L. J. Q. B. 772, was an action for damage caused by the rush of water on the opening of the water-gates at Deptford Creek, the outfall of the defendants' sewage system. The sewer was properly constructed under the powers of the Acts. It was the duty of the man in charge of the water-gates to open them when the water immediately above rises to a height showing a depth of eight feet, a height attained only in heavy rainfalls. This having been done, and the rain continuing with increased volume, the rush of water became such as to do the mischief complained of. It was held that the mischief was caused not by the act of God, but by the opening of the gates; but that, the mischief being the inevitable result of what Parliament had authorised the defendants to do, they were not liable. It is clear from this decision, that, if the acts in question had been done without statutory powers, the defendants would have been liable for the damage done by the opening of the gates, even if the rainfall had been so great as to constitute a case of vis major.

No. 8.-VAUGHAN v. TAFF VALE RY. CO.

(EXCH. CH. FROM EXCH. 1860.)

RULE.

PERSONS associated or incorporated for public purposes with statutory powers, are, in the absence of statutory provisions as to their liability, not responsible for accidents occurring through the use of their statutory powers in a manner necessary for carrying out the public purposes, provided they have taken every precaution, and adopted every means in their power, to prevent damage.

Vaughan v. Taff Vale Ry. Co.

5 H. & N. 679; 29 L. J. Ex. 247.

This was an appeal in the Exchequer Chamber by the defendants against the judgment of the Court of Exchequer in discharging a rule for a new trial.

The case stated on appeal was as follows: The defendants are a company, who, under their special Acts and the General Railway Acts incorporated therewith, are proprietors of, and use and work the Taff Vale Railway with locomotive engines as a passenger and

goods line.

No. 8. - Vaughan v. Taff Vale Railway Co.

The plaintiff is the owner of a wood or plantation adjoining the embankment of the railway. On the 14th March, 1856, the plaintiff's wood was discovered to be on fire, and eight acres of it were burnt. The fire may be taken to have originated from a spark or coal from one of the defendant's locomotive engines in the ordinary course of its working. This action was brought by the plaintiff for the damage he sustained by the fire.

From the evidence of the plaintiff and his witnesses, it appeared that the fire in the plaintiff's wood was first seen at a place fifty yards from the railway; that there were traces of fire extending continuously all the way between the railway and the wood, and that the railway bank was burning; that the grass on the bank had been cut three or four months before, but that there was grass of a very combustible nature growing on the bank just previous to the fire, and that it was all burned; that there was a great deal of long grass growing in the wood, which was extremely combustible; that the wood was also full of small dry branches, the remains of a former cutting, and was described, by the plaintiff, to be in just about as safe a state as an open barrel of gunpowder would be in the Cyfarthfa rolling-mill.

The wood, however, was in an ordinary and natural condition, and as it had been before and since the railway was made. Whether the injury was caused by the grass on the embankment being first set fire to, or whether by lighted matter being thrown from the locomotive on to the plaintiff's land, was not left to or determined by the jury. The defendant's counsel did not at the trial make any objection on this ground.

On the part of the defendants it was sworn that everything which was practicable had been done to the locomotive to make it safe that a cap had been put to its chimney; that its ashpan had been secured; that it travelled at the slowest pace consistent with practical utility, and that if its funnel had been more guarded or its ashpan less free, or its pace slower, it could not have been advantageously used; and it must be taken to be the fact that the defendants had taken every precaution and adopted every means in their power, and which science could suggest, to prevent their engines from emitting sparks, but the witness added, "we do occasionally burn our own banks now."

The learned Judge left the question of negligence and improper conduct by the defendants to the jury, saying there was evidence

thereof, even though the jury believe the evidence that everything which was practicable had been done to the locomotive to render it safe, and though it travelled at the slowest pace consistent with practical utility. He refused to leave to the jury any question arising out of the combustible character of the plaintiff's wood. The jury returned a general verdict for the plaintiff, the damages being agreed upon at £27 10s.

The Judge did not direct the jury, as stated in the rule of the Court of Exchequer, "that no care or skill used in preventing the escape of fire from the engine would be an answer to the charge of negligence, provided the defendants did not succeed in preventing it," but left the question of negligence and improper conduct as above. The question whether there was evidence as to both or either count was entertained and dealt with by the Court of Exchequer as though open to the defendants on the rule, and without requiring any amendment thereof.

The question for the decision of the Court of Appeal is, whether or not the defendants are entitled to have a new trial on the ground that there was no evidence of negligence to go to the jury under the first count of the declaration, assuming it was true, as sworn, that everything had been done, &c. ; the plaintiff contending that there was such evidence, and also that, if not, the question is not open to the defendants, and also that the Judge was wrong in not leaving to the jury any question arising out of the combustible character of the plaintiff's wood.

If the court shall be of opinion in the affirmative, then the verdict for the plaintiff is to be set aside and a new trial had. If the court shall be of opinion in the negative, then the verdict for the plaintiff is to stand, and judgment to be entered for £27 10s. damages.

The case having been argued, the court pronounced judgment as follows:

COCKBURN, C. J. We are all of opinion that the decision of the Court of Exchequer cannot be upheld, and that the case must go down for a new trial. I collect, from the reasons given by my brother Bramwell in delivering the judgment of the Court of Exchequer, that the ground upon which that court discharged the rule was this: Whereas accidents occasionally arise from the use of fire as a means of propelling locomotive engines on railways, the happening of such accidents must be taken to be a

natural and necessary incident to the use of fire for that purpose, and, therefore, railway companies, by using fire, are responsible for any accident which may result from its use, although they have taken every precaution in their power. So far as I can gather from the language of the judgment, that is the view taken by the court of the law applicable to the first count. I cannot adopt that view: it is at variance with the principle on which the Court of Queen's Bench proceeded in the case of Rex v. Pease, 4 B. & Ad. 30, which we are prepared to uphold. Although it may be true, that if a person keeps an animal of known dangerous propensities, or a dangerous instrument, he will be responsible to those who are thereby injured, independently of any negligence in the mode of dealing with the animal or using the instrument; yet, when the legislature has sanctioned and authorised the use of a particular thing, and it is used for the purpose for which it was authorized, and every precaution has been observed to prevent injury, the sanction of the legislature carries with it this consequence, that if damage results from the use of such thing, independently of negligence, the party using it is not responsible. It is consistent with policy and justice that it should be so; and for this reason, so far as regards the first count, I think the judgment of the court below is wrong. It is admitted that the defendants used fire for the purpose of propelling locomotive engines, and no doubt they were bound to take proper precaution to prevent injury to persons through whose lands. they passed; but the mere use of fire in such engines does not make them liable for injury resulting from such use without any negligence on their part.

As regards the second count, if the facts alleged in that count had been established by the verdict of the jury, the defendants would have been liable; but in as much as the learned Judge, in substance, told the jury that (independently of the facts alleged in the second count) if they were satisfied that the accident arose from the use of fire, the defendants were responsible, there is nothing from which we may not suppose that the jury found their verdict upon the first count only. Indeed, the questions raised for our determination tend to show that in the opinion of the learned Judge, the counsel, and all parties, the verdict proceeded on the first count; and, therefore, the question of negligence under the second count was improperly withdrawn from the jury. It may be that the plaintiff is entitled to succeed on that count, or it may be that

No. 8. - Vaughan v. Taff Vale Railway Co.

the mischief arose from the sparks not being carried to the bank, but directly to the wood, which was of a combustible nature; in which case the defendants would not be liable. For these reasons

I am of opinion that there ought to be a new trial.

WILLIAMS, J. I am of the same opinion. We cannot confirm the decision of the Court of Exchequer without affirming that the defendants are liable for accidents caused by the use of locomotive engines, although they were guilty of no negligence and took every precaution to guard against accident. Rex v. Pease shows that such is not the law.

CROMPTON, J. I am of the same opinion. It seems to me that there was no evidence of negligence to support the first count. It is found that the defendants took all practicable precautions that science could suggest to prevent accident. That is substantially a finding that there was no negligence as regards the first count. The jury may have thought that there was no negligence to support the second count, and may have proceeded upon the ground that the defendants were liable under the first count without actual negligence. Rex v. Pease decides this matter, for it shows that although the use of a locomotive engine must have been accounted a nuisance unless authorised by the legislature, yet, being so authorised, the use of it is lawful, and the defendants are not liable for an accident caused by such use without any negligence on their part. It is said that where a person keeps an animal of a ferocious nature, it is not necessary to allege a scienter; but that is very properly the law, because the negligence is the unlawful act of keeping such an animal. If the animal be tame it is not unlawful to keep it, unless it is known to be of dangerous habits. My judgment proceeds upon the ground that the legislature has made the use of locomotive engines not an unlawful act; and, therefore, it is lawful for the defendants to use them so long as they do so without negligence.

WILLES, J. I am entirely of the same opinion, though I have had considerable reluctance in coming to that conclusion, because looking at the report of this case in 3 Hurlstone and Norman, 743, I feel that we are obliged to reverse the judgment of the court below, although we do not, in point of law, differ in opinion from that court. There was evidence that the defendants had taken every precaution, and adopted every means in their power, and which science could suggest, to prevent injury. It would have