NEGLIGENT DRIVING. 325 



conduct must liave contributed to the accident, he is not 

 answerable {q). 



But the rule that a person is not answerable for injury Qualification 

 resulting from circumstances over which he has no control of I'^iie- 

 admits of this qualification, namely, that if a person is 

 aware beforehand that the circumstances in which of his 

 own free will he is about to place himself, will put him in 

 a position over which he has no control, and in which, he 

 will probably cause injury to others, he will then be an- 

 swerable for an injury so caused ; thus, if in the case 

 quoted above of Hanimack v. White, the defendant had 

 been proved to have known beforehand that the Horse was 

 vicious and unmanageable (/•), he would have been held 

 responsible. So, also, in Simson v. London General Omnibus 

 Compel n// («), where a passenger in an Omnibus was injured 

 by a blow from one of the Horses, which had kicked 

 thi'ough the front panel of the vehicle, and there was no 

 evidence on the part of the passenger that the Horse was 

 a kicker ; but it was proved that the panel bore marks of 

 other kicks, and that no precaution had been taken by the 

 use of a kicking strap or otherwise against the possible 

 consequences of a Horse striking out, and no explanation 

 was offered on the part of the owner of the Omnibus : — It 

 was held that there was evidence of negligence proper 

 to be submitted to a Jury. 



The proof of negligence must be affirmative. Therefore Proof of neg- 

 where there is a perfectly even balance of evidence there is I'^^S?*^ ™?-^!' 

 no negligence. Thus, in the case of Cotton v. Wood (t), 

 the plaintiff's wife, on a dark night, and in a snowstorm, 

 proceeded slowly, accompanied by another female, to cross 

 a crowded thoroughfare, whilst the defendant's Omnibus 

 was coming up on the right side of the road, and at a 

 moderate pace. There was abundant time for the women 

 to have got safely across, and they had got so far across 

 as to have passed in front of the Omnibus, when they were 

 alarmed by the approach of another vehicle from the 

 opposite direction, and turned back ; the result of which 

 was that the plaintiff's mfe was knocked down and run 

 over by the Omnibus, and was so injured that she died. 



(q) See ante, Bex v. Timmins, 7 597. 

 C. & P. 500 ; and see Holmes v. (s) L. R., 8 C. P. 390; 42 L. J., 



Mather, L. R., 10 Ex. 261 ; 44 L. C. P. 112; 28 L. T., N. S. 500 ; 



J., Ex. 170; 33L. T., N. S. 361. 21 W. R. 595. 



(r) See judgment of WiUes, J., (t) Cotton v. Wood, 8 C. B.,]Sr. S. 



JIammack v. Wldte, 11 C. B.,N. S. 568. 



