1869 STRINGER บ. speculative transaction. It is true that in the event, which since the commencement of this action has happened, of the judgment ENGLISH, &C. being affirmed, it would be quite immaterial for how much the INSURANCE CO. security was given; but that could not be known at the time when the assured were called upon to determine whether they would give security. And we find that in fact an uninsured owner of part of the cargo, a Mr. Simpson, who had nobody's interest to consider but his own, did, after considering the question, decline either to deposit money or to give bail for his goods, and allowed them to be sold; which, though not conclusive, is strong evidence as to what course a prudent man would take. We come, therefore, to the conclusion of fact, that the assured could not by any means, which they could reasonably be called on to adopt, have prevented the sale by the American Prize Court, which at once put an end to all possibility of having the goods restored in specie, and consequently entitled the assured to come upon their insurers for a total loss. Even then the assured were not bound to do so. If they had thought that it was more for their interest still to claim the proceeds of the sale in the hands of the American Court as their money, and come on the underwriters only for the partial loss, they might do so. But it is clear as a matter of fact that they elected to come upon the insurers for an indemnity for a total loss, and that by so doing the insurers when they have indemnified them, will be entitled to be subrogated for them, and get what they can out of the hands of the Americans for their own benefit: see Randal v. Cockran (1); Mason v. Sainsbury (2); Yates v. Whyte (3); Wright v. Morley (4); see also 19 & 20 Vict. c. 97, s. 5. Whether this will ultimately turn out advantageous to the underwriters or not is a matter which concerns the parties only. It only remains to add that the interest should be at the rate of per cent. from the 25th of May, 1863, the date of the sale, to the day on which judgment is given. 5 Judgment for the plaintiffs. Attorneys for plaintiffs: Oliverson, Peachey, Denby, & Peachey. Attorneys for defendants: Cotterill & Sons. (1) 1 Ves. Sen. 98. (2) 3 Doug. 60. (3) 4 Bing. N. C. 272. (4) 11 Ves. at p. 22. WELFARE v. THE LONDON AND BRIGHTON RAILWAY COMPANY. Negligence-Railway Company-Onus probandi. In an action for negligence against a railway company, the plaintiff proved that he went to their station for the purpose of travelling by their railway, and made some inquiries respecting the departure of trains, and was directed by a porter of the defendants to look at a time table suspended on a wall under a portico of the station. While there, a plank and a roll of zinc fell through a hole in the roof upon the plaintiff and injured him; and at the same time a man was seen on the roof of the portico. The judge nonsuited the plaintiff : : Held, that there was no evidence that would have justified the jury in finding the defendants were guilty of negligence, and that the nonsuit was right. DECLARATION, that the defendants were carriers of passengers from London to Croydon on a railway, and used a certain station at London Bridge for the accommodation of their passengers, and the station was then in the possession and under the management of the defendants; and that the plaintiff, in order to become a passenger on the defendants' railway by the defendants' invitation, was about to enter the station by the doorway over which there was a covering, and a wood and iron roof forming part of the station, and in the possession of and used by the defendants, which it was necessary for the plaintiff in order to become such passenger to pass under: nevertheless, by the negligence of the defendants, the covering and wood and iron roof was then in a dangerous condition and unfit for persons to pass under, by reason whereof, and by the negligence of the defendants, a large piece of wood fell through the covering and wood and iron roof upon the plaintiff as he was about to enter the station, and injured him. Pleas: 1. Not guilty. 2. That the plaintiff was not about to enter into the station by the invitation of the defendants for the purposes mentioned in the declaration. 3. That the covering and wood and ironwork roof did not form part of the station, nor was it in the possession of or used by the defendants. Issues thereon. At the trial before Blackburn, J., at the sittings in Middlesex in Michaelmas Term, 1868, the plaintiff proved that he went to the London Bridge station of the defendants for the purpose of going to Croydon, and wishing to ascertain the time of the departure of 1869 June 3. 1869 WELFARE v. BRIGHTON the train, applied for information to one of the company's servants, a porter inside the station. The porter referred the plaintiff to a time bill which was pasted against the wall of the station outside RAILWAY CO. underneath the portico, to which place the plaintiff, under the direction of the porter, went, and while he was looking at the time bill a plank and a roll of zinc suddenly fell down from the top of the portico, and struck the plaintiff on the back of his neck. The plaintiff received severe injuries from the blow. On cross-examination it was elicited that the legs of a man appeared through the hole in the roof from which the plank and zinc had fallen. The learned judge nonsuited the plaintiff on the ground that there was no evidence of negligence on the part of the defendants. A rule was obtained for a new trial on the ground that there was evidence of negligence to go to the jury. Huddleston, Q.C., and Lopes, shewed cause. The nonsuit was right. There was no evidence to go to the jury of negligence on the part of the defendants. A mere scintilla of evidence is not sufficient: Cotton v. Wood. (1) Neither is the mere happening of an accident without more necessarily primâ facie evidence of negligence: Hammack v. White. (2) Here, beyond the fact that a plank and a roll of zinc fell upon the plaintiff while he was on the defendants' premises, there is no evidence of negligence. The plaintiff was bound to adduce some affirmative evidence of negligence. The cases of Byrne v. Boadle (3), and Scott v. London Dock Company (4), are distinguishable. In Byrne v. Boadle (3), a barrel of flour fell from the upper window of the house of a flour dealer and injured the plaintiff. That was held to be primâ facie evidence of negligence, on the ground that in carrying on his trade the defendant would have to move barrels of flour, and the inference to be drawn from a barrel of flour falling from a window of the warehouse was that a servant of the defendant had been guilty of negligence in moving it. In Scott v. London Dock Company (4), the majority of the Court, who held that the action would lie for an injury to the plaintiff by bags of sugar falling on him from a crane (1) 8 C. B. (N.S.) 568; 29 L. J. (C.P.) 333. (2) 11 C. B. (N.S.) 588; 31 L. J. (C.P.) 129. 13. (3) 2 H. & C. 722; 33 L. J. (Ex.) (4) 3 H. & C. 596; 34 L. J. (Ex.) 220. 1869 WELFARE v. BRIGHTON fixed over a doorway under which he was passing, rested their judgment on the ground that, as the accident was one which did not, in the ordinary course of things, happen in the use of machinery, it afforded reasonable evidence of negligence in the absence of Railway Co. any explanation by the defendants. Here the man would not have been on the roof in the ordinary course of the defendants' business; neither can it be assumed that he was the servant of the company. Primâ facie he would be the servant of the contractor employed to repair the roof. C. Wood, in support of the rule. The plaintiff made out a case which the defendants were bound to answer. The plaintiff was on the defendants' premises at their invitation, and while there he was injured by a plank and roll of zinc falling on him from the roof of the premises. It is the defendants' duty to keep that roof in a sound condition so that no injury should happen to a person standing under it. The state of the roof, whose servant the man on the roof was, and the cause of the accident, are all matters within the knowledge of the defendants, and can and ought to be explained by them. The plaintiff set up a primâ facie case which the defendants could have rebutted. The observation of Bramwell, B., in Byrne v. Boadle (1) is particularly applicable to this case. He says, "Look at this case in a reasonable way. The injury is done to the plaintiff, but he has no means of knowing how the defendant has all those means and does not think fit to tell the jury." Byrne v. Boadle (2) and Scott v. London Dock Company (3) were approved of in Briggs v. Oliver. (4) Pickard v. Smith (5) is precisely in point. That case is an authority for saying that, even if the man on the roof was the servant of a contractor and not of the defendants, the defendants would nevertheless be liable. If the roof was under repair, it was the duty of the defendants to have cautioned the plaintiff, and if they were negligent in this respect they are responsible. It was their duty to have the station in a proper state of repair, and where a duty is cast on a person to do an act, he cannot relieve himself from liability by employing a contractor: Gray v. Pullen. (6) (1) 33 L. J. (Ex.) at p. 15. (2) 2 H. & C. 722; 33 L. J. (Ex.)13. (3) 3 H. & C. 596; 34 L. J. (Ex.) 220. (4) 35 L. J. (Ex.) 163. (5) 10 C. B. (N.S.) 470. (6) 5 B. & S. 970; 34 L. J. (Q.B.) 265. 1869 WELFARE v. BRIGHTON COCKBURN, C.J. I think this rule must be discharged. If the question turned upon whether there had been any negligence on the part of the man carrying the zinc, who, perhaps, may have RAILWAY CO. trodden upon a plank which gave way under him, and which caused the plank and zinc to fall, it would be important to ascertain whether the man was the servant of the company or merely the servant of some contractor whom the company employed; because if the man was not the servant of the company, but of a contractor, the company would not be liable. If it were necessary to determine that question, we should have to consider whether the case was improperly withdrawn from the jury on the ground that the plaintiff offered no evidence to shew that this person was the servant of the company. I agree that where a thing is being done upon the premises of an individual or a company in the ordinary course of business, it would fairly be presumed that the thing was being done by a person in the employment of the principal for whose benefit the thing was being done; but, in the case of work of this description, it seems to me that that principle would not apply, because it is a matter of universal knowledge and experience that in a great city like this persons do not employ their own servants to do repairs to the roofs of their houses or buildings: they employ a builder whose particular business it is to do it. That being a matter of universal practice, and of universal and common knowledge, I think this is a circumstance which the judge ought to take into account in determining whether there is evidence to go to the jury or not; but I do not think it is necessary to decide this case on this particular point. The only act of negligence that can be suggested, as I understand, is that the company allowed a person to go on this roof when it was in an insecure condition or not sufficiently strong to support his weight, so that the plank gave way under the weight of the man passing across it, and that as a consequence the plank fell down and injured the plaintiff, who was lawfully and by invitation of the company at their station. In order to make out negligence on the part of the company, and make the company liable for allowing that person to go on the roof, the plaintiff must shew either that the company knew or had the means of knowing, or were bound to take steps to know, the |
