Cox v Burbridge

1 3 72 COX V. BUEBIDGE r Cox v. burbidge Jan. 14th, 1863. . [S. C. 32 L. J. C. P. 89; 9 Jur. N. S. 970; 11 W. R. 435. See MtrLr ' v.' Pylefifds, 1866-68, L. R. 1 Ex. 281 ; L. R. 3 H. L. 330; Child v. Hearn, 1874, L. R. 9 Ex. 17&, Referred to, Panting v. Noakes, [1894] 2 Q. B. 290. Discussed, Brady v. Warren, [1900] 2 I. R. 646; Sullivan v. CWerZ, [1904] 2 I. R. 321. See White v. Steqdmaii, [1913] 3 K. B. 347 ; Bales v. afey, [1913] 3 K. B. 351.] The defendant's lorse, being on a highway, kicked the plaintiff, a child who was playing there. There was no evidence to shew how the horse came on the spot, or what induced him to kick the child, or that he was accustomed to kick: - Held, no evidence from which a jury would be justified in inferring that the defendant had been guilty of actionable negligence. This was an action for negligence. The plaintiff, an infant, sued by his next fri$nd. The declaration stated that the defendant was possessed of a horse, and that he took ao little and eueh bad care of the said horse, and so carelessly, negligently, and improperly kept the same, that, by and through the mere carelessness, negligence, and wrongful and improper conduct of the defendant in that behalf, the said horse kicked the plaintiff, tten lawfully being on a certain highway, and by means of the premises the plaintiff became and was and is greatly and permanently injured, &e. Plea, not guilty. The cause was tried before Willes, J., at the last sitting at Westminster in Michaelmas Term last. The facts which appeared in evidence were as follows : - On the 1 (th of June, 1861, a horse belonging to the defendant was grazing on a newly-made road which led to some houses, and which had for some time been used as a road, but not adopted by the parish. The [431] plaintiff, a little boy about five years of aga, was playing in the road, when the horse, which was on the foot-path, struck out and Mcked him in the face, injuring him very severely. There was no evidence to shew how the horse got to the spot, or that the defendant knew he was there, or that tbe animal was at all vicious, or that the child had done anything to irritate it. Under these circumstances, it was submitted on the part of the defendant that t^ere was no case to go to the jury. The learned judge, however, did not like to withdraw the case ; but he reserved the question of liability : and the jury returned a venjiet for the plaintiff or 201. Siaw, in Michaelmas Term last, accordingly obtained a rule nisi to enter a nonsuit. V. Wilh'ams, now shewed cause. The fact of the horse being loose on a highway {wher.e he could not lawfully be, - 6 & 7 W. 4, c. 50, s. 74) unattended, is prima facie eTidepce of negligence and want of proper care on the part of his owner. The horse was wrongfully where he was : it was a common nuisance, unless he was there using the road for passage : whereas, the child was lawfully there. This was enough to call upon the defendant for an answer. [Willes, J. Suppose I have a dog, and he is out; on the street, and there bites a child who pulls his tail or his ear, - am I liable to an;action, without more]] In Mason v. Keeling, 1 Ld Raym. 606, Holt, C. J., and Turtqn, J., say: "There is a great difference between horses and oxen, in which a man has a valuable property, and which are not so familiar to mankind, and dogs : the former the owner ought to confine, and take all reasonable caution that they do no mischief, otherwise an ac-[432]-tion will lie against him : but otherwise of dogs, before he has notice of some mischievous quality." In Illidye v. Goodwin, 5 C. & P. 190, jt was held that, if a horse and cart are left standing in the street, without any p*rsott to wateh them, the owner is liable for any damage done by them, though it be occasioned by the act of a passer by, in striking the horse. Tindal, C. J., there says :_ "If aimari chaoses to leave a cart standing in the street, he must take the risk oi any miactief that may be done." So, here, it is submitted, the defendant having chosen to permit his horse to be upon a highway unattended, he must take the risk ol any mischief that may be done by him. In Lynch v. Nunlin, 1 Q. B. 29, 4 P. & D. 672, the defendant negligently left his horse and cart unattended in the street : the jjainiiff, a child seven years old, got upon the...