282 



NEGLIGENCE IN THE USE OF HORSES, ETC. 



held to be 

 accidental 

 death. | 



And the driver 

 is not liable. 



Trotting a 

 waggon along 

 a road. 



Trotting a 

 ■waggon along 

 a street. 



Eemarks in 

 East's Pleas 

 of the Crown. 



Vhere streets 

 are unusually 

 crowded. 



no tvant of care could be imputed to tlie driver, it will be 

 accidental death, and he will be excused (|;). 



Therefore, if the driver of a conveyance use all reason- 

 able care and diligence, and an accident happen through 

 some chance which he could not foresee or avoid, he is not 

 to be held liable for the results of such accident {q). 



Thus, in an old case, where A. was driving a waggon 

 with four horses in the highway at Whitechapel, and he 

 being in the waggon, and the horses upon a trot, they 

 threw down a woman, who was going the same way with a 

 burden upon her head, and killed her. Chief Justice Holt, 

 Justice Tracy, Baron Bury, and the Recorder Lovel, held 

 this to be only a misadventure (r). 



But Lord Holt held in that case, if it had been in a 

 street where people usually pass, it would have been man- 

 slaughter ; but it was clearly agreed that it could not be 

 murder (r). 



It must be taken for granted from this note of the case, 

 that the accident happened in a highway where people 

 did not usually pass (s) ; for otherwise, the circumstance 

 of the driver's being in his cart, and going so much faster 

 than is usual for carriages of that construction, savoured 

 much of negligence and impropriety ; for it was extremely 

 difficult, if not impossible, to stop the course of the horses 

 suddenly in order to avoid any person who could not get 

 out of the way in time. And indeed such conduct in a 

 driver of so heavy a carriage might, under most circum- 

 stances, be thought to betoken a want of due care, if any, 

 though but few, persons might probably pass by the same 

 road. The greatest possible care is not to be expected, 

 nor is it required ; but whoever seeks to excuse himself, 

 for having unfortunately occasioned by any act of his own 

 the death of another, ought at least to show that he took 

 that care to avoid it which persons in similar situations 

 are most accustomed to do (t). 



The fact that streets are usually crowded from any 

 public procession or other cause, instead of excusing a 

 driver when proceeding at his ordinary pace and with 

 ordinary care, requires him to be particularly cautious, and 

 may tend to render him criminally answerable for any 



(p) 1 Hale, 476 ; Fost. 263 

 East's Pleas of the Croivn, 263. 



{q) Reg. y. Murray, 5 Cox, C. 

 509 (Ir.). 



(r) 0. B. Sess. before Mich. 



T. 



1704, M. S. Tracy, 32. 



(s) Unlike Wliiteciiapel of the 

 present day. 



(t) I East's Pleas of the Crown, 

 263. 



