is allowed therein is called a right, the obligation of restraint a duty,
and these terms are purely relative, each implying the other"
(Beven on Negligence, 4th ed. (1928), vol. r., p. 8). The law imposed
upon the respondent the duty of taking reasonable care not to
injure the appellants' shop front in exercising its right to use the
street for vehicular traffic. The question therefore is whether the
respondent failed in that duty. Willes J. said: "' Negligence is the
absence of care, according to the circumstances " (Vaughan v. Taff
Vale Railway Co. (1)). Bramwell B. said: " There is no absolute or
intrinsic negligence ; it is always relative to some circumstances of
time, place, or person " (Degg v. Midland Railway Co. (2)). It cannot
be said baldly that it is negligent to drive a wide cart along a narrow
street. But what is to be said of the act of driving a cart into a
street where there is barely room for it to pass and, although carefully
driven, it scrapes and damages the shop fronts ? If the facts do not
show that it was a malicious act, they might well establish that
" it was a default amounting to negligence. The present case is not
one of that enormity. But the learned County-Court judge found
as a fact that the driver had no room to manoeuvre the dray when
the horse became restive, however skilfully he controlled the horse.
In my opinion it was negligent for the respondent's driver to take
that cart into that street, because, however carefully he drove, he
should have foreseen that, if any ordinary thing of the kind which
would cause a horse to jib or become restive were encountered, it
was inevitable that any such jibbing or restiveness would cause the
cart to bump the appellants' shop front and damage it. To quote from
an old pleading, the gist of the negligence is in driving absque debita
consideratione ineptitudinis loci (Mitchil v. Alestree (3) ).