Judgment by H. M. Full Court was given on November 22 [favour of plaintiffs-appellants, the 'China Soap Company Ltd., against Murden & Ca,, Ltd, defendants-respondents, all' three judges concurring. Sir Peter Grain first read the judgment of Mr. Justice Wood, and after Judge King had read ' his judgment, Sir Peter delivered his own, Mr. John McNeill appeared for appellants and Mr.
Reader-Harris for respondents, Sir Peter Grain found as follows:—
In this matter I propose only to give a very short judgment as my Tearned collogues have upheld my decision on the two chief legal points argued before me.
Namely, I found that the defendants were not in law common carriers and that the facts of the ease were not, such as ul called tur" that itself is such as necessarily to in volve negligence without having to rove or disprove it.
In my judgment in the first instance I stated "the burden of proving negligence plaintiffs who alleges sit is not} it for the to excuse]
defendant himself by proving that the acident or loss was due to no negligence en his part."
That statement was not correct, 'A case vhich was not cited on the hearing inthe first instance has now been cited before us. Namely, Joseph Travers & Sons' Limit ed y, Cooper (1915) 1, KB. 73. which was a case concerning goods a ligh In this case it was uncertain whether the loss of the goods was duo to the negligence of the ligher-man. The three Judges in the Court of Appeal held that the onus lay on the defendant who was in possession of the goods as haile to show! that the negligence of his servant did not cause the loss.
In the case now before us there' is mo doubt that the defendants, were bailees of the goods on the lighter.
Here again it is doubtful when ther there was negligence on the part of the defendant's servants such as to cause the loss.
But to follow the case I have already ruled the onus is upon the: defendants to prove that the loss, was not caused by their negligence.
Beth my learned brothers come to the conclusion on the evidence that the defendants have failed to discharge that onus. It is a matter of opinion on the facts:
before us, a question on which there might well be two opinions. But I do not desire to differ from my learned brothers in the opinion they have formed and therefore agree with them that this appeal be allowed with costs here and in the Court below,
Text read from the printed page and cleaned; old type leaves the occasional error.