KF 5?o Cornell UniversitxJLa^ LibrarV^ • v. rrreTMoak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS KF 1284.S25"'" """'*""^ ""'"^ ^.im!!?™* "P"" "^^ '^^ applicable to ne 3 1924 018 741 490 ajnrn^ll Slam ^rl^flnl SItbrary Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018741490 A TREATISE UPON THE LAW APPLICABLE TO JSTEGLIGElSrOE By THOMAS WILLIAM .g^IUJDERS OF THE UIDDLE TEMPLE, BABBIBTEB-AT-LAW WITH NOTES OF AMERICAN CASES By HENEY HOOPEE CINCINNATI ROBERT CLARKE & CO 1872 Entered according to Act of Congress, In the year one thousand eight hundred and seventy-two, By ROBERT CLARKE & CO., In the office of the Librarian of Congress, at Washington. PREFACE TO THE AMERICAN EDITION. Ik supplying notes and references to the cases decided in the American courts, no attempt has been made to give all, or even the greater part, of the numerous decisions rendered by our courts on this branch of the law ; but in view of the elementary character of this work, I have contented myself with referring the reader to those leading cases only which illustrate or deny the doctrine laid down in the text. The rulings and judgments upon the Law of Negligence are already very numerous and increasing rapidly ; but the principles which underlie them are contained in a very few cases. A chapter has also been added to the English work on the subject of Telegraphs, the author having omitted to include this subject in his treatise. H. H. Cincinnati, April 5, 1872. PREFACE TO THE ENGLISH EDITION. The vast increase which of late years has taken place in the number of actions brought in our courts for compensation for injuries occasioned by negligence, and the somewhat obscure state of the law in many particulars applicable to this description of litigation, have induced the author of the following pages to endeavor to supply, in a compendious and convenient shape, a volume by which a ready reference may be obtained to the authorities upon the subject. There is, perhaps, no branch of the law which, within so short a period, has so grown and developed itself as that which has spread over the subject of negligence. Few sittings take place at Nisi Prius at which several actions for negligence are not brought to trial, whilst there is scarcely any description of legal contention in which points of difficulty more frequently arise. Under such circumstances, it is certainly a matter justify- ing some surprise that no treatise devoted to the elucidation of the law applicable to this head of litiga'tion should heretofore have been presented to the public. To supply such defi(^iency the author has ventured to com- pile the following pages ; and should his efforts (inefficient and incomplete as they may be) in any way assist in facilitating a reference to the law upon the subject, he will feel that he will have accomplished a task not altogether devoid of utility. I Cloisters, Temple, iist November, 1870. CONTENTS. Introduction. CHAPTER I. AS TO THE GENERAL LlABILITy FOR NEGLIGENCE. Sect. i. — ^As to the degree of negligence i 2. — The proximate cause, direct and consequential injury. 7 3. — Inevitable accident 11 CHAPTER II. AS TO THE EXISTENCE OF, NEGLIGENCE. Sect. i. — What facts are not evidence of negligence iz 2. — What facts are evidence of negligence aa 3. — Of contributory negligence 55 CHAPTER III. NEGLIGENT USE OF PROPERTY AND PERSONAL NEGLIGENCE. Sect. i. — Negligent use of real property 61 2. — Negligent management of premises 70 3. — Negligent management of docks and canals 81 ^. — Negligent management of public wrorks 8j 5. — Negligence in the keeping of animals 92 VI CONTENTS. CHAPTER IV. LIABILITY OF EMPLOYERS FOR THE NEGLIGENCE OF, AND ACCIDENTS TO, THOSE WHOM THEY EMPLOY. PAGE Sect. i. — Liability of employers for the negligence of those whom they employ 103 z. — When not liable for the negligence of their servants... ill 3. — Liability for injuries by the negligence of those in their employment 120 4. — Liability of masters for injuries received by their ser- vants through the negligence of fellow-servants ia8 CHAPTER Y. AS TO NEGLIGENCE BY PARTICULAR PDRSONS. Sect. i. — Attorneys 145 2. — Bailees , 154 3. — Carriers 161 4, — Innkeepers 199 5. — Medical men zo6 6. — Principal and agent ; negligence by agent 208 CHAPTER VL Compensation for death by accident 213 CHAPTER VII. Damages, measure of, for negligence 224 CHAPTER VIIL TELEGRAPH COMPANIES. Liability of telegraph companies foi negligence 240 TABLE OF CASES. Adams V. Lancashire and Yorkshire R. W. Co. 27. Albany, Mayor of, v. Carniff, 82 Alden v. N. Y. Cent. R. R. Co. 21. Alger V. Mississippi R. R. Co. 74. Alger V. Lowell, 57. Allday V. Great Western R. W. Co. 198. Alsop V. Yates, 1 24. Althorf V. Wolfe, 115. American Ex. Co. v. Perkins, 166. American Law Rev. 12. Andrews v. Buckton, 9. Armistead v. Wilde, 201. Ash V. Penn. R. R. Co. 180. Ashworth v. Stanwix, iz6, 128. Aston V. Heaven, 11, 18, 162. Austin V. Manchester, etc., R. W. Co. 212. Averett v. Murrell, 41. Bagnall v. London and Northwest- ern R. W. Co. 10. Bailey v. Mayor, etc. 86. Baker v. Day, 204. Baldwin v. American Ex. Co. 180. Baldwin v. U. S. Tel. Co. 246, 247. Bard v. Yohn, 1 1 2. Barnes v. Wood, 65. Bartlett v. Steam. Phil. 181. Bartonshill Coal Co. v. McGuire, 126, 138. Bartonshill Coal Co. v. Reid, 126. Batson v. Donovan, 166. Baxendale v. Hart, 177. Bazin v. Steam Co. 236, Beal V. South Devon R. W. Co. 198. Beauchamp v. Powley, 156, Beck V. Dyson, 96. Becher v. Great Eastern R. W. Co. 187. Behrens v. Great Northern R. W. Co. 177. Bellefontaine v. Snyder, 58. Bilbee v. London, Brighton and South Coast R. W. Co. 51. Binics V. South Yorkshire R. W. Co. 6;. Bird V. Great Northern R. W. Co. '4, 45- Birney v. New York and Washing- ton R. W. Co. 245. Bizzell V. Booker, 16 Ark. Black V. Baxendale, 176. Blake v. Great Western R. W. Co. 74- Blake v. Midland R. W. Co. 215. Blake v. Thirst, 119. Blossom V. Dodd, 179. Blyth V. Birmingham Water Co. 35. Blyth V. Topham, 62, 65. Bodenham v. Bennett, 176. Boland v. Missouri R. R. Co. 11. Bolch v. Smith, 79. Bonomi v. Backhouse, 68. Boss V. Litton, 5. Boston V. Donovan, 170. Bracy v. Carter, 149. Bradley v. Waterhouse, 166, 176. Brass v. Maitland, 3. Breese v. U. S. Tel. Co. 245. Vlll TABLE OF CASES. ■4- Briddon v. Great Northern R. W. Co. 191. Bridge v. Grand Junction R. W, Co. 56. Bridge v. Nortli London R. W. Co. 28, 30. Briggs V. Oliver, 47. Bringloe v. Morrice, 1 57. Broad wood v. Granara, 201. Brook V. Copeland, 93. Brooke v. Pickwick, 162. ^ Brown v. Accrington Cotton Co. 124. Brown v. Kendall, 11. Buckley v. Leonard, 92. Buffit V. Troy and B. R. R. Co. 74- Bulmer V. Oilman, 146. Burgess v. Clements, 202. Butterfield v. Forrester, 57. Burke v. Manchester, Sheffield and Lincolnshire R. W. Co. 47, Burrows v. March Gas Co. 9. Bush V. Brainard, 63. Bush V. Steinman, 104. Butcher v. South Wales R. W. Co. 182. Butler V. Hunter, 117. Buth V. Great Western R. W. Co. 176. Buxton V. Northeastern R. W. Co. 74- Byrne v. Boadle, 47. Cahillv. London and N'orthwestern R. W. Co. 182. Cairns v. Robbins, 19;. Caldwell V. Hunter, 147. Caledonia R. W. Co. v. Sprott, 68. Calkins v. Barger, 11, 41. Calye's Case, 201, 204. Camp V. The Western U. Tel. Co. 245. Campbell v. Brown, 92. Canning v. Williamstown, 239. Card V. Case, 96. Carman v. Steub. and L R. R. Co. 117. Carpue v. London and Brighton R. R. Co. 13,44. Cary v. Thames Iron Works Co. 251. Cashill V. Wright, 202. Cassidy v. Stockbridge, 57. Central Ohio R. R. Co. v. Law- rence, 74. Chapman v. Rothwell, 71, 73. Charlwood v. Greig, 93. Chicago and Alton R. R. Co. v. Poudrons, Chickering v. Fowler, 180. Chippendale v. Lancashire and Yorkshire R. W. Co. 180. Chown V. Parrott, 151. Christie v. Griggs, 18. Cincinnati v. Stone, 117. City of Chicago v. Starr, 34, City of Chicago v. Mayor, 58. Clay V. Willan. 166. Clayards v. Dethick, 57. Cleveland, etc., R. R. Co. v. Elliott, 74- Cleveland, C. and C. R. R. Co. v. Kearney, 133. Cockle V. London and Southeastern R. W. Co. 31. Coe V. Wise, 82. Coggs V. Bernard, 17, 154, 212. Colchester, Mayor of, v. Brooke, 59, 60. Cole V. Goodwin, 180. Collard v. Southeastern R. W. Co. 236. Collins V. Middle Level Commis- sioners, 10. Colt V. McMicken, 165. Combs V. N. B. Cord Co. 128 Common v. Thompson, 211 Conn V. Bower, 211. Connolly v. Poillon, 1 25. Corbin v. A. M. 115. Corby v. Hill, 63. Cornman v. Eastern Counties R. W. Co. 22. Corry v. The Thames Iron Works Co. 235. Cortelyon v. Lansing, 1.59. TABLE OF CASES. IX Cotton V. Wood, 12, 13, 22. Couch V. Steel, 127. Cowley V. Sunderland, Mayor of, 76. Cox V. Burbridge, 67, 92. Cox V. Leach, 149. Crafter v. Metropolitan R. W. Co. 24. Craig V. Chambers, 208. Craig V. Watson, 1 50. Croft V. Alison, 104. Crofts V. Waterhouse, 11, 18. Crouch V. London and Northwest- ern R. W. Co. 167. Crouch V. Great Western R. W. Co. 192, 197. Curtis V. Mills, 93. Curtis V. Roch, 239. Cuthbertson v. Parsons, 116. Dalton V. Southeastern R. W. Co. 216, 222. Dalyell v. Tyrer, 114. Daniel v. Metropolitan R. W. Co. 13- Dartnall v. Howard, 148, Davey v. Mason, 168. Davidson v. Graham, 179. Davies v. Mann, 59. Davis V. Garrett, 176. Davy V. Chamberkine, 160, Dawson V. Chamney, 203. Dawson V. Manchester, Sheffield and Lincolnshire R. W. Co. 14. Dayton v. Pease, 85. Dean v. Braithwaite, 114. Dean v. Keat, 158. Dearborn v. Dearborn, 154. Degg V. Midland R. W. Co. 2, 141. Decker v. Gammon, 68. Denny v. N. Y. C. R. R. Co. 164. Dickerson v. Winchester, 204. Dickinson v. Southeastern R. W. Co. 223. Dimmock v. North Staffordshire R. W. Co. 41. Dixon V. Bell, 2. Dodd V. Holme, 69. Doe V. Laming, 200. Donaldson v. Haldane, 148. Doorman v. Jenkins, 155, 212. Duckworth v. Johnson, 215. Dusar v. Murgatroyd, 228. Dygert v. Bradley, 11. Dynen v. Leach, 123, 215 Eastern Counties R. W. Co. v. Broom, no. Eckert v. Long Island R. R. Co. 57- Edwards v. Halinder, 78. Ellis V. American Tel. Co. 244. Ellis V. Sheffield Gas Consumers Co. 87. Elwood V. Western Union Tel. Co. 241. Emblem v. Myers, 226. Evansville, etc., R. R. Co. v. Dun- can, 28. Express Co. v. Kountze, 165. Fair v. London and Northwestern R. W. Co. 237. Farmers and Mechanics' Bank v. Cham. T. Co. 179, 197. Farn worth v. Packwood, 201. Farrant v. Barnes, 3. Farrell v. Boston R. R. Corpora- tion, 134. Fawcett v. York and North Mid- land R. W. Co. 54. Feltham v. England, 141. Fennimore v. New Orleans, 86. Ficken v. Jones, 94. Field V. Gibbs, 147. First National Bank, Greenfield, v. M. and C. R. R. Co. 185. Fisk V. Chapman, 164, rSo. Fisk V. Newton, 180. Flower v. Adam, 56. Flower v. Penn. R. R. Co. 141. Foley V. Wyeth, 69. Ford V. London und .Southwestern R. W. Co. 44. Fordham v. London, Brighton and South Coast R. W. Co. 49. Forward v. Bittard, 165. TABLE OF CASES. Foster v. Essex Bank, 156. Foy V. London, Brighton and South Coast R. W. Co. 26. Francis v. Cockrell, 50. Frankland v. Cole, 149. Franklin v. Southeastern R. W. Co. 216, 222. ,Fray v. Vowles, 152, 153. Freemantle v. London and North- western R. W. Co. 40, 54, Fuller V. Naugatuck R. R. Co. 31. Gallagher v. Humphrey, 63. Gallagher v. Piper, 139. Gallagher v. Thompson, zo8. Gantret v. Egerton, 63. Garnett v. Willan, 175. Garside v. Proprietors of Trent and Mersey Navigation, 194, 195. Gee V. Lancashire and Yorkshire R. W. Co. 224, 231. George v. Skivington, 208. Gerhard v. Bates, 10. Gibbon V. Paynton, 166. Gibbs V. Liverpool Docks, Trustees of, 82. Gibson v. Preston, Mayor of, 90. Gibson V. The Pacific R. R. Co. 127. Gilbert v. Dale, 167, 169. Gilbert v. Williams, 147. Gillaume v. Ham. and Am. P. Co. 180. Gillett V. Western R. R. Co. 226. Gilpin V. Consequa, 228. Gladman v. Johnson, 99. Glassey v. Hestonville, 58. Goddard v. Grand Trunk R. R. Co. 1 10, 227. Godefroy v. Dalton, 146. Godefroy v. Jay, 1 50. Goff V. Great Northern R. W. Co. 108. Gold Hunter, 236. Golden v. Manning, 180. Gonzales v. N. Y. and H. R. R. Co. 37. Goodman v. Walker, 147. Gordon v. Hutchinson, 162. Graham v. Davis, 180. Grant v. City of Brooklyn, 239. Great Northern R. W. Co. v. Mor- ville, 179. Great Northern R. W. Co. v. Shep- herd, 183, 184. Great Northern R. W. Co. v. Tay- lor, 189. Great Western R. W. Co. v. Blake, 74- Great Western R. W. Co. v. Red- mayne, 237. Great Western R. JV. Co. v. Ris- nell, 177. Green v. London General Omnibus Co. 108. Greenland v. Chaplin, lo^ 59: Griffiths v. Lee, 167. Grote V. Chester and Holyhead R. W. Co. 21. Groucott V. Williams, 65. Guillaume v. Ham. and A. P. Co. 180. Guille V. Swan, 2. Hadley v. Bazendale, 224, 231, 236. Hales V. London and Northwestern R. W. Co. 191, 234. Hamlin v. Great Northern R. W. Co. 227. Hammack v. White, 11, 12. Hammersmith R. W. Co. v. Brand, 40. Hancke v. Hooper, 207. Hardcastle v. South Yorkshire R. W. Co. 61, 66. Haring v. N. Y. and E. R. R. Co. 5S- Harr v. Snyder, 158. Harrold v. Great Western R. W. Co. 27. Hart V. Frame, 145. Harter v. Morris, 147. Hartfield v. Roper, i. Hartnall v. Ryde Commissioners, 87. Havtrkins v. Harwood, 149. TABLE OF CASES. XI Hayne v. Rhode, 148. Healing v. Catral, 1 60. Hearn v. London and Southwestern R. W. Co. 166. Hough V. London and Northwest- ern R. W Co. 196. Hinton V. Dibdin, 1 7 J. Holby V. Boston Gas L. Co. 56. Hole V. Sittingbourne R, W. Co. 87, 118. Holker V. Parker, 152. Holmes V. Clarke, 127. Holmes V. Northeastern R. W. Co. 48. Hopping V. Quin, 147. Hounsell V. Smith, 63. Howard v. Babcock, i 57. Howell V. Young, 148. Howland v. Vincent, 62. Hudson V. Baxendale, 191, 194. Hudson V. Roberts, 94. Hudston V. Midland R. W. Co. 185. Huggy V. Field, 104. Hughes V. Quentin, 225. Huntley v. Bulwer, 149. Huston V. Mitchell, 152. Hutchinson v. York, Newcastle and Berwick R. W. Co. 128. Hyatt V. Taylor. 206. Hyde v. Trent and Mersey Navi- gation Co. 180, 196. H. and St. J. R. R. Co. V. Swift, 187. Illidge V. Goodwin, 9. m. C. R. R. Co. V. McClelland, 39- 111. C. R. R. Co. V. Copeland, 185, 197. 111. C. R. R. Co. V. Mills, 44. Indermauer v. Dames, 70. Ingate v. Christie, 167. Ingalls V. Bells et al. 21. Ireson v. Pearman, 147. Israel v. Clarke, 45. Jackson V. Smithson, 95. Jenkins v. Turner, 93 Joel V. Morrison, 112. John V. Bacon, 74. Jones V. Boyce, 7. Jones V. Festiniog R. W. Co. 54. Jones V. Perry, 93. Joliet V. Verley, 89. ludge V. Cox, 99. Judson V. W. R. R. Co. 180. Kay V. Penn. R. R. Co. 9. Kearney v. London, Brighton and South Coast R. W. Co. 49. Keiwhackcjr v. Cleveland, C.and C. R. R. Co. 74. Kemp V. Burt, 146. Kin^ V. Sheppard, 165. Kinney v. Central R. R. 70. Kisten V. Hildebrandt, 200. Kline v. The Cent. Pac. R. R. Co. no. Knight V. Quarles, 148. Lamb v. Palk, 1 13. Lancaster Canal Co. v. Parnaby, 71. Langridge v. Levy, 3. Lanphier v. Phipos, 207. Latch V. Rumner R. W. Co. 14, 35. Laugher V. Pointer, 104, 114. Leame v. Bray, 2. Le Couteur v. London and ^South- western R. W. Co. 182. Lee V. Riley, 67. Lehman v. Brooklyn, 15, 35. Leonard v. The N. Y. Tel. Co. 228, 241, 247. Levi V. Langridge, 210. Levison v. Kirk, 122. Lewis V. Samuel, 149. Limpus V. London General Omni- bus Co. 106. Line v. Taylor, 100. Little M. R. R. Co. v. Stevens, 133- Little M. R. R. Co. v. Whetmore, 104. Livingston v. Adams, 11, 55. Longmore v. Great Western R. W. Co. 24, 50. Loomis V. Tcfry, 92. xu TABLE OF CASES. Lord V. Midland R. W. Co. 198. Lucas V. New Bedford R. R. Co 34- Lyke v. Van Leuren, 92. Lynch v. Nurdin, 8. Lyon V. Mills, 176. MacAndrew v. The Western U. Tel. Co. Machin v. London and Southwest- ern R. W. Co. 175. Mackinnon v. Penson, 91. Mad. Riv. and L. E. R. R. v. Bar- ber, 123, 133. Mann v. Western U. Tel. Co. Mangan v. Atherton, 34, 57. Manley v. St. Helen's Canal Co. 82, 8;. Manning v. Wells, 200. Marshall v. American Ex. Co. 181. Marshall v. York, Newcastle and Berwick R. W. Co. 163. Mason V. Thompson, 202. Mateer v. Brown, 202. May V. Burdett, 94. Mayhew v. Eames, 166. McAndrews v. The Electric Tel. Co. 245. McArthur& H. v. Sears, 165. McCarty v. New York and E. R. R. Co. 195. McCaskill v. Elliott, 96. McClellan v. Adams, 208. McGatrick V. Wason, 115. McGatrick v. Wilson, 127. McGrew V. Stone, 7. Mclntyre v. N. Y. C. R. R. Co. 48, 223. McLaughlin v. Pryor, 115. McMahon v. Davidson, 47. McManus v. The Lancashire and Yorkshire R. W. Co. 198. McNevins v. Lowe, 208. McPadden v. The N. Y. C. R. R. Co. 21. Mellors v. Shaw, 126. Meritt v. Claghorn, 202. Merrit v. Earle, 164. Mersey Docks Board v. Gibbs, 82, 85. Mersey Docks Board v. Penhallow, .82. Messmore v. The N. Y. Shot and Lead Co. 225. Metcalfe v. London, Brighton and South Coast R. W. Co. 177. Mirchell v. Crassweller, 112. McLaughlin v. Prvor, 123. McManus v. Cricket, III. McManus v. Lancashire and York- shire R. W. Co. 200. Morgan V. Ravey, Z02. Morgan v. Vale of Heath R. W. Co- 133. Morrill V. Graham, 147. Morrison v. Davis, 164. Moses V. B. and M. R. R. Co. 195. Muhl V. South R. R. Co. 223. Mulligan v. Wedge, 116. Murphy v. Coralli, i 16. Murphy v. Deane, y6. Muschamp v. Lancaster and Pres- ton R. W. Co. 197. Nash, and Chat. R. R. Co. v. Mes- sino, 45. Nelson V. Mackintosh, 156. New Jersey S. N. Co. v. Mech. Bank; 180, 197. Nickols V. Smith, 32. Nickols V. Sixth Ave. R. R. Co. 28. Nicholson v. Lancashire and York- shire R. W. Co. 47. North Penn. R. R. Co. v. Heile- man, 37. North V. Smith, 4. Norway P. Co. v. B. and M. R. R. Co. 195. Noyes V. Smith, 127. N. P. R. R. Co. V. Mahoney, 58. Nutting V. Conn. River R. R. Co. 197. N. Y. and Wash. TeL Co. v. Dry- burg, 243. TABLE OF CASES. xm O'Hanlan v. Great Western R. W. Co. 236. Ohrby v. Ryde Commissioners, 88. Orange Co. Bank v. Brown, 185. Overton v. Freeman et al. 118. Owen V. Barnett, 178. Palmer v. Mayler et al. 165. Palmer v. Grand Junction R. W. Co. 175. Panton v. Holland, 69. Pardee v. Drew, 185. Parker v. Flint, 199. Pardington v. South Wales R. W. Co. 198. Parks V. Aclan. and Cal. Tel. 243. Parry v. Roberts, 1 56. Parsons v. St. Matthews, 92. Parvin v. Cole, 206. Patten y, Rea, ii i. Patten v. Wiggins, 208. Patterson v. Wallace, 125. Peck V. Batavia, 85. Peck V. Neil, 8. Peek V. North Staffordshire R. W. Co. 198. Pennsylvania R. R. Co. v. Vande- veer, 220. Benton v. Murdock, loi. Petty V. Great Western R. W. Co. 28. Phelps V. Great Eastern R. W. Co. Philadelphia R. R. Co. v. Hagan, 52. Phillips V. Earle, 166. Phillips V. Edwards, 179. Pickard v. Smith, 55, 73, 76. Piper V. Manifee, 208. Pittsburg, Ft. W. and C. R. R. Co. V. Devenney, 133. Plant V. Midland R. W. Co. 28. riatt V. Hibbard, 199. Plucknall v. Wilson, 5. Portman v. Middieton, 234. Potter V. Faulkner, 143. Powell V. Devenney, 8. Prestwick v. Foley, 152. Priestlv v. Fowler, 120, 136. Pym v. Great Northern R. W. Co. 217, 237. Quarman v. Burnett, 114. Quigger v. Duff, 167. Quimby v. Vanderbilt, 197. Queen v. Inhabitants et al. 92. Radway v. Briggs, 82. Railway Co. v. Reeves, 164. Ramlay v. Leland, 206. Randleson v. Murray, 195. Raphael v. Pickford, 189, 190. Rapson V. Cubitt, 116, 119. Ray V. B. and W. C. R. R. Co. •33- R. V. Huggins, 93. Reading V. Menham, 158. Redhead v. Midland R. W. Co. 15- Reg. V. St. George, Hanover Square, 92. Rex V. Pease, 40. Rhodes v. Cleveland, 86. Rice V. Baxendale, 236. Rich V. Pierpont, 207. Richards v. The London, Brighton and South Coast R. W. Co. 181. Riddle V. Prop. Locks Co. 84. Rigby V. Hewitt, 59, 224. Riley V. Horn, 17. Rittenhouse v. Indep. Line of Tel. 242. Robbins v. Chicago City, 85. Roberts V. Smith, 126. Rockwood V. Wilson, 41. Roe V. Birkenhead R. W. Co. •OS- Romney Marsh, Lords Bailiffs of, V. Corporation of Trinity House, 8. Rooth V. Northeastern R. W. Co. 198.' Rooth V. Wilson, 156. Rose V. U. S. Tel. Co. 244. Rowbotham v. Wilson, 68. Ruck V. Williams, 86. Russel V. Men of Devon, 92. Ryan v. Fowler, 125. XIV TABLE OF CASES. Sadler v. Henlock, 104. Sanders v. Young, 162. Sanderson v. Lamberton, 197. Sarch V. Blackburn, 93. Sawyer v. H. and St. Jo. R. R. Co. 21. Scothorn v. South Staffordshire R. W. Co. 197. Scott V. London Dock Co. 47. Scott V. Shepherd, 8. Searle v. Lindsay, 137. Selway v. Halloway, 167. Senior v. Ward, 125. Seymour v. Greenwood, 105. Seymour v. Maddox, 1 25. Shackell v. West, 160. Sharp V. Gray, 168. Shaw V. Boston and W. R. R. Co. 55. 239- Shaw V. Kidder, 158. Shaw V. York and North Midland R. W. Co. 180. Shelton v. Hudson River R. R. Co. 41. Shepherd v. Bristol and Exeter R. W. Co. 196. Shields v. Blackburn, 211. Shildon v. Hudson R. R. Co. 40 Shipley v. Fifty Associates, 81. Shoebottom v. Egerton, 73. Simons v. Great Western R. W. Co. 198. Sinclair v. Parsons, 158. Siner v. Great Western R. W. Co. 25. Singleton v. Eastern Counties R. W. Co. 35, 57. Shelton v. London and Northwest- ern R. W. Co. 37. Skinner v. London and Brighton R. W. Co. 45. Skipp V. Eastern Counties R. W. Co. 126. Sleat V. Fagg, 176. Slocum V. Fairchild, 180. Smeed v. EUendorf, 147, 154, Smeed v. Foord, 228. Smith V. First National Bank, 13. Smith V. Great Eastern R. W. Co. 100. Smith V. Griffith, 236. Smith V. Lawrence, 114, 115. Smith V. London and Southwestern R. W. Co. 41, 54. Smith V. London and St. Katharine Dock Co. 76, 84. Snelgrove v. London, Brighton and South Coast R. W. Co. 139. South R. R. Co. V. Kendrick, 31, Southampton Bridge Co. v. South- ampton Local Board of Health, 86. Southcote V. Stanley, 72, 78. Southcote's Case, 159. Squire v. Western U. Tel. Co. 241. Squire v. Wheeler, zio. Stannard v. Ullithorne, 148. Stanton v. Leland, 206. Stapley v. London, Brighton and South Coast R. W. Co. 52. St. Clair v. Pearson, 160. Steamboat N. W. v. King, 154. Steel V. Eastern Counties R. W. Co. 117. Stiles V. Cardiff Steam Navigation Co. 96. Stockton V. Frey, 239. Stoddard v. Long Island R. R. Co. 197. Stokes V. Saltonstall, 7. Storey v. Ashton, 1 1 z. Stuart V. Hawley, 41. Stubley V. London and Northwest- ern R. W. Co. 35. Swan V. South Australian Co. i. Suydam v. The Grand Street N. R. R. 45. Sweeney v. Old Colony R. R. Co. 79- Sweetland v. 111. and Miss. Tel. Co. 246, 243. Symes v. Chaplin, 168. Syred v. Carruthers, 16O: Taylor v. Great Northern R. W. Co. 189. TABLE OF CASES. XV Taylor v. Monnot, 199. The King v. Pease, 40. Thomas v. Bos. R. R. Corp. 195. Thompson v. Lacey, 199. Thoroughgood v. Bryan, 215. Thurston v. Hancock, 69. Tilley V. Hudson R. R. Co. 223. Tonawanda R. R. Co. v. Mun- ger, I. Tooney v. London and Brighton R. W. Co. 12. 13,22. Trumbull v. Nicholson, 154. Tuberville v. Stamp, 104. Tuffv. Warman, 55. Tully V. Ay res, 3. Underwood v. Hewson, 4. U. S. Tel. Co. V. Gildersleeve, 246. Vanderpool v. Hasson, 1 1 7. Van Toll v. Southeastern R. W. Co. 196. Varnum v. Martin. 147. Vaughan v. Menlove, 5, 7. Vaughan v. Taff Vale R. W. Co. 39- Vennell v. Garner, 60. Vose V. Lancashire and Yorkshire R. W. Co. 144. Vrooman v. Sawyer, 92. Wade V. Leroy, 239. Waine v. Rempster, 148. Waite V. Northeastern R. W. Co. 55. 5S, 215- Wakeman v. Robinson, Walker v. Goe, 82. Walker v. Jackson, 166. Walker v. Southeastern R. W. Co. 106, 1 10. Walker v. York and North Midland - R. W. Co. 178. Waller v. Southeastern R. W. Co. 138. Walters v. Pfeil, 69. Wan V. Telegraph Co. 245. Warburton v. Great Western R. W. Co. 144. Ward V. Lee, 86. Warner V. E. R. R. Co. 133. Warren v. Fitchburg R. R. Co. 48. Watson V. Muirhead, 148. Webster v. Hudson River R. R. Co. 59. Weaver v. Ward, Weld V. Hudson River Co. Weldon v. N. Y. R. R. Co. Wendell v. Banter, 81. Western Savings Bank v. Philadel- phia, 86. Western U. Tel. Co. v. Carew, 243 • Wheatley v. Patrick, no. White's Case, 201. Whitehead v. Greetham, 148. Whitehouse v. Birmingham Canal Co. 40. Whitehouse v. Fellowrs, 85. Whittaker v. Manchester and Shef- field R. W. Co. 29. Wiggett V. Fox, 13;. Wi more v. Jay, 140. Wilby V. West Cornwall R. W. Co. 197. Wilkinson v. Fairrie, 81. Wilkins v. Earle, 206. Willard v. Rheinardt, 1 99, 200. Williams V. Clouch, 126. Williams v. Jones, 1 13. Williams v. Richards, Wilmot V. Howard, 208. Wilson V. Brett, 157, 212. Wilson v. Halifax, Mayor of, 89. Wilson v. Lancashire and Yorkshire R. W. Co. 229. Wilson v. Mayor, 89. Wilson v. Newport Dock Co. 229. Wilson V. Russ, 147. Wilton v. Royal Altantic Mail Co. 179. Winsmore v. Greenbank, Wintermute v. Clarke, 199. Wise v. Great Western R. W. Co. 198. Witherby v. Regent's Canal Co. 215. xvi TABLE OF OASES. Withers v. North Kent R. W. Co. Wright V. N. y. Central R. R. 34- 123. Wonder v. The B. and Ohio R. R. Wright V. Pearson, 10 1. Co. 1 23. Wyatt V. Great Western R. W. Co. Woodger v. Great Western R. W. 38. Co. 237. Wyld V. Pickford, 179, 212. Woods V. Devin, 185. Wylde V. Piclcford, 175. Woolf V. Beard, 57. J Worth V. Gilling, 99. Tjxxrvi. V. Southeastern R. W. Co. Wright V. Hardy, 208. 179. INTRODUCTION. Negligence, in law, consists in omitting to do something that a reasonable man would do, or the doing of something that a reasonable man would not do ; in either case causing, uninten- tionally, mischief to a third party/ The action for negligence proceeds from the idea of an obli- gation toward the plaintiff to use care, and a breach of that obli- gation, to the plaintiff's injury. Per Wilde, B., in Swan v. The South British Australasian Co. [limited^., 7 Hur. & N. 603 ; 31 L. J., Ex. 437. Some acts are absolutely and intrinsically wrong where they directly and necessarily do injury, such as a blow. Others are only so from their probable consequences. There is no absolute or intrinsic negligence ; it is always relative to some circum- stances of time, plice, or person. It is not negligent or wrong for a man to fire at a mark in his own grounds at a distance from others, or to ride very rapidly in his own park, but it is wrong to fire near to, and so, to ride on the public highway. The quality of the act is not altered. It is wrong in whosoever does it, and so far it is intrinsically wrong. So the act of firing or riding fast in an inclosure becomes wrong, if the person firing or riding in it sees that there is some one near who may be in- jured. But the act is wrong in him only for the reason that he knows of its danger. It would not be wrong in any one else who did not know that. Per Bramwell, B., in the judgment of the court in Degg v. The Midland Railway Co., i Hur. & N. 733; 26 L. J., Ex. J 74.' In considering this subject it will be convenient to do so under distinct heads and separate chapters. Mf a person do a lawful" thing, and thereby injure another, which he could have avoided by reasonable and proper care, he shall make reparation. Ktriuhackrr v. C C. and C. R. R. Co., 3 Ohio St. 176J Tonaivanda R. R. Co. v. Munger, 5 Denio, 255 ; Blyte V.Birmingham Water Co., II £xch. 781. ^Hartfield v. Rofcr, 21 Wend. 615 j Bizztll v. Booker, 16 Ark. 308. A TREATISE Law of Negligence. CHAPTER I. AS TO THE GENERAL LIABILITY FOR NEGLIGENCE. Sec. I. — As to the degree of negligence. " 2. — As to the proximate cause and consequential injury. " 3. — As to inevitable accidents. Sec. I . — As to the degree of negligence. It has always been the well-established law that if one person by any kind of force cause an injury to another, unless it be by inevitable accident or under the sanction of legal authority, he is liable to make compensation in damages ; and it is wholly immaterial that the in- jury was unintentional or accidental.^ Willes, J., in Winsmore v. Greenbank, Willes, 577, observes : " By injuria is meant a tortious act ; it need not be willful and malicious, for though it be accidental, an action An action of trespass lies for damages done by the accidental de- scent of a balloon upon the plaintiff's premises. Guille v. Stvan, 19 Johns. 381 ; Tut/y v. Ayres, 3 Sneed, 677. 2 GENERAL LIABILITY FOR NEGLIGENCE. will lie." And in Leame v. Bray, 3 East, 600, Grose, J., remarks: "Looking into all the cases from the Year Book, in 21 Hen. 7, down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answer- able in trespass." Thus, where a gun went off while it was being uncocked {Weaver v. Ward, Hobard's Rep. 134) ; and where the defendant, exercising in the train- bands, fired his musket and accidentally hurt the plaint- iff {Underwood v. Hewson, i Stra. S9^)i ^^ action was held to be maintainable for the injury. As explained in the judgment in Degg v. "The Mid- land Railway Co. {supra), an act lawful in itself may become the subject of negligence by the circumstances attending it ; thus the law requires of persons having in their custody instruments of danger, that they shall keep them with the utmost care, and therefore, where the defendant being possessed of a loaded gun sent a young inexperienced girl to fetch it, with directions to take the priming out, which was accordingly done, and a damage accrued to the plaintiff's son in consequence of the girl presenting the gun at him in sport and drawing the trigger when the gun went off, it was held that the- defendant was liable. Dixon v. Bell, 5 Mau. & Sel. 198. So, where the defendant caused a carboy containing nitric acid to be delivered to the plaintiff, who was one of the servants of a carrier, in order that it might be carried by such carrier for the defendant, and the defendant did not take reasonable care to make the plaintiff aware that the acid was dangerous, but only informed him that it was an acid, and the plaintiff was burnt arid injured by reason of the carboy bursting DEGREE OF NEGLIGENCE. whilst, in ignorance of its dangerous character, he was carrying it on his back from the carrier's cart — it was held that the defendant was liable in an action for damages for such injury. F arrant v. Barnes, ii Com. ^- SS'i ; 31 L. J., C. P. 137. In his judgment, Erie, C. J., says : " I am of opinion that it was the duty of the defendant, knowing the dangerous nature of the acid which was in the carboy, to take reasonable care that its dangerous nature should be communicated to all those who were about to carry it. Now it is found by the jury that he did not do so. The accident oc- curred perhaps from the explosive character of the article ; but be this as it may, it seems to me that the plaintiff was employed by the defendant to carry it, and so comes within the distinction pointed out in Lang- ridge V. Levy, 4 Mee. & Wei. 337 ; 7 L. J., Ex. 387, as the principle of that case. I rely, however, on the case of Brass v. Maitland, 6 Ell. & Bla. 470; 26 L. J., Q. B. 49, as establishing the principle which governs the present case. There it was held by Lord Campbell, * that while the owners of a general ship undertake that they will receive goods and safely carry them and de- liver them at the destined port, the shippers undertake that they will not deliver, to be carried on the voyage, packages of goods of a dangerous nature which those em- ployed on behalf of the shippers may not on inspection be reasonably expected to know to be of a dangerous nature without expressly giving notice that they are of a dangerous nature.' So, Willes, J„ says : ' I appre- hend that a person who gives a carrier goods of a dangerous character to carry, which require more caution in their carriage than ordinary merchandise, as without such caution they would be likely to injure the carrier and his servants, is bound in law to give notice of the 4 GENERAL LIABILITY FOR NEGLIGENCE. dangerous character of such goods to the carrier, and that if he does not do so he is liable for the conse- quences of such omission.' " So, although all the queen's subjjcts have a ri^ht to use the public carriage- ways, they must regulate their conduct according to circumstances. Thus, where the plaintiff was driving a wagon and three horses along a highway, walking in the usual way at the head of the leading horse on his proper side of the road, and the defendant and his groom were riding at a foot pace (meeting the wagon on the wrong side), when just as he passed the plaintiff, the groom touched his horse with a spur, whereupon it^ kicked out and struck the plaintiff — it was held that the act of using the spur, when so near the plaintiff, justi- fied the jury in finding negligence. North v. Smith, lo Com. B., N. S. 572. So, also, it is the duty of per- sons who are driving over a crossing for foot passengers to drive slowly, cautiously, and carefully [Williams v. Richards, 3 Car. &z; Kir. 82 ; Cotton v. Wood, 8 Com. B., N. S. 571) ;^ and although a person driving a car- riage is not bound to keep on the regular side of the ruad, if he does not do so he should use more care and keep a better lookout to avoid concussion than would be necessary if he were on the proper side {Plucknall V Wilson, 5 C. & P. 375 ; Boss v. Litton, Id. 407) ; and it has been well said (Addison on Torts, 2d ed. 327) : " The degree of care to be exercised by foot passengers in a public thoroughfare to prevent collisions with others depends in a great degree upon the injury that will be likely to result to others from their want of care. Thus a man who traverses a crowded thorough- 7 ' But see Barker v. Savage, New York Appeals, December Term, 1 871, where it was decided that foot passengers have no right of way at a crossing superior to that of vehicles. DEGREE OF NEGLIGENCE. fare with edged tools or bars of iron must take especial care that he does not cut or bruise others with the things he carries. Such person would be bound to keep a better lookout than the man who merely carried an umbrella ; and the person who carried an umbrella would be bound to take more care in walking with it than a person who had nothing at all in his hands." So, where the plaintiiF was possessed of farm buildings and stacks of corn standing in a close in his occupation, and nearly adjoining another close in the occupation of the defendant, and the defendant placed a stack of hay on his close, which heated and smoked and gave out a strong smell indicating that the hay-stack was in danger of taking fire, and the defendant knowing its dangerous condition nevertheless kept it in his close although he could have removed it, and it ignited and burst into flame and. set fire to the adjoining farm buildings of the plaintiff — it was held that the defendant was liable. Vaughan v. Menkve, 3 Bing., N. C. 468. Where the injury complained of has resulted from negligence in leaving instruments of danger, such as a horse and cart, unattended in a public thoroughfare or place of public resort, it is for the jury to inquire whether the horse was vicious or steady, whether the horse was left for an unreasonable time, and whether there was any excuse for leaving it at all unattended, whether assistance could have been procured to watch the horse, whether the street was unfrequented or thronged, and especially whether large numbers of young children might reasonably be expected to be about the spot. Lynch v. Nurdin, i Q. B. 38. If, in- deed, the injury complained of arose from the voluntary action of the plaintiff, but which action was forced upon him by the misconduct of the defendant, he will still be 6 GENERAL LIABILITY FOR NEGLIGENCE. entitled to recover damages for it. This proposition was well illustrated by Montague Smith, J., in Adams V. l!he Lancashire and Yorkshire Railway Co., 38 L. J,, C. P. 275, in which the plaintiff sought to recover dam- ages for an accident in falling out of the train, through the door, which was unfastened to the knowledge of the plaintiff and upon which he leant, flying open. In holding that the plaintiff was not under the circum- stances entitled to recover, the learned judge said : " I agree to the proposition that if the neglect of the de- fendants puts a passenger in a position of alternative danger, so that there is danger if he remains still, and also danger if he attempts to avoid it, and if, in so at- tempting to avoid it, an injury occurs to him, such in- jury flows from the negligence of the defendants ; but if this be not so, and he is only subjected to incon- venience, and voluntarily runs into peril to remedy it, and receives injury, such injury does not arise from the negligence of the defendants. It is not necessary to lay this down as a general rule, for I by no means say that if there be great inconvenience and little peril, it may not be reasonable in some cases to run the risk ; but here there being only inconvenience, and that in- convenience nothing like the peril incurred, the plaint- iff takes a dangerous step, and therefore the conse- quences must be borne by himself. The rule will be found well illustrated and clearly put by Lord Ellen- borough in Jones v. Boyce, i Stark. 493, where the horses of the defendant's coach ran away in consequence of the breaking of a defective rein, and the plaintiff, a passen- ger, jumped off the coach and was injured ; that learned judge there says : " To enable the plaintiff to sustain the action it is not necessary that he should have been thrown off the coach ; it is sufficient if he was placed. PROXIMATE CAUSE AND CONSEQUENTIAL INJURY. 7 by the misconduct of the defendant, in such a situation as obliged him to adopt the alternative of a dangerous leap or to remain in certain peril. If that position was occasioned by the default of the defendant the action may be supported ;' and again, 'If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences.' "^ Sec. 2. — The proximate cause^ — direct and consequential injury. In order to make a defendant liable, his negligence must be the causa causans, and not merely a causa sine qua non. Per Kelly, C. B., in The Lords Bailiffs of Rom- ney Marsh v. The Corporation of Trinity House .^ 39 L. J., Ex. 163. But, as a general rule, whoever does an ille- gal or wrongful act, is answerable for all the conse- quences that ensue in the ordinary and natural course of events, even though those consequences be immedi- ately and directly brought about by the intervening agency of others, provided the intervening agents were set in motion by the primary wrong-doer, or provided their acts causing the damage were the necessary or legal and natural consequence of the original wrongful act.^ ' If the plaintiff were placed in peril by the negligence of the driver, and jumped from the stage, reasonably supposing it would upset, or that the driver was incapable of managing his horses, he may re- cover, though the jumping, in fact, increased his peril, or even caused the stage to upset. Stokes v. Saltonstall, 13 Peters, 181. » McGrew v. Stone, 53 Penn. St. 436. ' Although the accident may have occurred through the recklessness of the driver of another stage, who with his employers may also be liable, yet if the driver of the stage to which the accident occurred be in any respect wanting in the exercise of skill and prudence, his prin- cipals are liable. Peck v. Neil, 3 McLean, 23 8 GENERAL LIABILITY FOR NEGLI&ENCE. Thus, where the defendant threw a lighted squib from the street into the market-house, where a large con- course of people were assembled, which fell on the stand- ing of one Yates, who took it up to prevent injury to his wares, and threw it across the said maiket-house, when it fell upon another standing of one Ryal, who to save his own goods being injured took it up and threw it to another part of the market, and in so throwing it, it struck the plaintiff in the face, and the combustible matter then bursting put out one of his eyes ; it was held that an action of trespass was maintainable against the defendant for damages as being the original wrong- doer, from whose act the mischief naturally followed. Scott V. Shepherd, i W. Bla. 892; 3 Wils. 403. If a horse and cart be left standing in the street without any person to watch them, and a person strike the horse and cause it to back against a shop-window, the owner is liable for the damages, for he must take the risk of all the consequences that result from the horse being unat- tended, though an action would also lie against the person who struck the horse. Illidge v. Goodwin, 5 C. & P. 192.^ " If," says Lord Denman, in Lynch v. Nurdin, \ Q. B. 2^, " I am guilty of negligence in leaving anything The plaintiff, while traveling in defendant's railroad car, permitted his arm to rest on the window-sill-, and slightly project outside, whereby his arm was broken by coming in contact with a freight car standing near the track. Held, that the negligence of the defendants was gross in comparison with the plaintiff's, and that the latter could recover. Chicago and Alton R. R. Co. v. Poudron, 51 111. 333. 'Defendant's servant, contrary to orders, left a truck standing in the street, and it was accidentally struck and hurled against the plaintiff, breaking her leg ; the owner of the truck was held liable for the injury. Powell v. Devenney, 3 Cush. 300. PROXIMATE CAUSE AND CONSEQUENTIAL INJURY. "9 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 party, and if that injury should be so brought about, the sufferer may have redress by action against both or either of the two, but unquestionably against the first." In that case the defendant left his horse and cart for a long time unat- tended in the street where some little boys were at play, and some of the boys got into the cart, and another boy led the horse on to give him a ride and one boy fell oflf the shafts and got his leg crushed under the wheel, and it was held that the defendant was responsible for the fall and the broken leg, as it was the natural result of his misconduct in leaving the cart unattended, and that the boy, in consequence of his tender years and natural instinct for play and want of reflection and foresight, could not be considered legally responsible for the dam- age he had sustained so as to preclude him from recov- ering compensation from the defendant.^ Where cattle, which were afflicted with a contagious disorder, trespassed upon an adjoining pasture and in- fected other cattle with the disease, it was held that the owner of the trespassing cattle was responsible for the damage arising from the spread of the disorder as well as for the injury to the grass and herbage. Andrews v. , Buckton, I Str. 192. ^UfCr^iH, /f/^^ i^^f ^^^^ In Burrows v. The March Gas and Coke Co., 39 L. J., Ex. 23i ^^^ defendants, a gas company, having con- tracted to supply the plaintiflf with a service pipe from the main to the meter on his premises, laid down a defective pipe from which the gas escaped. A work- man in the employ of a gas fitter, engaged by the plaint- 'FoUowed in Kayy. Penn. R. R. Co., 3 Law Times, 171. 10 GENERAL LIABILITY FOR NEGLIGENCE. iff to lay down the pipes leading from the meter over the premises, negligently took a lighted candle for the purpose of finding out whence the escape proceeded. An explosion then took place whereby damage was occasioned to the plaintiflf's premises, to recover com- pensation for which the plaintiff brought his action; and it was held that the damage was not too remote, and that the plaintiff, not being the master of the workman, could not be considered as contributing to the damage by reason of his act, and was, therefore, entitled to recover.^ See also Bagnall v. The London and Northwest- ern Railway Co., 3 1 L. J., Ex. 121 ; Collins v. The Middle Level Com'rs., L. R., 4 C. P. 279; 38 L. J., C. P. 236. If, however, the wrong and the legal damage are not known by common experience to be usually in sequence, and the damage does not, according to the ordinary course of events, foHow from the wrong, the wrong and the damage are not sufficiently conjoined or concat- enated, as cause and effect, to support an action. Per Lord Campbell, in Gerhard v. Bates, 2 Ell. & Bl. 490. In Greenland v. Chaplin, 5 Ex. 248, Pollock, C. B., thus expressed himself: "I entertain considerable doubt whether a person who has been guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility 'have, been foreseen, and which no reasonable person would have anticipated, I am inclined to consider the rule of law to be this, that a person is expected to anticipate and guard against all reasonable consequences, but that he is not by the law of England expected to anticipate and guard against that which no reasonable man would expect to occur." 'Affirmed in Ex. Ch. L. R., 7 Ex. 96. INEVITABLE ACCIDENT. H Sec. 3. — Inevtiable accident. Care must be taken to distinguish between negligence and inevitable accident, since, if the injury sustained be the result of circumstances for which the defendant is not blamable, and over which he has had no control, no claim for damages against him can be supported ; thus, where the defendant's horse, being frightened by the sudden noise of a butcher's cart which was driven furiously along the street, became unmanageable, and plunged the shaft of a gig into the breast of the plaintiff's horse — it was held that the action could not be sup- ported. Wakeman V. Robinson, 1 Bing. 213; 8 Moore, 62- So, also, where a horse, not known to be vicious by the defendant, upon which he was riding, became restive and ungovernable, and ran upon the foot pave- ment and knocked down and killed the plaintiff's hus- band. Hamtnack v. White, 11 Com. B., N. S. 588 ; 31 L. J., C. P. 129. So, where a horse took fright with- out any default in the driver, or any defect in the har- ness, or there being any known propensity in the animal, and did damage to the plaintiff [Aston v. Heaven, 2 Esp. S33) '•> °^ where the accident arises from foggy weather, or the removal of accustomed landmarks. Crofts v. Water house, 3 Bing. 319, 321. In all such cases where there is no blame to be attached to the defendant, no action will lie against him.^ ' If, in doing a lawful act, witli all due care and precaution, one accidentally injure another, an action for damages does not lie. Brmn V. Kendall, 6 Cush. 292. Negligence must be shown in order to create liability. Livingstone V. AJams, 8 Cowen, 175 ; Calkins v. Barger, 44 Barb. 424; Dygert v. Bradly, 8 Wend. 473 ; Boknd v. Missouri R. Co., 36 Mo. 484 12 EXISTENCE OF NEGLIGENCE. CHAPTER II. AS TO THE EXISTENCE OF NEGLIGENCE. Sec. I . — What facts are not evidence of negligence. " 2. — What facts are evidence of negligence. " 3. — Of contributory negligence. Sec. I. — What facts are not evidence of negligence. To entitle the plaintiff to recover damages for an injury sustained by the negligence of the defendant, he must give some affirmative evidence of the existence of such negligence, and the mere happening of an accident is not sufficient evidence to be left to the jury.^ Hammack v. White, II Com. B., N. S. 588; 31 L. J., C. P. 129; Toomey v. London and Brighton Railway Co., 3 Com. B,, N. S. 146. In Cotton v. Wood, 8 Com. B., N. S. 568; 29 L. J., C. P. 233i Erie, C. J., said, " To warrant a case being left to the jury it is not enough that there may be some evidence of negligence, a mere scintilla of evidence is not sufficient, but there must be proof of well-defined negligence." But, as will hereafter be pointed out, the very nature of the accident may of itself, and without explanatory evidence in many cases, supply the requisite oroof. ' In all actions for negligence, the burden of proving ^the fact of negligence is always on the plaintiff. See 5 Amer. Law Rev. 205, and the cases there cited. WBAT FACTS NOT EVIDENCE OF NEGLIGENCE. 13 In an action to recover damages arising from the neg- ligence of the defendant^ it is necessary for the plaintiff to establish in evidence circumstances from which it may fairly be inferred that there is reasonable probability that the injury resulted from the want of some precaution to which the defendant might and ought to have resorted {Daniel v. The Metropolitan Railway Co., L. R., 3 C. P. 216, 222, 591 ; 37 L. J., C. P. 146, 280) ; and if the fact of negligence be doubtful the defendant is entitled to the verdict.^ Phelps v. The Great Eastern Railway Co., 21 Law Times Rep. 443. In that case, which was an action against a railway company for an injury to the plaintiff whilst traveling upon their line, Kelly, C. B., in summing up, said, " It is for the plaintiff to make out his case, and show that the accident arose from the negligence of their servants, and if the evidence arose from the negligence of their servants, and if the evi- dence left this point in doubt they must find for the company." See also Cotton v. Wood, 8 Com. B., N. S. 568 ; 29 L. J., C. P. 233 '■> ^"d Toomey v. The London, Brighton and South Coast Railway Co., 3 Com. B., N. S. 146; 27 L. J., C. P. 29' The fact of an accident having occurred is not of itself evidence of negligence, since its occurring may be quite consistent with due care having been taken .^ In Carpue v. The London and Brighton Railway Co., 5 Q. B. 751, it was certainly held, as regards a railway, that when both a railway itself, and the carriages in which the passengers are con- veyed, are under the exclusive control of the company, the very fact of a train's running off the line was prima 'To the same effect is the case of Smith v. Firft Nat. Bank, 9 Mass. 605. ^Lehman v. Brooklyn, 29 Barb. 234. 14 EXISTENCE OF NEGLIGENCE. facie proof of negligence on the part of such company or its officers, and sufficient to throw upon them the burden of explaining how it happened, and of showing that it occurred without any fault or neglect on their part. See also Dawson v. Manchester, Sheffield and Lan- cashire Railway Co., 5 Law Times Rep. 682. But in Bird V. 'The Great Northern Railway Co., 28 L. J., Ex. 3, it was held, in an action against a railway company, that the fact of the occurrence of an injury nrft neces- sarily importing negligence, even if it be prima facie proof, is not conclusive proof of negligence; Assum- ing, however, that it is prima facie evidence of negli- gence in a railway company that a train has got off the line, such evidence is entirely rebutted by proof that the accident arose from the willful and wrongful act of a stranger. Latch v. Rumner Railway Co., 27 L. J., Ex. In considering the liability ef a railway company, and, as it would seem, of a coach proprietor, for the safe conveyance of passengers, it must be borne in mind that their undertaking is not like that of a common carrier of goods, to carry safely at all risks, but is merely to use due care and diligence ; and that if they use such due care and diligence they are not liable for the conse- quences of an accident even though such accident arose from defects in the conveyance itself. There is neither a warranty by way of insurance to convey the passen- ger safely to his journey's end, nor a warranty that the carriage in which he travels is in all respects perfect for its purpose, that is to say, free from all defects, whether patent or latent, likely to cause peril, the only under taking being to take due care (including in that term the use of skill and foresight) to carry the passenger safely. This question was much discussed in the case of Red- WffAT FACTS NOT EVIDENCE OF NEGLIGENCE. 15 bead V. "The Midland Rat/way Co., L. R., 2 Q. B. 412 ; 36 L. J., Q. B. 182, affirmed in Ex. Ch., L. R., 4 q! ^ ^ ^ B. 379 ; 38 L. J., Q. B. 169. In that case it appeared j / /' / / that the plaintiff took a ticket of the defendants at Not- ' ' ( ( (| tingham for South Shields and traveled thence by one of their express trains, and when on its way the carriage in which the plaintiff was riding ran off the line and rolled over, whereby he sustained the injuries for which the action was brought. • The defendants proved that the carriage was one belonging to the London and North- western Railway Company, and ran through from the line of that company to the defendants' line and would return to its owners in the course of time, in accord- ance with the traffic arrangements between the two com- panies. They called several witnesses to prove that the occurrence was caused solely by a fracture in the tire of one of the wheels ; that this fracture was caused entirely by a defect in the manufacture of the tire, namely, a vacuum in the welding; that the defect was of such a nature as not to be discoverable by the eye or the ear ; that such defects never were and could not be discovered till a fracture occurred, and might exist without any fault on the part of the manufacturer ; that the wheels of this carriage were examined on the day in question during the journey in the usual manner, namely, by inspection and by sounding them with a hammer at the usual places ; that the tires were never permitted to be used under a certain thickness, and that the thickness of this tire was greater than the minimum allowed. In leaving the case to the jury, Mr. Justice Lush told them that the material question was, whether upon the whole of the evidence they were of opinion that the rail- way company were guilty of negligence ? and that he need hardly tell them that if the injury was properly 16 EXISTENCE OF NEGLIGENCE. due to an accident, that is to say, if it could not reason- ably be foreseen and was not due to any fault or care- lessness on the part of the company, the plaintiff would not be entitled to recover. Upon a verdict being re- turned for the defendants, a rule nisi was obtained to set the verdict aside on the ground of misdirection in this, that the learned judge told the jury, the defendants were entitled to the verdict if the accident was caused by the latent defect in the tire of the wheel. Upon the argument the rule was discharged. Lush and Keating, JJ., holding that thd defendants were not liable, and Blackburn, J., that they were. Upon the case being taken to the Exchequer Chamber the decision of the majority of the court belo^wwas affirmed. As the judg- ments of the learned judges in the Court of Queen's Bench were of a very logical and practical character, they will well justify a few extracts being here introduced from them. In his considered judgment. Lush, J., said : " This was an action for an injury caused by the breaking down and overturning of the carriage in which the plaintiff was traveling as a passenger on the defend- ants' railway. The accident arose from the fracture of one of the wheels of the carriage, the tire of which had split into three pieces, owing, as it was afterward dis- covered, to a latent flaw in the welding ; and it was proved, on the part of the defendants, that at the com- mencement of the journey the wheel was to all appear- ance strong and sound, that such a flaw in the welding may occur without any fault on the part of the manu- facturer, that there were no means of detecting it before- hand, and that in fact the carriage had been examined according to ordinary practice before the train had started on the journey, and had answered all the usual tests of soundness. I directed the jury that if they WHAT FACTS NOT EVIDENCE OF NEGLIGENCE. 17 believed this evidence the defendants were not responsi- ble for the accident, and they accordingly found a ver- dict for the defendants. A rule was granted for a new trial, on the ground that a carrier of passengers is bound at his peril to provide a roadworthy carriage, and is consequently liable if the carriage turns out to be defect- ive, notwithstanding that the infirmity was of such a nature that it could neither be guarded against nor dis- covered. The question thus nakedly raised is one of vast importance at the present day, both to railway companies and passengers, and there being no case in our Reports in which it has been argued and adjudi- cated, we took time to consider our judgment. Having done so and given the subject the best consideration in my power, I adhere to the opinion that the law imposes no such liability on railway companies It is not contended that the obligation of a carrier of pas- sengers is co-extensive with that of a carrier of goods, who by the custom of the realm is placed in the position of an insurer, subject only to the exceptions of loss or damage, by the act of God, or the public enemies of the crown. The reasons upon which that liability is based, and which are expressed by Holt, C. J., in Coggs v. Barnard, and by Best, C. J., in Riley v. Horn, 5 Bing. 220, are inapplicable to a carrier of passengers. The latter has not the same control over persons which he has over goods, nor the same opportunities of abuse and misconduct, the apprehension of which gave rise to this rigorous rule of law; and therefore the law has never imposed upon him the responsibility of an insurer. ' The undertaking of a carrier of passengers,' says Mr. Justice Story, in his work on Bailments, sec. 601, 'is not an undertaking to carry safely, but only to exercise due care and diligence in the performance of his duty.' 18 EXISTENCE OF NEGLIQENCE. But it is contended that in this particular part of his duty, viz: the providing a suitable vehicle, his under- taking goes beyond the measure of ' due care and dili- gence,' and includes a warranty that the carriage which he provides is sound and free from all defects which render it unfit for the service, though he has used every means in his power to make it sound, and though he could not by any amount of care, skill, or vigilance have ascertained that it was not so. . . The proposition is one which I can not adopt without authority, because 1 can see no reason why a carrier should be held to war- rant more than due care and diligence can enable him to perform as respects the quality of his carriage, when it is admitted that he is under no such liability as respects the conduct or management of it. . . I do not feel it necessary to review in detail the cases which more dire<;tly bear upon the liability of a carrier of passengers. They are quoted in Story, as the authority for the rule which he lays down, and in my judgment they do not carry the liability further than he has stated it. In all of them, where it has become necessary to define that liability, the judges have carefully distinguished between a carrier of passengers and a carrier of goods, and have pointedly declared that the liability of the former stands on the ground of negligence alone. See Aston v. Heaven, 2 Esp. Ci23 '•> Christie v. Griggs, 2 Camp. 79 ; and Crofts v. fVaterhouse, 3 Bing, 32." The learned judge then referred to various authorities, and concluded by giving his opinion that the rule should be discharged. Mr. Justice Mellor, in giving his judgment very carefully, refers to the various cases touching upon the subject, and observes : " The authorities to which I have re- ferred sufficiently illustrate the distinction between the liability of carriers of goods and that of carriers of pas- WHA T FA CTS SO T E VIDENCE OF NEO LIOENGE. \ 9 sengers. The liability of the former is that of an in- surer, whilst that of the latter is only for negligence. It further appears from these cases that the negligence which renders a carrier of passengers liable is something which might have been avoided by the exercise of *care, skill, or foresight, and that an accident which results from some cause which "no amount of care, skill, or fore- sight could have discovered, can not be said to be the result of negligence in the carrier." His lordship also agreed that the rule should be discharged. Mr. Justice Blackburn, who differed from the other judges (the Lord Chief Justice being unfortunately absent), after a very learned inquiry into the effect of the decided cases, concluded by saying, " The question, therefore, is dis- tinctly raised, whether the obligation of the carrier of passengers to the passenger is merely to take every pre- caution to procure a vehicle reasonably sufficient for the service whether by sea or land, in which case the direc- tion was right, or whether it is, as I think, an absolute obligation at his peril to supply one or be responsible for any damage resulting from a defect. Taking the view of the law which I do, I think the rule for a new trial ought to be made absolute, but the majority of the court being of a different opinion, it must be dis- charged." This case was afterward taken to the Exchequer Cham- ber, where, after a considered judgment, the decision of the court below was unanimously supported. L. R., 4 Q. B. 379; 38 L. J., Q. B. 169. In delivering the judgment of the court, Mr. Justice Montague Smith, after stating the facts, said, " Does an action lie against the company under these circumstances ? This ques- tion involves the consideration of the true nature of the contract made between a passenger and a general carrier 20 EXISTENCE OF NEGLIGENCE. of passengers for hire. It is obvious that for the plaint- iff on this state of facts to succeed in this action, he must establish either that there is a warranty by way of insur- ance on the part of the carrier to convey the passenger safely to his journey's end, or, as his learned connsel mainly insisted, a warranty that the carriage in which he travels should be in all respects perfect for its purpose, that is to say, free from all defects likely to cause peril, although those defects were such that no skill, care, or foresight could have detected their existence. We are of opinion, after consideration of the authorities, that there is no such contract, either of general or limited warranty and insurance, entered into by the carrier of passengers, and that the contract of such a carrier and the obligation undertaken by him are to take due care (including in that term the use of skill and foresight) to carry the passengers safely. It of course follows that the absence of such care, in other words, negli- gence, would alone be a breach of this contract, and as the facts of this case do not disclose such a breach and, on the contrary, negative any want of skill care, or foresight, we think the plaintiff has failed to sustain his action, and that the judgment of the court below in favor of the defendants ought to be affirmed." The judgment then proceeds to the consid- eration of the very numerous authorities cited, and con- cludes, " We do not attempt to define, nor is it nec- essary to do so, all the liabilities which the obligation to take due care imposes on the carriers of passengers. Nor is it necessary, inasmuch as the case negatives any fault on the part of the manufacturers, to determine to what extent and under what circumstances they may be liable for the want of care on the part of those they WHAT FACTS NOT EVIDENCE OF NEGLIGENCE. 21 employ to construct works, or to make or furnish the carriages and other things they use. See on this point Groie v. The Chester and Holyhead Railway Co., i Exch. 255. ' Due care,' however, undoubtedly means, having reference to the nature of the contract to carry, * a high degree of care,' and casts on carriers the duty of ex- ercising all vigilance to see that whatever is required for the safe conveyance of their passengers is in fit and proper order. But the duty to take due care, however widely construed, or however rigorously enforced, will not, as the present action seeks to do, subject the de- fendants to the plain injustice of being compelled by law to make reparation for a disaster arising from a latent defect in the machinery they are obliged to use, which no human skill or care could either have prevented or detected. In* the result, we come to the conclusion that the case of the plaintiff, so far as it relies on authority, fails in precedent; and, so far as it rests on principle, fails in reason. Consequently, the judgment of the Court of Queen's Bench in favor of the defendants will be affirmed."^ Where the evidence given is equally consistent with 'The carrier of passengers is liable for actual negligence, but not for accident, misfortune, act of God, or the public enemy. Sawyer v. Hannibal and St. Joseph R. R. Co., 37 Mo. 240. But a different rule is held in New York. See J/den v. N. r. Central R. R. Co., 26 N. Y. 102, and 13 N. Y. 9, where it was held that the carrier of pas- sengers is liable for the latent defects of his vehicles, and is bound to provide "roadworthy vehicles." In McPaddenw. N. Y. Central R. R. Co., 44 N. Y. 478, the case of Jlden v. N. T. Central R. R. Co. was criticised, explained, and although not repudiated, the court said, " it is a decision which should not be extended." In Ingalls v. Bills et al., 9 Metcalf, I, it was held, that where the accident arises from a hidden and internal defect, which a careful examination would not disclose, or sound judgment guard against, no action lies. 22 EXISTENCE OF NEGLJOENCE. there having been no negligence on the part of the de- fendant as with there having been negligence, it is not competent to the judge to leave it to the jury to find either alternative; such evidence must be taken as amounting to no proof of negligence. Cotton v. Wood, 8 Com. B., N. S. 568 ; 29 L. J., C. P. 223- I" T°°^^y V, The London, Brighton and South Coast Railway Co., 3 Com. B., N. S. 146 ; 27 L. J., C. P. 39, it appeared that there were on the platform two doors, one of which was marked " For gentlemen," and had a light over it, and led to an urinary, and the other was inscribed " Lamp-room," and was open, and had steps down- ward inside, and no lamp over it ; and the plaintiff, after asking his way of a stranger to the urinary, went in a hurry.through the door of the lamp-room and fell down the stairs and suffered injury thereby. Upon an action against the company for negligence. Cress- well, J,, directed a nonsuit, and upon a motion to set it aside the court refused a rule, Willes, J., saying, " In order to make out a case of negligence by the company, it ought to have been shown that the steps were more than ordinarily dangerous. In order to make a person guilty of negligence in such a case, it ought to be shown that he has used his property in such a way as to be likely to endanger the safety of others. It is impos- sible for any one so to dispose his property that a man may not by accident or negligence injure himself upon it." In Cornman v. The Eastern Counties Railway Co., 4 Hur. & Nor. 781 ; 29 L. J,, Ex. 94, it appeared that the plaintiff, being at a railway station in the daylight with a crowd of persons awaiting the arrival of a train, caught his foot against the edge of a weighing-machine, the base of which was raised a few inches above the level WHAT FACTS NOT EVIDENCE OF NEGLIGENCE. 23 of the platform, and falling, he broke his knee-cap. The machine was of a description in use at railway sta- tions, and was in its usual place adjoining the end of a counter on which passengers' luggage was placed on the arrival of trains, and was used for weighing luggage ; upon these facts it was held that there was no evidence of negligence to go to the jury. In giving judgment, Martin, B., said, " In all cases of this nature the first question to be considered is — was there any evidence of negligence at all ? That is a question to be determined by the judge. Here there was nothing more than that the platform was in the same state as it had been for five years. The company had for that space of time placed weighing-machines in a convenient place for weighing; the plaintiff had an opportunity of seeing the machine, and if he did not do so it is a misfortune for which the defendants are not liable. If they had left on the platform an open space into which a man might fall and be hurt, that would be evidence of negligence. However, there is nothing of the sort here; and on the whole of the case I can see no evidence of negligence by the defendants. If that be so, this action will not lie ; for if the injury which the plaintiff has received was the result of accident he must bear it." So, too, Bram- well, B., said, " It is not enough to say that there was some evidence ; a scintilla of evidence ; a mere surmise that there may have been negligence on the part of the defendants^ clearly would not justify the judge in leav- ing the case to the jury ; there must be evidence upon which they might reasonably and properly conclude that there was negligence." If premises are reasonably and ordinarily fit for safe use and an accident happen, it is no valid argument that the best possible precautions had not been used. 24 EXISTENCE OF NEGLIGENCE. In Crofter v. The Metropolitan Railway Co., L. R., i C. P. 300; ;i^ L. J., C. P. 132, the defendants had a staircase at one of their stations for the use of pas- sengers ; it led from the arrival platform to the street, was about six feet wide, had walls on each side, and had wooden steps nosed with brass which had become smooth from use. The plaintiff who, together with large numbers of others, had used these stairs without accident for months, on ascending them slipped on such brass nosing and hurt himself; and in an action, he relied on the evidence of a builder who said that brass nosings were improper on such a staircase, that lead would be the proper material as being less "slippery, and that there should be hand-rails. Upon this it was held that there was no evidence to go to the jury. For the plaintiff, it was contended, upon the authority of Longmore V. The Great Western Railway Co., L. J., C. P. 135, that the question of the proper construction of the staircase could not be withdrawn from the jury. Erie, C. J., in giving judgment, said, "In my judg- ment, according to common experience, this was an ordinary structure; there was nothing of a peculiar na- ture about it, nothing like a trap-door, or a way of falling through a railing. There was a wall on both sides and the passenger had only to lift his foot from step' to step. The brass having become smooth was said to be slippery at times, and there was evidence that lead would be less slippery than brass. In my opinion, the persons who admit passengers to walk up such stairs as these, whether of wood, or of wood with brass upon it, are not liable to an action because certain wit- nesses come and say they think that lead would have been safer. With regard to the hand-rail, I am of opinion that, from the nature of the structure, the passengers WHAT FACTS NOT EVIDENCE OF NEGLIGENCE. 25 going up this staircase had no right to claim that there should be a hand-rail, which in truth could only be used bv those passengers who went up nearest the wall, as of necessity several would go up abreast and only one could use the hand-rail. It was not a thing that or- dinary people would demand, and there is no law that requires of a railway company to gratify such a deniand. This was an ordinary structure and in an ordinary state and condition ; there was nothing at all of a peculiar nature about it, and those using it could see what it was that had to be guarded against. Perhaps there may be a distinction where a man has to descend from a height with an open balustrade, and there is a possi- bility of falling down from a considerable height ; but this was an ordinary staircase. Montague Smith, J., in his judgment in this case, said, " I think that a line must be drawn between suggestions of possible pre- cautions that may be taken, and evidence of negligence which is reasonable and proper to go to a jury. It may be very difficult to know where to place that line, but I think in this case that the facts lie on the side of possible precautions or possible alterations which might have been made, and which would have rendered the staircase more absolutely safe, and that there was no evidence at all of anything which amounted to negli- gence to go to the jury." If a party neglect a duty toward another, in conse- quence of which such other voluntarily does a dangerous act which results in personal injury to himself, he still has no ground of action against such party for such injury. Thus, in Siner and Wife v. The Great Western Railway Co., L. R., Ex. 50 ; 37 L. J., Ex. 98, the plaintiffs were passengers in an excursion train which was longer than the platform at the station where they 26 EXISTENCE OF NEGLIGENCE. wished to alight. The carriage in which they were riding stopped at a point where there was no platform, and the train was not backed into the station. The plaintiffs were neither told to keep their seats, nor were they invited to get out of the carriage. Several other passengers having got out, the husband followed, and his wife taking both his hands descended from the iron step to the ground without using the wooden foot- board under the step, and in so doing her knee was hurt. Upon an action being brought, the court held that the plaintiffs were not entitled to recover. Pigott, B., said, " It seems to me that the accident was owing to a fault on the plaintiff's part and ought not to be laid to the charge of the railway company. What is the negligence which the railway company have to an- swer? I really can not see what it is. This was an excursion train, and it seems a long one. The com- pany's servants did not refuse to put the train back. No request was made to them to do so. They did not do what was done in the case of Foy v. The London, Brighton and South Coast Railway Co., i8 Com. B., N. S. 225, pull up a train at a place where there was no plat- form, and then send or allow one of their servants to go and tell the passengers to alight in that place. . . It has been suggested, assuming the place to be danger- ous, that a porter should be in attendance at once to warn everybody not to get out there. But what is the meaning of that ? If it had been an infant or a child I could understand it being proper to say, ' Do not run over that precipice,' or ' Do not run and tumble down that very dangerous place.' But I suppose that in deal- ing with railway companies and railway works, ordinary people with their eyes open and their senses about them must be taken to know whether it is dangerous or not (FHAT FACTS NOT EVIDENCE OF NEGLIGENCE. 27 to alight in a particular place. If they do alight at a dangerous place how can they say that any accident which may follow is owing to the negligence of the com- pany, if they choose to do it without the company either inviting them to do so or making it necessary for them to do so? In this case it was the duty of the lady and her husband to request that the train should be put back." Bramwell, B., in the course of his judgment, said, " Assuming it was a dangerous place and' not a proper place within their undertaking, and consequently a place the finding of which would not be a sufficient compliance with their duty, where is the evidence in this case that had there been any time given to them, or any request made to them, they would not have backed to the platform, which was the proper place? I can not doubt but that they would have done so, or given some assistance to the plaintiiFs to get out Of course one knows perfectly well that people are not acquainted with what their rights are, and it does not occur to them that if they stay in the carriage and are put to inconvenience in being taken on, they haVe a remedy against the company by action for not pro- viding the proper means of getting out ; that is the truth and that is the law ; one can not help it if they do not know it ; but they have no right if they do not know it, to put themselves in peril and then make a claim upon the company for compensation. The learned Chief Baron differed from the other members of the court, but upon the case going to the Exchequer Chamber the decision of the court below was affirmed. L. R., 4 Ex. 117 ; 38 L. J., Ex. 67 ; see also Harrold V. The Great Western Railway Co., 14 Law Times Rep. 440 ; Adams v. The Lancashire and Yorkshire Railway 28 ' EXISTENCE OF NEGLIGENCE. Co., 38 L. J., C. P. 277 ; Plan v. The Midland Rail- way Co., 0.1 Law Times Rep. 836.^ So, in Bridges v. The North London Railway Co., L. R., 5 C. P. 459, «., an action was brought by a widow to recover compensation for the death of her husband through the defendants' negligence. The facts ot the case were, that a train of the defendants in which the deceased was traveling drew up at the Highbury Sta- tion ; the last carriage in which the deceased was sitting, however, being in a tunnel which terminated at the sta- tion and not at the platform. The name of the station was called out by a porter, and the deceased immediately got out though it was dark, and fell on the rails and was killed. The jury expressed a strong opinion that the train having stopped and the name of the station having been called out, the passengers had a right to presume that they might get out. Blackburn, J., how- ever, nonsuited the plaintiff, with leave to the plaintiff to move to enter a verdict for 1,200/. Upon a motion accordingly, the Court of Queen's Bench held, that the calling out of the name of the station did not neces- sarily entitle the passengers to get out, and that under all the circumstances of the case the deceased was not justified in doing so. In Petty v. The Great Western Railway Co., L. R,, 5 C. P. 46 [, »., an action was brought for injuries received by the plaintiff, a passen- ger by the defendants' line, through their negligence. The train in -which the plaintiff was traveling was a long one, and when it stopped at the station at which 'Passengers have no right to jump off the car while in motion (jz), but the mere preparation to leave is not negligence. Nichols v. Sixth Av. R. R. Co., 38 N. Y. 131. (a) Even though the passenger should be carried to the next station. Evans-aUIe R. R. Co. •/. Duncan, iS Ind. 44.1. WMA T FA CTS NOT E VIDE-:!! CE OF NEGL IGENCE. 29 the plaintiff wished to alight, the carriage in which the plaintiff was riding was beyond the platform and oppo- site a white path used by the porters for going to a signal-box, which in the dusk looked like a continuation of the platform. The train was finally stopped, ana the porters having called out the name of the station both before and after it stopped, the plaintiff got out and was injured. Willes, J., left several questions to the jury, who found them all in favor of the plaintiff, and leave was reserved to the defendants to move to enter a nonsuit, on the ground that there was no evi- dence to go to the jury. A rule having been obtained accordingly, Martin, B., thought there was evidence, and that the rule should be discharged. Bramwell, B., was of opinion that there should be a new trial, be- cause the question had not been distinctly left to the jury, whether the plaintiff really thought that the white path was the platform, considering that otherwise he ought to have seen the danger, or, if it was too dark to do so, ought not to have got out in the dark ; whilst Pigott, B., thought that there was no evidence, and that the rule should be made absolute. The case was ulti- mately sent down for a new trial and was eventually com- promised. In Whit taker v. The Manchester and Sheffield Railway Co., L. R., 5 C. P. 464, «., an action was brought for injuries received through the negligence of the defend- ants in carrying the plaintiff, by which he was injured. The train in which he was riding was allowed by the engine-driver to overshoot the platform, so that the car- riage in which he was sitting was opposite to the para- pet of a bridge beyond the platform, the top of which, in the dusk, looked like the platform ; the porter called out the name of the station, and the plaintiff having 30 EXISTENCE OF NEGLIGENCE. got out upon the parapet, in the bona fide belief that he was stepping on to the platform, fell over and was in- jured. The jury having returned a verdict for the plaintiff, a rule nisi for a new trial was obtained, on the grounds of misdirection, in leaving the case to the jury, and the verdict being against the weight pf evidence. In his judgment, Bovill, C. J., said, " In this case there was clear evidence of an invitation to the plaintiff to alight at a dangerous place. The train wa:s stopped and the name of the station called out before and af- terward ; it is not a matter of law but a question for the jury whether the calling out of the name of a sta- tion amounts under all the circumstances to an invita- tion to alight ; the plaintiff, too, was led to believe by the form of the parapet that there was a platform for him to get on to, which distinguishes this case from Bridges V. "The North London Railway Co. {ante, p. 28.) There was, moreover, evidence of negligence of the engine- driver in not stopping at the platform, but allowing the carriage in which the plaintiff was to overshoot it. The rule ought therefore to be discharged." Willes, J., also said, " The substance of the case is, that the defendants having agreed to carry the plaintiff safely, and afford him reasonable means .of alighting, through the negligence of their servants, induced him to believe that he might get out at a place which was a trap, he, getting out under that belief, was precipitated into a road which caused the injury. The defendants are, according to the ordi- nary rules of law, estopped from saying that he acted unreasonably in doing what he was led to do by their conduct. I think this case quite distinguishable from the case of Bridges v. The North London Railway Co., tho:ugh I must not be supposed to say that I agree with the majority of the court in that case, remembering the WHAT FACTS NOT EVIDENCE OF NEGLIGENCE. 31 necessity of keeping distinct the questions of fact and law, and I can not now understand how it could be said as a matter of law, that the calling out of the name of the station was not an invitation, since the inference to be drawn from it must depend upon all the circumstances of the case."^ In the case of Cockle v. The London and Southeastern Railway Co., L. R., 5 C. B. 457 ; 39 L. J., C. P. 226, the facts were these: The plaintiff was a passenger by a train from London to Deptford, which left London at 11.40 p. M., and traveled in the last carriage. The platform at Deptford was of sufficient length for the whole train to have been drawn up alongside of it, but in addition to the part at which passengers could alight. It extended for some distance, gradually receding from the rails on which the train approached. The train in question came to a stand-still with the body of the train alongside the platform, but the last carriage was opposite the receding part of the platform at which passengers could not alight, and about four feet from it. This end of the platform was dark, but there were lights at the other end, and there was a dim light in the carriage in which the plaintiff was. There was no evidence that the name of the station was called out, but the plaintiff on the train stopping, without calling to any of the com- pany's servants, some of whom were within hearing, opened the door and stepped out, expecting that she should step on to the platform, but in consequence of the distance between the carriage and the platform, she fell on to the rails instead, and was injured. The superin- tendent of the station said, on seeing the accident, that 'See Fuller v. Naugatuci R. R. Co., zi Conn. 557; South R. R. Co. V. Kendrki, 40 Miss. 374. 32 EXISTENCE OF NEGLTOENGE. it was the fault of the engine-driver that the train was not drawn up further, so that the last carriage should be alongside the platform. Upon these facts the jury found a verdict for the plaintiff, and the judge having reserved leave to the defendants to move to enter a non- suit, if there was no evidence which ought to have been left to the jury, a rule nisi was accordingly obtained, but upon its argument the court were equally divided : Bo- vill, C. J., and Brett, J,, being of opinion that there was evidence for the jury, and Keating, J., and Montagtie Smith, J., that there was not.^ It is very much to be regretted that the law upon so important and so frequently recurring a question should remain in any unsettled condition. In, the last cited cases each of the learned judges gave a very elaborate judgment. Keating, J., however, whilst he was of opinion that the rule should be made absolute, felt that the question was concluded by authority, saying, how- ever, that " had this been res integra I should be strongly of opinion that there was evidence to go to the jury." Bovill, C. J., however, in giving his opinion that the rule should be discharged, explained his views at length and with much force and lucidity. He said, " I can not find any case which directly decides the present question, and the differences of opinion upon the bench, as to the inference to be drawn from the facts, seem to me to show that it ought to have been left to the decision of a jury. What might be sufficient evidence in one case, might in another not be such as a jury would act upon. As an illustration I will take the question, what is an invitation to alight ? In some cases the question has ' This case has been taken by way of appeal to the Exchequer Cham- ber, where it is now pending. XFSAT FACTS NOT EVIDENCE OF NEGLIGENCE. 33 been raised as a question of law, whether the calling out of the name of the station amounts to an invitation to the passengers to alight ; but it seems to me that it may or may not amount to such an invitation, according to the time at which it takes place, the position of the train, and the nature of the station ; if the name is called out while the train is in motion, that clearly does not amount to an invitation to alight ; if the train has been brought to a stand-still, and the parties pass from carriage to car- riage calling out the name of the station, that might be an invitation to the passengers to get out. I think it should be decided by a jury to which class each case belongs, taking into consideration all the facts con- nected with it. In the same way I think there may be circumstances under which the mere stopping of the train may amount to an invitation to the passengers to alight, while there are other cases in which it would not: thus, if the train in the course of a journey stops, but not at a station, there is no such invitation ; if, on the other hand, it stops at one of the large metropolitan stations, or at the terminus, then I think that the mere fact that it has been brought to the ordinary place for stopping, and has stayed there a reasonable time, might amount to such an invitation. Who is to determine whether it does so or not ? It seems to me that this must be determined by the jury. So, if it be a station, which is not a terminus, it seems to me that, looking at the traffic and the nature of the station, the stoppage of the train there may or may not amount to an invitation ; and of this again I think the jury are the right persons to judge. In short, it seems to me to be impossible to say as matter of law, that either the stopping of the train, or the calling out of the name of the station, may 3 34 EXISTENCE OF NEGLIGENCE. not be an invitation to alight." It is to be hoped that a court of error will shortly clear up these doubts. In Mangan v. Atherton, L. R., i Ex. i^g ; 35^-1, Ex. 1 6 1, the defendant having placed a crushing machine in a public market for exhibition, a child was injured by- putting his fingers between the cog-wheels while another child was turning the handle; and it was held that the defendant was not liable for negligence in leaving the machine unguarded where it was, and that the injury sustained by the child was the direct result of the im- proper meddling with the machine.^ Where the accident has arisen in consequence of some unexpected and unusual condition of things which could not have been foreseen, no liability will attach, as where a railway was injured by an extraordinary flood, the state of the road being such that it was secure against or- dinary floods, in which case it was held that the company were not liable for an injury to a passenger from a mis- placement of rails occasioned by such flood. Withers v. The North Kent Railway Co., 27 L. J., Ex. 417. So, where an act of parliament directed a water company to lay down pipes with plugs in them as safety-valves to prevent the bursting of the pipes, and the plugs were properly made and of proper material, and a severe frost occurring, the plugs were prevented from acting, and the ' A person who enters the cars, not as a passenger, but to assist another, if he attempt to leave after they have started, or if they start while he is going out, and he still try to leave, he can not recover for an injury, even though the defendants were guilty of negligence in start- ing the cars. Lucas v. New Bedford R. R. Co., 6 Gray, 64. ^ A counter was left without authority in a public thoroughfare for two or three weeks ; a child, in climbing upon it, overturned it and was killed. He/d, the negligence of the parents in allowing the child to roam so far from home would prevent a recovery for damages. City of Chicago V. Starr, Adm'r, 42 111. 175. WHAT FACTS NOT EVIDENCE OF NEGLIGENCE. 85 pipes accordingly burst and flooded the plaintiff's cellar ; it was held, that there was no evidence of negligence against the defendants. Blyth v. The Birmingham Water Co., II Ex. 781. So, also, where the cause of the accident is altogether unexplained, as where a railway engine ran over the plaintiff, a child three years old, and it not appearing how the child got upon the line, or that there was any negligence upon the part of the company, a nonsuit was directed. Singleton v. The Eastern Counties Railway Co., 7 Com. B., N. S. 287.' Assuming that it \s prima facie evidence of negligence in a railway company that a train has got off the line, such evidence is entirely rebutted by proof that the acci- dent arose from the willful and wrongful act of a stranger. Latch v. The Rumner Railway Co., 27 L. J., Ex. 155. If a person is placed in a position of danger, it is his duty to observe additional caution. Thus, in Stubley v. The London and Northwestern Railway Co., L. R., i Ex. 13, the defendants' railway crossed a foot-path on the level, close to a station. At a swing-gate or turnstile erected by the company for foot passengers, which was some few yards from the line, the view of the line was very confined; but at the point at v/hich a passenger after passing the swing-gate would step on the line, there was a clear view of 300 yards in each direction. A woman stepped on to the line immediately after a train had passed in one direction, and was knocked down and killed by another train coming in the opposite direction on the further line of the rail ; at least thirty-six trains passed the spot every day. There were caution boards ^Lehman v. Brooklyn, 29 Barb. 234. 36 EXISTENCE OF NEGLIGENCE. near the crossing, but there was no person stationed there by the railway company to warn passengers of trains being due. A person, who was near the spot at the time the deceased was waiting for the first train to pass, called out to warn her that there was another train coming, which she could not see for the passing train, but she did not hear him. Upon these facts it was held that there was nothing in the circumstances to show that the railway company were guilty of negligence in not stationing a watchman at the crossing to warn people, or in not taking any other special precaution, and that, therefore, the company were not liable in an action brought by the husband of the deceaaed. In giving his judgment in the foregoing case, Bramwell, B., used the following very pertinent remarks upon cases of this kind : " It is very easy to use general expressions and to impute negligence" (which is the word commonly used), or "wrong" generally to the defendants, and to say that they ought to have had some person stationed for the purpose of actually detaining the deceased when tliere was imminent danger to her, as one should restrain a person from committing suicide. But let us look at the actual facts of the case, and see whether there is any reason why a person should be placed in danger from the circumstance of the gate being where it is. It is said that a man standing at the gate (which is on a bank), he can not see a train unless it is within thirty yards of the level crossing ; well, but when at the gate the passen- ger has to go some yards further down the bank before he reaches the railway, and when he gets on a level with the line, he then, before stepping on the line, as I un- derstand, sees 300 yards in each direction. That is a little more than the sixth of a mile, and a train running at thirty miles an hour would take twenty seconds to WSAT FACTS NOT EVIDENCE OF NEGLIGENCE. 37 traverse the sixth of a mile. Now, having regard to the width of the line, is it necessary that there should have been anybody there to tell the deceased that she would be quite safe if she would only take common caution? Why warn people of that which they can see if they will only take the trouble to look about them ? Then it is said, here the trains are double and they meet each other at this very point, and therefore there should be some- body to warn people. To warn people to do what ? If they will not take the trouble to think, not only on railways, but on ordinary roads, that when on one side of the road they must have their eyes open to what is going on on the other side of the road ? If people for- get for the moment what they are about, are they to be warned ? To me it seems too much to say that the community at large can by reason of their own folly and carelessness impose such a duty on a company. It would be a very mischievous thing if they could do so. The consequence would be, that at every pr--t of a rail- way, or a canal, or a road, where people's improvidence might put them into danger, somebody ought to be sta- tioned to say, ' Exercise your common sense and do not cross, or you will cross at your peril if you do.' I am very much inclined to think that all regulations and provisions framed for the purpose of taking care of people when they o ught to take care of themselves are mischievous."^ See, also, to the same efFecty Shelton v. The London 'A person attempting to cross the track of a railroad must make use of his ordinary faculties, to ascertain if there is danger in the attempt, or he will be held guilty of negligence. Gonzales v. N. T. and H. R. R. Co., 38 N. Y. 440. To the same effect. North Penn. R. R. Co. v. Keileman, 49 Penn. St. 60. 38 EXISTENCE OF NEGLIGENCE. and Northwestern Railway Co., L. R., 1 C, P. 63 1 ; 36 L. J., C. P. 249. In order to provide as far as possible against accidents arising where a railway crosses a public road at a level, it is by 8 and 9 Vict., c. 20 (The Railway Clauses Consolidation Act, 1845), s. 47 enacted that: "If the railway cross any turnpike-road or public carriage-road on a level, the company shall erect, and at all times maintain, good and sufficient gates across such road on each side of the railway where the same shall communicate therewith, and shall employ proper persons to open and shut such gates, and such gates shall be kept constantly closed across such road on both sides of the railway, except during the time when horses, cattle, carts, or carriages passing along the same shall have to cross such railway ; and suc}i gates shall be of such dimensions and so constructed as when closed to fence in the railway and prevent cattle or horses passing along the road from entering upon the railway; and the person intrusted with the care of such gates shall cause the same to be closed as soon as such horses, cattle, carts, or carriages shall have passed through the same, under a penalty of forty shillings for every default therein." The construction put upon this section is to make the road a highway only when the gates are opened by one of the company's servants ; and if, there being no servant there, though after waiting a reasonable time, a passenger open the gates and attempt to pass through with his horse and carriage and damage ensue to him, the company will not be liable. See Wyatt v. The Great IVestern Railway Co., 6 Best & S. 709 ; 34 L. J., Q. B. 204. When a trade, business, or occupation, the carrying on WHAT FACTS NOT EVIDENCE OF NEGLIGENCE. 39 of which is attended with danger or probable incon- venience to others, is authorized by the legislature, those who conduct it will not be liable for injuries if they have acted^with care and skill, and have adopted the best known means for avoiding mischief. ^In Vaughan v. 'The 'Taff Vale Railway Co., 5 Hur. & \l. 679 ; 29 L. J., Ex. 247, it was held by the Ex- chequer Chamber (overruling the decision of the Ex- chequer, 28 L. J., Ex. 41), that a railway /company are not responsible for an accidental fire caused by a spark falling from one of their engines upon premises adjoin- ing the railway, if they have taken every precaution that science can suggest to prevent injury; that they are not liable unless they are guilty of some negligence in fact, and that neligence can not be implied from the there employment of locomotive engines, as the use of them is expressly permitted by the legislature. In giving his judgment, Cockburn, C. J., said: "Where the legislature has sanctioned the use of a particular means for a given purpose, it appears to me that that sanction carries with it this consequence, that the use of the means itself for that purpose (provided every precaution which the nature of the case suggests has been observed) is not an act for which an action lies independent of negligence'." So, too, Blackburn, J., said : " No doubt there was some. evidence of negligence on the part of the defendants, for the fact of the sparks coming from the locomotive unexplained would be evidence of negligence. But here the case finds that it is to be taken as a fact that the defendants had taken ^A railroad company, by failing to provide the most approved ap- pliances for arresting sparks from their engines, becomes liable for all casualties occasioned thereby. ///. C. R. R. Co. v. McClelland, 42 111. 35S- 40 EXISTENCE OF NEGLIGENCE. all the precautions that science could suggest to prevent their engines emitting sparks. The question then is, whether the railway company are liable for an accident arising from the use of their engines, though they have been guilty of no negligence except in the very using of them, if that be negligence ? The point, however, seems to me to be settled by The King v. Pease, 4 B. & Ad. 30, which decided that a railway company were not indictable for the noise made by the locomotives, which would have been a public nuisance but for the permission of the legislature. The case seems to me to decide that no action will lie for an injury resulting from the use of a locomotive if there be no negligence in the use." See also Whitehouse v. The Birmingham Canal Co., 27 L. J., Ex. 25; Hammersmith and City Railway Co. v. Brand, L. R(^H. L. 171; 38 L. J., Q. B. 265. It is of course a question of fact for the jury, whether or not the company have availed them- selves of the best means of avoiding accidents, for if they have not done so they will be liable in damages. In Freemantle V The London and Northwestern Rail- way Co., 10 Com. B., N. S. 89; 31 L. J., C. P. 12, upon a trial against the company for an injury to the plaintiff's property, caused by the emission of sparks from one of their locomotive engines, the learned judge, after telling the jury that the evidence for the defendants was extremely powerful to show that the engine was of the best known construction, but that the evidence of the plaintiff's witnesses was, that in their opinion the risk of causing mischief by sparks from the engine in question was not impropable, and that the engine was so constructed as to be dangerous without a precaution of some kind, left it to the jury to decide whether they believed either the plaintiff's or the defendants' witn^esses WHAT FACTS NOT EVIDENCE OF NEGLIGENCE. 41 on this point; and he also left it to the jury to consider whether each set of witnesses might not have been mistaken in the degree of excellence or of defect imputed to the engine, and if so, that it was still for the jury to decide either for the company, if no further precautions could with reason be required, — or, for the plaintiff if they were in reason requisite. Upon the jury returning a verdict for the plaintiff, and a motion for a new trial on the ground of misdirection, the court refused the rule, holding, that the direction was right, there being a conflict of testimony upon a question of degree, which was necessarily for the jury.-^ See also Dimmock v. The North Staffordshire Railway Co., 4 Fost. & F. 1058. So, also, in Smith v. The London and Southwestern Railway Co., 29 L. J., C. P. 68, in an action charging that, by the negligence of the defendants in the manage- ment of their railway engines and banks, cut grass, etc., was heaped on the banks and ignited, and a fire occa- sioned which spread along a stubble-field to the plaintiff's cottage and set it on /fire. It appeared that the summer being exceedingly hot, the country in an unusually dry and combustible state, and fires in consequence happen- ing, the hedges and grass on the banks of the railway had been trimmed, and the trimmings left on the banks for a fortnight so as to become highly combustible ; that some hours before the accident, the defendants' 'See Sheltonw. Hudson River R. R. Co., 29 Barb. 226; 37 Mo. 278. In Stuart y. Hazaley, 22 Barb 619, it was held that although the de- fendant, in burning the wood fallow and timber on his own land, and a wind had carried the flames and destroyed the crops on the plaintiff's land, that without proof of negligence or misconduct on the part of the former, an action for damages would not lie. Calkins v. Barger, 44 Barb. 424; Averett y. Murrell, 4 Jones Law, 323 ; Rockwoody. Wilson. 1 1 Cush. 221. 42 EXISTENCE OF NEGLIGENCE. workmen were seen burning these trimmings about half a miie from the spot where the fire origiriated and work- ing toward it ; that a short time before the fire broke out these men were finishing their dinner, and smoking on the bank opposite to the spot ; that a train passed and shortly after the fire began ; that these men (who must have been on the spot and were not called by the defendants) tried in vain to put it out; that it burned through the hedge, and there being a high wind ran for 500 yards diagonally across a stubble-field, and set fire to the plaintiff's cottage, which was separated from the field by a lane, and was distant from the nearest part of the railway by 200 yards, and from the spot where the fire originated about 500 yards. A verdict for the, plaintiff having been taken by consent, with leave to the defendants to move to set it aside, and enter a nonsuit, the court to draw inferences of fact, it was held by a majority of the court (Bovill, C. J., and Keating, J., Brett, J., dissenting), that there was evidence of negli- gence to go to the jury. In giving his judgment, the Chief Justice explains the law upon the subject. He says, "There was abundant evidence to show that the fire was caused by the engines of the company. It is true that this alone would not be sufficient to give the plaintiff a cause of action, because the legislature had thought fit to authorize the use by the company of loco- motives, and there was no evidence that they were im- properly constructed or carelessly managed. Yet the company were using machines which were dangerous and in the habit of emitting fire, and being authorized to use them they must look to surrounding circumstances when using them ; and there can be no doubt that en- gines emit sparks more or less according to the way in which they are used, and the company may regulate their WHAT FACTS NOT EVIDENCE OF NEGLIGENCE. 43 speed and otherwise alter their user; so that the case Is very different from that of an extraordinary frost affect- ing water-pipes, which having been laid down according to ordinary experience can not be taken up again ; but a railway company, if there be particular circumstances of danger, may regulate the user of their engines. Here the weather had been dry for some time, and on the sides of the railway had been left an accumulation of the trimmings of the hedges and grass-banks of the line. Under ordinary circumstances one does not expect hedges to ignite, but a collection of dry material and dry hedges may ignite ; and in answer to the suggestion that no one would anticipate that a cottage at the dis- tance of the plaintiff's would be in danger from a fire on the line — I would suggest the question of, whether, if any ordinarily reasonable men had been in the cot- tage, they would have remained there in assurance of security when they knew that only a hedge and stubble- field intervened between it and this burning material ? The company, therefore, were in this position : they had allowed an accumulation of hedge trimmings and cut- grass to remain on the banks of the railway ; they were using engines which emitted sparks ; the weather was dry ; there was danger of fire, and of that fire spread- ing and being dangerous ; the result being a serious loss to the plaintiff, who is in no way to blame. And though it is not in every case where a man has suffered he can recover, and in order to do so he must show a breach of duty, it seems to me that the company must regard surrounding circumstances ; that whether they can be taken to have reasonably contemplated that the result of a fire on the line would destroy the plaintiff's cottage depends not merely on proximity but the nature of the materials ; that looking to the weather, the com- 44 EXISTENCE OF NEGLIGENCE. bustible material on the banks, the combustibility of the stubble, all tending to reduce the distance, there was evidence for the jury from which they might come to the conclusion that the defendants were guilty of negligence ; and that therefore this rule should be dis- charged." . {See the next section.) ^ Sec. 2. — What facts are evidence of negligence. Although, as said by Erie, C. J., in Ford v. The Lon- don and Southwestern Railway Co., i Fost. & F. 730, " Negligence is not to be defined, because it involves some inquiry as to the degree of care required, and that is the degree which the jury think is reasonable to be required from the parties, considering all the circum- stances," it will be found from the decided cases, that there are certain general principles which, in most in- stances, will materially assist in determining whether it exists or not ; thus, as a rule, it will be assumed, that if a railway train run off the rails, there is negligence on the part of the company [Carpue v. The London and Brighton Railway Co., 5 Q. B. 751) ; although, as has already been seen, this accident may be consistent with *This case was affirmed in the Exchequer, and Kelly, C. B., in affirming the judgment below, said: "I think the law is that if they (defendants) were aware that those heaps were lying by the side of the rails, and that it was a hot season, and that, therefore, by being left there the heaps were likely to catch fire, the defendants were bound to provide against all circumstances which might result from this, and were responsible for all the natural consequences of it. I think there was negligence in the defendants in not removing these trimmings, and that they thus became responsible for all the consequences of their con- duct, and that the mere fact of the distance of this cottage from the point where the fire broke out does not affect their liability." Excheq. Law Rep., C. L. Series, 1871, part I. See also ///. C. R. R. v. Mills, 42 III. 409. WHAT FACTS EVIDENCE OF NEGLIGENCE. 45 the absence of negligence.^ Bird v. The Great Northern Railway Co., 28 L. J., Ex. 3, So, a collision between trains of the same company would be prima facie evi- dence of negligence. Skinner v. The London and Brighton Railway Co., 5 Ex. 787.^ Where a stage-coach, which is overloaded, breaks down, the excess in the number of the passengers has been held to be evidence that the accident arose from overloading. Israel v. Clark, 4 Esp. 259. So, there are certain accidents of such a nature that negligence may be presumed from the fact of their oc- currence. Thus, the plaintiff while walking in a street, in front of the house of a flour-dealer, was injured by a barrel of flour falling upon him from an upper win- dow ; whereupon it was held, that the mere fact of the accident, without any proof of the circumstances under which it occurred, was evidence of negligence to go to the jury in an action against the flour-dealer. In the course of the argument. Pollock, C. B., observed: " There are certain cases of which it may be said res ipsa loquitur, and this seems to be one of them. The courts have held that from certain occurrences negli- gence may be presumed — railway accidents, for exam- ple." In giving judgment the same learned judge very perspicuously explained the law upon the subject. He said : " I think it would be clearly wrong to lay down as a rule, that no presumption of negligence can arise from any accident. Suppose, in this very case, that the barrel had merely rolled out of the warehouse window, ^Nash. (fe Chat. R. R. Co. v. Messina, i Sneed. ^In case of a collision between a cart and a railroad car, where both are running side by side on the street, the former must show that the collision proceeded from the negligent acts of the latter. Suydam v. The Grand Street R. R. Co., 41 Barb. 375. 46 EXISTENCE OF NEGLIGENCE. and fallen upon the plaintiff, how could he possibly as- certain how it had occurred ? Those who have the care of the barrels should take care that they do not roll out, and I think that is a case where it seems to me clear beyond doubt there would be prima facie evidence of negligence. It can not be in the ordinary course of business, without some negligence ; and to say that the plaintiff, who complains of that, is to call witAesses from the upper warehouse where the thing happened, or to go about and inquire what the cause was, would be, as it seems to me, unjust. So, in the construction or repairing of a house or building, or in putting chimney- pots on the roof of it — if a passenger passing along the road is damaged by something coming down, which according to the ordinary course of doing such work ought not to come down into the street, I think the accident alone would be sufficient evidence of negli- gence. Or, if you set an article that is calculated to do damage altogether in a wrong place, and it does a mis- chief, then, those who are responsible for its being in the right place, and under proper control, are, I think, prima facie responsible for the damage, and the burden is cast upon them of showing such a state of things as to relieve them from responsibility." In the same case, Channell, B., said: "The facts are, that a barrel of flour came from a window in a house or shop, of which the defendant was occupier; and he is responsible if any- body is responsible. Then the question is, whether there is any evidence, of negligence that ought to go to the jury — not a mere scintilla of evidence, but any evi- dence to entitle the plaintiff to the verdict ? I am of opinion that there is abundant evidence. I think that a person who has a warehouse by the side of a public way, and assumes to himself a right to lower from the WHAT FACTS EVIDENCE OF NEGLIGENCE. 47 upper part of the premises a barrel of flour into a cart standing by, has a care and a duty thrown on him. I quite agree in the argument, that it is not every accident that would warrant the inference of negligence. On the other hand, I entirely dissent from the doctrine, that there is no accident which in itself would warrant the inference of negligence. There was evidence to go to the jury, and the rule must be made absolute to enter the verdict for the plaintiff." ^ Byrne v. Boadle, 22 L. J., Ex. 13. See also Scott v. The London Dock Co., 3 Hur. & C. S9^ '^ 34 L.. J., Ex. 17; Burke v. The Manchester, Sheffield and Lincolnshire Railway Co., 11 Law Times Rep. 442. So, in Briggs v. Oliver, 4 Hur. & C. 403 ; 35 L. J. Ex. 163, It appeared that the plaintiff, on going to the doorway of a house in which the defendant had offices, was pushed out of the way by a servant of the defend- ant, who was watching a packing-case which belonged to the defendant, and was leaning against the wall of the house. The plaintiff fell, and the packing-case fell on his foot, and injured him. There was no evidence as to who placed the packing-case against the wall, or what caused its fall. The court (Martin, B., dissentiente) held that there was a. prima facie case against the defend- ant to go to the jury, the fall of the pacrking-case being, some evidence that it had been improperly placed against the wall. In Nicholson v. The Lancashire and Yorkshire Railway Co., 3 Hur. & C. 534; 34 L. J., Ex. 84, it appeared that the level crossing between the platforms at a rail- way station, which formed part of the "way out" for passengers arriving at such platform, was blocked for 'McMahon v. Davidson, 12 Min. 357. 48 EXISTENCE OF NEGLIGENCE. more than ten minutes by the train in which the plaint- iff arrived there. Under such circumstances it was usual for the arrival passengers — and the railway com- pany did not object to the practice — to walk alongside, and round the end of the train, in order to cross the line. The plaintiff in so doing, in the dark, stumbled over a hamper, which had been taken out of the train, and placed at the side of the line, some distance from the platform. Upon this, it was held, that there was evidence of negligence on the part of the railway com- pany.^ In Holmes v. The Northeastern Railway Co., L. R., 4 Ex. 254; 38 L. J., Ex. i6i, it appeared that a coal depot of a railway company had a railway siding, under which were cells, into which the coals were tipped from the trucks, so as to fall into the carts of the consignees, Vv'hich were backed into the cells from the roadway, which was at a lower level than the railway. It was the practice of the persons coming to receive the coals to assist the defendants' servants in tipping their coals, and for that purpose they passed along a flagged pathway on the' siding, running by the side of the trucks. Some coals arrived consigned to the plaintiff, who went to re- ceive delivery, but found that his truck could not be tipped, as the cells were all full. With the permission of the station-master, he passed along the flagged path- way, till he came to his coals, stepped on to the buffer of the truck, and threw down some pieces of coal to the roadway, where his servant was wfth a cart. He stepped back on to the flagged way, and one of. the flags, which was in an insecure state, gave way, an|d he fell into one ^ Warren y. Fitchburg R. R. C9., 8 Allen, 227. See aho Mela tyre I. N. r. C. R. R. Co., 43 Barb. 532. / WHAT FACTS EVIDENCE OF NEGLIGENCE. 49 of the cells, and was injured. Upon these facts it was held, that although the plaintiff in getting his coals was not doing so in the ordinary mode, yet the defendants were under the same obligation to provide for his safety as if he had been pursuing the ordinary mode, and that he was not a mere licensee, but engaged with the consent of the defendants in doing something incidental to the completion of the contract between himself and the de- fendants, in which both he and the defendants had an interest, and therefore, the defendants were bound to take due and reasonable care for his security upon their premises. And in Kearney v^ The London., Brighton and South Coast Railway Co., ;^^ L. J., Q. B. 200 ; 22 Law Times Kep. 886, where it appeared that whilst the plaintiff was passing along a highway under a girder railway- bridge belonging to the defendants, which rested on one side on a perpendicular brick wall with pilasters, a brick fell from the top of one of the pilasters on which a girder rested and caused personal injury to the plaint- iff. A train had passed immediately before. In an action against the railway company, the jury having re- turned a verdict for the plaintiff, it was held, that the falling of the brick was under the circumstances of itself prima facie evidence of negligence on the part of the de- fendants in keeping the bridge in a proper state of re- pair, and, in the absence of any evidence to rebut it, was sufficient to sustain the verdict. See Fordham v. The London, Brighton and South Coast Railway Co., 38 L. J., C. P. 324, where the hand of a passenger was injured by the closing of the door of a railway carriage by the guard. If a structure, which the defendants invite the public to use, is defectively or carelessly constructed, whereby 4 50 EXISTENCE OF NEGLIGENCE. a person lawfully upon it is injured, the defendants will be liable in damages, notwithstanding they had no knowl- edge of its defective condition, and it had been erected by a competent person. Thus, where an injury was caused to the plaintiff by falling from a bridge which crossed the defendants' railway and which was defectively protected, it was held, that the defendants were liable, notwithstanding it had been constantly used by the pub- lic without any accident. Longmore v. The Great West- ern Railway Co., 35 L. J., C. P. 135. ' So, in Francis v. Cockrell, L. R., 5 Q. B. 184; 39 L. J., Q. B. 113, where the defendant, acting on behalf of a committee of which he was a member, employed certain persons to^ erect and let to them a temporary stand for the use of persons desirous of seeing a steeple-chase, and the stand having been erected, the defendant on behalf of himself and his colleagues received money from the plaintiff and other visitors for the use of places on the stand, and where it appeared that the contractors were competent and proper persons to be employed for the purpose, but it was in fact so negligently erected that it fell, and caused injury to the plaintiff while he was using it, look- ing at the races, neither the plaintiff nor the defendant being aware of the faulty construction — it was held, that the contract by the defendant, to be implied from the relatiot! which existed between him and the plaintiff, was, that due care had been used not only bv the de- fendant and his servants, but by the persons whom he employed to erect the stand, and that consequently he was liable for the injury to the plaintiff. In the course of delivering the considered judgment of the court, Hannen, J., said, "In the present case it is not found that the defendant was himself wanting in due care. He employed competent and proper per- WHAT FACTS EVIDENCE OF NEGLIGENCE. 51 sons who had efficiently executed similar work on pre- vious occasions. The circumstance that the defendant did not himself survey or employ any one to survey the stand after it was erected, does not in itself establish any charge of negligence ; for it does not appear that any defect was such as could on inspection, and even if it had been it can not be laid down as necessarily a want of care not to inspect, although it would in some circum- stances be evidence from which a jury might properly find that due care had not been taken. It becomes nec- essary, therefore, for us to consider whether the con- tract by the defendant, to be implied from the relation which existed between him and the plaintiff, was, that due care had been used not only by the defendant and his servants, but by the persons whom he employed as independent contractors to erect the stand. It is said, in the judgment of the Court of Exchequer Chamber in Readhead v. The Midland Railway Co., that ' warran- ties implied by law are for the most part founded on the pres^umed intention of the parties and ought cer- tainly to be founded on reason, and with a just regard to the interests of the party who is supposed to give the warranty as well as of the party to whom it is sup- posed to be given.' Applying this rule to the present case, we think that the contract by the defendant with the plaintiff did contain an implied warranty that due care had been used in the construction of the stand by those whom the defendant had employed to do the work, as well as by himself." Where from the nature of the use of the defendants' property there is great risk of injury to individuals, the defendants are bound to take additional care. Thus, in Bilbee v. The London, Brighton and South Coast Railway Co., 1 8 Com. B., N. S. 584; 34 L. J-, C. P. 182, it 52 EXISTENCE OF NEQLIGENGE. appeared that the defendants' railway crossed a carriage- road on a level; there were locked carriage-gates and swing-gates for foot passengers ; the trains were frequent, the crossing was on a level, and a bridge near it over the line obstructed the view in that direction. Two trains passed about the same time, and whilst the plaint- iff's attention was directed to one, the other knocked him down. A verdict having been returned for the plaintiff, and a rule nisi obtained to set it aside, Erie, C. J., in discharging it, said, "The ground of my de- cision is, the great degree of risk in this place ; there were many trains, it was on a curve and near a bridge. The noises of the different trains would interfere with each other, and the bridge would obstruct the sight, and I am therefore unable to say that the judge was bound to nonsuit." ^ In Stapley v. "The London, Brighton and South Coast Railway Co., L. R., i Ex. 21 ; 35 L. J., Ex. 7, the facts were these : The defendants' railway crossed a highway on a level close to a station. On each side of the rail- way were gates across the carriage-way, and swing-gates or turnstiles for foot passengers. By the defendants' rules and regulations the carriage-gates were always to be kept closed across the carriage-way except when opened to allow carriages to cross, and they were never to be opened until the gateman had satisfied himself that no train was due or in sight. A foot passenger crossing the railway was killed by an express train which passed through the station without stopping. There was no servant of the defendants at the gate or on the platform of the station. The carriage-gate on the side from which the deceased came was seen after the accident to be partly ^Philadelphia R. R. Co. v. Hagan, 47 Penn. St. 244. WHAT FACTS EVIDENCE OF NEGLIGENCE. 53 open. It had been shut half an hour previously, and there was no evidence of how it came to be open, or whether the deceased came through the carriage-gate or through the turnstile. The train was four minutes overdue. There was a curve in the line at the spot, and the train would not be visible to a person standing at the gate till it came within 600 yards. The deceased was deaf. He was in the habit of coming to the station and knew the times of the trains. In an action brought by the executors of the deceased, it was held that a foot passenger who found the carriage-gate open would be led to believe that no train was due, and that upon the whole case there was some evidence of negligence to be left to the jury. See sec. 47 of The Railway Clauses Consolidation Act, 1845, 8 and 9 Vict. c. 20 {ante, p. 38). When a railway crosses any turnpike road or public carriage-way on a level, they must under the provisions of 8 and 9 Vict., c. 20, s. 47, unless otherwise author- ized by their special act, erect and at all times maintain good and sufficient gates across such road on each side of the railway where the same shall communicate there- with, and employ proper persons to open and shut such gates and keep them constantly closed across the road on both sides of the railway, except during the time when horses, cattle, carts, or carriages passing along the road shall have to cross the railway : and the gates must be of such dimensions and so constructed as when closed to fence in the railway and prevent cattle or horses pass- ing along the road from entering upon the railway. Wherever this section of the statute or one of a similar import is in force, it imposes upon the railway company governed by it the duty of closing the gates across pub- lic farriage-roads carefully against everything passing lawfully or unlawfully along the high road. Where, 54 ' EXISTENCE OF NEGLIGENCE. therefore, the plaintiff's horses strayed from his field into the high road and passed from thence through an open gate, and got upon a railway and were killed by a passing train, it was held, that the railway company was responsible for the loss, as the obligation to keep the gates closed imposed upon them the duty of closing them carefully against everything passing lawfully or unlawfully along the high road. Fawcett v. The Tork and North Midland Railway Co., i6 Q. B. 6i8. It has before been seen {ante, p. 3 9), that where a railway company are acting under powers from the legislature, and in the exercise of those powers they cause damage to a third party, they will not be liable if they have used due care and skill and have availed themselves of the best methods which science affords for avoiding injury to others. If, however, they have not this legislative protection they will be liable, notwithstanding they may have taken all reasonable precautions to prevent injury being sustained. Thus, in Jones v. The Festiniog Rail- way Co., L. R., 3 Q. B. 733 ; 37 L. J., Q. B. 214, the defendants used a locomotive engine which while pass- ing over the line emitted sparks, although all reasonable precautions had been taken to prevent its doing so. The sparks were blown to a haystack of the plaintiff, which was burnt in consequence. The act under which the defendants were incorporated did not authorize them to use locomotive machines ; and it was therefore held that if the defendants chose to use such engines they would do so at their peril. See Freemantle v. The Lon- don and Northwestern Railway Co., 10 Com. B., N. S, 88 ; 31 L. J., C. P. 12, ant^, p. 40, where the defend- ants were held liable for damage caused by sparks from their engine ; and also Smith v. The London and South- westeen Railway Co., 39 L, J,, C. P. 68 {ante, p. 41), OF CONTRIBUTORY NEGLIOENCE. 55 where a fire was caused by the engine of the defend- ants. Refreshment rooms and a coal cellar at a railway sta- tion were let by the company to one S., the opening for putting coals into the cellar being on the arrival plat- form. A train coming in whilst the servants of the coal merchant were shooting coals into the cellar for S., the plaintiff, a passenger, whilst passing in the usual way out of the station without any fault of his own, fell into the cellar-opening which the coal merchant's servants had negligently left insufficiently guarded; itvjvas upon this held, that S., the occupier of the refreshment rooms and cellar, was responsible for this negligence. Pickard V. Smith, lo Com. B., N. S. 470. "' Sec. 3. — Of contributory negligence. Although the defendant may have been guilty of neg- ligence, yet, if the plaintiff has himself been guilty of such negligence that the accident would not otherwise have occurred, he can not recover damages, for he can not complain of an injury which his own negligence has contributed to bring about. Waite v. The Northeastern Railway Co., Ell. Bla. & Ell. 719; 28 L. J., Q. B. 258.^ In Tuffv. Warman, 2 Com. B., N. S. 740; 27 L. J., C. P. 322 (Ex. Ch.), Wightman, J., in deliver- ing the judgment of the court, explained the law upon 'If the plaintifr has contributed to the injury ne should be non- suited. Haringv. The N. Y. Central R. R. Co., 13 Barb. 15; Living- stone w. Adams, 8 Cowen, 175. In a case oi a collision between a sleigh and a train at a crossing. Sav- age, C. J., held, the true rule undoubtedly is that the degree and measure of care and capacity are precisely the same; each is bound to take such care as men of ordinary sense, prudence, and capacity would take under like circumstances in the conduct and management of their respective vehicles. Shaw v. Boston and W. R. R. Co., 8 Gray, 45. 56 EXISTENCE OF NEGLIGENCE. the subject with great clearness. He said, " It appears to us that the proper question for the jury in this case, as indeed of all others of a like kind, is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened? In the first case the plaint- iff would be entitled to recover ; in the latter, not, as but for his own misconduct the misfortune would not have happened. Mere negligence or want of ordinary care or caution would not, however, have disentitled him to recover unless it was such that but for the negli- gence and want of ordinary care and caution the misfor- tune would not have happened ; or if the defendant might by the exercise of caution on his part have avoided the consequences of the neglect or carelessness of the plaintiff." See also Flower v. Adam, i Taunt. In Bridge v. TChe Grand Junction Railway Co., 3 Mee, &c W. 244, Parke, B., said, "Although there may have been negligence on the part of the plaintiff, yet unless he might by the exercise of ordinary care have avoided ^But see Murphy v. Deane, loi Mass. 455, where this case of Tuff V. Warman is criticised and repudiated. In Eckert v. The Long Island R. R. Co., 43 N. Y. 502, the plaintiff's intestate rushed in front of a train, to save a child from being crushed, and lost his own life ; it was held, "that his voluntarily exposing himself to the danger, for the purpose of saving the child's life, was not, as matter 0/ law, negligence on his part precluding a recovery, and that the court did not err in refusing to non- suit on that ground." See also Holby v. Boston Gaslight Co., 8 Gray, 1 23, as to the caution and care required on the part of the plaintiff. OP CONTRIBUTORY NEGLIGENCE. 57 the consequences of the defendants' negligence, he is entitled to recover; if by ordinary care he might have avoided this, he is the author of his own wrong." Thus, if an obstruction has been negligently placed in a public thoroughfare by the defendant, and the plaintiff has rid- den against it, he can not recover damages from the de- fendant if it appear that he was riding at an improper pace, or was intoxicated, and could have avoided the obstruction if he had ridden with reasonable and or- dinary care. Butterfield v. Forrester., 1 1 East, 60 ; Clay- ards v. Dethick, 12 Q. B. 446.^ If a person sees a car- riage coming furiously along the road and he willfully crosses the street before it, he can not maintain an action for damages against the driver or owner of the carriage. Woolf v. Beard, 8 C. & P. 373. As far as this rule operates it applies equally where the parties injured are children of tender age. Mangan v. Atherton, L. R., i Ex. 1^9 '1 ZS L. J., Ex. 161 ; Singleton v. The Eastern Counties Railway Co., 7 Com. B., N. S. 287. The plaint- iff, a child five years old, was under the care of its grand- mother, who purchased a railway ticket for him and one for herself to go from A. to B. on the defendants' rail- way. While crossing the line at A. to be ready for their train they were both knocked down and^ injured by another train. The accident was partly owing to the defendants' negligence, and partly to such negligence on the part of the grandmother as would disentitle her to recover damages from the defendants for the injury. Upon that, it was held that the plaintiff, not being able to take care of himself, and being under his grand- ' The jury must decide whether his intoxication contributed to the injury. Cassidy v. Stockbridge, 21 Vt. 391. See also Alger v. Lowell, 3 Allen, 402; 20 111, 235. 58 EXISTENCE OF NEGLIGENCE. mother's care, there was such an identification between the grandmother and the plaintiff that by reason of her negligence the plaintiff was unable to maintain an action for the injury to himself. Waite v. The Northeastern Railway Co., Ell. Bla. & Ell. 728 ; 28 L. J., Q. B. 258 (Ex. Ch.).^ Contributory negligence, however, will not disentitle the plaintiff to recover damages, unless it be such that but for such negligence the injury would not have been sustained ; nor if the defendant might by the exercise of care on his part have avoided the consequences of the negligence of the plaintiff. Tuff v. Warman (supra). Thus, where the plaintiff negligently left his donkey in a public highway, tied together by the fore-feet, and the ' The English doctrine, that where the negligence or fault of an adult would bar his right of action for an injury, the like negligence of the parent or custodian of an infant would also prevent the infant from recovering damages, is followed in New York, Massachusetts, and some other States, but is denied in others. In G/assery v. Hesto?wille, 57 Penn. St. 172, it was held, "although an infant of tender years may recover against a wrong-doer for an injury which was partly caused by his own imprudent act, an adult father can not." A child four years old was run over by a tender and engine, which was passing slowly through the street in the vicinity of several schools. The wood was piled so high on the tender that it obstructed the view of the engineer. The child was unattended, but its aunt, in attempting to rescue it, was guilty of negligence which contributed to the accident, and caused her own death. In admitting the right of the child to re- cover damages, the court say : " To a child of plaintiff's years no con- tributory negligence can be imputed. . . . She is not precluded from recovering against one tort feasor by showing that others have borne a share in it." The N. P. R. R. Co. v. Mahoney, 57 Penn. 187. This case was followed and cited in Bellefontaine v. Snyder, 18 Ohio St. 399 J City of Chicago v. Major, 18 III. 360. OF CONTRIBVTORr NEGLIGENCE. 59 defendant carelessly drove over it with his horses and wagon in broad daylight and killed it, the animal being unable to get out of the way of the wagon — it was held that the misconduct of the plaintiff in leaving the ass in the highway was no answer to the action, for although the ass may have been wrongfully there, still the defend- ant was bound to go along the road with care and at such a pace as would be likely to prevent mischief; "were this not so," as was said, "a man might justify the driving over goods left in 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." Davies v Mann, lo Mee. & W. 549; Mayor of Col- chester V. Brooke, 7 Q. B. 376. So, also, where the drivers of two rival omnibuses were competing for passengers, the one endeavoring to get before the other, and both driving at great speed and trying to avoid a cart which got in their way, and the wheel of the defend- ant's omnibus came in contact with the projecting step of the omnibus on which the plaintiff was riding, and caused it to swing against a lamp-post and the plaintiff was thrown off and injured : it was held, that he was not disentitled to recover damages from the proprietor of the rival omnibus by reason of the misconduct of his own driver. Rigby v. Hewitt, 5 Ex. 240; Greenland y. Chaplin, 5 Ex. 247.^ So, where the plaintiff in a steamboat was injured by the fall of an anchor on it, caused by the collision with the steamboat of the defendant, it is no defense that the anchor may have been improperly stowed in the steam- boat, or that the plaintiff was standing on a part of the deck where he ought not to have been. Greenland v. 1 ITehter v. Hudson Riv. R. R. Co.,. 38 N. Y. z6o. 60 EXISTENCE OF NEGLIGENCE. Chaplain, 5 Ex. 243. See Vennell v. Garner, i Cro. & Mee. 21 ; and The Mayor of Colchester v. Brooke, 7 Q. B. 377, where oysters were placed in a channel of a public navigable river so as to create a public nuisance, yet a person navigating the river was holden not justified negligently or willfully in running his vessel against them, and so destroying them, when he had room to pass without so doing. REAL PEOPERTT. Q\ CHAPTER III. AS TO THE NEGLIGENT USE OF PROPERTY, AND PERSONAL NEGLIGENCE. Sec. I. — The negligent use of real property. " 2. — The negligent management of premises. " 3. — The negligent management of docks and canals, " 4. — The negligent management of public works. " 5. — The negligent keeping of animals. Sec. I . — The negligent use of real property. A MAN must so use his own rights and property as to do no injury to those of his neighbor, for in all civil acts the law does not so much regard the intent of the actor as the loss and damage of the party suffering. Every person who occupies land, who allows wells or mining shafts to remain on his land unguarded and un- protected, is responsible in damages to all persons who sustain injury from falling into them, provided they were lawfully traversing the land on which the shaft or well existed, and fell into it without any negligence or mis- conduct on their part; but if, however, they were at the time trespassers on the land they would not be entitled to maintain the action. Hardcastle v. The South York- shire Railway Co., 4 Hur. & N. 67; 28 L. J., Ex. 139. In this case, Martin, B., thus states the law : " When ah excaV'ation is made adjoining to a public way, so that a person walking on it might by making a false step, or being affected with sudden giddiness, or in the 62 NEGLIGENT USE OF PROPERTY, ETC. I case of a horse or carriage, who might by the sudden starting of a horse be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences. But when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case seems to ^ me to be different. We do not see where the liability is to stop. A man going off a road in a dark night and losing his way may wander to any extent, and if the question be for the jury no one can tell whether he was liable for the consequences of his acts upon his own land or not. We think the proper and true test of legal liability is, whether the excavation be substantially adjoining the way ? And it would be very da^ngerous if it were otherwise ; and if in every case it was to be left as a fact to the jury, whether the excavation was sufficiently near to the highwayto be dangerous. When a man dedicates a way to the public there does not seem any just ground in reason and good sense that he should restrict himself in the use of his land adjoining to any further extent than that he should not make the use of the way dangerous to the persons who are upon it and using it." See Blyth v. Topham, Cro. Jac 158.^ So, where the defendants were owners of waste land which was bounded by two highways, and they worked a quarry in the waste, and the plaintiff not knowing of - the quarry passed over the waste in the dark and fell 'An owner of land made an excavation therein, within a foot or two of a public street, and used no precaution against the danger of falling into it. A person, passing in the night-time, went over the line of the street, fell into the excavation, and was injured. Held, that the owner of the land was not liable to an action for the injury. Howland v. Vincent, 10 Met. 371. REAL PROPERTY. 53 into the quarry, and broke his leg, and then brought an action for the injury ; it was held, that the action could not be maintained, as there was no legal obligation in the defendants to fence the quarry for the benefit of the plaintiff who was a mere trespasser upon the land. Hounsell V. Smith and others, 7 Com. B., N. S. 731 ; 29 L. J., C. P. 203 ; see also Gantret v. Egerton, ^^ L. J., C. P. 191.^ In the case of Corby v. Hill, 4 Com. B., N. S. 556; 27 L. J., C. P 318, there was a road leading to a building along which persons had been accustomed to pass by the leave of the owners, and were likely to con- tinue to pass, and the defendant being about to build, received leave to place building materials there, and in pursuance of that leave he placed a quantity of building materials there^ and in such a way as to be likely to in- jure persons using the road, and he did not give notice to such persons by signal or otherwise. An injury having been caused thereby to the horse of the plaintiff whilst lawfully using the road, it was held that the defendant was liable for it in damages. See also Gal- lagher V. Humphrey, 6 Law Times Rep. 684. Where the appellants were in occupation of the min- erals under a field which was in the occupation of the respondent, and they had sunk a shaft in the field for the purpose of getting the minerals beneath it ; it ap- peared that when they had ceased to work the shaft they covered it over in such a manner as not to afford a proper and effectual protection for horses in the field. The respondent turned out a mare to feed in the field, 'An action will not lie for carelessly leaving maple syrup in one's uninclosed wood, whereby the plaintiff's cow, having strayed there, is killed through drinking it. The reason is, the cow had no right to be there. Bush v. Brainard, i Cowen, 78. 64 NEGLIGENT USE OF PROPERTY, ETC. and she fell down the shaft and was killed without any negligence on the part of the respondent, and it was held, that the appellants were responsible to the respondent for the injury. Cockburn, C. J., in giving his judgment, said, "The question before us is a nice one ; it appears to be novel, and upon which no direct and positive authority can be found. The facts lie within a small compass, but there is some difficulty in deciding upon them. The question is this : whether when the minerals below the surface of the ground have been separated from the ownership and occupation of the surface with a license from the owner to the person to whom the minerals are let, to sink a shaft through the surface, it is incumbent upon the last- mentioned person to fence off the shaft so as to pro- tect the owner of the surface from injury ? There being no statutory enactment upon the subject, no stipulation between the parties, and no evidence of any mining cus- tom, we have to see whether there is any implied con- tract that it should be done by the occupier of the min- erals. . . . What is the law of reason upon the matter ? I think that it is more reasonable that he who does the work which is the cause of danger should avert that danger by all that is reasonably necessary. The owner of the soil does not know when or in what way or to what extent the shaft will be sunk and kept open, and I am disposed to think, and I am ready to act upon my opinion in holding, that the person who sinks the shaft should do what is necessary to render it harmless to the horses and cattle which are likely to feed upon the surface of the ground, and that an obligation arises to that extent." Blackburn, J., also said, " This is not a case in which the respondent is a stranger or a person whose horse had no right to be in the field; if it were REAL PROPERTY. (55 SO, it is clear that there would be no obligation on the appellants to prevent wrong happening by means of the shaft being left open. In Blyth v. 'Topham, Cro. Jac. 158, it was argued 'that when the mare was straying,' and the plaintiff ' shows not any right why his mare should be in the said common, the digging of the pit is lawful as against him, and although his mare fell therein, he hath not any remedy, for it is damnum absque injuria. Wherefore an action lies not, and of that opinion were the whole court.' . . . The general rule of law is, that he who has property should so use it as not to injure the property of his neighbor ; and it seems to me that a person who opens a shaft, and thus makes an alteration in the normal state of things, should take proper steps to fence it in and protect it, so as to pre- vent injury happening to him who previously had a right to the use of the surface of the soil." Groucott and another, appellants, Williams, respondent, 4 Best & S. 149; 3i L. J., Q. B. 237. In Binks v. The South Yorkshire Railway and River Dun Co., 3 Best & S. 244 ; 32 L. J., Q. B. 26, it appeared that the defendants were possessed of a canal and the land between it and a sluice; an ancient foot-path passed through the land close to the sluice ; there was a towing- path nine feet wide by the side of the canal, and an in- tervening space of twelve feet of grass between the towing-path and the foot-path. By the permission of the defendants the intervening space had been lately used for carting, and ruts having been caused, the whole space between the canal and the sluice had been covered with cinders, and thus all distinction between the path and the rest of the land had been obliterated. A person using the path at night missed his way, and fell into the canal and was drowned ; and it was held, that the canal 5 ' 66 NEGLIGENT USE OF PROPERTY, ETC. was not so near the foot-path as to be adjoining to it, so as to throw upon the defendants the duty of fencing the canal off, and that the other facts did not render the de- fendants liable for the accident. Blackburn, J., in giving his judgment, said, " In Hardcastle v. The South Torkshire Railway Co., i Hur. & N. 67 ; 28 L. J., Ex. 139, the court said, ' The proper and true test of legal liability is, whether the excavation be substantially ad- joining the way, and it would be very dangerous if it were otherwise — if in every case it was to be left as a fact to the jury whether the excavations were sufficiently near to the highway to be dangerous.' That decision binds us (I do not say it is wrong, but it is sufficient that it binds us), and therefore, in the present case, it is not a question for the jury, but a question of law, whether the canal substantially ad- joins the foot-path ? and I do not think it possible to say that it is adjoining when there are intervening nine feet of towing-path and grass sufficient to make a real distinction between the towing-path and foot-path. It is true this distinction has been done away with by the tenants of the land, but even if it had been done by the defendants that would not be sufficient to make them liable: concede that the distinction between the foot- path and the intervening space and the towing-path were not noticeable at night, that is not sufficient to make the canal 'adjoining' the right of way. Again, 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 ; but then that must be proved by distinct evidence, and the mere fact of spreading cinders over the whole space can not be said to be such an inducement." Mellor, J., also, said, " By going off REAL PROPERTY. 67 the line of foot-path the passenger commits a trespass, though possibly it would not be so here; but even if he were not a trespasser, and if the distinction of the foot- path had been obliterated by the carting and consequent repair, still he must use the permission of the defend- ants subject to the dangers ; and there was, therefore, in my opinion, no evidence of liability on the part of the defendants to go to the jury." See also Barnes v. Wood, 9 Com. B. 392 ; 19 L. J., C. ^. 195. In Lee v. Riley, 18 Com. B, N. S. 722; 34 L. J., C. P. 212, it appeared that through the defect of a gate, which the defendant was bound to repair, his horse got out of his farm into an occupation road, and strayed into the plaintiiF's field, where it kicked the plaintiff's horse ; and it was held that the defendant was liable for the trespass by his horse, and that it was not necessary, for the maintenance of the action, to prove that the defendant's horse was vicious, and that the defendant was aware of it ; also, that the damage the plaintiff had sustained by the injury to his horse was not too remote, but was sufficiently the consequence of the defendant's neglect, to be recoverable. In his judgment, Erie, C. J., said: " The counsel for the defendant has contended ,that the defendant can not be made liable for this, un- less the defendant's mare was a vicious horse, and the defendant knew that it was so , and he has referred us to the case of Cox v. Burbridge, 32 L. J., C. P. 89, to show that where damage is done by a tame animal the owner is not liable, unless the animal has a ferocity, which is known to its keeper. I am of opinion, how- ever, that it was not the duty of the county court judge to lay that down to the jury in this case, because the point which has been made by Mr. Maule would not avail him here, as this is an action for a trespass, in re- 68 NEGLIGENT VSE OF PROPERTY, ETC. spect of which the defendant is clearly liable to some damage, and the only question is, as to the remoteness of the damage. Therefore, I think it was not necessary for the learned judge to have left the question to the jury, whether the defendant's horse was ferocious, and whether the defendant knew of that vice ? because the nature of the injury was not dependent on the vice of the horse, or the defendant's knowledge of such vice, but whether such animal strayed through the defective state of the defendant's fences into the plaintiff's field, and there did the damage complained of"^ As regards the right of support of land and build- ings — these stand upon different footings as to the mode of acquiring them ; the former being prima facie a right ot property analogous to a right to the flow of a natural river, or of air, Rowbotham v. Wilson, 6 Ell. & Bla. laj ; 8 Ho. of L. 348 (though there may be cases in which it could be sustained on another ground — see 'The Caledonian Railway Co. v. Sprott, 1 Macq. H. L. Cas. 449) — whilst the latter, that is the right to the support of houses, must be founded upon prescription or grant, express or implied, but the character of the right, when accrued, is in each case the same. Per Willes, J., Bonomiv. Backhouse, 28 L J., Q. B. 378 (Ex. Ch.) With reference to the support to land, it has been well said : " If every proprietor of land was at liberty to dig and mine at pleasure on his own soil, without con- sidering what effect such excavations must produce upon the land of his neighbors, it is obvious that the with- drawal of the natural support would, in many cases, cause the falling in of the land adjoining. As far as the mere support to the soil is concerned, such support ■ See also Decker v. Gammon, 44 Maine, 322. REAL PROPERTY. 69 must have been afforded as long as the land itself has been in existence ; and in all those cases, at least, in which the owner of the land has not by buildings or otherwise increased the lateral pressure upon the adjoin- ing soil, he has a right to the support of it as an or- dinary right of property, not as an easement, as being necessarily and naturally attached to the soil. The negation of this principle would be incompatible with the very security for property, as it is obvious, that if the neighboring owners might excavate their soil on every s'ide up to the boundary line to an indefinite depth, land thus deprived of support on all sides could not stand by its own coherence alone. Gale on Ease- ments, 33 s. As regards bouses — the right to support depends, in a great measure, upon whether or not they are ancient. But whether a house be ancient or not, if the owner of a house, which is being pulled down, conducts the work in so irregular, negligent, and improper a manner, that injury is produced thereby to the adjoining house, he will be liable to make compensation in damages for the consequences of his want if caution. Walters v. Pfeil, Moo. & Malk. 362 ; Dodd v. Holmey i Ad. & Ell. 40J.1 (See this subject fully considered in Gale on Easements ) 'If the owner of land make an excavation in it so near to the ad- joining land of another that the soil break away, he is responsible for the injury to the land, but not for the buildings thereon. Fol/y v. JVyeth, 2 Allen, 131 ; Panton v. Holland, 17 Johns. 92; Thurston v. Hancock, 12 Mass. 220. 70 NEGLIGENT USE OF PROPERTY, ETC. Sec. 2. — On the negligent management of premises. It is the duty of every one who has premises to which others may lawfully resort, to exercise all reason- able care against the occurrence of accidents. A dis- tinction, however, exists between the case of those who resort to premises in the course of business upon the invitation, expressed or implied, of the owner, and those who go there merely as visitors or bare licensees, since it is only in the former case that liability for neg- ligence will attach.^ In Indermaur v. Dames, L, R., i C. P. 274; 35 L. J., C. P. 185 ; affirmed in the Ex. Ch., L. R., 2 C. P. 311 ; 36 L. J., C. P. 181, it appeared that the defend- ant agreed with one D., for the setting up of some gas regulators in his sugar refinery The contract stipu- lated that they were not to remain unless a certain saving was effected, and that this was to be tested. In order to do this it was necessary to examine the burners, and D.'s manager, and the plaintiff, as his servant, went to the sugar refinery for that purpose. In the refinery there was a shaft for raising and lowering sugar, which was necessary, usual, and proper for the business. This shaft was unfenced, though, when out of use, it might have been fenced round. The plaintiff was warned that the place was dangerous and lights not allowed, and that he should keep by a man who would have a light; but having left a tool in a part of the refinery where he had been, he went back for it, and in returning to the man - ^ Passenger with a free pass indorsed, that the passenger should take upon himself the risks of the journey, can not recover for an injury caused by the negligence of the carrier's servants. Kinney v. Central R.R.. 34N. J. 513. MANAGEMENT OF PREMISES. 7I with the light fell through the shaft without any fault on his own part. Upon these facts, it was held, that where a person resorts to a building in the course of business, on the express or implied invitation of the occupier, such person using reasonable care, is entitled to expect the occupier to use reasonable care to prevent damage from unusual danger, which he knows or ought to know existed; that there was evidence that the plaint- iff was on the defendant's premises on business by his tacit invitation, and that the shaft was an unusual danger known to the defendant, and th^t damage ac- crued to the plaintiiF from the defendant and his serv- ants not using sufficient means to warn him of it. In the course of delivering the considered judgment of the court, Willes, J., made the following observations : " The authorities respecting guests and other bare li- censees, 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 resort- ing thereto in the course of business upon his invita- tion, 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 act- ually 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." The Lancaster Canal Co. v. Parnaby, 11 Ad. & Ell. 223; Chapman v. Rothwell, Ell., Bla. & Ell. 168, where Southcote V. Stanley, i Hur. & N. 247 ; 25 L, J., Ex. 339, was cited, and the Lord Chief Justice, then Mr 72 NEGLIGENT DSE OF PROPERTY, ETC. Justice Erie, said, "The distinction is between the case of a visitor — as the plaintiff was in Scutbcote v. Stanley — who must take care of himself, and a customer, who as one of the public is invited for the purposes of busi- ness carried on by the defendant. This protection does not depend on 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 invita- tion 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 com- plain 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 pro- tection during this accessory visit, though it might not be for the shopkeeper's benefit, as during the principal he 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 serv- ants, 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 in- vitation, 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 reason- able care has been taken by notice, lighting, guarding, or otherwise, and whether there was contributory negli- MANAGEMENT OF PREMISES. 73 gence in the sufferer must be determined by a jury as matter of fact." So also in Chapman v. Rothwell, i Ell., Bla. & Ell. 168 ; 27 L. J., Q. B, 315, it appeared that the defend- ant was in the occupation of an office and passage lead- ing thereto from the street, used by him for the recepr cion of customers and others on business ; that the passage was the ordinary means of ingress and egress between the office and street; that the defendant negli- gently permitted a trap-door in the passage to remain open without being properly guarded and lighted, and that the deceased, having been to the office as a cus- tomer, was lawfully passing out by the passage, and through the said negligence of the defendant fell through the hole of the trap-door and was killed. Upon de- murrer, i,t was held, that a good cause of action was dis- closed on the facts stated. See also Shoebottom v. Egerton, 18 Law Times Rep. 364, 889; Pickard v Smith, ante. In the case of a railway, where by arrangement be- tween two companies whose rails are in connection, each company was to work both the lines, and the fares were to be divided between them ; it appeared that the plaint- ifFwishing to go from London to Milford on the South Wales line took a railway ticket at the Paddington sta- tion of the Great "Western Railway Company, paid his fare, and became a passenger to be conveyed by that company to Milford. After the train had passed from the Great Western Railway on to the South Wales Rail- way, it came (without any negligence on the part of those who managed the train) in collision with a locomotive engine left on the line by the negligence of some servants of the South Wales Company, and the plaintiff was in- jured. Upon this it was held, that the Great Western Company were liable to the plaintiff for the injury ; for 74 NEGLIGENT USE OF PROPERTY, ETC. a railway company impliedly contracts with a passenger to use due and reasonable care in keeping its line in a proper state for traffic, and by the arrangement between the companies the South Wales line became the line of the Great Western Company in respect of their obliga- tion to passengers. 'The Great Western Railway Co. v. Blake, 7 Hur. & N. 987 ; Blake v. The Great Western Railway Co., 31 L. J., Ex. 346, S. C. ^ A railway company are under an obligation to take every reasonable care to prevent the safety of passengers being endangered, and to prevent cattle from straying from the adjoining land, and protecting the cattle of the owners or occupiers from straying over the line, when from the nature of things they have notice that cattle might stray over it. Buxton v. The Northeastern Rail- way Co., L. R., 3 Q. B. 549 ; 37 L. J., Q. B. 258.^ In John V. Bacon, L. R., 5 C. P. 437, A. agreed to carry B. from M. to L. : the mode of transit provided was, that B. should come to a hulk lying in the harbor at M. and wait till a steamer came and took him to L. On the hulk close to a ladder down which B. had to pass to reach the steamer was a large hatchway, which was negligently left unguarded and improperly lighted, and B, fell through it and was injured. The hulk belonged 1 This seems to be the rule in New York. See Buffit v. Troy and Boston R. R. Co., 36 Barb. 420. ^The subject of railroad fences is regulated by statute in most of the States of the Union ; and in those where no such statute exists, and where by the common law of the State cattle may run at large, the railroad company is only liable for the injuries to cattle when it has notice of their presence, and fails in the necessary caution and care to avoid the accident. See Kerwhackery. Cleveland, C.andC. R. R. Co., 3 Ohio St. 172; Cleveland, C. and C. R. R. Co. v. Elliot, 4 Ohio St. 474; Central Ohio R. R. Co. v. Lawrence, 13 Ohio St. 66; Alger y. Mississippi and R. Co., 10 Iowa, 268. MANAGEMENT OF PREMISES. 75 to a third party, and A. had only acquired a right to use it for the purpose of embarking passengers on his steamer. In an action by B. against A. for the injury he sustained, it was held that A. was answerable for all injury occurring through the means of the transit being improper, whether it arose from the negligence of his own servants or of other parties who helped to provide the means of transit, and that A. having invited B. to the hulk was bound to protect him from concealed dangers, and was liable for injury he sustained through the condition of the hatchway, even though it was under the care of others and not his own servants. In his judgment, Bovill, C. J., said: "There is abundant evidence that the injury occurred from negligence in leaving the hatchway open and unprotected, and the question is, whether the defendant is responsible for it ? He was a carrier of passengers for hire from Milford to Liverpool, and the mode in which the transit was per- formed was by a small steamer conveying the passengers from the shore to the hulk ; there they took their tick- ets at a bo3? on the upper deck, and they remained often a considerable time on board the hulk till a large steamer came to convey them to Liverpool. They then descended by a ladder to the main deck of the hulk in order to embark on board the steamer. The defend- ant and his co-owners had taken means to procure the use of the hulk for the purpose of embarking their passengers, and though they had not the exclusive use of it, they were entitled under their agreement with the owners to have it arranged to their satisfaction for that purpose. The plaintiff was a passenger and had taken his ticket on the hulk, and on the steamer arriving, there was, it appears to me, a distinct invitation to him to descend the ladder; the ladder was dangerous by 76 NEQLIOENT USE OF PROPERTY, ETC. reason of a hole at its foot, which was not in any way protected, and the plaintiff, as the jury have found, without negligence fell through it and was injured. The case seems to me to fall within the principle of Pickard V. Smith, lo Com. B., N. S. 470. The plaintiff was invited into a trap of which the defendant was aware, and which was in a place of which the defendant had the use, if not the sole control ; under these circumstances the defendant was, I think, responsible, independently of any contract to carry the plaintiff safely. B-ut fur- ther, I think there was by the issuing of the ticket a contract with the plaintiff to carry him safely to Liver- pool ; and that, therefore, independently of the occupa- tion of the hulk, the defendant was responsible for an injury arising from want of due care." See Smith v. The London and St. Katherine Dock Co., L. R., 3 C. P 326 ; 37 L. J., C. P. 11-], post. The corporation of a town caused a wash-house to be erected, with a wringing-machine, under the Baths ana Wash-houses Act, 9 and 10 Vict., c. 74, which vests such houses, etc., in the corporation, the act-ual manage- ment being in the council, the members of which are not to be personally liable. The wringing-machine was originally intended not to be worked by hand, and being worked by steam, a projecting handle was needlessly retained which went round with great rapidity, and had no protection. Those who used the wash-house paid for the use of it; and the female plaintiff using the ma- chine, without negligence on her part, was caught by the handle when thus revolving and was hurt. Upon an action brought by her against the corporation, it was held that they were liable. Cowley and Wife v. The Mayor, etc., of Sunderland, 6 Hur. & N. 565; 30 L. J., Ex. 127. In the course of delivering the judgment of the MA NA GEMENT OP PREMISES. 7 7 court, Wilde, B., said : " It was there argued, that as the plaintiff was a volunteer and chose to use the ma- chine, such as it was, she could not recover; but we think this argument does not avail the defendants. The statute was passed for the benefit of the poorer and more ignorant classes of the population. The corporation chose to avail themselves of these powers to erect these wash-houses. In discharge of the statutory duty thus undertaken by them, we think they were bound to exer- cise ordinary care and diligence, and provide machines reasonably safe for use. It is clear, from the evidence and the finding of the jury, that the projecting rod which did the mischief was unnecessarily, carelessly, and negligently allowed by the defendants to remain after all use and purpose in it had ceased. It is also clear that this danger was one which the plaintiff might reasonably fail to perceive or appreciate; and the jury have in sub- stance found that neither in the fact of using the ma- chine at all, nor in the particular mode of using it by the plaintiff, was there any negligence. The accident was caused by the immediate negligence of the defend- ants, and on an occasion when the plaintiff was in no way to blame." If a man overloads the floor of a warehouse with mer- chandize so that the floor breaks and crushes the goods of another man in the floor beneath, the latter is entitled to bring an action for damages against him. If the floor is ruinous the occupier must take good care that he does not put upon such ruinous floor more than it can well bear; and if it will not bear anything, he ought not to put anything upon it to the prejudice of another. Where the defendant, who was the lessee and occupier of a warehouse, underlet a cellar beneath the warehouse to the plaintiff, and the defendant so overloaded the 78 NEGLIGENT USE OF PROPERTT, ETC. floor of the warehouse with merchandise that the floor gave way and crushed the plaintiflfs wine in the cellar : it was held, that the defendant was responsible for the injury, and that it was no answer to the action to say that the floor was ruinous and that the defendant was not bound to repair it; "for he who takes a ruinous house ought to mind well what weight he puts into it at his peril, that it be not so much that another shall take any damage by it. But if the floor had fallen of itself without any weight put upon it, or by the default only of the posts in the cellar which support it, with which the defendant had nothing to do, there the defendant shall be excused." Edwards v. Halinder, Poph. 46. Where, however, the party injured has come upon the premises as the guest or mere licensee of the defend- ant, no action can be maintained unless the accident has been occasioned by the gross and culpable negligence of the defendant himself. Thus, in Southcote v. Stanley, i Hur. & N. 247 ; 25 L. J., Ex. 339, the declaration alleged that the plaintiff was lawfully in the defendant's house as a visitor by his invitation, and that for the purpose of leaving the house the plaintiff, with the de- fendant's permission and knowledge, opened a glass door of the defendant's, which it was necessary to open, and that by the carelessness, negligence, and default of the defendant, the door was in an insecure and danger- ous condition and unfit to be opened, by reason whereof, and of the carelessness, negligence, default, and improper conduct of the defendant, a piece of glass fell from the door upon the plaintiff and injured him. Upon a de- murrer to the declaration it was held, that it disclosed no cause of action. In giving his judgment, Bramwell, B., says, "I agree with Mr. Gray that a person lawfully in a house has a right to expect that there is no pitfall, as MANAGEMENT OF PREMISES. 79 it were, in his way. If a man says to another, ' Come through my garden to supper,' and there is a steel-trap in the path, which causes personal injury, I am inclined to think that an action would lie, because the leading of another into danger would be an act of commission. The present case is not even so strong as the negligence of a servant in permitting a guest to sleep in a damp bed, and that would be merely an act of omission. The declaration is certainly drawn in a way to create a diffi- culty. It alleges the act to have been caused by the 'carelessness, negligence, default, and improper conduct of the defendant.' That is only saying, ' If you, the defendant, had looked at the door you would have found it to be in an insecure state,' and the defendant is not liable for that act of omission. The only difficulty I felt was as to the allegation of ' improper conduct,' but, although obscure, I think it does not amount to any- thing more, and that the declaration does not disclose any cause of action."^ In £okh V. Smiik, 7 Hur. & N. 736 ; 31 L. J., Ex. 201, the workmen employed in a goverment dockyard were permitted by the government to cross certain land within the dockyard premises to go to the water-closets erected for their accommodation. A government con- tractor, by permission of the government, had erected machinery in this yard ; a revolving shaft, a portion of this machinery, was so placed as to cross the shortest and most convenient way to these water-closets. The shaft was partially covered, but not concealed, by planks, and was found by the jury to have been "in- sufficiently covered." There were other, though not shorter or more convenient, ways to these water closets. 'But see Swe'eny v. 0/J Colony R. R. Co., 10 Allen, 368. 80 NEGLIGENT USE OF PROPERTY, ETC. The plaintiff, who was a workman employed in the dockyard, but not by the contractor who had erected the machinery, in going to the water-closet accidentally fell near the shaft, which caught his arm and severely injured him In an action against the contractor to recover damages for the injury, it was held, that the plaintifFs right to cross the yard was only the right not to be treated as a trespasser for so doing, and that the defendant was under no obligation to fence the ma- chinery at all, and therefore not liable for insufficiently fencing it, and therefore that the action was not main- tainable. The plaintiff, who was a carman, having been sent by his employer to the defendant for some goods, was di- rected by their servant to go to the counting-house. In proceeding along a dark passage of the defendants, in the direction pointed out, the plaintiff fell down a stair- case, and was injured. It was held, that the defend- ants were not guilty of any negligence, for if the passage was so dark, that the plaintiff could not see his way, he ought not to have proceeded ; and if, on the other hand, there-was sufficient light, he ought to have avoided the danger. In his judgment. Pollock, C. B., said: "The learned judge, my brother Bramwell, directed a non- suit upon this sort of alternative : if it was so dark that he could not see, he ought not to have proceeded with- out a light ; if it was sufficiently light that he could see, he might have avoided the staircase, which is a v^ry different thing from a hole, or a trap-door, down which a man may fall. My brother Bramwell directed a nonsuit, and I think the nonsuit was perfectly right. I am not aware what question could have been left to the jury. It certainly was not the duty of the owners of the premises to have the passage lighted. It is, generally MANAGEMENT OF DOCKS AND CANALS. 81 speaking, the duty of every person to take care of his own safety, so as not to go along a dark passage without the assistance of some light to tell him where he is going, and what the danger is that he is to expect. There was no contract, and no public or private duty on the part of the owners of the premises, that they should be in any other or different condition to that in which they were. . It, therefore, seems to us that the nonsuit was perfectly correct." Wilkinson v. Fairrie, i Hur. & C. 633 ; 32 L. J., Ex. 73.^ (As regards the liability for accidents to servants and workmen, set posi.) Sec. 3 — Of the negligent management of docks and canals. The proprietors of docks and canals, who keep them open for the public, are bound to take reasonable care that parties who use them may do so without danger to their lives and property;^ and trustees, commissioners 'The plaintiff, while passing along a highway, was injured by a mass of ice and snow falling upon her from the roof of defendants' build- ing. Held, the defendants were liable, although the building was oc- cupied by tenants who had covenanted to keep the premises in repair, as it did not appear that the roof was under their cdntrol. Shipley v. Fifty Associates, loi Mass. 251. 'In Wendell \. Baxter, 12 Gray, 494, the defendants owned a wharf, and let part of it to a steamboat company that transported the mail ; and the plaintiff was employed by the latter to take the mail-bags from the boat and convey them to the post-office, and while backing his horse and wagon upon the wharf for that purpose, the horse's feet broke through the surface, and suffered injury. Held, the plaintiff could recover. " The plaintiff's right of action arises from the duty which the law imposed on the defendants to keep their wharf safe, so long as they should permit it to be open and used, and not from any contract between them and him." Where the corporation had transferred by lease to defendant, the 6 82 NEGLIOENTUSE OF PR OPERTV, ETC. and other public bodies acting for public purposes, witliout salary or reward, are as responsible in their corporate capacity as private individuals. After much doubt, and many decisions of a conflicting character, the law was finally settled by the House of Lords in 'The Mersey Docks and Harbor Board, appellants, v. Gibbs and others, respondents, and The same, appellants, v. Penhallow and others, respondents, L. R., i Ho. of L, 93 ; 35 L. J., Ex. 225; followed by Coe v. Wise, L. R., 1 Q. B. 71 1 ; 37 L. J., Q. B. 262, Ex, CL, where it was held, that trustees appointed by statute for public purposes with power to levy tolls, though not deriving any personal benefit, are liable in their corporate capac- ity for damages sustained by reason of the default of their servants or agents, to the same extent as absolute owners levying tolls for their own profit, although there is no improper conduct on the part of such trustees. See also Gibbs v. The Trustees of the Liver-pool Docks, 8 Hur. & N. 164; 27 L. J., Ex. 321 ; also, Manley v. St. Helens Canal and Railway Co., 27 L. J., Ex. 159. But it would seem that, where the injury arises from an act of negligence not immediately referable to the conduct of such a body or their agents, though they had powers to compel the observance of care, no action can be maintained against them. Thus in Walker v. Goe and another, 4 Hur. & N. 350 ; 28 L. J., Ex. (Ex. Ch.) 184, it appeared that by the stat- ute 9 Geo. 4, c. XXX. (local), commissioners of an in- land navigation were required to, and in pursuance of right of the city to collect wharfage, for the period of five years, the lessee to keep the wharf in repair during the time: Held^ that defendant was liable for all damage resulting, etc., from a neglect to keep such wharf in repair. Radwivf v. Briggs, 37 N. Y. 256 ; Mayor of Albany V. Coneff", z Cow. 165. MANAGEMENT OF DOCKS AND CANALS. 83 the act did, execute a lease of the navigation and tolls, for a term of years. The statute enacted, " That, in case the lessee should at any time permit the said navi- gation or the works thereof to be out of repair, the com- missioners were thereby authorized and required to give notice thereof to such lessee, and in such notice to specify the particular repairs which ought to be done, and the commissioners might by such notice require that such repairs should be commenced and finished within reasonable periods, to be named by the commis- sioners ; and in case the lessee should neglect, then it should be lawful for the commissioners, and they were thereby authorized, to take possession of the tolls and to cause such repairs to be done, and to pay the expenses out of tolls." A lock forming part of the naviga- tion fell in for want of repairs, by reason of which the navigation was stopped, and the plaintiff, the master of a barge, was necessarily detained with his barge a num- ber of days with a load of wheat, which was ready to be conveyed through the lock. The fact that the lock had been for some time out of repair was known to the com- missioners, but they had given no notice to the lessee, although sufficient time had elapsed for giving such notice, and for the repairs being done before the lock fell in. The plaintiff claimed as damages a uniform sum per day during the time he was detained, calculated according to the average weekly earnings of his vessel. It was, however, held, that even assuming that there was a duty in the commissioners to give notice of re- pairs required to be done, for neglect of which an action would lie at the suit of a party injured, still the fore- going facts did not disclose any damage flowing from the breach of that duty, so as to give the plaintiff a right of action against the commissioners ; for the falling in 84 NEGLIGENT USE OF PROPERTY, ETC. of the lock was not the natural, proximate, or necessary consequence of the omission of the commissioners to give such notice. Where a dock company undertake to provide access to ships in their dock for persons having business there, they are bound to see that such access is reasomably secure. In SmiiA v. The London and St. Katherine Docks Co., L. R., 3 C. P. 326 ; 37 L, J., C. P. 217, it ap- peared that the plalntiiF, on the invitation of an officer of a vessel lying in docks of which the defendants were the proprietors, went on board such vessel on business connected therewith, and on his return back he stepped on a gangway which formed the communication between the vessel and the shore, when it tilted over and threw him into the water. The gangway was the means of access to the vessel which the defendants had provided for the purpose ; it was their property, and at the time of the accident was about to be rearranged by their serv- ants to make it secure, it having been rendered unsafe by reason of their having just previously shifted the position of a vessel on which it rested. The defend- ants' servants were aware of the gangway being danger- ous, but the plaintiff was not. Upon this it was held, that there was a duty on the part of the defendants to the plaintiff to have made the gangway safe, or to have given him notice of the danger ; and that for the breach of that duty the plaintiff had a right of action against the defendants. See also Indermaur v. Dames, ante, p. 70. MANAGEMENT OF PUBLIC WORKS. 85 Sec. 4. — On the negligent management, etc., of public works. ^Public bodies, though acting under statutory author- ity, will be liable in damages for injuries occasioned by the negligent manner in which they execute their duties. " Powers given by statute are not to be used to the peril of the lives or limbs of the Queen's subjects. They are to be exercised reasonably and with due care, so as not by negligence to cause danger to others." Per Watson, B., in Manley v. St. Helen's Canal and Railway Co., 1 Hur. & N. 840. See, upon this subject gener- ally, 'The Mersey Docks and Harbor Road v. Gibbs, L. R., I Ho. of L. 93 ; 35 L. J., Ex. 225 ; Coe v. JVise, L. R., I Q. B. 711 ; 37 L. J., Q. B. 262 ; and Manley v. St. Helen s Canal Co., supra. In Whitehouse V. Fellows, 10 Com. B., N. S. 765; 30 L. J., C. P. 305, it appeared that the trustees of a turnpike road converted an open ditch which used to carry off the water from the road into a covered drain, placing catch- pits with gratings thereon, to enable the water to enter the drain. Owing to the insufficiency of such gratings and catch-pits, the water in very wet seasons instead of ^The duties and liabilities of municipal corporations, street commis- sioners, boards of public works, county commissioners, supervisors, and other public officers are defined in the statutes which create them ; and while liable like an individual for negligence and tort, the extent of their liability must be sought for in the terms of the statute which clolhed them with public authority. , See Dayton v. Pease, 4 Ohio St. 80; Pecli V. Batavia, 32 Barb, 634; Robbins v. Chicago City, 4. Wall. 670. In Shearman and Redfield on Negligence, this subject is treated quite fully, and a very large collection of cases is there presented in the re- spective chapters of Municipal Corporations, Highways, and Public Officers. 86 NEGLIGENT USE OF PROPERTY, ETC. running down the ditch, as it formerly did before the alterations by the trustees, overflowed the road, and made its way into the adjoining land, and injured the colliery of the plaintiff. Upon this it was held, that the trustees were liable for such injury, if they were guilty of negligence in respect of such gratings and catch-pits. So, an action will lie against a local board of health, under ii and 12 Vict., c. 6^, as a body, for negligently carrying out works within their powers, so as to cause injury to any person : — for so negligently and improperly constructing a sewer as to cause r nuis- ance by its discharge.^ Southhampton Bridge Co, v. Local Board of Health of Southhampton 8 Ell. & Bla. 801 : 28 L. J., Q. B. 41 ; also, in Ruckv. Williams, 3 Hur. & N. 308 ; 27 L. J., Ex. 357, where commissioners, acting under statutable powers, had ordered new sewers to be constructed under a contract and plans which did no^ provide for a " penstock," or flap necessary to prevent the plaintiff's premises from being flooded, and the con- sequence was that the premises were flooded with sewer- age — it was held, that the commissioners were liable to be sued for negligence. See also JVard v. Lee, 26 L. J , Q. B. 142. So, where the defendants, a company without special powers for the purpose, directed W. to open trenches in the streets of a town, and the servants of W., whilst engaged in the task, left a heap of stones 'A municipal corporation in the dischr.rge of its proper powers and functions, caused ditches and water-courses to be cut in such a man- ner as to overflow and wash away the plaintiiF's land. Held, that the corporation was liable like an individual for any consequential damage although the act was not beyond its lawful powers. Rhodes v. Ckve- land, 10 Ohio, 159 ; Bailey v. Mayor et al., 3 Hill, 531, and 2 Denio, 433; Western Savings Fund Society v. Phil., 31 Penn St. 175; Fen- nimore v. New Orleans, 20 La. An. 1 24. City held liable for defective sidewalks and gaslights. 42 111. 169, 503. MANAGEMENT OF PUBLIC WORKS. 87 on the footway over which the plaintiff fell, the defend- ants were held liable, as what they had ordered to be done was a public nuisance. Ellis v. The Sheffield Gas Consumers Co., i Ell & Bla. 757 ; 23 L. J., Q. B. 42. So, also, where the defendants being authorized by act of parliament to make an opening bridge over a navig- able river, and they employed a contractor to construct it — it was held, that they were liable for damage caused by the defect of the bridge. Hole v. The Sittingbourne Railway Co., 6 Hur. & N. 488 ; 30 L. J., Ex. 81. In the case of Hartnallv. The Ryde Commissioners, 22 L. J., Q. B. 3, the declaration alleged, fihat the defendants were the commissioners for the time being duly elected and acting under the Ryde Improvement Act, 1854, and that the defendants wrongfully permitted a certain footway, being part of a highway in the town of Ryde, and being within the limits of the act, and under the de- fendants' management and control, to be and continue and the same was out of repair and in a state and condi- tion dangerous for foot passengers, and a certain rounded and paving or curbstone was then negligently and wrong- fully permitted by the defendants to be at the end of the footway, so that the footway terminated abruptly and dangerously for the foot passengers, and the same was left by the defendants without any sufficient light to warn persons, and the plaintiff after dark slipped and fell from the curbstone and was injured, etc. To this there was a demurrer, on the grounds that the defend- ants were not by law bound to repair, and that it was not averred that they had funds wherewith to do re- pairs. It appeared that the Towns Improvement Clauses Act, 1847, was incorporated with the Ryde local act, and that by sections 47 and 48 of the first- named act, the commissioners have the management of 88 NEGLIGENT USE OF PROPERTY, ETC. the Streets vested in them, and are constituted surveyors of the highways ; and by section 49, the commissioners are to be deemed guilty of a misdemeanor for refusing or neglecting to repair any public highway within the limits of the special act, and are to be liable to be in- dicted for such misdemeanor in the same manner as the inhabitants thereof, or of any parish, township, or other district therein, were liable before the passing of the special act. The court upon this state of facts gave judgment in favor of the plaintiff, holding that the de- fendants were liable, and that it was not necessary to aver that they had funds whereout to pay damages. In the subsequent case against the same defendants, of Ohrby v. The Ryde Commissioners, 5 Best & S. 743 ; 23 L. J., Q. B. 2^6, the accident arose in consequence of the defendants having altered a certain footway without suf- ficient protection, whereby the plaintiff suffered damage, and the question turned upon the 51st and 52d sec- tions of the before-mentioned act; the 51st section giving the commissioners power to alter any streets, etc., as they may think fit, and the 5 2d section direct- ing that they shall place such fences, etc., on the side of the footways of the streets as may be needed for the protection of passengers. Upon this, it was held, that the commissioners were not (as was contended) invested with an absolute discretion, as to whether they would place fences by the footway for the protection of foot passengers, but that it was their duty to do so. It must not, however, be assumed from the last two cases that public bodies who have powers conferred upon them for the management of highways will neces- sarily be legally liable for the consequences arising from their permitting such to be in an insecure or dangerous condition. Much will depend upon whether or not MANAGEMENT OF PUBLIC WORKS. 89 such highways have always been in such condition, and whether or not their duties with respect to such are im- perative or discretionary.^ In fVilson v. 'The Mayor and Corporation of Halifax, L. R., 3 Ex. 114; 37 L. J., Ex. 44, it was held, that the 68th section of the Public Health Act, 1848, which vests the management in the local board for the district, and enacts, that "they shall from time to time cause the streets to be repaired, and may from time to time cause the soil thereof to be raised or lowered, and place and keep in repair fences and posts for the safety of foot passengers," does not make it obligatory on the board to place posts or rails by the side of ancient foot-paths where none have ex- isted before. In giving judgment, Kelly, C. B., said: " The cause of action alleged in the second count is that the defendants had wrongfully neglected to fence off for protection of passengers the footway near the goit, and that thereby the deceased met his death. The 68th section vests all the streets being highways in the local board, who are in this case the defendants, and enacts, that they shall from time to time cause the same to be repaired, and that they may from time to time cause the soil of the streets to be raised, etc., and place and keep in repair fences and posts for the safety of foot passengers. It was contended for the plaintiff that this section made it obligatory upon the defendants to place fences and posts along the footway, and that part of this section may be read as a parenthesis. But we think, whether these words be so read or not, that upon the true construction of the whole enactment a discre- tion was necessarily vested in the board as to what fences ^See Joliet v. Verley, 35 111. 58; Wilson v. Mayor, etc., i Denio, 595- 90 NEGLIGENT USE OF PROPERTY, ETC. and posts should be placed or erected in ancient foot- paths where none had ever existed before. The sup- posed absolute duty of the defendants, upon which the second count is framed, therefore, does not exist, and this cause of action also fails." In the subsequent case of Gibson v. 'The Mayor, etc., 'of Preston, L. R., 5 Q. B. 218; 39 L. J., Q. B. 131, the question was, whether or not an action would lie against a local board, under the Public Health Act, 1848, for damages occasioned by their negligence in not repairing a highway. The declaration, after alleging that the defendants were the local board, and that there was a public footway which, under the above statute, it was their duty to repair, alleged that the said foot-path was, for want of needful repair, ruinous, etc., and that the defendants wrong- fully suffered the same to be ruinous and dangerous, by reason whereof the plaintiff, whilst lawfully using and passing along the said public footway, was thrown down and broke his leg. To this there was a demurrer. By the 68th section of the Public Health Act, 1848, it is enacted, that all streets being, or which at any time become, highways within any district shall vest in and be under the management and control of the local board of health. And by 15 and 16 Vict., c. 42, s. 13, it is enacted, that the term "highway" in the above- cited section shall mean any highway repairable by the inhabitants at large. In the course of delivering the considered judgment of the court, Hannen, J., said: "On consideration of that statute in connection with the previous state of the law, with reference to which it was passed, we are of opinion that the plaintiff is not entitled to recover. At common law no action cduld be maintained by one of the public in respect of injury sustained through a high- MANAGEMENT OF PUBLIC WORKS. 91 way being out of repair. It is true that, in Russell v. The Men of Devon, i Term Rep. 667, the argument chiefly insisted upon was, that the action would not lie because the inhabitants of a county are not a corpora- tion, and therefore can not be sued collectively ; but the reason relied on by Lord Kenyon, C. J., and Ashurst, J., was not so much the technical one referred to as that which is expressed in Bro. Abr., title, 'Action on the Case,' p. 93. That passage is thus explained and paraphrased by Alderson, B., in Mackinnon v. Penson, 11 L. J., M. C. 57 ; 8 Ex. 319, 'that inasmuch as the highway ought to be repaired by the public, any injury arising from that neglect can not be the subject of an action, but is only ground for the crown interfering.' But whatever the reason, the fact remains that no action could be maintained for an injury arising from the non- repair of a highway by the parish, and the legislature has not interfered by any general enactment to give a remedy by action to persons sustaining such an injury. It is, therefore, incumbent on the plaintiff who seeks to establish that such a right is exceptionally given to per- sons sustaining an injury in a particular district, to show distinctly that the legislature had such an intention in passing the enactment to which such an effect is attrib- uted." His lordship, after considering the decisions bearing upon the subject, and especially the case of Hartnall v. The Ryde Commissioners {ante, 87), and the act upon which that case was decided, continued : "There is no such provision in the Public Health Act, 1848. The enactment that the streets shall 'vest in' the local board, whatever meaning may be assigned to that expression, does not seem to us to enlarge the lia- bility resulting from the following words : ' that they shall be under the management and control of the local 92 NEOLIOENT USE OF PROPERTY, ETC. board,' language similar to that used in the statute under consideration in The ^ueen v. The Inhabitants of St. George, Hanover Square, 3 Camp. 222, where it was held, that the imposing of the duty of repairing on a person or body other than the parish, did not by implication exempt the parish from liability to indictment, and while this lia- bility remain the cases above referred to — Toung v. Davis, 7 Hur. & N. 760; 31 L. J., Ex. 250; Parsons v. St. Matthew's, Bethnal Green, L. R., 3 C. P. 56 ; 37 L. J., C. P. 62^establish that no right of action is created against those to whom the management and control of the roads is given. For these reasons we are of opinion that the legislature did not intend, by the Public Health Act, 1848, to give to a person in the position of the plaintiff a right of action which did not previously exist, and our judgment must therefore be for the defendants." Sec. 5. — Negligence in the keeping of animals. It is perfectly clear law that the owner of an animal is liable for an injury of any kind committed by it, if, he knows that the animal is likely to commit such an in- jury; but if he has no such knowledge, then he is not liable.^ Per Erie, C. J., in Cox v. Burbridge, 13 Com. B., N. S. 430; 32 L. J., C. P. 89. If the animal be of a kind which is ordinarily vicious, as a lion or a bear, the owner will be liable generally for its acts of ^The owner of a domestic animal is liable for the injuries which it may commit, provided the owner have notice ' of its vicious pro- pensity, or that it was accustomed to do mischief Vrooman v. Sawyer, 13 Johns. 339; Lyke v. l^an Leuren, 4 Denio, 127. 'The question of knowledge is for the jury. Campbell v. Brown, 19 Penn. 359. Even if the person bitten is a trespasser in the day-time. Loomis v. Terry, 17 Wend. 496. As to what will amount to proof of such notice or knowledge, see Buckley v. Leonard, 4 Denio, 500. KEEPING OF ANIMALS. 93 ferocity, for he is bound, at his peril, to keep it secure ; but as regards domestic animals, and those the disposition of which is mild, as a dog, ox, cow, or horse, he will be liable only in the event of his knowing that it is accus- tomed to do mischief. R. v. Huggins, 2 Ld. Raym. 1583 ; Bull. N. P. 76; Jenkins v. Turner, i Ld. Raym. 110. A man is entitled to keep a ferocious dog for the pro- tection of his premises, and to let it loose at night; therefore, where the defendant, for the protection of his yard, kept a fierce dog, which was tied up all day and was let loose by night, and the defendant's foreman incautiously went into the yard after dark, knowing that the dog was let loose at night, and was thrown down and bitten by the dog, it was held that he was not entitled to recover damages. Brook v. Copelan4j i Esp. 302. A man, however, has no right to put a ferocious dog in such a situation in the way of access to his house, that a person innocently coming there for a lawful purpose in the day-time may be injured by it. Sarch v. Blackburn, 4 Car. & P. 300; Moo. & M. 505; Tindal, C. J., Curtis V. Mills, 5 Car. & P. 489 ; Charlwood v. Greig, 3 Car. & Kir. 48. Even the putting up of a notice, to beware of the dog, will not exempt the owner of the animal from liability to a person injured, if it appear that the latter could not read, or did not in fact read the notice. If the plaintiff was lawfully in a way leading to the house, and was in point of fact ignorant of the notice, and of the danger from the dog, at the time he was bitten by it, he will be entitled to compensation in damages. Sarch v. Blackburn, supra. In Jones v. Perry, 2 Esp. 482, a dog having been bit- ten by another that was laboring under canine madness, the owner fastened it up, but a child coming near and 94 NEGLIGENT USE OF PROPERTY, ETC. irritating it, the animal flew at and bit the child, in con- sequence of which the child was seized with hydrophobia, and died ; and upon an action being brought by the father for expenses incurred. Lord Kenyon, C. J., held, that the father might maintain it, it being the duty of the owner to have prevented the dog from doing mis- chief, immediately he became acquainted with the fact of the dog laboring under so dangerous and fatal a malady. Where the defendant's bull, which was being driven along the public streets, ran at a man who had a red handkerchief round his neck, and gored him, and the defendant after the accident was heard to say that the red handkerchief caused the mischief, as a bull would run at anything red — it was held, that this was some evidence to go to a jury, to show that the defendant knew that his bull was a dangerous animal. Pollock, C. B., said : " As the circumstance of persons carrying red handkerchiefs is not uncommon, and it is reasonable to expect that in every public street persons so dressed may be met with, we think it was the duty of the de- fendant not to suffer such an animal to be driven in the public streets, possessing as he did the knowledge that if it met a person with a red garment it was likely to run at and injure him." Hudson v. Roberts, 6 Ex. 699; 20 L. J., Ex. 299.^ In May v. Burdett, 9 Q. B. loi, the declaration stated that the defendant wrongfully kepj a monkey, well know- ing that it was of a mischievous and ferocious nature and used and accustomed to attack and bite mankind and that it was dangerous to allow it to be at large; and that the monkey, whilst the defendant kept the same as aforesaid, did attack^ bite, and injure the female plaint- ^Ficken V. Jones, 28 Cal. 618. KEEPING OF ANIMALS. 95 iff, whereby, etc. It was objected, on the part of the defendant, that the declaration was bad, for not alleging negligence or some default of the defendant in not prop- erly or securely keeping the animal; and it was said that, consistently with this declaration, the monkey might have been kept with due and proper caution, and the injury might have been entirely occasioned by the carelessness and want of caution of the plaintiff herself. Lord Denman, C. J., however, said: "The conclusion to be drawn from an examination of all the authorities appears tb us to be this: that a person keeping a mis- chievous animal, with knowledge of its propensities, is bound to keep it secure, at his peril, and that if it does mischief, negligence is presumed without express aver- ment." There is no distinction between the case of the keep- ing of an animal which breaks through the ordinary tameness of its nature and becomes fierce, and is known by the owner to be so, and the keeping of one which is fer^ nature; therefore, where the declaration stated that the defendant wrongfully and injuriously kept a ram, well knowing that he was prone and accustomed to attack, butt, and injure mankind, and that the said ram, while the defendant so kept the same, attacked, butted, and threw down the plaintiff, the court held the declara- tion sufficient, although it contained no averment of negligence. Jackson v. Smithson, 15 Mee. & W. 563-; 15 L. J., Ex. 311. To render a person responsible for injuries committed by an animal, of which he is owner, which is of a domestic and quiet nature, such as a dog or a horse, he must be shown to have had a knowledge that it is. accustomed to do mischief, the gist of the action in such a case not being the negligent keeping, but the keeping with a 96 NEGLIGENT USE OF PROPERTY, ETC. knowledge of the mischievous propensity. Jackson v. Smithsori, supra ; May v. Burdett, supra ; Cox v. Bur bridge, 13 Com. B., N. S. 430; 32 L. J., C. P. 89. This knowledge must be affirmatively proved, for although the animal may in fact have before done mischief, yet, if this is unknown to the defendant, he will not be lia- ble. In Beck and Wife v. Dyson, 4 Camp, 198, which was an action for keeping a savage and an untractable dog, which had bitten the plaintiff's wife, it appeared that the animal had been in general fastened up ; no evidence was adduced that the dog had been accustomed to bite mankind, but it was shown that the defendant had prom- ised compensation. Upon this. Lord Ellenborough said: "The plaintiff must be called, for, in order to maintain this action, proof of defendant's knowledge is essential." In Card v. Case, 5 Com. B. 622, the declara- tion stated that the defendant wrongfully kept a dog of a ferocious and mischievous description, well knowing, etc., and that while he so kept the dog it worried and bit the plaintiff's sheep. The defendant pleaded not guilty. At the trial it appeared that the defendant's dog had worried the plaintiff's sheep, but there was no evidence that the defendant knew the dog was accustomed to bite sheep, and the plaintiff was accordingly nonsuited.^ As to this, see now 28 and 29 Vict., c. So, post. The vital necessity of proving affirmatively the scienter in cases of this description was recognized in Stiles v. The Cardiff Steam Navigation Co., 1^2, L. J., Q. B. 310. There the plaintiff, innocently and without negligence, went on to the premises of the defendants, a corpora- tion, where he was bitten by a dog, which was chained ' Evidence of the dog's general ferocity is sufficient. McCasktll v. Elliott, 5 Strob. 196. KEEPINO OF ANIMALS. 97 in a place in which it could not be seen by the plaintiff. The dog had previously bitten a person, as was known to some of the servants of the defendants, but those servants had no control over the affairs of the corpora- tion, or over the dog; and it was held, that, assumin - that the defendants knew the dog was a mischievous one, and accustomed to bite, they would be liable in an action brought by the plaintiff"; but further, that there was no evidence to show that the defendant's had such knowledge, and that in the absence of such evidence the action was not maintainable. In giving his judgment, Crompton, J., says, " Upon this point there is no difference between a corporation and an individual ; and I quite agree that the knowledge of a servant, representing his masters, and acting within the scope of their delegated authority, may be competent to affect his masters with that knowl- edge. But is it found in this case that any such persons had knowledge — persons competent to bind the defend- ants by their admissions, for such evidence is in the nature of an admission ? No doubt there must be some such person, for there must have been some one on the premises to control the business of the defendants. It would have been sufficient to show knowledge in the manager, or in some person having the control of the yard. I had some doubt whether the knowledge must not be brought home to some person who kept and had the care of the dog, and had power to put an end to the keeping of it, but perhaps it would be enough if he had the care of the dog. But all that was found is, that some persons who appear , rather to have had the care of the horses had seen, or had heard that the dog had bitten a person before. It is more like the case of a gardener, or a cook, hearing that their mistress' lap-dog was given to bite, and I think that the evidence wholly fails to 8 98 NEGLIGENT USE OF PROPERTY, ETC. bring home the knowledge to any person whose knowl- edge, in point of law, would be that of the defendants." Upon this point Blackburn, J,, also, said, "I think that where an animal is known to be dangerous, and is kept by its owner in a place where it might do injury to a person, who without any fault of his own was in that place, and it does injure a person under such circum- stances, and there is the necessary proof as fo the scienter^ an action may be maihtained. Under the circumstances of this case, it must be taken that the company knew that a person might go down the yard, in the mannerin which the plaintiff did go, and the jury might fairly draw the inference that the company had placed the dog where he might do injury to persons going innocently down the yard. But then the plaintiff's case fails upon the second point, the main question being, whether there was any evidence of the scienter? There is no difference between corporations and individuals in this matter, and notice to a person competent to receive the notice would be notice to the corporation. Upon the facts proved, the jury might fairly think that some of the men had seen the dog bite the other person, and it appears that some of them told the plaintiff of the fact. If they were the proper persons to have notice, what they said would be admissible, as being part of the res gesta ; but the real difficulty still remains, whether they were the persons who had the control of the yard, or of the dog, or of the business, so as to be proper persons to receive notice for the company? It does not appear that they had anything to do beyond taking care of the horses, and certainly the plaintiff does not show that they had anything to do with the dog. There was, therefore, no evidence from which the jury could reasonably presume KEEPING OF ANIMALS. QQ that the defendants had knowledge of the character of the dog." See Sarch v. Blackburn, ante, 93. Where, however, a dog was proved to be of a savage disposition, and the defehdant had warned a person to beware of it, lest he should be bitten, it was held, that this was evidence for a jury of the defendant's knowl- edge of the nature of the animal. Judge v. Cox, i Stark. 285. It is not necessary to show that the dog has bit- ten another man before it bit the plaintiff; it is suffi- cient to show that the defendant knew that it had evinced a savage disposition by attempting to bite. Worth V. Giiling, L. R., 2 C P. i. In an action for an injury inflicted by the bite of a dog, in order to establish the scienter, it was proved that the wife of the defendant (who was a milkman) occasion- ally attended to his business, which was carried on upon premises where he kept the dog, and that a person had go'ne there and made a formal complaint to the wife, for the purpose of its being communicated to her hus- band, of the dog having bitten such person's nephew. Upon this it was held, that there was evidence of the husband's knowledge of the dog's propensity to bite. Gladman v. Johnson, 36 L. J., C. P. 153. In giving his judgment, Bovill, C. J., said, "I am not prepared to assent to the proposition that notice to an ordinary servant, or even to a wife, would in all cases be suffi- cient to fix the defendant, in such an action a's this, with knowledge of the mischievous propensity of the dog; but here it appears that the wife attended to the milk business, which was carried on upon the premises where the dog was kept, and that a formal complaint as to that dog was made to the wife when on the premises, and for the purpose of being communicated to her hus- band. It may be that this is but slight evidence of the 100 NEGLIGENT USE OF PROPERTT, ETC. scienter, but here the only question is, whether it i^vi- dence of it ? I think it is." In Line v. Taylor, 3 Fost. & Fin. 731, the dog was allowed to be brought into court, and inspected by the jury, that they might judge of its disposition. In Smith v. The Great Eastern Railway Co , L. R., 2 C. P. 4; 2^ L. J. C. P. 22, a railway company was possessed of a railway station, through which there was a way used by the public. One evening a female pas- senger on the platform was attacked by a strange dog ; complaint was made to the officials ; its removal prom- ised, and it disappeared. About an hour and a half afterward the signalman found the dog worrying a cat in the signal-box near the platform, and kicked it out, whereupon the dog rushed away to the platform, where people were getting in and out of a train, and bit the plaintiff who was a passenger, and who brought an action against the company for negligence ; whereupon it was held, that there was no evidence of negligence to render the defendants-liable. In the case of injury by a dog to cattle or sheep, the statute of 28 and 29 Vict., c. 60 ("An Act to render owners of dogs in England and Wales liable for injuries to cattle or sheep "), renders evidence of a mischievous propensity of the dog, or of the owner's knowledge thereof unnecessary. Section i enacts, that — " The owner of every dog shall be liable in damages for injury done to any cattle or sheep by his dog ; and it shall not be necessary for the party seeking such damages to show a previous mischievous propensity in such dog, or the owner's knowledge of such previous propensity, or that the injury was attributable to neglect, on the part of such owner. Such damages shall be re- KEEPING OF ANIMALS. IQl coverable in any court of competent jurisdiction by the owner of such cattle or sheep killed or injured. Where the amount of the damage claimed shall not exceed 5/., the same shall be recoverable in a summary way before any justice or justices sitting in petty sessions, under the provisions of the act 11 and 12 Vict., c. 43."^ Section 2 enacts, that — " The occupier of any house or premises where any dog was kept or permitted to live or remain, at the time of such injury, shall be deemed to be the owner of such dog, and shall be liable as such, unless the said occupier can prove that he was not the owner of such dog at the time the injury complained of was committed, and that such dog was kept, or permitted to live or remains, in the said house or premises, without his sanction or knowledge : Provided always, that where there are more occupiers than one in any house or premises, let in separate apartments or lodgings, or otherwise, the occupier of that particular part of the premises, in which such dog shall have been kept or permitted to live or remain at the time of such injury, shall be deemed to be the owner of such dog." In Wrig/it V. Pearson, L. R., 4 Q. B. 582; 38 L. J., Q. B. 312, it was decided that horses are included under the term " cattle " in tl\e above enactment. In Penton v. Murdoch, 11 Law Times Rep. 371, the declaration alleged that the defendant had a horse, and well knowing it to be glandered, and to be in an infec- tious state, delivered the said horse to the plaintiff, to be kept by the plaintiff for the defendant in a stable of the plaintiff with another horse of the plaintiff, and *As similar statutes have been passed in America, reference to them must be had, in order to ascertain the liability of owners or possessors of such dogs. 102 NEGLIGENT USE OF PROPERTY, ETC. without informing the plaintiff that the said horse was glandered ; by means of which the plaintiff, not know- ing that the said horse was glandered, was induced by the defendant to and did place the said horse in a stable of the plaintiff with the said horse of the plaintiff, and the said disease was then communicated by the said horse of the defendant to the said horse of the plaintiff, so that the said horse of the plaintiff had to be killed. It was held, that the declaration disclosed a good cause of action. LIABILITY OF EMPLOYEES, ETC. 103 CHAPTER IV. AS TO THE LIABILITY OF EMPLOYERS FOR THE NEGLIGENCE OF, AND ACCIDENTS TO, THOSE WHOM THEY EMPLOY. Sec. I. — Liability for the negligence of those whom they employ. " 2. — When not liable for the negligence of their servants. " 3- — Liability for injuries by negligence to those in their em- ployment. " 4. — Liability for injuries received by their servants through the negligence of fellow-servants. Sec. I. — On the liability of employers for the negligence of those whom they employ. When the relationship of master and servant or agent exists, the master is responsible for injury occasioned by the negligent conduct of the servant in carrying out his orders or in the course of his employment. Every servant acting in the execution of his master's business represents the master himself, and his acts are, in con- templation of law, the acts of his master. This rule of law applies not only to domestic servants who have the care of carriages, horses, and other things in the employ of the family, but to other servants whom the master or owner selects and appoints to do any work or superintend any business, although such servants be not in the im- mediate employ or under the superintendence of the master; as, for instance, if a man is the owner of a ship, he himself appoints the master, and he desires the master to appoint and select the crew ; the crew thus become 104 LIABILITT OF EMPLOYERS, ETC. appointed by the owner, and are his servants for the management and government of the ship, and if any damage happen through their default, it is the same as if it happened through the immediate default of the owner himself So, the same principle prevails if the owner of a farm has it in his own hands and he does not personally interfere in the management, but appoints a bailiff or hind, or hires other persons under him, all of them being paid out of the funds of the owner and selected by himself, or by a person specially deputed by him ; if any damage happen through their default the owner is answerable, because their neglect or default is his, as they are appointed by and through him. Laugher V. Potnter, 5 B. & C. 554, ^^r Littledale, J. ; Addison on Torts. See Tuberville v. Stamp, i Ld. Raym. 264; Bush v. Steinman, i Bos. & Pul. 404; Huggy v. Fieid, 4 L. J., Ex. 239; Sadler v. Henlock, 24 L. J., Q B. 138. In ordinary cases of mere negligence, no difficulty can arise in holding the master or employer liable. But inasmuch as his liability often attaches where the mis- chief arises from the willful, reckless, or malicious con- duct of the servant or agent,^ it becomes essential to inquire whether or not and to what extent the servant was acting within the scope of his employment and in furtherance of his employer's business and benefit. Croft V. Alison, 4 B. & Aid. 590. If at the time the wrongful act was done the servant was in fact acting in 'The pkintifF, a passenger on defendants' road, applied to the bag- gage-master to have his trunk checked, which not being promptly donej [he plaintiff became angry and used threatening and abusive language whereupon the baggage-master seized a hatchet and struck him. Held, that the company was not liable. L. M. R. R. Co. v, Whetmore, 19 Ohio St. 1 10. FOR THOSE WBOM THET EMPLOY. 105 the execution of his master's business and within the scope of his employment, his master will be liable. Thus, in Seymour v. Greenwood, 6 Hur. & N. 359; 30 L. J., Ex. 189, affirmed in the Ex. Ch., 30 L. J., Ex. 329, the facts were, that the plaintiff, who was a pas- senger in the defendant's omnibus, was removed by the conductor, the servant of the defendant, in such a man- ner that the plaintiff fell into the road and was severely injured. The behavior of the plaintiff was such as to justify the conductor, in the discharge of his duty, in removing him from the omnibus, and the carelessness of the conductor in removing him was the cause of the injury. Upon this, it was held, that there was evidence^ from which the jury might find that the act of the con- ductor was one for which the defendant was liable. Pollock, C. B., in giving his judgment, said: "I think there was evidence in this case that the conductor, the servant of the proprietor of the omnibus, was obey- ing the lawful commands of his master in removing a troublesome passenger, I do not believe that he in- tended to do any mischief, but his want of care clearly was the cause of the mischief, and, therefore, I think that the effect of the evidence is, that the servant, by carelessly executing his master's commands, caused the mischief complained of, and that is what I should have found had I been on the jury." Martin, B., also, said: " If, by an act done by a servant within the scope of his ordinary employment, another person is injured, that person may maintain an action against the master, and the act of removing the plaintiff from the omnibus was within the scope of the conductor's ordinary em- ployment. In Roe v. 'The Birkenhead Railway Co., 7 Ex. 2^ ; 20 L. J., Ex. I, and other cases of that class, it is laid down that the plaintiff is bound to show that 106 LIABILITY OF EMPLOYERS, ETC. the act of which he complains is done by the authority, express or implied, of the defendants ; but the criterion is not whether the master has given the authority to the servant to do the particular act, but whether the servant does it in the ordinary course of his employment. The true criterion is not whether the act of the servant is a trespass, for in the greater number of actions against masters for acts of their servants, for which the masters are held liable, the servants are trespassers, but whether the act of the servant is willful an,d malicious ? In the latter case the master would not be liable." See Walker V. The Southeastern Railway.Co., 39 L. J., C. P. 346, post. Upon this question, without multiplying authorities, it will be almost sufficient to refer to the case of Lim- pus V. The London General Omnibus Co. [Limited), i Hur. & C. 526; 32 L. J., Ex. (Ex. Ch.) 34. In that case it appeared that a servant, employed by the defendants to drive their omnibus, drew his omnibus across the road in front of a rival omnibus of the plaintiff to ob- struct the passage of the latter, and in so doing ran against and injured the plaintiff's omnibus. The de- fendants' servant had express directions from his mas- ters not to obstruct other omnibuses or to annoy their drivers or conductors. The defendants' servant said he did it on purpose, and to serve the plaintiff's driver as the latter had served him. On the trial of the action for the injury, the judge (Martin, B.) directed the jury that if the defendants' driver, being irritated, acted carelessly, recklessly, wantonly, or improperly, but in the course of his employment, and in doing that which he believed to be for the interest of the defendants — then the defendants were responsible for the act of their servant, and that the instructions given by the defend- FOR THOSE WHOM THEY EMPLOY. 107 ants to the driver not to obstruct other omnibuses, if he did not observe them, were immaterial as to the question of the master's liability, but that if the true character of the driver's act was, that it was an ac;t of his own, and in order to effect a purpose of his own, then the defendants were not responsible. Upon this direction being excepted to, the Exchequer Chamber held that it was correct. In the course of his judgment, Willes, J., said: "It appears clearly to me that this was (and it was treated by my brother Martin as) a case of improper driving, and not a case in which the serv- ant did anything altogether inconsistent with the dis- charge of his duty to his master, and out of the course of his employment, a fact, upon which it appears to me that the case turns. This omnibus of the defend- ants was driven in before the omnibus of the plaintiff. Now, of course, one may say, that it is no part of the duty of a servant to obstruct another omnibus, and that in this case the servant had distinct orders not to obstruct the other omnibus. I beg to say, in my opinion, those instructions were perfectly immaterial. If they were disregarded, the law casts upon the master the liability for the acts of his servants, in the course of his employment, and the law is not so futile as to allow the master, by giving secret instructions to a serv- ant, to set aside his liability. I hold it to be perfectly immaterial, that the masters directed the servant not to do the act which he did. As well might it be said, that if a master, employing a servant, told him that he should never break the law, he might thus absolve him- self from all liability for any act of the servant, though in the course of the employment." Byles, J., puts the case very pertinently. He says, "I am also of opinion that my brother Martin's direction in this case was cor- 108 LIABILITY OF EMPLOYERS, ETC. rect. He uses the words 'in the course of his employ- ment,' which, as my brother Willes has pointed out, are expressions directly justified by the decisions/ His direction, as I understand it, amounts to this, that if a servant acts in the prosecution of his master's business, with the intention of benefiting his master, and not to benefit or gratify himself, then the master is responsi- ble, although it were in one sense a willful act on the part of the servant. Now, it is said, that this was con- trary to the master's instructiohs. That might be said in ninety-nine cases out of a hundred, where actions are brought against the master to recover damages for the reckless driving of a servant. It is said that it was an illegal act. So, in almost every case of an action against the master for the negligent driving of a servant, an illegal act is imputed to the servant." See also Green v. The London General Omnibus Co., 7 Com. B., N. S. 290; 29 L. J., C. P. 13, So, also, where a servant illegally arrested a person, but did so in the supposed discharge of his duty, it was held, that the master was liable. Thus, in Goff v. The Great Northern Railway Co., 3 Ell. & Ell. 672 ; 30 L. J., Q. B. 148, it appeared that the plaintiff, having taken a return ticket from the London station of the de- fendants' railway, at the end of the return journey gave up an old half-ticket which he had put into his pocket by mistake for the right one, whereupon the ticket collector took the plaintiff to the ticket-office, where he explained how the mistake had occurred ; he then went with the col- lector to the inspector of police in the defendants' station, and they all went together to the superintendent of the line, who, after hearing the matter, said, "I think you had better take him, but you had better first ob- FOR THOSE WHOM THEY EMPLOY. 109 tain the concurrence of the secretary ;" the inspector then left, and on his return he directed a police constable to take the plaintiff to the public police station, and charge him with having traveled on the defendants' without having paid his fare, with intent to avoid pay- ing it. The plaintiflF was accordingly taken to the station, and before a magistrate, and on the hearing the plaintiff's story proved true, and the complaint was dis- missed. The police inspector and constable were in the pay of the defendants. The plaintiff having brought an action against the defendants* for false imprisonment, it was held, that inasmuch as 8 Vict., c. 20 (by sees. 103, 104), imposes a penalty on any person traveling on a railway without having paid his fare, with intent to avoid the payment thereof, and empowers all officers and servants on behalf of the company, to apprehend such person until he can conveniently be taken before a justice , it might reasonably be assumed that a railway company carrying passengers, would, in the ordinary course of business, liave on the spot officers with authority to determine without delay, whether the com- pany's servants should or should not on the company's behalf apprehend a passenger accused of this oflFense ; and that the fact of all subordinate servants of the com- pany referring to the superintendent of the line as the superior authority was sufficient evidence that he was an officer having authority from the company to act for them in the matter ; and that the defendants were there- fore liable for the false imprisonment directed by him.^ 'The plaintiff, a passenger in defendants' railway car, gave up his ticket to a brakeman, who was authorized to demand and receive it. Shortly after the latter approached the plaintiff, denied that he had received his ticket, and assaulted and grossly insulted him. In an action against the no LIABILITY OF EMPLOYERS, ETC. So, in Walker v. The Southeastern Railway Co., 39 L. J., C. P. 346, it appeared that W., who was travel- ing on the defendants' line, on arriving at a station, took part verbally in a dispute going on between some other passengers and the defendants' servants, relative to a railway ticket, whereupon the defendants servants seized him, ran him down an incline, pushed him out of the station, and as he passed through the door gave him a kick. Upon an action brought for this assault, it was held that the defendants were liable. See also The Eastern Counties Railway Co. v. Broom, 6 Ex. 327 ; 20 L. J., Ex. 196. It may be observed, that although the person, whose misconduct or carelessness causes the injury, is not fill- ing the position of servant, yet if he is intrusted by another party with the control of that which causes the damage, and such party is present with him at the time, he will be answerable for the mischief occasioned. Thus, where a person borrowed a horse and* chaise, for his own use and enjoyment, and rode about in it driven by a friend whom he allowed to drive, and in consequence of the negligence of such friend in driving an accident oc- curred, he was held to be responsible. fVheatley v. Patrick, 1 Mee. & W. 650. Although it will hereafter be. considered how far the servant in any given case may be so far employed in the business of his master as to render such master liable railway company to recover damages ; Held, that the defendants were liable, and that the plaintiff could recover exemplary damages. The defendants having retained the brakeman in their employ after notice of his conduct, the court refused to set aside as excessive a ver- dict for $4,850. Goddard\. Grand T. R. R. Co., 57 Maine, 202. See the cases cited by the court on the above decision. Kline v. The Cent. Pacific R. R. Co., 37 Cal WHEN NOT LIABLE FOR THEIR SERVANTS. m ^ ■ for his negligence, it may be here observed that in such case the proper question to leave to the jury is — whether at the time of the act complained of, the servant was engaged on his master's business and with his authority ? Thus, where the general manager of, the defendant, a horse dealer, had a horse and gig of his own, which he used for the defendant's business as well as his own, and in return the horse was kept at the defendant's expense, and on one occasion the manager, on putting the horse into the gig, told the defendant he was going to S. to collect money (on behalf of the defendant), and after- ward to his own doctor, and before he got to S. he ran [lis gig against the plaintiff's horse and killed it; it was held, that there was abundant evidence to make the de- fendant responsible, although he had not expressly re- quested his manager to use the horse and gig on the par- ticular occasion. Patten v. Rea, 2 Com. B., N. S. 606 ; 26 L. J., C. P. 235. The question as to the party to be made liable, where the accident is occasioned by the neglect of a person in the capacity of a servant, is sometimes one of difficulty, since it may occur that, whilst he is really the servant of one person, he is actually occupied about the business of another. Upon this subject see the next chapter. Sec. 2. — When employers are not liable for the negligence of their servants or agents toward third persons. The general rule that those who employ others are liable for their negligence, is subject to some apparent exceptions, one of the more cortimon being, that no liability attaches where the injury has arisen from the willful, malicious, or negligent act of the servant not done in the execution of his duties. McManus v. Crick- 112 LIABILITY OF EMPLOYERS, ETC. ett, I East, 1 06. Thus, where the carman of the defend- ant instead of putting up his master's horse and cart at the stable was persuaded to drive the foreman part of the way home, and on his return from his journey drove against the plaintiff, it was held, that the master was not liable, on the ground that the driver had started on a new journey wholly unconnected with his employment. Mitchell V. Crassweller, 13 Com. B., N. S- 237 ; 22 L. J., C. P. 100; see Joel v. Morrison, 6 C. & P. 503. So, where the defendant, a wine-merchant, carrying on business in the Minories, sent his clerk in a cart to Blackheath to deliver wine and bring back empty bot- tles, and the cart had reached King William street on its way back when the clerk persuaded the carman to drive to the clerk's house near the City-road upon busi- ness of his own, and the cart while in the City-road, and about two miles out of its way, ran against and injured the plaintiff: it was held, that, as it appeared that the driver had started upon an independent journey for a purpose unconnected with his master's business, the defendant was not liable for the consequences of the accident. Storey v. Ashton, L. R., 4 Q. B. 476; 38 L. J., Q. B. 223. Where the defendant's coachman was driving the defendant's carriage through a narrow street which was blocked up by a luggatge-van containing goods of the plaintiff, which were being unladen and taken into the plaintiff's house, and behind the van stood the plaintiff's gig, and the defendant's coachman (there not being room for the carriage to pass) got off his box and laid hold of the van -horse's head and moved the van and caused a large packing-case to tumble on the shafts of the gig and broke them, it was held, that the defend- ant was not liable for the injury, the servant at the time not being in the execution of his master's orders, or WHEN KOT LIABLE FOR THEIR SERVANTS. 113 doing his master's work. Laml> v. Polk, 9 C. & P. 631. In Williams \. Jones, 3 Hur. & C. 256; 23 L. J., Ex. 297, it appeared that the defendant bought some boards from the plaintiff, a timber merchant, and at the defendant's request the plaintiff gave him permission to use his shed for the purpose of making a sign-board. The defendant employed D., a carpenter, to make the sign-board at a fixed price, and D. used the shed for that purpose, with the plaintiff's knowledge. D., while so working, lighted a pipe from a match with a shaving, which he accidentally dropped, and the shed was burnt down ; and upon an action being brought against the defendant, it was held, that he was not liable ; for that the act of D. was not a negligent act within the scope of his authority. In the course of giving the judgment of the court, Martin, B., said : " Now, we are not aware of any authority which shows that any contract exists between a person so occupying a shed under a license beyond that which the law would itself impose in respect of negligence ; and we think, therefore, that the only duty which was imposed upon the defendant was, that there should not be negligence in the use of the shed ; and if in the course of the employment, Davis, the carpenter, had been guilty of any negligence which could be at all applicable to the employment in which he was engaged, it may be that the defendant would be responsible; but we think, upon the best consideration that we can give to the case, it is impossible to hold, that a man who employs another for a sum of money to do a job is to be responsible because that man does a very natural and common act, and lights a pipe, which the jury have found to be a negligent act ; it is impos- sible to say that that casts any liability upon the em- ployer. If the facts were correctly found by the verdict, 114 LIABILITY OF EMPLOYERS, ETC. Davis himself would be liable and responsible for this negligence, for he would have acted negligently when on the premises of another person, toward whom he was, at all events, bound to use reasonable care for the pur- pose of protecting the premises from injury, and there- fore the action would lie against him."^ Another apparent exception to the general rule is, where, though the person causing the injury is engaged upon the business of another, he is not in fact the servant of that other, but of a third party. Thus, if a carriage and horses are let out to hire by the day, week, month, or job, and the driver is selected and appointed by the owner of the carriage, the latter is responsible for all injury resulting from the negligent and careless driving of the vehicle, although the carriage may be in the possession and under the control of the hirer. Laugher v. Pointer, 5 B. & C. 572 ; Smith v. Lawrence, 2 Moo. & Rob. 2 ; Dean v. Braithwaite, 5 Esp. 36. In Dalyell v. Tyrer and others. Ell., Bla. & Ell. 899 ; 28 L. I., Q. B. 52, the lessee of a ferry hired of the defendants for the day a steamer with a crew to carry his passengers across. The plaintiff, having paid his fare to H., passed across on the steamer, and while on board was injured by the breaking of a rope, owing to the negligence of the crew in the manner of mooring, and it was held, that the crew remained the servants of the defendants, who were therefore liable for their negligence ; and that, as the negligence was such as would have made the defendants liable to a mere stranger, and the plaintiff was on board with their consent, it was immaterial that he was a passenger under a contract with H. In ^arman v. Burnett, 6 Mee. & W. 499, two elderly iTo the same effect, WeUon v. N. T. and H. R. Co., 5 Bos. 586. Bardy. Tohn, 29 Penn. St. 482. WHEN NOT LIABLE FOR THEIR SERVANTS. 115 ladies, being possessed of a carriage of their own, were fur- nished by a job-master with a pair of horses with a driver by the day or drive. They gave the driver a gratuity for each day's drive, provided him with a livery hat and coat, which were kept in their house ; and after he had driven them constantly for three years, and was taking off his livery in their hall, the horses started off with their car- riage and inflicted an injury upon the plaintiff, and it was held, that the defendants were not responsible, as the coachman was not their servant, but the servant of the job-master. It should be observed, however, that even in such a case, the parties may render themselves personally liable by giving special directions to the driver or by otherwise taking the management of the coach into their own hands. In the above case, Parke, B., said: " It is undoubtedly true that there may be special cir- cumstances which may render the hirer of job-horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual management of the horses, or ordering the servant to drive in a particular manner, which occa- sions the damage complained of." See also the case of Smi(b V. Lawrence, i Man. & R. i, where the owner of a carriage hired four post-horses and two postilions of A., a livery stable-keeper, for the day, to run from London to Epsom and back, and in returning, the postilions damaged the carriage of B. : it was held, that A., as owner of the horses and master of the postilions, was liable to B. for such damage. Also, McLaughlin v. Pryor, 4 Man. & G. 84.^ ' As to what constitutes the relation of master and servant, see Corbin v. Amer. Mills, zj Conn. 274 ; McGatuck v. Wasan; 4 Ohio St. 566 ; Jlthorf V. Tftlfe, 22 N. Y. 355. 116 LIABILITY OF EMPLOYEES, ETC. In all cases where it is sought to render liable not the individual who actually caused the damage, but the person under whose orders he has acted, it is of im- portance to ascertain with exactness that the relation- ship of master and servant really exists, since, if between the party who has done the mischief and him whom it is sought to make liable, another independent party intervenes, from whom the actual wrong-doer has re- ceived his instructions, no such liability will attach. Thus, although a person has ordered a particular thing to be done, yet if he does not employ his own servants or workmen to do it, but intrusts the execution of the work to a person who exercises an independent employ- ment, and has the immediate dominion and control over the workmen engaged in the work, he will not be re- sponsible for injuries done to third parties, from the negligent execution of the work. Cuthbertson v. Far- son, 12 Com. B. 304; 21 L. J., C. P. 165; Murphy v. Caralli, 34 L. J., Ex. 14; Rapson v. Cubitt, 9 Mee. & W. 710. As where a butcher employed a licensed drover, in the way of his ordinary calling, to drive a bullock to Smithfield to the butcher's slaughter-house, and the dirover negligently sent an inexperienced boy with the bullock, who drove the beast into the plaintiff's show-room, where it broke several marble chimney- pieces — it was held, that the butcher was not liable for the damages. Mulligan v. Wedge, 4 Ad. & Ell. 737 ; or where work which can be lawfully done without injury to others is placed in the hands of others, such as builders or contractors, who select their own workmen and servants, and exercise their own controhover them, and these, by their negligence do some damage, such builder or contractor, and not the person by whom he WHEN NOT LIABLE FOR THEIR SERVANTS. 117 is' employed, is the party liable.^ Steel v. 1'hs South- eastern Railway Co., i6 Com. B. 556. This position is well illustrated by the case of Butler v. Hunter, 7 Hur. & N. 826; 31 L. J., Ex. 2T4. That was an action for negligently pulling down a wall of the defendant's house adjoining the plaintifFs, and evidence was given that the wall was taken down by a builder at an estimated cost, in pursuance of directions given to him by an architect employed by the defendant, and who had the general superintendence of the work at the defendant's house. It appeared that, in consequence of the removal of a beam from the wall, the front of the plaintiff's house fell down. It appeared, also, that the plaintiff's house ought, as a reasonable precaution, to have been shored up before the defendant's wall was removed. Upon these facts, it was held, that the defendant was not liable. In his judgment. Pollock, C. B., said : " We have no evidence but this : that a tradesman was applied to, to do that which was necessary to be done, under the circumstances of the case, and it must be assumed, that a direction was given to do it in the ordinary way, with aH the proper precautions, and taking care not to do any mischief No doubt, where a thing in itself is a nuisance, and must be prejudicial, the party who employs another to do it is responsible for all the consequences that may have arisen, but when the 'The maxim respondeat superior does not apply to the case of em- ployer and contractor, where the latter executes an independent employ- ment. Carmen v. Steub. and I. R. R. Co., 4 Ohio St. 399; VanderpooN. Hassan, 28 Barb. 196. Bui where the employer retains control over the mode and manner of doing the work, it seems the employer is liable for the injuries arising from the contractor's negligence or that of his servants. Cin- cinnati V. Stone, 5 Ohio St. 38. 118 LIABILITY OF EMPLOYERS, ETC. mischief arises not from the thing itself, but from the mode in which it is done, then the person ordering it is not responsible, unless the relation of master and servant can be established." This point was further illustrated in the case of Hok v. The Sittingbourne Railway Co., 6 Hur. & N. 488; 30 L. J., Ex. 81. In Overton v. Freeman and another, 11 Com. B. 867; 21 L. J., C. P. 52, the defendants were employed to pave a district by A. They contracted with B. to pave one of the streets. B.'s workmen, in the course of paving the street, left some stones at night in such a position as to constitute a public nuisance, and the plaintiff was injured by fall- ing over these stones. No personal interference of the defendants with, or sanction of, the work of laying down the stones was proved, and upon an action being brought against the defendants, .it was held, that they were not liable. In his judgment in this case, Maule, J., says : " One mode of inquiring whether the defend- ant is liable in cases like the present, is to see whether the act was done by his servant. If the person who committed the act can be so considered, the defendant will be liable ; but he can not be so considered, if he is a subcontractor. If a person is employed to do the particular thing done, the cases show that the person employing him is liable. So, in this case, the sub- contractor might be liable for the acts of his servants ; but it does not follow that the defendants who con- tracted with him are liable for his acts. I think that this case falls within the principle of those cases which decide that when work is being done by a subcontractor, he is civilly and criminally liable, the contractor not liable But here the defendants are sought to be charged, simply because they have contracted with another man to WHEN NOT LIABLE FOR THEIR SERVANTS. 119 do the work, whose servants have been guilty of negli- gence. They are guilty of no negligence. They con- tract with a person who does what is wrong, and he alone is liable." So, where a builder had contracted with the committee of a club to make alterations and improve- ments in the club-house, and prepare and fix the neces- sary gas-fittings, and the builder made a subcontract with a gas-fitter to do this latter portion of the work, and the gas-fitter's workmen allowed the gas to escape, and cause an explosion which injured the butler of the club, and his wife, it was held that the gas-fitter, and not the builder, was liable for the negligence. Rapson V. Cubit t, 9 Mee. & W. 710. In the case of Blake v. mrst, 2 Hur. & C. ao; 32 L. J., Ex. 188, the defendant, a builder, contracted in writing with local commissioners to make a sewer. He verbally underlet to N. the excavation and brick-work, at a fixed price per yard, including fencing, lighting, and watching, the defendant supplying the bricks in his own carts, and removing the surplus clay from the cutting, N. employed men under him by the day. The defend- ant's name as contractor was over the door of an office near the works, but the commissioners employed the clerk of the works. The defendant stated that if the work were not done to his satisfaction, he should have dismissed N. Owing to the insufficient light, the plaintiff fell into an unfenced part of the excavated trench and was injured. After the accident N. put up a fence and a light. Upon these facts, it was held, that the defendant was liable; Bramwell, B., saying, "The question is, whether the defendant had the right to con- trol the thing done here ? I think he had. Suppose the defendant had entered into two contracts for sub- letting, one to dig the hole, and the other to light and 120 LIABILITY OF EMPLOYERS, ETC. watch, he would surely be liable. It does not make any difference that the whole was provided for under one contract." The real test in all cases of this description is, whether or not the defendant had control over the person em- ployed by whom the mischief was occasioned. Sec. 3. — On the liability of employers for injuries by negli- gence to those in their employment. Upon the ground that a servant impliedly takes upon himself the risks and dangers ordinarily attendant upon his calling, a master is not in general responsible for any injury sustained by the servant, whether occasioned by the negligence of a fellow-servant, or from defective machinery, or the dangerous nature of his premises. One of the earliest cases upon this subject is that of Priestly v. Fowler, 3 Mee. & W. 6 ; 7 L. J., Ex. 42, which, as stating the law very clearly, is given here somewhat at length. The declaration stated that the plaintiff was servant to the defendant, and as such serv- ant was desired by the defendant to take certain goods of his in his van which was driven by another servant, and that the plaintiff accordingly was being carried and con- veyed by the van, and it became the duty of the de- fendant to use proper care that the van should be in a fit state of repair, that it should not be overloaded, and that the plaintiff should be safely carried by it ; never- theless, that the defendant did not use proper care in all or any of these respects, and that in consequence of his neglect of those duties the van broke down, the plaint- iff was thrown to the ground, and his thigh fractured. Upon a motion in arrest of judgment, it was held, that the declaration was insufficient, as it contained no prem- ises from which the duty of the defendant, as therein FOR INJURIES TO THOSE IiY THEIR EMPLOY. 121 alleged, could be inferred in law. In giving judgment. Lord Abinger, C. B., said, " It has been objected to this declaration that it contains no premises from which the duty of the defendant as therein alleged can be in- ferred in law : in other words, that from the mere re- lation of master and servant no contract, and, therefore, no duty can be implied on the part of the master to cause the servant to be safely and securely carried, or to make the master liable for damages to the servant, arising from any vice or imperfection, unknown to the master, in the carriage or in the mode of loading or unloading it, for as the declaration contains no charge that the defendant knew any of the defects mentioned, the court is not called upon to decide how far such knowledge on his part of any defect unknown to the servant would make him liable. It is admitted that there is no precedent for the present action by a servant against a master. We are, therefore, to decide the ques- tion upon general principles, and in doing so we are at liberty to look at the consequences of a decision the one way or the other. If the master be liable to the servant in this action, the principle of the liability will be found to carry us to an alarming extent. He who is responsi- ble by his general duty, or by the terms of his contract, for all the consequences of negligence in a matter in which he is the principal, is responsible for the negli- gence of all his inferior agents. If the owner of the carriage is responsible for the sufficiency of the carriage to hiS servant, he is responsible for the negligence of his coachmaker, or of his harness-maker, or his coachman". The footman, therefore, who stands behind the carriage, may have an action against his master for a defect in the carriage owing to the negligence of the coachmaker, or for a defect in the harness arising from the negligence 122 LIABILITY OF EMPLOYERS, ETC. of the harness-maker, or for the drunkenness or want of skill of the coachman; nor is there any reason why the principle should not, if applicable to this class of cases, extend to many others. The master, for example, would be liable to the servant for the negligence of a servant in putting him into a damp bed; for that of the upholsterer for sending in a craggy bedstead, whereby the servant was made to fall down while asleep and in- jure himself; for the negligence of the cook in not properly cleansing the copper vessels used in the kitchen ; of the butcher for supplying the family with meat of a quality injurious to health; of the builder for a de- fect in the foundation of the house, whereby it fell and injured both the master and servant in the ruins. The inconvenience, not to say the absurdity, of these consequences afford a sufficient argument against the application of this principle to the present case. But, in truth, the mere relation of master and servant never can imply an obligation on the part of the master to take more care of the servatit than he may reasonably be expected to do of himself He is no doubt bound to provide for the safety of his servant in the course of his employment to the best of his judgment, informa- tion, and belief The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably appre- hends injury to himself [Levison v. Kirk, i Lane, 67) ; and in most of the cases in which danger may be in- curred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master. In that sort of employment, especially that which is de- scribed in the 'declaration in this case, the plaintiff must have known as well as the master, and probably better, whether the van was sufficient, whether it was over- FOR JX^JVRIES TO THOSE IN THEIR EMPLOT. 123 loaded, and whether it was likely to carry him safely. In fact, to allow this sort of action to prevail would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on behalf of his master, and to protect him against the mis- conduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain, by the negligence of others engaged under the same master, than any recourse against his master for damages could possibly afford. We are, therefore, of opinion that the judgment ought to be arrested." ^ There is nothing legally wrong in the use by an em- ployer of works or machinery more or less dangerous to his workmen, or less safe than others that might be adopted. It may be inhuman so to carry on his works as to expose his workmen to peril of their lives, but it does not create a right of action for an injury which it may occasion when the workman has known all the facts, and is as well acquainted as the master with the nature of the machinery, and voluntarily uses it. Per Bram- well, B., in Dynen v. Leach, 26 L. J., Ex. 222, where it appeared that the defendant was a sugar-refiner, and had 1 Railroad company is not liable for injuries received by the con- ductor arising from defects in the machinery or apparatus of the train under his control, where these defects were known to both parties. MaJ River and L. E. R. R. Co. v. Barber, 5 Ohio St. 541. In Wonder v. Bait, and O. R. R. Co., 32 Md. 411, where a brake- man was injured for an alleged defect in one of the brakes, it was be/d, that the company were not liable "unless it is shown that they were negligent, either in providing the machinery which caused the injury or in selecting the mechanics whose duty it is to keep it in order." Fol- lowing the case of Brown v. Jccrington Cotton Spinning Co., and Sea'-k v. Lindsay, cited below. IVright v. N. T. Central R. R. Co., 25 N. Y. 562. 124 LIABILITY OF EMPLOYERS, ETC. employed the intestate as a laborer, and that it was a part of his duty to fill the sugar molds and hoist them up to higher floors in the warehouse by means of ma- chinery, and that the usual mode of attaching the molds to the machine was by placing them in a sort of net bag, and which effectually prevented any accident, and that this was the mode adopted by the defendant, until from motives of economy he substituted a kind of clip which laid hold of the rims of the mold, and that the deceased on the occasion in question had himself filled the mold and fastened it to the clip, but that when it was being raised the clip by some jerk slipped off the mold, which fell on his head and killed him. Upon these facts the judge at the trial nonsuited the plaintiff, which nonsuit was afterward upheld. So, in Brown v. The Accrington Cotton Spinning Co., 3 Hur. & C. 511 ; 34 L. J., Ex. 208, it was held, that a workman could not recover damages from his employers for an injury sustained by him while at work in his mill, and resulting from the building having been originally negligently constructed, unless personal negligence could be proved against his employers themselves (or against some person acting by their orders), either in having given directions how the building should be constructed, or in having knowingly intrusted the execution of the work to an incompetent person. See also Alsop v. Tates, 2 Hur. & N, 768 ; 27 L. J., Ex. 156. So, the master is not responsible for the dangerous state of his premises if those dangers are known to the servant, and the latter has accepted the employment knowing of the attendant risks, and having an oppor- tunity of guarding against them by his own vigilance and care; as, where the plaintiff alleged that he ha^been hired by the defendant to perform at the defendant's FOR INJURIES TO THOSE IN THEIR EMPLOY. 125 theater, and that on part of the stage there was a hole in the floor, along which the plaintiff had to pass in the discharge of his duty as a performer, and that it was the duty of the defendant to light the floor sufficiently, so as to prevent accidents to those who passed along it — in which case it was held, that no such duty was cast upon the defendant. Seymour v. Maddox, i6 Q. B. 332. In that case, Erie, J., said, "A person must make his own choice whether he will accept employment upon prem- ises in this condition ; and if he do accept such employ- ment, he must also make his own choice whether he will pass along the floor in the dark or carry a light. If he sustain an injury in consequence of the premises not being lighted, he has no right of action agamst the master who has not contracted that the floor shall be lighted." See also Jlsop v. Tates, 1 Hur. & N. 768 ; 27 L. J., Ex. 156 ; Senior v. Ward, i Ell. & Ell. 385; 28 L. J., Q. B. 139. It is, however, the duty of a master to take all reason- able precautions to secure the safety of his workmen, and to see that he does not induce his men to work on the supposition that the tackle and machinery are safe, when he knows at the time that they are unsafe.^ In Patterson v. Wallace, i Macq. H. L. Cas. 784, Lord Cranworth, C, said, " When a master employs a serv- ant in a work of a dangerous character, he is bound to take all reasonable precautions for the safety of that workman. This is the law of England no less than the law of Scotland. It is the master's duty to be careful that his servant is not induced to work under a notion 'Employer is responsible in damages for his own negligence whereby an employe is injured. Ryan v. Fowler^ 24 N. Y. 410; Connollys. Poillon, 41 Barb. 367. 126 LIABILITY OF EMPLOYERS, ETC. that tackle or machinery is staunch and secure when in fact the master knows or ought to know that it is not so, and if from any negligence in this respect damage arise, the master is responsible." In Williams v. Clouch, 3 Hur, & N. 258; 27 L. J., Ex. 325, the declaration stated, that the defendant was possessed of a ladder unsafe- and unfit for use, by any person carrying corn up the same, and that the plaintiff was the defendant's servant, yet the defendant, well knowing the premises, wrongfully and deceitfully ordered the plaintiff to carry corn up the ladder, and the plaintiff in obedience to the order and believing the ladder to be proper for the pur- pose, and not knowing the contrary, did therefore carry corn up it for the defendant, but by reason of its being unsafe and unfit the plaintiff fell from it and was injured. Upon a demurrer to this declaration, it was held, that it was sufficient. In Mellors v. Shaw and another, i Best & S. 437 ; 30 L. J., Q. B. ■}^22>t ^^ plaintiff was employed by the defendants, as a miner, to work in the coal mine. In the course of his employment he received an injury by reason of the sides of the shaft being left in an inse- cure condition. One of the defendants was the super- intendent of the mine, and although he knew of the condition of the mine, continued it in such condition. The plaintiff himself was ignorant that the shaft was unsafe. Upon this, it was held, that the action was maintainable against the defendants. See also Ashworth V. Stanwix and another, 30 L. J., Q. B. 183 ; Roberts v. Smith and others, 2 Hur. & N. 213 ; 26 L. J., Ex. 319 ; Skipp V. The Eastern Counties Railway Co., 9 Ex. 233 ; 23 L. J., Ex. 223; Bartonshill Coal Co. v. Reid, 3 Macq. H. L. Cas. 266 ; Bartonshill Coal Co. v. McGuire, Ibid. 300.^ ' The legal implication is, that the employer will adopt suitable in- struments and means with which to carry on his business, and where FOR INJURIKS TO THOSE IN THEIR EMPLOY. 127 Where machinery is required by statute to be fenced, and the protection is removed by decay or otherwise, the owner, having notice of the defect, is responsible to a servant, who, having entered into the employ when the machinery was fenced, continues in the service in the reasonable expectation of the defect being repaired, and who, without negligence on his part, sustains a personal injury. Holmes v. Clarke, 6 Hur. & N. 349 ; 30 L. J., Ex. 135. In pronouncing the judgment of the court. Pollock, C. B., said : " We think that in a case where machinery is by act of parliament required to be pro- tected so as to guard the persons working in the mill from danger, and a servant continues in the employ- ment, entering upon it when the machinery is in a state of safety, and if (in consequence of danger accruing from the protection being decayed or withdrawn) the servant complains of the want of protection, and it is promised to him from time to time that it shall be restored, we think during that period a master must be considered to take on himself the risk ; and, therefore, if any acci- dent occurs to the servant during that period, the master is responsible for it." See also Couch v. Steel, 3 Ell. & Bla. 402 ; 23 L. J., Q. B. 121.^ injuries to servants or workmen happen by reason of improper and defective machinery and appliances used in the prosecution of the work, the employer is liable, provided he knew or might have known, by the exercise of reasonable care, that the apparatus was unsafe. Giison v. Pacific R. R. Co., 46 Mo. 163; Noyes v. Smith, 28 Vermont, 63; McGatrici v. ff^i/soa, 4 Ohio St. 566. 'The plaintiff, a boy of fourteen, employed in defendants' factory to tend machinery, and on the second day of his employment, while standing in his proper place, tending a drawing-machine, his left hand was caught in the cogs of a machine, standing in dangerous proximity. 128 LIABILlir OF EMPLOYERS, ETC. If one member of a partnership is guilty of an act of negligence whereby a servant is injured, all the part- ners will be liable, assuming that the act of negligence occurred in a matter within the scope of the common undertaking of the partnership. Ashworth v. Stanwix and another, 3 Ell. & Ell. 701 ; 30 L. J., Q. B. 183 ; also, Mellors v. Shaw and another, i Best & S. 437 ; 30 L- J-, Q. B. zn- Sec. 4. — On the liability of masters for injuries received by their servants through the negligence of fellow-servants. As regards the position of a master with reference to damage sustained by his servants through the negli- gence of fellow-servants, the rule of law is now well established, that no liability exists unless he has em- ployed unskillful servants, or he has himself been guilty of negligence. The first case which authoritatively decided this point is that of Hutchinson, v. The Tork, Newcastle and Ber- wick Railway Co., 5 Ex. 343 ; 19 L. J., Ex. 298. In that case the declaration stated that one J. H. was in the employ and service of the defendants, and while he was such servant and in the discharge of his duty as such and badly injured. The following instructions to the jury were held to be correct : If plaintiff was of sufficient age and intelligence to understand the nature of the risk to which he was exposed, and had reasonable notice of the dangerous nature of the service he was performing, the defendants were not liable ; but that, if the defendants knew, or had reason to know, the peril to which the plaintiiF was exposed, and failed to give sufficient or reasonable notice of it, and if plaintiff without negligence, from inexperience, or reliance upon the directions given him, failed to perceive or appreciate the danger, and was injured in consequence, the defendants are liable. Combs w. New Bedford Cord. Co., loz Mass. 572. FOR INJURIES RECEIVED BY SERVANTS, ETC. 129 servant, he became a passenger upon a railway of the defendants, in a carriage belonging to the defendants, drawn by an engine under the guidance, government, and direction of the defendants, to wit, by their servants, and that there was then upon the same railway another engine- and carriage of the defendants under the guid- ance, government, and direction of the defendants, to wit, by their servants, yet the defendants behaved and conducted themselves so negligently, carelessly, and im- properly in and about the guidance, government, and direction of the first-mentioned engine and carriage, and also in and about the guidance, government, and direc- tion of the other engine and carriage, that the last-men- tioned engine and carriage came into collision with the carriage first mentioned, and J. H. was thereby killed. To this there was a plea, that the collision took place solely by the carelessness, negligence, unskillfulness, and default of the said servants of the defendants in the declaration mentioned, and that the said engines and carriages were at the time when, etc., respectively under the guidance, etc., of the said servants, who were then severally fit and competent persons, and the said negli- gence was wholly unauthorized by the defendants, and without the leave, license, or knowledge of the defend- ants. This plea being demurred to, the court held that it was good, and that no cause of action was shown upon the record. In delivering the considered judg- ment of the court, Alderson, B., said : " On this record the question is, whether the defendants are liable for the injury occasioned to one of their own servants by a collision while he was traveling in one of their car- riages in discharge of his duty as their servant in re- 9 130 LIABILITY OF EMPLOYERS, ETC. spect of which injury they would undoubtedly have been liable if the party injured had been a stranger traveling as a passenger for hire ? We think that they are not. This case appears to us to be distinguishable in prin- ciple from that of Priestly v. Fowler. In that case the plaintiff was a servant of the defendant, and had sus- tained an injury by the defendants having overloaded a van in which he, the plaintiff, was traveling by the di- rection of the defendant in the discharge of his ordinary duties. That case was fully considered, and the court, after verdict for the plaintiff, arrested the judgment, on the ground that a master is not in general liable to one servant for damage resulting from the negligence of another ; and some of the inconveniences, not to say absurdities, which would result from a contrary doctrine were there pointed out. The principle upon which a master is in general liable for accidents resulting from the negligence or unskillfulness of his servant, is that the act of his servant is in truth his own act. If the master is himself driving his carriage and from want of skill causes injury to a passer-by, he is of course respon- sible for that want of skill ; if instead of driving the carriage" with his own hands he employs his servant to drive it, that servant is but an instrument set in motion by the master; it was the master's will that the servant should drive, and whatever the servant does, in order to give effect to his master's will, may be treated by others as the act of the master. So far there is no dif- ficulty. Equally clear is it, that though a stranger may treat the act of a servant as the act of his master, yet the servant himself by whose negligence or want of skill the accident has occurred can not ; and therefore he can not defend himself against the claim of a third person. Nor, if by his unskillfulness he is himself in- FOR INJURIES RECEIVED BY SERVANTS, ETC. 131 jured, can he claim damage from his own master upon an allegation that his own negligence was in point of law the negligence of his master. The grounds of this distinction are so obvious as to need no illustration. The difficulty is as to the principle applicable to the case of several servants employed by the same master, and an injury resulting to one of them from the negli- gence of another. In such a case, however, we are of opinion that the master is not in general responsible. Put the case of a master employing A. and B., two of his servants, to drive his cattle to market ; it is admitted, if by the unskillfulness of A. a stranger is injured, the master is responsible; not so if A. by his unskillfulness hurts himself; he can not treat that as the want of skill of his master. Suppose, then, that by the unskillful- ness of A., B., the other servant, is injured while they are jointly engaged in the same service ; there, we think, B. has no claim against the maser ; they have both en- gaged in a common service, the duties of which im- pose a certain risk upon eacji of them, and in case of negligence on the part of the other, the party in- jured knows that the negligence is that of his fellow- servant and not of his master. He knew when he was engaged in the service that he was exposed to the risk of injury, not only from his own want of skill or care, but on the part of his own fellow-servant also, and he must be supposed to have contracted on the terms that as be- tween himself and master he would run that risk. Now, applying these principles to the present case, it follows that the plaintiff has no title to recover. Hutchinson, the deceased, in the discharge of his duty as one of the servants of the company, had put himself into one of their railway carriages under the guidance of others of their servants ; and by the neglect of those other serv- 132 LIABILITV OF EMPLOYEViS, ETC. ants while they were engaged together with him in one common service the accident occurred. This was a risk which Hutchinson must be taken to have agreed to run, when he entered into the defendants' service, and for the consequences of which, therefore, they are not re- sponsible . . . The principle is, that a servant, when he engages to serve a master, undertakes, as be- tween himself and hi» master, to run all ordinary risks of the service, and this includes the risk of negligence upon the part of a fellow-servant when he is acting in the discharge of his duty as servant of him who is the common master of both. The death of Hutchinson appears, on these pleadings, to have happened while he was acting in the discharge of his duty to the defend- ants as his masters, and to have been the result of care- lessness on the part of one or more other servant or servants of the same masters while engaged in their serv- ice. And whether the death resulted from mismanage- ment of the one train or of the other, or of both, does not affect the principle ; in any case it arose from care- lessness or want of skill, the risk of which the deceased had, as between himself and the defendants, agreed to run. . . . Though we have said that a master is not responsible generally to one servant for any injury caused to him by the negligence of a fellow-servant, while acting in one common service, yet this must be taken with the qualification that the master shall have taken care not to expose his servants to unreasonable risk. The servant:, when he engages to run the risk of his service, including those arising from the negligence of fellow-servants, has a right to understand that the master has taken reasonable care to protect him from risk by associating him only with persons of ordinary skill and care; and the real object of the plea, in this FOR INJUEIES RECEIVED BY SERVANTS, ETC. 133 case, is to show that the defendants had discharged a duty, the omission to discharge which might have made them responsible to the deceased. The plea, therefore, appears not to be open to the objection insisted upon. For these reasons we are of opinion that the plaintiff has shown no ground of action, and so our judgment must be for the defendants." ^The same doctrine was very clearly enunciated by Blackburn, J., in delivering the judgment of the court, in Morgan v. The Vale of Neath Railway Co., 5 Best & S. 570; 23 L- J-> Q- B. 260; affirmed in the Ex. Ch., L. R., I Q. B. 145; 3S L. J., Q. B. 23. He says, " A servant who engages for the performance of serv- ices for compensation does, as an implied part of the con- tract, take upon himself, as between himself and his master, the natural risks and perils incident to the per- formance of such services ; the presumption of law being that compensation was adjusted accordingly, or, in other words, that those risks are considered in the wages ; and that where the nature of the service is such that, as a natural incident to that service, the person undertaking it must be exposed to risk of injury from the negligence of other servants of the same employer, this risk is one of the natural perils which the servant, by his contract, takes upon himself as between him and his master ; and consequently that he can not recover 'To the same effect: Ray v. B. and W. C. R. R. Co., 9 Cush. 112; Warner v. E. R. R. Co., 39 N. Y. 478. But a more liberal rule pre- vails in Ohio. In C/ev., C. and C. R. R. Co. v. Kearney, 3 Ohio St., a brakeman was injured through the carelessness of the conductor to whose orders he was subject ; it was held, that the company were liable for the negligence of the conductor. But see Pitts., F. W. R. R. Co. V. Devinney, 17 Ohio St. 197, where this case, if not overruled, is very much narrowed in its application. Little Miami R. R. Co. v. Stevens, 20 Ohio, 41 5 ; Mad Riv. R. R. Go. v. Barber, 5 Ohio St. 541 . 1 34 LIABILITY OF EMPLOTERS, ETC. against his master for an injury so caused, because, as is said by Shaw, C. J., in Farrell v. The Boston Railroad Corporation, 4 Metcalf^ 49 ; also printed in 3 Macqueen, H. L. Cas. 316, 'He does not stand toward him in the relation of a stranger ; but is one whose rights are reg- ulated by contract.' If the master has, by his own per- sonal negligence or malfeasance, enhanced the risk to which the servant is exposed beyond those natural risks of the employment which must be presumed to have been in contemplation when the employment was ac- cepted, as, for instance, by knowingly employing incom- petent servants, or defective machinery or the like, no defense founded on this principle can apply, for the servant does not, as an implied part of his contract, take upon himself any other risks than those naturally incident to the employment." In this case the plaint- iff was employed by the defendants as a carpenter and joiner. In the course of such employment he was en- gaged in painting an engine-shed, near which was a turn- table. The servants of the company, in the course of managing the traffic, so negligently turned a cafriage upon the turn-table that a ladder, supporting a plank upon which the plaintiff was standing, was thrown down, and the plaintiff was consequently injured; and, upon an action being brought by him against the company, it was held that he could not recover. In the foregoing case (in the Exchequer Chamber), Pollock, C. B., said, "I am only desirous to add, that it appears to me, that if we were to decide this case in favor of the plaintiff, we should open the gates to a flood of litigation. In every large manufactory, where a number of workmen are employed in different depart- ments of the same business, we should have it split up into any number of objects, although they had the FOR INJURIES RECEIVED BY SERVANTS, ETC. 135 one common purpose. Thus, in one manufactory the making of screws would be called one object, and the doing wood-work another, and so on ; and then a person employed in a superior department would be said to have nothing to do with the porter in the same estab- lishment." Upon the principle above laid down, where the de- fendants, being the contractors for large works, em- ployed M. to do part of the work by the piece for a cer- tain sum, payable by monthly installments, according to the work done, the defendants finding the tools. W., who was then in the defendants' service, was taken by M. from his work and put to assist in the piece-work at weekly wages, but in accordance with the general reg- ulations at the defendants' works. W. was paid his wages weekly by the defendants with their other work- men, and M., who, before the contract piece-work, had also been in the defendants' employment at weekly wages, drew from the defendants money in that charac- ter, the whole being charged against him and deducted from the amount of the installments when payable. W. having been killed while at work on the piece-work by the negligence of the defendants' servants, it was held, that W. and. M. were both the servants of the defend- ants, and, therefore, that the administratrix of W. could not maintain an action against the defendants for the negligence of the defendants' other servants, who were reasonably fit and competent for the service in which they were employed. Wiggett v. Fox and another, ii Ex. 832; 25 L. J., Ex. 188. In the course of deliver- ing the considered judgment of the court, Alderson, B., said, "We think that this question must be determined in favor of the defendants, and a verdict entered accord- ingly. The principle on which our opinion is founded 136 LIABILITY OF EMPLOYERS, ETC. is to be found in the case of Hutchinson v. 'The New- castle, Tork and Berwick Railway Co., 5 Ex. 343; 19 L. J., Ex. 296, and it is this — that a master is not gener- ally responsible to one serva'nt for an injury occasioned to him by the negligence of a fellow-servant while he is acting in one common service; and the reason for that in another part of the judgment is stated to be, that the servant undertakes, as between hiral and the master, to run all ordinary risks of a service, including the risk of negligence of the other servants engaged in discharging the work of their common employer. Here both serv- ants were, at the time of the injury, engaged in doing the common work of the whole contract, and for the contractors, the defendants ; and we think that the sub- contractor and all his servants must be considered as being for this purpose the servants of the defendants while engaged in doing the work, each directing and limiting his attention to the particular work necessary for the completion of the whole work; and that other- wise we should not give full effect to the principle which governs such cases which, as stated in Priestly v. Fowler, 3 Mee. & W. 6; 7 L. J., Ex. 42, mainly arose from the enormous inconvenience that would follow from holding the common employer liable under such circum- stances. Here the workman comes into the place to do the work knowingly and avowedly with others. The workman, as was suggested in Priestly v. Fowler, may, if he thinks fit, decline any service in which he appre- hend injury will result to himself; and in cases in which danger is to be apprehended, he is just as likely, and probably more so, to be acquainted with the risk he runs than the common employer. If we are to hold the defendants liable, we should be obliged to hold that every contractor, where various painters, carpenters. FOR INJURIES RECEIVED BY SERVANTS, ETC. 137 plumbers, or bricklayers, and the like, were employed in building a house, would be liable for all accidents inter se to the various workmen so employed on the common object; and, perhaps, it is even difficult to say whether it could stop there, for possibly the common employer would be made liable in such cases. If, in- deed, there were any ground for holding the person or persons whose act caused the death of the plaintiff's husband, were persons not of ordinary skill and care, the case would be different, for the defendants were certainly bound to employ persons of ordinary skill and care in the work; but there is no suggestion of this sort." ^In Searle v. Lindsay and others, ii Com. B., N. S. 429; 31 L. J., C. P. 106, the plaintiff shipped under the ordinary articles, as engineer on board the defend- ants' vessel, a screw steamer. During the voyage he was required by the chief engineer to work a winch used to raise or lower the screw of the steamer. In so doing, and without any fault of his, one of the handles of the winch came off, and he was severely injured. The han- dle ought to have been fastened on, and there was a screw on board for that purpose, but it had never been fastened, although the chief engineer had several times before the accident promised to have it done, when spoken to on the subject. Upon these facts, it was held, that the chief engineer stood in the relation of fellow-servant to the plaintiff, and that there was nothing in the above facts to take the case out of the ordinary rule of non-responsibility of a master for injury to his servant from the negligence of a fellow-servant, and consequently that the defendants were not liable for the injury to the plaintiff. 'See Wonder v. B. and O. R. R. Co., supra. 138 LIABILITY OF EMPLOYERS, ETC. In PFalkr, Administratrix^ v. ^he Southeastern Railway Co., 2 Hur. & C. 102 ; 32 L. J., Ex. 205, the deceased G. Waller was a railway guard, employed by the de-* fendants at weekly wages, and it was his duty as such guard to travel with and in the passsenger trains worked by the defendants on the North Kent Railway, a line belonging to and worked by the defendants under cer- tain powers. In the course of such duty, while he was traveling m a passenger train of the defendants, the train ran off the line and overturned the break-van in which he was, whereby he was killed. The accident happened through the decayed condition of the trenails which fastened the chains to the sleepers on the rail- way. It was the duty of the ganger of the plate-layers, a servant of the defendants, to see and keep in proper repair and condition the permanent way by renewing such trenails as were decayed. The ganger was a person of competent skill, and through his neglect of duty the road became unsafe. Waller was killed by the train running off the line through the decayed con- dition of the trenails; none of the directors, officers, or servants of the company knew of such defects, but the ganger ought to have known it, and it was negligence in him not to have known it. Upon this, "it was held, that the defendants were not liable, the deceased and the ganger being servants engaged in one common purpose. In his judgment. Pollock, C. B., said: "I think if we look at the observations of Lord Chelms- ford {Bartonshill Coal Co. v. Maguire, 3 Macq. H. L. Cas. 303), and consider what are the dangers that any servant engages to encounter, and look at the probable dangers attendant upon entering into the engagement in question, there can be no doubt that the conductor of a railway train must anticipate, among the sources FOR INJURIES RECEIVED BF SERVANTS, ETC. 139 of probable danger arising on the journey, the neglect of a servant to oil the wheels of the carriages, the neglect of one man to properly adjust the points, and the neglect of another man to take care that the rails are properly bolted and fastened and secured, so as to make the journey safe. Under these circumstances, I am of opinion, that the special case ought to be decided Jn favor of the defendants, the facts falling entirely within the case of Priestly v. Fowler, which is not opposed, as it strikes me, to any case or to any authority which has arisen out of that, the first case on the subject." The cases of Snelgrove v. The London, Brighton and South Coast Railway Co., and Gallagher v. . Piper and another, i6 Com. B., N. S. 66g; 2;^ L. J., C. P. 329, are also in point upon this subject. Erie, C. J., in giving judgment, said: "In the first case the damage was done to the plaintiff, who was employed to load trucks with ballast for the defendants the railway com- pany, and fellow-servants were employed to lay tram- plates and to shift them from time to time as the works were carried on, and the plaintiffs had to assist in push- ing the trucks along the tram-plates when so laid. Now, on the day of the accident, the tram-plates were so insecurely laid on the sleepers, and the sleepers were so far apart, that when the plaintiff pushed his truck on the tram-plates one of them started up and damaged him severely, and for that damage he brought his action against the railway company, and the question is, whether the railway company are liable ? It is clear that the plate- layer whose negligence caused the accident was a fellow- servant of the plaintiff, employed with him in the same occupation. . . . The case of Waller v. The South- eastern Railway Co. appears to me to be precisely in point. ... In the second of these cases, namely, 140 LIABILITY OF EMPLOYERS, ETC. that of Gallagher v. Piper, the plaintiff, who was a scafFolder, brought an action against the defendants, who were master-builders, for damage caused by them by reason of there being an insufficient supply of wood for the scaffolding, in consequence of which he was obliged to put his foot upon a putlog having a round surface instead of a flat board which ought to have been laid over it. If there had been a sufficient number of boards supplied, he would not have fallen from the scaf- .fold and suffered the damage of which he complained, and the want of a proper supply of boards was caused by the negligence of Phear, who was the defendants' foreman managing the works. The defendants were the master-builders to construct the work, and they appointed Phear as their manager and foreman, and Phear employed Mahoney, a master-scaffolder, to get together a gang of scaffolders, and the plaintiff was one of them. It was Phear's duty to supply the materials for the scaffolding, and he had notice of the insufficiency of the materials for the safe and proper performance of the work, and the cause of the damage sustained by the plaintiff was the omission by Phear to have a proper supply of scaffold-materials. I can not distinguish the case oiJVigmore v. Jay, 5 Ex. 354; 19 L. J., Ex. 300, from the present case. There, Wigmore was injured in consequence of the scaffolding on which he had to stand giving way, in consequence of its being supported by a putlog which was rotten. Jay was the master-builder, and he employed a foreman under him, and Jay was ignorant of the defect in the putlog, but the foreman did know of it, and was the person who was responsible for the construction of the scaffolding ; and it was held, that Jay, the master-builder, had not committed any breach of dutv by appointing an improper person as FOR INJURIES RECEIVED BF SERVANTS, ETC. 141 foreman, and as he had no knowledge of the defect in the putlog, he was not liable. That case appears to me to be in point. . . . Beyond all doubt Phear was guilty of negligence in not supplying a sufficient quantity of scaffolding materials, and so was the cause of the acci- dent to the plaintiff; but Phear and the plaintiff seem to me to be fellow-servants within the principle ofthat case, and as by the finding of the jury there was no default on the part of the defendants, either in respect of the supply of sufficient materials for the scaffolding or in respect of their appointing Phear as not being a competent man, his neglect does not throw the respon- sibility on the defendants." See also Feltham v. Eng- land, L. R., 2 Q. B. :^i, ; z^ L. J., Q. B. 14. A stranger who volunteers his services is in the same position as a servant, and a master therefore is not lia- ble for the unauthorized act of a competent servant oc- casioning injury to a person voluntarily assisting another servant in the performance of his duty.^ In Begg, Ad- ministratrix V. The Midland Railway Co., i Hur. & N. 773 ; 16 L. J., Ex. 171, the rule of law is clearly ex- plained in the judgment of the court, as delivered by Bramwell, B. He said : " The facts stated in the de- claration and the plea demurred to may be thus summed up. The defendants were possessed of a certain rail- way and carriages and engines, and their servants were at work on the railway in their service with those car- riages and engines. The deceased Degg voluntarily as- sisted some of them in their work. Other of the de- 'An engine having stopped to take in water, the fireman — the engineer being absent — requested a bay to put in the hose and turn on the water. By an accident the boy was killed. Held, that there could be norecovery against the company. Flowirs. Penn. R.R. Co., Supreme Court of Penn., Legal Op., January 27, 1872. 142 LIABILITT OF EMPLOYERS, ETC. fendants' servants were guilty of negligence about their work, and by reason thereof the deceased was killed. The defendants' servants were competent to do the work, and the defendants did not authorize the negligence. We are of opinion that, under these circumstances, the action is not maintainable. The cases show that if the deceased had been a servant of the defendants and in- jured under such circumstances as occurred here, no action would be maintainable, and it might be enough for us to say that those cases govern this ; for it seems impossible to suppose that the deceased, by volunteer- ing his services, could have any greater rights or impose any greater duties on the defendants than would have existed if he had been a hired servant. But we were pressed by an expression found in the cases, that a serv- ant undertakes, as between him and his master, to run all ordinary risks of the service, including the negli- gence of a fellow-servant, JVigget v. Fox being cited for this purpose ; and it was said there was no such under- taking here. But in truth there is as much in the one case as in the other. The consideration may not be so obvious, but it is as competent to a man to agree, and as reasonable to hold that he does agree, that if allowed to assist in the work, though not paid for it, he will take care of himself from the negligence of his fellow-work- men, as it would be if he were paid for his services. But we are also told that there was and could be no agreement; that Degg was a wrong-doer, and therefore that the action was maintainable. It certainly would be strange that the case should be better if he were a wrong- doer than if he had not been. We are of opinion that this argument can not be supported. We desire not to be understood as laying down any general proposi- tion that a wrong-doer never can maintain an action. If FOR INJURIES RECEIVED BY SERVANTS, ETC. 143 a man commit a trespass on land, the occupier is not justified in sKooting him or injuring him. If the oc- cupier were sporting or firing at a mark, on his land, and saw a trespasser and fired carelessly and hurt him, ?.n action would lie." The same position was upheld in the subsequent case of Potier v. Faulkner, 31 L. J. Q. B. 30 (Ex. Ch.)^ Erie, C. J., in delivering the judgment of the court, said : " The plaintiff had been injured by the fall of a bale of cotton ; and it appeared that one of the serv- ants of the defendant, who was employed in his ware- house, let the bale of cotton fall from it negligently ; that another of the servants of the defendant was below to receive the bale of cotton, and that Potter, the plaintiff, intervened to assist the servant below ; and that the plaintiff, so far as the master was concerned, was entirely a volunteer upon the occasion, and that he was injured by that which is found to be negligence in the servant who was above. The question is, whether Pot- ter, under these circumstances, can sue the master for the negligence of one of his servants ? It is the case of one who volunteers to associate himself with the defendant's servant in the performance of the defend- ant's work, and this without the consent or even the knowledge of the defendant. Such an one can not stand in a better position than those with whom he associates himself in respect of their master's liability. He can impose no new or greater obligations on the employer, than those to which he was subject in respect of the employed. Now, it is clear law that the master would not have been liable if the servant below had been in- jured by the negligence of the servant above. As be- tween master and servants, the duty of the master is to take care that the servants whom he hires shall be of 144 LIABILITY OF EMPLOYERS, ETC. competent skill and ordinary carefulness. When he has done that he has done his duty as between them. We are of opinion that no such duty is cast upon him as the plaintiff has contended for. We have considered the case of Degg v. The Midland Railway Co., and we are of opinion that that case has been well decided, and we affirm the principle of that judgment," The same principle was recognized in the case of Warburton v. The Great Western- Railway Co., L. R., 2 Ex. 30 ; 36 L. J., Ex. 9. Before quitting this subject, it may not be improper to draw attention to the language of Pollock, C. B., in his judgment in Vose, Administratrix v. "The Lancashire and Yorkshire Railway Co., 1 Hur. & N. 728 ; 27 L. J., Ex. 249. " I must say now (I am speaking merely my own personal private opinion), I think we ought to be extremely cautious how we relax the rule that was . laid down in this court originally, but which now is un- doubtedly the law of the land, with respect to servants in a common employ suffering by the negligence of each other. I believe there never was a more useful decision or one of greater practical and social importance in the whole history of the law. I believe it was the law — I thoroughly understood it to be so before attention was called to it; for if it had not been so, we could hardly have lived into the present century without having actions brought over and over again. No such action ever had been brought before the time when it was pro- posed to make a master liable in respect of one servant for the negligence of another. I think we ought to be exceedingly cautious how we allow what I must say I consider to be the important benefits of that decision to be fritted away by nice distinctions or to be broken in upon by the ingenuity of advocates or by the verdicts even of juries." NEGLIGENCE BY PARTICULAR PERSONS. I45 CHAPTER V. AS TO NEGLIGENCE BY PARTICULAR PERSONS Sec. I. — Attorneys. 2. — Bailees. 3. — Carriers. 4. — Inniceepers. 5. — Medical men, etc. 6. — Principal and agent. Sec. I . — Attorneys, negligence by. Every client has a right to the exercise on the part of his attorney of care and diligence in the execution of the business intrusted to him, and to a fair average amount of professional skill and knowledge ; and if attorneys have not as much of these qualities as they ought to possess, or, if having them, they have neg- lected to employ them, the law makes them responsible for the loss which has accrued to their clients from their deficiencies. Hart v. Frame., 6 CI. & Fin. 209. In that case. Lord Cottenham, C, said : " Professional men, possessed of a reasonable portion of information and skill, according to the duties which they undertake to perform, and exercising what they possess with reasonable care and diligence in the affairs of their em- ployers, certainly ought not to be held liable for errors in judgment, whether in matters of law or discretion. Every case, therefore, ought to depend upon its own 10 146 NEGLIGENCE BY PARTICULAR PERSONS. peculiar circumstances; and where an injury has been sustained which could not have arisen except from the want of such reasonable skill and diligence, or the absence of the employment of either, on the part of the attorney, the law holds him liable. In undertaking his client's business, he undertakes for the existence and for the due employment of these qualities, and receives the price of them." "It would be extremely difficult," said Tindal, C. J., in Godefroy v. Dalton, 6 Bing. 467, " to define the exact limit by which the skill and diligence which an attorney undertakes to furnish in the conduct of a cause is bounded; or to trace precisely the dividing line be- tween that reasonable skill and diligence which appears to satisfy his undertaking, and that crassa negligentia, or lata culpa, mentioned in some of the cases for which he is undoubtedly responsible. The cases, however, which have been cited and commented on at the bar, appear to establish in general that he is liable for the consequences of ignorance or non-observance of the rules of practice of the court, for the want of care in the preparation of the cause for trial, or of attendance thereon with his wit- nesses, and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession; whilst, on the other hand, he is not answerable for error in judgment upon points of new occurrence or of nice or doubtful construction, or of such as are usually submitted to men in the higher branch of the profession of the law." See Kemp V. Burt, 4 B. & Ad. 424; Bulmer v. Gilman, 4 Man. & Gr. 108. With principles so intelligible and obvious as a guide, it will^ not be necessary to refer at any length to the various instances in which it has been held that actiona- Br ATTORIfEFS. 147 ble negligence has existed, except in those where the facts have been of an unusual or a special nature ; it being always borne in mind that the question of negli- gence is one of fact for the jury, under the direction of the judge, who will explain the nature of the duty and the degree of negligence which involves responsibility. Caldwell V. Hunter^ 10 Q. B. S<^} If an attorney has any reasonable doubt as to the legal operation of a conveyance he must be careful not to draw wrong conclusions, but he should lay the facts correctly before counsel. Where, therefore, an attorney acted on the advice of counsel to whom he had mis- stated the legal effect of certain deeds which did not accompany the case, this was held to be evidence for the jury of negligence for which he was responsible. Ireson v. Pearman, 3 B. & C. 799. If he is employed to investigate the title to an estate, or to seek out an eli- gible investment, and obtain good security, for money 'The attorney is bound to execute business in his profession with a reasonable degree of care, skill, and dispatch ; and if the client be in- jured by the gross fault, negligence, or ignorance of the attorney, the latter is liable in damages. Wilson v. Russ, 20 Maine, 42 1 ; Goodman V. Walker, 30 Ala. 482 ; Gilbert v. Williams, 8 Mass. 57 ; Harter v- Morris, 18 Ohio St. 492. Attorney not liable for an error of judgment upon an open and con- troverted point of law. Morrill v. Graham, 27 Texas, 646. An attorney gave a receipt for a note, without statement of purpose for which the receipt was given, and neglected to sue upon it, by vfhich the plaintiff sustained a loss of its value. Held, defendants liable for value of note and interest. Smedesv. Ellendorf, 3 Johns. 184. An attorney who sues upon a note on the last day of grace, and does not conduct his suit according to the rules of the court, is guilty of neg- ligence. Hopping v. Quinn, 12 Wend. 517; Farnum v. Martin, 15 Pick. 440. He is also liable in damages for entering an unauthorized appearance. Field w. Giiis,'?et. C. Ct. 155. 148 NEGLIGENCE BY PARTICULAR PERSONS. advanced, and the title is obviously defective, or the security is manifestly bad or insufficient, he will be responsible in damages for negligence. Knight v. paries, 4 Moore, 532 ; 2 Bro. & B. 102 ; Whitehead v. Greetham, 10 Moore, 183 ; 2 Bing. 464; Howell y. Toung, 5 B. & C, 259. Where an attorney is employed by a mortgagee, it is not enough to investigate the title of the mortgagor, but he should see that the security is sufficient for the amount advanced ; and if he do not, he will be liable for breach of the implied duty resulting from and cast upon him by his retainer. Hayne v. Rhode, 8 Q. B. 342 ; 15 L. J., Q. B. 137 ; Dartnall v. Howard, 4 B. & C. 345 ; Craig v. IVatson, 8 Beav. 427 ; Donaldson v. Haldane, 7 CI. & Fin. 762 ; tFaine v. Kempster, i Fos. & F. 695.^ It is the diity of every attorney, by reason of the emolument he receives for the exercise of his profes- sional skill, to take care that his client does not enter into any covenant or stipulation that may expose him to a larger responsibility than the nature of the business he is instructed to transact may in the ordinary course of practice require. If the stipulations are more oner- ous in their consequences than usual, the matter should be fully explained to the client, and the usual extent of liability made known to him. Stannard v. Ullithorne, 4 Mau. & Sel. 376; 3 Bing., N. C. 235. The cases in which the negligent conduct of an attor- ney is most frequently discussed, are those in which he has been concerned in the conducting of legal proceed- (' ■ 'The rule of liability for errors of judgment as applied to conveyances ought to be the same as in the case of gentlemen in the practice of law oj medicine. Watson -v. Mairhead, 57 Penn. St. 161. BY ATTORNEYS. 149 ings. An attorney is supposed to be perfectly con- versant with the practice of the courts, and the mode of conducting a cause ; any neglect or omission, therefore, in these particulars, by which his client suffers, is an actionable wrong for which he may be made answerable. Hawkins v. Harwood, 4 Ex. 503; Bracey v. Carter, 12 Ad. & Ell. 373 ; Frankland v. Cole, 1 Cro. & Jer. 590; Godefroy v. Jay, 7 Bing. 419 ; Huntley v. Buiwer, 6 N. C. Ill ; Bracey v. Carter, 12 Ad. & Ell. 373 ; Lewis v. Samuel, 8 Q. B. 685 ; Cox v. Leach, i Com. B., N. S. 617 ; 26 L. J., C. P. 125. In Hawkins v. Harwood, 4 Ex. 506; 19 L. J., Ex. 22, in which the declaration was in assumpsit against the defendant as an attorney, for neglecting to instruct counsel to appear for the plaintiff in an action brought by the latter against a third party, the defendant pleaded that he did not neglect to instruct counsel to appear ; and upon the trial it appeared, that when the former cause was called on at the Maidstone assizes, the plaint- iff's counsel rose in court with a brief in his hand, called the attorney for the plaintiff, the present defendant, who did not appear, and afterward called the names of the witnesses, who did not answer, whereupon he withdrew the record. On the same evening, the plaintiff's at- torney arranged with the attorney on the other side to try the cause at Lewes, and the plaintiff's attorney paid all the costs incurred at Maidstone, except the sum of 13/, which Hawkins, the plaintiff, paid for the convey- ance of his witnesses. The judge was of opinion, upon these facts, that the defendant had "not instructed any counsel to appear within the meaning of the issue, and having directed the jury accordingly, they returned a verdict for 150/. Upon a rule for a new trial, or to re- duce the damages to 13/, the rule for the new trial was 150 NEGLIGENCE BY PARTICULAR PERSONS. discharged, the damages being reduced to 13/. In giving h.is judgment, Pollock, C. B., said: "The question is, whether the evidence established the allegation in the declaration that no counsel was instructed to appear ? What is the meaning of the phrase 'instructing coun- sel?' I think instructing counsel does not mean the putting into his hands a mere piece of paper, but that it means placing him in a situation with respect to in- formation and means of knowledge which shall enable him to conduct the case satisfactorily, either for the plaintiiF or the defendant. Instructing counsel means, properly instructing. If a counsel is not properly in- structed, in my opinion, he can not be said to be in- structed at all. He can not be said to be instructed if he is unable to do what he is required to do. Partial instructions are oi no use, if by the absence of any link the chain of instructions is broken. The facts of this case were, that the attorney was not present when the cause was called on ; the names of the witnesses were called, but no answer was returned. It was the duty of the attorney to be in court ; and had he been there, an application might have been made to postpone the trial, which could not be done in the absence of the attorney." An attorney, who is retained to conduct a cause, has power to enter into a compromise, provided he does it reasonably, skillfully, and bona fide. So, to a declaration in an action by a client against his attorney for negli- gently conducting the defense In an action of ejectment, whereby judgment was signed in that action against him, the defendant pleaded that the alleged grievances were sustained, by the defendant as such attorney con- senting to a judge's order (which was set out in the plea), and by which the action of ejectment was stayed on certain terms therein mentioned, and that the de- BY ATTORNEYS. I51 fendant was not bound by any directions from the plaintiff (the then defendant) not to compromise such action, and that he was, as such attorney and under and by virtue of his retainer, at liberty to conduct such action in such manner as to him should, in the exercise of reasonable skill and care, appear to be more bene- ficial to the interests of the plaintiff (the then defend- ant). There was then an averment that the defendant in consenting to such judge's order acted in good faith and exercised reasonable skill and care, and that it ap- peared to him that by so consenting he was acting in a manner most beneficial to the interests of the now plaintiff. Upon a demurrer to this plea, it was held that it was a good answer. Chown and another v. Parrotl and another, 14 Com. B., N. S. 74, 32 L. J., C. P. 197. In his judgment, Erie, C. J., says: "I think that, un- der the circumstances stated in this plea, the plaintiff's complaint can not be sustained, because the defendants were under their retainer at liberty to conduct the action in such manner as should appear to be most advan- tageous and beneficial to the interests of the plaintiffs ; and the plea undertakes to say, that by consenting to the compromise the defendants were acting, as it ap- peared to them, in a manner most advantageous and beneficial to the interests of the plaintiffs. On the point as to the authority of an attorney to com- promise an action, I think the rule of law establishes this : that a general retainer to bring or defend a suit, gives the attorney an authority to compromise it. The reason why a party to a suit is bound to the opposite party by an arrangement made by his attorney for its settlement, must be because the attorney in the suit is held out by his client as having authority to enter into 152 NEGLIGENCE BT PARTICULAR PERSONS. such agreement to compromise.^ The case of Fray v. Vowles, I Ell. & Ell. 839; 28 L. J., Q. B. 232, is con- sistent with our present decision, and may well be sus- tained, because there the attorney was expressly forbid- den to compromise the action, and that case was dealt with by the court as an exceptional case. Indeed, that case rather implies that a compromise made by the at- torney would be lawful if he were not forbidden by the client to compromise. So, also, in Prestwicb and another v. Poky, 18 Com. B., N. S. 806, reported as Prestwick and another v. Poley, 34 L. J., C. P. 189, an action was brought to recover the price of a piano, and the plaintiff's atj:orney agreed to settle the action by the return of the piano, and pay- ment of costs. It was held, that in the absence of a distinct prohibition from his client, he had authority to do'so. In his judgment in this case, Montague Smith, J., puts the question in a very forcible point of view. He says, " I am of opinion that an attorney has author- ity in all matters which may reasonably be expected to arise in a cause. The cases show that an attorney may compromise a suit; and the question is, whether this compromise Is within his authority in the suit? It seems to me that none could be more so than this. If the action had been successful, tho plaintiffs might have had execution, and the sheriff halve taken this very piano or other goods ; and the attorney, as it were, by anticipation takes it. It would be most unfortunate for clients if attorneys could not compromise. Mo- ments occur in a case when a fortunate compromise may be made, moments which may never occur again, and on the loss of which moments protracted litigation ensues. ' Sed Contra. Shaw v. Kidder.^ 2 How. Prac. 244; Holkery. Parker, 7 Cranch, 436; Huston v. Mitchell, 14 Serg. & R. 307. BT ATTORNErS. I53 I think on principle and authority the attorney might make this compromise." It must, however, be remembered that the client is the dominus Hits, and that if he have given express directions to his attorney they can not be departed from. Thus, in Fray v. Vowles, i Ell. & Ell. 839 ; 28 L. J., Q. B. 232, to a declaration in an action by a client against her attorney for consenting to an order for a stet processus, in two actions in which the client was the plaintiiF, on certain terms in the said orders mentioned "without the authority and consent, and against the will and contrary to the directions " of the client, the defendant pleaded that in entering into the said stet processus, and committing the grievances complained o^ "he acted in a reasonable, skillful, and proper manner, and in pursuance of, and in obedience to, and in accord- ance with, the advice, opinion, and discretion of certain counsel learned in the law, then retained and employed by the plaintiff, and acting as her counsel in and for the conduct, management, and direction of the actions on her behalf; and that the said order was a reasonable and proper order to be consented to and made in that behalf, and that it was essential and necessary, and beneficial to and for the protection of the plaintiff and her interests, with respect to the said actions, that the defendant should consent to the said order being made." There being a demurrer to this plea, the court held, that it was no answer to the declaration. In his judg- ment. Lord Campbell, C. J., said, " I think an attorney, who has power to conduct a cause, has power to enter into a compromise, provided he does it reasonably, and skillfully, and bona fide, and I think here the defendant may be considered to have acted reasonably, skillfully, and with bona fides, and if there had been rlo express I 154 NEOLIOENCE BY PARTICULAR PERSONS. directions to him from the plaintiff not to enter into a compromise, I think here there would have been a good . defense. But it being alleged that he had directions not to do so, and that he did so in violation of such directions, and while they were in full force, the com- promise was ultra vires, as between him and his client, though it may be binding between the client and third parties. He was not bound to carry on the suit unreasonably and absurdly and to damage his own character; but having done a positive act contrary to her directions, he has been guilty of a breach of duty, which in point of law gave her a cause of action against him."^ Sec. 2. — Bailees, negligence by. The extent of the liability of bailees for negligence depends greatly upon the character of the bailment, for as there are several descriptions of bailments, so are there several degrees of liability, slight negligence in some cases being sufficient to incur responsibility, whilst in others gross negligence alone can afford a ground 'of action.^ Upon the question generally of the liability of bailees we have the leading case of Coggs v. Bernard, Ld. Raym. 909 ; i Smith's L. C. 147. In this cele- brated decision, Lord Holt specifies with remarkable clearness the various descriptions of bailments with the liabilities as regards negligence attaching to each, namely: 'As to the damages recoverable against an attorney for negligence, whereby an actual loss is sustained by the client, see Dearborn v. Dear- born, 15 Mass. 316; Trumbull y. Nicholson, 27 111. 149; Sme'des v. Ellendorf, 3 Johns. 184. ^The distinction between the different degrees of negligence was repudiated by the United States Supreme Court in Steamboat N. W. V. King, 1 6 'How. 469. Br BAILEES. 155 I. Depositum, or a naked bailment of goods, to be kept for the use of the bailor. 2. Commodatum, where goods or chattels that are usefial are lent to the bailee gratis, to be used by him. 3. Locatio rei, where goods are lent to the bjwlee, to be used by him for hire. 4. Vadium, or pawn. 5. Locatio operis faciendi, where goods are delivered to be carried, or something is to be done about them for reward to be paid to the bailee. 6. Mandatum, a delivery of goods to somebody, who is to carry them or do something about them gratis. These divisions of the subject have ever been regarded as substantially sound, and have been the foundation of all the cases subsequently decided upon the subject, and it will be convenient, therefore, to consider them in their order. I. Depositum, or a naked bailment of goods, to be kept for the use of the bailor. In such a case the bailee is not liable for a merely common neglect, but only for gross negligence ; and it has been generally considered that if he takes as much care of the property bailed as of his own, and a loss takes place, he would not be responsible. This, however, is not a correct test, since it may be, that he has been grossly negligent even of his own property. Thus, in Doorman v. Jenkins, 2 Ad. & Ell. 256, in an action against a bailee of money intrusted to him to keep without reward, it was proved that he had given the following account of its loss, namely, that he was a coffee-house keeper, and had placed the money in his cash-box in the trap-room, which had a bar in it and was open on Sunday, though the other parts of the house were not, and out of which the cash-box was stolen upon a Sunday. The judge told the jury that it did not follow from the defendant's having lost his own money at the same time as the plaintiffs that he had taken such care of the plaintiff's 156 NEGLIGENCE BY PARTICULAR PERSONS. money as a reasonable man would ordinarily take of his own ; and, he added, that that fact afforded no answer to the action if they believed that the loss occurred from gross negligence, and the jury having returned a verdict for the plaintiff, the court refused to disturb it. See also Rooth V. Wilson, i Bar. & Aid. 59. When a loss occurs of property intrusted to a bailee, even without reward, it is for him to explain the circumstances under which it has been lost, the loss itself unexplained afford- ing the strongest presumption of neligence, Parry y. Roberts, 3 Ad. & Ell. 118; and the bailee must rebut this presumption by showing circumstances which,will excuse the loss, as, that he was forcibly robbed, or that the property was stolen without any gross neglect or willful default on his part, or that his vehicle broke down or was overturned, and that the articles were lost during the hurry, confusion, or fright of an undoubted acci- dent. Beauchamp v. Powley, i Moo. & Rob. 38 ; Nel- son V. Mackintosh, i Stark. 237.^ 2, Commodatum, where goods or chattels that are use- ful are lent to the bailee gratis, to be used by him. In this description of bailment 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 'In Foster V. The Essex Bank, 17 Mass. 479, there was a special deposit of gold in a bank, which was embezzled by the cashier ; but as there was no proof of gross negligence on the part of the bank, it was not held liable for the loss. See 2 Kent Com., sec. 560, as to when a depository is liable beyond the case of gross neglect. Story on Bail- ment. See also Smith's L. C, 6 Amer. ed., p. 416, et seq. BY BAILEES. 157 or for a month; if the bailee go northward or keep the horse above a month, if any accident happen to the horse in the northern journey or after the expiration of the month, the bailee will be chargeable ; because he has made use of the horse contrary to the trust he was lent to him under; and, it may be, if the horse had been used no otherwise than he was lent, the accident would not have befallen him. Per Holt, C. J., in Coggs v. Bernard, supra. In such a bailment the bailee is bound to use great diligence in the protection of the article bailed, and he will be responsible for even slight negli- gence. IVilson V. Brett, ii Mee. & Wei. 113. Upon such a bailment the bailee has no right to deviate from the conditions of the loan. Bringloe v. Morrice, i Mod, 210 ; 3 Salk. 271.^ 3. Locatio ret, where goods are lent to the bailee, to be used by him for hire. In this case, also, the bailee Is bound to take very great care, and to return the goods when the time of hiring is expired. The owner, indeed, must stand to all the ordinary risks to which the chattel is naturally liable, but not to risks occasioned by the negligence or want of ordinary caution of the bailee. If a horse is hired as a saddle-horse, the hirer has no right to use it in a cart, or as a beast of burden ; or if it Is hired to go to Richmond, he has no right to go with it to York ; and if during such misuser a loss occurs, the hirer will be responsible. If, however, in the course of the reasonable use of the chattel any accident occur to it, he will not be answerable, even though the best treat- ment have not been pursued, provided he shall have exercised a becoming discretion upon the subject; as if a horse hired for a journey be taken ill upon the road, 'See Howards. Babcock, 21 111. 259; 2 Kent Com., sec. 574. 158 NEGLIGENCE BY PARTICULAR PERSONS. and the bailee call in a farrier, by whose injudicious treatment the horse should die, the bailee would not be responsible ; but if, neglecting to avail himself of proper advice and assistance, the bailee choose ignorantly to prescribe himself, and from unskillfulness give the horse improper medicine, and the horse die, he would then be liable to the bailor. Deane v. Keate, 3 Camp. 4 ; Davy V. Chamberlain, 4 Esp. 229 ; Reading V. Menham, 1 Moo. & Rob. 234.1 4. Vadium, or pawn. Lord Holt remarks of this description of bailment: "In this, I shall consider two things : first, what property the pawnee has in the pawn or pledge ; and secondly, for what neglects he shall make satisfaction. As to the first, he has a special property, for a pawn is a securing to the pawnee, that he shall be repaid his debt, and to compel the pawnor to pay him. But if the pawn be such that it will be worse for using, the pawnee can not use it, as clothes, etc.; but if it be such as will never be the worse, as if jewels for the purpose were pawned to a lady, she might use them ; but then she must do it at her peril ; for whereas, if she keeps them locked up in her cabinet, if her cabinet be broken open, and the jewels taken from thence, she would be excused; if she wears them abroad, and is there robbed of them, she will be answerable. And the reason is, because the pawn is in the nature of a deposit, and as such is not liable to be used. But if the pawn be of such a nature as the pawnee is at any charge about the thing pawned to maintain it, as a horse, cow, etc., then the pawnee may use the horse in a reasonable manner, or milk the cow, etc., in recompense for the meat As to ^Har. V. Snyder, 3 Barb., N. Y. 380; Sinclair v. 'Peinon, 7 N. H. 219. BY BAILEES. 15 9 the second point. . . . If a creditor takes a pawn he is bound to restore it, upon the payment of the debt; but yet it is sufficient if the pawnee use true diligence, and he will be indemnified in so doing, and notwith- standing the loss, yet he shall resort to the pawnor for his debt. Agreeable to this is 29 Ass. 28, and South- cote s case, 4 Rep. 83. But, indeed, the reason given in Southcote s case is, because the pawnee has a special prop- erty in the pawn. But that is not the reason of the case ; and there is another reason given for it in the book of Assize, which is, indeed, the true reason of afl these cases, that the law requires nothing extraordinary of the pawnee, but only that he shall use an ordinary care for restoring the goods." ^ Under this head of bailment, the questions that most frequently arise are those connected with the business of pawnbrokers. This trade is regulated to a great extent by 39 and 40 Geo. 3, c. 99, the 24th section of which enacts : "That if in the course of any proceedings before any jus- tice or justices of the peace, in pursuance of or under this act, it shall appear or be proved to the satisfaction of the justice or justices, upon oath or solemn affirmation, that any of the goods and chattels pawned as aforesaid have been sold before the time allowed by this act, or otherwise than according to the directions of this act, or have been embezzled or lost, or are become or have been rendered of less value than the same were at the time of pawning or pledging thereof, by or through the default, neglect, or willful misbehavior of the person or persons with whom the same were so pledged or pawned, his executors, administrators, or assigns, agents or servants, then and in any such case it shall be lawful for every 'See Cortelyou v. Lansing, 2 Caines' Cas. 200; 2 Kent Com. 578. 160 NEGLIGENCE BY PARTICULAR PERSONS. such justice and justices, and he and they is and are hereby required to allow and award a reasonable satis- faction to the owner or owners of such goods or chattels in respect thereof, or of such damage," etc. Under this section it was held in Syred v. Carruthers, 27 L. J,, M. C. 273, that a pawnbroker was not liable for damage to pledges occasioned by an accidental fire, without proof of its having been caused by any default or neglect. But where valuable goods were left by the pawnbroker in his house during the night, without any person on the premises, this was held to be negligence. Healing v. Cattrell, 6 Jur., N. S. 96, n. Per Cockburn, C. J., in Shackell v. West, 29 L. J., M. C. 45. In the •last case it appeared that the pawnbroker had refused to deliver up a pledge, on the ground that a burglary had been committed upon his premises, and that it had been stolen. The burglary was alleged to have been commit- ted in. the night of the ist of May (Sunday), the, pawn- broker having left the premises without any person residing or being thereon, from the morning of that day until about nine o'clock on the following morning. In his judgment^ Cockburn, C. J., said: "It is unneces- sary to express any opinion as to whether it was satis- factorily established that the goods and premises were properly secured, because the fact that the premises were left for twenty-four hours wholly unprotected by the presence of any person on them fully justified the magistrates in finding that the pawnbroker had been guilty of negligence." 5. Locatio operis faciendi, where goods are delivered to be carried, or something is to be done about them for a reward to be paid to the bailee. ~ As this description of bailment applies chiefly to bail- ments to common carriers and to innkeepers, it will be BT CARRIERS. 161 convenient to consider it under the sections devoted to those classes of persons. (See poj/.) 6. Mandatum, a delivery of goods to somebody, who is to car;-y them or do something about them gratis. The liability under this description of bailments differs in no way from that under the first {Deposiium), to which the reader is therefore referred. In concluding this section, it will be well to quote the language of the learned editors of Smith's Leading Cases, as given in their note to Coggs v. Bernard, namely: "From the above cursory view of the law of bailments, it will be seen that, besides the six classes of bailments enumerated by Lord Holt, bailees may be distributed into three general classes, varying from one another in their degrees of responsibility. The first of these is where the bailment is for the benefit of the bailor alone; this includes the cases of mandatories and deposits, and in this the bailee is liable only for gross negligence. The second is where the bailment is for the benefit of the bailee alone; this comprises loans, and in this class the bailee is bound to the very strictest diligence. The third is where the bailment is for the benefit both of the bailor and bailee: this includes locatio rei, vadium, and locatio operis, and in this class an ordinary and average degree of diligence is sufficient to exempt the bailee from responsibility." Sec. 3. — Carriers, negligence by. As the law imposes upon common carriers duties and liabilities of an extensive and a responsible character, it will be well to ascertain at the outset what classes of persons come under that denomination. They are, then, individuals who commonly and publicly undertake for 11 162 NEGLIGENCE BY PARTICULAR PERSONS. hire to transport from place to place the goods of all persons who think fit to employ them for the purpose (provided the goods are of a kind they ordinarily re- move), and include the owners and proprietors of wag- ons, barges, lighters, merchant ships, stage-coaches, rail- ways, and such other carriages for the public conveyance of goods.^ A person who conveys passengers only is not a common carrier. Aston v . Heaven, i Esp. 533; Sharp V. Grey, 9 Bing. 460. Neither is a town carman who does not ply from one fixed terminus to^another, but undertakes casual jobs, or a wharfinger, cab proprie- tor, hackney coach proprietor, omnibus proprietor, or ferryman.^ If p. man profess to be a common carrier of passen- gers merely, and only receives occasionally, and at his own option, some trifling articles of luggage with such passenger, to be carried gratuitously for the accommo- dation of the latter, he can not be charged as a common carrier of goods for the loss of them. He is in such a case a gratuitous bailee of the goods, and chargeable only with the liabilities and responsibilities of a person who gratuitously undertakes to carry goods for another. Such is an omnibus proprietor who professes only to carry passengers and receives his hire solely therefor, but occasionally receives and carries gratuitously small bundles and parcels for the accommodation of his pas- sengers. As he does not profess to carry goods for hire, he can not be compelled to receive them as a common carrier of goods, neither can he be charged except as a gratuitous bailee for the loss of them. If, however, the carrier or coach proprietor profess to carry both passen- ' Gordon v. Hutchinson, I Watts & Serg. 285. '' But see Sanders v. Young, i Head. 219. BV CARRTERS. IQ^ gers and luggage, he is clothed, as regards the conveyance of the luggage, with the obligations and responsibilities of a common carrier of goods for hire, whether the hire is paid by the passenger or by some other person on his behalf or for his benefit. Brooke v. Pickwick, 4 Bing. a 1 8 ; Marshall v. The York, Newcastle and Berwick Rail- way Co., II Com. B. 655; 21 L. J., C. P. 24; Addison on Torts, ch. 10, s. i. Every person who comes under the denomination of a common carrier is bound to accept and carry indif- ferently for all the Queen's subjects who are ready and willing to pay his customary and reasonable charges, provided he has room for the purpose, all such descrip- tions of goods as he publicly professes himself willing to carry ; and when once his character of a common carrier is established, it follows, as a legal consequence, that he is an insurer of the goods intrusted to him to carry, and for which he is responsible in all events with the sole exceptions of loss or damage by the act of God, or the Queen's enemies. With reference to this very extensive measure of re- sponsibility. Lord Holt, in Coggs v. Bernard, observes: "The law charges this person thus intrusted to carry goods against all events but acts of God, and of the enemies of the king. For though the force be never so great, as if an irresistible multitude of peopje should rob him, nevertheless he is chargeable. And this is a politic establishment contrived by the policy of the law for the' safety of all persons, the necessity of whose affairs oblige them to trust these sorts of people that they may be safe in their ways of dealing ; for else these carriers might have an opportunity of undoing all per- sons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine 164 NE9LTGENCE BY PARTICULAR PERSONS. manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." As it is the purpose of this treatise to consider alone the liability of parties for negligence, it will not be ex- pected that the rights and duties of common carriers should be further considered than is necessary to eluci- date that liability.^ At common law a common carrier is an insurer in all cases, except in those of loss or damage by the act of God, or the Queen's enemies. As regards the immunity from liability for injury arising from the act of God, — such damages are to be included as arise from such un- controllable phenomena as, without being necessarily either supernatural or preternatural, arise from such an interruption of the ordinary course of nature, as a pru- dent and an honest man can not reasonably be expected to provide against or anticipate.^ By inevitable acci- dent, commonly called the act of God, is meant any accident produced by any physical cause which is irre- sistible; such as a loss by lightning or storms, by the perils of the sea, by an inundation or earthquake, or by sudden death or illness. Story on Bailments, sec. 25. Lord Mansfield defined the act of God to mean "some- thing in opposition to the act of man," such as "could not happen by the intervention of man, as storms, '"He is answerable for all losses which do not fall within the ex^ cepted cases of the act of God (meaning inevitable accident without the intervention of man) and public enemies." 2 Kent Com., sec. 598; Fisb V. Chapman, z Kelly (Geo.), 349; Merritt v. Earle, 31 Barb. (N. Y.) 39. ''In case of a loss of which the proximate cause is the act of God, or the public enemy, the common carrier is excused, though his own negligence or laches may have contributed as a remote cause. Railroad Co. V. Reeves, 10 Wall. 176; Morrison v. Davis i^ Co., 20 Penn. St. 171 ; Denny v. N. r. C. R. R. Co., 13 Gray, 481. Br CARRIERS. 165 lightning, tempests." Forward v* Pittard, i Term Rep. 22 ; Powell on Carriers, ch. 6.^ Respecting the immunity from liability where the loss arises from the Queen's enemies — these must be under- stood as the inhabitants of a country with which this realm happens to be at war, and the exemption does not extend to losses sustained at the hands of ordinary rob- bers or other criminals of this country, except in the case of pirates, who (as it is said) being the enemies of all mankind, are upon the footing of the commonly understood enemies of the queen. In Palmer v. Naylor and others, 8 Ex. 739; 23 L. J., Ex. 327, it was held, that a robbery by a crew, who murdered their captain, was an act of piracy, within the meaning of a policy of insurance against piracy.^ If the consignor has been guilty of any fraud or un- fair concealment of facts toward the carrier, so that his risk has thereby been increased, the latter will not be liable. As, where a man hid a hundred pounds of money in some hay in an old nail bag, and delivered it ^The words "act of God" mean a disaster with^ which human agency has nothing to do — such as lightning, tfimpests, tornadoes, squalls, etc. Mc Arthur £5f Hulbertw. Sears, 21 Wend. 190; Colt v. McMuhen, 6 Johns. 160; King v. Shepherd, 3 Story C. C. 349. ^The receipt of an express company set forth that it had been ex- pressly agreed that the company should not be "liable for any loss or damage . . . iioia the enemies of the government . . ^ or any of the dangers incident to a time of war" The rebellion was in progress at the time. There were two routes by which the company used to con- vey their property. They conveyed the property — a bag of gold dust — the cause of the present suit — by the most expeditious, but the more dangerous route of the two. A band of armed men robbed the carrier of the property. Held, liable for the property, as the express com- pany had been guilty of actual negligence in selecting a hazardous in preference to a safe route. Express Co. v. Kountze, 8 Wal. 342. 166 NEGLIGENCE BT PARTICULAR PERSONS. to a common carrier to be carried to a banker, and the money was lost, it was held, that the carrier was not re- sponsible for the loss, as the consignor had neglected to inform him of'the exceeding value of the bag, and had thereby prevented him from taking proper care of it. Gibbon v. Paynton, 4 Burr. 2298. Again, where the consignor concealed a quantity of guineas in an ordinary brown paper parcel tied with a string {Clay v. Willan, 1 H. Bla. 298), and a number of sovereigns in a packet of tea {Bradley v. Waterhouse, 3 C. & P. 318), and several hundred pounds' worth of bank-notes and gold in an ordinary school-boy's box, and the money so sent was lost by the way — it was held, that the carrier was not responsible for the loss. Batson v. Donovan, 4 B. & Aid. 37 ; Mayhew v. Eames, 3 B. & C. 601. See also Bradley v. Waterhouse, Moo.'& Mai. 154. "If," says Lord Mansfield, in Gibbon v. Paynton {supra), "the owner of the goods has been guilty of a fraud upon the carrier, such fraud ought to excuse the carrier."^ A bare concealment, however, of the contents of a package, or even a distinct refusal to disclose its con- tents, will not absolve the carrier from liability. In Walker v. Jackson, 10 Mee. & Wei. 168, Parke, B., said : " I take it now to be perfectly well understood, according to the majority of opinions upon the subject, that if anything is delivered to a person to be carried, it is the duty of the person receiving it to ask such questions about it as are necessary ; if he ask no ques- tions and there be no fraud to give the case a false com- plexion in the delivery of the parcel, he is bound to 'The common carrier must be treated in good faith, and any con- cealment, artifice, or suppression of the truth will relieve him from lia- bility. American Express Co. v. Perkins, 42 111. 458; Phillips v. Earle, 8 Pick. 182. BF GARRTERS. 167 carry the parcel as it is. It is the duty of the person who receives it to ask questions ; if they are answered improperly so as to deceive him, then there is no con- tract between the parties ; it is a fraud which vitiates the contract altogether." It must not, however, be sup- posed that if the consignor refuse to disclose the con- tents of a package, the carrier is either absolved from responsibility for negligence or can refuse to carry it. Crouch V. I'/ie London and Northwestern Railway Co., 14 Com. B. 255 ; 23 L. J., C. P. 73. To render a carrier liable for the loss of goods, it must be affirmatively shown that they were delivered to and accepted by him ; and if a delivery and an accept- tance have been duly made, the carrier's liability com- mences from that moment. In such a case the delivery to an authorized agent is of course sufficient, and if any question arise as to th? actual delivery or fhe author- ity to accept, it is one for the decision of a jury. Griffith V. Lee, i C. &. P. i lo ; Ingate v. Christie, 3 Car. & Kir. 61 ; jigger v. Duff, i Mee. & Wei. 174; Selway v. HoUoway, i Ld. Raym. 46 ; Gilbert v. Dale, 5 Ad. & Ell. 543. Upon this subject the 5th section of 11 Geo. 4, and I Will. 4, c. 68 (the Carriers' Act), enacts : "That for the purpose of this act every office, warehouse, or receiving house which shall be used or appointed by any mail contractor, or stage-coach proprietor, or other such common carrier as aforesaid for the receiving of parcels to be conveyed as aforesaid, shall be deemed and taken to be the receiving house, warehouse, or office of such mail contractor, stage-coach proprietor, or other common carrier ; and that any one or more of such mail contractors, stage-coach proprietors, or common carriers shall be liable to be sued by his, her, or their name or 168 NEGLIGENCE BY PARTICULAR PERSONS. names only ; and that no action or suit commenced to recover damages for loss or injury to any parcel, pack- age, or person shall abate for the want of joining any co- proprietor or copartner in such mail, stage-coach, or other public conveyance by land for hire as aforesaid." Under this section it has been held, that an inn where a book is kept for booking parcels by a particular coach, which stops regularly there to take in and deliver par- cels, is a receiving house for parcels, although other coaches stop at the same inn for the same purpose, and the innkeeper sends the parcel by which coach he pleases. Symes v. Chaplin, 5 Ad. & Ell. 634 ; Davey v. Mason, Cr., Mee. & Ro. 45. Where the plaintiff gave a parcel directed to F., in London, to the postmaster at B., who drove a mail-cart between B. and M,, and the post- master booked it at M., at an inn where the defend- ant's coach stopped to take in parcels, and received the carriage for it to M. from the innkeeper, who was in the habit of booking parcels for the defendant's coach, and did book this parcel to London, and delivered it to the coachman of the defendant : it was held, that the post- master was the agent of the plaintiff, and the innkeeper the servant of the defendant, and therefore, that the plaintiff might recover damages from the latter for the loss of the parcel, Symes v. Chaplin, supra. Where the booking office keeper carries on a distinct occupation, and merely undertakes to deliver parcels to carriers, his contract is only to deliver safely to a carrier, and not to the consignee. In an action, therefore, against such a party, where the declaration alleged that a parcel was delivered to the defendant, and that he promised to take cai-e of it that it might be forwarded to its destination, and averred that it was lost through his negligence- it was held, not sufficient evidence of negli- BF CARRIERS. 169 gence to show that the parcel was delivered to the de- fendant, and that it had not reached its destination, but that some evidence should be given showing specifically a breach of his duty. Gilbert v. Dale, 5 Ad. & Ell. 543- As a great number of the cases which have been de- cided upon the liability of common carriers turn upon the proper construction of the Carriers' Act, 1 1 Geo. 4 and I Will. 4, c. 68, and the Railway and Canal Traffic Act, 17 and 18 Vict., c. 31, it will be advisable, before pursuing this subject further, to call attention to such of the sections of these statutes as will hereafter be referred to in the decisions of the courts. The Carriers' Act, 11. Geo. 4 and i Will. 4, c. 68 : Sec. I. "That from and after the passing of this act no mail contractor, stage-coach proprietor, or other common carrier by land for hire, shall be liable for the loss of or injury to any article or articles of property of the description following, that is to say : gold or silver coin of the realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewelry, watches, clocks, or time-pieces of any description, trinkets, bills, notes of the governor and company of the banks of England, Scotland, and Ireland respectively, or of any other bank of Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign stamps, maps, writings, title deeds, paintings, engravings, pictures, gold or silver plate, or plated arti- cles, glass, china, silks in a manufactured or unmanu- factured state, and whether wrought up or not wrought up with other materials, furs or lace, or any of them contained in any parcel or package, which shall have 170 NEGLIGENCE BY PARTIGTILAR PERSONS. been delivered either to be carried for hire or to accom- pany the person of any passenger in any mail or stage- coach or other public conveyance, when the value of such article or articles, or property aforesaid, contained in such parcel or package shall exceed the sum of ten pounds, unless at the time of the delivery thereof at the office, warehouse, or receiving house of such mail contractor, stage-coach proprietor, or other common carrier, or to his, her, or their book-keeper, coachman, or other servant for the purpose of being carried or of accompanying the person of any passenger as aforesaid, the value and nature of such article or articles, or prop- erty, shall have been declared by the person or persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package." (By 28 and 29 Vict., c. 94, s, i, it is enacted, that the term "lace" shall not include machine-made lace.) Sec. 2. " That when any parcel or package containing any of the articles above specified shall be so delivered and its value and contents declared as aforesaid, and such value shall exceed the sum of ten pounds, it shall be lawful for such mail contractors, stage-coach proprie- tors, and other common carriers to demand and receive an increased rate of charge to be notified by some notice affixed in legible characters in some public and con- spicuous part of the office, warehouse, or other receiving house, where such parcels or packages are received by them, for the purpose of conveyance, stating the increased rates of charges required to be paid over and above the ordinary rate of carriage, as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles; and all persons sending or Br CARRIERS. 171 delivering parcels or packages containing such valuable articles as aforesaid, at such office, shall be bound by- such notice without further proof of the same having come to their knowledge. Sec. 3. "Provided always, that when the value shall have been so declared and the increased rate of charge paid, or an engagement to pay the same shall have been accepted as hereinbefore mentioned, the person receiving such increased rate of charge, or accepting such agree- ment, shall, if thereto required, sign a receipt for the package or parcel, acknowledging the same to have been insured, which receipt shall not be liable to any stamp duty ; and if such receipt shall not be given when re- quired, or such notice as aforesaid shall not have been affixed, the mail contractor, stage-coach proprietor, or other common carrier as aforesaid, shall not have or be entitled to any benefit or advantage under this act, but shall be liable and responsible as at common law, and be liable to refund the increased rate of charge." Sec. 4 enacts, that such carriers shall be liable as at common law for all articles not specified as above, " any public notice or declaration by them made and given contrary thereto or in anywise limiting such liability notwithstanding. Sec. 5 enacts, what shall be deemed to be a receiving house. This section has already been given at length at page 1 67. Sec. 6 provides, that nothing in the act shall extend to, annul, or in anywise affect any special contract between the parties. Sec. 7 provides, for the recovering back of the extra charge when the property is lost or damaged. Sec. 8 enacts, " That nothing in this act shall be deemed to protect any mail contractor, stage-coach pro- 172 NEGLIGENCE BY PARTICULAR PERSONS. prietor, or other common carrier for hire from liability to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coach- man, guard, book-keeper, porter, or other servant in his or their employ, nor to protect any such coachman, guard, book-keeper, or other servant from liability for any loss or injury occasioned by his or their own per- sonal neglect or misconduct." Sec. 9 enacts, that carriers shall be liable only to such damages as are proved. Sec. lo provides for paying money into court. The Railway and Canal Traffic Act, 1854 (17 and 18 Vict., c. 31) : Sec. 2 makes provision for insuring the impartial management of the traffic of railways and canals, so that equal facilities should be affiarded to all persons in the transmission of goods. Sees. 3, 4, 5, and 6 constitute the machinery whereby that impartial management may be enforced. Sec. 7 enacts, that " Every such company as aforesaid shall be liable for the loss of or for any injury done to the horses, cattle, or other animals, or to any articles, goods or things in the receiving, forwarding, or deliv- ering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto or in anywise limiting such liability ; every such notice, condition, or declaration being hereby declared to be null and void: provided, always, that nothing herein contained shall be construed to prevent the said companies from making such condi- tions with respect to the receiving, forwarding, and delivering of any of the said animals, articles, goods, or Br CARRIERS. I73 things as shall be adjudged by the cr i rt or judge before whom any question relating thereto shall be tried to be just and reasonable: provided, always, that no greater damages shall be recovered for the loss of or for any injury done to any of such animals beyond the sums hereinafter mentioned ; that is to say, for any horse, fifty pounds ; for any neat cattle, per head, fifteen pounds ; for any sheep or pigs, per head, two pounds ; unless the person sending or delivering the same to such company shall at the time of such delivery have de- clared them to be respectively of higher value than as above mentioned ; in which case it shall be lawful for such company to demand and receive by way of com- pensation for the increased risk and care thereby occa- sioned a reasonable percentage upon the excess of the value so declared above the respective sums so limited as aforesaid, and which shall be paid in addition to the ordinary rate of charge; and such percentage or increased rate of charge shall be notified in the manner prescribed in the statute eleventh George the Fourth and first William the Fourth, chapter sixty-eight, and shall be binding upon such company in the manner therein men- tioned : provided, also, that the proof of the value of such animals, articles, goods and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensation for such loss or injury : provided, also, that no special contract between such company and any other parties respecting the receiving, forwarding, or delivering of any animals, articles, goods, or things as aforesaid shall be binding upon or affect any such party unless the same be signed by him or by the person delivering such animals, articles, goods, or things respectively for carriage: provided, also, that nothing herein contained shall alter or affect the rights, 174 NEGLIGENCE BY PARTICULAR PERSONS. privileges, or liabilities of any such company under the said act of the eleventh George the Fourth and first William the Fourth, chapter sixty-eight, with respect to articles of the descriptions mentioned in the said act." As regards the general effect of the Carriers' Act, Mr. Chitty, in his work on Contracts, clearly explains the subject. He says: i. That it relates solely to carriers by land. i. That it extends to the particular articles enumerated, even although they do not come within the words of the preamble as being articles " of great value in small compass," but that a parcel containing such articles is within the act only in case their aggregate value exceeds lol. 3. That it exempts the carrier from his common law responsibility as to such goods only, in the event of his affixing a public and conspicuous notice in his receiving office, notifying the extra charge for car- , rying such valuable articles; or where there is a special contract. 4. That if such notice be so affixed the carrier is not responsible for the loss of any goods of the description mentioned, even although it be not seen by the consignor or owner ; unless the value and nature of the goods be declared and the increased rate of charge for carriage be paid to or an agreement to pay it be accepted by the carrier ; or unless the loss be occasioned by the -felonious act of some servant in his employ. And on this branch of the statute it has been held: first, that to entitle a party to recover for the loss of or for any injury to such articles, he must give express notice to the carrier of the value and nature thereof; secondly, that where a common carrier enters into a sub- contract with other parties with respect to the carriage of goods which he has undertaken to carry, the servants employed by the latter are "servants in the employ" of the carrier, within the true meaning of the statute Br CAIiRlERS. 175 {Machin v. The London and Southwestern Railway Co., i Ex. 415) ; and, thirdly, that in cases within the act, if the value of the goods be not declared, and the vendor do not pay or engage to pay the increased charge, the carrier is not liable for their loss, although it happen by t\\e gross negligence of his servants; at all events unless such negligence amount to a misfeasance. Hinton v. Dibdin, 1 Q. B. 646. If, however, the carrier refuse on demand to give a receipt for the goods and extra charge, this will deprive him of the protection of the act. 5. That as to all goods not specifically mentioned in the act, and as to goods of the description therein mentioned, when the value of the latter is not above 10/., the car- rier's common law liability remains, even although such notice be given, or any public notice or declaration be made or given by the carrier with the intention of limiting his liability with reference thereto. 6. That the act does not preclude the parties from entering into a special con- tract as to the conveyance of goods of any description or value. And the law on this part of the subject would seem to be : first, that although the mere fact of giving a public notice can not be deemed to constitute a special contract for this purpose, yet if the jury find that a ticket containing such notice was in fact delivered to the con- signor or his agent, that will be sufficient to limit the responsibility of the carrier, without their also finding that such ticket was read over and explained to the party to whom it was delivered {Palmer v. The Grand Junction Railway Co., 4 Mee. & Wei. 749) ; and secondiy, that notwithstanding there may be evidence of a special con - tract between the carrier and the consignee, the former will still be liable {ox gross negligence {Wylde v. Pickford, 8 Mee. & Wei. 443) ; as, if he omit to forward the goods [Garnett v. Willan, 5 B. & Aid. 61 j ; or if he forward • 176 NEGLIGENCE BT PARTICULAR PERSONS. them by another coach or conveyance than that agreed upon [Skat V. Fagg, 5 B. & Aid. 342) ; or send them beyond their place of destination {Bodenham v. Bennett, 4 Price, 31) ; or by an unusual route [Davis v. Garrett, 4 Bing. 716; Lyon v. Mills, 5 East, 428; Bradley v. Waterhouse^ Moo. & Mai. 154). 7. It seems that if the loss or injury be o.ccasioned by \iS\t. -personal neglect or misconduct of the coachman, guard, book-keeper, or other servant of the carrier, in a case in which the carrier him- self is not responsible, such coachman, etc., maybe sued by the owner of the goods for the consequent damage. And lastly, the words of the statute being, that in the cases therein mentioned the carrier shall not be liable "/or the loss of or injury to goods" unless their value is declared and an increased rate of charge paid or agreed to be paid for the carriage thereof; this would seem to leave it open to question whether, if the carrier accepts goods for the purpose of carrying them, he may not be liable for refusing to perform that contract, although the goods were of the description mentioned in the, statute, and the owner neglected to insure them accord- ing thereto ; provided, that is, the action was not brought to recover damages for the loss of or any injury to the goods, but merely the damages occasioned by the carrier's misfeasance, as for the loss of the market or the like. Black v. Baxendale, i Ex. 410. This statute does not protect carriers in all cases where the owner of goods sustains damage from the carrier's neglect, the loss referred to being confined to those cases where the article is lost or abstracted from the personal care of the carrier, as where the damage arises from a detention or delay' in delivering the goods [Ream v. 'The London and Southwestern Railway Co., 10 Ex. 793; '24 L. J., Ex. 180; Butt V. The Great Western Br CARRIERS. 177 Railway Co., 11 Com. B. 140), or the felonious act of the servants of the carrier. The Great Western Railway Co. V. Rimell, 18 Com. B. 575; 27 L. J., C. P. 201 ; Metcalf V. The London, Brighton and South Coast Railway Co., 4 Com. B., N. S. 307 ; 27 L. J., C. P. 205. If no notice has been published as required by the second section, the carrier is not protected, even though no declaration of value has been made, nor if the carrier declines to demand any increased rate. Where the plaintiff sent a valuable picture by a railway, and de- clared its nature and value at the tin^e of its delivery to the carrier, who made no demand of any additional rate, and only the ordinary charge was paid, the carrier was held not to be protected by the statute from his common law liability for an injury which happened to the picture on its journey. Behrens v. The Great Northern Rail- way Co., 7 Hur. & N. 950; 31 L. J., Ex. 299 (Ex. Ch.) In pronouncing the judgment of the Exchequer Chamber, Wightman, J., said: "We think that the respondent, having declared the value of the picture to the carman, who was the agent of the appellants, and who received the same to be carried by them, was entitled, upon the loss of it by the appellants, to recover the value, although he did not pay or offer to pay any increased rate in proportion to the value, no such pay- ment having been required either at the time of delivery to the carman or at any time before the loss. The case of Baxendale V. Hart, 6 Ex. 788; 21 L. J., Ex. 123, decides that in such a case as the present the person delivering the goods to the carrier must, in the first instance, declare the value in order to fix the carrier with responsibility, and the carrier may then require him to pay an increased rate of charge according to a tariff put up in the office. But there is nothing in the statute *^ 12 178 NEGLIGENCE BY PARTICULAR PERSONS. which protects him from liability if, after the value is declared to be such as would entitle him to demand an increased rate of charge, he chooses to accept the goods to be carried without making any demand of such in- creased rate, or requiring it to be either paid or promised. The carrier is not bound to accept such goods for carriage without payment of such increased rate, if required ; but if he chooses to do so, and the value is declared, he will not be protected by the act." See Owen v. Burnett, 4 Tyr. 133, where the plaintiff had not declared the value of the article. The provision in the first section of the Carriers' Act, with reference to the giving of public notice, does not restrict the parties from limiting their liability by a contract, and if such a contract can be ascertained, as having been entered into expressly or impliedly, the rights of the parties will be governed by it. In Walker V. The Tork and North Midland Railway Co., 1 Ell. & Bla. 750; 23 L. J., Q. B. 73, the defendants were common carriers, who had sent round notices to various fishmongers that they would only carry fish on certain terms therein specified. Such a notice had befen 'feerved on the plaintiff some time previously to his delivery of fish to the defendants ; but after he had received it he had expressly declared to the defendants that he did not hold it to be binding on him. Subsequently he sent fish to be carried by the defendants which incurred damage, for which the defendants would have been liable at common law, but for which they contended they were irresponsible on the express terms of the notice. Coleridge, J., left it to the jury to say, first, v/hether the notice had been served on the plaintiff; secondly, whether a special contract existed between the plaintiff and 'the company that the fish should be BY CARRIERS. 179 carried on the terms stated in the notice ? and he directed them, that if the plaintiff had been served with the notice, and afterward sent the fish by the com- pany's railway, they ought to infer an agreement on the plaintifFs part to the terms, unless there was shown an unambiguous refusal by the plaintiff to be bound and an acquiescence in that refusal on the part of the com- pany. The jury having found a verdict for the defend- ants, the court discharged a rule for a new trial, on the ground of misdirection. In his judgment, Lord Camp- bell, C. J., said : " It is contended that, since the Carriers' Act, by giving notice in this case there can be no special contract between the carrier and the owner of the goods. But I think the act has no such intention or operation. A carrier may still enter into a special con- tract for the carriage of goods, and what we are to con- sider here is, whether or not there is any special contract between the parties." See also PFy/d v. Pickford, 8 Mee. & Wei. 443 ; Great Northern Railway Co. v. Morville, 21 L. J., Q. B. 319; Phillips V. Edwards, 3 Hur. & N. 8i3;a8L. J., Ex.52; Wilton v. The Royal Atlantic Mail, etc., Co., 10 Com. B., N. S. 453; 30 L. J., C. P. 369 ; Zunz V. The Southeastern Railway Co., L. R., 4 Q. B. 539;38 L. J., Q. B. 209.^ The liability of the carrier continues until delivery, but whether or not he is bound to deliver at the residence of the consignee depends upon the circum- ^A common carrier, by special contract' with the owner of goods intrusted to him, may so far restrict his common law liability as to exonerate himself from losses arising from causes over which he had no control, and to which his own fault or negligence in no way contributed But he can not, by such stipulation, relieve himself from responsibility 1 But not by general notice. Davidson v. Graham, 2 Ohio St. 131. A merp oken or baggage check is not such a contract. Blossom v. Dodd, 43 N. Y. 264. 180 NEGLIGENCE BY PARTICtLAR PERSONS. Stances of each particular case. In the absence, how- ever, of any express contract or usage carriers by land are bound to deliver the goods to or at the house o/ the consignee, whether or not they are bound to deliver, they are unquestionably obligated to send notice to persons to whom goods are directed of the arrival of those goods within a reasonable time, and they must take special care that the goods are delivered to the right person.^ Golden v. Manning, i W. Bla. 916; Shaw v. The York and North Midland Railway Co., 13 Q. B. 347 ; Chippindale v. ^he Lancashire and Tor ks hire Railway Qo., 15 Jurist, 1 106 ; Hyde v. Trent and Mersey Naviga- tion Co., 5 T. R. 389. As the duty of a common carrier is safely and securely to convey and deliver, his responsibility does not cease until the goods are delivered in the usual and ordinary course of delivery. Some difficulty frequently arises in ascertaining when the delivery can be said to have taken place. In each case the question must be determined by ascertaining, if possible, what was the express or implied contract.^ for losses caused by his own negligence. Graham v. Davis, 4 Ohio St. 362; 98 Mass. 239^ New Jersey S. N. Co. v. Mechanics' Bank, 6 How. U. S. 344 ; Ash v. The Penn. R. R. Co., 4 Dutcher, 1 80 ; Judson v. W. R. R. Co., 9 Allen; Fish v. Chapman, 2 Kelly, 251 ; Slocum v. Fairchild, 7 Hill, 292; 63 Penn. St. 14. Although it seems that there is no objection in principle to allowing the parties to contract for a relaxation of the vigilance and responsibility imposed upon the common carrier by the common law. Farmers and Mechanics Bank v. Chan. T. Co., 23 Vt. 1 86. 'See Gillaume v. Sam. and Am. P. Co., 42 N. Y. 212. 'Unless there is some well-established and notorious usage or custom to the contrary presumed to be known to the consignee, only actual delivery or notice will release the responsibility of the carrier for the goods. See Chickering v. Fowler, 4 Pick 371 ; Cole v. Goodwin, 19 Wend. 251 ; Fisk v. Newton, I Dennis, 45; Baldwin v. Am. Ex. Co., 23 111. 197. Safe delivery to the consignee being the prima facie BF CARRIERS. Igl In Richards v. The London, Brighton and South Coast Railway Co., 7 Com. B. 839, it appeared that the plaintiff's wife, as a passenger, had intrusted her lug- gage to a company's porter, who had placed her other luggage in the van, but put her dressing-case under her seat in the carriage. On arriving at the terminus, the company's servants had placed, as she thought, all her luggage in a hackney-coach close to the platform ; but it appeared subsequently that the dressing-case was missing, and that it had not been placed in the hackney- coach. The court supported a verdict for the plaintiff, on the ground that, according to the course of the com- pany's business, there was no complete delivery to the plaintifFs wife until the company's servant had placed the dressing-case in the hackney-coach. If, however, the passenger voluntarily takes charge of his own lug- gage, the carrier will not be responsible. In the last- named case, Wilde, C. J., said : " There is nothing more common than for persons to put part of their luggage into the same carriage with them ; and that may be done under such circumstances as never to cast any responsi- bility on the carrier, but that must be proved. When this is done by the company's servants, the company are not relieved from their liability as carriers in respect of it. So, a passenger taking a valuable article openly and notoriously into the same carriage in which he trav- els will not save the company from responsibility. The case is quite different from that of goods which are about the person of a passenger, which are to be considered entirely under his personal control and custody. In that case there is no delivery to or acceptance by the duty of all carriers of goods. Bartktt v. Steamboat Phil., 32 Miss. 'i^; Marshall s. Am. Ex. Co., 7 Wis. I. 1 82 NEGLIGENCE BY PARTICULAR PERSONS. company. Acceptance by the cpmpany is the legal result of goods placed in their hands in the ordinary way in which they consent to receive them." So, in Butcher v. The London and South Wales Railway Co., \6 Com. B. 13; 24 L. J., C. P. 137. In that case the plaintiff on entering a railway carriage had his port- manteau placed in the luggage-van, but kept with him the whole journey a small hand-bag containing money and valuables worth 240/. When the train arrived at the terminus the plaintiff got out on the platform with the bag in his hand, a company's servant then inquired of him whether he should get him a cab, and on receiv- ing an affirmative reply he took the bag, and, as he stated, subsequently placed it on the foot-board of the cab which he had engaged. When, however, the plaintiff (who had remained to take care of his portmanteau) got there, he found that the bag had disappeared, and the driver denied that it had ever been put on the cab. It also appeared to be the usual course for the company's servants to assist gratuitously in removing passengers' luggage from the trains to the authorized cabs in attend- ance, of which the cab in which plaintiff got was one. The jury found generally for the plaintiff, and the court held, that there was evidence to support the verdict. See also Le Couteur v. The London and Southwestern Rail- way Co., L. R., I Q. B. 54; 25 L. J., Q. B. 40. By all railways passengers are permitted to take a cer- tain weight of luggage, and by most of them this luggage is confined to that which is of a. personal as distinguished from that which is of a merchantable description ; where, therefore, in such a case a passenger carries merchandise as personal luggage the company will not be liable for its loss. "If," says Cockburn, C. J., in Cahill v. The London and Northwestern Railway Co., 13 Com. B., N. S. BV CARSIERS, 183 8i8; 31 L. J., C. p. 271, Ex. Ch., "a railway com- pany, which by the terms of its regulations allows a passenger to take personal luggagej chooses to take as luggage that which it knows to be merchandise, I agree that it does not lie in the mouth of the compahy if an article be lost, to say that they will be exempt from lia- bility, on the ground of the article being merchandise and not luggage. On the other hand, if a passenger who knows that he is only entitled to take personal lug- gage takes merchandise, he can not afterward claim to be compensated in respect of its loss by the company to w hom he has given no notice of the contents of his pack- age. The question comes to this, was there knowledge on the part of the company that that which the passen- ger was taking with him as luggage was in fact merchan- dise ? What was said by Lord Wensleydale, in fhe Great Northern Railway Co. v. Shepherd, 8 Ex. 30; 9 L. J., Ex. 286, is in perfect conformity with the view which we now take of the question. The point is, whether we can from the facts stated come to the conclusion that there was knowledge on the part of the company, that is, of the company's servants, that this box was mer- chandise ? I do not see my way to that conclusion. It is true that it had a semblance as of merchandise and was marked 'glass.' But persons often take with them very curious packages and mark them glass to protect them from injury. Probably the porter never thought about it at all. It is not found by the jury that the company's servants knew that it was merchandise; and I do not think that we ought to arrive at the inference that they knew it, as a fair and legitimate conclusion from the facts stated in the case." In the foregoing case the plaintiff, who was the traveler of Mr. Rimmell, t^e perfumer of London, traveled by the defendants' 184 NEGLIGENCE BY PARTICULAR PERSONS. railway from Northampton to London. He took with him a box about three feet long, eighteen inches wide, and twelve inches deep, and two other packages. The box was covered with a black leather case, and had painted on the top of it the name "Mr. Rimmell," in large white letters, and also had painted across the top on each end the word " glass." It contained samples of perfumery arid other articles sold by Mr. Rimmell. On his arrival af the Northampton station the box was given to one of the defendants' porters on duty at the station. No question was asked by any of the com- pany's servants about the box, nor was any demand made for payment for the carriage of it. The plaintiff did not give any information as to its contents. The porter took it, placed it with the other luggage, and it traveled safe to the junction at Blisworth, where the line from Northampton joins the main line of the defendants* railway. The luggage from Northampton was taken out at Blisworth, in order to be put into the train for London. On the arrival of the train at London the box could not be found, and had never since been heard of. The plaintiff's luggiage, including the box, was under the weight allowed by the company. Upon an action being brought a verdict was taken for the plaintiff, sub- ject to a special case. In the case of The Great North- ern Railway Co. v. Shepherd, 8 Ex. 30; ai L. J., Ex. 286, the same point was decided. In that case, the plaintiff in the court below was journeying by an excur- sion train, and had with him goods which were not per- sonal luggage but merchandise. As to what constitutes personal luggage, no very certain definition has as yet been given.^ In the above ' " But by baggage we are to understand such articles of necessity or fiersonal convenience as are usually carried by passengers for their per- BT CARRIERS. 185 / / cited case of The Great Northern Railway Co. v. Shepherd Parke, B., remarked, " That the term 'luggage,' accord- ing to the true modern doctrine on the subject, com- prises clothing and such articles as a traveler usually carries with him for his personal convenience ; perhaps even a small present, or a book for the journey, might be included in the term, but certainly not merchandise, or materials bought for the purpose of being manufac- tured and sold at a profit." And in Hudston v. The Midland Railway Co., L. B., 4 Q. B. 366 ; 38 L. J., Q. B. 213, Lush, J., said: "It is extremely difficult to frame a definition of what is 'personal luggage,' which embraces everything which can come within the meaning of the words, or which is not excluded by them. I can not say that I am satisfied with any of the definitions which are given in the books which have been referred to. Those definitions were quite good enough for the occasions upon which they were given, but none of them seem to me to be perfect. It would sonal use and not merchandise, or other valuables, although carried in the trunks of passengers, which are not designed for any such use, but for other purposes, such as a sale and the like." Story on Bailments, sec. 499. A large sum of money, viz : Si 1,250, is not within the term baggage. Orange Co. Bank v. Brown, 9 Wend. Nor is a trunk containing merchandise baggage. Pardee v. Drew, 25 Wend. 459. Nor a package of money, §4,000, kept in the sole custody of the passenger, and carried, without notice to the defendant, for purposes unconnected with the expenses of the journey. First National Bank of Greenfield -v. Marietta and Cincinnati R. R. Co., 20 Ohio St. 261. But a gold watch is part of personal baggage. 10 Ohio, 145. So are a gun and fishing tackle. 6 Hill's N. Y. 589. And a pair of pistols. Woods v. Devin, 13 111. 746 ; 111. Cent. R. R. Co. v. Copeland, 24 111. 352. And a reasonable amount of money. 19 Wend. 534. ]86 NEGLIGENCE BY PARTICULAR PERSONS. be very difficult, perhaps impossible, to frame a defini- tion which would be suitable in any possible exigency, but I think that the interpretation put upon the rule by the company is not wide enough, for they contend that 'personal luggage' applies only to luggage which is carried by the passenger for his own use, and is personal to himself But I do certainly think, that any one using the words 'personal luggage' would mean more than is included by this description. It is also to be observed that the statute uses the words ' ordinary lug- gage,' meaning a class of articles which are ordinarily carried by passengers as luggage ; so that we may con- strue the rule by the aid of this description, for the company would take it into account when they were considering what was the description of goods, for the carriage of which the passenger had paid when he had taken his ticket, and they would have regard to the usual habits of passengers. Now the article in ques- tion, although called a child's toy, can not to my mind come within this description. It can not be considered as a mere toy, which suggests something which may be carried in the hand different from a sort of rocking-horse weigingyS lbs. and 44 inches in length."^ ' The plaintiffs in error, a railroad corporation in Missouri, undertook the transportation of two companies of United States artillery troops, their baggage, camp equipments, arms, munitions, and other property; the latter being placed in a separate car, selected by the commanding officer, and loaded by the men under his command. A surgeon in the army, the plaintiff below, accompanied them, and his baggage and other property was placed in the car with the arms and munitions of war. In a suit to recover for the loss of the same, the court held : That the surgical instruments of a surgeon in the army traveling with troops may properly be regarded as part of his baggage ; but not an unpublished treatise on veterinary surgery, nor jewelry. But it appeared that a portion of the property carried by the railroad com- BY CARRIERS. jgir The personal luggage must be that of the actual traveler, and not of a person not really engaged upon the journey. In Becker v. The Great Eastern Railway Co., L. R., 5 Q. B. 241 ; 29 L- J-, Q- B. 122, it ap- peared that the plaintiff and a party of friends arranged to go from London to Newmarket, for the purpose of attending the races there, and they took a man-servant of one of the party to attend on them in common during their stay at Newmarket. On the last day of the races the servant being about to return by an early train on the defendants' line, and the plaintiff being desirous of returning later in the day, he intrusted his portmanteau and its contents with the servant, with directions to take it up to London with him. The plaintiff gave the servant a sovereign for his attention during his stay at Newmarket, The servant accordingly proceeded to the defendants' station at Newmarket, and obtained from the defendants and duly paid them for a ticket from Newmarket to London. The servant delivered over the portmanteau with its contents and his own luggage, as well as that of the other gentlemen, to the servants of the defendant, at the Newmarket station, as his ordinary luggage, and the same was received by the defendants as ordinary luggage, for the purpose of being carried by the pany embraced buffalo robes, hair mattresses, pillows, tables, statu- ary, and pictures. And the court held, as to this property, that " where a railroad company receives for transportation, in cars which accom- pany its passenger trains, property of this character, in relation to which no fraud or concealment is practiced or attempted upon its em- ployes, it must be considered to assume with reference to it, the lia- bility of common carriers of merchandise." And that its value was properly included in the amount of damages for which the railroad company were liable. H. and St. J. R. R. Ca. v. Swift, Sup. Court of U. S., 5 Amer. L. T. 70. 188 NEGLIGENCE BY PARTICULAR PERSONS. defendants as carriers, with the servant on his journey. The servant was carried by the defendants to London, but the portmanteau and its contents were lost during the journey by default of the defendants. The plaintiff himself proceeded from Newmarket to London by a later train by the defendants' railway on the same day, and he also duly obtained and paid the defendants for his ticket for such journey, and took no luggage with him. By the special act of the defendants, every pas^ senger traveling upon their railways may take with him his ordinary luggage not exceeding lao lbs. in weight for a first-class passenger, lOO lbs. in weight for a second-class passenger, and 60 lbs. in weight for a third-class passenger, without any charge being made for its carriage. The baggage taken with the servant was delivered to the company as not exceeding the weight he was allowed to take, and was not weighed. Upon these facts coming before the court, upon a special case, it was held, that the company were not liable. -In his judgment, Mellor, J., said: "We are not satisfied that this action can not be maintained. There can Ije no doubt but that the portmanteau was received by the company as the luggage of the servant, and that he was regarded by them as an ordinary passenger. It is un- necessary to say that the case where a man says ' this' i^ not my luggage but my master's,' may give rise to dif- ferent considerations. But here there is nothing of the kind; the person with whom they legally contracted was the servant, and the only duty which is imposed upon them is founded on their contract with them." So, too. Lush, J., observed: "The company are in this position : they are bound by law to receive a cer- tain quantity of the luggage of each passenger by their railway. But if they had known that the luggage was BY CARRIERS. 189 not the luggage of the servant, they would have known that they were not bound to receive it, and they would probably have refused it. There is no evidence of any duty on the part of the company except that which is founded upon their contract, and the only person with whom they contracted was the servant." As common carriers are bound to carry, so are they bound to deliver goods within a reasonable time, having regard to all the circumstances of the case. " The duty to deliver within a reasonable time is a term grafted by legal implication upon a promise or duty to deliver gen- erally." Per Tindal, C. J., in Raphael v. Pickford, 5 Man. & Gr. 558. This duty was well explained by the learned judjes in Taylor v. The Great Northern Railway Co., L. R., I C. P. 385; The Great Northern Railway Co. V. Taylor, 35 L. J., C. P. 210, S. C. In his judg- ment, Erie, C. J., said: "The action was brought against the Great Northern Railway Company for not delivering goods within a reasonable time, and the train which conveyed the goods was delayed between Hitchin and London, by reason of a break-down of a train of the Midland Railway Company which had running powers, concurrently with the Great Northern Company, over the part of the line between Hitchin and London. The judge has found rightly, as I think, that the con- tract was to deliver goods sent from the north in Lon- don within a reasonable time. I think that the duty which the law imposes upon a common carrier to deliver the goods safely has nothing to do with the time for de- livery ; the time at which he is to deliver is part of the contract. I think that a carrier, using all reasonable diligence to get goods to their destination, would fulfill his duty to deliver them within a reasonable time." Byles, J., also, observed : " The first duty of a com- 190 NEGLIGENCE BY PARTICULAR PERSONS. mon carrier is safely and securely to carry ; and the next, to deliver ; and it is impossible to deny that this must be within a reasonable time, otherwise he might take twelve months about it. ... A carrier is not bound to deliver within the usual time, but within a reasonable time, looking at all the circumstances of the case. I was much struck by the illustration put by Mr. Cave. In approaching a crossing, suppose the servants of the company, in charge of a train, see a wagon and four horses in the act of crossing the railway. If they wait to allow them to get out of the way, they will be behind their ordinary time. Are they to break the first duty of a carrier, namely, to carry safely, and ren- der themselves liable for a collision ? Their duty clearly is to be behind their ordinary time." Montague Smith, J., said : " No doubt a common carrier is an in- surer, to the extent that the goods shall be delivered safely and securely, but there is no authority for hold- ing that he insures their arrival at any particular time, or according to any usual course of delivery. He is bound to deliver them within a reasonable time, and the usual course of delivery would in most cases be prima facie evidence of what is a reasonable time ; but it must depend on all the circumstances of the particular trans- action, as to what is a reasonable time. His duty is to convey the goods within a reasonable time without un- necessary delay ; but it may be necessary, in order safely to deliver, to make or delay, or even to deviate, and if the delay or deviation are necessary for that purpose, then delay or deviation may be incurred, and the de- livery of the goods may be retarded without any respon- sibility being cast on the carrier to make good the loss occasioned by the delay." See also Raphael v. Pickford, 5 Man. & Gr. 551. Br CARSIERS. 191 In this particular the carrier is bound to carry by the route which he holds forth, and which he professes to be his route ; and when he carries goods by that route, he is bound to deliver within a reasonable time, having of course reference to the route by which he is carrying. " I think," said Blackburn, J., in Hales v. The London and Northwestern Railway Co., 4 Best & S. 66 ; 32 L. J., Q. B. 292, " It is no breach on the part of the carrier if he does not carry by a shorter route, if that shorter route is not the route which he (professes to follow. If the customer wishes to go by some other route he should ask ; and then he can choose whether he will send by the carrier, or make a special bargain. But when he sends by the usual route the carrier must use reasonable diligence ; and whether he has done so or not is a question for the jury." See'^Briddon v. The Great Northern Railway Co., 28 L. J., Ex. 51. If the consignee of goods is not ready to receive them at the place of delivery, the carrier must keep them a reasonable time, if he has a convenient place of deposit, and if he has no place of deposit, he must deal with them as any reasonable prudent person might be expected to deal with his own property. In Hudson v. Baxendale, 2 Hur. & N. 575 ; 27 L.J. Ex. <)2>^ Bram- well, B., explains the duty of a carrier, when a consignee declines to receive a consignment. He says : " With respect to the main question, it appears to me that Mr. HoU puts it on right ground. He says, when a parcel is tendered for delivery and refused, it is the duty of the carrier to conduct himself reasonably with respect to it. I am inclined to think that is the right ground on which to put it. I do not say that any duty is im- posed on the carrier. I am by no means clear that he would not be warranted in leaving it in a convenient 192 NEGLIGENCE BY PARTICULAR PERSONS. place for the consignee to take, I doubt very much whether the consignee has a right to impose the burden on him of taking care of goods, because the consignee or consignor has not done his duty by them. But assuming that he retains possession of them, and it is to be taken that he does so to secure his lien, he is bound to conduct himself reasonably with respect to them. It is said that reasonable conduct inevitably includes this — that the consignor should be told the consignee refuses to accept them, I wholly deny that that is so ; but I do not say that there might not be cases where it would be collected from the mode in which the parties have dealt before, that one man may take upon himself such a duty ; but to lay down any general abstract prop- osition that a carrier, when the consignee has refused to receive, is bound to give notice to the consignee, seems utterly unfounded." In the subsequent case of Crouch v. 'The Great Western Railway Co., 3 Hur. & N. 183; 27 L. J., Ex. 345, the Court of Exchequer Chamber more fully explained the law upon the subject. In that case the plaintiff sent a parcel by the defendants from Paddington to Plymouth. The consignee (the plaintifFs agent) refused to pay the charge for carriage, and the parcel was not delivered. The next day the consignee applied for the parcel, and offered to pay the charge under protest; but the parcel had that morning been sent back to Paddington, where it remained until the commencement of the action, the plaintiff making no application to have it returned to him, nor did the defendants offer it to him. To an action for not carrying and delivering the parcel at Plymouth, with a count in trover, the defendants pleaded to the first count, that the plaintiff refused to pay the reasonable charge for carriage, and that, there- BV CARRIERS. I93 fore, they refused to deliver ; to the second count they pleaded not guilty. The plaintiff replied to the plea to the first count, that within a reasonable time after the offer to deliver the parcel, the plaintiff at Plymouth was ready and willing to receive it, and offered to pay for the carriage, but the defendants refused to deliver it at Plymouth. The jury found that the tender of the price, and the demand of the parcel, was made within a reasonable time after the offer to deliver it by the defendants; and that the parcel was sent back to London before a reasonable time had elapsed, and that the parcel ought not to have been sent back to London. In his judgment, Crompton, J., said : " It was, I think, an unjustifiable act on the part of the defendants (as we must now take it, after the finding of the jury), in an unreasonable time to send the goods to London, which must be taken after the finding of the jury to have been an unreasonable place. It may be too much to say that a carrier can not in any possible case send a parcel back; but certainly it is very much^too strong to say that in every case a carrier can send the parcel back to the consignor on a refusal to pay for the carriage. I think the jury were well warranted (and I should have myself come to the same conclusion) in finding that it was a wrongful act under the circumstances for the defendants to send the goods back to the place and at the time they did." So, too, Willes, J., said: "When the parcel was refused at the end of the line, they were entitled to retain it in respect of their lien ; but they might if they had chosen have delivered the parcel, trusting to their action for the recovery of the proper sum for carriage. They did not think proper to do so, but retained it, and retaining it, it appears to me they were not entitled to dispose of it as they thought proper 13 194 NEGLIGENCE BY PARTICULAR PERSONS. themselves. They could not have sent it to any foreign port ; they could not have sent it to any part of the kingdom, where it would be expensive and troublesome for the plaintiff to go and receive it. I think that these are plain propositions. If so, there must be in effect some duty imposed upon them by law, and that duty is to take reasonable care of a parcel, and to deal with it in respect of time and place in a reasonable manner. I entirely agree with what was laid down by the Court of Exchequer in the case of Hudson v. Baxendale. That appears to me to have been the true view of the case, and, generally speaking, dealing with a parcel under such circumstances in a reasonable man- ner, and keeping it in a reasonable place, would impose upon the carrier the duty of keeping it for a reasonable time, if he had the means of doing it at the place at which it was originally delivered to be carried to." If the carrier has fulfilled his duty by delivering the goods to the consignee his liability as such carrier is at an end, although from the goods remaining still in his possession he may take upon himself a liability in another character ; and it not unfrequently occurs that where the consignee is not prepared at once to receive the consignment, it remains still upon the pr'emises and in the care of the carrier, until arrangements have been made for its removal. In such cases the character of common carrier will be changed into that of ware- houseman, and so a very different measure of liability will be imposed upon him. In Garside v. The Pro- prietors of the Trent and Mersey Navigation, 4 Term Rep. 581, the plaintiff, wanting to .send goods from A. to C, hired the defendants as common carriers to carry them to an intermediate stage B., and the defendants also agreed to warehouse the goods without charge at BY CARRIEliS. I95 B. until they could be delivered on to the C. carrier. At B., the goods were accidentally burned while they were so warehoused, and before there was any oppor- tunity of delivering them to the C. carrier ; and it was held, that the liability of the defendants as carriers and insurers had ended on the arrival of the goods at -B., and that their liability as warehousemen was a totally distinct liability; and moreover, as the warehousing was gratuitous and for the convenience of the plaintiffs, they were not liable in the absence of negligence.^ See also Cairns v. Robbins, 8 Mee. & Wei. 263 ; Randleson v. Murray, 8 Ad. & Ell, 109. Thus also, where goods intrusted to a railway company having been tendered by them for delivery at the address of the consignees were refused acceptance, and the company thereupon took them back to their own premises, and they then (in accordance with their practice under such circum- stances) sent an advice note to the consignee's address by post, stating that the goods remained at the risk of the consignees and would be delivered to the person producing the note, and they subsequently delivered the goods to a person who had formerly been in the service of the consignees, and who having obtained the advice note fraudulently produced it at the company's premises ; it was held, that upon the goods being returned on the company's hands their duty as carriers 1 Thomas v. Boston and P. R. R. Corp., 10 Met. 472, following Garside v. Prop. Trent and M. iV., 4 T. R. 581, decided, tliat a railroad corporation, after transporting goods over their road, and depositing them in the warehouse without charge, was not liable as a common carrier, but simply as a depositary for want of ordinary care. Norway P. Co. V. B. and M. R. R. Co., i Gray, 263 ; McCariy v. N. T. and E. R. R. Co., 30 Penn. 247. But see Moses v. B. and M. R. R. Co., 32 N. Hamp. 523. 196 NEGLIGENCE BY PARTICULAR PERSONS. was at an end, and they became involuntary bailees ; and that in an action brought against them by the con- signors for misdelivery and conversion, it was a question of fact whether they had acted under the circumstances with due and reasonable care and diligence. Heugh and another v. The London and Northwestern Railway Co., L. R., 5 Ex. 51 ; 39 L. J., Ex. 48. In his judgment, Kelly, C. B., said: "It is true that, as a matter of law, a delivery to the wrong person by a carrier while he is still clothed with the character of carrier has been held to amount to a conversion. But in this case the character had ceased when the delivery complained of took place ; and whatever may have been the character which had then devolved upon the defendants, it cer- tainly was not the character of carriers." See the case of Van "Tollv. The Southeastern Railway Co., 12 Com. B., N. S. 75 ; 31 L. J., C. P. 241, where it was held, that a railway company in receiving articles for safe custody in their cloak room do not do so in the char- acter of common carriers ; also Shepherd v. The Bristol and Exeter Railway Co., L. R., 37 Ex. 189; 3 L. J., Ex. 1 13. Although, however, the transit of the goods may be at an end, the retention of the goods may still be in the character of common carriers. Thus, in the case of Hyde v. 'The Trent and Mersey Navigation Co., 5 Term Rep. 389, the defendants as common carriers undertook to carry the plaintiff's goods from A. to C, and the plaintiff knew that in the transit the goods would neces- sarily pass through B., and be warehoused there ; and that beyond B. the defendants were merely acting as agents for third persons, to whom they were accounta- ble for the profits of the carriage beyond B. The goods on their safe arrival at B. were put by the defendants in Br CARRIERS. 197 the warehouse of one of such third parties, and they became accidentally burnt. Upon these facts the de- fendants were held to be liable, on the ground that as there had been originally one payment for the whole distance, there was one indivisible contract and con- tinuing liability on the part of the defendants to deliver safely at C. When- the delivery to the consignee is beyond the limits of the carrier's transit, his liability may either terminate with a delivery over to a carrier authorized to forward on, or it may be prolonged up to the moment when the goods are delivered to the consignee. But, in the absence of an agreement to the contrary, if a carrier receive goods which are addressed to a place beyond the terminus of his transit he will be liable beyond such terminus, and up to the time when they ought to be delivered at the ulterior and ultimate point.^ See Muschamp v. The Lancaster and Preston Junction Railway Co., 8 Mee. & W. 42 1 ; Scothorn v. The South Staffordshire Railway Co., 8 Ex. 341; 22 L. J., Ex. 120; Crouch v. The Great Western Railway Co., 23 L. J., C. P. 73 ; Wilby V. The West Cornwall Railway Co., 2 Hur. & N. 703 ; 27 L. J., Ex. 181. It has been already seen, that by sec. 7 of the Railway and Canal Traffic Act, 1854, 17 and 18 Vict., c. 31, it is provided, that nothing therein contained shall be construed to prevent any railway or canal company from 1 Quimby v. Vanderbilt, 17 N. Y. 306; ///. Cent. R. R. v. Copeland, 24 111. 332. Bat see Farmers and Mech. Bank v. Champlain T. Co., 23 Ver. 186; Nutting v. Conn. River R. R., 1 Gray, 502- The owner of goods who has employed an expressman may also sue the carrier employed by the latter to transport the goods. Neai Jersey Steam Nav. Co. v. Mech. Bank, 6 How. U. S. 344; Sanderson v. Lam- berton, 6 Binney, 129; Stoddard y. Long Isl.R. R. Co., 5 Sandford, 180. 198 NEGLIGENCE BT PARTICULAR PERSONS. making such conditions with respect to the receiving, forwarding, and delivering of any animals, goods, or things as shall be adjudged by the court or judge, before whom any question relating thereto shall be tried, to be just and reasonable. Upon this provision many cases have been decided, but as from its very nature, acting as it necessarily does upon varieties of facts very dissimilar in their natures, no very obvious principle can be de- duced, and as very great division and diversity of opin- ion have existed amongst thejudges, it will be sufficient here merely to direct attention to the names of the cases and the reports in which they are to be found, with this observation, that in Peek v. The North Staffordshire Rail- road Co., lo Ho. of L. Cas. 473 ; 32 L. J., Q. B. 241, decided upon appeal in the year 1863, Mr. Justice Blackburn, in delivering his opinion to the House of Lords, very carefully refers to and explains all the then decided cases upon the subject. See Wise v. The Great Western Railway Co., i Hur. & N. 63 ; 25 L. J., Ex. 258 ; Simons v. The Great Western Railway Co., 18 Com. B. 805; 26 L. J., C. P. 25 ; Pardington v. The South Wales Railway Co., i Hur. & N. 392 ; 26 L. J., Ex. 105; McManus V. The Lancashire and Torkshire Railway Co., 4 Hur. and N. 327; 28 L. J., Ex. 353; Beat v. The South Devon Railway Co., 5 Hur. and N. 875 ; 29 L. J., Ex. 441 ; Peek v. The North Staffordshire Railway Co., 10 Ho. of L. Cas. 473 ; 32 L. J., Q. B. 241 ; Jllday V. The Great Western Railway Co., 5 Best & S. 903 5 34 L. J., Q. B. 5 ; Lord v. The Midland Railway Co., L. R., 2 C. P. 339; 2,(> L. J., C. P. 170; Roothv.. The Northeastern Railway Co., L. R., 2 Ex. 173 ; 36 L. J., Ex. 83. The 7th section of the Railway and Canal Traffic Act, 1854, provides for a limitation as to damages for Br INNKEEPERS. 199 the loss or injury to certain animals ; namely, for any horse, not more than 50/. ; for any neat cattle, per head, not more than 15/.; for any sheep or pigs, per head, not more than 2/. ; unless the person sending or deliv- ering the same to the company shall at the time of the delivery have declared them to be of higher value, (See ante, 174.) In the earlier portions of this treatise will be found most of the cases decided with reference to the liability of carriers for negligence to passengers. Sec. 4. — Innkeepers, negligence hy. By the common law of England a common innkeeper is responsible for the loss of the goods or money of a traveler who is his guest, whenever that loss is not occa- sioned by the default of the traveler himself, the act of God, or the Queen's enemies. As this liability has its foundation entirely in the fact that the house is a com- mon inn, it will be well at the outset to ascertain what are the incidents which are necessary to constitute a house one of that designation. Every person who makes it his business to entertain travelers and passengers, and provide lodging and nec- essaries for them and their horses and attendants, is a common innkeeper.^ Parker v. Flint, 12 Mod. 255. In Thompson v. Lacey, 3 Bar, & Aid. 283, Best, J., said : "An inn is a house, the. owner of which holds out that 1 '' A public house of entertainment for all who choose to visit it, is the true definition of an inn." Wintermute v. Clarke, 5 Sandf N. Y. 242; Taylor v. Monnot, 4 Duer, 116; Willard v. Reinhardt, 2 E. D. Smith, 148. See Piatt v. Hibbard, 7 Cowen, 497, for a discussion of the liability of an innkeeper and other bailees for reward. 200 NEGLIGENCE BT PARTICULAR PERSONS. he will receive all travelers and sojourners who are willing to pay a price adequate to the sort of accommo- dation provided, and who come in a condition in which they are fit to be received. ... In this case the defendant does not charge as a mere lodging-house keeper, by the week or month, but for the number of nights. A lodging-house keeper, on the other hand, makes a contract with every man that comes ; whereas an innkeeper is bound, without making any special con- tract, to provide lodging and entertainment at a reason- able price." In the above case it was held, that a house of public entertainment in London, where beds, pro- visions, etc., are furnished for all persons paying for the same, but which was -merely called a tavern and coffee- house, and was not frequented by stage-coaches and wagons from the country, and which had no stables belonging to it, was to be considered an inn, and the owner subject to the liabilities of innkeepers. If, how- ever, a person merely opens a house for the sale of pro- visions and refreshments, and does not profess to furnish beds and lodging for the night, he is not a common inn- keeper. Doe v. Laming, 4 Camp. 77. So, if he only profess to let private lodgings, and does not offer his house to the public at large as a place of reception and entertainment for all comers who are able and willing to pay for the accommodation, he will not come within the description of a common innkeeper.^ If, however, an individual fulfills the character of an innkeeper, the legal duty is cast upon him of protecting the goods of his guests. But this duty is subject to some limitations. Thus, 'As to the difference between the innkeeper's responsibility to his guests and to his boarders, see Manning v. Wells, 9 Hump. 746- Kisten v. Hildebrand, 9 B. Mon. 72 ; Willard v. Reinhardt, sttpra. Br INNKEEPERS. 201 the innkeeper is not bound to provide greater accom- modation than his premises naturally afford : for if he has only a stable he is not compellable to receive a car- riage, and if he professes to receive only the ordinary luggage of a traveler, he is under no obligation to take in articles of unusual or inconvenient bulk, nor such as do not ordinarily accompany the person of a guest, such as a piano. ^ Broadwood v. Granara, lo Ex. 423 ; 24 L. J., Ex. I. So, if the inn be full, and upon the inn- keeper declining to receive a traveler on that account, the latter should agree to make shift amongst the other guests and should be robbed, the innkeeper would not be liable. TVhite's case. Dyer, 158 b. Also, if the guest takes upon himself the exclusive charge of the goods which he brings into the inn. Farnworth v. Pack- wood, I Stark. 249. In that case Lord Ellenborough said : " I agree in what is stated in Calye's case, 8 Coke, 32; Smith's Leading Cases, that the mere delivery of the key of a room will not dispense with the care and attention due from the landlord, and that he can not ex- onerate himself by merely handing a key over to his guest ; but if the guest take the key, it is a very proper question for the jury, whether he takes it animo custodiendi and for the purpose of exempting the landlord from his liability, or whether he takes it merely because the landlord forced it upon him, or for the sake of securing greater privacy in order to prevent persons from intruding themselves into his room." Neither will the innkeeper be liable if the loss has been occa- sioned by the gross negligence of the guest ; as, where the latter left a box containing money in the commer- cial room, after having opened and exposed its contents to the bystanders,and it was afterward stolen, Armistead, V. Wilde, 17 Q. B. 261 ; and where, also, the guest. 202 NEGLIGENCE B7 PARTIGVLAR PERSONS. having taken a private room for the purpose of exhibit- ing goods for sale, and received customers and invited the admission of strangers, upon whose ingress and egress the latter had no check, and having left the door unlocked his goods were stolen, the innkeeper was held not to be responsible. Burgess v. Clements, 4 Mau. & Sel, 306. In cases of negligence by the guest, the question for the jury is, whether the loss would or would not have happened if the guest had used the or- dinary care that may reasonably be expected from a pru- dent man ? Cashillv. Wright, 6 Ell. & Bla. 891. Although an innkeeper is not an insurer of the goods of his guest, he is, nevertheless, liable in every case of loss or damage not occasioned by the guest's negligence.^ In Morgan v. Ravey and another, 6 Hur. & N. 265; 30 L. J., Ex. 131, it appeared that the plaintiff was, on the 14th of December, 1859, a guest at the Great Northern Hotel, London, and was shown a bedroom, in which was hung up a notice, which he admitted that he had seen but denied he had read, in these words : " Several robberies having taken place during the night in the principal hotels in London, the proprietor requests vis- itors to use the night-bolt ; and money, jewelry, or ar- ticles of value, are requested to be left at the bar, other- wise he will not hold himself responsible for any loss." The plaintiff had with him a gold watch and chain, silver snuiF-box, a ring, a pencil-case and some gold and silver money. He did not leave any of these arti- 'Nor is he liable for the loss of his guest's goods by a fire which happened without any fault of himself or servants. Merritt v. Clag- horn, 23 Vt. 177. But where an inn was burglariously entered, the bar-keeper overcome by force, and the property carried off by rob- bers, the innkeeper was held liable for the loss. Mateer v. Brczun i Cal. ZZ2 ; Mason v. Thompson, 9 Pick. 280. BF INNKEEPERS. 203 cles at the bar, according to the notice, but kept them in his bedroom. The door of his bedroom had lock and bolt ; he locked the door but did not draw the bolt, giving as a reason that he did not understand the way it worked. Early in the morning the valuables were found missing, though the key was still in the lock inside. Upon a verdict being returned for the plaintiff, a rule nisi was obtained, on the ground [infer alia) that the notice qualified the liability, and that the judge mis- directed the jury in not telling them that if there was no negligence on the part of the innkeeper he was not liable. Upon the argument of the rule it was discharged. In a considered jndgment. Pollock, C. B., said: " The objection was, that it was assumed that the defendant was liable if there was no negligence on the part of the plaintiff, and therefore the defendant would be liable, not only for negligence, but for want of due diligence, which, we think, is the law. It is true that the ex- pression in the forms in tort is, that the right was 'per defectum,' that is, for the default of the innkeeper ; but, we think, the cases show there is default in the innkeeper whenever there is a loss not arising from the plaintiff's negligehce, the act of God, or the Queen's enemies. The only case which points the other way is that of Dawson v. Chamney, 5 Q. B. 164, and, according to the report of that case in 7 Jurist, 1037, there was no evi- dence of the manner in which the horse received the injury for which the action was brought ; and this may be the explanation of that case, for though the damage happening to the horse from what occurred in the stable might be evidence of default or neglect, still it was not shown how the damage arose, and it was not even shown that it arose from what occurred in the stable. It might have arisen from something that had occurred long 204 NEGLIGENCE BY PARTIGVLAR PERSONS. prior to the horse being put into the custody of the innkeeper. That would distinguish this case and recon- cile all the cases with the general current of authority," In the case referred to of Dawson v. Chamney, in the foregoing judgment, it had been held, that an innkeeper was not responsible for injuries which the horses of guests inflict upon each other in the stables of an inn, provided he has taken all due care to prevent the intro- duction into the stables of vicious and kicking horses. The innkeepei; remains liable for the safety of his guest'3 property, although at the time of the loss the guest may have left the inn, if for a temporary absence only, although extending over several days.^ Baker v. Day, 1 Hur & C. 14; 32 L. J., Ex. 171. As regards the subject of the general liability of inkeepers, see Calye's case, 8 Rep. 32 ; i Smith's Leading Cases. The very extensive liability of innkeepers has been somewhat limited by 26 and 27 Vict., c. 41 (" An Act to amend the law relating to the liability of inn- keepers, and to prevent certain frauds upon them"), which enacts as follows : " I. "No innkeeper shall, after the passing of this act, be liable to make good to any guest of such innkeeper any loss of or injury to goods or property brought to his inn, not being a horse or other live animal, or any gear appertaining thereto, or any carriage to a greater ^And where an innkeeper gave notice that he would furnish all pas- sengers with free transit from the railroad depot to his house, he was held liable for baggage lost or stolen on the way. Dkkerson v. Win- chester, 4 Cush. 119. ''Similar statutes are in force in most of the States, restricting tne liability of the innkeeper, if he provide a safe for the deposit of the guest's valuables, and post a notice to that effect in each of the rooms. B Y INNKEEPERS. 205 amount than the sum of thirty pounds, except in the following cases, that is to say : (i.) " Where such goods or property shall have been stolen, lost, or injured, through the willful act, default, or neglect of such innkeeper, or any servant in his em- ploy : (2.) " Where such goods or property shall have been deposited for safe custody with such innkeeper: Pro- vided always, that, in the case of such deposit, it shall be lawful for such innkeeper if he think fit to require as a condition of his liability that such goods or property shall be deposited in a box or other receptacle, fastened and sealed by the person depositing the same. 2. "If any innkeeper shall refuse to receive for safe custody, as before mentioned, any goods or property of his guest, or if any such guest shall, through any default of such innkeeper, be unable to deposit such goods or property as aforesaid, such innkeeper shall not be en- titled to the benefit of this act in respect of such goods or property. 3. " Ev^ry innkeeper shall cause at least one copy of the first section of this act printed in plain type, to be exhibited in a conspicuous part of the hall or entrance to his inn, and he shall be entitled to the benefit of this act, in respect of such goods or property only, as shall be brought to his inn, while such copy shall be so ex- hibited. 4. " The words and expressions hereinafter contained, which in their ordinary signification have a more con- fined or a diflferent meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows: that is to say, the word 'inn' shall mean any hotel, inn, tavern, public house, or other place of re- 206 NEGLIGENCE BY PARTICULAR PERSONS. freshment, the keeper of which is now by law responsi- ble for the goods and property of his guests ; and the word 'innkeeper' shall mean the keeper of any such place." ^ In the construction of the first subsection of the first section of this act, it was held by Byles, J., in Squire v. Wheeler, 16 Law Times Rep. 93, that the word "will- ful" must be read with the word "act" only, and not also with the words " default or neglect." Sec. 5. — Medical and professional men, negligence by. To render a medical man liable for negligence or want of due care or skill, it is not enough that there has been a less degree of skill than some other medical men might have shown, or a less degree of care than he himself 1 By a statute of New York it was provided, that wlienever a propri- etor of a hotel should provide a safe or other convenient plan for the safekeeping of any "money, jewels, or ornaments," and shall notify the guests thereof, by posting in the rooms of the guests a notice' to that effect, and if the guest should refuse to deposit such "money, jewels, or ornament!!"insuch safe, that in case of loss of such "money, jewels, or ornaments " by theft or otherwise, the hotel proprietor should not be liable. The plaintiff's claim was for a gold watch, chain, and seal, worth $353. Held, that the watch of a guest at an inn, worn and used by him in the ordinary manner, is neither ^ "jewel or ornament" within the meaning of the act; and that the innkeeper was liable for the loss thereof in the room of the guest, notwithstanding his compli- ance with the act. And that the statute being in derogation of the common law, was to be construed strictly. Ramsley v. Leland, 43 N. Y. 541. But in the case of Hyatt v. Taylor, 42 N. Y. 258, this court decided, that the hotel keeper was not liable for any money not deposited in the safe. In Wilkins v. Earle, the defendants were held liable for a package of $20,000 which the guest delivered to the hotel keeper with- out stating its value, and which was afterward stolen. 44 N. Y. 172. ^ It seems that notice bji word of mouth is sufBcient. Parvin v. Cole, 2i N. Y. 116; Stanton v. Lcland, 4 £. D. Smith, 8S. BY MEDICAL AND PROFESSIONAL MEN. 207 might have bestowed. There must be a want of com- petent and ordinary care and skill, and to such a degree as to have led to a bad result. Rich v. Pierpont, 3 Fost. & Fin. 35. In Hancke v. Hooper, 7 Ca^. & P. 84, Tindal, C, J., said : " A surgeon does not become an actual insurer; he is only bound to display sufficient skill and knowledge of his profession. If from some accident or some variation in the frame of a particular individual an injury happens, it is not a fault in the medical man. . . . The plaintiff must show that the injury was attributable to want of skill, you are not to infer it." So, in Lanphier v. Phipos, 8 Car. & P. 479, the same learned judge said, in his summing-up to the jury in an action against a surgeon for negligence: " What you will have to say is this, whether you are satisfied that the injury sustained is attributable to the want of a reasonable and proper degree of care and skill in the defendant's treatment. Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your cause ; nor does a surgeon undertake that he will perform a cure ; nor does he un- dertake to use the highest possible degree of skill. There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable, and competent degree of skill, and you will say whether in this case the injury was occasioned by the want of such skill in the defendant. The question is, whether this injury must be referred to the want of a proper degree of skill and care in the defendant or not." ^ 1 In an action for malpractice against a surgeon employed to treat the plaintiff, the latter must show that he was injured by want of reasonable 208 NEGLIGENCE BY PARTICULAR PERSONS. The general duty of all persons who compound and sell articles of a dangerous or mischievous description is well pointed out in the case of George et ux. v. Skivington, 39 L. J., Ex. 8. In that case the declaration alleged that the defendant was a chemist, and sold to the hus- band of the female plaintiff, to be used by the wife, a compound, the ingredients of which were known only to himself, and which he professed was fit for washing the hair, and could be used without personal injury; but that the defendant had acted so unskillfully, negli- gently, and improperly in and about making the com- pound, that it was not fit to be used for the said pur- pose, and through his negligence, etc, the wife's hair was destroyed. Upon a demurrer to this declaration, it was held, that the wife had a good cause of action. In giving his judgment, Kelly, C. B., said : "I am of opinion the plaintiff is entitled to the judgment of the court. The facts appearing upon the declaration are, that the male plaintiff purchased an article which is called 'hair-wash ' from the defendant, which the defendant pro- fessed to have made and compounded of ingredients known only to himself, and which he represented was fit for wash- ing the hair and could be used without personal injury; and that in consequence of his negligence in compound- care and skill on the part of the defendant. Craig v. Chambers, 17 Ohio St. 253 ; Gallagher v. Thompson, Wright's Ohio, 466. A physician is bound to exercise reasonable care and skill. McNev- ins V. Lowe, 49 111. 209. See Palten v. Wiggin, 5 1 Maine, 594 ; Wilmot V. Howard, 39 Vt. 447 ; McClellen v. Adams, 19 Pick. 333. A physician not responsible for want of success unless it result from want of ordinary care, skill, and judgment. Palten v. Wiggin. What is an unskillful operation. Wright v. Hardy, zz Wis. 348. But where the attendant physician communicates an infectious dis- ease, he can not recover for the additional services rendered necessary by his own proper want of care. Piper v. Menifee, 12 B. Mon. 465. BY MEDICAL AND PROFESSIONAL MEN. 209 ing the wash the female plaintiff (for whose use it was intended) was injured by it. Now the first question is, can the action be maintained ? And it has been con- tended that there was no warranty on the sale of this wash either expressed or implied. It is quite unneces- sary to enter into that, because here the contract for sale and purchase, of which the warranty .would form part, is alleged only by way of inducement, the facts being, that there was a contract entered into by the plaintiff, the husband, for the purchase of this wash, and that it was known to the defendant, who was the maker and com- pounder of the wash, that it was purchased for the pur- pose of being used by the wife. No question of war- ranty arises; but the question is, whether, if a chemist or perfumer, or other compounder of an article of this description, sells it for the purpose of being used by a particular person named and known to the seller at the time, a duty is not imposed upon the seller to use ordinary care and ordinary skill in compounding the article in question ? Here the charge is, that the defend- ant so negligently and unskillfuUy compounded the article that, by reason of the mere unskillfulness, negli- gence, wrongful and improper conduct of the defendant, the article turned out unfit for the purpose, and effected a personal injury to the female plaintiff. I take it that every one who compounds an article for sale has a duty imposed upon him to use ordinary and reasonable care and skill in compounding the article, so as to prevent personal injury to the person who has to use it. The only question, however, in this case upon which any doubt or difficulty can be raised is, whether that duty is thus imposed by law upon the seller or compounder of an article of this description, not merely with respect to 14 210 NEGLIGENCE BY PARTICULAR PERSONS. the purchaser with whom he enters into the contract of sale, but with respect to any other person or persons for whose use alone the article is purchased, and for whose use, therefore, he knows it is destined. Here the case of Levi V. Langridge, 4 Mee. & Wei. 337 ; 7 L. J., Ex. 387, is of importance, as it is applicable to the present case. There a gun was sold, not to the plaintiff in the action but to another person, but it was sold for the purpose of being used by the plaintiff in the case, and that was known to the defendant who sold it. There was no contract at all between the plaintiff and defend- ant in that case. The contract of sale and purchase there, as here, was alleged in the declaration only by way of inducement; and it was held, in that case, that a duty arose not merely with regard to a purchaser, if the article had been merely used by him, but also with re- gard to a third person, by whom it is alleged by the purchaser and known to the seller at the time that the article was to be used, and the duty that arose was a duty to take care that the article might be used with safety by a person for whose use it was designed under and by virtue of the contract. Now here I am clearly of opinion that where an article of this description is pur- chased by A. for the use of B., and it is alleged and stated at the time of the purchase and sale to have been so purchased, and therefore becomes known to the de- fendant, who is the seller »f the article, the duty arises on the part of the seller of the article that it shall be reasonably fit for the purpose to which it is destined, and that it may be used without danger so far as the duty to compound with reasonable and ordinary skill and care is by law imposed upon him. Here, the gravamen of the charge is, that he did not use ordinary skill and care, but he made and compounded this article so unskill- BY PRINCIPAL AND AGENT. 211 fully, carelessly, and negligently, that by reason of such unskillfulness, carelessness, and negligence the injury resulted to the female plaintiff. Under those circum- stances, first taking the proposition of law that the duty^ is imposed upon every one who compounds an article of this description to conduct himself with regard to the purchaser with reasonable care and skill, the first princi- ples of the law, as well as the authority of Levi v. Langridge (which I do not hold to be necessary for this purpose), show that the duty extends to the person to whom afterward it is destined, and by whom the person who sells it knows it is to be used, and with respect to whom he has entered into the contract. Now, there- fore, this duty having arisen, and this duty having been violated, he, the seller, having failed to use reasonable care and skill in the compounding of the article, is liable in an action at the suit of the person for whom he knows the article was purchased, and by whom he knew it was intended to be used."^ Sec. 6. — Principal and agent, negligence of agent. The liability of a principal for the acts of his agent have been sufficiently considered in the previous pages, especially in Chapter IV., and it will be necessary here only to refer to the liability of the agent to his principal for damages arising from his acts of negligence. It is well established thzt 2i gratuitous* &gent is liable only when he has been guilty of gross negligence, though if the agent be one whose profession denotes the pos- session of skill as applicable to the particular matter of agency, his omission to exercise that skill will be con- sidered as gross negligence. See Shields v. Blackburn, 'In Com. V. Thompson, 6 Mass. 134, the law was laid down very favorably for ignorant practitioners of medicine. See, also, Com. v. Bozaer. Phil. Oyer and Terminer, April Term, 1 869. 212 NEGLIGENCE BY PARTICULAR PERSONS. I H. Bl. 158 ; Doorman v. Jenkins, 2 Ad. & Ell. 256. In the first of these cases. Lord Loughborough said : " I agree with Sir William Jones, that when a bailee undertakes to perform a gratuitous act, from which the bailor alone is to receive benefit, then the bailee is only liable for gross negligence. But, if a man gratuitously un- dertakes to do a thing to the best of his skill, when his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence. If in this case a ship-broker, or a clerk in the custom-house, had undertaken to enter the goods, a wrong entry would in them be gross negligence, because their situation and employment necessarily imply a competent degree of knowledge in making such entries." See the note to Coggs V. Bernard, Smith's Lead. Cases, where the learned editors, in referring to the above dictum, say : " It per- haps may be more correct to call this a distinction, engrafted on the general doctrine, than an exception from it, since it does not render any unpaid agent liable for less than gross negligence ; but renders that gross neg- ligence in some agents which would not be so in others ; see Wyldv. Pickford, 8 Mee. & Wei. 443, und, Wilson v. Brett, II Mee. & Wei. 113, where it was laid down, that an unpaid agent is bound to use such skill as he is shown to possess, and is guilty of culpable negligence if he do not. And Rolfe, B., in that case, said, that there is no difference between negligence and gross negligence, that it is the same thing with the addition of a vituperative epithet. Also, in Austin v. The Manchester, etc.. Railway Co., 10 Com. B. 454, it was said, the phrase ^rojj negli- gence is more correctly used' in describing the sort of negligence for which a gratuitous bailee is responsible." As this subject is very fully considered in Chapter IV., the reader is referred to it for further information. COMPENSATION FOR DEATH BY ACCIDENT. 213 CHAPTER VI. COMPENSATION FOR DEATH BY ACCIDENT. Until the passing of Lord Campbell's Act,^ entitled " an act for compensating the families of persons killed by accident," 9 and 10 Vict., c. 93, no right of action existed whereby any damages could be obtained, in a court of law, for the death of a party though brought about by che grossest negligence, the maxim of actio personalis moritur cum persona intervening to prevent any proceedings being maintained at the instance of any one, however great may have been the loss sustained. That statute, however, after reciting that no action at law is maintainable against a person who by his wrongful act, neglect, or default, may have caused the death of another person, and that it is oftentimes right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him, enacts : I. "That whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an ' The legislatures of the various States in the Union have enacted similar statutes. 214 COMPENSATION FOR DEATH BY ACCIDENT. action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. 2. " That every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or adminis- trator of the person deceased ; and in every such action the jury may give such damages as they may think pro- portioned to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought ; and the amount so recovered after deducting the costs, not recovered from the de- fendant, shall be divided amongst the before- mentioned parties in such shares as the jury by their verdict shall find and direct. 3. "Provided always, that not more than one action shall lie for and in respect of the same subject-matter of complaint ; and that every such action shall be com- menced within twelve calendar months after the death of such deceased person. 4. "That in every such action the plaintiff on the record shall be required, together with the declaration, to deliver to the defendant or his attorney a full par- ticular of the person or persons for whom and on whose behalf such action shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered. 5. "That the following words and expressions are intended to have the meanings hereby assigned to them respectively, so far as such meanings are not excluded by the context, or by the nature of the subject-matter ; that is to say, words denoting the singular number are COMPENSATION FOR DEATH BY ACCIDENT. 215 to be understood to apply also to a plurality of persons or things ; and words denoting the masculine gender are to be understood to apply also to persons of the fem- inine gender; and the word 'person' shall apply to bodies politic and corporate ; and the word ' parent ' shall include father and mother, and grandfather and grandmother, and stepfather and stepmother; and the word ' child ' shall include son and daughter, and grand- son and granddaughter, and stepson and stepdaughter." An action upon the statute can only be maintained in cases where the deceased himself could, if alive, have maintained the action ; therefore, if, in an action where death is alleged to have been caused by the negligence of the defendant or his servants, it be shown that the defendant, by his own negligence or carelessness, con- tributed to the accident, the defendant will not be liable. Thoroughgood v. Bryan, 8 Com. B. 115; 18 L. J., C. P. ;^2^ ; Dynen v. Leach, 16 L. J., Ex. 221 ; Waite v. The Northeastern Railway Co., Ell., Bla. & Ell. 728 ; 28 L. J., Q. B. 258 ; Witherby v. The Regent's Canal Co., 12 Com. B., N. S. 2.^ The principle upon which damages are to be assessed is that of a pecuniary loss. No compensation can be given for wounded feelings, or the loss of comfort and companionship of a relative. Blake v. The Midland Rail- way Co., 18 Q. B. 93 ; 21 L. J., Q. B. 233. If, there- fore, no such loss can be established, no action can be maintained.^ Duckworth v. Johnson, 29 L. J., Ex. 25 ; 4 Hur. & N. 653. And if a pecuniary loss be estab- lished, it is immaterial that the benefit was derived from the gratuitous liberality of the deceased. Thus, in ' fFe/Js V. Hudson R. R. R. Co., 24 N. Y. 430. »To the same effect, feaa. R. R. Co. v. Vandever, 36 Penn. St. 298. 216 COMPENSATION FOR DEATH BY ACCIDENT. I Dalton V. The Southeastern Railway Co., 4 Com. B., N. S. 296 ; 27 L. J., C. P. 227, it appeared that the de- ceased was about twenty-seven years of age, unmarried, and earned about 150/. a year, and that he was killed by a cojlision whilst traveling on the defendants' railway, and that his father, who was his administrator and the plaintiff in the action, was fifty-one years of age, and that for seven or eight years previous to his death the deceased had been in the habit of visiting his parents once a fortnight, and on each occasion brought them presents of tea, sugar, coffee, and meat, etc., averaging in value about 10/. a year, and that he had also been in the habit of giving them pecuniary assistance to the amount of about 10/. a year more. The jury found a verdict for the plaintiff, with 120/. damages in respect of the pecuniary loss, and 15/. additional for funeral ex- penses, and 10/. for mourning. The court upheld the finding for the pecuniary loss, but disallowed it for the funeral expenses and mourning. In delivering the judg- ment of the court, Willes, J., said: "The great ques- tion in this case was disposed of by the judgment of the Court of Exchequer, in the case of Franklin v. The Southeastern Railway Co., 3 Hur. & N. 211, by which it is decided with our concurrence, that legal liability alone is not the test of injury in respect of which damages may be recovered under Lord Campbell's act, but that a reasonable expectation of pecuniary advantage by the relatives remaining alive may be taken into ac- count by a jury, and damages may be given in respect of that expectation if it be disappointed, and the prob- able pecuniary loss thereby occasioned. In respect, therefore, of the sum of i2o/. given as damages on that footing, the verdict must stand. As to the claim for funeral expenses and mourning, however, we think thev COMPENSATION FOR DEATH BY ACCIDENT. 217 ought not to be allowed. The subject-matter of the statute is compensation for injury by reason of a rela- tive not being alive, and there is no language in the statute referring to the cost of the ceremonial of respect paid to the memory of the de':eased in his funeral, or in putting on mourning for his loss." But although the loss contemplated by the statute is of z. pecuniary nature, it is not thereby necessarily con- fined to an immediate loss of money, since it is sufficient if the death result in the loss of the worldly means of the deceased, whereby the condition of the relatives is impoverished or prejudiced. Thus the loss of the benefit of education, and of the comforts and conve- niences of life depending upon the possession of pecu- niary means to obtain them, through the death of a father, whose income ceases with his life, is an injury, in respect of which an action may be sustained ; and upon the same principle it has been held, that a reason- able expectation of pecuniary advantage arising from the prolonged life of a relative may form the subject of damages in such an action. This subject was very carefully considered in the case of Pym V. The Great Northern Railway Co., 2 Best & S. 759 ; 31 L. J., Q. B. 249, and, inasmuch as the consid- ered judgment of the court lays down principles of very great practical importance, and was afterward upheld by the Court of Exchequer Chamber, it will be desirable to give it at length. Coclcburn, C. J., said : " In this case it was objected, on the part of the defendants, first, that the plaintiff was not entitled to recover in point of law; secondly, that even if the plaintiff was entitled to re- cover, the damages were excessive. The action was brought by the widow and administratrix of a gentleman of the name of Pym, who had lost his life by an acci- 218 COMPENSATION FOR DEATH BY ACCIDENT. dent on the defendants' railway, occasioned by the neg- ligence of their servants. The deceased was tenant for life of a settled estate in land, the value of which was little short of 4,000/. a year. By the provisions of the settlement a jointure of 1,000/. a year was settled on his wife, and a sum of 20,000/. was secured to the younger children on his death. The estate itself passed under the entail to his eldest son, Mr. Pym died intestate, leaving personal property amounting to about 3,400/. He left beside his eldest son eight younger children, the eldest under twelve years of age ; and the action was brought by his widow, under the provisions of 9 and 10 Vict., c. 93, on her own behalf and that of her younger children, to recover compensation for the pe- cuniary loss sustained by them in consequence of his death. The heads of loss mainly relied on by the plaintiff were, first, the loss of the advantages of superior education, and of the social position and personal com- fort of which the father's income, had he lived, would have secured the benefit and enjoyment to the family; secondly, the loss of that provision, which it was to be presumed that the deceased, as a prudent father of a family, would have made by saving from his income for the benefit of his wife and younger children. The jury, who were properly directed, if they considered the fact of negligence as established, to estimate the damage with reference to pecuniary loss alone, assessed the damages at 13,000/., being i,ooo/. for the widow, and 1,500^ for each of the children. It is objected, on the part of the defendants, that, independently of the amount of dam- ages, the verdict can not stand ; first, because the case does not come within the terms of the statute ; sec- ondly, because the loss, even if a pecuniary loss at all, is in the present instance too uncertain and remote to be COMPENSATION FOR DEATH BY ACCIDENT. 219 properly the subject of compensation under the statute. In support of the first of these grounds of objection, the language of the first section of the act was relied on, and it was contended that, inasmuch as- if the death had not ensued from the effects of the accident, the deceased would have had no right of action against the company in respect of a pecuniary loss arising only on his death, this action could not be maintained by his representa- tive, inasmuch as the right of action is given only where the deceased could have maintained an action if death had not ensued. We were at first struck with this argu- ment, but on consideration we are of opinion that the condition that the action could have been maintained by the deceased if death had not ensued has reference not to the nature of the loss or injury sustained, but to the circumstances under which the bodily injury arose, and the nature of the wrongful act, neglect or default com- plained of. Thus, if the deceased had by his own neg- ligence materially contributed to the accident whereby he lost his life, as he, if still living, could not have maintained an action in respect of any bodily injury, notwithstanding there might have been negligence on the part of the defendants, the present action could not have been supported. But supposing the circumstances of the negligence to have been such that if death had not ensued the deceased might have brought his action in respect of any injury arising to him from it, we are of opinion that his representatives may maintain an action in respect of an injury arising from a pecuniary loss occasioned by the death, although that pecuniary loss would not have resulted from the accident to the de- ceased had he lived. This being the view we take of the effect of the condition contained in the act, we arf of opinion that this objection to the plaintiff's right of 220 COMPENSATION FOR DEATH BY ACCIDENT. action fails. As to the second head of objection^ we are of opinion that as the benefit of education, and the enjoyment of the greater comforts and con- veniences of life depend upon the possession of pe- cuniary means to procure them, the loss of these advantages is one which is capable of being esti- mated in money, in other words, is a pecuniary loss, and therefore the loss of such advantages, arising from the death of a father whose income ceases with his life, is an injury in respect of which an action can be main- tained on the statute, a fortiori the loss of a pecuniary provision which fails to be made, owing to the premature death of'a person by whom such a provision would have been made had he lived, is clearly a pecuniary loss for which compensation may be claimed. It is true that it must always remain matter of uncertainty, whether the deceased person would have applied the necessary portion of income in securing to his family the social and domestic advantages of which they are said to be deprived bv his death ; still more, whether he would have laid by any and what portion of his income to make provision for them at his death. But as it has been established by the cases decided upon the statute, that if there be a reasonable expectation of pecuniary advantage, the extinction of such expectation by negli- gence occasioning the death of the party from whom it arose will sustain the action, it is for a jury to say, under all the circumstances and taking into account all the uncertainties and contingencies of the particular case, whether there was such a reasonable and well- founded expectation of pecuniary benefit as can be esti- mated in money, and so become the subject of damages in such an action. The matter having in the present instance been thus left to the jury, and the issue having COMPENSATION FOR DEATH BV ACCIDENT. 221 been found by them for the plaintiff, we see no reason for disturbing the verdict so far as the right of the plaint- iff to maintain the action in point of law is concerned. We are not insensible to the argument al> inconveniend, founded on the very serious consequences which might ensue to a railway company, in the event of a fatal accident happening from negligence to an individual of very large fortune. But we think that is rather for the consideration of the legislature, as to whether any limit should be put to the liability, than for us. We see no difference in principle between such a case as the present and that of a family of an artisan for the loss of advantages arising from their father's earnings, in which case it is not doubted that the action may be main- tained." With reference to the actual amount of damages awarded, the court, thinking that it was some- what in excess of what was reasonable, recommended that the amount awarded to each of the children should be reduced from 1,500/. to 1,000/., which was acceded to. This case was afterward taken to the Exchequer Chamber, 4 Best & S. 29^; 32 L. J., Q. B. 377, where it was again argued and where the judgment of the court below was affirmed. In his judgment, Erie, C. J., said: "The question raised by this appeal is, whether there is any evidence which the judge was bound to leave to the jury in support of the cause of action declared upon. The court below affirmed that there was such evidence, and we think that they were right. The governing question of whether there was any evidence is, whether there was a reasonable proba- bility of pecuniary benefit to the parties interested if the death had not occurred? If yes, the next question is, was that probability lost by reason of the death? If that also is answered in the affirmative, there was a 222 COMPENSATION FOR DEATH BY ACCIDENT. question which the judge was bound to leave to the jury. Here the deceased had a large income of about 4,000/. a year, and had so settled his estates that 1,800/. a year was to go to the widow and younger children ; the rest went to the eldest son. Down to the time o^ his death the deceased was living with his family in the ordinary manner, maintaining his children and bringing them up in the way which such an income would com- mand. The jury were bound to give damages for the money which they supposed lost by the reasonable probability of pecuniarv benefit being taken away by the death. The statute gives a cause of action beyond what the deceased could have maintained, if he had been only injured, and not killed. That is established hy Frank- lin V. The Southeastern Railway Co., 3 H. & N. 211; and Dalton v. The Southeastern Railway Co., 4 Com. B., N. S. 296 ; 27 L. J., C. P. 227, which show that loss by the death, of a reasonable probability of pecuniary benefit, is an item for which the jury may give damages to the plaintiff. In those cases the sum in dispute was small. The parties deceased were in the habit of giving weekly contributions to a patent. I think the same order of events occurs here in substance. The deceased maintained his children, and gave them a reasonable probability of pecuniary benefit to arise from his income. The possibility of pecuniary benefit is certainly distinct from and may be separated from the income itself. We think, therefore, that the first point contended for by Mr. Hawkins is not tenable. We are further of opinion, that the second pojnt taken by him fails, namely, that where the whole income goes among the class protected by the statute, there is no loss, and no ground of action. But the remedy is not given to the class of widows and qhildren. The action is to be COMPENSATION FOR DEATH BT ACCIDENT. 223 brought in the name of the executor; but the jury are to give damages to the parties respectively for whose benefit the action is brought. It requires, therefore, the jury to look to the interests of each of those parties. Here the younger children have clearly lost the proba- bility of benefit to be derived by them from the father's income, if he had lived. The third point fails in like manner; it is founded on the mode in which Mr. Pym resettled his property. The answer to the second point in fact gives the answer to the third. The jury are to give damages to the parties respectively. Our judgment sanctions the proposition, that in law the reasonable probability of pecuniary benefit lost by the death is a good ground of action."^ In Dickinson v. The Southeastern Railway Co., 1 Hur. & C. 735 ; 23 L. J., Ex. 683, it was held, that an illegitimate child is not within this statute. Pollock, C. B., saying, " I do not entertain any doubt that the word 'child' in the act means legitimate child." ^ 'So .the -loss of the mother's care and training maybe estimated in calculating the pecuniary injury which her infant children have sustained. Tilly y. Hudson River R. R. Co., 29 N. Y. 252. The jury must be governed by the weight of evidence as to what would be a fair and just compensation with reference to the pecuniary injuries sustained by the next of kin. The question, " what did the deceased usually earn," is proper. Mclntyre v. N. Y. Central R. R. Co., 37 N. Y. 287 ; 24 N. Y. 471. ^SeJ contra, in Ohio. Muhl v. Southern R. R. Co., 10 Ohio St. 272. 224 OF DAMAGES FOR NEGLIGENCE. CHAPTER VII. OF DAMAGES FOR NEGLIGENCE. The question of the measure of damages is one that has produced more difficulty than perhaps any other branch of the law. Per Wilde, B., in Gee v. T/ie Lancashire and Yorkshire Railway Co., 6 Hur. & N. 211 ; 30 L. J., Ex. II. Every person who does a wrong is at least responsi- ble for all the mischievous consequences that may reason- ably be expected to result under ordinary circumstances from such misconduct. Per Pollock, C. B., Rigby v. Hewit, 5 Ex. 243. The difficulty which usually arises in questions of loss or injury through negligence con- sists in ascertaining whether such loss or injury is such as may reasonably have been expected to have resulted from such negligence. When the injury is the imme- diate and obvious result of the negligence, no question can well arise, but it may well be conceived that an injury may result from an act of negligence which could by no possibility have been foreseen, and which no reasonable person could have anticipated. In the case of damage arising from the breach of contract, the rule laid down in Hadley v. Baxendale, 9 Ex. 341 ; 23 L. J., Ex. 179, that when two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably OF DAMAGES FOR NEGLIGENCE. 225 be considered, either arising naturally, /. e., according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it, is a clear and satisfactory one.^ In the case of damages arising from torts, and espe- cially of torts of the nature of negligence, no such rule can be applied in its entirety, though perhaps if the first branch of it be taken, and it be laid down that the dam- ages which the injured party should be entitled to receive should be such as may fairly and reasonably be consid- ered, as arising out of the negligence, a safe and sound rule will be established. In cases of injuries to personal property from negli- gence, the measure of damages should be the deprecia- tion in value of the article, to which may be added, any amount of loss the owner may have sustained by the being compelled to substitute another article. Thus, in Hughes V. ^uentin, 8 Car. & P. 703, where, from the careless driving of the defendant, the plaintiff's horse, which was drawing a cart, was injured, and it appeared that the horse at the time of the accident was worth 40/., and tHat for six weeks after the accident it was kept at a farrier's for the purpose of being cured, and that at the end of that time the horse was permanently damaged to the extent of 20/., Lord Abinger told the jury, that the proper measure of damages was the keep of the horse at the farrier's during the six weeks, the farrier's bill, '"As a general rule, the damages recoverable upon a breach of con- tract include gains prevented as well as losses sustained, provided such gains are certain, and such as would have naturally resulted from per- formance. Messmore v. N. T. Shot and Lead Co., 40 N. Y. 422. 15 226 OF DAMAGES FOR NEGLIGENCE. and the difference between the value of the horse at the time of the accident and at the end of the six weeks.^ In an -action for a wrong, whether arising out of tres- pass or a, negligent act, the jury in estimating the dam- ages may take into consideration all the circumstances attending the committal of the wrong; as where, in an action for wrongfully and injuriously pulling down a building adjoining the plaintiff's stable in a negligent and an improper manner, and with such a want of proper care, that by reason thereof a piece of timber fell upon the plaintiff's stable and destroyed the roof, and by reason of the defendant's negligence, carelessness, and unskillfulness part of the building fell upon and injured the plaintiff's horse, evidence was given showing that the defendant had acted willfully, and with the object of forcing the plaintiff to give up the possession of the stable; in which case it was held, that the jury were properly directed, that if they thought the defendant had acted with a high hand, willfully, and with the object of getting the plaintiff out of possession, the damages might be higher than if the injury was the result of pure negligence. Emblen v. Myers, 6 Hur. & N. 54; 30 L. J., Ex. 71. In his judgment. Pollock, C. B., said: "I think it is felt by all persons who have occasion to consider questions of compensation, that there is a difference between that which is purely the result of accident, the party who is responsible being perfectly innocent, and the case where he has accom- panied the wrong, be it willfulness or negligence, with expressions that make the wrong an insult as well as an mjury. ' And also a compensation for the loss of the use of the horse while being cured. Giliett v. Western R. R. Co., 8 Allen, 560. Tor a discussior of the rule, and citation of the cases where ex- OF DAMAGES FOB NEGLIGENCE. 227 Where the damages are the direct natural and obvious consequence of the negligence, little difficulty presents itself; where, however, they are not so, but are contin- gent upon the existence of a particular state of things, not necessarily springing from the negligence imputed, the rule of law is by no means free from some obscurity. In Hamlin v. The Great Northern Railway Co., 26 L. J., Ex. 21, the plaintiff, a person in business, traveling to meet his customers, booked himself by the defendants'railway as a passenger from London to Hull, by a train which the de- fendants advertised to arrive at Hull the same night. On reaching Grimsby, where the defendants' line ended, it was found that the Hull train had left, and although the plaintiff might have reached Hull that night by taking a special conveyance, and hiring a boat to cross the Humber, he remained at Grimsby, and proceeded by train the next morning, but he was too late to reach Driffield and other places by the hour he had previously appointed for meeting his customers, and, in conse- quence, he was obliged to hire conveyances to see some of his customers elsewhere, and was detained several days waiting for the market days to see others. The plaintiff having brought his action against the defend- ants for breach of their contract to convey him to Huli, it was held, that he was only entitled to recover the amount of hotel expenses at Grimsby, and the railway fare the next day to Hull, and was not entitled to re- cover for any damage whatever, occasioned by his not reaching Driffield, and other places by the time he might have reached them, if the defendants had performed their emplary or punitive damages are allowed for a willful tort, see Goddard V. Grand Trunk R. R., decided in the Supreme Court of Maine, cited above. 228 OF DAMAGES FOR NEGLIGENCE. contract. The jury in this case having, under the di- rection of the learned judge, returned a verdict for only 5J., as the cost for the night's lodging, and the journey the next morning to Hull, a new trial was moved for by the plaintiff, but the court refused it. In the course of a considered judgment. Pollock, C. B., said: "Now, there is no doubt that cases of this description are to be decided with reference to the peculiar circumstances that^ belong to each ; still it may be laid down that no dam- ages can be ordinarily recovered in an action on contract that are not capable of being specifically stated and appreciated. We are of opinion that the rule laid down by my brother Martin at the trial was the correct one, and that the plaintiff was entitled to recover whatever amount of damage in the ordinary course of things resulted from a breach of contract, but that it was not a matter to be left to the jury to say how much they awarded for the mere disappointment, or how much they would award in consequence of the non-perform- ance of the contract, unless the damage or mischief complained of was the natural and fair result of a breach of contract." ^ In Smeed v. Foord, i Ell. & Ell. 602 ; 28 L. J., Q. B. 178, the defendant had contracted to deliver to the plaintiff, a farmer, a steam thrashing-machine within three weeks from the 24th of July, but did not do so till the nth of September. The plaintiff, as the de- fendant well knew, was in the habit of thrashing out his wheat in the field, and sending it off at once to the market. In consequence of the non-delivery of the ' Prospective profits can not be allowed as damages. Gilpins v. Con- seqaa. Pet. C. C. 86; Dusar v. Murgatroyd, i Wash. C. C. 13. See also Leonard v. N. T. and Cal. Tel. Co., 41 N. Y. 544, where the measure of damages arising from the breach of contract is laid down. OF DAMAGES FOR NEGLIGENCE. 229 machine it became necessary to carry the wheat home and to stack it. The wheat was damaged by exposure to the weather, so that it was necessary to dry it in a kiln, and the quality was much deteriorated, and before it could be sold the market price had fallen. The de- fendant knew that the machine was wanted for immediate use at the time appointed for delivery, but he led the plaintiff on from day to day to believe that it would be shortly delivered. In an action for damages for the non-delivery of the machine, it was held, that the plaint- iff was entitled to recover damages in respect of the deterioration of the quality of the wheat, in respect of the expense of carrying and stacking it, and in respect of the expense of kiln-drying. It was, however, held, also, that the plaintiff was not entitled to any damages in respect to the fall of the market price of wheat, because it could not have been foreseen by the parties that the markets would fall, and it was not in the contemplation of the parties at the time they made the contract. See also Wilson v. The Newport Dock Co., 35 L. J., Ex. 97. Although the foregoing cases turned chiefly upon a breach of contract, the principle involved in them is equally applicable to actions in tort. The question was much considered in Wilson v. The Lancashire and York- shire Railway Co., 9 Com. B., N. S. 632 ; 30 L. J., C. P. 232. In that case the plaintiff, a cap manufacturer, brought an action against the defendants to recover damages for the loss sustained by him in consequence of delay in the delivery of cloth, by which he had lost the season for making it into caps, and so of disposing of it; and it was held, that although the jury, in esti- mating the damages, could not give the plaintiff the loss of profit he might have made by the manufacture of the cloth into caps, yet they were justified in taking 230 OF DAMAGES FOR NEGLIGENCE. into their consideration the deterioration in the market • able value of the cloth, ^by reason of the season having passed for making caps, which the plaintiff might theii have sold. In his judgment, Williams, J., said : " There are two cases in question like the present ; the one is, whether where the carrier is guilty of negligence and delay in delivering goods the consignee is entitled to recover the profits which he would have made, if the goods had been delivered at the proper time ? As to that, we are of opinion that he is not. The other question is, whether he is entitled to recover the differ- ence between what the value of the goods would have been, if they had been delivered at the proper time, and what the value of them was when they actually were delivered ? Now we are of opinion that the consignee is entitled to recover that. It seems to me, that if it were otherwise, injustice , would be done; because, to put a familiar case, a tradesman at a watering-place orders a quantity of ribbons, which if there were no delay in the delivery by the carrier would reach him at the beginning of the season ; suppose by delay through the negligence of the carrier, the ribbons are not de- livered until after the season is over, the consequence would be that the time would have passed when the tradesman could have found a ready market for them, and the consequence would probably be an actual loss in their value. It seems to me, that it would then be unjust, if in such case the carrier was not made answer- able for such loss. Apply this to the present case. It appears from the plaintiff's evidence that this cloth, if it had arrived in due time would have been made into caps, and would have been worth 230/. ; the plaintiff says, that by reason of the time having passed, when it was the season to buy these caps, the value of the cloth OF DAMAGES FOR NEGLIGENCE. 231 when it arrived was only 130/. instead of 230/. That is how he states his case, and that was the evidence left to the jury for their consideration. There was, there- fore, as it seems to me, evidence for the jury, that the defendants by reason of their negligence delivered the cloth in question at a time when it was of considerable less value than it would have been if it had been de- livered by them when they ought to have done so. It is, however, said that such damages could not be given to the plaintiff without violating the rule laid down in Hadley v. Baxendale. I think that is not so; and that the giving of such damages would be no violation of that rule, inasmuch as it appears to me that delay in the delivery may well produce considerable deterioration in the value of goods." The difficulty of applying any exact rule with refer- ence to the measure of damages, where the loss arises from the negligence of a carrier to deliver goods in due time, has generally been admitted, though the judges have, as far as possible, endeavored to establish an intelligible rule in the case of Gee v. The Lancashire and Yorkshire Railway Co., 6 Hur. & N. 211; 30 L. J., Ex. II. In that case certain bales of cotton were not delivered for four days after the day when they should have been delivered, and in consequence of the delay a new mill of the plaintiffs was prevented from being worked for two days and a half, and work-people were kept idle, to whom the plaintiffs had to pay 7/. wages for the time. The plaintiffs also claimed 7/. \os. for their profits they would have made by working their mill for the time in question. The judge directed the jury that the plaintiffs had a right to charge as legal damage such loss as naturally and immediately arose from the stoppage of their mill; that the question was, 232 OF DAMAGES FOR NEGLI&ENOE. what had been the actual loss and actual detriment that the plaintifFs had suffered by the non-arrival in due course of the cotton ? and that the plaintiffs were en- titled to the money they had actually paid as wages, md that the profit they would have made was a fair i abject of calculation. This direction, however, was held to be erroneous. In his judgment. Pollock, C. B., says : "In the first place, the learned judge told the jury that the plaintiffs were entitled to the money that had actually been paid as wages. He says the plaintiffs have put it at 7/. lo^., but no doubt they put it at the highest amount. He, therefore, gives them 7/. useless wages, paid as a positive item that a jury ought to give; and then he says, in addition to that, they ought to give whatever in their judgment was the actual loss or detrir ment sustained by the plaintiffs, by the non-arrival of the cotton. Now, Mr, Wheeler has pressed us that all this was the consequence of the non-arrival of the cotton. It was not the consequence of the non-arrival of the cotton alone, but it was the consequence of the non- arrival of the cotton, and of the plaintiffs having no cotton to resort to. No doubt, if it could be made out that the practice in the neighborhood of Liverpool and Manchester was such that every carrier must know that when cotton was sent, there was a mill standing still until it should arrive, all this might have been a right direction". If they had notice of that, either actual notice, or if from the course of business they could have anticipated it, the damage would have been perfectly right. Generally speaking, persons who have to make use of commodities and certain implements guard against the possibility of being without them by having some alternative or some substitute ; and every time a railway company receives bales of cotton, they OF DAMAGFS FOR NEGLIGENCE. 233 are not to take notice that at that moment a mill is actually standing still and waiting for it. If the seller of goods is asked : ' Will you send me to-morrow ten bales of cotton? Will you take that order?' 'Yes, I will ' — is the seller to be made responsible for all the consequences if the cotton is not delivered precisely on that day ? I own it appears to me, with reference both to the seller and the carrier, that they are not so re- sponsible, unless distinct notice was given at the time of sending the cotton. ' Now you must make no mis- take about it. It must be delivered immediately, for the mill is actually standing still, and you will be responsible for all consequences.' If that stipulation had been made, I think it is exceedingly likely that the railway company would have said : ' If that be so we will not take the cotton to be delivered under those circumstances, unless you pay a much higher price for the carriage of it;' and I think that they would be justified in doing that. Persons who carry on the business of common carriers are bound to take goods at a reasonable rate; but they are not bound at the same rate to incur a responsibility such as imposed by the summing-up of the learned judge." In his judgment in the same case, Wilde, B., says : " The rule in Hadley v. Baxendale is, that the damage a man is entitled to, as the legal measure of damages, is such as is either the natural consequence of the act complained of, or such as both parties might expect • to be the consequence in the particular case. Is it so in this case ? Does the damage that the plaintiffs recovered fall within either of those descriptions? It is not the natural consequence, as has been well pointed out by the Lord Chief Baron, of the non-arrrival of the bales of cotton that the mill should stop. The stoppage of the mill is the consequence 234 OF DAMAGES FOR NEGLIGENCE. of the bales not arriving, and of the men not having the cotton to go on with. Is it a consequence that the parties might expect? If Mr. Wheeler's suggestion imported into the case is true, namely, that all the mills in Lancashire are in the habit of working from hand to mouth, and that nobody has a stock of cotton, and the effect of the ten bales not arriving is to stop the mill, then it would be in the expectation of the parties, and if anything of the kind had been given in evidence, the learned judge would probably have mentioned it. In the absence of evidence it can not be imported into the case. For this reason- I think the summing-up was wrong. Then, we are pressed to say what is the rule of damages ? All I intend to say on this subject is this : " In my opinion these matters are not the legal meas- ure of damages This question of tl^e measure of damages is one that has produced more difficulty than perhaps any other branch of the law; and I rather agree with an observation of my brother Martin, that, although a very excellent attempt was made in Hadley v. Baxendale to lay down a rule of practice, it has been found that that rule will not meet all cases, and it probably will be found practically when the matter comes to be more solemnly discussed, that in that, as in many other cases of contract, there is no measure of damages at all, and that we are seeking to find a rule when a rule can not be made. I suspect that will be the consequence when the matter comes to be decided ; and all I at present say is, that the evi- dence does not support the ruling of the learned judge, and that the summing-up was not correct." See also Partman v. Middleton, 4 Com. B., N. S. 324; 27 L. J., C. P. 231. In the case of Hales v. The London and Northwestern OF DAMAGES FOR NEGLTOENCE. 235 Railway Co., 4 Best & S. 66 ; 32 L. J., Q. B. 292, where it was sought to recover damages for the loss of the hire of goods in consequence of the delay of the de- fendants in carrying them to the place of their destina- tion : it was held, that as the defendants had not been made acquainted with the fact of the hiring, they were not liable for that head of damage. See also Corry v. The Thames Iron Works Co., L. R., 3 C. P. 181 ; 37 L. J., C. P. 68. In an action against a carrier for non-delivery, accord- ing to contract, of goods of a marketable kind intended for sale, the jury may give as damages the difference between the market value on the day the goods ought to have been brought to market and the day on which they are afterward brought to market, although no no- tice be given to the carrier that the goods were intended for market, such damages being the natural and im- mediate consequence of the defendants' act, and there is no difference in the application of this rule between a delay occasioned by the detention of goods in the hands of the carrier, and a delay necessary for the purpose of restoring goods to a marketable state when delivered by the carrier in a damaged state. Where, therefore, the plaintiff sent hops in bags from Kent to London by the defendants' railway for the purpose of delivery to the vendee, a hop dealer, and the hops were detained by the defendants several days and received some damage from water, and the vendee thereupon refused to receive them, and the plaintiff dried the hops, and when fit for sale the price had fallen in value and the consequent stained condition of the hops deteriorated the market value of the whole, although for the purpose of brewing the value of the bulk was unaffected: it was held, that the plaintiff was entitled to recover as damages from the 236 OF DAMAGES FOR NEGLIGENCE. defendants the difference in price of the hops on account of their deteriorated market value, although the defend- ants were not aware and had no notice that the hops were sent for the purpose of sale and not for use. Col- lard v.' 'The Southeastern Railway Co., 7 Hur & N. 79; 30 L. J., Ex. 393.1 Where goods are sent by a carrier and lost, the con- signee is entitled to recover their value at the place to which they are consigned as distinguished from the place at which they were delivered to the carrier. Rice V. Baxendale, 30 L. J„ Ex. 371. If, however, there is no market for the sale of such goods at the place to which they are consigned, whereby their value can be ascertained, the jury should ascertain their value by taking the price at the place of manufacture, together with thb cost of carriage, and allowing a reasonable sum for the consignee's profit. O' Hanlan v. The Great West- ern Railway Co., 6 Best & S. 484; 34 L. J., Q. B. 154.^ Upon the principle laid down in Hadley v. Baxendale, 9 Ex. 341 ; 23 L. J., Ex. 179, that the damages should be such as may fairly be considered either arising nat- urally from the negligence or such as may reasonably be supposed to have been in the contemplation of both parties, it was held, that where a commercial traveler had sent his traveler's case of goods by luggage train from Oxford to Liverpool without any intimation re- specting it given to thp defendants, and there was a delay of two days and the plaintiff claimed his hotel 1 The measure of damages in an action against a carrier for the non- delivery of goods, is their net value at the place of delivery, with in- terest from the time when they ought to have arrived. Bazin v. Steam. Co., s Amer. L. R. 459; 3 Wall. Jr. C. C; The Gold Hunter, i Bl. & H. 300. 'See Smithy. Griffith, 3 Hill, 333. OF DAMAGES FOR NEGLIGENCE. 237 expenses for that time, on the ground of his not being able to conduct his business, he was not entitled to re- cover them. Woodger v. The Great Western Railway Co., L. R., 2 C. P. 318 ; 2^ L. J., C. P. 177. See also The Great Western Railway Co. v. Redmayne, L. R., i C. P. 329- Where an action is brought under the provisions of 9 and 10 Vict., c. 93, for compensation for the death of a relative, the case of Pym v. The Great Northern Rail- way Co. [ante, 217) explains the principle upon which damages are to be awarded. Where, however, the action is brought by the party injured to recover compensation, a somewhat different rule obtains, the jury being war- ranted in taking into consideration not only the actual pecuniary loss sustained by the plaintiff, but the physical suffering he has sustained, his incapacity to enjoy life as before, and his probable inability to earn a future improved income. In Fair v. The London and North- western Railway Co., 21 Law Times Rep. 326, the plaint- iff, who was a clergyman, sued the defendants for injuries sustained by him in consequerK:e of an accident. He was twenty-seven years of age, unmarried, and at the time of the accident was secretary to the Irish Church Mission with an income as such of 250/. a year. At the time of accident he was in the enjoyment of excel- lent health, but having by the accident received an injury to his spine, he became afHicted with permanent deaf- ness, and suffered in his other senses and became paralyzed in his lower extremities, from which, accord- ing to the medical testimony, it was hopeless to expect he would ever recover. The jury returned a verdict for 5,000/. damages, besides 250/. for medical and other ex- penses. A rule for a new trial was moved for on the ground that the damages were excessive, for that the 238 OF DAMAGES FOR NEGLIGENCE. amount of the verdict would be more than sufficient to purchase an annuity of 250/., which was the whole of the plaintiff's professional income ; and it was urged that the jury had evidently given damages in respect of the plaintiff's probable increase of income which they had no right to do ; to which observation, Cock- burn, C. J., observed, "I can not assent to that; I think under some circumstances they would be perfectly justified in considering the probable increase of in- come. Take the familiar case of a young barrister of great promise whose progress in his profession is cer- tain. He may make, perhaps, only 100/. a year; would it be right to give him compensation only upon that scale?" In refusing the rule the Chief Justice said: "Mr. Harcourt, by his argument, would desire us to review the law upon this subject and to change the practice which has hitherto prevailed, and to establish some new rule. It is very true that cases sometimes occur in which a jury, being over-anxious to fully com- pensate a party, give damages so great as to induce the court to interfere. In the great majority of cases, however, I am quite satisfied with the common sense views upon which they act. Now, the rule is, that where a railway company undertake to carry a pas- senger and he receives an injury in consequence of their negligence he is entitled to receive compensation from them; and in assessing that compensation the jury should take into consideration two things ; first, the pecuniary loss he sustains by the accident ; secondly, the injury he sustain in his person or his physical capacity of enjoying life. When they come to the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved in- come. Mr. Harcourt says that that is not a ground of OF DAMAGES FOR NEGLIGENCE. 239 compensation. But it would be really monstrous that because a young man has only arrived at a certain posi- tion, though from past experience you can see with tol- erable certainty that he will within a reasonable time greatly increase his income, you are to exclude this most important element from consideration. So far from thinking that it should be excluded I think the very reverse should be the rule. Then as to the second ground. Undoubtedly, health is the greatest of all physical blessings ; and to say that when it is utterly shattered -no compensation is to be made for it is really perfectly extravagant. Then here we have a gentleman of good prospects, who by this accident is not only ren- dered incapable of following his profession, but is in all probability incapacitated for life. The jury under the circumstances have awarded him 5,000/., and I can not but think that such a compensation is within fair limits." In the same case Mellor, J., observed : " We have no means of ascertaining by a fixed rule what shall be the limit of damages in such a case. There is no principle which will apply equally tp animals, goods, and passen- gers. Damages in such a case must be left to the com- mon sense of the jury, assisted by the presiding judge. In the present case I can not say that the verdict is un- reasonable. The jury were undoubtedly entitled to consider not only the physical suffering of the plaintiff but the destruction of "his prospects."^ As the subject of damages will be found treated inci- dentally under the various fqregoing heads, it will be unnecessary to consider it further. ^Curtis V. Roch.ana Sy. R. R. Co., 18 N. Y. 534; Stock/on v. Frey, 4 Gill, 406 ; If^ade v. Leroy, 20 How. U. S. 34 ; Canning v. Williams- town, I Cush. 451. What damages a widow may claim, see Shaw v. Boston and IV. R. R. Co., 8 Gray, 81. See also G/-a»/ v. Cit)' of Brook- lyn, 41 Barb. 381. 240 TELEGRAPH COMPANIES. CHAPTER VIII. TELEGRAPH COMPANIES.^ Of the law of negligence as applied to telegraph com- panies, the aiathor has omitted to treat in his otherwise clear, complete, and excellent summary of this im- portant branch of the law, and I therefore add a brief sketch of the cases and rulings which have occurred in the courts of this country. Telegraph companies, like other public and private corporations, are endowed with their powers either by charter, or general and special statutes ; and the extent of their powers, and their liabilities for misfeasance and nonfeasance, must in general be sought for in the terms of these enactments. The cases are so conflicting, that it is difficult to lay down any rule as to the degree of responsibility and care for which they are liable ; some courts holding them to the extraordinary diligence of. common carriers, and others only accounting them responsible for gross negli- gence. The better opinion seems to be, that they are in the nature of common carriers, liable for negligence ' By the editor. 'It is gross negligence in the operator at a telegraph station to send over the wires a message in the name of, and purporting to come from a cashier of a bank, and to be dated at another station, at the request of TELEGRAPH COMPANIES. 24i and misconduct,^ and bound to use more than ordinary care and skill, in the transmission of the messages ; but that they can also limit this liability by special notice, in the shape of printed regulations, subject to the condi- tion that they can not limit it, so as to protect them- selves against the consequences of their own negli- gence. The cases which follow discuss the liability of the telegraph company for negligence, its power to limit that liability by certain rules and regulations, the party entitled to sue for the injury, and the measure of dam- ages which the injured party is entitled to recover. It was held, in Squire v. Western Union 'Telegraph Co., 98 Mass. 232, that if a telegraph company contract to transmit, without any special restriction of its liability, a message accepting an offer to sell certain goods at a certain place, for a certain price, and by its negligence in delivering it, the sender fails to complete the purchase, he may recover from the company, in damages, the dif- ference between the price which by the message he agreed to pay, and the price which he would have been com- pelled to pay at the same place, in order with use of due diligence to have purchased goods there of the same kind, quality, and quantity. In Leonard v. The New York, etc.. Telegraph Co., 41 N. a party known to the operator not to be such cashier, and presenting no evidence of authority to use his name, which message, addressed to a banking-house, held out such party as entitled to credit for a large amount; and this negligence occurs so within the scope of the employ- ment of such operator as to make the telegraph company liable to the person to whom such telegram was addressed, for the damages occa- sioned by such negligence. Elwood v. Western Union Telegraph Co., 45 N- Y. 549- 16 242 TELEGRAPH COMPANIES. Y. 544, the plaintiffs were manufacturers of salt, and had agents at Chicago and Oswego. The following dispatch was delivered to the defendant, to be transmitted over their line : " Send five thousand sacks of salt imme- diately." The agent of defendants negligently wrote the word "casks" for "sacks," and when the message was delivered, it read : " Send five thousand casks of salt immediately." It appeared that fine salt is put up in sacks of fourteen pounds each ; coarse salt in casks of three hundred and twenty pounds each. Before the mistake could be corrected the salt was shipped, and as there was no market for it, it was stored at the plaintiff's expense, and finally sold at less than the market price. The referee found the measure of damages to be the difference in the value of the salt at the port of ship- ment and point of destination, with the costs of trans- portation and interest, and judgment was entered in the court below for that amount for the plaintiff. The case was argued and reargued three or four times in the Court of Appeals, and the judgment below affirmed, with costs. Hunt, J., while repudiating the doctrine that such a company was chargeable with the absolute liability of a common carrier, added : " He is bound to conduct the business appertaining to this pursuit with skill, with care, and with attention. He holds himself out as possessing the ability to transmit these commu- nications, and he undertakes that he can and will trans- mit and deliver them with the expected dispatch." In Rittenhouse v. Independent Line of 'Telegraph, 44 N, Y. 263, the plaintiffs' message, instructing their brokers to "buy five Hudson," was transmitted and delivered by the defendant, " buy five hundred." Learn- ing of the error, the plaintiffs telegraphed again to their brokers, but owing to the delay so occasioned, the TELEGRAPH COMPANIES. 243 plaintiffs lost, by the advance in the price of the stock so ordered, $1,375. ^^ ^^^ held, that the plaintiffs could recover for this sum. Earl, C, said : "This case is fairly controlled by the case of Leonard v. The New York Telegraph Co. (cited above.) The defendant was liable on the ground of negligence in the transmission of the message ; and the negligence is proved by show- ing that it did not transmit the message in the form in which it was delivered to it. The burden was upon it to show that the mistake happened without its fault." ^ And in Parks v. Atlan. and Cal. Telegraph, 13 Cal. 422, the court went farther still, and held: "There is no difference in the general nature of the legal obligation of the contract, between carrying a message along a wire and carrying goods or a package ;" and that consequently telegraph companies were subject to the same stringent rules of responsibility as common carriers. But in other States this doctrine is denied, and their responsibility is compared to the carrier of passengers and the bailee for hire. In Western Union Telegraph Co. V. Carew, 15 Mich. 525, the court held, that tele- graph companies, in the absence of any provision of statute imposing such liabilities, "are not common car- riers, and their liabilities are not to be measured by the same rules." See also Sweatland v. Telegraph Co., 27 Iowa. To the same effect is the case of The New York and Wash. Telegraph Co. v. Dryburg, ^S Penn. St. 298, where the court decided that the telegraph com- pany was not a common carrier, but was liable for neg- ^"An error in transcribing the direction, and a consequent mis- delivery, is prima fade evidence pf neglect and want of care in the operator, and casts the burden of proof upon the company of explain- ing the error, and shovifing that it occurred without fault." Baldwin v. Vnitea States Telegraph Co., 45 N. Y. 744. 244 TELEGRAPH COMPANIES. ligence under the contract. The court also ruled, that the company were agents of the parties at both ends of the line, and that the receiver could sue for the injury or breach.^ In the following cases the right of these companies to restrict their responsibility by means of printed regula- tions, signed by the party sending the message, was dis- cussed and affirmed : In Ellis V. Amer. Telegraph Co., 13 Met. 226, the plaintiff, the receiver of a message, sued the defendants in tort to recover damages resulting from an error in the transmission of a message. The sender of the message had written it upon a blank, which contained as a part of the terms and conditions upon which the defendants undertook to transmit the message, a statement that every important message should be repeated, for which repetition only half the usual price would be charged, and that they would not be responsible for errors and delays in the transmission of unrepeated messages, unless a special agreement for insurance was made in writing to that effect, etc. The message delivered to the defend- ' But this was denied in Rose v. United States Telegraph Co., 6 Rob. N. Y. 305. In this case, a broker (the plaintiff) received a tele- graphic message, directing him to sell for certain parties in Philadelphia "five thousand barrels of petroleum "at a certain price. The plaintiff paid for the telegram, and in pursuance of it, made contracts with sev- eral parties for the sale and delivery of that much petroleum ; but the senders of the telegram informed him that they had only directed the sale of "five hundred barrels," and they refused to furnish any more. Petroleum having advanced in price, the plaintiff claimed he was liable upon his several contracts to the extent of $2,700, which he had paid for the difference as expressed in " oil bought" of the parties in Phila- delphia. Held, that the broker (the plaintiff) could not maintain an action against the telegraph company, as he was not liable upon the contracts made, and what he did was done as agent, and therefore he was not an injured party. TELEGRAPH COMPANIES. 245 ants was as follows: "City Cambridge ten (lo) men one hundred twenty-five dollars," and when the plaintiff received it, the message read : " City Cambridge ten(io) men one hundred seventy-five dollars." There was no evidence of carelessness or negligence except the error in the sum, which was made by the agent of the com- pany in transmission. Bigelow, C. J., held, that owners or conductors of telegraphs were not common carriers, and that it would neither be just nor reasonable that they should be held to the same standard and degree of dili- gence; but were simply liable for the consequences of carelessness or negligence in the conduct of their busi- ness to those sustaining loss or damage thereby. And that that part of the defendants' regulation which required the message to be repeated, was a just and reasonable one, such as they had a right to prescribe, and by the terms of which the plaintiffs were bound. To the same effect, Breese v. United States Telegraph Co., 45 Barb. 274 ; Mc Andrew v. The Electric Telegraph Co., 17 Com. B. 84, E. C. L. ;■ Camp v. The Western Union Telegraph Co., i Met. Ky. 164; tVan v. Telegraph Co., 37 Mo. 472. In Birney v. New Tork and Washington P. T. Co., 18 Md. 341, the defendants, through its authorized agents, received a message from the plaintiff, directed to stock- brokers in New York, directing them to sell certain shares of stock then in their possession belonging to the plaintiflf. The defendants never forwarded the message. It also appeared that the company had the usual printed regulations as to repeated and insured messages ; and that the plaintiflf paid neither a repeating nor insurance price. The court held, that the telegraph company was not a common carrier, but a bailee. That it performs its obligations according to certain rules and regulations ; that it has the right to make these rules. 246 TELEBRAPH COMPANIES. and that the plaintiff was supposed to know them, and was bound by them. The United States Telegraph Co. v. George Gildersleve, 29 Md. 232. Held, that the company had a clear right to protect itself against extraordinary risk, by proper or reasonable rules and regulations to that eifect; that par- ties sending messages were supposed to know them, and were bound by them ; and that if these rules were not complied with, the company, though bound to use dili- gence, was not bound to use extraordinary care and pre- caution. Dillon, C. J., in the well-considered case of Sweatland V, ///. and Miss, telegraph Co., 27 Iowa, 433, where all the above cases are critically examined and stated, held, that a telegraph company, notwithstanding special printed conditions exonerating it therefrom, is responsible for mistakes happening in consequence of its own fault, such as want of proper skill or ordinary care on the part of its operators, or the use of defective instruments ; and that a condition requiring the message to be re- peated is a reasonable one, and where this condition exists, and the party is bound to take notice of it, the mere proof of a mistake in the message, without some other evidence of carelessness on the part of the com- pany, will not make it- liable. The above is perhaps the fairest statement of the law as now concurred in by the majority of the courts in this country. In the case of Baldwin v. The United States Telegraph Co., 45 N. y. 744, the question arose as to the agency and liability of a second company over whose lines the message is transmitted, but with whom the sender has no special contract. The court held, that each of the companies, in the absence of evidence of a speciaK agree- TELEGRAPH COMPANIES. 247 ment or arrangement, either with the sender of the message or between each other, will be liable for his own acts, but not for the acts and defaults of the other. The facts were these: The lines of two telegraph com- panies terminated at Syracuse, N. Y. ; one leading from Ogdensburg to Syracuse, and the other from Syracuse to Rouseville, Penn : The plaintiff delivered to the operator at Ogdensburg a message addressed to his agent at Rouseville, requesting such agent to telegraph back to the plaintiff the condition of a certain petroleum well at Rouseville, belonging to the plaintiff; and at the time the message was handed in, the operator was in- formed that, unless an answer was received promptly, he, the plaintiff, would sell the well at a certain sum, which had, to the knowledge of the operator, been offered to him. The message was transmitted to Syracuse, and there received by the defendant, and by them transmit- ted over their line to Rouseville. By a misdirection, the message was delayed, and did not reach the plaint- iff's agent for some days afterward. The defendant's agent had no knowledge of the special purpose of the message. The plaintiff receiving no response, sold at the offer ; and it afterward appeared that the well was worth, and could have been sold at a higher price. The court, upon the ground that there was no agency be- tween the two companies, and no special contract between the plaintiff and defendant, held, that the de- fendant was not liable for this difference, nor for any damages arising from an under sale by the plaintiff. In regard to the measure of damages, see Leonard v. The New Tork Co., 41 N. Y. 544, and Baldwin v. United States Telegraph Co. INDEX. ACCIDENT. causing injury to another, actionable, though unintentional, 2. by bursting of a carboy containing nitric acid, 2, 3. from not disclosing the nature of dangerous goods, 4. from leaving about instruments of danger, 5. where from party's own act, but forced upon him by the act of another, 6. from a remote wrongful act, 7. fromleavingthings in aplace unattended, 8. to recover d^nages forTtnere must be proof of negligence, 12, 13, the fact of its occurring not of itself evidence of negligence, 13. where accident arises from a defect not detectable, 15. from getting out of a railway carriage when train not properly at the platform, 25 — 34. from a crushing-machine exposed for exhibition in a market-place, 34- from an unforseen and unusual occurrence, 34. when, not capable of explanation, 35, by mistaking a door upon a platform and falling down stairs, 22. by kicking a weighing-machine on a platform, 23. by falling down stairs which were nosed with brass which was worn, 23. by getting out of a train which was not drawn up to the platform, 25—34- from party not observing caution in circumstances of danger, 35. from an article falling from a window, 45. from falling of a packing-case, 47. presumption of negligence when to be made, 4; — 47. from sparks from a locomotive engine, 39 — 44. from falling down a cellar at a railway station, 65. from crossing a level crossing at a railway, 48, 51, 52. 250 INDEX. ACCIDENT— CcBtimeJ. statutory provisions as to level crossings at railways, 3 8-5 J. level crossing, not the usual way — permitted by company, 48. at a coal depot, 48. from the falling of a brick from a bridge, 49. by falling from a bridge insufficiently protected, 50. from a stand upon a race-course being negligently erected, 50. from falling down an unprotected well, 61, 62. from falling down a shaft, 61, 6z. from falling down a quarry or shaft, 6z. from •building material left in a road, 63. from 'falling down a shaft upon premises to which party had resorted in the course of business, 70, whilst upon premises on business or invitation of owner, or as visitors or licensees, 70-73. from railway line not being free from obstruction, 73. from leaving hatchway unguarded and insufficiently lighted, 74. from the handle of a wringing-machine in a public wash-house, 76. to a guest or licensee upon premises, 78-81. from animals, gz-ierz. when driver of a carriage the servant of a jobmaster, 115. liability for, when occasioned by contractor or his men, 116— 120. to servants, when masters not liable, izo-128. from negligence of fellow-servants, IZ8-144. ACCIDENTAL DEATH, as to compensation for, when caused by negligence, 213-229. provisions of stat. 9 & 10 Vict., c. 93. .213-215. when action can be maintained, 218. a pecuniary loss necessary, 218. may be derived from gratuitous liability, 216. no compensation for wounded feelings, etc., 215. loss of benefit of education, 217. loss of conveniences of life, 217. ACCIDENTAL INJURY, when actionable, 2. ANIMALS, negligence in keeping, 92-102. if ordinarily vicious, 92-95.. if domestic, 92. when entitled to keep a ferocious animal, 92. INDEX. 251 ARTICLES OF DANGER, necessary for care in using, 2-4. ATTORNEYS, negligence of, 145-154. power to compromise suits, 1 51-154. BAILEES, negligence by, 154-161. the various kinds of^ 155. BOOKING-OFFICE, delivery at, or delivery to the carrier, 167. otherwise if booking-office keeper carries on a distinct business, 168. liability of keeper of, 168. BRIDGE, accident by falling from, insufficiently protected, 50. BUILDER, employed by another, v?hen liable for negligence, 1 16-120. BUILDINGS, right of support of, 67-69. BULL, liability for injury from, in consequence of its running at a red article, 94. BUSINESS (DANGEROUS), extent of liability when authorized by the legislature, 38-44. CANAL, when there is a duty to fence off, 65-67. negligent management of, 81, 84. « CARELESSNESS, of party disentitling to recompense, 35-37. ,. , ', ^ CARRIERS (COMMON), negligence by, 161, who is a common carrier, 1 61-162. duty of, as to reception of goods, 163. extent of liability, 163-165. exemptions from liability at common law, 163-165. 252 INDEX. CARRIERS (COUMOti)— Continued. effect of fraud or concealment upon the liability of a carrier, 165, 167. when liability commences, 167. proof of delivery to carrier, 167, 168. Carriers' Act, sec. 5.. 167. sec. I. .169. sec. 2.. 1 70. sec. 3.. 1 7 1. sec. 4.. 171. sec. 5. .171. sec. 6..171. sec. 7. .171. sec. 8. .172. sec, 9.. 172. sec. 10. .172. Railway and Canal Traffic Act, sec. 7.. 1 72. when liability commences, 167. how long it continues, 179. to whom to deliver goods, 179-182. effect of Carriers' Act, 174-179. to what extent protected by Carriers' Act, 175-179. notice, under Carriers' Act when necessary, to protect carrier, 174-176. bound to deliver goods within a reasonable time, 191. bound to carry goods by usual route, 191. if consignee not ready to receive goods carrier must retain them a reasonable time, 191. after delivery, liability as a carrier at an end, 194. when carrier becomes a warehouseman, 194. though transit at an end, carrier may still be liable in such char- acter, 196. when liable for goods beyond the limits of his transit, 197. CATTLE (INFECTED^ ^/^ ' ' injuries arising from, 9. , " infected with disease, allowed to mix with other cattle, 9. injuries done to by dogs, liability of owner of dogs, 100, loi. extent of liability of railway company for damage to, 172, 199. CAUSA CAUSANS, the negligence must be, 7 INDEX. 253 CHEMIST. I ^»ye^nto|;jiaJ;ility for negligence, 208-21 1. C^^^ J*', COMMISSIONERS (PUBLIC), liability for negligence, 85. COMPENSATION FOR DEATH OF RELATIVE. 5ee Acci- dental Death. CONTAGIOUS DISORDER, injury from cattle affected with, 9. CONTRACTOR, when liable, and not the party who employs him, 1 1 8-1 20. CONTRIBUTORY NEGLIGENCE, in what it consists, 55-60. as to, 55-60. CUSTOMER, , accident to, when upon premises which are insecure, 70. DAMAGES, remoteness of, 8. when not the natural consequence of the negligence, 9, party guilty of negligence, when not responsible for the dam'age which may arise from it, 9. contributory negligence disentitles to, 55-60. through a horse getting through a defective gate, 67, 68. on account of accidents upon premises to which persons went upon business, invitation, or as visitors, or licensees, 70-76. measure of, for negligence, 213-239. difEcuIty in measuring, 224. when damage done to personal property, 225. when jury may take into consideration the circumstances attending the injury, 226. measure of damages from neglect of railway company to forward,^ passenger, 227. . ' when maker of a machine neglects to deliver it in due time, 228. where goods not delivered in time for the season, 229. for failure to deliver bales of goods in due time, whereby a mill is left unworked, 231. damages for loss of hire ot goods, 235. for non-delivery of marketable goods in time for market, 235. 254 INDEX. DAMAGES— Continued. where goods are lost by carrier, 236. for personal injury, damages may be given for incapacity to earn aii improved income, 237. DANGER (INSTRUMENTS OF). See Instruments of Danger DANGEROUS CIRCUMSTANCES, duty of persons to be additionally cautious, 35. DANGEROUS PLACE, passenger by railway leaving train at a dangerous place, 22-34. DANGEROUS PREMISES, when premises dangerous, the owner bound to take additional care, 51. DANGEROUS TRADE, ETC., sanctioned by the legislature, rule as to damages occasioned, 38-44. DEATH (ACCIDENTAL), as to compensation for, when caused by negligence, 213. See Accidental Death. DECLARATION OF VALUE, under Carrier's Act, when to be made, 174, 175, 178. DELIVERY. /s\ when and at what place carriers bound to deliver, 179, 180. DOCKS, / negligent management of, 81-84. DOG. when may be kept though ferocious, 93. notice to beware of, 96. liability for when tied up, 96. liability of owner of, for injuries done to cattle or sheep, loo, loi. ^^-~^ J — _ ,. — — , — — J — — — — *^ DUYY, NEGLECT OF, ^ * no liability with reference to, if another does a dangerous act, and is thereby injured, 25, 26. EVIDENCE, affirmative evidence must be given of existence of negligence, 12, 13- INDEX. 255 EVIDENCE— C»»//»«^