USING POISONED CORN. 861 



Scars V. Lyons was an action of trespass for hroftlrijifi ilir plaintiff's 

 dose and lai/iag poisonM harlei/ upon it to dcstroij his poultry. The 

 defendant had strewn it botli on the plaintiff's premises and his own, 

 into which the fowls soraetiraes escaped, and several of them had died 

 in conseqnence. In summinir up Abbott C.J. told the jury that "It 

 had always been held that for trespass and entry into the house or 

 lands of the plaintiff, a jury might consider not only tho pecuniary 

 damage sustained by the plaintiff, but also the intention with which 

 the act had been done, whether for insult or injury;" and added, 

 " that they were not confined in this case to the mere damage resulting 

 from throwing poisoned barley on the land of the plaintiff, but might 

 consider also the object with which it was thrown, taking care at the 

 same time to guard their feelings against the impression likely to have 

 been made by the defendant's conduct," The plaintiff had a verdict 

 for £50. 



Horses frightened by traction engine on highway. — It was held by 

 Erie C.J., that a plaintiff has a right to recover against the owner of 

 a traction engine used on a highway under 24 & 25 Vict. c. 70, if 

 he knew from his men or other persons, or from the nature of the 

 engine itself, that the engine was calculated by its noise and appear- 

 ance to frighten horses. The defendant has clearly no right to make 

 a profit at the expense of the security of the public {Watkins v. 

 Reddin). 



Evidence of negligence necessary to entitle ijlaintiff to recover. — In an 

 action for an injury occasioned by defendant's negligent driving, the 

 plaintiff to warrant the judge in leaving the case to the jury, must 

 give proof of well-defined negligence on the part of the defendant ; and 

 where the evidence given is equally consistent with there having been 

 no negligence on the part of the defendant, as with there having been 

 negligence, it is not competent for the judge to leave it to the jury to 

 find either alternative ; such evidence must be taken as amounting to 

 no proof of negligence. Foot-passengers, in crossing a highway, are 

 bound to take due caution to avoid vehicles ; and the drivers of 

 vehicles are bound to take due caution to avoid foot-passengers. And 

 per Pollock C.B. : " To sustain an action for an injury caused by the 

 negligent driving of the defendant, the injury must have been caused 

 by the negligence of the defendant only, without the negligence of the 

 plaintiff contributing in any way to the accident " {Cotton v. Wood, 13 

 C. & K., 81). The mere happening of an accident is not sufl&cient 

 evidence of negligence to be left to the jury, but the plaintiff must 

 give some aflfirraative evidence of negligence on the j^art of the defen- 

 dant. Where, therefore, it was shown that the defendant was riding a 



