I quite agree that this is so, and it is an evil. But I think it a far slighter evil than it would be to leave in the hands of the jury a power which might be exercised in the most arbitrary manner....
[The concurring opinions of Lord O’Hagan and Lord Gordon are omitted.]
Judgment given for the plaintiff in the court below reversed, and a nonsuit to be entered.[[93]]
KEARNEY v. LONDON, BRIGHTON & SOUTH COAST R. CO.
In the Queen’s Bench, June 15, 1870.
Reported in Law Reports, 5 Queen’s Bench, 411.
Declaration, that the defendants were possessed of a bridge over a certain public highway, and it became their duty to maintain and keep in repair the bridge, so that it should not be injurious to any person passing under it; yet the defendants so negligently maintained the bridge, that while the plaintiff was lawfully passing under the bridge a portion of the materials of the bridge fell down and injured the plaintiff.
Plea: Not guilty. Issue joined.
At the trial before Hannen, J., at the sittings in Middlesex after Michaelmas Term, 1869, it appeared, according to the plaintiff’s evidence, that the plaintiff, on the 20th of January, 1869, was passing along the Blue Anchor Road, Bermondsey, under the railway bridge of the defendants, when a brick fell and injured him on the shoulder. A train had passed just previously, but whether it was a train of the defendants, or of another company (whose trains also pass over the bridge), did not appear. The bridge had been built three years, and is an iron girder bridge resting on iron piers, on one side, and on a perpendicular brick wall with pilasters, on the other, and the brick fell from the top of one of the pilasters, where one of the girders rested on the pilaster.
The defendants called no witnesses,[[94]] but rested their defence on there being no evidence of negligence in the defendants; and also on the ground that the injury to the plaintiff’s shoulder was not really caused by the falling of the brick.
As to the evidence of negligence, the learned judge told the jury that if they thought the bare circumstance of a brick falling out was not evidence of negligence, they would find for the defendants; if they thought otherwise, for the plaintiff; and the court would determine whether there was legal evidence of negligence or not, as to which he should reserve leave to the defendants to move.
The jury found a verdict for the plaintiff for 25l.