can construct its works without injury to private rights, it is in general bound to do so" (k). Hence there is a material distinction between cases where the Legislature "directs that a thing shall at all events be done " (7), and those where it only gives a discretionary power with choice of times and places. Where a discretion is given, it must be exercised with regard to the common rights of others. A public body which is by statute empowered to set up hospitals within a certain area, but not empowered to set up a hospital on any specified site, or required to set up any hospital at all, is not protected from liability if a hospital established under this power is a nuisance to the neighbours (m). And even where a particular thing is required to be done, the burden of proof is on the person who has to do it to show that it cannot be done without creating a nuisance (n). A railway company is authorized to acquire land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular householder, in building workshops so situated (though within the authorized limits) that the smoke from them is a nuisance to him in the occupation of his house (o). But a statutory power to carry cattle by railway, and provide station yards and other buildings for the reception of cattle and other things to be carried (without specification of particular places or times) is incidental to the general purposes for which the railway was authorized, and the use of a piece of land as a cattle yard under this power, though such as would be a nuisance (k) Biscoe v. G. E. R. Co. (1873) 16 Eq. 636. (7) 6 App. Ca. 203. (m) Metropolitan Asylum District v. Hill (1881) 6 App. Ca. 193. (n) Attorney-General v. Gaslight and Coke Co. (1877) 7 Ch. D. 217, 221, 47 L. J. Ch. 534. (0) Rajmohun Bose v. East India R. Co. (High Court, Calcutta), 10 Ben. L. R. 241. Qu. whether this be consistent with the case next cited. at common law, does not give any right of action to adjoining occupiers (p). Such a case falls within the principle not of Metropolitan Asylum District v. Hill, but of Rex v. Pease. A gas company was authorized by statute to have its pipes laid under certain streets, and was required to supply gas to the inhabitants. The vestry, being charged by statute with the repair of the streets, but not required or authorized to use any special means, used steam rollers of such weight that the company's pipes were often broken or injured by the resulting pressure through the soil. It was held that, even if the use of such rollers was in itself the best way of repairing the streets in the interest of the ratepayers and the public, the act of the vestry was wrongful as against the gas company, and was properly restrained by injunction (q). "An Act of Parliament may authorize a nuisance, and if it does so, then the nuisance which it authorizes may be lawfully committed. But the authority given by the Act may be an authority which falls short of authorizing a nuisance. It may be an authority to do certain works provided that they can be done without causing a nuisance, and whether the authority falls within that category is again a question of construction. Again the authority given by Parliament may be to carry out the works without a nuisance, if they can be so carried out, but in the last resort to authorize a nuisance if it is necessary for the construction of the works" ("). (p) London and Brighton R. Co. v. Truman (1885) 11 App. Ca. 45, 55 L. J. Ch. 354, reversing the decision of the Court of Appeal, 29 Ch. Div. 89. (q) Gas Light and Coke Co. v. Vestry of St. Mary Abbott's (1885) 15 Q. B. Div. 1, 54 L. J. Q. B. 414. The Court also relied, but only by way of confirmation, on certain special Acts dealing with the relations between the vestry and the company. See 15 Q. B. D. at p. 6. (r) Bowen L. J., 29 Ch. D. at p. 108. An authority accompanied by compulsory powers, or to be exercised concurrently with authorities ejusdem generis which are so accompanied, will, it seems, be generally treated as absolute; but no single test can be assigned as decisive (8). 8.-Ineritable Accident. accident ful act. In the cases we have just been considering the act by Inevitable which the damage is caused has been specially authorized. resulting Let us now turn to the class of cases which differ from from lawthese in that the act is not specially authorized, but is simply an act which, in itself, a man may lawfully do then and there; or (it is perhaps better to say) which he may do without breaking any positive law. We shall assume from the first that there is no want of reasonable care on the actor's part. For it is undoubted that if by failure in due care I cause harm to another, however innocent my intention, I am liable. This has already been noted in a general way (t). No less is it certain, on the other hand, that I am not answerable for mere omission to do anything which it was not my specific duty to do. It is true that the very fact of an accident happening is commonly some evidence, and may be cogent evidence, of want of due care. But that is a question of fact, and there remain many cases in which accidents do happen notwithstanding that all reasonable and practicable care is used. Even the "consummate care" of an expert using special precaution in a matter of special risk or importance is not always successful. Slight negligence may be divided by a very fine line from unsuccessful diligence. But the distinction is real, and we have here to do only (s) See especially Lord Blackburn's opinion in London and Brighton R. Co. v. Truman. Conditions of the inquiry. On prin ciple such excludes liability. with the class of cases where the facts are so given or determined as to exclude any negligence whatever. The question, then, is reduced to this, whether an action lies against me for harm resulting by inevitable accident from an act lawful in itself, and done by me in a reasonable and careful manner. Inevitable accident is not a verbally accurate term, but can hardly mislead; it does not mean absolutely inevitable (for, by the supposition, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw of Massachusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed. It may seem to modern readers that only one solution accident of the problem thus stated is possible, or rather that there is no problem at all (u). No reason is apparent for not accepting inevitable accident as an excuse. It is true that we may suppose the point not to have been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first impulse of private revenge. But private revenge has disappeared from our modern law; moreover we do not nowadays expect a reasonable man to be angry without inquiry. He will not assume, in a case admitting of doubt, that his neighbour harmed him by design or negligence. And one cannot see why a man is to be made an insurer of his neighbour against harm which (u) This, at any rate, is the view of modern juries; see Nichols v. Marsland (1875) L. R. 10 Ex. at p. 256, 46 L. J. Ex. 174; Holmes v. Mather, L. R. 10 Ex. at p. 262. (by our hypothesis) is no fault of his own. For the doing of a thing lawful in itself with due care and caution cannot be deemed any fault. If the stick which I hold in my hand, and am using in a reasonable manner and with reasonable care, hurts my neighbour by pure accident, it is not apparent why I should be liable more than if the stick had been in another man's hand (v). If we go far back enough, indeed, we shall find a time and an order of ideas in which the thing itself that does damage is primarily liable, so to speak, and through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions of Roman law, and in our own criminal law by the forfeiture of the offending object which had moved, as it was said, to a man's death, under the name of deodand. But this is matter of history, not of modern legal policy. So much we may concede, that when a man's act is the apparent cause of mischief, the burden of proof is on him to show that the consequence was not one which by due diligence he could have prevented (r). But so does (and must) the burden of proving matter of justification or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed. (v) Trespass for assault by striking the plaintiff with a stick thrown by the defendant. Plea, not guilty. The jury were directed that, in the absence of evidence for what purpose the defendant threw the stick, they might conclude it was for a proper purpose, and the striking the plaintiff was a mere accident for which the defendant was not answerable: Alderson v. Waistell (1844) 1 C. & K. 358 (before Rolfe B.). This, if it could be accepted, would prove more than is here contended for. But it is evidently a rough and ready summing-up given without reference to the books. (x) Shaw C. J. would not concede even this in the leading Massachusetts case of Brown v. Kendall, 6 Cush. at p. 297. |