v. MAYOR, &c. OF SUNDER LAND. supplied by the defendants, erected and set up therein; and COWLEY which were respectively erected and set up by the defendants for the purpose, amongst other things, of their being used by persons to wash, wring and dry clothes therein, for hire and reward paid to the defendants in that behalf; yet the plaintiffs in fact say that, at the time of the committing of the grievances, &c., the said machinery, engines, boilers and wringing machine were so negligently, carelessly, insecurely and improperly constructed, erected and set up for the purpose aforesaid, and the defendants so negligently, carelessly and improperly conducted themselves in and about the premises, and in [and] about the management and supplying of the steam power aforesaid, that by reason of the premises and of the *improper construction and adaptation of such wringing machine as aforesaid, and of the improper application of such steam power as aforesaid, the said Mary, then being the wife of the plaintiff, and whilst she was lawfully using the same for the purpose aforesaid, and for hire and reward paid by her to the defendants in that behalf, and in the course of the lawful and proper use thereof, became and was caught and got entangled with the said wringing machine, and was greatly whirled and dragged about and received great bodily injury, &c. Pleas. First: Not guilty. Second: That the said machinery, engine and boilers, and wringing machine, were not so negligently, carelessly, insecurely or improperly constructed, erected or set up as alleged. Issues thereon, At the trial, before Wilde, B., at the last Durham Summer Assizes, it appeared that the defendants, the corporation of Sunderland, had erected public baths and washhouses in the High Street of that town, under the provisions of the 9 & 10 Vict. c. 74. On the 19th of January last the female plaintiff was washing there. She had paid fourpence for permission to wash a certain time. Having washed some clothes, she placed them in a wringing machine. This machine consisted of a cylinder about three feet in diameter and four feet high, into which the wet clothes were placed, and it was made to revolve by steam power at the rate of fifty revolutions in a minute. The machine was originally constructed to be worked by hand by means of an ordinary wynch-handle affixed to a spindle. This handle had been removed, but a small iron rod to which it had been attached was allowed to remain. The female plaintiff was in the act of stopping the machine, when the iron rod caught the sleeve of her gown, and she was dragged towards the machine and severely injured. There was no one attending upon her at the time. When it was proposed to work this *machine by [ *566 ] [ *567 ] COWLEY v. MAYOR, &C. LAND. steam power, one of the town council, who was a practical builder and a member of the baths and washhouses committee, OF SUNDER told the engineer of the corporation that it was dangerous to apply steam power to a wringing machine. There were other wringing machines in this washhouse, which were worked by hand; and in the other washhouses in Sunderland all such machines were so worked. [ *568 ] At the close of the plaintiff's case, it was submitted on behalf of the defendants that they were not liable. The learned Judge reserved the point, and evidence was adduced on the part of the defendants to prove that the machine was not dangerous, and that the female plaintiff was careless in her use of it. The learned Judge left it to the jury to say: first, whether the female plaintiff, in using the machine, was guilty of any negligence which contributed to the accident; secondly, whether the defendants were guilty of negligence in the construction of the machine, or in not having attendants to see to the use of it. The jury answered the first question in the negative, and the second in the affirmative, and found a verdict for the plaintiffs, with 50l. damages, leave being reserved to the defendants to move to enter the verdict for them. Manisty, in the present Term, obtained a rule nisi accordingly, on the ground that there was no evidence of any duty, or of the breach of any duty, or of any negligence by or on the part of the defendants; or why a new trial should not be had on the same ground; or why the judgment should not be arrested, on the ground that the declaration disclosed no ground of action against the defendants. Price and Davison showed cause, in last Michaelmas Term (Nov. 17): First, there was a breach of duty on the part of the defendants for which they are responsible. They *erected baths and washhouses under the provisions of the 9 & 10 Vict. c. 74, and, having the management and control of them, it was their duty, when they invited the public to use a machine worked by steam power, to take care that it was safe. A corporation is not exempt from any liability which attaches to an individual, if guilty of negligence; and it is clear that if this machine had been the property of an individual he would, under such circumstances, have been liable. (MARTIN, B.: If an individual said, there is a wringing machine, you may use it, would he be responsible if the machine was not safe?) The defendants knew that the machine was dangerous, and there fore ought not to have invited the public to use it: Gibbs v. The Trustees of the Liverpool Docks (1). (WILDE, B.: The declaration does not allege negligence.) Such an allegation, if traversed, would have raised an immaterial issue. In Blakemore v. The Bristol and Exeter Railway Company (2), which was the case of a gratuitous lender of a chattel which he knew was in an unsafe condition, it was laid down that "the duties of the borrower and lender are in some degree correlative. The lender must be taken to lend for the purpose of a beneficial use by the borrower; the borrower therefore is not responsible for reasonable wear and tear; but he is for negligence, for misuse, for gross want of skill in the use; above all, for anything which may be qualified as legal fraud. So, on the other hand, as the lender lends for beneficial use, he must be responsible for defects in the chattel with reference to the use for which he knows the loan is accepted, of which he is aware, and owing to which directly the borrower is injured." The defendants ought not to have applied steam power to a machine intended to be worked by hand; neither should they, knowing its dangerous condition, have left the machine unguarded. The case resembles that of a person who, having a gun which he knows is dangerous to *use, chooses to let it for hire. (MARTIN, B., referred to Cornman v. The Eastern Counties Railway Company (3).) In Green v. The London General Omnibus Company (4), Erle, J., in delivering the judgment of the COURT, said: "The whole course of the authorities, from the case of Yarborough v. The Bank of England (5) down to Whitfield v. The South Eastern Railway Company (6), which was in reality an action against the Electric Telegraph Company, shows that an action for a wrong will lie against a corporation, where the thing that is complained of is a thing done within the scope of their incorporation, and is one which would constitute an actionable wrong if committed by an individual." (BRAMWELL, B.: In Cornman v. The Eastern Counties Railway Company (3), the injury was caused by a weighing machine which had been in the same situation for five years, and there is no pretence for saying that such a machine is not a proper thing for a Railway Company to have on the platform of their station. Here it was proved that it was dangerous to apply steam (1) 3 H. & N. 164; see S. C. L. R. 1 H. L. 93. (2) 112 R. R. 880 (8 El. & Bl. 1035). (3) 118 R. R. 757 (4 H. & N. 781). (4) 121 R. R. 497 (7 C. B. N. S. 290). (6) 113 R. R. 568 (El. BL. & El. 115). COWLEY v. MAYOR, &C. [ *569] COWLEY ľ. MAYOR, &C. LAND. [570] power to a wringing machine, and that the machine was in the first instance intended to be worked by hand.) Manley v. The St. Helens Railway Company (1) is also an authority in favour of the plaintiff. (CHANNELL, B.: There the Company had a beneficial interest in the tolls, and were therefore liable, as any proprietor of private property would be.) In Gibbs v. The Trustees of the Liverpool Docks (2) the defendants received no profits, but merely performed a public duty, and yet they were held responsible for negligence. Here the defendants are in the position of an individual, because they have availed themselves of the provisions of the 9 & 10 Vict. c. 74, to erect baths and washhouses; and they make *a charge for the use of them. Secondly. It will be argued that the council, not the defendants, are liable. But the 27th section vests the property in the baths and washhouses in the corporation. By the 29th section, the council shall not be personally "liable to the payment of any sum of money as or by way of compensation or satisfaction for or in respect of anything done or suffered in due pursuance of that Act." The action, however, is properly brought against the corporation, the council being only their servant, and the corporation are entitled to reimburse themselves out of the rates for any sum which they may be required to pay: Ruck v. Williams (3). (WILDE, B.: By the 9 & 10 Vict. c. 74, the council are authorized to erect baths and washhouses, to make charges for the use of them, and to detain the clothes of persons refusing to pay the charges. The Act contains two schedules, the one relating to bye-laws, the other regulating the charges. Persons who choose to avail themselves of the provisions of this Act ought to take proper means of securing their machines, so that persons using them may not be injured, and if they neglect to do so, it may be that there is a liability arising from the Act.) There is an implied undertaking, on the part of the corporation, that the things which they provide for the use of the public may be used without danger. Suppose they constructed baths which were dangerous for boys, could they shelter themselves by saying the use of them was voluntary? (They also argued that the declaration was good after verdict, the jury having found negligence.) (1) 115 R. R. 842 (2 H. & N. 840). 1 H. L. 93. (3) 117 R. R. 697 (3 H. & N. 308). In Manisty (with whom was T. Jones), in support of the rule: First, there was no duty on the part of the defendants for the breach of which they are responsible. As regards this tort, there is a difference between the corporation *and town council. non-corporate towns the Act is to be carried out by Commissioners elected by the vestry; but in corporate towns the individuals who constitute the town council are vested with the same powers as those Commissioners. The Legislature has provided that no member of the council or Commissioner shall be personally liable: sect. 29. (WILDE, B.: The 32nd section makes the matter plain. It provides that whenever the council, or vestry, on the recommendation of the Commissioners, determine that the baths shall be sold, the corporation shall convey them.) That is only a statutory mode of conveyance. (WILDE, B.: The 20th section incorporates the Commissioners, but there is no enactment incorporating the council, and by the 27th section the property in the baths is vested in the corporation.) It is submitted that in a case of this kind the Commissioners would not be liable, and, if so, no action will lie against the council or corporation. It was never intended that the corporation should be responsible for the acts of the council. The Legislature has invested the council with certain powers for the erection and management of baths and washhouses, and there is no common law or statutory liability on the part of the corporation. Assuming that the corporation are in the position of individuals who are the owners of baths and washhouses, which the Legislature has authorized them to erect, since they have no beneficial interest in the funds derived therefrom they are not responsible: Metcalfe v. Hetherington (1). The only duty on the part of the corporation is to employ a competent engineer. Secondly. There was no evidence of negligence. The female plaintiff knew the construction of the machine and was aware of its danger. She voluntarily used it, and therefore cannot recover. Moreover it is consistent with the evidence that the injury was caused by her own negligence. (He also argued that the declaration was bad in arrest of judgment, inasmuch as it did not disclose on the face of it any duty on the part of the defendants.) Cur. adv. vult. The judgment of the COURT was now delivered by (1) 105 R. R. 513 (11 Ex. 257). |