breach of duty on their part. Gautret v. Egerton, 36 L. J., C. P. 191; L. R. 2 C. P. 371; 16 L. T. 17; 15 W. R. 638.

navigated on the Thames, the plaintiff, a waterman, complained to the man in charge, who referred him to R., the defendant's foreman; the plaintiff went to the defendant's wharf in order to speak to R., and whilst he was there a bale of goods, by the negligence of the defendant's serplaintiff had had no warning that the bale might fall:-Held, that the plaintiff was entitled to maintain an action for the injury sustained by him. White v. France, 46 L. J., C. P. 823; 2 C. P. D. 308; 25 W. R. 878.

A railway porter was standing, in broad daylight, upon a plank thrown across a footbridge, connecting two platforms at a railway station, cleaning a lamp, when the plaintiff, accompany-vants, fell upon him and injured him; the ing her daughter to a train, struck her head against the plank and was injured :-Held, that the plaintiff was not a mere licensee. Watkins v. G. W. Ry., 46 L. J., C. P. 817; 37 L. T. 193; 25 W. R. 905.

Duty towards Licensee-Runaway Horse and Cart - Plaintiff injured while on Defendant's Premises.]-The defendant's horse, by the negli gence of the defendant's servant, ran away with a cart, and turned from a highway into the yard of the defendant's house, which opened on to the highway. The plaintiff's wife, who happened to be paying a visit at the defendant's house, ran out into the yard to see what was the matter, when she was met and knocked down by the horse and cart, receiving serious injuries :—Held, that under the circumstances there was no duty on the part of the defendant to use ordinary care towards the plaintiff's wife, and that the action was, therefore, not maintainable. Tolhausen v. Davies, 57 L. J., Q. B. 392; 59 L. T. 436; 52 J. P. 804. Affirmed, 58 L. J., Q. B. 98— C. A.

The deceased was employed by a builder to watch and protect certain unfinished buildings. Workmen were employed by the defendant, a contractor, on the land near to where the deceased was on duty, to excavate the earth for the foundations of other buildings. In the performance of this operation they employed a steam-crane and winch to which were attached a chain and iron bucket, by means of which the earth was raised from the excavation and thence to the carts which were to carry it away. The deceased had nothing to do with the excavations, but was standing where he need not have been, watching the defendant's men at work, and allowing the bucket to pass some three feet over his head, when the chain broke and the bucket and its contents falling upon him so injured him that he subsequently died-Held, that there was no evidence of negligence in the defendant's workmen; that the deceased was at the most a bare licensee; and that he stood where he did Risks incident to Position.] - The desubject to all the risks incident to the position ceased was employed by a builder to watch and in which he had placed himself. Batchelor v. protect certain unfinished buildings. Workmen Fortescue, 11 Q. B. D. 474; 49 L. T. 644-C. A. were employed by the defendant, a contractor, The defendants, trustees of the Bridgwater on the land near to where the deceased was on canal for hire and reward, by permitting barge-duty, to excavate the earth for the foundations men to moor their barges at certain mooring places on the canal, are bound to keep the whole of the premises, and all the ways to the canal over which the bargemen pass to and from their boats, in good repair. Shoebottom v. Egerton, 18 L. T. 364.

A canal company invite persons navigating the canal to go over a certain bridge, in the same way and sense that a shopkeeper invites the public to enter his shop, and they are bound therefore to keep the bridge in a safe condition, and to take care that there is no pitfall, trap, or other dangerous thing in the way. Shoebottom v. Egerton, 18 L. T. 889.

The defendant, a dock owner, supplied and put up a staging outside a ship in his dock under a contract with the ship owner. The plaintiff was a workman in the employ of a ship painter, who had contracted with the ship owner to paint the outside of a ship, and in order to do the painting the plaintiff went on and used the staging, when one of the ropes by which it was slung, being unfit for use when supplied by the defendant, broke, and, by reason thereof, the plaintiff fell into the dock and was injured-Held, that the plaintiff, being engaged on work on the vessel in the performance of which the defendant, as dock owner, was interested, the defendant was under an obligation to him to take reasonable care that at the time he supplied the staging and ropes they were in a fit state to be used, and that for the neglect of such duty the defendant was liable to the plaintiff for the injury he had sustained. Heaven v. Pender, 52 L. J., Q. B. 702; 11 Q. B. D. 503; 49 L. T. 357; 47 J. P. 709-C. A. Reversing, 30 W. R. 749.

of other buildings. In the performance of this operation they employed a steam crane and winch, to which were attached a chain and iron bucket, by means of which the earth was raised from the excavation and thence to the carts which were to carry it away. The deceased had nothing to do with the excavations, but was standing where he need not have been, watching the defendant's men at work, and allowing the bucket to pass some three feet over his head, when the chain broke, and, the bucket and its contents falling upon him, so injured him that he subsequently died-Held, that there was no evidence of negligence in the defendant's workmen; that the deceased was at the most a bare licensee; and that he stood where he did subject to all the risks incident to the position in which he had placed himself. Batchelor v. Fortescue, 11 Q. B. D. 474; 49 L. T. 644—C. A.

A railway company agreed with a contractor that he should shunt their trucks upon their line, and should supply horses and men for that purpose, the company to provide boys to assist in the shunting when they had boys, and when they had not the shunting to be done without boys. For several years the plaintiff as the servant of the contractor shunted trucks on the company's line, sometimes with and sometimes without boys. The operation of shunting is dangerous to any man performing it without assistance. The plaintiff on one occasion asked the company's foreman for a boy, but as the company could not provide one proceeded to shunt trucks alone, and, without any negligence on his part, was injured by a truck running over him. In an action by him against the company :-Held, that there was A barge of the defendant being unlawfully | no evidence for the jury of any negligence or

breach of duty on the part of the railway com- | for the acts of his driver while acting within the pany towards the plaintiff, and that he had there- scope of his employment. Venables v. Smith, fore no cause of action. Membery v. G. W. Ry., 46 L. J., Q. B. 470; 2 Q. B. D. 279; 36 L. T. 509; 58 L. J., Q. B. 563; 14 App. Cas. 179; 61 L. T. 25 W. R. 584. 566; 38 W. R. 145; 54 J. P. 244-H. L. (E.) By Lord Halsbury, L. C., and Lord Bramwell: -That the plaintiff was also prevented from recovering because he had voluntarily done the work with full knowledge of the risk he ran. By Lord Bramwell :-Where a man is not physically constrained, where he can at his option do a thing or not, and he does it, the maxim " Volenti non fit injuria" applies. Ib.

The plaintiff, a custom-house officer, had been in the habit of making use of a passage through the inside of a building in the course of erection, which was left open at both ends, to obtain access from the street on one side to certain bonded vaults on the other side, which it was his duty to superintend. The defendant was the sub-contractor for the construction of the pavement and other stonework on the passages of the building. The plaintiff, in passing through the passage, fell down an opening and was injured. The regular mode of access to the vaults was not through the passage, but through a gateway from the street: -Held, that no obligation lay upon the defendant to take precautions to guard the plaintiff from such an accident; and, the building being unfinished, if any license could be inferred to have been given to the plaintiff, it must be subject to the obvious risks incidental to the condition of the building. Castle v. Parker, 18

L. T. 367.

A railway company have a right to carry on their business on their own premises in such a way as they think fit; and, so far as the conduct of such business is concerned, to use defective machinery, e. g., for hoisting goods on their own premises, merely compensating the owners for any injury done thereby to such goods, and they are not guilty of negligence, or liable in an action for damages, under Lord Campbell's Act, quoad a third party lawfully on their premises who, without invitation by words or conduct on their part so to do, chose to pass under a heavy package of goods which was in the act of being hoisted by a crane, and which slipped from the sling by which it was defectively suspended, and fell upon and killed him whilst so passing under it, there being another way by which he might have gone without passing under the package in question, and the company having no reason to expect that people would pass under it. Griffiths v. L. & N. W. Ry., 14 L. T. 797.

B. OWNERS AND DRIVERS OF
VEHICLES.

Liability of Proprietor of Cab for act of Driver.]-The provisions of the Hackney Carriage Acts do not necessarily impose upon cab proprietors and drivers the relation of master and servant. Where, therefore, by the terms of the contract between them, such a relation is not established, and, apart from the provisions of the act, they are only in the position of bailor and bailee, the proprietor is not liable in an action for damages caused by the negligent driving of the driver. Powles v. Hider (6 E. & B. 207) and Venables v. Smith (2 Q. B. D. 279) distinguished. King v. Spurr, 51 L. J., Q. B. 105; 8 Q. B. D. 104; 45 L. T. 709; 30 W. R. 152; 46 J. P. 198.

A proprietor of a hackney carriage is liable

Where a portmanteau was lost from a cab by the negligence of the driver:-Held, that the driver was the servant of the proprietor, inasmuch as the cab had upon it the name of the proprietor under the 1 & 2 Will. 4, c. 22, s. 20, and that the action was rightly brought against him. Powles v. Hider, 6 El. & Bl. 207; 25 L. J., Q. B. 331; 2 Jur. (N.S.) 472.

Hiring Horses for Carriages. J-Where the owner of a carriage hired of a stable-keeper a pair of horses to draw it for a day, and the owner of the horses provided a driver, through whose negligent driving an injury was done to a horse belonging to a third person:-Held, by Abbott, C. J., and Littledale, J., that the owner of the carriage was not liable to be sued for such injury. Bayley and Holroyd, JJ., dissentiente. Laugher v. Pointer, 5 B. & C. 547; 8 D. & R. 550 ; 4 L. J. (0.s.) K. B. 309.

Control over Driver.] — In an action for damages done through negligent driving of a carriage and horses let to hire, and driven by the servants of the owner, it is a question for the jury whether the servants were acting as the servants of the person hiring, or of the owner. Brady v. Giles, 1 M. & Rob. 494.

A person who drives in his own carriage with job horses, and a driver hired to accompany them, is not liable for any injury caused to a third party by negligent driving or carelessness of the person so hired, even although he has selected that person from among the servants usually employed by the job master for that purpose. A person hiring job horses and a driver, may, however, in such case, render himself liable by his own conduct, such as directing the servant to drive in a particular manner, which caused the injury, but this is not in respect of the general relation of master and servant. Quarman v. Burnett, 6 M. & W. 499; 9 L. J., Ex. 308; 4 Jur. 969.

A party who had a carriage of his own, had been in the habit of hiring horses and a servant from a particular jobmaster, and was in the habit of paying the servant a fixed sum for each drive, and had provided him with a livery to wear while driving. The servant, on returning from a drive, went into the house of the hirer to change his livery, leaving the horses without anyone to mind them, which accordingly ran off :— Held, that these facts did not constitute him the servant of the hirer of the horses, so as to render the latter liable for injury done by them to the carriage of a third party. Ib.

A party, consisting of the defendant and others, hired, for a day's excursion, a carriage and post-horses, driven by postillions, who were the servants of the owner of the horses. The defendant rode upon the box. The postillions, in endeavouring to force their way into a line of carriages, overturned a gig, and seriously injured the plaintiff, who was in the gig. The defendant, at the time and afterwards, held himself out as responsible for the accident, and used expressions showing that he had a control over the postillions at the time it happened:-Held, that he was liable in trespass. M'Laughlin v. Pryor, 4 Man. & G. 48; 4 Scott (N.R.) 655; Car. & Man. 354; 11 L. J., C. P. 169.

that the defendant's servant drove the cart. Brucker v. Fromont, 6 Term Rep. 659; 3 R. R. 303.

The defendant hired a carriage and horse from the plaintiffs. The defendant's coachman, in place of taking them, as was his duty, to the stable, drove for his own purposes in another A master is liable for an injury occasioned by direction. While he was thus engaged, the car- the negligent driving of his servant, when he is riage and horse were injured, owing to his neg-acting at the time in his service and in a manner ligent driving-Held, that there had been a impliedly sanctioned by him. Patten v. Rea, breach of the defendant's contract as bailee for 2 C. B. (N.S.) 606; 26 L. J., C. P. 235; 3 Jur. which he was liable. Coupé Co. v. Maddick, (N.S.) 892; 5 W. R. 689. 60 L. J., Q. B. 676; [1891] 2 Q. B. 413; 65 L. T. 489.

Where a person was hired and paid by W. as a driver of a horse kept by its owner for the service of the defendant, but which the owner could use as he liked when the defendant did not require it :-Held, that the driver was not the servant of the defendant, and that, an accident having happened through the servant's negligence when he was not out on the defendant's service, the defendant was not liable. Nicholson v. Harrison, 4 W. R. 459.

D. contracted with the defendants, an urban authority, to supply by the day a driver and horse to drive and draw a watering-cart belonging to the defendants. The driver was employed and paid by D., and was not under the defendants' direction or control otherwise than that their inspector directed him what streets to water. In an action to recover damages for injuries caused by the negligent conduct of the driver whilst in charge of the cart:-Held, that the defendants were not liable. Quarman v. Burnett (6 M. & W. 499) followed. Rourke v. White Moss Colliery Co. (2 C. P. D. 205) distinguished. Jones v. Liverpool Corporation, 54 L. J., Q. B. 345; 14 Q. B. D. 890; 33 W. R. 551; 49 J. P. 311.

Evidence of Ownership.]-In an action for negligent driving by the defendant's servant, if it appears that the defendant holds himself out to the world as the owner of the cart, by suffering his name to remain painted on it, and over the door of the house of business to which it belongs, the action is maintainable against him, although it is proved that he had for some days ceased to be the owner of the cart and was not concerned in the business, having resigned both to his former partner. Stables v. Eley, 1 Car. & P.

But he is not liable for the servant's wilful acts done without his direction or consent. McManus v. Crickett, 1 East, 106. See Ward v. London General Omnibus Co., 42 L. J., C. P. 265; 28 L, T. 850-Ex. Ch. Affirming 21 W. R. 358.

A wine merchant sent his carman and clerk with a horse and cart to deliver some wine, and bring back some empty bottles; on their return, when about a quarter of a mile from his offices, the carman, instead of performing his duty, and driving to the offices, depositing the bottles, and taking the horse and cart to stables in the neighbourhood, was induced by the clerk (it being after business hours) to drive in quite another direction on business of the clerk's; and while they were thus driving the plaintiff was run over, owing to the negligence of the carman:— Held, that the master was not liable for that the carman was not doing the act, in doing which he had been guilty of negligence, in the course of his employment as servant. Storey v. Ashton, 10 B. & S. 337; 38 L. J., Q. B. 223 ; L. R. 4 Q. B. 476; 17 W. R. 727.

And see MASTER AND SERVANT.

Joint Hiring.]-In an action against two, for negligently driving a chaise, if they hired it jointly and were jointly in possession of it, both are liable for the accident. Dacey v. Chamberlain, 4 Esp. 229.

Aliter, if it belongs to one only, and the other is merely a passenger. Ib.

Joint Owners of Coach.] A declaration against three proprietors of a stage-coach, stated that the coach was under their care, and that through their negligence the coach ran against the plaintiff, and injured him; the evidence was, that one of the proprietors was driving when the accident happened; the jury found that the If the carriage of A. strikes against the cart of accident was occasioned by his negligent drivB., and a person who sees it demands the addressing :-Held, that the plaintiff might maintain the of the owner of the carriage, the address given by a person in the carriage is admissible; but a statement that any damage done will be paid for is not so. Beamon v. Ellice, 4 Car. & P. 585.

1.14.

Scope of Employment.]-If a servant, without his master's knowledge, takes his master's carriage out of the coach-house, and with it commits an injury, the master is not liable, because he has not in such case entrusted the servant with the carriage. But whenever the master has entrusted the servant with the control of the carriage, it is no answer that the servant acted improperly in the management of it, but the master, in such case, will be liable, because he has put it in the servant's power to mismanage the carriage by entrusting him with it. Heath v. Wilson, 9 Car. & P. 607; 2 M. & Rob. 181. S. P., Mitchell v. Crassweller, 13 C. B. 237; 22 L. J., C. P. 100; 17 Jur. 716; 1 W. R. 153.

A declaration which charges the defendant with having negligently driven his cart against

action against all the proprietors. Moreton v. Harden, 6 D. & R. 275; 4 B. & C. 223.

Gratuitous Service-Amount of Negligence.] -Action for negligence in conveying the plaintiff, who was a decorator and gardener in defendant's service, to perform for him certain work. The defendant drove, and while on the road the kingbolt of the carriage broke, the horses bolted, the carriage was overturned, and the plaintiff injured. There was no evidence of gross neglect on the part of the defendant :-Held, that the evidence did not disclose such negligence as to render the defendant, performing a gratuitous service for the plaintiff, responsible. Moffatt v. Bateman, L. R. 3 P. C. 115; 22 L. T. 140; 6 Moore P. C. (N.S.) 369.

C. WHERE CONTRACTOR, &c.,
EMPLOYED.

Delegating Performance of Dangerous Work.]

the plaintiff's horse is supported by evidence -A man, who orders work to be executed on his

own premises, lawful in itself, but from which, | Will. 4, c. 71). The mere fact that the support in the natural course of things, injurious conse- is derived from property which belongs to an quences to his neighbour must be expected to ecclesiastical corporation does not prevent the arise, unless means are adopted by which such right of support being acquired under the act. consequences may be prevented, is bound to see But the enjoyment of the right must have been to the doing of that which is necessary to prevent open and not surreptitious to come within the mischief; and cannot relieve himself of his re-provisions of the act. Damage having been done sponsibility by employing someone else to do by the wrongful acts of a contractor or his workwhat is necessary to prevent the act he had men, employed under a contract and specificaordered to be done from becoming wrongful. tion, to a neighbour's vault, it was held, under Bower v. Peate, 45 L. J., Q. B. 446; 1 Q. B. D. the circumstances, that both the employer and 321; 35 L. T. 321. contractor were liable for it, and judgment was given for the plaintiff, with costs against both defendants. Lemaitre v. Davis, 51 L. J., Ch. 173; 19 Ch. D. 281; 46 L. T. 407; 30 W. R. 360. A person who employs a contractor to do a particular act is liable for the injurious acts of the contractor which flow out of the fulfilment of the contract. Pitts v. Kingsbridge Highway Board, 25 L. T. 195; 19 W. R. 884.

One of two adjoining houses having been, twenty-seven years before the accident, altered internally by plaintiffs (the owners) so as to rest chiefly on a pillar built on the edge of their land, and contiguous to the land on which the adjoining house of defendants stood, fell down in consequence of excavations made by defendants on the site of their house which they had pulled down, and by reason of the pillar being deprived of the lateral support previously afforded by the soil under the surface of the adjoining land of defendants. In an action by plaintiffs to recover damages for the loss caused by the fall of their house :— Held (following Bower v. Peate, 1 Q. B. D. 321), that where a principal has employed a contractor to do work which is in its nature dangerous to adjoining property, the employer is bound to see that proper means are adopted to prevent injurious consequences. and cannot discharge himself of his liability by employing a competent contractor and directing him to use proper pre cautions. Dalton v. Angus, 50 L. J., Q. B. 689; 6 App. Cas. 740; 44 L. T. 844; 30 W. R. 191H. L. (E.)

The appellant and respondent were owners of adjoining houses between which was a party wall, the property of both. The appellant's house also adjoined B.'s house. and between them was a party wall. The appellant employed a builder to pull down his house, and rebuild it on a plan which involved the tying together of the new house and the party-wall between it and the respondent's house, so that if one fell the other would be damaged. In the course of the rebuilding the builder's workmen, in fixing a staircase, negligently, and without the knowledge of the appellant, cut into the party-wall between the appellant's house and B.'s house, in consequence of which the appellant's house fell, and the fall dragged over the party-wall between it and the respondent's house, and injured the respondent's house. The cutting into the party-wall was not authorised by the contract between the appellant and his builder: -Held, that the law cast a duty upon the appellant to see that reasonable care and skill were exercised in those operations which in volved a use of the party-wall belonging to himself and the respondent, exposing it to the risk above mentioned; and that the appellant could not get rid of responsibility by delegating the performance to a third person; and was liable to the respondent for the injury to his house. Bower v. Peate (1 Q. B. D. 321) commented on. Hughes v. Percival, 52 L. J., Q. B. 719; 8 App. Cas. 443; 49 L. T. 189; 31 W. R. 725; 47 J. P. 772—H. L. (E.)

Where ancient buildings belonging to different owners adjoin each other there is a right of support from the building as well as from the land; and this right of support can be claimed under the provisions of the Prescription Act (2 & 3

Legality of Act.]-A person who employs another to do a lawful act is presumed, in the absence of evidence to the contrary, to employ him to do it in a lawful and reasonable manner; and therefore, unless the parties stand in the position of master and servant, the employer is not responsible for damages occasioned by the negligent mode in which the act is done. Butler v. Hunter, 7 H. & N. 826; 31 L. J., Ex. 214; 10 W. R. 214.

Though a person employing a contractor to do a lawful act is not responsible for the negligence in executing that act; yet, if the act itself is wrongful, the employer is responsible for the wrong so done by the contractor or his servants, and is liable to third persons who sustain damage Gas Consumers Co., 2 El. & Bl. 767; 23 L. J., from the doing of that wrong. Ellis v. Sheffield Q. B. 42; 2 C. L. R. 249; 18 Jur. 146; 2 W. R.

or misconduct of the contractor or his servants

19.

or

Defective Buildings and Erections.]-When money is paid by spectators at races other public exhibitions for the use of temporary stands or platforms, there is an implied warranty on the part of the person receiving the money that due care has been used in the construction of the stand by those whom he has employed as independent contractors to do the work, as well as by himself. Francis v. Cockrell, 10 B. & S. 850; 39 L. J., Q. B. 291; L. R. 5 Q. B. 501 ; 23 L. T. 466; 18 W. R. 1205-Ex. Ch.

The defendant, acting on behalf of a committee of which he was a member, employed certain persons to erect and let to them a temporary stand for the use of persons desirous of seeing a steeple-chase. The stand having been erected, the defendant, on behalf of himself and his colleagues, received money from the plaintiff and other visitors for the use of places on the stand. The contractors were competent and proper persons to be employed to erect the stand, but it was in fact so negligently erected that it fell, and caused injury to the plaintiff, while he was upon it, looking at the races. Neither the plaintiff nor the defendant knew of the improper construction of the stand-Held, that the contract by the defendant, to be implied from the relation which existed between him and the plaintiff, was that due care had been used not only by the defendant and his servants, but by the persons whom he had employed to erect the stand, and that consequently he was liable for the injury to the plaintiff. Ib.

A livery stable-keeper is not responsible for | for a longer time than sufficient to enable any the fall of the building by the careless or im- carriages, animals or passengers, ready to traverse proper conduct of the builder of which he had to cross the bridge, and for opening it to admit not notice. Searle v. Laverick, 43 L. J., Q. B. such vessel. The company employed a con43; L. R. 9 Q. B. 122; 30 L. T. 89; 22 W. R. tractor to construct the bridge in conformity 367. with the provisions of the act of parliament, but before the works were completed, the bridge, from some defect in its construction, could not be opened, and the plaintiff's vessel was prevented from navigating the river :-Held, that the company was liable for the damage thereby caused. Hole v. Sittingbourne and Sheerness Ry., 6 H. & N. 488; 30 L. J., Ex. 81; 3 L. T. 750; 9 W. R. 274.