304 



NEGLIGENCE IN THE USE OF HORSES, ETC. 



Where evi- 

 dence is 

 equally con- 

 sistent with 

 negligence 

 and no neg- 

 ligence. 



opposite direction, and turned back ; the result of which 

 was that the plaintiffs wife was knocked down and run 

 over by the omnibus, and was so injured that she died. 

 The only circumstance which was at all suggestive of negli- 

 gence on the part of the defendant was that, though he saw 

 the women cross in front of his omnibus, he had at the 

 moment when they turned back looked round to speak to 

 the conductor, and therefore was not aware of their danger, 

 until warned by a cry of a bystander, when it was too late 

 to avert the mischief. 



It was held that there was in this case no proof of 

 negligence on the part of the defendant, for it was not 

 shown that there existed some duty owing from the defen- 

 dant to the plaintiff, of which there had been a breach. 

 And Erie, C.J.,"6aid, " Where it is a perfectly even balance 

 upon the evidence whether the injury complained of has 

 resulted from the want of proper care on the one side or 

 on the other, the party who founds his claim upon the 

 imputation of negligence fails to establish his case." 

 " One of the plaintiff's witnesses stated that the driver 

 was looking round at the time to speak to the conductor. 

 That clearly would be no affirmative proof of negligence. 

 The man was driving on his proper side, and at a proper 

 pace. As far as the evidence goes, there appears to me 

 just as much reason for saying that the plaintiff's wife 

 came negligently into collision with the defendant's horses 

 and omnibus as for saying that the collision was the result 

 of negligence on the part of the defendant's servant." 

 " A scintilla of evidence, or a mere surmise that there may 

 have been negligence on the part of the defendants, clearly 

 would not justify the Judge in leaving the case to the 

 jury {u). There must be evidence upon which they might 

 reasonably and properly conclude that there was negli- 

 gence." " The very vague use of the term negligence has 

 led to many cases being left to the jury, in which I have 

 been utterly unable to find the existence of any legal duty, 

 or any evidence of a breach of it." 



And in the same case {x) Williams, J., said, "There 

 is another rule of the law of evidence, which is of the 

 first importance, and which is fully established in all the 



(«) Quoting from Williams, J., in 

 Tomney v. London, Brighton, and 

 South Coast Rail. Co., 3 C. B., N. S. 

 146. See also Cornman v. Eastern 

 Counties Rail. Co., 4 H. & N. 781 ; 



Smith V. Midland Rail. Co., 57 L. T., 

 N. S. 813; 62 J. P. 262. 



(x) Cottony. Wood, 8 C. B., K. S. 

 568, ante, p. 303. 



