1870 KOEGLER

v.

YULE.

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 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.
(2) 29 L. J., Ex., 247.

(3) 37 L. J., Q. B., 214.

(5)

(4) 2 L. R., Q. B., 223.
H. & C., 676.
(6) 7 H. & N., 722.

(7) 28 L. J., Ex., 3.

(8) 11 C. B. N. S., 594.

(9) 34 L. J. Ex., 17; S. C., on appeal, Id., 220.

(10) 12 M. & W., 68.

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 circumstances.

V.

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 v. 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 upou 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.
(2) 19 C. B., N. S., 190.

(3) 7 H. & N., 722.

(4) 1 H. & C., 676.

(5) 1 Salk., 360; S. C., 2 Ld. Raym., 1089.
(6) L. R. 1 Ex., 265; S. C., 35 L. J. Ex., 155.
(7) 7 E. & B., 625.

(8) 4 H. & N., 585.

1870

KOEGLER

V.

YULE.

Before considering the question of law which has been KOEGLER raised, it will be better to state the view I take of the facts.

1870

v.

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 1 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.
"I mean," he said, "a floor having such a weight of brick-work
"on the girders," that there ought to be a surplus strength of
three-fourths after the merchandize was on; he would not expect
a floor to break with half a cwt. above the average, and he said the
floor had the appearance of having been a roof; he imagined it had
been a roof originally. Mr. Osmond, another of the plaintiff's
witnesses, said he did not consider the girders proper girders for
a floor for merchandize, and that he would not anticipate danger
from storing 1 cwt. on a proper upper warehouse floor. Mr.
Clark, the defendants' witness, said that he made about 35
tons distributed to be the breaking weight of the girders, in
which the other witnesses agreed with him; that he made the
weight of the floor 15 tons on each girder, and considered the
proper load for an iron girder certainly not exceeding one-third
of its breaking weight; that he considered 1 cwt.
a low
estimate for the weight of goods that might be stored, and
those girders were only sufficient for the floor; even then they
were loaded above the one-third; and that no unprofessional
person who had not ascertained the state of the floor could have
anticipated danger from it. Mr. Aitchison also said that no
unprofessional man could judge that the floor was not suited for
a warehouse. This evidence, I think, shows that the girders
were not sufficient for the floor of an upper story to be used as a
godown, which was what the plaintiff and his deceased partner
let it for, and that the defendants had no reason to suspect that
the girders were not sufficient.

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. Ex., 155.

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

1870

KOEGLER

v.

YULE.

1870

KOEGLER

v.

YULE.

struct it. A. had worked his mines up to a spot where there were certain old passages of disused mines; these passages were connected with vertical shafts which communicated with the land above, and which also had been out of use for years, and were apparently filled with mud and the earth of the surrounding land. No care was taken by the engineer or contractor to block up these shafts, and shortly after water had been introduced into the reservoir, it broke through some of the shafts, flowed through the old passages, and flooded A.'s mine. The Lord Chancellor (Lord Cairns) said, "The principles upon which the case must be "determined appear to me to be extremely simple. The de"fendants, treating them as the owners or occupiers of the close on "which the reservoir was constructed, might lawfully have used "that close for any purpose for which it might, in the ordinary "course of the enjoyment of land, be used; and if in what I may "term the natural user of that land, there had been any accumula"tion of water, either on the surface or under ground, and if by the operation of the laws of nature that accumulation of water had 'passed off into the close occupied by the plaintiff, the plaintiff "could not have complained that that result had taken place. On "the other hand, if the defendants, not stopping at the natural use "of their close, had desired to use it for any purpose which I may "term a non-natural use, for the purpose of introducing into the "close that which in its natural condition was not in or upon it, for "the purpose of introducing water either above or below ground, "in quantities and in a manner not the result of any work or operation, on or under the land; and if in consequence of their doing "so, or in consequence of any imperfection in the mode of their "doing so, the water came to escape and to pass off into the close "of the plaintiff, then it appears to me that that which the defend"ants were doing, they were doing at their peril; and if in the "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.

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