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sheep and Gould, J., in Mason v. Keeling, 12 Mod. 332 C1699), p. 335:
"If a dog be assue to bite cows, and the master knows it, this will not be
sufficient to make him liable for biting cows."

Certain classes of domestic animals may by nature be so prone to do
certain mischiefs that knowledge of their tendency will be presumed, so it
was held that the inclination of the ordinary wild bull to become irritated by
unusual surroundings was so notorious as to require a person driving the
bull through the public streets to take precautions against it, Darnum v.
Ter/yeviiy.JS ?^lich. 557 (1889), and in Fleming v. Orr, 2 Macq. 14 (1856),
Lord Cockburn held that "the tendency to worry sheep is a natural one in
such dogs (foxhounds'), and for neglecting to guard against it the owner
is responsible." In Hnlinke v. Frederick. T40 \. Y. 224 ( i8q3\ the fact that
a dog was dst') a watchdog and C2nd') was kept chained was held suf-
ficent evidence to warrant the jury in finding that the owner knew it to be
savage, but see as to the first fact. Moss v. Partridge. 9 111. App. 490 (1881),
contra, and as to the second. Kenyon, C. J., in Jones v. Perry, 2 Esp. 482
(1796"), accord, and Ellenborough, C. J., in Beck v. Dyson, 4 Camp. 198
(iSisX contra.



554



HEALEY V. BALLANTINE & SONS



^1



plaintiff ; and it is enough to say that there is no evidence to support
the affirmative of the issue that there was negHgence on the part
of the defendant for which an action would lie by the plaintiff.
The simple fact found is that the horse was on the highway. _He
may have been there without negligence of the owner; he might
have been put there by a stranger, or might have escaped from
some enclosed place without the owner's knowledge. To entitle
the plaintiff to recover there must be some affirmative proof of neg-
ligence in the defendant in respect of a duty owing to the plaintiff."^
In a later case (Lee v. Riley, i8 C. B. [N. S.] 722), through
a defect of fences, which it was the duty of the defendant to repair,
his mare strayed in the night-time from his close into an adjoining
field, and so into the field of the plaintiff's in which was a horse ;
from some unexplained cause the animals quarreled, and the result
was that the plaintiff's horse received a kick from the defendant's
mare which broke his leg, and he was necessarily killed. It was
held that the defendant was responsible for his mare's trespass, and
that the damage was not too remote. In that case there was no
proof that the defendant's animal was vicious. The liability of the
defendant was put upon the ground that the animal was trespassing
on the plaintiff's close, and that the foundation of the cause was
negligence on the part of the defendant in neglecting properly to
keep up his fences, by means of which his mare strayed from his
close and injured the horse.^ Chief Justice Earle sat in both of
these cases and took part in the decision of each. In Ellis v. Lofhis
Iron Co., L. R., 10 C. P. 10, the defendant's horse injured the



* Cox V. Burbridge was followed in the two recent cases of Hadwell v.
Righton, L. R. 1907, 2 K. B. 345. where one of the defendant's fowls, stray-
ing on the highway, being frightened by a dog belonging to a third person,
flew into the spokes of the plaintiff's bicycle and upset him, and Higgins v.
S earle, 100 L. J. 280 (1909) where the defendant's sow, lying on the high-
way frightened a horse drawing a van causing it to shy "in to the path of
the plaintiff's motor car, thus bringing about a collison between the van and
car. It is to be noted that while the jury found that the probable result of a
sow lying by the highway was that horses would shy. "This point was not
raised on the pleadings and no evidence seems to have been given at the
trial in support of it," per Cozens-Hardy, M. R. p. 281, and Clinton v.
Lyons Co., L. R. 1912 3 K B. 198.
rO ^ See Doyle v. Vance, 6 Victorian L. R. Cases at Law 87 (1880) in which

it is said that in Cox v. Burbridge, "the defendant was held not guilty of
\ * actionable negligence : but that was on the ground that the horse had a right
^ to be on the highway, as well as the child."

*See. accord: Jewett, C. J., in Van Lenven v. Lyke, i N. Y. 515 (1848),
p. 517. "In declaring for such trespasses," (by animals escaping from their
owners' premises), "it is competent for the plaintiff to allege the breaking
and entering his close by such animals of the defendant, and there com-
mitting particular mischief or injury to the person or property of the
plaintiff, and upon proof of the allegation, to recover as well for the damage
for the unlawful entry as for the other injuries so alleged, by way of
aggravation of the trespass, without alleging or proving that the defendant
had notice that his animals had been accustomed to do such or similar mis-
chief. The breaking and entering the close in such action is the yibstantive



cause of action and the rest is laid as matter of aggravation only



mp

7




HEALEY V, BALLANTIXE Sc SONS



^ " ^



plaintiff's mare by biting and kicking her through the fence separat-
ing the phiintiff's land from the defendant's. It was held that the
defendant was liable in damages, apart from any question of negli-
gence on its part. The ground of that decision is stated in the opin-
ion of Mr. Justice Keating to be this : "The horse, it is found, kicked
and bit the mare through the fence. I take it that the meaning of
that must be that the horse's mouth and feet protruded through the
fence over the plaintiff's land, and that would, in my opinion,
amount in law to a trespass."

Mr. Beven, commenting on these cases, used this languag
"Although when a horse is in a place where it has a right to be, an}
disposition to kick that it may suddenly manifest does not import a
liability on its owner; when the horse is where it should not be,
and kicks, the kicking is n ot so far remote from what is to be e.\
pected from the natural disposition "of horses that the injury cannot"
be said to follow in the natural and obvious sequence from the orig-
inal wrongful act which allowed the horse to get where an oppor-
tunity of doing injury is given." i Beven Negl. 97. The same
principle is laid down in 2 Am. & Eng. Encycl. L. (2d ed.) 364 in
these words: "If domestic animals are rightfully in the place where^
they do the injury complained^ol, tbe owner will not be liable unless
he had knowledge of the vicious propensity of such animals; and in
an action for such injuries, knowledge on the part of the owner
must be alleged and proved." ^ —

It may safely be asserted that the decision of that {Co.v v. Bur-^
bridge) case was contrary to the great weight of authority in this
country,^ and it seems to us not sustained on principle or by pre-
ceding authority in England. The case of Co.v v. Biirbridge is, how-
ever, so clearly distinguishable from this case that if recognized as
authority, it would be inapplicable in this instance. In that case 1l
was assumed by the court and made the groundwork of decision that
there was no evidence of an actionable wrong on the part of the
owner of the animal ; that it may have been in the street without any
negligence of the owner, or might have been put there by a stranger,
or might have escaped from some enclosed place without the owner's
knowledge. In the present case the defendant's horse was in charge^
of a servant, for whose acts and negligence the defendant is respon-
sible. The trial court charged the' jury that the defendant "would
have a right to cross that sidewalk with its horses, going in a nd out
of the stable, to and from the public street. B ut it is undisputed in^

Accord, also: Dolph v. Ferris, 7 W. & S. CPa.) :^67 (iSTT). defendant's
bull, not shown to be vicious to his knowledcre, hroke into plaintiff's enclosure
and pored his horse pasturincr therein, .^s to whether in such case the
liability is based upon the defendant's neplipence in failing to maintain his
fences in good order, see Anon, KeUway C., and notes thereto ante, p. 524.

'A large part of the opinion is omitted in which the court reviews an«!
quotes at length from the following cases supporting its decision. Dickso i
v McCox, 39 X. Y. 400: Dohcrty v. Szveetser. 82 Hun (X. V.) 556; Goodnun
v. 6"(JV. 15 Pa. St. 188: Fallon v. O'Brien. 12 R. I. 518; Barnes v. cV/a/'.-".
4 .\llen (Mass.) 444; Baldwin v. Ensign, 49 Conn. 113; Marstand v. Murray,
148 Aiass. 91.




9^



f^



556 BEAULIEU V. FIXGLAM

this case that the horse was not crossing the sidewalk, being__led_
from the roadway into the stable, but was being led along the side-
walk ; and it is uncontradicted tliat at the time this occurrence hap-

■ pene d the horse was about half way between the opening leading
from the street to the stable and the corner of Ferry and Christie

^__siPeets." The court also instructed the jury that the plaintiffs could
only recover by establishing a preponderance of the testimony that
the servant of the defendant was in some way careless and negligent
at the time.

^, ^iding o r leading a horse along the sidewalk is a nuisance ; for
• such._an.jitiTawful use of the sidewalk, an indictment would lie. It
r^ ~,MtaLslas sume -d by the English judges, in their opinions in Hammock
V. White, supra, that riding and driving on the sidewalk as a volun-
tary act was unlawful, and that the defendant would be liable in
damages for killing a man lawfully using the sidewalk, unless he
showed he was carried on the sidewalk by his horse, which was
restive and uncontrollable. The cases from the courts of our sister
states that have been cited are also to the same effect.

The situation, too, at the time this injury was inflicted is of
consequence in this case. The sidewalk along which the defendant's
servant was leading the horse was fenced off by a wooden railing
along the curb, separating the sidewalk from the street, and the
plaintiff was endeavoring to get out of the way of the horse by going
a little further out towards the railing, when the horse kicked her.
There was no testimony offered on the part of the defence, and it
may fairly be assumed from the testimony of the plaintiff Mary
Healey that if the person leading the horse had looked he might have

_seen Ihe perilous position in which she was placed by his unlawful

ji§£ of the sidewalk.

We think the instruction of the trial court on this subject was
correct.*



SECTION 2.
Liability for Fire.

BEAULIEU V. FINGLAM.

Y 132 Henry IV. 18. 5. 1401.

One brought this writ : — "Thus Willielmus Beaulieu, &c., seeks
of Rogerum Finglam, wherefore since according to the laws and

* Accord: Troth v. Wells, 8 Pa. Sup. C. i (1898), where the plaintiff
was injured while attempting to drive from her son's premises a cow
trespassing thereon, but see dissenting opinion of Wickham, J. ; Hardiman v.
Whalley, 172 Mass. 411 (1899) and, in Decker v. Gammon, 44 Maine 322
(1857), where, though the action was on the case, the defendant's horse which
had escaped from the defendant's close or from the highway had entered
the plaintiff's close and injured the latter's horse pasturing therein. Davis. J.,
says, p. 329, "The owner of domestic animals, if they are wrongfully in the
place where they do any mischief, is liable for it, though he had no notice
that they had been accustomed to do so before."



BEAULIEU V. FIXGLAM 557

customs hitherto obtaining in this our kingdom of England, that
everyone of this kingdom shall keep his fire safe and secure and keep
control of it, nor by his fire damage come forth to any of his neigh-
bors in any manner, the aforesaid Roger kept his fire at Caerlon so
negligently that through a defect in this duty of guarding the afore-
said fire the goods and chattels of the aforesaid Willielmus, to the
estimated value of forty pounds in the house of the same, and the
aforesaid house, then and there were consumed and destroyed to
the damage of the same Willielmus, etc.," and he counted accord-
ingly. Horneby, Judgment of the count for he has counted of a
common custom of the realm, and has not said that this custom
has been used, etc. To which all the court said, pass over, for com-
mon law of this realm is common custom of the realm, and then
Thirning said that a man shall answer for his fire which by mis-
fortune burns the goods of another. And certain of them were of
opinion that the fire cannot be called his fire because a man cannot
have property in fire. And his opinion was not allowed. Mark-
iiAM. A man is held to answer for the deed of his servant or of
his housekeeper {hosteller) in such case, for if my servant or my
housekeeper put a candle on a wall and the candle falls into the
straw, and burns all my house and the house of my neighbor also,
in that case I shall answer to my neighbor for the damage that he
has. Which was conceded by the court. Horneby. Then he should
have had a writ "Because he burned or set fire to his house." Hull,
That would be against all reason to put guilt or default on a man
Avhen there is none in him, for negligence of his servants cannot
be called his doing. Thirning, If a man kill or stab a man by acci-
dent he shall forfeit his goods, and it is necessary that he
have his charter of pardon of mercy. To which the court agreed.
Markham, I shall answer to my neighbor for him who enters my
house by my leave or my knowledge, or is entertained by me or by
my servant, if he does, or any of them do such a thing as (that of
the) candle or other thing, by which act the house of my neigiibor
is burned. But if a man out of my house, against my will sets fire
to the straw of my house or anything by which my house is burned

The owner of a dog who suffers it to run at large in the streets is not
liable for the injuries it does there unless the vicious nature of the animal
is known to its owner. Leonard v. Donoghue, 87 App. Div. (N. Y.) 104
(1903), see also. Marsh v. Kooiis,7S Ohio St. 68 (1908). where it was held
that, in the absence of a statute, it was the duty of an owner not to suffer
an animal, though not known to be vicious, to run at large upon the high-
way "under" (but only under) "circumstances where he should apprehend
that the safety of passengers would be in danger," and held that the de-
fendant was not liable to the plaintiff whose horse took fright at the former's
cow lying by the highway, and Zarnstein v. Shrumm, 22 Ont. App. Ref. 263
(1895). horse frightened bv a turkev-cock straying upon the highwav and
cf. Hadzi'ell v. Righton, L. R. 1907, 2 K. B. 345,' and Higgings \.^Searle, 100
L. J. 280 (1909), note 1.



-^8 CLARK 7'. FOOT

and the houses of my neighbors are also burned, for that I shall
not be held to answer to them, etc., for that cannot be called malice
on my part, but against my will. Horneby, This defendant is undone
and impoverished forever if this action is maintained against him,
for then twenty other such suits will be taken against him for such
matters. Thirning, What is that to us? It is better that he be
wholly undone than that the law be changed for him. And then
they were at issue that the house of the plaintiff was not burned
by the fire of the defendant, ready, etc. And the others alleged the
contrary.^

* See Professor John H. Wigmore's learned and valuable articles on
Responsibility for Tortious Acts. Its History, 7 Harvard L. R. 315, 383, 441 ;
especially pp. 448-449.



TUBER VIL V. STAMP.

Court of King's Bench, 1691. i Salkeld. 13*

Case on the custom of the realm quare negligenter' custodiint
ignum suum in clauso stio, ita quod per flamnias blada quer. in
quodam clauso ipsius quer. combusta fuerunt. After verdict per
quer it was objected, the custom only extends to fire in his house,
or curtilage, (like goods of guests') which are in his power. Non
alloc. For the fire in the field is his fire as well as that in his house ;
he made it, and must see it does no harm, and answer in dam-
ages if it does. Every man must use his own so as not to hurt
another; but if a sudden storm had risen which he could not stop,
it was matter of evidence and he should have showed it.* And Holt,
Rokesby, and Eyre against the opinion of Lurton, who went upon
the difference between fire in an house which is in a man's custody
and power, and fire in a field, which is not properly so ; and it would
discourage husbandry, it being usual for farmers to burn stubble,
&c. But the plaintiff had judgment according to the opinion of the
other three. _

' ■ CLARK V. FOOT.

Supreme Court of Judicature of New York, 181 1. 8 Johnson, 421.

In error, on certiorari, from a justice's court.
Clark sued Foot before the justice, to recover damages sustained
by reason oi Foot's setting fire to the .plaintiff's woods.

*Th"e pleadings are given, 2 Salk7726r See the same case somewhat differ-
ently reported under the name 0/ Turben'iJIr v. Stamp, in Carthew, 425 and
under the name of Turberville v. Stampe, in i Ld. Raym. 264.

*As to what is meant by negligenter, see the pleadings, 2 Salk. 726, Rastell
Ent. 8 and Prof. Wigmore, in 7 How. L. R., p. 448.

*0f an innkeeper, see i Ld. Raym. 264.

* "As for the matter of the tempest that appeared only upon the evidence,
not upon the record, and therefore the King's Bench cannot take notice of it,
but it was good evidence to excuse the defendant at the trial," i Ld. Raym.
264.



FLETCHER Z'. RVLAXDS, ct ol. 559

The cause was tried by a jury. A witness testified that he set
fire, by the direction of the defendant, to certain fallow ground,
belonging to the defendant, which fire run into the woodlands of
the plaintiff; that he told the defendant of it, who tried only to
prevent the fire from burning his own farm. The fire burnt during
six or seven days, on the pine hill of the plaintiff, and damaged his
woodland to the amount of sixty dollars.

The return stated that the defendant produced a immber of
witnesses, who testified nothing contradicting the materiality of the
above evidence, and that the jury found a verdict for the defendant,
on which the justice gave judgment.

Per Curiam. The point to be tried was, whether there was neg-
ligence on the part of Foot, or his agent; for Foot was as much
accountable for the negligence of his servant, whilst employed in his
business, as if the fire had spread by his own neglect.

It is a lawful act for a person to burn his fallow; and if his
neighbor is injured thereby, he will have a remedy, by action on the
case, if there be sufficient ground to impute the act to the negligence
or misconduct of the defendant or his servants.

Should a man's house get on fire, without his neglect, or default,
and burn his neighbor's, no action would lie against him, notwith-
standing the fire originated in his house, because it was lawful for
him to keep fire there. (3 Bl. Comm. 43. 2 Noy's Max. c. 44.) The
same rule would apply to this case.

Here there is no evidence of negligence, and the jury have
passed on the case.^

Judgment affirmed. /] (K>^



-^^^c



(sbcTION 3. t v^

Lfiability for escape of substances collected or kept upon Land.'

FLETCHER v. RYLANDS, et al.

In the Exchecquer. 1865. 3 Hurlstone and Coltman, 774.

In the Exchecquer Chamber. 1866. L. R. i Ex. 265.

In the House of Lords, sub nomine, Rylands, et al., v. Fletcher. 1868.

L. R. 3 H. L. 330.

This was an action brought in 1861^ and tried at the Liverpool
Summer Assizes (1862), when a verdict was found for the plaintiff
subject to the award of an arbitrator, who was afterwards empow-

^ Accord: Lehigh Bridge Co. v. Lehigh Nav. Co., 4 Rawle, 9 (1833),
semble, per Gibson C. J., pp. 24-25; Bachelder v. Heagan, 18 Me. 32 (1840) ;
Toitrtcllot V. Rosebrook, 11 Met. (52 Mass.) 460 (1846) ; Streaet v. Hawley,
22 Barb. (N. Y.) 619 (1856) ; Lahn v. Roberts, 8 Wis. 255 (1859) ; P. C. & St.
L. R. R. V. Culver, 60 Iiid. 469 (1878) ; Johnson v. Veneman, 75 Kans. 278
(1907) ; and see case given in note 4 to Smith v. Ry. Co., ante, p. 66. The
citation from Blackstone's Commentaries is a misquotation for i Bl. Com.
431, where the learned commentator states that the common law is changed
by statute of 6 Anne c. 3 which, he says, "ordains that no action shall be
maintained against any one in whose house or chamber (extended by 14 Geo.
III. c. 78 to include one in whose estate) any fire shall accidentally arise":



560 FLETCHER V. RVL.\NDS, Ct ol.

ered by a Judge's order to state a special case instead of making an
award. The material facts in the special case stated by the arbi-
trator - were as follows: The defendants were the owners of^Tl
mill ; in order to supply it with water they constructed upon j^ifi.
nearby land of Lord Wilton, with his permission, a reservoir. The
plaintilT under lease from Lord \\'ilton was working certain coal
mines under lands close to but not adjoining the premises on which
the reservoir was constructed. They worked their mine in the direc-
tion of the reservoir until they came upon certain old workings, part \
of which at least had been made and abandoned at a time beyond ]
living memory. These consisted of horizontal passages and vertical
shafts, the latter apparently filled with rubbish and marl similar to
that of the solid earth surrounding them. The defendant employed
a competent engineer and competent contractors to plan and.,ron-
struct the reservoir, and it was so planned-anji. constructed solely by
them upon a site, in the choice of which the defendants were guilty
of no personal fault, though in fact the above mentioned old work-
ings lay beneath it and continuing under the intermediate lands
communicated, at the point to which the plaintiff had pushed its
W'Orkings in that direction, with the workings of the plaintiff. The con-
tractors in excavating for the bed of the reservoir came upon five of
the above mentioned vertical shafts, the sides or walls of some of these
were of timber, but, being filled with soil of the same kind as that
composing the surrounding ground, neither the contractors, nor the
defendants suspected that they were abandoned mine shafts. The
"arSitrator found that the defendants were guilty of no personal neg-
ligence or fault, but that the engineer and contractors had not in
;fa^cFexercised proper care, with reference to the shafts discovered,
to provide for the sufficiency of the reservoir to bear the pressure
which it was designed to bear when in use. The reservoir was com-
pleted early m December, i860, when the defendants had it partly
filled. Within a few days, one of the shafts, which had been met
while excavating, gave way and burst downward, letting the water
into the old abandoned workings beneath, through which it flowed,
through the communications which the plaintiffs in working their
mine had made between the two, into the plaintiffs' workings, flood-
ing their mine.

for he says, "their own loss is sufficient punishment for their own or their
servants carelessness." All the earher American cases either cite this passage
or adopt Mr. Justice Blackstone's view of the effect of this statute, but m
Filliter v. Phippard, 11 Q. B. (A. & E. N. S.) 347 (1847) the court saymg.
p. 356, that "it would appear that Blackstone had drawn a conclusion from the
enactment cited (Stat. 6 Anne c. 3) which it by no means sustains," held that
the statutes only relieved one in whose house or on whose estate a fire was
accidentally started not one who intentionally and "knowingly lighted"_a fire
thereon or through whose negligence, or that of his servants, it originated.
In Lansing v. Stone, Z7 Barb. (N. Y.) 17 (1862), Blackstone's view is carried
to its logical conclusion and it is held that a defendant is not liable for the
spread of a fire started in his room, even by his own negligence.

*The declaration containing three counts, all alleging negligence on the
defendant's part is set out in L. R. i Ex., pp. 265-266.

' The facts given are condensed from those given in the case stated by the
arbitrator which is given at length in 3 H. & C, pp. 775 to 780.



FLETCHER :'. RVLAXDS, Ct oL 561

The question for the opinion of the Court was whether the plaint-
iff was entitled to recover damages from the defendants by reason
of the matters thus stated by the arbitrator.

Manisty (with whom was /. A. Russell), for the plaintifif.^ The
defendants are liable for the damage resulting to the plaintiff from
their diverting the water from its natural course, and collecting it
in a reservoir. [Pollock, C. B. It is not an unlawful act for a
man to collect water in a reservoir upon his own land.] Provided
he does not allow it to escape so as to injure his neighbor's land.