No. 1. - Davis v. Saunders. — Notes.

the same principle was again affirmed by a Divisional Court of the Common Pleas Division, consisting of DENMAN, J., and LINDLEY, J. A horse drawing a brougham had, for some unexplained cause, bolted. The coachman was trying his best to stop the horse. He did not succeed. The horse fell over the kerb on to the pavement in Cockspur Street; and the plaintiff, who was walking there, was knocked down from behind. The case was tried at the Westminster County Court, where the judge, upon the authority of Hammack v. White, nonsuited the plaintiff. The Divisional Court held the nonsuit to be right.

In the cases above cited in this note, the person charged with the damage was engaged in an act which he had right as one of the public to do. The rule above stated is not less applicable to occurrences arising from the use or exercise, by the defendant, of a right of private property. But in such cases there is a different and more ready presumption of negligence, the principle of res ipsa loquitur effect, the duty of care is more

being frequently applied; and, in exact.

In Byrne v. Boodle (1863), 2 H. & C. 722, 33 L. J. Ex. 13, the plaintiff walking along the public street was damaged by a barrel of flour falling from the defendant's warehouse above his shop. The fact was held prima facie evidence of negligence.

In Scott v. London Dock Co. (1865), 3 H. & C. 596, 34 L. J. Ex. 17, 22, a custom house officer, upon his lawful business, was damaged by the fall of sugar bags from a lift over a door on the defendant's premises. No explanation was given of the cause of the occurrence. In an appeal to the Exchequer Chamber from the Court of Exchequer, the court held that evidence of negligence was necessary to make out the plaintiff's case; but, by a majority, CROMPTON, BYLES, BLACKBURN and KEATING, JJ., against ERLE, C. J., and MELLOR, J., it was held that the fact of the bags falling was evidence of negligence on the part of the defendant or his servants.

In Briggs v. Oliver (1866), 4 H. & C. 403, 35 L. J. Ex. 163, the damage was occasioned by the fall of a packing case which was rested against the wall of the defendant's premises, under the care of his servant in the public street. The Court by a majority- PIGOTT and BRAMWELL, BB., against MARTIN, B.-held that the fact was, against the defendant, evidence of negligence.

In Kearney v. L. B. & S. C. Ry. Co. (1870, 1871), L. R. 5 Q. B. 411, 6 Q. B. 759, the circumstance of a brick falling out of the supports of a girder-bridge, upon a person in the public road under the bridge, was held evidence, against the company, of negligence on their part, in not keeping the bridge in proper repair. The judgment in this case was affirmed in the Exchequer Chamber.

No. 1.-Davis v. Saunders. - Notes.

The case is different where the negligence to be inferred from the fact, may be that of a person (e. g., a contractor) for whose acts the defendant is not responsible.

In Higgs v. Maynard (1866), 14 W. R. 610, the plaintiff, who was at work in a passage where he had right to be, had his eye damaged by broken glass from the defendant's window. The window was broken by the fall of a ladder from the inside, but there was nothing to show that the defendant or his servants had anything to do with the ladder. The court held a nonsuit to be right.

In Welfare v. L. B. & S. C. Ry. Co. (1869), L. R. 4 Q. B. 693; 38 L. J. Q. B. 241, an intending passenger looking at the time tables in a Railway Station, was damaged by a plank and roll of zinc falling through the roof, by the fault (apparently and so far as there appeared to be any fault) of a man on the roof, who was presumably in the employ of a contractor. The court held that the circumstance did not constitute prima facie evidence of negligence on the part of the company.

The principle of the above rule is frequently applied in cases of damage by collision between ships. Of these it will be sufficient briefly to mention a few examples.

It has been laid down by the judgment of the Judicial Committee of the Privy Council in the case of The Marpesia (1872), L. R. 4 P. C. 212, 219, that the burden of proof of negligence lies in the first instance on the party seeking to be indemnified for the damage; but when a prima facie case of negligence and want of due seamanship is shown, the burden of proving inevitable accident lies on those charged with the damage.

In the case of The William Lindsay (1873), L. R. 5 P. C. 338, the ship charged with the damage had been moored to a buoy with the sanction of the authorities of the port. A storm being expected, the anchor had been got ready to drop. The shackle band of the buoy gave way under the stress of weather; and, on the anchor being let go, the windlass jammed. The ship was then driven against, and damaged, another ship lying at moorings. It was held that inevitable accident was established.

In the case of the Virgo S. S. (1876), 35 L. T. N. s. 519; 25 W. R. 397, at the critical moment when, under the circumstances, the helm had to be starboarded, the steering gear was found to have gone wrong. The order was given to reverse engines, but it was too late to avoid the collision. It was proved that the steering gear was thoroughly good in every respect when it was put up, that it had been surveyed from time to time, and reported to be in perfect condition. The cause of the failure was found to be the breaking of a piece of iron, in the centre of which was discovered two small flaws, which could not have

No. 1. Davis v. Saunders. — Notes.

been detected by any means previously. Shortly before the occurrence, and to get out of the way of some barges, the helm had been put harda-port, and the vessel had answered her helm properly. It was held that the burden of proof of inevitable accident was satisfied. The circumstances were observed to be similar to those in the case of Readhead v. Midland Ry. Co. (1867, 1869), L. R. 2 Q. B. 412, 4 Q. B. 379, 38 L. J. Q. B. 169, where the Railway Company, being sued for damage to a passenger whom they carried, was exonerated by showing that the catastrophe was caused by the breaking of a tyre through a latent defect not attributed to any fault of the manufacturer, and not to be detected previously to the breaking.

AMERICAN NOTES.

The general rule laid down by the principal case is universally recognized in America.

In the absence of negligence, persons engaged in the prosecution of a lawful act are not liable for an accidental injury occurring in the performance of it. "The authorities all agree, that an injury resulting from a superior cause, unmixed with negligence from the defendant, imposes no liability." Ray on Negligence of Imposed Duties, the latest text-writer on the subject. So where a railroad is not required to be fenced, the company will not be liable for killing cattle straying on it, unless negligent. Williams v. Michigan Cent. R. Co., 2 Michigan, 259; 55 Am. Dec. 59. So where water, falling on noxious substances on one's land, percolates into and corrupts another's well. Brown v. Illius, 27 Connecticut, 84; 71 Am. Dec. 49. So in respect to communication of fire. Fahn v. Reichart, 8 Wisconsin, 255; 76 Am. Dec. 237. So where one's property is carried away by flood and deposited on the land of another (unless he reclaims the property). Sheldon v. Sherman, 42 New York, 484; 1 Am. Rep. 569; Livezey v. Philadelphia, 64 Penn. St. 106; 3 Am. Rep. 578. So of fire by sparks from a steam engine. Hinds v. Barton, 25 New York, 544. So of damage by a runaway horse. Brown v. Collins, 53 New Hampshire, 442; 16 Am. Rep. 372; Vincent v. Stinehour, 7 Vermont, 62; 29 Am. Dec. 145, and note, 149. So where one lawfully defending himself struck another, mistaking him for the assailant. Paxton v. Boyer, 67 Illinois, 132; 16 Am. Rep. 615. So of one who in separating his dog from another while fighting, accidentally hurts a bystander. Brown v. Kendall, 6 Cushing (Mass.), 292. So an innkeeper is not liable for property of his guests destroyed without his negligence by accidental fire. Cutler v. Bonney, 30 Michigan, 259 (disapproving Hulett v. Swift, 33 New York, 571); Merritt v. Claghorn, 23 Vermont, 177. So of snow sliding from a roof. Garland v. Towne, 55 New Hampshire, 56; 20 Am. Rep. 164. So of a wash-out on a railroad caused by an unprecedented storm, and injuring an employee, Central, &c. Co. v. Kent, 87 Georgia, 402; or a passenger, Railroad Co. v. Halloren, 53 Texas, 46; 37 Am. Rep. 744. So of an explosion of goods on a carrier's premises injuring other premises. Nitro-Glycerine Case, 15 Wallace (U. S. Sup. Ct.), 524.

To the same effect, The Mollie Mohler, 2 Bissell (U. S. Circ.), 288; The Lady Pike, id. 141; The New Jersey, Olcott (U. S. Circ.), 448; Fergusson v. Brent, 12 Maryland, 33, "an opinion characterized by fine discrimination and by accurate research." 1 Smith Lead. Cas., 413; Percival v. Hickey, 18 Johnson (New York), 289; Lewis v. Flint, 54 Michigan, 55; Bennett v. Ford, 47 Indiana, 264 (runaway horse); Sutton v. Bonnett, 114 Indiana, 243 (discharge of pistol); Baltimore, &c. R. Co. v. School District, 96 Penn. St. 65; 42 Am. Rep. 529.

Overflow of water obstructed by a dam, across an abandoned river bed, which was lawful when built, is to be laid to the account of Providence, and not to the hand of man, if it would not have happened except for the filling up of the new channel of the river by natural causes. Payne v. Kansas City, &c. R. Co., 112 Missouri, 6; 17 Lawyers' Rep. Annotated 628.

The slipping of a wagon against and breaking a lamp post, owing to the slipperiness of the street, is an inevitable accident. Roche v. Milwaukee Gas Co., 5 Wisconsin, 55. See Strouse v. Whittlesey, 41 Connecticut, 559; 15 Am. Law Reg. (N. s.), 33.

A learned review may be found in Bizzell v. Booker, 16 Arkansas, 308, a case where campers were alleged to have negligently left a fire burning in the woods, which communicated to and destroyed plaintiff's property. The court said: “Where one is doing a lawful act, or an act not mischievous, rash, reckless, or foolish, and naturally liable to result in injury to others, he is not responsible for damages resulting therefrom by accident or casualty, while he is in the exercise of such care and caution as a prudent man would observe," &c.

By "accident" is meant an inevitable occurrence, not to be foreseen or prevented by vigilance, care, and attention, and not occasioned or contributed to, in any manner, by the act or omission of the defendant, his agents, servants, or employees. Carroll v. Staten Island R. Co., 58 N. Y. 126; 17 Am. Rep. 221. An accident is an event from superior causes. Gault v. Humes, 20 Maryland, 297. Inevitable accident is one not resulting from neglect of any duty. Parrott v. Wells, 15 Wallace (82 U. S.) 524; Brown v. Collins, 53 New Hampshire, 442; Searles v. Manhattan Ry. Co., 101 New York, 661; Ohio, &c. Co. v. Lackey, 78 Illinois, 55.

But where a violent storm renders jettison necessary, to save the rest of the cargo, the loss is excused. Price v. Hartshorn, 44 New York, 94; 4 Am. Rep. 645.

It has, however, been held that an innkeeper is liable for loss by fire unless traced to lightning or other superhuman cause. Miller v. Steam Nav. Co., 10 New York, 431; Chicago, &c. R. Co. v. Sawyer, 69 Illinois, 285.

So the fall of a large wooden sign, caused by an ordinary wind, may not be deemed an act of God or inevitable accident. St. Louis, &c. R. Co. v. Hopkins, 54 Arkansas, 209; 12 Lawyers' Rep. Annotated, 189.

The collision of two vessels in the dark is not an act of God, but is an inevitable accident. The Morning Light, 2 Wallace (U. S. Sup. Ct.), 560. But the act must be lawful, and the injury unintentional and without original design naturally rendering the injury possible.

VOL. I. - 14

So an action lies for an accidental injury caused by the glancing of a bullet in shooting at a mark. Welch v. Durand, 36 Connecticut, 182; 4 Am. Rep. 55. This is put on the ground of neglect, as to time and place. The court cite a case of shooting at butts with bow and arrow. Year Book, 21 Hen. VII., 28 a. So in Castle v. Duryea, 32 Barbour, 480, the defendant, colonel of a militia regiment, was held liable for an injury by a bullet from a gun fired in a general discharge, by his order, the regiment facing the spectators about three hundred and fifty feet distant. So in Cole v. Fisher, 11 Massachusetts, 137, the defendant, for the purpose of drying a gun, having discharged it at the door of his shop, near the highway, causing plaintiff's horse, standing tied therein, to run away and break the vehicle, was held liable. So where an infant threw a piece of mortar at another, not intending to hurt him. Peterson v. Haffner, 59 Indiana, 130; 26 Am. Rep. 81; Conway v. Reed, 66 Missouri, 346; 27 Am. Rep. 354. The same principle in Corning v. Corning, 6 New York, 97; Bullock v. Babcock, 3 Wendell (New York), 391. So where one injures another in fighting or wrestling. Adams v. Waggoner, 33 Indiana, 531; Bell v. Hansley, 3 Jones Law (No. Carolina), 131; Dole v. Erskine, 35 New Hampshire, 503. Or where one shoots at a fox and kills a hound, Wright v. Clark, 50 Vermont, 130; or points a pistol at another. Sutton v. Bonnett, 114 Indiana, 243.

Similar in principle, but involving the doctrine of proximate and remote cause of injury, are the celebrated New York cases of Vandenburgh v. Truax, 4 Denio, 464, and Guille v. Swan, 19 Johnson, 381. In the former the defendant in a quarrel with a boy in the street, chased him into plaintiff's store, where the boy in endeavouring to evade him, ran against a cask of wine, knocked out the faucet, and caused the wine to escape. In the latter case, the defendant, an æronaut, making an ascension, descended involuntarily and violently into plaintiff's garden, and crying for help, a crowd of persons rushed in and trampled the growing vegetables. The defendants were held liable in both cases.

No. 2. - THE UHLA.
(ADM. 1868.)

RULE.

WHERE such ordinary diligence and skill as persons exercise, who properly discharge their duty, could have prevented the disaster, there is not an inevitable accident.

The Uhla.

19 Law Times, N. s. 89.

This was an action brought in the Admiralty Court by the Falmouth Dock Company for damage caused to their breakwater by the ship Uhla, which during a gale had been abandoned by the crew and left beating against the breakwater. The defences were,