were no other coaches on the road, and the horses took fright and overturned the coach, it was held to afford no evidence of negligence. Aston v. Heaven, 2 Esp. 533.; Wakeman v. Robinson, 1 Bing. 213. So where the accident arises from foggy weather, or the removal of accustomed landmarks. Crofts v. Waterhouse, 3 Bing. 319, 321. In Wordsworth v. Willan, 5 Esp. 273., the rule with regard to keeping the road is said to be, that if a carriage coming in any direction leaves sufficient room for any other carriage, horse, or passenger, on its side of the way, it is sufficient; and in Wayde v. Lady Carr, 2 D. & R. 256, the court said that, whatever might be the law of the road, it was not to be considered as inflexible, since in crowded streets situations and circumstances might frequently arise where a deviation from what is called the law of the road would not only be justifiable but absolutely necessary. Where the defendant was driving on the wrong side of the road, which was of considerable breadth, and the plaintiff's servant, who was on horseback, without any reason crossed over to the side on which the defendant was driving, and, on endeavouring to pass, his horse was killed, Lord Kenyon held that it was putting himself voluntarily into danger, and that the injury was of his own seeking; but the jury found a verdict for the plaintiff, which the court of K. B. refused to disturb. Cruden v. Fentham, 2 Esp. 685. And although a person is not bound to confine himself to the ordinary side of the road, yet if he does not, he is bound to use a greater degree of care to avoid accidents than if he kept the proper side. Pluckwell v. Wilson, 5 C. & P. 375.

In order to subject the master to damages, it must appear that there has been something to blame on the part of his servant; and he is blameable if he has not exercised the best and soundest judgment on the subject. Per Lord Ellenborough C. J., Jackson v. Tollett, 2 Stark. 39. The coachman must have competent skill, and must use that skill with diligence; he must be well acquainted with the road he undertakes to drive; he must be provided with steady horses; a coach and harness of sufficient strength and properly made; and also with lights by night. Per Best C. J., Crofts v. Waterhouse, 3 Bing. 321. If the driver may adopt either of two courses, one of which is safe and the other hazardous, and he elects the latter, he is responsible for the mischief which ensues. Mayhew v. Boyce, 1 Stark. 423. If the driver of a stagecoach neglects to inform an outside passenger of his danger where the way passes through a low archway, the owner of the coach is liable for the damage. Dudley v. Smith, 1 Camp. 167. A passenger being, in consequence of the negligence of the defendant, placed in a situation which obliges him to adopt the alternative of leaping from the coach, or remaining at certain peril, leaps, and is hurt: the defendant is liable, if it appears that the leaping was a prudent precaution for the purpose of self-preservation. Jones v. Boyce, 1 Stark. 493.

The defendant's servant who drove the carriage is a competent witness to disprove the negligence since the statute 3 & 4 W. 4. c. 42. s. 26. without releasing him. Yeomans v. Legh, 2 M. & W. 419. But see Boorman v. Brown, 9 A. & E. 487. 497.

Running down ships.] In Vennall v. Garner, 1 C. & M. 21., it was held that the plaintiff was entitled to recover, although he might have prevented the collision, if the defendant's ship ought, under the circumstances, to have given way; for the plaintiff had a right to presume

that the defendant would have given way, and so prevented the accident. The general rule seems to be that where two ships are approaching each other, the ship on the larboard tack ought to give way, and that on the starboard tack to hold on; and where two steamers are approaching in a straight line, each is to put the helm a-port. This rule is constantly laid down in the Court of Admiralty. See The Ann and Mary, Adm. Nov. 3. 1843, and the Traveller, Nov. 24., Jurist, vol. vii. p. 999, 1094, Where the plaintiff has, by his own culpable negligence, substantially contributed to the accident, he cannot recover. Vennall v. Garner, suprà; Sills v. Brown, 9 C. & P. 601.; Smith v. Dobson, 3 M. & G. 59. See, however, Bridge v. Grand Junction Railway Co., 3 M. & W. 244., cited post, p. 357, 358. It is no defence that the vessel became unmanageable by reason of a previous accident happening by the neglect of the crew. Seccombe v. Wood, 2 M. & Rob. 290. The master is not liable for the wilful act of the crew, though he was on board at the time. Bowcher v. Noidstrom, 1 Taunt. 568.

Defendants are not entitled to deduct from the damages money paid to the plaintiff by insurers for the same damage. Yates v. Whyte, 4 New Ca. 272.

Liability for damage by animals.] The owner of a wild animal, as a lion, or bear, which escapes and does damage, is liable without any proof of notice of the animal's ferocity; but where the damage is done by a domestic animal, as a bull, a dog, &c., the plaintiff must shew that the defendant knew the animal was accustomed to do mischief; R. v. Huggins, 2 Ld. Raym. 1583; B. N. P. 76.; and if a man keeps a dog which is accustomed to bite sheep, &c., and the owner knows it and notwithstanding keeps the dog still, and afterwards the dog bites a horse, this is actionable. Per Powell J., Jenkins v. Turner, 1 Ld. Raym. 110. Where the allegation in the declaration was, that the dog was accustomed to bite mankind, and that the defendant knew it, it was held by Abbott J. that proof that the defendant had warned a person to beware of the dog, was evidence to go to the jury in support of the allegation; Judge v. Cox, 1 Stark. 285.; though where it was alleged that the defendant knew that the dog was accustomed to bite sheep, the court held that proof that the dog had jumped at a man, and had chased sheep, was not evidence to support the action. Hartley v. Halliwell, 2 Stark. 214., S. C. 1 B. & A. 620. So in an action for keeping a dog which bit the plaintiff, Lord Ellenborough held it not to be sufficient to shew that the dog was of a fierce and savage disposition, and usually tied up by the defendant, and that the defendant had promised to make a pecu niary satisfaction to the plaintiff. Beck v. Dyson, 4 Camp. 198. But in the later case of Thomas v. Morgan, 2 C. M. & R. 496., such an offer to make satisfaction was held to be evidence, though very slight, of the scienter. See also 2 Stark, 214. (n). Where a dog has once bitten a man, and the owner, having notice thereof, lets him go about, or lie at his door, an action will lie against him by a person who is bit, though it happened by such person treading on the dog's toes; for it was owing to the defendant not hanging the dog. Smith v. Pelah, 2 Stra. 1264. So where the defendant's dog was reported to be mad, and the defendant tied him up, but he broke loose and bit the plaintiff's child, who died

in consequence, it was held that the defendant was liable in damages to the amount of the apothecary's bill for attending the child; and Lord Kenyon admitted evidence of reports in the neighbourhood that the dog had been bitten by a mad dog, to prove the scienter. Jones v. Perry, 2 Esp. 482., differently reported, Peak, Ev. 292., 5th edit. But if a dog, accustomed to bite, be let loose at night for the protection of the defendant's yard, and the injury arise from the plaintiff incautiously going into the yard after it has been shut up, no action will lie. Brock v. Copeland, 1 Esp. 203. A person has a right to keep a fierce dog to protect his property, but not to place it in the approaches to his house, so as to injure persons exercising a lawful purpose in going along those paths to the house. Per Tindal C. J., Sarch v. Blackburn, M. & M. 505.; see also Blackman v. Simmons, 3 C. & P. 138. The principle of these cases was discussed in Bird v. Holbrook, 4 Bing. 628., where it was held that any one, who for the protection of his property sets a spring-gun without notice in a walled garden, is answerable in damages to a person, who, having climbed over the wall in search of a strayed fowl, is injured by the gun. See however the remarks made upon this case in Jordin v. Crump, 8 M. & W. 782.

The general issue puts in issue not only the biting, or other injury, but also the scienter. Thomas v. Morgan, 2 C. M. & R. 496.

Accidents from neglect of inclosure, repairs, &c.] Where the tenant of a house was bound to repair it, but the landlord superintended the repairs, and the cellar was left in a dangerous state whereby an accident happened, the landlord was held liable. Leslie v. Pounds, 4 Taunt. 649.; Payne v. Rogers, 2 H. Bl. 349. So where the defendant had employed a bricklayer to make a sewer, who left it open, in consequence of which the plaintiff fell in and broke his leg, the defendant was held liable; Sly v. Edgley, 6 Esp. 6.; so the occupier of a house is bound to rail in the area, and if an accident happen, it is no defence that the premises had been in the same situation for many years before the defendant came into possession of them. Coupland v. Hardingham, 3 Camp. 398; Where A. employed B. to repair his (A.'s) house for a stipulated sum; and B. contracted with C. to do the work, and C. with D. to furnish the materials, and the servant of D. brought a quantity of lime to the house and placed it in the road, by which the plaintiff's carriage was overturned, it was held that A. was liable for this damage. Bush v. Steinman, 1 B. & P. 404. So where an incorporated water-works company contracted with certain pipe-layers to lay down pipes, and the pipe-layers employed workmen by whose negligence an accident happened, Lord Ellenborough held the company liable. Matthews v. West London Water-works Co., 3 Camp. 403. See also Randleson v. Murray, 8 A. & E. 109.

The principle of some of the above cases has been doubted, but they are founded on the rule that the occupier of fixed property must take care so to use and manage it as not to injure others, whether by his own servants or by others whom he brings on the premises. See the judgment of Littledale J., in Laugher v. Pointer, 5 B. & C. 547., and Quarman v. Burnett, 6 M. & W. 499. But in other cases the action lies only against the person who, by himself or his servant committed the injury; and a sub-contractor or other person exercisin › an independent employment is not a servant within the meaning of th

rule, so as to render his employer liable. Rapson v. Cubitt, 9 M. & W. 710.; Milligan v. Wedge, 12 A. § E. 737. A. contracted with the Postmaster general to provide mail-coaches; and B. contracted to supply horses and drivers: the plaintiff was hired by B. to drive one of the coaches, and in such employment met with an accident from a defect in the coach: Held, that he could not sue A. Winterbottom v. Wright, 10 M. & W. 109. Where the defendant sold a gun to A. for the plaintiff's use, and falsely and fradulently warranted its soundness knowing it to be unsound, the plaintiff may sue the defendant for an injury done to him by its bursting. Langridge v. Levy, 2 M. & W. 519. aff. on error, 4 M. & W. 337.

Liability of innkeeper.] The liability of an innkeeper very closely resembles that of a carrier, post, p. 358. et seq. He is primâ facie liable for any loss not occasioned by the act of God, or the king's enemies, though he may be exonerated where the guest chooses to have the goods under his own care. Per Bayley J., Richmond v. Smith, 8 B. & C. 11. He is liable for money as well as goods. Kent v. Shuckard, 2 B. & Ad. 803.; Doorman v. Jenkins, 4 Nev. & M. 170. Where a traveller desired to have his luggage taken into the commercial room, whence it was stolen, it was held that the innkeeper was liable, though he proved that, according to the usual practice of his house, the luggage would have been carried into the traveller's bed-room, if no order had been given. Richmond v. Smith, 8 B. & C. 9. But where a traveller engaged a private room for the purpose of showing his goods, and was told that there was a key in the door, it was held that, as he had taken the goods under his own custody, the innkeeper was not liable. Burgess v. Clements, 4 M. & S. 306. An innkeeper, on a fair day, placing a gig belonging to a guest in the open street, where, on such occasions, he was accustomed to place carriages, is liable if the gig is stolen. Jones v. Tyler, 1 A. & E. 522.

Defence.

The plea of Not guilty operates as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the indorsement. All matters in confession and avoidance shall be pleaded specially, as in assumpsit. R. H. 4 W. 4.

In an action against coach proprietors for negligence, the defendants may show that the damage was occasioned by mere accident; vide suprà, p. 353.; and where the plaintiff rests his case on the presumption of negligence arising from the fact of the coach breaking down, the defendant may shew that the coach was examined a few days before the accident, and no flaw discovered; and that the coachman, a skilful driver, was driving in the usual track and at a moderate pace. Christie v. Griggs, 2 Camp. 81. The defendant may shew that the immediate and proximate cause of the injury was the unskilfulness or negligence of the plaintiff; Flower v. Adam, 2 Taunt. 315.; Williamsv. Holland, 10 Bing. 112. Vennall v. Garner, 1 C. & M. 21.; and this is evidence on Not guilty; Bridge v. The Grand Junction Railway Co., 3 M. & W. 244.; in which case Parke B. states the rule to be that, although there may have been negligence on the part of the

plaintiff, yet, unless he might by the exercise of ordinary care have avoided the consequences of the defendant's negligence, he is entitled to recover: if by ordinary care he might have avoided this, he is the author of his own wrong that is the only way in which the rule as to the exercise of ordinary care is applicable to questions of this kind. Where the plaintiff had improperly left an ass on the high road, and the defendant by negligently driving too fast ran over and killed it, he was held liable to the owner of the ass. Davies v. Mann, 10 M. & W. 546. Where the defendant negligently left a cart and horse in a public street, and one of two children improperly playing with the cart met with an accident by falling from it whilst the other was driving the horse on, it was held that the injured child might sue the defendant in case. Lynch v. Nurdin, 1 Q. B. 29. In Vaughan v. Menlove, 7 C. & P. 525., where the defendant was held liable for damage occasioned to the plaintiff's property from the defendant's hay-rick having ignited owing to being carelessly put together, Patteson J. directed the jury to consider whether the defendant had acted as a man of ordinary skill and prudence would have acted, or whether through his negligence and carelessness the plaintiff's property has been consumed. It was not enough that the defendant had acted bona fide, for if by his injudicious want of care the injury had been occasioned, he was liable to the action. S. C. 3 New Ca. 468. Where the declaration alleges by way of inducement that the defendant was possessed of a carriage, and then states the negligent driving &c., the plea of Not guilty does not put in issue the property of the carriage; and queere, whether it would have done so if the plaintiff had omitted the inducement, and only stated the driving of the “defendant's carriage"? Taverner v. Little, 5 New Ca. 678.; Hart v. Crowley, 12 A. & E. 378.

In an action for negligently keeping a mischievous animal, it is a good defence that the animal was properly at large, and that the accident happened by the plaintiff's own misconduct. Brock v. Copeland, 1 Esp. 203.; Deane v. Clayton, 1 B. Moore, 225. 245.

CASE AGAINST CARRIERS.

In an action on the case against a carrier for not carrying goods safely, the plaintiff may have to prove that the defendant is a carrier; the contract for carriage; the delivery of the plaintiff's goods to him; and the loss of them, or other injury.

The defendant's character as carrier.] This is admitted unless specially traversed. The proprietors of stage-coaches carrying goods; the owners and masters of vessels; Morse v. Slue, 2 Lev. 69.; hoymen; ibid.; Wardell v. Mourillyan, 2 Esp. 693.; Maving v. Todd, 1 Stark. 72.; wharfingers and bargemen; Rich v. Kneeland, Cro. Jac. 330., are all liable as common carriers. But it was ruled by Lord Abinger that a carman, whose carts ply for hire near the wharfs, and who lets them by the hour, day, or job, is not a common carrier. Brind v. Dale, 2 M. & Rob. 80. A carrier is in the nature of an insurer, and liable for every accident, except by the act of God or the king's enemies.