SCOTT V. THE LONDON AND ST. KATHERINE DOCKS COMPANY. Feb. 7, 1865.— Held, in the Exchequer Chamber, that in an action for personal injury caused by the alleged negligence of the defendant, the plaintiff must adduce reasonable evidence of negligence to warrant the Judge in leaving the case to the jury.— But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.—In an action against a dock Company for injury to the plaintiff by their alleged negligence the plaintiff proved that he was an officer of the Customs, and that, whilst in the discharge of his duty he was passing in front of a warehouse in the dock, six bags of sugar fell upon him. Held, reasonable evidence of negligence to be left to the jury: per Crompton, J., Byles, J., Blackburn, J., and Keating, J. Dissentientibus Erle, C. J., and Mellor, J.

[S. C. 34 L. J. Ex. 220; 11 Jur. (N. S.) 204; 13 W. R. 410; 13 L. T. 148. Distinguished, Higgs v. Maynard, 1866, 1 H. & R. 581. Followed, Briggs v. Oliver, 1866, 4 H. & C 403. Adopted, Smith v. Great Eastern Railway, 1866, L. R. 2 C. P. 11. Distinguished, Moffatt v. Bateman, 1869, L. R. 3 P. C. 115 ; 6 Moore, P. C. (N. S.) 369; Bridges v. North London Railway, 1871, L. R. 6 Q. B. 391 : reversed 1874, L. R. 7 H. L. 213 ; Manzoni v. Douglas, 1880, 6 Q. B. D. 151; Crisp v. Thomas, 1890, 63 L. T. 811. Referred to, Travers v. Cooper, [1914] 1 K. B. 78.]

This was an appeal against the decision of the Court of Exchequer in making absolute a rule to set aside the verdict for the defendants and for a new trial.(a)The declaration stated that the defendants were possessed of a warehouse, and of 666 a certain crane or machine for lowering goods therefrom, and at the time of the grievances committed by them as hereinafter mentioned, they, by their servants, in that behalf, were lowering by the said crane or machine from the said warehouse eertain bags of sugar on to the ground and stone pavement in the docks of the said Company, and on and along which the plaintiff was then lawfully passing ; and the defendants, by their servants, so negligently, carelessly and improperly lowered the said bags of sugar and conducted themselves in that behalf that the same came and fell upon and against [597] the plaintiff: Whereby the plaintiff was greatly wounded, bruised, hurt and permanently injured, &c.

Plea. Not guilty, and issue thereon.

At the trial, before Martin, B., at the London Sittings after Trinity Term, 1864, the plaintiff deposed as follows :— I am an officer of the Customs. I am an auxiliary examiner. I superintend weighing goods. On the 19th of January I had performed duty at the East Quay of the London Docks. I was directed to go from the East Quay to the Spirit Quay by Mr. Lilley, the surveyor. I went to the Spirit Quay in order to do duty. I proceeded on my way. There are warehouses on the Spirit Quay. I went to the entrance of one of the warehouses, and could not find Mr. Lilley. I was told he was in another warehouse. I was proceeding to where I was told he was at the time of the accident. I proceeded to the first door I met upon the quay. I went into the warehouse of which it was the door. I met a labouring man about two yards within the warehouse. I asked him if Mr. Lilley was there. He said, "No, sir; you will find him in the next doorway." In passing from one doorway to the other I was felled to the ground by six bags of sugar falling upon me. (He then described the injuries he received.) No one but myself was at the place. I had no warning. There was no fence or barrier. No one called out. I heard the rattling of a chain.

At the conclusion of the plaintiff's examination in chief the learned Judge expressed his opinion that, even assuming that the bags of sugar were being dealt with by the servants of the defendants in the course of their employment, and that the plaintiff was lawfully passing through the Docks, there was not sufficient evidence of negligence on the part of the defendants to entitle him to leave the case [598] to the jury ; and his lordship then directed the jury to find a verdict for the defendants.

The Solicitor General, in the following Michaelmas Term, obtained a rule nisi to set aside the verdict and for a new trial, on the ground that there was evidence for the jury of negligence by the defendants' servants ; which rule was made absolute in the same term : whereupon the defendants brought this appeal.

Field (Murphy with him) argued for the defendants.(b) There was no evidence of negligence which ought to have been submitted to the jury. This case is distinguishable from Byrne v. Boadle (2 H. & C. 722), because the place in which the accident occurred was not, as there, a public highway, but a dock the property of a Company, and the public had no right to walk in front of the warehouses. If, upon the evidence, the facts are as consistent with the absence of negligence as with negligence, there is no evidence for the jury. So, if the facts are consistent with contributory negligence on the part of the plaintiff, there is no evidence for the jury. It is consistent with the evidence that the bags of sugar were being lowered in the usual course, and that the plaintiff did not take proper care in passing from one warehouse to the other. [Crompton, J. There could be no contributory negligence unless there was negligence on the part of the defendants.] Where it is a perfectly even balance upon the evidence whether the injury complained of has resulted from the want of proper care on the one side or on the other, the party who founds his claim upon the imputation of negligence fails to establish his case : per Erle, C. J., in Cotton v. Wood (8 C. B. N. S. 568, 571). [599] A scintilla of evidence, or a mere surmise that there may bave been negligence on the part of the defendants, will not justify a Judge in leaving the case to the jury : Toomey v. The London, Brighton and South Coast Railway Company (3 C. B. N. S. 146, 150). That doctrine was acted upon in Hammack v. White (11 C. B. N. S. 588). There Erle, J., in the course of the argument said : " I do not assent to the doctrine that mere proof of the accident throws upon the defendants the burthen of shewing the real cause of the injury. All the cases where 667the happening of an accident has been held to be prima facie evidence of negligence have been cases of contract." [Blackburn, J. The question depends on the nature and character of the accident. If a ship goes down in the sea that is equally as consistent with care as with negligence ; but if a ship goes down in a dock, is not the fact of the accident prima facie evidence of negligence?] There was no evidence of want of reasonable care. The fact of lowering the bags is quite as consistent with care as with the absence of it. [Crompton, J. It is stated that the bags fell upon the plaintiff; then how could they have been lowered in the ordinary cours?] The accident may be accounted for in many ways consistent with the absence of negligence. If a custom house officer, in the performance of his duty, boarded a ship and fell down an open hatchway, the fact of the accident would be no evidence of negligence.

The doctrine laid down in Cotton v. Wood (8 C. B. N. S. 568) was affirmed in Cooke v. Waring (2 H. & C. 332). In Cornman v. The Eastern Counties Railway Company (4 H. & N. 781) Bramwell, B., considered it an ingredient in a case of negligence, that the mischief which happened was one which could have been foreseen. Wilkinson v. Fairrie (1 H. & C. 633) is an authority that it was [600] the plaintiff's duty to take care of his own safety. [Blackburn, J. There is an old pleading rule, that less particularity is required when the facts lie more in the knowledge of the opposite party than of the party pleading. Applying that here, is not the fact of the accident sufficient evidenee to call upon the defendants to prove that there was no negligence?] The defendants had a right to use their warehouse in the way they did, and there was no obligation or duty on their part to put up any fence or barrier, or warn the public of danger. The plaintiff was in the position of a person who had a mere license to enter the Docks, and he was not obliged to go the way he did : Bolch v. Smith (7 H. & N. 736). He also referred to Gallagher v. Piper (16 C. B. N. S. 669).

The Solicitor General (T. Jones with him), for the plaintiff. It is conceded that where the evidence is as equally consistent with due care as with negligence, there is no case for the jury. It is also conceded that it is not enough to shew a mere scintilla of evidence. No rule can be laid down that the mere fact of an accident is evidence of negligence; for each case must depend on its own circumstances. In determining what evidence a plaintiff must give, regard must be had to what a person in his position may be reasonably expected to give. Assuming that there was negligence on the part of the defendants in hiring incompetent servants, what more evidence could the plaintiff have given unless he called adverse witnesses to prove facts peculiarly within the knowledge of the defendants? In Christie v. Griggs (2 Camp. 79) Sir James Mansfield ruled that the mere fact of a coach having broken down was prima facie evidence of negligence. In Skinner v. The London, Brighton and South Coast Railway Company (5 Exch. 787) this Court [601] held that a collision between two trains on a railway was prima facie evidence of negligence. The true test is, whether the case is more consistent with negligence than care. Looking at the simple fact that the bags of sugar fell violently upon the plaintiff, this case is more consistent with negligence than care.

Field was not called upon to reply.

ERLE, C. J. The majority of the Court have come to the following conclusions :—

(a)Not reported, as no solemn judgment was pronounced, but only expressions of opinion in which the Court differed ; and the rule was made absolute in order that the case might be taken to a Court of error.
(b)Before Erie, C. J., Crompton, J., Byles, J., Blackburn, J., Keating, J., and Mellor, J.