2 Rol. Abr. 548, Hob. 134, F. Moore 864, Michael v. Alestree, 2 Lev. 172, 1 Ventr. 295, 3 Keble 650, and Leame v. Bray, 3 East 593.

H. James now showed cause.-If a man intentionally commits an unlawful act, he is responsible for all the consequences which may reasonably be expected to flow from such an act. So, if he is guilty of negligence in the doing of a lawful act, and the natural and proximate result is injury to a third person, he is liable: see Scott v. Shepherd, 2 Sir W. Bl. 892, and the authorities collected in the notes to that case in Smith's Leading Cases, 4th edit. 343. In all these cases the intention of the party was to do the act from which the mischief ensued. There was no such intentional acting here. There was nothing to show that the horse was ridden negligently, or that the rider knew him to be vicious or restive. In Gibbons v. Pepper, 1 Lord Raym. 38, 4 Mod. 404, 2 Salk. 637, it seems to have *590] been held that a person who causes the accident by spurring

the horse would be liable. [WILLES, J.-Incautiously using the spur at an inauspicious moment was recently held in this Court to be some evidence of negligence: see North v. Smith, 10 C. B. N. S. 572 (E. C. L. R. vol. 100).] Negligently driving on a dark night on the wrong side of the way, was held in Leame v. Bray, 3 East 593, to render the party liable in trespass, though he were no otherwise blameable. In Michael v. Alestree, 2 Lev. 172, 1 Ventr. 295, the defendant was guilty of negligence. So also in Wakeman v. Robinson, 1 Bingh. 213 (E. C. L. R. vol. 8), 8 J. B. Moore 63 (E. C. L. R. vol. 17), where the defendant pulled the wrong rein. Templeman, app., Haydon, resp., 12 C. B. 507 (E. C. L. R. vol. 74), is the strongest case against the defendant. The marginal note there is scarcely borne out by the facts. The appeal was dismissed on the ground that there was no erroneous decision (by the County Court Judge) in point of law. The remarks of Maule, J., show that the Court considered there was evidence of negligence on the part of the defendant. 'Where," he says, "a cart is defective, or a horse is possessed of certain qualities, it may be negligence on the part of the driver if he does not deal with them according to their respective conditions or qualities. If a horse is full of life and spirit, it necessarily demands more care than one which is sluggish and worn out. So, a cart that is infirm requires to be driven more steadily than one which has undergone less wear and tear. And it may well be that a failure of conduct in respect of either would amount to negligent driving." May v. Burdett, 9 Q. B. 101 (E. C. L. R. vol. 58), which is frequently cited, is hardly applicable here: the injury there arose from a monkey, an animal not domesticated. Nor is this like the case of Christie v. Griggs, 2 Campb. 79, where the action was founded on the contract of a stage-coach proprietor safely to carry his *5911 passengers. It may be urged that the defendant was not law

fully riding under the circumstances in Finsbury Circus; and the Metropolitan Police Act, 2 & 3 Vict. c. 47, s. 54, may be relied on. That section prohibits, amongst other things, the " exercising, training, or breaking of any horse" in any thoroughfare or public place within the limits of the metropolitan police district: but, to bring a person within that section it must be shown that he is merely exercising, training, or breaking the animal, to the annoyance of the inhabitants or passengers, which there is no pretence for saying that

this defendant was doing. The true principle which governs these cases is that which was laid down in a recent case in this Court, of Cotton v. Wood, 8 C. B. N. S. 568 (E. C. L. R. vol. 98), viz., that the Judge will not be justified in leaving the case to the jury where the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defendant.

Patchett, in support of the rule.-This case falls precisely within the rule in Michael v. Alestree, 2 Lev. 172, 1 Ventr. 295. That was an action on the case " for that the defendants (the master and his servant), in Lincoln's Inn Fields, a place where people are always going to and fro about their business, brought a coach with two ungovernable horses, et eux improvide, incaute, et absque debita consideratione ineptitudinis loci, there drove them, to make them tractable and fit for a coach, and the horses, because of their ferocity, being not to be managed, ran upon the plaintiff, and hurt and grievously wounded him." It was moved in arrest of judgment, "that no sciens is here laid of the horses being unruly, nor any negligence alleged, but, e contrà, that the horses were ungovernable." But judgment was given for the plaintiff, "for, 'tis alleged that it was improvide et absque debita consideratione *ineptitudinis loci." The real question is, on whom lies the burthen of proof. The declaration states [*592 that the deceased was lawfully passing in and along a public highway, and that the defendant so carelessly, negligently, and improperly rode a vicious horse there, that, through that carelessness and negligence, the deceased lost his life. The evidence to support that was, that the deceased was walking on the foot-pavement in a populous thoroughfare, when he was knocked down and killed by a horse which the defendant was "trying," having only purchased him the day before at Tattersal's, where it is well known that all horses are sold without warranty. That, it is submitted, was ample primâ facie evidence of negligence. [WILLIAMS, J.-The defendant was carried against the deceased by a horse which all his apparently well-directed efforts were ineffectual to control.] What more could the plaintiff do than show that the deceased was in a place where he might reasonably conceive himself to be safe, and that the defendant rode where he had no right to be? [ERLE, C. J.-The fair result of the plaintiff's evidence was. that the defendant was riding along quietly, when, for reasons not given, the horse became restive.] If the defendant had been called, it might have come out on cross-examination that he incautiously used a whip or a spur. [ERLE, C. J.-The question before us, is, whether, on the evidence then before him, the Judge was right in point of law in nonsuiting the plaintiff.] Sir James Mansfield, in Christie v. Griggs, 2 Campb. 79, says: "I think the plaintiff has made a primâ facie case by proving his going on the coach, the accident, and the damage he has suffered. It now lies on the other side to show that the coach was as good a coach as could be made, and that the driver was as skilful a driver as could anywhere be found. What other evidence can the plaintiff give? The *passengers were probably all sailors, like himself: and, how do they know whether the coach was well [*593 built, or whether the coachman drove skilfully? In many other cases. of this sort, it must be equally impossible for the plaintiff to give the evidence required. But, when the breaking down or overturning of C. B. N. S., VOL. XI.-23

a coach is proved, negligence on the part of the owner is implied. He has always the means to rebut this presumption, if it is unfounded: and it is now incumbent on the defendant to make out that the damage in this case arose from what the law considers a mere accident." [WILLIAMS, J.-That case went upon the carrier's undertaking that he would provide for the safe conveyance of his passengers, as far as human care and foresight could go.] Still, the principle of the ruling is applicable here. In the case of a railway accident, one who sues the Company for an injury sustained by him from a collision or the train getting off the rails, makes out a sufficient primâ facie case when he has proved the collision or the departure from the rails and the amount of injury: Carpue v. The London and Brighton Railway Company, 5 Q. B. 747 (E. C. L. R. vol. 48), D. & M. 608, 3 Railw. Cas. 692. [WILLIAMS, J., referred to Perren v. The Monmouthshire Railway and Canal Company, 11 C. B. 855 (E. C. L. R. vol. 73).] In Skinner v. The London, Brighton, and South Coast Railway Company, 5 Exch. 787, a declaration against a railway Company stated that the plaintiff, at the request of the defendants, became a passenger in one of their trains, to be carried, &c., and that, through the carelessness, negligence, and improper conduct of the defendants, the train in which the plaintiff was such passenger struck against another train, whereby the plaintiff was injured. At the trial, it appeared that the accident was occasioned by the train in which the plaintiff was, running against a train standing at the station, it being then dark: and it was held, that the mere fact of the accident having occurred was primâ *591] facie evidence of negligence on the part of the defendants. Negligence in all these cases is purely for the jury: Crofts v. Waterhouse, 3 Bingh. 319 (E. C. L. R. vol. 11), 11 J. B. Moore 133 (E. C. L. R. vol. 22). The evidence given on the part of the plaintiff here was at all events enough to call upon the defendant to prove that he was riding a reasonably manageable horse. [ERLE, C. J.-The railway cases do not serve you. I do not assent to the doctrine that mere proof of the accident throws upon the defendants the burthen of showing the real cause of the injury. All the cases where the happening of an accident has been held to be primâ facie evidence of negligence, have been cases of contract. WILLIAMS, J.-The Lord Chief Justice in terms lays down the rule, in Cotton v. Wood, 8 C. B. N. S. 568 (E. C. L. R. vol. 98), in the way he has just expressed himself.] The question is, whether the learned Recorder was justified in saying that there was no evidence of negligence here,-whether there was not enough to call upon the defendant for an answer, as in the case of Gibbon v. Pepper, 2 Salk. 637, 1 Lord Raym. 38, 4 Mod. 404.

ERLE, C. J.-I am of opinion that this rule should be discharged. The action is brought for damage caused by the negligence of the defendant: and the question is whether we can see upon the notes of the learned Recorder any evidence of negligence on the part of the defend· ant which that learned Judge ought to have left to the jury. I am of opinion that the plaintiff in a case of this sort is not entitled to have his case left to the jury unless he gives some affirmative evidence that there has been negligence on the part of the defendant. The sort of negligence imputed here is, either that the defendant was unskilful in the management of the horse, or imprudent in taking a vicious ani

.

[*595

mal, or one *with whose propensities or temper he was not sufficiently acquainted, into a populous neighbourhood. The evidence is, that the defendant was seen riding the horse at a slow pace, that the horse seemed restless and the defendant was holding the reins tightly, omitting nothing he could do to avoid the accident; but that the horse swerved from the roadway on to the pavement, where the deceased was walking, and knocked him down and injured him fatally. I can see nothing in this evidence to show that the defendant was unskilful as a rider or in the management of a horse. There is nothing which satisfies my mind affirmatively that the defendant was not quite capable of riding so as to justify him in being with his horse at the place in question. It appears that the defendant had only bought the horse the day before, and was for the first time trying his new purchase, using his horse in the way he intended to use it. It is said that the defendant was not justified in riding in that place a horse whose temper he was unacquainted with. But I am of opinion that a man is not to be charged with want of caution because he buys a horse without having had any previous experience of him. There must be horses without number ridden every day in London of whom the riders know nothing. A variety of circumstances will cause a horse to become restive. The mere fact of restiveness is not even primâ facie evidence of negligence. Upon the whole, I see nothing which the learned Recorder could with propriety have left to the jury.

WILLIAMS, J.-I am entirely of the same opinion. Precisely the same question arose at the trial of this cause as would have presented itself if the defendant had stood indicted for manslaughter. It has been contended that there was evidence for the jury that *the

defendant was guilty of negligence in not using due care or [*596

having sufficient skill to govern a vicious horse. I am clearly of opinion, that, if this had been a trial for manslaughter, the evidence which was given here could not have been left to a jury. It is said that primâ facie the defendant was guilty of negligence because he was wrongfully on the foot-pavement. But the fact of his being on the foot-pavement is nothing unless he was there voluntarily and, to say the least, it is quite as consistent with the facts proved that he was there involuntarily as that he was there by his own mismanagement. I would refer to the principle alluded to by the Lord Chief Justice in Cotton v. Wood, 8 C. B. N. S. 568 (E. C. L. R. vol. 98), which it is most important to keep in mind in all these cases, viz., that, where the evidence given is equally consistent with the existence or non-existence of negligence, it is not competent to the Judge to leave the matter to the jury. It was further contended that there was evidence to warrant the jury in coming to the conclusion that the defendant was riding a horse which he knew not to be fit for the purpose. I am not sure that Mr. James is not right in saying that this declaration does not charge anything of that sort. But, at all events, there was no evidence of a scienter.

WILLES, J.-I am of the same opinion, though I must own that at the outset I was much inclined to entertain a contrary view. The discussion, however, which has taken place has satisfied me that I ought to concur with my Lord and my learned Brothers. The cir

cumstance which very much weighed with me, was, that here was a man riding on the foot-pavement, and therefore primâ facie in the wrong. But then it must be remembered that the witness who proved that fact proved that he was there against his will, that the horse *597] *showed symptoms of running away, and that the defendant was doing his best to hold him in, and in fact doing all he reasonably could to prevent the accident. He was there by the will of a horse which was running away with him and resisting his efforts to restrain him. The injury occurred from the vicious and unmanage able character of the horse. But, as has already been pointed out, the fact of the defendant's riding an unmanageable horse in a public street is not to fix him with responsibility unless it is shown that he knew the horse to be vicious and unmanageable: and that is negatived by the evidence here. It may be that a horse is unmanageable in consequence of want of care or skill on the part of the rider. Want of care is excluded by the evidence. Want of skill is matter of opinion: and it is not enough that the evidence is consistent with either view. It was very much urged, that, as the defendant had only bought the horse the day before, he was culpably negligent in trying him in such a place. But that would be imposing a restriction upon the rights of the owners of horses for which I find no warrant in the law. I cannot hold that the defendant is liable on that ground, when there was no reason, so far as the evidence goes, for supposing that the animal was a dangerous one. Upon these grounds, I am satisfied that I was wrong in thinking there was any evidence which could properly be left to the jury. It is perfectly demonstrable that there was not. There is yet another point in which I wish to make a remark, viz., whether the same evidence which is required in these cases would suffice to convict a man of manslaughter. I agree, with my Brother Williams that that would be so in this case. In 1 East's P. C. 263, 264, treating of homicide, it is laid down that "the greatest possible care is not to be expected, nor is it required: but, whoever seeks to *excuse himself for having unfortunately occasioned by any act *598] of his own the death of another, ought at least to show that he took that care to avoid it which persons in similar situations are most accustomed to do,"-rather indicating that this should be shown by evidence on the part of the person charged. The practice is otherwise. I agree that the question would be the same in this case. But there has been a good deal of discussion in modern cases as to whether or not juries on questions of this sort ought to be told to look at the evidence as if they were dealing with a criminal case. It is of course immaterial from which side the evidence comes which shows that the homicide is excusable. But, as at present advised, I cannot think that the jury in a civil action should be told that the question is the same as if the party was upon his trial for manslaughter. In a recent case in the Privy Council,-Cheyt Ram, app., Chowdhree Now but Ram, resp., 7 Moore's Indian Appeal Cases 207,-on a question involving the genuineness or forgery of an instrument sued upon, which the Courts in India had opportunity of personally inspecting, and held genuine, it was held to be necessary that the evidence impeaching the document be clear and strong to justify the appellate Court in reversing the decree appealed from. Guarding myself with