320 QUEEN'S BENCH DIVISION.

[189S]

1898 entered in the short cause list, and I only heard the arguments
BAYLI8 because the other cases in my day's list had been disposed of.
V.
JlGGENS.
Judgment for the defendants.

Solicitor for plaintiffs : J. P. Garrett.

Solicitor for defendants: L. A. T. Margetts.
P. B. H.

C.A. [IN THE COURT OP APPEAL.]

1898
r OQ HAEEOLD AND ANOTHER V. WATNEY.
June 23.
Nuisance—Fence adjoining Highway—Defective Condition—Injury to Child
using Highway—Froximate Cause of Injury—Liability of Owner of
Fence.
The defendant was the owner of a fence abutting on a highway. The
plaintiff, a child of four years of age, attracted by some boys at play on
the other side of the fence, put his foot on it, and it fell on and injured
him. In an action for damages for the injuries so sustained, the jury
found that the fence was very defective, but actually fell through the
plaintiff standing wholly or partly on it, though not for the purpose of
climbing over:—
Held, that the defective fence being a nuisance, and the cause of the
injuries to the plaintiff, the defendant was liable.

APPEAL from a judgment of Eidley J. at the trial of the

action with a jury.
One of the plaintiffs was an infant, who sued by his father
and next friend to recover, damages for personal injuries. The
defendant was the owner of a piece of ground abutting on and
fenced from a highway, and the statement of claim alleged a
duty on his part to keep the fence in a condition so as not to be
dangerous to persons lawfully using the highway ; that the infant
plaintiff was lawfully using the highway; and that he sustained
personal injuries by the wrongful and negligent acts and defaults
of the defendant in allowing the fence to be in a rotten and
insecure condition so that it fell on the infant plaintiff and
injured him.
The defendant pleaded that there was no wrongful act on
2 Q. B. QUEEN'S BENCH DIVISION. 321

his part, and contributory negligence on the part Qf the infant C.A.
plaintiff. 1898
The evidence established that the infant plaintiff, who was ~~HARROLD
v
four years of age, was near the fence, on the other side of which -
some boys were playing, that he put one foot on the fence
and was about to put the other on, when the fence fell on and
injured him.
The jury found that the fence was very defective, but actually
fell through the infant plaintiff standing wholly or partly on
the fence not for the purpose of climbing over, and, if the
plaintiffs were entitled to recover, the damages were assessed
at 45Z.
The learned judge directed that judgment should be entered
for the defendant.
The plaintiffs appealed.

D. Chamier, for the plaintiffs. Even if the child was climbing

on to the fence, that does not deprive him of his right to recover.
There are a number of cases that shew that a trespasser may
have a right of action for an injury sustained while in the act
of trespassing : Ilott v. Wilkes (1), as explained in Bird v. Hol-
brook (2) ; Lynch v. Nurdin (3); Barnes v. Ward (4); Jewson
v. Gatti. (5)
The defendant relied on Hughes v. Macfie (6) and Mangan
v. Atterton{l) ; but the latter of these cases is discredited in
Clark v. Chambers (8), and the weight of authority is against
both of them.
David, for the defendant. The case was presented to the
jury on the ground of negligence and not of nuisance, and there
was no evidence which should have been left to the jury.
There was no inducement, and certainly not any invitation, to
climb on to this fence. It is not like the case of a dwarf wall
along which children would be certain to try to walk. Hughes
(1) (1820) 3 B. & A. 304. (5) (1886) 2 Times L. K. 381, 441.
(2) (1828) 4 Bing. 628. (6) (1863) 2 H. & C. 744; 33 L. J.
(3) (1841) 1 Q. B. 29. (Ex.) 177.
(4) (1850) 9 C. B. 392; 19 L. J. (7) (1866) L. R. 1 Ex. 239.
(C.P.) 195. (8) (1878) 3 Q. B. D. 327.
322 QUEEN'S BENCH DIVISION. [1898]

C.A.
v. Macfie (1) is much nearer the present case than Lynch v.
1898
Nurdin (2), and the judgment of Bramwell B. in Mangan v.
HARROLD A tterton (3) is a distinct authority in favour of the defendant.
WATSEY. J^wson v. Gatti (4) does not apply, because in that case there
was a representation that the bar was safe and proper to lean
against, while in this case ho such representation can be
implied.
D. Chamier, in reply.

A. L. SMITH L.J. This is an application by the infant

plaintiff to have judgment entered for him in a case tried before
Bidley J. and a jury. Speaking for myself, it does not seem
to me that the real question on which the case ought to have
been fought was specifically determined.
The facts are that the defendant was the owner of a fence
by the side of a highway, and the evidence is overwhelming
that the fence was rotten and defective. A boy of four years
of age was using the highway, and on the other side of the
fence was ground on which boys were accustomed to play.
This attracted him, and he put one foot on the fence and was
•about to put the other on, when the fence came down upon
and injured him. The question is whether this action for the
injuries so sustained can be maintained. The learned judge
decided that it could not, but I cannot think that is the right
view. A rotten fence close to a highway is an obvious nuisance.
If I were on the highway and wanted to tie up my boot, or got
tired and leaned against the fence, should I not have been
lawfully using the highway ? The present case is a stronger
one. This boy was lawfully using the highway, and doing that
which is pointed out by Lord Denman in Lynch v. Nurdin (2)
to be a natural thing for him to do. That case has never been
overruled, but has been treated in subsequent cases as sound
law. The facts were that the defendant negligently left his
horse and cart unattended in the street, and that the plaintiff,
a child seven years old, got upon the cart in play, and another
(1) 2 H. & C. 744; 33 L. J. (Ex.) (2) 1 Q. B. 29.
177. (3) L. E. 1 Ex. 239.
(4) 2 Times L. R. 381, 441.
2 Q. B. QUEEN'S BENCH DIVISION. 323

child led the horse on, and the plaintiff was thrown down C.A.
and hurt. 1898
Lord Denman in delivering the judgment of the Court HABKOLD
said (1): " But the question remains, can the plaintiff then, W A ^ E Y
consistentlyJ with the authorities, maintain his action, having
' ° A. L. Smith L.J.
been at least equally in fault. The answer is that, supposing
that fact ascertained by the jury, but to this extent, that he
merely indulged the natural instinct of a child in amusing him-
self with the empty cart and deserted horse, then we think that
the defendant cannot be permitted to avail himself of that fact.
The most blamable carelessness of his servant having.tempted
the child, he ought not to reproach the child with yielding to
that temptation. He has been the real and only cause of the •
mischief. He has been deficient in ordinary care; the child,
acting without prudence or thought, has, however, shewn these
qualities in as great a degree as he could be expected to possess
them. His misconduct bears no proportion to that of the
defendant which produced it. For these reasons, we think
that nothing appears in the case which can prevent the action
from being maintained."
That decision carries the present case, and there is, further,
the case of Jewson v. Gatti (2), which supports it. In that
case there was a cellar beside the highway in which scene-
painting was going on. A bar was round the opening ; a pass-
ing child naturally looked down to see what was going on; the
bar gave way, and he- fell into the cellar. Day J. non-suited
the plaintiff, but the non-suit was set aside.
Lord Esher in giving judgment said: " This was a case of
premises on the highway in a street where hundreds of persons
and many-children were passing up and down, and the area
was left unprotected, without any due regard to the safety of
the public, and that of itself might be sufficient to sustain a
case for the plaintiff. But there was more than that. For
•there was painting going on in the cellar, and it must have
been known that this would attract children; and then a bar
was put up, ostensibly for the purpose of protection, against
which children would naturally lean while looking down into
(1) 1 Q. B. at p. 38. (2) 2 Times L. E. 381, 441.
324 QUEEN'S BENCH DIVISION. [1898]
C. A.the cellar where the painting was going on. This was almost
1898an invitation, certainly an inducement, to the children to lean
HARROLD against the bar while looking down into the cellar. . The child
"• leant against it and it gave way, and she fell down into the
area." He then said that this was a case for the consideration
A. L. Smith L.J. . .
of the jury, and Lmdley L.J. concurred in the judgment.
I think it is the duty of this Court, seeing what are the real
facts of the case and the finding of the jury that the fence was
very defective, not to send the case down for a new trial, but to
enter the verdict for the plaintiffs for the damages assessed by
the jury. The appeal must be allowed with costs.
EIGBX L.J. I am of the same opinion. The most telling
argument for the defendant was that the accident was the
child's own fault, and that was the ground on which the judg-
ment was entered for the defendant. But in neither of the
cases of Lynch v. Nurdin (1) nor Jewson v. Gatti (2) was a
similar argument permitted to prevail. I agree that judgment
ought to be entered for the plaintiffs.

VAUGHAN WILLIAMS L.J. I agree. As the case raises a

question of principle which may recur, I think it right to
express my view on the matter. This is an action in which it
is alleged that the injury to the child arose in consequence of
the condition in which the defendant left his fence adjoining
the highway. The jury were not asked specifically the question
whether the fence was in such a dangerous condition as to be a
nuisance to those who used the highway. But on reading the
evidence the only conclusion to be arrived at is that the fence,
in the condition in which it was, constituted a danger to those
using the highway—that is, it constituted a nuisance. When
that has been settled, all has not been done to give a right of
action to the plaintiff. It must also be proved that it was this
nuisance which was the cause of the injury complained of.
When it is urged that the child should not have put his foot on
the fence, that amounts to a suggestion that the accident was
not caused by the nuisance, but by the conduct of the child;
(1) 1 Q. B. 29. (2) 2 Times L. E. 381, 441.
2 Q. B. QUEEN'S BENCH DIVISION. 325

and for this purpose it does not matter whether that conduct C. A.
was negligence or trespass. I n my view, looking at the facts 1898
of this case, it is not true to say that the accident was caused HARROLD
by the conduct of the child. The defendant caused a nuisance, WAJ^
and when asking one's self if the nuisance was the cause of the
. . Vaughan
accident one gets a test in this way : Ought what the child did wuuams L.J.
to have been present to the mind of the person who created the
nuisance as a probable result of his act ? If he says that it was
not t h e ' consequence of his act because the fence was good
enough if grown-up people who were passing did not touch it,
and that they had no right to touch it, the answer is that the
highway is for children also, and if he leaves such a nuisance
close to a highway it is exceedingly likely to cause injury to
children using the highway. If that is so, it is the nuisance
which was the cause of the injury to the child, and the defend-
ant cannot get out of that conclusion by relying on the act of
the child in touching the fence because that act was one which
would probably not be done by a grown-up person. I come,
therefore, to the conclusion that it has been established by the
evidence that not only was the fence a nuisance, but that the
injury to the child was the result of that nuisance.

Appeal allowed.
Solicitor for plaintiffs : C. F. Appleton.
Solicitors for defendant: Pownall <£• Co.
A. M.