Negligence.

DEFINITION, ETC.

Negligence in law is the omission to do something which a person of average prudence would do, or the doing of something which a person of average prudence would not do--such person being in either case in a situation which subjects him to the duty of taking care.

For instance, a coach is upset through the carelessness of the driver and a passenger is injured; the proprietor is liable for the negligence of his servant, occurring in the course of his employment; or where a person coming to a house, at accustomed hours and upon lawful business, is injured by a savage dog which has been left at large, the owner or keeper is answerable for the damage caused by his negligence.

CASE REQUIRED OF SKILLED PERSONS.

In cases where the knowledge required is of a higher degree than that demanded under ordinary circumstances, the defendant will be liable unless he has done all that could reasonably be required of any skilful person under the special circumstances e.g., case of surgeons, physicians, engineers, architects,

etc.

THE LOSS MUST BE THE PROBABLE CONSE

QUENCE OF THE NEGLECT.

The loss or injury must be the necessary or probable consequence or immediate result of the act complained of; for instance, where a horse escaped into a public road and kicked somebody, it was held that the owner was not liable unless he knew the horse to be vicious-for it is not a necessary and ordinary consequence of a horse being allowed to stray into a road that it should kick persons without provocation. But where a man allowed his gate to get out of repair and a horse strayed into an adjoining field where there were other horses and kicked and injured one of them, it was held that the person whose duty it was to keep the gate in repair was liable to the owner of the injured horse for the damage was immediately caused by the party's neglect, and when a strange horse comes among others it is very probable that it will cause damage.

ACTION FOR NEGLIGENCE.

The action for negligence belongs to the class of trespass on the case; to successfully maintain such action the plaintiff must prove that his injury arose in such a manner that it might

be due to the defendant's negligence, and also adduce facts showing that the defendant failed to take such care as it was his duty to exercise under the circumstances.

Generally speaking, the person who complains of negligence must prove that it existed; for instance, if a person is knocked down by a cab in the public street, he must prove that the accident was due to carelessness on the part of the cabman, otherwise he cannot recover-for in such cases both parties are in a place where they have an equal right to be, and the accident may be equally due to want of care on the part of the person injured.

CONTRIBUTORY NEGLIGENCE.

Where a party who has been brought into danger in respect of either his person or property by the negligence of another yet fails to take reasonable steps to avoid the impending injury, he is said to be guilty of "contributory negligence," and therefore loses his remedy. But such negligence must be the immediate cause of the injury, and the circumstances must not be such that the defendant might, by the exercise of due care, have avoided the consequences of the plaintiff's carelessness.

For instance, in Davies v. Mann-called the "donkey case" —A. turned his donkey out in a highroad with its fore-feet in hobbles, and it was subsequently run over by B.'s waggon driven at a fair pace; it was held that the plaintiff could recover damages in spite of his own negligence, because the defendant's negligence was the proximate or immediate cause of the injury, and because if he had used ordinary care the accident would not have occurred.

DANGEROUS ARTICLES, FIRE, ETC.

With regard to dangerous things such as fire, poison, explosives, etc., every person is bound to use the utmost care, and, unless the injury consequent therefrom is due to some cause beyond human control, he will be liable.

For instance, where a man built a dam on his land in a proper and substantial manner, and it broke and flooded his neighbour's property, he was held liable, though there was no negligence on his part; but, in a similar instance, where the overflow was caused by a heavy storm, the defendant was exonerated -the immediate cause being the act of God. In respect to fire where not used for domestic purposes, the liability for injury resulting from its employ is of the strictest; and the same applies in respect of loaded fire-arms and explosives.

NEGLIGENCE OF OCCUPIERS OF BUILDINGS The occupier of any building is bound to keep it in a reasonably safe state of repair, otherwise he will be liable to any

person lawfully coming on the premises and sustaining injury. But where the defects are such as cannot be discovered by the exercise of reasonable care, the owner will be exonerated. The above liability also extends to the case of injury to persons lawfully passing over or being on land adjacent to the premises; e.g., if A. leaves the cellar of his house uncovered, and B. in passing along a public way falls into it and is injured, A. will be

liable to an action at his suit.

Newspapers-Laws Relating to.

It is provided by statute that every newspaper must be registered in the Supreme Court and the name of the proprietor disclosed, in order that persons responsible for the publication of any blasphemous or seditious libel may be called to account.

NEWSPAPERS, HOW REGISTERED.

An affidavit or affirmation must be made by the proprietor which must state:

1. The name, additions, and place of abode of every person who is to be the printer or publisher of the paper and of all the proprietors thereof.

2. A true description of the house or place where the newspaper is to be printed.

3. The title of the paper.

The person by whom the paper is to be printed must also enter into a recognizance in the sum of £300, together with two sureties of £150 each, conditioned for the due payment by the proprietor of any penalty which may be imposed upon him in respect of the publication of any seditious or blasphemous libel.

The affidavit must be sworn before the Prothonotary or the local Police Magistrate; the recognizance must be taken before a Judge of the Supreme Court or before such magistrate.

Notice must also be given by the proprietor to the Prothonotary stating that he has a printing press and types, and the place where his printing office is situated, and requiring it to be registered in accordance with the law.

A certificate of due registration is then issued to the proprietor of the paper.

SUBSCRIBERS TO PERIODICALS, LIABILITIES OF.

A subscriber to a newspaper or other periodical who refuses or neglects to take the periodical from the post office or other

place to which it is directed may be held responsible until he has ordered the periodical to be discontinued.

It has also been decided that such refusal or neglect is primâ facie evidence of intentional fraud.

If subscribers remove or change their addresses without informing the publisher or bookseller and the publication is sent to the former address, they are responsible.

Any person who receives a newspaper, magazine, or other periodical and makes use of it is legally responsible to pay for it -whether he ordered it or not; this is an instance of a contract implied in law, the sending of the periodical constituting the offer and the using of it the acceptance.

If payment in advance is made for a periodical, express notice of discontinuance should be given to the publisher or person supplying it at the end of the period for which the subscription was made, otherwise he may continue sending it and the subscriber will be responsible-unless it has been expressly agreed that the subscription should not continue beyond a definite term.

Nuisance.

DEFINITION, ETC.

Nuisance is defined as the "wrong done to a man by unlawfully disturbing him in the enjoyment of his property or in the exercise of a common right."

A common or public nuisance is one which endangers the lives, health, or convenience of the public; or hinders the public in the exercise of a right common to all: a public nuisance may be a private nuisance also, but before the party injured can sustain an action at law, or proceed in equity for an injunction, he must show that he has suffered special damage beyond that suffered by him in common with the public in general.

For instance, if a man erect a fence across a main road, this is a public nuisance, and anyone passing that way may cut it down; and if some of the boughs of his neighbour's tree are allowed to grow so as to overhang a man's land, he may, on the other party's refusal to remove such boughs, effect the removal himself as being a private nuisance.

NOXIOUS AND NOISY TRADES.

Buildings erected for the purpose of carrying on noisy or noxious (i.e., foul-smelling) trades-such as ore-reducing works, tanneries, chemical works, etc.-must be erected at such a dis

tance from dwelling-houses, public thoroughfares, etc., as not to occasion a nuisance to the occupiers and frequenters thereof. Otherwise the persons carrying on such trades will be liable to an action at law for damages or to a suit in equity for an injunction.

NUISANCES UNDER POLICE (TOWNS) ACTS.

Any of the following acts are punishable under the above statutes with a fine from not exceeding £1 to not exceeding £5, or imprisonment in default, viz.: throwing filth or rubbish into watercourses or sewers, washing clothes at public fountains or pumps; or, in any street or public place, beating carpets, breaking or exercising horses, throwing rubbish of any description on the carriage-way or foot-way; or killing or dressing any beast in such street, etc., or driving or placing upon the footways of any street, etc., any carriage, wheel, cask, etc., or wilfully, leading, driving, or riding any horse or other beast upon the footways, or placing goods or carriages upon the same, or keeping pigs in any building in or within forty yards of any street, etc., or not keeping the openings to cellars securely guarded; and a number of similar offences.

NUISANCES RELATING TO HIGHWAYS, RIVERS,

ETC.

Any person who places rubbish upon a main road or highway, or erects a fence across it, or digs trenches in it; or who pollutes a river by allowing filth to drain into it, or who builds a breakwater across a harbour mouth-even though it tends to assist the public right of navigation rather than to impede it-will be liable as for a nuisance.

REMEDIES FOR A NUISANCE.

Generally speaking, the party injured may himself remove the nuisance, and this is termed "abatement"; but in case of a public nuisance he may only exercise this right where it does him a special injury, and then only so far as is necessary to his due use of the highway, harbour, etc., obstructed. He may also bring an action, at law, but this remedy is only effectual where the injury can be completely compensated by damages. As a rule an injunction of the Equity Court is the most effective remedy, as a threatened nuisance can be restrained and the destruction of buildings, etc., be ordered; but, to obtain an injunction, the party must show that damages at law would, under the particular circumstances, be an inadequate remedy. And lastly, it may be mentioned that, where the nuisance is public, the offender is also liable to a criminal prosecution.