to finish.1 But if the landlord and not the occupier of premises has contracted to do the repairs, he will often be the person liable for a defective grating by which a passenger is injured.2 And in such cases a nuisance or active negligence is to be distinguished from a mere projection or an apparent encroachment on the highway, such as doorsteps above the level of the street; for these may be no part of the highway at all, though owing to their position incidentally a source of danger to those using it.3 And for a like reason, though a ditch run alongside a highway and be dangerous in the dark, there may be no obligation on anybody to fence off that ditch.4

Negligent acts on highways.—And with the same object in view, namely, the safety of passengers, the legislature has supplemented the deficiencies of the common law by enacting, that no persons shall sink a pit or shaft, or erect a steam-engine within twenty-five yards, nor erect a windmill within fifty yards, of a highway, unless these things are properly screened, so that they may not be dangerous to passengers, horses, and cattle. Locomotive steam-engines. are also subject to definite restrictions as to use for reason. So laying timber, stone, or rubbish to the injury or personal danger of any person travelling is a penal offence. And so is firing or throwing any fireworks on or into any highway or public place.

6

like

Occupiers of private roads.-The liability of the occupier of a private road, to those who travel on it, is the same as if it was part of his premises; for if he invite persons to use it as a highway, or means of access to his house or ship, the duty lies upon him to make it reasonably safe.o

1 Hadley

B. & S. 389.

Taylor, L. R., 1 C. P. 53. 2 Gandy v Jubber, 9 3 Fisher v Prowse, 2 B. & S. 770; Robbins v Jones, 15 C. B., N. S. 221. 4 Cornwall Metrop. Sewers, 10 Exch. 771. 5 5 & 6 Wil. IV. c. 50, § 70; 27 & 28 Vic. c. 75. The penalty is five pounds. Steam ploughing-machines are excepted subject to precautions, 28 & 29 Vic. c. 83, § 6; 34 & 35 Vic. c. 95. This enactinent includes a portable steam-engine on wheels.-Smith v Stokes, 4 B. & S. 84. 6 24 & 25 Vic. c. 70, § 13 ; 28 & 29 Vic. c. 83. 7 5 & 6 Wil. IV. c. 50, § 72. The penalty is forty shillings.

8 38 & 39 Vic. c. 17, § 80. The penalty is five pounds. To let off squibs, guns, or pistols within fifty feet of the centre of a highway, subjects to a penalty of forty shillings; 5 & 6 Wil. IV. c. 50, § 72.

9 Corby v Hill, 4 C. B., N. S. 556; Smith v London Docks, L. R.,♪ 3 C. P. 326.

Negligence in not repairing highways.—Another source of personal injuries is the defective state of repair in the highways on which the public travel. And here again a distinction may be noticed with regard to accidents and dangers caused by the nonrepair of highways, that is to say, the mere passive neglect of the surveyor or local board, or of whoever has the power and duty to repair them. Inasmuch as the proper remedy for nonrepair of a highway is an indictment against the parish, the vigilance of all is said to be engaged in enforcing this remedy. Hence if, through the neglect to repair, a hole exists, which gives rise to an accident or injury, the sufferer is not entitled to hold the surveyor or local board personally liable. And no one indeed is so, when no personal negligence is mixed up with it; for the legislature has deemed the remedy by indictment sufficient to protect all against any such contingency and to keep the parish functionary up to his duty. It is true that the wisdom of this rule is by no means self-evident, for if a parish can afford to bear the expense of repairing a highway, it might equally well afford to bear the expense of the usual risks, such as individuals in their own case incur of not repairing premises. But the only reason given by the courts for the rule is, that because the law has found what is assumed to be an appropriate machinery for keeping highways in repair, namely, an indictment, the parish ought not to be liable to anything resembling an action of negligence, for all are equally interested in enforcing the repairs. Hence, the parish by this reasoning not being liable, its servant, the surveyor, is also not liable, and nobody is liable; so that any person passing by chance, and breaking his leg, owing to the highway being in disrepair, has no remedy against

Statutory Occupiers.-Public commissioners or statutory trustees who occupy dangerous premises are liable, whatever be the mode of appropriating their income, in the same way as private occupiers, and have no larger or less liabilities in respect of accidents and dangers occurring on their premises or on highways which are vested in them.-Mersey Board v Gibbs, L. R., 1 H. L. C. 93; Coe v Wise, L. R., 1 Q. B. 711, and 5 B. & S. 440; Foreman v Canterbury, 41 L. J., Q B. 138.

1 Young v Davis, 7 H. & N. 760; 2 H. & C. 197; Gibson v Mayor of Preston, L. R., 5 Q B. 218; Mackinnon v Penson, 8 Exch. 319; Parsons St. Matthew's, L. R., 3 C. P. 62.

anyone. Notwithstanding this rule, however, if a grating or other part of a highway belongs in property to a local board or commissioners, who stand in a different position from the parish, then these are liable as if they were the owners of premises adjoining the highway, and such premises were not kept in proper repair.1 And the surveyor may make himself liable for negligence during the repairs, if he act himself as the contractor, and is personally negligent."

Negligence in keeping vicious dogs and animals.-Another usual source of danger to the person arises from the practice of keeping animals, wild and tame, but especially dogs. There is nothing deemed positively illegal in keeping any animal, and some of the domestic animals are almost part of many a common household. In such cases the law does not go the length of treating the animal as a kind of servant or agent of its owner, so as to make him responsible for its doings as if it and he were identical, and had one mind and purpose. The utmost length the law goes is to give a remedy for injuries done by the animal, when the owner has been guilty of any negligence in keeping it, and which negligence may fairly be deemed the cause of such injury. It is necessary however on this subject to make one or two distinctions, more especially as the popular idea. as to responsibility differs widely from that which the law defines.

There is a distinction in the outset between wild or savage animals and those which are tame and mild in their general temper. The former are such as lions, bears, serpents, monkeys, though these are often capable of being tamed to a certain extent. The latter class includes all domestic animals, dogs, cats, and cattle. And the distinction consists in this, that in the former case a savage or mischievous temper is presumed to be known to their owner and to all men as a usual accompaniment of many wild animals; and hence a positive duty is cast on the owner to protect the public against the mischief resulting from such animal being at large. In the latter case no mischievous disposition is presumed; but if any peculiar tendency to mischief or injury is found to belong to the animal, and is made known to the owner as a fact, then a like positive duty is

1 White v Hindley Local Board, 44 L. J., Q. B. 114. 2 Pendlebury v Greenhalgh, 45 L. J., Q. B., H. L. 3.

cast on him to guard the public against injury from this proclivity.

The general rule then is, that wild animals of a vicious disposition must be kept by the owner in such a place as not to allow them the opportunity of giving vent to their temper and injuring mankind; at least if he fail to do this, he must bear the entire risk. Indeed such risk may approach the risk of murder. If the owner wilfully let loose a wild beast, which kills a human being, he will be guilty of murder: if he negligently allow the beast to escape, he may in some cases be guilty of manslaughter. And if the animal do injury to mankind, an action will lie against the owner, and it is not necessary to prove that the owner knew of the injurious disposition of the beast, for that is common knowledge; nor that he kept it negligently, for whether he did so or not, he is assumed to take the risk. In the action for injury caused by a savage or a wild animal, the ground therefore is, that the owner wrongfully kept the animal with knowledge of its propensity, and that it injured the plaintiff. And it is not necessary to allege that it was kept negligently, it being at once presumed that he kept the animal at his own peril.

But where the injury is done by a tame animal, that is to say, one of a class which is not usually vicious, but which happens, notwithstanding, to have a vicious propensity known to its owner, and is kept negligently, the ground of liability is the same as in the wild and savage animals, except that the owner's knowledge of the vicious propensity having been acquired by such animal must be alleged and proved against him. And when all that can be proved is, that a servant of the owner or member of his family was cognisant of the vicious propensity, then the owner will not be bound by his servant's or relative's knowledge, unless the latter had the charge of the dog, or such charge was fairly included in part of the servant's duties at the time. This knowledge may, however, very well be inferred from the circumstance that the owner had

1 Jenkins Turner, 1 L. Raym 110. 2 May Burdett, 9 Q. B. 101. 3 Ibid.; Cox v Burbridge, 13 C. B., N. S. 430. 4 Stiles v Cardiff Co., 33 L. J., Q. B. 310; Gladman v Johnson, 36 L. J., C. P. 153; Applebee v Percy, 43 L. J., C. P. 365; Baldwin v Casella, 41 L. J. Exch. 167.

warned persons against the dog, or knew that it had before attempted to bite people. And it is always a good defence that the dog does not belong to the occupier of the premises where the mischief was done, though it may have haunted such premises.3

But though the person injured by a dog has a remedy against the owner in the above circumstances, an exception exists where the person injured was a trespasser, or where the dog was kept in the owner's own premises during the night to protect them. On the other hand, it is no ground of defence to an action for injury inflicted that the dog was kept in premises during the day if it was kept in such a position that it could attack a person who calls at the premises on lawful business, whether the business is that of the owner or of the visitor.5 Nor does the owner escape liability for keeping a savage dog in such a situation by merely putting up a notice to "beware of the dog," if the visitor either did not see the dog or could not read; and it is always extremely difficult to prove special knowledge of this kind conveyed to the visitor.

Dangerous and mad dogs. But the law is not satisfied with guarding mankind by compelling owners in some cases to pay damages. Even though a dog has not actually bitten or injured a human being, yet the legislature, in order still further to protect mankind against the probability of such attacks, has, in case of a dog which is dangerous and not kept under proper control, provided those facts have been brought to the notice of justices and of the owner, imposed on such owner a penalty of twenty shillings for every day he fails so to keep it under control. Or if the owner has already so failed, the justices may in their discretion themselves order the dog to be

1

Judge v Cox, 1 Stark. 285.

2 Worth Gilling, L. R., 2 C. P. 1. 3 Smith v Great Eastern R. Co., L. R., 2 C. P. 4. The necessity of knowledge in the owner of a domestic animal's vicious propensity as an ingredient in the right of action is dispensed with by statute in the case of dogs worrying sheep and cattle, 28 & 29 Vic. c. 60. (This belongs to title, " Security of Property;") but the rule continues in force as to injuries done to mankind.

4 Brook Copeland, 1 Esp. 302. 5 Larch v Blackburn, 4 C. & P. 300; M. & M. 505: Curtis v Mills, 5 C. & P. 489; Charlwood v Greig, 3 C. & K. 48. 634 & 35 Vic. c. 56, § 2.