occurred in a timber-yard no jury would have found negligence against the owner of it; but many persons think that if an accident happens within the gates of the premises of a railway company, there should always be a verdict against them."

ERLE, C.J.—I am of opinion that this rule should be made absolute, because I think there was no evidence to go to the jury of actionable negligence, and I draw a distinction between the present case and those referred to in argument, both from the nature of the structure and the ground of complaint as to that which was not supplied, namely, the hand-rail. With regard to the nature of the structure, these were common wooden stairs, some 6 or 8 feet wide, with the ordinary rise to go up, and some 2 inches of a strip of brass, or what they call a nosing to the steps. In my judgment, according to common experience, this was an ordinary structure; there was nothing of a peculiar nature about it, nothing like a trap-door, or a way of falling through the railing. There was a wall on both sides, and the passenger had only to lift his foot from step to step. The brass, having become smooth, was said to be slippery at times, and there was evidence that lead would be less slippery than brass. In my opinion, the persons who admit passengers to walk up such stairs as these, whether of wood or of wood with brass upon it, are not liable to an action because certain witnesses come and say they think that lead would have been safer. With regard to the question of the hand-rail, I am of opinion that from the nature of the structure the passengers going up this staircase had no right to claim that there should be a hand-rail, which, in truth, could only be used by those passengers who went up nearest to the wall, as of necessity several would go up abreast, and only one could use the hand-rail. It was not a thing that ordinary people would demand, and there is no law that requires of a railway company to gratify such a demand. This was an ordinary structure, and in an ordinary state and condition; there was nothing at all of a peculiar nature about it, and those using it could see what it was that had to be guarded

against. Perhaps there may be a distinction where a man has to descend from a height with an open balustrade and there is a possibility of falling down from a considerable height; but this was an ordinary staircase. I am further of opinion that even if there be a scintilla of evidence that there was a cause of complaint, still the plaintiff had perfect notice and knowledge of the nature of the structure; he had full knowledge of the place, was using it with full knowledge of what it was, and he has no reason to complain. The plaintiff had used this staircase every day from the time of the opening of the line of railway, a period of some eighteen months; and we are told that some 40,000 passengers a month have used the staircase ever since it was opened. I think he has no right to maintain an action because he would have found more convenience if there had been a hand-rail, and less slipperiness if there had been lead instead of brass in the front of the steps.

WILLES, J.-I am of the same opinion. It was incumbent on the plaintiff to give reasonable evidence, evidence from which the jury should come to the conclusion that the defendants had supplied an improper structure. The question comes to this, whether it was improper for the reasons which have been stated to face or nose these stairs with brass. The only evidence that was given was the evidence of a builder, who said, in effect, that lead was better than brass, and that in his opinion brass was dangerous. There is hardly any structure that one meets with in one's passage through life as to which you may not be able to call some one who will say it is dangerous. We must read the evidence by the light of that common experience which everybody has. We must take into account that the plaintiff must be considered to have known that which everyone knows, that brass is used for nosing such stairs as these, because he had used these stairs over and over again without objection. He does not deny that he knew brass was used. Taking all the circumstances together, this is nothing more than an attempt to make persons use a particular sort of material in constructing their stairs at the place where they carry on their business, instead of the

material which they have used, and which they use in common with a great number of mankind in hotels, and steamboats, and other places where everyone has seen brass used. I think, therefore, there was no evidence that could properly have been left to the jury. I think this case is to be amply distinguished from the case of Longmore v. the Great Western Railway Company (1). The charge there consisted of there being an apparent rail for the protection of persons who might slip on a wooden bridge, whereas, in fact, the rail, instead of being any protection, offered none at all, and there was a hole through which the husband of the plaintiff fell and received the injury as to which damages were sought to be recovered. In that case there was a trap, whilst here the usual mode of constructing stairs has been adopted. I think the rule ought to be made absolute to enter a nonsuit; but for the purpose of meeting any future steps which may be taken, the remainder of the rule with respect to a new trial must stand over and be reserved.

KEATING, J.—I have felt some difficulty, I confess, in this case in distinguishing it from the case of Longmore v. the Great Western Railway Company (1). I cannot say that that difficulty is wholly removed; but these cases present questions of mere degree, and as my Lord and my two learned Brothers are of opinion that there is a distinction between the two cases, I therefore am not disposed to dissent from the judgment of the Court.

MONTAGUE SMITH, J.-I am of opinion that a nonsuit should be entered in this case. I think that a line must be drawn between suggestions of possible precautions that may be taken and evidence of negligence which is reasonable and proper to go to the jury. It may be very difficult to know where to place that line; but I think in this case that the facts lie on the side of mere suggestion of possible precautions, or possible alterations, which might have been made, and which would have rendered the staircase more absolutely safe, and that there was no evidence at all of anything which amounted to negligence to go to the jury. There was nothing unusual in the staircase, and as the staircase, such as it was, with the brass nosing and want of a

hand-rail, was obvious to everyone, and must have been perfectly well known to the plaintiff, it seems to me, therefore, that the evidence of negligence failed, and that the plaintiff in using this structure, such as it was, cannot complain of this accident, which was not of an unusual or peculiar kind, but an accident of a description which happens on all staircases, however they may be constructed, that is, that a man slips upon them. I think the case of Longmore v. the Great Western Railway Company (1) may be distinguished from the present. In that case there was an aperture in the rails of the staircase, which was undoubtedly dangerous; a hole, so that a man might fall through. It was not obvious to anyone using it, that by slipping on the staircase he might fall through; and the consequences of falling through an aperture of that sort would, of course, be very serious, as they were in that case. With regard to the expression one of the witnesses used, that the stairs were dangerous by reason of the brass nosing, that is really merely an expression of opinion, and it is not strictly admissible for a witness to give evidence as to his opinion, although, no doubt, it is an expression very commonly used by witnesses. Although we are not here to assume that which is the undoubted province of the jury, yet the Court are bound to see in every case that there was sufficient and proper evidence to go to the jury, and to ask their opinion upon. In this case, I think, there was not such proper evidence, and therefore that the verdict must be entered as is sought for by the rule.

of passengers in crossing the line from one platform to the other. The bridge may be thus described, with the help of a diagram.

B

The top consisted of a level boarding reaching across the line at a considerable height above it. A person standing on the top of the bridge and desiring to descend on either side would first have to descend a flight of six or eight steps, B C, in line with the top of the bridge; he would then find himself on a square landing, and would then have to turn at right angles and descend a long flight of steps to the platform. The railing of the bridge was on the crossgirder principle, except where the short flights of steps were, and there only one girder was placed, as A C; A B was about 4 feet, and a c between 7 or 8 feet long. The only other way of crossing from one platform to the other was either by crossing the metalled way, or by going out of the station some little distance to a public bridge over the line, crossing this bridge and coming back on the other side of the line and entering the opposite side of the station. This bridge had been used by thousands of persons, and the deceased frequently, without any accident. One night, however, the deceased unfortunately slipped in descending one of the short flights of steps, fell through the aperture A B C, and was killed.

The jury found a verdict for the plaintiff, on the ground that the bridge was not a safe or proper

one.

A rule was granted, pursuant to leave reserved to enter a nonsuit, on the ground that there was no evidence of negligence; or for a new trial, because the Judge (Keating, J.) did not rule that as there was another bridge, the deceased used the wooden one at his own risk.

Huddleston and Macnamara shewed cause. W. H. Cooke and H. James appeared in support of the rule.

ERLE, C.J.-I am of opinion that this rule should be discharged. It was a question peculiarly for the jury whether reasonable care and skill had been

used in the construction of this bridge for the use of passengers. I am of opinion that there was evidence to go to the jury, and that the Judge would not have been justified in taking the matter out of the hands of the jury, in whose province it

was.

WILLES, J.-I am of the same opinion.

BYLES, J.-I am of the same opinion. The defect was not obvious, and the danger not apparent; it was the nearest way, and the deceased was invited to use it, and it was a question for the jury whether it was an improper structure.

KEATING, J.-I am of the same opinion. The jury might have found no negligence, and I do not say that I should have found the same way as they have done; it was, however, a question for them.

66

A local turnpike act (26 Vict. e. lix.) imposed certain tolls on waggons and carts," and by the interpretation clause included in these words threshing-machines. By the 3 Geo. 4. c. 126. s. 4. all the enactments, provisions, matters and things contained in the act are to extend to existing and future turnpike acts, unless expressly referred to and varied, altered or repealed; and by s. 32, implements of husbandry are exempted from toll. By the 9 Geo. 4. c. 77. s. 19, the powers, &c. in the former act are to extend to every local turnpike act as if repeated in it. By the 14 & 15 Vict. c. 38. s. 4. and the 16 & 17 Vict. c. 135. s. 6, implements of husbandry in the 3 Geo. 4. c. 126. are to include threshingmachines:-Held, that within the area of the local act, the provisions of the general acts as to threshing-machines were superseded, and that such machines within such area were liable to pay toll.

[For the report of the above case, see 35 Law J. Rep. (N.s.) M.C. p. 101.]

1866. Jan. 19.

BOLTON, assignee of PARSONS, a
bankrupt, v. THE LANCASHIRE
AND YORKSHIRE RAILWAY
COMPANY.

Trover-Stoppage in Transitu.

A. sold to B. goods which were lying at X, one of the defendants' railway stations; a portion were by B.'s orders sent to Y, another of the defendants' stations, were there taken by him and were paid for; B. refused to take any more, but A. sent the remainder to Y. to be delivered to him; B. refused to take them and they were sent back to X; A. also refused to take them, and they were again sent to Y, where they remained till B. became bankrupt; A. then directed the defendants to keep them for him, and they did so. In an action of trover by the assignee of B. against the defendants,—Held, that A. had a right of stoppage in transitu, and that the defendants were therefore justified in detaining the goods for him.

This was an action to recover damages for the conversion, by the defendants, of the goods of the plaintiff, the assignee of the estate and effects of Thomas Parsons, a bankrupt. The defendants pleaded not guilty, and that the goods were not the plaintiff's.

The cause came on for trial, before Shee, J., at the last Spring Assizes, held at Liverpool, for the southern division of the county of Lancaster, when a verdict was found for the plaintiff, for 3017. 12s. 6d. damages, and 40s. costs of suit, subject to the opinion of the Court upon the following

CASE.

On the 12th of July, 1864, the said Thomas Parsons bought from Joseph Wolstencroft eleven skips of 32 cop twist, at 2s. 91d. per lb. The goods were then lying at the defendants' railway station in Salford, and it was agreed that they should be delivered by Wolstencroft to Parsons in such parcels and at such times as the latter should request. On the 19th of July Wolstencroft sent an invoice to Parsons of the whole of the goods, with the numbers and weights of each skip. On the 22nd of July part of the goods, viz. three skips, were delivered by Wolstencroft at the Brierfield railway station, on the defendants' line NEW SERIES, 35.-C.P.

of railway, to the order and at the request of Parsons. For some reason which did not appear, Parsons, on the 2nd of August, returned the above invoice to Wolstencroft, and, on the 4th of August, he wrote to Wolstencroft the following letter:

"We decline taking any more of the 32 twist, whatever the consequence may be. It is so bad we cannot get our winders and warpers to work it. If you have sent the four skips off, we shall return them."

On the same day, Wolstencroft wrote to the defendants the following letter: "Order to Messrs. the L. & Y. Railway Company, Salford station, by Joseph Wolstencroft. Gentlemen, Please send to Thomas Parsons, Brierfield station, four skips out of the eleven lots marked, &c. Please send them off to-day and oblige," &c.

On the 16th of August Parsons paid Wolstencroft 951. for the three skips delivered on the 22nd of July, and took from him a receipt. It is admitted that, as to the three skips, there was no objection made by Parsons, except as to the weight, and this was allowed for in the 951. It is also admitted that, at the time the three skips were ordered to be delivered to Parsons, the whole eleven skips were lying at the defendants' railway station in Salford. On the 17th of August Wolstencroft sent to Parsons an invoice of the remaining eight skips, which particularized them, and contained the following statement: "Four skips of these skips have been sent to Brierfield station according to your wish; the other four are lying at Salford station, waiting your instructions; whatever is wrong in the weights shall be made right." And on the same day that Parsons received the above he returned it to Wolstencroft, with the following letter:

"We wrote you on August 4, by train, we should not take any more of the twist. Therefore, we shall not have any more of it, as we cannot get it worked. We return you the invoice." Parsons allowed the four skips therein mentioned to remain at Brierfield station, and instructed his carter not to remove them. On the 27th of August Parsons received a letter from Wolstencroft's attorney, demanding payment of 3017. 12s. 1d. and threatening an action. On the 1st of September Wolstencroft delivered the following order

T

to the defendants: "Order to Messrs. the L. & Y. Railway Co., Salford station, by J. Wolstencroft. Gentlemen,--Please deliver to Mr. Thomas Parsons, Brierfield station, the remaining four skips, lying in 20 Arch.... to-day. Yours, &c." On the 2nd of September Parsons's carter, without his knowledge, took away from the Brierfield railway station the four skips last sent by Wolstencroft, but these were at once returned by Parsons., On the same day he consigned the whole eight skips from the Brierfield station to Wolstencroft, and got from the station-master a memorandum of receipt of the goods. On the same day the whole eight skips were sent by the defendants from the Brier field station to Salford, to the order of Wolstencroft; but he refused to receive them, and they were sent back to Brierfield, and on the 6th of September the defendants sent a letter to their station-master at Brierfield, telling him of the refusal and directing inquiry to be made of the sender, and on the 7th of September sent the following letter to Parsons:

"You consigned eight skips to J. Wolstencroft, Manchester, on the 2nd instant; he refuses to take them, stating they are returned goods. Please say how they must be disposed of." And on the same day Parsons wrote to the defendants in answer to the above:

"The eight skips you write about; we cannot give you any information about them; the skips are not ours; we shall have nothing to do with them; they belong to J. Wolstencroft." The eight skips were sent back to the Salford station the same night. Nothing further took place between any of the parties in relation to the eight skips until the 30th of September, on which day particulars of demand for 3197. 8s. 11d., and a notice requiring payment under the Bankruptcy Act, was served on Parsons by Wolstencroft. It is admitted that 3017. 12s. 1d. only was due on the remaining eight skips.

On the 3rd of October, a trader debtor summons for 3197. 8s. 11d. was served on Parsons, which was made returnable on the 12th of October. On the 4th of October Wolstencroft's attorney wrote to the defendants the following letter:

'Be good enough to retain possession of

the under-mentioned skips on behalf of Mr. Joseph Wolstencroft until further instructed. Eight skips marked," &c. The eight skips mentioned in this letter were the skips now in question. It is admitted that Parsons filed an affidavit of his having a good defence on the merits, and on the return of the trader-debtor summons, viz., on the 12th of October, 1864, appeared before the Bankruptcy Court and resisted the application on the said ground, and stated he would stop payment if the summons was proceeded with, and thereupon an order was made for him to give security for the debt and costs of any action which might be brought. On the 19th of October Parsons petitioned the Bankruptcy Court, and on the same day was duly adjudicated a bankrupt. On the same day Wolstencroft wrote to the defendants the following letter:

"The eight skips lying in the cellar at your station, please let them continue there to my order." On the 21st of October the officer of the Court of Bankruptcy demanded the goods from the defendants, and gave them notice not to part with them, as they were claimed by the assignee under Parsons's bankruptcy, and the defendants' clerk thereupon shewed to the said officer an entry in the defendants' books stating that the same goods were claimed by Wolstencroft. On the 21st of October Wolstencroft sent to the defendants an order for the delivery of the goods to him. On the 29th of October the goods were delivered by the defendants to Wolstencroft. The first meeting of Parsons's creditors in bankruptcy for proof of debts, was held on the 1st of November, 1864, when Wolstencroft's attorney tendered a proof for 3197. 8s. 11d., which, being objected to on account of the discrepancy in the amount claimed by the letter of the 26th of August, 1864, and that claimed by the proof, it stood over till the next meeting, and has never since been presented, nor has Wolstencroft proved his debt. On the 5th of December the attornies for the plaintiff wrote to the defendants a letter demanding compensation for the eight skips. The defendants' attornies replied that they were instructed to defend any proceedings which might be commenced.

The question for the opinion of the Court