Ii.—: Evidence of Negligence.

Negligence a question of mixed fact and law. Due care and caution, as we have seen, is the diligence of a reasonable man, and includes reasonable competence in cases where special competence is needful to ensure safety. Whether due care and caution have been used in a given case is, by the nature of things, a question of fact. But it is not a pure question of fact in the sense of being open as a matter of course and without limit. Not every one who suffers harm which he thinks can be set down to his neighbour’s default is thereby entitled to the chance of a jury giving him damages. The field of inquiry has limits defined, or capable of definition, by legal principle and judicial discussion. Before the Court or the jury can proceed to pass upon the facts alleged by the plaintiff, the Court must be satisfied that those facts, if proved, are in law capable of supporting the inference that the defendant has failed in what the law requires at his hands. In the current forensic phrase, there must be evidence of negligence. The peculiar relation of the judge to the jury in our common law system has given occasion for frequent and minute discussion on the propriety of leaving or not leaving for the decision of the jury the facts alleged by a plaintiff as proof of negligence. Such discussions are not carried on in the manner best fitted to promote the clear statement of principles; it is difficult to sum up their results, and not always easy to reconcile them.

The tendency of modern rulings of Courts of Appeal has been, if not to enlarge the province of the jury, to arrest the process of curtailing it. Some distinct boundaries, however, are established.

Burden of proof. Where there is no contract between the parties, the burden of proof is on him who complains of negligence. He must not only show that he suffered harm in such a manner that it might be caused by the defendant’s negligence; he must show that it was so caused, and to do this he must prove facts inconsistent with due diligence on the part of the defendant. “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”.

Nothing can be inferred, for example, from the bare fact that a foot-passenger is knocked down by a carriage in a place where they have an equal right to be, or by a train at a level crossing. Those who pass and repass in frequented roads are bound to use due care, be it on foot or on horseback, or with carriages: and before one can complain of another, he must show wherein care was wanting. “When the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale”. It cannot be assumed, in the absence of all explanation, that a train ran over a man more than the man ran against the train. If the carriage was being driven furiously, or on the wrong side of the road, that is another matter. But the addition of an ambiguous circumstance will not do.

Thus in Cotton v. Wood the plaintiff’s wife, having safely crossed in front of an omnibus, was startled by some other carriage, and ran back; the driver had seen her pass, and then turned round to speak to the conductor, so that he did not see her return in time to pull up and avoid mischief. The omnibus was on its right side and going at a moderate pace. Here there was no evidence of negligence on the part of the defendant, the owner of the omnibus. His servants, on the plaintiff’s own showing, had not done anything inconsistent with due care. There was no proof that the driver turned round to speak to the conductor otherwise than for a lawful or necessary purpose, or had any reason to apprehend that somebody would run under the horses’ feet at that particular moment. Again if a horse being ridden or driven 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”.

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, 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. 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 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”.

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.

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, 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 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 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.

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.

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 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, contract, or otherwise; then the judgment whether the plaintiff has suffered by the defendant’s negligence is a judgment of fact, and on a trial by jury must be left as such in the hands of the jury. The question of negligence is one of law for the Court only where the facts are such that all reasonable men must draw the same conclusion from them. It is true that the rules as to remoteness of damage set some bounds to the connexion of the defendant’s negligence with the plaintiff’s loss. But even in this respect considerable latitude has been allowed. Railway accidents have for the last forty years or more been the most frequent occasions of defining, or attempting to define, the frontier between the province of the jury and that of the Court.

Recent railway cases on level crossings and “invitation to alight.” Two considerable and well marked groups of cases stand out from the rest. One set may be broadly described as level crossing cases, and culminated in North Eastern Railway Company v. Wanless, decided by the House of Lords in 1874; the other may still more roughly (but in a manner which readers familiar with the reports will at once understand) be called “invitation to alight” cases. These are now governed by Bridges v. North London Railway Company, another decision of the House of Lords which followed closely on Wanless’s case. In neither of these cases did the House of Lords intend to lay down any new rule, nor any exceptional rule as regards railway companies: yet it was found needful a few years later to restate the general principle which had been supposed to be impugned. This was done in Metropolitan Railway Company v. Jackson.

Explanation in Metr. R. Co. v. Jackson. “The judge has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever”.

“On a trial by jury it is, I conceive, undoubted that the facts are for the jury, and the law for the judge. It is not, however, in many cases practicable completely to sever the law from the facts.

“But I think it has always been considered a question of law to be determined by the judge, subject, of course, to review, whether there is evidence which, if it is believed, and the counter evidence, if any, not believed, would establish the facts in controversy. It is for the jury to say whether, and how far, the evidence is to be believed. And if the facts as to which evidence is given are such that from them a farther inference of fact may legitimately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the judge to determine, subject to review, as a matter of law, whether from those facts that farther inference may legitimately be drawn”.

The case itself was decided on the ground that the hurt suffered by the plaintiff was not the proximate consequence of any proved negligence of the defendants; not that there was no proof of the defendants having been negligent at all, for there was evidence which, if believed, showed mismanagement, and would have been quite enough to fix on the defendant company liability to make good any damage distinctly attributable to such mismanagement as its “natural and probable” consequence. As between the plaintiff and the defendant, however, evidence of negligence which cannot be reasonably deemed the cause of his injury is plainly the same thing as a total want of evidence. Any one can see that a man whose complaint is that his thumb was crushed in the door of a railway carriage would waste his trouble in proving (for example) that the train had not a head-light. The House of Lords determined, after no small difference of learned opinions below, that it availed him nothing to prove overcrowding and scrambling for seats. The irrelevance is more obvious in the one case than in the other, but it is only a matter of degree.

The “level crossing” type of cases. In the “level crossing” group of cases we have some one crossing a railway at a place made and provided by the company for that purpose, and where the company is under the statutory duty of observing certain precautions. The party assumes that the line is clear; his assumption is erroneous, and he is run down by a passing train. Here the company has not entered into any contract with him; and he must prove either that the company did something which would lead a reasonable man to assume that the line was clear for crossing, or that there was something in their arrangements which made it impracticable or unreasonably difficult to ascertain whether the line was clear or not. Proof of negligence in the air, so to speak, will not do. “Mere allegation or proof that the company were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connexion whatever with the injury for which redress is sought, and therefore the plaintiff must allege and prove, not merely that they were negligent, but that their negligence caused or materially contributed to the injury”. What may reasonably be held to amount to such proof cannot be laid down in general terms. “You must look at each case, and all the facts of the case, before you make up your mind what the railway company ought to do”. But unless the plaintiff’s own evidence shows that the accident was due to his own want of ordinary care (as where in broad daylight he did not look out at all, the tendency of modern authority is to leave the matter very much at large for the jury. In Dublin, Wicklow and Wexford Railway Co. v. Slattery, the only point of negligence made against the railway company was that the train which ran over and killed the plaintiff’s husband did not whistle before running through the station where he was crossing the line. It was night at the time, but not a thick night. Ten witnesses distinctly and positively testified that the engine did whistle. Three swore that they did not hear it. A jury having found for the plaintiff, it was held by the majority of the House of Lords that the Court could not enter a verdict for the defendants, although they did not conceal their opinion that the actual verdict was a perverse one.

The “invitation to alight” group. In the other group, which we have called “invitation to alight” cases, the nature of the facts is, if anything, less favourable to the defendant. A train stopping at a station overshoots the platform so that the front carriages stop at a place more or less inconvenient, or it may be dangerous, for persons of ordinary bodily ability to alight. A passenger bound for that station, or otherwise minded to alight, is unaware (as by reason of darkness, or the like, he well may be) of the inconvenience of the place, or else is aware of it, but takes the attendant risk rather than be carried beyond his destination. In either case he gets out as best he can, and, whether through false security, or in spite of such caution as he can use, has a fall or is otherwise hurt. Here the passenger is entitled by his contract with the company to reasonable accommodation, and they ought to give him facilities for alighting in a reasonably convenient manner. Overshooting the platform is not of itself negligence, for that can be set right by backing the train. It is a question of fact whether under the particular circumstances the company’s servants were reasonably diligent for the accommodation of the passengers, and whether the passenger, if he alighted knowing the nature of the place, did so under a reasonable apprehension that he must alight there or not at all.

Complications with contributory negligence, &c. All these cases are apt to be complicated with issues of contributory negligence and other similar though not identical questions. We shall advert to these presently. It will be convenient now to take a case outside these particular types, and free from their complications, in which the difficulty of deciding what is “evidence of negligence” is illustrated. Such an one is Smith v. London and South Western Railway Company.Other illustrations of “evidence of negligence”: Smith v. L. & S. W. R. Co. The facts are, in this country and climate, of an exceptional kind: but the case is interesting because, though distinctly within the line at which the freedom of the jury ceases, that line is shown by the tone and language of the judgments in both the Common Pleas and the Exchequer Chamber to be nearly approached. The action was in respect of property burnt by fire, communicated from sparks which had escaped from the defendant company’s locomotives. The material elements of fact were the following.

Hot dry weather had prevailed for some time, and at the time of the accident a strong S.E. wind was blowing.

About a fortnight earlier grass had been cut by the defendants’ servants on the banks adjoining the line, and the boundary hedge trimmed, and the cuttings and trimmings had, on the morning of the fire, been raked into heaps, and lay along the bank inside the hedge. These cuttings and trimmings were, by reason of the state of the weather, very dry and inflammable.

Next the hedge there was a stubble field; beyond that a road; on the other side of the road a cottage belonging to the plaintiff, 200 yards in all distant from the railway.

Two trains passed, and immediately or shortly afterwards the strip of grass between the railroad and the hedge was seen to be on fire. Notwithstanding all efforts made to subdue it, the fire burnt through the hedge, spread over the stubble field, crossed the road, and consumed the plaintiff’s cottage.

There was no evidence that the railway engines were improperly constructed or worked with reference to the escape of sparks, and no direct evidence that the fire came from one of them.

The jury found for the plaintiff; and it was held (though with some difficulty) that they were warranted in so finding on the ground that the defendants were negligent, having regard to the prevailing weather, in leaving the dry trimmings in such a place and for so long a time. The risk, though unusual, was apparent, and the company was bound to be careful in proportion. “The more likely the hedge was to take fire, the more incumbent it was upon the company to take care that no inflammable material remained near to it”. Thus there was evidence enough (though it seems only just enough) to be left for the jury to decide upon. Special danger was apparent, and it would have been easy to use appropriate caution. On the other hand the happening of an accident in extraordinary circumstances, from a cause not apparent, and in a manner that could not have been prevented by any ordinary measures of precaution, is not of itself any evidence of negligence. And a staircase which has been used by many thousand persons without accident cannot be pronounced dangerous and defective merely because the plaintiff has slipped on it, and somebody can be found to suggest improvements.

No precise general rule can be given. Illustrations might be largely multiplied, and may be found in abundance in Mr. Horace Smith’s, Mr. Campbell’s, or Mr. Beven’s monograph, or by means of the citations and discussions in the leading cases themselves. Enough has been said to show that by the nature of the problem no general formula can be laid down except in some such purposely vague terms as were used in Scott v. London Dock Co..

Due care varies as apparent risk: application of this to accidents through personal infirmity. We have said that the amount of caution required of a citizen in his conduct is proportioned to the amount of apparent danger. In estimating the probability of danger to others, we are entitled to assume, in the absence of anything to show the contrary, that they have the full use of common faculties, and are capable of exercising ordinary caution. If a workman throws down a heavy object from a roof or scaffolding “in a country village, where few passengers are,” he is free from criminal liability at all events, provided “he calls out to all people to have a care”. Now some passer-by may be deaf, and may suffer by not hearing the warning. That will be his misfortune, and may be unaccompanied by any imprudence on his part; but it cannot be set down to the fault of the workman. If the workman had no particular reason to suppose that the next passer-by would be deaf, he was bound only to such caution as suffices for those who have ears to hear. The same rule must hold if a deaf man is run over for want of hearing a shout or a whistle, or a blind man for want of seeing a light, or if a colour-blind man, being unable to make out a red danger flag, gets in the line of fire of rifle or artillery practice; or if in any of these circumstances a child of tender years, or an idiot, suffers through mere ignorance of the meaning which the warning sight or sound conveys to a grown man with his wits about him. And this is not because there is any fault in the person harmed, for there may well be no fault at all. Whatever we think, or a jury might think, of a blind man walking alone, it can hardly be deemed inconsistent with common prudence for a deaf man to do so; and it is known that colour-blind people, and those with whom they live, often remain ignorant of their failing until it is disclosed by exact observation or by some accident. It is not that the law censures a deaf man for not hearing, or a colour-blind one for not perceiving a red flag. The normal measure of the caution required from a lawful man must be fixed with regard to other men’s normal powers of taking care of themselves, and abnormal infirmity can make a difference only when it is shown that in the particular case it was apparent.

Distinction where the person acting has notice of special danger to an infirm or helpless person. On the other hand it seems clear that greater care is required of us when it does appear that we are dealing with persons of less than ordinary faculty. Thus if a man driving sees that a blind man, an aged man, or a cripple is crossing the road ahead, he must govern his course and speed accordingly. He will not discharge himself, in the event of a mishap, merely by showing that a young and active man with good sight would have come to no harm. In like manner if one sees a child, or other person manifestly incapable of normal discretion, exposed to risk from one’s action, it seems that proportionate care is required; and it further seems on principle immaterial that the child would not be there but for the carelessness of some parent or guardian or his servant. These propositions are not supported by any distinct authority in our law that I am aware of. But they seem to follow from admitted principles, and to throw some light on questions which arise under the head of contributory negligence.