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MAP.ee, Esq., SIl'DKNl'-A'l-T.AW. J.XNUAllY, l'^S2. f TOIION'l'O: J{(>\VSI':r,L& HUTCHISON. 1882. V VI . ii»»#» •"'^.'■;i-:;';ii(v . >"■'• '■ ^'^■•"'ww!^F'"»p■Plp^liil■>w^p■■■w■■p .» >•.« Mi" '- / #♦ .1 , ^^ /' A r^. No. 1. LAW LECTURES. SUBJECTS TORTS AND NEGLIGENCE, DELIVERED BEFORE THE LAW STUDENTS OF TORONTO, AT OSGOODE HALL BY JOSEPH E. McDOUGALL, Esq., BARRISTEU-AT-LAW, EXAMINER OF THE LAW SOCIETY ON CRIMINAL LAW AND TORTS. REPORTED AND PUBLISHED BY J. P. MABEE, Esq., STUDENT- AT- LAW. JANUARY, 1882. / TORONTO : ROWSELL & HUTCHISON. 1882. INTRODUCTION. I may say that the publication of these lectures was an idea entirely of my own, and that at the time the earlier ones wcie delivered, the learned lecturei- entertained no intention of putting them in print, and prepared the same voluntarily at the request of the Osgoode Literary and Legal Society for tlie benefit of those who were so fortunate as to be able to hear them, I do not know that I can better define the respective positions of Mr. McDougall and myself in cormection with this work than by publishing in lieu of a preface a letter received from him, under date December loth : — My Dkau Mabee.— I enclose you jiroof of the first lecture 1 delivered to the students under the auspices of the Osgoode Literary and Legal Society, having made some verbal and typographical corrections. The short- hand report taken by you is, I think, a faithful transcript of the lecture I delivered. I need hardl}' say to you that, although I have given my consent to the publication b^' you of this and other lectures 1 have delivered, and piopose to deliver, on Torts and N'.'gligence, I do not claim any originality in the text or material of the lectures. Prepared as they have been, in the midst of the duties demanded of a busy professional man, all I have been able, or even attempted to do, has been to select freely from well-known text writers, and leading decisions in the reports, such enunciation of the various principles as would, in the course of a short series of lectures, stimulate the enquiring minds amongst my audience to explore more closely the wide fields of inl'or- mation lying before tliem. The reference to leading cases in the English, Canadian, and Americim Reports will give, I trust, a more than passing value to your publication, and I observe with pleasure that in your industrious preparation of the text, you have thoughtfully added a number of cases to those cited by me. Wishing you every success, and trusting that the lectures may prove of sonic value to the students for whose benetit they have been delivered, and the venture no pecuniary loss to yourself, I remain. Yours sincerely, Joseph E. McDougall. I may add that I have endeavoured, in extending the list of cases, to select those bearing most nearly on the points discussed, and hope the publication may meet with the approval of the students, for the furtherance of whose interests they now appear. It is my intention to publish the series of lectures already delivered, and intended to be delivered, by Mr. McDougall on the subject of Is'egligence this winter — the lecture on Torts, being merely an intro- ductory one. These lectures, when completed, will make a small volume, which it is hoped will materially assist every student who may possess it in the preparation of his work for the Intermediate and Final Examinations. J. P. Mabee. TOUTS. FIRST LECTURE. According to Mr. Addison two things must com- bine or concur to constitute a tort: 1st, actual or leml damage to the plaintiff, or the person in whose .shoes the plaintiff .stands ; 2nd, a wrongful act committed by the defendant. It is a well known and ancient maxim that wherever there is a wrong there is a remedy ; and wlierevcr a right is invaded or infringed, even though the damage be purely nominal, an action will lie. The maxim de minimia non curat lex is not applicable in nctions of tort, for ever since the celebrated case of Ashhy v. While, 1 Smith's Leading Cases, 20'), 8th. ed., the opinion of Lord Holt, expressed in his judgment delivered in that case, has been accepted as sound law. 1'his celebrated judgment was a dissenting one, in which the learned Judge differed from all the other members of his Ccjurt, but he was subseipiently upheld by the House of Lords by a majority of fifty to six- teen, and ever since the date of that decision, it has been a recognized doct)-ine of the law of both England and America. From the time of the final decision of this ea.se down to the present day the Courts both in England and on this continent have acted upon the principle,an'! carried it out in their judg- ments, that where there is a legal injury, there is a damage in law; and even though this damage be not actual, still an action will lie, foi the law implies a legal damage from the infringement of such a right. Lord Holt .says in his judgment, that it is impossible to imagine any such thing as injuria sine darano, as eveiy injury imports a damage in the creation of it. Still there may be both injur}/ and damage, as the result of an act, and yet no right of action, ■fflSB^ for where no Irgiil right has been invaded, no nction will lie, however great the damage ; but, on the other hand, the invariable rule has been, thrt when a legal right has been invaded, a right of action accrues to the |»laintitt', even though no injury has resulted to him from such invasion. The decision in Aahbfj v. White, as described in the head note was, that " a man, who has a right to vote at an election for members of Parliament, may maintain an action against the returning officer, for refusing to admit his vote, though his right was never determined in Parliament, and though the persons for whom he ofiV'red his vote were elected ;"' and, as I have mentioned, this was the conclusion of the House of Lords. Since then the maxim before alluded to has never been questioned. See also Perrlng v. Harris, 2 Moo. & Rob. 5, where an action was held maintainable against an over- seer for omitting a parishioner's nau»e from ihe roll j)er quod, she was unable to obtain a l)eer license. In Mason v. Paynter, 1 Q. B. 974i, the plaintitf recovered against the sheriff for delay in the executicm of a writ, per quod the plaintiff incurred costs that he could have avoided had the sherirt' used more diligence. In Barnj v. Arnaad, 10 A. & E. C4;G, an action was held to be well founded, where a cu.stoms officer refused to sign a bill of entry without pay- ment of an excessive duty. That an action lies, by one who is legally entitled to vote, against an inspector or returning officer who improperly refuses to receive his ballot, see also Green v. Shaniway, 39 N. Y. 418 ; Godc/ieua V. Ulattheivson, Gl N. Y. 420 ; Bernier v. linssell, Hi) Ills. 60 ; Huher v, liiUy, 53 Penn. St. R. 112; Carter v. Harrison 5 Blackford (Ind. 138). In Davis v. Black, 1 Q. B. 900, the plaintiff recovered a verdict against a clergyman for refusing to marry him. This was, however, set aside ; but on the ground, that the declaration was bad in several respects, one of which wa» tliat it did not allege that the lady, w])om the plaintiff' was desirous of marrying, had made any request or signified her consent to the defendant in any way to the |)roposedf ceremony, it was remarked by Lord Denmivn, in his judc^- meiit in this caso, that, on proper pleadings^ the notion woukl have been well laid and maintainable. To show that our own Courts, by express decisions, ha vo attirincd tho doctrine laid down in Asliby v. WkiU, I need only cite a few cases. The first is that of Mitchell ▼. Barry, 20 U. C;. Q. B. 41G. The plaintiff in this case declared that he was entitled to the water of a certain stream for work- ing hi:-> mill, and complained that the defendant, owning higher up, had unlawfully deposited sawdust, bark, slabn^ etc., in the strean), which were carried down and choked up the plaintiff's mill pond ami races; the defendant, by hin second plea, denied the plaintiff's right to the water, which the plaintiff sutticiuntly pr(;ved, but there being no appre^ ciable damage, the jury f(jund a general verdict for tha defendant; it was h< . that there 'nust be a new trial, for the right being e.-^tablished, the deposit of the saw-duat and other refuse was an injury to it for whi^h the plaintiff was entitled to a vt idict. Another case is that of Plumb v. McGannon, 32 U. G. Q. B. 8. In connection with a deed uf certain land, ona O'Connor conveyed, as appurtenant to the land, a full, free, and unrestrained right of way in, over, upon, and along, and to use as a public highway or street, a certain strip of land twenty feet wide, adjoining the westerly side of tha said parcel of land, extending from a highway to the edge of the water in the river St. Lawrence, at all times and seasons for ever, in an action for obstructing the plaintiff's right of way, (although it was held to be a merely privata right,) by erecting a boat-house covering almost ten feet out of the twenty, partly above high water mark, it was held that the ohstruction without actual damage gave tha grantee a cause of action, for it was an interference with hi» easement, which if submitted to would of itself becoraa a right against him. Again, in Warren v. Deslippes, 33 U. C. Q. B. 59, wheie in trespass the defendant justified cutting the ditch complained of under an award of ienctt viewers, the jury found a verdict for the defendant on thi* issue, and on the general issue that there was no damaga* 8 Held, that as a right was invaded, the plaintiff was entitled to recover nominal damages on the general issue. From these cases you will see, that in our Courts no doctrine is established more clearly, than that whenever any legal right is invaded, an action will lie therefor, even though no actual damage results from the breach of duty, or wrongful act of the defendant. Now, what must we understand the expression lefial injury to mean ? It has been described b}' a celebrated English Judge, Wells, C. J., as a tortious act; biit, upon reading the cases, and considering some instances that one can readily suppose, this definition can hardl}' be said to be satisfactory. Suppose A. suffers a building owned by him upon a public street, or adjoining tlie premises of another, to fall into decay, and to become, though originally strong, weak, and ruinous through lack of repair, and that the building falls upon B., while passing along the public street, and injures him ; or, if it falls upon his house, or any property in the immediate neighborhood, and injures it, a Iegf.1 injury is thereby inflicted upon B., for which an action will lie against A., and that injury is as much a tort as though it had I'esulted from the direct act of A. Ao-ain, if a railway carriage, through detective consLruction or defective materials, breaks down and injnres a person law- fully riding therein, the com|)any are liable to the passenger in damages for such injury, if it could have been prevented by the exercise of any reasonabln care or foresight ; and the omission to make a careful inspection of the carriage, and the materials, used in the construction thereof, is, in law, a tort. So we see that the omission to do any act, which it is a duty to perform, as well as the connnission of any act, which prejudicially affects the legal right of another, are both of them torts, and we might therefore define legal injuiy to be, the doing of a tortious act, or the omission to perform a duty, whereoy damo/je is occasioned, actual or nomiwd, or, by such act or omission, a ler/al right is invaded. See Price v. Belcher, 4 C. B. 8GG ; Iveson v. Moore, 1 Ld. Raym. 48G, The most connnon class of cases m in which damage frequently arises from omitting to per- form duties, are tliose au:;)inst municipal corporations for neglecting to repair higlnvjtys, some injury being the resnlt; and there may be, perhaps, this distinction noted, that -wherever the inj iry occurs from tlie omission to do a particular duty, some damage must be shown, to entitle the plaintiff to recover ; while, as wa have seen, the positive commission of a tortious act, \vhei-el)y a legal right is invaded, is actionable, even though no appreciable damage can bo proven. Now, we also find, that as to a very largo class of action- able torts, it is of no iinpoi-tanco as to what motive may have actuated the tort-fcaf^or, for every jierson is bound, at his poiil, to so conduct himself, and to so use and manage his property, as not to infringe the rights of another, and, failing in this, the motive which caused the particular deed or omission, will not fi-ee him from liability. We can illus- trate this by a very common class of torts, viz. : Xuisances — A man may have no ill will or motive to cause his neighbour damage, yet if he have, or carry on any particular trade or business, wliich, by reason of the manner it is con- ducted, becomes in law a nuisance, he will be liable to whoever can show damages. .So, too, if you should tui-n suddeidy around and knock a man down without int-niling it, you would be res)X)nsible for the injury you did him, yet on the other hand, a man may sustain very seiit)us and heavy damage, in consecpience of the act of another, and still tliat other will not be respon- sible, because, if the damagi' lie the result of inevitable acci:3. Now my other frost case came to a diffevcv;' a .-;>^sion, »s I have said. There the water, which had t' .k ^a down 41 waste pipe at a railway station on to the plaf id, had become frozen. The plaintifl", a passenger, .stepped upon it, fell, and was injured, and the Court held the defendants, the railway company, liable, on the ground, that the non- removal of a (lungeroitH nu'mtncc like ice, from their premises, was the proximate cause of the injury : 8hep- 15 herd y. Midland R W. Co., 25 L. T. N. S. 879 ; 20 Weekly Reporter 705. See also, The George and, Richard, L. R. 3 A. & E. 400. I now propose to revert for a moment to the principle, I havu before drawn your iittention to, thfit wherever a IcLjal right is invaded, nominjil damages may be recovered, even though no actual damage be sustained ; and, for the pur- pose of illustration, will give you a few instances of its application. Every unauthorized interference b)' a man with the goods and chattels of another, or his perscmal property, con- 6titutes a tort, and gives rise to a cause of action, although no pecuniary damage may result. If one of you have a certificate of good character, and I write impropeily on it, BO as to deface it, or otherwise alter its meaning, I am guilty of a tort, and liable to an action, and this though you can prove no pecuniary damage. Again, as Lord llolt puts it, if a man gets a cuff on the car from another, though it cost him nothing, yet he shall have bis action for it as a pei'sonal damage. So a mere trespass is actionable. If I ride over your ground, though no pecuniary damage is done, yet it is an invasion of your property ; and, although the damage in this case is imper- ce[)til!le, yet if I repeat my trespass after being warned or forbidden to do so, you may recover exemplary damages a<^ainst n)e for my persistent wrong-doing. See Sears v. Lyovfi, 2 Stark. .'U8 ; Merest v. Ifervey, 5 Taunt. 441. In the American notes to a loadinu; text book I find the following interestiiig case, where the principle above com- mented on, is fully sustained and enforced. The plaintiff brought an action for an injunction to restr.iin the defendant, who carried on the business of slaughtering cattle, near their premises, from discharging the blood and I'efuse of the catile killed there, into a stream that flowed through the plaintiff's premises, or from in any manner polluting the water of the stream. The defendants insisted that they did not discharge the refuse from their works into the stream, and that the 10 stream was given over to secondary uses, before their woiks were establislieil there (meaning by this that the stream was given over to other than the ordinary uses of a strejun, as fishing, drinking, &c.) ; or that the the plaintiii', by acquiescing in its being used for these extraordinary pur- poses, luul lost their usual prescriptive right. The Court sulimitted the questicm to the jury, with instructions to find whether the stream had previously been given over to secondary uses, and, if so, whether the defendants appre- ciably increased the pollution, and, if they found in the affirmative, to say what damage the |)hiintiff sustained therefrom. The jury ibund that the stream had previously been given over to secondary uses, that the defendants appreciably increased the pollution, but that the plaiiitijfs sustained no danvirjc. thorffom ; it was held under this . verdict that the plaiiititl* was entitled to nominal damages. {Ovpluin Asylum v. Schivaltz, N. Y. Circuit, 1875, tried before Westbrook, J.) So the refusal of a banker to pay the cheque of his cust(mier, he having in his hands sufficient funds of the customer therefor at the time, is a wrongful act, and being injurious to the credit of the customer, entitles him to reeovev substantial damage, even though no actual damage can be proved at the trial : Marzetti v. Williams, 1 B. Si, Ad. 415 ; Rolln v. Stcuurd, 14 C. B, 5<)o. We have now j-un over briefly the main incidents which characterize a tort, and I have endeavored, and I hope not without some success, to show you some of the most impor- tant variations of liability, and a few of the principles which govern the Courts in estimating the damage, or deciding upon the question as to when a wrong is action- able, and we have seen as well, that a most serious damaci'e and injury may be sustained, and yet no cause of action arise. I now purpose briefly to discuss the salient distinc- tions between jiublic and private ivroiujs, and incidentally, what limitation is imposed upon a sufferer, in pursuino- his legal remedies, in a civil Court, when the injury committed amounts under our criminal code to a crime. 17 The distinction between public wrongs and private, of crimes and misdenicMiiors, from civil injuries, seems princi- pally to consist in this : private wrongs, or civil injuries, are an infriiigemoiit or privation of the civil rights, which belong to individuals, consifierecZ mcrelij as individuals; public wrongs, or crimes and misdemeanors, are breaches and violation of the public rights and u'V.ies due to the whole community, considered as a community, in its social aggregate capacity. If I detain a field from another man, to Avhich the law has given him a right, this is a civil injury and not a crime, for here onl}'' the right of an indi- vidual is concerned, and it is immaterial to the public which of us is in possession of tlie land ; but treason, mur- der, and robbeiy are properly ranked amongst crimes, since besides the injury done individuals, they strike at the very existence of society, which cannot possibly exist where actions of this sort are permitted to pass unquestioned. In all cases the crime includes an injury. Every public offence is also a private wrong, and something more : it affects the individual, and it also atFects the community. For exjimple, treason in imagining the Queen's death involves in it conspiracy against an individual, which is also a civil injury, but as this species of treason, in its Con- se juence, principally tends to the dissolution of govern- ment, and the destruction thereby of order and peace of society, this constitutes a crime of the highest magnitude. Murder is an injury of the most extreme kind to an indi- vidual, but the law of society considers principally the loss which the state sustains by being deprived of a mem- ber, and the dangerous and pernicious example set others, and consequently we have the most extreme punishment known to the law the result of such an act. Robbery may be considered in the same way. It is an injury to private property, but were that all, a civil action and damages might be a sufficient remedy, but the public mischief of such an act is what our criminal law provides for in making robbery an offence of so serious a nature^ and providing therefor such exemplary punishment. ii 18 We will observe, then, that the distinction between pub- lic crimes, and private injuries, seems to be created by positive laws. Every violation of a moral law or natural obligation is an injury, for which the offender ought to make retribution to the individuals, who immediately suffer from it, and when it also amounts to a crime, he ought to be punished' to the extent that would deter both him and others from repeating the ofi'ence. In positive law these acts are called iiijariei^ for which the Legislature has only retribution, or eonipensiition in -damages, but, when from experience it is discovered that this is not sufficient to restiain, within moderate bounds, certain classes of injuries, it then becomes necessary for the legislative power to create them ci'imes, thereby endeavoring to re))ress them by the tenor of punishment. The word criine then has a technical meanijig in our law. It would appear to have reference to tho.se acts, which, by positive law or enactment, the comndssion of them, subjects the ofiender to punishment. You often hear the expression lugh crime, the word hii/ft has no significa- tion, except to give greater solemnity to the charge. Now the public remedy for torts is gencM-ally by indict- -ment, or by suit at the relation of the Attorney-General as representing the public. It is often a matter of extreme nicety and difficulty to decide in what cases, injuries amounting to public AvrongSjarc actionable by an indivi- dual. The general rule may perhaps be stated to be, that if the individual suffers any special injury, different in kind from that suffered by the general public, such individual will have his separate i-ight of action for compen.sation in damages. The best way I car. show you, how this rule is applied^ is perhaps by giving you a few examples. Suppose a high- way obstructed so as to impede the passage of the general public, the remedy would be by indictment, but if some particular individual was injured in some way beyond that •sustained by the general public, as by being delayed in making a journey of importance, or compelled to take a 19 circuitous course, or drive acjainst the obstruction on a dark night, he could sue for the imlividual injury: ^f<>tt v. SchooWred, 13 Eug. Rep. 582 ; Fort Plaiit, Ac, v. Sviith, 30 N. Y. G-2 ; McDonald v. English, Ho Ills. 232. In one ca.sc the plaiiitifi" was navigating a public navi- gable river with goods, and he was impeded in his progress by a vessel, which the defendant had wrongfully moored across tht stream, and the plaintiff, in consequence of the obstruction, »vas compelled to unload his bai-go, and carry his goods by land to their destination. It was held that the plaintiff was entitled from the defendant all the expenses of the land carriage of his merchandize: Rose v. Miles, -^U.,^ S. 101. Another case was as follows: The plaintiff brought his action for damages occasioned by an obstruction in a public tidal river. The declaration set ont that he carried on the business of an innkeeper in a house abutting on the river, and that the defendant placed beams and spars in the water, which floated backwards and forwards with the tide, and obstructed the access to the plaintiff's house at certain period.s, whereby the plaintiff's customers were prevented from coming to his house for refreshments ; and it was held that this was specific damage to the plaintiff, resulting from the public nuisance Avhich entitled hini to an action for damages : Jlo.se v. Givvcs, 5 M. & G. 013 ; sec Jladlcy v. Taylor, L. R. 1 C. P. 53 ; Benjamiii v. Stov)', L. R. 9 C. R 400, 10 Eng. Rep. 231. Whenever a to>t amounts to a felony, the i-emedy for the tort or civil wrong is postponed or suspended, until the requirements of public justice have been satisfied by the pvo-iecution of the oft'onder, and, alter the party upon whom suspicion has fixed has been convicted, or acipptted, wiLhout collusion, the ]U'osecutor may support an action for the same cause as that on which tiie criminal prosecution was founded. Wh.at is meant then by the expression, that a tr, spass merges in a felony, is that all redress by action for the private injury is suspended, imtil the criminal law has been put in force. As Mr. Addison says, it was never intended 20 to take away rodress absolutely, after the ends of public justice were attained, but only to stiuiulato the party injuretl to briiij; the otfender to trial for the public oHenco, and to prevent any conipronnso t])ereof. We have, however, a law upon our statute books, with reference to personal injury, which somewhat invades tliis rule, enactin,!^ " that whenever the death of a ])erson has been cau ed by sucii wronj^ful act, neglect, or delault, as would, (if death had nob resulted,) have entitled the party injured to maintain an action and recover danisiges in respect thereof, in sueh case the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstanccfi as aiiiount in laiv to a felony." : 11. S. 0. ch. 12S, sec. 2. Si'ction ,1 of the siunc Act makes ])rovision for whoso benefit such an action would be for, viz. : "the wife, hus- band, parent, and child of the person wIkjhc death has been so caused," and it is to be brought by the executor, or administrator of the deceased. Section 5 provides that only one action will lie for the same subject matter, and limits the time within which it may be brought to twelve months after the death of the deceased person. ."■^. r' 21 ■•. with It's tliis ^n htiH rt'.s in ' to an [(-T.son NEGLiar:xcR. SECOND LECTURE. Ncgllfjonce, usually understooil, is a word of oxce«j'litigly broad iuoaiiin<:j. It would include alinost every breach of duty not clearly intentional. Thus a man is snid to neglect to pay his debts, to perform his contracts; and should the word be used in this sense it woulil cover a large Held. This, however, is not the meiuiing applied to the word in law. I think in correct legal phraseology neqlUjcnce may bo described as more neai'ly synonomous with carcle.'n^ii.csa thnn almost any other word. It signifies primarily, the want of care, caution, atten- tion, diligence, skill, or discretion in the |)errormance of an act by one having no positive intention to injure the per- son complfuning thereof. When such intention exists, the net ceases to be mei'ely negligent, and becomes one of violence or fraud ; that is to say, if tiiere is an ivtenfloii to do the injuiy, it cannot merely be said to bo negligent. The secondary meaning of negligence includes every omission to perform a duty imposed by law, for the avoidance of injuiy, to i)er.sons or property. The action of negligence, then, we may gather, proceeds from the idea of an oliligation on the part of the defendant towards the plaintiff to use care, and a breach of that obligation ta the plaintiff's injury. As a rule there must be aHirinative proof of negligence on the part of the defendant to sui)porfc an action, for where it is an even balance on the evidence, whether the injury has resulted from the want of proper care, on the one side or on the other, the paity who founds his claim on the imputation 22 , \ i 1 ' of negligence fnils in his action. But in the case of acci- dents from machinery, where the accident is one which would not in nil probability have happened had the person causin"- it used due care, and tiie actual machine givins: rise to the damage is solely under the management of the defendant, it has been held that the mere occurrence of the accident is suthcient 'prima fucie proof of negligence to impose upon the defendant the onus of rebutting it: Scott V. London Duck Co., 34 L. J. Ex. 220; Bi-i(j[js v. Olioer, 35 L. J. Ex. 1G3; Czech v. General Steam Naviga- tion Co., L. R. 3 (J. P. 14. The daniage must be i^roxlmatdy caused by the negli- gence, and must not be the immediate result of any i'lter- veniiig negligence on the pai't of the phiintitf himself, for if tlie plaintiff's own negligence has directly conduced to the damage lie has sustained, he is deemed to be the author of his own nusfortune, and cannot therefore seek to make others responsible ; eonseijuently a plea of contributory neyligencc, in most cases, if |)roved, constitutes a good defence to such an action: Grieve v. Ontario Stcamhuat Go., 4 C. P. 387; \Mnc!der v. Great Wester a R. W. Co., IS (J. R 251) ; McGuniijal v. Grand Trunk R. TK. Co., 33 Q. B. U. G. U)4. When a man hid £100 in some hay in an old nail-bag, and delivered it to a connnon carrier to be carried to London, and the money was lost, it Avas held that the com- mon carrier was not responsible for the loss, as the con- signor had neglected to iidbrm the ciurier of the value of the bag, and had thereby not enabled him to take projjcr care of it : Gibbon v. P(ujnto)i,4< Burr, 2301. If glass, china, or other frail articles requiring great care lor their safe conveyance, are put carelessly into boxes, and delivered to a eanier for conveyance, without notice to him of their character, and are damaged in transit the c;irrier will not be bound to make good the loss, on account of the contributory negligence of the sender in concealing the peculiar nature of the ;irticle,s, thus keeping from the know- ledge of the carrier the additional care requisite to their safe conveyance. ■Ifi lacci- piich [r.soa tho [■0 of 'fice it; V. tga- Wherc, therefore, the iinmediate an14. Tiiei-e some brickbiyers, employed by the defendant, had wrongfully laid several barrowsful of lime and I'ubbish before the defendant's door, by the side of a highway, and Avhile the plaintiff was ])assing in his car- riage, tlie wind raised a whii'lwind of tliis rubbish, which frightened the plaintiti"s horse, and caused him to start to one side, in the direction of an appr(;!iching waggon ; the plaintirt', to prevent the horse I'roiu ruiunng against the waggon, pulled him arouml shar|»ly, wlien the horse ran over a lime heap belore another man's door, broke the shaft by the shock, and the horsf Ix'ing then more fright(ined, ran aw;iy, upset the carriage, thi'ew the plaintiff out and injured him, it was held that although the defendant was to blame for putting the ruhbish by the side of the I'oad, yet if the plaintiff 's rumiing against the second heap of rubbish, was owing to his pu'ling the horse around too sharply, the immediate cause of the injury was his own unskilfulness in the management of the horse, rather than the ori-" lal wrongful act of the defendant : Buh/i- v. Steinmau, 1 Bos. .^' Pull. 4()S. The case of SherivooU v. Tlie Corporation of Hamilton, 'M U. C. Q. B. 410, is interesting antl in point here. The plaintiff, with a waggon and load of bricks, was coming down a hill on the roatl by the side of a precipice. He had stopped to speak to some one, when on stalling again the liorses ran away, and, wlu n they came to an opening in the fence or railing along the road, near th(> loot of the hill, they bolted tlnough it and down the precipice. At the trial the plaintiff was nonsuited, on the groun:! that the proximate cause of the accident was t!ie horses getting :'4 beyond the plaintiff's control, not the cK-fect in the fence; but, on an application for a new trial, it was held, that the mere fact of the horses running away and becoming unmanageable would not prevent the p'.aintitl" ihnn recovering, unless he had been guilty of want of reasonable care or skill, which was a question for the jury; and the nonsuit therefore was set aside. The rule as laid down in that case is as follows: Where two causes combine to produce the injury, both in their nature proximate, the one being the defect in the highway, and the other some occur- rence for which neither party was responsible, the corpo- ration is liable, provided the injury woidd not have been sustained but for the defect in the highway : Mchatyve v. Buchanan, 14 U. C. Q. B. o8l , Bracllei/ v. Browv, Vrl M. C. Q. B. 4G3 ; Hutfou, y.Corporation of Wiuchoi', 34 U. C. Q. B. 487; Price v. Cataraqiii Bridr/e Co., tio JJ. C. Q. B. ol4 ; Boyle V. The Corporation of Dun(J((s, 27 C. P. 121) ; Burns V. The Corporation of Toronto, 42 U. C. Q. B. oGO ; Moore \. Inhabitants of Abbott, 82 Maine, 40; Farrar v. In- habitaitts of Greene, lb. 574; Coombs v. Inhahitant)^ of Topsham, :}8 Maine, 204; Anderson v. Ci/ij of Bath, 4^2 Maine, o4() ; Moidton v. hduitntants of Sanford, ol Maine, 127; Winskip v. Enjicld, 42 N. 11. 197; Chir/c V. Barrinrjton, 41 N. H. 44; TacWr v. ITenniker, lb. 317; Notrls v. Litchfield, V^:) X. H. 271; Ihnit v. Town of Poivna.l, 9 Venn. 411; P- a^'ainst a pole, upset and injured the plaintiff. It was proved that the path-master knew the poles were there. Held, tli;it the diivcr was guilty of conti'ibutory negligences, and that the plaintiH' therefore could not recover,although the defendants would oth(-r\vise hiive been liable: Cornish v. The 7 OV'i )itO St net R>/. Co., 23 C. P. 35'); II id ton v. Corpomfian of Wind- sor, 3i fj. C. Q. B. 487. In Holmes v. The MidlamJUn, 35 U. C. Q. B. 2')3, the plaintiM' was employed by the defen- dants to cut down the trais o!> his own land, within one hun- dred ieet of the centre of the track, undd' the Railwi^y Act, 0. S. 0. cap. GG, sub-sec. U of see. 9 ; and he felled theui lengthwise with the track, and left tlieni Iviu'^' there. In an action for damau'es for lire, caused lis' the defendants loco- motive, wdiich extended to the plaintiff's land, it was held that, under the circumstances, tlu; plaintiff was not guilty of contributory negligence in having left the trees felled by him on his own land: Jdtj'r''/ v. T/ie Toronto, Gre.i/, and B race 24 C. P. 271. In Nicholh v. The Great U'rst er:i li]j. Co., 27 U. C. Q. B. 2S2, the driver of a cab, who disregarded the plaintiff s request to sty rea.son of the driver's ai-'eiil carelessness. the plaintiff nevertheless was held to have contributed to the accident, and not therefoie entitled to recover. In Rastrlck v. The Great Western II W. Co., 27 U. C Q. B. 3f)(), the jury were directed that if th(\v were satistie 1 the accident would n-jf have hajii^encl, if the defendants had erected proper fences, they should find for the plaintiff. Held a nd.sdirection, for if tlie driver by his ne-ligenco contributed to the accii:,iv>jv. .Montreal Telejeaph C < ■) C. Q. B. 577 ; Bradleu v. Brown. 32 U. C. Q. B. 4G3. U. As I 2G to the amount of negligence, or want of reasonable care, on the part of tlic plaintiff necessary to estop him from recovering, it has been laid down that it is not avy negli- gence that will preclude him, but that though there has been negligence on the part of the plaintiff, still he may- recover, unless the defendant could not, from the exercise of ordinary care, have avoided the consequence of the plaintiff's negligence ; Dnrics v. Mann, 10 M. & W, 546 ; Tiitfy. Wdvman, 2 C. B. N. S. 740. In Dowdl V, IVic General Steam Navhjation Co., .') E. & B. 195, Lord Ciunpbell says, " In some cases there may have been negligence on the part of the plaintiff remotely connected with the accident ; and in those cases the ques- tion arises, whether the defendant by the exercise of ordi- nary care and skill might have avoiiled the accident, not- withstimding the negligence of the plaintiff, as in the often quoted donkei/ case of Davies v. Afann. There, although without the negligence of the [jlaintiff, the acci- dent could not have happened, that negligence is not sup- posed to have contrilnited to the accident within the rule v.pon this subject ; and, if the accident might have been avoided Uy the exercise of ordinary care and skill on the part of the defendant ; to his gro.ss negligence it is entirely ascribed, he and he only, proximately causing the loss." In tlie case of Ljjncli. v. Nurdin, 1 Q. B, 38, the defen- dant left his horse and cart lor a long time unattended in the street, where some children were at play, and some of the boys got into the cart, and another led it on to give them a ride, and one of then fell off the shafts and trot his leg crushed under the wheel ; it was held that the defen- dant was responsible for the fall and the broken leg, and that the boy, in consequence of his tender years and natural instinct for play, could not be considered legally responsiiile for the damage he had sustained so as to preclude himself from recovering from the defendant. This case was afterwards, if not absolutely ovei'ruled, called Very niuch into queston. When the defendant left the Avooden covering of a cellar leaning against the wall, and tho ; m n S7 plaintiff, a child of seven years old, got upon it in play, by the means of wliieh it fell upon him and he '.vas iiijureil, it was held he could not recover: Abbott v. Mucfw, 2 H. & C. 74*4. Ne^i^ligeiice is not always necessarily culpable. There are many cases in whicii it niiulit be desirable that a greater degree of care should be used than the case reijuire.l, but it is only the lack of such care or diligtMice as tlio law demands in the particular case which consti- tutes culpable negligence ; neither does the law make any unreasonable demands. It does not, as one writer remark-s, require fi'oin any man superhuman wisdom or foresight. Therefore no one is guilty ot'culpabL' negligence by reason of fuling to t;ike pi'ecautions, which no other man would be likely to take under similar circu-i;stancos. If one use every precaution which the present stateof science affords, and which any reasonable man would use, he is not held responsible f::- mitting other precaution.s, which might be cunecived of, oven though had he used them the injury would most surely have been avoided. A railway com- pany is not liable for injuries caused by sparks from its locomotives, when it has used the most modern and approved of appliances to extinguish them, and kept a reasonable watch on its track ; even though mischief might not have I'csulted had the company seen fit to keep an army of me;; along its line, for the purpose of suppressing any tire that might arise : VaiL exposed. Now if you were ent.-usted with the care of "half a ton of coal, and a dozen diamon.ls, (both of them by the way a form of carbon), a much ditlei-- ent degree of thought and piotection would be required in regard to each." It w..uld doubtless be suliicient to place°the coal in the coal bin in your yard, but you would hardly expect to escape the consequence of so I'ash an act if you placed the diamonds in the same place ; you would no e loubt be expected to exercise a somewhat greater def'reo of care in regai 1 to the more valuable articles. 1 think we have now a pretty clear idea of what is, and what is not n(!glij;;cnco, ami the principles which regnhito the dcuision of tho question ; lot us now take upsouu! specilied Buhjects atifl oiideavour to derive nomo benefit by a httlo re.sea''ch into tlic boundaries set by establish(!d cases to tlio responsibility of individuals in each specilied subject. Let us t!dj. Co., 64 N. 5f. 129,; Hhjijins V. The Watevvllet Turnpike Co., 40 N. Y. 23.; Sanfonl v. The Eighth Avenue Ry. Co.. 23 N. Y. 343; Lovett V. Salem,