1 2 plaintiff consented to fight would be no bar to the action. But in Buller's "Nisi Prius," citing Dalton, it is laid down that if two by consent play at cudgels and one hurt the other it is no battery.3 Stephens regards this as inconsistent with previous decisions. It may be reconciled if cudgel playing is a lawful game, whereas fighting is in any event a breach of the peace, as to which there is no privilege. Cavin. The distinction between lawful and unlawful games does not Fitzgerald v. seem to have been adverted to in the extraordinary Massachusetts case of Fitzgerald v. Cavin. This may have been due to the fact that the verdict passed for the plaintiff, and the only point for the Court was whether the charge of the judge was sufficiently favourable to the defendant. It is quite consistent with the report that in the opinion of the Court, the judge's summing up at the trial was unduly favourable to the plaintiff; and it may be noted that his direction to the jury was on the assumption that "the parties were lawfully playing with one another by mutual consent." The jury were told that if in these circumstances "the act done by the defendant was no other than the plaintiff had good reason to believe would be in such play, the defendant is not liable.” If, however, the plaintiff had good reason to anticipate the act complained of, in the circumstances the play could scarcely be lawful, or if the play were lawful the act was not to be anticipated. The fullest statement of the liabilities incurred by playing Reidv.Mitchell. games, is to be found in a Scotch case." Four farm labourers were engaged in building a straw stack. Three amused themselves by knocking each other down in the straw. Either intentionally, or by accident, one of the three thus romping knocked the fourth off the stack and injured him, and he brought his action against the aggressor. The law applicable was thus stated by Lord Young: "When people engage in a game Lord Young's involving risk, or in a game generally safe, but in which accidents statement as to may happen, every player taking part in it takes on himself the injuries inrisks incident to being a player, and he will have no remedy for any injury he may receive in the course of it, unless there has been some undue violence or unfair play on the part of some of the there is no anger or ill-will. Cp. James v. Campbell, 5 C. & P. 372, where two persons fighting at a parish dinner, one of them_unintentionally gave a third person two black The Queen v. Latimer, 17 Q. B. D. 359. 1 At 15. eyes; 2 Cap. 22. I am unable to find the reference. The chapter in the Country Justice on Games and Plays" is 46. Chapter 22 is about Cattle. The substance of the statement in the text is to be found in Cap. 121, Sureties for the Peace, 282 (d). 3 Cp. The Queen v. Johnson, 34 L. J. M. C. 192. 4 Nisi Prius, vol. i. 211. 5 110 Mass. 153. The ground of action was that defendant "seized hold of plaintiff by the testicles and squeezed them severely," whereby plaintiff was seriously injured. The defence was that the plaintiff and defendant were engaged in a game together, Reid v. Mitchell, 12 Rettie 1129. the liability for flicted in play. others. He takes the risks incident to the game, and the result of these risks must lie where they fall. I should say that the same principle must govern where romping suddenly arises among people collected together, whether workpeople or others—they take the risk of the romping, and unless there is foul play, there will be no liability for unintended injury by one romper to another. I should even go the length of saying that if two men voluntarily engage in a pugilistic encounter, each must take the black eyes or the bloody noses which the other inflicts—or, if two men voluntarily engage in a bout of single stick, each must take the raps he gets from his opponent and if there be no foul play, there can be no injury giving rise to a claim of damages by the one against the other." Here there was a romp, which the pursuer took no part in; and when he received injury without having consented to take the risk of it, there arose an actionable wrong. The distinction between lawful and unlawful games between a fight and a match at single-stick, does not seem regarded. In other respects the decision bears out the English cases. 2 3 Very like what, we have seen, was the Roman law is laid down in Comyns's Digest: "If a soldier, in muster, discharge his gun and another go cross, whereby he inevitably, and against his will hurts him," it is not a battery in law. But he must set out the circumstances, and make it appear that he was not in any fault; for it is not enough to shew it was casualiter et per infortunium et contra voluntatem suam. If one is injured while looking on, the doer of the injury is prima facie liable; and where several persons are engaged in playing at ball in the public highway and a traveller is accidentally hit, the game not being a lawful one in such a place, not only is the person whose negligence caused the accident held liable in trespass, but also all those who are of the party.5 1 But see Boulter v. Clark, Bull N. P. 16, and Grotton v. Glidden, 30 Am. St. R. 413, 84 Me. 589. 2 Battery (A). See Moody v. Ward, 13 Mass. 299. 3 Weaver v. Ward, Hob. 134. 4 Underwood v. Hewson, Bull. N. P. 16. 5 Vosburgh v. Moak, 55 Mass. 453. In Ball, Lead. Cas. on Torts, 423, is the following: "The defence of leave and licence also arises where the parties were engaged in any lawful games. In such a case, indeed, the plea has a somewhat different signification; for obviously it is not any specific blow which is authorized, but a series of acts, some one of which, by misadventure, may result in a blow to one or other of the parties. See Christopherson v. Bare, 11 Q. B. 447 (sic), where the assault complained of was a blow from a cricket-ball, the parties having been engaged in a game together." As reported in 11 Q. B. 473, Christopherson v. Bare is a special demurrer to a plea of leave and licence to a declaration in trespass, charging that the defendant assaulted plaintiff, imprisoned him, and kept him in prison for the space of one month and twenty-five days. There is no mention of cricket or any other game throughout the report, unless the remark of Coleridge, J., can be so regarded. "If the plea had been only not guilty, the defendant might have shewn that the act was done in the course of sport between the parties and by the plaintiff's leave," See Domat, 2, 8, 4 CHAPTER IV. ONUS OF PROOF. MANY of the most difficult questions of law are to be solved by Introductory. the answer to the question, On whom is the onus of proof? since it not unfrequently happens that beyond evidence of the fact of the occurrence of an accident, there is no evidence available to shew how or when or why the injury sued on was caused. In some of the circumstances where this is found, the mere happening of the accident suffices to put the defendant to disproof of his liability. In others, this is not sufficient; but affirmative evidence has to be given charging the plaintiff; while in almost all cases the onus at times fluctuates during the progress of the cases, sometimes being on one party, sometimes on the other. canons of onus Bowen, L.J., in a well-known case,' lays down the canons of Bowen, L.J.'s, this subject as follows: "Whenever litigation exists, somebody of proof. must go on with it; the plaintiff is the first to begin; if he does nothing he fails; if he makes a prima facie case, and nothing is done to answer it, the defendant fails. The test, therefore, as to the burden of proof or onus of proof, whichever term is used, is simply this: to ask oneself which party will be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case, for it is obvious that, as the controversy involved in the litigation travels on, the parties from moment to moment may reach points at which the onus of proof shifts, and at which the tribunal will have to say that, if the case stops there, it must be decided in a particular manner. The test being such as I have stated, it is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side, and the burden rolls 1 Abrath v. North-Eastern Railway Company, 11 Q. B. Div. 440, at 456. As to the difference of legal procedure in England and Scotland, which renders actions for malicious prosecution rare in the latter country, see Guthrie Smith, Law of Damages (2nd ed.), 293. General rule of law. over until again there is evidence which once more turns the one. tried the term 'onus of proof' may be used in more ways than Sometimes, when a cause is tried, the jury is left to find generally for either the plaintiff or the defendant, as it is in such a case essential that the judge should tell the jury on whom the burden of making out the case rests, and when and at what period it shifts. Issues, again, may be left to the jury, upon which they are to find generally for the plaintiff or the defendant, and they ought to be told on whom the burden of proof rests; and indeed it is to be observed that very often the burden of proof will be shifted within the scope of a particular issue by presumptions of law, which have to be explained to the jury. But there is another way of conducting a trial at Nisi Prius, which is by asking certain definite questions of the jury. If there is a conflict of evidence as to these questions, it is unnecessary, except for the purpose of making plain what the judge is doing, to explain to the jury about onus of proof, unless there are presumptions of law, such as, for instance, the presumption of consideration for a bill of exchange, or a presumption of consideration for a deed. And if the jury is asked by the judge a plain question, as, for instance, whether they believe or disbelieve the principal witness called for the plaintiff, it is unnecessary to explain to them about the onus of proof, because the only answer which they have to give is 'Yes' or 'No,' or else they cannot tell what to say. If the jury cannot make up their minds upon a question of that kind, it is for the judge to say which party is entitled to the verdict. I do not forget that there are canons which are useful to a judge in commenting upon evidence and rules for determining the weight of conflicting evidence; but they are not the same as onus of proof." In considering the subject, however, these matters do not readily admit of separate treatment; for, though the consideration of whose obligation it is to give evidence in order to succeed is necessarily prior to the consideration of what is sufficient evidence to attain success, the solution of both problems, especially where contributory negligence is involved, is very frequently the same.' The general principle on the question of onus is thus framed. 1 Wakelin v, London and South-Western Railway Company, 12 App. Cas. 41. "The party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must shew that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales, and does not satisfy the Court that it was occasioned by the negligence or default of the other party, he cannot succeed," or, in the terms of the Latin maxim, Ei incumbit probatio qui dicit; non qui negat. 1 I. RES IPSA LOQUITUR. facie case of We shall, then, in the first place, consider under what circum- How a prima stances a prima facie case of negligence may be raised, calling for negligence can an answer on the part of the defendant without any further be raised. proof of actual default on his part than is involved in the mere happening of the injurious event. What, in other words, is the legal import of the phrase, res ipsa loquitur? 2 The two branches of the inquiry into the meaning of res ipsa loquitur-i.e., the consideration of what is not sufficient to raise a presumption of negligence-and the consideration of what is sufficient to raise a presumption of negligence-are treated respectively in the leading cases of Hammack v. White3 and Byrne v. Boadle.* The White. Hammack v. White is the leading authority for those cases Hammack v. which group themselves under the former branch of the subject. The defendant was riding a horse he had bought at Tattersall's the day before, at a slow pace, in Finsbury Circus, to try it. The horse seemed restless, and the defendant was holding the reins tightly, omitting nothing he could do to avoid an accident. horse, however, swerved from the roadway on to the pavement, where the deceased was walking, knocked him down, and injured him fatally. An action was brought under Lord Campbell's Act. The Court thought such a state of facts did not disclose sufficient to render the defendant liable. If it had been shewn that the defendant knew the horse to be vicious and unmanageable that might fix him with liability. Prima facie, a man found riding 1 Per Lord Wensleydale, in Morgan v. Sim, 11 Moo. P. C. C. 307, at 311. 2 Broom, Legal Maxims (6th ed.), 298. 3 (1862) 11 C. B. N. S. 588; Manzoni v. Douglas, 6 Q. B. D. 145, which is discussed in Crawford v. Uppers, 16 Ont. App. 440; Shaws v. Croall (1885), 12 Rettie 1186. Unavoidable accident is not actionable, Davis v. Saunders, 2 Chitty (K.B.) 639: Wakeman v. Robinson, I Bing. 213; Laurent, Principes de Droit Civil, vol. xx. § 468. 4 (1863) 2 H. & C. 722. Erle, C.J., Williams, Willes, Keating, JJ. VOL. I. I |