NEGLIGENT DRIVING. £93 



an action : — It was held by the Court of Queen's Bench 

 that the plaintiff was not disentitled to recover because he 

 had, at some hazard created by the defendants, brought his 

 horse out of the stable. Also, that the case was properly 

 left to the jury on the question whether or not the plaintiff 

 had persisted, contrary to express warning at the time (as 

 to which there was contradictory evidence), in running upon 

 a great and obvious danger (r). 



The mere fact of an accident happening to a very young Where no 

 child wiU not raise a presumption of negligence any more ^^f pf^^oHhe 

 than in the case of an adult. In a case in which a child defendant. 

 three years old strayed upon a railway, and had its leg cut 

 off by a passing train, it was therefore held that in the 

 absence of any evidence to show any negligence on the part 

 of the company, they were not responsible for the injury (t). 



If a person using ordinary care is injured by falling A heap left on 

 over a heap on a highway, the person who left it there is ^^^ lug^way. 

 liable (m). 



But a person who is injured by an obstruction, against Opportunity 

 which he may fall on a highway, cannot maintain an action, "l seeing the 

 if it appear that he was riding with great violence and want 

 of ordinary care, without which he might have seen and 

 avoided the obstruction. Thus Lord EUenborough, C.J., 

 said, " a party is not to cast himself upon an obstruction 

 which has been made by the fault of another, and avail 

 himself of it, if he do not himself use common and ordinary 

 caution to be in the right " (a;). 



The opportunity, however, of seeing stones during the day Running over 

 is no defence to an action for damage caused by running over ^^^^ "' 

 them at night (y). " ' 



When a railway company constructs its line across a Level crossing 

 highway on a level under the sanction of an Act of Parlia- g^j^J^^"'^^'^ 

 ment, it is the duty of the company to keep the crossing in 

 a proper state for the passage of carriages across the rails ; 

 if, therefore, a carriage is damaged in consequence of the 

 rails being too high above the surface of the roadway, the 

 company is liable (z). 



(r) Clayards Y. Dethick, 12 Q. B. Carlisle Spr. Ass. 1850. 



439. (a) Oliver v. North Hastern Bail. 



(t) Singleton v. Eastern Counties Co., L. R., 9 Q. B. 409; 43 L. J., 



iJaa. Co., 7 C. B.,N. S. 287. Q. B. 198. S>ee sXso SadUr y . South 



(u) Tucker v. Axlridge Sighwaij Staffordshire, i-o., Steam Tramways 



Board,5ZJ.V.&l. Co., 23 Q,. B. D. 17; 58 L. J., 



(x) See Sutterfield V. Forrester, n Q. B. 179; 60 L. T., N. S. 344; 



Eist, 61 ; 10 R. R. 433. 37 "W. R. 204— C. A. 



(y) PerRolfe, B., Grieve y. Milton, 



