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evidence on which they may properly find facts and draw inferences such that they may find for the party against whom the onus lies; or that, even though they believe the whole of what is sworn to, there is no evidence on which they can properly find the question for that party on whom the onus of proof lies, and, therefore, to direct them to find the verdict against that party. His direction either way is subject to review. I quite agree that it is not enough that the balance of testimony should be overwhelmingly on one side, and that therefore a verdict the other way ought to be set aside as unsatisfactory. To justify a direction to find a verdict, the onus must be one way, and no reasonable evidence to rebut it. My Lords, I think the recent decision of your Lordships' House in Metropolitan Railway Co. v. Jackson (L. R. 3 App. Cas. 193) conclusively establishes this doctrine in cases in which the onus was, on the issue as joined on the record, on the party against whom the verdict was directed. I am of opinion that it is equally so when a fact found, or undisputed at the trial, has shifted that onus." Lord Cairns, L.C., on this point says: "The Appellants contend that even assuming that there was negligence on their part in not whistling, still that on the facts which were not in controversy, the judge should have ordered the verdict to be entered for them, because the deceased either did see or might have seen the advancing train, and it was therefore his carelessness and not that of the Appellants which caused the accident. My Lords, I should by no means wish to say that a case in which such a course should be taken might not arise, and indeed had the facts in the present case been only slightly different from what they are, I should have been disposed to accede to the Appellants' argument. 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." That is to say, in such a state of circumstances the judge ought to direct a verdict for the defendants, on the ground that the plaintiff's own negligence was the proximate or decisive cause of his death. And Lord Hatherley says: "I will, in the first place, state my concurrence with Mr. Justice Barry's opinion in the Court below, viz. 'Where once a plaintiff has adduced such evidence as, if uncontradicted, would justify and sustain a verdict, no amount of contradictory evidence will justify the withdrawal of the case from the jury.' But I concur, also, in the opinion expressed by Chief Baron Palles, that 'Where there is proved, as part of the plaintiff's case, or proved in the defendant's case and admitted by the plaintiff, an act of the plaintiff which per se amounts to negligence, and when it appears that such act caused or directly contributed to the injury, the defendant is entitled to have the case withdrawn from the jury.'" And further he says: "Such a defence"-i.e. contributory negligence-"must be proved by the party asserting it. But if such contributory negligence be admitted by the plaintiff, or be proved by the plaintiff's witnesses while establishing negligence against the defendants, I do not think there is anything left for the jury to decide, there being no contest of fact." And, dealing with the evidence in the case before the House, he says: "Assuming that she (the plaintiff) had proved negligence on the part of the defendants in not whistling, she had likewise proved negligence on the part of the deceased in crossing a line of railway without looking to see if the line was clear; and though the jury might infer that had the engine whistled the man would not have crossed, yet this could be no answer to the observation that in crossing he did not take the ordinary precautions, which every reasonable man would take, of looking to see whether the line was clear."

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The question whether the doctrine of contributory negligence applies in the case of young children has occasioned some diversity of judicial opinion, and it seems impossible to reconcile all the cases on this subject. There are two classes of case, viz. (1) where the child is not at the moment under the immediate control of any adult person, and (2) where the child is at the time in the charge of an adult person, and becomes involved in the consequences of the contributory negligence of such person. In the former case the earliest reported decision is Lynch v. Nurdin [1841] (1 Q. B. 29), in which the facts were as follows. defendant's cart was left unattended in the street. plaintiff, who was under seven years of age, in company with some other young children, came up and began to play about it. The plaintiff climbed upon the cart, and whilst he was getting down again another of the children caused the horse to move on, with the result that the plaintiff fell, and the wheel went over his leg. A plea of contributory negligence was relied on, and Denman, C.J., in delivering the judgment of the Court (viz. Denman, C.J., and Littledale Williams and Coleridge, JJ.), says: "But the question remains, can the plaintiff, then, consistently with the authorities, maintain his action, having been at least equally in fault? The answer is, that supposing that fact ascertained by the jury, but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blameable carelessness of his servant having tempted the child, he ought not to reproach the child with yielding to that temptation. He has been the real and only cause of the mischief. He has been deficient in ordinary care: 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. His misconduct bears

no proportion to that of the defendant which produced it." Next in order of date is Gardner v. Grace [1858] (1 F. & F. 359), a nisi prius decision of Channel, B., in which he says: "The doctrine of contributory negligence does not apply to an infant of tender age. To disentitle the plaintiff to recover, it must be shown that the injury was occasioned by his own negligence." Then came the case of Hughes v. Macfie [1863] (2 H. & C. 744; 33 L.J. Ex. 177), in which the following facts were proved. On one side of the street, on which a warehouse was standing, there was no footpath, the road shelving down from the warehouse to the gutter. The warehouse cellar extended under the street, from which there was an opening into the cellar covered, when not in use, by a flap. The flap had, at the time of the accident, been removed for the purpose of allowing casks to be lowered into the cellar, and had been placed nearly upright against the wall. The plaintiff, who was seven years old, was playing with others. He had climbed on the upright flap, and in jumping down his clothes caught in the flap, which fell upon and injured him. Pollock, C.B., in delivering the judgment of the Court (Pollock, C.B., and Bramwell, Channel, and Pigott, BB.), said: "The flap was pulled over by the plaintiff, a child of tender years, by playing on it and jumping from it, when it fell upon him and hurt him severely. Had he been an adult it is clear he could have maintained no action. He would voluntarily have meddled for no lawful purpose with that which, if left alone, would not have hurt him. He would, therefore, at all events have contributed by his own negligence to his damage. We think the fact of the plaintiff being of tender years makes no difference. His touching the flap was for no lawful purpose, and if he could maintain the action he could equally do so if the flap had been placed inside the defendant's premises within sight and reach of the child. . . . Cases were referred to supposed to be in favour of the plaintiff. We think none are decisive of

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this case, and no case establishes a principle opposed to our view, which is that the nonsuit was right."

Subsequently to this came Lay v. Midland Railway Company [1875] (34 L. T. N.S. 30), in which the plaintiff, who was about five years old, went with another child upon the foot-bridge which crossed the defendants' railway and adjoining road. The bridge was fenced on both sides with wooden hoardings, and, where it crossed the road, with open ornamental iron-work having triangular interstices large enough for the body of the child to pass through. The plaintiff, instead of walking straight forward, placed his back against the hoarding and slid along it until he came to the ornamental iron-work, when he fell backwards through one of the openings into the road below and was injured. In the course of the judgments Kelly, C.B., said: "As to the question of contributory negligence, I agree with what was said by the counsel for the defendants, that if such was proved it would disentitle the plaintiff to recover in this action; but even if we take it that this is negligence in the case of a grown-up person, the question then arises, is it so in the case of a young child aged seven years? I am of opinion it is not." Cleasly, B., said: "As to the question of contributory negligence, there is here an act done by the plaintiff contributing in some degree to the accident; but I do not think that in the case of so young a child you can say it amounted to contributory negligence, as I cannot see that it was the act of the plaintiff that alone caused the accident." And Pollock, B., said: "As to the question of contributory negligence, I do not say, as a point of law, that there is any distinction between contributory negligence in the case of a child and of a grown-up person, although I do not altogether dissent from what was said on that point by the Chief Baron, that, as a matter of fact, something might be done by a young child not amounting to contributory negligence, which, if done by a grown-up person, would amount thereto."

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