It only remains to consider whether the summing-up was substantially in accordance with that direction. I think that it was not. The jury were told that there was no evidence of contributory negligence on the part of the Plaintiff; and Mr. Hopwood has ingeniously argued that the judge was only expressing a strong opinion upon a matter of fact. But on turning to the early part of the summingup I find that he tells the jury that the first question for them to determine was whether the accident was brought about by the negligence of the Defendants' servants, and not, as in Tuff v. Warman (a), whether it was occasioned 'entirely" by that negligence, and that a question might have arisen under some circumstances as to whether there was contributory negligence on the part of the Plaintiff. He then tells them that he had no hesitation in ruling, on the authority of Addison on Torts (b), that negligence on the part of a Plaintiff will not disentitle him to recover damages, unless but for that negligence the accident could not have happened; nor if the Defendant could by the exercise of care on his part have avoided the consequences of the negligence of the Plaintiff: and with the law so laid down, except in the use of the word "could" instead of "would," it might be difficult to quarrel. But he then states that the Plaintiff was therefore entitled to damages if the van ran into the cart; and that in the present case there was no evidence of contributory negligence on the part of the Plaintiff. Upon the ground, therefore, that the judge has withdrawn from the jury a question which was proper for their consideration, and that the summing-up was not substantially in accordance with that in Tuff v. Warman (a), there must be a new trial. With regard to the question of costs, we think that in the event of the Defendants succeeding on the new trial, they ought to have the costs of this appeal; but otherwise that there should be no costs on either side.

(a) 5 C. B., N. S. 573.

(b) Referring probably to p. 264.

1866.

WALTON

v.

THE LONDON,

think the jury could have been misled by the use of the word "directly," and that in other respects the summing-up was not objectionable. In all cases of this kind, where BRIGHTON & there is evidence of negligence on the part of the Plaintiff, the direction to the jury should be in the terms stated by Wightman, J., in that case.

SOUTH COAST
RAIL. CO.

Now, was there evidence Plaintiff here? There was

of negligence on the part of the
evidence of the same sort of negligence on the part of the
Plaintiff in leaving his cart unattended, as on the part of
the Defendants, though I do not say that there was evidence
of the same degree of negligence. It was the circum-
stance of the Defendants' van being left unattended that
the judge left to the jury as undoubted negligence on the
part of the Defendants, for he says "that it was occasioned
by the negligence of the servant in leaving the van there
could be no doubt whatever." It ought, therefore, to have
been left to the jury to say whether there was negligence
on the part of the Plaintiff. If there was evidence of
negligence on the part of the Plaintiff, the further ques-
tion arises whether that negligence was the proximate
or direct cause of the accident? For the reasons I have
already mentioned the Court of Exchequer Chamber laid
down the proper form in which that question should be
left: "It appears to us that the proper question for the
jury in this, and indeed in all other cases of the like
kind, is, whether the damage was occasioned entirely by
the negligence or improper conduct of the Defendant, or
whether the Plaintiff himself so far contributed to the mis-
fortune by his own negligence or want of ordinary and
common care and caution, that, but for such negligence
or want of ordinary care and caution on his part, the mis-
fortune would not have happened" (a). Nothing can be
more clear than those words, or more calculated to inform
a jury what the question is which they have to determine.

(a) 5 C. B., N. S. 585.

1866.

WALTON

ν.

THE LONDON,

SOUTH COAST
RAIL. CO.

It only remains to consider whether the summing-up was substantially in accordance with that direction. I think that it was not. The jury were told that there was no evidence of contributory negligence on the part of the Plain- BRIGHTON & tiff; and Mr. Hopwood has ingeniously argued that the judge was only expressing a strong opinion upon a matter of fact. But on turning to the early part of the summingup I find that he tells the jury that the first question for them to determine was whether the accident was brought about by the negligence of the Defendants' servants, and not, as in Tuff v. Warman (a), whether it was occasioned entirely" by that negligence, and that a question might have arisen under some circumstances as to whether there was contributory negligence on the part of the Plaintiff. He then tells them that he had no hesitation in ruling, on the authority of Addison on Torts (b), that negligence on the part of a Plaintiff will not disentitle him to recover damages, unless but for that negligence the accident could not have happened; nor if the Defendant could by the exercise of care on his part have avoided the consequences of the negligence of the Plaintiff: and with the law so laid down, except in the use of the word "could" instead of "would," it might be difficult to quarrel. But he then states that the Plaintiff was therefore entitled to damages if the van ran into the cart; and that in the present case there was no evidence of contributory negligence on the part of the Plaintiff. Upon the ground, therefore, that the judge has withdrawn from the jury a question which was proper for their consideration, and that the summing-up was not substantially in accordance with that in Tuff v. Warman (a), there must be a new trial. With regard to the question of costs, we think that in the event of the Defendants succeeding on the new trial, they ought to have the costs of this appeal; but otherwise that there should be no costs on either side.

(a) 5 C. B., N. S. 573.

(b) Referring probably to p. 264.

1866.

WALTON

v.

THE LONDON,
BRIGHTON &

SOUTH COAST

RAIL. CO.

KEATING, J. We ought not to be too astute in criticising the language used by a judge in his summing-up, whether in a County Court or elsewhere. But it is impossible not to see that in this case the judge has withdrawn from the jury the question of contributory negligence on the part of the Plaintiff; and it is also perfectly clear that the question was advisedly withdrawn from them. If there was evidence of contributory negligence, to withdraw it from the jury was misdirection. It seems to me that there was such evidence. I give no opinion as to its strength; but no doubt there was some evidence of it, and I think there should be a new trial upon the terms laid down by my Brother Willes,

SMITH, J. As I have not heard the whole of the argument I express no opinion beyond saying that in such cases the ruling in Tuff v. Warman should be adhered to.

Judgment for the Appellants.

CASES

ARGUED AND DETERMINED

IN

THE COMMON
COMMON PLEAS

IN

EASTER TERM,

XXIX VICTORIA.

The Judges who usually sat in Banc in this Term were :

KIDSTON and Another v. THE EMPIRE MARINE

INSURANCE COMPANY (Limited).

1866.

May 8.

By a policy of marine insurance in the ordinary form, the defendants in- Marine insursured the chartered freight, payable at home, of the Plaintiffs' vessel, ance. S., on her voyage from America to the United Kingdom, "warranted Freight, insurfree from particular average; also from jettison, unless the ship should ance of. be stranded, sunk or burnt." The policy contained the ordinary Constructive suing and labouring clause, with an express declaration that the acts total loss of of insurer or insured, in recovering the property insured, should not ship. be considered as waiver or acceptance of abandonment. On the voyage Transfer of the ship put into Rio in distress, and was so damaged as to become a goods to substiconstructive total loss, but the goods were removed, and, being placed tuted ship. in another ship, reached the port of discharge in safety. There was Liability for no notice of abandonment, and the chartered freight was paid. The additional Plaintiffs claimed as for a total loss, and also, under the suing and freight. labouring clause, for the expenses of transshipment, and for freight Meaning of of the substituted ship, which, with expenses at Rio, did not exceed particular the chartered freight. Held: average." labouring

1. That the expenses incurred were of a character to be within Suing and
the suing and labouring clause.

2. That, apart from the question of usage, the suing and labour- clause.
ing clause is applicable to all cases in which the underwriter Evidence of
is saved from liability to loss, whether partial or total, and usage.
whether an abandonment does or may possibly take place or
not; and that the occasion on which the said expenses were
incurred was within that clause.

3. That the provision in the policy as to warranty against parti-
cular average only limited the insurance to total loss of the

VOL. I.-C.P.

H H