Onus of proving negligence usually on the plaintiff. Injuries caused by mere accident not actionable. Any negligence not enough. When neg be inferred from the mere fact of the occurrence. The plaintiff claims : (1) Sale of the said bonds. (2) Application of the proceeds in payment of his debt. Negligence (a). 1. Claim by Plaintiff for Personal Injuries and Damage to Carriage. 1. The plaintiff has suffered damage from personal injuries to the plaintiff, and damages to his carriage, caused by the (a) A person is liable for his or her own negligence, or for the negligence of a servant, causing actual injury or loss to another. But it is not enough that the plaintiff has been injured, and so injured by the act of the defendant. To found an action there must be negligence on the part of the defendant, directly bringing about the injury; and the onus of proving such negligence, except in a few cases where the law presumes it, lies on the plaintiff. Where the injury is the result of mere accident, no action lies; thus, where the coachman was driving in the middle of the road, and not on his own side, but there were no other coaches on the road, and the horses took fright and overturned the coach, this was held to afford no evidence of negligence (Wakeman v. Robinson, 1 Bing. 213); so where an injury was inflicted by a horse on which the defendant was riding, and there was no proof that he omitted to do anything in his power to prevent the accident, the plaintiff was nonsuited. (Hammack v. White, 11 C. B. N. S. 588; L. J. 31 C. P. 129: Manzoni v. Douglas, 50 L. J. Ch. 289; 6 C. P. Div. 145: Tillett v. Ward, 10 Q. B. Div. 17.) Any act of negligence on the part of the defendant is insufficient. The negligence must in some way connect itself or be connected by evidence with the accident." (Jackson v. The Metropolitan Ry. Co., 3 App. Cases, 193; 37 L. T. N. S. 670, per Lord Cairns.) "It is not sufficient to prove some act of negligence, unless it be proved that such negligence was the direct cause of the injury complained of." (Ibid.) The pleader is referred to the case cited-Jackson v. The Metropolitan Ry. Co.-as the most recent and most authoritative exposition of the law on this subject. It has been said that the onus lies on the plaintiff of proving negligence; but the accident may take place under such circumstances as to ligence may be prima facie evidence of negligence, for the happening of something that would not happen if ordinary skill and care were used is evidence of negligence (Gee v. Metropolitan Railway Co., L. R. 8 Q. B. 175, per Brett, J.), as where a collision takes place between two trains of the same company. (Skinner v. L. & Brighton Ry. Co., 5 Exch. 787.) So proof that a stage-coach broke down raises a presumption that the accident arose either from the unskilfulness of the driver or the insufficiency of the coach. (Christie v. Griggs, 2 Camp. 79.) So, where B., walking in a street in front of the house of a flour-dealer, was injured by a barrel of flour falling upon him from an upper window, it was held that the mere fact of the accident was evidence to go to the jury in an action against the flour-dealer. (Byrne v. Boadle, L. J. 33 Ex. 13. See also Scott v. London Dock Co., L. J. 34 Ex. 17, 220, Ex. Ch. ; Kearney v. L., Brighton, & S. C. Ry. Co., L. R. 6 Q. B. 759; White v. France, 2 C. P. Div. 308; 46 L. J. C. P. 823.) It is the absolute duty of an occupier of premises, defendant or his servant on the 15th of January, 1882, negligently driving a cart and horse in Fleet Street. 2. Particulars of expenses :Charge of Mr. Smith, surgeon Charge of Mr. Jones, coach-maker. £10 10 0 14 5 6 £24 15 6 The plaintiff claims £150 damages. having a lamp overhanging the footway to prevent its becoming dangerous to the public, and he cannot shift the liability arising from such duty from himself by having employed a competent person to repair it. (Tarry v. Ashton, 1 Q. B. D. 314; 45 L. J. Q. B. 260.) Although a person is liable for the act of a servant causing injury to another, such liability only exists where the negligence was committed at a time when the servant was going about his master's business, and acting, however injudiciously as it turns out in the event, as he thinks in the interest of his employer. It is long since the law was laid down that a master is not answerable for the wilful and malicious act of his servant. (M' Manus v. Crickett, 1 East, 106.) Thus, where the defendant's servant wantonly, and not for the purpose of executing his master's orders, strikes the plaintiff's horses, and thereby produces the accident, the master is not liable; but where the servant, in the course of his employment, and in order to extricate himself from a difficulty, so strikes them, although injudiciously, his master is liable. (Croft v. Alison, 4 B. & A. 590.) If the servant at the time of the accident is engaged on his own business, the master is not responsible, as in the case of Storey v. Ashton, L. R. 4 Q. B. 476. There the defendant's carman was directed to deliver the defendant's goods at a certain place, and the carman drove the defendant's cart with the goods in it in an opposite direction, in order that he might transact some business of his own, and it was held that the defendant was not liable for an injury done by the cart while it was being so driven by the carman. On the same principle, Stevens v. Woodward, 6 Q. B. Div. 318, was decided. But where a servant uses his own horse and gig on his master's business, and with his knowledge, the master is liable, though the servant may on the same occasion do business of his own. (Patten v. Rea, L. J. 26 C. P. 235.) A master is not liable for the wilful and malicious act of ser vant. tractors. Though a master is thus generally liable for the negligence of a servant, Liability he is not liable for the negligence of another who contracts with him to for condo a lawful work. Here the contractor alone is liable, and not his employer; but this rule does not extend to protect one who is himself bound to do a particular work, and who engages another to do it for him, or one who orders work to be done which may be injurious to his neighbour. See on this subject, Hughes v. Percival, 8 App. Cases; 443, affirming the principle of Bower v. Peate, 1 Q. B. Div. 321. In the recent case of Heaven v. Pender, 11 Q. B. D. 503, the defendant, a dock owner, supplied and put up a staging outside a ship in his dock under a contract with the shipowner. The plaintiff was a workman employed by a ship-painter who had contracted to paint the ship, and while he was engaged in so doing, the staging, owing to the negligent way in which it had been constructed by the defendant, gave way, and the plaintiff was injured. It was held by the Court of Appeal, reversing the Queen's Bench, that the plaintiff could recover against the defendant. In such a case it is at his risk if the contractor neglect the work or do it in an improper manner. Occupier primâ facie liable for injury caused by dilapidated premises. 2. Claim by Plaintiff for Personal Injuries caused by Negligence of Defendant. 1. The plaintiff has suffered damage from personal injuries to the plaintiff, caused by a lamp, which the defendant negli An occupier of land adjo'ning a meadow where cattle are pastured, who grows a tree likely to be eaten by cattle, and poisonous if eaten, must keep it within his own b undaries; and if he does not do so, he is prima facie liable for the death of the cattle caused by their browsing on branches which project beyond his boundaries. (Crewhurst v. Burial Board of Amersham, 4 Ex. Div. 5; 48 L. J. Ex. 109: Firth v. Bowling Green Co., 3 C. P. Div. 254; 47 L. J. C. P. 358, distinguishing Wilson v. Newberry, 41 L. J. Q. B. 31.) The question has often arisen where an accident was caused by premises being out of repair, whether the landlord or the occupier is liable. It may be said that primâ facie the latter is liable; but the landlord may also be responsible if it appears that he demised the premises in a dilapidated state, or that he was under a covenant with his tenant to do the very repairs, the want of which caused the mischief. The law on the point was discussed in the recent case of Nelson v. The Liverpool Brewery Co., 2 C. P. Div. 311; 46 L. J. C. P. 675. There the plaintiff was injured by a chimney-pot accidentally falling upon him from a house in the occupation of a tenant to the defendants. The defendants were under no contract with their tenant to repair, and the premises were not out of repair at the time they let them. It was held that the defendants were not liable to the plaintiff for the injury he had sustained. And it was also intimated that this ruling would not be altered by a custom amongst landlords to do external repairs in the absence of any express provision in the agreement for letting, since such a custom would not create an obligation to repair for the neglect of which they could be sued by their tenants. "We think there are only two ways in which landlords or owners can be made liable, in the case of an injury to a stranger, by the defective repair of premises let to a tenant, the occupier, and the occupier When land- alone, being prima facie liable-first in the case of a contract by the landlord to do repairs where the tenant can sue him for not repairing; secondly, in the case of a misfeasance by the landlord, as, for instance, where he lets premises in a ruinous condition. In either of these cases we think an action would lie against the owner; see Payne v. Rogers, 2 H. Black. 349: Todd v. Flight, 9 Com. B. Rep., N. S., 377; S. C. 30 Law J. Rep. C. P. 21: Russell v. Shenton, 3 Q. B. Rep. 449; S. C. 11 Law J. Rep. Q. B. 289: and Pretty v. Bickmore, Law Rep. 8 C. P. 401." (Per Lopes, J., in Nelson v. The Liverpool Brewery Co., supra.) lord liable. Negligence of fellowservants. It seems still open to doubt whether the relation between a cab proprietor and a cab driver is that of master and servant or bailor and bailee (see Powles v. Hider, 6 E. & B. 207; Venables v. Smith, 2 Q. B. Div. 279; King v. Spurr, 8 Q. B. Div. 104); but it seems that the proprietor is liable to the driver if he do not take reasonable precautions to provide a horse fit for the purpose, and injury is thereby caused to the driver. (Fowler v. Lock, 43 L. J. C. P. 394.) Apart from a statutory liability to be presently mentioned, a master is not liable for injuries to a servant caused by the negligence of a fellowservant in the same kind of employment (Priestley v. Fowler, 3 M. & W. 1); and on the same principle he is not liable to a stranger who volunteers his assistance to a servant. (Degg v. Midland Ry. Co., 1 H. & N. 773; L. J. 26 Ex. 171.) But where the consignce of goods assisted the servants of the railway company, and while so doing was injured by gently kept outside his shop, overhanging the footway in Fleet Street, falling upon the plaintiff as he was passing along the said street. 2. Particulars of expense :Charges of Mr. Jones, surgeon The plaintiff claims £200 damages. £20 0 0 their negligence, held that the company were liable. (Wright v. L. & W. N. Ry. Co., 1 Q. B. D. 152; 45 L. J. 570.) It must be carefully noted Servants that it is not enough to free a master from liability that the servant must be injured and the servant causing the injury are both in his service; they engaged in must both be engaged in a common employment at the time of the acci- a common dent; and in these cases there has frequently been a great dispute as to employwhat constitutes a common employment. The pleader is referred for ment. information on this head to Vose v. Lancashire Ry. Co., L. J. 27 Ex. 249 ; Waller v. S. E. Ry. Co., L. J. 32 Ex. 205; Morgan v. Vale of Neath Ry. Co., L. R. 1 Q. B. 149; Lavel v. Howell, 45 L. J. 387; Swainson v. N. E. Ry. Co., 38 L. T. N. S. 201. Though not liable to a servant for the negligence of another servant, a master is liable to his servant for his own personal negligence, and also for the negligence of one who may be regarded as the vice-principal or representative of the master. (Murphy v. Smith, 19 C. B. N. S. 361.) In Mellors v. Shaw, L. J. 30 Q. B. 333, the plaintiff was injured by the negligence of one of two defendants, who was the manager of a mine, and personally superintended it. The Court decided that the other defendant was liable too. If the master fails to exercise due care and caution in the selection of his servants, and another servant is injured through the incompetency of one carelessly selected, the master is liable for personal negligence. (Turrant v. Webb, 18 C. B. 787; L. J. 25 C. P. 261.) A master is bound to take reasonable precautions to secure the safety of his workmen. Thus if he provide bad timber for a scaffold (Roberts v. Smith, 2 H. & N. 213), or if he knowingly allow the servant to use an unsafe and unprotected machine (Watling v. Oastler, L. R. 6 Ex. 73), the master may be liable. It has been decided that a pilot whom a shipowner is compelled to employ, is not the servant of the shipowner so as to disentitle the pilot from recovering damages for an injury caused by the negligence of the crew. (Smith v. Steele, 44 L. J. Q. B. 60.) A master liable to a servant per for his sonal negli gence. What constitutes personal negligence in a master. Now, by the Employers' Liability Act, 1880 (43 & 44 Vict. c. 42), where Employers' any personal injury is caused to a workman by reason of any defect in Liability the condition of the machinery, or by the negligence of any person Act, 1880. employed by the defendant who had superintendence entrusted to him, or by reason of negligence of any person to whose orders the workman was obliged to conform, or by reason of any act done in obedience to bye-laws of the employment on which the workman was, or by reason of the negligence of anyone who has the charge or control of any signal, points, locomotive engine or train upon a railway-in such cases the workman, or when he is killed, his personal representative, shall have the same right of compensation against the employer" as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work." (Sec. 1.) No workman, or his representative, can recover more than an equivalent to three years' wages. (Sec. 3.) He must give notice of the injury within six weeks, and such notice must be in writing (Keen v. Millwall Dock Co., 8 Q. B. D. 482), though it need not be expressed in strictly technical language. (Stone v. Hyde, 9 Q. B. Div. Liability 3. Claim against a Landlord for Personal Injuries caused to the Plaintiff by the Dilapidated Slate of the Demised Premises. 1. In October, 1879, the defendant demised a house and shop in B. Street, Liverpool, to one A. B., in a dilapidated and ruinous state. Employers' 76.) And the action must be brought within six months in case of accident, and in the event of death within twelve months of the death. (Sec. 4.) Every action under this Act must, in the first instance, be brought in the County Court, but there is a power under sec. 6 to move the proceedings into the High Court. In Munday v. The Thames Ironworks & Shipbuilding Co., 10 Q. B. Div. 59), it was intimated that the power of removal ought only to be exercised in exceptional cases. Griffiths v. The Earl of Dudley, 9 Q. B. Div. 357, it was decided that it is competent for a workman to contract with his employer not to claim compensation under the Act, and in that case if he is killed and his widow sues for damages under Lord Campbell's Act she will be nonsuited. Contributory negli gence. How far a child can Defences. In Contributory Negligence. - This is a very common and important defence. The law is now well settled that even though there has been negligence in the defendant, yet if the immediate and proximate cause of the injury was the unskilfulness or negligence of the plaintiff, he cannot recover. Thus, if a person were to cross a line of rail from one platform of a station to another, when another means of crossing was provided, and a train coming into the station at an unusual and improper speed were to run over and injure him, in such a case there would be negligence on the part of the railway company, but there would also be such contributory negligence in the plaintiff as would probably disentitle him from recovering. The rule preventing the plaintiff from recovering when he has been guilty of contributory negligence is, however, subject to this limitation, that if the defendant, by the exercise of ordinary care on his part, might have avoided the consequences of the plaintiff's negligence, and yet does not choose to exercise such care, the plaintiff may still recover. (See Radley v. L. & N. W. Ry. Co., 1 App. Cases, 754; 46 L. J. H. L. 573.) This doctrine is well illustrated by the case of Davies v. Mann (10 M. & W. 546), known as the "Donkey case." Here the plaintiff had improperly left an ass with its forelegs tied together lying on the high-road. The defendant driving by, saw the donkey, and might easily, by the exercise of ordinary care, have passed by without injuring it, but instead of this he drove recklessly on and over the donkey; and for this act he was held liable in damages to its owner. It is plain here that there was contributory negligence in the plaintiff--the owner of the donkey; but it was an act of negligence the consequences of which the defendant might easily have avoided, and on that ground he was held responsible. After all, this rule with respect to contributory negligence and its limitation would seem to come to little more than the doctrine laid down, not for the first time, in Jackson v. The Metropolitan Ry. Co. (3 Appeal Cases. 193; 37 L. T. N. S. 679), that the defendant has a right to require proof that the negligence on which the plaintiff relies was the direct and immediate cause of the injury. The question has frequently arisen how far a child of tender years can |