Law of Evidence.

PART IV.-Continued.

979

NUISANCE.

UNDER the present title, the evidence relating to some torts or nuisances to persons or personal property, and 2dly, to real property, will be considered, which are unconnett ed with any immediate contract, but which do not amount to trespasses, the damage being purely consequential. În an action for a wrongful act, or nuisance to his person, or personal property, the plaintiff must prove, 1st, a wrongful act or omission; 2dly, by the defendant; 3dly, the consequential damage to his own person or property (o).

PART

IV.

First. The rule of common law is that of the civil law, Proof of the sic utere tuo ut alienum non lædas; and an action is main- nuisance. tainable to recover damages for any injury resulting to the person or property of the plaintiff, from the carelessness and negligence of the defendant, or of his agent, in the use or management of his own property (i).

(0) A gratuitous bailee of a horse may maintain an action for negligence in not repairing a fence, which the defendant is bound to repair, by means of which the horse is injured. Rooth v. Wilson, 1 B. & A. 59.

(i) As if he exercises unruly horses in an improper place (Michael v. Alestree, 2 Lev. 172), or intrust a dangerous instrument, such as a loaded gun, to an indiscreet agent (Dixon v. Bell, 1 Starkie's C. 287; 5 M. & S. 198.) or where his barge having been sunk by accident in a navigable river, he neglects to give proper notice of the fact, as by placing a buoy over the spot (Harmond v. Pearson, 1 Camp. 517); or the occupier of a house neglects to fence in a dangerous area, although it has immemorially remained open (Cou

PART

IV.

Nuisance, Mischievous animal.

*The evidence in an action for the negligent keeping of an animal, which has, in consequence, occasioned damage to the plaintiff, must of course be governed by the pleadings. If the declaration allege that the defendant knew that his dog, or other animal, was accustomed to bite sheep, or to bite mankind, the allegation must be proved, although the action might have been sustained without that averment (k). If it be alleged that the defendant knew that the dog was accustomed to bite sheep, it is not enough to show that it had attempted to bite a man (1). Where the declaration alleged that the dog was accustomed to bite mankind, proof that the defendant had warned the witness to beware of the dog, lest he should be bitten, was held to be prima facie evidence of the allegation to be left to the jury (m); although mere proof that the dog was fierce, and * 981 usually tied up, and that the defendant afterwards pro

pland v. Hardingham, 3 Camp. 396). A corporate body intrusted with a power from the exercise of which mischief may result to the public, are bound to use the greatest caution (Weld v. Gas Light Company, 1Starkie's C. 189). So if a person place dangerous traps in his own ground, baited with flesh, so near to the highway, or to the grounds of another, that dogs passing along the highway, or kept his neighbours' grounds, are likely to be attracted, and the plaintiff's dogs are in consequence injured. Townsend v. Wathen, 9. East, 277. See Ilott v. Wilkes, 3 B. & A. 304. See the case of Dean v, Clayton, 1 Moore, 203; 2 Marsh. 577; 7 Taunt. 489. The defendant had placed sharp spears in his premises in such a manner that a hare would run under them, but a dog pursuing a hare would be wounded, and there were several public foot-paths through the defendant's woodland not fenced off, and on the outside of the woodland notices were painted that dog-spikes were set therein; a hare was started by the plaintiff's dog in the land of J. T. which adjoined the defendant's woodland, in which land of J. T. the plaintiff had liberty to sport; the dog started a hare in the land of J. T. and pursued it, the plaintiff using every means in his power to prevent such pursuit into the woodland of the defendant, and ran against a spike and was killed. The judges of the Court of Common Pleas were equally divided on the question, whether an action was maintainable. In the later case of Ilott v. Wilkes, 3 B. & A. 304, for setting spring-guns on the defendant's lands, and negligently leaving them there, whereby the plaintiff (a trespasser) was injured, it was held to be a good defence to show that the plaintiff had notice that the guns were set there.

(k) Hartley v. Halliwell, 2 Starkie's C. 211; 1 B. & A. 620. And see Judge v. Cox, 1 Starkie's C. 285. It seems that the owner of a fierce and unruly dog is bound to secure him without notice (ibid. and Jones v. Perry, 2 Esp. C. 482); and common report that a dog is mad renders it incumbent on the owner to confine him. Ibid.

(2) Ibid. But where a dog accustomed to worry sheep was left at large, and bit a horse, the owner was held to be liable. 1 Ld. Raym. 110.

(m) Judge v. Cox, 1 Starkie's C. 285.

mised to make some compensation, has been held to be insufficient (n). It must also be proved that the owner knew the propensity of the animal (o).

PART

IV.

It is no answer to the action, where the defendant knew Scienter. the vicious propensity of the animal, to prove that the party injured was himself guilty of some imprudence or negligence in the transaction; as that the plaintiff trod upon the defendant's dog whilst it was lying at his door, the defendant being aware that the dog was accustomed to bite (p). And where the owner, knowing that his dog had been bitten by another dog which was mad, instead of destroying the animal, as it was his duty to have done, as soon as he knew him to be in danger of so dreadful a malady, fastened him up, and the child of the plaintiff coming near the dog, irritated him with a stick, upon which the dog flew at him and bit him, and the child in consequence died of hydrophobia, it was held that the plantiff might recover from the owner of the dog the expenses of the apothecary (q).

In an action against the owner or driver of a stage-coach Proof of negli for negligence, it is not sufficient merely to show that if he gence. had kept the left side of the road the accident would not have happened; for where there is no other carriage on the road a coachman may drive on any part of it (r). Nor is he bound to keep to the left side of the road, provided he leave sufficient room for other carriages which meet him on their proper side (s). *But where he may adopt * 982 either of two courses, one of which is safe, the other hazardous, he adopts the latter at his peril (1), even although he drives on his own side of the road (u).

If in an action on the case for negligent driving, or steer- When occaing, it turn out that the injury was occasioned wilfully, the sioned wilfully. action cannot be maintained; trespass is the proper remedy (x). But if it be occasioned by the negligence of the

(n) Beck v. Dyson, 4 Camp. 198. (0) Ibid. and 12 Mod. 555.

(p) Smith v. Pelah, 2 Str. 1264.

(q) Jones v. Perry, 2 Esp. C. 482. See the cases on this subject, Mason v. Keeling, 12 Mod. 332; 1 Ld. Raym. 606. Bayntine v. Sharp, 1 Lutw. 90. Buxendin v. Sharp, 2 Salk. 662.

(r) Aston v. Heaven, 2 Esp. C. 533. See also Wade v. Lady Carr, 2 D. & R. 255.

(8) Wordsworth v. Willan, 5 Esp. C. 273.

(t) Jackson v. Tollett, 2 Starkie's C. 37.

(u) Mayhew v. Boyce, 1 Starkie's C. 423. Vide supra, 345.

(x) Day v. Edwards, 5 T. R. 648, on demurrer. Savignac v.