Mortgage. See Recovery of Land. Negligence (a). Action for Negligence in unloading Goods causing Personal Injury. 1. The plaintiff is a cook, and in the month of August, 1876, Claim was in the service of Mr. of No. Terrace, against master for negligence of servant causing injuries. on the (a) A person is liable for his or her own negligence, or for the negligence of a servant, causing actual injury or loss to another. But it is not enough that the plaintiff has been injured, and so injured by the act of the defendant. To found an action there must be negligence on the part of the defendant directly bringing about the injury; and the onus of Onus of proving such negligence, except in a few cases where the law presumes proving it, lies on the plaintiff. Where the injury is the result of mere accident, negligence no action lies; thus, where the coachman was driving in the middle of usually the road, and not on his own side, but there were no other coaches on the road, and the horses took fright and overturned the coach, this was held to plaintiff. afford no evidence of negligence (Wakeman v. Robinson, 1 Bing. 213); so where an injury was inflicted by a horse on which the defendant was riding, and there was no proof that he omitted to do anything in his power to prevent the accident, the plaintiff was nonsuited. (Hammack v. White, L. J. 31 C. P. 129.) Any act of negligence on the part of the defendant is insufficient. 66 The negligence must in some way connect itself or be connected by evidence with the accident." (Jackson v. The Metropolitan Ry. Co., 37 L. T. N. S. 679, per Lord Cairns.) "It is not sufficient to prove 'some act of negligence, unless it be proved that such negligence was the direct cause of the injury complained of." (Ibid.) The pleader is referred to the case cited-Jackson v. The Metropolitan Ry. Co.-as the most recent and most authoritative exposition of the law on this subject. Injuries caused by mere accident not actionable. Any negligence not enough. be inferred from the mere fact of the occurrence. It has been said that the onus lies on the plaintiff of proving negli- When neggence; but the accident may take place under such circumstances as ligence may to be primâ facie evidence of negligence, for the happening of something that would not happen if ordinary skill and care were used is evidence of negligence (Gee v. Metropolitan Railway Co., L. R. 8 Q. B. 175, per Brett, J.), as where a collision takes place between two trains of the same company. (Skinner v. L. & Brighton Ry. Co., 5 Exch. 787.) So proof that a stage-coach broke down raises a presumption that the accident arose either from the unskilfulness of the driver or the insufficiency of the coach. (Christie v. Griggs, 2 Camp. 79.) So, where B., walking in a street in front of the house of a flour-dealer, was injured by a barrel of flour falling upon him from an upper window, it was held that the mere fact of the accident was evidence to go to the jury in an action against the flour-dealer. (Byrne v. Boadle, L. J. 33 Ex. 13. See also Scott v. London Dock Co., L. J. 34 Ex. 17, 220, Ex. Ch.; Kearney v. L., Brighton, & S. C. Ry. Co., L. R. 6 Q. B. 759.) Although a person is liable for the act of a servant causing injury to another, such liability only exists where the negligence was committed Claim against master for the negligence of servant causing injuries. A master is not liable for the wilful and malicious act of ser vant. Person not usually liable for the negligence of contractor employed by him. Contribu tory negligence. Hyde Park, and the defendant is an ice merchant carrying on at a time when the servant was going about his master's business, and acting, however injudiciously as it turns out in the event, as he thinks in the interest of his employer. It is long since the law was laid down that a master is not answerable for the wilful and malicious act of his servant. (Manus v. Crickett, 1 East, 106.) Thus, where the defendant's servant wantonly, and not for the purpose of executing his master's orders, strikes the plaintiff's horses, and thereby produces the accident, the master is not liable; but where the servant, in the course of his employment, and in order to extricate himself from a difficulty, so strikes them, although injudiciously, his master is liable. (Croft v. Alison, 4 B. & A. 590.) If the servant at the time of the accident is engaged on his own business, the master is not responsible, as in the case of Storey v. Ashton, L. R. 4 Q. B. 476. There the defendant's carman was directed to deliver the defendant's goods at a certain place, and the carman drove the defendant's cart with the goods in it in an opposite direction, in order that he might transact some business of his own, and it was held that the defendant was not liable for an injury done by the cart while it was being so driven by the carman. But where a servant uses his own horse and gig on his master's business, and with his knowledge, the master is liable, though the servant may on the same occasion do business of his own. (Patten v. Rea, L. J. 26 C. P. 235.) Though a master is thus generally liable for the negligence of a servant, he is not liable for the negligence of another who contracts with him to do a lawful work. Here the contractor alone is liable, and not his employer; but this rule does not extend to protect one who is bound to do a particular work, and who engages another to do it for him. In such a case it is at his risk if the contractor neglect the work. Defences. Among the defences most common in actions for negligence are the following: 1. That the plaintiff was guilty of no negligence. 2. That even if there were negligence on the part of the defendant, such negligence was not the direct and immediate cause of the accident. 3. That plaintiff was himself guilty of negligence which contributed to the accident. This latter is a very common and important defence. The law is well settled that though there has been negligence in the defendant, if the immediate and proximate cause of the injury was the unskilfulness or negligence of the plaintiff, he cannot recover. Thus, if a person were to cross a line of rail from one platform of a station to another, when another means of crossing was provided, and a train coming into the station at an unusual and improper speed were to run over and injure him, it is true in such a case there would be negligence on the part of the railway company, but there would also be such contributory negligence in the plaintiff as would probably disentitle him from recovering. The rule preventing the plaintiff from recovering when he has been guilty of contributory negligence is, however, subject to this limitation, that if the defendant, by the exercise of ordinary care on his part, might have avoided the consequences of the plaintiff's negligence, and yet does not choose to exercise such care, the plaintiff may still recover. (See Radley v. L. & N. W. Ry. Co., 46 L. J. H. L. 573.) This doctrine is well illustrated by the case of Davies v. Mann (10 M. & W. 546), known as the "Donkey case." Here the plaintiff had improperly left an ass with its forelegs tied together lying on the high-road. The defendant driving by, saw the donkey, and might easily, by the exercise 2. On or about the 9th August, 1876, the defendant's cart Claim called at the house where the plaintiff was in service for the of ordinary care, have passed by without injuring it, but instead of this he drove recklessly on and over the donkey; and for this act he was held liable in damages to the owner of the donkey. It is plain here that there was contributory negligence in the plaintiff-the owner of the donkey; but it was an act of negligence the consequences of which the defendant might easily have avoided, and on that ground he was held responsible. After all, this rule with respect to contributory negligence and its limitation would seem to come to little more than the doctrine laid down, not for the first time, in Jackson v. The Metropolitan Ry. Co. (supra), that the defendant has a right to require proof that the negligence on which the plaintiff relies was the direct and immediate cause of the injury. The question has frequently arisen how far a child of tender years can be guilty of contributory negligence so as to disentitle it from recovering. In one case (Lynch v. Nurdin, 1 Q. B. 29) there seemed a disposition to lay down that contributory negligence would not deprive a child of its right of action; but in Abbott v. Macfie and Hughes v. Macfie (L. J. 33 Ex. 177) the contrary was held; so in Mangan v. Atterton (L. R. 1 Ex. 239); and the law seems to be pretty well settled that contributory negligence may prevent a child from recovering, though probably an act which would be considered an act of contributory negligence on the part of an adult would not be so regarded in a child of tender years. The negligence of a person who has charge of a child will deprive the latter of any remedy for injury sustained. (Waite v. N. E. Ry. Co., L. J. 27 Q. B. 417; in error, L. J. 28 Q. B. 258.) See also Thorogood v. Bryan, 8 C. B. 115, and Armstrong v. L. & Y. Ry. Co. (L. R. 10 Ex. 47), for a similar rule applied to the negligence of those to whom a grown up person has confided himself. against master for the negli gence of his servant. How far a child can be guilty of contribu tory negli gence. A master not liable to one servant for the negligence of another servant. 4. Though a master is generally liable to a third person for the negligence of his servant, he is not liable to a servant for the negligence of a fellow-servant engaged in a common employment. Thus, where one servant overloaded a cart, whereby it broke down and injured the plaintiff, another servant, it was held that no action lay against the master. (Priestley v. Fowler, 3 M. & W. 1.) So where a bricklayer's labourer fell from a scaffold insufficiently erected by his fellow-labourers in the same employment. (Wigmore v. Jay, 5 Ex. 354.) The rule is the same if the person injured is a stranger who volunteers his services to assist such servants or labourers, and is injured while assisting them by their negligence. (Degg v. The Midland Ry. Co., L. J. 26 Ex. 171.) But where the consignee of goods assisted the servants of the railway company, and while so doing was injured by their negligence, held that the company were liable. (Wright v. L. & W. N. Ry. Co., 45 L. J. 570.) It must be carefully noted that it is not enough to free a master from liability that the servant injured and the servant causing the injury are both in his service; they must both be engaged in a common employment But both at the time of the accident; and in these cases there has frequently been a great dispute as to what constitutes a common employment. The pleader is referred for information on this head to Vose v. Lancashire Ry. Co., L. J. 27 Ex. 249; Waller v. S. E. Ry. Co., L. J. 32 Ex. 205; Morgan v. Vale of Neath Ry. Co., L. R. 1 Q. B. 149; Lavell v. Howell, 45 L. J. 387; Swainson v. N. E. Ry. Co., 38 L. T. N. S. 201. Though not liable to a servant for the negligence of another servant, a master is liable to his servant for his own personal negligence, and also for the negligence of one who may be regarded as the vice-principal or representative of the master. (Murphy v. Smith, 19 C. B. N. S. 361.) In Mellors v. Shan, L. J. 30 Q. B. 333, the plaintiff was injured by the servants must be engaged in a common employment. A master liable to a servant for his personal negli gence. Claim purpose of supplying ice, and owing to the negligence of the master for defendant by his servant, a block of ice weighing 1 cwt. was against the negli of his gence servant. What constitutes personal negligence in a master. At common law no remedy where person was killed by the negligence of another. Except where his personal estate was depreciated. Provisions of Lord negligence of one of two defendants, who was the manager of a mine, and personally superintended it. The Court decided that the other defendant was liable too. If the master fails to exercise due care and caution in the selection of his servants, and another servant is injured through the incompetency of one carelessly selected, the master is liable as for personal negligence. (Tarrant v. Webb, L. J. 25 C. P. 261.) A master is bound to take reasonable precautions to secure the safety of his workmen. Thus if he provide bad timber for a scaffold (Roberts v. Smith, 2 H. & N. 213), or if he knowingly allow the servant to use an unsafe and unprotected machine (Watling v. Oastler, L. R. 6 Ex. 73), the master may be liable. It has been decided that a pilot whom a shipowner is compelled to employ, is not the servant of the ship-owner so as to disentitle the pilot from recovering damages for an injury caused by the negligence of the crew. (Smith v. Steele, 44 L. J. Q. B. 60.) Before Lord Campbell's Act (the 9 & 10 Vict. c. 93) there was practically no remedy where the negligence of the defendant killed outright its victim. If he were only mangled he had his remedy; but if he died his representatives could not generally sue, for to such a case the maxim actio personalis moritur cum personâ applied. It is true that if the personal representatives could allege and prove that the personal estate of the deceased had been directly depreciated by his death, they might sue and recover. (See Bradshaw v. L. & Y. Ry. Co., L.JR. 1o C. P. 189.) And this right still remains to executors and administrators. In the vast majority of cases, however, this action provided no remedy for the more heart-rending cases where the bread-winner of the family had been suddenly cut off by the negligence of another; and accordingly the 9 & 10 Vict. c. 93 was enacted. It enables the personal representatives of the deceased to bring an action for the benefit of the wife, husband, parent (including in the term father, mother, grandfather, grandmother, stepfather, stepmother), or child (including in this term son, daughter, grandson, granddaughter, stepson, stepdaughter) of the deceased "whenever the death of a person is caused by any wrongful act, neglect or default Campbell's which would (if death had not ensued) have entitled the party injured to an Act. action." The jury can only give damages for actual pecuniary loss which the parties for whose benefit the action is brought have suffered; they can give no compensation for mental suffering or anguish, nor for funeral expenses, and they should take into account, in reduction of damages, the amounts which the parties have received under any policies of insurance. The essential ingredients in an action under the statute would seem to be: 1. Executor or administrator must bring the action within twelve months; or by 27 & 28 Vict. c. 95, s. 1, where there is no executor or administrator of the person killed, or there being such executor, &c., no action is brought within six months by him, the action may be brought by the persons beneficially interested in its result. 2. Action must be brought for the benefit of some one of the class of persons specified in the Act. 3. Negligence on the part of the defendant causing the death of the deceased. 4. Actual pecuniary loss to some one of the class of persons for whom the action is brought; but it would seem that the fact of the pecuniary loss need not be averred in the statement of claim. (Chapman v. Rothwell, L. J. 27 Q. B. 315.) Essential conditions to be satisfied when suing under this statute. Distinction between action under Lord Camp bell's Act, The action, which an executor or administrator may bring in respect of depreciation to the personal estate of the deceased, must be carefully distinguished from the action which executors or administrators may bring under Lord Campbell's Act (the 9 & 10 Vict. c. 93). The latter action is brought on behalf of a certain class of persons, the damages recovered master for allowed to fall on the plaintiff from a great height, whereby the Claim plaintiff was severely bruised and injured about the neck and against back and other parts of the body, and her shoulder was frac- the neglitured and dislocated, and she has become and is in consequence gence of his of the said injuries permanently disabled and disfigured. 3. The plaintiff has also incurred expenses for medical attendance, nursing, and surgical appliances, and for suitable food and nourishment, and she has been put to other expenses. She has also been, and will for a long time be, prevented from attending to her business by reason of the said injuries. The plaintiff claims £300 damages. Statement of Defence. servant. 1. The defendant does not admit that his servant was guilty Statement of any negligence in dealing with the block of ice mentioned in the 2nd paragraph of the statement of claim, and says that the injuries alleged to have been sustained by the plaintiff were not the result of any negligence on the part of his said servant. gence. 2. While the defendant's servant was endeavouring to con- Contribuvey the said block of ice through the area gateway and into tory neglithe house of the plaintiff's master, the plaintiff, without being required by her duty so to do, loitered in the said area, and needlessly and carelessly exposed herself to danger in the event of the said block of ice accidentally falling; and the defendant says that the plaintiff might, by the exercise of reasonable care and diligence, have avoided injury from the said accident. 3. The defendant does not admit that the plaintiff sustained the injuries mentioned in the 2nd and 3rd paragraphs of the statement of claim, or that she has incurred the expenses and has suffered or will suffer the losses in the said paragraphs mentioned. are divided amongst them alone, and the general estate of the deceased is not at all benefited by it; whereas the damages recovered in the former action go to swell the personal estate of the deceased, and are distributed in due course of administration. It follows from this that recovery by personal representatives in one form of action is no bar to their suing again in the other form of action the very same defendant in respect of the same negligence. So that where a man has been killed by the negligence of another, his executors may possibly first of all recover damages against him for injury to the personal estate, and then recover damages for the pecuniary loss which his near relatives have sustained by his death. H H and that for depreciation of personal injuries. |