common a case and being carried so far, that the legislature has been driven to constitute furious driving a distinct offence, as it is so apt to end in serious and irreparable injuries to bystanders and passengers. Hale said killing by furious driving was a kind of manslaughter, for though there is an absence of malice, yet the recklessness and want of care are very conspicuous. While, therefore, the numerous accidents that arise in the course of driving carriages on a highway give rise most frequently only to actions for damages, yet where some flagrant recklessness of the driver occasions injuries, this is properly treated as a criminal offence, seeing that every use of a highway entails as a consequence a reasonable care for the lives and properties of others, who may with equal rights be using the same highway at the same time.

Accordingly it is enacted that whosoever, having the charge of any carriage or vehicle, shall by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty of a misdemeanour; and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years with or without hard labour.1 And if the driver or rider shall by negligence or wilful misbehaviour cause hurt or damage to any person, or ride furiously, so as to endanger life or limb of passenger, he shall, in addition to any civil action, be fined five pounds.2

Negligence in carrying passengers in ships.—As passengers in a railway or land conveyance have a remedy for carelessness in driving which leads to personal injury, so those in ships have similar remedies. But the peculiar situation of a passenger of a ship somewhat varies the rules of law, which usually guard others from danger. As ships require a pilot in certain places, and the captains are compelled by law to employ one, it is reasonable that when the ship is under the pilot's charge, and such pilot is negligent, and thereby causes injury to a passenger, the owner of the ship should be exempted from all responsibility to such passenger, unless where some of the ship's crew, in their respective departments, were also negligent,

1 24 & 25 Vic. c. 100, § 35. 2 5 & 6 Wil. IV. c. 50, § 78.—-Furious riding is here included also; Williams v Evans, 40 J. P., 358.

and jointly contributed to the injury. The pilot is not deemed a fellow-servant of the crew; and hence, if he is himself injured by the negligence of the crew, he can sue the owners for negligence.2 Where a passenger is in a ship which comes into collision with another ship, and there is negligence on board of both, the passenger cannot sue the owners of the other vessel, but must confine his remedy to the owner of his own vessel, the rule being the same as in case of rival coaches racing3 And when numbers of passengers are injured, and they themselves, or their representatives, claim damages, the liability of the owners is subject to some limits." Moreover, a great body of regulations is contained in the Merchant Shipping Acts, the beginning and end of which is nothing else but the ultimate security of human life, to which is added also some regard to the safety of property. But as these are remote from the immediate object of personal security of the individual passenger, a more detailed account of such regulations belongs properly to another division of the law, entitled "The Security of Contract."

Risk of inviting persons to enter premises.-Persons entering premises and receiving injury are sometimes entitled to redress. Here a distinction arises between

guests and business visitors. It is the duty of the occupier of private premises, to which the public are invited to resort, or to which they may resort on lawful business or pleasure, to keep such premises in a state of repair sufficient to prevent injury being received. But a clear distinction must be made between trespassers, or mere licensees, or guests, or servants of the occupier on the one hand, and those who go upon the premises by invitation in course of business that concerns such occupier on the other hand. In the former case the trespasser, or guest, or servant, is supposed to take care of himself, and run all risks of the place; in the latter case the occupier is bound to take care of the business visitor and caution him of every danger not patent to the senses.5 A person also who is allowed to take a short cut through dangerous

1 17 & 18 Vic. c. 104, § 388; The Iona, L. R., 1 P. C. 426; The Calabar, L. R., 2 P. C. 238. 2 Smith v Steele, 44 L. J., Q. B. 60. 3 See ante p. 253. 4 17 & 18 Vic. c. 104, § 514. 5 Southcote v Stanley, 1 H. & N. 247.

premises, the danger of which is visible, has no remedy if he is injured by that danger, for he is in the class of licensees, and shares the same risks as guests and servants.1 When, however, one goes upon another's premises by invitation in course of the business of the occupier, the latter is deemed bound by law to take reasonable care, that the invited party shall not fall into a trap or a dangerous place without being warned. Thus it is with a gasfitter ordered to do repairs in a sugar refinery and falling through a shaft.2 So where a passenger enters a railway station or ship to start on a journey, and falls through a trap-door.3 And so where a railway guard, looking out of the window, has his head shattered by a bridge made inconveniently narrow, on a railway which his company lawfully use.*

Negligence in keeping of premises near highway.—Another class of cases in which negligence is implied or easily presumed is where property adjoining a highway is in a state of dangerous disrepair, which gives rise to an injury to a passenger. This is founded on the principle that all persons, who have premises adjoining a highway, are bound in some way to protect these premises, so that those who are lawfully passing along the highway may not fall into a trap. The object of the rule is to secure the public right of passage along such highways, so that in pursuit of their occupations people may not be suddenly interrupted by some cause against which ordinary care cannot guard them. Such a rule may be considered first as regards land and rural situations; and secondly as regards occupiers of houses in streets and crowded places, the latter state of facts being somewhat more complicated, though the principle is not different.

Negligence near highways in rural places.—Where a highway is on a level with the adjoining lands, though there is no obligation on the owner to fence the side of the highway, yet whenever there is any excavation adjacent to the highway artificially made, whether in the form of a ditch or a pit, then the duty arises on the owner to fence this excavation. The reason is, that the public have a right

1 Bolch v Smith, 7 H. & N. 736 ; Wilkinson v Fairrie, 1 H. & C. 633. 2 Indermaur v Dames, L. R., 1 C. P. 274; 2 C. P. 311. 3 John v Bacon, L. R., 5 C. P. 437; Pickard v Smith, 10 C. B., N. S. 470. 4 Graham v N. E. R. Co., 18 C. B., N. S. 229.

to pass along the highway at all hours of the day and night, and that, whether they are blind or lame, are careful or less careful; so that, unless the adjacent land be in such state that they can use the highway without the risk of stumbling and injuring themselves, such user would only become a snare to them. But this obligation of the owner of the adjacent land extends no further than the side of the highway, so that when the excavation is some distance from the highway, this obligation ceases to govern him. Thus if a passenger lawfully using the highway fall into an excavation substantially adjoining, and which is not fenced, he may sue the occupier of such land; whereas if he had strayed from the highway and become a trespasser, and then fallen into a pit at some distance, he would have no similar remedy, for it is impossible to undertake the care of trespassers. And the question is thus often brought round to this, what is meant by an excavation "substantially adjoining" the highway; and this is a question of law and partly of fact, which the judge or court can decide for itself." And because passengers so often stray at a distance from highways, and suffer damage which has no redress for the above reasons, the foresight of the legislature has been shown in making it a punishable offence for the owners of abandoned mines not to fence securely old shafts, which are the frequent cause of death to unsuspecting trespassers and travellers. 3

Negligence in premises adjoining streets.-The safety of passengers in streets and crowded places is still more exacting on adjoining occupiers, owing to the greater variety of dangers. The civil law indeed made the occupier of a house responsible for damage caused to passengers by anything thrown out of the upper part of the house by an inmate, though the occupier had no knowledge or concern in it.4 But we are more critical and discriminating, and require to know somewhat more of the circumstances, before we attach so sweeping a liability to any

1 Hardcastle v S. Yorkshire R. Co., 4 H. & N. 67; Barnes v. Ward, 9 C. B. 392; Hounsell v Smith, 7 C. B., N. S. 731. 2 Binks v S. Yorkshire R. Co., 3 B. & S. 244. In that case 14 feet intervened, and the court held that the excavation did not "substantially adjoin.

3 35 & 36 Vic. c. 76, § 42; 35 & 36 Vic. c. 77, § 13. 4 Pand., b. 9, 413; Just. Inst. 4, 5, 1; dejecti effusive-actio. ̧

man; and indeed, the ancients having no juries to solve every complication of negligence, their courts were obliged to lay down hard and fast lines of evidence which do not bear examination in modern times. In our law a case occurred where a ladder used in an upper story slipped and broke the window, and a piece of glass fell and hit a man employed in the street below, and the court held that there was no primâ facie evidence of negligence.1 Nevertheless those occupiers of houses and premises adjoining a street are very strictly looked after, and bound by the law to take positive precautions against the likelihood of danger to passers-by from anything met with upon and connected with the premises. Shutters and swing-doors and cellar-flaps must be secured or safely bolted, and chimney-pots firmly fixed. Thus where a barrel of flour falls from an upper window of a store, this is deemed prima facie due to some act of negligence in the occupier or his servants, and unless clearly explained away, and the responsibility shifted to some other shoulders, will inevitably bring home liability to the occupier.2 And even where a cellar door was so loosely fastened that children were naturally tempted to play with and upset it, and so bring injury on strangers passing, the occupier has been held liable for this thoughtless but childish act. And so where a lamp projecting from a house fell on a passenger owing to some negligence in the person, however competent, who last repaired it, the occupier of the premises was held liable. And a new occupier coming to premises adjoining a street does not escape liability by saying, that he has merely used the premises as he found them, for the liability is in some sense indelible, being imposed on the occupier for the time being for the protection of the public passing by, and to whose safety changes in ownership and occupation are altogether irrelevant.5 And even a tenant at will is subject to the same liability. And the nominal tenant is liable, though he has not yet entered, but has merely left the premises in the hands of a builder

1 Higgs v Meynard, H. & R., 581. 2 Byrne v Boodle, 2 H. & C., 722. 3 Daniels v Potter, 4 C. & P. 262. 4 Tarry v Ashton, 45 L. J., Q. B. 260, 5 Barnes v Ward, 9 C. B. 420; Coupland v Hurdingham, 3 Camp. 398; Pickard v Smith, 10 C. B., N. S. 470. 6 R. v Watts, 1 Salk. 357.