Rights when a house is let to different persons. Liability arising from allowing fences to become defective. If a collision very carefully, and to give the owner of the buildings notice of his intention, so that the latter may have an opportunity of shoring up his buildings, or doing other acts for their protection, and in so far as he fails in acting carefully, and giving such warning, he will be liable for negligence (ƒ). Where different floors of a house are let to different persons, each must so act as not to injure the other, and if one places more weight in his rooms than the floor can bear, and it accordingly give way, and does injury to property of a person below, he is liable (g). If a person on whom any obligation rests to keep up a fence or wall, negligently allows it to become defective, he is liable to any injury happening, e.g., by cattle straying from the lands and getting killed. There is not generally speaking any obligation on a person to fence out his neighbour's cattle for his neighbour's protection, but railway companies are under this obligation as to land adjoining the railway (h). And although a person or a railway company may be under an obligation to keep up a fence or a wall, and therefore liable to injuries to cattle straying through the negligent state of the fence or wall, yet such liability does not extend to cattle not properly on the land, but trespassing thereon. (i) Although, if a collision occurs in the public streets, occurs in the it is clearly the duty of the owner of an overturned public streets, the owner vehicle to take steps to remove the obstruction, and he will be liable if he negligently allows it to remain tion; but this there, yet the same rule does not apply to ships. must remove the obstruc is not so in the case of colli sions at sea, the obstructing vessel is abandoned. if (f) Dodd v. Holme, 1 A. & E. 506; Jones v. Bird, 5 B. & Ald. 837; and see 18 & 19 Vict. c. 122, s. 94. (9) Addison on Torts, 177: and see case of Edwards v. Balinder, Poph. 46, there quoted and referred to. (h) Ante, pp. 252, 253, and note (p); 8 & 9 Vict. c. 20, s. 68. If a vessel through a collision, or otherwise, without any fault or negligence on the part of the person having control of it, sinks, there is no duty or obligation thrown upon the owner to take steps to prevent its being an obstruction to the navigation of other vessels, but he may abandon it and leave it there (k). If, however, the vessel is not abandoned, but the owner exercises acts of control over it, e.g., by attempting to raise it, or by sending divers down, or otherwise endeavouring to get up part of the cargo, then this principle does not apply, for a vessel may just as much be in a man's control under water as above water, and in this case it is his duty to act with all due care and prudence in just the same way as it was his duty when the ship was afloat to act with all due care and prudence in navigatingthus, if he is exercising acts of control or ownership, he must take steps to mark out the place where the ship has sunk, so that it may be avoided, and if he fails in doing this, he is guilty of negligence, and liable accordingly (1). respect of injuries done negligent or In the case of a fire happening on one person's pre- Liability in mises, and extending and doing injury to his neighbours, generally speaking the person on whose premises through the fire originated was liable in respect of the damage accidental done. It has, however, now been provided that no ac- fires. tion shall be maintained against any person on whose premises a fire shall accidentally originate fires (m). The law, therefore, now is that if a fire happens through either any wilful act, or any negligent conduct of a person or his servants, he is liable; but if the fire really happens through mere chance, and cannot be traced to any cause, then the person on whose premises the fire originated is not rendered liable by the mere fact that the fire did originate on his premises (n). (k) Brown v. Mallett, 5 C. B. 599. (1) Manley v. St. Helen's Canal and Ry. Co., 2 H. & N. 840; see judgment delivered by Mr. Justice Maule in Brown v. Mallett, supra. A railway company not liable for an A railway company, authorized by the legislature to use locomotive engines, is not responsible for damage injury arising from fire occasioned by sparks emitted from an engine from sparks from an engine travelling on the railway, provided the company has taken every precaution in its power, and adopted every means which science can suggest, to prevent injury from fire, and is not guilty of negligence in the management of the engine (o). if there has been no negligence. Waste. Negligence by sheriff's officers. Duty of sheriff Waste, of that kind called permissive waste, constitutes an injury to property peculiarly arising from negligence. The subject of waste (which pertains more particularly to real property) has been already as much noticed as the scope of the present work allows of (p). A sheriff is liable for the negligent acts of all his officers acting in the execution of their office, and therefore if an officer, having arrested a debtor, afterwards negligently permits him to escape, or if he neglects to arrest him in the first instance when he ought to have done so, or having a writ of fi. fa. neglects to levy when he should have done so, or having levied is guilty of any negligence afterwards in realizing the goods, whereby the judgment creditor is injured, in all these cases an action lies against the sheriff for the negligence. It is the duty of the officer, on a warrant being delivered to him, to make all inquiries as to the whereabouts of the debtor or of his goods, and there is no obligation on the plaintiff or his solicitor to furnish him with information and assistance in the execution of the writ (q). The Bankruptcy Act, 1869 (r), provides that execution for 501. and upwards, levied by seizure and sale on (1) Addison on Torts, 644-653. See, as to the measure of damages in actions against sheriffs, post, part iii. P. 371. (r) 32 & 33 Vict. c. 71, ss. 6 and 87. the property of a trader, shall be an act of bankruptcy, and that in any such case the sheriff shall retain the proceeds of the sale in his hands for fourteen days; and if a petition for adjudication or liquidation by arrangement is presented within that time shall pay them over to the trustee to be applied in the bankruptcy or liquidation. If, then, the sheriff neglects to so retain the proceeds in such a case for the above period, and a bankruptcy or liquidation does occur, this will be negligence in respect of which an action will lie by the trustee. company by the non-arrival If a railway company advertises a certain train to Negligence by arrive or depart at a specified time, and through their railway negligence considerable delay occurs, whereby a person reason of is put to expense or otherwise damnified, he may of a train at recover from the company; even although one of the the proper company's conditions is to the effect that the company will not guarantee the punctuality of the trains; and under particular circumstances, but not as a matter of course, a person is justified in taking a special train and charging the expense thereof to the company (s). time. 3. In addition to the self-evident defence of a simple 3. Defences to denial of the negligence alleged, in which the matter an action for negligence. resolves itself into a simple question for the jury of yes or no, there may be two other defences of a rather more complex nature, viz., 1. That the alleged negligence was really and substantially an inevitable accident; and, 2. That there was contributory negligence on the part of the person complaining of the negligence. As to the first of these two defences, that of inevitable accident, this might be put down under the head of a simple denial of the negligence, for of course if it is an inevitable accident there is no negligence; but a few words are necessary to point out what is such an accident, one or two in (8) Hamlin v. Great Northern Ry. Co., 1 H. & N. 408; Le Blanche v. London and North Western Ry. Co., 45 L. J. (App. C.P.) 521. What will be an inevitable accident. Definition of contributory negligence. stances of it, and the distinction between it and an act really amounting to negligence. An inevitable accident that will form a defence to an action for negligence may be described as some act quite undesigned and unforeseen, and in respect of which the person committing it has not been guilty of the slightest particle of negligence (t). Thus, for instance, a railway accident generally happens through some negligence on the part of the railway company, but, as has been pointed out, an accident may arise in which the ingredient of negligence may be totally wanting, as by lights being obscured by fog or snow, or by there being some latent defect in a wheel or in machinery that no care or foresight could have discovered (u). In such cases as this, then, we have instances of an inevitable accident that will form a perfect defence to any action for negligence. But although an act may apparently result from inevitable accident, yet on close examination some negligence may often be discovered. Thus, if A. puts a gun belonging to him away in a proper and ordinarily secure place, and in some utterly unforeseen way a child gets possession of it and shoots some one, this will be an inevitable accident on A.'s part; but if A. has left his gun in a place he should not have done, and it is there got possession of and an injury done, here this is not an inevitable accident, for there is original negligence on A.'s part in leaving it there (x). Contributory negligence may be defined as such an (t) Wakeman v. Robinson, 1 Bing. 213; Kearney v. London, Brighton, and South Coast Ry. Co., L. R. 5 Q. B. 411. See Brown's Law Dict. 6, tit. "Accident." Of course the "accident" above spoken of is quite distinct from accident in equity, in which the court gives relief in a limited class of cases against the consequences of an act which has actually occurred; as to which see Snell's Principles of Equity, 359. (u) Ante, p. 330. (x) See ante, p. 327. |