Chap. IX. the clerk's; and while they were thus driving, the plaintiff was Hired carriages and horses. Cab driver. Unmanageable horses. run over, owing to the negligence of the carman. It was held that the defendant was not liable, for that the carman was not doing the act, in doing which he had been guilty of negligence, in the course of his employment as servant (0). If a person hires a carriage and horses, or horses only, of a jobmaster, either by the day or for a longer period, and the jobmaster selects and appoints the driver, the jobmaster is responsible for any injuries caused by the negligent driving of the vehicle, and not the hirer (p). The hirer may however, in such a case, render himself liable by his own conduct, such as directing the servant to drive in a particular manner, which caused the injury, but this liability is not in respect of the general relation of master and servant (q). Thus, two ladies who had a carriage of their own, had been in the habit of hiring horses and a coachman from a jobmaster, and were in the habit of paying the coachman a fixed sum for each drive, and had provided him with a livery to wear while driving. The coachman on returning from a drive, went into the ladies' house to change his livery, leaving his horses unattended, the horses started off, and injured the plaintiff. It was held that the ladies were not responsible, as the coachman was not their servant, but the servant of the jobmaster (r). It would appear that a cab driver, employed on the usual terms of paying so much a day for his cab, and keeping the rest for himself, is, as between himself and the cab proprietor, apart from the provisions of the Hackney Carriage Acts (s), in the position of bailor and bailee, so that the cab proprietor would not be responsible for the negligent driving of the cab (t). The owner is not responsible for any damage caused by his horse becoming unmanageable through no fault of its rider or driver (u), and provided it is being ridden and driven in a (0) Storey v. Ashton, L. R. 4 Q. B. 476; Mitchell v. Crassweller, 13 C. B. 237; 22 L. J. C. P. 100. As to what comes within the " scope of employ ment" of a servant, see Stevens v. Wood- (p) Laugher v. Pointer, 5 B. & C. 547. (q) McClaughlin v. Prior, 4 M. & G. 48; Quarman v. Burnett, 6 M. & W. 499. (r) Quarman v. Burnett, supra. (s) 1 & 2 Wm. 4, c. 22; 6 & 7 Vict. c. 86. (t) King v. Spurr, 8 Q. B. D. 104; 51 L. J. Q. B. 105; distinguishing Powles v. Hider, 6 E. & B. 207; Venables v. Smith, 2 Q. B. D. 279; see Fowler v. Lock, L. R. 7 C. P. 272. (u) Manzoni v. Douglas, 6 Q. B. D. 145. lawful place. Thus, the defendant's horses, while being driven Chap. IX. by his servant in the public highway, ran away, and became so unmanageable that the servant could not stop them, but could, to some extent, guide them. The defendant, who sat beside his servant, was requested by him not to interfere with the driving, and complied. While unsuccessfully trying to turn a corner safely, the servant guided them so that, without his intending, they knocked down and injured the plaintiff, who was lawfully upon the highway. It was held that there was no negligence on the part either of the defendant or his servant, who did his utmost to prevent the accident, to render the defendant liable (r). Where, however, a servant was exercising his master's horses (which were not thoroughly broken) in a crowded thoroughfare, and they became unmanageable and injured the plaintiff, the master was held responsible (x). If a person wrongfully leaves on a highway an object, such as a steam plough, which frightens a horse, renders it unmanageable, and so causes injury to the driver, the person guilty of the obstruction is responsible for the injuries sustained by the driver (y). When a horse kicks out in consequence of an improper use of the rider's spur, and so injures a person walking on the highway, the rider is guilty of negligence and responsible for the injury of which he was the cause (2). animals. The owner of an animal of a fierce nature, such as a lion or Mischievous tiger, is responsible for any injury it may commit (a). Where the animal is of a domestic nature, such as a horse, dog, or cow, proof of its mischievous propensity must be brought home to the owner to render him liable (b). Thus, where a horse strays on a highway, and without apparent reason, kicks a child, no action will lie against the owner of the horse, unless he knew that the horse was likely to commit such an act (c). If an owner of a dog keeps him properly secured, but another person improperly lets him loose and urges him to mischief, the owner is not liable (d). In an action for negligently keeping a dog, proof that the The scienter. (v) Holmes v. Mather, L. R. 10 Ex. 261; Hammack v. White, 11 C. B. N. S. 588; 31 L. J. C. P. 129. (x) Michael v. Alestree, 2 Lev. 173. (a) Besozzi v. Harris, 1 F. & F. 92. L. J. Q. B. 64. The gist of the action (c) Cox v. Burbidge, 17 C. B. N. S. (d) Fleming v. Orr, 2 Macq. H. L. Cas. 14. Chap. IX. defendant had warned a person to beware of the dog lest he should be bitten, is evidence to go to the jury of the allegation that the dog was accustomed to bite mankind (e). 28 & 29 Vict. c. 60. s. 1. Escape of injurious matter. Gas. Where the plaintiff who was wearing a red handkerchief, was run at and injured by the defendant's bull, the statement by the defendant that he knew the bull would run at anything red, was held to be evidence in support of the scienter (ƒ). If the owner of a dog appoints a servant to keep it, the servant's knowledge of the dog's ferocity is the knowledge of the master (g), and this principle may also extend to a case where the servant has no charge over the dog (h). The knowledge of the wife is the knowledge of the husband (i). The 28 & 29 Vict. c. 60, s. 1, enacts that the owner of a dog shall be liable in damages for injury done to any cattle or sheep by his dog without proof of a previous mischievous propensity in the dog. The term "cattle " in this section includes horses (k). The scienter refers to the mischievous or fierce nature of the animal, as displayed in biting and worrying. The owner of an animal may be liable for an injury caused by it without any proof of the scienter, provided there is proof of negligence on his part. Thus it has been held that a defendant was guilty of negligence in that his two greyhounds, coupled together, rushed against a plaintiff on a high road, knocked him down, and broke his leg (1). If a person brings or accumulates upon his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape and causes damage, he is responsible however careful he may have been, and whatever precautions he may have taken to prevent the damage (m), unless the escape is attributable to vis major or the act of God (n), or authorised by Act of Parliament (o). A company who contract to supply gas are bound to take care that there is no defect in their pipes, and if an explosion takes (e) Judge v. Cox, 1 Stark. 285; Thomas v. Morgan, 2 C. M. & R. 496; Charlwood v. Greig, 3 C. & K. 46. (f) Hudson v. Roberts, 6 Ex. 679; 20 L. J. Ex. 299. (g) Baldwin v. Casella, L. R. 7 Ex. 325; 41 L. J. Ex. 167. (h) Applebee v. Percy, L. R. 9 C. P. 647; 43 L. J. C. P. 365. (i) Gladman v. Johnson, 36 L. J. C. P. 153. As to scienter by a company through their servants, see Stiles v. place in consequence, they are liable for injuries sustained by the Chap. IX. customer to whom the gas is supplied (p). A gasfitter who does his work so negligently that an explosion of gas takes place when a light is brought near the pipe, is responsible to his employer and his employer's servants for any injury they may suffer in consequence (q). trees. If a person allows the branches of trees, the leaves of which are Poisonous poisonous to cattle, to overhang his neighbour's ground, he is guilty of negligence, and if the neighbour's cattle eat of them and are poisoned, he is responsible to him for their loss (r). struction of When an article is supplied for a specified purpose there is Defective conan implied warranty by the manufacturer that it is reasonably chattel. fit for that purpose, and there is no exception as to latent undiscoverable defects. Thus, the plaintiff ordered and bought of a coach-builder a pole for the plaintiff's carriage. The pole broke in use, and the horses became frightened and were injured. In an action for the damage the jury found that the pole was not reasonably fit for the carriage, but that the defendant had been guilty of no negligence. It was held by the Court that the plaintiff was entitled to recover the value of the pole, and also for damage to the horses, provided that a jury found that such damage was the natural consequence of the defect in the pole (s). So a jobmaster supplying a carriage is bound to present it as fit for the purpose for which it is hired as care and skill can make it, and if damage is caused to the hirer by a defect not attributable to mere accident, the jobmaster is liable (t). The liability of a person supplying an article, in respect of injury arising from the negligent construction of such article, may extend beyond the person to whom the article is actually supplied. Thus where the defendant sold a bottle of hairwash to a husband to be used by his wife and the latter was injured through using the same, it was held that the duty of the vendor to use ordinary care in compounding the wash extended to the person for whose use the vendor knew it was purchased (u). (p) Burrows v. March Gas Co., L. R. 7 Ex. 96; 41 L. J. Ex. 46 (Ex. Ch.). (q) Parry v. Smith, 4 C. P. D. 325; 48 L. J. C. P. 731. (r) Crowhurst v. Amersham Burial Board, 4 Ex. D. 5; 48 L. J. Ex. 109; see Wilson v. Newberry, L. R. 7 Q. B. 31; Laurence v. Jenkins, L. R. 8 Q. B. 274; Firth v. Bowling Iron Co., 3 C. P. D. 254; 47 L. J. C. P. 358. (s) Randall v. Newson, 2 Q. B. D. (t) Hyman v. Nye, 6 Q. B. D. 685. Chap. IX. Borrower and lender of chattel. Negligent use of chattel. This liability has been held to extend to all persons whom the person supplying the article invites to make use of it (a), but such liability does not extend to mere volunteers or the general public (y). The duties of gratuitous lender and borrower of a chattel are in some degree correlative. The loan must be taken to be for the purpose of a beneficial use by the borrower; and the borrower is not responsible for reasonable wear and tear, but he is for negligence, for misuse, for gross want of skill in the use, and for anything which may be defined to be legal fraud. The lender is responsible for defects in the chattel, with reference to the use for which he knows the loan is accepted, of which he is aware, and owing to which directly the borrower is injured. By the necessarily implied purpose of the loan, a duty is contracted towards the borrower not to conceal from him those defects known to the lender, which may render the use of the article perilous to the borrower (2). Where the defendant gave the plaintiff a carboy or large bottle of nitric acid to carry without informing him of the dangerous nature of the acid, and the carboy burst, and the acid inflicted dangerous wounds upon the plaintiff and burnt and destroyed his clothes and disabled him, it was held that the defendant was responsible in damages for the injury (a). No liability attaches to the lender of a chattel when he is unaware of its defective state (b). A person is bound to take due care in the management of a chattel that it may not be the cause of injury to another. Thus, where the defendant was uncocking his gun, and the plaintiff was stopping to see it and the gun went off and wounded the plaintiff, it was held that the plaintiff might maintain an action for the injury (c). So where the defendant intrusted a loaded gun to an inexperienced servant girl and the girl pointed the gun in sport at the plaintiff, and drew the trigger and shot him in the eye and blinded him, it was held that the defendant was responsible in (x) Heaven v. Pender, 11 Q. B. D. 503 (C. A.), reversing 9 Q. B. D. 302. (y) Collis v. Selden, L. R. 3 C. P. 495; Winterbottom v. Wright, 10 M. & W. 109; judgment of Brett, M. R., Heaven v. Pender, 11 Q. B. D. at p. 513. (2) Blackmore v. Bristol and “Exeter Rail. Co., 8 El. & B. 1035; 27 L. J. Q. B. 167; see observations on this case in judgment of Cotton, L.J., Heaven v. Pender, supra, at p. 515. (a) Farrant v. Barnes, 11 C. B. N. S. 553; 31 L. J. C. P. 137. (b) McCarthy v. Young, 6 H. & N. 329; 30 L. J. Ex. 227. (c) Underwood v. Hewson, 1 Str. 596. |