398. In all cases of this sort, it is most important to distinguish between the weight of evidence to prove negli gence, and the existence of any evidence from which it can be inferred. In Cotton v. Wood, referred to above, Williams, J., said: "I wish to add that there is another rule as to leaving evidence to a jury, which is of the greatest importance, and that is, that where the evidence is equally consistent with either negligence or no negligence, it is not competent for the judge to leave it to the jury to find either alternative, but it must be taken as amounting to no proof at all." The same rule was laid down by Lord Cairns, C., in a case which is now the governing decision upon this point. He said: "The judge has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these seperate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury if, in a case where there are facts from which negligence may be reasonably inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever." 1

399. According to the rules of civil law, even although the defendant has been guilty of negligence, still, if that negligence would have been harmless only for equal or greater negligence on the part of the plaintiff, the latter cannot recover. This doctrine of contributory negli gence is not, however, a defence in criminal as it is in civil cases. The object of a suit is to recover damages for an injury, and it is fair that such damages should not

1 Metropolitan Ry. Co. v. Jackson, 3 App. Ca. 193, at p. 197; King v. Henderson (1898), at p. 733. So held by the Madras High Court (6 Mad. H.C. Rulings 32).

2 Radley v. London and North-Western Ry., 1 App. Ca. 754.

8 6 Mad. H.C. Rulings 32; Blenkinsop v. Ogden (1898), 1 Q.B. 783: post, 433.

be recovered, if the plaintiff has brought the harm upon himself. The object of an indictment is to protect the public, and it will be sustainable if the defendant has been in fault, even though someone else may have been equally in fault. The question will still be: Did he rashly or negligently do an act which was likely to endanger the public? If he did, the fact that the actual injury to a member of the public was brought about by the carelessness of the latter, will be no defence.

¶400. The word "injury," in ss. 279, 283, 285, 286, and 287, has been held by the Bombay High Court, in a case arising under s. 285, to include injury to the property of anyone as well as his life.1

In cases under s. 279 the defence will generally be that the act complained of was merely an accident; as, for instance, that a horse got out of control; 2 that the signals on a railway could not be seen at all, or in sufficient time, or the like. Where the defendant was convicted under s. 279 of rash riding on a public road, it was held unnecessary to show that any person was on the road at the time. The probability of danger to the public by the act was in itself sufficient. Similar considerations will arise under s. 280.

¶401. The offence dealt with by s. 282, is where a person conveys a passenger for hire in a vessel which is so unseaworthy, either from its own condition or from the way in which it is loaded, as to endanger his life. It is not sufficient that it was in that state; it must have been known by the defendant to be in such a state, or he must have occupied such a position that his ignorance of it amounts to negligence. The owner of a ship would be bound to take all proper precautions to ascertain whether his ship was seaworthy or not. The manager of a booking-office, at which passengers are supplied with tickets for any vessel they wish to select, would be under no such obligation. It is also to be remembered that seaworthiness is a relative term, and merely means fitness to perform the service which the vessel is about to undertake. A ship may be fit to undertake a small coasting voyage, with an ordinary cargo, when it would not be fit

1 Reg. v. Natha Lalla, 5 Bom. H.C. C.C. 67.

2 Hammack v. White, 11 C.B. N.S. 588; S.C. 31 L.J. C.P. 129; Manzoni v. Douglas, 6 Q.B.D. 145.

See Accident, ante, ¶ 170.

4 Reg. v. Hormusji, 19 Bom. 715.

to go to China in the typhoon season, or to carry a load of machinery. Where acts, which would otherwise come within this section, endanger the life of a person who is not being carried for hire, they will be punishable under s. 336.

1402. The offence constituted by s. 283, differs from that defined by s. 268 in this-that it is not necessary to show that the act complained of is a public nuisance. It is sufficient that it causes danger, obstruction, or injury, to any person in any public way or public line of navigation. Of course, an act which causes an injury, etc., to everyone, must necessarily be an injury done to anyone, but not vice versa. The liability results from the consequences to the individual harmed, not from any impropriety in the act itself. If there is a legal right to do the act, of course it is not punishable, unless improperly performed. Where a sewer had been made in a highway, or a fireplug had been fixed in it, under statutory authority, the defendant was not liable because the natural subsidence of the materials with which the trench had been properly filled left a hole in the highway, or because the wearing away of the road left the fireplug standing up, so that, in each case, a passer-by was injured. It would, of course, be otherwise, if the statutory authority was negligently or improperly carried out. A railway company which is authorized to carry its line across a public highway, with the obligation to provide gates and fences at the spot, is liable for injuries suffered by anyone who gets upon the line by reason of the absence of such gates and fences. Similarly, there are some acts which are so necessary to the ordinary enjoyment of property, that they are lawful, even though they cause a temporary obstruction to the highway, such as the stoppage of carts to unload goods into a warehouse, or the erection of a hoarding to protect the public while buildings are being repaired. But a private person is not at liberty to break up the highway to lay gas or water-pipes for the use of his house. The occasional inconvenience arising from 1 Kopitoff v. Wilson, 1 Q.B.D. 377.

2 Hyams v. Webster, L.R. 4 Q.B. 138; Moore v. Lambeth Waterworks, 17 Q.B.D. 462.

8 Williams v. Great Western Ry. Co., L.R. 9 Ex. 157; see as to injury resulting from a rotten fence; Harrold v. Watney (1898), 2 Q.B. 320. Herring v. Metropolitan Board of Works, 34 L.J. M.C. 224; S.C. 19 C.B. N.S. 510. 5 Reg. v. Longton Gas Co., 29 L.J. M.C. 118.

crowds of persons or carriages blocking up the road when a private entertainment is being given is not punishable, if reasonable precautions are taken to mitigate the evil; but it is a nuisance that the streets should be blocked up night after night by crowds waiting to enter a theatre, and it would be punishable, even though only a single person complained that access to his house was obstructed.1

403. It would seem that, under this section, danger, obstruction or injury to some person must be found either expressly, or, at all events, as a matter of necessary inference. When a policeman deposed that he "saw a bad-smelling net dried on the road by the side of the defendant's house, so as to cause obstruction to persons passing by," the Court held that this did not make it sufficiently "appear that obstruction was caused to any particular individual or individuals." But if the net had been hung so as to stop up the way, I imagine it would not have been necessary to prove that any particular person had in fact been obstructed. In a Bengal case it appeared that the defendants had set up a bamboo dam for the purpose of catching fish across the bed of a navigable river. It contained a movable portion, through which boats could pass, and it was guarded and lighted so as to prevent accidents happening. On these facts the High Court, without deciding whether there was any such injury to any particular person as was necessary to constitute an offence under s. 283, felt no doubt that the obstruction constituted a nuisance under s. 268, and was therefore punishable under the general clause, s. 290.3

Under this section also, as in all the similar cases. the danger or injury must be such as would naturally follow from the act. Therefore, where the facts were that the defendant, being possessed of land abutting on a public foot-way, excavated an area in the course of building a house immediately adjoining the foot-way, and left it unprotected, and a person walking in the night fell in, the defendant was held to be liable; though, in point of law, the party who fell in was off the road, and was in law a trespasser. But the contrary was held where a

1 Barber v. Penley (1893), 2 Ch. 447, where the whole law as to nuisance to highways is discussed.

* Reg. v. Khader Moidin, 4 Mad. 235; Reg. v. Beni Madhar, 25 Cal. 275. 3 Petition of Umesh Chandra, 14 Cal. 656.

• Barnes v. Ward, 9 C.B. 392; Hadley v. Taylor, L.R. 1 C.P. 53; and see Brown v. Eastern and Midland Ry. Co., 22 Q.B.D. 391.

man made a well in the middle of his field, through which there was a right-of-way, and a person, straying off the path at night, fell into it. Martin, B., after citing the last case with approval, said: "But when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case seems to be different. We do not see where the liability is to stop. A man going off a road in a dark night, and losing his way, may wander to any extent. We think the proper and true test of legal liability is, whether the excavation be substantially adjoining the way.'

"1

It

404. In Fletcher v. Rylands2 a doctrine was laid down which is frequently referred to as extending the liability of owners of property to consequences following from acts which were in themselves lawful, and which did not become unlawful by virtue of any negligence on the part of the proprietor. There a landholder had constructed a reservoir upon his land, the water from which had escaped through some old shafts, of which no one appears to have been aware, into the plaintiff's mine. was held that the defendant was liable on the ground, as expressed by Lord Cranworth, that "if a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage." And so Lord Cairns, C., spoke of this as being "a non-natural use of the land, for the purpose of introducing into the close that which in its natural condition was not in or upon it.' 8

¶ 405. This doctrine, however, is subject to two limitations. First, that it does not apply where the act, from which the injury arises, is the natural, proper, and necessary way of using the property, and is done for the public benefit, or for the common benefit of the person who does it, and the person who complains of it. As, for instance, 1 Hardcastle v. South Yorkshire Ry. Co., 28 L.J. Ex. 139; S.C. 4 H. & N. 67; Hounsell v. Smith, 29 L.J. C.P. 203; S.C. 7 C.B. N.S. 731; Binks v. South Yorkshire Ry. Co., 32 L.J. Q.B. 26; S.C. 3 B. & S. 244; see Rig.

v. Anthony Udayan, 6 Mad. 280.

2 L.R. 5 H.L. 330, at pp. 339, 340.

See, too, Smith v. Fletcher, 2 App. Ca. 781; Eastern and S. Africas Telegraph Co. v. Capetown Tramways (1902), A.C. 381.