Byrne v.Boadle

Court of Exchequer,1863

2 H.& C.722,159 Eng.Rep.299

[Action for negligence.The plaintiff’s evidence was that he was walking in a public street past the defendant’s shop,and that a barrel of flour fell upon him from a window above the shop,knocked him down,and seriously injured him.There was no other evidence.]

… First,there was no evidence to connect the defendant or his servants with the occurrence….It is consistent with the evidence that the purchaser of the flour was superintending the lowering of it by his servant,or it may be that a stranger was engaged to do it without the knowledge or authority of the defendant.[POLLOCK,C.B.The presumption is that the defendant’s servants were engaged in removing the defendant’s flour’ if they were not it was competent to the defendant to prove it.]

Secondly,assuming the facts to be brought home to the defendant or his servants,these facts do not disclose any evidence for the jury of negligence.The plaintiff was bound to give affirmative proof of negligence.But there was not a scintilla of evidence,unless the occurrence is of itself evidence of negligence.There was not even evidence that the barrel was being lowered by a jigger-hoist as alleged in the declaration.[POLLOCK,C.B.There are certain cases of which it may be said res ipsa loquitur,and this seems one of them.In some cases the Courts have held that the mere fact of the accident having occurred is evidence of negligence,as,for instance,in the case of railway collisions.](https://www.daowen.com)

At the trial before the learned Assessor of the Court of Passage at Liverpool,the evidence adduced on the part of the plaintiff was as follows: – A witness named Critfchley said: “On the 18th July,I was in Scotland Road,on the right side going north,defendant’s shop is on that side.When I was opposite to his shop,a barrel of flour fell from a window above in defendant’s house and shop,and knocked the plaintiff down.He was carried into an adjoining shop.A horse and cart came opposite the defendant’s door.Barrels of flour were in the cart.I do not think the barrel was being lowered by a rope.I cannot say: I did not see the barrel until it struck the plaintiff.It was not swinging when it struck the plaintiff.It struck him on the shoulder and knocked him towards the shop.No one called out until after the accident.” The plaintiff said: “On approaching Scotland Place and defendant’s shop,I lost all recollection.I felt no blow.I saw nothing to warn me of danger.I was taken home in a cab.I was helpless for a fortnight.” (He then described his sufferings.) “I saw the patch clear.I did not see any cart opposite de-fendant’s shop.” Another witness said: “I saw a barrel falling.I don’t know how,but from defendant’s.” The only other witness was a surgeon,who described the injury which the plaintiff had received.It was admitted that the defendant was a dealer in flour.

It was submitted,on the part of the defendant,that there was no evidence of negligence for the jury.The learned Assessor was of that opinion,and nonsuited the plaintiff,reserving leave to him to move the Court of Exchequer to enter the verdict for him with ￡50 damages,the amount assessed by the jury.

POLLOCK,C.B.We are all of opinion that the rule must be absolute to enter the verdict for the plaintiff.The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise,but I think it would be wrong to lay down as a rule that in no case can a presumption of negligence arise from the fact of an accident.Suppose in this case the barrel had rolled out of the ware-house and fallen on the plaintiff,how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a ware house to take care that they do not roll out,and I think that such a case would,beyond all doubt,afford prima facie evidence of negligence.A barrel could not roll out of a warehouse without some negligence,and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous….The present case upon the evidence comes to this,a man is passing in front of the premises of a dealer in flour,and there falls down upon him a barrel of flour.I think it is apparent that the barrel was in the custody of the defendant who occupied the premises,and who is responsible for the acts of his servants who had the control of it;and in my opinion the fact of its falling is prima facie evidence of negligence,and the plaintiff who was injured by it is not bound to show that it could not fall without negligence,but if there are any facts inconsistent with negligence it is for the defendant to prove them.