BAYLEY, J. The gun ought to have been so left as to be out of all reach of doing harm. The mere removal of the priming left the chance of some grains of powder escaping through the touchhole.

Per curiam.

Rule refused.

HAMMACK, Administratrix, v. WHITE.

(11 Com. B. N. S. 588. Common Pleas, England, Hilary Term, 1862.)

Trying Horse in a Thoroughfare. The defendant bought a horse at Tattersal's, and the next day took him out to "try" him in Finsbury Circus, a much-frequented thoroughfare. From some unexplained cause the horse became restive, and, notwithstanding the defendant's well-directed efforts to control him, ran upon the pavement and killed a man. Held, that these facts disclosed no evidence of negli gence which the judge was warranted in submitting to the jury.

THIS was an action upon Lord Campbell's Act, 9 & 10 Vict. c. 93, by Mrs. Hammack, the widow and administratrix of William Hammack, to recover damages against the defendant for having, by his negligence, caused the death of the intestate.

The declaration alleged that the deceased, in his lifetime, was lawfully passing in and along a certain common public highway, and that the defendant so carelessly, negligently, and improperly rode a certain vicious horse in the said highway, that, by and through the carelessness, negligence, and improper conduct of the defendant in that behalf, the said horse ran with great force and violence upon and against the deceased, and cast and threw him down, and so injured him that the deceased, within twelve months next before the action, died.

The defendant pleaded not guilty; whereupon issue was joined. The cause was tried before the recorder of London in the Lord Mayor's Court, when the following facts appeared in evidence:

On the 7th of May, 1861, the deceased was walking on the footpavement in Finsbury Circus, when he was knocked down and kicked by a horse on which the defendant was riding. He was picked up and carried to St. Bartholomew's Hospital, where he died on the 16th, in consequence of the injuries he had sustained.

It appeared that the defendant had bought the horse the day before at Tattersal's, and had taken it out to "try" it, when the horse became unmanageable and swerved from the roadway on to the pavement, notwithstanding the defendant's efforts to restrain him. It did not appear that the defendant had omitted to do any thing he could have done to prevent the accident; but it was insisted on the part of the plaintiff that the mere fact of the defendant's having ridden, in such a place, a horse with whose temper he was wholly unacquainted, was evidence of negligence. Some reliance was also placed upon the fact of there being certain police notices affixed at various parts of the circus, cautioning all persons not to exercise horses there.

The learned recorder being of opinion that there was nothing in the evidence to warrant a jury in finding that the defendant had been guilty of negligence, directed a nonsuit.

Patchett, in Michaelmas Term last, obtained a rule nisi for a new trial, on the ground of misdirection. He referred to Weaver v. Ward, 2 Rol. Abr. 548, Hob. 134, Moor, 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 ed. 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 Ld. Raym. 38, 4 Mod. 404, 2 Salk. 637, it seems to have 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 Com. B. N. S. 572.] 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 blamable. In Michael v. Alestree, 2 Lev. 172, 1 Ventr.

295, the defendant was guilty of negligence. So also in Wakeman v. Robinson, 1 Bing. 213, 8 J. B. Moore, 63, where the defendant pulled the wrong rein. Templeman, app., Haydon, resp., 12 Com. B. 507, 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 in respect of either would amount to negligent driving. May v. Burdett, 9 Q. B. 101, 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 Camp. 79, where the action was founded on the contract of a stage-coach proprietor safely to carry his passengers. It may be urged that the defendant was not lawfully riding under the circumstances in Finsbury Circus; and the Metropolitan Police Act, 2 & 3 Vict. c. 47, § 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 Com. B. N. s. 568, 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 cux 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 scienter is here laid of the horses being unruly, nor any negligence alleged, but, e contra, 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 burden of proof. The declaration states 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 prima 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 Camp. 79, says: "I think the plaintiff has made a prima 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 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 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 on the train. getting off the rails, makes out a sufficient prima 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, D. & M. 608, 3 Railw. Cas. 692. [WILLIAMS, J., referred to Perren v. The Monmouthshire Railway and Canal Company, 11 C. B. 855.] 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 prima 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, 11 J. B. Moore, 133. 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. Railway cases do not serve you. I do not assent to the doctrine that