822 



NEGLIGENCE IN THE USE OE HOUSES, ETC. 



Power of 

 selection. 



Altogether an 

 Accident. 



Running over 

 a person at 

 night. 



■wliicli seems to deserve more consideration tlian it received 

 in the ease of TJiorogood v. BrijcDi" {[/). 



And indeed it seems absurd to say tliat the Driver of 

 an Omnibus is the servant of the passenger on account of 

 his " selecting the particular conveyance," An omnibus 

 is a carriage ] lying between 'two termini, and subject to 

 various regulations, over which the passenger has no 

 control. By these the Driver is governed, and for a 

 breach of them he is punished under an Act of Parliament, 

 tlie passenger in no case being able either to alter or 

 modify the regular routine of the Driver's employment. 

 And it would be idle to say that a passenger going from 

 Charing Cross to the Eyre Arms selects his Carriage, for 

 the only Omnibuses which run there are those of the Atlas 

 Company. And indeed all ■ London Omnibuses being 

 under the same regulations, each must be supposed to have 

 been selected for the public service, so that in point of law 

 there can be no difference between one and another. 



Where the injury arises altogether from accident the 

 defendant is not liable (//). Thus, where an action of 

 Trespass was brought for injury done to a Horse by a 

 Pony and Chaise running against it, the plaintiff called 

 witnesses who said they saw the Pony and Chaise stand- 

 ing half an hour in the street without any person to take 

 care of them, and also they afterwards saw the Pony run 

 away with the Chaise and run against the plaintiff's 

 Horse ; but they did not know the cause of the Pony's 

 starting. It was sworn on the part of the defendant, 

 that his wife was holding the Pony by the bridle, w'hen a 

 Punch and Judy show coming by frightened the Pony, 

 which ran away, and almost pulled down the defendant's 

 wife while she tried to hold it in, and she was obhged 

 at length to let go the rein. Lord Denman, C. J., in 

 summing up, said to the Jury, " If the facts are true as 

 suggested for the defence, I very much think you would 

 be disposed to consider this as an ineritahle accident, one 

 which the defendant could not prevent." However, the 

 Jury disbelieved the defendant's evidence, and found a 

 verdict for the plaintiff (?) . 



In the following case, a servant was sent with a Yan 

 and a Plorse on some errand by the defendant, with 



(r/) 1 Sm. L. C, 8th ed. 316; and 

 see also Child v. Ileum, L. E., 9 

 Ex. 17G; 4;)L. J., Ex. 100. 



ill) Per Alderson, J., TlueJciccll 

 V. Wilson, 5 C. & P. 37.5. 



(i) Goodman v. Taylor, 5 C. & P. 

 410. 



