PROOF OF NEGLIGENCE. 195 



observed that the employer is answerable for any defect in 

 the condition of " plant " hired for the day,(a) but in such a 

 case he has relief against the owner unless the defect was 

 undiscoverable by any ordinary or reasonable means of 

 enquiry and examination. If there be any improper system 

 or rules for the management of " plant," they will infer 

 negligence against the master, and if a horse be knoAvn to be 

 dangerous, and this fact be concealed from an injured work- 

 man, the master is liable. (As to the bearing of this Act 

 upon the pleas of contributory negligence and volenti non Jit 

 injuria, see § 164.) 



159. Proof of Negligence. — To make out a case of 

 liability for negligence the Court or jury must be satisfied — 

 not only that there was fault on the part of the defenders ; 

 but also, that the fault Avas the natural or proximate cause 

 of the injury. (6) 



The fault complained of must be distinctly made out and 

 not left to mere conjecture. " 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. "(c) There must be evidence 

 upon which they might reasonably and proj^erly conclude 

 that there was negligence. Where the evidence is equally 

 consistent with either view — with the existence or non- 

 existence of negligence — it is not competent to the judge to 

 leave the matter to the jury. Thus, a plaintiff attended a 

 sale of horses at the defendant's sale-yard. In order to 

 show the animal's pace, a servant of the defendant led it 

 with a halter between a blank wall and a row of spectators, 

 there being no barrier to protect buyers from injury. 

 Another servant of the defendant struck the horse Avith a 



(a) Jones v. Burford, 1884, 1 T.L.R. 137. 



\b) § 170. 



(c) Williams, J., in Toorney v. L. B. 6i S. C. Ry. Co., 1857, 3 C.B., N.S. 146; 

 Cotton V. Wood, 1860, 8 C.B., N.S. 568 ; Cox v. Burbidrjc, 1863, 13 C.B., N.S. 

 430, child kicked. 



