under the horses' feet at that particular moment. Again if a horse being ridden (y) or driven (z) in an ordinary manner runs away without apparent cause, and in spite of the rider's or driver's efforts trespasses on the footway and there does damage, this is not evidence of negligence. The plaintiff ought to show positively want of care, or want of skill, or that the owner or person in charge of the horse knew it to be unmanageable. "To hold that the mere fact of a horse bolting is per se evidence of negligence would be mere reckless guesswork" (a).

Sometimes it is said that the burden of proof is on the plaintiff to show that he was himself using due care, and it has been attempted to make this supposed principle a guide to the result to be arrived at in cases where the defence of contributory negligence is set up. This view seems to be rather prevalent in America (b), but in the present writer's opinion it is unsound. The current of English authority is against it, and it has been distinctly rejected in the House of Lords (c). What we consider to be the true view of contributory negligence will be presently explained.

Where there is contract or undertaking. This general principle has to be modified where there is a relation of contract between the parties, and (it should seem) when

(y) Hammack v. White (1862), 11 C. B. N. 8. 588, 31 L. J. C. P. 129.

(z) Manzoni v. Douglas (1880), 6 Q. B. D. 145, 50 L. J. Q. B. 289, where it was unsuccessfully attempted to shake the authority of Hammack v. White. The cases relied on for that purpose belong to a special class.

(a) Lindley J., 6 Q. B. D. at p. 153. (b) E. g. Murphy v. Deane, 101 Mass. 455.

(c) Wakelin v. L. & S. W. R. Co. (1886), 12 App. Ca. 41, 47, 51, 56 L. J. Q. B. 229, per Lord Watson and Lord Fitzgerald.

Where there is contract or undertaking. In Chapman v. New Haven Railroad Co. (19 N. Y. 341), it appears that there was a collision between the trains of two railroad companies, by which the plaintiff, a passenger in one of them, was injured. It was held, that the passenger by the railroad was not so identified with the proprietors of the train conveying him, or with their servants, as to be responsible for the negligence, and

there is a personal undertaking without a contract. A coach runs against a cart; the cart is damaged, the coach is upset, and a passenger in the coach is hurt. The owner of the cart must prove that the driver of the coach was in fault. But the passenger in the coach can say to the owner: "You promised for gain and reward to bring me safely to my journey's end, so far as reasonable care and skill could attain it. Here am I thrown out on the road with a broken head. Your contract is not performed; it is for you to show that the misadventure is due to a cause for which you are not answerable" (d).

When a railway train runs off the line, or runs into another train, both permanent way and carriages, or both trains (as the case may be) being under the same company's control, these facts, if unexplained, are as between the company and a passenger evidence of negligence (e).

(d) In other words (to anticipate part of a special discussion) the obligation does not become greater if we regard the liability as ex delicto instead of ex contractu; but neither does it become less.

(e) Carpue v. London & Brighton R. Co. (1844), 5 Q. B. 747, 751, 13 L. J. Q. B. 138; Skinner v. L. B. & S. C. R. Co. (1850), 5

Ex. 787.

that he might recover against the proprietors of another train for injuries sustained for the collision through the negligence although there was such negligence in the management of the train conveying him as would have defeated an action by its owners. See Dyer v. Erie Ry. Co., 71 N. Y. 228; Kansas City R. etc. Co. v. Stoner, 49 Fed. Rep. 209; 4. U. S. App. 109; 1C. C. A. 231; Transfer Co. v. Kelly, 36 Ohio St. 86; Wabash, St. L. & P. Ry. Co. v. Shacklet, 105 Ill. 364; Danville etc. Co. v. Stewart, 2 Metc. (Ky.) 119; Louisville etc. R. Co. v. Case, 9 Bush, 728; Cuddy v. Horn, 46 Mich. 596; State v. Boston & M. R. Co., 80 Me. 430; 15 At. Rep. 36; Holzab v. Railroad Co., 38 La. An. 185; 58 Am. Rep. 177.

"There is no distinction in principle whether the passenger be on a public conveyance like a railroad train or an omnibus, or be on a hack bired from a public stand in the street for a drive. Those on a hack do not become responsible for the negligence of the driver if they exercised no control over him further than to indicate the route they wish to travel or the places to which they wish to go." Little v. Hackett, 116 U. S. 379. See New York etc. R. Co. v. Steinbrenner, 47 N. J. L. 161.

In like manner if a man has undertaken, whether for reward or not, to do something requiring special skill, he may fairly be called on, if things go wrong, to prove his competence: though if he is a competent man, the mere fact of a mishap (being of a kind that even a competent person is exposed to) would of itself be no evidence of negligence. We shall see later that, where special duties of safe keeping or repair are imposed by the policy of the law, the fact of an accident happening is held, in the same manner, to cast the burden of proving diligence on the person who is answerable for it, or in other words raises a presumption of negligence. This is said without prejudice to the yet stricter rule of liability that holds in certain

cases.

Things within defendant's control. Again there is a presumption of negligence when the cause of the mischief was apparently under the control of the defendant or his servants. The rule was declared by the Exchequer Chamber in 1865 (f), in these terms:

"There must be reasonable evidence of negligence.

"But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen

(f) Scott v. London Dock Co., 3 H. & C. 596, 34 L. J. Ex. 220.

Things within defendant's control. The limited number of American cases on this subject support the statement of the text. Thus, in Treadwell v. Whittier (80 Cal. 574; 19 N. E. Rep. 331), it was held, that a plaintiff injured through the fall of a hydraulic elevator operated by the defendants, in which he was carried as a passenger, need only prove that he sustained injury by the breaking of the machinery by which he was carried, and that such machinery was under the control and management of the defendants, in order to make a case raising a presumption of negligence on the part of the defendants. See Dehring v. Comstock, 78 Mich. 153; Gardner v. Bennett, 38 N. Y. 197; Blake v. Ferris, 5 N. Y. 48; Kelly v. Mayor, 11 Id. 432; Vincent v. Cook, 4 Hun, 318; Robinson v. N. Y. Cent. etc. R. Co., 65 Barb. 155.

if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

Therefore if I am lawfully and as of right (g) passing in a place where people are handling heavy goods, and goods being lowered by a crane fall upon me and knock me down, this is evidence of negligence against the employer of the men who were working the crane (h).

Common course of affairs judicially noticed. The court will take judicial notice of what happens in the ordinary course of things, at all events to the extent of using their knowledge of the common affairs of life to complete or correct what is stated by witnesses. Judges do not affect, for example, to be ignorant that the slipping of one passenger out of several thousand in hurrying up the stairs of a railway station is not an event so much out of the run of pure accidents as to throw suspicion on the safety of the staircase (i).

On evidence sufficient in law, question is for jury. When we have once got something more than an ambiguously balanced state of facts; when the evidence, if

(g) That is not merely by the defendant's licence, as will be explained later. (h) 3 H. & C. 596, Crompton, Byles, Blackburn, Keating, JJ., diss. Erle C. J. and Mellor J.; but no dissenting judg

ment was delivered, nor does the precise ground of dissent appear.

(i) Crafter v. Metrop. R. Co. (1866), L. R. 1 C. P. 300, 35 L. J. C. P. 132.

Common course of affairs judicially noticed. In the case of Harris v. Cameron (81 Wis. 239; 51 N. W. Rep. 437), where the facts, in substance, were that a father had purchased for his eleven year old son, an air gun, intended and commonly used as a toy and play-thing but by the careless use of which by another boy, to whom the son had loaned it, the eye of a third boy was destroyed. The court said: "This court can take judicial knowledge of the nature and use of this air gun as it can of 'beer' (Briffitt v. State, 58 Wis. 39; 16 N. W. Rep. 39); or of 'gas' (Shepherd v. Gas-Light Co., 6 Wis. 539); or of an express or freight 'car' (Nichols v. State, 68 Wis. 416; 32 N. W. Rep. 543)."

believed, is less consistent with diligence than with negligence on the defendant's part, or shows the non-performance of a specific positive duty laid on him by statute,

On evidence sufficient in law, question for the jury. The rule stated in the text is recognized in America. See Cumberland R. Co. v. Maugans, 61 Md. 53; Lasky v. Canadian P. Ry. Co., 83 Me. 461; 22 At. Rep. 368; C. B. U. P. R. Co. v. Hotham, 22 Kan. 41. The classification of the cases within the province of the jury announced by editors Russell and Minor (16 Am. & Eng. Enc. of Law, 466), is: "1. When the facts which, if true, would constitute evidence of negligence, are controverted. 2. When such facts are not disputed, but there may be a fair difference of opinion as to whether the inference of negligence should be drawn. 3. When the facts are in dispute and the inferences to be drawn therefrom are doubtful." See Pittsburg etc. R. R. Co. v. Andrews, 39 Md. 444; Brahm v. Schwartz (Pa.), 18 At. Rep. 643; Maher v. Manhattan Ry. Co., 53 Hun, 510; 6 N. Y. S. Rep. 309; Richard v. Schleusner, 41 Minn. 49; 42 N. W. Rep. 599; Richmond & D. R. R. Co. v. Howard, 79 Ga. 44; Fiske v. Forsyth Dyeing Co., 57 Conn. 118; G. C. & S. F. Ry. Co. v. Greenlee, 70 Tex. 533; Needham v. L. & N. R. Co., 85 Ky. 423; Ilwaco Ry. & Nav. Co. v. Hedrick, 1 Wash. St. 446; 25 Pac. Rep. 335; Quirk v. Holt, 99 Mass. 164; Johnson v. Bruner, 61 Pa. St. 58; Balt. & O. R. Co. v. Boteler, 38 Md. 568; Kansas P. Ry. Co. v. Richardson, 25 Kan. 391; McCready v. South Car. R. R. Co., 2 Strobh. 356; Augusta & K. R. Co. v. Killian, 79 Ga. 234; 4 S. E. Rep. 165; Nugent v. Boston, C. & M. R. Corp., 80 Me. 62; 12 At. Rep. 797; Louisville & N. R. Co. v. Mitchel, 87 Ky. 327, 8 S. W. Rep. 706; Chautauqua Lake Ice Co. v. McLuckey (Pa.), 11 At. Rep. 616; Branham v. Central Railroad, 78 Ga. 35; 1 S. E, Rep. 274; New York and C. M. S. & Co. v. Rogers, 11 Colo. 6; 16 Pac. 719; Abel v. President, etc. Co., 103 N. Y. 581; 57 Am. Rep. 773; Morse v. Belfast, 77 Me. 44; Lesaw v. Maine Cent. R. Co., Id. 85; Dexter v. McCready, 54 Conn. 171; Stoker v. City of Minneapolis, 32 Minn. 478; Colorado Cent. R. Co. v. Martin, 7 Colo. 592; Fassett v. Roxbury, 55 Vt. 552; Ruland v. South Newmarket, 59 N. H. 291; Village of Jefferson v. Chapman, 127 Ill. 437; 20 N. E. Rep. 33; Ravencraft v. Missouri Pac. Ry. Co., 27 Mo. App. 617; Dealey v. Muller, 149 Mass. 432; 21 N. E. Rep. 763; City of Champaign v. Jones, 132 Ill. 304; 23 N. E. Rep. 1125; Frankord & B. T. Co. v. Phila. & T. R. Co., 54 Pa. St. 345; Texas & P. Ry. Co. v. Murphy, 46 Tex. 356; Sloan v. Central Iowa R. Co., 62 Ia. 728; 11 Am. & Eng. R. Cas. 145; Griffin v. Auburn, 58 N. H. 121; Texas etc. R. Co. v. Levi, 59 Tex. 674; 13 Am. & Eng. R. Cas. 464; White v. Missouri Pac. R. Co., 31 Kan. 280; 13 Am. & Eng. R. Cas. 473; Hathaway v. East Tennessee, etc. R. Co., 29 Fed. Rep. 489; Orange etc. R. Co. v. Ward, 47 N. J. L. 560; Tyler v. New York etc. R. Co., 137 Mass. 238; 19 Am. & Eng. R. Cas. 296; Grabel v. Wapello Coal Co., 30 W. Va. 228; Ferry v. Manhattan P. Co., 54 N. Y. Superior Ct. 325; Drevis v. Woods, 71 Wis. 329; Baldwin v. St.