of slinging a cask, caused the same to fall and kill two females, who were passing along the causeway. It appeared that there were three modes of slinging casks customary in Liverpool: one by slings passed round each end of the cask; a second by can hooks; and a third in the manner in which the prisoner had slung the cask, which caused the accident-namely, by a single rope round the centre of the cask. The cask was hoisted up to the fourth story of a warehouse, and on being pulled endways towards the door, it slipped from the rope as soon as it touched the floor of the room. Park, J., told the jury: "The double slings are undoubtedly the safest mode; but, if you think that the mode which the prisoner adopted was reasonably sufficient, you cannot convict him."(y)

Where the prisoner, who was an ironfounder, was employed to make twelve cannon, to celebrate the passing of the Reform Bill, and four of them were sent home and tried, and one of them burst under the touch-hole, and was sent back to the prisoner, with orders to have it melted up; but the prisoner returned it nailed down to a carriage, and there was some lead in it, which must have been put there to stop up the part which had burst, as it matched the former aperture; and the cannon, being loaded not heavier than usual, burst, and thereby killed the deceased, it was held that the prisoner was guilty of manslaughter.(z)

The prisoner had a firework-shop in the Westminster Road, where he had for some time carried on openly the business of selling fireworks. He had also a workshop at a neighbor's, named Sunter, and a factory at Peckham. He supplied Vauxhall and Cremorne, under contracts, with considerable quantities of fireworks. He made and kept his stock at the factory at Peckham, and from thence he used to take the supply necessary for the gardens daily to the house in Westminster Road, where they used to be kept for two or three hours before they were taken to the gardens. In Sunter's room the smaller sort of rockets were made, excepting the heads for holding the stars. These heads were added at the shop in Westminster Road. At the house in Westminster Road fireworks were offered for sale. No fireworks were made there except as follows:-First, the finishing the smaller rockets, and making the stars for them of combustible matter; secondly, making

fireworks called serpents; thirdly, making *cases and filling them with com*866] bustible matter, called red, blue, and green fires. (a) The fire was employed for filling colored cases used to imitate revolving lights in fireworks called wheels. These cases affixed were not used by themselves, but in connection with those fireworks, to add to their effect. The contents of the cases of fire made at the Westminster Road were combustible, and the red fire would explode if struck hard. Five or six pounds of fire were made every day in the house in Westminster Road, and filled there in the back room into cases with a rammer and mallet by persons employed for the purpose. At the time of the fire there was a quantity of the red and blue fire in the house, in the room where it was to be put into cases, in order to be used in the course of the business, and a quantity of fireworks for the evening. The prisoner being out of the house and not personally interfering, a fire broke out in the red and blue fire, which communicated to the fireworks, causing a rocket to cross the street and set fire to a house, in which the deceased was consequently burnt to death. The fire was accidental in the sense of not being wilful or designed. It did not happen through any personal interference or negligence of the prisoner; and he is entitled to the benefit of any distinction between its happening through negligence of his servants, or by pure accident without any such negligence. It was contended that there was no case, as the cases of red, &c., fire, were only parts of the fireworks, and not within the 9 & 10 Will. 3, c. 7; that it did not appear that it was by reason of making the fireworks that the mischief happened, and that the death was not the direct and immediate result of any wrong or omission on the prisoner's part. Willes, J., held that the prisoner was guilty of a misdemeanor in doing an act with intent to do what was forbidden by the statute, and

(y) Rigmaidon's case, 1 Lew. 180.

(z) Rex v. Carr, 8 C. & P. 163 (34 E. C. L. R.), Bayley and Gurney, BB., and Patteson, J.

(a) To this last part of the business the particular attention of the Judges was di

rected.

that, as the fire was occasioned by such misdemeanor, and without it would not have taken place, or could not have been of such a character as to cause the death, a case was made out; but, upon a case reserved, the conviction was held wrong, Cockburn, C. J.: "The keeping of the fireworks in the shop by the prisoner caused the death only by the superaddition of the negligence of some one else. By the negligence of the prisoner's servants the fireworks ignited, and the house in which the deceased was, was set on fire and death ensued. The keeping of the fireworks may be a nuisance; and if, from the unlawful act of the prisoner, death had ensued as a necessary and immediate consequence, the conviction might be upheld. The keeping of the fireworks, however, did not alone cause the death: plus that act of the prisoner there was the negligence of the prisoner's servants."(b)

*If a person driving a cart or other carriage, happen to kill another, and [*867 it appears that he might have seen the danger, but did not look before him. it will be manslaughter, for want of due circumspection. (c) Upon this subject the following case is reported :-A. was driving a cart with four horses, in the highway at Whitechapel; and he being in the cart, and the horses upon a trot, they threw down a woman, who was going the same way, with a burthen upon her head, and killed her. Holt, C. J., Tracy, J., Baron Bury, and the Recorder Lovel, held this to be only misadventure. But by Holt, C. J., if it had been in a street where people usually pass, it had been manslaughter.(d) But upon this case the following observations have been made :-"It must be taken for granted from this note of the case, that the accident happened in a highway, where people did not usually pass; for otherwise the circumstance of the driver's being in his cart, and going so much faster than is usual for carriages of that construction, savored much of negligence and impropriety; for it was extremely difficult, if not impossible, to stop the course of the horses suddenly, in order to avoid any person who could not get out of the way in time. And, indeed, such conduct, in a driver of such heavy carriages, might, under most circumstances, be thought to betoken a want of due care, if any, though but few, persons might probably pass by the same road. The greatest possible care is not to be expected, nor is it required: but whoever seeks to excuse himself for having unfortunately occasioned, by any act of his own, the death of another, ought at least to show that he took that care to avoid it, which persons in similar situations are accustomed to do.”(e)

It is the duty of every man who drives a carriage to drive it with such care and caution as to prevent, as far as is in his power, any injury to any person.1 And if

(b) Reg. v. Bennett, Bell C. C. 1. The case stated that the question of a nuisance, independent of the statute, was disposed of upon the facts in favor of the prisoner. Not a single authority or case was referred to in the argument, or by the Court: and this case seems deserving of reconsideration. The death would not have happened except for the unlawful act of the prisoner; for, unless the combustibles had been where they were, the death would not have occurred. If they had spontaneously ignited, or a stranger had accidentally ignited them by striking his nailed boots on the floor, it cannot be doubted that the prisoner would have been guilty of manslaughter; but it is said that the negligence of the servant exonerates the master. It is submitted that, in point of law, it has no such effect. A master may be criminally responsible for the wilful acts of his servants, where they are done in the course of their employment and for his profit: Rex v. Dixon, 3 M. & S. 11, and other cases, ante, p. 170; and à fortiori, he ought to be held to be criminally responsible for the negligence of his servants in his employment, where that employment is a dangerous one, and carried on unlawfully in a place where it is perilous to the public. "The law takes notice that occasional carelessness may be reckoned upon, and forbids that to be done which, on the recurrence of carelessness, will, in all probability, prove destructive to life:" Reg. v. Lister, D. & B., C. C. 209, ante, p. 440, and therefore a person, who carries on such an employment in such a place, must be taken to contemplate the carelessness of his servants as one of the natural consequences of his carrying it on, and ought to be held criminally responsible for it. See the principles laid down in Reg. v. Lister. The 9 & 10 Will. 3, c. 7, is repealed by the 23 & 24 Vict. c. 139, which amends the law relating to the making, keeping, and carriage of gunpowder and fireworks.

(c) Fost. 263.

(d) Anon., O. B., 1704; 1 East P. C. c. 5, s. 38, p. 263.

(e) 1 East P. C. c. 5, s. 38, pp. 263, 264.

1 Lee v. State, 1 Cold. 62.

death be caused to any person, by the rapidity of the driving, it is no answer that the driver called out to the deceased to get out of the way, which the deceased might have done if he had not been in a state of intoxication. On an indictment for manslaughter, it appeared that the deceased was walking along a road, in a state of intoxication: the prisoner was driving a cart drawn by two horses, without reins; the horses were cantering, and the prisoner was sitting in front of the cart; on seeing the deceased, he called to him twice to get out of the way, but from the state he was in, and the rapid pace of the horses, he could not do So, and one of

the cart wheels passed over *him, and he was killed; it was held, that if a *868] man drive a cart at an unusually rapid pace, whereby a person is killed, though he calls repeatedly to such person to get out of the way, if, from the rapidity of the driving, or from any other cause, the person cannot get out of the way time enough, but is killed, the driver is in law guilty of manslaughter; and that it is the duty of every man, who drives any carriage, to drive it with such care and caution as to prevent, as far as in his power, any accident or injury that may occur.(ƒ)

A foot passenger, though he may be infirm from disease, has a right to walk on the carriage-way, although there be a foot-path, and he is entitled to the exercise of reasonable care on the part of persons driving carriages along the carriage-way.(g) A tradesman was walking on a road, about two feet from the foot-path, after dark, but there were lamps at certain distances along the line of road, when the prisoner drove along in a cart drawn by one horse, at the rate of from eight to ten miles an hour, according to some witnesses, and of from six to seven miles an hour, according to other witnesses; the prisoner sat on some sacks, laid on the bottom of the cart, and he was near-sighted. Other persons, who were walking along the same road, had with considerable difficulty got out of the way of the prisoner's cart. Bolland, B., told the jury, that the question was, whether the prisoner, having the care of the cart, and being a near-sighted man, conducted himself in such a way as not to put in jeopardy the limbs and lives of his Majesty's subjects. If they thought he had conducted himself properly, they would say he was not guilty; but if they thought that he acted carelessly and negligently, they would pronounce him guilty of manslaughter.(h)

If, in consequence of a person sitting in a cart, instead of being at the horse's head, or by its side, death is occasioned, such person is guilty of manslaughter. Upon an indictment for manslaughter, the evidence was, that the prisoner, being employed to drive a cart. sat in the inside instead of attending at the horse's head, and while he was sitting there, the cart went over a child, who was gathering up flowers on the road. Bayley, B., held, that the prisoner, by being in the cart, instead of at the horse's head, or by its side, was guilty of negligence; and death having been caused by such negligence, he was guilty of manslaughter.(i)

If the driver of a carriage urges his horses to such a pace, that he loses the command over them, and thereby death is occasioned, he is guilty of manslaughter. So, if the driver be racing with another carriage, and, from being unable to pull his horses in time, his carriage is upset, and a person killed, the driver is guilty of manslaughter. Upon an indictment for manslaughter, it appeared that there were two omnibuses, which were running in opposition to each other, galloping along a road, and that the prisoner was driving that on which the deceased

up

*869] *sat, and the witnesses for the prosecution stated that the prisoner was whipping his horses just before his omnibus upset. The defence was, that the horses in the omnibus driven by the prisoner took fright and run away. Patteson, J.: "The question is whether you are satisfied that the prisoner was driving in such a negligent manner that, by reason of his gross negligence, he had lost the command of his horses; and that depends upon whether the horses were unruly, or whether you believe that he had been racing with the other omnibus, and had so urged his horses that he could not stop them; because, however he might be en

(f) Rex v. Walker, 1 C. & P. 320 (12 E. C. L. R.), Garrow, B.

(g) Boss v. Litton, 5 C. & P. 407 (24 E C. L. R.), Lord Denman, C. J.

(h) Rex v. Grout, 6 C. & P. 629 (25 E. C. L. R.), Bolland, B., and Park, J. A. J.

(i) Knight's case, 1 Lew. 168. In a similar case, Hullock, B., expressed a similar opinion: Ibid.

deavoring to stop them afterwards, if he had lost command of them by his own act, he would be answerable; for a man is not to say, 'I will race along a road, and when I am got beyond another carriage I will pull up.' If the prisoner did really race, and only when he had got past the other omnibus endeavored to pull up, he must be found guilty; but if you believe that he was run away with, without any act of his own, then he is not guilty. The main questions are, were the two omnibuses racing? and was the prisoner driving as fast as he could, in order to get past the other omnibus? and had he urged his horses to so rapid a pace, that he could not control them? If you are of that opinion you ought to convict him."(k)

Svindall and Osborne were indicted for the manslaughter of J. Durose. The prisoners, who were each driving a cart and horse, were seen two miles and a half from the place were the deceased was killed. Swindall there paid the toll, not only for that night, but for having passed with Osborne through the same gate a day or two before. They then appeared to be intoxicated. They were next seen at a bridge, over which they passed at a gallop, the one cart close behind the other. A person there told them to mind their driving; this was 990 yards from the place where the deceased was killed. They were next seen forty-seven yards beyond the place where the deceased was killed. The carts were then going at a quick trot, one closely following the other. At a turnpike-gate a quarter of a mile from that place Swindall, who appeared all along to have been driving the first cart, told the toll-gate keeper, "We have driven over an old man ;" and desired him to bring a light, and look at the name on the cart, on which Osborne pushed on his cart, and told Swindall to hold his bother, and they then started off at a quick pace. They were subsequently seen at two other places, at one of which Swindall said he had sold his concern to Osborne. The carts were loaded with pots from the potteries. The surgeon stated that the deceased had a mark on his body, which would correspond with the wheel of a cart, and also several other bruises, and although he could not say that both carts had passed over the body, it was possible that both might have done so. For the prosecution it was contended that it was perfectly immaterial in point of law whether one or both carts had passed over the deceased. The prisoners were in company, and had concurred in jointly driving furiously along the road; that it was an unlawful act, and as both had joined in it, each was responsible for the consequences, though they might arise from the act of the other. [*870 For the prisoners it was urged that the evidence only proved that one of the prisoners ran over the deceased, and that the other was entitled to be acquitted. Pollock, C. B.: "I think that is not so. I think the counsel for the Crown is right in his law. If two persons are in this way inciting each other to do an unlawful act, and one of them runs over a man, whether he be the first or the last, he would be equally liable. The person who runs over the man would be a principal in the first degree, and the other a principal in the second degree." And in summing up, Pollock, C. B., said: "The prisoners are charged with contributing to the death of the deceased by their negligence and improper conduct; and if they did so, it matters not whether he was deaf, or drunk, or negligent, or in part contributed is own death; for in this consists a great distinction between civil and criminal proceedings. If two coaches run against each other, and the drivers of both are to blame, neither of them has any remedy for damages against the other. But in the case of loss of life, the law takes a totally different view; for there each party is responsible for any blame that may ensue, however large the share may be; and so highly does the law value human life, that it admits of no justification wherever life has been lost, and the carelessness or negligence of any one person has contributed to the death of another person." And his Lordship then directed the jury on the other point in the manner above mentioned.()

On an indictment for manslaughter it appeared that the two prisoners were in a partial state of intoxication, and drove a gig along a road at a very rapid pace, and met three men, and at that time they were driving rapidly down a hill, the top of which was thickly shaded with trees, and when the three men got to the trees they found the deceased lying insensible in the middle of the road, presenting all the (k) Rex v. Timmins, 7 C. & P. 499 (32 E. C. L. R.), Patteson, J. (1) Reg. v. Swindall, 2 C. & K. 230 (61 E. C. L. R.).

appearance of having just been run over by some vehicle, and he shortly afterwards died. He had been deaf from his childhood, and had contracted an invererate habit of walking at all hours in the middle of the road, though he had been frequently warned of the probable consequence of doing so. It was contended that the prisoners ought to be acquitted, as the deceased had contributed to his own death. Rolfe, B.: "Whatever may have been the negligence of the deceased, I am clearly of opinion that the prisoners would not be thereby exonerated from the consequences of their own illegal acts, which would be traced to their negligent conduct, if any such existed. I am of opinion, that if any one should drive so rapidly along a great thoroughfare leading to a large town, as to be unable to avoid running over any pedestrian who may happen to be in the middle of the road, it is that degree of negligence in the conduct of a horse and gig which amounts to an illegal act in the eye of the law, and, if death ensues from the injuries then inflicted, the parties driving are guilty of manslaughter, even though considerable blame may be attributed to the deceased." "There is a very wide distinction between a civil action for pecuniary compensation for death arising from alleged negligence and a proceeding by way of indictment for manslaughter. The latter is a charge imputing

*criminal negligence, amounting to illegality; and there is no balance of *871] blame in charges of felony; but wherever it appears that death has been occasioned by the illegal act of another, that other is guilty of manslaughter in point of law, though it may be that he ought not to be severely punished. If the jury should be of opinion that the prisoners were driving along the road at too rapid a pace, considering the time and place, and were conducting themselves in a careless and negligent way in the management of the horse and gig, I am of opinion that such conduct amounts to illegality, and that the prisoners must be found guilty on this indictment, whatever may have been the negligence of the deceased himself." (m)

Upon a trial for manslaughter it appeared that the prisoner was standing up in a spring cart; the reins were not in his hands, but lying on the horse's back; while the horse was trotting down a hill with the cart, the deceased, a child about three years old, ran across the road before the horse, and the wheel of the cart knocked it down and killed it. It did not appear that the prisoner saw the child before the accident. Erle, J., told the jury, that if the prisoner had had the reins, and by using them could have saved the child, he was guilty of manslaughter; but if they thought he could not have saved the child by pulling the reins or otherwise by their assistance, they must acquit him.(n)

Where on an indictment for manslaughter it appeared that the deceased was knocked down by a car driven by the prisoner, and great numbers were in the streets at the time: Perrin, J., told the jury, that this unusual concourse of people, instead of offering any extenuation for the prisoner, or diminishing the criminality of his careless driving, if they found it to have been such, would but be a circumstance to add to it, and that it was his duty, as well as of all driving upon such occasions, to take more than ordinary precautions against accidents, and to use more than ordinary diligence for the safety of the public.(0)

A person driving a carriage is not bound to keep on the ordinary side of the road; but if he do not do so, he is bound to use more care and diligence, and keep a better look-out, that he may avoid any concussion, that would be requisite if he were to confine himself to his proper side of the road.(p)

If a person, riding in an improper and furious way along a road, cause the death of a person, it is manslaughter; but if two persons be riding in such an improper way, and death be caused by the second after the first has passed, the first is not respon

(m) Reg. v. Longbottom, 3 Cox C. C. 439. (0) Reg. v. Murray, 5 Cox C. C. 509.

(n) Reg. v. Dalloway, 2 Cox C. C. 273.

(p) Pluckwell v. Wilson, 5 C. & P. 375 (24 E. C. L. R.), Alderson, B. In Christian's note, 1 Bl. Com. 74, it is said "that the law of the road is that horses and carriages should respectively keep the left side of the road, and consequently in meeting should pass each other on the whip hand," and he adds that Judges have "so far confirmed it as to declare frequently at nisi prius that he who disregards this salutary rule is answerable in damages for all the consequences," and he cites Leame v. Bray, 3 East R. 593