t * ^ «*'^, Vg "* 4 % ' ^1* \ - ^ ^%\ ' ^ ^ V' ■ QJortipU IGatu ^rlyool ICtbrarg Cornell University Library KF 1250.Z9S641 V.2 Notes on torts. 3 1924 018 844 815 .// / ' A- . t. ^ ... r>— u ^^ Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018844815 Pages 60 to 146 VOLU''E II CHAPTER I. -- LEGAL CAUSE. Baili ffs of Ro raney T^ars h v. Trinity House. Action for negligence. Declaration alleged negligent navigation of a ship of defenda,nt 's "by their servant, whereby it was wrecked and ran foul of and injured sea wall for plaint iff 6. Pacts were : A ship of defendant's, through negligence of captain, struck on a shoal three-quarters of a falle from the wall in question. It was blowing hard, crew lost control, and vessel was driven against the wall, doing the damage complained of. Contended for defendants that their negligence wap not proximate cause of the Injury. HELD, that negligence of defendants, to render thera liable, must be not merely one of the causes of the injury, but the proximate cause. It \ms so here. Immediate result of the negligence was to put their boat in such a condition that wind must necessarily drive it directly on the wall. Judgment for plaintiffs. In thise cases we must assume some wrongful act of defendant, and damage to th-^^ plaintiff, and than see whether the act' is' the legal cause of the damages. Wind and tide carried the boat against the wall. Bacon's Maxim : In jure causa proxima, non remota, spectatur. This must be construed liberally and not literally, else it will mislead. It would seem to include natural elements as well as human antecedents, and so is misleading. Logicians would say, with J. S. Mills, "The cause of an event is the sum total of all its antecedents." That, of course, would bar plaintiff's action here, for plaintiff would have no right to pick out one antecedent and declare on it as the cause. In this case the judges looked for th^ nearest 'n^ongdoer, but the principle of the case is that casual connection' between the tortious act of defendant and the damage is not necessarily broken by the mere intervention of ordinary natural forces. This point was alS|0 ruled in 50 Fed. Rep. 810. This was a case where a telephone company had a right to put up its wires. It left the wires acrdss the street a few feet from the ground for several weeks, so that people passing struck it. A man was injured in a thunder storm. The defendant (Tel. Co.) was held liable. Beven on Negligence, p. 73-4, says the operation of natural forces is the inevitable result of human actions. ^i2._£2.2.Sii_l^_^Il®iliM » P* ^* ^Tass., 1867. Tort. Plaintiff was rifling in a sleigh in Boston. One Baker was also out riding' . Defendant's servant, by negligent driving, ran into Baker's sleigh, smashed it and frightened horse ho that he ran away, ran into plaintiff, broke his sleigh, hurt his horse, and -2- injured him severely. Defebdant demurred, on ground that his negligence waa not proxiinate cause. HELD, that a man is responsi- ble for injury resulting from his negligence, when it is a natural and probalDle consequence of his negligence ; that is, when it might reasonably have been anticipated. Here defendant started Baker's horse by his negligence. A Iv'ATTJRAL AIJD PROBABLE CONSl- QIJEITCE WAS CERTAINLY THE INJURY TO PLAINTIFF. Lemurrer overruled. Some result of this general character was sure to follow. The case stands for the point that casual connection is not necessarily broken by the mere intervention of the usual and natural actions of animals. Here there was no intervening responsible human agency, Scott V. Shegherd_^ p. 8, 13 Geo. III., 2 Wm. Blackstone, 892. Trespass for throwing a lighted squib against plaintifif, whereby his eye was put out. Pacts : Defendant threw a lighted squib into the market house, where there v/as a large crowd ; it fell on the gingerbread stand of one Yates ; one Willis, to prevent injury to himself and the goods of Yates, instantly threw the squib across the marken house, where it fell upon the stand of one Royal ; he immediately threw it away ; it hit the plaintiff and put out his eye, HELD, that trespass lies. The injury was the NATURAL AND PROBABLE. nONSEQ.UENCE of defendant's act ; and as defendant's act was ORIGINALLY UNLAWFUL, he is responsible for resulting damage, Willis and Royal, acting as they did in self-defence and on the spur of necessity, cannot be considered as free agents tsJcing blame off defendant. Judgment for plaintiff. This case is known as the squib case, and is one of the most famous in law. For ii-'mediate and direct result of an act, trespass a^s distinguished from case was the proper remedy at this time. Blackstone, J., thoiight tliat no immediate injur;;^ passed from the defendant to the plaintiff, and so trespass was not maintainable. The case was sent up wither for the court to look at the facts as jurors to see whether they would find for plaintiff, or to get their opinion as to whether under these facts a jury could find for plaintiff on a correct charge as to the law of the case. There is no doubt about '-^ the external acts in the case ; the only thing in doubt was the mental state of the actors, --whether they acted instinctively or as reasoning m.en, whether the intermediaries v/ere free or compulsive agents. The opinion of the majority stands for the point that casual connection is not necessarily broken by the intervention of the instinctive or irresponsible act of a human being other than the plaintiff or defendant. The nearest human wrongdoer was the defendant. -3-- In Laidlaw v. Sage, 30 N. Y. Supp., 496 (reported also in 80 Hun., 550, and noticed in Harv . Law Rev., Jan., 1894, and Dec, 1894, p. 225), the defendant requested the court to charge that if his act v/as involuntary or such as would instinctively result from a sudden and irresistible impulse in the presence of a great danger, he was not liable. The cou.rt refused, and charged that the liability depended on whether or not the act was voluntary. The charge was later held bad ; and the court said the charge should heve been the one requested by the defendant, for the act might be voluntary and still not the result of an intention based on reasoning. An instinctive act may be volunttiry, though not the intended result of reasoning. In the squib case, three J.udges thought it an impulsive and instinctive act on the part of th*^ intermediaries. Blackstonfe thought that the intermediaries had time to reflect and accordingly he would have held each intermediary liable. See Pollock on Torts, 2nd ed., pp. 158, 540. In 50 N. H. 420, one boy twisted another about and sent him whirling against a third, who pushed him violently aside, injuring him. The court held that the third boy acted instinctively and did not break the casual connection. In 14 Minnesota, 81, a team was negligently left untied and ran away ; some men tried to stop it, and in so doing, frightened the team so that it injured plaintiff. The court held that the acts of the intermediate agents was reasonable and not culpable, and so did not break causation from the original wrongdoer. Pollock, 2nd ed., 158, 540, inclines to take Blackstone'8 view of the facts in the squib case. Jdnes Y..'_Boyce^ p. 13, 1816. I. Starkie, 492. Casual connection is not necesaarily broken by the NON-CULPABLE ACTION of the plaintiff himself, when that action is IITOUCED ""V" AV-- r^ .^Tf--R j^^zIjY PESULTI^^"^- "tpt'^t D-R^-^T^TT-n^ t^T i y TORTIon^ ACT, Plaintiff's act .-was an act of REASONABLTS GAR'S AND PRUB'SJTCE. See 26 f^nn., 283, 285. Wooley V. S covin. p. 15, 9 Geo. IV, 3 TTanning & Ryland, 105. Plai tiff's loss of self-possession was occasioned by wrongful act of defendant, and therefore defendant is liable for all that followed. We must assine that defendant v/as in fault. Probably the fault was so plain that no instruction as to it was necessary. See Bevai on Negligence, 137, Here als. if plaintiff had not done anything he v/ould not have been hurt. The test set up in a case like this is DID PLAIMTIPT LOSE HIS PRESENCE OF 'aND SO AS TO BE UNABLE TO REASON. -4- The case stands for the point that the casual coBHection is not broken by the non-ciQpable action of plaintiff himself, v/hen plain- tiff's action naturally results frori defendant's tortious act. For instance, as in this case, plaintiff acted INSTIKCTIirELY BY REASOK OF FRIGHT PRODUChID 5Y DSFSIIDANT'S TORT. There is a very full discussion of this in §7 Am. Rep., 386 IJote. pg.^y. V ■• ^- • y- Central R. R., p. 16. Mass. 1859. The last human wrongdoer test would make defendant liable in this case, so if we take that rule, we must admit certain exceptions. Bish. NonrCon. Law, Sec. 44, makes the point that the act of the last human wrongdoer IVIAY HAVE SVmT ITS FORCE. Judge here had a faint foreshadowing of the test of REASOl'TABLE ANTICIPATION OF PROBABLE CONSEQUENCES. Great many authorities sustain this. Contra, 54 N. Y. 500, See Goolej'- on Torts 2d ed., p. 79, Note 2. See as to warehousemen, I. Grajr, 277-291 ; Tenn. 699, almost contra to two last cases, is 35 N. E. Rep. (Ind.) 703. First two warehouse cases, and reference to Coolej'- say : Deft's negligence was in a certain sense concurrent in point of time? See David v. Garrett, 6 Bing. 716, leading Emglish case. Noted on p. 26, Smith Cases or Torts. This last English case is referred t' in L. R, 7 Q. B. Div. 511. "Loss haipened while the wrongful action was in force, and was attributable to the wrongful act." 5ilraan_v_^_N02es_j_ p. 18, N. H. 1876. The true ruie is, that deft, is liable if the damage is the natural consequence of his negligence, and SUCK AS MIGHT REASONABLY BE AlfTICIPATED, New trial. The "bear case". The lower court instructed that the "but for" rule must be the test. The Supreme Court disagreed with this, and set up the probable consequence rule. What is the difference between Mill's definition of cause, and the "but for" rule ? According to ITill's rule, all antecedents are equally the cause ; you have no right to pick out any one as the cause. The objections to this ruie are that remote antecedents would be considered causes ; that conditions would be taken for causes, and that deft is held liable IF THERE IS A TORTIOUS ACT OF HIS I"^] THE CHAIN OF CAUSATION, NO MATTER HOW FAR BACK IT IS IN THE CHAIN. The "but for" rule is rejected by the great weight of authority. Ryan_v_^_N_j__Y_^_Centr^l_R_^_R_j__j_ p. 27, New York, 1866. No trial by jury. The judge non-suited the plaintiff. The court supported the non-suit on the ground that wind, etc., are accidental circumstances which the defendant is not responsible for. The Romney v. Marsh case would have been decided differently -5- if this rule had been adopted there. The true view is that deft must notice the wind and other circurastances and that he is liable for the probable consequences of his negligence. GREAT WEIGHT OF AUTHORITY AGAINST THIS CASE. Apparently it decides that difference in oi-raership breaks casual connection. See 6P. Hun., 181, which is decided more correctly, and is really against Ryan case. Denying Ruan's case, we can say that diversity in ownership of buildings burned or the lands traversed by fire, or mere distance of locality, or the period of time between the burniig of the building, So not necessarily (meaning in all cases) relieve deft from liability. See also 31 Hun. 495, Potter J. (5 Hun. 181), carries our Ryan's case to reductio ad absurdum. See as to right of insurance company over against negli;;ent party, May on Insurance, ed ed., Sees. 453-455. In 49 }?. Y. 420, at 4'^9 and 431, the ease is answered, but not overruled. ^ll-Y.:L-.i.lttlL'^j. P- 31. -lichigan, 1874. Judge here carries out rule in Ryan's case to its logical and absurd conclusion. The argument of Ryan v. the ¥. . Y. Central R. P^ that to hold the defendant liable might ruin him, was answered by saying that it was better to ruin one wrongdoer than that innocent parties should have to bear a part of the loss. Lawrence J., in Pent v. Railway Co., p. 33, Ills. 1871. Lawrence, J., considering Ryan v. N. Y. Central R. R. Co., which holds that where there is a fore communicated by a locomotive to houEe of A and thence to house of B, the latter cannot recover, HELD, that this distinction rests on no maintainable ground. The only rule, just, is to determine whether the loss was a 7'ATURAL CONSEQUENCE OP THS ITEGLIGEUCBJ, which any reasonable person might have anticipated--that is, whether the negligence was a PROXIl^fATE CAUSE. Judge here says, only question is, shall innocent persons suffer, or him whose negligence '^as proximate cause. Milwaukee 8c St. Paul R. R . v. Ke llogg, p. 36, U. S. 1876. The instructions to the jury were based on the probable conse- qxience rule. This rule has the greatest support among the authorities and text writers. ^2g:S-^l-g:l' ^' ^-^Q^Q Shore &c_. J R- R» Co., p. 30, Penn. 1877. The judge uses "natural" and probable" as synonymous. It is well to guard against this, as some courts use them in different meanings . In Kuhn v. Jewett, Equity 647, decided by th^ Vice-Chancellor, v/ithout a jury, an opposite result was reached. See Note p. 42, Vol. II. 5ll® ®!ll:^^l_l:L_^^i§I^i.ill > ■6- 42, "Exchequer, 1850. Pollock, G. B.: "I doutt whether a person is responsible for all the consequences of his negligence. I consider the true rule to "be that a person is expected to anticipate and guard against all REASONABLE CONSEQITEIKCES , "but not against those which IW REASONABLE ILAI^ WOULD EXPECT TO OCCUR." Compare Pollock's statement v/ith next case. ^';ilil^_v^_London_&_S^_W_^_Ry^_Co^^ p. 43, Conmon Pleas, 1870. * * * This rule may be useful in determining negligence, but when negligence is once proved, party guilty of it becomes liable for its natural consequences, whether he could have forseen them or not. Very important case. The court distinctly rejects probable consequence rule in legal eause. It says it is important to determine negligence, but after negligence is settled, deft is liable for the natural consequence of his act, whether the result could have been forseen or not. Compare also with Ehrgott v. Mayor of New york, Smith's Cases, p. 54. Marvin y.^Chic ago & c Ry. Co^^ p. 45, Wisconsin 1891. Plff 's land was two and one -half miles away, and th^ property destroyed was a cranberry patch. The fire was caused by deft's negligence five days before it extended to plff's cranberry patch. An extraordinary wind came up after the fire had started. The case can be defended and distinguished frora the Romney v. Marsh case, in that in the Romney case the wind was blowing at the time, and here it was not, but came up extraordi probable anticipat nary wind, a whirlwind, consequence theory, ;ed. later. Also here it was an The judge thought that on the this result is not one to have been Poeppers V. Mifisouri jScc. J R. R. Co. , p. 46, Kibsouri, 1878. The upper court here thought "natural" menas reasonably to be anticipated ; it may also be used to mean that a result has transpired without any departure frora the usual operations of nature, and without any extraordinary departure from the usual courses of nature. Prom these two statements or cases we can see that the changes of the v/ind, either in direction or velocity, does not necessarily or always break casual connection. ordinarily a change of wind is a consequence reasonably to have been antici- pated as probable. 51 Ped. Rep. 658 at 666 : A not unusual change in the wind was not a break in the causation. The wind was not unusual, and so the injury was held a proximate result. Hill_v^_^insar, p. 48, Mass. 1875. If it was probable that injury in some form would result from deft's act, then deft was negligent, and it is not necessary that injury should have been forseen II; ITS PRECISE FORM, ho long as it now annears to have been a natural and probable consequence. -7- Colton, J., when he says "natural and protatle" evidently means natural only. This case modifies the probable consequence rule to a certain extent, holding that it is not necessary that injury in the precise form in which it in fact resulted should have been forseen, and that if injiry in SOIiTE FORM SPIOULD HAVE B"EIE}J PORSIEN, deft's act was negligent, and defendant is liable if it norw appears that what ir; fact happened was a natural and probable consequence of dert's riegligence. Scheffer v. Wash ingto n,&c. , R. R. Co._, p. 49, U. B., 1881. 15 'JVallace, 580, held that a nan's suicide \7hile insane was not his own act in the sense in which that term is used in insurance policies. Insurance policies provide that in case the insured dies by his ovm act, the money payable on the policy shall not be recoverable. This holding is inconsistent with Miller's statement of the law in the principal case. To be consistent, the court should have said that Shheffer's death did not result frori his own act , The court adopts the probable consequence rule, holding that insanity and suicide were not a result naturally and reasonabljr to be expected from the injurj"- received. "It was not the natu^'-^l amd probable consequence, and could not have been forseen in t he light of the circumstances attending the negli^jence of the officers in ch&rge of the train." The PROXIT.IATE CAUSE of the deat:/ of Scheffer was his own act of self-destruction. It is doubtful if the case s liould not have been committed to the jury in the same manner that Bishop v. The St. Paul City Ry. Co. was submitted. Bishop V. St. Paul City Ry. Co., p. 52, Minnesota lvS92. If the probable consequence rule had been applied in this case the case xould not have gone to the jury. But the court did not apply that rule. They held the defendant liable for all results ARIsilJG NATURALLY FRO^^ Tin DbTFT ' S ACT. They say, "The injury received at the time of the accident was the proximate cause of the paralysis if it caused the disease in the course of which, and as a result of which, the paralysis followed," The case sis irreconcilable as a, matter of law with the precedirg cases. Here the case went to the jury ; in the preceding case the decision was on a demurrer. Perhaps the reason why in the preceding case it as ntt given to th?? jury is the fact that it is difficult to prove the origin of insanity. Possibly the court thought that fraud would get in if the case were left to the jury. Warl, J., in Ehrgott v. "ayor of Nev/ York, p. 54, IT. Y., 1884, rules holding a man liable for those results which he ought to have forseen is useless. The true rule is t-hat a wrongdoer is respon- sible for the KATURAL P2^D PROXI?IATS COITSEQUT^ilCES OF HIS ::iSOO:iDUCT. "That such consequences are is generally to be determined by the J ury . Here ib another rejection of the probable consequence rule. A woman in the earlier stages of pregrancy, so that it is unknowrj ^r,„ ^^n^-rr^v T-,v.,^o>- _fjjriages owing to her condition. -8- ■Eten_v_^_Luvster, p. 55, K. Y., 1875. The action was "brought under +he statute allowing a man to recover for any damage he may have suffered. The case differs from the other cases we have had in not being a question of neglieence. The case does not adopt the prohjable consequence rule. The court held that deft was liable for such damages only as were the direct consequence of his act. In an action on a statute, the court here applies a different rule from what It generally applies In common law negligence. §i\i5.i2_l^_?.?iH.^l5£s_and_Archer_,_ p, 57, Warwick As si zes , 15 Ellz. A criminal case. It was long held that a civil action of tort for the death of a human being could not be m.aintained, but this is changi^d now (generally by statute, sometimes by decision). Todaj^ In a civil action the death, o^" the daughter v/ould be held to be thB result of the father's act In a case like the principal case. The result is perhaps not to be forseen, but the court would not adopt the probable consequence rule in the case of a malum In se. Casual connection is not broken in crimes by the act of an Innocent agent, or by the fact that an act intended to fall on one person falls on another. This is thf^ doctrin*^ of specific; Intent. Harrison v . Beekley, p. 60, So. Carolina, 1847. In disposing oi the case the judge below instructed the jury to follow the natural and probable consequence rule. The court above said on appeal that thla v/as too favorable for the deft. It held that the consequences must be PROXIMATE AND NATURAL. It Is said that by proximate vms meant that deft's act must predominate over other causes. See p. 64 of Smith's Cases. This definition is not found elsewhere. The court said that by natur&.l results is meant, not results -.T^ich could be forseen, but those which FOLLOWED DIRTSCTLY WITHOUT AJ^f GREAT DEPARTURE PROM THV] COiJRSE OP KATURE. Results might be natural lookin,-^ backward, but not pr citable looking forward. The sentences setting forth these ideas are among the most Important we have on the subj ect. I. Sedgwick on Damages, 8th ed. , Bee. 112, has something to say which bears directly on Bardlow's opinion in Ila-^rison v. Berkley. Salisbury v_. ?'erchenrod.erj_ p. 67, Mass., 1871. Somewhat similar to Queen v. Saunders. Court declined to apply "probable consequence" theory. Act here is malum prohibitum. Ail courts would probably agree with 0,ueen v. Saunders, but some courts would not follow Salisbury v. Herchenroder . Coirts fre- quently fail to apply"probable consequence theory" or rule as a liability in cases where deft's act is Illegal in the sense of being specifically forbidden by law, especially if the Illegality be of some magnitude. If deft's act had n-tt been illegal, he would not have b-en responsible if he had used due care. Thy responsible here ? -9- Pollock, ?nd ed., p. 23. "ConniDsion of an act specifically^ forbidden by law or omission to perforin any duty specifically imposed by law is generally equivalent to an act done 'vith int'^nt to cause wrongful injiiry." Deft's illegal act v;as continuous right up to the time of the injury. ^ii^3[_YljL_f £^*_JiI!§.e2;_R^_Rj__0o ^, ZjL_^i-_l®82 . Fere a third perscr. failed to interfere. Failure of third person to stop consequences of deft 'a negli£:ence does not relieve deft. failure of person here -^:as not a tort. "ee Innes on Torts, sec. 30. Compare Hofele v. N. Y. Central R. R. Co., p. 94, and Loker v. Damon, p. 95. Smith's Cases on Torts. Ai5.?;?i^^®^_^:-_T.°Z2:_^llJjl?.'!Z_^^?.li.®jL P' '''^» Indiana, 1888. Here the human agent xjame in and did an act rf f irmatively, which act was an Intentional tort, and not merely an act of omibsion. Such wilful tortious intervention generally breaks chain of causation, if deft's act has ceased to operate actively. Yi2§:^^_l^_!S[li5.°2.^?.i. P- "^2, 47 Geo. III. Here it is an illegal consequence for *rhich deft is not liable. On 2nd ground judgment affirmed. Rule refused. In some cases, as in this, special damage m.ust be proved. The F!mpl03''ed discharged the plaintiff when he had no right to do so, so the ccurt said his remedy was against the employer. The discharge the court said was not a legal consequence of the a JLeged slander. This case is a possible but doubtful exception to the last wrongdoer rule. Iiy5:9.^_l^_?IllS^ljL P* '^*» I^'o^se of Lords, 1861. Wensleydale differs in this case from the view taken in the preceding case. He doubts whether the consequence must be legal, to allow of spefiial damages. Adopt in^ this view, one would have to make an exception to the last human wrongdoer, and hold that if earlier wrongdoer intended that latter wrongdoer should act, the earlier ought also to b-^- held if he for»aw the act of later wrong- doer, or if he ought to have fors^-en the cornraibsion ot th latter' s tort as a result of his own. Plff would have an action against wrongdoers. Professor Smith agrees with Lord Wensleydale. Binford_v^_Johnston.j_ p. 75, Indiana 1882. *•* Here defeiidatt was bound to anticipate ordinary conduct of children, and it cannot be said that anything that happened was unnatural or improbable. Further, deft's act was UNLAWFUL BY STATUTE, consec[uently he is responsible for all natural and proximate consequences. -10- Act here wa:; more tha^^ negligent, it was illegal, specifically fortidden by st.atute. In such cases the courts go hpyond the probable consequence rule. Deft is liable for results MORE RiaiOTlS FROt^ TIR ORIGINAL WRONG TT^A^^ ITS IS III CASE OF A SIMPLE ACT 07 };eGLIGh:1TCE. Casual connec- tion was not broken, as the intervention of the ^ boys ought to have been forseen, and the children here could hardly be called free or responsible agents. ___Carter_v^_Tonne, p. 78, Mass., 1870. Court regarded case as if parfent had bought powder in f •'rst place, and given it to boy. ACT OF SELLER HAD SPENT ITS' FORGE WHEN POI'/DER PASSED OUT OF CONTROL OF BOY INTO CONTROL OF PARENT. Act of seller v/as no longer a predomiraiit cause ; predominant cause v/as act of parent. Here intervention of third person does break casual connection, althoUt;;h the intervention would not be a tortious one. Innes on Torts, 128. This case differs from Wylie v. West Jersey R. R. Co., in that ThE INTERVEITING PARTIES OWED A DUTY TO PLFF TO LOOP: AFTER HIM. 7 Binghan '^ll : If A utters slander* and B repeats it, A is not liable for special damage to reputation. If A asked B to repeat it, A would be liable, B being only his agent. If A utters it with the intent that B shall repeat it, and knows that B is likely to do so, A is liable. If A was indifferent as to v/hether B repeated it, but knew that B would probably do so, the authorities say that A would not be liable. But in reason A ought to be liable^ The latter two cases are exceptions to the last human wrong- doer theory. Does it save A from liability if B repeats the story with malicious motive ? That 've shall consider later, in Mars v. The Caixal Co., p. 83 of Smith's Cases. Illid.ge_v^_Goodwinjj_ p. 80, 5 Carrington v. Payne, 190, 1831. Very freque :t^y cited. Facts are not fully stated. Judge assumed that leaving a cart unattended in street was evidently negligence. Would be held generally today to be onl}' evidence f ro^ which jury might find negligence; Case does not show whether third person's act was wilful or negligent. Nisi Prtus case ; judge did not speak with as ^\v>gY: deliberation as if he v/ere writ in,; an opinion on appeal.. "Any" in the last line of opinion is too strong. Sfte Beven on Negligence, 1st Ed. 960. li?iS?._l^_^ti.?iIl*l5—![° 11^5-1. ^^''ass. 187-^. • • • The test is WHAT 'VAS PROBABLE Al'ID TO BE .a1:TICIPATED ? It is a question for the jury. It is i^'nmaterial whether act of Lane was negligence or not., as deft pugbt to have apprehended. Exceptions overruled. Important case. Frequently person who did last wrongful act is the party liable, and here it v/as left to the jury whether or not the w^-ongful act of third person was reasonably to have been antici- pated from deft's negligence. Compating this case with Binford v. Fohnston, supra 75, a. boy is responsible for some acts at IP. years -11- of age, and not responsible for other acts. Her-^ court supposed Horace Lane to "be responsible. Plff might have had renedy against Horace Lane. Court laid particular stress on fact that Korace Lane did not intend to do harm, although he dia the act. Here, deft is liable, notv/ithstanding intervention of a third person who is regarded as a wrongdoer ; and third person ma.y he liable also. ^i?:?l^_l:._^5.1§:^Li_^Ji^son_Ca£al_Co^_^ p. 83, IT. Y. 1889. * * * Def t • s act in leaving the engine was not the cause of an injury which could have been f orsp^en as a natural and probable consequence. Intervention of criminal act of another party BTSITG Al' IT-TERVENTIOE MilCH WAS NOT PROBABLE, breaks the casual connec- tion. Landon, J., di sented on the ground that whether or not deft was liable, depended on whether or not the intervening, act of third party was a probable consequence. Majority held that malicious intervention was sucli an unusual thing that they were almost in- clined to say it breaks casual connection, even though sometimes it should have been forseen. Smith does not know whether the court intended to go so far ^s this or not ; he thinks the case is certainly not so broad as that, though the principle generally holds good. p_astene_v^_AdamSj_ p. 87, Gala., 1874. The negligence of the deft continued from the time that the lumber was piled until it -/as throvm down. Supposing that the third part;- was negligent, who ?\ras the last human wrongdoer ? In answering the question, note the def t ' s act was a continuing one. mi^i.i_°t_^aill§iZm^_l:L_^2.£^i His. 1889. The i tere i third party here was negligent, NOT WILFUL. The negligence of the village began with the finishing of the sidewalk, and continued to the time of the accident. So both were concur- rent at the time of the accident. '^ere a city or town is liable under a statute for damages, because of the non-repair of a highway, there is a great difference of opinion as to the liability. In some states the plaintiff can recover only if the damage result solely from such negligence. This is held in Kb, and Mass. 68 Me to 155, That view is rejected i^^ many states, and is reject- ed toy Professor Smith. Mass. and Me. give a different construction to highway statutes from that which they give to other statutes. In 146 Mass. 46-7, there is this signifixzant sentence by Judge Holmes : "The general tendency has been to look back no farther than the last v/rongdoer, ESPECIALLY WHEN HE HAS COMPLETE AITO INTEL) LI GENT CONTROL OF THE GONSEqUElTOES OF THE E/P.LIER TOONGPUL ACT." In 38 N. E. Rep. 694, a very recent case, somethinc like Pastene v. Adams, suit was brou-'ht against the third party. HELD, that the fault of this third party broke the casual connection and his act was the proximate cause. -12- See Clerk v. Lindsell, 380 and 383 on contributory ne;:licence. Coutts are sotoetiraes Inclined to regard as a legal cause that one of two causes which "began to operate latest, and was in active motion at the moment of the dagger, Mathews j7_^_London_Street_Tr p. 91, Q. B., 1888. It is definitely settled now that the passenger ig not so iaentijfied with his driver that the negligence of the driver hecomes the negligence of the passenger. Both drivers were assumed to he negligent. The jury found a verdict for deft because the Judge had told them that to find for plff jrhey must find that the actident was due solely to the negligence of the tramcar driver. The case is to be decided just as If two men who were out driving should meet, and ^j the concurrent negligence of the two, they should collide and injure an innocent passerby. The cohcurrent negligence of another nlW not excuse the deft, if deft's wrong is one of tv;o or more concurring efficient causes (other than plff's faillt) which co-operate directly to produce the injury, deft is liable. If deft's act is the proxiinate cause, not neceaaarily the whole proximate cause, but a part of it, he is liable even if his p,art is much the smallest part, Biish. IsTon-Con. Law, sec. 39, Note 7, Beven, p. 73. Take this case : Two dogs owned by flifferent men killed some of the sheep in a flock. Each owner in the absence of statute is liable only for those killed by his own dog. This is not a case for an application of the principle just given above, *? Shearman & Redfield on Hegligence, 4th ed., sec. 638, Suppose A is walking on the street and is injured by the simul- taneous negligence of B and C, A using due care. A sues B, B says "C was negligent also, and so I am not liable." One of two negligent persons is not excused because there was another ; either is liable for the whole , damage, "^rhether they are liable jointly is another question, Neither one can ask the court to apportion his share of the liability. Plff, however, can get but one satisfaction. As to joint v/rongdoers, see Cooley on Torts, 2nd ed/, 153-152. Smith's Gases, Chap. 16, pp. 669-718. If there is concert of action between the wromgdoers thejr may be sued jointly or separately. See Smith's Cases on Torts, p. 669, ^JThere there is no concert of action, they may be sued ser.arately. In the principal case, the tramcar driver and plff's driver were simultaheously negligent, Hogle y. IT. Y. Central & C. R. R^_G0j^, p. 94, N. Y. 1882. * * * plff .perhaps would , not .be. bound to use every possible effort to suppress th^ fire, BUT ITS SHOULl") DO \TOAT '7AS REASONABLY PRACTICABLE. J^ew trial. See Kellogg v. The R. R. Co., p. 198 at 204-5, a case where plff could have prevented the injury. -13- Loker v. D^jnon, p. 95, Mass. 1855, * * * If plff had not known of the broken fence it would be different. He did know of it, and should have repaired it, and hence cannot recover for subsequent damag:;es. ^2.l£_t°_52.S.l£_l^_Li.AL_Q.2.i.jL_5:D.^J[i°^£II_lj.J2^2iljL I Wylie V. R. R. Co. ante 69, a third person had an opportunity to stop the fire, but did not do so, yet plff recovered. Here plff had opportunity to stop the fire. Principle here applied is called "rule of unavoidable consequences." Damages, the continuance of -;hich plff might have prevented by his ovm reasonable care cannot he recovered, for law will not permit plaintiff to ascri"be the whole of his damages to deft, but he still has an action for damages which occurred before he could stop them. I. Sedgwick on Dam. 8th ed. sec. 204. Rule is one of limitation on amount of plff's recovery. Post, pp. 191 and 198, 9 Harv. L.R. ,8a STPMARY OF LEGAL CAUSES . It is the most important subject in the 2 volumes on Torts, Every case raises the question of legal cause, •Bacon's maxim : "In Jure causa proxima non remota spectatur" furnishes no assistance in dete'-minir'^ what is the proximate and what the remote cause. Bacon said,: "It were infinite for the law to consider the causes of causes, and their impulsion of each other ; therefore it contenteth itself with the iramediite cause, and Judgeth of acts by that, withoi:it looking to any further degree. This is not to be taken literally. Se-^ Cooley on Torts, 2 ed? p. 88, The proximity of the cause has no relation to contiguity of space or time. See 4 Gray 449 ; Beven on Neg. 74, 83. The theory of ^^ill is impracticable, for as before shown, it holds either all or none who were in the chain of antecedents. The "But For" rule : It ia similar to Mill's rule , but it allows one antecedent to be singled out. It is objectionable because it allows a remote human antecedent tc be held liable though there v/ere others more v/rongful and more proximate. It would allow the plaintiff to trace the matter back until he struck a capitalist. The rule is rejected by the great weight of author- ity. A case illustrating the use of this rule is Gilman v. Uoyes, p. 53 of these notes, THE "PROBABLE CONSEOUEITCE" Rule : Deft is liable for such consequences only at a reasonable man standing in deft's place at the time of committing thf^ tort ought to have forseen as likely to happen. This rule is the most ptjpular one. The first exception to this rule is, deft's liahillty is not limited to probable con- eequences in cases where deft's act was illegal in the sense of being specifically forbidden by law, especially if the illegality were of some magnitude. Salisbury v. Herchenroder, p. 67 in the Cases. The second exception to the rvCLe is that it is not necessarv that damage in thf. precise form in which it happened should have been forbidden. If deft should have forseen that some -14- daraage could happen. Hill v. Winsor,, p. 48 of the Casetj. The third exception to the rule is : Where defendant intended to produce the specific result ^xhich actually followed, deft is liable, although that result w&s not proLatle. The fourth exception to the rule is, that ^^/here the act is an intentional act done frora a consciously wrong motive (that is, immoral acts, though such acts would not come within the pi rview of the criminal' law, edft is protably liahle, though def t ' s act is not specifically illegal. See L Bish. Hev/ Crim. Law, Note to sec. 327. These four exceptions are in the direction of extending def t ' s liabilitv. It is possible that additional exceptions to tl.e probable conse- quence rule are, fifth : The doctrine of Vicars v. Wilcocks, p. 71 of the Cases. This case in perhaps wrong, however. See p. 74, Sixth, the arbitrary limitation of liability for the spread of fire, adopted ir Ryan v. H. Y. Cent. R. R. Co. This case is wrong. Seventh, the doctrine of avoidable consequences. These last three exceptions restrict the deft's liability. The popularity of this ule is due to the fact that the cases are usually casea of negligence and negligence is determined by the acts of reasonable men. Then, too, it enables the judges to unload the question onto the jury. It is a serious question v,rhether one rule should be sought to cover all classes of cases--whether it moght not be better to get different formulae for the different cases. THE LAST WRONGDOER RULE : The legal cause is the last (or nearest) responsible and culpable human agent in the chain of antecedents, that is, the last one before — the nearest one to — the happening of plff's damage, Wharttn on Negligence, 1st ed. , App. bottom of page 823, also same volume, sec. 85-89, sees. 134-145. Bish. Non-Con. Law, sees. 44-51, The first exception to this rule is that deft is not liable if the nearest human v/rongdoer, that is, the deft is a very remote libk in the chain of antecedents. The force which he set in motion may have become exhausted or spent before the happening of the damage. This limitation brings the rule nearer to the "prox- imate and natural" rule. The second exception to this rule is the last wrongdoer, although himself liable, is not always the only one liable ; an earlier wrongdoer may also be liable, first, where the earlier Avrongdoer intended that his act whould have the effect of inducing the later wrongdoer to do the subsequent tort ; or, second, where the earlier wrongdoer foresav/ thfi commi;:.sion of the later tort as a probable result of his o\im commibsion of the earlier tort ; and, third, (according to seme authorities), where the earlier wrongdoer ought to have fors°en such result as probable. Lane v. Atlantic Works, p. 79. Wharton on Negligence, 1st p-d. p. 145. The probable consequence rule has also these last two exceptions. TFS PROXD.'IATE AND NATURAL RUL?! : froximate means predominating cause, natural means consequences ensuing without an extraordinary departure from the usual course of natural, even though not to have been forseen as probable. The natural and proximate rule is : Deft was liable if his act was the predominating cause, and was not interrupted by ary unnatural agency. In using this rule, you take your stand after the accident, and not before, as in the probable consequence rule. The rule is not a good v/orking rule. It has be®i expressed differently by different writers. Professor Smith thinks -15- Perhaps the cases are harmonised "by this rule which are stated thus : Deft is liable for the protatle consequence of hib acts and for such improvable consec^uences as result proxipately and v/ithr out any extraordinary departure froTn the usual course of nature. The 2nd, 3d, and 4th exceptions under the probable consequence rule would have to be stated as exceptions where one factor in bringing about the result was an extraordinary interposition of nature. The 4th exception given to the probable consequence rule woula not have to be stated as an exception under the last wrongdoer rule. The 1st and 2nd exceptions to the last v;rongdoer rule need not be stated under the proximate and natural rule. Whatever rule of legal cause you adopt, having once established the casual connection, th? latter is not broken b3'- the mere intervention of : 1. Ordinary/ natural forces. Romney Marsh Case, p. 1 of the Cases. 2. The usual or natural action of an animal, Mc Donald v. Snelling, p. 3 of the Gases. 3. The irresponsible action (or instinctive action) of a human being other than plff or deft. Scott v. Shepherd, p. 8 of Gases. 4. The non-culpable action of plff himself, when it naturally results from deft's tortious act, a--action of plff while still in possession of his faculties, and using due care. Jones v. Eoyce, p. 13 Gases. b--So-called action (unconscious agency) while actirg instinctively by reason of fright produced by deft's tort. Wooley V. Scovill, p. 15 Cases. In closing the subject of legal cause, I may say that whatever rule you adopt, you will find it all cut to pieces with exceptions. The result in a great majority of cases will therefore be the same, whichever rule jrou take. GPJi.PTER 11. WHETHER PLOP'S ACTION IS BARRED BY HIS OTO WROEG. Welch V. 'Fessan, p. 97, Mass. 1856. The parties were both engaged in an illegal act. There is no rule of law that a man canno^: recover for any damage "/hich he suffers in doing an illegal act. The propositior is true, however, In some cases, but in case of v/ilful injury jt is no defence to say that the injured party was doing an unlawful act. This v;as a case of a wilful act of a confederate. Keener on quaii-contracts, p. 274-5, says he does not believe in the test of vrhether or not plff has to prove his illegal act in order to ma k e out a prima facie cause of action. Two important deductions flow from this case. I. There is no general rule of law that a man cannot recover for any damage suffered by him at a time when he himself was acting illegally. (Pollock on Torts, 2nd ed., 159 ; BrooMes' Maxim.s, 381 ). 2. Wilful and intentional infliction of dama-ges on plff can never be justified by the r-ere fact that he was at the -16- Steele_v_^_Burkhardt^_ p. 98, Mass. 1870. * * * In order to maintain an action, pl:^f does not have to prdve his violation of law, for that depends on weight of packages, which is entirely iinniaterial to his cause of action. The fact t'-at he was breaking thf^ law does not leave him without renedy, provided he does not have to prove his "breach of the law in order to main- tain his action. Beft here was a stranger. Plff, although a wrongdoer (here plff was breaking an ordinance), if dcmaged by the nRp;ligent act of a stranger, can recover except when his own act is*^contributing cause of his injury. The last cause showed that such a plff may recover if damaged by the intentional act of a confederate in wrongdoing, Plff was liable to the state for a violation of the ordinance, but his violation contributed nothing to his injury. If plff had been acting legally, TH'B ACCIDENT MIGHT HAVE HAPPEiraD JUST THE SA!f5. For instance, suppose no such ordinance existed, Norris v. Litchfield. p. 101, N. K. 1857. Bell,' J. It is often said that a person who suff -rs from the negligence of another cannot recover if he was himself at the time a trespasser or acting in violation of law. This is not correct, For his trespass or v/rong may be abswerable, but that does not affect his rights as to other parties. He is entitled to recover unless it appears that his negligence or his fault has directly contributed to his damage. In this case there ■•as a statute that teams must pass on the right, Plff was on the left of th^ centre of th-- road, but thought he was on the ri^'ht. He "let another team, and, in consequence of an insufficient railing on a bridge, was forced off the bridge. He sued the twwn. The discussion by Bell, J., is ojie of the best in th^ book, Gannon v. Wilson, p. 103, Penn. 1886. Plff was a wrongdoer, but the court did not regard his wrong as any part of the cause of the injury, and so allowed him to recover. THE ?ISRE PACT THAT THE GOODS "rERT^l THERE HAD NO TEj\1DENCY TO CAUSE THE INJURY, Had plff put the goods there after he was trhe horse coning, he could not have recovered. Contributory illegality is a better phrase to describe plff's act than contributory negligence . Zl-^L^thJLi-J-lDllSLi. P* ^^^t Mass. 1873. Plff here was injured by the negligent act of another, and that other was a confederate and not a stranger. The case is unlike Welch V. Wesson, where the act was a wilful one. If the wheel had been started by the negligent act of a stranger, plff would proba- bly been allowed to recover, as plff's act would probably not be regarded as a cause. According to this case, the law does not recognize any duty of care by one confederate against another, but according to Welch v. Weoson, confederates mutt refrain from -17- injuring each, other. The case cannot "be distinguished fron Steele V. Burjhardt as to matter of causation, except that here the injulry was inflicted ty a confederate. According to this case, the law does not impose a liability upon confederates for negligence. Was the illegal working ty plff a condition or a cause ? It would seem that it was a condition, for the injury night havq. happened just the same on any legal workday. Wallace v._Cannon, p. 106, Georgia, 1868. • • * 0: e offender against the law cannot set off against plff that he, too, is a pjiblic offender in another distinct transaction. But tehen both have been EI5GAGED IIT THT? SAI>P1 ILLEGAL TRANSACTION, then the law gives no relief. See 40 Ga. 52 (Brown, C . J. , at 54, 56 ) 63 N. C, 532. The Confederate States had a Government " de facto" at that time, which might possibly have legalised act of cannon, under its orders, Court thought there v/as no duty of care where both parties were engaged in the same illegal transaction. Contra, Gross v. ?>Tiller, (Iowa) 51 ; j-TK. '^^^ Rep. 385. Bosworth V. Inh._of Swansey^ p. 109, Mass. 1845. • * • Judge's charge v/as correct ; the burden of proof is on plff to show that his business was necessary--that is, that he was not engaged in an illegal act. This case has caused much discussion. The legislature finally interposed and charged the la-v as to recovery in such a case. The T.^-ass . court in this case and Lyons v. Desborough, weeri to have thought that illegal travelling on Sunday was. the legal cause of plff 's injury. The view taken in the principal case was that the accident must be due to defect in ^ighwaj'' alone, is peculiar to Mass. Lyons y . JDeaot elle , p. 110, Mass. 1878. The court said that if a man was travelling on Sunday it neces- saril:' contributed to any injury sustained. This is error. Steele v. Burjhardt is right. The cases in other jurisdictions are overwhelmingly against Mass. cases on the point of Sunday travelling. ^it^_li_I;§:IlLL P' ^^^i Mass. 1880. There is a statute in Mass. imposing liability on ttie ovmer for injury done by his dog even if the owner is in no jtaxfclaaiiatK fault in keeping that particular dog. The case can only be distinguished from the last by regarding the assault of the dog the same as %he assault of the owner, that is, by regarding the attack of the dog as a wilful act , and by holding that the remedy for cush a n assault is not barred by the fact that plff v/as illegally travelling* or perhaps the statute imposes an absolute liability. -18- Walla ce v. TTerrimacic Rlyer '^a.j^ ^^_l5Ej._^2.i.i. P* ^^i ^'ass. 1883. The court was consistent in applying the sane rule to travelling on water that it does to travelling on land. It applied the doctrine of Welch v. Wesson to a case of intentional running down. ThR statute of 1884 so changed the law that a violation of the Sunday travelling law is not a defence to an action of tort. See p. 115, Note. Sutton_v^_ToTO_of_¥auwa^saj__ p. 115, Wisconsin, 1871. The fault of the plaintiff in order to preclude recovery must bear the relation of a cause to the effect produced by it. The opinion of Dixon, C. J., has carried the profession against the Mass. cases. It has carried writers abroad against the 'ass. rule pf causation. See the note on p. 122 in #hich the Vermont court holds that Dixon is right as to causation, but also holds that the law about defects in highways was not intended to apply to illegal travellers. See 12 R. I. 392 ; Bish. 'Mon-Gon. Law, sees. 63,64 ; 59 Conn. , I. Dixor was right as to causation, but Ross was right as to recovery. Ne wcoi nb__v . Bos t on Protect iy e Dept . , p. 123., I'las:^. 1888. Important case. Decides that plff I'lAV BE EA?vR'tilD BY HIS irLEGALITY ALTHOUGH THAT ILLEGALITY IS »0T NEGLIGENT. He may also be barred by his N-EGLIGENCE JriTKOUT ILLm:GALITY. Probably court below was right. Innes on Torts, sec. 42. Authorities in Jaggard on Torts 924 to 925. 2 Beven on Negligence, ed. 1896. If plff and his confederate are engaged in illegality, detf (Con- federate) is under nc obligation to use care ; so held as a matter of public policy. Sec. 54-59 Bish, Non-Con. Law ; where ccmplie-nce -yith plff's request would involve an A"^FIRIi[ANCE OF HIS OWN WF;ONG AS THOUGH IT vmCA A RIGHT, his suit will be rejected. Notice the aecond instructio'- deft requested court to give and which court refused, charging instead that violation of law was nerely evidence of negligence. In majority of cases, since this, illegality is used as synony- mous with negligence, but those cases are wrong, and Judge Knowlton is right in drav/ing the distinction. If plff's illegal act is a cause of the injury, he cannot recover, even though he was not negligent, Plff may be barred by either illegality or negligence. 59 Conn., I, supports this case. C, doing an illegal act, is injured 7jy wilful act of B, and negligence of A ; has he an action ? Against B, yes, v/hether B was a confederate or not ; against A, yes, provided that he is not a confederate, and C's illegal act was not a cause. Lav/ does not recognize any fluty of wrongdoers to use care toward each other while engaged in an illegsl transaction. Plff may be damaged, 1. By the wilful act of a stranger ; 2. By the negligent act of a stranger ; 3. By the wilful act of a confederate ; 4. By the negligent act of a confederate. Pie could recc er in the first three causes but not in the fourth. -1.9- He cannot recover against a confederate, on account of putilic policy, as the law does not recognize and enforce any duty of mutual wrongdoers to ude due care toward each other, though it v/ill enforce a duty not to inflict wilful injuries. Pl^^f is barred by negligent act of stranger, if his own illegal conduct is the cause, or one of the causes of the d&piage. He can usually- recover i:i axy case for thav/ilful act. CHAPT'SR III. Nl^GLKJK^^Cy] U: R'gluATIONS NOT ARISING- DIRICCTLY OUT OF CONTRACT. STANDARD 01' CARE. DEGREES OF CARE. Actions of tort frequently arise cut of contracts so that there might be a choice of remedies between contract and tort. This chapter consists of cases not arising out of contract, though contract cases v;ill often be used to illustrate what is meant by negligence-? Blyth V. Birmingham Waterworks Co., p. 130, Exchequer, 1856. Frost was so severe that NO KIPiLaj^' BEING COTJLD HAVE FORSEE" ITS SE^rKRITY. 107 T^ass. 492, P. Denio 441, 54 Wis. 107. Dam. Cases. Compare all three, "N'^gligence ii: the omiesion to do something lyhich a reasonable man, glided upor those considerations which ordinarily regulate the conduct of human affairs, would do, or something v/hich a prudent and reasonable man v/ould not do." Alderson. Alderson's opinion here is the most famous or the subject of negligence? His rule as to negligence is good. His application of it to average temperature Is not so good, as he ought to have considered whether there were periodic or occasional extraordinary frosts. In the latte case, one ought to anticipate such frosts and guard against them. S^e Pollock on Torts, 1st ed. 47, Add to Alderson's definiticnc '■provided, of course, that the party .vhose conduct? In question is already in a situation that brings him under the (legal) duty (toward plff ) of taking care." Requisites to action of negligence are : 1. Legal duty to deft to use care, usin,: legal duty s distinct from moral duty ; 2, A legal duty owing from deft to plff J 3. Breach of, or omission to fulfill, the duty ; 4. Damage resulting ir a legal sense fron this breach. (See 55 Vt . 3.?2, 'A*iere ^eft violated statute but damage would have happened notwithstanding violation); 5. Damage so resulting to plff. Pollock, J^nd ed. 352 ; 6 Harv. Law Rev. 386 ; N. 2 ; Holmes on Com. Law, 152-161 ; 107 ::ass. 402, 2 Denio 441. -20- Rex V . Wm . Smi th j_ p. 133, S Carrington & Payne, 449, 1826. Important decision. Same view would protatly be taken in a civil case. NOT CRIMIKALLY LIABLE FOR ]1"RGLECTING A MORAL WITY, "but is for legal duty. The defence was that there was no legal duty in defts to look after and naintain their idiot brother. Regina_v^_Juat_ainj_ p. 136, High Court, Queen's Bench, Liv. , 169^ Thib i8 a weak opinion. The case does not expressly overrule the preceding one, though Coleridge implies as much. He was not as good a lawyer as Day, J,, whose charge to the jurv that I? THERE WAS AK BfPLIED UNDERTAKING to provide for the deceased, deft was liable, is much abler than Coleridge' negligence and did not, he is liable. Courts often apply the rule that he iiho had the last chance of avoiding the injury is liable. The court said here that deft's negligence was sole legal ca-use of injury. Apparently they had that rule in mind. Davie s v. Mann, p. 151, 10 Meeson & Welsby, 546, 1842. Often quoted. Here deft, -.vaspresent and plff absent in contrast to Butterfield v. S'orrester, ante. Jury here found legal cause was act of deft and not of plff. Accident might have been avoided by ordinary care on part of plff, but deft was not in the exercise of ordinary care at the time of the accident. Deft had the last chance to avoid the accident. Stil es v .:..&gese^j p. 153, Penn., 1872. The decision of the court above is like Davie ti v. !Tann. See H. & H. (English) 424, both parties absent here. 3 Harv . Law Rev. Judge charged that deft cannot plead plff's v/ant of care if he was negligent himself. Court held this incorrect. Suppose negligent collision, one driver asleep, other not, could former recover ? Jury would be very likely to find that latter had last chance to avoid collision, and so was liable. The great question is, what occurred at moment of accident, not how the parties got into that position, or ho'v long ago, but merely what were their relative states at that time. Tuff V . Warman , p. 155, Cora. Pleas, 1857, Ex. Cham. 1868, Celebrated case. Probably decided on assiAraption that defts were aware that plff's boat was not keeping a lookout, and yet, notwithstanding such knowledge, did not alter their course so as to avoid collision. Trial judge said, "Plff could not recover if plff's negligence was any part of the legal cause," which is right, but he also said, 'directly contributed," which is misleading or ambiguous. Co^'rt refused to set aside verdict. On appeal court refused to s et aside, Wightman, J. (see bottom p. 159) used the "But for" rule, which is grossly erroneous, because ox under that rule if there was negligence of plaintiff anywhere in 'chain of antecedents he could not recover. Rule of law laid down to jury at trial was substantially correct, except that it is best not to use the word "contributed or "directly contributed", because of liability to misapprehension. But plff cannot recover if his negligence was in any degree the cause of the injury. Opinion of — O" '.Yightman is entirely indefensible. Here both parties were present. See Clerk & Lindsell on Torts, p. 38i.^) Pollock on Torts, P.ni ed. 401-2. Court regarded deft as haring^^st chance to avoid injury. Note criticism of opinion ir Murphy v. Dean. See^ 64 1\. Rep. 753, Wis,, which is contra to Tuff v. War man. The case arose on a motion to set aside to misdirection. This is the reason why the court only considered whetherr the instruction was correct, and refused to consider whether verdict was against evidence. Professor Smith thinks that this is a case of concurrent simul- taneous negligence. If the men in plff 's boat had been asleep and deft had known it, plff could have recovered. PollocJ: on Torts, end ed. 401-2 ; Clerk & Lindsell, p. 381. The principal case is supportable only on the assumption that deft knew of plff's negligence, and that that imposed a duty of greater care upon deft to look out for him. Wightman's rule would permit recovery where plff had exposed himself to def t ' s negligence. Wightman's statement on tj-.e top of p. 160, is open to the objection made to it by Wells, J., in Murphy v. Deane, As to the second part of hib test, namely, that about avoiding the result by deft, either could recover from the other. See p. 161, about 10 lines fro!- the bottom. There is a great conflict of authority as to whether the burden of proof is on the plff to show that he was without fault. "Contribute" is a very bad word, because a very little thing ^ _ might contribute, and stilL not be a part of the legal cause. The word is too 4-Oose, and "directly" does not help it much. M urph y V . D eane, p . 160, "^fe s s . 1869. There Is much conflict of ai;thority as to whom burden of proof is on, Radley y. London & N. W. R. R. Co ., p. 163, Law pep. 1 Appeal Cases 754, 1876. * * * While it is tni'^ that in general plff cannot recover if his negligence has contrlbutea, yet there is this qualification, that, even thovgh plff's negligence may have contributed, neverthe- less, if deft could, by use of ordinary care, have avoided the accident, plff's negligence will not excuse him. Judge wrong in not applying the latter rule to the facts of the case. Plff was negligent Saturday, and continued so throi.'gh Sunday. Deft v/as negligent Sunday, v^aspresent, and was in motion. Clerk & Lindsell, p. 383, say that the decisive point in this case is that PLFF WAS PASSI^H? AJTD DEP'"^ ACTIVE, SO THAT DEFT ACTUALLY DID TirK DAYiAG'S, WAS THE ACTIVE CAUST^]. The judge charged practically that if there was any contributory negligence on his part, plff could not recover. The court held +" this wrong, holding that plff could recover if deft could have avoided consequences of plff's negligence by ordinary care ; they go on the principle that there were successive acts of negligence. The rule of Lord Penzance on p. 165 is a good one for this case, but it is not so as a general rule for it aj,pliea only to acts v;hich are successive. Ke undertook to lay do\vn the whole law of -24- contributory negligence, saying that EH WHO HAS Tlffi LAST OPPORTUfJITY IS LI/^BLE IP im DOES NOT AVOID lYi''] CONSEQUENCES Q'F THi^ OTI^R'S BTEGLIGENCE. Pollock, 404-5 Tliis rule evidently will not apply where the negligent acts of plff and deft are aijiiultaneous. Neither can recover in cases where either or neither can avoid the injury. In Matthews v. The London Street Tramway Co., it v;as held no defence to say that deft waa not guilty of the whole of the legal -cause, ^.s a third party was concerned. Had r;,lff been that third "party he could not have recovered. That deft i^ not the v/hole cause of the injury is no defence to a suit by the non-negli- gent third party, but it is to a suit between the parties concur- rirr in the negligence. Profesbor Snith doubts v/hether there was in fact negligence on the part of the plffs, but the court thoufjlit there -vas. The juty under the instructions probably thought they r.i;st apply the "but for" rule. The first proposition on p. 65 does not distirguish between cause and condition. That proposition vhh probably iiTtended to mean that plff is barred if his negligence is ir whole or in part the legal cause of tte action. The second propobition is meant for an explanation of v/hat the judge means by legal cause : that if after the negligence -of plff, which was earlier, deft had a chance to avoid it by common care, then deft is not excused on acconht of previous negligence of plff, because then deft's negligence is the sole cause. Pollock on Torts, 2nd ed. 404, 405. This is a t^ood rule where case is one of successive negligences, but it will not v/ork where negligences are simultaneous, and one is part of cause. Thomas y. 9,uartermaine^ p. 167, Queen's Bench Div. 1887. Bower, L. J. Plff in an action for negligence mist prove two things ; 1st, that deft has been guilty of some negligence ; 2nd, that deft's negligence was proximate cause of injury. GontribiAory negligence in plff only means that he himself has contributed to the accident in such a sense as to render deft's breach of duty ho longer its proximate cause. Lord Esher had in mind such a case as Matthews v. London Street Tramways Co. ; Lord Justice Bowen had in mind a case like Davies V . J ''^a nn . The term "contributory negligence" should be confined to cases where plff and deft are concurrently negligent. There the acts of both go to make up the legal cause. It should have been said under Radley v. The London R. P.. Co., that that case is generally re^jarded as having settled the law on the point. Clerk 'c Lindsell, 383. Nashu a _I r gn_&_ St eel C o^ v . J^ojy ester & Nashua R g.Cq._^_ p. 168, N. H. 1888. As to contribution between wrongdoers, see Keener on Q. G. , 408-410 ; 148 I.'ass. 363 ; Keener's Cases on Q. C. 492-504. The case makes four suppositions as to the presence or absence of parties. The rule of law is the same for all these cases, but ~2b- the application ma,:; yary with the different circumstances. 1. Deft absent, plff can recover if he does not know of the negligence of deft, and is not to "blame for not laving known it, "but there ib a conflict of authority as to how much care he is ■bound to use to look out for the negLigenc- of others. 2. Plff ^"bsent. There the negligence of plff is not a cause ; it merely affords an opportunity to deft to do the injury. - 3. Both present. If deft could avoid, and plff could not, deft ib liable. See Ship case, p. 173. You must consider the negligence at the time of tho injury. Plf f ' s negligence may "be the cause of t>ie danger, and deft'fc cause of the injury. If "both are negligent at the t iiie of the injury, any previous negligence does not count. Keal_v_^_G;illet_t_, p. 174, Conn., 1855. This case represents the great weight of authority. If plff's negligence contributed to the injury in however slight a degree, it "bars his recover^'', however gross the negligence of deft may "be. This is the general rule. Compare it with the Ills, rule given "by Preese J. on p. 176. The Ills, rule is now repudiated in that state ; See 8 Karv. Law Fl=5v. 270 and 356, but it has crept into statutes and crops up under different names in other states. Freese J. in Galena, Etc. , R . T. Co. v. Jacobs, p. 176, 111. 1858. The case gives the rule of admiralty courts. In admiralty where plff's fault was either the whole cause, or no part of the cause, the rule cannot differ from common law, but where plff's fault was only part of the cause. It differs from common law. In admiralty, if each is part of the cause, no matter what part of cause each may be, damages are divided equally. Here plff could not have recover- ed anything at common law, e.s he 'vas negligent himself. Admiralty courts started with the doctrine, that, in case of a collision of two vessels, damages should be divided, and extended It to cases of innocent passengers injured in a collision of tv.'o vessels, then to the case of a man working on board of a vessel as in this case. Admiralty does not divide damages w^ere fault is due entire- ly to one party. In common law, the jury assesses damages in Admiralty, the court assesses dctmages. This mar partly explain the difference of view. Thf" distinction drawn between negligence and wilful negligence, wanton negligence, etc., in doctrine of cpntributory negligence, ought not to be drawn. 95 Ind. 293-4, very good statement. Also good discussion in 4 Cycl of Law, 80-1, sec. 36. Three rules, common lav/ rule, adm.iralty rule. Ills, rule of comparative negligence. In some states stati^tes have been passed making the damages recoverable proportionable^ to amount of cause furnished by negligence of other party, 3 Harv. Lav/ Rev, 268, We are not now considering v/hether or not a duty is Imposed on a man to anticipate negligence of another. -26- Gulmlpy V. Woodbury, p. 184, N. H. 1885. Court here reads lz-,w of contributory negligence into the statute Statute ia often to "be taken as subiect to cor^'On law rulea. Thib is a very stroilfr move on the part of the court 'i' ^Where statute imposes liability on a man if he fdls to do a certain Ithing, as a general rule courts will understand Legislature meant that he was to be liable only to plf f s , "^ho are not guilty of negligence ; question on legislative Intention. See L'onovan v. R. R. Co. Cleveland Rolling Mill Co. v. Cor riga n, p. 187, Ohio 1889. Prevailing rule. Makes children a distinct class. /. child is held to the same, and not to a greater degree of care than is usual- ly exercised by children of the same age. This case settles the rule where the caild is plff . Probably the same rule would hold in the case v/here the deft was a child. There are three rules possible for children; 1. Care of adults. 2. No care at all. 3. Care usually exercised by children of the same age as the one in question. Stone y. Dry Dock Co., p. 189 . N. Y. 1889. jt is always a question for the jury as to how much care the child in question ought to have used ; still the child may have been so young, in some cases, as to justify a judge in assuming as a matter of fact that the child v/as not guilty of contributory negligence, as in 43 Pacific Reporter, 228. Here the question was properly submitted to the jury. In crimlna,l law there is a conclusive rule that a child under 7 cannot commit a crime. In torts there is no such rule as to care. The rule is that the child should use such care as an average child of that age would use under the circumstances. It is not a hardship to leave children out of the operation of the contribu.t6ry negligence rule, as that rule was not intended for the benefit of deft, and deft is not liable anyway unless he was negligent. An adult is bound to use such care as an ordinary adult would use under the circumstarces , unless a distinct defect or manifest incapacity be shown--e.g., blindness. The rule for a blind man would be, the care that a ca,reful, prudent blind man would use 1 nder the circumstances. Obviously that /ould be more than a man without sucii defect would use. See Hlraes , Com. Law, 109, 110. Contributory negligence is as much a bar to an action under a statute as at common law, save where the statute points out an actual liability, for instance, ir, 42 N. E. Rep. 447, a statute required that shafts be fenced in and provided the damages for an accident wher*e they were not fenced in. Contributory negligence was not allowed as a defence, as the statute was presumed to be intended for the benefit of workmen w/.o were negligent. i,^ere a child is hurt by the negligence of another, 4 classes of cases may arise : 1. Action by the child for his own benefit and -27- d8fence--negligenGe of child. 2. Same action sm (1), and defence imputed negligence, i.3., negligence of parent or guardian, or one standing in such. i»elation. 3. Action "by child's friend or parent for child's benefit for loss of service and other rights. Defence parent's own negligence. 4, Same action as (3), and defence that parent is "barred "by negligence of child. There is also the case where a child is the plff, is negligent, and is also a trespasser. These different cases are hrovght in the cases and lecti^ues. Steinmetz v. Kell y, p. 191, Indiana, 1880. Contributory negligence is no defence in an action for intention- al injuty. There is no duty to avoid th^^ results of another's intentional injury, but one must use due care after being injured. 1. Sedgwick on Damages, 8th ed. sec. 204. To illustrate : Suppose A intentionally wouftds B, B sees he is about to be injured, and does not avoid it. Afterwards he is negligent in treatment of vvoufid ; it increases his irgury from $50 to $1000. B brings suit for personal injuries, A pleads contribu- tory negligence, that B might hiave avoided all injury. B can re- cover $250. Wanton or reckless negligence is a meaningless term, and the aii.thorities which allow a negligent plff to recover for it are not to be supported. By v/ilfui negligence, the coi.'rts mean where a man knowingly omits to do his duty in the full consciousness of the consequences. It is not desirable to have thiiJ middle ground. 95 Ind. 293 nnd 294 contains ^i careful statement of the middle ground. SeeTalso on middle aground, Ara. and "Eng. Ency. of Law, Vol. 4, page 80-1, par. 36. Plff's contributory negligence must be in whole or in part the legal cause of the damage, but just what the legal cause is, is a different point, and when It is once settled, it does awaj?- with all difficulties of contributory negligence. contributory negli- gence only arisen ii case where the legal cause is a compound of acts of plff and deft. A rule is coming in by statutes in some states that plff may recover in proportion to his negligence--the less the negligence, t-^^e more the recovery. The difficulty of this rule is in appor- portionlng the damages. The penal theory of explaining contribu- tory negligence--vi2. , that plff is guilty and so must be punished, has an element of truth in it. 3 Harv. Law Rev. 268, article by Schofield. The idea is to induce people to live up to the law the punishiTCent for not doing so is their loss of their right of action. Krum v«_Anthon;^, p. 194, Penn. 1886. • * * Action v\ras not /^r^- breach of contract, but was ar actio:! of tort to recover damages for loss caused by fleft's negligence. T'egllgence being gist of thft action, contributory negligence will bar recoverj'-. Plff should have sued for the neglect to fence, it being a breach of duty and the court logically would have had to let him recover. Doubtful if the defence of contributor: > negligence should be allowed where there was a breach of contract. The case is contra to Kellogg y. The R. R. In Donovr.n v. R. R. , deft v/as bound to keep fence by statute ; here deft was bound to keep fence by contract. That was case of statute, and this was a case of private contract, D on ovajn._v. Hannibal & St . Joseph R.R. Co. , p. 196,' Missouri, 1885. The Legislature had in Piind passengers also, w^e are to look at nature of act prohibited, and reason why prohibited. What do the owrds mean v/hen used in this particular statute ? And for this particular purpose ? To read doctrine of contributory negligence into this fj statute would make the statute nugatory, 28 Mich, 4515-16. Use of land by its owner is regarded as so important that owner is less restricted tha-; in use of his chattels. Legislature intended precisely that thB owner should not be de- prived of thf! use of his land. See Erum v. Anthony, post. Authorities are with Donovan v. R. R. Co. Here plff knew perfectly well that deft had not conplied with the law. Kellogg V. Chicago & IT. W. R. R. Co., p. 198, Wisconsin, 1870. ♦ » » Doctrind of contributory negligence does not apply. Plff was not obliged to abandon the ordinary and proper way os using his land, simply to avoid possible consequences of deft's negligence, 55 IT. w. Rep. 395 (397-8), Plff owned hay a mile away from deft's stack. Deft, negligently set fire to his stack, Plff saw the fire, thought it would reach his hay, but took no precautions. Court held that if plff by due care could have saved his hay, he could not recover. How distinguish that case from Kellogg v, R. R,? A distinction is drawn between present and immediate danger and possible or probable only. The principal case is right, but there is a conflict of authority'- on the point. Professor Smith thinks it is right, also that Loker v. Damon is right, A man cannot by his own negligence impose upon another the duty of abandoning the use of his own property, but after a danger is set in motion by the deft the plff is bound to do all he can to avoid the effect, as in the case of fire, Hogle v. The R. R, and Loker v. Damon, A. R. R, uses a da,ngerous agent on its premises and must provide proper safeguards against the danger and damage cre- ated by its own act. The adjacent land owner, as in Kellogg v. R., is doing nothing of that kind, and is not bound to provide safe- guards against possible future harm. It is enough to hold him bound to try to avoid damage after the danger has been begun. He may make all beneficial use of hiy land although the R. R. Co, is using a dangerous agent on its premises ; no duty for him to refrai-' on that account, OIT GOKTRIBUTORY JrEG-LIGSIlCS IX GEITERAL, Wrier e there is a compnund legal cause made up in part by negligence of plff and in part by that of deft, is the only xjase where the doctrine of cont'-ibutory negligence comes in, Contriby- tory negligence had better be confined to cases where the legal -29- cause is a conpound of plff's and deft's negligences. Contributory negligence is simply a "branch, of the doctrine of causation. 31 S. ^. R. 885, 888. Plff's negligence need not "be sola cause ; enciigh to "bar re- covery, if it is part of the legal cause. Beven 1st ed. 125, 127, crit-icises "ContrilDutory". Then a third person has "been injured by accident brought on b;^ negligence of t.vo persons, court allowea recovery froin him whose negligence had begun to operate first, and vrho was not present at the time, and h.ad no opportunity to avoid the accident at the time, 'Then suit is between two actual parties, court will rather consider dcctrine of last chance to avoid the injury. Prevailing view that of iTeal v. Gillett, ante 1'74. Possible theories . (1) Plff is bsj-red if substantial fault of plff is found anywhere in chain of antecedents: "but for" rule. {%) Illinois Doctrine, (3) Florida view that the previous negligence of plff would be considered in mitigation of damages only. (4) Doctrinr of Admiralty, dividing the damage^ equally. (5) (Query) If plff's prior fault is in a moral point of view worse than deft's subsequent fault, plff cannot recover : probably no od urt has adopted this last, although decisions may often have been uncon- sciously influenced by it. Impossibility of equitable ai:portionment of damages between the parties ir a common law action i& one reason for adopting theory in 7Teal V. Gillett. Admiralty rule is called justitia rusticorus. Corron law courts do not care to adopt admiralty rule dividing the damages equally because sympathies of Jury might be with plff, who was in fault. Neal v. G. rule is sanetines called the "Penal" theory ; better becalled prevention rule. See schofield in 3 Harv . Law Rev. 270 : "Ultimate justification of rule is reason of public policy, viz., desire to prevent accidents by inducing each member of the community to act up to the due care required by law." To say that plff is barred where he is a v^rongdoer is not a correct use of the word "wrongdoer. " In many cases plff by his own want of care, although he cannot sue, neither is he liable to be sued. His contributory neglir-nce dc--:. not always imply a wj^ong of plff's part v/hich makes him lialle to be mulcted in damages. 2 Jag. -on T. , page 60. Pollock, 2nd ed. 160, Plea of contributory negli- gence admits aeft's breach of duty towards plff, but alleges that deft is barred by hit own concurrent negligence. Defence of consent is no admission of breach of duty on part of deft towards plff. Read carefully opinion in Nashua Co. case, ante 168 of the Cases. CHAPTER IV. IJIPUTED i: MlGLI G"E jTCb; . This heading might perhaps better be "imputed contributory negligence," Imputed negligence is a subject on which there is a conflict of authority. -30- The Bernln g., C ourt of Appeal, 1887. This case is called Mills v. A-nstrong in the House of Lords. Throgood v. Bryan was law in England for 40 years. It is over- ruled by the Bernina case. It was rejected ir; the U. S. soon after its decision, and is now generally rejected. . In the prin- cipal case the engineer could not sue his employer for negligence of his fellow servants, hut he could recover from either of the joint wrong-doing fellow servants, and from the other vessel. If these VTTOng-doers were consciouti of their guilt, neither of them could recover contribution from the tthers. 116 U. S. 366, follo\^ infe the decision. There the negligence of a hack driver v/as not imputed to the passenger. It is the leading case on the subject. The passenger there had no control of the driver. Suppose a ^riend takes you out to drive ; is his negligence to be imputed to you ? No, A wife woula probably be barred, but the view is growing that the husband and v/ife are not one in law, a.nd probably in some jurisdictions the wife couad recover. If a p9,ssenger gives directions which are followed by the driver, the passenger would probably be barred by hib own negligence. So if he is sitting beside the driver and does not 'arn him of a danger which tbe driver does not see, he is barred, A person who is riding in a public conveyance is not bound to inquire irto the antecedents of the driver, but if he started out with a driver intoxicated and manifestly unfit to drive, he would be barred by his own negligence and not by any doctrine of imputed negligence. In fact the doctrine of imputed negligence is nov/ exploded, but personal negligence is still a bar. In 21 S. W' Rep. two persons were engaged in a joint undertaking One was driving a wagon and the other sitting in the rear leading a horse. Owing to the negligence of the driver and a third party, the one in the rear, a blind man, was injured. HELD : That the blind man cannot recover. If tv/o persons are engaged in a joint undertaking, each lb responsible for the negligence of the other ; they are agents of each other, in Bernina the engineer was not a principal : he and the second officer were only fellow-servants, not principals at all. The negligence of a servant v^en engaged in the business of a master is imputable to the master. If a man sends a box by a freight train of the F. R. P-, , and there is a collision with the B. & li, , both railroads being regligent, can he sue the B. & M. , or is he barred by the negligence of the F. R. R. or of its agents. 69 N. Y. 470, 483. ?IELD : That he is barred, though if he had been a passenger suing for personal damages, he would not be barred. 27, Atl. Rep. nil. This rule will probably be followed generally. The reason why the passengei' coulc sue is that there is no bailment. Newman_v_^_Phillipsburg Hors e Car Co., p. 212, U. S. 1890, Peirson in charge is not infant's agent, and so infant is not responsible for his misfeasance, A very young infant cannot be charged with negligence himself, much lesb by substitution. Being in no sense th*^ blaraable cause of his injury, he can recover in a case like this, A child of tv/o years cannot appoint an agent. -31- The only reason why one is barred "by an agent's negligence is because he appointB the agent. But in the case of an infant, the law appoints the agent or guardian to protect him, and not to ingure him, so the child ought not to he affected by the negligence of the parent or guardian, or other person standing in the relation of parent. But to hold this there is no need of eoing into any doctrine of imputed negligence. The case can be decided on the authority of Bavies v. Mann. Hartfield v. Roper, referred to on p. 213 of the Cases, is it ill law in N. Y. , and somewhat in -lass. The .argument for that case is that the father could not recover for the result of his own negli- gence. But in legal theory the money belongs to the child, and will he used for its benefit, though in fact the father generally gets the benefit of it. On theory the Newman case is right, and Hartfield v. Roeii^/ wrong, but the point is in conflict. Bellefontaine & Ind. E. R. Co., p. 216, Pa. 1868. * • * Plff 's allowing child to go about alone was breach of paternal duty, and, as such, negligence in law. Hence he cannot recover, and eharge requested should have been given. In the Newman case the action is by the child for his own benefit. Here the action is by the parent for the loss of service. Both actions can generally be brought. The Newman case held that if the child is negligent the child is not barred, but in this case the father's negligence will bar the father's action for his own benefit. The doctrine of Glassey v. R. R. Co. Is well settled. The jjewman case and Wymore v. Mahaska Co. are disputed. The instruction in the principal case should have added "that the situation of the child must be regarded in whole or in part as the legal cause of the accident." 7 Cent. Law Jour. 313 ; I. S. & R. on j'eglinence. Sec. 72, n. 3 ; Beach or) Neglii;:;ence , 2nd ed.. Sees. 132 to 135. The weight of authority is that a parent is barred by the negligence of the child. 59 7ed. Rep. 424 ; 65 Ped. Rep. 39. The latter case held that the parent was barred when the child was so far negligent that he could not maintain an action for himself. The child is not identified with the father, the father is not liable for his torts, and recovery goes in theory for the benefit of the child ; so there is really no reason why the child is barred by the parent's negligence, though he generally is. yymore v. Yahaska Coi.mt^, p. 218, Iowa, 1889. * • * '"he child was free from fault, and the mere fact of negli- gence on the part of his parents should not "bar an action brought for benefit of his estate. Recovery may result in an undeserved benefit to parents, as they irJier it shild's estate, but that fact cannot defeat the action brought in the right of the child. Action on statute by administrator, but proceeds are going to parent. Conflict of authority as to whether parent's negligence should he a bar when he is sole beneficiary. It would not bar when there are several beneficiaries and only one is guilty of contributory -32- negligence. At co/ynon la^v there .ras no action for causing death. The actio-n is Tdv statute. The question is what the Legislature meant by the statute. Had it ineant to bar a sole beneficiary, it would probably have said so. The point is in dispute. Tiffany on "Death by Wrongful Act," Sees. 69, "71, pp. 272-4. CHAPTER VI. WHETHER NEGLIGENCE OF MAKER OR ^rENDOR OP CHATTEL TTAY ""AT^E HI" OTABLE TO PERSQv^S O^H^F. THAN THOSE CONTRACTING WITH HIM, iIi^*21lk£*l°?2_I^JIllig^t> P* 220, 10 Heeson &■. Welsby, 109, 184*?. Leading case. Plff complains that deft failed to keep coach in repair. Proper construction of declaration -.vould be that plff counted simply on a breach of contract ; there was no allegation of general duty of deft. Yet deft knew that btage coach was to be driven by a c oacliinan ; one of the class to which plff belonged. Decision that this declaration is not good is probably correct, but it seems as if declaration could be formed on facts which would be good, Tendence of court here to hold that facts which constitute a contract cannot have any other effect whatever wMch is probably not true : it can be the btarting point of some other legal duty. Case important for its dicta. Pollock on Torts, 2nd sd. , 443/ 447, 449. H. Smith on Neg. 2nd ed. (Eng. ) p. 7, 1 Sher & Red. on lle;^ 116, Bigelow'a Leading cases on Torts, p. 614, 618 . George and Wif e v. Sk ivlng ton, p. 334, Exchequer, 1:^69. This is practically the sife's suit. So a third party, not a party to the contract, is allowed to recover. The court did not overrule Winterbottom v. Wright, but limited it so that a person who is particularly named at the time as the person v/ho is to use the article bought could recover for any drainages done in its use. The court stopped at an illoric^l point. Instead of stopping where they did, they ought to have extended the liability of deft to ALL 0? THAT CEASS WHO 'a^IGHT REASONABLY BE EXPECTED TO USE THE ARTICLE, The case goes, not on warranty or fraud, BUT ON NEGLI- GEiTCE, The gist of the action is negligence and misrepresentation. Deft was certainly guilty of misrepresentation as well as negligence. Professor Smith thinks the dicta in Winterbottom v. "^^right wrong, and the decision in the principal case correct. But the grounds of decision are erroneous. The court should have allowed any one to recover who might reasonably be expected to use the article, not persons mentioned. -33- Thomas_and_Wife_v^_Winchester^ p. 227, New York, 1852. * * * As hib negligence was imminently dangerous to human life, his liability extends "beyond those with whon he contracted. T^is is a celetrated case. The jurj^ found that Poord, the druggist, who sold from the jar a portion of ita contents to one of the plffs was not negligent. The chief justice put the dec M on on the ground of the great danger of the article to human life. The quality of the drug in this respect ought to make a difference in deciding whether deft is negligent, but NOT IK I)ECIDi:tJG TIIE CLASS OP PERSONS '^10 IiTAY RECOVER. The court seemdd to go on the idea that the dangerous quality of the drug increased the scope of the liability, but there is no logical difference between selling it " o retail aealers and sending it out by agents with the same representation. See Cleric <^ Lindsell on Torts, 365 to 368. The courts say in substance that the liability of deft extends or contracts according as the drug is nore or less dann:erous to hurian life, Surjpose the manufacturer loaned the bottle as e kindne??^; to one party and he loaned it to another. The latter could not aue t?ie manufacturer ; he woula not be one of the class expected to use it. The liability ir: the principal case would be the same if the mediwine had been given as gift by the manufacturer. Suppose you find a bottle and take a dose, relying on label ; can you sue makers for injury ? Probably he question would be, was ' it reasonable to rely on the label under the d rcurastances ? Probably jury would find that it was not . Sale or gift to A, loan to B. B ought to be held to be one of the class expected to take it ? Loan to A, by him loaned to B, latter not one of the class. Whether irtei-yening negligence would break casual connection depends probably on v/hether deft ought to have forseen it as probable. Blood Balm Co. v. Cooper, 231 Ga. , 1889. * * * manufacturer of the medicine liable to all who take it according to his directions and are inju.red. The directions accompanying the medicine roake it dangerous, and proprietor's wrong lies in this, though drug of itself is not iriminently dangerous. The proprietore INTEITLED Th^J PURBHASERS TO RELY OK HIS RECOM- rEHDATION. The case differs from Thomas v. Winchester in that it was not like a deadly poison, but the medicine contained ingredients which were likely to do harm if taken in the quantity prescribed on the label. The" plf f v/as not an original vendee, but 'vas not so far removed from deft here as in Thomas v. Winchester. The case goes far beyond the case of Winterbottom v. Wright, or George v. Skicington, or even Thomas v. Winchester. It goes the farthest of any American case, but Professor Smith thinks it goes none too far. -34- S2.t:liDer^_v_;^_J^_^^_Clar'k_Co^_j_ p. 154, Ilirn. 1892. Ih-'s case is like George v. kiTington, in that deft knevr tliat plff was to use the ladder for deft v;as told to deliver it to plff. But the reasoning of the court goes far beyond the case of George V. Skivington. Deft knew that the ladder vr&s defective when he put it if: stock, althougii he could not distinguish it after /ards IT ''i^AS >TT^GLIGE^TCE TO PUT SUGI: A LADDER i: STOCK. This case would be decided in the same way had the ladder passed tlirough several hands . Curt in v. Somerset ^^ p. 239, Pa., 1891. Tends strongly to sustain "H^nglish decisions. This case follows Winterbottom v. Wright. Winterbottom v. Wright is auLso followed in 51 N. y. 494. See full report as to evidence of negligence, which, however, was not considered by court above. Court held that deft owed duty SITIPLY TO KAN WITH ''/HOTf IIhi OOI'TRACT'ED. Court presumed that defects were not easily observable. As to remark en top of p. 242, deft did not owe dutj" to the ^hole world, but such duty would be only to such class of persons as would probably use (fehe hotel. The claim is that the sometimes sold, if they are kept or sold with full notice and warning. 42. deft should use DUE GAR^ and not, as court seems to think, that deft should be an insurer. Dangerous things may be lav/fully made, kept and N. Y. 351. ".''eight of authority is very strong that citizen cannot sue water conpaiijr for failing to furnish water to put oi-t a fire in case of contract between city and company. 22 S. W. Rep. 2'77 ; 43 Pac. R. 69 ; contra in S. "/. Rep, 554, 557. But if Co. undertake to perform contract and in doing so they furnish something which is used by the proper class, and which is harmful, as in the case of furnishing impure wa+er, they are liable. In 45 pac. Rep, 398, Court held that where vendor knew of defect one who has contract relations with vendee, but not as vendor, can recover. 99 Atl. Rep. 601 (md, ) ; the vendor sold a horse, fraudulently representing him t o be sound ; in fact the horse had glanders, 7/hich was conmunicated to the vendee's hostler ; the hostler brought suit against the vendor. The court held that he could recover if hit; catching the disease was a probable consequence of the vendor's acts. In 78 ?Te. 528, a horse dealer falsely represented an animal a safe family horse. The horse was in fact dangerous and had ran scw&y with the purchaser. The wife brought suit for injury. HELD, she could not recover. There '/ere no false representations to her. The case differs from Winte .-bottom v. Wright, where it was a case of mere negligence, whereas this was a case of wilful deceit. This case shows the tendency of courts to limit liability to^jliTTiediate parties to the contract, Heave n V . Pendor, p. 242, Queen's Bench, 1683. As decided by majority cf the court, this case related to invited persons. Invited persons meant persons present by the consent of the dock owners, on business of common interest to themselves and the dock owners, Brett uses th^ worS injury on p. 244 in the -35- sense of suostantial damage. Brett's dicturc must be limited bO as hot to include cases of the ordinary and natv.ral use of land. A man in the use of his own land nay frequently do acts which cause s Libs t ant ial damage to his neighbor, and the neighbor may retaliate, but the la^v will not give any action. ClerJc A: Lindsell on Torts, on p. 361, note A. The maxim damnum absque injuria, damages without invasion of plff's rights, was forgotten by' Brett. Beven on p. 63 criticises Brett as begging the question, fcr the qord "injury" correctly used assumes a legal duty. If Brett meant damage, it should be remembered that damage is frequent without a legal WT-ong. 100 U. S. 195, L. R., 1893, caused a great deal pf talk. In L. R. , 24, Q. B. D. , c3b6, thistles on a man's land were carried "by the wind onto his neighbor's land ; the court held he coula not recover. If Brett's statement of the law, botton of p. 244, were taken broadly, he could recover. Brett's statement must be limited as before said to ordinary and natural use of land, in 100 U. S. 195, an attorne;;- Icoks up title for client, thinks he finds a clear title, gives client certificate to that effect, latter borrows money on strength of it, and title is in fact not good. Later on, lender brings an action for negligence. HBLD, he cannot recover. Smith thinks Blood Balm Co. v. Cooper is right, and the dicta in Winterbottomx v. V7right is wrong, but the weight of autho- rity is against him. According to Professor f'mith, plff must prove the following six propositions in order to recover : 1. That deft sent article out with a negligent raisrejjresentation as to its fitness ; 2. That plff used the article, relying on this misrep- resentation, and suffered damage ; 3. That plff acted reasonably in so relying ; 4. Probably already included under 2 and 3--that plff used the article in a manner and for a purpose intended by deft, or v/hich the deft ought to have contemplated as probable ; 5. That plff, even though not specifically in deft's mind v/hen he sold the article, was one of the class of persons by whom deft intended the article to be used, or one of the class of persons whom deft ought to have contemplated as likely to use it ; 6, That there was no intervening negligence of third persons (or contribu- tory negligence of plff) breaking the casual connection between deft's negligence and plff's damage. Where defence is set up that plff put ccnfiidence in sub-vendee, and not in original vendor, that defence is not good ; it is not necessary that plff should put confidence In that particular vendor, but puts his confidence in class of makers who sell that article. The argument in favor of Eng. authorities is that otherwise deft may be brought into relations vdth perbons Vv ith whom he would not desire to come into contact, as v/here original vendee sells article to some enemy of original vendor. If there have been many changes in ownership, plff would fina it diificult to convince jury that no intervening cause had come in. As to multiplicity of actions, see Innes on Torts, p. 107-8, ITote. The weight of authority is strongly against the fifth proposition above, but see Clerk & Lindsell, 366, Compare above propositions with the following extract from opinion" of Brett, K. R. , in Heaven v. Pendor, L. R. 11, B. D. , p. 509 : "Whenever one person is by circumstancea placed ir such position with regard to another that every one of ordinary o -56- sense who did thiak would at once recognize that, if he did not use ordinary Kare and akill in his own conduct with regard to t?i0se circuiriBtances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." CHA-pm-irR YU. — SECTION I. DUTY OP CARE ON PART OF OCCUPIER OP LAND OR BUILDINGS . DUTY OP CARE T0?;ARDS PERSONS USING ADJACENT PUBLIC WAY . Barnes v.:_Ward, p. 250, 9 Cora. Bench (Manning, Granger & Scott), T^2 , The fault of deft was not in making the excavation, but in LEAVING IT UNPROT-^'GTED. It was close to his line and adjoining a highway. Had it merely joined a neighbor's land, and had there been no fehce, neighbor could probably not recover. Deft oould rightfully dig the hole in his land, but it was dug in a place where it was likely that some one would fall in, and it was left unguarded. It '.vas inconsistent with the public right to use the highway. 4 H. & N. 67, was a case of an excavation about five yards from the line of deft's land, Plff could not recover, the court holding that the excavation must be so near as to cause ah appreciable danger that persons passing along the highway and using ordihary care might stray into it. 30 Conn. 535, held that the test is not the number of feet distant, but it is a question for the jury whether the excavation is SO NEAR THE HIGHWAY THAT IT SUBSTANTIALLY ENDANGERS TRAVELLERS WHO ARE USING REASONABLE CARE, Profei:,sor Smith thinks that this is the correct test. In Mass, the injured party must seek his remedy against the town. This is by statute, so there is no recovery p.^ainst the individual. 10 Hetcalf , 471 ; 149 Xass. 450. SECTION II. DUTY OP CARE TOWARD TRESPASSER . Lary v Cl evel and^^ &c R. R _Co^j_ p. 254, Indiana, 1881. See Bishop's Non-Com. Law, Sec, 105, as to shooting a trespasser- -- right conflicts with right, HIGHER RIGHT of trespasser to life prevails. Court here seems to take it for granted that plff had not reached highway. To hold against the decision in this case -37- would amount to this : It would be a duty of deft TO IO=!EP HIS PROPERTY IN REPAIR POR TEE SAKE OP TRESPASSERS. Distinguish carefully "between harm which happens to a trespasser fron: the nature of the property on which he trespasses, and that which happens from some act of the owner as distinguished from the con- dition of his property. Where deft knew that his property was in ruinous condition, and did not v/arn trespasser from going upon it, courts hold that there is no duty of warning due trespasser, even though the danger is not open to the eye and deft sees trespasser. Clerk & Lindsell, 376, K. The rule is plff can recover for any fault of the premises at the time of the entry. But if ddft INTENTIONALLY PUT TES PRE^TISES INTO A CONDITION TO I;]JURE TRESPASSERS, plff could probably recover. That is not a justifiable method of deterrinf trespassers. Probably the land owner is under a duty not to change things after the trespasser is on his land so as to make it more dangerous. Louisville & N. R. Go. v^Hurtj_ p. ?!57, Ky. , 1890. Deft did notknow, and was not to blamd for not knowing, that the boy was there. In 27 S. V/. Rep. 992, Ky. , 1894, passenger cars were left near the station and a boy was hurt in someway. The same court held that defts were liable as under the circumstances there was more probability of trespassers being there. If deft knows that trespasser is on land he is under some obligation toward trespasser, but question is hov/ much. As to thit* question there are three views. 1. Owner is not liable for anything short of intentional harm. 2, Owner is liable for reckless or wanton conduct or gross negligence. 3. Owner is liable for failure to use ordinary care towards trespasser. 5!^ilil_li_Il5^1l52l^i» P* ^^^» Vermont, 1853. T'his was a case of recaption of a chattel from another's land. The court said there was no duty on the part of deft, toward plff. of the removal of the support. The case is irreconcilable with Phillips V. Tilpers. Deft's act ^ms an affitmative and not a negative one, and Phillips v. Wilpers is probably better law for affirmative acts than the principal case. But the point would probably be dPc-'deJ ;;: rr-^ently in dlfi e^pr-*- j^-v-isdictioig. If a trespasser takes a dangerous horse and the owner sees him and fails to give warning, the owner is not liable. If the owner knew that a peculiar .vhistle would make the horse rear up, and whistled, and the trespasser was injured, the owner would be liable. ^^^lich of these two cases is W. v. T. most like ? Phillips V. Wilpers, p. 262, New York, 1869. The deft here loosened the rope in such a way that it ammounted to setting a trap for trespasser. He ought tc have loosened it in such a way as to make clear to the trespasser what was done, or notify hi.'; of its being loosened. This is a case v;here a wrongdoer bv hiti wrong imposed a greater duty on another than would otherwise rest upon him. Professor Smith agrees v^rith this, rather tlan Dreceding case. -38- Wa2IL§:Ll_lj.Jioston_&_^p1.n;-_R_^_R^ p. 26Z, ^^^ass. 1874, Tort for killin~ of a horse by a loconotive. Admitted that the horse was trespassing on the track. Judge charged that deft was liatle if by dike care the injury could have "bften avoided. HELD, that this was wrong, it beinc; a statement of duty toward a horse rightfully on the track. But as the horse was a trespasser, deft was not liable for anything short of reckless and :7anton misconduct. It is not to be presumed that deft sa''; horse ; Court held him liable if he was reckless or wanton qfter he saw horse only. Cf . 3 views of obligation, supra. ^giJjgQr_7.' JlP^"'^^e^i^^ Pacific R. R. Co., p. 265, i'inn. 1387. The horse was trespassing on the highway. The court held that deft was not bound to anticipate that trespassing animals would be there, and therefore was under no duty to look out for buch animals, but def t ' s duty was merely not to Injure the horse after seeing it. If it culd avoid doing so. The court says there is r duty to look ahead, but thio is due to animals rightfully on the tract. Strong, J., in Brown v. HujTimall, p. 266, Penn. 1863 ; Intruders upon railroad tracks are wrongdoers. R. R. is not obliged to take precautions against possible injury to intruders. But--- of care towards a person not owing where it is rendered neces- sary OILY BY HIS O'VT- WROIIGFUL ACT. No matter how great may be the danger of trespassing, the standard of duty in the use of one's property is not elevated or depressed by a varying risk of unlawful int 'Visions upon his rights. Case goes tc an extreme. Extreme application of maxim that law presumes that every man will do his duty. It lays down the rule that a railroad is never bound to look out for trespassers. Someville, J. Plea bad for failing to aver that def t ' s servants in charge of train used proper diligence in k-eping a lookout for obstructions on the track, including plff 's son who was injured. The train was going through a large city at a rate prohibited by cit}- ordinance. Under these circumstances it was the duty of person in charge to k^^ep a vigilant outlook even for trespassers, and failure to do so was negligence. Someville, J. j'o duty on engineer, in absence of special reasons to keep a vigilent oi:ttlook for trespassers. riote to the last tv/o cases. Someville, J., makes a distinction between populous and non-populous territory. He has in mind "Care under the clrcv-nstances. " QUERY, as to whether he should not have left the question of care to the jury. See next case. ?l!12.ini?.t.lju.^^A.i._^^_^:L_Q.£^_lr_ti^^l^ ^hi° 1871. Action against R. R. Co. to recove • damages for killing of horses throui* alleged negligence of defendant's servants. The -39- horseti ?iad escaped frori the deft's enclosure on the track. Judge charged that the paramount dutj^ of those Id charge of trr.in was the protection of property and jjRusengers on board. But they are "bound also to use ordinary ca.re to lock oiit for trespassers on the track. Ouestion is, considering; their paramount duty towards passengers 'cxrd baggage, would ordinary prudent man,. in charge of train, in exercise of ordinary care, have avoided the accident.. Of. f-aynard'b case, ante P.6Z. Higher court seems to say that the duty where engineer sees trespassing animal on track is to use ordinary care under the circutistancea. Better than Mass. case. Court : Putting train behind schedule t Jme by stoppinti for every slight obstruction would endanger lives of passengers by deranging time table. Court does not lay down proposition like Pa. case that engineer is not bound to look ahead, "but holds that he may be held liable for not looking ahead, even when track is fenced. Question of care under the circumstances. Case contra to Palmer's Case, ante, Pof). ^To duty to ensure safety of trespasser when his presence is known, but owner of land is liable for injuries inflicted by lack or ordinary care. He can eject trespasser, using reasonable forca Where land owner harms trespasser in a way that -vould be negli- gent if he knew trespasser were there, liability is a question of circumstances, as, difft^rence between obligation of engineer of R. R. and driver of vfagon along public highway. Engineer may have paramount duty to his passengers. In great majority of cases land owner is not obliged to look out for trespassers, but there maj'- be cases where trespassing is so common that he may be under duty. Conflict of authority. Seems to be question for jurj'- whether under the circumstances land owner should not have looked for trespassers. ^Vhy is not a trespass contributory negligence ? Because a trespasser is not necessarily careless. I. Sherman !'lrn. 1S75. Here the turn table "/as Ir an open place belonging to the E. R. Co. The court held (see p. 277) contra to the preceding case. The great weight of authority is with this case, but there is a conflict of authority on the point. The probability of seriousness of harm is infinitely less with an apple tree -ith rotten branches, which is alluring to children, than in the case of a turn table, so deft would not be held. ■40- In .79 :^''. "5. Rep. 484, a land owner was held lialDle in a case where a child was drowned in an imguarded excavation filled -vith water and floating plank. 100 Penn. State 144 contra, 159 Mass. 238, follows Frost v. The R. R. In 21 S. W. Rep. 1(062, a case of a ladder against a car, the Co. was ret held liable. In 28 S. W. Rep. 1069, a child jumped on a movin^i- train, and the railroajid was not held liable. In 32 ITinn. 133, and 23 Kansas, 147, a car was standing on an incline and the brakes were set. A child loosened the brakes, the car started and a "boy was injured. HELD, R.R. was not liable. In 91 Gala, , 296 , where there was an older boy present who knew better, the principle of Lane v. Atlantic \»/orks, p. 80, of these cases, was applied. In 59 ¥. "r. R. 37, a trespassing child was injured by a land owner chopping wood. IlgLD, wood chopper not liable for not warning child who was injured without negligence of chopper. In 39 ''inn. 144, and 46 Minn. 233, turn table cases, the R.R. was held only bound to use ordinary care. The Court held that the R. R. was not bound to secure the turntable so that it could not be unfastened. It added this instruction to the instruction given in the Keafe case. In Minn., therefore, the R. R. Co. is not an insurer in such cases, but is onlv bound to use ordinary care simply to fasten the turn table in ordinary fashion. The doctrine of the Keafe case is therefore limited ; to make the deft liable there must be reason to believe, first, that the dangerous object is likely to attract children ; secondly, that it is likely to result in substantial ham to thnm. (Professor Smith feels confident that these two limitations must be applied to the Keafe doctrine.) Thirdly, deft is not liable where where his land is left in its natural condition. (I. Beven, 2nd ed., 102, Notw l); fourthly, deft is not liable ; the child knew the danger and knew he had no right to go there ; fifthly, deft is not liable if the child has been warned of th*--- danger or forbidden to go on the land, provided th^ child is old enough to understand and remember the warning or prohibition. The authorities are not so clear on this. Tn 79 Texas, 356, the Court held that the R. R. Co. was not exonerated where older boys set the turn table in motion ; their intervention did not break the casual connection. SECTION III. DUTY OF C^RE TOWARD LICEI^STilE Hounsey._v^_Sriiithj_ p. 279, Cor. Bench Reports , Xew Series, 731, * ♦ « * The passing over :0 ''ORE OBLIGATION TO KShTP HIS LAI-TD IN SAFffi CONDITION FOR LICENSEES TLA^T FOR TRESPASSERS. Reardon_v^_Thom£sonj_ p. 281, I,:ass., 1889. * * * * A bare licensee, to be sure, has a right not to have force negligently brought to bear upon hira, but as a general rule he goes upon the land at his ovm risk and nust avoid the dangers at his peril. In 38 ':. E. R., 187, deft by his o\vn act caused additional danger of ';Thich plff had no notice. Plff recovered. The ruling on page 282, that "an open hole which is not concealed otherwise than by the darkness of night is a danger which a licensee must avoid at his peril" is not true, unless the danger is of Ion standing. Gautret_v_^_Egertonj_ p. 282, Law- Rep. 2, Con. Pleas, 371, 1876. No allegation that danger was not apparent nor that it was not knov/n to deceased, nor that danger being one not readily apparent to passengers, was known to deft. So the case is like f'ounsell v. Smith. Plff, of course, failed on his declaration. Campbell v. Boyd, p. 286, No. Car., 1883. ■"'he paragraph on p. 288 begirjiing "the law does not tolerate" is not true. Left is bound to give notice of concealed dangers known to him, but not of apparent dangers or dangers unknown to him. The court laid great stress on the plff 's having BTIir"" UTAriTED. Left knew of the defect, the defect was concealed, and there y/aa nothing to put passerby on his guard, and deft had an opportunity to warn plff. hence deft v/as liable. In 28 N. E. Rep., 187, a barb wire fenced was stretched across a way which the public had used by license of the owner. HELD, that the land owner was obliged to give some reasonable notice of the revocation-^ohliged to give notice of a change making the prer.ises more dangerous. ^-k^^lLJL^Jl^^^'^Zi. P* 288, 6 Law T. Rep, New geries, 684, 1862. The duty to • a licensee after he gets upon the land in similar to the duty towards a trespasser after he gets on the land, as regards def t ' s conduct, although not under obligation to keep land in condition to be trespassed upon, yet after trespa,sser gets there, he is under obligation not to hurt hira by act cf negligence, Plunra er v . Di ll, p. 292, Mass. , 1892. Plff. went for her own convenience, and not on business for deft. It is not enough that it is business of plff alone, but it must be the business v/hich is or might be of pecuniary'' Interest to occupant in order to make jilff . a business visitor. Read this case after -42- Indermauer v. Dames, post next. Authorities both ways as to whether person seeking work on prenises is a "business visitor ; 101, N. Y. 391, and also reported in 54 Amer. Pep. 718, L. P- L. , ER., 2 C. P. Liv,, 308, Beggar not so. As to peddlers, drurnmers, book agents, etc., they vould probably not be held to have right of business visitors unless their presence was expected h^r deft. Ver'^ doubtful question. Note C, Clerk & Lindsell on Torts", 372, 374, oritices rule that occupant, as to business visitors, must keep premises in reasonably safe condition. Warning of danger must supply such care. SECTIOTT IV. DUTY OP CAKE TOWARDS IR^ ITED PERSONS. Indermauer v. Dames, p. 296, Law Rep. I. Com. Pleas, 274, 1866. The business for which plff v/as present was POR T?IE /DVANTAGE OP BOTH PARTIES, hence he is said to have been there by implied invi- tation. Invitation as used technically does not nean invitation as used ordinarily ; business visitors v/ould be better. Duty towards these is greater than that to licensee ; not onl,^'- to warn them of concealed dangers, but to tfike reasonable care to ascertain whether there are concealed dangers. Business visitor is one who comes impliedly on invitation of owner on business which is or ought to be of pecuniary interest to owner. Licensee is used sometimes to mean that express permission is given, and at other times to mean license by sufferance. One nho goes upon land without owner's permission takes risk of. apparent (not hidden) to owner. Owner owes duty to warn licensee of con- cealed dangers knovm dangers/ Occupant and licenser, or owner, is not liable to take ordinary care to ascertainwhether there is danger or not. Although he is bound to give notice of such dangers which he has such knowledge, he is not bound to acquire such knowledge for benefit of licensee. See Clerk & Lindsell, on Torts, 372, 374, Southcote_v_^_Stanle2;,_ p. 303, I. Ilurlstone ft Norman, 247, 1856. On demjirrer to declaration, which stated that plff was there as a visitor, not as a paying guest. No allegation that deft knew of defect in door. Case holds that a person invited in ordinary sense of the word, not as a business visitor, has no more right than a licensee. Strong argument against use of word "invited." This case is law in England but has been strongly attacked. -43- Pavlsjy. Central Congregational Society, Mass. 1880^^ p . 306. Business visitor is confined to persons who are invited on what is or iaay te to the pecuniary interest of occupant. Court here lays great stress on def t ' s invitation, but decision can "be sup- ported on the ground that walk was not properly guarded, and that under the circumstances deft might have been liable to a licers'-e. Colt probably would have decided Southcote v. Stanlejr contra to English court, which case has been severely criticised in England, because guest does not stand in same relation as a servant. See Pollock. In U.S. question in open, but tendency is to differ fror^ IT. S. Sweeny V. Ol d Colony, &c., R.R.Co., p. 308, I'^ass., 186 fi. This case is often cited as deciding that defts were bound to keep crossing in order, but it held only that if flagman was there he must not be actively negligent. Railroad gave public to under- stand that it v/as safe to cross by keeping a flagman there to give signal. Case is clearly right in itself ; even though plff were only a licensee ; if public was only a licensee it would have ri^t to be protected against, or warned of hidden dangers. It seems as though there were greater right for public against railroad where the latter has fitted up crossing so that public ma.y pass more easily. Argument vs. this in Thorndyke's Argument, in 155 T'^ass. 472 ; 22 S. 1. R. p. 551 ; Arg\jment vs. Thorndyke, in 60 ]^'.W.Il. , 669. As to liabilitj'- of land owner to persons who are in exercise of right although not on invitation, as sheriff serving writ. Courts probably hold that it is at least as high as that towards licensee. Occupant could hardly b^ held liable, if he had no reason to suppose that any one would come in. 34 IT.S.R. 1113, Court held fireman was no better off than a licensee. Z>2 IT.E.R, 182, 111. 135 L^ass. 116, 138 Mass. 315, 38 IT.Y.Sup.Ct. 143, seem more inclined to favor plff. As to premises in possession of tenant, where third person is hurt by defect, as to whom plff shouDd tensue tenant and when landlord, see Bev. on Keg., 1st ed., 1074, 1075, 2 S. & R. on ITeg. , 4th ed., Sees. 708-713. Fireman only liTjensee, 29 Atl. R. 562. Duty of land owner to refrain from harming by negligence after presence is known, is the same with regard to trespassers, licensee and business visitors. As to defects in the ^remises, his duty is more difficult to state. How is it as to trespassers ? Practical- ly no duty. As to licensees, duty is to warn him of concealed dangers known to occupant but no duty to ascertain dangers. Bound to give licensee benefit of his knowledge, but not bound to acquire more knowledge. To business visitors there is additional duty to use due care"in discovering dangers and giving v/arning. But this is not statement ordinarily made, which is that duty is to keep premises in reasonably safe condition for business visitors ; 101 N. Y. 391 ; L.R. 2 C.P.T). 108, contrary cases as to man entering to seek employment. When it is once determined that a man is a business visitor, there is no doubt as to dut; owed him. VAiere there is no reoresentation t at a R. R. cro .-wing is a highway, duty should be onl^'-" that to.mrds licensee. Yom can find any statement vou want on this point in the books. Sweeny case all right, as AT TirH ITO'T^KT THAT THE ROAD ''fAS SAFE,. -44- CIiAPTER VIII. EXTRA HAZARDOUS 0CGUPATI0XS---AGTI:TG AT PERIL- -DUTY OF INSURIITG SAFETY. Pletcher_v^_^^lands_^ p. 316, Exchequer, 1865. * * * * This judgment was affirmed in the House of Lords, Lord Cairns drawing a distinction "between a natural and a n&n-natural use of land, holding the land owner absolutely liable for damage caused by latter. The majority of the Exchequer said practically that deft was in no fault, and that if he is not in fault, he is not liable. It is true that there was no personal fault on the part of deft, but the persons he employed were negligent with reference to the shafts discovered in not providing for the suffi- ciency of the reservoir to bear the weight of the water which, when filled, it -Yould have to bear. Professor Smith thinks the case ought to have been decided on this ground ; that deft was responsi- ble for the negligence of these persons even thoup;h they were inde- pendent contractors. The case seems to be wrong or this point. Bish. Non-Con. Law, Sec. 829, Note, 125 Mass. 240. The nature of the duty was such that deft could not exonerate himself by the employment of an independent contractor. The coii.rts above ignored this point. They assumed that there was no negligence on deft's part, and then went on to decide the case in the absence of negli- gence. The student should commit to memory the sentence at the top of page 333. It is the ratio decidendi of the case. Next in importance to this is Cairns' statement about natural and non-natural use of land. Cranworth goes s imply on ths ground that plff has been dar-:aged, and not on the question of lack of care by deft. This is the oldest of the three theories in the case. Granworth's theory, in the first place^, cannot possibly stand. It would simply amount to transferring the hardship fron one to the other. It imposed the entire loss in the faultless deft, merely because he is the innocent instrument through which the damage occurred. 'Sut it might be suggested in favor of the decision in thirj case, that as deft had the profits of the reservoir, he should pay the damages out of them. For a criticism of the maxim : sic utere, &c., see 9 Harv. Law Rev. 14-17. By natural and non-natural use Lord Cairnb se^-ms to have had in mind a distinction between the use of something already on t e land, and something not on tJ-e land. "lairns' decision is not maintain- able ; it is criticised on p. 63 of the Cases. Cairns' view of doing it at deft's peril is criticised ir. riarkby's Ele. of Law, cd ed.."sec. 693. See also 33 Atl. Rep. 286, bottom of 289. An important case is Coal Co. v. Sanderson, 113 Fenn. State, 126, contra is 33 Atl. Rep. 286. As to the falling of a house being prima facie evidence see 57 N.Y. 567 S. C. -m. Rep. 530 ; L. R. 5 Q. B. 411'^^ S.G.L.R. 6 Q.B. -45- 759 ; 40 Pac . Rep. 1020, authorities, 41 K. E. K, 51. Per a discu.ssion of the Sanderson oase, supra, y Pepper, see 31 Am. Law Register n.s. 38-44. For the history of that case by Guest see 5."! An. Law Register, n.s. p. 1 and at p. 97, 145 Pann. State 324, is distinghished from the Sanderson case, as here th- OMvner was bringing something on the land frou a distance. In Nauck v. Co., 153 Penn. S+ate, 366, S. C. 34 Am. State Rep. 710, the oil was not taken out ofi the land through which it was carried. L. "R. 1 Indian A;jjeal, 364, Madras i:. R. v. Zemindar, supports principal case because the tanks are absolutely necessary for development of India; decision of Jiidges in India is more import- ant than judges in England. 41 "Pac. R. (Mont) 431 Is like Indian case. Similar case in Gala. As to sa^^ing that aeft is liable in these cases because he committed a nuisance may mean something which is not actio'-!able, and using it here does not advance the reasoning at all ; simply a citcle — it is a nuisance because it is actionable, and it is actionable because it is a nuisance. Also Cooley on T. 2nd ed. 672 ; 3 Blk. 215 ; 1 Ilarv . Law Rev. 123, 125, Langdell. Courts of every country will probably hold that there are some acts which if done in that cornraunity are extra hazardoiis, and deft must be an insurer as to such acts. But the test as to what is extra hazardous varies in the same community at different dates, as Pulton would probably have been held liable if his first steamboat had burst and caused injury, though losses case in W.. Y, is contra now, when steam is so generally used. Se--^ Pollock on Law of Praud in British India. Thoughts of Pascal, London ed. 1888, p. 61, is wrong : facts are different in different countries, as keeping an elephant in England and the same act in India. Pollock on T., end ed. , 420, 421, 426 ; magnitude of danger and difficulty of proving actual negligence as to the specific cause of the harm. Holmes on Com. Law, 154 : The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community. Innes on Torts : Such things as tigers, etc., however carefully kept, imperil the rights of others, because they cause danger in the absence of a degree of care and prudence, . the continual exercise of which cannot be expected. Degree of care necessary is so great that it cannot be expected that people will continually use that care, therefore they ought to be held to be absolute insurers. 'Rxrerlreents and ne^i r-p+hods will largely be held to be at the risk of the experimenter. ; courts will also be very slow to hold doctrine of insurance as belonging to user of any kind which is common or necessary or hlghl^^ beneficial. Blackburn's test at top of p. 33 improved by inserting "likelt to escape" after word 'aiything." If we adopt Blackburn'. s test we will hold owner of land liable for many things necessarily done upon lci.nd. As to the analogies men+ioned in case, seme of them are exceptional, p. 558. Blackburn and Bramwell in their analogies have taken specific cases and ipnored other psecific cases v/hich are not sc exceptional, but are more araple in their application. Analogies in support of cases are, trespasses by cattle and liabi- lity for fire. A.s to carriers and innkeepers, great liability. -46- more than ordinarily, is imposed on them, "because they have a chance to charge extra price, knowing their extra liability, ard that the public has to trust people in such public employments. As to alkali, it is answered in Brovn's case f olloA-ing. As to filth, it is the same thing as principal case over again, ^IThen a man Guilds a dara, his precise purpose is to keep. the water back, and he can ascertain how much land -Till be covered liy the water ; complaint is tijat he persisted in holding back water, althou_^i he knew it flooded the land. Gooley on T., 2nd ed., 6'77-680. But as to water overflowing land below by bursting dam, it is not so. In latter case deft also a loser by accident, while in former case he overflows lanfl for his own gain. As to selling poisonous articles without proper label, it is clearly negligence. Cases of damage by blast in;: r^o^s, authorities are in conflict in IT. S. Ha.y V. Cohoes Co., 2 IT. Y. Ib9 ; S. G., 51 Avi. ^cc, ^7? , Beethv. R. R. , 140 N. Y. 267 ; S. G. 37 Am. State Reports, b52 ; 9 Lewis Am. R. R. ^-. C^ip. Cas^b, s<;, ,i;i.-cii important note. As to analogies in general, see 2 Austin on Jur. 3d ed. , 655, 654, 103(^-1036. As to authority of R. v. R. , subseq^uent cases in England try to distinguish it. Pollock's lectures on Law of Rraud in India, p. 53, 54 ; it is followed only in the letter and not in the spirit. 5 Harv. L. R. 186, N. I. In U. S. majority of the states have not decided the point. Cfhill v. sjastman, 18 Tiinn. 384, seems to accord witr the principal case. Mass. seems to accord Si J., H.H., and IJ. Y. are strongly contra. Two tendencies now : Rirst, to extend liability for negligence, i.e., for consequences of negligence in fact ; second, to restrict liability in absence of negligence or wrongful intention. If Fletcher v. Rylands is to oe adopted at all, Professor Smith thinks Blackburn's rule (see p. 333) should read "anything likely to escape and do mischief," rather than as it does. But he does not even then agree with it. 'lk9.]l2llJLi.J:lHL^l^^^j—--2j—-i^J.- Exchequer, 1876. * * * Differs from Rletcher v. Rylands, in that there deft did the injury directly, though in ignorance. Here deft merely kept the Water, which' was set loose by another agent over v/hora he had no control. As in case of other duties imposed by law, act of God or public enemy is an excuse. Here the forces of nature which broke the dam were gravitation and an unusual storm. The former is a force constantly at work, the latter is one which no one would expec+ and f orsee. Such forces of nature as one could not Ye&aon&bly be expected to guard against are acts of God. This case establishes an exception to Rylands v. Fletcher, where the lo,.s is occasioned by an act of God. Under this rule the jury can practically mitigate the .rule in Fletcher v. Rj'-lands whenever it seems too hard. See Pollock on Torts, 2nd ed. 428. 5 Harv. Law Rev. 186 Note, has some good remarks upon how Fletcher v. Rylands is treated in England. -47- l°5_Ii_£lik'k> P* 249, Exchequer, 1879. At first glance this case would seem to come under Fletcher t. Rylands, but instead estahlishes the principle that if the escape of the -iangerous article can "be ascribed to the wrongful act of a third party, the deft is not liable. It is a recognized exception to Fletcher v. Rylands in Flngland and would probably be followed in the IJ. S. If Fletcher v. Rylands is correct, this exception ought not to apply to a case where daft could reasonably forsee the wrongful act, but it is doubtful whether the court would actually hold a deft liable ir, such a case. Marshal l_v_^ ^ElklLll^ p^52, ?: . J., 1876. * * * * HmILD, that this charge, though supported by Fletcher v. Rylands, is wrong. The judgment in that case extends to the rule applicable only to a few very exceptional cases, such as that of trespassing cattle, into a general principle. No foundation for the principle that a man is liable for damage caused by lawful acts, flone with care. THSRi5 MUST BE CULPABILITY. It vvaa a question for the jury whether there was any neglect on the part of deft in this case. It is also so held in Losee v. Buchanan, 51 K.Y. 475. Brown_v_^_ColliMj_ p. 357, E. H. , 1873. * * * A man is not liable where, as i^i this case, superior force overpowers him, and uses hin or hiy property as an instrulemt of violence. A driver of Jiorsas it not liable for damages to real estate, done by them, if he loses control of them without any negligence or fault on his part. This case differs a good deal in facts from Fletcher v. Rylands, but that case is considered much in the opinion. This is one of the ablest opinions against that case. This and 'Marshall v. Welwood should be studied carefully. They contain the chief anti F. v. R. arguments, F. v. R. has not been overruled in England, and there is a tendency to follow it ia some states in this country. CHAPTER IX. LIABILITY FOR FIRE OR EXPLOSIArES, 5^H3._Ij._II2:£2:£.1Zj. P* *^^®' ^ Victoria, P. Upper Canada, q.B., 448. * * * Here deft was engaged in doing a necessary act with due care, when an accident wan caused BY ACT OF GOD. To hold hin liable would be to depart from, settled principles. If -/e ©i^ply Fletcher v. R., deft woula have been responsible. But court holds that lighting the fire is indispensible ; such acts are so coramon and so necessary that deft must not be held liable. Law in En land is unsettled, but in U. S, It: is v;ell -ettled in accord Kith this -48- case ; that one who, without negligence, sets a fire on hia premises for lawful purposes, and watches it with care after it is set is not liable for damages caused by it in absence of negligenca American doctrine as to fire applies to manufacturing and mechanical purposes. Would probably also hold as to setting fires for amusement. Batchelder y. H eagan, p. 372, Maine, 1840. The instruction given in the last six lines, p. 572 of the Cases is incorrect. Proof beyond a reasonable doubt is only required in criminal cases. In a civil action you have only to prove a balance of probability unless in some courts. Unless the facts proved arson here, the court erred in saying that plff must prove beyond a reasonable doubt. Deft is not liable without negligence, and the burden is on plff to show that deft was negligent. ?H:^r°Mggg._l.»_Housatonic R_. H. Co^j_ p. 374, Conn., 1842. Court below thought this was an extra hazardous use of land, and deft must do it at his peril. But state had authorized deft to do it, carefully and not negligently. Effect of charter as protec- tion is first, against indictment as public nuisance if road is run in usual manner, and secondly, it seems to be regarded by weight of authority as preventing the courts fron holding that thio is an extra hazardous use. Legislature could not authorize R.R. to run its engines carelessly and negligently. There are statutes in some states whicji hold R. R. Co. liable irrespective of negli- gence if fire la started by locomotive sparks which statutes are p-enernlly held constitutional. Where deft is not an incorporated R.R, Jiidge would probably allow a charge to Jury tlat carrying fire around in locomotive was per se negligence. If -^ -ere was a charter from legislature, Courts which adopt P. V* R. would not submit to jury whether it was negligence, as a matter of fact, to do precise thing legislature had permitted to be done. 136 Mass. 2S9 ; 155 Mass. 533. H'--eg v_. ^riightj_ p. 379, New York, 1880. S. C, below, 16 Hun. 257, contains better statement of facts. Nuisance per se is an actionable tort. Authorities somewhat in conflict, but this is Smith's view ; one who manufactures dangerous explosives or who stores them in large quantities in such a locality or under sucl" circumstances as to cause reasonable fear to persons living in the vicinity, is liable, irrespective of negligence in the mode of manufacturing or in keeping, for all dar.aages by explosion. QJTSRY, whether authorities might not hereafter justify us in adding : Unless ir case of storage the magazine is located so as to endanger as few persons and as little property as possible and yet be reasonably accessible as a point of supply and distri- bution. Taken frcr. Trunkey, J., 91 Pa. St. 251. Possibility cf a great danger has same effect as probability of a less one. "REASONABLh! TEAR" supra, means "Whether person of average nerve and courage would be put in fear. In the U. S. it is a question for the jury and the test is whether the owner was T'/JCIIjG A REASONABLE U SE OF HIS LAiro. -49- The American law is well settled that if a man is using fire on his own premises for a lawful purpose, he is not liable unless for negligence. Time, place, etc., may show negligence, but there must he negligence to make him liable. Some courts might apply the natural and non-natural user test, but generally in this country the above rule is applied with the qualif ixzation that deft is using due care under the circumstances. It would make no difference whether the fire was for ajnusement or for business purposes, Cooley 2 ed. p. 700, but Professor Smith would hold the defendant liable as the reasons for a contra decision do not apply, the fire being unnecessary for amusement. CIIAPT'ER X. LIABILITY OF OV/NER OR KEEPER OF ANIMALS SECTION I -- Trespass by Animals on Land. Wells V, Howell, p, 384. N. Y., 1822. * * * HELL, that every enwarrantable entry on another person's land is a trespass, WHETHSR THfi LAIH) BE ElIGLOSED OR KOT. A person is equally answerable for the trespass of his cattle as of himself. At common law, entry by cattle is same as entr,y by owner. At Common Law there is a fiction that all land is enclosed. To nawan da R .._ R . v . Mung e r , p. 364, N. Y. , 1848. In a case of I espass hy deft's cattle of plf f s land, it is immaterial that deft used ordinary care in keeping them. Deft is BOUND AT HIS PERIL TO K 'fSP HIS CATTLE AT HOME. Rylands v. Fletcher doctrine applied to cattle. No defence that even extraordinary care was used to keep them out. Noyes v. Colby^^ p. 385, N. H. , 1855. Had H driven the cow onto deft's land, deft would not have been liable, but as soon as E left the cow she was restored to owner's possession. (This latter is not true of all things, but is of cattle. ) It is a hard caEe, but the weight of authority is with it. Blackstone seems to say that the ground of the rule is negligence presumed by law. Brown_v^_GileSj_ p. 387, I. Carrington <^. Payne, 118, 1825. It is difficult to restrain a dog or a cat and they do little damage, and so are allowed more liberty by custom than other animals are. These are th'^ chief reasons for not holding the owner liable for trespass, 45 Wis. 536 is contra to the p**inclpal case and in accord with Doylp' v. Vance. -50- If the dog was in the hatit of co:imitting such injurv, and the owner was notified of that habit, he would be liable as'much as for the trespass of a horse or cow. Ames Cases on Torts, p. S43. Bish. Non-Con. La^/, 1233. Plff afterwards introduced testimony to ^ ow that deft on another occasion personally entered the close, and therefore plff obtamf^d a verdict. ESLD, that no recovery could be had for en-cry bj^ the dog without indictmeBt by the master. If dog accompanies master and does substantial damage, plff could probaT;ly recover. Case is authority tliat iv "Wnglpnd owner of do^ was not liable for nominal damages by dog's entry on p^-ff's land. Ii]:l®i*_l^_l^^dj^_ ?• 387, Q. B., 188'^. Rule here is correct. Easy to restrain animals when in pasture, but more difficult to retftrain them fror: temporsirily straying when driven along highway. Greater liklihood of doing "substantial damage where animal strays from owner's land to neighbor's of its own accord, than where it is driven along highway, though in principal case the damage happened to be great. Owner of certain kind of animals is under an absolute duty, irrespective of negligence, to prevent hia animals from straying on another's land, except when straying fron the highway while being lawfully driven thereon, V/hile they are so la,wfully driven on highway, he is only bound to take care that they do no t stray through negligence. Clerk & Lindsell on Torts, p. 8. As to analog'" in Fletcher v. Rylands, breaking out of cattle is more common, but breaking away of reservoir will cause much more damage : one reason for rule in cattle cases is the great chance for faise testimony, which would not be so great in reservoir case. In reservoir case ov/ner has an interest in his reservoir not breaking away, but in cattle cases owner has an interest in their feeding on another's land. Also, remedy is impounding. It is almost valueless if negligence has to be proved. In U. S- also rule as to trespassing cattle has been abrogated. E§S5®?l_Ij-_5ii5.®iii. P* ^^°» Iowa, 1856. ♦ * * But only so much of the coxruion law has teen adopted in this state as is applicable to the changed conditions of life here. This particular principai^.Us ill-adapted to a new country. Long usage to the contrary, ajid a series of statutes on kindred subjects shov; that it has nevef been adopted. Crops are universally enclos- ed and cattle allowed to run at large. Universal understanding of the cortiiaunity had great weight. Old common law rule is rejected generally throughout the South and West. This case shows that it has been rejected so far that the land-owner cannot impound. The owner of cattle is not liable if his cattle go- on another'-s land in that part of the country, but he has no right to have his cattle on another's land. The land-owner can keep them off by anv means he chocs es short of injuring the cattle. -51- LL /, ^ r y^ili°il_Paci£ic_Rj:_R^_v^^ollins^ p. 395, Kansas, 1869, '^'^ Court "below ruled that cattle running at large upon the u^.ii closed lands of another are not trespassers ; that owners have a right to allow then to run at large for purposes of grazing. This is wrong. Cornmon law has not beer repealeid in this state. Statutes modify it somewhat as to damages recoverable, and probably make it contributory negligence not to have a proper fence. But while they allow cattle to run at large upon public lands, the legislature could not give the right to go upon private property. This holds that common law has been changed so far that if B's land is enclosed, and A's cattle go there, B has a right to drive them off, but has no right of action. As to change in eominon Law, see 133 U. S. 3^0, holding that as to public land of U . S. there is an implied license that they shall be free to the use of the people while the:/ are not enclosed. Hossell V. Cotton, p. 397, Penn . , 1858. * * * If owner is liable in this case at all, it is in an action on the case, founded on bailee's mismanagement. Test here is that person who HAS THE RIGHT OF C CNTROL FOB THE TI'TR BEING is the person lia,ble for trespassing cattle. If carried out, would hold that owner w;:s not liable for negligence of the agister if owner >ad used due care in selection of agister. 54 Ills. 307 ; 70 Ills. 291. Blaisdell_v_^^toii®j_ P* ^^^^ > ^' ^' > 1881 • The Penn. case says the damaged party can only sue the bailee, not the owner. The li . H. case holds that the owner is liable ani would probably also hold the agister liable. There are cases both ways. Of course if the owner trespasses with hio animal^, he is liable for damage done by them. The owner of certain kinds of animals is under a duty to prevent them from straying on another's land, except when being driven law- fully along the highway, and then he is bound to use due care to prevent them from going on, and to get them off speedily. Holmes Com. Law, 156, says t?.at animals are inclined to stray, and It is difficult to prove negligence of the owner, and the safest way to insure care Is to throw the risk on the owner. That the difference as to cattle driven on the highway is that there it is easier to prove negligence and harder to restrain the animals ; further the ow^er is bound to get them back at once, and so there is less llklihood of their doing substantial damage than when stray- ing from the pasture. In the latter case they may not be discovered for some tinB . If a man finds stray cattle on his land, he may destrain them and may Impound them for damages. If not paid, he can sell them. As to Impounding, there are so many loopholes in the process that it is better to bring trespass unless owner of cattle is utterly -52- insolvent. L. E., 1894, 1 Q. B. 608, where land-owner brought trespass while he still held cattle impounded, was held that he must elect his remedy. 15 Johns 220, HELD if he impounds and relinquishes, he may hring action cf trespass. In 13 G.B.N.S,, 438, dictum that owner may be held liable for tresrass by poultry. Cro. Jac, 490 looks as if owner ma^ be held liable for trespass by pigeons. 46 Pa. St. 146, as if hogs could trespass. 8 Barb. 630, as if Bees could no;^ trespass. Innes on Torts. 98. 99. as if they could. ' ' ' The rule that a man is not bound to fence, but is bound to keep his animals off the land of others applies to horses, aheep, cattle, probably to hens, 13 Com. Bench New Series, 458 ; to geese, Crokes James 590 ; to hogs, 46 Penn. St. 147 : not to bees. 18 Barber, but Innes on T. contra. Animals, vdiich are now the subject of property and are likeljr to stray and do damage are included within the rule. Whether the law would go farther than this is doubtful. The old test of . property hand animals is gradually being abandoned, and the new * test is not well settled. If an animal of the class not likely to do substantial damage while trespassing has, in fact, a propensity to do such damage, the owner is probably absolutely liable for trespass by that particular animal after the owner has notice of the propensity. SECTION IItt Damage by Animals, Other than Trespass on Land. May V. Burdett, p. 401, q. B., 1846. Declaration alleged the ferocious disposition of the animal and deft's scienter. There was no averment of negligence, but the court HELD that it was negligent to keep such an animal after knowing its mischievous propensities. One must at his peril keep a dangerous animal. In 10 Gushing 590 a declaration containing scienter was held sufficient. Fi lburn v. People' s P alac e and Aquarium Co.^ Ltd., Q. B. 1890. Court took Judicial notice of the fact that elephants are dangerous, notwithstanding verdict found contra. Depended on customs of the coinraunity, and would not be followed in India. If deft keeps an animal, he is bound to know what the general belief is as to the danger of that animal or class of animals. Court here thought it best to establish general rule of law that if animals as a class have dangerous propensities owner cannot escape because he thought this particular animal did not have those pro- pensities. . In 38 Barb. 14, plff 's hore injured by fright at sight of an elephant on highway ; deft not liable. Even if an animal belongs to a dangerous class, owner is liable only for such class of damages as animal has a natural propensity to cause. -53- Buatdndin v. Sharp, p. 406, Pasch. 8 Will. 111. C.R. 2 Salkeld, 662 Declaration for injuries received from deft's bull is bad if it does not allege scienter. Court holds that intrinsic nature of a bull is not dangerous to man ; distinguishes nature of a bull here from the nature given to elephant by court in preceding case. Mason -g,. K eeling , p. 407, 11 William III, IS Modem, 332. Even if the injury had been to a sheep, the declaration would have been defective without the scienter. Scienter must be alleged to recover for injury to men or beasts by a dog. Statutes <»^ generally reverse ta common law on the subject, even giving double damages occasionally, and that without scienter of course. Bish. Fon-Com. Law, Sec. 1233, 1241 and 1239. The reason for that is probably the difficulty of proving the scienter. But the legis- latures probably differ with Lord Holt on the question of the dog's nature. If scienter is proved, negligence is not an element in the case, according to weight of authority. Fl eming v. Orr . p. 410, quoted Note 2, Macqueen's Scotch Cases in House of Lords, 25, 1853. Lord Cockburn, In Scotland, if a man's dog worries sheep, the man is liable, regardless of knowledge of the dog's vislous propensities, on principle that it is negligent keeping of a dangerous instrument, to leave a dog so that he can get at sheep. Reynolds v. Mussey^^ p. 411, N. H. , 1886, What is proof of scienter ? Here the injury was by the fore feet and the owner knew that he was liable to injure by the hind feet. That is sufficiently similar. If the injury had been by biting, the proof would probably not support the scienter. "Substantially similar" is the test. You do not have to show the actual performance before of the same or a similar injury, but only A PROPENSITY TO 10 SUBSTMTI/LLY SIMILAR INJURY. It need not be of precisely the same character as the actual injury, "Vicious- ness" is a fcisleading term. Propensity to do such harm in play is just as fatal. Deck er v. Garamoiij^ p. 413, Maine, 1857. Thomas on Neg. 529, 531, very late authorities on this subject. Declaration was not literary, in Trespas quare clausum f regit, but it does allege that horse was on plff's land. Often said that if deft*s animal was wrongfully, as against the plff, in the place in which, etc, then owner is liable, not merely for the damage donate the land, but for all damages, although they are not such as could be expected from that animal. But it is also said contra to this, that even if animal is trespassing on land, owner is not liable, even then, unless damage was of a kind he had reason to suppose animal likely tc do. Authorities in conflict and irreconcileable. -54- If the animal is lawfully on the land, scienter must be proved. If trespassing on the land, scienter need not, according to some authorities, be proved. The extended liability referred to above is only to the owner of the land, and any one who can be identified with him. D02le_v^_Vance, p. 416, 6 Victorian Law Rep., Cases at Law, 87, 1880. * * • The dog was a trespasser, and owner is responsible for any damages resulting from the treapass. Old notion that dog could not trespass Is not well founded ; there is no difference between a dog and an ox in this respect, HELD, that IF AITIMAL WAS TRESPASSING, owner is liable for the damages CAUSED BY HIS TRESPASS. Change of time and place produces changes in law. 43 Wis. 536, Doubtful in some states as to whether ov7ner is liable for dog's going upon land of another. Very little authority, but a tendency to hold the other ^vay. Statutes generally cover the point, Fal lon V . O'Brienj^ R. I., 180. Horse was not a trespasser as against plff, 49 Conn, 113, deft turned his horse loose on the highsrey ; deft liable for injury to child. Cox V . Burridg e, p. 423, 13 Cora. Bench, Few series, 435-7, 1863, Where a horse strays on the highway and kicks a person, owner is not liable merely because he was negligent in allowing horse to be there. It must also be proved that owner had reason to expect that the animal might do sccie injury of that sort, for it was contrarj/^ to the ordinarj'^ habits of horses. It did not appear how the horse £cot there. The injury he did was to the person. In 18 C. B. N. S., 722, Lee v. Re illy, deft's horse got on plff's land and injured plff*s horse ; deft held liable. His horse was trespassing as against plff. Clerk & Lindsell, 345, Note distin- guishes these cases on ground that it Is not in the ordinary nature of horses to kick human beings though it is to kick other horses. SUMMARY OF THIS SECTION. some If B's horse escapes onto A's land and kicks A's horse and child, owxiie authorities differ, but the above is probably the law, Beven on Neg, 1143, Injury to A's horse, it being natural for one horse to kick another, but that he is not liable for injury to the child without proof of scienter. The owner of animals Is absolutely liable for injury done other than trespass to land, if the animal belongs to a class having a natural propensity to do the kind of damage in question ; or if th^ particular animal, though belonging to a class not naturally so inclined has a special propensity to do this particular kind of damage and the o\nier is aware of these propensities. In these two -55- cases, negligence need not he proved. Some authorities hold an owner liaTale for any damage done while the animal is trespassing on plff's real estate. On this there is a conflict of authority, especially in cases where the damage is of a kind which that class of animals could not "be expected to do, and the owner has no know- ledge of the propensity to do such damage. Whether tn animal is of a dangerous class or not is a question for the court. In 38 Barter, the owner of an elephant was not held liable for frightening a horse on the highway. If the animal is known to have a propensity to do the damage, it is no defence that the owner used the greatest care to prevent an escape. The owner is liable aa an insurer, regardless of negligence. But deft is not liable as an insurer if the animal is liberated by vis major or by the tortious act of a third party. There is no case or these defences, and the authorities differ, but the above is probably the law. Beven on Neg, 1143; Innes on Torts, 74, 104 ; Clerk & Lindsell on T. 352 ; Bramwell in Nichols v. Maraland. If an animal belongs to a dangerous class, it is no defence that the particular animal has always been tractable heretofore. Where scienter is necessary and proved, then negligence is out of the question. As to animals not dangerous as a class, it would put tco great a hardship on agriculture and commerce to hold deft liable without proof of scienter. Decker v. Gammon probably goes to an extreme, and perhaps mpst authorities hold that in such a case deft is liable for such damage only as may reasonably be expected from the animal. Dogs stand alonel. Bis, Non-Con. Law, 1253. Deft was not liable in the old law for trespass of his dog. the dog not being regarded as property. The weight of authority is still that deft, is not liable, although dogs are now held to be personal property. But the owner is liable if the dog is sent on the land or follows the master, or if the owner (deft) knows of a special propensity in his dog to trespass and do any special damage. At common law the owner was not liab:le for damage done by other acts of his dog than trespass without proof of scienter, but this is changed now, owing to the difficulty of proving scienter, and the growth of a feeling that it is the nature of dogs to bite. English Judges, however, are influenced by the value of dogs for defence of property, and by a desire to have them for hunting and sporting. CHAPTER XI . DECEIT . SECTION I--Generally Nature of Representation. Pasl ey v . Freeman, p. 425, 29 Geo. Ill, 3 Term Reports (Dumford " & ^ast, 51). -56- This is the leading case on the suhject of deceit. A declara- tion in deceit should contain six allegations : 1. Deft made a representation. 2, It was false--falBe is here used frequently to indicate simply not true in point of fact. 3. That the state- ment was made by deft with a knowledge of its falsity. 4. That it was made with intent to induce plff to act upon it. 5, Plff did act in reliance upon it, 6. Plff was damaged by so doing. The declaration need not allege that deft was or eacpected to be personally benefitted by the deceit, or that deft was in collusion with the person who received the benefit. The false statement here ms not for the baiefit of defti BUT IT INJURED THE PUT. It was on a matter of opinion, and deft lied as to his own opinion. Deft was not bound to say anything at ^1, but if he did, he should have told the truth. The action was new in fact, but not in principle at that time. There was no privity of contract, and so the action is in the nature of tort and not contract, and therefore no consideration was neces- sary to be shown. And the Statute of Frauds had no application. Professor Smith says that where A gets goods promising to pay in future, but not intending ever to pay, deceit ought to lie, but it is an open question. See Pollock 442. The seller can at all events rescind the contract. In Long V. Woodman, p. 437, deft promised plff that if he would sell a horse to A he, deft, would pay the price. HELD, deceit did not lie. See extract from Pollock, p. 442, regarding such promissory statements. Edgington^v. ritzmaur ice, p. 442, Law Rep, 29, Ch. Div. 459, 1883. 25 Atl. Rep, 618, decided that decision only could be had in such a case, but upon Lord Bowen's view it seems as if plff could have there brought deceit. The most famous sentence in this case is that of Bowen at the top of p. 445. In 64 N. W. R. deft made a false statement as to his opinions and was held liable in decdit, Bowen, L» J., In Smith v. Land, &c., Corporation, says on p. 446, ••If tie facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best invo^-ves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion.** SECTION II — Representations Not True in Pact. Kidney v. Stoddard, p. 446, 7 Met calf, 252, 1843, ♦ * ♦ Pact that son was a minor was very material. Deft designedly concealed this fact, thereby indticing plff to trust the son in consequence of which he sustained the loss complained of. Deft, honestly delieved his son would pay his debts, and had not said anything untrue, but court instructed Jury that if motive of concealment was that if he did not mention fact of non-age, the son would be given a credit which he would not otherwise receive, he was liable. THE FATHER INTENDED THE PLFP TO RUN A RISK WHICH HE WOULD NOT OTHERWISE HAVE ASSUIfED, -57- Peek Y. Gumey. p. 450, House of Lords, 1873. Here ro -disclosure of material facts forms no ground for an action for misrepresentation. There must be some^ active mis- statement of fact, or at all events, such, a partial and fragmentary statement of fact as that the withholding of that which is not stated makes that which is stated absolutely false. Newell V. Randall, p. 450, Minn, 1884. While a purchaser when buying on credit, is not bound to dis- close facts of his financial condition, yet if he is questioned and answers he is bound to tell the *hole truth, and not give an evasive or misleading answer, which, although literally true, is partial, containing only half the truth, and calculated to convey a false impression. In the principal case the party received credit on saying he was worth ^3300 — not mentioning that he owed $2100, This was such a partial statement that it was calculated to deceive. The statfimaiit was naturally construed to mean that the party had $3300 free ^of encumbrances. Pollock, 2 ed., 556, says, "A statement may be untrue, although no part of it is in terms untrue, if by reason of material facts being (intentionally) omitted, THE STATEj^/rasrr as a whole is uttended to deceive." SECTION III-- Deft's Belief as to Truth of Representation. Mahurin v . Hard ing. p. 451, N. H. , 1853. * * • In assuinpsit on the warranty, actual falsity without knowledge or bad faith, is enough, but in an action of tort for deceit, intention to defraud, and knowledge that statements were false are the gist of the action. In an action on a warranty, plff need not prove scienter, but in deceit he must prove scienter. Warranty is defined in Anson on Contract, Huffcut's ed. 369, 372, note : Warranty is a promise of indemnity against a failure in the performance of a term in the contract — a promise to make compensa- tion, Markby 3d ed, , sec. 649, Nowadays plff can join counts for warranty and deceit in one action, 122 U. S. 575 is wrong. It is often very doubtful at the time whether there is a warranty or not : on the other hand, it is often hard to prove deft's knowledge, so it is hard to tell which action to bring. Counts for warranty and deceit should therefore be Joined if the procedure allows it. Anson on Contracts, 1st Eng. ed. 295, In deceit it is sufficient to prove either that deft ^ew the state- ment to be untrue or that he had no honest belief of it. Peek V. Berix, P* ^56, Chancery Div., 1887. Appeal Cases, 1889. * * * Absence of reasonable ground for believing statement true is not necessarily evidence of fraud, Praud is proved when it is shown that a false representation has been made, 1. Know- ingly, 2. Or without belief in its truth, or 3, recklessly, -58- careleasly whether it be false or true. In other words, to prevent a false statement "being fraudulent, there must always be an honest belief in its truth. If fraud is proved, motive is immaterial. Applying these rules to the finding of the judge below, it is clear defts are not liable. An important case, 5 Law Quarterly Rev. 421.. It is an open question whether it would be followed in this country. Opinion is generally against the House of Lords as to the facts. Defts knew that their statement was not an exact truth ; the prospect stated A PRESENT RIGHT to use steam power, but thay had not that right. It was sutject to two permissions ; they believed they would get permission, and thought that was the same thing. The House of Lords said a man was not liable if he HONESTLY BELIEVED what he said, however un'-easonable his grounds may have been. Assuming the view of Sterling, J., that defts stated what was not true in facts, but stated nothing but what they believed to be true, the Court of Appeals, held, that they must have reasonable grounds for belief in what they stated ; that if defts made a stateibent not true in fact, with the intention to have others act on it, they are liable if they had no reasonable grounds for tne belief, even though they believed it to be true. Some of the defts must have known that the facts stated were not true, and on the facts they could not honestly have believed what was in the prospectus. The House of Lords is right in Law. A man is not liable for telling a statement vfliich is false if he honestly believes it to be true, that is, not liable in deceit. If he makes a false statement in an honest belief of its truth, without any reasonable ground owing to carelessness, negligence, etc., in looking at the facts, some writers, including Pollock, say he ought to be liable in an action on the case for negligence, and in England such a liability is created by Parliament. But the point is not settled by decision. Plff could introduce evidence that there was no reasonable ground for the belief simply to show that deft did not believe what he stated. Middle of p. 476. The general opinion of the profes- sion since Peek v. Derry has been that am action of negligence will not lie in such a case. Professor Smith thinks that, taking the view of the facts taken by H. of L. , the decision is right, because the plff alleges deceit, and proves negligence, which is a variance Herschell's three classes of false representation can all be put into one, that is, WHEREVER THERE IS NOT AN HONEST BELIEF IN THE TRUTH OP THE STATEEffEHT THERE IS FRAUD. Cabot V. Christie. p. 432, Vermont, 1849. Clearly right. Plff joined a count in contract with a count in tort. He could not recover on a contract of warranty unless he had such warranty in the deed. There is a difference between a statement as to the size of a piece of land, and as to the credit of a person. The latter is always or nearly always a matter of opinion. The former is susceptible of actual knowledge. If a fraudulent representation is material and relied on^ the party deceived is entitled to recover damages, even though the jury would think that he would have made the purchase without this representa- tion. What the party would have done if the fraudulent inducement had not been held out, is a mere speculative inquiry, and not the test of the plff's right to recover. -59- Haycraft v . C reasy. p. 485, East, 92, 1801. * ♦ * Words must te construed in view of thf^ subject matter. Distinguished from preceding case "by subject matter. In first case suljject matter was a thing which could "be got at with accuracy, and is usually known by the owner, but in principal case it is almost impossible to arrive at absolute accuracy, and it is a matter concerning which the ordinary impression is that deft is giving only his belief, and that indiat deft said as to her financial responsibility was sJraply an expression of opinion. What was the meaning of the statement is the question ; it is a matter of construction of deft's stat^ent. professor Smith does not say that he agrees with case or^Tf acts , in view of deft's statement that she had inherited money. 46 N Y. L. R. 380 might not be followed. 41 N. E. R, 414, matter of common knowledge that directors have very little knowledge of tie business of which they are officers. DISTIHCTIOL: between intent and motive. Where deft intended to kill, and wounded and maimed, and was indicted for wounding and maiming, and pleaded that his intent was to kill, ulterior intent was to killd, and primary and immediate intent was to maim, 2 Stephens His. of Crim. Law of Eng., Ill, 112, Warning against two common fallacies, viz., the confusion between motive and irtention, and the tendency to deny an immediate intention because of the existence, real or supposed, of some ulterior intention, e.g., wish to escape is the motive, stabbing policeman is the intention. 1. Austin on Jurisprudence, 2, 355, 34, 165. section IV-BBft's Intbnt That Plff Should Act on Representation, roster V. C harges, p. 491, 7 Binfeham, 105, 1830. * * * It is fraud in law if a party makes representations he knows to be false, and injury ensues, though his motives may not have been bad. When jury said he had no fraudulent intent, they meant he had not the motive of selfieh gain to himself. Absence of that sort of selfish motive does not prevent action being maintainable. It is sufficient that deft made the representation that some oifie of the public should act upon it. If he did not suppose that any of the public would act on it, but ought to have so supposed as an average reasonable man, he would probably be liable. The representation must be made with the intention that plff or the class to which plff belongs would act on i+ . This is another statement of the same rule. Deft is also liable of course, as before said, if an average reasonable man would have forseen that the statement would be acted upon. This latter test it probably the true one, although according to Peek v. Derry, the test is not the average reasonable man in deciding whether deft honestly believed the statement, but whether deft honestly believed it himself. -60- g.^JMJLl_v- Walter. p. 495, 3 Barnewell & Adolphus, 114, 1832. • * • Rule absolute. Deft had not wrong motive. But he nade a false representation intending purchaser to rely on it. 1 Bish. Grim. L. 7 rd. s. 341 ; 2 Bish. 598 ; 6 L.Q.R. 74. In order to prove the intent necessary to maintain an action for deceit, it is not necessary that there he any motive of personal gain to deft, or to any one else. It is only necessary that deft intended plff , or the class to which plff "belonged, to rely upon his statement, or that he ought to have foreseen, as a reasona"ble man that plff would rely on it. Langridg e v. Levy , p. 494, 2 Meeson & Welshy, 519, 1837. * * • Case seems to lay down that one who sells an article with a knowinglj'- false representation as to its fitness for use by a purchaser, is liable for injuries resulting from such use. Here the motive was to effect a sale ; the intent was that the plff and those for whom he said he bought the gun, should act on the faith of the deft's representations. They did so act, one of them to his damage. Decision somewhat like George v. Skivington, ante ; court decided on the ground that the father had named the son as a user at the time of the purchase. Court HELD, that if the person injured is named at the time of the purchase, deft is liable to him, Bedford v. Bagah aw, p. 501, 4 Hurlstone ^^/^ Eorman, 538, 1859. * * • In this case all persons buying shares on the stock exchange must be considered as persons to whom it was contemplated that the representation would be made, Plff was one of the persons whom the deft ought to have contemplated as liable to act on the representation. Ordinarily speaking, there cannot be a duty towards all the world, but there can be a duty towards a very large class. Representation was made to the class of persons to which plff belonged- -persons who knew the rules of the stock exch- ange. Pollock on Fraud in British India, 58. ' i App. of Pollock on Torts, fi ed. 555, The doctrine of this case is limited very much by Peek v. Gurne,, and Hunnewell v. Duxbury, but Professor Smith thinks the general ststement of the rule ir the principal case is correct and disagrees with those two cases. It is well settled that plff can recover if he relied mainly on the representation, and in this country he can recover if the representation was one among several other thingp on which he relied. The only dispute anywhere is as to how far reliance must have been put on the representation, and how far on other things. This general subject is taken up ir sec. 5 of Smith's Cases, page 511, Peek V. Gurne^, page 504, House of Lords, 1873, • ♦ "Lord Cairn6« statement at the bottom of page 505, that the prospectus had done its work is very doubtful. It is a question of fact whether it had or not. The case is critic ieed in Innes on T., 54, 55 note. It has been held that the effect of a prospectus -61- st ill survives in such a case. Andrews v. M. , 73 Law Times, n.s, 726. Plff should have asked to have the jury find specially whether the prospectus was part of the general fraud which caused plff to take the shares, whether the deft should not have contem- plated that more than the original alottees would act on the prospectus. It will usually be found that the latter is the case. If the jury found that plff was one of the class whom the defts ought to have contemplated, as likely to rely on the prospectus, the case ought to "be decided the other way, Kunn e well y . Duxbu ry, page 508, Mass., 1891. Minority of court probably thought that jury should have been asked whether plff was one fif a class likely to be injured bj*- the false certificate. Kent, Conira. , Holmes ed, , Pol. on t., 1st ed. page 140, 51 N. K. 287. Deft need not intend that plff should rely on his false representation ; sufficient if he ought to have known that plff would rely on it ; doubtful whether defts should not have contemplated that plff might rely on this. Kere the majority of the court apparently held that the certificate was not filed with intent to induce people to act on the faith of it. The court thought the object of filing the certificate being different here from Bedford v. Bags haw made a difference. Probably the object was to satisfy the statute, but the question of deft's liability tmins rather on whether deft ought not to have contemplat- ed that the class to which plff belonged might rely on it. SECTION V. rs'OirfflD. SECTION VI. WHETHER PLFF IS BARRED BY FAILING TO USE THE MEANS AT HIS COMMAND TO DETECT THE FALSEHOOD. Cottril v .__Krum, page 527, Missouri, 1890. • * * Plff owed no dutj' to deft to take care, so there is not fault on both sides. Contra, 162 Mass. 260 ; 8 Harv. L. Rev. 365. Ordinarily it is no defence to action of deceit for deft to sat that plff could have found out he was lying by making further inquiries. Contributory negligence is no defence to an action for intentional injury. Plff 's failure to make inquiries should be no defence. He owed deft no duty to look up his statements to find out the truth. Deft's act v/as intentional, was intended to be acted on, and when acted on, it was no defence that the result which he feac± intended could have been prevented by foresight. -62- MaH7 cases, however, have teen decided on the ground that plff was foolish to helieve the statement, hut in many of them the nature of the representation was such that vendees generally did not act on such representations. Professor Smith says representations as to values, previous prices of law,, ought to be actionable, but point is in dispute. It ought to be, especially where one stands on a better footing than the dther, so too, as to representations concerning quality. wmm'^'^' ^.K f'j-k ■' '^'■: V.V? l^i■'' ^m .. J\ m .--.. -5?v^ '<# 1^ k,^' / '^ ^-^^ «;• i» TN^ r ■%: n ^a « « i- "V