350 RIGHT OF ACTION BY TRESPASSER. 



the existence of the pit in the waste or field adjoining the road is not 

 said to have been dangerous to the persons or cattle of those who 

 passed along the road, if ordinary caution were employed. In the 

 present case, the jury expressly found the way to have existed imme- 

 morially, and they must be taken to have found that the state of the 

 area made the way dangerous for those passing along it, and that the 

 deceased was using ordinary caution in the exercise of the right of way, 

 at the time the accident happened. ^Yith regard to the objection that 

 the deceased was a trespasser on the defendant's land at the time the 

 injury was sustained, it by no means follows from this circumstance 

 that the action cannot be maintained. A trespasser is liable to an 

 action for the injury which he does, but he does not forfeit his right 

 of action for an injury sustained. Thus in the case oi Bird v. Hulhrooh, 

 the plaintiif was a trespasser (and indeed a voluntary one), but he was 

 held entitled to maintain an action for an injury sustained, in conse- 

 quence of the wrongful act of the defendant, without any want of 

 ordinary caution on the part of the plaintiff, though it would not have 

 occurred if the plaintiff had not trespassed on the defendant's land. 

 This decision was approved of in Lynch v. Nurden, and also in Jordin 

 V. Crumby, in which the Court of Exchequer, though expressing a doubt 

 whether the act of the defendant in settiug a spring-gun was illegal, 

 agreed that if it was, the fact of- the plaintiff being a trespasser would 

 be no answer to the action." (/&.) 



It was decided by the Court of Exchequer in Hardcastk Adz. v. South 

 Yorkshire Railway & River Don Gompayiy, in accordance with the 

 principle of the case of Blyth v. Topham, that ivhen the oivner of land 

 makes upon it an excavation, adjoininy a public iray, so that a person 

 walking upon it might, by making a false step, or being affected with a 

 sudden giddiness, or by the sudden starting of a horse, be thrown into 

 the excavation, the party making the excavation is liable for the conse- 

 quences ; but it is otherwise when the excavation is made at some 

 distance from the way, and the person falling into it would be a tres- 

 passer upon the land of the party making the excavation before he 

 reached it. And semble, the proper and true test of legal liability in 

 such cases is whether the excavation is substantially adjoining the 

 way, and these principles apply to actions brought under stat. 9 & 10 

 Vict. c. 93. 



The authorities show that if a)i accident, such as the defendunt driving 

 his cart and horse against the plaintiff, resulted entirely from a superior 

 agency, that is a defence, and may be proved under the general issue ; 

 but a defence stating that there was no negligence on the part of the 

 defendaut, and that the plaintiff slipped from the kerb-stone just as the 



