case, then the judge is bound to withdraw the case from the jury." Lord Esher then set out the facts proved and proceeds: "If that be so, there was evidence for the jury upon the question whether there was any want of reasonable care on his (deceased's) part. In saying this, I think I am acting on the view expressed by Lord Cairns in Slattery's Case. He seems in that case to have thought that, if a man had a right to suppose from his knowledge of the practice at the station that an approaching train would whistle, the jury might come to the conclusion that the absence of whistling had thrown him off his guard, and had produced in him a state of mind in which he might not unreasonably suppose that it was unnecessary for him to look out before crossing to see whether a train was coming. So here, I think, in the case of a man who knew the practice at the crossing, the jury might say that the fact that the signalman remained in his house produced in his mind a sense of security which would prevent its being a want of reasonable care not to look up and down the line to see whether a train was coming. think the considerations which I have mentioned are sufficient to determine this case, and to entitle the judge at the trial to decline to withdraw the case from the jury.'

I

Having shortly discussed the principles of the law relating to negligence, it becomes necessary to consider further when, and under what circumstances, the person suffering an injury is entitled to claim damages by way of compensation for such injuries from the person whose negligence caused them. Shortly, it may be said that the liability must be founded on some act which is usually termed the "immediate cause "of the injury complained of. In other words, the person charged with an act of negligence may set up the defence that the consequences of his act were too remote to entitle the person complaining to establish a right to damages. right to damages. The maxim which is most commonly used is that "a man is presumed to intend the natural consequences of his own act." The "immediate or "proximate" cause is that which, as it is necessary to prove, caused the damage complained of, and must be the probable or natural consequence of the act of the person whom it is sought to render liable (y). The question to a great extent overlaps the wider question of negligence,

(y) Cf. Scott v. Shepherd, 1 Sm. L. C.; Sharp v. Powell, L. R. 7 C. P. 259; 41 L. J. C. P. 95.

and most of the cases, dealing with definitions of negligence, deal with the present subject also (2).

The following case illustrates this:-A cart and horse were left unattended in a street, and thereupon some children, playing near, climbed into the cart, one pulling the bridle, which caused the horse to move on, and in consequence of this one child fell down under the wheel and was hurt; it was held that the owner was liable, because it was for the jury to say whether, upon all the circumstances, the defendant's conduct was wanting in ordinary care, and whether the harm to the plaintiff was such a result of it as might have been expected (a). A decision, which apparently to some extent conflicts with that given in the case of Sharp v. Powell (referred to at the commencement of this chapter), really lays down that in a case of active wrong-doing (a barrier of spikes placed in a highway) the rule should be a different one; and that if persons obstruct a road with instruments (or vehicles) dangerous to people lawfully using it, and thereby damage is caused, not proximately, but through the intervention of other circumstances, then the plaintiff is entitled to recover damages (b). Doubtless, also, any person wilfully or negligently putting down or leaving broken glass or nails, or similar material, upon a highway, would be liable for any injury caused to the tires of a motor car or cycle, or for damages sustained by any person in consequence of such glass or nails, in addition to any penalty incurred under sect. 28 of the Towns Police Clauses Act, 1847, or sect. 60 of the Metropolitan Police Act, 1x39 (c).

6

Sir Frederick Pollock, in commenting on the decision in this case (d), says: "The Court did not dispute the correctness of the judgments in Sharp v. Powell as applicable to the circumstances of the particular case,' but their final observations certainly tend to the opinion that in a case of active wrong-doing the rule is different. Such an opinion, it is submitted, is against the general weight of authority, and against the principles underlying the authorities. However, their conclusion may be supported, and may have been to

(z) Cf. Blyth v. Birmingham Waterworks Co., 11 Exch. 781; 25 L. J. Exch.

212.

(a) Lynch v. Nurdin, 1 Q. B. 29; 10 L. J. Q. B. 73: cf. also Cox v. Burbidge, 13 C. B. (N. S.) 430; 32 L. J. C. P. 89; the latter is a case where a horse kicked the plaintiff, after escaping into a high road.

(b) Clark v. Chambers, 3 Q. B. D. 327; 47 L. J. Q. B. 427.

(c) See post, p. 162.

The Law of Torts (2nd edit.), p. 44.

some extent determined, by the special rule imposing the duty of what has been called " consummate caution on persons dealing with dangerous instruments."

It seems, however, that there may be another explanation than that of Sir F. Pollock, namely, the tendency of the Courts to construe the law most strictly as against a defendant who uses either dangerous instruments, or instruments or things of any kind, which are nuisances at common law, but are suffered to be used upon public highways by statute, subject to certain restrictions. Thus, in Powell v. Fall (e), it was laid down by Justice Mellor (and upheld in the Court of Appeal) that where a rick of hay, belonging to the plaintiff, had been set fire to by sparks from a traction engine, propelled by steam power upon a highway, the owner of the engine was liable on the ground that it was a dangerous machine, even though properly constructed, and used without any negligence (f). Where a van attached to a steam plough was left by the side of a highway at night, along which a mare and trap were being driven, and the mare (a kicker, though, there being, no knowledge of vice, there was no contributory negligence,) shied, and ran away, and kicked and killed the driver, it was held that the representatives of the deceased were, under Lord Campbell's Act (g), entitled to compensation, as the unreasonable and dangerous user of the highway were the proximate cause of the injury (h). Again, it is lawful and usual to lay down gas or water mains under a highway; where an authority laid down such mains at a depth which was sufficient for ordinary traffic, but not at such a depth as to be safe from injury caused by the weight of a steam roller, which was lawfully using the highway, in this case, where the injury to the mains was such as to cause an escape of gas and an explosion which did injury to a passerby, the highway board which was using the steam roller was held liable to the person who was injured (i).

(e) 5 Q. B. D. 597; 49 L. J. Q. B. 428; cf. also Gas Light and Coke Co. v. Vestry of St. Mary Abbotts, Kensington, 15 Q. B. D. 1; Brocklehurst v. Manchester, &c. Tramways Co., 17 Q. B. D. 118.

(f) See also Fletcher v. Rylands, L. R. 1 Exch. 265; 37 L. J. Exch. 161; 3 H. L. 330; Vaughan v. Taff Vale Rail. Co., 5 H. & N. 679; 29 L. J. Exch. 247; Rex v. Pease, 4 B. & Ad. 30.

(g) 9 & 10 Vict. c. 93, s. 1.

(h) Harris v. Mobbs, 3 Exch. D. 268.

See also Brown v. Eastern and Midlands Rail. Co., 22 Q. B. D. 391; 58 L. J. Q. B. 212. In this case it was held that a heap thrown up by the roadside, and likely to cause horses to shy, was a nuisance.

(i) Driscoll v. Poplar Board of Works (1898), 62 J. P. 40.

The next question to be considered is, how damages, when the defendant is liable, are to be assessed. It can hardly be expected that juries will measure the amount as carefully as in cases of breach of contract, but still their duty is only to award such reasonable damages as may naturally be expected to result from the injuries caused. It is almost impossible to lay down general rules as to what are reasonable damages; these must necessarily almost entirely depend upon the circumstances of each particular case (). Lord Esher, M. R., in the Court of Appeal, has, however, laid down a rule to be applied in cases where a new trial is asked for on the ground that the damages given are excessive (). He says as follows:-"I think that the rule of conduct is as nearly as possible the same as where the Court is asked to set aside a verdict on the ground that it is against the weight of evidence. If the Court, having fully considered the whole of the circumstances of the case, come to this conclusion only:- -We think that the damages are far larger than we ourselves should have given, but not so large as that twelve reasonable men could not reasonably have given them;-then they ought not to interfere with the verdict. If, on the other hand, the Court thinks that, having regard to all the circumstances of the case, the damages are so excessive that no twelve men could reasonably have given them, then they ought to interfere with the verdict." Under certain circumstances the Court will also interfere on the ground of insufficiency of the damages awarded (m). The Court of Appeal have also at times interfered by reducing the damages, though refusing a new trial, or by ordering a new trial unless the plaintiff consents to a reduction of the damages (n).

It is a very common thing to hear, in cases of personal injury, of claims, in addition to compensation for what may be termed the "objective" injuries received (i.e., broken leg and loss of wages, &c., during incapacity), to be awarded something extra because of a "shock to the system"; this can only be dealt with by the evidence of the doctors, and no doubt a jury is entitled to consider such a claim in making their award. The whole question as to assessing damages for personal injuries-a very fruitful source of litigation in the case of all vehicles upon highways-was discussed in the

(k) See Mayne on Damages.

(1) Praed v. Graham, 24 Q. B. D. at p. 55; 59 L. J. Q. B. 230. (m) Phillips v. L. & S. W. Railway, 5 Q. B. D. 78; 49 L. J. Q. B. 233. (n) See Belt v. Lawes, 12 Q. B. D. 356; Gatty v. Farquharson, 9 Times Rep. 593 In re Beauchamp, (1904) 1 K. B. at p. 574.

Privy Council in 1888 in the case of The Victorian Railways Commissioners v. Coultas (o). In that case the evidence was to the effect that, while crossing a railway in a carriage, the plaintiffs (respondents) were, owing to the negligence of the defendant company (appellants), placed in imminent danger of being killed by a passing train, though no actual collision or impact took place. The medical evidence showed that the female plaintiff received a severe nervous shock from the fright, and that she afterwards suffered from an illness which was the result of the fright, one witness saying that the shock from which she suffered would be a natural consequence of the danger. At the trial in the Colony of Victoria, the jury found negligence on the part of the defendants' servants, and awarded damages. Three points were then reserved for argument before the full Court

(1) Whether the damages awarded by the jury to the plaintiffs, or either of them, are too remote to be recovered?

(2) Whether proof of "impact" is necessary in order to entitle plaintiffs to maintain the action?

(3) Whether the female plaintiff can recover damages for physical or mental injuries, or both, occasioned

by fright caused by the negligent acts of the defendants?

The judgment of the Privy Council (p), after setting out the facts, proceeds-"The rule of English law as to the damages which are recoverable for negligence is stated by the Master of the Rolls in The Notting Hill (q), a case of negligent collision. It is that the damages must be the natural and reasonable result of the defendant's act; such a consequence as in the ordinary course of things would flow from the act. .. According to the evidence of the female plaintiff, her fright was caused by seeing the train approaching, and thinking they were going to be killed. Damages arising from mere sudden terror, unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper. If it were held that they can, it appears to their lordships that it would be extending the liability for negligence much

(o) 13 App. Cas. 222; 57 L. J. P. C. 69. The Notting Hill, 9 P. D. 105, was approved of in this case.

(p) Delivered by Sir Richard Couch, 13 App. Cas. at (q) 9 P. D. 105.

p. 225.