326 



NEGLIGENCE IN THE USE OF HORSES, ETC. 



Where evi- 

 dence is 

 eqiially con- 

 sistent with 

 neglig-ence 

 and no negli- 

 srence. 



The only circumstance wliicli was at all suggestive of neg- 

 ligence on the part of the defendant was that, though he 

 saw the women cross in front of his Omnibus, he had at 

 the moment when they turned back looked round to speak 

 to the conductor, and therefore was not aware of their 

 danger, until warned by the cry of a bystander, when it 

 was too late to avert the mischief. 



It was held that there was in this case no proof of 

 negligence on the part of the defendant, for it w^as not 

 shown that there existed some duty owing from the de- 

 fendant to the plaintiff, of which there had been a breach. 

 And Erie, 0. J., said, " Where it is a perfectly even 

 balance upon the evidence whether the injury complained 

 of has resulted from the want of proper care on the one 

 side or on the other, the party who founds his claim upon 

 the imputation of negligence fails to establish his case." 

 " One of the plaintiff's witnesses stated that the driver was 

 looking round at the time to speak to the conductor. 

 That clearly would be no affirmative proof of negligence. 

 The man was driving on his proper side, and at a proper 

 pace. As far as the evidence goes, there appears to me 

 just as much reason for saying that the plaintiff's wife 

 came negligently into collision with the defendant's Horses 

 and Omnibus as for sajdng that the collision was the residt 

 of negligence on the part of the defendant's servant." 

 "A scintilla of evidence, or a mere surmise that there may 

 have been negligence on the part of the defendants, 

 clearly would not justify the Judge in leaving the case to 

 the Jury(^^). There must be evidence upon which they 

 might reasonably and properly conclude that there was 

 negligence." " The very vague use of the term negligence 

 has led to many cases being left to the Jury in which I 

 have been utterly unable to find the existence of any legal 

 duty, or any evidence of a breach of it." 



And in the same case (,r) "Williams, J., said, " There 

 is another rule of the law of evidence, which is of 

 the first importance, and which is fully established in all 

 the Courts, viz., that where the evidence is equally con- 

 sistent with cither view, — with the existence or non- 

 existence of negligence, — it is not competent to the Judge 

 to leave the matter to the Jury." 



(«) Quoting from Williams, J., 

 in Toomcy v. London, Brighton and 

 South Coast Railway Co., 3 C. B., 

 N. S. 146 ; and see Cornman y. 



Eastern Counties Eailicai/ Co., 4 H. 

 &N. 781. 



(.r) Cotton V. IFood, 8 C. B., N. S. 

 568, ante, p. 32.5. 



