246 LIVERY-STABLE KEEPERS, AGISTERS, ETC. 



liable ; but no proof short of tbis will exonerate bim. 

 Nor does it appear to me to be at all unreasonable to exact 

 such vigilance from a person wbo makes it bis business to 

 let out Carriages for bire. As between bim and tbe Hirer 

 tbe risk of defects in tbe Carriage, so far as skill and care 

 can avoid tbem, ougbt to be tbrown on tbe owner of tbe 

 Carriage. Tbe birer trusts bim to supply a fit and proper 

 Carriage ; tbe lender bas it in bis power not only to see 

 tbat it is in a proper state, and to keep it so, and tbus 

 protect bimself from risk, but also to charge his customers 

 enough to cover bis expenses. 



" Such being, in my opinion, the law applicable to the 

 case, it follows tbat the direction given to the Jury did not 

 go far enough, and tbat it was not sufficient, in order to 

 exonerate the defendant from liability, for bim to prove 

 that be did not know of any defect in tbe bolt, bad no 

 reason to suppose it was weak, and could not see tbat it 

 was by an ordinary inspection of the carriage. It further 

 follows tbat, in my opinion, the evidence was not such as 

 to warrant the finding that the carriage was in a fit and 

 proper state when it left tbe defendant's yard. 



" In many cases bearing on this subject, tbe expression 

 ' reasonably fit and proper ' is used. Tbis is a little 

 ambiguous, and requires explanation. In a case like the 

 present, a Carriage to be reasonably fit and proper must be 

 as fit and proper as care and skill can make it for use in a 

 reasonable and proper manner, /. e., as fit and proper as 

 care and skill can make it to carry a reasonable number of 

 people, conducting themselves in a reasonable manner, and 

 going at a reasonable pace on the journey for which tbe 

 Carriage was hired, or (if no journey was specified) along 

 roads or over grounds reasonably fit for Carriages. A 

 Carriage not fit and proper in this sense would not be 

 reasonably fit and proper, and Tice vend. The expression 

 ' reasonably fit ' denotes something short of absolutely fit ; 

 but in a case of this description the difference between the 

 two expressions is not great. 



"It was objected on the part of tbe defendant that the 

 plaintiff had, in bis statement of claim, based bis case -on 

 negligence on the part of the defendant, and not on any 

 breach of warranty express or implied, and consequently 

 that the plaintiff' could not recover in this action, at least 

 without amending. But the absence of such care as a 

 person is by law bound to take is negligence ; and whether 

 the plaintiff' sues tbe defendant in tort for negligence in 



