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way does not show negligence-Welfare v. London and Brighton Ry. Co. (1). In Vaughan v. The Taff Valley Ry. Co. (2), and Jones v. Festiniog Ry. Co. (3), the defendants were held liable, because they had no authority to use locomotive engines. Here they had authority to use the godown for the purpose for which they did use it. In the two cases last cited, the defendant would have been excused by legislative authority; here he is excused by the authority of the plaintiff who let him the godown. In using it for the purpose for which it was let, damage arises, and no negligence is proved; the defendant therefore is not liable. [The Court referred to Brand v. Hammersmith Ry. Co. (4).] The cases of Vaughan v. The Taff Valley Ry. Co. (2) and Jones v. The Festiniog Ry. Co. (3), together with Hall v. Lund (5) and White v. Bass (6), go far to show the truth of the principle that a person has a perfect right to use in a proper manner, and for a proper purpose, premises that he has taken for that purpose.
Mr. Evans on the same side.—Some negligence must be shown, and none is shown here. The fact of an accident happening is not necessarily proof of negligence-Bird v. The Great
y Northern Ry. Co. (7), Hammack v. White (8). A horse running away is not necessarily a proof of negligence. The case of Scott v. The London Dock Company (9) and many others lay down the proper principle that, where a person passes along by permission a place where a trade is being lawfully carried on, he does so at his peril, and the defendants have in those cases been held not to be liable. Granting the principle in Hart v. Windsor (10) that there is no implied warranty in letting a house that it is fit for habitation, yet it does not follow that the landlord of that house could bring an action against his tenant, if he was using a room let for habitation, though damage might have been done to the landlord's property underneath, by the floor giving way.
(1) 4 L. R., 2 B., 698.
(7) 28 L. J., Ex., 3.
The want of privity is very material. In Edwards v. Halinder (1), the person who was injured was not the lessor; the decision depended on their being strangers-Murchie Black (2). The general rule is that strangers can recover, but this does not apply where there are special circuinstances.
The Advocate-General in reply.—The cases of White v. Bass (3) and Hall v. Lund (4) do not bear at all in the present case. It is contended that Tenant v. Goldwin (5) does not apply in cases where the relation of landlord and tenant exists ; but there is no ground for saying in this case that the plaintiff took the risk of having a different kind of goods stowed in the godown, or stowed in such a way as they were. In Fletcher y. Rylands (6) it is said there are some exceptions, but the defendants do not show that they came under an exception. The cases on the right to support of surface show, that when earth gave way, without negligence being shown, defendant was liable-Haines v. Roberts (7). [NORMAN, J., refered to Solomon v. The Vintners Co. (8).] In this case the plaintiffs have not diminished the support; the floor gave way because the defendants put too great a weight on it: and therefore used it unreasonably.
Couch, C. J.-The substance of the plaint in this case is that the defendants were tenants to the plaintiff and his deceased partner of the upper floor of a godown in Clive Street, Calcutta ; and that they loaded on the upper floor an unreasonable and improper weight of white lead and other merchandize, whereby it broke and fell in, and the goods of the plaintiff and his deceased partner were damaged. The suit was heard before Mr. Justice Macpherson, who considerd that the only issue upon the plaint was, whether or not the defendants used the upper floor in an untenant-like and improper manner, and loaded an unreasonable and improper weight upon it, and finding that in the defendants' favor, he dismissed the suit with costs. The plaintiff has appealed from this decree.
(1) Popham's Rep., 46.
(5) i Salk., 360; S. C., 2 Ld. Raym., 1089.
Before considering the question of law which has been KoEGLER raised, it will be better to state the view I take of the facts. YULE. Mr. Justice Macpherson, says :-“ It is clear upon the evidence
“ that the general use of the godown by the defendants was not “ dissimilar to that of its former tenants, but there was this “ difference in the defendants' mode of using the room, that, “in addition to wine and light goods such as had always been “stored there, sixteen casks of white and red lead, and “ certain cases containing tin plates, were stored there at “ the time of the accident." This has not been disputed before us.
Some evidence was given for the plaintiff that it is not usual in Calcutta to store heavy goods in an upper floor. That does not appear to have had any weight with the learned Judge, and I think rightly, because if the floor is not loaded in any part with a greater weight than it ought to be able to carry, the description of the goods is not material, and the letter of the 5th February 1869 puts no restriction upon the use of the godown, except that no combustible or hazardous goods should be stored in it: and it is not alleged in the plaint that it was part of the terms of the tenancy that heavy goods were not to be stored in it. There was also evidence for the defendants that heavy goods are sometimes stored on an upper floor. Upon the evidence of the three professional witnesses, Mr. Justice Macpherson held that a warehouse floor should be able to carry 11 cwt. per foot, and he concluded from the evidence that the goods which had been stored on the portion of the floor which fell gave a pressure of only 1 cwt. 1 qr. and 6 lbs. The learned Judge was satisfied with the evidence of Mr. Thomas Brown, an assistant to the defendants, as to the storing of the goods, and I see no reason for thinking that he was wrong in this, or that we ought to come to a different conclusion on this point. If the pressure was only 1 cwt. 1 qr. and 6 lbs., it would not make any difference whether the goods were light or heavy goods. But there is evidence in the case, not noticed in the judgment, which should be considered. Mr. Aitchison, one
, of the plaintiff's witnesses, who went to the premises a day or two after the accident, and examined the floor, said he agreed with Mr. Clark as to the weight of the floor, and he should not
have considered such a floor calculated to store merchandize on.
Upon these facts, then, I have to consider whether the defendants are liable for the damage which the plaintiff has sustained.
In the argument before us, the counsel for the plaintiff relied upon the rule of law laid down by the Court of Exchequer Chamber and the House of Lords in Fletcher v. Rylands (1) and Rylands v. Fletcher (2). There A. was the lessee of mines, and B. the owner of a mill standing on land adjoining that under which the mines were worked. B. desired to construct a reservoir, and employed competent persons, an engineer and a contractor, to con
(1) L. R., 1 Ex., 265 ; S. C., 35 L. J. (2) L. R., 3 H. L., 330; S. C., 37 L. J. Ex., 155.
struct it. A. had worked his mines up to a spot where there were
course of the enjoyment of land, be used; and if in what I may
course of their doing it, the evil arose to which I have referred, “the evil, namely, of the escape of the water and its passing away “ to the close of the plaintiff, and injuring the plaintiff, then for the “ consequence of that, in my opinion, the defendants would be “ liable.” It appears to me that, applying that principle to the present case, the defendants are not, upon the facts which have been proved, liable for the injury which the plaintiff has sustained.