NEGLIGENT DRIVING. 295 



The proper and true test of legal liability in these cases True test of 

 is, whether the excavation be substantially adjoining the ^^sal liability. 

 way. When an excavation is made adjoining a public 

 way, so that a person walking on the public way might, 

 by making a false step, or being affected with sudden 

 giddiness, or, in the case of a horse or carriage, who 

 might by the sudden starting of the horse be thrown into 

 the excavation, it is reasonable that the person making 

 such an excavation should be liable for the consequences. 

 But it would not be reasonable that he should be liable for 

 the consequences, when the excavation is made at some 

 distance from the way, and the person falling into it 

 would be a trespasser upon the defendant's land, before he 

 reached it (e). 



But it is not only when injury results to persons using Owners of 

 a public way from the negligence of adjoining proprietors, pr"'at« ways 

 that an action lies. It lies also against the owner of a for negli- 

 private way for injury to persons lawfully, and by his gence. 

 permission, using it, if caused by the negligence of his 

 servants, and if not arising from the risks attendant on 

 the ordinary nature of the business carried on, as where 

 the injury was caused by negligently lowering goods from 

 a warehouse, under which the private way passed (/). 



Where the defendant's horse by the negligence of his Injury to 

 servant ran away with a cart and turned into the yard of personunex- 

 the defendant's house, which opened on to the highway, defendant's 

 and the plaintiff's wife who happened to be paying a visit at premises. 

 the house ran out into the yard to see what was the matter, 

 when she was met and knocked down by the horse and cart, 

 it was held that as the defendant's servant was not bound to 

 anticipate that the woman would be in the yard, there was 

 no duty on the part of the defendant towards her, and that 

 the action was therefore not maintainable {(f). 



Where one person having a right over a private road Obstruction 

 causes an obstruction which results in an injury to another ^'^i^^^Te^road^ 

 person having a similar right, the person causing the ob- intervening 

 struction is liable. In Clark v. Chambers (h), the defen- act of third 



party. 



(«) Sardcastle T. South Yorkshire also MurUy v. Grove, 46 J. P. 360. 

 Mail. Co., 28 L. J., Ex. 139. See (g) ToUmusen v.Uavies, 58 L. J., 



also Hounsell t. Smyth, 7 C. B., N. S. Q. B. 98— C. A. See also Batchelor 



731; Benjamin v. Storr,!!. K., 9 v. Fortesctie, 11 Q. B. D. 474 — 



C. v. 400; 43 L. J., C. P. 162; C. A. 



30 L. T., N. S. 36^; 22 W. E. (A) Clark y. Chambers, ZQ,.B.V). 



631. 327 ; 47 L. J., Q. B. 427 ; 38 L. T., 



(/) Gallagher v. Sumphery, 6 L. N. S. 454. 

 T., N. S. 684 ; 10 W. K. 664. See 



