NEGLIGENT DRIVING. 313 



a trial at "Warwick, before Lord Chief Baron Richards, where 

 the same law prevailed. The case is Jay v. WJnf field (.s-), 

 mentioned in Bird v. Holhrook (/). A boy having received 

 serious injury from a spring-gun placed in a garden where 

 he was trespassing, recovered a verdict for 120/. damages, 

 which was much considered and never disturbed." 



" A distinction may here be taken between the wilful 

 act done by the defendant in those cases, in deliberately 

 planting a dangerous weapon in his ground, with the 

 design of destroying trespassers, and the mere Negligence 

 of the defendant's servant in leaving his cart in the open 

 street. But between icilfnl Mischief and gross Nepligence 

 the boundary line is hard to trace ; I should rather say 

 impossible. The law runs them into each other, consider- 

 ing such a degree of negligence some proof of malice. It 

 is then a matter strictly within the province of a Jury 

 deciding on the circumstances of each case. They would 

 naturally inquire whether the Horse was vicious or steady ; 

 whether the occasion required the servant to be so long 

 absent from his charge, and whether in that case no 

 assistance could have been procured to watch the Horse ; 

 whether the street was at that hour likely to be clear or 

 thronged with a noisy multitude {u) : especially whether 

 large parties of young children might be reasonably ex- 

 pected to resort to the spot. If this last-mentioned fact 

 were probable, it would be hard to say that a case of gross 

 negligence was not fully established." 



" But the question remains, can the plaintiff then, con- 

 sistently with the authorities, maintain his action, having 

 been at least equally in fault ? The answer is, that sup- 

 posing that fact ascertained by the Jury, but to this extent, 

 that he merely indulged the natural instinct of a child in 

 amusing himself with the empty Cart and deserted Horse, 

 then we think that the defendant cannot be permitted to 

 avail himself of that fact. The most blameable carelessness 

 of his servant having tempted the child, he ought not to 

 reproach the child with yielding to that temptation. He 

 has been the real and only cause of the mischief. He has 

 been deficient in ordinary care ; the child acting without 

 prudence or thought, has, however, shown these qualities in 

 as great a degree as he could be expected to possess them. 



(*■) Jai/ V. WhUfichl, cited 4 Bing. case that Compton Street was more 



644. througed than usual in consequence 



[t) Bird v. Ilollirook, 4 Bing. 628. of a neighbouring street having 



(m) It appeared in the present been stopped up. 



