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Title: A Selection of Cases on the Law of Torts
Author: Smith, Jeremiah, Pound, Roscoe, Ames, James Barr
Language: English
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Copyright Status: Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook. See comments about copyright issues at end of book.

*** Start of this Doctrine Publishing Corporation Digital Book "A Selection of Cases on the Law of Torts" ***

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LAW OF TORTS ***



                          A SELECTION OF CASES
                                   ON
                            THE LAW OF TORTS


                                   BY

                   JAMES BARR AMES AND JEREMIAH SMITH


                             NEW EDITION BY

                              ROSCOE POUND
        CARTER PROFESSOR OF JURISPRUDENCE IN HARVARD UNIVERSITY


                               CAMBRIDGE
                        HARVARD UNIVERSITY PRESS
                                  1919



This edition was first published in four parts. Part I (pp. 1–167)
appeared September 25, 1916; part II (pp. 168–368), December 1, 1916;
part III (pp. 369–618), February 20, 1917, and part IV (pp. 619–1008),
April 23, 1917.

             Copyright, 1893 and 1909, by JAMES BARR AMES.
             Copyright, 1893 and 1909, by JEREMIAH SMITH.
             Copyright, 1910, by RICHARD AMES.
             Copyright, 1916 and 1917, by ROSCOE POUND.



                                PREFACE


The chief occasion for this edition is the change in the first-year
curriculum in Harvard Law School, which assigned to other courses many
things formerly appropriated to the course in the Law of Torts and hence
treated in former editions. Thus causation is now treated in a course on
the Principles of Legal Liability; certain excuses, such as consent and
self-defence, are dealt with in that course, and trespass to land and
conversion, which analytically might well be treated in the first
chapter of this book, have been thought more appropriate to the course
on the Law of Property. But the student should be warned that such
matters of arrangement do not inhere in the law. They are mere matters
of pedagogical expediency. He should bear in mind that the law is a unit
and should be on his guard against thinking of it as made up of separate
water-tight compartments. General principles which are of prime
importance in connection with the subjects treated in this book are
dealt with primarily in the courses on Property and on Criminal Law. Not
the least important task for the student is to seek constantly for these
relations between the subjects studied.

Again, the student should be warned that the arrangement proceeds upon
pedagogical considerations and does not seek to set forth an analytical
system. System is to be derived from study of the cases. The effort of
the student to make one in connection with his summaries for review and
his reading of the systematic discussions referred to in the notes will
do more for him than learning in advance a system laid out by some one
else. Similar reasons have led to omission of subheadings as far as
consistent with convenience, leaving it to the student to systematize
the main headings for himself. For other purposes an index is offered
instead.

In arrangement of the cases advantage has been taken of the experience
of the late Dean Thayer, who had given the matter anxious consideration
for some years. Indeed the instinct of Dean Ames for teachable cases,
the sagacity of Judge Smith in finding significant cases, and the
judgment of Dean Thayer in matters of arrangement left little of moment
for the present editor to do.

                                                            ROSCOE POUND

 CAMBRIDGE, July 18, 1917


NOTE. The present volume is a reprint of the edition of 1916–17 which
was not stereotyped and was soon exhausted. A few recent decisions have
been added in the notes. Otherwise there is no change.



                           TABLE OF CONTENTS


                                 PART I
            INTERFERENCE WITH THE PERSON OR TANGIBLE PROPERTY


                                CHAPTER I

 INTENTIONAL INTERFERENCE                                           PAGE
     Section 1. Assault and Battery                                    1
     Section 2. Imprisonment                                          19


                               CHAPTER II

 NEGLIGENT INTERFERENCE
     Section 1. Negligence as a ground of liability                   29
     Section 2. Interests secured                                     45
     Section 3. The standard of care                                  63
     Section 4. Proof of negligence                                   98
     Section 5. The Duty of Care—Misfeasance and Nonfeasance         120
     Section 6. Liability of occupiers of premises                   147
     Section 7. Liability to third persons of maker or vendor of a
                  chattel                                            228
     Section 8. Contributory culpable conduct of plaintiff           263


                               CHAPTER III

 UNINTENDED NON-NEGLIGENT INTERFERENCE
     Section 1. Trespass on land by animals                          404
     Section 2. Injuries by animals                                  419
     Section 3. Dangerous use of land                                452
     Section 4. Violation of statutory duty                          504


                                 PART II
  INTERFERENCE WITH GENERAL SUBSTANCE OR INTERESTS IN INTANGIBLE THINGS


                               CHAPTER IV

 DECEIT                                                              521


                                CHAPTER V

 MALICIOUS PROSECUTION AND ABUSE OF PROCESS                          620


                               CHAPTER VI

 DEFAMATION                                                          657


                               CHAPTER VII

 INTERFERENCE WITH PRIVACY                                           797


                              CHAPTER VIII

 INTERFERENCE WITH ADVANTAGEOUS RELATIONS                            807



                             TABLE OF CASES


                                                             PAGE
      Aiken _v._ Holyoke Street R. Co.                        337
      Akers _v._ Chicago R. Co.                               156
      Alden _v._ Wright                                       595
      Aldrich _v._ Scribner                                   576
      Allen _v._ Flood                                        939
      Allsop _v._ Allsop                                      808
      Andrews _v._ Jackson                                    555

      Bachelder _v._ Heagan                                   496
      Banks _v._ Braman                                       340
      Barnes _v._ Campbell                                    732
      Barr _v._ Essex Trades Council                          998
      Barrows _v._ Bell                                       729
      Beach _v._ Hancock                                        7
      Beals _v._ Thompson                                     749
      Beehler _v._ Daniels                                    225
      Beinhorn _v._ Griswold                                  415
      Bell _v._ Hansley                                        18
      Benedick _v._ Potts                                     115
      Bernina, The                                            352
      Bird _v._ Jones                                          24
      Bisaillon _v._ Blood                                    370
      Black _v._ New York, N. H. & H. R. Co.                  129
      Blood Balm Co. _v._ Cooper                              233
      Blyth _v._ Birmingham Waterworks Co.                     67
      Bolch _v._ Smith                                        177
      Bond _v._ Chapin                                        655
      Bostock-Ferari Amusement Co. _v._ Brocksmith            427
      Bosworth _v._ Inhabitants of Swansey                    379
      Bowen _v._ Hall                                         884
      Box _v._ Jubb                                           475
      Brattleboro _v._ Wait                                   510
      British Columbia Electric R. Co. _v._ Loach             302
      Bromage _v._ Prosser                                    662
      Brooker _v._ Coffin                                     683
      Brown _v._ Collins                                      482
      Brown _v._ Kendall                                       30
      Brown _v._ Randall                                      627
      Buch _v._ Amory Mfg. Co.                                160
      Bugg _v._ Wertheimer-Schwartz Shoe Co.                  549
      Bullock _v._ Babcock                                     95
      Burrill _v._ Stevens                                    548
      Butterfield _v._ Barber                                 595
      Butterfield _v._ Forrester                              274
      Butterly _v._ Mayor of Drogheda                         301
      Byne _v._ Moore                                         624

      Cabot _v._ Christie                                     584
      Campbell _v._ Boyd                                      183
      Campbell _v._ Spottiswoode                              769
      Carmody _v._ Boston Gas Light Co.                       113
      Carpenter _v._ Bailey                                   766
      Carr _v._ Hood                                          772
      Carskaddon _v._ Mills                                   191
      Carter _v._ Papineau                                    757
      Chambers _v._ Robinson                                  624
      Chapman _v._ Pickersgill                                644
      Child _v._ Affleck                                      738
      Cincinnati & Z. R. Co. _v._ Smith                       150
      Clark _v._ Molyneux                                     763
      Cleveland R. Co. _v._ Klee                              327
      Cleveland Rolling Mill Co. _v._ Corrigan                 88
      Cloon _v._ Gerry                                        632
      Clutterbuck _v._ Chaffers                               657
      Cole _v._ Turner                                         12
      Consolidated Traction Co. _v._ Hone                     371
      Cooke _v._ Midland G. W. Ry.                            173
      Cooley on Torts (2 ed.) 398–400                         409
      Cooper _v._ Seaverns                                    685
      Corcoran _v._ Corcoran                                  811
      Cordiner _v._ Los Angeles Traction Co.                  281
      Coward _v._ Baddeley                                     13
      Cox _v._ Burbidge                                       438
      Coxhead _v._ Richards                                   740
      Crowley _v._ Groonell                                   437
      Culbertson _v._ Crescent City R. Co.                    329

      Davies _v._ Gardiner                                    807
      Davies _v._ Mann                                        275
      Davies _v._ Solomon                                     809
      Davis _v._ Shepstone                                    792
      Decker _v._ Gammon                                      441
      DeGray _v._ Murray                                      434
      Delacroix _v._ Thevenot                                 659
      De Marentille _v._ Oliver                                15
      Deming _v._ Darling                                     553
      Denver Electric Co. _v._ Simpson                         77
      Depue _v._ Flatau                                       137
      Derry _v._ Peek                                         563
      DeS. _v._ DeS.                                            1
      Dickson _v._ McCoy                                      440
      Dilworth’s Appeal                                       502
      Dolphin _v._ Worcester Street R. Co.                     86
      Dorr _v._ Cory                                          551
      Doyle _v._ Vance                                        445
      Drown _v._ Northern Ohio Traction Co.                   296
      Dudley _v._ Briggs                                      859
      Dulieu _v._ White & Sons                                 50
      Dulin _v._ Bailey                                       852
      Dunshee _v._ Standard Oil Co.                           923
      Dyerson _v._ Union Pacific R. Co.                       324

      Eager _v._ Grimwood                                     866
      Eastern Trust & Banking Co. _v._ Cunningham             616
      Edgington _v._ Fitzmaurice                              537
      E. Hulton & Co. _v._ Jones                              674
      England, Maritime Conventions Act, 1911, § 1            274
      England, Workmen’s Compensation Act, 1906, § 1 (c)      269
      Evans _v._ Walton                                       868

      Fargo Gas & Coke Co. _v._ Fargo Gas & Electric Co.      608
      Fechley _v._ Springfield Traction Co.                   364
      Filburn _v._ People’s Palace & Aquarium Co.             422
      Fisher _v._ Bristow                                     627
      Fisher _v._ Feige                                       938
      Fletcher _v._ Rylands                                   452
      Flight _v._ Leman                                       651
      Flint & Walling Mfg. Co. _v._ Beckett                   120
      Foshay _v._ Ferguson                                    630
      Foss _v._ Hildreth                                      695
      Foster _v._ Charles                                     588
      Fotheringham _v._ Adam Express Co.                       23
      Fottler _v._ Moseley      599,                          601
      Freeman _v._ Venner                                     597
      Frost _v._ Eastern R. Co.                               170
      Fry _v._ Smellie                                        581
      Fuller _v._ Illinois Central R. Co.                     299

      Gahagan _v._ Boston & Maine R.                          317
      Galena R. Co. _v._ Jacobs                               267
      Gallagher _v._ Brunel                                   539
      Gallagher _v._ Humphrey                                 186
      Galveston, H. & S. A. R. Co. _v._ Spinks                495
      Garfield Coal Co. _v._ Rockland Lime Co.                202
      Garret _v._ Taylor                                      863
      Gautret _v._ Egerton                                    179
      Genner _v._ Sparkes                                      19
      Georgia Pacific R. Co _v._ Lee                          343
      Giles _v._ Walker                                       493
      Glamorgan Coal Co. _v._ South Wales Miners’ Federation  887
      Gorris _v._ Scott                                       516
      Grainger _v._ Hill                                      653

      Haddrick _v._ Heslop                                    639
      Halberstadt _v._ New York Life Insurance Co.            620
      Hankinson _v._ Bilby                                    661
      Hanson _v._ Globe Newspaper Co.                         665
      Hart _v._ Aldridge                                      864
      Hart _v._ Allen                                          42
      Hatchard _v._ Mège                                      813
      Heaven _v._ Pender      156,                            243
      Heege _v._ Licht                                        498
      Hemming _v._ City of New Haven                          398
      Herrick _v._ Wixom                                      149
      Hill _v._ Glenwood                                       71
      Holman _v._ Chicago R. I. & P. R. Co.                   506
      Holmes _v._ Missouri Pacific R. Co.                     328
      Horan _v._ Byrnes                                       928
      Hughes _v._ McDonough                                   829
      Hughes _v._ Samuels Bros.                               831
      Hulton & Co. _v._ Jones                                 674
      Hunicke _v._ Meramec Quarry Co.                         134
      Huset _v._ J. I. Case Threshing Machine Co.             235
      Hutchins _v._ Hutchins                                  847
      Hutchinson _v._ St. Louis & M. R. R. Co.                330

      Ibottson _v._ Peat                                      937
      Illinois Iron & Metal Co. _v._ Weber                     93
      Indermaur _v._ Dames                                    194
      Indianapolis Street R. Co. _v._ Dawson                  204
      Innes _v._ Wylie                                         13

      Jackson _v._ Hopperton                                  790
      J. deS. _v._ W. deS.                                      1
      Jersey City Printing Co. _v._ Cassidy                   897
      Joannes _v._ Bennett                                    747
      Joannes _v._ Burt                                       694
      Jones _v._ Charleston & W. C. R. Co.                    279
      Jones _v._ Littler                                      690

      Kearney _v._ London, B. & S. C. R. Co.                  102
      Keeble _v._ Hickeringill                                935
      Keffe _v._ Milwaukee & St. P. R. Co.                    165
      Keith _v._ Worcester Street R. Co.                       73
      Kellogg _v._ Chicago & N. W. R. Co.                     345
      Kelly _v._ Metropolitan R. Co.                          125
      Kidney _v._ Stoddard                                    561
      Klous _v._ Hennessey                                    846
      Knupfle _v._ Knickerbocker Ice Co.                      504
      Koplitz _v._ City of St. Paul                           362
      Kuzniak _v._ Kozminski                                  926

      Lake Erie & W. R. Co. _v._ Ford                          79
      Lary _v._ Cleveland R. Co.                              157
      Lawless _v._ Anglo-Egyptian Cotton Co.                  734
      Leathem _v._ Craig                                      952
      Lewis _v._ Corbin                                       849
      Low _v._ Bouverie                                       580
      Luetzke _v._ Roberts                                    598
      Lumby _v._ Allday                                       687
      Lumley _v._ Gye                                         874

      McComb _v._ Brewer Lumber Co.                           550
      McCord Rubber Co. _v._ St. Joseph Water Co.             493
      McNee _v._ Coburn Trolley Track Co.                     200
      McPherson _v._ Buick Motor Co.                          251
      McPherson _v._ Daniels                                  677
      Mabardy _v._ McHugh                                     613
      Mack _v._ Sharp                                         644
      Malachy _v._ Soper                                      816
      Marceau _v._ Rutland R. Co.                             106
      Marks _v._ Baker                                        755
      Marlor _v._ Ball                                        430
      Marshall _v._ Welwood                                   477
      Martell _v._ White                                      989
      Mason _v._ Keeling                                      433
      Maung Kyaw Dun _v._ Ma Kyin                             425
      Max Morris, The                                         269
      May _v._ Burdett                                        419
      Maynard _v._ Boston & M. R. R.                          147
      Meredith _v._ Reed                                       76
      Merivale _v._ Carson                                    775
      Metropolitan R. Co. _v._ Jackson                         98
      Midland Insurance Co. _v._ Smith                        841
      Milissich _v._ Lloyd’s                                  731
      Miller _v._ David                                       811
      Miners’ Federation _v._ Glamorgan Coal Co.              887
      Mitchell _v._ Jenkins                                   636
      Mogul Steamship Co. _v._ McGregor & Co.                 906
      Morse _v._ Hutchins                                     604
      Munster _v._ Lamb                                       697

      Nash _v._ Minnesota Title & Trust Co.                   572
      Nashua Iron & Steel Co. _v._ Worcester & N. R. Co.      288
      Neal _v._ Gillett                                       263
      Nehring _v._ The Connecticut Co.                        308
      Newcomb _v._ Boston Protective Dep’t.                   391
      Newman _v._ Phillipsburg Horse Car Co.                  366
      Nichols _v._ Marsland                                   468
      Nieboer _v._ Detroit Electric Ry.                       295
      Nocton _v._ Lord Ashburton                              578
      Norfolk & W. R. Co. _v._ Dean’s Adm’r                   320
      Northern P. R. Co. _v._ Jones                           278
      Note (Y. B. Lib. Assis. f. 104, pl. 85)                  19
      Noyes _v._ Colby                                        404

      Oates _v._ Metropolitan St. R. Co.                      294
      Oberlin _v._ Upson                                       16
      O’Keefe _v._ Chicago, R. I. & P. R. Co.                 321
      Osborn _v._ Veitch                                        6
      Osborne _v._ McMasters                                  513

      Padmore _v._ Lawrence                                   736
      Pasley _v._ Freeman                                     521
      Passaic Print Works _v._ Ely & Walker Dry Goods Co.     913
      Payne _v._ Chicago & A. R. Co.                          265
      Pearson & Son _v._ Lord Mayor of Dublin                 617
      Peck _v._ Tribune Co.                                   672
      Pickett _v._ Walsh                                      996
      Pickett _v._ Wilmington & W. R. Co.                     322
      Pierce _v._ Stablemen’s Union                          1004
      Pike _v._ Hanson                                         21
      Plant _v._ Woods                                        978
      Polhill _v._ Walter                                     592
      Pullman _v._ Walter Hill & Co.                          758
      Purcell _v._ Sowler                                     727

      Quinn _v._ Leathem                                      952

      Radley _v._ London & Northwestern R. Co.                283
      Ratcliffe _v._ Evans                                    854
      Ravenga _v._ Mackintosh                                 634
      Read _v._ Coker                                           3
      Rice _v._ Coolidge                                      710
      Richmond F. & P. R. Co. _v._ Martin’s Adm’r             374
      Roberson _v._ Rochester Folding Box Co.                 799
      Ryalls _v._ Leader                                      714
      Rylands _v._ Fletcher                                   452

      Scott, Collisions at Sea, 13 Law Quart. Rev. 17         273
      Scott _v._ Stansfield                                   695
      Schwabacker _v._ Riddle                                 606
      Seaman _v._ Netherclift                                 703
      Secor _v._ Harris                                       691
      Sheehan _v._ St. Paul & D. R. Co.                       154
      Sheffill _v._ Van Deusen                                659
      Shultz _v._ Old Colony Street R. Co.                    359
      Slater Trust Co. _v._ Gardiner                          574
      Smith _v._ Bolles                                       605
      Smith _v._ Hobson                                       694
      Smith _v._ Land Corporation                             560
      Snyder _v._ Andrews                                     658
      Southcote _v._ Stanley                                  222
      Southern R. Co. _v._ Grizzle                            127
      South Wales Miners’ Federation _v._ Glamorgan Coal Co.  887
      Spade _v._ Lynn & Boston R. Co.                          45
      S. Pearson & Son _v._ Lord Mayor of Dublin              617
      Stanley _v._ Powell                                      35
      Starkweather _v._ Benjamin                              612
      State _v._ Gordon                                       535
      Stearns _v._ Sampson                                     10
      Steele _v._ Burkhardt                                   388
      Steinmetz _v._ Kelly                                    334
      Stephens _v._ Myers                                       2
      Stevens _v._ Nichols                                    214
      Stevens _v._ Sampson                                    761
      Steward _v._ Gromett                                    625
      Stiles _v._ Geesey                                      282
      Stone _v._ Carlan                                       827
      Stone _v._ Dry Dock R. Co.                               90
      Sullivan _v._ Old Colony Street Ry.                      41
      Sutton _v._ Town of Wauwatosa                           381
      Sweeny _v._ Old Colony R. Co.                           207
      Swift _v._ Rounds                                       542

      Tarleton _v._ M’Gawley                                  864
      Thomas _v._ Bradbury, Agnew & Co.                       782
      Thorley _v._ Lord Kerry                                 679
      Tillett _v._ Ward                                       406
      Tomlinson _v._ Warner                                   646
      Tonawanda R. Co. _v._ Munger                            406
      Toogood _v._ Spyring                                    750
      Tracy _v._ Wood                                          83
      Troth _v._ Wills                                        448
      Tuberville _v._ Savage                                    2
      Tuttle _v._ Buck                                        918
      Tuttle _v._ Gilbert Mfg. Co.                            220

      Union Pacific R. Co. _v._ Cappier                       131
      United States _v._ Richardson                             6
      U. S. Compiled Statutes, 1913, § 8659                   269
      Usill _v._ Hales                                        716

      Vanderbilt _v._ Mathis                                  641
      Vaughan _v._ Menlove                                     63
      Vegelahn _v._ Guntner                                   968

      Wagner _v._ Bissell                                     410
      Wason _v._ Walker                                       720
      Watson _v._ Jones                                       582
      Weaver _v._ Ward                                         29
      Webb _v._ Beavan                                        682
      Welch _v._ Wesson                                       377
      Westminister Laundry Co. _v._ Hesse Envelope Co.        838
      Wetmore _v._ Mellinger                                  649
      White _v._ Carroll                                      707
      White _v._ Mellin                                       819
      Wilkinson _v._ Downton                                   58
      Williams _v._ State                                     558
      Williamson _v._ Freer                                   753
      Willy _v._ Mulledy                                      515
      Wing _v._ London General Omnibus Co.                    111
      Winterbottom _v._ Wright                                228
      Wood _v._ Lane                                           20
      Work _v._ Campbell                                      533

      Yates _v._ South Kirkby Collieries                       61
      Yerkes _v._ Northern Pacific R. Co.                      70



                             CASES ON TORTS



                                 PART I
           INTERFERENCE WITH THE PERSON OR TANGIBLE PROPERTY



                               CHAPTER I
                        INTENTIONAL INTERFERENCE


                               SECTION I
                          ASSAULT AND BATTERY


                    I. DE S. AND WIFE _v._ W. DE S.
           AT THE ASSIZES, CORAM THORPE, C. J., 1348 OR 1349.
    _Reported in Year Book, Liber Assisarum, folio 99, placitum 60._

_I. De S. & M. uxor ejus querunt de W. De S. de eo quod idem W. anno,
&c., vi et armis, &c., apud S., in ipsam M. insultum fecit, et ipsam
verberavit, &c._ And W. pleaded not guilty. And it was found by verdict
of the inquest that the said W. came in the night to the house of the
said I., and would have bought some wine, but the door of the tavern was
closed; and he struck on the door with a hatchet, which he had in his
hand, and the woman plaintiff put her head out at a window and ordered
him to stop; and he perceived her and struck with the hatchet, but did
not touch the woman. Whereupon the inquest said that it seemed to them
that there was no trespass, since there was no harm done. THORPE C. J.
There is harm, and a trespass for which they shall recover damages,
since he made an assault upon the woman, as it is found, although he did
no other harm. Wherefore tax his damages, &c. And they taxed the damages
at half a mark. THORPE, C. J., awarded that they should recover their
damages, &c., and that the other should be taken. _Et sic nota_, that
for an assault one shall recover damages, &c.[1]


                         TUBERVILLE _v._ SAVAGE
                IN THE KING’S BENCH, TRINITY TERM, 1669.
                   _Reported in 1 Modern Reports, 3._

Action of assault, battery, and wounding.[2] The evidence to prove a
provocation was, that the plaintiff put his hand upon his sword and
said, “If it were not assize-time, I would not take such language from
you.” The question was, if that were an assault? The court agreed that
it was not; for the declaration of the plaintiff was that he would not
assault him, the judges being in town; and the intention as well as the
act makes an assault.[3] Therefore, if one strike another upon the hand
or arm or breast, in discourse, it is no assault, there being no
intention to assault; but if one, intending to assault, strike at
another and miss him, this is an assault: so if he hold up his hand
against another in a threatening manner and say nothing, it is an
assault. In the principal case the plaintiff had judgment.


                          STEPHENS _v._ MYERS
           AT NISI PRIUS, CORAM TINDAL, C. J., JULY 17, 1830.
                _Reported in 4 Carrington & Payne, 349._

Assault. The declaration stated that the defendant threatened and
attempted to assault the plaintiff. Plea: Not guilty.

It appeared that the plaintiff was acting as chairman at a parish
meeting, and sat at the head of a table, at which table the defendant
also sat, there being about six or seven persons between him and the
plaintiff. The defendant having, in the course of some angry discussion
which took place, been very vociferous, and interrupted the proceedings
of the meeting, a motion was made that he should be turned out, which
was carried by a very large majority. Upon this the defendant said he
would rather pull the chairman out of the chair than be turned out of
the room, and immediately advanced with his fist clenched toward the
chairman, but was stopped by the churchwarden, who sat next but one to
the chairman, at a time when he was not near enough for any blow he
might have meditated to have reached the chairman, but the witnesses
said that it seemed to them that he was advancing with an intention to
strike the chairman.

_Spankie_, Serjt., for the defendant, upon this evidence, contended that
no assault had been committed, as there was no power in the defendant,
from the situation of the parties, to execute his threat,—there was not
a present ability,—he had not the means of executing his intention at
the time he was stopped.

TINDAL, C. J., in his summing up, said: It is not every threat, when
there is no actual personal violence, that constitutes an assault; there
must, in all cases, be the means of carrying the threat into effect. The
question I shall leave to you will be, whether the defendant was
advancing at the time, in a threatening attitude, to strike the
chairman, so that his blow would almost immediately have reached the
chairman if he had not been stopped; then, though he was not near enough
at the time to have struck him, yet, if he was advancing with that
intent, I think it amounts to an assault in law. If he was so advancing
that, within a second or two of time, he would have reached the
plaintiff, it seems to me it is an assault in law. If you think he was
not advancing to strike the plaintiff, then only can you find your
verdict for the defendant; otherwise you must find it for the plaintiff,
and give him such damages as you think the nature of the case requires.

                            _Verdict for the plaintiff. Damages, 1s._[4]


                            READ _v._ COKER
                   IN THE COMMON PLEAS, JUNE 1, 1853.
              _Reported in 13 Common Bench Reports, 850._

Assault and false imprisonment.[5] The first count charged an assault
committed by the defendant on the plaintiff on the 24th of March, 1853,
by thrusting him out of a certain workshop.

Plea: Not guilty “by statute,” upon which issue was joined.

The cause was tried before Talfourd, J., at the first sitting in London
in Easter term last. The facts which appeared in evidence were as
follows: The plaintiff was a paper-stainer, carrying on business in the
City Road, upon premises which he rented of one Molineux, at a rent of
8_s._ per week. In January, 1852, the rent being sixteen weeks in
arrear, the landlord employed one Holliwell to distrain for it.
Holliwell accordingly seized certain presses, lathes, and other trade
fixtures, and, at the plaintiff’s request, advanced him £16 upon the
security of the goods, for the purpose of paying off the rent. The
plaintiff, being unable to redeem his goods, on the 23d of February
applied to the defendant for assistance. The goods were thereupon sold
to the defendant by Holliwell, on the part of Read, for £25 11_s._
6_d._; and it was agreed between the plaintiff and the defendant that
the business should be carried on for their mutual benefit, the
defendant paying the rent of the premises and other outgoings, and
allowing the plaintiff a certain sum weekly.

The defendant, becoming dissatisfied with the speculation, dismissed the
plaintiff on the 22d of March. On the 24th, the plaintiff came to the
premises, and, refusing to leave when ordered by the defendant, the
latter collected together some of his workmen, who mustered round the
plaintiff, tucking up their sleeves and aprons, and threatened to break
his neck if he did not go out; and, fearing that the men would strike
him if he did not do so, the plaintiff went out. This was the assault
complained of in the first count. Upon this evidence the learned judge
left it to the jury to say whether there was an intention on the part of
the defendant to assault the plaintiff, and whether the plaintiff was
apprehensive of personal violence if he did not retire. The jury found
for the plaintiff on this count. Damages, one farthing.

_Byles_, Serjt., on a former day in this term, moved for a rule _nisi_
for a new trial, on the ground of misdirection, and that the verdict was
not warranted by the evidence. That which was proved as to the first
count clearly did not amount to an assault. [JERVIS, C. J. It was as
much an assault as a sheriff’s officer being in a room with a man
against whom he has a writ, and saying to him, “You are my prisoner,” is
an arrest.] To constitute an assault, there must be something more than
a threat of violence. An assault is thus defined in Buller’s Nisi Prius,
p. 15: “An assault is an attempt or offer, by force or violence, to do a
corporal hurt to another, as by pointing a pitchfork at him, when
standing within reach; presenting a gun at him [within shooting
distance]; drawing a sword, and waving it in a menacing manner, &c. The
Queen _v._ Ingram, 1 Salk. 384. But no words can amount to an assault,
though perhaps they may in some cases serve to explain a doubtful
action: 1 Hawk. P. C. 133; as if a man were to lay his hand upon his
sword, and say, ‘If it were not assize-time, he would not take such
language,’—the words would prevent the action from being construed to be
an assault, because they show he had no intent to do him any corporal
hurt at that time: Tuberville _v._ Savage.” So, in Selwyn’s Nisi Prius
(11th ed.), 26, it is said: “An assault is an attempt, with force or
violence, to do a corporal injury to another, as by holding up a fist in
a menacing manner; striking at another with a cane or stick, though the
party striking may miss his aim; drawing a sword or bayonet; throwing a
bottle or glass with intent to wound or strike; presenting a gun at a
person who is within the distance to which the gun will carry; pointing
a pitchfork at a person who is within reach (Genner _v._ Sparks); or by
any other similar act, accompanied with such circumstances as denote at
the time an intention, coupled with a present ability (see Stephens _v._
Myers), of using actual violence against the person of another.” So, in
3 Bl. Comm. 120, an assault is said to be “an attempt or offer to beat
another, without touching him; as if one lifts up his cane or his fist
in a threatening manner at another, or strikes at him but misses him:
this is an assault, _insultus_, which Finch (L. 202) describes to be ‘an
unlawful setting upon one’s person.’” [JERVIS, C. J. If a man comes into
a room, and lays his cane on the table, and says to another, “If you
don’t go out I will knock you on the head,” would not that be an
assault?] Clearly not: it is a mere threat, unaccompanied by any gesture
or action towards carrying it into effect. The direction of the learned
judge as to this point was erroneous. He should have told the jury that
to constitute an assault there must be an attempt, coupled with a
present ability, to do personal violence to the party; instead of
leaving it to them, as he did, to say what the plaintiff thought, and
not what they (the jury) thought was the defendant’s intention. There
must be some act done denoting a present ability and an intention to
assault.

A rule _nisi_ having been granted,

_Allen_, Serjt., and _Charnock_ now showed cause. The first question is,
whether the evidence was sufficient, as to the first count, to justify
the learned judge in putting it to the jury whether or not the defendant
had been guilty of an assault. The evidence was, that the plaintiff was
surrounded by the defendant and his men, who, with their sleeves and
aprons tucked up, threatened to break his neck if he did not quit the
workshop. [MAULE, J. If there can be such a thing as an assault without
an actual beating, this is an assault.]

JERVIS, C. J. I am of opinion that this rule cannot be made absolute to
its full extent; but that, so far as regards the first count of the
declaration, it must be discharged. If anything short of actual striking
will in law constitute an assault, the facts here clearly showed that
the defendant was guilty of an assault. There was a threat of violence
exhibiting an intention to assault, and a present ability to carry the
threat into execution.

MAULE, J., CRESSWELL, J., and TALFOURD, J., concurring.

                             _Rule discharged as to the first count._[6]


                     UNITED STATES _v._ RICHARDSON
IN THE UNITED STATES CIRCUIT COURT, DISTRICT OF COLUMBIA, NOVEMBER TERM,
                                 1837.
          _Reported in 5 Cranch, Circuit Court Reports, 348._

Indictment for an assault upon one Susan Shelton.

The evidence was that the defendant came into the house where Mrs.
Shelton was sitting at a window. He was armed with a musket and a club;
and raising the club over her head, in an attitude for striking, and
within striking distance, said to her that if she said a word (or if she
opened her mouth) he would strike her; and this without any provocation
on her part.

_Mr. Bradley_ and _Mr. Hoban_, for the defendant, contended that this
was not, in law, an assault; that there can be no assault without a
present intent to strike; and his saying, “if she opened her mouth,”
showed that he had not such a present intent; and they cited the old
case, “if it were not the assizes, I would stab you.”

But the COURT (THURSTON, J., absent) said that he had no right to
restrain her from speaking; and his language showed an intent to strike
upon her violation of a condition which he had no right to impose.
Suppose a stranger comes to my house armed, and raises his club over my
head, within striking distance, and threatens to beat me unless I will
go out of and abandon my house; surely that would be an assault. So, if
a highwayman puts a pistol to my breast, and threatens to shoot me
unless I give him my money; this would be evidence of an assault, and
would be charged as such in the indictment.

                                _Verdict, guilty; fined ten dollars._[7]


                           OSBORN _v._ VEITCH
      AT NISI PRIUS, CORAM WILLES, J., KENT SUMMER ASSIZES, 1858.
                _Reported in 1 Foster & Finlason, 317._

Trespass and assault. Pleas: Not guilty, and _son assault demesne_.
Issue.

The plaintiffs were owners of a field in which the defendants were
walking with loaded guns at half-cock in their hands. The plaintiffs
desired them to withdraw and give their names, and on their refusal
advanced towards them, apparently as if to apprehend them. The
defendants half raised their guns, which they pointed towards them, and
threatened to shoot them. The plaintiffs (one of whom was a constable)
then gave them in charge to a policeman for shooting with intent, and
he, with their assistance, seized and handcuffed them.

_E. James_ submitted that there was no assault; as the guns were only at
half-cock, there was no “present ability” to execute the threat. Read
_v._ Coker.

_Sed per_ WILLES, J. Pointing a loaded gun at a person is in law an
assault. It is immaterial that it is at half-cock; cocking it is an
instantaneous act, and there is a “present ability” of doing the act
threatened, for it can be done in an instant.[8]

_E. James._ The assault was in self-defence; the defendants were only
trespassers, and there was an attempt to apprehend them, and excess is
not even assigned. Broughton _v._ Jackson, 18 Q. B. 378.

WILLES, J. It was not necessary that it should be. To shoot a man is not
a lawful way of repelling an assault. No doubt the charge of shooting
with intent was idle, and the assault was only a misdemeanor. The
handcuffing was utterly unlawful.

                     _Verdict for the plaintiff. Damages, one farthing._


                           BEACH _v._ HANCOCK
   SUPERIOR COURT OF JUDICATURE, NEW HAMPSHIRE, DECEMBER TERM, 1853.
              _Reported in 27 New Hampshire Reports, 223._

Trespass, for an assault.

Upon the general issue it appeared that, the plaintiff and defendant
being engaged in an angry altercation, the defendant stepped into his
office, which was at hand, and brought out a gun, which he aimed at the
plaintiff in an excited and threatening manner, the plaintiff being
three or four rods distant. The evidence tended to show that the
defendant snapped the gun twice at the plaintiff, and that the plaintiff
did not know whether the gun was loaded or not, and that, in fact, the
gun was not loaded.

The court ruled that the pointing of a gun, in an angry and threatening
manner, at a person three or four rods distant, who was ignorant whether
the gun was loaded or not, was an assault, though it should appear that
the gun was not loaded, and that it made no difference whether the gun
was snapped or not.

The court, among other things, instructed the jury that, in assessing
the damages, it was their right and duty to consider the effect which
the finding of light or trivial damages in actions for breaches of the
peace would have to encourage a disregard of the laws and disturbances
of the public peace.

The defendant excepted to these rulings and instructions.

The jury having found a verdict for the plaintiff, the defendant moved
for a new trial by reason of said exceptions.

_Morrison_ and _Fitch_, for the defendant. The first question arising in
this case is, Is it an assault to point an unloaded gun at a person in a
threatening manner? An assault is defined to be an inchoate violence to
the person of another, with the present means of carrying the intent
into effect. 2 Greenl. Ev. 72. The attempt or offer with violence to do
corporal hurt to another must be coupled with a present ability to
constitute an assault. Roscoe’s Crim. Ev. 287; 1 Russell on Crimes, 750.
It is no assault to point an unloaded gun or pistol at another, &c.
Blake _v._ Barnard, 9 Car. & P. 626; Regina _v._ Baker, 1 Car. & K. 254;
Regina _v._ James, 1 Car. & K. 530. The court erred in instructing the
jury that the pointing of a gun in an angry and threatening manner was
an assault. It is well settled that the intention to do harm is the
essence of an assault, and this intent is to be collected by the jury
from the circumstances of the case. 2 Greenl. Ev. 73.[9]

GILCHRIST, C. J. Several cases have been cited by the counsel of the
defendant to show that the ruling of the court was incorrect. Among them
is the case of Regina _v._ Baker, 1 Car. & K. 254. In that case, the
prisoner was indicted under the statute of 7 Will. IV. and 1 Vict. c.
85, for attempting to discharge a loaded pistol. Rolfe, B., told the
jury that they must consider whether the pistol was in such a state of
loading that, under ordinary circumstances, it would have gone off, and
that the statute under which the prisoner was indicted would then apply.
He says, also, “If presenting a pistol at a person, and pulling the
trigger of it, be an assault at all, certainly, in the case where the
pistol was loaded, it must be taken to be an attempt to discharge the
pistol with intent to do some bodily injury.”

From the manner in which this statement is made, the opinion of the
court must be inferred to be, that presenting a loaded pistol is an
assault. There is nothing in the case favorable to the defendant. The
statute referred to relates to loaded arms.

The case of Regina _v._ James, 1 Car. & K. 530, was an indictment for
attempting to discharge a loaded rifle. It was shown that the priming
was so damp that it would not go off. Tindal, C. J., said: “I am of
opinion that this was not a loaded arm within the statute of 1 Vict. c.
85, and that the prisoner can neither be convicted of the felony nor of
the assault. It is only an assault to point a loaded pistol at any one,
and this rifle is proved not to be so loaded as to be able to be
discharged.” The reason why the prisoner could not be convicted of the
assault is given in the case of Regina _v._ St. George, 9 Car. & P. 483,
where it was held that on an indictment for a felony, which includes an
assault, the prisoner ought not to be convicted of an assault, which is
quite distinct from the felony charged, and on such an indictment the
prisoner ought only to be convicted of an assault, which is involved in
the felony itself. In this case, Parke, B., said: “If a person presents
a pistol which has the appearance of being loaded, and puts the party
into fear and alarm, that is what it is the object of the law to
prevent.” So if a person present a pistol purporting to be a loaded
pistol at another, and so near as to have been dangerous to life if the
pistol had gone off; _semble_, that this is an assault, even though the
pistol were, in fact, not loaded. Ibid.

In the case of Blake _v._ Barnard, 9 Car. & P. 626, which was trespass
for an assault and false imprisonment, the declaration alleged that the
pistol was loaded with gunpowder, ball, and shot, and it was held that
it was incumbent on the plaintiff to make that out. Lord Abinger then
says, “If the pistol was not loaded, it would be no assault,” and the
prisoner would be entitled to an acquittal, which was undoubtedly
correct, under that declaration, for the variance. Regina _v._ Oxford, 9
Car. & P. 525.

One of the most important objects to be attained by the enactment of
laws and the institutions of civilized society is, each of us shall feel
secure against unlawful assaults. Without such security society loses
most of its value. Peace and order and domestic happiness, inexpressibly
more precious than mere forms of government, cannot be enjoyed without
the sense of perfect security. We have a right to live in society
without being put in fear of personal harm. But it must be a reasonable
fear of which we complain. And it surely is not unreasonable for a
person to entertain a fear of personal injury, when a pistol is pointed
at him in a threatening manner, when, for aught he knows, it may be
loaded, and may occasion his immediate death. The business of the world
could not be carried on with comfort, if such things could be done with
impunity.

We think the defendant guilty of an assault, and we perceive no reason
for taking any exception to the remarks of the court. Finding trivial
damages for breaches of the peace—damages incommensurate with the injury
sustained—would certainly lead the ill-disposed to consider an assault
as a thing that might be committed with impunity. But at all events, it
was proper for the jury to consider whether such a result would or would
not be produced. Flanders _v._ Colby, 28 N. H. 34.

                                          _Judgment on the verdict._[10]


                     STEARNS AND WIFE _v._ SAMPSON
                  SUPREME JUDICIAL COURT, MAINE, 1871.
                  _Reported in 59 Maine Reports, 568._

On exceptions, and motion to set aside the verdict as being against law.

Trespass. The writ contained three counts: one for breaking and entering
the plaintiffs’ close and carrying away the household furniture; the
second, for taking and carrying away the household furniture of the
wife; and the third,[11] for assault on the wife.

There was evidence tending to show that after entry and notice to leave,
and refusal by the wife and her mother, with an expressed determination
on their part to hold possession against the defendant, the latter
called in assistants and ordered them to remove the furniture, and they
did remove it from some of the rooms; that upon going to one of the
rooms, the door was fastened, and the assistants opened it; that the
furniture, except bed, was removed from Mrs. Stearns’ sleeping-room.

That the assistants remained there several days and nights.

That the defendant caused the windows to be removed; prevented food from
being carried to the house; that a tenant was let into the L of the
house, and had charge of the defendant’s bloodhound, five months old,
and permitted him to go into the house; that the furniture was removed
into a house near by, and Mrs. Stearns notified of its whereabouts; that
the doors fastened by Mrs. Stearns were removed; that Mrs. Stearns
finally left by compulsion with an officer, and was sick several weeks.

The rulings sufficiently appear in the opinion.

The jury returned a verdict for the plaintiffs, and the defendant
alleged exceptions, and also filed motions to set aside the verdict as
being against law and the weight of evidence.

APPLETON, C. J. There is in the declaration a count for an assault and
battery upon the female plaintiff. In reference to this branch of the
case, the following instructions were given: “Was there a trespass
committed upon the female plaintiff? She is the only one who seeks for
damages. Whatever may have been the injury inflicted upon the other
inmates of that house, she can recover on this suit only for that which
was inflicted upon her. In order to constitute an assault, it is not
necessary that the person should be touched, but there should be certain
indignities. In the language of one of the decisions, if the plaintiff
was embarrassed and distressed by the acts of the defendant, it would
amount in law to an assault.” The acts and indignities which from the
charge might constitute an assault were the bursting open a door, which
the defendants had no right to fasten, and the inconveniences resulting
from taking off the doors and taking out the windows, which made it
uncomfortable for the female plaintiff to remain, where remaining, she
was a trespasser. So the bringing a bloodhound by the defendant into his
house, which is proved to have barked, but not to have bitten, and the
making a noise therein, with other similar acts, it was contended, would
amount to an assault and trespass, and of that the jury were to judge.
Now, such is not the law. An assault and battery is clearly defined by
R. S., c. 118, § 28, thus: “Whoever unlawfully attempts to strike, hit,
touch, or do any violence to another, however small, in a wanton,
wilful, angry, or insulting manner, having an intention and existing
ability to do some violence to such person, shall be deemed guilty of an
assault; and if such attempt is carried into effect, he shall be deemed
guilty of an assault and battery.” Now, the removal of a door or
windows, of the owner in possession, would constitute no assault.
Indeed, as has been seen, 6 Allen, 76, the owner would, in attempting
it, have the right to use as much force as was necessary to overcome the
resistance of the unlawfully resisting and trespassing tenant. Acts
which may embarrass and distress do not necessarily amount to an
assault. Indignities may not constitute an assault. Acts aggravating an
assault differ materially from the assault thereby aggravated. Insulting
language or conduct may aggravate an assault, but it, not an
assault.[12] So the acts of the defendant in taking out the windows of
his own house, in a bleak and cold day, might distress one unlawfully
occupying and illegally refusing to quit his premises, but they could in
no sense be regarded as an assault upon her. One may be embarrassed and
distressed by acts done “in a wanton, wilful, angry, or insulting
manner,” where there is no “intention nor existing ability to do some
violence” to the person, and yet there be no assault. The instruction on
this point is equally at variance with the common law and the statute of
the State.[13]


                            COLE _v._ TURNER
          AT NISI PRIUS, CORAM HOLT, C. J., EASTER TERM, 1704.
                  _Reported in 6 Modern Reports, 149._

HOLT, C. J., upon evidence in trespass for assault and battery
declared,—

First, That the least touching of another in anger[14] is a battery.

Secondly, If two or more meet in a narrow passage, and, without any
violence or design of harm, the one touches the other gently, it will be
no battery.[15]

Thirdly, If any of them use violence against the other, to force his way
in a rude, inordinate manner, it will be a battery; or any struggle
about the passage to that degree as may do hurt will be a battery.


                            INNES _v._ WYLIE
      AT NISI PRIUS, CORAM LORD DENMAN, C. J., FEBRUARY 22, 1844.
               _Reported in 1 Carrington & Kirwan, 257._

ASSAULT. Plea:[16] Not guilty.

It further appeared that the plaintiff, on the 30th of November, 1843,
went to a dinner of the society at Radley’s Hotel, and was prevented by
a policeman named Douglas from entering the room; and it was proved by
the policeman that he acted by order of the defendants.

With respect to the alleged assault, the policeman said, “The plaintiff
tried to push by me into the room, and I prevented him;” but some of the
other witnesses stated that the plaintiff tried to enter the room, and
was pushed back.

_Erle_ addressed the jury for the defendant. There is no assault here.
The policeman, who must best know what was done, says that the plaintiff
tried to push into the room, and he prevented him; and preventing a
person from pushing into a room is no assault, the assault, if any,
being rather on the other side.

LORD DENMAN, C. J. (in summing up). You will say, whether, on the
evidence, you think that the policeman committed an assault on the
plaintiff, or was merely passive. If the policeman was entirely passive,
like a door or a wall put to prevent the plaintiff from entering the
room, and simply obstructing the entrance of the plaintiff, no assault
has been committed on the plaintiff, and your verdict will be for the
defendant. The question is, Did the policeman take any active measures
to prevent the plaintiff from entering the room, or did he stand in the
doorway passive, and not move at all?

                              _Verdict for the plaintiff. Damages, 40s._


                          COWARD _v._ BADDELEY
                   IN THE EXCHEQUER, APRIL 19, 1859.
                _Reported in 4 Hurlstone & Norman, 478._

Declaration: That the defendant assaulted and beat the plaintiff, gave
him in custody to a policeman, and caused him to be imprisoned in a
police-station for twenty-four hours, and afterwards to be taken in
custody along public streets before metropolitan police magistrates.

Pleas: First, Not guilty; third, That the plaintiff, within the
Metropolitan Police District, assaulted the defendant, and therefore the
defendant gave the plaintiff into custody to a police officer, who had
view of the assault, in order that he might be taken before magistrates
and dealt with according to law, &c.

Whereupon issue was joined.

At the trial before Bramwell, B., at the London sittings in last Hilary
term, the plaintiff proved that, on the night of the 31st of October, he
was passing through High Street, Islington, and stopped to look at a
house which was on fire. The defendant was directing a stream of water
from the hose of an engine on the fire. The plaintiff said, “Don’t you
see you are spreading the flames? Why don’t you pump on the next house?”
He went away, and then came back and repeated these words several times,
but did not touch the defendant. The defendant charged the plaintiff
with assaulting him, and gave him into the custody of a policeman who
was standing near.

The defendant swore that, on being interrupted by the plaintiff, he told
him to get out of the way and mind his own business; that the plaintiff
came up to him again, seized him by the shoulder, violently turned him
round, exposed him to danger, and turned the water off the fire.

The learned judge told the jury that the question was whether an assault
and battery had been committed; and he asked them, first, whether the
plaintiff laid hands on the defendant; and, secondly, whether he did so
hostilely. The jury found that the plaintiff did lay hands on the
defendant, intending to attract his attention. Whereupon the learned
judge ordered the verdict to be entered for the plaintiff, reserving
leave to the defendant to move to enter a verdict for him if the court
should be of opinion that he had wrongly directed the jury in telling
them that, to find the issue on the third plea for the defendant, they
must find that the plaintiff laid his hands upon him with a hostile
intention.

_Shee_, Serjt., in the same term, having obtained a rule _nisi_
accordingly.

_Beasley_ now showed cause. The question is, whether the intention of
the plaintiff is material to be considered in order to determine whether
there was an assault and battery. In Rawlings _v._ Till, 3 M. & W. 28,
Parke, B., referring to Wiffin _v._ Kincard, 2 B. & P. N. R. 471, where
it was held that a touch given by a constable’s staff does not
constitute a battery, pointed out, as the ground of that decision, that
there the touch was merely to engage the plaintiff’s attention. [MARTIN,
B. Suppose two persons were walking near each other, and one turned
round, and in so doing struck the other: surely that would not be a
battery. POLLOCK, C. B. There may be a distinction for civil and
criminal purposes. CHANNELL, B. It was necessary to prove an indictable
assault and battery in order to sustain the plea.] The maxim, _Actus non
facit reum nisi mens sit rea_ applies. He referred also to Pursell _v._
Horn, 8 A. & E. 602; Archbold’s Criminal Law, p. 524 (12th ed.); Scott
_v._ Shepherd, 2 W. Bl. 892.

_Petersdorff_, Serjt., and _Francis_, in support of the rule. The
learned judge’s direction was defective in introducing the word
“hostile.” In order to constitute an assault, it is enough if the act be
done against the will of the party. There are several cases where it has
been held that an assault has been committed where there was no
intention to do the act complained of in a hostile way, as in the case
of a prizefight. Rex _v._ Perkins, 4 Car. & P. 537. So a surgeon
assisting a female patient to remove a portion of her dress. Rex _v._
Rosinski 1 Moody C. C. 19. Here the plaintiff interfered with the
defendant in the execution of his duty. In Hawkins’ Pleas of the Crown,
vol. i. p. 263, it is said, “Any injury whatever, be it never so small,
being actually done to the person of a man in an angry, or revengeful,
or rude, or insolent manner, as by spitting in his face, or any way
touching him in anger, or violently jostling him out of the way, are
batteries in the eye of the law.” [BRAMWELL, B. I think that the
jostling spoken of must mean a voluntary jostling.]

POLLOCK, C. B. I am of opinion that the rule must be discharged. The
jury found that what the plaintiff did was done with the intent to
attract the attention of the defendant, not with violence to justify
giving the plaintiff into custody for an assault. The defendant treated
it as a criminal act, and gave the plaintiff into custody. We are called
on to set aside a verdict for the plaintiff, on the ground that he
touched the defendant.[17] There is no foundation for the application.

MARTIN, B. I am of the same opinion. The assault and battery which the
defendant was bound to establish means such an assault as would justify
the putting in force the criminal law for the purpose of bringing the
plaintiff to justice. It is necessary to show some act which justified
the interference of the police officer. Touching a person so as merely
to call his attention, whether the subject of a civil action or not, is
not the ground of criminal proceeding. It is clear that it is no battery
within the definition given by Hawkins.

CHANNELL, B. I am of the same opinion. Looking at the plea, it is
obvious that it was not proved.

BRAMWELL, B., concurred.

                                                      _Rule discharged._


                       DE MARENTILLE _v._ OLIVER
            SUPREME COURT, NEW JERSEY, FEBRUARY TERM, 1808.
                    _Reported in 1 Pennington, 379._

This was action of trespass, brought by the defendant in this court,
against the plaintiff _in certiorari_. The state of demand charged the
defendant below, that he unlawfully, forcibly, and with great violence,
with a large stick, struck the horse of the plaintiff, on the public
highway, which said horse was then before a carriage, in which the
plaintiff was riding, on the said public highway, to the damage of the
plaintiff fifty dollars. This cause was tried by a jury, and verdict and
judgment for the plaintiff, $15 damages. It was assigned for error that
the suit was brought before the justice to recover damages for an
assault and battery, when, by law, such an action cannot be supported
before a justice of the peace.

PENNINGTON, J.[18] To attack and strike with a club, with violence, the
horse before a carriage, in which a person is riding, strikes me as an
assault on the person;[19] and if so, the justice had no jurisdiction of
the action.

But if this is to be considered as a trespass on the property,
unconnected with an assault on the person, I think that it was incumbent
on the plaintiff below to state an injury done to the horse, whereby the
plaintiff suffered damage; that he was in consequence of the blow
bruised or wounded, and unable to perform service; or that the plaintiff
had been put to expense in curing of him, or the like. All the
precedents of declarations for injuries done to domestic animals, as far
as my recollection goes, are in that way; and I think, with good reason.
Suppose a man, seeing a stranger’s horse in the street, was to strike
him with a whip, or a large stick, if you please, and no injury was to
ensue, could the owner of the horse maintain an action for this act? I
apprehend not. For these reasons, I incline to think, that this judgment
ought to be reversed.

KIRKPATRICK, C. J. Concurred in the reversal.

                                                    _Judgment reversed._


                           OBERLIN _v._ UPSON
                SUPREME COURT, OHIO, JANUARY TERM, 1911.
               _Reported in 84 Ohio State Reports, 111._

DAVIS, J.[20] Under the common law of England as it has been recognized
and administered in this country, a woman cannot maintain against her
seducer an action for damages arising from her own seduction. This is
frankly admitted by the counsel for the plaintiff in error; but they ask
a reversal of the judgment below upon the ground that the plaintiff was
induced to consent to the solicitations of the defendant by a betrayal
of the love and confidence which had been engendered in her by a period
of courtship and by a promise of marriage made by him. Confessedly this
is not an action _ex contractu_ upon a promise of marriage, in which the
seduction might be pleaded and proved as an aggravation of damages;[21]
but it is clearly an attempt to recover _ex delicto_. There is no
averment of mutual promises or of an agreement to marry; and an analysis
of the amended petition discloses no more than that the defendant’s
promise was one of the blandishments by which he accomplished his
purpose. The case, therefore, presents no exception to the common law
rule; for there is no claim of fraud, violence or artifice other than
mere solicitation.

The theory of the common law is that, since adultery and fornication are
crimes,[22] the woman is _particeps criminis_ and hence that she cannot
be heard to complain of a wrong which she helped to produce. It may be
conceded that some of the arguments adduced here might be fairly
persuasive if addressed to the legislature. Indeed in several of the
states statutes have been enacted authorizing such an action; but a
careful study of the decisions in those states, limiting and construing
those statutes, raises a doubt whether the legislation is a real advance
upon the common law. 8 Ann. Cas. 1115, note. There is, however, no such
statute in this state and the common law rule applies.

The judgment of the circuit court is       _Affirmed_.[23]

SPEAR, C. J., SHAUCK, PRICE, and JOHNSON, JJ., concur.

DONAHUE, J., not participating.


                           BELL _v._ HANSLEY
          SUPREME COURT, NORTH CAROLINA, DECEMBER TERM, 1855.
                      _Reported in 3 Jones, 131._

This was an action of trespass, assault, and battery, tried before
Ellis, Judge, at the fall term, 1855, of New Hanover Superior Court.

The plaintiff proved the assault and battery; and there was evidence
tending to show a mutual affray and fighting by consent.

But his Honor was of opinion, and so advised the jury, that
notwithstanding the fact that the parties had mutually assented to an
affray, the plaintiff was, nevertheless, entitled to recover; but that
the fact relied on as a defence was proper to be considered by the jury
in mitigation of damages. The defendant excepted to these instructions.

                       _Verdict for the plaintiff. Judgment and appeal._


NASH, C. J. This case presents the question whether, when two men fight
together, thereby committing an affray, either is guilty of an assault
and battery upon the other. Justice Buller, in his Nisi Prius, at page
16, says, each does commit an assault and battery upon the other, and
that each can maintain an action for it. He refers to a case at
Abingdon, Boulter _v._ Clark, when Serjeant Hayward appeared for the
defendant, and offered to prove that the parties fought by consent and
insisted that this, under the maxim _volenti non fit injuria_, applied.
Parker, Chief Baron, denied it, and said, “the fighting being unlawful,
the consent of the plaintiff to fight would be no bar to his action, and
that he was entitled to a verdict.” Mr. Stephens, in his Nisi Prius,
211, lays down the same doctrine: “If two men engage in a boxing match,
an action can be sustained by either of them against the other, if an
assault be made; because the act of boxing is unlawful, and the consent
of the parties to fight cannot excuse the injury.”

                                    _Per Curiam. Judgment affirmed._[24]


                               SECTION II
                              IMPRISONMENT
                      NOTE BY THORPE, C. J., 1348.
   _Reported in Year Book, Liber Assisarum, folio 104, placitum 85._

There is said to be an imprisonment in any case where one is arrested by
force and against his will, although it be on the high street or
elsewhere, and not in a house, &c.[25]


                          GENNER _v._ SPARKES
                IN THE KING’S BENCH, TRINITY TERM, 1704.
                      _Reported in 1 Salkeld, 79._

Genner, a bailiff, having a warrant against Sparkes, went to him in his
yard, and, being at some distance, told him he had a warrant, and said
he arrested him. Sparkes, having a fork in his hand, keeps off the
bailiff from touching him, and retreats into his house. And this was
moved as a contempt. _Et per Curiam._ The bailiff cannot have an
attachment, for here was no arrest nor rescous. Bare words will not make
an arrest; but if the bailiff had touched him, that had been an
arrest,[26] and the retreat a rescous, and the bailiff might have
pursued and broke open the house, or might have had an attachment or a
rescous against him; but as this case is, the bailiff has no remedy, but
an action for the assault; for the holding up of the fork at him when he
was within reach, is good evidence of that.[27]


                             WOOD _v._ LANE
         AT NISI PRIUS, CORAM TINDAL, C. J., DECEMBER 13, 1834.
                _Reported in 6 Carrington & Payne, 774._

Trespass and false imprisonment. Pleas: Not guilty; and leave and
license.

It was proved by a member of the plaintiff’s family that he was a
flannel draper in Castle Street, Holborn, and that on the 3d of April he
came home accompanied by the defendants, Cleaton and Lane; and that the
plaintiff said Cleaton had arrested him at Mr. Sanders’s, in Holborn;
that the plaintiff’s wife asked the defendant Lane, who was, in fact,
clerk to Cleaton’s attorney, if he had any authority, and he said he
had; and being asked his name, said, “My name is Selby of Chancery
Lane.” Lane made several inquiries about the plaintiff’s property, and
said he would give him time till eight o’clock in the evening; upon
which the other defendant, Cleaton, said, “How can you do that? I will
not allow you to give him any time at all.” It was proved that, in fact,
Mr. Selby had no bailable process against the plaintiff. A witness was
also called, who proved that, in conversation with the defendant Lane on
the subject, he said it was a foolish piece of business; that Mr.
Cleaton had caused him to do it; that he was very sorry for it, but he
thought Mr. Cleaton would indemnify him. There was some uncertainty in
the evidence of the conversation whether the defendant Lane admitted or
not that he had taken the plaintiff by the arm.

According to the evidence of Mr. Sanders, at whose house the transaction
commenced, the plaintiff was bargaining with him for the sale of some
goods, and had just made out the invoice, which was lying before him,
when the defendant Cleaton came in alone, and asked the plaintiff
several times to pay the amount he owed him, or some money on account.
The plaintiff said he would not; upon which Cleaton went just outside
the door, and returned immediately, followed by the defendant Lane, and
pointing to the plaintiff, said, “This is the gentleman.” The plaintiff
tore up the invoice he had written, and threw it on the fire, and said,
“I suppose I am to go with you.” The answer given was, “Yes.” The
plaintiff and the two defendants went away together.

_Talfourd_, Serjt., for the defendant. No arrest has been proved.
Sanders, who was present, says nothing of the laying hold of the
plaintiff.

TINDAL, C. J. The question is, whether the plaintiff went voluntarily
from Mr. Sanders’s to his own house, or whether he went in consequence
of the acts of the defendants. If you put your hand upon a man, or tell
him he must go with you, and he goes, supposing you to have the power to
enforce him, is not that an arrest? May you not arrest without touching
a man?

_White_ referred to the case of Arrowsmith _v._ Le Mesurier, 2 B. & P.
N. R. 211.

TINDAL, C. J. That is a case which has often been spoken of as going to
the very extreme point; but in that case the jury found that the
plaintiff went voluntarily with the officer. And in this case, if you
can persuade the jury that the plaintiff went voluntarily, you may
succeed.

_Talfourd_, Serjt., then addressed the jury for the defendants. There
was no real compulsion. No writ was produced. It was only an endeavor by
a manœuvre to make the plaintiff do what he ought, but would not, viz.,
pay the money which he owed.

TINDAL, C. J., in summing up, told the jury, that, if the plaintiff was
acting as an unwilling agent, at the time and against his own will when
he went to his own house from that of Sanders, it was just as much an
arrest as if the defendants had forced him along.

                   _The jury found for the plaintiff. Damages_, £10.[28]


                            PIKE _v._ HANSON
   SUPERIOR COURT OF JUDICATURE, NEW HAMPSHIRE, DECEMBER TERM, 1838.
              _Reported in 9 New Hampshire Reports, 491._

Trespass, for an assault and false imprisonment on the 1st day of July,
A.D. 1837. The action was commenced before a justice of the peace. The
defendants pleaded severally the general issue. It appeared in evidence
that the defendants were selectmen of the town of Madbury for the year
1836; that they assessed a list of taxes upon the inhabitants of said
town, among whom was the plaintiff, and committed it to Nathan Brown,
collector of said town, for collection. Brown, after having given due
notice to the plaintiff, being in a room with her, called upon her to
pay the tax, which she declined doing until arrested. He then told her
that he arrested her, but did not lay his hand upon her; and thereupon
she paid the tax.

Upon this evidence the defendants objected that the action could not be
maintained, because there was no assault.

It did not appear that the defendants had been sworn, as directed by the
statute of January 4, 1833. A verdict was taken for the plaintiff,
subject to the opinion of the court.

WILCOX, J.[29] ... But it is contended that in the present case there
has been no assault committed, and no false imprisonment. Bare words
will not make an arrest: there must be an actual touching of the body;
or, what is tantamount, a power of taking immediate possession of the
body, and the party’s submission thereto. Genner _v._ Sparkes, 1 Salk.
79. Where a bailiff, having a writ against a person, met him on
horseback, and said to him, “You are my prisoner,” upon which he turned
back and submitted, this was held to be a good arrest, though the
bailiff never laid hand on him. But if, on the bailiff’s saying those
words, he had fled, it had been no arrest, unless the bailiff had laid
hold of him. Homer _v._ Battyn, Buffer’s N. P. 62. The same doctrine is
held in other cases. Russen _v._ Lucas & al., 1 Car. & P. 153; Chinn
_v._ Morris, 2 Car. & P. 361; Pocock _v._ Moore, Ry. & M. 321; Strout
_v._ Gooch, 8 Greenl. 126; Gold _v._ Bissell, 1 Wend. 210.

Where, upon a magistrate’s warrant being shown to the plaintiff, the
latter voluntarily and without compulsion attended the constable who had
the warrant to the magistrate, it was held there was no sufficient
imprisonment to support an action. Arrowsmith _v._ Le Mesurier, 2 B. &
P. N. R. 211. But in this case there was no declaration of any arrest,
and the warrant was in fact used only as a summons. And if the decision
cannot be sustained upon this distinction, it must be regarded as of
doubtful authority.

Starkie says that in ordinary practice words are sufficient to
constitute an imprisonment, if they impose a restraint upon the person,
and the plaintiff is accordingly restrained; for he is not obliged to
incur the risk of personal violence and insult by resisting, until
actual violence be used. 3 Stark. Ev. 1113. This principle is reasonable
in itself, and is fully sustained by the authorities above cited. Nor
does it seem necessary that there should be any very formal declaration
of an arrest. If the officer goes for the purpose of executing his
warrant; has the party in his presence and power; if the party so
understands it, and in consequence thereof submits, and the officer, in
execution of the warrant, takes the party before a magistrate, or
receives money or property in discharge of his person, we think it is in
law an arrest, although he did not touch any part of the body.

In the case at bar, it clearly appears that the plaintiff did not intend
to pay the tax, unless compelled by an arrest of her person. The
collector was so informed. He then proceeded to enforce the collection
of the tax,—declared that he arrested her,—and she, under that
restraint, paid the money. This is a sufficient arrest and imprisonment
to sustain the action, and there must, therefore, be

                                          _Judgment on the verdict._[30]


                  FOTHERINGHAM _v._ ADAMS EXPRESS CO.
    IN THE UNITED STATES CIRCUIT COURT, EASTERN DISTRICT, MISSOURI,
                          SEPTEMBER 24, 1888.
                _Reported in 36 Federal Reporter, 252._

THAYER, J.[31] With reference to the motion for a new trial which has
been filed in this case and duly considered, it will suffice to say,
that I entertain no doubt that the jury were warranted in finding that
plaintiff was unlawfully restrained of his liberty from about the 27th
or 28th of October until the 10th of November following; that is to say,
for a period of about two weeks. The testimony in the case clearly
showed that during that period he was constantly guarded by detectives
employed by defendant for that purpose; that he was at no time free to
come and go as he pleased; that his movements were at all times subject
to the control and direction of those who had him in charge; that he was
urged by them on several occasions to confess his guilt, and make known
his confederates; and that he was subjected to repeated examinations and
cross-examinations touching the robbery, of such character as clearly to
imply that he was regarded as a criminal, and that force would be used
to detain him if he attempted to assert his liberty. The jury in all
probability found (as they were warranted in doing) that during the time
plaintiff remained in company with the detectives, he was in fact
deprived of all real freedom of action, and that whatever consent he
gave to such restraint was an enforced consent, and did not justify the
detention without a warrant. It is manifest that the court ought not to
disturb the finding on that issue.[32]


                            BIRD _v._ JONES
             IN THE QUEEN’S BENCH, TRINITY VACATION, 1845.
              _Reported in 7 Queen’s Bench Reports, 742._

This action was tried before Lord Denman, C. J., at the Middlesex
sittings after Michaelmas term, 1843, when a verdict was found for the
plaintiff.

In Hilary term, 1844, Thesiger obtained a rule _nisi_ for a new trial,
on the ground of misdirection.

In Trinity term, in the same year (June 5), Platt, Humfrey, and Hance
showed cause, and Sir F. Thesiger, Solicitor-General, supported the
rule.

The judgments sufficiently explain the nature of the case.

                                                       _Cur. adv. vult._

In this vacation (9th July), there being a difference of opinion on the
bench, the learned judges who heard the argument delivered judgment
_seriatim_.

COLERIDGE, J. In this case, in which we have unfortunately been unable
to agree in our judgment, I am now to pronounce the opinion which I have
formed; and I shall be able to do so very briefly, because, having had
the opportunity of reading a judgment prepared by my Brother Patteson,
and entirely agreeing with it, I may content myself with referring to
the statement he has made in detail of those preliminary points in which
we all, I believe, agree, and which bring the case up to that point upon
which its decision must certainly turn, and with regard to which our
difference exists.

This point is, whether certain facts, which may be taken as clear upon
the evidence, amount to an imprisonment. These facts, stated shortly,
and as I understand them, are in effect as follows:—

A part of a public highway was inclosed, and appropriated for spectators
of a boat-race, paying a price for their seats. The plaintiff was
desirous of entering this part, and was opposed by the defendant; but,
after a struggle, during which no momentary detention of his person took
place, he succeeded in climbing over the inclosure. Two policemen were
then stationed by the defendant to prevent, and they did prevent, him
from passing onwards in the direction in which he declared his wish to
go; but he was allowed to remain unmolested where he was, and was at
liberty to go, and was told that he was so, in the only other direction
by which he could pass. This he refused for some time, and during that
time remained where he had thus placed himself.

These are the facts; and, setting aside those which do not properly bear
on the question now at issue, there will remain these: that the
plaintiff, being in a public highway and desirous of passing along it in
a particular direction, is prevented from doing so by the orders of the
defendant, and that the defendant’s agents for the purpose are
policemen, from whom, indeed, no unnecessary violence was to be
anticipated, or such as they believed unlawful, yet who might be
expected to execute such commands as they deemed lawful with all
necessary force, however resisted. But although thus obstructed, the
plaintiff was at liberty to move his person and go in any other
direction, at his free will and pleasure; and no actual force or
restraint on his person was used, unless the obstruction before
mentioned amounts to so much.

I lay out of consideration the question of right or wrong between these
parties. The acts will amount to imprisonment, neither more nor less,
from their being wrongful or capable of justification.

And I am of opinion that there was no imprisonment. To call it so
appears to me to confound partial obstruction and disturbance with total
obstruction and detention. A prison may have its boundary large or
narrow, visible and tangible, or, though real, still in the conception
only; it may itself be movable or fixed; but a boundary it must have,
and that boundary the party imprisoned must be prevented from passing;
he must be prevented from leaving that place, within the ambit of which
the party imprisoning would confine him, except by prison breach. Some
confusion seems to me to arise from confounding imprisonment of the body
with mere loss of freedom: it is one part of the definition of freedom
to be able to go whithersoever one pleases; but imprisonment is
something more than the mere loss of this power: it includes the notion
of restraint within some limits defined by a will or power exterior to
our own.

In Com. Dig. Imprisonment (G), it is said: “Every restraint of the
liberty of a free man will be an imprisonment.” For this the authorities
cited are 2 Inst. 482; Cro. Car. 209. But when these are referred to, it
will be seen that nothing was intended at all inconsistent with what I
have ventured to lay down above. In both books the object was to point
out that a prison was not necessarily what is commonly so called, a
place locally defined and appointed for the reception of prisoners. Lord
Coke is commenting on the statute of Westminster 2d,[33] _in prisona_,
and says: “Every restraint of the liberty of a freeman is an
imprisonment, although he be not within the walls of any common prison.”
The passage in Cro. Car. 209, is from a curious case of an information
against Sir Miles Hobert and Mr. Stroud for escaping out of the
Gate-house Prison, to which they had been committed by the king. The
question was whether, under the circumstances, they had ever been there
imprisoned. Owing to the sickness in London, and through the favor of
the keeper, these gentlemen had not, except on one occasion, ever been
within the walls of the Gate-house. The occasion is somewhat singularly
expressed in the decision of the court, which was “that their voluntary
retirement to the close stool” in the Gate-house “made them to be
prisoners.” The resolution, however, in question is this: “that the
prison of the King’s Bench is not any local prison confined only to one
place, and that every place where any person is restrained of his
liberty is a prison; as if one take sanctuary and depart thence, he
shall be said to break prison.”

On a case of this sort, which, if there be difficulty in it, is at least
purely elementary, it is not easy nor necessary to enlarge, and I am
unwilling to put any extreme case hypothetically; but I wish to meet one
suggestion, which has been put as avoiding one of the difficulties which
cases of this sort might seem to suggest. If it be said that to hold the
present case to amount to an imprisonment would turn every obstruction
of the exercise of a right of way into an imprisonment, the answer is
that there must be something like personal menace or force accompanying
the act of obstruction, and that, with this, it will amount to
imprisonment. I apprehend that is not so. If, in the course of a night,
both ends of a street were walled up, and there was no egress from the
house but into the street, I should have no difficulty in saying that
the inhabitants were thereby imprisoned; but if only one end were walled
up, and an armed force stationed outside to prevent any scaling of the
wall or passage that way, I should feel equally clear that there was no
imprisonment. If there were, the street would obviously be the prison,
and yet, as obviously, none would be confined to it.

Knowing that my lord has entertained strongly an opinion directly
contrary to this, I am under serious apprehension that I overlook some
difficulty in forming my own; but, if it exists, I have not been able to
discover it, and am therefore bound to state that, according to my view
of the case, the rule should be absolute for a new trial.[34]

LORD DENMAN, C. J. I have not drawn up a formal judgment in this case,
because I hoped to the last that the arguments which my learned brothers
would produce in support of their opinion might alter mine. We have
freely discussed the matter both orally and in written communications;
but, after hearing what they have advanced, I am compelled to say that
my first impression remains. If, as I must believe, it is a wrong one,
it may be in some measure accounted for by the circumstances attending
the case. A company unlawfully obstructed a public way for their own
profit, extorting money from passengers, and hiring policemen to effect
this purpose. The plaintiff, wishing to exercise his right of way, is
stopped by force, and ordered to move in a direction which he wished not
to take. He is told at the same time that a force is at hand ready to
compel his submission. That proceeding appears to me equivalent to being
pulled by the collar out of the one line and into the other.

There is some difficulty, perhaps, in defining imprisonment in the
abstract without reference to its illegality; nor is it necessary for me
to do so, because I consider these acts as amounting to imprisonment.
That word I understand to mean any restraint of the person by force. In
Buller’s Nisi Prius, p. 22, it is said: “Every restraint of a man’s
liberty under the custody of another, either in a gaol, house, stocks,
or in the street, is in law an imprisonment; and whenever it is done
without a proper authority, is false imprisonment, for which the law
gives an action; and this is commonly joined to assault and battery; for
every imprisonment includes a battery, and every battery an assault.” It
appears, therefore, that the technical language has received a very
large construction, and that there need not be any touching of the
person: a locking up would constitute an imprisonment, without touching.
From the language of Thorpe, C. J., which Mr. Selwyn cites from the Book
of Assizes, it appears that, even in very early times, restraint of
liberty by force was understood to be the reasonable definition of
imprisonment.

I had no idea that any person in these times supposed any particular
boundary to be necessary to constitute imprisonment, or that the
restraint of a man’s person from doing what he desires ceases to be an
imprisonment because he may find some means of escape.

It is said that the party here was at liberty to go in another
direction. I am not sure that in fact he was, because the same unlawful
power which prevented him from taking one course might, in case of
acquiescence, have refused him any other. But this liberty to do
something else does not appear to me to affect the question of
imprisonment. As long as I am prevented from doing what I have a right
to do, of what importance is it that I am permitted to do something
else? How does the imposition of an unlawful condition show that I am
not restrained? If I am locked in a room, am I not imprisoned, because I
might effect my escape through a window, or because I might find an exit
dangerous or inconvenient to myself, as by wading through water, or by
taking a route so circuitous that my necessary affairs should suffer by
delay?

It appears to me that this is a total deprivation of liberty with
reference to the purpose for which he lawfully wished to employ his
liberty; and, being effected by force, it is not the mere obstruction of
a way, but a restraint of the person. The case cited as occurring before
Lord Chief Justice Tindal, as I understand it, is much in point. He held
it an imprisonment where the defendant stopped the plaintiff on his road
till he had read a libel to him. Yet he did not prevent his escaping in
another direction.

It is said that if any damage arises from such obstruction, a special
action on the case may be brought. Must I then sue out a new writ
stating that the defendant employed direct force to prevent my going
where my business called me, whereby I sustained loss? And if I do, is
it certain that I shall not be told that I have misconceived my remedy,
for all flows from the false imprisonment, and that should have been the
subject of an action of trespass and assault? For the jury properly
found that the whole of the defendant’s conduct was continuous: it
commenced in illegality; and the plaintiff did right to resist it as an
outrageous violation of the liberty of the subject from the very first.

                                                    _Rule absolute._[35]



                               CHAPTER II
                         NEGLIGENT INTERFERENCE


                               SECTION I
                  NEGLIGENCE AS A GROUND OF LIABILITY


                            WEAVER _v._ WARD
                IN THE KING’S BENCH, EASTER TERM, 1616.
                       _Reported in Hobart, 134._

Weaver brought an action of trespass of assault and battery against
Ward. The defendant pleaded that he was, amongst others, by the
commandment of the lords of the council, a trained soldier in London, of
the band of one Andrews, captain, and so was the plaintiff: and that
they were skirmishing with their muskets charged with powder for their
exercise _in re militari_ against another captain and his band; and as
they were so skirmishing, the defendant, _casualiter et per infortunium
et contra voluntatem suam_, in discharging his piece, did hurt and wound
the plaintiff; which is the same, &c., _absque hoc_, that he was guilty
_aliter sive alio modo_. And, upon demurrer by the plaintiff, judgment
was given for him; for, though it were agreed that if men tilt or
tourney in the presence of the king, or if two masters of defence
playing their prizes kill one another, that this shall be no felony, or
if a lunatic kill a man, or the like; because felony must be done _animo
felonico_; yet, in trespass, which tends only to give damages according
to hurt or loss, it is not so; and therefore, if a lunatic hurt a man,
he shall be answerable in trespass,[36] and, therefore, no man shall be
excused of a trespass (for this is the nature of an excuse, and not of a
justification, _prout ei bene licuit_), except it may be judged utterly
without his fault; as if a man by force take my hand and strike you, or
if here the defendant had said that the plaintiff ran across his piece
when it was discharging, or had set forth the case with the
circumstances so as it had appeared to the court that it had been
inevitable, and that the defendant had committed no negligence to give
occasion to the hurt.[37]


                           BROWN _v._ KENDALL
       SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER TERM, 1850.
                     _Reported in 6 Cushing, 292._

This was an action of trespass for assault and battery, originally
commenced against George K. Kendall, the defendant, who died pending the
suit, and his executrix was summoned in.

It appeared in evidence, on the trial, which was before Wells, C. J., in
the Court of Common Pleas, that two dogs, belonging to the plaintiff and
the defendant, respectively, were fighting in the presence of their
masters; that the defendant took a stick about four feet long, and
commenced beating the dogs in order to separate them; that the plaintiff
was looking on, at the distance of about a rod, and that he advanced a
step or two towards the dogs. In their struggle, the dogs approached the
place where the plaintiff was standing. The defendant retreated
backwards from before the dogs, striking them as he retreated; and as he
approached the plaintiff, with his back towards him, in raising his
stick over his shoulder, in order to strike the dogs, he accidentally
hit the plaintiff in the eye, inflicting upon him a severe injury.

Whether it was necessary or proper for the defendant to interfere in the
fight between the dogs; whether the interference, if called for was in a
proper manner, and what degree of care was exercised by each party on
the occasion; were the subject of controversy between the parties, upon
all the evidence in the case, of which the foregoing is an outline.

The defendant requested the judge to instruct the jury, that “if both
the plaintiff and defendant at the time of the blow were using ordinary
care, or if at that time the defendant was using ordinary care and the
plaintiff was not, or if at that time both plaintiff and defendant were
not using ordinary care, then the plaintiff could not recover.”

The defendant further requested the judge to instruct the jury, that,
“under the circumstances, if the plaintiff was using ordinary care and
the defendant was not, the plaintiff could not recover, and that the
burden of proof on all these propositions was on the plaintiff.”

The judge declined to give the instructions, as above requested, but
left the case to the jury under the following instructions: “If the
defendant, in beating the dogs, was doing a necessary act, or one which
it was his duty under the circumstances of the case to do, and was doing
it in a proper way; then he was not responsible in this action, provided
he was using ordinary care at the time of the blow. If it was not a
necessary act; if he was not in duty bound to attempt to part the dogs,
but might with propriety interfere or not as he chose; the defendant was
responsible for the consequences of the blow, unless it appeared that he
was in the exercise of extraordinary care, so that the accident was
inevitable, using the word inevitable not in a strict but a popular
sense.”

“If, however, the plaintiff, when he met with the injury, was not in the
exercise of ordinary care, he cannot recover, and this rule applies,
whether the interference of the defendant in the fight of the dogs was
necessary or not. If the jury believe, that it was the duty of the
defendant to interfere, then the burden of proving negligence on the
part of the defendant, and ordinary care on the part of the plaintiff,
is on the plaintiff. If the jury believe, that the act of interference
in the fight was unnecessary, then the burden of proving extraordinary
care on the part of the defendant, or want of ordinary care on the part
of the plaintiff, is on defendant.”

The jury under these instructions returned a verdict for the plaintiff;
whereupon the defendant alleged exceptions.

SHAW, C. J. This is an action of trespass, _vi et armis_, brought by
George Brown against George K. Kendall, for an assault and battery; and
the original defendant having died pending the action, his executrix has
been summoned in. The rule of the common law, by which this action would
abate by the death of either party, is reversed in this Commonwealth by
statute, which provides that actions of trespass for assault and battery
shall survive. Rev. Sts. c. 93, § 7.

The facts set forth in the bill of exceptions preclude the supposition,
that the blow, inflicted by the hand of the defendant upon the person of
the plaintiff, was intentional. The whole case proceeds on the
assumption, that the damage sustained by the plaintiff, from the stick
held by the defendant, was inadvertent and unintentional; and the case
involves the question how far, and under what qualifications, the party
by whose unconscious act the damage was done is responsible for it. We
use the term “unintentional” rather than involuntary, because in some of
the cases, it is stated, that the act of holding and using a weapon or
instrument, the movement of which is the immediate cause of hurt to
another, is a voluntary act, although its particular effect in hitting
and hurting another is not within the purpose or intention of the party
doing the act.

It appears to us, that some of the confusion in the cases on this
subject has grown out of the long-vexed question, under the rule of the
common law, whether a party’s remedy, where he has one, should be sought
in an action of the case, or of trespass. This is very distinguishable
from the question, whether in a given case, any action will lie. The
result of these cases is, that if the damage complained of is the
immediate effect of the act of the defendant, trespass _vi et armis_
lies; if consequential only, and not immediate, case is the proper
remedy. Leame _v._ Bray, 3 East, 593; Huggett _v._ Montgomery, 2 B. & P.
N. R. 446, Day’s Ed., and notes.

In these discussions, it is frequently stated by judges, that when one
receives injury from the direct act of another, trespass will lie. But
we think this is said in reference to the question, whether trespass and
not case will lie, assuming that the facts are such, that some action
will lie. These _dicta_ are no authority, we think, for holding, that
damage received by a direct act of force from another will be sufficient
to maintain an action of trespass, whether the act was lawful or
unlawful, and neither wilful, intentional, or careless. In the principal
case cited, Leame _v._ Bray, the damage arose from the act of the
defendant, in driving on the wrong side of the road, in a dark night,
which was clearly negligent, if not unlawful. In the course of the
argument of that case (p. 595), Lawrence, J., said: “There certainly are
cases in the books, where, the injury being direct and immediate,
trespass has been holden to lie, though the injury was not intentional.”
The term “injury” implies something more than damage; but, independently
of that consideration, the proposition may be true, because though the
injury was unintentional, the act may have been unlawful or negligent,
and the cases cited by him are perfectly consistent with that
supposition. So the same learned judge in the same case says (p. 597),
“No doubt trespass lies against one who drives a carriage against
another, whether done wilfully or not.” But he immediately adds,
“Suppose one who is driving a carriage is negligently and heedlessly
looking about him, without attending to the road when persons are
passing, and thereby runs over a child and kills him, is it not
manslaughter? and if so, it must be trespass; for every manslaughter
includes trespass;” showing what he understood by a case not wilful.

We think, as the result of all the authorities, the rule is correctly
stated by Mr. Greenleaf, that the plaintiff must come prepared with
evidence to show either that the _intention_ was unlawful, or that the
defendant was _in fault_; for if the injury was unavoidable, and the
conduct of the defendant was free from blame, he will not be liable. 2
Greenl. Ev. §§ 85–92. Wakeman _v._ Robinson, 1 Bing. 213. If, in the
prosecution of a lawful act, a casualty purely accidental arises, no
action can be supported for an injury arising therefrom. Davis _v._
Saunders, 2 Chit. R. 639; Com. Dig. Battery, A. (Day’s Ed.) and notes;
Vincent _v._ Stinehour, 7 Vt. 62. In applying these rules to the present
case, we can perceive no reason why the instructions asked for by the
defendant ought not to have been given; to this effect, that if both
plaintiff and defendant at the time of the blow were using ordinary
care, or if at that time the defendant was using ordinary care, and the
plaintiff was not, or if at that time, both the plaintiff and defendant
were not using ordinary care, then the plaintiff could not recover.

In using this term, ordinary care, it may be proper to state, that what
constitutes ordinary care will vary with the circumstances of cases. In
general, it means that kind and degree of care, which prudent and
cautious men would use, such as is required by the exigency of the case,
and such as is necessary to guard against probable danger. A man, who
should have occasion to discharge a gun, on an open and extensive marsh,
or in a forest, would be required to use less circumspection and care,
than if he were to do the same thing in an inhabited town, village, or
city. To make an accident, or casualty, or, as the law sometimes states
it, inevitable accident, it must be such an accident as the defendant
could not have avoided by the use of the kind and degree of care
necessary to the exigency, and in the circumstances in which he was
placed.

We are not aware of any circumstances in this case, requiring a
distinction between acts which it was lawful and proper to do, and acts
of legal duty. There are cases, undoubtedly, in which officers are bound
to act under process, for the legality of which they are not
responsible, and perhaps some others in which this distinction would be
important. We can have no doubt that the act of the defendant in
attempting to part the fighting dogs, one of which was his own, and for
the injurious acts of which he might be responsible, was a lawful and
proper act, which he might do by proper and safe means. If, then, in
doing this act, using due care and all proper precautions necessary to
the exigency of the case, to avoid hurt to others, in raising his stick
for that purpose, he accidentally hit the plaintiff in his eye, and
wounded him, this was the result of pure accident, or was involuntary
and unavoidable, and therefore the action would not lie. Of if the
defendant was chargeable with some negligence, and if the plaintiff was
also chargeable with negligence, we think the plaintiff cannot recover
without showing that the damage was caused wholly by the act of the
defendant, and that the plaintiff’s own negligence did not contribute as
an efficient cause to produce it.

The court instructed the jury, that if it was not a necessary act, and
the defendant was not in duty bound to part the dogs, but might with
propriety interfere or not as he chose, the defendant was responsible
for the consequences of the blow, unless it appeared that he was in the
exercise of extraordinary care, so that the accident was inevitable,
using the word not in a strict but a popular sense. This is to be taken
in connection with the charge afterwards given, that if the jury
believed, that the act of interference in the fight was unnecessary
(that is, as before explained, not a duty incumbent on the defendant),
then the burden of proving extraordinary care on the part of the
defendant, or want of ordinary care on the part of plaintiff, was on the
defendant.

The court are of opinion that these directions were not conformable to
law. If the act of hitting the plaintiff was unintentional, on the part
of the defendant, and done in the doing of a lawful act, then the
defendant was not liable, unless it was done in the want of exercise of
due care, adapted to the exigency of the case, and therefore such want
of due care became part of the plaintiff’s case, and the burden of proof
was on the plaintiff to establish it. 2 Greenl. Ev. § 85; Powers _v._
Russell, 13 Pick. 69, 76; Tourtellot _v._ Rosebrook, 11 Met. 460.

Perhaps the learned judge, by the use of the term extraordinary care, in
the above charge, explained as it is by the context, may have intended
nothing more than that increased degree of care and diligence, which the
exigency of particular circumstances might require, and which men of
ordinary care and prudence would use under like circumstances, to guard
against danger. If such was the meaning of this part of the charge, then
it does not differ from our views, as above explained. But we are of
opinion, that the other part of the charge, that the burden of proof was
on the defendant, was incorrect. Those facts which are essential to
enable the plaintiff to recover, he takes the burden of proving. The
evidence may be offered by the plaintiff or by the defendant; the
question of due care, or want of care, may be essentially connected with
the main facts, and arise from the same proof; but the effect of the
rule, as to the burden of proof, is this, that when the proof is all in,
and before the jury, from whatever side it comes, and whether directly
proved, or inferred from circumstances, if it appears that the defendant
was doing a lawful act, and unintentionally hit and hurt the plaintiff,
then unless it also appears to the satisfaction of the jury, that the
defendant is chargeable with some fault, negligence, carelessness, or
want of prudence, the plaintiff fails to sustain the burden of proof,
and is not entitled to recover.

                                                 _New trial ordered_[38]


                          STANLEY _v._ POWELL
            IN THE QUEEN’S BENCH DIVISION, NOVEMBER 3, 1890.
               _Reported in [1891] 1 Queen’s Bench, 86._

DENMAN, J. This case was tried before me and a special jury at the last
Maidstone Summer Assizes.[39]

In the statement of claim the plaintiff alleged that the defendant had
_negligently and wrongfully and unskilfully_ fired his gun and wounded
the plaintiff in his eye, and that the plaintiff, in consequence, had
lost his sight and suffered other damage. The defendant denied the
negligence alleged. After the evidence on both sides, which was
conflicting, had been heard, I left the three following questions to the
jury: 1. Was the plaintiff injured by a shot from defendant’s gun? 2.
Was the defendant guilty of negligence in firing the charge to which
that shot belonged as he did? 3. Damages.

The undisputed facts were, that on Nov. 29, 1888, the defendant and
several others were pheasant shooting in a party, some being inside and
some outside of a wood which the beaters were beating. The right of
shooting was in one Greenwood, who was of the party. The plaintiff was
employed by Greenwood to carry cartridges and the game which might be
shot. Several beaters were driving the game along a plantation of
saplings towards an open drive. The plaintiff stood just outside a gate
which led into a field outside the plantation, at the end of the drive.
The defendant was walking along in that field a few yards from the hedge
which bounded the plantation. As he was walking along a pheasant rose
inside the plantation; the defendant fired one barrel at this bird, and,
according to the evidence for the defendant, struck it with his first
shot. There was a considerable conflict of evidence as to details; but
the jury must, I think, be taken to have adopted the version of the
facts sworn to by the defendant’s witnesses. They swore that the bird,
when struck by the first shot, began to lower and turn back towards the
beaters, whereupon the defendant fired his second barrel and killed the
bird, but that a shot, glancing from the bough of an oak which was in or
close to the hedge, and, striking the plaintiff, must have caused the
injury complained of. The oak in question, according to the defendant’s
evidence, was partly between the defendant and the bird when the second
barrel was fired, but it was not in a line with the plaintiff, but, on
the contrary, so much out of that line, that the shot must have been
diverted to a considerable extent from the direction in which the gun
must have been pointed in order to hit the plaintiff. The distance
between the plaintiff and the defendant, in a direct line, when the
second barrel was fired, was about thirty yards. The case for the
plaintiff was entirely different; but I think it must be held that the
jury took the defendant’s account of the matter, for they found the
second question left to them in the negative. Before summing up the case
to the jury, I called the attention of the parties to the doctrine which
seemed to have been laid down in some old cases—that, even in the
absence of negligence, an action of trespass might lie; and it was
agreed that I should leave the question of negligence to the jury, but
that, if necessary, the pleadings were deemed to have been amended so as
to raise any case or defence open upon the facts with liberty to the
court to draw inferences of fact, and that the damages should be
assessed contingently. The jury assessed them at £100. I left either
party to move the court for judgment; but it was afterwards agreed that
the case should be argued before myself on further consideration, and
that I should give judgment, notwithstanding that I had left the parties
to move the court, as though I had originally reserved it for further
consideration before myself.

Having heard the arguments, I am of opinion that, by no amendment that
could be made consistently with the finding of the jury could I properly
give judgment for the plaintiff. It was contended on his behalf that
this was a case in which an action of trespass would have lain before
the Judicature Acts; and this contention was mainly founded on certain
_dicta_ which, until considered with reference to those cases in which
they are uttered, seem to support that contention; but no decision was
quoted, nor do I think that any can be found which goes so far as to
hold, that if A. is injured by a shot from a gun fired at a bird by B.,
an action of trespass will necessarily lie, even though B. is proved to
have fired the gun without negligence and without intending to injure
the plaintiff or to shoot in his direction.

The jury having found that there was no negligence on the part of the
defendant, the most favorable way in which it is now possible to put the
case for the plaintiff is to consider the action as brought for a
trespass, and to consider that the defendant has put upon the record a
defence denying negligence, and specifically alleging the facts, sworn
to by his witnesses, which the jury must be considered to have found
proved, and then to consider whether those facts, coupled with the
absence of negligence established by the jury, amount to an excuse in
law.

The earliest case relied upon by the plaintiff was one in the year-book
21 Hen. 7, 28 A., which is referred to by Grose, J., in the course of
the argument in Leame _v._ Bray, 3 East, 593, to be mentioned presently,
in these words: “There is a case put in the year-book, 21 Hen. 7, 28 A.,
that where one shot an arrow at a mark which glanced from it and struck
another, it was holden to be trespass.” Returning to the case in the
year-book, it appears that the passage in question was a mere _dictum_
of Rede, who (see 5 Foss’ Lives of the Judges, p. 230) was at the time
(1506) either a judge of the King’s Bench or C. J. of the Common Pleas,
which he became in October in that year, in a case of a very different
kind from that in question, and it only amounts to a statement that an
action of trespass may lie even where the act done by the defendant is
_unintentional_. The words relied on are, “_Mes ou on tire a les buts et
blesse un home, coment que est incontre sa volonte, il sera dit un
trespassor incontre son entent._” But in that very passage Rede makes
observations which show that he has in his mind cases in which that
which would be _prima facie_ a trespass may be excused. The next case in
order of date relied upon for the plaintiff was Weaver _v._ Ward,
decided in 1607. There is no doubt that that case contains _dicta_ which
_per se_ would be in favor of the plaintiff, but it also contains the
following summing up of the law applicable to cases of unintentional
injury by acts which are _prima facie_ trespasses: “Therefore, no man
shall be excused of a trespass ... except it may be judged utterly
without his fault,” showing clearly that there may be such cases. That
case, after all, only decided that where the plaintiff and defendant
were skirmishing as soldiers of the train-band, and the one,
“_casualiter, et per infortunium, et contra voluntatem suam_” (which
must be translated “accidentally and involuntarily”) shot the other, an
action of trespass would lie, _unless_ he could show that such
involuntary and accidental shooting was done under such circumstances as
utterly to negative negligence. Such cases may easily be supposed, in
which there could be no two opinions about the matter; but other cases
may, as the present case did, involve considerable conflicts of evidence
and opinion which until recently a jury only could dispose of. The case
of Gibbons _v._ Pepper, 4 Mod. 405, decided in 1695, merely decided that
a plea merely showing that an accident caused by a runaway horse was
_inevitable_, was a bad plea in an action of trespass, because, if
_inevitable_, that was a defence under the general issue. It was a mere
decision on the pleading, and laid down nothing as regards the point
raised in the present case. The concluding words of the judgment, which
show clearly the _ratio decidendi_ of that case, are these: “He should
have pleaded the general issue, for if the horse ran away against his
will he would have been found _not guilty_, because in such a case it
cannot be said with any color of reason to be a battery in the rider.”
The more modern cases of Wakeman _v._ Robinson and Hall _v._ Fearnley,
lay down the same rule as regards the pleading point, though the former
case may also be relied upon as an authority by way of _dictum_ in favor
of the plaintiff, and the latter may be fairly relied upon by the
defendant; for Wightman, J., in his judgment explains Wakeman _v._
Robinson thus: “The act of the defendant” (viz., driving the cart at the
very edge of a narrow pavement on which the plaintiff was walking, so as
to knock the plaintiff down) “was _prima facie_ unjustifiable, and
required an excuse to be shown. When the motion in this case was first
made, I had in my recollection the case of Wakeman _v._ Robinson. It was
there agreed that an _involuntary_ act might be a defence on the general
issue. The decision indeed turned on a different point; but the general
proposition is laid down. I think the _omission to plead_ the defence
here deprived the defendant of the benefit of it, and entitled the
plaintiff to recover.”

But in truth neither case decides whether, where an act such as
discharging a gun is voluntary, but the result injurious without
negligence, an action of trespass can nevertheless be supported as
against a plea pleaded and proved, and which the jury find established,
to the effect that there was no negligence on the part of the defendant.

The case of Underwood _v._ Hewson, 1 Str. 596, decided in 1724, was
relied on for the plaintiff. The report is very short. “The defendant
was uncocking a gun, and the plaintiff standing to see it, it went off
and wounded him; and at the trial it was held that the plaintiff might
maintain trespass—Strange _pro defendente_.” The marginal note in
Nolan’s edition of 1795, not necessarily Strange’s own composition, is
this: “Trespass lies for an accidental hurt;” and in that edition there
is a reference to Buller’s N. P., p. 16. On referring to Buller, p. 16,
where he is dealing with Weaver _v._ Ward, I find he writes as follows:
“So (it is no battery) if one soldier hurt another in exercise; but if
he plead it he must set forth the circumstances, so as to make it appear
to the court that it was inevitable, and that he committed no negligence
to give occasion to the hurt, for it is not not enough to say that he
did it _casualiter, et per infortunium, et contra voluntatem suam_; for
no man shall be excused of a trespass, unless it be justified entirely
without his default: Weaver _v._ Ward; and, therefore, it has been
holden that an action lay where the plaintiff standing by to see the
defendant uncock his gun was accidentally wounded: Underwood _v._
Hewson.” On referring back to Weaver _v._ Ward, I can find nothing in
the report to show that the court held, that in order to constitute a
defence in the case of a trespass it is necessary to show that the act
was _inevitable_. If _inevitable_, it would seem that there was a
defence under the general issue; but a distinction is drawn between an
act which is inevitable and an act which is excusable, and what Weaver
_v._ Ward really lays down is that “no man shall be excused of a
trespass except it may be judged utterly without his fault.”

Day _v._ Edwards, D. & E. 5 T. R. 648 (1794), merely decides that where
a man negligently _drives_ a cart against the plaintiff’s carriage, the
injury being committed by the _immediate_ act complained of, the remedy
must be trespass, and not case.

But the case upon which most reliance was placed by the plaintiff’s
counsel was Leame _v._ Bray, 3 East, 593. That was an action of trespass
in which the plaintiff complained that the defendant with force and arms
drove and struck a chaise which he was driving on the highway against
the plaintiff’s curricle, which the plaintiff’s servant was driving, by
means whereof the servant was thrown out, and the horses ran away, and
the plaintiff, who jumped out to save his life, was injured. The facts
stated in the report include a statement that “the accident happened in
a dark night, owing to the defendant driving his carriage on the wrong
side of the road, and the parties not being able to see each other; and
that if the defendant had kept his right side there was ample room for
the carriages to have passed without injury.” The report goes on to
state: “But it did not appear that blame was imputable to the defendant
in any _other_ respect as to the manner of his driving. It was therefore
objected for the defendant, that the injury _having happened from
negligence_ and not wilfully, the proper remedy was by an action on the
case, and not of trespass _vi et armis_; and the plaintiff was thereupon
nonsuited.” On the argument of the rule to set aside the verdict the
whole discussion turned upon the question whether the injury was, as put
by Lawrence, J., at p. 596 of the report, immediate from the defendant’s
act, or consequential only from it, and in the result the nonsuit was
set aside. But it clearly appears from the report that there was
evidence upon which the jury might have found negligence, and indeed the
defendant’s counsel assumed it in the very objection which prevailed
with Lord Ellenborough when he nonsuited the plaintiff. There is nothing
in any of the judgments to show that if in that case a plea had been
pleaded denying any negligence, and the jury had found that the
defendant was not guilty of any negligence, but (for instance) that the
accident happened wholly through the darkness of the night making it
impossible to distinguish one side of the road from the other and
without negligence on either side, the court would have held that the
defendant would have been liable either in trespass or in case.

All the cases to which I have referred were before the Court of
Exchequer in 1875, in the case of Holmes _v._ Mather, and Bramwell, B.,
in giving judgment in that case, dealt with them thus: “As to the cases
cited, most of them are really decisions on the form of action, whether
case or trespass. The result of them is this, and it is intelligible
enough: if the act that does an injury is an act of direct force _vi et
armis_, trespass is the proper remedy (if there is any remedy), where
the act is wrongful either as being wilful or as being the result of
negligence. Where the act is not wrongful for either of these reasons,
no action is maintainable, though trespass would be the proper form of
action if it were wrongful. That is the effect of the decisions.”

This view of the older authorities is in accordance with a passage cited
by Mr. Dickens from Bacon’s Abridgment, Trespass, I., p. 706, with a
marginal reference to Weaver _v._ Ward. In Bacon the word “inevitable”
does not find a place. “If the circumstance which is specially pleaded
in an action of trespass do not make the act complained of lawful” (by
which I understand justifiable even if purposely done to the extent of
purposely inflicting the injury, as, for instance, in a case of
self-defence) “and only make it excusable, it is proper to plead this
circumstance in excuse; and it is in this case necessary for the
defendant to show not only that the act complained of was accidental”
(by which I understand, “that the injury was unintentional”), “but
likewise that it was not owing to neglect or want of due caution.” In
the present case the plaintiff sued in respect of an injury owing to the
defendant’s negligence,—there was no pretence for saying that it was
intentional so far as any injury to the plaintiff was concerned,—and the
jury negatived such negligence. It was argued that nevertheless,
inasmuch as the plaintiff was injured by a shot from the defendant’s
gun, that was an injury owing to an act of force committed by the
defendant, and therefore an action would lie. I am of opinion that this
is not so, and that against any statement of claim which the plaintiff
could suggest the defendant must succeed if he were to plead the facts
sworn to by the witnesses for the defendant in this case, and the jury
believing those facts, as they must now be taken by me to have done,
found the verdict which they have found as regards negligence. In other
words, I am of opinion that if the case is regarded as an action on the
case for an injury by negligence the plaintiff has failed to establish
that which is the very gist of such an action; if, on the other hand, it
is turned into an action for trespass, and the defendant is (as he must
be) supposed to have pleaded a plea denying negligence and establishing
that the injury was accidental in the sense above explained, the verdict
of the jury is equally fatal to the action. I am, therefore, of opinion
that I am bound to give judgment for the defendant. As to costs, they
must follow, unless the defendant foregoes his right.

                                       _Judgment for the defendant._[40]


                SULLIVAN _v._ OLD COLONY STREET RAILWAY
       SUPREME JUDICIAL COURT, MASSACHUSETTS, NOVEMBER 30, 1908.
             _Reported in 200 Massachusetts Reports, 303._

Tort. The first count in the declaration alleged that, while the
plaintiff was a passenger on an electric car of the defendant, the car
was derailed at Tiverton, owing to the defendant’s negligence, “whereby
the plaintiff was jolted and in many ways injured externally and
internally.”

At the trial, plaintiff testified substantially to the same effect as
the allegations in the declaration. As to the derailment, he testified
that it was violent and that he was much thrown about. The evidence for
the defendant tended to show that there was practically no jar when the
car left the rails at Tiverton.

At the close of the evidence plaintiff requested, among others, the
following ruling:—

“1. Upon all the evidence the plaintiff is entitled to recover on the
first count.”

The judge refused to so rule.

The judge instructed the jury, in part, as follows:—

“The only matters, then, of damages for you to consider are these:
First, what was the effect upon the plaintiff of the jolts when the car
was derailed? To what extent did they injure the plaintiff?”

Plaintiff excepted to the charge. Verdict for defendant.[41]

SHELDON, J. No question was made at the trial but that the defendant was
liable for any injury done to the plaintiff by reason of its car having
left the track. But if no injury was caused by this to the plaintiff, if
he suffered no damage whatever from the defendant’s negligence, then he
would not be entitled to recover. Although there has been negligence in
the performance of a legal duty, yet it is only those who have suffered
damage therefrom that may maintain an action therefor. Heaven _v._
Pender, 11 Q. B. D. 503, 507; Farrell _v._ Waterbury Horse Railroad, 60
Conn. 239, 246; Salmon _v._ Delaware, Lackawanna & Western Railroad, 19
Vroom, 5, 11; 2 Cooley on Torts (3d ed.), 791; Wharton on Negligence (2d
ed.), sect. 3. In cases of negligence, there is no such invasion of
rights as to entitle plaintiff to recover at least nominal damages, as
in Hooten _v._ Barnard, 137 Mass. 36, and McAneany _v._ Jewett, 10
Allen, 151.[42] Accordingly, the first and second of the plaintiff’s
requests for rulings could not have been given, and the rulings made
were all that the plaintiff was entitled to.

                                             _Exceptions overruled._[43]


                            HART _v._ ALLEN
            SUPREME COURT, PENNSYLVANIA, OCTOBER TERM, 1833.
                      _Reported in 2 Watts, 114._

Action on the case against owners of a vessel.[44] Plaintiff put in
evidence a bill of lading of chests of tea shipped on board defendant’s
vessel; “to be delivered in good order, unavoidable accidents and the
dangers of the river excepted....” Plaintiff also proved that the teas
were delivered by defendants in a damaged state, owing to their having
been wet. Defendants gave evidence that the boat, when on her passage up
the river, was driven by a sudden squall of wind and snow sidewise,
whereby the teas were wet and damaged; that she was well fitted for the
voyage; that every exertion was made to save her; and that Samuel
Johnston, the captain, was a man of experience. To rebut this the
plaintiff gave evidence that Samuel Johnston was not an experienced
boatman or pilot.

Judgment below for plaintiff. The original defendants brought error. One
of the errors assigned was as follows:—

The court below erred in charging the jury, that although the accident
in this case resulted from the act of God, and could not have been
prevented by any human prudence or foresight; and although it would, in
this respect, come within the exception that excuses the carrier in case
of loss: still, if the crew of the boat was not sufficient, or if she
was not under the control of a master or pilot sufficiently skilled to
perform the duties corresponding to his station, the carrier cannot
avail himself of the exception, nor excuse himself from responsibility
to the owner, to the extent of the injury done to the goods. And also,
in substance, that if the jury think that the boat was not fit for the
voyage, or the master not competent, or the crew insufficient; they
ought to find a verdict for the plaintiff, whatever might be their
opinion as to the real cause of the upsetting of the boat.

GIBSON, C. J.: Had the judge said no more than that the carrier is bound
to provide a carriage or vessel in all respects adequate to the purpose,
with a conductor or crew of competent skill or ability, and that
“failing in these particulars, though the loss be occasioned by the act
of God, he shall not set up a providential calamity to protect himself
against what _may_ have arisen from his own folly;” there would have
been no room for an exception. But the cause was eventually put to the
jury on a different principle: “though the accident resulted from the
act of God,” it was said, “_and could not have been prevented by any
human prudence or foresight_, and though it would in this respect
otherwise have come within the exception that excuses the carrier in
case of loss: still, if the crew of the office [?] were not sufficient,
or if she were not under the control of a master or pilot sufficiently
skilful to perform the duties correspondent to his station, the carrier
cannot avail himself of the exception.” By this the jury were
instructed, in accordance, as it was supposed, with the principle of
Bell _v._ Reed and Beelor, 4 Binn. 127, that want of seaworthiness has
the peculiar effect of casting every loss, from whatever cause, on the
carrier, as a penalty, I presume, for his original delinquency, and not
for its actual or supposed instrumentality in contributing to the
disaster, which is admitted to have been produced, in this instance, by
causes unconnected with the master or crew, and to have been of a nature
which no human force or sagacity could control.

Does such a penalty necessarily result from the nature of the contract?
A carrier is answerable for the consequences of negligence, not the
abstract existence of it. Where the goods have arrived safe, no action
lies against him for an intervening but inconsequential act of
carelessness; nor can it be set up as a defence against payment of the
freight; and for this plain reason, that the risk from it was all his
own. Why, then, should it, in any other case, subject him to a loss
which it did not contribute to produce, or give an advantage to one who
was not prejudiced by it? It would require much to reconcile to any
principle of policy or justice, a measure of responsibility which would
cast the burthen of the loss on a carrier whose wagon had been snatched
away by a whirlwind in crossing a bridge, merely because it had not been
furnished with a proper cover or tilt to protect the goods from the
weather. Yet the omission to provide such a cover would be gross
negligence, but, like that imputed to the carrier in the case before us,
such as could have had no imaginable effect on the event. A carrier is
an insurer against all losses without regard to degrees of negligence in
the production of them, except such as have been caused by an act of
providence, or the common enemy: and why is he so? Undoubtedly to
subserve the purposes, not of justice in the particular instance, but of
policy and convenience: of policy, by removing from him all temptation
to confederate with robbers or thieves—and of convenience, by relieving
the owner of the goods from the necessity of proving actual negligence,
which, the fact being peculiarly within the knowledge of the carrier or
his servants, could seldom be done. Jones on Bail. 108, 109; 2 Kent, 59,
78. Such are the rule and the reason of it, and such is the exception.
But we should enlarge the rule, or to speak more properly, narrow the
exception far beyond the exigencies of policy or convenience, did we
hold him an insurer against even the acts of providence, as a punishment
for an abstract delinquency, where there was no room for the existence
of a confederacy, or the operation of actual negligence; and to carry a
responsibility, founded in no principle of natural equity beyond the
requirements of necessity, would be gratuitous injustice. A delinquency
which might have contributed to the disaster, such, for instance, as is
imputable to the owner of a ship driven on a lee shore, for a defect in
the rigging or sails, would undoubtedly be attended with different
consequences; for as it would be impossible to ascertain the exact
effect of the delinquency on the event, the loss would have to be borne
by the delinquent on a very common principle, by which any one whose
carelessness has increased the danger of injury from a sudden commotion
of the elements, is chargeable with all the mischief that may ensue: as
in Turberville _v._ Stamp, Skin. 681, where it was adjudged, that the
negligent keeping of fire in a close would subject the party to all the
consequences, though proximately produced by a sudden storm; and the
same principle was held by this court in The Lehigh Bridge Company _v._
The Lehigh Navigation, 4 Rawle, 9. But it would be too much to require
of the carrier to make good a loss from shipwreck, for having omitted to
provide the ship with proper papers, which are a constituent part of
seaworthiness, and the omission of them an undoubted negligence.

                  *       *       *       *       *

The first question, therefore, will be, whether the captain and crew of
the boat had the degree of ability and skill thus indicated; and if it
be found that they had not, then the second question will be, whether
the want of it contributed in any degree to the actual disaster: but if
either of these be found for the carrier, it will be decision
[decisive?] of the cause. It seems, therefore, that ... the cause ought
to be put, on these principles, to another jury.

                  _Judgment reversed, and a venire de novo awarded_.[45]


                               SECTION II
                           INTERESTS SECURED


                    SPADE _v._ LYNN & BOSTON R. CO.
          SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 19, 1897.
             _Reported in 168 Massachusetts Reports, 285._

Tort, for personal injuries occasioned to the plaintiff by the alleged
negligence of the defendant. The declaration contained three counts.

The third count[46] alleged that while the plaintiff was a passenger in
the defendant’s car, and in the exercise of due care, “one of the
defendant’s agents or servants, in attempting to remove from the said
car a certain person claimed and alleged by said defendant’s agent to be
noisy, turbulent, and unfit to remain as a passenger in said car,
conducted himself with such carelessness, negligence, and with the use
of such unnecessary force, that said agent and servant, acting thus
negligently, created a disorder, disturbance, and quarrel in said car,
and thereby frightened the plaintiff and subjected her to a severe
nervous shock, by which nervous shock the plaintiff was physically
prostrated and suffered, and has continued to suffer, great mental and
physical pain and anguish, and has been put to great expense.”

The defendant’s answer was a general denial.

Trial in the Superior Court, before MASON, C. J.

The plaintiff testified, among other things, that the conductor in
putting off an intoxicated man twitched him in such a way as to push
another intoxicated man over on to the plaintiff. The evidence for the
defendant tended to disprove plaintiff’s claim that either of the
intoxicated persons came in contact with her, or assaulted her.

The defendant requested (_inter alia_) an instruction, that there was no
evidence to warrant a verdict on the third count. This request was
refused.

The judge instructed the jury as follows:—

“Now there is a third count to which attention must be called. If the
jury should find that there was no bodily injury to the plaintiff direct
from the acts of the conductor, that is, no person was thrown against
the plaintiff, if that statement is not accurate, the plaintiff still
contends that if the manner of the removal was such that it occasioned
fright and nervous shock that resulted in bodily injury, that she is
still entitled to recover for that bodily injury. And I have to say to
you as matter of law, that if the wrongful acts of the conductor, on the
occasion of removing the disorderly passenger, did occasion fright and
nervous shock to the plaintiff, by reason of which she sustained bodily
injury, that she can recover compensation for that injury.

“It is settled law in this State that a person cannot recover for mere
fright, fear or mental distress occasioned by the negligence of another,
which does not result in bodily injury.

                  *       *       *       *       *

“But when the fright or fear or nervous shock produces a bodily injury,
then there may be recovery for that bodily injury, and for all the pain,
mental or otherwise, which may arise out of that bodily injury. The
brain and the nervous system are so closely connected with the mind, are
the instruments by which the mind communicates with the body and
operates upon it, that we sometimes deal with the nervous conditions as
if they were mental conditions, and possibly the testimony has to some
extent treated them as one. But for the purpose of the principle which I
am now stating, a clear distinction exists between what is mental and
what is nervous. The nervous system, the brain and the nerve fibres, are
a part of the body, and injury to them is bodily injury. Now if by the
wrongful acts of this defendant or its agents, there was a mental shock,
fright, and it ended with that, there can be no recovery. But if that
mental shock produced a bodily injury, a disturbance of the brain or
nervous system which continued and caused subsequent suffering, there
may be recovery for that bodily injury and all that follows from it.”

To the above instructions, the defendant excepted.

Verdict for plaintiff.

ALLEN, J. This case presents a question which has not heretofore been
determined in this Commonwealth, and in respect to which the decisions
elsewhere have not been uniform. It is this: whether in an action to
recover damages for an injury sustained through the negligence of
another, there can be a recovery for a bodily injury caused by mere
fright and mental disturbance. The jury were instructed that a person
cannot recover for mere fright, fear or mental distress occasioned by
the negligence of another, which does not result in bodily injury,[47]
but that when the fright or fear or nervous shock produces a bodily
injury, there may be a recovery for that bodily injury, and for all the
pain, mental or otherwise, which may arise out of that bodily injury.

In Canning _v._ Williamstown, 1 Cush. 451, it was held, in an action
against a town to recover damages for an injury sustained by the
plaintiff in consequence of a defective bridge, that he could not
recover if he sustained no injury to his person, but merely incurred
risk and peril which caused fright and mental suffering. In Warren _v._
Boston & Maine Railroad, 163 Mass. 484, the evidence tended to show that
the defendant’s train struck the carriage of the plaintiff, thereby
throwing him out upon the ground, and it was held to be a physical
injury to the person to be thrown out of a wagon, or to be compelled to
jump out, even although the harm consists mainly of nervous shock. It
was not therefore a case of mere fright, and resulting nervous shock.

The case calls for a consideration of the real ground upon which the
liability or non-liability of a defendant guilty of negligence in a case
like the present depends. The exemption from liability for mere fright,
terror, alarm, or anxiety does not rest on the assumption that these do
not constitute an actual injury. They do in fact deprive one of
enjoyment and of comfort, cause real suffering, and to a greater or less
extent disqualify one for the time being from doing the duties of life.
If these results flow from a wrongful or negligent act, a recovery
therefor cannot be denied on the ground that the injury is fanciful and
not real. Nor can it be maintained that these results may not be the
direct and immediate consequence of the negligence. Danger excites
alarm. Few people are wholly insensible to the emotions caused by
imminent danger, though some are less affected than others.

It must also be admitted that a timid or sensitive person may suffer not
only in mind, but also in body, from such a cause. Great emotion may and
sometimes does produce physical effects. The action of the heart, the
circulation of the blood, the temperature of the body, as well as the
nerves and the appetite, may all be affected. A physical injury may be
directly traceable to fright, and so may be caused by it. We cannot say,
therefore, that such consequences may not flow proximately from
unintentional negligence, and if compensation in damages may be
recovered for a physical injury so caused, it is hard on principle to
say why there should not also be a recovery for the mere mental
suffering when not accompanied by any perceptible physical effects.

It would seem, therefore, that the real reason for refusing damages
sustained from mere fright must be something different; and it probably
rests on the ground that in practice it is impossible satisfactorily to
administer any other rule. The law must be administered in the courts
according to general rules. Courts will aim to make these rules as just
as possible, bearing in mind that they are to be of general application.
But as the law is a practical science, having to do with the affairs of
life, any rule is unwise if in its general application it will not as a
usual result serve the purposes of justice. A new rule cannot be made
for each case, and there must therefore be a certain generality in rules
of law, which in particular cases may fail to meet what would be
desirable if the single case were alone to be considered.

Rules of law respecting the recovery of damages are framed with
reference to the just rights of both parties; not merely what it might
be right for an injured person to receive, to afford just compensation
for his injury, but also what it is just to compel the other party to
pay. One cannot always look to others to make compensation for injuries
received. Many accidents occur, the consequences of which the sufferer
must bear alone. And in determining the rules of law by which the right
to recover compensation for unintended injury from others is to be
governed, regard must chiefly be paid to such conditions as are usually
found to exist. Not only the transportation of passengers and the
running of trains, but the general conduct of business and of the
ordinary affairs of life, must be done on the assumption that persons
who are liable to be affected thereby are not peculiarly sensitive, and
are of ordinary physical and mental strength. If, for example, a
traveller is sick or infirm, delicate in health, specially nervous or
emotional, liable to be upset by slight causes, and therefore requiring
precautions which are not usual or practicable for travellers in
general, notice should be given, so that, if reasonably practicable,
arrangements may be made accordingly, and extra care be observed.[48]
But, as a general rule, a carrier of passengers is not bound to
anticipate or to guard against an injurious result which would only
happen to a person of peculiar sensitiveness. This limitation of
liability for injury of another description is intimated in Allsop _v._
Allsop, 5 H. & N. 534, 538, 539. One may be held bound to anticipate and
guard against the probable consequences to ordinary people, but to carry
the rule of damages further imposes an undue measure of responsibility
upon those who are guilty only of unintentional negligence. The general
rule limiting damages in such a case to the natural and probable
consequences of the acts done is of wide application, and has often been
expressed and applied. Lombard _v._ Lennox, 155 Mass. 70; White _v._
Dresser, 135 Mass. 150; Fillebrown _v._ Hoar, 124 Mass. 580; Derry _v._
Flitner, 118 Mass. 131; Milwaukee & St. Paul Railway _v._ Kellogg, 94 U.
S. 469, 475; Wyman _v._ Leavitt, 71 Maine, 227; Ellis _v._ Cleveland, 55
Vt. 358; Phillips _v._ Dickerson, 85 Ill. 11; Hampton _v._ Jones, 58
Iowa, 317; Renner _v._ Canfield, 36 Minn. 90; Lynch _v._ Knight, 9 H. L.
Cas. 577, 591, 595, 598; The Notting Hill, 9 P. D. 105; Hobbs _v._
London & Southwestern Railway, L. R. 10 Q. B. 111, 122.

The law of negligence in its special application to cases of accidents
has received great development in recent years. The number of actions
brought is very great. This should lead courts well to consider the
grounds on which claims for compensation properly rest, and the
necessary limitations of the right to recover. We remain satisfied with
the rule that there can be no recovery for fright, terror, alarm,
anxiety, or distress of mind, if these are unaccompanied by some
physical injury; and if this rule is to stand, we think it should also
be held that there can be no recovery for such physical injuries as may
be caused solely by such mental disturbance, where there is no injury to
the person from without. The logical vindication of this rule is, that
it is unreasonable to hold persons who are merely negligent bound to
anticipate and guard against fright and the consequences of fright; and
that this would open a wide door for unjust claims, which could not
successfully be met. These views are supported by the following
decisions: Victorian Railways Commissioners _v._ Coultas, 13 App. Cas.
222; Mitchell _v._ Rochester Railway, 151 N. Y. 107; Ewing _v._
Pittsburg, Cincinnati, Chicago & St. Louis Railway, 147 Penn. St. 40;
Haile _v._ Texas & Pacific Railway, 60 Fed. Rep. 557.

In the following cases, a different view was taken: Bell _v._ Great
Northern Railway, 26 L. R. (Ir.) 428; Purcell _v._ St. Paul City
Railway, 48 Minn. 134; Fitzpatrick _v._ Great Western Railway, 12 U. C.
Q. B. 645. See also Beven, Negligence, 77 _et seq._

It is hardly necessary to add that this decision does not reach those
classes of actions where an intention to cause mental distress or to
hurt the feelings is shown, or is reasonably to be inferred, as for
example, in cases of seduction, slander, malicious prosecution or
arrest, and some others. Nor do we include cases of acts done with gross
carelessness or recklessness, showing utter indifference to such
consequences, when they must have been in the actor’s mind. Lombard _v._
Lennox, and Fillebrown _v._ Hoar, already cited. Meagher _v._ Driscoll,
99 Mass. 281.

In the present case, no such considerations entered into the rulings or
were presented by the facts. The entry therefore must be

                                             _Exceptions sustained._[49]


                       DULIEU _v._ WHITE AND SONS
                  KING’S BENCH DIVISION, JUNE 5, 1901.
               _Reported in [1901] 2 King’s Bench, 669._

Point of law raised by pleadings.[50]

The statement of claim was as follows:—

“1. The plaintiff is the wife of Arthur David Dulieu, who carries on the
business of a licensed victualler at the Bonner Arms, Bonner Street,
Bethnal Green, in the county of London.

“2. On July 20, 1900, the plaintiff was behind the bar of her husband’s
said public-house, she being then pregnant, when the defendants by their
servant so negligently drove a pair-horse van as to drive it into the
said public-house.

“3. The defendants were also negligent in entrusting the driving of the
said horses and van to their said servant, who had no knowledge or skill
in driving.

“4. The plaintiff in consequence sustained a severe shock, and was and
is seriously ill, and on September 29, 1900, gave premature birth to a
child.

“5. In consequence of the shock sustained by the plaintiff the said
child was born an idiot.

“The plaintiff claims damages in respect of the aforesaid matters.”

The statement of defence, after denying the allegations contained in the
statement of claim proceeded:—

“3. The defendants submit as a matter of law that the damages sought to
be recovered herein are too remote, and that the statement of claim on
the face thereof discloses no cause of action.”

                                                       _Cur. adv. vult._

KENNEDY, J. In this case the only question for the judgment of the court
is in the nature of a demurrer.

                  *       *       *       *       *

The head of damage alleged in paragraph 5 was rightly treated by the
plaintiff’s counsel as untenable.

The defendant’s counsel summed up his contention against the legal
validity of the plaintiff’s claim in the statement that no action for
negligence will lie where there is no immediate physical injury
resulting to the plaintiff.

                  *       *       *       *       *

This is an action on the case for negligence—that is to say, for a
breach on the part of the defendant’s servant of the duty to use
reasonable and proper care and skill in the management of the
defendant’s van. In order to succeed, the plaintiff has to prove
resulting damage to herself and “a natural and continuous sequence
uninterruptedly connecting the breach of duty with the damage as cause
and effect.” Shearman and Redfield, Negligence, cited in Beven,
Negligence in Law, 2d ed. p. 7. In regard to the existence of the duty
here, there can, I think, be no question. The driver of a van and horses
in a highway owes a duty to use reasonable and proper care and skill so
as not to injure either persons lawfully using the highway, or property
adjoining the highway, or persons who, like the plaintiff are lawfully
occupying that property. His legal duty towards all appears to me to be
practically identical in character and in degree. I understood the
plaintiff’s counsel to suggest that there might exist a higher degree of
duty towards the plaintiff sitting in a house than would have existed
had she been in the street. I am not satisfied that this is so. The
wayfarer in the street, as it seems to me, has in law as much right of
redress if he is injured in person or in property by the negligence of
another as the man who is lawfully sitting on a side-wall or in an
adjoining house. “The whole law of negligence assumes the principle of
‘Volenti non fit injuria’ not to be applicable,” for reasons which Sir
Frederick Pollock points out (The Law of Torts, by Sir F. Pollock, 6th
ed. pp. 166, 167), in a passage which follows the quotation which I have
just made. The legal obligations of the driver of horses are the same, I
think, towards the man indoors as to the man out of doors; the only
question here is whether there is an actionable breach of those
obligations if the man in either case is made ill in body by such
negligent driving as does not break his ribs but shocks his nerves.

Before proceeding to consider the objections to the maintenance of such
a claim as that of the present plaintiff, it is, I think, desirable for
clearness’ sake to see exactly what are the facts which ought to be
assumed for the purposes of the argument. We must assume in her favor
all that can be assumed consistently with the allegations of the
statement of claim. We must, therefore, take it as proved that the
negligent driving of the defendants’ servant reasonably and naturally
caused a nervous or mental shock to the plaintiff by her reasonable
apprehension of immediate bodily hurt, and that the premature
childbirth, with the physical pain and suffering which accompanied it,
was a natural and a direct consequence of the shock. I may just say in
passing that I use the words “nervous” and “mental” as interchangeable
epithets on the authority of the judgment of the Privy Council in
Victorian Railways Commissioners _v._ Coultas, 13 App. Cas. 222; but I
venture to think “nervous” is probably the more correct epithet where
terror operates through parts of the physical organism to produce bodily
illness as in the present case. The use of the epithet “mental” requires
caution, in view of the undoubted rule that merely mental pain
unaccompanied by any injury to the person cannot sustain an action of
this kind. Beven, Negligence in Law, 2d ed. p. 77.

Now, these being the assumed facts, what are the defendants’ arguments
against the plaintiff’s right to recover damages in this action?

First of all, it is argued, fright caused by negligence is not in itself
a cause of action—ergo, none of its consequences can give a cause of
action. In Mitchell _v._ Rochester Ry. Co., (1896) 151 N. Y. 107, the
point is put thus: “That the result may be nervous disease, blindness,
insanity, or even a miscarriage, in no way changes the principle. These
results merely show the degree of fright or the extent of the damages.
The right of action must still depend upon the question whether a
recovery may be had for fright.” With all respect to the learned judges
who have so held, I feel a difficulty in following this reasoning. No
doubt damage is an essential element in a right of action for
negligence. I cannot successfully sue him who has failed in his duty of
using reasonable skill and care towards me unless I can prove some
material and measurable damage. If his negligence has caused me neither
injury to property nor physical mischief, but only an unpleasant emotion
of more or less transient duration, an essential constituent of a right
of action for negligence is lacking. “Fear,” as Sir Frederick Pollock
has stated (The Law of Torts, 6th ed. p. 51), “taken alone falls short
of being actual damage not because it is a remote or unlikely
consequence, but because it can be proved and measured only by physical
effects.” It may, I conceive, be truly said that, viewed in relation to
an action for negligence, direct bodily impact is, without resulting
damage, as insufficient a ground of legal claim as the infliction of
fright. That fright—where physical injury is directly produced by
it—cannot be a ground of action merely because of the absence of any
accompanying impact appears to me to be a contention both unreasonable
and contrary to the weight of authority.

[The learned judge then cited cases in which an action was held to lie,
where the only physical impact did not accompany but was a consequence
of the fright; also a case where there was nothing in the nature of
impact and yet recovery was allowed.]

If impact be not necessary, and if, as must be assumed here, the fear is
proved to have naturally and directly produced physical effects, so that
the ill results of the negligence which caused the fear are as
measurable in damages as the same results would be if they arose from an
actual impact, why should not an action for those damages lie just as
well as it lies where there has been an actual impact? It is not,
however, to be taken that in my view every nervous shock occasioned by
negligence and producing physical injury to the sufferer gives a cause
of action. There is, I am inclined to think, at least one limitation.
The shock, where it operates through the mind, must be a shock which
arises from a reasonable fear of immediate personal injury to oneself.
A. has, I conceive, no legal duty not to shock B.’s nerves by the
exhibition of negligence towards C., or towards the property of B. or C.
The limitation was applied by Wright and Bruce, JJ., in the unreported
case of Smith _v._ Johnson & Co., referred to by Wright, J., at the
close of his judgment in Wilkinson _v._ Downton, [1897] 2 Q. B. 57, at
p. 61. In Smith _v._ Johnson & Co. (unreported), a man was killed by the
defendant’s negligence in the sight of the plaintiff, and the plaintiff
became ill, not from the shock produced by fear of harm to himself, but
from the shock of seeing another person killed. The court held that this
harm was too remote a consequence of the negligence.[51] I should
myself, as I have already indicated, have been inclined to go a step
further, and to hold upon the facts in Smith _v._ Johnson & Co. that, as
the defendant neither intended to affect the plaintiff injuriously nor
did anything which could reasonably or naturally be expected to affect
him injuriously, there was no evidence of any breach of legal duty
towards the plaintiff or in regard to him of that absence of care
according to the circumstances which Willes, J., in Vaughan _v._ Taff
Vale Ry. Co., (1860) 5 H. & N. 679, at p. 688, gave as a definition of
negligence.

                  *       *       *       *       *

In order to illustrate my meaning in the concrete, I say that I should
not be prepared in the present case to hold that the plaintiff was
entitled to maintain this action if the nervous shock was produced, not
by the fear of bodily injury to herself, but by horror or vexation
arising from the sight of mischief being threatened or done either to
some other person, or to her own or her husband’s property, by the
intrusion of the defendants’ van and horses. The cause of the nervous
shock is one of the things which the jury will have to determine at the
trial.

It remains to consider the second and somewhat different form in which
the defendants’ counsel put his objection to the right of the plaintiff
to maintain this action. He contended that the damages are too remote,
and relied much upon the decision of the Privy Council in Victorian
Railways Commissioners _v._ Coultas, 13 App. Cas. 222.

                  *       *       *       *       *

The principal ground of their judgment is formulated in the following
sentence: “Damages arising from mere sudden terror unaccompanied by any
actual physical injury, but occasioning a nervous or mental shock,
cannot under such circumstances, their Lordships think, be considered a
consequence which, in the ordinary course of things, would flow from the
negligence of the gate-keeper.”

                  *       *       *       *       *

Why is the accompaniment of physical injury essential? For my own part,
I should not like to assume it to be scientifically true that a nervous
shock which causes serious bodily illness is not actually accompanied by
physical injury, although it may be impossible, or at least difficult,
to detect the injury at the time in the living subject. I should not be
surprised if the surgeon or the physiologist told us that nervous shock
is or may be in itself an injurious affection of the physical organism.
Let it be assumed, however, that the physical injury follows the shock,
but that the jury are satisfied upon proper and sufficient medical
evidence that it follows the shock as its direct and natural effect, is
there any legal reason for saying that the damage is less proximate in
the legal sense than damage which arises contemporaneously? “As well
might it be said” (I am quoting from the judgment of Palles, C. B., 26
L. R. Ir. at p. 439) “that a death caused by poison is not to be
attributed to the person who administered it because the mortal effect
is not produced contemporaneously with its administration.” Remoteness
as a legal ground for the exclusion of damage in an action of tort
means, not severance in point of time, but the absence of direct and
natural causal sequence—the inability to trace in regard to the damage
the “propter hoc” in a necessary or natural descent from the wrongful
act. As a matter of experience, I should say that the injury to health
which forms the main ground of damages in actions of negligence, either
in cases of railway accidents or in running-down cases, frequently is
proved, not as a concomitant of the occurrence, but as one of the
sequelæ.

                  *       *       *       *       *

[As to Mitchell _v._ Rochester Ry. Co., 151 N. Y. 107, cited by
defendant.] Shortly, the facts there were that the plaintiff, whilst
waiting for a tram-car, was nearly run over by the negligent management
of the defendant’s servant of a car drawn by a pair of horses, and owing
to terror so caused fainted, lost consciousness, and subsequently had a
miscarriage and consequent illness.

                  *       *       *       *       *

It may be admitted that the plaintiff in this American case would not
have suffered exactly as she did, and probably not to the same extent as
she did, if she had not been pregnant at the time; and no doubt the
driver of the defendant’s horses could not anticipate that she was in
this condition. But what does that fact matter? If a man is negligently
run over or otherwise negligently injured in his body, it is no answer
to the sufferer’s claim for damages that he would have suffered less
injury, or no injury at all, if he had not had an unusually thin skull
or an unusually weak heart.

[After commenting on the opinion in Spade _v._ Lynn & Boston R. R., 168
Mass. 285.]

Naturally one is diffident of one’s opinion when one finds that it is
not in accord with those which have been expressed by such judicial
authorities as those to which I have just referred. But certainly, if,
as is admitted, and I think justly admitted, by the Massachusetts
judgment, a claim for damages for physical injuries naturally and
directly resulting from nervous shock which is due to the negligence of
another in causing fear of immediate bodily hurt is in principle not too
remote to be recoverable in law, I should be sorry to adopt a rule which
would bar all such claims on grounds of policy alone, and in order to
prevent the possible success of unrighteous or groundless actions. Such
a course involves the denial of redress in meritorious cases, and it
necessarily implies a certain degree of distrust, which I do not share,
in the capacity of legal tribunals to get at the truth in this class of
claims. My experience gives me no reason to suppose that a jury would
really have more difficulty in weighing the medical evidence as to the
effects of nervous shock through fright, than in weighing the like
evidence as to the effects of nervous shock through a railway collision
or a carriage accident, where, as often happens, no palpable injury, or
very slight palpable injury, has been occasioned at the time.

I have now, I think, dealt with the authorities and the arguments upon
which the defendants rely, and I have done so at greater length than I
should have wished to do but for the general interest of the points
involved and the difficulties which the conflict of authorities
undoubtedly present. In this conflict I prefer, as I have already
indicated, the two decisions of the Irish courts. They seem to me to
constitute strong and clear authorities for the plaintiff’s contention.
It was suggested on the part of the defendants that the applicability of
the judgment in Bell _v._ Great Northern Company of Ireland, 26 L. R.
Ir. 428, is affected by the fact that the female in that action was a
passenger on the defendant’s railway, and as such had contractual
rights. It appears to me that in the circumstances this fact can make no
practical difference whatever. In the Irish case there was no special
contract, no notice to the railway company, when they accepted her as a
passenger, that she was particularly delicate, or peculiarly nervous or
liable to fright. The contractual duty existed, as it often does exist,
concurrently with the duty apart from contract; but the one is in such
circumstances practically co-extensive with the other in the rights
which it gives and the corresponding liabilities which it imposes.

I hold that, if on the trial of this action the jury find the issues
left to them as the jury found them in Bell _v._ Great Northern Railway
Company of Ireland, 26 L. R. Ir. 428, after the direction of Andrews,
J., which was approved by the Exchequer Division, the plaintiff will
have made out a good cause of action.

PHILLIMORE, J.

                  *       *       *       *       *

I think there may be cases in which A. owes a duty to B. not to inflict
a mental shock on him or her, and that in such a case, if A. does
inflict such a shock upon B.—as by terrifying B.—and physical damage
thereby ensues, B. may have an action for the physical damage, though
the medium through which it has been inflicted is the mind.

                  *       *       *       *       *

I think there is some assistance to be got from the cases where fear of
impending danger has induced a passenger to take means of escape which
have in the result proved injurious to him, and where the carrier has
been held liable for these injuries, as in Jones _v._ Boyce, 1 Stark.
493.

                  *       *       *       *       *

[The learned judge thought it possible that he might have come to the
same conclusion as that arrived at in Victorian Railways Commissioners
_v._ Coultas, though not for the reasons which have prominence in the
judgment. He also thought that he should have come to the same decision
as the Massachusetts court in Spade _v._ Lynn & Boston R. R.; but that
he should not have expressed it in such broad and sweeping language.]

                  *       *       *       *       *

In the case before us the plaintiff, a pregnant woman, was in her house.
It is said that she was not the tenant in possession and could not
maintain trespass _quare clausum fregit_ if this had been a direct act
of the defendant and not of his servant (as it was). This is true: her
husband was in possession. But none the less it was her home, where she
had a right, and on some occasions a duty, to be; and it seems to me
that if the tenant himself could maintain an action, his wife or child
could do likewise. It is averred that by reason of the careless driving
of the defendants’ servant a pair-horse van came some way into the room,
and so frightened her that serious physical consequences thereby befell
her. If these averments be proved, I think that there was a breach of
duty to her for which she can have damages. The difficulty in these
cases is to my mind not one as to the remoteness of the damage, but as
to the uncertainty of there being any duty. Once get the duty and the
physical damage following on the breach of duty, and I hold that the
fact of one link in the chain of causation being mental only makes no
difference. The learned counsel for the plaintiff has put it that every
link is physical in the narrow sense. That may be or may not be. For
myself, it is unimportant.

                  *       *       *       *       *

                                           _Judgment for plaintiff._[52]


                         WILKINSON _v._ DOWNTON
                  QUEEN’S BENCH DIVISION, MAY 8, 1897.
               _Law Reports, [1897] 2 Queen’s Bench, 57._

WRIGHT, J.[53] In this case the defendant, in the execution of what he
seems to have regarded as a practical joke, represented to the plaintiff
that he was charged by her husband with a message to her to the effect
that her husband was smashed up in an accident, and was lying at The
Elms at Leytonstone with both legs broken, and that she was to go at
once in a cab with two pillows to fetch him home. All this was false.
The effect of the statement on the plaintiff was a violent shock to her
nervous system, producing vomiting and other more serious and permanent
physical consequences at one time threatening her reason, and entailing
weeks of suffering and incapacity to her as well as expense to her
husband for medical attendance. These consequences were not in any way
the result of previous ill-health or weakness of constitution; nor was
there any evidence of predisposition to nervous shock or any other
idiosyncrasy.

In addition to these matters of substance there is a small claim for
1_s._ 10½_d._ for the cost of railway fares of persons sent by the
plaintiff to Leytonstone in obedience to the pretended message. As to
this 1_s._ 10½_d._ expended in railway fares on the faith of the
defendant’s statement, I think the case is clearly within the decision
in Pasley _v._ Freeman, (1789) 3 T. R. 51. The statement was a
misrepresentation intended to be acted on to the damage of the
plaintiff.

The real question is as to the 100_l._, the greatest part of which is
given as compensation for the female plaintiff’s illness and suffering.
It was argued for her that she is entitled to recover this as being
damage caused by fraud, and therefore within the doctrine established by
Pasley _v._ Freeman, (1789) 3 T. R. 51, and Langridge _v._ Levy, (1837)
2 M. & W. 519. I am not sure that this would not be an extension of that
doctrine, the real ground of which appears to be that a person who makes
a false statement intended to be acted on must make good the damage
naturally resulting from its being acted on. Here there is no injuria of
that kind. I think, however, that the verdict may be supported upon
another ground. The defendant has, as I assume for the moment, wilfully
done an act calculated to cause physical harm to the plaintiff—that is
to say, to infringe her legal right to personal safety, and has in fact
thereby caused physical harm to her. That proposition without more
appears to me to state a good cause of action, there being no
justification alleged for the act. This wilful injuria is in law
malicious, although no malicious purpose to cause the harm which was
caused nor any motive of spite is imputed to the defendant.

It remains to consider whether the assumptions involved in the
proposition are made out. One question is whether the defendant’s act
was so plainly calculated to produce some effect of the kind which was
produced that an intention to produce it ought to be imputed to the
defendant, regard being had to the fact that the effect was produced on
a person proved to be in an ordinary state of health and mind. I think
that it was. It is difficult to imagine that such a statement, made
suddenly and with apparent seriousness, could fail to produce grave
effects under the circumstances upon any but an exceptionally
indifferent person, and therefore an intention to produce such an effect
must be imputed, and it is no answer in law to say that more harm was
done than was anticipated, for that is commonly the case with all
wrongs. The other question is whether the effect was, to use the
ordinary phrase, too remote to be in law regarded as a consequence for
which the defendant is answerable. Apart from authority, I should give
the same answer and on the same ground as the last question, and say
that it was not too remote. Whether, as the majority of the House of
Lords thought in Lynch _v._ Knight, (1861) 9. H. L. C. 577, at pp. 592,
596, the criterion is in asking what would be the natural effect on
reasonable persons, or whether, as Lord Wensleydale thought (9 H. L. C.
587, at p. 600), the possible infirmities of human nature ought to be
recognized, it seems to me that the connection between the cause and the
effect is sufficiently close and complete. It is, however, necessary to
consider two authorities which are supposed to have laid down that
illness through mental shock is a too remote or unnatural consequence of
an injuria to entitle the plaintiff to recover in a case where damage is
a necessary part of the cause of action. One is the case of Victorian
Railways Commissioners _v._ Coultas, 13 App. Cas. 222, where it was held
in the Privy Council that illness which was the effect of shock caused
by fright was too remote a consequence of a negligent act which caused
the fright, there being no physical harm immediately caused. That
decision was treated in the Court of Appeal in Pugh _v._ London,
Brighton and South Coast Ry. Co., [1896] 2 Q. B. 248, as open to
question. It is inconsistent with a decision in the Court of Appeal in
Ireland: Bell _v._ Great Northern Ry. Co. of Ireland, (1890) 26 L. R.
Ir. 428, where the Irish Exchequer Division refused to follow it; and it
has been disapproved in the Supreme Court of New York; see Pollock on
Torts, 4th ed. p. 47 (_n_). Nor is it altogether in point, for there was
not in that case any element of wilful wrong; nor perhaps was the
illness so direct and natural a consequence of the defendant’s conduct
as in this case. On these grounds it seems to me that the case of
Victorian Railways Commissioners _v._ Coultas, 13 App. Cas. 222, is not
an authority on which this case ought to be decided.

A more serious difficulty is the decision in Allsop _v._ Allsop, 5 H. &
N. 534, which was approved by the House of Lords in Lynch _v._ Knight, 9
H. L. C. 577. In that case it was held by Pollock, C. B., Martin,
Bramwell, and Wilde, BB., that illness caused by a slanderous imputation
of unchastity in the case of a married woman did not constitute such
special damage as would sustain an action for such a slander. That case,
however, appears to have been decided on the ground that in all the
innumerable actions for slander there were no precedents for alleging
illness to be sufficient special damage, and that it would be of evil
consequence to treat it as sufficient, because such a rule might lead to
an infinity of trumpery or groundless actions. Neither of these reasons
is applicable to the present case. Nor could such a rule be adopted as
of general application without results which it would be difficult or
impossible to defend. Suppose that a person is in a precarious and
dangerous condition, and another person tells him that his physician has
said that he has but a day to live. In such a case, if death ensued from
the shock caused by the false statement, I cannot doubt that at this day
the case might be one of criminal homicide, or that if a serious
aggravation of illness ensued damages might be recovered. I think,
however, that it must be admitted that the present case is without
precedent. Some English decisions—such as Jones _v._ Boyce, (1816) 1
Stark. 493; Wilkins _v._ Day, (1883) 12 Q. B. D. 110; Harris _v._ Mobbs,
(1878) 3 Ex. D. 268—are cited in Beven on Negligence as inconsistent
with the decision in Victorian Railways Commissioners _v._ Coultas, 13
App. Cas. 222. But I think that those cases are to be explained on a
different ground, namely, that the damage which immediately resulted
from the act of the passenger or of the horse was really the result not
of that act, but of a fright which rendered that act involuntary, and
which therefore ought to be regarded as itself the direct and immediate
cause of the damage. In Smith _v._ Johnson & Co. (unreported), decided
in January last, Bruce, J., and I held that where a man was killed in
the sight of the plaintiff by the defendant’s negligence, and the
plaintiff became ill, not from the shock from fear of harm to himself,
but from the shock of seeing another person killed, this harm was too
remote a consequence of the negligence. But that was a very different
case from the present.

There must be judgment for the plaintiff for 100_l._ 1_s._ 10½.

                                           _Judgment for plaintiff._[54]


                   YATES _v._ SOUTH KIRKBY COLLIERIES
                 IN THE COURT OF APPEAL, JULY 6, 1910.
               _Reported in [1910] 2 King’s Bench, 538._

Appeal against the award of the judge of the county court of Pontefract
sitting as arbitrator under the Workmen’s Compensation Act, 1906.

The question raised by this appeal was whether a nervous shock received
by a workman in the course of his employment was an “accident” which
entitled him to compensation under the Workmen’s Compensation Act, 1906.
The facts as found by the county court judge were as follows:—

In October, 1909, the applicant,—a collier, forty-six years of age, who
had been engaged in coal mining all his life, and for twenty-seven years
had been working at the face of the coal in the pit belonging to the
respondents,—while working as usual, heard a shout for help from the
next working place. He ran around his loose end at once and found a
fellow collier lying full length on the ground, having been knocked down
by a fallen timber prop and some coal; he was bleeding all over his head
and from his ears and eyes. The applicant picked him up in his arms and,
with assistance, carried him away; he was not dead at the time, but died
in a quarter of an hour. The effect on the applicant was such that he
sustained a nervous shock, which incapacitated him from working at the
coal face; he returned to his work on the Saturday, and at the order of
the under-manager on the Monday following, but on neither occasion was
he able to do work, and after describing to the under-manager and the
Government inspector on the Monday the details of what happened on the
Saturday he left the pit; he then consulted his doctor and has been
under his care since. In November he tried again to work, and went to
his old place, but though he stayed the shift he was unable to work, and
his brother, who was his mate, did it for him. In January, 1910, he
asked the under-manager for a by-work job, but the under-manager would
not give him one, and he had not worked since.

Proceedings for compensation having been taken, the county court judge
found as a fact that there was a genuine incapacity to work which was
due to the nervous shock which he sustained in October, 1909, when it
clearly was his duty to his employers to go to the assistance of the
injured collier who shouted for help from the next working place, and
that his doing so arose both “in course of” and “out of” his employment.
The learned county court judge accordingly awarded the applicant
compensation at 19_s._ a week to the date of the award, and 10_s._ a
week till further order.

The respondents appealed.[55]

FARWELL, L. J. I am of the same opinion. It is rightly conceded that it
was part of the man’s duty to go to the assistance of his fellow
workman. Therefore there is no question that the events arose “out of
and in the course of the employment.” The learned county court judge has
found as a fact that there was a genuine incapacity to work, which was
due to the nervous shock which the applicant sustained in October last.
In my opinion nervous shock due to accident which causes personal
incapacity to work is as much “personal injury by accident” as a broken
leg, for the reasons already expressed by this court in the case of
Eaves _v._ Blaenclydach Colliery Co., [1909] 2 K. B. 73. In truth I find
it difficult, when the medical evidence is that as a fact a workman is
suffering from a known complaint arising from nervous shock, to draw any
distinction between that case and the case of a broken limb. I see no
distinction for this purpose between the case of the guard who is not in
fact physically injured by an accident to his train, but who, after
assisting to carry away the wounded and dead, breaks down from nervous
shock, and the case of the guard who in similar circumstances stumbles
over some of the débris and breaks his leg.[56] The difficulty is to
prove the facts so as to avoid the risk of malingering, but when the
facts have been proved, the injury causing incapacity to work arises
from the accident in the one case just as much as in the other. I am,
therefore, of opinion that the judgment of the learned county court
judge must be affirmed.

KENNEDY, L. J. I am of the same opinion. It is beyond question that the
incapacity of the applicant has arisen in the course of and out of the
employment; and when you have a finding of fact by the learned county
court judge that there has been a nervous shock, and that that nervous
shock has produced a genuine condition of neurasthenia, I think myself
the recent authorities show that this judgment ought to be supported.
One knows perfectly well that neurasthenia, although there may be no
outward sign if you merely look at the person, is treated, and
successfully treated in some cases at any rate, by a treatment of the
body. Directly you have that which requires treatment of the body, it
means that a portion of that body (visible or invisible does not matter)
is in a state of ill-health, and, if the condition of neurasthenia
produces incapacity to work which has been brought about by something in
the nature of an accident which arose “out of and in the course of the
employment,” you have a case of “personal injury by accident” which is
within the Act.

                                                     _Appeal dismissed._


                              SECTION III
                          THE STANDARD OF CARE


                          VAUGHAN _v._ MENLOVE
                 IN THE COMMON PLEAS, JANUARY 23, 1837.
               _Reported in 3 Bingham’s New Cases, 468._

The declaration alleged, in substance, that plaintiff was the owner of
two cottages; that defendant owned land near to the said cottages; that
defendant had a rick or stack of hay near the boundary of his land which
was liable and likely to ignite, and thereby was dangerous to the
plaintiff’s cottages; that the defendant, well knowing the premises,
wrongfully and negligently kept and continued the rick in the aforesaid
dangerous condition; that the rick did ignite, and that plaintiff’s
cottages were burned by fire communicated from the rick or from certain
buildings of defendant’s which were set on fire by flames from the rick.

Defendant pleaded the general issue; and also several special pleas,
denying negligence.

At the trial it appeared that the rick in question had been made by the
defendant near the boundary of his own premises; that the hay was in
such a state when put together, as to give rise to discussions on the
probability of fire; that though there were conflicting opinions on the
subject, yet during a period of five weeks the defendant was repeatedly
warned of his peril; that his stock was insured; and that upon one
occasion, being advised to take the rick down to avoid all danger, he
said “he would chance it.” He made an aperture or chimney through the
rick; but in spite, or perhaps in consequence of this precaution, the
rick at length burst into flames from the spontaneous heating of its
materials; the flames communicated to the defendant’s barn and stables,
and thence to the plaintiff’s cottages, which were entirely destroyed.

Patteson, J., before whom the cause was tried, told the jury that the
question for them to consider was, whether the fire had been occasioned
by gross negligence on the part of the defendant; adding, that he was
bound to proceed with such reasonable caution as a prudent man would
have exercised under such circumstances.

A verdict having been found for the plaintiff, a rule nisi for a new
trial was obtained, on the ground that the jury should have been
directed to consider, not whether the defendant had been guilty of a
gross negligence with reference to the standard of ordinary prudence, a
standard too uncertain to afford any criterion, but whether he had acted
_bona fide_ to the best of his judgment; if he had, he ought not to be
responsible for the misfortune of not possessing the highest order of
intelligence. The action under such circumstances was of the first
impression.[57]

_Talfourd_, Serjt., and _Whately_, showed cause.

The pleas having expressly raised issues on the negligence of the
defendant, the learned judge could not do otherwise than leave that
question to the jury. The declaration alleges that the defendant knew of
the dangerous state of the rick, and yet negligently and improperly
allowed it to stand. The plea of not guilty, therefore, puts in issue
the scienter, it being of the substance of the issue: Thomas _v._
Morgan, 2 Cr. M. & R. 496. And the action, though new _in specie_, is
founded on a principle fully established, that a man must so use his own
property as not to injure that of others. On the same circuit a
defendant was sued a few years ago for burning weeds so near the
extremity of his own land as to set fire to and destroy his neighbors’
wood. The plaintiff recovered damages, and no motion was made to set
aside the verdict. Then, there were no means of estimating the
defendant’s negligence, except by taking as a standard the conduct of a
man of ordinary prudence: that has been the rule always laid down, and
there is no other that would not be open to much greater uncertainties.

_R. V. Richards_, in support of the rule.

First, there was no duty imposed on the defendant, as there is on
carriers or other bailees, under an implied contract, to be responsible
for the exercise of any given degree of prudence: the defendant had a
right to place his stack as near to the extremity of his own land as he
pleased, Wyatt _v._ Harrison, 3 B. & Adol. 871: under that right, and
subject to no contract, he can only be called on to act _bona fide_ to
the best of his judgment; if he has done that, it is a contradiction in
terms, to inquire whether or not he has been guilty of gross negligence.
At all events what would have been gross negligence ought to be
estimated by the faculties of the individual, and not by those of other
men. The measure of prudence varies so with the varying faculties of
men, that it is impossible to say what is gross negligence with
reference to the standard of what is called ordinary prudence. In Crook
_v._ Jadis, 5 B. & Adol. 910, Patteson, J., says, “I never could
understand what is meant by parties taking a bill under circumstances
which ought to have excited the suspicion of a prudent man;” and
Taunton, J., “I cannot estimate the degree of care which a prudent man
should take.”...

TINDAL, C. J. I agree that this is a case _primæ impressionis_; but I
feel no difficulty in applying to it the principles of law as laid down
in other cases of a similar kind. Undoubtedly this is not a case of
contract, such as a bailment or the like, where the bailee is
responsible in consequence of the remuneration he is to receive: but
there is a rule of law which says you must so enjoy your own property as
not to injure that of another; and according to that rule the defendant
is liable for the consequence of his own neglect: and though the
defendant did not himself light the fire, yet mediately he is as much
the cause of it as if he had himself put a candle to the rick; for it is
well known that hay will ferment and take fire if it be not carefully
stacked. It has been decided that if an occupier burns weeds so near the
boundary of his own land that damage ensues to the property of his
neighbor, he is liable to an action for the amount of injury done,
unless the accident were occasioned by a sudden blast which he could not
foresee. Turberville _v._ Stamp, 1 Salk. 13. But put the case of a
chemist making experiments with ingredients, singly innocent, but when
combined liable to ignite; if he leaves them together, and injury is
thereby occasioned to the property of his neighbor, can any one doubt
that an action on the case would lie?

It is contended, however, that the learned judge was wrong in leaving
this to the jury as a case of gross negligence, and that the question of
negligence was so mixed up with reference to what would be the conduct
of a man of ordinary prudence that the jury might have thought the
latter the rule by which they were to decide; that such a rule would be
too uncertain to act upon; and that the question ought to have been
whether the defendant had acted honestly and _bona fide_ to the best of
his own judgment. That, however, would leave so vague a line as to
afford no rule at all, the degree of judgment belonging to each
individual being infinitely various: and though it has been urged that
the care which a prudent man would take, is not an intelligible
proposition as a rule of law, yet such has always been the rule adopted
in cases of bailment, as laid down in Coggs _v._ Bernard, 2 Ld. Raym.
909. Though in some cases a greater degree of care is exacted than in
others, yet in “the second sort of bailment, viz., _commodatum_ or
lending gratis, the borrower is bound to the strictest care and
diligence to keep the goods so as to restore them back again to the
lender; because the bailee has a benefit by the use of them, so as if
the bailee be guilty of the least neglect he will be answerable; as if a
man should lend another a horse to go westward, or for a month; if the
bailee put this horse in his stable, and he were stolen from thence, the
bailee shall not be answerable for him; but if he or his servant leave
the house or stable doors open, and the thieves take the opportunity of
that, and steal the horse, he will be chargeable, because the neglect
gave the thieves the occasion to steal the horse.” The care taken by a
prudent man has always been the rule laid down; and as to the supposed
difficulty of applying it, a jury has always been able to say, whether,
taking that rule as their guide, there has been negligence on the
occasion in question.

Instead, therefore, of saying that the liability for negligence should
be co-extensive with the judgment of each individual, which would be as
variable as the length of the foot of each individual, we ought rather
to adhere to the rule, which requires in all cases a regard to caution
such as a man of ordinary prudence would observe.[58] That was in
substance the criterion presented to the jury in this case, and
therefore the present rule must be discharged.

[Concurring opinions were delivered by PARK, and VAUGHAN, JJ. GASELEE,
J. concurred in the result.]

                                                      _Rule discharged._


                  BLYTH _v._ BIRMINGHAM WATERWORKS CO.
                  IN THE EXCHEQUER, FEBRUARY 6, 1856.
                    _Reported in 11 Exchequer, 781._

This was an appeal by the defendants against the decision of the judge
of the County Court of Birmingham. The case was tried before a jury, and
a verdict found for the plaintiff for the amount claimed by the
particulars. The particulars of the claim alleged, that the plaintiff
sought to recover for damage sustained by the plaintiff by reason of the
negligence of the defendants in not keeping their water-pipes and the
apparatus connected therewith in proper order.

The case stated that the defendants were incorporated by stat. 7 Geo.
IV., c. cix., for the purpose of supplying Birmingham with water.

By the 84th section of their Act it was enacted, that the company
should, upon the laying down of any main-pipe or other pipe in any
street, fix, at the time of laying down such pipe, a proper and
sufficient fire-plug in each such street, and should deliver the key or
keys of such fire-plug to the persons having the care of the
engine-house in or near to the said street, and cause another key to be
hung up in the watch-house in or near to the said street. By sec. 87,
pipes were to be eighteen inches beneath the surface of the soil. By the
89th section, the mains were at all times to be kept charged with water.
The defendants derived no profit from the maintenance of the plugs
distinct from the general profits of the whole business, but such
maintenance was one of the conditions under which they were permitted to
exercise the privileges given by the Act. The main-pipe opposite the
house of the plaintiff was more than eighteen inches below the surface.
The fire-plug was constructed according to the best known system, and
the materials of it were at the time of the accident sound and in good
order. The apparatus connected with the fire-plug was as follows:—

The lower part of a wooden plug was inserted in a neck, which projected
above and formed part of the main. About the neck there was a bed of
brickwork puddled in with clay. The plug was also enclosed in a cast
iron tube, which was placed upon and fixed to the brickwork. The tube
was closed at the top by a movable iron stopper having a hole in it for
the insertion of the key, by which the plug was loosened when occasion
required it.

The plug did not fit tight to the tube, but room was left for it to move
freely. This space was necessarily left for the purpose of easily and
quickly removing the wooden plug to allow the water to flow. On the
removal of the wooden plug the pressure upon the main forced the water
up through the neck and cap to the surface of the street.

On the 24th of February, a large quantity of water, escaping from the
neck of the main, forced its way through the ground into the plaintiff’s
house. The apparatus had been laid down twenty-five years, and had
worked well during that time. The defendants’ engineer stated, that the
water might have forced its way through the brickwork round the neck of
the main, and that the accident might have been caused by the frost,
inasmuch as the expansion of the water would force up the plug out of
the neck, and the stopper being incrusted with ice would not suffer the
plug to ascend. One of the severest frosts on record set in on the 15th
of January, 1855, and continued until after the accident in question. An
incrustation of ice and snow had gathered about the stopper, and in the
street all round, and also for some inches between the stopper and the
plug. The ice had been observed on the surface of the ground for a
considerable time before the accident. A short time after the accident,
the company’s turncock removed the ice from the stopper, took out the
plug, and replaced it.

The judge left it to the jury to consider whether the company had used
proper care to prevent the accident. He thought, that, if the defendants
had taken out the ice adhering to the plug, the accident would not have
happened, and left it to the jury to say whether they ought to have
removed the ice. The jury found a verdict for the plaintiff for the sum
claimed.

_Field_, for the appellant. There was no negligence on the part of the
defendants. The plug was pushed out by the frost, which was one of the
severest ever known.

The Court then called on

_Kennedy_, for the respondent. The company omitted to take sufficient
precautions. The fire-plug is placed in the neck of the main. In
ordinary cases the plug rises and lets the water out; but here there was
an incrustation round the stopper, which prevented the escape of the
water. This might have been easily removed. It will be found, from the
result of the cases, that the company were bound to take every possible
precaution. The fact of premises being fired by sparks from an engine on
a railway is evidence of negligence: Piggott _v._ Eastern Counties
Railway Company, 3 C. B. 229 (E. C. L. R. vol. 54); Aldridge _v._ Great
Western Railway Company, 3 M. & Gr. 515 (Id. 42), 4 Scott, N. R. 156, 1
Dowl. N. S. 247, S. C. [MARTIN, B. I held, in a case tried at Liverpool,
in 1853, that, if locomotives are sent through the country emitting
sparks, the persons doing so incur all the responsibilities of insurers;
that they were liable for all the consequences.[59] I invited counsel to
tender a bill of exceptions to that ruling. Water is a different
matter.] It is the defendants’ water, therefore they are bound to see
that no injury is done to any one by it. An action has been held to lie
for so negligently constructing a hayrick at the extremity of the
owner’s land, that, by reason of its spontaneous ignition, his
neighbor’s house was burnt down: Vaughan _v._ Menlove, 3 Bing. N. C. 468
(E. C. L. R. vol. 32). [BRAMWELL, B. In that case discussions had arisen
as to the probability of fire, and the defendant was repeatedly warned
of the danger, and said he would chance it.] He referred to Wells _v._
Ody, 1 M. & W. 452. [ALDERSON, B. Is it an accident which any man could
have foreseen?] A scientific man could have foreseen it. If no eye could
have seen what was going on, the case might have been different; but the
company’s servants could have seen, and actually did see, the ice which
had collected about the plug. It is of the last importance, that these
plugs, which are fire-plugs, should be kept by the company in working
order. The accident cannot be considered as having been caused by the
act of God: Siordet _v._ Hall, 4 Bing. 607 (Id. 13).

ALDERSON, B. I am of opinion that there was no evidence to be left to
the jury. The case turns upon the question, whether the facts proved
show that the defendants were guilty of negligence. Negligence is the
omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man would
not do.[60] The defendants might have been liable for negligence, if,
unintentionally, they omitted to do that which a reasonable person would
have done, or did that which a person taking reasonable precautions
would not have done. A reasonable man would act with reference to the
average circumstances of the temperature in ordinary years. The
defendants had provided against such frosts as experience would have led
men, acting prudently, to provide against; and they are not guilty of
negligence, because their precautions proved insufficient against the
effects of the extreme severity of the frost of 1855, which penetrated
to a greater depth than any which ordinarily occurs south of the polar
regions. Such a state of circumstances constitutes a contingency against
which no reasonable man can provide. The result was an accident for
which the defendants cannot be held liable.

MARTIN, B. I think that the direction was not correct, and that there
was no evidence for the jury. The defendants are not responsible, unless
there was negligence on their part. To hold otherwise would be to make
the company responsible as insurers.

BRAMWELL, B. The Act of Parliament directed the defendants to lay down
pipes, with plugs in them, as safety-valves, to prevent the bursting of
the pipes. The plugs were properly made, and of proper material; but
there was an accumulation of ice about this plug, which prevented it
from acting properly. The defendants were not bound to keep the plugs
clear. It appears to me that the plaintiff was under quite as much
obligation to remove the ice and snow which had accumulated, as the
defendants. However that may be, it appears to me that it would be
monstrous to hold the defendants responsible because they did not
foresee and prevent an accident, the cause of which was so obscure, that
it was not discovered until many months after the accident had happened.

                         _Verdict to be entered for the defendants._[61]


                  YERKES _v._ NORTHERN PACIFIC R. CO.
              SUPREME COURT, WISCONSIN, NOVEMBER 29, 1901.
               _Reported in 112 Wisconsin Reports, 184._

DODGE, J.... Plaintiff assigns as error the definition of the due care
which plaintiff was bound to exercise to avert the charge of
contributory negligence, viz.:—

“The plaintiff cannot recover in this case unless you find that he was
in no manner guilty of any want of ordinary care, or such care as
persons of ordinary care ordinarily use, which contributed to his said
injuries.”[62]

That this was an incorrect and misleading definition of “ordinary care”
has been declared so often by this court as to make further discussion
unnecessary. The rule has been repeatedly laid down that due care is to
be tested by the surrounding circumstances, and that no definition is
complete or correct which does not embody that element.[63] Ordinary
care is the care ordinarily exercised by the great mass of mankind, or
its type, the ordinarily prudent person, under the same or similar
circumstances, and the omission of the last qualification, “under the
same or similar circumstances,” or “under like circumstances,” is error.
Boelter _v._ Ross L. Co., 103 Wis. 324, 330; Dehsoy _v._ Milwaukee E. R.
& L. Co., 110 Wis. 412; Warden _v._ Miller, _ante_, p. 67. The necessity
of the omitted qualification to a correct definition of due care is
especially obvious under the circumstances of this case. What would be
the care of an ordinarily prudent person, standing in safety upon a
stationary platform, or even standing upon the perfect and level
footboard of a moving switch engine, would not be the care to be
expected of one attempting to perform the services of a yard man upon a
bent, declining, and defective footboard such as here presented. The
attention of the jury was not called by this instruction to a very
important element which they must consider in order to decide whether
the plaintiff was or was not guilty of contributory negligence, and the
instruction to them on the subject was therefore misleading and
erroneous.


                           HILL _v._ GLENWOOD
                  SUPREME COURT, IOWA, JULY 13, 1904.
                  _Reported in 124 Iowa Reports, 479._

WEAVER, J.[64] The plaintiff claims to have been injured upon one of the
public walks in the city of Glenwood, and that such injury was
occasioned by reason of the negligence of the city in the maintenance of
the walk at the place of the accident, and without fault on his own part
contributing thereto. From verdict and judgment in his favor for $665,
the city appeals. In this court the appellant makes no claim that the
city was not negligent, but a reversal is sought on other grounds.

                  *       *       *       *       *

It was shown without dispute that plaintiff had been blind for many
years, and this fact is the basis of the criticism upon the charge given
to the jury. In the third paragraph of the charge, the court, defining
negligence, said: “(3) Negligence is defined to be the want of ordinary
care; that is, such care as an ordinary prudent person would exercise
under like circumstances. There is no precise definition of ordinary
care, but it may be said that it is such care as an ordinarily prudent
person would exercise under like circumstances, and should be
proportioned to the danger and peril reasonably to be apprehended from a
lack of proper prudence. This rule applies alike to both parties to this
action, and may be used in determining whether either was negligent.” In
the eighth paragraph, referring to the plaintiff’s duty to exercise care
for his own safety, the following language is used: “(8) It must also
appear from the evidence that the plaintiff did not in any way
contribute to the happening of the accident in question by any
negligence on his part; that is, by his own want of ordinary care. The
plaintiff, on his part, was under obligation to use ordinary care to
prevent injury when passing over any sidewalk; and if he failed so to
do, and his failure in any way contributed to the happening of the
accident in question, then he cannot recover herein. The evidence shows
without dispute that he was blind, and this fact should be considered by
you in determining what ordinary care on his part would require when he
was attempting to pass over one of the sidewalks of this city.” Counsel
for appellant do not deny that the rules here laid down would be a
correct statement of the law of negligence and contributory negligence
as applied to the ordinary case of sidewalk accident, but it is urged
that the conceded fact of plaintiff’s blindness made it the duty of the
court to say to the jury that a blind person who attempts to use the
public street “must exercise a higher degree of care and caution than a
person ordinarily would be expected or required to use had he full
possession of his sense of sight.” We cannot give this proposition our
assent. It is too well established to require argument or citation of
authority that the care which the city is bound to exercise in the
maintenance of its streets is ordinary and reasonable care, the care
which ordinarily marks the conduct of a person of average prudence and
foresight. So, too, it is equally well settled that the care which a
person using the street is bound to exercise on his own part to discover
danger and avoid accident and injury is of precisely the same character,
the ordinary and reasonable care of a person of average prudence and
foresight. The streets are for the use of the general public without
discrimination; for the weak, the lame, the halt and the blind, as well
as for those possessing perfect health, strength, and vision. The law
casts upon one no greater burden of care than upon the other. It is
true, however, that in determining what is reasonable or ordinary care
we must look to the circumstances and surroundings of each particular
case. As said by us in Graham _v._ Oxford, 105 Iowa, 708: “There is no
fixed rule for determining what is ordinary care applicable to all
cases, but each case must be determined according to its own facts.” In
the case before us the plaintiff’s blindness is simply one of the facts
which the jury must give consideration, in finding whether he did or did
not act with the care which a reasonably prudent man would ordinarily
exercise, when burdened by such infirmity. In other words, the measures
which a traveler upon the street must employ for his own protection
depend upon the nature and extent of the peril to which he knows, or in
the exercise of reasonable prudence ought to know, he is exposed. The
greater and more imminent the risk, the more he is required to look out
for and guard against injury to himself; but the care thus exercised is
neither more nor less than ordinary care—the care which men of ordinary
prudence and experience may reasonably be expected to exercise under
like circumstances. See cases cited in 21 Am. & Eng. Enc. Law, (2d ed.)
465, note 1. In the case at bar the plaintiff was rightfully upon the
street, and if he was injured by reason of the negligence of the city,
and without contributory negligence on his part, he was entitled to a
verdict. In determining whether he did exercise due care it was proper
for the jury, as we have already indicated, to consider his blindness,
and in view of that condition, and all the surrounding facts and
circumstances, find whether he exercised ordinary care and prudence. If
he did, he was not guilty of contributory negligence.

This view of the law seems to be fairly embodied in the instructions to
which exception is taken. If the appellant believed, as it now argues,
that the charge should have been more specific, and dwelt with greater
emphasis upon the fact of plaintiff’s blindness as an element for the
consideration of the jury in finding whether he exercised reasonable
care, it had the right to ask an instruction framed to meet its views in
that respect. No such request was made, and the omission of the court to
so amplify the charge on its own motion was not error.[65]


                   KEITH _v._ WORCESTER STREET R. Co.
       SUPREME JUDICIAL COURT, MASSACHUSETTS, NOVEMBER 26, 1907.
             _Reported in 196 Massachusetts Reports, 478._

Two Actions of Tort for personal injuries received by the plaintiff’s
intestate caused by her falling when stepping across street railway
rails which were piled by the defendant street railway company on the
highway next to the curbing, and were allowed by the street railway
company and the defendant town to remain there, and which, it was
alleged, constituted an obstruction of the highway.[66]

The accident happened in the daytime. The plaintiff’s intestate was
near-sighted, and could not recognize a friend at a distance of more
than ten or twelve feet.

At the trial in the Superior Court, defendants requested the following
instruction:—

“If the plaintiff’s intestate had defective eyesight, she should take
greater care in walking the street than one of good eyesight; and if she
failed to use this greater degree of care, the verdict must be for the
defendant.”

This request was refused, subject to exception.

In the charge to the jury, the presiding judge stated: “The plaintiff
contends and has got to show by a fair preponderance of the evidence
that Mrs. Keith was injured, and that she was injured while she was
using ... a degree of care that a reasonably prudent and careful person,
acting prudently and carefully at the time, would have exercised and
should have exercised in your judgment under all the circumstances then
surrounding Mrs. Keith. That means not only external circumstances, that
means not only the way in which the rails were placed, the location of
the car, the necessity of action on her part, but it means also with
reference to her personal peculiarities as they were shown to exist upon
the stand. For instance, the conduct of a perfectly sound and healthy
person may be properly regarded as one thing, when the same conduct on
the part of a diseased or infirm person might be regarded as something
very different.

“What might be in your judgment perfectly reasonable and proper and
careful on the part of a sound person might be regarded fairly by you as
improper and careless on the part of an infirm person.

“So, in this case, while I cannot instruct you as a matter of law that
Mrs. Keith, if you find her to be near-sighted, was bound to use a
higher degree of care than a person not near-sighted, I have got to
leave it to you as a matter of fact whether a near-sighted person would
not, in order to be careful, have to exercise a higher degree of care
than a person not near-sighted. In other words, I have got to leave it
to you to determine whether or not a near-sighted person is using due
care if he or she under the particular circumstances acts exactly as a
person who was not near-sighted would have done. In other words, it is a
matter of fact for you to determine whether Mrs. Keith was called on to
do differently from a person in full possession of eyesight rather than
as a matter of law for me to direct you in regard to it.”

The jury found for the plaintiff in both cases.

RUGG, J.... The defendant asked the court to rule that if the person
injured “had defective eyesight, she should take greater care in walking
the street than one of good sight, and if she failed to use this greater
degree of care the verdict must be for the defendant.” This request
properly was refused, for the reason that it directed a verdict upon a
single phase of the testimony, which was not necessarily decisive. In
this respect the prayer differs vitally from the one which in Winn _v._
Lowell, 1 Allen, 177, this court held should have been given.[67] We see
no reason for modifying the decision in Winn _v._ Lowell, nor is it
inconsistent with subsequent cases. The standard of care established by
the law is what the ordinarily prudent and cautious person would do to
protect himself under given conditions. There is no higher or different
standard for one who is aged, feeble, blind, halt, deaf or otherwise
impaired in capacity, than for one in perfect physical condition. It has
frequently, in recent as well as earlier cases, been said, in referring
to one under some impediment, that greater caution or increased
circumspection may be required in view of these adverse conditions. See,
for example, Winn _v._ Lowell, 1 Allen, 177; Hall _v._ West End Street
Railway, 168 Mass. 461; Hilborn _v._ Boston & Northern Street Railway,
191 Mass. 14; Vecchioni _v._ New York Central & Hudson River Railroad,
191 Mass. 9; Hawes _v._ Boston Elevated Railway, 192 Mass. 324; Hamilton
_v._ Boston & Northern Street Railway, 193 Mass. 324. These expressions
mean nothing more than that a person so afflicted must put forth a
greater degree of effort than one not acting under any disabilities, in
order to attain that standard of care which the law has established for
everybody. When looked at from one standpoint, it is incorrect to say
that a blind person must exercise a higher degree of care than one whose
sight is perfect, but in another aspect, a blind person may be obliged
to take precautions, practice vigilance and sharpen other senses,
unnecessary for one of clear vision, in order to attain that degree of
care which the law requires. It may depend in some slight degree upon
how the description of duty begins, where the emphasis may fall at a
given moment, but when the whole proposition is stated, the rights of
the parties are as fully protected in the one way as in the other. It is
perhaps more logical to say that the plaintiff is bound to use ordinary
care, and that in passing upon what ordinary care demands, due
consideration should be given to blindness or other infirmities. This
was the course pursued by the Superior Court. Neff _v._ Wellesley, 148
Mass. 487. Smith _v._ Wildes, 143 Mass. 556. But it is also correct to
say that in the exercise of common prudence one of defective eyesight
must usually as matter of general knowledge take more care and employ
keener watchfulness in walking upon the streets and avoiding
obstructions than the same person with good eyesight, in order to reach
the standard established by the law for all persons alike, whether they
be weak or strong, sound or deficient.

                                             _Exceptions overruled._[68]


                           MEREDITH _v._ REED
                SUPREME COURT, INDIANA, MAY TERM, 1866.
                 _Reported in 26 Indiana Reports, 334._

GREGORY, C. J. Meredith sued Reed before a justice for an injury done by
a stallion of the latter to the mare of the former, resulting in the
death of the mare. Jury trial, verdict for the defendant; motion for a
new trial overruled and judgment. The evidence is in the record. The
facts are substantially as follows: In May, 1865, the defendant owned a
stallion, which had previously been let to mares, but owing to the
sickness of the owner, was not so let during the spring of 1865. He was
a gentle stallion, and had never been known by the owner to be guilty of
any vicious acts. Not being in use, he had been kept up in a stable for
four or five months. He was secured in the stable by a strong halter and
chain fastened through an iron ring in the manger. The stable door was
securely fastened on the inside by a strong iron hasp, passed over a
staple, and a piece of chain passed two or three times through the
staple over the hasp, and the ends firmly tied together with a strong
cord. It was also fastened on the outside by a piece of timber, one end
of which was planted in the ground, while the other rested against the
door. The horse was thus secured on the day and night the injury
occurred. The gate of the enclosure surrounding the stable was shut and
fastened as usual. About 11 o’clock that night the horse was found loose
on the highway, and did the injury complained of. Early the following
morning the outside gate was found open; the stable door was found open,
with the log prop lying some distance to one side, and the chain which
had been passed through the staple was gone, and the cord with which it
had been tied was found cut and the pieces lying on the floor.

There are forty-two alleged errors assigned, but many of them are not,
in our opinion, so presented as to entitle them to consideration in this
Court. So far as the substantial rights of the appellant are involved,
all the questions properly presented resolve themselves into the inquiry
as to the nature and extent of the liability of the owner of a domestic
animal for injuries done by it to the personal property of another,
disconnected from any trespass to real estate.

It is contended, on the one hand, that ordinary care was all the law
required of the defendant in this case. On the other it is claimed that
the utmost care was necessary to free him from liability. Ordinary care
is all that the law required in the case in judgment. What is ordinary
care in some cases would be carelessness in others. The law regards the
circumstances surrounding each case, and the nature of the animal or
machinery under control. Greater care is required to be taken of a
stallion than of a mare; so in the management of a steam-engine, greater
care is necessary than in the use of a plow. Yet it is all ordinary
care; such care as a prudent, careful man would take under like
circumstances. The degree of care is always in proportion to the danger
to be apprehended. The case at bar was properly sent to the jury, and
the verdict is fully sustained by the evidence.

                                 _The judgment is affirmed, with costs._


                  DENVER ELECTRIC COMPANY _v._ SIMPSON
               SUPREME COURT, COLORADO, APRIL TERM, 1895.
                _Reported in 21 Colorado Reports, 371._

Action for damage caused to plaintiff, while passing along a public
alley, by his coming in contact with one of defendants’ wires heavily
charged with electricity, which had become detached from its overhead
fastening, and was hanging down to within about two feet of the ground.
At the trial there was some evidence tending to show that the position
of the wire was due to the negligence of the defendants. Verdict for
plaintiff, and judgment thereon. Defendant appealed; alleging as one
ground the giving of certain instructions as to the care required by
defendant. Those instructions are stated in the opinion.[69]

CAMPBELL, J.... This court does not recognize any degrees of negligence,
such as slight or gross, and logically it ought not to recognize any
degrees in its antithesis, care.[70] The court instructed the jury in
this case that the defendant was not an insurer of the safety of
plaintiff, but that in constructing its line and maintaining the same in
repair, it was held to the utmost degree of care and diligence; that in
this respect it is bound to the highest degree of care, skill, and
diligence in the construction and maintenance of its lines of wire and
other appurtenances, and in carrying on its business, so as to make the
same safe against accidents so far as such safety can, by the use of
such care and diligence, be secured. If it observed such degree of care,
it was not liable; if it failed therein, it was liable for injuries
caused thereby.

We think the court was unfortunate in attempting to draw any
distinctions in the degrees of care or negligence. It would have been
safer and the better practice to instruct the jury,—which ought
hereafter to be observed,—even in cases like the one before us, that the
defendant was bound to exercise that reasonable care and caution which
would be exercised by a reasonably prudent and cautious person under the
same or similar circumstances. In addition to this, the jury should have
been instructed that the care increases as the danger does, and that
where the business in question is attended with great peril to the
public, the care to be exercised by the person conducting the business
is commensurate with the increased danger. But, in effect, this is what
the court did. Under the facts of the case, the law required of the
defendant conducting, as it did, a business so dangerous to the public,
the highest degree of care which skill and foresight can attain
consistent with the practical conduct of its business under the known
methods and the present state of the particular art. This is the measure
of the duty owed by a common carrier to a passenger for hire. Thompson’s
Carriers of Passengers, p. 208, and cases cited. Not for the same
reason, or because the doctrine rests upon the same principle, but with
even greater force should this rule apply to a person or corporation
engaged in the equally, if not more, dangerous business of distributing
electricity throughout a city by means of wires strung over the public
alleys and streets, in so far as concerned its duty to the travelling
public.

In those courts where degrees of negligence are not countenanced,
nevertheless, in cases where the duty of a common carrier of passengers
is laid down, the jury are told that carriers are bound to the utmost
degree of care which human foresight can attain. This is upon the theory
that reasonable or ordinary care in a case of that kind is the highest
care which human ingenuity can practically exercise, and that, as a
matter of law, courts will hold every reasonably prudent and careful man
to the exercise of the utmost care and diligence in protecting the
public from the dangers necessarily incident to the carrying on of a
hazardous business.

Where the facts of a case naturally lead equally intelligent persons
honestly to entertain different views as to the degree of care resting
upon a defendant, the court ought not to lay down a rule prescribing any
particular or specific degree in that case. But where all minds
concur—as they must in a case like the one we are now considering—in
regarding the carrying on of a business as fraught with peril to the
public inherent in the nature of the business itself, the court makes no
mistake in defining the duty of those conducting it as the exercise of
the utmost care. It was, therefore, not prejudicial error for the court
to tell the jury in this case what the law requires of the defendant,
viz., the highest degree of care in conducting its business.

                  *       *       *       *       *

                                                _Judgment affirmed._[71]


                  LAKE ERIE & WESTERN R. CO. _v._ FORD
               SUPREME COURT, INDIANA, OCTOBER 23, 1906.
                _Reported in 167 Indiana Reports, 205._

GILLETT, J. Complaint by appellee to recover damages for loss of
property by fire, by reason of the alleged negligence of appellant.
There was a verdict and judgment in favor of appellee.[72]

                  *       *       *       *       *

Appellant complains of appellee’s instructions five and six, which were
given by the court in the order indicated by their numbers. They are as
follows: “(5) It is the duty of a railroad to use all reasonable
precaution in running and operating its trains, and in providing its
engines with proper spark-arresters, so as to prevent injury to the
property of others by sparks or fire emitted or thrown therefrom. (6) If
you believe from all of the evidence and circumstances in the case that
at the time and prior to the destruction of the property of the
plaintiff, as alleged in his complaint, there were a number of wooden
buildings and structures standing on either side of the defendant’s
track and in close proximity thereto, including the barn or stable of
said Melissa McFall in the town of Hobbs, and at such time it was, and
for some time prior thereto it had been, unusually dry, thereby
rendering such wood buildings and structures, including the barn or
stable of said Melissa McFall, and also the property of the plaintiff
herein, unusually dry, inflammable, and easily set on fire by sparks and
coals of fire emitted from defendant’s engines in passing through said
town, and that there was also at the time, and for several hours prior
thereto had been, a strong wind blowing continuously across the
defendant’s track, in the direction of the barn or stable of said
Melissa McFall, and the wooden buildings and structures near the
defendant’s track, including the property of the plaintiff herein, which
greatly and unusually increased the danger and risk of setting fire to
such buildings by sparks and coals of fire emitted or thrown from its
engine in passing through said town, over ordinary times and conditions,
and all of which facts and conditions the defendant knew at the time,
the defendant, under such circumstances, would be required to use a
greater degree of care in operating and running its engines through said
town to prevent injury to such buildings or property by sparks or coals
of fire emitted or thrown from its engine, than it would at ordinary
times and under ordinary conditions.”

Assuming, without deciding, that it was not error for the court, in its
fifth instruction, to use the term “reasonable precaution,” instead of
the preferable one, “ordinary care,”[73] and assuming further, since the
care that the company was required to exercise was, so far as the
element of law was concerned, to be measured by a fixed standard, which
was to be fully complied with (Wharton, Negligence [2d ed.], § 46), that
it was proper to use the expression “all reasonable precaution,” the
question arises whether it is not likely that the jury was misled by the
charge in the next instruction that in the circumstances therein
hypothetically stated “a greater degree of care” was required than in
ordinary conditions. The sixth instruction would have been proper, had
the court charged, after stating to the jury hypothetically the
conditions which existed, leaving it to them to determine whether the
danger was increased, that, in the event they so found, it was their
duty, in determining whether reasonable or ordinary care had been
exercised, to consider the increased danger of fire, yet we cannot say
that this was the fair meaning of the words in which said instruction
was couched.

There has been much discussion in the books concerning the correctness
of the old doctrine as to degrees of negligence. New York Central R. Co.
_v._ Lockwood, (1873) 17 Wall. 357, 21 L. Ed. 627; Steamboat New World
_v._ King, (1853) 16 How. 469, 14 L. Ed. 1019; Ohio, etc., R. Co. _v._
Selby, (1874) 47 Ind. 471, 17 Am. Rep. 719; Pennsylvania Co. _v._
Sinclair, (1878) 62 Ind. 301, 30 Am. Rep. 185; Wharton, Negligence (2d
ed.), § 44; 6 Albany L. J. 313; 2 Ames & Smith, Cases on Torts, 143; 21
Am. and Eng. Ency. Law (2d ed.), 459, and cases cited. While we
apprehend that the adverse opinions which have been expressed concerning
such doctrine were not intended to be understood as militating against
the view that the legal standard of care is not the same in all
relations, or to discountenance the practice of charging the jury in
terms that indicate the extent of care required, as great, ordinary, or
slight (1 Shearman & Redfield, Negligence [5th ed.], § 47), yet the
point which we wish to enforce now is that in all cases negligence
consists simply in a failure to measure up to the legal standard of
care. It was said by Willes, J., in Grill _v._ General Iron Screw, etc.,
Co., (1866) L. R. 1 C. P. 600, 611: “Confusion has arisen from regarding
negligence as a positive instead of a negative word. It is really the
absence of such care as it was the duty of the defendant to use.”

Here we admittedly have a case in which it was the duty of the company
to exercise ordinary care, but what does an instruction mean that
informs the jury that in certain circumstances a greater degree of care
is required, when it has for a background an instruction, which is
applicable to all circumstances, that all reasonable precaution must be
used? We think that in such a case the jury would understand that more
than ordinary care was required, and it is not improbable that the
effect of giving such an instruction, following an instruction like 5,
would be to lead the jury to infer that the defendant’s duty was raised
by the circumstances recited to a pitch of intensity that could not
reasonably have been attained.

It was said by this court in Meredith _v._ Reed, (1866) 26 Ind. 334,
337: “What is ordinary care in some cases, would be carelessness in
others. The law regards the circumstances surrounding each case, and the
nature of the animal or machinery under control. Greater care is
required to be taken of a stallion than of a mare; so in the management
of a steam engine, greater care is necessary than in the use of a
plough. Yet it is all ordinary care.” The legal standard of care
required in a particular relationship is always the same, although the
amount of care thus required depends upon the particular circumstances.
Cleveland, etc., R. Co. _v._ Terry, (1858) 8 Ohio St. 570; Weiser _v._
Broadway, etc., St. R. Co., (1895) 6 Ohio Dec. 215. As has been observed
by a modern writer: “This standard may vary in fact, but not in law.” 2
Jaggard, Torts, p. 819. In an article in 3 [6] Albany, L. J. 314, it is
said: “The ratio, proportion or correspondence of diligence to
circumstances, of care to surroundings, is fixed and identical. And, in
determining a question of diligence or negligence in either case [as
between two cases previously used by way of illustration], it would be
only necessary to apply the same rule to varying circumstances and
persons, to demand the same ratio between varying extremes. And it is
not too much to assert that all the perplexity and misunderstanding on
the subject of diligence and negligence are due to the habit of
confounding the specific acts and circumstances, which must always vary,
with the ratio or relation between them, which remains always the same.”

In 13 Am. and Eng. Ency. Law (2d ed.), 416, it is said: “The very
statement of the general rule that reasonable care is required to
prevent injuries to others from fire, implies that what is reasonable
care must depend upon the circumstances of each particular case. It is,
however, inaccurate to say, as many of the cases do, that the degree of
care varies with the particular circumstances. It is only reasonable
care that is required in any case; but the greater the danger, or the
more likely the communication of fire and the ignition of the property
of others, the more precautions and the closer vigilance reasonable care
requires.” As above suggested, cases can be found in which it is stated
that the degree of care to be used depends upon the danger, but, as has
been observed by this court, it is not every statement of the law as
found in an opinion or text-book, however well and accurately put, which
can properly be embodied in an instruction. Garfield _v._ State, (1881)
74 Ind. 60. The viciousness of the instruction in question lies in its
tendency to lead the jury to infer that the legal standard of ordinary
care was raised by the circumstances recited, thus making possible the
inference that a great but undefined extent of care was required,
whereas all that the law exacted was the ordinary care which the
situation demanded, or such care as it is to be assumed that an
ordinarily prudent man would exercise in the circumstances, were the
risk his own.[74]

In this case the acts and omissions which the complaint charged as
negligent were various, so that the question of what was ordinary care
arose in a number of ways, and we can only conclude, in view of the
misleading character of the instruction under consideration, that
prejudicial error has intervened.

                       _Judgment reversed, and a new trial ordered._[75]


                            TRACY _v._ WOOD
 UNITED STATES CIRCUIT COURT, DISTRICT OF RHODE ISLAND, NOVEMBER TERM,
                                 1822.
           _Reported in 3 Mason (U. S. Circuit Court), 132._

Assumpsit for negligence in losing 764½ doubloons, intrusted to the
defendant to be carried from New York to Boston, as a gratuitous bailee.
The gold was put up in two distinct bags, one within the other, and at
the trial, upon the general issue, it appeared that the defendant, who
was a money broker, brought them on board of the steamboat bound from
New York to Providence; that in the morning while the steamboat lay at
New York, and a short time before sailing, one of the bags was
discovered to be lost, and that the other bag was left by the defendant
on a table in his valise in the cabin, for a few moments only, while he
went on deck to send information of the supposed loss to the plaintiffs,
there being then a large number of passengers on board, and the loss
being publicly known among them. On the defendant’s return the second
bag was also missing and after every search no trace of the manner of
the loss could be ascertained. The valise containing both bags was
brought on board by the defendant on the preceding evening, and put by
him in a berth in the forward cabin. He left it there all night, having
gone in the evening to the theatre, and on his return having slept in
the middle cabin. The defendant had his own money to a considerable
amount in the same valise. There was evidence to show that he made
inquiries on board, if the valise would be safe, and that he was
informed, that if it contained articles of value, it had better be put
into the custody of the captain’s clerk in the bar, under lock and key.
There were many other circumstances in the case. The argument at the
trial turned wholly on the question of gross negligence, and all the
facts were fully commented on by counsel. But as the case is intended
only to present the discussion on the question of law, it is not thought
necessary to recapitulate them.[76]

STORY, J., after summing up the facts, said, I agree to the law as laid
down at the bar, that in cases of bailees without reward, they are
liable only for gross negligence. Such are depositaries, or persons
receiving deposits without reward for their care; and mandataries, or
persons receiving goods to carry from one place to another without
reward. The latter is the predicament of the defendant. He undertook to
carry the gold in question for the plaintiff, gratuitously, from New
York to Providence, and he is not responsible unless he has been guilty
of gross negligence. Nothing in this case arises out of the personal
character of the defendant, as broker. He is not shown to be either more
or less negligent than brokers generally are; nor if he was, is that
fact brought home to the knowledge of the plaintiffs. They confided the
money to him as a broker of ordinary diligence and care, having no other
knowledge of him; and, therefore, no question arises as to what would
have been the case, if the plaintiffs had known him to be a very
careless or a very attentive man. Jones’ Bail. 46. The language of the
books, as to what constitutes gross negligence, or not, is sometimes
loose and inaccurate from the general manner in which propositions are
stated. When it is said, that gross negligence is equivalent to fraud,
it is not meant that it cannot exist without fraud. There may be very
gross negligence in cases where there is no pretence that the party has
been guilty of fraud, though certainly such negligence is often
presumptive of fraud. In determining what is gross negligence, we must
take into consideration what is the nature of the thing bailed. If it be
of little value, less care is required than if it be of great value. If
a bag of apples were left in a street for a short time, without a person
to guard it, it would certainly not be more than ordinary neglect. But
if the bag were of jewels or gold, such conduct would be gross
negligence. In short, care and diligence are to be proportional to the
value of the goods, the temptation and facility of stealing them, and
the danger of losing them. So Sir William Jones lays down the law.
“Diamonds, gold, and precious trinkets,” says he, “ought from their
nature to be kept with peculiar care, under lock and key; it would,
therefore, be gross negligence in a depositary to leave such deposit in
an open antechamber; and _ordinary_ neglect, at least, to let them
remain on the table, where they might possibly tempt his servants.”
Jones’ Bail. 38, 46, 62. So in Smith _v._ Horne, 2 Moore’s R. 18, it was
held to be gross negligence in the case of a carrier, under the usual
notice of not being responsible for goods above £5 in value, to send
goods in a cart with one man, when two were usually sent to see to the
delivery of them. So in Booth _v._ Wilson, 1 Barn. & Ald. 59, it was
held gross negligence in a gratuitous bailee to put a horse into a
dangerous pasture. In Batson _v._ Donovan, 4 Barn. & Ald. 21, the
general doctrine was admitted in the fullest terms. It appears to me
that the true way of considering cases of this nature is, to consider
whether the party has omitted that care which bailees, without hire, or
mandataries of ordinary prudence usually take of property of this
nature. If he has, then it constitutes a case of gross negligence. The
question is not whether he has omitted that care, which very prudent
persons usually take of their own property, for the omission of that
would be but slight negligence; nor whether he has omitted that care
which prudent persons ordinarily take of their own property, for that
would be but ordinary negligence: but whether there be a want of that
care, which men of common sense, however inattentive, usually take, or
ought to be presumed to take of their property, for that is gross
negligence. The contract of bailees without reward is not merely for
good faith, but for such care as persons of common prudence in their
situation usually bestow upon such property. If they omit such care, it
is gross negligence.

The present is a case of a mandatary of money. Such property is by all
persons, negligent as well as prudent, guarded with much greater care
than common property. The defendant is a broker, accustomed to the use
and transportation of money, and it must be presumed he is a person of
ordinary diligence. He kept his own money in the same valise; and took
no better care of it than of the plaintiff’s. Still if the jury are of
opinion that he omitted to take that reasonable care of the gold which
bailees without reward in his situation usually take, or which he
himself usually took of such property, under such circumstances, he has
been guilty of gross negligence.

_Verdict for the plaintiffs for $5700, the amount of one bag of the
gold; for the defendant as to the other bag._[77]


                  DOLPHIN _v._ WORCESTER STREET R. CO.
        SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 18, 1905.
             _Reported in 189 Massachusetts Reports, 270._

Action of tort under Revised Laws, chapter 111, section 267, for the
death of a passenger on a street railway.[78]

The material portions of the statute are as follows:—

“If a corporation which operates a railroad or a street railway, by
reason of its negligence or by reason of the unfitness or gross
negligence of its agents or servants, while engaged in its business,[79]
causes the death of a passenger, or of a person who is in the exercise
of due care and who is not a passenger or in the employ of such
corporation, it shall be punished by a fine of not less than five
hundred nor more than five thousand dollars, which shall be recovered by
an indictment,” and shall be paid to the executor or administrator, to
the use of the widow and children or the next of kin. “Such corporation
shall also be liable in damages in the sum of not less than five hundred
nor more than five thousand dollars, which shall be assessed with
reference to the degree of culpability of the corporation or of its
servants or agents, and shall be recovered in an action of tort ... by
the executor or administrator of the deceased for the use of the persons
hereinbefore specified in the case of an indictment.... But no executor
or administrator shall, for the same cause, avail himself of more than
one of the remedies given by the provisions of this section.”

At the trial the plaintiff requested the following rulings:—

“6. When the duty of exercising the highest degree of care is incumbent
upon the defendant, any failure upon the part of its servants to
exercise that degree of care is gross negligence.

“7. The term ‘gross’ in the allegation gross negligence, when used with
reference to the degree of care required and not fulfilled, is merely an
expletive, when the degree of care required is the very highest.

“8. There are no degrees of negligence.”

The plaintiff excepted to the refusal of the judge to give the rulings
requested, and to such parts of the charge as were in conflict with
them. The defendant had a verdict, and the case is here on these
exceptions.

LORING, J.... The judge was right in refusing to give the sixth ruling
asked for. A failure to exercise the highest degree of care is slight
negligence.

3. The seventh ruling requested was wrong. The term “gross negligence”
in a case where the degree of care due is the highest degree of care
means that there has been a gross failure to exercise that degree of
care.[80]

4. There are degrees of care in cases under R. L. c. 111, § 267, by
force of that act.[81]

                                                 _Exceptions overruled._


                CLEVELAND ROLLING MILL CO. _v._ CORRIGAN
                SUPREME COURT, OHIO, FEBRUARY 26, 1889.
               _Reported in 46 Ohio State Reports, 283._

Error to Circuit Court of Cuyahoga County.

The plaintiff below, John Corrigan, an infant under the age of fourteen,
by his guardian, sued the Rolling Mill Company for damages suffered
while in the defendants’ employ, and which he alleged were caused by
their negligence.

The answer of the defendants alleged, among other defences, that the
injury occurred solely through the plaintiff’s fault.

As to this ground of defence, the Court instructed the jury in part as
follows:—

It was the duty of the plaintiff to use ordinary care and prudence; just
such care and prudence as a boy of his age, of ordinary care and
prudence, would use under like or similar circumstances. You should take
into consideration his age, the judgment and knowledge he possessed.

                                   _Verdict and judgment for plaintiff._

The Company filed its petition in error.[82]

WILLIAMS, J. The only questions presented in this case are those arising
upon the special instructions given by the Court in response to the
request of the jury. These instructions, the plaintiff in error
contends, are erroneous in their entirety and in detail.

1. First, it is claimed that the Court erred in the statement of the
plaintiff’s duty, in the opening proposition of the charge, wherein the
jury were instructed that “it was the duty of the plaintiff to use
ordinary care,” which the Court defined to be “just such care as boys of
that age, of ordinary care and prudence, would use under like
circumstances,” and that the jury “should take into consideration the
age of the plaintiff, and the judgment and knowledge he possessed.” We
have found no decision of this Court upon the subject of the
contributory negligence of infants, or the measure of care required of
them. Elsewhere the decisions are conflicting. Each of three different
rules on the subject has found judicial sanction. One rule requires of
children the same standard of care, judgment, and discretion, in
anticipating and avoiding injury, as adults are bound to exercise.[83]
Another wholly exempts small children from the doctrine of contributory
negligence. Between these extremes a third and more reasonable rule has
grown into favor, and is now supported by the great weight of authority,
which is, that a child is held to no greater care than is usually
possessed by children of the same age. Authors and judges, however, do
not always employ the same language in giving expression to the rule. In
Beach on Contributory Negligence, sec. 46, it is thus expressed: “An
infant plaintiff who, on the one hand, is not so young as to escape
entirely all legal accountability, and on the other hand is not so
mature as to be held to the responsibility of an adult is, of course, in
cases involving the question of negligence, to be held responsible for
ordinary care, and ordinary care must mean, in this connection, that
degree of care and prudence which may reasonably be expected of a
child.” The decisions enforcing this rule, that children are to be held
responsible only for such degree of care and prudence as may reasonably
be expected of them, taking due account of their age and the particular
circumstances, are very numerous. “It is well settled,” says Mr. Justice
Hunt in Railroad Company _v._ Stout, 17 Wall. 657, “that the conduct of
an infant of tender years is not to be judged by the same rule which
governs that of an adult.... The care and caution required of a child is
according to his maturity and capacity only, and this is to be
determined in each case by the circumstances of that case.” In Shearman
& Redfield on Negligence, sec. 73, it is said to be “now settled by the
overwhelming weight of authority that a child is held, as far as he is
personally concerned, only to the exercise of such care and discretion
as is reasonably to be expected from children of his own age.” Another
author says, “A child is only bound to exercise such a degree of care as
children of his particular age may be presumed capable of exercising.”
Whittaker’s Smith on Neg., 411.

This rule appears to rest upon sound reason as well as authority. To
constitute contributory negligence in any case there must be a want of
ordinary care and a proximate connection between such want of care and
the injury complained of; and ordinary care is that degree of care which
persons of ordinary care and prudence are accustomed to use under
similar circumstances. Children constitute a class of persons of less
discretion and judgment than adults, of which all reasonably informed
men are aware. Hence ordinarily prudent men reasonably expect that
children will exercise only the care and prudence of children, and no
greater degree of care should be required of them than is usual under
the circumstances among careful and prudent persons of the class to
which they belong. We think it a sound rule, therefore, that in the
application of the doctrine of contributory negligence to children, in
actions by them or in their behalf for injuries occasioned by the
negligence of others, their conduct should not be judged by the same
rule which governs that of adults, and while it is their duty to
exercise ordinary care to avoid the injuries of which they complain,
ordinary care for them is that degree of care which children of the same
age, of ordinary care and prudence, are accustomed to exercise under
similar circumstances.

That portion of the charge of the Court under discussion is in
substantial conformity to this conclusion. The care and prudence which a
boy of the plaintiff’s age of ordinary care and prudence “would use
under like and similar circumstances,” as expressed in the charge, is
such care as “is reasonably to be expected from a boy of his age,” or
“which boys of his age usually exercise,” as the books express it. No
different effect is given to the charge of which the plaintiff in error
can complain, by the direction to the jury to take into consideration
the age of the boy “and the judgment and knowledge he possessed.” This
did not diminish the degree of care required by the previous portion of
the instruction.

                                                _Judgment affirmed._[84]


                       STONE _v._ DRY DOCK R. CO.
               COURT OF APPEALS, NEW YORK, JUNE 4, 1889.
                _Reported in 115 New York Reports, 104._

Appeal from judgment of the General Term of the Supreme Court in the
first judicial department, entered upon an order made October 26, 1887,
which affirmed a judgment in favor of defendant, entered upon an order
nonsuiting plaintiff on trial.

This was an action to recover damages for the alleged negligence in
causing the death of plaintiff’s intestate, a child of seven years and
three or four months old.

The facts, so far as material, are stated in the opinion.[85]

ANDREWS, J. The nonsuit was placed on the ground that an infant seven
years of age was _sui juris_, and that the act of the child in crossing
the street in front of the approaching car was negligence on her part,
which contributed to her death, and barred a recovery. We think the case
should have been submitted to the jury.

The negligence of the driver of the car is conceded. His conduct in
driving rapidly along Canal Street at its intersection with Orchard
Street, without looking ahead, but with his eyes turned to the inside of
the car, was grossly negligent. Mangam _v._ Brooklyn R. R. Co., 38 N. Y.
455; Railroad Co. _v._ Gladmon, 15 Wall. 401. It cannot be asserted as a
proposition of law that a child just passed seven years of age is _sui
juris_, so as to be chargeable with negligence. The law does not define
when a child becomes _sui juris_. Kunz _v._ City of Troy, 104 N. Y. 344.
Infants under seven years of age are deemed incapable of committing
crime, and by the common law such incapacity presumptively continues
until the age of fourteen. An infant between those ages was regarded as
within the age of possible discretion, but on a criminal charge against
an infant between those years the burden was upon the prosecutor to show
that the defendant had intelligence and maturity of judgment sufficient
to render him capable of harboring a criminal intent. 1 Arch. 11. The
Penal Code preserves the rule of the common law except that it fixes the
age of twelve instead of fourteen as the time when the presumption of
incapacity ceases. Penal Code, §§ 18, 19.

In administering civil remedies the law does not fix any arbitrary
period when an infant is deemed capable of exercising judgment and
discretion. It has been said in one case that an infant three or four
years of age could not be regarded as _sui juris_, and the same was said
in another case of an infant five years of age. Mangam _v._ Brooklyn R.
R., _supra_; Fallon _v._ Central Park, N. & E. R. R. R. Co., 64 N. Y.
13. On the other hand, it was said in Cosgrove _v._ Ogden, 49 N. Y. 255,
that a lad six years of age could not be assumed to be incapable of
protecting himself from danger in streets or roads, and in another case
that a boy of eleven years of age was competent to be trusted in the
streets of a city. McMahon _v._ Mayor, &c., 33 N. Y. 642. From the
nature of the case it is impossible to prescribe a fixed period when a
child becomes _sui juris_. Some children reach the point earlier than
others. It depends upon many things, such as natural capacity, physical
conditions, training, habits of life, and surroundings. These and other
circumstances may enter into the question. It becomes, therefore, a
question of fact for the jury where the inquiry is material unless the
child is of so very tender years that the Court can safely decide the
fact. The trial Court misapprehended the case of Wendell _v._ New York
Central Railroad Company, 91 N. Y. 420, in supposing that it decided, as
a proposition of law, that a child of seven years was capable of
exercising judgment so as to be chargeable with contributory negligence.
It was assumed in that case, both on the trial and on appeal, that the
child whose conduct was in question was capable of understanding, and
did understand the peril of the situation, and the evidence placed it
beyond doubt that he recklessly encountered the danger which resulted in
his death. The boy was familiar with the crossing, and, eluding the
flagman who tried to bar his way, attempted to run across the track in
front of an approaching train in plain sight, and unfortunately slipped
and fell, and was run over and killed. It appeared that he was a bright,
active boy, accustomed to go to school and on errands alone, and
sometimes was intrusted with the duty of driving a horse and wagon, and
that on previous occasions he had been stopped by the flagman while
attempting to cross the track in front of an approaching train, and had
been warned of the danger. The Court held, upon this state of facts,
that the boy was guilty of culpable negligence. But the case does not
decide, as matter of law, that all children of the age of seven years
are _sui juris_.

We are inclined to the opinion that in an action for an injury to a
child of tender years, based on negligence, who may or may not have been
_sui juris_ when the injury happened, and the fact is material as
bearing upon the question of contributory negligence, the burden is upon
the plaintiff to give some evidence that the party injured was not
capable, as matter of fact, of exercising judgment and discretion. This
rule would seem to be consistent with the principle now well settled in
this State, that in an action for a personal injury, based on
negligence, freedom from contributory negligence on the part of the
party injured is an element of the cause of action. In the present case
the only fact before the jury bearing upon the capacity of the child
whose death was in question was that she was a girl seven years and
three months old. This, we think, did not alone justify an inference
that the child was incapable of exercising any degree of care. But,
assuming that the child was chargeable with the exercise of some degree
of care, we think it should have been left to the jury to determine
whether she acted with that degree of prudence which might reasonably be
expected, under the circumstances, of a child of her years. This measure
of care is all that the law exacts in such a case. Thurber _v._ Harlem,
B. M. & F. R. R. Co., 60 N. Y. 335.[86]

                                                    _Judgment reversed._


               ILLINOIS IRON AND METAL COMPANY _v._ WEBER
                SUPREME COURT, ILLINOIS, APRIL 16, 1902.
                _Reported in 196 Illinois Reports, 526._

Appeal by original defendants from the decision of the Appellate Court
for the First District; 89 Ill. App. 368.

Plaintiff was a newsboy, between eleven and twelve years old, and his
stand was at Dearborn and Monroe streets in the city of Chicago. He was
going from his home, about four miles distant, to his place of business.
By permission of the driver, he got on a wagon loaded with brick. He
stood up on the rear of the wagon behind the box, and held on to the
hind end-gate of the wagon. The wagon was one of a procession of loaded
teams in a street-car track. The next wagon behind was owned by
defendant. The end of the pole of defendant’s wagon struck the
plaintiff’s leg, inflicting a serious wound. Plaintiff had been in the
paper business since he was nine years old, and had been in the habit of
riding down town on wagons.

Under instructions, the substance of which is stated in the opinion, the
jury found a verdict for plaintiff.[87]

CARTWRIGHT, J.... The first two instructions each directed the jury to
find the defendant guilty, provided they should believe, from the
evidence, the existence of certain facts. One of the essential facts
which the law required to be found was that the plaintiff was in the
exercise of ordinary care for his own safety, and each of those
instructions informed the jury that the fact was proved if he was in the
exercise of ordinary care for a boy of his age. They directed the jury
to return a verdict for the plaintiff if they found he was in the
exercise of ordinary care for a boy of his age and the defendant was
negligent and the injury resulted. That was not a correct rule of law,
since the question of care was not to be determined alone by the
plaintiff’s age, but also from his intelligence, experience, and ability
to understand and comprehend dangers and care for himself. The case was
one in which the defendant was entitled to correct instructions upon
that question. It was a question whether plaintiff was not guilty of
negligence in riding where he did, in a procession of teams, outside of
the box, behind the end-gate of the wagon. The position was a dangerous
one, not provided or used for passengers or intended for such use.
Plaintiff had a right to ride on the wagon with the driver’s consent,
but it was his duty to use reasonable care for his own safety. There was
a string of heavily loaded teams in the car tracks, where it was
difficult, if not impossible, to turn out, and the difficulty and danger
in stopping when one of a procession stops is matter of common
knowledge. Cases cited as to the liability of common carriers of
passengers where a car is full and a passenger rides upon the platform
have no bearing on this question. Passengers are accustomed to be upon
platforms and are sometimes compelled to ride there, and different rules
are applied to a common carrier from those governing parties not in that
relation. There was no necessity whatever for the plaintiff assuming the
position that he did. These facts were not controverted or in dispute,
but are gathered from his own testimony. If the damage to the plaintiff
was caused by his own negligence in assuming such a position, he could
not recover. In determining that question his age was to be taken into
account, but it could not be said, as a matter of law, that he was too
young to exercise any care for his personal safety or that he was
incapable of negligence. Unquestionably, he was capable of exercising
some degree of judgment and discretion and some degree of care for his
own safety. He had lived in the city and had been engaged in business,
and was accustomed to ride on wagons. Judge Thompson, in his
Commentaries on Law of Negligence (vol. I, sect. 309), says: “Two lads
of equal age and natural capacity, one of them raised in the country and
the other in the city, might approach a given danger, and the one would
be perfectly competent to care for himself while the other would be
helpless in the face of it. Therefore, the capacity, the intelligence,
the knowledge, the experience, and the discretion of the child are
always evidentiary circumstances,—circumstances with reference to which
each party has the right to introduce evidence, which evidence is to be
considered by the jury.” The rule established by our own decisions is,
that age is not the only element to be considered, but that
intelligence, capacity, and experience are also to be taken into
account. Weick _v._ Lander, 75 Ill. 93; City of Chicago _v._ Keefe, 114
Id. 222; Illinois Central Railroad Company _v._ Slater, 129 Id. 91.

                  *       *       *       *       *

                                            _Reversed and remanded._[88]


                          BULLOCK _v._ BABCOCK
         SUPREME COURT OF JUDICATURE, NEW YORK, OCTOBER, 1829.
                     _Reported in 3 Wendell, 391._

This was an action of trespass, assault, and battery.

In 1816, the defendant, then being about twelve years of age, shooting
an arrow from a bow, struck the plaintiff and put out one of his eyes,
the plaintiff being then between nine and ten years of age. The
plaintiff and defendant were schoolmates. The boys attending the school
were assembled near the school-house. One of them had a bow and arrow,
with which he and the defendant had been shooting at a mark. Some remark
was made by the plaintiff, when the defendant said, “I will shoot you,”
and took the bow and arrow from another boy who then held it. The
plaintiff ran into the school-house and hid behind a fire-board standing
before the fire-place in the school-room. The defendant followed to the
door of the school-room, and saying, “See me shoot that basket,”
discharged the arrow. At that moment the plaintiff raised his head above
the fire-board, and the arrow struck him. There was a basket standing on
a desk in the direction that the arrow was aimed. When the arrow was
shot, there were a number of boys in the school-room. There had been no
quarrel between the boys. The plaintiff, however, on entering the
school-house was frightened, and said he was afraid he would be shot.
The plaintiff suffered great pain for two months, became blind of one
eye, and for five years was disabled from attending school in
consequence of the weakness of sight of the other eye. His mother became
a widow; and when the plaintiff was able to attend school, her poverty
prevented his receiving an ordinary education. This suit was commenced
in 1827, within a year after the plaintiff attained his age.

The judge charged the jury that the shooting the arrow in the
school-room where there were a number of boys assembled was an unlawful
act; that it appeared to him to have been, at the least, grossly
negligent and unjustifiable; and that, if the jury thought so, they
ought to find a verdict for the plaintiff, with damages. The defendant
excepted. The jury found for the plaintiff, with $180 damages, and a
motion was now made to set aside the verdict.

BY THE COURT, MARCY, J. It is not, I apprehend, necessary for us to say
whether the judge erred or not in his remark to the jury that, under the
circumstances of the case, the act of the defendant in shooting the
arrow in the school-room, where there were a number of scholars, was not
lawful; for, if the act in itself was lawful, and there was not a proper
care to guard against consequences injurious to others, the actor must
be held responsible for such consequences.

In ordinary cases, if the injury is not the effect of an unavoidable
accident, the person by whom it is inflicted is liable to respond in
damages to the sufferer. Where, in shooting at butts, the archer’s arrow
glanced and struck another, it was holden to be a trespass. Year-Book,
21 H. VII. fol. 28. So where a number of persons were lawfully
exercising themselves at arms, one, whose gun accidentally went off, was
held liable in trespass for the injury occasioned by the accident.
Weaver _v._ Ward. Where, in a dark night, the defendant got on the wrong
side of the road, and an injury ensued to the person of the plaintiff,
trespass for the damage was sustained. Leame _v._ Bray, 3 East, 593. It
is decided in the case of Wakeman _v._ Robinson, if the accident happen
entirely without the fault of the defendant, or any blame being
imputable to him, an action will not lie. In that case, the blame
imputable to the defendant was, that, his horse being young and
spirited, he used him without a curb rein; that in his alarm he probably
pulled the wrong rein; and that he ought to have continued on in a
straight course. The blame fairly imputed to the defendant, it will be
perceived, must have been slight indeed, as it certainly was in the case
of the injury done by the glancing of the arrow when shooting at a mark
(a lawful act), and by the accidental discharge of the musket at a
training; and yet, in each of these cases, an action for the injury was
maintained. Unless a rule is to be applied to this case different from
that applicable to a transaction between adults, the proof was most
abundant to charge the defendant with the consequences of the injury.
Infants, in the same manner as adults, are liable for trespass, slander,
assault, &c.[89] Bing. on Infancy, 110; 8 T. R. 335; 16 Mass. Rep. 389;
2 Inst. 328. Where infants are the actors, that might probably be
considered an unavoidable accident which would not be so considered
where the actors are adults; but such a distinction, if it exists, does
not apply to this case. The liability to answer in damages for trespass
does not depend upon the mind or capacity of the actors; for idiots and
lunatics, as we see by the case reported in Hobart, are responsible in
the action of trespass for injuries inflicted by them. 1 Chit. Pl. 66.

                                    _Motion for a new trial denied._[90]


                               SECTION IV
                        PROOF OF NEGLIGENCE[91]


               METROPOLITAN RAILWAY COMPANY _v._ JACKSON
               IN THE HOUSE OF LORDS, DECEMBER 13, 1877.
                   _Reported in 3 Appeal Cases, 193._

THE LORD CHANCELLOR (Lord Cairns):[92]—

My Lords, in this case an action was brought by the respondent against
the Metropolitan Railway Company for negligence in not carrying the
respondent safely as a passenger on the railway, and for injuring his
thumb by the act of one of the appellants’ servants in suddenly and
violently closing the door of the railway carriage.

The question is, Was there at the trial any evidence of this negligence
which ought to have been left to the jury? The Court of Common Pleas,
consisting of Lord Coleridge, Mr. Justice Brett, and Mr. Justice Grove,
were of opinion that there was such evidence. The Court of Appeal was
equally divided; the Lord Chief Justice and Lord Justice of Appeal
Amphlett holding that there was evidence, the Lord Chief Baron and Lord
Justice of Appeal Bramwell holding that there was not.

The facts of the case are very short. The respondent in the evening of
the 18th of July, 1872, took a third-class ticket from Moorgate Street
to Westbourne Park, and got into a third-class compartment; the
compartment was gradually filled up, and when it left King’s Cross all
the seats were occupied. At Gower Street Station three persons got in
and were obliged to stand up. There was no evidence to show that the
attention of the company’s servants was drawn to the fact of an extra
number being in the compartment; but there was evidence that the
respondent remonstrated at their getting in with the persons so getting
in, and a witness who travelled in the same compartment stated that he
did not see a guard or porter at Gower Street.

At Portland Road, the next station, the three extra passengers still
remained standing up in the compartment. The door of the compartment was
opened and then shut; but there was no evidence to show by whom either
act was done. Just as the train was starting from Portland Road there
was a rush, and the door of the compartment was opened a second time by
persons trying to get in. The respondent, who had up to this time kept
his seat, partly rose and held up his hand to prevent any more
passengers coming in. After the train had moved, a porter pushed away
the people who were trying to get in, and slammed the door to, just as
the train was entering the tunnel. At that very moment the respondent,
by the motion of the train, fell forward and put his hand upon one of
the hinges of the carriage door to save himself, and at that moment, by
the door being slammed to, the respondent’s thumb was caught and
injured.

The case as to negligence having been left to the jury, the jury found a
verdict for the respondent with £50 damages. There was not, at your
lordships’ bar, any serious controversy as to the principles applicable
to a case of this description. The judge has a certain duty to
discharge, and the jurors have another and a different duty. The judge
has to say whether any facts have been established by evidence from
which negligence _may be_ reasonably inferred; the jurors have to say
whether, from those facts, when submitted to them, negligence _ought to
be_ inferred. It is, in my opinion, of the greatest importance in the
administration of justice that these separate functions should be
maintained, and should be maintained distinct. It would be a serious
inroad on the province of the jury, if, in a case where there are facts
from which negligence may reasonably be inferred, the judge were to
withdraw the case from the jury upon the ground that, in his opinion,
negligence ought not to be inferred; and it would, on the other hand,
place in the hands of the jurors a power which might be exercised in the
most arbitrary manner, if they were at liberty to hold that negligence
might be inferred from any state of facts whatever. To take the instance
of actions against railway companies: a company might be unpopular,
unpunctual, and irregular in its service; badly equipped as to its
staff; unaccommodating to the public; notorious, perhaps for accidents
occurring on the line; and when an action was brought for the
consequences of an accident, jurors, if left to themselves, might, upon
evidence of general carelessness, find a verdict against the company in
a case where the company was really blameless. It may be said that this
would be set right by an application to the court in banc, on the ground
that the verdict was against evidence; but it is to be observed that
such an application, even if successful, would only result in a new
trial; and on a second trial, and even on subsequent trials, the same
thing might happen again.

In the present case I am bound to say that I do not find any evidence
from which, in my opinion, negligence could reasonably be inferred. The
negligence must in some way connect itself, or be connected by evidence,
with the accident. It must be, if I might invent an expression founded
upon a phrase in the civil law, _incuria dans locum injuriae_. In the
present case there was no doubt negligence in the company’s servants, in
allowing more passengers than the proper number to get in at the Gower
Street Station; and it may also have been negligence if they saw these
supernumerary passengers, or if they ought to have seen them, at
Portland Road, not to have then removed them; but there is nothing, in
my opinion, in this negligence which connects itself with the accident
that took place. If, when the train was leaving Portland Road, the
overcrowding had any effect on the movements of the respondent; if it
had any effect on the particular portion of the carriage where he was
sitting, if it made him less a master of his actions when he stood up or
when he fell forward, this ought to have been made matter of evidence;
but no evidence of the kind was given.

As regards what took place at Portland Road, I am equally unable to see
any evidence of negligence connected with the accident, or indeed of any
negligence whatever. The officials cannot, in my opinion, be held bound
to prevent intending passengers on the platform opening a carriage door
with a view of looking or getting into the carriage. They are bound to
have a staff which would be able to prevent such persons getting in
where the carriage was already full, and this staff they had, for the
case finds that the porter pushed away the persons who were attempting
to get in. So also with regard to shutting the door; these persons had
opened the door, and thereupon it was not only proper but necessary that
the door should be shut by the porter; and, as the train was on the
point of passing into a tunnel, he could not shut it otherwise than
quickly or in this sense violently....

LORD BLACKBURN:—

My Lords, I also am of opinion that in this case the judgment should be
reversed, and a nonsuit entered. On a trial by jury it is, I conceive,
undoubted that the facts are for the jury, and the law for the judge. It
is not, however, in many cases practicable completely to sever the law
from the facts.

But I think it has always been considered a question of law to be
determined by the judge, subject, of course, to review whether there is
evidence which, if it is believed, and the counter-evidence, if any, not
believed, would establish the facts in controversy. It is for the jury
to say whether and how far the evidence is to be believed. And if the
facts, as to which evidence is given, are such that from them a farther
inference of fact may legitimately be drawn, it is for the jury to say
whether that inference is to be drawn or not. But it is for the judge to
determine, subject to review, as a matter of law whether from those
facts that farther inference may legitimately be drawn.

My Lords, in delivering the considered judgment of the Exchequer Chamber
in Ryder _v._ Wombwell, Law Rep. 4 Ex. 32, 38, Willes, J., says: “Such a
question is one of mixed law and fact; in so far as it is a question of
fact, it must be determined by a jury, subject no doubt to the control
of the court, who may set aside the verdict, and submit the question to
the decision of another jury; but there is in every case a preliminary
question, which is one of law, viz., whether there is any evidence on
which the jury could properly find the verdict for the party on whom the
_onus_ of proof lies. If there is not, the judge ought to withdraw the
question from the jury, and direct a nonsuit if the _onus_ is on the
plaintiff, or direct a verdict for the plaintiff if the _onus_ is on the
defendant. It was formerly considered necessary in all cases to leave
the question to the jury, if there was any evidence, even a scintilla,
in support of the case; but it is now settled that the question for the
judge (subject, of course, to review), is, as is stated by Maule, J., in
Jewell _v._ Parr, 13 C. B. 909, 916, ‘not whether there is literally no
evidence, but whether there is none that ought reasonably to satisfy the
jury that the fact sought to be proved is established.’”

He afterwards observes, Law Rep. 4 Ex. 42, very truly in my opinion,
“There is no doubt a possibility in all cases where the judges have to
determine whether there is evidence on which the jury may reasonably
find a fact, that the judges may differ in opinion, and it is possible
that the majority may be wrong. Indeed, whenever a decision of the court
below on such a point is reversed, the majority must have been so either
in the court above or the court below. This is an infirmity which must
affect all tribunals.”

I quite agree that this is so, and it is an evil. But I think it a far
slighter evil than it would be to leave in the hands of the jury a power
which might be exercised in the most arbitrary manner....

[The concurring opinions of LORD O’HAGAN and LORD GORDON are omitted.]

_Judgment given for the plaintiff in the court below reversed, and a
nonsuit to be entered._[93]


           KEARNEY _v._ LONDON, BRIGHTON & SOUTH COAST R. CO.
                  IN THE QUEEN’S BENCH, JUNE 15, 1870.
            _Reported in Law Reports, 5 Queen’s Bench, 411._

Declaration, that the defendants were possessed of a bridge over a
certain public highway, and it became their duty to maintain and keep in
repair the bridge, so that it should not be injurious to any person
passing under it; yet the defendants so negligently maintained the
bridge, that while the plaintiff was lawfully passing under the bridge a
portion of the materials of the bridge fell down and injured the
plaintiff.

Plea: Not guilty. Issue joined.

At the trial before Hannen, J., at the sittings in Middlesex after
Michaelmas Term, 1869, it appeared, according to the plaintiff’s
evidence, that the plaintiff, on the 20th of January, 1869, was passing
along the Blue Anchor Road, Bermondsey, under the railway bridge of the
defendants, when a brick fell and injured him on the shoulder. A train
had passed just previously, but whether it was a train of the
defendants, or of another company (whose trains also pass over the
bridge), did not appear. The bridge had been built three years, and is
an iron girder bridge resting on iron piers, on one side, and on a
perpendicular brick wall with pilasters, on the other, and the brick
fell from the top of one of the pilasters, where one of the girders
rested on the pilaster.

The defendants called no witnesses,[94] but rested their defence on
there being no evidence of negligence in the defendants; and also on the
ground that the injury to the plaintiff’s shoulder was not really caused
by the falling of the brick.

As to the evidence of negligence, the learned judge told the jury that
if they thought the bare circumstance of a brick falling out was not
evidence of negligence, they would find for the defendants; if they
thought otherwise, for the plaintiff; and the court would determine
whether there was legal evidence of negligence or not, as to which he
should reserve leave to the defendants to move.

The jury found a verdict for the plaintiff for 25_l._

A rule was obtained to enter a nonsuit, on the ground that there was no
evidence of negligence to leave to the jury.[95]

COCKBURN, C. J. As we have had the whole matter carefully brought before
us, with the cases bearing upon the subject, I think we should gain
nothing by taking further time to consider it; and, therefore, although
I regret to say we are not unanimous upon the point, I think it is
better to dispose of the case at once.

My own opinion is, that this is a case to which the principle _res ipsa
loquitur_ is applicable, though it is certainly as weak a case as can
well be conceived in which that maxim could be taken to apply. But I
think the maxim is applicable; and my reason for saying so is this. The
company who have constructed this bridge were bound to construct it in a
proper manner, and to use all reasonable care and diligence in keeping
it in such a state of repair that no damage from its defective condition
should occur to those who passed under it, the public having a right to
pass under it. Now we have the fact that a brick falls out of this
structure, and injures the plaintiff. The proximate cause appears to
have been the looseness of the brick, and the vibration of a train
passing over the bridge, acting upon the defective condition of the
brick. It is clear, therefore, that the structure in reference to this
brick was out of repair. It is clear that it was incumbent on the
defendants to use reasonable care and diligence, and I think the brick
being loose affords, prima facie, a presumption that they had not used
reasonable care and diligence. It is true that it is possible that, from
changes in the temperature, a brick might get into the condition in
which this brickwork appears to have been from causes operating so
speedily as to prevent the possibility of any diligence and care applied
to such a purpose intervening in due time, so as to prevent an accident.
But inasmuch as our experience of these things is, that bricks do not
fall out when brickwork is kept in a proper state of repair, I think
where an accident of this sort happens, the presumption is that it is
not the frost of a single night, or of many nights, that would cause
such a change in the state of this brickwork as that a brick would fall
out in this way; and it must be presumed that there was not that
inspection and that care on the part of the defendants which it was
their duty to apply. On the other hand, I admit most readily that a very
little evidence would have sufficed to rebut the presumption which
arises from the manifestly defective state of this brickwork. It might
have been shown that many causes, over which the defendants had no
control, might cause this defect in so short a time as that it could not
be reasonably expected that they should have inspected it in the
interval. They might, if they were able, have shown that they had
inspected the bridge continually, or that such a state of things could
not be anticipated, and had never been heard of or known before.
Anything which tended to rebut the presumption arising from an accident
caused by the defective condition of the brickwork, which it was their
duty to keep in a proper condition of repair, even if such evidence were
but slight, might have sufficed; but the defendants chose to leave it on
the naked state of facts proved by the plaintiff. Upon that naked state
of facts it is not unimportant to see what might have been the cause of
the defective condition of this brickwork. We have the fact, the datum,
that the brickwork was in a defective condition, and we have it admitted
that it was the defendants’ duty to use reasonable care and diligence to
keep it in a proper condition. Where it is the duty of persons to do
their best to keep premises, or a structure, of whatever kind it may be,
in a proper condition, and we find it out of condition, and an accident
happens therefrom, it is incumbent upon them to show that they used that
reasonable care and diligence which they were bound to use, and the
absence of which it seems to me may fairly be presumed from the fact
that there was the defect from which the accident has arisen. Therefore,
there was some evidence to go to the jury, however slight it may have
been, of this accident having arisen from the negligence of the
defendants; and it was incumbent on the defendants to give evidence
rebutting the inference arising from the undisputed facts; that they
have not done, and I therefore think this rule must be discharged.

[LUSH, J., delivered a concurring opinion. HANNEN, J., delivered a
dissenting opinion.]

                                                  _Rule discharged._[96]


                      MARCEAU _v._ RUTLAND R. CO.
              COURT OF APPEALS, NEW YORK, APRIL 28, 1914.
                _Reported in 211 New York Reports, 203._

WERNER, J. The question presented by this appeal is whether the case is
one in which it is proper to apply the maxim _res ipsa loquitur_....[97]

The phrase _res ipsa loquitur_, literally translated, means that the
thing or affair speaks for itself. It is merely a short way of saying
that the circumstances attendant upon an accident are themselves of such
a character as to justify the conclusion that the accident was caused by
negligence. The inference of negligence is deducible, not from the mere
happening of the accident, but from the attendant circumstances. “It is
not that, in any case, negligence can be assumed from the mere fact of
an accident and an injury; but in these cases the surrounding
circumstances which are necessarily brought into view by showing how the
accident occurred, contain, without further proof, sufficient evidence
of the defendant’s duty and of his neglect to perform it. The fact of
the casualty and the attendant circumstances may themselves furnish all
the proof of negligence that the injured person is able to offer, or
that it is necessary to offer.” Shearman & Redfield on Negligence, § 59.
This section was quoted with approval by Judge Cullen in writing for
this court in Griffen _v._ Manice, 166 N. Y. 188, 193, and in that
connection he expressed the view that “the application of the principle
depends on the circumstances and character of the occurrence, and not on
the relation between the parties, except indirectly so far as that
relation defines the measure of duty imposed on the defendant.” He
quoted also from the opinion of Judge Danforth in Breen _v._ N. Y. C. &
H. R. R. Co., 109 N. Y. 297, 300, in which the author said “there must
be reasonable evidence of negligence, but when the thing causing the
injury is shown to be under the control of a defendant, and the accident
is such as, in the ordinary course of business, does not happen if
reasonable care is used, it does, in the absence of explanation by the
defendant, afford sufficient evidence that the accident arose from want
of care on its part.” In the Griffen case Judge Cullen followed this
quotation from the Breen case, with the pertinent observation that he
could see no reason “why the rule thus declared is not applicable to all
cases or why the probative force of the evidence depends on the relation
of the parties. Of course, the relation of the parties may determine the
fact to be proved, whether it be want of the highest care or only want
of ordinary care, and, doubtless, circumstantial evidence, like direct
evidence, may be insufficient as a matter of law to establish the want
of ordinary care, though sufficient to prove absence of the highest
degree of diligence. But the question in every case is the same whether
the circumstances surrounding the occurrence are such as to justify the
jury in inferring the fact in issue.” Thus we see that this court is
definitely committed to the view that the application of the maxim _res
ipsa loquitur_ depends, not upon the relation of the injured person to
the person or party who is charged with causing the injury, but upon the
explanatory circumstances which surround the happening of the accident.
The rule thus expressed has been recognized in the recent cases of
Robinson _v._ Consolidated Gas Co., 194 N. Y. 37, 41, and Hardie _v._
Boland Co., 205 N. Y. 336, 341, and has been followed in many cases in
the several Appellate Divisions.[98]

While it is, therefore, the settled law that the maxim is applicable to
any case where the facts warrant its application, it is apparent that
the employee who invokes it against his employer encounters difficulties
that do not hamper the wayfarer in a public place or the passenger in a
common carrier’s conveyance. The man who was lawfully upon the highway
need go no farther in the first instance than to prove that he was hit
by a falling wall (Mullen _v._ St. John, 57 N. Y. 567) or by a flying
missile (Wolf _v._ Am. Tract Soc., 164 N. Y. 30, 33; Hogan _v._ Manh.
Ry. Co., 149 N. Y. 23; Volkmar _v._ Manh. Ry. Co., 134 N. Y. 418), and
that the thing by which he was injured came from the premises of the
defendant. The passenger who was for the time under the protection of a
common carrier needs only to show that the train upon which he was
riding left the track (Seyboldt _v._ N. Y., L. E. & W. R. R. Co., 95 N.
Y. 562, 565) or collided with another car or train (Loudoun _v._ Eighth
Ave. R. R. Co., 162 N. Y. 380) and thus caused his injuries. The reason
for the rule in such cases is not far to seek. The owner of a building
or structure must exercise a high degree of care to so keep it that the
wayfarer on the public streets shall not be injured by falling walls or
missiles. The common carrier is under the strict duty to its passenger
to keep its cars and tracks in a safe condition, and in all such cases
where the plaintiff “has shown a situation which could not have been
produced except by the operation of abnormal causes, the onus then rests
upon the defendant to prove that the injury was caused without his
fault.” Seyboldt _v._ N. Y., L. E. & W. R. R. Co., 95 N. Y. 565, 568.
Ordinarily walls do not fall, missiles do not fly and trains are not
derailed when those in control are in the exercise of the requisite
care, and, therefore, the inference of negligence follows in logical
sequence.

In the nature of things the injured employee who sues his employer must
present a much higher degree of proof than is necessary in the case of a
wayfarer or passenger. It is to be emphasized, however, that the
difference is one of degree and not of kind. This more onerous burden
which is placed upon the employee is the natural concomitant of the
relation of the parties and of their resultant obligations. The employer
is bound merely to the exercise of reasonable care in providing his
employee with a safe place in which to work, with proper and adequate
tools, appliances and machinery, and with fellow-employees competent for
the tasks to which they are assigned. If the injured employee sues at
common law and seeks to invoke the maxim, he must necessarily make proof
of facts and circumstances which, under the common law, exclude every
inference except that of the employer’s negligence. This means that the
employee must himself be free from the imputation of contributory
negligence; that he is not the victim of the negligence of co-employees;
that the injury is not the result of some risk either inherent in the
occupation or voluntarily assumed by the employee; and that the accident
is one which, in the ordinary course of events, could not have happened
if the employer had exercised the degree of care required of him by the
common law. The same rule applies, in a modified degree, where the
employee sues under the Employers’ Liability Act, as the plaintiff in
this case has done. In such a case the plaintiff must establish facts
and circumstances which, under the statute, would entitle him to recover
in the absence of a sufficient explanation by the defendant, absolving
him from the imputation of negligence. The proof must not be conjectural
or speculative, but must consist of evidence which, tested by the
ordinary rules of experience and observation, points to the single
conclusion that the employer’s omission of a duty which he owes to his
employee was the sole efficient cause of the accident. Ferrick _v._
Eidlitz, 195 N. Y. 248, 252.

The next question, in logical progression, is whether the plaintiff has
established his case by facts and circumstances which negative the
existence of any cause for the accident by which he was injured, save
the negligence of the defendant. The plaintiff, as has been stated, was
a locomotive fireman in the employ of the defendant. On the 25th of
March, 1911, he and his engineer left Malone on engine No. 2055 for
Moira to assist in bringing back a train. After arriving at Moira the
engine was turned around and coupled to another engine already attached
to a train, and a start was made for the return to Malone. Suddenly
there occurred an explosion in the fire box of the engine which drove
the doors from their fastenings, and expelled fire and boiling water
into the cab, and burned and scalded the plaintiff, and blew him out of
the cab to the ground with such force as to bruise him. Although this
accident was of an unusual character, it will be assumed for the
purposes of this discussion that it was not such an occurrence as would,
in and of itself, justify the application of the maxim _res ipsa
loquitur_, for the engine was then in the custody and control of the
plaintiff and his engineer. The mere happening of the accident did not
necessarily exclude the inference that it might have been caused by the
negligence of the plaintiff, or without any negligence at all. It was,
therefore, necessary for the plaintiff to supplement the proof of the
accident with evidence tending to show that it resulted from the failure
of the defendant to exercise ordinary care, either in the selection of
the engine or in keeping it in reasonably safe repair. In that behalf
the record discloses a number of facts and circumstances that bear upon
the accident very directly and cogently. It appears that the train crews
employed by the defendant have nothing to do with the care and
inspection of the internal and hidden parts of the engines. That work is
committed to a special corps of employees whose place of duty is in the
hostelry where the engines are housed, made ready for service, and
turned over to the crews designated to take them out. The engineers are
charged with the duty of making a report of each trip which shall
specify any needed repairs that come under their observation. The
engineer Francey, who was on engine 2055 at the time of the accident,
testified that he had used it on various specified dates during the
month preceding the day of the accident, and that he had orally reported
it as leaking, although he had been turning in written reports which
made no mention of the fact. While such a circumstance might ordinarily
affect the credibility of a witness, all doubt upon this subject is
dissipated by the testimony of the defendant’s witnesses showing that
the engine was inspected by the foreman of boiler makers on or about
March 21st, 1911, and found to be in a leaky condition. Several of
defendant’s witnesses testified that the engine had been in the shop at
various times during the month on account of leaking flues, and that the
last repairs in this regard were made two or three days before the
accident.

After the accident an examination of the engine was made which revealed
the probable cause of the trouble. One of the flues, which extend
longitudinally through the boiler from the rear flue sheet to another
flue sheet next the smoke stack, had been pushed or blown out of its
socket in the rear flue sheet so that the forward end of the flue
projected several feet beyond the forward flue sheet; thus leaving an
opening in the rear flue sheet through which the boiling water and steam
were admitted into the fire pot where the explosion was generated. There
were 342 of these flues which were each 1⅞ inches in diameter and about
16 feet in length. These flues are “safe ended” into the flue sheets so
that when they are in perfect condition there can be no leakage through
them from the boiler. The particular flue that was blown or driven out
of its place was in the bottom row of flues where there could be no
inspection without taking out the “brick arch,” and that could be done
only when the boiler was not in steam. There can be no doubt that the
explosion by which the plaintiff was injured was due immediately to the
displacement of the flue; but the cause of the dislodgement of the flue
is not so clear. It is a matter of common knowledge that steam, like
electricity, is a capricious and fickle agency which sometimes causes
unexpected and unexplainable accidents. If the plaintiff’s case were
wholly dependent upon evidence merely showing the happening of this
explosion, it might be necessary to hold that he had not proved enough
to give him the benefit of the maxim which he invokes. The ultimate
question, therefore, is whether he has the support of surrounding
circumstances which show that the accident was of “such a character as
does not ordinarily occur where the party charged with responsibility
has exercised the degree of care and caution required by law to avoid
such a mishap.” Henson _v._ Lehigh Valley R. R. Co., 194 N. Y. 205, 211.
We think he has. The defendant’s foreman testified that if a flue is
loose at both ends it would be liable to move from the pressure, and
that if a flue is loose at one end it is more liable to move than one
that is not loose. It is undisputed that defendant’s chief boiler man
inspected this engine on the 21st or 22d of March and found that a
number of flues, about twenty-five, were leaking. These were repaired,
but the boiler still leaked on the 24th, and the explosion occurred on
the 25th. Since the defendant’s experts had found loose and leaking
flues which they repaired, it is reasonable to infer that the
displacement of another flue within two or three days was attributable
to the same cause. This was not a part of the locomotive over which the
plaintiff had any control, or in respect of which he had, so far as the
record discloses, any duty or knowledge. The work of inspection and
repair was the work of the defendant, and any failure in this regard was
its failure. The almost immediate recurrence of a condition that had led
to inspection and repair was circumstantial evidence which tended to
show that the work had not been thoroughly done. We think, therefore,
that the plaintiff was entitled to rest upon the rule of _res ipsa
loquitur_, and that in the absence of a satisfactory and convincing
explanation by the defendant, the plaintiff was entitled to recover.

Counsel for the defendant contends that such an explanation has been
made. In that regard it appears that the locomotive was of a modern and
standard type; that for several months from January, 1910, it was in the
main shops of the defendant at Rutland, where it was given a thorough
overhauling and sent out in perfect condition; that the complaints of
leakage made in the early part of 1911 were followed by prompt
inspection and complete repair. This was an explanation well calculated
indeed to create a serious issue of fact, but we think it would be going
too far to hold that it was conclusive as matter of law. The limitations
of the rule of _res ipsa loquitur_, and the legal effect of defendant’s
explanation, were well stated in the charge to the jury, and we think
the judgment entered on the verdict must stand.

The judgment should be affirmed, with costs.

WILLARD BARTLETT, Ch. J., COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ.,
concur; HORNBLOWER, J., not sitting.

                                                _Judgment affirmed._[99]


                  WING _v._ LONDON GENERAL OMNIBUS CO.
                 IN THE COURT OF APPEAL, JULY 16, 1909.
               _Reported in [1909] 2 King’s Bench, 652._

FLETCHER MOULTON, L. J., read the following judgment:[100]—This is an
appeal from the judgment delivered by the judge of the county court of
Middlesex held in Clerkenwell in an action in which the plaintiff sued
for damages resulting from an accident which occurred while she was a
passenger in a motor omnibus belonging to the defendants.

The plaintiff’s claim was based on two alternative grounds: (1) that the
defendants’ servants, whilst in charge of the motor omnibus, were guilty
of negligence causing the accident, and (2) that the motor omnibus was
itself a dangerous machine, and that the defendants were liable for
having placed it upon the roadway, thereby creating a nuisance, whereby
the plaintiff suffered damage.

The evidence given at the trial as to the nature and circumstances of
the accident was meagre in the extreme. The plaintiff deposed to nothing
more than that she was a passenger in the omnibus, and that she heard
breaking of glass, and knew that the omnibus had hit something, and that
she heard something fall. She tried to get out, and, in so doing, hurt
her foot. No other witness was called who was present at the time of the
accident, but evidence was given on her behalf by a police constable,
who came up afterwards, and proved that an electric standard had been
broken in the accident, and that the hind step of the motor omnibus had
been slightly bent. No other damage had been caused to the omnibus. He
also proved that the road was in a greasy state at the time by reason of
rain that had fallen during the day. He was asked by the plaintiff’s
counsel as to certain admissions made to him at the time by the driver
and conductor of the omnibus, and proved that they stated to him that
the hind part of the omnibus skidded, when going about five miles an
hour, while the driver was trying to avoid two other vehicles. The
defendants called no evidence except as to the quantum of damage. At the
end of the plaintiff’s case, counsel for the defendants submitted that
there was no evidence, either of negligence or of nuisance, to go to the
jury, and the learned judge gave partial effect to that contention by
withdrawing from the jury the question of negligence in the driving or
management of the car. The plaintiff did not take exception to this by
giving a cross notice of appeal, nor was the point raised before the
Divisional Court, and it is not, in my opinion, open to her counsel to
raise it now. But, apart from this, I am of opinion that the learned
judge was right in so doing. There was no evidence whatever that the
accident was due to negligence on the part of the servants of the
defendants who were in charge of the omnibus, unless the mere occurrence
of the accident amounts to such evidence. In my opinion the mere
occurrence of such an accident is not in itself evidence of negligence.
Without attempting to lay down any exhaustive classification of the
cases in which the principle of _res ipsa loquitur_ applies, it may
generally be said that the principle only applies when the direct cause
of the accident, and so much of the surrounding circumstances as was
essential to its occurrence, were within the sole control and management
of the defendants, or their servants, so that it is not unfair to
attribute to them a _prima facie_ responsibility for what happened. An
accident in the case of traffic on a highway is in marked contrast to
such a condition of things. Every vehicle has to adapt its own behaviour
to the behaviour of other persons using the road, and over their actions
those in charge of the vehicle have no control. Hence the fact that an
accident has happened either to or through a particular vehicle is by
itself no evidence that the fault, if any, which led to it was committed
by those in charge of that vehicle. Exceptional cases may occur in which
the peculiar nature of the accident may throw light upon the question on
whom the responsibility lies, but there is nothing of the kind here. The
collision with the electric standard was due to the omnibus skidding,
and, if we are to give any weight to the admissions made by the
defendants’ servants which were proved in evidence in chief as part of
the plaintiff’s case, that skidding was due to difficulties in avoiding
other vehicles. There is certainly no evidence to negative such a
probable explanation of what actually happened, and it is impossible to
say that this points to negligence, or that it establishes that any
negligent act of the defendants’ servant was the cause of the accident.
I am therefore of opinion that the learned judge acted rightly in
withdrawing from the jury the issue as to the accident being due to
negligence of the defendants’ servants in the driving or management of
the vehicle.[101]


                   CARMODY _v._ BOSTON GAS LIGHT CO.
        SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 2, 1895.
             _Reported in 162 Massachusetts Reports, 539._

Four actions for damages occasioned to the respective plaintiffs by the
escape of gas were tried together.

Plaintiffs’ evidence tended to show that gas escaped into plaintiffs’
apartments from defendant’s pipes in the street; that plaintiffs inhaled
the gas while asleep; and that the escape was due to the defective
condition of the pipe.

Defendant’s evidence tended to prove that the defect in the pipe and the
consequent escape of gas was due to acts of third persons of which the
defendant had no notice, and not to any negligence of the defendant.

The plaintiffs requested the judge to rule that there was evidence
enough of want of proper care on the part of the defendant to make it
responsible, on the ground that it was bound to conduct its gas in a
proper manner; and that the fact that the gas escaped was _prima facie_
evidence of some neglect on the part of the defendant.

The judge declined so to rule, and instructed the jury as follows:

“The mere fact that a pipe broke and the gas escaped is not of itself
sufficient to establish the liability of the company. It is evidence for
you to consider upon the question of neglect; but there is other
evidence bearing upon this question of neglect, and so it becomes a
matter for you to determine, in view of all the evidence bearing upon
the question, the burden being upon the plaintiffs to satisfy you, as a
result of all the evidence, that there was in fact a neglect by the
defendant, through which, and by means of which, this gas escaped.”

                  *       *       *       *       *

Upon the counsel for the plaintiffs remarking, “Your honor has not given
the requests I asked for, and so I will except to that,” the judge
replied as follows: “Well, you asked me to say that the fact that the
gas escaped is _prima facie_ evidence of some neglect on the part of the
defendant. I do not choose to use that expression ‘_prima facie_
evidence,’ unless the defendant consents to it. I have already told the
jury that it was evidence of neglect, or of negligence, on the
defendant’s part, and evidence the force of which it was for them to
determine in connection with any other evidence in the case bearing upon
the same subject.”

The jury returned a verdict for the defendant; and the plaintiffs
alleged exceptions.[102]

BARKER, J. The plaintiffs asked the court to instruct the jury “that
there was evidence enough of want of proper care on the part of the
defendant to make it responsible, on the ground that it was bound to
conduct its gas in a proper manner, and that the fact that the gas
escaped was _prima facie_ evidence of some neglect on the part of the
defendant.” This request was copied from a ruling given in Smith _v._
Boston Gas Light Co., 129 Mass. 318, where this court said of it that,
as applied to the facts of that case, it could not be said to be wrong.
The presiding justice in the present case declined to give the
instruction, but instructed the jury in other terms, which fully and
correctly dealt with the phases of the cause to which the request was
addressed.

While the ruling requested is sufficiently correct if it be construed as
declaring that there was enough evidence of want of proper care to be
submitted to the jury, it would invade the proper province of the jury
if it was understood by them to mean that there was evidence enough to
require them to find the defendant negligent, and the presiding justice
was not bound to give a ruling which, as applied to the case upon trial,
might have been so understood. Nor was he bound to use the Latin phrase
upon which the plaintiffs insisted, but might well say, in place of it,
that the fact that gas escaped was evidence of neglect “and evidence the
force of which it was for them to determine in connection with any other
evidence in the case bearing on the same subject.”

The plaintiffs’ exception did not go to the charge as given, but merely
to the refusal of the request. They nevertheless argue that the
statement of the charge, that “the mere fact that a pipe broke and the
gas escaped is not of itself sufficient to establish the liability of
the company,” was incorrect. But there was evidence with which the jury
had to deal tending to show that the defendant had used due care to
conduct its gas in a proper manner, and that the escape of gas by which
the plaintiffs were injured was due to the acts of third persons of
which the defendant had no notice, and not to any negligence of the
defendant.

It is apparent, from the situation of the evidence and the context of
the charge, that the sentence to which the plaintiffs now object could
not have been understood by the jury as forbidding them to draw the
inference of negligence from the facts that a pipe broke and that gas
escaped; but that, as there was other evidence bearing upon the question
of negligence, they must consider and weigh it all, and not come to a
conclusion upon two circumstances merely.

The true construction of the ruling asked, as applied to the case at
bar, would be, that, as matter of law, the breaking of a pipe and the
consequent escape of gas prove negligence. The true rule is, that a jury
may find negligence from those circumstances, but it is for them to say
whether they will do so; and, if there are other circumstances bearing
on the question, they must weigh them all.

Instructions that evidence “is sufficient to show,” or “has a tenddency
to show,” or “is enough to show,” or “is _prima facie_ evidence of,” are
not to be understood as meaning that there is a presumption of fact, but
that the jury are at liberty to draw the inference from them.
Commonwealth _v._ Clifford, 145 Mass. 97. Commonwealth _v._ Keenan, 148
Mass. 470. And so the instruction in a case where a number of
circumstances bearing upon a question of fact are in evidence, that a
part of them are not of themselves sufficient to establish the fact,
coupled with explicit instructions that they are to be considered, must
be understood as directing the jury to weigh together all the pertinent
circumstances, and not to draw their inference from a part without
considering all.

                                            _Exceptions overruled._[103]


                          BENEDICK _v._ POTTS
               COURT OF APPEALS, MARYLAND, JUNE 28, 1898.
                 _Reported in 88 Maryland Reports, 52._

Appeal from Circuit Court, where judgment was entered on a verdict for
defendant, ordered by the court.

Defendant owned and operated, at a pleasure resort, a mimic railway,
which was a wooden structure. Open cars were hoisted up an incline to
the highest point of the railway, and were then run by gravity down and
around a circular track to the ground. The length of the spiral track
was about two thousand feet, and it made three circuits before reaching
the ground. At about the middle of the last circle nearest the ground,
the cars passed through a tunnel which was part of the structure. This
tunnel was one hundred and fifty feet long, and completely incased that
portion of the track, and hid the cars and their occupants from all
observation when passing through it. The cars were provided with handles
for the occupants to grasp during the rapid descent. Plaintiff was the
sole occupant of the rear seat in one of the cars. The car was started
and made the descent; but when it reached the ground at the end of the
track the plaintiff was not in it, though as it entered the tunnel he
was seen to be upon it. Search was at once made, and he was found inside
the tunnel, in an unconscious condition, with a wound upon his head.
After several days he was restored to consciousness. For the damages
thus sustained, this suit was brought.

The car did not leave the track, no part of it was shown to be out of
repair, the track was not defective, and no explanation is given in the
record as to what caused the injury. The plaintiff distinctly stated
that he made no effort to rise as he passed through the tunnel, and that
he did not relax his grasp on the sides of the car. He was in the car
when it passed into the tunnel. He was not in it when it emerged. How he
got off was not shown.

Upon this state of facts the trial court instructed the jury that there
was no legally sufficient evidence to show that the defendant had been
guilty of negligence; and the verdict and judgment were accordingly
entered for defendant. Plaintiff brought up the record by appeal.[104]

MCSHERRY, C. J. This is an action to recover damages for a personal
injury, and the single question which the record presents is whether
there was legally sufficient evidence of the defendant’s imputed
negligence to carry the case to the jury. The facts are few and simple.
[The learned judge then stated the facts.]

It is a perfectly well-settled principle that to entitle a plaintiff to
recover in an action of this kind he must show not only that he has
sustained an injury but that the defendant has been guilty of some
negligence which produced that particular injury. The negligence alleged
and the injury sued for must bear the relation of cause and effect. The
concurrence of both and the _nexus_ between them must exist to
constitute a cause of action. As an injury may occur from causes other
than the negligence of the party sued, it is obvious that before a
liability on account of that injury can be fastened upon a particular
individual, it must be shown, or there must be evidence legally tending
to show, that he is responsible for it; that is, that he has been guilty
of the negligence that produced or occasioned the injury. In no instance
can the bare fact that an injury has happened, of itself and divorced
from all the surrounding circumstances, justify the inference that the
injury was caused by negligence. It is true that direct proof of
negligence is not necessary. Like any other fact, negligence may be
established by the proof of circumstances from which its existence may
be inferred. But this inference must, after all, be a legitimate
inference and not a mere speculation of conjecture. There must be a
logical relation and connection between the circumstances proved and the
conclusion sought to be adduced from them. This principle is never
departed from, and in the very nature of things it never can be
disregarded. There are instances in which the circumstances surrounding
an occurrence and giving a character to it are held, if unexplained, to
indicate the antecedent or coincident existence of negligence as the
efficient cause of an injury complained of. These are the instances
where the doctrine of _res ipsa loquitur_ is applied. This phrase, which
literally translated means that “the thing speaks for itself,” is merely
a short way of saying that the circumstances attendant upon an accident
are themselves of such a character as to justify a jury in inferring
negligence as the cause of that accident; and the doctrine which it
embodies, though correct enough in itself, may be said to be applicable
to two classes of cases only, viz., “first, when the relation of carrier
and passenger exists and the accident arises from some abnormal
condition in the department of actual transportation; second, where the
injury arises from some condition or event that is in its very nature so
obviously destructive of the safety of person or property and is so
tortious in its quality as, in the first instance at least, to permit no
inference save that of negligence on the part of the person in the
control of the injurious agency.” Thomas on Neg. 574. But it is obvious
that in both instances more than the mere isolated, single, segregated
fact that an injury has happened must be known. The injury, without
more, does not necessarily speak or indicate the _cause_ of that
injury—it is colorless; but the act that produced the injury being made
apparent may, in the instances indicated, furnish the ground for a
presumption that negligence set that act in motion. The maxim does not
go to the extent of implying that you may from the mere fact of an
injury infer what physical act produced that injury; but it means that
when the physical act has been shown or is apparent and is not explained
by the defendant, the conclusion that negligence superinduced it may be
drawn as a legitimate deduction of fact. It permits an inference that
the known act which produced the injury was a negligent act, but it does
not permit an inference as to what act did produce the injury.
Negligence manifestly cannot be predicated of any act until you know
what the act is. Until you know _what_ did occasion an injury, you
cannot say that the defendant was guilty of some negligence that
produced that injury. There is, therefore, a difference between
inferring as a conclusion of fact _what_ it was that did the injury; and
inferring from a known or proven act occasioning the injury that there
was negligence in the act that did produce the injury. To the first
category the maxim _res ipsa loquitur_ has no application; it is
confined, when applicable at all, solely to the second. In no case where
the thing which occasioned the injury is unknown has it ever been held
that the maxim applies; because when the thing which produced the injury
is unknown it cannot be said to speak or to indicate the existence of
causative negligence. In all the cases, whether the relation of carrier
and passenger existed or not, the injury alone furnished no evidence of
negligence—something more was required to be shown. For instance: In
Penn. R. R. Co. _v._ MacKinney, 124 Pa. St. 462, it was said: “A
passenger’s leg is broken, while on his passage, in a railroad car. This
mere fact is no evidence of negligence on the part of the carrier until
something further be shown. If the witness who swears to the injury
testifies also that it was caused by a crash in a collision with another
train of cars belonging to the same carrier, the presumption of
negligence immediately arises; not, however, from the fact that the leg
was broken, but from the circumstances attending the fact.” And so in
Byrne _v._ Boadle, 2 Hurl. & Colt. 728, there was proof not only of an
injury but there was evidence to show _how_ the injury happened, and the
presumption of negligence was applied, not because of there being an
injury, but because of the way or manner in which the injury was
produced. And in Howser’s case, 80 Md. 146, the injury was caused by
cross-ties falling from a moving train upon the plaintiff who was
walking by the side of the track, and the presumption of negligence was
allowed, not as an inference deducible from the injury itself, but as a
conclusion resulting from the method in which and the instrumentality by
which the injury had been occasioned. In the recent case of Consolidated
Traction Co. _v._ Thalheimer, Court of Errors and Appeals, N. J., 2
Amer. Neg. Rep. 196,[105] it appeared that the plaintiff was a passenger
of the appellant, and, having been notified by the conductor that the
car was approaching the point where she desired to alight, got up from
her seat and walked to the door while the car was in motion, and, while
going through the doorway, she was thrown into the street by a sudden
lurch and thus injured. The court said: “At all events, the fact that
such a lurch or jerk occurred, as would have been unlikely to occur if
proper care had been exercised, brings the case within the maxim _res
ipsa loquitur_.” The inference of negligence arose not from the injury
to the passenger, but from the _act_ that caused the injury. In B. & O.
R. R. _v._ Worthington, 21 Md. 275, the train was derailed in
consequence of an open switch, and it was held that the injury thus
inflicted on the passenger was presumptive evidence of negligence—not
that the mere injury raised such a presumption, but that the injury
caused in the way and under the circumstances shown indicated actionable
negligence unless satisfactorily explained.

Whether, therefore, there be a contractual relation between the parties
or not, there must be proof of negligence or proof of some circumstances
from which negligence may be inferred, before an action can be
sustained. And whether you characterize that inference an ordinary
presumption of fact, or say of the act that caused the injury, the thing
speaks for itself, you assert merely a rebuttable conclusion deduced
from known and obvious premises. It follows, of course, that when the
_act_ that caused the injury is wholly unknown or undisclosed, it is
simply and essentially impossible to affirm that there was a negligent
act; and neither the doctrine of _res ipsa loquitur_ nor any other
principle of presumption can be invoked to fasten a liability upon the
party charged with having by negligence caused the injury for the
infliction of which a suit has been brought.

Now, in the case at bar there is no evidence that the car on the track
was out of repair. The car went safely to its destination, carrying the
other occupants. There is no evidence that the roof of the tunnel struck
the appellant, or that the fact that a small part of the central plank
of the tunnel roof had been slabbed off had the most remote connection
with the accident. It is a case presenting not a single circumstance
showing _how_ or by what agency the injury occurred, and in which, with
nothing but the isolated fact of the injury having happened, being
proved, it is insisted that the jury shall be allowed to speculate as to
the cause that produced it, and then to _infer_ from the cause thus
assumed but not established, that there was actionable negligence. It is
not an attempt to infer negligence from an apparent cause, but to infer
the cause of the injury from the naked fact of injury, and then to
superadd the further inference that this inferred cause proceeded from
negligence. If in Howser’s case, _supra_, there had been no other
evidence than the mere _fact_ of an injury, it cannot be pretended that
the jury would have been allowed to speculate as to _how_ the injury had
occurred.

The appellant was on the car when it entered the tunnel; he was not on
the car when it emerged, but was found in an unconscious state in the
tunnel. There was no defect in or abnormal condition affecting the means
of actual transportation. The other occupants of the car passed safely
through. What caused the appellant to be out of the car is a matter of
pure conjecture. No one has explained or attempted to explain how he got
where he was found. Indeed, the two persons who occupied the front seat
were ignorant of the appellant’s absence from the car until it had
reached its destination, and the appellant himself distinctly testified
that he did not relax his hold to the car and did not attempt to rise,
but lowered his head as he entered the tunnel. All that is certain is,
that he was injured in _some_ way and he asks that the jury may be
allowed, in the absence of all explanatory evidence, to infer that some
act of a negligent character for which the appellee is responsible,
caused the injury sustained by the appellant. No case has gone to that
extent and no known principle can be cited to sanction such a position.
There has been no circumstance shown which furnishes the foundation for
an inference of negligence; and the circumstances which have been shown
obviously do not bring the case within the doctrine of _res ipsa
loquitur_. There was, consequently, no error in the ruling complained
of, and the judgment of the Circuit Court must be affirmed.

                                               _Judgment affirmed._[106]


                               SECTION V
              THE DUTY OF CARE—MISFEASANCE AND NONFEASANCE


             FLINT & WALLING MANUFACTURING CO. _v._ BECKETT
               SUPREME COURT, INDIANA, DECEMBER 18, 1906.
                _Reported in 167 Indiana Reports, 491._

Beckett brought this action against the Flint & Walling Manufacturing
Company to recover damages for harm done to his barn and the contents
thereof, owing to the fact that the company constructed a windmill
thereon in such an insufficient manner that it fell upon the roof of the
barn.

The complaint contained, in substance, the following statements:—

There was an air-shaft in the centre of the barn, extending from the
bottom to, and projecting through, the roof. Defendant contracted with
plaintiff to erect on the air-shaft a windmill consisting of a wheel,
tower, etc., to be erected in a first-class manner. The defendant
erected the windmill in a negligent manner; especially in the mode of
fastening the tower to the air-shaft. In consequence of this defective
construction, a wind of ordinary velocity caused the windmill to break
and twist the air-shaft and fall about sixty feet on the roof of the
barn.

Trial in the Circuit Court. Verdict for plaintiff and judgment thereon.
Defendant company appealed.[107]

GILLETT, J.

The leading contention of appellant’s counsel is that the duty it owed
to appellee arose out of contract, and that, as appellant was not
engaged in a public employment, its obligation could only be enforced by
an action on the contract for a breach thereof. The latter insistence
cannot be upheld. It is, of course, true that it is not every breach of
contract which can be counted on as a tort, and it may also be granted
that if the making of a contract does not bring the parties into such a
relation that a common-law obligation exists, no action can be
maintained in tort for an omission properly to perform the undertaking.
It by no means follows, however, that this common-law obligation may not
have its inception in contract. If a defendant may be held liable for
the neglect of a duty imposed on him, independently of any contract, by
operation of law, _a fortiori_ ought he to be liable where he has come
under an obligation to use care as the result of an undertaking founded
on a consideration.

Where the duty has its roots in contract, the undertaking to observe due
care may be implied from the relationship, and should it be the fact
that a breach of the agreement also constitutes such a failure to
exercise care as amounts to a tort, the plaintiff may elect, as the
common-law authorities have it, to sue in case or in assumpsit. It is
broadly stated in 1 Comyn’s Digest, Action on the Case for Negligence, A
4, p. 418, that “if a man neglect to do that, which he has undertaken to
do, an action upon the case lies.... But, if there be not any neglect in
the defendant, an action upon the case does not lie against him, though
he do not perform his undertaking.” Professor Pollock says: “One who
enters on the doing of anything attended with risk to the persons or
property of others is held answerable for the use of a certain measure
of caution to guard against that risk. To name one of the commonest
applications, ‘those who go personally or bring property where they know
that they or it may come into collision with the persons or property of
others have by law a duty cast upon them to use reasonable care and
skill to avoid such collision.’... In some cases this ground of
liability may coexist with a liability on contract towards the same
person, and arising (as regards the breach) out of the same facts. Where
a man interferes gratuitously, he is bound to act in a reasonable and
prudent manner according to the circumstances and opportunities of the
case. And this duty is not affected by the fact, if so it be, that he is
acting for reward, in other words, under a contract, and may be liable
on the contract. The two duties are distinct, except so far as the same
party cannot be compensated twice over for the same facts, once for the
breach of contract and again for the wrong. Historically the liability
in tort is older; and indeed it was by special development of this view
that the action of assumpsit, afterwards the common mode of enforcing
simple contracts, was brought into use. ‘If a smith prick my horse with
a nail, etc., I shall have my action upon the case against him, without
any warranty by the smith to do it well.... For it is the duty of every
artificer to exercise his art rightly and truly as he ought.’” Webb’s
Pollock, Torts, 533–536. This general thought also finds expression in
Mr. Street’s valuable work (1 Street, Foundations of Legal Liability,
92). It is there said: “The general doctrine may be laid down thus: In
every situation where a man undertakes to act or to pursue a particular
course he is under an implied legal obligation or duty to act with
reasonable care, to the end that the person or property of others may
not be injured by any force which he sets in operation or by any agent
for which he is responsible. If he fails to exercise the degree of
caution which the law requires in a particular situation, he is held
liable for any damage that results to another just as if he had bound
himself by an obligatory promise to exercise the required degree of
care. In this view, statements so frequently seen in negligence cases,
to the effect that men are bound to act with due and reasonable care,
are really vital and significant expressions. If there had been any
remedial necessity for so declaring, it could obviously have been said
without violence to the principle that men who undertake to act are
subject to a fictitious or implied promise to act with due care.” See
also Howard _v._ Shepherd, (1850) 9 C. B. (67 Eng. Com. Law) 296, 321;
Coy _v._ Indianapolis Gas Co., (1897) 146 Ind. 655, 36 L. R. A. 535;
Parrill _v._ Cleveland, etc., R. Co., (1900) 23 Ind. App. 638; Rich _v._
New York, etc., R. Co., (1882) 87 N. Y. 382; Dean _v._ McLean, (1875) 48
Vt. 412, 21 Am. Rep. 130; Stock _v._ City of Boston, (1889) 149 Mass.
410, 21 N. E. 871, 14 Am. St. 430; Bickford _v._ Richards, (1891) 154
Mass. 163, 27 N. E. 1014, 26 Am. St. 224; Addison, Torts (3d ed.), p.
13; 1 Thompson, Negligence (2d ed.), § 5; 1 Shearman & Redfield,
Negligence (5th ed.), §§ 9, 22; Saunders, Negligence, 55, 121; 6 Cyc.
Law and Proc. 688.

The position in which appellant placed this large and heavy structure,
located, as it was, upon the barn, some seventy feet above the earth,
was such that it was calculated to do great harm to appellee’s property
should it fall. We cannot doubt, in view of the terms of the contract,
construed in the light of the practical construction which the parties
gave to it, to say nothing of the extraneous agreement set forth in the
complaint, that it was the duty of appellant to exercise ordinary care
to secure the tower in such a manner that this heavy and exposed
structure would not, under the action of ordinary winds, weave around
and become detached from the body of the air-shaft. Insecurely fastened,
as the complaint shows that this structure was, appellant was bound to
apprehend that it might fall, and that, if it did, great injury would
thereby be occasioned to appellee. It was also bound to apprehend, from
the very care and skill which it impliedly held itself out as exercising
(a circumstance calculated to throw appellee off his guard), and from
the fact that an examination was difficult, that in all probability the
defects would not be observed in time to avoid the injury. Indeed, as
laid down in Mowbray _v._ Merryweather, [1895] 2 Q. B. 640, and Devlin
_v._ Smith, (1882) 89 N. Y. 470, 42 Am. Rep. 311, appellee owed no duty,
so far as appellant was concerned, to examine the tower. The contrivance
was inherently dangerous, and the circumstances of placing it upon the
barn, as shown, made it calculated to eventuate in harm. This being
true, and as there was no intervening responsible agency between
appellee and the wrong, so that the causal relation remained unbroken,
we can perceive no reason for acquitting appellant of responsibility as
a tort feasor. See Wharton, Negligence (2d ed.), § 438; 1 Beven,
Negligence (2d ed.), 62; Roddy _v._ Missouri Pac. R. Co., (1891) 104 Mo.
234, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. 333. It is not necessary
to consider the extent to which contracts may impose obligations to
exercise care for the protection of third persons, for here the relation
is direct and immediate, but we quote, as showing that there is clearly
a liability in tort, in such a case as this, the following general
statements in 1 Shearman & Redfield, Negligence (5th ed.), § 117, with
reference to the liability for selling dangerous goods: “But one who
knowingly sells an article intrinsically dangerous to human life or
health, such as poison, explosive oils or diseased meat, concealing from
the buyer knowledge of that fact, is responsible to any person who,
without fault on the part of himself or any other person, sufficient to
break the chain of causation, is injured thereby. And we see no reason
why the same rule should not apply to articles known to be dangerous to
property.”

                  *       *       *       *       *

A number of questions are argued by appellant’s counsel which are based
upon the contention that the theory of the complaint was that appellant
had committed a breach of contract. The latter insistence is based on
the fact that the contract is set out in full in the complaint. It is
often difficult to determine whether, in the statement of such a cause
of action as the one under consideration, wherein the very breach of the
contract also constitutes negligence, the purpose of the pleader was to
rely upon a breach of contract or to charge negligence in the violation
of the implied duty which was created by the undertaking of the
defendant. It is true that in an action on the case for negligence,
wherein the declaration or complaint is not based on mere nonfeasance it
is not necessary to plead a consideration, and, therefore, where the
action is based on the manner in which an undertaking was performed, or,
in other words, on some misfeasance or malfeasance, the allegation of a
consideration may be regarded as one of the markings of an action _ex
contractu_. But we do not understand that this is a controlling
consideration; on the contrary, it does not appear to admit of question
that if the contract or consideration be set out as a matter of
inducement only, the plaintiff’s action may be regarded as one in case
for a violation of the common-law duty which the circumstances had
imposed upon the defendant. 1 Chitty, Pleading, *135; Dickson _v._
Clifton, 2 Wils. 319; Watson, Damages for Per. Inj., § 570; 21 Ency. Pl.
and Pr., 913. We are especially impressed with the view that in code
pleading, which was designed preëminently to be a system of fact
pleading, a plaintiff, in suing in tort, may properly set out his
contract, as constituting the underlying fact, instead of charging the
defendant’s undertaking in general terms, and that the plaintiff does
not thereby necessarily commit himself to the theory that his action is
for breach of contract. Leeds _v._ City of Richmond, (1885) 102 Ind.
372; Parrill _v._ Cleveland, etc., R. Co., _supra_; McMurtry _v._
Kentucky Cent. R. Co., (1886) 84 Ky. 462, 1 S. W. 815; Watson, Damages
for Per. Inj., § 570. In the complaint before us appellee not only sets
out the written contract, but he pleads a supplemental or subsidiary
agreement as well, so that it can hardly be said that he relied on the
written contract as the foundation of the action. He charges no breach
of the contract except as it can be implied from the allegations of
negligence; he alleges damages “by reason of the defendant’s negligence,
carelessness, imprudence, and unskilfulness in erecting, constructing,
and fastening said steel tower to said air-shaft as aforesaid;” he
charges, in setting forth the total amount of his damages, that they
were occasioned “by reason of the defendant’s negligence and failure of
duty as herein alleged,” and he avers that he “had no notice or
knowledge of the faulty, negligent, and unskilful erection of said
mill,” and that he himself was without fault or negligence in the
premises. In view of the general structure of the complaint, and
applying to it the rule that a construction of a pleading which will
give effect to all of its material allegations is to be preferred, where
reasonably possible (Monnett _v._ Turpie, [1892] 133 Ind. 424), it
appears to us that it must be held that the action was for the tort.
But, admitting that there is room for doubt on this subject, the fact
that the court below, as the record plainly shows, tried the cause on
the theory that it was an action _ex delicto_, must settle the question
against the contention of appellant. Lake Erie, etc., R. Co. _v._ Acres,
(1886) 108 Ind. 548; Diggs _v._ Way, (1899) 22 Ind. App. 617.

                  *       *       *       *       *

                                               _Judgment affirmed._[108]


                     KELLY _v._ METROPOLITAN R. CO.
                IN THE COURT OF APPEAL, APRIL 24, 1895.
               _Reported in [1895] 1 Queen’s Bench, 944._

Appeal from an order of a judge at chambers affirming an order of a
master directing that the plaintiff’s bill of costs should be referred
back to be drawn on the county court scale.

The action was brought to recover damages for personal injuries to the
plaintiff while a passenger on the defendants’ railway. The statement of
claim alleged an agreement by the defendants to carry the plaintiff
safely, and a breach of that agreement in negligently and improperly
managing the train in which he was, so that it ran into the wall at
Baker Street Station, whereby the plaintiff sustained injury. It was
admitted by the defendants that the accident occurred by the negligence
of the engine-driver in not turning off steam in time to prevent the
train running into the dead-end at the station. A sum of 20_l._ was paid
into court, and the jury returned a verdict for the plaintiff for 25_l._

When the plaintiff’s costs were taken in to be taxed, the master was of
opinion that, on the authority of Taylor _v._ Manchester, Sheffield, and
Lincolnshire Ry. Co., [1895] 1 Q. B. 134, the act of the engine-driver
being one of omission, the action was founded on contract, and that
therefore the plaintiff was only entitled to costs on the county court
scale. On appeal, this decision was affirmed by Day, J.

The plaintiff appealed.

_Kemp, Q. C._, and _Cagney_, for the plaintiff, submitted that the
action was in fact an action of tort, and was tried as such, and that
the plaintiff was entitled to costs on the High Court scale.

_Lawson Walton, Q. C._, and _George Elliott_, for the defendants. The
duty of the defendants was contractual, and they were bound to take due
care not to injure the plaintiff. The act which caused the injury was an
omission to turn off steam, and amounted to a nonfeasance. It was not an
act of commission or misfeasance, and the defendants were not liable in
tort. The distinction is dealt with in the judgment of Lindley, L. J.,
and A. L. Smith, L. J., in Taylor _v._ Manchester, Sheffield, and
Lincolnshire Ry. Co., [1895] 1 Q. B. 134, and the present case comes
within that authority.

[They also cited Foulkes _v._ Metropolitan District Ry. Co., 4 C. P. D.
267; 5 C. P. D. 157.]

A. L. SMITH, L. J., read the following judgment:[109] There appears to
have been some misapprehension as to what was decided in the case of
Taylor _v._ Manchester, Sheffield, and Lincolnshire Ry. Co., [1895] 1 Q.
B. 134, to which I was a party.

The plaintiff in the present case was a passenger on the defendants’
railway, and whilst lawfully riding in one of their carriages was
injured by its being negligently run into a dead-end by the defendants’
driver.

It has been thought by the master, and also by Day, J., that, because
the negligence was that the driver omitted to turn off steam, this
constituted a nonfeasance or omission within what was said in the
above-mentioned case, and that as the plaintiff had recovered 25_l._ and
no more he was only entitled to county court costs. I am clearly of
opinion that this is not what was decided, nor is any such statement to
be found in that judgment.

The distinction between acts of commission or misfeasance, and acts of
omission or nonfeasance, does not depend on whether a driver or
signalman of a defendant company has negligently turned on steam or
negligently hoisted a signal, or whether he has negligently omitted to
do the one or the other. The distinction is this, if the cause of
complaint be for an act of omission or nonfeasance which without proof
of a contract to do what has been left undone would not give rise to any
cause of action (because no duty apart from contract to do what is
complained of exists), then the action is founded upon contract and not
upon tort. If, on the other hand, the relation of the plaintiff and the
defendants be such that a duty arises from that relationship,
irrespective of contract, to take due care, and the defendants are
negligent, then the action is one of tort, and as regards the County
Court Acts and costs this is what was laid down in the above-mentioned
case. The appeal should be allowed with costs here and below.

RIGBY, L. J. I entirely agree. It appears to me that the attempt to
dissect the act of the defendants’ servant, and to treat the mere
omission to turn off steam as a nonfeasance within the meaning of the
cases referred to, altogether fails. An engine-driver is in charge of
the train, and a passenger is in that train, independently of contract,
with the permission of the defendants. That passenger is injured in
consequence of the train being negligently brought into collision with
the dead-end. The proper description of what was done is that it was a
negligent act in so managing the train as to allow it to come into
contact with the dead-end and so cause the accident. It is a case in
which the company by their servant neglected a duty which they owed to
the plaintiff—that is to say, it was a case in which an action of tort
could be brought.

                                                  _Appeal allowed._[110]


                 SOUTHERN RAILWAY COMPANY _v._ GRIZZLE
               SUPREME COURT, GEORGIA, JANUARY 13, 1906.
                _Reported in 124 Georgia Reports, 735._

Action by Mrs. Grizzle against the Southern Railway Company and T. A.
O’Neal.

The petition alleged, in substance, that the petitioner’s husband was
killed by the negligence of the railway company, and of O’Neal, who was
the engineer in charge of the train, while the train was being operated
over a public-road crossing. It was alleged, _inter alia_, that no bell
was rung nor whistle sounded, nor the speed of the train checked, and
that the requirements of the blow-post law[111] were entirely
disregarded by the engineer. To this petition O’Neal demurred on several
grounds. The demurrer was overruled, and O’Neal excepted.[112]

COBB, P. J. 1. An agent is not ordinarily liable to third persons for
mere nonfeasance. Kimbrough _v._ Boswell, 119 Ga. 210. An agent is,
however, liable to third persons for misfeasance.[113] Nonfeasance is
the total omission or failure of the agent to enter upon the performance
of some distinct duty or undertaking which he has agreed with his
principal to do. Misfeasance means the improper doing of an act which
the agent might lawfully do; or, in other words, it is the performing of
his duty to his principal in such a manner as to infringe upon the
rights and privileges of third persons. Where an agent fails to use
reasonable care or diligence in the performance of his duty, he will be
personally responsible to a third person who is injured by such
misfeasance. The agent’s liability in such cases is not based upon the
ground of his agency, but upon the ground that he is a wrong-doer, and
as such he is responsible for any injury he may cause. When once he
enters upon the performance of his contract with his principal, and in
doing so omits, or fails to take reasonable care in the commission of,
some act which he should do in its performance, whereby some third
person is injured, he is responsible therefor to the same extent as if
he had committed the wrong in his own behalf. See 2 Clark & Skyles on
Agency, 1297 _et seq._ Misfeasance may involve also to some extent the
idea of not doing; as where an agent engaged in the performance of his
undertaking does not do something which it is his duty to do under the
circumstances, or does not take that precaution or does not exercise
that care which a due regard to the rights of others requires. All this
is not doing, but it is not the not doing of that which is imposed upon
the agent merely by virtue of his relation, but of that which is imposed
upon him by law as a responsible individual in common with all other
members of society. It is the same not doing which constitutes
actionable negligence in any relation. Mechem on Ag. § 572. As was said
by Gray, C. J., in Obsorne _v._ Morgan, 130 Mass. 102 (39 Am. Rep. 439):
“If the agent once actually undertakes and enters upon the execution of
a particular work, it is his duty to use reasonable care in the manner
of executing it, so as not to cause any injury to third persons which
may be the natural consequence of his acts; and he cannot, by abandoning
its execution midway and leaving things in a dangerous condition, exempt
himself from liability to any person who suffers injury by reason of his
having so left them without proper safeguards. This is not nonfeasance
or doing nothing, but it is misfeasance, doing improperly.” In that case
the agent was held liable by the fall of a tackle-block and chains from
an iron rail suspended from the ceiling of a room, which fell for the
reason that the agent had suffered them to remain in such a manner and
so unprotected that they fell upon and injured the plaintiff. In Bell
_v._ Josselyn, 3 Gray, 309 (63 Am. Dec. 742), Metcalf, J., said:
“Assuming that he was a mere agent, yet the injury for which this action
was brought was not caused by his nonfeasance, but by his misfeasance.
Nonfeasance is the omission of an act which a person ought to do;
misfeasance is the improper doing of an act which a person might
lawfully do.... The defendant’s omission to examine the state of the
pipes, ... before causing the water to be let on, was a nonfeasance. But
if he had not caused the water to be let on, that nonfeasance would not
have injured the plaintiff.”

In the present case the failure of the engineer to comply with the
requirements of the blow-post law was not doing, but the running of the
train over the crossing at a high rate of speed without giving the
signals required by law was a positive act, and the violation of a duty
which both the engineer and the railroad company owed to travelers upon
the highway. The engineer having once undertaken in behalf of the
principal to run the train, it was incumbent upon him to run it in the
manner prescribed by law; and a failure to comply with the law, although
it involved an act of omission, was not an act of mere nonfeasance, but
was an act of misfeasance. This view is strengthened by the fact that
the blow-post law renders the engineer indictable for failure to comply
with its provisions. The allegations of the petition were therefore
sufficient to charge O’Neal with a positive tort, for which the
plaintiff would be entitled to bring her action against him.[114]


          BLACK _v._ NEW YORK, NEW HAVEN, AND HARTFORD R. CO.
        SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 2, 1907.
             _Reported in 193 Massachusetts Reports, 448._

Tort for personal injuries alleged to have been caused by the negligence
of the servants of the defendant on February 7, 1903, while the
plaintiff was a passenger of the defendant. Writ dated March 20, 1903.

At the trial in the Superior Court, Wait, J., at the close of the
plaintiff’s evidence ordered a verdict for the defendant; and the
plaintiff alleged exceptions. The material evidence is described or
quoted in the opinion.

KNOWLTON, C. J. This action was brought to recover for an injury alleged
to have been caused by the negligence of the defendant’s servants. The
plaintiff was a passenger on the defendant’s train, which ran from
Boston through Ashmont on the evening of February 7, 1903. He testified
to having become so intoxicated that he had no recollection of anything
that occurred after leaving a cigar store in Boston, until he awoke in
the Boston City Hospital, about four o’clock the next day. One Thompson
testified “that he took the 9.23 train on the evening of February 7,
1903, at the South Station in Boston for Ashmont, and occupied a seat
near the rear of the last car of the train; that there were about twenty
passengers in the car, and he noticed Black sitting in the seat
opposite, very erect, with his eyes closed. When the conductor came
through, Mr. Black went through his pockets as if he were looking for a
ticket, and not being able to find it, tendered a fifty-cent piece in
payment for his fare. The conductor began to name off the stations from
Field’s Corner first and then Ashmont and when he said ‘Ashmont,’ Mr.
Black nodded his head. The conductor gave him his change and his rebate
check. At Ashmont, where the train stops, there is a gravelled walk,
running the whole length, as a platform, then there is a flight of
steps, ten or twelve, that leads up to the asphalt walk around the
station, so when you go up from the steps you have to walk along this
walk. The conductor and brakeman took Black out of the car, with one on
each side. The distance from the steps of the car to the steps that lead
up to the station was twenty-five feet. As they went along the platform,
the conductor and trainman were on each side of him. They tried to stand
him up, but his legs would sink away from him. They sort of helped him
up and carried him to the bottom of the steps. When they went to the
bottom of the steps, they continued, one on each side of him. Then one
of the men got on one side with his arm around him and the other back of
him sort of pushing him, and they took him up about the fifth or sixth
step, and after they got him up there, they turned right around and left
him and went down the steps. Mr. Black sort of balanced himself there
just a minute and then fell completely backward. He turned a complete
somersault and struck on the back of his head. The railroad men just had
time to get down to the foot of the steps. There was a railing that led
up those steps and the steps were about ten feet wide. Mr. Black was
upon the right-hand side going up and he was left right near the
railing. When he fell, he did not seize hold of anything, his arms were
at his side.”

On this testimony the jury might find that the plaintiff was so
intoxicated as to be incapable of standing, or walking, or caring for
himself in any way, and that the defendant’s servants, knowing his
condition, left him halfway up the steps where they knew, or ought to
have known, that he was in great danger of falling and being seriously
injured. They were under no obligation to remove him from the car, or to
provide for his safety after he left the car. But they voluntarily
undertook to help him from the car, and they were bound to use ordinary
care in what they did that might affect his safety. Not only in the act
of removal, but in the place where they left him, it was their duty to
have reasonable regard for his safety in view of his manifest condition.
The jury might have found that they were negligent in leaving him on the
steps, where a fall would be likely to do him much harm. Moody _v._
Boston & Maine Railroad, 189 Mass. 277.

The defence rests principally upon the fact that the plaintiff was
intoxicated, and was incapable of caring for himself after he was taken
from the train, and therefore was not in the exercise of due care. If
his voluntary intoxication was a direct and proximate cause of the
injury, he cannot recover. The plaintiff contends that it was not a
cause, but a mere condition, well known to the defendant’s servants, and
that their act was the direct and proximate cause of the injury, with
which no other act or omission had any causal connection. The
distinction here referred to is well recognized in law....

We are of opinion that the jury in the present case might have found
that the plaintiff was free from any negligence that was a direct and
proximate cause of the injury.

                                            _Exceptions sustained._[115]


               UNION PACIFIC RAILWAY COMPANY _v._ CAPPIER
                 SUPREME COURT, KANSAS, APRIL 11, 1903.
                 _Reported in 66 Kansas Reports, 649._

ERROR from Wyandotte District Court.

SMITH, J. This was an action brought by Adeline Cappier, the mother of
Irvin Ezelle, to recover damages resulting to her by reason of the loss
of her son, who was run over by a car of plaintiff in error, and died
from the injuries received. The trial court, at the close of the
evidence introduced to support a recovery by plaintiff below, held that
no careless act of the railway company’s servants in the operation of
the car was shown, and refused to permit the case to be considered by
the jury on the allegations and attempted proof of such negligence. The
petition, however, contained an averment that the injured person had one
leg and an arm cut off by the car-wheels, and that the servants of the
railway company failed to call a surgeon, or to render him any
assistance after the accident, but permitted him to remain by the side
of the tracks and bleed to death. Under this charge of negligence a
recovery was had.

While attempting to cross the railway tracks Ezelle was struck by a
moving freight-car pushed by an engine. A yardmaster in charge of the
switching operations was riding on the end of the car nearest to the
deceased and gave warning by shouting to him. The warning was either too
late or no heed was given to it. The engine was stopped. After the
injured man was clear of the track, the yardmaster signalled the
engineer to move ahead, fearing, as he testified, that a passenger train
then about due would come upon them. The locomotive and car went forward
over a bridge, where the general yardmaster was informed of the accident
and an ambulance was summoned by telephone. The yardmaster then went
back where the injured man was lying and found three Union Pacific
switchmen binding up the wounded limbs and doing what they could to stop
the flow of blood. The ambulance arrived about thirty minutes later and
Ezelle was taken to a hospital, where he died a few hours afterward.

In answer to particular questions of fact, the jury found that the
accident occurred at 5.35 P. M.; that immediately one of the railway
employees telephoned to police headquarters for help for the injured
man; that the ambulance started at 6.05 P. M. and reached the nearest
hospital with Ezelle at 6.20 P. M., where he received proper medical and
surgical treatment. Judgment against the railway company was based on
the following question and answer:—

“Ques. Did not defendant’s employees bind up Ezelle’s wounds and try to
stop the flow of blood as soon as they could after the accident
happened? Ans. No.”

The lack of diligence in the respect stated was intended, no doubt, to
apply to the yardmaster, engineer, and fireman in charge of the car and
engine.

These facts bring us to a consideration of the legal duty of these
employees toward the injured man after his condition became known.
Counsel for defendant in error quotes the language found in Beach on
Contributory Negligence (3d ed.), § 215, as follows:—

“Under certain circumstances, the railroad may owe a duty to a
trespasser after the injury. When a trespasser has been run down, it is
the plain duty of the railway company to render whatever service is
possible to mitigate the severity of the injury. The train that has
occasioned the harm must be stopped, and the injured person looked
after; and, when it seems necessary, removed to a place of safety, and
carefully nursed, until other relief can be brought to the disabled
person.”

The principal authority cited in support of this doctrine is Northern
Central Railway Co. _v._ The State, use of Price et al, 29 Md. 420, 96
Am. Dec. 545. The court in that case first held that there was evidence
enough to justify the jury in finding that the operatives of the train
were negligent in running it too fast over a road-crossing without
sounding the whistle, and that the number of brakemen was insufficient
to check its speed. Such negligence was held sufficient to uphold the
verdict, and would seem to be all that was necessary to be said. The
court, however, proceeded to state that, from whatever cause the
collision occurred, it was the duty of the servants of the company, when
the man was found on the pilot of the engine in a helpless and
insensible condition, to remove him, and to do it with proper regard to
his safety and the laws of humanity. In that case the injured person was
taken in charge by the servants of the railway company and, being
apparently dead, without notice to his family, or sending for a
physician to ascertain his condition, he was moved to defendant’s
warehouse, laid on a plank and locked up for the night. The next
morning, when the warehouse was opened, it was found that during the
night the man had revived from his stunned condition and moved some
paces from the spot where he had been laid, and was found in a stooping
posture, dead but still warm, having died from hemorrhage of the
arteries of one leg, which was crushed at and above the knee. It had
been proposed to place him in the defendant’s station-house, which was a
comfortable building, but the telegraph operator objected, and directed
him to be taken into the warehouse, a place used for the deposit of old
barrels and other rubbish.

The Maryland case does not support what is so broadly stated in Beach on
Contributory Negligence. It is cited by Judge Cooley, in his work on
Torts, in a note to a chapter devoted to the negligence of bailees (ch.
xx.), indicating that the learned author understood the reasoning of the
decision to apply where the duty began after the railway employees had
taken charge of the injured person.

After the trespasser on the track of a railway company has been injured
in collision with a train, and the servants of the company have assumed
to take charge of him, the duty arises to exercise such care in his
treatment as the circumstances will allow. We are unable, however, to
approve the doctrine that when the acts of a trespasser himself result
in his injury, where his own negligent conduct is alone the cause, those
in charge of the instrument which inflicted the hurt, being innocent of
wrong-doing, are nevertheless blamable in law if they neglect to
administer to the sufferings of him whose wounds we might say were
self-imposed. With the humane side of the question courts are not
concerned. It is the omission or negligent discharge of legal duties
only which come within the sphere of judicial cognizance. For
withholding relief from the suffering, for failing to respond to the
calls of worthy charity, or for faltering in the bestowment of brotherly
love on the unfortunate, penalties are found not in the laws of men, but
in that higher law, the violation of which is condemned by the voice of
conscience, whose sentence of punishment for the recreant act is swift
and sure. In the law of contracts it is now well understood that a
promise founded on a moral obligation will not be enforced in the
courts. Bishop states that some of the older authorities recognize a
moral obligation as valid, and says:—

“Such a doctrine, carried to its legitimate results, would release the
tribunals from the duty to administer the law of the land; and put, in
the place of law, the varying ideas of morals which the changing
incumbents of the bench might from time to time entertain.” (Bish. Cont.
§ 44.)

Ezelle’s injuries were inflicted, as the court below held, without the
fault of the yardmaster, engineer, or fireman in charge of the car and
locomotive. The railway company was no more responsible than it would
have been had the deceased been run down by the cars of another railroad
company on a track parallel with that of plaintiff in error. If no duty
was imposed on the servants of defendant below to take charge of, and
care for, the wounded man in such a case, how could a duty arise under
the circumstances of the case at bar? In Barrows on Negligence, page 4,
it is said:—

“The duty must be owing from the defendant to the plaintiff, otherwise
there can be no negligence, so far as the plaintiff is concerned; ...
and the duty must be owing to plaintiff in an individual capacity, and
not merely as one of the general public.

“This excludes from actionable negligence all failures to observe the
obligations imposed by charity, gratitude, generosity, and the kindred
virtues. The moral law would obligate an attempt to rescue a person in a
perilous position,—as a drowning child,—but the law of the land does not
require it, no matter how little personal risk it might involve,
provided that the person who declines to act is not responsible for the
peril.” (See, also, Kenney _v._ The Hannibal & St. Joseph Railroad
Company, 70 Mo. 252, 257.)

In the several cases cited in the brief of counsel for defendant in
error to sustain the judgment of the trial court, it will be found that
the negligence on which recoveries were based occurred after the time
when the person injured was in the custody and care of those who were at
fault in failing to give him proper treatment.

The judgment of the court below will be reversed, with directions to
enter judgment on the findings of the jury in favor of the railway
company.

All the justices concurring.[116]


                  HUNICKE _v._ MERAMEC QUARRY COMPANY
             SUPREME COURT OF MISSOURI, DECEMBER 19, 1914.
                _Reported in 262 Missouri Reports, 560._

WOODSON, P. J.... I do not understand counsel for plaintiff to make the
broad claim that, in the absence of the question of _emergency_,
presented in this case, it would have been the duty of the defendant to
have furnished medical or surgical treatment for the injured man, upon
the occasion mentioned; but I do understand counsel to contend, and
which I believe is the law, that when an employee is engaged in any
dangerous business for the master, and while in the performance of his
duties, as such, he is so badly injured that he is thereby rendered
physically or mentally incapable of procuring medical assistance for
himself, then that duty, as a matter of law, is devolved upon the
master, and that he must perform that duty with reasonable diligence and
in a reasonable manner, through the agency of such of his employees as
may be present at the time.

In other words, without trying to state the law in detail governing the
masters duties in all cases of this character, that duty is put in
operation whenever, under the facts and circumstances of the case, the
employee is thereby so injured that he or she is incapacitated from
caring for himself or herself, as the case may be.

The uncontradicted evidence in this case shows that the deceased was so
badly injured that he was physically incapacitated to care for himself
or to engage medical or surgical treatment; also, that the character of
his injuries was such as required immediate surgical attention, for it
was apparent to all present that his leg was frightfully crushed, and
that his life’s blood was freely flowing from his body. So obvious was
this that several of those present, at the time of the accident, tried
by their crude methods, to stop its flow. But the highest officer of the
company present, the superintendent, thought none of their remedies were
worthy of trial and told them their proposed treatment would do no good.
He then telephoned to Dr. Kirk, at Kimswick, the condition of the
injured man, Hunicke, and requested him to come to Wicks and treat the
injured man; but the doctor being previously engaged in a serious case,
could not leave it. The doctor, however, telephoned the superintendent
to bring the injured party to Kimswick, some two miles distant, and that
he would there treat him.

The evidence shows that both Wicks and Kimswick were on the railroad and
that a hand-car was present which could have been used in conveying
Hunicke from the former to the latter place for treatment.

For some reason not made clear, the superintendent declined to take the
injured man to Kimswick for treatment, but telephoned the facts of the
injury to the manager of the company at St. Louis, some twelve or
fourteen miles distant, who telephoned back to the superintendent to
place the injured man on the next train and send him to St. Louis. This
was done; and some three or four hours later, the train arrived in the
city; and upon the arrival of the train Hunicke was speedily taken to
the hospital where his limb was amputated; but in the meantime
practically all of the blood of his body had flowed therefrom, and he
died shortly thereafter.

In the statement of the case we have set out much of the evidence
tending to show the negligence of the defendant in not procuring
surgical treatment for Hunicke more promptly, and that he would not have
died had he received prompt treatment. That evidence tended to show that
Kimswick was only two miles distant from the place of injury and that
the injured man could have been taken there on a hand-car in a very
_few_ minutes, probably from fifteen to twenty, at the outside. Had this
been done, in all probability the flow of blood would have been stanched
several hours before it was finally stopped in the city of St. Louis.

It is true that there was some evidence which tended to show that such a
trip on a hand-car would have been rough and jolting, and thereby might
have aggravated the flow of the blood, but conceding that to be true, it
could not have caused more waste of blood than did the constant flow
during the hours that passed while he was waiting for the train and
being conveyed to the city of St. Louis thereon. And it seems to me that
common sense would teach us that a trip on a hand-car to Kimswick would
not have caused the blood to flow more freely than the trip on the train
to St. Louis, six or seven times as far, would have done.

But be that as it may, when we consider those facts in connection with
all the other facts and circumstances shown by the evidence, we have
reached the conclusion that this, as well as the question of negligence
in delaying the procurement of a surgeon, was for the jury, and that the
evidence introduced was sufficient to make out a _prima facie_ case for
the plaintiff.

In other words, we are of the opinion that the evidence tended to show
that the company was guilty of negligence in not using more diligence in
procuring medical and surgical treatment for this party; also that it
tended to show that said negligence was the proximate cause of his
death.

                  *       *       *       *       *

In my opinion there is no possibility of doubt but what the law is that,
whenever one person employs another to perform dangerous work, and while
performing that work he is so badly injured as to incapacitate him from
caring for himself, then the duty of providing medical treatment for him
is devolved upon the employer; and that duty in my opinion, grows out of
the fact that when we get down to the real facts in all such cases,
there is an unexpressed humane and natural understanding existing
between them to the effect that whenever any one in such a case is so
injured that he cannot care for himself, then the employer will furnish
him medical or surgical treatment as the case may be.

This is common knowledge. There is not an industrial institution in this
country, great or small, where that practice is not being carried on
to-day; and that has been the custom and usage among men from the dawn
of civilization down to the present day, and will continue to be
practised in the future, just so long as the human heart beats in
sympathy for the unfortunate, and desires to aid suffering humanity. The
same principle underlies all other avocations of life. Even armies while
engaged in actual warfare observe and obey this rule when possible. The
soldier who refuses to render surgical or medical aid to the victim of
his own sword, is eschewed by all decent men; while upon the other hand,
all who administer to the wants and necessities of the sick and wounded
are considered as God’s noblemen and as princes among men. So
universally true and deep-seated is this humane feeling among men, and
so universally recognized and practised among them, that it has become a
world-wide rule of moral conduct among men, brothers, friends and foes;
and it says to one and all, You must exercise all reasonable efforts and
means at hand to alleviate the pain and suffering and save the lives and
limbs of those who have been stricken in your presence. For the
violation of this rule of moral conduct there is no penalty attached
save the condemnation of God and the scorn of all good men and women.

But seeing the wisdom, goodness and justice of this moral law, the law
of the land laid its strong hand upon it, the same as it did upon many
other good and useful customs of England, and breathed into it a living
rule of legal conduct among men. It says unto all who employ labor that,
because of this universally practised custom of men to furnish medical
and surgical aid for those who are stricken in their presence, you must
furnish the employee with such services when he is so badly injured that
he is incapacitated from caring for himself.

This is but the application or extension of the common-law rule which
requires the master to furnish his servant with a safe place in which to
work, and safe instrumentalities with which to perform that labor.

That law grew out of the old customs and usages of the English people,
of furnishing their servants with a safe place in which to work and safe
instrumentalities with which to labor. So universally true was that
custom that the law read into all contracts of labor an implied promise
on the part of the master to furnish those safeguards to his servants.
There is no statutory or written law upon the subject. It is simply what
is called the unwritten or common law of England, which has been adopted
by statutes in this and many other States of the Union.

So in like manner into the universal custom of employers furnishing his
employees with medical aid when so badly injured that they could not
care for themselves, the common law, as in the cases of the safety
appliances before mentioned, breathed an implied agreement or duty on
the part of the former to furnish the latter medical or surgical aid
whenever he was so badly injured that he could not care for himself.

This law, like the one previously mentioned, has no statutory origin,
but has ripened into a law from wise and humane usages and customs that
are so old that the memory of man runneth not to the contrary, and will
continue so long as the conduct of man is prompted and governed by love
and humane sentiments.

As previously stated, I am firmly of the opinion that the petition
stated a good cause of action against the defendant, and that the
evidence was sufficient to make a case for the jury; and so believing, I
think the action of the trial court in granting a new trial to the
plaintiff for the first and second reasons assigned by counsel for
defendant, was not erroneous, but proper.[117]


                           DEPUE _v._ FLATAU
               SUPREME COURT, MINNESOTA, MARCH 15, 1907.
               _Reported in 100 Minnesota Reports, 299._

Action in the District Court for Watonwan County to recover $5000 for
personal injuries. The case was tried before Lorin Cray, J., who, at the
conclusion of plaintiff’s testimony, dismissed the action. From an order
denying a motion for a new trial, plaintiff appealed. Reversed.

BROWN, J. The facts in this somewhat unusual case are as follows:
Plaintiff was a cattle buyer, and accustomed to drive through the
country in the pursuit of his business, buying cattle, hides, and furs
from the farmers. On the evening of January 23, 1905, about five or 5.30
o’clock, after having been out a day or two in the country, he called at
the house of defendants, about seven miles from Madelia, where he
resided. His object was to inspect some cattle which Flatau, Sr., had
for sale, and if arrangements could be made to purchase the same. It was
dark at the time of his arrival, but he inspected the cattle in the
barn, and suggested to defendant that, being unable to determine their
value by reason of the darkness, he was not prepared to make an offer
for the cattle, and requested the privilege of remaining over night, to
the end that a bargain might be made understandingly in the morning. His
request was not granted. Plaintiff then bought some furs from other
members of defendants’ family, and Flatau, Sr., invited him to remain
for supper. Under this invitation plaintiff entered the house, paid for
the furs, and was given supper with the family. After the evening meal,
plaintiff and both defendants repaired to the sitting-room of the house,
and plaintiff made preparation to depart for his home. His team had not
been unhitched from the cutter, but was tied to a hitching post near the
house. The testimony from this point leaves the facts in some doubt.
Plaintiff testified that soon after reaching the sitting-room he was
taken with a fainting spell and fell to the floor. He remembers very
little of what occurred after that, though he does recall that, after
fainting, he again requested permission to remain at defendants’ over
night, and that his request was refused. Defendants both deny that this
request was made, and testified, when called for cross-examination on
the trial, that plaintiff put on his overshoes and buffalo coat unaided,
and that, while adjusting a shawl about his neck, he stumbled against a
partition between the dining-room and the sitting-room, but that he did
not fall to the floor. Defendant Flatau, Jr., assisted him in arranging
his shawl, and the evidence tends to show that he conducted him from the
house out of doors and assisted him into his cutter, adjusting the robes
about him and attending to other details preparatory to starting the
team on its journey. Though the evidence is somewhat in doubt as to the
cause of plaintiff’s condition while in defendants’ home, it is clear
that he was seriously ill and too weak to take care of himself. He was
in this condition when Flatau, Jr., assisted him into the cutter. He was
unable to hold the reins to guide his team, and young Flatau threw them
over his shoulders and started the team towards home, going a short
distance, as he testified, for the purpose of seeing that the horses
took the right road to Madelia. Plaintiff was found early next morning
by the roadside, about three quarters of a mile from defendants’ home,
nearly frozen to death. He had been taken with another fainting spell
soon after leaving defendants’ premises, and had fallen from his cutter,
where he remained the entire night. He was discovered by a passing
farmer, taken to his home, and revived. The result of his experience
necessitated the amputation of several of his fingers, and he was
otherwise physically injured and his health impaired. Plaintiff
thereafter brought this action against defendants, father and son, on
the theory that his injuries were occasioned solely by their negligent
and wrongful conduct in refusing him accommodations for the night, and,
knowing his weak physical condition, or at least having reasonable
grounds for knowing it, by reason of which he was unable to care for
himself, in sending him out unattended to make his way to Madelia the
best he could. At the conclusion of plaintiff’s case, the trial court
dismissed the action, on the ground that the evidence was insufficient
to justify a recovery. Plaintiff appealed from an order denying a new
trial.

Two questions are presented for consideration: (1) Whether, under the
facts stated, defendants owed any duty to plaintiff which they
negligently violated; and (2) whether the evidence is sufficient to take
the case to the jury upon the question whether defendants knew, or under
the circumstances disclosed ought to have known, of his weak physical
condition, and that it would endanger his life to send him home
unattended.

The case is an unusual one on its facts, and “all-four” precedents are
difficult to find in the books. In fact, after considerable research, we
have found no case whose facts are identical with those at bar. It is
insisted by defendants that they owed plaintiff no duty to entertain him
during the night in question, and were not guilty of any negligent
misconduct in refusing him accommodations, or in sending him home under
the circumstances disclosed. Reliance is had for support of this
contention upon the general rule as stated in note to Union Pacific _v._
Cappier, [66 Kan. 649, 72 Pac. 281] 69 L. R. A. 513, where it is said:
“Those duties which are dictated merely by good morals or by humane
considerations are not within the domain of the law. Feelings of
kindliness and sympathy may move the Good Samaritan to minister to the
needs of the sick and wounded at the roadside, but the law imposes no
such obligation; and suffering humanity has no legal complaint against
those who pass by on the other side.... Unless, therefore, the relation
existing between the sick, helpless, or injured and those who witness
their distress is such that the law imposes the duty of providing the
necessary relief, there is neither obligation to minister on the one
hand, nor cause for legal complaint on the other.” This is no doubt a
correct statement of the general rule applicable to the Good Samaritan,
but it by no means controls a case like that at bar.

The facts of this case bring it within the more comprehensive principle
that whenever a person is placed in such a position with regard to
another that it is obvious that, if he does not use due care in his own
conduct, he will cause injury to that person, the duty at once arises to
exercise care commensurate with the situation in which he thus finds
himself, and with which he is confronted, to avoid such danger; and a
negligent failure to perform the duty renders him liable for the
consequences of his neglect.

This principle applies to varied situations arising from non-contract
relations. It protects the trespasser from wanton or wilful injury. Its
extends to the licensee, and requires the exercise of reasonable care to
avoid an unnecessary injury to him. It imposes upon the owner of
premises, which he expressly or impliedly invites persons to visit,
whether for the transaction of business or otherwise, the obligation to
keep the same in reasonably safe condition for use, though it does not
embrace those sentimental or social duties often prompting human action.
21 Am. & Eng. Enc. (2d ed.) 471; Barrows, Neg. 3. Those entering the
premises of another by invitation are entitled to a higher degree of
care than those who are present by mere sufferance. Barrows, Neg. 304.
The rule stated is supported by a long list of authorities both in
England and this country, and is expressed in the familiar maxim, “_Sic
utere tuo_,” etc. They will be found collected in the works above cited,
and also in 1 Thompson, Neg. (2d ed.), § 694. It is thus stated in
Heaven _v._ Pender, L. R. 11 Q. B. Div. 503: “The proposition which
these recognized cases suggest, and which is, therefore, to be deduced
from them, is that, whenever one person is by circumstances placed in
such a position with regard to another that every one of ordinary sense
who did think would at once recognize that if he did not use ordinary
care and skill in his own conduct with regard to those circumstances he
would cause danger of injury to the person or property of the other, a
duty arises to use ordinary care and skill to avoid such danger.” It
applies with greater strictness to conduct towards persons under
disability, and imposes the obligation as a matter of law, not mere
sentiment, at least to refrain from any affirmative action that might
result in injury to them. A valuable note to Union Pacific _v._ Cappier,
69 L. R. A. 513, discusses at length the character of the duty and
obligation of those coming into relation with sick and disabled persons,
and numerous analogous cases are collected and analyzed.

In the case at bar defendants were under no contract obligation to
minister to plaintiff in his distress; but humanity demanded that they
do so, if they understood and appreciated his condition. And, though
those acts which humanity demands are not always legal obligations, the
rule to which we have adverted applied to the relation existing between
these parties on this occasion and protected plaintiff from acts at
their hands that would expose him to personal harm. He was not a
trespasser upon their premises, but, on the contrary, was there by the
express invitation of Flatau, Sr. He was taken suddenly ill while their
guest, and the law, as well as humanity, required that he be not exposed
in his helpless condition to the merciless elements.

The case, in its substantial facts, is not unlike that of Cincinnati
_v._ Marrs’ Adm’x, 27 Ky. Law, 388, 85 S. W. 188, 70 L. R. A. 291. In
that case it appears that one Marrs was found asleep in the yards of the
railway company in an intoxicated condition. The yard employees
discovered him, aroused him from his stupor, and ordered him off the
tracks. They knew that he was intoxicated, and that he had left a train
recently arrived at the station, and he appeared to them dazed and lost.
About forty minutes later, while the yard employees were engaged in
switching, they ran over him and killed him. He had again fallen asleep
on one of the tracks. The court held the railway company liable; that,
under the circumstances disclosed, it was the duty of the yard employees
to see that Marrs was safely out of the yards, or, in default of that,
to exercise ordinary care to avoid injuring him; and that it was
reasonable to require them to anticipate his probable continued presence
in the yards. The case at bar is much stronger, for here plaintiff was
not intoxicated, nor a trespasser, but, on the contrary, was in
defendants’ house as their guest, and was there taken suddenly ill in
their presence, and, if his physical condition was known and
appreciated, they must have known that to compel him to leave their home
unattended would expose him to serious danger.

We understand from the record that the learned trial court held in
harmony with the view of the law here expressed, but dismissed the
action for the reason, as stated in the memorandum denying a new trial,
that there was no evidence that either of the defendants knew, or in the
exercise of ordinary care should have known, plaintiff’s physical
condition, or that allowing him to proceed on his journey would expose
him to danger. Of course, to make the act of defendants a violation of
their duty in the premises, it should appear that they knew and
appreciated his serious condition. The evidence on this feature of the
case is not so clear as might be desired, but a majority of the court
are of opinion that it is sufficient to charge both defendants with
knowledge of plaintiff’s condition—at least, that the question should
have been submitted to the jury.

Defendant Flatau, Sr., testified that he was in the room at all times
while plaintiff was in the house and observed his demeanor, and, though
he denied that plaintiff fell to the floor in a faint or otherwise, yet
the fact that plaintiff was seriously ill cannot be questioned. Flatau,
Jr., conducted him to his cutter, assisted him in, observed that he was
incapable of holding the reins to guide his team, and for that reason
threw them over his shoulders. If defendants knew and appreciated his
condition, their act in sending him out to make his way to Madelia the
best he could was wrongful and rendered them liable in damages. We do
not wish to be understood as holding that defendants were under absolute
duty to entertain plaintiff during the night. Whether they could
conveniently do so does not appear. What they should or could have done
in the premises can only be determined from a full view of the evidence
disclosing their situation, and their facilities for communicating his
condition to his friends, or near neighbors, if any there were. All
these facts will enable the jury to determine whether, within the rules
of negligence applicable to the case, defendants neglected any duty they
owed plaintiff.

                                                  _Order reversed._[118]

  DUTCH PENAL CODE, ART. 450. One who, witnessing the danger of death
  with which another is suddenly threatened, neglects to give or furnish
  him such assistance as he can give or procure without reasonable fear
  of danger to himself or to others, is to be punished, if the death of
  the person in distress follows, by a detention of three months at most
  and an amende of three hundred florins at most.

  GERMAN CIVIL CODE, SECTION 826. One who wilfully brings about damage
  to another in a manner running counter to good morals is bound to make
  reparation to the other for the damage.

  STAMMLER, LEHRE VON DEM RICHTIGEN RECHTE, 489–490. “I am walking along
  the bank of a river,” says Liszt in his stimulating discussion of this
  subject, “and I see a man fall in the water and struggle with the
  waves. I am able to rescue him without any peril to myself; I neglect
  to do so although other help is not at hand and I foresee that he must
  drown. In my opinion, liability under section 826 cannot be denied.”
  [Liszt, Die Deliktsobligationen des B. G. B., 72.] Surely not.

  PLANCK, BÜRGERLICHES GESETZBUCH (3d ed.), II, 995 (§ 826, note _e_).
  The duty to make reparation for damage under section 826 may also be
  grounded upon an omission. But it is presupposed that the act which
  was omitted must be regarded, under the circumstances of the case, as
  commanded by good morals and that the omission took place with the
  purpose of bringing about injury to the other. If one holds fast to
  this, the consequences which result from the foregoing principle are
  not as doubtful as Liszt (p. 72) seems to assume.

  BENTHAM, COMPLETE WORKS (Bowring’s ed.) I, 164.

  There is simple corporal injury, when, without lawful cause, an
  individual, seeing another in danger, abstains from helping him, and
  the evil happens in consequence.

  Explanations:—_Abstains from helping him_.

  Every man is bound to assist those who have need of assistance, if he
  can do it without exposing himself to sensible inconvenience. This
  obligation is stronger in proportion as the danger is the greater for
  the one, and the trouble of preserving him the less for the other.
  Such would be the case of a man sleeping near the fire, and an
  individual seeing the clothes of the first catch fire, and doing
  nothing towards extinguishing them: the crime would be greater if he
  refrained from acting not simply from idleness, but from malice or
  some pecuniary interest.

  BENTHAM, PRINCIPLES OF MORALS AND LEGISLATION, chap. xix, sec. 1, Par.
  xix (Clarendon Press reprint, pp. 322–323).

  As to the rules of beneficence, these, as far as concerns matters of
  detail, must necessarily be abandoned in great measure to the
  jurisdiction of private ethics....

  The limits of the law on this head seem, however, to be capable of
  being extended a good deal farther than they seem ever to have been
  extended hitherto. In particular, in cases where the person is in
  danger, why should it not be made the duty of every man to save
  another from mischief, when it can be done without prejudicing
  himself, as well as to abstain from bringing it on him. This
  accordingly is the idea pursued in the body of the work.[119]

  BENTHAM, THEORY OF LEGISLATION, transl. by Hildreth (5th ed.), pp.
  65–66.

  As to beneficence, some distinctions are necessary. The law may be
  extended to general objects, such as the care of the poor; but, for
  details, it is necessary to depend upon private morality....

  However, instead of having done too much in this respect, legislators
  have not done enough. They ought to erect into an offence the refusal
  or the omission of a service of humanity when it would be easy to
  render it, and when some distinct ill clearly results from the
  refusal; such, for example, as abandoning a wounded man in a solitary
  road without seeking any assistance for him; not giving information to
  a man who is negligently meddling with poisons; not reaching out the
  hand to one who has fallen into a ditch from which he cannot extricate
  himself; in these, and other similar cases, could any fault be found
  with a punishment, exposing the delinquent to a certain degree of
  shame, or subjecting him to a pecuniary responsibility for the evil
  which he might have prevented?

  LIVINGSTON, DRAFT CODE OF CRIMES AND PUNISHMENTS FOR THE STATE OF
  LOUISIANA. Livingston, Complete Works on Criminal Jurisprudence, II,
  126–127.

  Article 484. Homicide by omission only, is committed by voluntarily
  permitting another to do an act that must, in the natural course of
  things, cause his death, without apprising him of his danger, if the
  act be involuntary, or endeavoring to prevent it if it be voluntary.
  He shall be presumed to have permitted it voluntarily who omits the
  necessary means of preventing the death, when he knows the danger, and
  can cause it to be avoided, without danger of personal injury or
  pecuniary loss. This rule may be illustrated by the examples put in
  the last preceding article: if the blind man is seen walking to the
  precipice by one who knows the danger, can easily apprise him of it,
  but does not; or if one who knows that a glass contains poison, sees
  him about to drink it, either by mistake or with intent to destroy
  himself, and makes no attempt to prevent him: in these cases the
  omission amounts to homicide.[120]

  MACAULAY, NOTES TO DRAFT OF INDIAN PENAL CODE. Penal Code Prepared by
  the Indian Law Commissioners.[121] Chapter xviii [page 76]. Of
  Offences Affecting the Human Body. Of Offences Affecting Life.

  294. Whoever does any act or omits what he is legally bound to do,
  with the intention of thereby causing, or with the knowledge that he
  is likely thereby to cause, the death of any person, and does by such
  act or omission cause the death of any person, is said to commit the
  offence of “voluntary culpable homicide.”

  NOTE M.[122] _On Offences Against the Body._ Notes to Draft of Penal
  Code, 53–56; Macaulay’s Complete Works (English ed., 1875), vol. VII,
  pp. 493–497; Morgan and McPherson, Indian Penal Code, 225, 226, notes.

  The first class of offences against the body consists of those
  offences which affect human life; and highest in this first class
  stand those offences which fall under the definition of voluntary
  culpable homicide.

  This important part of the law appears to us to require fuller
  explanation than almost any other.

  The first point to which we wish to call the attention of his Lordship
  in Council is the expression “omits what he is legally bound to do,”
  in the definition of voluntary culpable homicide. These words, or
  other words tantamount in effect, frequently recur in the Code. We
  think this the most convenient place for explaining the reason which
  has led us so often to employ them. For if that reason shall appear to
  be sufficient in cases in which human life is concerned, it will _a
  fortiori_ be sufficient in other cases.

  Early in the progress of the Code it became necessary for us to
  consider the following question: When acts are made punishable on the
  ground that those acts produce, or are intended to produce, or are
  known to be likely to produce certain evil effects, to what extent
  ought omissions which produce, which are intended to produce, or which
  are known to be likely to produce the same evil effects to be made
  punishable?

  Two things we take to be evident: first, that some of these omissions
  ought to be punished in exactly the same manner in which acts are
  punished: secondly, that all these omissions ought not to be punished.
  It will hardly be disputed that a jailer who voluntarily causes the
  death of a prisoner by omitting to supply that prisoner with food, or
  a nurse who voluntarily causes the death of an infant intrusted to her
  care by omitting to take it out of a tub of water into which it has
  fallen, ought to be treated as guilty of murder. On the other hand, it
  will hardly be maintained that a man should be punished as a murderer
  because he omitted to relieve a beggar, even though there might be the
  clearest proof that the death of the beggar was the result of the
  omission, and that the man who omitted to give the alms knew that the
  death of the beggar was likely to be the effect of the omission. It
  will hardly be maintained that a surgeon ought to be treated as a
  murderer for refusing to go from Calcutta to Meerut to perform an
  operation, although it should be absolutely certain that this surgeon
  was the only person in India who could perform it, and that if it were
  not performed the person who required it would die. It is difficult to
  say whether a Penal Code which should put no omissions on the same
  footing with acts, or a Penal Code which should put all omissions on
  the same footing with acts would produce consequences more absurd and
  revolting. There is no country in which either of these principles is
  adopted. Indeed, it is hard to conceive how, if either were adopted,
  society could be held together.

  It is plain, therefore, that a middle course must be taken. But it is
  not easy to determine what that middle course ought to be. The
  absurdity of the two extremes is obvious. But there are innumerable
  intermediate points; and wherever the line of demarcation may be drawn
  it will, we fear, include some cases which we might wish to exempt,
  and will exempt some which we might wish to include.

  Mr. Livingston’s Code provides that a person shall be considered as
  guilty of homicide who omits to save life, which he could save
  “without personal danger or pecuniary loss.” This rule appears to us
  to be open to serious objection. There may be extreme inconvenience
  without the smallest personal danger, or the smallest risk of
  pecuniary loss; as in the case which we lately put of a surgeon
  summoned from Calcutta to Meerut to perform an operation. He may be
  offered such a fee that he would be a gainer by going. He may have no
  ground to apprehend that he should run any greater personal risk by
  journeying to the Upper Provinces than by continuing to reside in
  Bengal. But he is about to proceed to Europe immediately, or he
  expects some members of his family by the next ship, and wishes to be
  at the presidency to receive them. He, therefore, refuses to go.
  Surely, he ought not, for so refusing, to be treated as a murderer. It
  would be somewhat inconsistent to punish one man for not staying three
  months in India to save the life of another, and to leave wholly
  unpunished a man who, enjoying ample wealth, should refuse to disburse
  an anna to save the life of another. Again, it appears to us that it
  may be fit to punish a person as a murderer for causing death by
  omitting an act which cannot be performed without personal danger or
  pecuniary loss. A parent may be unable to procure food for an infant
  without money. Yet the parent, if he has the means, is bound to
  furnish the infant with food, and if by omitting to do so he
  voluntarily causes its death, he may with propriety be treated as a
  murderer. A nurse hired to attend a person suffering from an
  infectious disease cannot perform her duty without running some risk
  of infection. Yet if she deserts the sick person, and thus voluntarily
  causes his death, we should be disposed to treat her as a murderer.

  We pronounce with confidence, therefore, that the line ought not to be
  drawn where Mr. Livingston has drawn it. But it is with great
  diffidence that we bring forward our own proposition. It is open to
  objections: cases may be put in which it will operate too severely,
  and cases in which it will operate too leniently; but we are unable to
  devise a better.

  What we propose is this, that where acts are made punishable on the
  ground that they have caused, or have been intended to cause, or have
  been known to be likely to cause a certain evil effect, omissions
  which have caused, which have been intended to cause, or which have
  been known to be likely to cause the same effect shall be punishable
  in the same manner; provided that such omissions were, on other
  grounds, illegal. An omission is illegal (see clause 28) if it be an
  offence, if it be a breach of some direction of law, or if it be such
  a wrong as would be a good ground for a civil action.

  We cannot defend this rule better than by giving a few illustrations
  of the way in which it will operate. A omits to give Z food, and by
  that omission voluntarily causes Z’s death. Is this murder? Under our
  rule it is murder if A was Z’s jailer, directed by the law to furnish
  Z with food. It is murder if Z was the infant child of A, and had
  therefore a legal right to sustenance, which right a civil court would
  enforce against A. It is murder if Z was a bedridden invalid, and A a
  nurse hired to feed Z. It is murder if A was detaining Z in unlawful
  confinement, and had thus contracted (see clause 338) a legal
  obligation to furnish Z, during the continuance of the confinement,
  with necessaries. It is not murder if Z is a beggar who has no other
  claim on A than that of humanity.

  A omits to tell Z that a river is swollen so high that Z cannot safely
  attempt to ford it, and by this omission voluntarily causes Z’s death.
  This is murder if A is a peon stationed by authority to warn
  travellers from attempting to ford the river. It is murder if A is a
  guide who had contracted to conduct Z. It is not murder if A is a
  person on whom Z has no other claim than that of humanity.

  A savage dog fastens on Z; A omits to call off the dog, knowing that
  if the dog be not called off it is likely that Z will be killed. Z is
  killed. This is murder in A, if the dog belonged to A, inasmuch as his
  omission to take proper order with the dog is illegal (clause 273).
  But if A be a mere passer-by it is not murder.

  We are sensible that in some of the cases which we have put, our rule
  may appear too lenient. But we do not think that it can be made more
  severe, without disturbing the whole order of society. It is true that
  the man who, having abundance of wealth, suffers a fellow creature to
  die of hunger at his feet, is a bad man,—a worse man, probably, than
  many of those for whom we have provided very severe punishment. But we
  are unable to see where, if we make such a man legally punishable, we
  can draw the line. If the rich man who refuses to save a beggar’s life
  at the cost of a little copper is a murderer, is the poor man just one
  degree above beggary also to be a murderer if he omits to invite the
  beggar to partake his hard-earned rice? Again, if the rich man is a
  murderer for refusing to save the beggar’s life at the cost of a
  little copper, is he also to be a murderer if he refuses to save the
  beggar’s life at the cost of a thousand rupees? Suppose A to be fully
  convinced that nothing can save Z’s life, unless Z leave Bengal and
  reside a year at the Cape, is A, however wealthy he may be, to be
  punished as a murderer because he will not, at his own expense, send Z
  to the Cape? Surely not. Yet it will be difficult to say on what
  principle we can punish A for not spending an anna to save Z’s life,
  and leave him unpunished for not spending a thousand rupees to save
  Z’s life. The distinction between a legal and an illegal omission is
  perfectly plain and intelligible. But the distinction between a large
  and a small sum of money is very far from being so; not to say that a
  sum which is small to one man is large to another.

  The same argument holds good in the case of the ford. It is true that
  none but a very depraved man would suffer another to be drowned when
  he might prevent it by a word. But if we punish such a man, where are
  we to stop? How much exertion are we to require? Is a person to be a
  murderer if he does not go fifty yards through the sun of Bengal at
  noon in May in order to caution a traveller against a swollen river?
  Is he to be a murderer if he does not go a hundred yards?—if he does
  not go a mile?—if he does not go ten? What is the precise amount of
  trouble and inconvenience which he is to endure? The distinction
  between the guide who is bound to conduct the traveller as safely as
  he can, and a mere stranger, is a clear distinction. But the
  distinction between a stranger who will not give a halloo to save a
  man’s life, and a stranger who will not run a mile to save a man’s
  life, is very far from being equally clear.

  It is, indeed, most highly desirable that men should not merely
  abstain from doing harm to their neighbours, but should render active
  services to their neighbours. In general, however, the penal law must
  content itself with keeping men from doing positive harm, and must
  leave to public opinion, and to the teachers of morality and religion,
  the office of furnishing men with motives for doing positive good. It
  is evident that to attempt to punish men by law for not rendering to
  others all the service which it is their duty to render to others
  would be preposterous. We must grant impunity to the vast majority of
  those omissions which a benevolent morality would pronounce
  reprehensible, and must content ourselves with punishing such
  omissions only when they are distinguished from the rest by some
  circumstance which marks them out as peculiarly fit objects of penal
  legislation. Now, no circumstance appears to us so well fitted to be
  the mark as the circumstance which we have selected. It will generally
  be found in the most atrocious cases of omission; it will scarcely
  ever be found in a venial case of omission; and it is more clear and
  certain than any other mark that has occurred to us. That there are
  objections to the line which we propose to draw, we have admitted. But
  there are objections to every line which can be drawn, and some line
  must be drawn.


                               SECTION VI
                   LIABILITY OF OCCUPIERS OF PREMISES


                 MAYNARD _v._ BOSTON AND MAINE RAILROAD
       SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER 4, 1874.
             _Reported in 115 Massachusetts Reports, 458._

Tort for the killing of a horse on a railroad by a locomotive engine.

Upon the trial, the plaintiff admitted that the horse must be considered
as trespassing upon the railroad, but contended and offered evidence
tending to show that by an exercise of proper care the injury to the
horse might have been avoided. The defendants offered evidence to
control this, and tending to show that they did all they reasonably
could do to stop their train before striking the horse. There was no
evidence of any wanton misconduct on their part.

The counsel for the defendants contended and asked the presiding judge
to rule, that the defendants would not be liable, unless the plaintiff
proved a reckless and wanton misconduct of their employees in the
management of the train when the horse was killed. The presiding judge
declined so to rule; but did rule that though the horse was trespassing
upon the defendants’ land at the time, the managers of the train could
not carelessly run over him, but were bound to use reasonable care to
avoid injuring him, and that if the jury found that by the exercise of
reasonable care they might have avoided injuring the horse, they would
be liable. The jury found for the plaintiff, and the defendants alleged
exceptions.[123]

GRAY, C. J. If the horse had been rightfully upon the defendants’ land,
it would have been their duty to exercise reasonable care to avoid
injuring the horse. But it being admitted by the plaintiff that his
horse was trespassing upon the railroad, they did not owe him that duty,
and were not liable to him for anything short of a reckless and wanton
misconduct of those employed in the management of their train. The
defendants were therefore entitled to the instruction which they
requested. Tonawanda Railroad _v._ Munger, 5 Denio, 255; S. C. 4 Comst.
349; Vandegrift _v._ Rediker, 2 Zab. 185; Railroad Co. _v._ Skinner, 19
Penn. St. 298; Tower _v._ Providence & Worcester Railroad, 2 R. I. 404;
Cincinnati, Hamilton & Dayton Railroad _v._ Waterson, 4 Ohio St. 424;
Louisville & Frankfort Railroad _v._ Ballard, 2 Met. (Ky.) 177.

The instruction given to the jury held the defendants to the same
obligation to the plaintiff as if his horse had been rightfully on their
land; and made their paramount duty to the public of running the train
with proper speed and safety, and their use of the land set apart and
fitted for the performance of that duty, subordinate to the care of
private interests in property which was upon their track without right.

Some passages in the opinion in Eames _v._ Salem & Lowell Railroad, 98
Mass. 560, 563, were relied on by the plaintiff’s counsel at the
argument, and apparently formed the basis of the rulings of the learned
judge in the Court below. But in that case there was no evidence of any
negligence or misconduct in the management of the train, and an exact
definition of the defendants’ liability, by reason of such negligence or
misconduct, was not required. In the present case such a definition was
requested by the defendants in appropriate terms, and was refused, and
for that refusal their

                                    _Exceptions must be sustained._[124]


                           HERRICK _v._ WIXOM
              SUPREME COURT, MICHIGAN, SEPTEMBER 27, 1899.
                _Reported in 121 Michigan Reports, 384._

Trespass on the Case for personal injuries.

Defendant was the possessor and manager of a tent show or circus. On the
afternoon of an exhibition plaintiff went inside the tent and took a
seat. There was a conflict of testimony as to whether plaintiff was
invited into the tent by an authorized agent of defendant, or whether he
entered without any invitation or other justification. A feature of the
entertainment consisted in the ignition and explosion of a giant
firecracker, attached to a pipe set in an upright position in one of the
show rings. Plaintiff sat thirty or forty feet from the place where the
cracker was exploded. At the explosion, part of the firecracker flew and
struck plaintiff in the eye, whereby he lost the sight of his eye.

The judge left to the jury the question whether it was negligent in
defendant to explode this firecracker in the inside of the tent and in
the presence of the audience.

Then he gave, among others, the following instruction:—

“Now you must further find, in order that the plaintiff recover, that
the plaintiff was in the tent, where he was injured, by the invitation
of some person having authority to allow him to go in there. If he was a
mere trespasser, who forced his way in, then the defendant owed him no
duty that would enable him to recover under the declaration and proofs
in this case.”...

Verdict of no cause of action. Judgment for defendant. Plaintiff brought
error.[125]

MONTGOMERY, J. [After stating the case.] We think this instruction
faulty, in so far as it was intended to preclude recovery in any event
if the plaintiff was found to be a trespasser. It is true that a
trespasser who suffers an injury because of a dangerous condition of
premises is without remedy. But, where a trespasser is discovered upon
the premises by the owner or occupant, he is not beyond the pale of the
law, and any negligence resulting in injury will render the person
guilty of negligence liable to respond in damages. Beach, Contrib. Neg.
§ 50; Whart. Neg. § 346; Marble _v._ Ross, 124 Mass. 44; Houston, etc.,
R. Co. _v._ Sympkins, 54 Tex. 615 (38 Am. Rep. 632); Brown _v._ Lynn, 31
Pa. St. 510 (72 Am. Dec. 768); Needham _v._ Railroad Co., 37 Cal. 409;
Davies _v._ Mann, 10 Mees. & W. 546; 1 Shear. & R. Neg. § 99. In this
case the negligent act of the defendant’s servant was committed after
the audience was made up. The presence of plaintiff was known, and the
danger to him from a negligent act was also known. The question of
whether a dangerous experiment should be attempted in his presence, or
whether an experiment should be conducted with due care and regard to
his safety, cannot be made to depend upon whether he had forced himself
into the tent. Every instinct of humanity revolts at such a suggestion.

For this error the judgment will be reversed, and a new trial
ordered.[126]


               CINCINNATI & ZANESVILLE R. CO. _v._ SMITH
               SUPREME COURT, OHIO, DECEMBER TERM, 1871.
               _Reported in 22 Ohio State Reports, 227._

Error to the Court of Common Pleas of Fayette County, reserved in the
District Court.[127]

The plaintiff below, Richard Smith, sued the defendant below, the
Cincinnati & Zanesville Railroad Company, to recover the value of two
horses alleged to have been killed through the negligence of the
servants of the defendant in operating one of its trains. The inclosure
of the plaintiff adjoined the railroad of the defendant; and from this
inclosure, on the night on which the horses were killed, they escaped on
to the railroad.

The Court, among other things, charged the jury as follows:—

The defendant’s servants in this case were not bound to use
extraordinary care or extraordinary means to save the plaintiff’s
horses. But they were bound to use what, in that peculiar business, is
ordinary care and diligence; and if the loss of the horses was the
result of a want of that ordinary care and diligence, the defendant is
liable.

The defendant had the right to the free and unobstructed use of its
railroad track. And the paramount duty of the employees is the
protection of the passengers and property in the train, and the train
itself.

But this being their paramount duty, they are bound to use ordinary care
and diligence, so as not unnecessarily to injure the property of others.

Under the circumstances of the case, could and would reasonably prudent
men, skilled in that kind of business, keeping in view as their
paramount duty the protection and safety of the train, its passengers,
and the property on and about it intrusted to their care, in the
exercise of ordinary care have stopped the train and saved the horses?
If so, and the defendant’s servants did not so act, the defendant is
liable in this case; otherwise the defendant is not liable.

In considering the paramount duty of the employees in the proper
management of the train for the safety of passengers and property of its
train, you have a right to determine whether they have other duties to
perform. It is claimed the engineer had other duties than watching the
track to perform, which were necessary for the safety of the passengers
and property of the train,—such as gauging his steam, watching
time-table, regulating his supply of water, examining his machinery,
watching for the station-signal, etc. If such were the case, he had a
lawful right to perform these duties, and was not bound to neglect them
to save the plaintiff’s horses, nor bound to watch the track while
performing these duties. They were only bound, under the circumstances
of the case, to use ordinary care and diligence to save the horses,—the
safety of the passengers and property of the train being their paramount
duty; and if the jury find from the evidence that the persons in charge
of the engine were attending to the duties of the train approaching the
station at the time of the accident, these duties were paramount to
watching the track for trespassing animals; and if the horses were not,
on that account, discovered in time to save them by using ordinary means
to stop the train, the defendant is not liable.

It is claimed by the defendant’s counsel that off the crossings of the
railroad the servants of the railroad company have a right to presume
that there are no trespassers on the roadway; that they are not bound to
look out for trespassers except for the safety of passengers or property
in charge. It is also claimed that inasmuch as the road at the place
where the plaintiff’s horses got on the track and were killed was
fenced, on that account the defendant’s servants in charge of the train
were not bound to look out for trespassing stock. Upon this question I
only can charge you this: That if the railroad was fenced at the place
where the horses got on and were killed, and this was known to the
defendant’s employees, you have a right to look to that circumstance as
reflecting upon and in determining whether the employees exercised
ordinary care in the management of the train. But if they might, in the
exercise of ordinary care, have discovered the animals, although they
were trespassers on the roadway, other than at a crossing, in time to
have prevented their destruction, it was their duty to do so; and if
from such want of ordinary care they were not discovered in time to
prevent their destruction, the defendant is liable for their loss to the
plaintiff.[128]

WHITE, J. The whole charge is set out in the bill of exceptions.
Considering its several parts in connection, and giving to the whole a
fair construction, we deem it necessary only to notice two particulars
in which it is objected to.

These are: 1. Whether the fact that the horses were trespassing on the
track excused the servants of the defendant from the exercise of
ordinary care; and, 2. Whether that fact, and the additional one that
the road was fenced, excused the engineer, as respects the owner of
stray animals, from looking ahead to see whether such animals were on
the track or not.

In regard to the first of these particulars, it is contended on behalf
of the railroad company that, as the horses were trespassing on the
railroad, the company was exempt from using ordinary care to save them,
and that it was only liable for what is called gross negligence.

The Court instructed the jury that the defendant had the right to the
free and unobstructed use of its railroad track, and that the paramount
duty of its employees was the protection of the passengers and property
in the train, and the train itself. But this being their paramount duty,
they were bound to use ordinary care and diligence so as not
unnecessarily to injure the property of others.

We think the charge stated the law correctly. We see no good reason, in
principle, why a party, so far as may be consistent with the full
enjoyment of his own rights, ought not to use ordinary care so as not
unnecessarily to injure the property of others.

It is true, the rule contended for by the counsel of the plaintiff in
error is sustained by a number of authorities. But the later and better
considered cases are to the contrary. Illinois Central R. R. Co. _v._
Middlesworth, 46 Ill. 494; Bemis _v._ Conn., &c. R. R., 42 Vt. 375;
Isbell _v._ N. Y. R. R. Co., 27 Conn. 393; Redfield’s American Railway
Cases, 355, 356.

The rule contended for has never been adopted in this State. It is,
moreover, as respects railroad companies, inconsistent with our statute
law on the subject. S. & C. 331.

The facts in the case of the C. H. & D. R. R. Co. _v._ Waterson & Kirk,
4 Ohio St. 424, cited and relied upon by the counsel of the plaintiff in
error, were different from those in the case now before us, and we do
not regard the rule there laid down as to the liability of the company
in that case as applicable to this.

From what has been said of the charge in the first particular named, it
would seem to follow that it is unobjectionable as respects the second.
If it was the duty of the servants of the company, so far as was
consistent with their other and paramount duties, to use ordinary care
to avoid injuring animals on the track, they were, of course, bound to
adopt the ordinary precautions to discover danger, as well as to avoid
its consequences after it became known.

The fact that the road was fenced at the place of collision with the
horses, was a circumstance to be considered in connection with the other
circumstances of the case in determining whether the engineer was guilty
of negligence in not looking ahead and discovering the danger in time to
avoid it. The fact that the road was fenced rendered it less probable
that wandering animals would be on the track; but it cannot be said that
the engineer, as a matter of law, by reason of the fences, was wholly
excused from keeping a lookout ahead of the train.

If the servants of the company in charge of the train, having due regard
to their duties for the safety of the persons and property in their
charge, could, by the exercise of ordinary care, have seen and saved the
horses, we think they were bound to have done so. Bemis _v._ Conn., &c.
R. R., _supra_, 381; Louis. & Nash. R. R. Co. _v._ Wainscott, 3 Bush,
149.[129]

                                                    _Judgment affirmed._


                 SHEEHAN _v._ ST. PAUL & DULUTH R. CO.
  UNITED STATES CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT, OCTOBER 16,
                                 1896.
                  _Reported in 46 U. S. Appeals, 498._

SEAMAN, J.[130] The plaintiff at the time of his injury was neither in
the relation of passenger nor of one in a public crossing or place in
which the public were licensed to travel, but upon the undisputed facts
was a mere intruder on the tracks of the defendant, technically a
trespasser; and this record excludes any of the elements of implied
license or invitation to such use which have given rise to much
discussion and diversity of views in the courts. Therefore the inquiry
is here squarely presented, What is the duty which a railway company
owes to a trespasser on its tracks, and how and when does the duty
arise? The decisions upon this subject uniformly recognize that the
trespasser cannot be treated as an outlaw; and at the least that, if
wantonly injured in the operation of the railroad, the company is
answerable in damages. Clearly, then, an obligation is placed upon the
company to exercise some degree of care when the danger becomes
apparent. Is it, however, bound to foresee or assume that rational
beings will thus enter as trespassers in a place of danger, and to
exercise in the running of its trains the constant vigilance in view of
that probability which is imposed for public crossings? There are cases
which would seem to hold this strict requirement (see note, 1 Thompson
on Negligence (1880), 448; East Tennessee and Georgia Railroad Co. _v._
St. John, 5 Sneed, 524); but by the great preponderance of authority, in
this country and in England, the more reasonable doctrine is pronounced,
in effect, as follows: That the railroad company has the right to a free
track in such places; that it is not bound to any act or service in
anticipation of trespassers thereon; and that the trespasser who
ventures to enter upon a track for any purpose of his own assumes all
risks of the conditions which may be found there, including the
operation of engines and cars. Wright _v._ Boston and Maine Railroad,
129 Mass. 440; Philadelphia and Reading Railroad Company _v._ Hummell,
44 Penn. St. 375. The decision by this court, in Cleveland, Cincinnati,
Chicago and St. Louis Railway Company _v._ Philips’ Administrator (1),
24 U. S. Appeals, 489, adopts the view held in this line of cases,
citing the authorities of which repetition here is unnecessary. The same
doctrine prevails in Minnesota, where the injury in question arose.
Johnson _v._ Truesdale, 46 Minnesota, 345; Studley _v._ St. Paul &
Duluth R. Co., 48 Minnesota, 249. In the latter case it was held that
there could be no recovery “unless the engineer saw the girl in time to
avoid the accident, and then was guilty of such gross negligence in not
trying to avoid it as to evince a reckless disregard of human life;” and
the opinion gives this further exposition of the rule: “The defendant’s
engineer was under no obligation to anticipate a trespasser, or to look
out for persons walking upon the track; but, upon discovering
plaintiff’s intestate across the cattle-guard, as he claims she was when
he noticed that she was in danger, it became the engineer’s duty to use
proper care to avoid running her down. If he failed to exercise proper
care, he would necessarily be grossly negligent and evince a reckless
disregard of human life.” So in Wisconsin, in Anderson _v._ Chicago, St.
Paul, Minneapolis & Omaha Railway Company, 87 Wisconsin, 195, 204, it is
said: “The use of a railroad is exclusively for its owners or those
acting under its authority, and the company is not bound to the exercise
of any active duty of care or diligence towards mere trespassers upon
its track, to keep a lookout to discover or protect them from injury,
except that, when discovered in a position of danger or peril, it is its
duty to use all reasonable and proper effort to save and protect them
from the probable consequences of their indiscretion or negligence.”

The well-established and just rule which holds the railroad company to
the exercise of constant and strict care against injury through its
means is applicable only to the relation on which it is founded, of an
existing duty or obligation. This active or positive duty arises in
favor of the public at a street crossing or other place at which it is
presumable that persons or teams may be met. It is not material, so far
as concerns this inquiry, whether the place is one for which a lawful
right of passage exists, as it is the fact of notice to the company
arising out of its existence and the probability of its use which
imposes the positive duty to exercise care; the requirement of an
extreme degree of care being superadded because of the hazards which
attend the operations of the company. The case of a trespasser on the
track in a place not open to travel is clearly distinguishable in the
absence of this notice to the company. There is no constructive notice
upon which to base the obligation of constant lookout for his presence
there, and no actual notice up to the moment the trainmen have
discovered the fact of his peril. As that peril comes wholly from his
unauthorized act and temerity, the risk and all positive duty of care
for his safety rest with the trespasser. The obligation of the company
and its operatives is not then preëxisting, but arises at the moment of
discovery, and is negative in its nature,—a duty which is common to
human conduct to make all reasonable effort to avert injury to others
from means which can be controlled.

This is the issue presented here. It excludes all inquiry respecting the
character of the roadbed, cattle-guard, locomotive, brake appliances or
other means of operation, or of the speed or manner of running the train
up to the moment of notice, because no breach of positive duty is
involved. It is confined to the evidence relating to the discovery by
the engineer and fireman of the plaintiff’s peril and to the efforts
then made to avert the injury; and out of that to ascertain whether, in
any view which may justly be taken, it is shown that these men or the
engineer in disregard of the duty which then confronted them neglected
to employ with reasonable promptness the means at hand for stopping the
train.[131]


                  BRETT, M. R., IN HEAVEN _v._ PENDER
           (1883) _11 Queen’s Bench Division, 503, 506, 507._

BRETT, M. R.... The action is in form and substance an action for
negligence. That the stage was, through want of attention of the
defendant’s servants, supplied in a state unsafe for use is not denied.
But want of attention amounting to a want of ordinary care is not a good
cause of action, although injury ensue from such want, unless the person
charged with such want of ordinary care had a duty to the person
complaining to use ordinary care in respect of the matter called in
question. Actionable negligence consists in the neglect of the use of
ordinary care or skill towards a person to whom the defendant owes the
duty of observing ordinary care and skill, by which neglect the
plaintiff, without contributory negligence on his part, has suffered
injury to his person or property. The question in this case is whether
the defendant owed such a duty to the plaintiff.


            MITCHELL, J., IN AKERS _v._ CHICAGO, &c. R. CO.
                    (1894) _58 Minnesota, 540, 544._

MITCHELL, J. Actionable negligence is the failure to discharge a legal
duty to the person injured. If there is no duty, there is no negligence.
Even if a defendant owes a duty to some one else, but does not owe it to
the person injured, no action will lie. The duty must be due to the
person injured. These principles are elementary, and are equally
applicable, whether the duty is imposed by positive statute or is
founded on general common-law principles.[132]


                       LARY _v._ CLEVELAND R. CO.
              SUPREME COURT, INDIANA, NOVEMBER TERM, 1881.
                 _Reported in 78 Indiana Reports, 323._

Lary sued the railroad company for damage alleged to have been sustained
by him, through the negligent failure of the company to repair a
building standing on its grounds, and formerly used by it as a freight
house. Answer, a general denial. Upon the trial, the plaintiff
introduced his evidence; the defendant demurred to it, and the plaintiff
joined in demurrer. The Court sustained the demurrer, and the plaintiff
excepted.

The facts which the plaintiff’s evidence tended to prove are
substantially as follows:—

The railroad company owned half an acre of land between the railroad
track and a highway. On this land was a building erected several years
before for a freight house. It was no longer used as the general freight
house, though still used for storing the company’s wood. A part of the
roof of the building was off, and had been so for some months. The
plaintiff, who was twenty years of age, was in the habit of passing the
building almost daily, and had noticed that part of the roof was off. In
a rain storm, the plaintiff went under the platform of the old freight
house, and played there with other young people. A piece of the roof was
torn off by the wind. The plaintiff, being frightened at the noise, ran
out, saw the piece of the roof in the air, and ran towards the highway;
but before or as he reached the edge of it, this fragment of the roof
fell upon him.[133]

MORRIS, C. [After stating the case.] Upon the facts thus stated, can the
appellant maintain this action?

There is no testimony tending to show that the appellant was at the
freight house by the invitation of the appellee, nor that he was there
for the purpose of transacting any business with the appellee. The
appellant intruded upon the premises of the appellee, and is not,
therefore, entitled to that protection which one, expressly or by
implication, invited into the house or place of business of another, is
entitled to. The appellant was a trespasser, and as such he entered upon
the appellee’s premises, taking the risks of all the mere omissions of
the appellee as to the condition of the grounds and buildings thus
invaded without leave. We do not wish to be understood as holding or
implying that if, on the part of the appellee, there had been any act
done implying a willingness to inflict the injury upon the appellant, it
would not be liable. But we think there is nothing in the evidence from
which such an inference can be reasonably drawn. The building could be
seen by all; its condition was open to the inspection of every one; it
had been abandoned as a place for the transaction of public business; it
was in a state of palpable and visible decay, and no one was authorized,
impliedly or otherwise, to go into or under it. Under such
circumstances, the law says to him who intrudes into such a place, that
he must proceed at his own risk.

In the case of The Pittsburgh, &c. R. W. Co. _v._ Bingham, 29 Ohio St.
364, the question was: “Is a railroad company bound to exercise ordinary
care and skill in the erection, structure, or maintenance of its station
house or houses, as to persons who enter or are at the same, not on any
business with the company or its agents, nor on any business connected
with the operation of its road; but are there without objection by the
company, and therefore by its mere sufferance or permission?” The Court
answered this question in the negative.

In the case of Hounsell _v._ Smyth, 7 C. B. N. S. 731, the plaintiff
fell into a quarry, left open and unguarded on the unenclosed lands of
the defendant, over which the public were permitted to travel; it was
held that the owner was under no legal obligation to fence or guard the
excavation unless it was so near the public road as to render travel
thereon dangerous. That the person so travelling over such waste lands
must take the permission with its concomitant conditions, and, it may
be, perils. Hardcastle _v._ The South Yorkshire R. W. Co., 4 H. & N. 67;
Sweeny _v._ Old Colony, &c. R. R. Co., 10 Allen, 368; Knight _v._ Abert,
6 Barr, 472.

After reviewing the above and other cases, Judge Boynton, in the case of
The Pittsburgh, &c. R. W. Co. _v._ Bingham, _supra_, says:—

“The principle underlying the cases above cited recognizes the right of
the owner of real property to the exclusive use and enjoyment of the
same without liability to others for injuries occasioned by its unsafe
condition, where the person receiving the injury was not in or near the
place of danger by lawful right; and where such owner assumed no
responsibility for his safety by inviting him there, without giving him
notice of the existence or imminence of the peril to be avoided.”

In the case from which we have quoted, the intestate of the plaintiff
was at the defendant’s station house, not on any business with it, but
merely to pass away his time, when, by a severe and sudden blast of
wind, a portion of the roof of the station house was blown off the
building and against the intestate, with such force as to kill him. The
case, in its circumstances, was not unlike the one before us. Nicholson
_v._ Erie R. W. Co., 41 N. Y. 525; Murray _v._ McLean, 57 Ill. 378;
Durham _v._ Musselman, 2 Blackf. 96 (18 Am. Dec. 133).

In the case of Sweeny _v._ Old Colony, &c. R. R. Co., 10 Allen, 368, the
Court say:—

“A licensee, who enters on premises by permission only, without any
enticement, allurement, or inducement being held out to him by the owner
or occupant, cannot recover damages for injuries caused by obstructions
or pitfalls. He goes there at his own risk, and enjoys the license
subject to its concomitant perils.” Carleton _v._ Franconia Iron and
Steel Co., 99 Mass. 216; Harris _v._ Stevens, 31 Vt. 79, 90; Wood _v._
Leadbitter, 13 M. & W. 838.

The evidence in this case brings it, we think, within the principles
settled by the above cases.

The appellant contends that the evidence shows that the appellee was
guilty of gross negligence in not repairing its freight house, and that
such negligence renders it liable, though he entered upon its premises
without invitation or license, as a mere intruder, and was, while such
intruder, injured; and, in support of this proposition, we are referred
to the following cases: Lafayette, &c. R. R. Co. _v._ Adams, 26 Ind. 76;
Indianapolis, &c. R. R. Co. _v._ McClure, 26 Ind. 370; Gray _v._ Harris,
107 Mass. 492; Isabel _v._ Hannibal, &c. R. R. Co., 60 Mo. 475.

In the first of the above cases, the Court held that, where the
negligence of the company was so gross as to imply a disregard of
consequences or a willingness to inflict the injury, it was liable,
though the party injured was not free from fault. In the second case, it
was held that a railroad company, not required to fence its road, would
not be liable for animals killed on its road, unless guilty of gross
negligence. The phrase “gross negligence,” as used in these cases, means
something more than the mere omission of duty; it meant, as shown by the
evidence in the cases, reckless and aggressive conduct on the part of
the company’s servants. “Something more than negligence, however gross,
must be shown, to enable a party to recover for an injury, when he has
been guilty of contributory negligence.” The Pennsylvania Co. _v._
Sinclair, 62 Ind. 301. There was, in the cases referred to in 26 Ind.,
something more than negligence. As in the case of The Indianapolis, &c.
R. W. Co. _v._ McBrown, 46 Ind. 229, where the animal was driven through
a deep cut, eighty rods long, into and upon a trestle work of the
company, there was aggressive malfeasance. In the Massachusetts case,
the Court held that a party building a dam across a stream must provide
against unusual floods. We do not think these cases applicable to the
one before us.

There could be no negligence on the part of the appellee, of which the
appellant can be heard to complain, unless at the time he received the
injury, the appellee was under some obligation or duty to him to repair
its freight house. “Actionable negligence exists only where the one
whose act causes or occasions the injury owes to the injured person a
duty, created either by contract or by operation of law, which he has
failed to discharge.” Pittsburgh, &c. R. W. Co. _v._ Bingham, _supra_;
Burdeck _v._ Cheadle, 26 Ohio St. 393; Town of Salem _v._ Goller, 76
Ind. 291. We have shown that the appellee owed the appellant no such
duty.

The judgment below should be affirmed.

PER CURIAM. It is ordered, upon the foregoing opinion, that the judgment
below be affirmed, at the costs of the appellant.[134]


                   BUCH _v._ AMORY MANUFACTURING CO.
             SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1897.
              _Reported in 69 New Hampshire Reports, 257._

Case. Trial by jury and verdict for the plaintiff. March 30, 1886, the
plaintiff, then eight years of age and unable to speak or understand
English, was injured by the machinery in operation in the defendants’
mill. The evidence tended to show that the plaintiff’s brother, who was
thirteen years of age, was employed as a back-boy in the mule-spinning
room, and that at his request the plaintiff went into the room for the
purpose of learning the work of a back-boy. The elder brother had no
authority to request or permit the plaintiff to go into the mill or to
instruct him, unless it could be inferred from the fact testified to by
him that “he saw other boys taking their brothers to learn, as he
understood from their motions.” The plaintiff was in the mill for a day
and a half until the accident, openly assisting more or less in the work
of the back-boys. He testified that he was directed by a person not the
overseer of the room, whom he saw “bossing” the other boys, to pick up
some bobbins and put some waste in a box. There was evidence tending to
show that Fulton, the overseer, who was in charge of and hired the
back-boys and other operatives in the room, passed in the alleys near
the plaintiff, and that he was well acquainted with his help. He
testified that he had no knowledge of the plaintiff’s presence in the
room until about two hours before the accident, when, aware that the boy
was not an employee, he directed him to go out, and thinking he might
not understand English, took him to an operative who spoke the
plaintiff’s language, whom he told to send the plaintiff out. The
plaintiff testified that Fulton spoke to him and, as he understood,
directed him to remove his vest, but that he did not understand he was
ordered to leave. There was no evidence except Fulton’s that the order
was communicated to the plaintiff or understood by him. There was no
evidence or claim that the machinery was improperly constructed or
operated, or that it was out of repair. The plaintiff’s hand was caught
in a gearing which the back-boys were instructed to avoid, but there was
no evidence that the plaintiff was given any instruction or warning
whatever. There was evidence tending to prove that boys under thirteen
years of age were not employed in the room, and that the place and
machinery were dangerous for a child of the plaintiff’s age. Subject to
exception, a motion that a verdict be directed for the defendants was
denied.

CARPENTER, C. J. On the evidence, the jury could not properly find that
the plaintiff was upon the premises of the defendants with their consent
or permission. Although there was evidence tending to show that other
back-boys had taken their brothers into the room for the purpose of
instructing them in the business, there was no sufficient evidence that
the fact that they did so was known to the defendants, and there was
evidence that on the first occasion brought to their knowledge they
objected. Upon this state of the evidence, a license by the
defendants—whether material or immaterial—for the plaintiff’s presence
in the room could not legitimately be inferred. The plaintiff was a
trespasser.

The defendant’s machinery was in perfect order and properly managed.
They were conducting their lawful business in a lawful way and in the
usual and ordinary manner. During the plaintiff’s presence they made no
change in the operation of their works or in their method of doing
business. No immediate or active intervention on their part caused the
injury. It resulted from the joint operation of the plaintiff’s conduct
and the ordinary and usual condition of the premises. Under these
circumstances, an adult in full possession of his faculties, or an
infant capable of exercising the measure of care necessary to protect
himself from the dangers of the situation, whether he was on the
premises by permission or as a trespasser, could not recover.

The plaintiff was an infant of eight years. The particular circumstances
of the accident—how or in what manner it happened that the plaintiff
caught his hand in the gearing—are not disclosed by the case. It does
not appear that any evidence was offered tending to show that he was
incapable of knowing the danger from putting his hand in contact with
the gearing, or of exercising a measure of care sufficient to avoid the
danger. Such an incapacity cannot be presumed. Stone _v._ Railroad, 115
N. Y. 104, 109–111; Hayes _v._ Norcross, 162 Mass. 546, 548; Mulligan
_v._ Curtis, 100 Mass. 512, 514; Cosgrove _v._ Ogden, 49 N. Y. 255, 258;
Kunz _v._ Troy, 104 N. Y. 344, 351; Lovett _v._ Railroad, 9 Allen, 557,
563.

An infant is bound to use the reason he possesses and to exercise the
degree of care and caution of which he is capable. If the plaintiff
could by the due exercise of his intellectual and physical powers have
avoided the injury, he is no more entitled to recover than an adult
would be under the same circumstances. The burden was upon him, and the
case might be disposed of upon the ground that he adduced no evidence
tending to show that he had not sufficient reason and discretion to
appreciate the particular risk of injury that he incurred and to avoid
it. But it may be that evidence tending to show the plaintiff’s
incapacity was adduced, and that the case is silent on the subject
because this particular question was not made by the defendants.

Assuming, then, that the plaintiff was incapable either of appreciating
the danger or of exercising the care necessary to avoid it, is he, upon
the facts stated, entitled to recover? He was a trespasser in a place
dangerous to children of his age. In the conduct of their business and
management of their machinery the defendants were without fault. The
only negligence charged upon or attributed to them is that, inasmuch as
they could not make the plaintiff understand a command to leave the
premises and ought to have known that they could not, they did not
forcibly eject him.

Actionable negligence is the neglect of a legal duty. The defendants are
not liable unless they owed to the plaintiff a legal duty which they
neglected to perform. With purely moral obligations the law does not
deal. For example, the priest and Levite who passed by on the other side
were not, it is supposed, liable at law for the continued suffering of
the man who fell among thieves, which they might and morally ought to
have prevented or relieved. Suppose A, standing close by a railroad,
sees a two-year-old babe on the track and a car approaching. He can
easily rescue the child with entire safety to himself, and the instincts
of humanity require him to do so. If he does not, he may, perhaps,
justly be styled a ruthless savage and a moral monster; but he is not
liable in damages for the child’s injury, or indictable under the
statute for its death. P. S., c. 278, s. 8.

“In dealing with cases which involve injuries to children, courts ...
have sometimes strangely confounded legal obligation with sentiments
that are independent of law.” Indianapolis _v._ Emmelman, 108 Ind. 530.
“It is important to bear in mind, in actions for injuries to children, a
very simple and fundamental fact, which in this class of cases is
sometimes strangely lost sight of, viz., that no action arises without a
breach of duty.” 2 Thomp. Neg. 1183, note 3. “No action will lie against
a spiteful man, who, seeing another running into danger, merely omits to
warn him. To bring the case within the category of actionable negligence
some wrongful act must be shown, or a breach of some positive duty;
otherwise, a man who allows strangers to roam over his property would be
held answerable for not protecting them against any danger they might
encounter whilst using the license.” Gautret _v._ Egerton, L. R. 2 C. P.
371, 375.

What duties do the owners owe to a trespasser upon their premises? They
may eject him, using such force and such only as is necessary for the
purpose. They are bound to abstain from any other or further intentional
or negligent acts of personal violence,—bound to inflict upon him by
means of their own active intervention no injury which by due care they
can avoid. They are not bound to warn him against hidden or secret
dangers arising from the condition of the premises (Redigan _v._
Railroad, 155 Mass. 44, 47, 48), or to protect him against any injury
that may arise from his own acts or those of other persons. In short, if
they do nothing, let him entirely alone, in no manner interfere with
him, he can have no cause of action against them for any injury that he
may receive. On the contrary, he is liable to them for any damage that
he by his unlawful meddling may cause them or their property. What
greater or other legal obligation was cast on these defendants by the
circumstance that the plaintiff was (as is assumed) an irresponsible
infant?

If landowners are not bound to warn an adult trespasser of hidden
dangers,—dangers which he by ordinary care cannot discover and,
therefore, cannot avoid,—on what ground can it be claimed that they must
warn an infant of open and visible dangers which he is unable to
appreciate? No legal distinction is perceived between the duties of the
owners in one case and the other. The situation of the adult in front of
secret dangers which by no degree of care he can discover, and that of
the infant incapable of comprehending danger, is in a legal aspect
exactly the same. There is no apparent reason for holding that any
greater or other duty rests upon the owners in one case than in the
other.

There is a wide difference—a broad gulf—both in reason and in law,
between causing and preventing an injury; between doing by negligence or
otherwise a wrong to one’s neighbor, and preventing him from injuring
himself; between protecting him against injury by another and guarding
him from injury that may accrue to him from the condition of the
premises which he has unlawfully invaded. The duty to do no wrong is a
legal duty. The duty to protect against wrong is, generally speaking and
excepting certain intimate relations in the nature of a trust, a moral
obligation only, not recognized or enforced by law. Is a spectator
liable if he sees an intelligent man or an unintelligent infant running
into danger and does not warn or forcibly restrain him? What difference
does it make whether the danger is on another’s land, or upon his own,
in case the man or infant is not there by his express or implied
invitation? If A sees an eight-year-old boy beginning to climb into his
garden over a wall stuck with spikes and does not warn him or drive him
off, is he liable in damages if the boy meets with injury from the
spikes? Degg _v._ Railway, 1 H. & N. 773, 777. I see my neighbor’s
two-year-old babe in dangerous proximity to the machinery of his
windmill in his yard, and easily might, but do not, rescue him. I am not
liable in damages to the child for his injuries, nor, if the child is
killed, punishable for manslaughter by the common law or under the
statute (P. S., c. 278, s. 8), because the child and I are strangers,
and I am under no legal duty to protect him. Now suppose I see the same
child trespassing in my own yard and meddling in like manner with the
dangerous machinery of my own windmill. What additional obligation is
cast upon me by reason of the child’s trespass? The mere fact that the
child is unable to take care of himself does not impose on me the legal
duty of protecting him in the one case more than in the other. Upon what
principle of law can an infant by coming unlawfully upon my premises
impose upon me the legal duty of a guardian? None has been suggested,
and we know of none.

An infant, no matter of how tender years, is liable in law for his
trespasses. 1 Ch. Pl. 86; 2 Kent, 241; Cool. Torts, 103; Poll. Torts,
46; 2 Add. Torts, 1126, 1153; 10 Am. & Eng. Enc. Law, 668, et seq.;
Humphrey _v._ Douglass, 10 Vt. 71; School District _v._ Bragdon, 23 N.
H. 507; Eaton _v._ Hill, 50 N. H. 235; Bullock _v._ Babcock, 3 Wend.
391; Williams _v._ Hays, 143 N. Y. 442, 446–451; Conklin _v._ Thompson,
29 Barb. 218; Neal _v._ Gillett, 23 Conn. 437; Huchting _v._ Engel, 17
Wis. 237. If, then, the defendants’ machinery was injured by the
plaintiff’s act in putting his hand in the gearing, he is liable to them
for the damages in an action of trespass and to nominal damages for the
wrongful entry. It would be no answer to such an action that the
defendants might by force have prevented the trespass. It is impossible
to hold that while the plaintiff is liable to the defendants in
trespass, they are liable to him in case for neglecting to prevent the
act which caused the injury both to him and them. Cases of enticement,
allurement, or invitation of infants to their injury, or setting traps
for them, and cases relating to the sufficiency of public ways, or to
the exposure upon them of machinery attractive and dangerous to children
have no application here.

Danger from machinery in motion in the ordinary course of business
cannot be distinguished from that arising from a well, pit, open
scuttle, or other stationary object. The movement of the works is a part
of the regular and normal condition of the premises. Sullivan _v._
Railroad, 156 Mass. 378; Holbrook _v._ Aldrich, 168 Mass. 15; Rodgers
_v._ Lees, 140 Pa. St. 475. The law no more compels the owners to shut
down their gates and stop their business for the protection of a
trespasser than it requires them to maintain a railing about an open
scuttle or to fence in their machinery for the same purpose. Benson _v._
Company, 77 Md. 535; Mergenthaler _v._ Kirby, 79 Md. 182. There was no
evidence tending to show that the defendants neglected to perform any
legal duty to the plaintiff. McGuiness _v._ Butler, 159 Mass. 233, 236,
238; Grindley _v._ McKechnie, 163 Mass. 494; Holbrook _v._ Aldrich, 168
Mass. 15, 17, and cases cited.

                  _Verdict set aside: judgment for the defendants._[135]

PARSONS, J., did not sit: the others concurred.


             KEFFE _v._ MILWAUKEE AND ST. PAUL RAILWAY CO.
              SUPREME COURT, MINNESOTA, JANUARY 11, 1875.
                _Reported in 21 Minnesota Reports, 207._

The plaintiff, an infant, brought this action in the Court of Common
Pleas for Ramsey County to recover damages for injuries sustained while
playing upon a turn-table of defendant. The circumstances under which
plaintiff was injured are thus stated in the complaint: “That in
connection with said railroad” [of defendant] “defendant, before and up
to the month of October, 1867, used and operated a certain turn-table,
located on the lands of said defendant in said town of Northfield, which
said turn-table was so constructed and arranged as to be easily turned
around and made to revolve in a horizontal direction.”

After minutely describing the turn-table, the complaint proceeds: “That
said turn-table was situated in a public place, near to a passenger
depot of the defendant, and within 120 feet from the residence and home
of plaintiff. That said turn-table was unfastened and in no way
protected, fenced, guarded, or enclosed, to prevent it from being turned
around at the pleasure of small children, although the same could at all
times be readily locked and securely fastened.

“That said turn-table ... was in the possession and under the control of
defendant, and not necessary in operating said railroad and it was the
duty of said defendant to keep said turn-table fastened or in some way
protected, so that children could not readily have access thereto and
revolve the same. That the same was not so protected or fastened, and
that said turn-table, when left unfastened, was very attractive to young
children, and that while the same was being moved by children, and at
all times when left unfastened, it was dangerous to persons upon or near
it.

“That defendant had notice of all the aforesaid facts before and at the
time the injury herein named occurred to the plaintiff.

“That plaintiff, on September 11, 1867, was a child of tender years,
without judgment or discretion, he being at that date seven years old,
and that in consequence of the carelessness, negligence, and improper
conduct of said defendant, in not locking, enclosing, or otherwise
fastening said turn-table, and by the negligence, carelessness, and
improper conduct of said defendant, its agents, and servants, in
allowing said turn-table to be and remain unfastened, insecure, and
improperly put in motion, it was, at the date last aforesaid, revolved
by other children, over whom the parents and guardians of plaintiff had
no control, and without their knowledge, and, while being so revolved,
the plaintiff, being on said turn-table, had his right leg caught near
the knee, between the surface of said turn-table and said abutment or
wall, and between the iron rail on said turn-table and the iron rail on
said abutment or wall, and said leg was thereby so bruised, broken,
mangled, and fractured, as to render amputation necessary.”

The complaint further alleges that the injury was caused by defendant’s
negligence, and without any fault or negligence on the part of the
plaintiff, or his parents or guardians, etc.

The defendant having answered the complaint, and the action having been
called for trial, the defendant moved for judgment on the pleadings. The
motion was granted by Hall, J., and judgment entered accordingly, from
which plaintiff appealed.

_Bigelow, Flandrau & Clark_, for respondent, relied on the opinion of
Hall, J., and the cases therein cited.[136]

YOUNG, J. In the elaborate opinion of the Court below, which formed the
basis of the argument for the defendant in this Court, the case is
treated as if the plaintiff was a mere trespasser, whose tender years
and childish instincts were no excuse for the commission of the
trespass, and who had no more right than any other trespasser to require
the defendant to exercise care to protect him from receiving injury
while upon its turn-table. But we are of opinion that, upon the facts
stated in the complaint, the plaintiff occupied a very different
position from that of a mere voluntary trespasser upon the defendant’s
property, and it is therefore unnecessary to consider whether the
proposition advanced by the defendant’s counsel, viz., that a landowner
owes no duty of care to trespassers, is not too broad a statement of a
rule which is true in many instances.

To treat the plaintiff as a voluntary trespasser is to ignore the
averments of the complaint, that the turn-table, which was situate in a
public (by which we understand an open, frequented) place, was, when
left unfastened, very attractive, and, when put in motion by them, was
dangerous to young children, by whom it could be easily put in motion,
and many of whom were in the habit of going upon it to play. The
turn-table, being thus attractive, presented to the natural instincts of
young children a strong temptation; and such children, following, as
they must be expected to follow, those natural instincts, were thus
allured into a danger whose nature and extent they, being without
judgment or discretion, could neither apprehend nor appreciate, and
against which they could not protect themselves. The difference between
the plaintiff’s position and that of a voluntary trespasser, capable of
using care, consists in this, that the plaintiff was induced to come
upon the defendant’s turn-table by the defendant’s own conduct, and
that, as to him, the turn-table was a hidden danger,—a trap.

While it is held that a mere licensee “must take the permission with its
concomitant conditions,—it may be perils,” Hounsell _v._ Smyth, 7 C. B.
(N. S.) 731; Bolch _v._ Smith, 7 H. & N. 836, yet even such licensee has
a right to require that the owner of the land shall not knowingly and
carelessly put concealed dangers in his way. Bolch _v._ Smith, _per_
Channell and Wilde, BB.; Corby _v._ Hill, 4 C. B. (N. S.) 556, _per_
Willes, J.

And where one goes upon the land of another, not by mere license, but by
invitation from the owner, the latter owes him a larger duty. “The
general rule or principle applicable to this class of cases is that an
owner or occupant is bound to keep his premises in a safe and suitable
condition for those who come upon and pass over them, using due care, if
he has held out any inducement, invitation, or allurement, either
express or implied, by which they have been led to enter thereon.” _Per_
Bigelow, C. J., in Sweeny _v._ Old Colony & Newport R. Co., 10 Allen,
368, reviewing many cases. And see Indermaur _v._ Dames, L. R. 1 C. P.
274; L. R. 2 C. P. 311.

Now, what an express invitation would be to an adult, the temptation of
an attractive plaything is to a child of tender years. If the defendant
had left this turn-table unfastened for the purpose of attracting young
children to play upon it, knowing the danger into which it was thus
alluring them, it certainly would be no defence to an action by the
plaintiff, who had been attracted upon the turn-table and injured, to
say that the plaintiff was a trespasser, and that his childish instincts
were no excuse for his trespass. In Townsend _v._ Wathen, 9 East, 277,
it was held to be unlawful for a man to tempt even his neighbor’s dogs
into danger, by setting traps on his own land, baited with
strong-scented meat, by which the dogs were allured to come upon his
land and into his traps. In that case, Lord Ellenborough asks, “What is
the difference between drawing the animal into the trap by his natural
instinct, which he cannot resist, and putting him there by manual
force?” And Grose, J. says “A man must not set traps of this dangerous
description in a situation to invite his neighbor’s dogs, and, as it
were, to compel them by their instinct to come into the traps.”

It is true that the defendant did not leave the turn-table unfastened
for the purpose of injuring young children; and if the defendant had no
reason to believe that the unfastened turn-table was likely to attract
and to injure young children, then the defendant would not be bound to
use care to protect from injury the children that it had no good reason
to suppose were in any danger. But the complaint states that the
defendant knew that the turn-table, when left unfastened, was easily
revolved; that, when left unfastened, it was very attractive, and when
put in motion by them, dangerous, to young children; and knew also that
many children were in the habit of going upon it to play. The defendant
therefore knew that by leaving this turn-table unfastened and unguarded,
it was not merely inviting young children to come upon the turn-table,
but was holding out an allurement, which, acting upon the natural
instincts by which such children are controlled, drew them by those
instincts into a hidden danger; and having thus knowingly allured them
into a place of danger, without their fault (for it cannot blame them
for not resisting the temptation it has set before them), it was bound
to use care to protect them from the danger into which they were thus
led, and from which they could not be expected to protect themselves.

We agree with the defendant’s counsel that a railroad company is not
required to make its land a safe playground for children. It has the
same right to maintain and use its turn-table that any landowner has to
use his property. It is not an insurer of the lives or limbs of young
children who play upon its premises. We merely decide that when it sets
before young children a temptation which it has reason to believe will
lead them into danger, it must use ordinary care to protect them from
harm. What would be proper care in any case must, in general, be a
question for the jury, upon all the circumstances of the case.

The position we have taken is fully sustained by the following cases,
some of which go much farther in imposing upon the owner of dangerous
articles the duty of using care to protect from injury children who may
be tempted to play near or meddle with them, than it is necessary to go
in this case. Lynch _v._ Nurdin, 1 Q. B. 29; Birge _v._ Gardiner, 19
Conn. 507; Whirley _v._ Whiteman, 1 Head, 610.

It is true that, in the cases cited, the principal question discussed is
not whether the defendant owed the plaintiff the duty of care, but
whether the defendant was absolved from liability for breach of duty by
reason of the fact that the plaintiff was a trespasser, who, by his own
act, contributed to the injury; and the distinction is not sharply drawn
between the effect of the plaintiff’s trespass, as a bar to his right to
require care, and the plaintiff’s contributory negligence, as a bar to
his right to recover for the defendant’s failure to exercise such care
as it was his duty to use. But as a young child, whom the defendant
knowingly tempts to come upon his land, if anything more than a
technical trespasser, is led into the commission of the trespass by the
defendant himself, and thus occupies a position widely different from
that of an ordinary trespasser, the fact that the Courts, in the cases
referred to, assumed, instead of proving, that the defendant owed to a
young child, under such circumstances, a duty he would not owe to an
ordinary trespasser, for whose trespass he was not in any way
responsible, does not weaken the authority of those cases. And in
Railroad Co. _v._ Stout, 17 Wall. 657 (a case in all respects similar to
the present), the distinction insisted on by counsel is taken by Mr.
Justice Hunt, and the circumstance that the plaintiff was in some sense
a trespasser is held not to exempt the defendant from the duty of care.
In the charge of the learned circuit judge at the trial of the last
named case (reported under the title of Stout _v._ Sioux City & Pacific
R. Co., 2 Dillon, 294), the elements which must concur to render the
defendant liable, in a case like the present, are clearly stated.

In Hughes _v._ Macfie, 2 Hurlst. & Coltm. 744, and Mangan _v._ Atterton,
L. R. 1 Exch. 239, cited by defendant’s counsel, there was nothing to
show that the defendants knew or had reason to apprehend that the cellar
lid in the one case, or the crushing machine in the other, would be
likely to attract young children into danger. It must be conceded that
Hughes _v._ Macfie is not easily to be reconciled with Birge _v._
Gardiner, and that Mangan _v._ Atterton seems to conflict with Lynch
_v._ Nurdin; but whether correctly decided or otherwise, they do not
necessarily conflict with our decision in this case.

Much reliance is placed by defendant on Phila. & Reading R. Co. _v._
Hummell, 44 Penn. St. 375 and Gillis _v._ Penn. R. Co., 59 Penn. St.
129. In the first of these cases, the plaintiff, a young child, was
injured by coming upon the track while the cars were in motion. The only
negligence charged upon the defendant was the omission to give any
signal at or after the starting of the train. If the plaintiff had been
crossing the track, through one of the openings which the company had
suffered the people in the neighborhood to make in the train while
standing on the track, and the cars had then been run together upon him,
without any warning, the case would more nearly resemble the present;
but the facts, as they appear, show that the company used abundant care,
and that it had no reason to suppose that the plaintiff was exposed to
danger; and the decision is put upon the latter ground, although Strong,
J., delivering the opinion of the Court, uses language which lends some
support to the defendant’s contention in this case. Gillis _v._ Penn. R.
Co. was properly decided, on the ground that the company did nothing to
invite the plaintiff upon the platform, by the fall of which he was
injured, and that the platform was strong enough to bear the weight of
any crowd of people which the company might reasonably expect would come
upon it. Neither of these cases is an authority against, while a later
case in the same court, Kay _v._ Penn. R. Co., 65 Penn. St. 269, tends
strongly to support, the plaintiff’s right of action in this case; and
the recent case of Pittsburg, A. & M. Passenger R. Co. _v._ Caldwell, 74
Penn. St. 421, points in the same direction.

It was not urged upon the argument that the plaintiff was guilty of
contributory negligence, and we have assumed that the plaintiff
exercised, as he was bound to do, such reasonable care as a child of his
age and understanding was capable of using, and that there was no
negligence on the part of his parents or guardians, contributing to his
injury.

                                               _Judgment reversed._[137]


                      FROST _v._ EASTERN RAILROAD
             SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1886.
              _Reported in 64 New Hampshire Reports, 220._

Case, for personal injuries from the alleged negligence of the
defendants in not properly guarding and securing a turn-table. The
plaintiff, who sues by his father and next friend, was seven years old
when the accident occurred, June 23, 1877, and the action was commenced
June 7, 1884. Plea, the general issue and statute of limitations. A
motion for a nonsuit was denied, and the defendants excepted. Verdict
for the plaintiff. The facts are sufficiently stated in the opinion.

CLARK, J. The action is not barred by the statute of limitations. “Any
infant, married woman, or insane person may bring any personal actions
within two years after such disability is removed.” G. L., c. 221, s. 7.

As a general rule, in cases where a disability exists when the right of
action accrues, the statute does not run during the continuance of the
disability, and it has not commenced to run against the plaintiff.
Pierce _v._ Dustin, 24 N. H. 417; Little _v._ Downing, 37 N. H. 356. It
is said that the plaintiff’s next friend was under no disability, that
he could have brought the action at any time within six years after the
right of action accrued, and therefore the statute should apply to this
case. It is an answer to this suggestion that it is the infant’s action,
and the failure of the next friend to bring suit within six years is no
bar to the plaintiff’s right of action. Wood Lim. of Act. 476.

The motion for a nonsuit raises the question whether there was evidence
upon which the jury could properly find a verdict for the plaintiff.
Paine _v._ Railway, 58 N. H. 611. The ground of the action is, that the
defendants were guilty of negligence in maintaining a turn-table
insecurely guarded, which, being wrongfully set in motion by older boys,
caused an injury to the plaintiff, who was at that time seven years old,
and was attracted to the turn-table by the noise of the older and larger
boys turning and playing upon it. The turn-table was situated on the
defendants’ land, about sixty feet from the public street, in a cut with
high, steep embankments on each side; and the land on each side was
private property and fenced. It was fastened by a toggle, which
prevented its being set in motion unless the toggle was drawn by a
lever, to which was attached a switch padlock, which being locked
prevented the lever from being used unless the staple was drawn. At the
time of the accident the turn-table was fastened by the toggle, but it
was a controverted point whether the padlock was then locked. When
secured by the toggle and not locked with the padlock, the turn-table
could not be set in motion by boys of the age and strength of the
plaintiff.

Upon these facts we think the action cannot be maintained. The alleged
negligence complained of relates to the construction and condition of
the turn-table, and it is not claimed that the defendants were guilty of
any active misconduct towards the plaintiff. The right of a landowner in
the use of his own land is not limited or qualified like the enjoyment
of a right or privilege in which others have an interest, as the use of
a street for highway purposes under the general law, or for other
purposes under special license (Moynihan _v._ Whidden, 143 Mass. 287),
where care must be taken not to infringe upon the lawful rights of
others. At the time of his injury the plaintiff was using the
defendants’ premises as a playground without right. The turn-table was
required in operating the defendants’ railroad. It was located on its
own land so far removed from the highway as not to interfere with the
convenience and safety of the public travel, and it was not a trap set
for the purpose of injuring trespassers. Aldrich _v._ Wright, 53 N. H.
404. Under these circumstances, the defendants owed no duty to the
plaintiff; and there can be no negligence or breach of duty where there
is no act or service which the party is bound to perform or fulfil. A
landowner is not required to take active measures to insure the safety
of intruders, nor is he liable for an injury resulting from the lawful
use of his premises to one entering upon them without right. A
trespasser ordinarily assumes all risk of danger from the condition of
the premises; and to recover for an injury happening to him he must show
that it was wantonly inflicted, or that the owner or occupant, being
present and acting, might have prevented the injury by the exercise of
reasonable care after discovering the danger. Clark _v._ Manchester, 62
N. H. 577; State _v._ Railroad, 52 N. H. 528; Sweeny _v._ Railroad, 10
Allen, 368; Morrissey _v._ Railroad, 126 Mass. 377; Severy _v._
Nickerson, 120 Mass. 306; Morgan _v._ Hallowell, 57 Me. 375; Pierce _v._
Whitcomb, 48 Vt. 127; McAlpin _v._ Powell, 70 N. Y. 126; St. L., V. & T.
H. R. R. Co. _v._ Bell, 81 Ill. 76; Gavin _v._ Chicago, 97 Ill. 66; Wood
_v._ School District, 44 Iowa, 27; Gramlich _v._ Wurst, 86 Pa. St. 74;
Cauley _v._ P. C., & St. Louis Railway Co., 95 Pa. St. 398; Gillespie
_v._ McGowan, 100 Pa. St. 144; Mangan _v._ Atterton, L. R. 1 Ex. 239.
The maxim that a man must use his property so as not to incommode his
neighbor, only applies to neighbors who do not interfere with it or
enter upon it. Knight _v._ Abert, 6 Pa. St. 472. To hold the owner
liable for consequential damages happening to trespassers from the
lawful and beneficial use of his own land would be an unreasonable
restriction of his enjoyment of it.

We are not prepared to adopt the doctrine of Railroad Co. _v._ Stout, 17
Wall. 657, and cases following it, that the owner of machinery or other
property attractive to children is liable for injuries happening to
children wrongfully interfering with it on his own premises. The owner
is not an insurer of the safety of infant trespassers. One having in his
possession agricultural or mechanical tools is not responsible for
injuries caused to trespassers by careless handling, nor is the owner of
a fruit-tree bound to cut it down or enclose it, or to exercise care in
securing the staple and lock with which his ladder is fastened, for the
protection of trespassing boys who may be attracted by the fruit.
Neither is the owner or occupant of premises upon which there is a
natural or artificial pond, or a blueberry pasture, legally required to
exercise care in securing his gates and bars to guard against accidents
to straying and trespassing children. The owner is under no duty to a
mere trespasser to keep his premises safe; and the fact that the
trespasser is an infant cannot have the effect to raise a duty where
none otherwise exists. “The supposed duty has regard to the public at
large, and cannot well exist as to one portion of the public and not to
another, under the same circumstances. In this respect children, women,
and men are upon the same footing. In cases where certain duties exist,
infants may require greater care than adults, or a different kind of
care; but precautionary measures having for their object the protection
of the public must as a rule have reference to all classes alike.” Nolan
_v._ N. Y. N. H. & H. Railroad Co., 53 Conn. 461.

There being no evidence to charge the defendants with negligence, the
motion for a nonsuit should have been granted.

                                            _Exceptions sustained._[138]


          COOKE _v._ MIDLAND GREAT WESTERN RAILWAY OF IRELAND
                 IN THE HOUSE OF LORDS, MARCH 1, 1909.
                _Reported in [1909] Appeal Cases, 229._

The appellant by his father brought an action against the respondents
for an injury sustained on the company’s land in Meath under the
circumstances stated in the head-note, the details of which are fully
discussed in the judgments in this House. At the trial before Lord
O’Brien, C. J., the jury found a verdict for the plaintiff for £550, and
judgment was entered accordingly. The jury found that the fence was in a
defective condition through the negligence of the defendants; that the
plaintiff was allured through the hedge and up to the turn-table by the
negligence of the defendants; and that it was by reason of the
defendants’ negligence and as the effective cause of it that the
misfortune occurred. That judgment was affirmed by the King’s Bench
Division in Ireland (Palles, C. B., and Johnson, J., Kenny, J.,
dissenting) and was afterwards set aside by the Court of Appeal in
Ireland (Sir S. Walker, L. C., FitzGibbon and Holmes, L.JJ.). Hence this
appeal by the plaintiff.[139]

LORD MACNAGHTEN. My Lords, the only question before your Lordships is
this: Was there evidence of negligence on the part of the company fit to
be submitted to the jury? If there was, the verdict must stand, although
your Lordships might have come to a different conclusion on the same
materials.

I cannot help thinking that the issue has been somewhat obscured by the
extravagant importance attached to the gap in the hedge, both in the
arguments of counsel and in the judgments of some of the learned judges
who have had the case under consideration. That there was a gap there,
that it was a good broad gap some three feet wide, is, I think, proved
beyond question. But of all the circumstances attending the case it
seems to me that this gap taken by itself is the least important. I have
some difficulty in believing that a gap in a roadside fence is a strange
and unusual spectacle in any part of Ireland. But however that may be, I
quite agree that the insufficiency of the fence, though the company were
bound by Act of Parliament to maintain it, cannot be regarded as the
effective cause of the accident.

The question for the consideration of the jury may, I think, be stated
thus: Would not a private individual of common sense and ordinary
intelligence, placed in the position in which the company were placed,
and possessing the knowledge which must be attributed to them, have seen
that there was a likelihood of some injury happening to children
resorting to the place and playing with the turn-table, and would he not
have thought it his plain duty either to put a stop to the practice
altogether, or at least to take ordinary precautions to prevent such an
accident as that which occurred?

This, I think, was substantially the question which the Lord Chief
Justice presented to the jury. It seems to me to be in accordance with
the view of the Court of Queen’s Bench in Lynch _v._ Nurdin, 1 Q. B. 29,
and the opinion expressed by Romer and Stirling, L.JJ., in McDowall _v._
Great Western Ry. Co., [1903] 2 K. B. 331.

The Lord Chancellor of Ireland puts Lynch _v._ Nurdin, 1 Q. B. 29,
aside. He holds that it bears no analogy to the present case, because
the thing that did the mischief there was a “cart in the public street—a
nuisance.” But no question of nuisance was considered in Lynch _v._
Nurdin. That point was not suggested. The ground of the decision is a
very simple proposition. “If,” says Lord Denman, “I am guilty of
negligence in leaving anything dangerous in a place where I know it to
be extremely probable that some other person will unjustifiably set it
in motion to the injury of a third, and if that injury should be so
brought about, I presume that the sufferer might have redress by action
against both or either of the two, but unquestionably against the
first.” If that proposition be sound, surely the character of the place,
though, of course, an element proper to be considered, is not a matter
of vital importance. It cannot make very much difference whether the
place is dedicated to the use of the public or left open by a careless
owner to the invasion of children who make it their playground.

I think the jury were entitled and bound to take into consideration all
the circumstances of the case—the mode in which the turn-table was
constructed; its close proximity to the wall by which the plaintiff’s
leg was crushed; the way in which it was left, unfenced, unlocked, and
unfastened; the history of this bit of ground and its position, shut off
as it was by an embankment from the view of the company’s servants at
the station, and lying half derelict. After the construction of the
embankment it served no purpose in connection with the company’s
undertaking, except that at one time a corner of it was used as a
receptacle for some timber belonging to the company, and afterwards as a
site for this turn-table. In other respects, and apart from these uses,
it seems to have been devoted or abandoned to the sustenance of the
railway inspector’s goat and the diversion of the youth of Navan. It is
proved that in spite of a notice board idly forbidding trespass it was a
place of habitual resort for children, and that children were frequently
playing with the timber, and afterwards with the turn-table. At the date
of the trial, twelve months after the accident, a beaten path leading
from the gap bore witness both to the numbers that flocked to the spot
and to the special attraction that drew children to it. It is remarkable
that not a single word of cross-examination as to either of these points
was addressed to the principal witnesses for the plaintiff, Tully, the
herd, and Gertrude Cooke, the plaintiff’s sister; nor was any
explanation or evidence offered on the part of the company. Now the
company knew, or must be deemed to have known, all the circumstances of
the case and what was going on. Yet no precaution was taken to prevent
an accident of a sort that might well have been foreseen and very easily
prevented. They did not close up the gap until after the accident. Then
it was the first thing thought of. But it was too late. They did not
summon any of the children who played there, or bring them before the
magistrates, as a warning to trespassers and a proof that they were
really in earnest in desiring to stop an objectionable practice which
had gone on so long and so openly. They did not have their turn-table
locked automatically in the way in which Mr. Barnes, C. E., whose
evidence is uncontradicted, says it is usual to lock such machines. The
table, it seems, was not even fastened. There was a bolt; but if Cooke,
the father of the plaintiff, is to be believed, the bolt was rusty and
unworkable. The jury were not bound to believe Fowler, a ganger in the
service of the company, in preference to Cooke. Fowler, after some
incautious admissions which the jury probably accepted as true, turned
round and showed himself, as the Chief Justice says, to be hostile to
the plaintiff. He prevaricated to such an extent that the jury were
justified in disregarding everything said by him with the view of
shielding his employers or saving himself from blame, whether it came
out of his own head, as the nonsense he talked about rat-holes, or was
suggested by counsel, as the expression of “hunting” children off the
ground.

                  *       *       *       *       *

It seems to me that the Chief Justice would have been wrong if he had
withdrawn the case from the jury. I think the jury were entitled, in
view of all the circumstances, on the evidence before them,
uncontradicted as it was, to find that the company were guilty of
negligence. I am therefore of opinion that the finding of the jury
should be upheld and the judgment under appeal reversed, with pauper
costs here and costs below; and I move your Lordships accordingly.

I will only add that I do not think that this verdict will be followed
by the disastrous consequences to railway companies and landowners which
the Lord Chancellor of Ireland seems to apprehend. Persons may not think
it worth their while to take ordinary care of their own property, and
may not be compellable to do so; but it does not seem unreasonable to
hold that, if they allow their property to be open to all comers,
infants as well as children of maturer age, and place upon it a machine
attractive to children and dangerous as a plaything, they may be
responsible in damages to those who resort to it with their tacit
permission, and who are unable, in consequence of their tender age, to
take care of themselves.[140]


                            BOLCH _v._ SMITH
                  IN THE EXCHEQUER, JANUARY 30, 1862.
                _Reported in 7 Hurlstone & Norman, 736._

Action to recover for damage occurring as hereinafter stated. Pleas:
first, not guilty; second, various special pleas. Issues thereon.[141]

At the trial, before CHANNELL, B., at the last Hampshire Summer Assizes,
the following facts appeared: The plaintiff was a millwright employed in
the Government dock-yard at Portsmouth. The defendant was a contractor,
and had been engaged for some time in enlarging one of the docks. The
men employed in the dock-yard were not allowed to leave it during the
day, and water-closets had been built for their use. For the purpose of
going to these water-closets, they had permission to use certain paths
which crossed the dock-yard. The defendant had been permitted to erect a
mortar-mill for the purpose of his work, and he built an engine-house on
one side of one of these paths and the mortar-mill on the other side of
the path. A revolving shaft which connected the engine with the mill was
placed across the path about six inches above the level of the ground.
This shaft was partly covered with a few planks not joined together, and
forming an incline upwards from the ground, so that a barrow could be
wheeled over it. The shaft had been on that spot covered or uncovered
for five years. The plaintiff had gone along this path to one of the
water-closets, and whilst returning he accidentally stumbled when near
the shaft, which was in rapid motion, and on reaching out his hand to
save himself his left arm was caught by the shaft, and so much lacerated
that it was necessary to amputate it. There were two other paths by
which the plaintiff might have reached the water-closet; but the one he
used was the shortest and most convenient.

In the course of the defendant’s case it appeared that the shaft had
been fenced to some extent but not sufficiently.

At the close of the defendant’s case, the learned judge proposed to
leave it to the jury to assess the damages, supposing the plaintiff had
a right of action, and then to nonsuit the plaintiff, reserving leave
for him to move to set aside the nonsuit, and enter the verdict for the
amount assessed by the jury. The plaintiff’s counsel declined to accede
to this course; whereupon the learned judge left it to the jury to say:
first, whether the plaintiff was lawfully using the way in question on
the day of the accident; secondly, whether the defendant was guilty of
negligence in leaving the shaft in the state it was on that day. The
jury answered both questions in the affirmative, and they added that
they found “that the shaft was not sufficiently fenced;” and they
assessed the damages at 230_l._ A verdict having been entered for the
plaintiff for that amount.

_Coleridge_, in last Michaelmas Term, obtained a rule nisi for a new
trial, on the ground that the learned judge misdirected the jury in not
telling them that there was no obligation on the part of the defendant
to fence the shaft; and also that the verdict was against the evidence.

CHANNELL, B. I am of opinion that the rule must be absolute for a new
trial. [Remainder of opinion omitted.]

MARTIN, B. I am of the same opinion. The real objection to this action
is that the plaintiff has failed to establish that there was any
obligation or duty on the part of the defendant to have this path in any
other condition than it was at the time of the accident. That should
have been established in some way. If the plaintiff could have shown any
such obligation on the part of the defendant he would have made out a
case, but that was a condition precedent, and the plaintiff has wholly
failed to do so. The defendant had a right to erect the machinery, to
erect it in the place he did, and to work it in the manner he was doing.

Then what is the true condition of the plaintiff? It is said that he had
a right to go along the path across which the machinery was erected, for
he was a workman employed in the dock-yard, and had liberty to use the
water-closet. But that is a fallacious argument. It is true the
plaintiff had permission to use the path. Permission involves leave and
license, but it gives no _right_. If I avail myself of permission to
cross a man’s land, I do so by virtue of a license, not of a right. It
is an abuse of language to call it a right: it is an excuse or license,
so that the party cannot be treated as a trespasser. Inasmuch as there
was another way by which the plaintiff might have gone, but voluntarily
chose the one which was out of order, I think he has no right of action
against the defendant, and that he ought to have been nonsuited at the
trial.

WILDE, B. I am of the same opinion. It is of importance in all these
cases that the facts upon which the decisions are based should be made
plain. The plaintiff was one of a number of persons who obtained leave
and license from the dock-yard authorities to cross the yard from one
place to another. The defendant had permission from the same authorities
to put up certain machinery in the yard. The plaintiff while walking
along the usual track fell down, not by reason of any obstruction, but
in consequence of stumbling, and in trying to save himself, his arm came
in contact with a revolving shaft and was lacerated.

I will decide the case as if it were a question between the plaintiff
and the owners of the yard, because if they are not responsible for
putting up the shaft, a fortiori the defendant is not. Then, was there
any obligation on the owners of the yard not to put up machinery that
might be dangerous to persons crossing it? None of the facts tend to
show that any such obligation existed. If what was put up was an
obstruction to any person who used that way, the only consequence would
be that he would have to go another way. That being so, it appears to me
that this action cannot lie, because I agree that it is founded upon a
duty, and none exists.

That disposes of the case; but I will add that I do not mean to say that
if the defendant had made a hole in the yard, and had covered it in a
way that was insufficient, but which appeared to be sufficient, he would
not have been liable. But here there was nothing of that character. The
danger was open and visible. There was nothing which could be called a
“trap.”

POLLOCK, C. B., concurred.

                                   _Rule absolute for a new trial._[142]


                          GAUTRET _v._ EGERTON
                IN THE COMMON PLEAS, FEBRUARY 11, 1867.
            _Reported in Law Reports, 2 Common Pleas, 371._

The declaration in the first of these actions stated that the defendants
were possessed of a close of land, and of a certain canal and cuttings
intersecting the same, and of certain bridges across the said canal and
cuttings, communicating with and leading to certain docks of the
defendants, which said land and bridges had been and were from time to
time used with the consent and permission of the defendants by persons
proceeding towards and coming from the said docks; that the defendants,
well knowing the premises, wrongfully, negligently, and improperly kept
and maintained the said land, canal, cuttings, and bridges, and suffered
them to continue and be in so improper a state and condition as to
render them dangerous and unsafe for persons lawfully passing along and
over the said land and bridges towards the said docks, and using the
same as aforesaid; and that Leon Gautret, whilst he was lawfully in and
passing and walking along the said close and over the said bridge, and
using the same in the manner and for the purpose aforesaid, by and
through the said wrongful, negligent, and improper conduct of the
defendants as aforesaid, fell into one of the said cuttings of the
defendants, intersecting the said close as aforesaid, and thereby lost
his life within twelve calendar months next before the suit: and the
plaintiff, as administratrix, for the benefit of herself, the widow of
the said Leon Gautret, and A. Gautret, &c., according to the statute in
such case made and provided, claimed 2,500_l._

The defendants demurred to the declaration, on the ground that “it does
not appear that there was any legal duty or obligation on the part of
the defendants to take means for preventing the said land, &c., being
dangerous and unsafe.” Joinder.

_Crompton_ (_Mellish, Q. C._, with him), in support of the demurrer.—To
maintain this action, the declarations ought to show a _duty_ in the
defendants to keep the canal, cuttings, and bridges in a safe condition,
and also that some invitation had been held out to the deceased to come
there, and that the thing complained of constituted a sort of trap.
Seymour _v._ Maddox, 16 Q. B. 326 (E. C. L. R. vol. 71), 19 L. J. Q. B.
525; Corby _v._ Hill, 4 C. B. N. S. 556 (E. C. L. R. vol. 93), 27 L. J.
C. P. 318. The declaration is entirely wanting in all these particulars.
It is not enough to show that the defendants were aware that the place
in question was in an unsafe condition, and that the public were in the
habit of passing along it. Hounsell _v._ Smyth, 7 C. B. N. S. 731, 29 L.
J. C. P. 203.

[WILLES, J. The declaration does not even state that the deceased
persons were unacquainted with the state of the place.]

_Herschell_, for the plaintiff Gautret.—The question raised upon this
declaration is, whether there is any duty on the part of the defendants
toward persons using their land as the deceased here did. That may be
negligence in the case of a licensee, which would not be negligence as
against a mere trespasser: and, if there can be any case in which the
law would imply a duty, it is sufficiently alleged here.

[WILLES, J. It may be the duty of the defendants to abstain from doing
any act which may be dangerous to persons coming upon the land by their
invitation or permission, as in Indermaur _v._ Dames, Law Rep. 1 C. P.
274.[143] So, if I employ one to carry an article which is of a
peculiarly dangerous nature, without cautioning him, I may be
responsible for any injury he sustains through the absence of such
caution. That was the case of Farrant _v._ Barnes, 11 C. B. N. S. 553,
31 L. J. C. P. 137. But, what duty does the law impose upon these
defendants to keep their bridges in repair? If I dedicate a way to the
public which is full of ruts and holes, the public must take it as it
is. If I dig a pit in it, I may be liable for the consequences: but, if
I do nothing, I am not.]

It was not necessary to specify the nature of the negligence which is
charged: it was enough to allege generally a duty and a breach of it.
Knowing the bridge to be unsafe, it was the duty of the defendants not
to permit the public to use it. In Bolch _v._ Smith, 7 H. & N. 736, 31
L. J. Ex. 201, the defect in the fencing of the shaft was apparent: but
the judgments of Channell and Wilde, BB., seem to concede that, if there
had been a concealed defect, the action would have been maintainable.
That shows that there is some duty in such a case as this.

_Potter_, for the plaintiff Jones, submitted that the implied request on
the part of the defendants to persons having occasion to go to the docks
to pass by the way in question, raised a duty in them to keep it in a
safe condition.

WILLES, J. I am of opinion that our judgment must be for the defendants
in each of these cases. The argument urged on behalf of the plaintiffs,
when analyzed, amounts to this, that we ought to construe the general
words of the declaration as describing whatever sort of negligence the
plaintiffs can prove at the trial. The authorities, however, and reason
and good sense, are the other way. The plaintiff must, in his
declaration, give the defendant notice of what his complaint is. He must
recover _secundum allegata et probata_. What is it that a declaration of
this sort should state in order to fulfil those conditions? It ought to
state the facts upon which the supposed duty is founded, and the duty to
the plaintiff with the breach of which the defendant is charged. It is
not enough to show that the defendant has been guilty of negligence,
without showing in what respect he was negligent, and how he became
bound to use care to prevent injury to others. All that these
declarations allege is, that the defendants were possessed of land, and
of a canal and cuttings intersecting the same, and of certain bridges
across the canal and cuttings communicating with and leading to certain
docks of theirs; that they allowed persons going to and from the docks,
whether upon the business or for the profit of the defendants or not, to
pass over the land; and that the deceased persons, in pursuance of and
using that permission, fell into one of the cuttings, and so met their
deaths. The consequences of these accidents are sought to be visited
upon these defendants, because they have allowed persons to go over
their land, not alleging it to have been upon the business or for the
benefit of the defendants, or as the servants or agents of the
defendants; nor alleging that the defendants have been guilty of any
wrongful act, such as digging a trench on the land, or misrepresenting
its condition, or anything equivalent to laying a trap for the unwary
passengers; but simply because they permitted these persons to use a way
with the condition of which, for anything that appears, those who
suffered the injury were perfectly well acquainted. That is the whole
sum and substance of these declarations. If the docks to which the way
in question led were public docks, the way would be a public way, and
the township or parish would be bound to repair it, and no such
liability as this could be cast upon the defendants merely by reason of
the soil of the way being theirs. That is so not only in reason but also
upon authority. It was so held in Robbins _v._ Jones, 15 C. B. N. S.
221, 33 L. J. C. P. 1, where a way having been for a number of years
dedicated to the public, we held that the owner of the adjoining house
was not responsible for death resulting to a person from the giving way
of the pavement, partly in consequence of its being over-weighted by a
number of persons crowding upon it, and partly from its having been
weakened by user. Assuming that these were private docks, the private
property of the defendants, and that they permitted persons going to or
coming from the docks, whether for their own benefit or that of the
defendants, to use the way, the dedication of a permission to use the
way must be taken to be in the character of a gift. The principle of law
as to gifts is, that the giver is not responsible for damage resulting
from the insecurity of the thing, unless he knew its evil character at
the time, and omitted to caution the donee. There must be something like
fraud on the part of the giver before he can be made answerable. It is
quite consistent with the declarations in these cases that this land was
in the same state at the time of the accident that it was in at the time
the permission to use it was originally given. To create a cause of
action, something like fraud must be shown. No action will lie against a
spiteful man who, seeing another running into a position of danger,
merely omits to warn him. To bring the case within the category of
actionable negligence, some wrongful act must be shown, or a breach of
some positive duty: otherwise, a man who allows strangers to roam over
his property would be held to be answerable for not protecting them
against any danger which they might encounter whilst using the license.
Every man is bound not wilfully to deceive others, or do any act which
may place them in danger. It may be, as in Corby _v._ Hill, 4 C. B. N.
S. 556, 27 L. J. C. P. 318, that he is responsible if he puts an
obstruction on the way which is likely to cause injury to those who by
his permission use the way; but I cannot conceive that he could incur
any responsibility merely by reason of his allowing the way to be out of
repair. For these reasons, I think these declarations disclose no cause
of action against the defendants, and that the latter are therefore
entitled to judgment.

KEATING, J. I am of the same opinion. It is not denied that a
declaration of this sort must show a duty and a breach of that duty. But
it is said that these declarations are so framed that it would be
necessary for the plaintiffs at the trial to prove a duty. I am,
however, utterly unable to discover any duty which the defendants have
contracted towards the persons whom the plaintiffs represent, or what
particular breach of duty is charged. It is said that the condition of
the land and bridges was such as to constitute them a kind of trap. I
cannot accede to that. The persons who used the way took it with all its
imperfections.

_Herschell_ asked and obtained leave to amend within ten days, on
payment of costs; otherwise judgment for the defendants.

                                                 _Judgment accordingly._


                           CAMPBELL _v._ BOYD
          SUPREME COURT, NORTH CAROLINA, FEBRUARY TERM, 1883.
             _Reported in 88 North Carolina Reports, 129._

Civil action tried at Fall Term, 1882, of Beaufort Superior Court,
before Gilliam, J.

The defendant appealed.

SMITH, C. J. The defendant owns and operates a mill, that has been built
and used for one hundred years, at the head of Pungo creek. A few yards
below its site the creek divides, and its waters flow in two separate
streams. Along its course on either side run parallel public roads each
two miles distant, and from them have been constructed private ways
leading up to and meeting at the mill, and affording convenient access
from the roads to it. One of these ways was opened by former
proprietors, and the other in the year 1867, by the defendant.

In 1875 or 1876, the defendant, with other owners of the intervening
land, united in opening a connecting way, between those leading from the
public roads, from near points in each, so as to form a direct passway
across the two divergent streams from one road to the other, without
going up to the mill. Over these waters they also constructed bridges.
While this direct route was opened mainly for the convenience of the
defendant and his associates, whose lands were traversed, it was also
used as well by the public with full knowledge of the defendant, and
without objection from any one in passing between the roads.

In February, 1882, the plaintiff, with his horse, while in the use of
this connecting way and passing one of the bridges, broke through, and
both were precipitated into the creek, and the damage sustained for the
redress of which the suit is brought.

The flooring of the bridge was sound, and there was no visible
indication of weakness or decay to put a person passing over it on his
guard. But the timbers underneath, and hidden by the floor, were in a
rotten and unsound condition, and of this the defendant had full
knowledge before the disaster.

He was at his mill and saw what occurred, and going up to the place
remarked to the plaintiff that when he saw him about to enter the bridge
he thought of calling him to stop, but did not do so; that the bridge
was unsafe, and he regretted he did not stop the plaintiff from
crossing.

These are the material facts found by the judge, under the consent of
parties that he should pass upon the evidence and ascertain the facts of
the case, and our only inquiry is upon the correctness of his ruling
that the defendant is liable in damages to the plaintiff, and from which
the defendant appeals.

The only case in our reports bearing upon the point is that of
Mulholland _v._ Brownrigg, 2 Hawks, 349. There, the defendant’s millpond
overflowed parts of the public road, and hollow bridges had been
erected, but by whom, did not appear; nor was it shown that they were
built at the expense of the public. This condition of things had existed
for twenty years, and the mill had been owned and operated by the
defendant for the space of five years. The successive mill proprietors
had kept the overflowed bed of the road and the bridges in repair. The
plaintiff’s wagon, loaded with goods, passing a bridge, broke through,
in consequence of its decayed state, and the goods were injured by the
water. The action was for this injury. It was declared by the Court that
as a nuisance was created by the flooding of the road, and the defendant
had undertaken to remedy it in constructing the bridges, it was his
duty, as that of preceding proprietors of the mill, to maintain them in
a proper condition of repair, and ensure the safety of those persons who
in using the road had to pass over them, and that the damage having
resulted from his negligence he was liable to the plaintiff. The
proposition is asserted, that inasmuch as the defendant has undertaken
to remedy a nuisance of his own creating, by constructing the bridge, he
undertakes also and is bound to keep it in sufficient repair, and is
answerable for the consequences of his neglect to do so.

The principle of law, in more general terms and with a wider scope, is
thus expressed by Hoar, J., in Combs _v._ New Bed. Con. Co., 102 Mass.
584. “There is another class of cases in which it has been held that, if
a person allows a dangerous place to exist in premises occupied by him,
he will be responsible for injury caused thereby, to any other person
entering upon the premises by his invitation and procurement, express or
implied, and not notified of the danger, if the person injured is in the
use of due care.”

“The principle is well settled,” remarks Appleton, C. J., “that a person
injured, without neglect on his part, by a defect or obstruction in a
way or passage over which he has been induced to pass for a lawful
purpose, by an invitation express or implied, can recover damages for
the injury sustained, against the individual so inviting, and being in
default for the neglect.” Tobin _v._ P. S. & P. R. R., 59 Maine, 188.

Several illustrations of the principle in its different applications
will be found in Wharton on Negligence, § 826, and following.

The facts of the present case bring it within the rule thus enunciated.
The way was opened by the defendant and his associates; primarily,
though it was for his and their accommodation, yet, permissively, to the
general travelling public. It has, in fact, been thus used, and known to
the defendant to be thus used, with the acquiescence of himself and the
others; and under these circumstances it may fairly be assumed to be an
invitation to all who have occasion thus to use it; and hence a
voluntary obligation is incurred to keep the bridges in a safe
condition, so that no detriment may come to travellers.

Reparation is an inseparable incident of its construction, and, as the
obligation to repair rests on no other, the liability for neglect must
rest on those who put the bridges there and invited the public to use
them.

It is true the way might have been closed, or the public prohibited by
proper notices from passing over it, and no one could complain of the
exercise of the right to do so; but as long as the way is left open and
the bridges remain for the public to use, it is incumbent on those who
constructed and maintain them to see that they are safe for all.

The law does not tolerate the presence over and along a way in common
use, of structures apparently sound, but in fact ruinous, like
man-traps, inviting travellers to needless disaster and injury. The duty
of reparation should rest on some one, and it can rest on none others
but those who built and used the bridges, and impliedly at least invite
the public to use them also. For neglect of this duty they must abide
the consequences.

We hold, therefore, that there is no error, and the judgment must be
affirmed.

_No error._

                                                        _Affirmed._[144]


                        GALLAGHER _v._ HUMPHREY
                  IN THE QUEEN’S BENCH, JUNE 14, 1862.
   _Reported in 6 Law Times Reports, New Series, 684; S. C. 10 Weekly
                          Reporter, 664._[145]

Declaration. That the defendant was possessed of a crane fixed upon the
New Hibernia Wharf, in a certain passage called Montague Close,
Southwark, along which passage the plaintiff and others were permitted
to pass, repass, and use the same as a way to certain wharves; that the
crane was used by the defendant and his servants to raise and lower
goods over the passage; that the plaintiff was, with the permission of
the proprietors of the passage, lawfully passing along the said passage
to the said wharves; yet the defendant, by himself and his servants, so
negligently, &c. managed, directed, and conducted themselves that by and
through such neglect, &c., a part of said crane broke, whilst the
defendant, by his servants, was using the same, and certain goods fell
upon the plaintiff whilst he was passing along, &c. and broke both his
legs, &c.

Pleas: 1. Not guilty. 2. That the plaintiff and others were not
permitted by the proprietors of the said passage to pass, repass, and
use the said passage as a way from a highway to certain wharves, as in
the declaration charged. 3. That the plaintiff was not, with the
permission of the proprietors of the said passage, lawfully passing
along the said passage from the said highway to the said wharves, as in
the declaration alleged.

Issue on the said pleas.

At the trial before Blackburn, J., at the Croydon Summer Assizes, 1861,
it was proved that the plaintiff, the son of a laborer employed in the
erection of West Kent Wharf, under a contractor for the defendant’s
father, had, on the day when the accident happened, taken his father’s
dinner, according to his usual custom, to West Kent Wharf, and on his
return was obliged to pass under a crane erected on the defendant’s
(Hibernia) wharf, and there employed in lowering barrels of sugar. As he
was passing the chain broke, and 12 cwt. of sugar fell upon him,
inflicting the injuries complained of. The breakage of the chain was
caused by negligence in the mode of applying the breaks, for, after the
sugar had been attached the chain of the crane was allowed to run, and
then the man suddenly put on the break and the jerk caused the weight to
rise and fall and the chain to break. Montague Close is approached by
steps from London Bridge, the gate to which was usually opened very
early in the morning, and numbers of persons, to the knowledge of the
defendant, used to pass along the passage, and no objection was made to
persons using the way if on legitimate business. The judge left the
following questions to the jury: 1st, Was the accident caused by the
negligence of the defendant, or was it a pure accident over which no one
could have any control? 2d, Could the boy by reasonable care have
avoided the accident? 3d, Were the plaintiff and others permitted to go
up Montague Close by the owners? 4th, Did the defendant on the evidence
as disclosed tacitly give permission to the plaintiff to pass that way?
5th, Was the boy going to the wharf for a legitimate purpose? The jury
having answered all the questions in favor of the plaintiff, a verdict
was entered for him, with leave for the defendant to move to set it
aside and enter a verdict on the second and third issues. The damages
were assessed at £100.

A rule _nisi_ having been obtained calling on the plaintiff to show
cause why the verdict should not be entered for the defendant on the
second and third issues,—

_Shee_, Serjt., (_Grady_ with him,) showed cause. On the form of the
rule as obtained the plaintiff is clearly entitled to succeed, as there
was evidence that the defendant did by his acts tacitly give permission
to the boy to pass along the close for a lawful purpose, and the jury
have so found. But the plaintiff is also entitled to succeed on the
broader ground. In Corby _v._ Hill, 4 C. B. N. S. 556, it was held that
the defendant was liable for the negligence of his servant in placing
materials in a dangerous position, and without notice, on a private road
along which persons were accustomed to pass by leave of the owners; and
in Southcote _v._ Stanley, 25 L. J. 339, Ex.,[146] a visitor to a
person’s house was held entitled to recover for injuries caused by
opening a glass door which was insecure, and which it was necessary for
him to open. (He was then stopped by the Court.)

_Petersdorff_, Serjt., (_Bridge_ with him,) in support of the rule.
Montague Close was the defendant’s private property, and no one had any
right to be there without his express or implied permission. The
lowering heavy goods from the warehouses by cranes is a manifestly
dangerous business, and persons using the way took upon themselves
whatever risks might be incidental to that business. In Hounsell _v._
Smyth, 7 C. B. N. S. 743, where the defendant was held not to be liable
for leaving a quarry unfenced on waste land across which the public were
allowed to pass, Williams, J., said: “No right is averred, but merely
that the owners allowed persons, for diversion or business, to go across
the waste without complaint; that is, that they were not so churlish as
to interfere with any one who went across. But a person so using the
waste has no right to complain of any excavation he may find there; he
must accept the permission with its concomitant conditions, and it may
be its perils.” [BLACKBURN, J. Have you any authority that persons so
using the way take upon themselves the negligence of the servants about
the place?] In Bolch _v._ Smith, 31 L. J. 201, Ex., where workmen
employed in a dock-yard were permitted to use a place as a way on which
revolving machinery had been erected, it was held that the right so to
use the place was only the right not to be treated as a trespasser, and
that there was no obligation to fence the machinery, and no liability
for insufficiently fencing it. [COCKBURN, C. J. There was the ordinary
state of things in that case, and no superadded negligence.]

COCKBURN, C. J. I doubt whether on the pleadings and this rule it is
competent to enter into the question of negligence, and whether the
whole matter does not turn upon the question whether permission was or
was not given to the plaintiff to pass along the way. But I should be
sorry to decide this case upon that narrow ground. I quite agree that a
person who merely gives permission to pass and repass along his close is
not bound to do more than allow the enjoyment of such permissive right
under the circumstances in which the way exists; that he is not bound,
for instance, if the way passes along the side of a dangerous ditch or
along the edge of a precipice, to fence off the ditch or precipice. The
grantee must use the permission as the thing exists. It is a different
question, however, where negligence on the part of the person granting
the permission is superadded. It cannot be that, having granted
permission to use a way subject to existing dangers, he is to be allowed
to do any further act to endanger the safety of the person using the
way. The plaintiff took the permission to use the way subject to a
certain amount of risk and danger, but the case assumes a different
aspect when the negligence of the defendant—for the negligence of his
servants is his—is added to that risk and danger. The way in question
was a private one leading to different wharves. On part of the way a
wharf was being constructed or repaired, and the plaintiff’s father was
employed upon that work. It was the father’s habit not to go home to his
meals, and the boy used to take them to him at the wharf, and on this
occasion was passing along carrying his father’s dinner. The plaintiff
was therefore passing along on a perfectly legitimate purpose, and the
evidence is that the defendant permitted the way to be used by persons
having legitimate business upon the premises. That being so, the
defendant places himself by such permission under the obligation of not
doing anything by himself or his servants from which injury may arise,
and if by any act of negligence on the part of himself or his servants
injury does arise, he is liable to an action. That is the whole
question. The plaintiff is passing along the passage by permission of
the defendant, and though he could only enjoy that permission under
certain contingencies, yet when injury arises not from any of those
contingencies, but from the superadded negligence of the defendant, the
defendant is liable for that negligence as much as if it had been upon a
public highway.

WIGHTMAN, J. The rule in this case was obtained on a very narrow ground.
The declaration having alleged that the plaintiff and others were
permitted to pass, repass, and use the way in question, and that the
plaintiff was there with the permission of the proprietors of the
passage lawfully passing along the passage, the defendant took issue on
the fact whether such right to pass along the passage was permitted by
the defendant. I think that there was evidence to show that the
plaintiff had the permission of the defendant to use the way, and that
he was lawfully there at the time of the accident. I entirely agree with
my Lord Chief Justice that the plaintiff is also entitled to succeed on
the larger ground. It appears to me that such a permission as is here
alleged may be subject to the qualification that the person giving it
shall not be liable for injuries to persons using the way arising from
the ordinary state of things, or of the ordinary nature of the business
carried on; but that is distinguishable from the case of injuries wholly
arising from the negligence of that person’s servants.

CROMPTON, J. I am of the same opinion. I think we should look not only
to the grounds upon which this rule was granted, but to the real defence
set up by my brother Petersdorff. That defence is, in effect, that the
plaintiff was using the way only under the qualified permission that he
should be subject to any negligence of the plaintiff or his servants. If
that defence be sustainable upon the general issue, or otherwise, we
should see whether it is made out, and I am of opinion that it is not
made out. I quite agree with what has fallen from my Lord and my brother
Wightman. There may be a public dedication of a way, or a private
permission to use it subject to a qualification; for example, subject to
the danger arising from a stone step or a projecting house; and in such
a case the public, or the persons using the way, take the right to use
it subject to such qualification; but they are not thereby to be made
subject to risks from what may be called active negligence. Whenever a
party has a right to pass over certain ground, if injury occurs to him
while so passing from negligence, he has a right to compensation. The
argument of my brother Petersdorff fails therefore upon this ground. I
think, too, that it is doubtful whether even the fact that the injured
person was present unlawfully would excuse negligence, though it would
be an element in determining what is negligence, and what is not. In the
present case, however, that question does not arise, as there is no
doubt the plaintiff was there upon a legitimate errand.

BLACKBURN, J. I am of the same opinion. If the substantial defence
raised existed I am not sure but what it could be raised under the
present pleadings, and the leave reserved; but at any rate I think we
could amend the pleadings, if necessary, to raise it. But I do not think
that any such defence exists here. The plaintiff seeks to recover for
the negligence of the defendant. Now, the existence of negligence
depends upon the duty of the party charged with it. I concur with the
judgment of the Court of Exchequer in Bolch _v._ Smith that, when
permission is given to a person to pass through a yard where dangerous
machinery is at work, no duty is cast upon the person giving such
permission to fence the machinery against the person permitted so to
pass. That decision does not touch the present case, which falls rather
within the remark then made by my brother Wilde: “If persons in the
condition of the defendant had left anything like a trap in route used
on the premises, I am far from saying they would not be liable.” This is
more like the case of Corby _v._ Hill, where the matter placed upon the
road is called a trap set for persons using it; and it is clear that
when one gives another permission to pass over his land, it is his duty
not to set a trap for him. Here the boy was passing upon a legitimate
errand while the defendant’s servants were employed in lowering weights.
If he had sustained any injury by a weight descending, without any
negligence of the defendant’s servants, there is no doubt that he could
not recover, but he suffered through the negligence of the persons
lowering the bags, who were well aware that people were in the habit of
passing below, and that danger would arise if the chain broke. I think,
therefore, that it was the duty of the defendant and his servants to use
ordinary care that the chain should not break. The jury have found that
they neglected that duty, and I do not disagree with their finding. Our
decision does not conflict with the judgment of the Court of Exchequer
in Bolch v. Smith, or of the Common Pleas in Hounsell _v._ Smyth.

                                                 _Rule discharged._[147]


                         CARSKADDON _v._ MILLS
            IN THE APPELLATE COURT, INDIANA, MAY TERM, 1892.
          _Reported in 5 Indiana Appellate Court Reports, 22._

Action for damage to plaintiff’s horse.[148] Trial by the court. The
case made by plaintiff’s evidence was in substance as follows:—

Defendant purchased a lot of land in October, 1890. Across this lot ran
a road leading from one street to another, having a well-defined track
made by wagons, horses, etc. The road was not a public highway, but had
been used by the travelling public generally for a period of from five
to fifteen years. Defendant’s lot was not fenced on the front and rear,
the direction in which the road ran, but was fenced on the sides. After
building a house on the lot, defendant “informed” the people travelling
over this roadway not to use it any longer for such purpose; but no heed
was paid to this. In the latter part of December, 1890, in order the
more effectually to stop the travel over the lot, the defendant
stretched a strand of barbed wire across the rear end of the lot, about
three feet above the ground and at right angles, or nearly so, with said
road. The entire fence was upon the appellee’s lot. No notice of any
kind was given of this obstruction otherwise than as it advertised
itself. The wire could not be seen in the dark of night and only a short
distance—twenty to twenty-five feet—in daylight. There were no posts
that could be seen from the road in the night when the accident
hereinafter alluded to occurred. The appellant, who lived in that
community, had frequently travelled over the road leading across this
lot, and had no notice or knowledge of its being closed up with the
wire. The last time before the accident when he passed over the lot was
in September or October, 1890. At about 6 o’clock on the evening of
January 1, 1891, after it had become too dark to see this wire, the
appellant attempted to drive across this lot, in the road, to perform
some legitimate errand on the other side. Not knowing of the presence of
the wire, he drove his horse briskly ahead of him until the animal came
up suddenly against the barbs, cutting a gash in its front leg four to
five inches in length and two inches deep, severing the frontal muscle,
from which the horse was injured, to the damage of the appellant.

When the appellant had closed his evidence, the learned judge observed
that he had examined the law of the case, and saw no reason why a man
could not fence in his own land, on his own ground, and that, [if] “a
travelling man over such property taking the license into his own hand,
without invitation or inducement, because others do so, suffers injury,
he must put up with it.”

The judge ruled that plaintiff’s evidence did not make out a _prima
facie_ right to recover; and found for defendant; denying plaintiff’s
motion for a new trial. Plaintiff appealed.

REINHARD, C. J. [The learned judge said that a license may be created
either by parol or by acquiescence in the use of the property for the
purpose in question without objection. He _held_ that plaintiff was
_prima facie_ a licensee, and not a trespasser.]

A mere license, however, to travel over the land of another may be
revoked at any time at the pleasure of the licensor. Parish _v._ Kaspar,
109 Ind. 586; Simpson _v._ Wright, 21 Ill. App. 67; 13 Am. & Eng. Encyc.
of Law, 555.

Where the license is once proved, however, or a _prima facie_ case of
such license has been made out, it then devolves upon the party
asserting a revocation to prove it. Blunt _v._ Barrett, 54 N. Y. Sup.
548.

Consequently if the license in the present case was claimed to have been
discontinued or revoked, the burden was upon appellees to show that
fact.

Was such revocation established, or was there any evidence from which
the court could infer the same?

The transfer of the property, or the fencing of the same, may, under
ordinary circumstances, be sufficient to amount to a revocation.
Ordinarily a man has a right to use his own property as he pleases, but
at the same time this gives him no right to use it to the detriment or
injury of his neighbor. We think the erection of an ordinary fence
around the lot, one that was not calculated to inflict injury, was
proper and right, and it was the privilege of the appellees to thus
close up their premises without asking of any one the permission to do
so. But whenever they undertook to inclose their property under
circumstances that made it dangerous to those likely to pass over it,
and which the appellees must anticipate would incur injury by it, it
became their duty, if such dangerous means must be employed to
accomplish the purpose, to give some sort of warning.

Thus it was held in Houston, etc., R. W. Co. _v._ Boozer, 70 Tex. 530,
that if the owner of the land has been accustomed to permit others to
use his property to travel over to such an extent as to produce a
confident belief that the use will not be objected to, he must not
mislead them by failing to give a proper warning of his intention to
recall the permission. See, also, Cornish _v._ Stubbs, 5 L. R. C. P.
334; Mellor _v._ Watkins, L. R. 9 Q. B. 400.

While we grant the clear right of the appellees to revoke the license,
we assert as emphatically that they must do so in a manner not
calculated under ordinary circumstances to inflict injury unnecessarily.
Although a licensee acquires no interest, as the term is usually
employed, nor property right in the real estate over which he is allowed
to travel, he yet has the right not to be wilfully or even recklessly
injured by the acts of the owner. It cannot be said truthfully that the
owner does not owe _some_ duty to a licensee.

At the time of the stretching of the wire the appellees must have known
that the public would continue to travel over this lot until in some way
prevented from doing so. They must have known further that a single
strand of wire, without posts at the roadside, or other means calculated
to attract the attention of passers-by, could not be seen in the dark,
and was a dangerous obstruction, liable to injure those coming in
contact with it. They must, therefore, have anticipated just such
results as the one that happened to the appellant. It was their clear
duty, consequently, in case they desired to make use of the dangerous
wire, to shut out the public from going over their lot, to give some
warning by which the presence of the wire might be detected. Had they
used an ordinary fence, one constructed out of material not necessarily
dangerous to life and limb even if encountered in the dark, the case
might be otherwise, and notice might not have been necessary. But the
stretching of the barbed wire, without notice, under the circumstances
was, we think, a plain violation of duty.

The case made by the evidence is one of more than mere passive
negligence. In that class of cases it is well enough settled that there
is no liability to a mere licensee. Thus where the owner of premises
inadvertently leaves unguarded a pit, hatchway, trap-door, cistern, or
other dangerous opening, and one who is present merely by permission and
not by invitation, express or implied, falls into the opening and is
injured, he cannot recover, as, in such case, he enjoys the license
subject to the risks. Thiele _v._ McManus, 3 Ind. App. 132. But while an
owner may not be liable to one who is thus injured by mere inattention
and neglect of the owner, there could be no doubt of his liability if it
were shown that the obstruction was placed there purposely to keep the
licensee from entering the premises, or for the very purpose of
inflicting injury if an attempt be made to cross. As well might an owner
give permission to his neighbor to travel over his field and then set a
trap to hurt him.

Where the owner of ground digs a pit or erects other dangerous
obstructions at a place where it is probable that persons or animals may
go and become injured, without using proper care to guard the same, it
is well settled in this state that there is a liability, and that the
owner must respond in damages for any injury incurred by such
negligence. Young _v._ Harvey, 16 Ind. 314; Graves _v._ Thomas, 95 Ind.
361; Mayhew _v._ Burns, 103 Ind. 328; Penso _v._ McCormick, 125 Ind.
116.

A barbed wire fence is not of itself an unlawful one, and the building
of such along a public highway is not necessarily a negligent act; but
yet, even in such case as that, there may be circumstances under which a
person building such a fence, in a negligent manner, will be held liable
for damages caused thereby. Sisk _v._ Crump, 112 Ind. 504. All these
cases proceed upon the assumption that the party whose negligence caused
the injury owed the other some duty which he failed to perform, for,
after all, negligence is nothing more nor less than the failure to
discharge some legal duty or obligation.

Even trespassers have some rights an owner is bound to respect. If a
person, without permission, should attempt to cross the field of
another, and tramp down his growing grain, it would not be contended, we
apprehend, that this gave the owner any right to kill the trespasser, or
even to seriously injure him unnecessarily. The use of spring guns,
traps, and other devices to catch and injure trespassing persons or
animals has been condemned both in this country and in England. Hooker
_v._ Miller, 37 Iowa, 613; Deane _v._ Clayton, 7 Taunt. 489. If such
means may not be employed against trespassers, we do not see upon what
principle it can be held that it is proper to use them against one who
has a permissive right to go upon the property where they are placed.

While in the case at bar there may be no proof of intentional injury,
the facts, we think, bring the case within the principle declared in
Young _v._ Harvey, _supra_; Graves _v._ Thomas, _supra_; Penso _v._
McCormick, _supra_; and Sisk _v._ Crump, _supra_.

The court should have sustained the motion for a new trial.

                                               _Judgment reversed._[149]


                          INDERMAUR _v._ DAMES
                IN THE COMMON PLEAS, FEBRUARY 26, 1866.
            _Reported in Law Reports, 1 Common Pleas, 274._

The judgment of the Court (ERLE, C. J., WILLES, KEATING, and MONTAGUE
SMITH, JJ.) was delivered by[150]

WILLES, J. This was an action to recover damages for hurt sustained by
the plaintiff’s falling down a shaft at the defendant’s place of
business, through the actionable negligence, as it was alleged, of the
defendant and his servants.

At the trial before the Lord Chief Justice at the sittings here after
Michaelmas Term, the plaintiff had a verdict for 400_l._ damages,
subject to leave reserved.

A rule was obtained by the defendant in last term to enter a nonsuit, or
to arrest the judgment, or for a new trial because of the verdict being
against the evidence.

The rule was argued during the last term, before Erle, C. J., Keating
and Montague Smith, JJ., and myself, when we took time to consider. We
are now of opinion that the rule ought to be discharged.

It appears that the defendant was a sugar-refiner, at whose place of
business there was a shaft four feet three inches square, and
twenty-nine feet three inches deep, used for moving sugar. The shaft was
necessary, usual, and proper in the way of the defendant’s business.
Whilst it was in use, it was necessary and proper that it should be open
and unfenced. When it was not in use, it was sometimes necessary, with
reference to ventilation, that it should be open. It was not necessary
that it should, when not in use, be unfenced; and it might then without
injury to the business have been fenced by a rail. Whether it was usual
to fence similar shafts when not in use did not distinctly appear; nor
is it very material, because such protection was unquestionably proper,
in the sense of reasonable, with reference to the safety of persons
having a right to move about upon the floor where the shaft in fact was,
because in its nature it formed a pitfall there. At the time of the
accident it was not in use, and it was open and unfenced.

The plaintiff was a journeyman gas-fitter in the employ of a patentee
who had supplied the defendant with his patent gas-regulator, to be paid
for upon the terms that it effected a certain saving: and, for the
purpose of ascertaining whether such a saving had been effected, the
plaintiff’s employer required to test the action of the regulator. He
accordingly sent the plaintiff to the defendant’s place of business for
that purpose; and, whilst the plaintiff was engaged upon the floor where
the shaft was, he (under circumstances as to which the evidence was
conflicting, but) accidentally, and, as the jury found, without any
fault or negligence on his part, fell down the shaft, and was seriously
hurt.

It was argued, that, as the defendant had objected to the plaintiff’s
working at the place upon a former occasion, he (the plaintiff) could
not be considered as having been in the place with the defendant’s leave
at the time of the accident: but the evidence did not establish a
peremptory or absolute objection to the plaintiff’s being employed, so
as to make the sending of him upon the occasion of the accident any more
against the defendant’s will than the sending of any other workman: and
the employment, and the implied authority resulting therefrom to test
the apparatus were not of a character involving personal preference
(_dilectus personæ_), so as to make it necessary that the patentee
should himself attend. It was not suggested that the work was not
journeyman’s work.

It was also argued that the plaintiff was at best in the condition of a
bare licensee or guest who, it was urged, is only entitled to use the
place as he finds it, and whose complaint may be said to wear the color
of ingratitude, so long as there is no design to injure him: see
Hounsell _v._ Smyth, 7 C. B. N. S. 371, 29 L. J. (C. P.) 203.

We think this argument fails, because the capacity in which the
plaintiff was there was that of a person on lawful business, in the
course of fulfilling a contract in which both the plaintiff and the
defendant had an interest, and not upon bare permission. No sound
distinction was suggested between the case of the servant and the case
of the employer, if the latter had thought proper to go in person; nor
between the case of a person engaged in doing the work for the defendant
pursuant to his employment, and that of a person testing the work which
he had stipulated with the defendant to be paid for if it stood the
test; whereby impliedly the workman was to be allowed an on-stand to
apply that test, and a reasonable opportunity of doing so. Any duty to
enable the workman to do the work in safety, seems equally to exist
during the accessory employment of testing: and any duty to provide for
the safety of the master workman, seems equally owing to the servant
workman whom he may lawfully send in his place.

It is observable, that, in the case of Southcote _v._ Stanley, 1 H. & N.
247, 25 L. J. (Ex.) 339, upon which much reliance was properly placed
for the defendant, Alderson, B., drew the distinction between a bare
licensee and a person coming on business, and Bramwell, B., between
active negligence in respect of unusual danger known to the host and not
to the guest, and a bare defect of construction or repair, which the
host was only negligent in not finding out or anticipating the
consequence of.

There is considerable resemblance, though not a strict analogy, between
this class of cases and those founded upon the rule as to voluntary
loans and gifts, that there is no remedy against the lender or giver for
damage sustained from the loan or gift, except in case of unusual danger
known to and concealed by the lender or giver. Macarthy _v._ Younge, 6
H. & N. 329, 30 L. J. (Ex.) 227. The case of the carboy of vitriol[151]
was one in which this Court held answerable the bailor of an unusually
dangerous chattel, the quality of which he knew, but did not tell the
bailee, who did not know it, and, who as a proximate consequence of his
not knowing, and without any fault on his part, suffered damage.

The cases referred to as to the liability for accidents to servants and
persons employed in other capacities in a business or profession which
necessarily and obviously exposes them to danger, as in Seymour _v._
Maddox, 16 Q. B. 326, also have their special reasons. The servant or
other person so employed is supposed to undertake not only all the
ordinary risks of the employment into which he enters, but also all
extraordinary risks which he knows of and thinks proper to incur,
including those caused by the misconduct of his fellow-servants, not
however including those which can be traced to mere breach of duty on
the part of the master. In the case of a statutory duty to fence, even
the knowledge and reluctant submission of the servant who has sustained
an injury, are held to be only elements in determining whether there has
been contributory negligence: how far this is the law between master and
servant, where there is danger known to the servant, and no statute for
his protection, we need not now consider, because the plaintiff in this
case was not a servant of the defendant, but the servant of the
patentee. The question was adverted to, but not decided, in Clarke _v._
Holmes, 7 H. & N. 937, 31 L. J. (Ex.) 356.[152]

The authorities respecting guests and other bare licensees, and those
respecting servants and others who consent to incur a risk, being
therefore inapplicable, we are to consider what is the law as to the
duty of the occupier of a building with reference to persons resorting
thereto in the course of business, upon his invitation, express or
implied. The common case is that of a customer in a shop: but it is
obvious that this is only one of a class; for, whether the customer is
actually chaffering at the time, or actually buys or not, he is,
according to an undoubted course of authority and practice, entitled to
the exercise of reasonable care by the occupier to prevent damage from
unusual danger, of which the occupier knows or ought to know, such as a
trap-door left open, unfenced, and unlighted: Lancaster Canal Company
_v._ Parnaby, 11 Ad. & E. 223, 3 P. & D. 162; _per cur._ Chapman _v._
Rothwell, E. B. & E. 168, 27 L. J. (Q. B.) 315, where Southcote _v._
Stanley, 1 H. & N. 247, 25 L. J. (Ex.) 339, was cited, and the Lord
Chief Justice, then Erle, J., said: “The distinction is between the case
of a visitor (as the plaintiff was in Southcote _v._ Stanley), who must
take care of himself, and a customer, who, as one of the public, is
invited for the purposes of business carried on by the defendant.” This
protection does not depend upon the fact of a contract being entered
into in the way of the shopkeeper’s business during the stay of the
customer, but upon the fact that the customer has come into the shop in
pursuance of a tacit invitation given by the shopkeeper, with a view to
business which concerns himself. And, if a customer were, after buying
goods, to go back to the shop in order to complain of the quality, or
that the change was not right, he would be just as much there upon
business which concerned the shopkeeper, and as much entitled to
protection during this accessory visit, though it might not be for the
shopkeeper’s benefit, as during the principal visit, which was. And if,
instead of going himself, the customer were to send his servant, the
servant would be entitled to the same consideration as the master.

The class to which the customer belongs includes persons who go not as
mere volunteers, or licensees, or guests, or servants, or persons whose
employment is such that danger may be considered as bargained for, but
who go upon business which concerns the occupier, and upon his
invitation, express or implied.

And, with respect to such a visitor at least, we consider it settled
law, that he, using reasonable care on his part for his own safety, is
entitled to expect that the occupier shall on his part use reasonable
care to prevent damage from unusual danger which he knows or ought to
know; and that, where there is evidence of neglect, the question whether
such reasonable care has been taken, by notice, lighting, guarding or
otherwise, and whether there was contributory negligence in the
sufferer, must be determined by a jury as matter of fact.

In the case of Wilkinson _v._ Fairrie, 1 H. & C. 633, 32 L. J. (Ex.) 73,
relied upon for the defendant, the distinction was pointed out between
ordinary accidents, such as falling down stairs, which ought to be
imputed to the carelessness or misfortune of the sufferer, and accidents
from unusual, covert danger, such as that of falling down into a pit.

It was ably insisted for the defendant that he could only be bound to
keep his place of business in the same condition as other places of
business of the like kind, according to the best known mode of
construction. And this argument seems conclusive to prove that there was
no absolute duty to prevent danger, but only a duty to make the place as
little dangerous as such a place could reasonably be, having regard to
the contrivances necessarily used in carrying on the business. But we
think the argument is inapplicable to the facts of this case: first,
because it was not shown, and probably could not be, that there was any
usage never to fence shafts; secondly, because it was proved, that, when
the shaft was not in use, a fence might be resorted to without
inconvenience; and no usage could establish that what was in fact
unnecessarily dangerous was in law reasonably safe, as against persons
towards whom there was a duty to be careful.

Having fully considered the notes of the Lord Chief Justice, we think
there was evidence for the jury that the plaintiff was in the place by
the tacit invitation of the defendant, upon business in which he was
concerned; that there was by reason of the shaft unusual danger known to
the defendant; and that the plaintiff sustained damage by reason of that
danger, and of the neglect of the defendant and his servants to use
reasonably sufficient means to avert or warn him of it: and we cannot
say that the proof of contributory negligence was so clear that we ought
on this ground to set aside the verdict of the jury.

As for the argument that the plaintiff contributed to the accident by
not following his guide, the answer may be that the guide, knowing the
place, ought rather to have waited for him; and this point, as matter of
fact, is set at rest by the verdict.

For these reasons, we think there was evidence of a cause of action in
respect of which the jury were properly directed; and, as every
reservation of leave to enter a nonsuit carries with it an implied
condition that the Court may amend, if necessary, in such a manner as to
raise the real question, leave ought to be given to the plaintiff, in
the event of the defendant desiring to appeal or to bring a writ of
error, to amend the declaration by stating the facts as proved,—in
effect, that the defendant was the occupier of and carried on business
at the place; that there was a shaft, very dangerous to persons in the
place, which the defendant knew and the plaintiff did not know; that the
plaintiff, by invitation and permission of the defendant, was near the
shaft, upon business of the defendant, in the way of his own craft as a
gas-fitter, for hire, &c., stating the circumstances, the negligence,
and that by reason thereof the plaintiff was injured. The details of the
amendment can, if necessary, be settled at chambers.

As to the motion to arrest the judgment, for the reasons already given,
and upon condition that an amendment is to be made if and when required
by the defendant, it will follow the fate of the motion to enter a
nonsuit.

The other arguments for the defendant, to which we have not particularly
adverted, were no more than objections to the verdict as being against
the evidence: but it would be wrong to grant a new trial without a
reasonable expectation that another jury might take a different view of
the facts; and, as the Lord Chief Justice does not express any
dissatisfaction with the verdict, the rule upon this, the only remaining
ground, must also be discharged.

                                                 _Rule discharged._[153]

Affirmed in Exchequer Chamber, L. R. 2 C. P. 311.


                McNEE _v._ COBURN TROLLEY TRACK COMPANY
       SUPREME JUDICIAL COURT, MASSACHUSETTS, FEBRUARY 24, 1898.
             _Reported in 170 Massachusetts Reports, 283._

Tort, for personal injuries occasioned to the plaintiff by the fall of
an elevator upon which he was riding while in the defendant’s employ.
Trial in the Superior Court, before Mason, C. J., who directed the jury
to return a verdict for the defendant; and reported the case for the
determination of this court. If the case should have been submitted to
the jury, judgment was to be entered for the plaintiff in a sum named;
otherwise, judgment on the verdict. The facts sufficiently appear in the
opinion.

The case was submitted on briefs to all the justices.

ALLEN, J. The general condition of the elevator was such that a jury
might find that the defendant would be negligent in continuing its use
for carrying workmen up and down while engaged in their work, if this
was done without warning them of the risk. It is true that the
particular defect which caused the accident was not open to observation
or easy to discover. But there was evidence tending to show that the
accident was caused by the use of the elevator while it was in a
condition which rendered it unsuitable for use, and that the defendant
was fairly put upon inquiry as to its safety; and that the defendant’s
duty in this respect was different from and greater than that of the
workmen themselves.

The question then remains whether the posting of the notices in the
elevator[154] showed such a performance by the defendant of its duty of
warning or cautioning the workmen, or such contributory negligence or
assumption of the risk on the part of the plaintiff, as to entitle the
defendant to have the case withdrawn from the jury. While upon the
evidence reported a verdict for the defendant would be more
satisfactory, we are unable to hold that the defendant was entitled to
such verdict as a matter of law. As a general rule, the sufficiency of
such warning or caution is a question of fact for the jury. Indermaur
_v._ Dames, L. R. 1 C. P. 274; S. C. L. R. 2 C. P. 311. It is true that
the plaintiff was not at liberty to shut his eyes in order to avoid
reading a plain notice of warning. If it be assumed that the plaintiff
must be held chargeable with a knowledge of the contents of the notice,
or at least that the defendant performed its duty of cautioning the
workmen by posting the notices in the elevator, we think the plaintiff
still had the right to go to the jury upon the question whether the
notices remained in force at the time of the accident, or had become a
dead letter. There was evidence tending to show that the notices were
put in the elevator a long time before the accident by a former
treasurer whose connection with the company had then ceased, that they
had become soiled and somewhat indistinct and torn, and that all of the
defendant’s workmen, including the general superintendent of the
building, were in the regular habit of using the elevator to carry them
up and down, and had been so for some months prior to the accident.
There was room for a legitimate argument that the defendant could not
have intended to keep such a rule in force forever, and to furnish an
elevator for permanent use by the men at their own sole risk; and that
the defendant expected the men to use it while they were engaged in its
work, and that it was for the defendant’s advantage that they should do
so, from the saving of time thereby secured. It might be found that the
plaintiff, even if he knew of the terms of the notice, might
nevertheless assume that its force had ceased.

If one who has posted a notice of entire prohibition permits it to be
habitually disregarded, as, for instance, a notice not to ride on the
platform of a street railway car, or in the baggage car of a train, a
practical invitation to violate it may be inferred from habitual usage
which is known to him. Long continued practice to the contrary may have
the effect to supersede or show a waiver of the rule. O’Donnell _v._
Allegheny Valley Railroad, 59 Penn. St. 239; Pennsylvania Railroad _v._
Langdon, 92 Penn. St. 21; Waterbury _v._ New York Central & Hudson River
Railroad, 17 Fed. Rep. 671. The notice in the present case was not one
of entire prohibition, but, in the opinion of a majority of the court,
the plaintiff upon the evidence had a right to go to the jury upon the
question whether it still remained in force; and, according to the terms
of the report, there must be

                                      _Judgment for the plaintiff._[155]


                GARFIELD COAL CO. _v._ ROCKLAND LIME CO.
         SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 23, 1903.
              _Reported in 184 Massachusetts Reports, 60._

Tort, by the owner of the coal barge Western Belle, for injury to that
vessel by grounding on a ledge of rock embedded in the mud at the bottom
of the defendant’s dock at Rockland, Maine.

In the Superior Court the case was tried by a judge without a jury.

“It appeared at the trial that defendant was part owner of a dock, and
used it for the discharge of cargoes of coal consigned to it. Plaintiff
had sold coal to the defendant, and sent it a barge loaded
therewith.”[156]

The plaintiff requested the judge to make certain rulings, including the
following:—

“4. It is not necessary for the plaintiff to show that the defendant
knew of the ledge; it is sufficient if its existence could have been
discovered by reasonable diligence.”

The judge refused to make any of the rulings, and found for the
defendant. The plaintiff excepted.

LATHROP, J.... The general rules of law which are applicable in cases of
this character are the same in England and in this country, and are the
same at common law and in admiralty. They are as well stated in the case
of Nickerson _v._ Tirrell, 127 Mass. 236, 239, as perhaps in any case:
“The owner or occupant of a dock is liable in damages to a person who,
by his invitation express or implied, makes use of it, for an injury
caused by any defect or unsafe condition of the dock which the occupant
negligently causes or permits to exist, if such person was himself in
the exercise of due care. Such occupant is not an insurer of the safety
of his dock,[157] but he is required to use reasonable care to keep his
dock in such a state as to be reasonably safe for use by vessels which
he invites to enter it, or for which he holds it out as fit and ready.
If he fails to use such due care, if there is a defect which is known to
him, or which by the use of ordinary care and diligence should be known
to him, he is guilty of negligence and liable to the person who, using
due care, is injured thereby. Wendell _v._ Baxter, 12 Gray, 494;
Carleton _v._ Franconia Iron & Steel Co., 99 Mass. 216; Thompson _v._
Northeastern Railway, 2 B. & S. 106; Mersey Docks _v._ Gibbs, L. R. 1 H.
L. 93.” Other cases bearing upon this point are: Smith _v._ Burnett, 173
U. S. 430; Barber _v._ Abendroth, 102 N. Y. 406; Barrett _v._ Black, 56
Maine, 498; Sawyer _v._ Oakman, 1 Lowell, 134, s. c. 7 Blatchf. 290; The
John A. Berkman, 6 Fed. Rep. 535; Pennsylvania Railroad _v._ Atha, 22
Fed. Rep. 920; Smith _v._ Havemeyer, 36 Fed. Rep. 927; Manhattan
Transportation Co. _v._ Mayor, 37 Fed. Rep. 160; Union Ice Co. _v._
Crowell, 55 Fed. Rep. 87. The rule is the same in England. Gibbs _v._
Liverpool Docks, 3 H. & N. 164; s. c. _nom._ Mersey Docks _v._ Gibbs, 11
H. L. Cas. 686, and L. R. 1 H. L. 93; The Moorcock, 13 P. D. 157, and 14
P. D. 64.

                  *       *       *       *       *

It is clear that the vessel was in the defendant’s dock on business, and
was, therefore, there by invitation. The judge has found, and the
evidence shows, that the injury was caused by a ledge of rocks embedded
in the mud at the bottom of the dock. The questions of fact which he did
not pass upon are whether the master was in the exercise of due care,
and whether the defendant knew of the defect or could by the exercise of
reasonable care and diligence have ascertained its existence.

                  *       *       *       *       *

The fourth request should have been given. See cases cited above.

                                            _Exceptions sustained._[158]


            INDIANAPOLIS STREET RAILWAY COMPANY _v._ DAWSON
              APPELLATE COURT, INDIANA, NOVEMBER 17, 1903.
         _Reported in 31 Indiana Appellate Court Reports, 605._

From Superior Court of Marion County; Vincent G. Clifford, Special
Judge.

Action by George J. Dawson against the Indianapolis Street Railway
Company. From a judgment for plaintiff, defendant appeals.

ROBY, J. Action by appellee. Verdict and judgment for $500. Demurrers to
first and second paragraphs of complaint overruled. Motion for a new
trial overruled.

It is averred in the first paragraph of complaint, in substance, as
extracted from a multitude of words, that appellant was on August 25,
1901, a corporation operating a street railway system in Indianapolis
and was a common carrier for hire; that it owned a park near said city,
and maintained certain attractions therein to induce persons to ride on
its cars, inviting them to said park; that on the day named it gave a
free band concert therein, the same having been extensively advertised
prior thereto; that on said day appellee, accompanied by a lady, took
passage upon one of its regular cars, and was conveyed to said park;
that a large number of persons were daily transported thereto, among
them a large number of lawless persons who were hostile to colored
people, of whom appellee was one, their names being unknown to
plaintiff, and who had long before said day entered into a conspiracy
“to suppress, molest, assault, and insult colored people generally who
might visit said park;” that in pursuance of such conspiracy said
persons assaulted and beat appellee, and drove him from the park; that
he and his companion demeaned themselves in a ladylike and gentlemanly
manner, but upon arriving at the park were set upon by a large number of
white boys and young men, appellee being assaulted and beaten by them;
that appellant had, and had had for a long time prior to said day, full
notice and knowledge of said conditions, and of the unlawful purposes
aforesaid, and of acts of violence committed thereunder, but took no
steps to prevent such conduct; that early in the afternoon of said day
said lawless men and boys began marching and drilling openly in said
park preparatory to an attack upon any colored male person who should be
found there later, appellant taking no steps to prevent such conduct or
to notify colored people of the danger, although it had knowledge
thereof; that neither appellant nor its officers made any objection to
the open and notorious gathering of white men and boys for the unlawful
purpose stated; that it was negligent and indifferent in not employing
and using a sufficient number of guards and policemen to maintain the
peace; that two of its guards or policemen aided and abetted the wrong
done appellee by standing by when he was being unmercifully beaten by
said crowd of lawless white men and boys, and offering him no
assistance, although they were able to do so, and could have prevented
injury to him. “Wherefore, by reason of the matters therein stated, the
plaintiff has been damaged,” etc. The second paragraph of complaint is
somewhat more extended than the first one, but for the purpose of this
opinion the statement made is sufficient.

The pleading charges appellant with notice of the alleged conspiracy,
with acquiescence therein, and, by its guards or policemen, with passive
participation in the actual assault made upon appellee. “When one
expressly or by implication invites others to come upon his premises,
whether for business or any other purpose, it is his duty to be
reasonably sure that he is not inviting them into danger, and to that
end he must exercise ordinary care and prudence to render the place
reasonably safe for the visit.” Cooley, Torts (2d ed.), 718; Howe _v._
Ohmart, 7 Ind. App. 32, 38; Richmond, etc., R. Co. _v._ Moore, 94 Va.
493, 37 L. R. A. 258; North Manchester, etc., Assn. _v._ Wilcox, 4 Ind.
App. 141; Penso _v._ McCormick, 125 Ind. 116, 21 Am. St. 211.

No case has been cited or found where the premises upon which the injury
complained of occurred, and to which the complainant came by invitation,
were made unsafe through a conspiracy of the nature set up herein.
Danger usually has been attributed to some defect in the premises
themselves. But as a matter of principle it is quite as reprehensible to
invite one knowing an enemy is awaiting him with the intent to assault
and beat him as it would be to invite him without having made the floor
or the stairway secure. One attending an agricultural fair in response
to a general invitation extended to the public has been awarded damages
against the association where his horse was killed by target shooting
upon a part of the ground allowed for such purpose. Conradt _v._ Clauve,
93 Ind. 476, 47 Am. Rep. 388.

Recoveries have also been sustained: When spectators rushed upon a
race-track, causing a collision between horses being driven thereon.
North Manchester, etc., Assn. _v._ Wilcox, 4 Ind. App. 141. When an
opening was left in a fence surrounding a race-track through which one
of the horses, running, went among the spectators. Windeler _v._ Rush
County Fair Assn., 27 Ind. App. 92. Where horses were started on a
race-track in opposite directions at the same time, causing collision.
Fairmount, etc., Assn. _v._ Downey, 146 Ind. 503. Where a horse with a
vicious habit of track bolting was permitted to run in a race, such
horse bolting the track, causing injury. Lane _v._ Minnesota, etc.,
Soc., 62 Minn. 175, 29 L. R. A. 708. Recognizing the rule of reasonable
care to make the premises safe, a recovery was denied in the absence of
any evidence of the immediate cause of a horse running through the
crowds. Hart _v._ Washington Park Club, 157 Ill. 9, 29 L. R. A. 492.
Where a street car company maintained a park as a place of attraction
for passengers over its line, the falling of a pole used by one making a
balloon ascension, under a contract, injuring a bystander, recovery was
allowed, the rule being announced that the company must use proper care
to protect its patrons from danger while on its grounds. Richmond, etc.,
R. Co. _v._ Moore, 94 Va. 493, 37 L. R. A. 258. Where a street car
company maintained a large stage for exhibitions, in a pleasure resort
owned by it, and made a written contract with a manager, by which the
latter furnished various entertainments, among which was target
shooting, one injured by a split bullet was allowed to recover, it being
held that he might safely rely on those who provided the exhibition and
invited his attendance to take due care to make the place safe from such
injury as he received, the question of due care being one for the jury.
Thompson _v._ Lowell, etc., St. R. Co., 170 Mass. 577, 40 L. R. A. 345;
Curtis _v._ Kiley, 153 Mass. 123.

The duty of common carriers to protect their passengers from injury on
account of unlawful violence by persons not connected with their service
has frequently furnished material for judicial consideration. The New
Jersey Court of Errors and Appeals approved an exhaustive and carefully
considered opinion delivered by the Supreme Court of that State to the
effect that a passenger who, while attempting to have her baggage
checked, was knocked down and injured by cabmen, in no sense servants of
the carrier, scuffling on a passageway under its control, might recover
against it. Exton _v._ Central R. Co., 63 N. J. L. 356, 56 L. R. A. 508.
In what seems to have been a pioneer case, it was held by the Supreme
Court of Pennsylvania in 1866, that it was the duty of the trainmen on a
passenger-train to exert the forces at their disposal to prevent injury
to passengers by others fighting in the car. Pittsburgh, etc., R. Co.
_v._ Hinds, 53 Pa. St. 512. Ten years later the Supreme Court of
Mississippi, after very exhaustive arguments by eminent counsel of
national reputation, reached the same conclusion. New Orleans, etc., R.
Co. _v._ Burke, 53 Miss. 200.

Without further elaboration it may safely be said that the unusual
character of an alleged peril, from which it is averred the appellant
did not use due care to protect its visitors, does not affect the right
of recovery, it being otherwise justified. The demurrers were therefore
correctly overruled.

Evidence was introduced of other prior assaults at said park upon
colored persons, and articles previously published by daily newspapers
in the city describing such occurrences were also admitted. In order to
determine whether appellant used due care, it was essential to show its
knowledge or means of information relative to the conditions alleged to
exist, rendering it dangerous for appellee to visit the park. The
evidence of similar occurrences was competent as tending to show notice
of the conditions. Toledo, etc., R. Co. _v._ Milligan, 2 Ind. App. 578;
City of Delphi _v._ Lowery, 74 Ind. 520, 39 Am. Rep. 98; City of Goshen
_v._ England, 119 Ind. 368, 375.

The facts upon which appellant’s liability depends otherwise than
heretofore considered were questions for the determination of the jury.
There was evidence tending to establish, and from which the jury might
properly find, the existence of such facts.

Appellant and its officers appear to have displayed indifference to the
conditions existing which it and they could not well help knowing. This
may have been due to the idea, sometimes entertained, that as to acts of
lawlessness it is a sufficient duty of citizenship to be indifferent.
Such idea is entirely erroneous.

                                               _Judgment affirmed._[159]


                SWEENY _v._ OLD COLONY RAILROAD COMPANY
       SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY TERM, 1865.
                      _Reported in 10 Allen, 368._

Tort to recover damages for a personal injury sustained by being run
over by the defendants’ cars, while the plaintiff was crossing their
railroad by license, on a private way leading from South Street to
Federal Street, in Boston.

At the trial in this Court, before Chapman, J., it appeared that this
private way, which is called Lehigh Street, was made by the South Cove
Corporation for their own benefit, and that they own the fee of it; that
it is wrought as a way, and buildings are erected on each side of it,
belonging to the owners of the way, and there has been much crossing
there by the public for several years. The defendants, having rightfully
taken the land under their charter, not subject to any right of way,
made a convenient plank-crossing and kept a flagman at the end of it on
South Street, partly to protect their own property, and partly to
protect the public. They have never made any objection to such crossing,
so far as it did not interfere with their cars and engines. There are
several tracks at the crossing. The only right of the public to use the
crossing is under the license implied by the facts stated above.

On the day of the accident, the defendants had a car at their depot
which they had occasion to run over to their car house. It was attached
to an engine and taken over the crossing, and to a proper distance
beyond the switch. The coupling-pin was then taken out, the engine
reversed, and it was moved towards the car house by the side track. The
engine was provided with a good engineer and fireman, and the car with a
brakeman; the bell was constantly rung, and the defendants were not
guilty of any negligence in respect to the management of the car or
engine.

As the engine and car were coming from the depot, the plaintiff, with a
horse and a wagon loaded with empty beer barrels, was coming down South
Street from the same direction. There was evidence tending to show that,
as he approached the crossing, the flagman, who was at his post, made a
signal to him with his flag to stop, which he did; that, in answer to an
inquiry by the plaintiff whether he could then cross, he then made
another signal with his flag, indicating that it was safe to cross; that
the plaintiff started and attempted to cross, looking straight forward;
that he saw the car coming near him as it went towards the car house;
and that he jumped forward from his wagon, and the car knocked him down
and ran over him and broke both his legs. It struck the fore-wheel of
his wagon and also his horse. If he had remained in his wagon, or had
not jumped forwards, or had kept about the middle of the crossing, the
evidence showed that he would not have been injured personally. His
wagon was near the left-hand side of the plank-crossing as he went.

The defendants contended that, even if the plaintiff used ordinary care,
and if the flagman carelessly and negligently gave the signal that he
might cross, when in fact it was unsafe to do so on account of the
approaching car, the plaintiff was not entitled to recover, because the
license to people to use the crossing was not a license to use it at the
risk of the defendants, but to use it as they best could when not
forbidden, taking care of their own safety, and going at their own risk;
and also, that if the flagman made a signal to the plaintiff that he
might cross, he exceeded his authority.

But the evidence being very contradictory as to the care used by the
plaintiff, and also as to the care used by the flagman, the judge ruled,
for the purpose of taking a verdict upon these two facts, that the
defendants had a right to use the crossing as they did on this occasion,
and that they were not bound to keep a flagman there; yet, since they
did habitually keep one there, they would be responsible to the
plaintiff for the injury done to him by the car, provided he used due
care, if he was induced to cross by the signal made to him by the
flagman, and if that signal was carelessly or negligently made at a time
when it was unsafe to cross on account of the movement of the car.

The jury returned a verdict for the plaintiff for $7500; and the case
was reserved for the consideration of the whole Court.

_J. G. Abbott_ and _P. H. Sears_, for the defendants. The defendants
had, for all purposes incident to the complete enjoyment of their
franchise, the right of exclusive possession and use of the place where
the accident happened, against the owners of the fee, and still more
against all other persons. Hazen _v._ Boston & Maine Railroad, 2 Gray,
574; Brainard _v._ Clapp, 10 Cush. 6; Gen. Stat. c. 63, §§ 102, 103. The
defendants were not bound to keep a flagman there, or exercise the other
precautions prescribed for the crossing of highways or travelled places.
Gen. Stat. c. 63, §§ 64–66, 83–91; Boston & Worcester Railroad _v._ Old
Colony Railroad, 12 Cush. 608. The license or permission, if any, to the
plaintiff to pass over the premises did not impose any duty on the
defendants, but he took the permission, with its concomitant perils, at
his own risk. Howland _v._ Vincent, 10 Met. 371, 374; Scott _v._ London
Docks Co., 11 Law Times (N. S.), 383; Chapman _v._ Rothwell, El. Bl. &
El. 168; Southcote _v._ Stanley, 1 Hurlst. & Norm. 247; Hounsell _v._
Smyth, 7 C. B. (N. S.) 729, 735, 742; Binks _v._ South Yorkshire
Railway, &c., 32 Law Journ. (N. S.) Q. B. 26; Blithe _v._ Topham, 1 Rol.
Ab. 88; S. C. 1 Vin. Ab. 555, pl. 4; Cro. Jac. 158. The defendants did
not hold out to the plaintiff an invitation to pass over. Hounsell _v._
Smyth and Binks _v._ South Yorkshire Railway, above cited. The allowing
or making of such private crossing was not in itself such an invitation,
and did not involve the duty of such precautions. The keeping of a
flagman there was wholly for the purpose of preventing persons from
crossing, not for the purpose of holding out invitations at any time.
The signal that the plaintiff might cross was in answer to his inquiry,
and was, at most, only revoking the prohibition, or granting permission;
it was not holding out an invitation. The duty of the flagman was simply
to warn persons against crossing; and if the flagman held out an
invitation or even gave permission to the plaintiff to cross, he went
beyond the scope of his employment, and the defendants are not liable on
account thereof. Lygo _v._ Newbold, 9 Exch. 203; Middleton _v._ Fowle, 1
Salk. 282. Even if the defendants had carelessly held out an invitation
to the plaintiff to cross, still they would not be liable; for the
report shows that after such supposed invitation the plaintiff might, by
the exercise of ordinary care, have avoided the injury; that the
plaintiff was himself at the time in the wrong; and that his own
negligence and fault contributed to the accident. Todd _v._ Old Colony &
Fall River Railroad, 7 Allen, 207; S. C. 3 Allen, 18, and cases cited;
Denny _v._ Williams, 5 Allen, 1, and cases cited; Spofford _v._ Harlow,
3 Allen, 177, and cases cited.

BIGELOW, C. J. This case has been presented with great care on the part
of the learned counsel for the defendants, who have produced before us
all the leading authorities bearing on the question of law which was
reserved at the trial. We have not found it easy to decide on which side
of the line which marks the limit of the defendant’s liability for
damages caused by the acts of their agents, the case at bar falls. But
on careful consideration we have been brought to the conclusion that the
rulings at the trial were right, and that we cannot set aside the
verdict for the plaintiff on the ground that it was based on erroneous
instructions in matter of law.

In order to maintain an action for an injury to person or property by
reason of negligence or want of due care, there must be shown to exist
some obligation or duty towards the plaintiff, which the defendant has
left undischarged or unfulfilled. This is the basis on which the cause
of action rests. There can be no fault, or negligence, or breach of
duty, where there is no act, or service, or contract, which a party is
bound to perform or fulfil. All the cases in the books, in which a party
is sought to be charged on the ground that he has caused a way or other
place to be incumbered or suffered it to be in a dangerous condition,
whereby accident and injury have been occasioned to another, turn on the
principle that negligence consists in doing or omitting to do an act by
which a legal duty or obligation has been violated. Thus a trespasser
who comes on the land of another without right cannot maintain an
action, if he runs against a barrier or falls into an excavation there
situated. The owner of the land is not bound to protect or provide
safeguards for wrong-doers. So a licensee, who enters on premises by
permission only, without an enticement, allurement, or inducement being
held out to him by the owner or occupant, cannot recover damages for
injuries caused by obstructions or pitfalls. He goes there at his own
risk, and enjoys the license subject to its concomitant perils. No duty
is imposed by law on the owner or occupant to keep his premises in a
suitable condition for those who come there solely for their own
convenience or pleasure, and who are not either expressly invited to
enter or induced to come upon them by the purpose for which the premises
are appropriated and occupied, or by some preparation or adaptation of
the place for use by customers or passengers, which might naturally and
reasonably lead them to suppose that they might properly and safely
enter thereon.

On the other hand, there are cases where houses or lands are so
situated, or their mode of occupation and use is such, that the owner or
occupant is not absolved from all care for the safety of those who come
on the premises, but where the law imposes on him an obligation or duty
to provide for their security against accident and injury. Thus the
keeper of a shop or store is bound to provide means of safe ingress and
egress to and from his premises for those having occasion to enter
thereon, and is liable in damages for any injury which may happen by
reason of any negligence in the mode of constructing or managing the
place of entrance and exit. So the keeper of an inn or other place of
public resort would be liable to an action in favor of a person who
suffered an injury in consequence of an obstruction or defect in the way
or passage which was held out and used as the common and proper place of
access to the premises. The general rule or principle applicable to this
class of cases is, that an owner or occupant is bound to keep his
premises in a safe and suitable condition for those who come upon and
pass over them, using due care, if he has held out any invitation,
allurement, or inducement, either express or implied, by which they have
been led to enter thereon. A mere naked license or permission to enter
or pass over an estate will not create a duty or impose an obligation on
the part of the owner or person in possession to provide against the
danger of accident. The gist of the liability consists in the fact that
the person injured did not act merely for his own convenience and
pleasure, and from motives to which no act or sign of the owner or
occupant contributed, but that he entered the premises because he was
led to believe that they were intended to be used by visitors or
passengers, and that such use was not only acquiesced in by the owner or
person in possession and control of the premises, but that it was in
accordance with the intention and design with which the way or place was
adapted and prepared or allowed to be so used. The true distinction is
this: A mere passive acquiescence by an owner or occupier in a certain
use of his land by others involves no liability; but if he directly or
by implication induces persons to enter on and pass over his premises,
he thereby assumes an obligation that they are in a safe condition,
suitable for such use, and for a breach of this obligation he is liable
in damages to a person injured thereby.

This distinction is fully recognized in the most recent and best
considered cases in the English Courts, and may be deemed to be the
pivot on which all cases like the one at bar are made to turn. In Corby
_v._ Hill, 4 C. B. (N. S.) 556, the owner of land, having a private road
for the use of persons coming to his house, gave permission to a builder
engaged in erecting a house on the land to place materials on the road;
the plaintiff, having occasion to use the road for the purpose of going
to the owner’s residence, ran against the materials and sustained
damage, for which the owner was held liable. Cockburn, C. J., says: “The
proprietors of the soil held out an allurement whereby the plaintiff was
induced to come on the place in question; they held this road out to all
persons having occasion to proceed to the house as the means of access
thereto.” In Chapman _v._ Rothwell, El. Bl. & El. 168, the proprietor of
a brewery was held liable in damages for injury and loss of life caused
by permitting a trap-door to be open without sufficient light or proper
safeguards, in a passageway through which access was had from the street
to his office. This decision was put on the ground that the defendant,
by holding out the passageway as the proper mode of approach to his
office and brewery, invited the party injured to go there, and was bound
to use due care in providing for his safety. This is the point on which
the decision turned, as stated by Keating, J., in Hounsell _v._ Smyth, 7
C. B. (N. S.) 738. In the last-named case the distinction is clearly
drawn between the liability of a person who holds out an inducement or
invitation to others to enter on his premises by preparing a way or path
by means of which they can gain access to his house or store, or pass
into or over the land, and in a case where nothing is shown but a bare
license or permission tacitly given to go upon or through an estate, and
the responsibility of finding a safe and secure passage is thrown on the
passenger and not on the owner. The same distinction is stated in Barnes
_v._ Ward, 9 C. B. 392; Hardcastle _v._ South Yorkshire Railway, &c., 4
Hurlst. & Norm. 67; and Binks _v._ South Yorkshire Railway, &c., 32 Law
Journ. (N. S.) Q. B. 26. In the last cited case the language of
Blackburn, J., is peculiarly applicable to the case at bar. He says,
“There might be a case where permission to use land as a path may amount
to such an inducement as to lead the persons using it to suppose it a
highway, and thus induce them to use it as such.” See also, for a clear
statement of the difference between cases where an invitation or
allurement is held out by the defendant, and those where nothing appears
but a mere license or permission to enter on premises, Bolch _v._ Smith,
7 Hurlst. & Norm. 741, and Scott _v._ London Docks Co., 11 Law Times (N.
S.), 383.

The facts disclosed at the trial of the case now before us, carefully
weighed and considered, bring it within that class in which parties have
been held liable in damages by reason of having held out an invitation
or inducement to persons to enter upon and pass over their premises. It
cannot in any just view of the evidence be said that the defendants were
passive only, and gave merely a tacit license or assent to the use of
the place in question as a public crossing. On the contrary, the place
or crossing was situated between two streets of the city (which are much
frequented thoroughfares), and was used by great numbers of people who
had occasion to pass from one street to the other, and it was fitted and
prepared by the defendants with a convenient plank-crossing, such as is
usually constructed in highways, where they are crossed by the tracks of
a railroad, in order to facilitate the passage of animals and vehicles
over the rails. It had been so maintained by the defendants for a number
of years. These facts would seem to bring the case within the principle
already stated, that the license to use the crossing had been used and
enjoyed under such circumstances as to amount to an inducement, held out
by the defendants to persons having occasion to pass, to believe that it
was a highway, and to use it as such. But the case does not rest on
these facts only. The defendants had not only constructed and fitted the
crossing in the same manner as if it had been a highway, but they had
employed a person to stand there with a flag, and to warn persons who
were about to pass over the railroad when it was safe for them to
attempt to cross with the vehicles and animals, without interference or
collision with the engines and cars of the defendants. And it was also
shown that when the plaintiff started to go over the tracks with his
wagon, it was in obedience to a signal from this agent of the defendants
that there was no obstruction or hindrance to his safe passage over the
railroad. These facts well warranted the jury in finding, as they must
have done in rendering a verdict for the plaintiff under the
instructions of the Court, that the defendants induced the plaintiff to
cross at the time when he attempted to do so, and met with the injury
for which he now seeks compensation.

It was suggested that the person employed by the defendants to stand
near the crossing with a flag exceeded his authority in giving a signal
to the plaintiff that it was safe for him to pass over the crossing just
previously to the accident, and that no such act was within the scope of
his employment, which was limited to the duty of preventing persons from
passing at times when it was dangerous to do so. But it seems to us that
this is a refinement and distinction which the facts do not justify. It
is stated in the report that the flagman was stationed at the place in
question, charged among other things with the duty of protecting the
public. This general statement of the object for which the agent was
employed, taken in connection with the fact that he was stationed at a
place constructed and used as a public way by great numbers of people,
clearly included the duty of indicating to persons when it was safe for
them to pass, as well as when it was prudent or necessary for them to
refrain from passing.

Nor do we think it can be justly said that the flagman in fact held out
no inducement to the plaintiff to pass. No express invitation need have
been shown. It would have been only necessary for the plaintiff to prove
that the agent did some act to indicate that there was no risk of
accident in attempting to pass over the crossing. The evidence at the
trial was clearly sufficient to show that the agent of the defendants
induced the plaintiff to pass, and that he acted in so doing within the
scope of the authority conferred on him. The question whether the
plaintiff was so induced was distinctly submitted to the jury by the
Court; nor do we see any reason for supposing that the instructions on
this point were misunderstood or misapplied by the jury. If they lacked
fulness, the defendants should have asked for more explicit
instructions. Certainly the evidence as reported well warranted the
finding of the jury on this point.

It was also urged that, if the defendants were held liable in this
action, they would be made to suffer by reason of the fact that they had
taken precautions to guard against accident at the place in question,
which they were not bound to use, and that the case would present the
singular aspect of holding a party liable for neglect in the performance
of a duty voluntarily assumed, and which was not imposed by the rules of
law. But this is by no means an anomaly. If a person undertakes to do an
act or discharge a duty by which the conduct of others may properly be
regulated and governed, he is bound to perform it in such manner that
those who rightfully are led to a course of conduct or action on the
faith that the act or duty will be duly and properly performed shall not
suffer loss or injury by reason of his negligence. The liability in such
cases does not depend on the motives or considerations which induced a
party to take on himself a particular task or duty, but on the question
whether the legal rights of others have been violated by the mode in
which the charge assumed has been performed.

The Court were not requested at the trial to withdraw the case from the
jury on the ground that the plaintiff had failed to show he was in the
exercise of due care at the time the accident happened. Upon the
evidence, as stated in the report, we cannot say, as matter of law, that
the plaintiff did not establish this part of his case.

                                              _Judgment on the verdict._

After the above decision was rendered, the verdict was set aside, by
CHAPMAN, J., as against the evidence.[160]


                          STEVENS _v._ NICHOLS
       SUPREME JUDICIAL COURT, MASSACHUSETTS, FEBRUARY 23, 1892.
             _Reported in 155 Massachusetts Reports, 472._

Tort, to recover for injuries occasioned to the plaintiff by driving
over a curbstone covered with snow in a private way controlled by the
defendants. At the trial in the Superior Court, Mason, C. J., at the
defendants’ request, ruled that, upon the pleadings and the plaintiff’s
opening, he could not maintain the action, and ordered a verdict for the
defendants; and the plaintiff alleged exceptions. The facts, so far as
material to the points decided, appear in the opinion.

_John L. Thorndike_, for the defendants.[161]

This case bears no resemblance to Holmes _v._ Drew, 151 Mass. 578, where
the defendant had constructed a brick sidewalk by the side of a public
street, partly on her own land and partly in the street, without any
line of separation, and so that the whole was apparently part of the
street, and the defendant clearly intended that it should be used as
part of the street. There is no similarity between such an addition to
the apparent width of a public street and the opening of a private
avenue or way out of a public street. The private way could not have
been, or intended to be, part of the public street, and the separation
between them was plain....

The absence of similarity between this case and Holmes _v._ Drew, 151
Mass. 578, has already been pointed out; but it is also submitted that
that case is the first in which it has ever been held that the owner of
land was under any obligation to make it safe for a person that was
allowed to come upon the land for his own convenience, and for a purpose
in which the owner had no interest, whether the owner gave his consent
in the form of a permission or in the form of what might, in common
language, be called an invitation. Such persons were called licensees,
and must take the land as they found it, subject only to this, that the
owner must not lead them into danger by “something like fraud.” Gautret
_v._ Egerton, L. R. 2 C. P. 371, 374–375; Reardon _v._ Thompson, 149
Mass. 267, 268; Pollock on Torts, 424–426....

But as regards persons coming upon land at the request, actual or tacit,
of the owner upon business or for a purpose in which the owner had an
_interest_, it was his duty to make it reasonably safe, and he was
liable for damages arising from a neglect of this duty. Indermaur _v._
Dames, L. R. 1 C. P. 274, 2 C. P. 311; Carleton _v._ Franconia Iron &
Steel Co., 99 Mass. 216 (rock by wharf at which vessel unloaded); The
Moorcock, 14 P. D. 64 (a similar case); Davis _v._ Central
Congregational Society, 129 Mass. 367 (plaintiff attending a conference
of churches at defendant’s meeting-house, an object in which both
parties had an interest; also, p. 371, “a dangerous place without
warning”); Pollock on Torts, 415–418.

It is this _common interest_, not the form of the license or invitation,
that creates the liability (Holmes _v._ North Eastern Ry. Co., L. R. 4
Ex. 254, 6 Ex. 123).

The distinction between these two classes of cases is that in one the
owner of the land has an interest in the person’s coming there, while in
the other the authority to come upon the land is a pure _gratuity_. It
is reasonable that the owner should undertake some duty in respect of
the condition of the land when he brings another person there for an
object in which he himself has an interest. But there is no reason why
he should undertake any such duty when he makes a gift of the privilege
of going upon his land. The privilege is only a gift, whether the owner
gives it because it is asked for, or whether he offers it first, or asks
or “invites” the other to accept it. It may in a sense be said that a
person is “induced” to go upon land by a license or permission of the
owner, but the real inducement is his own convenience. When the owner
asks him to walk over his land whenever it is agreeable to him, and he
goes there, he does so because it is agreeable to him, and not because
the owner asks him. He is in law a _licensee_ going upon the land for
his own convenience by the owner’s permission, and not a person brought
there for a purpose in which the owner has an interest.[162]

_Licensees_, however, have a right to expect that the owner will not
create a new danger while the license continues, and he is liable for
the consequences if he does create such a danger; _e. g._, by making an
excavation near a path, as in Oliver _v._ Worcester, 102 Mass. 489, 502,
or by placing an obstruction in an avenue, as in Corby _v._ Hill, 4 C.
B. N. S. 556, 567, or by carelessly throwing a keg into a passageway, as
in Corrigan _v._ Union Sugar Refinery, 98 Mass. 577, or by negligent
management of trains at a private crossing of a railway habitually used
by the public with the assent of the company, as in Sweeny _v._ Old
Colony Rld. Co., 10 Allen, 368; Murphy _v._ Boston & Albany Rld. Co.,
133 Mass. 121; Hanks _v._ Boston & Albany Rld. Co., 147 Mass. 495; Byrne
_v._ New York Central Rld. Co., 104 N. Y. 362; Swift _v._ Staten Island
Rld. Co., 123 N. Y. 645; Taylor _v._ Delaware & Hudson Canal Co., 113
Pa. St. 162, 175.

The principle of these cases is stated by Willes, J., in Gautret _v._
Egerton, L. R. 2 C. P., p. 373, as follows: “If I dedicate a way to the
public which is full of ruts and holes, the public must take it as it
is. If I dig a pit in it, I may be liable for the consequences; but, if
I do nothing, I am not.”

The same principle is alluded to in June _v._ Boston & Albany Rld. Co.,
153 Mass. p. 82, where the court speaks of “cases in which even
unintended damage done to a licensee by actively bringing force to bear
upon his person will stand differently from merely passively leaving
land in a dangerous condition.”

The cases above mentioned include all that are cited in Holmes _v._
Drew, 151 Mass. 580. In none of them is it held or suggested that the
railway company was liable for any defect or obstruction in the
crossing, or that the landowner was liable for any excavation or
obstruction existing when the permission was granted.

[After citing cases where the court said that some kind of inducement or
invitation was necessary to create a liability for want of care in
running trains.] But it was not suggested that the inducement or
invitation would create any liability for defects in the crossing itself
which the company gratuitously allowed the public to use.

[Referring to cases where there is implied license to the public to use
a crossing.] The probability known to the company that some one may be
there in pursuance of the license is treated ... as the ground of
liability in such cases for want of care in running trains.... But there
is nothing in any of the cases above mentioned tending to support the
proposition that the knowledge of the habitual use of the crossing,
pursuant to the implied permission, would create a liability for defects
in the crossing itself or impose any kind of duty to make it safe or
convenient.

                  *       *       *       *       *

Holmes _v._ Drew (151 Mass. 578) does not belong to either of the two
last classes of cases. The plaintiff (1) did not go there upon the
defendant’s land for any purpose in which the defendant was interested,
and (2) the defendant did nothing to make the place less safe than it
was when it was first opened to the public. The plaintiff was a
volunteer, going upon the defendant’s land with her full permission, but
entirely for his own convenience. These distinctions do not appear to
have been called to the attention of the court. The judgment, which is
very short, seems to proceed upon the ground that the defendant, by
paving a footway partly on her own land and allowing it to remain
apparently a part of the street, showed an _intention_ that it should be
used by foot passengers, and that this would amount to an _implied
invitation_, which imposed on her a duty to make it reasonably safe. If
this is to be taken literally, a permission ceases to be a _license_ if
it is _intended_ that it shall be used; and an invitation imposes the
same duty when it is given gratuitously for the pleasure of the donee as
when it is given for an object in which the giver has an interest; and
the owner of land that gives permission to cross his land can escape
liability only by proving that he did not _intend_ the permission to be
used. It is submitted that the authorities cited in that case do not
support this doctrine. Two of them are cases where the invitation was to
come upon the land for a purpose in which the owner had an interest, and
in the three others a licensee was injured by negligence in something
done after the license was given....

LATHROP, J. The declaration in this case, so far as material to the
questions presented at the argument, alleged that the defendants on the
day of the accident were, and had been for a long time, lessees and
occupants of an estate on Atlantic Avenue in Boston; that the defendants
maintained a way or street down by their premises, “leading out of said
Atlantic Avenue, and extending to other premises beyond; that said
street was in all particulars like the public streets of the city of
Boston, being paved with granite blocks, and having sidewalks, and to
all appearances was a public thoroughfare; that the defendants had
placed no sign or notice of any kind upon or about said street ... which
would give warning to the plaintiff or to the public that said street
was private property, or dangerous, but had erected a granite curbing
out into said street, extending one half the distance across the same,
on a line with the rear of their estate, said granite curbing being from
six to seven inches above the grade of the paving; that said obstruction
was dangerous both by day and by night to all persons who entered upon
or passed through said street; that on or about said day the plaintiff
had business that called him to the premises that lie beyond the estate
of the defendants on said street, and, supposing and assuming that said
street was a highway, and being induced by the acts and omissions of
these defendants to so suppose and assume, entered in and upon said
street to drive through the same; that said obstruction was covered by
snow at said time, and plaintiff was unable to see the same; and, while
in the exercise of due care, his sleigh struck said granite curbing,”
and he was thrown out and injured.

The opening of the plaintiff’s counsel added but little to the
declaration. It stated that “the snow lay perfectly level” where the
curbstone was; that the plaintiff was driving through the defendants’
way “into the way lying beyond, of which it was ... an extension,” to
reach the works of the company for which he was working. It also stated
that, before the defendants controlled the way under the written lease,
they owned the premises, erected the building, paved the way, and put in
the curbstone; “that ever since this building and other buildings had
been erected down there the public made use of that way, as they would
use any other street in the city; that is, as much as they had any
occasion to pass down there with teams or on foot.”

It does not appear that the plaintiff had any right in the way, unless
he had it as one of the public. There is no allegation or statement that
the plaintiff had ever used the way before, or that he knew the way was
paved, or noticed whether there was a sign or not. Indeed, if he was
then using the way for the first time, the fair inference would be, from
the statement of the condition of the snow, that the fact that the way
was paved was unknown to him until after the accident, and did not
operate as an inducement to enter the way. The declaration contained no
allegation as to any use by the public of the way, and the statement in
the opening of counsel, that the public made use of that way, was
qualified by the words, “that is, as much as they had any occasion to
pass down there with teams or on foot.” It is difficult to see how
vehicles of any description could, when the paving was sufficiently
visible to act as an inducement, go over that portion of the way which
the defendants controlled.

Without laying stress upon these points, we are of opinion that the
declaration and the opening of the plaintiff’s counsel do not show that
there was any breach on the part of the defendants of any duty which
they owed the plaintiff. The defendants were not obliged to put up a
sign notifying travellers on the public street that the passageway was
not a public way. Galligan _v._ Metacomet Manuf. Co., 143 Mass. 527;
Reardon _v._ Thompson, 149 Mass. 267; Redigan _v._ Boston & Maine
Railroad, _ante_, 44.[163]

Nor can the fact that the passageway was paved be considered an
invitation or inducement to the public to enter upon it for their own
convenience. The defendants have a right to pave it for their own use or
for the use of their customers. Johnson _v._ Boston & Maine Railroad,
125 Mass. 75; Heinlein _v._ Boston & Providence Railroad, 147 Mass. 136;
Reardon _v._ Thompson, 149 Mass. 267; Donnelly _v._ Boston & Maine
Railroad, 151 Mass. 210; Redigan _v._ Boston & Maine Railroad, _ante_,
44.

There was in this case no allegation and no statement that the
defendants had any knowledge that the public was using the passageway,
or of such a condition of things that it can be said that they must have
known of it. But if it be assumed that there was such use and such
acquiescence that a license might be implied, the plaintiff stands in no
better position. “The general rule is,” as stated by Mr. Justice Holmes
in Reardon _v._ Thompson, _ubi supra_, “that a licensee goes upon land
at his own risk, and must take the premises as he finds them.” See also
Redigan _v._ Boston & Maine Railroad, _ante_, 44; Gautret _v._ Egerton,
L. R. 2 C. P. 371, 374.

The licensor has, however, no right to create a new danger while the
license continues. Oliver _v._ Worcester, 102 Mass. 489, 502; Corrigan
_v._ Union Sugar Refinery, 98 Mass. 577; Corby _v._ Hill, 4 C. B. (N.
S.) 556. So a railroad company which allows the public habitually to use
a private crossing of its tracks cannot use active force against a
person or vehicle crossing under a license, express or implied. Sweeny
_v._ Old Colony & Newport Railroad, 10 Allen, 368; Murphy _v._ Boston &
Albany Railroad, 133 Mass. 121; Hanks _v._ Boston & Albany Railroad, 147
Mass. 495. See June _v._ Boston & Albany Railroad, 153 Mass. 79, 82.

We have no occasion to consider whether the case of Holmes _v._ Drew,
151 Mass. 578, is open to the criticism that it is inconsistent with the
doctrine that a person who dedicates a footway to the public use is not
obliged to keep it in repair (see Fisher _v._ Prowse, 2 B. & S. 770,
780, and Robbins _v._ Jones, 15 C. B. (N. S.) 221) as we are of opinion
that that case has no application to the case at bar. In Holmes _v._
Drew, the defendant made a continuous pavement in front of his house,
partly on his own land and partly on the public land; and it was held
that the jury might infer from this an invitation to walk over the whole
pavement. In the case at bar, the defendants merely opened a private way
into a public street, and we fail to see that they thereby invited the
public to use it, even though it were paved.

                                            _Exceptions overruled._[164]


                 TUTTLE _v._ GILBERT MANUFACTURING CO.
        SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 20, 1887.
             _Reported in 145 Massachusetts Reports, 169._

Tort, by lessee of a building against lessor. The lessee claimed, and
introduced evidence to show, that, at the time of letting, the lessor
agreed to repair the building and put it in safe condition; that the
lessee suffered damage by reason of a defect in the building; and that
the lessor failed and neglected to make repairs until after the damage
to the plaintiff.

Upon the evidence, the judge ruled that plaintiff could not recover, and
ordered a verdict for defendant. Plaintiff excepted.[165]

MORTON, C. J. It is the general rule that there is no warranty implied
in the letting of premises that they are reasonably fit for use. The
lessee takes an estate in the premises hired, and he takes the risk of
the quality of the premises, in the absence of an express or implied
warranty by the lessor, or of deceit. A lessee, therefore, if he is
injured by reason of the unsafe condition of the premises hired, cannot
maintain an action against the lessor, in the absence of warranty or of
misrepresentation. In cases where lessors have been held liable for such
injuries to the lessees, the liability is founded in negligence. Looney
_v._ McLean, 129 Mass. 33. Bowe _v._ Hunking, 135 Mass. 380, and cases
cited.

The plaintiff admits the general rule, but contends that this case is
taken out of it because, at the time of the letting, the defendant
agreed to repair and put in a safe condition the stable floor, the
unsafe condition of which caused the injury. The contract relied on is a
loose one; it fixed no time within which the repairs were to be made,
and it is doubtful whether the evidence proved any breach of contract on
the part of the defendant. But if we assume that the contract was to
make the repairs within a reasonable time, and that the jury would be
justified in finding that the defendant had not performed it within a
reasonable time, the question is whether, for such a breach, the
plaintiff can maintain an action of tort to recover for personal
injuries sustained by reason of the defective condition of the stable
floor.

The cases are numerous and confusing as to the dividing line between
actions of contract and of tort, and there are many cases where a man
may have his election to bring either action. Where the cause of action
arises merely from a breach of promise, the action is in contract.

The action of tort has for its foundation the negligence of the
defendant, and this means more than a mere breach of a promise.
Otherwise, the failure to meet a note, or any other promise to pay
money, would sustain an action in tort for negligence, and thus the
promisor be made liable for all the consequential damages arising from
such failure.

As a general rule, there must be some active negligence or misfeasance
to support tort. There must be some breach of duty distinct from breach
of contract. In the case at bar, the utmost shown against the defendant
is that there was unreasonable delay on its part in performing an
executory contract. As we have seen, it is not liable by reason of the
relation of lessor and lessee, but its liability, if any, must rest
solely upon a breach of this contract.

We do not see how the cases would differ in principle if an action were
brought against a third person who had contracted to repair the stable
floor and had unreasonably delayed in performing his contract. We are
not aware of any authority for maintaining such an action. If the
defendant had performed the work contemplated by its contract
unskilfully and negligently, it would be liable to an action of tort,
because in such case there would be a misfeasance, which is a sufficient
foundation for an action of tort. Such was the case of Gill _v._
Middleton, 105 Mass. 477.

The case of Ashley _v._ Root, 4 Allen, 504, does not conflict with our
view, but recognizes the rule that to sustain an action of tort there
must be more than a mere breach of contract.

The plaintiff now argues that he had the right to go to the jury upon
the questions of warranty and deceit. It does not appear that this claim
was made in the Superior Court; but it is clear that there is no
sufficient evidence of any warranty that the stable was safe, or of any
deceit or misrepresentation on the part of the defendant or its agent.

                                            _Exceptions overruled._[166]


                         SOUTHCOTE _v._ STANLEY
                    IN THE EXCHEQUER, JUNE 4, 1856.
                _Reported in 1 Hurlstone & Norman, 247._

The declaration stated that at the time of the committing of the
grievances, &c., the defendant was possessed of an hotel, into which he
had then permitted and invited the plaintiff to come as a visitor of the
defendant, and in which the plaintiff as such visitor then lawfully was
by the permission and invitation of the defendant, and in which hotel
there then was a glass door of the defendant which it was then necessary
for the plaintiff, as such visitor, to open for the purpose of leaving
the hotel, and which the plaintiff, as such visitor, then by the
permission of the defendant and with his knowledge, and without any
warning from him, lawfully opened for the purpose aforesaid, as a door
which was in a proper condition to be opened; nevertheless, by and
through the mere carelessness, negligence, and default of the defendant
in that behalf, the said door was then in an insecure and dangerous
condition, and unfit to be used or opened, and by reason of the said
door being in such insecure and dangerous condition and unfit, as
aforesaid, and of the then carelessness, negligence, default, and
improper conduct of the defendant in that behalf, a large piece of glass
from the said door fell out of the same to and upon the plaintiff, and
wounded him, and he sustained divers bodily injuries, and remained ill
and unable to work for a long time, &c.

Demurrer and joinder therein.

_Raymond_, in support of the demurrer. The declaration discloses no
cause of action. It is not stated that the plaintiff was in the hotel as
a guest, but merely as a visitor; and there is no allegation that the
defendant knew of the dangerous condition of the door. To render the
defendant liable, the declaration ought to have shown some contract
between the plaintiff and the defendant which imposed on the latter the
obligation of taking care that the door was secure; or it should have
alleged some negligence on the part of the defendant in the performance
of a duty which he owed to the plaintiff. [BRAMWELL, B. If a person
invites another into his house, and the latter can only enter through a
particular door, is it not the duty of the former to take care that the
door is in a secure condition?] He may not be aware that the door is
insecure. This declaration only alleges that through the carelessness,
negligence, and default of the defendant the door was in a dangerous
condition; that cannot be read as involving the allegation that the
defendant knew that the door was insecure. All facts necessary to raise
a legal liability must be strictly averred. Metcalfe _v._ Hetherington,
11 Exch. 257. [ALDERSON, B. It is not stated that it was the duty of the
defendant, as an hotel keeper, to take care that the door was secure.
Suppose a person invites another to his house, and the latter runs his
hand through a pane of glass, how is the former liable?] The Court then
called on

_Gray, contra._ The declaration shows a duty on the part of the
defendant, and a breach of that duty. It is immaterial whether the
injury takes place in a private house, or in a shop, or in a street; the
only question is whether the person who complains was lawfully there?
The case is similar in principle to that of Randleson _v._ Murray, 8 A.
& E. 109, which decided that a warehouseman who lowers goods from his
warehouse is bound to use proper tackle for that purpose. [ALDERSON, B.
It is the duty of every person who hangs anything over a public way to
take care that it is suspended by a proper rope.] Whether it be a
private house or a shop, a duty is so far imposed on the occupier to
keep it reasonably secure, that if a person lawfully enters, and through
the negligence of the occupier in leaving it in an insecure state
receives an injury, the occupier is responsible. Here it is alleged that
the defendant invited the plaintiff to come into the hotel as a visitor;
that shows that he was lawfully there. [POLLOCK, C. B. The position that
an action lies because the plaintiff was lawfully in the house, cannot
be supported; a servant is lawfully in his master’s house and yet if the
balusters fell, whereby he was injured, he could not maintain an action
against the master. If a lady who is invited to dinner goes in an
expensive dress, and a servant spills something over her dress which
spoils it, the master of the house would not be liable. Where a person
enters a house by invitation the same rule prevails as in the case of a
servant. A visitor would have no right of action for being put in a damp
bed, or near a broken pane of glass, whereby he caught cold. ALDERSON,
B. The case of a shop is different, because a shop is open to the
public; and there is a distinction between persons who come on business
and those who come by invitation.]

POLLOCK, C. B. We are all of opinion that the declaration cannot be
supported, and that the defendant is entitled to judgment. I do not
think it necessary to point out the reasons by which I have come to that
conclusion; because it follows from the decision of this Court
(Priestley _v._ Fowler, 3 M. & W. 1) that the mere relation of master
and servant does not create any implied duty on the part of the master
to take more care of the servant than he may reasonably be expected to
do of himself. That decision has been followed by several cases,[167]
and is now established law, though I believe the principle was not
recognized until recent times. The reason for the rule is that the
servant undertakes to run all the ordinary risks of service, including
those arising from the negligence of his fellow-servants. The rule
applies to all the members of a domestic establishment, so that the
master is not in general liable to a servant for injury resulting from
the negligence of a fellow-servant; neither can one servant maintain an
action against another for negligence whilst engaged in their common
employment. The same principle applies to the case of a visitor at a
house; whilst he remains there he is in the same position as any other
member of the establishment, so far as regards the negligence of the
master or his servants, and he must take his chance with the rest.

ALDERSON, B. I am of the same opinion.

BRAMWELL, B. I agree with Mr. _Gray_ to this extent, that where a person
is in the house of another, either on business or for any other purpose,
he has a right to expect that the owner of the house will take
reasonable care to protect him from injury; for instance, that he will
not allow a trap-door to be open through which the visitor may fall. But
in this case my difficulty is to see that the declaration charges any
act of commission. If a person asked another to walk in his garden, in
which he had placed spring-guns or men-traps, and the latter, not being
aware of it, was thereby injured, that would be an act of commission.
But if a person asked a visitor to sleep at his house, and the former
omitted to see that the sheets were properly aired, whereby the visitor
caught cold, he could maintain no action, for there was no act of
commission, but simply an act of omission. This declaration merely
alleges that “by and through the mere carelessness, negligence, default,
and improper conduct of the defendant,” the glass fell from the door.
That means a want of care,—a default in not doing something. The words
are all negatives, and under these circumstances the action is not
maintainable. I doubted whether the words “carelessness, negligence, and
improper conduct,” &c., might not mean something equivalent to actual
commission, but on the best consideration which I can give the subject,
it appears to me that they do not mean that, but merely point to a
negative. If I misconstrue the declaration it is the fault of those who
so framed it.

                                      _Judgment for the defendant._[168]


                          BEEHLER _v._ DANIELS
               SUPREME COURT, RHODE ISLAND, MAY 1, 1894.
              _Reported in 18 Rhode Island Reports, 563._

Trespass on the Case. Certified from the Common Pleas Division on
demurrer to the declaration.

STINESS, J. The plaintiff seeks to recover for injury caused by falling
into an elevator well in the defendants’ building, which he entered in
the discharge of his duty, as a member of the fire department of the
city of Providence, in answering a call to extinguish a fire. The
negligence alleged in the first count is a failure to guard and protect
the well; and in the second count such a packing of merchandise as to
guide and conduct one to the unguarded and unprotected well. The
defendants demur to the declaration, alleging as grounds of demurrer
that they owed no duty to the plaintiff; that he entered their premises
in the discharge of a public duty and assumed the risks of his
employment; that he was in the premises without invitation from them;
and that they are not liable for consequences which they could not and
were not bound to foresee.

The decisive question thus raised is, Did the defendants, under the
circumstances, owe to the plaintiff a duty, for failure in which they
are liable to him in damages? The question is not a new one, and we
think it is safe to say that it has never been answered otherwise than
in favor of the defendants. The plaintiff argues that it was his duty to
enter the premises, and, consequently, since an owner may reasonably
anticipate the liability of a fire, a duty arises from the owner to the
fireman to keep his premises guarded and safe. An extension of this
argument to its legitimate result, as a rule of law, is sufficiently
startling to show its unsoundness. The liability to fire is common to
all buildings and at all times. Hence every owner of every building must
at all times keep every part of his property, in such condition, that a
fireman, unacquainted with the place, and groping about in darkness and
smoke, shall come upon no obstacle, opening, machine or anything
whatever which may cause him injury. This argument was urged in Woodruff
_v._ Bowen, 136 Ind. 431; but the court said: “We are of the opinion
that the owner of a building in a populous city does not owe it as a
duty at common law, independent of any statute or ordinance, to keep
such building safe for firemen or other officers, who, in a contingency,
may enter the same under a license conferred by law.”

Undoubtedly the plaintiff in this case had the right to enter the
defendants’ premises, and the character of his entry was that of a
licensee. Cooley on Torts, *313. But no such duty as is averred in this
declaration is due from an owner to a licensee. This question is
discussed in the case just cited, as also in many others. For example,
in Reardon _v._ Thompson, 149 Mass. 267, Holmes, J., says: “But the
general rule is that a licensee goes upon land at his own risk, and must
take the premises as he finds them. An open hole, which is not concealed
otherwise than by the darkness of the night, is a danger which a
licensee must avoid at his peril.” So in Mathews _v._ Bensel, 51 N. J.
Law, 30, Beasley, C. J., says: “The substantial ground of complaint laid
in the count is, that the defendants did not properly construct their
planer, and, being a dangerous instrument, did not surround it with
proper safeguards. But there is no legal principle that imposes such a
duty as this on the owner of property with respect to a mere licensee.
This is the recognized rule. In the case of Holmes _v._ Northeastern
Railway Co., L. R. 4 Exch. 254, 256, Baron Channell says: ‘That where a
person is a mere licensee he has no cause of action on account of the
dangers existing in the place he is permitted to enter.’” In Parker _v._
Portland Publishing Co., 69 Me. 173, this question is fully examined,
the court holding it to be well settled, if the plaintiff was at the
place where the injury was received by license merely, that the
defendant would owe him no duty and that he could not recover. See also
Indiana, etc., Railway Co. _v._ Barnhart, 115 Ind. 399; Gibson _v._
Leonard, 37 Ill. App. 344; Bedell _v._ Berkey, 76 Mich. 435.

There is a clear distinction between a license and an invitation to
enter premises, and an equally clear distinction as to the duty of an
owner in the two cases. An owner owes to a licensee no duty as to the
condition of premises, unless imposed by statute, save that he should
not knowingly let him run upon a hidden peril or wilfully cause him
harm; while to one invited he is under obligation for reasonable
security for the purposes of the invitation. The plaintiff’s declaration
does not set out a cause of action upon either of these grounds, and the
cases cited and relied on by him fall within the two classes of cases
described, and mark the line of duty very clearly. Parker _v._ Barnard,
135 Mass. 116, was the case of a police officer who had entered a
building, the doors of which were found open in the night time, to
inspect it according to the rules of the police department, and fell
down an unguarded elevator well. A statute required such wells to be
protected by railings and trap-doors. Judgment having been given for the
defendant at the trial, a new trial was ordered upon the ground of a
violation of statute. The court says: “The owner or occupant of land or
a building is not liable, at common law, for obstructions, pitfalls, or
other dangers there existing, as, in the absence of any inducement or
invitation to others to enter, he may use his property as he pleases.
But he holds his property ‘subject to such reasonable control and
regulation of the mode of keeping and use as the legislature, under the
police power vested in them by the Constitution of the Commonwealth, may
think necessary for the preventing of injuries to the rights of others
and the security of the public health and welfare.’” Then, likening the
plaintiff to a fireman, the court also says: “Even if they must
encounter the danger arising from neglect of such precautions against
obstructions and pitfalls as those invited or induced to enter have a
right to expect, they may demand, as against the owners or occupants,
that they observe the statute in the construction and management of
their building.” In Learoyd _v._ Godfrey, 138 Mass. 315, a police
officer fell down an uncovered well in or near a passageway to a house
where he was called to quell a disturbance of the peace. A verdict for
the plaintiff was sustained upon the ground that the jury must have
found that the officer was using the passageway by the defendant’s
invitation and that the evidence warranted the finding. Gordon _v._
Cummings, 152 Mass. 513, was the case of a letter carrier who fell into
an elevator well, in a hallway where he was accustomed to leave letters
in boxes put there for that purpose. The court held that there was an
implied invitation to the carrier to enter the premises. In Engel _v._
Smith, 82 Mich. 1, the plaintiff fell through a trap-door left open in a
building where he was employed. The question of duty is not discussed in
the case but simply the fact of negligence. In Bennett _v._ Railroad
Co., 102 U. S. 577, the plaintiff, a passenger, fell through a hatch
hole in the depot floor. The court construed the declaration as setting
out facts which amounted to an invitation to the plaintiff to pass over
the route which he took through the shed depot where the hatch hole was.

In the present case the plaintiff sets out no violation of a statute, or
facts which amount to an invitation, and, consequently, under the
well-settled rule of law, the defendants were under no liability to him
for the condition of their premises or the packing of their merchandise.
The demurrer to the declaration must therefore be sustained.[169]


                              SECTION VII
       LIABILITY TO THIRD PERSONS OF MAKER OR VENDOR OF A CHATTEL


                        WINTERBOTTOM _v._ WRIGHT
                    IN THE EXCHEQUER, JUNE 6, 1842.
                 _Reported in 10 Meeson & Welsby, 109._

Case. The declaration stated, that the defendant was a contractor for
the supply of mail-coaches, and had in that character contracted for
hire and reward with the Postmaster-General, to provide the mail-coach
for the purpose of conveying the mail-bags from Hartford, in the county
of Chester, to Holyhead: That the defendant, under and by virtue of the
said contract, had agreed with the said Postmaster-General that the said
mail-coach should, during the said contract, be kept in a fit, proper,
safe, and secure state and condition for the said purpose, and took upon
himself, to wit, under and by virtue of the said contract, the sole and
exclusive duty, charge, care, and burden of the repairs, state, and
condition of the said mail-coach; and it had become and was the sole and
exclusive duty of the defendant, to wit, under and by virtue of his said
contract, to keep and maintain the said mail-coach in a fit, proper,
safe, and secure state and condition for the purpose aforesaid: That
Nathaniel Atkinson and other persons, having notice of the said
contract, were under contract with the Postmaster-General to convey the
said mail-coach from Hartford to Holyhead, and to supply horses and
coachmen for that purpose, and also not, on any pretence whatever, to
use or employ any other coach or carriage whatever than such as should
be so provided, directed, and appointed by the Postmaster-General: That
the plaintiff, being a mail-coachman, and thereby obtaining his
livelihood, and whilst the said several contracts were in force, having
notice thereof, and trusting to and confiding in the contract made
between the defendant and the Postmaster-General, and believing that the
said coach was in a fit, safe, secure, and proper state and condition
for the purpose aforesaid, and not knowing and having no means of
knowing to the contrary thereof, hired himself to the said Nathaniel
Atkinson and his co-contractors as mail-coachman, to drive and take the
conduct of the said mail-coach, which but for the said contract of the
defendant he would not have done. The declaration then averred, that the
defendant so improperly and negligently conducted himself, and so
utterly disregarded his aforesaid contract, and so wholly neglected and
failed to perform his duty in this behalf, that heretofore, to wit, on
the 8th of August, 1840, whilst the plaintiff, as such mail-coachman so
hired, was driving the said mail-coach from Hartford to Holyhead, the
same coach, being a mail-coach found and provided by the defendant under
his said contract, and the defendant then acting under his said
contract, and having the means of knowing and then well knowing all the
aforesaid premises, the said mail-coach being then in a frail, weak,
infirm, and dangerous state and condition, to wit, by and through
certain latent defects in the state and condition thereof, and unsafe
and unfit for the use and purpose aforesaid, and from no other cause,
circumstance, matter, or thing whatsoever gave way and broke down,
whereby the plaintiff was thrown from his seat, and, in consequence of
injuries then received, had become lamed for life.

To this declaration the defendant pleaded several pleas, to two of which
there were demurrers; but, as the Court gave no opinion as to their
validity, it is not necessary to state them.

_Peacock_, who appeared in support of the demurrers, having argued
against the sufficiency of the pleas,—

_Byles_, for the defendant, objected that the declaration was bad in
substance. This is an action brought, not against Atkinson and his
co-contractors, who were the employers of the plaintiff, but against the
person employed by the Postmaster-General, and totally unconnected with
them or with the plaintiff. Now it is a general rule, that wherever a
wrong arises merely out of the breach of a contract, which is the case
on the face of this declaration, whether the form in which the action is
conceived be _ex contractu_ or _ex delicto_, the party who made the
contract alone can sue: Tollit _v._ Sherstone, 5 M. & W. 283. If the
rule were otherwise, and privity of contract were not requisite, there
would be no limit to such actions. If the plaintiff may, as in this
case, run through the length of three contracts, he may run through any
number or series of them; and the most alarming consequences would
follow the adoption of such a principle. Levy _v._ Langridge, 4 M. & W.
337, will probably be referred to on the other side. But that case was
expressly decided on the ground that the defendant, who sold the gun by
which the plaintiff was injured, although he did not personally contract
with the plaintiff, who was a minor, knew that it was bought to be used
by him. Here there is no allegation that the defendant knew that the
coach was to be driven by the plaintiff. There, moreover, fraud was
alleged in the declaration, and found by the jury: and there, too, the
cause of injury was a weapon of a dangerous nature, and the defendant
was alleged to have had notice of the defect in its construction.
Nothing of that sort appears upon this declaration.

_Peacock, contra._ This case is within the principle of the decision in
Levy _v._ Langridge. Here the defendant entered into a contract with a
public officer to supply an article which, if imperfectly constructed,
was necessarily dangerous, and which, from its nature and the use for
which it was destined, was necessarily to be driven by a coachman. That
is sufficient to bring the case within the rule established by Levy _v._
Langridge. In that case the contract made by the father of the plaintiff
with the defendant was made on behalf of himself and his family
generally, and there was nothing to show that the defendant was aware
even of the existence of the particular son who was injured. Suppose a
party made a contract with government for a supply of muskets, one of
which, from its misconstruction, burst and injured a soldier: there it
is clear that the use of the weapon by a soldier would have been
contemplated, although not by the particular individual who received the
injury, and could it be said, since the decision in Levy _v._ Langridge,
that he could not maintain an action against the contractor? So, if a
coachmaker, employed to put on the wheels of a carriage, did it so
negligently that one of them flew off, and a child of the owner were
thereby injured, the damage being the natural and immediate consequence
of his negligence, he would surely be responsible. So, if a party
entered into a contract to repair a church, a workhouse, or other public
building, and did it so insufficiently that a person attending the
former, or a pauper in the latter, were injured by the falling of a
stone, he could not maintain an action against any other person than the
contractor; but against him he must surely have a remedy. It is like the
case of a contractor who negligently leaves open a sewer, whereby a
person passing along the street is injured. It is clear that no action
could be maintained against the Postmaster-General: Hall _v._ Smith, 2
Bing. 156; Humphreys _v._ Mears, 1 Man. & R. 187; Priestly _v._ Fowler.
But here the declaration alleges the accident to have happened through
the defendant’s negligence and want of care. The plaintiff had no
opportunity of seeing that the carriage was sound and secure. [ALDERSON,
B. The decision in Levy _v._ Langridge proceeds upon the ground of the
knowledge and fraud of the defendant.] Here also there was fraud: the
defendant represented the coach to be in a proper state for use, and
whether he represented that which was false within his knowledge, or a
fact as true which he did not know to be so, it was equally a fraud in
point of law, for which he is responsible.

LORD ABINGER, C. B. I am clearly of opinion that the defendant is
entitled to our judgment. We ought not to permit a doubt to rest upon
this subject, for our doing so might be the means of letting in upon us
an infinity of actions. This is an action of the first impression, and
it has been brought in spite of the precautions which were taken, in the
judgment of this Court in the case of Levy _v._ Langridge, to obviate
any notion that such an action could be maintained. We ought not to
attempt to extend the principle of that decision, which, although it has
been cited in support of this action, wholly fails as an authority in
its favor; for there the gun was bought for the use of the son, the
plaintiff in that action, who could not make the bargain himself, but
was really and substantially the party contracting. Here the action is
brought simply because the defendant was a contractor with a third
person; and it is contended that thereupon he became liable to everybody
who might use the carriage. If there had been any ground for such an
action, there certainly would have been some precedent of it; but with
the exception of actions against innkeepers, and some few other persons,
no case of a similar nature has occurred in practice. That is a strong
circumstance, and is of itself a great authority against its
maintenance. It is however contended, that this contract being made on
the behalf of the public by the Postmaster-General, no action could be
maintained against him, and therefore the plaintiff must have a remedy
against the defendant. But that is by no means a necessary
consequence,—he may be remediless altogether. There is no privity of
contract between these parties; and if the plaintiff can sue, every
passenger, or even any person passing along the road, who was injured by
the upsetting of the coach, might bring a similar action. Unless we
confine the operation of such contracts as this to the parties who
entered into them, the most absurd and outrageous consequences, to which
I can see no limit, would ensue. Where a party becomes responsible to
the public, by undertaking a public duty, he is liable, though the
injury may have arisen from the negligence of his servant or agent. So,
in cases of public nuisances, whether the act was done by the party as a
servant, or in any other capacity, you are liable to an action at the
suit of any person who suffers. Those, however, are cases where the real
ground of the liability is the public duty, or the commission of the
public nuisance. There is also a class of cases in which the law permits
a contract to be turned into a tort; but unless there has been some
public duty undertaken, or public nuisance committed, they are all cases
in which an action might have been maintained upon the contract. Thus, a
carrier may be sued either in assumpsit or case; but there is no
instance in which a party, who was not privy to the contract entered
into with him, can maintain any such action. The plaintiff in this case
could not have brought an action on the contract; if he could have done
so, what would have been his situation supposing the Postmaster-General
had released the defendant? That would, at all events, have defeated his
claim altogether. By permitting this action, we should be working this
injustice, that after the defendant had done everything to the
satisfaction of his employer, and after all matters between them had
been adjusted, and all accounts settled on the footing of their
contract, we should subject them to be ripped open by this action of
tort being brought against him.

ALDERSON, B. I am of the same opinion. The contract in this case was
made with the Postmaster-General alone; and the case is just the same as
if he had come to the defendant and ordered a carriage, and handed it at
once over to Atkinson. If we were to hold that the plaintiff could sue
in such a case, there is no point at which such actions would stop. The
only safe rule is to confine the right to recover to those who enter
into the contract: if we go one step beyond that, there is no reason why
we should not go fifty. The only real argument in favor of the action
is, that this is a case of hardship; but that might have been obviated,
if the plaintiff had made himself a party to the contract. Then it is
urged that it falls within the principle of the case of Levy _v._
Langridge. But the principle of that case was simply this, that the
father having bought the gun for the very purpose of being used by the
plaintiff, the defendant made representations by which he was induced to
use it. There, a distinct fraud was committed on the plaintiff; the
falsehood of the representation was also alleged to have been within the
knowledge of the defendant who made it, and he was properly held liable
for the consequences. How are the facts of that case applicable to those
of the present? Where is the allegation of misrepresentation or fraud in
this declaration? It shows nothing of the kind. Our judgment must
therefore be for the defendant.

GURNEY, B., concurred.

ROLFE, B. The breach of the defendant’s duty, stated in this
declaration, is his omission to keep the carriage in a safe condition;
and when we examine the mode in which that duty is alleged to have
arisen, we find a statement that the defendant took upon himself, to
wit, under and by virtue of the said contract, the sole and exclusive
duty, charge, care, and burden of the repairs, state, and condition of
the said mail-coach, and, during all the time aforesaid, it had become
and was the sole and exclusive duty of the defendant, to wit, under and
by virtue of his said contract, to keep and maintain the said mail-coach
in a fit, proper, safe, and secure state and condition. The duty,
therefore, is shown to have arisen solely from the contract; and the
fallacy consists in the use of that word “duty.” If a duty to the
Postmaster-General be meant, that is true; but if a duty to the
plaintiff be intended (and in that sense the word is evidently used),
there was none. This is one of those unfortunate cases in which there
certainly has been _damnum_, but it is _damnum absque injuria_; it is,
no doubt, a hardship upon the plaintiff to be without a remedy, but, by
that consideration we ought not to be influenced. Hard cases, it has
been frequently observed, are apt to introduce bad law.

                                      _Judgment for the defendant._[170]


                     BLOOD BALM COMPANY _v._ COOPER
               SUPREME COURT, GEORGIA, OCTOBER 14, 1889.
                 _Reported in 83 Georgia Reports, 857._

Action by Cooper against Blood Balm Company in the City Court of
Atlanta. Verdict for plaintiff. Defendants brought error.[171]

BLANDFORD, J. The main question in this case arises upon the refusal of
the Court below to award a nonsuit, and the solution of this question
depends upon whether, where one prepares what is known as a proprietary
or patent medicine, and puts it upon the market and recommends it to the
world as useful for the cure of certain diseases, the bottle containing
it having therewith a prescription made by the proprietor of the
medicine, in which he states that it is to be taken in certain
quantities, and such medicine, accompanied with this prescription, is
sold by the proprietor to a druggist for the purpose of being resold to
persons who might wish to use it, and the druggist sells the same to a
person who uses it in the quantity thus prescribed, and it being shown
that the same contains a certain article known as the iodide of potash
in such quantity as proves harmful to the person thus using, the
proprietor is liable. The plaintiff in error insists that there is no
liability on the part of the proprietor, (1) because it was not sold by
the proprietor to the person injured, but by a druggist who had
purchased the same from the proprietor; and several cases are cited to
sustain this position; (2) because the drug thus sold was not imminently
hurtful or poisonous.

1. We are not aware of any decision of this Court upon this question,
indeed there is none; and we have searched carefully not only the
authorities cited by counsel in this case, but others, and we find no
question like the one which arises in this record determined by any
Court. In the case of Thomas _v._ Winchester, 6 N. Y. (2 Seld.) 397, 57
Am. Dec. 455, 1 Thompson, Neg. 224, referred to by counsel in this case,
the question decided was, that a dealer in drugs and medicines who
carelessly labels a deadly poison as a harmless medicine, and sends it
so labelled into market, is liable to all persons who, without fault on
their part, are injured by using it as such medicine in consequence of
the false label. This comes nearer the present case than any we have
been able to find, and it is relied upon by both parties as an
authority; and in the notes thereto by Mr. Freeman in the American
Decisions, the cases relied upon by counsel in this case are embraced
and referred to, and to some extent considered. It is not denied by
counsel in this case that the doctrine of the case cited (Thomas _v._
Winchester) is sound and correct law, but the present case differs from
that case, and mainly in this: there the drug sold was a deadly poison,
and the wrong consisted in putting a label upon the same which indicated
that it was a harmless medicine; whereas in this case the medicine sold
was not a deadly poison, and no label was put upon it which was
calculated to deceive any one in this respect. But accompanying this
medicine was a prescription of the proprietor stating the quantity to be
taken, and the evidence tended to show that the quantity thus prescribed
contained iodide of potash to such an extent as, when taken by the
plaintiff, produced the injury and damage complained of. The liability
of the plaintiff in error to the person injured arises, not by contract,
but for a wrong committed by the proprietor in the prescription and
direction as to the dose that should be taken.

We can see no difference whether the medicine was directly sold to the
defendant in error by the proprietor, or by an intermediate party to
whom the proprietors had sold it in the first instance for the purpose
of being sold again. It was put upon the market by the proprietor, not
alone for the use of druggists to whom they might sell it, but to be
used by the public in general who might need the same for the cure of
certain diseases for which the proprietor set forth in his label the
same was adapted. This was the same thing as if the proprietor himself
had sold this medicine to the defendant in error, with his instructions
and directions as to how the same should be taken. In all the cases
cited by the plaintiff in error there is no case in which the proprietor
prescribed the doses and quantities to be taken of the medicine sold by
him. If this medicine contained the iodide of potassium in sufficient
quantity to produce the injurious consequences complained of to the
defendant in error, and if the same was administered to him, either by
himself or any other person, as prescribed in the label accompanying the
medicine, he could, in our judgment, recover for any injury he may have
sustained on account of the poisonous effect thereof. It was a wrong on
the part of the proprietor to extend to the public generally an
invitation to take the medicine in quantities sufficient to injure and
damage persons who might take it.

A medicine which is known to the public as being dangerous and poisonous
if taken in large quantities, may be sold by the proprietor to druggists
and others, and if any person, without more, should purchase and take
the same so as to cause injury to himself, the proprietor would not be
liable. But if the contents of a medicine are concealed from the public
generally, and the medicine is prepared by one who know its contents,
and he sells the same, recommending it for certain diseases and
prescribing the mode in which it shall be taken, and injury is thereby
sustained by the person taking the same, the proprietor would be liable
for the damage thus sustained. These proprietary or patent medicines are
secret, or intended by the proprietors to be secret, as to their
contents. They expect to derive a profit from such secrecy. They are
therefore liable for all injuries sustained by any one who takes their
medicine in such quantities as may be prescribed by them. There is no
way for a person who uses the medicine to ascertain what its contents
are, ordinarily, and in this case the contents were only ascertained
after an analysis made by a chemist,—which would be very inconvenient
and expensive to the public; nor would it be the duty of a person using
the medicine to ascertain what poisonous drugs it may contain. He has a
right to rely upon the statement and recommendation of the proprietor,
printed and published to the world; and if thus relying, he takes the
medicine and is injured on account of some concealed drug of which he is
unaware, the proprietor is not free from fault, and is liable for the
injury thereby sustained. It appears from the analysis made by the
chemist in this case that this medicine contained 25 grains of the
iodide of potash to two tablespoonfuls of the medicine. The testimony of
the plaintiff, by witnesses learned in the profession of medicine, was
that iodide of potash in this quantity would produce the effects upon a
person using it shown by the condition of the defendant in error. The
prescription accompanying the bottle directed the taking of one to two
tablespoonfuls of the medicine, and this was done by the defendant in
error, and he was thereby greatly injured and damaged.

This is not like the case of a dangerous machine or a gun sold to a
person and by him given or sold to another, as in some of the cases
referred to. Mr. Freeman, in his notes to the case above referred to
(Thomas _v._ Winchester), alludes to all those cases; and Mr. Thompson,
in his work on Negligence, refers to the same cases, and they are there
fully discussed.

                                                    _Judgment affirmed._

[Remainder of opinion omitted.]


              HUSET _v._ J. I. CASE THRESHING MACHINE CO.
      CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT, FEBRUARY 26, 1903.
                _Reported in 120 Federal Reporter, 865._

SANBORN, Circuit Judge:[172]

Is a manufacturer or vendor of an article or machine which he knows,
when he sells it, to be imminently dangerous, by reason of a concealed
defect therein, to the life and limbs of any one who shall use it for
the purpose for which it was made and intended, liable to a stranger to
the contract of sale for an injury which he sustains from the concealed
defect while he is lawfully applying the article or machine to its
intended use?

The argument of this question has traversed the whole field in which the
liability of contractors, manufacturers, and vendors to strangers to
their contracts for negligence in the construction or sale of their
articles has been contested. The decisions which have been cited are not
entirely harmonious, and it is impossible to reconcile all of them with
any established rule of law. And yet the underlying principle of the law
of negligence, that it is the duty of every one to so act himself and to
so use his property as to do no unnecessary damage to his neighbors,
leads us fairly through the maze. With this fundamental principle in
mind, if we contemplate the familiar rules that every one is liable for
the natural and probable effects of his acts; that negligence is a
breach of a duty; that an injury that is the natural and probable
consequence of an act of negligence is actionable, while one that could
not have been foreseen or reasonably anticipated as the probable effect
of such an act is not actionable, because the act of negligence in such
a case is the remote, and not the proximate, cause of the injury; and
that, for the same reason, an injury is not actionable which would not
have resulted from an act of negligence except from the interposition of
an independent cause (Chicago, St. Paul, Minneapolis & Omaha R. Co. _v._
Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582)—nearly all the
decisions upon this subject range themselves along symmetrical lines,
and establish rational rules of the law of negligence consistent with
the basic principles upon which it rests.

Actions for negligence are for breaches of duty. Actions on contracts
are for breaches of agreements. Hence the limits of liability for
negligence are not the limits of liability for breaches of contracts,
and actions for negligence often accrue where actions upon contracts do
not arise, and vice versa. It is a rational and fair deduction from the
rules to which brief reference has been made that one who makes or sells
a machine, a building, a tool, or an article of merchandise designed and
fitted for a specific use is liable to the person who, in the natural
course of events, uses it for the purpose for which it was made or sold,
for an injury which is the natural and probable consequence of sale. But
when a contractor builds a house or a bridge, or a manufacturer
constructs a car or a carriage, for the owner thereof under a special
contract with him, an injury to any other person than the owner for whom
the article is built and to whom it is delivered cannot ordinarily be
foreseen or reasonably anticipated as the probable result of the
negligence in its construction. So, when a manufacturer sells articles
to the wholesale or retail dealers, or to those who are to use them,
injury to third persons is not generally the natural or probable effect
of negligence in their manufacture, because (1) such a result cannot
ordinarily be reasonably anticipated, and because (2) an independent
cause—the responsible human agency of the purchaser—without which the
injury to the third person would not occur, intervenes, and, as Wharton
says, “insulates” the negligence of the manufacturer from the injury to
the third person. Wharton on Law of Negligence (2d ed.) § 134. For the
reason that in the cases of the character which have been mentioned the
natural and probable effect of the negligence of the contractor or
manufacturer will generally be limited to the party for whom the article
is constructed, or to whom it is sold, and, perhaps more than all this,
for the reason that a wise and conservative public policy has impressed
the courts with the view that there must be a fixed and definite
limitation to the liability of manufacturers and vendors for negligence
in the construction and sale of complicated machines and structures
which are to be operated or used by the intelligent and the ignorant,
the skilful and the incompetent, the watchful and the careless, parties
that cannot be known to the manufacturers or vendors, and who use the
articles all over the country hundreds of miles distant from the place
of their manufacture or original sale, a general rule has been adopted
and has become established by repeated decisions of the courts of
England and of this country that in these cases the liability of the
contractor or manufacturer for negligence in the construction or sale of
the articles which he makes or vends is limited to the persons to whom
he is liable under his contracts of construction or sale. The limits of
the liability for negligence and for breaches of contract in cases of
this character are held to be identical. The general rule is that a
contractor, manufacturer, or vendor is not liable to third parties who
have no contractual relations with him for negligence in the
construction, manufacture, or sale of the articles he handles.
Winterbottom _v._ Wright, 10 M. & W. 109; Longmeid _v._ Holliday, 6
Exch. 764, 765; Blakemore _v._ Ry. Co., 8 El. & Bl. 1035; Collis _v._
Selden, L. R. 3 C. P. 495, 497; Bank _v._ Ward, 100 U. S. 195, 204, 25
L. Ed. 621; Bragdon _v._ Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A.
567; Goodlander _v._ Standard Oil Co., 63 Fed. 400, 406, 11 C. C. A.
253, 259, 27 L. R. A. 583; Loop _v._ Litchfield, 42 N. Y. 351, 359, 1
Am. Rep. 513; Losee _v._ Clute, 51 N. Y. 494, 10 Am. Rep. 623; Curtain
_v._ Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep.
220; Heizer _v._ Kingsland & Douglass Mfg. Co., 110 Mo. 605, 615, 617,
19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; Daugherty _v._
Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep.
204; Burke _v._ De Castro, 11 Hun, 354; Swan _v._ Jackson, 55 Hun, 194,
7 N. Y. Supp. 821; Barrett _v._ Mfg. Co., 31 N. Y. Super. Ct. 545;
Carter _v._ Harden, 78 Me. 528, 7 Atl. 392; McCaffrey _v._ Mfg. Co., (R.
I.) 50 Atl. 651, 55 L. R. A. 822; Marvin Safe Co. _v._ Ward, 46 N. J.
Law, 19; Burdick _v._ Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767;
Davidson _v._ Nichols, 11 Allen, 514; J. I. Case Plow Works _v._ Niles &
Scott Co., (Wis.) 63 N. W. 1013.

In these cases third parties, without any fault on their part, were
injured by the negligence of the manufacturer, vendor, or furnisher of
the following articles, while the parties thus injured were innocently
using them for the purposes for which they were made or furnished, and
the courts held that there could be no recovery, because the makers,
vendors, or furnishers owed no duty to strangers to their contracts of
construction, sale, or furnishing. A stage-coach, Winterbottom _v._
Wright, 10 M. & W. 109; a leaky lamp, Longmeid _v._ Holliday, 6 Exch.
764, 765; a defective chain furnished one to lead stone, Blakemore _v._
Ry Co., 8 El. & Bl. 1035; an improperly hung chandelier, Collis _v._
Selden, L. R. 3 C. P. 495, 497; an attorney’s certificate of title, Bank
_v._ Ward, 100 U. S. 195, 204, 25 L. Ed. 621; a defective valve in an
oil car, Goodlander _v._ Standard Oil Co., 63 Fed. 401, 406, 11 C. C. A.
253, 259, 27 L. R. A. 583; a porch on a hotel, Curtain _v._ Somerset,
140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; a
defective side saddle, Bragdon _v._ Perkins-Campbell Co., 87 Fed. 109,
30 C. C. A. 567; a defective rim in a balance wheel, Loop _v._
Litchfield, 42 N. Y. 351, 359, 1 Am. Rep. 513; a defective boiler, Losee
_v._ Clute, 51 N. Y. 494, 10 Am. Rep. 623; a defective cylinder in a
threshing machine, Heizer _v._ Kingsland & Douglass Mfg. Co., 110 Mo.
605, 615, 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; a
defective wall which fell on a pedestrian, Daugherty _v._ Herzog, 145
Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204; a
defective rope on a derrick, Burke _v._ Refining Co., 11 Hun, 354; a
defective shelf for a workman to stand upon in placing ice in a box,
Swan _v._ Jackson, 55 Hun, 194, 7 N. Y. Supp. 821; a defective hoisting
rope of an elevator, Barrett _v._ Mfg. Co., 31 N. Y. Super. Ct. 545; a
runaway horse, Carter _v._ Harden, 78 Me. 528, 7 Atl. 392; a defective
hook holding a heavy weight in a drop press, McCaffrey _v._ Mfg. Co.,
(R. I.) 50 Atl. 651, 55 L. R. A. 822; a defective bridge, Marvin Safe
Co. _v._ Ward, 46 N. J. Law, 19; shelves in a dry goods store, whose
fall injured a customer, Burdick _v._ Cheadle, 26 Ohio St. 393, 20 Am.
Rep. 767; a staging erected by a contractor for the use of his
employees, McGuire _v._ McGee, (Pa.) 13 Atl. 551; defective wheels, J.
I. Case Plow Works _v._ Niles & Scott Co., (Wis.) 63 N. W. 1013.

In the leading case of Winterbottom _v._ Wright this rule is placed upon
the ground of public policy, upon the ground that there would be no end
of litigation if contractors and manufacturers were to be held liable to
third persons for every act of negligence in the construction of the
articles or machines they make after the parties to whom they have sold
them have received and accepted them. In that case the defendant had
made a contract with the Postmaster-General to provide and keep in
repair the stage-coach used to convey the mail from Hartford to
Holyhead. The coach broke down, overturned, and injured the driver, who
sued the contractor for the injury resulting from his negligence. Lord
Abinger, C. B., said:

“There is no privity of contract between these parties; and, if the
plaintiff can sue, every passenger, or even any person passing along the
road, who was injured by the upsetting of the coach, might bring a
similar action. Unless we confine the operation of such contracts as
this to the parties who entered into them, the most absurd and
outrageous consequences, to which I can see no limit, would ensue.”

Baron Alderson said:

“I am of the same opinion. The contract in this case was made with the
Postmaster-General alone; and the case is just the same as if he had
come to the defendant and ordered a carriage, and handed it at once over
to Atkinson. If we were to hold that the plaintiff could sue in such a
case, there is no point at which such actions would stop. The only safe
rule is to confine the right to recover to those who enter into the
contract. If we go one step beyond that, there is no reason why we
should not go fifty.”

The views expressed by the judges in this case have prevailed in England
and in the United States, with the exception of two decisions which are
in conflict with the leading case and with all the decisions to which
reference has been made. Those cases are Devlin _v._ Smith, 89 N. Y.
470, 42 Am. Rep. 311, in which Smith, a painter, employed Stevenson, a
contractor, to build a scaffold 90 feet in height, for the express
purpose of enabling the painter’s workmen to stand upon it to paint the
interior of the dome of a building, and the Court of Appeals of New York
held that Stevenson was liable to a workman of Smith, the painter, who
was injured by a fall, caused by the negligence of Stevenson in the
construction of the scaffold upon which he was working; and Schubert
_v._ J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 15 L. R. A. 818, 32
Am. St. Rep. 559, in which a painter purchased of a manufacturer a
stepladder, and one of the painter’s employees, who was injured by the
breaking of a step caused by the negligence of the manufacturer, was
permitted to recover of the latter for the injuries he had sustained.
The decision in Devlin _v._ Smith may, perhaps, be sustained on the
ground that the workmen of Smith were the real parties in interest in
the contract, since Stevenson was employed and expressly agreed to
construct the scaffold for their use. But the case of Schubert _v._ J.
R. Clark Co. is in direct conflict with the side saddle case, Bragdon
_v._ Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567; the porch case,
Curtain _v._ Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am.
St. Rep. 220; the defective cylinder case, Heizer _v._ Kingsland &
Douglass Mfg. Co., 110 Mo. 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am.
St. Rep. 481; the defective hook case, McCaffrey _v._ Mfg. Co., (R. I.)
50 Atl. 651, 55 L. R. A. 822; and with the general rule upon which all
these cases stand.

It is, perhaps, the more remarkable that the current of decisions
throughout all the courts of England and the United States should be so
uniform and conclusive in support of this rule, and that there should,
in the multitude of opinions, be but one or two in conflict with it,
than it is that such sporadic cases should be found. They are
insufficient in themselves, or in the reasoning they contain, to
overthrow or shake the established rule which prevails throughout the
English-speaking nations.

But while this general rule is both established and settled, there are,
as is usually the case, exceptions to it as well defined and settled as
the rule itself. There are three exceptions to this rule.

The first is that an act of negligence of a manufacturer or vendor which
is imminently dangerous to the life or health of mankind, and which is
committed in the preparation or sale of an article intended to preserve,
destroy, or affect human life, is actionable by third parties who suffer
from the negligence. Dixon _v._ Bell, 5 Maule & Sel. 198; Thomas _v._
Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Norton _v._ Sewall, 106 Mass.
143, 8 Am. Rep. 298; Elkins _v._ McKean, 79 Pa. 493, 502; Bishop _v._
Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715; Peters _v._ Johnson,
(W. Va.) 41 S. E. 190, 191, 57 L. R. A. 428. The leading case upon this
subject is Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A
dealer in drugs sold to a druggist a jar of belladonna, a deadly poison,
and labelled it “Extract of Dandelion.” The druggist filled a
prescription of extract of dandelion, prepared by a physician for his
patient. The patient took the prescription thus filled, and recovered of
the wholesale dealer for the injuries she sustained. In Norton _v._
Sewall, 106 Mass. 143, 8 Am. Rep. 298, a recovery was had by a third
party for the sale of laudanum as rhubarb; in Bishop _v._ Weber, for the
furnishing of poisonous food for wholesome food; in Peters _v._ Johnson,
for the sale of saltpetre for epsom salts; and in Dixon _v._ Bell, for
placing a loaded gun in the hands of a child. In all these cases of sale
the natural and probable result of the act of negligence—nay, the
inevitable result of it—was not an injury to the party to whom the sales
were made, but to those who, after the purchasers had disposed of the
articles, should consume them. Hence these cases stand upon two
well-established principles of law: (1) That every one is bound to avoid
acts or omissions imminently dangerous to the lives of others, and (2)
that an injury which is the natural and probable result of an act of
negligence is actionable. It was the natural and probable result of the
negligence in these cases that the vendees would not suffer, but that
those who subsequently purchased the deleterious articles would sustain
the injuries resulting from the negligence of the manufacturers or
dealers who furnished them.

The second exception is that an owner’s act of negligence which causes
injury to one who is invited by him to use his defective appliance upon
the owner’s premises may form the basis of an action against the owner.
Coughtry _v._ Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387; Bright
_v._ Barnett & Record Co., (Wis.) 60 N. W. 418, 420, 26 L. R. A. 524;
Heaven _v._ Pender, L. R. 11 Q. B. Div. 503; Roddy _v._ Railway Co., 104
Mo. 234, 241, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333. In
Coughtry _v._ Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387, the owner
of a building employed Osborn & Martin to construct a cornice, and
agreed with them to furnish a scaffold upon which their men could
perform the work. He furnished the scaffold and one of the employees of
the contractors was injured by the negligence of the owner in
constructing the scaffold. The court held that the act of the owner was
an implied invitation to the employees of Osborn & Martin to use the
scaffold and imposed upon him a liability for negligence in its
erection. The other cases cited to this exception are of a similar
character.

The third exception to the rule is that one who sells or delivers an
article which he knows to be imminently dangerous to life or limb to
another without notice of its qualities is liable to any person who
suffers an injury therefrom which might have been reasonably
anticipated, whether there were any contractual relations between the
parties or not. Langridge _v._ Levy, 2 M. & W. 519, 4 M. & W. 337;
Wellington _v._ Oil Co., 104 Mass. 64, 67; Lewis _v._ Terry, (Cal.) 43
Pac. 398. In Langridge _v._ Levy, 2 M. & W. 519, a dealer sold a gun to
the father for the use of the son, and represented that it was a safe
gun, and made by one Nock. It was not made by Nock, was a defective gun,
and when the son discharged it, it exploded and injured him. The son was
permitted to recover, because the defendant had knowingly sold the gun
to the father for the purpose of being used by the plaintiff by loading
and discharging it, and had knowingly made a false warranty that this
might be safely done, and the plaintiff, on the faith of that warranty,
and believing it to be true, had used the gun, and sustained the
damages. The court said in conclusion:

“We therefore think that, as there is fraud, and damage, the result of
that fraud, not from an act remote and consequential, but one
contemplated by the defendant at the time as one of its results, the
party guilty of the fraud is responsible to the party injured.”

This case was affirmed in 4 M. & W. 337, on the ground that the sale of
the gun to the father for the use of the son with the knowledge that it
was not as represented was a fraud, which entitled the son to recover
the damages he had sustained.

In Wellington _v._ Oil Co., the defendants knowingly sold to one Chase,
a retail dealer, to be sold by him to his customers as oil, naphtha, a
dangerous and explosive liquid. Chase sold the naphtha as oil, the
plaintiff used it in a lamp for illuminating purposes, it ignited and
exploded, and he recovered of the wholesale dealer. Judge Gray, later
Mr. Justice Gray of the Supreme Court, said:

“It is well settled that a man who delivers an article, which he knows
to be dangerous or noxious, to another person, without notice of its
nature and qualities, is liable for an injury which may reasonably be
contemplated as likely to result, and which does in fact result
therefrom to that person or any other who is not himself in fault. Thus
a person who delivers a carboy, which he knows to contain nitric acid,
to a carrier, without informing him of the nature of its contents, is
liable for an injury occasioned by the leaking out of the acid upon
another carrier, to whom it is delivered by the first in the ordinary
course of business, to be carried to its destination. Farrant _v._
Barnes, 11 C. B. (N. S.) 553. So a chemist who sells a bottle of liquid,
made up of ingredients known only to himself, representing it to be fit
to be used for washing the hair, and knowing that it is to be used by
the purchaser’s wife, is liable for an injury occasioned to her by using
it for washing her hair. George _v._ Skivington, Law Rep. 5 Ex. 1.”

In Lewis _v._ Terry, (Cal.) 43 Pac. 398, a dealer, knowing a folding bed
to be defective and unsafe, sold it to a Mr. Apperson without informing
him of the fact. His wife suffered a broken arm and other severe
injuries from the negligence of the dealer in the sale of the bed, and
recovered of him the damages she sustained.

The Supreme Court of Missouri, in Heizer _v._ Kingsland & Douglass Mfg.
Co., in which they held that the manufacturer was not liable to a third
person for negligence in the construction of the cylinder of a threshing
machine, which burst and injured him, said:

“Had the defendant sold this machine to Ellis, knowing that the cylinder
was defective, and for that reason dangerous, without informing him of
the defect, then the defendant would be liable even to third persons not
themselves in fault. Shearman & Redfield on Negligence, (4th ed.) §
117.”

Turning now to the case in hand, it is no longer difficult to dispose of
it. The allegations of the complaint are that the defendant prepared a
covering for the cylinder of the threshing machine, which was
customarily and necessarily used by those who operated it to walk upon,
and which was so incapable of sustaining the least weight that it would
bend and collapse whenever any one stepped upon it; that it concealed
this defective and dangerous condition of the threshing rig so that it
could not be readily discovered by persons engaged in operating or
working upon it; that it knew that the machine was in this imminently
dangerous condition when it shipped and supplied it to the employer of
the plaintiff; and that the plaintiff has sustained serious injury
through this defect in its construction. The case falls fairly within
the third exception. It portrays a negligence imminently dangerous to
the lives and limbs of those who should use the machine, a machine
imminently dangerous to the lives and limbs of all who should undertake
to operate it, a concealment of this dangerous condition, a knowledge of
the defendant when it was shipped and supplied to the employer of the
plaintiff that the rig was imminently dangerous to all who should use it
for the purpose for which it was made and sold, and consequent damage to
the plaintiff. It falls directly within the rule stated by Mr. Justice
Gray that when one delivers an article, which he knows to be dangerous
to another person, without notice of its nature and qualities, he is
liable for an injury which may be reasonably contemplated as likely to
result, and which does in fact result therefrom, to that person or to
any other who is not himself in fault. The natural, probable, and
inevitable result of the negligence portrayed by this complaint in
delivering this machine when it was known to be in a condition so
imminently dangerous to the lives and limbs of those who should
undertake to use it for the purpose for which it was constructed was the
death, or loss of one or more of the limbs, of some of the operators. It
is perhaps improbable that the defendant was possessed of the knowledge
of the imminently dangerous character of this threshing machine when it
delivered it, and that upon the trial of the case it will be found to
fall under the general rule which has been announced in an earlier part
of this opinion. But upon the facts alleged in this complaint, the act
of delivering it to the purchaser with a knowledge and a concealment of
its dangerous condition was so flagrant a disregard of the rule that one
is bound to avoid any act imminently dangerous to the lives and health
of his fellows that it forms the basis of a good cause of action in
favor of any one who sustained injury therefrom.

The judgment of the Circuit Court must be reversed, and the cause must
be remanded to the court below for further proceedings not inconsistent
with the views expressed in this opinion.


                           HEAVEN _v._ PENDER
                 IN THE COURT OF APPEAL, JULY 30, 1883.
             _Reported in 11 Queen’s Bench Division, 503._

Action to recover damages for injuries alleged to have been sustained by
the plaintiff through the negligence of the defendant. The County Court
judge gave judgment for the plaintiff. The Queen’s Bench Division, on
appeal, ordered judgment for defendant. The plaintiff appealed to the
Court of Appeal.[173]

BRETT, M. R. In this case the plaintiff was a workman in the employ of
Gray, a ship-painter. Gray entered into a contract with a shipowner
whose ship was in the defendant’s dock to paint the outside of his ship.
The defendant, the dock-owner, supplied, under a contract with the
shipowner, an ordinary stage to be slung in the ordinary way outside the
ship for the purpose of painting her. It must have been known to the
defendant’s servants, if they had considered the matter at all, that the
stage would be put to immediate use, that it would not be used by the
shipowner, but that it would be used by such a person as the plaintiff,
a working ship-painter. The ropes by which the stage was slung, and
which were supplied as a part of the instrument by the defendant, had
been scorched and were unfit for use, and were supplied without a
reasonably careful attention to their condition. When the plaintiff
began to use the stage the ropes broke, the stage fell, and the
plaintiff was injured. The Divisional Court held that the plaintiff
could not recover against the defendant. The plaintiff appealed. The
action is in form and substance an action for negligence. That the stage
was, through want of attention of the defendant’s servants, supplied in
a state unsafe for use is not denied. But want of attention amounting to
a want of ordinary care is not a good cause of action although injury
ensue from such want, unless the person charged with such want of
ordinary care had a duty to the person complaining to use ordinary care
in the matter called in question. Actionable negligence consists in the
neglect of the use of ordinary care or skill toward a person to whom the
defendant owes the duty of observing ordinary care and skill, by which
neglect the plaintiff, without contributory negligence on his part, has
suffered injury to his person or property. The question in this case is
whether the defendant owed such a duty to the plaintiff.

If a person contracts with another to use ordinary care or skill toward
him or his property, the obligation need not be considered in the light
of a duty; it is an obligation of contract. It is undoubted, however,
that there may be the obligation of such a duty from one person to
another although there is no contract between them with regard to such
duty. Two drivers meeting have no contract with each other, but under
certain circumstances they have a reciprocal duty toward each other. So
two ships navigating the sea. So a railway company which has contracted
with one person to carry another has no contract with the person
carried, but has a duty toward that person. So the owner or occupier of
a house or land who permits a person or persons to come to his house or
land has no contract with such person or persons, but has a duty toward
him or them. It should be observed that the existence of a contract
between two persons does not prevent the existence of the suggested duty
between them also being raised by law independently of the contract, by
the facts with regard to which the contract is made and to which it
applies an exactly similar but a contract duty. We have not in this case
to consider the circumstances in which an implied contract may arise to
use ordinary care and skill to avoid danger to the safety of person or
property. We have not in this case to consider the question of a
fraudulent misrepresentation, express or implied, which is a
well-recognized head of law. The questions which we have to solve in
this case are: What is the proper definition of the relation between two
persons other than the relation established by contract, or fraud, which
imposes on one of them a duty toward the other to observe, with regard
to the person or property of such other, such ordinary care or skill as
may be necessary to prevent injury to his person or property; and
whether the present case falls within such definition? When two drivers
or two ships are approaching each other, such a relation arises between
them when they are approaching each other in such a manner that, unless
they use ordinary care and skill to avoid it, there will be danger of an
injurious collision between them. This relation is established in such
circumstances between them, not only if it be proved that they actually
know and think of this danger, but whether such proof be made or not. It
is established, as it seems to me, because any one of ordinary sense who
did think would at once recognize that if he did not use ordinary care
and skill under such circumstances there would be such danger. And every
one ought, by the universally recognized rules of right and wrong, to
think so much with regard to the safety of others who may be jeopardized
by his conduct; and if, being in such circumstances, he does not think,
and in consequence neglects, or if he neglects to use ordinary care and
skill, and injury ensue, the law, which takes cognizance of and enforces
the rules of right and wrong, will force him to give an indemnity for
the injury. In the case of a railway company carrying a passenger with
whom it has not entered into the contract of carriage, the law implies
the duty, because it must be obvious that unless ordinary care and skill
be used the personal safety of the passenger must be endangered. With
regard to the condition in which an owner or occupier leaves his house
or property other phraseology has been used, which it is necessary to
consider. If a man opens his shop or warehouse to customers it is said
that he invites them to enter, and that this invitation raises the
relation between them which imposes on the inviter the duty of using
reasonable care so to keep his house or warehouse that it may not
endanger the person or property of the person invited. This is in a
sense an accurate phrase, and as applied to the circumstances a
sufficiently accurate phrase. Yet it is not accurate if the word
“invitation” be used in its ordinary sense. By opening a shop you do not
really invite, you do not ask A. B. to come in to buy; you intimate to
him that if it pleases him to come in he will find things which you are
willing to sell. So in the case of shop, warehouse, road, or premises,
the phrase has been used that if you permit a person to enter them you
impose on yourself a duty not to lay a trap for him. This, again, is in
a sense a true statement of the duty arising from the relation
constituted by the permission to enter. It is not a statement of what
causes the relation which raises the duty. What causes the relation is
the permission to enter and the entry. But it is not a strictly accurate
statement of the duty. To lay a trap means in ordinary language to do
something with an intention. Yet it is clear that the duty extends to a
danger the result of negligence without intention. And with regard to
both these phrases, though each covers the circumstances to which it is
particularly applied, yet it does not cover the other set of
circumstances from which an exactly similar legal liability is inferred.
It follows, as it seems to me, that there must be some larger
proposition which involves and covers both sets of circumstances. The
logic of inductive reasoning requires that where two major propositions
lead to exactly similar minor premises there must be a more remote and
larger premise which embraces both of the major propositions. That, in
the present consideration, is, as it seems to me, the same proposition
which will cover the similar legal liability inferred in the cases of
collision and carriage. The proposition which these recognized cases
suggest, and which is, therefore, to be deduced from them, is that
whenever one person is by circumstances placed in such a position with
regard to another that every one of ordinary sense who did think would
at once recognize that if he did not use ordinary care and skill in his
own conduct with regard to those circumstances he would cause danger of
injury to the person or property of the other, a duty arises to use
ordinary care and skill to avoid such danger. Without displacing the
other propositions to which allusion has been made as applicable to the
particular circumstances in respect of which they have been enunciated,
this proposition includes, I think, all the recognized cases of
liability. It is the only proposition which covers them all. It may,
therefore, safely be affirmed to be a true proposition, unless some
obvious case can be stated in which the liability must be admitted to
exist, and which yet is not within this proposition. There is no such
case. Let us apply this proposition to the case of one person supplying
goods or machinery or instruments or utensils, or the like, for the
purpose of their being used by another person, but with whom there is no
contract as to the supply. The proposition will stand thus: whenever one
person supplies goods, or machinery, or the like, for the purpose of
their being used by another person under such circumstances that every
one of ordinary sense would, if he thought, recognize at once that
unless he used ordinary care and skill with regard to the condition of
the thing supplied or the mode of supplying it, there will be danger of
injury to the person or property of him for whose use the thing is
supplied and who is to use it, a duty arises to use ordinary care and
skill as to the condition or manner of supplying such thing. And for a
neglect of such ordinary care or skill whereby injury happens, a legal
liability arises to be enforced by an action for negligence. This
includes the case of goods, etc., supplied to be used immediately by a
particular person or persons, or one of a class of persons, where it
would be obvious to the person supplying, if he thought that the goods
would in all probability be used at once by such persons before a
reasonable opportunity for discovering any defect which might exist, and
where the thing supplied would be of such a nature that neglect of
ordinary care or skill as to its condition or the manner of supplying it
would probably cause danger to the person or property of the person for
whose use it was supplied, and who was about to use it. It would exclude
a case in which the goods are supplied under circumstances in which it
would be a chance by whom they would be used or whether they would be
used or not, or whether they would be used before there would probably
be means of observing any defect, or where the goods would be of such a
nature that a want of care or skill as to their condition or the manner
of supplying them would not probably produce danger of injury to person
or property. The cases of vendor and purchaser and lender and hirer
under contract need not be considered, as the liability arises under the
contract, and not merely as a duty imposed by law, though it may not be
useless to observe that it seems difficult to import the implied
obligation into the contract except in cases in which if there were no
contract between the parties the law would, according to the rule above
stated, imply the duty.

Examining the rule which has been above enunciated with the cases which
have been decided with regard to goods supplied for the purpose of being
used by persons with whom there is no contract, the first case to be
considered is inevitably Langridge _v._ Levy, 2 M. & W. 519; 4 id. 337.
It is not an easy case to act upon. It is not, it cannot be, accurately
reported; the declaration is set out; the evidence is assumed to be
reported; the questions left to the jury are stated. And then it is said
that a motion was made to enter a nonsuit in pursuance of leave reserved
on particular grounds. These grounds do not raise the question of fraud
at all, but only the question of remoteness. And although the question
of fraud seems in a sense to have been left to the jury, yet no question
was, according to the report, left to them as to whether the plaintiff
acted on the faith of the fraudulent misrepresentation, which is,
nevertheless, a necessary question in a case of fraudulent
misrepresentation. The report of the argument makes the object of the
argument depend entirely upon an assumed motion to arrest the judgment,
which raises always a discussion depending entirely on the form of the
declaration, and the effect on it of a verdict, in respect of which it
is assumed that all questions were left to the jury. If this was the
point taken the report of the evidence and of the questions left to the
jury is idle! The case was decided on the ground of a fraudulent
misrepresentation as stated in the declaration. It is inferred that the
defendant intended the representation to be communicated to the son. Why
he should have such an intention in fact it seems difficult to
understand. His immediate object must have been to induce the father to
buy and pay for the gun. It must have been wholly indifferent to him
whether, after the sale and payment, the gun would be used or not by the
son. I cannot hesitate to say that, in my opinion, the case is a wholly
unsatisfactory case to act on as an authority. But taking the case to be
decided on the ground of a fraudulent misrepresentation made
hypothetically to the son, and acted upon by him, such a decision upon
such a ground in no way negatives the proposition that the action might
have been supported on the ground of negligence without fraud. It seems
to be a case which is within the proposition enunciated in this
judgment, and in which the action might have been supported without
proof of actual fraud. And this seems to be the meaning of Cleasby, B.,
in the observations he made on Langridge _v._ Levy, _supra_, in the case
of George _v._ Skivington, L. R. 5 Ex. 1, 5. In that case the
proposition laid down in that judgment is clearly adopted. The ground of
the decision is that the article was, to the knowledge of the defendant,
supplied for the use of the wife and for her immediate use. And
certainly, if he or any one in his position had thought at all, it must
have been obvious that a want of ordinary care or skill in preparing the
prescription sold would endanger the personal safety of the wife.

In Corby _v._ Hill, 4 C. B. (N. S.) 556, it is stated by the Lord Chief
Justice that an allurement was held out to the plaintiff. And Willes,
J., stated that the defendant had no right to set a trap for the
plaintiff. But in the form of declaration suggested by Willes, J., on p.
567, there is no mention of allurement, or invitation or trap. The facts
suggested in that form are, “that the plaintiff had license to go on the
road, that he was in consequence accustomed and likely to pass along it,
that the defendant knew of that custom and probability, that the
defendant negligently placed slates in such a manner as to be likely to
prove dangerous to persons driving along the road, that the plaintiff
drove along the road, being by reason of the license lawfully on the
road, and that he was injured by the obstruction.” It is impossible to
state a case more exactly within the proposition laid down in this
judgment. In Smith _v._ London & St. Katharine Docks Co., L. R. 3 C. P.
326, the phrase is again used of invitation to the plaintiff by the
defendants. Again, let it be observed that there is no objection to the
phrase as applied to the case. But the real value of the phrase may not
improperly be said to be that invitation imports knowledge by the
defendant of the probable use by the plaintiff of the article supplied,
and therefore carries with it the relation between the parties which
establishes the duty. In Indermaur _v._ Dames, L. R. 1 C. P. 274, L. R.
2 C. P. 311, reliance is again placed upon a supposed invitation of the
plaintiff by the defendant. But, again, it is hardly possible to state
facts which bring a case more completely within the definition of the
present judgment. In Winterbottom _v._ Wright, 10 M. & W. 109, it was
held that there was no duty cast upon the defendant with regard to the
plaintiff. The case was decided on what was equivalent to a general
demurrer to the declaration. And the declaration does not seem to show
that the defendant, if he had thought about it, must have known, or
ought to have known, that the coach would be necessarily or probably
driven by the plaintiff, or by any class of which he could be said to be
one, or that it would be so driven within any time which would make it
probable that the defect would not be observed. The declaration relied
too much on contracts entered into with other persons than the
plaintiff. The facts alleged did not bring the case within the
proposition herein enunciated. It was an attempt to establish a duty
toward all the world. The case was decided on the ground of remoteness.
And it is as to too great a remoteness that the observation of Lord
Abinger is pointed, when he says that the doctrine of Langridge _v._
Levy, _supra_, is not to be extended. In Francis _v._ Cockrell, L. R. 5
Q. B. 501, the decision is put by some of the judges on an implied
contract between the plaintiff and the defendant. But Cleasby, B. (p.
515), puts it upon the duty raised by the knowledge of the defendant
that the stand was to be used immediately by persons of whom the
plaintiff was one. In other words, he acts upon the rule above laid
down. In Collis _v._ Selden, L. R. 3 C. P. 495, it was held that the
declaration disclosed no duty. And obviously, the declaration was too
uncertain. There is nothing to show that the defendant knew more of the
probability of the plaintiff rather than any other of the public being
near the chandelier. There is nothing to show that the plaintiff was
more likely to be in the public-house than any other member of the
public. There is nothing to show how soon after the hanging of the
chandelier any one might be expected or permitted to enter the room in
which it was. The facts stated do not bring it within the rule. There is
an American case: Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455,
cited in Mr. Horace Smith’s Treatise on the Law of Negligence, p. 88,
note (t), which goes a very long way. I doubt whether it does not go too
far. In Longmeid _v._ Holliday, 6 Ex. 761, a lamp was sold to the
plaintiff to be used by the wife. The jury were not satisfied that the
defendant knew of the defect in the lamp. If he did, there was fraud; if
he did not, there seems to have been no evidence of negligence. If there
was fraud, the case was more than within the rule. If there was no fraud
the case was not brought by other circumstances within the rule. In
Gautret _v._ Egerton, L. R. 2 C. P. 374, the declaration was held by
Willes, J., to be bad on demurrer, because it did not show that the
defendant had any reason to suppose that persons going to the docks
would not have ample means of seeing the holes and cuttings relied on.
He does not say there must be fraud in order to support the action. He
says there must be something like fraud. He says: “Every man is bound
not wilfully to deceive others.” And then, in the alternative, he says:
“or to do any act which may place them in danger.” There seems to be no
case in conflict with the rule above deduced from well admitted cases. I
am, therefore, of opinion that it is a good, safe, and just rule.

I cannot conceive that if the facts were proved which would make out the
proposition I have enunciated, the law can be that there would be no
liability. Unless that be true, the proposition must be true. If it be
the rule the present case is clearly within it. This case is also, I
agree, within that which seems to me to be a minor proposition, namely,
the proposition which has been often acted upon, that there was in a
sense an invitation of the plaintiff by the defendant to use the stage.
The appeal must, in my opinion, be allowed, and judgment must be entered
for the plaintiff.

COTTON, L. J., BOWEN, L. J., concurs in the judgment I am about to read.
[The opinion holds defendant liable, on the ground that he must be
considered as having invited the workman to use the dock and all
appliances provided by the dock-owner as incident to the use of the
dock; and that he was under obligation to take reasonable care that at
the time the appliances provided for immediate use in the dock were
furnished by him they were in a fit state to be used. The opinion then
proceeds as follows:—]

This decides this appeal in favor of the plaintiff, and I am unwilling
to concur with the Master of the Rolls in laying down unnecessarily the
larger principle which he entertains, inasmuch as there are many cases
in which the principle was impliedly negatived.

Take, for instance, the case of Langridge _v._ Levy, _supra_, to which
the principle, if it existed, would have applied. But the judges who
decided that case based their judgment on the fraudulent representation
made to the father of the plaintiff by the defendant. In other cases
where the decision has been referred to, judges have treated fraud as
the ground of the decision; as was done by Coleridge, J., in Blackmore
_v._ Bristol & Exeter Ry. Co., 8 E. & B. 1035; and in Collis _v._
Selden, L. R. 3 C. P. 495, Willes, J., says that the judgment in
Langridge _v._ Levy, _supra_, was based on the fraud of the defendant.
This impliedly negatives the existence of the larger general principle
which is relied on, and the decisions in Collis _v._ Selden, _supra_,
and in Longmeid _v._ Holliday, _supra_ (in each of which the plaintiff
failed), are, in my opinion, at variance with the principle contended
for. The case of George _v._ Skivington, _supra_, and especially what is
said by Cleasby, B., in giving judgment in that case, seems to support
the existence of the general principle. But it is not in terms laid down
that any such principle exists, and the case was decided by Cleasby, B.,
on the ground that the negligence of the defendant which was his own
personal negligence was equivalent, for the purposes of that action, to
fraud, on which (as he said) the decision in Langridge _v._ Levy,
_supra_, was based.[174]

In declining to concur in laying down the principle enunciated by the
Master of the Rolls, I in no way intimate any doubt as to the principle
that any one who leaves a dangerous instrument, as a gun, in such a way
as to cause danger, or who without due warning supplies to others for
use an instrument or thing which to his knowledge, from its construction
or otherwise, is in such a condition as to cause danger, not necessarily
incident to the use of such an instrument or thing, is liable for injury
caused to others by reason of his negligent act.

For the reasons stated I agree that the plaintiff is entitled to
judgment, though I do not entirely concur with the reasoning of the
Master of the Rolls.

                                                    _Judgment reversed._


                  MacPHERSON _v._ BUICK MOTOR COMPANY
              COURT OF APPEALS, NEW YORK, MARCH 14, 1916.
                _Reported in 217 New York Reports, 382._

CARDOZO, J. The defendant is a manufacturer of automobiles. It sold an
automobile to a retail dealer. The retail dealer resold to the
plaintiff. While the plaintiff was in the car it suddenly collapsed. He
was thrown out and injured. One of the wheels was made of defective
wood, and its spokes crumbled into fragments. The wheel was not made by
the defendant; it was bought from another manufacturer. There is
evidence, however, that its defects could have been discovered by
reasonable inspection, and that inspection was omitted. There is no
claim that the defendant knew of the defect and wilfully concealed it.
The case, in other words, is not brought within the rule of Kuelling
_v._ Lean Mfg. Co., 183 N. Y. 78, 75 N. E. 1098, 2 L. R. A. (N. S.) 303,
111 Am. St. Rep. 691, 5 Ann. Cas. 124. The charge is one, not of fraud,
but of negligence. The question to be determined is whether the
defendant owed a duty of care and vigilance to any one but the immediate
purchaser.

The foundations of this branch of the law, at least in this state, were
laid in Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A poison
was falsely labelled. The sale was made to a druggist, who in turn sold
to a customer. The customer recovered damages from the seller who
affixed the label. “The defendant’s negligence,” it was said, “put human
life in imminent danger.” A poison, falsely labelled, is likely to
injure any one who gets it. Because the danger is to be foreseen, there
is a duty to avoid the injury. Cases were cited by way of illustration
in which manufacturers were not subject to any duty irrespective of
contract. The distinction was said to be that their conduct, though
negligent, was not likely to result in injury to any one except the
purchaser. We are not required to say whether the chance of injury was
always as remote as the distinction assumes. Some of the illustrations
might be rejected to-day. The principle of the distinction is, for
present purposes, the important thing. Thomas _v._ Winchester became
quickly a landmark of the law. In the application of its principle there
may, at times, have been uncertainty or even error. There has never in
this state been doubt or disavowal of the principle itself. The chief
cases are well known, yet to recall some of them will be helpful. Loop
_v._ Litchfield, 42 N. Y. 351, 1 Am. Rep. 513, is the earliest. It was
the case of a defect in a small balance wheel used on a circular saw.
The manufacturer pointed out the defect to the buyer, who wished a cheap
article and was ready to assume the risk. The risk can hardly have been
an imminent one, for the wheel lasted five years before it broke. In the
meanwhile the buyer had made a lease of the machinery. It was held that
the manufacturer was not answerable to the lessee. Loop _v._ Litchfield
was followed in Losee _v._ Clute, 51 N. Y. 494, 10 Am. Rep. 638, the
case of the explosion of a steam boiler. That decision has been
criticized (Thompson on Negligence, 233; Shearman & Redfield on
Negligence, [6th ed.] § 117); but it must be confined to its special
facts. It was put upon the ground that the risk of injury was too
remote. The buyer in that case had not only accepted the boiler, but had
tested it. The manufacturer knew that his own test was not the final
one. The finality of the test has a bearing on the measure of diligence
owing to persons other than the purchaser. Beven, Negligence, (3d ed.)
pp. 50, 51, 54; Wharton, Negligence, (2d ed.) § 134.

These early cases suggest a narrow construction of the rule. Later
cases, however, evince a more liberal spirit. First in importance is
Devlin _v._ Smith, 89 N. Y. 470, 42 Am. Rep. 311. The defendant, a
contractor, built a scaffold for a painter. The painter’s servants were
injured. The contractor was held liable. He knew that the scaffold, if
improperly constructed, was a most dangerous trap. He knew that it was
to be used by the workmen. He was building it for that very purpose.
Building it for their use, he owed them a duty, irrespective of his
contract with their master, to build it with care.

From Devlin _v._ Smith we pass over intermediate cases and turn to the
latest case in this court in which Thomas _v._ Winchester was followed.
That case is Statler _v._ Ray Mfg. Co., 195 N. Y. 478, 480, 88 N. E.
1063. The defendant manufactured a large coffee urn. It was installed in
a restaurant. When heated, the urn exploded and injured the plaintiff.
We held that the manufacturer was liable. We said that the urn “was of
such a character inherently that, when applied to the purposes for which
it was designed, it was liable to become a source of great danger to
many people if not carefully and properly constructed.”

It may be that Devlin _v._ Smith and Statler _v._ Ray Mfg. Co. have
extended the rule of Thomas _v._ Winchester. If so, this court is
committed to the extension. The defendant argues that things imminently
dangerous to life are poisons, explosives, deadly weapons—things whose
normal function it is to injure or destroy. But whatever the rule in
Thomas _v._ Winchester may once have been, it has no longer that
restricted meaning. A scaffold (Devlin _v._ Smith, _supra_) is not
inherently a destructive instrument. It becomes destructive only if
imperfectly constructed. A large coffee urn (Statler _v._ Ray Mfg. Co.,
_supra_) may have within itself, if negligently made, the potency of
danger, yet no one thinks of it as an implement whose normal function is
destruction. What is true of the coffee urn is equally true of bottles
of aerated water. Torgesen _v._ Schultz, 192 N. Y. 156, 84 N. E. 956, 18
L. R. A. (N. S.) 726, 127 Am. St. Rep. 894. We have mentioned only cases
in this court. But the rule has received a like extension in our courts
of intermediate appeal. In Burke _v._ Ireland, 26 App. Div. 487, 50 N.
Y. Supp. 369, in an opinion by Cullen, J., it was applied to a builder
who constructed a defective building; in Kahner _v._ Otis Elevator Co.,
96 App. Div. 169, 89 N. Y. Supp. 185, to the manufacturer of an
elevator; in Davies _v._ Pelham Hod Elevating Co., 65 Hun, 573, 20 N. Y.
Supp. 523, affirmed in this court without opinion, 146 N. Y. 363, 41 N.
E. 88, to a contractor who furnished a defective rope with knowledge of
the purpose for which the rope was to be used. We are not required at
this time either to approve or to disapprove the application of the rule
that was made in these cases. It is enough that they help to
characterize the trend of judicial thought.

Devlin _v._ Smith was decided in 1882. A year later a very similar case
came before the Court of Appeal in England (Heaven _v._ Pender, 11 Q. B.
D. 503). We find in the opinion of Brett, M. R., afterwards Lord Esher,
the same conception of a duty, irrespective of contract, imposed upon
the manufacturer by the law itself:

“Whenever one person supplies goods or machinery, or the like, for the
purpose of their being used by another person under such circumstances
that every one of ordinary sense would, if he thought, recognize at once
that unless he used ordinary care and skill with regard to the condition
of the thing supplied, or the mode of supplying it, there will be danger
of injury to the person or property of him for whose use the thing is
supplied, and who is to use it, a duty arises to use ordinary care and
skill as to the condition or manner of supplying such thing.”

He then points out that for a neglect of such ordinary care or skill
whereby injury happens, the appropriate remedy is an action for
negligence. The right to enforce this liability is not to be confined to
the immediate buyer. The right, he says, extends to the persons or class
of persons for whose use the thing is supplied. It is enough that the
goods “would in all probability be used at once ... before a reasonable
opportunity for discovering any defect which might exist,” and that the
thing supplied is of such a nature “that a neglect of ordinary care or
skill as to its condition or the manner of supplying it would probably
cause danger to the person or property of the person for whose use it
was supplied, and who was about to use it.” On the other hand, he would
exclude a case “in which the goods are supplied under circumstances in
which it would be a chance by whom they would be used or whether they
would be used or not, or whether they would be used before there would
probably be means of observing any defect,” or where the goods are of
such a nature that “a want of care or skill as to their condition or the
manner of supplying them would not probably produce danger of injury to
person or property.” What was said by Lord Esher in that case did not
command the full assent of his associates. His opinion has been
criticized “as requiring every man to take affirmative precautions to
protect his neighbors as well as to refrain from injuring them.” Bohlen,
Affirmative Obligations in the Law of Torts, 44 Am. Law Reg. (N. S.)
341. It may not be an accurate exposition of the law of England. Perhaps
it may need some qualification even in our own state. Like most attempts
at comprehensive definition, it may involve errors of inclusion and of
exclusion. But its tests and standards, at least in their underlying
principles with whatever qualification may be called for as they are
applied to varying conditions, are the tests and standards of our law.

We hold, then, that the principle of Thomas _v._ Winchester is not
limited to poisons, explosives, and things of like nature, to things
which in their normal operation are implements of destruction. If the
nature of a thing is such that it is reasonably certain to place life
and limb in peril when negligently made, it is then a thing of danger.
Its nature gives warning of the consequences to be expected. If to the
element of danger there is added knowledge that the thing will be used
by persons other than the purchaser, and used without new tests, then,
irrespective of contract, the manufacturer of this thing of danger is
under a duty to make it carefully. That is as far as we are required to
go for the decision of this case. There must be knowledge of a danger,
not merely possible, but probable. It is possible to use almost anything
in a way that will make it dangerous if defective. That is not enough to
charge the manufacturer with a duty independent of his contract. Whether
a given thing is dangerous may be sometimes a question for the court and
sometimes a question for the jury. There must also be knowledge that in
the usual course of events the danger will be shared by others than the
buyer. Such knowledge may often be inferred from the nature of the
transaction. But it is possible that even knowledge of the danger and of
the use will not always be enough. The proximity or remoteness of the
relation is a factor to be considered. We are dealing now with the
liability of the manufacturer of the finished product, who puts it on
the market to be used without inspection by his customers. If he is
negligent, where danger is to be foreseen, a liability will follow.

We are not required at this time to say that it is legitimate to go back
of the manufacturer of the finished product and hold the manufacturers
of the component parts. To make their negligence a cause of imminent
danger, an independent cause must often intervene; the manufacturer of
the finished product must also fail in his duty of inspection. It may be
that in those circumstances the negligence of the earlier members of the
series is too remote to constitute, as to the ultimate user, an
actionable wrong. Beven on Negligence, (3d ed.) 50, 51, 54; Wharton on
Negligence, (2d ed.) § 134; Leeds _v._ N. Y. Tel. Co., 178 N. Y. 118, 70
N. E. 219; Sweet _v._ Perkins, 196 N. Y. 482, 90 N. E. 50; Hayes _v._
Hyde Park, 153 Mass. 514, 516, 27 N. E. 522, 12 L. R. A. 249. We leave
that question open. We shall have to deal with it when it arises. The
difficulty which it suggests is not present in this case. There is here
no break in the chain of cause and effect. In such circumstances, the
presence of a known danger, attendant upon a known use, makes vigilance
a duty. We have put aside the notion that the duty to safeguard life and
limb, when the consequences of negligence may be foreseen, grows out of
contract and nothing else. We have put the source of the obligation
where it ought to be. We have put its source in the law.

From this survey of the decisions, there thus emerges a definition of
the duty of a manufacturer which enables us to measure this defendant’s
liability. Beyond all question, the nature of an automobile gives
warning of probable danger if its construction is defective. This
automobile was designed to go 50 miles an hour. Unless its wheels were
sound and strong, injury was almost certain. It was as much a thing of
danger as a defective engine for a railroad. The defendant knew the
danger. It knew also that the car would be used by persons other than
the buyer. This was apparent from its size; there were seats for three
persons. It was apparent also from the fact that the buyer was a dealer
in cars, who bought to resell. The maker of this car supplied it for the
use of purchasers from the dealer just as plainly as the contractor in
Devlin _v._ Smith supplied the scaffold for use by the servants of the
owner. The dealer was indeed the one person of whom it might be said
with some approach to certainty that by him the car would not be used.
Yet the defendant would have us say that he was the one person whom it
was under a legal duty to protect. The law does not lead us to so
inconsequent a conclusion. Precedents drawn from the days of travel by
stage-coach do not fit the conditions of travel to-day. The principle
that the danger must be imminent does not change, but the things subject
to the principle do change. They are whatever the needs of life in a
developing civilization requires them to be.

In reaching this conclusion, we do not ignore the decisions to the
contrary in other jurisdictions. It was held in Cadillac Co. _v._
Johnson, 221 Fed. 801, 137 C. C. A. 279, L. R. A. 1915E, 287, that an
automobile is not within the rule of Thomas _v._ Winchester. There was,
however, a vigorous dissent. Opposed to that decision is one of the
Court of Appeals of Kentucky. Olds Motor Works _v._ Shaffer, 145 Ky.
616, 140 S. W. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. 1913B, 689. The
earlier cases are summarized by Judge Sanborn in Huset _v._ J. I. Case
Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303.
Some of them, at first sight inconsistent with our conclusion, may be
reconciled upon the ground that the negligence was too remote, and that
another cause had intervened. But even when they cannot be reconciled
the difference is rather in the application of the principle than in the
principle itself. Judge Sanborn says, for example, that the contractor
who builds a bridge, or the manufacturer who builds a car, cannot
ordinarily foresee injury to other persons than the owner as the
probable result. 120 Fed. 865, at page 867, 57 C. C. A. 237, at page
239, 61 L. R. A. 303. We take a different view. We think that injury to
others is to be foreseen not merely as a possible, but as an almost
inevitable result. See the trenchant criticism in Bohlen, _supra_, at
page 351. Indeed, Judge Sanborn concedes that his view is not to be
reconciled with our decision in Devlin _v._ Smith, _supra_. The doctrine
of that decision has now become the settled law of this state, and we
have no desire to depart from it.

In England the limits of the rule are still unsettled. Winterbottom _v._
Wright, 10 M. & W. 109, is often cited. The defendant undertook to
provide a mail coach to carry the mail bags. The coach broke down from
latent defects in its construction. The defendant, however, was not the
manufacturer. The court held that he was not liable for injuries to a
passenger. The case was decided on a demurrer to the declaration. Lord
Esher points out in Heaven _v._ Pender, _supra_, at page 513, that the
form of the declaration was subject to criticism. It did not fairly
suggest the existence of a duty aside from the special contract which
was the plaintiff’s main reliance. See the criticism of Winterbottom
_v._ Wright, in Bohlen, _supra_, at pages 281, 283. At all events, in
Heaven _v._ Pender, _supra_, the defendant, a dock owner, who put up a
staging outside a ship, was held liable to the servants of the
shipowner. In Elliot _v._ Hall, 15 Q. B. D. 315, the defendant sent out
a defective truck laden with goods which he had sold. The buyer’s
servants unloaded it, and were injured because of the defects. It was
held that the defendant was under a duty “not to be guilty of negligence
with regard to the state and condition of the truck.” There seems to
have been a return to the doctrine of Winterbottom _v._ Wright in Earl
_v._ Lubbock, [1905] 1 K. B. 253. In that case, however, as in the
earlier one, the defendant was not the manufacturer. He had merely made
a contract to keep the van in repair. A later case (White _v._ Steadman,
[1913] 3 K. B. 340, 348) emphasizes that element. A livery stable keeper
who sent out a vicious horse was held liable, not merely to his
customer, but also to another occupant of the carriage, and Thomas _v._
Winchester was cited and followed, White _v._ Steadman, _supra_, at
pages 348, 349. It was again cited and followed in Dominion Natural Gas
Co. _v._ Collins, [1909] A. C. 640, 646. From these cases a consistent
principle is with difficulty extracted. The English courts, however,
agree with ours in holding that one who invites another to make use of
an appliance is bound to the exercise of reasonable care. Caledonian Ry.
Co. _v._ Mulholland, [1898] A. C. 216, 227; Indermaur _v._ Dames, L. R.
1 C. P. 274. That at bottom is the underlying principle of Devlin _v._
Smith. The contractor who builds the scaffold invites the owner’s
workmen to use it. The manufacturer who sells the automobile to the
retail dealer invites the dealer’s customers to use it. The invitation
is addressed in the one case to determinate persons and in the other to
an indeterminate class, but in each case it is equally plain, and in
each its consequences must be the same.

There is nothing anomalous in a rule which imposes upon A., who has
contracted with B., a duty to C. and D. and others according as he knows
or does not know that the subject-matter of the contract is intended for
their use. We may find an analogy in the law which measures the
liability of landlords. If A. leases to B. a tumble-down house, he is
not liable, in the absence of fraud, to B.’s guests who enter it and are
injured. This is because B. is then under the duty to repair it, the
lessor has the right to suppose that he will fulfill that duty, and, if
he omits to do so, his guests must look to him. Bohlen, _supra_, at page
276. But if A. leases a building to be used by the lessee at once as a
place of public entertainment, the rule is different. There injury to
persons other than the lessee is to be foreseen, and foresight of the
consequences involves the creation of a duty. Junkermann _v._ Tilyou R.
Co., 213 N. Y. 404, 108 N. E. 190, L. R. A. 1915F, 700, and cases there
cited.

In this view of the defendant’s liability there is nothing inconsistent
with the theory of liability on which the case was tried. It is true
that the court told the jury that “an automobile is not an inherently
dangerous vehicle.” The meaning, however, is made plain by the context.
The meaning is that danger is not to be expected when the vehicle is
well constructed. The court left it to the jury to say whether the
defendant ought to have foreseen that the car, if negligently
constructed, would become “imminently dangerous.” Subtle distinctions
are drawn by the defendant between things inherently dangerous and
things imminently dangerous, but the case does not turn upon these
verbal niceties. If danger was to be expected as reasonably certain,
there was a duty of vigilance, and this whether you call the danger
inherent or imminent. In varying forms that thought was put before the
jury. We do not say that the court would not have been justified in
ruling as a matter of law that the car was a dangerous thing. If there
was any error, it was none of which the defendant can complain.

We think the defendant was not absolved from a duty of inspection
because it bought the wheels from a reputable manufacturer. It was not
merely a dealer in automobiles. It was a manufacturer of automobiles. It
was responsible for the finished product. It was not at liberty to put
the finished product on the market without subjecting the component
parts to ordinary and simple tests. Richmond & Danville R. R. Co. _v._
Elliott, 149 U. S. 266, 272, 13 Sup. Ct. 837, 37 L. Ed. 728. Under the
charge of the trial judge nothing more was required of it. The
obligation to inspect must vary with the nature of the thing to be
inspected. The more probable the danger the greater the need of caution.

There is little analogy between this case and Carlson _v._ Phoenix
Bridge Co., 132 N. Y. 273, 30 N. E. 750, where the defendant bought a
tool for a servant’s use. The making of tools was not the business in
which the master was engaged. Reliance on the skill of the manufacturer
was proper and almost inevitable. But that is not the defendant’s
situation. Both by its relation to the work and by the nature of its
business, it is charged with a stricter duty.

Other rulings complained of have been considered, but no error has been
found in them.

The judgment should be affirmed, with costs.

WILLARD BARTLETT, C. J. (dissenting). The plaintiff was injured in
consequence of the collapse of a wheel of an automobile manufactured by
the defendant corporation which sold it to a firm of automobile dealers
in Schenectady, who in turn sold the car to the plaintiff. The wheel was
purchased by the Buick Motor Company, ready made, from the Imperial
Wheel Company of Flint, Mich., a reputable manufacturer of automobile
wheels which had furnished the defendant with 80,000 wheels, none of
which had proved to be made of defective wood prior to the accident in
the present case. The defendant relied upon the wheel manufacturer to
make all necessary tests as to the strength of the material therein, and
made no such test itself. The present suit is an action for negligence,
brought by the subvendee of the motor car against the manufacturer as
the original vendor. The evidence warranted a finding by the jury that
the wheel which collapsed was defective when it left the hands of the
defendant. The automobile was being prudently operated at the time of
the accident, and was moving at a speed of only eight miles an hour.
There was no allegation or proof of any actual knowledge of the defect
on the part of the defendant, or any suggestion that any element of
fraud or deceit or misrepresentation entered into the sale.

The theory upon which the case was submitted to the jury by the learned
judge who presided at the trial was that, although an automobile is not
an inherently dangerous vehicle, it may become such if equipped with a
weak wheel; and that if the motor car in question, when it was put upon
the market was in itself inherently dangerous by reason of its being
equipped with a weak wheel, the defendant was chargeable with a
knowledge of the defect so far as it might be discovered by a reasonable
inspection and the application of reasonable tests. This liability, it
was further held, was not limited to the original vendee, but extended
to a subvendee like the plaintiff, who was not a party to the original
contract of sale.

I think that these rulings, which have been approved by the Appellate
Division, extend the liability of the vendor of a manufactured article
further than any case which has yet received the sanction of this court.
It has heretofore been held in this state that the liability of the
vendor of a manufactured article for negligence arising out of the
existence of defects therein does not extend to strangers injured in
consequence of such defects, but is confined to the immediate vendee.
The exceptions to this general rule which have thus far been recognized
in New York are cases in which the article sold was of such a character
that danger to life or limb was involved in the ordinary use thereof; in
other words, where the article sold was inherently dangerous. As has
already been pointed out, the learned trial judge instructed the jury
that an automobile is not an inherently dangerous vehicle.

The late Chief Justice Cooley of Michigan, one of the most learned and
accurate of American law writers, states the general rule thus:

“The general rule is that a contractor, manufacturer, vendor or
furnisher of an article is not liable to third parties who have no
contractual relations with him, for negligence in the construction,
manufacture or sale of such article.” 2 Cooley on Torts, (3d ed.) 1486.

The leading English authority in support of this rule, to which all the
later cases on the same subject refer, is Winterbottom _v._ Wright, 10
Meeson & Welsby, 109, which was an action by the driver of a stage-coach
against a contractor who had agreed with the postmaster general to
provide and keep the vehicle in repair for the purpose of conveying the
royal mail over a prescribed route. The coach broke down and upset,
injuring the driver, who sought to recover against the contractor on
account of its defective construction. The Court of Exchequer denied him
any right of recovery on the ground that there was no privity of
contract between the parties, the agreement having been made with the
postmaster general alone.

“If the plaintiff can sue,” said Lord Abinger, the Chief Baron, “every
passenger or even any person passing along the road who was injured by
the upsetting of the coach might bring a similar action. Unless we
confine the operation of such contracts as this to the parties who enter
into them the most absurd and outrageous consequences, to which I can
see no limit, would ensue.”

The doctrine of that decision was recognized as the law of this state by
the leading New York case of Thomas _v._ Winchester, 6 N. Y. 397, 408,
57 Am. Dec. 455, which, however, involved an exception to the general
rule. There the defendant, who was a dealer in medicines, sold to a
druggist a quantity of belladonna, which is a deadly poison, negligently
labelled as extract of dandelion. The druggist in good faith used the
poison in filling a prescription calling for the harmless dandelion
extract, and the plaintiff for whom the prescription was put up was
poisoned by the belladonna. This court held that the original vendor was
liable for the injuries suffered by the patient. Chief Judge Ruggles,
who delivered the opinion of the court, distinguished between an act of
negligence imminently dangerous to the lives of others and one that is
not so, saying:

“If A. build a wagon and sell it to B., who sells it to C., and C. hires
it to D., who in consequence of the gross negligence of A. in building
the wagon is overturned and injured, D. cannot recover damages against
A., the builder. A.’s obligation to build the wagon faithfully arises
solely out of his contract with B. The public have nothing to do with
it.... So, for the same reason, if a horse be defectively shod by a
smith, and a person hiring the horse from the owner is thrown and
injured in consequence of the smith’s negligence in shoeing, the smith
is not liable for the injury.”

In Torgesen _v._ Schultz, 192 N. Y. 156, 159, 84 N. E. 956, 18 L. R. A.
(N. S.) 726, 127 Am. St. Rep. 894, the defendant was the vendor of
bottles of aerated water which were charged under high pressure and
likely to explode unless used with precaution when exposed to sudden
changes of temperature. The plaintiff, who was a servant of the
purchaser, was injured by the explosion of one of these bottles. There
was evidence tending to show that it had not been properly tested in
order to insure users against such accidents. We held that the defendant
corporation was liable notwithstanding the absence of any contract
relation between it and the plaintiff “under the doctrine of Thomas _v._
Winchester, _supra_, and similar cases based upon the duty of the vendor
of an article dangerous in its nature or likely to become so in the
course of the ordinary usage to be contemplated by the vendor, either to
exercise due care to warn users of the danger or to take reasonable care
to prevent the article sold from proving dangerous when subjected only
to customary usage.”

The character of the exception to the general rule limiting liability
for negligence to the original parties to the contract of sale, was
still more clearly stated by Judge Hiscock, writing for the court in
Statler _v._ Ray Manufacturing Co., 195 N. Y. 478, 482, 88 N. E. 1063,
where he said that:

“In the case of an article of an inherently dangerous nature, a
manufacturer may become liable for a negligent construction which, when
added to the inherent character of the appliance, makes it imminently
dangerous, and causes or contributes to a resulting injury not
necessarily incident to the use of such an article if properly
constructed, but naturally following from a defective construction.”

In that case the injuries were inflicted by the explosion of a battery
of steam-driven coffee urns, constituting an appliance liable to become
dangerous in the course of ordinary usage.

The case of Devlin _v._ Smith, 89 N. Y. 470, 42 Am. Rep. 311, is cited
as an authority in conflict with the view that the liability of the
manufacturer and vendor extends to third parties only when the article
manufactured and sold is inherently dangerous. In that case the builder
of a scaffold 90 feet high, which was erected for the purpose of
enabling painters to stand upon it, was held to be liable to the
administratrix of a painter who fell therefrom and was killed, being at
the time in the employ of the person for whom the scaffold was built. It
is said that the scaffold, if properly constructed, was not inherently
dangerous, and hence that this decision affirms the existence of
liability in the case of an article not dangerous in itself, but made so
only in consequence of negligent construction. Whatever logical force
there may be in this view it seems to me clear from the language of
Judge Rapallo, who wrote the opinion of the court, that the scaffold was
deemed to be an inherently dangerous structure, and that the case was
decided as it was because the court entertained that view. Otherwise he
would hardly have said, as he did, that the circumstances seemed to
bring the case fairly within the principle of Thomas _v._ Winchester.

I do not see how we can uphold the judgment in the present case without
overruling what has been so often said by this court and other courts of
like authority in reference to the absence of any liability for
negligence on the part of the original vendor of an ordinary carriage to
any one except his immediate vendee. The absence of such liability was
the very point actually decided in the English case of Winterbottom _v._
Wright, _supra_, and the illustration quoted from the opinion of Chief
Judge Ruggles in Thomas _v._ Winchester, _supra_, assumes that the law
on the subject was so plain that the statement would be accepted almost
as a matter of course. In the case at bar the defective wheel on an
automobile, moving only eight miles an hour, was not any more dangerous
to the occupants of the car than a similarly defective wheel would be to
the occupants of a carriage drawn by a horse at the same speed, and yet,
unless the courts have been all wrong on this question up to the present
time, there would be no liability to strangers to the original sale in
the case of the horse-drawn carriage.

The rule upon which, in my judgment, the determination of this case
depends, and the recognized exceptions thereto, were discussed by
Circuit Judge Sanborn, of the United States Circuit Court of Appeals in
the Eighth Circuit, in Huset _v._ J. I. Case Threshing Machine Co., 120
Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303, in an opinion which reviews
all the leading American and English decisions on the subject up to the
time when it was rendered (1903). I have already discussed the leading
New York cases, but as to the rest I feel that I can add nothing to the
learning of that opinion or the cogency of its reasoning. I have
examined the cases to which Judge Sanborn refers, but if I were to
discuss them at length, I should be forced merely to paraphrase his
language, as a study of the authorities he cites has led me to the same
conclusion; and the repetition of what has already been so well said
would contribute nothing to the advantage of the bench, the bar, or the
individual litigants whose case is before us.

A few cases decided since his opinion was written, however, may be
noticed. In Earl _v._ Lubbock, [1905] L. R. 1 K. B. Div. 253, the Court
of Appeal in 1904 considered and approved the propositions of law laid
down by the Court of Exchequer in Winterbottom _v._ Wright, _supra_,
declaring that the decision in that case, since the year 1842, had stood
the test of repeated discussion. The Master of the Rolls approved the
principles laid down by Lord Abinger as based upon sound reasoning; and
all the members of the court agreed that his decision was a controlling
authority which must be followed. That the federal courts still adhere
to the general rule, as I have stated it, appears by the decision of the
Circuit Court of Appeals in the Second Circuit, in March, 1915, in the
case of Cadillac Motor Car Co. _v._ Johnson, 221 Fed. 801, 137 C. C. A.
279, L. R. A. 1915E, 287. That case, like this, was an action by a
subvendee against a manufacturer of automobiles for negligence in
failing to discover that one of its wheels was defective, the court
holding that such an action could not be maintained. It is true there
was a dissenting opinion in that case, but it was based chiefly upon the
proposition that rules applicable to stage-coaches are archaic when
applied to automobiles, and that if the law did not afford a remedy to
strangers to the contract, the law should be changed. If this be true,
the change should be effected by the Legislature and not by the courts.
A perusal of the opinion in that case and in the Huset Case will
disclose how uniformly the courts throughout this country have adhered
to the rule and how consistently they have refused to broaden the scope
of the exceptions. I think we should adhere to it in the case at bar,
and therefore I vote for a reversal of this judgment.

HISCOCK, CHASE, and CUDDEBACK, JJ., concur with CARDOZO, J., and HOGAN,
J., concurs in result. WILLARD BARTLETT, C. J., reads dissenting
opinion. POUND, J., not voting.

Judgment affirmed.[175]


                              SECTION VIII
               CONTRIBUTORY CULPABLE CONDUCT OF PLAINTIFF


                           NEAL _v._ GILLETT
         SUPREME COURT OF ERRORS, CONNECTICUT, JUNE TERM, 1855.
               _Reported in 23 Connecticut Reports, 437._

Action to recover for personal injury alleged to have been incurred
through the negligence of the defendants. Plaintiff claimed that the
defendants were guilty of gross negligence, as the cause of the injury;
and that, if the jury should so find, the plaintiff was entitled to
recover notwithstanding there had been on his part a want of mere
ordinary care which might have essentially contributed to produce the
injury complained of. The Court charged the jury in conformity to this
claim of the plaintiff. Verdict for plaintiff. Motion for new trial.

SANFORD, J. [Omitting opinion on another point.][176] The question
presented upon the second point, is, whether a plaintiff is entitled to
recover for an injury, produced by the combined operation of his own
want of “ordinary care,” and the gross negligence of the defendant. The
exact boundaries between the several degrees of care and their
correlative degrees of carelessness, or negligence, are not always
clearly defined or easily pointed out. We think, however, that by
“ordinary care,” is meant “that degree of care which may reasonably be
expected from a person in the party’s situation” (41 E. C. L. R.
425),[177] that is, “reasonable care” (19 Conn. R. 572); and that “gross
negligence” imports not a malicious intention or design to produce a
particular injury, but a thoughtless disregard of consequences; the
absence, rather than the actual exercise, of volition with reference to
results.

What is the measure of “reasonable care” must of course depend upon the
circumstances of the particular situation in which the party at the time
is placed. But “reasonable care,” every one, in the enjoyment of his
rights, and the performance of his duties, is bound to exercise at all
times and under all circumstances. When he has done that, he is
answerable to no one for any consequences which ensue, for he has done
all his duty; when he has done less than that he is in fault, and if an
injury ensue to another in consequence of such fault, he is responsible
for it; if to himself, he must bear it. If in the enjoyment of their
lawful rights by two persons, at the same time and place, reasonable
care is exercised by both, and an injury accrues to one of them, it must
be borne by the suffering party as a providential visitation. If such
care is exercised by neither party, and an injury accrues to one of
them, he must bear it, for he was himself in fault. And we hold that
when the gist of the action is negligence merely,—whether gross or
slight, the plaintiff is not entitled to recover, when his own want of
ordinary, or reasonable care, has essentially contributed to his injury;
because he is himself in fault, and because of the difficulty, if not
impossibility, of ascertaining in what proportions the parties
respectively, by their negligence, have contributed to the production of
the injury, and whether it would have been produced at all but by the
combined operation of the negligence of both. When the injury is
intentional, and designed, other considerations apply.

For anything this Court can see, the negligence of the defendants,
however gross, might have been entirely harmless, but for the
plaintiff’s own wrongful contribution to the combined causes which
produced his injury. And so too, for anything this Court can see,
although the defendants’ negligence was gross, and fully adequate to the
production of the injury, yet the plaintiff’s exercise of reasonable
care would have saved him from its consequences.

In the recent case of Park _v._ O’Brien, 23 Conn. R. 339, this Court
said, “It is necessary for the plaintiff, to prove, first, negligence on
the part of the defendant, and, secondly, that the injury to the
plaintiff occurred in consequence of that negligence. But in order to
prove this latter point, the plaintiff must show that such injury was
not caused, wholly, or in part, by his own negligence;[178] for although
the defendant was guilty of negligence, if the plaintiff’s negligence
contributed essentially to the injury, it is obvious that it did not
occur by reason of the defendant’s negligence.” “Hence, to say that the
plaintiff must show the latter” [the want of the plaintiff’s concurring
negligence], “is only saying that he must show that the injury was owing
to the negligence of the defendant.”

The same reasonable doctrine is sanctioned by other decisions, in our
own Court and elsewhere. Birge _v._ Gardiner, 19 Conn. R. 507; Beers
_v._ Housatonic R. R. Co., 19 Conn. R. 566, and cases there cited.

We think, therefore, that the charge of the Court, on this point, was
wrong, and that a new trial ought to be granted.

In this opinion the other judges concurred, except Ellsworth, J., who
was disqualified.

                                         _New trial to be granted._[179]


              PAYNE _v._ CHICAGO & ALTON RAILROAD COMPANY
                SUPREME COURT, MISSOURI, JUNE 25, 1895.
                _Reported in 129 Missouri Reports, 405._

Action for personal injuries alleged to be caused by the negligence of
defendant. Answer: a general denial, and a plea of contributory
negligence.[180]

The judge, at the request of plaintiff, gave the following instruction:—

“No. 7. One of the defences in this case interposed by the defendant is
that of negligence on the part of plaintiff, Claude Payne, directly
contributing to the injuries of which plaintiff complains; and the court
instructs the jury that the law devolves upon the defendant the burden
of proving such negligence by a preponderance of the evidence, and it is
not sufficient that the jury may believe from the evidence that the
plaintiff was simply guilty of negligence, but that the negligence of
plaintiff, and not that of the defendant, must be the proximate or
immediate cause of the injury, to excuse the defendant from liability.”

In the Circuit Court plaintiff had judgment. Defendant appealed.

MACFARLANE, J. Defendant complains of instruction 7 given the jury at
the request of plaintiff. The complaint is that the instruction
improperly defines contributory negligence.

Contributory negligence, as the word imports, implies the concurring
negligence of both plaintiff and defendant. The phrase is defined by
Beach as follows: “Contributory negligence, in its legal signification,
is such an act or omission on the part of a plaintiff, amounting to a
want of ordinary care, as, concurring or coöperating with the negligent
act of the defendant, is a proximate cause or occasion of the injury
complained of.” Beach, Cont. Neg. [2 ed.] sect. 7. The definition given
by Shearman & Redfield in their work on Negligence (sect. 61) is in
substance and effect the same.

If the negligence of either plaintiff or defendant is the sole cause of
the injury there could be no contributory negligence in the case. The
question for the jury is whether the plaintiff could “by the exercise of
such care and skill as he was bound to exercise, have avoided the
consequence of the defendant’s negligence.” Lord Blackburn, L. R. 3 App.
Cas. 1207. See, also, 4 Am. & Eng. Encyclopedia of Law, 18 & 19. It is
clear that there could be no contributory negligence unless there was
also negligence of defendant to which that of plaintiff could
contribute. Unless the negligence of defendant was the proximate cause
of the injury, there could be no liability. Unless the negligence of
plaintiff was a proximate cause of the injury, his action, on the ground
of contributory negligence, would not be defeated.

Testing the instruction by these rules, it cannot be approved. It tells
the jury that “the negligence of plaintiff, and not that of defendant,
must be the proximate or immediate cause of the injury to excuse the
defendant from liability.” They were told in effect that this result
would follow though “plaintiff was simply guilty of negligence.” The
jury may as well have been told that to defeat a recovery on the plea of
contributory negligence, it was necessary to find that the negligence of
plaintiff was the sole proximate cause of the injury. The instruction
ignored entirely concurring or contributory negligence of both parties,
which is one essential element of contributory negligence. There are no
degrees which distinguish the negligence made necessary by the law to
defeat a recovery. And negligence which is proximate or a cause of the
injury is sufficient. It does not matter that the concurring and
coöperating negligence of defendant was negligence, _per se_, such as
the violation of an ordinance, as in this case, or statute law.

The instruction is also misleading wherein it informs the jury that in
order for defendant to establish its plea of contributory negligence “it
is not sufficient that the jury may believe from the evidence that
plaintiff was simply guilty of negligence,” and as qualified or
explained, by what follows, does not correctly declare the law. The
negligence to defeat a recovery must be a proximate cause for the
injury, but need not be the sole proximate cause.

As the evidence on the issue of contributory negligence was very clear,
we think the errors in this instruction prejudicial and must cause a
reversal.[181]

                                _Judgment reversed, and cause remanded._


             BREESE, J., IN GALENA, &c. R. Co. _v._ JACOBS
                  (1858) _20 Illinois, 478, 496–497._

[After citing decisions in other jurisdictions.] It will be seen from
these cases that the question of liability does not depend absolutely on
the absence of all negligence on the part of the plaintiff, but upon the
relative degree of care or want of care as manifested by both parties;
for all care or negligence is at best but relative, the absence of the
highest possible degree of care showing the presence of some negligence,
slight as it may be. The true doctrine, therefore, we think, is, that in
proportion to the negligence of the defendant should be measured the
degree of care required of the plaintiff; that is to say, the more gross
the negligence manifested by the defendant, the less degree of care will
be required of the plaintiff to entitle him to recover.... We say, then,
that in this, as in all like cases, the degree of negligence must be
measured and considered, and whenever it shall appear that the
plaintiff’s negligence is comparatively slight and that of the defendant
gross, he shall not be deprived of his action.[182]


             UNITED STATES COMPILED STATUTES, 1913, § 8659.

In all actions hereafter brought against any such common carrier[183] by
railroad under or by virtue of any of the provisions of this Act to
recover damages for personal injuries to an employee, or where such
injuries have resulted in his death, the fact that the employee may have
been guilty of contributory negligence shall not bar a recovery, but the
damages shall be diminished by the jury in proportion to the amount of
negligence attributable to such employee: Provided, That no such
employee who may be injured or killed shall be held to have been guilty
of contributory negligence in any case where the violation by such
common carrier of any statute enacted for the safety of employees
contributed to the injury or death of such employee.[184] (Act of April
22, 1908, c. 149, § 3, 35 Stat. L. 66.)


          ENGLAND, WORKMEN’S COMPENSATION ACT, 1906, § 1 (c.)

If it is proved that the injury to a workman is attributable to the
serious and wilful misconduct of that workman, any compensation claimed
in respect of that injury shall, unless the injury results in death or
serious and permanent disablement, be disallowed.[185]


                             THE MAX MORRIS
         SUPREME COURT OF THE UNITED STATES, NOVEMBER 17, 1890.
              _Reported in 137 United States Reports, 1._

The case, as stated by the court, was as follows:—

This was a suit in Admiralty, brought in the District Court of the
United States for the Southern District of New York, by Patrick Curry
against the steamer Max Morris.[186]

The libel alleged that on the 27th of October, 1884, the libellant was
lawfully on board of that vessel, being employed to load coal upon her
by the stevedore who had the contract for loading the coal; that, on
that day, the libellant, while on the vessel, fell from her bridge to
the deck, through the negligence of those in charge of her, in having
removed from the bridge the ladder usually leading therefrom to the
deck, and in leaving open, and failing to guard, the aperture thus left
in the rail on the bridge; that the libellant was not guilty of
negligence; and that he was injured by the fall and incapacitated from
labor. He claimed $3000 damages.

The answer alleged negligence on the part of the libellant and an
absence of negligence on the part of the claimant.

The District Court, held by Judge Brown, entered a decree in favor of
the libellant for $150 damages, and $32.33 as one-half of the
libellant’s costs, less $47.06 as one-half of the claimant’s costs,
making the total award to the libellant $135.27. The opinion of the
District Judge is reported in 24 Fed. Rep. 860. It appeared from that
that the judge charged to the libellant’s own fault all his pain and
suffering and all mere consequential damages, and charged the vessel
with his wages, at $2 per day, for seventy-five working days, making
$150.

The claimant appealed to the Circuit Court, on the ground that the libel
should have been dismissed. It was stipulated between the parties that
the facts as stated in the opinion of the District Judge should be taken
as the facts proved in the case, and that the appeal should be heard on
those facts. Judge Wallace, who heard the case on appeal in the Circuit
Court, delivered an opinion, in August, 1886, which is reported in 28
Fed. Rep. 881, affirming the decree of the District Court. No decree was
made on that decision, but the case came up again in the Circuit Court
on the 14th of March, 1887, the Court being held by Mr. Justice
Blatchford and Judge Wallace, when a certificate was signed by them
stating as follows: “The libellant was a longshoreman, a resident of the
city and county of New York, and was, at the time when the said accident
occurred, employed as longshoreman, by the hour, by the stevedore having
the contract to load coal on board the steamship Max Morris. The
injuries to the libellant were occasioned by his falling through an
unguarded opening in the rail on the after-end of the lower bridge. The
Max Morris was a British steamship, hailing from Liverpool, England. The
defendant contends, as a matter of defence to said libel, that the
injuries complained of by libellant were caused by his own negligence.
The libellant contends that the injuries were occasioned entirely
through the fault of the vessel and her officers. The Court finds, as a
matter of fact, that the injuries to the libellant were occasioned
partly through his own negligence and partly through the negligence of
the officers of the vessel. It now occurs, as a question of law, whether
the libellant, under the above facts, is entitled to a decree for
divided damages. On this question the opinions of the judges are in
conflict.” On motion of the claimant, the question in difference was
certified to this Court, and a decree was entered by the Circuit Court
affirming the decree of the District Court and awarding to the libellant
a recovery of $135.27, with interest from the date of the decree of the
District Court, and $26.30 as the libellant’s costs in the Circuit
Court, making a total of $172. From that decree the claimant has
appealed to this Court. Rev. Stat. §§ 652, 693; Dow _v._ Johnson, 100 U.
S. 158.

MR. JUSTICE BLATCHFORD, after stating the case as above reported,
delivered the opinion of the Court.

The question discussed in the opinions of Judge Brown and Judge Wallace,
and presented to us for decision, is whether the libellant was debarred
from the recovery of any sum of money, by reason of the fact that his
own negligence contributed to the accident, although there was
negligence also in the officers of the vessel. The question presented by
the certificate is really that question, although stated in the
certificate to be whether the libellant, under the facts presented, was
entitled to a decree “for divided damages.” It appears from the opinion
of the District Judge that he imposed upon the claimant “some part of
the damage” which his concurrent negligence occasioned, while it does
not appear from the record that the award of the $150 was the result of
an equal division of the damages suffered by the libellant, or a giving
to him of exactly one-half, or of more or less than one-half, of such
damages.

The particular question before us has never been authoritatively passed
upon by this Court, and is, as stated by the District Judge in his
opinion, whether, in a Court of admiralty, in a case like the present,
where personal injuries to the libellant arose from his negligence
concurring with that of the vessel, any damages can be awarded, or
whether the libel must be dismissed, according to the rule in common-law
cases.

The doctrine of an equal division of damages in admiralty, in the case
of a collision between two vessels, where both are guilty of fault
contributing to the collision, had long been the rule in England, but
was first established by this Court in the case of The Schooner
Catherine _v._ Dickinson, 17 How. 170, and has been applied by it to
cases where, both vessels being in fault, only one of them was injured,
as well as to cases where both were injured, the injured vessel, in the
first case, recovering only one-half of its damages, and, in the second
case, the damages suffered by the two vessels being added together and
equally divided, and the vessel whose damages exceeded such one-half
recovering the excess against the other vessel. In the case of The
Schooner Catherine _v._ Dickinson, _supra_, both vessels being held in
fault for the collision, it was said by the Court, speaking by Mr.
Justice Nelson, p. 177, that the well-settled rule in the English
admiralty was “to divide the loss,” and that “under the circumstances
usually attending these disasters” the Court thought “the rule dividing
the loss the most just and equitable, and as best tending to induce care
and vigilance on both sides, in the navigation.”

[In Atlee _v._ Packet Co., 21 Wallace, 389, p. 395, MILLER, J., said:]
“But the plaintiff has elected to bring his suit in an admiralty Court,
which has jurisdiction of the case, notwithstanding the concurrent right
to sue at law. In this Court the course of proceeding is in many
respects different and the rules of decision are different. The mode of
pleading is different, the proceeding more summary and informal, and
neither party has a right to trial by jury. An important difference as
regards this case is the rule for estimating the damages. In the
common-law Court the defendant must pay all the damages or none. If
there has been on the part of the plaintiffs such carelessness or want
of skill as the common law would esteem to be contributory negligence,
they can recover nothing. By the rule of the admiralty Court, where
there has been such contributory negligence, or, in other words, when
both have been in fault, the entire damages resulting from the collision
must be equally divided between the parties. This rule of the admiralty
commends itself quite as favorably in its influence in securing
practical justice as the other; and the plaintiff who has the selection
of the forum in which he will litigate cannot complain of the rule of
that forum.” This Court, therefore, treated the case as if it had been
one of a collision between two vessels.

Some of the cases referred to show that this Court has extended the rule
of the division of damages to claims other than those for damages to the
vessels which were in fault in a collision.

                  *       *       *       *       *

The rule of the equal apportionment of the loss where both parties were
in fault would seem to have been founded upon the difficulty of
determining, in such cases, the degree of negligence in the one and the
other. It is said by Cleirac (_Us et Coutumes de la Mer_, p. 68) that
such rule of division is a rustic sort of determination, and such as
arbiters and amicable compromisers of disputes commonly follow, where
they cannot discover the motives of the parties, or when they see faults
on both sides.

As to the particular question now presented for decision, there has been
a conflict of opinion in the lower Courts of the United States.

                  *       *       *       *       *

All these were cases in admiralty, and were not cases of collision
between two vessels. They show an amelioration of the common-law rule,
and an extension of the admiralty rule in a direction which we think is
manifestly just and proper. Contributory negligence, in a case like the
present, should not wholly bar recovery. There would have been no injury
to the libellant but for the fault of the vessel; and while, on the one
hand, the Court ought not to give him full compensation for his injury,
where he himself was partly in fault, it ought not, on the other hand,
to be restrained from saying that the fact of his negligence should not
deprive him of all recovery of damages. As stated by the District Judge
in his opinion in the present case, the more equal distribution of
justice, the dictates of humanity, the safety of life and limb and the
public good, will be best promoted by holding vessels liable to bear
some part of the actual pecuniary loss sustained by the libellant, in a
case like the present, where their fault is clear, provided the
libellant’s fault, though evident, is neither wilful, nor gross, nor
inexcusable, and where the other circumstances present a strong case for
his relief. We think this rule is applicable to all like cases of marine
tort founded upon negligence and prosecuted in admiralty, as in harmony
with the rule for the division of damages in cases of collision. The
mere fact of the negligence of the libellant as partly occasioning the
injuries to him, when they also occurred partly through the negligence
of the officers of the vessel, does not debar him entirely from a
recovery.

The necessary conclusion is, that the question whether the libellant,
upon the facts found, is entitled to a decree for divided damages, must
be answered in the affirmative, in accordance with the judgment below.
This being the only question certified, and the amount in dispute being
insufficient to give this Court jurisdiction of the whole case, our
jurisdiction is limited to reviewing this question. Chicago Union Bank
_v._ Kansas City Bank, 136 U. S. 223. Whether, in a case like this, the
decree should be for exactly one-half of the damages sustained, or
might, in the discretion of the Court, be for a greater or less
proportion of such damages, is a question not presented for our
determination upon this record, and we express no opinion upon it.

                                                 _Decree affirmed._[187]

  SCOTT, COLLISIONS AT SEA WHERE BOTH SHIPS ARE IN FAULT, 13 Law
  Quarterly Review, 17.

  If minor or collateral differences be disregarded, there are amongst
  civilized nations four different ways of dealing with collision damage
  where both ships are in fault.

  1. To mass the total damage and divide it equally between the two
  ships.[188]

  This is the British rule, and has been the American rule....

  2. To leave the loss where it falls.

  This is the rule in Germany, Holland, Italy, Spain, and those of the
  South American States which have derived their law from Spain, and was
  the rule in Great Britain in our Courts of Common Law previous to the
  Judicature Act, 1873.

  3. To divide the loss proportionally to the value of the vessels in
  collision.

  A kind of general average principle obtaining in Turkey and Egypt.

  4. To divide the loss proportionally to the faults of the two vessels.

  This is the rule of France, Belgium, Norway, Sweden, Denmark,
  Portugal, Greece, and Roumania.

  See Franck, Collisions at Sea in Relation to International Maritime
  Law, 12 Law Quarterly Review, 260.

  ENGLAND, MARITIME CONVENTIONS ACT (1911), § 1.

  1. (1) Where, by the fault of two or more vessels, damage or loss is
  caused to one or more of those vessels, to their cargoes or freight,
  or to any property on board, the liability to make good the damage or
  loss shall be in proportion to the degree in which each vessel was in
  fault:

    Provided that—

      (a) if, having regard to all the circumstances of the case, it is
  not possible to establish different degrees of fault, the liability
  shall be apportioned equally; and

      (b) nothing in this section shall operate so as to render any
  vessel liable for any loss or damage to which her fault has not
  contributed.


                       BUTTERFIELD _v._ FORRESTER
                  IN THE KING’S BENCH, APRIL 22, 1809.
                       _Reported in 11 East, 60._

This was an action on the case for obstructing a highway, by means of
which obstruction the plaintiff, who was riding along the road, was
thrown down with his horse, and injured, &c. At the trial before Bayley,
J., at Derby, it appeared that the defendant, for the purpose of making
some repairs to his house, which was close by the roadside at one end of
the town, had put up a pole across this part of the road, a free passage
being left by another branch or street in the same direction. That the
plaintiff left a public house not far distant from the place in question
at 8 o’clock in the evening in August, when they were just beginning to
light candles, but while there was light enough left to discern the
obstruction at one hundred yards distance; and the witness who proved
this, said that if the plaintiff had not been riding very hard he might
have observed and avoided it; the plaintiff, however, who was riding
violently, did not observe it, but rode against it, and fell with his
horse and was much hurt in consequence of the accident; and there was no
evidence of his being intoxicated at the time. On this evidence Bayley,
J., directed the jury, that if a person riding with reasonable and
ordinary care could have seen and avoided the obstruction; and if they
were satisfied that the plaintiff was riding along the street extremely
hard, and without ordinary care, they should find a verdict for the
defendant, which they accordingly did.

_Vaughan_, Serjt., now objected to this direction, on moving for a new
trial; and referred to Buller’s Ni. Pri. 26,[189] where the rule is laid
down, that “if a man lay logs of wood across a highway, though a person
may with care ride safely by, yet if by means thereof my horse stumble
and fling me, I may bring an action.”

BAYLEY, J. The plaintiff was proved to be riding as fast as his horse
could go, and this was through the streets of Derby. If he had used
ordinary care he must have seen the obstruction; so that the accident
appeared to happen entirely from his own fault.

LORD ELLENBOROUGH, C. J. A party is not to cast himself upon an
obstruction which had been made by the fault of another, and avail
himself of it, if he do not himself use common and ordinary caution to
be in the right. In cases of persons riding upon what is considered to
be the wrong side of the road, that would not authorize another
purposely to ride up against them. One person being in fault will not
dispense with another’s using ordinary care for himself. Two things must
concur to support this action: an obstruction in the road by the fault
of the defendant, and no want of ordinary care to avoid it on the part
of the plaintiff.

                                                         _Rule refused._


                            DAVIES _v._ MANN
                  IN THE EXCHEQUER, NOVEMBER 4, 1842.
                 _Reported in 10 Meeson & Welsby, 546._

Case for negligence. The declaration stated, that the plaintiff
theretofore, and at the time of the committing of the grievance
thereinafter mentioned, to wit, on, &c., was lawfully possessed of a
certain donkey, which said donkey of the plaintiff was then lawfully in
a certain highway, and the defendant was then possessed of a certain
wagon and of certain horses drawing the same, which said wagon and
horses of the defendant were then under the care, government, and
direction of a certain then servant of the defendant, in and along the
said highway; nevertheless the defendant, by his said servant, so
carelessly, negligently, unskilfully, and improperly governed and
directed his said wagon and horses, that by and through the
carelessness, negligence, unskilfulness, and improper conduct of the
defendant, by his said servant, the said wagon and horses of the
defendant then ran and struck with great violence against the said
donkey of the plaintiff, and thereby then wounded, crushed, and killed
the same, &c.

The defendant pleaded not guilty.

At the trial, before Erskine, J., at the last Summer Assizes for the
county of Worcester, it appeared that the plaintiff, having fettered the
fore-feet of an ass belonging to him, turned it into a public highway,
and at the time in question the ass was grazing on the off side of a
road about eight yards wide, when the defendant’s wagon, with a team of
three horses, coming down a slight descent, at what the witness termed a
smartish pace, ran against the ass, knocked it down, and the wheels
passing over it, it died soon after. The ass was fettered at the time,
and it was proved that the driver of the wagon was some little distance
behind the horses. The learned judge told the jury, that though the act
of the plaintiff, in leaving the donkey on the highway so fettered as to
prevent his getting out of the way of carriages travelling along it,
might be illegal, still, if the proximate cause of the injury was
attributable to the want of proper conduct on the part of the driver of
the wagon, the action was maintainable against the defendant; and his
Lordship directed them, if they thought that the accident might have
been avoided by the exercise of ordinary care on the part of the driver,
to find for the plaintiff. The jury found their verdict for the
plaintiff, damages 40_s._

_Godson_ now moved for a new trial, on the ground of misdirection. The
act of the plaintiff in turning the donkey into the public highway was
an illegal one, and, as the injury arose principally from that act, the
plaintiff was not entitled to compensation for that injury which, but
for his own unlawful act, would never have occurred. [PARKE, B. The
declaration states that the ass was lawfully on the highway, and the
defendant has not traversed that allegation; therefore it must be taken
to be admitted.] The principle of law, as deducible from the cases is,
that where an accident is the result of faults on both sides, neither
party can maintain an action. Thus, in Butterfield _v._ Forrester, 11
East, 60, it was held that one who is injured by an obstruction on a
highway, against which he fell, cannot maintain an action, if it appear
that he was riding with great violence and want of ordinary care,
without which he might have seen and avoided the obstruction. So, in
Vennall _v._ Garner, 1 C. & M. 21, in case for running down a ship, it
was held, that neither party can recover when both are in the wrong; and
Bayley, B., there says, “I quite agree that if the mischief be the
result of the combined negligence of the two, they must both remain in
_statu quo_, and neither party can recover against the other.” Here the
plaintiff, by fettering the donkey, had prevented him from removing
himself out of the way of accident; had his fore-feet been free no
accident would probably have happened. Pluckwell _v._ Wilson, 5 Car. &
P. 375; Luxford _v._ Large, Ibid. 421, and Lynch _v._ Nurdin, 1 Ad. & E.
(N. S.) 29[190]; 4 P. & D. 672, are to the same effect.

LORD ABINGER, C. B. I am of opinion that there ought to be no rule in
this case. The defendant has not denied that the ass was lawfully in the
highway, and therefore we must assume it to have been lawfully there;
but even were it otherwise, it would have made no difference, for as the
defendant might, by proper care, have avoided injuring the animal, and
did not, he is liable for the consequences of his negligence, though the
animal may have been improperly there.

PARKE, B. This subject was fully considered by this Court in the case of
Bridge _v._ The Grand Junction Railway Company, 3 M. & W. 246, where, as
appears to me, the correct rule is laid down concerning negligence,
namely, that the negligence which is to preclude a plaintiff from
recovering in an action of this nature, must be such as that he could,
by ordinary care, have avoided the consequences of the defendant’s
negligence. I am reported to have said in that case, and I believe quite
correctly, that “the rule of law is laid down with perfect correctness
in the case of Butterfield _v._ Forrester, that, although there may have
been negligence on the part of the plaintiff, yet unless he might, by
the exercise of ordinary care, have avoided the consequences of the
defendant’s negligence, he is entitled to recover; if by ordinary care
he might have avoided them, he is the author of his own wrong.” In that
case of Bridge _v._ Grand Junction Railway Company, there was a plea
imputing negligence on both sides; here it is otherwise; and the judge
simply told the jury, that the mere fact of negligence on the part of
the plaintiff in leaving his donkey on the public highway, was no answer
to the action, unless the donkey’s being there was the immediate cause
of the injury; and that, if they were of opinion that it was caused by
the fault of the defendant’s servant in driving too fast or, which is
the same thing, at a smartish pace, the mere fact of putting the ass
upon the road would not bar the plaintiff of his action. All that is
perfectly correct; for, although the ass may have been wrongfully there,
still the defendant was bound to go along the road at such a pace as
would be likely to prevent mischief. Were this not so, a man might
justify the driving over goods left on a public highway, or even over a
man lying asleep there, or the purposely running against a carriage
going on the wrong side of the road.

GURNEY, B., and ROLFE, B., concurred.

                                                    _Rule refused._[191]


              NORTHERN PACIFIC RAILWAY COMPANY _v._ JONES
UNITED STATES CIRCUIT COURT OF APPEALS, NINTH CIRCUIT, FEBRUARY 5, 1906.
                _Reported in 144 Federal Reporter, 47._

  GILBERT, J.[192] ... The defendant in error was a miner of the age of
  34 years, and was in the full possession of his senses. According to
  his own testimony, he walked upon the railroad track a distance of
  more than half a mile without once looking back or stopping to listen
  for an approaching train. In so doing, it must be held that he was
  guilty of gross negligence, which, irrespective of negligence in the
  failure of the engineer to discover him on the track, is sufficient to
  bar his right of recovery. It was no excuse for his failure to take
  such precautions that the wind was blowing in his face, or that the
  noise of a waterfall may have deadened the sound of an approaching
  train. Those circumstances only rendered the use of his senses the
  more imperative. It was his duty continually to exercise vigilance.

                  *       *       *       *       *

  On the authority of Inland & Seaboard Coasting Co. _v._ Tolson, 139 U.
  S. 551–558, 11 Sup. Ct. 653, 35 L. Ed. 270; Grand Trunk Ry. Co. _v._
  Ives, 144 U. S. 408–429, 12 Sup. Ct. 679, 36 L. Ed. 485; and Bogan
  _v._ Carolina Central Ry. Co., 129 N. C. 154, 39 S. E. 808, 55 L. R.
  A. 418, the defendant in error invokes the doctrine that the
  contributory negligence of the party injured will not defeat the
  action, if it be shown that the defendant might, by the exercise of
  reasonable care and prudence, have avoided the consequences of the
  injured party’s negligence. In the first of these decisions, the
  doctrine was applied in a case where the plaintiff, a wharfinger, was
  standing with his foot between the timbers of a wharf, to deliver
  freight to a vessel which was about to make a landing there, and which
  struck the wharf with such force as to crush his foot. But the court
  held that the doctrine was applicable, for the reason that the jury
  might well have been of opinion that, while there was some negligence
  on the plaintiff’s part in standing where and as he did, yet the
  officers of the boat knew just where and how he stood, and might have
  avoided injuring him, if they had used reasonable care to prevent the
  steamboat from striking the wharf with unusual and unnecessary
  violence. In the Ives Case, the plaintiff’s intestate was killed while
  attempting to cross a railroad track. There was evidence of negligence
  on the part of the railroad company. On the part of the plaintiff’s
  intestate there was no evidence as to what precaution he took before
  placing himself in the place of danger, except that, at a distance of
  about seventy-six feet from the track, he stopped several minutes,
  presumably to listen for trains; that while there a train passed; and
  that, soon after it had passed, and while the noise caused by it was
  still quite distinct, he proceeded across the track and was struck by
  another train. The court held that the question of contributory
  negligence of the plaintiff’s intestate was properly left to the jury,
  as one to be determined under all the circumstances of the case, but
  incidentally proceeded to affirm the rule above quoted, citing Davies
  _v._ Mann, 10 M. & W. 546; Inland & Seaboard Coasting Co. _v._ Tolson,
  and other cases. There was no evidence in the Ives Case that the
  plaintiff’s intestate was seen by those who were managing the train in
  time to have avoided the accident. The court, in that case, however,
  reaffirmed the rule that a traveller, on going upon a railroad track,
  ought to make vigilant use of his senses of sight and hearing, and
  listen for signals, and look in the different directions from which a
  train might come, and said:—

  “If by neglect of this duty he suffers injury from a passing train, he
  cannot recover of the company, although it may itself be chargeable
  with negligence, or have failed to give the signals required by
  statute, or be running at the time at a speed exceeding the legal
  rate.”

  It cannot be contended that in the Ives Case the Supreme Court
  intended to lay down the broad rule that no contributory negligence of
  the party injured will defeat his right to recover, if it be shown
  that the defendant might, by the exercise of reasonable care and
  prudence, have avoided the consequences of that negligence. To so hold
  would be to destroy the whole doctrine of contributory negligence. As
  applied to the present case, it would mean that the plaintiff in error
  was bound to know that the defendant in error was upon its track, and
  that he would not step aside in time to avoid the train. Such is not
  the doctrine of cases such as Northern Pacific Railroad _v._
  Freeman[193] and the other decisions which we have cited above. The
  doctrine of “the last clear chance,” so invoked by the defendant in
  error, originated in Davies _v._ Mann, in which it was held that the
  plaintiff’s want of ordinary care in that case did not constitute
  contributory negligence, because it was a remote cause or mere
  condition of the injury, and did not proximately contribute to it, and
  because the negligence of the defendant arose subsequently to that of
  the plaintiff, and the latter’s negligence was so obvious as to have
  been discoverable by the exercise of ordinary care. That doctrine has
  no application to a case where the plaintiff voluntarily places
  himself in a place of danger from which he has present means of
  escape, and continues there without exercising precautions which an
  ordinarily prudent man would exercise. We have nothing here to do with
  the law applicable to a case where the injured person is found in a
  place of danger, as upon a railroad trestle, from which he is
  powerless to extricate himself on the approach of a train, and where
  his situation is discovered, or ought to have been discovered, by
  those in charge of the train.

                  *       *       *       *       *


        JONES _v._ CHARLESTON & WESTERN CAROLINA RAILWAY COMPANY
            SUPREME COURT, SOUTH CAROLINA, APRIL TERM, 1901.
             _Reported in 61 South Carolina Reports, 556._

  Action under statute by administrator of Susan V. Jones to recover for
  her death. Mrs. Jones was killed by a train backing down upon her
  while she was walking on the railroad track. Plaintiff’s evidence
  tended to show that the track at that place had been accustomed to be
  used by the public as a walkway with the knowledge and acquiescence of
  the defendant company. Mrs. Jones, when killed, was on a trestle. The
  train was backing down behind her, at a speed of from five to ten
  miles an hour. There was evidence on plaintiff’s part that no bell was
  rung, no whistle blown, no warning given of the approach of the train;
  also that there was no lookout on the train, and no rear-end lights.

  Defendant requested the following instruction (No. 6):—

  “Even if the defendant was guilty of negligence in the backing of its
  train, and such negligence was a proximate cause of the injury, if the
  jury also believe that the said Susan V. Jones showed a want of
  ordinary care in walking down the track that night, under all the
  circumstances, and such carelessness was a proximate cause of the
  injury, she was guilty of contributory negligence, and the plaintiff
  would not be entitled to recover.”

  The judge qualified this instruction by adding:—

  “If the deceased, Mrs. Jones, was guilty of negligence in acting as
  you may find from the testimony that she acted, and if her conduct,
  her negligence, together with the negligence of the railroad company,
  contributed to her injury as the proximate cause, then the railroad
  company would not be responsible, unless the railroad company could
  have avoided injuring her notwithstanding her negligence.”

  The judge charged the jury, in accordance with plaintiff’s ninth
  request, as follows:—

  “Contributory negligence is a matter of defence, and must be proved by
  defendant by a preponderance of the evidence; but unless the
  contributory negligence was the proximate cause of the accident, and
  if in spite of such contributory negligence the accident could have
  been avoided by the use of ordinary care on the part of the defendant,
  then plaintiff is still entitled to recover.”

  Verdict for plaintiff and judgment thereon. Defendant appealed.[194]

  JONES, J.... The testimony being undisputed that Mrs. Jones,
  plaintiff’s intestate, was walking down the railroad track at the time
  of the injury, the defendant was entitled to have the sixth request to
  charge above mentioned in the tenth exception submitted to the jury as
  entirely correct. The remarks by the court down to the clause, “unless
  the railroad company could have avoided injuring her notwithstanding
  her negligence,” were not improper nor inconsistent with the request,
  but the addition of such qualification was erroneous and wholly
  inconsistent with the well-settled principles governing contributory
  negligence. The same error was made in the charge excepted to in the
  eleventh exception above, when the court instructed the jury, “but
  unless the contributory negligence was the proximate cause of the
  accident, and if in spite of _such_ contributory negligence (that is,
  negligence which contributed as a proximate cause), the accident could
  have been avoided by the use of ordinary care on the part of the
  defendant, then the plaintiff is still entitled to recover.” The
  charge destroyed the defence of contributory negligence. In _every_
  case where there is contributory negligence the defendant could have
  avoided the injury by ordinary care, for the simple reason that there
  can be no such thing as contributory negligence unless the defendant
  be negligent. The error complained of is the same error which was
  condemned in Cooper _v._ Ry. Co., 56 S. C. 94. The law in this state
  is settled that contributory negligence as defined in Cooper’s case,
  _supra_, to _any_ extent, will _always_ defeat plaintiff’s recovery,
  unless the injury is wantonly or wilfully inflicted; for the law
  cannot measure how much of the injury is due to the plaintiff’s own
  fault, and will not recompense one for injury resulting to himself
  from his own misconduct. The objection to the charge is that it
  instructed the jury that although plaintiff’s negligence contributed
  to her injury as a proximate cause, she could recover if the defendant
  by ordinary care could have avoided the injury. Is it not manifest
  that such a rule would abolish contributory negligence as a defence?
  The qualifying terms, “unless the railroad company could have avoided
  injuring her notwithstanding her negligence,” would necessarily
  mislead a jury; for they would at once say the railroad company could
  have avoided the injury by not being negligent in the manner alleged
  in the complaint, by having suitable rear end lights, by a reasonable
  lookout, by loud warning of the train’s approach, by running at such
  slow speed as to enable any one warned to get off the track; and then
  utterly ignore the defendant’s plea and evidence of contributory
  negligence, because of the instruction that plaintiff, notwithstanding
  her negligence which proximately caused her injury, could still
  recover, if the defendant could have avoided the injury. The jury
  ought to have been instructed without qualification, that if plaintiff
  was negligent and that negligence contributed as a proximate cause to
  her injury, she could not recover, unless the injury was wantonly or
  wilfully inflicted.

  The judgment of the Circuit Court is reversed, and the case remanded
  for a new trial.


               CORDINER _v._ LOS ANGELES TRACTION COMPANY
DISTRICT COURT OF APPEALS, SECOND DISTRICT, CALIFORNIA, APRIL 16, 1907.
          _Reported in 4 California Appellate Decisions, 480._

  SHAW, J. Neither of the defendants questioned the right of plaintiff
  to recover such damages as she had sustained in the collision, but
  each contended that the other should be held responsible therefor; and
  with the view of having the jury pass upon the question, the Los
  Angeles Railway Company asked the court to instruct the jury, in
  effect, that notwithstanding the negligence of its motorman in driving
  his car upon the crossing, still if the traction motorman could, after
  he saw that it was beyond the power of the motorman of the Los Angeles
  Railway car to avoid the accident, have, by proper care, prevented the
  collision, then the negligence of the defendant Los Angeles Traction
  Company was the proximate cause of the injury. In other words, while
  admitting that plaintiff’s injury resulted from the collision due to
  the joint or concurrent acts of negligence of defendants, she must be
  confined in her recovery for such damages to a judgment rendered
  against the defendant who had the “last clear chance” to avoid the
  collision and neglected to act upon it. Appellant seeks to apply the
  well-established principle that “he who last has a clear opportunity
  of avoiding the accident, by the exercise of proper care to avoid
  injuring another, must do so.” Esrey _v._ S. Pacific Co., 103 Cal.
  541. This rule is only applicable to cases where the defence is based
  upon the contributory negligence of plaintiff due to his want of care
  in placing himself in a position of danger, and where he may,
  notwithstanding his negligence, recover from a defendant, who by the
  exercise of proper care could have avoided the injury. We are unable
  to perceive why this rule should apply to plaintiff, who was in no way
  chargeable, by imputation or otherwise, with negligence; nor are we
  referred to any authority which supports the proposition. Indeed, all
  the authorities recognize the right of recovery against either or both
  of the defendants whose concurring acts of negligence united in
  producing the injury. 1 Shearman & Redfield on Neg. p. 122; 1 Thompson
  on Neg. p. 75; Doeg _v._ Cook, 126 Cal. 213; Tompkins _v._ Clay St.
  Ry. Co., 66 Cal. 163; Pastene _v._ Adams, 49 Cal. 87.[195]


                           STILES _v._ GEESEY
               SUPREME COURT, PENNSYLVANIA, MAY 30, 1872.
           _Reported in 71 Pennsylvania State Reports, 439._

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of York County.

Action on the case by Jacob B. Geesey against Thomas Stiles, for alleged
injury by the negligence of William Stiles, son of defendant, by which
plaintiff’s horse and carriage were damaged.[196]

Plaintiff’s wife, driving in a light carriage of plaintiff’s, hitched
her horse to a tree on the road, and went into a friend’s house. The
carriage projected into the travelled part of the road. Whilst the
carriage was so left, the defendant’s son, William Stiles, was driving
his father’s team with a loaded wagon along the road. He got off to do
something to his wagon; and seeing an acquaintance in a neighboring
barn, stopped a moment to exchange a few words with him, the team moving
on slowly at the time with the load up the hill, keeping the travelled
track of the road till the front horse was just behind plaintiff’s
carriage standing unattended where it was left. At this point of time
William Stiles was behind his own wagon, at some distance from it; and
did not see the obstruction in the road in time to avoid a collision.
The wagon collided with the carriage. Stiles halloed “Whoa,” and his
horses stopped. In the collision, the plaintiff’s horse was fatally
injured.

The third point of the plaintiff, which was affirmed in the charge to
the jury by Fisher, P. J., is as follows:—

“That Thomas Stiles cannot excuse the negligence of William Stiles by
showing that the plaintiff’s property was placed where it received the
injury by want of ordinary care by Mrs. Geesey, if, in the opinion of
the jury such want is imputable to her, should the jury believe that
William Stiles was chargeable with negligence in leaving his team and
permitting it to go along the highway unattended.”

                                                _Verdict for plaintiff._

READ, J. [After stating the facts.] We have taken in brief, the
defendant’s statement of his defence, which fairly raises the question
of contributory negligence. “It is an incontestable principle that where
the injury complained of is the product of mutual or concurring
negligence, no action for damages will lie. The parties being mutually
in fault there can be no apportionment of the damages. The law has no
scales to determine in such cases whose wrong-doing weighed most in the
compound that occasioned the mischief:” per Woodward, J., 12 Harris,
469.

“The question presented to the Court or the jury is never one of
comparative negligence, as between the parties; nor does very great
negligence on the part of a defendant so operate to strike a balance of
negligence as to give a judgment to a plaintiff whose own negligence
contributes in any degree to the injury.” Wilds _v._ Hudson River
Railroad Co., 24 N. Y. 432.

The third error assigned is that the Court erred in their charge to the
jury on the plaintiff’s third point, which was as follows: “That Thomas
Stiles cannot excuse the negligence of William Stiles by showing that
the plaintiff’s property was placed where it received the injury, by
want of ordinary care by Mrs. Geesey, if in the opinion of the jury such
want is imputable to her, should the jury believe William Stiles was
chargeable with negligence, in leaving his team and permitting it to go
along the highway unattended,” which point the Court affirmed, holding
that although there was contributory negligence on the part of the
plaintiff, he was entitled to recover from the defendant on account of
his negligence. This was a binding instruction upon the jury, leaving
nothing for them to inquire into practically, except the negligence of
the defendant. In this the Court committed a clear error, and the
judgment must be reversed, and _venire de novo_ awarded.


          RADLEY _v._ LONDON AND NORTH WESTERN RAILWAY COMPANY
                IN THE HOUSE OF LORDS, DECEMBER 1, 1876.
            _Reported in Law Reports, 1 Appeal Cases, 754._

This was an appeal against a decision of the Court of Exchequer Chamber.

The appellants were the plaintiffs in an action brought in the Court of
Exchequer, in which they claimed to recover damages for the destruction
of a bridge occasioned, as they alleged, by the negligence of the
defendants’ servants. The plaintiffs were owners of the Sankey Brook
Colliery, in the county of Lancaster, which was situated near a branch
line of the defendants’ railway. There was a siding belonging to the
plaintiffs, which communicated with the railway, and the defendants’
servants were in the habit of taking trucks loaded with coals from this
siding, in order to run them on the railway to forward them to their
destination, and also of bringing back empty trucks and running them
from the railway on to the siding. On Saturday after working hours, when
all the colliery men had gone away, the defendants’ servants ran some of
the plaintiffs’ empty trucks from the railway upon the siding and there
left them. In that position they remained. One of the watchmen employed
by the plaintiffs knew that they were there, but nothing was done to
remove them to a different place. In the first of these trucks had been
placed a truck which had broken down, and the height of the two trucks
combined was nearly eleven feet. There was, in advance of the spot where
the trucks had been left, a bridge placed over a part of the siding, the
span of which bridge was about eight feet from the ground. On Sunday
afternoon the defendants’ servants brought a long line of empty trucks
belonging to the plaintiffs, and ran them on the line of the siding,
pushing on the first set of trucks in front. Some resistance was
perceived, and the pushing force of the engine employed was increased,
and the result was, as the two trucks at the head of the line could not
pass under the bridge, they struck with great force against it and broke
it down.[197] For the damage thereby occasioned this action was brought.
The defence was contributory negligence; it being insisted that the
plaintiffs ought to have moved the first set of trucks to a safe place,
or at all events, not to have left the truck with the disabled truck in
it so as to be likely to occasion mischief. At the trial before Mr.
Justice Brett, at the Summer Assizes at Liverpool, in 1873, the learned
judge told the jury that “you must be satisfied that the plaintiffs’
servants did not do anything which persons of ordinary care, under the
circumstances, would not do, or that they omitted to do something which
persons of ordinary care would do.... It is for you to say entirely as
to both points; but the law is this, the plaintiffs must have satisfied
you that this happened by the negligence of the defendants’ servants,
and without any contributory negligence of their own, in other words
that it was solely by the negligence of the defendants’ servants. If you
think it was, then your verdict will be for the plaintiffs. If you think
it was not solely by the negligence of the defendants’ servants, your
verdict must be for the defendants.”[198] The jurors having, on this
direction, stated that they thought there was contributory negligence on
the part of the plaintiffs, the learned judge directed that the verdict
should be entered for the defendants, but reserved leave for the
plaintiffs to move.

A rule having been obtained for a new trial, it was after argument
before Barons Bramwell and Amphlett made absolute.[199] On appeal to the
Exchequer Chamber the decision was, by Justices Blackburn, Mellor, Lush,
Brett, and Archibald (_diss._ Justice Denman), reversed.[200] This
appeal was then brought.[201]

LORD PENZANCE. My Lords, the action out of which this appeal arises is
an action charging the defendants with negligence (through their
servants) in so managing the shunting of some empty coal-wagons as to
knock down a bridge and some staging and some colliery head-gearing,
which stood upon it, and belonged to the plaintiffs.

The first question on the appeal is, whether the Court of Exchequer
Chamber was right in holding that there was any evidence, proper to be
submitted to the jury, tending to the conclusion that the plaintiffs
themselves had been guilty of some negligence in the matter, and that
such negligence had contributed to produce the accident and injury of
which they complained.

The general facts of the case, the particular facts which gave rise to
the imputation of negligence, and the contention of both sides as to the
fair result of these facts, are stated in the judgment of the Court of
Exchequer delivered by Baron Bramwell. His Lordship here read the
statement from Mr. Baron Bramwell’s judgment.[202]

It may be admitted that this is a fair and full statement of the
arguments and considerations on the one side, and on the other, upon
which the question of the plaintiffs’ negligence had to be decided. But
it had to be decided by the jurors, and not by the Court, and I am
unable to perceive any reason why the learned judge did wrong in
submitting these arguments and considerations to their decision
accordingly. The bare statement of them is enough to show that there
were in the case facts and circumstances sufficient at least to raise
the question of negligence, whether they were a sufficient proof of
negligence or not.

The decision, therefore, of the Exchequer Chamber upon this matter
ought, I think, to be upheld.

The remaining question is whether the learned judge properly directed
the jury in point of law. The law in these cases of negligence is, as
was said in the Court of Exchequer Chamber, perfectly well settled and
beyond dispute.

The first proposition is a general one, to this effect, that the
plaintiff in an action for negligence cannot succeed if it is found by
the jury that he has himself been guilty of any negligence or want of
ordinary care which contributed to cause the accident.

But there is another proposition equally well established, and it is a
qualification upon the first, namely, that though the plaintiff may have
been guilty of negligence, and although that negligence may, in fact,
have contributed to the accident, yet if the defendant could in the
result, by the exercise of ordinary care and diligence, have avoided the
mischief which happened, the plaintiffs’ negligence will not excuse him.

This proposition, as one of law, cannot be questioned. It was decided in
the case of Davies _v._ Mann, 10 M. & W. 546, supported in that of Tuff
_v._ Warman, 5 C. B. (N. S.) 573; 27 L. J. C. P. 322, and other cases,
and has been universally applied in cases of this character without
question.

The only point for consideration, therefore, is whether the learned
judge properly presented it to the mind of the jury.

It seems impossible to say that he did so. At the beginning of his
summing-up he laid down the following as the propositions of law which
governed the case: It is for the plaintiffs to satisfy you that this
accident happened through the negligence of the defendants’ servants,
and as between them and the defendants, that it was solely through the
negligence of the defendants’ servants. They must satisfy you that it
was solely by the negligence of the defendants’ servants, or, in other
words, that there was no negligence on the part of their servants
contributing to the accident; so that, if you think that both sides were
negligent, so as to contribute to the accident, then the plaintiffs
cannot recover.

This language is perfectly plain and perfectly unqualified, and in case
the jurors thought there was any contributory negligence on the part of
the plaintiffs’ servants, they could not, without disregarding the
direction of the learned judge, have found in the plaintiffs’ favor,
however negligent the defendants had been, or however easily they might
with ordinary care have avoided any accident at all.

The learned judge then went on to describe to the jury what it was that
might properly be considered to constitute negligence, first in the
conduct of the defendants, and then in the conduct of the plaintiffs;
and having done this, he again reverted to the governing propositions of
law, as follows: “There seem to be two views. It is for you to say
entirely as to both points. But the law is this, the plaintiff must have
satisfied you that this happened by the negligence of the defendants’
servants, and without any contributory negligence of their own; in other
words, that it was solely by the negligence of the defendants’ servants.
If you think it was, then your verdict will be for the plaintiffs. If
you think it was not solely by the negligence of the defendants’
servants, your verdict must be for the defendants.”

This, again, is entirely without qualification, and the undoubted
meaning of it is, that if there was any contributory negligence on the
part of the plaintiffs, they could in no case recover. Such a statement
of the law is contrary to the doctrine established in the case of Davies
_v._ Mann, 10 M. & W. 546, and the other cases above alluded to, and in
no part of the summing-up is that doctrine anywhere to be found. The
learned counsel were unable to point out any passage addressed to it.

It is true that in part of his summing-up the learned judge pointed
attention to the conduct of the engine-driver, in determining to force
his way by violence through the obstruction, as fit to be considered by
the jury on the question of negligence; but he failed to add that if
they thought the engine-driver might at this stage of the matter by
ordinary care have avoided all accident, any previous negligence of the
plaintiffs would not preclude them from recovering.

In point of fact the evidence was strong to show that this was the
immediate cause of the accident, and the jury might well think that
ordinal care and diligence on the part of the engine-driver would,
notwithstanding any previous negligence of the plaintiffs in leaving the
loaded-up truck on the line, have made the accident impossible. This
substantial defect of the learned judge’s charge is that that question
was never put to the jury.

On this point, therefore, I propose to move that your Lordships should
reverse the decision of the Exchequer Chamber, and direct a new trial.

THE LORD CHANCELLOR (Lord Cairns). My Lords, I have had the advantage of
considering the opinion which has just been expressed to your Lordships
in this case by my noble and learned friend, and, concurring as I do
with every word of it, I do not think it is necessary that I should do
more than say that I hope your Lordships will agree to the motion which
he has proposed.

LORD BLACKBURN. My Lords, I agree entirely with the noble Lord who has
first spoken as to what were the proper questions for the jury in this
case, and that they were not decided by the jury. I am inclined to think
that the learned judge did in part of his summing-up sufficiently ask
the proper questions, had they been answered, but unfortunately he
failed to have an answer from the jury to those questions, it appearing
by the case that the only finding was as to the plaintiffs’ negligence.

I agree, therefore, in the result that there should be a new trial.

LORD GORDON. My Lords, I entirely concur in the motion which has been
submitted to your Lordships by my noble and learned friend on the other
side of the House. The question is one which has given rise to some
difficulty in the courts of Scotland, but I think that it is very likely
that the opinion which has been expressed in this case will be regarded
as a very useful authority for guiding their decisions.[203]

_Judgment of the Court of Exchequer Chamber reversed._
_Judgment of the Court of Exchequer restored, and a new trial ordered,
   with costs._
                    _Lords’ Journals_, December 1, 1876.


     NASHUA IRON AND STEEL CO. _v._ WORCESTER & NASHUA RAILROAD CO.
               SUPREME COURT, NEW HAMPSHIRE, JUNE, 1882.
              _Reported in 62 New Hampshire Reports, 159._

Case. Demurrer to the declaration.

CARPENTER, J. The declaration alleges that by the defendants’ careless
management of their engine and cars, the plaintiffs’ horse was
frightened, and caused to run upon and injure Ursula Clapp, who was
without fault; that Clapp brought her action therefor against the
plaintiffs, and recovered judgment for damages, which they paid; that
the defendants had notice of, and were requested to defend, the suit.
The defendants demur. Inasmuch as Clapp could not have recovered against
the plaintiffs unless they were in fault (Brown _v._ Collins, 53 N. H.
442; Lyons _v._ Child, 61 N. H. 72), it must be taken that their
negligence co-operated with that of the defendants to produce the
injury. If the plaintiffs were not liable in that action because their
negligence was not, and the defendants’ negligence was, the cause of the
accident, the objection is not now open to the defendants. Littleton
_v._ Richardson, 34 N. H. 179. In relation to Clapp, both parties were
wrong-doers. She could pursue her remedy against either or both of them
at her election. Burrows _v._ March Gas Co., L. R. 5 Ex. 67, 71.

One of several wrong-doers, who has been compelled to pay the damages
caused by the wrong, has in general no remedy against the others. He
cannot make his own misconduct the ground of an action in his favor. To
this proposition there are, it has been said, so many exceptions, that
it can hardly, with propriety, be called a general rule. Bailey _v._
Bussing, 28 Conn. 455. Its application is restricted to cases where the
person seeking redress knew, or is presumed to have known, that the act
for which he has been mulcted in damages was unlawful. Jacobs _v._
Pollard, 10 Cush. 287, 289; Coventry _v._ Barton, 17 Johns. 142. In many
instances several parties may be liable in law to the person injured,
while as between themselves some of them are not wrong-doers at all; and
the equity of the guiltless to require the actual wrong-doer to respond
for all the damages, and the equally innocent to contribute his
proportion, is complete. Wooley _v._ Batte, 2 C. & P. 417; Pearson _v._
Skelton, 1 M. & W. 504; Betts _v._ Gibbins, 2 A. & E. 57; Adamson _v._
Jarvis, 4 Bing. 66; Avery _v._ Halsey, 14 Pick. 174; Gray _v._ Boston
Gas Light Co., 114 Mass. 149; Churchill _v._ Holt, 127 Mass. 165, and
131 Mass. 67; Bailey _v._ Bussing, _supra_; Smith _v._ Foran, 43 Conn.
244. These cases, instead of being exceptions to the rule, seem rather
not to fall within it. The right of recovery rests in the one case upon
the principle that he who without fault on his part is injured by
another’s wrongful act is entitled to indemnity, and in the other upon
the doctrine of contribution. One of two masters, who is compelled to
pay damages by reason of his servant’s negligence, may have contribution
from the other because he has removed a burden common to both. They may
recover indemnity of the servant, because as against him they are
without fault, and are directly injured by his misconduct. One who is so
far innocent that he can recover for an injury to his person or
property, may also recover whatever sum he, by reason of his relation to
the wrong, has been compelled to pay to a third person. If the
plaintiffs could recover for an injury to their horse, caused by the
accident, they may recover the sum which they paid to Clapp.

The declaration is general. It does not disclose the particulars of the
plaintiffs’ negligence, by reason of which Clapp recovered against them.
Under it, cases differing widely in their facts and legal aspects may be
proved. Among others possible, it may be shown that the horse was in the
charge of the plaintiffs’ servants, who might have prevented its fright
or its running after the fright, or if they could do neither, that they
might nevertheless have avoided the injury to Clapp; or it may appear
that the plaintiffs’ negligence consisted solely in permitting the
horse, whether attended or unattended by their servants, to be at the
place where it was at the time of the fright. The generality of the
declaration does not render it bad in law. Corey _v._ Bath, 35 N. H.
531. If the plaintiffs are entitled to judgment upon any state of facts
provable under it, the demurrer must be overruled. Whether the
plaintiffs can recover in any case, and if so, in what cases, possible
to be proved under the declaration, are speculative or hypothetical
questions, of which none may, and all cannot, arise. They involve
substantially the whole subject of the law relating to mutual
negligence. The case might properly be discharged without considering
them (Smith _v._ Cudworth, 24 Pick. 196), and the parties required to
present by the pleadings, or by a verdict, the facts upon which their
rights depend. A brief consideration, however, of the general questions
involved, may, it is thought, facilitate a trial, and save expense to
the parties.

Ordinary care is such care as persons of average prudence exercise under
like circumstances. Tucker _v._ Henniker, 41 N. H. 317; Sleeper _v._
Sandown, 52 N. H. 244; Aldrich _v._ Monroe, 60 N. H. 118. Every one in
the conduct of his lawful business is bound to act with this degree of
care, and if he fails to do so is responsible for the consequences. It
follows that a person injured by reason of his want of ordinary care, or
(since the law makes no apportionment between actual wrong-doers) by the
joint operation of his own and another’s negligence, is remediless. This
general rule of law justly applied to the facts determines, it is
believed, the rights of the parties in all actions for negligence. In
its application, the law, as in various other cases, deals with the
immediate cause,—the cause as distinguished from the occasion,—and looks
at the natural and reasonably to be expected effects. Cowles _v._
Kidder, 24 N. H. 383; Hooksett _v._ Company, 44 N. H. 108; McIntire _v._
Plaisted, 57 N. H. 608; Solomon _v._ Chesley, 59 N. H. 243; China _v._
Southwick, 12 Me. 238; Lowery _v._ Western U. Tel. Co., 60 N. Y. 198;
Rigby _v._ Hewitt, 5 Exch. 243; Blyth _v._ Birmingham Waterworks Co., 11
Exch. 781; Bank of Ireland _v._ Evans’s Charities, 5 H. L. Ca. 389, 410,
411; Ionides _v._ Marine Ins. Co., 14 C. B. N. S. 259; Romney Marsh _v._
Trinity House, L. R. 5 Ex. 204; Holmes _v._ Mather, L. R. 10 Ex. 268;
Sharp _v._ Powell, L. R. 7 C. P. 253; Pearson _v._ Cox, 2 C. P. Div.
369; Tutein _v._ Hurley, 98 Mass. 211; Bro. Leg. Max. 215.

Actions for negligence may, for convenience of consideration, be
separated into four classes, namely,—where, upon the occasion of the
injury complained of (1) the plaintiff, (2) the defendant, or (3)
neither party was present, and (4) where both parties were present. In
all of them it may happen that both parties were more or less negligent.
Actions upon the statute of highways are a common example of the first
class. The negligence of the defendant, however great, does not relieve
the plaintiff from the duty of exercising ordinary care. If,
notwithstanding the defective condition of the highway, this degree of
care on the part of the plaintiff would prevent the accident, his and
not the defendant’s negligence, though but for the latter it could not
happen, is, in the eye of the law, its sole cause. Farnum _v._ Concord,
2 N. H. 394; Butterfield _v._ Forrester, 11 East, 60. In this class of
cases, an injury which the plaintiff’s negligence contributes to produce
could not happen without it. The not uncommon statement that the
plaintiff cannot recover if his negligence contributes in any degree to
cause the injury, is strictly correct, although the word “contribute”
may be, as Crompton, J., in Tuff _v._ Warman, 5 C. B. N. S. 584, says it
is, “a very unsafe word to use,” and “much too loose.” The result is the
same whether the plaintiff acts with full knowledge of the danger, or,
by reason of a want of proper care, fails to discover it seasonably. If
he is not bound to anticipate, and in advance provide for, another’s
negligence, he may not wilfully or negligently shut his eyes against its
possibility. He is bound to be informed of everything which ordinary
care would disclose to him. He can no more recover for an injury caused
by driving into a dangerous pit, of which he is ignorant, but of which
ordinary care would have informed him, than for one caused by carelessly
driving into a known pit. Norris _v._ Litchfield, 35 N. H. 271; Clark
_v._ Barrington, 41 N. H. 44; Tucker _v._ Henniker, 41 N. H. 317;
Winship _v._ Enfield, 42 N. H. 213, 214; Underhill _v._ Manchester, 45
N. H. 220.

The defendant’s negligence being found or conceded, the remaining
question is, whether the plaintiff, by the exercise of ordinary care,
could have escaped the injury. If he could not, he is free from fault,
and is entitled to recover. If he could, he not only cannot recover for
his own injury, but is himself liable to the other party, if the latter
is injured; and the case becomes one of the second class, of which
Davies _v._ Mann, 10 M. & W. 546, is an instance. The defendant is
liable here for the same reason that, as plaintiff, he could not
recover,—that is to say, because ordinary care on his part would have
prevented the injury. The fact that one has carelessly exposed his
property in a dangerous situation does not absolve his neighbors from
the obligation of conducting themselves in regard to it with ordinary
care. An injury which that degree of care would prevent is caused by the
want of it, and not by the owner’s negligence in leaving his property in
a perilous position. A surgeon, called to set a leg carelessly broken,
cannot successfully urge, in answer to a suit for mal-practice, that the
patient’s negligence in breaking his leg caused the crooked or shortened
limb. Lannen _v._ Albany Gas-light Co., 44 N. Y. 459, 463; Hibbard _v._
Thompson, 109 Mass. 286, 289. So far as the question of civil liability
is concerned, there is no distinction, except it may be in the measure
of damages (Fay _v._ Parker, 53 N. H. 342, Bixby _v._ Dunlap, 56 N. H.
456), between wilful and negligent wrongs. One who, without reasonable
necessity, kills his neighbor’s ox, found trespassing in his field, is
equally liable whether he does it purposely or carelessly. Aldrich _v._
Wright, 53 N. H. 398; McIntire _v._ Plaisted, 57 N. H. 606; Cool. Torts,
688–694. Mann would be no more liable for wilfully shooting the fettered
ass which Davies has carelessly left in the public highway, than he is
for the running over it, which, by ordinary care, he could avoid. The
owner’s negligence, in permitting the ox to stray and in leaving the ass
fettered in the street, although without it the injury would not happen,
is no more the cause, in a legal sense, of the negligent than of the
wilful wrong. In each case alike,—as in that of the broken leg,—it
merely affords the wrong-doer an opportunity to do the mischief.
Bartlett _v._ Boston Gas-light Co., 117 Mass. 533; Clayards _v._
Dethick, 12 Q. B. 439, 445.

Knowledge, or its equivalent, culpable ignorance, and ignorance without
fault of the situation, are circumstances by which, among others, the
requisite measure of vigilance is determined. Griffin _v._ Auburn, 58 N.
H. 121, 124; Palmer _v._ Dearing, 93 N. Y. 7; Robinson _v._ Cone, 22 Vt.
213. The question of contributory negligence is not involved. The wrong,
if any, is the negligent injury of property carelessly exposed to
danger. The only question is, whether the defendant could have prevented
it by ordinary care. If he could not, he is without fault, and not
liable. If he could, his negligence is, in law, the sole cause of the
injury. Davies _v._ Mann, 10 M. & W. 546; Radley _v._ London, &c.
Railway, 1 App. Ca. 754; Mayor of Colchester _v._ Brooke, 7 Q. B. 377;
Isbell _v._ N. Y. & N. H. Railroad, 27 Conn. 393; Trow _v._ Vt. Central
Railroad, 24 Vt. 487; Harlan _v._ St. Louis, &c. Railroad, 64 Mo. 480;
Kerwhacker _v._ Cleveland, &c. Railroad, 3 Ohio St. 172.

The law is not affected by the presence or the absence of the parties,
nor by the difficulty of applying it to complicated facts. To warrant a
recovery where both parties are present at the time of the injury, as
well as in other cases, ability on the part of the defendant must concur
with non-ability on the part of the plaintiff to prevent it by ordinary
care. Their duty to exercise this degree of care is equal and
reciprocal; neither is exonerated from his obligation by the present or
previous misconduct of the other. The law no more holds one responsible
for an unavoidable, or justifies an avoidable, injury to the person of
one who carelessly exposes himself to danger, than to his property,
similarly situated in his absence. He who cannot prevent an injury
negligently inflicted upon his person or property by an intelligent
agent, “present and acting at the time” (State _v._ Railroad, 52 N. H.
528, 557; White _v._ Winnisimmet Co., 7 Cush. 155, 157; Robinson _v._
Cone, 22 Vt. 213), is legally without fault, and it is immaterial
whether his inability results from his absence, previous negligence, or
other cause. On the other hand, his neglect to prevent it, if he can, is
the sole or co-operating cause of the injury. No one can justly complain
of another’s negligence, which, but for his own wrongful interposition,
would be harmless. Parker _v._ Adams, 12 Met. 415.

Cases of this class assume a great variety of aspects. While all are
governed by the fundamental principle, that he only who by ordinary care
can and does not prevent an injury, is responsible in damages, it is
impossible to formulate a rule in language universally applicable. A
statement of the law correct in its application to one state of facts
may be inaccurate when applied to another. Instructions to the jury
proper and sufficient in a case of the first class, would be not only
inappropriate but incorrect in one of the second class. The doctrine
laid down in Tuff _v._ Warman, 5 C. B. N. S. 573, 585, however just and
well suited to the evidence in that case, was held erroneous as applied
to the facts in Murphy _v._ Deane, 101 Mass. 455, 464–466, and, as a
general proposition, seems indefensible.

An accident may result from a hazardous situation caused by the previous
negligence of one or both parties. If, at the time of the injury, the
defendant is unable to remove the danger which his negligence has
created, the case becomes, in substance, one of the first class; the
plaintiff can recover or not, according as, by ordinary care, he can or
cannot protect himself from the natural consequences of the situation.
If the plaintiff, in like manner, is unable to obviate the danger which
his prior negligence has produced, the case becomes, substantially, one
of the second class; he can recover or not, according as the defendant,
by the same degree of care, can or cannot avoid the natural consequences
of such negligence. If due care on the part of either at the time of the
injury would prevent it, the antecedent negligence of one or both
parties is immaterial, except it may be as one of the circumstances by
which the requisite measure of care is to be determined. In such a case
the law deals with their behavior in the situation in which it finds
them at the time the mischief is done, regardless of their prior
misconduct. The latter is _incuria_, but not _incuria dans locum
injuriae_,—it is the cause of the danger; the former is the cause of the
injury. Metropolitan Railway _v._ Jackson, 3 App. Ca. 193, 198; Dublin,
&c. Railway _v._ Slattery, 3 App. Ca. 1155, 1166; Davey _v._ London, &c.
Railway, 12 Q. B. Div. 70, 76; Churchill _v._ Rosebeck, 15 Conn. 359,
363–365.

If a person, who by his carelessness is put in a position perilous to
himself and to others, while in that position does all that a person of
average prudence could, he is guilty of no wrong towards another who
embraces the opportunity negligently to injure him, or who receives an
injury which proper care on his part would prevent. It would doubtless
be esteemed gross carelessness to navigate the Atlantic in a vessel
without a rudder, but if the owner, while sailing his rudderless ship
with ordinary care, is negligently run down by a steamer, the latter
must pay the damages, and can recover none if it is injured. Dowell _v._
Steam Navigation Co., 5 E. & B. 195; Haley _v._ Earle, 30 N. Y. 208;
Hoffman _v._ Union Ferry Co., 47 N. Y. 176. If the vessel, by reason of
its lack of a rudder, runs upon and injures the steamer, both being in
the exercise of ordinary care at the time, the former must pay the
damages. He who by his negligence has produced a dangerous situation is
responsible for an injury resulting from it to one who is without fault.

If, at the time of the injury, each of the parties, or, in the absence
of antecedent negligence, if neither of them could prevent it by
ordinary care, there can be no recovery. The comparatively rare cases of
simultaneous negligence will ordinarily fall under one or the other of
these heads. If the accident results from the combined effect of the
negligence of both parties, that of neither alone being sufficient to
produce it, proof by the plaintiff that due care on the part of the
defendant would have prevented it will not entitle him to recover,
because like care on his own part would have had the same effect. If the
misconduct of each party is an adequate cause of the injury, so that it
would have occurred by reason of either’s negligence without the
co-operating fault of the other, proof by the plaintiff that by due care
he could not have prevented it will not entitle him to recover, because
no more could the defendant have prevented it by like care. Murphy _v._
Deane, 101 Mass. 464, 465; Churchill _v._ Holt, 131 Mass. 67. In each
case alike they are equally in fault. To warrant a recovery, the
plaintiff must establish both propositions, namely, that by ordinary
care he could not, and the defendant could, have prevented the injury.
State _v._ Railroad, 52 N. H. 528; Bridge _v._ Grand Junction Railway, 3
M. & W. 244; Dowell _v._ Steam Navigation Co., 5 E. & B. 195; Tuff _v._
Warman, 5 C. B. N. S. 573; Davey _v._ London, &c. Railway, 12 Q. B. Div.
70; Munroe _v._ Leach, 7 Met. 274; Lucas _v._ New Bedford, &c. Railroad,
6 Gray, 64; Murphy _v._ Deane, 101 Mass. 455; Hall _v._ Ripley, 119
Mass. 135; Button _v._ Hudson, &c. Railroad, 18 N. Y. 248; Austin _v._
N. J. Steamboat Co., 43 N. Y. 75; Barker _v._ Savage, 45 N. Y. 194;
Cool. Torts, 674, 675, and cases cited.

In the comparatively unfrequent cases of the third class, a negligent
plaintiff can seldom, if ever, recover. Where both parties are careless,
they are usually, if not always, equally in fault; ordinary care on the
part of either would prevent the injury. Not being present on the
occasion of the accident, neither can, in general, guard against the
consequences of the other’s negligence. Blyth _v._ Topham, Cro. Jac.
158; Sybray _v._ White, 1 M. & W. 435; Williams _v._ Groucott, 4 B. & S.
149; Lee _v._ Riley, 18 C. B. N. S. 722; Wilson _v._ Newberry, L. R. 7
Q. B. 31; Lawrence _v._ Jenkins, L. R. 8 Q. B. 274; Firth _v._ Bowling
Iron Co., 3 C. P. Div. 254; Crowhurst _v._ Amersham Burial Board, 4 Ex.
Div. 5; Bush _v._ Brainard, 1 Cow. 78; Lyons _v._ Merrick, 105 Mass. 71;
Page _v._ Olcott, 13 N. H. 399.

If there are actions for negligence of such a character that the rights
of the parties are not determinable by the application of these
principles, the present case is not one of them. If, notwithstanding the
defendants’ negligence, the plaintiffs, by ordinary care, could have
prevented the fright of the horse, or its running, after the fright, or,
in the absence of ability to do either, if they could have avoided the
running upon and injury to Clapp, their misconduct, and not that of the
defendants, was the cause of the accident, and they cannot recover. On
the other hand, if the plaintiffs’ carelessness consisted solely in
permitting the horse to be where it was at the time, and ordinary care
by the defendants would have prevented its fright, or, if the
plaintiffs, by proof of any state of facts competent to be shown under
the declaration, can make it appear that at the time of the occurrence
they could not, and the defendants could, by such care have prevented
the accident, they are entitled to recover.

                                                   _Demurrer overruled._


             OATES _v._ METROPOLITAN STREET RAILWAY COMPANY
                 SUPREME COURT, MISSOURI, MAY 21, 1902.
           _Reported in 168 Missouri Reports, 535, 547–549._

  MARSHALL, J.... Instructions three and seven given for the defendant
  sharply drew a distinction between the negligence of the defendant and
  the contributory negligence of the plaintiff. Those instructions
  declared the law to be that the defendant was not liable unless its
  negligence was the direct cause of the injury, while the plaintiff was
  not entitled to recover if his negligence “but contributes to the
  injury.” That is, that the defendant was liable only for direct
  negligence, while the plaintiff was cut off from recovery if he was
  guilty of any negligence, however slight or remote or indirect it may
  have been.

  The law is that a defendant is liable if his negligence was the direct
  and proximate cause of the injury, unless the plaintiff has also been
  guilty of such negligence as directly contributed to the happening of
  the injury, and the defendant is not liable no matter how negligent he
  may have been if the plaintiff’s negligence has thus contributed to
  the injury, for the doctrine of comparative negligence has never
  obtained in this State. Hurt _v._ Railroad, 94 Mo. 264. In each
  instance the negligence and the contributory negligence must be
  direct, that is, must have entered into and formed a part of the
  efficient cause of the accident. Hoepper _v._ Hotel Co., 142 Mo. 388;
  Beach on Contr. Neg. (2 ed.), sec. 24; Matthews _v._ Toledo, 21 Ohio
  Cir. Ct. Rep. 69; Dunkman _v._ Railroad, 16 Mo. App. 548; Corcoran
  _v._ Railroad, 105 Mo. 399; Murray _v._ Railroad, 101 Mo. 236; Kellny
  _v._ Railroad, 101 Mo. 67; Hicks _v._ Railroad, 46 Mo. App. 403;
  Pinnell _v._ Railroad, 49 Mo. App. 170; Meyers _v._ Railroad, 59 Mo.
  223.

  Mere negligence, without any resulting damage, no more bars a
  plaintiff’s recovery than it creates a liability against a defendant.
  Dickson _v._ Railroad, 124 Mo. 140. Remote negligence which does not
  become an efficient cause, neither creates nor bars a liability.
  Kennedy _v._ Railroad, 36 Mo. 351; Meyers _v._ Railroad, 59 Mo. 223.
  It is only where the plaintiff’s negligence contributes directly to
  his injury that it precludes his recovery therefor, Moore _v._
  Railroad, 126 Mo. 265. And the plaintiff’s contributory negligence
  must mingle with the defendant’s negligence as a direct and proximate
  cause in order to bar a recovery. Nolan _v._ Shickle, 69 Mo. 336;
  Frick _v._ Railroad, 75 Mo. 542.

  These instructions were, therefore, erroneous, and as the jury was
  misdirected and as the plaintiff had made out a _prima facie_ case, he
  was entitled to have the law properly declared to the jury, and the
  trial court did right in granting a new trial.[204]


        CARPENTER, J., IN NIEBOER _v._ DETROIT ELECTRIC RAILWAY
               (1901) _128 Michigan, 486, 491, 492._[205]

  CARPENTER, J. “... The law by which it is determined whether or not
  the contributory negligence of the plaintiff bars recovery is very
  uncertain. The adjudicated cases are by no means harmonious, and there
  is an irreconcilable conflict between the principles announced by
  eminent judges and the text-book writers. It has been stated that the
  plaintiff cannot recover if the injury complained of would not have
  occurred without his negligence. It has also been stated that
  plaintiff’s negligence will not bar his recovery if due care on the
  part of the defendant would have prevented the injury. If the first
  statement is correct, contributory negligence always prevents a
  recovery; if the second statement is correct, contributory negligence
  never prevents recovery. The truth is that the first statement can be
  correctly applied only in cases of simultaneous negligence, as in the
  case of an injury to a person while crossing a railway in consequence
  of his own and the railway company’s negligence. The second statement
  can be correctly applied only in cases of successive negligence, as in
  the famous Donkey Case, of Davies _v._ Mann, 10 Mees. & W. 546, where
  defendant negligently ran into and injured the plaintiff’s donkey,
  which plaintiff had negligently permitted to go unattended on the
  highway. The test almost universally approved is whether or not
  plaintiff’s negligence is the proximate cause of his injury. If it is,
  he cannot recover; if it is not, he can. Even this test has been
  criticised on the ground that the term ‘proximate’ is misleading. I
  think this criticism just and important. The word ‘proximate’ is
  ordinarily used to indicate the relation between defendant’s
  negligence and the plaintiff’s injury. As so used, it has not the same
  meaning that it has when used to indicate the relation between
  plaintiff’s negligence and plaintiff’s injury. To illustrate, suppose
  in the case of Davies _v._ Mann, above referred to, that, as a result
  of the collision between the cart and the donkey, a third person had
  been injured; I think all will agree that the owner of the donkey, as
  well as the owner of the cart, would have been liable. See Lynch _v._
  Nurdin, 1 Q. B. (N. S.) 29. And we have already seen that the
  negligence of the owner of the donkey was not so related to the
  collision as to preclude recovery in a suit by him against the owner
  of the cart. As used in relation to contributory negligence, the term
  ‘proximate’ simply means that in some way the relation between
  plaintiff’s negligence and his injury is more remote than that between
  defendant’s negligence and the injury.”[206]


               DROWN _v._ NORTHERN OHIO TRACTION COMPANY
                   SUPREME COURT, OHIO, MAY 7, 1907.
               _Reported in 76 Ohio State Reports, 234._

Action for damage done to plaintiff’s buggy by an electric car which
came up behind it and hit it. Answer: denying that defendant was
negligent, and alleging negligence on plaintiff’s part.

On the trial, it appeared that Hardy, plaintiff’s driver, drove upon the
track without looking behind to see if a car was coming.

Defendant requested the following instructions:—

(3) If the jury find from the evidence that the plaintiff, through his
agent, Hardy, and the defendant were both negligent, and that the
negligence of both directly contributed to cause the injury complained
of in plaintiff’s petition, then your verdict should be for the
defendant.

(4) If the jury find that the negligence of both plaintiff’s agent and
the defendant combined so as to directly cause the injury complained of
by plaintiff, then your verdict should be for the defendant.

These requests to instruct were refused.

The court, among other instructions, charged in substance as follows:—

If you find that the motorman could, by the exercise of ordinary care,
have seen the plaintiff and stopped the car, and that by reason of the
failure to stop the car Hardy’s team was knocked down and injured, it
would be such negligence on the part of the defendant as would entitle
the plaintiff to recover, provided Hardy was free from contributory
negligence on his part.

If Hardy was on this track driving south, and you find that he was
negligent in being on it as he was, his failure to look or failure to
watch to avoid injury, if he was negligent, would not prevent him from
recovering in this suit, if the motorman, after discovering him in that
position, could have, by the use of reasonable and ordinary care,
avoided the injury by stopping the car. [This was a restatement in
concrete form of an abstract proposition already stated in the charge.]

In the Common Pleas Court there was a verdict for plaintiff and judgment
thereon. The Circuit Court reversed the judgment of the Common Pleas.
Plaintiff brought error.[207]

DAVIS, J. Under the issues in this case, evidence was introduced tending
to prove that the plaintiff’s agent was guilty of negligence directly
contributing to the injury to plaintiff’s property. If the driver of the
plaintiff’s team, immediately upon entering Main Street, and without
afterwards looking to the north, as he admits, drove southward upon the
track until the car coming from the north overtook and collided with the
buggy, he was negligent; because the street was open and unobstructed
for from two hundred to two hundred and fifty feet from the point at
which he entered upon it, and it was not necessary for him to go upon
the street railway track, and because, the night being dark, he
unnecessarily put himself in a place of obvious danger and continued
therein until the moment of the accident, without looking out for an
approaching car or doing anything whatever to avoid injury, apparently
risking his life and the property of his principal upon the presumption
that the defendant’s employees would make no mistakes nor be guilty of
any negligence. If, on the other hand, he drove along the street until
he came to the obstruction and then turned out upon the track to go
around it without again looking, as his own testimony shows that he did
not, and was then almost in the same instant struck by the car, he was
negligent. Upon either hypothesis, assuming that the defendant was
negligent in not keeping a proper lookout, or was otherwise not
exercising ordinary care to prevent collision with persons lawfully on
its track, the plaintiff could not recover, if it should appear in the
case that the negligence of both is contemporaneous and continuing until
after the moment of the accident, because, in such case the negligence
of each is a direct cause of the injury without which it would not have
occurred, rendering it impracticable in all such instances, if not
impossible, to apportion the responsibility and the damages. Suppose,
for example, that not only the buggy and horses had been injured, but
the defendant’s car also, by what standard could the extent of liability
of either party be determined? Timmons _v._ The Central Ohio Railroad
Co., 6 Ohio St. 105; Village of Conneaut _v._ Naef, 54 Ohio St. 529,
531. In short, there can be no recovery in such a case unless the whole
doctrine of contributory negligence, a doctrine founded in reason and
justice, should be abolished.

Under these circumstances, therefore, it was not sufficient to say to
the jury that if they should find that the motorman who had charge of
the car which struck the team, could by the exercise of ordinary care
have seen the team and could have stopped the car and that by reason of
the failure to do so the team was injured, it would be such negligence
by the defendant as would entitle the plaintiff to recover, provided
that the plaintiff’s driver was “free from contributory negligence.” The
defendant had the right to have the jury specifically instructed, as it
requested, that if the jury should find from the evidence that both the
plaintiff and the defendant, through their agents, were negligent, and
that the negligence of both combined so as to directly cause the injury
complained of, then the verdict should be for the defendant. The court
refused to so instruct the jury, and the circuit court correctly held
that the refusal to so charge was erroneous.

The error in refusing the defendant’s request to charge, was extended
and made much more prejudicial when the court, after giving instructions
as to contributory negligence by the plaintiff in very general terms,
proceeded to impress upon the jury, by repetition and with some
emphasis, the doctrine known as “the last chance.” This doctrine is
logically irreconcilable with the doctrine of contributory negligence,
and accordingly it has been vigorously criticised and warmly defended.
Probably, as in many such controversies, the truth lies in middle
ground; but it is certain that the rule is applicable only in
exceptional cases, and the prevalent habit of incorporating it in almost
every charge to the jury in negligence cases, in connection with, and
often as a part of, instructions upon the subject of contributory
negligence, is misleading and dangerous.

This confusion seems to arise either from misapprehension of the law or
a want of definite thinking. The doctrine of the “last chance” has been
clearly defined by a well-known text-writer as follows: “Although a
person comes upon the track negligently, yet if the servants of the
railway company, _after they see_ his danger, can avoid injuring him,
they are bound to do so. And, according to the better view with
reference to injuries to travellers at highway crossings—as
distinguished from injuries to _trespassers_ and _bare licensees_ upon
railway tracks at places where they have no legal right to be—the
servants of the railway company are bound to keep a vigilant lookout in
front of advancing engines or trains, to the end of discovering persons
exposed to danger on highway crossings; and the railway company will be
liable for running over them if, by maintaining such a lookout and by
using reasonable care and exertion to check or stop its train, it could
avoid injury to them.” 2 Thompson, Negligence, sec. 1629. The italics
are the author’s. Now, it must be apparent upon even a slight analysis
of this rule that it can be applied only in cases where the negligence
of the defendant is proximate and that of the plaintiff remote; for if
the plaintiff and the defendant both be negligent and the negligence of
both be concurrent and directly contributing to produce the accident,
then the case is one of contributory negligence pure and simple. But if
the plaintiff’s negligence merely put him in the place of danger and
stopped there, not actively continuing until the moment of the accident,
and the defendant either knew of his danger, or by the exercise of such
diligence as the law imposes on him would have known it, then, if the
plaintiff’s negligence did not concurrently combine with defendant’s
negligence to produce the injury, the defendant’s negligence is the
proximate cause of the injury and that of the plaintiff is a remote
cause. This is all there is of the so-called doctrine of “the last clear
chance.” A good illustration is found in the case of Railroad Co. _v._
Kassen, 49 Ohio St. 230. Kassen walked through the rear car of the train
on which he was a passenger to the rear platform, from which he either
stepped off or fell off upon the track, where he lay for about two
hours, when he was run over by another train. It was held that, although
Kassen may have been negligent in going upon the rear platform and
stepping or falling off, yet since the railroad company knew of his
peril and had ample time to remove him or to notify the trainmen on the
later train, its negligence in not doing so was the proximate cause of
Kassen’s death and the negligence of Kassen was remote. In that case the
proximate cause and the remote cause were so clearly distinguishable,
and it is so very evident from the opinion and the syllabus that this
distinction was the real ground of the judgment of the court, that it is
somewhat surprising that the doctrine of last chance as stated in that
case should have been so often misinterpreted as a qualification of the
doctrine of contributory negligence.

It is clear, then, that the last chance rule should not be given as a
hit or miss rule in every case involving negligence. It should be given
with discrimination. Since the plaintiff can recover only upon the
allegations of his petition, if there is no charge in the petition that
the defendant after having notice of the plaintiff’s peril could have
avoided the injury to plaintiff, and there is no testimony to support
such charge, the giving of such a charge would be erroneous. There is no
such allegation in the petition in this case. But further, there is
testimony tending to prove that the plaintiff’s team was driven upon the
street railway track in the night time, ahead of the car, and that it
continued on the track for a distance of two hundred and fifty feet
until struck by the car, without taking any precaution to avoid
accident. Assuming that the defendant was negligent in not seeing the
buggy on the track and in not avoiding the accident, yet the plaintiff’s
negligence was continuous and was concurrent at the very moment of the
collision. It proximately contributed to the collision, for without it
the collision would not have occurred. There was no new act of
negligence by the defendant, which was independent of the concurrent
negligence and which made the latter remote. Therefore there was no
place in the case for the doctrine of “the last clear chance.”

[Remainder of opinion omitted.]

                                   _Judgment of Circuit Court affirmed._


      MCLAIN, J., IN FULLER _v._ ILLINOIS CENTRAL RAILROAD COMPANY
                  (1911) _100 Mississippi, 705, 716._

  MCLAIN, J.... The rule is settled beyond controversy or doubt, first
  that all that is required of the railroad company as against a
  trespasser is the abstention from wanton or willful injury, or that
  conduct which is characterized as gross negligence; second, although
  the injured party may be guilty of contributory negligence, yet this
  is no defense if the injury were willfully, wantonly, or recklessly
  done or the party inflicting the injury was guilty of such conduct as
  to characterize it as gross; and, third, that the contributory
  negligence of the party injured will not defeat the action if it is
  shown that the defendant might by the exercise of reasonable care and
  prudence have avoided the consequence of the injured party’s
  negligence. This last principle is known as the doctrine of the “last
  clear chance.” The origin of this doctrine is found in the celebrated
  case of Davies _v._ Mann, 10 Mees. & W. 545.... It is impossible to
  follow this case through its numerous citations in nearly every
  jurisdiction subject to Anglo-American jurisprudence. For the present
  it will be sufficient to say that the principle therein announced has
  met with practically almost universal favor. It has been severely
  criticised by some text-writers.... The law as enunciated in that case
  has come to stay....

  An analytical examination of the adjudged cases upon this subject will
  demonstrate the correctness of the above analysis, and, in addition,
  establish the soundness and technical accuracy announced in Davies
  _v._ Mann, _supra_. This case has been criticised most severely ... by
  courts of high authority, but these courts have utterly and entirely
  failed to appreciate the base upon which the principle is bottomed,
  and in repudiating the principle do so upon the idea that Davies _v._
  Mann establishes the much-abused comparative negligence doctrine, a
  doctrine repudiated by this court, but established in this state by
  Laws 1910, ch. 135, p. 125. (But this statute has no reference to the
  instant case because passed subsequent to the injuries complained of.)
  In order for the injured party’s negligence to bar recovery, all of
  the authorities hold that it must be the proximate cause; otherwise,
  it is not contributory. Now, when it is fully understood that the
  negligence of the injured party must be the proximate cause in order
  to bar the remedy (and, as said above, all authorities everywhere,
  ancient and modern, so affirm), the principle announced in Davies _v._
  Mann must, from necessity, be the correct and true rule. If the
  proximate and immediate cause of the injury—the _causa causans_—is the
  controlling and determining factor in ascertaining whether the injured
  party has the right to recover or whether the injuring party is not
  liable, then it must follow, as night the day, that the party who has
  the last opportunity to avoid the injury is the one upon whom the
  blame shall fall. To express the idea differently: If the injured
  party’s negligence be remote, and not proximate, he can recover
  against the party who is guilty of negligence proximately contributing
  or causing the injury. The North Carolina courts have perhaps more
  satisfactorily and more clearly elucidated this question than have any
  opinions that have come under the writer’s eye. In Smith _v._ N. & S.
  R. R. Co., 114 N. C. 728, 19 S. E. 863, 923, 25 L. R. A. 287, it is
  said that the rule in Davies _v._ Mann simply furnishes a means for
  ascertaining whether the plaintiff’s negligence is a remote or
  proximate cause of the injury; that, before the introduction of this
  rule, any negligence on the part of the plaintiff, which in any degree
  contributes to the injury, was judicially treated as the proximate
  cause, and constituted contributory negligence which barred recovery.
  The same is clearly stated in Nashua Iron & Steel Co. _v._ W. & N. R.
  R. Co., 62 N. H. 159, 163, _et seq._ The antecedent negligence of the
  injured party, having been thus relegated to the position of a
  condition or remote cause of the accident, it cannot be regarded as
  contributory, since it is well established that negligence, in order
  to be contributory, must be at least one of the proximate causes.[208]


        LORD O’BRIEN, C. J., IN BUTTERLY _v._ MAYOR OF DROGHEDA
                  [1907] _2 Irish Reports, 134, 137._

  LORD O’BRIEN, L. C. J.:—

  The facts which give rise to the controversy we have to determine, in
  this case, are comprised within a narrow compass. The plaintiff, on a
  Saturday morning, was coming into the town of Drogheda in a car driven
  by himself. Coming near the town he, as he alleged, was overtaken by
  the horse and car of Mrs. Morgan. She desired to pass. He says he made
  way for her, and, in doing so, ran against a heap of stones on the
  road, and his car was upset and he was injured. It appears that there
  were two heaps of stones on the road. They had been, immediately
  before the collision, thrown on the road in order that they might be
  spread on the road. The man who brought the load, and had thrown them
  on the road, was a servant of the defendants. The intention was to
  spread them immediately on the road. The man who brought them was in
  fact, at the time of the accident, engaged in spreading the heap next
  the town, some little distance from the heap where the accident
  occurred. Now the first heap, where the accident occurred, was placed
  on the road in such a position that there was between it and the right
  side of the road a space of 12 feet, and between this heap and the
  left side of the road, 6 feet. That is to say, on the right side there
  was a space sufficient for two cars to pass simultaneously, and on the
  left a space for one car to pass. The plaintiff’s case was that, Mrs.
  Morgan overtaking him, he made room for her, pulled to the left, and
  without any default of his, his car ran upon the heap and was
  capsized. His case was that Mrs. Morgan caught him exactly where the
  heap was, and, in endeavoring to avoid her, and without any default or
  negligence on his part, the accident occurred. Now, three questions
  were left to the jury:—

  1. Were the defendants, by their workmen, guilty of negligence? Yes.

  2. Was the plaintiff guilty of negligence? Yes.

  And if so—

  3. Could the defendants, by the exercise of ordinary care, have
  avoided the consequence of the plaintiff’s negligence? Yes.

  I have invariably refused, in these negligence cases, to leave
  questions in this form to a jury. This formula appears to me
  calculated to perplex and embarrass a jury. No doubt this formula is
  used, and judges do their best to explain it, but I fear that when
  juries take up the questions in the jury-room, the explanation has not
  the desired effect. Chief Justice Monahan consistently refused to put
  the questions in this shape to the jury. I have always tried these
  cases on two questions: 1st, Were the defendants guilty of negligence?
  and, 2d, if so, was the defendant’s negligence the real, direct, and
  immediate cause of the misfortune? Now, the jury in the present case
  answered the questions submitted to them in the way I have read. I am
  of opinion that the answer to the question finding that the plaintiff
  was guilty of negligence, determines the matter in favor of the
  defendants. It is quite plain, in my opinion, that his negligence was
  a direct contributory cause of the accident. It was a cause which
  brought him on the heap of stones. Assuming that there was negligence
  on the part of the defendants in having the stones there, still his
  negligence must have contributed to his running up against them. He
  either did not keep a sufficient lookout, or his unskilful driving
  brought him on the stones. Getting on the stones, through negligence,
  was at least a contributory cause of the accident. It directly
  contributed to the accident. If there be two causes directly
  contributing to the accident, one the negligence of the defendant and
  the other the negligence of the plaintiff, the result is a verdict for
  the defendant.


          BRITISH COLUMBIA ELECTRIC RAILWAY COMPANY _v._ LOACH
                  IN THE PRIVY COUNCIL, JULY 26, 1915.
                _Reported in [1916] Appeal Cases, 719._

LORD SUMNER. This is an appeal from a judgment of the Court of Appeal of
British Columbia in favor of the administrator of the estate of Benjamin
Sands, who was run down at a level crossing by a car of the appellant
railway company and was killed. One Hall took Sands with him in a cart,
and they drove together on to the level crossing, and neither heard nor
saw the approaching car till they were close to the rails and the car
was nearly on them. There was plenty of light and there was no other
traffic about. The verdict, though rather curiously expressed, clearly
finds Sands guilty of negligence in not looking out to see that the road
was clear. It was not suggested in argument that he was not under a duty
to exercise reasonable care, or that there was not evidence for the jury
that he had disregarded it. Hall, who escaped, said that they went
“right on to the track,” when he heard Sands, who was sitting on his
left, say “Oh,” and looking up saw the car about fifty yards off. He
says he could then do nothing, and with a loaded wagon and horses going
two or three miles an hour he probably could not. It does not seem to
have been suggested that Sands could have done any good by trying to
jump off the cart and clear the rails. The car knocked cart, horses, and
men over, and ran some distance beyond the crossing before it could be
stopped. It approached the crossing at from thirty-five to forty-five
miles an hour. The driver saw the horses as they came into view from
behind a shed at the crossing of the road and the railway, when they
would be ten or twelve feet from the nearest rail, and he at once
applied his brake. He was then 400 feet from the crossing. If the brake
had been in good order it should have stopped the car in 300 feet. Apart
from the fact that the car did not stop in time, but overran the
crossing, there was evidence for the jury that the brake was defective
and inefficient and that the car had come out in the morning with the
brake in that condition. The jury found that the car was approaching at
an excessive speed and should have been brought under complete control,
and although they gave as their reason for saying so the presence of
possible passengers at the station by the crossing, and not the
possibility of vehicles being on the road, there can be no mistake in
the matter, and their finding stands. It cannot be restricted, as the
trial judge and the appellants sought to restrict it, to a finding that
the speed was excessive for an ill-braked car, but not for a
properly-braked car, or to a finding that there was no negligence except
the “original” negligence of sending the car out ill-equipped in the
morning.

Clearly if the deceased had not got on to the line he would have
suffered no harm, in spite of the excessive speed and the defective
brake, and if he had kept his eyes about him he would have perceived the
approach of the car and would have kept out of mischief. If the matter
stopped there, his administrator’s action must have failed, for he would
certainly have been guilty of contributory negligence. He would have
owed his death to his own fault, and whether his negligence was the sole
cause or the cause jointly with the railway company’s negligence would
not have mattered.

It was for the jury to decide which portions of the evidence were true,
and, under proper direction, to draw their own inferences of fact from
such evidence as they accepted. No complaint was made against the
summing-up, and there has been no attempt to argue before their
Lordships that there was not evidence for the jury on all points. If the
jury accepted the facts above stated, as certainly they well might do,
there was no further negligence on the part of Sands after he looked up
and saw the car, and then there was nothing that he could do. There he
was, in a position of extreme peril and by his own fault, but after that
he was guilty of no fresh fault. The driver of the car, however, had
seen the horses some perceptible time earlier, had duly applied his
brakes, and if they had been effective he could, as the jury found, have
pulled up in time. Indeed, he would have had 100 feet to spare. If the
car was 150 feet off when Sands looked up and said “Oh,” then each had
the other in view for fifty feet before the car reached the point at
which it should have stopped. It was the motorman’s duty, on seeing the
peril of Sands, to make a reasonable use of his brakes in order to avoid
injuring him, although it was by his own negligence that Sands was in
danger. Apparently he did his best as things then were, but partly the
bad brake and partly the excessive speed, for both of which the
appellants were responsible, prevented him from stopping, as he could
otherwise have done. On these facts, which the jury were entitled to
accept and appear to have accepted, only one conclusion is possible.
What actually killed Sands was the negligence of the railway company,
and not his own, though it was a close thing.

Some of the judges in the Courts below appear to have thought that
because the equipment of the car with a defective brake was the original
cause of the collision, and could not have been remedied after Sands got
on the line, no account should be taken of it in considering the
motorman’s failure to avoid the collision after he knew that Sands was
in danger. “You cannot charge up the same negligence under different
heads,” said Murphy, J., at the trial; “you cannot charge it up twice.”
“On the question of ultimate negligence,” he observed, “that negligence
must arise on the conditions as existing at the time of the accident. It
would, of course, be absurd to say the company had any opportunity
between the time that this rig appeared upon the track and the collision
to remedy any defect in the brake. If there was such a defect I think it
was original negligence and not what may possibly be termed ‘ultimate
negligence.’”

In the Court of Appeal Macdonald, C. J. A., delivering a dissentient
judgment in favor of the present appellants, said: “Where one party
negligently approaches a point of danger, and the other party, with like
obligation to take care, negligently approaches the same point of
danger, if there arises a situation which could be saved by one and not
by the other, and the former then negligently fail to use the means in
his power to save it, and injury is caused to the latter, that failure
is designated ultimate negligence, in the sense of being the proximate
cause of the injury. In this case it is sought to carry forward, as it
were, an anterior negligent omission of the defendants, though
continuing, it is true, up to the time of the occurrence, and to assign
to it the whole blame for the occurrence, although by no effort of the
defendants or their servants could the situation at that stage have been
saved.”

So, too, McPhillips, J. A., also dissenting, said: “Upon the evidence,
whether it was because of defective brakes or any of the acts of
negligence found against the defendants, none of them were acts of
negligence arising after the act of contributory negligence of the
deceased, and cannot be held to be acts of negligence which,
notwithstanding the later negligence of the deceased, warrant judgment
going for the plaintiff.... The motorman after he saw the vehicle could
not have stopped the car ... therefore, as nothing could be then done by
the motorman to remedy the ineffective brake, the want of care of the
deceased was the direct and effective contributory cause of the accident
resulting in his death.”

These considerations were again urged at their Lordships’ bar under
somewhat different forms. It was said (1) that the negligence relied on
as an answer to contributory negligence must be a new negligence, the
initial negligence which founded the cause of action being spent and
disposed of by the contributory negligence. Further, it was said (2)
that if the defendants’ negligence continued up to the moment of the
collision, so did the deceased’s contributory negligence, and that this
series, so to speak, of replications and rebutters finally merged in the
accident without the deceased ever having been freed from the legal
consequence of his own negligence having contributed to it.

The last point fails because it does not correspond with the fact. The
consequences of the deceased’s contributory negligence continued, it is
true, but, after he had looked, there was no more negligence, for there
was nothing to be done, and, as it is put in the classic judgment in
Tuff _v._ Warman, (1858) 5 C. B. (N. S.) 573, 585, his contributory
negligence will not disentitle him to recover “if the defendant might by
the exercise of care on his part have avoided the consequences of the
neglect or carelessness of the plaintiff.”

As to the former point, there seems to be some ambiguity in the
statement. It may be convenient to use a phraseology which has been
current for some time in the Canadian Courts, especially in Ontario,
though it is not precise. The negligence which the plaintiff proves to
launch his case is called “primary” or “original” negligence. The
defendant may answer that by proving against the plaintiff “contributory
negligence.” If the defendant fails to avoid the consequences of that
contributory negligence and so brings about the injury, which he could
and ought to have avoided, this is called “ultimate” or “resultant”
negligence. The opinion has been several times expressed, in various
forms, that “original” negligence and “ultimate” negligence are mutually
exclusive, and that conduct which has once been relied on to prove the
first cannot in any shape constitute proof of the second.

Here lies the ambiguity. If the “primary” negligent act is done and
over, if it is separated from the injury by the intervention of the
plaintiff’s own negligence, then no doubt it is not the “ultimate”
negligence in the sense of directly causing the injury. If, however, the
same conduct which constituted the primary negligence is repeated or
continued, and is the reason why the defendant does not avoid the
consequences of the plaintiff’s negligence at and after the time when
the duty to do so arises, why should it not be also the “ultimate”
negligence which makes the defendant liable?

This matter was much discussed in Brenner _v._ Toronto Ry. Co., 13 Ont.
L. R. 423, when Anglin, J., delivered a very valuable judgment in the
Divisional Court. The decision of the Divisional Court was reversed on
appeal, 15 Ont. L. R. 195, (1908) 40 Can. S. C. R. 540, but on other
grounds, and in their comments on the decision of the Divisional Court,
Duff, J., in the Supreme Court, and also Chancellor Boyd in Rice _v._
Toronto Ry. Co., (1910) 22 Ont. L. R. 446, 450, and Hunter, C. J., in
Snow _v._ Crow’s Nest Pass Coal Co., (1907) 13 B. C. Rep. 145, 155, seem
to have missed the point to which Anglin, J., had specially addressed
himself.

The facts of that case were closely similar to those in the present
appeal, and it was much relied on in argument in the court below.
Anglin, J., following the decision in Scott _v._ Dublin and Wicklow Ry.
Co., (1861) 11 Ir. C. L. Rep. 377, 394, observed as follows, 13 Ont. L.
R. 437, 439, 440: “Again, the duty of the defendants to the plaintiff,
breach of which would constitute ‘ultimate’ negligence, only arose when
her danger was or should have been apparent. Prior to that moment there
was an abstract obligation incumbent upon them to have their car
equipped with efficient emergency appliances ready and in condition to
meet the requirements of such an occasion. Had an occasion for the use
of emergency appliances not arisen, failure to fulfil that obligation
would have given rise to no cause of action. Upon the emergency arising,
that abstract obligation became a concrete duty owing to the plaintiff
to avoid the consequences of her negligence by the exercise of ordinary
care.... Up to that moment there was no such breach of duty to the
plaintiff. In that sense the failure of the defendants to avoid the
mischief, though the result of an antecedent want of care, was
negligence which occurred, in the sense of becoming operative,
immediately after the duty, in the breach of which it consisted, arose.
It effectively intervened between the negligence of the plaintiff and
the happening of the casualty. But there is a class of cases where a
situation of imminent peril has been created, either by the joint
negligence of both plaintiff and defendant, or it may be, by that of the
plaintiff alone, in which, after the danger is or should be apparent,
there is a period of time, of some perceptible duration, during which
both or either may endeavor to avert the impending catastrophe.... If,
notwithstanding the difficulties of the situation, efforts to avoid
injury duly made would have been successful, but for some self-created
incapacity which rendered such efforts inefficacious, the negligence
that produced such a state of disability is not merely part of the
inducing causes—a remote cause or a cause merely _sine qua non_—it is,
in very truth, the efficient, the proximate, the decisive cause of the
incapacity, and therefore of the mischief.... Negligence of a defendant
incapacitating him from taking due care to avoid the consequences of the
plaintiff’s negligence, may, in some cases, though anterior in point of
time to the plaintiff’s negligence, constitute ‘ultimate’ negligence,
rendering the defendant liable notwithstanding a finding of contributory
negligence of the plaintiff....”

Their Lordships are of opinion that, on the facts of the present case,
the above observations apply and are correct. Were it otherwise the
defendant company would be in a better position, when they had supplied
a bad brake but a good motorman, than when the motorman was careless but
the brake efficient. If the superintendent engineer sent out the car in
the morning with a defective brake, which, on seeing Sands, the motorman
strove to apply, they would not be liable, but if the motorman failed to
apply the brake, which, if applied, would have averted the accident,
they would be liable.

The whole law of negligence in accident cases is now very well settled,
and, beyond the difficulty of explaining it to a jury in terms of the
decided cases, its application is plain enough. Many persons are apt to
think that, in a case of contributory negligence like the present, the
injured man deserved to be hurt, but the question is not one of desert
or the lack of it, but of the cause legally responsible for the injury.
However, when once the steps are followed the jury can see what they
have to do, for the good sense of the rules is apparent. The inquiry is
a judicial inquiry. It does not always follow the historical method and
begin at the beginning. Very often it is more convenient to begin at the
end, that is at the accident, and work back along the line of events
which led up to it. The object of the inquiry is to fix upon some
wrong-doer the responsibility for the wrongful act which has caused the
damage. It is in search not merely of a causal agency but of the
responsible agent. When that has been done, it is not necessary to
pursue the matter into its origins; for judicial purposes they are
remote. Till that has been done there may be a considerable sequence of
physical events, and even of acts of responsible human beings, between
the damage done and the conduct which is tortious and is its cause. It
is surprising how many epithets eminent judges have applied to the
cause, which has to be ascertained for this judicial purpose of
determining liability, and how many more to other acts and incidents,
which for this purpose are not the cause at all. “Efficient or effective
cause,” “real cause,” “proximate cause,” “direct cause,” “decisive
cause,” “immediate cause,” “causa causans,” on the one hand, as against,
on the other, “causa sine qua non,” “occasional cause,” “remote cause,”
“contributory cause,” “inducing cause,” “condition,” and so on. No doubt
in the particular cases in which they occur they were thought to be
useful or they would not have been used, but the repetition of terms
without examination in other cases has often led to confusion, and it
might be better, after pointing out that the inquiry is an investigation
into responsibility, to be content with speaking of the cause of the
injury simply and without qualification.

In the present case their Lordships are clearly of opinion that, under
proper direction, it was for the jury to find the facts and to determine
the responsibility, and that upon the answers which they returned,
reasonably construed, the responsibility for the accident was upon the
appellants solely, because, whether Sands got in the way of the car with
or without negligence on his part, the appellants could and ought to
have avoided the consequences of that negligence, and failed to do so,
not by any combination of negligence on the part of Sands with their
own, but solely by the negligence of their servants in sending out the
car with a brake whose inefficiency operated to cause the collision at
the last moment, and in running the car at an excessive speed, which
required a perfectly efficient brake to arrest it. Their Lordships will
accordingly humbly advise His Majesty that the appeal should be
dismissed with costs.[209]


                  NEHRING _v._ THE CONNECTICUT COMPANY
               SUPREME COURT, CONNECTICUT, JULY 19, 1912.
               _Reported in 86 Connecticut Reports, 109._

PRENTICE, J. It is clear and unquestioned that there was evidence,
justifying its submission to the jury, tending to establish the
defendant’s negligence in the premises directly contributing to produce
the fatal injury which the plaintiff’s intestate suffered. The verdict
for the defendant was directed upon the ground that the plaintiff had
failed to present evidence, sufficient to go to the jury, tending to
establish the intestate’s freedom from contributory negligence.
Plaintiff’s counsel in his brief formally takes issue with this
conclusion of the court, asserting that the evidence was such as
entitled the plaintiff to go to the jury upon the question of the
intestate’s negligence. It is apparent, however, that little reliance is
placed upon this particular claim, and that the contention that the
court erred must fail unless the appeal which is made to the so-called
doctrine of “the last clear chance,” otherwise known as supervening or
intervening negligence, is well made. This appeal is urged with vigor,
so that the plaintiff’s main contention, which alone calls for serious
consideration, is that, notwithstanding the intestate’s failure to use
ordinary care, the defendant is liable through the operation of the
doctrine referred to, which, it is said, the court disregarded.

                  *       *       *       *       *

The notion appears to be more or less prevalent that this so-called
doctrine is a discovery of recent years, that it embodies a new legal
principle, and that this principle is one which invades the domain
formerly assigned to contributory negligence, and sets limitations upon
the operation of this latter doctrine so long and so deeply imbedded in
English and American jurisprudence. This is by no means true as respects
either the age or the character and scope of the principle which it
embodies. The names by which it has come to be known are indeed of
recent origin, and perhaps its present vogue and the misconception which
prevails as to its true place in the law of negligence are due in part
to its thus being given an independent status in the terminology of the
law. In fact, the principle is no modern discovery. It runs back to the
famous “Donkey Case” of Davies _v._ Mann, 10 Mees. & W. 546, decided in
1842. It was distinctly recognized by this court in 1858 in Isbell _v._
New York & N. H. R. Co., 27 Conn. 393. It was then not only recognized,
but its true place in the law was assigned to it. It was shown to be no
independent principle operating by the side of, and possibly
overstepping the bounds of, other principles, but merely a logical and
inevitable corollary of the long accepted doctrine of actionable
negligence as affected by contributory negligence. The definition of its
place, which was made in the clear-cut language of Judge Ellsworth,
inexorably forbade that it could by possibility run counter in its
application to the contributory negligence rule. This fundamental
principle we have steadily adhered to. Smith _v._ Connecticut Ry. & Ltg.
Co., 80 Conn. 268, 270, 67 Atl. 888; Elliott _v._ New York, N. H. & H.
R. Co., 83 Conn. 320, 322, 76 Atl. 298, 84 Conn. 444, 447, 80 Atl. 283.

There are, indeed, cases which give countenance to a different view upon
this latter subject. But their dicta, oftentimes, not to say generally,
uttered without an apparent comprehension of their logical consequence,
would create havoc with the law, and leave it guideless, or with two
conflicting guides. A sober second thought is, however, fast correcting
this mistake, so that there has already come to be a general concurrence
of the well-considered authorities in the view which has been taken in
this jurisdiction.

The contributory negligence rule has no practical application save in
cases where the defendant has been guilty of actionable negligence. It
proceeds upon the theory that whenever a person injured has contributed
essentially to his injury by his own negligent conduct, the law will not
give him redress, even against another who may have been directly
instrumental in producing the result. To furnish a basis for its
application there must have been a concurrence of negligent conduct.
This negligent conduct, furthermore, must have been of such a character
and so related to the result as to entitle it to be considered an
efficient or proximate cause of it. If there is a failure to use due
care on the part of either party at such a time, in such a way or in
such a relation to the result that it cannot fairly be regarded as an
efficient or proximate cause, the law will take no note of it. _Causa
proxima, non remota, spectatur._

It thus logically follows that, although a plaintiff may have failed to
exercise reasonable care in creating a condition, or in some other way,
which cannot be fairly said to have been the proximate cause of the
injuries of which he complains, the contributory negligence rule cannot
be invoked against him. The question with respect to negligent conduct
on the part of a person injured through the negligence of another, as
affecting the former’s right to recover, thus becomes resolved in every
case into one as to whether or not that conduct of his was a proximate
cause of the injury. If it was, then the contributory negligence rule is
applicable, and the plaintiff will by its operation be barred from
recovery. If it was not, that rule has no pertinence to the situation,
since there was no concurrence of negligence, without which there can be
no contributory negligence in the legal sense. It is conduct of the
latter kind—that is, conduct careless in itself, but not connected with
the injury as a proximate cause of it—to which the so-called doctrine of
“the last clear chance” relates, and that doctrine embraces within its
purview such conduct only.

This being so, it may well be questioned whether the doctrine deserves a
classification and a name as of an independent principle. But if, for
convenience sake or other reason, it is to be dignified in that way, it
is apparent that there is no manner of inconsistency between it and the
contributory-negligence rule, and that the domain of the latter rule is
in no way invaded or narrowed by a full recognition of it. It follows
that the decisive question in each case, where a plaintiff injured is
found to have been at fault in the premises from his failure to exercise
the required degree of care, resolves itself into one as to whether that
fault was or was not a proximate cause of the injury, and that the
answer to that question will infallibly determine whether or not it will
bar a recovery.

                  *       *       *       *       *

Thus far we have had the way marked out for us by the clearly defined
doctrine of former opinions. But the proposition just stated, which is
thus supported, while sufficient for the determination of many cases and
furnishing a helpful guide in most others, does not resolve all the
difficulties which may be encountered. It leaves the question open as to
when negligent conduct in a person injured in his person or property is
to be regarded as a proximate cause of the injury. How close must be the
causal connection between the negligence and the injury? It is at this
point that any real uncertainty or trouble arises under the doctrine of
this jurisdiction.

                  *       *       *       *       *

The negligence referred to in the claimed rule is, of course, that which
the law so denominates, to wit, want of due care which is a proximate
cause of harm. The proposition is not dealing with a lack of due care
which the law ignores. When it speaks of the negligence ceasing,
negligence in the legal sense is meant. It may in a given sense cease in
the sense that prudent conduct takes its place. It may for all legal
purposes cease through the relegation of it, as events progress, to the
domain of remote cause. In other words, it ceases when, and only when,
the conditions of contributory negligence disappear. The claimed test
thus solves no problems. It only brings one back, in doubtful cases, to
the inquiry whether the plaintiff’s conduct, lacking in due care, was of
such a character, or so related to the injury, that it ought to be
regarded as a proximate cause of it, as the real test which must be
applied.

The impossibility of framing any general abstract statement which will
suffice to resolve the difficulties which may be presented under varying
conditions, or to anticipate all such conditions, is apparent. We shall
undertake no such task. There are, however, certain sets of conditions,
of not infrequent occurrence, concerning which general conclusions may
be made safely and profitably.

There is, for instance, the occasional case where, after the plaintiff’s
peril, to which he has carelessly exposed himself or his property,
becomes known to the defendant, the latter introduces into the situation
a new and independent act of negligence without which there would have
been no injury. Such was the case of Smith _v._ Connecticut Ry. & Ltg.
Co., 80 Conn. 268, 270, 67 Atl. 888, and it was there held, in
accordance with sound reason, that this new negligence was to be
regarded as the sole proximate cause of the accident which ensued. The
rule for that type of case is thus furnished.

Cases of another class occasionally arise, where it is disclosed that
the plaintiff has by his lack of care placed himself in a position of
danger from which he either cannot, or cannot reasonably, escape after
the discovery of his danger. Here, again, there can be no hesitation in
saying, that if the defendant, after his discovery that the plaintiff is
in the situation described, fails to use reasonable care—and that is
care proportioned to the danger—to save him from harm, and harm results
from such failure, the defendant’s want of care will be regarded as the
sole proximate cause, and the plaintiff’s a remote cause only.

The situation just stated is not infrequently changed, in that means of
escape were open to the plaintiff by the exercise of reasonable care,
but it was apparent to the defendant, in season to have avoided the
doing of harm by the exercise of due care, that the plaintiff would not
avail himself of them. Here it is assumed that the situation of exposure
had been created and established by the plaintiff’s action before the
period of time began within which the defendant, acting reasonably,
might have saved him, and that within that period the plaintiff did
nothing to create or materially change that situation by active conduct
which was not marked by reasonable care. Under the assumption he remains
passive, in so far at least as negligent action is concerned, and can be
regarded as careless only in this that he did not awake to his
surroundings and do what he reasonably could to avoid the threatened
consequences of a situation which he had already negligently brought
about. In such cases the humane, and, to our mind, the better reason,
all things considered, leads to the conclusion to which our former
opinions, already cited, commit us, and which a large number of cases
elsewhere approve, that the want of care on the part of the plaintiff
will be regarded as a remote and not a proximate cause.

Another important variation is oftentimes introduced into the situation,
in that the plaintiff continued as an active agent in producing the
conditions under which his injury was received down to the time of its
occurrence, or at least until it was too late for the defendant, with
knowledge of his peril, to have saved him by the exercise of reasonable
care under the circumstances. This variation imports into the situation
an important factor. The plaintiff, during the period named, is not
merely passively permitting an already fixed condition to remain
unchanged. He is an actor upon the scene. He is, by acts of his
volition, bringing into the situation which confronts the defendant
changed conditions and, in the fullest sense, co-operating with the
latter in bringing about the ultimate result. In such case his conduct
must be regarded as a concurring efficient cause. It is, in the fullest
sense, a proximate and not a remote one, making his negligence
contributory.

It is said, however, that there are cases, and undoubtedly there are,
where it is reasonably apparent to the one who inflicts the injury that
the injured one is careless of his safety, and that, in continuance of
his carelessness, he is about to place himself in a position of danger,
which he subsequently does, and where the former thereafter, having a
reasonable opportunity to save him from harm, fails to do so; and it is
contended that in such cases the conduct of the injured person should be
regarded as a remote cause only of the resulting harm. We are unable to
discover any logical reason for such a conclusion, or any place at which
a practical or certain line of division can be drawn between that
careless conduct of a man, playing some part in an injury to him, which
the law will regard as having that causal connection with the injury
which makes it a proximate cause, and that careless conduct which will
not be so regarded, if the contention under consideration is to be
approved. The conduct of the man who inflicts the injury under such
general conditions may indeed be such that it is open to the charge of
wilfulness or wantonness. If so, the case is not one of negligence, and
the defense of contributory negligence would not be available. Rowen
_v._ New York, N. Y. & H. R. Co., 59 Conn. 364, 371, 21 Atl. 1073. If
the conduct is not wilful or wanton, it is negligent only. Thus treated,
it forms one factor of negligence in the situation. The plaintiff’s want
of care is another factor, and it certainly has something substantial to
do in bringing about the result reached. Upon what theory or foundation
in reason it can be said that, under the circumstances assumed, it is
not an efficient cause of that result co-operating concurrently with the
other cause to be found in the other party’s negligence, we are unable
to discover. The causal connection is plain to be seen, and the act of
causation is that of a positive act of volition. The two actors upon the
scene owe precisely the same duty to be reasonably careful. Dexter _v._
McCready, 54 Conn. 171, 174, 5 Atl. 855. Neither occupies in that regard
a superior position, and the one who suffers can claim no precedence
over his fellow actor or at the hands of the law. To say that no matter
if one be negligent in going forward into danger, or in creating new
conditions or complicating them, the law will protect him and cast upon
the other party the responsibility for the result, is to ignore the
fundamental principle of contributory negligence and bring the law upon
that subject into hopeless confusion, and merit for it the condemnation
which Thompson has so forcibly expressed. 1 Thompson on Negligence, §§
230, 233. The well-considered cases which have directly dealt with this
subject agree with us, we think, in our view that active continuing
negligence of the kind assumed is to be regarded as contributory in the
legal sense. Butler _v._ Rockland, T. & C. Street Ry. Co., 99 Me. 149,
160, 58 Atl. 775; Murphy _v._ Deane, 101 Mass. 455, 465; Dyerson _v._
Union Pacific R. Co., 74 Kan. 528, 87 Pac. 680; Little _v._ Superior
Rapid Transit Ry. Co., 88 Wis. 402, 409, 60 N. W. 705; Green _v._ Los
Angeles Terminal Ry. Co., 143 Cal. 31, 47, 76 Pac. 719; Olson _v._
Northern Pacific Ry. Co., 84 Minn. 258, 87 N. W. 843.

We have thus far dealt with cases in which actual knowledge on the part
of the defendant of the plaintiff’s peril enters into the assumption of
facts. Suppose, however, that such knowledge is not established, but
facts are shown from which it is claimed that the defendant ought in the
exercise of due care to have known of it. What shall be said of such a
situation?

In so far as imputed or constructive knowledge may be embraced in the
assumption, the simple answer is to be found in the legal principle that
full and adequate means of knowledge, present to a person when he acts,
are, under ordinary circumstances, treated as the equivalent of
knowledge. Post _v._ Clark, 35 Conn. 339, 342.

But our assumption reaches outside of the domain of knowledge, either
actual or constructive. It suggests, in the use of the phrase “ought in
the exercise of due care to have known,” frequently met with in the
books, the existence of a duty to exercise due care to acquire
knowledge, and the query is, whether the law recognizes the existence of
such a duty to the extent of making it a foundation for responsibility
for conduct akin to that which flows from conduct with actual or
constructive knowledge.

We have frequently held that the character of one’s conduct in respect
to care is to be determined in view of what he should have known as well
as of what he did in fact know. Snow _v._ Coe Brass Mfg. Co., 80 Conn.
63, 66 Atl. 881. In these cases the question has been as to one’s duty
for his own self-protection. That duty, according to established
principles, involves the making of reasonable use of one’s senses under
the penalty of forfeiture of all claim for redress in the event that
harm results. Popke _v._ New York, N. H. & H. R. Co., 81 Conn. 724, 71
Atl. 1098.

But how about a duty of acquiring knowledge, owed to others for their
safety, which, not being performed, will furnish a basis of liability?
In Elliott _v._ New York, N. H. & H. R. Co., 83 Conn. 320, 76 Atl. 298,
we recognized that such a duty might exist. That case involved the
conduct of a locomotive engineer operating his engine at a
grade-crossing, and we approved a charge which gave to the knowledge
which the engineer, under the conditions, ought, in the use of due care,
to have had, the same effect as actual knowledge. The duty imposed upon
him was one to be watchful in order that needless harm might not come to
persons who might be using the crossing, from the dangerous instrument
of his calling. The duty was one toward others, which the circumstances
and conditions must be regarded as fairly creating. For a like reason a
similar duty rests upon other persons and under other conditions, in
greater or lesser measure. Whether it exists, and the extent of it,
depends upon the circumstances of each situation. A circumstance of
chief significance, perhaps, is one which concerns the character of that
about which the person is engaged in respect to its being calculated,
under the conditions, to work injury to others. And so it is that a
locomotive engineer, a motorman of a trolley-car running in a highway,
or a chauffeur driving an automobile, is under a duty to be watchful for
the protection of others which another man under other conditions would
not owe to his fellows. Unreasonableness in one’s conduct, as a
foundation for responsibility to others, cannot justly be established
upon the basis of knowledge not possessed. It can with propriety be
predicated upon negligence in not having acquired more knowledge.
Negligence in this respect, as in all others, implies the existence of a
duty to make use of means of knowledge. This duty must be found in the
circumstances, and caution must be exercised in order that it, with its
consequences, be not raised where the circumstances do not fairly impose
it, or be extended beyond the limits which the circumstances fairly
justify.[210]

GEORGE W. WHEELER, J. (dissenting). Just prior to the accident the
defendant’s car was being negligently operated. Assuming the decedent
walked either diagonally toward and upon the track, or close to it,
without using his senses to learn of the approaching car, and that there
was no excuse for his failure, he was negligent. If the accident
occurred while decedent and defendant were negligent and decedent’s
negligence was a proximate cause of the accident, and there was nothing
more to the case, there could be no recovery. But if the defendant’s
motorman saw, or could by the exercise of reasonable care have seen, the
decedent either approaching the track and about to place himself in
danger, or walking so near the track as to be in danger, apparently
heedless and unconscious of his peril, he owed to the deceased the duty
of warning him and of observing such precautions as might avoid running
into him. This was the case before the jury. We hold knowledge and the
means of knowledge of one having a duty to know equivalent. Elliott _v._
New York, N. H. & H. R. Co., 83 Conn. 320, 76 Atl. 298. This duty
originated after the negligence of the motorman and of the deceased, and
after the latter’s peril and his unconsciousness of it might have been
discovered by the motorman. If its performance would have avoided the
injury to the deceased, its breach was the proximate cause of the
accident, and his negligence in placing himself in the place of peril a
condition, or the remote cause, of it. Of course, if he had not gone
upon the track he would not have been injured; if he was negligent in
going upon the track without using his senses, that was not the
proximate cause of the accident, but the failure of the defendant to
avoid the accident after it had the opportunity of avoidance and after
it knew of the decedent’s peril and his unconsciousness of it.

In each case of discovered peril caused by one’s negligence the question
is, did the defendant have the opportunity after such discovery, and was
it his duty, to have avoided the accident? Whether the conduct of the
motorman was gross negligence, or ordinary negligence, the breach of
duty was the same in kind, though differing in degree. If one walks upon
a railway track drunk, or in a reverie, or otherwise careless; or if one
stands or lies on or so near the railway track as to be in danger and
unconscious of it; or if one is in a position of peril through his own
negligence from which he is unable to extricate himself, the person
knowing or having the means and the duty to know of his presence owes
him the duty of avoiding injuring him. One who is negligently in a
position of danger and unconscious of it is in no different situation
than if he were incapable of extricating himself from his peril.

The few authorities which hold the antecedent negligence of the deceased
in getting into peril is concurrent with the defendant’s negligence so
as to bar a recovery, make meaningless the rule of duty compelling the
defendant to use reasonable care to avoid the accident after discovery
of the peril. A legal duty without a corresponding obligation is an
anomaly. When we relieve the motorman of liability for failure to avoid
an accident, he may operate his car at a negligent speed, without having
it under control, without keeping an outlook, without giving warning of
approach, and neither having nor using the ordinary instrumentalities of
equipment for avoiding injury to travellers, and so long as his conduct
is not gross negligence it carries with it no liability.

The opinion of the court classifies in five groups the several kinds of
cases which have been thought to be within the “last clear chance”
doctrine. In group one, the defendant, instead of doing his duty, does
something which is a new act of negligence. In group two, the peril is
one from which the plaintiff cannot, or cannot reasonably, extricate
himself. Each group supports a recovery. In group three, means of escape
were open to the plaintiff down to the accident, but he remained
unconscious of his peril. The opinion holds that if the plaintiff
remains passive after exposing himself to peril and does nothing to
materially change that condition, there may be a recovery. But in group
four, assuming the same facts as in group three, the court holds that if
the plaintiff after exposing himself to peril, instead of permitting the
fixed condition to remain unchanged continues as an active agent in
producing the conditions under which the injury was received down to its
occurrence, or until it was too late for the defendant to avoid the
accident, there can be no recovery. In group five, the defendant knows,
or ought to know, that the injured one is careless and is about to
expose himself to danger of which he is unconscious, and after such
knowledge has the opportunity to avoid injury to him, and in such case
the court holds there can be no recovery.

We have attempted to show that the breach of duty of the defendant in
each of these several groups is the same, and was a new act of
negligence of the defendant, viz.: the failure of the defendant to avoid
injuring the plaintiff after he knew of his peril when he was either
unconscious of it or incapable of extricating himself from it, and that
this breach was the proximate cause of the accident while the
plaintiff’s prior negligence was the remote cause.

The distinction between active and passive negligence made in groups
three and four, is new to our law, as well as to the law of negligence
generally prevailing in this country and in England. On analysis it does
not seem logical. A is crossing a trolley track when hailed by a friend;
he stops upon the track to talk and negligently fails to use his senses
to discover an approaching car. The motorman could have seen A in his
place of peril, unconscious of his danger, and in time, with the
exercise of reasonable care to have avoided injuring him; instead he
drives on his car and kills A. The opinion would hold A negligent in
being upon the track without using his senses to keep out of the way of
the oncoming car, but that as he remained passive and did nothing to
change his situation of peril after the motorman had the opportunity to
have avoided the accident, he may recover. But if A, instead of stopping
on the track had gone on his way across or upon the track and been
struck, his negligence would have been active and continued to the
accident and would have been concurrent with that of the motorman. It
must be conceded that the breach of the motorman’s duty would have been
the same in each case: a failure to use reasonable care to avoid the
accident. We see no reason why it should be available in the one case
and not in the other. In neither case has the plaintiff’s negligence
changed. It never became passive or nonexistent. It remained to the time
of the accident. It ceased, in a legal sense, to be a proximate cause of
the accident. A was relieved of its consequences because the negligence
of the motorman in failing to avoid the accident intervened and became
its proximate cause. If this distinction holds, and A be upon a trolley
track intoxicated and asleep, his negligence is passive; if awake and
walking his negligence is active.[211]


                  GAHAGAN _v._ BOSTON & MAINE RAILROAD
             SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1900.
              _Reported in 70 New Hampshire Reports, 441._

Plaintiff was struck by a train while attempting to use a crossing
provided by the Railroad Company for persons having business with a
manufacturing company. From a point twenty-two feet from the nearest
rails there was an unobstructed view of the track in the direction from
which the train came. The accident happened near noon on a bright and
clear day. Generally the engine bell was rung, while the whistle was
sometimes sounded, for this crossing. Plaintiff knew it was usual to
ring the bell. In this instance a danger whistle was sounded at, or
immediately before, the time when plaintiff was struck; but there was
evidence tending to prove that no other warning of the approach of the
train was given. Plaintiff testified that he did not look or listen for
an approaching train; and that he did not look because he expected to
hear the bell or whistle if one was coming. The engineer testified that,
when about one hundred and fifty to two hundred feet from the crossing,
he saw plaintiff approaching the track; and that he kept watch of
plaintiff until he got within a few feet of the track, when he
whistled.[212]

A nonsuit was ordered, subject to exception.

PARSONS, J.... It is urged that the plaintiff relied upon the ringing of
the bell, and that the failure to give the warning signals (of which
there was some evidence which must here be taken to be true) excused him
from the exercise of vigilance. Though the plaintiff testified that he
did not look to see if a train was approaching because he expected to
hear the whistle or bell if there was, it cannot be claimed that he was
consciously at the time placing any reliance thereon, for he further
testifies that he had no thought of a train coming and did not listen
for the bell. As his counsel state in their brief, “There was no
positive effort, no conscious ‘harking’ or ‘listening’ to ascertain if
the train was coming.” But assuming that it might be found as a fact
that he did rely on the awakening of his consciousness by the
performance of the railroad’s duty of warning, the failure of the
defendants to perform their duty did not release him from his. The
obligation to use care was equally imposed upon each. If the defendants’
negligence excused the plaintiff from his duty of care, the plaintiff’s
negligence with equal reason would excuse the defendants. If the
plaintiff had the right to assume the defendants would perform their
duty, and, relying thereon, approach the crossing without exercising
care, the defendants had the right to assume that the plaintiff would
perform his duty, and omit the warning of bell and whistle. The duty of
care rested on each equally. If neither performed that duty both are in
fault, and neither can recover of the other. The collision in this case
resulted, it may be, because neither party performed their duty. If
either had, there might and probably would have been no accident. The
rights and liabilities of the parties consequent upon their acts
resulting in the collision are not affected by the fact that
subsequently one is plaintiff and the other defendant in a suit growing
out of the collision. Their several responsibility is fixed at the time
by their acts or failure to act. A suit by the engineer against Gahagan
for personal injury resulting from the collision would present precisely
the same legal question as that we now have. It would hardly be urged
that the engineer was not guilty of contributory negligence in failing
to ring the bell because he relied upon Gahagan’s performance of his
duty of stopping and allowing the train to go by. The negligence of
neither is an excuse for concurrent want of care in the other, because
for an injury resulting from the concurrent negligence of both neither
can recover. Nashua Iron and Steel Co. _v._ Railroad, 62 N. H. 159, 163.

The rule is laid down in Railroad Co. _v._ Houston, 95 U. S. 697, 702,
also a crossing case, as follows: “The failure of the engineer to sound
the whistle or ring the bell, if such were the fact, did not relieve the
deceased from the necessity of taking ordinary precautions for her
safety. Negligence of the company’s employees in these particulars was
no excuse for negligence on her part.”

                  *       *       *       *       *

It is not claimed that after the plaintiff stepped upon the track almost
immediately in front of the approaching train the defendants could have
prevented the injury, or that the employees in charge of the train, when
the danger thus became imminent, did not do all that could be done to
prevent the collision. At any time before this the plaintiff could have
avoided the collision. There was no moment when the defendants could,
while the plaintiff could not, have prevented the injury. The
plaintiff’s act in stepping upon the track, without precaution to
ascertain whether he could safely do so, was the last act in point of
time in the causation producing the injury. As there was no evidence
upon which it could reasonably be found that the plaintiff’s action in
this respect was the exercise of care, he cannot recover unless upon the
evidence some negligent act or omission of the defendants’ employees
could be found to be the sole proximate cause of the injury.

                  *       *       *       *       *

The plaintiff’s negligent occupation of the track did not authorize the
defendants to run upon and injure him, if by care they could have
avoided it. Ordinarily, the negligent act or omission which fails to
avoid the consequences of the plaintiff’s negligence is the last act in
time in the series leading to the injury. Such was the case in the cases
cited; the negligent occupation of the track by the plaintiffs preceded
the negligence of the defendants in failing to observe and guard against
the danger so produced. But as ordinary care may require vigilance to
guard against a dangerous situation reasonably to be apprehended, as
well as actually imminent, it cannot always follow that the last
negligent act in point of time is necessarily the proximate cause of the
injury. If the engineer knew or ought to have known that the plaintiff’s
negligence would place him upon the crossing when the train reached it,
the engineer was equally bound to avoid the collision as if he saw the
plaintiff actually on the track. The question is one of evidence merely.
The mere fact that the person when first seen is on the track is not
decisive. If a person on foot is seen crossing the track at such
distance ahead that it could not reasonably be apprehended that the
train would reach him in this position, the engineer would not be in
fault for not preparing to avoid a danger not reasonably to be expected.
In the present case there is evidence that when the plaintiff was first
seen by the engineer the collision could have been prevented. If the
engineer knew or ought to have known then that the plaintiff would be
upon the crossing when the train reached it, and could have avoided the
collision, his failure to do so is the proximate cause of the injury.

As there was evidence the collision might then have been prevented by
him, the sole remaining question is whether upon the evidence reasonable
men might find the engineer ought then to have foreseen the plaintiff’s
negligence. The bare fact that the plaintiff was seen approaching the
track is not sufficient to authorize such a finding. If it were, the
rule heretofore laid down and found to be approved by the authorities
and the reason of the case, that it is the duty of the highway traveller
to stop and allow the train to pass, would be reversed. It would become
the duty of the train to stop and wait for the person on foot to go by.
This would be unreasonable, impracticable, and put an end to the modern
system of rapid transportation demanded by the public, and to effectuate
which railroads are authorized by the state.

“The company’s servants may ordinarily presume that a person apparently
of full age and capacity, who is walking on the track at some distance
before the engine, will leave it in time to save himself from harm; or
if approaching the track, that he will stop if it becomes dangerous for
him to cross it. This presumption will not be justified under some
circumstances, as when the person who is on the track appears to be
intoxicated, asleep, or otherwise off his guard.” Pierce R. R. 331; 2
Shearm. & Red. Neg. _s._ 483; Chicago, etc. R. R. _v._ Lee, 68 Ill. 576,
581; Terre Haute, etc. R. R. _v._ Graham, 46 Ind. 239, 245; Lake Shore,
etc. R. R. _v._ Miller, 25 Mich. 274, 278, 280; Boyd _v._ Railway, 105
Mo. 371, 381, 382. The presumption is founded upon the general principle
of right acting and the instinct of self-preservation. Huntress _v._
Railroad, 66 N. H. 185; Lyman _v._ Railroad, 66 N. H. 200; 2 Thomp. Neg.
1601.

The case discloses no evidence apparent to the engineer taking the
present case out of the rule.

                  *       *       *       *       *

Aside from the plaintiff’s own statement and the fact of the subsequent
collision, the case contains no evidence that the plaintiff, when seen
by the engineer approaching the crossing, was not alert to the
situation, or tending to produce a belief that he would voluntarily rush
into danger without care. Until he stepped upon the track his only
danger consisted in the fact of his mental obliviousness to his duty of
taking care. So defining his danger, the claim of his counsel, that if
the engineer knew the plaintiff’s danger he could have avoided the
injury and is in fault for not doing so, is sound; but to submit to the
jury the question of fact whether the engineer ought to have known the
_status_ of the plaintiff’s mind in season to have prevented the
accident, not only in the absence of evidentiary facts tending to prove
such knowledge but in the face of all the facts open only to a contrary
inference, would be a violation of the familiar and elementary rule that
in judicial trials facts are to be found upon evidence, not conjecture.
Deschenes _v._ Railroad, 69 N. H. 285.

The evidence upon which counsel mainly rely, tending to show that when
seen by the engineer Gahagan’s face was not turned toward the train and
that his appearance did not indicate whether he saw the train or not,
does not tend to establish that he proposed to rush carelessly into
known danger, or that he would go upon the track without care to
ascertain if a train was approaching. That Gahagan knew the crossing,
its danger, and his approach to it, was conceded. Hence, in the face of
this admitted fact, although this evidence may have some tendency to
prove the contrary, the jury could not find that Gahagan did not know he
was approaching a place of danger, or that the engineer ought to have
inferred a fact which it is conceded did not exist. As there is no
evidence that the defendants ought to have known the plaintiff’s danger
in season to have avoided the results of his negligence, they cannot be
found guilty of negligence for not doing so.

                  *       *       *       *       *

                                                 _Exceptions overruled._


          KEITH, P., IN NORFOLK & W. R. CO. _v._ DEAN’S ADM’X
               (1907) _107 Virginia, 505, 506, 507, 513._

  KEITH, P. The Circuit Court ... rests the case solely upon the second
  count in the declaration, in which the case presented is that, after
  it became apparent to the crew in charge of defendant company’s train
  that intestate of plaintiff was on the track in front of the engine,
  that he was unconscious of his danger, and would take no measures to
  protect himself, the crew failed to use any measure to prevent the
  accident. Such being the issue to be determined, it is needless to
  consider so much of the evidence as relates to the use of the track as
  a public passway, or as to whether or not the person injured was a
  licensee or a trespasser. He was a human being, and when his dangerous
  position was seen and known, and that he himself was unconscious of
  his peril, and would take no measures for his own protection, it
  became the duty of the railroad company to do all that could be done
  consistent with its higher duties to others to save him from the
  consequences of his own act, regardless of whether he was guilty of
  contributory negligence or not. Seaboard & Roanoke R. Co. _v._
  Joyner’s Adm’r, 92 Va. 355, 23 S. E. 773.

  This being the narrow issue to be decided, it becomes necessary to
  consider the evidence bearing upon it with care....

  [The learned judge then considered the testimony. He found that there
  was no failure of duty on the part of the train men; and he _held_
  that the demurrer to the evidence should have been sustained. He
  quoted, with approval, the following statements of the law.]

  In N. & W. Ry. Co. _v._ Harman, 83 Va. 577, 8 S. E. 258, it is said
  that “if a person seen upon the track is an adult, and apparently in
  the possession of his or her faculties, the company has a right to
  presume that he will exercise his senses and remove himself from his
  dangerous position; and if he fails to do so, and is injured, the
  fault is his own, and there is, in the absence of wilful negligence on
  its part, no remedy against the company for the results of an injury
  brought upon him by his own recklessness.”

                  *       *       *       *       *

  In Rangeley _v._ Southern Ry. Co., 95 Va. 715, 30 S. E. 386, it is
  said that a railroad company has the right to assume that a grown
  person seen on its track will get out of the way of an approaching
  train, and the company is not liable unless it is shown that after the
  company, in the exercise of ordinary care, could have discovered that
  he was not going to get off the track, it could have avoided the
  injury.


  O’KEEFE, ADM’X, _v._ CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY
                 SUPREME COURT, IOWA, OCTOBER 21, 1871.
                  _Reported in 32 Iowa Reports, 467._

Appeal from Polk District Court.

Action by an administratrix to recover damages for the death of her
husband, Dennis O’Keefe, alleged to have been killed by being run over
on the defendant’s road, through the negligence of the defendant’s
agents and employees. Defence in denial, and also that the death was
caused by the drunkenness and negligence of the plaintiff’s intestate.
There was a jury trial, resulting in a verdict and judgment for
plaintiff for $1000. The defendant appeals.

COLE, J. [Omitting statement of evidence.] After the evidence was
closed, the defendant asked the court to instruct the jury as follows:
“If you are satisfied from the evidence that Dennis O’Keefe, plaintiff’s
intestate, was, a short time before the alleged injury, in a state of
intoxication; that in such condition he went upon defendant’s railroad
and laid himself down upon the track, or fell down unable to support
himself because of such intoxication; that remaining in that condition a
passing train crushed one of his legs; that after the injury he was yet
under the influence of intoxicating liquors drank before the injury;
that the injured limb was amputated and death ensued, you will find for
the defendant, unless you further find from a preponderance of the
evidence that defendant or its agents had knowledge that he was thus
lying in time to prevent the accident,” to which the court added, and
then gave it, “_or, could have known with the exercise of ordinary
caution_.” This modification was excepted to at the time, and is now
assigned as error.

The well-established law of this state is, that in an action to recover
damages for the negligent act of the defendant, the plaintiff will not
be entitled to recover if his own negligence contributed directly to the
injury. In other words, this court recognizes and applies the doctrine
of “contributory negligence,” and not the doctrine of “comparative
negligence.” The latter doctrine obtains only in Illinois and Georgia,
while the former obtains in the other states, and also in the Federal
courts. The modification complained of ignored the doctrine of
contributory negligence, and substantially told the jury that plaintiff
might recover without regard to his negligence, if the defendant could
have prevented the injury with the exercise of ordinary caution. The
doctrine of the modification goes even farther than that of comparative
negligence; for, by the latter, a plaintiff can only recover when he
shows the defendant’s negligence to have been greater, by comparison,
than his, while by the modification the plaintiff might recover if the
defendant did not exercise ordinary caution, although the plaintiff’s
intestate may have been guilty of a much greater negligence in laying
himself down, in a condition of intoxication, near to or upon the track.
A similar modification was made to the second instruction. In each there
was error.

                                                             _Reversed._


           PICKETT _v._ WILMINGTON & WELDON RAILROAD COMPANY
          SUPREME COURT, NORTH CAROLINA, SEPTEMBER TERM, 1895.
             _Reported in 117 North Carolina Reports, 616._

  AVERY, J.[213] The most important question presented by the appeal is
  whether the court erred in refusing to instruct the jury that if the
  plaintiff’s intestate deliberately laid down upon the track and either
  carelessly or intentionally fell asleep there, the defendant was not
  liable, unless the engineer actually saw that he was lying there in
  time, by the reasonable use of appliances at his command, to have
  stopped the train before it reached him.

                  *       *       *       *       *

  In Gunter _v._ Wicker, 85 N. C. 310, this court gave its sanction to
  the principle first distinctly formulated in Davies _v._ Mann, 10 M. &
  W. (Ex.) 545, that “Notwithstanding the previous negligence of the
  plaintiff, if at the time the injury was done it might have been
  avoided by the exercise of reasonable care and prudence on the part of
  the defendant, an action will lie for damages.” This doctrine was
  subsequently approved in Saulter _v._ Steamship Co., 88 N. C. 123;
  Turrentine _v._ Railroad, 92 N. C. 638; Meredith _v._ Iron Co., 99 N.
  C. 576; Roberts _v._ Railroad, 88 N. C. 560; Farmer _v._ Railroad,
  _Ibid._ 564; Bullock _v._ Railroad, 105 N. C. 180; Wilson _v._
  Railroad, 90 N. C. 69; Snowden _v._ Railroad, 95 N. C. 93; Carlton
  _v._ Railroad, 104 N. C. 365; Randall _v._ Railroad, 104 N. C. 108;
  Bullock _v._ Railroad, 105 N. C. 180, and it was repeatedly declared
  in those cases that it was negligence on the part of the engineer of a
  railway company to fail to exercise reasonable care in keeping a
  lookout not only for stock and obstructions but for apparently
  helpless or infirm human beings on the track, and that the failure to
  do so supervening after the negligence of another, where persons or
  animals were exposed to danger, would be deemed the proximate cause of
  any resulting injury.

                  *       *       *       *       *

  [As to argument for defendant.] But the reasons and the authorities
  relied upon emanate generally from courts which hold that both persons
  and animals upon a track are trespassers and entitled to consideration
  only where actually seen in time to save them....

  It cannot be denied that, in a number of the states which have adopted
  the doctrine of Davies _v._ Mann, it has also been held that both man
  and beast were trespassers when they went upon a railway track and
  except at public crossings or in towns it was not the duty of the
  engineer to exercise care in looking to his front with a view to the
  protection of either. Where the law does not impose the duty of
  watchfulness it follows that the failure to watch is not an omission,
  of duty intervening between the negligence of the plaintiff in
  exposing himself and the accident, unless he be actually seen in time
  to avert it. The negligence of the corporation grows out of omission
  of a legal duty and there can be no omission where there is no duty
  prescribed.

                  *       *       *       *       *

  We are of opinion that, when by the exercise of ordinary care an
  engineer can see that a human being is lying apparently helpless from
  any cause on the track in front of his engine in time to stop the
  train by the use of the appliances at his command and without peril to
  the safety of persons on the train, the company is liable for any
  injury resulting from his failure to perform his duty. If it is the
  settled law of North Carolina (as we have shown) that it is the duty
  of an engineer on a moving train to maintain a reasonably vigilant
  outlook along the track in his front, then the failure to do so is an
  omission of a legal duty. If by the performance of that duty an
  accident might have been averted, notwithstanding the previous
  negligence of another, then, under the doctrine of Davies _v._ Mann,
  and Gunter _v._ Wicker,[214] the breach of duty was the proximate
  cause of any injury growing out of such accident, and where it is a
  proximate cause the company is liable to respond in damages. Having
  adopted the principle that one whose duty it is to see does see, we
  must follow it to its logical results. The court committed no error of
  which the defendant could justly complain in stating the general rule
  which we have been discussing.

                  *       *       *       *       *


              DYERSON _v._ UNION PACIFIC RAILROAD COMPANY
               SUPREME COURT, KANSAS, NOVEMBER 10, 1906.
                 _Reported in 74 Kansas Reports, 528._

  Plaintiff sued for damages caused by being struck by the tender of an
  engine.

  Plaintiff, an employee of the R. R. Co., had occasion to cross the
  track. As he was about to step upon the track, he was struck by the
  tender of a locomotive which was backing east at the rate of fifteen
  or twenty miles an hour without giving a signal of its approach and
  without keeping a lookout along the track. The track was straight for
  a quarter of a mile west. It was a clear day, and there was nothing to
  have prevented the plaintiff from seeing the engine and tender if he
  had looked.[215]

  At the trial, the court rendered judgment against plaintiff upon his
  petition and preliminary statement to the jury which disclosed the
  above facts. Plaintiff brought error.

  MASON, J.

                  *       *       *       *       *

  Finally it is contended in behalf of the plaintiff that, even
  admitting his own want of care to have been such as would ordinarily
  bar a recovery, still he had a right to submit to the jury the
  question whether the employees in charge of the engine by the use of
  reasonable diligence could have discovered his negligence in time to
  avert the accident, and that an affirmative answer would have entitled
  him to a verdict.

                  *       *       *       *       *

  In a number of cases it has been held that if the engineer by the
  exercise of reasonable diligence could have learned that danger was
  imminent but did not do so, the liability of the company will be
  determined in all respects as though he had in fact become aware of
  it, the constructive knowledge being apparently deemed the equivalent
  of actual knowledge. It is difficult or impossible to reconcile the
  decisions upon this and related questions, or to derive from them any
  generally accepted statement either of principle or result. Many of
  them are collected and discussed in chapter ix of volume i of
  Thompson’s Commentaries on the Law of Negligence, especially in
  sections 222 to 247.

  There seems, however, to be no sufficient reason why the mere fact
  that a defendant is negligent in failing to discover a plaintiff’s
  negligence, or his danger, should in and of itself exclude all
  consideration of contributory negligence. Take the not unusual
  situation of a train being negligently operated, let us say by being
  run at too high a speed and without proper signals of warning being
  given. Now, any one injured as a result of such negligence has _prima
  facie_ a right to recover. But, if his own negligence has contributed
  to his injury, then ordinarily his right is barred. How is the
  situation altered if the railroad employees add to their negligence in
  regard to speed and signals the negligence of failing to keep a
  sufficient lookout? The negligence is of the same sort; and, if the
  contributory negligence of the person injured prevents a recovery when
  but the two elements of negligence are present, consistency requires
  that it should have the same effect although a third element is added.
  If in the present case the plaintiff was entitled to recover in spite
  of his own negligence it must be because the order of its occurrence
  with respect to that of the defendant made the latter the proximate
  cause of the injury. This indeed is his contention, and to support it
  reliance is placed upon the following text, which was quoted with
  approval in Railway Co. _v._ Arnold, 67 Kan. 260, 72 Pac. 857, and the
  substance of which is to be found also in volume xx of the American
  and English Encyclopædia of Law, at page 137:—

  “And upon the principle that one will be charged with notice of that
  which by ordinary care he might have known, it is held that if either
  party to an action involving the questions of negligence and
  contributory negligence should, by the exercise of ordinary care, have
  discovered the negligence of the other, after its occurrence, in time
  to foresee and avoid its consequences, then such party is held to have
  notice; and his negligence in not discovering the negligence of the
  other, under such circumstances, is held the sole proximate cause of a
  following injury.” (7 A. & E. Encycl. of L. 387.)

  This may be accepted as a correct statement of a principle of
  universal application, according with both reason and authority,
  provided the words “after its occurrence” be interpreted to mean after
  the person concerned had ceased to be negligent. The rule that under
  the circumstances stated the neglect of one party to discover the
  omission of the other is to be held to be the sole proximate cause of
  a resulting injury is not an arbitrary but a reasonable one. The test
  is, What wrongful conduct occasioning an injury was in operation at
  the very moment it occurred or became inevitable? If just before that
  climax only one party had the power to prevent the catastrophe, and he
  neglected to use it, the legal responsibility is his alone. If,
  however, each had such power, and each neglected to use it, then their
  negligence was concurrent and neither can recover against the other.
  As is said in the paragraph from which the foregoing quotation is
  made, “it is only when the negligence of one party is subsequent to
  that of the other that the rule can be invoked.” In a note printed in
  volume ii of the supplement to the American and English Encyclopædia
  of Law, at page 64, many recent cases are cited bearing on the
  subject, and it is said:—

  “This so-called exception to the rule of contributory negligence (_i.
  e._, the doctrine of ‘the last clear chance’) will not be extended to
  cases where the plaintiff’s own negligence extended up to and actually
  contributed to the injury. To warrant its application there must have
  been some new breach of duty on the part of the defendant subsequent
  to the plaintiff’s negligence.”

  In the present case it may be granted that the negligence of the
  plaintiff began when he walked between the track and the ice-box on
  the way to get the bucket, and that the employees in charge of the
  engine were themselves negligent in not discovering this negligence on
  his part and the peril to which it exposed him, and taking steps to
  protect him. But his negligence as well as theirs continued up to the
  moment of the accident, or until it could not possibly be averted. His
  opportunity to discover and avoid the danger was at least as good as
  theirs. His want of care existing as late as theirs was a concurring
  cause of his injury, and bars his recovery. This determination is
  entirely consistent with what Mr. Thompson in his work above cited has
  styled the “last clear chance” doctrine, as is obvious from a
  consideration of the terms in which it is stated. As originally
  announced it was thus phrased:—

  “The party who has the last opportunity of avoiding accident is not
  excused by the negligence of any one else. His negligence, and not
  that of the one first in fault, is the sole proximate cause of the
  injury.” (1 Shear. & Red. Law of Neg., 5th ed., § 99.)

  Mr. Thompson rewords it as follows:—

  “Where both parties are negligent, the one that had the last clear
  opportunity to avoid the accident, notwithstanding the negligence of
  the other, is solely responsible for it—his negligence being deemed
  the direct and proximate cause of it.” (1 Thomp. Com. Law Neg. § 240.)

  Expressions are to be found in the reports seemingly at variance with
  the conclusion here reached, but for the most part the decisions
  holding a defendant liable for failure to discover and act upon the
  plaintiff’s negligence were made in cases which were in fact like
  Railway Co. _v._ Arnold, 67 Kan. 260, 72 Pac. 857, or were decided
  upon the theory that they fell within the same rule. There the
  plaintiff’s decedent while riding a bicycle was through his own fault
  run into by a street car; he clung to the fender, was carried some
  seventy-five feet, then fell under the wheels, and was killed. A
  judgment against the street-car company was upheld only upon the
  theory that after he had reached a position of danger from which he
  could not extricate himself—that is, after his negligence had
  ceased—the defendant’s employees were negligent in failing to discover
  his peril and stop the car.

  In Robinson _v._ Cone, 22 Vt. 213, 54 Am. Dec. 67, the writer of the
  opinion said:—

  “I should hesitate to say that if it appeared that the want of
  ordinary care on the part of the plaintiff, _at the very time of the
  injury_, contributed either to produce or to enhance the injury, he
  could recover; because it seems to me that is equivalent to saying
  that the plaintiff, by the exercise of ordinary care at the time,
  could have escaped the injury.” (Page 223.)

  The principle thus intimated was embodied in a decision in French _v._
  The Grand Trunk Railway Co., 76 Vt. 441, 58 Atl. 722, where it was
  said:—

  “It is true that when a traveller has reached a point where he cannot
  help himself, cannot extricate himself, and vigilance on his part will
  not avert the injury, his negligence in reaching that position becomes
  the condition and not the proximate cause of the injury, and will not
  preclude a recovery; but it is equally true that if a traveller, when
  he reaches the point of collision, is in a situation to help himself,
  and by a vigilant use of his eyes, ears, and physical strength to
  extricate himself and avoid injury, his negligence at that point will
  prevent a recovery, notwithstanding the fact that the trainmen could
  have stopped the train in season to have avoided injuring him. In such
  a case the negligence of the plaintiff is concurrent with the
  negligence of the defendant, and the negligence of each is operative
  at the time of the accident. When negligence is concurrent and
  operative at the time of the collision, and contributes to it, there
  can be no recovery.” (Page 447.)

  To the same effect are these extracts:—

                  *       *       *       *       *

  [As to the rule holding the defendant liable notwithstanding the
  contributory negligence of the plaintiff.]

  Of the same rule it was said in O’Brien _v._ McGlinchy, 68 Me. 552:

  “This rule applies usually in cases where the plaintiff or his
  property is in some position of danger from a threatened contact with
  some agency under the control of the defendant when the plaintiff
  cannot and the defendant can prevent an injury.... But this principle
  would not govern where both parties are contemporaneously and actively
  in fault, and by their mutual carelessness an injury ensues to one or
  both of them.” (Pages 557, 558.)

  In Smith _v._ Railroad, 114 N. C. 728, 19 S. E. 863, 25 L. R. A. 287,
  the general rule was thus concretely stated:—

  “Applying the rule which we have stated to accidents upon railroad
  tracks, it may be illustrated as follows: First, there must be a duty
  imposed upon the engineer, as otherwise there can be no negligence to
  which the negligence of the injured party is to contribute. The duty
  under consideration is to keep a vigilant lookout ... in order to
  discover and avoid injury to persons who may be on the track and who
  are apparently in unconscious or helpless peril. When such a person is
  on the track and the engineer fails to discover him in time to avoid a
  collision, when he could have done so by the exercise of ordinary
  care, the engineer is guilty of negligence. The decisive negligence of
  the engineer is when he has reached that point when no effort on his
  part can avert the collision. Hence, if A, being on the track and
  after this decisive negligence, fails to look and listen and is in
  consequence run over and injured, his negligence is not concurrent
  merely but really subsequent to that of the engineer, and he cannot
  recover, as he and not the engineer has ‘the last clear opportunity of
  avoiding the accident.’ If, however, A is on the track ... and while
  there, and before the decisive negligence of the engineer, he by his
  own negligence becomes so entangled in the rails that he cannot
  extricate himself in time to avoid the collision, and his helpless
  condition could have been discovered had the engineer exercised
  ordinary care, then the negligence of A would be previous to that of
  the engineer, and the engineer’s negligence would be the proximate
  cause, he, and not A, having the last clear opportunity of avoiding
  the injury. The same result would follow in the case of a wagon
  negligently stalled, when no effort of the owner could remove it, and
  there are other cases to which the principle is applicable.” (Pages
  755, 756.)

  The principle running through these cases is reasonable and is
  consistent with the general rules that have met with practically
  universal acceptance. Applied to the facts of this case it requires an
  affirmance of the judgment.

  All the Justices concurring.


                BAKER, J., IN CLEVELAND R. CO. _v._ KLEE
                  (1900) _154 Indiana, 430, 434, 435._

  BAKER, J. It is alleged in the fifth paragraph: “That on or about the
  22d day of June, 1894, this plaintiff, a child nine years of age, was
  on the said crossing of Georgia and Helen streets and upon said track
  of said defendant in said Georgia Street; and while in said position
  and place, the defendant through and by its said employees and
  servants, ran said locomotive against this plaintiff and negligently
  dragged this plaintiff without fault or negligence on his part, a long
  distance, to wit, two hundred feet; that the defendant knew that it
  had run its locomotive against this plaintiff at said crossing; and
  knew that it had knocked this plaintiff down in front of its said
  locomotive upon its said track; and knew that this plaintiff was
  dragging in front of said locomotive on said track; but that this
  defendant negligently failed to stop said locomotive before this
  plaintiff was injured, although by the exercise of due care and
  caution it could have stopped said locomotive before this plaintiff
  was injured; but negligently dragged this plaintiff as aforesaid,
  without fault or negligence on the part of this plaintiff, and
  negligently injured this plaintiff in his body, back, and limbs.” The
  injury for which compensation is sought in this paragraph was not
  sustained in the collision at the crossing, but was wholly inflicted
  after appellant knew that appellee was being dragged along the track
  in front of the engine. By the exercise of due care appellant could
  have stopped the engine before appellee was injured, but failed to do
  so. Appellee, after being struck and while being dragged along the
  track, was free from fault contributing to his injury. These
  allegations constitute a cause of action. Though the paragraph
  confesses, by not denying, that appellee was guilty of negligence in
  being upon the track, that negligence was only the remote condition,
  not the proximate cause, of the injury complained of; for the injury
  resulted, after the collision, entirely from occurrences in which it
  is alleged that appellant was negligent and appellee was not.


              HOLMES _v._ MISSOURI PACIFIC RAILWAY COMPANY
              SUPREME COURT, MISSOURI, NOVEMBER 27, 1907.
                _Reported in 207 Missouri Reports, 149._

  Action by C. W. Holmes and wife to recover for the death of their
  child, F. G. Holmes. The child, eight years old, was struck and killed
  by a locomotive engine at the crossing of an avenue. Two points in
  conflict were, whether defendant was negligent, and whether the child
  was contributorily negligent.

  The following instruction was given at plaintiff’s request: “(4) If
  the jury believe from the evidence that Freeborn G. Holmes was a boy
  of immature age, and had not the capacity of an adult, and that he
  exercised such care as ought reasonably to have been expected for one
  of his age and capacity, then he was not guilty of contributory
  negligence.”

  To this instruction defendant excepted.

  An instruction given at the request of defendant was, that, if the
  child failed to exercise such care and caution as an ordinarily
  prudent boy of his age and capacity should have exercised under the
  circumstances, and by reason thereof contributed to his own death,
  then your verdict must be for the defendant, regardless of all other
  facts in the case.

  Verdict for plaintiff. Judgment for plaintiff in Circuit Court.
  Defendant appealed.[216]

  VALLIANT, J.... In the brief for defendant, pages 61 and 139, the idea
  is advanced that the only theory on which the plaintiffs’ judgment
  could be sustained would be that the defendant is liable for the
  consequences of the reckless conduct of the deceased child. That is a
  misconception of the theory on which the defendant’s liability rests.
  The defendant is liable only for its own negligence, and if its plea
  of contributory negligence is not sustained, still, it is not charged
  with the consequence of the child’s negligence; but it is only not
  excused thereby for the result of its own negligence. It is not always
  essential to a plaintiff’s recovery, in an action for tort, that the
  evidence should show that the accident was the result of the
  defendant’s negligence alone. A defendant may be liable if his
  negligence contributes with that of a third person to produce the
  injury complained of; in such case he is not held liable for the
  negligence of the third person, but only for his own negligence,
  without the contributing force of which the negligence of the third
  person would not have caused the injury. But the policy of the law is
  such that ordinarily a defendant guilty of negligence is relieved from
  the liability for his own conduct if the person injured was himself
  guilty of negligence that contributed to the result. On that theory
  the defendant’s act is none the less negligent, and he is none the
  less culpable, but the law will not allow a plaintiff to recover when
  he himself, or the person for whose injury he sues, was also guilty of
  negligence contributing with that of defendant to the result. There is
  reason and justice in that policy of the law; it is an admonition to
  every one to exercise due care for his own safety, and it authorizes
  another to presume that he will do so, and, so presuming, adjust his
  own conduct. But common experience tells us that a child may be too
  young and immature to observe the care necessary to his own
  preservation and therefore when a person comes in contact with such a
  child, if its youth and immaturity are obvious, he is chargeable with
  knowledge of that fact and he cannot indulge the presumption that the
  child will do what is necessary to avoid an impending danger.
  Therefore one seeing such a child in such a position is guilty of
  negligence if he does not take into account the fact that it is a
  child and regulate his own conduct accordingly.[217] An act in
  relation to a person of mature years might be free from the imputation
  of negligence while an act of like character in view of a child would
  be blameworthy. Therefore when the law says to the defendant although
  the act of the deceased child contributed with your act to produce the
  result, yet, because of his youth and immaturity, he is not adjudged
  guilty of negligence, it does not charge the defendant with the
  consequence of the child’s conduct, but it only does not, for that
  reason, excuse him for its [his] own negligence.

  If the defendant in such case had been guilty of no negligence there
  would have been no accident.

                                                    _Judgment affirmed._

  GANTT, C. J., and BURGESS, LAMM, and WOODSON, JJ., concur. FOX and
  GRAVES, JJ., dissent.


               CULBERTSON _v._ CRESCENT CITY RAILROAD CO.
                SUPREME COURT, LOUISIANA, APRIL 6, 1896.
        _Reported in 48 Louisiana Annual Reports_, Part 2, 1376.

  Plaintiff sued for the killing of his son, 6 years and 11 months old,
  who was hit by a car at a street crossing.

  In the District Court, there was a verdict for plaintiff, and judgment
  thereon. Defendant appealed.[218]

  BREAUX, J. [After stating the claims of both parties, and reciting the
  testimony of plaintiff’s witnesses and of part of defendant’s
  witnesses.]

  The motorman and the conductor substantially testify that everything
  was done to prevent the accident; that the boy darted in front of the
  car and, that the motorman quickly stopped the car.

  After as careful and close an analysis of the evidence as it was
  possible for us to make, we think that the weight of the testimony is
  with the defendant.

  Plaintiff’s theory that the little boy was standing on the track,
  between the rails, and that the motorman ought to have seen him, is
  not sustained by the evidence of his own witnesses; they do not
  testify, with any degree of certainty, where he was just preceding the
  accident. The witnesses for the defendant agree in stating that he was
  not on the track, and that the accident was occasioned by the sudden
  act of the child.

  Granted as contended by the plaintiff that the motorman did not see
  the child before he was knocked down by the fender: if the child had
  escaped his attention, because of his sudden and unanticipated act
  itself, it becomes evident that the defendant is not liable. Whether
  he was seen or was not seen by the motorman would not render the
  defendant responsible, if owing to thoughtless impulse of the child he
  brought about the accident by a sudden act which could not be foreseen
  or guarded against by the motorman or any one else in charge of the
  car.

  This brings us to the question of contributory negligence. Courts are
  averse to finding children guilty of contributory negligence, and are
  readily and properly inclined to disregard the thoughtlessness natural
  to boyhood, but accidents may happen for which the unconscious agent
  may not be responsible.

  The fact that a child may not be capable of contributory negligence
  does not always render a defendant liable upon the mere proof of the
  injury. The test is negligence _vel non_. If the defendant or the
  defendant’s agent or employee was not negligent, it is not liable.

  The only alternative, after the conclusion reached, is to set aside
  the verdict.

  The verdict and judgment are reversed, annulled and avoided.

  The demand of plaintiff is rejected and his action dismissed at his
  cost in both courts.[219]


       HUTCHINSON _v._ ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY
          ST. LOUIS COURT OF APPEALS, MISSOURI, APRIL 9, 1901.
             _Reported in 88 Missouri Appeal Reports, 376._

Appeal from St. Louis City Circuit Court.

Plaintiff (respondent) was injured while driving on the track of the
street railroad at the crossing of two streets. The car collided with
the rear of his wagon. Plaintiff testified that he had been driving for
some three hundred yards with the left wheels of his wagon inside the
north rail. Defendant’s (appellant’s) testimony tended to prove that
plaintiff did not drive on the track until he had either reached or was
near the crossing, and that he then turned and drove onto the track,
when the motor car coming up from behind collided with the rear of his
wagon.

What is undisputed is, that he did not look back to see if a car was
coming before attempting to cross, nor, according to his own testimony,
after he drove onto the track three hundred yards or more to the east.
He drove very slowly. There was testimony tending to show the motorneer
in charge of the car was watching a train on the railroad just south of
Manchester avenue, which inattention prevented him from observing
plaintiff’s perilous position until the car was within twenty or thirty
feet of the wagon. He was required by a city ordinance, to be watching
the track.

The evidence as to the warning of the car’s approach was conflicting.

The plaintiff was entitled to the use of the entire street, and,
therefore, was not a trespasser, while the defendant was entitled to the
right of way.

Failure to signal the car’s approach was omitted from the instructions.
The only ground of recovery submitted to the jury was alleged negligence
of the defendant’s motorneer in not using ordinary care to avoid
injuring plaintiff after he knew, or by the proper care might have
known, the latter was in a dangerous position. One instruction was given
that plaintiff was guilty of contributory negligence if he failed to
look back at reasonable intervals to see if a car was coming and to get
off the track if he saw one. This was practically telling them he was
actually negligent, for he admitted he did not look back.

GOODE, J. The general principle on which the case was referred to the
jury, commonly styled the humane doctrine, is well supported by
authorities. It is accepted in some form in most of the state and
federal jurisdictions. So far as this court is concerned, the rule is no
longer debatable. All uncertainty about it being a substantive part of
the law of torts has been set at rest by recent deliberate
pronouncements of the Supreme Court. The authority of the rule is not
impugned by the learned counsel for the appellant, who only insist that
it is inapplicable to the cause in hand on account of the plaintiff’s
clear contributory negligence which continued to the moment of the
collision. This contention requires a brief examination of some cases in
which the doctrine has been applied. They divide into two classes and
the disputation which has raged over it has been on the border line
between the two. As enforced in one class, the rule has always seemed to
the writer to be a phase of the doctrine of proximate cause, consistent
with the theory of the entire law of negligence and without which the
system would be incomplete. These instances are where the plaintiff’s
negligent act was detached from the injury so that the defendant’s want
of care was the sole active agency in inflicting it. When an accident
happens under such circumstances, the plaintiff ought not to be refused
a recovery because, though remiss, his fault does not contribute to the
injury. Illustrations of this class of cases are numerous in the books,
beginning with the one from which all the others proceeded. Davies _v._
Mann, 10 Mees. & W. 546, where the plaintiff had carelessly fettered his
beast in the highway and the defendant’s servant drove over him. It is
manifest that the original negligence of the owner was separated from
the injury, which was proximately caused solely by the defendant’s tort.
Another apt illustration is found in the Reardon case (114 Mo. 384),
where the plaintiff carelessly went on the railway track and fell in
endeavoring to get off when he saw a train coming. It was held that if
the engineer failed to employ ordinary care to stop the train when he
saw him prostrate, the company was liable. The same ruling has been made
in actions where plaintiffs had fallen asleep on tracks or become
fastened in cattle guards or switches or where the person hurt was a
child or otherwise not of full legal capacity (Gabel _v._ Railway Co.,
60 Mo. 475). The doctrine is exclusively met with, so far as our reading
has shown, in controversies arising from injuries due to violent impacts
and collisions. The above instances exemplify its use in such cases
where properly expounded, it does not clash with the doctrine of
contributory negligence, though some of the applications made have laid
it open to that charge. The reconciliation and harmonious working of the
two rules may be achieved by considering closely whether the defendant’s
carelessness was alone the proximate cause of the injury. If only the
defendant’s was the proximate cause, the plaintiff, while guilty of
negligence, was not guilty of contributory negligence; his failure to
use care did not proximately contribute to the mischief. Time elapsed
between his wrongful act and the injury, during which the wrongful act
of the defendant supervened or entered, as a separate agency, which, by
its own independent action, wrought the unfortunate result. If, however,
the plaintiff’s want of care continues to the instant of the accident,
or so near the instant as to be immediately influential in producing it,
he is as much to blame as the defendant, and if the latter is compelled
to compensate him, the theory of the law of negligence is thus far
abandoned. When it is deemed expedient to allow a recovery under such
circumstances, it must be done as a measure of public policy. The rule
then becomes, in fact, an exception to the law of contributory
negligence, as was said in Kelly _v._ Railway Co., 101 Mo. 67. The real
basis of it, as it obtains in many jurisdictions in respect to injuries
by cars and locomotives when the injured individual was negligent to the
very instant of the collision, is to be sought, on an ultimate analysis,
in its supposed necessity for the public security. The guilt of the
plaintiff is excused, while that of the defendant is punished. In such
instances, its administration in cases of injuries by cars and engines
is attended with serious difficulty, viz.: determining when the
employees of the railway company may be justly said to have had notice
that the injured party was in a position of danger. Persons frequently
remain on railway tracks when a car or train is approaching, until it
would be impossible to stop it in time to avoid striking them, but
easily get off themselves in time. Accustomed to take care of their
safety where cars are constantly moving, they grow dexterous in avoiding
them and run risks. Engineers and motormen have a right to presume an
individual travelling on the track will leave it, and to act on that
presumption until his situation becomes alarming. Riley _v._ Railway
Company, 68 Mo. App. 661. Just when this happens must often be largely
conjectural, which circumstance weighs heavily with many against the
rule in question.

The doctrine in its wider scope prevails in this State. The plaintiff
may recover, notwithstanding his negligence directly contributed to his
hurt, if the defendant by ordinary care could have prevented the
accident. In the Morgan case (60 S. W. Rep. 195), where a recovery was
sustained, this language is spoken: “There can be no doubt, under the
evidence, that the death of the plaintiff’s husband resulted from the
negligence of the defendant’s servants in charge of the train, _and the
negligence of the deceased himself contributing thereto_.” Similar
expositions have been made in many other cases. Schmidt _v._ R’y Co., 50
S. W. 921; Klockenbrink _v._ Railway Co., 81 Mo. App. 351; Cooney _v._
Railway Co., 80 Mo. App. 226. They seem in conflict with the opinion in
Hogan _v._ R’y Co., 150 Mo. 36. We must follow the latest controlling
decision. The Morgan case was decided in banc.

In view of the strong utterances to be found in the foregoing
authorities, it is useless to descant on the wisdom or fallacy of the
rule, to explore its foundation, extol its justice, or regret its
hardship. Our unmistakable duty is to enforce it as we would any other
part of the law. The present case differs in no material respect,
calling for its application, from the Morgan or Cooney cases, _supra_,
which become therefore controlling precedents. The Morgan case is
stronger because there the engineer did not see the deceased, who was
flagrantly careless, to the time the engine struck him; here the
motorman did not see the plaintiff. The court below did not err in
refusing an instruction to find the issue for the defendant, but rightly
submitted them. This practically disposes of the case.

                  *       *       *       *       *

                                               _Judgment affirmed._[220]


                          STEINMETZ _v._ KELLY
              SUPREME COURT, INDIANA, NOVEMBER TERM, 1880.
                 _Reported in 72 Indiana Reports, 442._

WORDEN, J. Action by the appellee against the appellant for assault and
battery. The complaint consisted of three paragraphs, a demurrer to each
of which, for want of sufficient facts, was overruled. The first, the
only one to which any specific objection is made in this Court, alleged
that the defendant, on, &c., “violently and unlawfully assaulted the
plaintiff, and struck him, and also threw him, the plaintiff, from the
house of the defendant on to the street pavement, in front of the
defendant’s house, with great violence, fracturing,” &c.

The defendant answered:—

_First._ [That there was a justifiable occasion for his use of force,
and that he used no more force than was necessary.]

_Second._ General denial.

The plaintiff replied by general denial to the first paragraph of the
answer. Trial by jury, verdict and judgment for the plaintiff for $500.

The counsel for the appellant in their brief say: “We shall not stop now
to discuss the merits of the complaint further than to say that the
first paragraph of the complaint shows an eviction from the defendant’s
premises, and we have thought that the paragraph should aver that the
injury occurred without the fault of the plaintiff.” The paragraph does
not charge an injury to the plaintiff arising out of the negligence of
the defendant, but an unlawful assault upon, and battery of, the
plaintiff’s person. In such cases it is not necessary to allege that the
plaintiff was without fault, or, in other words, was not guilty of
contributory negligence. There remains nothing more to be considered
except such questions as arise on a motion for a new trial.

[Omitting part of opinion.]

The defendant asked that the following interrogatory be answered by the
jury, if they should return a general verdict, viz.: “Did the fault or
negligence of the plaintiff contribute in any way to the injury of the
plaintiff, received on the evening of the 3d of March, 1876?” The Court
declined to direct the jury to answer the interrogatory, and in this we
think no error was committed.

The right of the plaintiff to recover depended not upon any negligence
of the defendant, but upon the assault and battery, which, if
perpetrated at all by the defendant, was intentional and purposed. It
may be that the defendant did not intend to inflict so severe an injury
upon the plaintiff as seemed to result from the excess of force applied
by him; but it does not therefore follow that he did not intend to apply
that force.

The doctrine that contributory negligence on the part of the plaintiff
will defeat his action has been generally applied in actions based on
the negligence of the defendant, in short, in cases involving mutual
negligence. But it has also been applied in some cases where the matter
complained of was not negligence merely, but the commission of some act
in itself unlawful, without reference to the manner of committing it, as
the wilful and unauthorized obstruction of a highway, whereby a person
is injured. Butterfield _v._ Forrester, 11 East, 60; Dygert _v._
Schenck, 23 Wend. 446.

The doctrine, however, can have no application to the case of an
intentional and unlawful assault and battery, for the reason that the
person thus assaulted is under no obligation to exercise any care to
avoid the same by retreating or otherwise, and for the further reason
that his want of care can in no just sense be said to contribute to the
injury inflicted upon him by such assault and battery.

An intentional and unlawful assault and battery inflicted upon a person
is an invasion of his right of personal security, for which the law
gives him redress, and of this redress he cannot be deprived on the
ground that he was negligent and took no care to avoid such invasion of
his right.

The trespass was purposely committed by the defendant. If he could
excuse it on the ground of the alleged misconduct of the plaintiff, and
if he employed no more force than was necessary and reasonable, that was
a complete defence. Otherwise the plaintiff, if he made out the
trespass, was entitled to recover, and no negligence on his part, as
before observed, could defeat his action. The case of Ruter _v._ Foy, 46
Iowa, 132, is in point. There the plaintiff alleged that the defendant
had assaulted and beat her with a pitchfork. On the trial the defendant
asked, but the Court refused, the following instruction: “If you find
from the evidence that the plaintiff was injured, or contributed to her
injury, by her own act or negligence, defendant would not be liable for
assault and battery upon her, and plaintiff cannot recover.” On appeal
the Court said upon this point: “The doctrine of contributory negligence
has no application in an action for assault and battery.”

The case here is entirely unlike that of Brown _v._ Kendall, 6 Cush.
292. There the defendant’s dog and another were fighting. The defendant
was beating the dogs with a stick in order to separate them, in doing
which he accidentally hit the plaintiff in the eye with the stick. It
was held that trespass _vi et armis_ was the proper form of action,
because the injury to the plaintiff was immediate; but that as the
parting of the dogs was a proper and lawful act, and as the hitting of
the plaintiff was not intentional, but a mere accident or casualty, the
plaintiff could not recover at all without showing a want of ordinary
care on the part of the defendant; and then that contributory negligence
on the part of the plaintiff would defeat the action.

Although, according to the common-law system of pleading, trespass _vi
et armis_ was the proper form of action in such case, the essential and
only ground on which the action could rest was the negligence of the
defendant in doing an act lawful in itself whereby the plaintiff was
injured, and this is so as fully as if the plaintiff had framed his
declaration in case for the negligence.

The difference between that case and the present is substantial and
vital. In that case the battery was unintentional, and the defendant
therein was guilty of no wrong save his negligence. Here the defendant
intentionally perpetrated the battery, and the plaintiff’s right to
recover was not based upon the negligence of the defendant at all.

[Omitting part of opinion.]

We find no error in the record.

The judgment below is affirmed with costs.

Petition for a rehearing overruled.

                                              _Judgement affirmed._[221]


                 AIKEN _v._ HOLYOKE STREET RAILWAY CO.
        SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 21, 1903.
             _Reported in 184 Massachusetts Reports, 269._

Tort by an infant against a street railway company for personal
injuries. Writ dated July 6, 1898.

At a previous stage of this case, reported in 180 Mass. 8, the
plaintiff’s exceptions were sustained by this court after a verdict had
been ordered in the Superior Court for the defendant. At the new trial
in the Superior Court before Lawton, J., the jury returned a verdict for
the plaintiff in the sum of $5000. The defendant alleged exceptions,
raising the questions stated by the court.

KNOWLTON, C. J. The most important question in this case grows out of
the instructions to the jury upon the third count. This count charges
the defendant, by its servants, with having started up the car
recklessly, wantonly and with gross disregard of the plaintiff’s safety,
while he was in a place of great peril upon the step of the car, and
with having thrown him upon the ground and under the wheels of the car.
There was evidence tending to show that the plaintiff, a boy six and one
half years of age, ran near or against the car, and was upon the lower
step at the forward end as the car was going around a curve from one
street into another, and was clinging to the step trying to get into a
stable position, and that he there cried out to the motorman, “Let me
off”; that the motorman saw and heard him and knew that he was in a
place of danger, and that he then turned on the power in a wanton and
reckless way, with a view to start the car quickly, and that the
plaintiff was thus thrown off and injured. This testimony was
contradicted, but it was proper for the consideration of the jury. The
judge instructed the jury that if they found the facts to be in
accordance with this contention of the plaintiff, they would be
warranted in finding that the conduct of the motorman was wanton and
reckless, and in returning a verdict for the plaintiff. He also
instructed them that to maintain the action on this ground, it must be
proved that the motorman wilfully and intentionally turned on the power,
with a view to making the car start forward rapidly and go at full speed
quickly, but that it was not necessary to prove that he did this with
the intention of throwing the boy off and injuring him. He also told
them that to warrant a recovery upon this state of facts, the plaintiff
need not show that he was in the exercise of due care. The defendant
excepted to that part of the instruction which relates to due care on
the part of the plaintiff.

The defendant contends that while it was not necessary for the plaintiff
to show due care anterior to the act of the motorman, he was bound to
show due care which was concurrent with this act and immediately
subsequent to it. This brings us to a consideration of the rules and
principles applicable to this kind of liability. It is familiar law that
in the absence of a statutory provision, mere negligence, whatever its
degree, if it does not include culpability different in kind from that
of ordinary negligence, does not create a liability in favor of one
injured by it, if his own negligence contributes to his injury. It is
equally true that one who wilfully and wantonly, in reckless disregard
of the rights of others, by a positive act or careless omission exposes
another to death or grave bodily injury, is liable for the consequences,
even if the other was guilty of negligence or other fault in connection
with the causes which led to the injury. The difference in rules
applicable to the two classes of cases results from the difference in
the nature of the conduct of the wrong-doers in the two kinds of cases.
In the first case the wrong-doer is guilty of nothing worse than
carelessness. In the last he is guilty of a wilful, intentional wrong.
His conduct is criminal or _quasi_ criminal. If it results in the death
of the injured person, he is guilty of manslaughter. Commonwealth _v._
Pierce, 138 Mass. 165; Commonwealth _v._ Hartwell, 128 Mass. 415. The
law is regardful of human life and personal safety, and if one is
grossly and wantonly reckless in exposing others to danger, it holds him
to have intended the natural consequences of his act, and treats him as
guilty of a wilful and intentional wrong. It is no defence to a charge
of manslaughter for the defendant to show that, while grossly reckless,
he did not actually intend to cause the death of his victim. In these
cases of personal injury there is a constructive intention as to the
consequences, which, entering into the wilful, intentional act, the law
imputes to the offender, and in this way a charge which otherwise would
be mere negligence, becomes, by reason of a reckless disregard of
probable consequences, a wilful wrong. That this constructive intention
to do an injury in such cases will be imputed in the absence of an
actual intent to harm a particular person, is recognized as an
elementary principle in criminal law. It is also recognized in civil
actions for recklessly and wantonly injuring others by carelessness.
Palmer _v._ Chicago, St. Louis & Pittsburgh Railroad, 112 Ind. 250;
Shumacher _v._ St. Louis & San Francisco Railroad, 39 Fed. Rep. 174;
Brannen _v._ Kokomo, Greentown & Jerome Gravel Road Co., 115 Ind. 115.
In an action to recover damages for an assault and battery, it would be
illogical and absurd to allow as a defence, proof that the plaintiff did
not use proper care to avert the blow. See Sanford _v._ Eighth Avenue
Railroad, 23 N. Y. 343, 346. It would be hardly less so to allow a
similar defence where a different kind of injury was wantonly and
recklessly inflicted. A reason for the rule is the fact that if a
wilful, intentional wrong is shown to be the direct and proximate cause
of an injury, it is hardly conceivable that any lack of care on the part
of the injured person could so concur with the wrong as also to be a
direct and proximate contributing cause to the injury. It might be a
condition without which the injury could not be inflicted. See Newcomb
_v._ Boston Protective Department, 146 Mass. 596. It might be a remote
cause, but it hardly could be a cause acting directly and proximately
with the intentional wrongful act of the offender. Judson _v._ Great
Northern Railway, 63 Minn. 248, 255. The offence supposed is different
in kind from the plaintiff’s lack of ordinary care. It is criminal or
_quasi_ criminal. Not only is it difficult to conceive of a plaintiff’s
negligence as being another direct and proximate cause foreign to the
first, yet acting directly with it, but it would be unjust to allow one
to relieve himself from the direct consequences of a wilful wrong by
showing that a mere lack of due care in another contributed to the
result. The reasons for the rule as to the plaintiff’s care in actions
for ordinary negligence are wanting, and at the same time the facts make
the rule impossible of application. The general rule that the
plaintiff’s failure to exercise ordinary care for his safety, is not a
good defence to an action for wanton and wilful injury caused by a
reckless omission of duty, has been recognized in many decisions, as
well as by writers of text-books. Aiken _v._ Holyoke Street Railway, 180
Mass. 8, 14, 15; Wallace _v._ Merrimack River Navigation & Express Co.,
134 Mass. 95; Banks _v._ Highland Street Railway, 136 Mass. 485, 486;
Palmer _v._ Chicago, St. Louis & Pittsburgh Railroad, 112 Ind. 250;
Brannen _v._ Kokomo, Greentown & Jerome Gravel Road Co., 115 Ind. 115;
Florida Southern Railway _v._ Hirst, 30 Fla. 1; Shumacher _v._ St. Louis
& San Francisco Railroad, 39 Fed. Rep. 174; 7 Am. & Eng. Encyc. of Law
(2d ed.) 443 and note; Beach, Contr. Neg. (3d ed.) §§ 46, 50, 64, 65;
Wood, Railroads (2d ed.), 1452; Elliott, Railroads, § 1175; Thompson,
Neg. § 206; Cooley, Torts (2d ed.), 810. We have been referred to no
case in which it is held that it makes any difference whether the
plaintiff’s lack of ordinary care is only previous to the defendant’s
wrong and continuing to the time of it, or whether there is such a lack
after the wrong begins to take effect. It is difficult to see how there
can be any difference in principle between the two cases. In this
Commonwealth, as in most other jurisdictions, liability does not depend
upon which of different causes contributing to an injury is latest in
the time of its origin, but upon which is the direct, active, efficient
cause, as distinguished from a remote cause, in producing the result.

There are expressions in some of the cases which imply the possibility
of contributory negligence on the part of the plaintiff in a case of
wanton and reckless injury by a defendant. If there is a conceivable
case in which a plaintiff’s want of due care may directly and
proximately contribute as a cause of an injury inflicted directly and
proximately by the wilful wrong of another, such a want of care must be
something different from the mere want of ordinary care to avoid an
injury coming in a usual way. There is nothing to indicate the existence
of peculiar conditions of this kind in the present case. Conduct of a
plaintiff which would be negligence precluding recovery if the injury
were caused by ordinary negligence of a defendant, will not commonly
preclude recovery if the injury is inflicted wilfully through wanton
carelessness. This is illustrated by the former decision in this case
and by many others. Aiken _v._ Holyoke Street Railway, 180 Mass. 8;
McKeon _v._ New York, New Haven, & Hartford Railroad, 183 Mass. 271. As
to this kind of liability of the defendant, it was certainly proper to
instruct the jury that, in reference to ordinary kinds of care to avoid
an injury from a car, the plaintiff need not show that he was in the
exercise of due care if a lack of such care would have no tendency to
cause the wilful and wanton injury. The fair interpretation of the
instruction given is, that it referred to ordinary kinds of care to
avoid an injury from an electric car. On this branch of the case there
seems to have been no reason for an instruction in regard to any special
care, and probably neither counsel nor the court had any care in mind
except that, in reference to which, in any view of the law, the
instruction was properly given. We are of opinion that the ruling
excepted to was correct.

[Omitting opinion on other points.]

                                            _Exceptions overruled._[222]


                           BANKS _v._ BRAMAN
         SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 20, 1905.
             _Reported in 188 Massachusetts Reports, 367._

Tort, for injuries from being struck by an automobile driven by the
defendant on Mount Auburn Street in Cambridge near its intersection with
Belmont Street shortly after eight o’clock on the evening of May 17,
1903. Writ dated November 18, 1903.

At the trial in the Superior Court before Aiken, C. J., the jury
returned a verdict for the plaintiff in the sum of $3750; and the
defendant alleged exceptions, raising the questions stated by the court.

KNOWLTON, C. J. This is an action to recover for injuries received from
being struck by an automobile alleged to have been negligently run at an
excessive rate of speed, and negligently managed by the defendant. The
case was submitted to the jury on two alleged grounds of liability: one,
that the defendant, with gross negligence, wantonly and recklessly
injured the plaintiff, and the other that the plaintiff was in the
exercise of due care, and that the injury was due to the defendant’s
negligence. On the first claim the judge instructed the jury as follows:
“Gross negligence is great negligence. To make out the proposition of
gross negligence, you must be satisfied that the way the machine was
operated by Braman was reckless, was careless to the degree of
recklessness; that it was run with a reckless disregard to the rights of
Banks in this street. If that is established, namely, that there was a
reckless disregard of the rights of Banks in the way this machine was
run, then Banks is not required to show that he was himself in the
exercise of due care. If the way—I repeat this for the purpose of
plainness perhaps unnecessarily—if the manner in which the machine—the
automobile, I mean by the machine—was run on the occasion of this
accident was such that it was grossly negligent, that is, careless to
such a degree that you can say it was reckless, using your common sense
and judgment, and applying them to the evidence, then Banks is not
required to show that he was in the exercise of due care; because if the
defendant’s carelessness was gross in the sense that has been defined to
you, there is an obligation to pay damages independent of the matter of
due care.” The defendant excepted to this instruction. The jury were
instructed as to the liability for a failure to exercise ordinary care,
but there was no fuller statement of the law on this branch of the case.

The question is whether the difference between the two kinds of
liability was sufficiently pointed out to give the jury an adequate
understanding of it. The difference in culpability of the defendant,
which distinguishes these different kinds of liability, is something
more than a mere difference in the degree of inadvertence. In one case
there need be nothing more than a lack of ordinary care, which causes an
injury to another. In the other case there is wilful, intentional
conduct whose tendency to injure is known, or ought to be known,
accompanied by a wanton and reckless disregard of the probable harmful
consequences from which others are likely to suffer, so that the whole
conduct together, is of the nature of a wilful, intentional wrong.

[Here the learned judge quoted at length from Aiken _v._ Holyoke Street
Railway, 184 Mass. 269, 271.]

In dealing with the same subject in Bjornquist _v._ Boston & Albany
Railroad, 185 Mass. 130, 134, the court said: “The conduct which creates
a liability to a trespasser in cases of this kind has been referred to
in the books in a variety of ways. Sometimes it has been called gross
negligence and sometimes wilful negligence. Plainly it is something more
than is necessary to constitute the gross negligence referred to in our
statutes and in decisions of this court. The term ‘wilful negligence’ is
not a strictly accurate description of the wrong. But wanton and
reckless negligence in this class of cases includes something more than
ordinary inadvertence. In its essence it is like a wilful, intentional
wrong. It is illustrated by an act which otherwise might be
unobjectionable, but which is liable or likely to do great harm, and
which is done in a wanton and reckless disregard of the probable
injurious consequences.” The ground on which it is held that, when an
act of the defendant shows an injury inflicted in this way, the
plaintiff need introduce no affirmative evidence of due care, is that
such a wrong is a cause so independent of previous conduct of the
plaintiff, which, in a general sense, may fall short of due care, that
this previous conduct cannot be considered a directly contributing cause
of the injury, and, in reference to such an injury, the plaintiff,
without introducing evidence, is assumed to be in a position to claim
his rights and to have compensation. So far as the cause of his injury
is concerned, he is in the position of one who exercises due care. Aiken
_v._ Holyoke Street Railway, _ubi supra_.

It is not easy to explain to a jury the nature of this liability. What
was said by the judge in this case comes very near to a correct
statement of the law. But it lacks something in fulness, and we think
the jury may have understood that negligence somewhat greater in degree
than a mere lack of ordinary care or a simple inadvertence, but not
different from it in kind, would constitute the gross negligence
referred to. We are of opinion that when there is an attempt to
establish this peculiar kind of liability, which exists independently of
a general exercise of due care by the plaintiff, the jury should be
instructed with such fulness as to enable them to know that they are
dealing with a wrong materially different in kind from ordinary
negligence. Because we think the instruction may have left the jury with
a misunderstanding of the law, the exceptions are sustained.

We are of opinion that there was evidence which justified the submission
of the case to the jury on this ground, as well as on the ground that
the plaintiff was in the exercise of due care.

                                            _Exceptions sustained._[223]


                  GEORGIA PACIFIC RAILWAY CO. _v._ LEE
              SUPREME COURT, ALABAMA, NOVEMBER TERM, 1890.
                 _Reported in 92 Alabama Reports, 262._

  MCCLELLAN, J.[224] ... Many of the rulings of the trial court in
  defining the gross negligence, recklessness or wantonness on the part
  of the defendant, which will authorize recovery, notwithstanding
  plaintiff’s contributory negligence, are presented for review. The
  fault in the court’s definitions in this regard lies, in our opinion,
  in the assumption that recklessness or wantonness implying wilful and
  intentional wrong-doing may be predicated of a mere omission of duty,
  under circumstances which do not, of themselves, impute to the person
  so failing to discharge the duty a sense of the probable consequences
  of the omission. The charges given by the court in this connection,
  and its rulings on charges requested by the defendant, proceed on the
  theory that a mere failure on the part of defendant’s employees to see
  plaintiff’s wagon and team as soon as they might have seen them by the
  exercise of due care was such recklessness or wantonness as implies a
  willingness or a purpose on their part to inflict the injury
  complained of. We do not think this proposition can be maintained
  either logically or upon the authorities. The failure to keep a
  lookout, which it was the duty of defendant’s employees to maintain,
  and which would have sooner disclosed the peril of the driver and
  plaintiff’s wagon and team—even conceding that such would have been
  the case—was, at the most, mere negligence, inattention, inadvertence;
  and it cannot be conceived, in the nature of things, how a purpose to
  accomplish a given result can be imputed to mental conditions, the
  very essence of which is the absence of all thought on the particular
  subject. To say that one intends a result which springs solely from
  his mind not addressing itself to the factors which conduce to it, to
  imply a purpose to do a thing from inadvertence in respect of it, are
  contradictions in terms. Wilful and intentional wrong, a willingness
  to inflict injury, cannot be imputed to one who is without
  consciousness, from whatever cause, that his conduct will inevitably
  or probably lead to wrong and injury. In the case at bar, this
  consciousness could not exist on the part of defendant’s employees
  until they knew plaintiff’s wagon and team were in a position of
  danger; and no degree of ignorance on their part of this state of
  things, however reprehensible in itself, could supply this element of
  conscious wrong, or reckless indifference to consequences, which, from
  their point of view, would probably or necessarily ensue.

  The true doctrine, and that supported by many decisions of this court,
  as well as the great weight of authority in other jurisdictions, is
  that notwithstanding plaintiff’s contributory negligence he may yet
  recover, if, in a case like this, the defendant’s employees _discover
  the perilous situation in time to prevent disaster by the exercise of
  due care and diligence, and fail, after the peril of plaintiff’s
  property becomes known to them as a fact_—and not merely after they
  should have known it—_to resort to all reasonable effort to avoid the
  injury_. Such failure, with such knowledge of the situation and the
  probable consequences of the omission to act upon the dictates of
  prudence and diligence to the end of neutralizing plaintiff’s fault
  and averting disaster, notwithstanding his lack of care, is, strictly
  speaking, not _negligence_ at all, though the term “gross negligence”
  has been so frequently used as defining it that it is perhaps too
  late, if otherwise desirable, to eradicate what is said to be an
  unscientific definition, if not indeed a misnomer; but it is more than
  any degree of negligence, inattention or inadvertence—which can never
  mean other than the omission of action without intent, existing or
  imputed, to commit wrong—it is that recklessness, or wantonness, or
  worse, which implies a willingness to inflict the impending injury, or
  a wilfulness in pursuing a course of conduct which will naturally or
  probably result in disaster, or an intent to perpetrate wrong. The
  theory of contributory negligence, as a defence, is that, conjointly
  with _negligence_ on the part of the defendant, it conduces to the
  damnifying result, and defeats any action, the _gravamen_ of which is
  such negligence. If defendant’s conduct is not merely negligent, but
  worse, there is nothing for plaintiff’s want of care to contribute
  to—there is no lack of mere prudence and diligence of like kind on the
  part of defendant to conjunctively constitute the efficient cause.
  Mere negligence on the one hand cannot be said to aid wilfulness on
  the other. And hence such negligence of a plaintiff is no defence
  against the consequences of the wilfulness of the defendant. But
  nothing short of the elements of actual knowledge of the situation on
  the part of defendant’s employees, and their omission of preventive
  effort after that knowledge is brought home to them, when there is
  reasonable prospect that such effort will avail, will suffice to avoid
  the defence of contributory negligence on the part of, or imputable
  to, the plaintiff.


         KELLOGG _v._ CHICAGO AND NORTHWESTERN RAILWAY COMPANY
               SUPREME COURT, WISCONSIN, JUNE TERM, 1870.
                _Reported in 26 Wisconsin Reports, 223._

Action to recover damages for destruction of hay, sheds, stables, &c.,
by a fire alleged to have originated in the negligence of the railway
company. Fire was communicated by sparks from railroad engine to dry
grass, weeds, &c., which had been allowed to accumulate on defendant’s
land, on both sides of the track; and thence the fire passed upon
plaintiff’s land where dry grass and weeds had also been permitted to
accumulate. A strong wind was blowing from the track toward plaintiff’s
buildings, about one hundred and forty rods distant. The dry and
combustible matter on the railroad land and on plaintiff’s land,
together with the wind, served to carry the fire to plaintiff’s
building, &c., which were destroyed.

Trial; verdict and judgment for plaintiff. Defendant appealed.[225]

DIXON, C. J. All the authorities agree that the presence of dry grass
and other inflammable material upon the way of a railroad, suffered to
remain there by the company without cause, is a fact from which the jury
may find negligence against the company. The cases in Illinois, cited
and relied upon by counsel for the defendant, hold this. They hold that
it is proper evidence for the jury, who may find negligence from it,
although it is not negligence _per se_. Railroad Co. _v._ Shanefelt, 47
Ill. 497; Illinois Central Railroad Co. _v._ Nunn, 51 id. 78; Railroad
Co. _v._ Mills, 42 id. 407; Bass _v._ Railroad Co., 28 id. 9. The Court
below ruled in the same way, and left it for the jury to say whether the
suffering of the combustible material to accumulate upon the right of
way and sides of the track, or the failure to remove the same, if the
jury so found, was or was not, under the circumstances, negligence on
the part of the company. No fault can be found with the instructions in
this respect; and the next question is as to the charge of the Court,
and its refusal to charge, respecting the alleged negligence of the
plaintiff contributing, as it is said, to the loss or damage complained
of. This is the leading and most important question in the case. It is a
question upon which there is some conflict of authority.

The facts were, that the plaintiff had permitted the weeds, grass, and
stubble, to remain upon his own land immediately adjoining the railway
of the defendant. They were dry and combustible, the same as the weeds
and grass upon the right of way, though less in quantity, because within
the right of way no mowing had ever been done, and the growth was more
luxuriant and heavy. The plaintiff had not cut and removed the grass and
weeds from his own land, nor ploughed in or removed the stubble, so as
to prevent the spread of fire in case the same should be communicated to
the dry grass and weeds upon the railroad, from the engines operated by
the defendant. The grass, weeds, and stubble, upon the plaintiff’s land,
together with the wind, which was blowing pretty strongly in that
direction, served to carry the fire to the stacks, buildings, and other
property of the plaintiff, which were destroyed by it, and which were
situated some distance from the railroad. The fire originated within the
line of the railroad, and near the track, upon the land of the
defendant. It was communicated to the dry grass and other combustible
material there, by coals of fire dropped from an engine of the defendant
passing over the road. The evidence tends very clearly to establish
these facts, and under the instructions the jury must have so found. The
plaintiff is a farmer, and, in the particulars here in controversy,
conducted his farming operations the same as other farmers throughout
the country. It is not the custom anywhere for farmers to remove the
grass or weeds from their waste lands, or to plough in or remove their
stubble, in order to prevent the spread of the fire originating from
such causes.

Upon this question, as upon the others, the Court charged the jury that
it was for them to say whether the plaintiff was guilty of negligence,
and, if they found he was, that then he could not recover. On the other
hand, the defendant asked an instruction to the effect that it was
negligence _per se_ for the plaintiff to leave the grass, weeds, and
stubble upon his own land, exposed to the fire which might be
communicated to them from the burning grass and weeds on the defendant’s
right of way, and that for this reason there could be no recovery on the
part of the plaintiff. The Court refused to give the instruction, and, I
think, rightly. The charge upon this point, as well as upon the other,
was quite as favorable to the defendant as the law will permit, and even
more so than some of the authorities will justify. The authorities upon
this point are, as I have said, somewhat in conflict. The two cases
first above cited from Illinois hold that it is negligence on the part
of the adjoining landowner not to remove the dry grass and combustible
material from his own land under such circumstances, and that he cannot
recover damages where the loss is by fire thus communicated. Those
decisions were by a divided Court, by two only of the three judges
composing it. They rest upon no satisfactory grounds, whilst the reasons
found in the opinions of the dissenting judge are very strong to the
contrary. Opposed to these are the unanimous decisions of the courts of
New York, and of the English Court of Exchequer, upon the identical
point. Cook _v._ Champlain Transportation Co., 1 Denio, 91; Vaughan _v._
Taff Vale Railway Co., 3 Hurl. and Nor. 743; Same _v._ Same, 5 id. 679.
These decisions, though made many years before the Illinois cases arose,
are not referred to in them. The last was the same case on appeal in the
Exchequer Chamber, where, although the judgment was reversed, it was
upon another point. This one was not questioned, but was affirmed, as
will be seen from the opinions of the judges, particularly of Cockburn,
C. J., and Willes, J. The reasoning of those cases is, in my judgment,
unanswerable. I do not see that I can add anything to it. They show that
the doctrine of contributory negligence is wholly inapplicable,—that no
man is to be charged with negligence because he uses his own property or
conducts his own affairs as other people do theirs, or because he does
not change or abandon such use, and modify the management of his
affairs, so as to accommodate himself to the negligent habits or gross
misconduct of others, and in order that such others may escape the
consequences of their own wrong, and continue in the practice of such
negligence or misconduct. In other words, they show that no man is to be
deprived of the free, ordinary, and proper use of his own property by
reason of the negligent use which his neighbor may make of his. He is
not his neighbor’s guardian or keeper, and not to answer for his
neglect. The case put by the Court of New York, of the owner of a lot
who builds upon it in close proximity to the shop of a smith, is an apt
illustration. Or let us suppose that A. and B. are proprietors of
adjoining lands. A. has a dwelling-house, barns, and other buildings
upon his, and cultivates some portion of it. B. has a planing mill, or
other similar manufacturing establishment upon his, near the line of A.,
operated by steam. B. is a careless man, habitually so, and suffers
shavings and other inflammable material to accumulate about his mills
and up to the line of A., and so near to the fire in the mill that the
same is liable at any time to be ignited. A. knows this, and
remonstrates with B., but B. persists. Upon A.’s land, immediately
adjoining the premises of B., it is unavoidable, in the ordinary course
of husbandry, or of A.’s use of the land, that there should be at
certain seasons of the year, unless A. removes them, dry grass and
stubble, which, when set fire to, will endanger his dwelling-house and
other property of a combustible nature, especially with the wind blowing
in a particular direction at the time. It may be a very considerable
annual expense and trouble to A. to remove them. It may require
considerable time and labor, a useless expenditure to him, diverting his
attention from other affairs and duties. The constant watching to guard
against the carelessness and negligence of B. is a great tax upon his
time and patience. The question is: Does the law require this of him,
lest, in some unguarded moment, the fire should break out, his property
be destroyed, and he be remediless? If the law does so require, if it
imposes on him the duty of guarding against B.’s negligence, and of
seeing that no injury shall come from it, or, if it does come, that it
shall be his fault and not B.’s, it is important to know upon what
principle it is that the burden is thus shifted from B. to himself. I
know of no such principle, and doubt whether any Court could be found
deliberately to announce or affirm it. And yet such is the result of
holding the doctrine of contributory negligence applicable to such a
case. A. is compelled, all his lifetime, at much expense and trouble, to
watch and guard against the negligence of B., and to prevent any
injuries arising from it, and for what? Simply that B. may continue to
indulge in such negligence at his pleasure. And he does so with
impunity. The law affords no redress against him. If the property is
destroyed, it is because of the combustible material on A.’s land, which
carries the fire, and which is A.’s fault, and A. is the loser. No loss
can ever possibly overtake him. A. is responsible for the negligence,
but not he himself. He kindles the fire, and A. stands guard over it. He
sets the dangerous element in motion, and uses and operates it for his
own benefit and advantage, negligently as he pleases, whilst A., with
sleepless vigilance, sees to it that no damage is done, or if there is,
that he will be the sufferer. This is the _reductio ad absurdum_ of
applying the doctrine of contributory negligence in such a case. And it
is absurd, I care not by what Court or where applied.

Now the case of a railroad company is like the case of an individual.
Both stand on the same footing with respect to their rights and
liabilities. Both are engaged in the pursuit of a lawful business, and
are alike liable for damage or injury caused by their negligence in the
prosecution of it. Fire is an agent of an exceedingly dangerous and
unruly kind, and, though applied to a lawful purpose, the law requires
the utmost care in the use of all reasonable and proper means to prevent
damage to the property of third persons. This obligation of care, the
want of which constitutes negligence according to the circumstances, is
imposed upon the party who uses the fire, and not upon those persons
whose property is exposed to danger by reason of the negligence of such
party. Third persons are merely passive, and have the right to remain
so, using and enjoying their own property as they will, so far as
responsibility for the negligence of the party setting the unruly and
destructive agent in motion is concerned. If he is negligent, and damage
ensues, it is his fault and cannot be theirs, unless they contribute to
it by some unlawful or improper act. But the use of their own property
as best suits their own convenience and purposes, or as other people use
theirs, is not unlawful or improper. It is perfectly lawful and proper,
and no blame can attach to them. He cannot, by his negligence, deprive
them of such use, or say to them, “Do this or that with your property,
or I will destroy it by the negligent and improper use of my fire.” The
fault, therefore, in both a legal and moral point of view, is with him,
and it would be something strange should the law visit all the
consequences of it upon them. The law does not do so, and it is an utter
perversion of the maxim _sic utere tuo, etc._, thus to apply it to the
persons whose property is so destroyed by the negligence of another. It
is changing it from “So use your own as not to injure another’s
property,” to “So use your own that another shall not injure your
property,” by his carelessness and negligence. It would be a very great
burden to lay upon all the farmers and proprietors of lands along our
extensive lines of railway, were it to be held that they are bound to
guard against the negligence of the companies in this way,—that the law
imposes this duty upon them. Always burdensome and difficult, it would,
in numerous instances, be attended with great expense and trouble.
Changes would have to be made in the mode of use and occupation, and
sometimes the use abandoned, or at least all profitable use. Houses and
buildings would have to be removed, and valuable timber cut down and
destroyed. These are, in general, very combustible, especially at
particular seasons of the year. The presence of these along or near the
line of the railroad would be negligence in the farmer or proprietor. In
the event of their destruction by the negligence of the company, he
would be remediless. He must remove them, therefore, for his own safety.
His only security consists in that. He must remove everything
combustible from his own land in order that the company may leave all
things combustible on its land and exposed without fear of loss or
danger to the company to being ignited at any moment by the fires from
its own engines. If this duty is imposed upon the farmers and other
proprietors of adjoining lands, why not require them to go at once to
the railroad and remove the dry grass and other inflammable material
there? There is the origin of the mischief, and there the place to
provide securities against it. It is vastly easier, by a few slight
measures and a little precaution, to prevent the conflagration in the
first place than to stay its ravages when it has once begun,
particularly if the wind be blowing at the time, as it generally is upon
our open prairies. With comparatively little trouble and expense upon
the road itself, a little labor bestowed for that purpose, the mischief
might be remedied. And this is an additional reason why the burden ought
not to be shifted from the company upon the proprietor of the adjoining
land; although, if it were otherwise, it certainly would not change what
ought to be the clear rule of law upon the subject.

And the following cases will be found in strict harmony with those above
cited, and strongly to sustain the principles there laid down, and for
which I contend: Martin _v._ Western Union Railroad Co., 23 Wis. 437;
Piggott _v._ Eastern Counties R. R. Co., 54 E. C. L. 228; Smith _v._
London and Southwestern R. R. Co., Law Reports, 5 C. P. 98; Vaughan _v._
Menlove, 7 C. & P. 525 [32 E. C. L. 613]; Hewey _v._ Nourse, 54 Me. 256;
Turberville _v._ Stampe, 1 Ld. Raym. 264; S. C. 1 Salk. 13; Pantam _v._
Isham, id. 19; Field _v._ N. Y. C. R. R., 32 N. Y. 339; Bachelder _v._
Heagan, 18 Maine, 32; Barnard _v._ Poor, 21 Pick. 378; Fero _v._ Buffalo
and State Line R. R. Co., 22 N. Y. 209; Fremantle _v._ The London and
Northwestern R. R. Co., 100 E. C. L. 88; Hart _v._ Western Railroad Co.,
13 Met. 99; Ingersoll _v._ Stockbridge & Pittsfield R. R. Co., 8 Allen,
438; Perley _v._ Eastern Railroad Co., 98 Mass. 414; Hooksett _v._
Concord Railroad, 38 N. H. 242; McCready _v._ Railroad Co., 2 Strobh.
Law R. 356; Cleveland _v._ Grand Trunk Railway Co., 42 Vt. 449; 1 Bl.
Comm. 131; Com. Dig. Action for Negligence (A. 6).

It is true that some of these cases arose under statutes creating a
liability on the part of railroad companies, but that does not affect
the principle. Negligence in the plaintiff, contributing to the loss, is
a defence to an action under the statutes, the same as to an action at
common law. 8 Allen, 440; 6 id. 87.

COLE, J., concurred.

PAINE, J., delivered a dissenting opinion.

                                                    _Judgment affirmed._

Defendants moved for a rehearing.

DIXON, C. J. (Sept. 21, 1871.)...

The learned counsel ... argue that, if logically carried out, the
doctrine would utterly abrogate the rule that a party cannot recover
damages where, by the exercise of ordinary care, he could have avoided
the injury; and so, in the present case, after discovering the fire, the
plaintiff might have leaned on his plough-handles and watched its
progress, without effort to stay it, where such effort would have been
effectual, and yet have been free from culpable negligence. The
distinction is between a known, present, or immediate danger, arising
from the negligence of another,—that which is imminent and certain,
unless the party does or omits to do some act by which it may be
avoided,—and a danger arising in like manner, but which is remote and
possible or probable only, or contingent and uncertain, depending on the
course of future events, such as the future conduct of the negligent
party, and other as yet unknown and fortuitous circumstances. The
difference is that between realization and anticipation. A man in his
senses, in face of what has been aptly termed a “seen danger” (Shearman
and Redfield, § 34, note 1), that is, one which presently threatens and
is known to him, is bound to realize it, and to use all proper care and
make all reasonable efforts to avoid it, and if he does not, it is his
own fault; and he having thus contributed to his own loss or injury, no
damage can be recovered from the other party, however negligent the
latter may have been. But, in case of a danger of the other kind, one
which is not “seen,” but exists in anticipation merely, and where the
injury may or may not accrue, but is probable or possible only from the
continued culpable negligence of another, there the law imposes no such
duty upon the person who is or may be so exposed, and he is not obliged
to change his conduct or the mode of transacting his affairs, which are
otherwise prudent and proper, in order to avoid such anticipated
injuries or prevent the mischiefs which may happen through another’s
default and culpable want of care.

                                                _Rehearing denied._[226]


                              THE BERNINA
               IN THE COURT OF APPEAL, JANUARY 24, 1887.
          _Reported in Law Reports, 12 Probate Division, 58._

Appeal from a judgment of Butt, J. (in the Probate, Divorce, and
Admiralty Division, reported in 11 Prob. Div. 31), on a special case
stated for the opinion of the Court, in three actions brought _in
personam_ against the owners of the steamer Bernina.

Butt, J., held, on the authority of Thorogood _v._ Bryan, 8 C. B. 115,
that the plaintiffs were unable to recover against the defendants, and
dismissed the actions.

The plaintiffs appealed.[227]

LINDLEY, L. J. This was a special case. Three actions are brought in the
Admiralty Division of the High Court by the respective legal personal
representatives of three persons on board the Bushire against the owners
of the Bernina. Those persons were killed by a collision between the two
vessels, both of which were negligently navigated. One of the three
persons (Toeg) was a passenger on the Bushire; one (Armstrong) was an
engineer of the ship, though not to blame for the collision. The third
(Owen) was her second officer, and was in charge of her, and was himself
to blame for the collision. The questions for decision are, whether any,
and if any, which of these actions can be maintained? and if any of them
can, then whether the claims recoverable are to be awarded according to
the principles which prevail at common law, or according to those which
are adopted in the Court of Admiralty in cases of collision.

[The learned judge then decides that although actions under Lord
Campbell’s Act for causing death can now be brought in the Admiralty
Division, yet the assessment of damages is to be governed by the rules
prevailing in common-law actions.]

Having cleared the ground thus far, it is necessary to return to the
statute and see under what circumstances an action upon it can be
supported. The first matter to be considered is whether there has been
any such wrongful act, neglect, or default of the defendants as would,
if death had not ensued, have entitled the three deceased persons
respectively to have sued the defendants. Now, as regards one of them,
namely, Owen, the second officer, who was himself to blame for the
collision, it is clear that, if death had not ensued, he could not have
maintained an action against the defendants. There was negligence on his
part contributing to the collision, and no evidence to show that,
notwithstanding his negligence, the defendants could, by taking
reasonable care, have avoided the collision. There was what is called
such contributory negligence on his part as to render an action by him
unsustainable. It follows, therefore, that his representatives can
recover nothing under Lord Campbell’s Act for his widow and children,
and their action cannot be maintained. The other two actions are not so
easily disposed of. They raise two questions: (1) Whether the passenger
Toeg, if alive, could have successfully sued the defendants; and if he
could, then (2) whether there is any difference between the case of the
passenger and that of the engineer Armstrong. The learned judge whose
decision is under review felt himself bound by authority to decide both
actions against the plaintiffs. The authorities which the learned judge
followed are Thorogood _v._ Bryan, 8 C. B. 115, and Armstrong _v._
Lancashire & Yorkshire Ry. Co., Law Rep. 10 Ex. 47; and the real
question to be determined is whether they can be properly overruled or
not. Thorogood _v._ Bryan, _supra_, was decided in 1849, and has been
generally followed at Nisi Prius ever since when cases like it have
arisen. But it is curious to see how reluctant the Courts have been to
affirm its principle after argument, and how they have avoided doing so,
preferring, where possible, to decide cases before them on other
grounds. See, for example, Rigby _v._ Hewitt, 5 Ex. 240; Greenland _v._
Chaplin, 5 Ex. 243; Waite _v._ North Eastern Ry. Co., E. B. & E. 719. I
am not aware that the principle on which Thorogood _v._ Bryan, _supra_,
was decided has ever been approved by any Court which has had to
consider it. On the other hand, that case has been criticised and said
to be contrary to principle by persons of the highest eminence, not only
in this country, but also in Scotland and in America. And while it is
true that Thorogood _v._ Bryan, _supra_, has never been overruled, it is
also true that it has never been affirmed by any Court which could
properly overrule it, and it cannot be yet said to have become
indisputably settled law. I do not think, therefore, that it is too late
for a Court of Appeal to reconsider it, or to overrule it if clearly
contrary to well settled legal principles.

Thorogood _v._ Bryan, _supra_, was an action founded on Lord Campbell’s
Act. The facts were shortly as follows. The deceased was a passenger in
an omnibus, and he had just got off out of it. He was knocked down and
killed by another omnibus belonging to the defendants. There was
negligence on the part of the drivers of both omnibuses, and it appears
that there was also negligence on the part of the deceased himself. The
jury found a verdict for the defendants, and there does not seem to have
been any reason why the Court should have disallowed the verdict if not
driven to do so on technical grounds. In those days, however, a
misdirection by the judge to the jury compelled the Court to grant a new
trial, whether any injustice had been done or not; and accordingly the
plaintiff moved for a new trial on the ground of misdirection, and it is
with reference to this point that the decision of the Court is of
importance. The learned judge who tried the case told the jury in effect
to find for the defendant if they thought that the deceased was killed
either by reason of his own want of care or by reason of want of care on
the part of the driver of the omnibus out of which he was getting. The
last direction was complained of, but was upheld by the Court. The
_ratio decidendi_ was that if the death of the deceased was not
occasioned by his own negligence it was occasioned by the joint
negligence of both drivers, and that, if so, the negligence of the
driver of the omnibus off which the deceased was getting was the
negligence of the deceased; and the reason for so holding was that the
deceased had voluntarily placed himself under the care of the driver.
Maule, J., puts it thus: “The deceased must be considered as identified
with the driver of the omnibus in which he voluntarily became a
passenger, and the negligence of the driver was the negligence of the
deceased.” This theory of identification was quite new. No trace of it
is to be found in any earlier decision, nor in any legal treatise,
English or foreign, so far as I have been able to ascertain, nor has it
ever been satisfactorily explained. It must be assumed, for the purpose
of considering the grounds of the decision in question, that the
passenger was not himself in fault. Assuming this to be so, then, if
both drivers were negligent, and both caused the injury to the
passenger, it is difficult to understand why both drivers or their
masters should not be liable to him. The doctrine of identification laid
down in Thorogood _v._ Bryan, _supra_, is, to me, quite unintelligible.
It is, in truth, a fictitious extension of the principles of agency, but
to say that the driver of a public conveyance is the agent of the
passengers is to say that which is not true in fact. Such a doctrine, if
made the basis of further reasoning, leads to results which are wholly
untenable, _e. g._, to the result that the passengers would be liable
for the negligence of the person driving them, which is obviously
absurd, but which, of course, the Court never meant. All the Court meant
to say was that for purposes of suing for negligence the passenger was
in no better position than the man driving him. But why not? The driver
of a public vehicle is not selected by the passenger otherwise than by
being hailed by him as one of the public to take him up; and such
selection, if selection it can be called, does not create the relation
of principal and agent or master and servant between the passenger and
the driver, the passenger knows nothing of the driver and has no control
over him; nor is the driver in any proper sense employed by the
passenger. The driver, if not his own master, is hired, paid, or
employed by the owner of the vehicle he drives or by some other person
who lets the vehicle to him. The orders he obeys are his employer’s
orders. These orders, in the case of an omnibus, are to drive from such
a place to such a place and take up and put down passengers; and in the
case of a cab the orders are to drive where the passenger for the time
being may desire to go, within the limits expressly or impliedly set by
the employer. If the passenger actively interferes with the driver by
giving him orders as to what he is to do, I can understand the meaning
of the expression that the passenger identifies himself with the driver,
but no such interference was suggested in Thorogood _v._ Bryan, _supra_.
The principles of the law of negligence, and in particular of what is
called contributory negligence, have been discussed on many occasions
since that case was decided, and are much better understood now than
they were thirty years ago. Tuff _v._ Warman, 5 C. B. (N. S.) 573, in
the Exchequer Chamber, and Radley _v._ London & North Western Ry. Co., 1
App. Cas. 754, in the House of Lords, show the true grounds on which a
person himself guilty of negligence is unable to maintain an action
against another for an injury occasioned by the combined negligence of
both. If the proximate cause of the injury is the negligence of the
plaintiff as well as that of the defendant, the plaintiff cannot recover
anything. The reason for this is not easily discoverable. But I take it
to be settled that an action at common law by A. against B. for injury
directly caused to A. by the want of care of A. and B. will not lie. As
Pollock, C. B., pointed out in Greenland _v._ Chaplin, _supra_, the jury
cannot take the consequences and divide them in proportion according to
the negligence of the one or the other party. But if the plaintiff can
show that although he has himself been negligent, the real and proximate
cause of the injury sustained by him was the negligence of the
defendant, the plaintiff can maintain an action, as is shown not only by
Tuff _v._ Warman, _supra_, and Radley _v._ London & North Western Ry.
Co., _supra_, but also by the well-known case of Davies _v._ Mann, 10 M.
& W. 546, and other cases of that class. The cases which give rise to
actions for negligence are primarily reducible to three classes, as
follows:—

1. A. without fault of his own is injured by the negligence of B., then
B. is liable to A. 2. A. by his own fault is injured by B. without fault
on his part, then B. is not liable to A. 3. A. is injured by B. by the
fault more or less of both combined; then the following further
distinctions have to be made: (_a_) if, notwithstanding B.’s negligence,
A. with reasonable care could have avoided the injury, he cannot sue B.:
Butterfield _v._ Forrester, 11 East, 60; Bridge _v._ Grand Junction Ry.
Co., 3 M. & W. 244; Dowell _v._ General Steam Navigation Co., 5 E. & B.
195; (_b_) if, notwithstanding A.’s negligence, B. with reasonable care
could have avoided injuring A., A. can sue B.: Tuff _v._ Warman,
_supra_; Radley _v._ London & North Western Ry. Co., _supra_; Davies
_v._ Mann, _supra_; (_c_) if there has been as much want of reasonable
care on A.’s part as on B.’s or, in other words, if the proximate cause
of the injury is the want of reasonable care on both sides, A. cannot
sue B. In such a case A. cannot with truth say that he has been injured
by B.’s negligence, he can only with truth say that he has been injured
by his own carelessness and B.’s negligence, and the two combined give
no cause of action at common law. This follows from the two sets of
decisions already referred to. But why in such a case the damages should
not be apportioned, I do not profess to understand. However, as already
stated, the law on this point is settled, and not open to judicial
discussion. If now another person is introduced the same principles will
be found applicable. Substitute in the foregoing cases B. and C. for B.,
and unless C. is A.’s agent or servant there will be no difference in
the result, except that A. will have two persons instead of one liable
to him. A. may sue B. and C. in one action, and recover damages against
them both; or he may sue them separately and recover the whole damage
sustained against the one he sues: Clark _v._ Chambers, 3 Q. B. D. 327,
where all the previous authorities were carefully examined by the late
L. C. J. Cockburn. This is no doubt hard on the defendant, who is alone
sued, and this hardship seems to have influenced the Court in deciding
Thorogood _v._ Bryan, _supra_. In that case the Court appears to have
thought it hard on the defendant to make him pay all the damages due to
the plaintiff, and that it was no hardship to the plaintiff to exonerate
the defendant from liability, as the plaintiff had a clear remedy
against the master of the omnibus in which he was a passenger. But it is
difficult to see the justice of exonerating the defendant from all
liability in respect of his own wrong and of throwing the whole
liability on some one who was no more to blame than he. The injustice to
the defendant, which the Court sought to avoid, is common to all cases
in which a wrong is done by two people and one of them alone is made to
pay for it. The rule which does not allow of contribution among
wrong-doers is what produces hardship in these cases, but the hardship
produced by that rule (if really applicable to such cases as these under
discussion) does not justify the Court in exonerating one of the
wrong-doers from all responsibility for his own misconduct or the
misconduct of his servants. I can hardly believe that if the plaintiff
in Thorogood _v._ Bryan, _supra_, had sued the proprietors of both
omnibuses it would have been held that he had no right of action against
one of them. Having given my reasons for my inability to concur in the
doctrine laid down in Thorogood _v._ Bryan, _supra_, I proceed to
consider how far that doctrine is supported by other authorities. [After
commenting on various authorities]; Thorogood _v._ Bryan, _supra_, and
Armstrong _v._ Lancashire & Yorkshire Ry. Co., _supra_, affirm that,
although if A. is injured by the combined negligence of B. and C., A.
can sue B. and C., or either of them, he cannot sue C. if he, A., is
under the care of B. or in his employ. From this general doctrine I am
compelled most respectfully to dissent, but if B. is A.’s agent or
servant the doctrine is good. In Scotland the decision in Thorogood _v._
Bryan, _supra_, was discussed and held to be unsatisfactory in the case
of Adams _v._ Glasgow & South Western Ry. Co., 3 Court Sess. Cas. 215.
In America the subject was recently examined with great care by the
Supreme Court of the United States in Little _v._ Hackett, 14 Am. Law
Record, 577, 54 Am. Rep. 15,[228] in which the English and American
cases were reviewed, and the doctrine laid down in Thorogood _v._ Bryan,
_supra_, was distinctly repudiated as contrary to sound principles. In
this case the plaintiff was driving in a hackney carriage and was
injured by a collision between it and a railway train on a level
crossing. There was negligence on the part of the driver of the carriage
and on the part of the railway company’s servants, but it was held that
the plaintiff was not precluded from maintaining an action against the
railway company. In this country Thorogood _v._ Bryan, _supra_, was
distinctly disapproved by Dr. Lushington in The Milan, Lush. 388; and
even Lord Bramwell, who has gone further than any other judge in
upholding the decision, has expressed disapproval of the grounds on
which it was based. No text-writer has approved of it, and the comments
in Smith’s Leading Cases are adverse to it (vol. i. p. 266, 6th ed.).
For the reasons above stated, I am of opinion that the doctrines laid
down in Thorogood _v._ Bryan, _supra_, and Armstrong _v._ Lancashire &
Yorkshire Ry. Co., _supra_, are contrary to sound legal principles, and
ought not to be regarded as law. Consequently, I am of opinion that the
decision in Toeg’s and Armstrong’s case ought to be reversed.

Concurring opinions were delivered by LORD ESHER, M. R., and LOPES, L.
J., the former elaborately reviewing the authorities.

Extract from opinion of LOPES, L. J.:—

If, again, the passenger is to be considered in the same position as the
driver or owner, and their negligence is to be imputed to him, he would
be liable to third parties; for instance, in case of a collision between
two omnibuses, where the driver of one was entirely in fault, every
passenger in the omnibus free from blame would have an action against
every passenger in the other omnibus, because every such passenger would
be identified with the driver, and is responsible for his negligence.
Nor, again, in the case just put, could any passenger in the other
omnibus bring an action against the owner of the omnibus in which he was
carried, because the negligence of the driver is to be imputed to the
passenger. If the negligence of the driver is to be attributed to the
passenger for one purpose, it would be impossible to say he is not to be
affected by it for others. Other cases might be put.

The more the decision in Thorogood _v._ Bryan, _supra_, is examined, the
more anomalous and indefensible that decision appears.

The theory of the identification of the passengers with the negligent
driver or owner is, in my opinion, a fallacy and a fiction, contrary to
sound law and opposed to every principle of justice. A passenger in an
omnibus whose injury is caused by the joint negligence of that omnibus
and another, may, in my opinion, maintain an action, either against the
owner of the omnibus in which he was carried or the other omnibus, or
both. I am clearly of opinion Thorogood _v._ Bryan, _supra_, should be
overruled.

Extract from opinion of LORD ESHER, M. R.:—

In Armstrong’s action a point is suggested that he ought not to recover
against the defendants, the owners of the Bernina, because he could not
recover against the owners of the Bushire. He would, it is rightly said,
in an action against the latter, be met by the doctrine of the accident
being occasioned by the negligence of a fellow-servant. The suggestion
would go too far. It would apply where passengers or goods are carried
by railway, or in ship, under a notice limiting the liability of that
railway company or shipowner. It would work manifest injustice by
enabling a person to take advantage of a contract to which he was a
stranger, and for the advantage of which he had given no consideration.
The rule of law is, that a person injured by more than one wrong-doer
may maintain an action for the whole damage done to him against any of
them. There is no condition that he cannot do so unless he might, if he
pleased, maintain an action against each of them. There is no
disadvantage to the one sued, because there is no contribution between
joint wrong-doers. The plaintiff Armstrong is therefore entitled to
judgment for the whole of the damages he may be able to prove, according
to the rule of damages laid down in Lord Campbell’s Act. So in the case
of the plaintiff Toeg. In the case of Owen, the deceased was personally
negligent, so as that his negligence was partly directly a cause of the
injury. He could not have recovered, neither can his administratrix.

                                                       _Appeal allowed._

Affirmed in the House of Lords under the name of Mills _v._ Armstrong;
L. R. 13 App. Cases, 1.[229]


             SHULTZ _v._ OLD COLONY STREET RAILWAY COMPANY
        SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 1, 1907.
             _Reported in 193 Massachusetts Reports, 309._

Tort for personal injuries caused by the collision of an electric car of
defendant with a carriage in which the plaintiff was being driven.

At the trial the evidence for plaintiff tended to show that plaintiff
was being driven in a carriage by her friend B; that B owned the horse
and carriage and was giving her a ride to her home; that plaintiff in no
way interfered with B’s driving, in no manner controlled him or directed
how he should drive, but left the driving to him; and that the
defendant’s car from behind, without any warning, ran into the hind
wheels of the carriage.

Defendant’s evidence tended to show that the collision was due to B’s
negligently turning suddenly across the track.

The judge instructed the jury (_inter alia_) that if B was careless in
driving and if his carelessness contributed to the injury, then
plaintiff was bound by his carelessness and could not recover. To this
instruction plaintiff excepted.

Verdict for defendant.[230]

RUGG, J. This case fairly raises the question as to whether the
negligence of the driver of a vehicle is to be imputed to a guest,
riding with him gratuitously, and personally in the exercise of all the
care which ordinary caution requires.

[The learned judge then elaborately reviewed the authorities; and, both
upon authority and principle, sustained the view reached in The Bernina,
_ante_. He then continued:]

The rule fairly deducible from our own cases, and supported by the great
weight of authority by courts of other jurisdictions, is that where an
adult person, possessing all his faculties and personally in the
exercise of that degree of care, which common prudence requires under
all the attending circumstances, is injured through the negligence of
some third person and the concurring negligence of one with whom the
plaintiff is riding as guest or companion, between whom and the
plaintiff the relation of master and servant or principal and agent, or
mutual responsibility in a common enterprise, does not in fact exist,
the plaintiff being at the time in no position to exercise authority or
control over the driver, then the negligence of the driver is not
imputable to the injured person, but the latter is entitled to recover
against the one through whose wrong his injuries were sustained.
Disregarding the passenger’s own due care, the test whether the
negligence of the driver is to be imputed to the one riding depends upon
the latter’s control or right of control of the actions of the driver,
so as to constitute in fact the relation of principal and agent or
master and servant, or his voluntary, unconstrained, non-contractual
surrender of all care for himself to the caution of the driver.[231]

Applying this statement of the law to the present case, the result is
that the plaintiff would not be entitled to recover if in the exercise
of common prudence she ought to have given some warning to the driver of
carelessness on his part, which she observed or might have observed in
exercising due care for her own safety,[232] nor if she negligently
abandoned the exercise of her own faculties and trusted entirely to the
vigilance and care of the driver.[233] She cannot hide behind the fact
that another is driving the vehicle in which she is riding, and thus
relieve herself of her own negligence. What degree of care she should
have exercised, in accepting the invitation to ride, or in observing and
calling to the attention of the driver perils unnoticed by him, depends
upon the circumstances at the time of the injury. On the other hand, she
would be permitted to recover if, in entering and continuing in the
conveyance, she acted with reasonable caution, and had no ground to
suspect incompetency and no cause to anticipate negligence on the part
of the driver, and if the impending danger, although in part produced by
the driver, was so sudden or of such a character as not to permit or
require her to do any act for her own protection.

In view of the facts of the case the requests for rulings presented by
the plaintiff were not correct propositions of law and were properly
refused, but the portion of the charge excepted to failed to express
with accuracy and fulness the rights of the plaintiff and the liability
of the defendant to her. The jury were instructed to treat the plaintiff
as identified with the driver, and burdened with his negligence. For the
reasons we have stated and under the circumstances disclosed, this was
not an accurate statement of the law.

                                            _Exceptions sustained._[234]


                     KOPLITZ _v._ CITY OF ST. PAUL
                SUPREME COURT, MINNESOTA, JUNE 6, 1902.
                _Reported in 86 Minnesota Reports, 373._

Action in the District Court for Ramsey County to recover $2040 for
personal injuries caused by a defective street in defendant city. The
case was tried before Brill, J., and a jury, which rendered a general
verdict in favor of plaintiff for $300. The jury also returned a special
verdict, in answer to the specific question submitted by the court, that
the driver of the vehicle from which plaintiff was thrown was guilty of
negligence which contributed to the injury. From a judgment entered
pursuant to the general verdict, defendant appealed.

START, C. J. The plaintiff was one of a party of twenty-six young people
who celebrated the Fourth of July last by a picnic at Lake Johanna,
about twelve miles from St. Paul. The picnic was a mutual affair, in
that the party consisted of about an equal number of young men and young
women, each lady being invited and escorted by a gentleman, for whom and
herself she furnished lunch; but at meal time the several lunches were
merged, and became a common spread. The ladies had nothing to do with
the matter of the transportation of the party to and from the lake. This
was the exclusive business of the gentlemen, with which the ladies had
no more to do than the young men had with the lunches. The gentlemen
selected one of their number (Mr. Gibbons) to manage the transportation
of the party. He hired for this purpose a long covered omnibus, drawn by
four horses, and a driver and assistant, to drive the party to the lake
and return. The party were driven to and from the lake in this
conveyance, with the hiring of which, or the payment therefor, or the
control thereof, the ladies, including the plaintiff, had nothing to do,
other than may be inferred, if at all, from the fact that they were
members of the picnic party. On the return trip, when the conveyance had
reached Dale Street, in the city of St. Paul, it was tipped over, by
reason of an embankment therein, whereby the plaintiff was injured.

At the time of the accident all of the party were riding inside of the
omnibus, except Mr. Gibbons, who was outside, on the driver’s seat, with
the driver and his assistant, and was then driving the horses; but this
fact was unknown to the plaintiff or any of the party inside of the
conveyance. The negligence of the city in the care of the street was the
proximate cause of the plaintiff’s injury, but the negligence of Mr.
Gibbons in driving the horses contributed thereto. The plaintiff was
personally free from any negligence in the premises. This action was
brought by the plaintiff to recover damages on account of such injuries,
and the jury returned a verdict for $300, and a special verdict that Mr.
Gibbons was guilty of contributory negligence in driving the conveyance.
Thereupon the defendant moved for judgment in its favor upon the special
verdict, notwithstanding the general verdict for the plaintiff. The
motion was denied, and judgment entered for the plaintiff, from which
the defendant appealed to this court.

The only question for our decision is whether the negligence of Mr.
Gibbons must be imputed to the plaintiff, and a recovery denied her for
that reason. The rule as to imputed negligence, as settled by this court
in cases other than those where the parties stand in the relation of
parent and child or guardian and ward, is that negligence in the conduct
of another will not be imputed to a party if he neither authorized such
conduct, nor participated therein, nor had the right or power to control
it. If, however, two or more persons unite in the joint prosecution of a
common purpose under such circumstances that each has authority,
expressed or implied, to act for all in respect to the control of the
means or agencies employed to execute such common purpose, the
negligence of one in the management thereof will be imputed to all the
others. Follman _v._ City of Mankato, 35 Minn. 522, 29 N. W. 317;
Flaherty _v._ Minneapolis & St. L. Ry. Co., 39 Minn. 328, 40 N. W. 160;
Howe _v._ Minneapolis, St. P. & S. Ste. M. Ry. Co., 62 Minn. 71, 64 N.
W. 102; Johnson _v._ St. Paul City Ry. Co., 67 Minn. 260, 69 N. W. 900;
Finley _v._ Chicago, M. & St. P. Ry. Co., 71 Minn., 471, 74 N. W. 174;
Wosika _v._ St. Paul City Ry. Co., 80 Minn. 364, 83 N. W. 386; Lammers
_v._ Great Northern Ry. Co., 82 Minn. 120, 84 N. W. 728.

It is too obvious to justify discussion that the plaintiff in this case
neither expressly nor impliedly had any control over the drivers of the
omnibus, or either of them, or of Mr. Gibbons, and that he and she were
not engaged in a joint enterprise in any such sense as made her so far
responsible for his negligence in driving the horses that it must be
imputed to her. The claim of the defendant to the contrary is
unsupported by the facts as disclosed by the record.

                                               _Judgment affirmed._[235]


               FECHLEY _v._ SPRINGFIELD TRACTION COMPANY
           ST. LOUIS COURT OF APPEALS, MISSOURI, MAY 8, 1906.
            _Reported in 119 Missouri Appeal Reports, 358._

Error to Circuit Court, Greene County. Verdict and judgment for
defendant. Plaintiff appeals.

Appellant, Fechley, was damaged by the collision of a street car with a
one-horse buggy in which he was riding. The buggy was owned and driven
by Pierce, at whose invitation Fechley was riding. Pierce, upon his own
statement, was negligent in not seasonably looking, or taking proper
precautions, to ascertain if a car was approaching before he attempted
to drive across two parallel railway tracks. The facts as to the alleged
negligence of Fechley are sufficiently stated in the extracts from the
opinion, given below.

One error assigned was the submission to the jury of the issue of
appellant’s contributory negligence.[236]

GOODE, J. [After stating the case; and holding that the negligence of
Pierce would not bar Fechley from recovering against the company if the
motorman’s negligence was in part the proximate cause of the collision.]

Appellant himself must have been free from negligence proximately
contributing to his injury or he is entitled to no damages, granting
that Pierce’s fault does not preclude a recovery and that the motorman’s
fault was a factor in bringing about the casualty. Few, if any, courts
have held that an occupant of a vehicle may entrust his safety
absolutely to the driver of a vehicle, regardless of the imminence of
danger or the visible lack of ordinary caution on the part of the driver
to avoid harm. The law in this state, and in most jurisdictions, is that
if a passenger who is aware of the danger and that the driver is remiss
in guarding against it, takes no care himself to avoid injury, he cannot
recover for one he receives. This is the law not because the driver’s
negligence is imputable to the passenger, but because the latter’s own
negligence proximately contributed to his damage. Marsh _v._ Railroad,
104 Mo. App. 577, 78 S. W. 284; Dean _v._ Railroad, 129 Pa. St. 514;
Township of Crescent _v._ Anderson, 114 Pa. St. 643; Koehler _v._
Railroad, 66 Hun, 566; Hoag _v._ Railroad, 111 N. Y. 179; Brickell _v._
Railroad, 120 N. Y. 290; 2 Thompson, Negligence, sec. 1620; Beach, Con.
Neg., sec. 115; 3 Elliott, Railroads, sec. 1174.

[After discussing the pleadings.]

Therefore the question occurs whether, on the testimony for appellant,
the court would have been justified in holding him guilty of
contributory negligence; and we hold that such a ruling would have been
proper. Appellant swore he knew cars were operated east and west on
Commercial Street, but did not know there were double tracks on it. The
two tracks were right before his eyes as he drove down Commercial Street
and as Pierce turned the horse to cross them. He said he could have
looked out of the buggy by merely pushing the curtain back with his
hand. He was not bound to do this if Pierce’s conduct was of such a
character as to induce a reasonably prudent man to think there was no
danger in driving across the tracks. But Fechley did not have the right
to rely on the precaution taken by Pierce, unless, under the
circumstances, a man of ordinary prudence would have relied on it. As we
have pointed out, the testimony shows Pierce took no precaution which
could be effective. He did not stop at all; nor did he look for a car
until the horse was stepping over the south rail of the north track. The
two tracks were less than five feet apart and the buggy moved but a few
feet after Pierce looked, before the car struck it near the front of the
rear wheels. Meanwhile Fechley was leaning back in the buggy, though he
must have seen they had crossed the south track and were advancing
diagonally on the north one, and, if he was paying any attention to the
situation, must have known that a car was likely to come along on that
track from the east. Pierce’s behavior was so grossly careless, that
Fechley was imprudent in doing nothing personally to insure his safety.
The essential fact is that Pierce did not look in time, as Fechley knew,
or, in reason, ought to have known. Therefore Fechley should have
stopped Pierce or told him to look for a car, or have looked himself,
before they had advanced so far into danger. It is palpable from
appellant’s own testimony that he was giving no heed to his safety, but
either was relying blindly on Pierce, or, for some reason, was not aware
of the proximity of the tracks.

[After stating authorities.]

On the testimony for appellant the case strikes us as one of concurrent
negligence; for the buggy had not gone more than from six to twelve feet
after Pierce looked for a car, until the collision occurred. There is an
inconsistency in appellant’s theory. He would have it that there was an
appearance of danger of a collision which should have warned the
motorman, as soon as the buggy was turned to go over the tracks and
before Pierce looked for a car, but that appellant himself was not
negligent in failing to guard against this apparent danger. That
argument for appellant emphasizes and makes clear his own carelessness.
The counsel in the case give several close calculations in support of
their respective theories, and appellant’s attorneys endeavor to
demonstrate that the motorman could have stopped the car before it
reached the buggy, if he had begun to get control of it when the horse
turned to go over the south track. They insist that appellant, though he
may have been guilty of contributory negligence, was entitled to a
finding by the jury, under proper instructions, on the issue of whether
or not the motorman could have prevented the accident after the turn, it
being assumed that the danger of a collision then became apparent. The
court submitted that issue by a charge which was extremely favorable to
appellant.

[Omitting remainder of opinion.]

                                                    _Judgment affirmed._


               NEWMAN _v._ PHILLIPSBURG HORSE CAR COMPANY
              SUPREME COURT, NEW JERSEY, JULY TERM, 1890.
             _Reported in 52 New Jersey Law Reports, 446._

The plaintiff was a child two years of age; she was in the custody of
her sister, who was twenty-two; the former, being left by herself for a
few minutes, got upon the railroad track of the defendant, and was hurt
by the car. The occurrence took place in a public street of the village
of Phillipsburg. The carelessness of the defendant was manifest, as at
the time of the accident there was no one in charge of the horse drawing
the car, the driver being in the car collecting fares.

The Circuit judge submitted the three following propositions to this
Court for its advisory opinion, viz.:—

_First._ Whether the negligence of the persons in charge of the
plaintiff, an infant minor, should be imputed to the said plaintiff.

_Second._ Whether the conduct of the persons in charge of the plaintiff
at the time of the injury complained of, was not so demonstrably
negligent that the said Circuit Court should have nonsuited the
plaintiff, or that the Court should have directed the jury to find for
the defendant.

_Third._ Whether a new trial ought not to be granted, on the ground that
the damages awarded are excessive.

Argued at February term, 1890, before BEASLEY, C. J., and SCUDDER, DIXON
and REED, JJ.

The opinion of the court was delivered by—

BEASLEY, C. J. There is but a single question presented by this case,
and that question plainly stands among the vexed questions of the law.

The problem is, whether an infant of tender years can be vicariously
negligent, so as to deprive itself of a remedy that it would otherwise
be entitled to. In some of the American states this question has been
answered by the Courts in the affirmative, and in others in the
negative. To the former of these classes belongs the decision in
Hartfield _v._ Roper & Newell, reported in 21 Wend. 615. This case
appears to have been one of first impression on this subject, and it is
to be regarded, not only as the precursor, but as the parent of all the
cases of the same strain that have since appeared.

The inquiry with respect to the effect of the negligence of the
custodian of the infant, too young to be intelligent of situations and
circumstances, was directly presented for decision in the primary case
thus referred to, for the facts were these: The plaintiff, a child of
about two years of age, was standing or sitting in the snow in a public
road, and in that situation was run over by a sleigh driven by the
defendants. The opinion of the Court was, that as the child was
permitted by its custodian to wander into a position of such danger it
was without remedy for the hurts thus received, unless they were
voluntarily inflicted, or were the product of gross carelessness on the
part of the defendants. It is obvious that the judicial theory was, that
the infant was, through the medium of its custodian, the doer, in part,
of its own misfortune, and that, consequently, by force of the
well-known rule, under such conditions, he had no right to an action.
This, of course, was visiting the child for the neglect of the
custodian, and such infliction is justified in the case cited in this
wise: “The infant,” says the Court, “is not _sui juris_. He belongs to
another, to whom discretion in the care of his person is exclusively
confided. That person is keeper and agent for this purpose; in respect
to third persons his act must be deemed that of the infant; his neglects
the infant’s neglects.”

It will be observed that the entire content of this quotation is the
statement of a single fact, and a deduction from it; the premise being,
that the child must be in the care and charge of an adult, and the
inference being that, for that reason, the neglects of the adult are the
neglects of the infant. But surely this is, conspicuously, a _non
sequitur_. How does the custody of the infant justify, or lead to, the
imputation of another’s fault to him? The law, natural and civil, puts
the infant under the care of the adult, but how can this right to care
for and protect be construed into a right to waive, or forfeit, any of
the legal rights of the infant? The capacity to make such waiver or
forfeiture is not a necessary, or even convenient, incident of this
office of the adult, but, on the contrary, is quite inconsistent with
it, for the power to protect is the opposite of the power to harm,
either by act or omission. In this case in Wendell it is evident that
the rule of law enunciated by it is founded in the theory that the
custodian of the infant is the agent of the infant; but this is a mere
assumption without legal basis, for such custodian is the agent, not of
the infant, but of the law. If such supposed agency existed, it would
embrace many interests of the infant, and could not be confined to the
single instance where an injury is inflicted by the coöperative tort of
the guardian. And yet it seems certain that such custodian cannot
surrender or impair a single right of any kind that is vested in the
child, nor impose any legal burthen upon it. If a mother travelling with
her child in her arms should agree with a railway company, that in case
of an accident to such infant by reason of the joint negligence of
herself and the company the latter should not be liable to a suit by the
child, such an engagement would be plainly invalid on two grounds:
_first_, the contract would be _contra bonos mores_, and _second_,
because the mother was not the agent of the child authorized to enter
into the agreement. Nevertheless, the position has been deemed
defensible that the same evil consequences to the infant will follow
from the negligence of the mother, in the absence of such supposed
contract, as would have resulted if such contract should have been made
and should have been held valid.

In fact, this doctrine of the imputability of the misfeasance of the
keeper of a child to the child itself, is deemed to be a pure
interpolation into the law, for until the case under criticism it was
absolutely unknown; nor is it sustained by legal analogies. Infants have
always been the particular objects of the favor and protection of the
law. In the language of an ancient authority this doctrine is thus
expressed: “The common principle is, that an infant in all things which
sound in his benefit shall have favor and preferment in law as well as
another man, but shall not be prejudiced by anything in his
disadvantage.” 9 Vin. Abr. 374. And it would appear to be plain that
nothing could be more to the prejudice of an infant than to convert, by
construction of law, the connection between himself and his custodian
into an agency to which the harsh rule of _respondeat superior_ should
be applicable. The answerableness of the principal for the authorized
acts of his agent is not so much the dictate of natural justice as of
public policy, and has arisen, with some propriety, from the
circumstances, that the creation of the agency is a voluntary act, and
that it can be controlled and ended at the will of its creator. But in
the relationship between the infant and its keeper, all these decisive
characteristics are wholly wanting. The law imposes the keeper upon the
child who, of course, can neither control or remove him, and the
injustice, therefore, of making the latter responsible, in any measure
whatever, for the torts of the former, would seem to be quite evident.
Such subjectivity would be hostile, in every respect, to the natural
rights of the infant, and, consequently, cannot, with any show of
reason, be introduced into that provision which both necessity and law
establish for his protection. Nor can it be said that its existence is
necessary to give just enforcement to the rights of others. When it
happens that both the infant and its custodian have been injured by the
coöperative negligence of such custodian and a third party, it seems
reasonable, at least in some degree, that the latter should be enabled
to say to the custodian, “You and I, by our common carelessness, have
done this wrong, and, therefore, neither can look to the other for
redress;” but when such wrong-doer says to the infant, “Your guardian
and I, by our joint misconduct, have brought this loss upon you,
consequently you have no right of action against me, but you must look
for indemnification to your guardian alone,” a proposition is stated
that appears to be without any basis either in good sense or law. The
conversion of the infant, who is entirely free from fault, into a
wrong-doer, by imputation, is a logical contrivance uncongenial with the
spirit of jurisprudence. The sensible and legal doctrine is this: An
infant of tender years cannot be charged with negligence; nor can he be
so charged with the commission of such fault by substitution, for he is
incapable of appointing an agent, th