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he was in the exercise of due care at the time the accident happened. Upon the evidence, as stated in the report, we cannot say, as matter of law, that the plaintiff did not establish this part of his case. Judgment on the verdict.

After the above decision was rendered, the verdict was set aside, by Chapman, J., as against the evidence.

INDERMAUR v. DAMES.

(Law R. 1 Com. P., 274; Ib. 2 Com. P., 318. Exchequer and Exchequer Chamber, England, 1866, 1867.)

Duty to give Notice of Dangerous Place. Upon the premises of the defendant, who was a sugar refiner, was a hole, or shoot, on a level with the floor, used for raising and lowering sugar to and from the different stories of the building, and usual, necessary, and proper in the way of the defendant's business. Whilst in use, it was necessary and proper that this hole should be unfenced. When not in use, it was sometimes necessary, for the purpose of ventilation, that it should be open. It was not necessary that it should, when not in use, be unfenced; and it might, at such times, without injury to the business, have been fenced by a rail. Whether or not it was usual to fence similar places, when not in actual use, did not appear. The plaintiff, a journeyman gas-fitter, in the employ of a patentee who had fixed a patent gas regulator upon the defendant's premises, for which he was to be paid provided it effected a certain amount of saving in the consumption of gas, went upon the premises, with his employer's agent, for the purpose of examining the several burners, so as to test the new apparatus. Whilst thus engaged upon an upper floor of the building, the plaintiff, under circumstances as to which the evidence was conflicting, but accidentally, and, as the jury found, without any fault or negligence on his part, fell through the hole, and was injured. Held, that, inasmuch as the plaintiff was upon the premises on lawful business, in the course of fulfilling a contract in which he (or his employer) and the defendant both had an interest, and the hole or shoot was from its nature unreasonably dangerous to persons not usually employed upon the premises, but having a right to go there, the defendant was guilty of a breach of duty towards him in suffering the hole to be unfenced.

THIS was an action brought by the plaintiff to recover damages for an injury which he had sustained through the alleged negligence of the defendant and his servants. The declaration stated that the defendant was possessed of a high building, containing several floors, used by the defendant as a sugar refinery, in the interior of which was a shaft or shoot, passing from the basement of the building upwards through the several floors thereof,

and which said shaft or shoot was highly dangerous to persons entering the said building who might be unacquainted with the same, as the defendant then well knew; and that the plaintiff, then being unacquainted with the said premises, was employed by the defendant to enter the said building and execute certain work in his trade of a gas-fitter, after darkness had set in, in the evening, for the defendant, upon one of the upper floors of the said building; yet that the defendant, wrongfully, negligently, and improperly allowed the said shaft or shoot to remain and be open, unfenced, and unguarded and unlighted, whilst the plaintiff was executing the said work, whereby the plaintiff, whilst so employed as aforesaid, fell down the said shaft or shoot, and was precipitated through the same to the basement of the said building, and was greatly hurt, &c.

Pleas, -1. Not guilty; 2. That there was no such shaft or shoot, as alleged; 3. That the said shaft or shoot was not dangerous, as alleged; 4. That the defendant had no such knowledge of the said danger, as alleged; 5. That the plaintiff was not employed by the defendant, as alleged. Issue thereon. The cause was tried before Erle, C. J., at the sittings in Middlesex after last Michaelmas Term. The facts are as follows: The plaintiff who was a journeyman gas-fitter, was, at the time of the accident hereinafter mentioned, in the employ of one Duckham, a gas engineer and fitter, who was the patentee of an improved self-acting gas-regulator. The defendant is a sugar-refiner, having extensive premises in Whitechapel. In June, 1864, Duckham, through one Hargreaves, his agent, agreed with the defendant, who was necessarily a large consumer of gas, to fit up on his premises two of his regulators, upon the terms mentioned in the following memorandum: "I hereby agree to attach two of my patent, selfacting gas-regulators to your meter in area; and, should I fail to effect a saving of from 15 to 30 per cent on your previous consumption, I will remove the regulators, and restore the fittings at my own expense. Should I effect such saving, the machines will be considered, after test, as purchased, and a three-years guarantee given with them. The price to be (two 2-inch), £18. On Saturday, the 25th of June, Hargreaves went to the defendant's premises, pursuant to appointment, for the purpose fixing the apparatus. He was accompanied by the plaintiff and another workman in Duckham's employ, named Bristow, and a lad.

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The plaintiff, however, not being upon that occasion quite sober, Mr. Woods, the defendant's manager, would not allow him to go upon the premises, and the regulators were fixed by Bristow, assisted by the lad, and the work was duly completed. In order to test the regulators, and ascertain that they answered the warranty as to saving in the consumption of gas, it was necessary for the workmen of the patentee to inspect every burner on the premises, to see that they were in a proper state. Bristow having had to do the work almost single-handed, it was too late to make the required inspection on the Saturday night; and accordingly Hargreaves went to the premises on the following Tuesday, accompanied by the plaintiff, in order to examine the several burners, and so test the apparatus. Before going there for that purpose, Hargreaves cautioned the plaintiff, saying: "Now, mind, Indermaur, sugar-houses are very peculiar places; they neither allow candles or lucifers. We must keep our eyes open. There is a man to go with us with a light. I shall follow the man, and you keep close to me." When they arrived at the premises, Hargreaves and the plaintiff, accompanied by one of the defendant's workmen, with a light, proceeded to the first floor, and, after examining one of the burners, went round to another part of the floor for the purpose of inspecting another. In the mean time, the plaintiff, who had left a pair of plyers at the spot they first went to, turned back to fetch them; but, in returning, instead of going round the way Hargreaves and the defendant's man had gone, he walked straight across towards them, not perceiving an intervening hole in the floor, and fell through to the floor below, a depth of about thirty feet, and fractured his spine.

The hole in question was a shaft or shoot four feet three inches square, communicating from the basement to the several floors. of the building. It was fenced at each side, but open back and front. It was necessary to the defendant's business to have such a shaft; and it was necessary that it should, whilst in use for the raising or lowering of goods, and occasionally also for purposes of ventilation, be open and unfenced; and there was no evidence to show that it was usual in buildings of the kind to adopt the precaution of fencing such shafts.

On the part of the defendant it was submitted that there was no duty or obligation on him to fence the shaft, and consequently no cause of action; and reliance was placed upon Wilkinson v.

Fairrie, 1 H. & C. 633, 32 L. J. Ex. 73. His lordship observed that, though as to persons employed in the business there might be no duty or obligation to fence, a very different degree of care might be due in the case of a person not so employed, but merely going there for a temporary lawful purpose, as this plaintiff did. He, however, reserved the point.

Several witnesses were then called on the part of the defendant; amongst others, Mr. Woods, the defendant's manager, who stated that the defendant's premises, which had been recently erected, were constructed in the same way as all sugar-refineries were constructed, and were not more than ordinarily dangerous; and that, if he had known that the plaintiff was coming to work upon the premises, he would not have allowed him to do so.

The evidence as to the number of lights on the floor at the time of the accident was conflicting. The plaintiff swore that there were only two; the defendant's witnesses that there were five, and that the light was ample. In his summing up, the Lord Chief Justice stated in substance as follows: The plaintiff has to establish that there was negligence on the part of the defendant; that the premises of the defendant, to which he was sent in the course of his business as a gas-fitter, were in a dangerous state; and that, as between himself and the defendant, there was a want of due and proper precaution in respect of the hole in the floor. To my mind, there would not be the least symptom of want of due care as between the defendant and a person (permanently) employed on his premises, because the sugar-baking business requires a lift on the premises, which must be as well known to the persons employed there as the top of a staircase in every dwelling-house. But that which may be no negligence towards men ordinarily employed upon the premises, may be negligence towards strangers lawfully coming upon the premises in the course of their business. And, after observing upon the facts, he told the jury, that, if they found that there was no negligence on the part of the defendant, or that there was want of reasonable care on the part of the defendant, but that there was also want of reasonable care on the part of the plaintiff, which materially contributed to the accident, the plaintiff was not entitled to recover; but that, if there was want of reasonable care in the defendant, and no want of reasonable care in the plaintiff, then the plaintiff was entitled to a verdict.

The jury returned a verdict for the plaintiff, damages £400. Huddleston, Q. C., in Hilary Term, obtained a rule nisi to enter a nonsuit, on the ground that the evidence did not disclose any cause of action; or to arrest the judgment, on the ground that the declaration showed no breach of contract or breach of duty on the part of the defendant; or for a new trial, on the ground that the verdict was against the weight of evidence. He referred to Seymour v. Maddox, 16 Q. B., 326, 20 L. J. Q. B. 327; Hounsell v. Smyth, 7 C. B. N. s. 731, 29 L. J. C. P. 203; and Wilkinson v. Fairrie, 1 H. & C. 633, 32 L. J. Ex. 73. [WILLES, J., referred to Farrant v. Barnes, 11 C. B. N. s. 553; 31 L. J. C. P. 137.]

Ballantine, Serjt., and Raymond, showed cause. There was abundant evidence for the jury in this case, of a culpable want of due care on the part of the defendant as regards this plaintiff. He was on the premises, not as a mere volunteer, or in the character of a visitor, as in Southcote v. Stanley, 1 H. & N. 247, 25 L. J. Ex. 339; nor does the case fall within the class relating to injuries to servants in the course of their employ, by reason of defective machinery. Here the plaintiff was upon the premises by the permission of the defendant, in the performance of his duty as a gas-fitter. The nature of the premises, with its hidden dangers, was unknown to him; and the caution which was given to him did not go far enough; it did not call his attention to the particular peril, but seemed rather to be directed to the safety of the premises than to that of the individual. The rule as to dangerous pitfalls is accurately laid down in Barnes v. Ward, 9 C. B. 392, 19 L. J. C. P. 195; Corby v. Hill, 4 C. B. N. s. 556, 27 L. J. C. P. 318; and Hounsell v. Smyth. The application of that rule must depend upon the circumstances of each particular case. [WILLES, J. The proposition is, that this was a danger which was known to the defendant, but of which the plaintiff, to the knowledge of the defendant, was ignorant. Precisely so. It was conceded that this shaft or shoot was matter of imminent peril, unless the floor was properly lighted, as to which there was a conflict of testimony, which is disposed of by the finding of the jury. The case which approaches the nearest to this undoubtedly is that of Wilkinson v. Fairrie, 1 H. & C. 633, 32 L. J. Ex. 73. There the plaintiff, a carman, was sent by his employer to the defendant's premises to fetch some goods.