the law imposes certain terms as appertaining to these contracts. (3) And, lastly, where a statute directs a person to perform a duty, and he omits to perform that duty with care, he is guilty of negligence.

The above rules, as stated by Mr. Horace Smith, will be found to be the foundation underlying the whole law relating to negligence. The late Master of the Rolls (Lord Esher) laid down the following definition :-Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which the plaintiff, without contributory negligence on his part, has suffered injury (g). The burden of proof of the negligence, which, it may be alleged, is the cause of the injury complained of, is in all cases upon the plaintiff; and nothing can be inferred from the mere fact that the plaintiff has suffered injury unless he can show positively a want of skill or care or an act of negligence (h). It is not enough to show a state of things which is equally consistent with negligence or the absence of negligence (i). On the other hand, it has been distinctly laid down by the House of Lords (k) that there is no onus upon the plaintiff to show that he himself was using due care.

But where a thing is under the control or management of a 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 or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care (1).

Having ascertained in a general way, what constitutes negligence in law, it is necessary to ascertain how the principles are applied in practice.

The most usual tribunal before which any case involving a question of negligence will come consists both of a judge and jury. In such a case the question whether there is any evidence to support the charge of negligence is for the judge; the question of whether the facts, on the evidence given, do

(g) Heaven v. Pender, 11 Q. B. D. p. 507; 52 L. J. Q. B. 702. Cf. Caledonian Rail. Co. v. Mulholland or Warwick, H. L. (S. C.) (1898) App. Cas.

216.

(h) Hammack v. White, 11 C. B. (N. S.) 588; 31 L. J. C. P. 129; Wakelin

v. L. & S. W. Railway, 12 App. Cas. 41; 56 L. J. Q. B. 229.

(i) Manzoni v. Douglas, 6 Q. B. D. 145; 50 L. J. Q. B. 289.

(k) Wakelin v. L. & S. W. Railway, supra; Dublin, &c. Rail. Co. v. Slattery,

3 App. Cas. 1169.

(1) Scott v. London Dock Co., 3 H. & C. 596; 34 L. J. Exch. 220.

or do not amount to negligence is one for the jury, and is one of fact, of which the jury are the sole judges. Upon the judge is cast the duty of deciding the law; upon the jury is cast the duty of deciding the facts. Where, however, the judge is sitting alone, he decides both law and facts. The above principles have been stated by the House of Lords by Lord Cairns (m) in the following language:-"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 a 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." In the same case Lord Blackburn said:-"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 further 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 further inference may legitimately be drawn."

Probably the most difficult class of case, though far from uncommon, is to be found where accidents have resulted at railway crossings. These are, to some extent, parallel with any cases in which a passenger crossing a highway may, by some mischance, be knocked down or injured by a motor car, hackney carriage, or other vehicle.

(m) Metropolitan Rail. Co. v. Jackson, 3 App. Cas. 193; 47 L. J. C. P. 303.

In such a case the question of contributory negligence may, and probably does, arise; and although at present the subject to be discussed is negligence, yet it is impossible to entirely separate the question of contributory negligence. So far as foot passengers are concerned, the law is that such a person, though infirm, has a right to walk in the carriage way, which exists equally for foot passengers and carriages, and he is entitled to the exercise of reasonable care on the part of drivers of vehicles upon any highway (n). But at the same time such a person is bound to take reasonable care to avoid a vehicle, in the same way as the driver of the vehicle is bound to take reasonable care to avoid a foot passenger (o).

To a great extent the law, as laid down in "level crossing" cases, is applicable to such cases as those in which a foot passenger is injured by a vehicle upon a high road; and it is important to see what are the rules as to negligence and contributory negligence in these "level crossing cases.

Lord Halsbury, in a case of this class, said (q): "It is incumbent upon the plaintiff to establish by proof that her husband's death had been caused by some negligence of the defendants, some negligent act, or some negligent omission, to which the injury complained of, in this case the death of the husband, is attributable. That is the fact to be proved. If the fact is not proved the plaintiff fails, and if, in the absence of direct proof, the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition, Ei qui affirmat non ei qui negat incumbit probatio. If the simple proposition with which I started is accurate, it is manifest that the plaintiff, who gives evidence of a state of facts which is equally consistent with the wrong of which she complains having been caused by-in this sense that it could not have occurred without-her husband's own negligence as by the negligence of the defendants, does not prove that it was caused by the defendants' negligence."

Lord Watson in the same case says: "Mere allegation or proof that the company were guilty of negligence is altogether

(n) Boss v. Litton, 5 C. & P. 407.

(0) Cotton v. Wood, 8 C. B. (N. S.) 568; 29 L. J. C. P. 333. See also Chaplin v. Hawes, 3 C. & P. 554; Williams v. Richards, 3 C. & K. 81.

(q) Wakelin v. L. & S. W. Railway, 12 App. Cas. 41; 56 L. J. Q. B. 229. As to street crossings, see Boss v. Litton, 5 C. & P. 407; Hawkins v. Cooper, 8 C. & P. 473; Cotton v. Wood, 8 C. B. (N. S.) 568; 29 L. J. C. P. 333; Chaplin v. Hawes, 3 C. & P. 554.

irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have caused injury to somebody, but had no connection 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."

Lord

In an earlier case than the above it was held that, where there is contradictory evidence as to the facts, it is for the jury and not for the judge to decide upon them; in that case, as Lord Cairns pointed out, it was not a question of a new trial on the ground of the verdict being against the weight of evidence, but of whether the judge should have taken the case out of the hands of the jury in the first instance (r). Hatherley in the same case expressed approval of the ruling of Mr. Justice Barry, in the Court below, to the following effect: “When once a plaintiff has adduced such evidence as, if uncontradicted, would justify and sustain a verdict, no amount of contradictory evidence will justify the withdrawal of the case from the jury." In the result, the defendants' appeal was dismissed by a majority of the House of Lords, with an intimation that, at the same time, they were of opinion that the verdict of the jury in favour of the plaintiff was a wrong one.

The border-line between the cases, cited above, upon the questions to be decided respectively by judge or jury, and cases involving contributory negligence is very narrow indeed. In fact, in most, if not in all, of the above cases the question of contributory negligence was discussed, especially in Slattery's Case, where the question introduced considerable complication.

An interesting case, under the head of "level crossings," is that of Smith v. South Eastern Railway Co. (s). In that case the plaintiff's husband was run over and killed under the following circumstances. The defendants' line crossed a highway at a point where the defendants kept a gatekeeper's lodge; it was the duty of the gatekeeper to open and shut the gates as required, and to give warning, either by flag or light, to the public when the line was clear; if the gates were closed to the public, as when a train was coming, they exhibited a red light as a warning to the public. The deceased had occasion to go to the lodge to make some inquiries, and upon

Dublin, Wicklow and Wexford Rail. Co. v. Slattery, 3 App. Cas. 1155, (1896) 1 Q. B. 178; 65 L. J. Q. B. 219.

leaving the gatekeeper, although the latter was aware of the approach of a train, he gave no intimation or warning to that effect. It was night, but it was proved that the lights of an approaching train could be seen in each direction for some considerable distance. There was evidence from which it appeared that the deceased, on leaving the lodge, attempted to cross the line, but while so doing was caught by the train and killed, his body being found on the rails. There was also evidence that the whistle of the engine was sounded before reaching the crossing (t). The jury having found a verdict for the plaintiff, the defendants appealed. Lord Esher, in his judgment, said (u): "Assuming that all the legal propositions contended for by the defendants were truewhich I must not be taken to admit-in my opinion it is clear that, upon the facts proved in evidence in this case, the judge could not have withdrawn the case from the jury. It seems to me that the main stress of the argument for the defendants was with regard, not so much to the question whether there was evidence of negligence on the part of the defendants, as to the question whether there was contributory negligence on the part of the deceased. On whomsoever the burden of proof may lie, it cannot be doubted that, although the defendant has been guilty of negligence, if the person to whom the accident has happened was also guilty of contributory negligence, no action can be maintained (x). That proposition may be expressed in various ways. It may be said that it is not made out that the defendants' negligence was the sole cause of the accident, or that the negligence of the defendants was not the cause of the accident, because it was caused by the joint negligence of the defendants and the person to whom the accident happened. The question in this case seems to reduce itself to this: Could the judge have properly directed the jury, as a matter of law, that negligence on the part of the deceased was proved? It is an admitted proposition of law that, if there is no evidence of some material fact which forms an essential part of the plaintiff's

(t) Cf. Local Government Board Regulations, 1904, Art. II. (7), and sects. 2 and 3 of the Act (1896), as to lights and whistles.

(u) (1896) 1 Q. B. 182.

(x) This seems to be reconcileable with the view of Lord Blackburn in Slattery's Case, 3 App. Cas. at p. 1207, who said:-"The usual way of directing a jury is to say that if the plaintiff could by the exercise of such care and skill as he was bound to exercise, have avoided the consequence of the defendant's negligence, he cannot recover": see also Tuff v. Warman, 2 C. B. (N. S.) 740; 5 C. B. (N. S.) 573; Radley v. L. & N. W. Rail. Co., 1 App. Cas. 754; 46 L. J. Exch. 573.