NEGLIGENT DRIVING. 315 



for the purpose for which, he did touch it than he would 

 have had it been on the defendant's premises." This 

 decision presents a different view of the law from the 

 foregoing ones, inasmuch as it appears to rest upon the 

 fact that the contributive act of the child was an unlawful 

 one, rather than upon the absence of proof of negligence or 

 of a want of ordinary care upon the part of the defendants. 

 But it is questionable whether a decision not only at 

 variance with the current of authority, but also containing 

 no allusion to the law as deducible from the former cases, 

 can be entitled to great weight (2). 



If a person using ordinary care is injured by falling over A heap left on 

 a heap on a Highway, the person who left it there is liable. *^® Highway. 



But a person who is injured by an obstruction, against Opportunity 

 which he may fall on a Highway, cannot maintain an of seeing the 

 action, if it appear that he was riding with great violence 

 and want of ordinary care, without which he might have 

 seen and avoided the obstruction. Thus Lord Ellenbo- 

 rough, C. J., said, "A party is not to cast himself upon 

 an obstruction which has been made by the fault of an- 

 other, and avail himself of it, if he do not himself use 

 common and ordinary caution to be in the right " {a). 



The opportunity, however, of seeing Stones during the Running over 

 day is no defence to an action for damage caused by stones at 

 running over them at night (b). ^^^ 



If a person leaves the Highway and sustains injury. Leaving the 

 he cannot recover any damages. Thus, where a person Highway, 

 stepped aside at night from a Highway, and fell into the 

 foundation of a house, and broke his leg, and brought an 

 action against the defendant, Mr. Justice Cresswell held 

 that there was a wilful departure from the Highway, and, 

 in summing up, directed the Jury that the first question 

 for them to consider was, whether the excavation made 

 by the defendant prevented the public from passing in 

 safety along the Highway. A second question, involved 

 in the first, was, whether the defendant was bound to 

 have fenced off the excavation ; and, thirdly, had the 

 defendant tumbled into the hole while passing along the 

 Highway. The evidence was that he had departed from 

 the road. The Jury found a verdict for the defendant (c) . 



(r) And see observations of (A) Per Eolfe, B., Grieve v. 3['d- 



Cockburn, C. J., in Clark v. to)i, Carlisle Spr. Ass. 1850. 

 Chambers, L. R., 3 Q. B. D. 338, («) Firth v. Ackroyd, before Mr. 



339 ; 47 L. J., Q. B. 427. Justice Cresswell, York Spr. Ass. 



{a) See Biitterfehl v. Forrester, 11 March 10, 1853. 

 East, Gl. 



