidden danger, he ought to remove it, or close the way to the public(d). Every occupier of a house who makes or permits the continuance or use of a pathway to the house, may fairly be deemed to hold out an invitation to all persons who have any reasonable ground for coming to the house to pass along his pathway; and he is responsible for neglecting to fence off dangerous places, in the same way that a shopkeeper, who invites the public to his shop, is liable for leaving a trap-door open without any protection, by which his customers suffer injury (e). But a person who strays from the ordinary approaches to the house, and trespasses upon the adjoining land, where there is no path, has no remedy for an injury he may sustain from falling into unguarded wells or pits, as the injury is the result of his own carelessness and misconduct(f). If A gives B permission to cross his yard, across which there are a dozen different routes, and A has dug a hole in the yard which he usually keeps covered, but one night he uncovers it, and B, crossing as usual, and not expecting any danger, falls in and is injured, A is liable for the injury. But if the hole has always been uncovered, and B walks into it in broad daylight, he has no cause of action against A(g).

230 Nuisances adjoining highways-Dangerous pits and excavations-Steamengines and windmills.-By the General Highway Act, 5 & 6 Wm. 4, c. 4, s. 70, it is enacted, that it shall not be lawful for any person to sink any pit or shaft, or to erect or cause to be erected any steam-engine, gin, or other like machine, or any machinery attached thereto, within the distance of twenty-five yards, nor any windmill within fifty yards from any part of any carriage-way or cart-way(h), unless

(c) Corby v. Hill, 4 C. B., N. S. 556; 27 Law J., C. P. 320. Gallagher v. Humphrey, 10 W. R. 664; 6 L. T. R., N. S. 684: Cockburn, C.J., Hodman v. West Midl. Rail. Co., 33 L. J., Q. B. 240. See post, p. 173.

(d) Gibbs v. Trustees of Liv. Docks, 3 H. & N. 164; 27 Law J., Exch. 321. (e) Tindal, C.J., Lancaster Canal Co. v. Parnaby, 11 Ad. & E. 243. Barnes v. Ward, 9 C. B. 420; 19 Law J., C. P. 200. Jarvis v. Dean, 11 Moore, 354. Indermaur v. Dames, ante, p. 202. (f) Wilde, B., Bolch v. Smith, 7 H. & N. 736; 31 Law J., Exch. 203. See Howland v. Vincent, 10 Metc. 371.

(g) Blythe v. Topham, 1 Roll. Abr. 88; Cro. Jac. 158. castle v. South Yorkshire Rwy., etc., 4 H. & N. 74.

Stone v. Jackson, 16 C. B. 204. HardGaudret v. Egerton, L. R., 2 C. P. 371.

(h) This is extended to turnpike roads by 27 and 28 Vict. c. 75. Steam-ploughing machines are excepted by 28 & 29 Vict. c. 83, s. 6 (continued by 34 & 35 Vict. c. 95), provided certain precautions are taken while they are in use. Ibid. Independent of any statute a person may be

such pit, or shaft, or steam-engine, gin, or other like engine or machinery, shall be within some house or other building, or behind some wall or fence, sufficient to conceal or screen the same from the said carriage-way or cart-way, so that the same may not be dangerous to passengers, horses, or cattle(i); also, that it shall not be lawful for any person to make or cause to be made any fire for calcining or burning of ironstone, limestone, bricks, or clay, or the making of coke, within fifteen yards from any part of the said carriage-way or cart-way, unless the same shall be within some house or other building; or behind some wall or fence sufficient to screen the same from such carriageway or cart-way. Penalties are imposed upon persons offending against the statute for each and every day that any such pit, shaft, wind-mill, steam-engine, gin, machine, or fire, shall be permitted to continue contrary to the provisions of the Act.

Penalties are also imposed (s. 72) upon persons playing at games on highways, to the annoyance of passengers, or making fires (k), or letting off fireworks, pistols or guns, within fifty feet of the centre of the way, or laying things on the highway, to the interruption of persons travelling thereon, or suffering filth or any offensive matter to flow upon the highway from the adjoining premises, or in any way wilfully. obstructing the passage of the highway. Provision is also made (s. 73) for the removal and abatement of all nuisances upon the highway(kk). 231 The use of locomotive steam-engines on highways is authorized by 24 & 25 Vict. c. 70, provided they are used (s. 13) so as not to create a nuisance(). This Act has been amended by the 28 & 29 Vict. c. 83, which prescribes the rules subject to which such locomotive engines may be used (s. 3), limits the speed at which they may travel (s. 4), and makes special regulations as to their passage through towns (s. 8). The last-mentioned Act (which is a temporary one) has been continued to the 1st September, 1872, and the end of the then next session by 34 & 35 Vict. c. 95.

232 Dangerous excavations adjoining highways.—As persons are prohibited

come liable for the improper use of machinery operated by steam within such a distance of the highway as to endanger the lives or property of others lawfully using the way. Thus a person who erects upon his own land, but within fifty feet of the highway, a steam whistle of such size and construction as to produce a startling and terrific noise, and so uses the same as to frighten horses of ordinary gentleness when passing along the highway, will be liable for the resulting damages. Knight v. Goodyear's India Rubber Glove Manufacturing Co., 38 Conn. 438.

(i) As to nuisances from steam-threshing machines, see Smith v. Stokes, 4 B. & S. 84.
(k) See Stinson v. Browning, L. R., 1 C. P. 321.

(kk) See Simpson v. Wells, L. R., 7 Q. B. 214.

(1) Watkins v. Reddin, 2 F. & F. 269.