Page:The Green Bag (1889–1914), Volume 05.pdf/417

 Green Bag.

384 NOTES OF CASES.

NEGLIGENCE — " SPAWLS." — In Parish i>. Wil liams, Supreme Court of Iowa (55 N. E. Reporter, 74), an action against a blacksmith for personal injuries caused by a " spawl " from defendant's hammer striking plaintift's eye. it being alleged that defendant was negligent in working at an anvil opposite his shop-door, and six feet away from the sidewalk, it was held error to direct a verdict for defendant, as there was evidence by experienced blacksmiths that "spawls " frequently fly from their hammers, and go a long distance, and sometimes inflict serious wounds, and that they cannot control their direction. The court said : — "If we are to sustain the action of the court, the effect of our holding will be to say that the anvil may be kept there, as a matter of law, and that passers-by are to take the chances against other like occurrences. We are not aware of any case where such a rule has been sustained. We notice a single case, cited by appellee, to indicate the line of authorities relied upon to sustain the ruling of the court. It is that of Losee v. Buchanan (51 N. V. 476). By the explosion of a boiler the pieces were thrown onto the premises and into the buildings of plaintiff. Plaintiff claimed a right of recovery, even without negligence, on the ground that the casting of the pieces onto his premises was in the nature of a trespass, and that a right of recov ery should be the same as in case of wrongful entry. The court refused to sanction such a rule, and rightly so, hold ing that negligence must be shown, to justify a recoverv. Tue court used this language : ' We must have factories, machinery, dams, canals, and railroads. They are de manded by the manifold wants of mankind, and lay at the basis of our civilization. If I have any of these upon my lands, and they are not a nuisance and are not so managed as to become such, I am not responsible for any damages they accidentally and unavoidably do my neigh bor. ... I hold my property subject to the risk that it may be unavoidably and accidentally injured by those who live near me; and as I move about upon the public highways, and in all places where other persons may law fully be, I take the risk of being accidentally injured in my person by them without fault on their part.' It is further said in the opinion : ' 1 have so far found no authorities and no principles which fairly sustain the broad claims made by plaintiff (stated supra) that the defendants are liable in this action, without fault or negli gence on their part to which the explosion of the boiler could be attributed.' The gravamen of the complaint in this case is negligence, and there is no attempt a-t a recov ery upon any other ground. It is said in argument — with a view, evidently, to bring it within that case — that there is no claim that the blacksmith shop is a nuisance. Not perhaps in specific terms; but the averments, if true, making the manner of its operation dangerous to the public safety, render it a nuisance, and the distinction between the cases is to be maintained throughout. We hold it to be purely a question of a right of recovery on the ground of negligence, and we are clearly of the opinion

that the state of the evidence is such that the case should have been submitted to the jury." The manifest distinction between the two cases is this, — the employment of a steam-boiler is not neces sarily nor intrinsically dangerous to an adjoining proprietor; but the hammering of hot iron six feet from a thronged sidewalk is unavoidably dangerous, and thus a nuisance. We have poetical authority for the proneness of sparks to fly upward. Long fellow sings, in " The Village Blacksmith " : — "And children, coming home from school, Look in at the open door; They love to see the flaming forge And hear the bellows roar, And catch the burning sparks that fly Like chaff from the threshing-floor."

WHAT is A "FAIR"? — In Collins 7'. Cooper, Q. B. Div., 68 Law Times Rep. 450, the defendant, occupying lands within the borough of Walsall, on certain days (one being a regular fair day) without the license of the corporation, brought on to his land and used certain swing-boats, roundabouts, shootinggalleries, and many other contrivances for the amuse ment of the people. These contrivances were the property of different persons, and it was not proved that such persons made any payment to the defendant for the use of the land, or that there was any buying or selling of goods, or exposing the same for sale thereon. The defendant was convicted of permit ting the holding of a " fair " on his land. Held, by Bruce, J., improper, and by Lawrance, J., proper; and Bruce, J., having withdrawn his judgment, the convic tion stood. Bruce, J., said, among other things : — "The appellant, on the 24th, 26th, and 2/th Sept., 1892, brought on to land in his occupation, in the bor ough of Walsall, a' number of swings, roundabouts, shoot ing-galleries, an electric light-apparatus, a wild-beasl show, a ghost exhibition, a baby show, and various con trivances for the amusement of the people. There is no evidence that the appellant received any money for the use of the land by the proprietors of these contrivances, nor was there any evidence that any goods were offered for sale on the said land, or that there was any buying or selling of goods on the land. The justices, on this evi dence, convicted the appellant of holding a fair on the land. In my opinion, there was no evidence to justify this conviction. The word ' fair ' is a well-known term in law. and it is, so far as I can ascertain, always used in connection with the buying and selling of merchandise, cattle, or other commodities. In all the cases that I can find the right to hold a fair is a right to hold a fair for the buying and selling of goods or cattle. There is one case alluded to in the report where the Abbot of Abingdon was, in the fourteenth year of King John, summoned to show what right he had in the fair of Ealingford, which the Earl of Albemarle said was to the damage of his fair