316 



NEGLIGENCE IN THE TSE OF HORSES, ETC. 



Excavation a 



public 



nuisance. 



Trespasser 

 may maintain 

 an action. 



True test of 

 legal liability. 



Owners of 

 private ways 

 may be liable 

 for negli- 

 gence. 



But when the newly-made and unfenced excavation 

 for a house adjoins an immemorial public way, which is 

 found by the Jury to render the way unsafe to those who 

 use it with ordinary care, it is a public nuisance, though 

 the danger consists in the risk of accidentally deviating 

 from the road ; for the danger thus created may reason- 

 ably deter prudent persons from using the way, and thus 

 the full enjoyment of it by the public is, in effect, as 

 much impeded, as in the case of an ordinary nuisance to 

 a highway {(/). And a private injury arising from a 

 j)ublic nuisance is the subject-matter of an action for 

 damages {e) . 



It by no means follows that, because the person in- 

 jured is a trespasser on the land at the time the injury 

 was sustained, he cannot maintain an action. A tres- 

 passer is liable to an action for the injury which he does ; 

 but he does not forfeit his right of action for an injury 

 sustained (_/). 



The proper and true test of legal liability in these cases 

 is, whether the excavation be substantially adjoining the 

 way. When an excavation is made adjoining a public 

 way, so that a person walking on the public way might,, 

 by making a false step, or being affected with sudden 

 giddiness, or, in the case of a Horse or Carriage, who 

 might by the sudden starting of a Horse be thrown into 

 the excavation, it is reasonable that the person making 

 such an excavation should be liable for the consequences. 

 But it would not be reasonable that he should be liable for 

 the consequences, when the excavation is made at some 

 distance from the way, and the person falling into it 

 would be a trespasser upon the defendant's land, before he 

 reached it [e) . 



But it is not only when injury results to persons using 

 a public way from the negligence of adjoining proprietors, 

 that an action lies. It lies also against the owner of a 

 private way for injury to persons lawfully, and by his 

 permission, using it, if caused by the negligence of his 

 servants, and if not arising from the risks attendant on 

 the ordinary nature of the business carried on, as where 



{d) Barnes v. Ward, 9 C. B. 392; 

 Sadlei/ V. Ta7jlor, L. R., 1 C. P. 

 53. 



(e) Hardcastle v. South Yorkshire 

 JRaibcai/ Co., 28 L. J., Ex. 139. 

 See also Hounsell v. Smyth, 7 C. B., 

 N. S. 731 ; Benjamin v. Storr, L. R., 



9 C. P. 400; 43 L. J., C. P. 162; 

 30 L. T., N. S. 362; 22 W. R. 

 631. 



(/') Sadler v. Hcnloch, 24 L. J., 

 Q. B. 138; Blahe v. Thirst, 2 H. & 

 C. 20; Butler \. Hunter, 7 H. k N. 

 826. 



