065-NLR-NLR-V-03-LEWIS-v.-MEERA-LEBBE.pdf
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LEWIS v. MEERA LEBBE.C. R., Negombo, 2,651.
Right of highway—Interference with such right—Public nuisance—inability for damage resulting from frightening of passing horses—Evidence—Negligence.
All persons are entitled to pass and repass along a public highwayunmolested, and anything which interferes with such right or rendersthe passage less convenient is a public nuisance, giving rise to anaction for damages occasioned thereby.
In an action for damages arising from the frightening of passinghorses by objects placed on or near the highway, negligence hasnothing to do with the cause of action. It should be proved thatthe objects were such as were likely to frighten ordinary horses, andthat the damage was occasioned directly by such objects.
The mere placing temporarily, by the roadside, of a bag of rice isnot in itself an unreasonable User of the road, or necessarily apublic nuisance ; nor would the removal of it from the wheel track,as a horse was coming up, render the remover liable in damages, ifthe horse seeing the act of removal took fright and injured thecarriage and harness.
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T appeared that the first defendant employed the seconddefendant to unload a boat laden with rice in bags. A
public road ran alongside the canal at the spot where the boatwas lying. In the course of the unloading the second defendant
1885.
June 26 andJuly 2.
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had a bag of rice on the road clear of the wheel track. The plaintiff’shorse and carriage came along the road at a walking pace. Just asthey came near the spot where the bag was lying second defendanttried to pull the bag further away from the wheel track, and thisact of his was supposed to have caused the horse to shy. The horseturned suddenly round, the driver fell off the box, and the horse,being thus left uncontrolled, ran away and damaged the carriage■ and harness. There was no evidence that there was anythingimproper or unusual in unloading the boat at this spot, nor of anyspecific negligence on the part of the second defendant, nor thatthe bag was an object likely to frighten a horse. There was onlythe fact that the horse shied at something and ran .away. TheCommissioner found that the second defendant negligently laiddown a bag of rice on the roadway and near the wheel track ofcarriages in such a position that the horse took fright, shied, andbolted with the carriage, and cast the second defendant and hismaster, the first defendant, in damages.
1805.
June 26 andJuly 2.
The defendants appealed.
Bawa, for appellants.
Van Langenberg, for. respondent.
Cur. adv. mdt.
2nd July, 1895. Bonser, C.J.—
There can be no doubt that according to the law of England(and it was not suggested that the law of this Island differs onthis point) all persons are entitled to pass and repass along apublic highway unmolested, and that anything which interfereswith such right or fenders the passage less convenient is a publicnuisance, giving rise to an action at the suit of any person whois specially damaged thereby. For instances of such suits, seeHill v. New River Co. (9 B. and S. 303), where defendant causeda jet of water to spout up in the road ; Hants v. Mobbs (3 Exch.263), where the defendant left a house van with a steam ploughattached on the grass by the roadside; Wilkins v. Day {12 Q. B.D. 110), where the defendant left a large roller by the side of theroad with its shafts projecting over the roadway; and Brown v.Eastern and Midlands Railway Co. {22. Q. B. D. 391), where thedefendants had placed a heap of rubbish on their own land nearthe highway. In all these cases the defendants were held liablefor damage resulting from passing horses being frightened. Butin all these cases there was some evidence that the objects weresuch as were likely to frighten ordinary horses. With this cause
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1805.
June 26 andJuly 2.
Bokseb, C. J.
of action negligence has nothing to do. The questions are: (1)whether the act of the defendant occasioned a public nuisance;and (2) whether the damage resulted directly from that act.
I do not think that the mere placing of a bag of rice by the road-side is in itself an unreasonable user of the road, or necessarily apublic nuisance. Of course, a person is not entitled to turn theroadside into a goods depot by leaving bags there an unreasonabletime. But it is not an unlawful use of a highway for a man carryinga burden to lay it down for a minute by the roadside to rest himselfnor is a bag of rice an unusual object in this Island, or such as wouldbe likely in itself to frighten a horsei
In the present case, however, the evidence shows that the Com-missioner appears to find as a fact that the horse did not takefright at the bag, so that the placing of the bag there, whetherlawful or unlawful, was not the proximate cause of the damage.What the horse took fright at was the act of the second defendantin pulling away the bag further from the wheel track. Even ifthe original placing of the bag by the roadside were an unlawfulact, the removing it from the position would be a lawful act, andwould not give rise to any action unless it were done negligently.Now, there is no evidence whatever of any such negligence, nordoes the Commissioner find that it was done negligently. Hefinds that the placing of the bag there was done negligently, butthat was not, as I have stated, the proximate cause of the damage.
For these reasons I am of opinion that the judgment ought tohave been for the defendant.
. I cannot help thinking that the fact, which was adduced inevidence by the plaintiff, that the second defendant had been finedin the Police Court for placing the bag by the roadside influencedthe Commissioner’s mind, and that he assumed that that convictionestablished the second defendant’s liability.
The appeal will be allowed.