294 



NEGLIGENCE IN THE USE OF HORSES, ETC. 



Leaving' the 

 highway. 



Excavation a 



public 



nuisance. 



Steam roller. 



Trespasser 

 may maintain 

 an action. 



If a person leaves the highway and sustains injury, he 

 cannot recover any damages. Thus, where a person stepped 

 aside at night from a highway, and fell into the foundation 

 of a house, and hroke his leg, and brought an action against 

 the defendant, Mr. Justice Cresswell held that there was a 

 wilful departure from the highway, and, in summing up, 

 directed the jury that the first question for them to consider 

 was, whether the excavation made by the defendant pre- 

 vented the public from passing in safety along the highway. 

 A second question, involved in the first, was, whether the 

 defendant was bound to have fenced ofi' the excavation ; 

 and, thirdly, had the defendant tumbled into the hole while 

 passing along the highway. The evidence was that he had 

 departed from the road. The jury found a verdict for the 

 defendant (a). 



But when the newly-made and unfenced excavation for a 

 house adjoins an immemorial public way, which is found by 

 the jury to render the way unsafe to those who use it with 

 ordinary care, it is a public nuisance, though the danger 

 consists in the risk of accidentally deviating from the road ; 

 for the danger thus created may reasonably deter prudent 

 persons from using the way, and thus the full enjoyment of 

 it by the public is, in efiect, as much impeded, as in the case 

 of an ordinary nuisance to a highway (b). And a private 

 injury arising from a public nuisance is the subject-matter of 

 an action for damages (c). 



Where a steam roller, though lawfully on the highway, 

 constitutes a nuisance, the owners are liable for damage 

 caused thereby although they have not been guilty of any 

 negligence, and it is a question for the jury in each case 

 whether the steam roller was or was not a nuisance on the 

 occasion complained of (rf). 



It by no means follows that, because the person injured is 

 a trespasser on the land at the time the injury was sustained, 

 he cannot maintain an action. A trespasser is liable to an 

 action for the injury which he does ; but he does not forfeit 

 his right of action for an injury sustained (f). 



(«) Firth <:. Ackroyd, before Mr. 

 Justice Cresswell, York Spr. Ass. 

 March 10, 1853. 



(b) Barnes v. Ward, 9 C. B. 392 ; 

 JIadlc)j\. Taylor, L. E., 1 C. P. 53. 



(e) Hardcantle v. South Yorkshire 

 Mail. Co., 28 L. J., Ex. 139. See 

 ahoEomiselly. Smyth, 7 C. 13., N. S. 

 731 ; Benjamin v. Storr, L. E., 9 



C. P. 400; 43 L. J., C. P. 162; 30 

 L. T., N. S. 362; 22 W. E. 631. 



(d) Jeffrey v. St. Paiieras Vestry, 

 63 L. J., Q. B. 618. 



((■) Sadler v. Seiiloek, 24 L. J., 

 Q. B. 138; Blake v. Thirst. 2 H. & 

 0. 20 ; Butler- v. Siiiitcr, 7 H. & N. 

 826. 



