CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, IN Easter Term, IN THE TWENTY-FIFTH YEAR OF THE REIGN OF VICTORIA. 1862. Millespie The Judges who usually sat in banco in this Term, were,— ERLE, C. J., WILLES, J., BYLES, J., and MEMORANDUM. IN the vacation preceding this Term, the following gentlemen were respectively appointed Her Majesty's Counsel learned in the Law:William Mathewson Hindmarch, Esq., of Gray's Inn, and of the Northern Circuit, George Boden, Esq., of the Inner Temple, and of the Midland Circuit, and Thomas Weatherley Phipson, Esq., of Lincoln's Inn, and of the Oxford Circuit. In the course of the Term, they were called upon to take their seats within the Bar. *ANNE WITHERLEY, Administratrix, &c., v. THE REGENT'S CANAL COMPANY. April 15.. [*2 No action will lie for the consequences of a negligent act, where the party complaining has by his own want of due care and caution been in any degree contributory to the misfortune. A swing-bridge over a canal crossing a public highway, when turned back for the passage of a barge along the canal, left a gap on the side of the road without any fence towards the water. A., being upon the bridge whilst it was in this state, and the spot being dark, incautiously stepped back and fell into the water and was drowned. In an action by his widow and administratrix against the canal company (under Lord Campbell's Act, 9 & 10 Vict. c. 93), the jury were told, that if they thought there had been negligence on the part of the company, and no want of proper care and caution on the part of the deceased, the plaintiff was entitled to a verdict; but that, if they thought that the deceased bad by his own negligence contributed to the accident, they must find for the defendants:---Held, a proper direction, and that, upon the facts, the jury were warranted in finding for the defendants, although they were of opinion that the bridge was not secured as it should have been. THIS was an action by the plaintiff, as administratrix of her late husband, against the Regent's Canal Company, under Lord Campbell's Act, 9 & 10 Vict. c. 93, for so negligently keeping a bridge over the canal on a public highway as to cause the deceased to fall into the water. The cause was tried before Wightman, J., at the last Assizes at Kingston, when the following facts appeared in evidence :-The deceased having occasion to pass over one of the Company's swingbridges crossing the canal at a place called Queen Street, Poplar, went on to the bridge, which was swung back to admit a vessel to pass through (and which it appeared the public were permitted to do), and, stepping back inadvertently, fell through a small gate leading to the water, which was closed when the bridge was closed, but was left unguarded when the bridge was swung, and dropped into the water and was drowned. The accident occurred in the month of October, at 8 o'clock in the evening; and it was proved that there was no light on that side of the way. The learned Judge, after observing to the jury that the deceased ought not to have gone upon the bridge whilst open, told them, that, if they thought there had been negligence on the part of the Company, and no want of proper care and caution on the part of the *deceased, the plaintiff was entitled to a verdict; but that, if *31 they thought that the deceased had by his own negligence contributed to the accident, they must find for the defendants. The jury intimated an opinion that the bridge was not secured as it ought to have been; but they found their verdict for the defendants, on the ground that the deceased had by his own negligence contributed to his death. Ribton now moved for a new trial, on the grounds of misdirection and that the verdict was against the evidence.-The direction of the learned Judge was hardly warranted by the more recent authorities. In Greenland v. Chaplin, 5 Exch. 243,† it was held that a person who is guilty of negligence, and thereby produces injury to another, cannot set up as a defence that part of the mischief would not have arisen if the person injured had not himself been guilty of some negligence. Pollock, C. B., in giving the judgment of the Court in that case, says: "I entirely concur with the rest of the Court, that a person who is guilty of negligence, and thereby produces injury to another, has no right to say, 'Part of that mischief would not have arisen if you yourself had not been guilty of some negligence.' I think that wliere the negligence of the party injured did not in any degree contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action: and certainly I am not aware, that, according to any decision which has ever occurred, the jury are to take the consequences and divide them in proportion according to the negligence of the one or the other party." In Barnes v. Ward, 9 C. B. 392 (E. C. L. R. vol. 67), and Hounsell v. Smyth, 7 C. B. N. S. 731 (E. C. L. R. vol. 97), the owners of land near to a public highway were held responsible for accidents arising from insufficient [*4 fencing, though the injuries complained of arose from the parties having incautiously deviated from the public way. [ERLE, C. J.To entitle the plaintiff to maintain this action, she must show that the accident arose from the negligence of the defendants or their servants.] The verdict is at all events against the weight of the evidence. The case of Manley v. The St. Helens Canal and Railway Company, 2 Hurlst. & N. 840,† is precisely in point. There, certain undertakers of a navigation being incorporated for the purpose of making a canal, and empowered by statute (28 G. 2, c. viii.) to take tolls to their own use and behoof, were authorized "to make such and so many bridges as and where they should think requisite and convenient, and to amend, heighten, or alter any bridges, and to turn or alter any highways in, through, upon, or near the rivers, cuts, or canals, as may in any ways hinder the navigation or passage thereon." The Company made a cut through a public highway near St. Helens, which was then a small village, and carried the highway over the cut so made by a swivel-bridge. By a subsequent Act (11 G. 4, c. 1., s. 1), to consolidate and amend the former Act, it was recited "that the navigation, cut, or canal, and other the works authorized to be made by the recited Act, have been long since made and completed;" and, by s. 48, the Company were empowered to maintain the canal, bridges, &c. By the 11 Ğ. 4, c. 1., s. 124, all persons were to have free liberty with boats to navigate the said canal for the purpose of conveying any goods, &c. By s. 141, penalties were imposed on persons leaving open draw-bridges, &c., after boats had passed. A boatman having opened the swivel-bridge to allow his boat to pass through, a person who was coming along the road (at 8 o'clock in the evening of the 22d of October) walked into the water and was drowned. It appeared, that, when the bridge was open, the end of the high- [*5 way abutting on the canal was wholly unfenced. Two lamps had formerly been kept burning, of which one had been removed, and the other was out of repair. The jury found that the deceased was drowned by reason of the neglect of reasonable precautions on the part of the canal Company, without any negligence on his own part. And, upon this finding, it was held that the defendants were liable. Martin, B., in giving judgment, there says: "It is perfectly clear what is the common-law obligation of persons who make canals of this kind. They may make a bridge, but common sense points out it inust be a proper bridge, and fit for travelling over: and I agree with the Lord Chief Baron, that, if we were now discussing what kind of bridge it ought to be, I should say a bridge suitable to the present state of society. I have no doubt, that, when this bridge was built, the place near it was a small village: now it has thousands of inhabitants; and to hold that the same bridge which would suffice formerly will do so now, when the place has become a great manufacturing town, would be utterly contrary to reason and good sense. Courts of law must look at these matters with reason and common sense; and these tell us that undertakings of this sort must be conducted so as to meet the exigencies of society. Is it fitting, then, that, in the town of St. Helens, there should be a bridge which, when opened, as it may be at any hour of the day or night, shall leave a gulf in the highway entirely without protection? That is a question for the jury; and all persons would concur that the only verdict they could have found was that which they have found. Had they found the contrary, I should have dissented from their verdict, and thought it a fit one to set aside." *ERLE, C. J.-I am of opinion that there should be no rule in *6] this case. Enough has been stated to satisfy us that the learned Judge properly guided the jury to what we conceive to be the proper principle upon which their decision was to be based, and that their verdict had his approval. It appeared that the public had been allowed to go upon the bridge when turned for the passage of vessels along the canal: but it was the obvious duty of those going there to take ordinary care. I can see no negligence on the part of the Company in allowing people to stand on the bridge: and certainly no injury would have accrued therefrom to the deceased, if he had not, forgetting the position he was in, stepped back, and so fallen into the water. The doing so was want of ordinary care on the part of the deceased, for which the Company are not to be held responsible. Assuming that the Company were in some degree censurable, the negligence of the deceased was the cause, without which the accident would never have happened. WILLIAMS, J.-I am of the same opinion. The jury found that the deceased had by his own negligence contributed to the accident. That being so, the Company are not liable because they permitted people to go on to the bridge. Being there, the deceased was bound to use due care to guard himself from danger. I see no reason to find fault with the way in which the case was left to the jury. BYLES, J.-I am of the same opinion. The case now before us is very like those which qualified the decision of this Court in Barnes v. Ward, 9 C. B. 392 (E. C. L. R. vol. 67). The Court in that case held that it was the duty of the owner of property adjoining a public highway so to fence it as to prevent danger to persons lawfully passing *7] along the highway. On the other hand, the owner of land is under no liability to fence an excavation at a considerable distance from a public road: Hounsell v. Smyth, 7 C. B. N. S. 731 (E. C. L. R. vol. 97). When the bridge in question was swung back for the passage of a barge along the canal, it ceased to be a public highway and a person going upon it was bound to use due diligence to avoid danger. I also think the verdict is right, upon the principle laid down by the Court of Queen's Bench in Dowell v. The General Steam Navigation Company, 5 Ellis & B. 195 (E. C. L. R. vol. 85). In the course of the argument there, it was urged by counsel that "the mere fact of negligence on the part of a plaintiff does not deprive him of the right to recover;" whereupon Lord Campbell interposed,-"Does it not, if it be the proxima causa or causa causans of the accident?" And, in giving judgment, his Lordship says: "According to the rule which prevails in the Court of Admiralty in a case of collision, if both vessels are in fault, the loss is equally divided: but, in a Court of common law, the plaintiff has no remedy if his negligence in any degree contributed to the accident." There was a subsequent case in this Court |