Burgess v Gray
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1845 |
| Date | 05 May 1845 |
| Court | Court of Common Pleas |
English Reports Citation: 135 E.R. 667
IN THE COURT OF COMMON PLEAS.
S. C. 14 L. J. C. P. 184. Referred to, Barker v. Harbert, [1911] 2 K. B. 639.
[578] burgess v. gray. May 5, 1845. [S. C. 14 L. J. C. P. 184. Eeferred to, Barker v. Herbert, [1911] 2 K. B. 639.] B., the owner and occupier of premises adjoining the highway, employed C. to make a drain therefrom to communicate with the common sewer. In the performance of this work, the workmen employed by C. placed gravel on the highway; in consequence of which A., in driving along the road, sustained personal injury. Before the accident the dangerous position of the heap was pointed out to B., who promised to remove it. C. had the sole management of the work, and employed and paid D. to cart away part of the rubbish, at a certain price per load, and had charged A. in his bill with the sum so paid :-Held, that B. was liable to A., in case. Case. The declaration stated that the defendant, before and at the time of committing the grievance thereinafter mentioned, was possessed (a)1 of certain houses, &c. situate and being near to and adjoining a certain street and highway in the county of Middlesex; which street and highway, at the time of the committing of the said grievance, was, and from thence had been, and still was, a common public street and highway for all persons to go, return, pass, and repass on foot, anduby and^with horses and carriages, at all times of the year, at their free will and pleasure : yet the defendant, well knowing the premises, whilst he was so possessed of the said houses, &c., on, &c. aforesaid, wrongfully and unjustly put and placed, and caused to be put and placed, in a large heap, divers large quantities of earth, gravel, materials, dirt, and rubbish in and upon the said highway, and near to the said houses, &c., and wrongfully and injuriously kept and continued the same therein and thereon in such heap and mound, until the happening of the injury thereinafter mentioned, and thereby and therewith greatly obstructed the said highway; by means of which premises, afterwards, to wit, on, &c. aforesaid, a certain carriage, to wit, a chaise-cart, of the plaintiff, of great value, to wit, of the value of 1501. with a horse then drawing the same, in which the plaintiff was then lawfully riding and driving in and along the [579] said highway, was driven upon and against the said heap, and the plaintiff was then violently thrown from and out of his said carriage to and upon the ground there; that the said horse was, by means of the premises, then greatly scared and frightened, and thereby then ran away with, and overturned, the said carriage of the plaintiff, and the same was thereby then broken to pieces, damaged, and destroyed; and that by means of such several premises one of the legs of the plaintiff was fractured, and he became and was greatly hurt, bruised, and wounded, &c., and so continued for a long time, to wit, from thence hitherto, during all which time the plaintiff thereby suffered and underwent great pain, and was prevented from attending to, or working at his trade of a paper-stainer, and from performing and transacting his other lawful and necessary affairs and business by him to be performed and transacted, and thereby lost great gains which he might, and otherwise would, have acquired; that the plaintiff, by means of the premises, became and was and still is greatly and permanently injured in his health, and lamed, and also, by means of the premises, the plaintiff was obliged to, and did necessarily, expend divers moneys and incur divers debts, in the whole amounting to a large sum, to wit, 1001., in and about endeavouring to be cured of the said wounds, &c., so occasioned as aforesaid, and in and about repairing the damage done to his said carriage as aforesaid; and that the said carriage became and was, by means of the premises, for a long time, to wit, from thence hitherto, of no use or value to the plaintiff, and was and is, by means of the premises, greatly depreciated in value. The defendant pleaded, not guilty (a)2. (a,)1 This allegation is not traversed. (a)2 By this plea as well the defendant's possession of the houses, as all other matters of inducement, were admitted. 668 BURGESS V. GRAY 1 C. B. 580. The cause -was tried before Tindal, C. J., at the sit-[580]-tings at Westminster after Michaelmas term last. The facts that appeared in evidence were as follow:- The defendant was a proprietor of newly erected houses in the Cambridge Heath road, near to the Mile End turnpike; which, however, had been built for him by one Palmer, and were in the occupation of his tenants. In forming a drain from some premises (also belonging to the defendant) at the back of the new houses to the common sewer under the road, Palmer, by his servants, caused a quantity of earth and gravel to be deposited on the left-hand side of the road leading to London. The * drain being finished, Palmer employed a person to carry away the earth and rubbish; but the party so employed left a portion of it on the highway ; and the plaintiff and a friend, on their way to London, on the evening of Sunday, the 28th of July last, in a chaise-cart belonging to the former, ran upon the heap so left on the road, and the plaintiff was thrown from the cart, and sustained the injury complained of in the declaration. The only evidence tending to shew that the defendant had personally interfered in the matter,-besides the fact of his having applied to the commissioners for leave to break into the sewer,-was that of Barker a policeman, who was called as a witness on the part of the plaintiff, and who stated that, upon observing the heap left on the road side opposite the defendant's premises, he called the defendant's attention to it, and told him it must be taken away; whereupon the defendant said he would remove it as soon as he could; and that, after the accident had happened, he told the defendant that it was occasioned by the rubbish left upon the road, upon which the defendant said he had several witnesses to prove that it occurred through the plaintiff's own carelessness. On the part of the defendant it was shewn that the heap had been considerably increased by oyster-[581]-shells, &c., deposited thereon by strangers. And Palmer, the builder, stated that he had the entire control and sole management of the work ; that he employed and paid the person who carted away about three loads of the rubbish, at a certain price per load; and that the sum so paid had been charged by him...
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