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It seems obvious that, notwithstanding the assertion of Pollock, C.B., to the contrary, the principle laid down in the earlier cases of Lynch v. Nurdin and Gardner v. Grace is not reconcilable with the decision in Hughes v. Macfie. In this conflict of judicial authority one has to inquire what the true principle is. As was said by Bramwell, B., in Degg v. Midland Railway Co.  (1 H. & N. 773): “There is no absolute or intrinsic negligence; it is always relative to some circumstance of time, place, or person.” Thus, if a person riding a noiseless bicycle were, without warning, to collide with a man who was crossing the street in broad daylight, it might be that the man in the street ought to have seen the bicycle and got out of the way, and, accordingly, that his own negligence was the decisive cause of the collision. But if the man in the street happened to be blind, would it not be manifestly absurd to apply the same rule to him? Or, to take the case put by Lord Cairns in Dublin, Wicklow, & Wexford Railway Co. v. Slattery: “If a railway train, which ought to whistle when passing through a station, were to pass through without whistling, and a man were, in broad daylight, and without anything, either in the structure of the line or otherwise, to obstruct his view, to cross in front of the advancing train and to be killed, I should think the judge ought to tell the jury that it was the folly and recklessness of the man, and not the carelessness of the company, which caused his death. . . . But, in the present case, the facts are materially different. It was not in the daytime, but at night, although the night was clear. As the deceased stood, on the platform of the station, he was behind the train which was at rest, and probably would not see the train which was advancing. When he reached the six-foot way he might, no doubt, have seen the advancing train had he stopped and looked to his left. But then he appears to have been in an anxious and perhaps flurried state of mind, desiring to bring his friend across in time to obtain a ticket for the train, which was in
the station, and was about to leave. He might, therefore, be supposed, when he got to the six-foot way, to have omitted in his haste the precaution of stopping and looking up the line to his left; while, on the other hand, had the advancing train whistled, as on this hypothesis it failed to do, his attention would have been called to the danger and his movement across the line might have been arrested. Now, I cannot say that these considerations ought to have been withdrawn from the jury.” Lord Cairns was here dealing with the question whether the case ought to have been withdrawn from the jury on the ground that the admitted facts established contributory negligence on the part of the plaintiff. But his remarks also point to this, that time and surrounding circumstances and the state of mind of the individual may all be factors in determining the character of his act. And if the mental state of an adult, produced by the circumstances of the moment, is an element to be taken into account in determining to what extent he is to be held responsible for his acts, does it not follow that the mental state of a young child whose reason has not yet matured ought also to be considered, in determining whether the acts of the child amount to negligence in fact? This seems to have been the ground of decision in Lynch v. Nurdin, for Denman, C.J. says: “The child, acting without prudence or thought, has, however, shown these qualities in as great a degree as he could be expected to possess them.” And in Crocker v. Banks (1888] (4 T. L. R. 324), where a girl aged seventeen, who was employed in a sodawater factory, was injured by the bursting of a bottle, it was relied on, as contributory negligence on her part, that at the time of the accident she was not wearing a mask, although masks were provided for her and the other employees by the manufacturer. Lord Esher, M.R., says: “Then, was the plaintiff guilty of contributory negligence in not putting on the mask? She had sworn that she did not know of the danger, or that it was necessary to wear the mask at that
particular period, and therefore the jury were not bound to say that she was negligent. It was not negligence for a girl of her age to omit to put on the mask if she did not know that she was bound to do so at that period of the operation.” This case also, therefore, seems to show that the age of the plaintiff ought to be taken into account in determining whether there was in fact contributory negligence: and it seems, therefore, to set up Lynch v. Nurdin rather than Hughes v. Macfie. And so in Harrold v. Watney (1898] (2 Q. B. 320), where the defendant was the owner of a fence abutting on a highway, and 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 causing the fence to fall upon him, the Court of Appeal upheld a verdict for the plaintiff in respect of personal injuries thereby caused to him. In that case A. L. Smith, L.J., referring to the case of Lynch v. Nurdin, says:
“That case has never been overruled, but has been treated in subsequent cases as sound law." Fewson v. Gatti (1886] (2 Times L. R. 381, 441) is also relied on by the Court as supporting it. Gatti occupied a cellar in Maidenlane where workmen of his were engaged in scene-painting. The area over the cellar was open and there was a protecting bar round the opening. The plaintiff, a little girl, was leaning against the rail watching the men at their work, when the rail gave way, and she fell into the area and was injured. A nonsuit was entered at the trial. But this was set aside and a new trial ordered on the ground that it was a case for the consideration of the jury.
In the other set of circumstances referred to, viz. where the child being in the charge of an adult is involved in the consequences of the contributory negligence of the adult, the leading case is Waite v. North Eastern Railway Co.  (El. B. & El. 719, 728). There a child five years old was going by train with its grandmother. They were crossing the line to get to the platform from which they were to start ;
and whilst so doing they were struck by a passing train. The grandmother was killed and the child injured. In an action by the child against the Railway Company the jury found that there was negligence on the part of the defendants, and also negligence on the part of the grandmother contributing to the accident. On these findings it was held that the child could not recover. Lord Campbell, C.J., in delivering the judgment of the Court of Queen's Bench, put it on the ground that if the grandmother had survived she could not have maintained any action against the company; and the infant was so identified with her that the action in his name could not be maintained either. In the Exchequer Chamber, Cockburn, C.J., says: “I put the case on this ground, that when a child of such tender and imbecile age is brought to a railway station, or to any conveyance for the purpose of being conveyed, and is wholly unable to take care of itself, the contract of conveyance is on the implied condition that the child is to be conveyed subject to due and proper care on the part of the person having it in charge. Such care not being used, where the child has no natural capacity to judge of the surrounding circumstances, a child might get into serious danger from a state of things which would produce no disastrous consequences to an adult capable of taking care of himself. Here the child was under the charge of his grandmother, and the company must be taken to have received the child as under her control and subject to her management.” This decision seems to have been acquiesced in, in the case of "The Bernina” (L. R. 12 P.D. 58: 13 App. Cas. I), though it is difficult to see upon what sound principle an infant who ex concessis cannot be guilty of contributory negligence himself is to be without remedy against a wrongdoer whose negligence jointly with that of a third person causes injury to the infant.
G. D. KEOGH.
b to give information by the use of torture. It is the
IV.-CRIMINAL STATISTICS, 1897. ACON says somewhere that Nature can only be made
. same with statistics, and what is more, by a judicious use of the rack they can be made to give any answer which the inquirer may wish to get. Statistics are useless without a guide, and considering how easy it is to distort their teaching, a trustworthy and impartial guide is of the first importance. Fortunately students of the criminal statistics are well off in this respect. Ever since the form of these statistics was overhauled and brought up to date in 1893, the annual volumes have each been furnished with an introduction giving the chief deductions to be drawn from the figures, not only in themselves, but as compared with previous years, and their bearing on general questions of crime and criminology. These introductions are of the utmost value, and this year's is no exception. They give admirable reasoned summaries of results, and the writers, being men of experience in the administration of the criminal law, possess a technical knowledge of the subject matter of the statistics which enables them to throw much light on the true inferences to be drawn from the various figures. A good instance of the value of such knowledge is to be found in the introduction for 1894. The editor points out that cases of burglary and housebreaking on the one hand, and arson on the other, are alike in showing a very small percentage of convictions as compared with the number of crimes committed, but that entirely different inferences must be drawn in the two cases. " While the fact that under burglary and house-breaking there is only twenty-two per cent of convictions merely represents the fact that one burglar commits many offences before he is punished for one of them ; the same percentage