310 



NEGLIGENCE IN THE USE OF HORSES, ETC. 



Horse and 

 Cart left in 

 the street. 



Judgment of 

 the Court 

 of Queen's 

 Bench. 



The following is an important decision in a case where 

 both parties were wrongdoers, but where the negligence 

 of the plaintiff would not necessarily have been followed 

 by damage, had there not been great negligence on the 

 part of the defendant's servant, who had carelessly left a 

 Horse and Cart standing for some time in the street, and 

 the plaintiff, a young child, was injured when playing 

 about the wheel. The defendant was held liable by a 

 Jury, and the Court of Queen's Bench, after taking time 

 to consider, discharged a rule nisi for a new trial applied 

 for on the ground of misdirection, and Lord Denman de- 

 livered the following important judgment : — ■ 



" This case was tried before my brother Williams at the 

 sittings in Easter Term, 1839. It was an action of Tort 

 for Negligence by the defendant's servant, in leaving his 

 Cart and Horse half-an-hour in the open street, at the 

 door of a house in which the servant remained during that 

 period. The evidence for the plaintiff proved that at the 

 end of the first half-hour, he, a child of very tender age, 

 being between six and seven years old, was heard crying, 

 and on the approach of the witnesses was found on the 

 ground, and a wheel of the defendant's Cart going over 

 his leg, which was thereby fractured. The defendant 

 first applied for a nonsuit. The learned Judge refused the 

 application ; and no question was made before us that 

 these facts afforded prima facie evidence of the mischief 

 having been occasioned by the negligence of the defen- 

 dant's servant in leaving the Cart and Horse. Witnesses 

 were then called to establish a defence by a fuller explana- 

 tion of the facts that had occurred. They proved that 

 after the servant had been about a quarter of an hour in 

 the house, the plaintiff and several other children came 

 up, and began to play with the Horse and climb into the 

 Cart and out of it. While the plaintiff was getting down 

 from it, another boy made the Horse move, in conse- 

 quence of which the plaintiff fell, and his leg was broken 

 as before mentioned. On this undisputed evidence (for 

 there was no cross-examination of the witnesses) the de- 

 fendant's counsel claimed the Judge's direction in his 

 favour, contending that as the plaintiff had obviously 

 contributed to the calamity, it could not be said, in point 

 of law, to have been caused by the Negligence of the 

 defendant's servant. My learned brother, however, thought 

 himself bound to lay all the facts before the Jury, and take 

 their opinion on that general point. They found a verdict 



