Where there are two modes of doing a work in a public highway, from which damage may result to a passer-by, the one mode more dangerous than the other, though both are usual modes, it is for the jury to say whether the adoption of the former mode amounts, under all the circumstances, to negligence. Cleveland v. Spier, 16 C. B. (N. s.) 399.

Injury in Avoiding Obstruction.]—The defendants placed an obstruction across the footway during the hours prohibited by the Metropolitan Police and Metropolitan Streets Acts, so that foot passengers were obliged either to get over the obstruction or to go round vans stationed in the roadway, or to wait until the obstruction was removed. The obstruction was very slippery, and in attempting to get over the obstruction the plaintiff sustained serious injuries. In an action for damages :-Held, that it was for the jury to decide what was the proper course for the plaintiff to have adopted under all the circumstances, and to say whether or not his attempt to get over the obstruction was the act of a reasonable and prudent man; for if the inconvenience is so great that it is reasonable to get rid of it by an act not obviously dangerous, and executed without carelessness, the person causing the inconvenience by his negligence is liable for any injury that may result from an attempt to avoid such inconvenience. Dictum of Brett, J., in Adams v. L. & Y. Ry. (L. R. 4 C. P. 739) approved. Lee v. Nixey, 63 L. T. 285; 54 J. P. 807.

Improperly leaving Plough and Van by side of Highway.]-A house-van attached to a steam plough was left for the night on the grassy side of a highway by the defendant. The van and plough were four or five feet from the metalled part of the way. During the evening the plaintiff's testator drove his mare in a cart along the metalled road. The mare was a kicker, but he was unaware of her vice. Passing the van she shied at it, kicked, and galloped kicking for 140 yards, then got her leg over the shaft, fell, and kicked her driver as he rolled out of the cart. He afterwards died from the kick so received. In an action under Lord Campbell's Act, by his executors for wrongful and negligent obstruction of the highway, the jury found that the van was left where it stood unreasonably and negligently, and caused some appreciable danger to vehicles passing along the metalled parts of the road; that the death was occasioned by the van standing where it did, and by the inherent vice of the mare combined, and that there was no contributory negligence :-Held, that on these findings the verdict and judgment must be for the plaintiff; for the unauthorised, unreasonable, and dangerous user of the highway by the defendant was the proximate cause of the injury. Harris v. Mobbs, 3 Ex. D. 268; 39 L. T. 164; 27 W. R. 154. S. P., Wilkins v. Day, 12 Q. B. D. 110; 49 L. T. 399; 32 W. R. 123; 48 J. P. 6.

Cellar-flap and Gratings.]—A tradesman who has a flap-door in the foot pavement of the street opening into a cellar underneath his house, is bound, when he uses it, to conduct his business with such a degree of care as will prevent a reasonable person, acting himself with an ordinary

VOL. X.

Proctor v. Harris, 4 Car. & P. 337.

He is also bound to take reasonable care that the flap is so placed and secured, as that, under ordinary circumstances, it will not fall down; but if the tradesman has so placed and secured it, and a wrongdoer throws it over, the tradesman will not be liable for any injury occasioned by it. Daniels v. Potter, 4 Čar. & P. 262. And see Pickard v. Smith, 10 C. B., (N.S.) 470; 4 L. T. 470.

In an action for an injury to the wife of the plaintiff through the negligence of the defendant in leaving an open vault or cellar on his own premises unfenced, whereby she fell in and was injured, the evidence was that persons were in the habit of going across the spot where the vault was for the purpose of making a short cut from a street to the main road, by avoiding an angle, but that the owner of the premises as often as he saw them turned them back :-Held, that he was not liable. Stone v. Jackson, 16 C. B. 199.

Duty of Occupier or Tenant.] - The defendants were the temporary occupiers of a warehouse, and within fourteen inches of a highway was an unfenced hoist hole, part of the premises, into which a party, in passing along the highway, accidentally fell and was injured: -Held, that the defendants were liable for the injury. Hadley v. Taylor, L. R. 1 C. P. 53; 11 Jur. (N.S.) 979; 13 L. T. 368; 14 W. R. 59.

In 1830, houses were erected on land adjoining a new road constructed at a high level as an approach to a new bridge across the Thames. Between these houses and this road was a space which was covered over (as a means of access to the houses) by a flagging, in which were gratings to let light and air to the lower part of the buildings, which formed separate tenements, the entrance to which was upon the lower level at the rear. The space so covered had become, by dedication prior to the 5 & 6 Will. 4, c. 50, a part of the public footway, and was used as such by the public. In 1862, in consequence of a large number of persons congregating upon the spot, the flagging and grating in front of one of the houses (having become weakened by user) gave way, and several persons were precipitated into the area below (a depth of about thirty feet), and one of them was killed:-Held, in an action by his widow, under Lord Campbell's Act, that, there being under the circumstances no legal liability on the part of the lessee of the houses to keep the surface of this way in repair, the action was not maintainable, the gulf at the side of the causeway being the result of the road being raised by the makers of it, not by the land at the sde being excavated by the proprietors of it; and that the artificial character of the flagging and grating did not make it more or less a way to be repaired by the parish. Robbins v. Jones, 15 C. B. (N.S.) 221; 33 L. J., C. P. 1; 10 Jur. (N.S.) 239; 9 L. T. 523; 12 W. R. 248.

It is universally the duty of an occupier of a house, having an area fronting the public street, so to fence it as to make it safe for passengers, and it is no defence to an action against him, for neglecting to do so, whereby a person fell down into the area and was hurt, that when he took possession of the house, and as long back as could be remembered, the area was in the same open state as when the accident happened.

3

Coupland v. Hardingham, 3 Camp. 398; 14 R. R. 764.

Duty to Fence-Diversion of Highway.]-A duty is cast upon those who, in the exercise of statutory powers, divert a public footpath, to protect, by fencing or otherwise, reasonably careful persons using the footpath from injury through going astray at the point of diversion. Hirst v. Taylor, 54 L. J., Q. B. 310; 14 Q. B. D. 918; 33 W. R. 582; 49 J. P. 359.

Liability of Landlord or Tenant.]-If the owner of a house is bound to repair it, he, and not the occupier, is liable to an action for an injury sustained by a stranger from the want of repair. Payne v. Rogers, 2 H. Bl. 349; 3 R. R. 415.

Quarry.]-The plaintiff was in the occupation of the surface of a field, and the defendants were in the occupation of a quarry in the same field. Both held under the same landlord. The quarry was entirely unfenced. One of the plaintiff's bullocks fell into the quarry and was killed-Held, that the plaintiff was entitled to recover damages from the defendants for the loss of his bullock. Hawken v. Shearer, 56 L. J., Q. B. 284.

Where owners of some waste land, which was bounded by two highways, and in which there was a quarry, worked it by their licensees, and the plaintiff, not knowing of the quarry, passed over the waste in the dark to get from one road to the other, and fell into the quarry :-Held, that no duty was cast upon the owners to fence, as the digging the quarry did not amount to a public nuisance. Hounsell v. Smyth, 7 C. B. (N.S.) 731; 29 L. J., C. P. 203; 6 Jur. (N.s.) 897; 1 L. T. 440; 8 W. R. 277.

Dangerous Machinery.]-A company for the manufacture of cotton employed a servant to grease the bearings between the flywheel and the spur-wheel of a steam engine in their factory. The fly-wheel revolved in a wheel race parallel to a wall and on one side of it, and the spur-wheel revolved parallel on the other side. The extreme distance between the two wheels was two feet ten inches, and the wall was two feet three inches thick. In a hole made in this wall the servant stood or sat while he greased the bearings. The wheel race was one which ought to have been fenced or otherwise secured within 7 & 8 Vict. c. 15, s. 21 (repealed). The fly-wheel on the side next the wall and the edge of the wheel race on that side were not fenced. The servant, having been at this work for five days, was found on the sixth lying dead on the bearings, and it was not disputed that he must have been caught and killed by the fly-wheel. His administratrix having brought an action, on behalf of herself and child, against the company for negligence in not fencing the wheel race as required by the statute-Held, assuming that the deceased was not guilty of contributory negligence, either in undertaking the employment or conducting it, that the action was maintainable. Britton v. Great Western Cotton Co., 41 L. J., Ex. 99; L. R. 7 Ex. 130; 27 L. T. 125; 20 W. R. 525.

landlord to that effect, and therefore the owner is liable for personal injury caused by the want of repair. Miller v. Hancock, [1893] 2 Q. B. 177; 4 R. 478; 69 L. T. 214; 41 W. R. 578; 57 J. P. 758-C. A.

Apart from contract, there is no duty upon the owner of an unfurnished house as between him and his tenant to see that the house is let to the tenant in a safe condition at the commencement of the term, and if the tenant, or the customer or guest of the tenant, suffer injury during the term by reason of the unsafe condition of the house, no action for negligence will lie against the owner. Lane v. Cox, 66 L. J., Q. B. 193; [1897] 1 Q. B. 415; 76 L. T. 135; 45 W. R. 261 -C. A.

The plaintiff, a boy of four years of age, accompanied his sister, who was going on business to the defendant's house. A flight of steps, protected on each side by railings, led up to the front door. One of these railings had been for some time displaced, leaving a gap of eighteen inches between the rails on either side of it. Across this gap rope had been interlaced, but had worn away and had not been renewed. The sister had frequently been to the house, and had shortly before noticed that the rail was missing. On the day in question the sister went up the steps, but the plaintiff in following fell through the gap and was injured-Held, that the plaintiff could maintain no action against the defendant for the injury he had sustained, as the only duty on the part of the defendant towards him was to take care that there was no concealed danger, and of this there was no evidence. Burchell v. Hickisson, 50 L. J., Q. B. 101.

The defendant was the landlord of a house which was let out in apartments to several tenants, each of whom had the privilege of using the roof (which was flat and covered with lead, having an iron rail on its outer edge), for the purpose of drying their linen; the access to the roof being by means of a low door at the stairhead about two feet from the rail. The plaintiff, the occupier of one of the rooms, went upon the roof for the purpose of removing some linen, when, his foot slipping, and the rail being out of repair (and known by the landlord to be so), he fell through to the court-yard below, and was injured :-Held, that the mere licence to the lodgers to use the roof as a drying-ground im posed no duty upon the defendant to fence it or to keep the fence in repair. Itay v. Hedges, 9 Q. B. D. 80.

Liability of Landlord to Sub-Tenant.]—Where a landlord is under no liability to his tenant to repair the premises, and a sub-tenant as to part of the premises receives personal injuries owing to the defective state of the premises, the landlord is under no liability

Occupier of Premises-Persons not invited.] -There is no duty on the part of the occupier of premises to render them secure for persons using them without invitation for their own gratification. Jewson v. Gatti, 1 Cab. & E. 564.

Liability of Landlord to Passer-by.] The plaintiff was injured through a defect in the condition of a coal-plate in the pavement in front of a house let by the defendant on a weekly tenancy, and such defect, though not shown to have been in existence at the commencement of the tenancy, had existed for nearly two years before the accident :-Held, that, having regard to the nature of the tenancy, there had been a re-letting of the premises after the nuisance was created, and that the defendant, as reversioner, was liable. Gandy v. Jubber (5 B. & S. 78; 9 Ib. 15) discussed. Sandford v. Clarke, 57 L. J., Q. B. 507; 21 Q. B. D. 398; 59 L. T. 226; 37 W. R. 28; 52 J. P. 773.

A. was injured by the giving way of a grating in a public footway, which was used for a coal shoot and for letting light into the lower part of premises adjoining. These premises were at the time of the accident under lease to B., who covenanted to repair and keep in repair all except the roofs, main walls, and main timbers. At the time of the demise the grating was unsafe; but there was no evidence that the landlady had any knowledge of its unsafe state; and the jury found that no blame was attributable to her for not knowing it :-Held, that no action was maintainable against the landlady. Gwinnell v. Eamer, L. R. 10 C. P. 658; 32 L. T. 835.

The owner of a messuage and premises, attached to which was an area, let the same to a tenant from year to year, and died; having devised the property, with an iron grating over the area improperly constructed and out of repair, so as to amount to a nuisance. The defendant, having no notice of the nuisance, suffered the tenant to remain in occupation of the premises upon the same terms as before, receiving rent. The wife of A. having sustained damage by reason of the dangerous condition of the grating-Held, that the defendant, as reversioner, was liable to an action for the damage thereby occasioned. Gandy v. Jubber, 5 B. & S. 78; 33 L. J., Q. B. 151; 10 Jur. (N.S.) 652; 9 L. T. 800; 12 W. R. 526. See S. C., 9 B. & S. 15; 13 W. R. 1022-Ex. Ch.

Where a reversioner of some premises, the chimneys of which were ruinous and in danger of falling, demised them to B., and after the demise they fell upon the buildings of his neighbour and damaged them :-Held, that as he knew when he let the premises that the chimneys were ruinous and in danger of falling, he was guilty of the wrongful non-repair, and consequently was liable for the damages sustained by the plaintiff. Todd v. Flight, 9 C. B. (N.S.) 377; 30 L. J., C. P. 21; 7 Jur. (N.S.) 291 ; 3 L. T. 325; 9 W. R. 145.

Evidence of Possession of Premises.]-Action for obstructing a wharf of which the plaintiff was possessed. The plaintiff having proved sixty years' general user, the defendant proved, that, thirty years before the trial, the parties through whom the plaintiff claimed accepted a lease of

the land in question, as the same had been theretofore used by the lessees, as a sawpit and for laying timber:-Held, that the jury might, nevertheless, from the general user, infer that the plaintiff was possessed of the land absolutely at the time referred to in the pleadings. Page v. Hatchett, 8 Q. B. 593; 15 L. J., Q. B. 281; 10 Jur. 634.

In an action, the plaintiff declared that he was possessed of a messuage and premises, with the appurtenances; the plea traversed this allegation, and at the trial it appeared that the plaintiff had the separate use and occupation of only one floor of a dwelling-house-Held, that the evidence did not negative the allegation that the plaintiff was possessed of a messuage. Fenn v. Grafton, 2 Bing. (N.C.) 617; 3 Scott, 56; 2 Hodges, 58.

In an action for an injury resulting from falling down an unprotected area, the declaration stated that the defendant was possessed of the premises, and that they were adjoining a public and common street and highway. The defendant had agreed with the owner of the premises (two carcases of houses) to finish one of them, for doing which he was to have the other; and the workmen employed by him were then actually at work upon them, but it did not appear that any conveyance had been made to him :-Held, that it was sufficient evidence of a possession in him. Jarvis v. Dean, 11 Moore, 354; 3 Bing. 447; 4 L. J. (0.8.) C. P. 144.

The defendants, being the owners of a house and premises, demised the same on the 1st of April, 1853, to M. for thirty years, at a rent payable quarterly, with a right of re-entry if the rent should at any time be in arrear more than fifteen days. M. occupied the first floor for some time, and let out the rest of the house to separate weekly lodgers, each of whom had a right to draw water from the tank in the area, and to use the area for the purpose of doing so. In March, 1856, M. let the first floor to T., a weekly lodger, and then ceased to reside in the house, never paying the quarterly rent due at Lady-day, 1858, or at Midsummer, and both were in arrear at the time the action was brought. T. had the same privilege of using the area and tank as the other lodgers. In July, M. became insolvent, and about the 25th of that month he gave up the lease to the official assignee, and was discharged upon the 30th. In the same month, the defendants gave notice to the lodgers that the rent must be paid to them, and two of the lodgers did so pay the rent. Upon the 4th of August, the plaintiff suffered an injury by falling through a grating in an area belonging to the house, and being part of the premises so let with the house. A few days after the accident to the plaintiff, viz., on or about the 7th of August, T., who was the tenant of the first floor, received a notice from the inspector of nuisances to repair the grating in front of the house; this notice was immediately handed by him to the defendants, and they repaired the grating. In November, the defendants called upon the assignees to elect whether they would take the lease or not, and upon their refusal to take it, the defendants took possession of it, and of the house and premises. It was admitted that the injury to the plaintiff was occasioned by the negligence of some persons or persons in not keeping the grating in repair :-Held, that there was no evidence that the defendants, before the time of the