1878. CLARK V. CHAMBERS. Cockburn, C. J. or private way may anticipate the removal of the obstruction, by some one entitled to use the way, as a thing likely to happen; and if this should be done, the probability is that the obstruction so removed will, instead of being carried away altogether, be placed somewhere near; thus, if the obstruction be to the carriage-way, it will very likely be placed, as was the case here, on the footpath. If the obstruction be a dangerous one, wheresoever placed, it may, as was the case here, become a source of damage, from which, should injury to an innocent party occur, the original author of the mischief should be held responsible. Moreover, we are of opinion that, if a person places a dangerous obstruction in a highway, or in a private road, over which persons have a right of way, he is bound to take all necessary precaution to protect persons exercising their right of way, and that if he neglects to do so he is liable for the consequences. It is unnecessary to consider how the matter would have stood had the plaintiff been a trespasser. The case of Mangan v. Atterton was cited before us as a strong authority in favour of the defendant. The defendant had there exposed in a public market-place a machine for crushing oilcake without its being thrown out of gear, or the handle being fastened, or any person having the care of it. The plaintiff, a boy of four years of age, returning from school with his brother, a boy of seven, and some other boys, stopped at the machine. One of the boys began to turn the handle; the plaintiff, at the suggestion of his brother, placed his hand on the cogs of the wheels, and the machine being set in motion, three of his fingers were crushed. It was held by the Court of Exchequer that the defendant was not liable, first, because there was no negligence on the part of the defendant, or, if there was negligence, it was too remote; and secondly, because the injury was caused by the act of the boy who turned the handle, and of the plaintiff himself, who was a trespasser. With the latter ground of the decision we have in the present case nothing to do; otherwise we should have to consider whether it should prevail against the cases cited, with which it is obviously in conflict. If the decision as to negligence is in conflict with our judgement in this case, we can only say we do not acquiesce in it. It appears to us that a man who leaves in a public place, along which persons, and amongst them children, have to pass, a dangerous machine 1 1 4 H. & C. 388; L. R. 1 Ex. 239. which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character, and not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful act or negligence of the defendant has given occasion. But be this as it may, the case cannot govern the present. For the decision proceeded expressly on the ground that there had been no default in the defendant; here it cannot be disputed that the act of the defendant was unlawful. On the whole, we are of opinion, both on principle and authority, that the plaintiff is entitled to our judgement. Judgement for the plaintiff. 1878. CLARK v. CHAMBERS. Cockburn, C. J. Nn 1877. ATKINSON V. NEWCASTLE AND GATESHEAD WORKS COMPANY. BREACH OF STATUTORY DUTY. 1877. ATKINSON v. NEWCASTLE and Gateshead WaterWORKS COMPANY, L. R. 2 Ex. D. 441 (C. A.). Where the breach of a public statutory duty has caused particular damage to an individual, and the statute in question provides a special remedy for its breach, it is a question of construction in each case, to be decided upon the purview of the whole Act, whether the intention of the legislature was to take away the common law right of action of the individual or not. DECLARATION: That by 26 Vict. cxxxiv (incorporating the Waterworks Clauses Act, 1847, 10 Vict. c. 17), the defendants were incorporated with certain powers of taking land and supplying and maintaining waterworks; that the plaintiff was the owner and WATER- Occupier of a dwelling-house, timber-yard, and saw-mills situate within the limits prescribed by the defendants' Act for the supply of water by the defendants, and was under the provisions of the said Act, and the Waterworks Clauses Act, 1847, entitled, for reward to be paid by him to the defendants in that behalf, to a supply of water by the defendants, and had complied with all the provisions of the said Acts in order to entitle him to such supply for domestic and other purposes; that the defendants had laid down pipes near to the dwelling-house, &c., of the plaintiff for the purpose of supplying water according to the said Acts, and had fixed to such pipes fire-plugs; that nevertheless the defendants, neglecting their duty in that behalf, did not at all times, and especially at the time of the breaking out on the dwelling-house, &c., of the plaintiff of the fire hereinafter mentioned, keep charged with water their pipes to which fire-plugs had been fixed, under such pressure as by the defendants' Act and the Waterworks Clauses Act, 1847, was required, although the defendants were not prevented from so doing by frost, unusual drought, or other unavoidable cause or accident, or by the doing of necessary repairs. That, during the time the pipes, with the said fire-plugs affixed thereto, were so laid as aforesaid, a fire broke out in the timberyard and saw-mills of the plaintiff, and by reason of the defendants not having charged the pipes under such pressure as aforesaid, 1877. v. a proper supply of water could not be procured for the purpose ATKINSON of extinguishing the fire, and in consequence thereof the timber- NEWCASTLE yard and saw-mills were burnt down, and the plaintiff was greatly damaged. Demurrer and joinder. The Court of Exchequer held the declaration good1 on the authority of Couch v. Steel 2. The defendants appealed. LORD CAIRNS, L. C.-In considering the sufficiency of this declaration, we may, as I pointed out in the course of the argument, reject at once all that part of it which relates to the supply of water for reward, for the breach alleged is not dependent on the payment of money. It is a breach of a duty to keep certain pipes, to which fire-plugs are fixed, charged with water at a certain pressure, a duty which is not made, by the Act creating it, to depend in any way upon the payment of money by anybody. That duty of so keeping the pipes charged arises under s. 42 of the Waterworks Clauses Act, 1847, by which it is enacted that the undertakers shall at all times keep charged with water, under such pressure as aforesaid (which by s. 35 is such pressure as will make the water reach the top storey of the highest house within the limits), all their pipes to which fire-plugs shall be fixed,. . . . and shall allow all persons at all times to take and use such water for extinguishing fire without making compensation for the same.' Now in my judgement the general scheme of these waterworks clauses, and of any Act in which they are incorporated, would appear to be this: A waterworks company, proposing to supply water to a town, apply to Parliament for powers to take certain springs and land, and to charge rates for the supply of water, in consideration of which powers being granted them they enter into certain obligations. Besides general obligations to supply the town commissioners with water for public purposes, they enter into certain special obligations as to fire-plugs, viz. to keep the pipes connected with those plugs charged with water at a certain pressure, and to allow all persons-not any particular persons, or owners of particular houses, but all persons-at all times to take 1 L. R. 6 Ex. 404. 2 3 E. & B. 402; 23 L. J. (Q. B.) 121. AND GATESHEAD WORKS COMPANY. V. NEWCASTLE 1877. water for the purpose of extinguishing fire without making comATKINSON pensation for it. The object for which the water is in such case to be used is a public object, and to effect that object the company are willing to accept the obligation to allow any person to take WATER any quantity of water gratuitously, and further to keep the pipes from which that water is to be taken charged at such a pressure that the water so taken may be most effectively employed. AND GATESHEAD WORKS COMPANY. Lord Cairns, L. C. That this creates a statutory duty no one can dispute, but the question is whether the creation of that duty gives a right of action for damages to an individual who, like the plaintiff, can aver that he had a house situate within the company's limits and near to one of their fire-plugs, that a fire broke out, that the pipes connected with the plug were not charged at the pressure required by the section, and that in consequence his house was burnt down, Now, à priori, it certainly appears a startling thing to say that a company undertaking to supply a town like Newcastle with water would not only be willing to be put under this parliamentary duty to supply gratuitously for the purpose of extinguishing fire an unlimited quantity of water at a certain pressure, and to be subjected to penalties for the non-performance of that duty, but would further be willing in their contract with Parliament to subject themselves to the liability to actions by any number of householders who might happen to have their houses burnt down in consequence; and it is, à priori, equally improbable that Parliament would think it a necessary or reasonable bargain to make. In the one case the undertakers would know beforehand what they had to meet as the consequence of their neglect, they would come under definite penalties; in the other they would virtually become gratuitous insurers of the safety from fire, so far as water is capable of producing that safety, of all the houses within the district over which their powers were to extend. It is, however, necessary to look at section 43, which imposes the penalty for the breach of the duty in question. That section deals with four classes of neglect, the neglect to fix, maintain, or repair fire-plugs, the neglect to furnish the town commissioners with a sufficient supply of water for public purposes, the neglect to keep the pipes charged under the required pressure, and the neglect to furnish any owner or occupier with the supply of water to which he is entitled. For each of those four classes of neglect |