314 



NEGLIGENCE IN THE USE OF HORSES, ETC. 



Where no 



negligence on 

 the part of the 

 defendant. 



Lawdeducible 

 from these 

 decisions. 



Abbott V. 

 Macfie, 



His misconduct bears no proportion to that of the defen- 

 dant which produced it." 



" For these reasons we think that nothing appears in 

 the case which can prevent the action from being main- 

 tained. It was properly left to the Jury, with whose 

 opinion we fully concur" (r). 



In a case in which a child three years old strayed upon 

 a railway, and had its leg cut off by a passing train, it 

 was held that in the absence of any evidence to show any 

 negligence on the part of the Company, they were not 

 responsible for the injury {x). 



The law then deducible from these decisions is, that 

 where there is only so much negligence and so little ordi- 

 nary care on the part of the child, as it is natural the child 

 should possess, if negligence, and a want of ordinary care, 

 be shown by the defendants, the child is entitled to recover. 

 But if no negligence, and no want of ordinary care, be 

 proved against the defendants, the child is not entitled to 

 recover. 



But in a more recent case it was held by the Court of 

 Exchequer (//), that the contributory negligence of an 

 infant has the same effect in disentitling him to maintain 

 an action as that of an adult. For, in a case in which the 

 defendants placed the shutter of their cellar against the 

 wall of a public street, and the dress of a child, who was 

 playing in the street and jumping off the shutter, caught 

 the corner of the shutter, which fell upon and injured 

 him, it was held that the defendants were not liable to 

 an action, and Pollock, C. B., said, "Had the plaintiff 

 been an adult, it is clear that he could maintain no 

 action ; he voluntarily meddled for no lawful purpose 

 with that which, if left alone, would not have hurt 

 him ; he would therefore, at all events, have contributed 

 by his own negligence to his damage. We think that the 

 fact of the plaintiff being of tender years makes no differ- 

 ence. His touching the flap was for no lawful purpose, 

 and if he could maintain the action, he could equally do 

 so, if the flap had been placed inside the defendant's 

 premises within sight of the child. As far as the child's 

 act is concerned, he had no more right to touch the flap 



(r) Lynch v. Ktirdin, 1 Q. B. 33. 

 See also the case of L>jgo v. Xcivbolf, 

 y Ex. 302. 



[x) Singleton v. Eastern Counties 

 Railivmj Co., 7 0. B., N. S. 287. 



(y) Abbott V. Macfii; 33 L. J., 

 Ex. 177. See also Mangan \. At- 

 terton, L. E., 1 Ex. 239; 4 H. & C. 

 388. 



