NEGLIGENT DRIVING. 281 



a person killed by the upsetting of one of them, for which 

 the driver was tried : — Mr. Justice Patteson in summing up 

 said to the jury, " The question here is, whether you are 

 satisfied that the prisoner was driving in such a negligent 

 manner that, by reason of his gross negligence, he had lost 

 comtnand of his horses ? And that depends on whether the 

 horses were unruly, or whether you believe that he had been 

 racing with the other omnibus, and had so urged his horses 

 that he could not stop them ; because, however he might be 

 endeavouring to stop them afterwards, if he had lost the 

 command of them by his own act, he would be answerable, 

 for a man is not to say, I will race along a road, and when 

 I have got past another carriage, I will pull up. If the 

 prisoner did really race, and only when he got past the other 

 omnibus endeavour to pull up, he must be found guilty ; but 

 if you believe that he was run away with, without any act 

 of his own, then he is not guilty. The main questions are, 

 were the two omnibuses racing; and was the prisoner 

 driving as fast as he could in order to get past the other 

 omnibus, and had he urged his horses to so rapid a pace 

 that he could not control them ? If you are of that opinion, 

 you ought to convict him ; but if his horses ran away of 

 their own accord, without any act of his, he is entitled to an 

 acquittal" (/). 



If a man undertakes to drive another in a vehicle, he is Causing deatli 

 bound to exercise proper care in regard to the safety of the °^ passenger. 

 man under his charge, and if by culpable negligent driving 

 he causes the death of the other, he will be guilty of man- 

 slaughter. But he cannot be found guilty of manslaughter 

 if the deceased himself interfered in the management of 

 the horse and thereby assisted in bringing about the 

 accident {m). 



Contributory negligence is not an answer to a criminal Defence of 



charge, as to a civil action (n). And even if the doctrine contributory 



„°'. ., , ,. ^ i ,, .., negligence. 



01 contributory negligence does apply to criminal cases, 



yet there is no contributory negligence on the part of 



anyone in merely getting into a vehicle and allowing 



himself to be driven, although the driver be perceptibly 



drunk (o). 



When a person has been killed in such a manner that "Where killing 



a person is 



(l) Hex V. Timmins, 7 C. & P. 500. 4 F. & F. 1087, contra— per WU- 



(»») Heff. y. JomK, 22 L. T., N. S. les, J. 

 217; 11 Cox, C. C. .544— Lush, J. (n) Meg. v. Jones, 22 L. T., N. S. 



(k) Heff. y. A'ew, 12 Cox, C. C. 217; 11 Cox, C. C. 544— Lush, J. 

 355— Bj'les, J. See -ffi. v. Birchall, 



