Lowery v Walker

LORD LOREBURN L.C. My Lords, I think this case should be determined upon the actual findings of the learned county court judge. It is true there has been some question about what he decided, and it appears that some little time after he had delivered the judgment he made an alteration in regard to a phrase he had used. I think it was quite legitimate to do so, because the word he used was capable of being misunderstood, or understood in one sense rather than in another, and I see no objection to his explaining to the Court and to the parties the sense in which he used the word.

He has found certain facts. He has not found them according to the letter of legal phraseology, but he has presented to us a view of the facts; and I think what that view - by which we are bound - amounts to is this: He will not find whether there was a right of way or not; therefore the plaintiff did not establish that he was in the field according to a right to be in the field. Again the learned judge, I think, found that there was no express leave given to the plaintiff to be in that field; but I think the effect of his finding is that the plaintiff was there with the permission of the defendant, because he finds that the field had been habitually used by the public as a short cut, and he says that the defendant was guilty of negligence in putting a horse which he knew to be dangerous into a field which he knew was habitually used by the public. That being the case, we ought not to refine upon the language which the learned judge has used. Perhaps it would have been better - indeed I think it would have been better - had he been more explicit in saying what it was that he did find and what it was that he did not find; but I think in substance it amounts to this: that the plaintiff was not proved to be in this field of right; that he was there as one of the public who habitually used the field to the knowledge of the defendant; that the defendant did not take steps to prevent that user; and in those circumstances it cannot be lawful that the defendant should with impunity allow a horse which he knew to be a savage and dangerous beast to be loose in that field without giving any warning whatever, either to the plaintiff or to the public, of the dangerous character of the animal.

My Lords, I will not enter upon the further field of law - itself somewhat wide and not free from many difficulties - because I do not think the facts of this case require it.

Under those circumstances and for those reasons I think the appeal ought to be allowed.

EARL OF HALSBURY. My Lords, I entirely…