Jane Robbins, Administratrix of Edwin James Robbins, Deceased v Jones
| Jurisdiction | England & Wales |
| Judgment Date | 16 November 1863 |
| Date | 16 November 1863 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 768
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 33 L. J. C. P. 1; 10 Jur. N. S. 239; 12 W. R. 248. Adopted, Cavalier v. Pope, [1906] A. C. 430.
|J221] ''JANE bobbins, Administratrix of Edwin James Robbins, Deceased v. jones. ' Nov. 16th, 1863. PS. C. 33 L. J. C. P. 1 ; 10 Jur. N. S. 239 ; 12 W. K. 248. Adopted, (Jamlier v. Pope, \ [1906J A. C. 430.] If a highwajp is dedicated to the public with a dangerous obstruction upon it, such as would have been a nuisance if placed upon an antieut way, - as, a. flight of steps, or a projecting flap, - no action can be maintained against the person dedicating it for 15 C. B. (N. B.)22S. ROBBINS V. JONES 769 an injury caused thereby.-Nor will an action lie against the owner of a. house having a covered area adjoining a public footway, which area was in existence before and at the time of the dedication of the highway, and was dedicated to the public before the last General Highway Act, for an injury to an individual from the giving way of the covering of the area in consequence of the wear and tear occasioned by public user.-In 1830, houses were erected ou land adjoining a new road constructed at a high level as an approach to a new bridge across the Thames. Between these houses and this road was a space which was covered over (as a means of access to the houses) by a flagging in which were gratings to let light and air to the lower part of the buildings, which formed separate tenements, the entrance to which was upon the lower level at the rear. The space so covered had become, by dedication prior to the General Highway Act, 5 & 6 W. 4, c. 50, a part of the public footway, and was used as such by the public. In 186'2, in consequence of a large number of persons congregating upon the spot, the flagging and grating in front of one of the houses (having become weakened by user) gave way, and several persons were precipitated into the area below (a depth of about thirty feet), and one of them was killed :-Held,-in an action by the widow of the deceased, under Lord Campbell's Act, 9 & 10 Viet. c. 9U,--that, there being under the circumstances no legal liability on the part of the lessee of the houses to keep the surface of this way in repair, the action was not maintainable,-the gulph at the side of the causeway being the result of the road being raised by the makers of it, not by the land at the side being excavated by the proprietors of it: and that the artificial character of the flagging and grating did not make it more or less a way to be repaired by the parish.-A landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents happening in consequence during the term. This was an action brought by the plaintiff', as administratrix of her deceased husband, to recover damages under Lord Campbell's Act, 9 & 10 Viet. c. 93, for an accident resulting in his death through the alleged negligent and improper conduct of the defendant, iii wrongfully permitting a certain area adjoining and under a certain public footway, the property of the defendant, to be and continue in a dangerous and unsafe condition. The declaration stated that the defendant was owner and possessed of certain houses and premises and a certain area in front of and parcel of the same immediately adjoining and under a certain common and public footway, and the said area was covered and protected with and by an iron grating, and it was then the duty of the defendant at all times to keep and maintain the said area and grating in good and sufficient repair, so that persons passitig over and along the [222] said footway might not be in clanger of falling into the said area; yet that the defendant wrongfully permitted the same to be and continue, and the same were and continued, in a dilapidated, decayed, dangerous, and unsafe state and condition, to the danger of persons lawfully passing over and along the said common and public footway; and the defendant, well knowing the premises, demised and let his said houses and buildings and the said area and grating in the same state and condition to certain other persons, to wit, Smith Allen Jeffs and Augustus Jeffs, and wrongfully suffered and permitted the said area, and grating to be and continue, and kept and maintained, and continued kept and maintained the same in the same state and condition, until the happening of the grievance thereinafter mentioned : And the said Edwin James Bobbins, deceased, afterwards, to wit, on the 10th of February, 1862, was lawfully passing over and along the said common and public footway, as he lawfully and properly might, and by reason of the said dilapidated, decayed, dangerous, and unsafe state and condition of the said area and grating, the same fell in, and the said Edwin James Bobbins was thrown down into the said area, whereby he was severely hurt and injured, and by i-eason of the said injuries thereby occasioned to him as aforesaid the said Edwin James Bobbins afterwards, and within twelve calendar months next before the bringing of tliis suit, diefi : and the plaintiff, as administratrix as aforesaid, for the benefit of her tile said widbw and Louise Jane Bobbins the child of the said Edwin James Bobbins, deceased, according to the form of the statute in that case made and provided, claimed 10001. The defendant pleaded,-first, not guilty,-secondly, that the said area was not immediately adjoining or under a common arid public footway, as alleged,-thirdly, C. P. xxi.-25 7 70 ROBBINS V. JONES IB C. B. (N. S.)22S. that the said Edwin James Bobbins was not [223] lawfully passing over or along the said common and public footway, as alleged,-fourthly, that persons passing in and along the said footway were not, at the time the defendant was possessed of the said tousea and premises and of the said area, in any danger of falling into the said area, -fifthly, that the said area and grating was no part of the common and public footway, and that, at the said time when, &c., the said Edwin James Bobbins unlawfully and of his own wrong, with others, broke and entered the said grating, houses, and premises, and he and others were unlawfully trespassing on the said grating and the said houses and premises, and crowding thereon, and by reason thereof the said grating fell in, and the said Edwin James Robbing was thrown down and injured as in the declaration mentioned. Issue thereon. The cause was tried before Willes, J., at the sittings at Westminster after last Michaelmas Term. The history of the cause is fully given in the judgment of the court,-post, p. 236, -which was prepared by the learned judge who presided at the trial. On the part of the defendant, it was contended that the pavement in question having been, dedicated to the public and used by them prior to the passing of the General Highway Act of 5 & 6 W. 4, c. 50, the parish was bound to keep it in repair, and no duty was by law cast upon the defendant to do so; and, further, that, assuming the spot in question to be private property, the public had no right to congregate on it so as to render it dangerous. The learned judge put the following questions to the jury : - 1. Was the flogging in question a nuisance causing danger to persons lawfully using the highway, even considered as bounded by the retaining walls of the bridge approaches ? [224] 2. Was it a nuisance causing danger to persons lawfully passing from the highway to the houses? 3. Were the flagging and grating in a fit state, regard being had to the safety of persons going to the houses ? 4. Were they in a reasonably fit state, having regard to their user as a public footway ? 5. Were they in a reasonably fit state for persons to stand or walk upon in any sense? 6. Was the accident occasioned by the access of an extraordinary crowd, or by the improper state of the flagging and grating, or by both combined ? 7. Was the deceased guilty of any negligence or misconduct contributory to the accident? 8. Was the deceased, when he fell, lawfully using the place for the purpose of going to the house 1 9. Was the spot in question a public highway 1 The jury answered the 1st, 2nd, 3rd, and 8th questions in the affirmative, and the 4th and 7th. in the negative. To the 5th they answered,-"Not in the sense of a crowd always liable to be gathered together, when used as a public highway ;" to the 6th,-" By both ;" and to the 9th,-" Used as such by dedication." The learned judge thereupon directed a verdict to be entered for the plaintiff', and the jury assessed the damages at 2801., apportioning it as follows,-2001. for the widow, and 801. for the child. Lush, Q, C., in Hilary Term last, pursuant to leave reserved to him at the trial, ipoved to eifter a nonsuit. He also moved for a new trial on the ground that the findings of the jury upon some of the questions put to them were not warranted by the evidence. erle, Gi, J. As to the last ground, it seems that the [225] learned judge is not dissatisfied with the answers which were given by the jury; but we think the rule may go, for the purpose of considering their effect. willes, J. I should be inclined to say that the defendant would bo liable if the paving and flagging were not sufficient to beat- a crowd such as reasonably might be expected to gather upon them. A way that is to be used by the public should be strong enough to hold up all persons lawfully using it. At all events, a jury might I'easonably think so. The rule was ultimately drawn up as follows :-To enter a nonsuit, pursuant to the leave reserved, on the grounds,-first, that...
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