riage and horses of the plaintiff and have damaged them, if the said carriage and horses of the plaintiff had then continued and remained upon the said highway as aforesaid; wherefore the plaintiff, in a reasonable and necessary endeavor under the circumstances to avoid the said damage, reasonably and necessarily and with proper and reasonable care and skill in that behalf guided and conducted his said carriage and horses to and off one side of the said highway, and in so doing his said carriage and horses, without any negligence, unskilfulness, or default of the plaintiff, but solely and immediately in consequence of the negligence, violence, and improper conduct of the defendant as aforesaid, were upset and injured; whereby the plaintiff was put to expense in repairing his said carriage, and in curing his said horses, and was deprived of the use of his said carriage and horses for a long time, and was put to expense in hiring another carriage and other horses.

For negligence in driving a coach, whereby the plaintiff, a passenger, was obliged to jump off to avoid danger, and was injured. Jones v. Boyce, 1 Starkie, 493. For an injury arising from the negligence of the defendant in leaving his horses unattended. Quarman v. Burnett, 6 M. & W. 499. For spurring a horse while passing close to the plaintiff on a highway, whereby the plaintiff was kicked by the horse. North v. Smith, 10 C. B. N. S. 572.] 5. Against a Railway Company for negligently running a Train against the Plaintiff. (g)

That the defendants were possessed of a railway locomotive engine and train of carriages attached thereto, and were by their servants driving and conducting the same upon a certain railway, and the plaintiff was lawfully crossing the said railway; and the defendants by their servants so negligently drove and conducted the said engine and train that thereby the same ran and were driven against the plaintiff and severely injured him. (h)

6. Against a Railway Company for neligently maintaining and keeping a Crossing.

Lunn v. London & North Western Ry. Co. 35 L. J. Q. B. 105; S. C. nom. Lunt v. London & North Western Ry. Co. L. R. 1 Q. B. 275; Stubley v. London & North Western Ry. Co. L. R. 1 Ex. 21; 35 L. J. Ex. 3; Stapley v. London, Brighton, & South Coast Ry. Co. L. R. 1 Ex. 13; 35 L. J. Ex. 7; Skelton v. London & North Western Railway, 36 L. J. C. P. 249; [L. R. 2 C. P. 631.]

7. For negligently keeping a Railway Station in a Dangerous Condition.

Toomey v. London, Brighton, and South Coast Railway Company, 3 C. B. N. S. 146; 27 L. J. C. P. 39. (i)

(g) Form, Waite v. North Eastern Ry. 27 L. J. Q. B. 117; [El., Bl. & El. 718.] (h) [See Smith v. Old Colony & Newport R. R. Co. 10 R. I. 22, 28.]

(i) See similar forms, Martin v. Great Northern Ry. Co. 24 L. J. C. P. 209; Corn

man v. Eastern Counties Ry. Co. 29 L. J. Ex. 94; [4 H. & N. 781; Longmore v. Great Western Ry. Co. 19 C. B. N. S. 183; Nicholson v. Lancashire &c. Ry. Co. 3 H. & C. 534.]

[7a. For negligently allowing a Dog to be on the Station, which bit

Plaintiff.

Smith v. Great Eastern Ry. Co. L. R. 2 C. P. 4.

76. For negligently providing a Defective Carriage.
Readhead v. Midland Ry. Co. 36 L. J. Q. B. 181.

7c. For negligence in not keeping the Line in a Proper State for the

Traffic.

Blake v. Great Western Ry. Co. 7 H. & N. 987.

7d. For not providing Proper Means for alighting from the Train. Foy v. London & Brighton Ry. Co. 18 C. B. N. S. 225.

Te. For not providing Proper Means of Departure from the Train. Nicholson v. Lancashire &c. Ry. Co. 3 H. & C. 534.

f. For negligently keeping an Obstruction on the Platform of a Station, which the Plaintiff fell over.

Cornman v. Eastern Counties Ry. Co. 4 H. & N. 781.]

8. Against the Owner of a House for placing Gravel on a Road, by which the Plaintiff in driving along the Road was injured. (k) Burgess v. Gray, 1 C. B. 578.

(k) See form, &c. Burgess v. Gray, 1 C. B. 578; and another similar form, Goldthorpe v. Hardman, 13 M. & W. 377; 2 D. & L. 442; the facts of the former case were, that the defendant employed a third person to make a drain for his house, and the workmen of that third person placed the gravel on the road; but inasmuch as the defendant personally superintended the work, it was held that he was responsible; though, semble, he would have been liable without any such superintendence. Bush v. Steinman, 1 B. & P. 404; and Master v. Temperley, 4 Q. B. 298, 5 B. & C. 560. Form against a surveyor. Davis v. Curling, 15 L. J. Q. B. 56. As to the liability of the occupiers of houses for accidents of this kind, see in general, Com. Dig. Act. Case; Burn's J. tit. "Nuisance." [The defendant owned a building with a roof so constructed that snow and ice collected on it from natural causes were liable to fall into the adjoining highway. He let the whole building to a tenant who covenanted to make all repairs, external and internal. A fall of snow from the roof of this building injured the plaintiff while travelling on the highway with due care, and it was held that the defendant was not liable. Leonard v. Storer, 115 Mass. 86; Kirby v. Boylston, Market Association, 14 Gray, 249. See Shipley v. Fifty Associates, 101 Mass. 251; 37

VOL II.

S. C. 106 Mass. 194.] There seems to be a difference in the liability of the possessors of fixed property, and that of the owners of goods, in respect of their being answerable for the acts of their contractors or workmen. Per Parke B. Quarman v. Burnett, 6 M. & W. 499; post, Obs. See, also, Randleson v. Murray, 8 Ad. & E. 209, where the defendant, a warehouseman, was held liable for the fall of a barrel, which a master porter, whom he had engaged to hoist it to his warehouse, occasioned by his negligence; and see 1 C. B. 593, note (a), and 1 C. B. 585, note (a). The trustees under a public road act are not responsible for an injury occasioned by the negligence of the men employed in making or repairing the road. Duncan v. Findlater, 6 Cl. & Fin. 894; [ante, 494, 495, 572.] See, also, Holliday v. St. Leonards, 11 C. B. N. S. 192; 30 L. J. C. P. 361; Harris v. Baker, 4 M. & S. 27; 1 Chit. Pl. Index, Agents" and "Trustees." Where a tenant, on quitting a house, gave notice to a gas company that he should require no more gas, and the company neglected to turn off the gas, which exploded (after the tenant had quitted), in consequence of the interior pipe having been wrongfully removed by some one, it was held the company was not responsible to the owner of the house. Holden v. Liverpool New Gas Co. 15 L. J. C. P. 301.

9. Against a Public Company for negligently taking up the Pavement of a Street, and depositing the Materials so that Plaintiff was injured.

Drew v. New River Company, 6 C. & P. 754. (1)

10. Against a Railway Company for negligently setting fire to Stacks, &c. near which their Trains passed. (m)

Aldridge v. Great Western Ry. Co. 3 M. & G. 515; 1 Dowl. N. S. 247; Pigott v. Eastern Counties Ry. Co. (n) 15 L. J. C. P. 235; [3 C. B. 229;] Vaughan v. Taff Vale Ry. Co. 28 L. J. Ex. 41; [5 H. & N. 679.]

11. For so negligently constructing a Hay-rick on Defendant's Land, that in consequence of its Spontaneous Ignition his Neighbor's House was burnt.

Vaughan v. Menlove, 3 Bing. N. C. 468; 5 C. & P. 525.

[11a. For negligently lighting a Fire which spread to the Close of the

Plaintiff.

Filliter v. Phippard, 11 Q. B. 347.]

12. For leaving a Cart and Horse unattended in the Street, whereby the Plaintiff (a Child), by interfering with them in Play, was injured.

Lynch v. Nurdin, 1 Q. B. 29. (0)

13. For negligently lowering a Barrel from a Warehouse, which fell and injured Plaintiff.

Randleson v. Murray, 8 Ad. & E. 109.

14. For so negligently tying up Defendant's Cow in a Slaughter-house, that it got loose and killed Plaintiff's Cow.

Lloyd v. Walkey, 9 C. & P. 771.

15. For negligently working a Mine under the Land of Plaintiff and his Tenant, whereby the Support was weakened.

Harris v. Ryding, 5 M. & W. 60.

(1) When proper to sue the contractor, instead of the company, Allen v. Hayward, 15 L. J. Q. B. 99; [7 Q. B. 960.] And see ante, Obs. 572, 573.

(m) A railway company are not liable for accidental fires caused by their engines if they are not guilty of negligence, and have taken all reasonable precautions. Vaughan v. Taff Vale Ry. Co. 29 L. J. Ex. 247; [5 H. & N. 679; Freemantle v. London & North Western Ry. Co. 31 L. J. C. P. 12; 10 C. B. N. S. 89. [See Smith v. Old Colony & Newport R. R. Co. 10 R. I. 22.]

(n) It was held that the mere fact of a fire having been caused by a spark from a steam engine, was primâ facie evidence of negligence; and see as to this point, Carpue v. London & Brighton Ry. Co. 5 Q. B. 747 ; cited ante, Obs. 564, 565.

(0) The form in Lynch v. Nurdin is still good, though the principle of contributory negligence therein laid down is overruled by Abbott v. Macfie, 33 L. J. Ex. 177; 2 H. & C. 744, where see a form. See, also, Mangan v. Atherton, 35 L. J. Ex. 161; L.

R. 1 Ex. 239.

16. For not keeping the Shaft of a Mine fenced, whereby Plaintiff's Horse fell in.

Sybray v. White, 1 M. & W. 435.

[17. By a Servant against his Master for employing him to work upon an Unsafe Scaffolding.

That the plaintiff was employed [as a bricklayer] by the defendant to do certain work for the defendant upon a certain scaffolding constructed by the defendant for that purpose, which said scaffolding was, by the negligence and default of the defendant, constructed unsafely and with defective and improper materials, and was in an unsafe condition and unfit for the purpose aforesaid, which the defendant well knew, but of which the plaintiff was ignorant; and by reason of the premises, whilst the plaintiff was so employed [as such bricklayer] as aforesaid doing the said work upon the said scaffolding, the said scaffolding broke and gave way, and thereby the plaintiff was thrown to the ground, and his leg was broken, and he was permanently injured and rendered unfit for work, and incurred expense for medical attendance.

Like counts. Tarrant v. Webb, 18 C. B. 797; Roberts v. Smith, 2 H. & N. 213.

Like count for providing an unsafe ladder for the servant's use; Williams v. Clough, 3 H. & N. 258; for employing the servant to work in an unsafe building; Brown v. Accrington Cotton Spinning Co. 3 H. & C. 511.

Like count for employing the plaintiff to cut up carcases of cattle which defendant knew to be diseased, whereby plaintiff became infected with the disease. Davies v. England, 33 L. J. Q. B. 321.

Like count for employing the servant to work in a mine in a dangerous state. Mellors v. Shaw, 1 B. & S. 437; Hall v. Johnson, 3 H. & C. 589.

Like count for negligently keeping the machinery at the mouth of the mine in a dangerous state. Griffiths v. Gidlow, 3 H. & N. 648; Senior v. Ward, 1 El. & Bl. 385; Ashworth v. Stanwix, 30 L. J. Q. B. 183.

18. For Damage to the Plaintiff's House by the Defendant negligently pulling down the Adjoining House. (p)

(Venue local.) That the defendant so negligently and unskilfully pulled down a house, adjoining the dwelling-house of the plaintiff, that the walls, floors, and ceilings of the said dwelling-house of the plaintiff were shaken, cracked, and damaged, and bricks, tiles, wood, dust, and rubbish fell from the said house into and upon the said dwelling-house of the plaintiff, and broke the windows thereof, and damaged the furniture and goods of the plaintiff therein; whereby the plaintiff incurred expense in repairing the said walls, floors, ceilings, and windows of his said dwelling-house, and his said furniture and goods, and lost the use and enjoyment of his said dwelling-house, goods, and furniture for a long time.

(p) [An action may be maintained for any damage caused to the plaintiff's house by pulling down the adjoining house in a negligent and improper manner, as distinct from the damage done by the removal of the sup

port to which the plaintiff was entitled. Dodd v. Holme, 1 Ad. & E. 493; Langford v. Woods, 7 M. & G. 625; Bradbee v. Christ's Hospital, 4 M. & G. 714; Trower v. Chadwick, 3 Bing. N. C. 334; 6 Ib. 1.]

Like counts: Dodd v. Holme, 1 Ad. & E. 493; Langford v. Woods, 7 M. & G. 625; Trower v. Chadwick, 3 Bing. N. C. 334; Emblen v. Myers, 6 H. & N. 54; Butler v. Hunter, 7 H. & N. 826. A like count, with a count for injuries done to the plaintiff's house by negligently underpinning the party-wall. Bradbee v. Christ's Hospital, 4 M. & G. 714. For injuries done to the plaintiff's house by negligently constructing a sewer in the neighborhood. Jones v. Bird, 5 B. & Ald. 837; Grocers' Company v. Doune, 3 Bing. N. C. 34; Ruck v. Williams, 3 H. & N. 308. For negligently keeping a sewer on the defendant's land, whereby an overflow of the contents was discharged on the plaintiff's premises. Alston v. Grant, 3 El. & Bl. 128.]

NUISANCE.

OBS. Anything offensive erected or done, so as to render the house or land of another useless and unfit for occupation, is a private nuisance, for which an action will lie. [Smoke, noise, and smells, may severally constitute a nuisance, and be the ground for an action or for an injunction. Crump r. Lambert, L. R. 3 Eq. 409. A material addition to a previously existing nuisance is separately actionable. Crump v. Lambert, supra.] For a public nuisance no action will lie unless the plaintiff has sustained_some_particular damage more than the rest of the public. Winterbottom v. Lord Derby, 36 L. J. Ex. 194; L. R. 2 Ex. 316; Rickett v. Metropolitan Ry. Co. 36 L. J. Q. B. 205; [5 B. & S. 156;] L. R. 2 H. L. 175; Wilkes v. Hungerford Market Company, 2 Bing. N. C. 281; Dimes v. Petley, 15 Q. B. 276; 19 L. J. Q. B. 449. [See Hartshorn v. South Reading, 3 Allen, 501; Willard v. Cambridge, 3 Allen, 574; Quincy Canal v. Newcomb, 7 Met. 276; Brainard v. Connecticut River R. R. 7 Cush. 510, 511; Brightman v. Fairhaven, 7 Gray, 271; Harvard College v. Stearns, 15 Gray, 1; Stetson v. Faxon, 19 Pick. 147; Thayer v. Boston, 19 Pick. 511, 514; Smith v. Boston, 7 Cush. 255; Fall River Iron Works, v. Old Colony &c. R. R. Co. 5 Allen, 221; Water Co. v. Ware, 16 Wallace, 574; Griffin v. Sanbornton, 44 N. H. 246, 248, 249; Eastman v. Meredith, 36 N. H. 284; Farnum v. Concord, 2 N. H. 392; Lyme Regis v. Henley, 2 Cl. & Fin. 331. The rule was stated with some limitations and qualifications in Wesson v. Washburn Iron Co. 13 Allen, 95.] See, in general, 9 Co. 53 b, 59 a; Com. Dig. Action on the Case for a Nuisance; Bac. Abr. Nuisance; 3 Bl. Com.; St. Helens Smelting Company . Tipping, 11 H. L. Cas. 642; 35 L. J. Q. B. 66.

How to state the injury, see Fitzsimons v. Englis, 5 Taunt. 534; King v. Williamson, 1 D. & R. 35; 1 Chit. Pl. 7th ed. 401-403.

The action may be brought either against the person who originally caused the nuisance, or against the person occupying the land and permitting the nuisance. R. v. Pedley, 1 Ad. & E. 822; Penruddock's case, 5 Co. Rep. 101 a. See Bartlett v. Baker, 34 L. J. Ex. 8; [3 H. & C. 153;] Salmons v. Bensley, Ry. & M. 189; [Angell Watercourses, §§ 402, 403; Sewall J. in Staple v. Spring, 10 Mass. 74; Hodges v. Hodges, 5 Met. 205; Curtice v. Thompson, 19 N. H. 471; Eastman v. Amoskeag Manuf. Co. 44 N. H. 143, 156; Baldwin ɛ. Calkins, 10 Wend. 167; Beidelman v. Foulke, 5 Watts, 308; Pillsbury v. Moore, 44 Maine, 156; Hughes v. Mung, 3 H. & McHen. 441. As to notice to a purchaser, see Noyes v. Stillman, 24 Conn. 15; Denio J. in Brown v. Cayuga &c. R. R. Co. 2 Kernan, 492; Woodman v. Tufts, 9 N. H. 88; Eastman v. Amoskeag Manuf. Co. 44 N. H. 143; Johnson v. Lewis, 13 Conn. 303; Branch v. Doane, 17 Conn. 402, 418; Pillsbury v. Moore, 44 Maine, 156, 157. Where the nuisance is caused by real property or the use of real property, the occupier is primâ facie liable, and not the owner merely as owner; the latter can be charged only on some special ground of liability. Russell e. Shenton, 3 Q. B. 448; Chauntler v. Robinson, 4 Ex. 163, 169; Cheetham e. Hampson, 4 T. R. 318; Bishop v. Trustees of Bedford Charity, 1 El. & Bl. 697; Pickard v. Smith, 10 C. B. N. S. 470; Robbins v. Jones, 15 C. B. N. S. 221.