ANIMALS STRAYING FROM THE HIGHWAY. 283 



to be in a better position than the owner of a field? It seems 

 to us that the writer has here fallen into a fallacy. His idea 

 seems to be that, because it is a reasonable and usual act for 

 a shopkeeper to have his door open, therefore he is entitled 

 to indemnity from some one else equally innocent from the 

 consequences of so doing. It is a usual and reasonable thing 

 to run, in the business of life, the risk of remote and improb- 

 able contingencies for the sake of obvious and immediate ad- 

 vantage; but it does not follow, if the contingency happens, 

 that the consequences can be imposed on some one else. So 

 it is a usual thing, no doubt, to have a shop door open, but 

 it does not follow that a greater burthen is thereby to be cast 

 on a person using the highway for a lawful purpose than if 

 the shop had been a field. . . . The way our contemporary 

 seeks to put the case is that there is a general duty to keep 

 cattle from straying, but that, in the case of an unfenced field, 

 the owner of the field having neglected an ordinary and usual 

 precaution — viz., , that of fencing — cannot complain of the 

 consequences of the animals straying, whereas, in the case of 

 the shop, the owner of the shop has not neglected any usual 

 precaution, because shop doors are usually left open. This is 

 plausible but in our opinion utterly fallacious. It mixes up 

 the question of absolute duty to prevent a thing and duty to 

 use all reasonable dilig-ence to prevent it. It is clearly wrong 

 to say . . . that there is a general duty to keep cattle from 

 straying from the highway, as distinguished from a duty to 

 use due diligence to keep them from straying from the high- 

 way, and the onus is therefore cast on our contemporary of 

 showing why a shop differs from a field. The difference, he 

 says, is simply that a shopkeeper usually keeps his premises 

 open, but the question is whether, doing so for his own pur- 

 poses, he must not take upon himself the consequent risk. 

 Why is my lawful use of the highway to be made unsafe and 

 burdensome because of the particular use which the adjacent 

 owner chooses to make of his premises?" ^*^ Another argu- 



•" 27 Sol. Jour. 595. 



