NEGLIGENT DRIVING. 305 



Courts, viz., that where the evidence is equally consistent 

 with either view, — with the existence or non-existence of 

 negligence, — ^it is not competent to the Judge to leave the 

 matter to the jury." 



So, in a case in which the defendant's horse, being on When a horse 

 a highway, kicked the plaintiif, a child who was playing f'.^?^°^ "^ * 

 there. There being no evidence to show how the horse kifked^a child, 

 got to the spot, or that the defendant knew that he was 

 there, or that the defendant knew that he was accustomed 

 to kick, or that the horse was accustomed to kick, or what 

 induced him to kick the child, it was held that there was 

 no evidence from which a jury would be justified in in- 

 ferring that the defendant had been guilty of actionable 

 negligence («/). 



In Abbott V. Freeman (s), the defendant was the pro- Horse kicking 

 prietor of a yard and premises used for the sale of horses. '^^ ' 

 The plaintiff attended a sale, and was walking up the 

 yard behind a rosv of spectators, who were watching a 

 horse then on sale. In order to show the horse's pace, a 

 servant of the defendant led it with a halter down a lane 

 formed by the spectators on one side, and a blank wall on 

 the other. There was no barrier between the horse and 

 the spectators, and when the horse was about ten yards 

 from the plaintiff, another servant of the defendant struck 

 it with a whip in order to make it trot. On being struck 

 the horse swerved into and through the crowd, and kicked 

 and injured the plaintiff. It was a usual thing for a man 

 to be stationed with a whip at the particular point when 

 horses were brought out for sale. There was no evidence 

 as to the kind of blow that was given, nor the character of 

 the horse, nor how it was being led, nor that it was custo- 

 mary to put a barrier for the protection of the public in 

 yards where horses were being sold. The plaintiff sued 

 the defendant to recover damages for injuries caused by the 

 negligence of the defendant's servant ; and it was held that 

 there was no evidence upon which the jury could reason- 

 ably find negligence on the part of the defendant. 



But there are cases in which the mere occurrence of Accident itself 

 an accident is prima facie proof of negligence, the pre- affirmatiTe 

 sumption depending upon the nature of the accident, proof of neg- 

 Thus in a case in which the plaintiff, while walking in a ligence. 

 street in front of the house of a flour- dealer, was injured 



{y) Cox V. Burbidge, 13 C. B., Eeversing 34 L. T., N. S. 544— 

 N. S. 430. Ex. D. 



(«) 35 L. T., N. S. 783— C. A. 



0. X 



