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that it required a distributed pressure of 1.83 cwt. per superficial foot to cause them to break. Mr. Aitchison, speaking probably chiefly from his English experience, said that an ordinary floor ought to carry 1 cwt., and a common warehouse floor 1} cwt. per superficial foot. Mr. Osmond, speaking chiefly from Calcutta experience, said that I cut. was sufficient in either case, while Mr. Clark said that floors ought to carry from 11 to 2 cwt. per foot.

On the whole I am inclined to act upon Mr. Aitchison's evidence, and to hold that a warehouse floor should be able to carry 1} cwt. per foot. Taking that as the weight which an ordinary warebouse floor ought to be able to bear, I think there was nothing improper or unreasonable in the weight the defendants placed in this godown. There is a certain amount of discrepancy, as pointed out by Mr. Graham, in the evidence as to what the upper floor contained at the time of the accident. But the defendant, Mr. Brown, and his sircars having stated, to the best of their knowledge, what goods were in the godown, and having said that all the goods in it were accounted for, except 77 dozens of bottles which were supposed to have been broken, and could not be traced, I think I may safely take the quantities to have been substantially such as they are stated by the defendants to have been. So I think I may also take the weights on the several parts of the floor to have been substantially such as they are said by the defendants to have been. Mr. Brown says that he himself weighed the cases, and calculated the average weights, and without saying that his figures are distinctly accurate, I have no doubt they are sufficiently so for the present purpose. He says that there was on the western portion of the room, which remained standing, only a distributed pressure of 2 qrs. and 21 tbs. per superficial foot; on the eastern portion, a pressure of 1 cwt. I qr. 2lbs., while the goods which had been stored in the portion which fell, gave a pressure of only 1 cwt. 1 qr. and 6lbs. Even making a liberal allowance, in addition to these figures, the result would still not show that there was anything very unreasonable in the weights the floor was required to bear. Mr. Aitchison deposed that an ordinary warehouse floor ought to be able to bear 1} cwt. and that the weight of the floor itself ought not to be more than one-fourth of

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the whole weight which it can bear. This being so, it cannot, in my
opinion, be said that the quantity of goods placed in the room by
the defendants was unreasonable or improper, or such as a tenant
exercising ordinary caution might not have placed there, even
if one-fourth be deducted as the weight of the floor itself, from
the lì cwt. which such a floor ought to be able to bear.

It is true that the whole of the heavy goods were stored in the
part of the floor that gave way, and it is possible, as suggested
by Mr. Graham, that even if the whole weight in that part, if
distributed, was only 1 cwt. 1 qr. and 6lbs., those heavy goods
may have been improperly heaped together on one part. But
beyond the fact admitted by the defendants that the goods
were stored on the portion of the floor which gave way, there is
nothing in the evidence to show that they were improperly stored
by being heaped together, or piled one upon the other. It lay upon
the plaintiff to show that the premises were used in an improper

In my opinion, as the mere fact of placing these heavy goods in the godown at all was not of itself an improper or unreasonable proceeding, the fact that they were stored over the part that gave way is not in itself sufficient to prove that there was any specially bad storage as regards those goods in particular, so as to justify me in holding that the defendants used the premises in an improper and untenant-like manner.

I do not consider it necessary to go very closely into all the details of the evidence. I base my opinion on a general view of the evidence as to the weights and quantities actually on and in the godown, and as to the bearing power of the floor in ordinary godowns. The case is one in which the plaintiff ought to have protected himself, by express stipulation, if he did not mean the godown to be used as it was. The suit will be dismissed with costs on scale No. 2.

From this decision the plaintiffs appealed on the following grounds :

1. That on the evidence there had been an unreasonable and improper use of the upper floor of the godown by the defendants in storing white paint and other heavy goods thereon ; and that by reason thereof, the said floor fell and caused the damage to the plaintiff's goods beneath.

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2. That the learned Judge ought to have decided the case on the question whether the defendants loaded on the upper floor an unreasonable and improper weight of merchandize, and on that to have decreed in favor of the plaintiff, whereas he decided the case (as the plaintiff submits wrongly, in fact) on the question whether the defendants used the godown in a tenantlike manner.

3. That it was proved, in fact, that the upper floor gave way by reason of its having been overloaded by the defendants, and that the defendants ought, under such circumstances, irrespective of any question of landlord and tenant between them, to have been declared liable to make good the damage to the plaintiff's goods.

4. That there was no warranty on the part of the plaintiff in letting the said godown that the upper floor would stand any degree of pressure, or that it was fit to store merchandize in.

5. That even if there were a warranty that the said godown should be reasonably fit for the storing of merchandize, there was on the evidence an overloading by the said defendants beyond the weight which the floor would reasonably have been expected to bear.

The appeal came on for hearing on March 29th, 1870, and was argued before Mr. Justice Norman (officiating C. J.) and Mr. Justice Markby, but no decision was given, and the case was re-argued before Couch, C. J., NORMAN, J., and MARKBY, J., on July 6th and 7th.

The Advocate-General (offg.) for the appellants.— Negligence is immaterial; the question is whether one person has a right to use his property or goods in such a manner as to damage another'sFletcher v. Rylands (1), Rylandsv. Fletcher (2). person so using what is his own does damage to the property of another, it does not matter whether he acts negligently or not. It makes no difference that the relation of landlord and tenant exists between the parties in the present case.

If that relation makes any difference, it must be, because some warranty is implied byi t; but no warranty is implied in such cases-

If one

(1) L. R. 1 Ex., 265; S. C., 35 L. J. Ex., 155.

(2) L. R. 3 H. L., 330 ; S. C., 37 L. J. Ex., 161,

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Hart v. Windsor (1). In Edwards v. Halinder (2), the plaintiff was held entitled to recover; that was a somewhat similar case to the present one; but the relation of landlord and tenant did not exist. The case of Jones v. The Festiniog Railway Company (3) shows that statutory authority may be necessary to take away the liability of a railway company; and where the defendants used locomotive engines, without such authority, they were held liable for injury done, though they took precautions to avoid it. It was not necessary to show negligence. If it should be thought, however, that the plaintiff should have shown negligence, the case does show it. It is to be presumed from the mere fact of the accident having occurred-Byrne v. Boadle (4), Scott v. London Dock Co. (5), Hammack v. White (6), Briggs v. Oliver (7). The evidence in the present case shows negligence in the way the goods were stored, -all the heavy goods in the middle, the part which broke; and in the great weight of goods put in, viz., cases of lead and tin, instead of light goods such as are shown to have been previously stored.

Mr. Woodroffe on the same side.—If a person is bound to use his premises in such a manner as not to injure any other's property, the fact of tenancy makes no difference. If it does make a difference, it must be by some right given by the relation of landlord and tenant, and such right must in this case be independent of the particular circumstance that the godown let was over the plaintiff's own premises. The acts of the defendants in this case have been such as to render them primâ facie liable-Lambert v. Bessey (8); see Fitzherbert's Natura Brevium, 89. They have used their premises in such a manner as to cause injury to the property of another, and no negligence is necessary to be shown-Hodgkinson v. Ennor (9), and case

(1) 12 M. & W., 68.
(2) Popham's Rep., 46.
(3) 37 L. J., Q. B., 214.
(4) 33 L. J., Ex., 13.

(5) 34 L. J., Ex., 17; S. C., on
appeal, Id., 220.

(6) 11 C. B., N. S., 594.
(7) 35 L. J., Ex., 163.
(8) 2 Ld. Raymond, 421, 422.
(9) 4 B. & S., 229,

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cited by Blackburn, J., in page 240 of the report. Moreover, there was negligence in the storing of the goods, and the onus lies on the defendants to show that the goods were properly stored, and not on the plaintiff to prove improper storage.

Mr. Kennedy for respondents. There was no such negligence on the part of the defendants as, if negligence was necessary to make them liable, would make them liable. It cannot be said that a person may let another a house for a certain purpose, and then bring an action against him for using it for the purpose for which it was let. The case of Fletcher v. Rylands (1) stands on the basis of the plaintiff not having brought himself into such a position as to make him likely to incur risk. So servants have to take the risk arising from the act of their fellow-servants. So if cattle going along the highway stray into an adjoining place, an action does not lie against the owner if he use reasonable diligence to get them out. The owner of the field is bound to fence his property-White v. Bass (2), Fletcher v. Rylands (1), per Blackburn, J. If a person in using his property takes ordinary care not to injure his neighbour's, he is not liable for damage. [NORMAN, J., refers to Gregory v. Piper (3)]. The principle is that, if a man puts property in the possession of another for any purpose, he cannot, if due precautions are taken, and the property is reasonably used for the purpose for which it was let, complain of any nuisance arising from such use-Hall v. Lund (4). In Tenant v. Golding (5) there was a want of repair on the part of the defendant. A person who let a race-stand in which the plaintiff had taken a place that fell down has been held liable-Francis v. Cockrell (6). [Couch, C. J.—Is there any case where it has been held that a man who lets property gurantees it to be fit for the purpose for which it is let?] No, but the case of Hart v. Windsor (7) does go so far as is contended the other way. A carrier does not guarantee the carriages he carries passengers in-Readhead v. The Midland Ry. Co. (8). The mere fact that the floor gave

8 (1) L. R. 1 Ex., 265., S. C., 35 L. J. Ex.,

(5) 1 Salk., 360 ; S. C., 2 Ld. Raym.,

1089. (2) 7 H. & N., 722.

(6) 5 L. R., Q. B., 184. (3) 9 B. & C., 591,

(7) 12 M. & W., 68. (4) 1 H. & C., 676.

(8) 4 L. R., Q. B., 379.

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