and proximate consequence of the defendants' negligence. The facts showed that the defendants' man with the steam roller was there, and could, if he had been asked, have given the driver a pull. And the driver apparently made no effort to lighten his load. He simply chose to chance the obvious risk of straining his horses and wagon when he had equally obvious means of trying to avoid this risk, none of which he endeavored to take. Lord Alverstone held that the damage was not the natural and necessary consequence of the defendants' negligence, because the driver had so elected, and this view was affirmed by the Court of Appeal. The case is no authority as to whether the plaintiff could have recovered had the driver tried other means, and failed.

The principle on which damages are recoverable is that they must be the natural and reasonable consequence of the act or omission complained of. That is true restitution. If further or other loss is sustained through the plaintiff's own rashness or imprudence, that is not attributable to the defendant, and he is not responsible for it. Jones v. Boyce (1816) 1 Stark, 493, 18 Revised Rep. 812; Clayards v. Dethick (1848) 12 Q. B. 439, 116 Eng. Reprint, 932; and The City of Lincoln (1889) 15 P. D. 15, at p. 18, 59 L. J. Prob. N. S. 1, 62 L. T. N. S. 49, 38 Week. Rep. 345, 6 Asp. Mar. L. Cas. 475, are authorities for this. If a man by his wrongful act places another in a position where he must sustain what the law regards as damage, the sufferer is entitled to act reasonably for his own benefit, and any loss he sustains in so doing is part of the ordinary course of things. for which the wrongdoer is responsible. But he is also bound towards the wrongdoer not to act unreasonably either in increasing [199] or in omitting to mitigate the loss. In Grant v. Owners of S. S. Egyptian [1910] A. C. 400, at p. 402, Lord Shaw says: "The defendants are liable for the damage which is the natural and direct consequence of their wrongful act the defendants are not liable for any further damage which could have been avoided or minimized by the exercise of reasonable care on the part of the plaintiffs." To the same effect is the British Westinghouse Electric and Manufacturing Co.'s Case [1912] A. C. 673, at p. 689, 81 L. J. K. B. N. S. 1132, 107 L. T. N. S. 325, 56 Sol. Jo. 734, per Lord Haldane, L.C.

It is clear, therefore, that the case of Torrance v. Ilford Urban District Council (1909) 73 J. P. 225, 25 Times L. R. 355, 99 L. T. N. S. 847, 53 Sol. Jo. 301, 7 L. G. R. 554, has nothing to do with the question of mere liability, and does not affect the question discussed in this appeal of volenti non fit injuria in the sense of absolving the appellants from any duty of care towards Richardson.

(4) The Facts as to Knowledge.-The learned trial Judge, Buchanan, J., found as a fact that the deceased knew the danger. If that finding were, in our opinion, a proper one, it would, of course, end the case. Not only in the leading case, but in others, "knowledge" of the danger is accepted as placing the sufferer outside the limit of the invitor's duty of care. A man who knows does not require telling. Gautret v. Egerton (1867) L. R. 2 C. P. 371, 36 L. J. C. P. N. S. 191, 16 L. T. N. S. 17, 15 Week. Rep. 638, and Cavalier v. Pope [1906] A. C. 428, 75 L. J. K. B. N. S. 609, 95 L. T. N. S. 65, 22 Times L. R. 648, 7 Ann. Cas. 713, have been referred to; Crafter v. Metropolitan Railway Co. (1866) L. R. 1 C. P. 300, at p. 303, 35 L. J. C. P. N. S. 132, 1 Harr. & R. 164, 12 Jur. N. S. 372, 14 Week. Rep. 334, decided before Indermaur v. Dames (1866) L. R. 1 C. P. 274, (1867) L. R. 2 C. P. 311, 36 L. J. C. P. N. S. 181, 16 L. T. N. S. 293, 15 Week. Rep. 434, 19 Eng. Rul. Cas. 64, in the Common Pleas, assumes the same thing.

First of all, the evidence as it stands at present-it may be entirely different on the next trial-shows no proper ground for finding affirmatively that Richardson did know the condition of the rails. He was not in the position of Boyce, inspecting on foot and looking at the rails for the very purpose of testing whether the road had been kept reasonably free from danger. Unless he knew or had notice of the defect--if defect there was -he was entitled to assume that the appellants had taken all reasonable care to make the road reasonably safe for him as long as he exercised such care as was reasonable in the usual condi tion of a railroad properly looked after. He was not put upon inquiry, [200] so to speak. And as his duties kept him busy with his wagon, his horses, and his load, and the surrounding objects, the mere fact that Boyce could see the true condition of the rails while on foot is not enough, in view of all the other

circumstances at present appearing, to satisfy my mind as a judge of fact that Richardson did know the danger he was encountering. As Boyce's evidence is admittedly the strongest in appellants' favor, and as other evidence militates against whatever force it has, it is unnecessary to say more as to the affirmative finding of knowledge. That would not, however, end the matter. The burden, slight as it is, in this case, of proving the absence of knowledge, is on the plaintiff, and this point was not lost sight of in the Supreme Court. But the actual spot was not the usual place frequented by Richardson; and, having regard to all the relevant considerations, it appears to be the better and more satisfactory conclusion, on the evidence as it at present stands, that the deceased was not aware of the defect complained of. This conclusion can, of course, in no way affect the case upon the new trial, because additional or qualifying circumstances might materially alter the ultimate result. And in accordance with the ordinary practice in such cases, all detailed examination of the facts and probabilities are omitted.

The appeal should therefore be dismissed.

Appeal dismissed, with costs. Order appealed from varied by directing that the appellants should pay the costs of the first trial and of the motion for a new trial.

Solicitors for the appellants: Bakewell, Stow, & Piper. Solicitors for the respondent: Denny & Villeneuve Smith.

Note. The inclusion of the foregoing decision in this series is prompted by the fulness of its definition of the duty of the occupier of premises to invitees thereon, and to the fact that it points out that the ordinary formula that it is the duty of the occupier to keep the premises in a reasonably safe condition does not fully state the law, but that such duty may be discharged as well by giving notice of the dangerous condition of the premises as by making them reasonably safe.

From this proposition there appears to be no room for dissent. It is equally the duty of the invitee to exercise reasonable care for his own safety, and the degree of circumspection which will exonerate him of this duty is affected by his knowledge of the dangers. likely to be encountered.

Notice to the invitee of the dangerous condition of the premises must, however, be adequate and timely (see, for example, Brosnan v. Sweetser (1891) 127 Ind. 1, 26 N. E. 555; Drennan v. Grady (1897)

167 Mass. 415, 45 N. E. 741, 1 Am. Neg. Rep. 76; Dush v. Fitzhugh (1879) 2 Lea, 307; Hendricken v. Meadows (1891) 154 Mass. 599, 28 N. E. 1054; Weinhold v. Acker (1882) 17 Jones & S. 182, affirmed without opinion in (1885) 99 N. Y. 671); and it is not enough that he is made aware of the physical condition of the premises if the danger therefrom would not be apparent to a reasonably prudent person (see SOUTH AUSTRALIAN Co. v. RICHARDSON, ante, 52). Nor is notice of the danger sufficient to exonerate the invitor if, by reason of defective eyesight or other physical infirmity known by or apparent to the invitor or his employees, the invitee is unable to look out for himself (see Jones v. Charles H. Sagar Co. (1891) 37 N. Y. S. R. 346, 14 N. Y. Supp. 57; Brown v. Stevens (1904) 136 Mich. 311, 99 N. W. 12, 16 Am. Neg. Rep. 101).

Numerous annotations applying the general principles governing the duty of the occupant of premises to an invitee thereon, to various specific situations, may be found in the Indexes to L.R.A. Notes, title "Negligence," subtitle "Dangerous premises.” E. S. O.

Writ

Holograph writing on

paper wrapped round I O US Identification of documents referred to in writing Legatum liberationis.

The words, "I don't want this money paid up," in the handwriting of and signed by a deceased person, written on the back of a letter serving as a wrapper for several I O Us given her by her stepdaughter and stepdaughter's husband for loans of money, is a valid testamentary bequest of the loans vouched by the IO Us, which were sufficiently identified with the word "this" by the circumstances in which they were found.

(February 23, 1912.)

On 11th July, 1912, a special case was presented to the court by the Reverend William Dunnett and others, the trustees of the late Mrs. Jessie Finnie or Mitchell (first parties), and Mrs. Marion Mitchell or Pride, wife of William Pride, engineer,

Lincoln, and William Pride for his own interest (second parties).

The special case stated: "1. Mrs. Jessie Finnie or Mitchell, widow of Mr. William Mitchell, tobacco manufacturer, Kilmarnock, who resided at Ann Bank, Kilmarnock, died there on 6th January, 1911. No children were born of the marriage. Her husband, the said William Mitchell, had been previously married, and he left one daughter, Mrs. Marion Mitchell or Pride, one of the parties of the second part.

"2. On four occasions between the years 1895 and 1898 the said Mrs. Mitchell advanced sums on loan to her stepdaughter, the said Mrs. Pride, and her husband William Pride, engineer, Lincoln, receiving in return on each occasion an I O U signed by the said Mr. and Mrs. Pride. The dates and amounts of the said I O Us are set forth below, videlicet:

Said loans have not been repaid. Repayment thereof was never asked by Mrs. Mitchell, nor was any interest in respect thereof asked for or paid."

(Statement 3 of the special case mentioned that Mrs. Mitchell had left a will under which Mr. and Mrs. Pride were beneficiaries. The will contained no reference to the loans.)

"6. After the death of the said Mrs. Mitchell there were found in a cash box in the safe in her dwelling house, among other papers relating to her investments, the I O Us above mentioned, and certain other writings hereinafter described.

Her trust disposition and settlement was in the custody of her law agents at her death. The IOI's were found pinned together, with (at the back) a letter dated 19th March, 1897 (being the date of the IO U third above-mentioned), addressed by the said William Pride to Mr. Matthew Arbuckle, . acknowl

edging a letter from him with a cheque for 1007. from Mrs. Mitchell. The said I OU's and letter were folded so that the back of the letter was outermost, and on it was written in ink, in the handwriting of the said Mrs. Mitchell, the words, I don't