Cornell University Library The original of tiiis 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/cu31924019316771 KF1284.S647896""'""''-"'™'y IIIWIlKliiimX'''* '** "' negligence. 3 1924 019 316 771 QlnrnpU ICam ^rljnol Sibrara A. TREATISE LAW OF NEGLIGENCE BY HORACE SMITH, B. A. KI.ABOBATED WITH NOTES AITD BEVERISIIICSS TO AUXBICiJt CASES. Br W. H. WHITTAKEE, Of the dndTmati Ba/r^ SECOND AMEBIC AN— FMOM SECOND ENGLISH EDITION. SE- EDITED, AND E1II.ABOED WITH THE CITATION OE ALL THE AMXBIOAN CASES BBOUGHT DOWN TO DATE. By JAMES AVEKY WEBB, Editor of the last editions of Pollock on Torts and Bwrrill on Assignment. ST. LOUIS: THE F. H. THOMAS LAW BOOK CO, 1896. Entered according to Act of Oongresa In the year 1896, by THE F. H. THOMAS LAW BOOK CO., In the Office of the Librarian of Congress, at Washington. St, Louie, Mo. : Press of Nixon- Jones Pnnting Co., 215 Fine Street. TO HONORABLE AMOS M. THAYEE, UNITED STATES CIRCUIT JUDGE OP THE EIGHTH JUDICIAL CIECUIT, Whose high opinion of the original text of this book became the incentive for its first republication, this new and enlarged edition is cordially inscribed by THE PUBLISHERS. (iii) PREFACE TO THE FIRST EDITION. The " Law of Negligence " has not, I think, received that amount^ of attention from English text "Writers which its importance would seem to demand. The division of negligence into three classes: Neglect of duties requiring (1) ordinary, (2) more than ordinary, and (3) less than ordinary care appeared, upon the whole, to be a reasonable plan. This division is, no doubt, some- what arbitrary ; but it has the advantage of proceeding in some measure super antiquas vias, and it adapts itself to the increasing complexity of modern obligations. It cannot be doubted that in the progress of civilization a constantly increasing amount of care is required of men in proportion to the increased skill and intelligence which they are found to possess, to the increased difficulties of the duties which they undertake to pei-form, and to the keener sense of responsibility toward others which is characteristic of a more refined age. Thus it will be found, I think, that there is a tendency, both in the recent judgments of the judges and in the enactments of the Legislature, to widen the responsibilities of men in theit conduct toward others. Upon the whole, then, I have thought such a division of my work to be desirable as giving a clearer view of what care the law requires in the performance of duties generally. These divisions I have subdivided into diflFerent sections, each section dealing with a particular class of circum- stances: as, for instance, f Duties of Owners of Property," " of Owners of Animals," " of Controllers of Highways," " of Physicians," " of Solicitors," etc., etc. ; for I cannot VI PREFACE TO THE FIRST EDITION. doubt that for convenience of reference such subdivisions are extremely useful, and I have aimed, as far as possible, at rendering my work a practical treatise upon the law for the use of the profession. With regard to the manner in which the crises from the various reports have been dealt with, I have found it impossible within the proposed limits of this volume to discuss the judgments at any great length. I have endeav- ored to state what I believe to be the result of a number of cases in the text, and in the note have given the names of the cases; generally indicating, in a few words in a bracket, what the principal fact was, so as to assist the memory of the reader and to enable the practitioner to find those cases which are most similar to the one which he has in hand; and sometimes I have offered some suggestion towards a just appreciation of the decision. The subject of negligence with respect to the management of ships has, I feel, been inadequately treated. Questions of negligence, causing the loss of goods or of the vessels themselves, are invariably complicated by the special con- tracts entered into, such as bills of lading, charter-^parties, or insurances, regulations of navigation, the laws and cus- toms of Maritime Courts, and other matters. The cases are numerous and intricate, and I have felt that my book would be overbalanced by a full discussion of the Law of Negligence as applied to shipping ; but that some account of the subject ought to be given in order to render the work as complete as possible. I am indebted to Mr. As- pinall, of the Common Law Bar, for having kindly looked over this section, and given me, the benefit of some sug- gestions, although I alone am responsible for any errors which may appear. I have availed myself of the learning and philosophic reasoning of Wharton, the lucid exposition of Shearman and Bedfield, and the suggestive ingenuity of Campbell. PREFACE TO THE PIKST EDITION. yii I cannot hope that I have succeeded in combining all their merits, and I am sensible that my work may have serious defects of its own ; but after the care and labor I have bestowed I cannot help believing that I have produced a useful book. Horace Smith. 4, Paper Buildings, Temple. May, 1880. PBEFACE TO THE SECOND EDITION. The kind manner in which the First Edition of this Book was rec^ved by the Profession, and the very favorable criticisms of the Press, have induced the Author to believe not merely that a Second Edition will be acceptable, but that the Work will establish itself as a thoroughly recog- nized text-book upon the subject of which it treats. That subject is one of great interest and of wide Bcope. Every member of the community has duties to perform towards other members, and those others have duties to perform towards him. Many of these duties are such as the law will enforce ; some of them are of absolute obligation to ilo or to refrain from doing some particular act; but a great many of them only impose an obligation to take care in the doing or in the omission of acts, and this obligation to take care is one which is constantly arising in the daily life of almost every man. Moreover, the questions which arise in actions of negligence are often extremely subtle, involving questions of morals, and "those considerations which ordinarily regulate the conduct of human affairs." The law, also, is in an unsettled, and even in a progressive state. These considerations will, I think, show that the " Law of Negligence" is an interesting and important topic, and, as I observed in the Preface to the First Edition, is one which has not sufficiently attracted the attention of text-writers in England. The division and arrangement of the subject has received general approval, and the device of citing cases by adding to the name of the case a few words (in brackets ) indicating (ix) X. PREFAiDE TO THE SECOND EDITION. the special circumstances, in order to assist the memory, has met with the " sincerest flattery." The text has been generally enlarged and amended throughout, and many fresh cases have been inserted. New sections have been added upon *' The Employers' Liability Act," " The Neglect of Duties by Trustees," "by Directors of Companies," and "by Stockbrokers;" The judgment of Brett, M. R., in the case of Heaven v. Pender, has, in consequence of its great importance, been set out at full length in an Appendix at the end of the ' Book; and a vigorous criticism upon the case of Ciayards V. Dethick, by Lord Bramwell, has, with his Lordship's kind permission, been printed in another Appendix. The Author has to express his thanks to Mr. Aspinall for his renewed assistance in the section upon " Ships," and to his friend Mr. PercevalKeep, of the Midland Circuit, for much valuable help throughout the preparation of this Edition. Horace Smith. 4, Paper BtriLDmGS, May, 1884. PREFACE TO THE AMERICAN EDITION. The approval which this work has received in Englaud led the publishers to believe that an Aiderican edition would be usefal to the practitioner. The author has succeeded in bringing within the scope of a single volume, a treatise of the law of negligence at once concise and comprehensive. The method of treatment of the subject is somewhat dif- ferent from that adopted by later American writers. The division of the law of negligence into classes is not, how- ever, without an analogy in American law, and though the tendency of our courts has been toward rejecting the dis- tinction as to degrees of negligence, it cannot be said that such distinction no longer exists. The work of the editor appears below the text of the author, and occasionally in his foot-notes, where it is included in brackets. Some three thousand cases have been added to this edition. W. H. W. CiNciinrATi, O., July 15, 1886. (xi) PREFACE TO THE SECOND AMERICAN EDITION. The work of the editor preparing the second American edition of this well-known legal classic consisted of revising the editor's notes to the first American edition, and the index. In doing this many of the notes have been re- written so as to state the present law ; aboat one hundred and twenty-five pages of new matter has been added and more than five thousand new cases used. The American law is stated in the notes below the text, which remains intact, except in a few instances in which it was deemed advisable to insert the American cases in the author's foot- notes, where they are included in brackets. It has been the aim of the editor to leave untouched a text which students will find to be the clearest exposition of .the principles of the law of Negligence and to apply those principles with important American cases. At the same time it is believed that the large quantity of material which has been brought within the limits of one volume, the orderly arrangement of the notes and the large number of cases, either cited or digested, will be of some value to practitioners. J. A. W. Mbmphis, Tknn., Febmaiy, 1896. (xiii) PUBLISHEBS' ANNOUNCEMENT. To THE PbOPESSION : Ten years ago we published the former Edition of this book. The great number of Cases on Negligence which have been decided during that interval, have been carefully collated and interwoven with the notes of the former E^dition, whereby the body of the book has been increased from 481 pages in the former to 604 pages in this edition. We have incorporated in the present work, a new and somewhat novel feature which we hope will invite favorable comment. In the Table op Citatiohs, we have given in their proper alphabetical order and distinctively displayed in capital letters, the text-books quoted both by the Author and Editors. This will frequently serve as a guide to those text-books upon questions wherein the principle involved is more fully discussed in some special treatise than the space of a general work on the law of Negligence will permit us to amplify. THE PUBLISHEES. (XV) TABLE OF CONTENTS. CHAPTER I. , DEFDlITIOSr AKD DIVISION OF SdBJECT. CHAPTER n. Neglect of Duties Requirikg Ordinart Cabe. CHAPTER III. Neglect of Duties Requiring Skill or more than Ordinary Care. CHAPTER IV. Neglect of Duties Requiring less t^an Ordinary Cake. CHAPTER V. Contributory Negligence. CHAPTER VL Presumptions op Negligence. CHAPTER Vn. Actions foe Injubies Causing Death (Lord Campbell's Act). CHAPTER VIII. Damages. (xvii) XVIU TABLE OF CONTENTS. CHAPTEK I. Definition" and Division of Subject . Duties may arise of contracts Or may be imposed by law Privity of Contract .... Liability to third perspn for selling dangerous goods ..... Distinction as to liability in case of breach of con^ tract and breach of duty Division of duties by Boman Law Degrees of negligence Proximate and remote cause Law and fact .... FAOE 1 10 10 11 11 10-18 21 22-25 26-45 49-55 CHAPTER II. Neglect of DuTites Rbquieing Okdinakt Cake. Section I. — Neglect of Duties ■ Requiring Ordinary Care by Persons in General. Different amount of care under different circum- stances Duties performed for benefit of both Employment of services for rewg,rd ' Master and servant Skilled labor Manufacturers and vendors of goods Persons on premises Host and guest The rule of the road Injuries on the highway 4 56 67 57 57 . ' ,-« 57 >', 58 62 62 63 63 Section II. — Neglect of Duties by Owners and Occu- piers of Property. Negligence presupposes equal rights . 1, 3, 4, 65, 70 Rights of lateral and subjacent support . 5, 6, 66, 70 TABLE OP CONTENTS. XIX and (Ed. n.) (Ed. (Ed. n.) n.) Coming upon premises by invitation Owner owes no obligations to trespassers licensees .... Setting spring gans upon premises Excavations on or near the highway Use of fire upon land Sailway fires Statutes in relation to Bringing water upon land Surf&ce water Diversion of water . Pollution of water . Landlord and tenant Landlord liable for a nuisance Liability of landlord and tenant third person Liability of landlord to tenant Obligations of owners of cattle with respect to fencing Statutory duty of railway companies to fence SuflSciency of fence Duty to keep in repair Proximate cause Contributory negligence Evidence Damages for injuries to (Ed. n.) (Ed. n.) (Ed. n.) (Ed, n.) (Ed. n.) (Ed. n.) (Ed. n.) Section III. — Neglect of Duties hy Oumers of Ani- Liability of persons having control Savage animals Mischievous animals, scienter Contributory negligence . Infectious animals Keeping of dogs . Proof of scienter , Injuries by dogs to sheep, bility Separate but not joint liability of owners (Ed. n.) 123, (Ed. n.) 124, (Ed. n.) (Ed. n.) 126, statutory lia- (Ed. n.) PAGE 71, 72 74-78 79 80 81-85 86-92 86 92-101 92-96 97 97, 98 100 101 102 106 107-110 110-115 115 117 118 119 121 122, 123 123-133 123 124, 125 125, 126 128 130 131 131, 132 132 133 XX TABLE OF CONTEXTS Section IV". — Neglect of 'Duties by Owners or Control- lers of Highways . . . 133-148 No action at cominoa law lor non-repair of high- way ...... 133, 134 Statutory duty to repair highway . (Ed. n.) 134,135 Obstructions in highway . . (Ed. n.) 137, 138 Lawful interference, negligence in v . . 139-141 Duty of owner of land adjoining . . . 141 Corporations under statutory pow;ers . ' . 141 Liability for injuries caused by excavations in . (Ed. n.) 141 Bridges — duty to keep in repair . (Ed. n.) 143, 144 Canals must be properly constructed and kept under control ..... 145, 147 Section V. — Neglect of Duties by Corporation^ {not Performing Statutory Duties') . . 148-153 Discretionary duties .... 148 Omission of municipal corporations to exercise discretionary powers .... 149 Acts ultra vires . . . . . 150 Private corporations cannot set up plea of, in action for tort . . . (Ed. n.) 160,151 Section VL — Neglect of Duties by Masters . . 153,154 Kelation of master and servant must exist . 153 Sub-section L — Breach of Duty to Servants , . 154-198 Master bound to take reasonable care in selection of servants ..... 154, 155 And to furnish them with adequate materials . 154,155 To see that a sufficient number are employed, (Ed. n.) 156, 169 Does not warrant competency of servants (Ed. n.) 157, 159 Disobeying orders .... 158, 159 Does not guarantee servants against all risks, (Ed. n.) 160, 161 Must inform them of extraordinary risks . . 161 Servant assumes risk of employment . . 163-165 TABLE OF CONTENTS. XXI PAGE Informing master of defects . . . 170 Promise to repair ..... 172 Master not liable for negligence of fellow-servant in course of common employment . . 178, 179 Who are fellow-servants . . (Ed. n. ) 179 Who are not fellow-servants . (Ed. n.) 186 Test whether one is fellow-servant or vice-prin- cipal .... (Ed. n.) 190-197 Persons engaged in a common employment (Ed. n. ) 197, 198 SuB-SECTiON n. — Breach of Duty to Others . . 199-225 Master liable for his own negligence . . 199 And the negligence of his servant (Ed. n.) 199-200 When acting in the scope of his employment . 200 Servant acting within the scope of his employment 200-203 Servant not acting within the scope of his employ- ment ...... 208 Wanton acts of servant . . (Ed. n.) 204-209 Assaults by railroad employe upon passengers, (Ed. n.) 206, 207 Assaults by servants of charitable corporations, (Ed. n.) 208 Master liable for negligence of under servant . 211 Independent contractor . . . . 213 Owner interfering with work . (Ed. n.) 215,216 When the work is a nuisance . . . 219 When the owner has a duty to perform . . 220 Liability of municipal corporations (Ed. n.) 218 Contractor and subcontractor . (Ed. n.) 221,222 Owner of real property liable foi; negligence of "contractors" ..... 224 Sdb-section III. — The Employer's LiahUUy Act 1880. 225-251 The old law 226 Contracting out of the Act 226 Effect of the act . . 226, 227 Who are workmen . . 227-229 " Defects "... 228, 229, 230 "Superintendence" 232 xxu TABLE OP CONTENTS. " Manual labor " . Not giving notice of defects Eules Contributory negligence . Notice of 'injury . Statutes affecting employer and employe (Ed. n.) Section VII. — Neglect of Duties hy Servants . How far liable to third parties One servant suing fellow-servant . Servant hiring laborers Section VIII. — Neglect of Duties by Public Officers Sheriff's duty toward owner of goods seized Section IX. — Neglect of Duties by Trustees Definition of trust Jurisdiction of court of chancery Ordinary care Principal duties of trustees " . Reducing property into possession Safe custody of property Investment of property . . (Ed. n.) Distribution of property .... PAGE 2.32 235 233 235 237-250 243-251 251-253 252 252 253 253 253 254-265 254 254 264 257 257 257 261-263 265 CHAPTER III. Neglect of Duties Requiring JMoke Than Ordinary Care ...... 266 Section I. — Gratuitous Loan (^commodatam') in the Case of Bailee . . . 266 Things done for person's own advantage . . 267 Persons taking money for admission at public places . , . . . . 267 Persons who undertake to show skill . . 268 Volunteer ...... 268 Corporations ..... 270 Dangerous things ..... 270 TABLE OF CONTENTS. xxin PAGE Dangerous conduct .... 270, 271 Statutory duties . . . . . 272 Carriers ...... 272 Section II. — Neglect of Duties by Oumers and Occu- piers of Real Property . . 274-281 Owner using property for his own advantage . 274 In an ordinary manner . . . 274 In an extraordinary manner . . 275 Railway crossings .... 276 Owner inviting person on premises . . .277 For his own benefit . . . 277 For the benefit of the other . . . 278 Whether an invitation in fact. (Ed. n.) 279,280 Section III. — Ifeglect of Duties by Oicners of Danger- ous Animals .... 282-285 " Dangerous " animals .... 282,283 Scienter ...... 283-285 Section IV. — Neglect of Duties by Owners of Danger- ous Goods .... 285-289 Use of Gun ..... 285, 286 Fireworks ...... 286 Poisonous drugs ..... 287 Explosive materials .... 287 Materials otherwise dangerous . . . 287, 288 Section V. — Neglect of Duties by Oas Companies . 289-291 Neglecting to repair pipes .... 290 Bound to keep in repair .... 290 Section VI. — Neglect of Statutory Duties by Corpo- rations ..... 291-323 Reason for requiring more than ordinary care . 291, 292 Imperative duties ..... 292, 293 Penalty no bar to action .... 293 Discretionary duties .... 294 Duty not only to make works but to take care . 294 Interpretation of statutes .... 295-298 XXIV TABLE OF CONTENTS. PAGIE Corporations taking toll . . . 299 Liable though deriving no benefit . . . 299 Knowledge of defects .... 300 Can not shift responsibility . . . 300 Only liable for acts of servants or persons under control ..... 300 Liability for acts of contractor . . . 300, 309 Not liable for error of judgment . . . 301 Recovery against contractor . . . 314, 315 Party bringing action must show interest . 323 Injury must be within particular mischief . . 323 Liability of municipal corporations with respect to highways . . . (Ed. n ) 301 Change of grade . . . (Ed. n.) 301 Sewers and drains . . . (Ed. n.) 304 Awnings, signs, etc. . . (Ed.n.) 305 Blasting in streets . . . (Ed.n.) 305 Coasting in streets . . . (Ed. n. ) 306 Sidewalks .... (Ed.n.) 306 Contributory negligence .... Section VII. — Neglect of Duties by Directors of Public Companies ..... 323-333 Liability of Directors .... 323-325 More than ordinary care .... 325 Bill in equity ..... 326 Suit by liquidator ..... 327 Liability of sleeping directors . . . 328, 332 Action by sha,reholders .... 332 Action against promoters . . . . 333 Section VIII. — Carriers — Railway Companies Insurers, act of God Goods of peculiar character Not insurer after arrival of goods . Railway companies common carriers Carriers' Act Tender of reasonable sum . . 333-410 333 333, 334, 333 . 334, 340 334 . 334, 335 336 Limitation of liability bv express contract (Ed. n.) 342, 344 TABLE OF CONTENTS. XXV Just and reasonable conditions Unreasonable conditions . ■ Transportation of live stock Railway and Canal TraflSc Act Measure of damages Forwarding goods beyond line Passengers' baggage Warehouseman of baggage Conditions, knowledge of depositor Carriers of passengers Use of premises Faulty construction Injury by something extraneous Bailway premises . Use of trains and carriages Sleeping car companies Section IX. — Neglect' of Duties hy Innkeepers PAGE (Ed. n.) 343 347 (Ed. n.) 348 (Ed. n.) 349 351 349 . (Ed. n.) 353, 356, 358 (Ed. n.) 358, 359 (Ed. n.) 360, 363 363 r . 365 (Ed. n.) 367, 373 , , 388 . (Ed. n.) 389, 391, 395 , . 391 (Ed.i a.) 393 , , 396 (Ed. 1 »•) 401, 411 410-419 Not an insurer IjObs prima facie evidence Loss by burglary . Loss by Are Contributory negligence Limitation of liability by statute •S . 410-419 (Ed.n.) 410,411 412 (Ed.n.) 412,414 (Ed. n.) 412, 414 (Ed.n.) 414 (Ed.n.) 415,419 Section X. — Neglect of Duties hy Physicians Surgeons Skill required Acting gratuitously Surgeons not actual insurers Unqualified person Criminal liability . Contributory negligence and . 419-427 (Ed. n.) 420, 422, 424 420 421 (Ed.n.) 421,422 (Ed.n.) 423,424 (Ed.n.) 426 Section XI. — Neglect of Duties hy Attorneys . . 427-440 Skill required ..... 427 Liable for negligence of agent, partner, and clerk .... (Ed. n.) 429, 431, 433 Instances of negligence . . (Ed. n.) 4^9 XXVI TABLE OF CONTENTS. Money collected Power to receive money Action for fees PAGE (Ed.n.) 432 (Ed.n.) 433 (Ed.n.) 432,434 Section XII. — Neglect of Duties by Bankers^. Things intrusted to them for safe custody Duties as bankers ..... Skill required ..... Liability for paying forged checks . (Ed. n ) Liability for negligence of correspondent bank, (Ed. n.) For negligence of notary . . (Ed. n.) Section XIII. — Neglect of Duties by Stockbrokers Section XIV. — Neglect of Duties by Public Officers Ministerial Duties . . . (Ed.n.) Discretionary or judicial duties Skill required In selecting subordinates . Duties of general public nature Qwasi-public nature Delegated authority OfBcers of courts of justice, 440-444 440 440, 441 440, 441 441, 442 443 443 444 443-455 445, 449 445, 449 445, 446 446 446 446, 447 notaries, sheriffs, (Ed. n.)447, 448, 450 (Ed.n.) Judges .... (Ed. n.] 451 Notaries Public (Ed. n.> 451 Sheriffs .... (Ed. n.) 453 CHAPTER IV. a Neglect of Duties Requiking Less than Ordinabi Caee ..... 456 Gratuitous Depositaries, 456 Gratuitous loan in case of the bailor 457 Gratuitous- dedication of highway . 457 Gratuitous services 457, 458 Volunteer .... 457 Licensee .... 457 Trespasser .... 457 TABLE OF CONTENTS. XXVU CHAPTER V. PAGE CONTRIBDTOEY NEGLIGENCE . . (Ed.n.) 459, 460 Definition ...... 459 Proximate cause ..... 459 Comparative negligence . . (Ed. n. ) 463 Plaintiff need not anticipate defendant's negligence 478 Burden of proof ..... 470 Plaintiff voluntarily incurring danger . . 478, 479 Escaping danger . . . (Ed.n.) 485 Master agd servant . . (Ed.n.) 493 Imputed negligence . . (Ed. n.) 495, 507, 514 Children .... (Ed.n.) 514 Trespassers . . . (Ed.n.) 518 CHAPTER VI. Tkesomption of Care or Negligence (Res Ipsa Loqui- tur) ....... 522 Happening of accident . . (Ed.n.) 522,524 Cases resting in contract and those not resting in contract .... (Ed.n.) 526 CHAPTER VII. Action fob Injuries Causing Death . Damages ...... Statutes . . . (Ed. n.)e«seg. 535 535 537 CHAPTER VIII. Damages Breach of contract Telegraph company Personal injuries . 687 591 591-595 595 THE LAW OF NEGLIGENCE. CHAPTBE I. DEFINITION AND DIVISION OF SUBJECT. Negligence (1) in law is a breach of duty (2) uninten- tional (3) and proximately (4) producing injury (5) to another possessing equal rights (6). It will be convenient at once to explain the terms of the above definition in the order in which they stand in the sentence. (1) The term " negligence " perhaps more accurately describes a state of mind, or an absence of prudence and forethought; but the law does not deal with a man's state of mind, but with the acts which flow from it, and we are only proposing to treat of that which is negligence in law. Negligence, OeSned. — The term " Negligence " has been defined by varions authorities. Ulustrationa: "Failure to do what a reasonable and pmdent person wonld ordinarily have done under the circnmstances of the situation, or doing what such a person would not have done."— > Anderson's Die. of Law, p. 703. " The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It must be determined in aU cases by reference to the situation and knowledge of the parties and all the attendant circum- stances. — Black's Law Die. 807. " The failure to observe for the protection of the interests of another person, that degree of care, precaution and vigilance which the circum- stances justly demand, whereby such other person suffers injury." — Cooley on Torts (2d ed.), p. 752; Brown v. Congress, etc., St. B. Co., 49 Mich. 153. " Negligence is the failure to do what a reasonable and prudent per- 1 2 DEFINITION AND DIVISION OF SUBJECT. [2] (2) Legal duties, and breaches of which the law takes cognizance, are here spoken of. The law considers injurious acts to be in general " culpable " which are such as a reasonably careful man would foresee might be productive of injury, and which he would abstain from doing (a). The modes in which duties may arise, and what amount of care is required in the performance of them, will be consid- ered subsequently at greater length, but at present it is only necessary to state that a duty must be shown to (a) Bljth V. Birmingham Waterworks W. Bep. 453 ; Atwater v. Town of Vet- Go., 11 Excb. 781. [Kay v. Fennsylya- eran, 6 N. Y. S. Bep. 907; City of Anstin nia E. Co. 65 Pa. St. 269; E. E. Co. v. v. Bitz, 72 Tex. 391; 9 S. W. Bep. 884; Jones, 95 U. S. 441 ; Hankins v, Wat- Kentncky Cent. E. Co. v. Gastinean, 88 kins, 77 Hnn, 360; 28 N. T. S. Bep. 867; Ky. 119.] Alexander v, Hnmber, 86 Ky. 665; 6 S. son would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done." — K. K. Co. v. Jones, 95 U. S. 441, Swayne, J. " Negligence has been briefly defined to be the absence of care accord- ing to circumstances." — Vaughn ». TafE Vale E. Co., 5 Hurl. & N. 679; Philadelphia, etc., B. Co. ». Stinger, 78 Fa. St. 225. " The opposite of care and prudence — the omission to use the means reasonably necessary to avoid injury to others." — Great Western E. Co. V. Haworth, 39 111. 353. " A failure of duty generally unintentional, but sometimes inten- tional." — Thompson on Neg., Preface. "Negligence consists in the doing of something, or the omitting to do something which a person of ordinary prudence and care would not have done, or would not have omitted to do, under like or similar cir- cumstances. — Galloway v. Chicago, etc., Ey. Co., 87 la. 458; 64 N. W. Eep. 447. " Negligence;" is " that lack of care which an ordinarily prudent man would exercise In the management of his own affairs." Texas & P. Ey. Co. V. Gorman, 2 Tex. Civ. App. 144; 21 S. W. Eep. 158. " Negligence is that omission to do something which a reasonable man, guided, upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." — Webb's Pollock on Torts, p. 537. See Editor's notes where numerous cases are collated. See, also, Harri- man».Pittsburg,etc.,E. Co.,45 0hioSt, 11; 12 N. C. Eep. 453 ; Holmesv. Atkison, etc., E. Co., 48 Mo. App. 79; McDonald v. International & G, N. Ey. Co., 86 Tex. 1 ; 22 S. W. Eep. 939. DEFINITION AND DIVISION OF SUBJECT, 3 have been broken. The plaintiff must show what the duty was, and how it was broken. It is not sufficient that a careless act has been done by the defendant by which the plaintiff has sustained loss (6). The liability for an omission to do something depends entirely on the extent to which a duty is im|5osed to cause that thing to be done (c). It can- not be predicated of any particular act that it is per se negli- gent ; it is only so because it is a breach of duty, so that an act doi^p by one man may be negligent which, done by another, would not be so, because he had no duty with respect to it. Sometimes the duty may have arisen out of a contract between the parties ; but it is not necessary that it should have so arisen. It may arise out of the rela- tive situation of the parties, or be imposed by statute, as we shall shortly see (d). [3] (3) If the act be intentional (e) it becomes fraudulent or criminal, or it may be a trespass, and it is not proposed to deal with such questions ia the present treatise (f). (4) I shall defer for the present the consideration at length of the word " proximately " (g), as the subject is one of considerable difficulty, and the cases which illustrate it are numerous. It is sufficient here to explain the mean- ing of the word in the definition by saying that in order to (6) See Daniel v. Met. By. Oo., I>. B. 5 49 L. J. C. A. 713; — [Satton v. Bonnett, B. & I. App. IS; 40 L. J. O. P. 121; per 114 Ind'. 243; 16 N. B. Eep. 180.] WlUes, J., in Gantret v. Bgeiton, Ii. B. 2 (c) Per Blackburn, J., Mersey Docks C. P. 874; 36 L. J. O. P. 191 ; per Byles, J., v. Gibbs, L. E. 1 H. L., p. 115; 35 L. J. Ex. In OolllB V. Selden, L. B. 3 C. P. 498; 37 225;— [Oleson i). City of Plattsmonth, 35 L. J. O. P. 233; Bolman v. Farnees By. Neb. 163; 52 N. W. Bep. 848]. Co.,32L. T.N. S. 430. 6. & Co. being in- (d) Oonett».L;&N. W. By. Oo.,16Q. debted to the plaintiffs gave a cheqne to B. 984. [Eabl v. Love, 35 N. J. L. 5.] their order; and the plaintiffs, with the (e) "Intentional negligence," a phrase greatest possible negligence, let a thief sometimes used, seems to InTolve a con- have an opportimlty of forging their tradiction In terms. So also the words order. The thief got an innocent person "willful negligence" are often used, to cash the cheque, who passed It to the where, tf by " willful " is meant " inten- detendant. The plaintiffs sued the de- tional," the same objection applies; but fendantforthecheque, and the defend- If by "willful" only recklessness is ant pleaded negligence in the plaintiffs, meant the phrase " willful negligence " The plea was held demurrable, as the seems unobjectionable. plaintiffs had no duty towards the de- (/)See Wharton on Negligence,!. 132, fendant to take care of the cheque. (g) Seepo«(. Patent Safety Gun Cotton Co. v. Wilson, 4 DEFINITION AND DIVISION OP SUBJECT. make a person liable for a culpable breach of duty produc- ing injury to another, it must be shown that the damage was the ordinary and probable consequence of such breach, or, in other words, that the negligent act was the " proxi- mate " cause of the damage. (5) In the word "injury" I include " damage." Mr. Broom, in his Commentaries, 5th ed., p. 368, says that bare negligence unproductive of damages gives no right of action. An *' injury" must be produced by the negligent act — that is to say, there must be something more than mere damage done, something injurious to the rights of another, and this is involved in the " breach of duty," for the breach of a legal duty is the invasion of the corresponding right. (6) The next few words of the definition require some attention, and I am not aware that the proposition con- tained in them can be supported by any distinct authority, but it appears to me to be correct. In Deane v. Clayton, 7 Taunt. 489, Burrough, J., at p. 499, says — " I conceive that every person is protected by this rule (««c wtere iuo ) who has a right equal to that of him who does the act, and who is injured, without his default, in the exercise of that right." In the last edition of " Addison on Torts," by Mr. Cave, Q. C. (now Mr. Justice Cave) (pp. 17, 18, 19, 20), [4] it is said that the person injured must be in the exercise of an available right. Now, if the law regarded the right as inferior, it could not avail, and if it regarded the right as superior, no negligence need be alleged. The plaintiff's right must be of that sort which he is able to oppose to the right which is being exercised by the defendant, and make available against him by saying — «' It is true you are law- fully exercising your right, but I am in the exercise of a right which I am able to oppose to yours, and you must tihere- fore exercise care towards me" (A). The proposition is (ft) See aXeoper Byles. J., InOoUisv. rlghtsis that of the right to a party wall Selden, supra. A cleai inBtance of equal and the whole question as to the naei of LATEKAL AND SUBJAGENT SUPPORT. 5 that the question of negligence only arises where the rights of the parties are equal, or, in other words, where the rights are unequal the question of negligence does not arise. If a man has no right to do an act, or his right to do such act is subordinated to the right of another (which is the same thing, for then relatively he has no right), he is liable to an actioa for injury caused by the commission of the act, whether carelessly done or not (i) ; but such action would be in the nature of " trespass," and not of •'negligence." But where the rights are equal, and one party in the very exercise of his undisputed right acts care- lessly, and so injures the rights of another, the action of negligence arises. The question, when are the rights equal, and when subordinated, can only be answered by saying, when the law thinks it expedient that it should be so. Thus, in the case of two persons driving along a highway, the rights are equal ; and, if one or the other neglects his duty and so injures the other's right, an action of negligence arises. *« It is clear," said Lord Coleridge, in a recent case, " that where both parties are upon the highway, where each of them has a~ right to be, and one of them is injured by the trespass {quoere, «* act") of an animal be- [5] longing to the other, he must in order to maintain his action, show that the trespass (quo^e, " act") was owing to the negligence of the other " {j). On the other hand, if a man digs a hole in my land, or if, in digging a hole near the boundary, he lets down my lands, it is a tori; and further, if an adjoining owner digs a hole near to my ancient house, the law subordinates his right to dig the hole to my right to. possess my house in safety, and the action is a sim- ple action of tort, and requires no allegation of negligence It by either party Is one of the exercise 126; Keedham v. IiOalsvllle & N. B. Co., of reasonable care, see Hnghes v. Per- 85E7.423;3S. W. Bep.797;llS. W.Bep. cival, 8 App. Cas. MS. [Ordinary care Is 306; Lonisvllle & N. B. Co. v. Gower, 1 that degree of care which is exercised Pick. (Teun.}466; 3 S. W. Bep. 821.] by ordinary pmdent persons nnder (t) See Add, on Torts, 5th ed., p. 330, similar ctrcnmstances. Bichmond &D. note (z). B. Oo. «. Howard, 79 6a. H; 8 8. £. Bep. U ) TiUett v. Ward. 10 Q. B. D. 17. 6 BBFINITION AND DIVISION OF SUBJECT. to support it {k), and the same holds good of a house which has been built twenty years (I). The reason why the law subordinates his right to mine is because it is expedient to do so. But if an adjoining owner digs a hole near to my modem house, which has not been built' twenty years, I have no dominant right, nor has he ( see this discussed post, Ch. n., s. 2, titw Owners of Property) ; but my right to have my house undisturbed by him is equal to his right to dig in the boundary, and the question of negligence or no negligence in such digging immediately arises. Each party has to use due care — the land-owner that he digs care- fully, and the householder that he builds carefully. If a man built a house close to his boundary so negligently that the soil of the adjoining owner, exercising all possible care, (Jc) See the ftrst question asked la (Z) See the second question asked In Angns V. Ualton, infra. Angus v. Dalton, infra. Lateral and Subjacent Support. — &eneral Principles. — ^The owner of land has the right to the lateral support of the natural soil from the land of his neighbor. — ^Farrand v. Marshall, 21 Barb. 409; 19^. 380; Gilmore V. DriscoU, 122 Mass. 199: O'Neil «. Harkins, 8 Bush, 653; 1 Thompson on Neg., p. 274; Byckman v. Gillis, 57 N. Y. 68; Wharton on Neg., f 929; Morrison v. Lathimer, 61 Ga. 619; Shearman & Bedfleld on Neg., § 496 ; Shaf er v. Wilson, 44 Md. 268 ; Thurston v. Hancock, 12 Mass. 220; Foley v. Wyetb, 2 Allen, 131; Busby v. Holthaus, 46 Mo. 161; Qulncy V, Jones, 76 111. 231 ; Thomas v. AUentown, 28 K. J. Eq. 77; Bich- ardson v. Verm. Cent. B. Co., 25 Vt. 465 ; Stevenson v. Wallace, 27 Gratt. 77; Schultz v. Bower (Minn.), 69 N. W. Eep. 631; United States r. Peachy, 36 Fed. Bep. 160; and to snbjacent support, Mickle o. Douglass, 75 la. 78; 39 N. W. Bep. 198; W;illiam8 1?. Hay, 120 Pa. St. 485; 14 St. Bep. 379 (see Subjacent Support, infra) ; but not when the land is bur- dened with buildinp;s or other improvements. — Quincy v. Jones, 76 111. 231; McGuire «. ,G?ant, 26 N. J. L. 356; O'Connor v. Pittsburg, 18 Pa. St. 187; Panton v. Holland, 17 Johns. 92; Beard o. Murphy, 37 Vt. 99; Union V. Abeles, 36 Ean. 85; Sullivan ». Zeiner, 98 Cal. 346 ; 33Pac. Bep. 209; Louisville & N. B. Co. v. Bonhayo, 94 Ky. 67; 21 S. W. Eep. 526} Victor Min. Co. v. Morning Star Min. Co., 60 Mo. App. 626. The verbal declarations of a defendant during the course of the work are not binding. — Roland v. Murphy, 66 Tex. 634; 1 S. W. Bep. 658. Prescription, — The right to the support of buildings may be acquired by prescription. — Quincy v. Jones, 76 111. 281; Stevenson «. Wallace, LATERAL AND SUBJACENT SDPPOET. 7 [6] was injured, I conclude such adjoining owner might have an action for negligence against the householder (m). (i») Bnt see Llndley, J., in Angus v. lie, thongh practically none can be Dalton, 6 App. Oas. 740, 762, 764; Fry, J., biongbt. See also Dodd v. Holme, 1 A. p. 776; Bowen, J., p.781; the Lord Chan- &£, 493. If the house fell on the ad- cellor, p. 796. All these learned judges Joining owner's land there would also say that In principle an action would arise a right of action for trespass. 27 Gratt. 77; Thniston v. Hancock, 12 Mass. 220, and cases cited above. It has been questioned in some States whether a prescriptive right to the support of buildings can be acquired. — Bichart «. Scott, 7 Watts, 460; Gilmore v. Driscoll, 122 Mass. 199; Mitchell v. Borne, 49 Ga. 19 (where the right is denied) ; Napier v. Balwinkle, 5 Rich. 311. See Hieatt v. Morris, 10 Ohio St. 630; Sullivan v. Zeiner, 98 Cal. 346; 83 Fac. Eep. 210. In the case of Tnnstall «. Christian (80 Ya. 1; 66 Am. Bep. 681), the conrt said : " How under the circumstances mentioned can there be said to be an adverse user of another's property, or how can the acquiescence of one in an act be implied who has neither the right nor the power to prevent it? • * * How can a man be reasonably required to improve liis own property in order to preserve his right respecting it." See Goddard's Law of Easement, Bennett's ed., p. 231, where it is said that the same reasons apply in such case as in those in which the doctrine of prescriptive right to light and air is rejected. An excep- tion is also recognized in cases where the title to adjoining parcels is derived from a common owner. — Stevenson v, Wallace, 27 Gratt. 77; McGuire r. Grant, 25 N. J. L. 366; United States v. Appleton, 1 Sumn. 492; La Sala v. Holbrook, 4 Paige, 169; Montgomery v. Trustees of Augusta, 70 Ga. 38 ; Henry v. Koch, 80 Ky . 391 (party wall) ; Partridge v. Gilbert, 16 N. Y. 601; Rogers v. Sinshelmer, 60 N. T. 646. The owner does not lose the right to the lateral support of the natural soil by plac- ing buildings upon it, if the soU would have sunk in consequence of excavations without the weight of the structures. — Stevenson v. Wal- lace, 27 Gratt. 77. There must be an appreciable damage to entitle one to a right of action for removing the lateral support. — Smith v. Thack- erah, L. B. 1 C. P. 664; 12 Jur. (H. a.) 545; 86 L. J. C. P. 276; 1 Harr. &R. 615. Kegligenee. — Though the right to the support of the land when bur- dened with bnUdlngs has not been acquired, the adjacent owner must use ordinary skill to prevent injuring his neighbor, and if in making an excavation, he conduct the work so negligently as to cause damage to his neighbor's soU, or buildings, he will be held liable therefor. — McGuire V. Grant, 25 N. J. L. 366; Thomas v. Allentown, 28 N. J. Eq. 77; Charless «. Eankin, 28 Mo. 566; Qulncy v. Jones, 76 HI. 231; Shafer v. Wilson, 44 Md. 268; McMillino. Staples, 36 la. 632; Stevenson o. Wallace, 27 Gratt. 8 DEFINITION AND DIVISION OF SUBJECT. [7] Having now shortly explained the meaning of our definition, which it may not be inconvenient to repeat at this [8] place — ' ' Negligence in law is a breach of duty uninten- 77; Boothbyo. Androscoggin, 51 Me. 318; Elchardson «. B. Co., 25 Vt. 463; Foley v. Wyeth, 2 Allen, 131; Shrieve v. Stokes, 8 B. Mon. 463; Bichart v. Scott, 7 Watts, 460; Baltimore v. Beaney, 42 Md. 117; Austin v. Hudson Elver E. Co., 26 N. T.334; Mitchell o. City of Eome,49 Ga. 19; Schwartz v. Daegling, 55 111. 342; Dixon v. Wilkinson, 2 Mc^rthnr, 425; Moellering ». Evans, 12IInd. 196; 22 N. C. Eep. 98§; Larson ». Metro- politan St. Ry.Co., 110 Mo. 234; 19 S.W.Eep.416; TunsUll*. Christian, 80 Va. 1 ; 56 Am. Eep. 681, supra. He must, therefore, give reasonable notice to his naighbor in such case, so that the latter may protect his building. — La Sala v. Holbrook, 4 Paige, 169; Browne. Werner, 40 Md. 15; Shafer v. Wilson, 44 Md. 268; City of Covington K. Geyior, 93 Ky. 275; 19 S. W. Eep. 741. The rule requiring notice was definitely settled in the late case of Schultz v. Byers, 63 N. J. L. 442; 22 Atl. Eep. 614; 44 Abb. L. J. 290. In some States this right is regulated by statute. In Ohio the owner may dig nine feet below the curb of the street on which the property abuts, or where there is no curb, nine feet below the surface of the adjoin- ing lot, or to the depth of the foundation walls of the adjoining build- ing, and is under no obligation to support the walls of the adjoining building when excavating to the statutory depth. — Ohio E. S. 1880, §§ 2676, 2677; Burkhardt o. Hanley, 23 Ohio St. 558; McMillen v. Watt, 27 Ohio St. 306. See Civil Code, Cal., § 832; First Nat. Bank v. Villegia, 92 Cal. 96; 28 Pac. Eep. 97; Aston v. Nolan, 63 Cal. 269; also Laws N. Y. 1882, c. 410, § 474; Ketchum v. Newman, 116 N. T. 422; 22 N. E. Eep. 1052; Jencks v. Kenny, 28 Abb. N. C. 154; 19 N. Y. S. Eep. 243; Cohen «, Simmons, 66 Hun, 634; 21 N. Y. S. Eep. 385; also Comp. Laws, S. D., §2784; Ulrick v. Dakota Loan and Trust Co., 2 S. D.; 49 N. W. Eep. 1054. Independent Contractor. — When the right to the support of the soil with the structures upon it, has been acquired, the defendant cannot escape liability for negligence on the ground that he has placed the work In the hands of a skillful and experienced contractor. — 1 Thomp. on Neg. 278; Stevenson ». Wallace, 27 Gratt. 77; Briggs v. Kloss, 5 Ind. App. 129; 81 N. B. Sep. 208. Nor where a duty is Imposed by statute upon the person making the excavation. — Dorrity v. Eapp, 72 N. Y. 307. To the contrary it was held in United States v. Peachy (36 Fed. Eep. 160), that the employment of a competent architect and skillful work- man negatives the charge of negligence. See Larson o. The Metropol- itan Street By. Co., 110 Mo. 234; 19 S. W. Eep. 416. Memedy.— The adjoining owner may bring an action of damages for injuries to his property, or may enjoin the prosecution of the work LATEBAIi AND SUBJACENT SUl'POET. 9 tional and proximately producing injury to another possess- ing equal rights," — we will proceed to describe the way in which duties arise, and what amount of care is required of excavation. — Wier's Appeal, 81 Pa. St. 203 ; Farrand v. Marshall, 19 Barb. 380; 21 Barb. 409; Trowbridge v. True, 52 Conn. 190; 20 Eep. 425. Municipal Corporation. — The right to the lateral support of the soil of the street can not be acquired by the abntting owner as against a city. — 2 Dillon on Mnn. Corp., 3d ed., § 990, citing Qnincy v. Jones, 76 III. 231; 20 Am. Rep. 243; Transportation Co. v. Chicago, 99 TJ. S. 735; Mitchell V. Bome, 49 Ga. 19. Nor can this right be acquired by a city as against an abutting owner. — Steams v. City of Bichmond, 88 Ya. 992: 14 S. E. Eep. 847; citing Dyer v. St. Paul, 27 Minn. 457; 8 N. W. Eep. 272. Subjacent Support. — The owner of the surface is entitled to the right of support by the mine owner beneath. — Wilms v. Jess, 94 m. 464; Jones V. Wagner, 66 Pa. St. 429; Zinc v. Franklinite Co., 13 N. J. L. 342; Homer v. Watson, 79 Pa. St. 242; Livingstone v. Moingona Coal Co., 49 la. 369; CarUn v. Chappel, 101 Pa. St. 348; 47 Am. E. 722. But not to the support of the buildings upon the surface. — WUms v. Jess, 94 m. 464. Yet the mere presence of buildings upon the surface will not prevent a recovery unless it is shown that the subsidence would not have occurred if they had not been placed there. — Wilms v. Jess, 94 111. 464. It has been held that the right of support of buildings upon the surface may be acquired by prescription. — Partridge v. Scott, 3 M. & W. 220; Eogers v. Taylor, 2 Hurst. & N. 828. The rights of the surface and mine owner may, however, be regulated by the terms of the grant under which they hold, and accordingly the surface owner may or may not be entitled to the support of the soil. — Scranton v. Phillips, 94 Pa. St. 15 ; Eow- botham v. Wilson, 8 H. L. 348; Smart o. Morton, 6 E. & B. 30; Burguer V. Humphrey, 41 Ohio St. 340. Statute of Limitations. — The statute of limitations begins to run in actions of this kind from the time damage accrues. — Backhouse v. Bonomi, 9 H. L. Cas. 503. For removing any part of the subjacent sup- port, a cause of action, it has been held, arises, though no actual damage is done. — Nicklin v, Williams, 10 Exch. 259. But see Backhouse v. Bonomi, 9 H. L. Cas. 503, which practically overrules it. Where a sub- sidence of land, causing damage to plaintiff's cottages, occurred by rea- son of excavations in a coal mine, and some fifteen years after a second subsidence occurred by reason of the previous excavations, the work- ing of the mine having been discontinued from the time of the first subsidence, it was held that a cause of action arose from the damage caused by the second subsidence, and that it was not barred by the stat- ute of limitations. — Mitchell®. Darley Main Colliery Co., Eng. Ct. App., 24 Am. Law Beg. ; 14 Weekly Law Bull. 164. Contributory Negligence. — The owner of property who has been noti- 10 DEFINITION AND DIVISION OF S OBJECT. in their performance, and what is the nature of a breach of duty of which the law takes cognizance, viz., a culp- able act contrary to the duty and proximately producing injury. [9] Duties may arise out of express contracts between parlies, or may be imposed by law. It is not proposed in the present treatise to deal with the breaches of those duties which are expressly or impliedly provided for by the nature or terms of the contract, partly because the field so opened out would be too extensive, and partly because the term " negligence " is not strictly speaking applicable to such breaches of duty, the question in such cases being, not whether the act done or omitted is negligent or not, but whether the act done or omitted is what was or was not expressly or impliedly agreed to be done or omitted. It will, however, be found that cases of breach of contract are frequently referred to in the text. For it very often happens that the contract between the parties is little more than an expression in words of what fled by the adjacent owner intending to make an excavation upon his own land, to protect his buildings, is guilty of contributory negligence, in failing to do so. — Winn v. Abeles, 35 Ean. 86. And when the adjacent owner uses due care and skill in conducting his excavations, he will not be responsible if the building of his neighbor falls because of the insuf- ficiency of its foundation walls. — Bichart o. Scott, 7 Watts, 460. The case would perhaps be different if the owner was entitled of right to the support of his land and buildings. The fact that the building was neg- ligently constructed has been held to be evidence properly submitted to the jury. — Stevenson v. Wallace, 27 Gratt. 77. The subsidence of land caused by the weight of a building erected on the surface after the execution of a lease to the defendant authorizing him to take the min- erals beneath the surface, may be shown in defense as contributory neg- ligence. — Wilms V. Jess, 91 111. 461. Damages. — The measure of damages is the diminution in the value of the land. — Hoellerlng v. Evans, 121 Ind. 198 ; 22 N. £. Rep. 989 ; Schultz V. Bower (Minn.), 59 N. W. Kep. 631; McGnire «. Grant, 25 N. J. L. 356, and many of the cases above cited. Provided the doctrine of pre- scription is sustained it is reasonable that injury to ancient houses should be considered in estimating the damages. r PRIVITY OP CONTRACT. 11 the law would otherwise impose, and the question raised between the parties is the same as if there had been a breach of duty imposed by law. Where persons have imposed en- tirely new duties upon themselves by agreement, or have limited or varied by agreement the obligations imposed upon them by law, this treatise will not deal with the ques- tion of their liability. Sometimes, however, where there has been a breach of contract towards the contracting party there has also been a breach of duty towards a third person not privy to the contract, and such breach of duty is actionable. Thus, where a man sold a gun which he knew to be dan- gerous to the father of a lad, knowing the. lad would use it (n), and where a man sold a pernicious hair dye to another man, knowing his wife would use it, the defendants in each case were held liable for the injuries done to such third parties on the ground that knowing who was going to use the articles they owed to such third parties a duty to [10] use care towards them (o). But where a man neg- ligently built a coach (p), and negligently put up a chan- delier (q), it was held that he owed no duty to a stranger and was not liable to a stranger who was injured in consequence of such negligence. In an American case (r), it was held that where the negligence was dangerous to human life, as in the case of poisonous drugs, the negligent person was liable to any one, however remote, who was injured. The true question always is, has the defendant committed a breach of duty apart from contract ? If he has only committed a breach of contract he is liable to those only with whom he has contracted; but if he has (n) Levy v. Langridge, i M. &. W. 337. rnled, see infra. [See Elliott v. Hall, M This case tamed on the question of Ii. J. Bep. Q.B.518.] fraud. (9) Collis v. Selden, L. B. 3 O. P. (o) George v. Skivlngton, L. B. 1 495 ; 37 L. J. C. P. 223 ; Longmeld v. Hoi- Ezch. 1. Uday, 6 Exch. 767; GladweU v. Steggall, (p) Winterbottom v. Wilght, 10 M. & 8 Scott, 67 ; S Blng. N. C. 733. W. 109; see also Heaven ». Pender, 9Q. (r) Thomas v. Winchester, 6 N. T. B. D. 302; which case, however, is over- 397; and see Parry v. Smith, 48 L. J. C. P. 731; 4C. P. D. 325. 12 DEFINITION AND DIVISION OF SUBJECT. committed a breach of duty he is not protected by setting up a contract in respect of the same matter with another person (s). Since the above statement of what appeared to me to be the law, the case of Heaven v. Pender '(«) has been decided in the Court of Appeal. The Court, which con- es) See Anstin v. Gt. Weetem By. ((} Heaven v. Pender, 11 Q. B. D, Co., per Blackbarn, J., L. B. 2 Q. B. U2; 506. 36 L. J. Q. B. 281. Privity of Contract. — The doctriae of the text is sustained In a number of cases. (Lawson Cont, § 241.) It was announced In Necker V. Harvey (49 Mich. 617), where an employe of the vendee was injured by the defective construction of an elevator, though the vendor and manufacturer was held liable because he was controlling it at the time of the injury. Where A. sold a defective balance wheel to B., which burst four years after, killing C, it was held that C.'s personal representative could not maintain an action against A. — Loop v. Litchfield, 42 N. Y. 361, And in Losee v, Clute, 51 N. Y. 494, a manufacturer and vendor of a Steam boiler which exploded because of its defective construction was held not liable for injuries caused thereby to a third person, a case, the soundness of which has been questioned. — 1 Thomp. Neg. 233 ; Heizer v. Eingsland, 19 S. W. Rep. 630. The extreme case in the other direction is that of Van Winl^le v. American Steam Boiler Insur- ance Company (62 N. J. L. 240; 19 Atl. Eep. 472), where' the insurer of a steam boiler, who co-operated with the owner in the management, was held liable for damage to the adjacent property of a third person, caused by the explosion of the boiler which he had omitted to properly test and inspect. — Vide Schubert o. Clark, 61 N. W. Eep. 1103. Upon the same principle, attorneys, clerks and recorders have been held not liable to third parties for losses sustained by negligence in the examination of titles. — Houseman v. Girard, M. B. & L. Ass., 81 Pa. St. 256; Savings Bank v. Ward, 100 U. S. 196; Dundee, etc., Co. v. Hughes; U. S. C. C, D. Greg., 18 C. L. J. 470; 24 Am. Law Reg. 197; Common- wealth o. Harmer, 6 Phila. 90; McCaraher v. Commonwealth, 5 Watts & S. 21; Day V. Reynolds, 23 Hun, 131; Fish v. KeUy, 17 C. B. (n. s.) 194. See Kahl v. Love, 87 N. J. L. 6. So, in an attachment proceeding, plaintiff's attorney, at the request of the sheriff to WBite a bond, properly wrote a replevy bond. Bondsmen signed this thinking it only a forthcoming bond and this the attorney knew. Subsequently he took judgment by default, without giving the bondsmen notice, and upon being sued by them he was held not liable. Brando. Craig, 84 Ga. 12; 10 S. E. Eep. 369. See Farmer v. Crosby, 43 Minn. 459; 46 N. W. Rep. 866. PBIVIXy OF CONTEACT. 13 [11] sisted of Brett, M. R., and Cotton and Bowen, L.JJ., agreed in reversing the judgment of the court below, and held the defendant to be liable ; but they differed in their reasons. The principle enunciated by the Master of th^ [12] Rolls seems to be that if a reasonable man must see that\ if he did not nse care in the circumstances he might cause 1 injury to the person or property of another^ a duty arises / to use such care. This seems to be (as suggested in the It was applied In the case where a bridge contractor built a bridge nnder a contract with the connty board of freeholders and a third person was injured by its tall. — Marion Safe Co. v. Ward, 17 Vroom, 19. Where one bought grain on the faith of the certificate of an inspector With whom the purchaser did not contract. — Gordon v. Livingston, 12 Mo. App. 267. Where a water company contracted to supply a city with water, and in consequence of a breach of the contract the city was unable to extin- guish a fire, the company was held not liable to a citizen who sufiered damages thereby. — Kickerson V.Bridgeport Hydraulic Co., 46 Conn. 24; 33 Am. Bep. 1 ; Davis v. Clinton Water Works, 54 la. 69 ; 37 Am. B. 185. But see in Jhis connection the case of Iiampert v. Laclede Gas-Light Co., 14 Mo. App. 376, where it was maintained that a recovery could be had by one injured by the " negligent non-performance of a public duty" against a gas company which had contracted with the city to keep its lamp posts and lamps in repair. Where a long course of dealings between a coal merchant and a cus- tomer establishes an Implied agreement that the merchant would furnish tackle for use in unloading coal from the merchant's barges, the latter is liable to a servant of the former for personal injuries caused by a defect In the tackle.— Hayes v. Philadelphia & B. C. & I. Co., 150 Mass. 467 ; 28 N. E. Bep. 225. See Hulse v. New York, etc., B. Co., 71 Hun, 40; 24 N. T. S. Bep, 512. Liability for SelUns Dangerous Goods. — But where the vendor has committed a breach of duty his liability has been held to extend to third persons, and this rule has been applied to the case of the sale of danger- ous goods, as explosive oUs. — Wellington v. Downer Kerosene Oil Co., 104 Mass. 64; Elkins v. McEean, 79 Fa. St. 493; Hoorigano. Newell, 110 Mass. 470. To the sale of poison for a harmless medicine. — Thomas v. Winches- ter, 6 N. T. 397; Norton v. Sewell, 106 Mass. 143. As between vendor and vendee, the vendor has been held not liable for an omission to label a poisonous drug where he had warned the vendee of its dangerous character and given accurate instructions as to its nse. — Wohlfahrt v. Beckert, 92 N. T. 490. 14 DEFINITION AND DIVISION OF SUBJECT. first edition of this work) the true rule. The language of the Master of the Eolls is, however, so clear and emphatic, and his comments on the cases"' so instructive, that his judgment is given in full in Appendix A.^ 1 [Tbe case is given in lall in the notes.] Bbett, M. B. : In this case the plaintiff was a workman in the employ of Qiaj, a ship-painter. Gray entered into a con- tract with a ship-owner, whose ship was in the defendant's dock, to paint the oatslde of the ship. The defendant, the dock-owner, supplied, nnder a contract with the ship-owner, an ordinary stage, to be slang in the ordinary way oatslde the ship for the purpose of painting her. It mast have heen known to the defend- ant's servants, if they had considered the matter at all, that the stage wonld be pat to immediate nse, that it would not be used by the ship-owner, bat it would be used by such a person as the plaintiff, a working ship-painter. The ropes by which the stage was slung, and which were supplied as part of the instrument by the defendant, had been scorched, and were unfit for use, and were sup- plied without a reasonably careful at- tention to their condition. When the plaintiff began to use the stage the ropes broke, the stage fell, and the plaintiff was injored. The Divisional Court held that the plaintiff could not recover against the defendant. The plaintiff appealed. The action is in form and substance an action for negligence. That the stage was, through want of attention of the defendant's servants, supplied in a state unsafe for use is not denied. Bat want of attention, amounting to a want of or- dinary care, is not a good cause of ac- tion, although Injury ensue from such want, unless the person charged with such want of ordinary care had a duty to the person complaining to use ordi- nary care in respect of the matter called in question. Actionable negligence con- sists in the neglect of the use of ordi- nary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without con- tributory negligence on his part, has suf- fered injury to his person or property. The question in this case is whether the defendant owed such a duty to the plaintiff. If a person contracts with another to nse ordinary care or skill towards him or his property, the obligation need not be considered in the light of a duty ; it is an obligation of contract. It is un- doubted, however, that there may be the obligation of such a duty from onei^ per- son to another, although there Is no con- tract between them with regard to such duty. Two drivers meeting have no con- tract with each other, but under certain circumstances they have a reciprocal duty towards each other. So two ships navigating the sea. So a railway com- pany which has contracted with one per- son to carry another has no contract with the person carried, bat has a| duty to- wards that person. So the owner or occupier of a house or land who permits a person or persons to come to his house or land has no con- tract with such person or persons, but has a duty towards him or them. It should be observed that the existence of a contract between two persons does not prevent the existence of the suggested duty between them also being raised by law.independently of the contract, by the facts with regard to which the contract Is made, and to which It applies an ex- actly similar but a contract duty. We have not in this case to consider the cir- cumstances in which an implied contract may arise to use ordinary care and skill to avoid danger to the saf tety of person or property. We have not in this case to consider the question of a fraudulent misrepresentation, express or implied, which is a well recognized head of law. The questions which we have to solve in this case are, what is the proper defi- nition of the relation of two persons, other than the relation establwhed by contract or fraud, which imposes on the oae of them a duty towards the other PRIVITY OF CONTBACT. 15 [13] Cotton, L. J., read a writtenjudgment in which Bowen, L. J., concurred; but it would have been interesting to have been able to read the reasoning of the latter [14] learned judge in his own words. The substance of their to observe, with regard to tbe person or property of each other, each ordinary care or s^lll as may be necessary to pre- vent Injnry to his person or property; and whether the present case falls within such definition. When two drivers or two ships are approaching each other snch a relation arises between them, when they are approaching each other In such a manner that, nnless they use ordinary care and skill to avoid it, there will be danger of an Injnrions collision between them. This relation is estab- lished in such circumstances between them, not only if it be proved that they actaally know and think of this danger' bnt whether snch proof be made or not. It Is established, it seems to me, becanse any one of ordinary sense who did think, wonid at once recognize that U he did not use ordinary care and skill nnder snch circomstances there would be snch danger. And every one ooght, by the nnlvers- ally recognized roles of right and wrong> to tliink so mnch with regard to the safety of others who maybe jeopardized by his conduct; and if, being in snch circnmstances, he does not think, and in conseqnence neglects, or if he neglects to nse ordinary care and skill, and Injury ensue, the law, wlilch takes cognizance of and enforces the rules of right and wrong, will force him to give an indem- nity for the injury. In the case of a rail- way company carrying a passenger with whom it has not entered Into the con- tract of carriage, the law implies the duty, because it must be obvious that nnless ordinary care and skill be used the personal safety of the passenger must be endangered. With regard to the condition in which the owner or oc- cupier leaves his house or property, other phraseology has been used which it Is necessary to consider. If a man opens his shop or warehouse to customers it Is said that he invites tbem to enter, and that this invitation raises the relation between them which imposes on the invlter the dnty of using reasonable care so tokeep honse or ware - house Lthat it [does] not endanger the person orproperty of the person Invited. This is, in a sense, an accurate phrase, and, as applied to the circumstances, a BuiBclentiy accurate piirase. Tet it is not accurate U the word "invitation " be nsed in its ordinary sense. By opening a shop yon do not really invite — you do not ask A. B. to come in to buy; you in- timate to him that If it pleases him to come in he will And things which yon 'are willing to sell. So In the case of shop, warehouse, road, or premises, the phrase has been used that if you permit a person to enter them yon Impose on yourself a duty not to lay a trap for him . This, again. Is, in a sense, a true state- ment of the dnty arising from the rela- tion constltated by, the permission to' enter. It is not a statement of what causes the relation which raises the duty. What causes the relation is the penqission to enter and the entry. But it is not a strictly accurate statement of the duty. To lay a trap means in lan- guage to do sometbingwith an intention. Tet it is clear that the duty extends to a danger the result of negligence without intention. And with regard to both these plirases, though each covers the circumstances to which it is particularly applied, yet It does not cover the other set of circumstances from which an ex- actly similar legal liability is inferred. It follows, as it seems to me, that there must be some larger proposition which Involves and covers both sets of circnm- stances. The logic of inductive rea- soning requires that where two major propositions lead to exactly similar minor premisses there must be a more remote and larger premiss which em- braces both of the major proposi- tions. That, in the present considera- tion is, as It seems to me, the same proposition which will cover the similar legal liability inferred in the cases of collision and carriage. The proposition 16 DEFINITION AND DIVISION OP SUBJECT. judgment was to the effect that the plaintiff was engaged on work at the invitation of the defendant, which is altogether [15] another question to that which we are now consider- ing, and is treated of elsewhere. But they took occasion to wliich these lecognlzed cases snggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that, if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avqid such danger. without displacing the other proposi- tions to which allusion has been made, as applicable to the particular circum- stances In respect of which they have been enunciated, this proposition In- clndes, I think, all the recognized cases of liability. It is the only proposition which covers them all. It may, there- fore, safely be afflrmed to be a true proposition, unless some obvious case can be stated in which the liability must be admitted to exist, and which yet is not within this proposition. There is no such case. Let us apply this proposi- tion to the case of one person supplying goods or machineiy or instruments or utensils, or the like, for the purpose of their being used by another person, but with whom there is no contract to sup- ply. The proposition will stand thus: whenever one person supplies goods, or machinery, or the like, tor the purpose of their being used by another person, under such circumstances that every one of ordinary sense would, if he thought, recognize at once that, unless he used ordinary care and skill with re- gard to the condition of the thing sup- plied or the mode of supplying it, there wiU be danger of injury to the person or property of him tor whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner ot supplying such thing. And tor a neglect of such ordinary care or skill whereby Injury happens, a legal liability arises to be :J enforced by an ' action for negligence. This includes the case of goods, &c. supplied to be used immediately by a particular person or persons, or one of a class of persons, where it would be obvious to the person supplying, if he thought, that the goods would In all probability be used at once by such pe r- sons before a reasonable opportunity for discovering any defect which might exist, and where the things supplied would be ot such a nature that a neglect ot ordinary care or skill as to its condi- tion ot the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under clrcnm- stanoes in which it would be a chance by whom they would be used, or whether they would be used or not, or whether they would be used before there would probably be means of observing any de- fect, or where the goods would be ot such a nature that a want of care or skill as to their condition or the manner ot supplying them would not probably produce danger of injury to person or property. The cases ot vendor and pur- chaser and lender and hirer under con- tract need not be considered, as the lia- bility arises under the contract, and not merely as duty imposed by law, though it may not be useless to observe that it seems dificult to import the implied ob- ligation into the contract, except in cases in which, if there were no contract between the parties the law would, ac- cording to the rule above stated, imply the duty, Examining the rule which has been above enunciated with the cases which have been decided with regard to goods supplied for the purpose ot being used by persons witb whom there Is no con- tract, the first case to be considered is Inevitably Langrldge v. Levy (2 M. & W, 519; 1 M. & W. 337). It is not an easy case to act upon. It is not — it cannot PRIVITY OF CONTRACT. 17 say that they did not concur with the Master of the Bolls, [16] and cited the usual authorities. They, however, said that they did not doubt that any man who leaves or supplies a dangerous instrument or thing, which to'his knowledge is be — accnrately leported; the declara- tion Is set ont; the eyidence Is assumed to be reported ; the questions left to the ]ary are stated. And then it is said that a motion was made to enter a nonsuit in pnrsnance of leave reserved on particn- lar grounds. Those gronnds do not ralso the question of fraud at all, but only the remoteness. And although the^uestlon of fraud seems in a sense to have been left to the jury, yet no question was, ac- cording to the report, left to them, as to whether the plaintiff acted on the faith of the fraudulent misrepresentation which Is, nevertheless, a necessary question In a case of fraudulent misrep- resentation. The report of the argu- ment makes the object of the argument depend entirely upon an assumed motion to arrest the judgment, which raises al- ways a discussion depending entirely on the form of the declaration, and the ef- fect on it of a verdict, in respect of which it Is assumed that all questions were left to the jury. If this was the point taken, the report of the eyidence and of the questions left to the jury is idle. The case was decided on the ground of a fraudulent misrepresentation as stated in the declaration. It is inferred that the defendant intended the representa- tion to be communicated to his son. Why he should have such an intention, in fact, seems difficult to understand. His immediate object must have been to induce the father to buy and pay for the gun. It must have been wholly indiffer- ent to him whether, after the sale and payment, the gun would be used or not by the son. I cannot hesitate to say that, in my opinion, the case is a wholly unsatisfactory case to act on as an au- thority. But taking the ease to be de- cided on the ground of a fraudulent misrepresentation made hypothetically to the son, and acted upon by him, such a decision npon such a ground in no way negatives the proposition that the action might have been supported on the ground of negligence without fraud. It seems to be a case which is within the proposition enunciated in this judgment, and in which the action might have been supported without proof of actual fraud. And this seems to be the meaning of Oleasby, B., in the observation he made on Langridge v. Levy (1 M. & W. 619, 1 M. & W. 337) in the case of George v. Skivington (LawBep.SEx, ],B). In that case the proposition laid down in this judgment is clearly adopted. Xhe ground of the decision is that the article was, to the knowledge of the defendant, supplied for the use of the wife, and for her Immediate use. And certainly, if he, or any one in his position, had thought at aU, it must have been obvioua that a want of ordinary care or skill In preparing the prescription sold would endanger the personal safety of his wife. In Corby v. HIU (4 G. B. (N. S.) 556; 27 L. J. G. P. (N. S.) 318) it is stated by the Lord Chief Justice that an allure- ment was held out to the plaintiff. And WiUes, J., stated that the defendant had no right to set a trap for the plaintiff. But in the form of declaration suggested by Willes, J., on p. 567, there is no men- tion of allurement, or invitation, or trap. The facts suggested in that form are " that the plaintiff had license on the road; that he was inconsequence accus- tomed and likely to pass along it; that the defendant knew of that custom and probability; that the defendant negli- gently placed slates in such a manner as to be likely to prove dangerous to per- sons driving along the road; that the plaintiff drove along the road, being, by reason of the license, lawfully on the road; and that he was injured by the obstruction. It Is impossible to state a case more exactly within the proposition laid down In this judgment. In Smith V. London and St. Eatherine Docks Go. (Law Rep. 3 G. P. 326) the phrase is again used of invitation to the plaintiff by the defendants. Again, let It be observed that there is no objection to the phrase 18 DEFINITION AND DIVISION OP SUBJECT. [17] such as to cause danger not necessarily incident to its use, is liable. This, however, is the principle of Tarry v. Ashton and other cases, and is not disputed. The present treatise, therefore, is limited as far as possible to the breach of duties imposed by law. These as applied lip thn case. But the real value o£ the phrasQ may not improperly be said to be, that Invitation Imports knowl- edge by the defendant of the probable use by the plaintiff of the article sup- plied, and therefore carries with it the^ relation between the parties which es- tablishes the duty. In Indermanr v. Dames (Law Rep. 1 0. P. 274; Law Rep. 2 0. P. SIl) reliance is again placed upon a supposed invitation of the plaintiff by the defendant. But, again. It is hardly possible to state facts which bring a case more completely within the deflnition of the present Judgment. In Wlnterbottom II. Wright (10 M. & W. 109) it was held that there was no duty oast upon the defend- ant with regard to the plaintiff. The case was decided on what was equiva- lent to a general demurrer to the declar- ation. And the declaration does not seem to show that the defendant, if he had thought about It, must have known, or ought to have known, that the coach would be necessarily or probably driven by the plaintiff, or by any class of which he could be said to be one, or that It would be so driven within any time which would make It probable that the defect would not be observed. The declaration relied too much on con- tracts entered into with other persons than the plaintiff. The facts alleged did not bring the case within the proposition herein enunciated. It was au attempt to establish a duty towards all the world. The case was decided on the ground of remoteness. And it Is to too great a remoteness that the observation of Ijord Abinger Is pointed when he says that.the doctrine of Langridge v. Xevy (3 M. & W. 519 ; 4 M. & W. 337) Is not to be extended- In Francis ti. OockreU (Law Rep. 5 Q. B. 184, and p. 501) the decision is put by some of the judges on an implied con- tract between the plaintiff and the de- fendant. But Cleasby, B. (p. 615), puts it upon the duty raised by the knowledge of the defendant that the stand was to be used immediately by persons of whom the plaintiff was one. In other words, he acts upon the rule above laid down. In Collis V. Seldon (Law Rep. 6 C. P. 495) it was held that the declaration dis- closed no duty. And obviously, the de- claration was too uncertain. There Is nothing to show that the defendant knew more of the probability of the plaintiff rather than any other of the public being near the chandelier. There was nothing to show that the plaintiff was more likely to be In the public house than any other member of the public- There was nothing to show how soon after the hanging of the chandelier any one might be expected or permitted to enter the room In which it was. The facts stated do not bring it within the rnle. There Is an American case — Thomas and Wife (6 N. T. 397) — cited in Mr. Horace Smith's Treatise on the Law of Negligence (p. 88, n. (6), which goes a very long way. I doubt whether It does not go too far. In Longmeid v. Holllday (6 Ex. 761 ; 20 Law J. (Ex.) 430) a lamp was sold to th6 plaintiff to be used by the wife. The jury were not satisfied that the defend- aut knew of the defect in the lamp. If he did, there was fraud; If he did not, there seems to have been no evidence of negligence. If there was fraud, the case was more than within the rnle ; if there was no frand, the case was not brought by other circumstances within the rule_ In Gautret v. Egerton (Law Bep. 2 C. P. 371, at p. 374), the declaration was held by Wllles, J., to be bad on demurrer, because in did not show that the defend- ant had any reason to suppose that per- sons going to the blocks would not have ample means of seeing the holes and cnttings relied on. He does not say that there must be fraud in order to support the action. He says there must be some- CLASSES OF DUTIES. 19 duties may be such as the law imposes or infers from the possession of rights or from the relations of life, such as " employer and employed," or such as the law specifically imposes by statute. They divide themselves, therefore, into three heads, (1) duties which arise out of rights, (2) duties which arise out of employment, (3) duties imposed by statutes. (1) Men are put by the law in possession ol Hghts, and the law imposes upon all men in the exercise of any right a duty not to interfere with the equal rights of another apart from any agreements which they may have made between themselves. If in the exercise of a right which a man has by law, hei unintentionally breaks or omits the duty of not interfering with the equal rights of another which is imposed by law and thereby injures another, he is guilty of a tort called negligence. (2) So, also, where two persons assume relations to- wards each other of employer and employed involving the performance of services, there the law implies or imposes the conditions that the performance must be carefully [18] carried out. These are, strictly speaking, contracts, and the law implies certain terms as appertaining to these contracts. (3) And lastly, where a statute directs a person to per, form a duty and he omits to perform that duty with care, he is guilty of negligence. thimg like fraud. He says :—" Every Unless that be true the proposition must man Is bound not wilUnlly to deceive be true. It it be the rule the present others." And then, in the alternative, ease is clearly within It. This case Is he says: — " Or to do amy act which may also, I agree, within that which seems place them im danger." There seems to to me to be a minor proposition — be no case In conflict with the rule above namely, the proposition which has been deduced from well admitted cases. I often acted upon — that there was in a am, therefore, of opinion that it is a sense, an Invitation of the plaintiff by £ood, safe and just rale. the defendant to use the stage. This I cannot conceive that if the facts appeal must, in my opinion, be allowed, were proved which would make out the and judgment must be entered for the proposition I have enunciated, the law plaintiff, can be that there would be no liability. 20 DEFINITION AND DIVISION OF SUBJECT. Bat although duties may be said to arise in these three separate ways, yet it will be foand that the origin of the duty does not materially affect the question of liability for the breach of the duty. It may be remarked that in general duties imposed by statute are to be more strictly observed than those which are not so imposed (u) ; but I think that in most of the cases it will be found that the statutory duty is imposed when a benefit is also bestowed, and it is in consideration of the benefit so bestowed that something more than ordinary care is expected in the exe- cution of the duty («). But the law draws a very important and practical dis- tinction between ordinary negligence and negligence where the law demands greater or less care. The law demands greater care where a person has or professes to have greater skill, or where an extra amount of care has been under- taken, or advantage obtained, or where the latr deems it for the public good to require a greater amount of care ; and the law demands a less amount of care where a less amount has been undertaken, or where no advantage has been obtained, or where the public good is not materially at stake. There is in law a well-known relationship, viz., that of insurer and assured, by which one person engages to in- demnify or to assure another against loss. This is usually- effected by express contract, but is sometimes implied by the law, as, for instance", in the case of common carriers, who become a sort of insurers of goods entrusted to them [19] for carriage, and are bound to carry safely, and are an- swerable for loss without any proof of negligence. With regard to such contracts, express or implied, no question of Begligence arises ; and the same holds with respect to cases which may be said to be in the nature of assurance, viz. , where a person brings upon his land some dangerous (u) See Campbell, p. 35, 2nd ed. (x) See pott; Ch. IIL, s. 6, Gorpoia- tlons peTtorming Statntoiy Duties, DEGHEES OF NEGLIGENCE. 21 thing, sach as fire or water, or a dangerous animal, for he is bound, as we shall see, to keep it at home at his peril. In all these classes of cases something more than " care," however diligent, is demanded, viz. , absolute indemnity. But between these classes and those duties which require the exercise of ordinary care there appears to be a great number of cases in which the law requires something more than ordinary care and something less than insurance. Ther» is also a further class, where less than ordinary care is required, and yet the law will see that a man is not absolutely careless of the rights of another. This mode of dividing the duties regarded by law as obligatory, and which is adopted more or less distinctly in the language of English judges, is derived from the Soman law. The Bomans divided duties into three classes, (1) for the benefit of the performer, ( 2 ) for the benefit of both par- ties, (3) for the benefit of the performee. Thus, (1) Where the transaction in respect of which the duty arose was for the benefit of the person performing it, it was consid- ered that, as it was to be done for his advantage alone, and he was to derive benefit ft-om another, he ought to take the greatest care not to injure that other; and he was therefore held liable for culpa levis, or slight neglect. (2) Where the transaction out of which the duty arose was for the benefit of both parties, it was considered that the person performing the duty should take ordinary and reasonable care; and he was therefore held liable for culpa, (3) Lastly, where the transaction out of which the duty arose was for the sole benefit of another, and the person per- forming it would derive no benefit from it, it was considered [20] that the person performing it was not bound to exer- cise much care ; and he was therefore held not liable, except for culpa lata (y). (y) Bat In case of mandate, even the Roman law, he has nndertaken a where for the benefit of another, he gratnitous service and mnst perform it. was by tiie Boman law liable for aUpa ox Campbell, a. 11 ; Wharton, s. 493, and, as even, perhaps, for culpa levii; for, said pointed oat by Hr. Wharton, s. 600, the 22 DEFINITION AND DIVISION OF SUBJECT. Different writers have divided these sorts of negligence in different manners, some insisting that there are only two sorts of negligence — ^'■cvJ.pa levis" and "culpa lata; " others dividing the subject into three sorts — " culpa lata," culpa (including culpa levis), and culpa levhsima (a) ; but it seems upon the whole to be held in the English Court (a) and in the American Courts (b) that there are three sorts of negligence, and it has been held that sometimes per- sons are liable for slight negligence, sometimes for ordi- nary negligence, and sometimes for gross negligence ; and it will be found impossible not to advert to these terms, which were in the Roman law really co-ordinate to the dis- tinctly different kind of duty which was to be performed, and which will be found constantly used in the English cases. The truth is that the words " gross," " ordinary," and " slight " (c), howevej useful in the simpler classification of the Eomau law, and used with the more exact precision of the Latin language, have become vague and misleading in the English cases and text-books, and, indeed, are some- times used merely, to express strong feeling with respect [^21] to the particular action being tried. It is submitted that the best test of whether an act is culpably negligent in the particular case is to inquire whether there was a duty to exercise ordinary care, or something more or less than ordinary care, incumbent upon the party, and whether he had reasonably fulfilled that duty; if he has, he is not giatnltous mondstoiy mnst according to " slight "is not exactly " levis," whlsh Is OUT law, bring that amonnt of skill to "light," and that the word "gross" Is the execution of his services which he not exactly " lata," and that in each has taken to show. And see post, Ch. HI. instance the English word is too strong, (2) See Campbell, p. i. and, in fact, as is usual in English.more (a) See Campbell, s. U. (He divides vigorous and picturesque than accurate, obligations into four classes, but one of The word " gross " seems to approach, them is " absolute assurance," which the Latin " dolus," which denotes the is really outside of the subject.) Shear- Intentional wrong, and is outside of our man, Ch. II., D. 16. subject; and the word "slight" ap- (6) See this view discussed by Whar- preaches to that "aUpalevissima" which ton, s. 67. is sometimes spoken of as negligence, (c) It may be noticed that the word but amounts to " casus," or accident. DEGKEES OP NEGIilGENCB. 23 negligent ; if he lias not, he is negligent. The words "ordinary" and "reasonably" are no doubt vague, but the subject is only further obscured by the introduction of the words "gross" and "slight," because nobody can really say what they mean, though anybody may easily give to them some peculiar or exaggerated meaning (d). The question to be considered, therefore, is, when an injurious act has been done, which of the three sorts of duty had the man to perform, viz., more than ordinary care, ordinary care, or less than ordinary care, and accord- ing as it is found to be of the first, second, or third class, so is he liable for slight, ordinary, or gross negligence; and the sort of duty demanded of him depends very much, but not entirely, upon the question for whose benefit was he doing the duty. As an illustration, take the following case : — My goods are lost. The person who lost them was (1) dealing with them for his own advantage alone, (2) for our mutual advantage, (3) for my advantage alone. His duty is (1) to take more than ordinary care, (2) to take ordinary care, (3) to take less than ordinary care. He is liable (1) for slight, (2) for ordinary, (3) for gross negligence. The jury having found as a fact that the defendant was dealing with the goods for his own advan- tage, or for the mutual advantage of both parties, or for my advantage alone, the law says for what sort of negli- gence he is liable. The next question is a matter of fact for the jury. As a matter of fact, he left them for two minutes outside an inn on the road. Now comes the ques- [22] tion, is that an act of slight, ordinary, or gross negli- gence? The jury would then have to consider the questions of fact apart from the persons ; as, for instance, were the goods of a class likely to be lost or stolen ? was the cart properly covered ? was the inn in a populous place ? and so on . The sort of care to be taken depends upon the duty or posi- es) See judgment of Lord Ohelmsloid in Glblin v. McMnllen, L. B, 2 F. O. 317. 24 DEFINITION AND DIVISION OF SUBJECT. tion of the party, and is a qaestion of law ; the amount of care to be taken depend^ upon circumstances, and is a question of fact. If a person gives me a glass jug and a deal box to carry, the sort of care which I have to exercise depends upon my position with respect to that person, e.g., ^m I paid by him or not; but the amount of care (whatever the sort of care may be) will differ, and be probably greater in respect of the glass jug than of the deal box (e). (e) See Fhiladelpbia B7. Oo. v. Boyer, By. Co., ante, p. 2 ; and It Is now well set- 97 Pa. St. 101. In an action of negligence, tied In England that a mere scintilla ot as in othei actions, it is tor the jadge to evidence is not sufficient to go to the say whether there is any evidence ot Jury, Gee v. Met. By. Co., L. B. 8 Q. B, negligence at all to go to the jniy, and It 161; 42 L. J. Q. B. 105; Met. By. Co. v. not, to direct a nonsnlt, Daniel v. Met. Jackson, 17 Ii. J. H. L. 303; L. B. 3 App. (d) The tendency ot the American courts has been toward rejecting the distinction formerly recognized as to degrees of negligence. — Steamboat New World v. King, 16 How. 474; R. R. Co. v. Lockwood, 17 WaU. 357; Gill V. Mlddleton, 105 Mass. 479; Milwaukee, etc., B. Co. v. Arms, 91 U. S. 494; Briggs v. Taylor, 28 Vt. 185; Cass v. Boston B. Co., 14 Allen, 448; Perkins v. N. T. Cent. R. Co., 24 N. Y. 206; Whart. on Neg. (2d ed.), § 64; Wells v. N. Y. Cent. R. Co., 24 N. Y. 181 ; Smith v. N. Y. Cent. R. Co., 24 N. Y. 241; City of Lincoln v. Smith, 28 Neb. 762; 45 N. W. Rep. 41 ; McAdoo v. Richmond & D. B. Co., 106 N. Y. 140 ; 11 S. E. Rep. 316; Brooks o. Hannibal & St. J. R. Co., 36 Mo. App. 571 ; City of Vandalla v. Ropp, 89 Ul. App. 344; McGrath v. Village of Bloomer, 73 Wis. 29; 40 N. W. Rep. 585. The distinction is approved in Shearman & Redfield on Neg., 2d ed., §§ 16 and 17 and notes, citing many cases. See an article on this snbject, 17 Cent. Law JI. 261. It is declared in New Hampshire by statnte. — N. H. Gen. St. 1878, chap. 264, § 14; State v. Boston and Maine R. Co., 58 N. H. 408. Characterized as Impracticable in Ohio. — Western Union Tel. Co. 0. Griswold, 37 Ohio St. 311, 313. In Siegrist v. Arnot, 10 Mo. App. 197, it is said : " There are no degrees of negligence known to the law where the subject of the bailment is human life." However, there are cases adhering to the common law clasalflcatlon. Thus, in Chicago & N. W. Ry. Co. v. Chapman (30 111. App. 504), it was held, that the terms " gross negligence " and " the want of slight care " are convertible ; and have the same meaning. See Barnum v. Terpennlng, 75 Mich. 557; 42NewRep. 967; Little Rock, M. B. & T. By. Co. v. Haynes, 47 Ark. 497; 1 S. W. Rep. 774; City of BocldEord o. Hallenbeck, 34111. App. 40; Petrie v. Columbia & G. R. Co., 29 S. C. 303; 7 S. E. Rep. S15. DBGBEES OF NEGLIGENCE. 25 [23] The subject will, therefore, be divided in the next there chapters into — 1. Neglect of duties requiring ordinary care. 2. Neglect of duties requiring skill, or an extraordinary amount of care. 3. Neglect of duties requiring leas than ordinary care. These chapters are divided into sections ; the first section of the first chapter dealing with ordinary duties of people in general, or ordinary people, while in the other sections certain classes of persons have for convenience sake been taken separately. The principles of law which govern them all are the same, but when it has to be decided as a matter tff practice whether a particular act is negligent or not, it is useful (though unscientific) to refer to cases where the facts have been of a similar description. For' instance, the law says that a man should take such care as a reasonably careful msm would take, when he is riding along a road, or when he is selecting workmen to perform some work ; but to say that it has been held negligence to spur a horse in a crowd would throw very little light upon the hiring of work- men, though it might do so upon the question whether whipping a horse in a crowd would be negligence. Before passing from the definition of our subject, it is necessary to explain at somewhat greater length than we Cas. 193; thongh In America it wonld tain Issne la proved, per Loid Fenzance, seem tbat tbe question of negligence is t&.atp.ll81. The judges have sometimes always a question for the jury. Shear- been very astute to discover that there man,13[sec. 11]. Upon any given state Is no evidence to go to Hhe jury when it of facts it is forthe judge to say whether would seem there Is some apprehension negligence can legitimately be Inferred, of prejudice, see the case of Ellis v. Gt. and the jury whether It ought to be In- W. By Co., L. B. 9 G. P. 651 ; 43 L. J. 0. ferred,Met. By. Co. v. Jaclcson, aapra. F. 304, where four learned judges Where, on the other hand, there is con- thought there was nothing for tbe jury flJctlDg evidence on a question of fact, where the plaintiff swore he heard no the judge, whatever may be bis opinion whistle, and heard no porter call out, as to the value of the evidence, must because the fact of his not hearing was leave it to ttie jury, D. W. and W. By. only negative evidence; two. judges dis- Co. V. Slattery, L. B. 3 App. Cas. 1155. sented, and the judge St the trial had The duty of the judge is to declare neg- directed the jury that there was evl- atively that tbere Is no evidence to go to dence. the jury, but not afBrmatively that a cer- 26 DEFINITION AND DIVISION OF SUBJECT. have already done (/) what we mean by the term "proxi- mately producing injury." [24] In order to render a person liable for damage flowing from his negligence, it must be shown that the damage was the ordinary or probable consequence of the act (g). What is or is not a probable consequence of a particular act is of course not a matter of law, but of common sense. In this part of our definition of negligence the word "proximately" must be distinguished from the word " culpable." An act to be culpable, that is, to be a breach of legal duty, must, as we have seen, ante, p. 2, be such as a reasonably careful man would foresee might be produc- tive of injury ; and a person is not liable for an injury which he could not foresee (h). But a breach of duty to be " proximately " producing injury must be such that, whether the defendant could foresee the injury to be prob- able or not, the breach of duty is in fact the probable cause of the injury («). > (/) ^n. March Gas Co., L. B. 6 Ex. 67; 7 Ex. 96; 41 L. J. Ex. 46 (gas company laid defective pipe; gas-fitter went there with lighted candle) ; fsee Lannen v. Albany, Gas Light Co., 44 N, T. 459] ; — [Bailroad Co. t. Kelly, 91 Tenn. 705; 20 S. W. Bep. 312, (goods de- stroyed by ftre on account of defend- ant's failure and refusal to deliver them when demanded) ; Board Com'rs Sulli- van County V. Sissom, 2 Ind. App. 311 ; 28 N. O. Bep. 374 (plaintiff's horse was frightened by a log placed by the road supervlBOTS at the approach of a bridge from which plalntid was thrown and Injured] — Sofield v. Somers, 9 Ben. 526 (thief got at petroleum and dropped lighted match) ; Hill «. New Biver Co., 9 B. & 8. 303 (defendants threw up jet of water near to pit dug by contractors, in- to which a horse fell); Collins v. Mid. Level Commissioners, L. B. 4 O. P. 279 (defendants negligently constructed sluices ; plaintiff dammed them up ; third parties opened the dam) ; Harrison v. Gt. K. By. Co., 3 H. &.G. 231 (defendants made insufficient delph; commissioners did not cleanse river below ; water pen- ned back, and delph burst) ; Met. By. Co. V. Jackson, 3 App. Cas. 193 (defendants negligently permitted crowd to get into carriage ; plaintiff's thumb Injured at the next station) ; Lilley v. Doubleday, 7 Q. B. D. 510 (goods to be warehoused at A., warehoused at B., fire there, not too remote). 28 DEFINITION AND DIVISION OF SUBJECT. or the forces of nature (m) or distance of time (n) or space (o). Where the intervention of third parties takes place, it will be found stated in some text-booke that such inter- vention is no defense in any case, but it is apprehended that this is not the ground of the decisions cited in the note ; but the real ground of those decisions is that the defendants' acts and not the acts of third parties were the " proximate cause of the injury," but if the acts of such third parties had been the proximate cause of the injury the defendants would not have been liable (p). [26] Where the intervention is by the forces of nature, it should he observed that, where there is what is called an act of God, or an inevitable accident, the defendants will (m) Smith V, L. & S. W. By. Co., I* E. 5 O. P. 98 ; 6 O. P. 14 ; 40 L. J. 0. P. 21, Ex. Oh. (cut grass on raUway bank; wind blowing flie to cottage at a great dis- tance). Bailiffs ot Eomney Marsh v. Trinity House, L. E. 5 Ex. 208 {ship drifted by waves against plaintiff's sea wall) ; Sharp v. Powell, cmte, p. 26 (water from washing van frozen into Ice, upon which horse slipped) ; Moore V. Gadsden, 87 N. T. 84; 41 Amer. Rep. 352 (ice from melting snow on roo^ ; Evers v. Hndson Elver Co., 18 Hon, N. T. 144 (Ice nnremoved In early morn- ing) ; — [Smethnrst v. Proprietors I. 0. Church, 148 Mass. 261; 19 N. E. 387, (snow falling from roof upon plain- tiff's horse, causing it to run away.] — Sneesby v. L. & T. By. Co., L. B. 1. Q. B. D. 42; 45 L. J. Q. B. 1 C. A. (trucks sent down line so as to frighten cattle); Harris v. Mobbs, L. B. 3 Ex. D. 268 (van left at night by side of road frightened plaintiff's horse) ; Hobbs ;;. L. & S. W. By. Co., L. E. 10 Q. B. Ill (plaintiff and wife taken to wrong station ; held de- fendant liable for delay, bat not for cold caught by wife); MacMahon v. Field, 7 Q. B. D. 691 (defendant let his stables to another, plaintiff's horses turned out and caught cold, not too remote) ; Workman v. G. N . By. Co., 32 L. J. Q. B. 279 (land flooded to a greater extent than would have been) ; Walker v. 6oe. 4 H. & N. 350; 28 L. J. Ex. 184 (lock fell In from want of repair, not from want of notice by commis- sioners). Of this class also are those cases where cattle are injured by some- thing done by them In consequence of defendant's negligence In not repairing fences, &o., see Lawrence v. Jenkins, li. B. 8 Q. B. 274; 42 L. J. Q. B. 147 (eat- ing yew leaves) ; Firth v. Bowling Iron Co., L. E. 3 O. P. D. 264; 47 L. J. O. P. 358 (eating iron flllnga); and see these cases p0at, Ch. XL, s. 1, (n) Jackson v. Met. B. T. Co., ante, [p. 27]. (o) Smith v.Jj.&B.'W. By. Co., mpra; OrawfordsviUe v. Smith, 79 Ind. 308; 41 Amer. Eep. 612; Cosgrove v. New York By. Co., [87 N. T. 88] 41 Amer. Eep. 355 (no warning signal, horse beyond con- trolj got over line). — [" With regard to the spreading of negligent fires the decisions In the different States upon analogous statements of fact are not uniform ; but the weight of the author- ities, and the true doctrine Is, that proximity of cause has no necessary connection with contiguity of space or nearness of time." — Webb's Pollock on Torts, p. 48, n. citing numerous cases. See Cincinnati, N. O. & T. P. By. Co. V. Barker, 94 Ey. 71; 21 S. W. Eep, 317.] (p) See this question discussed pott. Oh. v.. Contributory Negligence. PROXIMATE CAUSK. 29 not be liable. In such cases there is not only such an in- tervention as may make the acts of the defendant remotely connected with the damage, but also such as render the acts of the defendant positively and entirely uncon- nected {q). The act of God is no defense except in cases where the defendant can show that the damage would equally have happened if he had done his duty (r), and care must be taken to see whether the accident is due to an act of God or to a codtemporaneous act of the defendant (s). If a storm, though unusual, is not unprecedented, it does not come within the category of acts of God (t). If the de- fendant can show that he has provided for every probable contingency he is not liable further, but may excuse him- self for not providing for something which is contrary to all previous experience (u). A curious case, where the injury was held not to be too remotely connected with the breach of duty, was the fol- lowing: A young child, of four and a half years, was found with its foot cut off, shortly after leaving home, on the railway, close to where a footpath crossed the line. There was no gate, although it was the defendants' statutable (9} G. W. Bj., of Canada e. Fswcett, («] Dixon v. Met. Board of Woik8,T 1 Uoo. F. O. N. S. 101 (stOTm of nnosnal Q. B. D. 418 (opening the water gates of violence breaking down railway line) ; a sewer in time of flood) ; Philadel- Alleghany Cltj t>. Zimmerman, 95 Fa. phla By. Oo. v. Anderson, [94 Fa. St. St. 287; 40 Amer. Bep. 649 (flag blown 351] 39 Am. Bep. 787 (washing down by down in storm). It is said In the lat- nnnsnal flood, of fanltlly-constmcted ter case that a " man is not liable for railway bank — [Lyon v. City of Logans- Injorles arising from a conjnnction of port, 9 Ind. App. B. 21 ; 35 N. £. Bep. bis own faults with circumstances of an 128,) the fact that snow had fallen nnprecedented nature." Bat In fact on an iron gutter crossing which had the injury was wholly caused by the prevloasly worn smooth and slippery storm. did not relieve the defendant of liability (r) See per Fry, J., In Nitro-Fhos- to a traveler who was Injured by a fall pkate Co. v. L. & St. E. Docks, L. B. 9 while walking over the crossing.] Ch. D. 613; City of Fhiladelpbia, v. 611- (<) Dixon v. Met. Board of Works, martin, 71 Fa. St. 140, per Agnew, J. ; tupra. Kelghley's Case,' 10 Bep. 130 a; see (u) Smith «.Masgrave,S.C.; Fletcher Withers v. North Kent By. Co., 27 L. J. v. Smith, 2 App. Cas. 781 ; 43 L. J; Ex. Ex. 417; and see nnmerons cases as to 70; BJyth v. Birmingham Waterworks, carrlew— see "Brown ou Carriers," 11 Ex. 781. and Bee pott, Ch. III. s. 8. 30 DEFINITION AND DIVISION OP SUBJECT. [27] duty to place one across the path. Had the gate been there the child might have turned 1)ack and not gone on the line, so that the omission to put the gate might be the cause of the child going there. It was not suggested that there was any contributory negligence. ,It was held that the child being found injured upon the line was sufficiently connected with the breach of duty in not patting up a gate to render defendant liable (as). It may be that the negligent act of the defendant would probably by itself, and unassisted, have produced the injury, but that, in point of fact, the defendant's act has received assistance towards producing the injury, or has set in motion other causes tending to produce the injury. In such cases the defendant will be liable. And even if the (Hefendant's act could not have done the injury, except it had received such assistance, or set in motion some other cause, yet it is apprehended the defendant would in many cases be held liable, although it is impossible to say in what cases he would be so held. If defendant's act were very much the most efficient cause he would be liable ; if some other cause were very much the most efficient he would not be liable; but where the defendant's act and some other cause contribute with some degree of equality towards the production of the injury, it would be, as a matter of fact, a great difficulty to decide whether the defendant is liable. Possibly it may be said that if the defendant's act contributed in a material degree he is liable. For instance, if the defendant leaves a cart unattended in the street, and a person passing strikes the horse, which runs over the plaintiff, the defendant would be liable, al- though the act of a third person was one immediate cause of the injury ; for the leaving the cart unattended was a negligent act, the probable consequence of which would be (a!) Williams o. G. W. By. Co., L. E. 9 lected any dnty, and there was nothing Ex. 157; 13 L. J. Ex. 1U5. In Singleton v. to show how the child got on the line. East. 0. Sy. Co., 7 O. B. N. S. 287, it did — [See Baltimore & P. B. E. v. Beaney, not appear that defendant h»d neg- 42Ud. 117.] PROXIMATE CAUSE. 31 [28] that the horse might start (^). The defendant's negli- gent act is, therefore, the proximate cause of the horse start- ing. In a recent case of Clark v. Chambers (z), it was held, that the act of the defendant being the primary cause of the injury, it was immaterial that the act of a stranger was the immediate cause. It is not quite clear what meaning is intended to be attached to the word primary; but from the whole of the judgment it appears that the same doc- trine as stated above is intended to be laid down, viz., that when a negligent act is done which will probably lead to injury, and which does lead to it, it is immaterial through what probable steps it passes. It should, however, be ob- served that Clark v. Chambers was one of those cases in which the defendant is dealing with a dangerous thing, of whieh he is bound to take especial care ; but in truth that is the very reason why his not taking care is held to be the chief cause of the mischief. If I let a good-tempered dog loose in the street, and a stranger strikes him and is bitten, the bite is not a probable consequence of my act ; but if the dog were bad-tempered, the bite would be the probable consequence (a). (y) See Lynch e. Nnidin, 1 Q. B. 29, s^anger moTed the barrier on to the where a child got into a cart standing at footpath) . a door unwatched ; and midge v. Good- (a) Mangan v. Atterton, 4 H. & C. win, S O. & F. 192, where a passer-by 388 (machine left open In market-place, Btmck a horse. played with by boy, is practically over- (z) Clark v. Chambers, Ii. B. 3 Q. B. rnled by the above case of Clark «. D. 327; li. J. 439 (defendant pnt spikes Chambers), upon a barrier across roadway, and a Proziiaate and Bemote Cause. — Whoever does a wrongf al act is answerable for all the conseqaences that may ensne in the ordinary and natural conrse of events, though sach conseqnences be immediately and directly brought about by intervening causes, if such intervening causes were set in motion by the original wrong-doer. — 2 Thompson on Neg. 1084. " The proximate cause of an injury may, In general, be stated to be that act or omission which immediately causes, or fails to prevent an injury; an act or omission occurring or concurring with another, which, had it not happened, the injury would not have been inflicted, notwith- standing the latter." — Deming r. Storage Co., 90 Tenn. 353; 17 S. W. 32 DEFINITION AND DIVISION OF SUBJECT. [29] There is also a class of cases where it has been sought to recover damages from the defendant who has by his acts [30] neglected a duty which he owed to a third Eep. 89. See ante, p. 26; also Andrews v. Mason IClty & Ft. D. B. Co., 77. la,, 669; 42 N. W. Eep. 613; Putnam v. New York C. & H. R. Co., 47 Hun, 439; Banting v. Hogsett, 139 Pa. St. 363; 21 S. W. Bep. 31; id., 139 Pa. St. 363; 21 St. Bep. 34; Clyde v. Blclimond & J). B. Co., 69 Fed. Bep. 394; Enapp v. Sioux City & P. By. Co., 66 la. 91; 60 Am. Bep. 569; West V. Ward, 77 la. 323; 42 N. W. Bep. 309; Ahern v. Oregon, T. & T. Co., 24 Ore. 276; 33 Pac. Bep. 403; 35 Pac. Bep. 649; Byan v. Miller, 12 Daly, 17; JacksonvUle, T. & K. W. By. Co. v. Peninsular L. T. & M. Co., 27 Fla. 167; 9 So. Bep. 661; PoweES v. Thayer Lumber Co., 92 Mich. 633; 62 N. W. Eep. 937; La Duke o. Tp. of Exeter, 97 Mich. 460; 56 N. W. Eep. 851; McEeller v. Tp. of Monitor, 78 Mich. 485; 44 N. W. Bep. 412. Illustrations. — Fire fell from a locomotive on defendant's road upon a horse attached to a wagon in the street below upon the driver's hand. The horse became frightened and ran away. The driver attempted to drive him against the curbstone to arrest Ms progress. The wagon passed over the curbstone, threw the driver out and the plaintiff, who was on the sidewalk, was run over and injured. In an action to recover for the injuries, it was held not error to charge that if the Are fell through the negligence of defendant, causing the horse to become unmanageable, and run against the defendant inflicting the injury, defendant was liable. — Lowrey v. Manhattan Railway Co., 99 N. X. 168. Defendant intentionally directed a stream of water from a hose against a team of horses fastened to a post in the street in front of his premises. The horses, frightened thereby, broke loose, ran away, and collided with plaintiff's team. Defendant was held liable for injury to the latter. Forney v. Gleldmacher, 76 Mo. 113; 42 Am. Bep. 388. So where a team of horses frightened by a locomotive whistle, wan- tonly sounded, ran away and collided with plaintiff's horse, causing its death, these facts were held to constitute a good cause of action against the railroad company. — Billman v. Indianapolis R. B. Co., 76 Ind. 166. Both the occasional and the continuous blowing of locomotive whistles have been repeatedly decided by juries to be the immediate cause of injury to horses which ran away through fright from the noise. — See Trittso. NewTork and N. E. B. Co., 62 Conn. 603; 26 At. Bep. 347; Louisville, M. A. & C. Ry. Co. o. Stanger, 7 Ind. App. 179; 32 N. E. Eep. 209; St. Louis, I. M. & S. By. Co. o. Eoberts, 66 A. B. 387; 19 S. W. Eep. 1065. Where a municipal corporation left a dangerous and nnfenced ex- cavation in a public street, it was held an action might be maintained against it by the owner of the horse carefully driven upon the street, PROXIMATE CAUSE. 33 party, or committed a breach of contract with a third party, and the [31] effect of such neglect of duty or breach of contract has been to injure the plaintiff, and it has been which took fright, ran away, fell into the excavation and was MUed. — City of Crawfordsville o. Smith, 79 Ind. 308; 41 Am. Rep. 612. It was left to the jury in another case to determine whether the corporation was negligent in constracting an embankment in not pro- viding it with a sufficient gnard, where plaintiff's horse took fright, overturned his buggy, and threw it down the embankment of the street on which he was driving. — City of Atlanta v. Wilson, 59 Ga. 455; 27 Am. Bep. 396. The town was held liable for an injury resulting from the striking of a post in the street by plaintiff's wagon drawn by a frightened team, in Town of Fowler v. Linqnlst (Ind.), 33 N. E. Eep. 133. And where A. was injured by a horse driven by B. on the highway, frightened by a heap of snow and ice wrongfully made on the highway by C, it was held A. could maintain an action against C. therefor (Lee v. Union B. Co., 12 B. I. 383; 34 Am. Bep. 668), or against the town where a nuisance was placed there, and permitted to remain afterreason- able notice.— Bennett v. Flfleld, 13 R. I. 139. But a town has been held not liable for damages sustained by a trav- eler from the fright of his horse at meeting cows in the road with boards on their horns, and also from a defect in the way, the combined action of both causes operating to produce the accident. — Perkins v. Inhabitants of Payette, 68 Me. 152; 28 Am. Eep. 84. See 2 Thomp. Neg., pp. 1083, 1086, where it is said that in Maine, Massachusetts and Wisconsin, the rule is that where the injury is occasioned by a defect in the highway and some other cause, the town is not liable, while in New Hampshire, Illinois, Kansas, Connecticut and Pennsylvania, a different doctrine prevails. {In Township of Westmahony v. Watson, S. C. Pa. 21 Bep. 733, where a team of horses being frightened by an obstrnction, negligently allowed to remain upon a public road by a township, ran away and were found dead the next day upon a railroad track more than five mUes from the scene of the frightening, having been killed by a locomotive, it was held the negligence of the township was too remote a cause of the death of the horses to render the township liable therefor.) Where plaintiffs horses being frightened by a steam engine placed in a public street, ran away and their fright was increased by the jolting of the wagon over afoot-crossing and the consequent rattling of the staves, with which the wagon was loaded, and the plaintiff jumped from the wagon and was injured, it was held that he might recover. — Turner v, Buchanan, 82 Irid. 147; 42 Am, Eep. 485. Where plaintiff while walking in a path on an embankment by the side 3 34 DEFINITION AND DIVISION OF SUBJECT. held that the [32] act is too remotely connected with the injury (b); but as has been already stated, if he owes a (b) Cattle V. Stockton Waterworks qnence of the wet plaintiff could not Co., L. B. 10 Q. B. 4.'i3; 44 L. J. Q. B. 139. make a profit. Held, that whether K. (The defendants negligently laid a pipe conld sne or not for himself, or as a so that water leaked out npon K.'s land, trnstee for plaintiff, plaintiff could not K. employed plaintiff to dig a cntting sne.) through the land at a price. In conse- of a railroad track Is injured by a cow negligently struck by a train and so thrown as to strike the ground and rebound against plaintifi, the injury is the proixmate result of the defendant company's negligence. — Alabama, 6. S. B. Co. V. Chapman, 80 Ala. 616; 2 So. Bep. 738, citing East Tenn. V. & G. R. Co. V. Lockhart, 79 Ala. 315; Alabama, 6. S. B. Co. v. Arnold, 80 Ala. 6G0; 2 So. Bep. 337. Where plaintiff warned defendant's agent of the danger of his endeav- oring to alone carry a sewing machine without taking off the top. Dis- regarding this warning the agent raised the machine, attempting to shoulder it, the top fell, struck the wall and rebounded to the floor where it broke into pieces, and a flying fragment struck and destroyed one of plaintiff's eyes. Held, that the negligence of the agent was the proximate cause of the injury. — White Sewing Machine Co. v. Bichter, 2 Ind. App. 331;28N.E. Bep. 116; Where defendant negligently ran a train over a line of hose which plaintiff was using to extinguish the flre in its factory, it was held that the severing of the hose was the proximate cause of the destruction of the building.— Metallic C. C. Co. v. Fitchburg E. Co., 109 Mass. 277. But where there are several proximate and efficient causes contributing to an injury, it cannot necessarily be attributed to one, without whose operation it would not have happened. As where a blind horse became frightened and unmanageable, and owing to a pile of ashes left in the street, in passing a loaded wagon, collided with a hydrant nozzle, not improperly placed, but projecting four inches from the gutter, it was held the owner conld not recover of the city for the consequent Injury to him- self and sleigh without proof that the ash pile caused the accident. Eing V. Cohoes, 77 N. Y. 88, reversing 13 Hun, 76. See Board Com'rs. Boone County v. Mutchler, 137 Ind. 140; 36 N. E. Bep. 584; Cline v. Crescent City B. Co., 43 La. Ann. 327; 9 So. Bep. 122; Hampson v. Tay- lor, 15 B. I. 83; 23 Atl. Bep. 732. It is a rule, however, that where two proximate causes produce an injury, — one arising from accident and the other from negligence, the negligent party is alone liable in damages. Board Com'rs. Parke County V. Sappenfleld, 6 Ind. App. 577; 33 N. E. Bep. 1012. See Nashua I. & S. Co. V. Worcester & N. B. Co., 62 N. H. 159. Gemote cause. — The negligence must be the proximate and not the remote cause of the injury. In the case of Bank of Commerce v, Ginoc- REMOTE CAUSE. 35 duty towards the [33] plaintiff ( although his contract may be with a third party), he is then brought, as it were, chlo (27 Mo. App. 661), the court said: " The rule is, that a man shall not be held to pay damages becanse he has failed to gnard the world against those consequences of his acts or omissions which are contrary to ordinary experience and which ordinary care wonld not anticipate. The rule is fonnded upon two reasons. The one has reference to the infirmity and imperfection of all hnman thongbt and action, toward which the law must extend some indulgence, the other rests upon the consideration that if the law were to make men answerable for the hap- pening of such remote events, litigation would be endless." See Swing V. Kttsburgh, etc., K. Co., 23 Pa. St. 340; 23 Atl. Eep.340; Smith v. French, 83 Me. 108; 21 Atl. Bep. 739; Richmond & D. B. Co. «. Mofiett, 88 Va. 785; 14 S. E. Bep. 370; Childrey o. City of Huntington, 34 W. Va. 457; 12 S. E. Rep. 536; West Mahanoy t>. Watson, 112 Pa. St. 574; 56 Am. Rep. 336; Pigott t7. Lilly, 55 Mich. 150; Zopfl«. Postal T. C. Co., 60 Fed. Rep. 987; 9 C. C. A. Rep. 308; Beall v. Tp. of Athens, 81 Mich. 536; 45 N. W. Rep. 1014; Pryor v. Louisville & N. B. Co., 90 Ala. 32; 8 So. Bep. 55; Sowles V. Moore, 65 Vt. 322; 26 Atl. Rep. 629; City of Albany v. Water- roUer T. & R. Co., 76 Hun, 136; 27 N. Y. S. Rep. 848; Mueller v. Milwau- kee St. Ry. Co., 86 Wis. 340; 56 N. W. Rep. 914; Texas & P. Ry. Co. v. Doherty, 4 Tex. App. 231, 15 S. W. Rep. 44; Lynch v. Northern P. R. Co., 84 Wis. 348 ; 54 N. W. Rep. 610; Brown v. Laurens County, 38 S. C. 282; 17 S. E. Bep. 21, distinguishing Acker v. Anderson Co., 20 S. C. 498; Stacy V. Knickerbocker Ice Co., 84 Wis. 614 ; 54 N. W. Bep. 1091 ; Johnson V. Northwestern T. E. Co., 54 Minn. 37; 55 N. W. Bep. 829; Chicago, St. P., & M. O. By. Co. o. Elliott, 65 Fed. Bep. 949; Hembling v. City of Grand Bapids, 99 Mich. 292; 58 N. W. Bep. 310; Benson v. Central Pac. B. Co.,98Cal. 45;32Pac. Bep. 809; 33 Pac. Bep. 206; Quill ??. New York C. & H. B. B. Co., 11 N. Y. S. Bep. 80; Cross v. California St. C. By. Co., 102 Cal. 313; 36 Pac. Bep. 673; Mason o. Spartanburg County, 40 S. C. 390; 19 S. E. Bep. 15; Louisville & N. B. Co. v. Kelsey, 89 Ala. 287; 7 So. Bep. 648; Herr v. City of Lebanon, 149 Pa. St. 222; 24 Atl. Bep. 207; 30 W. N. C. 248; Barton v. Pepin Co. Ag. Soc, 83 Wis. 19; 52 N. W. Bep. 1129; Caron o. City of Green Bay, 72 Wis. 118; 39 N. W. Bep. 134; Kelly V. Manayunk & B. I. P. &By. Co. (Pa. St.), 12 Atl. Bep. 598; Merritt v. Fitzglbbons, 102 N. Y. 362; De Maby v. Morgan, L. & T. B. & S. S. Co., 45 La. Ann. 1329; 14 So. Rep. 61 ; KetKer v. Borough of Hammelstown, 151 Pa. St. 304; 24 Atl. Rep. 1060. Where a passenger on a railway train, being directed to change cars at a way station entered another car, but was ordered out by an employe as the train was not ready, stood a short time on the platform of the car and then stepped to a neighboring track, and while waiting there was injured by another train, it was held that his expulsion was not the proximate cause of the injury.— Henry o. St. Louis Ry. Co., 76 Mo. 288; 36 DEFINITION AND DIVISION OF SUBJECT. into connection with the [34] plaintiff, and his act is not too remotely connected with the injury (c). (c) Levy v. Langildge, 4 M. & W. 337; Lnmley v. 6ye, 2 E. & B. 216; Heaven v. Fender; see these cases ante. 48 Am. Bep. 762. See McClelland v. The Loalsville, etc., B. Co., 94 Ind. 276; Lewis v. The Flint, etc., By. Co., 64 Mich. 128; 23 Am. L. Beg. 604 (citing many cases, opinion by Cooley, J.). A railway company by its train unlawfnlly obstrncted a, village street, and S. therefore walked around the rear of the train, entered another street and there having selected one of the several rontes to her home slipped on some ice, fell and sustained serions Injary. The same com- pany had placed the ice there in the process of clearing its track, which occupied a part of the street. It was held that though the proximate cause of the injary was the placing the ice in the street, if the railway company was not in fault In so placing the ice, it was not liable for the injury caused by the fall.— Pittsburg, etc., By. Co. v. Staley, 41 Ohio St. 118; see Jackson v. N. C. & St. L. E. Co.; 13 Lea, 491; 19 C. L. J. 491; City of Lancaster v. Kissinger, 1 Pa. S. C. 250; Kistner v. City of Indianapolis, 100 Ind. 210; Stanton o. Louisville & N. B. Co., 91 Ala. 382; 8 So. Bep. 798; Selleck v. Lake Shore & M. S. By. Co., 58 Mich. 195; Brown v. Wabash, St. L., etc., By. Co., 20 Mo. App. 222. A passenger who was carried a short distance past the station by defendant's train was misinformed by the conductor as to the position of the train. He soon discovered that he was south of a cross-road he meant to take in going home instead of north of it as he was told by the conductor. He was familiar with the neighborhood and knew that where the road crossed the track there was a cattle-guard similar to one over which he had intended to cross. In crossing this cattle-guard he fell and was injured. Meld, that defendant's negligence in misinforming him was not the proximate cause of the injury. — Lewis v. Flint & P. M. By. Co., 54 Mich. 55; 62 Am. Bep. 780. Where plaintiff went off of a defective highway into an adjoining field and was there injured, the defect In the highway was held to be the re- mote cause of the injury. —Tisdale v. Norton, 8 Mete. 388; see Dubuque Wood, etc., Ass. v. Dubuque, 30 la. 176; Daniels v. Ballantine, 23 Ohio St. 532; McClary v. Sioux City, etc., B. Co., 3 Neb. 44; Scheffer v. B. B. Co., 105 U. S. 249. So, where a construction company under a contract with the city to make Improvements, so obstructed the street that only a narrow opening was left in the material and plaintiff's minor son passed through this openiug, stepped in front of a street car and was killed : it was held the acts of the construction company, and the city were but the remote cause of the Injury. — Stanley v. Union D^pot B. Co., 114 Mo. 606; 21 S. W. Bep. 832. Where plaintiff, who was engaged in carrying passengers from a hotel BEMOTE CAUSE. 37 [35] It is no defense that the injury which has, in fact, happened, is by reason of other circumstances greater in de- to defendant's depot, was compelled to stop and wait for a train which obstrncted the street for more than five minutes, in yiolation of the stat- ute to move on or divide and let him pass, when a passenger train came by and the blowing of the steam and noise of the cars frightened his horses and they ran away and he was seriously injured, it was held that no negligence being shown in the management of the passenger train, he could not recover, as the statutory negligence in allowing the freight train to obstruct the street was not the proximate cause of the injury. — SeUick V. Lake Shore & M. S. E. C6., 58 Mich. 195. Where plaintifi had been safely driven past a pile of stones and a hole in the road, when his horse became frightened upon seeing a donkey, turned, broke the axle of his baggy, and ran back, dragging the broken axle which caught in the hole, upset the buggy and Injured him, it was held, that the township was not liable. The court said " But for the fright of the horse, and the driver's loss of control, they would have continued their journey, and of course the accident would not have hap- pened." — Schaeffer v. Tp. of Jackson, 150 Pa. St. 145; 24 Alt. Eep. 629. Where a child of about four years of age living near a railroad, strayed across the tracks to the side opposite his house. Then, on account of defendant's failure to fence its tracks, as it was required by statute, the child wandered into the adjoining land where it fell into a ditch contain- ing water and was Injured. Held, that the duty of the railroad company did not extend further than to protect the plaintifi from injury while on its own premi-ses. — Morressey o. Providence & W. R. Co., IS R. I. 271; 3 Atl. Rep. 10. Citing Smith o. Tripp, 13 R. 1. 152. See Grordon v. Chicago, S. F. & C. Ey. Co., 44 Mo. App. 201. Intervention of Third Person. — If the negligence of defendant would not have caused the injury, but for the intervening negligence of a third person, the defendant wiU not be liable. — Carter v. Towne, 103 Mass. 407; Hofnagle v. E. R. Co., 55 N. Y. 608; Parker v. Cohoes, 10 Hun, 531 ; Otten V. Cohen, 1 N. T. S. Eep. 430; Davis v. Williams, 4 Ind. App. 487; 31 N. C Sep. 204; Lee v. Vacuum Oil Co., 7 N. Y. S. Eep. 426; Mars V. Delaware & H. C. Co., 64 Hun, 625; 8 N. Y. S. Rep. 107; Noblesville G. & L Co. V. Loehr, 124 Ind. 79; 24 N. E. Rep. 579; Mclntire v. Rob- erts, 149 Mass. 450; 22 N. E. Rep. 13. To illustrate: Where some un- known third party unlawfully placed upon the railroad track a "push car," which had been left near by employes of defendant, causing the accident by which plaintifi was injured, it was said by the court: "While the company is bound to use great care in order to keep its track clear for the safety of its passengers and employes, it is not responsible for the unlawful act of some third party in placing obstructions upon the track without its knowledge or consent, unless it be in a case where it had by its conduct done some act which it might reasonably have antid- 38 DEFINITION AND DIVISION OP SUBJECT. [36] gree than would probably happen (d). For instance, if a man negligently sets fire to his own house it is not probable (d) See Smith v. L. & S. W. Ey. Co. in Excfi. Ch., supra. See also post. Contri- butory Negligence, Ch. V. pated would lead to the placing of the obstruction upon the track." — Harris v. Union P. E. Co., 13 Fed. Rep. 591. But when the negligence of A. and B. combined result in injury to C, the concurrent negllgepce of B. will be no defense to an action against A. — Eaton o. Boston, etc., R. Co., 11 Allen, 600; Martin ». North Star Iron Works, 31 Minn. 407; Delaware, etc., E. Co. v. Salmon, 39 N. J. L. 299; Atkinson v. Goodrich Transportation Co., 60 Wis. 141; Hunt v. Missouri E. Co., 14 Mo. App. 160; McClure v. City of Sparta, 84 Wis. 269; 64 N. W. Rep. 337; McMahon v. Davidson, 12 Minn. 357; PhiUips v, De Wald, 79 Ga. 732; 7 S. E. Rep. 151; Rompillon v. Abbott, 1 N. Y. S. Rep. 662; Noblesville G. & I. Co. v. Teter, 1 Ind. App. 322; 27 N. E. Rep. 635; Lane v. Atlantic Works, 111 Mass. 136, Johnson ». Northwestern Tel. Ex. Co. (48 Minn. 433), 51 N. W. Eep. 225; Murdocko. Walker, 43 lU. App. 590. Thus, where a village sidewalk was of an unsafe height and without guards, a person negligently pushed off by a third person and injured may maintain an action against the village. — Village of Carterville v. Cook, 129 lU. 152; 22 N. E. Rep, 14. But where a person was willfully seized and thrown by another into an excavation in the street, the town is not liable for his injury. — Alexander v. Town of New Castle, 115 Ind. 51; 17N. B. Rep. 200. C. may hold either or both liable. — Johnson v. Chicago, etc., R. Co., •SI Minn. 67; Lake ». Milliken, 62 Me. 240; 16 Am. Eep. 456; Elcker v. Freeman, 50 N. H. 420; 9 Am. Eep. 267; Burrell Tp. o. Uncapher, 117 Pa. 353; 11 Atl. Eep. 620, see note; Wilder v. Stanley, 65 Vt. 145; 26 Atl. Eep. 189. Where defendant left an open barrel of flsh brine in a city street, and another person without his knowledge or authority emptied the barrel into the street, and the plaintiff's cow lawfully running at large in the street drank the brine and was killed, defendant was held liable. — Henry 1). pennis, 93 Ind. 452, a case said to be wrongly decided, 47 Am. Eep. 381. Neither does the intervening negligence of a third person relieve the first wrong-doer from liability, if such intervening act was one which would ordinarily be expected to flow from his negligence. — Fastene v. Adams, 49 Cal. 87; Griggs v. Fleckensteln, 14 Minn. 81; Lane v. Atlantic Works, 111 Mass. 140; Weick u. Lander, 75 111. 93; Howe v. Ohmart, 7 Ind. App. 32; 33 N. E. Rep. 466. Two boys, one aged ten and the other twelve years, purchased ot a dealer cartridges for use in a toy pistol and were instructed by the dealer how to use them. It was against the statute to sell pistol cartridges to PROXIMATE CAUSE CONTEIBUTORY NEGLIGENCE. 39 [37] that he will burn down the whole street, yet he will be liable for the injury done to the house at the far end of it ; minors. The dealer knew of the dangeroas character of the articles, and that the boys were nnflt to be intrusted with them. Another boy six years old shortly afterwards picked np a toy pistol containing one of the cartridges and discharged it, killing one of the boys who bonght the car- tridges. It was held that the dealer was liable for the death of the boy killed. — Binford v. Johnston, 82Ind. 426; 42 Am. Rep. 509. Intervention of PlalntUt. — The act of the person injured may inter- vene, and tbis may give rise to the question whether he is guilty of con- tributory negligence, a subject which will be treated of hereafter. But where the negligence of the defendant places the plaintiff in a posi- tion of peril and acting under the sudden impulse of the moment he attempts to escape from it, and in doing so incurs danger which he might otherwise have avoided, he Is not guilty of contributory negligence snch as will defeat an action. — Smith o. St. Paul, etc., Ey. Co., 30 Minn. 169; Pennsylvania, etc.. It. Co. v. Werner, 89 Pa. St. 59; Iron E. Co. V. Mowery, 36 Ohio St. 418; 38 Am. Eep. 597; Wilson o. Northern Pac. E. Co., 26 Minn. 278; 47 Am. Eep. 410; Collins v. Decker, 20 Hun, 173; Noble v. St. Joseph & B. H. St. Ey. Co., 9,8 Mich. 249; 57 N. W. Eep. 126; Lowery 17. Manhattan R. Co., 99 N. Y. 158; 1 N. B. Eep. 609, supra, p. 32; La Prelle v. Fordyce, 4 Tex. Civ. App. 391; 23 S. W. Rep. 453; Miner v. Conn. River R. Co., 153 Mass. 308; 26 N. E. Eep- 995 ; BischofE v. People's Ey. Co., 121 Mo. 216 ; 25 S. W. Eep. 908 ; Buchan- an V. West Jersey E. Co., 52 N. J. L. 265; 19 Atl. Eep. 224; Grand Eapids & I. E. Co. ». Cox, 8 Ind. App. 29 ; 35 N. E. Sep. 183; QuUl v. New Tork Cent. & H. B. R. Co., 11 N. Y. S. Rep. 80; VaUo v. U. S. Exp. Co., 147 Pa. St. 404; 23 Atl. Eep. 594; 29 W. N. C. 423; Ladd v. Foster, 31 Fed. Eep. 827; Pnrcell «. St. Paul City By. Co., 48 Minn. 134; 50 N, W. Eep. 1034 ; Town of Prescott v. Connell, 22 Can. S. C. Rep. 147. And though the Injury may be increased by the unskillful treatment of the physician or surgeon whom plaintiff has employed, if he has exer- cised reasonable care in selecting such physician or surgeon, he may recover to the full extent of the actual damage incurred. — Loeser v. Humphrey, 41 Ohio St. 378; Collins v. Council BlufEs, 32 la. 324; Rice v. Des Moines, 40 la. 638; Pullman Palace Car Co., v. Bluhm, 109 111. 20; St. Louis & S. F. Ey. Co. e. Doyle (Tex. Civ. App.), 25 S. W. Rep, 461. Such a case differs from one of malpractice where the negligence of physician and patient concur. — Brown ». Marshall, 47 Mich. 576. Nor does the fact that plaintiff was engaged in violating the law at the time of the injury bar his right of action, unless such violation was the proximate and efficient cause of the injury, as for example, driving on the wrong side of the road. — SpofEord o. Harlow, 3 Allen, 176. Smoking a cigar in the street in violation of a municipal ordinance. — Baker v. Portland, 58 Me. 199. 40 DEFINITION ANO DIVISION OF SUBJECT. [38] but if a lighted stick flew into an adjoining street and there frightened the plaintiff's horse, he would not beliable Placing a wagon in the street lor the purpose of unloading It in such a position as to violate a city ordinance. — Steele v. Bnrkhardt, 104 Mass. 69. Traveling on Sunday.— Phila., etc., E. Co. v. Phila. Tow Boat Co., 23 How. 209; Piolett ». Simmers, 106 Pa. St. 95; Plats ». Cohoes, 89 N. Y. 219 ; Baldwin v. Barney, 12 R. I. 392; Knowlton v. Milwaukee City Ry. Co., 59 Wis. 278; Schmid v. Humphrey, 48 la. 652; 30 Am. Eep. 414; Sewelio. Webster, 69 N. H. 586; Wentworth v. Jefferson, 60 N. H. 158; Opsahl V. Judd, 30 Minn. 126; Delaware L. & W. R. Co. v. Trautwein, 62 N. J. h. 169; 19 Atl. Eep. 178. Though it has been held in some of the New England States that an action would be thereby barred. — Davis ». Sommerville, 128 Mass. 694; 36 Am. Rep. 399; Wallace v. Merrimack River Nav., etc., Co., 134 Mass. 95; Bucher v. Fitchburg R. Co., 131 Mass. 156; 41 Am. Rep. 216; D&yv. Highland St. R. Co., 135 Mass. 113; 46 Am. Rep. 447; Johnson V. Irasburg, 47 Vt. 28; 19 Am. Rep. Ill; Holcomb v. Danby, 51 Vt. 438; Hinckley v. Penobscot, 42 Me. 89; see Davidson o. Portland, 69 Me. 116; 31 Am. Rep. 253; Bucher v. Cheshire E. Co., 8 Sup. Ct. Rep. 974. Unless the defendant's conduct amounts to willfulness or a reckless disregard of another's rights. — Wallace v. Merrimack Riv. Nav., etc., Co., 134 Mass. 95; Banks v. Highland St. Ry. Co., 136 Mass. 486. Of Defendant. — The negligence of the defendant may Intervene and he will be liable for the injuries which result therefrom or the damages occasioned thereby. In Bostwick v. Minneapolis & P. Ry. Co. (2 N. D. 440; 51 N. W. Eep. 781), the court stated the rule: " Where a person has been negligent and another person knowing of such negligence fails to use ordinary care to prevent an injury which the antecedent negligence rendered possible and the injury follows by reason of such failure, the negligence of the second person is the sole proximate cause of the injury." See Clark v. Wilmington & W. R. Co., 109 N. C. 430; 14 S. E- Rep. 43; Cincinnati, H. & D. R. Co. v. Kassen, 49 Ohio St. 230; 31 N. C. Rep. 282; Central Pass. Ry. Co. ». Rose (Ky.), 22 S. W. Rep. 746; Will- iams V. Edmunds, 76 Mich. 92; 42 N. W. Eep. 634. As where a child on the track was discovered by a car driver in time to have avoided the accident and injury to the child which followed, it was held that the child's negligence would not defeat its recovering damages. — Huerzeler v. Central Cross Town E. Co., 20 N. T. S. Eep. 676; 1 Misc. Rep. 136., See Newport News & M. V. Co. v. Howe, 62 Fed. Eep. 362; 3C. C. A. 121; 6 U. S. App. 172. And where the falling of a ship berth and the screams of passengers paralyzed plaintifC with fear, so that she "was rendered helpless, and in this condition she was removed from her berth and being placed on her feet was thrown by the rolling of the ship against an open door and was PROXIMATE CAUSE — CONTEIBUTORr NEGLIGENCE. 41 for the consequent injury as being too remote. Where, however, the injury done by the negligence of the defendant picked up and put in a wet place where she remained until the berths were repaired and then put back in her berth, the ship company was held liable for the injuries occasioned by the fall of the berth and the subsequent wetting. — Smith v. British, etc., Steam Packet Co., 86 N. Y. 408. And where defendant, an unlicensed liquor seller, on Sunday, in viola- tion of the statute, furnished D. intoxicating liquor to drink upon which D. became intoxicated and unconscious, and the defendant put D. in this condition into his vehicle drawn by a gentle horse which he had borrowed of the plaintiff, and by reason of his intoxication and inability to manage the horse, it ran away and was killed, it was held that an action would lie for its value. — Dunlap 77. Wagner, 8S Ind. 529; 41 Am. Bep. 42. In an action to recover damages' to the estate of plalntifE's decedent caused by selling liquors to him by which he became intoxicated and expelling him from a saloon late at night, thereby causing his death from exposure, it was held that instructions that the purchase and drinking of the liquor by the deceased constituted contributory negligence which would bar a recovery, were erroneous. — Weymire o. Wolf, 52 la. 533. See Schfoeder v. Crawford, 94 lU. 367; 34 Am. Bep. 236, where an in- toxicated person going home at night had to cross a railroad track and next morning he was found on the track killed by being run over by the cars. It was held that the intoxication was the proximate cause of his death, and the owner of the premises where the liquor was sold was liable under the Civil Damage Act to his widow for injury to her means of support. — Emory v. Addis, 71 HI. 273, is cited to the same efEect. But where the intoxicated person was assaulted and killed by a third person, it was held that the seller was not liable in damages to his widow for his death. — Shugart v. Egan, 83 111. 66; 25 Am. Bep. 359. Intervention of the Forces of Nature. — Examples of this kind are found in cases where the plaintifl has suffered from exposure to the weather, the negligence of the defendant being held to be the proximate cause of the resulting injuries. Where the axle of plaintiff's carriage broke by reason of a defect In the road and be was dragged from the dash board, and he procured another carriage and drove several miles to his home, during which time he was exposed to the cold and rain, the exposure was held to be the proximate result of the accident. — Ehrgott v. Mayor, etc.. New York, 96 N. Y, 264. So where railroad passengers have been carried beyond the station or being wrongfully ejected have incurred illness from such exposure and exertion in the endeavor to secure a place of safety, the defendant has been held responsible therefor. — Cincinnati, etc., B. Co. v. Eaton, 94 Ind. 474 ; I. & G. N. By. Co. v. Terry, 62 Tex. 380. See Welghtman v, Louisville, N. O. & T. By. Co., 70 Miss. 563; 12 So. Bepj 686. 42 DEFINITION AND DIVISION OF SUBJECT. is separable from that arising from another cause, so that it can be fairly seen how much of the injury is due to the The same principle has been announced in other cases. — Drake v. Kiely, 93 Pa. St. 492; Williams v. Vanderbilt, 28 N. Y. 217; Bvansvllle, etc.> E. Co. V. Kyte, 6 Ind. App. 62 ; 32 N. B. Rep. 1134. But see Waterman ». Chicago & A. K. Co., 82 Wis. 613; 52 N. W. Eep. 247, 1186. Where a laborer employed in the construction of a railroad Is sent by his employer to a high mountain pass where without suitable board he " was compelled to sleep on the cold, wet, and frozen ground, without anything under him except damp branches of pine or spruce trees, and without sufficient blankets or bedclothes to cover him, and protect him from the cold, whereby plaintiff was taken dangerously sick from such exposure," his complaint is good on demurrer.— Clifford v. Denver, S. P. & P. K. Co., 9 Colo. 333; 12 Pac. Eep. 219. Where a husband and wife, who was pregnant, by misdirection of the railway company's servants got off at the wrong station, and the walk- ing to a place of safety brought on a miscarriage, the company was held liable for the injuries resulting from such miscarriage. — Brown v. Chicago, etc., E. Co., 54 Wis. 342. So also where plaintiff, a married woman who was pregnant, was riding with her brother and when crossing a defective bridge in the public highway the team broke through the bridge and plaintifi jumped from the wagon and assisted her brother in the attempt to extricate the team, and tailing in this at the request of her brother she ran some distance to ob- tain more assistance, and the result of her fright and exertions was a miscarriage, the damages sustained by the miscarriage were held the proximate result of defendant's negligence. — Oliver v. Town of La Valle, 36 Wis. 592. But see Eenner v. Canfleld, 36 Minn. 90; 30 N. W. Eep. 435; Lehman v. Brooklyn City E. Co., 47 Hun, 856. Where decedent was rendered intoxicated and expelled from a saloon late at night and death resulted from the exposure to the weather, de- fendant was held liable. — Weymire v. Wolf, 52 la. 538. ' A different rule has been laid down by some courts. In Pullman Palace Car v. Barker, 4 Col. 344 ; 34 Am. Eep. 89, the car in which plaintiff was sleeping was burned through the negligence of defendant's servants. The burning was so rapid that she had not time to properly clothe herself and left It in her stocking feet. In doing so she was compelled to stand for a short time on the platform of another car, and caught a severe cold which caused a cessation of her menses and resulted in a long period of illness. The illness was held not the prox- imate result of defendant's negligence. In Francis v. St. Louis Transfer Co., (3 Mo. App. 1), ayonng unmarried lady took an omnibus and was let down within a mile of her house and had to walk home on a dry cold day, and contracted a cold, such as per- manently Injured her health. It was held that the injury was too remote PKOXIMATE CAUSE TENDENCY OF DISEASE. , 43 defendant's negligence and how much to another cause, the damages may be apportioned (e). (e) Workman v. G. N. Ey. Co., 32 L. L. & St. K. Docks, L. R. 9 Oh. D. 503 J. Q. B. 279 (plaintiff's land wonld bave (effect of defendant's embankment been flooded to a certain extent, bat was Increased by act of God). See post, so to a greater extent by defendant's Damages, embankment) ; Nitro-Phosphate Co. v. to warrant a recovery for the suffering, loss of employment and perma- nent injury to the health of plalntlfi, and that her recovery could only be for the reasonable cost of the conveyance home and her expense in endeav- oring to avoid exposure to the cold. The authority of these cases is questioned (Brown v. Chicago, etc., B. Co., 54 Wis. 352; Terre Haute, etc., R. Co., v. Buck, 96lDd. .S46; 49 Am. Eep. 168), and it is believed that they are not now the law. Bnt where plaintiS, an old colored man, partially paralyzed, was put ofi a train at a station at eight o'clock in the evening, and although the night was cold and there was snow on the ground, he undertook to walk nine miles in the snow and sleet, it was held that the injuries caused by the walk, if any, would not be the proximate result of the removal from the cars unless after reasonable effort at the station he failed to find shelter or conveyance," nor then if in the opinion of the jury his failure was due to his negligence in not having money to pay for the accommo- dations demanded." — Louisville, etc., B. Co. v. Fleming, 14 Lea, 128. See Weightman v. Louisville, N. O. & T. By. Co., 70 Miss. 563 ; 12 So. Bep. 586. Tendency to Disease. — Though the plaintiS be afflicted with a disease which has a tendency to aggravate the injury, the defendant's negligence will' stUl be held to be the proximate cause, and the defense that the sufferer died from an independent disease is not made out unless it is clearly shown that death must have ensued, independent of the injury. — Beanchamp v. Saginaw Mining Co., 50 Mich. 163 ; 45 Am. Bep. 30. Thus, in Louisville & N. E. Co. v. Northington (91 Tenn. 56; 17 S. W. Bep. 880), the court affirmed the charge of the nisipritis judge, which was as follows : " If you find that the company was negligent, and deceased was injured by such negligence then did the injury cause his death, or did he die of some disease? If he died of the injury, — and by that is meant the injury produced the death or resulted in death or so weakened the powers of deceased as to render him unable to resist a disease of which he might otherwise have recovered or with which he might have lived an indefinite time, — the plaintifi should recover, * * • if the death, was hastened or occurred sooner by reason of the injury than it other- wise would, then the injury was the cause of the death." See Thomp- son ». Louisville & N. B. Co., 91 Ala. 496; 8 So. Bep. 406; Graham o. Burlington C. B. & N. Ey. Co., 39 Minn. 81 ; 38 N. W. Bep. 813; Owens V. Kansas City, etc., Ey. Co., 95 Mo. 169; 8 S. W. Eep. 353; Schoen v. 44 DEFINITION AND DIVISION OP SUBJECT. [39] It is no defense where an injury is done in conse- quence of a breach of duty by the defendant to say that the Dry Dock, etc., E. Co., 9 N. Y. S. Eep. 709; City of Mt, Carmel v. Howell, 137 111. 91; 27 N. E. Bep. 77. Where plaintlfE's intestate died of pneumonia about nine days after she had a rib broken and was otherwise negligently injured in accident on defendant's railroad, and it was attempted to show that she had incip- ient pneumonia when the injury was received, It was held, that:, " If the plaintiff's intestate had pneumonia at the time she was Injured, and died of it. It does not follow that the injury was not the' real cause of her death, in this, — that it so impaired her strength and vital force as to render the disease incurable, when, without the injury, it would have yielded to treatment."— Louisville & N. B. Co. v. Jones, 83 Ala. 376 ; 3 So. Rep. 902. The aggravation of the Injury, by reason of a tendency to disease, is no defense. — Stewart v. Eipon, 38 Wis. 684; Baltimore City Passenger By. Co. V. Kemp, 61 Md. 74; McNamara ». Vlllag;e of Clintonville, 62 Wis. 207; Jackson v. St. Louis, etc., B. Co., 87 Mo. 422; 25 Am. & Eng. E. Gas. 327; Louisville, N. A. & C. By. Co. v. Jones, 108 Md. 551. In determining questions of this character the age, habits, health, and occupation of the plaintiff may be properly considered. Morrow v. North Birmingham Si. By. Co. (Ala.), 13 So. Eep. 776; Baker ». Pennsylvania Co., 142 Pa. 603; 21Atl.Eep. 979; 28W.N. C. 220; Owens v. Kansas City, etc., E. Co., 95 Mo. 169; 8 S. W. Eep. 350, supra; East Line & E. E. By. Co. V. Bushing, 69 Tex. 306; 6 S. W. Eep. 834. And if the disease were the proximate result of defendant's negli- gence, it would be an element to be considered by the jury in awarding damages for the pain and injury suffered by the plaintiff.— The Baltimore & City Passenger By. Co. v. Kemp, 61 Md. 74, 619; H.& T. C. By. Co. v. Leslie, 57 Tex. 83; Beauchamp v. Saginaw M. Co., 50 Mich. 163; 15 N. W. Eep. 66; Dickson v. HoUister, 123 Pa. St. 421; 16 Atl. Eep. 485; 23 W. N. C. 128; Louisville, N. A. & C. By. Co. v. Snider, 117 Ind. 436; 20 N. C. Eep. 285; Bishop v. St. Paul City Ey. Co., 48 Minn. 26; 60 N. W. Eep. 927. And though defendant's negligence was not the efficient cause of the illness resulting in plaintiff's death, yet if it occasioned pain and suffer- ing, the defendant would be liable for such pain and suffering. As where defendant sold sulphate of zinc for epsom salts to be administered to a woman in an advanced stage of pregnancy and she suffered a mis- carriage and died by reason of a severe attack of erysipelas, the defend- ant was held liable for the pain she suffered from the administration of the medicine, but not for her death.— Walton v. Booth, 84 La. An. 918. Although it has been held that a negligent act causing fright which produces illness is the proximate cause of the illness (Purcell v. St. Paul City Ey. Co., 48 Minn. 134; 50 N. W. Eep. 1034; Mitchell v. Eochester PROXIMATE CAUSE — FIRES. 45 same injury would have happened by reason of some other cause if the. defendant had not neglected his duty (/"), if if) ITitro-Phospbate Co. v. St. E. Docks, supra. By. Co., 25 N. T. S. Eep. 744; 30 Abb. N. C. 362; 4 Misc. Eep. 675; id. 28 N. Y. S. Rep. 1136) ; and it has been held that, «' The mind and the body operate reciprocally on each other. Physical injury or illness sometimes causes mental disease, a mental shock sometimes causes in- jury or illness of body, especially of the nervous system;" in the case of Scheffer v. Bailroad Co., (105 U. S. 249), where by reason of a collision of railway trains a passenger was injured, and becoming disordered in mind and body, he some eight months thereafter committed suicide. It was held in a suit by his personal representatives against the railway company that his own act was the proximate cause of his death, and they were not entitled to recover. So, in Haile v. Texas & P. Ry. Co. (60 Fed. Bep. 557; 9 C. C. A. Rep. 134), where a passenger on one of defend- ant's trains during an accident, caused by defendant's negligence, received no immediate injury but was made insane by the hardships and excitement resulting from the accident, the court held that the defendant was not liable for the injury to the mind. Fires. — Illustrations are also to be found in cases where fire has been negligently communicated to property, and by force of the wind or other natural agency, carried to the property of the plaintiff. Sparks from a railroad locomotive set fire to the prairie adjoining the company's way at a place where the grass was rank and dry. The wind being high, the fire extended some three miles before night, and continued to burn during the night slowly. The following morning the wind rose again and blew hard, as was not unusual in that country, carrying the fire some five miles farther to the plaintiff's farm, where it swept over a fire line of sixteen feet of ploughed ground and destroyed plain- tifE's property. Plaintiff was held entitled to recover. — Poeppers ». Missouri, etc., Ry. Co., 67 Mo. 715; 29 Am. R. 518; 7 C. L. J. 282. See, also, Coates v. Missouri, etc., Ry. Co., 61 Mo. 38; East Tenn. V. G. By. Co. V. Hesters, 90 Ga. 11; 15 S. E. Rep. 828; Tyler o. Ricamore, 87 Va. 466; 12 S. E. Rep. 799; Liming v. Illinois C. R. Co., 81 la. 246; 47 N. W. Rep. 66. But see Marvin v. Chicago, etc., Ry. Co., 79 Wis. 140; 47 N. W. Eep. 1123. It is immaterial that the fire was partially or apparently subdued be- fore reaching plaintlfE's premises. — Chicago, St. L. & P. R. Co. v. Will- iams, 131 Ind. 30; 30 N. C. Bep. 696; Missouri P. By. Co. v. Cullers, 81 Tex. 382; 17 S. W. Bep. 19. Thus defendant set fire to grain stubble after ploughing around his field to prevent the spread of the fire over the prairie. The same day he attempted to extinguish it. The evidence tended to show that the fire was not actually extinguished, but that It continued to smoulder until two days afterwards, when, without other in- 46 DEFINITION AND DIVISION OF SUBJECT. after all it was the defendant's act which caused the injury. tervening cause than an ordinary change in the direction of the wind, it bnmed alresh, and, rnnning upon plaintifE's land two miles from where the Are had been set, It destroyed his property. It was held that If the defendant was chargeable with negligence in the setting and care of the fire, the fact that it was so long stayed in its progress did not, as a mat- ter of law, excnse defendant from liability, and that It conld not be held as matter of law that such injury was too remote to warrant a recovery against the defendant. — Krlppner v. Biebel, 28 Minn. 139. Bat see Doggett V. Richmond & D. E. Co., 78 N. C. 305. Defendants ran up a harbor, with their steamboat, so kept and man- aged as to emit large quantities of sparks from the smoke stacks, by means of which a fire was started in or near a planing mill and carried by the wind to plaintifE's house, 3,500 feet from the mill. The question of negligence was left to the jury and they found for plaintiff. — Atkin- son V. The Goodrich Transp. Co., 60 "Wis. 141, following Kellogg v, C. & N. Ky. Co., 26 Wis. 223, and Milwaukee, etc., By. Co. v. Kellogg, 91 IT. S. 469. See to the same .effect, Henry v. Southern, etc., B. Co., 50 Cal. 183, and Adams «. Toung,.44 Ohio St. 80; IS Weekly Law Bull. 154, one of the latest reported cases upon the subject. Contra, Bead v. Nicholas, 118 N. T. 224; 23 N. B. Eep. 468. An oil train of defendant being cut in two, the detached part, owing to failure to set the brakes, ran down grade, struck a locomotive on the track and burst the oil tanks. The oil spread over the road-bed, came In contact with fire shaken from the locomotive, caught fire, ran down an embankment into a small stream to a river, and was thence carried to petitioner's building, setting it on Are. The defendant was held liable. — Kuhn ». Jewett, 32 N. J. Eq. 647. But where an oil train of defendant was thrown from the track by a recent land slide, and the oil tanks bursting, the oil became ignited, ran down Into an adjoining creek swollen by recent rains, and flowing down the creek set Are to and destroyed the plaintiff's buildings, three or four hundred feet distant, the damage was held too remote to warrant a recovery. The court said that this would be so, even If defendants were negligent (Hoag v. Lake Shore, etc., B. Co., 85 Fa. St. 293; 27 Am. Eep. 653) ; apparently going out of its way to reiterate the doctrine of Pennsylvania E. Co. v. Kerr (62 Pa. St. 353), and Ryan v. N. T., etc., R. Co. (35 N. Y. 210), which it was believed had been so far qualified in the States in which it was announced as to be regarded no longer law (Penn., etc., R. Co. v. Hope, 80 Pa. St. 373; Baydureo. Knight, 2 Weekly Notes, 713 ; Webb v. Eome, etc., B. Co., 49 N. Y. 420 ; Pollett v. Long, 56 N. Y. 200; Wasmer v. Delaware, etc., E. Co., 80 N. Y. 212; 36 Am. Bep. 608; Penn., etc., E. Co. ti. Lacey, 89 Pa. St. 458), though it has recently ACT OF GOD. 47 In an action of negligence, as in other actions, it is for the judge to say whether there is any evidence of negli- been adopted in Indiana. — The Pennsylvania Co. v. Whitlock, 99 Ind. 16. See BebUng ». S. W. Fa. F. L. ; 160 Fa. St. 369 ; 28 Att. Bep. 777 ; 31 W. N. C. 209. In Hoag V. Lake Shore, etc., B. Co., there was no evidence of negli- gence, and the statement of the court was obiter, and in Lehigh Valley B. Co. V. McEeen (90 Fa. St. 122; 35 Am. Bep. 641), there was some evi- dence of another origin, and the question whether defendant's negli- gence was the proximate cause of the injury was left to the jury. If Beiper v. Nicholas (31 Hun, 491), may be taken to be the law of New York State, it would appear that the doctrine of Byan v. N. Y., etc., B. Co., has not been repudiated. In that case, sparks and burning cinders escaped, through the defendant's negligence, from the top of the smoke- stack in defendant's factory and set fire to the roof of an old unoccupied building situated about two hundred and eighty feet in a southwesterly direction, and on the side of the street with the smoke-stack. Owing to a lack of proper appliances, and to the fact that the doors of the building were locked, the roof of the building could not be reached until the flre had spread across the street to an old bam some one hundred and ten feet long, and some fifty feet distant. From this barn it passed across the street to a saloon and other buildings, and thence to buildings owned by the plaintiff, which stood near the smoke-stack from which the sparks were emitted. It was held that defendant's negligence was not the im- mediate and proximate cause of the burning of plaintiff's building, and that he was not liable for the damages occasioned thereby. Act of God. — Where goods to be transported by common carriers were delayed through their negligence, and afterwards when on their way were destroyed by an extraordinary flood, and there was evidence that the goods would not have been injured but for the delay,-the negli- gence was held not to be the proximate cause of the loss. — Morrison v. Davis, 20 Pa. St. 171. See to the same effect. — Bailroad Co. v. Beeves, 10 Wall. 176; Denny V. N. i[. Cent. B. Co., 13 Gray, 481, and Hoadley v. Nor. Transp. Co., 115 Mass. 364; Bichmond & D. B. Co. v. White, 88 Ga. 885; 15 S. E. Bep. 802. Where defendant contracted to tow plaintiff's barge over Lake Michi- gan, and through his neglect the voyage was delayed, and after it was resumed and being prosecuted a storm was encountered and the barge was lost, it was held that by the mere fact of delay the defendant did not become responsible for the loss, although the delay was unreasonable and unnecessary, and although, as the event proved, the barge but for the delay would probably have been safely towed to its place of destina- tion. — Daniels v. Ballentine, 23 Ohio St. 632; 13 Am. Bep. 264. See, also, McClary «. Sioux City, etc., B. Co., 3 Neb. 44; 19 Am. Bep. 631; 48 DEFINITION AND DIVISION OF SUBJECT. gence at all to go to the jury, and if not, to direct a non- suit (g) ; and it is now well settled in England that a mere (9) Daniel v. Met. By. Co., ante, p. 2 ; Dave; v. L. & S. W. By., 12 Q. B. D. 70. contra, Condict v. Grand Trunk R. Co., 54 N. Y. 500, where the loss was caused by Are, and Michaels v. N. T. Cent. B. Co., 30 N. Y. 564. Where a,bmlding weakened by the vibration of machinery in it was in an unsafe condition when a violent storm demolished it and other build- ings near by ; it was held, that the storm was the immediate cause of the falling of the building and that the burden was upon the plaintlK to prove the unfitness of the structure. — Turner v. Haar (Mo.), 21 S. W. Bep. 737. Where plain^ifE had deposited a quantity of wood at one end of a bridge which he intended to take over the bridge into the city, but was delayed by the neglect of the city to repair it, and the wood was subse- quently carried away by a flood. It was held that he could not recover. — Dubuque Wood and Coal Ass, v. Dubuque, 30 la. 176. But if the property had been exposed to the flood by a wrongful act concurrent in point of time the defendant would have been responsible. — Cooley on Torts, 2d ed., pp. 78, 79 ; Scott v. Hunter, 46 Pa. St. 192. Or if the flood had occurred In consequence of a wrongful act. — Dickinson v. Boyle, 17 Pick. 78. One who maintains an artificial embankment is not liable for injury to neighboring property by overflowing water during a storm, unless the embankment was the Immediate cause of the overflow. — Haney v. City of Kansas, 94 Mo. 384; 7 S. W. Bep. 417; Smith s. Sabine & E. T. By. Co., 76 Tex. 63; 13 S. W. Bep. 165; Sowles ». Moore, 65 Vt. 332; 26 Atl. Bep. 630. Where the plaintiff to avoid a train when started snddeiily and with- out a signal, stepped near to a sand bank which fell upon him, knocking him under the car wheels, where he was run over and injured, it was held that the proximate cause of his injury was tbe falling of the sand bank, and that he could not recover. — Handelnn v. Burlington, C. B. & N. By. Co., 72 la. 709 ; 32 N. W. Bep. 4. And where an unforeseen cause combines with defendant's unlawful act in producing the injury, the defendant wUl be held liable. As where defendant's sign hanging over a city street, in violation of an ordinance, was blown down by the wind in an extraordinary storm, and in its fall a bolt, which was part of its fastenings, struck and broke plaintiff's window defendant was held "liable.— Salisbury v. Hirchenrode, 106 Mass. 458, citing Dickinson v. Boyle, 17 Pick. 78; and Woodward v. Aborn, 85 Me. 271. In Bodgers v. R. B. Co., 67 Cal. 607; 8 W. C. Rep. 20; 1 South. Law Times, 230, the question whether defendant was guilty of negligence in the construction and maintenance of a bridge, by the f aU of which a rail- road train was preciptated into a chasm, or whether the accident was QUESTIONS FOE THE COURT AND JURY. 49 [40] scintilla of evidence is not sufficient to go to the jury {h)i though in America it would seem that the question of negligence is always a question for the jury (i). Upon any given state of facts it is for the judge to say whether negligence can legitimately be inferred, and the jury whether it ought to be inferred (Jc). Where, on the other hand, there is conflicting evidence on a question of fact, or there are two different and yet reasonable views which may be taken, tha judge, whatever may be his opinion as to the value of the evidence, must leave it to the jury (?). The duty of the judge is to declare negatively that there is no evidence to go to the jury but not affirmatively that a cer- tain issue is proved (m). The judges have sometimes been very astute to discover that there is no evidence to go to (A) Gee v. Met. By. Go., L. B. 8 Q. B. (£) Diet. By. Co. v. Jackson, mpm. 161; 42 li. J. Q. B. 105;. Uet. By. Co. v. (q D. W. & W. By. Co. ». Slattery, L. Jackson, 17 L. J. H. L. 303; L. B. 3 App. B. 3 App. Oaa. I1S5. Oas. 193. (<»} Per Lord Penzance, ii. at p. 1181. (t) Sbearman on Negligence, p. 18. due to an enormous downfall of water cansed by what is familiarly known as a clond-bnrSt, and the court said if the negligence of defend- ant combined with the act of God in producing the injury, defendant was liable. So, where refuse from a coal mine upon being deposited in a stream, was carried by an extraordinary flood and loaded upoii plaintiff's land, it was held that a recovery conid be had for the damage. — Elder o. Lykens Val. Coal Ck)., 157 Pa. St. 490; 275 Atl. Kep. 645; 33 W. N. C. 333. Law and Fact. — The statement of the text that negligence is always a question of fact in this country is too broad. Generally negligence is a question of mixed law and fact. It is for the jury to And the tacts, and the court to pass on their effect. When the facts are disputed, or the conclusion to be drawn there- from indisputable, the question of negligence is for the jury. When the facts are undisputed, and the conclusion to be drawn therefrom indis- putable, the question of negligence is for the court. — 2 Thomp. Neg., p. 1235; Cooley on Torts, 2d ed., p. 754; Alabama G. S. B. Co. v. Arnold, 80 Ala. 600; 2 So. Bep. 337; Carter v. Chambers, 79 Ala. 223; St. Louis, L M. & S. By. Co. o. White, 48 Ark. 495; 4 S. W. Bep. 52; Brown v. Central P. E. Co., 72 Cal. 623; 12 Pac. Bep. 512; 14 Pac. Bep. 138; Denver T. & G. B. Co. v. Bobbins, 2 Colo. App. 313; 30 Pac. Bep. 261; Georgia B. & B. Co. v. Mayo, 92 Ga. 223; 17 S. E. Bep 1000; Wright o. 4 50 DEFINITION AND DIVISION OF SUBJECT. the jury when it would seem there is some apprehension of prejudice, as in the case of Ellis v. Gt. W. Ey. Co., L. R. CMcago & N. W. Ry. Co., 27 111. App. 200; Grimes v. Lonisville, etc., Ky. Co., 3 Ind. App. 573; 30 N. B. Rep. 200; Nelson o. Chicago, etc., Ry. Co., 73 la. 576; 35 N. W. Rep. 611; Bowes ». City of Boston, 165 Mass. 311; 29 N. £. Rep. 633; McGnerty v. Hale, 161 Mass. 61; 36 N. £. Rep. 682 ; Detroit, etc., R. Co. v. Van Steinberg, 17 Mich. 99 ; Cralt v. Parker, Webb & Co., 96 Mich. 245; 55 N. W. Rep. 812; Sellick v. Lake Shore & M. S. Ry. Co., 93 Mich. 375; 53 N. W. Rep. 656; Chaddock v. Plnmmer, 88 Mich. 225; 50 N. W. Rep. 135; Read v. Nicholas, 118 N. Y. 224; 23 N. E. Rep. 469; Rhing v. Broadway & S. A. Ry. Co., 63 Hun, 641 ; Lynch v. Brooklyn City R. Co., 6 N. T. S. Rep. 311; South Side P. Ry. Co. v. Trick, 117 Pa. St. 390; 11 Atl. Rep. 627; Haverly v. State Line & S. R. Co., 135 Pa. St. 50; 19 Atl. Rep. 1018; 26 W. N. C. 321; Ewlng ». North Versailles Tp'., 146 Pa. St. 309; 23 Atl. Rep. 338; West Mahaney v. Watson, 112 Pa. St. 574; 56 Am. Rep. 336; Team». Williams, 16 R. I. 20; Kreanziger v. Chicago & N. W. Ry. Co., 73 Wis. 158; 40 N. W. Rep. 657; Harris ». Cameron, (Wisconsin), 51 N. W. Rep. 437; Schrotht;. City of Prescott, 68 Wis. 678; 32 N. W. Rep. 621; Pike ». Grand Trunk Ry. Co., 39 Fed. Rep. 225; Union Pac. Ry. Co. v. Callahan, 56 Fed. Kep. 988; 6 C. C. A. 205; Northern Pac. Ry. Co. v. Lewis, 61 Fed. Rep. 658; 2 C. C. A. 446; 7 U. S. App. 254; Andrist ». Union P. Ry. Co., 30 Fed. Rep. 345; Railroad Co. v. Stont, 17 Wall. 667. It has been said that it must eventually be held in this country that a mere scintilla of evidence is not enough to go to the juiy (Shearman & Redfleld, § llj, and that it is a rule which ought to prevail universally. — 2 Thomp. Neg., p. 1237. But it wUl be found that the cases in which the question of negligence is declared to be one of law are comparatively rare. Illustrations. Crossing Railroad Tracks.— Many of the cases hold that a, failure to look or listen where one could have seen or heard an approaching train before crossing a railroad track, is such negligence as vrill justify the court In withdrawing the case from the jury, or instructing the jury to find for the defendant, or granting a new trial.— Reading, etc., R. Co. v. Ritchie, 102 Pa. St. 426; Pennsylvania R. Co. v. Beale, 73 Pa. St. 604; Abbett o. Chicago, etc., R. Co., 30 Minn. 482; Schaefert v. The Chicago, etc., Ry. Co., 62 la. 624; Schofleld v. Chicago, etc., Ry. Co., 114 U. S. 616; Connelly «. N. Y. Cent., etc., R. Co., 88 N. Y. 346; AUyn v. Boston & Albany R. Co., 106 Mass. 77; C. C. C. & I. Ry. Co. o. Elliott, 28 Ohio St. 340; Railroad Co. v. Houston, 95 U. S. 697; Ormsbee v. Boston, etc., R. Co., 14 R. 1. 102 (deaf mute) ; Slater v. Utica, etc., R." Co., 75 N. Y. 273 (driving load of logs on cold day with covered ears) ; Bellefontaine R. Co. V. Hunter, 33 Ind. 335; Rockford, etc., R. Co. v. Byam, 80 111. 528; Butterfield v. Western R. Co., 10 Allen, 532 (crossing when a storm was QUESTIONS FOB THE COURT AND JUET. 51 IW] 9 C. p. 561 ; 43 L. J. C. P. 304, where four judges thought there was nothing for the jury, where the plaintiff preT&lling, and no signal was given) ; Tbomas t7. Chicago, etc.. By. Co., 86 Mich. 496; 49 N. W. Rep. 547; Urias v. Pennsylvania E. Co., 152 Pa. St. 326; 25 St. Bep. 566; 31 W. N. C. 353; Herlish v. Louisville, etc., R. Co., 44 La. Ann. 280; 11 So. Rep. 628: Grostick t>. Detroit, etc., R. Co., '.'0 Mich. 597; 51 N. W. Rep. 667; Hinckle v. Richmond & D. R. Co., 109 N. C. 472; 13 S. E. Rep. 884; Greenwood v. Philadelphia, W. & B. B. Co., 124 Pa. St. 572; 17 Atl. Rep. 188; 23 W. N. C. 425. So, it is negli- <;ence per ae to drive over a railroad crossing in view of an approaching train. — The Maryland R. Co. v. Nenber, 62 Md. 391; State v. Maine Central R. Co., 76 Me. 357; Grows v. Maine Central R. Co., 69 Me. 412; T. W. & W. R. Co. V. Jones, 76 ni. 312. To this mle there are, however, nnmerons exceptions; and, as above stated, where there is any dispute as to the fact the issue is for the jury. — Nasler v. Chicle, etc.. By. Co., 23 la. 268; 34 N. W. Rep. 850; Jennings V. St. Louis, etc., Ry. Co., 112 Mo. 268; 20 S. W. Rep. 490; CahiU v. Cincinnati, etc., Ry. Co., 92 Ky. 345; 18 S. W. Rep. 2; Toledo, etc., B. Co. o. CUne, 135 nr. 41; 25 N. E. Rep. 846; Terre Haute & P. R. Co. o. Barr, 31 111. App. 57; Manley r. Boston & M. B. Co., 159 Mass. 493; 34 N. E. 951; Chicago, M. & St. P. By. v. Wilson, 133 111. 55; 24 N. E. Bep. 555; Tork «. Maine C. B. Co., 84 Me. 117; 24 Atl. Bep. 790; Betan v. Lake Shore & M. S. B. Co., 94 Mich. 146; 53 N. W. Rep. 1094; Siegel v. Mil- waukee & N. R. Co., 79 Wis. 404; 48 N. W. Rep. 488; Chicago, St. L. & P. R. Co. V. Hutchinson, 120 HI. 587; 11 N. E. Rep. 855; Kellogg v. N. T. Cent., etc, R. Co., 79 N. Y. 464; Stackus v. N. T. Cent., etc., R. Co., 79 N. Y. 72; H. & T. C. Ry. Co. c. Wilson, 60 Tex. 142; contro, Henze c. St. Louis, etc., Ry. Co., 71 Mo. 636; Turner v. The Hannibal, etc., R. Co., 74 Mo. 602; Pennsylvania R. Co. v. Beale, 73 Pa. St. 504; Reading, etc, R. Co. V. Ritchie, 102 Pa. St. 425. Walbing on trac^ — This has been held negligence per ae. — Moore t7. Pennsylvania R. Co., 99 Fa. St. 301; YamaU v. St. Louis, etc., R. Co., 75 Mo. 575; Central B. Co. o. Brinson, 70 6a. 207; Bresnahan v. Cent. R. Co., 49 Mich. 410; McClaren o. Ind., etc., R. Co., 83 Ind. 319; Tennen- brock V. South Pac, etc., R. Co., 59 Cal. 269; Herring v. Wilmington, etc, R. Co., 10 Ired. L. 402; Harty v. Central Ry. Co., 42 N. Y. 468; Manly v. Wilmington, etc., R. Co., 74 N. C. 655; Coggswell v. Oregon, etc., R. Co., 6 Ore. 417; Adams c. New York, L. E. & W. R. Co., 66 Hun, 634; 21 N. Y. S. Rep. 681; Savannah & W. R. Co. v. Madors, 95 Ala. 137; 10 So. Rep. 141; Richards v. Chicago, St. P. & K. C. Ry. Co., 81 la. 426; 47 N. W. Bep. 63; DonneUy v. Brooklyn City R. Co., 109 N. Y. 16; 15 N. E. Rep. 733; contra, Alabama G. S. B. Co. o. Chapman, 83 Ala. 453; 2 So. Rep. 738. As also -stepping in front of a locomotive. — Carroll v. Penn. R. Co., 2 Fa. St. 159; Wenbell v. N. Y. Cent., etc., R. Co., 91 N. Y. 420. 52 DEFINITION AND DIVISION OF SUBJECT. swore [42] that he heard no whistle and beard no porter call out, because the fact of his not hearing was only nega- And lying on a railroad track.— H. & T. C. Ey. Co. v. Sympkins, 64 Tex. 616. Or near the edge ot railroad cross ties. — The Baltimore, etc., B. Co. «. State, 64 Md. 648. Or sleeping near the track. — Denman v. St. Fanl, etc., B. Co., 26 Minn. 357. Gregory ». Southern Pac. By. Co., 2 Tex. Cir. App. 279; 21 S. W-Eep. 417; Smith v. Fordyce (Tex.), 18 S. W. Eep. 663. Crawling under Train. — It has been held negligence j>er se to crawl nnder a train slowly moving or standing stUl. — Lewis v. Hannibal, etc., B. Co., 67 Mo. 671; Lewis v. B. & O. B. Co., 38 Md. 688; C. B. &Q. B. Co. o. Dewey, 26 111. 255; Osteray v. Pac. B. Co., 64 Mo. 421 ; Central, etc., B. Co. V. Dixon, 42 Ga. 327; Chicago, etc., B. Co. v. Coss, 73 111. 394. Or to crawl between cars standing still. — Memphis & Charleston B. Co. V. Copeland, 61 Ala. 376. Biding on Platform ot Oar. — Biding on a car platform against the rnle of the company, the warning of the driver, and without reasonable excuse, has been held negligence per se. — Wills v. Lynn & Boston B. Co., 129 Mass. 351 ; McCaaley v. Tennessee C, I. & B. Co., 93 Ala. 366; 9 So. Bep. 611, following Bailroad Co. v. Hawk, 72 Ala. 116. Or, even with the consent of the conductor or brakeman. — Hickey v. Boston, etc., B. Co., 14 Allen, 429; Goodwin o. Boston & M. B., 84 Me. 203 ; 24 Atl. Bep. 816. But not where the car is crowded and room is not to be had within. — The German Pass. Ey. Co. v. Walling, 97 Pa. St. 65; 37 Am. B. 711; Nolan V. Brooklyn City B. Co., 87 N.T. 63; Werle v. Long Island B. Co., 98 N. Y. 650; Thirteenth, etc., St. Pass. Ey. Co. v. Bondron, 92 Pa. St. 476; 37 Am. B. 707; Bruno v. Brooklyn City E. Co., 26 N. T. S. Bep. 607; 5 Misc. Bep. 327; Marion St. E. Co. v. Shaffer (d Ind. App. 486), 36 N. E. Bep. 861; International & G. N. E. Co. v. Welsh (Tex. Civ. App.), 24 S. W. Bep. 864; Muldoon v. Seattle City By. Co., 7 Wash. 528; 35 Pac. Bep. 422; Morris v. Eighth Av. B. Co., 68 Hun, 39; 22 N. Y. S. Eep. 666; Sutherland v. Standard Life and Ace. Ins. Co., 87 la. 606; 64 N. W. Eep. 463. Or even where notice is posted forbidding it. — Goodrich v. Pennsyl- vania, etc., E. Co., 29 Hun, 50. It has been held not negligence per se to ride on the platform of a street car though there Is room within. — Upham ». Detroit City Ey. Co., 85 Mich. 12; 48 N. W. Eep. 199; Hourney v. Brooklyn City B. Co., 7 N. Y. S, Eep. 602. Arm projecting from Oar Window. — In some cases it has been held negligence i)er«e for a passenger to project his arm from acar window. — Dun V. Seaboard, etc., E. Co., 78 Va. 646; Indianapolis B. Co. v. QUESTIONS FOE THE COURT AND JURY. 53 tive evidence ; [43] two judges however dissented, and the judge at the trial had directed the jury that there was evidence. 'Rutherford, 29 Ind. 82; Xonisville, etc., B. Co. «. Sicklngs, 5 Bnsh, 1;, Fittsbargh, etc., B. Co. v. Andrews, 39 Md. 829; Todd v. Old Colony, «tc., R. Co., 3 Allen, 18; 7 Allen, 207; Fittsbnrgli, etc., R. Co. v. Mc- <:!lnrg, 56 Pa. St. 294; Winters v. Hannibal, etc., R. Co., 39 Mo. 468; Hol- brook V. TJtlca, etc., B. Co., 12 N. Y. 236 ; Golf, C. & S. F. By. Co. v. Dansliank,.6 Tex. Civ. App. 38S; 25 S. W. Bep. 295; Bichmond & D. B. Co. V. Scott, 88 Va. 968; 14 S. E. Bep. 763; Bntler v. Pittsburgh & B. St. By. Co., 139 Pa. 195; 21 Atl. Bep. 500; Georgia P. By. v. Underwood, 90 Ala. 49; 8 So. Bep. 116; Favre v. Louisville & N. B. Co., 91 Ky. 641; 16 S. W. Rep. 370. In others that the question of negligence should be submited to the jury. — Summers v. Crescent City R. Co., 34 La. An. 139; Dahlberg v. Minneapolis St. By. Co., 32 Minn. 404'; Chicago, etc., R. Co. V. Pondrom, 51 111. 333; Spencer v. Milwaukee, etc., B. Co., 17 Wis. 487; Winters v. Hannibal R. Co., 39 Mo. 468; Barton v. St. Louis, «tc., R. Co., 52 Mo. 253. New Orleans & C. B. Co. v. Schneider, 60 Fed. Bep. 210; 8 C. C. A. 571. Where a person sat with his arm resting on a window sUl and wholly within the car, and his arm was thrown out and broken by reason of a coUission, the question whether he was guilty •of contributory negligence was held properly left to the jury. — German Fass. :^. Co. V. Brophy, 102 Fa. St. 38. It is legal negligence to protrude the arm from the window of a fast- going passenger coach, but not to merely rest the arm upon the window «ill.— Carrie v. West Virginia, C. & P. By. Co., 35 W. Va. 389; 14 S. E. Rep. 12. Boarding moviiig' TraiQ. — Boarding a moving train has been held negligence per se. — Ferry v. The Central B. Co., 66 Ga. 746; Dowell v. Vicksburg, 61 Miss. 619. See Chicago, B. I. & P. By. Co. v. Koehler, 47 HI. App. 147; Moylan v. Second Av. B. Co., 128 N. Y. 583; 27 N. E. Bep. 977. But other considerations may affect the question of negligence, and Tender it one of fact, as whether the train stopped long enough to allow passengers to get on. — Swiget v. Hannibal, etc., B. Co., 76 Mo. 475. See Baltimore & O. B. Co. v. Kane, 69 Md. 11; 13 Atl. Rep. 387; Stager ■a. Ridge Av. P. Ry. Co., 119 Pa. St. 70; 12 Atl. Rep. 821. Or where an intending passenger al^tempted to board a moving train by invitation of a brakeman. — Western, etc., E. Co. v. Wilson, 71 Ga. 22. Or where a boy jumped on an engine by permission of the engineer. — Tickers v. The Atlantic, etc., B. Co., 64 Ga. 306. Where the train is moving no faster than a man ordinarily walks it is not negligence per se for a young, active, and unincumbered passenger, on the Invitation of the conductor, to attempt to get on; but it would be 54 DEFINITION AND DIVISION OF SUBJECT. [44] Having now, as it is hoped, explained the defini- tion of negligence, I proceed to consider the three divisions of the subject : — 1. Neglect of duties requiring ordinary care. ^ ' — - — — — 1 ' negligence per se provided the' train were moving at the rate of six or eight miles an hour. — Murphy v. St. Louis, etc., R. Co,, 43 Mo. App. 342. AUghting Irom moving Train. — Alighting from a moving train is negligence per se.— Dougherty v. R. Co., 86 111. 467; R. Co. v. Aspell, 23 Pa. St. 147; JeffersonvUle, etc., R. Co. v. Hendricks' Admr., 26 Ind. 228 ; Morrison v. Erie R. Co.; 56 N. Y. 302,; Burroughs v. Erie R. Co., 63 N. Y. 506; Damont v. New Orleans, etc., R. Co., 9 La. An. 441; Gravett V. Manchester, etc., R. Co., 16 Gray, 501; Eilpatrick v. Pennsylvania R. Co., 140 Pa. St. 602; 21 Atl. Rep. 408; 27 W. N. C. 484; McGaren v. At- lantic & W. R. Co., 85 Ga. 504; 11 S. E. Rep. 840; Hnghlett v. Louisville & N. R. Co. (Ky.), 22 S. W. Rep. 551 (train moving eight miles an hour). But this rule is not without many exceptions, where attending circum- stances are considered.^ Duncan v. Wyatt Park Ey. Co., 48 Mo. App. 659; Richmond v. Quincy, O. & K. C. Ry. Co., 49 Mo. App. 104; Louis- ville, E. & St. L. C. R. Co. V. Bean, 9 Ind. App. 240; 36 N. E. Rep. 443} Louisville & N. R. Co. v. Crank, 119 Ind. 542; 21 N. E. Rep. 31. As when the train was moving very slowly. — Fleck v. Fortune, etc., R. Co., 10 Mo. App. 252; Clotworthy v. The Hannibal, etc., R. Co., 80- Mo. 220; McSloop v. Richmond & D. R. Co., 59 Fed. Rep. 431. Where the passenger may not have had time to alight. — The Cum- berland Valley R. Co. v. Maugans, 61 Md. 53; Wardle v. The New Orleans, etc., R. Co., 35 La. An. 202 (street car passenger). Where the train checked its speed at a station instead of stopping as- required by law.— G. H. & S. A. Ry. Co. v. Smith, 59 Tex. 406; Bucher v.. N. Y. Cent., etc., R. Co., 98 N. Y. 128. Where the train overshot the station. — Terre Haute, etc., R. Co. v~ iBuck, 96 Ind. 346 ; Carr v. Eel River & E. B. Co., 98 Cal. 366 ; 33 Pac. Rep. 213. In Lake Shore, etc.,'R. Co. v. Bangs, 47 Mich. 470, it was held neg- ligence per se for a passenger to jump from a train which should have- stopped, but did notj though the passenger took that course to save; others distress on account of his absence. In Wyatt v. Citizens, etc., Ry. Co., 55 Mo. 485, where a boy jumped, from a street car in rapid motion, it was held error to instruct the jury that such an act was negligence per se; and in Morrison v. Erie Ry, Co., 56 N. Y. 302, where a passenger stepped from a slowly moving train with plaintiff in his arms, his act was held negligence per se. The cases are not harmonious. Alighting on the wrong side of the track. — Gonzales v, N. Y. & H. E. Co., 50 How. Pr. 126. QUESTIONS FOK THE COUKT AND JURY. 55 2. Neglect of duties requiring skill, or au extraordinary amount of care. 3. Neglect of duties requiring less than ordinary care. Or at a place not designed for passengers, has been held negligence per se. — Bancroft v. Boston, etc., R. Co., 97 Mass; 275; Pa. R. Co. v. Zebe, 33 Pa. St. 318; 37 Pa. St. 420. Defect In Highway. — ^A defect in a highway may be such as that it may be declared unsafe as a matter of law. — Prideaux o. Mineral Point, 43 Wis. 513; Schmidt o. Chicago, etc., R. Co., 83 111. 405. And wheliher a person has used due care In traveling on a street or sidewalk; but tMs is usually a question for the jury, as is also the inference of notice from the length of time a defect has existed. — CoUey V. Westbrook, 57 Me. 181. Other cases holding that the question is for the jury are, Glasier v. Town of -Hebron, 62 Hun, 137; 16 N. Y. S. Rep. S03; Sutton v. Town of Vernon, 62 Conn. 1; 23 Atl. Rep. 1020; 27 Atl. Rep. 589; Pomeroy v. Inhabitants of Westfleld, 134 Mass. 462; 28 N. E. Rep. 899; Maxim v. Town of Champion, 50 Hun, 88 ; 4 N. T. S. Rep. 515. Failure to Perform a Statutory Duty. — A failure to perform a statu- tory duty is negligence per se. As the violation of an ordinance authorized by statute prescribing the speed of railroads and signals of warning to be given on approaching crossings. — Karle v. Kansas City, etc., R. Co., 55 Mo. 476; Dahlstrom V. St. Louis, etc., Ry., 108 Mo. 625; 18 S. W. Rep. 919; Pennsylvania Co. V. Horton, 172 Ind. 189; 31 N. E. Rep. 45. But see Lowery v. St. Louis &H. Ry. Co., 40 Mo. App. 564; Matbiason v. Mayer, 90 Mo. 686; 2 S. W. Rep. 834. Leaving a horse unfastened in a street In violation of an ordinance.— Siemers v. Eisen, 64 Cal. 418; Edwards v. Philadelphia & R. R. Co., 148 Pa. St. 631; 23 Atl. Rep. 894; Olson v. Chicago, etc., Ry. Co., 81 Wis. 41; 60 N. W. Rep. 412, 1096; Bott v. Pratt, 33 Minn. 323; 53 Am. Rep. 47. So where a car unlawfully obstructs a highway crossing. — Peterson V. Chicago ft W. M. Ry. Co., 64 Mich. 621 ; 31 N. W. Rep. 648. Selling a pistol cartridge to minor in violation of a statute. — Binford V. Johnston, 82 Ind. 426; 42 Am. Rep. 608. Failing to protect elevator openings as required by statute. — Mc- Bickard v. Flint, 13 Daly, 641. Or to cover a canal.— Platte and D. 0. & M. Co. v. Dowell, 17 Colo. 376; SOPac. Rep. 68. Navigating steam -boat without having its boiler inspected in compli- ance with the statute. — Van Norden v. Robinson, 46 Hun, 667. [45] CHAPTER H. NEGLECT OP DUTIES BEQUIBING OBDQTABY CABE. Section I. Neglect of Duties Requiring Ordinary (J are. By the expression "duties requiring ordinary care " is meant those duties disvolving upon persons who do not bold themselves out as having, nor is there demanded of them, any peculiar or extraordinary care or skill. Different per- sons have, of course, different duties to perform in their different employments or positions in life, and what is ordinary care in one class of persons may not be so in another, and as has been already stated, supra, no act can be said to be peir se negligent or careful, but only in relation to circumstances. Thus more care will in most cases be expected in a person of education than in an igno- rant person, in an adult than in a child ; more care will be required in driving in a crowded street than in an empty one, and so forth ; but with respect to these distinctions the law pays no further regard to them than to expect all men to use such care as reasonable persons ought to do in such matters, be the same more or less. Upon the other hand, if a person undertakes to do something which, if not done with great skill or care, must be injurious, or, if he is doing something for his own advantage, then the law demands that he shall bring to the execution of that which he has engaged to do the necessary skill, and take the necessary care in the execution of it. And where the law thinks it expedient that persons exercising certain important f unc- (56) PEESONS EXBBCISING SKILL. 67 [46] tioQS should be made more than ordinarily careful, it will compel them to be so. These cases will be treated of m Chapter III. Amongst cases illustrative of ordinary duties requiring no particular skill or care per se, and only requiring or- dinary care being done for the mutual benefit of both parties, are all those which arise out of employment of services for reward, or where persons come into collision in the course of pursuing their ordinary avocations. The law i'elating to master and servant will be found post (a) and all that is desired to say here is that in all cases where ordinary services are rendered for reward, both the employer and the employed are liable for ordinary negli- gence towards one another. Such, for instance, is the case of an ordinary bailee for hire, who is bound to take ordi- nary care of the thing intrusted to him by the bailor, as in the case of deposits of goods where the bailee receives money for his care (6). Also where chattels are let to Mre, the hirer must take ordinary care of them (c). In the case of the employment of skilled labor different considerations will arise. It will be seen post. Chapter in., that there are many persons from whom the law re- quires an extraordinary amount of skill, and who will be held liable for what in others would appear to be slight neglect. These will mostly be found to be either public officers to whose services the law compels people to have recourse, or professional persons who have a monopoly or privilege to perform certain services (d). But where a private person who is free to choose whom he will employ selects a person who holds himself out as a skilled laborer, it does not appear that the law will in general hold the per- son so selected liable for " slight " negligence. It would (a) Ch. n., S. 6. liver np old barge In same state as (&) Searle v. Laverlck, L. B. 9Q. B. when hired ;HandfOT v. Palmer, 6 Uoore, 122. 76; Beane v. Eeate, 3 Camp. 1 (horse (c) Shroder v. Ward, IS C. B. N. S. cases). 412; 32 L. J. O. P. ISO (contract to de- (d) Campbell, 29,96, 2nd ed. 58 NKGLECT OP DUTIES EEQUIRING OKDINAEY CAEE. [47], seem, however, that he must show, some degree of skill, and the absence of skill would render him liable for neg- ligence (e). Thus a carpenter must show some knowledge of carpenter's work (/), a builder of buildings, etc., and it is obvious that the amount of skill which ought to be shown will vary according to the particular circumstances. The more skill is required for the performance the more will be demanded in the performance, at the same time that due allowance is made for the difficulty of perform- ance. So, also, the amount of skill and care demanded will be greater or less according as the consequences of neglect are more or less serious. It must be owned that the question, what amount of care is to be expected from one who holds himself out as a person competent to do work in an ordinary trade which he follows, is very difficult to answer. The difficulty arises in defining "skill." As soon as it is shown that a man holds himself out to be a person of skill, he is then bound to show more than ordinary care. Those cases in which I have thought there can be no doubt upon the subject I have placed in the third chapter ; but though there may be no doubt that a medical man is bound to show more than ordinary care, yet it is very doubtful whether the same rule applies to a watchmaker, or to the case (g) cited in Mr. Eobert Campbell's excellent lectures of a finisher of lustres, and it is still more doubtful whether it applies to a brick- layer or carpenter. As has been already said, no act is negligent per se, but is only so where it is a breach' of duty, (e) Cgkmpbell, p. 6, !ind ed., citing D. ($>) EinBhaw v. Arden, Conit of Ses- xix. 2, 9, s. 5, slons Cases, vol. ylil. p. 933. (/) Hasten v. Butler, 7 Bast, 479; Brown v. Davis, 7 East, 180, note (a}. If the distinction as to degrees of negligence Is to be recognized at all It would seem to be applicable here under the different classes of bail- ments of chattels. Where the bailment is for the benefit of the bailor exclusively, the bailee Is liable only for gross negligence. — Schermer v. Neurath, 54 Md. PERSONS EXERCISING SKILL. 59 [48] and every man is in duty bound to bring a reasonable amount of skill to the performance of work which he 491; "Whitney w. Nat. Bank, 60 Vt. 388; 55 Vt. 154; Caldwe-11 v. Hall, 60 Miss. 330; Tancll v. Seaton, 28 Gratt. 601; Carrington v. Ficklin, 32 Gratt. 670; First Nat. Bank Carlisle v. Graham, 85 Pa. St. 91 ; Fir^t Nat. Bank of AUentown ». Eex, 89 Pa. St. 308 ; Pattison v. Syracuse Nat. Bank, 80 N. T. 82; Dudley v. Camden, etc.. Perry Co., 40 N. 3. L. 26; 45 N. J. L. 368; Camp v. Carlisle Deposit Banfc, 94 Pa. St. 409 ; Lawson Bail., § 6; Whiting V. Chicago, etc., R. Co., 5 Dak. 90; 37 N. W. Rep. 222; Hubbell V. Blandy, 87 Mich. 209; 47 N. W. Rep. 602; Burk v. Dempster, 34 Neb. 426; 51 N. W. ReJ). 976; Hlbernia Bldg. Assoc, v. McGrath, 154 Pa. St. 296; 26 Atl. Rep,. 377; 32 W. N. C. 233; Carlyon v. Fitzhenny (Arizona. — ),15Pac. Rep. 273; HiUia ». Chicago, etc., R. Co., 72 la. 228; 33 N. W. Rep. 643; Cannon River Mfgrs. Assoc, v. First Nat. Bank, 37 Minn. 394; 34N. "W. Rep. 741. Where the bailment is for the benefit of tlie bailee exclusively, the bailee is liable for slight negligence.-;— Phillips v. Condon, 14 111. 84; Howard v. Babcock,21 111. 259; Watkins v. Roberts, 28 Ind. 167; Patter- son V. Mclver, 90 N. C. 493; Lawson Bail., § 6, A hotel clerk who receives a registered letter for a guest Is liable for the slightest negligence in making a proper delivery thereof. — Joslyn v. King, 27 Neb. 38; 42 N. W. Rep. 756. Where the bailment is for the mutual benefit of both, the bailee Is bound to use ordinary care and is liable for ordinary neglect, as where a bank is bailee of bonds deposited as security for a loan. — Jenkins «. Nat. Bank, 58 Me. 275; Lawson Bail., § 6. See Gleason ». Beers, 59 Vt. 581; 10 Atl. Rep. 86; Preston v. Prather, 137 U. S. 604; 11 S. Ct. Rep. 162; aflarming,29 Fed. Rep. 498; Onderkirk o. Central Nat. Bank, 62 Hun, 1; 4 N. Y. S. Rep. 734. Illustrative of ordinary care, see Kinchelo ». Priest, 89 Mo. 240; 1 S. W. Rep. 235; Am. Dist. Tel. Co. v. Walker, 72 Md. 454; 20 AtL Rep. 1. A warehouseman is bound to use ordinary care. — Moulton v. Phillips, 10 R. I. 218; Myers v. Walker, 31 HI. 353; Jones v. Morgan, 90 N. Y. 4; 43 Am. Rep. 131 : Mobile, etc., R. Co. v. Prewitt, 46 Ala. 63 ; Seals c- Edmondson, 71 Ala. 609; Merchants' Wharf -Boat Assoc. ». Smith (Miss.), 3 So. Rep. 249; following, Id. v. Wood, 64 Miss. 661; 2 So. Rep. 76; Oderkirk v. Fargo, 61 Hun, 418; 16 N. Y. S. Kep. 220. Where a warehouseman receives grain to be stored for the owner, and places It in a common bin with his own and that received from the other depositors, and sells from this receptacle, retaining always sufSclent to jsupply each owner, the contract continues one of bailment, and the ware- houseman is not liable for a loss resulting from an accidental fire not attributable to his wrong or injury. — Rice v. Nixon, 97 Ind. 97; Botten- berg V. Nixon, 97 Ind. 106; Ledyard v. Hibbard, 48 Mich. 421; 42 Am. Rep. 474. 60 NESLECT OP DUTIES BEQUIRINa OEDINARY CAEB. [49] holds himself out as being capable of performing, and it is probably impossible to tell where the law would draw Safe depositaries. — Safe Deposit Co. v. Pollock, 86 Fa. St. 391 ; Gray V. Merriam, 148 HI. 179; 36 N. E.Bep. 810; following Preston v. Pratlier, 137 U. S. 604; 11 S. Ct Hep. 162; afHrming 46 HI. 'App. 337; Eoberts v. Stuy^esant Safe Deposit C!o., 123 N. Y. 67; 26 N. £. Bep. 294; reversing 1 N. Y. S. Eep. 862. And so is a livery stable keeper bound to ordinary care. — Swann a. Brown, 6 Jones L. 150; Berry v. Marlx, 16 La. An. 248. See Cloyd v. Steiger, 134 111. 41; 28 N. £. Bep. 987. He is not an inspier. — Dennis v. Hnyck, 48 Mich. 620; 42 Am. Bep. 479. An agister. — Wood v. Bemick, 143 Mass. 463; 9 N. E. Bep. 381. A cotton ginner. — Eeltou v. Taylor, 11 Lea, 264; 47 Am. Bep. 284. One taking a horse on trial with option to porchase if satisfactory. — > Colton V. Wise, 7 111. App. 396. A workman on chattels. — Bussell v. Koehler, 66 111. 459; Baird «. Daley, 57 N. Y. 236 ; Halyard v. Dechelman, 29 Mo. 459 ; HiUyard «. Crab- tree, 11 Tex. 264. A store-keeper is liable for the loss of a customer's wearing apparel while the latter is trying on garments.— BnnneU v. Stem,122N. Y.539; 25 N. B. Bep. 910; reversing 14 Daly, 367; WoodraS v. Painter, 150 Pa. St. 91; 24 Atl.Bep. 621. But see Bea v. Simmons, 141 Mass. 361; 55 Am. Bep. 492. A restaurant keeper is liable for the overcoat of his gnest. — Ultzen v. Nicols, [1894] 1 Q.B.92. See post, p. 419. An agricultural society is responsible for stolen exhibits. — ' Vigo Ag. Soc. V. Brumfield, 102 Ind. 146; 62 Am. Bep. 657. A bath-house proprietor is liable for thefts where persons are indis- criminately adinftted. — Bird v. Bverard, 23 N. Y. S. Bep. — ; 4 Misc. Eep. 104. But in aU. these cases where skill is required it is to be understood that it means ordinary' skUl in the particular business or employment which the bailee undertakes or in which he is engaged. — Lawson Bail., § 40. ^ But it is more clearly in the line of work upon a chattel that the considerationof skill avails; andhqre, though our standard of ordinary diligence still applies, it is more likely to vary, and the compensation as well according to the delicacy and difficulty of the work, and of the work- man's training, habits and experience and reputation for the particular kind of undertakings. For careless custody he must respond, of course ; but the main undertaking rises in plane until in the case of some famous sculptor or painter such a degree of ability to do the service may be engaged and paid for that if we averaged mankind in the mass, instead of by classes, the skill should be pronounced not ordinary, but extraor- dinary. — Lawson Bail., § 40. FEB80NS EXEBdSmO SKILL. 61 the line, and say all those on this side of the line are skilled in the sense that they are liable for slight negligence, and those upon the other side, although in one sense skilled, are only liable for ordinary negligence. It will be undoubtedly seen (h) that the law does regard certain skilled persons as bound not merely to exercise such ordinary skill as may be used in their profession generally, but to approve them- selves to be absolutely skillful. We take it, then, to be the law, that while the jury consider whether in the case of an ordinary avocation, the person exercising it has done so with the ordinary skill used by sensible men of his craft, yet that in certain cases more than this sort of skill will be demanded. The simple practical test is to consider what is the duty which the particular person has to fulfill, and whether he has reasonably fulfilled it. Thus a person who holds himself out as a valuer of ecclesiastical property, although not bound to possess aprecise and accurate kaowl edge, yet is bound to have a knowledge of the general roles and of the broad distinction between a valuation, between outgoing and incoming tenants, and outgoing and incoming incumbents (t). Thus a manufacturer of any ordinary article is bound to use reasonable care and skill in seeing that it is fit for the particular purpose for which it is made or used; and he is responsible for latent defects. [50] The seller of an article which is to be made warrants that article to be fit for the purpose for which it is sold (&), but in the case of carriers the rule is somewhat different. There tiie carrier only warrants that the carriage is free from defects, patent or latent; except such as no care or prudence can discover (Z). The seller or letter out of a specific article does not warrant that that specific article is reasonably fit for the purpose for which it is hired or (A) See Oh. m. note, 615; Harris v. Waite, SI Vt. 481; (j) Jenkins v. Bethsm, 15 C B. 168. Poland v. Miller, 95 Ind. 387.] Ci) Bandal c. Netrson, 3 Q. B. I>. 103. (0 Readbeai v. Hid. By. Co., L. B. [Benj. on Sales, 1th Amex. Ed., sees. 661 Q. B. 379, jHwt, Ob. HL, s. 1. 62 NEGLECT OF DUTIES REQUIRING ORDINAKY CARE. bought .(m). But there is an implied contract on the part of the seller or letter out of a specific article that he will not by want of reasonable care allow it to become worse than it was when the contract was made (n). Persons coming into collision in their ordinary avocations are liable for ordinary negligence, for their duty is to take oij^ary care. The owner of premises is liable, as I think, for the ordinary negligence to the persons whom he has allowed to come there for their advantage ; he has under- taken no special responsibility with respect to them as he would have done had he invited them for his own benefit, and is not bound to take more than ordinary care ; but I am inclined to think he has taken some higher duty upon him than tliat of a gratuitous bailee (o). So, also, the liability of host to guest, or visitor at his house stands upon the same ground (p). The relationship here is not that of inviter and invited, where the inviter is liable as we shall see (q) for slight negligence; but the guest takes the premises as he finds them, subject only to the duty of the host to warn against any trap. Neither is [51] it intended to speak here of " host " in the sense of innkeeper, whose position is, as will be seen (Ch. III., s. 19), that he is bound to exercise more than ordinary care. The visitor seems to be in the position of a bare licensee, and accordingly it has been said that the host is only liable for something in the nature of a trap (r) ; but it is to be observed that it is also said that he ought to take reasonable care, that is to say, ordinary care (s). (jn) Robertson v. Amazon TngOo., 7 Flack, 90 Ind. 205; Camp ». Wood, 76 N. Q. B. D. 598; Gleason v. Smith, 39 Hnm, T. 92; Xotten v. Phipps, 52 N. Y. 364; 617. , Parker v, Barnard, 135 Mass. 116.] (7S) Per Brett, L. J., in Robertson v. (p) Somhcote v. Stanley, 1 H. & N- Amazon Tag Co., at p. 606. 248. [Whart. Neg., sec. 825; Shearman (a) Indermaarv. Dfames,L.R.2G.P. &Redf., Bec.4t9a.] 311. These cases will be found treated (g) Pott s. 2, and Ch. lU., s. 2, oC more fully, and the question discussed (r) See per Bramwell, B., In Sonth- iii s. 2, Duties of Owners of Property, p. cote v. Stanley, aupra. HO. [Carleton v. Franconia Iron Co.', 99 (s) See this question discussed post, Mass. 316 ; Thomp. Neg., p. 301 ; Naye v. Oh. II., s. 2. LAW OF THE ROAD. 63 So when a man driving a trap offers a seat to a friend, each pursuing his own business or pleasure, he is liable for ordinary negligence (<). The Court said that he is liable for gross negligence only, bat I am inclined to think, for the reason presently given, that he is liable for ordinary negligence (m). Persons driving or riding upon the highways are in the exercise of their lawful and equal rights, and the law im- poses upon them the duty of taking ordinary care not to injure one another ; and the same With regard to foot-pas- sengers and drivers, for as foot-passengers and drivers of vehicles have an equal right to use the highway (ae), so they have equal duties to take care to look out for each other (y). The question of the " rule of the road," as it is called, often gives rise to some difficulty. It should be remem- bered that persons are not bound to keep to the right side of the road (s), for there may be many good reasons for going to the other side ; but when they are on the other side they ought to exercise more than ordinary care. There may even be occasions when it would be negligence to drive upon the right side of the road, as when another [52] is on the wrong side (a). It seems to be prima facie evidence of negligence against a vehicle which has run into another vehicle that the former was on the wrong side. See Chapter YI., Presumptions. Where a man is walking in a public street, and a barrel falls upon him from a window and injures him, he is enti- tled to an action against the owner of the barrel, if such owner has been guilty of ordinary negligence {b). This (0 Moffatt).Bstemaii,L.B.3F.0.11S. E. 81; Meyer v. Llndell Bailway, 6 Mo. [See Shearman and Eedfleld on N^. App. 27. See also Ob. V., Presumptions 3d ed. sec 17 n., sec. 22.] of Negligence. (») See poit, s. a. (a) PuckweU v. Wilson, 5 C. & F. STB. (z) Boss V. Litton, 5 C. & F. 407. (a) Clay v. Wood, 5 £sp. 41; Wade v. (y) Cotton V. Wood, 8 O. B. N. S. 569; Carr, 3 D. & B. 255 ; Tnrley v. Thomas, 8 S9 L. J. C. F. 333; Hawkins v. Cooper, 8 C. & F. 103 (a saddle-horse case). C. & P. 473; WUliams v. Bichards, 3 O. £ (6) Byrne v. Boadle, 2 H. & 0. 722. 64 NEGLECT OF DDTIE8 REQUIRING ORDINARY CARE. case, and those above mentioned, afford very good illustra tions of the truth that an act is not negligent ^erse, but only in relation to circumstances, and that in some circum- stances more care is required than in others. A man driv- ing or lowering a barrel in Cheapside mflst use more care than would be required of him in a country lane ; but this is a distinction of fact and not of law. TblB class of cases, however, will be Piopezty,s.2,infra, [Corriganv. Union fonnd nnder the heading Neglect of Sag. Beflnery, 98 Mass. 577.] Duties by Owners and Occupiers of Law of the Boad. '^Foot passengers and drivers of vehicles have eqnal rights in the pnblic streets and highways. — Barker v. Savage, 45 N. Y. 191 ; Brooks v. Schnerin, 61 N. Y. 343; Belton v. Baxter, 54 N. Y. 245 ; Dnnham ». Eackliff, 71 Me. 34B ; Pigott v. Lilly, 60 Mich. 221 ; 27 N. W. Rep. 8; Schaefer v. Osterbrink, 67 Wis. 495; 30 N. W. Rep. 922; Aznoe v. Conway, 72 la. 568; 34 N. W. Rep. 422. Bicyclists have equal rights with other travelers. — Holland v. Bartch, 120 Ind. 46; 22 N. E. Rep. 83. See collated decisions, 33 Cent. L. J. 262; EUiot onRoads and Streets, pp. 618 — 635. It is the duty of foot passengers and hors emen to give way to loaded vehicles on narrow thoroughfares. — Beach v. Farmeter, 23 Pa. St. 196. As to the duty of pedestrians to look both ways before crossing the business streets of large cities. — See Barker v. Savage, 45 N. Y. 191, and Williams v. Grealy, 112 Mass. 79. By statute law in some States and generally by custom, drivers -of vehicles are required to keep to the right of the center of the road so far as to conveniently admit of the passage of travelers meeting them. — Levick O.Norton, 51 Conn. 461; Mahogany o. Ward, 16 E. 1. 479 ; 17 All. Rep. 860. A bicycle is a " vehicle " or «' carriage " within the meaning of Pub. St. R. I. ch. 66, § 1 ; a law of this kind.— State v. Collins, 16 R. 1.371; 17 Atl. Rep. 131. A statute requiring travelers meeting each other to " seasonably turn their carriages tO the right of the center of the road," has been con- strued to mean to the right of the center of the worked part of the road. — Earing v, Lansingh, 7 Wend. 185. And in the winter season when the worked part of the road may be obscured by snow, to the right of the center of the beaten or traveled track.— Smith v. Dygert, 12 Barb. 613; Jacquith v. Richardson, 8 Mete. 213. See Daniels v. Clegg, 28 Mich. 32, and Commonwealth v. Allen, 11 Mete. 403. A violation of this law will not prevent a recovery by plaintijS in case of a collision, if the defendant could have avoided the injury by the exercise of ordinary care (Jones v. Andover, 10 Allen, 20; Smith v. Gard- LAW OF THE KOAD. 65 [53] Persons who undertake to manage ships are undertaking a matter requiring more skill and involving probably more serious dangers than riding or driving. The question of their liability is somewhat complicated, and will be found treated of in the last section of Chapter III., post. Section U. Neglect of Duties by Ovmers and Occupiers of Heal Property. The r^hts which a man has over his own land are, like other rights, subject to modification by the conflicting rights ner, 11 Gray, 418), nor will it render the defendant liable in damages, it tbe plaintiff could have avoided a collision by the exercise of ordinary care. — Parker v. Adams, 12 Mete. 41S; Eennard v. Barton, 26 Me. 39. The mistake of the plaintiff in turning while in a dangerous position is not negligence. — Schimpf v. Sliter, 19 N. Y. S. Rep. 644. " A better statement of this doctrine Is that the fact that the traveler drives to the left is not negligence per se, nor does it necessarily make him answerable for damages in case of a collision, bnt it is a circum- stance to go to the jury as evidence of negligence." — Thomp. on N?g., p, 383, citing Jones v. Andover, 10 Allen, 20 ; Goodhue v. Dix, 2 Gray, 181 ; Spofford V. Harlow, 3 Allen, 176 ; Clay v. Wood, 5 Esp. 44 ; Wayde v. Lady Carr, 2 Dow. & By. 255, and Brooks v. Hart, 14 N. H. 307; Beckerle v. Weiman, 12 Mo. App. 354; Newman v. Ernst, 10 N. T. S. Eep. 310; Ran- dolph o.O'Biorden, 155 Mass. 331; 29 N. C. Eep. 583f Walkup v. May, 9 Ind. App. 409; 26 N. E. Rep. 917; Riepe v. Elting, 89 la. ; 56 N. W. Rep. 285; Mooney v. Trow D., P. & B. Co., 21 N. Y. S. Rep. 957; 2 Miss. Eep. 238. But more care is exacted of one on the wrong side of the road than if he were on the right side. — Pluckwell v. Wilson, 5 Car. & P. 375. This rule does not apply to a case where the road is clear (Parker v. Adams, 12 Mete. 415; Foster v. Goddard, 40 Me. 64), where travelers are going in the same direction (Bolton v. Colder, 1 Watts, 360; Poster v. Goddard, 40 Me. 64; ClifEord v. Tyman, 61 N. H. 508 ; contra, Knowles v. Crampton, 55 Conn. 336; 11 Atl. Rep. 593), or crossing or turning into the road (Smith v. Gardner, 11 Gray, 418; Lovejoy v. Dolan, 10 Cush. 495), or meeting at the intersection of two streets (Garrigan v. Berry, 12 AUen, 84 ; see Norris r. Saxton, 168 Mass. 46 ; 32 N. E. Rep. 964), to vehicles meeting foot passengers (Barker v. Savage, 45 N. Y. 194), to street cars or vehicles meeting them (Helton v. Baxter, 33 N. Y. Superior Court, 182), 5 66 NEGLECT OF DUTIES EEQUIEING OKDINARY CABE. of others. The allegation of negligence presupposes, as [54] we have seen (c), the existence of equal rights. Where a man is exercising a right upon his own land, and, in doing so, disturbs the right of another, the former right may be dominant or subordinate, in either of which cases no question of negligence arises. If A. digs a hole in his land, and B., who has a right to personal security (but no right to be on the land) falls into it, A.'s right is paramount to B.'s, and no question of negligence arises (d); but if A, had permitted B. to come upon his land, the rights would be equal, and questions of negligence would arise, viz., whether the pit was negligently left unguarded, and whether B. was using his right of being there with care (e). If A. is owner of the surface of the land, and B. has rights of mining beneath, or beneath adjoining land, A.'s right of support, for his land is paramount, and it is no answer that B. has used the utmost care (f). So if A. digs a hole near the edge of his land, and causes B.'s ancient house or one which has been built twenty years to fall, no question of negligence arises, but a wrong has been committed, what- ever care, may have been taken {g). The questions of right of support do not come within the bounds of this treatise. (c) Cb. I. bad been put wbere it Is witbont ever (({} Knigbte. Abeit,6Fa. St. 173. See baying bad tbe sapport of bis land." post as to excavationB. Tbls wonld seem to be a Teiy difficult (e) Williams v. Groncott, 4 B. & S. test to apply practically. In Hilton v. 149 ; [Yotmg v. Harvey, 16 Ind. 3U ; con- Earl Granville 5 Q. B. 701, and in Hilton tra. Turner ». Thomas, 71 Mo. 696.] v. Wbitebead, 12 Q. B. 734, In one count (,f) Hnmpbries v. Brogden,and otber negligence vras alleged In excavating cases. under a honse. It was also alleged In Ig) ItlssaidlnSbearman, 8.497, tbat Hnmpbrles v. Brogden, bnt was tbere tbe true test is, tbat, altbopgh not liable snperflnons. Tbese matters are dls- for tbe natnral consequences of witb- cussed at great length in tbe judgments drawing the support, " yet a man must In Angus & Co. v. Dalton and Commls- act witb sucb care and caution that bis sioners of Her Majesty's Works, 47 L. J. neighbor shall suffer no more injury Q. B. 163 ; L, B. 3 Q. B. D. 86 ; 6 App. Gas. tbanwonld have accrued if the structure 740. See infra, or buildings moved in tlie streets on rollers (Graves v. Shattuck, 35 N. H. 267), and it has been held not to apply to horsemen meeting vehicles. Dudley v. BoUes, 24 Wend. 465. lateraij support. 67 But in the case of a house recently built upon adjoining land, it may be that the rights are equal, and that the adjoining owner is answerable for negligence only in the exercise of his right to use his own land. This is a ques- tion, however, which is involved in much doubt. Upon [55] the one hand many expressions of the judges will be found which support the proposition above stated (h), while the case of Gayford v. Nicholls («') is, I think, a clear authority to the contrary. From the judgments of the judges in the House of Lords in Angus v. Dalton {Je) (see particularly the judgment of Lord Penzance), it appears that if an owner of land builds a house, his neighbor may dig his own soil away so as to bring the house down ; but Lord Penzance said that if the matter were res Integra he should have held the contrary. Lord Blackburn (Z) said: " I see no ground for doubting that the right to forbid digging near the foundations of a house without taking proper precautions to avoid injuring it, is for the reasons given by Lush, J. (»ra), one very little onerous to the neigh- bor, and one which it is expedient to give to the owner of the house." No doubt the learned Lord of Appeal is speaking of a house which has been built for twenty years ; but it seems that the same reasoning would apply to a house just built. The question of negligence was in no way raised upon the facts in Angus v. Dalton. The text-writers appear generally to doubt what the law is. After saying that the surface owner is entitled as against the miner to support, Messrs. Shearman and Bedfield, in their work upon the " Law of Negligence," s. 506, say that " it does not appear to have been decided whether the surface owner has a simi- lar right to support for buildings erected by him upon the land, but we think he should have. The miner is undoubt- (fe) Brsdbee v. Clirist's Hospital, iH. (i) Gayford v. K'lcliolls, 9 Exch. 702. & 6. 758; Dodd v. Holme, 1 A. & £. 193; (i) 6 App. Gas. 740. Davis V. L. & BlaCkwall Ey. Co., 3 Scott, (I) p. 827. 699; 1 M. & Gr. 799; Harris v. Bydlng, 5 (m) 3 Q. B. D. 89. M. & W. 60, and other cases. 68 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. edly liable for damage done to such buildings by his negli- gence." It does qpt appear vrhether the writers are speaking of lateral support or not; nor whether they are speaking of ancient houses or not. Mr. Wharton says, s. 929, " When- ever the owner of the soil has the right, > so far as concerns ad- [56] joining buildings, so to excavate, he must exer- cise this right with the diligence good builders are in this respect accustomed to employ in similar circumstances ; " and he cites Jeffries v. Williams (n) and other cases;, but Jeffries v. Williams was not a case of an owner. Here again, also, the meaning of the passage is somewhat obscure. Mr. Goddard, in his admirable treatise on the '« Law of Easements" (2d ed.), p. 41, after pointing out that it was thought in Eogers v. Taylor (o) that there was a dis- tinction between subjacent excavations and adjaqent, de- termines that " support for buildings in an easement which must be acquired, not a natural right {p). So, also, a man may, after his land has been excavated for twenty years, acquire an easement for support of the adjacent land in addi- tion to his natural right." So far he appears to be dealing with a paraiiaonnt right, and he does not say what would be the effect of excavating negligently near a modern house. He remarks that •' though it is rather beyond the scope of this treatise, the mere fact of contiguity of buildings im- poses an obligation on the owners to use due care," and it is submitted that this might be extended to the point in question. Mr. Gale discusses this question at considerable length (see 5th ed. by Gibbons, 419-446). In the case of adjoin- ing buildings he states the law to be, that a man must use no unnecessary violence in removing an encroachment, but with this limit, is entitled to the free use of his own prop- er) Jeffries v. Williams, 6 Exoh. 792. (p) See the lodgment ol the Loi'd (o) Rogers v. Taylor, 2 H. & N. 828; 27 Chancellor in Angus v. Dalton, 6 App. L.J. Ex. 173. Gas. 740. LATERAIi SOPPOKT. 69 erty; and in the case of excavating near a modern house, p. 446, note, " if the mere removal occasions the damage, he is not liable, however negligent; but if the manner of the removal extends his acts beyond the limits of his own prop- erty, and is a trespass upon the plaintiff's land, he is liable." [57] The doubtful state of the law is also noticed in 2 Wms. Saunders, note to Smith v. Martin, p. 802, note (a). ' On the whole, I think it is not unreasonable'to say that an owner of land has a right to dig in his own ground, close beneath or close beside his neighbor's modern house, and his neighbor has a right to have a house on the edge of his own land, and the law reasonably regards the two rights as equal ; and, as a consequence, a negligent exercise of such rights is actionable as negligence ; but in the case of an ancient house, the law reasonably says that the right of the owner of the house is paramount. In the case of adjoining houses there can, I think; be no doubt that a presumption may arise from length of time or other circumstances, of an absolute right to lateral sup- port (q), and then the question of negligence does not arise, for the right to support is paramount ; and further, that where this presumption cannot be made, it often becomes a question whether, from the mere fact of con- tiguity, the defendant has been negligent or not in re- moving the lateral support (r), and if he has, he is liable to an action for negligence. (9) See per Cockbnin, C. J., in Aligns tion. At all events, It may be acquired V. Dalton, L. B. 3 Q. B. D. at p. 116. See by grant, express or implied." «. c. on appeal, 4 Q. B. D. 182; 18 L. J. Q. (r) Walters v. Ffell, 1 M. & M. 363; B. 225 ; 6 App. Gas. 710. It most be borne Dodd e. Holme, 1 A. & E. 193 ; Hassey «. in mind that Angns v. Dalton was a case Goyder, 4 C. & P. 161 ; Goddard, p. 12; where support was claimed for a bnlld- Peyton v. London (Mayor of), 9 B. & O. ing by land, not for a balldlng by 195 (no occasion to shore up adjoining another bnildlng. "Iti8donbtfnl,"8ays boildlng) ; Chadwick v. Trower, 6 Bing. Hr. Goddard, 2nd ed., p. 187, " whetber N. C. 1 (no occasion to give notice to a lateral support for one building from owner — defendant mast have notice or another can be acquired by prescrip- knowledge of the danger). 70 NEGLECT OF DUTIES EEQUIHING ORDINAKT CARE. So, also, in the case of adjoining mines, the question will arise whether there is a paramount right, or whether the rights are equal? (s) If there is a mere user of a para- mount right of property, there is no ground for an action of negligence ; but if something is done by the owner of property which is not the necessary or ordinary user of his property but something which alters the character of his [58] property and so injures his neighbor, the question of negligerice arises, for he is no longer in the exercise of a paramount right (t). The duty to take care having arisen, the next question is, what is the amount of care which should be taken ? This is governed by the general principles stated ante, so that where an owner of property is using his property for his own advantage only, he is bound to take more than ordinary care (m); where for the benefit of both parties, ordinary care: and where for the benefit of another, less' than ordi- nary care. > The owner of realty is liable, like the owner of personalty, neither more nor less, for negligence (x) ; and is no more responsible for the consequence of the user of it in a manner in which it was never intended to be used than is the owner of personal property (y). Where the rights are equal, as where a person is upon the premises in the exercise of a right, as in the right of navigation of a river (z), or the right of passing along a (<) Smith v.Eenriok, 7 0. B. 515. (y) Fanjoy n. Scales, 29 Cal. 243 (0 Compare Wilson v. Waddell, L. B. (bnildei placed staging upon the cornice 2 App. Gas. 95; and Fletcher v. Smlt^i, 3 of a building; held, owner of balldlng App. Gas. 781. not liable. [Shearman & Bedfield, sec. (u) Smith V. Fletcher, L. B. 2 App. 500.] Gas. 781. See this, case post. (,z) White v. Phillips, 15 O. B. K. S. 24S. (x) Beedie v. Xorthwestern By., 1 Exch. 2U. The questions of lateral and subjacent support have been discussed ante, pp. 5, 6, 7, and 8. Since writing those pages, the Hpase of Lords have dismissed the appeal in the case of Mitchell u. Darley Main Colliery Co., 53 L. J. Rep. Q. B. 471, noted ante, p. 9, \hus afDrming the judgment COMING UPON LAND BY INVITATION. 71 [59] highway (a), or some other right (b), or has come by invitation (c), express or implied (d), the owner of the (a) Chaich of the Ascension v. Bnck- hart, 3 Hill. 193; Kearney v. L. B. & S. Ey. Co., L. B. S Q. B. «1; 6 Q. B. 789; 40 I- J. Q. B. 285 (brick feU Irom railway bridge npon plaintiff in highway) ; Byrne V. Boadle, 33 L. J. Ex. 13; 2 H. & C. 722 (barrel from window upon plaintiff in highway). [As where plaintiff was struck by a brick falling from a bnilding in process of, erection, the defendant was held liable becanse of the omission to construct barriers, Jager v. Adams, 123 Mass. 26; s. c. 26 Am. Bep. 7; bat in Maaerman v. Seimerts, 71 Mo. 101, it was left to the jniy to determine whether the injnry was caused by defendant's negli- gence In failing to provide a sofScient barrier, or to plaintiff's negligence in disregarding the one provided. Where plaintiff was struck by a brick falling from a dilapidated building while stopping to tie his shoestrings on the doorslll of the building, his head being on a line with the street, defendant was held liable. Murray v. McShane, 52 Md. 217; s. c. 36 Am. Bep. 367. See McCul- longh V. Shoneman, S. O. Fa., 41 Leg, Intell. 139; 12 Weekly Law Bull. 291, where the Injury was caused by the fall of a waste paper bag, and Jessen v. Swelgert, S. C. Oal., 4 W. E. Bep. 586, by the tall of an awning sheet insecurely fastened.] — [A person struck by snow falling from a building while he is right- fully In the highway properly unloading a wagon may recover for his injury. Smethurst v. Proprietors Ind. Cong. Church, 148 Mass. 261 ; 19 N. E. Bep. 387- See Haunem v. Fence, 40 Minn. 127 ; 41 N. W. Bep. 657. So it is negligence to throw bales of hay npon a poblic side- walk without giving sniBclent warning. Dehring v. Oomstock, 78 Mich. 153 ; 43 N. W.Bep. 1049. So to drop materials from buildings. Dlxouv. Finns (Cal. ) , 31 Pac. Bep. 931 ; also, same case, on rehearing, 98 Oal. 384; 33 Pac. Bep. 268; Alexander V. MandevUle, 33 111. App. 689; Hally V. Bennett, (Minn.) 49 N. W. Bep. 189. But see Angus v. Lee, 40 111. App. 304.] (A) Scott V. Liverpool Dock Co., 3 H. & C. 69; 34 L. J. Ex. 17 (sugar bags fell from a lift upon plaintiff, who was there as customhouse officer to inspect) ; Wel- fare i>. L. B. & S. O. Ey. Co., L. E. 4 Q. B. 693) ; 38 L. J. Q. B. 241 (roll of zinc fell from roof where defendant's man had a right to be; plaintiff looking at time tables where he had a right to be; held, that as a matter of fact there was no evidence of negligence). (c) Chapman v. Eothwell, El. Bl. & El. 168;. Smith v. London Docks Co., L. B. 3 C. P. 326; 37 L. J. C. P. 217; Tebbutt V. Bristol By. Co., L. B. 6 Q. B. 73 ; 40 L. J. Q. B. 78; Holmes v. Northeastern By., L. B. 6 Exch. 123; 40 L. J. Ex. 121. This dass of cases comes within our second division, and will be found treated of pott, Ch. in. (<2) Indermaner v. Dames, L. B. 2 C. P. 311 ; 36 L. J. C. P. 181. of the Conrt of Appeal. Lord Blackbnrn dissented. See Law Joamal (London), Feb. 13, 1886. In City of North Vernon v. Voegler, S. C. Ind., 26 Am. Law Eeg. 101, Elliott, J., said: " If that case can be regarded as well decided, it must be deemed an exception to the general rule, which is that one action and one only can be maintained for a breach of duty constituting a tort." In that case (City of North Vernon v. Voegler) it was held that ' ' where the cause of action is the negligence and unskillfnlness of the officers of a municipal corporation in the improvement of a street, the injnry is complete and permanent, constituting but one cause of action, and in a suit on that cause of action all damages present and prospective may be recovered, and for fresh damages resulting from the Improvement, a second action will not lie." 72 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. property will be liable for negligence of some degree, according to circumstances. Very usual examples of this kind of negligence will be found pos?, Ch. III., s. 8, " Car- riers," as to Eailway Companies. The question, what sort of care the owner of property ought to take towards a person invited upon his premises, is governed by the ordinary rules stated ante, but is, I think, subject to some modification. If for his own benefit only, he is bound to take more than ordinary care (e)j i^ for the mutual benefit of both parties, ordinary care at the least (f); and if for the benefit of the person invited, perhaps something less than ordinary care (g). It is not within the scope of the 'present work to enter [60] into a discussion of the law of Nuisance. But it not unfreqnently happens that that which is a nuisance to the public at large, causes an injury to an individual distinct from that which he suffers in common with the public. For that which he suffers in common with the public he has no rem- (e) This will be treated otpost, Ch. (/) Campbell, 2nd ed., p. 61; orper- III., division 2, Neglect ol Owners of haps more — see post. Oh. III. Property. (9) This taUa within Oh. IV. ; but see post. Negligence toward one coming upon another's Iicuid. — The owner of property is liable lor Injuries caused by hia negligence to persons coming upon his land by invitation. — Davis v. Central Congregational Society of Jamaica Plain, 129 Mass. 367; 37 Am. Eep. 368; Nave v. Flack. 90 Ind. 205; 46 Am. IJep.205; Bennett©. Louisville, etc., R. Co., 102 TJ. S, 577; Freer «. Cameron,4 Eich. L. 228; Welch v. McAllister, 15 Mo. App., 492; Totten v. Phipps, 52 N. Y. 354; Campbell ». Portland Sugar Co., 62 He. 552; Latham v. Roach, 72 111. 179; Pastene v. Adams, 49 Cal. 87; Parker v. Barnard, 135 Mass. 116; 46 Am. Rep. 450; Learoyd v. Godfrey, 138 Mass. 315; Crogan v. Schiele, 53 Conn. 186; 21 Rep. 653; Phillips v. Library Co., 56 N. J. L. 307; 27 Atl. Rep. 478; Atlanta Cotton Seed Oil Mills V. CofCey, 80 Ga. 145; 4 S. E. Rep. 759. Express or Implied. — As where one comes npon business premises for business purposes. — Nave »; Flack, 90 Ind. 205; Freer©. Cameron, 4 Rich. L. 228 ; Welch v. McAllister, 15 Mo. App. 492 ; Dash v. Fitzhugh, 2 Lea, 307; Emery v. Minneapolis I. Ex., 66 Minn. 460; 57 N. W. Rep. 1132; Howe v. Ohmart, 7 Ind. App. 32; 33 N. E. Rep. 466; O'Callaghan COMING UPON LAND BY INVITATION. 73 [61] edy by action, ' even although he suffers in a greater degree (/i). Generally speaking, if a nuisance is created, and any (ft) WinteTbottom v. Lord Derby, L. E. 2 Ex. 316; 36 L. J. Ex. 194. V. Bode, 84 Cal. 489; 24 Fac. Bep. 269. See 29 Am. Law Beg. (m. s.) 24, n. Upon railroad premises. — Beard v. Conn., etc., B. Co., 48 Vt. 101; Knight V. Portland, etc., B. Co. 56 Me. 234 ; Fatten v. Chicago, etc., B. Co., 82 Wis. 524; Toledo, etc., B. Co. ». Crush, 67 111. 262; Sweeny ». Old Colony, etc., B. Co., 10 Allen, 368; Tobln v. Portland, etc., B. Co., 59 Me. 183. See post, pp. 390, 393. i Upon wharfs.— Low v. Grand Trunk Ry. Co., 72 Me. 313; 39 Am. Rep. 331 ; Wendell v. Baxter, 12 Gray, 494. See Carleton v. Franconia Iron, etc., Co., 99 Mass. 216; Franklin Wharf ». Portland, 67 Me. 46; Alberto. State, 66 Md. 325; Cleary v. Oceanic Steam Nav. Co., 40 Fed. Rep. 908; Philadelphia & B. R. Co. v. City of New York, 38 Fed. Rep. 159; Newall V. Bartlett, 114 N. Y. 399; 21 N. B. Rep. 990; The Calvin P. Harris, 33 Fed. 295; Heissenbuttel v. City of New York, 30 Fed. Rep. 456; Barker V. Abendroth, 102 N. Y. 406; 60 Am. Bep. 821. Lessee of wharf is liable, Delaney v. Pennsylvania B. Co., 78 Hun, 393; 29 N. Y. S. Bep. 226; Gluck V. Bidgewood Ice Co., 9 N. Y. S. Bep. 254; Smith v. Havemeyer, 32 Fed. Bep. 844; O'Eourke v. Peck, 29 Fed. Rep. 223. The liability extends to one letting a hall to which the public is in> vited.— Camp v. Wood, 76 N. Y. 92; 32 Am. Bep. 232. Or the proprietor. — Currier v. Boston Music Hall Ass., 135 Mass. 414. And to a fair association. — Selinas o. Vermont State Agr. Soc, 60 Vt. 249; 15 Atl. Bep. 11^. See Emery v. Minneapolis I. Ex., infra, and Latham «. Boach, post, pp. 268, 278. The owner of property has been held liable for injuries received by persons coming upon his land : — Where a police officer entered a building to inspect an elevator opening which a statute provided should be guarded by railings. — Parker o.\Bar- nard, 135 Mass. 116; 46 Am. Bep. 450. Where an officer entered premises at the request of a tenant'to arrest a person disturbing the pe/ice. — Learoyd v. Godfrey, 138 Mass. 316. See Byan v. Thompson, 38 N. Y. Superior Court, 133 ; Blatt v. McBarron, 161 Mass. 21 ; 36 N. E. Rep. 468. Where one had a right of way over the premises of another, and was injured in the exercise of that right. — Totten o.Phipps, 52 N. Y. 854. So where the invitation is implied from long user. — Graves v, Thomas, 95 Ind. 361; 48 Am. Bep. 727; Brown v. Hannibal, etc., B. .Co., 50 Mo. 461; Oliver v. Worcester, 102 Mass. 489; Carskaddon v. Mills, 6 Ind. App. 22; 31 N. B. Bep. 559; Phillips v. Library Co., 65 N. J. L. 307; 27 Atl. Sep. 478. 74 NEGLECT OF DUTIES EEQUIEING ORDINARY CARE. one is injured by the nuisance in a particular manner, and not in common with the public, an action of negligence ■will lie («■), This is the principle of the decisions as to injuries arising from excavations or obstructions upon or near to roads and paths upon which strangers have a right to be, and which we shall presently consider. Where there is no nuisance, but a person having come upon the land without invitation (k) (the owner having only passively acquiesced in his coming), sustains injury by reason of a mere defect in the premises, it has been held that the owner is not liable for negligence, for such person has taken all the risk upon himself {J). So where the de- ceased was employed to watch certain premises where the defendant employed workmen with a crane and bucket, and the deceased had nothing to do with the work, but got under the bucket and was killed, it was held that at most (i) Barnes v. Ward, poa; Honnsell v. (Z) Gaatret v. Egerton, L. R. 2 C. F. Smith, poet. — [Atlanta Cotton Seed Oil 371 ; 36 L. J. G. F. 191 ; Honnsell v. Smith, Mills V. Coffey, 80 Ga. 115; 4 S. E Bep. poet. See also Wilkinson v. Faiiie, 32 759; Thomas v. Henjes, 62 Hnn, 620; 16 L. J..Ex. 73;1. H. &0. 633 (dark passage 17. Y. S. Bep. 700.] and staircase) ; Bnrchell v. Hlckisson, (Je) The question of invitation Is 60 L. J. Q. B. 101 (child falling through treated of in Oh. III., s. 2. railings in bad repair). Where a person came upon the land of another without invitatioa to secure employment from the owner and was Injured by a machine used for raising ore which was defective but not obviously dangerous, it was held that he could not recover from the owner, though he could show that the owner might have ascertained the defect by the exercise of reasonable care. — Larmore v. Crown Point Iron Co., 101 N. T, 391; 64 Am. Kep. 718; 4 N. E. Rep. 752; reversing 81 Hun, 87. So where a dealer in foundry sand upon visiting defendant's foundry to sell sand was directed by a clerk to go in and find the foreman and while looking for the foreman in one of the buildings he was injured by the falling of an iron plate, a nonsuit was properly entered. — McLean v. Burnham (Pa.), 8 Atl. Rep. 23. See Galveston Oil Co. v. Morton, 7 Tex. 400; 7 S. W. Rep. 756. Where one took refuge in a public hotel to escape a storm, together with others attending a fair on the adjoining grounds, and the piazza of the hotel above the room in which plaintiff was gave away ^y reason of the great weight upon it, injuring the plaintiff, it was held that there was COMING UPON LAND WITHOUT INVITATION, 75 [62] he was a bare licensee and that there was no duty cast upon the defendant to see that the deceased did not no actionable negligence on the part of tlie defendant. — Converse v. Walker, 30 Hun, 696. "Where one took shelter from a storm in the station hoase of a railroad company, and while there was struck«and killed by a portion of the roof torn off by the wind, the company was held not liable in an action by his administratrix.— The Pittsburgh, etc., R. Co. v. Bingham, 29 Ohio St. 364. Where plaintiff went to defendant's newspaper office late in the even- ing tor the purpose of procuring the insertion of an advertisement and the counting room being closed he ascended to the upper floor, and in consequence of an Insufficient light fell into an elevator opening and was injured, it was held that he was a mere licensee to whom the de- fendant owned no duty to keep its premises safe.— Parker v. Portland Publishing Co., 69 Me. 173; 81 Am. Rep. i262. Where a boy ten years old went Into a lumber yard which had been frequently used as a passage way by the public, and was injured at a point fifty-four feet from the highway by the fall of lumber, it was held that no recovery could be had for injuries so received. — Vanderbeck v. Hendry, 34 N. J. L. 467. See also Jeftersonville, etc., R. Co. v. Gold- smith, 47 Ind. 43; Morgan v. Penn. R. Co., 7 Fed. Rep. 78. Where a railroad company owned a piece of unenclosed land traversed by a foot path leading from a public street to a house on another piece of unenclosed land adjoining owned by the company, and plaintiff, while passing over the path to the house where he boarded, shortly after dark, fell into a well near the pathway, the court held a cause of action was not made out by the pleading, saying that the plaintiff failed to show either the knowledge or permission of appellant so to use the lands, and distinguished the case from Graves v. Thomas (95 Ind. 361), "where the path had been used as a public side walk so as to give public rights in it as such." — The Evansville, etc., R. Co. v. Griffin, 100 Ind. 221. Where several owners of adjoining lots had established for their own convenience a road along one line thereof connecting with a public alley at one extremity and a street at the other, and one of the owners built a platform across it so low that one sitting on a wagon could not drive under it, and this had existed for many years, the public having used the Toad in that condition, and a man employed by one of the other owners in hauling merchandise on said road was killed by contact with the platform after dark, there being no light or other signal of warning, and he being ignorant of the platform, it was held no action would lie against the pro- prietor of the platform. — Cahill v. Layton, 67 Wis. 600; 46 Am. Rep. 46, See Stevens v. Nichols, (Mass.), 29 N. E. Rep. 1150. See, also post, p. 277, note. In Davis v. The Chicago, etc., Ry. Co., (58 Wis. 646), it was left to the 76 NEGLECT OF DUTIES EEQUIEING ORDINARY CARE. run into [63] danger {m), but it is not clearly stated whether he had any other or what duty towards him. (m) BatchelOT v. Fortesqne, 11 Q. B. D. 474. jury to determine whether there was negligence on the part of the serv- ants of the defendant leaving a steam boiler and engine upon its track unattended whereby plaintiff was injured by an explosion while walking upon the company's right of way which had been constantly used by the public for purposes of travel on foot with its knowledge and acquies- cence. The owner is under no obligation to keep his premises safe as against trespassers and bare licensees. As where a child came upon defendant's premises some distance from . the highway and fell into an uncovered cistern. — Hargreaves v. Deacon, 26 Mich. 1 ; S. F., Breckenridge v. Bennett, 7 Kulp, 95. See Gillespie v. McGowan, 100 Fa. St. 144. Or fell into an abandoned reservoir. — Clark V. City of Manchester, 62 ij. H. 577. Or had a foot crushed in a draw- bridge. — Maginnis v. City of Brooklyn, 1 N. Y. S. Rep. 522. Or was scalded by steam from a factory. — Mergenthaler v. Kirby (Md.) , 28 St. Rep. 1065. The rule is that ordinarily the owner of premises owes no duty of immunity to trespassers, thongh the latter be infants. — ^Frost V. Eastern R. E., 64 N. H. 220 ; 9 Atl. Rep. 790. See Fredericks v. Illinois Cent. R. Co., 46 La. Am. 1180; 15 So. Rep. 413; Elix v. Nieman, 68 Wis. 271 ; 32 N. W. Rep. 223; Galligan o. Metacomet Mfg. Co., 143 Mass. 527; ION. B. Rep. 171; Miller v. Fennsylvania R, Co. (Pa.), 8 Atl. Rep. 209; Ratte V. Dawson, 50 Minn. 454; 52 N. W. Rep. 965; McDonald v. Union Fac. Ry. Co., 35 Fed Rep. 38. So there was no liability where one went into a'toom of a factory intended exclusively for workmen and on the door of which there was a sign of " no admittance " and was injured. — Zoebisch v. Tarbell, 10 Allen, 386. Or, where a teacher and pupils came by permission of a corporation to visit its power house and machinery. — Benson v. Balti- more Traction Co., 77 Md. 535; 26 Atl. Rep. 973. Where one pays a friendly call on the operator of a telegraph at an ofSc'e where occasional messages are sent for pay although the office is owned and operated by a railroad for its own purposes, the railroad is liable to him only for gross negligence. — Woolwine ». Chesapeake & O. E. Co., 36 W. Va. 329; 155 S. E. Rep. 81. The owner is not liable where a laborer, employed in loading ice on board a vessel from a wharf , after flnishihg his work went on board the vessel to gratify his curiosity, anl fell down a hatchway and broke his leg. — Severy v. Nickerson, 120 Mass, 306. Where one In response to an alarm of fire ran through defendant's store and fell down an opening in the rear. — Kohn v. Lovett, 44 Ga. TRESPASSERS AND BARE LICENSEES. 77 [64] Thus, where the landlord of a house let it out in apartments and allowed the tenants to use the roof as a 251. See Gibson o. Leonard, 143 HI. 182; 32 N. E. Bep. 182; aflSiming 37 HI. App. 341. Or was otherwise Injured In discharging the duties of a fireman. — Woodmff o. Bowen, 136 Ind. 491; 34 N. E. Bep. 1113; Beeher 1). Daniels (B. I.), 29 Atl. Bep. 6. Where visitors of a tenant occnpying a honse in the rear of a lot in passing oat entered an nnfinished building instead of pnrsning an open way and were thereby injured. — Boulston v. Clark, 3 B. D, Smith, 366. See "Walker o. Winstanley, 155 Mass. 301 ; 29 N. E. Bep. 518. Where a father bringing a dinner to his son, who is in defendant's employ, falls into an nngaarded elevator shaft in defendant's bnilding and is killed, defendant was held to be not liable. — Gibson o. Sziepi- enski, 37 111. App. 601. Thus, it is apparent that a licensee or trespasser ordinarily enters land at his own risk. — Stevens v. Nichols, 155 Mass. 472; 29 N. E. Bep. 1150; Plnmmer v. Dill, 156 Mass. 426; 31 N. B. Bep. 128; Sterger V. Vanslclen, 132 N. E. Bep. 499; 30 N. E. Bep. 987; De Gray v. Aiken, 43 La. Ann. 798; 9 So. Bep. 747; Sullivan v. Boston & H. B. Co., 156 Mass. 878; 31 N. E. Bep. 128; Caniff v. Blanchard Nav. Co., 66 Mich. 638; 33 N. W. Bep. 744; Metcalfe v. Canard S. S. Co., 147 Mass. 66; 16 N. E. Bep. 701; Lacketo. Lntz, 94 Ky. 287; 22 S. W. Bep. 218; Hector v. Boston E. L. Co., 161 Mass. 558; 37 N. E. Bep. 773; Ander- son o. Scully, 31 Fed. Bep. 161; Elannigan o. American Glucose Co., 11 N. T. Bep. 688; Trask c. Shotwell, 41 Minn. 66; 42 N. W. Bep. 699; Truax v. Chicago, etc.. By. Co., 83 Wis. 547; 53 N. W. Bep. 842; Gibson V. Leonard, 143 111. 182; 32 N. E. 182. Where a chUd of a tenant of a tenement house got out on the platform of a Are escape attached to the building and fell through a defective trap door. — McAlpine v. Powell, 70 N. Y. 126; 26 Am. Bep. 555. See, gen- erally, Union Stock Yard, etc., Co. o. Eourke, 10 111. App. 474; Magin- nis p. City of Brooklyn, 7 N. T. S. Bep. 194; Fredericks o. Ulinois Cent. B. Co., 46 La. An. 1180; 15 So. Bep. 413. But an exception to tills rule exists in the case of children of tender years where the danger is exposed and such as might be reasonably apprehended. As where an infant strayed npon an nnfenced lumber yard and was killed by the falling of lumber negligently pUed.— Bronson v. Labrot, 81 Ky. 638. See Earl v. Crouch, 6i Hun, 624; 16 N. Y. S. Bep. 770; 131 N. Y. 613; 30 N. E. Bep. 864. Where a boy eight years old was injured by meddling with a parcel of dynamite in an unenclosed shed near his father's land. — Powers v. Harlow, 53 Mich. 507- But where a child forced open a fastened window and procured a torpedo, deposited by a railroad in its section 78 NEGLECT OF DUTIES REQUIRING OKDINAEY CAKE. • drying room for the purpose of drying their linen, and the plaintiff went upon the roof for that purpose and slipped against the railing round the edge of the roof which let him through, being out of repair, Lord Coleridge distinguished M'Martin v. Hanay {n), where there was a comnaon stair- case to several flats, by saying that the staircase was a necessary part of the holding, and it was the landlord's («) 10 Court of Sess. Cas., 3rd Series, Tbe landlord was not liable for tbe in- 411.— [Atbree-year-oldoblldfellthrongb Jury.— Miller v.Woodhead, 104 N. Y.471; a sky-light In a flat roof used In drying 11 N. B. Eep. 57.] clotbes by a tenant wbom it was visiting. house, and was injured by the explosion of the torpedo, the railroad was not liable. — Slayton ». Freemont, etc., B. Co., 40 Neb. 840; 59 N. W. Eep. 510. v5j This exception is often invoked where children have been injured by meddling with dangerous machinery exposed to their approach and often LV ^ attractive to them, as railroad turn-tables, engines, street cars, etc. InyT such cases the question of negligence is generally left to the jury. — Hydraulic Works Co. w. Orr, 83 Pa. St. 332; Birge v. Gardiner, 19 Conn. 507; Railroad Co. v. Stout, IZWaU; 657;Keefe o. Milwaukee, etc., E. Co., 21 Minn. 207; Whirly o. Whitman,l Head. 610; Mullaney v. Spence,15 Abb. Pr. 319 ; G. C. & Santa Fe Ey. Co. v. Evansich, 61 Tex. 3, 24 ; Id. 67 Tex. 126; Houston & T. C. Ry. Co. v. Simpson, 60 Tex. 103; A. & N. E. E. Co. ». Bailey, 11 Neb. 332; Nagel «. The Missouri Pac. Ey. Co., 75 Mo. 663; 42 Am. Eep. 418; Kansas Central Ry. Co. v. Fitzsimmons, 22 Kan. 686; Kolsti V. Minneapolis, etc., Ey. Co., 32 Minn. 133; Eobinson v. Oregon, etc., Ey. Co., 7 Utah, 493; 27 Pac. Eep. 689; Moynihan v. Whldden, 143 Mass. 287; 9 N. B. Eep. 645; Walsh «. Fitchburg R. Co., 67 Hvm, 604;^ 22 N. Y. S. Eep. 441; Ferguson v. Columbus & E. Ey. Co., 77 Ga. 102; Gulf, C. iSs S. F. Ry. Co. v. Styron, 66 Tex. 421; 1 S. W. Rep. 161; O'Malley v. St. Paul, M. & M. Ry. Co., 43 Minn. 289; 4SN. W. Rep., 440; O'Conner v. Illinois Cent. E. Co., 44 La. An. 389 ; 10 So. Rep. 678 ; Gun- derson v. N. W. Elevator Co., 47 Minn. 161 ; 49 N. W. Rep. 694 ; Daniels V. New York, etc., R. Co., 164 Mass. 349; 28 N. E. Rep, 283; Barrett v. Southern Pac. Co., 91 Cal. 296; 27 Pac. Rep. 666; Day v. Essex Electric St. Ry. Co., 159 Mass. 238; 34 N. E. Rep. 186; Schmidt i>. Kansas City Distilling Co., 90 Mo. 284; 1 S. W. Rep. 866; Gulf, C. & S. F. Ry. Co. o. McWhirter, 77 Tex. 356; 14 S. W. Eep. 26; Ft. Worth & D. C. Ry.Co. ■e. Robertson (Tex.), 16 S. W. Eep. 1093; Id. v. Measles, 81 Tex. 474; 17 S.W. Rep. 124; Callahan v. Eel River & E. E. Co., 92 Cal. 84; 28 Pac. Eep. 104. See Webb's Pollock on Torts, pp. 584 et seq.; and 20 C. L. J. 400. TKtSPASSERS AND BARE LICENSEES. 79 duty to keep it safe. It was an implied condition in the bargain. And the court held that the defendant was not liable (^o). But such owner will be liable for anything in the na- ture of a trap upon the premises, known to him, and as to which he gives no warning to the licensee (p). He must not do anything to alter the premises, so as to be likely to cause injury, without notice to the licensee (g'). Upon the^ whole I incline to think, with Mr. Campbell (r), that the owner is bound to take ordinary care with respect to a bare licensee. The question is, as I think, one of great difficulty. It is said that the licensee being there merely for his own advantage can only demand that slight care which a gratuitous bailee is bound to display, and so far the proposition is correct ; but I am not sure, if a gra- tuitous bailee were to indicate a place of deposit, whether he would not be undertaking that that particular place was reasonably fit for the deposit, and if so, a similar agreement would apply to an owner who gives leave to come upon [65] his property, viz. : that he has undertaken that his property is in some degree fit for the licensee to use. If this be so, it seems that he ought to take ordinary care. The courts, however, have distinctly held that the owner is only liable for "gross" negligence, because he is in the same position as a gratuitous bailee (5) ; but I am inclined to think the assumption is not accurate. I think that the question is only further obscured by insisting that the owner must be guilty of an act of comTnission to render him liable to the licensee (<). It may be very frequently the (o) Ivay V. Hedges, 9 Q. B. D. 80. gapra.— [Biley e. Llssner, 160 Mass. 330; (p) Sontbcote e. Stanley, 1 H. & N. 35 N^. E. Bep. 1130.] 247; Seymosr v. Uaddox, 16 Q. B. 326; (r) pp. 119-122. See also Wharton, b. White V. France, L. E. 2 C. P. D. 308; 46 349. L. J. C. F. 823; Bolch r. Smith, 7 H. & N. («) Moffatt v. Bateman, L. B. 3 C. P. 736; Pickard v. Smith, 10 C. B. K. S. 115; Corby v. Hill, mpra; Gantret v. 470. Egerton, mpra. IS) Corby v. HIU, 4 C. B. if. S. 556; 27 («) See Sonthcote r. Stanley, U H. & L. J. C. P. 318; Gaatret v. Egerton, N. 247; Corby v. Hill, aupra. 80 NEGLECT OF DUTIES KEQ0IKING ORDINARY CARE. case that omissions are slighter neglects than acts of com- mission; but they may very well be the contrary, and sometimes are so. If the neglect be of a grave and obvious character, it would matter nothing whether it was an omis- sion or commission. For instance, it would matter nothing whether a signalman omitted by grave and obvious negli- gence to pull the handle to direct an express upon its proper line, or whether he negligently pulled the wrong handle. Where there is something done by the owner which is in the nature of a nuisance or of a wanton injury, he will be liable to an action for negligence even by a trespasser (m) as if an owner of premises with great recklessness shot a trespasser, or if the owner set spring guns upon his prem- ises and injure a trespasser (a;). But where a trespasser took shelter from a storm in a ruinous house not fenced off from the road, and a wall fell upon him and injured him, it was held that he could not recover (y). Upon this principle it has been held that where an owner [66] or occupier of lands makes an excavation upon his land so near to a public highway as to be dangerous under ordinary circumstances to persons passing by, it is his duty to take reasonable care to guard such excavation ; and he is liable for injuries caused, even . if such persons are consciously {z) or unconsciously (a) straying from the way (6). Where the excavation is at a considerable distance no («) DeKg V, Midland Ey., 1 H. & N. Aldrloh v. Wright, 63 N. H. 396; 16 Am. 773 at p. 780. Sep. 339] (K) Bird V. Holbrook, i Bing. 628; (,y) Lary«. Cleveland Ey. Co., 78 Ind. Wooten V. DawMns, 2 O. B. N. S. 412. 323; 41 Amer. Bep. 572. [Hooker v. MlUer, 37 la. 613 ; State v. (z) Blyth v. Topham, Cro. Jao. 168 ; Moore, 31 Conn. 479, bat see Johnson v. Enlght v. Abort, 6 Pa. St. 472. Patterson, 14 Conn. 1, and Gray v. (a) Honnsell v. Smith, 7 0. B. N. 8. Ooombs, 7 J. J. Marsh. 478. A person 731 ; Barnes ». Ward, 9 0. B. 392. may protect his shop from bnrglary by C*) It *s no answer to say that some setting np a spring gun therein. State other persons are bonnd by statute to V. Moore, 31 Conn, 479.] — IChnrchlll v. fence the highway. Welter i;. Dunk, 4 Hnlbert. 110 Mas«. 42 ; 14 Am. Eep. S78; F. & P. 298. See Elliott on Eoads and Streets, p. B42. EXCAVATIONS ON LAND. 81 such care need be taken. What is a considerable distance it is impossible to say, and, in truth, each case depends upon its own facts (c). A person who negligently or intentionally set fire to anything on his own land was liable at common law to an- other, if the fire extended to his property and injured it (d), and the statute 6 Anne, c. 31, and the Buildings Act, 14 Geo. m. c. 78, which refer only to accidents, do not pro- tect a person guilty of such culpable negligence (e). Where a hay-rick was carelessly put together and ignited, doing damage to the plaintiff's cottage, the jury was directed that the plaintiff could recover in an action for negligence (f). It has been held in America that a per- son who uses a steam-engine on his own land ought to use the ordinary means of preventing the sparks from doing injury to his neighbor (g); and in another case where a man set fire to brush and the wind blew the sparks upon his neighbor's land, it was said that he was liable whether he might or might not have reasonably anticipated the [67] particular manner m which the fire was actually communicated (h) ; and so in another case (i) the defend- ants were held responsible although they could not reason- ably have anticipated that such injury as occurred would be (c) InHaidcs8tle«.SoatliToTk3.Ey., (d) TearBook,2H.4f. ISpl. 6. 4 H. & N. 67, and in Biaks r. S.T. By., 3 (e) FUllter v. FUppard, 11 Q. B. 347; B. & S. 244 ; 32 L. J. Q. B. 28, twenty-fonr Taberfield v. Stamp, 1 Salk. 13, note (a), f eet waa held to be sncb. InanAmeri- (/) Vaaghanc.Menlove, 7C.&P.525; cancase,ODeOTtwofeetofftheToadwa3 3 Btng. N. G. 468; for Injirries from ez- held sufficient to protect the defendant plosions of gaa, see Ch, ni. , s. 5. from an action, Howland v. Vincent, 10 (jr) Teall v. Barton, 40 Barb. 137. Mete 391 [coBfc-o Beck v. Carter, 68 N. (ft) Higgins e. Dewey, 107 Mass. 494. T. 283] ; bat this case is donbtfnl anthor- See Averitt r. Mnrrell, 4 Jones, N. 0. ity. See Shearman, p. 699; Bigelow on 323; Fabo r. Beicbart, 8 Wis. 255. Torts, p. 698. As to excavations, etc., (t) Smith v. L. & S, W. By. Co., infiv. made by corporations acting under stat- ntory powers, see Ch. m., s. 6, post. The owner is liable for iDjories cansed by excavations upon his land near on the highway. — Jones o. Nichols, 46 Ark. 207; 55 Am. Bep. 575. In Beck v. Carter (68 N. Y. 283) the excavation was ten feet from the 6 82 NEGLECT OF DUTIES EEQUIBING ORDINARY CARE. [68] caused by the fire (^k). In England the general prin- ciple (Z) of the common law that when a man brings upon (ft) As to the spreading of a fire (Z) The keeping of savage animals Is beyond a point where the plaintiff him- the best known lUuatratlon of this prln- self might have stopped It, see Knbn o. olple. 8eepost.t Jewett, ante, line of an alley way, bnt the intervening space, the owner permitted to be nsed as a public highway. In Vale v. Bliss (60 Barb. 318} the excavation was "two feet two inches back from the street line, and seven feet six inches back from the inner line of the sidewalk, there being a space of five feet fonr inches, which although forming a part of the street, had been devoted to the pur- pose of a court yard. In Norwich v. Breed (30 Conn. 635) the excavation was several feet from the highway. In Toung v. Harvey (16 Ind. 814) the owner of an unfinished 'well in an unenclosed lot in a city was held liable for injuries caused by plain- tiff's gelding falling therein. (See Haughey v. Hart, 62 la. 76 ; contra Turner v, Thomas, 71 Mo. 696.) In Stratton v. Staples, 69 Me. 94, there was an unguarded descending roll way within one foot of the sidewalk leading to a basement. In Homan v. Stanley (66 Fa. St. 464) a cellar excavation had been carried to the curbstone for the purpose of constructing a vault under the street. (See also Congreve v. Smith, 18 N. Y. 79, and Anderson v. Dickie, 1 Bobt. 238.) In all these cases defendant was held liable for resulting injuries. Where excavations are made in the highway the adjacent owners making them are liable for injuries caused thereby. In Durant v. Palmer, (5 Dutch. 644) there was an open area in front of defendant's premises for the purpose of a stairway and defendant was held liable for injuries caused by plaintiff falling in it. (See also Bues- ching«. St. Louis Gas-Light Co., 73 Mo. 219; 89 Am. Bep. 603; to the same effect see McGuire v, Spence, 91 N, Y. 303; 42 Am. Bep. 601, note.) Abutting owners are liable for injuries caused by defective or improp- erly kept coal holes in the sidewalk (Wolf v. Eilpatrick, 101 N. Y. 146; 64 Am. Bep. 672. See post, p.309J ; or a scuttle-hole (Calder v. Smalley, 66 la. 219; 65 Am. Bep. 270); or a manhole (Wells o, Sibley, 9 N. Y. S. Bep. 843) ; or other openings in the street or sidewalk. — Smith v. Byan, 8 N. Y. S. Bep. 853; Hughes v. Orange Co. M. Assoc, 66 Hun, 396 ; 10 N. Y, S. Bep. 262; Brezel v. Powers, ( Mich. ), 45 N. W. Bep, 130; Crawford v. Wilson & B. Mfg. Co., 28 N. Y. S. Bep. 514 ; 8 Misc. Bep. 48, In Crogan v. Schiele (53 Conn. 186 ; 65 Am. Kep. 88 ; 33 Alb. Law Jour, 110), A. owned a factory standing back about ten feet from the line of DAMAGE BT FIKE. 83 his land, or ases there a thing of a dangerous nature for his own advantage (m) he must keep it in at his own peril, and that he is liable for the consequences if it escapes and injures his neighbor without any negligence being alleged, has been fully established («). Such cases are, therefore, outside of the scope of the present work, when it has once been determined that the thing kept is so dangerous as to come within the rule. The question, what is a dangerous thing? must be one for the jury. Whether the thing is sufficiently dangerous to be a nuisance and to be kept at a man's peril must depend on the locality, the quantity, and the surrounding circumstances (o), and I am not aware of any case which has decided that setting fire to weeds or agricultural produce comes within the rule. In the case of sparks from railway engines, it has been held that a railway company are liable at common law if they do not prevent their sparks from doing injury, and the legislature has interfered to protect the use ; and the users of such engines (m) Anderson v. Oppeniieimer, post. Amer. Bep. 654 (gunpowder in adjoining (n) Jones V. Festinlog By. Co., Ij. B. 3 building) .— [Hlne v. Cosblng, 53 Hon, Q. B. 733; 37 L. J. Q B. 211 (sparks from 519; 6 N. Y. S. Bep. 850; Van Fleet v. engine) ; Fletcher v. Bylands, L. B. 3 H. Kew York, etc., B. Co., 7 N. Y. S. Bep. Ij. 330; 37 L. J. Ex. 161 (water in mine). 636.] (o) Heeg V. LlcM, [80 N. Y. 579] ; 36 the pnblic pavement and extending along the pavement about eighty feet. The place between the street and the line of the building had been so paved that there was nothing to indicate where the street line ended; and in front of the building he had erected a porch through which entrance to the building was effected. B. who was not acquainted with the sur- roundings went to the factory after dark in search of her child and in trying to find the door fell into an unguarded area and was severely in- jured. It was held that B. was not a trespasser and that A. was liable for negligently maintaining an unguarded area. The court said Howland v. Vincent, 10 Mete. 371, was discarded as an authority in Norwich o. Breed, 30 Conn. 647; denied in Beck v. Carter, 68 N. T. 284; adversely criticised in Bigelow on'Torts, 686, 689, and pro- nounced in Shearman & Bedfleld on Negligence, § 549, a " decision which it is difficult to justify." Mishler ». O'Grady, 132 Mass. 139, was re- ferred to as being in accord with the rale announced in Norwich v. Breed, supra. 84 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. are then acting in pursuance of parliamentary powers, and [69] only liable if negligence is proved (p). In Tuber- field V. Stamp (g) it was held by three judges out of four, upon the principle that every man must use his own prop- erty so as not to hurt another, that a farmer was liable in an action for negligence for injury done to corn in another's close by burning stubble, unless he proved that a sudden storm had risen. Turton, J., dissented, on the ground that such a doctrine would discourage industry. The allegation that he negligenter custodivit was (it is presumed) proved, and if so the decision seems clearly sound on that ground ; but no doubt it can be supported on the principle stated in the text, viz., that the defendant was bound to keep the fire on his own premises. The American eases, which will be found in " Shearman on Negligence," Chapter XX., and •* Wharton on Negligence," Book III., Ch. V., are instructive and very confiicting, but to discuss them would take up too much space. If a man make a fire in a field " in a sequestered* spot and on a quiet day then there is no inculpatory negligence, otherwise on a windy day, when buildings are so near as to make ignition probable" (r); and in like manner where a brewery being near to the plaintiff's factory, was negligently allowed to throw off sparks in a populous place it was held that the defendant had a higher degree of care cast upon him than if the brewery had been built in the country or in a part of the city where there were no houses in its immediate vicin- ity, and that he ought to make himself acquainted with ip) Vanghan v. Taff Vale By. Co., 5 (g) Tnbeifield v. Stamp, 1 Salk. 13; H. & K..685 ; Brand v. HammeiBmlth By. Vanghan v. Afenlove, 3 New Cas. 468. Co., L. E. 4 H. L. 171; Trueman v. L. B. (r) Wharton on Negligence, s. 865; & S. 0. By. Co., 29 Ch. D. 423. The first see FUliter v. Phlppard, }1 Q. B. 347. — case Is said by Bramwell, L. J., to have [By the common law, the owner of a been wrongly deqlded; see Powell*, building not exposed in some particular Fall, infra. In the case ol locomotives way to the danger of Are, Is not required under the Highway Acts the owners are to provide extra arrangements for the not protected. See Powell v. Fall, 5 Q. escape of the occupants. — Pauley v. B. D. 697 ; 49 L. J. Q. B. 428. SteSm Gauge & Lantern Co. , 131 N. T. 90 ; 29 N. E. Bep. 999; 30 N. E. Bep. 865.] EAILWAY riKES. 85 the most scientific ways of preventing the emission of sparks, etc. (s). The prevailing rule in America seems to be that negligence is a necessary element in the action. [70] It is obvious that what may be very negligent in a dry or stormy country may be consistent with reasonable (8) Gagg V. Vetter, 11 Ind, 228. Negligent Fires. — By the old EngUsIt law the starter of a fire was liable for, all resulting damages although guiltless of negligence, unless he could show that the fire was excited by some superior cause which he could neither resist nor control. To soften the rigor of this rule statutes were passed making the liability to depend upon negligence (6 Anne, c. SI, § 67; Amended 14 Geo. Ill, c. 78, § 76). See Webb v. B. B. Co., 49 N. Y. 420; Scott v. Hale, 16 Me. 326. The text correctly suggests that in America the rule is that negligence is a necessary ele- ment in the action. Where the fire is lawful no presumption of negligence arises from setting it outj and the burden of proof of negligence is on the plaintiff. — Shearman & Bedf. on Neg. 329; Sturgis v. Bobbins, 62 Me. 289. As where fires are set for clearing land.— Hewey ».Nourse, 54 Me. 256 ; Miller o. Martin, 16 Mo. 508 ; Dewey v. Leonard, 14 Minn. 153. Where stich fires are kindled with requisite care no liability arises for accidental injuries occasioned by their spreading to other lands. — Catron V. Nichols, 81 Mo. 80. It is otherwise where they are negligently kept.— Perley ». East. B. Go., 98 Mass. 414. Although plaintifC set a back fire to protect his property. — McEenna v. Baessler, 86 la. 197; 53 N. W. Bep. 103. Where defendant set fire to grain stubble after ploughing around his field to prevent Its spread, and attempted to extinguish it, l)at failed to do so, and after smouldering for two days it burned afresh and was driven by the wind upon plaintiff's property two miles distant and destroyed it, it was left to the jury to determine whether the injury was too remote to warrant a recovery. — Erippner v. Biebel, 28 Minn. 139. But where a fire spreads from defendant's right of way to plaintifE's premises where plaintiff's cattle wander into it and are burned, the Injury is the proximate result of the escape of the fire and defendant is liable. — Chicago, St. L. & F. B. Co. v. Barnes, 2 Ind. App. 213; 28 N. £. Bep. 328. See Fikes, ante, p. 45. In some of the States, on account of the danger attending the spread of fires in prairie and wood lands, laws have been passed prohibiting the netting out of such fires nnder certain restrictions. — 1 Thomp. Neg., p. 150, citing statutes of North Carolina, Missouri, Illinois, Iowa and Con- necticut. A different rule is applicable to railroad companies. The setting oat 86 NEGLECT OF DUTIES REQUIRING ORDINARY CABB. care in [71] a hamid and mild climate. In Smith v. South Western Railway Company (an English case), of fires by railroad companies is prima fade negligence. But wben authorized by statute to propel cars by steam, and every reasonable pre- caution is taken to prevent the escape of fire, railroad companies will not, in the absence of negligence, be responsible for consequent injuries. — Fhila., etc.,B. Co. v. Hendrickson, 80 Pa. St. 182; Kenney o. Hannibal, etc., E. Co., 80 Mo. 573; Atchison, etc., E. Co., 31 Kan. 622; Whi' 3 u. Chicago, etc., Ey. Co., 1 S. D. 826 ; 47 N. W. Rep. 146 ; Gowen v. Glaser, (.Pa.), 10 Atl. Bep. 417. In several of the States absolute responsibility is imposed by statute upon railroads for fires set by their locomotives. See such statutes con- strued in Mathews o. St. Louis & S. F. By., 121 Mo. 298; 24' S. W. Bep. 691; Hunter D. Columbia, N. &L. B. Co., 41 S. C. 86; 19 S. E. Bep. 197 j Martin v. New York & N. E. E. Co., 62 Conn. 331; 25 Atl. Bep. 239; Louisville, N. O. & T. By. Co. v. Natchez, 67 Miss. 399; 7 So. Bep. 360. Bailroad companies must adopt the best approved appliances in known use to prevent the setting out of fires. — Bright Hope B. Co. v. Rogers, 76 Va. 443 ; HofE ». West Jersey B. Co., 45 N. J. L. ;i01 ; Jennings V. Pennsylvania B. Co., 93, Pa. St. 337; Chicago, etc., B. Co. v. Pennell, 94 m, 414; Kurz & Huttenlocher Ice Co. v. Milwaukee ■•'.. N. B. Co., 84 Wis. 171 ; 63 N. W. Bep. 850; Cincinnati, I. St. L. & C. By. Co. v. Smock^ 133 Ind. 411; 33 N. B. Eep. 108; Hagen v. Chicago, etc., R. Co., 86 Mich. 616; 49 N. W. Bep. 509; Henderson, Hull & Co. v. Phila. & E. Co., 144 Pa. St. 461; 22 Atl. Eep. 851 ; 28 W. N. C. 479 ; Chicago, K . & I. B. Co. o. Goyette, 32 111. App. 674, affirmed in 24 N. E. Eep. 549; Mills v. Chicago, etc., By. Co., 76 Wis. 422; 45 N. W. Eep. 225; Chicago & A. R. Co. ■». Hunt, 24 111. App. 644; Metzer o. Chicago, etc.. By. Co., 76 la. 387; 41 N. W. Bep. 49. Failure to use a spark arrester has been held negligence. — Beddell ». Long Island B. Co., 44 N. Y. 367. See Lawton v. Giles, 90 N. C. 374; and using a defective one. — Louisville, etc., B. Co. v. Bichardson, 66 Ind. 43j Eddy V. Lafayette, 49 Fed. Bep. 807; 4 IT. S. App. 247; 1 C. C. A. 441; Missouri Pac. By. Co. v. Bartlett, 81 Tex. 42; 16 S. W. Eep. 638; Byan «;.Gros8,68Md. 377; 12 Atl. ilep.115; 16Atl. Eep. 302; Fllnn ».New York, etc., E. Co., 142 N. Y. 11 ; 36 N. E. Bep. 1046 ; Missouri Pac. Ey. Co. o. Texas & P. By. Co., 41 Fed. Eep. 817. Or one ajai tf , ,^ burning coal on an engine burning wood. — St. Jo^ejib. ( to., B. Co. v. Chase,* 11 Kan. 47; Chicago, etc., B. Co. u. Qaintance, 58 111, 38U; Chicago & E. I. E. Co. V. Ostrander, 111 Ind. 269; 19 N. E. Bep. 110. In Hoff o. West Jersey B. Co. (46 N. J. L. 201), il V r '.d that if a rail- road company use a spark arrester of an approved pj,£tern in general use and which upon inspection by a skillful mechanic appears to be In good condition, the company will not be liable for damages done by sparki^ thrown out by it. The court say: " There is no hrnach of duty on the RAILWAT FIRES. 87 anie, Ch. I. [72] where the fire extended from the railway line across a hedge and stubble field to the part 01 the company, if In the choice of sncb instrument as the one in question, it selects one which is in common use and which has been approved by experience, although it may appear that there is some new invention which had been but partly tried in practice, and which it may be, will supersede the contrivance adopted." In Bright Hope Ry. Co. v. Eogers (76 Va. 443), the court say: " Em- ploying so dangerous an agency as steam, a railway company is liable for all injuries caused by its omission to employ the best mechanical con- trivances and inventions in known use to prevent the burning of private property." A railroad company must not permit combustible matter to accumulate near its track. It is not negligence p&r se, however, for a railroad com- pany to permit dry grass and vegetation to remain on its right of way. That is a fact from which negligence may be inferred. — Gibbons v. Wis- consin Valley K. Co., 68 Wis. 335; Bright Hope R. Co. v. Rogers, 76 Va. 443 ; White v. Missouri Pacific R. Co. , 31 Kan. 280 ; Clarke v. Chicago, etc., R. Co., 38 Minn. 45S; 20 Rep. 148; Jones v. Michigan Cent. R. Co., 59 Mich. 437; 26 N. W. Rep. 662; Texas & P. Ry. Co. v. Gaines, (Tex. Civ. App.), 26 S. W. Rep. 433; St. Johns & H. R. Co. ». Ragsom, 33 Fla. 406; 14 So. Rep. 892; Genung v. New York, etc., K. Co., 66 Hun, 632; 21 N. Y. S. Rep. 97; Chicago, M. P., M. & O. Ry. Co. v. Gilbert, 52 Fed. Rep. 711; 3 C. C. A. 264; 10 U. S. App. 375; Martin v. New York, etc., Ry. Co., 62 Hun, 181 ; 16 N. T. S. Rep. 499 ; St. Louis & S. F. Ry. Co. V. Richardson, 28 Pac. Rep. 183; 47 Kan. 517; Billings v. Fitchburg R. Co., 88 Hun, 605; 11 N. Y. S. Rep. 837; Moore v. Chicago, etc., Ry. Co., 78 Wis. 120; 47 N. W. Rep. 273 ; Gram v. Northern Pac. R. Co., 1 N. D. 252; 46 N. W. Rep. 972; Lake Brie & W. R. Co. v. Cruzen, 29 111. App. 212; Kelsey v. Chicago, etc., Ry. Co., 1 S. D. 80; 45 N. W. Rep. 204; Rost V. Missouri P. Ry. Co., 76 Tex. 168; 12 S. W. Rep. 1131 ; O'Neill v. New York, O. & W. Ry. Co., 45 Hun, 458; Diamond v. Northern Pac. R. Co., 6 Mont. 580; 13 Pac. Rep, 367; Indiana, B. & W. Ry. Co. v. Over- man, 119 Ind. 538; 10 N. E. Rep. 575. Held negligence per se in Gulf, C. & S. F. Ry. Co. V. Rowland (Tex. Civ. App.), 23 S. W. Rep. 421. Burden of Proof. — In some States where Are is communicated by sparks from a locomotive to adjacent lands, a presumption of negligence arises, and the burden of proof is on the company to show that all reason- able precautions were taken to avoid injury. — Kinney ». Hannibal, etc., R. Co., 70 Mo. 243; Sappington v. Missouri Pacific R. Co., 14 Mo. App. 86; Simpson «. Tenn., etc., E. Co., 5 Lea, 456; Spaulding v. Chicago, etc., R. Co., 33 Wis. 582 ; Longabaugh v. Virginia City R. Co., 9 Nev. 271; Burlington, etc., R. Co. v. Westover, 4 Neb. 268; Union Pac. Ry. Co. V. Keller, 36 Neb. 189; 54 N. W. Rep. 420; Wabash R Co. v. Smith, 42 111. App. 527; Polhaus v. Atchison, etc., R. Co., 45 Mo. App. 153; 88 NEGLECT OF DUTIES REQUIEING ORDINABT CASE. plaintiff's cottage, the court [73] said' that the railway company having been negligent in leaving cut grass upon Johnson v. Northern Pac. B. Co., 1 N. D. 351 ; 48 N. W. Rep. 227^ Green Bidge R. Co. v. Brinkman, '61 Md. 52; 20 Atl. Bep. 1024; Louisville & N. R. Co. V. Reese, 85 Ala. 497; 6 So. Rep. 283; Tilled o. St. Louis & S. F. Ry. Co., 49 Ark. 635; 6 S. W. Rep. 8; Engle v. Chicago, etc., Ry. Co., 77 la. 661; 37 N. W. Rep. 6. In others, this presumption is established by statute. — Babcock v. Chicago & Northwestern R. Co., 62 la. 593; Karsen v. Milwaukee, etc., R. Co., 29 Minn. 12; Delaware, etc., R. Co. v. Salmon, 39 N. J. L. 299; Cleveland v. Grand Trunk R. Co., 42 Vt. 449; Baltimore, etc., R. Co. %. Dorsey, 37 Md; 19; Chicago, etc., B. Co. v. McCahill, 56111.28; East Tenn., V. & G. Ry. Co. v. Hesters, 90 Ga. 11; 15 S. E. Rep. 828; Denver, T. & G. R. Co. V. DeGraff, 2 Colo. App. 42; 29 Fac. Rep. 664 ; Union Pac. By. Co. «. Arthur, 2 Colo. App. 159; 29 Pac. Rep; 1031; Chicago & B. I. B. Co. V. Goyette, 133 111. 21; 24 N. E. Rep. 649; Laird v. Ballroad,62 N. H. 264. Evidence. — The fact that after the passage of a train dry grass and other combustible materials were discovered burning along the line of the road, is not of itself evidence of negligence on the part of the com- pany. — Beading, etc., R. Co. v. Latahaw, 93 Pa. St. 449. But it is sufficient to warrant the submission of the issue to the jury. — Einney o. Hannibal, etc., R. Co., 80 Mo. 673. Where Are was started in the grass along the right of way' a few min- utes after an engine had passed, and it was shown that no person and that no Are was in the vicinity at the time, it was held that this was suffi- cient to justify the jury in finding that the flre was scattered or thrown from the engine. — Karsen v. Milwaukee, etc., R. Co., 29 Minn. 12. See San Antonio & A. P. Ry. Co. ». Cakes (Tex. Civ. App.), 26 S. W. Rep. 1116. Where a wooden powder mill, painted over with flre-proof paint, with- ont openings on the side next to a railroad track about 200 yards distant, exploded while enveloped in an extraordinary cloud of smoke blown from a passing train, and injured plaintiS, it was held by a divided court that there was evidence to support the finding ol the jury that the explosion was caused by sparks from the train.— Babcock «. Fitchl\urg B. Co., 140 N. Y. 308; 35 N. E. Rep. 696; affirming 22 N. Y. S. Rep. 449. Though evidence of a single fire by a passing engine can not be suffi- cient to warrant a finding of negligence, yet when it appears that at or about the same time several fires are by the same engine thus caused, and that only about that time were any fires caused by such engine, and that an engine in good order and properly managed ordinarily causes fires, the jury is justified in finding negligence.— Missouri Pacific R. Co. V. Eincaid, 29 Kan. 654. [But where in an action for damage caused by fire alleged to have been SAILWAY FIRES. . 89 the bank ia dry weather, were [74] answerable for all the consequences. The company weTe authorized to run set out by an engine, there is no evidence tliat the fire was caused by any other than one of two engines, evidence as to other fires along the same line ol road caused by locomotives other than the two in question is inadmissible.— Gibbons v. The Wisconsin Valley E. Co., 68 Wis. 335. But the majority ol the decisions are to the contrary, as to princi- ple.— Gulf, C. & S. F. By. Co V. Johnson, 54 Fed. Kep. 474; Chicago, St. P., M. & O. Ry. Co. v. Gilbert, 62 Fed. Bep. 711; 3 C. C. A. 264; 10 IT. S. App. 875; Northern Pac. B. Co. v. Lewis, 51 Fed. Bep. 658; 2 C. C. A. 446; 7 U. 8. App. 254; Smith v. Chicago, etc., By. Co., 4 S. D. 71; 55 N. W. Bep. 717; Koontz v. Oregon By. & Nav. Co., 20 Ore. 3; 23 Pac. Bep. 820. Contributory Negligence. — The owner of land contiguous to a rail- road track is not obliged to keep his land clear of combustible matter. — Delaware, etc., Co. v. Salmon, 39 K. J. L. 299; 23 Am. Bep. 214; Salmon V. Delaware, etc., K. Co., 38 N. J. L. 5; Phila., etc., B. Co. «. Schultz, 93 Pa. St. 341; Pittsburgh, etc., B. Co. v. Jones, 86 Ind. 496; Palmer v. Missouri Pacific B. Co., 76 Mo. 217; Bichmond, etc., B. Co. v. Medley, 75 Va. 499; 40 Am. Bep. 734; Jones v, Michigan, etc., B. Co., 69 Mich. 437; citing Smith v. London & S. W. By. Co., L. B. 5 C. P. 98; L. E. 6 C. P. 14; Bass v. Chicago, B. & Q. B. Co., 28 111. 9; Illinois Cent. B. Co. V. Frazier, 64 Id. 28; Bockford, E. I. & St. L. E. Co. v. Bogers, 62 Id. 346; Salmon v. Delaware, L. & E. Co., 38 N. J. L. 6; Same-v. Same, 3^ Id. 299; Bichmond & D. B. Co. v. Medley, 40 Am. Bep. 734; Flynn V. San Francisco & S. J. B. Co., 6 Id. 895, and note ; Webb v. Borne, W. & O. B.^ Co., 49 N. T. 420; Kellogg v. Chicago & N. W. B. Co., 26 Wis. 223; Pittsburgh, C. & St. L. Ry. Co. v. Jones, 44 Am. Bep. 334, and note; Henry v. Southern Pac. B., 50 Cal. 176; Perry v. Southern Pac. E., Id. 678; 2 Borer E. E. 792; Cooley Torts (2d ed.), 704; 1 Add. Torts, p. 366, p. 368; Piggot v. Eastern Counties By. Co., 3 C. B. 229; Yaughan V. Taff Vale Ey. Co., 5 Hurl. & N. 679; Flynn v. Sat Francisco & S. J. E. Co., 40 Cal. 18; Cook v. Champlain Transp. Co., 1 Den. 91; Philadelphia & B. E. Co. V. Hendrickson, 80 Fa. St. 182; Hewey v. Nonrse, 54 Me. 266; Barnard v. Poor, 21 Pick. 378; Hart v. Western E. Co., 13 Mete. 99; Hooksett V. Concord B. Co., 38 N. H. 242 ; Cleveland v. Grand Trunk Ey. Co., 42 Vt. 449; Chicago & F. E. Co. v. Eern, 9 Ind. App. 606; 36 N. F. Rep. 381 ; Gulf, C. & S. F. Ey. Co. v. Johnson, 54 Fed. Bep. 474; Chicago & F. B. Co. V. Smith, 6 Ind. App. 262; 33 N. E. Bep. 241; Cincinnati, N. O. & T. P. Ey. Co. v. Barker, 94 Ky. 71; 21 S. W. Bep. 347; Louis- ville, N. A. & C. Ey. Co. e. Hart, 119 Ind. 273; 21 N. B. Bep. 763. The negligent failure to remove or destroy such dangerous combustible matter is always a question for the jury. When it Is made to appear by the plaintiff's testimony that the Are originated from either of the causes 90 NEGLECT OP. DUTIES EEQUIRING OKDINAET CAEE. engines and therefore to emit sparks, and were not liable except for negligence ( f) . The question of remoteness of damage is treated of ante, Ch. I. (() See the .judgment of Blac:kbarn, J., L. S. C. F., pp. 21, 22. mentioned in the statute, the burden is then cast upon the company, to show Itself free from negligence in the matter. Instances. — In the following cases the facts hare been held not sufficient to constitute contributory negligence: — Filing cord wood near the track of a, railroad under a contract express or implied with the company. — !]?. O. St. L. K. Co. v. Noel, 77 Ind. 110. Leaving a pane of glass out of a window in a house near the track. — Martin v. Western, etc., E. Co., 23 Wis. 433. Leaving a window open. — Louisville, etc., B. Co. v. Bichardson, 66 Ind- 43. Leaving the doors of an unfinished building open, though the floor is covered with shavings. — Fero V. Buffalo, etc., R. Co., 22 N. Y. 209. Sufierlng a roof of a build- ing near the track to get in such a condition that sparks could be blown through. — Phlla., etc., R. Co. v. Hendrickson, 80 Pa. St. 183. Omitting or refusing to plow a fire guard around hay stacks, when the distance is a reasonably safe one. — Union Pac. Ry. v. Arthur, 2 Colo. App. 1£9; 29 Pac. Rep. 1031; Hoffman v. Chicago, etc., Ry. Co., 40 Minn. 60; 41n! W. Eep. 301. Placing on defendant's premises posts which are burned by defendant' s negligent fire.— Gulf, C. & S. F. Ry. v. McGean, 74 Tex. 616; 12 S. W. Rep. 843.^ Where plaintiff's building, situated at a reasonable distance from a railroad track, was set on fire by a building subsequently erected in dan- gerous proximity to the track, he was held not guilty of contributory negligence. — Toledo, etc., R. Co. v. Maxfield, 72 111. 95. While one has a right to erect a building near a railroad track and in an exposed position, yet if he does so, he is bound to a higher degree of care in providing means to protect his property from fire than a person in a less exposed position. — Chicago & Alton R. Co. v. Pennell, 94 111. 448; 110 III. 436. But contributory negligence cannot be predicated of the erection in a customary and lawful manner of buildings con- s':! u'-.ted of the usual material upon the owner's premises, even though Vi^k-e are establishments In the neighborhood from which there is risk of Are or damage; and the owner of such buildings is not bound to incur trie expense of providing them with extra safeguards. — Aspern v, ' ^>!^^chill, 63 Mich. 607. See Jacksonville, T. & K. W. By. Co. o. Penn. . ^ M. Co., 27 Fla. 157; 9 So. Rep. 661. Under statutes giving railroad companies an insurable interest in the property along the line of its road, contributory negligence of plaintiff is not a defense. — Rowell w. Railroad Company, 57 N. H. 132. But it has been held one is guilty of contributory negligence in allow- RAILWAY FIRES. 91 Of a similar character are the cases where a man plants a poisonous tree, or uses a dangerous substance upon his ing shavings to accamulate about an unfinished building near a railroad track.— Coates v. Missouri, etc., R. Co., 61 Mo. 38. Permitting the windows of a warehouse, stored with combustible matter, to remain open andunglazed. — Great Western B. Co. v. Haworth, 39 111. 347. Permitting the use of a locomotive in the vicinity of a warehouse by its owners. — Spear v. Marquette, etc., K. Co., 49 Mich. 246. Allowing a steam engine, for threshing grain, to be placed near stacks of hay during a high wind. — Martin v. Bishop, 59 Wis. 417. Where one conld easily and without danger have saved his building from loss by fire, he cannot recover. — Chicago & Alton R. R. Co. v. Pen- nell, 94 111. 448. As where he noticed and failed to extinguish a Are likely to spread.— Illinois Cent. R. Co. ». McKay, 69 Miss. 139 ; 12 So. Rep. 447; Haverly o. State Line & S. E. Co., 135 Pa. St. 50; 19 Atl. Rep. 1013; 26 W. N. C. 321; not, however, where it is not shown that the Are could have been thus prevented. — Sugaiman ». Manhattan El. E. Co., 16 N. Y. S. Rep. 538. But damage caused by the negligence of one party and increased through the negligence of the plaintiff, may be recovered up to the time when the contributory negligence b egan to affect the result. — Stebbins V. Central Vt., etc., R. Co., 54 Vt. 464. It was left to the jury in one case to determine whether plalntifl was guilty of contributory negligence in stacking hay in a meadow one hundred and fifty or two hundred yards from the track of a railroad, where sparks from a passing engine ignited grass fifty feet from the track and the fire passed over to the hay. — Kansas City, etc., R. Co. v. Owen, 25 Kan. 419. As was the case where fire started from cinders dropped from an engine and ran through an orchard covered with old grass and corn stalksi destroying the trees mulched vrlth dry grass and straw stalks. — The Missouri, etc., R. Co. v. Cornell, 30 Kan. 35. So where plaintiff's barn stood near the right of way of a railroad, and Are was communicated from accumulations of straw and manure depos- ited outside and destroyed the barn. — Collins V. N. Y., etc., R. Co., 71 N. Y. 609. And to accumulations of hay and shavings between two buildings, and under one of them which was set upon blocks with its side next to the track and partially open. — Murphy o. Chicago, etc., R. Co., 45 Wis. 222. Defenses. — In an action to recover the value of an elevator alleged to have been burned by fire communicated to it from the building of another which was set on fire by sparks from a locomotive on defendants rail- road, the contributory negligence of the one first burning was held not to constitute a defense. — Small v. Railroad, 55 la. 582. 92 NEGLECT OP DUTIES KEQUIBING ORDINARY CARE. [75] land; he must, at his peril, see that he does not injure his neighbor (m). The same principle is applicable to the bringing of water npon a man's own land : he must keep it in at his peril (x), and it is no defense to say that there was no negligence, nor even that there was the greatest care. The only defense which can be raised is that the escape of the water was by the act of God, or vis major {y), or that he was compelled by Act of Parliament to keep the water there, and that' what happened was the inevitable result of the performance of his duty under the statute (2). With respect to water which is not brought by the owner upon the land but comes or exists naturally there, he is liable for negligence in the user of it (a). So, also, with respect (u) OiowlmiBt V. Ameisham Burial Losee v. Bn6hanan, 51 N. T. 176. [The Board, L. B. 4 Sx. D. 6 ; 18 L. J. Ex. 109 doctrine of Fletcher v. Bylands is dlsap- (horse poisoned by yew trees growing proved in Marshal v. Wellwood, 38 X. J. throngh railings) ; Firth v. Bowling Iron L, 339; Garland v. Towne, 65 IT. H. S5; Co., Ij. B, 3 0. P. Div. 261; 17 L. J. 0. F. Everett v. Hydraulic Flume Co., 23 Cal. 398; Wilson v. Newberry, L. B, 7 Q. B. 225 ; Lapeham v. Curtis, 6 Vt. 371. 31, dlstingnished (cow killed by eating It Is approved in Shipley v. Fifty portions of wire rope). As between Associates, 101 Mass. 251, Gorham v. landlord and tenant, see Grskine v. Gross, 125 Mass. 238, and followed In Adeane, L. B. 8 Ch. App. 756 ; 12 L. J. Oh. Oahll v. Eastman, 18 Minn. 321.] 835; (Brown v. Ilins, 27 Conn. 81; Car- (.y) Nichols v. Marsland, L. B. 2 Ex. hartt). AubumGas-llghtCo.,22Barb.297. D.l; 16 L. J. Ex. 171. See Hess v. Lnpton, 7 Ohio St. 1, 216; (s) Dixon v. Metropolitan Board of Woodward v. Aborn, 35 Me. 271.— [See Works, 7 Q. B. D. 118. poa. Chap. III., Sec. IV.] (a) Whitehonse v. Birmingham Oanal (a;) Fletcherv.Bylands, ncpra; Smith Co., 27 L. J. Ex. 26; Firmstone v. V. Fletcher, L. B.7 Ex. 306; L. B. 2 App, Wheeley, 13 L. J. Ex. 361 (removing a Oas. 781 ; 11 L. J. Ex. 193 ; 13 L. J. Ex. 70. natural barrier of a stream) . This is not the law in America; see Where defendant company sets ont a fire it cannot escape liability by showing that the fire originated on the right of way of another corpora- ' tion and that defendant had simply a right by contract to run its trains on the road. — Slossen v. Railroad Co., 60 la. 215. But where the injury occurred while the road was operated by trus- tees named in a mortgage to secure bondholders and before the mortgage, was foreclosed, the trustees were held not liable.^- Stratton v. Suropean, etc., R. Co., 74 Me. 422. (a) Surface Water. — The common law doctrine that the proprietor of an interior or lower tenement may lawfully obstruct or hinder the natural flow thereon without Incurring liability therefor prevails In some BRINGING WATER UPON LAND. 93 [76] to water which a man uses in common with his neighbors who equally derive benefits from it (6). If he (A) Anderson v. Oppenhetmer, post. States. — Little Bock, etc., Iky. Co. v. Chapman, 39 Aik. 463; Gibbs v. Williams, 25 Kan. 211; Bates vi Smitb, 100 Mass. 181; Cairo, etc., B. Co. V. Stevens, 73 Ind. 278; 38 Am. Bep. 139; Benthall v. Selfert, 77 Ind. 202; Abbott o, B. B. Co., 83 Mo. 271; 20 C. L. J. 38 (Abst.); Barkley v. Wilcox, 86 N. Y. UO; 40 Am. Bep. 519; BufEam v. Harris, 6 B. I, 243; Hoyt V. Haclson, 27 Wis. 656; Kansas City, etc., E. Co. v. Eiley, 33 Kan. 374; 20 C. L. J. 373; Beard v. Murphy, 37 Vt. 104; Hogenson ». St. Fanl,etc., By. Co., 31 Minn. 224; Edwards v. Charlotte, etc., B. Co., 39 S. C. 472; 18 S. E. Bep. 68; Jean v. Pennsylvania Co., 9 Ind. App. 56; 36 N. C. Bep. 159; Chicago, K. & N. By. Co. v. Steck, 61 Kan. 737; 33 Pac. Bep. 601; Schneider t). Missouri P. By. Co., 29 Mo. App. 68; Bowe V. St. Paul, M. & M. By. Co., 41 Minn. 384; 43 N. W. Bep. 76. The civil law doctrine that the lower of two adjacent estates must necessarily be subject to the natural flow of water from the upper one prevails in a number of the States. — Lndeling v. Stubbs, 34 La. An. 935; Bowman v. New Orleans, 27 La. An. 602;«Kauaman v. Griesemer, 26 Fa. St. 407; Porter v. Durham, 74 N. C. 769; Ogburn v. Connor, 46 Cal. 347; 13 Am. Bep. 213; Livingston v, McDonald, 21 la. 160; Drake v. Chicago, etc., B. Co., 63 la. 302; Louisville, etc., B. Co. v. Hays, 11 Lea, 382; Jacksonville, etc., B. Co. v. Cox, 91 lU. 600; Nininger v. Norwood, 72 Ala. 277. See also Butler v. Peck, 16 Ohio St. 334, and Tootle v. Clifton, 22 Ohio St. 247; 10 Am. Bep. 732; Bierer v. Hurst, 155 Fa. St. 523; 26 Atl. Bep. 742; Leldlelnc. Meyer, 95 Mich. 686; 55 N. W. Bep. 367; Brown v. Winona & S. W. By. Co., 53 Minn. 259; 65 N. W. Bep. 128; Gray v. Mc Williams, 98 Cal. 157; 32 Pac. Bep. 976; Senter v. Tees, 132 Pa. St. 216; 18 Atl. Bep. 1114; Sowers v. Lowe, 9 Atl. Bep. 44. In those States where the common law doctrine prevails a land-owner is not liable for disturbing the natural drainage of his neighbor's land in changing the grade of the surface. — Bangor v. Lansil, 51 Me. 521 ; Goodale v. Tnttle, 29 N. Y. 451; MorrUl v. Hurley, 120 Mass. 99; Or- chard Place Land Co. v. Brady, 53 Kan. 420; 36 Pac. Bep. 726. Or in erecting structures thereon. — Bates v. Smith, 100 Mass. 181; Bowlsby V. Speer, 2 Vroom, 351. These rules are subject to qualifications. In States where the rule of the civil law is adopted it seems that the owner of city property may be held to a stricter liability respecting surface water than the owner of an estate in the country. — Gould on Waters, § 268, And In those which have adopted the common -law rule, in hilly regions barriers may not be erected to prevent the influx or outflow of surface water.— Palmer v. Waddell, 22 Kan. 353; Hoyt ». Hudson, 27 Wis. 666. In New Hampshire it is held that the land-owner's right to obstructor 94 NEGLECT OF DUTIES BBQCIRING ORDINARY CARE. diverts the [77] whole of any part of the water of a stream from its natural course, he is responsible abso- divert surface water or water percolating through the soil is limited to what is necessary in the reasonable use of his own land. — Swett v, Cutts, 50 N. H. 439; Bassett v. Salisbury Mfg. Co., 43 N.*H. 569. A land-owner has no right under either rule to increase the flow of surface water or to gather it in a body and discharge it on his neighbor's land.— Ogbum v. Connor, 46 Cal. 346; 13 Am. Bep. 213; Kelly v. Dun- ning, 39 N. J. Kq. 482; Tootle v. Clifton, 22 Ohio St. 247; 10 Am. Bep. 732; Weis v. Madison, 76 Ind. 241; Boyd v. Conklin, 54 Mich. 683; 24 Am. Law Beg. 306; Horton v. Sullivan, 97 Mich. 282; 66 N. W. 552; Williamson o. Oleson, 89 la. — ; 59 N. W. Bep. 267; Osten «. Jerome, 93 Mich. 196; 53 N. W. Bep. 7; Boyton v. Longley, 19 Nev. 69; 6 Pac. Bep. 437; Chicago & A. B. Co. v. Glenney, 28 111. App. 364; Davidheiser V. Ehodes (Pa.), 19 Atl. Bep. 400; 26 W. N. C. 513; Meyers v. Fritz (Pa.), 10 Atl. Bep. 30. Miinlcipal Corporation. — A municipal corporation in constructing or changing the grade of streets is not liable for injuries resulting from the flow of waters naturally collecting thereon, over the lands of adjacent proprietors. — Hubbard v. Webster, 118 Mass. 599; Wakefield v. Newell, 12 E. I. 76; Lynch v. New York, 76 N. Y. 60; Alden v. Minneapolis, 24 Minn. 254 ; Champion v. Town of Crandon, 84 Wis. 405 ; 54 N. W. Bep. 775; Bush «. City of Portland, 19 Ore. 45; 23 Pac. Bep. 667. Nor is it bound to provide ditches or other conduits for surface water flowing along the street so as to prevent it from running over the lands of adjacent owners. — Stewart v. City of Clinton, 79 Mo. 603; Hoyt«. Hudson, 27 Wis. 656; Borough of West Bellevuec. Huddleson (Pa.), 16 Atl. Bep. 764; 23 W. N. O, 240; Bntherford ». Village of Holly, 105 N. Y. 632; U N. K Bep. 818. The adjacent owner may however prevent the flow of water on his land from the street.— Bangor w. Lansil, 61 Me. 521; Limerick Co.'s Appeal, 80 Pa. St. 425. In Pennsylvania it was held that a city constructing a sewer along the bed of a creek of insufficient capacity to carry off the water Is not liable for damages caused by its overflow during a rain storm, on the principle that a municipality can not be made liable for the mistakes which may be committed by its officers in the honest exercise of their duties. — Col- lins V. City of Philadelphia, 93 Pa. St. 272. It was left to the jury in another case to determine whether due care was exercised in the construction of a sewer which would not properly carry ofl surface water during a storm. — McCIure o. City of Bed Wing, 28 Minn. 186. A city as an individual (Kelly v. Dunning, 39 N. J. Eq. 482; Hogenson V. St, Paul, etc., B. Co., 31 Minn. 224) Is liable for collecting water in a channel and throwing it upon another's land.- City of Bvansville o. NEGLIGENCE IN RESPECT OF SUBFACE WATERS. 95 lately without any allegation [78] of negligence to any one entitled to have the water flow in in its natural state Decker, 84 Ind. 325; Mairs v. Manhattan Beal Estate Association, 89 N. Y. 498; Good v. City of Altoona, 162 Pa. St. 493; 29 Atl. Eep. 741; Slack V. Lawrence Tp. (N. J.), 19 Atl. Eep. 663; Torrey v. City of Scranton, 133 Fa. St. 173; 19 Atl. Rep. 351; Bates «7. Inhab. of Westborougli, 161 Mass. 174; 23 N. E. Eep. 1070. And if it collects surface water in one place in a large body, it must provide for its escape without injury to private property owners.— City of Crawfordsville v. Bond, 96 Ind. 236. See City of Terre Haute v. Hadnet, 112 Ind. 542; 13 N. E. Eep. 686; Town of Sullivan v. Phillips, 110 Ind. 320; 11 N.E. Eep. 300; Pye v. City of Mankato, 36 Minn. 373; 31 N. W. Eep. 863 ; Eice v. City of Flint, 67 Mich. 401 ; 34 N. W. Eep. 719. A city has been held liable for failure to keep its sewers in repairs whereby surface water was diverted into a neighboring cellar. — Taylor V. City of Austin, 32 Minn. 247. See City of Denver v. Bhodes, 9 Colo. 554; 13Pac. Eep. 729. While a city is bound to keep its canals in repair and protect adjacent proprietors against damage by overflow it is not bound to provide against extraordinary rainfalls. — Cil7 of EvansvUle v. Decker, 84 Ind. 325. Where the proximate cause of the overflow of a canal was the failure of the city to keep it clear of obstructions, the existence of an extraor- dinary rainfall was held not to relieve it from liability for resulting in- juries. — The Mayor, etc., of Savannah v. Cleary, 67 Ga. 153. Railroad Companies. — Under the common-law rule, railroad corpo- rations are not liable for the obstruction or diversion of the natural flow of surface waters by their road-beds. — Walker v. Old Colony E. Co., 103 Mass. 10; O'Connor v. Fond duLac E. Co., 52 Wis. 626; Morrison v. Bucksport E. Co., 67 Me. 353; Raleigh E. Co. v. Wicker, 74 N. C. 220; Mayer v. New York Cent., etc., E. Co., 88 N. Y. 351; Cairo, etc., E. Co. V. Stevens, 73 Ind. 278; 38 Am. Eep. 139; Ataton v. Norfolk & C. E. Co., 109 N. C. 337; 13 S. E. Eep. 933; Morissey v. Chicago, etc., R. Co., 38 Neb. 406; 56 N. W^Eep. 949; 57 N. W. Eep. 652; Missouri Pac. Ey. Co. V. Eenfro, 52 Kan. 237; 34 Pac. Eep. 802; Jordan v. St. Paul, M. & M. Ey. Co., 42 Minn. 172; 43 N. W. Eep. 849. Under the civil law rule a liability arises. — Carriger v. East Tennes- see, etc., E. Co., 7 Lea, 388 ; Little Eock, etc., R. Co. v. Chapman, 39 Ark. 463; Drake ». Chicago, etc., B. Co., 63 la. 302; Louisville, etc., Co. v. Hays, 11 Lea, 382; Fick o. Pennsylvani E. Co., 157 Pa. St. 622; 27 Atl. Eep. 783; Knight v. Albemarle & E. Co., Ill N. C. 80; 15 S. E. Rep. 929; Noe v. Chicago, B. & Q. Ey. Co.. 76 la. 360; 41 N. W. Eep. 42; Fre- mont, E. & M. V. E. Co. ». Marley, 25 Neb. 138; 40 N. W. Eep. 948. But a railroad company has no right by the erection of embankments, bridges, etc., to discharge unusual quantities of surface water upon adjoining lands. — Jacksonville, etc., R. Co. v. Cox, 91 111. 500; Curtis 96 NEGLECT OF DUTIES REQUIRING OEDINAHT CASE. (c), unless he is entitled by some grant or prescription to interfere with the natural flow of the streaih (d). In no part of this treatise is it more necessary to observe the rule already laid down (e) that negligence only arises where the rights are equal, than in the subject we are now (c) Wood V. Wand,3 Exch. 748; Dick- Tonngc. Bankler D. Co. (1893), App. Cas. Inson V. Grand Junction Canal Co., 7 691; Dean t>. Benn, 69Han, 519; 23N. Y. Exch. 299, and many other cases. S.Bep. 708; Alcorn D.Sadler, 66 Miss. 221; Shearman, p. 659. Terry v. Smith, 17 Hnn, 333; Keyar v. i (d) Bealey v. Shaw, 6 East, 2U; Ac- Covell, 62 N. H. 283; Hartln v. Gleason, ton V. Blandell, 12 M. & W. 3B3. — [In 139 Mass. 183 ;29N.E. Bep. 661 ; Chaovet America the common lav rnle prevails r. mil, 93 Cal. 407; 28 Fac Bep. 1066; where the' time has not been shortened Masonic Temple Assoc v. Hauls (Me.), by statute. — Gallagher v. Montecito 19 At. Bep. 937.] Tal. Water Co. (Cal.), 35 Fac. Bep. 770; (e) Ante, p. 6. V. Bastern B. Co., 98 Mass. 428; McCormick v. Kansas City, etc., B. Co., 70 Mo. 359; Drake o. New York, etc. By., 75 Hun, 422; 27 N. Y. S. Bep. 739; St. Louis, A. & T. H. B. Co. v. Winkelmann, 47 HI. 276; Ohio & M. By. Co. v. TMUman, 143 El. 127; 32 N. E. 529; O'Connell V. East Tenn., V. & G. By. Co., 87 6a. 246; 13 S. E. Bep. 489; Kan- sas City, Ft. S. & M. E. Co. o. Cook, 67 Ark. 387; 21 S. W. Bep. 1066. If a railroad company exercises due care and skill in making neces- sary embankments, culverts and ditclies, such obstruction and discliarge is damnum absque injwna. — Benson v. Cliicago & Alton B. Co., 78 Mo. 504. Tlie latest authority in this State follows the common-law snile. — Abbott ®.E. Co., 83 Mo. 271. See Gulf, C. & S. P. By. Co. v. Steele, (Tex. Civ. App.) ; 26 S. W. Bep. 926 ; Collier o. Chicago & A. B. Co., 48 Mo. App. 398. But it is liable for injuries to lands from the defective or improper construction of its road causing their overflow. — Bourdier c. Morgan's etc., B. Co., 35 La. An. 947; Gulf, Colorado, etc., B. Co., 59 Tex. 128; Adams v. Durham & N. B. Co., 110 N. C. 325 ; 14 S. E. Bep. 857 ; George o. Wabash W.Ey. Co., 40 Mo. App. 433; Sinai v. Louisville, etc.. By. Co., 71 Miss. 547; 14 So. Bep. 87; Kankakee & S. E. Co. v. Horan, 131 m. 288; 23 N. E. Bep. 621. Under no rule of law is a railroad company liable for damages caused by unusual overflows which could not have been anticipated and guarded against by the exercise of reasonable foresight and skill. — Gulf, C. & S. P. Ey. V. Dunlap (Tex. Civ. App.), 26 S. W. Bep. 655; Central Trust Co. o. Wabash, etc., By. Co., 67 Fed. Bep. 44; Peoria & P. n. Ey. Co. ». Barton, 88 111. App. 469. This is a proper question for the jury. — Van Duzer v. Elmira, etc., E. Co., 75 Hun, 487; 27 N. Y. S. Bep. 474; Sentmanw. Baltimore & O. B. Co., 78 Md. 222; 27 AH. Bep. 1074. WATEE — DIVERSION — POLLUTION. 97 about to consider, viz., the duties of the owners of real property with respect to water and water-courses. Thus, Diversion. — One riparian or adjoining proprietor has no right to divert the water o£ a stream to the injury of another — Gilman v. Tilton, 5 N. H. 232; Smith ». Agawan Canal Co., 2 Allen, 355; Strout v. MUlbridge, 42 Me. 76; Garwood v. New York Central, etc., E. Co., 83 N. T. 400; 38 Am. Rep. 452; Shotwell v. Dodge, 8 Wash. 337; 36 Pac. R-p. 254; Covert o. Cranford, 141 N. Y. 621; 36 N. B. Rep. 597; Covert V. Valentine, 66 Hnn, 632; 21 N. Y. S. Rep. 219; Kay v. Kirk, 76 Md. 41; 24 Atl. Rep. 326; Kimberly & Clark Co. v. Hewitt, 79 Wis. 334; 48 N. W. Rep. 373; Stanton ». Norfolk & C.R. Co., Ill N. C. 278; 16 S. E. Rep. 181; Weis v. Oregon I. & S. Co., 13 Ore. 496; 11 Pac. Rep. 265; Wrightc. Syracuse, etc., E. Co. ,49 Hnn, 445; 3N. Y. S. Rep. 480; Cheeves V. Danielly, 80 Ga. 114; 4 S. E. Rep. 902; Stevens v. Kelley, 78 Me. 445; 13 Atl. Rep. 45; 6 Atl. Eep. 868. ^ To entitle one to redress for the diversion of water there must be actual damage. — McElroy o. Goble, 6 Ohio St. 187; Norway Plains Co. ». Bradley, 52 N. H. 108; Elliott v. Flnchburg R. Co., 10 Cush. 191; Chalk V. McNally, 11 Rich. 153; Williams v. Camden & R. W. Co., 79 Me. 543; 11 Atl. Rep. 600. A riparian proprietor may divert water as it passes through his land if he restores it to its natural channel before it enters the lands of other pro- prietors and does not diminish its flow. — Canfleld v. Andrews, 54 Vt. 1; 41 Am. Rep. 828; Garwood v. New York Cent., etc., R. Co., 83 N. Y. 400; Pettibone ». Smith, 87 Mich. 579. No action lies for diverting underground water percolating through the soil and not flowing in any stream. — Chase v. Silverstone, 62 Me. 175; Wilson o. New Bedford, 108 Mass. 265; Frazier v. Brown, 12 Ohio St. 294; Chatfield v. Wilson, 28 Vt. 49; Roath v. DriecoU, 20 Conn. 533; Greenleaf w. Francis, 18 Pick. 117; Elster «. City of Springfield, 49 Ohio St. 82; 30 N. E. Bep. 274; Alexander v. United SUtes, 25 Ct. CI. 87; Southern Pacific B. Co. v. Dnfonr, 95 Cal. 615; 30 Pac. Bep. 783. But the rule is different where the underground water is a stream which can be traced and identified. — Castalia Trout Club Co. v. Castalia Sporting Club, 8 Ohio Cir. Ct. Bep. 194; McCIellan v. Hurdle, 3 Col. App. 430; 33 Pac. 280; Colrick v. Swinburne, 105 N. Y. 503; 12 N. E. Bep. 427; Bur- roughs V. Saterlee, 67 la. 896; 66 Am. Bep. 360. It was held in Chatfield o. Wilson, supra, immaterial with what motive the act was done. — See Frazier v. Brown, 12 Ohio St. 294; Paine o. Chandler, 134 N. Y. 385; 32 N. E. Bep. 18. Pollution. — An action lies against one for placing noxious sub- stances on his land, thereby fouling the surface water flowing over the land of his neighbor. — Gawlrig v. Leiand, 31 N. J. Eq. 385; Indianapolis Water Co. v. American Strawboard Co., 57 Fed. Eep. 100. 7 98 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. as we have just said, if a man brings water in a dangerous state upon his land, his right to do so is subordinate to his neighbor's right to have his land free from such danger. So, also, the right of a man to take water* from his own . water-course, or to add to it in quantity or to injure its quality, is subordinate to his neighbor's right to have the accustomed stream flow down to him. All such matters, therefore, are beyond the scope of the present work. It is only where the rights of the parties are equal, and where if injury arose there would be no remedy in the absence Or fouling water percolating beneath the surface. — Brown v. Uius, 27 Conn. 84. For suffering filthy water to filter through the soil into the land of an adjoining proprietor. — Ball v. Nye, 99 Mass. 682. Discharging sink water into a brook. — Jackson v. Arlington Mills, 137 Mass. 277. Polluting a well. — Collins v. Chartiers Val. Gas Co., 131 Pa. St. 143; 18 Atl. Eep. 1012; 26 W. & 0. 139. Or a stream, as by washing ore in water returned to it. — Drake v. Lady Bnsley C. I. & E. Co., 102 Ala. 601 ; 14 So. Eep. 749; Tenn. C, I. & E. Co. V. Hamilton (Ala.), 14 So. Eep. 167; Satterfield v. Eowan, 83 Ga. 187; 9 S. E. Eep. 677. See Gould on Waters, J§ 219, 288. In a recent English case plaintiff and defendant were adjoining land- owners and each had a well on his own land, that of plaintiff being the deeper of the two. The water in the plaintiff's well rose naturally to within twenty-seven feet of the surface land and he used a pump to raise it that distance. The defendant began to discharge sewage from his house into bis well which percolated through the soil and polluted the water which the plaintiS pumped up from his well. It was held by the Court of Appeal (reversing Pearson J., 50 L. T. Eep. N. S. 230; 26 Ch. Div. 194;, that the plaintiff was entitled to an injunction restraining the defendant from using the well so as to pollute the water in the plaintiff's well and also to damages for any injury he had sustained in consequence of the pollution. — Ballard v. Tomlinson, 29 Ch. Div. 115; 18 Chicago Legal I^ews, 3. See Maguire v. City of Cartesville, 76 Ga. 84. In Upjohn v. Eichland Township (46 Mich. 642), it was said by Cooley, J. ; " If withdrawing the water from any well by an excavation on adjoining lands will give no right of action, it is difficult to understand how corrupting its waters by a proper use of the adjoining premises can be actionable, when there is no actual intent to injure and no n^ligence. The one act destroys the well, and the other does no more ; the injury is the same in kind and degree in the two cases." BKINGING WATER UPON LAND. 99 of negligence, that the question of negligence arises. This may be well illustrated by the case of erecting a dam in a river. If the circumstances connected with the river, the adjoining property, and the dam are of such a nature that [79'] injury to his neighbor's paramount right is the result of what the owner of the property does, and no care in [80] the doing of it would make any difference, then the owner is doing a wrong or trespass for which an action would lie irrespective of any allegation of negligence ; but if the circumstances connected with the river, the adjoin- ing property and the dam were such that if care were taken no injury to any paramount right would arise, then no action would lie for injury done unless negligence were proved. The dam in the former case is a dangerous thing which a man erects at his peril, and the right to do so is subordinate to his neighbor's right to hold his lands free from danger; while in the latter case, it is only the exer- cise of a right to use his property so as not to injure his neighbor, which is equal to his neighbor's right to enjoy his own property. If, therefore, by some unusual and sudden accident the dam in the latter case causes injury, the owner is not liable for the injury; but if he has been negligent in respect of the dam he is liable for such negli- gence (/). The case of Harrison v. Great Northern Railway (g) was a somewhat singular one, and is very instructive. The defendants had undertaken to maintain a cut. The banks were not sufficient to resist the pressure of the water which they could contain. The cut ran into the river Witham, and the Witham Commissioners neglected to cleanse the (/) The law Is well lUnstrated by the works Co., 11 Ezch. 781 (company not following cases: Bagnall v. !>. & N. W. liable for borstlng of pipes In extremely Ey. Co., 7 H. & N. 423, aff. 1 H. & 0. 611 cold winter) ; Harrison v. Great North- (company cut Into soil over mine, and em Ky., 3 H. & 0. 231 (bursting of bank built bridge over stream, and neglected of drain), to repair drains— held liable for negli- (ff) supra. gence): Blyth v. Birmingham Water- 100 NEGLECT OF DUTIES KEQOIKING OKDINARY CAKE. [81] river, by reason of which neglect the cut became full of water and burst its banks. The cut would not have burst except for the wrongful conduct of the commissioners. There was no sudden storm or sudden wrongful act done by the commissioners, but the stoppinig up had been of frequent occurrence. It was held, not that having brought the water there the defendants were bound to restrain it, which it was said was unnecessary to be decided in that case, but that the bank was defective by reason of the negligence of the defendants, and that the defective bank was the proximate cause of the injury, notwithstanding the obligation upon the commissioners to cleanse the outlet. Another interesting case is that of Fletcher v. Smith (A), There the owner of property had for his own convenience diverted a stream, making a new channel, but negligently making such channel insufficient. The water had flowed down from the defendant's to the plaintiflF's mine through cracks, caused by the ordinary working of the defendant's mine, and if the ordinary watercourse had, in consequence of such ordinary working, run through the cracks, it appears from the judgment (citing Wilson v. Waddell, 2 App. Cas. 95) that the defendant would not have been liable, that is to say, he would have been exercising a paramount right of property ; but when he chose to alter the watercourse he was exercising no such paramount right, but a right which was no greater than the plaintiff's right to have his own land free from any unusual flow of water caused by the defendant's acts. The owner or landlord of a house is generally responsible for the original construction, etc. , of the pipes, cisterns, etc. , unless some agreement has been made to the contrary, and the tenant is only responsible for the way in which he uses them (i). Where the tenant of an upper floor does not (ft) Fletcher v. Smith, L. E. 2 App. (i) See Sbeaiman, ss. 512-Sll. [Fash Cas. 781 ; 43 L. J. Ex. 70. „. Kavanaugh, 24 How. Pr. 3471. LANDLOED AND TENANT. 101 [82] know of the defective state of his receptacle for water, and there is no negligence in his mode of dealing with it, and it overflows and injures the room of the tenant below, the doctrine of Fletcher v. Eylands, ante, does not apply (Jc), and he is not obliged to keep his pipes from overflowing in any event, but is only liable for negligence. Probably the tenant of the upper floor would be liable in an action for negligence if he had notice of the dangerous state of the pipes and did not remedy the defect, although he did no other act of negligence. Where a landlord demised a house in flats with a com- mon water supply by branch pipes he was held by Field, J., not liable for damages caused by the bursting of the pipes in the absence of negligence in fixing the pipes and maintaining them. If there had been such negligence it seems it might have been a breach of the covenant for quiet enjoyment (?). This was affirmed in the Court of Appeal because the covenant was prospective, and during the demise nothing had been done to interrupt the quiet enjoy- ment. It was also held that the water supply being for the common benefit the plaintiff had no cause of action founded upon Fletcher v. Eylands (wi). A landlord is liable for his own negligent misfeasance in the construction or upholding of his property (n), but not for the negligence of his tenant. Thus, the landlord is liable for the consequences of a nuisance ( as an obstruction of ancient lights), even after he has leased the premises (o), and he is liable for defects which existed before he parted with the property (p). It seems, however, that if the (Jc) Boss V. Feddon, 41 L. J. Q. B. 270; (o) Boswell v. Prior, 2 Salk. 460; Bex L. E. 7 Q. B. 661 ; [Eakln v. Brown, 1 E. D. v. Fadley, 1 A. & E. 827 ; Gaudy v. Jabber, Smith, 36.] 6 B. & S. 78, 485 ; Leslie v. roands, 4 (2) Anderson v. Oppenheimer, 49 L. J. Tannt. 649. See Bartlett v. Baker, 3 H. & Q. B. 4S6. G. 153 (piles put In river by defendant, (jn) 49 L. J. 0. A. 708; 6 Q. B. D. 602. sold to another, who cat them ofi and (n) Nelsons. Liverpool Brewery Co., did not remove them. Defendant not L. E. 2 O. P. r». 311 ; 46 L. J. 0. P. 675.— liable). [O'Connor v. CnrtU (Texas), 18 S. W. (p) Alston v. Grant, 3 El. & B. 128; Bep. 953.] Cheetham v. Hampson, 4 T. B. 318. 102 NEGLECT OF DUTIES KEQUIKING OKDINARY CARE. [83] owner had no means of knowing, and in fact did not know of the defect, and the tenant has covenanted to repair, the owner is no longer liable (g). If the owner has covenanted to do the repairs, then he is, of course, responsible for them as far as the tenant is concerned, and is also liable to third parties {r) ; but if the tenant by his own negligent conduct makes the property injurious to others he cannot shelter himself under a cove- nant by the landlord to repair the mischief (s). A landlord, however, is not liable to the guests of his tenant, even for injuries caused by defects existing before the creation of the lease (<) ; unless, indeed, he knows that (g) Gwmnell v. Earner, L. R. IOC. P. no defense that it had always been so, 658,lollowingPretty!). Blokmore, L. B. 8 time out of mind: Conplsnd«. Harding - 0. P. 401. The contrary seems to hare ham, 3 Camp. 398. See Proctor v. Har- been held in America, Taylor v. New ris, 4 0. & P. 337; Daniels v. Potter, i6. Tort, 4 E. D. Smith, 559. [In Swords o. 26 (cellar flaps); Hadley v. Taylor, 14 Edgar, 59 N. T. 28, the court say : " The W. E. 59 ; 13 L. T. N. S. 368. remarks of Woodruff. J., In Taylor v. (s) Pickards. Smith.lOC. B.N. S.470. Mayor, E. D. Smith, 559, apply to a case — [Byer v. Jordan, 111 Mo. 424 ; 19 S. W. where the want of repair has arisen ilcp. 1095; Stergcr». Van Slolen, 7N. T. after the leasing. See im/ro.] S.Eep. 805.] (rl Paynfi«. Kogers,2H.Bl. 350; Todd (<) Eoblns o. Jones, 15 C. B. N. S. 221 ; B.Fllght,9C.B.N.S.377;Nelson».LlTer- Eyan». Wilson [87 N. T. 471], 41 Amer. pool Brewery Co., L. E. 2 C. P. D. 3H; Eep. 384— [Hllsenbeck v. Guhrlng, 131 46 L. J. C. P. 675. Where a tenant left N. T. 674; 30 N. E. Eep. 580.] his area open to the street it was held Liability of Landlord and Tenant tor Injuries to Third Persons. — The landlord, as well as the tenant, is liable for injuries to third persons caused by the defective condition of demised premises amounting to a nuisance at the time of and contiauing after the letting (Durant v. Palmer, 29 N. J. L. 644; Stephani v. Browne, 40 111. 428; Moody v. New Xork, 43 Barb. 282; Swords v. Edgar, 59 N. Y. 28; X7 Am, Eep. 295; Owings V. Jones, 9 Md. 108; Joyce v. Martin, 15 E. I. 558; 10 Atl. Eep. 620; Biley v. Simpson, 83 Cal. 217; 23 Pac. Bep. 293; Timlin v. Standard Oil Co., 7 N. Y. S. Eep. 158), as for coal holes in the sidewalk. — Con- greve v. Smith, 8 N. Y. 79; Irvine v. Wood, 51 N. Y. 224. See Adams V. Fletcher, 17 E. I. 187; 20 Atl. Eep. 263. (But where there was a permit from the city to construct a coal hole in a sidewalk, with an opening leading to it, and while it was under the entire control of the tenant, through a defect in the stone caused by strangers, plaintitt was injured, it was held he could -not recover against the owner of the premises merely because he was the landlord ; he was LANDLOKD AND TENANT. 103 [84] strangers will be invited, and that the premises are unsuitable for such invitation of strangers (m). I.M) Godley v. Hagerty, 20 Pa. St. 387; Valentine, 21 N. Y. S. Kep. 776; 3 Misc. Stratton ti. Staple,59 Maine, 9i; Edwards Rep. 20; Montleth r. Finkbcinor,66 Hnn, V. New Tori Ry. Co., 20 Hxm, N. Y. 634; 633; 21 N. T. S. Eep. 288, following Hen- affirmed on appeal, 98 N. Y. 245.— [This kel v. Mnrr, 31 Hun, 28. But the rale knowledge may be Implied. — Onrtis v. does not protect one attending on a Kiley, l.'>3 Maes. 123; 26 N. E. Bep. 421; " wake " without an invitation, express O'SuUivan v. Norwood, 14 Daly, 286; or implied. — Hart ». Cole, 156 Mass. 475; Fishers;. Jansen.SOIU. App.91; affirmed. 31 N. E. Eep. 644.] 128 m. 549; 21 N. E. Bep. 598; Brady ». not liable unless the Injury was caused by some fault on Ms part. — Wolf V. Kilkpatrick, N. T. Ct. App., i N. B. Rep. 188; 22 C. L. J. 516, and note. The court said the case was not within the principle of Clifford V. Dam (81 N. Y. 12), where no permission or license from the munici- pality to make the excavation was pleaded or proved, and the construc- tion of the vaults was an unauthorized wrong and a nulsauce, for the con- sequences of which the owner was responsible, irrespective of the question of negligence; that there was the same lack of special author- ity in Dygert v. Schenck (23 Wend. 4), and Congreve v. Morgan (18 N. Y. 79). When the premises can not be used for the purpose designed without creating a nuisance (House v. Metcalf, 27 Conn. 632), the owner is liable. So also when the owner knows of the defective condition of the premises at the time of the letting, or is properly chargeable with knowl- edge thereof. — Godley v. Hagerty, 20 Pa. St. 387 ; Carson v. Godley, 26 Pa. St. Ill; Dalay v. Savage, 145 Mass. 38; 12 N. E. -Bep. 841; Albert V. State, 66 Md. 325; 7 Atl. Rep. 697; Fellows v. Gilhuber, 82 Wis. 639; 62 N. W. Rep. 307. But see Burdick v. Cheadle, 26 Ohio St. 397. In- sufficient notice, see Hutchison v. Cummings, 156 Mass. 329; BIN. E. Rep. 127, following Tuttle v. Manufacturing Co., 145 Mass. 169; 13 N. B, Rep. 465. And it has been held that " one who so constructs' a privy well that if filled above a certain height it becomes a nuisance to the adjoining prop- erty he is liable therefor although the premises are at the time the nui- sance occurs in the possession of a tenant." — Elow v. Roberts, 108 Pa. St. 489; 19 Bep. 793. The owner of a lot of land abutting on a highway, on which was a building consisting of several shops, having a wooden platform e:xtend- ing from it to the sidewalk, constructed for their common use, and used by the public as a passage way, was held liable to a person who, in the exercise of due care, was injured by a defect in the platform, in the absence of an agreement by the tenants to keep it in repair. — Read- man V. Conway, 126 Mass. 374. So where there is an opening five feet long and ten inches wide in the 104 NEGLECT OF DUTIES EEQUIEING OEDINAEY CAEE. [85] In the absence of a covenant in the lease a land- lord is not answerable for injuries to the cattle of third pavement just below a show window in, the front of a store building standing back six feet from the sidewalk, it was held that the owner was liable to one injured thereby, although possession tad been yielded to a tenant.— Tomle v. Hampton, 28 HI. App. 142; 21 N.E. Eep. 800; 129 111. 379. But the Supreme Court of Texas seem to view the rule of law differ- ently in the case of Texas & P. By. Co. o. Mangum (Tex., 4 S. W. Rep. 617), where the company was held not bound no keep in repair or well lighted a platform leading to an eating house, both erected and main- tained by a lessee. In Camp o. Wood (76 N. Y. 92) it was held that a person in letting a ball for public purposes holds out to the public that it is safe, and be is bound to exercise proper care in providing safe arrangements for en- trances. This was an action to recover damages for injuries resulting from the plaiutifE's stepping off an unguarded piazza, the door upon which occupied the same relative position to the upper flight of stairs as the stair doorway to the lower flight. But in another case it was held that the owner of a building leased to a tenant who occupied it was not liable to a third person who, in passing along the walk leading irom the street to a building for the purpose of transacting business with the tenant, was injured by falling down an embankment adjoining the walk, although the estate was in that condi- tion prior to the letting. — Wellen v. Morrill, 126 Mass. 645. And where a building was let to be used for a public entertainment, and one of the galleries fell by the stamping of a crowd keeping time with the music, and inj ured the plaintiff, it was held that the landlord was not liable; that in the absence of evidence tending to show that defend- ant knew, or had reason to believe that there was some defect in the gallery, or that it was of insufficient strength to hold the number of peo- ple it contained, or that it was used in such a way to injure its security, plaintifE was properly nonsuited. — Edwards v. New York, etc., R. Co., 98 N. Y. 245. It has been held In Massachusetts that when the lessee has covenanted to make repairs the lessor is not liable for damages to third persons from the original defective condition of the premises. — Leonard v. Storer, 115 Mass. 86; 15 Am. Rep. 76. On the other hand it was held in New York that the lessors of an un- safe pier were liable tor injuries to a third person, though at the time It was leased to one who covenanted to repair. — Swords v. Edgar, 59 N. Y. 28; 17 Am. Eep. 295. In both cases the lessors were properly chargeable with knowledge of the defective condition of the thing demised. The latter authority seems to be the better law.— 1 T.homp. Neg. 323. ' FEKCES. 105 parties [86] arising from his tenant's neglect to repair fences (a;). Nor is he, at common law, under any obliga- tion to fence as between himself and his tenants (y). (a) Caieetham v. Hampaon, 4 T. B. 766; 42 I.. J. Ch. 835.— [Potter v. New 318; Payne v. Sogers, a H. Bl. 350; Tork.O. &H. E. E. Co.,15N. T. S. Eep. CTewksbnry v. Bncklln, 7 N. H. 618.) 12.] (y) Grskine v. Adeane, L. B. 8 Cb. Where the landlord has covenanted to repair and by reason of his failure to do so, a third person Is injared, the landlord will be liable. — Benson v. Saarez, 43 Barb. 408 ; Chicago v. O'Brennan, 65 lU. 160. Bat where a statute provided that the landlord should furnish and keep in repair Are escapes on the premises, and a child of a tenant got out on the platform of the fire escape attached to the buUdlng, and fell through the trap door in consequence of its being out of repair and was injared, the landlord was held not liable. — McAlpinv. Powell, 70 N. Y.126. When a landlord renews a lease with a naisance thereon, he is liable for its existence. — State v. Williams, 30 N. J. L. 112; Fleischner v. Citi- zens' B. E. & I. Co., 25 Ore. 119 ; 35 Fac. Bep. 174 ; Eankin v. Ingwersen, 49 N. J. Ii. 481 ; 10 Atl. Bep, 545, affirming Ingewersen v. Bankin, 47 N. J. L. 18. The rale as to the liability of the tenant for a nuisance created on the premises before the letting and continued afterwards applies as between vendor and purchaser. — Prentiss v. Wood, 132 Mass. 486 ; Eastman v. Am'oskeag Mannf. Co., 44 N. H. 143; Dorman v. Ames, 12 Minn. 451; McGrath v. Walker, 18 N. Y. S. Bep. 915. But the purchaser must be notified of the existence of the nuisance and requested to abate it before he can be held liable for its continu- ance. — Woodman v. Tufts, 9 N. H. 88; Johnson v. Lewis, 13 Conn. 402; PlUsbury o. Moore, 44 Me. 154; Ahem v. Steel, 115 N. Y. 203; 22 N. E. Eep. 193; Woram v. Hoble, 41 Hun, 398. And if the grantee have not power to abate the naisance he is not liable for it.— Lafkia v. Zane, 157 Mass. 117; 31 N. E. Eep. 757. Where a lessee continued a nuisance — a lime kiln — of a nature not essentially unlawful, he was held liable to an action only after notice to abate it.— Slight v. Gutzlaff, 35 Wis. 675. From this review of the cases it seems that the proper rule is that the party controlling the property at the time of the injury is liable for it ; except those cases where the wrong amounts to a nuisance, in which both landlord and tenant are generally liable. — City of Boston v. Gray, 144 Mass. 53; 10 N. C. Eep. 609; City of Denver v. Soloman, 2 Col. App. 534; SlPao. Bep. 507. Thus, where the landlord retains control of the property he will be liable for a nuisance created thereon. — Shipley v. Fifty Associates, 101 Mass. 251; Marshall v. Cohen, 44 Ga. 489; Health v. Valentine, 67 Hun, 106 NEGLECT OP DUTIES KEQUIKING ORDINARY CARE, [87] We naturally come at this place to consider what is the obligation upon owners of real property with respect 691; 11 N. Y. S. Rep. 112; 14 N. T. S. Eep. 941. Or other negligent management, as the failure to light stairways. — Mp,rwedel v. Cook, 151 Mass. 236 ; 28 N. E. Eep. 140. Or to close a coal-hole. — Stevenson v. Joy, 152 Mass. 45; 25 N. E. Eep. 78. Or the falling of cornice from a building, though leased.— O'Connor v. Curtis, (Tex.), 18 S. W. Eep. 953, following O'Connor v. Andrews, 81 Tex. 28; 16 S. W. Eep. 628. Or leaving barrels in a passage way at night. — Brunker v. Cummins^ 133 Ind. 443; 32 N. E. Eep. 732. And for injuries to third persons caused by a nuisance created on the premises after the letting the tenant and not the" landlord is liable. — Ditchett V. E. E. Co., 67 N. Y. 425; Shindelbeck v. Moon, 32 Ohio St. 264; 30 Am. Eep. 584; Wolf «. Kirkpatrick, N. Y. Ct. App., supra; St. Louis V. Kaime, 2 Mo. App. 66; Eyan v. Wilson, 87 N. Y. 461; 41 Am. Eep. 384; Harris v. Cohen, 50 Mich. 324; Kalis v. Shattuck, 69 Cal. 593; 58 Am. Rep. 568; U Pac. Eep. 346; Borman v. Sandgren, 37 111. App. 160; O'Brien v. Greenbaum, 4 N. Y. S. Eep. 852; Baggage v. Powers, 7 N. Y. S. Eep. 306; McPartland v. Thoms, 4 N. Y. S. Eep. 100; Abbott o. Jackson, 84 Me. 449; 24 Atl. Eep. 900; Hussey v. Ryan, 64 Md. 426; 54 Am. Eep. 772. But the tenant of a burned building who has obtained his acquittance is not' liable for a personal injury caused by a stone falling from the building several days after the burning. — Franks v. City of St. Louis, 110 Mo. 516; 19 S. W. Eep. 938. In Eyan v. Wilson, supra, defendant rented one floor of a building to L. for a laundry and supplied him with motive power by a revolving shaft driven by steam. L. erected a partition near the shaft. The plaintiff in L.'S employ endeavored to pass between the partition and the shaft, and was caught by the shaft and injured. It was hel(^ that he had no cause of action against the defendant. But in Burdick v. Gheadle (26 Ohio St. 393), the lessor, under an agreement with the lessee, put up fixtures on the premises. The fixtures were insecurely fastened to the walls and the lessor, though requested, refused to repair them. They afterwards fell, injuring a customer of lessee. It was held that no action would lie against the lessor. The rule applies as between lessee and sub-lessee. — Clancy v. Byrne, 66 N. Y. 129; 15 Am. Rep. 391. See Gwathney v. Little Miami R. Co., 12 Ohio St. 92; Timlin v. Standard Oil Co., 126 N. Y. 514; 27 N. E. Eep. 786, modifying 7 N. Y. S. Rep. 158. Liability of Landlord to Tenant. — In the letting of an unfurnished house there is no implied warranty of fitness for occupation and the land- lord is not liable for injuries to the tenant resulting from its defective condition. — Krueger ». Ferrant, 29 Minn. 385; 43 Am. Eep. 223; Purcell V. English, 86 Ind. 34; 44 Am. Eep. 265; Woods v. Naumkeag Steam FENCES. 107 to fencing in cattle. An owner of cattle is bound, as we shall see, to exercise a reasonable control, an ordinary care Cotton Co., 134 Mass. 337; 45 Am. Rep. 344; Bowe v. Hunking, 135 Mass. 380; 46 Am. Hep. 471. See Edwards v. N. T., etc., R. CJc, supra; McLean v. Hcke W. & W. Co., 158 Mass. 47; 33 N. E. Rep. 499; Mc- Keon o. Cutter, 156 Mass. 296; 31 N. E.Rep. 389; Quinn ». Perham, 151 Mass. 162; 23 N. E. Rep. 735; Ackerly v. White, 58 Hun, 362; 12 N,. Y. S. Rep. 149; Ward v. Fagin, 101 Mo. 669; 14 S. W. Rep. 738; Sheri- dan b. Krupp, 14i; Pa. St. 564; 21 Atl. Rep. 670; McKenzie v. Cheet- ham, 83 Up. 543; 22 Atl. Rep. 469; Doyle v. Union Pac. Ry. Co., 147 U. S. 413; 13 S. Ct. Rep. 333; Little v. McAdaras, 38 Mo. App. 187; Perez ». Rayband, 76 Tex. 191; 13 S. W. Rep. 177. But see Leydecker V. Brintnall, 158 Mass. 292; 33 N. E. Rep. 399; Alperin v. Earle, 55 Hnn, 211 ; 8 N. Y. S. Rep. 51. Nor is the landlord liable to a subtenant. — Donaldson v. Wilson, 60 Mich. 86 ; 26 N. W. Rep. 842. The rule is different where the landlord retains control of the prem- ises. He is liable in such case. — Looney o. McLean, 129 Mass. 33 ; 37. Am. Rep. 295; Jones v. Friedenburg, 66 Ga.50d; 42 Am. Rep. 86; Toole V. Becket, 67 Me. 544; Blake v. Fox, 17 N. Y. S. Rep. 508; Peilu. Rein- hart, 127 N. Y. 381 ; 27 N. E. Rep. 1077 ; Sawyer v. McGUlicuddy, 81 Me. 318; 17 Atl. Rep. 124. Although the title to the premises be in his wife the landlord In actual control is responsible for the defeclire condition of a stairway. — Lindsey v. Leighton, 150 Mass. 285; 22 N. E, Rep. 901. Or reserves the right to use them. — Cannavan v. Conkling, 1 Daly, 509 ; I Abb. Pr. (N. s.) 271. As where a tenant of a part of a building is injured by the falling of the landlord's insecurely fastened signboard, which the latter appro- priated to his own use. — Payne v. Irvin, 144 lU. 482; 33 N. E. Rep. 756, afSrmlng 44 HI. App. 105. So where the owner retains control of the staircase in an office building he must keep the stairs in a safe condi- tion, though there be no contract with the tenants to that effect. — Miller V. Hancock, 4 Reports, 478 [1893] ; 2 Q. B. 197. See Poor v. Sears, 154 Mass. 539; 28 N. E. Rep. 1046. He is also liable, when, knowing the premises to be in a dangerous condition, he lets them without informing the tenant of the fact. — Coke V. Gutkese, 80 Ky. 598; 44 Am. Rep, 499 (rotten floor of privy vaultj; DoUardo. Roberts, 130 N- Y. 269; 29 N. E. Rep. 104; 8 N. Y. S. Rep. 432 affirmed; Trinity & S. Ry. Co. v. Lane, 79 Tex. 643; 15 S. W.Rep. 477; Smith V. Faxon, 156 Mass. 589; 31 N. E. Rep. 687; Davidson v. Fischer, II Colo. 583; 19 Pac. Kep. 652; Victory w. Foran, 56 N. Y. Super. Ct. Rep. 507; 4 N. Y. S. Rep. 392. Constructive notice to the landlord is suf- ficient Evers v. Well, 62 Hun, 622 ; 17 N. Y. S, Rep. 29. Where tenants of a tenement house are permitted to use the yard it must be made safe. — Canavan v. Stnyvesant, 27 N. Y. S. Rep. 413; 7 Misc. Rep, 113, 108 NEGLECT OF DUTIES EEQUIRING OEDINAKY CARE. over his tame animals, and no doubt one mode of doing that is by the erection of fences, but care may, of course, be taken in many other modes, as by tethering, watching, or keeping in outhouses ; and this subject will be found treated Such conduct amounts to fraud.— Wallace v. Zent, 29 How. Pr. 289; 1 Daly, 481. And where a landlord let premises, knowing that they were infected with small-pox and did not inform the tenant of the fact and he con- tracted the disease, the landlord was held liable. — Minor v. Sbarm, 112 Mass. 477; Cesar v. Karutz, 60 N. Y. 299. Case involving diphtheria submitted to the jury. — Cutter v. Hamlen, 147 Mass. 471 ; 18 N. B. Eep. 397. The landlord is not liable for the negligence of the tenant or his serv- ants in the use of water-pipes of the demised premises, not originally defective. — Taylor v. Bailey, 74 111. 178; Simonton v. Loring, 68 Me. 164; 28 Am. Eep. 29; Harris©. Cohen, 50 Mich. 324; Shindelbeck v. Moon, 32 Ohio St. 264; 30 Am. Rep. 584; 17 Am. Law Beg. (n. s.) 450; White V. Montgomery, 68 Ga. 204; Walker v. Globe Mfg. & Imp. Co., 56 N. Y. Super. Ct. Eep. 431; 4 N. Y. S. Eep. 193; Kenny v. Barns, 67 Mich. 336; 34 N. W. Eep. 587. In McCarthy w. New York, etc., Savings Bank (74 Me. 315; 43 Am. Eep. 591) a landlord set a water basin in the tenant's room, the apertures of which were not sufficient to carry off all the water that was delivered by the faucet when left open. The tenant carelessly left the faucet open and the water overflowed and injured the goods of another tenant occu- pying rooms on the lower story. It was held that the landlord was not liable. But a landlord who let tenements in a building, to different tenants with a right of way in common, over an uncovered piazza annexed to the rear of the building and extending its whole length and over steps lead- ing from the end of the piazza down to the street, was held liable to a tenant injured while in the exercise of due care, by falling upon ice which had accumulated upon the piazza and steps by reason of water flowing from a defective pipe connected with the roof of the building. — Watkins v. Goodall, 138 Mass. 533. Nor does the owner of a tenement house owe any duty to a tenant to remove the ice and snow from the sidewalk in front. — Little v. Wirth, 26 N. Y. S. Rep. 1110; 6 Misc. Rep. 301. A tenant who has actual knowledge of the defects in the premises may so contribute to his own injury that the landlord will be relieved of liability. — See Hamilton v. Feary, 8 Ind. App. 615; 35 N. B. Eep. 48: Town V. Armstrong, 75 Mich. 580; 42 N. W. Eep. 983; Handyside v. Powers, 145 Mass. 123; 13 N. B. Eep. 462. FENCES. 109 of in the next section, tit. " Animals " (z). It is true that owners and occupiers of land are under no duty at common Liw to fence out cattle (a), but persons who keep cattle must see that they do not trespass upon the land of others' (6). Again, owners or occupiers may be bound by prescription or usage or covenant, to fence (c), and then their obliga- tion is absolute, and the question of negligence does not [88] arise {d). Even in this case it must be remembered that it i^ only the adjoining owner who can complain of the non-repair of the fences, and a third person injured by such breach of the obligation can not bring an action for such breach (e). It has been well pointed out that the injury done to an animal straying is generally caused not immedi- ately by the fence, but by something in the field, and that there must be some negligence in respect of that which is in the field before the defendant can be made liable, other- wise the damage would be too remote (f). If the danger in the field is one which could have been reasonably foreseen, the defendant will be liable for negligence (g). The suffi- ciency of the fence is, of course, a question for the jury. It should be of sufficient height and strength to keep out animals such as are ordinarily kept in fields (A). It should be remembered that we are not here dealing with questions of (2) See post, s. 3, Animals. lln, 7N. H. B18; Gregg v. Gregg, 55 Pa- (a) 1 Wms. Sannders, 559, note (i), St. 227; Gardner v. Smith, 7 Mich. 110; ed. 1871 ; Wells v. Howell, 19 Johns. 385. Wells v. HoweU, 19 Johns. 385 ; Lawrence In America different ml es prevail in dtl • v. Combs, 37 N. H. 331 ; Bronson v. Coffin, ferentStatesapon this point, see Shear- 108 Mass. 175 ; Blchardson v. Milbnrn, 11 man, Ch. XIZ. Md- 340.]— [Castner v. Blegel, Bi N. J. (6) Boyle v. Tamlyn, 6 B. & C. 337. 198; 24 Atl. Bep. 481.] — [Barber v. Uensch, 157 Pa. St. 390; 27 (e) Oheetham v. Hampson, mpra; At. Bep. 708; 33 W. N. 0. 162; Falplt «. Shearman, ». 322. Matthews, 12 lU. App. 561.] ( /) Shearman, s. 324. '[1 Thomp. Neg. (c) Fixth V. Bowling Iron Co., ante 198.] (cowa eating Iron fencing) ; Lawrence (g) Powell v. Sallsbnry, 2 Y. & J. 391 ; V. Jentdns, L. B. 8 Q. B. 217; 12 L. J. Q. seejndgmentof Byles.J.,lnLeev.Blle7, B. 117 (cows eating yew tree).— [Ewrtng 31 L. J. C. P. 212, 216 (horse straying) ; V. Xortb Versailles Tp., 116 Fa. St. 309; Firth v. Bowling Iron Co., ante (cows 23 At Kep. 338.] eating iron fencing.) (d) Boyle V. Tamlyn, mpra; Barber (ft) Bessant v. G. W. By. Co., 8 0. B. V. Whlteley, 34 L. J- Q. B. 212; Lawrence N. S. 368; Chicago By. Co. v. Utley, 38 V. JenUns, supra; [Tewksbnry v. Buck- 111. 110. 110 NEGLECT OF DUTIES EEQOIEING OEDINAKT CARE. trespass. A man is bound to restrain his animals from tres- passing, and is liable in trespass for the injuries which they do, whether his fences are carefully or negligently kept («). Eailway companies are frequently bound by their acts to keep up fences for the protection of the owners of cattle, not for protection of passengers by train (k). In America it seems this protection is usually estended to all owners, [89] whether their land is contiguous to the line or not (I) ; but in England the protection is confined to adjoinihg owners or occupiers {m). A railway company agreed with one G. to fence his land from the railway, he releasing them from their statutory obligation in that respect. They made (i) Whether this extends to tres- (2) Shearman, s. iSS. [Dunkirk, etc., passes by smaller animals, sach as dogs, R. Co. v. Mead, 90 Pa. St. 451; cats, fowls, etc., seems doabtfnl. See McCall v. Chamberlain, 13 Wis. 637; Reed v. Edwards, 17 O. B. K. S. 2i5. Toledo, etc., B. Co. . 184. A parol agreement to that effect would not be binding. — Wilder v. Maine Central K. Co., 65 Me. 332; Vandergrift v. Delaware E. Co., 2 Houst. 287; St. Louis, etc., B. Co. v. Todd, 36 111. 409; Hunter ». Burlington, etc., Ey. Co., 76 la. iSO; 41 N. W. Eep. 305. But when made by deed, where the intent to charge the land appears, such an agreement, is a covenant rnnning with the land binding grantees, lessees, tenants, etc. — Brown v. Coffin, 108 Mass. 175; Gill v. Atlantic, etc., E. Co., 27 Ohio St. 240; Indianapolis, etc., E. Co. v. Shriner, 17 Ind. 296; Duffy New Yorib & Harlem E. Co., 2 Hilt. 496. See St. Louis, I. M. & S. Ey. Co. V. Walbrink, 47 Ark. 330; 1 S. W. Eep. 645. But such agreements will not affect subsequent purchasers without actual notice, unless recorded. — Pittsburg, C. & St. L. Ey. Co. v. Bosworth, (Ohio), 13 N. E. Eep. 533. And an agreement recited in a record of proceedings for condemnation that the company is to maintain the fence runs with the land. — Huston V. Cincinnati, etc., E. Co., 21 Ohio St. 236. In some States the obligation imposed by such statutes has been held to extend only to the owners and occupiers of the adjoining close. RELEASE OF STATUTORY DUTY TO FENCE. Ill a sufficient fence, but neglected to keep it up, and a cow belonging to G.'s tenant fell into the ditch and was killed. Maynard v. Boston, etc., K. Co., 115 Mass. 158; Bemis v. Connecticut, etc., E. Co., 42 Vt. 375 ; Cornwall v. Sullivan E. Co., 28 N. H. 161 ; Walsh V. Virginia, etc., R. Co., 8 Nev. Ill ; Pittsburgh, etc., R. Co. v. Methven, 21 Ohio St. 686; McCoy v. Southern Pac. Co. (Cal.), 26 Pac. Rep. 629; Baltimore & O. Ry. Co. v. Wood, 47 Ohio St. 431; 24 N. E. Rep. 1077. This rule includes a bare licensee.— Summers v. Hannibal & St. Ji E. Co., 29 Mo. App. 41 ; Hendrix v. St. Joseph & St. L. Ey. Co., 38 Mo. App. S20. In others the obligation to fence extends to all. — Toledo, etc., E. Co. V. Cary, 37 Ind. 112; McCall c. Chamberlain, 13 Wis. 637; see Veerhusen V. Chicago, etc., Ey. Co., 53 Wis^. 689; Dunkirk v. Mead, 90 Pa. St. 454; CoTwin V. New York, etc., R. Co., 13 N. Y. 42; see Marietta, etc., R. Co. o. Stephenson, 24 Ohio St. 48; Spinner v. New York Central, etc., R. Co., 67N. Y. 153; Jackson v. St. Louis, etc., R. Co., 43 Mo. App. 324; Gordon «. Chicago, etc., Ry Co., 44 Mo. App. 201. In those States where the common-law rale obtains, permitting stock to run at large is such negligence on the part of the owner as to bar his right of recovery for injuries to them, unless such injury was wanton or willful.— Beach on Contributory Negligence (2d ed.),pp. 258, 282, 293; Railroad Co. v. Skinner, 19 Pa. St. 298; Spinner v. New York Cent., etc., R. Co., 67 N. Y. 153: Eames v. Salem, etc., R. Co., 98 Mass. 560; Bennett o. Chicago, etc., R. Co., 19 Wis. 146. In those States where the so-called American rule obtains, railway companies are liable only for the ordinary negligence of their servants toward straying cattle. — Illinois Central R. Co. v. Bull, 72 HI. 537; Nashville, etc., R. Co. v. Comans, 45 Ala. 437; GiU v. Atlantic, etc., R. Co., 27 Ohio St. 240; Hawker t7. Baltimore, etc., R. Co., 15 W. Va. 628; Swearinger v. R. Co., 64 Mo. 73; Durham v. Wilmington, etc., E. Co., 82 N. C. 352; Mississippi, etc., E. Co. v. Miller, 40 Miss. 45; Talbot v. Min- neapolis, etc., R. Co., 82 Mich. 66; 45 N. W. Eep. 1113. Certainly for gross negligence. — Chicago, etc., E. Co. v. Eellam, 92 111. 245; 34 Am. Eep. 128; L. E. & F. S. Ey. Co. v. Finley, 37 Ark. 663. Fence. — A railroad company is under no common-law obligation to fence its track. — McDonald v. PIttsfield, etc., R. Co., 115 Mass. 564; Hurd V. Rutland, etc., R. Co., 25 Vt. 116; Perkins v. £aston, etc., R. Co., 29 Mo. 307; Mills v. Stark, 4 N. H. 512; Terry v. New York, etc., R. Co., 22 Barb. 579. There are no general statutes compelling railroad companies to fence in Louisiana. — Stevenson v. New Orleans, etc., R. Co., 35 La. Ann. 498. In Maryland, where the common-law rule that the owner of cattle mast keep them within his own close prevails, and railroad companies are not required to fence, it was held that one whose cattle strayed upon a railroad and were run over by a train which was damaged by the coi- 112 NEGLECT OF DUTIES EEQUIEING OKDINAEY CARE. It was held that the agreement did not exonerate them from their liability under the Eailways Clauses Act, 8 & 9 Vict. lision was liable , to the company. — Annapolis, etc., E. Co. v. Baldwin, 60 Md. 88; 47 Am. Eep, 711; see Housatonic, etc., K. Co. v. Knowles, 30 Conn. 313; N. Y. & Erie R. Co. v. Skinner, 19 I^. St. 2&8; Drake v. Pittsburgh, etc., E. Co., 51 Pa. St. 240; Northeastern E. Co. b. Sineath, 8 Eich. 185; Sinram v. Pittsburgh, etc., E. Co., 28 Ind. 244; Hannibal, etc., E. Co. V. Eenny, 41 Mo. 272, and Sherman v. Anderson, 27 Kan. 333; 41 Am. Rep. 414. In most of the States there are statutes requiring railway companies to fence their tracks. ConnecJicMf.— Bulkley v. N. T., etc, E. Co., 27 Conn. 480. /Kimois.— Indianapolis, etc., E. Co. v. Hall, 88 111. 368; Cannon v. Louisville, etc., R. Co., 34 111. App. 640; Indiana & I. S. E. Co. v. Samp- son, 31 111. App. 513. Indiana. — Cincinnati, etc., E. Co. v. Hildreth, 77 Ind. 504; Chicago & S. E. Ey. Co. V. Abbott, 10 Ind. App. 99; 37 N. E. Rep. 557; Midland Ey. Co. V. Gascho, 7 Ind. App. 407; 34 N. E. Eep. 643; Jeffersonville, M. & I. E. Co. V. Peters (Ind.), 27 N. E. Rep. 229; Ohio, I. & W. Ey. Co. xi. Heady (Ind. App.), 28N.E. Eep. 212; 5 Ind. App. 328 ; 32 N. E. Eep. 213; Louisville, E. & St. L. E. Co. v. Hart, 2 Ind. App. 130; 28 N. E. Rep. 218. ibwa.^ Pearson ». Milwaukee, etc., E. Co., 45 la. 497. Kansas. — AtcTiison, etc., E. Co. v. Cash, 27 Kan. 587; Missouri Pac. Ey. Co. V. Eicketts, 45 Kan. 617; 26 Pac. Eep. 50; Missouri Pac. Ey.Co. ». Eckel, 49 Kan. 794; 31 Pac. Rep. 693. Jfaine.— Wilder v. Maine, etc., R. Co., 66 Me. 333; 20 Am. Eep. 698, Massachusetts. — Maynard v. Boston, etc., E. Co., 115 Mass. 458; 15 Am. Eep. 119. Michigan. — Grand Bapids, etc., E. Co. v. Monroe, 47 Mich. 152; Parker v. Lake Shore & M. S. Ey. Co., 93 Mich. 607; 53 N. W. Rep. 834; Stem V. Michigan Cent. E. Co., 76 Mich. 691 ; 43 N. W. Rep. 587. Minnesota. — Fitzgerald v. St.iFanl, etc., K. Co., 29 Minn. 336 ; 43 Am. Eep. 212; Finch o. Chicago, etc., Ey. Co., 46 Minn. 260; 48 N. W. Rep,. 916. ilfisso«ri. — Silver v. Kansas City, etc., E. Co., 78 Mo. 628; Cole B. Chicago, B. & Q. E. Co., 47 Mo. App. 624-, Baker ». Chicago, M. & St. P. Ry. Co., 47 Mo. App. 260; McNear o. Wabash By. Co., 42 Mo. App. 14. New Hampshire. — Cressey v. Northern, etc., R. po., 66 N. H. 390; 47 Am. Eep. 227. Nevj TorA. — Spinner ». New York, etc., R. Co., 67 N. Y. 163. Nevada. — Walsh v. Virginia, etc., E. Co., 8 Nev. 111. Ofti'o. — Cincinnati, etc., R. Co. v. Smith, 22 Ohio St. 227; 10 Am. Rep. 722. Oregon. — Sullivan v. Oregon Ry. & Nav. Co., 19 Ore. 319; 24 Pac. Eep. 408. STATDTORY DOTY TO FENCE EXCEPTIONS. 113 c. 20, s. 68, to maintain the fence and ditch for the benefit of the occupier (n). (i») Corry v. G. W. Ry. Co., 6 Q. B. D. 237; 7 Q. B. D. 322. Utah. — Stlmpson v. Union Pao. Ry. Co., 8 Utah, 349; 31 Pac. Rep. 449. Vermont. —CaasAon v. Central, etc., R. Co., 56 Vt. 390; 48 Am. Rep. 793. Washington. — Oregon Ry. & Nav. Co. v, Dacres, 1 Wash. 190; 23 Pac. Rep. 41S. Wisconsin. — Veerhusen v. Chicago, etc., R. Co., 63 Wis. 689. Railroad companies are not generally reqal^ed to fence their tracks at station grounds and their approaches. — Chicago, etc., R. Co. v. Camp- bell, 47 Mich. 265; 11 N. W. Rep. 152; Atchison, etc., R. Co. v. Griffis, 28 Kan. 639; Swearingen v. Missouri R. Co., 64 Mo. 73; Toledo R. Co. V. Chapin, 66 111. 504; McGrath v. Detroit, etc., R. Co., S. C. Mich., 24 N. W. Rep. 854; Chicago, B. & Q. R. Co. o. Hans, 111 III. 114; Smith V. Minneapolis & St. L. R. Co., 37 Minn. 103; 33 N. W. Rep. 316; Peters V. Stewart, 72 Wis. 133; 89 N. W. Rep. 380; Dixon v. New York C. & H. R. Co., 4 N. Y. S. Rep. 296 ; Louisville, E. & St. L. C. R. Co. v. Scott, 34 111. App. 635; Straub v. Edely, 47 Mo. App. 189; Cleveland, C, C. & St. L. Ry. Co. o. Abney, 43 111. App. 92; Cleveland,, C, C. & St. L. Ry. Co. V. Myers, 43 111. App. 251. (This rule does not include flag stations.— Hurt o. St. Paul, M. & M. Ry. Co., 39 Minn. 485; 40 N. W. Rep. 613; Gulf, C. & S. E. Ry. Co. v. Wallace, 2 Tex. Civ. App. 270; 21 S. W. Rep. 973, following I. & G. N. R. Co. v. Cocke, 64 Tex. 154; or " switch limits," JefCersonvUle, M. & I. R. Co. v. Peters, 1 Ind. App. 69 ; 27 N. E. Rep. 299.) At crossings of public streets in cities or towns. — Long o. Central Iowa Ry. Co., S. C. la., 21 N. W. Rep. 122; see Blanford v. Minneapolis & St. L. Ry. Co., 71 la. 310; 32 N. W. Rep. 357. At highway crossings. — Missouri, etc., R. Co. v. Leggett, 27 Ean. 323; Louisville, etc., B. Co. v. Francis, 58 Ind. 389; Walton?;. St. Louis, etc., R. Co., 67 Mo. 56; Soward, etc., B. Co., 30 la. 551; Missouri Pac. By. Co. V. Kocher, 46 Ean. 272; 26 Pac. Bep. 731; Sather v. Chicago, etc., By. Co., 40 Minn. 91; 41 N. W. Bep. 458. At private roads extending across track and connecting with public highway. — Pittsburgh, etc., B. Co. v. Cunnington, 39 Ohio St. 327; Indianapolis, etc., B. Co. v. Thomas, 84 Ind. 194; Roberts v. Quincy, etc., R. Co., 43 Mo. App. 287, but see Jenkins v. Chicago & A. B. Co., 27 Mo. App. 578. Within the limits of incorporated cities or towns in some States. — Chicago, etc., R. Co. v. Rice, 71 111. 567; Edwards v. Hannibal, etc., B. Co., 66 Mo. 571; Rogers v. Chicago, etc., B. Co., 26 la. 558; Chicago, B. & Q. B. Co. V. James, 26 Neb. 188; 41 N. W. Bep. 992; Chicago, B. & Q. B. Co. V. Hogan, 30 Neb. 686; 46 N. W. Bep. 1015. 8 114 NEGLECT OP DUTIES REQUIRING ORDINAET CARE. They are also frequently bound by their acts to fence off, [90] by gates or otherwise, a highway crossing the line The Supreme Court ol Minnesota very properly held, in the case of La Paul V. Truesdale (44 Minn. 275; 46 N. W. Rep. 363), that a railroad company should not be released from the statutory duty of fencing its track, where practicable, by the mere fact that the track is within cor- porate limits. By the Illinois statute railroads are boand to fence " except at the crossings of public roads and highways, and within such portions of incorporated towns or villages as are or may hereafter be laid out and platted into lots and blocks." In Chicago, Burlington and Qnincy E. Co. V. Haus, 111 111. 114, this was held not to require fencing public stations or depot grounds, although not within villages, towns or cities, nor at highway crossings. So much of Chicago, Milwaukee and St. Paul K. Co. V. Bumser, 109 111. 402, as intimates a different doctrine, was disapproved. But in most of the States statutes require that cattle-guards shall be constructed at all highway and farm crossings. — Spinner v. New York Central, etc., E. Co., 67 N. Y. 153; Perkins v. Eailroad Cos., 29 Me. 307; Toledo, etc., E. Co. o. Owen, 43 Ind. 405; Chicago, K. & N. Ey. Co. V. Behney, 48 Kan. 47; 28 Pac. Eep. 980; Nelson v. St. Louis & S. F. Ey. Co., 49 Kan. 165; 30 Pac. Eep. 178; Parker v. Lake Shore & M. S. Ey. Co., 93 Mich. 607; 53 N. W. Eep. 834; Caldon v. Chicago, etc., Ey. Co., 86 Wis. 627; 55 N. W. Eep. 955; Ham v. Newberg, D. & C. E. Co., 69 Hun, 137; 23 N, Y. S. Eep. 197; Cole v. Chicago, B. & Q. E. Co., 47 Mo. App. 624. (But not at private or farm crossings. — Omaha & B. XJ. E. Co. V. Beverin, 36 Neb. 318; 46 N. W. Eep. 842.) In Iowa it is held a railroad must fence its road against stock running at large on the line of its road within the limits of a corporate town and outside of the first street or alley in such town. — Coyle v. Chicago, etc., E. Co., 62 la. 518; 17 N. W. Eep. 771. But it has no right to fence its tracks where they cross a public street in a city or town, and the owner of an animal killed at such point cannot recover therefor on the ground of the failure of the company to fence. — Long V. Central Iowa Ey. Co., 64 la. 657; 21 N. W. Eep. 122. A railroad company is not relieved of the obligation of fencing its track because the work of construction is in the hands of a contractor and not yet completed. — Silver v. Kansas City, etc., E. Co., 78 Mo. 528. Nor by the negligent omission of proper guards by the contractor. — Chicago, K. & W. R. Co. v. Hutchinson, 45 Kan. 186; 25 Pac. Eep. 676. Nor by a contemporaneous act restraining animals from running at large.— Cole v. Chicago, B. & Q. R. Co., 47 Mo. App. 624. Where railroads are required to fence, they must fence on both sides of their road (Tredway o. Sioux City, etc., R. Co., 43 la. 627; Wabash, etc., E. Co. V. Zeigler, 108 III. 304; Eames v. Salem, etc., R. Co., 98 Mass. SUFFICIENCY OF FENCE. 115 upon a level, and they become liable for negligently omitting to [91] keep such gates closed where cattle 560 ; Ohio & M. By . Co. 8. People, 121 III. 183 ; 13 N. E. Bep. 236) , unless a fence would interfere with the business of an adjacent owner (Ohio, etc., B. Co. V. Bowland, 60 Ind. 349), or the running of the road, as a switch (EvansvUle, etc., B. Co. v. 'Willis, 93 Ind. 507), or where the track is crossed by a county road and depot (Cincinnati, etc., E. Co. v. Wood, 82 Ind. 593), but mere difficulty or inconvenience to the company creates no exception under the Kansas statute (Atchinson, etc., B. Co. v. Shaft, 6 Pac. Bep. 908), and fact that the land on either side of defendant's track is occupied by the tracks of other companies is no excuse (Kelver V. New York, etc., E. Co., 12 N. Y. S. Eep. 723), but it may be impossible to fence (Jennings v. St. Joseph & St. L. Ey. Co., 37 Mo. App. 651). In Indiana it was held where an animal was killed by cars having entered upon a railroad at a place not fenced on either side, but where it was practicable to fence on one side, the company was not liable, under §§ 4025-4032, B. S. 1881.— Indiana, etc., B. Co. v. Leak, 89 Ind. 596; Wabash, etc., B. Co. v. Nice, 99 Ind. 152. The fact that a railroad track runs parallel with and adjoining a public highway or another railroad is held in Missouri not to exempt it from the duty of fencing when it passes through inclosed or cultivated fields. — Bozelle v. Hannibal, etc., B. Co., 79 Mo. 349; Emmerson v. St. Louis & H. Ey. Co., 35 Mo. App. 621. So in Kansas, Missouri Pac. By. Co. iV. Eckel, 49 Kan. 794; 31 Pac. Bep. 693. So in New York, Kelver v. New York, etc., B. Co., 126 N. Y. 365; 27 N. B. Eep. 563. In Kansas a railroad in order to be absolved from liability for stock killed by it in the operation of its road must be " enclosed with a good and lawful fence to prevent such animals from being on such road." — Atchison, etc., B. Co. v. Shaft, 33 Kan. 621 ; 21 C. L. J. 249. Building fences along the sides of the road is not alone sufficient. — Id. In Minnesota the statute requiring railroad companies to fence their roads and to build cattle-guards at wagon crossings applies as well to the limits of incorporated cities and villages as the country. — Greely v. St. Paul, etc.. By. Co., 33 Minn. 116; 22 N. W. Bep. 179. A railroad company is not bound to erect a fence to keep children off its track. — Fitzgerald v. St. Paul, etc., By. Co., 29 Minn. 306; 43 Am. Bep. 212; Keyser v. Chicago, etc., By. Co., 66 Mich. 359; 2Z N. W. Bep. 311; Walkenhauer v. Chicago, etc., B. Co., 17 Fed. Eep. 136. See Over- holt V. Vieths, 93 Mo. 422 ; 6 S. W. Eep. 74. Sufflciency ol Pence. — Where the statute does not specify the kind of fence to be built the company may build such a fence as is usual in that locality and is regarded as sufficient to keep cattle out or any fence which is sufficient for that purpose and which is not injurious to adjoin- ing proprietors, and It must be maintained without negligence ; all of 116 NEGLECT OP DUTIES REQUIRING ORDINARY CARE. are straying upon such highway or are lawfully traveling along it (o). But, [92] where a highway runs parallel (o) Fawcett' V. N'orth Midland Bj. 529; Bnssellt;. Hanley, 20Ia. 49. Where Co., 16 Q. B. 610. As to level crossings, they are for the convenience of the see the Bailways Clauses act, 1S63 (2S land-owner and he falls to keep them & 27 Tlct. c. 92), ss. 6, 6, 7. [Spinner ti. closed, the company is not liable. Bond N. Y. Cent. B. B. Co., 67 N. Y. 153; Chi- v. EvansviUe, etc., B. Co., 100 Ind. 301.} cago, B. B. Co., etc., v. Magee, 60 111. which are usuailly questions for the jury. — Bronson v. Coffin, 108 Mass. 175; Knright v, San Francisco, etc., K. Co., 33 Cal. 230; Ferris v. Van Buskirk, 18 Barb. 397; Leyden v. New York, etc., E. Co., 55 Hun, lit; 8 N. Y. S. Hep. 187; Leebrick v. Eepublican Val. & S. W. R. Co., 41 Kan. 756; 21 Pac. Rep. 796; Pennsylvania Co. v. Lindley, 2 Ind. App. Ill; 28 N. E. Rep. 106; Fremont, E. & M. V. R. Co. v. Pounder, 36 Neb. 247; 54 N. W. Rep. 609; Chicago, B. & Q. E. Co. v. Finch, 42 111. App. 90; Eake Erie & W. Ry. Co. ■». Fishback, 6 Ind. App. 403 ; 32 N. E. Rep. 346 ; Ohio, I. & W. Ry. Co. ■». Neady, 5 Ind. App. 328; 32 N. B. Rep. 213. The same rule applies to the erection and maintenance of cattle-guards, — Wabash R. Co. v. Ferris, 6 Ind. App. 30; 32 N. E. Rep. 112; Schuyler v Fitchburg.R. Co., 65 Hun, 622; 20 N. Y. S. Rep. 287; Parker v. Lake Shore & M. S. Ry. Co., 93 Mich. 607; 63 N. W. Rep. 834. Various statutes prescribe the kind of fence to be maintained. In New York a crooked or " Virginia " fence has been held sufficient. — Fer- ris V. Van Buskirfc, 18 Barb. 397. In Missouri a post and plank fence four and a half feet high is a law- ful fence. — King v. Chicago, etc., B,'. Co., 79 Mo. 328. The jury may without evidence of the fact declare a fence two feet eight Inches high, to be insufficient. — Leyden v. New York C. & H. R. E. Co., 65 Hun, 114; 8 N. Y. S. Rep. 187. A bluff, hedge or a ditch, if sufficient to keep cattle from entering upon the track in Iowa (Hilliard ». Chicago, etc., R. Co., 37 la. 442; Collier v. Georgia R, R. Co., 76 Ga. 611), and under Iowa code, § 1289, a fence reasonably sufficient to prevent liye stock comiag upon the track is held lawful.— Shellabarger v. Chicago, etc., R. Co., 23 N. W. Rep. 168. In Minnesota a wire fence constructed in accordance with the pro- visions of Gen. St. Minn. 1878, c. 18, §2, is held sufficient. — Haver- son V. Minneapolis, etc., Ry. Co., 19 N. W. Rep. 392. Willow trees are held not a sufficient fence. — Brocks. Connecticut, etc., R. Co., 35 Vt. 373. Formerly in Iowa and Kansas railroads were required to fence against swine. — Lee v. Minneapolis, etc.,E. Co., 66 la. 131; 23 N. W. Rep. 299; Missouri Pac. Ey. Co. v. Roads, 33 Kan. 640; 7 Pac. Rep. 213. In Iowa this rule has been changed by Eev. Code, § 1607, see Panther v. Trauman (la.J, 56 N. W. Rep. 289. In Kentucky the Act of May, 1890, forbids that any wire other than DDTY JO KEEP IN REPAIR. 117 ■with and adjoining to the railway, the owners of cattle coming out of fields beyond [93] the highway are not smooth and round wire shall be used in fences on the public roads. See Commonwealth v. Barrett CKy.), 17 S. W. Eep. 336. Duty to Keep In Repair. — A railway company is bound to keep its lences and cattle-guards in repair. — Bennett v. Wabash, etc., B. Co., 61 la. 355; MQler B. Chicago, etc., R. Co., 24 N. W. Eep. 36; Davis v. Han- nibal & St. J. Ey. Co., 19 Mo. App. 425; Taft v. New York, P. & B. R. Co., 157 Mass. 297; 32 N. E. Rep. 168; Peoria, D. & E. Ey. Co. v. Babbs, 23 lU. App. 454; Gould v. Bangor & P. B. Co., 82 Me. 122; 19 Atl, Itep. 94. It must keep its cattle-guards free from accumulations of snow and ice. — Dnnnlgan v. Chicago, etc., R. Co., 18 Wis. 28; Blair v. Minne- apolis, etc., Ry. Co., 24 N. W. Rep. 658; Schuyler v. Fitchbnrg R. Co., 65 Hun, 622; 20 N. T. S. Rep. 287. WhUe a railroad company is bound to keep its fences in repair, yet haying built a sufficient fence, it has a right to presiune that it will re- main in repair for a reasonable time and is not bound to keep constant watch over it, and the question whether it has kept a sufficient watch or not is for the jury. — Illinois Central R. Co. v. McEee, 43 111. 119. Whether an inspection of fences every two days is sufficient exercise of diligence in this respect is a question of fact to be determined by the jury with reference to the circumstances of the case. — Evans o. St. Paul, etc., E. Co., 30 Minn. 489. Where a gate at a farm crossing had been out of order for weeks, and stock entering through it upon defendant's track were there killed; it was held that defendant was liable. — Chisholm v. Northern Fac. E. Co., S3 Minn. 122; 54 N. W. Rep. 1061. Where a fence which was washed away by a storm was not repaired in a day when it could have been repaired in an hour, it was held that the company was liable for injury to cattle on the track. — Feet v. Chicago, etc., Ry. Co., 88 la. 520; 55 Mo. Rep. 508. For cases holding the railroad liable, on special facts, see Hogan v. Kentucky Union Ey. Co. (Ky.), 21 S. W. Eep. 242; Shotwell v. St. Joseph & St. L. Ey. Co., 37 Mo. App. 654; San Antonio & A. P. Ey. Co. V. Knoepfli, 82 Tex. 270; 17 S. W. Rep. 1052. Where it appeared that the section foreman had gone ever the road in the forenoon, and that the fence was burned about noon and cattle strayed on the track and were killed about six o'clock and that the section man did not know of the burning of the fence untU the next morning, it was held that the railroad company was not chargeable with negligence. — Toledo, etc., R. Co. v. Bder, 45 Mich. 329. The plaintlfE must show that the company knew of the defect or cir- onmstances which show that the company ought to have known it. — Toledo, etc., R. Co. v. Cohen, 44 Ind. 444; Ferry v. Dubuque, etc., B. 118 NEGLECT OF DUTIES REQUIRING^ ORDINAKY CARE. owners or occupiers of adjoining land, but tlie highway- is the adjoining land and the railway company is not liable {p). (p) Manch. Sheff. & Line. Ry. v. company wonld not be relieved of the Wallls, 14 C. B. 213. It the cattle were duty of fencing in some Slates In this lawfully passing along the highway, it country. Bozelle v. Hannibal, etc., R. seems the owner wonld be an occupier Co., 79 Mo. 349; Indianapolis, etc., R. B. of the highway, and the company would Co. v. McKlnney, 24 Ind. 283; Indiana- be liable, see 14 C. B. 224, supra; and polls, etc., R. R. Co. v. Guard, 24 Ind. 222, see Midland Ry. Go. v. Dakin, 17 C. B . where the protection is extended to all 126. [Under such circumstances the owners. — Note I, mite.] Co., 36 la. 102; Indiana, I. & I. Ky. Co. v. Dooling, 12 HI. A.pp. 63; Peoria, B. & E. Ry. Co. v. Aten, 43 lU. App. 68. Frozimate Cause. — For cousequential damages resulting from fright to animals not caused by actual collision or any negligence or wilUul misconduct on the part of the servants of the company the company Is not liable. As where a horse got upon a railroad track for want of a fence and was frightened by the approach of a train, and in its flight was injured by jumping a cattle-guard or coming in contact with a wire fence, it was held the owner could not recover. — Schertz v. Indianapolis, etc., By. Co., 107 111. 577. S. P., Dooley v. Missouri Pac. Ey. Co., 36 Mo. App. 381. See Missouri Pac. Ry. Co. v. Eckel, 49 Kan. 794; 31 Pac. Rep. 698. Under the New York statutes, it is held that the injury must be caused by some act on the part of the company or its agents ; and where an ani- mal injures itself on the track, as by falling through a bridge, the com- pany will not be liable (Knight v. New York, etc., E. Co., 1 N. E. Rep., 108); likewise under the statute of Tennessee (Holder v. Chicago, etc., B. Co., 11 Lea, 176), Missouri (Hughes v. Hannibal, etc., B. Co., 66 Mo. 325) ; Iowa (Kraus v. B. C. R. & N. R. Co., 55 la. 338), and Nebraska.— Burlington, etc., R. Co. v. Shoemaker, S. C. Neb., 25 N. W. Rep. 365. A railroad is liable for damages to crops resulting from tearing down a fence on its right of way just purchased from the owner of the crops. — Chattanooga, R. & C. R. Co. v. Brown, 84 Ga. 256; 10 S. E. Bep. 730. Under the Minnesota statutes the liability of a railroad company for injuries to animals caused by a failure to fence, is not confined to inju ries caused by collisions with trains, but extends to any injuries to animals getting on the track which might naturally and reasonably be expected to result from such neglect, in view of the character and condi- tion of the railroa,d and the uses to which it is to be put; and where a colt got on the track and broke his leg by getting his foot into a small hole no larger than his foot, it was held the company was not liable. — Nelson v. Chicago, etc.. By. Co., 30 Minn. 74. But where cattle are frightened by a train and run upon the track anrl are killed, the company is liable for its neglect to fence, as It is required to.— Louisville, E. & St. L. B. Co. v. Hart, 2 Ind. App. 130; 28 N. £. CONTEIBUTOEY NEGLIGENCE. 119 [94] Where cattle are by permission of the railway company upon land of their own adjoining the railway, the Bep. 218. See LouisviUe & N. B. Co. v. Shelton, 43 111. App. 220 ; Graham V. President, etc., of D. & H. Co., 46 Hnn, 386. Contributory Negligence. — In those States where the common-law role prevails requiring owners of cattle to restrain them, the contributory negligence of the owners in failing to restrain them will generally pre- vent a recovery from a railway company upon whose track they have been killed or injured. — Johnson v. Chicago, etc., B. Co., 29 Minn. 425; Wilder v. Maine, etc., B. Co., 65 Me. 533; McDonnell v. Fittsfleld, etc., R. Co., 115 Mass. 564; Mayberry v. Concord E. Co., 47 N. H. 391; Giles V. Boston, etc., B. Co., 55 N. H. 552 ; Trow v, Vermont, etc., B. Co., 24 Vt. 488; Lawrence v. Milwaukee, etc., B. Co., 42 Wis. 322. In some States it has been held that the contributory negligence of the owner in allowing his cattle to run at large will not bar his recovery against a railroad company for injuries caused by a failure to maintain a fence. — Inman v. Chicago, etc., B. Co., 60 la. 459; Atchison, etc., B. Co. V. Shaft, 33 Kan. 521; 6 Pac. Bep. 908; 21 C. L. J. 249. See Kansas City, etc., B. Co. v. McHenry, 24 Kan. 601 ; Grand Bapids, etc., B. Co. V. Cameron, 45 Mich. 451 ; Burlington, etc., B. Co. v. Webb, 18 Neb. 215; 24 N. W. Bep. 706; Louisville, etc., B. Co. v. Whitesell 68 Ind 297; Krebs v. MinneapoUs, etc., B. Co., 64 la. 670; 21 N. W. Bep. 131 ; Je:KersonviIle, etc., B. Co. v. Bossy 37 Ind. 549; Chicago & E. B. Co. v. Brannegan, 5 Ind. App. 540; 32 N. E. Bep. 790; Quackenbush v. Wiscon- sin & M. E. Co., 71 Wis. 472; 37 N. W. Bep. 834; Gulf, C & S. F. By. Co. V. Keith, 74 Tex. 287; 11 S. W. Bep. 1117. Even in violation of statute law. — Krebs v. Minneapolis, etc., B. Co., 64 la. 670; 21 N. W. Bep. 131; Atchison, etc., E. Co. v. Bradshaw, S. C. Kan., 6 Pac. Bep. 917; Chicago, etc., B. Co. v. Sims, 7 Neb. 691; 24 N. W. Bep. 388; GUlam v. Sioux City, etc., B. Co., 26 Minn. 268; Watier v. Chicago, etc., B. Co., 31 Minn. 91. And even though they were straying on land which did not belong to their owner. — Dunkirk, etc., R. Co. v. Mead, 90 Pa. St. 491; Keliher v. Connecticut, etc., B. Co., 107 Mass. 411; Toledo, etc., B. Co. v. Cary, 37 Ind. 172; Bailway Co. v. Howard, 40 Ohio St. 6; McCall v. Chamber- lain, 13 Wis. 637; Gillam v. Sioux City, etc., B. Co., 26 Minn. 91. Especially where the land through which the road ran belonged to the owner of the cattle and they got upon the track through the failure of the company to fenee, and not through any fault of the owner. — Cincin- nati, etc., By. Co. v. Hildi-eth, 77 Ind. 504; McCoy v. California Pac. B. Co., 40 Cal. 532; Hlnman v. Chicago, etc., B. Co., 28 la. 491; Keech V. Baltimore, etc.. By. Co., 17 Md. 32 ; Shepard v. Buffalo, etc., B. Co., 35 N. T. 645; Wilder v. Maine Cent. B. Co., 65 Me. 332; Meadw. Burlington, etc., B. Co., 62 Vt. 278 ; White v. Concord R. Co., 30 N. H. 188. Although the railroad owned the strip upon which the track was 120 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. company [95] are not liable for injuries done to such cattle upon their line, as the statute only applies to adjoin- located, and where the animal was killed. — Gooding v. The Atchison, etc., B. Co., 32 Ean. 150. In New York it was<.held in a comparatively early case that contribu- tory negligence of the owner in failing to keep his cattle from straying off his laud was no defense in an action against a railroad company for injuries caused by failure to fence its track. — Corwinc. New York, etc., R. Co., 13 N. Y. 42. A contrary ruling was made in Hance v. Cayuga, etc., B. Co. (26 N. Y. 428). But the doctrine of Corwin v. New York, etc., B. Co. appears to be still the law of that State. — Beach on Contributory Neg., 2d ed., p. 241. It is followed by the Supreme Courts of the State (21 C. L. J. 400, citing Sheaf v, Utica, etc., B. Co. 2 N. Y. S. C. (Thomp. v. Cook) 388; Fanning «. Long Island E. Co., Id. 585; Bhodes v. Utica, etc., B. Co., 5 Hun, 844.) In Indiana and Michigan it appears to have been previously held that the contributory negligence of the owners of animals in allowing them to escape or run at large was no defense in an action under the statute (JefCersonvUle, etc., B. Co. o. Boss, 37 Ind. 649; Elint, etc., B. Co. v. Luil4, 28 Mich. 610) ; but later authorities hold the contrary — Louisville, etc., B. Co. V. Whitesell, 68 Ind. -297; Grand Bapids, etc., B. Co., v. Cameron, 45 Mich. 451. In Ohio, continuing to pasture hogs in a field, with a knowledge on the part of the owner of a defect in the fence,wa8 held not to be contrib- utory negligence in an action against the company (C. C. C. & I. B. Co. v. Scudder, 40 Ohio St. 173), and in Vermont, a railroad company was held liable for killing a horse which got upon the track through a defective fence, though the owner knew of the defect, and that the horse was " breechy," and there was no negligence in running the train. — Congdqn V. Central, etc., R. Co., 66 Vt. 390; 48 Am. Bep. 793. And see Cressy «. Northern B. Co., 59 N. H. 564; 47 Am. Bep. 227. But where one, knowing that a severe storm on Saturday had pros- trated fences, on Sunday turned his cattle upon uninclosed lands without inquiry as to whether the railroad fences abutting thereon were uninjured, was held guilty of such contributory negligence as would defeat his recovery for injuries received by such cattle. — Carey v. The Chicago, etc., By. Co., 61 Wis. 71. See Eddy©. Kinney, 60 Vt. 554; 15 Atl.. Rep. 198. So the owner cannot recover for the killing of a cow when he had the opportunity to drive her from the track, but willfully refused to do so and watched the trainmen try to stop the train. — Moody v. Minneapolis & Sb. L. Ry. Co., 77 la. 29; 41 Nev. Rep. 477. A railroad fireman was killed by coKislon of an engine with a steer straying on the track. The railway company owned the right of way in fee simple. The owner of the steer owned the land on both sides. The STATDTORT DUTY TO FENCE — EVIDENCE. 121 ing owners {q), [96] but the company are lia,ble if they have been negligent in omitting the performance of other duties apart from their statutory duty (»•). Cg) Maitell V. S. Wales By. Co., 29 L. etc., B. Co. v. Beatty, 36 Ind. li, are cited J. C. F. 316. [The American cases, do as sustaining the English law.] not, in general, justify snch a doctrine. (r) Martell v. S. Wales By. Co., supra It is only when snch adjoining land of (the plaintiff had paid toll for the use the company is used by the public, that of a tramway adjoining the railway — the company is relieved of the obliga- held, the company ought to take rea- tlon to fence its road. — l Thomp. Neg. sonable care his horses were not in- 522; Indianapolis, etc., B. B. Co. v. jared). Oestel, 20 Ind. 231, and JeffersouTllle, railway was unfenced, and the oiyner of the steer was in the habit of turning his cattle loose on his land. There was no staitutor; duty to fence. It was held that there was no cause of action against the owner of the steer. — Sherman v. Anderson, 27 Kan. 833; 41 Am. Bep. 414. See Honsatonlc, etc., E. Co. v. Enowles, 30 Conn. 313; New York and Erie E. Co. V. Skinner, 19 Pa. St. 298; Drake o. Pittsburgh, etc., E. Co., 51 Pa. St. 240; Northeastern B. Co. v. Sineath, 8 Eich. 185; Sinram o. Pittsburg, etc., E. Co., 28 Ind. 244; Hannibal o. Kenney, 41 Mo. 272. But in the case of Donegan v. Erhardt (1 19 N. Y. 468 ; 23 N. E. Eep. 1 051), it was held, a provision requiring railroads to fence their tracks is for the protection of persons upon the trains. In this case a brakeman recovered for injuries received through a collision of the train he was on with a horse that had made its way to the track through a defect in the fence. Evidence. — The burden of establishing negligence is on the {Plaintiff, unless the fact of injury is made iJrteos/acie evidence of negligence. — Lawrence v. Milwaukee, etc., E. Co., 42 Wis. 322; Grand' Bapids, etc., E. Co. V. Jndson, 34 Mich. 506; Indianapolis, etc., E. Co. v. Candle, 60 fod. 112; P. C. and St. L. E. Co. v. McMillan, 37 Ohio St. 554; Towns- Ipy V. Missouri Pac. By. Co., 89 Mo. 31 ; IS. W. Eep. 15 ; Bobinson v. St. Ijiouis, etc., Ey. Co. ; 21 Mo. App. 141. In some States the fact of injury is prima fade evidence of negligence. In such case the burden of proof is on the railroad company to show that it exercised all reasonable diligence. — White v. Concord E. Co., 30 N. H. 188; Woolfolkc. Macon, etc., E. Co., 56 Ga. 467; Banner v. South Carolina, etc., E. Co., 4 Eich. 329; The Georgia, etc, B. & Banking Co. V. Cox, 64 Ga. 619; Illinois Cent. E. Co. ». Trowbridge, 31 111. App. 190; Wood o. Kansas City E. Co., 43 Mo. App. 294; International & G. N. E. Co. V. Cocke, 64 Tex. 151. In others it is made so by statute. — Little Bock, etc., B. Co. v. HensoD, 39 Ark. 413; Brentner ». Chicago, etc., E. Co., 58 Iowa, 625; Georgia, etc., E. Co. ». Fish, 65 Ga, 714; South & North Ala. E. Co. v. 122 NEGLECT OP DUTIES EEQDIKING OKDINABY CARE. [97] Where the fences, etc., are properly kept by the company, they have fulfilled their statutory duty ; but it WUliams, 65 Ala. 74; Western Maryland B. Co. v. Carter, 69 Md. 306; Louisville, etc., B. Co. v. Brown, 13 Bush 176. But this presumption may be rebutted by proof of due care. — Durham V. Wilmington, etc., B. Co., 32 N. C. 362; Little Bock, etc., B. Co. v. Payne, 33 Ark. 816; Mobile, etc., B. Co., v. Williams, 63 Ala. 696. The plaintiff must prove that the company was bound to fence at the point where the animal killed got upon the track. — Bremmer v. Green Bay, etc., B. Co., 61 Wis. 114; Nance v. St. Louis, etc., B. Co., 79 Mo. 196; Lake Erie, etc., B. Co. v. Eneadle, 94 Ind. 4S4; Evansville, etc., B. Co. V. Mosier, 101 Ind. 597; Goodwin o. Kansas City, etc., B. Co., 43 Mo. App. 359; Eaton v. Oregon By. & Nav. Co., 19 Ore. 371; 24 Pac. Bep. 413; Foster v. St. Louis, etc., B. Co., 90 Mo. 116; 2 S. W. Bep. 138. Where an animal entered upon the railroad at a place where the com- pany was not bound to fence, and after wandering along the road, went upon other property, and afterwards entered upon the railroad track at a point where the company was required by law to fence^ arid was killed, the company was held liable. — Atchison, etc., B. Co., v. Cash, 27 Kan. 187. Where cattle are injured or killed at a point where the company is not bound to fence, the jury, in the absence of proof to the contrary, are justified in presuming that they entered upon the track at that place. — Bennett ». Milwaukee, etc., B. Co., 19 Wis. 146; St. Louis, etc.,B. Co. v. Casner, 72 111. 384; McCoy v, California Pac. E. Co., 40 Cal. 632; Small V. Chicago, etc., B. Co., 60 la. 338. Damages.^- The measure of damages is the reduced value of the ani- mal at the time of the killing. — Dean v. Chicago, etc., B. Co., 43 Wis. 305; Case v. St. Loiiis, etc., 75 Mo. 668; Boberts v. Bichmond, etc., B. Co., 88 N, C. 560. And if injured the difference between its value before and after the njury and the reasonable expense of its care, the temporary loss of its use and interest from the date of the action. — Atlanta, etc., B. Co. v. Hudson, 62 Ga. 679; Jackson v. St. Louis, etc., B. Co., 74 Mo. 526; Toledo, etc., B. Co. v. Johnson, 74 111. 83 ; Meyer v. Atlantic, etc., B. Co., 64 Mo. 542. Where by reason of a railroad company's failure to construct cattle- guards and fences as required by statute It becomes responsible for all damages by trespassing cattle to crops, pastures, occasioned thereby ; also for the diminution in the rental value of the land. — Finch v. Chicago, etc.. By. Co., 46 Minn. 250; 48 N. W. Bep. 915; Missouri Pac. By. Co. v. Bicketts, 46 Kan. 617; 28 Pac. Bep. 50; Nelson v. St. Louis & S. F. By. Co., 49 Kan. 165; 30 Pac. Bep. 178. Exemplary damages are not allowed unless the Injury was willfully inflicted.— Chicago, etc., B. Co. ■». Janett, 69 Miss. 470. NEGLECT OP DUTIES BY OWNERS OF ANIMALS. 123 [98] remains that they should exercise ordinary care with respect to cattle straying upon the line, and if the com- pany know or ought to know that cattle are upon the line (s), and do not take care to have them removed, they are [99] liable in an action of negligence in the same manner as any other person would be who neglected so obvious a duty. Section III. Neglect of Duties by Owners of Animals. Persons having the control of animals, whether owners or not, are in general liable for injuries occasioned by a want of ordinary care in controlling such animals (2). In the case of " savage " animals, such as lions, tigers, etc., a man must keep them from doing harm at all events, and no amount of care will relieve him from liability in respebt of injuries caused by them. Probably one ground of this (a^ Shearman, s. 472; [Marlell v. S. Bojle v. Tamlyn, 6 B. & C. 337; Shear- Wales By. Co., xapra. man, s. 185; Wharton, Ch. VII., ss. 100, (z) Tenant v. Goldwin, 6 Mod. 314; 904 e( »eq. Statutes authorizing double damages for stock killed by a railroad have generally been held constitutional. — I^^tle Bock, etc., B. Co. v. Payne, 33 Ark. 816; Welsh ». C. B. & Q. B. Co., 63 la. 632; Memphis & Little Bock, etc., B. Co. «. Horsfall, 36 Ark. 6S1; Cairo, etc., B. Co. v. Warrington, 92 111. 157; Cummings o. St. Louis, etc., B. Co., 70 Mo. 670; Phillips V. Missouri Fac. By. Co., 86 Mo. 540; Hines v. Missouri Pac. By. Co., Id. 629 ; Texas C. By. Co. v. Childress, 64 Tex. 346. In Wisconsin a statute was held not unconstitutional because it ex- cluded contributory negligence ivs a defense to an action brought for damages caused to a person or animal for want of a fence. — Quacken- bush V. Wisconsin, etc., B. Co. 62 Wis. 411. And in Illinois and Kansas a statute providing for attorney's fees in addition to the damages in such cases was upheld. — Peoria, etc., B. Co. V. Duggai^ 109 111. 537; Missouri Pacific By. Co. v. Abney, 30 Kan. 41. • Not allowed in Louisiana.— Day v. New Orleans, etc., By. Co., 35 La. An. 694. 124 NEGLECT OP DUTIES EEQUIRING OUDINAEY CAEE. is that he must be supposed to know the extreme danger he is incurring in keeping such animals, and to take all the risk, as in the case of dangerous things, such as fire or water, referred to, ante. In May v. Burdett (a), it is said that the gist of the action is the keeping of the animal (a monkey) after knowledge of its mischievous pro- pensities. In an American case, where an elephant by its mere appearance frightened a horse, it was held that the owner was not liable (6). The question of knowledge by the owner of the mis- chievous propensities of a particular animal kept by him does not enter into a work on the law of negligence; for, if knowledge is shown , it is no defense to show that every care was taken. When once knowledge is shown, the owner of the animal is subject to the rule with respect to savage animals, and keeps such an animal at his peril. [rod] Neither is it within the scope of the present work to deal with questions of trespass. It is sufficient to observe here that a man is liable to an action for trespass if he does not prevent his animals from trespassing ; and it is no answer to such an action that he took the best possible care to pre- vent the trespass (c). Where a man has placed his cattle in a field, it is his duty to keep them from trespassing on the land of his neighbors; but while he is driving them upon a highway, he is not responsible (without proof of negligence) for any injury they may do upon the highway, or to unfenced property adjoining the highway ( smaller animals, such as dogs, cats, fowls, etc, seems to be very doubt- (a) Ma? V. Bardett, 9 Q. B. 101. belongs to a class of animals which Is (&) Scribner v. Kelly, 38 Barb. 14 ; dangeions to man, and a person exhlb- [Bnt where a hog by Its appearance Iting one Is liable for personal Injuries frightened a horse, the owner was held Inflicted by It. — Filbnm ». People's Pal- liable, the hog being at large in yiola- ace Car Co., 25 Q. B. DiT. 258.1 tlon of statute. — Jewetti. Gage, 36 Me. MSupra. eiSS.] — {Contra, Klenberg v. Enesell, 125 (d) See per Stephen, J., in Tlllet v. Md. 5S1; 25 N. E. Kep. 596. An elephant Ward, 10 Q. B. D. 17. ANIMALS TRESPASS. 125 ful (e). It should seem that he would be liable for [101] the trespass if there were really any damage done {/), and if not liable iu an action for trespass, at all events (e) See Bead v. Edwards. 17 O. B. N. passing upon anotbei's land, kills an S. 245; 31 L. J. C. F. 31.— [McDonald v. animal is liable for the damages inflicted Jodiey. 8 Pa. Co. Ct. Bep. 142 ; Beis t>* thongh he had no previons Icnowledge Stiatton, 23 111. App. 314.] of the dog's vicloos character.] — [See (/) See "Add. on Torts," pp. 110, 268. Green v. Doyle, 21 111. App. 205. The 301, 5th ed., by !•. W. Cave, Q. C. See as owner of a trespassing ball is respon- to tbe necessity of appreciable damage, sibleforinjariesinflictedbyit.— Malone Smith p. T^ckerah, 35 L. J. C. P. 276; v. Enowlton, IS N. T. S. Bep. 506. Bat L. B. 1 0. P. 564, or more accorately per- the harborer of a dog which Is known to haps, "appreciable Injury to a right," bein the habit of chasing animals pass- see 1 Sm. Ii. C, Sthed., p. 308; and see Ing by on the road near by Is not liable remarks of Tannton, J., In Marzettl v. where he exercises ordinary care and Wmiams, 1 B. & Ad. 426 ; [in Chnmot v. the dog frightened a horse to plaintiff's Larson, 43 Wis. 536; 28 Am. Bep. S67, It injnry.— Shaw v. Graft, 37 Fed. Bep. 317.] was held that one whose dog, while tres- (s) Marsel o. Bowman, 62 la. 57; Monlton v. Inhabitants of Scar- borongtt, 71 Me. 267; Meredith v. Reed, 26 Ind. 334; Drake v. Monnt, 33 N. J. I<. 441; Schaller v. Connors, 67 Wis. S2I; Manger v. Shipman, 30 Neb. 362; 46 N. W. Rep. 627; Barnnm «. Terpenning, 75 Mich. 557; 42 N. W. Bep. 967 ; Lemoine v. Cook, 36 Mo. App. 193 ; Worthen v. Lore, 60 Vt. 285; 14 Atl. Bep. 461. The question of control is for the jnry. — Hahnke v. Frederich, 140 N. Y. 224; 36 N. E. Rep. 487; WMttemo^ v. Thomas, 153 Mass. 347; 26 N. E. Bep. 875. Actaal control and not ownership governs the liability. — Hombein v. Blanchard,4 Colo. App. 92 ; 35 Pac. Rep. 187 ; Kessler v. Lockwood, 62 Hun, 619; 16 N. T. S. Rep. 677; Garrison v. Barnes, 42 ni. App. 21; Jacobs- meyer v. Poggemoeller, 47 Mo. App. 660; Sproat v. Directors, etc., 145 Pa. St. 698; 23 Alt. Bep. 380; 29 W. N. C. 461; Jennings v. D. G. Burton Co., 73 Hun, 645; 26 N. Y. S. Rep. 151; Snyder o. Patterson, 161 Pa. St. 98; 28 Atl. Bep. 1006; 34 W. N. C. 288. (a) Vredenburg v. Behan, 33 La. An. 627; Glidden v. Moore, 14 Neb. 84: Popplewell r. Pierce, 10 Cush. 609; Partlow ». Haggarty,35 Ind. 178; Woolt V. Chalker, 31 Conn. 121; Oakes v. Spaulding, 40 Vt. 361; Meibus V. Dodge, 38 Wis. 300 ; Marble v. Boss, 124 Mass. 44 ; McCaskill v. Elliott, 6 Strobh. 196; Congress, etc.. Spring Co. v. Edgar, 99 U. S. 645. The tendency of some aathorities is toward aidopting a different rule. In Cooley on Torts (2d ed.), p. 411, It is said:' "The keeping of wild animals for many purposes, has come to be recognized as proper and useful; they are exhibited through the country with the public license and approval; governments and municipal corporations expend large sums in obtaining and providing for them ; and the idea of legal wrong in keeping them and exhibiting them is never indulged. It seems, there- 126 NEGIECT OF DUTIES EEQUIEING ORDINARY CARE. he would be liable in an action for negligence if, knowing that the animals were in the habit of committing damage, he took no care to prevent them, and they had really done substantial injury. So far as the trespass is occasioned by negligently omitting to repair or keep up fences, the subject will be found discussed in the section on the duties of owners of property (§'). Sometimes where there has been in fact a trespass, yet the thing complained of is the neglect of control over the animal, and this of course is within the scope of the present work and the present section. Where the injury done is the natural consequence of the negligent control, the owner is liable, without any proof of scienter; for persons must be taken to know the nature and habits of animals which they undertake to control (A), and ought to exercise such ordinary care as is proper for their control. But where the damage is such as it is not the (jg) Ante, Oh. II. (A) E. g. crows or sheep eating crops. See Shearman, sb. 188, 130. fore, safe to say that the liability of the owner or keeper for any injury done by them to the person or property of others, must rest on the doc- trine of negligence. A very high degree of care is demanded of those who have them in charge; but, if, notwithstanding such care, they are enabled to commit mischief, the case should be referred to the category of accidental injuries, for which a civil action will not lie " referring to Earl V. Van Alstine, 8 Barb. 630; Canefox v. Crenshaw, 24 Mo. 199, and Scribner v. Kelley, .S8 Barb. 14 in the notes. One keeping animals mansuetae naturcB after notice of their mischievous propensities is prima fade liable for injuries committed by them. — Per- kins V. Mossman, 44 N. J. L. 679; Eeightlinger v. Egan, 75 III. 141; Will- iams v. Moray, 74 Ind. 25; 39 Am. Rep. 76; Marsh v. Jones, 21 Vt. 378; Dearth v. Baker, 22 Wis. 73; Burden v. Barnett, 7 Ala. 169; McCaskill v. Elliot, 5 Strobh. 196; Campbell o. Brown, 19 Pa. St. 359; Barclay v. Leon- iard, 4 Denio, 500; Murray v. Young, 12 Bush, 337; Enowles v. Mulder, 74 Mich. 202; 41 N. W. Eep. 896; Finney v. Curtis, 78 Cal. 498; 21 Pac- Kep. 120; Bockery v. Hutson, 125 Ind. 102; 25 N. E. Rep. 144; Eiumouth V. McDougal, 19 N. Y. S. Sep. 771; Sylvester v. Maag, 155 Fa. St. 225; 26 Atl. Eep. 392. An agister is responsible for injuries inflicted in his pasture by a horse known by him to be vicious. — Schroeder ». Faires, 49 Mo. App. 470. PROOF OF SCIENTER. 127 [102] nature of the aDimal ordinarily to commit, it lies upon the party damaged to show that the owner knew the Whether the injury is done by the playfulness of the animal or in a spirit of ferocity does not aSect the liability of the owner if he had notice of its mischievous disposition. — Dickson v. McCoy, 39 N. Y. 400; State V. McDermott, 49 N. J. L. 163; 6 A.tl. Eep. 653; Hathaway v. Tinkham, 148 Mass. 85; 19 N. E. Bep. 18. Notice of knowledge must be averred and proved. — Congress, etc.. Spring Co. v. Edgar, 99 U. S. 645; Wormley v. Gregg, 65 III. 251; Moss V. Partridge, 9 111. App. 490; Twigg v. Kyland, Md. Ct. Err. & App., 24 Am. Law Eeg. 191; Staetter v. McAr|ihur, 33 Mo. App. 218; Cameron v. Bryan (Iowa), 56 N. W. Rep. 434; Laherty v. HOgan, 13 Dily, 533; Mur- phy V. Preston, 5 Mackey^ 514; Mulherrin v. Henry, 11 Pa. Co. Ct. R. 49; Bobinson v. Marino, 3 Wash, St. 434; 28 Pac. Rep. 752; Simpson v. Griggs, 58 Hnn, 393; 13 N. Y. S. Rep. 162. Knowledge of an agent of the vicious habits of a dog under his control is knowledge of the principal. — Corliss ». Smith, 53 Vt. 632. This rule applies to corporations. — Keenan v. Gotta Percha Mfg. Co., 46 Hun, 544; McGarry v. New York & H. R. Co., 18 N. Y. S. Eep. 195. The gist of the action being the keeping of such animals with notice or knowledge of their vicious habits, an averment of negligence is unneces- sary.— Congress, etc.. Spring Co. v. Edgar, 99 U. S. 645; Campbell u. Brown, 19 Pa. St. 359; Popplewell v. Pierce, 10 Cush. 509; Burden v. Bamett, 7 Ala. 169; Brooks v. Taylor, 65 Mich. 208; 31 N. W. Rep. 837; Green v. Doyle, 21 111. App. 205. But where negligence is averred it will not be necessary to aver knowl- edge of vicious habits. — Dickson v. McCoy, 39 N. Y. 400; Goodman v. Gray, 15 Pa. St. 188; Fallon v. O'Brien, 12 R. I. 518; Mosier v. Beale, 43 Fed. Rep. 358. Notice of mischievous habits on a single occasion has been held suffl- to charge the owner (Arnold v. Norton, 25 Conn. 92 ; Eittredge v. Elliott, 16 N. H. 77 ; Jacoby v. Ockerhausen, 59 Hun. 619 ; 13 N. Y. S. Eep. 499, on two occasions. — (Mann v. Weiand, 81 Pa. St. 243)^ The biting of plaintiff by a dog without the slightest warning was held to constitute sufficient evidence of the viciousness of the dog. — Webber v. Hoag, 8 N. Y. S. Rep. 76. Where it appeared that a dog was ferocious to the knowledge of his owner who sometimes confined him and muzzled him, it was held unnec- essary to prove that he had ever bitten anybody. — Godeau v. Blood, 52 Vt. 251; 36 Am. Rep. 751; S. P. Kessler v. Lockwood, 62 Hun, 619; 16 N. Y. S. Rep. 677. See Robinson v. Marino, 3 Wash. St. 434; 28 Pac. Eep. 752 ; Kolb v. Klages, 27 HI. App. 531 ; Brice v. Bauer, 108 N. Y. 428 ; 15 N. E. Eep. 695. In another case it was held that knowledge of the savage disposition of a dog was not sufficient to make the owner liable to one bitten by him; 128 NEGLECT OP DUTIES REQUIRING ORDINARY CARE. par- [103] ticular anjmal was capable of the act com- plained of, and when he has shown that he need not prove negligence (e). (i) Cook V. Waring, 2 H. & O. 332 B. N. S. 260; 34 J-. J. O. P. 81 (dog accns- (BCabby sheep); Bead«. Bdwaids, 17 O. tomed to hnnl game). that to charge the owner he must have had knowledge of the dog's pro- pensity to bite mankind. (Keightlinger v. Egan, 75 HI. 141. SeeLinck V. Scheffel, 32 111. App. 17.) In an action against the owner of a dog for injury done by it to a quantity of meat, it was held not improper to re- ceive testimony of the dog's .vicious character. — Cheney v. BusseU, 44 Mich. 620. Contributory Negligence. — The owner of a vicious animal is not liable if the negligence of the party injured contributed to the injury. — Will- iams V. Moray, 74 Ind. 26; 36 Am. Kep. 76 ; Keightlinger v, Egan, 65 111. 235; Putnam o. Wigg, 69 Han, 627; 14 N. T. S. Rep. 90. Where defendant's bull escaped through a pasture into the plaintiff's pasture through a gap in the fence, which it was the plaintiff's duty to repair, and injured plaintiff's horse, and there was no proof of a scienter, the defendant was held not liable (Scott v. Grove, 56 Vt. 499 ; 48 Am. Rep. 814); and where the fence was reasonably secnre, but the bull's escape was owing to the fault of the owner of the property Injured or his agent, it was held an action for damages could not be maintained. — Weide «. Thiel, 9 111. App. 223. Where A. permitted his mare to feed in the same field with B.'s bull, and the bull gored the mare, it was held that A. had no right of action against B. therefor. — Carpenter v. Latta, 29 Kan. 691. In another case (Barlow v. McDonald, 39 Hun, 407), the action was for injury sustained by the plaintiff, a woman, by being butted and knocked down by the defendant's ram. The defendant, who llved-on a farm adjoining the plaintlfE's, usually kept the ram tied up. The plain- tiff's son borrow'ed him to run with the ewes on her f arm j and it had been running at large on her farm three or four weeks. The trial court refused to charge that if she or her agents were guilty of negligence'in the care of the ram, which contributed to the injury, she could not recover, and this was held error. That the person injured is a trespasser wUl not excuse the owner of dangerous animals from liability for injuries inflicted where negligence in keeping them is shown. — Loomis v. Terry, 17 Wend. 496; Marble v. RosS, 124 Mass. 44; Woolf v. Chalker, 31 Conn. 121. Where one kept a vicious bull tethered on his own land, knowing his vlciousness, and within reach of a road which the public had been accus- tomed to use, although not a highway, he was held liable for an injury by the bull to a passer on the road.— Glidden v. Moore, 14 Neb. 84; 46 Am. Rep. 98. ANIMALS CONTRIBUTOKY NEGLIGENCE. 129 It is said that a person driving cattle through a street is bound to take the utmost care to avoid doing any injury to the public (A;). It seems that surrounding circumstances being fraught with more danger, more care must be used. There is a danger both from the nature of the animals and from the crowded street (I). [104] But these cases are not those of " savage " ani- (£) Ftcken «. Jones, 28 Oal. 618. See (0 As to this see poet, Cli. III., t>. 3. Tlllett ». Ward, 10 Q. B. D. 17; [Hewes V. McNamara, 106 Mass. 281.] And where the Injury occurred through the negligence of a co-servant in omitting to chain up a dog, whereby defendant's watchman was bitten, the defendant was held liable, as this was one of the risks of the employ- ment which he did not assume. — MuUers. HcKasson, 73 N. Y. 195; 29 Am. Rep. 123. See Farley v. Picard, 78 Hun, 660; 29 N. Y. S.Rep. 802. But the employer is not liable where a servant at the suggestion of a co- servant attempts to feed a chained and vicious dog. — Werner v. Winter- bottom, 1 N. Y. S. Eep. 417. If the act of a dog is the sole and proximate cause of the shying of a hoise, and such shying Is not th^ result of any vicious habit of the horse, the fact that it contributed to plaintiff's injury does not prevent him from maintaining an action against the owner of the dog, under Mass. Gen. St. ch. 88. — Dennison v. Lincoln, 131 Mass. 236. Contributory negligence on the part of a child has been held no defense. — Meibus v. Dodge, '38 Wis. 300; Munn v. Reed, 4 Allen, 431. See Burham v. Strother, 66 Mich. 519; 33 N. W. Eep. 410. Where plaintiS put his band on the neck of his own dog to pull him along and prevent a fight with defendant's dog near by, that fact will not prevent his recovery for an injury inflicted by defendant's dog which immediately sprang upon the dog plaintiS was holding. — Matteson v. Strong, 159^ Mass. 497; 34 N. B. Rep. 1077. Where one having knowledge of the vicious propensities of a dog, offered it a piece of candy while it was lying in front of the owner's store and was bitten, this was held not such contributory negligence as would bar a recovery (Lynch v. McNally, 73 N, Y. 347) ; but where the plaintifi irritates a dog and is bitten In consequence he cannot recover. — Keight- inger v. Egan, 65 111. 235; Quimby ». Woodbury, 63 N. H. 870; Linck v. Scheflel, 32 HI. App. 17. Plaintiff's inadvertently stepping on a dog of savage disposition (Fake V. Addicksy 45 Minn. 37; 47 N, W.'Rep, 450), or walking rapidly along the highway and talking loudly, just before being bitten by a dog, will not prevent his recovering damages for the Injnry. — Dockerty v. Hutson, 125 Ind. 102; 25 N. E. Rep. 144. * 9 130 NEGLECT OF DUTIES EEQUIKINO ORDINARY CARE. mals but only oi ' quasi-sax&ge animals, which we shall speak of presently. The mere keeping of infectious animals, even where the animals belonging to another person are thereby endan- gered, is not, it seems, a negligent act of itself (m), but it may be so (n). The question how far the owner of an animal not known to be vicious, and which cannot naturally be presumed to be so, but which escapes from control and injures another, is liable for such injury, is not by any means free from diffi- culty. The difficulties, however, mainly arise upon the question of contributory negligence, and this subject will be more conveniently dealt with in a separate chapter ; see Chapter V. If the animal is properly under his control, and he is exercising ordinary care, but nevertheless, the animal does an injury, the owner is not liable (o) ; but if he negligently omits to exercise ordinary care to control it, he is liable for such injury as is, the proximate result of such negligence (p). (m) Sbearman, B. 198. See Contagions ther, I>. B. 10 Ex. 261 (horses Tanning Diseases (Animals) Act, 41 & 42 Vict. c. away, frightened by bark of dog) ; [Ben- 71. netts. Ford,47Ind. 261.] (n) 'See Cook v. Waring, gupra. (p) See Ch. I. ; and see post, Ch. V., (o) Shearman, 191. Holmes ) Shearman, s. 400. [Baltimore v, ter, 68 N. T. 283; Durant v. Palmer, 29 Pendleton, 15 Md. 12; BacoQ V. Boston K. J. L. S44; Ottumwa v. Parks, 43 3 Cnsh. 174 ; Chicago t>. Bobbins, 4 Wall. la. 119; Murphy v. Brooks, 109 Mass., 659; Hawks v. Northampton, 116 Mass. 302.] — Oity of Lewiston v. Booth 420; Indianapolis v. Doherty, 71 Ind. B. (Idaho), 34 Pac. Bep. 809; Baker v. In the absence of proof of want of care Borough of North East, ISl Fa.'St. 234; on the part of the corporation. It is not 21 Atl. Bep. 1079; 30 W. N. C. 673; Fine liable for the negligence of the employes Bluff W. & L. Co. v. Derrlsseaux, 66 Aik. of the lot owner. Masterson v. Mt. Ver- 132 ; 19 S. W. Bep. 428 ; Wallace v. Evans, non, 58 N.T. 891; Washburn Mfg. Oo. v. 48Ean.609; 23 Pac. Bep. 596; Baltimore Worcester, 116 Mass. 460.] & L. T. Oo. v. Oassell, 66 Md. 419; Mux- LIABILITIES OF C0EP0BATION8. 141 And it can scarcely be doubted that where a person un- lawfully places upon a highway an instrument or thing which is dangerous to passers-by, he is bound to take all necessary precaution, and is answerable for the conse- quences of not doing so in an action of tort ; and even if he do so lawfully he is bound to take care, and is liable to an action of negligence if he omits to do so (s). The owner of land adjoining a highway is bound as we hare seen «not to interfere with the safety of persons using the highway (<); and in repairing or erecting premises where it is lawful to encroach during the progress of the work, such encroachment must be made with ordinary care, and any danger guarded against (m). [114] Corporations or persons undertaking to manage highways are not insurers against later defects, they are I phy V. Snbnrban E. T. Co. (N. T.), (0 See s. 2, ante. Real Property. IBN.T.S.Eep. 837; BvansTlUe & T. H. («) Sheatman, 8.366; [Wood ». Meats B. Co. V. Crist, 116 Ind. 416 ; 19 N. E. Rep. 12 Ind. 515 ; Handhanseu v. Bond, 36 Wis. 310; Collins v. Leafy, 124 Pa. St. 203; 16 29;.yandeipool v. Hnsson, 28 Barb. 196; At. Eep. 765; 23 W. N. C. 264.] Jackson v. Schmidt, 14 La. An. 806, and (s) Clark v. Cbambers, 48 L. J. 427; guard excavations, Mnrphy v. Brooks, 2 Q. B. D. 327 (barrier with spikes); 109Mass. 202;Clarkv. Fry,80hioSt.35S; Harris v. Mobbs, 3 Ex. Div. 268 (van and Beck v. Carter, 68 N. T. 283 ; 2S Am. Rep. engine by side of road frightened horse 175].— [Landrn -n. Lnnd, 38 Minn. 638; in trap). — [Roe v. Crlmmins, 28 N. T. S. 38 N. W. Eep. 669; Day v. City of Mt. Eep. 750; 8 Mi'sc. Rep. 496; Barry v. Ter- Pleasant, 70 la. 193; 30 N. W. Eep. 353; klldsen, 72 Gal. 254; 13 Pac. Eep. 657; Weller v. McCormick, 62 N. J. L. 470; 19 Peterson v. Chicago & W. M. Ry. Co., 64 Atl. Eep. 1101.] Mich. 621; 31 N. W. Eep. 548.] A municipal corporation is liable for injuries caused by dangerous ex- cavations left unguarded in its streets. — Wilson v. City of Wheeling, 19 W. Va. 323; 42 Am. Eep. 780; City of Ironton v. Kelley, 38 Ohio St. 50; Circleville v. Neuding, 41 Ohio St. 465; Dressell v. Kingston, 32 Hun, 533; Brusso v. BufEalo, 90 N. Y. 679; Bassell v. Columbia, 74 Mo. 480 ; 41 Am. Bep. 325 ; City of South Omaha v. Cunningham, 31 Neb. 816 ; 47 N. W. Eep. 930; Glasier v. Town of Hebron, 62 Hun, 137; 16 N. Y. S. Rep. 603; 131 N. Y. 447; 30 N. E. Rep. 597; McGrath v. Village of Bloomer, 73 Wis. 29; 40 N. W. Rep. 585; Fay o. Town of Lindley, 58 Hun, 601; 11 N. Y. 8. Rep. 355; Hudson v. Inhabitants of Marlborough, 164 Mass. 218 ; 28 N. E. Eep. 147. See ante, p. 82. That the work is placed in the hands of a contractor will not relieve the corporation from liability (Welsh v. St. Louis, 73 Mo. 1 ; Brusso v. 142 NEGLECT OF DUTIES EEQUIEING ORDINARY CARE. only [115] bound to take care (x) and as far as their statutory duties are concerned, something more than ordi- nary care (y). (k) Shearman, s. 398; [Vlcksburg v. 15;_B1 N. W- Rep. 696; Birmingham v. Hennesy, 64 Miss. 391; Blake ■•>. St. Rochester City &B.B. Co., 137 K. Y. 13; Lonis, 10 Mo. 569 ; Perkins v. Lafayette, 32 N. E. Rep. 995.] 68 Me. 152; Rapho v. Moore, 68 Pa. St. (y) Bee post. Oh. III., s. 6, Corpora- 404 ; Wheeler v. Westport, 30 Wis. 392] . — tions performing Statutory Duties . [Wakeham v. Tp. of St. Clair, 91 Mich. Buffalo, 90 N. Y. 679; see Jacksonville v. Drew, 19 Fla. 106; 45 Am. Eep. 5; Dressell v. Kingston, 32 Hun, 533), though it has no control over the work and the contractor stipulates that he shall be liable for accidents. — Wilson V. City of Wheeling, 19 W. Va. 323. Obstructions in the highway frightening horses. — Bennetts. Lovell, 12 E. I. 166 ; 34 Am. Eep. 628 (tubing and machinery left in highway) ; Milarky ». Foster, 6 Ore. 378; 25 Am. Eep. 531; Clinton v. Howard, 42 Conn, 294 (pile of stones) ; Lake v. Millikin, 62 Me. 240; Jones v. Housa- tonic E. Co., 107 Mass. 264. A barrel of whitewash left over Sunday on the side of the road was held not such an obstruction as would render defendant liable for in- juries received by plaintiff's horse frightened by its appearance. — Fiollet V. Simmers, 106 Fa. St. 95 ; 24 Am. Law Eeg. 235, note. A municipal corporation may become liable for suffering objects to remain in the road calculated to frighten horses. — Bennett v. Fifield, 13 E. I. 139; 43 Am. Eep. 17; Cressy u. Hestonville, etc., Co., 75 Pa. St. 83; Stanley v. City of Davenport, 64 la. 463 ; 37 Am. Eep. 216 (steam motor) ; contra, Sparr v. St. Louis, 4 Mo. App. 572 (in the latter case the use was lawful); Young v. New Haven, 39 Conn. 435; 12 Am. Eep. 400, note (steam roller) ; Chicago v. Hoy, 75 lU. 530 (dead animal) ; Fritsch v. Allegheney, 91 Pa. St. 226; Ayer v. Cit^of Norwich, 39 Conn. 376; Bloor V. Town of Dellafleld, 68 Wis. 273; 34 N. W. Eep. 115 (mortar-box) ; Tp. of North Manheim v. Arnold (Penna.), 13 Atl. Eep. 444 (lumber) ; Cairncross v. Village of Pewaukee, 78 Wis. 66 ; 47 N. W. Eep. 13 (steanj- boat) ; Wilson v. Town of Spafford, 10 N. Y. S. Eep. 649 (pile of stones). See Beach Pub. Corp., 2§ 1513, 1517n. But a town is not liable to a traveler whose horse takes fright at a large natural boulder imbedded in the earth in the line of the highway. Barrett v. Town of Walworth, 19 N. Y. S. Eep. 557. "The prevailing doctrine is that if the town, city or other public corporation charged by law with the care of highways permits objects to remain thereon which from their nature have a tendency to frighten horses of ordinary gentleness and docility and the horse of a traveler himself in the exercise of due care takes fright at such an object and runs, and notwithstanding due efforts to restrain him on the part of his DUTY TO PROVIDE BAILINGS. 143 The omission of suitable railings or walls to a bridge is a negligent act, and cannot be excused by showing that such barriers might increase the liability of the bridge to destruction by flopds (z). Railway bridges over highways should be kept in proper repair, and the companies, whose duty it is, at common law, to repair them, are bound to use due care in the inspection of the bridges and in the repair of them, so as not to cause injury to persons passing along the high- way (a). Draw-bridges should be properly constructed, and be fur" nished with proper machinery for raising the same upon the passing of vessels, and should be protected by proper bar- riers, or lights, or other warnings for the advantage of pas- (z) Shearman, s. 2S3 ; [citing Bronaon (a) Kearney v.li.'B.&a. 0. By., I4. B. V. Sontbbnry, 37 Conn. 19ft. As to the 6 Q. B. 769; 40 L. J, Q. B. 285 (stone fell obligation to maintain suitable railings, from bridgeon passer-by). SeeGrotes. Newlin Tp. v. Davis, 77 Pa. St. 317; Tit- Chester, etc., «t. Co., 2 Exeh. 251 ; South comb V. Fitchbnrg B. Co., 12 Allen, 251; and I^orth Alabama By. Co. v. McLen- Woodmanr. Xothingham,49N.H.387.— den, 63 Ala. 266; Titcomb v. Fitchbnrg, [Board Com'rs Parke Gonnty v. Sappen- 12 Allen, 254; White v. Qnincy, 97 Mass. field, 6 Ind. App. 577;33N. £. Bep. 1012; 430; [Gates ». Pennsylvania B. Oo.,IS0 FInnegan v. Tp. of Foster, 163 Pa.' St. Pa. St. 50; 24 Atl. Eep. 638; 30 W. N. O. 135; 29 Atl. Bep. 780; Board Com'rs v. 329; Bemberti;'. Sonth Carolina By. Co., Creveston, 133 Ind. 39. There is no 31 S. C. 309 ; 9 S. E. Bep. 968 ; Pittsburgh obligation to provide railings suitable & L. E. B. Go. v- Jones, 111 Pa. St. 204*; for travelers to lean or sit on. Occult 50 Am. Eep. 260; City of Newark v. «. Eittery Bridge Co., 53 Me. 248; Stick- Delaware, L. & W. B. Go. (N. J.), 7 ney ». Salem, 3 Allen, 374; [Langlois Atl. Bep. 133 ; Gray ». Borough of Dan- v.Cityof'Oohoes, 68 Hun, 226; 11 H. Y. bury, 54 Gonn. 574; 10 Atl. Bep. 198; S. Eep. 908.] Tiemey v. Troy, 41 Hun, 120.] driver damages ensue, the corporation must pay such damages." — 20 Cent. Law Jonr. 108; citing among ottier cases Dimock v. Suffield, 30 Conn. 129; Morse v. Richmond, 41 Vt. 435; Forshay v, Glenhaven, 25 Wis. 288; Kelly v. Fon du Lac, 31 Wis. 179; Card v. Ellsworth, 6S Me. 547; Wlnship v. Enfleld, 42 N. H. 197. This rule does not prevail in Massachusetts and Michigan. — Cook v. Montague, 115 Mass. 571 ; Agnew v. Corunna, 55 Mich, 428; 20 C. L. J. 106. The statutory liability of a city for personal injuries is confined to de- fects in the streets arising from their being out of repair, and does not cover objects on the street but forming no part thereof, as, e. g., a pile of lumber encroaching thereon.— McArtbur v. City of Saginaw, 58 Mich- 357; 21 Bep, 18. 144 NEGLECT OP DUTIES KEQUIRING ORDINAET CAEE. sengers across the bridge, and for negligence in this respect the proprietors will be liable (6); probably for something [116] less than ordinary negligence. So long as they keep the bridge open and take tolls, so long are they liable for negligence, even although they give notice to travelers of the insecurity of the bridge (c). It is said that the destruction of a bridge by an extraor- dinary flood raises no presumption of negligence, but where it is subject to floods it must be so constructed as to resist them (d). (6) Shearman, s. 250; [Welsenberg Eep. 679; Greenwoods. Town of West- «. Wlnneoonne, 56 Wis. 667 ; Pennsyl- porf, 60 Fed. Eep. 660.] vania B. Co. v. Central B. Go., 59 Fed. (c) Shearman, a. 260. Eep. 190; Central B. Co. v. Pennsylvania (,d) Shearman, s. 250, note 3; [Citing B. Co., 69 Fed. Bep. 192; 8 0. 0. A. 86; Llvezey v. Philadelphia, 61 Fa. St. 106, Van Etten v. Town of Westport, 60 Fed. and Gray v. Harris, 107 Mass. 192]. Bridges. — Municipal corporations are liable for injuries caused by de- fects in bridges within their limits as part of the streets. — Chicago v. McGinn, 61 III. 266; Humphreys v. County, 56 Pa. St. 204; Burritt v. New Haven, 42 Conn. 514; City of Denver v. Dunsmore, 7 Colo. 328; Eudora v. Miller, 30 Kan. 494; Stebbins v. Eeene, 66 Mich. 552; Dalton V. Upper Tyrone Tp., 137 Pa. St. 18; 20 Atl. Rep. 637; 26 W. N. C. 489; City of Goshen o. Myers, 119 Ind. 196; 21 N. E. Eep. 657; Langlois v. City of Cohoes, 58 Hun, 226; 11 N. Y. S. Eep. 908; Walker v. City of Kansas, 90 Mo. 647; 12 S. W. Eep. 894; City of Sherman ». Nairey, 77 Tex. 291; 13 S. W. Eep. 1028; County Com'rs v. Wise* 71 Md.43; IS Atl. Eep. 31; Spaulding v. Town of Sherman, 75 Wis. 77; 43 X, W. Eep. 558 ; Tierney v. Troy, 41 Hun, 120. See Elliott on Boads and Streets, pp. 44, 45. This action may be brought In the Federal courts. — City of Boston V. Crowley, 38 Fed. Eep. 202. Under statutes in some of the States, actual or constructive notice of the defects is necessary to maintain an action. — Moore v. Kenockee Tp., 75 Mich. 382; 42 N. W. Eep. 944; McKeller v. Tp. of Monitor, 78 Mich. 485; 44 N. W. Eep. 412; City of Atlanta v. Buchanan, 76 Ga. 585. A city bound to maintain a bridge is not liable for an injury sustained by a vessel because of the draw being of less width than that prescribed by statute or because of the carelessness of the superintendent of the bridge by reason of which the vessel was detained, in the absence of express statutory liability. — French v. Boston, 129 Mass. 692; 37 Am. Bep. 393. A city has been held liable for an injuiy sustained in consequence of the BKIDGBS - — CONSTEUCTION AND EEPAIE. 145 [117] Corporations or private persons who take tolls under Acts of Parliament for the use of canals are bound, defectiveness of a bridge, altliougli at tlie time it was in process of repair by an independent contractor. (City of Jacksonville v. Drew, 19 Fla. 106; 45 Am. Rep. 5); so of county, Park v. Board Com'rs (3 Ind. App. 537; 30 N. E. Rep. 147) ; and a town for damages done to land by the building of a bridge in such a manner as to set back water upon it. — Mootry v. Town of Banbury, 45 Conn. 560 ; 39 Am. Rep. 703. But see Shieb v, Tp. of Collier Pennsylvania. 11 Atl. Rep. 366. ~ The fact that a bridge over a City street was of sufficient height to allow ordinary carriages to pass under it, was held not of itself enough to discharge the municipality from liability to one injured while attempt- ing to pass under it. — Sewellv. City of Cohoes, 75 N. Y. 46 ; 31 Am. Bep. 418. But where plaintiff was struck by the wheel of a wagon drawn by runaway horses upon a bridge owned by a municipality, the fact that the bridge, which had been built of stone fifty years before, is too narrow for present use, does not render the municipality liable for the^ injury.— Comity of Lehigh v. Hoffort, 116 Pa. 119; 9 Atl. Rtep. 177. A city is not bound to erect barriers or station watchmen for the pro- tection of young children playing about a swing bridge. — Gavin v. Chi- cago, 97 111. 66. A city, it has been held, is not bound to guard the approaches of a bridge owned by 'the State on lands of the State crossing a State canal within the city boundaries constructed for canal purposes, but commonly used by the public as part of the public highway. — Car- penter V. City of Cohoes, 81 N. Y. 21; 37 Am. Rep. 468. In the absence of statute counties are not bound to repair bridges. — Wood v. Tipton Co., 7 Baxt. 112; 32 Am. Rep, 561; Hill v. Livingston, 12 N. Y. 52; En- sign V. County of Livingston, 25 Hun, N. Y. 20; HufEman v. San Joaquin, 21 Cal. 426; White" c. Commissioners of Chowan, 90 N. C. 437; 47 Am. Rep. 534; Bailey v. Lawrence County (S. D.), 59 N. W. Rep. 219; Board Com'rs El Paso County o. Bish, 18 Colo. 474; 33 Pac. Rep. 184; Pundman V. St. Charles County, 110 Mo. 594; 19 S. W. Rep. 733; Heigel v. Wichita County, 84 Tex. 392; 19 S. W. Rep. 562. Nor is one contracting, with- out bond, with the county, to keep a bridge in repair liable for an injury caused by a defect therein. — Williams v. Stillwell, 88 Ala. 332; 6 So. Rep. 914. This duty is imposed in some States by statutes upon counties (State V. Board of Commissioners, etc., 80 Ind. 478; 41 Am. Rep. 821; Wilson », Jefferson, 18 la. 181; Board Com'rs Sullivan County v. Sisson, 2 Ind. App. 311; 28 N. E. Bep. 374; Board, etc., of Morris County v. Hough (65 N. J. L. 628), 28 Atl. Rep. 86, in others upon township^.— State o. Bos- cawen, 32 N. H. 331 ; Medina v. Perkins, 48 Mich. 67. Where a bridge is situated partly within the limits of a town and partly within the limits of a village, and managed and controlled by both, a liability for negligence may arise on the part of both. — Weisenberg v. 10 146 NEGLECT OF DUTIES EEQUIRING ORDINARY CARE. as we think, to exercise something more than ordinary care in the management of such property (e). But they are (e) Lancastei Canal Co. i). Farnaby, fendants bad notice of obstractlon), 11 Ad. & El. 223 (boat snnk in canal ; de- See Ooiporatlon, post, Ch. III., s. 6. Wlnneconne, 56 Wis. 667. See Lyman v. Hampshire County, 140 Mass, 311. Where the corporate limits of a village bonnd upon a navigable stream, its liability for injuries caused by defects in an adjacent bridge extend to the center of the stream. — Village of Marseilles v. Kiner, 34 111. App. 365; Village of Marseilles v. Howland, 124 111. 547; 16 N. B. Bep. 883, affirming 23 111. App. 101. But where a county purchased of a private owner a bridge one end of which abutted upon a city and the approach to the city bridge on the city side was constructed over land not included in any city highway, it was held that unless the city adopted such bridge as one of its highways the county only and not the city would be under .obligation to keep it in re- pairs and liable for injuries caused by its defective condition. — Bishop V. City of Centralia, 49 Wis. 669. Ordinary care is required of counties in the construction and repair of bridges. — Board of Commissioners of Howard Co. v. Legg, 93 Ind. 523; 11 'N. E. Eep. 612. Thus a county is responsible for injuries, where incompetent repairs were knowingly employed. — Wabash County v, Pearson (Indiana), 22 N. £. Bep. 134. See Eastman v. County of Clack- amas, 32 Fed. Bep. 24; Cooper v. Mills County, 69 la. 350;' County of Knox V. Montgomery, 109 Ind. 69; 9 N. E. Bep. 590. For obvious defects in their original construction which they have permitted to exist they would be liable. — Bigony v. County of Schuylkill, 103 Pa. St. 382; Board 'Com'rs Allen County v. Creviston, 133 Ind. 39; 32 N. B. Eep. 735. A town is not bound to keep its bridges absolutely safe as against extraordinary and unreasonable loads. — Wilson v. To'wn of Granby, 47 Conn. 59; 86 Am. Bep. 51; O'Neil v. Tp. of Deerfleld, 86 Mich. 610; 49 N., W. Eep. 596; Yordy v. Marshall County, 86 la. 340;' 53 N. W. Bep. 298; Clulow v. McClelland, 151 Pa. St. 683; 25 Atl.Eep. 147; 31 W. N. C. 145, following McCormick v. Tp. of Washington, 112 Pa. St. 185; 4 Atl. Bep. 164; Board Com'rs Vermillion County v. Chipps, 131 Ind. 56; 29 N. E. Bep. 1066; City of Wabash ». Carver (Ind), 26 N. E. Bep. 42; Clapp V. Town of Ellington, 22 Abb. N. C. 387; 3 N. Y. si-Bep. 516. Knowledge of the unsafe condition of a bridge is not such contributory negligence as will bar an action for damage by one Injured in passing over it. — Board of Commissioners of' Madison County v. Brown, 89 Ind. *8; County Com. Prince George's County o. Burgess, 61 Md. 29; Monon- gahela Bridge Co. v. Bevard (Pa.), 11 Atl. Bep. 575; Gulf, C. & S. F. Ey. Co. V. Gasscamp, 67 Tex. 545; 8 S. W. Bep. 227. This is a ques- BRIDGES — CONSTEUCTION AND EEPAIR. 147 not insurers, [118] and are not liable for injuries arising from circumstances of which they had no knowledge (f). So, also, a caiial company must see that its canal, docks, locks, wharves and bridges are properly constructed and managed (g). As to injuries to adjoining lands by reason of overflow or bursting of banks, the proprietors are, at the least, liable for negligence (h). The owners of a canal placed planks in it so as to (/) Exchange Fire Ins. Co. v. Dela- 27 L. J. Ex. 23. If Indeed they are not ware Canal Co., 10 Bosw. 180 ; [Penn- bound to keep it at their peril, see oMte, sylvani^ Canal Co. v. Bnrd, 90 Pa. St. p. 43. [Morris Canal Co. v. Eyerson, 27 281; s. 0. 35 Am. Bep. 659.] N. J. L. 136, 476; Proprietors ol Qalncy (jr) Attorney-General v. Bradtorcf Canal ». Newcomb, 7 Met. 276.]— [Dela- NaTigation Co., 35 L. J. Ch. 619 (this ^ae ware & H. Canal Co. v. Goldstein, 125 Pa. a case of nnisance) ; Gantret v. Egerton, St. 216 ; 17 At. Rep. 442 ; 23 W. N. C. 496. Ii. E. 2 C. P. 371; Manley v. St. Helen's In New Tork a statute makes the State Canal Co., 2 H. & X. 840 ; 27 1/. J. Ex. 164 liable tor damages by its canals.— Wood- (Bwlng bridges).— [Brearley v. Canal man v. People, 127 N. Y. 397; 28 N. E. Co., 20 N. J. Law, 236. followed in Perry Eep. 20; Bidelman v. State, 110 N. T. V. Pennsylvania E..Co., 56 N. J. L. 178; 232; IS N. E. Eep. 115; Bowen v. State, 26 At. Eep. 829.] 108 N. T. 166; 15 N. E. Rep. 56.] W Whitehonse v. Birmingham Canal, tion for the jury.-^ Taylor v. Town of Nonstable, 61 Hun, 622; 15 N. Y. S. Eep. 795; 131 N..Y. 597; SON. B.Eep, 63; Wand ». Polk County, 88 la. 617; 55 N. W. Eep. 628; Fisher v. Village of Cambridge, 133 N. Y. 527; 30N.B. Eep. 663. Walking on the side of a bridge having no railing or barrier is not negligence per se, as where one side was so obstructed by snow and ice as to turn pedestrians in the wagon track, and plaintiff walking in the wagon track met a loaded team, and in endeavoring to avoid it |ell off the exposed side,— Morrell v. Peck, 88 N. Y. 398. See Vance v. City of Franklin, i Ind. App. 515; 30 N. E. Eep. 149; St'. Louis Bridge Co. v. Miller, 136 111. 466 ; 28 N. E. Eep. 1091 ; Harwood ». Oakham, 162 Mass. 421; 25 N. E. Eep. 625; Dale v. Webster County, 76 la. 370; 41 N. W. Eep. 1. But if a bridge is so defective as to be practically impassable it is an act of negligence to walk over it. — County Com. Prince George's Co. v. Burgess, 61 Md. 29. See Morrison «. Shelby County, 116 Ind. 481; 19 N. E. Eep. 316; Travis b. Town of CarroUton, 7 N. Y. S. Eep. 231. Eecklessly driving over a bridge and turning off so abruptly as to suffer injury by catching the wheel of a carriage in an obstruction in the highway has been held contributory negligence. — Aberuethy v. Van Buren, 52 Mich. 383. 148 NEGLECT OF DUTIES KEQUIEING OKDINAKY CARE, heighten the bank in order to prevent flood water from a river overflowing their premises, and the water being penned back flooded the plaintiff's premises ; it was held that the owners were not liable. The water was not brought there by them, and there was no duty not to impede the flow, as in the case of a natural water-course (i). A canal towing path is a public highway only for the purpose of a towing path and not for the general public {j) ; and a canal company is not bound to fence or repair it as against the general public, and an action of negligence will not lie for their neglect to fence or repair (A). [119] Section V. Neglect of Duties by Oorporations {not performing Statutory . Duties ) . The duties of corporations are in general prescribed to them by the charter or statute of incorporation, and the performance of those duties which are imperative upon them by reason of such charter or statute are such as require more than ordinary care, and will be found fully discussed in Ch. III., s. 6, post. Those duties also which devolve upon them by reason of their having invited per- sons upon their premises, or taken tolls from them for the use of their property, require something more than ordi- nary care in their performance, and will be found in the same portion of this treatise. (i) Nleld V. L, 4 N. Ey. Co., L. R. 10 St. 73. It was held otherwise where Ex.4. [Where a canal company suffered there was no negligence on the part of one of Its dams to become filled with the company In snfierlng debris to accu- debrls and it was necessary to clear it malate In its dam. Fehr v. SohuyUlU ont, or raise its height, which the com- Nav. Co., 69 Fa. St. 181.] pauy was empowered by its charter to 0') ^- "■ Severn Ey. Co., 2 B, & Aid. do, and they raised its height to the 646. injnry of an adjoining proprietor, it was (S) Binks v. S. T. Ey. Oo,, 3 B. & S. held that an action would lie therefor. 244 ; 32 L. J. Q. B. 26. Schuylkill Nav. Oo. v. McDonough,33 Pa. NEGLECT OF DUTIES BY CORPORATION. 149 It may be here shortly stated that corporations some- titaes undertake duties which they are not bound to per- form by reason of any statute or character, but which are either merely indicated for the exercise of their discretion, or are undertaken by them in a purely voluntary manner. With respect to these duties they are not bound to under- take them (Z), and if they do so they are only bound to exercise ordinary care (m). Like otlrar persons, corporations are liable for the negli- gent use of their property, even where no statutory duty is broken (»). It seems that a corporation is not answerable for the want of adequate administrative ordinances, nor for the manner in which its ordinances are carried out (o). [120] Where there is no specific duty imposed by law upon the corporation it is not sufficient that it has not done something which would, if done, have prevented injury, but it must be shown either that it has directly by negligence oaused the injury or permitted it with notice (p), or per- mitted another to cause it (g). In fact, as has been before said, a duty must be shown and a breach of the duty (r). The act which is being done, and of which negligence is alleged against the corporation, must be one which iS' (0 Wilson V. Freston (Mayor of), Westport, 53 Fed. 824; Williams v. X.. B.5 Q. B. 218.— piaton v. Falibnrg Grand Rapids, 59 Mich. 51; City ol W. Co., 37 Neb. 546 ; 56 N. W. Rep. 201.] Honston v. Bryan, 2 Tex. Civ. App. 553 ; (i») Where turnpike tmstees altered 22 8, W. Rep. 231 ; Town of Frasbnrg v. an open dltchlnto a closed one and made Hitcblns (Maryland), 16 Atl. Rep. 380.] insofficlent gratings, so that the rain (n) See " Wharton on Negligence,', washed over the road and Injnred a mine, s. 251. It was held that they were liable In an (o) Shearman, s. 163. action of negligence for snch Injury : (j>) Shearman, ss. 147, 148. Whitehonse v. Fellowes, 30 L. J. G. P. (g) Shearman, s. U7. 305; 10 C. B. N. S. 766.— [Greenwood o. (r) Ante, p. S. An action by a private indiridnal does not lie for injuries sastained by reason of the omission on the part of a municipal corporation to exer- cise discretionary powers. — Dillon on Municipal Corporations, § 949; Beach Pnb. Corp. § 942. As for an omission to maintain a suitable flre department, whereby 160 NEGLECT OF DDTIKS KEQUIRING OEDINAEY CARE. [121] within the powers or duties of the corporation, and must not be ultra vires (s). If it is ultra vires it is a wrong of a («) Poulton ». L. & S. W. By. Co., L. charter), the corporation is not liable, E. 2 Q. B. 534; 36 L. J. Q. B. 294; see whether its ^fflcers directed the per- "Brice on XJttra VliriSB" p. 246. ["To formance of the act, or it was done establish the liability of a mnnicipal cor- without any 'eipress directions. Smith poration for damages resulting from the v. City of Rochester, 76 N. T. 506, ap- oUeged negligence or want of skill of proved In Cummins v. City of Seymour, its agent or servant in the course of 79 Ind. 491, 496; 41 Am. Eep. 618; see its employment, it is essential to show also Hunt v. City of BoonviUe, 65 Mo. that the act complained of was within 620; 27 Am; Eep. 299; Tramtnell v. the scope of the corporate powers; if Townof Eussellvllle, 34Ark. 105; 36 Am. outside of the powers of the corpora- Eep. 1."] ' tion, as conferred by statute (or its injury results.— Wilcox u. City of Chicago, 107 111. 226; 47 Am. Eep. 434 j Wheeler ». Cincinnati, 19 Ohio St. 20; Welsh v. Village of Rutland, 56 Vt. 228 ; 48 Am. Bep. 762; Robinson v. City of Evansville, 87 Ind. 334; 44 Am. Rep. 770. For a failure to light the streets. — Gaskins v. Atlanta, 73 Ga. 746. See Davenport u. Hannibal, 108 Mo. 471 ; 18 S. W. Rep. 1122. For a failure tu furnish a su£Scient supply of w^tier for the extinguish- ment of fires. — Tainter v. Worcester, 123 Mass. 311; Foster v. Lookout Water Co., 3 Lea, 42; Springfield F. & M. Ins. Co. v. Keeseville, 26 N. Y. S. Bep. 1094; 6 Misc. Bep. 233. For injuries caused by the negligence of officers of the fire depart- ment in performing their duties.— Fisher ii. Boston, 10 Mass. 87; Hayes' ■0. Oshkosh, 33 Wis. 314;.Law80n -o. Seattle, 6 Wash. St. 184; 33Fac. Rep. 347. For the destruction of property by mobs. — Western College ». Cleve- land, 12 Ohio St. 375; 2 Dill. Mun. Corp., Bd ed., § 959; Beach Pub. Corp. § 746; Howe does not apply to torts of this nature. It wonld indeed be an anomalous result in legal science if a corporation shonld be permitted to set up that inasmuch as a branch of the business 152 NEGLECT OF DUTIES EEQUIBING ORDINARY CARE. [123] great care, the rights of the parties are not equal, and no question of negligence arises. prosecuted byit was wrongful, therefore all the special wrongs done to individuals in the course of it were remediless. But in such situations corporate bodies, like individuals, cannot take advantage of their own wrong by way of defense. If corporations are not to be held responsible for injuries to persons done in the transaction of a series of wrongful acts, such an immunity would have a wide scope. All wrongs done by such bodies are, in a sense, ultra vires, and if the want of a franchise to do the tortious act be a defense, then corporations have a dispensation from liability for these acts peculiar to themselves. There does not appear to have been much discussion of this subject, but a case decided by the Supreme Court of Tennessee is directly on the point. The pre- cedent referred to is reported in 63 Tenn. 681, and is entitled Hutchison V. Western and Atlantic B. Co, It was an action against a corporation for damages occasioned by the negligence of its employes. It appeared that the railroad company was without authority running a line of steamers, and the plaintiff had been hurt by the mismanagement of one of them. The defense of ultra vires was interposed in that case, as in the present, but it was rejected on the ground that such doctrine had no application to torts of that character. This exception cannot prevail." See Beach Pub. Corp. § 592. And.though the act is within the corporate powers if it is not within the scope of the officers' or agents' employment, the corporation will not be liable. The corporation is accordingly not responsible for the negligence of a city engineer or surveyor in performing" work for private parties CAlcom V. Philadelphia, 44 Pa. St. 348) ; for the torts of its police (Mc- Blroy o. Albany, 65 Ga. 387; 38 Am. Rep. 791; Harman v. Lynchburg, 33 Gratt. 37) ; or other officers though done colore officii unless authorized or.ratified by the corporation. — Hunt v. City of Boonville, 65 Mo. 620 27 Am. Kep. 299; Mayor v. Musgrave, 48 Md. 272; 30 Am. Rep. 458 Thayer «. Boston, 19 Pick. 511; Wallaces. City Menasha, 48 Wis. 79 33 Am. Rep. 804; Lee v. Sandy Hill, 40 N. Y. 442; City of Kansas City v. Leman, 67 Eed. Eep. 905; 6 C. C. H. 627. " But if the duty to be performed is for the private advantage of the city, in which the State has no interest, then the city will be liable for the wrongful or negligent acts of its agents, although it may not have entire control of the officers (Bailey v. Mayer, 3 Hill, 531), as in laying gas pipes (Scott V. Mayor, 1 H. & N. 59), or in laying water pipes (Stoddard V. Winchester, 157 Mass. 567; 32 N. E. Kep. 948), or keeping a wharf in good condition of which it has possession." — See article on Powers of Municipal Corporations, 22 C. L. J. 318; Pittsburgh©. Grier, 22 Pa. St. 64; Fennimore v. New Orleans, 20 La. Ann. 124; AlUson v. Richmond, 51 Mo. App. 133. Co»i. New York, etc., Ry, Co., 29 N. Y. S. Rep. 897. But such rules may be unnecessary and not required. — Texas & N. O. By. Co. V. Echols, 87 Tex. 339; 27 S. W. Eep. 60; Eudik v. Lehigh Val. B. Co., 78 Hun, 492; 29 N. Y. S. Eep. 533; Doing c.New York, etc., E. Co., 73 Hun, 270; 26 N. Y. S. Eep. 406; Burke v. Syracuse, etc., B. Co., 69 Hun, 21; 23 N. Y. S. Eep. 468. Failure to obey the rules is negligence on the part of the servant, as uncoupling cars while In motion in violation of a rule of a railroad company. — Lockwood ». Chicago, etc., B. Co., 66 Wis. 60; Ford v. Chicago, etc., Ey. Co. (la.), 69 N. W. Eep. 6. Omission to use a stick in conpliog cars as required by the rules of 166 NEGLECT OF DUTIES EEQUIEING OEDINAEY CAEE. A servant may, however, by his conduct waive his com- mon law rights as against his master by entering upon the the company (Hulett v. St. Louis, etc., E. Co., 67 Mo. 239; Richmond & D. E. Co. V. Hlssong, 97 Ala. 187; 13 So. Eep. 209)^but it is not negli- gence where the employe's attention has not been called to the rule. — Fay V, Minneapolis, etc., E. Co., 30 Minn. 231. See Central B. of Georgia v. Byals, 54 Ga. 420; 11 S. E. Eep. 499; Louisville, N. H. & C. Ey. Co. V. Berkey, 136 Ind. 181; 35 N. E. Rep. 3; James v. Northern Pac. E. Co., 46 Minn. 168; 48 N. W. Eep. 783, It was held in Nelson v. Chicago, etc.,E. Co. (60 Wis. 320), that a loco- motive engineer is not bound at all hazards to comprehend fully all the results of the changes in the running time of trains made by a new time table and is not necessarily guilty of negligence in running bis train contrary to the rules of such time table on the first trip after it takes efCect. (0 Ladd«. New Bedford, etc.E. Co., 119 Mass. 412; 20 Am. Eep. 331; Murphy v. Boston, etc., E. Co,, 88 N. Y. 146; 42 Am. Eep, 240; Pingree V. Leyland, 135 Mass. 398; G. H. & S. A. Ey. Co. v. Lempe, 69 Tex. 19; Pittsburg & L. E. E. Co. v. Henley, 48 Ohio St. 608 ; 29 N. B. Eep. 575 ; Week V. Fremont Mill Co., 3 Wash St. 629; 29 Pac. Eep. 215; Smith v. The Seraphs, 51 Fed. Rep. 91; Rutherford v. Chicago, etc., Ry. Co. (Minn.), 59 N. W. Eep. 302; Atchison, T. &S. F. E. Co. v. Alsdurf, 47 111. App. 200; Goodridge v. Washington Mills Co., 160 Mass. 234; 35 N. E. Eep. 484; French v. Hulls, 72 Hun, 442; 25 N. Y. S. Eep. 188; Texas & P.Ey. Co. v. Minnick, 57 Fed. Eep. 362; 6 C. C. X. 387; City of Lebanon «. McCoy, (Ind. App.) 36 N. E. Eep. 547; Gleeson v. Excelsior Mfg. Co., 94 Mo. 201 ; 7 S. W. Ei^p. 188; Eelnig v. Broadway E. Co., 1 N. Y. S. Rep. 907; Central E. E. V. Sims, 80 Ga. 749; 7 S. B. Eep, 176; Olson v. St. Paul, etc, Ey. Co., 38 Minn. 117; 35 N. W. Eep. 866; Texas & N. O. Ey. Co. v. Dillard, 70 Tex. 62; 8 S. W. Eep. 113; Smith v. Sellers, 40 La. Ann. 527; 4 So. Eep. 333; Foster «. Pusey (Del.), 14 Atl. Eep. 545; Union Pac. Ey. Co. v. Estes, 37 Kan. 715; 16 Pac. Eep. 131; Penderson «. Eushtord, 41 Minn. .289; 42 N- W. Eep. 1063; Southwest Va, Imp. Co. v. Andrew, 36 Va. 270; 9 S. E. Eep. 1015; Minty v. Union Pac. Ey. Co., 2 Idaho, 437; 21 Pac. Eep. 660; Kennedy v. Pennsylvania E. Co. (Pa.), 17 Atl, Rep. 7; 24 W. N. C. 371; Illinois Cent. R. Co. o. Neer, 26 111. App. 356; Griffln v. Ohio & M. Ry. Co., 124 Ind. 326; 24 N. E. Rep. 888; Thorn v. New York City Ice Co., 46 Hun, 497; Rickert v. Stephens, 133 Pa. St. 538; 19 Atl. Eep, 410; Boyle V. New York & N. E. E. Co., 151 Mass. 102; 23 N. E, Rep. 827; Rutledge V. Missouri Pac. Ry. Co., 110 Mo. 312; 19 S. W. Rep. 38; Berrlgan », New York, etc., R. Co., 131 N. Y. 582; 30 N. E. ^ep. 57; Knight v. Cooper, 36 W. Va. 232; 14 S. E. Rep. 999; Melville v. Missouri River, etc., R. Co., 48 Fed. Rep. 820; H. S. Hopkins Bridge Co, v. Burnett, 85 Tex. 16; 19 S. W. Rep. 886; Coal Creek Min. Co. v. Davis, 80 Tenn. 711; 18 S. W, Rep. 387; St. Louis, A. & T. Ry. Co. v. Lemon, 83 Tex. 143; 18 S. MASTER AND SERVANT. 167 service upon other terms, either express or implied. With express contracts this work has nothing to do (n), but with (») Ante, y.lO; [post, p. 173]. W. Eep. 331 ; Murphy v. American Rubber Co., 159 Mass. 266 ; 34 N. E. Rep. 268; Poland v. Chicago, etc., E. Co., 44 La. Ann. 1003; 11 So. Rep. 707; St. Louis Southwestern Ey. Co. v. Jagerman, 57 Ark. 98; 26 S. W. Rep. 591; Anglin v. Texas & P. Ry. Co., 60 Fed. Rep. 553; 9 C. C. A. 130; Schulz V. Johnson, 7 Wash. 403; 35 Pac. Rep. 130; Gulf C. & S. F. Ry. Co. V. Kizziah, 86 Tex. 81; 23 S. W. Rep. 578. The servant assumes no risks which it is the duty of the master to prevent; as those of defective appliances. — Chicago & E. R. Co. v. Branyan, 10 Ind. App. 570; 37 N. E. Rep. 190; Heltonville Mfg. Co. o. Fields (Ind.), 36N. B. Rep. 529; Beard v. Chesapeake ». C. Ry. Co., 90 Va. 351 ; 18 S. E. Rep. 559; Duggan v. Third Ave. R. Co., 29 N. Y. S. Rep. 13; 9 Miss. Rep. 158; Conlon v. Oregon, etc. Ry. Co., 23 Ore. 499; 32 Pac. Eep. 397; Lofrano v. New York & M. V. W. Co., 55 Hun, 452; 8 N. Y. S. Rep. 717; Piette v. Bavarian Brewing Co., 91 Mich. 605; 52 N. W. Rep. 152; Nicholds v. Crystal Plate Glass Co. (Mo.), 27 S. W. Rep. 616. See ante, p. 155, d. (m). [See ante, note m, p. 165.] As stated by the authorities referred to in the preceding note the servant assumes the ordinary risks incident to his employment. This rule applies where' the em- ployment is of a dangerous character, the only difference from ordi- nary cases being that both master and servant are bound to exercise a higher degree of care for the latter's protection. — Abend v. Terre Haute, etc., R. Co., Ill 111. 202; Powers v. N. Y., Erie, etc., E. Co., 98 N. Y. 274; Naylorc. The Chicago, etc., Ey. Co., 53 Wis. 661; Sweeney V. Central Pacific E. Co., 57,Cal. 15; Aldridge v. Midland Blast Furnace Co., 20 S. C. 559; Watson v. Kansas & T. C Co., 52 Mo. App. 366; Prentice o. Westville, 66 Hun, 634; 21 N. Y. S. Eep. 820; Price v. Rich- mond & D. E. Co., 38 S. C. 199; 17 S. E. Rep. 732; Daly c. Alexander Smith & Sons Carpet Co., 69 Hun, 77; 23 N. Y. S. Rep. 269; Man- son V. Eddy, 3 Tex. Civ. App. 148; 22 S. W. Eep. 66; Sullivan V. Fitchburg B. Co., 161 Mass. 125; 36 N. E. Eep. 751; Beckman v. Consolidated Coal Co. (la.), 57 N. W. Eep. 889; Goldthwait v. Haver- bill & G.St. Ey. Co., 160 Mass. 554; 36 N. E. Rep. 486; Crowley v. Appleton, 148 Mass. 98; 18 N. E. Rep. 676; Houston v. Culver, 88 Ga. 34; 13 S. E. Eep. 953; Townsend v. Langles, 41 Fed. Eep. 919; Neilon v. Marinette & M. P. Co., 75 Wis. 579; 44 N. W. Eep. 772; Dartmouth Spin- ning Co. V. Achard, 84 Ga. 14; 10 S. E. Rep. 449; The Mahjarah, 40 Fed. Eep. 784; Ehmcke v. Porter, 45 Minn. 338; 47 N. W. Rep. 1066; Davis v. Baltimore & 6. R. Co., 152 Pa. St. 314; 25 Atl, Eep. 498 ; 31 W. N. C. 300; Carroll ». Bast Tenn., V. & G. Ey. Co., 82 Ga. 452; 10 S. B. Eep. 163; Stephenson v. Duncan, 73 Wis. 404; 41 N. W. Rep. 337; Drake v. Union 168 NEGLECT OF DUTIES REQUIEING ORDINARY CAKE. respect to services given under special circumstances it should be stated tliat if a, servant enters upon or continues Pac. By. Co., 2 Idaho, 453; 21 Pac. Rep. 560; Woods v. St. Paul & D. R. Co., 39 Minn. 435; 40 N. W. Rep, 510; Smith v. Winona & St. P. R. Co., 42 Minn. 87; 43 N. W. Rep. 968; Adams v. Iron Cliffs Co., 78 Mich. 271; 44 N. W. Rep. 270; Carlson v. Oregon, etc., Ry. Co., 21 Ore. 450; 28 Pac. Rep. 497; Daigle o. Lawrence Mfg. Co., 169 Mass. 378; 34 N. E. Rep. 468; Ball v. Detroit L. Co., 73 Mich. 168; 41 N. W. Rep. 216. As in case of railroad employes killed or injured by low bridges while standing upon the top of cars and in the performance of their daties. — Wells V. The B. C. R. & N. R. Co. 56 la. 620; Devitt v. Pacific R. R. Co., 50 Mo. 302; Baylor v. Delaware, etc., B. Co., 40 N. J. Law, 23; 29 Am. Bep. 208; Baltimore, etc., R. Co. v. Strickler, 61 Md. 47; 34 Am. Rep. 291; Clark's Admr. v. Richmond, etc., R. Co., 78 Va. 709; 49 Am. Rep. 394; Rains o. St. Louis, etc., E. Co., 71 Mo. 164; 36 Am. Bep. 469; Will- iamson V. Newport News, etc., Co., 34 W. Va. 657; 12 S. E. Bep. 824; Louisville, N. A. & C. R. Co. v. Wright, 115 Ind. 378; 16 N. E. Bep. 145; 17 N. E. Bep. 584 ; Chesapeake & O. R. Co. o. Haf ner, 90 Va. 621 ; 19 S. E. Rep. 1C6; Cleveland, C, C. & St. L. Ry. Co. v. Walter, 147 111. 60: 35 N. E. Bep. 629, affirming 46 III. App. 642 ; Carbine v. Bennington R. Co., 61 Vt. 348; 17 Atl. Rep. 491; Ryan v. Long Island R. Co., 61 Hun, 607; 4 N. Y. S. Rep. 381; Pennsylvania Co. v. Sears, 136 Ind. 460; 34 N. E. Bep. 16; Wallace v. Central Vermont R. Co., 138 N. Y. 302; 33 N. E. Bep. 1069; Louisville & N. B. Co. v. Hall, 91 Ala. 112; 8 So. Rep. 371. And while there voluntarily, out ol the line of their employment.— r Pittsburg, etc., B. Co. ■». Sentmeyer, 92 Pa. St. 276; 37 Am. Bep. 684. It is held otherwise where the employe is ignorant of the dangerous character of the structure. — Baltimore, etc., R. Co. v. Rowan, 104 Ind. 88; 3 N. E. Rep. 627. In that case' it was held that a railroad company is liable for the death of a brakeman by a low bridge while in the performance of his duty on top of the cars, he being ignorant of its dangerous character. The court said: "It must be confessed that the position of appellants' couQsel, in regard to the non-liability of the railroad company to its employe, in such a case as the one at bar, seems to be sustained by the decisions of the court of last resort in several of our sister States. We cite some of these cases as follows: Baylor o. Dela- ware, etc., R. Co., 40 K. J. L. 28; 29 Am. Bep. 208; Baltimore, etc., R. Co. V. Strieker, 51 Md. 47; 34 Am. Rep. 291; Devitt o. Pacific B., 50 Mo. 302; Pittsburg, etc., R. Co. v. Sentmeyer, 92 Pa. St. 576; 37 Am. Bep. 684; Clark's Admr. v. Richmond, etc., R. Co., 78 Va. 709; 49 Am. Rep. 394; Gibson o. Erie Ry. Co., 63 N. Y. 449; 20 Am. Bep. 662. In this connection we may properly note that in Beach on Contributory Negligence, § 134, in speaking of these decisions, it is vigorously said : ' If the root or overstructure of the bridge is so low that it will strike a brakeman standing erect upon the top of his train, it is an MASTER AND SEEVANT. 169 in a service after notice or knowledge of danger, he must be taken to have accepted the service and the danger too (o). (0) Fiazer v. Pennsylvania By. Co., 38 as the serrant was awaie of the danger Pa. St. lU (servant aware of habltaal tbemasterwasnotresponslble.aUhoagh negligence of fellow-servant) ; Siipp v. there was a safer way of doing the work Eastern Coanties By. Co., 9 Exch. 223 which was discarded by the master's (had done work without assistance for own orders, sed gucsret) ; Saxton v. long time) ; Griffiths v. ^idlow, 3 H. &N. Hawksworth, 26 L. T. N. S. 851 (engine 618 (knew defects in machinery) ; Senior known to be left unattended revolved V. Ward, 1 £. & E. 385 (knew rope to coal too fast and broke a dram) ; Woodley v. mine insufficient) ; Assop v. Yates, 2 H. Metropolitan By. Co., L. B. 2 Ex. D. 384; & N. 768 (machine left near hoarding in 46 L J. Ex. 521 (plaintiff continued to dangerons position, work voluntarily work near a tunnel nnprotected, held, continued) ; Dynen v. Leach, 26 Ii. J. no remedy ; jury found negligence in not Exch. 221 (fall of a weight by slipping providing a look-out man) ; \cmte, p. 162 , off a clip. In this case it was held that post, p. i73l. essentially murderous coniarivaDce, and it is not creditable to our juris- prudence that such buildings are not declared a nuisance. There is nothing in the reports worse than the cases that sustain railroad corpora- tions in buUding and maintaining these man-traps.' The case in hand is one of first impression in this State, and we are not concluded by any previous decision of this court. We are impressed with the opinion that appellant's counsel misapprehended the force and eSect of the facts stated in appellant's complaint, and admitted to be true, as the question of their sufficiency is now presented. Stripped of the ' jugglery ' of ad- jectives or qualifying words, the material facts admitted to be true were (1) the construction and maintenance by appellant of the highway bridge over its railroad track of an insufficient height to enable its brakemen to perform their labors and discharge their duties without great danger and hazard to the life and personal safety of such brakemen; (2) appel- lant's knowledge of the insufficient height of such bridge, and that it was dangerous and unsafe for its brakemen to perform their labor and dis- charge their duties while passing under such bridge; (3) appellee's Ignorance of the facts that the bridge was too low, and that it was dangerous for him to attempt the performance of the duty, imposed on him as a brakeman, by appellant, while passing under such bridge ; and (A) appellee while in appellant's employ as brakeman, in his proper place, and at his post of duty, was struck by the bridge under which his train was running, and received the Injuries described in his complaint. It will not do, we think, to say that these facts were not sufficient to constitute a cause of action against appellant, for the recovery of such damages as appellee sustained. It seems to us that a railroad company is and ought to be required to construct and maintain its road- way and appendages, and its overhead structures, in such manner and condition that its employe or servant can do and perform all the labors and duties required of him with reasonable safety. In Houston, 170 NEGLECT OF DUTIES REQUIKING ORDINARY CARE. [134] Where a servant has informed his master of defects, it is a question of evidence how far he and his etc. J Ey. Co. v. Oram (49 Tex. 341), it was held by the Supreme Court of Texas as follows : ' It is the duty of a railroad company to use ordinary care to provide such cars, read-beds, tanks, etc., as are reason- ably safe. A failure to do this is negligence, chargeable to the company ; and it is responsible in damages to an employe for an injury resulting, without his negligence, from a tank or other appendage of the road, so negligently constructed as to subject him to unnecessary and extraordi- nary danger, which he could not reasonably anticipate or know, and of which he was in fact not informed.' Doubtless the general rule is as it was declared to be by the Chief Justice Shaw, in the leading case of Farwell v. Boston, etc., B. Corp. (4 Mete. 49), as follows: 'He who engages in the employment of another, for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to' the performance of such serv- ices.' But there are well defined exceptions to this general rule, one of which arises from the obligation or duty of th^ master not to expose the servants while conducting his business to perils or hazards which might have been provided against by the exercise of due care and proper dili- gence upon the part of the master." " In Chicago, etc., E. Co. v. Swett (45 111. 197), it was held by the Su- preme Court of Illinois that a railroad company is bound to provide suitable and safe materials and structures in the construction of its roads and appurtenances, and if from the defective construction of its road and appurtenances, an injury happens to one of its servants, the company is liable for the injuries sustained. The same learned court has since re- affirmed the same doctrine, substantially, in Illinois Cent. B. Co. v. Welch (62 111. 183), and in Chicago, etc., B. Co. v. Bussell (91 111. 298). In Hough V. Eailway Co. (100 U. S. 213) in speaking of the exceptions to the general rule, that a master is not liable to his servant for injuries sustained by the negligence of his fellow-servants, the Supreme Court of the United States say: 'One, and perhaps the most important of those exceptions arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master's business, to perils of hazards against' which he may be guarded by proper diligence upon the part of the master. To that end the master is bound to observe all the care which prudence and the exi- gencies of the situation require in providing the servant with macliinery or other instrumentalities adequately safe for the use of tlie latter.' The doctrine declared is in harmony with and supported by the recent decis- ions of the court in the well considered case of Indiana Car Co. v, Parker (100 Ind. 181). We are of opinion that the facts stated in appellee's complaint are sufficient to constitute a cause of action, and that appel- lant's demurrer thereto was correctly overruled." MASTER AND SERVANT. 171 master have [135] agreed to a fresh service upon differ- ent terms, with an increase of liability on the master's part So whete a railroad engineer was struck and killed by a signal post ■when leaning out of his engine to watch for a signal, it was held that the company was not liable for his death, he being aware of the danger. — Lovejoy v. Boston, etc., E. Corporation, 125 Mass. 79; 28 Am. Rep. 206. An engineer who is familiar with the road cannot recover for an in- jnry sustained by his head striking a bridge while he was leaning out of the cab window and watching his train, although he was running a new engine whieh was several inches wider than the one he had been hand- ling.— Bellows i>. Pennsylvania, etc., E. Co., 167 Pa. St. 61; 27 Atl. Rep. 685; 83 W, N. C. 164. See Thain v. Old Colony E. Co. (Mass.), 37 N. E. Eep. 309. And where a conductor of a train neglected to give the usual signal to stop when passing a station, and the engineer leaned out to look for the signal, and his head struck against a water-crane, and he was killed, it was held that the company was not liable, the negligence of the conduc- tor not being the proximate cause of the accident. — Gould v. Railroad, Co., S. C. la., 20 Rep. 301. And where a brakeman was struck by a snow bank made by a snow plough when the train was in motion, it was held that no action would lie for resulting injuries. — Dowell v. Burlington, etc., Ey. Co., 62 la. 629. See Bengston v. Chicago, etc, Ry. Co., 47 Minn. 486; 50 N. W. Eep. 531. But where a brakeman descending a ladder of a moving freight car to throw a switch was struck by a telegraph pole standing eighteen inches from the car and killed, the pole having been in that position for three years, and there was no evidence that the brakeman or defendant knew of it, it was held that an action against the company could be maintained tor the killing. — Chicago, etc., R. Co. v. Russell, 91 111. 298 ; 33 Am. Rep. 54. See Kearns a. R. R., S. C. la., 20 Rep. 333; compare Gould v. E. R. Co., S. 0. la., 2C Rep. 301; Murphy ». Wabash R. Co., 115 Mo. Ill; 21 S. W. Rep. 862; Boss v. Northern Fac. R. Co., 5 Dak. 306; 40 N. W. Eep. 590; Gregg v. Chicago &W. M. Ry. Co., 91 Mich. 624; 52 N. W. Rep. 62; Texas & P. Ry. Co. v. Hphn, 1 Tex. Civ. App. 36; 21 S. W. Eep. 942; EUedge V. National City & 0. Ry. Co., 100 Cal. 282 ; 34 Pac. Eep. 720, 852; Kansas City, Ft. S. & G. R. Co. 'i;. Eier, 41 Ran. 661 ; 21. Pac. Bep. 770; Scanlon v. Boston & A. R. Co., 147 Mass. 484; 18 N. E. Rep. 209. A servant of the defendant had been three or four days engaged as a brakeman, and as one of the station yard crew, he being previously a stranger to the locality. While descending from a moving freight car by a side ladder, he was swept off by a trestle standing 14^ inches from the side of the car, and killed. The case was considered sufficient to go to the jury upon the question (1) of defendant's negligence; (2) as to whether the servant knew this danger, or was chargeable with want of ordinary prudence if he had failed to inform himself of it, so that he 172 NEGLECT OF DUTIES EEQUIRING ORDINARY CAEB. or of danger [136] upon the servant's. If the master has expressly or impliedly promised to repair a defect, should be deemed to have assumed the risk; and (3) as to his contribu- tory negMgence.— Eobel v. Railroad Co., 36 Minn. 84, 27 N. W. Rep. 305. Railroad brakemen or car couplers are held to assume the risks of in- juries in coupling cars. — Hathaway o. Michigan, etc., R. Co., 51 Mich. 253; 47 Am. Rep. 569; Toledo, etc., R. Co. v. Fredericks, 71 111. 294; Northern, etc., R. Co. v. Husson, 101 Pa. St. 1; 47 Am. Rep. 690; Hatter v. Illinois Cent. R. Co., 69 Miss. 642; 13 So. Rep. 827; Jackson- ville, T. & K. W. Ry. Co. v. Galvin, 29 Fla. 636; 11 So. Rep. 231; Southern Pac. Co. o. Seley, 152 U. S. 145; 14 S. Ct. Rep. 630, reversing 23 Pac. Rep; 761; Arnold *. Delaware & H. C. Co., 126 N. T. 15; 26 N. E. Rep. 1064, distinguishing Goodrich v. Railroad Co., 116 N. T. 398; 22 N. E. Rep. 397. When loaded with projecting timbers (The Atchison, etc., R. Co. v. Plunkett, 25 Kan. 188 ; Northern Central R. Co. v. Husson, 101 Pa. St. 1) ; the unfortunate employes being held guilty of contributory negligence in not stopping low enough, or delaying a second or two too long, and in consequence getting their heads crushed. — Day v. Toledo, etc., E. Co., 42 Micb. 623. See Mexican Cent. Ry. Co. v. Shean (Texas), 18 S. W. Rep. 151; Irvine v. Flint & P. M. E. Co., 89 Mich. 416; 50 N. W. Rep. 1008. But where an inexperienced switchman, seventeen days in the service of a company in coupling box cars, stepped into a ditch of which he was not aware, and over which a shadow was cast by the car, and got his head crushed between the projecting timbers, it was held that the com- pany was liable for his death. — Brown v. Atchison, etc., R. Co., 31 Ean. 1 ; 29 Kan. 186. See Ragan v. Toledo, etc., Co., 91 Mich. 379 ; 51 N. W. Rep. 1004. Where an employe in a coal mine left the room where he was at work and went to another according to custom, to visit some other employes, and whHe there the roof fell in by reason of the decay and insufficiency of the supports and killed him, it was held that no action could be main- tained against the employer. — Wright v. Rawson, 52 la. 329; 35 Am. Rep. 275. Here, however, the servant was not in the line of his employ- ment at the time of the injury. In a similar case where the servant was in the line of his employment the contrary was held. — Oberf elder V. Doran, 26 Neb. 118; 41 N. W. Rep. 1094. See McPee v. Vicksburg, etc., E. Co., 42 La. An. 790; 7 So. Eep. 720. In Leary o. Boston, etc., E. Co., (139 Mass. 580; 32 Alb. L. J. 243, 297)) it was held that a servant takes the ordinary risks of a dangerous em- ployment in which he continues, although he was hired for a different and less dangerous business and was put into the more dangerous busi- ness against his protest. The court said: " Bat in the case at bar, the plaintiff knew that the duty of aiding as fireman on the engine was not MASTER AND SERVANT. 173 then, if an accident happened while such promise is running, the servamt can recover (p) ; or, if the servant continues in (,p) Pateison v. Wallace, 1 Maoq. H. L. 748; Clark v. Holmee, 7 H. & N. 937; [post, p. 175]. within hts original contract as a laborer. He determined to perform it as a part of his engagement with the defendant rather than lose his position as a laborer. In so doing he must beheld to have assumed its necessary risks. Such is the doctrine of Woodley v. Metropolitan Bailway, 45 L. J, Ex. 521. The plaintiff did this, it is true, rather than lose the position which he had, and which he desired to retain, but by so doing, engrafted this duty on his original contract of which he made it a part." See l^rentiss v. Kent Fnrn. Mfg. Co., 63 Mich. 478; 30 N. W. Eep. 109. But see Michael v. Roanoke Mach. Works, 90 Va. 492; 19 8. E. Bep. 261. In another case it was held that where a laborer engaged in spiking down rails was furnished with a hammer obviously defective, and he pro- tested against working with it, but was ordered to use it on pain of losing his place, and was injured by reason of its defective condition, the company was held liable. — East Tenn., etc., R. Co. v. Duffield, 12 Lea, 63; 47 Am. Eep. 319. This same court held^.in an ill-considered case, that a railroad laborer furnished by his section master with an iron maul known by the latter to be defective, and injured in consequence of such defect, can maintain an action against the railroad company, although the defect might have been discovered by the laborer on inspection. — Guthrie v. Louisville, etc., R. Co., 11 Lea, 372; 47 Am. Eep. 286. (n) Such contracts have been held invalid. — Eoesner v. Hermann, tJ. S. 29 C. C, 10 Biss. 486. See Kansas, etc., R. Co. v. Peavey, 29 Kan . 169 ; 44 Am. Bep. 630; Louisville &N. R. Co.». Orr, 91 Ala. 548; 8 So. Bep. 360; Johnson v. Eichmond & D. B. Co., 86 Va. 975; 11 S. E. Eep. 829; Hissong V. Richmond & D. R. Co., 91 Ala. 514; 8 So. Eep. 776; Georgia Pac. By. Co. v. Dooley, 86 Ga. 294; 12 S. E. Eep. 923; Pardy v. Borne, etc., E. Co., 125 N. Y., 209; 26 N. E. Bep. 255, affirming 5 N. Y. S. Bep, 217; Eichmond v. D. E. Co. v. Jones, 92 Ala. 218; 9 So. Bep. 276; Eussell V. Eichmond & D. E. Co., 47 Fed. Bep. 204; International & G. N. By. Co. ». Hinzie, 82 Tex. 623 ; 18 S. W. Bep. 681. But in Georgia it is held that the servant may by contract assume all risks of his employment, except such as arise from the master's criminal negligence. — Eulton B. & C. Mills V. Wilson, 89 Ga. 318; 15 S. E. Eep. 322, following other Georgia cases. Forbidden by statute in Massachusetts, (Pub. St. Ch. 74, § 3) ; Iowa, (I Rev. Code, 1880, 342, § 1307) ; Wyoming (Laws 1890-91, c. 28, p. 141) ; Texas (Gen. Laws, 1891, c. 24, f 3, p. 25). (o) Kelley v. Silver Spring Co., 12 B. I. 112; 34 Am. Eep. 615; Hough V. Texas, etc., E. Co., 100 U. S. 213; Clark o. St. Paul, etc., E. Co., 28 174 NEGLECT OF DUTIES EEQ0IEING ORDINAllY CARE. the service in the reasonable expectation that the repairs will be effected, he can recover (q). If the promise is not (g) Holmes v. Worthington, 2 P. & F. 53, ^er 'Willes, J. [pott, p. 175]. Minn. 128; Dorsey v. Phillips, 42 Wis. 583; Hayden «. Hanfg. Co., 29 Conn. 548; Foley v. Chicago, etc., E. Co., 48 Mich. 622; 42 Am. Eep. 481; Lnmley v. Caswell, 47 la. 159; Hanrathy v. Northem, etc., R. Co., 46 Md. 280; Sallivan v. India Bubber Manfg. Co., 113 Mass. 396; Hatha- way V. Michigan Cent. E. Co., 51 Mich. 253; 47 Am. Rep. 569; Bell v. Western & Atlantic R. Co., 70 Ga. 566; Coal Ran Coal Co. v. Jones, 127 111. 370; 20 N. E. Rep. 89, affirming 8 N. E. Eep. 866; Way »- Chicago & N. W. Ry. Co., 76 la. 393; 41 N. W. Eep. 61'; Eaeton v. Houston & T. C. Ry. Co., 39 Fed. Eep. 65; Appel v. Buffalo, etc., R. Co., Ill N. Y. 650; 19 N. E. Rep. 93; Litchfield C. & M. Co. v. Eomine, 39 HI. App. 624; Bengston v. Chicago, etc., Ey. Co., 47 Minn. 486; 50 N. W. Rep. 531; Southern Kansas Ey. Co. v. Moore, 49 Kan. 616; 31 Pac. Eep. 138; Brad- shaw V. Louisville & N. E. Co. (Ky.), 21 S. W. Eep. 346; O'Maley V. South B. G. Co., 168 Mass. 135; 32 N. E. Eep. 1119; Eumsey v. Dela- ware, etc., E. Co.,,15l Pa. St. 74; 26 Atl. Eep. 37; 31 W. N. C. 20; King V. Ford River Lbr. Co., 93 Mich. 172; 63 N. W. Rep. 10; Anderson v. H. C. Akeley Lbr. Co., 47 Minn. 128; 40 N. W. Eep. 664; HUnois Cent. E. Co. V. Morrissey, 45 111. App. 127; Feely v. Pearson Cordage Co., 161 Mass. 426 ; 37 N. E. Eep. 368 ; Norfolk & W. E. Co. v. McDonald, 88 Va. 352 ; 13 S. E. Rep. 706. A servant continuing to work without complaint with a fellow-ser- vant, known by, him to be incompetent, assumes the additional risk. Smith V. Sibley Mfg. Co., 86 Ga. 333; 11 S. E. Rep. 616; Grnbe v. Mis- souri Pac. Ry. Co., 98 Mo. 330; 11 S. W. Eep. 736; Warmington v. Atchison, etc., R. Co., 46 Mo. App. 169; Latremouille v. Bennington & R. Co., 63 Vt. 336; 22 Atl. Rep. 656; New York & T. S. S. Co. v. Anderson, 50 Fed. Eep. 462; 1 U. S. App. 176; 1 C. C. A. 629; Wust v. Brie City Iron Works, 149 Pa. St. 263; 24 Atl. Eep. 291. So where a servant con. tinues In the employment with help which he knows to be insufficient, he cannot recover for injury caused by such insufficiency of help.— Eichmond & D. E. Co. v. Mitchell, 92 Ga. 77; 18 S. E. Eep. 290; Southern Kansas Ey. Co. v. Drake, 63 Kan. 1; 35 Pac. Rep. 825; Eddy ». Rogers (Tex. Civ. App.), 27 l§. W. Eep. 295; Atchison, T. & S. F.B. Co. V. Schroeder, 47 Kan. 316; 27 Pac. Eep. 966. This rule is relaxed in cases of persons too young or too ignorant to appreciate danger.— Landing v. New York, etc., R. Co., 49 N. Y. 521; Hill V. Gast, 55 Ind. 45; Hickey v. Taaffe, 105 N. Y. 26; 12 N. E. Rep. 286; Brazil Block Coal Go. v. Gaffney, 119 Ind. 465; 21 N. E. Rep. 1102; Gulf, C. & S. F. Ey. Co. o. Jones, 76 Tex. 360; 13 S. W. Eep. 374; Hinck- ley V. Horazdowsky, 133 111. 359; 24 N. E. Eep. 421; Wynne v. Conklin, 86 Ga. 40; 12 S. B. Rep. 183; Taylor ». Woot^n, 1 Ind. App. 188; 27 MASTER AND SERVANT. 175 performed in a reasonable time, and the servant continues in the employment, an inference arises of new terms having N. E. Rep. 502; Yeaman v. Noblesville F. & M. Co., (Ind. App.) SON. E. Hep. 10; Texas & P. Ey. Co. v. Brick, 83 Tex. 598; 20 S. W. Eep. 511. The mere fact that the servant is a mlDor cannot exercise a control- ling influence where be is safflciently intelligent to comprehend the dangers of his employment. — EvansTUle & E. E. Co. v Henderson, 134 Ind. 686 ; 33 N. E. Eep. 1021 ; Ogley v. Miles, 139 N. Y. 458 ; 34 N. E . Eep. 1059; Goff W.Norfolk &W. E. Co., 36 Fed Eep. 299; Kelley o. Barber Asphalt Coj (Ky.J, 20 S. W. Eep. 271; Smith o.Irwin, 51 N. J. L. 607; 18 Atl. Eep. 85 ; McCarragher v. Sogers, 120 N. Y. 626 ; 24 N. B. Eep. 812; Buckley v. Gutta-Percha & E. Mfg. Co., 113 N. Y. 540; 21 N. E. Eep. 717. In Flyn v. Kansas City, etc., B. Co. (78 Mo. 195), it was held that the liability of a railroad company lor an injury sustained by an engineer through the defects of an air brake of a locomotive, was not discharged on proof that the brake was out of order, that the engineer knew this and that if it had been in order the accident might have been averted. But the rule is, that the servant's knowledge of the danger arising from defect- ive machinery bars his recovery. — Lee v. Southern Pac. R. Co., 101 Cal. 118; 35 Pac. Eep. 572; St. Louis, A. & T. Ey. Co. v. Denny, 5 Tex. Civ. App. 359; 24 S. W. Rep. 317; LouisvUle, E. & St. L. C. E. Co. v. Allen, 47 111. App. 465; Rogers v. Galveston City R. Co., 76 Tex. 502; 13 S. W. Rep. 540; Michael ». Stanley, 76 Md. 464; 23 Atl. Eep. 1094; Clark v. Missouri Pac. Ey. Co., 48 Kan. 654; 29 Pac. Rep. 1138; Monaghanc. New York, etc., R. Co., 46 Hun, 113. (j)) Manufacturing Co. v. Morrissey, 40 Ohio St. 148 ; 48 Am, Rep. 669 ; Patterson «;. Pittsburgh, etc., R. Co., 76 Pa. St. 389; 18 Am. Rep. 412; Hough V. Texas, etc., E. Co., 100 U. S. 213; Greene v. Minneapolis, etc., R. Co. 248; 47 Am, Rep. 786; Missouri Furnace Co. v. Abend, 107 111. 44; 47 Am. Rep. 425; Kroy «. Chicago, etc., E. Co., 32 la. 257; Louisville & N. E. Co. v. Kenley,92 Tenn. 207; 21 S. W. Eep. 326; Mc- Cormick Harvesting Machine Co. v. Burandt, 136 Ul. 170; 26 N. E. Eep. '588; Southejin Kan. Ry. Co. v. Crocker, 41 Kan. 747; 21 Pac. Rep, 785; New Jersey & N. Y, R. Co, v. Young, 49 Fed. Rep. 723; 1 U. S. App. 96; 1 C C. A. 428; Goldberg v. Schrayer, 37 111. App. 316; Southern Pac. Co. o. Leash, 2 Tex. Civ. App. 68; 21 S. W. Rep. 663; Chicago& G. W. E. Co. V. Travis, 44 111. App. 466 ; Breckenridge Co. ■». Hicks, 94 Ky, 362 ; 22 S. W. Rep. 554; Rothenberger «. Northwestern Milling Co, (Minn,), 69 N. W. Eep. 531. (e) Patterson v. Pittsburg, etc., R. Co., 76 Pa. St, 389 ; 18 Am, Rep. 412; Hawleyo. New York, etc., R. Co., 82 N. Y. 370; Buzzell v. Manu- facturing Co., 48 Me. 113; Greene v. Minneapolis, etc., R, Co,, 31 Minn. 248; 47 Am. Rep. 786; Flynn v. Kansas, etc., R., 78 Mo. 195; 47 Am. Rep. 98; Schnlz v. Eohe, 24 N. Y. S. Rep. 118; St. Clair Nail Co, v. 176 NEGLECT OP DUTIES REQDIEING OHDINART CAEE. been agreed upon, and the servant cannot recover. The reason of this is said to be (Clark v. Holmes, supra) that there is contributory negligence on the part of the servant ; but it is suggested in " Sherman on Negligence," s. 97, that the true ground is that the servant has waived the objection and induced the master to suppose that it is waived, or, as we are inclined to say, the servant has renewed the service accepting the risk. The principles upon which a master is held not to be responsible to his servants for injuries, the risk of which the servant has undertaken (r), are very clearly stated by Lord [137] Cran worth (s). After stating the liabilities of mas- ters to third persons, his lordship thus proceeds to deal with the master's liability to his servant : — " But do the same principles apply to the case of a workman injured by the want of care of a fellow-work- man (t) engaged together in the same work? I think not. When the workman contracts to do worTe of any partic- ular sort he knows, or ought to know, to what risks he is exposing himself; he knows, if such be the nature of (r) As to who Is a " fellow -servant," supra. See also Lovell v. Howell, L. B. see post, p. 179 ; as to " common employ- 1 0. F. D. 161 ; 45 L. J. G. F. 387 (sack of ment," a&epost. grain on a crane injuring waterman), (s) BartonshiU Coal Co. v. Beid, 3 (t) This Is an example of the rale, Macq. 232; and the passage is approved bat not the rnle Itself; see Wilson v. of by Oaims, L. C, in Wilson v. Merry, Merry, L. E. 1 So. App., p. 332. Smith, 43 111. App. 105; New Jersey & N. Y. E. Co. v. Young, 49 Fed. Eep. 723; lU. S. App.96; 1C.C.A.428; Weber Wagon Co. ». Kehl, 139 111. 644; 29 N. B. Eep. 714; Schlitz v. Pabst Brewing Co. (Minn.), 59 N. W. Eep, 188. InG. H.& San Antonio Ey. Co. (59 Tex. 10; 46 Am. Eep. 261), it was Iield tliat tiie servant's complaint to the master of the defective character of the machinery he vras employed to work with, did not relieve him from the charge of contributory negligence in continuing to use it unless the master expressly or impliedly promised to repair the defect. If the servant remains in the employment after reasonable time for the defect to be remedied as promised, he assumes the risk of such defect.— Joliet, A. & N. Ey. Co. v. Velie (111.), 26 N. B. Sep. 1086; Davis V. Graham, 2 Colo. App. 210; 29 Pac. Eep. 1007. MASTER AOTJ SEKVAKT. 177 the risk, that want of care on the part of a fellow- servant (m) may be injurious or fatal to him, and that against such want of care his employer cannot by possi- bility protect him. If such want of care should occur, and evil is the result, he cannot say that he does not know whether the master or the servant was to blame. He knows that the blame was wholly that of the servant. He cannot say the master need not have engaged in the work at all, fc«" he was party to its being undertaken. Prin- ciple, therefore, seems to me opposed to the doctrine that [138] the responsibility of a master for the ill conse- quences of his servant's carelessness is applicable to the demand made by a fellow-workman in respect of evil re- sulting from the carelessness of a fellow workman when engaged in a common work." It should, however, be remarked that probably, in point of fact, no such reasoning exists in the mind of a person undertaking a service, and that, on the contrary, most serv- ants would be much surprised to learn the real state of the law. It has also been doubted whether the law as it stands at present is not injurious, and is not calculated to induce carelessness in both masters and servants. The master does not care to know what careless acts are done by his servants, and the servants do not care if the master does not. When an accident happens no one is liable, and no- body cares except the unfortunate man who is injured. It is doubted whether there is sufficient reason for depart- ing from the ordinary rule that masters are responsible for the negligence of their servants, but not for acts done out of the course of their employment (a;) . The rule above laid down by Lord Cranworth only ap- plies to such dangers as the servant might be reasonably (u) As to this, see in/ra. mitigated the evil. [See Beach on Cont. (x) The above paragraph was written Neg., pp. 321, ^4, where the doctrine Is before the passing of the Employers' severely criticised.] Iiiabllity Act, which has, in some degree, 12 178 NEGLECT OF DUTIES EEQaiRING ORDINARY CARE. aware of (y), and even if aware of the danger, yet if he reasonably thought that by using additional caution he could avoid the danger, and if he did use additional and proper caution, the master would, it has been suggested, be still liable (a). If the master's own negligence is the proximate cause of the injury it is no defense for him to allege that there was contributory negligence in a fellow-servant (a). (j/) See Brltton v. Gt. Western Oot- Blver Ey. Co. v. Barber, 5 Ohio St. 541, ton Co. , L. E. 7 Ex. 130 ; 41 L. J. Er . 99. 665, per Bartleyi J. (z) Shearman, s. 96, citing Snow v. (a) Cayzer'». Taylor, 10 Gray, 274; Honsatonlc Ey. Co., 8 Alien, 441; Mad. see post. Oh. VI., Contributory Negli- gence. |j»o««, p. 179]. (a) Clark v. Soule, 137 Mass. 380; Cone v. Delaware, etc., E. Co., 81 N. Y. 206; 37 Am. Rep. 491; Stettler v. Chicago, etc., E. Co., 46 Wis. 497; 29 Am. Eep. 102; Critchfleld v. Eichmond, etc., E. Co., 76 N. C. 320; Grand Trank E. Co. v. Cummings, 106 U. S. 700; Paulmier v. Erie Ey. Co., 34 N. J. L. 151. See The Atchison, etc., E. Co. v. Holt, 29 Eaa. 149; P. C. & St. L. Ey. Co. v. Henderson, 37 Ohio St. 649; Franklin ». Winona & St. P. E. Co., 37 Minn. 409; 34 N. W. Eep. 898; Eichmond & D. R. Co. o. Pannill, 89 Va. 652 ; 16 S. E. Eep. 748; Coppins o. New York, etc., R. Co., 122 N. Y. 667; 25 N. E. Rep. 915, affirming 48 Hun, 292; Bean v. Western N. C. R. Co., 107 N. C. 781; 12 S. E. Eep. 600; Ander- son ». The Ashebrook, 44 Fed. Eep. 124; Norfolk & W. E. Co, o. Phelps, 90 Va. 666; 19 S. S. Eep. 662; Clyde v. Eichmond & D. E. Co., 69 Fed. Eep. 394; Louisville, N. A. .& C. Ey. Co. v. Berkey, 136 Ind. 181; 36 N. E. Bep. 3; Gulf, C. & S. F. Ey. Co. v. Eizziah, 76 Tex. 81; 23 8. W. Rep. 578; Delude v. St. Paul City Ey. Co., 65 Minn. 63; 66 N. W. Eep. 461; Morrisey v. Hughes, 66 Vt. 663; 27 Atl. Eep. 205; Northwestern Fuel Co. ». Danielson, 67 Fed. Eep. 915; 6 C. C. A. 281; Union Pac. Ey. Co.i7. Callaghan, 56 Fed Rep. 988; 6 C. C. A. 205; Cincinnati, N. O. & T. P. E. Co. 0. Clark, 57 Fed. Eep. 126; 6 C. C. A. 281, (&} Farwell v. Boston, etc., E. Co., 4 Mete. 49; Murray v. South Car- olina R. Co., 1 McMillan, 386; Chicago, etc., R. Co. v. Ross, 112 IT. S. 377; Alabama, etc., Ey. Co. v. Waller, 48 Ala. 459; Crusselle v. Pugh,67 Ga. 430; 44 Am. Rep. 724; Peterson v. Whitebreast Coal, etc, Co., 60 la. 673; 32 Am, Rep, 143; Chicago, etc, R, Co. v. Geary, 110 III. 383; Johnson v. Boston Towboat Co., 136 Mass. 209; 46 Am. Rep. 468 ; Joslin V. Grand Rapids Ice Co., 60 Mich, 616 ; 46 Am. Eep, 64 ; Murphy v. Boston, etc., E. Co., 88 N, Y. 146; 42 Am. Rep. 240; Keystone Bridge Co. v. Newberry, 96 Pa. St. 246; 42 Am. Eep. 643; Luebke v. Chicago, etc., E. Co., 59 Wis. 127; 48 Am. Eep. 483; Theleman v. Moeller, 73 la, 108; 34 FELLOW-SERVANT. 179 [139] A master is not in general liable to his servant for damage resulting from the negligence of & fellow-servant in the course of their common employment (6). (6) Wigmore v. 3&y, 6 Ezch. 364; , -wick By. Co., 6 Exch. 343; Vose «;. Lan- Hntchlnson v. Tork, Newcastle & Bei- cashlre & Yorks. By., supra. N. W. Rep. 765; Fisk v. Central Pac. R. Co., 72 Cal. 38; 13 Pac. Rep. 14t; Dewey v. Parke, Davis & Co., 76 Mich. 631; 43 N. W. Rep. 644; Fort Hill Stone Co. v. Orm, 84 Ky. 183; Byrnes v. New York, etc., Co., 113 N. Y. 251; 21 N. E. Rep. 50; The Sachem, 42 Fed. Rep. 66; Hanley v. Grand Trunk Ry. Co., 62 N. H. 274; Filbert v. Delaware & H. C. Co., ( New York ), 23 N. E. Rep. 1104; Johnson v. Ashland Water Co., 77 Wis. 51 ; 45 N. W. Rep. 807 ; Hoar v. Merritt, 62 Mich. 386 ; 29 N. W. Rep. 15; Quebec S. S. Co. v. Merchant, 133 U. S. 375; 10 S. Ct."Rep. 397; Anderson v. Oliver, 138 Pa. St. 156; 20 Atl. Rep. 881; 27 W. N. C. 123; Grimsley v. Hankins, 46 Fed. Rep. 400; Henshaw v. Pond's Extract Co., 66 Hun, 632; 21 N. Y. S. Rep. 177. (d) Lake Shore, etc., Ry. Co. ». Lavalley, 36 Ohio St. 221 ; Cowles v. Richmond, etc., R. Co., 84 N. C. 309; Chicago, Milwaukee & St. Paul R. Co. V. Ross, 112 U. S. 377; Berea Stone Co. v. Kraft, 31 Ohio St. 287; Webb V. Richmond & D. R. Co.. 97 N. C. 387; 2 S. E. Rep. 440; Lewis V. SeiJert, 116 Pa. St. 628; 11 Ati. Rep. 614; Duffy r. Oliver, 131 Pa. St. 203; 18 Atl. Rep. 872; Galveston, H. & ^. H. Ry. Co. v. Smith, 76 Tex. 611; 13 S. W. Rep. 562; Hedley v. Pinkney [1892], 1 Q. B. 58; Foster v. Missouri Pac. Ry. Co., 115 Mo. 165; 21 S. W. Rep. 916; Baltimore & O. R. Co. V. Bangh, 149 IT. S. 368; 13 S. Ct. Rep. 914; Fordyce v. Briney, 58 Ark. 206; 24 S. W. Rep. 250; Kenny v. Cnnard S. S. Co., 55 N. Y. Super. Ct. 658. Fellow-Servant. — The following have been held to be fellow-servants. Brakeman and car inspector.— Smith v. Flint, etc., R. Co., 46 Mich. 258; 41 Am. Rep. 161 ; Mackin v, Boston, etc., R. Co., 136 Mass. 201 ; 46 Am. Rep. 456; Little Miami R. Co. v. Fitzpatrick, 42 Ohio S. 318; Bal- lon V. Chicago, etc., R. Co., 64 Wis. 259; 41 Am. Rep. 31. Contra, Condon v. Missouri Pacific R. Co., 78 Mo. 567; Cooper v. P. C. & St. L. R. Co., 24 W. Va. 37; Braun v. Chicago, etc., R. C, 53 la. 595; 36 Am. Rep. 243; Fay v. Minneapolis, etc., R. Co., 30 Minn. 231. Brakeman and conductor on same train. — Pease v. Chicago, etc., R. Co., 61 Wis. 163; Dow v. Kansas Pacific R. Co., 8 Kan. 642; Hayes V. Western R. Co., 3 Cush. 270; Smith c. Flint, etc., B. Co., 46 Mich. 268. See Central R. Co. ». De Bray, 71 Ga 406. Brakeman on one train and conductor or engineer on another train belonging to the same company. — Pittsburgh, etc., R. Co. v. Devinney, 17 Ohio St. 197. Brakeman and engineer. — P, C. & St. L. R. Co. ». Ranney, 37 Ohio St. 665; Missouri Pac. Ry. Co. e. Texas & P. Ry. Co., 31 Fed. Rep. 527. 180 NEGLECT OF DUTIES KEQUIKING OKDINAEY CABE. [140] This is stated to be upon ttie principle that the servant has undertaken the service subject to the risk of Brakemau on freight train and engineer on passenger train of samti company. — Louisville, etc., B. Co. v. Kobinson, 4 Bush, 507. Brakeman and fireman. — Kersey v. Kansas City, etc., E. Co., 79 Mo. 862. See Hughes v. Winona, etc., B. Co., 27 Minn. 137; Greenwald v. Marquette, etc., B. Co., 49 Mlcb. 197; Belyea^e. Kansas City, etc., B. Co^, 112 Mo. 86; 19 S. W. Bep. 1116. Brakeman on one train using switch and engineer of another train. — Bandallt;. Baltimore, etc., B. Co., 109 T7. S. 478. Brakeman and persons loading gravel train. — Henry o. Staten Island B. Co., 81 N. Y. 373. Brakeman and another brakeman together with conductor of freight train. — Hayes v. Western B. Corp., 3 Cush. 270. Brakeman on one train and mechanics in repair shops, and Inspector of machinery and rolling stock. — Wonder v. Baltimore, etc., B. Co., 32 Md. 418; Besel v. N. Y., etc., E. Co., 70 N. Y. 171. Contra, Blessing v. Mis- souri, etc., E. Co., 77 Mo. 410. Brakeman and " section bbss." — Slattery v. Toledo, etc., E. Co., 23 Ind. 81. Contra, Nashville, etc., E. Co. v. Carroll, 6 Heisk. 347.^ Brakeman or engineer and section or track men. — Connelly v. Minne- apolis B. Ky. Co., 38 Minn. 80 ; '35 N. W. Bep. 582. Brakeman and switch tender. — Slattery v. Toledo, etc., B. Co., 23 Ind. 81; 41 Am. Bep. 662; Toner v. Chicago, etc., By. Co., 69 Wis. 188; 31 N. W. Bep. 104; 33 N. W. Bep. 433; GafEney v. New York & N. B. E. Co., 15 E. I. 466; 7 All. Bep. 284. Brakeman and train dispatcher.^ Bobertson v. Terre Haute, etc., B. Co., 78 Ind. 77. Contra, PMUlps v. Chicago, etc., By. Co., 64 Wis. 474; N. W. Bep., Dec. 12, 1886. Brakeman and workman on road setting up and using derrick. Holden v. Fitchburg E. Co., 129 Mass. 268. Carpenter and man in charge of train by which he is carried to his work.— Seaver o. Boston, etc., B. Co., 14 Gray, 466; Vick v. N. Y., etc., B. Co., 95 N. Y. 267; 47 Am. Bep. 86. Contra, O'Donnell v. Allegheny, etc., B. Co., 69 Fa. St. 239. Carpenter and sawyer,— Sayward v. Carlson, 1 Wash. 29; 23 Pac. Bep. 830. Car repairer and head brakeman and yardmaster. — Beesel v. N. Y., etc., B. Co., 70 N. Y. 171. Car repairer and assistant switchman. — Clark v. St. Paul, etc., B. Co., 28 Minn. 128. Car repairer at particular station and engineer in charge of svritch engine at same station. — Valtez v, Ohio, etc., B. Co., 86 111. 600. Conductor and station baggage master.— Colorado, etc., B. Co. o. FBLLOW-SBEVANT. 181 negligence [141] in his fellow-servants (c), or, as we have before said, the law implies that it is one of the terms (c) Hutchinson v, T. K. & B. By. Co., 6 Ex. 352; per Aldeison, B.; Wilson v. Merry, infra. Martan, 7 Colo. 592; 4 W. C. Eep. 663; Kerlin v. Chicago, etc., R. Co., SO Fed. Eep. 185. Condactor and fireman. — Slater v. Jewett, 85 N. T. 61 ; 39 Am. Kep. 627. <, Condactor of a dnmp or gravel train and common laborer. — O'Con- nell V. Baltimore, etc., B. Co., 20 Md. 212; Ryan v. Cumberland, etc., B. Co., 23 Pa. St. 384; McGowan v. St. Louis, etc., E. Co., 61 Mo. 528; Oassidy o. Maine, etc., R. Co., 70 Me. 488; Cumberland Coal Co. v. Scally, 27 Md. 589; Heine o. Chicago, etc., E. Co., 68 Wis. 625. Contra, Chicago, etc., B. Co. v. Bayfield, 37 Mich. 205; Moon's Admr. v. Rich- mond, 78 Ya. 746; Lalor v. Chicago, etc., R. Co., 62 111. 401. Conductor traveling on another train to place of service, and employes in charge of train. — Manville v. Cleveland, etc., R. Co., 11 CWiio St. 417. Conductor and coal miner employed by mining company detailed to -work at repairing break in railway. — Cumberland Coal and Iron Co. v. ScaUy, 27 Md. 689. Engineer and fireman. — Murray o. South Carolina B. Co., 1 McMillan, 385; St. Iiouis, etc., B. Co. v. Britz, 72 111. 266; Henry v. Lake Shore, etc., E. Co., 49 Mich. 495; NashvUIe, etc., E. Co. v. Handman, 13 Lea, 423; Gulf, C. & S. F. Ey. Co. v. Blohn, 73 Tex. 637; 11 S. W. Bep. 637. Engineer and brakeman. — NashvUIe, etc., R. Co. v. Wheless, 10 Lea, 741; 43 Am. Eep. 317; South Florida E. Co. v. Price, 32 Fla. 46; 13 So. Bep. 638; Newport News & M. V. Co. v, Howe, 52 Fed. Bep. 362; 3 C. C. A. 121; 6 U. S. App. 172; Warmington v. Atchison, etc., B. Co., 46 Mo. App. 159. Contra, Louisville & N. E. Co. v. Brooks, 83 Ey. 129; North- «m Pac. R. Co. v. Cavanangh, 51 Fed. Bep. 517; 2 C. C. A. 358; 10 U. S. App. 197; Norfolk & W. B. Co. v. Thomas, 90 Ya. 205; 17 S. £. Rep. 384. In Gray v. Philadelphia, etc., R. Co., 24 Fed. Rep. 168, it was held that where a fireman on a railroad train is injured by a collision at a crossing of two roads, brought about by the concurring negligence of the engineer on his train and of the employes of the other road, his right to recover damages for such injury from the other road wHl not be defeated by reason of the negligence of the engineer. Engineer and brakeman on different trains. — Randall V.Baltimore, etc., E. Co., 109 U. 8. 478; Rttsburgh, etc., E. Co. v. Devinney, 17 Ohio St. 197; Baltimore & O. E. Co. v. Andrews, 50 Fed. Eep. 728; 1 C. C. A. Rep. 636. Engineers on different trains. — Van Avery v. Union Pac. Ey. Co., 86 Fed. Bep. 40. 182 NEGLECT OF DUTIES EEQUIRING ORDINARY CARE. of the contract of [142] service that the servant shall accept the ordinary risks of the service, of which the neg- ligehce of fellow-servants is one. Engineer and slioveller on gravel train. — Ohio, etc., B. Co. v. Tin- dall, 13 Ind. 366. Engineer and section hand. — H. & T. C. By. Co. v. Bider, 62 Tex. 267; Atchison, T. & S. P. B. Co. v. Martin (N. M.), 34 Pac, Bep. 536. Engineer and roadmaster. — Walker v, Boston, etc., B. Co., 12& Mass. 8. Engineer and laborers on gravel traini — Eyan v. Cumberland Valley, etc., B. Co., 23 Pa. St. 884; Parrish v. Pensacola & H. B. Co., 28 Fla. 261; 9 So. Bep. 696; Northern Pac. B. Co. v. Smith, 69 Fed. Bep. 993'; 8 C. C. A. 663. Contra, Dobbin v. Bichmond, etc., B. Co., 81 N. C. 446 ; 31 Am. Bep. 612. Engineer and conductor. — Bagsdale v. Memphis, etc., B. Co., 6& Tenn. 426: Slater v. Jewett, 85 N. Y. 61; Lasfcy v. Canadian Pac. By. Co., 83 Me. 461; 22 Atl. Bep. 367. Contra, Chicago, etc., B. Co. v. Boss, 112 TJ. S. 377; Coontz v. Missouri Pac. By. Co., 121 Mo. 662; 26 S. W. Bep. 661. Engineer and telegraph operator. — Slater v. Jewett, 85 N. Y. 61 ; 3^ Am. Bep. 627; Blessings. St. Louis, etc., B. Co., 77 Mo. 410; Monaghaa V. New York, etc., B. Co., 46 Hun, 113. Engineer and yardmaster. — Evans v. Atlantic, etc., B. Co.,62 Mo. 49. Engineer and person employed to watch ties along road riding on train under orders. — Dallas v. The G. Col. & S. F. By. Co., 61 Tex. 196. Engineer in Qharge of steam shovel and workman engaged with ma- chine. — Thompson v. Chicago, etc., B. Co., 18 Fed. Bep. 239. Engineer and servants , of contractor engaged in furnishing wood to railroad on train. — Illinois, etc., B. Co. v. Cox, 21 ni. 20. Engineer and switch tender. — FarweU o. Boston, etc., B. Co., 4 Mete. 49 ; Slattery v. Morgan, 35 La. Ann. 1166 ; Butledge v. Missouri Pac. By> Co., 123 Mo. 121; 24 S. W. Bep. 1053, affirmed in 27 S. W. Bep. 327; Naylor ». New York, etc., B. Co., 33 Fed. Bep. 801 ; Chicago, B. I. & P. By. Co., V. Touhy, 26 111. App. 99. But a yard switchman is not a f ellow- servantof a locomotive engineer.— Louisville & N. W. Co. o. Sheets (Ky.. App.), 18 S. W. Bep. 248. Engineer and track repairer. — Whaalan v. Mad Biver Co., 8 Ohio St. 249; Ohio, etc., B. Co. ». CoUarn, 73 Ind. 261; 88 Am. Bep. 134; Elling- ton V. Beaver D. L. Co., 93 Ga. 63; 19 S. E. Bep. 21; Van Wickle v. Manhattan By. Co., 82 Fed. Bep. 278. Contra, Vlyanv. Kansas City, etc., E. Co., 78 Mo. 195; Schlereth o. Missouri Pac. By. Co., Il6 Mo. 87; 21 S. W. Bep. 1110; 19 S. W. Rep. 1134. FELLOW-SEKVANT. 183 [143] " Fellow-servants are those who serve the same master and are under his control. One may be under the Engineer and car repairer.— Texas & P. Ey. Co. v. Cnmpston, i Tex. Civ. App. 25; 23 S. W. Eep. 47. Engineer and station agent employed at station whose dnties involve coupling and uncoupling cars.— Wilson o. Madison, etc., R. Co., 18 Ind. 226. Engineer and station agent. — Brown v. Minneai>olls, etc., B. Co., 81 Minn. 553. Firemaa and servants of independent contractor at work for company on train. — Illinois, etc., R. Co. v. Cox, 21 111. 20. Eireman and roadmaster. — Walker v. Boston, etc., R. Co., 128 Mass. 8. Eireman and telegraph operator. — Cincinnati, N. O. & T. F. B. Co. v. Clark, 57 Eed. Bep. 125; 6 C. C. A. 281; approving McEiug v. Northern Fac. R. Co., 42 Eed. Rep. 288. Foreman and laborer. — Keystone Bridge Co. v. Newberry, 96 Pa. St. 246; 42 Am. Rep. 543; Eraker v. St. Paul, etc., Ry. Co., 32 Minn. 54; Willis V. Oregon, etc., Ry. & Nay. Co., 11 Ore. 257; The Indiana Car Co. V. Parker, 100 Ind. 181; De Marcho v. Builders* Iron Eonndry (B. I.), 28 Atl. Rep. 661 ; Sagrone v. Mobile & O. R. Co., 67 Miss. 592; 7 So. Rep. 432; Noyes v. Wood, 102 Cal. 389; 36 Fac. Rep. 766; Gon^or v. M. & St. L. Ry. Co., 36 Minn. 385; 31 N. W. Rep. 515; Larich V. Moles (B. I.}, 28 Atl. Bep. 661 ; Olsen v. St. P., M. & M. By. Co., 38 Minn. 117; 35 N. W. Rep. 866; Sullivan o. New York, etc., R. Co., 62 Conn. 209; 25 Atl. Rep. 711; McGinley v. Levering, 162 Pa. St. 366; 25 Atl. Rep. 824; Stephens v. Doe, 73 Cal. 26; 14 Fac. Rep. 378. Contra, Luebke v. Chicago, etc., R. Co., 59 Wis. 127; 48 Am. Rep. 483; Dowllng V. AUen, 74 Mo. 13; 41 Am. Rep. 298 ; Gilmore v. Northern Paci- fic R. Co., 18 Eed. Rep. 86; Honser v. Chicago, etc., Ry. Co., 60 la. 230; 46 Am. Rep. 65; Chicago, etc., R. Co. v. May, 108 HI. 288; Lake Shore, etc., R. Co. V. Lavalley, 36 Ohio St. 221 ; Hannibal, etc., R. Co. v. Fox, 31 Ean. 58; Brown v. Sennet, S. C. Cal., 21 Bep. 450; Zintek v. Stimson Mill Co., 6 Wash. St. 178; 32 Fac. Bep. 997; Helen v. Goodwin, 92 Tenn. 385; 21 S. W. Bep. 760. Gripman and track- watcher. — Murray v. St. Louis, etc., By, Co., 98 Mo. 673; 12 S. W. Bep. 252. Laborer engaged in hauling and those engaged in blasting rock. — Bogard v. The Louisville, etc., Co., 100 Ind. 491. Laborer drilling holes in an iron girder and another removing rub- bish.— Somer v. Harrison (Fa.), 8 Atl. Bep. 799. Laborer engaged in getting out ballast and track layer who laid a tem- porary track on which laborer was at work. — Sherman v. Bochester, etc., B. Co., 17 N. Y. 153. Laborer upon a construction train and the engineer and conductor. — Miller v. Ohio & M. By. Co., 24 HI. App. 326. 184 NEGLECT OF DUTIES BEQUIBING OKDINARY CAEE. control [144] of the other (d), but if they are both under the master's control they are fellow-servants (e). (d) Seaile v. Lindsay, 11 C. B. N. S. 429; Feltbam v. England, L. B. 2 Q. B. 33; 36 L. J. Q. B. U. It seems that In Kentucky, Ohio, and Georgia the decis- ions haye been to the contrary effect, and it has been held that it a servant is so nnder the control of another servant that he is nnable to take precautions against that servant's negligence, they are not fellow-servants: Shearman, s. 100, note i, citing Cleveland By. Co. v. Eeary, 3 Ohio St. 201; Little Miami By. Co. V. Stevens, 20 Ohio, 415; Cooper v Mullins, 30 Ga. 146, and there wonld seem to be very great justice in this view. Somewhat the same view seems to have been taken in Scotland : M'Auley V. Brownllo, 22 Danlop, 975; Somerville V, Gray, 1 M'Pherson, 768; but such is clearly not the law in England ; see Wil- son V. Merry, supra; Feltham v. England, sapra; [ante, p. 179]. (e) The following persons have been held to be fellow-servants:— Wilson v. Merry, L. B. 1 S. & b. 326 (a servant who has left the service, and has during serv- ice done a negligent act, is fellow-ser- vant to one who comes into the service afterwards) ; Feltham v. England, Law Bep. 2 Q. B. 32; 36 L. J. Q. B. 14 (work- man under control of foreman) ; Searle 11. Lindsay, 11 C. B. N. S. 429 (third engineer under control of llrst engineer in ship) ; Sherman v. Bochester By. Co., 17 N. Y. 153 (brakeman and engineer of train) ; Wiggett v. Fox, 11 Exch. 832 (workman under subcontractor engaged In doing by piecework particular por- tions of common work, viz., building tower at Crystal Palace) ;OharleB». Tay- lor, L. B. 3 O. P. D. 492 (man unloading coals from barge, and man lifting barrels) ; Wright ii; London & N. W. By. Co., 45 l! J. Q. B. 670; L. E. 1 Q. B. D. 252 (unloading a heifer) ; Howells v. Lan- dore Steel Co., L. B. 10 Q. B. 62; 54 L. J. Q. B, 25 (certificated manager of mine and miner); Lovell v. Howell, tupra (waterman and servants at granary with sack on a crane) ; Conway v. Belfast & Northern By. Co., 11 Ir. E. O. L. 345 (general traffic manager and milesman) ; Lovegrove v. London, Brighton & S. C. By., 16 C. B. N. S. 669; 33 L. J. O P. 329 (laborer filling trucks with ballast and platelayers); Gallagher v. Piper, aid. (laborer erecting scaffolding and build- er's foreman) . The following persons have been held not to be fellow-serv- ants:— Fletcher V. Peto, 3 F. & F. 368 (servant and contractor; plaintiff con- tractor to carry guano, servants to pile it at ordinary wages); Abraham v. Bey- nolds, B H . & N. 143 (plaintiff, servant of carter, to take bales from defendant's warehouse; defendant's servants let bale fall; parties having a common object but different Interests) ; Sawyer v. Butland By. Co., 27 Verm. 370; Smith i>. N. T. & Harlem By. Co., 19 N. J. 127 (contract between two companies for joint use of line — servants not fellow- servants) ; Warbnrton ». Gt. Western By. Co., L. E. 2 Exch. 30 ; 36 L. J. Ex. 9 (porter of one company and engine- driver of another; station used In com- mon; held, not in course of common employment or operation under the samemaster) ; Graham v. North-Eastern By. Co., 18 C. B. N. S. 229 (signalman of one company and driver of another) ; Swainson v. Korth-Eastern By Co.,47 L. J. 372; L. B. 3 Ex. Div. 341 (signalman of one company and driver of another) ; M;urphy v. Smith, 19 C. B. N. S. (boy directed by person to stir explosive sub- stance; question whether such person was "vice-principal" or tellow-serT- ant; held, no evidence of being vice- principal) ; Faterson v. Wallace, 1 Macq. H. L. 748 (accent in charge of mine). Laborer on wood train and section foreman who took up ralL — Drymala v. Thompson, 26 Minn. 40. Laborer going on train to work and signal man. — Seaver t). Boston, etc., E. Co., 14 Gray, 466; Vick ». N. Y., etc, E. Co., 95 N. Y. 267; 47 FELLOW-SERVANT. 185 [145] A volunteer assistant is a fellow-servant, although the mastei' would not be liable to third parties Am. Rep. 36. Contra, O'Donnell v. Allegheny, etc., R. Co., 59 Pa. St. 329. See AveU v. Railroad Co., Md. Ct. App., 19 Rep. 494. Master and mate. — Mathews v. Case, 61 Wis. 491 ; CanlfE v. Blanchard Nav. Co., 66 Mich. 638; 33 N. W. Rep. 744. Master of lighter and one of crew.— Johnson ». Boston Tow Boat Co., 135 Mass. 209. Mate and sailor. — Olson v. Clyde, 32 Hun, 425. Contra, Daub v. Northern :gac. R. Co., 18 Eed. Rep, 625; Benson v. Goodwin, 147 Mass. 237; 17 N. E. Rep. 517. Mechanic in shops and boiler maker. — Murphy v. Boston, etc., R. Co., 88 N. Y. 146. See Fuller v. Jewett, 80 N. Y. 46. Roadmaster and common laborer. — Brown v. Winona, etc., R. Co., 27 Minn. 162; 38 Am. Kep. 285; Lawler v. Androscoggin, etc., R. Co., 62 Me. 463; 16 Am. Rep. 492; contra, Atchison, etc., R. Co, v. Moore, 31 Kan. 197. Roadman in mine and miner. — Troyhear v. Lower Vein Coal Co., 62 la. 576. Section hand and roadmaster engaged in raising wrecked freight cars. — Brown v. Winona, etc., R. Co., 27 Minn. 162. Section men and switchmen. — Cincinnati, N. O. & T. P. Ry. Co. v, Mealer, 50 Fed. Rep. 725; 1 C. C. A. 633. Section man and the " boss " of a "section gang." — Clarke v, Penn- sylvania Co., 132 Ind. 199; 31 N. E. Rep. 808. Stevedore and boatswain. — The Furnessia, 30 Fed. Rep. 878. Switchman and conductor. — Wilson v. Madison, etc., R. Co., 81 Ind- 226. Swltchman"ordered toTide on engine and engineer. — Smith v. Mem- phis, etc., R. Co., 18 Fed. Rep. 304. Track repairer and foreman of gang. — Weger v. Pennsylvania, etc., R. Co., 55 Pa. St. 460. Track repairer and laborer on train. — Brick v. Rochester, etc., R. Co., 98 N. Y. 211. Track repairer and fireman or engineer of passing train. — Whaalan v. Mad River, etc., Co., 8 Ohio St. 249; Ohio, etc., R. Co. v. CoUam, 73 Ind. 261; 38 Am. Rep. 134; Pennsylvania R. Co. v. Wachter, 60 Md. 395; Collins V. St. Paul, etc., B. Co., 30 Minn. 31; contra, Chicago, etc., R. Co. V. Moranda, 93 111. 302. Track inspector and servants of company in charge of passing trains . Coon V. Syracuse, etc., R. Co., 5 N. Y. 492. Track inspector and engineer. — Lovejoy o. Boston, etc., R. Co., 125 Mass. 79; 28 Am. Rep. 206. Trackman and trainmen. — Schaible v. Lake Shore & M. S. R. Co., 97 Mich. 318; 56 N. W. Rep. 565. 186 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. for his negli- [146] gence as a servant (/"), but a mere passer-by asked to help by workmen is not a volunteer (/) Potter V. Faulkner, 1 B. & S. 100; Degg v. M. Ey. Co., 1 H. & N. 773; [post, p. 189]. Trainmen and engine-wiper. — Ewald v. Chicago & N. W. Ey. Co., 70 Wis. 420; 36 N. W. Kep. 12, 591. Tardmaster and assistant engaged in conpling cars. — McCosker v. Long Island R. Co., 84 N. Y. 77. Wbo are not Fellctv-servants. — In addition to the cases cited, a com- mon hand employed in a gang of men at an employment different from the use to which a switching engine is employed is not a fellow-servant with the engineer of that engine, and the company Is liable for any in- jury sufiered by the hand from the negligence of the engineer. — Gar- rahy v. Kansas City, etc., B. Co., 26 Fed. Rep. 258. Brakeman and road-master. — The Atchison, etc., B. Co. v. Moore, 31 Kan. 197. Brakeman and track repairers. — Torian v, Bichmond & A. B. Co., 84 Ya. 192; 4 S. E. Hep. 339. Brakeman and station agent or yardmaster. — Atchison, T. & S. F. B. Co. V. Seeley, 54 Kan. 21 ; 37 Fac. Bep. 104. Carpenter and station agent. — Palmer v. Utah & N. By. Co., 2 Idaho, 290; 13 Fac. Bep. 425. Car inspector and car -coupler. — Tiemey v. Minneapolis, etc^T'Ry • Co., 33 Minn. 311; 24 Am. Law Beg. 661; Dewey v. Detroit, etc., By. Co., 97 Mich. 329 ; 56 N. W. Bep. 756 ; Potter ». New Tork, etc., B. Co., 136 N. Y. 77; S2 N. E. Bep. 603; St. Lonis, A. & T. By. Co. v. Putnam, 1 Tex. Civ. App. 142; 20 S. W. Bep. 1002; Carpenter v. Mexican Nat. B. Co., 39 Fed. Bep. 315. And brakeman. — Daniels v. Union F. By. Co., 6 Utah, 867; 23 Fac. Bep. 762; Mortons. Detroit, etc., B. Co., 81 Mich. 423; 46 N. W. Sep. III. Car repairer and foreman. — Hannibal, etc., B. Co. v. Fox, 31 Ean. 686 ; Luebke v. Chicago, etc., B. Co., 69 Wis. 127. Conductors and persons employed to run train. — Chicago, etc., B. Co. V. Boss, 112 U. S. 377. Conductor and car Inspector. — Bansier v. Minneapolis, etc.. By. Co., 31 Minn. 831. CondujBtor and brakeman of different trains. — Zeigler v. Danbury, etc., B. Co., 62 Conn. 643 ; 21 Bep. 201. Contra, Becker v. Baltimore & O. B. Co., 57 Fed. Bep. 188. Conductor and telegraph operator. — East Tenn., Va. & G. B. Co. «. De Armand, 2 Pick. (Tenn.), 73; 6 S. W. Bep. 600. Conductor of gravel train and gang of men under his immediate con- trol.— Burlington, etc., B. Co. V. Crockett, 19 Neb. 138; 26 N. W. Bep. 921. MASTER AND SERVANT — VOLUNTEER. 187 assistant (g), nor is a person who performs a part of a contract or duty which another is bouud to perform by (flr) Cleveland v. Spier, 16 0. B. N. 8. 399. Employes of two railroad companies having running connections over tlie same road.— Phillips v, Chlbago, etc., E. Co., 64 Wis. 475; 25 N. W. Rep. 644; Central R. of N. J. v. Stoermer, 61 Fed. Rep. 518; 2 C. C. A. 360; 1 tJ. S. App. 276; Texas & P. R. Co.c. Easton, 2 Tex. Civ. App. 378; 21 S. W. Rep. 575. Engineer -and fireman. — Ragsdale v. Northern Pac. B. Co., 42 Fed. Rep. 383; SuUivan v. Tioga R. Co., 112 N. Yi 643; 20 N. E. Rep. 569. Engineer or conductor and bridge watchman. — Pike v. Chicago & A. B. Co., 41 Fed. Rep. 96. Servants of different employers. — Conlan v. New York, etc., R. Co., 26 N. Y. S. Bep. 659; Robertson v. Boston & A. R. Co., 160 Mass. 191; 36 N. E. Rep. 775; Alton Lime & Cement Co. v. Calvey, 47 111. App. 343; Beagan v. Casey, 160 Mass. 374; 36 N. E. Bep. 68; Morgan v. Smith, 169 Mass. 670; 35 N. E. Rep. 101. Engineer and master mechanic. — Fuller v. Jewett, 80 N. Y. 46. Engineer of switch engine and common hand engaged in employment different from use of svrltchiDg engine. — Garrahy v. Kansas City, etc., R. Co., 26 Fed. Rep. 268. Engineer and section boss. — St. Louis & S. F. Ry. Co. v. Weaver, 36 Ean. 412; 11 Pac. Rep. 408. Engineer and general manager. — Erogg v. Atlantic & W. P. R. Co., 77 6a. 202. Fireman, bridge builder and road-master. — Davis v. Central Yt. R. R. Co., 66 Vt. 84; 45 Am. Rep. 690. Fireman and train dispatcher. — Hankins v. New York, etc., R. Co., 65 Hun, 61 ; 8 N. Y. S. Rep. 272. Foreman and laborer. — Brown v. Sennet, 68 Cal. 226; 21 Bep. 460; Ft. Worth & D. C. By. Co. v. Pet«rs, 7 Tex. Civ. App. 78; 26 S. W. Rep. 1077; 87 Tex. 222; 27 S. W. Bep. 267; Wabash, St. L. & P. By. Co. v. Hawk, 121 111. 259; 12 N. E. Rep. 263; Cheeney v. Ocean S. S. Co., 121 Ga. 269; 19 S. E. Bep. 33. Mail agent and railroad employe. — Houston, etc., R. Co. v. Hampton, 64 Tex. 427; 1 Tex. Ct. Bep. 337; Seybolt v. B. Co., 96 N. Y. 562; contra, E. Co. V. Price, 96 Pa. St. 266. In this case (Houston, etc., R. Co. v. Hampton, 64 Tex. 427 ; 1 Tex. Ct. Bep. 337) the court say ; " In Pennsylvania these mall agents are placed upon the same footing of employes ; but this is by virtue of an act of the Legislature of that State. The case of Railroad Co. ». Price (96 Pa. St. 256) is directly in point. In that case the mail agent on the train was killed by a collision, and the suit was brought by his widow. It was held she could not recover. The court, however, rests its decision on the statute. 188 NEGLECT OF DUTIES BEQUIBINa ORDINAKY CAItE. the permissioa of the person who would otherwise hme to do it (A). (fc) Wright V. L. & N. W. Ey. Co., X Q. B. D. 252; Holmes v. N. E. By. Co., L. E. Ex. 123. The court ^ay-: ' The effect of the act of Congress is to make his posi- tion on the car a lawful one. Being lawfully on the train a recovery might possibly have been had for his death upon the duty to carry safely.— CoUett v. Railway Co., 16 Q. B. 984, and Nolton v. E. Co., 16 N. Y. 444, go to this extent. But here the act of 1868 comes in and declares that persons employed upon the road shall have only the rights of employes of the company.' The same case is published in 1 Am. and Eng. Bailway Cases, p. 236. In a note on page 239 the editor says: 'The question in the present case was res integra. The authorities cited and relied on by the court below for holding the plaintiffs decedent a passen- ger were: Collett V. E. Co., 16 Q. B. 984; Nolton v. E. Co., 16 N. Y. 444; Yeomans v. ,S. Nav. Co., 44 Cal. 71; Blair v. Eailroad Co., 66 N. Y. 813; -Hammou v. Eailroad Co., 6 Eich. L. 130, and Fenn. Eailroad Co. v. Henderson, 1 Smith, 316. These cases may be admitted to establish the fact that, in the absence of the act of Assembly, the plaintiff would have been entitled to recover. They establish', however, no more. In none of them was it specifically decided that such a person as plaintiff's dece- dent was a passenger as distinguished from a person engaged or employed on or about the road * * * or on or about any train or car * * * thereon.' In the subsequent case of Seybolt v. Eailroad Co. (95 N. Y. 562), it waS'held that a railroad corporation owes the same degree of care to mail agents riding in postal cars in charge of the mails as they do to other passengers. The court, in commenting upon the case of Price, quoted above, use this language : < The opinion in the case of E. E. Co; V. Price not only, does not conflict with the doctrine of these cases, but cites with approval the Nolton case.' The question in that case was upon the construction to be given to the word ' passenger,' as used in the act , of April 4,' 1868, of the laws of Pennsylvania, and it was held from the act that the Legislature intended to exclude postal agents from the class therein designated as passengers * * * , Whatever may be the precise status of a postal clerk on a railroad train, we think it may be fairly concluded that he would be entitled to recover of the company for injuries resulting from the negligence of its employes." Master mechanic and plumber employed in shops ordered to assist in getting locomotive to round-house. — Douglas o. Texas, etc., E. Co., 63 Tex. 664. Mining captain and miners. — Eyan v. Bagaley, 50 Mich. 179 ; 46 Am. Eep. 85. Night watcher and foreman of night crew. — Chicago, etc., E. Co. v. Geary, 110 111. 883. MASTER AND SERVANT — VOLUNTEER. 189 Sometimes, as appears from some of the cases cited infra {i), the servants, although for some purposes they (i) See cases In note (.e) and Wiggett Co., 1 O. P. D. 5S6; 2 C. F. D. 20S; [poet V. Fox, note (e) ; Boarke v. White Moss p. 190]. Section mastei of track laying force and engineer of locomotive engine.— Calvo v. Bailroad Co., 23 S. C. 626; 21Bep. 473; SulllTan ». Missouri Pac. Ky. Co., 97 Mo. 113; 10 S. W. Eep. 862. Section man and fireman.— Union Pac. By. Co. v. Erickson, 41 Neb. 1 ; 59 N. W. Sep. 347. Section man and conductor or signal operator. — Haney v. Pittsburgb, etc., Ey. Co., 38 W. Va. 670; 18 S. B. Eep. 748. Track repairer and switchman. — Hall v. Missouri Pacific By. Co., 74 Mo. 298; Louisville & N. E. Co. v. Ward, 61 Fed. Eep. 927. Track repairer and stock and fuel agent. — Texas and Pac. E. Co. v. Kirk, 62 Tex. 227. Trackmen and those in charge of trains. — Howard v. Delaware & H. C. Co., 40 Fed. Eep. 195. And tram dispatcher. — McChesney v. Panama E. Co., 66 Hun, 627; 21 N. T. S. Eep. 207. (/■) Everhart v. Terre Haute, etc., E. Co., 78 Ind. 292; 41 Am. Eep. 567; Osborne v. Enoz, etc ., E. Co., 68 Me. 49; 28 Am. Eep. 16; Mayton V. T. & P. E. Co., 63 Tex. 77; Honor v. Albrighton, 93 Pa. St. 476; Texas & N. O. By. Co. o. Skinner, 4 Tex. Civ. App. 661; 23 S. W. Eep. 1001; Bonner v. Bryant, 79 Tex. 540; 15 S. W. Eep. 491; Billows v. Moors, 162 Mass. 42; 37 N. B. Bep. 750. See Webb's Pollock on Torts, p. 126. Where an employe of a railroad company engaged in repairing a freight car, caUed upon bis son, a minor, not eleven years of age, to render liim assistance, and the son whUe so assisting, without any negligence on his part, was injured tlirough the negligence of the agents of another railroad, the latter company was held liable in an action by the son for dam- ages. — Pennsylvania E. Co. v. Gallagher, 40 Ohio St. 637. A passenger on a street car assisting a driver at his request in push- ing back a car which went beyond a side track, is not a volunteer nor fellow-servant. — Mclntire St. Ey. Co. v. Bolton, 43 Ohio St. 224. Where a passenger went to assist in getting his trunk out of a baggage car and was negligently killed while so doing, it was held an action could be maintained therefor against the company. — Orman v. Hayes, 60 Tex. 180. A., who was not an employe of defendant railroad company, was re- quested by a watchman to go up the track to a bridge and notify the conductor of an approaching train that there was a broken rail on the track, and being anxious to prevent loss of life, A. did as was bid, and signaled the train to stop as directed. The conductor stopped his train, but started on again, and while the cars were running at about four miles an hour A., fearing that his signal had not been understood, at- 190 NEGLECT OF DUTIES KEQUIEING ORDINABY CAEE. are serving the same master, yet have different masters in other Respects. tempted to' get on the trala and speak to the conductor, when he was thrown and injured. Held, that the company could not be held guilty of negligence; that A. was himself guilty of gross contributory negli- gence, and was not entitled to recover for the injuries received. — Blair V. Grand Rapids & I. R. Co. Opinion by Sherwood, J. Decided Feb. 17, 1886; 33 Alb. L. J. 278 (abstract).' (i) As employes of independent contractors who are held not to be fellow- servants of the employes of the person engaging the contractor. — Devlin v. Smith, 80 N. Y. 470; 42 Am. Rep. 311 ; Coggin v- Central, etc., R. Co., 62 Ga. 685; 36 Am. Rep. 132,; St. Louis, F. S. & W. R. Co. v. WiUis, 38 Kan. 330; 16 Pac. Rep. 728; McLaughlin v. New York L. & T. Co., 27 N. Y. S. Rep. 248; 7.Misc. Rep. 119; Bible v. Norfolk & W. R. Co , 87 Va. 711; 14 S. E. Rep. 163; Welsh o. Parrish, 148 Pa. St. 599; 24 Atl. Rep. 86; Piette v. Bavarian Brewing Co., 91 Mich. 605; 52 N. W. Rep. 152; Harris o. McNamara, (Ala,bama), 12 So. Rep. 103; VChitneyo. Clifford, 46 Wis. 138; 49 N. W. Rep. 835. In the case of foreman and laborer we have seen that the authorities are divided as to whether they are or are not fellow-servants of each other. In Ewan v. Lippincott (47 N. J. L. 192), the defendant owned a saw mill, and gave an order to D. & W., master machinists, to make some alterations in the gearing of the water-wheel of his mill. D. & W. sent the plaintiff and another workman to do the work. It was under- stood between these workmen and the defendant that the mill would run at such times as they were not actually at work upon the wheel. While they were at work upon the wheel the engineer of the defendant negli- gently started the wheel, injuring the plaintiff. It was held that plaintiff was a servant of the defendant, engaged in a common employ with the engineer. (A) It has been held that the power to employ and discharge servants is a test as -to whether an employe is a vice-principal or not. — Stoddard V. St. Louis, etc., R. Co., 65 Mo. 514; Walker v. Bowling, 22 Ala. 294; Wilson V. Williamantic, etc., Co., 60 Conn. 433; 47 Am. Rep. 653; Tyson V. North and South Ala. R. Co., 61 Ala, 654; Beesom v. Green Mountain Gold Mining Co., 67 Cal. 20; Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 111. 673; 36 N. E. Rep. 572; Stevens v. San Francisco & N. P. R. Co., 100 Cal. 654; 35 Pac. Rep. 692; Ft. Smith Oil Co. v, Slover, 58 Ark. 168; 24 S. W. Rep. 106; Patton v. Western N. C. R. Co., 96 N. C. 455; 1 S. B. Rep. 863; McEUigott o. Randolph, 61 Conn. 157; 22 Atl. Rep. 1044. " The true test is whether the person in question is employed to do any of the duties of the master."— Gunter v. Granlteville, 18 S. C. 362; 44 Am. Rep. 673. MASTER AND SKRVANT — FELLOW-SERVANT. 191 The law does not permit a master so to delegate his authority to another as to relieve himself of all liability for A rule " most consonant with jnstice and right reason." — Beach on Contributory Negligence, p. 334. In the note to Farmer v. Central la. Ry. Co. (67 Iowa, 136 ; 24 N. W. Eep . 901), it is said: "The weight of authority, at least in the more recent cases, is to the effect that no matter whether the foreman or superior ser- vant is vested with * executive powers ' or not, if an inferior employe is required to obey the directions of such superior servant or foreman in charge, he ts not a fellow-workman within the rule, and the common master will be liable in damages for any negligence on the part of such superior servant or foreman in charge, which results in injury to an inferior servant or employe; and particularly while attenipting to per- form an act directed by such foreman or superior servant. — Dowling o. Allen, 74 Mo. 13. It may be laid down as a general rule that a master is liable for all injuries caused by the negligence of a fellow-servant when such fellow-servant is empowered with superior authority and may direct the inferior. — Cowles o. Richmond & D. R. Co., 84 N. C. 309; Lake Shore & M. S. Ry. Co. v. Lavalley, 36 Ohio St. 221," citing further, Mc- Casker v. Long Island R. Co., N. Y. Ct. App., 10 Rep. 608; Laning v. New York Cent. R. Co., 49 N. Y. 521; Brickner v. N. Y. Cent. R. Co., Id. 672; Flike V. Boston & A. R. Co., 53 N. Y. 549 ; Malone v. Hathaway, 64 N. Y. 6; Besel v. N. Y. Cent., etc., R. Co., 70 N. Y. 171; Mullen v. Steamship Co., 78 Pa. St. 26; Railway Co. v. Lewis, 33 Ohio St. 196; Dobbin v. Rlchmond,etc R. Co., 18 N. C. 446 ; The Clapsop Chief,7 Sawy. 274 ; Packet Co. V. McCne, 17 Wall. 513 ; Railroad Co. v. Fort, Id. 557 ; Berea Stone Co. V. Kraft, 31 Ohio St. 289; Chicago &N. W. R. Co. v. Moranda, 93 111. 303; Devany v. Vulcan Iron Works, 4 Mo. App. 236; Gormly v. Vulcan Iron Works, 61 Mo. 492; The Chandos, 6 Sawy. 548. The rule is well stated by Mulkey, J., in Chicago & Alton R. Co. v. May, 108 01.676:— " The mere fact that one of a number of servants who are in the habit of working together in the same line of employment for a common mas- ter, has power to control and direct the actions of the others with respect to such employment, will not of itself render the master liable for the negligence of the governing servants resulting in an injury to one of the others vrithont regard to other circumstances. On the other hand, the mere fact that the servant exercising such authority sometimes or gen- erally labors with the others as a common hand, wUl not of itself exon- erate the master from liability for the former's negligence. Every case in this respect must depend on its own circumstances. If the negligence complained of consists of some act done or omitted by one having such authority which relates to his duties as co-laborer with those under his control, and which might just as readily happen with one of them having no such authority, the common master will not be liable. For instance. 192 NEGLECT OF DUTIES EEQUIEINO ORDINARY CARE. negligence; and it seems that it is the law in America that if he delegates to another his power of selecting servants, if the section boss of a railroad company, while working with his squad of men on the company's road, should negligently strike or injure one of them, causing his death, the company would not be liable; but when the negligent act complained of arises out of and is a direct result of the exercise of the authority conferred upon him by the master over bis laborers, the master will be liable. In such a case he is not a fellow- servant of those under his charge with respect to such power, for no one but himself in the case supposed is clothed with authority to command the others. * * * In exercising this power he does not stand upon the same plane with those under his control. His position is one of superi- ority. When- he gives an order within the scope of his authority, if not manifestly unreasonable those under his charge are bound to obey under the peril of losing their situations and such commands are in contempla- tion of law the commands of the company, and hence it is held respon- sible for the consequences." It is the nature of the duty or service performed by the employe, and not his rank or authority, which determines whether he is a fellow-ser- vant or vice-principal (Lindvall v. Woods, 41 Hinn, 212 ; 42 N. W. Rep. 1020) ; however, an authority superior to that of the co-servant necessarily belongs to a vice-principal, and if in the performance of his duties this authority be negligently exercised or omitted the master will be liable for the results. — Stearns v. Beidy, 33 111. App. 246, affirmed in 25 N. E. Bep. 762; Chicago Dredging & Dock Co. v. McMahon, 30 111. App. 358; Harrison v. Detroit, L. & N. B. Co., 79 Mich. 409; 44 N. W. Rep. 1034; Denver, S. P. & P. B. Co. v. DrisooU, 12 Colo. 620; 21 Pac. Bep. 708; Baldwin v. St. Louis, K. & N. W. By. Co., 75 la. 297; 39 N. W. Bep. 507, Sioux City & P. E. Co. v. Smith, 22 Neb. 775; 36 N. W. Bep. 285; Lewis V. Seifert, 116 Pa. 628; U Atl.Bep.i614; Slater v. Chapman, 67 Mich. 523; 36 N. W. Bep. 106; Atchison, T. & S. F. B. Co. v. McEee, 37 Ean. 692; 16 Pac. Bep. 484. As a conductor of a railroad train. — Bitt v. Louisville & N. B. Co. as to alteration in the law. 198 NEGLECT OF buTIES EEQUIRING ORDINARY CARE. nicety and difficulty in peculiar cases in deciding whether a common employment exists ; but in general, by keeping in view what the servant must have known or expected to have been involved in the service which he undertook, a satis- factory conclusion maybe arrived at" (o); or, in other words, the question is, did the servant know that the em- ployment of the other servant was one of the terms of their common service (p)? Is it "the natural and necessary consequence of the employment which the servant has accepted" (q)? All the servants of one roaster may not be engaged in a common employment, their employments may be absolutely distinct and separate, so that one servant could not possibly be supposed to consider the acts of the other to be part of the risks of service which he undertook, [153] but it would be " letting in a flood of litigation," if the " employes in every large establishment are split up into different departments of service; although the com- mon object of their employment, however different, is but the furtherance ot the business of the master, yet it might be said with truth that no two had a common imme- diate object. This shows that we must not over refine, but look at the common object and not at the common imme- diate object (s). Even if their occupations lie far apart, it seems that they may be engaged in a common employ- ment (t). If there is one common general object to be attained by the two servants, it is immaterial that the im- mediate object of their work is different (u). Cp) PerLordOhelmstOTd.BaTtonslilll (s) Morgan «;. Vale of Neatb, nepra. Goal Oo. V. McGnlie, 3 Macq. H. L. 300 (t) Farwell v. Boston By. Co., 1 Mete. 308. 19 (engine-drivers of different trains) ; (p) Feltliam v. England, I/. B. 2 Q. B. [infra]. 36; 36 L. J. Q. B. 14. («) Charles v. Taylor, L. E. 3 C. P. D. (g) Morgan v. Vale of Neath, L. E. 1 49? ; Morgan v. Vale of Neath, supra, per Q. B. 149; 44 L. J. Q. B. 33. PoUoek, 0. B. ; [po$t, p. 199]. (t) Engineer and brakeman on different trains of same company. — Hough V. E. Co., 100 U. S. 213. Condnctor and brabeman on different trains of tlie same company. — Pittsburgh, etc., R. Co. v. Devinney, 17 Ohio St. 197. MASTER AND SERVANT. 199 Section VI. — Sub-section II. (2.) Breach of Duty to Others. A master is responsible to other persons besides his own servants for negligence of himself, his deputy, or his serv- ant while employed as such (w). And he is responsible amougst other things for properly selecting his servants (a;). If the .aervant is not, at the time when he commits an injurious act, engaged in pursuing his master's employ- ment, but in pursuing his own private ends, the master is [1.54] not liable for his servant's acts (y). This is the -(d) Brac:keT v. Fromont, 6 T. B. 659; 237; Store; v. Asbton, L. B. 4 Q. B. 476; [port, p. 154]. 38 L. J. Q. B. 223 (driver not putting np (a) Wilson V. MetTj, L. B. 1 S. & D. horse, bnt driving off on own acconnt) ; 326; Wanstall o. Pooley, 6 CI. & Fin. 910, see, however, Heath v. Wilson, 2 M. & u. ; Wheatley v. Patrick, 3 M. & W. 650. Bob. ISl; and also see Joel v. Morrison, (y) Mitchell v. Crassweller, 13 0. B. 6 0. & P. 601, where a servant made a Engineer and track inspector. — Lovejoy v. Boston, etc., E. Co., 125 Mass. 79. Brakeman and train dispatcher^— Robertson v. Terre Haute, etc., E. Co., 78 Ind. 77; 41 Am. Rep. 552. See " Fellow-servant," ante, pp. 179 et seq. (u) Warner v. Erie E. Co., 39 N. Y. 468, 479; Pittsbnrgli, etc., E. Co. V. Devinney, 17 Ohio St. 197; Wood v. New Bedford Coal Co., 121 Mass. 262; Wilson v. Hudson B. W. & P. Co., 24 N. Y. S. Eep. 1072. (v) Conlon v. Eastern E. Co., 135 Mass. 196; Joslino. Grand Bapids Ice Co., 50 Mich. 516 ; 45 Am. Bep. 54 ; Mitchell v. Bobinson, 80 Ind. 281 ; 41 Am. Eep. 812; Evans v. Davidson, 53 Md. 245; 36 Am. Bep. 400; Vogel V. Mayor, etc., N, Y., 92 N. Y. 17; Carson v. Leathers, 57 Miss. 650; Andrews v. Boedecker, 126 111. 605; 18 N. E. Bep. 651; Brazil v. Peter- son, 44 Minn. 212; 46 K. W. Bep. 331; Brown v. Sullivan, 71 Tex. 470; lO'S. W. Eep. 288; Osbom v. McMasters, 40 Minn. 103; 41 N. W. Eep. 543 ; State v. Swayze, 52 N. J. L. 129 ; 18 Atl. Eep. 697 ; Moore v. Columbia & G. E. Co., 38 S. C. 1; 16 S. E. Eep. 781; Waters v. Pioneer Fuel Co., 52 Minn. 474; 55 N. W. Eep. 52; Western Union Tel. Co. v. Satterfleld, 34 ni. App. 386; Potulni v. Sanders, 37 Minn. 517; 35 N. W. Rep. 379; Electric Power Co. v. Metropolitan T. & T. Co., 75 Hun, 68; 27 N. Y. S. Eep. 93; Tinker v. New York, O. & W. E. Co., 71 Hun, 431 ; 24 N. Y. S. Eep. 977; Brnner v. American T. & T. Co., 160 Pa. St. 300; 28 Atl. Eep. 690; Ft. Worth & N. O. By. Co. v. Smith (Tex. Civ. App.), 26 S. W. Bep. 1032. 200 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. rule with respect to all wrongful acts, whether negligent or not. If the master has given the servant cause to believe that a certain act will be within the course of his employment, sligbt detonr. It would be a question for still In employment) ; Williams v. Jones, the jnry wbether the servant was sab- 33 L. J. Ex. 297; 3 H. & C. 602, In Bz. Ob. stantially engaged upon his master's (carpenter smoking a pipe set flre to a bnsiuesB or his own. See also Bayner shed ; held, not In conrse of employ- V. Mitchell, L. E. 2 0. P. D. 357 f servant ment) ; I.nnn ti. L. & N. W. By. Co., 35 L. of brewer returning with empty casks, J. Q. B. 105; L. B. 1 Q. B. 277 (watchman not in employment). Where, npon the at level crossing, exercising discretion other hand, the servant was going on his as to passage of a cart) ; Weldon v. New own business In a gig, but undertook Tork & Harlem By. Co., 5 Eosw. 576 (de- some business for his master. In the per- f endant's servant mischievously struck f ormance of which he ran against plain- horses in charge of another servant) ; tiff's horse, the master was held liable; Satterlee v. Groot, 1 Wend. 273 (a serv- Fatten v. Bea, 2 0. B. N. S. 606; Yen- ant being sent for goods of A., brought ablest;. Smith, li.B. 2 Q.B. D. 279; 46 L. aUo goods of B., and embezzled A.'s J. Q. B. 170 (cab driver returning home goods; master not liable) ; [pott, p. 203], (y) This principle is illustrated in a number of cases. A railroad company is not liable for damage to property adjoining its road by fire kindled by its section men for the purpose of cooking their meals while engaged in repairing track. — Morier v. St. Paul, etc., By. Co., 31 Minn. 351; 47 Am. Rep. 793. Defendant's servant, a teamster, went out of his way to deliver a message at the request of the person to whom he was sent, and while so engaged his team ran away injuring plaintiff. The defendant was held not liable. — Stone v. Hills, 45 Conn. 44; 29 Am. Kep. 635. Defendant's minor son, who had been permitted to use his father's horse and wagon, took them in his absence and without his knowledge on his own business, and while so using them, through his negligence, the horse ran away injuring plaintiff. Defendant was held not liable. — Maddox v. Brown, 71 Me. 432; 36 Am. Bep. 336. But where the defendant, the owner of an express wagon, employed a driver with authority to secure and transact such business as he could; and the driver, having delivered a trunk, on bis return got a load of poles for himself and while carrying them home on the wagon negli- gently ran over and injured plaintifi's child, the defendant was held liable. — MulvihlU v. Bates, 31 Minn. 364; 47 Am. Kep. 7961 Where a conductor stopped his train, pursued a boy on foot into his father's house with a pistol in his hand, seized him and carried him off on the train, it was held that the railroad company was not liable. Gilliam v. South & North Alabama B. Co., 70 Ala. 268. Where a driver for a street railway company having authority to change money for passengers, wrongfully procures the arrest of a pas- senger on the charge of passing counterfeit money, the company is not MAgTEK AND 8EKVANT — SCOPE OF EMPLOYMENT. 201 or if the act is such as servants employed in the same capacity usually perform as part of their duty, then it r liable for the false imprisonment. — Lafflte o. New Orleans, etc., B. Co., 48 La. Ann. 34; 8 So. Bep. 701. The employer of a bill poster is not liable for the death of a horse frightened by a lot of bills left by him in the road about fifteen miles from the boards upon which he was to post them. — Smith v. Spitz, 156 Mass. 819 ; 31 N. E. Bep. 5. In the following cases the servant has been held acting within the line of his employment: — A servant employed in general farm work in driving a cow out of his master's corn field during his absence struck her with a stone which killed her. The master was held liable. — Evans v. Davidson, 58 Md. 245; 36 Am. Bep. 400. So where a servant in testing a boiler tested it beyond its capacity, causing it to explode, though cautioned by the master to test it within a certain limit, which he exceeded, the master was held liable for injuries to a third person. — Ochsenbein v. Shapley, 85 N. Y. 214. And where a toU-gate keeper having charge of the gate at all times, but not required to collect toll at night after nine o'clock, let the beam of the gate down upon the plaintiff who was endeavoring to pass the gate after the hour, and injured him, the company was held liable. — Nobles- viUe, etc.. Gravel Boad Co. v. Gause, 76 Ind. 142; 40 Am. Bep. 224. A pilot of defendant's ferry boat took on board a boatman without compensation, agreeing to put him on his boat in a tow passing up the river. He had done this before but not to defendant's knowledge. The ferry boat diverged from its regular course and negligently collided with a canal boat, killing plaintifE intestate. The defendant was held lia- ble.— Quinn V. Power, 87 N. Y. 535; 41 Am. Bep. 392. See Beilly v. Hannibal & St. J. B. Co., 94 Mo. 600; 7 S. W. Bep. 407. Where a locomotive engineer is permitted to fiag up to a station for water, contrary to a rule of the company, it is held that the company is liable for the consequential injuries to another engineer. — Gross v, Pennsylvania, etc., B. Co., 62 Hun, 619; 16 N. Y. S. Bep. 616. In the following cases the servant was held not acting in the line of his employment, and the master not liable : — Where defendant's armed watchman employed to guard his brewery fatally shot C. as he was retreating from the brewery. — Golden «. New- brand, 52 la. 69; S. P., Candiff v. Louisville, etc.. By. Co., 42 la. 477; 7 So. Bep. 601. See Christian v. Columbus & B. By. Co., 90 Ga. 124; 15 S. E. Bep. 701 ; Haehl o. Wabash E. Co., 119 Mo. 326; 24 S. W. Bep. 737. Where an engineer gave to a boy thirteen years old permission to ride on a freight train and the boy was injured. — Chicago, etc., B. Co. v. Casey, 9 HI. App. 632. See Flower ». Bailroad Co., 69 Pa. St. 210; Daw- kins V. Gulf, etc., E. Co., 77 Tex. 232; 13 S. W. Bep. 984. 202 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. is to be considered as done in the course of the employ- ment, and if it is negligently or wrongfully performed, the master will be liable. The employer "has put his agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has con- ducted himself in doing the business which it was the act of his master to place him in " (a). It, has also been said that there is an implied authority to do all those things («) Barwlck v. English Joint Stock Co., L. B. 2 Ex. 259; 36 I.. J. Ex. 117, per WlUes, J. Where a toll-keeper displays objects near the bridge entrance on premises leased from the bridge company, the company is not liable for injuries to horses friglitened by the objects. — Wiltse v. State Board Bridge Co., 63 Mich. 639; 30 N. W. Rep. 370. See Burger v. St. Louis, etc., K. Co., 123 Mo. 679; 27 S. W. Eep. 393. A railroad company is not responsible where its baggage master, by menaces and threats, and for bis mere amusement, caused a passenger entering the express car to jump from it while in motion. — Louisville, N. O. & T. By. Co. v. Douglass, 69 Miss. 723; 11 So. Rep. 933. But see Stephenson v. Southern Fac. Co., 93 Cal. 658; 29 Fac. Bep. 234. The owner of a foundry for years had given the ashes to their engi- neer in consideration of his removing them after working hours. The engineer deposited them to the knowledge of his employers on an unin- closed lot opposite the foundry owned by third persons whose permis- sion he had obtained, and sold the ashes to third persons and to the defendants. A young child running across that lot, fell into a quantity of the hot ashes, and was bamed. It was held that the owners of the foundry were not liable therefor. — Burke v. Shaw, 69 Miss. 443 ; 42 Am. Eep. 370. Where a coachman after having used his master's horses in going upon an errand for his master instead of taking them to a stable, used them in going upon an errand of his own, without his master's knowledge or con- sent, and while doing so he negligently ran into and injured the plaintiff's horse. It was held that his master was not liable. — Whart. on Neg., § 168, citing Sheridan v. Charlick, 4 Daly, 338. Where a railroad fireman, without authority, but to assist a public celebration, takes torpedoes from the caboose and places them on the track, the company is not liable for the injury caused by their explo- sion — Chicago, B. & Q. E. Co. v. Epperson, 26 HI. App. 72. Defendant was held to be not liable where his employes, whose duty was to run his steamboat, undertook to operate his serial railway and injured plaintiff — Biederman v. Brown, 49 111. App. 483. MASTEK AND SERVANT. 203 that are necessary for the protection of the property en- trusted to a person, or for fulfilling the duty which a [155] person has to perform (a). Where servants of companies have authority to i-emove persons misbehaving themselves [156] upon the premises, the companies have frequently been held liable for the negligent or otherwise wrongful act of their servants in the course of the per- formance of their duty in this respect (6). It has been said that even where an act is within the scope of the servant's employment, yet if it is done for the purpose of performing an act beyond the scope of the employment the master will not be liable. Thus, where a servant's duty was to light fires, but she lit one for the pur- pose of cleaning the chimney, with which she had nothing [157] to do, it was held that her master was not liable (c). Such cases as these must be of somewhat rare occurrence. The case cited scarcely seems to have come within the rule, as it probably was within the scope of the servant's duties to clean the chimneys, if not to sweep them. But, however that may be, a servant cannot properly be said to be per- forming his ordinary duties at the same time that he is pur- suing some purpose differing from his duties. The whole question is, is he performing his ordinary duty, or is he doing something different therefrom ? and this ( subject to an explanation from the judge as to how far the mere license of ordinary practice may be evidence of what the ordinary duty is) is a question for the jury. It is no defense to allege that the servant exceeded his (a) Allen ». Ii. & S. W. Ey., L. B. 6 Q. Line. Ey. Co., L. E. 8 0. P. 148 ; 42 L. J. C. B. 65, per Blackburn, J. P. 78 (assanlt— pOTter palling passenger (i) Seymonr v. Greenwood, 7 H. & If. back from train in motion) ; Moore v. 356; 30 L. J. Ex. 327 (assanlt— guards of Met. Ey. Co., L. E. 8 Q. B. 36; 42 Ii. J. Q. omnibuses); Meyer «. Second Avenue B. 23 (false Imprisonment— passenger Ey. Co., 8 Bos w. 305 ( driver of tramway) ; not pay ing proper fare, given in custody) . Sandford v. Biglitli Avenue Ey. Co., 42 (c) Mackenzie v. McLeod, 10 Btng. 385. Pa. St. 365 (do.) ; Bayley v. Man. ShefE. & This has been held in cases of removal of persons from railroad trains, having a right thereon, by the servants of the company.— Bounds v. Del- 204 NEGLECT OF DUTIES REQUIKING OKDINAET CARE. orders or acted contrary to orders, if he was acting in the [158] course of his employment (d) ; nor even that he was acting illegally (e). It has also frequently been held that if the servant, al- though engaged all the while in the ordinary course of his Id) Limpua ». London Omnlbns Co., (e) See eame caee.i^er Oiompton, J. 1 H. & 0. 626; 32 L. J. Ex. 34 (omnibuses [infra]. racing); [iafrd]. aware, etc., R. Co., 64 N. Y. 129; Chicago, etc., E, Co. ». Bryan, 90 111. 126; Great Western K. Co. v. Miller, 19 Mich. 305. Or having no right thereon. — Pennsylvania Co. v. Toomey, 91 Pa. St. 256; Mobile & O. B. Co. ■». Seals, 100 Ala. 368; 13 So. Eep. 917; Texas & P. Ry. Co. V. Mather, 6 Tex. Civ. App. 87; 24 S. W. Rep. 79; Chicago, M. & St. P. E. Co. ». "West, 24 HI. App. 44; affirmed, 125 111. 320; 17 N. B. Rep. 788; Farber v. Missouri Pac. Ry. Co., 32 Mo. App. 378. Where excessive force is used or the removal, is effected at a time or place where Injury is likely to result. — Jackson v. Second Ave. R. Co., 47 N. Y. 274; Howe v. NewmarCh, 12 Allen, 49; Penn. E. Co.c. Vandiver, 42 Pa. St. 366; HofEman v. N. Y. Cent., etc., R. Co., 87 N. Y. 25 ; 41 Am. Rep. 337; Carter v. The Louisville, etc., Ry. Co., 98Ind. 552; Stone v. Chicago, etc., Ry. Co., 88 Wis. 98; 59 N. W. Eep. 457; Lucas v. Michigan Cent. E. Co., 98 Mich. 1; 66 N. W. Rep. 1039; Texas & P. Ry, Co. v. Hayden, 6 Tex. Civ. App. 745; 26 S. W. Rep. 331 ; Lang v. New York, etc., R. Co., 51 Hun, 603; 4 N. Y. S. Rep. 665; Haehl v. Wabash E. Co., 119 Mo. 325; 24 S. W. Rep. 737; Smith v. Louisville & N. R. Co., 96 Ky. 11; 23 S. W. Rep. 662; Kansas City, Ft. S. & 6. E. Co. v. Eelley, 36 Kan. 666; 14 Pac. Eep. 172. Where plaintiff while crossing the street stepped upon the platform of a car which obstructed the crossing and was pushed off by the driver and injured.— Shea v. Railroad Co., 62 N. Y. 180. Where a servant whose employment was to clean cars and keep per- sons out, kicked a boy off while the car was In motion, — Porter v. Bail- road Co., 41 la. 358. But where a brakeman who had authority to remove persons from the company's trains only upon the orders of the condoctor, did so without such orders, the company was held not liable, as the brakeman was not acting within the scope of his authority. — Marion v. Chicago, etc., E. Co., 59 la. 428, See Gulf, C. & S. P. Ry. Co. v. Moody, 3 Tex, Civ. App. 622; Texas & P. Ry. Co. v. Moody (Tex.), 23 S, W. Eep, 41. Where a discharged employe did not leave the premises as quickly as defendant's foreman desired, whereupon the foreman assaulted and in- jured him, it was held that the defendant was liable for the damage,— Rogahn v. Moore Mfg. & F. Co., 79 Wis. 573; 48 N. W. Rep. 669. MASTER AND SERVANT. 205 employment, does some wanton act, the master is not liable ; but the contrary has also been held in many cases. The test is, whether the wanton act was done in the course of the employment or not, although the judgments of the courts do not always apply the test accurately (f); and (/) Y^ixlerbalU v. Bichmond Tom- the court, did so npou the gronnd pike Oo., 2 N. Y. 479. (The captain of a that racing with the rival omnlbns was vessel, sailing in his proper course, not, as a matter of fact, in the course wantonly ran down a vessel. The mas- of the servant's duty. A servant while ter was held hot liable, no donbt be- driving his master's coach, got entan- cause it was no part of his bnslness to gted with plaintiff's, and struck plaln- rnn down the vessel, bnt It was his tifi's horses. It was held that if he Ordinary dnty to steer clear of it. He struck them wantonly the master was was distinctly pursuing his own private not liable; Croft v. Alison, 4 B. & Aid. ends.) Illinois Central B. Go. v. Dow- S90; and see McManns v. Crickett, 1 ney, 18 lU. 259 (defendant's servants East, 106; Seymour «. Greenwood, SOL. {wantonlji) ran a train of cars over the J. Ex. 327; 7 H. & N. 350; Stevens v. plalnttffi'steam, and the master was not Woodward, 6 Q. B. D. 315 (clerk to liable). Limpus v. London Omnibus solicitors went into lavatory meant only Co., supra, shows clearly the nature of for his employers and turned on the the true test. Mr. Justice Wight- tap); see Bayley v. Manchester By., man, who differed from the rest of sttpra (assault — acondnctor of anomni- (d) It is no defense to allege that the servant exceeded his orders or acted contrary to orders, tf he was acting in the course of his employ- ment. — Ochsenbein v. Shapley, 85 N. T. 214; Paulmier v. Brie R. Co., 34 N. J. L. 151; Toledo, etc., E. Co. v. Harmon, 47 111. 298; Philadelphia, etc., K. Co. V. Derby, 14 How. 468; Pitzsimmons v. Milveaukee, etc., Ey. Co., 98 Mich. 267; 57 N. W. Eep. 127; Harrlman ». Pittsburg, etc., R. Co., 45 Ohio St. 11; 12 N. B. Rep. 451; Mound City P. & C. Co. v. Con- Ion, 92 Mo. 221 ; 4 S. "W. Eep. 922 ; Smith v. New York, etc., R. Co., 78 Hun, 524; 29 N. Y. S. Eep. 540; Receivers Houston & T. C. Ry. Co. v. Stewart, (Tex.), 17 S. W. Eep. 33; Consolidated Ice Machine Co. v. Keifer, 134 111. 481; 25 N. B. Eep. 799; St. Louis, I. M. & S. Ry. Co. v. Hackett, 58 Ark. 381; 24 S. W. Eep. 881; Atchison, T. & S. F. E. Co. v. Randall, 40 Kan. 421; 19 Pac. Eep. 783; Chicago, R. I. & P. Ry. Co. v. Ferguson, 3 Colo. App. 4141 33 Pac. Rep. 684. In Heenrlch ». Pullman, etc., Co., U. S. Dist. Oregon, 23 Am. Law Reg. 459, it was laid down that a car company is responsible to a pas- senger injured by the negligence of Its porter in letting a pistol carried by him, fall upon the floor of the car, although he was carrying the pistol for a .passenger and was expressly forbidden to carry any baggage for passengers. (e) Nor even that he was acting illegally. — Reynolds v, Hanrahan, 100 Mass. 813; Voegell v. Plckel M. & G. Co., 49 Mo. App. 643;.Kolzem v. Broadway & S. A. R. Co., 20 N. Y. S. Eep. 700; 1 Misc. Eep. 148; Staples V. Schmid (B. I.), 26 Atl. Eep. 193. 206 NEGLECT OF DUTIES BEQUIKING ORDINARY CASE. [159] indeed, it must always be difficult to do so. If the act done is one which is plainly in the course of employ- ment, though the real motive is personal spite, the master is not exonerated, as it would be obviously unfair to the injured party to start such a defense upoti him, and, of the two innocent parties (the master and third party), it is more reasonable that the master should suffer (g). bus violently and wantonly dragged a Into horse jast as he was passing plain- man out of the omnibus tor being drunk ; tlS's wagon ; held, not liable) ; Lucas v. it was held that the act was in the Mason, L. B. 10 Bx. 251; 44 L. J. Mx. 146 course of the employment, and the (assault — chairman ordered persons master was liable) ; Ward v. Gen. Omni- making disturbance to be brought be- bns Co., 42 li. J. C. F. 266 (negligence — fore him ; held, not liable).— [Gregorys, question for the jury, whether an omni- Ohio Biyer B., 37 W, Va. 606; 16 S. E. bus conductor struck a blow with his Bep. 819 ; Jones v. St. Louis, etc., Co., 43 whip out of private spite or in further- Mo. App. 398.] ance of his master's business) ; Xorthv. (,g) And' see Shearman, ». 66, p. 85; Smith, 10 0. B. N. S. 672 (negligence— [pott, p. 209.] the defendant's groom struck his spurs ' (sr) The rule that a master is not liable for the willful acts of his ser- vant although done in the course of his employment (McCoy v. Mc- Kowen, 26 Miss. 487; Pritchard v. Keefer, 53 111. 117; Puryea v. Thomp- son, 6 Humph. 397), has been rejected by the best and latest American authorities. — Pittsburg, etc., E. Co. v. Donahue, 70 Pa. St, 119; Bams- den V. Boston, etc., E. Co., 104 Mass. 117; Goddard v. Grand Trunk R. Co., 57 Me. 202; Hawkins o. Eiley, 17 B. Mon. 101; Chicago, etc., E. Co. V. Dickson, 63 111. 161; Mott v. Consumers Ice Co., 73 N. Y. 543. See Cooley on Torts, p. 636 ; Pennsylvania Co. v. Toomey, 91 Pa. St. 256; Bounds o. Delaware, etc., E. Co., 64 N. Y. 129; 21 Am. Eep. 597; Dickson v. Waldron, 185 Ind. 507; 35 N. E. Eep. 1; "Winnegar ». Central Passenger By. Co., 85 Ky. 547; 4 S. W. Eep. 237; Kansas City, Ft. S. & G. E. Co. V. Kelley, 36 Kan. 666; 14 Pac. Eep. 172; Young o. Pennsylvania E. Co., 115 Pa. St. 112; 7 Atl. Eep. 741; Sohrubbe v. Con- nell, 69 Wis. 476; 34 N. W. Eep. 503; Clark v. Koehler, 46 Han, 536; Hissong V. Eichmond & D. E. Co., 91 Ala. 514; 8 So. Rep. 776; Gilllng- ham v: Ol^io Eiver E. Co., 36 W. Va. 588; 14 S. B. Eep. 243; North Chi- cago City Ey. Co. v. Gastka, 128 111. 613; 21 N. E. Rep. 522 ; Pittsburgh, C. & St. L. Ey. Co. V. Shields, 47 Ohio St. 387; 24 N. E. Eep. 668; Cobb V. Columbia & G. E. Co., 37 S. C. 194; 16 S. E. Eep. 878; Oakland City A. & I. Soc. V. Bingham, 4 Ind. App. 546; 31 N. E. Eep. 383; Fick v. Chi- cago & N. W. By. Co., 68 "Wis. 469; 32 N. W. Eep. 527. But ^he master is not liable for exemplary damages unless he ratifies the willful act of his servant.— Gulf, C. & S. F. R. Co. v. Moore, 69 Tex. 157; 6S. W. Rep. 631. Where a brakeman willfully dashed a jet of water upon 8 passenger MASTER AND SERVANT. 207 It should be borne in mind that where the act is inten- tional the question of negligence does not arise ( A) ; yet the (A) Ante, p. 3. who had refused to pay the brakeman for watering the passenger's hogs, the company was held liable. — Terre Hante, etc., E. Co. v. Jackson, 81 Ind. 19. So where a conductor willfully and contrary to orders detained cars upon the road whereby plaintiff was injured, — Weed v. Panama B. Co., 17 N. Y. 362. Where assaults have been committed upon passengers by the com- pany's servant, the company is liable. Where a railroad passenger missed Ms watch and when asked who he thought had it, replied " that fellow," pointing to the brakeman, whereupon the brakeman struck him In the face with a lantern and Injured him, the company was held liable. — Chicago, etc., B. Co. v. Flexman, 103111. s46; 42 Am. Bep. 33. So where a railroad conductor forcibly kissed a lady passenger, a ver- dict of $1,000 against the company was sustained (Croker o. Chicago, etc., B. Co., 36 Wis. 357 ; 17 Am. Bep. 504) . " The carrier," said the court, in Britton v. Atlanta, etc., By. Co., 88 N. C. 536; 43 Am. Eep. 748, " owes to the passenger the duty of protecting him from the violence and assaults of bis fellow-passengers or intruders, and will be held responsible for his own or his servant's neglect in this particular, when by the exercise of proper care the acts of violence might have been foreseen and prevented; and while not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready help sufficient to protect the passenger from assaults from every quarter which might reasonably be expected to occur, under the circum- stances of the case and the condition of the parties. — See Stewart v. Brooklyn, etc., B. Co., 90 N. T. 588; 43 Am. Eep. 185; Dillingham v. Anthony, 73 Tex. 47; 11 S. W. Eep. 139; Galveston, H. & S. A. Ey. Co. V. McMonigal (Tex. Giv. App.), 25 S. W. Eep. 341; Dwinnelle ». New York, etc., B. Co., 120 N. Y. 117; 24N. E. Eep. 319. But it is not responsible for assaults by its servants upon those who are not passengers. — Porter v. Eailroad Co., 41 la. 358; Gilliams v. South, etc., Ala. E. Co., 70 Ala. 268. Nor for the acts of mobs (Pennsylvania Ey. Co. v. Hinds, 53 Pa. St. 512; Kelly o. Shelby R. Co. (Ky. App.), 22 S. W. Eep. 446), and it has been held that it is not liable on account of insulting conduct of strangers at a railway station toward a female passenger. — Batton and Wife V. South, etc., Ala. R. Co., 77 Ala. 691 ; 22 Cent. Law Jour. 467, note. Where a master, in sending his servant to take personal property, instructs him to neither assault any one nor violate the law, he is responsible for an assault and battery by the servant. — McClung v. Dearborne, 134 Pa. St. 396; 19 Atl. Eep. 698; 26 W. N. C. 42. 208 NEGLECT OF DUTIES REQUlRINa OBDINAEY CARE. master may be liable in an action of tort (other than negli- gence) if such intentional act was within the scope of the employment. Generally, of course, if the servant did an intentional wrong it would be without the scope of his em- ployment, and the master would not be liable. Although the general and proper rule is that the master is not liable for the willful acts of his servants unless they are within the course of his employment (Mulligan v. New Tork & B. B. By. Co., 129 N. Y. 506; 29 N. E. Bep. 952; Texas & P. By. Co. v. Black, 87 Tex. 160; 27 S. W. Bep. 118; Alabama G. S. B. Co. v. Harris, 71 Miss. 74; 14 So. Bep. 263; Smiths. Memphis & A. C. P. Co. (Tenn.), 1 S. W. Bep. 104), there are several ill-considered cases to the contrary. — Mallach v. Bidley, 24 Abb. N. C. 172; 9 N. T. S. Bep. 922; Fortune c. Trainor, 19 N. Y. S. Bep. 698; Swinaston v. Le Boutillier, 28 N. Y. S. Bep. 53; 81 Abb. N. C. 281; 7 Misc. Bep. 639. In Perry v. House of Befuge, (63 Md. 20), It was held that a honse of refuge being a corporation instituted for charitable purposes, cannot be made liable in an action for damages for an assault committed by one of its officers on an Inmate of the institution. The cases referred to to support this ruling are McDonald v, Massachusetts General Hospital, 120 Mass. 482, and Feoffees of Heriot's Hospital v. Boss, 2 Clark and Finnelly, 607. In McDonald v. Mass. General Hospital it was held that a corporation deriving its funds mainly from public and private charity, and holding them in trust for the object of sustaining the hospital, without the expec- tation or right on the part of those immediately interested in the corpora- tion to receive compensation for their own bene&t, is a public charitable institution; and where it has exercised due care in the selection of its agents, it is not liable in an action for injury caused by their negligence. In the case of Feoffees of Heriot's Hospital v. Boss, in the House of Iiordsi it was decided that "if charity trustees are guilty of a breach of trust, the person thereby injured has no right to be indemnified by damages out of the trust fflnd." But see Glavin v. B. I. Hospital, 12 B. I. 411 ; 34 Am. Bep. 676, where it was held that one who sustains an injury at a public hospital from unskillful surgical treatment by an unpaid attending surgeon may maintain an action against the hospital therefor, although the hospital is a public charity supported by trust funds and the plaintiff paid nothing but a small amount for board and attendance. It is a general rule that charitable organizations are not responsible for the malicious or negligent acts of their servants Williams w. Louis- ville, I. S. of Beform, 95 Ky. 251; 24 S. W. Bep. 1066. See Haas ». Mis- sionary Soc. of the Most Holy Bedeemer, 26 N. Y. S. Bep. 868 ; 6 Misc. Bep. 281; Union Pac. By. Co. v. Artist, 60 Fed. Bep. 365; 9 C. C. A. 14; Schrubbe v. Connell, 69 Wis. 476; 34 N. W. Bep. 603; Bighmy v. Union P. By. Co. (Iowa), 61 N. W. Bep. 1056; 40 C. L. J. 208. MASTER AND SERVANT — TRESPASS. 209 It is somewhat doubtful what is the meaning of an act being " wanton." If all that is meant is that the act is " very negligent " {i) the master is liable for negligence, if it is within the scope of the employment ; and if what is meant is that it is *' intentional," then the master is liable for tort (other than negligence), if it is within the scope of the employment. If the act is not within the scope of the employment the master is not liable. So that the master is liable in «ome form of action for all wrongful acts done within the scope of the employment, but if the act is inten- tional and within the scope of the employment, the form of the action is tort (other than negligence), but if it is unintentional, i. e., negligence, the form of the action is nea:ligence. A difficulty always arises in determining whether the act [160] done was in the course of employment, for the mere fact of the negligence is itself an indication of some vari- ation in the [161] course of employment, and the line between such variation and an absolute departure must often be very fine {Jc). It is said that " a master is not bound to anticipate a perfectly gratuitous trespass on the part of a servant, such, for example, as his entering without necessity upon a stranger's land. No presumption of authority arises from the fact of the act having been done for the master's benefit or from his silence in regard to it (Z). The fact that the act done was for the benefit of the master, how- ever, must be some evidence of the act being done in the course of the employment {m), and if an illegal act be [162] within the scope of the servant's probable author- (i) See Limpas e. London Omnlbns citing Chnrch v. Manefled, 20 Conn. 3S1. Oo., supra (" wantonly, caielesslj, Teck- See, also, Harris i>. Nicholas, 5 Manf. lessly, and wlllf ally "}■ 483; Lyon v. MarUn, 8 Ad. & E. 512 (£) Faryear v. Thompson, S Hnmph. (driving cattle Into master's close, and 397, cited In Shearman, s. 66, note 3, them distraining), where an overseer beat a slave and killed (m) See Llmpns v. General Omul- blm, intending to do so ; [atae, p. 201]. bns Co., ante, p. 201. (2) Shearman on Nfgllgence, s.- 62; U 210 NEGLECT OP DUTIES EEQTJIRING ORDINARY CARE. ity, and be done for the master's benefit, the master would be held responsible (n). Questions frequently arise as to whether the servant of the defendant was, at the time when the injury was caused, still in the defendant's service (o). (k) AU.-Gen. «. Siddon, 10. & J. 220. servant (a lighterman) to remove a boat. — [nilnolB Cent. E. Co. v. EosB, 81 111. Held, that he was still acting as detend- App. 170.] ant's servant (overruling Lamb v, Palk, (o) Page ». Defirles, 7 B. & S. 137. A 9 0. &P. 621); [»»/ro]. foreman ol a wharf told defendant's (o) In De Voino. Michigan Lumber Co., (64 Wis. 616), A. let his team, sleigh, and driver to B. to haul logs, and by the direction of B.'s fore- man the driver went to haul some hay. Under the direction of a guide furnished by the foreman, the driver drove over some snow-covered ice on a river, and the horses broke through and were drowned. It was held that B. was liable for the value of the horses. Cassoday, J., in delivering the opinion of the court, said: "The acci- dent did not occur by reason of any negligence in the mere driving or handling the team, but in obeying the directions given by the foreman and guide, and driving the team into a dangerous place without knowing it to be dangerous. If the driver was negligent at all, it was in obeying directions and driving out upon the ice for the flrst time without first testing its strength. If the guide was negligent in walking behind the sled instead of going ahead of the team and testing the ice, yet, as the service in which they were then engaged was not such as was contem- plated in the contract of hire, he was not a co-employe with the driver in such a sense as to relieve the defendant from liability on account of such negligence. — Eailroad Co. v. Fort, 17 Wall. 653 ; Mann v. Oriental P. W., 11 R. I. 152; Lalor v. Eailroad Co., 52 111. 401. Was the driver the agent of the plaintiff in the act of obeying the directions of the defendant's fore- man and guide at a (ilace distant from the camp, and in. a kind of work not contemplated by the contract of hire? It seems to us that he was not. Of course the driver was selected by the plaintiff to drive the team in performing the work contemplated in the contract of hire. Had the injury occurred by reason of any negligence or incompetency of the driver while engaged in the work or service so contemplated by the con- tract of hire, then the loss would have fallen upon the plaintiff; for, by selecting him to drive the team, he bad taken upon himself the responsi- bility of the requisite care and competency of the person so selected in doing the work he had contracted to have him do. — Quarman v. Burnett, 6 Mees.& W. 499; Jones v. Mayor, etc., 14 Q. B. Div. 890; Huff v. Ford, 126 Mass. 24; Joslin v. Grand Bapids Imp. Co., 50 Mich. 516. And yet while engaged in such contemplated work, had the team been injured solely by reason of having been driven by the careless direction of the MASTEB AND SERVANT. 211 The master is liable for the negligence of Under-servants employed by his servant by his authority, but this authority defendant into some place of danger, not obvions to the senses and unknown to the driver, there would be no question of the defendant's KabiUty. — Indermanr v. Dames, L. K. 2 C. P. 311. In such contem- plated service the defendant was still under obligation to exercise reason- able diligence In providing a suitable place for the team to be driven, or, in other words, not to carelessly cause the team to be driven into a place of concealed danger unknown to the driver. — Indermaur v. Dames, L. R. 2 C. P. 311; Coombs v. New Bedford C. Co., 102 Mass. 583, 584; Swoboda v. Ward, 40 Mich. 423 ; Paiihurst v. Johnson, 60 Mich. 70. In case of injury in such contemplated service, the mere fact that the driver wa3 In a limited sense the agent of the plaintiff, as indicated, would not take away the liability of the defendant, under whose orders and control he was acting at the time, for negligently inducing him to drive into a place of concealed danger. — -Bo&rke v. White M. C. Co., 2 C. P. Div. 205. But the case at bar is more favorable for the plaintiff than any supposed. Here the injury occurred when neither the team nor the driver were engaged in the work contemplated in the contract of hire. They were both, however, doing service for the defendant under the directions of its foreman and the guide selected by him. The team was drowned solely by reason of being driven by such direction into a place of con- cealed danger unknown to the driver. Had not the team at the time of the injury been accompanied and driven by the driver selected and employed by the plaintifE, there could be no question but what such diverted use of the team would have been a conversion within all the authorities. — Wheelock r. Wheelwright, 5 Mass. 104; Homer v. Thwing, 3 Pick. 492; Hall v. Corcoran, 107 Mass. 251; Woodman v.. Hubbard, 25 N. H. 67; Hart v. Skinner, 16 Vt. 138. The same rule has been applied to the unauthorized use of slaves. — Horsely v. Branch, 1 Humph. 199 ; Scmggs V. Davis, 5 Sneed, 261 ; Moseley v. Wilkinson,;24 Ala. 411 ; Fail v. McArthur, 31 Ih. 26; Spencer v. Pilcher, 8 Leigh, 566. For the loss during such diversion or misuse the defendant would have been abso- lutely liable, even though it occurred by reason of the fault of the horses or a mere accident. — Lucas v. Trumbull, 15 Gray, 306; Perham ». Coney, 117 Mass. 102 ; Fisher v. Kyle, 27 Mich, 454 ; Lane v. Cameron, 38 Wis. 603. Does the mere fact that the driver consented to the diversion of employment, and was in the act of driving the team when the accident occurred, relieve the defendant from the liability which would other- wise have existed? We must answer this question in the negative. There is no claim that he participated in, or was even present at the time of making, the contract of hire; ilor that he had any authority to modify that contract or make a new one. The case is quite similar in principle to Crocker o. Gulllfer (44 Maine, 491), where one of the drivers had a con- ditional interest in the horses and consented to the diversion; but it was 212 NEGLKCT OF DUTIES REQUIRING ORDINARY CARE. may sometimes arise by implication, and a question fre- quently arises as to whether such authority can be implied or not (p). Where the management of anything is conducted by [163] another other than the owner, the owner is prima facie responsible. The owner may rebut this presumption by [164] showing that the person engaged in the management was not his servant (q), but was the servant of somebody (p) Simmons v. Monier, 29 Barb. 119 another man drive bis master's cart, (servant employed another man to throw master held liable ) ; [post, p. 236] snow off a faonse, master held liable): (g) Bryne «. Boadle, 2 H. &0. 721; 33 Booth V. Mister, 7 O. & P. 66 (servant let L. J. Ex. 13 ; Scott v. London Dock Co., beld that the defendants were liable for their value, notwithstanding they were accidentally destroyed by fire without the neglect or fault of any one." Where a driver deviates somewhat from the usual route on his own account and leaves the team unhitched so that they run away injuring plaintiff the master is liable. — Bitche v. Waller, 63 Conn. 155; 28 Atl. Bep. 29. So where a driver uses a team without special permission (Loving- ston V. Banchens, 34 III. App. 644), or endeavors to pass a vehicle in front, at the request of the passenger driven by him (Richardson v. Van Ness, 63 Hun, 267; 6 N. Y_S. Rep. 618). See Hickey v. Merchants' & M. T. Co., 152 Mass. 89 ; 24 N. E. Bep. 860. But where the facts show the acts of the servant to be outside his regular employment the master is not liable. See Dells v. Stollenwerk, 78 Wi?. 339; 47 N. W. Rep. 431; Thorp i;. Minor, 109 N. C. 152; 13 S. B. Bep. 702; Chicago City By. Co. v. Mogk, 44 III. App. 17. (S) " The doctrine of this case (Puryear v. Thompson, 5 Humph. 397), ignores the principle that if the master sets In motion an agency that pro- duces a wrong he is liable for all the consequences, and if the doctrine was established, a master could never be held chargeable when the act was in violation of his prders." — Wood on Master and Servant, p. 679. 0?) The Mayor v. Bailey, 2 Den. 433 ; Suydam v. Moore, 8 Barb. 358 ; Wichtrecht v. I'assnacht, 17 La. Ann. 166. The author intended to cite the case of Althorf v. Wolfe, 22 N. Y. 355, instead of Simmons v, Monier, 29 Barb. 419, though the latter illus-^ trates the same principle. In that case it was held that where a servant employed to work upon a farm by the month directs his son, an infant under his control, to do an act upon the farm which is within the scope of the servant's employment, such act will be considered the act of the servant, and it another person sustains damage by the negligent manner in which the act was performed, the master is liable. MASTER AND SERVANT — CONTRACTOR. 213 [165] else (r). This may of course appear either from the plaintiff's own case or the defendant's, and may either be made to appear from direct evidence or from evidence us to the usual course of business. Thus, where it is the usual course of business to employ a contractor to do cer- tain work, no presumption arises that the work is being done by the servants of the owner of the property (s). The question who is the master of a person engaged in doing the act is one of frequent di5S<5ulty (t), and the difficulty does not seem to be removed by saying that he is the master whose will the servant represents (m). Where a master allows his servant to be hired by an- other, he remains liable to the hirer (a;) and to strangers 3 H. & C. 696; 34 L. J. Ex. 220. Also in cases of cab driver and proprietor, see Fowler v. Look, 41 L. J. C. P. 99 ; L. R. 7 C. P. 272; King u. Spurr, L. E. 8Q.B. 104; Venablea v. Smith, L. R. 2 Q. B. D. 279; 46 L. J. Q. B. 470; in cases of ship- owners and captains, see Steel v. Lester, 47 L. J. O. P. 43; L. E. 3 0. P. D. 121; Laugher «. Forrester, 5 B. & O. 547 (owner of carriage hired horses from stable-keeper who provided driver);^ Brady V. Giles, 1 M. & Sob. 404 (qaestlon for the jury whose servant the driver is) ; qucere as to authority of this case, see Macdonnell on Master and Servant, p. 269 ; Qaaimaii v. Burnett, 6 M. & W. 499 (owner of carriage jobbing horses not liable for acts of driver, unless he orders him to drive In a particular man- ner, see M'Laughlln v. Prior, 4 lit. & 6. 48) ; Dayrell v. Tyier, 28 L. J. Q. B. 52 ; B. B.&E. 899 (lessee of ferry hired tag and crevv of defendant, plaintiff contracted with lessee,crew negligent, held defend- ant liable, see Fenton v. Dublin Steam Packet Co., 8 Ad. & E. S35). It may here be observed that If the plaintiff chooses to accept compensation from the driver of the vehicle, under 6 & 7 Vict., c. 86, B. 28, he cannot afterwards recover against the driver's employers; Wright V. London Omnibus Co., L. B. 2 Q. B. D. 279. (r) Shields v. Edinburgh Ey. Co., ' Hay, 254 (defendant lent a van to a per- son who put his own horse in, and drove by his own servant, held the de- fendants, although owners, were not liable). (s) Welfare v. London & Brighton Ey. Co., L. E. 4 Q. B. 693 ; 38 L. J. Q. B. 241. (<) Lucy V. Ingram, 6 M. & W. 302; Genl. Steam Nav. Co. v, British and Colonial Steam Nav. Co., L. E. 4 Ex. Ch. 238 (pilot compalsorily taken on board, not servant) ; Corbin v. American Mills, 27 Conn. 274 (plaintiff contracted with defendant to build a dam with stone -Which he obtained as part payment of another contract to remove the stone by blasting. He and his men were to be paid by the day, the defendant furnish- ing the powder for blasting and super- intending the building of the dam, but having no control over the blasting, held, not a servant) ; Stevens v. Squires, 6 K. Y. 435 (B. sent his porter to remove a box from A.'b store, which A. had sold to him. A. gave permission to remove it; held, porter servant of B. not A.); Merrick v. Brainord, 38 Barb, 574 (car- rier employed a tow-boat, persons in charge negligent, held carrier liable) ; Murphy v. Caralli, 3 H. & C. 162 (ware- housemen having full control directed defendant's servants to pile bale of cotton, held, servants of warehousemen only). (») See Shearman, b. 73. 214 NEGLECT OF DUTIES REQUIRING ORDINARY CAKE. (jy), for negligence of such servant; and even where that other himself selects the servants, although the master might not be liable for mere incompetency, yet he would be so for iiegiigenoe {z). If the master abandons all con- trol over the servant, and all right to discharge him, and these rights are taken by the hirer, of course the servant becomes the servant of the hirer. In order to render a person liable for the acts of another employed by him to do a lawful act, the relation of master [166] and servant must exist (a). Where such relation does not exist (but the person employed is what is called a " contractor") it is presumed that the person employed was einployed to do the act in a reasonable and careful manner, and if he does not do so, his employer is not answerable (6). (X) Holmes v. Onion, 2 C. B. N. S, 790 Angus & Go. v. Dalton, 48 L. J. Q. B. (thatching) 229 ; L. B. 1 Q. B. D . 162 ; 6 App. Gas. 710 ; ^y) Dalyell v. Tryer, El. B. & El. 899 Hughes v. PerclTal, 8 App. Gas. Hi; (crew hired, paid, and controlled by de- \infra\. fendant, steamer let oat to H., held, (5) Batler v, Hnnter, 7 H. & N. 826; defendant liable). 31 li. J. Ex. 2U (owner of honse and (s) Holmes v. Onion, supra. builder). See remarks of Lord Black- (a) The case of employing another to burn on this case in Hnghes v. Fercival„ do an act from which injury must flow, supra. Peachy i>. Rowland, 13 G. B. 182 unless care be taken. Is considered In (man employed to make a drain; but see Oh. m.; Bower v. Feat, L. B. 1 Q. B. D. Sadler v. Henloc^, i El. & Bl. 970; 24 L. 321; 49 L. J. Q. B. 446; Tarirv. Ashton, J. Q. B. 138); Guthbertson v. Parsons, 12 L. B. I. Q. B. D. 314; 49 L. J. Q. Bi260; O. B. 304 (commissioners employed (jf) Ames V. Jordan, 71 Me. 510; 36 Am. Bep. 362; Crockett v. Calvert, 8 Ind.,127; Joslin v. Grand Bapids Ice Co., 60 Mich. 616 ; 46 Am. Bep. 64 ; Donovan v. Laing, 4 Beports, 317 (1893); 1 Q. B. 629; Illinois Cent. B. Co. p. King, 69 Miss. 852; 13 So. Bep. 824. (a) Pickens v. Diecker, 21 Ohio St 212; Pawlet v. Eutland, etc., B. Co., 28 Vt. 297; McGuire v. Grant, 25 N. J. L. 257; Blake v. Ferris, 5 N. T. 48; Bathe v. Decatur Co. Ag. Soc, 73 la. 11; 34 N. W. Bep. 484; An- drews V. Boedecker, 27 111. App. 30; affirmed, 126 111. 606; 18 N. E. Bep. 651; Sawyer v. Martins, 25 III. App. 521; Marsh v. Hand, 120 N. T. 31S; 24 N. E. Bep. 463; Muse v. Stem, 82 Va. 33; Southern Ex. Co. v. Brown, G7 Miss. 260; 7 So. Bep. 818; 8 So. Bep. 426; Campbell o. Trimble, 76 Tex. 270; 12 S. W. Bep. 863; James v. Mnehleback, 34 Mo. App. 512; Wyllle V. Palmer, 63 Hun, 8; 17 N. T. S. Bep. 434; "Wells v. Washington Market Co., 19 D. C. 385. MASTEK AND SERVANT — CONTRACTOR. 215 If the master himself interferes with the work he may render himself liable . The owner of premises employed a Bteam tug, owners held not liable); (snrveyor of highways employed an- Brown v. Accilngton Cotton Co., 3 H. other person and his men, and did not & C. 611 (bnlldlng erected by contract. Interfere ; held, they were not servants owner not interfering) ; Taylors. Green- of defendant), halgh, L. B. 9 Q. B. 487 ; 43 L. J. Q. B. 168 ' (6) " When the work is not in itself necessarily a nuisance, and the injury results from the negligence of such contractor or his servants in the executiourof it, the contractor alone is liable, unless the owner is in default in employing an unskillful or improper person as the contrac- tor." — Wharton on Negligence, § 818. See Norwalk Gaslight- Co. c. Borough of Norwalk, ,63 Conn. 49S; 28 Atl. Bep. 32; Svreeny v. Murphy, 32 La. Ann. 628; Smith v. Simmons, 108 Pa. St. 32; CqfE v. Newark, etc., E. Co., 35 N. J. L. 17; Wood », Indian School District, 44 la. 27; Pawlet V. Eutland, etc., E. Co., 28 Vt. 297;' Coomes v. Houghton, 102 Mass. 211 ; King V. New York, etc., R. Co., 66 N. Y. 182; Knoxville Iron Co. v. Dob- son, 7 Lea, 367; Martin v. Tribune Ass., 30 Hun, 391; Davie ©.'Levy, 39 La. Ann. 551; 2 So. Eep. 395; Harrison v. Kiser, 79 Ga. 588; 4 S. E. Eep. 320; Brown v. McLeish, 71 la. 381; 32 N. W. Eep. 385; Maltbie ». Bolting, 26 N. Y. S. Eep. 903; 6 Misc. Eep. 339; Mahon v. Burns, 29 N. Y. S. Eep. 682; 9 Misc. Rep. 223; Charlebois v. Gogebic & M. E. Co., 91 Mich. 59; 51 N. W. Rep. 812; Bibb v. Norfolk & W. E. Co., 87 Va. 711 ; 14 S. E. Rep. 163; Chartiers Vajley Gas Co. v. Waters, 123 Pa. St. 220; 23 W. N. C. 175; 16 Atl. Rep. 423; Eoemer v. Striker, 21 N. Y. S. Rep. 1090; 2 Misc. Eep. 573. See cases collated in 41 C. L. J. 6. As where an injury is caused by the falling of a wall (Engel v. Eureka Club, 137 N. Y. 100; 32 N. E. Eep. 1062), or the laying of gas mains, (Chartiers Valley Gas Co. o. Lynch, 118 Pa. St. 362; 12 Atl. Eep. 435), or the unnecessary laying of loose rails in building a street railway (Fulton County St. E. Co. v. McConnell, 87 Ga. 766; 13 S. E. Eep. 828), or the dropping of bricks and mortar while erecting a building on ad- joining premises (Pye v. Faxon, 1S6 Mass. 471; 31 N. B. Eep. 640), or the negligent running of a locomotive engine). Miller v. Minnesota & N. W. Ry. Co., 76 la. 655; 39 N. W. Rep. 188; Wabash, St. L. & P. Ey. Co. V. Farver, 111 Ind. 195; 12 N. B. Eep. 596, or the stretching of canvas so that its flapping frightens horses in the street, — McCann v. Kings Co. El. E. Co., 19 N. Y. S. Rep. 668. A person carrying on the business of slating roofs was employed to make repairs on the roof of a church, and while his men were so engaged in making such repairs they carelessly allowed a ladder in use by them to be blown dovm by the wind, it fell upon plaintiff and injured him. In a suit against the parish it was held that the slater was an independent contractor and the defendant not liable. — McCarthy v. Portland Second Parish, 71 Me. 318; 36 Am. Rep. 320. 216 NEGLECT OF DUTIES BEQUIBINO OKDINABY CABE. person to make a drain to the common sewer, and the workmen placed gravel on the highway to the injury of the A. contracted to have B. cnt timber on A.'s land at a certain price per foot and deliver it at the month of a river, using A.'s dams in driving the logs if he chose. By B.'s unreasonable use of ^.'s dams C.'s lands were flowed, but A. had nothing to do with cutting or driving the logs. It was held that A. was not liable for C.'s injury. — Carter v. Berlin Mills, fi8 N. H. 52; 42 Am. Bep. 672. B. nndertook to repair the cornice of defendant's hotel. The means to be employed were left entirely to the former. He so negligently pre- pared his scafEold that in a high wind a plank fell and injured plaintiff. On the trial the plaintiff was dismissed on the ground that defendant was not liable for the negligence of B. as he was a contractor and not an employe. This was held not error. — Hexamqr v. Webb, 101 N. Y. 377; 4 N. E. Bep. 765. But where the owner exercises control over the mode of doing the work (Cincinnati v. Stone, 5 Ohio St. 38; Eimball v. Cushman, 103 Mass. 194; Chicago v. Dermody, 61 111. 431 ; Eaton v. Eailroad Co., 69 Me. 520 ; Clapp V. Eemp, 122 Mass. 481 ; Lancaster Ave. I. Co. v. Bhoads, 116 Pa. St. 377; 9 Atl. Bep. 852; Larson o. Metropolitan St. By. Co., 110 Mo. 234; 19 S. W. Bep. 416; Savannah & W. E. Co. ■». Phillips (Ga.;, 17 S. E. Bep. 82; Kingston & B. E. Co. v. Campbell, 20 Can. S. C. E. 606; Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495; 28 Atl. Bep. 32 (Mumby e. Bowden, 25 Ela. 454 ; 6 So. Bep. 463) ; or reserves the power to remove servants (Arctic Ins. Co. v. Austin, 69 N. Y. 470) ; though this is not conclusive (Cuff v. Newark, etc., E. Co., 35 N. J. L. 17) ; or performs part of the work (Griffiths v. Wolfram, 22 Minn. 186), he will in general be liable. This rule applies where the work is in the hands of a sub-contractor (St. Louis & C. By, Co. o. Drennan, 26 111. App. 263 ; Hart v. Eyan, 6 N. Y. S. Eep. 921); or of > person employed by an employe ; provided the master retains control. — Bucki v. Cone, 26 Fla. 1; 6 So. Eep. 160; Mangan v. I'oley, 33 Mo. App. 250. Where a mining company contracted for the removal of ore and re- served to itself such arrangements as were necessary for the protection of workmen, it was held liable for such injuries as happened to the em- ployes of the contractors without the fault of the employes. — Lake Superior Iron Co. v. Ericksbn, 39 Mich. 492. And where a contractor agreed with the owners of a mine to do cer- tain work therein, the owners engaging to furnish and put up such props and supports for the roof of the mine as would render the miners secure, whenever notified by the contractor, it was held that although such notice from the contractor might not have been received by the owners, the latter, if they had actual knowledge that such supports were neces- sary, became liable in damages to an employe of the contractor who, with- MASTER AND SERVANT — CONTRACTOR. 217 plaintiff. The owner had been informed of the danger and had promised to remove the heap. The person em- ont negligence on Ms part, bad been injnred while at work in tbe mine throngh tbe want of such supports in the roof. — Kelly v. Howell, 4l Ohio St. 438, Defendant, a railway corporation, made a contract with A. whereby he was to have the entire charge in defendant's freight yard of the mak- ing up of freight trains, etc., to be paid a certain sum per ton of freight and for each car hauled from the yard. Defendant's superintendent was authorized \a see that the work was done satisfactorily, and if it were not defendant could terminate the contract at twenty-four hours' notice. Tbe men employed in the yard were paid by A. B. sued defendant for injuries received through the negligence of train men in tbe employ of A. It was held that A. was tbe servant of defendants and not an inde- pendent contractor. — Speed o. Atlantic, etc., E. Co., 71 Mo. 303. But a right reserved in a contract on tbe part of a railroad company as to the quantity of work to be done or the condition of the work when completed is not a right to control the work or manner of doing It. — Hughes V. Cincinnati, etc., R. C, 39 Ohio St. 461. And that the work is under the supervision of an architect selected by tbe owner does not render the latter liable for the negligence of the con- tractor. — Robinson v. Webb, 11 Bush, 464. A contractor was employed to make certain repairs on a'scbool-bouse under the directions of a superintendent named by tbe district. It was expressly agreed that tbe contractor should not enter upon tbe work until the school was dismissed for the season. Tbe superintendent chosen by the district was the architect of the contemplated improve- ments, and was authorized only to direct the contractor as to the manner in which the work was to be executed. The contractor, by permission of tbe superintendent, began the work before the school was dismissed, and performed it so negligently that one of tbe school children was injnred in consequence. It appeared that two of the school board bad visited tbe school-bouse after the work had been begun, but did not inter- fere or direct it to be stopped. In an action by tbe injured child against tbe school district to recover damages for the injury done him, it was held that, as the contractor was at the time of tbe accident exercising an independent employment, the school district was not liable for his negli- gence. — School District of City of Erie o. Fuess, 98 Pa. St. 600. The fact that the owner furnishes material for the work does not affect his liability. Where B. agreed for a specified sum to dig a ditch and lay pipe for A., A. to famish the pipe and boxing, but to have nothing further to do with the work, It was held that B. was an independent contractor, for whose negligence in leaving the ditch unprotected whereby C. sustained an injury, A. was not responsible. — Smith n. Simmons, 103 Fa. St. 32. 218 NEGLECT OF DUTIES EEQUIEING OEDINAKT CARE. ployed paid a man for removing some of the gravel and charged the owner for such payment on account. It was And when the contract is silent as to the node of doing the work (Aston V. Nolan, 63 Cal. 269), or the owner gives up all control to the contractor (Fuller v. Citizens' Bank, 15 Fed. Rep. 875), the former is not liable for the negligent acts of the latter. But when an employer retains control over the mode and manner of doing a specified portion of the work only, and an injury results to a third person from the doing of some other portions of the work, the contractor alone is liable. — Hughes o. Railway Co., 39 Ohio St, 461. And so where the work is done according to specified plans and subject to the inspection of the owner's engineer, the contractor alone is liable. — Casement v. Brown, 148 U. S. 616; 13 S. Ct. Rep. 672. Municipal Corporations. — If the work is of such a character that in the performance of it injury is likely to result to others, or the work would of itself constitute a nuisance, the employer Is liable (Robbins v. Chicago, 4 Wall. 657; Clark v. Fry, 8 Ohio St. 358 ; Brusso v. Buffalo, 90 N. Y. 679 ; Water Co. v. Ware, 16 Wall. 666, 676; Dressell v. Kingston, 32 Hun, 633), though he exercises no control over the work. The rule applies as well to municipal corporations. A city employed a contractor to grade a street. He left a cut intended for a culvert unlighted, an^ plaintiff not being negligent fell in on a dark night and was Injured. It was held that an action against the city was main- tainable, although it had no control of the workmen, and in its agree- ment with the contractor stipulated that he should be liable for accidents occasioned by his negligence. — Wilson «. City of Wheeling, 19 W. Va. 323 ; 42 Am. Rep . 780. See Bowen v. City of Huntington, 36 W. Va. 682 ; 14 S. E. Rep. 217; Hepburn v. City of Philadelphia, 149 Pa. St. 336; 24 Atl. Rep. 279; 30 W.N. C. 190; KoUocko. City of Madison, 84 Wis. 468; 64 N. W. Rep. 726; City of Birmingham v. Lewis, (Ala.), 9 So. Rep. 243. But the city is not responsible where the Independent contractor is not performing or neglecting a municipal duty. — Susquehanna Depot v. Simmons, 112 Pa. St. 384: 66 Am. Rep. 317; City of Halifax v. Lordly, 20 Can. S. C. R. 506. Where trustees of water-works in a city authorized and directed the digging of trenches in the streets for the purpose of laying water pipes in pursuance of a previous ordinance of council, and it was made the duty of the superintendent to cause such trenches to be dug and mains laid, the city was held liable for his negligent acts in doing the work causing an injury, though the trustees individually while the work was being done notified the superintendent that they would have nothing further to do with the work.— City of Ironton v. Kelly, 38 Ohio St. 50- And where a city contracted for the construction of a cistern in a street, and before the cistern was completed a horse fell into it and was killed for want of sufficient protection, it was held that the city was MASTER AND SERVANT — CONTRACTOR. 219 held that the owner was liable, on the ground that he had himself interfered with the work (c). Where the employer of the contractor has no duties, but (c) Burgess v. Gray, 1 0. B. 578. ' liable for the loss of the horse, although it did not reserve or exercise any contaol over the manner of doing the work except to see that it was done according to the specifications which were part of the contract. — Circleville v. Nending, 41 Ohio St. 465. Where a city contracted in writing with A. for the erection of water- works, and the contract was assigned by A. to B., and by B. to C, it was held that the city was liable for the death of 'a party occasioned by the negligence of C.'s employes while thay were blasting in trenches dug in the streets for water pipes, though the city had no control over the work of C.'s employes. — City of Logansport v. Dick, 70 Ind. 65; 36 Am. Bep. 166. The owner can not escape liability for maintaining a nuisance on his premises by putting the work in the hands of a contractor. — Congreve v. Smith, 18 N. Y. 79; Water Co. v. Ware, 16 Wall. 566; Silvers v. Nord- linger, 30 Ind. 53 ; Sturges v. Society, etc.. Theological Ed. at Cambridge, 130 Mass. 414 ; Gorham v. Gross, 125 Mass. 232. Unless such nuisance is imputable to the negligence of the contrac- tor. — CufE V. Newark, etc., E. Co., 35 N. J. L. 17; Kellogg v, Payne, 21 la. 675. Nor can a municipality avoid responsibility for dangerous streets- by placing the work of improving them under the control of contractors. — City of Sterling v. Schiffmacher, 47 111. App. 141; City of Beatrice v. Eeid, 41 Neb. 214; 69 N. W. Kep. 770; City of Abilene v. Cowperthwait, 52 Kan. 324 ; 34 Pac. Rep. 795. Especially where it retains supervision . — Kulwicki V. Munro, 95 Mich. 28; 64 N. W. Kep. 703. Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful act of the contractor or his workmen, the rule Is that the employer is not liable ; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agreed and was authorized to do, the person who employs the con- tractor and authorizes him to do those acts is equally liable to the party injured. — Water Company v. Ware, 16 Wall. 676; Bobbins v. Chicago, 4 Wall. 679; Chicago v. Bobbins, 2 Black, 418. The owner is liable for a continuing nuisance. — Boswell v. Laird, 8 Cal. 49; Osborn v. Union Ferry Co., 63 N. Y. 629. Taking down the walls of a burned building is not the abatement of a nuisance nor the commission of a nuisance, and if the owner thereof employ a contractor to do the work, he is not liable for such, contractor's negligent performance of it. — Dillon v. Hunt, 82 Mo. 150. 220 NEGLKCT OP. DUTIES KEQUIEING OBDINAKr CABB. the contractor has, the contractor is liable ; but whiere the employer has a duty towards the plaintiff he cannot dele- gate its performance to a third party (tZ). A frequent illustration of this is found 'in case of hiring of carriages, •where it is a question wh^.ther the driverls the servant of the [167] owner, or whether if he was a contractor, yet the owner so interferes as to render himself liable (e). [168] Care should be taken in applying this' rule to avoid two errors. In the first place, it should not be for-' gotten that [169] where a man has a personal duty to perform, he cannot escape its performance by leaving it to some one else to do, [170] and in the above cases there was no duty delegated ; and in the second place, that if the person who has employed a contractor, has nevertheless, impliedly promised the plaintiff that a certain state of things exists (as that a stand or bridge is safe) it becomes such person's duty to see that it is safe, and he is liable notwithstanding he has employed a competent person (f). [171] A " contractor " is one who engages to do a cer- tain work for another, but is free. to use such means to accomplish the result as he may see fit (g), and it is not conclusive evidence of service or no service whether he is paid by the day or by the job (A ). The fact that a person (d) Hagties v, Percival, mpra. If) See the oaaes post. Oh. in., s «, (e) M'LangUin v. Fiyoi, 1 M. & 6. 48 Corporations ; and see Francis v. Oook- (action for trespass In driving a carriage erell, L. B. S Q. B. 501 ; 39 L. J. Q. B. 291, with postillions against the plaintiff's Grote v. Chester Ry. Co., 3 Ex. 251, gig); Laagher t>. Pointer, 6 B. & C. 647 (?) Allen v. Hayward, 7 Q. B. 960; (defendant, owner of carriage, hired Sadler v. Henlock, 4 El. & B. S70. ' horses, owner of horses sent his driver (%) Per Crompton, J., Sadler v. Hen- who was negligent, held, defendant not lock, gupra; [see iafra\. liable). (K) Corbln v. American lilills, 27 Conn. 274. Payment b7 employer, of contractor's servants' wages, it has been held, does not necessarily make the employer their master. — ^Tibbits «. Enox, etc., B, Co., 62 Me. 437; Geer v, Darrow, 61 Conn. 230; 23 Atl. Eep. 1087. Where K. con- '(racted with a railroad company to complete an abandoned construction job and was to be paid for it what the labor and material to be furnished by him should cost and ten per cent additional as compensation, it was MASTER AKD SEEVANT — CONTBACTOH. 221, employed to do any work is liable to dismissal by bis employer, is strong evidence of his character as servant, and not contractor (i), but not conclusively so (k). But here, as in many other instances to which reference has already been made, the difficulty lies rather in the facts than in the law. Thus, sometimes, an employer limits the control of the person employed as to the mode in which the work is done, though not as to the choice of workmen ; or as to the choice of workmen, and not as to the mode of doing the work ; but it is not proposed, as stated in Chapter I., to deal with questions of this sort which depend upon the constructions of particular contracts rather than upon the law of negligence. The principle is now well established, both in England and America (Z), although after a long course of conflicting decisions in both countries, that the employer of a " con- tractor " is not responsible for the negligence of the con- [172] tractor or his servants (m), (where the work con- tracted to be done is not of itself dangerous) (n), or there is no duty incumbent upon the employer to do the thing himself (o). The same rule holds with respect to contractor and (>) Blake V. Thirst, 2 H. & 0. 29. See 16 C. B. 550 (contractor cnttlng thTongh Charles e. Taylor, L. B. 3 S. F. D. 492. xoad Into drain); Beedle v.Jj.&N.W. (£} Beedle v. North West By. Go., i By. Co., i £z. 244, supra (contractor Bx, 244. making viadnct) ; Feachey v. Bowland> (2) See Shearman, s. 79. 13 O. B. 182 (earth heaped up by a con- Cm) Allen V. Hayward, 7 Q. B. 960 tractor so as to be annteance). (making a drain) ;Batlerv. Hunter, 7 H. (n) Tarry v. Ashton, ante, 214. Or & N. 826 (architect employing contractor wrongf uL See Bills v. Sheffield Gas Co., to pull down party-wall) ; Mllllgan v, 2 El. & Bh 767; or naturally leading to Wedge, 12 Ad. & B. 737 (butcher employ- danger. See Bower v. Feate, amte, 214. ingdroTer);Steelev.Sonth-BastemBy., (o) Seeinfra. held that this did not make K. the servant.of the company, and that the company was not responsible for his taking trees from the land of a third party. — New Orleans, etc., B. Co. v. Beese, 61 Miss. 681. The fact that no price is fixed and no specifications made as to the work to be done does not render a contract one of mere hire and ser- vice.— Hexamer v. Webb, 101 N. Y. 377 ; 4 N. E. Rep. 756. 222 NEGLECT OF DUTIES EEQUIEING OKDINART CAEE. sub-contractor, if such sub-contractor is a contractor and not a servant (i?). (p) BapsoD V. Cabiiti 9 M. & W. 710 8eTyantoftbesiib-contractor,\rasacon- (clnb committee, builder, gasfltter;.held tractor) ; Overton v. Freeman, 11 0. B. builder not liable) ; Enigbt ». Fox, 6 Fx. 867 (defend^t contracted to pave a dis- 721 (railway company employed con- trlct, sub-contractor to pave a street, tractor to make line, subcontractor to contractor finding stones and carts, make bridge,sub-eub-contractorto sup- stones negligently left In street, con- ply Bcafloldlng, sub- contractor to supply tractor not liable) ; Feason v. Cox, L. B. llgbts tor scaffolding; injury to plaintiff 2 C. F. D. 369 (contractors built build- from negligence with respect to scaffold- ing and removed boarding, snb-con- ing; held sub -contractor not liable, as tractor's men doing Interior let tool snb-sub-contractor, altbotigli a general fall, held contractor not liable) ; [infra]. (P) Upon the same groand the contractor is relieved of liability by placing the work'in the hands of a sub-contractor. — Cnf£». Ne-wark, etc., R. Co., 35 N. J. L. 17, 574; State ■». Mersereau, 64 N. Y. 138; Scarbrough 0. Alabama M. By. Co., 94 Alk. 497; 10 So. Eep. 316; City of BafEalo v'. Clement, 19 N. Y. S. Eep. 846; Parker v. Waycross & F. E. Co., 81 Ga. S87; 8 S. E. Eep. 871; French v. Vix, 21 N. Y. S. Eep. 1016; 30 Abb. N. C. 158; 2 Misc. Sep. 312. A. had a contract to paint a dome. He employed B. to erect a scaffold. The scaffold was defective and A.'s workman sustained an injury there- from. A. knew nothing of scaffolds. In a suit brought against A. and B. to recover damages for injuries, it was held that B. was answerable therefor, and A. was not.— Devlin v. Smith, 89 N. Y. 470; 42 Am. Sep. 311, reversing 25 Hun, 206. A, operated a hod elevator machine under a contract with the builder who was erecting a building. A. furnished the boiler, engine, elevator, and the engineer whom he superintended and paid. Through the neg- ligence of the engineer the elevator fell and injured a workman engaged in the framing who was employed by a sub-contractor ; it was held that the engineer was A.'s servant and that A. was responsible for his negli- gence. — Gerlach v. Edelmeyer, 47 N. T. Superior Ct. 292. A. was employed to paint a church and he gave to B. the contract for the frescoing. A. lent B. two competent men who were sent up to place the planks. A painter employed by B. sustained injury from the break- ing of one of the planks. The planks were furnished by the church and the painter who was injured sued A. on the ground that the men sent to do B.'s work should have detected the imperfection in the plank. It was held that the action could not be maintained. — ^Ditberner v. Eogers, 66 How. N. Y. Pr. 85. But where one employed a contractor to enter upon land and do cer- , tain work and it turned out that the entry was a trespass, the employer was held liable for trespass committed by a sub-contractor. — Leber v. Minneapolis, etc.. By. Co., 29 Minn. 266. MASTER AND SERVANT — CONTRACTOR. 223 The mere recommendation by the contractor's employer of a servant will not make him the servant of the employer, nor will the mere expression of a preference for one of the contractor's servants {q). As has been already said, where there is a duty imposed upon or impliedly undertaken by, the employer himself, he is liable for the due exercise of such duty ; and where an obligation is imposed upon any person by law he cannot [173] escape from it by employing a contractor. Thus, where a statute ordered the owner qf land to make a drain, and to refill it with earth, and the owner employed a Con- tractor who neglected properly to refill the drain, it was held that the owner and not the contractor was liable (r). And where there is a duty upon the lessee of premises not to leave a trap door open it is no answer that the servant of a coal merchant left it open (s). If the employer has in any way undertaken a duty in ■ respect of the work which he has given to the contractor to do, he must, of course, perform such duty with reasonable care. And, if he undertakes to supply the contractor with things necessary for the prevention of injury to third [174] parties and injury arises from his neglect to do so, he will be liable (t). So, also, it has often been held that the temployer has a duty to see that, after the contractor's servants have left (g) Qnarman v. Bamett, 6 M. & W. ster, 36 L. J. Q. B. 166; and see " Cor- 499 (defendants as^ed toi a partlcniar porations performing statntory dntles," driver; held not their servant). post, Ch.Ill.,3. 6, (r) Grays. Pnllen, 5 B. & S. 970; 34 L.' (s) Plckard v. Smith, 10 0. B. (N. S.) J. Q. B. 265; Fickard v. Smith (occupier 470. [The lessor is not liable ; see Wolf of refreshment room liable for coal v. Eirkpatiick, N. T. Ot. App., 4 N. E. merchant's servants negligently leaving Bep. 188.] cellar grating open); Hole ». Sitting- (t) Gilbert v. Beach, 6 Bosw. 445. bourne Ry. Co., 6 H. & n;488 (railway [See Lake Superior Iron Co. o. Erickson, company to construct bridge by Act of 39 Mich. 492 ; KeUy s;. HowcUl, 41 Ohio St. Parliament to open without detaining 438.] — [Ellis v. McNanghton, 76 Mich, vessels; contractor negligent and com- 237; 42 N. W. Kep. 1113; Woodman v. pany liable) ; Mersey Docks Trustees v. Metropolitan R. Co., 149 Mass. 335 ; 21 N. Gibbs, Li. R. 1 H. L. 93; 35 L. J. Ex. 225, E. Rep. 482; Ohio South. R. Co. v.Morey, H. L. ; Tarry v. Ashton, L. R. 1 Q. B. D. 47 Ohio St. 207 ; 24 N. E. Rep. 269.] 321; 45 L. J. Q. B. 446; Hyams ». Web- 224 NEGLECT 0;P DUTIES KEQTJIEING ORDINARY CARE. off work, the works are left in a safe condition, so as not to injure strangers (m). Owners of real property are not liable for the negligence of *' contractors," any more than the owners of chattels (a;), although for a long time it was held that they were. If the work which the owner orders the contractor to perform be wrongful, the owner will be responsible to third parties for tke wrongful acts so done by the contractor and his servants (y). (u) Smith V. Milne, 2 Dow, 290 (person lOi. See alao Beedie v. L. & N. W. By. employed to plastei hoase, cat hole into Co., i Ex. 211; Snight v. Fox, 6 Bx, 721 ; staircase and left it; held, proprietor Overton «;. Freeman,110.B.867; [in/ra]. liable. (2^) EUls v. ShefQeld Gas Co., 2 El. & (X) GaytOTd v. NlchoUs, 9 Ex. 702, Bl. 707. overrnllng Bnsh v. Stelnman, 1 B. & P. (x) The doctrine ol Bush v. Steinman has been orerraled in this coun- try. — Hilllard v. Bichardson, 3 Gray, 349, and see Painter v, Pittsburgh, 46 Pa. St. 213; Peck v. New Tork, 8 N. Y. 222; Kepperly v. Eamsden, 83 111. 354; King v. New York, etc., R. Co., 66 N. Y. 181; City of Moline v. McKinnie, 30 111. App. 419; Alabama Midland Ey. Co. v. Martin, 100 Ala. 511;. 14 So. Bep. 401; Maltbie v. Bolting, 26 N. Y. S. Eep. 903; 6 Misc. Bep. 339; Crenshaw v. Ullman, 113 Mq. 633; 20 S. W. Eep. 1077. In Hughes f. Eailroad Co. (39 Ohio St. 475), Judge Mcllyaine said: " The general rule that employers are not liable for the negligence or misconduct of independent contractors is not disputed. It is contended, however, that the rule does not apply in cases of contracts with respect to real property. This contention cannot be maintained. The rule applies to contracts in respect to real as well as personal property. It is, how- ever, in'respect to real estate subject to these exceptions. The 'employer cannot relieve himself from liability by contracting with others for the performance of work, where the necessary or prob- able effect of the performance of the work, would injure third persons; nor can he relieve himself of duties resting upon him as the owner of real estate, nor to do or suffer to be done npon it by others, that which would constitute a nuisance. — Cooley on Torts (2d ed.), p. 644. Q/) Carricei;. West Va.,etc.,R. Co., 35 W. Va. 389; 19 S. B. Eep. 571; Brannock v. Elmore, 114 Mo. 55; 21 S. W. Eep. 451; Jones v. Mc- Minimy (Ky.), 20 S. W. Eep. 435; Brennan v. Schreiner, 20 N. Y. S. Bep. 130; 28 Abb. N. C. 481; Williams v. Fresno, C. & I. Co., 96 Cal. 14; SOPac. Bep, 961; Eetcham v. Cohn, 22 N. Y. S. Bep. 181; 2 Misc. Eep. 427; Waller v. Lasher, 37 111. App. 609; Booth©. Borne, etc., B. Co., 63 Hun, 624; 17 N. Y. S. Bep. 336; Hawver Vj Whalen, 49 Ohio THE employers' LIABILITY ACT. 225 Where a person is the servant of the Government, as the Postmaster-General (z), the captain of a man-of-war (a), or [175] of the public, as the surveyor of highways (6), he is not responsible for the negligence of others in the same employment, and this, notwithstanding that no action can be brought against the principal. ' Section VI. — Sub-section II. The Employers' Liability Act, 1880. The law having been laid down, as we have seen ante, p. 154, that a master is not in general liable to his servant for damage resulting from the negligence of a fellow- servant in the course of their common employment, and workmen and other servants having very much insisted upon the hardships involved in such a state of the law, a bill was, after several attempts, passed in favor of the employed, and was entitled the Employers' Liability Act. There is, however, no provision in the act to insure the operation of it as against a master who is willing and able to induce his servant to agree that the act shall not apply to his service, and the statute is therefore open to all the objections so often urged against permissive legis- lation (c). It has been held that a workman dan contract Iz) Lane v. Cotton, 1 Ld. Eaym. 646; Lord Jastlce Bramwell to Sir Henry Whitfield V. DeBpencer, Cowp. 754; Jackson, in which the Lord Justice, wltK [Dnnlop V. Mnnroe, 7 Cranch, 244, 269; hlsusaalforce, maintains that the act is see infra}. a mistake in many ways, and amongst (o) Nicholson v. Monnsey,lB East, 384. others, because the large employers of [6) See per Blackburn, J., In Mersey labor will contract themselves outof the Docks V. Gibbs, L. B. 1 H. L. 93, at p. act, while the smaller employers, will be 111; 35 L. J. Ex. 225; and see Public hit; but I am inclined to think that it Officers, in/ra. Is the small employers who are eepe- (c) In a small book on the Employers' daily the most negligent, and who Liability Act, by Mr. Thomas Bevan, ought to be made more careful, will be found a copy of a letter from St. 69; 29 N. E. Eep, 1049; Donova v. Oakland & B. R. T. Co., 102 Cal. 245; 36 Pac. Eep. 516. 15 226 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. himself out of the statute, and that such contract is binding upon himself and his widow, suing under Lord Campbell's Act, where such contract is not induced by fraud or force, or made under duress, and is made on good consideration (d!). Mr. Justice Field said that worKtaaen, as a rule, were perfectly competent to make reasonable bargains for them- [176] selves (e); but, if this be so, it does not appear why any statute was needed. " At the time of the passing of the Act," said Mr. Justice Field (/"), " the law stood thus : It was an implied term of the contract between employer and workman that the lattcfr should not recover damages if he was injured by the negligence of a person (even a superior) in the common employment. Then the effect of section 1 was to do away with that term." " The effect of section 1," said Mr. Justice Cave (g), "is that the workman may bring his action in fiv6 specified cases or classes (h), and the employer shall not be able to say in answer that the plaintiff occupied the position of workman in his service, and must therefore be taken to have impliedly contracted not to hold the employer liable. In other words, the legal result of the plaintiflF being a workman shall not be that he has impliedly contracted to bear the risks of the employment," i. e., as far as the five specified classes are concerned. With regard to other servants who are not within any of these five classes, but are fellowrservants in the common employ- ment, the old common-law rules apply. Thus in Robins V. Cubitt (iy, where a pail was lowered negligently by fellow-servants of the plaintiff, who were not in positions embraced by any of the above five classes, the employer was held not liable. The old common-law rules would (d) This view Is also taken by Lord (/) Griffiths v. Dudley (BarU, 9 Q. BramweU In the letter above referred B, D. 357, 863. to. (g) p. 306. (e) The employer had contributed to (A) See Mr. Justice Field's Judgment) a club an amount equal to the whole p. 362. contributions of the men. (i) 46 L. T. N. S. 635. THE employers' LIABILITY ACT. 227 seem also to apply in any case where the proceedings are not taken under the Act (as by due notice, &c.), but are taken at common law. It was not intended, however, that workmen should have a double remedy, and pro- ceed for the same cause of action under the statute and at common law {j). The statute also only applies to [177] "workmen" as defined by section 8 of the Em- ployers' and Workmen Act, J875 (/b), and to railway servants (?). Therefore, clerks, shopmen, timekeepers, etc., are excluded. Seamen are not within this statute (m), nor are workmen in the service of the Crown, as they are not mentioned (re). Workmen includes workwomen (o) ; apprentices of a lim- ited class are- probably included {p). Section 1 of the text runs as follows: — "1. Where after the commencement of this Act personal injury is caused to a workman. " (1.) By reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer, or " (2.) By reason,of the negligence of any person in the service of the employer who has any superintendence en- trusted to him whilst in the exercise of such superintend- ence ; or " (3.) By reason of the negligence of any person in the service of the employer to whose orders or directions the O') Mnnday v. Thames Iron Works passing of this Act, be expressed or im- Co., 47 L. T. N. S. Sai; 10 Q. B. D. 69. plied, oral or in writing, and be a con- (£) Sect. 10 of 38 &■ 39 Vict. c. 90, tract of service or a contract personally " the expression workman does not in- to execate any work or labor," see infra. clnde a domestic or menial servant, bnt, (2) Sect. 8. save as aforesaid, means any person (m) See 43 & 44 Vict. c. 16, s. 11, pre- who, being a laborer, servant In has- serving the excluding words of the Em- bandry, jonrneyman, artiflcer, bandl- ployers' and Workmen Act, 1875. craftsman, miner, or otherwise engaged (») Maxwell on Statutes, p. 112, in manoal labor, whether nnder the age (o) 13 & 14 Vict., o. 21, s. 4. of twenty-one years or above that age, (.p) See ss. 5, 6, and 12 of the 38&39 has entered Into or works nnder a Vict. c. 90, Employers' and Workmen contract with an employer, whether the Act, 1876. contract be made before or after the 228 NEGLECT OP DUTIES EEQtJIEINO OEDINARY CAEE. workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed ; or " (4. ) By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given,hy any person delegated with the authority of the employer in that behalf ; or [178] " ( 5) By reason of the negligence of any person in the service of the employer who has the charge or con- trol of any signal, points, locomotive engine, or train upon a railway, " the workman, or in case the injury results in death, the legal personal representative of the workman, and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work." It will be convenient to consider the several sub-sections of the above section separately in their order. By sect. 1, sub-sect. 1, where personal injury is caused to a workman (g'), by reason of any defect (»•), the work- man (s) shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work (t). By sect. 2, sub-sect. 1, such defect must have arisen through the negligence of the employer or of some person in his service entrusted with the duty of looking after such defects (m); and by sub-sect. 3, if the workman knows of the defect and fails to give information to the (3) See sect. 8. (t) As to the meaning of these last (r) In the condition of the ways, words In GrMftths v. Dudley, supra; and works, machinery, or plant connected see infra. with or nsed in the hnslness of the em- (te) He need not be a snperlntendent ployer. over the person Injured. (s) Or, in case of death, his repre- sentative, etc. THE EMPLOTEBS' MABIHTY ACT. 229 employer or some superior person (cc) his employer is not liable. Numerous cases have been decided upon the meaning of the word " workman " in the 4 Geo. IV. c. 34, s. 3 (^), [179] (which is similar to the Employers' and Work- men Act, 1875, s. 8), and in the Truck Act, 1 & 2 Will. IV. c. 37 {zy. Probably the cases under the Truck Act do not give much assistance, as the statute is not referred to in the present Act, and it was a penal not a remedial statute. An omnibus conductor has been held not to be a " work- man " within the Employers' Liability Act, since he is not a person to whom the Employers' and Workmen Act, 1875, applies, "being neither a laborer," "journeyman," nor person otherwise engaged in manual labor (a). As to what is a " defect " within the meaning of this section, the cases in the note may be consulted (6). " It has been contended," said Field, J., in McGinn V. Palmer's Co. (&), " that there is a difference between (X) UnlefiB he was aware they knew v. Barrett, 2 H. & C. 934; 33 L. J. Ex. 153 of the defect. (butty colliers, not within) ; Ingram v. (,p) Ex parte Onnerod, 1 Dowl. &L. Barne,a, 7B. & B. 115; 26 L. J. Q. B. 82 825 (designer and artificer); Ex parte (laborer making bricks under written Gordon, 25 L. J, M. O. 12 (tailor em- contract lor a railway contract, no con- ployed by the job) ; Ex parte Bailey, 23 tract for personal work, not within). L. J. M. C. 161 (collier, personal service) ; (o) Morgan v. London General Omnl- Lawrenoe v. Todd, U 0. B. N. 8. 554; 32 bus Co., 12 Q. B. D. 201; [50 L. T. N. 8. L. J. M. C. 238 (Iron shipbuilder and six 687, affirmed on appeal.51 L. T. N. S. 213 ; workmen) ; Davis v. Berwick, 30 L. J. M. Brown o. Butterley Coal Co., Q. B. Dlv., C. 84 (accouDt.keeper on a farm not a Law Times, Dec. 26, 1885 (miner work- servant in husbandry); Bramwell v. Ingfor" batty man" within).] Fennack, 7 B . & 0. 536 (watcher under a (6) McGiffln v. Palmer's Shipbuilding ^. /o. not a laborer); Hardy B.Eyle, 9 B. Co., 48 L. T. N. S. 346; 10 Q. B. D. 5 & C. 603 (silk weaver at home not a la- (something permanent In the condition borer) ; Ex parte Hughes, 23 L. J. K. 0. of the way) ; Huxam v. Thorns, L. T. Jan, 138 (cook, dairymaid, and assisting at 23, 1882, p. 227, Q. B. D. ; Langham v. harvest work, servant in husbandry). Young, L. T. July 30, 1881, p. 233 ; Whlta- (a) Eiley v. Warden, 2 Ex. 69 ; 18 L. J. ker v. Balmforth, L. T. Sept. 10, 1881, p. Ex. 120 (contractor under superior con- 327 ; Topham v. Goodwin, L. T. Nov. 6, tractor not within Act); Sharman v. 1881, p. 10;Heskev. Samuelson &Co., 12 Sandars, 13 C. B. 166; 20 L. J. C. P. 99 Q. B. D. 30 (condition of machine means (contractors employing others and condition with respect to purpose to sometimes working, not within) ; Bow- which It Is applied) ; [see also Orlpps v. ers V. Lovekin, 6 E. A B. 684 ; 25 L. J. Q. Judge, 61 L. T. N. S. 182]. B. 371 (butty colliers, within) ; Sleeman 230 NEGLECT OP DUTIES EEQUIEIN& OEDINARY CARE. * a way ' and ' the conditioa of a way,' and illustrations have been given to bear out this contention. The case has been put of a way perfectly well constructed, but upon which on a frosty December morning water falls, so that it gets into a dangerous state. I cannot help thinkins that that would , be a defect in the condition of the way, because , the way is the thing which people walk upon, and the thing itself is actually altered. Taking the case of machinery, there the absence of oil does not, it seems to me, affect the permanent condition of the thing itself (c). Here the defect is not in the way, the defect [180] is that some person carelessly put something on the way which he ought not to have put there. This was an obstruction. In a grant of right of way if such a case were brought forward the declaration would not have been that the way was defective, but that it was obstructed, ^.ctions are brought sometimes against railway companies for their stations being in a defective condition — out of " repair — but if an action were brought against a railway company for leaving a bucket on a dark night in a dark passage, surely it would not be alleged that this consti- tuted a defect in the way. I cannot help thinking, there- fore, that the construction to be put on sub-sect. 1 is that the defect must be something in the permanent, or quasi- permanent condition. Therefore without laying down any general rule, I think the present case does not fall within the section, and on this point the judgment will be re- versed." -And Stephen, J. , said," A defect in the machinery would be the absence of some part of the machinery, or a crack, or anything of that kind. A defect in the condition of the way, or. works, or machinery, or plant, is certainly wider, but I do not think it very much wider. It means, I should be inclined to say, such a state of things that the power and quality of the subject to which the word (c) Sarely the absence of oil might machine, and as permanently as Ice very materially affect the condition of a would affect a way. THE employees' LIABILITY ACT. 231 * condition ' is applied are for the time being altered in such a manner as to interfere with their use.' For instance, if the way is made muddy by water, or if it is made slippery by ice, in either of these cases, I should say that the way itself is not defective, but the condition of the way, by reason of the water which is incorporated with it, or from its being in a freezing state, is affected. We are asked to go a step further, and Mr. Wills is obliged to contend that any obstruction whatever, although it did not alter the condition of the way in the sense which I have described, nevertheless would amount to a defect in the condition of the way. That seems to me to lead to the use of language which would certainly be very unnatural. [181] Suppose, for instance, a drunken man staggering along the road, could that be called a defect in the con- dition of the way ? and, if not, would it make any differ- ence if he were lying down dead drunk? If such an obstruction is not a defect in the condition of the way, I do not see why a piece of tap should be. I do not think we ought to put so wide a construction on the words ' con- dition of the way * as to include obstacles lying upon the way, which obstacles do not in any degree alter the powers of the way, or alter its fitness for the purpose for which it is generally employed, and cannot be said to be incor- porated with it. It seems to me, therefore, that the presence of this piece of tap on the road cannot be called a defect in the condition of the way." The concluding words of the section are Very peculiar, viz., " that the workman shall have the same rights and remedies as if the workman had not been a workman, &c." What rights and remedies are these ? Are they the same as a trespasser, or a person invited, or a volunteer? The words can only mean that the defense that he is a fellow- servant is not to be raised (d), but he must be considered (d) See Griffiths v. Dudley, supra; seeperCave, J., p. 365. 232 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. as a person employed for the mutual benefit of t^e em- ployer and himself towards whom the employer is bound to exercise ordinary care. As to the meaning of the word machinery, see 41 Vict, c. 16, s. 6, Factory and Workshops Aet, 1878. By sect. 1, sub-sect. 2, where personal injury is caused to a workman by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him (e), the workman shall have the same right, &c. If the workman is aware of the negligence, and fails to [182] give information to the employer or some superior person the employer is not liable. Sect. 2, sub-sect. 3(f). The meaning of the words " person who has any super- intendence entrusted to him" is explained by sect. 8 to mean " a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labor. Shaffers and Jones were employed by the General Steam Navigation Company loading a ship with sacks of corn. Jones had to guide the beam of the crane by means of a guy rope, and to give directions and warnings to the men as to hoisting and lowering the sacks. He neglected to use the guy rope, and some sacks fell and injured Shaffers, who was in the hold stowing sacks. It was held that Jones was " ordinarily engaged in manual labor," and was not " a person who has superintendence entrusted to him "{g). (e) Whilst in tbe exeiclee of such workman may be gnilty of contrlbntoij Bnpeilntendence. The effect of tbe negligence In otber crays notwithstand- woTd' " Tvtailst" cannot be tbat an em- Ing tbe eeetionj Stewart v. Evans, L. R. ployer sbonld say tbat tbe superintend- W. N. June 2, 1883, p. 99; [see Weblin v. , ent was professedly superintending, Ballard, Q. B. Div.,L. T.Marpb 27, 1886]. but, in fact, was doing something he (g) Shaffers v. The Gen. Steam Nay. ought not, as has been suggested; see Co., 10 Q. B. D. 356. The judgment of Campbell's Fraser's Law of Master and the lodges '.n tbe above case throw no Servant, p. 229. light upon the meaning of the words (/) Unless he was aware the em- ''superintendence" and " mannal la- ployeror superlorpersonalreadyknew. bor." See an) This sub-section has been dis- cassed, ante, p. 231. 236 NEGLECT OF DUTIES REQUIRING ORDINARY CARE. where a rule or by-law has been approved or has been ac- cepted as a proper rule or by-lav^ by one of Her Majesty's Principal Secretaries of State, or by the Board of Trade or any other department of the government, under or by vir- tue of any Act of Parliament, it shall not be deemed for the purposes of this Act to be an improper or defective rule or by-law (c). " (3) In any case where the workman knew of the de- fect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence " (d). The words of this section are '* some person superior to himself in the service of the employer." I suppose a [186] bricklayer is superior to a hodman, but if a hod- man reported to a bricklayer would that be sufficient to render the builder liable ; ought he not to report to a fore- man, or person to whom the builder has delegated his duties? Sect. 3. *' The amount of compensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury, of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury." This section may be regarded as a rough and ready mode of stopping the indiscretion of some juries. It was found in practice that in ordinary cases juries found three years' wages as compensation, and this has been taken as the limit under the Act. It is presumed that the old rules as to estimating the damages still remain, so that bodily suffering is a head of damage just as much as loss of wages. (c) This sab-sectlon has' been dts- (d) See ante, p. 232, note (/). onssed, ante, p. 232. THE employees' LIABILnT ACT. 237 Sec. 4. *' An action for the recovery under this Act of compensation for an injury shall not be maintainable un- less notice that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or in case of death, within twelve months from the time of death : Provided always, that in case of death the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice." This section requires notice to be given within six weeks from the injury. If such notice is not given then at the end of six weeks from the injury no action can be brought even if the injuries have been dormaut or have materially increased (d). Possibly such cases may be rare, but they might well be provided for. In case of death notice must be given within six weeks from the injury, unless the [187] judge thinks there is a reasonable excuse; so that if a man has been injured and has not given notice he loses his remedy, but if he dies in the seventh week from the injury his representatives can recover if a judge thinks fit. Secondly, the section requires an action to be begun within six mouths from the injury ; but if the mau dies then twelve months from the death. Therefore, if a plaintiff gave notice within six weeks and did not commence an action till after six months, he would lose his right of action ; but if he then died from his injury in the seventh month, I presume his rights would revive, and his repre- sentatives might commence an action twelve months after- wards. Ther^ seems to be no sufficient reason for such complicated provisions. A. section providing for a six weeks' notice and six months', writ, unless the judge should be of opinion that there was a reasonable excuse for not giving the notice or bringing the action within the time, ((f) Ualess in case of death. See infra 238 NKGLECT OF DUTIES REQUIRING ORDINARY CARE. would probably suffice. What is a reasonable excuse is left to the discretion of the judge, and each case will there- fore depend upon its own especial facts (e). The notice must be in writing, for this section must be read with sect. 7 (/"). It is of no consequence that knowledge is brought home to the defendant or that he was present at the accident or gave money, &c., to the plaintiff after the injury was inflicted (g). The notice in writing must be in accordance with sect. 7. Where the letter which was relied upon as a notice spoke of " injuries received at your dock, particu- lars of which have already been communicated to your superintendent," Lord Coleridge (h) said: " It has been argued that a notice to satisfy this enactment can be made by a reference in it to some other documefit. In my opin- [188] ion it cannot. If.the letter relied on in this case had referred to some writtieii document in which the nature and particulars of the injury were given, it would not, I should have thought, have been a compliance with the words of this enactment, which describe the notice as one and single, containing in it the incidents which the statute has required it to contain as a condition precedent to maintaining any action. This, however, is only my own opinion, and the point is one which it is not necessary to determine in the present case, as we are all agreed, that the letter of the plaintiff's solicitor which is here relied on does not incorporate with it, or refer to any written document, and is clearly not a notice in compliance with the requisites of the. Act." Brett, L. J., said: "I agree that as a general rule the notice must be given in one notice, but I am not prepared to say that it would be fatal if it were contained in more than one notice. Sup- (e) Maoey v. Hodson, L. T. Pec. 24, 482; Adams v. Kiebtlngale, L. T. April 1881, p. 140 (defendant promised compen- IS, 1882, p. 424. ^sation three times — held, no excase). ig) See the cases, supra. (/) Moylev. Jenkins, 8Q.B.D.lie; (ft) Reen v. MillwaU Dock Co., wpra. Keen v. MlUwall Dock Co., 8 Q. B. D. THE employees' LIABILITY ACT. 239 pose, for example, a person in his letter written on one day should describe fully the injury he had sustained, but should leave out his address, and he should the next day send a letter stating that in the letter I wrote yesterday I omitted to give you my address, and I now give it. If both these letters were written in time, and both served on the employer, I am not prepared to say that the last might not be taken to incorporate the first, and therefore, though not an accurate but an informal notice, it might be considered a notice within the meaning of the statute. If in the present case the letter of Mr. Bradley had referred to a written report, and to the date and particulars there given of the injury, I should not at this stage have said that there had not been a notice within the Act, but should have desired a rule in order that the matter might be more fully discussed. The letter, however, only refers to a statement in words supposed to have been given by the plaintiff to the defendant's inspec- tor, and not to a statement in writing, and is therefore not [189] a notice within the Act, which in order to be such must, I agree, contain all the circumstances in writing." Holker, L. J., said: " I agree with my Lord, and on the same grounds which he has given, that there was no suf- ficient notice in this case. But I cannot say that a good notice might not be made out by one written document referring to another." It has been held that the notice need not particularly describe the cause of the injury, but it is sufficient if it states in ordinary language the cause of the injury and the date at which it was sustained " and therefore the words " for injury to his leg " was held sufficient (h). It is perhaps singular that the judgments do not notice that no cause of injury is mentioned at all in ordinary language or otherwise. The cause of action is probably roughly in- (A) stone v. Hyde, 9 Q. B, D. 76. 240 NEGLECT OP DUTIES KEQUIBING OKDINAEY CASE. dicated by the words " injury to his leg." The cause of injury was the fall of a beam, etc., the burstinpj of an en- gine, etc., but there is no mention whatever, of any cause. The words of the Act should have been notice " of the injury and of the cause thereof." In a subsequent case, the notice was that the plaintiff '« was injured in consequence of your negligence in leaving a certain hoist unprotected, whereby," &c., the jury found that the negligence was in allowing the plaintiff to go alone on the hoist, but there was no negligence in leaving thejioist unprotected, and it was held that the notice was sufficient, as it sufficiently stated the " cause of injury," though not the " cause of action." Field, J., said, "In determining whether the notice is good or not, the Court cannot enter into the question of proximate or remote cause. It is not necessary to state the cause of action, but only that which will enable the employer to have substan- tial notice of what has occurred, so that he may make proper inquiries, and may come to trial prepared to meet the plaintiff's case." Cave, J., pointed out that the cause [190] of injury was that the space between the cage of the hoist and the wall was left unprotected. The jury came to the conclusion that there was no negligence in leaving that space unprotected, because it was the duty of the mistress always to go with a child sent in the hoist (^). Sect. 5, " There shall be deducted from any compensa- tion awarded to any workman, or representatives of a workman, or persons claiming by, under, or through a workman in respect of any cause of action arising under this Act, any penalty or part of a penalty which may have been paid in pursuance of any other Act of Parlia- ment to such workman, representatives, or persons in respect of the same cause of action ; and where an action has been brought under this Act by any workman, or the i ii) Clarksou v. UnsgraTe, 9 Q. B. D. 886. THE EMPLOTEKS' LIABILITT ACT. 241 representatives of any workman, or any persons claiming by, under, or through such workman, for compensation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action, such workman, repre- sentatives, or persons shall not be entitled thereafter to receive any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action." Sect. 6. — " (1.) Every action for recovery of compensa- tion under this Act shall be brought in a county court, but may, upon the application of either plaintiff or defendant, be removed into a superior court in like manner and upoa the same conditions as an action commenced in a county court may by law be removed. " (2.) Upon the trial of any such action in a county court before the judge without a jury one or more assessors may be appointed for the purpose of ascertaining the amount of compensation. " (3.) For the purpose of regulating the conditions and mode of appointment and remuneration of such assessors, [191] and all matters of procedure relating to their duties, and also for the purpose of consolidating any actions under this Act in a county court, and otherwise preventing multi- plicity of such actions, rules and regulations may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and pro- cedure in other actions in county courts. " « County court ' shall, with respect to Scotland, mean the • Sheriff's Court,' and shall, with respect to Ireland, mean the ' Civil Bill Court.' " In Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions pre- scribed by, section 9 of the Sheriff Courts (Scotland) Act, 1877. 16 242 NEGLECT OP DUTIES EEQUIEING ORDINABY CAEE, " 111 Scotland the sheriff may conjoin actions arising out of the same occurrence or cause of action, though at the in- stance of different parties and in respect of different injuries." The manner in which and the conditions on which an ac- tion may be removed in a county court to a superior court, are to be found in 9 arid 10 Vict. o. 95, s. 90 ; 19 & 20 Vict. c. 108, s. 38 ; 28 and 29 Vict. c. 99, s. 39. Actions may also be removed by certiorari (k). Sect. 7. "Notice in respect of an injur}' under this Act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury and the date at which it was sustained, and shall be served on the employer, or, if there is more than one employer, upon one of such employers. j " The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. [192] " The notice may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business ; and, if served by post, shall be deemed to have been served at the time when a letter containing the sam-e would be delivered in the ordinary course of post ; and, in proving the service of such notice, it shall be sufficient to prove that the notice was properly addressed and registered. " Where the employer is a body of persons corporate or unincorporate the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or, if there be more than one office, any one of the offices of such body. •' A notice under this section shall not be deemed invalid (i) See OOQiity Court Practice by Ity Act would be lemoyed. Mundayw. Pltt-LewlB, p . 171, et seg. An application Tliames Ironworks Co., 10 Q. B. D. 59— for a certiorari was refused In one case Denman and Manlsty, JJ. ; 47 L. T. N. S. on the ground that If It were granted 351 ; [see Beg. ». The Judge of the Oity most cases under the Employers' Liabil- of London Court, 62 L. T. N. S. 637]. STATUTES AFFECTING EMPLOYEU AND EMPLOYE. 243 by reason of any defect or inaccuracy therein, unless the judge who tries the action arising from the injury men- tioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defense by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading." This section must be read with sect. 4, ante, p. 237. " A notice under the act must be delivered in such a manner that it is reasonable to expect that it will come to the defendant's knowledge in the ordinary course of busi- ness." Therefore, a notice left at the place of business after business hours, not in the letter box, but in a box used by the foreman, is not properly served (I). (Z) Adams v. Nightingale, supra; L. T. Apiil 16, 1882, p. 121. Statutes affecting Employer and Employe. — The statutes of the States of this country differ from the Bnglish statutes and from each other. Some of these we have given in this section; Alabama. — Code Civil, 1886, § 2690: — " Liability of master or employer to servant or employe for injaries. — When a personal injury is received by a servant or employe in the ser- vice or business of the master or employer, the master or employer is liable to answer in damages to such servant or employe, as if he were a stranger, and not engaged in such service or employment, in the cases following : — "1. When the injury is caused by;reason of any defect In the condition of the ways, works, machinery or plant connected with, or used in the business of the master or employer. " 2. When the injury is caused by reason of the negligence of any per- son in the service or employment of the master or employer who has any superintendence intrusted to him, whilst in the exercise of such super- intendence. " 3. When such injury Is caused by reason of the negligence of any person in the service or employment of the master or employer, to whose orders or directions the servant or employe at the time of the injury was bound to conform, and did conform, if such injuries resulted from his having so conformed. " 4. When such injury is caused by reason of the actor omission of any person in the service or employment of the master or employer, done or made in obedience to the rules and regulations or by-laws of the master or employer, or in obedience to particular instructions given by any 244 NEGLECT OE" DUTIES EEQDIBING OKDINAEY CAEB. [193] The section states that notice may be served by delivering the same to or at the residence, &c., and in another person delegated with the authority of the master or employer in that' behalf. " 6. When such injury is caused by reason of the negligence of any per- son in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway. " Bat the master or employer is not liable under this section, if the servant or employe knew of the defect or negligence causing the injury, and failed in a reasonable time to give information thereof to the master or employer, or to some person superior to himself engaged in the ser- vice or employment of the master or employer, unless he was aware that the master or employer or such superior already knew of such defect or negligence; nor is the master or employer liable under sub-division one, unless the defect therein mentioned arose from, or had not been dis- covered or remedied owing to the^egligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition. " Under section 6291 the personal representative may recover in case of death ; the amount recovered shall not be subject to debts, but be dis- tributed according to the statute of distributions." California.— Civil Code, 1886, § 1971 :— « An employer must in all cases indemnity his employe for losses caused by the former's want of ordinary care." " Sec. 1970. An employer is not bound to indemnify his employe for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employe." The sections of the Dakota code, 1887 (S763 and 8751), which are pre- cisely similar to those of the California code, received a construction by the United States Supreme Court In Northern Pacific B. Co. v. Herbert, 33 Alb. Law Jour. 288, where it was said, giving the sections as in a former revision: "We do not consider that the first of these sections (1130 corresponding to section 1970 of the California code) changes the law previously existing as to the exemption of an employer from personal responsibility for injuries committed by a servant to a fellow-servant in the same general business, or identifies the business of providing safe machinery and keeping it in repair with the business of handling and moving it. The two kinds of business are as distinct as the making and repairing of a carriage is from the running of it. They are, as stated in the case cited by the Supreme Court of Massachusetts, from which we STATUTES AFFECTING EMPLOYER AND EMPLOYE. 245 [194] paragraph «• the notice may be served by post by a registered letter. At first sight this looks as if the service have cited above, separate and independent departments of service, though the same person may by turns render service in each. The person engaged in the former represents the employer, and in that business is not a fellow-servant with one engaged in the latter. The words 'same general business ' in the section have reference to the general business of the department of service in which the employe is engaged, and do not embrace business of every kind which may have some relation to the affairs of the employer, or even be necessary for the successful man- agement. If any other construction were adopted, there would, under the section, be no such thing as separate departments of service in the business of railroad companies ; for whatever would tend to aid in the transportation of persons and property would come under the designa- tion of its general business. The saAe section is In the Civil Code of California, and our construction of it accords with that of the Supreme Court of the State. Section 1131 (3ection 1971, California code) of the Dakota code expresses the general law, as we have stated it to be, that an employer is responsible for injuries to his employes caused by his own want of ordinary care. His selection of defective machinery, which is to be moved by steam power, is of itself evidence of a want of ordinary care; and allowing it to remain out of repair when its condition is brought to his notice, or by proper inspection might be known, is culpable negligence. Here the cars had been defective for years. The brakes were all worn out, and their condition had been called to the attention of the yardmaster, who had control of them while in the yard, and might have been ascertained, upon proper in- spection, by the officer or agent of the company charged with the duty of keeping them in repair, yet nothing was done to repair either brakes or cars. Under the circumstances it cannot be said that the company exer- cised, through its officer or agent charged with that duty, ordinary care to keep the cars and brakes in good condition, and therefore under the provisions of this section It is bound to indemnify the plaintiff." Georgia.— Code 1882, § 3036, p. 762 :— " If the person injured is himself an employe of the company, and the damage was caused by another employe and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery." Iowa.— § 2002, Eev. of 1888 :— " Every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in conse- quence of the neglect of agents, or by any mismanagement of the engineers or other employes of the corporation, and in cousequence of the willful wrongs, whether of commission or omission of such agents, engineers or other employes, when such wrongs are in any manner connected with the 246 NEGLECT OP DUTIES EEQUIEING ORDINARY CARE. by post [195] must be by registered letter; but the probable meaning is that notice may be served in the use and operation of any railway, on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding." Under this section are, among others, the following decisions: — Plaintifi is not released from his obligation to make out in the first instance freedom from contributory negligence on his part to entitle him to recover Murphy v. C. E. I. & P. E. Co., 45 la. 66. This section extends to such employes as are engaged In the business of operating the railroad and not to those whose employment irs not con- nected therewith (Schroeder v. C. E. I. & P. E. Co., 41 la. 344), and is therefore not unconstitutional as not being of uniform operation, or as granting exclusive privileges. — Deppeu. Same, 36 la. 52; McAunich v. M. & M. E. Co., 20 la. 838. A workman in the shops of the company is not so engaged as to come within the provisions of the company. — Potter®. C. E. I. & P. B. Co., 46 la. 399. But a person engaged in working on a bridge of the company, and required in the course of his employment to ride upon its trains, is with- in the section (Scbraeder v. Same, 47 la. 375, 388) ; and so is a section hand (^Fransden v. Same, 86 la. 372), or a hand engaged in shoveling gravel from a gravel train (McEnight v. I. & H. E. Const., 43 la. 406). Or a band engaged in connection with the operation of a dirt train.— Beppe v. C. E. I. & P. E. Co., 36 la. 52. Whether an employe is so engaged or not is a question for the jury. — Schraeder v. C. E. I. & P. E. Co., 41 la. 344. The company held liable to an employe for damages resulting from the negligence of a co-employe whose duty it was to keep a bridge In order in the performance of such duty. — Locke v. S. C. & F. E. Co., 46 la. 109. Where the injury results in death the company is liable to the personal representatives of deceased under section 2526, — Fhilo, v. 111. Cent. E. Co., 33 la. 47. The fact that a lessee may be held liable under this section does not prevent recovery against the owner of the road. The actions are cumulative.— Bower v. B. & S. W. E. Co., 42 la. 646. Under the last clause of the section, a contract exempting a railroad company from liability for injury to a passenger is Invalid.— Eose ». D. V. K. Co., 39 la. 246. PlaintlfC's petition stated that he was a detective employed by the agent of a railroad to proceed to a certain point on the track and endeavor to detect parties who had been guilty of placing obstructions on it-i track, and was directed to proceed along the track of the road to that point and commence his search; that on the way he became prostrated STATUTES AFFECTING EMPLOYER AND EMPLOYE. 247 ordinary way, but if served by registered letter, proof of service is simplified. by the heat and was injured by a passing train through negligence of the engineer. Held, that nnder the aveTments of the petition, the detective and the engineer were co-employes, and that the plaintifE was engaged in the operation of the railroad in such sense as to be entitled to the benefit of these provisions.— Pyne v. C. B. & Q. E. Co., 54 la. 223. Kansas.— Taylor's Statutes, 1889, § 1251 :— *< Every railroad company organized or doing business in this State shall be liable for all damages done to any employe of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employes to any person sustaining such damage." — Bailway Co. ;>. Ingram, 20 Kan. 69; BailroadCo. «. Lea, 20 Ean. 359; Railroad Co. v. Jones, 20 Ean. 527; Bailroad Co. v. Edwards, 20 Ean. 531 ; Bailroad Co. v. Shirley, 20 Ean. 660. Mississippi.— Be\. Code 1892, § 3557:— " Every railroad company shall be liable for all damages which may be sustained by any person in consequence of the neglect or mismanage- ment of any of its agents, engineers or clerks, or for the mismanage- ment of its engines; but for injury to any passenger upon any freight train not being intended for both passengers and freight, the company shall not be liable except for the gross negligence or carelessness of its servants." afissouri.- Eev. Stat. 1889, § 4426:— " Damages for injuries resulting in death in certain cases, when and by whom recoverable." " Whensoever any person shall die from any injury resnitiog from or occasioned by the negligence, unskillfulness or criminal intent of any ofScer, agent, servant or employe whilst running, conducting or manag- ing any locomotive, car or train of cars ; or of any master, pilot, agent or employe whilst running, conducting or managing any steamboat, engineer, or any of the machinery thereof, or of any driver of any stage coach, or other public conveyance, whilst in charge of the sam^e as a driver; and when any passenger shall die from any injury resulting from or occa- sioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, or in any steamboat or the machinery thereof, or in any stage coach or other pnblic conveyance, the corpora- tion, individual or individuals in whose employ any such officer, agent, servant, employe, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance at the time any injury is received, resulting from or occasioned by any defect or insufficiency, nnskillfnlness, negligence or criminal'intent above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars, which may be sued for and recovered: First, by the hasband or 248 NEGLECT OF DUTIES KEQUIEING ORDINARY CARE. [196] The concluding paragraph of the above section says that the notice shall not be deemed invalid by reason wife of the deceased ; or, second, if there be no husband or wife, or be or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased: Provided, that if adopted, such minor child or children shall hare been duly adopted according to the laws of adoption of the State where the person executing the deed of adoption resided at the time of such adoption; or, third, if such deceased be a minor and unmarried, whether such deceased unmarried minor be a natural born or adopted child, if such deceased unmarried minor shall have been duly adopted according to the laws of adoption of the State where the person execut- ing the deed of adoption resided at the time of such adoption, then by the father and mother, who may join in the suit, and each shall have an < equal interest in the judgment; or if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant, for his defense, to show that the defect or insufficiency named in this section was not of a negligent defect or insufficiency and that the injury received was not the result of unskilltulness, negli- gence or criminal intent." In Proctor v. Hannibal, etc., B. Co., 64 Mo. 112, it was held that the phrase " any person " did not Include fellow-servant, and that his remedy was the same as before the passage of the statute overruling Schultz v. Pacific B. Co., 36 Mo. 13, and Connor v. Chicago, etc., B. Co., £9 Mo. 285. Montana.— nev. Stat. 1895, Civil Code, § 905: — " That in every case the liability of the corporation to a servant or employe acting under the orders of his superior shall be the same incase of injury sustained by default or wrongful act of his superior, or to an employe not appointed or controlled by him as if such servant or employe were a passenger." Pennsylvania. — Brightley's FurdonDig., 11th ed., 1886, p. 1268, §6: — " When any person shall sustain personal injury, or loss of life, while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein, or thereon, of which company such person is not an employe, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employe; provided, that this section shall not apply to passengers." This act has received a construction in the following cases : — In Kirby v. Pennsylvania B. Co., 26 Smith, 606 (1874), the L..B. K. Co.., terminated above grade sufficiently near a siding of the P. B. R. Co. to enable cars on the latter to receive coal by means of chutes from the former. The plaintiff, although not a servant of either company, but employed by others to assist In running the coal through the chates, STATUTES AFFECTING EMPLOTEE AND EMPLOYE. 249 of "any [197] defect or inaccuracy" therein, unless the judge who tries the case is of opinion that the defend- while standing on the siding, was injured by the servants of the P. E. B. Co. He was non-snited under the terms of the act ; and his conten- tion in the Supreme Court being mainly that the act was unconstitutional, Chief Justice Agnew held that in order to be ' lawfully engaged or em- ployed,' he must be there by his own consent, and that he thusinowingly assumes a relation regulated by law. The relation being one of danger, authorizes the State, by virtue of being the conservator of the lives, security and property of her citizens, to enact the law as a police regula- tion. " The liability of the company for the acts or omissions of others, though they \fe servants, is only an offspring of the law. The negli- gence which Injures is not theirs in fact, but is so only by imputation of law. The law which thus imputes it to the company for reasons of policy, can remove the imputation from the master and let it remain with the servant, whose negligence causes the injury." The second case under the act was decided in 1876 (Mulherrin v. D. D. L. & W. E. Co., 31 Smith, 366). A brakeman of the B. company was injured by an engine under the control of the D. company, which had, by agreement, a right of trackage over the road of the former. In an action against the D. Company, Mr. Justice Paxson, delivering the opinion of the court, held that the fact of the defendants' having track rights only, was immaterial, the question not being one of extent of title, but that the plaintiff was employed on or about the road of the defendant, and came precisely within the terms of the act. The next case was Eicard v. N. Pa. R. Co., 8 Norris, 198. The plain- tiff went to a station of the defendant's road to receive and take away some goods which had been consigned to him. The agent of the com- pany directed him to the goods in a car standing on a siding, and while the plaintiff was occupied in transferring them from the car to his wagon, he was injured by a train in the hands of the defendant's servants, being shunted on the siding. He was non-suited under the act, and Mr. Justice Gordon, in sustaining the judgment of the court below, said: "Whatever else may be said of the act, the charge of obscurity cannot be brought against it, neither can it be said that the legislative intent is not expressed with suflScient force. * * » The act includes ' any person,' old or young, male or female ; yet care is, at the same time, taken, by the use of the words 'lawfully engaged' to exclude any possible presumption, which otherwise might arise in favor of a trespasser. Then, again, the comprehensive words ' engaged or employed ' are used in order to embrace every imaginable manner by which any one may or might be brought in, upon or about the roadway, cars, or works of a railroad company. Nor is the proviso itself without significance as to the intent of the body of the act, for the sweeping char- acter of the preceding provisions is recognized in that a specific exemp- 250 NEGLECT OF DUTIES EEQUIHING ORDINAKY CABE. ant is prejudiced, and [198] that the defect or inaccu- racy was for the purpose of misleading. The omission of the date altogether was heM to be a *' defect of inaccuracy " within the section (»i), (m) Carter v. Drysdale, 12 Q. B. D. 91. tion in favor of passengers was regarded as necessary." From this decision, Justices Mercur, Woodward and Trunkey dissented. Cummins v. P. C. & St. L. E. W. Co. was decided in 1879. The facts were as follows : The servant of a coal dealer was occupied Ih unloading cars on a siding constructed by the dealer upon his own property. Some cars were accidentally " shot " from the main track upon the siding through the careless misplacing of a switch by the railroad company's employes, and the coal dealer's servant was injured. The Supreme Court decided (92 Pa. St., p. 82) that he was employed " about " the company's road, and fell within the terms of the act. In 1880 the same court held that the act embraced a route agent of the United States Poet-offlce Department. Under the laws, regulations of the department and contract with the company, one end of the bag- gage car was lifted up for the use of the mail service. The agent was killed by the negligence of the carrier. The lower court held that he was a passenger. But the Supreme Court thought otherwise and Interpreted the words of the act in a clear and thoughtful opinion that shows how careful was the judicial consideration. — Pa. B. Co. v. Price, 96 Pa. St. E. 256. InEichter v. Pa. Co., 104 Pa. St. 511 (1883), the decedent was an em- ploye in a rolling mlU, and It was his duty to haul ashes from the mill across the company's track to a cinder pile. In attempting to do so, he found his way blocked by some standing cars, and while uncoupling them to make his passage, was killed by the negligence of the company's servants in driving an engine upon the cars without warning. The lower court held that the act applied, but. the Supreme Court decided that there was no " engagement or employment " about the company's tracks — only a legitimate attempt to exercise the right to cross them, [The above cases in relation to the Pennsylvania Statute were taken from the Chicago Legal AAiiiser, March 16, 1886, credited to the Bailway News.'] Bhode Island.— Fvib. Stat. 1882, p. 653, § 15:— "If the life of any person, being a passenger in any stage coach or other conveyance, when used by common carriers, or the life of any person, whether a passenger or not in the care of proprietors of, or common car- riers by means of railroads or steamboats, or the life of any person cross- ing upon a public highway with reasonable care, shall be lost by reason of the negligence or carelessness of such common carrier's proprietor or DUTIES OF SEKVANTS. 251 [199] . Sect. 8. " For the purposes of this act, unless the context otherwise requires: — " The expression ' person who has superintendence entrusted to him,' means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labor. " The expression ' employer,' includes a body of persons corporate or nnincorporate. [200] •* The expression ' workman,' means a railway servant and any person to whom the Employers' and Work- men Act, 1875, applies " (n). Section VII. Duties of Servants. The question how far servants, as such, are liable to third parties is somewhat obscure. Practically it does not often arise, because if the servant is negligent the master is responsible, and the injured party will obtain a more satis- factory remedy against the master than against the servant. (n) This Bectlon has been dlscnsBed, infra. proprietors, or by the unfitness, or negligence, or carelessness of their servants or agents, in this State, such common carriers, proprietor or proprietors shall be liable to damages for the injury caused by the loss of life of such person, to be recovered by action of the case, for the benefit of the husband or widow, aud next of kin of the deceased person, one-half thereof to go to the husband or widow, and one-half thereof to the children of the deceased." TTisconsiJi.— Eev. SUt. 1889, § 1816a:— "Every railroad corporation doing business in this State shall be liable for damages sustained by any employe thereof within this State, vrithont contributory negligence on his part, when.such damage is caused by the negligence of any train dispatcher, telegraph operator^ superin- tendent, yard-master, conductor or engineer, of any other. employe who has charge or control of any stationary signal target point, block or switch." 252 NEGLECT OF DUTIES BEQUIRING OEDINART CAKE. It is said that the servant is not liable for acts of nonfeas- ance or omission, but only for acts of misfeasance (o). Probably the difficulty will disappear if the nature of the duty incumbent upon the servant be considered. If the master has agreed with the third party to perform a certain duty, and the servant omits to perform that duty, the third party complains of the breach of contract by the master to which the servant is no party, and there is no duty upon the servant to perform the contract ; but if there be a duty upon a master to see that his carriage is driven properly (p), and a duty on a servant to drive it properly so as not to injure a third party, such third party may complain of the breach of eith'er duty. It is said that one servant cannot maintain an action against another in a common employment (§). If the neg- (o) Macdonnell on Master and Serv- (?) Abbro o. Jaqnith, i Gray, 99; ant, p. iSi. . Southcote t>. Stanley, 1 H. & M'. 250, per Cp) Hutchinson v. New York, New- Pollock, C.B. castle & Berwick Hy. Co., B Bxch. 350. (o) Harriman v. Stone, 57 Mo. 98, where a servant negligently con- structed a trap-door. See Baird v. Shlpman, 182 111. 16; 27 L. B. A. 128; Mayer v. Thompson-Hutchison Bldg. Co. (Ala.), 28 L. E. A.; Burns v. Pethcal, 75 Hun, 437; 27 N. Y. S. Rep. 499. In Daves v. Southern Pac. Co. (98 Cal. 19; 32 Pac. Rep. 708), where a section foreman who had unlocked a switch, negligently failed to close it, he is liable for the dpath of a section hand caused by a train entering on the side track. A servant is not liable .for his master's wrongful conversion of a chattel that had been lawfully taken by the servant with the owner's consent. — Silver v. Martin, 59 N. H. 680. Bat the master of a vessel is liable to third persons for his own negli- gence. — Denison v. Seymour, 9 Wend. 9. Though not when the vessel is under the charge of a licensed pilot and the injury occurs when the master is ashore. — Snell v. Rich, 1 Johns. 306. A servant is liable as well as the master for negligently driving over a third person.— Phelps o. Wait, 30 N. Y. 78; Hewett v. Swift, 3 Allen, 420. An engineer to parties injured by flre caused by his negligence. — Gil- son V. Collin, 66 111. 186. The servant is, of course, liable for tortious acts. — Hewett v. Swift, 3 Allen, 420; 2 Thomp. on Neg. 1061; Bacheller «. Plnkham, 68 Me. 253. DUTIES OF SESVANTS — OF PUBLIC OFFICEB8. 253 ligence of the fellow-servant be one of the risks which the plaintiff undertook he cannot recover ; but unless such be the case there seems to be no good reason why one servant should not recover against another for negligence.^ [201] As a general rule it seems that the person who actually inflicts the injury (whether he be the servant of another or not ) , is always himself responsible. The master who commands a trespass, and the servant who commits it, are respoi}sible jointly for damages (r). A servant who merely hires laborers for his master is not responsible for their negligence. Either the laborer who does the negligent act, or the master, or both, may be sued, but not the servant who hired (s). But a clerk who directs workmen, or a contractor who employs them, is liable (<). Section Vlll. ITegJed of Duties of Public Officers. Public officers are, as we shall see, in general bound to exercise more than ordinary care in the discharge of their duties and all that is necessary to notice here is that a [202] sheriff in relation to the owner of the goods seized by him, is nothing more than a mere bailee, and is not bound to exercise more than ordinary care of them, so far as such owner is concerned; but with regard to the person employing him to seize, we shall see that he is bound to exercise a high degree of care («). — [1 Osborne v. Hoigan, 130 Haas. (r) Bates v. Fming, 6 B. & C. 38. 102; 39 Am. Bep. 437; Hinds «. Over- («) Stone v. Cartwright, 6 T. B. 411; acker, 66 Ind. 647; 3S Am. Bep. 114; Wilson r. Feto, 6 Moore, Stelnliaiiserv. Spranl, U41fo. 551; 21 S. (f) Wilson v. Peto, n^tro. W. Bep. 859.] («) Pott, Cb. HL, s. 13. 254 NEGLECT OF DUTIES REQUIRING ORDINARY CAKE. • Section IX. Neglect of Duties by Trustees. The courts appear from the time of Kichard the Second to have exercised a jurisdiction over trustees,, compelling them to account to their cestui que trusts for their manage- ment of the trust estate (y). A trust was defined to be " A confidence reposed in some other, not issuing out of the land, but as a thing collateral, annexed in privity to the estate of the land, and to the per- son touching the land, for which cestui que trust has no remedy but subpoena in Chancery" (s). In truth, a trust was not recognized in the common-law courts, and there appears to be no instance of a common-law action against trustees for negligence (a). And by the Judicature Act, 1873, s. 34 (3), the execution of trusts, charitable or pri- vate, is assigned to the Chancery Division of the High Court. It is, since the Judixsature Acts, of no importance what the old form of action would have been, and under the new procedure the facts would, sooner or later, show ^ a neglect of duty in the execution of the trust which would be a matter for investigation in the Chancery Division. [203] I have had great diflSculty in deciding whether I ought not to place " trustees " amongst those persons who are bound to exercise something more than ordinary care. A trustee undertakes a serious responsibility, but often a very irksome one, from which he derives no reward or advantage whatever, and upon the whole it should seem that ordinary care is expected of a trustee, or perhaps it is {y) See Lewin on Trasts, 7th ed., p. 1. attempt was abandoned ; see Barnadls- (£) Co. Litt. 272 b. [Peiry on Trasts, ton v. Soame, 7 State Trials, 448 ; Stoxt v. 3d ed., sec. 13]. Mellish, 2 LXk. 612; and see as to execn- (a) Sometimes an attempt was made tois not being bailees at common law, to make a trustee liable in assnmpstt at. Orosse v. Smith, 7 East, 246; and as to common law ( Jevon v. Bash, 1 Vern. 344 j actions for specific legacies after assent. Smith V. Jameson, 3 T. R. 603), bnt the Williams on Executors, 7th ed., 193. NEGLECT OF DUTIES BY TRUSTEES. 255 better to say, that amount of care which his fiduciary position demands, for he appears to stand in a peculiar sit- uation. Trustees often undertake their duties unwillingly, although they do so voluntarily, and though they derive no benefit, yet if they voluntarily undertake grave responsi- bilities, they cannot complain if they are held bound to perform them. It has been often said that a trustee must exercise the same care on behalf of his cestui que trust as he would exercise for himself, and not any greater care (6). This has been improved upon by saying the same amount of care that " an ordinary prudent man of business " would use in his own afiairs (c), and this Mr. Wharton would further amend by saying the same, amount of care which a diligent paterfamilias would use (. Martyn, 1 Bea. 325; Keble v. (Ameiicanfands and stocks). SeeFlck- Tborapson, 3 B. 0. O. U2; Clongh v. aid v. Anderson, Ij. B. 13 Bq. 60S; Boss Bond, 3 M. & Cr. 496; Focockti. Bedding- v. Godsall, 1 T. &C. 0. 0. 617 (option to ton, S Ves. 799; Watts v. Gtrdlestone, 6 refuse to Invest on personal security); Bea. 188; Graves «. Straban, 8 De Gex, but see Cadogan «. Essex, 2 Drew. 227; M. & G. 291 ; [see in/V-a]. Beanclark «. Asbbnmham, 8 Bea. 322; (e) Forbes c. Boss, 2 B. C. C. 430; Langston v. OlUvant, G. Coop. 33 Faddon r. Bicbardson, 7 De 6. M. & 6. (tmst money lent to s trader) ; [see 563; Focock v. Beddlngton, 5 Yes. 799; note (e)]. (d)' " There is one rnle that is aniversally applicable to investments by trustees and that rule is that trustees cannot invest trust moneys in personal securities. li trustees have a discretion as to the kind of investment, it is not sound discretion to invest in personal securities." — Perry on Trusts, 3d ed., § 453, citing Clark v. Garfield, 8 Allen, 427; Spear v. Spear, 9 Rich. Eq. 184; Barney v. Saunders, 16 How. 545; Smith V. Smith, 4 Johns. Ch. 281; Wills' App., 22 Pa. St. 330; In re Blanvelt's Estate, 20 N. T. S. Rep. 119; 2 Con. Sur. 458; DufEord ■u. Smith, 46 N. J. Eq. 216; 18 Atl. Bep. 1052; Simmons v. Oliver, 74 Wis. 638; 48 N. W, Rep, 561; In re Craven, 43 N. J. Eq. 416; 5 Atl. Rep. 816. See Hunt v. Judge of Probate, S. J. C. Mass., 33 Alb. Law Jour. 508, where the purchase by a trustee under a will of certificate of a deposit issued by a National Bank was upheld and the trustee held not respon- sible for a loss occasioned by the subsequent failure of the bank. Without clear authority a trustee is not allowed to invest the trust funds in a hazardous mercantile enterprise. — Adams v. Nelson (Super. Ct. Cin.), 31 Wkly. Law Bui. 46. (ej Perry on Trusts, 3d ed., § 453. But this will not justify the trus- tees in lending to one of themselves. — DeJarnette v. DeJamette, 41 Ala. 708. The powers and directions given in the instrument must be strictly followed. — Ihmsen's App:, 43 Pa. St. 471; Burrill o. Shell, 2 Barb. 457. Perry on Trusts, | 452, 459, 460. One who as guardian or executor loans trust money contrary to the 264 ITEGLECT OP DUTIES REQUIRING ORDINARY CARE. may invest in is one of construction of the trust deed or of Acts enabling trustee to invest (/ ). [211] A trustee, even where the investment of the fund is left in his absolute discretion, must invest in per- manent securities, and not in such as pay a high rate for a short time and are then paid ofE at a lower price (jr). It is also imprudent for a trustee to take a second mort- gage (h). Trustees must not retail^ money in their own bands which by the trust they ought to invest strictly in public funds alone (i), and if they do they may be liable either to find the money or the amount of stock which they ought to have purchased ; but where there is any option as to invest- ments then they are only liable for principal and interest and not for stock which they might have purchased {k). A trustee cannot lend trust money upon mortgage upon (/)SeeIiewii^onTnistB,p.281efseg.; (A) See Lewin on Trusts, pi S02; [see Lewis V, Nobbs, 8 Ch. D. 591. Selling out inji-al . ot the three per cents and inyesting In a (i) Shephard v. Moals, 4 Hare, BOL stock mortgage la not jnstifled by the (£) Robinson v. Bobinson, 1 De G. M. nsnal powers to vary secnritles; Whit- & G. 266. See further as to cases where ney v. Smith, L. B. i Ch. 513. the court will make the trustee pay up (.g) Stewart v. Sanderson, L. B. 10 what the money would have amounted Eq. 26; [Wormley «. Worml^y, 8 Wheat. to If properly Invested. Lewln on 421]. — [See note (jr) mfra]. Trusts, p. 308 et seq. requirements of the slatnte does so at his own risk and in case of loss is liable to make it good, — Wadsworth v. Connell, 104 111. 369. (g) A trustee should not loan on unsecured note. — Nobles v, Hogg, 36 S. C. 322 ; 15 S. B. Rep. 369. But see Loud v. Winchester, 64 Mich. 23; SON. W. Bep, 896; Appeal of Dickinson, 152 Mass. 184; 25 N. E. Bep.99. In Appeal of Hele (182 Fa. St. 479), government bonds bought at a premium by a trustee were considered a good investment though they were soon after unexpectedly called in at par by the government. (ft) Shuey v. Latta, 90 Ind. 136 ; 17 C. L. J. 353 ; Whitney v. Martin, 88 N. Y. 535; Mattocks v. Moulton, 84 Me. 545; 24 Atl. Bep. 1004. In Gil. more v. Tuttle, 32 N. J. Eq. 611, the investment was made on the advice of counsel, 36 N. J. Eq. 617. And where investments are directed to be made in first mortgage securities, they cannot be made in those of an Inferior lien.— Clark V. St. Louis, etc., B. Co., 58 How. N. Y. Pr. 21. See In re Blauvelt's Estate, 20 N. Y. S. Rep. 119;' 2 Con. Sur. 458. NEGLECT OF DUTIES BY TRUSTEES. 265: a valuation made by or on behalf of the mortgagor, and ought to employ a valuer upon his own behalf {I), aud if trustees are directed to purchase real estate, they must have it valued and see that the title is good (m). Where [212] trustees sent a London surveyor to value an hotel in the country, and on his advice, without any further inquiry, although the nature of the advice given should have led them to make some, advanced money on mortgage of the hotei, and the hotel turned out to be of less value than the money advanced, though the valuer had valued it at double that sum, the trustee was held accountable for the money (n). As a general rule, if trustees be guilty of unreasonable delay in investing or transferring the funds, they will be liable for interest and costs (o). (4) The trustee ought to satisfy himself beyond doubt before he parts with the trust money who are the parties really entitled to it (jj), and he will be held liable to any party who can establish a better claim than the one to whom he paid over the money (q), even if he acted on advice of counsel (r-). He is not, however, chargeable with interest if he made a bona fide mistake {s). (Z) Ingle V. Fartildse, 34 Bea. 412.— (o) Lewin on Trasts, p. 310; [Sblpp [Somerset t). Foalett, 3 Reports, S47; 62 v. Hettrlck, 63 N. 0.329; Owen v. Law J. Cb. 720; 68 Law T. 613; 41 Wkly. Peebles, 42 Ala. 338; Aston's Est., 5 Bep. 534]. Wbart. 228; Andrews v.Scbmidt, 64 Wis. (m) Eastern Ooonties By. Oo., 5 H.L. 664.] 0. 363; Ez parte Governors of Obrist's CP) Lewln on Trusts, p. 316. Incase Hospital, 2 H. & M. 168. It Is said the; of doubt he sbonld apply to the Oonrt sbonld never purchase without getting under the Trustee's Belief Acts, the legal estate. Lewln on Trusts, p. 456. (<;) Ex parte Korrls, L. B. 4 Ch. 280. (n) Budge v. Gnmmow, L. B. 7 Cb. (r) Doyle v. Blake, 2 Scb. & Lef. 243. 719; Campklu v. Barton, W. N. June 16, (s) Saltmarsb ti. Barrett, 81 L. J. Oh. 1883, p. 110. 783. (&) A borrower is bound to special diligence and is liable for slight neglect. — Wharton on Neg., § 668, citing Howard v. Babcoc^ 21 111. 269; Chiles v. Garrison, 32 Mo. 476; Kennedy v. Ashcraft, 4 Bush, 630; Green v. Hollingsworth, 5 Dana, 173; Woodo. McClure, 7 Ind. 156. So with a purchaser at a trustee's sale.— Fuller v. Oneal, 82 Tex. 417; 18 S. W. Eep. 479; Leake o. Watson, 58 Gonn. 332; 20 Atl. Kep. 343. [213] CHAP TEE III, NEGLECT OF DUTIES RBQUIKING MORE THAN ORDINARY CARE. Section I. We proceed now to the investigation of those classes of cases where the law demands something more than ordinary care. We have seen (a) that the law demands this sort of care where a person is acting for his own benefit alone, or professes to have greater skill, or where a higher degree of diity has been undertaken, or where the law deems it for the public benefit to require a greater amount of care. Amongst ordinary duties requiring no particular skill or care per se, and yet requiring the greatest, by reason of their performance being for the sole benefit of the performer, are — Gfratuitous loan or commodatum in the case of the Bailee. Where a man lends another something, not desir- ing any return for it, he may justly expect that great care will be taken of the thing lent by the person to whom he lends it (6). The bailor, on the other hand, is not bound (as we shall presently see, post, Ch. IV.) to take great care that the thing which he lends is not hurtful to the person to whom it is lent. The bailee is the person benefited by the loan, and the bailor has a right to demand from him something more than ordinary care. This is one of the principles derived by our law from the Eoman law, and which has already been men- tioned, ante, p. 21. (o) AiUe, Ch. I. _ , (6) Ooggs v. BeinAid, 2 Baym. 916; Addison on Contracts, (8th ed.) 350. (266) BENEFIT 01' THE 0\V^•EE. 267 «' The borrower is bound," says Holt, C. J., " to use the strictest care and diligence to keep the goods, so as to [214] restore them back to the lender ; because the bailee has a benefit by the use of them ; so that if the bailee be guilty of the least neglect, he will be answerable ; as if a man should lend another man a horse to go T^estward and the bailee go northward, if any accident happen to the horse on the northern journey, the bailee will be chargeable (6). So, also, wherever a person does something for his own advantage, he must take something more than ordinary care to avoid injuring the rights of another. Thus, a person occupying property is bound, as we shall see (c), to take care that he deals with it so as not to injure persons being where they have a right to be («?). Persons who take money for admission to public places, stands at races, etc., are bound for many reasons to exercise great care; for, firstly, there is great obvious danger in the fact that a crowd will probably be attracted to the place and they have therefore undertaken a duty demanding great care ; and it is, secondly, a thing done mostly for the benefit of the owner ; and thirdly, it is the duty of persons who invite the public into such places, to see that they are safe (e). Nor can such persons shift their responsibility by saying that they employed a competent (6) Coggs V. Bemaid, 2 Baym. 915. 286 (bridge over raOway) ; Scott v. Lon- (c) Pott, B. 2. don Dock Co., 3 H. & C. 696; 34 L. J. Ez. (d) Tarry v. Asbton, L. B. 1 Q. B. D. 17 (sugar-bag falling upon cnstom bonse 3U;45Ii. J. Q. B. 260 (banging lamp over ofScer lawfully on premises); [seeit^v]. blgbway); Kearney v. liOndon, B. & S. (e) Francis v. Cockerel!, L. B. 5 Q. B. O. By. Co , L. E. 6 Q. B. 769 ; 40 L. J. Q. B. 501 ; 39 L. Q. B. 291 . (d) Silvers v. Nordlinger, 30 Ind. 53 ; Water Co. v. Ware, 16 WaU. 566 ; Congreve ». Smith, 18 N. T. 79. ' (e) In Camp*. Wood, (76 N. T. 92; 32 Am. Rep. 282), it was lield that a party letting a hall for public purposes holds out to the public that it is 'Safe, and he is bound to exercise proper care in providing safe arrangements for entrances. The plaintiff was injured by stepping off an unguarded piazza, the door upon which occupied the same relative position to an upper flight of stairs as it did to the street door of the 268 MORE THAN ORDINABY CARE. [215] contractor, for the duty is of a positive kind, and cannot be delegated (/" ). There is, as we have said (ff), in every invitation a sort of implied warranty of safety, by which the person invited is put off his guard, and prevented from examining with caution the position in which the inviter has placed him. A volunteer also, that is to say, a person voluntarily doing something, although not paid for doing so, nor requested, is bound to take more than ordinary care, for he has chosen to intrude himself into the affairs of another. It is otherwise, as we shall see, if he undertakes to do something in order to save a loss (i). It would seem to be the law that wherever a person undertakes to perform a service (or is what theHomanlaw called a mandatory) he is bound to bring to the perform- ance of such service that amount of skill and care which the service reasonably demands, and which, by accepting the ( /) See Corporations, post, Cb. III., B. (i) Post, Ch. IV. See Wharton, s. 69, 6, and Master and Servant, ante, pp. 163 n. 534. — |.Kay v. Barbank & Jones, 61 6a. et seq, 605.]— As to injury to a volunteer see Oh. (9) ArOe, Ch. n., s. 2. V., Contributory Negligence. lower flight. — See also Carrier v. Boston Music Hall Association, 135 Mass. 411. But in Kendall v. Boston, (118 Mass. 231), where a person was in- jured by the falling of a bust in a concert hall, there being no proof of negligence in placing it, the defendant was held not liable. And in Edwards v. New York, etc., R. Co., (98 N. Y. 245), where de- fendant let a building to be used for a public entertainment — pedes- trian contest — and one of the galleries fell under the stamping of a crowd keeping time with the music. Injuring plalntiS, defendant was held not liable, Buger, Ch. J., Danforth and Finch, JJ., dissenting. " While we may readily adopt the view of Dr. Wharton that there are no solid reasons for the attempt to divide and classify negligence into three degrees — slight, ordinary and gross — yet we must ignore the teachings of nearly all the adjudications unless we concedjB that a person who for reward Invites large numbers of the public to commit their lives and the safety of their persons to his custody, owes them a higher duty than that Implied by the term ' ordinary care.' " — 1 Thomp. on Neg. 811. See, ante, p. 72 et seq,; post, p. 279. PERSONS OF SKILL. 269 service, he has undertaken to supply (k) ; and this is so, whether the mandatory is paid for his services or not (Z). [216] In a report of a judgment of WiUes, J., in the " Law Journal " (m), that learned judge says: " In the case of a gratuitous bailment, it is said if you employ a mail of no skill to ride your horse, he is bound to use such skill as he possesses, and that you can require no more, and that he is liable for gross negligence in that sense. But if you employ a man to ride your horse who professes to be a groom, he would be answerable unless he had com- petent skill in horse riding." But although this may be the English law, as it certainly was the Koman, services would, not unnaturally, influence the mind of a jury, although logically speaking, it ought not. If it be the law that the fact of the services heing gratuitous does not alter the degree of care required, then whether gratuitous or not the mandatory is bound by the law to exercise skill, and whether he has done so is a matter of fact unaffected by the legal question. There is no doubt that where it is evident that persons hold themselves out to be persons of skill, they are bound to exercise skill (n). In Jones v. Bird (o), Bayley, J., (£) See Grill v. General Iron Screw (m) Grill v. General Iron Screw Co., Co., L. E. 1 C. P. p. 612, per WlUea, J. 35 L. J. C. P. at p. 330. (n) As to ordinary shiUed workmen (I) See ante, p. 21, note iy). see the remarks, ante, p. 58. (o) Jones t; . Bird, 5 B. & A. 837. (i) When we come to scratinize more closely the cases, we find that instead of diSering with the anthoritatlTe Boman law on this interesting issue, they repudiate the scholastic glosses, based on the fiction of non-remuneration, and hold to the position that a mandatory, even though he agrees to act without pay, is required, if he claim to be an expert, to act with the diligence belonging to his assumed profession. Whatever he claims to do, that he must do. If he claim to be a business man in the particular specialty, then he must act with the diligence of a good business man in such specialty. If he claim to be inexperienced in the specialty, then be most act with the diligence of a good business man inexperienced in the specialty. — Whart. on Neg., § 500. 270 MORE THAN OEDINAKY CARE. says: "It is not enough that the defendants have acted bona fide and to the'best of their skill and judgment. They are bound to conduct themselves in a skillful manner, and the question was most properly left to the jury to say [217] whether the defendants had done all that any skillful person could reasonably be requited to do in such a case" (p). Of this class are corporations who undertake the per- formance of difficult duties in consideration of t-he benefits bestowed upon them by their charter or statute {q)\ directors of companies (}•); carriers (s) who undertake responsible and difficult duties (beyond their liability at common law), though as we shall see as to carrying passengers, they appear to be performing a duty attended by serious danger, and may be classed amongst those persons who are dealing with dangerous goods. So, also, ship managers, as far as they are carriers of passen- gers. Physicians, surgeons (<). &c., would appear to belong to both classes; but innkeepers (w), solicitors (v), bankers (»), and public officers {y) are persons who have undertaken duties, not indeed dangerous to life or limb, but difficult to perform, and involving a high degree of care. When persons possess or use dangerous things they are bound to exercise more than ordinary care in their control of them, an^, indeed, in some cases, as we shall see, to keep them safe at their peril. Of this class are persons keep- ing dangerous animals (s), dangerous goods (a), gas (6), and carriers of passengers (d). (p) CltedbyBlaokburn.J., In deliver- (u) Post, a. 9. log the opinions ol the Judges In Mersey (v) Post, a. 11. Docks V. Qibbs, L. R. H. of L. 113; 84 L. (x) Post, s. 12. J. Ex. 22S ; and see Qiill v. General Iron (y ) Post, s. 11. Screw Co., supra. («) Post, s. 3. (3) Post, s. 6. (a)- Post, s. 4. (r) Post, 8. 7. (6) Post. B. 6. (s) Post, 8. 8. (d) Pott, s. 8. (t) Pott, a. 10. DANGBBOU8 THINGS. 271 Somewhat similar to the case of possessing or using dangerous things isthat of a man pursuing a course of con- duct which is lilsely to prove dangerous and although such course of conduct may be perfectly legal, or even for the public good, yet he is bound to exercise more than ordinary care in the presence of a danger known to himself.^ Thus, [218] where a man, perhaps for some very good reason, is driving upon the wrong side of the road, he is bound to use more th^n ordinary care to avoid collision (e). Also, as we have seen, a man who employs, a contractor or some independent person to do a dangerous thkig, is responsible for any negligence in the contractor ( / ). Thus, where the owner of a house adjoining the plaintiff's em- ployed a contractor who negligently cut into a party-wall to fix a staircase; it was held that the employer was liable, the fixing of the staircase being part of a hazardous operation (g). "The law," said Lord Fitzgerald, "has been verging somewhat in the direction of treating parties engaged in such an operation as the defendant's, as insurers of their neighbors or warranting them against injury. It has not, however, reached quite to that point. It does de- clare that under such a state of circumstances it was the duty of the defendant to have used every reasonable* pre- caution that care and skill might suggest in the execution of his works so as to protect his neighbor from injury, and that be cannot get rid of the responsibility thus cast on him by transferring that duty to another. He is not in the actual position of being responsible for injury no matter (e) Packwell v. Wllion, B O. & F, 315, ee Fa. St, 4Si; Ooogreve v. Smith, 18 N. T. 79]. »upra, (/) Buprai Bower v, Peto, 1 Q. B. (fii)Perolvali/. Hnghee, 9Q. B.D.441; D. 821; Tarry «. Aahton, 1 Q. B. D. 8 App. Gas. 443; Sturges v. Theological 3U;Angn»o. Dalton,8Q.B. D. 8S;4Q. Ed. Soc, 180 Mass. 4U; 39 Amer. Hep. B. D. 162; 6 App. Obb. 748; [Mercer v. 468. Jackson, M 111. 897; Boman v. Stanley, 1 He who does what Is more than ordinarily dangerous, Is bound to use more than ordinary care.— Morgan v. Cox, 22 Mo. 876; Todd v. Cockell, 17CaL98. 272 MORE THAN OEDINART CARE. . how occasioned, but he must be vigilant and careful, for he is liable for injuries to his neighbor caused by any want of prudence or precaution, even though it may be culpa Where a positive duty is imposed by statute, it should seem that something more than ordinary care is required of the person who has to perform it, and it is certain that such person cannot shield himself by saying that he em- [219] ployed a competent person (contractor or other) to pe^orm it (h). So, al^o, where a statutory duty has to be performed by the defendant, the plaintiff has a right to calculate upon its due performance, and, when it is not performed, to in- fer that the occasion for its performance has not arisen, and to act on that inference (i), being put off his guard by the conduct of the defendant. Upon the other hand, where a statute imposes a duty with the object of preventing a certain class of mischief, a neglect of such duty cannot be made the foundation of an action by a person who has by such neglect suffered an in- jury of a different kind (k). Common carriers are made liable, as it is said, by the custom of the realm, that is to say, that the law deems it expedient that they should be held strictly liable for the safety of the goods committed to their care. Their duties, as such common carriers, are, therefore, without the scope of this work (?•), for they are liable without any negligence being shown ; but, even where this absolute liability does not attach, we shall find that they are expected to exercise a high degree of care. The contract to carry passengers is not within the duties of a common carrier, and carriers of passengers are not (A) Gray v. Fallen, 5 B. & S. 970; 31 L. J. Q. B. 185; L. B. 7 H. L. 12 (gates ol L. J, Q. B. 266 ; and Bee s. 6, Oorpoiatlon level orossing to be closed by statate performlDg statatoiy duties; [Tbomp. left open), on Neg. pp. BE8. 905]. (k) Gorrls v. Scott, L. B. 9 Ex. 125, (<) North-Eastein By. v. Wanless, 4S (2) See s. 8, Oariieis. CARBIEBS. 273 therefore insurers, and it has even been thought that the carrier of passengers ought only to be called upon to use ordinary care ; bat it is plain that, for the same reason that carriers of goods are held liable for slight negligence, so also are carriers of passengers, viz., because the law thinks it expedient to compel carefulness in the interests of the public (m), [220] One obvions reason why the law thinks it expe- dient, in the case of common carriers, to compel careful- ness is, becanse of the confusion and loss of property which would arise if carriers of goods were negligent ; and one obvious reason why the law thinks it expedient to compel carefulness in carriers of passengers is because of the danger to humanlimb and life if such carriers were negligent. There are, no doubt, many other reasons ; but, whatever the reasons may be, we think it is plain that the law demands some thing more than ordinary care from carriers of passengers. Thus it is plain, we think, from the cases cited post, " Carriers," s. 8, that the courts have treated the carriage of passengers by stage coach as a matter of serious public concern ; and although they seem to use the words " ordi- nary care" and "due care" as synonymous, yet it is pretty plain that the judges seem to have thought that some considerable degree of care, to say flie least of it, ought to be observed (n). It is to be considered that the passenger is there by invitation and has paid his fare, and therefore the coach-owner has undertaken to provide, not indeed, for his safety in all events, but a considerable de- gree of security. So, also, it is clear that a considerable degree of care has been required of coach-owners in pro- viding a safe conveyance (o), so that they have been held liable even for latent defects (p). (m) Bedhead v. Midland Ey. Co.,per (n) Bedhead v. Midland By. Co., Blackburn, J., L. B. I Q. B. 379; 38 L. J. mpra. Q. B. 169; and Bee lupra. [Wharton (o) Bremmere. Willlams.lC. AF.414. Keg., S 62T1. iP) Sharp v. Grey, 9 BlnR. 467; [see poet, p. 274]. 18 274 MOKE THAN ORDINARY CARE. The reader is now referred to the following sections in which the cases are poUected, where, as it appears to the author, more than ordinary care seems to have been de- manded. The reader will be pleasied to remember that the language of the judges will not entirely bear out the doc- trine that more than ordinary care has been demanded, the words " ordinary " and " reasonable " being used, but [221] evidently (as the author thinks), in many oases, as meaning ordinary and reasonable under the circum- stances, that is to say, more than ordinary and reasonable in ordinary circumstances. Section II. Neglect of Duties of Owners and Occupiers of Real Property. The neglect of their duties by the owners;of property has been more fully discussed in a former chapter (g), and it is only necessary here to point out how far such owners are bound to exercise something more than ordinary care in dealing with their property so as not to injure another. It is said that something more than ordinary care is required where a man is using his own property for his own private advantage or pleasure (»?). It seems, however, not free from doubt whether, if a man uses his property for his own advantage in an ordinary manner, and so as not to be reasonably likely to involve danger, he would be bound (g) Ch, II. s. 2. (r) CampbeU, s. 13, p. 15. (p) Whart. on Neg., § 633. " And the rule Is declared to be that although the defect was latent and could not be discovered by the most vigilant external examination, yet if it could be ascertained by a known test applied by the defendant, the latter is liable." — Warren v. Railroad Co., 8 Allen, 227 ; Hegeman v. West B. Co., 16 Barb. 533; Meier v. Railroad Co., 64 Fa. St. 226. NEGLECT OF DUTIES IN RESPECT TO BEAL PROPERTY. 275 to exercise more than ordinary care; but if he used his property in an extraordinary manner for his own advan- tage (s) or so as to be likely to involve danger (<) he would be clearly bound to exercise something more than ordinary care.' In these latter cases where persons undertake extraor- dinary matters or matters likely to involve danger they must be assumed to undertake to exhibit skill or to use ex- [222] traordinary care (m) and cannot excuse themselves by delegating their duty to some one else (cc). The first proposition, however, although doubtful, I think may be supported. In principle it would appear to be correct, and Mr. Campbell (y) cites authorities to jus- tify that position. The cases cited by him, however (s), are those in which the Court presumed negligence from the mere fact of the accident, and he assumes that to be equiva- lent to saying that evidence of slight negligence is sufficient ; and he argues that some positive and direct evidence of negligence ought to have been adduced to prove ordinary negligence. But the explanation is that there is a differ- ence between sUght evidence of negligence and evidence of (g) Fletcher v. Bylands; [see inftra.] {y) Campbell, as. It, 15, 16. (<) Clark V. Chambers; Bower v. {z) Kearney v. L. B. & S. 0. By., L. Feate, L. B. 1 Q. B. D. 321; 45 I.. J. Q. B. S Q. B. 411; 6 Q. B. 759; Scott v. Liv- B. 446. erpool Dock Co., supra; Byrne «. (u) Olark v. Chambers, mpra; [see Boadle, supra; Briggs v. Oliver, 25 L. infra]. ' J. Ex. 163. (a;) Bowero. Feate,«ipra; [seeinfra]. (s) The doctrine of Fletcher v. Bylands has been disapproved by some courts in this country. — Marshall v. Welwood, 38 N. J. L. 339; Garland V. Towne, 65 N. H. 57. It has been approved in Wilson v. New Bedford, 108 Mass. 261 ; Ball v, Nye, 99 Mass. 582; and followed in Cahill v. Eastman, 18 Minn. 324. (x) Stevenson v. Wallace, 27 Gratt. 77, 91 ; Chicago v. Bobbins, 2 Black. 418; Bobbins v. Chicagp, 5 Wall. 667, 678. («) Evansich v. G. C. & S. F. By. Co., 57 Tex. 126; 44 Am. Bep. 686; Nagel V. Missouri Pacific B. Co., 75 Mo. 653; 42 Am. Kep. 418; Kansas Central By. Co. ». Fitzsimmons, 22 Kan. 686; 31 Am. Bep. 203; Penso v. McCormick, 125 Ind. 116; 25 N. E. Bep. 156. f Questions of negligence and contributory negligence left to the jury.) Contra, St. Louis, etc., E. Co. v. Bell, 81 111. 75; 25 Am. Bep. 269. 276 MORE THAN ORDINART CARE. slight negligence, and so far from saying that evidence of slight negligence would be sufficient, Cockburn, C. J., pre- sumed a want of ordinary care in the railway case, and Channell, B., made the same presumption in Byrne v. Boadle. These cases were decided upon the prinoiple of the maxim res ipsa loquitur (a), and when the fact was once allowed to be evidence of negligence at all, it might be evi- dence equally in most of the cases of slight, ordinary, or [223] gross negligence. The better way, as it is again submitted, is to point out that in these cases there was a duty upon the defendants, who for their own advantage were using their property in a manner which might cause injury, to exercise something more than ordinary care, and the question is, did they reasonably fulfill that duty. The grantee of a market who takes a toll for his own benefit incurs an obligation to maintain the market in a state reasonably fit for the purpose for which it was granted (6), and if he erects an obstruction (c), which causes danger to the property or persons who frequent the market he is as much liable as one who does so on a highway. , The same principle applies to the conduct of railway com- panies with respect to level crossings. With respect to ' implied invitations by them to persons to cross, as by leav- ingtheir gates open when they are by statute ordered to keep them shut, &c., their duties will be discussed pres'- ehtly (d). But apart from their statutable duty they are ' (a) See post, Ch. VI. (c) Defendants had placed eome low (&) Fer Lnsh, J., Lax v. Darlington) spiked railinga round a statne In the (Ma7orol),48L. J. Q.B.U3; aS. onapp. cattle market. L. B. 6 Ex. D. 28 ; 19 L. J. Ex. 106. (,d) Kext pages ; [see tn/rfii. {d) Wharton on Negligence, § 808. " There is no precise rule as to the duty -whicli railway companies owe to strangers crossing their lines of travel except where the same is pre- scribed by statute. They are bound to exercise a degree of skill, pru- dence and care in proportion to the danger. A less degree of care is required than in the carriage of a passenger for the reason that there is INVITATION. 277 by running trains upon a level crossing using their property in a manner likely to cause danger, and it is their duty to exercise something more than ordinary care (e). [224] So, also, as we have seen (/), railway com- panies are bound to prevent sparks flying from their engines upon the lands adjoining their lines, so as to cause injury, unless they are protected by the powers granted to them by Parliament, and where they are so protected, must still, as I think, use something more than ordinary care to pre- vent damage from a cause so likely to be dangerous {g). Where a person invites another upon his premises it should seem that he is bound to exercise more than ordi- nary care ; even although the coming upon the premises may be partly for the benefit of the pferson invited, for he has taken upon him a duty of a high degree (h). If the person giving the invitation gives it for his own benefit alone ve; Manchestex S. T. By. Co. v. Ptd- ened gate not on post, but goods train larton, 14 0. B. N. S. 64 (engine driver standing on the crossing, held on the blowing off eteam) ; Stnbley v. L. & N. whole no InTltatlon and contrlbntory W. B7. Co., L. B. 1 Ex. 13; il6 L. J. Ex. 3 negligence In plaintiff), (placing no watchmen) ; see also Bllbee if) Ante,p.83. ' «. L. B. & S. 0. By. Co., 18 O. B. N. S. 584 ; (g) Jones v. restiniog By., L. B. 3 Q. 34 L. J. C. F. 182 (100 trains passing in B. 733; 37 L. J. Q. B. 214; Vanghan v. the day); Cliff o. Mid. By. Co., L. B. 6 Q. Taff Vale By. Co., SH. &N. 685; bat see B. 258 (omission to keep a gate keeper). taUe, p. 83, note (n). See, however, Skelton v.Ij. SCS. W. By. (A) Campbell, s. 32; Shearman, 499s, Cb., li. E. 2 O. P. 631, post. Oh. V., Con- p. ."194; [see infl-a (ft)], trlbntory Negligence (ring which fast- not the contract relation between the company and the travelar which sabsists between it and the passenger." — 1 Thomp. on Neg, 417. Ordinary and not the utmost care and diligence is all that foot passen- gers can demand of a railroad company." — Id. See, also, Beach on Con- tributory Keg., pp. 190, 191. See post, p. 198. (A) " Bnt one who expressly or impliedly invites another to come npon his private grounds is bonnd to use ordinary care and prudence to the end that the latter be not injured while there." — 1 Thomp. on Neg. 304. In Sweeny «. Old Colony, etc., B. Co. (10 Allen, 368), it was held that " if a railroad company have made a private crossing over their track at grade in a city and allowed the public to use it as a highway and stationed :flagmen there to prevent persons from undertaking to cross when there is danger, they may be liable to damages to one who using due care is 278 MORE THAN OEDINABY CARE. it is clear that he will be answerable for what is called slight negligence; or, to speak more correctly, he is bound to exercise something more than ordinary care. But even where the invited person derives benefit from coming upon the premises, he seems to be entitleiJ' to the exercise of something more than ordinary care on the part of the inviter. Thus where the person invited comes upon the premises in the execution of a contract with the inviter, and it is for induced to cross by a signal from the flagman that it is safe and i» injured by a collision, which occurs through the flagman's carelessness," This is one of the leading American cases on this subject, but there is no distinction made here as to the degree of care which should be exer- cised. " A mere passive acquiescence," say the court, " by the owner or occupier in a certain use of his land by others invrflveslio liability; but if he diriectly or by implication induces persons to enter on and pass over his premises he thereby assumes the obligation that they are in a sate condition suitable for such use and for the breach of this obligation be is liable in damages to the person injured thereby." The invitation may be implied. Where a private way was opened by J;he defendant for his own convenience and a bridge buUt over a creek, which ran across it and the public used the same with has knowledge and permission and plaintiff sustained an injury caused by the breaking of the bridge which the defendant knew to be unsafe, though it was appar- ently in good condition, the defendant was held liable. — Campbell v. Boyd, 88 N. C. 129; 43 Am. Rep. 740. See Davis v. Chicago etc., E. Co., 58 ■Wis.,646; Barry o. New York Central, etc., R. Co., 92 N. Y. 289 ; Albert V. State, 66 Md. 326; Montieth v. Pinkbeiner, 66 Hun, 633; 21 N. Y. S. Sep. 288. But see Sweeny v. Barrett, 151 Pa. St. 600; 26 Atl. Rep. 148j Cusick V. Adams, 116 N. Y. 55; 21 N. E. Rep. 673; Howe v. Ohmart, 7 Ind. App. 32; 33 N. E. Rep. 468, citing "Welch v. McAllister, 16 Mo. App, 492; Powers v. Harlow, 63 Mich. 607; 19 N. W. Rep. 257. The managers of a fair have been held liable for injuries to guests re- sulting from a defect in the building In which it was held,^ Latham 77. Roach, 72 111. 179. See ante, p. 72. In the case of Howe v. Ohmart (7 Ind. App. 32; 33 N. E. Rep. 468), the court, in reviewing the case of Conradt v. Clauve (93 Ind. 476), said : " It was held by the Supreme Court, in a case where the proprietors and managers of a public fair permitted target shooting without giving- notice to 'the plaintifE, who was an attendant at the fair with horse and carriage, and whose horse was shot and killed by one of the target shoot- ers, that the defendants owed such a duty to the public as required them to give protection against such injuries, and the failure to so protect persons visiting such fair rendered the defendants liable for damages.'* INVITATION CUSTOMER. 279 the advantage of both that he should come upon the prem- ises, the inviter has taken upon himself a higher degree of duty than if the person upon the premises were a mere licensee, or mere guest (i), to whom he would only be liable for something in the nature of a trap, as we have seen (k), or, perhaps, for ordinary negligence. [225] The reason of this seems to be that the invitation puts the plaintiff off his guard, implying some sort of warranty .of safety (Z); so that it is the more incumbent upon the inviter to use great care. The question of invit- ation is commented upon in the judgment of Brett, M. B., in Heaven v. Pender (see pp. 12-19). A question often arises as to whether there has in fact [226] been an invitation, or whether the person coming on the premises is only what is called a bare licensee (m). Thus in the ordinary case of the customer going into a shop to purchase goods (n) there is an invitation and the (t) Holmes v. N. E. By. Co., L. B. 4 (in) John v. Bacon, L. B. 6 O. F. 437; Ex. 264; 38 I. J. Ex. 161; Sonthcote v. 391.. J. C.F. 365;Batcheloro.I'ortescDe, Stanley, 1 H. £ F. 247; 25 L. J. Ex. 339; 11 qf. B. D. 474; [see inflrd]. Francis v. Cockrell, supra. (n) See Indermaor v. Dames, L. B. I (i) Ante, Ch. U., a. 2. 0. F., per Willes, J., p. 287; 2 C. P. 311 ; (0 North-Eastem Co. «. Wanless, L. 36 L. J.- 0. P. 181; Holmes ». N. E. By. B. 7 H. Ii. 12; 43 I.. J. Q. B. 185. See, Co., per Bramwell, B., mpra; [aee pott, also, D. W. & W. By. Co. v. Slattery, I., p. 280]. B. 3 App. Gas. 1155. (m) In Parker v. Portland Publishing Co. (69 Me. 173; 31 Am. Eep. 162; 9 C. Ii. J. 108), plaintiff -went to defendant's newspaper office, late at night, to insert; an advert^ement in its paper. The coantiDg house being closed he ascended to the upper floor where wandering about the hall in search of a door he fell into an elevator opening, the door of which had not been closed, and was injured . Defendant was held not liable. See Sweeny v. Barrett, 151 Fa. St. 600; 25 Atl. Rep. 148; supra, p. 278; Faris c. Hobery, 134 Ind. 269 ; 33 N. E. Eep. 1028. A were passive acquiescence on the part of the owner or occupant in the use of real property by others does not involve him in any liability to them tor its unfitness for use. — Shearman & Bedf. on Neg., § 499; .citing Nicholson v. Brie R. Co., 41 N. Y. 525; Sweeney v. Old Colony, etc., E. Co., 10 Allen, 368; Zoebisch v. Tarbell, Id. 385; Gillis v. Pennsylvania E. Co., 69 Pa. St. 129; Vanderbeck v. Hendy, 34 N. J. L. 467, cited in PhUlips V. Library Co., 55 N. J. L. 307; 27 Atl/ Eep. 479. 280 MORE THAN OBDINABT CABE. customer has a right to expect to be taken care of (o), and the same is the case of passengers by railway who, as we shall see (p), have a right to expect not only that the premises are safe, but also that the carriages are safe. The same rule applies to all cases where persons by their conduct hold out to others that they may safely come upon their property. Thus where ferrymen put down a slip from the ferry to the shore for a horse to be led across (although they did not profess to take care of horses) and the rail (o) Chapman v. Bothwell, El. Bl. & 0>) Post, caiilers, b. 9. El. 168. (n) This is the case of a customer going into a shop to purchase goods. There is an invitation and the customer has a right to be taken care ol- Where plaintiff being in a store as a customer was Invited by the clerk to walk into the dark part of the store in which was an open trap-door through which she fell and was injured, defendant was held liable. — "Eieer v. Cameron, 4 Bicb. L. 228. See, also, Ackert v. Lansing, 48 How. Pr. 374; 59 N. Y. 646; Brosnanw. Sweetser, 127 Ind. J; 26 N. E.Rep. 555. So in Nave v. Flack (90 Ind. 205), it was held a trader is bound to maintain in a reasonably safe condition the approaches to his premises which are intended for the use of his customers, and is liable for injuries caused by a breach of this duty. In Bngel v. Smith (82 Mich. 1; 46 N. W. Rep. 21), the proprietor of a store waij held liable for injuries to a customer caused by the latter falling Into an unguarded open hatchway. — So where the customer fell into an elevator shaft (Turner v. Klekr, 27 111. App. 391; Snyder v. Witmer, 82 la. 662; 48 N. W. Bep. 1046; O'Brien v. Tatum, 84 Ala. 186; 4 So. Bep. 158) ; or down a hoistway (Clopp v, Mear, 134 Fa. St. 203; 19 Atl. Bep. 504; 25 W. N.'O. 571); or into a register hole (Hendricken v. Meadows, 154 Mass. 599; 28 N. E. Bep. 1054) ; or down stairways.— Finney v. Hall, 156 Mass. 225; 30 N. E. Bep. 1016; Johnson v. Bamberg, 49 Minn. 341; 51 N. W. Bep. 1043. ' But where plaintiff went at night to defendant's house to buy oats, and they, went together to the barn where the oats were kept, and while de- fendant was seeking a measure plaintifE walked about the barn in the dark, and fell through a hole in the floor and was Injured, it was held that defendant was not liable because the walking about the floor 4n the dark was not invited by him, nor was it part of the business. — Pierce V. Whltcomb, 48 Vt. 127 ; 21 Am. Bep. 120. See Bedell v. Berkey, 76 Mich. 485; 43 N. W. Bep. 308; Schmidt v. Bauer, 80 Cal. 665; 22 Pac. Bep. 256; Larkin v. O'Neill, 119 N. Y. 221; 23 N. E. Bep. 663; Huey v. Gahlenbeck, 121 Pa. St. 238; 15 Atl. Bep. 620. INVITATION. 281 was negligently loose and broken, it was held that they were liable; Maule, J., saying, " suppose it was the duty of one to provide another with a chair, I apprehend that duty could not be said to be fitly and adequately performed by providing, him with a chair having a tenpenny nail driven up through the bottom of it (r). And where a person makes a pathway and permits it to [227] be used to his house he invites all persons who have any f easouable ground for coming to his house to use the pathway, and he would be responsible for neglecting to fence off dangerous places (s). So, also, where a con- tract has been entered into, and the plaintiff comes upon the premises in pursuance of the contract, he comes by invitation (<). Where the plaintiff, a licensed waterman, came upon the premises to complain of a barge being improperly n'avi- gated, and was referred by defendant's man to the fore- man, and, while on his way to see him, he was injured by the fall of a bale of goods, it was held that whether he was there by invitation or was a bare licensee the defendants were liable, but in the judgment of the Court he was there by invitation (m). [228] Where a railway company is bound by statute to shut the gates of a level crossing while a train is approach- ing, and omits to do so, it invites persons to cross the line, and thereby puts them off their guard (a;), and is lia- ble for the injuries which ensue. The question of " invit- ation " or not/is a question of evidence into which we need (r) WUlonghby v. Horrldse, 12 O. B. Smith v. Steele, L. B. 10 Q. B. 12S ; 44 L. 742. J. Q. B. 60; Smith v. London and St. («) Lancaster Canal Co. v. Famaby, Katharine Docks, L. B. 3 C. F. 326; 37 11 Ad. & S. 243, per Tindal, C. J.; [see L. J. C. F. 217; Wright v. London and Graves v. Thomas, 96 Ind. 361; 48 Am. N. W. By. Co., L. B. 1 Q. B. D. 252; 45 Eep. 727]. L. J- Q. B. 570. (O Holmes v. N. E. By. Co., L. B. 6 (a;) N. B. By. Co. v. Wanless, L. B. 7 Ex. 123; 40 L. J. Ex. 121; Indermanr v. E. L. 12; 43L. J. Q. B.185; seealsoStap- Dames, L. B. 2 0. F. 3U; 36 L. J. 0. F. ley «. L. B. & S. E. By. Co., L. B. 1 Ex. 181. 21 ; 86 L. J. Ex. 7. As to level crossings, (11) White V. France, L. B. 2 C. F. see Bailyays Clanses Act, 1863. D. 308; 46 L. J. C. F. 823. See also 282 MORE THAN ORDINARY CARE. not enter at greater length. The question chiefly con- sidered here is, when an invitation has been shown, what sort of negligence will render the inviter liable for damages . Section III. Neglect of Duties of Owners of Dangerous Animals. We have seen, ante, Ch. II., s. 3, that owners of " sav- age " animals, such as lions, tigers, etc., must keep them at their peril, and also that the owners of ordinary " tame " animals must exercise the ordinary care with respect to them which is suited to their particular nature and habits. There is, however, a class of animals differing from each of these, and which we have denominated '• dangerous." We intend by this expression those kind of animals which may be and often are, as a class, dangerous (such as bulls), and also those particular animals of which the class may be harmless, but the animal itself is not so (as dogs or cats). We have also remarked that where the class of animal is harmless the owner is not answerable in an action of negli-^ gence for injurious acts done by this particular animal, contrary to the nature and habits of its class, unless he was aware of such mischievous disposition (m)m which [229] case the law says he must, as in the case of a savage animal, keep it at its peril (n). Where the ques-^ (m) Mason v. Keeling, 1 Ld. Baym. bldge, 13 0. B. N. S. 430; 32 L. J. C. F. 606; Baxendln v. Sharpe, 2 Salk. 662 89 (hoise kicking child), (ball running ,at a man) ; Cox v. Bar- (») Aiite, p. 123. (m) Murray v. Young, 12 Bush, 337; Dearth b. Baker, 22 Wis. 73; Laverone v. Mangianti, ii Cal. 138 ; Van Leuven v. Tyke, 1 N. Y. 515 ; Wormly v. Gregg, 66* 111. 251; Marsh «. Jones, 21 VJ;. 378; Kittredge ». Elliott, 16 N. H. 77; Woolf v. Chalker, 31 Conn. 121; Elder o. White, 65 N. Y. 64; Partlow v. Hagarty, 35 Ind. 178. (n) McGiiire c. Ringrose. 41 La. Ann, 1029; 6 So. Rep. 896; Bey- ANIMALS. 283 tion of scienter arises and the liability becomes absolute, the question of " negligence " does not arise. It therefore remains only to consider the case where a person has the control of animals which are notoriously " dangerous ; " and it seems most reasonable that he should exercise with respect to them something more than ordi- nary care. He has undertaken to control a sort of animal which notoriously demands more than ordinary care, and accordingly the law imposes a corresponding duty upon him. The particular acts necessary to control such an anima] will vary according to circumstances. Where an agister of cattle placed the plaintiff's horse in a field where a bull was in the habit of coming, and the bull gored the horse, it was held that there was negligence, although the agister was not aware that the bull was vicious. There was " a contract to take reasonable care, and the doctrine of scienter ought not to be extended to a contract to take reasonable care " (o). Horses in a street also require more care than in a country road, for they may take fright and injure the passers-by (p). A bull in a street has beeu said to require (o) Smith V. Cook, 1 Q. B. D. 79. (jT) Lynch v. Noxdih, 1 Q. B. 38, was a case of this sort. noIds V. Hnssey, 61 N. H. 64; 5 Atl. Bep. 458; Conway v. Grant, 88 Gaw 40; 13 S. E. Rep. 803; Hammond v. Melton, 42 III. App. 186; Lettis v. Homing, 67 Hun, 627 ; 22 N. Y. S. Bep. 666, distingaishing Atwater v. Lowe, 39 Hun, 160, and Van Slyck v. Shell, 6 Laws, 302; MoCasMllB, Elliott, 5 Stroth. 196 ; ante, p. 124 ; but see Cooley on Torts, 2d ^d., p . 409 ; Webb's Pollock on Torts, p. 613; and dissenting opinion in Lavaroni v. Mangianti, 41 Cal. 138. (o) Carpenter v. Latta, 27 Ean. 691. (p) Leaving a horse unfastened or unattended in a public highway is negligence. — Buckingham v. Fisher, 70 111. 121 ; Norris v. Eohler, 41 N. Y. 42; Loeser v. Humphrey, 41 Ohio St. 378; Gray v. Second Avenue R. Co„65N. Y. 561; Devilleo. Southern Pacific E. Co., 60 Cal. 3^3. But it has been held not contributory negligence for one peddling kindling wood to leave his horse untied and go a short distance from the 284 MOKE THAN OBDINAEY CABE. the utmost care (q),'ma field it would require less ; but in any case it is submitted that something more th^n the ordinary care required to control animals of a harmless or domestic character must be used. It seems to be doubtful whether a bull is a dangerous animal (r): In the argument in Mason v. Keeling (s), cases are men- [230] tioned where an action was held maintainable with- out alleging scienter, viz., a case of a pair of young horses ; an ox getting loose from a stall; a monkey biting a child; and a chained fox ; and it was replied that, whatever might be the case with respect to those animals, a dog is a domestic animal, and does not require such a guard to be set over it as other animals which are not so familiar to human kind, and consequently may be supposed to be (5) Ficten v. Jones, 28 Oal. 61B; but (r) See Wharton, s. 910. see infra, TlUett v. Ward, 10 Q. B. D. 17: (s) Mason v. Keeling, 1 Ld. Baym. — [Baird v. Vaughn (Tenn.), 16 S. W. 606. Eep. 734]. wagon to solicit a customer. — Wasmer v. Delaware, etc., R. Co., 30 N. Y. 212; 36 Am. Rep, 608. See Southworth v. Old Colony, etc., K. Co., 106 Mass. 342. A person wbo drives an unmanageable and vicious stallion into a number of vehicles standing near the highway at a county fair is responsi- ble for the damage done.— Clore v. Mclntire, 120 Ind. 262; 22 N. E. Bep. 128. (s) But where the cow of defendant, which was in charge of a drover employed by him, while passing along the street ran to the side of the road and without any negligence on the part of the drover broke in the plain- tifi's door which was shut and latched, the defendant was held liable. The court distinguished the case from Tillett v. Ward, saying, " But it seems to me that it would carry the exception much too far to hold that a person who closes and fastens the door of his house in the usual and ordinary way loses his right to claim immunity from invasion of this kind."— County Court of Old Chester. See 12 LsjwBuU. 279. See Hill V. Applegate, 40 Kan. 31; 19 Pac. Rep. 815. (t) Scott V. Groves, 56 Vt. 499 ; 48 Am. Bep. 814 ; Glidden o. Moore, 14 Neb. 84 ; 45 Am. Rep. 98 ; Meier o. Shrunk, 79 la. 17 ; 44 N. W. Bep. 209. (u) Graham v. Payne, 122 Ind. 408; 24 N. £. Rep. 116. Whart. on Neg., §911; Cakes «. Spaulding, 40 Vt. 847. By statute in that State proof of scienter is dispensed with between August 1 and December 1. — Town V. Lampbire, 87 Vt. 62. ANIMALS. 285 more easily irritated to do mischief. And in the judgment of Holt, C. J., it is said, " For there is a great difference between horses and oxen in which a man has a valuable property and which are not so familiar to mankind, and dogs. The former the owner ought to confine, and take all reasonable precaution that they do no mischief, other- wise an action will lie against him ; but otherwise with dogs before he has notice of some mischievous quality." In TiUett' v. Ward, an ox was being driven through the streets and entered the open doorway of the plaintiff's shop and damaged his goods. The County Court judge found that there was no negligence, and the Divisional Court held that the defendant was not liable. They said that the owner of animals in a field is bound to keep them from trespassing, but when an injury is done by them whilst on the highway, or on unfenced land immediately adjoining the highway, the owner is not liable unless [231] negligence is proved (s). It has been held, how- ever, that a scierUer must be proved to make a man liable for his bull running at another man {t)i and the same has been held with respect to rams (u). In the case of a mon- key (a;), it seems that the sort of knowledge which woul4 affect the defendant's liability was more one of. general knowledge of the propensities of that kind of animal, though particular knowledge was no doubt alleged. Section. IV. Neglect of Duties by Owners of Dangerous Goods, <£c. There can be no doubt that the owners or controllers of dangerous goods are bound to exercise more than ordinary (() TlUett V. Ward, lOQ. B. D. IT; [see (u) Jackson v. Smiliison, 16 M. & W. infra]. 561- (() Hudson v. Boberts, 6 Ex. 699 ; 20 (x) Ma7 v. Bnrdett, 9 Q. B. 101. L. J. Ex. 299; [see infra]. 286 MORE THAN ORDINARY CARE. care, as for instance iu the use of a gun (y), or in the use [232] of fireworks {z); for they have not only takeif (jf) Dixon V. Bell, 6 M. & S. 198 (allow- Clark ». Obambers,!? L. J. Q. B. 429; L. Ing girl to take a gan),and seedier Lord R. 3 Q. B. D. 32^. Denman In Lynch v. Nurdin, 1 Q. B. 29 ; Dean ©.Clayton, 7 Taunt. 488 (defendant (a) See Scott v. Shepherd, 2 W. Bl. intentionally, not carelessly, pat dog 892 (trespass by throwing a aqnlb); King spikes in his wood, trespass) ; bnt see «. Ford, 1 Stark. 421 (negligence In Jotdin». Crtimp,8 M. & W. 782; Ilottv. schoolmaster allowing pnpUs to nse flre- Wilkes, 3 B. & Aid. 304 (spring gnns); works) .-^ [Jenne v. Sntton, 43 K. J. L. Bird ». Holbrook, 4 Blng. 628 (spring 257; 39 Am. Rep. 578; Bradley ti. An- gan, plaintiff trespasser) ; Shearman, 88. drews, 51 Vt. 530; Flak v. Wait, 104 21 and 687; see these cases commented Mass. 71; Calvin v. Peabody, 155 Mass. on in Lynch v. Xnrdin, 1 Q. B. 29; andin 104]. (j/) Neglect, of Duties by Owners of Dangerous Goods. — Morgan V. Cox, 22 Mo. 373 (plaintiff's servant shot by careless handling of gun). Castle V. Duryea, 42 Barb. 480; afHrmed 2 Abb. Ct. App. 327 (colonel of regiment held liable for injuries by firing at regimental drill). But not after he bad dismissed his command. — Moody v.' Ward, 13 Mass. 219. See Webb's Pollock on Torts, pp. 616, 618, citing Conklin v. Thomp- son, 29 Barb. 218; Cole v. Fisher, 11 Mass. 137; Chatalgne v. Bergeson, 10 La. Ann. 699; Chiles v. Drake, 2 Mete. (Ky.) 151, and other cases. (c) Poisonous Drugs. — Norton ». Sewell, 106 Mass. 143 (selling laudanum for tincture of rhubarb). Walton V. Booth, 34 La. Ann. 913 (selling sulphate of zinc for epsom salts). Brunswig 'i. White, 60 Tex. 604; 8 S. W. Eep. 85 (selling morphine for quinine) . Quinn v. Moore, 15 N. T. 432; Hansford v, Payne, 11 Bush, 381; Davis V. Guamieri, 45 Ohio St. 470; 15 N. E. Eep. 350; Thomas ». Win- chester, 2 Seld. 397. In Fleet v, HoUenkamp, (13 B. Mon. 219), defendant was held abso- lutely liable, notwithstanding any degree of care that he should have used for his mixture of poison with ordinary drugs. Where a statute made it criminal to sell poison without a label, one who sold it without a label but who warned the purchaser of its char- acter, ^as held not liable iu a civil action, if the purchaser failed to heed the warning and took an overdose. — Wohlfahrt v. Beckert, 92 N. Y. 490; 44 Am. Bep. 406. In Gwynn v. Duffield, (66 la. 708; 24 N. W. Rep. 523), it was held that where a person went with a prescription to an apothecary to have the medicine called for put up, and the apothecary made a mistake in the drug and led the person to believe the jar from which the drug was taken contained the drug he wanted, and he proceeded to help himself, DANGEROUS GOODS. 287 upoa them a matter or business requiring great care, but tiie law, haviug regard for human life and safety, demands great care from them. This policy of the law applies, as we have already pointed out, to other matters besides dan- gerous goods, viz. : to a dangerous use of real property (a). It may even be doubted whether in some cases it would not be held that a man must keep dangerous goods at his own peril. Where a prudent man would reasonably fore- see great danger there he would also exercise great care, and culpable negligence is, as we have said (6), doing an act which a reasonably careful man would foresee might be productive of injury and which he would abstain from doing. So persons are bound to use the very greatest care in the use of poisonous drugs (c), or highly explosive ma- [233] terials (d), or materials otherwise dangerous or (a) Supra. grpand (amongst others) that he was (b) Ante, p . 1. bcrand to exercise more than ordinary (c) Sbearm, a. 592. In Thomas et uxor care. In Heaven t>. Pender, Brett, M. V. Winchester, 6 N. T. 397, the defendant ' B., said he doubted whether the case of sold throDf^h his assistant a bottle of Thomas v. Winchester did not go too belladonna for dandelion to a drnggist far; see his jndgtaient; an) Grayv. Pallen,6fi.&S.9T0;34L. walk Gaslight Oo. o. Boroagh ot Nor- J. Q. B. 265; Hole v. Sittlngboorne By., walk, 63 Conn. 495 ; 28 Atl. Bep. 32]. 6 H. & N. 488; [Shearman & Bedf., §§ 15, (Z) Jones V. Bird, 6 B. & A. 837, per 84; Wharton, § 441; 2 Thompson on Neg. 904; see infra]. (m) In Circleville v. Neudlng, (41 Ohio St. 265), the Court said: "It Is contended on behalf of the city that It is not liable for the loss of the horse, because the cistern was in process of construction by an inde- pendent contractor when the injury occurred. The relation between the city and Brandt was clearly that of employer and Independent contractor, and the rule is generally that for injuries occurring in the progress of work carried on by parties in that relation the contractor alone is liable. But this liability is limited to those injuries which are collateral to the > work to be performed and which arise from negligence or wrongful act of thQ contractor or his agents or servants. Where, however, the work to be performed is necessarily dangerous, or the obligation rests upon the employer to keep the subject of the work in a safe condition, the rule has no application. This distinction has been taken in this State in a number of cases. — Carman v. Bailroad Co., 4 Ohio St. E. 399; Hughes V. Eailway Co., 39 Ohio St. 461; Tiffin v. McCormack, 34 Ohio St. 638, and elsewhere in McCafEerty «. The Bailroad, 61 N. Y. 178; Prentiss v. Boston, 112 Mass. 48; Baltimore v. O'Donneil, 63 Md. 110; Logansport V. l)ick, 70 Ind. 65; Crawford v. Smith, 70Ind. 308; Bobbins v. Chicago, 4 Wall. 457; City of Birmingham v. McOray (Alabama), 4 So. Bep. 630; Village of .lefferson v. Chapman, 27 Hi. App. 43; affirmed, 20 N. E. Bep. 33; 127 111. 438; Belts v. Gloversville, 8N. Y.S. Rep. 795; Turner V. Newburgh, 109 N. Y. 301 ; 16 N. E. Rep. 344; City of Omahas. Jensen, 3SNeb. 68; 52 N. W. Rep. 833. See Beach Pub. Corp., § 1641. " In this case the cistern contracted for was built in a street, was to be COEPOKATIONS PERFOKMINO STATDTOET DUTIES. 293 Where there is a duty imposed by statute, it does not follow that the mere fact that it is not performed is negli- gence. If the omission arises without any default on the part of the corporation, and the statute does not give any iiompensation for injuries arising from such omission, no action will lie (n). It does not, however, follow in all cases that where a statute gives a penalty a right of action is involved ( ante, p. 289). Where a public statute orders the performance of a duty towards a class of persons under a penalty, and an individual is injured by the neglect of the corporation, the mere fact of the penalty does not prevent the action for the private damage, but the whole scope of the Act must be looked at, to see whether it was intended that the penalty should be the only punishment for the breach of duty (o). It was for a long time doubted whether corporations [238] could be guilty of a wrong, although they might commit a breach of contract; but it is now clearly settled that a corporation may be guilty of a trespass or a tort (p) ; and it has been decided that where, either by pre- (.n) Hammond v. St Fancras, L. B. 9 cashlxe & YorkBhlre By. Co., L. B. 8 Ex. C. P. 316; « L. J. C. P. 157; [Whart. S 283; 42 L. J. Ex. 182; [Whart., § 443; 1 259]. Thompson on Neg., p. 557, note]. (o) It Is submitted that this is all tbat (p) Per Lord Ellenborongh, G. J., can be collected from a comparison ot Yarborongh t>. Bank of England, 16 East, the following cases: Conch v. Steel, 3 7; [Angel & Ames on Corporations, 10th E. & B. 402; Atkinson v. Newcastle Ed., §§ 385-389; Shearman & Bedf., §§ Waterworks Co. (0. A.), L. B. 2 Ex. Div. 119, 135, n; 3 Thompson on Seg., p. 742]. 441; 46 L. J. Ex. 775; Blamires o. Lan- eighteen feet wide and twenty feet deep. Snch an excavation In a street, unless protected to guard persons and animals using the street from fall- ing into It, was necessarily dangerous. The city was under the statutory obligation at the time of the accident to beep its street open, in repair and free from nuisance, and it could not cast this duty upon a contractor, so as to relieve itself from liability to one who should receive an injury. It is primarily liable for an injury resulting from such dangerous place in a street. If it has required the contractor to assume the risk of suQh damage, It may have a remedy against him. But the public in the use of the streets inay rely upon the legal obligation of the city to keep them free from dangerous places, or if such places become necessary to be 294 MOKE THAN OKDINART CAKE. scription or grant, or statute, a duty is imposed upon a corporation, and a matter of general and public concern is involved, the public may enforce those duties by indictment, and individuals peculiarly injured by action {q). Where an imperative duty is imposed upon a corporation; and there is a breach of that duty, the public have remedies by indictment, mandamus, injunction, or action for the wrong done, without any allegation of negJigence being necessary (r), but it is obvious that these matters are [239] beyond the scope of the present work. But be- yond these remedies, where there is an imperative duty imposed upon a corporation, and there is negligence in the mode of performing their duty, or negligence in omitting to perform it (s), then an action for negligence can be maintained against them (s), and more than ordinai-y care will be required of them {t). Where the duty is discretionary merely, the corporation, as we have seen, nnte. Chapter II. s. 5, are not liable for omitting to do what they are not bound to do ; but if they undertake to perform a duty, or to do a work which they are not bound to do, they must exercise ordinary care. Where (as is sometimes the case) a corporation are ' charged with the duty of keeping its streets in repair, and of exercising a general supervision over them, they are (g) Mayor, &a., of Lyme EegiB v, tal exeiclse of statatory poweis, no Benly, 2 Bflng. N. C. 211; [Sheaiman & negligence); Broaghton v. Mid. G. W. Eedf., §§ 130, 145]. of Ireland Co., 7 Ir. E. 0. L. 169 (water (r) See Hammond v. Vestry of St. turned into newer stopped np; Btata- Fancras, infra; [Shearman & Bedl., tory powers, no negligence) ; JoliSe v. §§ 130, US]. Wallasey Local Board, L. B. 9 C. P. 62 (8) If tbere is no negligence shown ' (duty to put down anchors, but bnoys In tbe omission the corporation are not also onght to have been pat to show the liable. Hammond v. St. Fancras, 43 L. spot) ; Field i;. L. and N. W. By. Co. J. C. P. 157 ; L. E. 9 C. P. 316 (overflow of (flow of water In land Impeded ; [Sheax- a sewer); Dnnn v. Birmingham Canal man & Eedf., § 123], Kav., L. B. 8 Q. B. 42; 42 L. J. Q. B. (<) CampbeU on Negligence, p. 18.— 34 (canal overflowed Into mine, law- [UcAndrewsv. Collered, 42N. J. L. 189]. made in the course of an improvement, or work necessary or proper for the city to do, that it shall so guard them that no ordinary injury shall result in the ordinary use of the street." CORPORATIONS PERFORMING STATUTORY DUTIES. 295 bound to keep them free from all obstructions and defects against which due care can guard (m). Where the corporation require private drains to be run into the main sewer, they are bound to take care to keep such sewer open («) ; but where the private owners are not so required, and have not in fact so used the sewer, and have taken no means to prevent an overflow, the corpora- tion are not liable for damage from an overflow of their sewer (y). Where a railway company are bound by statute to put up a fence or gate upon a level crossing, it is negligence to [240] omit to do so, and the company are liable for injury caused by such omission («). Where a corporation are bound -by statute to fence a footpath, they are liable for injury arising from their omission to do so fa). It is not proposed to discuss all the cases in which it has been argued that the statute under which the corporat^ion was acting, did not absolutely and imperatively demand the performance of the duty, but left it to their discretion. These cases turn upon the construction to be given to the particular section of the Act, or clause of the charter, in each case (6). (u) S^e Hlgliwa7B, ante. Oh. II. B. 4, (y) Barry v. Lowell, 8 Allen, 127. Wendell v. Troy, 39 Barb. 329; i Keyes, (a) Williams v. 6. W. Ey. Co., L. E. 261; [Shearman & Bedf., §§ 149 and 9 Ex. 157; 43 L. J. Ex. lOS (child totind 344; 2 Thompson, 753; City of Olney v. with foot cnt ofl; no fence). See this Biley, 39 111. App. 401 ; McCormick v. City matter more fully treated, post. Oh. V., of Amsterdam, 63 Hnn, 632; 18 K. T. S. Contribntory Negligence. Bep. 272; Hazard v. City of Oonncil (a) Ohrby v. Byde Commrs., 33 L. J. BlnfFs, 87 la. 51 ; 53 N. W. Bep. 1083 ; Sey- Q. B. 296. [See as to private roads Eall- monr v. Village of Salamanca, 137 N. Y. road Co. v. Cannlngton, 39 Ohio St. 327 ; 364; 33 N. E. Bep. 304; Fuller v. City of Bond v. EyansTille, etc., E. Co. 100 Ind. Jackson, 92 Mich. 197; 52 N. W. Eep. 301; Evansville, etc.. Go. e. Hosier, 1 N. 1075, OTermling Clark v. Village of North E. Eep. 197, a railroad corporation is not Muskegon, 88 Mich. 308; 50 N. W. Eep. required to show the same degree of 254; Hanley v. City of Huntington, 37 care in fencing as to a private person W. Va. 578; 16 S. B. Eep.807;Pittenger who is crossing over its track, that it V. Town of Hamilton, 85 Wis. 656; 65 N. owes to the public, Louisville, etc., E. W. Bep. 423]. Go. v. Goodbar, S. 0. Ind., 20 Bep, 587]. (x) Child V. Boston, 4 AUen, 41; (6) See the following cases.— Ohrby Shearman, 151; [Whart., § 262]. t>. Byde Commrs., 33 L. J. Q. B. 296; Wil- 296 MORE THAN OEDINAEY CARE, It should be observed that the duty may be imperative as regards the public, and discretionary as regards individuals ; and that words, in terms bestowing a power only, are, when the public interests require it, construed to impose an im- perative duty. In the case of Julius v. Bishop of Oxford (c), the Lord Chancellor said: — " The words • it shall be lawful ' are not equivocal. They are plain and unambiguous. They are words merely mak- ing that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the [241] title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. Whether the power is one coupled with a dutysuch as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen's Bench to decide, on an application for a manda- mus. And the words ' it shall be lawful ' being accord- ing to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists to exercise this power, to show in the circumstances of the case something which, according to the principles! have mentioned, creates this obligation." He continues : — «» Where a power is deposited with a public oflScer for the purpose of being used for the benefit of persons who son V. Halifax, 3 L. J. Bx. 11 ; L. B. 3 Ex. [Dillon on Mnn. Corp., § 919 ; Shearman 11; Hammond v. St. Fancras, supra; A Bedt., § 129] . Dormont v. Fnmess By. Co., supra; (c) Jollnff v. Bishop of Oxford, 5 App. Gas. 211, 223. COEPOBATIONS PERFORMING STATDTORY DUTIES. 297 are specifically pointed out, and with regard to whom a definition is supplied bjr the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised." Lord Selborne said : — " The language (certainly found in authorities entitled to a very great respect), which speaks of the words ' it shall he lawful,' and the like, when used in public statutes, as ambiguous, and susceptible (according to certain rules of construction) of a discretionary or obligatory sense, is in my opinion inaccurate. I agree with my noble and learned friends who have preceded me, that the meaning of such words is the same, whether there is or is not a duty or obligation to use the power which they confer. " They are potential, and never (in themselves) signifi- cant of any obligation. The question whether a Judge or a public officer to whom a power is given by such words, is bound to use it upon any particular occasion, or in any [242] particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the par- ticular provisions, or from the general scope and objects, of the enactment conferring the power." Lord Blackburn said : — " I do not think the words ' it shall be lawful ' are in them- selves ambiguous at all. They are apt words to express that a power is given; and as, prima facie, the donee of a power may either exercise it or leave it unused, it is not inaccurate to say that prima facie, they are equivalent to saying that the donee may do it ; but if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf." The liability of the corporation must, as we have seen, be determined upon a true interpretation of the statute or 298 MORK THAN ORDINARY CARE. charjter under which they are created. If there is a duty not only to make certain works, but also to take proper care and use reasonable skill about the works so as to make them such as the statute or charter authorizes, persons in- jured by the negligence of the corporatii5n to fulfill such duty may maintain an action against the corporation for negligence (d). The true interpretation of such statutes is that a duty is cast upon the incorporated body not only to make the works authorized, but also to take proper care and to use reason- able skill that the works are such as the statute authorizes, or to take reasonable care that they are in a fit state for the use of the public who are to use them (e), and from time to time to do what is necessary to prevent the recurrence of injury (/). [243] The proper rule of construction of such statutes is that, in the absence of something to show a contrary intention, the Legislature intends that the body, the creature of the statute, shall have the same duties, and that its funds shall be rendered subject to the same liabilities as the general law would impose on a private person doing the same thing (g). A person sustaining injury through work authorized by statute is in general only able to recover if he could have recovered for the injury done apart from the statute (h). Care should *be takeh to ascertain accurately in the first place what the duties of the corporation are ; for they are only liable for a neglect of duty, not for an injury arising from something done or omitted to be done in respect of which they have no duty (f). (d) Mersey Docks v. Glbbs, L. E. 1 H. Tmman v. I/. B. & S. 0. Ky. Co., 25 Ch. of L., p. 118, per Blackbnin, J., citing D. 433. Soathampton Bridge Co. v. Soatbamp- c^) Mersey Docks v. Glbbs, nipra, at ton Board, 8 Bll. & Bl. 801, 812. p. 223. (e) Mersey Docks v. Glbbs, supra, at (A) New BlTer Co. v. Johnson, 2 E. & p. 118. E. 435. (/) Geddls V. Proprietors of Bann (i) Oracknell v. Thetford (Mayor ol)> Beservclr, L. E. 3 App. Cases, 438; see L. R. 4 O.P. 629; 38 h. J. C. P. 3S3 (Com- CORPORATIONS PERFORMING STATUTORY DUTIES. 299 If a corporation take toll (k) from the public, and invite them, expressly or impliedly, upon their premises, they are liable, like individuals, for injury arising from the defec- tive state of the premises (I), and therefore, as we have seen {m), they also are bound to use more than ordinary care. Upon this principle railway companies who invite persons expressly or impliedly upon their premises are bound to take more than ordinary care (n). Upon* the other hand, corporations are not liable for any injury which is the inevitable consequence of something [244] done in the course of their duty, but only for such injury as would not have arisen but for their own negli- gence (o). Where a corporation have power to do some work for their own or the public benefit, it is their duty to see that it is carefully done, and, though under their powers they have the right to do an act which is a nuisance, they are bound to do all they can to obviate the mischief (p). It has been held, after many conflicting decisions, and is now settled law that corporations are liable for negligence, whether they derive any ultimate pecuniary benefit or not from the performance of the duty imposed upon them (q). misaionei'8 daty to maintain navigation, Cli.) (towingpath), if ihej were ignorant no duty to clean river so as to prevent of tlie defect, or gave notice to tboee floods) ; and see Hodgson «. Tork who paid toll of tbe defect they wonld (Mayor of), 28 L. T. N. S. 836; Collins not, it seems, be llAble.— [City Conncil V. Mid. Level Commra., L. S. 4 0. P. of Aognsta v. Hudson, 88 6a. 599; 15 S. 279; 38 L. J. C. P. 236; Gibson v. Pres- E. Eep. 678.] ton (Mayor of), L. B. 5 Q. B. 223; 39 L. (m) Ante, p. 276. J. Q. B. 131 ; Hartnell v. Byde Commis- (n) See s. 8, Carriers, stoners, 4 B. & S. 361 ; 33 L. J. Q. B. 39 ; (o) Whitehouse v. Fellowes, 10 O. B. White V. Hlndley Local Board, f^. B. 10 If. S. 765; 30 L. J. C. P. 305; Buck v. Q. B. 219; 41 L. J. Q. B. 114; Dormontv. Williams, 3 H. & N. 308; CrackneU v. Furness By. Co., L. B. W. N. April 21st, Corp. of Thetford, L. E. 4 0. P. 629; 38 1833 ; p . 72 ; 11 Q. B. D. 496 ; Blackmore v. L. J. C. P. 353 ; Di^on v. Metropolitan Vestry of Mile End Old Town, 51 L. J. Board of Works, 7 Q. B. D. 418. Q. B. 496.— [Collins v. City of Waltham, (p) Bex. v. Eerrison, 3 M. & S. 526; 151 Mass. 196; 24 N. E. Eep, 327.] Oliver v. N. E. By. Co., L. B. 9 Q. B. 409; , (,k) It is immaterial, as will be seen 43 L. J. Q. B. 198. infra, whether they make on the whole (g) Mersey Docks v. Gibbs, L. E. 1 a profit from tbe toll, see ante. Oh. II. s. 5. H. L. 93 ; 35 L. J. Ex. 225 ; Coe v. Wise, (2) Winch V. Conservators of Thames, L. B. 1 Q. B. 711 ; 37 L. J. Q. B. 262. L. B. 9 0. P. 378 ; 43 L. J. C. P 167. ( Exch. 300 MORE THAN OKDINARY CABB. If a corporation have notice or the means of knowing ( r ) that the works or premises over which they have control are in a defective state, and they negligently disregard the notice or negligently omit to avail themselves of their means of knowledge, they are liable in an action of negli- gence for injury caused by such disregard or omission (s). Where a corporation have a positive duty to perform it is no answer to an allegation of negligence upon their part that their officers, servants or agents were ordered to do it (J,), nor that they have contracted with a competent person for the performance of such duty (m), but if they go farther and show that the work was done in a com- [245] petent manner, and that the injury was caused by an accident ovvis major they are excused (a;). In order to render a corporation liable for negligence the persons doing the negligent act must be appointed sind removable by the corporation (y) and subject to the con- trol of the corporation (a). But a corporation may render themselves liable for the acts of persons to whom they have given authority to do the particular act in respect of which negligence is alleged, or if they subsequently adopt such act (a). (r) Penhallow v. Mersey Dooks,in/ra; washed away by flood) ; see Shearman Stiles V. Cardiff Nav. Co., S3 L. J. Q. B. ». 373 ef teq., and see vnfra. 310 (acienfer as toTtcioasdoK). Mersey (x) Grote «. Chester and Holyhead Docks V. Gibbs,8upra. By.,>upra; G. W. By. of Canada v. Faw- (8) Fenhallow v. Mersey Docks, 30 L. cett, 1 Moo. F. O. IT. S. 101. — [Haney J. Ex. 329, Ex. Ch. L. B. 1 H. ly. 93; 35 v. City of Kansas, 91 Ho. 334; 7 S. W L. J. Ex. 235; Farnaby ». liancaster Bep. 417; Hsrrlgan v. City of Wilmln^- CanalCo., 11 Ad.&E. 223; Mersey Docks ton, 8 Del. 140; 12 Atl. Bep. 779; Fatr- V. Glbbs, supra; and see Hammond v. lawn Coal Co. v. City of Soranton, 148 St. Fancras Vestry, supra;— [Whitfield Pa. St. 231; 23 Atl. Bep. 1069, following V. Town of CarroUton, 50 Mo. App. 98].— Fair v. City of Philadelphia, 88 Fa. St. see also Shearman, s. 407; [Bee pott, p. 309, and Collins v. City of Philadelphia, 267, notice]. 93 Pa. St. 272; Eannenberg v. City of (t) Scott V. Manchester, 2 H. & N. Alpena, % Mich. S3; 55 N. W. Bep. 614; 204. Taylor v. Yonkers, 105 N. T. 202. (u) Grote v. Chester & Holyhead By. (,y) Shinottl v. Bnmstead, 6 T. B. 646. Co., 2 Ex. 251. As explained In Francis (a) Scott v. Manchester, supra.— [Wal- V. Cockerell, L. B. 6 Q. B. 501 ; 39 L. J. Q. dron «. Haverhill, 143 Mass. 682; Walsh B. 291. See Philadelphia By. Co. v. An- -u. New York, 41 Hun, 299.] derson [94 Pa. St. 361] ; 39 Am. Hep. 787 (a) Smith v. Birmingham Gas Co.. 1. (defective drainage of embankment A. & E. 526; [-3 Thomp. on Neg., § 915; COUPOKATIONS PEEFOEMING STATUTORY DUTIES. 301 Sometimes a corporation are bound by statute to employ a particular person to do particular acts, and such person, although in some sense employed by the corporation, is in fact independent of their control, and acting under other authority. If that be so, of course the corporation are not liable ; but as in the ordinary case of master and servant the difficulty is one of fact, whether the person so acting is the servant of the corporation or not (d). ' Althoagh in the execution of a statutory duty corpora- tions cannot shelter themselves under the person whom they have employed to perform that duty, yet they are not liable, as it would seem, for a mere error of judgment by such person, if they have taken care to select a person of skill. Thus if a corporation assent to a particular mode being adopted in executing a work, whether such mode is suggested by means of plans or otherwise, they are not liable, if they have taken due care to obtain skillful advice on the matter (c). The truth is in such cases there is no Shearmaa & Bedt., § 137.] — [Wilson v. Anderson, 91 Ind. 591; Bice v. Evans- City of Tioy, 135 If. T. 96; 32 K. E. Bep. yiUe, 108 Ind. 7; S3 Am. Bep. 22; Waller 44; affirming UN. Y. S. Bep. 721; Wey- v, Dnbaque, 69 la. 511 ; Yonng jj. City ol month V. City of New Orleans, 40 La. Kansas, 27 Mo. App. 101 ; Barron v . City Ann. 314 ; 4 So. Bep. 21S ; Graves v. Booh- of Detroit, 94 Mich. 601 ; 54 N. W. Bep. ester, 39 Hnn, 5; Anderson o. City of 273.] —In City of North Vernon ». Wilmington, 8 Del. 516; 19 Atl. Bep. Vogeler, (Ind.), 25 Am. Law Reg. ]0I, S09]. it was held that a manicipal corpora- (b) Shearman, s. 138. — [Unlcalrs v. tion is liable if the lack of care and JanesviUe, 67 Wis. 24.] skill in devising the plan of a public (c). Snttonv. Glarke,6Taant. 29; [Ur- improvement is so great as to cousti- qnhart v. City of Ogdensburg, 91 N. T. tate negligence], 67; 43 Am. Bep. 9; Eozelle v. City of The sabject of the liability of municipal corporations witli respect to its highways may be considered here. Tbe Iiiabillty of Municipal Corporations with Respect to Hlgh- .f^ays — Change of Grade. — While for direct damages a municipal cor- poration Is liable (Stearns v. City of Richmond, 88 Va. 992; 14 S. E. Eep. 847; City of Texarkana v. Talbot, 7 Tex. Civ. App. 202; 26 S. W. Eep. 451; Meinzer v. City of Kacine, 70 Wis. 661; 36 N. W. Rep. 260; Holley 17. Town, etc., Farrington, 63 Conn. 426; 28 Atl. Rep. 613; Hob- son 0. City of Philadelphia, 150 Pa. St. 595; 24 Atl. Rep. 1048; 31 W. N. C. 9; City of Joliet v. Blower, 49 111. App. 464; Contra, Smith v. Village 302 MOEE THAN ORDINAKY CAKE. negligence in fact in any one, none in the selection of the [246] mode, and none in the execution. If there is no of White Plains, 67 Hun, 81; 22 N. Y. S. Bep. 460; Baker v. Town of Slioales, 6 Ind. App. 319; 33 N. E. Eep. 664), if is not liable for conse- quential damages caused by grading or changing the grade of its streets where reasonable care is exercised in performing the work. — 2 Dillon Municipal Corp., 3d ed., § 990, et seq.; Beach Pub. Corp. § 662, citing Transportation Co. v. Chicago, 99 U. S. 635, and other cases, Cumber- land V. Willison, 50 Md. 138. See Northern Transp. C v. Chicago, 99 U. S. 635. In one State, Ohio, municipal corporations are held liable for conse- quential damages whether the work is performed negligently or not. — Akron V. Chamberlain Co., 34 Ohio St. 328; 32 Am. Rep. 367. See Cohen v. Cleveland, 43 Ohio St. 190; Bartley v. City of Cincinnati, 8 Ohio Cir. Ct. Rep. 226. So in Indiana.— City of Lafayette v. Nagle, 113 Ind. 425; 15 N. E. Bep. 1. In any case k liability arises where the work is negligently done and damages accrue therefrom.— Keating v. Cincinnati, 38 Ohio St. 141; 43 Am. Rep. 421 ; Werth e. City of Springfield, 78 Mo. 107; Hendershott v. City of Ottumwa, 46 la. 658; 26 Am. Rep. 182; Mayo v. Springfield, 136 Mass. 10; Broadwell v. City of Kansas, 75 Mo. 213; 42 Am. Rep. 406; Elgin V. Kimball, 90 111. 356 ; City of New Westminster v. Brighouse, 20 Can. S. C. Rep. 520; Parke ». City of Seattle, 5 Wash. St. 1; 31Pac.Bep. 310; Nichols v. City of Dnluth, 40 Minn. 389; 42 N. W. Bep. 84, follow- ing Dyer v. City of St. Paul, 27 Mich. 457; 8 N. W. Bep. 272. Although a municipality is cot liable for errors of judgment in devis- ing a plan of improvement of a street it is liable if the lack of care and skill In devising It is so great as to constitute negligence. — City of North Vernon v. Voegler, 103 Ind. 314; 25 Am. Law Reg. 101. A municipal corporation is not liable for allowing ordinary surface- water to escape through the highway on to adjacent land by changing the grade of its streets.— Wakefield v. Newell, 12 B. I. 75; 34 Am. Bep. 598; Alden v. Minneapolis, 24 Minn. 254; Lynch v. New York, 76 N. Y. 60; Mogarity v. Wilmington, 5 Del. 530; Stewart v. Clinton, 79 Mo. 603; City of Kearney 1). Thoemason, 25 Neb. 147; 41 N. W. Bep. 115; Corcoran V. City of Benicia, 96 Cal. 1 ; 30 Pac. Bep. 798; Miller v. City of Morris- town (N. J.), 20 Atl. Bep. 61. See Beach Pub. Corp., ^g 1151, 1505; cit- ing Stearns v. Bichmond, 81 Va. 746. But it is liable if it collects in channels or drains and throws surface water in a body upon the lands of adjacent proprietors to their dam- age.— Smith V. City Council of Alexandria, 33 Gratt. 208; 36 Am. Eep. 788; O'Brien v. City of St. Paul, 25 Minn. 333; 33 Am. Bep. 470; Gillison V. City of Charleston, 16 W. Va. 282; 37 Am. Bep. 763; Inhabitants of West Orange v. Field, 37 N. J. Eq. 600; 45 Am. Bep. 670; Noonan v. Cify of Albany, 79 N. Y. 470; 85 Am. Bep. 540; North Vernon v. Voegler, 89 CORPORATIONS PERFORMING STATUTORY DUTIES. 303 negligence in the servant, there is none in the master, if the servant is properly selected. Bat if the plan be negligently Ind. 77; Elliott v. City of Oil City, 129 Pa. 570; 18 Atl. Eep. 663; Butler V. Village of Edgewater, 6 N. Y. S. Eep. 174; Stoehr v. City of St. Paul, 64 Minn. 649; 56 N. W. Eep. 250; Eychlicke v. City of St. Louis, 98 Mo. 497; 11 S. W. Eep. 1001; Bohan v. Borough of Avoca, 154 Pa. St. 404; 26 Atl. Rep. 604; 32 W. N. C. 212. See ante, p. 92. But in grading streets and constructing gutters a city is not bound to provide for extraordinary storms. — Allen v. City of Chippewa Falls, 62 Wis. 430; 38 Am, Eep. 748; Pearson ». City (>f Duluth, 40 Minn. 438; 42 N. Y. Eep. 394. And where the injury was occasioned by the concentration and dis- charge of surface water through a culvert of insufficient siZQ and by the fact that the land in question was on a lower level than the street the corporation was held not liable. — Weis v. City of Madison, 76 Ind. 241 ; 39 Am. Eep. 135. Where a municipal corporation by raising the grade of a street de- stroyed the existing drainage and the property of an adjoining land owner was damaged by the collection surface water caused thereby it was held that the city was liable in damages to him, being bound to provide a temporary escape for the water and was not relieved by the construction of a culvert which at once became stopped up. — Boss v. City of Clinton, 46 la. 606; 26 Am. Eep. 169. In an action by the owner of land for damages caused by the city negli- gently allowing soil to obstruct the plaintiff's driveway in the course of improving its streets, it was held the fact that plaintiff's property was benefited by the improvement was no defense. — Martinsville v. Shirley, 84 Ind. 546. Where the owners of adjacent property have made improvements with reference to the established grade, the city is liable for negligently permitting obstructions by reason of which injuries accrue to the jprop- erty owners even though such obstructions leave the property in no worse condition than it was before the city had made the streets. — Powers V. Council Bluffs, 60 la. 197. See Smith v. Board of Com'rs of Wayne County, 60 Ohio St. 628 ; 35 N. B. Rep. 796. As to the Statute of Limitations affecting actions of this kind in City of North Vernon v. Voegler (103 Ind. 314; 25 Am. Law Reg. 101), it is held that where the cause of action is the negligence and unskillfulness of the officers of a municipal corporation in the improvement of a street, the injury is complete and permanent constituting but one cause of action, and in a suit on that cause of action all damages present and prospective may be recovered; and for fresh damages resulting from the improvement, a second action will not lie, criticising and distinguishing Mitchell V. Darley Main Colliery Co., Eng. Ct. App. 24 Am. L. Reg. (N. 304 MOKE THAN OEDINARr CAEB. carried out, then the employers of such negligent servants are liable, although the plan might be good enough (d). (d) See Grote v. Chester & Holyhead SOI, See Thome v. liOndon (Mayor of), Ey. Co., 2 Exch. 261, as explained in I/. B. SBx. 163; 13^. J.Sx. 115. Francis i>. Cockerell, L. B. 6 Q. B., pp. 184, S.) 432, and Brunsden v. Humphrey, Id. 369; S. P., KeU v. City of St. Paul, 47 Minn. 288; 50 N. W, Eep. 83. Sewers and Drains. — A municipal corporation is not liable for a defect in the plan of sewerage. — Eozelle v. City of Anderson, 91 Ind. 691; Johnston v. District of Columbia, 1 Mackey, 427; City of Denver v. CapelU, 4 Colo. 25; 34 Am. Rep. 62; City of Evansvllle v. Decker, 84 Ind. 325; 43 Am. Eep. 86; Hardy v. Brooklyn, 7 Abb. Pr. N. Y. N. Cas 403; Champion v. Town of Crandon, 84 Wis. 408; 64 N. W. Eep. 775 Garratt v. Trustees of Canandaigna, 135 N. T. 436; 32 N. E. Eep. 142; Attwood V. City of Bangor, 83 Me. 582 ; 22 Atl. Eep. 466. But for negli- gence .in either the devising or the adoption of plans for sewerage the corporation is liable. — City of Seymour v. Cummins, 119 Ind. 148; 21 N. E. Eep. 549 ; City of Terre Haute v. Hudnut, 112 Ind. 542 ; 13 N. E. Eep 686; Munk v. City of Watertown, 67 Hun, 261; 22 N. T. S. Eep. 227 Stoddard b. Village of Saratoga Springs, 127 N. T. 561; 27 N. E. Eep, 1030; City of New Albany v. Bay, 3 Ind. App. 321; 29 N. E. Eep. 611 Nor is a municipal corporation liable for injuries caused by sewers of insufficient capacity, when not defectively constructed or left out of repair. — Collins v. City of Philadelphia, 93 Pa. St. 272; Mayor, etc., Americus v. Eldridge, 64 Ga. 524; 37 Am. Eep. 89; Eair v. City of Phil- adelphia, 88 Fa. St. 309; 32 Am. Eep. 455; Springfield v. Spence, 39 Ohio St. 665; Eozelle v. Anderson, 91 Ind. 591; Heesion ». City of Wilming- ton (Delaware), 27 Atl. Eep. 830; Eice v. Evansvllle, 108 Md. 7; 68 Am. Eep. 22; Bear v. City of Allentown (Pa.), 23 Atl. Eep. 1082; Buckley ■ ». City of New Bedford, 155 Mass. 64; 29 N. E. Eep. 201; Costello v. Conshohocken, 8 Pa. Co. Ct. E. 639. See Beach Pub. Corp., § 1148. But the city may become liable after notice. — Harrigan v. City of Wilmington, 8 Del. 140; 12 Atl. Eep. 779. " In Aurora v. Love (93 111. 521), it was held that a city was liable to lot owners for damages caused by the inadequacy of a street culvert. So in Toung v. City of Kansas, 27 Mo. App. 101.) But it is liable for injuries caused by failure to repair or complete the construction of its sewers (Savannah v. Spears, 66 6a. 304; Winn v. Eutland, 62 Vt. 481 ; Hardy v. City of Brooklyn, 90 N. Y. 435 ; Daggett v. City of Cohoes, 7 N. Y. S. Eep. 882; Markle v. Borough of Berwick, 142 Pa. St. 84; 21 Atl. Rep. 794; City of Valparaiso v. Cartwright, 8 Ind. App. 429; 35 N. E. Eep, 1051), and for negligence in constructing (Semple v. Mayor, etc., Vicksburg, 62 Miss. 63; Winn v. Rutland, 62 Vt. 481; Elgin V. Kimball, 90 III. 356; Savannah v. Spears, 66 Ga. 304; Chalkley v. City CORPORATIONS PERFORMING STATUTORY DUTIES. 305 In the case of K-uck v. Williams, it appears that com- missioners had omitted to put up a flap at the mouth of a of Richmond, 88 Va. 402; 14 S. E. Eep. 339; City of Frostburg v. Duffy, 70 Md. 47; 16 Atl. Rep. 642 ; Defer v. City of Detroit, 67 Micli. 346; 34 N. . W. Rep. 680; Butler v. Village of Edgewater, 6 N. Y. S. Eep. 174), oi; maintalniDg them. — O'Gorman v. Morris, 26 Minn. 267; Johnston v. Dist. Columbia, 6 Sup. Ct. Rep. 923. See Princetown ». Gieske, 93 Ind. 102; Savannah v. Cleary, 67 Ga. 153; Post v. Boston, 141 Mass. 189; City of La Salle v. Porterfleld, 188 111. 114; 27 N. E. Rep. 937; Buchanan v. City of Duiath, 40 Minn. 402; 42 N. W. Rep. 204; Fort Wayne v. Coombs, 107 Ind. 76; 57 Am. Rep. 82. See Beach Pub. Corp., §§ 753, 766. If a sewer becomes obstructed whereby damage ensues no responsibil- ity attaches to the corporation except after notice and neglect to repair. — Bannagan v. Dist. Columbia, 2 Mackey, 285J See Johnston v. Dist. Colum- bia, Mackkey, 427; Munk v. City of Watertown, 67 Hun, 261; 22 N. T. S. Rep. 227; Allen v. City of Boston, 159 Mass. 324; 34 N. E. Rep. 519; Spangler v. City, etc., of San Francisco, 84 Cal. 12; 23 Pac. Rep. 1091; City of Champaign v. Forrester, 29 111. App. 117. See Notice, infra. Awnings, Signs, etc. — Municipal corporations are liable for injuries caused by defectively hung awnings over sidewalks (Bohen «. City of Waseca, 32 Minn. 176; Drake v. Lowell, 13 Mete. 292; Day u. Milford, 6 Allen, 98; Bielingw. City of Brooklyn, 120 N. Y. 98 ; 24 N. E. Rep. 389 ; Lar- son V. Grand ForkSjS Dak. 307), as well as the owner (Jessen ». Sweigert, 66 Cal. 182; 4 W. C. Rep. 486), by the fall of a dangerous wall (Parker v. Macon, 39 Ga. 725; contra, 'Bove v. New Orleans, 12 La. Ann. 481), or a tree (Chase v. City of Lowell, 151 Mass. 422; 24 N. E. Rep. 212; but not for injuries caused by defectively hung signs (Hewiston v. City of New Haven, 37 Conn. 475; 9, Am. Eep. 342; Taylor w. Peckham, City Treas- urer, etc., 8 R. I. 349 ; 5 Am. Rep. 578; Gray v. City of Emporia, 43 Kan. 704; 23 Pac. Rep. 944; Laughlin v. Philadelphia (Pa), 21 Atl. Eep. 754), the owner or occupant being liable in such cases. — Salisbury ». Herch- enroder, 106 Mass. 458 ; St. Louis, I. M. & S. Ey. Co. v. Hopkins, 54 Ark. 209; 15 S. W. Eep. 610. See Beach Pub. Corp., § 1612; Elliott on Roads and Streets, pp. 447, 464. Nor for injuries caused by snow falling from adjoining roofs. — Hixon V. Lowell, 13 Gray, 59; Shipley v. Fifty Associates, 101 Mass. 251. In Langan v. Atchison, 35 Kan. 318; 11 Pac. Rep. 38, a municipal corporation was held liable for injuries caused by the fall of a shbw-bill board on a lot adjoining a sidewalk. And in City of Vicksburg v. McLain, (Miss.) 6 So. Rep. 774, a city was held liable for an injury caused by the falling of an overhanging bluff. Blasting in Streets. — A municipal corporation is liable for injuries caused by blasting in the highway where the work is negligently done. — City of Jollet v. Harwood, 86 111. 110; 39 Am. Rep. 17; City of Joliet v. Seward, 99 111. 267; Dean i;. Randolph, 132 Mass. 475; City of Logans- 20 306 MORE THAN OEDINABY CARE. sewer which had been in use there before. The specifica- tion did not mention the flap, except that it said that porta. Dick, 70Ind. 65; 36 Am. Kep. 166; Murphy m. Lowell, 128 Mass. 396; 36 Am. Eep. 381; Weinerw. Hammell, 14 N. Y.S.Eep. 365. Coasting.— Municipal corporations have been held not liable for injuries caused by coasting in streets (Pierce v. City of Bedford, 129 Mass. 534; 37 Am. Kep. 387; Shultz v. City of Milwaukee, 49 Wis. 254; 35 Am. Kep. 779; City of Lafayette v. Timberlake, 88 Ind. 330; Same v. Kose, Id. ill), although the principal authorities know that the street is habitually used for that purpose. — Brumbaugh v. Borough of Bedford, 23 Pittsb. Leg. J. 442. See Steele v. Boston, 128 Mass. 583; Faulkner v. City of Aurora, 85 Ind. 130; 44 Am. Kep. 1; Burford v. Grand Kapids, 53 Mich. 98; 18 N. W. Eep. 571; Hutchinson v. Concord, 41 Vt. 271; Kay V. Manchester, 46 N^ H. 69. See Beach Pub. Corp., §§ 768, 1240; Elliott on Eoads and Streets, p. 465. But where there was an ordinance prohibiting|any sport, play or exer- cise that might produce bodily injury or injure property on any street, etc., a city was held liable for Injuries caused by coasting in its streets. — Taylor ». City of Cumberland, Md. Ct. App., 18 Chicago Leg. News; 19. Proprietor of toboggan slide liable for injury.— Haden v. Clarke, ION. S. Eep. 291. Sidewalks. — A city or town is liable for injuries caused by defects in its sidewalks.— Chicago v. Langlass, 66 111. 361; Market v. St. Louis, 56 Mo. 189; Furnell v. St. Paul, 20 Minn. 117; Atlanta v. Perdue, 56 Ga. 607; Barnes ». Newton, 46 la. 567; Studley o. Oshkosh, 46 Wis. 380; Delgera. St. Paul, 14 Fed. Eep. 667; Osborne i. Hamilton, 29 Kan. 1; City of Chicago «. Chase, 33 111. A^p. 561; Eoe v. City of Kansas, 100 Mo. 190; 13 S. W. Eep. 404; O'Neil v. Village of West Branch, 81 Mich. 644; 45 N. W. Eep. 1023; City of Sherman v. Williams, 77 Tex. 310; 14 S. W. Eep. 130; Bauguss ». Atlanta, 74 Tex. 629; 12 S. W. Eep. 750; City of Lincoln v Smith, 28 Neb. 762; 45 N. W. Eep. 41; Village of Valparaiso v. Donovari, 28 Neb. 406; 44 N. W. Eep. 449; Moon i>. Iowa, 81 Mich. 636; 46 N. W. Eep. 26; Yearanceo. Salt Lake City, 6Utah, 398; 24 Pac. Eep. 284; Dooley u. Sullivan, 112 Ind. 451; 14 N. E. Eep. 566; Young V. WaterviUe, 39 Minn. 196 ; 39 N. W. Eep. 97; Village of Mans- field V. Moore (111.), 16N.E. Eep. 246; Gordon o. Eichmond, 83 Va. 436; 2 S. E. Eep. 727; Pomfrey v. Saratoga Springs, 104 N. Y. 469; UN. E. Eep. 43; Hutchinson ». Olympia, 2 Wash. 314; Kellogg o. JanesviUe, 34 Minn. 132; Dougherty v. Horseheads, 73 Hun, 443; 26 N. Y. S. Eep. 642; Lehn v. Brooklyn, 19 N. Y. S. Eep. 668; McSherry v. Canandalgua, 129 N. Y. 612; 29 N. E. Eep. 821, affirming 12 N. Y. S. Eep. 761. And this is true whether the defects exist in the original construction (Sawyer v. Newbnryport, 157 Mass. 430; 32 N. E. Eep. 658; Smith v. Pella, 86 la. 236; 53 N. W. Eep. 226; Nichols v. St. Paul, 44 Minn. 494; 47 N. W. Eep. 168; City of Portland ».' Taylor, 125 Ind. 622; 25 N. E. CORPORATIONS PERFORMING STATUTORY DUTIES. 307 the new sewer must be " made tight." The contractor supposed he had done his duty by puddling the mouth Kep. 459; Kendall v. Albia, 73 la. 241; 34 N. W. Eep. 833; City of Atlanta V. Martin, 88 6a. 21; 13 §. E. Rep. 805), or In the plan thereof .— Blyhl V. Waterville (Minnesota); 58 N. W. Kep. 817; Rehrey v. Newburgh, 28 N. Y. S. Rep. 916, following Urquhart v. Ogdensburg, 91 N. T. 67, 238; 43 Am. Rep. 91, note; Granger v. Seneca Falls, 45 Hun, 60. But see Betts V. Gloversville, 8 N. Y. S. Rep. 795; Baker v. Madison, 56 "Wis. 374. See Beach Pub. Corp. §§ 1484, et seq. ; Elliott on Roads and Streets, p. 17. In Vermont it is held, that, in the absence of statutory liability, an action for injuries caused by a defect in the sidewalk, cannot be main- tained.— Buchanan V. Barre, 66 Vt. 129; 28 Atl. Rep. 878. See Reed v. Madison, 83 Wis. 171; 53 N. W. Rep. 647. Formerly in Michigan it was the rule, that cities were responsible for defects In streets, bridges, cross-walks and culverts, but not in side- walks. — O'Neil 17. Detroit, 50 Mich. 133 ; Detroit v. Putnam, 45 Mich. 263; Grand Rapids v. Wyman, 46 Mich. 516; Saunders v. Gun Plains, 76 Mich. 182; 42 N. W. Rep. 1008; Alexander v. Big Rapids, 76 Mich. 282; 42N. W. Rep. 1071. The general rule as to defective cross-walks is substantially the same as that of defective sidewalks.-^ Shippey v. Au. Sable, 85 Mich. 280; 48 N. W. Rep. 684; City of Vandalia v. Ropp, 39 111. App. 344. A water plug projecting si|X inches above the sidewalk and known to the street commissioner was held a defect for which the city was liable, (Scranton v. Catterson, 94 Fa. St. 202), so is a plank street crossing when raised two inches above the sidewalk (Glanty v. South Bend, 106 Ind. 305), or a decayed board sidewalk (City of Joliet v. MeCraneyi 49 111. App. 381), or a hole Ave or six inches in diameter in the flagging (Marvin iJ. New Bedford, 158 Mass. 664; 33 N. E. Rep. 606), or a trap- door cover extending four inches above the sidewalk (Village of Evans- ton V. Fitzgerald, 37 111. App. 86) ; but a depression in a sidewalk six and one-half inches in depth, and eight and one-half inches in width was held not such a defect (Witham v. Portland, 72 Me. 639), nor is a step six inches high when made necessary by the topography of the street (Bierman V. St. Louis, 120 Mo. 467; 26 S. W. Rep. 369; see Miller v. St. Paul, 38 Minn. 134; 36 N. E. Rep. 271; Tabor v. St. Paul, 36 Minn. 188; 30 N. W. Rep. 765), nor loose bricks displaced by the action of the elements (Town of Gosport v. Evans, 112 Ind. 133; 13 N. E. Rep. 256), nor a raised cross-walk. — Bigelow v. Kalamazoo,, 97 Mich. 121; 66 N. W. Rep.' 339. In Dubois ». City of Kingston, (102 N. Y. 219; 33 Alb. L. Jour.), it was held that " placing a stepping-stone on the outer edge of a side- walk of a street, leaving plenty of room on the walk for travel, is a , reasonable use of a street for the accommodation of the public, and a city is not negligent in permitting such an obstruction to remain upon the walk. The fact that other persons had been injured by falling 308 MOBB THAN ORDINARY CARE. of the sewer. It was held that the commissioners were liable (e). (e) Euck V. Williams, 3 H. & N. 308, 310. over the stone does not of itself establish that it was improperly placed in the location that it occupied, or that it was necessarily of such a dan- gerous character as to require the interposition of the city authorities to remove it. Such an accident might well take place in reference to any necessary structure connected with the sidewalk or a building thereon which might possibly interfere with persons using the same. It would be extending the rule of the liability of municipal corporations far greater than has yet been done in any decided case, to hold that they are liable for assenting to the placing of stepping-stones on the edge of sidewalks in front of hotels, Btoresj public buildings and private residences. The courts have gone quite far in holding such corporations to a very strict responsibility in reference to accidents caused by a failure of their ofll- cers to keep the streets and sidewalks in a proper and safe condition, but it would be adding to the corporate liability beyond reasonable limits to hold that stepping-stones, which are almost a necessity in providing for the interest, comfort and convenience of the public in the maintenance of walks, avenues and streets, constitute a, nuisance or obstruction, and that corporations are liable for damages by reason of accidents caused thereby.") See Morrassy v. New York, 64 N. Y. Super. Ct. 432. Though the sidewalks have been constructed without authority. — Saulsbury v. Ithaca, 94 N. Y. 27; 46 Am. Eep. 122. See Streeter v. Breckenridge, 23 Mo. App. 244; Sweeney v. Newport, 65 N. H. 86; 18 Atl. Eep. 86. Or constructed by the lot owner. — HiU v. Fon du Lac, 86 Wis. 242; Lambert v. Pembroke (N. H.), 23 Atl. Eep. 81 ; Plattsmouth v. Mitchell, 20 Neb. 238; Kinney v. Tekamah, 30 Neb. 606; 46 N. W. Eep. 835; City of Felora v. Naney, 136 111. 45; 26 N. E. Eep. 645; City of Chicago V. Martin, 49 111. 241 ; Fuller ». Jackson, 82 Mich. 480 ; 46 N. W. Eep. 721 ; McDonald ». Ashland, 78 Wis. '261; 47 N. W. Eep. 434. By its permission.— Bstelle v. Lake Crystal, 27 Minn. 243; Graham w. City of Albert Lea, 48 Minn. 201 ; 50 N. W. Eep. 1108. And though the defect was caused by a third person without the con- sent of the town.— Elkhart v. Eitter, 66 Ind. 136 ; Huntington v. Breen, 77 Ind. 29. See Village of Carterville v. Cook, 29 111. App. 495; affirmed, 129 111. 152 ; 22 N. E. Eep. 14. The ptomise Of the owner to repair, will not release the city from liability.— Smalley v. Appleton, 75 Wis. 18; 43 N. W. Eep. 826. The city has its remedy over against the person causing the nuisance. But he is not concluded by a judgment against the city unless he had notice and an opportunity to defend.— Catterling v. Frankfort, 79 Ind. 547; 41 Am. Eep. 627. COKPOEATIONS PEKFORMINQ STATUTOEY DUTIES. 309 [247] Where a corporation employ an independent contractor to execute work, which it is the statutory duty A party not owning the premises in which he has his office, and to whom, therefore, no dnty accrues as to maintaining the adjacent side- walk, does not, by lifting up a loose board in snch sidewalk and replacing it, render himself liable in damages to one who steps on it thereafter, to his injary. — Davis v. Michigan Bell Telephone Co., 61 Mich, 307; 28 N. W. Eep. 108. Plaintiff need not allege that the city owned the sidewalk, or ordered it to be built or adopted it. — Haire v. Kansas, 76 Mo. 438. And though the lot owner is required to keep the sidewalk in repair, and is subject to a penalty for a failure to do so. — Flynn v. Canton Co., 40 Md. 312; U Am. Sep. 603; Jansen v. Atchison, 16 Ean. 858; Henry V. Sprague, 11 B. I. 456. But see Twp. of Chartiers v. Langdon, 114 Fa. St. 641; 7AtI. Rep. 84. The lot owner is]not liable for injuries caused by defects in the side- walk. — City of Keokuk v. Independent District of Keokuk, 53 la. 352 ; 36 Am. Rep. 226. See Sammins v. Wilhelm, 6 Ohio Cir. Ct. Rep. 565. But where a city charter required the lot owners to keep sidewalks "in agood and safe condition for use," and made them liable for injuries to any person by "reason of a defective sidewalk." The sidewalk in front of defendants' premises had become smooth and slippery by long use, and some third person, with their knowledge, painted it, thus in- creasing its slipperiness. Plaintiff slipped and fell on it sustaining injuries. It was held that the defendants were liable. — Morton v.' Smith, 48 Wis. 265; 33 Am. Rep. 811. So where the property owner neglected to repair a sidewalk so that plaintiff was injured he may proceed either against the owner or the borough. — Borough of Brookville «. Arthurs, 162 Pa. St. 334; 25 Atl. Eep. 551; 31 W. N. C. 357. See McDanelds. Logi, 143 111. 487; 32 N. E. Rep. 423; Thuringer v. New York, etc., E. Co., 71 Hun, 526; 24 N. Y. S. Rep. 1087. Or for injuries caused by natural accumulations of snow and ice. — Vandyke v. Cincinnati, 1 Disney, 532. Or for injuries caused by accumulations of ice formed by water drip- ping from the owner's house, — Moore v. Gadsden, 87 N. Y. 84; 41 Am. Eep. 362; 93 N. Y. 12. But he is liable for injuries caused by his negligence in respect to coal boles or openings in sidewalks. — Calder v. Smalley, 66 la. 219 ; 23 N. W. Eep. 638; Papworth v. City of Milwaukee, 64 Wis. 389; 24 N, W. Eep. 431 (and the city also in this case); Houston v. Traphagan, S. C. N. J., 20 Eep. 411; Grove v. Kansas, 75 Mo. 672; Jennings v. Van Schaick, 108 N. Y. 530; 15 N. E. Eep. 424; Dickson v. Hollister, 123 Pa. St. 421; 16 Atl. Eep. 484; 23 W. N. C. 128; City of Wabasha o, Sonthworth, 64 Minn. 79 ; 65 N. W. Eep. 818 ; Hascom v. Boston, 141 Mass. 242. See Beach Pub. Corp., § 1516. 310 MORE THAN ORDINARY CARE. of the [248] corporation to perforin, the corporation are liable for injuries which arise as a natural consequence But not when the premises are under the control of a tenant and there is no fault on the part of the landlord. — Wolf ». Kirkpatrlck, 101 N. Y. 146; 4 N. E. Rep. 188; Korte v. C. G. Lewis Coal Co., 64 Minn. 630; 66 N. W. Rep. 246. See ante, p. 102 n. In Calder v. Smalley, the. Court said: "The first objection to judg- ment discussed by defendant's counsel is based upon the position that, if plaintiff has any remedy for the injury she sustained, it should be pursued against the city, which is alone liable. Counsel, to support this objection, rely upon City of Keokuk v. Independent Dist. of Eeokuk, 63 la. 352 ; 6 N. W. Rep. 603. In our opinion the distinction between that case.and this is obvious. In that case the injury for which recovery was sought, resulted from the dangerous and defective condition of the sidewalk itself, the construction and repair of which the city, under authority assumed by ordinance, was empowered to require, in this the alleged injuries were caused, not by defective sidewalk, but by a defective scuttle and cover, which were constructed for the private use of defend- ant, either with or without the authority of the city. If constructed and maintained without authority of the city, the scuttle and cover constituted a nuisance, and defendant is liable for all injuries resulting therefrom ; if constructed and maintained with such authority, defendant is liable, in the absence of the care in their construction and repair required by law. See Dill. Mun. Corp., §§ 699, 1032, 1034; Com. ■«. Boston, 97 Mass. 655 j Congreve v. Morgan, 18 N. Y. 84; and cases cited in City of Eeokuk ». Independent Dist. of Keokuk, 53 la. 352 (357) ; 5 N. W. Rep. 503. It will be Observed that the petition bases the claim for recovery both on the ground that the scuttle and cover were made and maintained without authority, and that they were negligently constructed. We need not inquire whether the city may be liable as well as defendant. It is suf- ficient for the purpose of this case to hold that defendant is liable for injuries received by plaintiS, caused by the defective construction of the scuttle and cover, and that the rule of City of Eeokuk v. Independent Dist. of Keokuk does not apply to the facts of this case. It may be said, in reply to the argument of defendant's counsel upon this point, that the case is that of the unauthorized or negligent use of a sidewalk, and that the cover of the scuttle cannot b^ regarded, as claimed by counsel, as only a part of the sidewalk. The negligent or unauthorized use of a part of the sidewalk as a cover for the scuttle rendered defendant liable for the injuries, just as he would have been liable in case he hadj in a like manner, used, for his own private benefit, a part of the sidewalk for any other purpose." Ordinances requiring the owners or occupants of property to keep their sidewalks clear of ice and snow, under a penalty, have been upheM as constitutional. — Bensal v. Mayor, etc., 19 Ohio, 418; Pazon v. Sweat, MUNICIPAL COEPORATIONS — SIDEWALKS. 311 of the work [249] ordered to be done having been done without proper safeguards ; but they are not liable for the 13 N. J. L. 196; Goddard Pet., 16 Pick. 504; contra, Gridley v. City of Bloomington, 88 lU. 554; 30 Am. Eep. 566; Chicago o. O'Brien, 111 lU. 532 ; 17 Chicago Legal News, 39. In Noonan ». Stillwater, (33 Minn. 198 ; 17 Chicago Ijegal News, 222), it was held that a clause in the city charter of Stillwater, which provided that adjoining owners should be liable for injuries resulting from a neglect to keep their sidewalks in repair so far as it assumed to make the owners liable to others than the city was nnconsliitutional. Snow and ice suffered to remain in an uneven and rounded form on sidewalks are such defects as may render the city liable for injuries received by foot passengers (Dooley v. City of Meriden, 44 Conn. 17; 26 Am. Eep. 433; Billings v. Worcester, 102 Mass. 329; Cook v. City of Milwaukee, 24 Wis. 270; Foxworthy v. Hastings, 31 Neb. 825; 48 N, W. Bep. 901; City of Champaign v. Jones, .32 111. App. 179, affirmed i)i 23 N. E. Rep. 1125; Foley v. Troy, 45 Hun, 396; Boulder v. Niles, 2 Colo. 416; Johnson v. Glens Falls, 62 Hun, 618; 16 N. Y. S. Rep. 585; Keane o. Waterford, 130 N. T. 188; 29 N. E. Rep. 130. See Lawy. Rep. Ann. 178, note), or in other dangerous manner. — Gaylord v. New Britain, 58 Conn. 398; 20 Atl. Rep. 365; Gillrie v. Lockport, 122 N. T. 403; 25 N. E. Rep. 357; City of Lincoln v. Smith, 28,Neb. 762; 45 N. W. Rep. 41; Ayres v. Hammondsport, 7 N. Y. S. Rep. 174; Kinney o. Troy, 38 Hun, 285; Hughes V. Lawrence, 160 Mass. 474 ; 36 N. E. Rep. 485 ; Cosner v. Center- ville (Iowa), 67 N. W. Rep. 636; McDonnell o. Philadelphia, 12 Pa. Co. Ct. E. 672. But the mere slipperiness of a sidewalk caused by sach accumulations is not such a defect as to render the corporation liable for injuries re- ceived by one walking over it. — Grossenbach v. City of Milwaukee, 65 Wis. 31 ; 26 N. W. Rep. 182; Cook v. Milwaukee, 27 Wis. 191 ; Chicago v. McGiven, 78 111. 347; Gibson o. Johnson, 4 111. App. 288; Broburg v. City of Des Moines, 63 la. 523; 50 Am. Rep. 756; Smyth v. Bangor, 72 Me. 249; denkes ». Minneapolis, 42 Minn. 530; 44 N. W. Rep. 1026; Calder v. Walla Walla, 6 Wash. 377; 33 Pac. Rep. 1054; Lawless «. Troy, 63 Hun, 632; 18 N. Y. S. Eep. 606; Hansman v. Madison, 85 Wis. 187; 65 N. W. Rep. 167; Chase v. Cleveland, 44 Ohio St. ,505; Aurora v. Parks, 21 111. App. 459; Chamberlain v. Oshkosh, 84 Wis. 289; 54 N. W. Rep. 618 ; Lyon v. Logansport, 9 Ind. App. 21 ; 35 N. E. Rep. 125; 32 N. E. Eep. 582 ; Damon v. Boston, 149 Mass. 147 ; 21 N. E. Eep. 235 ; Einney v. Troy, 108 N. y. 567; 16 N. E. Eep. 728; Kaveny b. Troy, 108 N. Y. 571; 15 N. E, Eep. 726; Hanson o. Warren (Pa.), 14 Atl. Eep. 405; Fairgrieve V. Moberly, 39 Mo. App. 31 ; contra, Cloughessy o. City of Waterbnry, 51 Conn. 405; 50 Am. Eep. 38; Kinney v. City of Troy, 38 Hun, 285. In Grossenbach v. City of Milwaukee, supra, the court said : " This court has gone to the extent of holding, in effect, that when a sidewalk 312 MOEB THAN OBDINART CAEE. incidental negli- [250] gence of the contractor and his servants during the process of carrying out such work, the is so constructed as to be, with the ice and snow that would ordinarily accumulate upon it in winter, unsafe to travel thereon with ordinary care, then it is defective.— Hill v. Fond du Lac, 56 Wis. 248; U N. W. Rep. 25; Stilling v. Town of Thorp, 54 Wis. 637; 11 N. W. Rep. 906. This is substantially the ruling in the Massachusetts cases cited by counsel. The Connecticut court professes to have established a more stringent rule as to cities. — Cloughessy v. Waterbury, 51 Conn. 405. But none of the cases seem to go to the extent of holding that mere slipperiness, result- ing wholly from natural causes, constitutes a defect. — See the cases in this court above cited, and Cook v. Milwaukee, 24 Wis. 270; 27 Wis. 191; Stanton v. Springfield, 12 Allen, 566; Billings v. Worcester, 102 Mass. 329. The mere fact that there was melting snow and water passing along the gutter, and over the cross-walk and apron, westerly along Oneida street, can not be regarded as a defect, under the circumstances stated. Such melting snow and water had to go somewhere, and ordi- narily must go along the surface of the street." And in Kinney v. City of Troy (38 Hun, 285), Learned, P. J., said: " In examining the Massachusetts case in Stanton v. Springfield, 12 Allen, 566, and Luther «j. Worcester, 97 Mass. 268, and the like, which are strongly urged on us by the defendant, we racist notice that the liability there sued upon is statutory. In the latter case, at page 271, it is said: ' It can not be supposed that the legislature in making towns liable for damages caused by defects in highways intended,' etc. And it will be seen by ref- erence to the former case that the statute is one which applies to towns and cities, requiring them to keep roads ' safe and convenient,' and the argument of the court is that towns could not be required to keep roads free from ice. But the only liability under which our cities are Is one which arises from the common-law principle of liability for negligence. There is not an absolute duty to keep roads and streets safe and conve- nient. But there is a duty not to be negligent. And the question of negligence is one tor the jury, as has often been said. I am aware of the danger that juries may sympathize with the injured plaintiff, and may be unjust to the corporation. But that is one of the imperfections of the tribunal, which the people have established. It is no less the liable lawful tribunal. Now I cannot see that a smooth surface of icy sidewalk may not be just as dangerous as a ridgy surface. And if the city is liable when it knowingly permits a ridge of ice to continue on a sidewalk on which a person falls, it must be liable when it knowingly permits a smooth piece of ice to continue, and a similar accident happens. The doctrine of Todd V. City of Troy (61 N. T. 506), does not rest upon the particular shape in which the ice existed. It rests on the duty to exercise an active vigilance to keep the streets in a reasonably safe condition. And such has been the doctrine of the numerous cases which have followed that. SIDEWALKS. 313 mode of doing which is no part of the order of the corpo- ration (f). (/) Gray v. Pollen, SB. &S. 970; 34L. J. Q. B. 446; Hole «. The Sittlngbonme J. Q. B. 265 ; Shearman, s. 142 ; Wharton, Ky. Co., 6 N. & N. 488 ; 30 L. J. Ex.- 81 ; [2 279 ; Hill V. New Elver Co., 9 B. & S. 303 ; Thompson on Seg., p. 904]. Bower D. Peate, L. E, 1 Q. B. D.321; 45 L. In MuUer v. Newburg (32 Hun, 24), a majority of the court held that when ice formed on Thursday, and the plaintiff fell and was injured on Sunday, there was not evidence for the jury on the question of presump- tive notice to the defendant. I think great difficulty will be found if the courts attempt to declare, as law, what time the obstruction must have existed in order to permit the question of notice to go to the jury. The court in the present case carefully charged the jury that the mere fact that there was an icy sidewalk was not sufficient: that the question was whether the city had exercised that vigilance which should be exercised under the circumstances. I cannot see that such vigilance should be directed only to uneven, and never to smooth ice." Bockes, J., said: " The defendant was bound to keep and maintain its streets in a reason- ably safe condition for public travel, and this as'regards impediments to safe travel, whether because of actual obstructions, as in the case of hammocks and dangerous obstructions of every kind of a material char- acter, as also because of holes and slippery surfaces. The particular form of the obstruction which may be claimed to be dangerous or other- wise cannot be declared as matter of law ; that must depend entirely upon the proof as to what caused the injury. A smooth slippery surface may be dangerous to the traveler, and such condition of danger should be remedied in a case like the present, or liability for Injuries to him because of it would follow, so be it that the city had notice, actual or construct- ive, and in due time after notice omitted to remedy it or to give needful warning of the danger, the injured traveler himself being free from fault. I am clearly of the opinion that this case was for the jury on the proof." Landon, J., dissented. Though constructed with a step at a change of grade. — City of Chicago V. Bixby, 84 111. 82; 25 Am. Rep. 429. Or of cobble stones laid between flat stones of a street crosswalk. — .Borough of Mauch Chunk v. Kline, 100 Pa. St. 119; 45 Am. Eep. 364. But where one was Injured by falling on a portion of a city sidewalk made of glass and iron and worn smooth and slippery, solely in conse- quence of its smoothnees, it was held he could maintain an action against the city. — Cromarty v. City of Boston, 127 Mass. 329; 34 Am. Rep. 381. So where bricks in the sidewalk were sunken so that a pool formed therein and froze. — McDonnell v. Philadelphia, 12 Pa. Co. Ct, R. 672. While ownership alone of sidewalks by municipalities may render them liable for injuries caused by defects therein, control, even without ownership, always makes them liable. — Shannon v, Tama City, 74 la. 22; 314 MOKE THAN OKDINAEY CAKE. [251] Where a corporation have been sued and have paid damages by reason of the contractor's negligetice in 36 N. W. Rep. 776; Village of Mansfield v. Moore, 124 111. 133; 16 N, E. Rep. 2t6; Osborne v. Detroit, 82 Fed. Rep. 36; Chapman v. Milton, 31 W. Va. 384; 7 S. B. Rep. 22. Contributory Negligence. — Knowledge of the defective condition of , a sidewalk does not preclade one from recovering damages for injuries received by walking over It, in the exercise of due care.— ' Maultby ». Leavenworth City, 28 Kan. 745; HcKenzie v. City of Northfield, 30 Minn. 456; City of Bloomington v. Chamberlain, 104 111. 268; Village of Clay, ton V. Brooks, 31 111. App. 62; 37 N. E. Rep. 574; City of Flora v. Naney, 31 III. App. 493; affirmed in 26 N. E. Rep. 645; Argus v. Storgis, 86 Mich. 344; 48 N. W. Rep. 1085; City of Columbus v. Strassner, 124 Ind. 482; 25 N. E. Rep. 65; Corts v. District of Columbia, 7 Mackey, 277; City of Fort Wayne v. Breese, 123 Ind. 581; 23 N.E. Rep. 1038; Langon V. Atchison, 35 Kan. 318; 11 Fac. Rep. 38; Brennan v. St. Louis, 92 Mo. 482; 2 S. W. Rep. 481; Ross v. Davenport, 66 la. 548; City of Peoria v. Walker, 47 111. App. 182; Dittrich v. Detroit, 98 Mich.' 245; 57 N. W. Rep. 125; Smith v. Butler, 48 Mo. App. 663 ; City of Denison v. Sanford, 2Tex. Civ. App. 661; 21 S. W. Rep. 784; Flynn u. Neo8ho,114 Mo. 567; 21 S. W. Rep. 903; 'City of Sandwich v. Dolan, 141 111. 430; 31 N. E. Rep. 416; City of Kinsley w. Morse, 40 Kan. 577; 20 Fac. Rep. 217. (But a degree of care commensurate with the known risk must be exercised by the traveler.— City of Ft. Worth u. Johnson, 84 Tex. 137; 19 S. W. Rep. 361; Norwood v. Somerville, 169 Mass. 105; 33 N. E. Rep. 1108; HoUoway v. Lockport, 7 N. Y. S. Rep. 363; Walker v. Vicksburg, 71 Miss. 899; 15 So. Rep. 132; Smith v. Cairo, 48 111. App. 166; Hall a. Manson, (.Iowa), 58 N. W. Rep. 881.) Even after dark. — Maultby ii, Leavenworth, 28 Kan. 745. Unless its condition is such that a person of ordinary prudence would not venture upon it. — McKenzie «, Northfield, 30 Minn. 456; Hesser v. Grafton, 33 W. Va. 548; 11 S. E. Rep. 211. The fact that one is blind who was injured by falling into an excava- tion when walking along a sidewalk is not conclusive evidence of neg- ligence.— Town of Salem v. Giller, 76 Ind. 291. Or infirm. — Orange City v. Brown, 27 Kan. 74. See City of Mt. Vernon . V. Brook?, 39 III. App. 426. Or of defective vision. — Davenport v. Ruckman, 37.N. Y, 668. See Brackenridge v. Fitchburg, 145 Mass. 160; 13 N. E. Rep. 467. But it is otherwise where the plaintiff was intoxicated at Idie time of receiving the injury.- Lynch ». New York, 47 Hun, 624; McCracken v. Markesan, 76 Wis. 499; 46 N. W. Rep. 323. See Ott v. Buffalo, 61 Hun, 624; 131 N. Y. 694; 30 N. E. Rep. 67; 16 N. Y. S. Rep. 1. And where one knew of the existence of a hole in a sidewalk but was prevented by a blinding snow-storm from seeing it, and sidewalks on other SIDEWALKS CONTEIBUTORT NEGLIGENCE. 315 exe- [252] cuting the work, they can recover against him, if his contract with them expressly , or impliedly streets in the direction in which he was going were equally unsaleji it was held not guilty of contributory negligence. — Aurora v. Dale, 90 111. i6. See City of Omaha v. Ayer, 32 Neb. 375; 49 N. W. Eep. 44B. But where plaintiff knew that a walk was in a bad condition and that on account of the darkness it was imprudent to walk over it, and there was another walk which she might have taken, she was held guilty of contributory negligence in using the unsafe one. — Parkhill v. Town of Brighton, 61 la. 103. S. P., McGinty u. Keokuk, 66, la. 725. But see Finnv. Adrian, 93 Mich. 501; 53 N. W. Rep. 614; City of Richmond ». MulhoUand, 116 Ind. 173; 18 N. E. Rep. 832. And where one attempted in the dark to pass an open cellar-way in a sidewalk knowing, but at the time forgetting, its existence, he was held guilty of contributory negligence in an action for injuries sustained by falling into it. — Bruker v. Town of Covington, 69 Ind. 33; 35 Am. Rep. 202. Mere inattention will not conclude a recovery. — Maloy v. St. Paul, 64 Minn . 398 ; 56 N. W. Eep. 94 ; Dundas v. Lansing, 75 Mich . 499 ; 42 N. W. Rep. 1011. But deep mental abstraction may, where knowledge of the defect is definite. — Walker v. Reldsville, 96 N. C. 382; 2 S. E. Rep. 74.' Where one knew of the existence of a hole in a sidewalk and there was room for safe passage, but no sidewalk on the other side of the street, it was held that he was not necesssarily guilty of contributory neg- ligence in not taking another route when injured by falling into the hole while walking along the side.walk at night. — City Council of Montgomery V. Wright, 72 Ala. 411; 47 Ain. Rep. 422. . While the fact that one could have gone around an ob^struction or defect in the sidewalk instead of crossing it may sometimes be sufficient proof of his contributory negligence (Tp. of Crescent v, Anderson, 114 Pa. 643; 8 Atl. Rep. 379; FuUlam v. Muscatine, 70 la. 436; 30 N. W. Rep. 861; McKeigue v. Janesville, 68 Wis. 50; 31 N. W. Eep. 298; City of Altoona v. Lotz, 114 Pa. St. 238; 7 Atl. Eep. 240; McCue «. Knoxville, 146 Pa. St. 580; 23 Atl. Eep. 439; Lynch o. Erie, 151 Pa. St. 380; 26 Atl. Eep. 43; 31 W. N. C. 65; Wright v. St. Cloud, 54 Minn. 94; 55 N. W. Eep. 819), it is not as a rule conclusive. — City of Sandwich v. Dolan, 34 III. App. 199, affirmed in 24 N. E. Eep. 526, supra; Ball v. El Paso, 5 Tex. Civ. App. 221 ; 23 S. W. Eep. 836; Hartman v. Muscatine, 70 la. 511; 30 N. W. Eep. 859; Morehouse v. Dixon, 39 111. App. 107. One knowing that there is ice on a sidewalk is not necessarily negli- gent in attempting to walk over it in the day or night time and he is bound only to use ordinary care and prudence. — Evan's «. City of Utica, 69 N. Y, 166; 25 Am. Eep. 161; Dewire v. Bailey, 131 Mass. 169; 41 Am. Eep. 219; Pomfrey v. Saratoga Springs, 104 N. Y. 459; 11 N. E. Eep. 43; McGuinnis v. Worcester, 160 Mass. 272; 35 N. E. Eep. 1068; Eichards ». 316 MORE THAN OBDINAEY CARE. bound him to [253] see that such negligence should not occur (g), but such a stipulation does not exonerate the (g) SheaTinan,b. 142,419. Oshkosh, 81 Wis. 226; 51 N. W. Kep. 266; Gilbert v. Boston, 139 Mass. 313; 31N. E. Rep. 734. But when one voluntarily attempts to pass over a sidewalk of a city which he knows to be dangerous by reason of ice and snow which he could easily have avoided, he is guilty of contributory negligence. — Schaefler v. City of Sandusky, 33 Ohio St. 246; 31 Am. Eep. 533; City of Quincy v. Barker, 81 111. 300; 25 Am. Kep. 278; City of Brie v. Maglll, 101 Pa. St. ; 47 Am. Rep. 739; Parker ». Springfield, 147 Mass. 391; 18 N.E. Rep. 70; Twogood v. New York. 12 Daly, 220; Cosnero. Centerville, (Iowa>), 57 N. W. Eep. 636; Kling v. Buffalo, 72 Hun, 541; 25 N. Y. S. Rep. 445; Hausman v. Madison, 85 Wis. 187; 56 N. W. Rep. 167. Deviation from Highway. — An action cannot be maintained for injuries received by deviating from the highway. — Keys v. VUlage of Marcellus, 60 Mich. 439; 45 Am. Rep. 60; City of Scranton v. Hill, 102 Pa. St. 378; 48 Am. Rep. 211 ; Larrabee v. Peabody, 128 Mass. 561; Kel- ley V. Fond du Lac, 31 Wis. 179; Drew v. Sutton, 55 Vt. 686; 45 Am. Rep. 644; Kelly ». Columbus, 4] Ohio St. 263; Monmouth v. Sullivan, 80 111. App. 50; Zettler v. Atlanta, 66 Ga. 195; Ely v. Des Moines, 86 Iowa, 65; 52 N. W. Eep. 476; Brennan v. New York, 67 Hun,648; 22 N. Y. S. Rep. 304; Biggs v. Huntlngton,'32 W. Va. 55; 9 S. E. Rep. 51. But there is no rule requiring a person to remain in the usually traveled portion of the highway. — Ringelstein v. San Antonio, (Tex. Civ. App.), 21 S. W. Rep. 634. If a highway is rendered impassable and there is no other way, one may pass over adjoining lands. — Morey v. ^Fitzgerald, 66 Vt. 487. It is the dnty of a pedestrian knowing the defects to abandon a dangerous sidewalk. — Borough of Sandy Lake v. Forker (?»■•)> ^8 Atl. Rep. 609. Whether he is negligent in doing so is a questioi^ tor the jury. — Ram- sey V. Eushville, 8 Ind. 394. See Joyner v. Great Barrington, 118 Mass. 463; Hart«. Red Cedar, 63 Wis. 634. Where a plaintiff stepped off the street, two feet on adjacent land to a hydrant to draw water, and while so doing with one foot on the street and one foot on the adjacent land was injured by the fall of roofing neg- ligently allowed to stand on its edge, it was held that the city was liable.— Duffy v. City of Dubuque, 63 la. 171. See GulUne v. Lowell, 114 Mass. 491; 11 N. E. Rep. 723. Where a woman in the exercise of due care fell into a gully twenty- eight inchea dee^, close by the sidewalk, which the city had suffered to exist for several years and of whibh she was not aware, it was held that the city was liable for the resulting injuries. — Halpln v. Kansas, 76 Mo. 335. DEVIATION FROM HIGHWAT NOTICE. 317 corporation in the first [254] instance (A), unless, per- haps (i), if they made it absolutely part of the work to be (t) Bower v. Feate, supra. (0 See the jndgment of the Court In Bower v. Feate, supra. And a city may be liable for an accident caused by an obstruction in a traveled path, between the street and sidewalk, if such path is generally used as one of convenience with the knowledge and implied consent of the city. — Aston v. Newton, 131 Mass. 507. A town may be liable for injury sustained by a traveler on a highway, by driving off a steep, unguarded embankment, six inches outside the highway in the dark, the highway being level to that point. — Drew v. Sutton, 55 Vt. 586. And a town may be liable to one injured by falling into an excavation in a lot adjoining a sidewalk, there being no fence or barricade between the lot and the sidewalk, — Bunch v. Edenton, 90 N. C. 431. So, where an elderly woman, unacquainted with the street, to avoid a crowd stepped to the inside of the unprotected walk and fell into a small vacant space between two abutting buildings, the city was liable for her injury. — City of Kansas City v. Manning, 60 Ean. 378; 31 Fac. Bep. 1104. But it Is not the duty of a city to provide means of access from , private property to its streets. — Goodin «. Des Moines, 55 la. 67 (plain- tiff followed a footpath across a vacant lot and fell down an embankment into a street which had been recently excavated. S. P., Mulvane v. South Topeka, 45 Kan. 45; 25 Pao. Rep. 217. And U is not bound to erect barriers to prevent travelers from stray- ing from the highway, although there is a, dangerous place twenty-eight feet therefrom, which they may so reach by straying. — Daily v. Worces- ter, 131 Mass. 432. But the rule is, that the highway must be made rea- sonably safe for travel. — Hudson v. Marlborough, 154 Mass. 218; 28 N. E. Kep. 147; Flagg v. Hudson, 142 Mass. 280; 57 Am. Eep. 674. (Where ahorse tied to a post in a city street became frightened, broke away and ran along the street and plunged down an unfenccd precipice, crossing a street, impassable except by a stairway for foot passengers, and was killed, the city was held not liable. — Moss v. Burlington, 60 la. 438; 46 Am. Rep. 82.; Nor is it bound to maintain railings about areas in front of the base- ment offices and shops upon the streets.^ — Beardsley v, Hartford, 30 Conn. 529; 47 Am. Eep. 677; contra, Landrue v. Lund, 38 Minn. 538; 38 N. W. Kep. 699. Notice. — In order that a municipal corporation may be held liable for injuries caused by defects in the highway, it must be shown to have had notice of the defects, express or implied. — Noble v. Richmond, 31 Gratt. 271; Hoey o. Natick, 163 Mass. 528; 27 N. E. Rep. 595; City of Galveston V. Smith, 80 Tex. 69; 15 S. W. Rep. 589; McNally v. Cohoes, 53 Hun, 202; 318 MORE THAN ORDINARY CARE. done by the contract that a par- [255J ticular thing should be done, which, if done, would render the whole 6 N. Y. S. Rep. 842 ; Miller v. St. Paul, 38 Minn. 134 ; 36 N. W. Rep. 271 ; Town of Rosedale e. Ferguson, 3 Ind. App. 596; 30 N. E. Rep. 156; Pott- ner v. Minneapolis, 41 Minn. 73; 42 N. W. Rep. 784. The municipality is entitled to time to make repairs alter receiving notice of the defect.— Fuller v. Jackson, 82 Mich. 480; 46 N. W. Rep. 721; Town of Montezuma ». "Wilson (Ga.), 9 S. £. Rep. 17; Bingham ^). Boston, 161 Mass. 3; 36 N. E. Rep. 473; Dtttrich v. Detroit, 98 Mich. 246; 57 N. W. Rep. 125. But see Barr v. City of Kansas, 106 Mo. 560; 16 S.W. Rep. 483. The corporation and not "passers-by " must notice such defects and repair them.— Squires ». Chilllcothe, 89 Mo. 226; 1 S.W. Rep. 23; Mitchell 0. Plattsburg, 33 Mo. App. 555; City of Joliet v. McCraney, 49 111. App. 381. SeeMcGraili). Kalamazoo, 94 Mich. 52; 53 N. "W. Rep. 956. (li the defect is in the original construction or from the direct act of the corporation's servants, notice is unnecessary. — Stein v. Council Bluffs, 72 la. 180; 33 N. W. Rep. 455; Golden v. Clinton, 54 Mo. App. 100; City of Lincoln v. Calvert, 39 Neb. 305; 58 N. W. Rep. 115; Lud- low V. Fargo, 3 N. D. 486; 67 N. W.'Rep. 506; Pools. Jackson, 93 Tenn. 62; 23 S. W. Rep. 57; Adams v. Oshkosh, 71 Wis. 49; 36 N. W. Rep. 614; Hughes «. Fond dn Lac, 73 Wis. 380; 41 N. W. Rep. 407; Village of Jefferson v. Chapman, 127 111. 438; 20 N. E. Rep. 33; City of Austin v. Ritz, 72 Tex. 391; 9 S. W. Rep. 884; District of Columbia r. Woodbury, 136 U. S. Rep. 450; 10 S. Ct. Rep. 990; Buck o. Biddeford, 82 Me. 433; 19 Atl. Rep. 912; Smiths. St. Joseph, 42 Mo. App. 392.) Where a sidewalk had been repaired a day before the plaintiff was Injured by a defect therein, it was held that before the city could be made liable, it must appear that the corporate authorities knew of it or that circumstances existed from which notice could be reasonably inferred (Bonine v. Richmond, 75 Mo. 437; see Whitney v. Lowell, 151 Mass. 212; 24 N. E. Rep. 47); and in another case it was held no error to refuse to instruct the iury,that if the defect existed but one day prior to the accident, the city was not liable unless it had actual notice. — Sheel v. Appleton, 49 Wis. 125. But knowledge or notice may be inferred from the character of the defect or the length of time it has existed. — Evansville v, Wilter, 86 Ind. 414; Aurora v. Hillman, 90111. 61; Porter Co. Com. v. Dombke, 94 Ind. 72; City of Murphysboro v. O'Riley, 36 111. App. 157; Id. v. Baker, 34 111. App. 657; Shipley «. Bolivar, 42 Mo. App. 401; McDonalds. Ashland, 78 Wis. 261; 47 N. W. Rep. 434; City of Sterling ». Merrill, 25 111. App. 596; affirmed 124 111. 524; 17 N. E. Rep. 6; Moon v. loni, 81 Mich. 636; 46 N. W.Rep. 25; City of Chicago t». Earrell, 27 111. App. 526: Town of Wheaton v. Hadley, 30 111. App. 564; affirmed, 23 N. E. Rep. 422; MUNICIPAL CORPORATIONS NOTICE. 319 work a perfectly harmless work, and such thing was not done. City of Philadelphia, v. Smith (Pa.), 16 Atl. Rep. 493; 23 W. N. C. 242; Whitfield V. Meridian, 66 Miss. 670; 6 So. Rep. 244; Masters v. Troy, 50 Hun, 485; 3 N. Y. S. Bep.450; Osborne v. Detroit, 32 Fed. Rep. 37; Houston V. Isaacs (Texas), 3 S. W. Rep. 693; Woodard v. Boscobel, 84 Wis. 226; 54 N. W. Rep. 832; Tucker ». Salt Lake City, 10 Utah, 173; 37 Pac. Rep. 261; City of Ottowa v. Stricklin, 45 111. App. 288; Lynch u. Buffalo, 27 N. Y. S. Rep. 303; 6 Miss. Rep. 583; City of Abilene v. Cowperthwalt, 52 Kan. 324; 31 Pac. Rep. 795; Balls «. Woodward, 51 Fed. Rep. 646; Brownlee v. Alexis, 39 111. App. 135; City of Newport v. Miller, 93 Ky. 22; 18 S. W. Rep. 835; City of Fort Wayne v. Patterson, 3 Ind. App, 34; 29 N. E. Rep. 167. Where the city has sufEered a sidewalk built without its authority to remain unsafe for a year. — Saulsbury v. Ithaca, 94 N. Y. 27; 46 Am. Rep. 112. See Alberts v. Vernon, 96 Mich. 649; 55 N. W. Rep. 1022. When a highway was in a dangerous condition for two weeks. — Smido. New York, 49 if. Y. Superior Ct. 126; Montgomery o. Wright, 72 Ala. 411; Foels v. Tonawanda, 75 Hun, 363; 27 N. Y. S. Rep. 113. For three weeks.— Sullivan v. City of Oshkosh, 13 N. W. Rep. 468. Or rendered unsafe by an excavation (Brusso v. Buffalo, 90 N. Y. 679) the city was charged with constructive notice, though In the last case it employed a contractor to do the work. — Id. When the defect had existed for about five to twenty days (City of Griffin o Johnson, 84 Ga. 279; 10 S. E. Rep. 719), or five or six weeks (City of Philadelphia v. Smith (Pa), 16 Atl. Rep. 493; 23 W. N. C. 242), or nine days (Fortin v. Easthampton, 145 Mass. 196; 13 N. E. Rep. 599; or four days (City of Ft. Wayne vi Dnryee, 9 Ind. App. 620; 37 N. B. Eep. 299), or ten hours (Parsons v. Manchester (N. H.), 27 Atl. Rep. 88), or three to twelve days (Naylor v. Mountain Stone Co., 9 Utah, 491; 35 Pac. Rep. 509), or three days' (Town of Monticello o. Kenard (Ind. App.), 34 N. E. Rep. 454), notice is presumed. But shorter periods of time have been held to be insufficient. — Rochefort v. Attle- borough, 154 Mass. 140; 27 N. E. Rep. 1013; Theissen v. Belle Plains, 81 Ii. 118; 46 N. W. Rep.'854; Burns v. Bradford, 137 Pa. St. 361; 20 Atl. Rep. 997 ; 27 W. N. C. 201 ; McPherson v. District of Columbia, 7 Mackeyi 564; Stoddard B. Winchester, 154 Mass. 149; 27 N. E. Rep. 1014; Reed V. Detroit, 99 Mich. 204; 68 N. W. Rep. 44; Butler v. Oxford, 69 Miss. 618; 13 So. Rep. 626; City of Warsaw v. Dunlap, 112 Ind. 576; 11 N. E. Rep. 623; 14 N. E. Rep. 568. And where one while using a pump on a city street fell through the pavement which was laid over a wooden platform owing to the rotten condition of the latter and was injured the city was held chargeable with notice of the defect, it having been shown that the pump had not been re- paired for nine years.— Sherwood v. District of Columbia, 3 Mackey, 276. 320 MORR THAN ORDINARY CARE. [256] A corporation erected baths and washhou^es under 9 & 10 Vict. c. 74. The affairs of the baths, &c., ^ere eon- The court said in this case : " Here is a work created by the District, a well dug and excavated in a highway with a pump In it, yielding water for domestic purposes. It invites the inhabitants of the neighborhood to go there and get their dally supply. The citizens had no notice of the rotten platform beneath covered as it was by an imperishable brick roof. In using this pump they had a right to expect that it was devised with a foundation of brick or material as imperishable. Is the District under the law chargeable with knowledge of the condition of this structure? They put it there and they covered It up ; they dug a hole thirty feet be- low it; they put the brick upon the wood with the knowledge that the latter was perishable. They ought to have known that when they laid these wooden structures, they wepe laying something certain to decay. And although bound to know that this platform was liable to decay, the District made no examination of it for nine years. Here was a complete mantrap with an assurance to the public of security. We hold that the knowledge of these facts was all the notice that was reguired in this case. Where a city constructs a thing of this kind it becomes its duty to watch over it and to protect it or abide the consequences." Notice to a city councilman of a defect in a 'Street of the city is held notice to the city (Sarter v. Town of Monticello, 68 la. 178; 26 N. W. Rep. 129) ; although the councilman Is not at the time engaged In any oflScialact. — City of Logansport v. Justice, 74 Ind. 378; 39 Am. Eep. 79. And knowledge of an alderman of an obstruction near his place of resi- dence in a public street Is notice to the city. — Mayor, etc., of Knoxville V. Bell, 12 Lea, 157. S. P., Cantwell v. Appleton, 71 Wis. 463; 37 N. W. Bep. 813; McKeigue v. Janesville, 68 Wis. 50; 31 N. W. Rep. 298. See City Of Bonham v. Crider (Tex. Civ. App.), 27 S. W. Rep. 419. Knowledge of a policeman of an obstruction in a street Is notice to the city when the police are charged with the duty of removing nui- sances from the streets. — Rehberg v. Mayor, etc., of New York, 91 N. Y. 137; 43 Am. Rep. 657. S. P., Looney «. JoUet, 49 111. App. 621; City of Denver v. Deane, 10 Colo. 375; 16 Pac. Rep. 30._ Notice to a highway surveyor though he did not have charge of that part of the ward in which the defect was located is notice to the city. — Rogers v. Shirley, 74 Me. 144. Notice to one employed to look after the streets (Smith v. Des Moines, 85 la. 725; 51 N. W. Rep. 77; Chase v. Lowell, 151 Mass. 422; 24 N. E. Rep. 212), or a city engineer (Toledo Con. St. R. Co. v. Sweeney, 8 Ohio Cir. Ct. Rep. 298), or a village marshal (Edwards v. Three Rivers, 96 Mich. 625; 56 N. W. Rep. 1003), or an inspector of wires (Bourget ». Cambridge, 159 Mass. 388; 34 N. E. Bep. 455), or a street overseer (Bradford v. Anniston, 92 Ala. 849; 8 So. Bep. ^83), or village trustees MUNICIPAL COUPORATIONS SIDEWALKS EVIDENCE . 321 ducted [257] by a committee, consisting of some of the members of the corporation. The plaintiff was injured (Whipple V. Fair Haven, 63 Vt. 221 ; 21 Atl. Rep. 533), is sufficient notice to the corporation. So notice to a street commissioner or member of common conncil (City of Lafayette v. Larson, 73 Md. 367; McSherry v. Canandaigna, 59 Hun, 616; 12 N. Y. S. Kep. 731; Fuller v. Jackson, 82 Mich. 480; 46 N. W. Kep. 721; City of Columbia «. Strassner, 124 Ind. 482; 25 N. E. Rep. 65; Trapnell v. Red Oak Junction, 76 la. 744; 39 N. W. Rep. 884); to the mayor and city marshal (City of Salina v. Trosper, 27 Kan. 544) ; is notice to the city. But knowledge by .a janitor of a public school-house appointed by a school committee of the city that a coal hole in the side- walk in front of the school house is uncovered is not notice to the city. — Foster v. Boston, 127 Mass. 290. The question of notice is frequently for the jury. — Eunkel v. Chicago, 37 111. App, 385; Fox v. Lansingbnrg, 59 Hun, 617; 13 N. Y. S. Rep. 174; Troxel o. Vinton, 77 la. 90; 41 N. W. Rep. 580; Kirk v. Homer, 77 Hnn, 459; 28 N. Y. S. Rep. 1009; Davis V. Corry, 154 Pa. St. 598; 26 Atl. Rep. 621; 32 W. N. C. 346; Lambert©. Pembroke (N. H.), 23 Atl. Rep. 81; City of Ft. Worth v. Johnson, 84 Tex. 137; 19 S. W. Rep. 361. Evidence.^ In an action against a municipal corporation to recover damages for injuries caused by a defective sidewalk which was in an un- guarded condition, it is competent for the plaintifE to show that while it was in that condition, other like accidents had occurred at the same place. — District of Columbia v. Armes, 107 U. S. 519; Qninlan v. City of TJtica, 74 N. Y. 603; City of Chicago v. Powers, 42 111. 169; Augusta v. Hafers, 61 Ga. 48; House v. Metcalf, 27 Conn. 631; Calkins v. City of Hartford, 33 Jd. 57 ^ Darling v. Westmoreland, 52 N. H. 401; Hill v. Portland, etc., R. Co., 55 Me. 438 ; Kent v. Town of Lincoln, 32 Vt. 591; City of Delphi v. Lowery, 74 Ind. 520; Lombaro. East Tawas, 86 Mich. 14; 48 N. W. 947; Gilmer v. Atlanta, 77 Ga. 688; City of Goshen v. England, 119 Ind. 368; 21 N. E. Rep. 977; Magee v. Troy, 1 N. Y. S. Rep. 24; Pomfrey v. Saratoga Springs, 104 N. Y. 459; 11 N. E. Rep. 43; Osborne v. Detroit, 32 Fed. Rep. 36; City of Bloomington v. Legg, 151 111. 9; 37 N. E. Rep. 696; Golden v. Clinton, 54 Mo. App. 100; Smith v. Des Moines, 85 la. 725; 51 N. W. Rep. 77; contra, Richards v. Oshkosh, 81 Wis. 226; 51 N. W. Rep. 256; Mathews v. Cedar Rapids, 80 la. 469; 45 N. W. Rep. 894: nor where the time is too remote. — Barretts. Ham- mond, 87 Wis. 654; 58 N. W. Rep. 1053; Neal v. Boston, 160 Mass. 518; 36 N. E. Rep. 308. It is not competent for the city to show that no accident had previ- onsly happened in the same place. — Marvin v. New Bedford, 158 Mass. 464; 33 N. E. Rep. 605. But see Smith v. Oilman, 38 111. App. 393. Evidence of subsequent injuries to other-s at the same place is not admissible. —McGrail v. Kalamazoo, 94 Mich. 52; 53 N. W. Rep. 965. 322 MORE THAN ORDINARY CARE. by reason of the [258] improper construction of a drying machine, and it was held the corporation was the proper party to be sued {k). (,1c) Cowley v. SnndeTland, 6 H. & N. 566; 30 L. J. Ex. 127. Evidence of the general condition of the street or sidewalk in the vicinity of the place where the injury occurred is admissible. — Aryman V. Marshalltown (Iowa), 57 N. W. Eep. 867; Masters v. Troy, 50 Hun, 485; 3 N. Y. S. Eep. 450; City of Atchison v. Rose, 43 Kan. 605; 23 Pac. Rep. 561; Dundas v. Lansing, 75 Mich. 499; 42 N. W. Eep. 1011; Armstrong «. Ackley, 71 la. 76; 32 N. W. Rep. 180; Hunger o. Waterloo, 83 la. 559; 49 N. W. Eep. 1028; Smith v'. Des Moines, 85 la. 726; 51 N. W. Rep. 77 ; Shaw v. Sun Prairie, 74 Wis. 105 ; 42 N. W. Rep. 271 ; Guele V. Mankato, 30 Minn. 256 ; 39 Am. Rep. 98 ; City of Topeka v. Sherwood, 39 Kan. 690; 18 Pac Rep. 933; O'Neile. West Branch, 81 Mich. 544; 45 N. W. Eep. 1023; Osborne v. Detroit, 32 Fed. Rep. 36; McConneU v. Osage, 80 la. 293; 45 N. W. Eep. 550. Contra, City of Streator o. Hamil- ton, 49 111. App. 449; Dundas v. Lansing, 75 Mich. 499; 42 N, W. Rep. 1011; Bowles v. Kansas City, 51 Mo. App. 416; Goodson v. Des Moines, 66 la. 255. In Lindsay v. City of Des Moines, (68 la. 368 ; 26 N. W. Eep. 583) , it was held that the care and diligence required of a city in keeping its side- walks clear of snow and ice, and in proper condition, cannot be affected or varied by the number of miles of walks therein, and it is error to give evidence as to the extent of such walks,, or to instruct the jury that they may consider the extent of sidewalk which the city has to look after. The court say ; " In view of a new trial it is proper to say that we think the court should not have allowed the defendant to prove that there are over 150 miles of sidewalk in the city of Des Moines ; and the jury ought to have been instructed that the < extent of sidewalk in the city which has to be looked after may be considered' in deciding whether the city officers used proper diligence In removing the snow and ice. It appears to us that the care and diligence required to keep sidewalks in proper con- dition cannot be affected or varied by the number of miles of walks in the city. If labor is necessary for the purpose, the force should be com- mensurate with the work to be done. In other words, a city with 40,000 inhabitants and 150 miles of sidewalk, should be held to the same degree of care in this respect as the smaller towns with less extent of sidewalk." The case was reversed mainly on the ground that it was error to refer the jury to the pleadings to determine the issues. In an action against a city for an injury caused by a defective side- walk, a record of the proceeding of the council after the accident, con- taining an order to the engineer to examine the walk and report a remedy is held admissible, to show that the city considered the walk defective, and one that it was bound to repair. — Lafayette v. Weaver, 92 Ind. 477. DIRECTORS OF PUBLIC COMPANIES. 323 [259] The party bringing an action of negligence for the breach of a statutory duty must show that the duty was [260] imposed for his benefit, an'd that he has an interest in its due performance (I). And where a statute imposes a duty to prevent a partic- ular mischief, a person cannot make the neglect of such duty the foundation of an action in respect of injuries of a different character to those contemplated by the statute (m ) . Section VII. Nsglect of Duties by Directors of Public Companies. Directors of a company are agents and in some respects the trustees of the company and its shareholders, and the company as principal is responsible for their acts just as in the ordinary case of principal and agent (n). But the (Q strong v. Campbell, 11 Barb. 135. (») Barwick v. English Joint Stock (n) GoTTls V. Scott, L. E. 9 Ex. 12S. Bank, I<. B. 2 Ex. 259; 36 L. J. Ex. 147; Proxiinate Cause. — While plaintifE while in the exercise of due care stepped into a hole left in the sidewalk, and was thereby unavoidably thrown on a railroad track, and in attempting to get np caught his clothes on a spike, and before he conid extricate himself was struck by a passing train and killed, it was held that the city was liable. — Chicago v. Schmidt, 107 HI. 186. Where the horse of a traveler, being frightened by the overturn of his wagon by a defect in the highway, escaped from him, ran ninety rods and collided with another traveler, it was held that the injury of the latter might be the natural and probable consequence of the defect for which the town was liable. — Merrill e. Claremont, 68 N. H. 468. But where one tripped npon a stone improperly in the highway, and fell into a cellar which he maintained as a nuisance, it was held that the town was liable only for the injury sustained from the tripping, and not iae that caused by falling into the cellar. — Lavery v. Manchester, 58 N. H. 414. In Gaudin o. Carthage (59 Hun, 619; 12 N. Y. S. Rep. 796); Johnson V. Philadelphia (139 Pa. St. 646; 21 Atl. Eep. 316; 27 W. N. C. 415) ; and District of Columbia v. Washington Gaslight Co. (20 D. C. 89), the canse was held to be too remote. See ante, pp. 31 et seq. 324 MORS THAN ORDINAKT CARE. agent is also personally responsible for his own negligence, and directors of companies are frequently sought to be [261] made responsible for fraud, misrepresentation, or ' Wilson V. Lord B11T7, 6 Q. B. D. B2!I,per 2 Oh. Tli Em parte Larkln, 1 Ob. D. 666. Brett, L. J.rFergnson v. WllsonfL. B. (n) Angell & Ames on Corp., 10th ed., §§ 297-303. In this country the directors of a corporation occupy a fiduciary re- lation. They are trustees and agents oi the company and Its stock- holders. — European, etc., R. Co. v. Poor, 59 Me. 277; Butt v. Wood, 38 Barb. 188; Bank v. Downey, 63 Cal. 463; Hoyle v. Plattsburgh^ etc., B. Co., 54 N. T. 311; Bent ». Priest, 86 Mo. 475; 25 Am. Law Keg. US; Plaquemines Tropical Fruit Co. v. Buck, 62 N. J. Eq. 219; 27 Atl. Rep. 1094; United Soeiety of Shakers n. TTndeiwood, 9 Bush, 614; Briggs v. Spaulding, 141 IT. S. 147; 11 Sup. Ct. Rep. 924. "Directors are not express trustees. • • * They are mandatories. They are agents. They are trustees in the sense that every agent is a trustee for his principal, and bound to exercise diligence and good faith."— Wallace v. Lincoln Sav. Bank, 89 Tenn, 630; 15 S. W. Rep. 453. But see Marshall v. Farmers' & M. S. Bank, 85 Va. 676; 8 S. E. Rep. 590. And as such are governed by the same rules applicable to trastees and agents. — ^Robinson v. Smith, 3 Paige Ch. 322 ; Wardell v. Railroad Co., 103 TT. S. 657; Jones v. Morrison, 31 Minn. 140; Bliss o. Matteson, 45 N. Y. 22; see Citizens Bid., etc., Ass. v. Coriell, 7 Stew. Bq. 383; Sper- ing's Appeal, 71 Pa. St. 1; Williams v. McKay, 40 N, J. Bq. 197; Hun V. Cary, 82 N. T. 66; Horn Silver Min. Co. 0. Ryan, 42 Minn. 196; 44 N. W. Rep. 66. (o) In this country the directors of a corporation are trustees for its creditors and upon that theory they are held liable for preferring particu- lar creditors of an insolvent corporation, — Richards v. New Hampshire Ins. Co., 43 N. H. 263. For fraudulently diverting the company's assets from its creditors. — Id. And for fraudulent represen tations inducing the purchase of shares. — Wakeman v. Dalley, 51 N. T. 127; Thompson's Liability of Officers and Agents of Corporations, p. 401, § 25. Bank directors are liable as trustees to depositors. — Delano v. Case, 17 m. App. 531; 12 N. B. Rep. 676. See Giddings v. Baker, 80 Tex. 308; 16 S. W. Rep. 33. Under various State statutes they are liable for debts contracted be- fore the organization of the corporation, for contracting indebtedness in excess of prescribed limits, for declaring dividends when there is no surplus. — Thompson's Liability of OfBcers and Agents of Corpora- tions, Ch. IV. DIRECTOBS OF PUBLIC COMPANIES. 325 negligence where the company is insolvent, but the directors are persons of substance. Directors are not liable as agents to strangers dealing with the company by way of contract or otherwise ; the company with whom the contract is made is the party liable to be sued (o). There can be no doubt, I think, that they ought to show more than ordinary care towards the shareholders, for they are persons holding themselves out as capable of directing complicated affairs, and inviting persons to trust their money to the company which they profess to direct ; but I do not find any authority for such proposition. They are unlike trustees, who un- dertake irksome duties for no pay or advantage, for they are always either paid or deriving some benefit or advan- [262] tage from their position. There are numerous reported cases of actions ^.gainst directors for misrepresen- tation or fraud ; but it sometimes happens that the miscon- duct complained of may fall short of fraud, but yet may be a breach of duty for which an action will lie (2)). (o) WUson V. Lord Bniy, 5 Q. B. D. Ship v. OtossHU, L. B. 10 Eq. 73; Over- 526, S27, per Brett, L. J.; [seein/ni]. end, Gomey&Co. v. Gorney, L. B.4U11. (j>) Stewart ». Anstin, L. B. 3 Eq. 299; 701; [see iaft-a], (p) The rule as to the degree of care to be exercised by directors in the management of the affairs of the corporation, is stated in Ackerman V. Halsey, 10 Stew. (N. J.) Eq. 356, where it is said : — '■For any willful breach of tnist, or misapplication of the corporate funds, or for any gross neglect or inattention to their official duties, directors are liable. — Field on Corp., § 173; Ang. & Ames on Corp., §312; Citizen's Loan Association v. Lyon, 2 Stew. Eq. 110; Robinson V, Smith, 3 Paige, 222; Citizen's Bid. Association v. Coriell, 7 Stew. Eq. 383; Brinckerhoff v. Bostwick, 88 N. T. 52; Trustees v. Boisseiux, 3 Fed. Rep. 817; 4 Hughes, 398; London Trust Co «. MacEenzie, 3 Reports, 597; 62 Law J. Ch. 870; 68 Law T. 380. " As a general role the directors of a corporation are only required in the management of its affairs to keep within the limits of its powers and to exercise good faith and honesty. They only undertake by virtue of their assumption of the duties incumbent on them to perform those duties according to the best of their judgment and with reasonable dili. gence and a mere error of judgment, will not subject them to personal liability for its consequences. And unless there has been some violation 326 MORE THAN ORDINABY CAKE. There seems to have been some difficulty upon the ques- tion how far a bill in equity would lie against a director, of the charter or the contracting instruments of the company or unless there'is shown to be a want of good faith or a wilUul abuse of discretion or negligence, there will be no personal liability. They are personally only bound ia the management of the affairs of the corporation to use reasonable' diligence and prudence, such as men usually exercise in the management of their own affairs of a similar nature. — Field on Corp., §§ 169, 171; Ang. & Ames on Corp., § 314; Spering's Appeal, 71 Pa. St. 1 ; Citizen's Bid. Ass. v. Coriell, 7 Stew. Eq.,383. But they are personally liable if they suffer the corporate funds or property to be wasted by gross negligence and inattention to the duties of their trust. — Robinson V. Smith, supra; Citizen's Bid. Ass. v. CorieU, supra." In the case last cited, the managers or directors of a building associa- tion were held liable for losses from loans made on insu£acient securities, but not for losses resulting "from an honest mistake in estimating the value of stockholder's lands on which they loaned money, nor for a defect in the acknowledgment of a mortgage which rendered it worthless." The court said: "These directors served without pay; they were selected by their fellow-stockholders to manage gratuitously the affairs of the association in which they and the other stockholders were jointly interested. To apply to them the strict rules which are applicable to trustees who assume the discharge of the duties of private trusts would be unjust. In the absence of fraud, and where they have neither derived nor expect to derive any profit or advantage from their management which was not common to the other stockholders ; when they have acted fairly and have not been guilty of gross neglect or gross inattention, they should not be held liable. The rule applicable to mandatories, is suffl. ciently stringent for such cases, and is a reasonable one. They should be held liable only in case of frau(jl, gross negligence, or misuser." So in another case (Spering's Appeal, 71 Pa. St. 1], it was held that directors of a corporation were not responsible to stockholders for losses happening through their mismanagement where they had used ordinary diligence and acted with good faith. The court said: "They can only be regarded as mandatories — persons who have gratuitously undertaken to perform certain duties, and who are, therefore, bound to apply ordinary skill and diligence, but no more." And in another case (Hodger v. New England Screw Co., 1 B. I. 312), it was said : — "In considering the question of the personal responsibility of the directors, we shall assume that they violated the charter of the Screw Company. The question then will be, was such violation the result of mistake as to their powers, and if so, did they fall into the mistake from want of proper care, such care as a man of ordinary prudence practices In his own affairs. For if the mistake be such, as with proper care DIRECTORS OF PUBLIC COMPANIES. 327 unless for that crassa negligentia which equity regarded as equivalent to fraud {q); but in a later case the Lord Chan- cellor said : «' I certainly never intended to lay down (in Tur- quand v. Marshall) the strong proposition that a person acting for another as his agent is not bound to use all the ordinary prudence that can be properly and legitimately ex- pected from any person in the conduct of the affairs of the world, viz., the same amount of prudence which in the same circumstances he would exercise on his own be- half." (»•). I presume that this would-be ordinary care ; but there are in the same judgment many allusions to crassa negligentia, which would seem to show that some- thing less than ordinary care is all that is required. It is, however, extremely difficult to deal with such terms as crassa negligentia used by any judge, unless we are in- formed what his particular views are with respect to that [263] phrase. If crassa negligentia means that the person guilty of it has been reckless and careless in an extraordi- nary [264] degree, it means one thing; but if it means that the person pretends to skill, and has only exercised ordinary care, it means quite another thing. The liquidator of a company may, it seems, sue the com- pany for negligence, where the directors have made reck- less advances, &c. (s). Wharton, in his learned work on Negligence, says (t): " Whatever be the consideration which induces a person to undertake the control of another's affairs, he is required, if there is confidence bestowed and accepted, to show the dili- (g) Tarqnand v. Marshall, L. B. 4t Oh- (a) Western Bank v. Donglas, Conrt 376; OreTend, Gnmey & Co. v. Gniney, of Sess. 22 D. 417; 24 D. 859. supra. (() Wharton on Negligence, Book II. (r) Overend, Gurney & Co. ». Gibb, b. 510. L. E. 5 Eng. & Ir. 480. might have been avoided, they oaght to be liable. If, on the other hand, the mistake be such as the directors might w^ll make, notwithstanding the exercise of proper care, and if they acted in good faith and for the )>eneflt of the Screw Company, they ought not to be liable." 328 MORE THAN ORDINARY CARE, gence a good man of business is accustomed to show in the exercise of such a trust. A man holding himself out to the public as a business man, capable of properly acting as a bank director, is liable for culpa levis in not showing the diligence a good bank director should. What this dili- gence is, is of course determined in part by the charter of the bank, in part by general commercial law, in part by business usage " (m). Lord Romilly, in giving judgment in Turquand v. Mar- shall (x), said : " I am also of opinion that the other direct- oi"s, who may not have examined the books, must be taken [265] to be liable for all the consequences which would properly flow from the fact if they had been acquainted («) The learned author oltes Percy v. (a) Tnrqnand v. Marshall (L. B. 6 Eq. MlUandon (8 Martin, 68) as ah atthority, 112, 130), was reversed on other points, bnt this case scarcely pats the duty so L. R. i Oh. 376. high. (jt) The court in this case (Percy v. Millandon, 8 Mart. N. S. (La.) 68), said:— " The directors of banks from the nature of their undertaking fall within the class of cases where ordinary care and diligence only are required. It is not contemplated that they should devote their whole time and atten- tion to the institution to which they are appointed and guard It from injury by constant superintendence. Other officers, on whom compensa- tion is bestowed for the employment of their time, in the affairs of the bank, have the immediate management. In relation to these officers, the duties of directors are those of control, and the negligence which would render them responsible for not exercising that control properly must depend on circumstances and in a great measure be tested by the facts of the case. If nothing has come to their knowledge to awaken suspicion of the fidelity of the president and cashier, ordinary attention to the affairs of the institution is sufficient. If they become acquainted with any fact calculated to put prudent men on their guard, a degree of care commensurate with the evil to be avoided is required, and a want of that care certainly makes them responsible." Bank directors are not required to exercise constant vigilance and the highest degree of care. In the case of Wallace v. Lincoln Sav. Bank (89 Tenn. 630; 15 S. W. Rep. 464; ante, p. S24), it was expressly held, that " Bank directors are not expected to give their whole time and attention to the business of the company." See Seventzel v. Penn. Bank (Pa.), 23 Atl. Rep. 405; Jones v. Johnson, 86 Ky. 630; 6 S. W. Rep. 582; Robinson v. Hall, 69 Fed. Rep. 648. DIRECTORS OF PUBLIC COMPANIES. 329 with the contents of them. It was their duty to be so acqaainted, and it was a duty which they had undertaken to perform by becoming directors^ and therefore I am of opinion that they are liable for the falsity of the accounts." The duties and liabilities of directors was very much discussed in the case of the Joint Stock Co. v. Brown (y). The directors of a bill-broking company had committed breaches of trust and done acts which were vltra vires. Some of them had knowingly committed such breaches, but others had only negligently omitted to inform them- selves of what was going forward and to protest Against it, James, V.-C, said: "with regard to one of them (Mr. Gillespie), I have held that there was no sufficient evidence of his concurrence or connivance to make him responsible. I have, however, thought it not right to give him his costs, although I dismiss him from the suit, because I think a man who is a director, and goes on as a director for months, when a transaction of this kind is going on is not justified [266] in saying, ' I really did not pay the slightest attention to it, I had a sort of vague notion of what was going on ; I was a paid director, but I left it to the other directors to attend to; I did nothing. I took it for granted all was right.' I think he is entitled to this, and I cannot fix him with a liability, but I think it is not too much of a penalty for him to pay for his negligence, that he shall not have any costs of the proceedings which have been rendered necessary in this court by proceedings of his co-directors which he took no pains to inquire into or interfere with." With regard to another director (Mr. Brown), the learned vice-chancellor held that he was liable. He had disapproved of what was done, and had written a letter about it, and thought he bad done enough, but it was held that he had neglected to perform his duty by not (2^) Joint Stock Co. v. Brown, l! E. 8 £q. 381.— [In re Cardiff Sav. Bank (1892), 2 Cb. 100.] 330 MORE THAN OKDINAEY OAEE. resorting to some means of prevention ; and another director (Mr. Bravo) was held liable for very similar reasons. It should seem that even Mr. Gillespie would have been liable in an action for negligence in not taking ordinary care. "Of course" (said James, V.-C.),'" it is quite clear that no company of this kind could be carried on if every director was obliged to sign every cheque, and it is there- fore required that the cheques should be signed by a certain number of persons for the safety of the company. That implies, of course, that every one of those persons takes care to inform himself, or, if he does not take care to inform himself, is willing to take the risk of not doing so, of the purpose for which and the authority under which the cheque is signed ; and I cannot allow it to be said for a moment that a man signing a cheque can say, ' I signed that cheque as a mere matter of form ; the secretary brought it to me ; a director signed it before me ; two clerks have countersigned it; I merely put my name to it ' " (a). In Eance's case (a), James, L. J., said, at p. 188: — " If the directors, by placing unbounded reliance upon [267] the representations of their servants or actuaries, had arrived at the conclusion that they had made a divisi- ble profit, this Court ought not, I say, to sit as a Court of Appeal from that conclusion, although it might afterwards be satisfactorily proved that there were very great errors in the accounts which would not have occurred if they had been made out with greater strictness or with more scruti- nising ca,re. But no such acdount at all was made out. A mere cash account or balance-sheet in such a company as this, presented in order to determine whether there had been a profit made, and for the purpose of declaring a bonus thereon, is, to my mind, within the meaning of Stringer's case (L. R. Ch. 475) a fraudulent and delusive balance-sheet. If a breach of trust " (and I presume a (s) At p. 404. C«) Eance's case, L. R. 6 Ch. 104. DIRECTORS OP PUBLIC COMPANIES. 331 negligent act) "is committed by the directors, a director who joins in the act, although not being aware that such act is contrary to his duty, is equally liable with those who knew they were acting contrary to their duty, for he ought to have made himself acquainted with his duties " (6). (6) Gilmes v. Harrison, 28 L. J. Oh. 823, 827; Joint Stock Disconnt Co. v. Brown, L. R. 8 Eq. 381. {b) In JVeetjen v. Vibbard (5 Hun, 265) the court said: " It is the posi- tive duty of each trustee to protect the trust from every misfeasance on the part of the others acting with him ; and when it comes to his knowledge t^at they Intend to abuse their trust by a misuse of the property com- mitted to the charge of aM, it is bis duty to Institute such proceedings as may be attended with the effect of preventing it. And when the act bas been pe) Ab to what Is the act of God, see I £L & BL 111. There was no aUegation Nugent v. Smith, I^ B. 1 C. P. D. 123 ; 45 of negligence, but generally of a wrong L. J. 0. P. 697. And In what cases It wlU by which the plaintiff had snSered excuse an act, see ante, Cb. I., Proximate damage. Oaose; [see po«t,p, 336, note (p)J. (fiy Emma Sllrer Hlning Co. v. Grant, U Oh. D. 934. {h) In tbe case of Yale Gas-Stone Co. v. Wilcox (64 Conn. 101; 29 Atl. Bep. 303), the conrt said : " As promoters of the new company, they occapied a fldnciary relation toward it similar to that of agent and prin- cipal, and they had no right in these negotiations to derive any advantage over other stockholders without a fall and fair disdosnre of the trans- actions, and any secret profits so made they must refund to the company." Citing Densmore Oil Co. v. Densmore, 64 Pa. St. 43; Emery v. Parrott, 107 Mass. 95; Getty v, Devlin, 54 N. Y. 403. See Chandler v. Bacon, 30 Fed. Bep. 638. 334 MORE THAN ORDINARY CARE. of such peculiar character, for then the common carrier becomes lia^ble only where he has been negligent (k). So, also, a common carrier is not an insurer after the [270] goods have arrived at their destination. He then becomes liable only where negligence is shown (Z). Kailway companies are, apart from statute law or spe- cial contract, common carriers, and subject to the like duties and privileges with ordinary common carriers (»w), but further they are bound to carry for all persons upon equal terms (n), as well as upon reasonable terms. Carriers have been relieved by the Legislature in some degree from the extremely onerous obligations cast upon them by the common law; and by the Carriers Act, 1830, it is declared that they shall not be liable for the loss of or injury to certain goods above the value of £10, unless their value be declared and an increased charge paid. Section I of the Carriers Act, 1830, provides as follows: — "That from and after the passing of this Act no mail contractor, stage-coach proprietor, or other common carrier by land for hire, shall be liable for the loss of, or injury to, any article or articles or property of the descriptions following (that is to say), gold or silver coin of this realm, or of any foreign State, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewelry, (ft) Blower V. G. W. By. Co., Ij. B. 70. the transitus U at an end and the carrier F. (animals by land) ; Eendal «. L. & S. ceases to hold the goods as carrier, bat W. By. Co., L. B. 7 Ex. 373; 11 L. J. Ex. holds them as agent of the consignee, 184; Nugent v. Smith, mipra (animals by see In re McLaren, 48 L. J. Bk. (0. A.) sea); McDonald v. Highland By. Co., 49. ByspecialagTeement,of course, the Court of Sessions, 3d series, vol. xi. 614 carrier may be agent for the consignee (perishable goods). and not for the consignor. (0 Oarside v. Trent Navigation, 4 T. (m) Bailway Clauses Act, 1846, s. 98, E. 681; Bourne ii.Gatllfle,M.& G. 643; U but their duties are in many respects" 01. & Fin. 45 ; (jronch v. Gt. W. By. Co., 27 regulated by the Bailway Commission- L. J. Bx. 345; Hengh v. L. & N. W. By. ers under the Begulations of Bailways Co. , L. B. 6 Ex. SI ; Mitchell «. L. & Y. By. Act, 1873. Co., L. E. 10 Q. B. 256 ; 44 L. J. Q. B. 107 ; (») Parker v. Gt. Western, 7 M. & G. Chapman v. Q. W. E. By. Co., 49 L. J. Q. 2!i3; Baxendale v. East. Co. By. Co., 4 0. B.420;5Q.B.D.2;8. As to goods by sea, B. N. 8. 63; Fiddington ».S. B. By. Co., see Wilson v. London, &c., Co., L. E. 1 O. 5 a B. N. 8. Ill ; [see poa, p. 889, Bates]. F. 61 ; 25 & 26 Vict, c 63,8. 67. As to when CAEKIEKS — RAILWAY COMPANIES. 335 watches, clocks, or timepieces of any description, trinkets, bills, notes of the governor and company of the bank of England, Scotland, and Ireland respectively, or of any other bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign, stamps, maps, writings, title-deeds, paintings, engravings, [271] pictures, gold or silver plate or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs or lace [by 28 & 29 Vict. c. 94, this does not include machine-made lace], or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire, or to accompany the person of any passenger in any mail or stage-coach, or other public conveyance, when the value of such article or articles or property aforesaid, contained in such parcel or package, shall exceed the sum of ten pounds, unless at the time o^ the delivery thereof at the office, warehouse, or receiving- house of such mail-contractor, stage-coach proprietor or other common carrier, or to his, her, or their book-keeper, coachman, or other servant, for the purpose of being car- ried, or of accompanying the person of any passenger as aforesaid, the value and nature of such article or articles or property shall have been declared by the persons send- ing or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or pack- age." The Act applies only where the loss takes place upon land (o). The Act protects the carrier, notwith- standing the goods are being carried beyond their destina- tion (p). (o) Le Conteoi v. London, Brighton C. li. 341 ; FiancianI v. London and S. W. and South Coast Ey. Co., 35 L. J. Q. B. Ry. Co., IS 0. B. 326. 40; L. B. 1 Q. B. S4; Baxendale v. Great (p) Morrit v. N. East By. Co., L. R. 1 East. Ey. Co., 4 Q. B. 244; 38 L. J. Q. B- Q. B. D. 302; 45 L. J. Q. B. 289, 0. A. As 137. As to what is a loss, see Hearn v. to what goods are within the section the London and S. W. Ry. Co., 10 Exch. 793; loUowlng cases may be consulted. They Wallace v. Dablin, Ac, Ey.Oo.,8 Ir.Eep. are taken In the order in which the words 336 MOKE THAN OEDINAKY CARE. [272] It is not necessary that the declaration of value should be in any particular form (y). The declaration being made, the customer has done his duty, and if the Interpreted by them occnr In tbe Act: Co., 33 Ii. J. Ex. 187; Flowers v. 8. East. LeOontenr 1). London and S. W. By. Co., By. Co., 16 L. T. 339 ("silks, &o.,"); gupra ("timepieces"); Bernstein ». Mayhew c. Nelson, 6 C. & P. 58 (" f nrs") ; Baxendale,28L. J. O. P. 265 ("trinkets"). Treadwin ii. Great Eastern By. Oo., L- Stoesslger v. 8. East. By. Co., 3 E. &. B. B. 3 C. P. 308 (" lace," and see 28 & 29 649 ("bills, notes, or secnritles for pay- Tlct. c. 94, supra); the plaintiff's own ment ol money ") ; Wyld v. Piokf ord, 8 wagon placed npon a railway tmck M. & W. 443 (" maps ") ; Boys v . Pink, 8 was held to be a " parcel or package," C. & P. 361 ("engravings"); Anderson where goods within tbe Act were packed V. London and N. W-est. By. Co., 39 L. J. In the wagon, Whaite v. Lancaster and Ex. 65; L. B. 5 Ex. 90 (" pictures " — Torks. By. Co., 43 L. J. Ex. 47; L. B. 9 frame] ;Owenv.Bamett,suj)ra(" glass," Ex. 67. large looking-glass) ; Hart v. Baxen- (g) Bradbury v. Sntton, 19 W. B. 800; dale, 20 L. J. Ex. 338; Bernstein v. Bax- 21 W. B. 128. endale, eupra; Brnnt v. Midland By. {p) A common carrier is one that undertakes for hire or reward to carry goods for all persons, who may choose to employ It, from one place to another, — United States Express Company v. Backman, 28 Ohio St. 150; Whart. on Neg., § 546; Fuller o. Bradley, 25 Pa. St. 120; Samms v. Stewart, 20 Ohio, 69; Wood on Bail ways (lS94), p. 1876; Independence Mills Co. B, Burlington, etc., E. Co., 72 la. 535; 34 N. W. Eep. 320. Eailway companies are common carriers of goods. — Mnn v. Western E. Co., 112 Mass. 524; Hubbard v. Hamden Express Co., 10 B. I. 244; Houston, £tc., E. Co. v. Ham, 44 Tex. 628; Mobile, etc., E. Co. v. Welner, 49 Miss. 725; Mobile, etc., E. Co. v. Williams, 54 Ala. 168; Ohio, etc., E. Co. v. Yohe, 51 Ind. 181, (In Memphis, etc., E. Co. v. Southern Exp. Co., U. S. C. C, 22 Cent. L. J- 349, it was held that " there is no legal duty resting on railway companies to famish express facil- ities to all persons and companies that demand them and therefore no such duty to furnish such facilities to any company." S. P., St. Lonis, I M., etc., By. Co. v. Southern Exp. Co., 117 U. S. 1. As such they are insurers of goods received by them to be carried against all casualties, except those which arise from tbe act of God, pub- lic enemies, the fault of the party or the inherent qualities of the prop- erty itself. — Wood on Eailways, (1894), p. 1877. See Davis v. Wabash, etc., E. Co., 89 Mo. 340; 1 S. W. Eep. 327; Norris v. Savannah, F. & W. Ey. Co., 23 Fla. 182; 1 So. Eep. 475. An express company is a common carrier of valuables and is excepted from liability by vis major. — Southern Exp. Co. v. Glenn, 16 Lea, 472; 1 S. W. Eep. 102. Act of God.— Anything may be said to result from the act of God, in the production of which man has no agency immediate or remote. — Wood on Eailways (1894). p. 1877. See Black ». Chicago, B. & Q. E. CAREIBBS CONCURRING NEGLIGBNCK. 337 carrier then chooses not to demand the higher rate he may do so, and his liability rests as at common law (r). Sec- (r) Bebrens v. Great Northerns By. Oo., 31 L. J. Ex. 299. Co., 30 Neb. 197; 46 N.W. Rep. 428; Long o. FennsylTania R. Co., 147 Pa. St. 343; 23 Atl. Eep. 459; 29 W. N. C. 376. The following casea have been held to be within this exception: A tempest.— Giilett v. ElUs, 11 lU. 579; Blytbe «. Denver & E. G. By. Co., 15 Colo. 333; 25 Fac. Bep. 702. A snow Storm. — Ballentine v. North Missouri B. Co., 40 Mo. 491 ; Palmer v. Atchison, etc., B. Co., 101 Cal. 187; 35 Fac. Bep. 630; Black «. Chicago, B. & Q. B. Co., 30 Neb. 197; 46 N. W. B. 428. An earthquake.— Slater v. South Carolina By. Co., 29 S. C. 96; 6 S. E. Bep. 936. Freezing of navigable waters. — Parsons o. Hardy, 14 Wend. 21S; West V. The Berlin, 3 la. 532. An extraordinary flood. — Wallace o. Clayton, 42 Ga. 448; Smith v. Western By., etc., 91 Ala. 455; 8 So. Bep. 754. Atmospheric condition rendering telegraph wires unavailable.— International & G. N. B. Co. v. Hynes, 3 Tex. Civ. App. 20; 21 S. W. Bep. 622. Foundering of a vessel on a hidden rock or snag, unknown to navi- gators. — BennewUl o. Cullen, 6 Harr. 238; Williams v. Grant, 1 Conn. 487; Faulkner v. Wright,, 1 Bice, 108. But a fire not caused by lightning. — Cox v. Peterson, 30 Ala. 608; Parker v. Flagg, 26 Me. 181; Graff v. Bloomer, 9 Fa. St. 114. A collision not caused by a tempest. — Plaisted o. Boston Steam Nav. Co., 27 Me. 132. The sinking of a vessel by collision with a piece of timber. — New Brunswick Steam Nav. Co. v. Tiers, 24 N. J. L. 697. B/ an unseen obstruction in navigation. — Brousseaa «. The Hudson, 11 La. Ann. 427. Or a newly formed bar in a river. — Friend o. Woods, 6 Gratt. 189, are not within the exception. Concurring Negligence. — Where negligence of the carrier and the act of God concur in producing the injury, "the carrier is liable. — Hart V. Allen, 1 Watts, 115; Elauber v. American Express Co., 21 Wis. 21; Morgan -o. Dibble, 29 Tex. 107; Rogers v. Bailroad Co., 67 Cal. 606; 8 W, C. Bep, 20 ; Packard v. Taylor, 35 Ark. 402 ; Adams Express Co. v. Jackson, 92 Tenn. 326; 21 S. W. Bep. 666; Tanner v. New York, etc., B. Co., 108 N. Y. 623; 15 N. E. Eep. 379; Chicago B. &Q. R. Co. v. Manning, 23 Neb. 552; 37 N. W. Rep. 462. And this rule has been held to apply to a loss by an act of God after a negligent delay by the carrier. — Read v. Spaulding, 30 N. Y. 630 ; Mc- Graw V. B. & Q. B. Co., 18 W. Va. 361; Baltimore & O. E. Co. v. Keedy, 22 338 MOEE THAN ORDINARY CARE. tioa 2 provides that an increased rate may be demanded, and notices are to be put up in offices or warehouses by 75 Md. 320 ; 23 Atl. Eep. 643. See Richmond & D. E. Co. v. White, 88 Ga. 805; 15S. E. Kep. 802. ' (But the welg ht of authority is opposed to this view, and the carrier in such a case has been held not liable.— Morrison v. Davis, 20 Pa. St. 171 ; Denny v. N. T. Cent K. Co., 13 Gray, 481; Hoadley v. Northern Trans- portation Co., 116 Mass. 304; Railroad Co. v. Reeves, 10 WaU. 176; Mc- Clary v. Sioux, etc.. City R. Co., 3 Neb. 44; 19 Am. Rep. 631.) To a loss caused by an act of God, when the carrier deviates from his regular course.— Lawson's Cont. of Carriers, § 11 ; Povrers v. Davenport, 7Blackf. 496; Phillips ». Brigham, 26 Ga. 617; Lavreence v. McGregor, Wright, 193. Or when the carrier has agreed to send goods by one line and sends them by another.— Johnson v. New Tork Central, etc., E. Co., 33 N. Y. 610. Unusual and unexpected pressure of business will not excuse a carrier from his duty to receive and promptly carry goods. — International & G. W. R. Co. V. Anderson, 3 Tex. Civ. App. 8; 21 S. W. Rep. 691; Louisville & N. E. Co. V. Touart, 97 Ala. 514; II So. Eep. 756; Marine Ins. Co. v. St. Louis, etc., Ry. Co., 41 Fed. Rep. 643. ' Public Enemy. — The carrier is not liable for a loss caused by a pub- lic enemy. — Lewis v. Ludwick, 6 Cold. 368; Hubbard v. Harnden Ex- press Co., 10 R. I. 251 ; Smith v. Brazleton, 1 Heisk. 44. Thieves and robbers are not public enemies In the sense of the texcep- tion. — Hall ». Cheney, 36 N. H. 26; Lang ». Pennsylvania E.Co., 164 Pa. St. 842; 26 Atl. Sep. 370; 32 W. N. C. 205. Nor rioters and insurgents. — Jones on Bailments, 104. See Missouri Pac. Ry. Co. v. Levi (Texas), 14 S. W. Rep. 1062; Southern Pac. Ry. Co. V. Johnson (Texas), 15 S. W. Rep. 121; Gulf, C. & S. F. Ry. Co. v. Gatewood, 79 Tex. 89; 14 S. W. Rep. 913; Haas v. Kansas City, etc., R. ' Co., 81 Ga. 792; 7 S. E. Eep. 629. But see International & G. N. E- Co. V. Tisdale, 74 Tex. 8; US. W. Rep. 900; Geismer v. Lake Shore & M. S. Ry. Co., 102 N. Y. 663; 55 Am. Rep. 837. But Insurgents against the government during the late civil war were held to be public enemies. -- Nashville, etc., Co. v. Bstes, 10 Lea, 749. See post, p. 356. Inherent Defects in Goods. — The carrier is not liable for losses to goods arising from inherent defects. — Aug. on Car., § 211; Whart. on Neg., § 665; Eixford v. Smith, 52 N. H. 365; Missouri Pac. Ry. Co. V. Fagan (Tex. Civ. App.), 27 S. W. Rep. 887; Hance v. Pacific Exp. Co., 48 Mo. App. 179. Nor for losses arising from the ordinary wear and tear of goods in the course of transportation, nor for their ordinary deterioration in quantity or quality. — Lawson's Cont. Carriers, f 14. CARRIERS — RAILWAY COMPANIES, 339 ■which customers are to be bound. Section 3 provides that carriers are to give receipts for such extra charges. As where the goods are of a perishable nature and subject to decay. — Nelson v. Woodruff, I Black. 156; Powell v. Mills, 37 Miss. 691. Or of a combustible or eisplosive character and the carrier is not aware of the fact. — Boston, etc., E. Co. v. Shidley, 107 Mass. 668. Or when they are improperly packed and damaged In consequence. — Ohio, etc., R. Co. v. Dunbar, 20 111. 623; Rixfordw. Smith, 52 N. H. 355; Elauber v. American Express Co., 21 Wis. 21; Goodman d. Oregon By. & Nav. Co., 22 Ore. 14; 28 Pac. Eep. 894; Phoenix Clay-Pot Works o. Pittsburgh & L. E. R. Co. (Pa.), 20 Atl. Rep. 1058; 27 W. N. C. 321. Unless the carrier is himself negligent. — Briggs v. Taylor, 28 Vt. 180; Jennings v. Grand Trunk By. Co., 52 Hun, 227; 5 N. Y. S. Rep. 140; Beard v. Illinois C. E. Co., 79 la. 518; 44 N. W. Rep. 800. Bates. — Railway companies are generally bound to carry for all upon equal and reasonable terms.— Union, etc., R. Co. v. Erie E. Co., 37 N. J. I«. 23; New England Express Co. v. Main Central R. Co., 57 Me. 188; Raganv. Aiken, 9 Lea, 609; Anderied v. Railroad Co., 68 Fa. St. 370; Messenger v. Pennsylvania E. Co., 36 N. J. Eq. 407; Louisville, E. & St. Jj. Con. R. Co. V. Wilson, 132 Ind. 517; 32 N. E. Rep. 311; Union Pac. Ry. Co. V. Goodridge, 149 U, S. 680; 13 S. Ct. Eep. 970; Same v. Taggart, 149 U. S. 698; 13 S. Ct. Rep. 977; Galveston, H. & S. A. Ry. Co. v. Bow- man (Tex. Civ. App), 25 S. W. Rep. 140; Ford v. London & S. W. Ry., 60 Law J. Q. B. 130; Liverpool Corn Trade Assoc, v. London & N. W. Ey., [1891] Q. B. 120; Cowan v. Bond, 30 Fed. Rep. 54; Cook v. Chicago, etc., Ry. Co., 81 la. 651; 46 N. W. Rep. 1080; Samuels v. Louisville & N. R. Co., 31 Fed. Rep. 57. (So are steamship lines. — De Menacho v. Ward, 27 Fed. Rep. 529; 23 Batchf. C. Ct. 602. " Discriminations In rates of freight if fair and reasonable and founded on grounds consistent with public interest, are allowable." — Ragan v. Buffet, 9 Lea, 609, citing Hersh v. Northern, etc., R. Co., 74 Pa. St. 181 ; Chicago, etc., R. Co. v. People, 67 111. 11; Fitchburg R. Co. ». Gage, 12 Gray, 393. See Cowden v. Pacific Coast S. S. Co., 94 Cal. 470; 29 Pac. Rep. 873; Cleveland, C, C. & I. Ey. Co. v. Closser, 126 Ind. 348; 26 N. E. Eep. 159. In the United States the common law rule prohibiting common car- riers from making unreasonable charges does not apply to interstate commerce (Swift v. Philadelphia & E. E. Co. , 58 Fed. Rep. 858) ; but the same is now regulated by the Interstate Commerce Act. It has been held that a carrier may discriminate in rates in favor of persons shipping large quantities of freight over those shipping small qnantities. — Concord, etc., E. C. v. Forsaitb, 59 N. H. 122; 47 Am. Rep. 122; Kinsley v. Buffalo, etc., R. Co., 37 Fed. Rep. 181. But in another case (Scofield v. Lake Shore, etc., R. Co., 43 Ohio St. o71; 15 Law Bull. 26) such discrimination was held unlawful. 340 MOliE THAN ORDINARY CARE. By section 4 public notices are not to limit the common law liability of the carrier in respect of any other goods. Arrival at Destination. — After the arrival of the goods at their des- tination the carrier is only liable as warehouseman. — Whart on Neg. 571. In some cases its liability as insurer has been held to continue until the consignee has been notified of their arrival and a reasonable oppor- tunity has been afforded him of removing them. — Blumenthal «. Brain- ardjSSVt. 483; JeiKersonville B. Co. v. Cleveland, 2 Bush, 418; Maignan V. New Orleans, etc., B. Co., 19 La. Ann. 133; Lemke v. Chicago, etc.,B. Co., 39 Wis. 449; Moses v. Boston, etc., B. Co., 32 N. H. 523; Annis- ton & A. B. Co. V. Ledbetter, 92 Ala. 326; 9 So. Bep. 73; Pindell «. St. Louis & H. By. Co., 41 Mo. App. 84; Dnnham v. Boston & A. B. Co., 46 Hon, 245; Black v. Ashley, 80 Mich. 90; 44 N. W. Bep. 1120; Collins v. Alabama G. S. B. Co. (Alabama), 16 So. Bep. 140. And in others when the goods have arrived and been placed in the company's warehouse or freight depot. — Mohr v. Chicago, etc., B. Co., 40 la. 579; Nealo. Wilmington, etc., B. Co.,8 Jones L. 482 ; Southwestern, etc., B. Co. V. Felder, 46 6a. 433; Jackson o. Sacramento Valley B. Co., 23 Cal. 269; McCarty v. New York, etc., B. Co., 30 Pa. St. 247; Chicago, etc., B. Co. V. McCool, 26 Ind. 140; Chicago, etc., B. Co. v. Scott, 42 111. 132; Thomas v. Boston, etc., B. Co., 10 Mete (Mass.) 472; Stowe o. New York, etc., B. C, 113 Mass. 521 ; East Tennessee, V. & G. By. Co. v. Kelly, 91 Tenn. 699, 708; 20 S. W. Bep. 312, 314; Columbus & W. By. Co. V. Ludden, 89 Ala. 612; 7 So. Bep. 471 (such questions are for the court to decide). So where the freight had been placed in a public ele- vator, according to custom. — Arthur v. St. Paul & D. By. Co., 38 Minn. 95; 35 N. W. Bep. 718. The consignee is entitled to have a reasonable time after the storage of the goods in which to remove them. — Kirk v. Chicago, etc.. By. Co. (Minnesota), 60 N. W. Bep. 1084. So where it is the duty of the carrier to notify the consignee of the arrival of the goods it must give him a reasonable opportunity to remove them. When he resides at the place of delivery the carrier must notify him of their arrival.— Penning v. First Div. St. Paul, etc., E. Co., 19 Minn. 251; Spraguec. N. Y. Central E. Co., 52 N. Y. 637; Buckleys. Great Western B. Co., 18 Mich. 121 ; Culbreathy ». Phila., etc., E. Co., 3 Honst. 392. And when it has done so and given the consignee a reasonable oppor- tunity to remove them, its liability as insurer ceases. — Whart. on Neg., §571; Both v. Bailroad Co., 34 N. Y. 548; Michigan Cent. B. Co. t). Ward, 2 Mich. 538; Louisville, etc., B. Co. v. Mahan, 8 Bush, 184; Hasse V. American Exp. Co., 94 Mich. 133; 68 N. W. Bep. 918; Tarbello. Eoyal Exch. S. Co., 110 N. Y. 170; 17 N. E. Bep. 721. If the consignee does not reside at the place of delivery the carrier CAREIEES. 341 Section 5 defines a receiving-house. Section 6 saves all special contracts ; but it has been held that the mere fact of the existence of a special contract not inconsistent with the provisions of section 1 does not prevent the operation of that section (s). By section 7 the extra charges may be recovered with the damages. By section 8 " nothiug in this Act shall be deemed to protect any mail contractor, stage-coach proprietor, or other common carrier for hire from lia;bility to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coachman, guard, book-keeper^ porter, or other servant in his or their employ, nor to protect any such coachman, guard, book-keeper, or other servant from liability for any loss or injury occasioned by his or their own personal neglect or misconduct" (<). (a) Baxendale v. Great East. By. Co., felony be proved, Great W. By. Co. v. L. B.1Q. B. 241; 981,. J. Q. B. 137. Bimmell, 18 C. B. 575; 27 L. J. O.P. 201; (t) As to who is a servant wltbln tbe Metcalie v. London, Brighton and South meaning of this section, see Machn v. Coast By. Co., ib. 205. As to what Is IiondonandS. W. By. Co., 2 Ezch. 115. It sufficient evidence of afelony,8eeBoyce is unnecessary in a case where the stat- v. Chapman, 2 Bing. N. G. 222; Great ute Is relied on to prove negligence It Western By. Co. d. Bimmell, supra; mast endeavor to ascertain bis residence, and failing in this after due Inqniry it will not be liable as insurer. — Felton v. Bensselaer, etc., B, Co., 54 N. Y. 214. As warehoaseman It is bonnd to properly store the goods and is liable for its own negligence or that of its servants. It is not liable for the destraction of the goods by accidental Are. — Francis v. Dabnqae, etc., B. Co., 25 la. 60; Fenner v. Bofialo, etc., B. Co., 44 N. r. 505. Or fire caused by the act of its servants when not acting within the scope of their employment. — Aldrich v. The Boston, etc., B. Co., 100 Mass. 31; Francis v. Dubuque, etc., B. Co., 25 la. 60. Where the shipper has been notified that his freight is stored subject to his order and at his risk, the railroad company is bound to use the same diligence to preserve it that it would towards its own property, under similar circumstances. — E. O. Standard Milling Co. v. White Line C.T. Co., 122 Mo. 258; 26 S. W. Eep. 704. And it has been held that Its duties do not require it to keep a night- watch. — Kronshage v. Bailroad Co., 40 Wis. 587 ; Bennett v. The Guid- ing Star, 53 Fed. Bep. 936. 342 MOKE THAN OEDINAKT CARE. If the customer tenders a reasonable sum for the carriage of goods, it has been thought that the carrier cannot refuse to carry them (m). He has no right to say that he will not [273] carry them except under a special contract, how- ever reasonable; at all events, where the goods are such. as he professes to carry (a;). [274] In dealing with the question of the liabilities of carriers, it must be understood that their liabilities might always be [275] varied by express agreement, and that it is not our intention, for reasons already given {y), to- discuss the effect of [276] the different modes of limita- tion of liability which have ti-om time to time been adopted. It is sufficient to say that in. the case of railway companies,, the practice of making contracts exempting them from all liability for negligence of any kind, became so frequent (z} that some restriction [277] upon which contracts had to Metcalte v. London, Brighton and Sonth Coast, iapra; Vaughton v. London and N. W. Ey. Co., L. R. ,9 Ex. 93; 43 L. J. £s. 7S ; McQueen v. Gieat West. Ky. Co., L. B. 10 Q. B. S69; UL. J. Q. B. 130. (k) And even being ready and willing o pay Is sufficient, see Fickford v. Grand Junction By. Co., 8 M. & W. 372. (X) Per Parke, B., in Oaitv. Lanca- slilre and York By. Oc, 7 Excli. 707, and see the same Judge In Johnson v. Mid- land By. Co., 4 Ezch. 367: I cannot find that any action has ever been brought on the strength of this dictum. The above case was tried in 1852, and the Railway and Canal Traffic Act allowing reasonable contracts was passed In 1854, and probably it would now be held that a carrier had a right to demand that a reasonable special contract should be made; and this has evidently been assumed in several cases. Horn v. Mid- land By. Co., 42 L. J. 0. F. 59; L. B. 8 C. F. 131. Bailway companies may, by notice, refuse to carry animals except by special contract, Bichardson v. TS. Ei. By. Co., L. B. 7 C. F. 80. Drovers of cattle sometimes a^ree to travel at their own risk, McCawley v. Furness By. Co., L. B. 8 Q. B. 57; 42 L. J. Q. B. 4; Gallin v. Lon- don and N, W. By. Co., L. B. 10 Q. B. 212; 44 L. J. Q. B. 89; Hall v. S. E. Ey> Co., L. £. 10 Q. B. 434; 46 L. J. Q. B. 164. See, however. Monster v. S. E. By. Co., 4 0. B. N. S. 676; 27 L. J. C. P. 308, which was a case of a passenger offering bun- dles to be carried. The company made a rule that passengers were to see their luggage labeled, and a rule that porters, were not to label bundles, and ,they refused to carry the bundles. It wa& held they were bound to carry such bundles as were personal luggage. It was said that they could not so limit their common-law liability; but the court seemed to entertain doubt. See p. 697 of the report as to whether they could not refuse to carry bundles which were not personal luggage. (ff) See aTite, p. 10. (3) Carriers used to post up notlceEr to limit their liability, and these were often held to be Inoperative, because the party bringing the goods was unable to read, Davis v. Wlllan, 2 Stark. 280; or did not read, Serr v. Wlllan, ift. 44; or the notice Was in small type, Butler v. Hearne, 2 Oampb. 415; or his attention, was not drawn to it, Clayton v. Hunt, 3 Oampb. 27 ; Walker v. Jackson, 10 M. & W. 173; see, also, cases as to luggage in cloak rooms, infra. LIMITING LIABILITY BY CONTRACT. 343 be placed by the Legislature (a), and only such contracts could thereafter be made as were just and reasonable (6), and signed by the party (c), and only certain damages recovered for injuries (o>(. 33 L. J. Ex. 1S5; Brown v. Manchester (6) As to what conditions liave been and Sheffield By. Go., 10 Q. B. D. 260 (no considered jnst and reasonable, the exception even for willf nl miscondnct) ; cases infra, may be consnlted. Booth v. N. B. By. Co., L. B. 2 Ex. 133; (c) Peek ti. ST. Staff By. Co., 11 H. L. 36 L. J. Ex. 83; Allday v. G. W. By. Co., Oas. 473 ; 32 Ii. J. Q. B. 241 ; Aldridge v. 31 L. J. Q. B. 5 ; S B. & S. 903 ; McManns v. Great W. By. Co., 33 L. J. C. P. 161 ; Cslg- Lancashire and Yorkshire By. Co., 28 L. natore of agent). If consignor is setting J. Ex. 3S3; Peek v. Xorth Staffordshire np contract it Is no answer to say he By. Co., 32 L. J. Q. B. 241; McCann v. L. has not signed it, Baxendale v. Great & M. W. By. Co., 31 L. Ex. 66; [see post. East. By. Co., L. B. IQ. B. 244; 38 L. J. pp. 344et«^]. Q. B. 137. (ff) Lewis v. . B. Co., 39 S. C. 65; 17 S. E. Bep. 612; Louis- ville & N. B. Co. V. Sherrod, 84 Ala. 178; 4 So. Bep. 29. But see Amboch V. Baltimore & O. B. Co., 30 Wkly. Law Bui. 665; Pennsylvania E. Co. v. Weiller, (Pa.), 19 Atl. Bep. 702; 26 W. N. C. 27. It cannot by a general notice limit Its liability. — State v. Townsend, 37 Ala. 247; Michigan, etc., E. Co. v. Heaton, 31 lod. 397; Kimball v. Butland, etc., B. Co., 26 Vt. 247; Moses v. Boston, etc., B. Co., 32 N. H. 523; Smith v. N. Carolina E. Co., 64 N. C. 236; Wallace v. Matthews, 39 6a. 617; New Orleans, etc., Ins. Co. v. New Orleans, etc., E. Co., 20 La. Ann. 302. 346 MORE THAN ORDINARY CARE. ordinary negligence) or fraud" (w) ; from liability in respect of goods damaged beyond the limits of the com- (») Beal V, Sonth Devon By. Co., 3 H. & C. 337. In -order that it may limit its liability by a notice in a receipt, it must be shown .that it was assented to by the shipper (Southern Express Co. V. Crook, 44 Ala. 468; Peck ». Weeks, 34 Conn. 145; Southern Express Co. V. Newby, 36 Ga. 635; Illinois Cent. E. Co. ». Erankenberg, 54 111. 88; Little V. 'Boston, etc., K. Co.j 66 Me. 239; Buckland v. Adams Express Co., 97 Mass. 124; Levering v. Union Trans., etc., Co., 42 Mo. 88; Moses V. Boston, etc., R. Co., 24 N. H. 71 ; Smith v. North Carolina E. Co., 64 N. C. 265; Munn v. Birchard, 49 Vt. 326; Louisville & N. E. Co. v. Meyer, 8 Ala. 697; Central E. Co. v. Dwight Mfg. Co., 75 Ga. 609; Mer- chants Despatch Transp. Co. v. Eirthman, 149 111. 66; 36 N. E. Eep. 624, affirming 47 111. App. 661; Central E. & B. Co. v. Hasselkus, 91 Ga. 382; 17 S. E. Eep. 838) ; or brought to his knowledge (Sager v. The Ports- mouth, etc., E. Co., 31 Me. 228; The Camden, etc., E. Co. v. Baldauf, 16 Pa. St. 67; Laing v. Colder, 80 Pa. St. 479; Eorer on Eailway Cos., p. 1252 ; Angell on Carriers, § 247) ; when the burden of proof to establish it is on the carrier. — Sager v. The Portsmouth, etc., E. Co., supra. The posting of notices in the office of the company, it has been held, does not raise the presumption of knowledge of their contents, nor the acceptance of a receipt, of the assent of the shipper. — Hollister v. Now- len, 19 Wend. 264; Eailrbad Co. v. Manufacturing Co., 16 Wall. 319. And in Illinois the acceptance of a receipt or bill of lading by the ship- per does not raise such presumption. — Anchor Line v. Dator, 68 XM. 369 ; Field o.A Chicago, etc., R. Co., 71 111. 468; Western Transit Co. v. Hos- king, 19 111. App. 607. But this is not the general rule in respect of a bill of lading, the pre- sumption being that the shipper knew of the limitations contained there- in, and the burden of proving his lack of knowledge thereof being upon him. — Sneider v. Adams Express Co., 63 Mo. 376; Eobinson v. Mer- chknts' Despatch Co., 45 la. 470; Boorman v, American Bxpress Co., 21 Wis. 154. As the carrier cannot contract for total exemption from the conse- quences of its own negligence, neither can it contract for partial exemp- tion; and where the bill of lading provides that the carrier will not be liable for loss or injury to goods beyond a certain amount, it is liable for their full value when the loss is caused by its negligence. — United States Espress'Co. v. Backman, 28 OhlQ St. 144; Grace v. Adams, 100 Mass. 505; Adams' Express Co. v. Stettauers, 61 111. 184. (But see Arnold v. Scholfleld, 83 111. 273); S^ &. N. Ala. E. Co. v. Henlein, 52 Ala. 606; American Express Co. v. Sands, 65 Pa. St. 140; AlabamaGreat Southern E. Co. V. Little, 71 Ala. 611; The Kansas City, etc., E. Co. v. Simpson, 30 LIMITING LIABILITY BY CONTRACT. 347 pany's railway where no reward is earned in respect of carriage on the line where' such loss occurred (o); from Hability unless the value of the goods is declared where the exemption from liability does not include willful miscon- duct (p), have all been held reasonable. [280] Upon the other hand, the following conditions have been held unreasonable: A fcondition not'to be liable for packages insufficiently packed (q), not to be liable for packages charged as empties (»■). The words "at owner's risk " (s) and " the company accepting no responsi- bility " (t) have been held not to absolve the company from liability (w). Co) Aldrldgc v. G. W. Ey. Co., 33 L. B. 9 C. P. 325; EoblnBon «. G.W.Ey.Co., J. C. P. 161. 35 L. J. O. P. 123; McCann v. L. & N. W. (j>) Hari'ison v. L. B. and S. C. Ey. Ey. Co., 31 L. J. Ex. 65. Co., 31 L. J. Q. B. 113; [see pos*, p. 280]. (i) Martin v. G. In. Pen. Ey. Co., L. (3) Simons v. G. W. Ey. Co., 26 L. J. E. 3 Ex. 9. C. P. 25; Garten v. Bristol and Ex. By. («) As to the meaning of an exemp- Co.,30 L. J. Q. B. 273. tion from liability for "detention," see (r) Aldcidge v. G. W. Ey. Co., 33 L. Gordon ». G. W. Ey. Co., 8 Q. B. D. U J. 0. F. 161. (beld not to Inclade wrongful refasal to (g) D'Aro V. L. & N. W. Ey. Co., L. deliver); [see post, p. 348]. Kan. 645; Monlton v. St. Paul B. Co., 31 Minn. 85; Baughman v. Lonis- viUe, etc., R. Co., 94 Ky. 150; 21 S. W. Eep. 757; Bells v. St. Lonis, etc., By. Co., 52 Fed. Bep. 903 ; International & G. N. B. Co. v. Anderson, 3 Tex. Civ. App. 8; 21 S. W. Eep. 691; Taylor, B. & H. By. Co. v. Mont- gomei7 (Texas), 16 S. W. Bep. 178; Adams Express Co. ». Harris, 120 Ind. 73; 21 N. E. Eep. 340; Adams Express Co. v. Hoeing, 88 Ky. 373; 11 S. W. Rep. 205; Adams Express Co. v. Holmes (Pa.), 9 Atl.Bep. 166. But where tlie sliipper does not disclose the value or character of the . goods to be transported when the carrier requires such disclosure to be made, and they are lost or stolen, the carrier will not be. liable. — Everett V. Southern Express Co., 46 Ga. 303; Coxe v. Heisley, 19 Fa. St. 243 ; St. John V. Express Co., 1 Woods, 612 ; The Bermuda, 23 Blatch. 554 ; 27 Fed. Eep. 476. But see Conover v. Pacific Exp. Co., 40 Mo. App. 31. Conditions. — Conditions as to the time and manner of presenting claims fox damages have been held reasonable. — Dawson v. St. Louis R. Co., 76 Mo. 614; Express Co. v. Caldwell, 21 Wall. 264; United Express Co. V. Harris, 61 Ind. 127; The Santee, 2 Ben. 519; Gulf, C. & S. F. Ry. Co. V. Clapke, 5 Tex. Civ. App. 547; 24 S. W. Rep. 355; Selby m. Wil- mington & W. R. Co., 113 N. C. 588; 18 S. E. Rep. 88; Ft. Worth & D. C. Ey. Co. V. Greathouse, 82 Tex. 104; 17 S. W.Bep. 834. A condition that a carrier should not be held liable for damage or loss 348 MOEE THAN ORDINAKY CARE. [281] With respect to the carriage of horses, it has been held, in accordance with the principle above stated, viz., of goods, unless a claim therefor should be made within ninety days from the time of their receipt, has been held reasonable. — Express Co. v. Caldwell, 21 Wall. 264. Or unless the claim therefor shall be made within thirty days. — Hirschberg v. Dinsmore, 67 How. (N. Y.) Pr. 103. Or unless the claim is presented in writing, at the carrier's ofSce, within thirty days after the time when the property«is or ought to have been delivered. — Weir v. Express Co., 5 Phila. 355. Or unless claim therefor should be made in writing, at the o£Sce of shipment, within thirty days from the day of receipt. — United Express Co. V. Harris, 51 Ind. 127. Or unless the claim be made in writing within thirty days after the loss occurs. — Armstrong o. Chicago, etc., Ry. Co., 53 Minn. 183; 64 N. W. Bep. 106. Or Ave days. Black v. Wabash, etc., Ry. Co., Ill 111. 851; or forty days, McCarty v. Gulf, etc., Ry. Co., 79 Tex. 33; 15 S. W. Rep. 164. A condition that claims for damages should be made before the goods are removed from the station is reasonable. — Capehart v. Seaboard, etc., R. Co., 77 N. C. 355. Such conditions have been held reasonable. So also a stipulation in a bill of lading by one of a line of carriers that the company in whose possession the goods are at the time of loss or damage, shall alone be liable, is reasonable. — Fhifer v. Carolina Central Ry. Co., 88 N. C. 311; 45 Am. Rep. 687. And that the carrier which is legally liable for any damages shall have the benefit of any insurance efEected upon the damaged goods. — Ran- toul V. New York Central, etc., R. Co., 17 Fed. Rep. 905. And that a carrier shall not be liable for loss by fire nnless caused by its negligence.— Little Rock, etc., Ry. Co. v. Talbot, 39 Ark. 623; Davis ». Central Vermont R. Co., 66 Vt. 290; 29 Atl. Rep. 313. That '* in case of loss, damage or non-delivery, the ship-owner shall not be liable for more than the invoice value of the goods." — The Hadgi, 18 Eed Rep. 469. Or that the carrier shall not be liable beyond a certain amount for the loss of goods unless their true value is stated. — Muser v. Holland, 17 Blatchf. C. Ct. 412. Though the loss is caused by its negligence. — Id, Unreasonable Conditions. — The following conditions have been held unreasonable : — That a claim for loss must be made when the goods are delivered, where the claim is made within a reasonable time after the loss is ascer- tained.— Memphis, etc., R. Co. o. HoUoway, 9 Baxter, 188. See Smitha V. Louisville & N. R. Co., 2 Pick. (86 Tenn.) 198; 6 S. W. Rep. 209. A provision in a contract of shipment that any claim thereunder should RAILWAY COMPANIES — CONDITIONS. 349 that where the contract excludes all liitbility, and gives uo practical option to the consignor, such a contract is unrea- sonable, thak a condition that the owner of horses should take all risks, as the company will not be responsible for any •injury or damage, howsoever caused, to live stock of any description is unreasonable (x). A contract not to be liable for loss or damage to any horse or dog, unless a declaration of value is made, is reasonable if it be so construed that the company are still to be held liable for willful misconduct (y). The company cannot [282] exempt themselves from the duty of providing safe carriage for the conveyance of horses, or shift the duty of examining into their soundness upon the consignor (z). By section 7 of the Eailway and Canal TraflSc Act, " every such company, as aforesaid, shall be liable for the loss of, or for any injury done to any horses, cattle, or other animals, or to any articles, goods, or things in the (x) McManns v. L. and Y. S,y. Co., (y) Harrison i>. L.B. and S.C.S7. Co., sapra; McCann o. L. and N. W. Ry. Co., supra; leeepost, pp. 283-286]. supra; Gregory v. West Mid. Ey. Co., (z) McManns i>. L. & Y. Ey. Co., infra. supra; Gregory v. West Md. Ey. Co., 33 L. J. Ex. 155. be presented within sixty days from its date, without reference to the time of the loss, is anreasonable. — Pacific Express Co. v. Darnell (Texas), 6 S. W. Eep. 765. See Central Vermont R. Co. v. Soper, 59 red. 789; 8 C, C. A. 341. So is a limitation of thirty-six hours from the time of the delivery of the goods.— Jennings v. Grand Trunk Ry. Co., 127 N. Y. 438; 28 N. E. Rep. 394, affirming 5 N. Y. S. Rep. 140. A regulation of a railroad company posted in Its depot requiring all claims for damages to be made within ten days after delivery at the sta- tion. — Browning o. Tory Island R. Co., 2 Daly, 117. Not to assume any liability above a certain amount. — Moulton v. St. Paul, etc., Ry. Co., 31 Minn. 85. That before a consignee can obtain his wheat from the company's bins he must receipt for the quantity. — Christian v. St. Paul, etc., R. Co., 20 Minn. 21. That a passenger on a steamboat shall not take into his state-room such baggage as he may require for his personal use. — Mackin v. New Jersey Steamboat Co., 7 Abb. Pr. (n. s.) 229. 350 MORE THAN OEDINARr CAEE. receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration fnade and given by such company contrary thereto, or in any- wise limiting such liability ; every subh notice, condition, or declaration being hereby declared to be nuHl and void: Provided, always, that nothing herein contained shall be construed tp prevent the said companies from making such conditions with respect to the receiving, forwarding and delivering of any of the said animals, articles, goods or things as shall be adjudged by the Court or judge before whom any question relating thereto shall be tried, to be just and reasonable: Provided always, that no greater damages shall be recovered for the loss of or for any injury done to any such animals beyond the sums hereinafter mentioned (that is to say), for any horse, fifty pounds ; for any neat cattle, per head, fifteen pounds ; for any sheep or pigs, per head, two pounds, unless the person sending or delivering the same to such company shall at the time of such delivery have declared them to be respectively of higher value than as above mentioned, in which case it shall be lawful for such company to demand and receive by way of compensation for the increased risk and care thereby occasioned, a reasonable percentage upon- the excess of the value so declared above the respective sum so limited as aforesaid, and which shall be paid in addition to the [283] ordinary rate of charge, and such percentage or increased rate of charge shall be notified in the manner presctibed in the statute eleventh George Fourth and first William Fourth, chapter sixty-eight, and shall be binding upon such company in the manner therein mentioned : Provided also, that the proof of the value of such animals, articles, goods, and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensation for such loss or injury: Provided also, that no special contract between such company and any other EAILWAY COMPANIES — LIVE STOCK. 351 parties respecting the receiving, forwarding or delivering of any animals, articles, goods or things, as aforesaid, shall be binding upon or affect any such party, unless the same be signed by him or by the person delivering such animals, articles, goods or things, respectively, for car- riage : Provided also, that nothing therein contained shall alter or affect the rights, privileges, or liabilities of any such company under the said Act of the eleventh George Fourth and first William Fourth, chapter sixty-eight, with respect to articles of the description mentioned iu the said. Act." The Railway and Canal Traffic Act extends to steam vessels, etc., where the railway company undertake the steam traffic under the 26 & 27 Vict. c. 92, ss. 30, 31. As to liabilities of railway companies during sea transit, see 31 & 32 Vict. c. 11 ; 34 & 35 Vict. c. 78, s. 12. Where an injury happened before the special contract under the section could be made, it was held that the Live Stock. — Carriers are insurers of live stock to the same extent as of goods. — South Alabama, etc., B. Co. v. Henlein, 52 Ala. 606; Georgia B. Co. v. Spears, 66 Ga. 485; Agnew v. The Contra Costa, 27 Cal. 425; East Tennessee B. Co. v. Whittle, 27 6a. 535; Ohio, etc., B. Co. V. Dunbar, 20 111. 623; German v. Chicago, etc., B. Co., 38 la.. 127; Kansas, etc., B. Co. t>. Nicbolls, 9 Kan. 235; Kimball v. Rutland, etc., R. Co., 26 Vt. 247; Wilson v. Hamilton, 4 Ohio St. 722; Cragin v. New York, etc., E. Co., 51 N. f. 61; Missouri Pac. By. Co. v. Harris, 67 Ter. 166; Boan V. St. Louis, etc., By. Co., 38 Mo. App. 408; Lindsley v. Chicago, etc., E. Co., 36 Minn. 539; 33 N. W. Bep. 7. (It has been held in some States that they are not. — Michigan Southern, etc., B. Co. v. McDon- ough, 21 Mich. 165; Louisrille, etc., B. Co. ». Hedger, 9 Bush, 645; Baker v. Bailroad Co., 10 Lea, 304; 2 Borer on Railways, p. 1299, § 27.) But they are not, in the absence of a special contract, liable for dam- ages caused by their vicious habits or propensities. — Michigan, etc., B- Co. V. McDonough, 21 Mich. 165; Hall v. Eenfro, 3 Mete. (Ky.) 51; Kansas Pac. B. Co. v. Beynolds, 8 Kan. 628; Evans v. Fitcbburg B. Co., Ill Mass. 142; Illinois Cent. B. Co. v. Scruggs, C9 Miss. 418'; 13 So. Rep. 698; Louisville, N. O. & T. By. Co. v. Bigger, 66 Miss. 319; 6 So. Bep. 234. ' Or exceptional condition (Missouri Pac. By. Co. v. Texas & P. By. Co., 41 Fed. Bep. 913); as nervousness. — CoUpland v. Housatonic B. Co., 61 Conn. 631; 23 Atl. Bep. 870. Provided the carrier is itself not at fault. — Hall v. Eenfro, 3 Mete. 352 MOKE THAN ORDINARY CARE. [284] owner could only recover the limited sum, for the section protects the carrier during the receiving as well as when the relation of carrier and customer is established (a). (a) Hodyman v. West Mid. By. Co., 33 L. J. Q. B. 233.; aff. 35 L. J. Q. B. 85 (horse kicking girder). (Ky.) 51; Harris v. Northern, etc., E. Co., 20 N. T. 232; Welch v. Pitts- burg, etc., B. Ck)., 10 Ohio St. 65; Evans v. Fitchbnrgh B. Ck>., Ill Mass. 142; East Tennessee, etc., B. Co. v. Whittle, 27 6a. 635; Gibliu v. Nationals. S. Co., 28 N. Y. S. Rep. 69; 8 Misc. Bep. 22. Nor for damages to stock caused by the negligence of the owner under whose control they are during transportation. — Gleason v. Goodrich Transportation Co., 32 Wis. 86; Boderick v. Eailroad Co., 7 W. Va. 64. (In Honeyman v. Oregon &C.B. Co., 13 Oreg. 352; 10 Pac. Bep. 628, it was held that a common carrier who does not assume to act as such in the carriage of dogs, but upon the request of a party consents to carry a dog on a particular occasion, can not be sued as a common carrier for the subsequent death of the dog while under his charge, even though money may have passed to defendant's agent for the carriage ; and that the action must be upon a private contract if recovery is sought.) Ijlmltlng Liability. — In the transportation of live stock the carrier may limit its liability except for negligence. — Chicago, etc., B. Co. v. Abels, 60 Miss. 1017; Dawson v. St. Louis, etc., B. Co., 76 Mo, 514; South, etc., Ala. B. Co. v. Henleln, 52 Ala. 606; Squire v. New York Central B. Co., 98 Mass. 289; Oxley v. St. Louis, etc., E. Co., 65 Mo. 629; Mitchell v. Georgia B. Co., 68 Ga. 644; Welsh r. Pittsburgh, etc., B. Co., 10 Ohio St. 65; McCoy v. Eailroad Co., 44 la. 424; St. Louis, etc, B. Co. V. Piper, 13 Kan. 510; Boehl b. Chicago, etc.. By. Co., 44 Minn. 191; 46 N. W. Bep. '333; Taylor, B. & H. By. Co. ■». Montgomery (Texas), 16 S. W. Bep. 178; Doan v. St. Louis, etc.. By. Co., 38 Mo. App. 408; Alabama G. S. E. Co. v. Thomas, 83 Ala. 343; 3 So. Bep. 802; Missouri Pac. By. Co. o. Harris, 67 Tex. 166; 2 S. W. Bep. 574; Eells v. St. Louis, etc., By. Co., 52 Fed. Bep. 903; Ft. Worth & D. C. By. Co. v. Greathouse, 82 Tex. 104; 17 S. W. Bep. 834; Louisville & N. B. Co. v. Owens, 93 Ky. 201; 19 S. W. Bep. 590; Chicago, E. I. & P. E. Co. V. Witty, 32 Neb. 275; 49 N. W. Bep. 183; Louisville & N. R. Co. V. Wynn, 88 Tenn. 320; 14 S. W. Bep. 311; St. Louis, A. & T. By. Co. ■». Bobbins (Texas), 14 S. W. Bep. 1075; Duntley v. Boston & M. (N. H.), 20 Atl. Bep. 327; Western By. of Ala. ». HarweU (Alabama), 8 So. Bep. 649; Southern Pac. By. Co. v. Maddox, 75 Tex. 300; 12 S. W. Bep. 815. In New York the carrier may exempt itself from liability for losses resulting from Its own negligence (Wilson v. New York Central, etc., E. Co., 97 N. Y. 87; Zimmers o. New York, etc., E. Co., 137 N. Y. 460; 33 N. E. Bep. 642 ; but the intention must be so plainly and distinctly ex- RAILWAY COMPANIES LIVR STOCK DAMAGKS. 353 [285] A suggestion has been made that notwithstanding the section (6), a carrier of goods above £10 undeclared (6) S. 1. pressed that it can not be misunderstood. — Nicholas v. New York Cen- tral, etc., R. Co., 89 N. Y. 370. The carrier mttst famish proper and suitable cars for the transporta- tion of live stock. — Hawkins ». Bailroad Co., 17 Mich. 57; Kimball ». Rutland, etc., B. Co., 26 Yt. 247; Indianapolis, etc., B. Co., v. Strain, 81 m. 604; Illinois Central R. Co. v. Haynes. 63 Miss. 485; McFadden v. Missouri Pac. By. Co., 92 Mo. 343; 4 S. W. Eep. 689. And safe plat- form.— Owen v. Louisville & N. B. Co., 87 Ky. 626; 9 S. W. Bep. 698. Or if a vessel, suitable fittings. — The Brantford City, 29 Fed. Bep. 373. And is liable for damages sustained by a failure to do so. — Welsh v. Pittsburgh, etc, B. Co., 10 Ohio St. 66; I. P. &. C. B. Co. v. Allen, 31 Ind. 394; Bailroad Co. v. Hawkins, 18 Mich. 427; Bailroad Co. v. Hedger, 9 Bush, 645; Union Pac. By. Co. v. Bainey (Colorado'), 34 Pac. Bep. 986; Haynes v. Wabash E. Co., 54 Mo. App. 682; Louisville & N. B. Co. o. Eelsey, 89 Ala. 287; 7 So. Bep. 648. Notwithstanding an express contract to the contrary. — Indianapolis, etc., B. Co. ». Strain, 81 HI. 604; Welsh o. Bailroad Co., 10 Ohio St. 66. Nor that the cars belonged to an Independeht company (Louisville & N. B. Co. V. Dies, 91 Tenn. 177; 18 S. W. Rep. 266), or connecting carrier. — Wallingford v. Columbia & G. B. Co., 26 S. C. 258; 2 8. E. Bep. 19. And though the animals have vicious habits which contribute to the injury. — Smith v. Bailroad Co., 12 Allen, 531 ; Bhodes v. Bailroad Co., 9 Bush, 688. See Selby o. Wilmington & W. R. Co., 113 N. C. 688; 18 S. E. Rep. 88. But not if the shipper had notice of the defect in the cars and con- sented to their use (Great Western Ry. Co. v. Hawkins, 18 Mich. 427), or knew of the. defect and did not inform the company (Betts v. Railroad Co., 21 Wis. 80), or selected his own cars, refusing those of the car- rier.— HI. Cent. R. Co. v. Hall, 58 111. 409. In this county the carrier may by contract provide that the shipper shall be his own judge as to the soundness of the cars he may select for the transportation of stock. — Harris v. Railroad Co., 20 N. Y. 232; Squire v. N. Y. Cent. B. Co., 98 Mass. 239. Damages. — The measure of damage is the difference in value at the time of actual delivery and the market value at the time of delivery stip- ulated in the contract. — Smith v. Bailroad Co., 12 Allen, 531 ; Kansas Pac. By. Co. V. Reynolds, 8 Kan. 623; Sangamon, etc., B. Co. v. Henry, 14 111. 156; International & G. N. R. Co, v. Dimmitt Co. P. Co., 5 Tex. Civ. App. 186; 23 S. W. Bep. 764; New York, L. E. & W..B. Co. t>. Estill, 147 n. S. 591; 13 S. Ct. Rep. 444, affirming 41 Fed. Bep. 849; The Caledonia,, 23 354 MORE THAN ORDINARY CARE. would [286] be liable for s^ross negligence (c), but that is clearly not the law (d). Section 7 of the 18 & 19 Vict. (c) Owen V. Burnett, 2 Oi. & M. 363; (d) Hlnton v. Dlbbln, 2 Q. B. 646. per Yaugban, B. 60 Fed. Eep. 567; Ft. Worth & D. C. Ey. Co. v. Greathonse, 82 Tex. 104; 17 S. W. Eep. 834; Gulf, C. & S. P. Ey. Co. ■». McCarty, 82 Tex. 608; 16 S. W, Eep. 716; East Tenn., V. & G. E. Co. v. Hale, 86Tenn. 69; 1 S. W. Eep. 620; Texas & P. Ey. Co. v. Sims (Tex. Civ. App.), 26 S. W. Eep. 634; Atchison, T. & S. F. Ey. Co. v. Grant, 6 Tex. Civ. App. 674; 26 S. W. Eep. 286 ; Gulf, C. & S. F. Ey. Co. v. McAuley (Tex. Civ. App.), 26 S. W. EepJ 475; Texas & P. Ey. Co. v. Klepper (Tex. Civ. App), 24 S. W. Eep. 367; Douglass v. Hannibal & St. J. E. Co., 53 Mo. App. 473. Conditions Affecting the Transportation of Live Stock. — The fol- lowing conditions affecting the transportation of live stock have been held reasonable : — A condition requiring a demand for damages to be made within five days after the unloading of the stock. — Dawson v. St. Louis, etc., E. Co., 76 Mo. 514. Or ten days. — Case v. Cleveland, etc., Ey. Co. (Ind. App.), 39 N.B. Eep. 476. Or forty days.— Texas & P. Ey. Co. v. Klepper, (Tex. Civ. App.), 24 S. W. Eep, 567. Or thirty days. — Louisville, N. A. & C. Ey. Co, V. Widman, 10 Ind. App. 92; 87 N. B. Eep. 554; Hirshberg 17. Dinsmore, 12 Daly, 429. But see Gulf, C. & S. F. Ey. Co. v. Hume, 6 Tex. Civ. App. 653; 24 S. W. Eep. 915; Same v. Elliot (Tex. Civ. App.), 26 S. W. Eep. 915; Same v. Hume (Texas), 27 S. W. Eep. 110. That the company shall be released from liability for damages accru- ing to stock disconnected and apart from the conduct or running of its trains, and such damages as arise from overloading, or heat. — Mitchell V. Georgia E. Co., 68 Ga. 644. That in consideration of a reduced rate of freight, and a free pass to the shipper the carrier is released from liability by reason of over- loading, suffocation, heat, fire and the like. — Georgia E. Co. «. Seattle, 66 Ga. 488; 42 Am. Eep. 75. That the claim for loss or damage must be made " before or at the time the 'stock is unloaded." — Goggin v. Kansas, etc., E. Co., 12 Kan. 416. But the general rule is to the contrary (Galveston, H. & S. A. Ey. Co. V. Short (Tex. Civ. App.), 25 S. W. Eep. 142; Harned v. Missouri Pac.Ey. Co., 51 Mo. App. 482; Coles v. Louisville, etc., E. Co., 41111. App. 607; Good v. Galveston, H. & S. A. By. Co. (Texas), 11 S. W. Eep. 854; Gulf, C. & S. F. E. Co. v. Vaughn (Texas), 16 S. W. Eep. 775), for its reasonableness depends upon all the circumstances of each case, as whether the carrier had an agent near the place of unloading, to whom notice could be given. — Missouri Fac. Ey. Co. v. Cornwall, 70 Tex. 611; 8 S. W. Eep. 312; Missouri Pac. Ey. Co. v. Childers (Tex. Civ. App.), 29 S. W. Eep. 559. RAILWAY COMPANIES — LIVE STOCK. 355 c. 31 only applies [287] to cases where neglect or de- fault is proved, and does not apply to cases of mere acci- dent (e). (e) HaniBon v. L. B. & 8. 0. By. Co., 31 Ij. J. Q. B. 113. That in consldeiation of a redaced rate, any claim for damages must be made in writing, sworn to and delivered to the general freight agent at a certain place within five days from the time the stock are ud- loaded.— Wabash, etc., K. Co. v. Black, 11 111. App. 465; Selby v. Wil- mington & W. K. Co., 113 N. C. 588; 18 S. E. Eep. 88. That in consideration of a free pass, the shipper shall assume all loss or damage to the stock, except such as might be caused by collision or running off the track. — Georgia B. Co. v. Spears, 66 Ga. 486. But see Hastings v. New York, etc., Ey. Co., 6 N. Y. S. Eep. 836. That stock may, if necessary, be jettisoned for the safety of the ship in which they are carried. — The Enrique, 5 Hughes, 275. A condition limiting the carrier's liability for loss to a certain sum, When the loss is not occasioned by its negligence. — Hart v. Pennsylva- nia, 2 McCrary C. C. 383; Harvey v. Terre Haute, etc., R. Co., 76 Mo. 538. Contracts In consideration of reduced freight, fixing the value of the animal at a certain sum In case of loss, have been held reasonable. — South Ala. E. Co. v. Henlein, 52 Ala. 606; Squire v. N. Y. Cent. E. Co., 98 Mass. 239; Zoush v. Chesapeake & O. Ey. Co., 36 W. Va. 524; 15 S. E. Eep. 185. So have releases of all liability. — Central E. & B. Co. v. Smitha, 85 Ala. 47; 4 So. Eep. 708; Meyers v. Wabash, etc., E. Co., 90 Mo. 98 ; 2 S. W. Eep. 263. Such contracts have been held void as releasing the carrier from lia- bility for its own negligence, and this seems to be the better view. — See Article on the Transportation of Live Stock, 19 Cent. Law Jour. 161, 167; Chicago, etc., B. Co. v. Abels, 60 Miss. 1017; Kansas, etc., E. Co. v. Simpson, 30 Kan. 645; Moulton v. St. Paul, etc., B. Co. 31 Minn. 85. In the same article It is said : " Contention on the subject is avoided by a tariff of two rates, one fixed and the other sliding or proportionate to the valuation set upon the animal by the owner. — Harvey v. Terre Haute, etc., E. Co., 74 Mo. 538; McCauce v. London, etc., E. Co., 3 H. & C. 343; Harrison v. London, etc., E. Co., 2 Best & Sm. 122. " Where a shipper fixes the valuation of a costly animal at a low figure in order to secure cheap transportation, he can recover no more than the amount represented as value on the ground that to permit him to recover more would be a fraud on the carrier. — Harvey w. Terre Haute, etc., E. Co., supra; McCance v. London, etc., E. Co., supra." Miscellaneous. — Under a contract for shipment of hogs by railroad it being agreed that the shipper " assume all risks of transportation " and that the company shall not be responsible for any delays at terminal points, nor for delays at points where stock is to be delivered to connect- 356 MORE THAN OKDINAKY CAEE. [288] The measure of damages is the value of the goods at the place and at the time of delivery (/)• Where f /) O'Hanlan ». G. W. Ky. Oo., 34 L. Williams v. Reynolds, »., Q. B. 221 ; Lord J. Q. B. 1S4 ; IS W. R. 741 ; Rice v. Bazen- v. Mid. Ry. Co., 36 L. J. C. P. 170 ; Collard dale, 30 L. J. Ex. 371. Thus the carrier v. S. E. R Co., 30 L. S. Ex. 393; Simpson Is liable for the falling of prices ; Wilson v. L. & N. W. Ry . Co., 46 L. J. Q. B. 182 t>. Ij. & T. Ry. Co., 30 L. J. O. P. 232; (profit which might have been made at a Borries v. Hatchinson,34 L. J. C. P. 169; partlcnlar show) ; [Bee poet, p. 3S8]. ing lines, it was held that the company was not nesponsible for a delay caused by a riot at the terminal point on its road whereby some of the bogs fell sick and died. — Bartlett v. Pittsburgh, etc., B. Co., 94 Ind. 281. See Gulf, C. & S. F. Ey. Co. v. Gatewood, 79 Tex. 89; 14 S. W. Kep. 913. Liability tor Delay— Strides — Riots.— If damage or delay is caused by the acts of strikers in the employ of the company, the company will be liable. (Pittsburgh, etc., R. Co. v. Hazen, 84 111. 36 ; Blockstock ». N. T., etc., E. Co., 20 N. Y. 48; 66 Ind. 188; 34 Hun, 501; Missouri Pac. Ey. Co. 0. Nevill, 60 Ark. 375; 30 S. "W. Kep. 425; 40 C. L. J. 468; if It is caused by the acts of outside parties, the company wiU not be liable ; if It is caused by. the acts of strikers, employes of the company, though assisted by outside parties, the company will be liable (34 Hun, 50) ; bu>t if it is caused by the acts of strikers after they are discharged from employment, the company will not be liable. — 84 HI. 36 ; 10 111. App. 295. The acts must be violent and irresistible ; for if the company could have themselves, or with the assistance of the authorities, have pre- vented the loss or delay, they will still be liable. — Pittsburgh, etc., E. Co. V. Hazen, 84 111. 36 ; Pittsburgh, etc., B. Co. v. HoUowell, 65 Ind. 188. In Geisner v. Lake Shore, etc.. By. Co., (34 Hun, 50), it was held that defendant was liable in damages for delay in the transportation of goods caused by a strike of its employes, though assisted by outside persons. In the opinion the following cakes are referred to ; — In Weed v. Panama B. Co., (17 N. Y. 362), an action for damages sustained by a railroad passenger by reason of the willful act of the con- ductor in stopping the train, and detaining it over night, it was held that the company was under a contract to transport the passenger with rea- sonable dispatch to his place of destination, and that the plaintiff could recover notwithstandlog the act of the conductor in stopping the train was willful, and that he was acting within the scope of his employment. InBlockstock v. N. Y., etc., B. Co., (20 N. T. 48), an action for dam- ages for delay in the carriage of freight caused by a strike of the engineers of the defendant company, the company was held liable. In Indianapolis, etc., E. Co. ». Yuntgen, (10 111. App. 295), it was said that a *' common carrier is only required to exercise due care and dili- gence to guard against delay, and where its servants are overpowered by a mob, and prevented from forwarding its trains, it will not be held RAILWAY COMPANIES DELAY IN TRANSPORTATION. 357 special circumstances under which a contract is made are known to both parties, the carrier is liable for the loss which would ordinarily flow from those circumstances (g), but not for a loss which could not fairly be contemp- (g) Hadlej ti. Baxendale, 9 Exch. 841 ; O. P. 177 ; Corry «. Thames Iron Works, Hales V. L. & N. By. Co., 32 L. J. Q. B. 37 L. J. Q. B. 68. 292; WoodRer v. Gt. W. Ey. Co., 36 L.J. responsible for a delay, provided It omits no reasonable effort to secure the property ia course of transportation; that lor a loss occasioned by the refusal of the company's servants to do their duty, the company is responsible ; but for a delay resulting solely from the lawless violence of men not in its employ the company is not responsible." In this case the court held plaintiff vcas not entitled to recover, ^s it appeared from the evidence upon the trial that but a small portion of the strikers had been in the employ of the defendant company, and that they had left their em- ployment and joined the strike, and the great body of strikers were men not in the employ of the company. In Pittsburgh, Fort Wayne & Chicago E. Co. o. Hazen, (84 111. 36; 25 Am. Bep. 222), the rule was laid down that a common carrier is excused for delay in the carriage of goods when the delay is caused solely by the violent and irresistible interference of strikers recently discharged from the carrier's employment, and it was stated that for a delay resulting from the refusal of the employes of the carrier to do duty the carrier is liable. In Pittsburgh, etc., R. Co. ». HoUowell, (65 Ind. 188; 32 Am. Bep. 63), an action against a common carrier for delay in receiving and carrying live stock, the defendant answered that the delay was caused solely by reason of the fact "that although the defendant was prepared to receive and carry goods, an armed multitude of people in rebellion against the laws of the State, which neither the defendant nor the civil authorities of the State was able to control, by force and arms drove away the engineers and firemen operating the defendant's engines and cars, thus preventing defendant from receiving and carrying the plain- tiff's live stock." On demurrer the answer was held sufficient. The reply alleged that the " cause of such pretended insurrection was an un- just and oppressive reduction by the defendant of the wages of its em- ployes, which induced them to strike and refuse to work, and to assemble in a peaceable ' body to demand a restoration Of their former rate of wages, bat without offering any resistance to the civil authorities; " and this was held insufficient, as was also a reply alleging that " such insur- rection was composed solely of employes of the defendant, who peace- ably and without arms or violence, and on account of an unjust and oppressive reduction by the defendant of their wages, refused to continue in the defendant's employ until their former rate of wages was restored, and who had peaceably assembled in a small body to petition therefor." 358 MOKE THAN ORDINARY CARE. lated by the parties, such as general loss of business, or profits or wages (h). [289] The notice of the special circumstances in many cases leads to the inference that the carrier undertook to be, respotisible for the special dam- ages : but, of course, that inference does not arise where the damages are not such as might be expected to flow from the circumstances (i). In an action for trover in wrongfully refusing to deliver champagne which the plaintiff had bought of the defendant, the price at which the plaintiff had resold it was recovered, although the defendant had no knowledge or notice of the purpose for which it was bought {h). A question of considerable difficulty often arises where a railroad company is forwarding goods to a destination beyond its own line, and the goods are lost beyond its own line. Probably the difficulty arises from not consid- ering accurately what the duty or contract is which the defendant company has undertaken to perform. If a car- rier contracts to carry from A. (through B.) to C, that is (ft) Crouoh V. G. N. Ey. Co., 11 Exch. (i) See per Blackburn, J., In Home 743; Le Peluture v. S. E. By. Co., 2 L. T. v. Mid. Ry. Co., 42 L. J. C. P. 69; L. E. & 170; Gee v. L. & T. Ey. Co., 30 L. J. Ex. 0. P. 131. 11 ; Home v. Md. Ey. Co., L. E. 8 C. P. C*) France v. Gandet, L. E. 6 Q. B. 199. 131 ; 42 L. J. 0. P. 69 (boots for the French army, cessation of war). Damages. — When goods are lost or destroyed, the measure of damages is their market value at their place of destination at the time when they should have arrived, less the cost of carriage. — Perkins ». The Portland, etc., R. Co., 47 Me. 673; Brown v. Camden, etc., R. Co., 83 Pa. St. 316; Wood on Railways, p. 1937; Galveston, H. & S. A. By. Co. ». Ball, 80 Tex. 602; 16 S. W. Rep. 441. When goods are unreasonably delayed in transportation, the measure of damages is the difference in their value at the time and place, when and where they should have been delivered, and their value at the time of actual delivery. — Peet v. The Chicago, etc., Ry. Co., 20 Wis. 594f Weston v. Grand Trunk, etc., R. Co., 54 Me. 376; Condict o. Grand Trunk, etc., R. Co., 64 N. Y. 500; Devereux v. Buckley, 34 Ohio St. 16; King w. Woodbridge, 34 Vt. 565; Sisson o. Cleveland, etc., R. Co., 14 Mich; 489; Sangamon, etc., R. Co. v. Henry, 14 111. 156; Bowden v. San Antonio & A. P. Ry. Co. (Tex. Civ. App.), 25 S. W. Rep'. 987; East KAILWAY COMPANIES DAMAGES. 359 [290] a contract of carriage, and he is liable as a carrier all the way to C, although some other carrier may in fact be carrying the goods from B. to C. But if he contracts to carry from A. to B., and agrees to facilitate as far as he pleases the further transit of the goods to C, but says he will not undertake their carriage to C, then if they are lost between B. & C. he is not liable as a carrier (I). It is therefore an unreasonable condition in a contract to carry from A. to C, to say that the defendant shall under no circumstances be liable for loss between B. and C. (m) ; but it is a binding condition in a contract to carry from A. to B., and to assist in forwarding to C, to say that the defendant shall under no circumstances be liable for loss between B. and C, for the latter part is not a contract to carry if the Act does not apply (n). W Fowler ti. Gfl W. Ey. Co., 7 Exch. (m) Bristol & Exeter By. ». Collins. 699; Aldrldge v. G. W. By. Co., 33 L. J. mpra. C. F. 161; Bristol & Exeter By. V. Collins, {«) Fowler ». G. W. By. Co., and 7 H. L. 0. 194. ■ Aldridge v. 6. W. Ey. Co., lupra- Tenn., V. & G. Ky. Co. v. Johnson, 86 Ga. 497; H S. E. Rep. 809; Atchi- son, T. & S. F. E. Co. V. Lawler, 40 Neb. 356; 58 N. W. Eep. 968; Gal- veston, H. & S. A. Ry. Co. v. Silegeman (Tex. Civ. App.'), 23 S. W. Eep. 298; Gulf, C. & S. F. Ey. Co. v. Pettit, 3 Tex. Civ. App. 588; 22 S. W. Eep. 761; Missouri Pac. Ey. Co. v. Eussell (Texas), 18 S. W. Eep. 594; Missouri Pac. Ey. Co. v. Breeding (Texas), 16 S. W. Eep. 184; Murrell V. Pacific Exp. Co., 54 Ark. 22; 14 S. W. Eep. 1098; Echols v. Louisville & N. E. Co., 90 Ala. 366; 7 So. Eep. 656; Western Mfg. Co. v. The Guiding Star, 37 Fed. Eep. 641 ; Hudson v. The Northern Pac. E. Co. (Iowa), 60 N. W. Eep. 608. Where the carrier has notice of the special purpose for which the consignee Intends using the freight, special damages may be recovered for delay In transportation. — Gulf, C. & S. F. Ey. Co. ■». Gilbert, 4 Tex. Civ. App. 366; 22 S. W. Eep. 760. A loss to plaintiff's business will not be considered in estimating damages against a carrier for non-delivery of goods. — Baltimore, etc., E. Co. V. Pumphrey, 59 Md. 390. When goods are injured the measure of damages is the difference between their value in the condition in which they are delivered and their value at the time and in the condition in which they should have been delivered. — Winne v. Illinois Central E. Co., 31 la. 583. {n) In this country a carrier's liability for goods does not extend be- 360 MQEK THAN OEDINART CARE. Both the above-mentioned statutes apply to passengers' luggage (o). (o) Cohen v. S. E. Ey. Co., L. E. 1 Ex. D. 217; 45 L. J. Ex. 298; infra. In 0. A. yond the terminus of Its own route in the absence of a contract to carry them to the point of destination. — Packard '». Laylor, 35 Ark. 402; Mich. Cent. E. Co. v. Mineral Springs Mnft. Co., 16 Wall. 318; Grover & Baker Sewing Machine Co. v. Missouri Pac. E. Co., 70 Mo. 672; Elmore ». Naugatuck E. Co., 23 Conn. 457; Phillips v. Railroad Co., 78 N. C. 204; Detroit, etc., E. Co. ». McKenzie,43 Mich. 609; Clyde®. Hubbard, 88 Pa. St. 358; Lock Co. v. Eailroad Co., 48N. H. 355; Irish b. Railroad Co., 19 Mifln. 376 ; Perkins v. Eailroad Co., 47 Me. 573; Burroughs v. Eailroad Co., 100 Mass. 26; Crawford c. Eailroad Co., 51 Miss. 522; Nashville, etc., R. Co. V. Sprayburg, 8 Baxt. 341; Piedmont Mnfg. Co. ■o. Columbia, etc., R. Co., 19 S. C. 353; Knott i). Raleigh & G. E. Co., 98 N. C. 73; 3 S. E. Eep. 735; Wichita Val. Ry. Co. v. Swenson (Tex. Civ. App.), 25 S. W. Eep. 47; Hunter v. Southern Pac. Ry. Co., 76 Tex. 195; 13 S. W. Eep'. 190; Atchison, T. & S. F. R. Co. o. Cochran, 43 Kan. 225; 23 Pac. Eep. 161; McConnell b. Norfolk & W. E. Co., 86 Va. 248; 9 S. E. Rep. 1006; Bast St. Lou4s Connecting Ry. Co. o. Wabash, etc., Ey. Co., 123 111. 694; 16 N. B. Rep. 45; Summer v. Walker, 30 Fed. Rep. 261; Ortt v. Minneapolis & St. L. Ry. Co., 36 Minn. 396; 31 N. W. Eep. 519. This rule does not prevail In Alabama (Mobile, etc., E. Co. v. Cope- land, 63 Ala. 625; 35 Am. Rep. 13; Montgomery, etc., R..Co. v. Culoes, 75 Ala. 587) ; or Illinois (Illinois, etc., R. Co. v. Wilcox, 84 lU. 239; 28 Am. Rep. 451); and, perhaps, Georgia; — Southern Express Co. v. Shea, 38 Ga. 519 ; Georgia E. Co. v. Cole, 68 Ga. 623. This liability is not changed by the fact that the goods received are marked and directed to a place beyond the terminus of the carrier's route. — Detroit, etc., Ey. Co. v. McKenzle, 43 Mich. 609; Nutting v. Connecticut Elver R. Co., 1 Gray, 502; Illinois Cent. E. Co. v. Kerr, 68 Miss. 14; 8 So. Bep. 330. Contra, Ohio & M. E. Co. v. Emrlch, 24 111. App. 245. Either the goods must be delivered or notice of their arrival must be given to the connecting carrier, and a reasonable time afforded for tak- ing them before the liability of the first carrier ceases. And if the goods are destroyed by fire after their arrival and before the connecting carrier has notice thereof, and a reasonable opportunity to take them, the first carrier Is liable. — Erie Ey. Co. v. Lockwood, 28 Ohio St. 868; Mich. Cent. E. Co. v. Mineral Springs Mnfg. Co., 16 Wall. 318; Wehmanv. Minneapolis, etc., Ry. Co. (Minnesota), 59 N. W. Rep. 546; Melbourne V. Louisville & N. E. Co., 88 Ala. 443; 6 So. Eep. 762; Palmer v. Chicago, B. & Q. E, Co., 56 Conn. 137; 13 Atl. Rep. 818; Southard v. Minneapolis, etc., Ey. Co. (Minnesota), 62 N. W. Rep. 442. The carrier may by contract extend its liability beyond Its own line. — \ RAILWAY COMPANIES — LIABILITY BEYOND EOOTE. 361 [291] Eailway companies are, it would seem, apart ftom the statute or special conti;'act, insurers of passengers' luggage which they have taken under control (p). The quantity of luggage which a passenger is allowed to take with him, without any extra charge being made, is regulated by the private Act of the particular company ; but when a passenger takes an ordinary ticket for himself, he is paying vp) MacTOW 0. G. W. Ky. Co., L. B. 6 the Court of Appeal, bnt the case of Q. B. 612; Coien v. S. E. Ey. Co., L. E. I Stewart ti. L. & N. W. Ey. Co., in which Ex. D. 217 ; 2 Ex. D. 253 ; 46 L. J. Ex. 418, the coutiaxy was suggested, is overraled, 0. A, This la not expressly decided In Cobb V. Illinois Central B. Co., 38 la. 601 ; Phillips v. North Carolina R. Co., 78 N. C. 294; Irish v. Milwaukee, etc., E. Co., 19 Minn. 376; Central E. & B. Co. v. Georgia F. & V. Exchange, 91 Ga. 389; 17 S. E. Rep. 904; Missouri Pac. E. Co. v. Twiss, 85 Neb. 267; 53 N. W. Rep. 76; International & G. N. R. Co. v. Anderson, 3 Tex. Civ. Ap'p. 8 ; 21 S. W. Rep. 691; Beard ». St. Louis, etc., Ry. Co., 79 la. 527; 44 N. W. Rep. 803; Savannah F. & W. Ry^ Co. v. Pritchard, 77 Ga. 412; 1 S. E. Rep. 261; Pereira v. Central Pac. R. Co., 66 Cal. 92; Gulf, C. & S. F.Ey. Co. V. Insurance Co. (Tex. Civ. App.), 28 S. W. Rep. 237; Davis w. Jackson- ville S. Line, 126 Mo. 69; 28 S. W. Rep. 965. So, by contract, the liability of connecting carriers may be limited, — Texas & P. Ry. Co. ». Adams, 78 Tex. 372; 14 S. W. Rep. 666; Jones ». Cincinnati, S. & M. Ry. Co., 89 Ala. 376 ; 8 So. Rep. 61 ; Western Ry. Co. of Ala. V. Harmell, 67 Ala. 341 ; 11 So. Rep. 781; Central R. & B. Co. v. Bridger, 94 Ga, 471; 20 S. W. Rep. 349. Or it may agree that it shaU not be held liable for loss or damage except as forwarder, only beyond its own line. — Bryan u. Memphis, etc., R. Co., 11 Bush, 597; Colton v. Cleveland, etc., E. Co., 67 Pa. St. 211; Snider V. Adams Express Co., 63 Mo. 376; Lamb v. Camden, etc., R, Co., 46 N. T. 271. But in the absence of a special contract to deliver the goods beyond its own line, the general n)Ie Is as stated that the carrier's liability is at an end when it has safely delivered the goods to the connecting carrier. (Associated railway companies may be liable as partners in such cases when a recovei^ may be had from them jointly or severally. — Block v. Railroad Co., 139 Mass. 308; 21 C. L. J. 606, note 597; 1 N. E. Rep. 348; Atchison, T. & S. F. Ry. Co. v. Grant, 6 Tex. Civ. App. 674; 26 S. W. Rep. 286; Galveston, H. & S. A. Ey. Co. v. Johnson (Tex. Civ. App,), 29 S. W. Rep. 428. The giving of a through rate does not Increase its liability, nor does the giving of a receipt showing that the goods were consigned to a point beyond its line.— Goldsmith v. Chicago, etc., H. Co., 12 Ho. App. 479, 362 MORE THAN OEDINARY CARE. a part of the price for the lugga,ge he is taking with him (q). [292] It was held in one case that a passenger might agree that the luggage should be carried at his own risk (r), but it has been decided that the 7th section of the Eailway and Canal Traffic Act applies, and that the company are liable (s), notwithstanding such agreement. In Kumsey v. N, E. Ey. Co., the plaintiff took an excursion ticket, the condition being that no luggage should be taken; and he, in fraud of the company, took his portmanteau with him, and it was held that the company had a lien upon the port- manteau for the extra charge which the plaintiff would have paid in taking an ordinary ticket. Here the company had not undertaken to carry the plaintiff's portmanteau at all under the circumstances (<). When a passenger retains his own personal control over his own luggage the company are no longer insurers of its safety, but are liable pnly when negligence upon their part is proved (m). The company's liability extends to the receiving and de- (9) Cohen v. B. E. By. Co., nipra. As etc., B. Co., 26 6a. 61; Southwestern R. to what is "passengers' Inggage," see Co. v. Bently, 51 6a. 311; Xordemeyer 6t. X. By. Co. V. Shepherd, 8 Exch. 30 v. Loescher, 1 Hilt. 499.] (Ivory handles for sale) ; Oahlll o. L. & . (») Talley v. G. W. By. Co., L. E. 6 C. N. W. Ey. Co., 10 0. B. N. 8. 154; 13 0. B. P. 44; 40 L. J. 0. P. 9; Bergheim v. 6t. N. S. 8l6; 31 L. J. C. P. 271 (box labeled Eastern By. Co., 3 0. P. D. 221. The " glass " ) ; Keys v. Belfast Ey. Co., 9 H. mere fact of the Inggage being placed L. 0. 556; Phelps v. L. & N. W. Ey. Co., by a porJ:er in the carriage with thepas- 34 L; J. 0. P. 259; Hndston v. Mid. Ey. sengerdoes not showtl^at the passenger Co., L. E. 4 Q. B. 366 ; 38 L. J. Q. B. 213 has reassamed his control ; see Richards (Child's rocking-horse); Macrow v. 6. v.L. B. & S. C. Ey. Co., 7 0. B. 839; see W. Ey. Co., mpra (linen). also Kent v. Mid. Ey. Co., L. E. 10 Q. B. (r) Stewart ». L. & N. W. Ey. Co., 1; 44 L. J. Q. B. 18 (changing from one 33 L. J. Ex. 199 (excursion train). station to another luggage not taken (») Cohen v. S. E. Ey. Co., supra. A into control of second company, passen- passenger may agree to travel at his own ger booked throngh ; see Mid. Ry. Co. v. risk, becanse the Eailway Act only ap- Bromley, 17 0. B. 372; where passenger piles to goods, see post, pp. 309, 310. had not booked thiongh). Where Ing- («) Bamsey ti. N. E. Ey. Co., 32 L. J. gage is received by the company as the 0. P. 244. That railway companies have luggage of the servant, but it turns out a lien upon Inggage for unpaid fares, to be his master's, who Is following by see Wolf V. Summers, 2 Camp. 631 ; Wal- another train, the company are not Ha- lls V. L. & S. W. Ey. Co., L. B. 5 Ex. 62; i)le for the loss; Beeoher v. G. E. Ey. 39 L. J. Ex. 57; [Hutohings v. Western, Co., L. E. 5 Q. B. 241; 39 L. J. Q. B. 122. RAILWAY COMPANIES BAGGAGE. 363 livering of the passenger's luggage to and from the car- riage in which the passenger arrives or departs (x). If the passenger gives special directions as to labeling, etc., to a servant of the company, who thereupon undertakes the [293] charge, the company are answerable for its safety (y), notwithstanding a notice to the effect that luggage must be left at the cloak-room (a). Where a passenger took a ticket and traveled on the Great Western line, and at a junction with the defendants' line his luggage was taken charge of by defendants' serv- ants and lost, the defendants were held liable, although there was no express contract with them ( a ) . As warehousemen of luggage, railway companies are in a different position from that in which the law places them, whilst they exercise their duties as carriers. In the absence of any condition limiting their liability, they are liable (to the extent of the injury done) for ordinary negligence, as in the case of an ordinary bailee for reward (6). Ware- (,x) Agreel v. L. & N. W. By. Co., 34 L. (z) Lovell v. D. 0. & D. Ky. Co., 45 L. T. 134; Bicbiurda v. Ii. B. & S. C. By. Co., J. Q. B. 476. 7 0. B. 839; Batcher «.L.&S. W.Ey.Oo., (o) Hopper ». L,. & N. W. By. Co., 16 C. B. 13. ' 43 L. T. N. S. 570. (y) AgieUv.li. ATS. W.Ry.Oo., supra. (,b) Aitte. Baegage. — Common carriers are insurers of baggage (Hannibal R. Co. V. Swift, 12 Wall. 262; Bomorw. Maxwell, 9 Humph. 621; Powell V. Myers, 26 'Wencl. 691; Woods o.Devins, 13 111. 746) when it is deliv- ered into their custody and placed under their charge. — Kinsley V. Lake Shore, etc., B. Co., 125 Mass. 54; Cohen v. Frost, 2 Duer, 335; Toledo, St. L. & K. C. E. Co. ». Tapp, 6 Ind. App. 304; 33 N. E. Eep. 462; International & G. N. B. Co. v. Folliard, 66 Tex. 603; 1 S. W. Bep. 624; Hamburg American Packet Co. v. Gattman, 127 111. 598; 20 N. E. Bep. 662, afSrming 27 111. App. 182. They are not liable for baggage retained in the possession of the passenger. — Tower v. Utica, etc., B. Co., 7 Hill, 47; First Nat. Bank of Greenfield v. Marietta,,etc., B. Co., 20 Ohio St, [259; Grosvenor .v. N. Y. Cent., etc., E. Co., 39 N. Y. 34; Henderson v. Louisville, etc., B. Co., 20 Fed. Bep'. 230. The term '' baggage " has been defined to be such articles as a traveler usually carries with him for his comfort and convenience, both during the journey and daring his stay at the place of destination. — 3 Wood on Bailways (1894), pp. 1798, 1807, 1818. In England and California the 364 MOKE THAN ORDINARY CARE. housemen come withia what Lord Holt calls the second sort of bailees, and are bound to take reasonable care term " luggage " obtains in law instead of " baggage." — Pflster v. Central Pac. R. Co., 70 Cal. 169; 11 Pac. Rep. 686. Baggage has been held to include wearing apparel and jewelry worn by the passenger and his family traveling with him (Smith v. Boston, etc., R. Co., ii N. H. 325; Mississippi, etc., B. Co. v. Kennedy, 41 Miss. 671 ; McCormick v. Hudson River R. R. Co., 4 E. D. Smith, 181; Central Trust Co. V. Wabash, etc., Ry. Co., 30 Fed. Rep. 417); an opera glass (Toledo, etc., R. Co. v. Hammond, 33 Ind. 379) ; fire arms (Wood v. Devins, 13 111. 746) ; manuscript books of a student (Hopkins v. West- cott, 6 Blatch. 64); an illustrated catalogue, prepared and used by a traveling salesman (Staub v. Eeudrick, 121 Ind. 226; 23 N. E. Rep. 79) ; mechanic's tools (Kansas City, Ft. Scott, etc., R. Co. v. Morrison, 34 Kan. 602; 6S Am. Rep. 262); surgical instruments carried by a surgeon (Hannibal R. Co. v. Swift, 12 Wall. 262), a carpenter's tools (Porter ».■ Hildebrand, 14 Pa. St. 129) ; a watch (Jones v. Voorhees, 10 Ohio, 146), linen (Duffy v. Thompson, 4 E. D. Smith, 178), lace for the use of a Russian lady traveling in this country (New York Central, etc., R. Co. V. Fraloff, 100 U. S. 24), bedding of a steerage passenger (Hirschon v. American Packet Co., 2 J. & S. (N. Y. Superior Court 521) ; but not when packed in a trunk and not used for the voyage (ConoUy v. Warren, 106 Mass. 146), a reasonable sum of money for traveling expenses (Mer- rill ,». Grinnell, 30 N. Y. 694; Fairfax v. N. Y. Central, etc., R. Co., 73 N. Y. 167; Dunn v. New Haven Steamboat Co., 68 Hun, 461; 12 N. Y, S. Rep. 406. $90,000, is not " luggage."— Pflstei? v. Central Pac. E. Co., 70 Cal. 169; 11 Pac. Rep. 686, supra. " What Is a reasonable amount of money for traveling expenses depends on the length of the journey, the mode of travel, the position In life of the passenger, and should not ex- ceed what a prudent person would take with him under the circuin- stances. What is such an amount is a question for the jury. — Thomp. Carriers of Passengers, 611. Indeed, it is didScult to lay down any general rules as to what consti- tutes baggage. One writer has said : " The rules adopted by the courts as to what constitutes ordinary baggage are not always consistent nor uniform, and the doctrine of some of the cases carried out to their legit- imate sequence would almost admit of a passenger taking along with him his entire household furniture if he is a poor man, and needs the furniture for use at the end of his journey, and it can be packed in trunks or boxes."— 3 Wood on Railways, 1800 (citing Oumit v. Henshaw, 36 Vt. 604, and Parmelee ». Fisher, 22 111. 212). Theatrical paraphernalia, advertising matter, etc., not required for the pleasure or necessity of members of the troupe during the journey, are not "baggage." — Oakes v. Northern Pac. R. Co., 20 Ore. 392; 26 Pac. Rep. 230. BAGGAGE LIMITING LIABILITY. 365 only (c). With respect to passengeps' luggage deposited in a cloak-room, the railway companies always endeavor to attach special conditions to this contract of bailment. The conditions must be reasonably shown to be present to the mind of the passenger, or, at all events, the cir- cumstances must be such as to lead to the inference that he must have known of the conditions (d). If the (c) Seorle ji. Iiaverlck, L. B. 9 Q. B. (d) Watklns v. BymlU.lO Q, B. D. 178. 132. It has been held that merchandise is not baggage (Hutchings v. West- em, etc., B. Co., 2S 6a. 61; Mississippi B. Co. v. Kennedy, 41 Miss. 671; Collins v. Boston, etc., E. Co., 10 Cnsh. 506; Smith v. Boston, etc., E. Co., 44 N. H. 325; Metz v. California S. E. Co., 85 Cal. 329; 24 Pac. Eep. 610; Blumenthal ». Maine Cent. E. Co., 79 Me. 550; 11 Atl. Eep. 605; Spooner v. Hannibal & St. J. B. Co., 23 Mo. App. 403); and this inclndes samples carried by a salesman (Stimpson v. Connecticut Eiver E. Co., 98 Mass. 83; Southern Kan. Ey. Co. v. Clark, 52 Kan. 398; 34Pao. Eep. 1054; Talcott v. "Wabash E. Co., 66 Hun, 456; 21 N. Y. S. Eep. 318 ; Humphreysc. Perry, 148 TJ. S. 627; 13 S. Ct. Eep. 711; Gurney v. Grand Trunk Ey. Co., 59 Hun, 625; 14 N. T. S. Eep. 321) ; neither is the prop- erty of another person (Dunlap v. International Steamboat Co., 98 Mass. 371; Andrews ■». Ft. Worth & D. C. Ey. Co. (Tex. Civ. App.), 26 S. W. Eep. 104C) ; nor a manuscript of a work intended for publication (Hannibal, etc., E. Co. v. Swift, 12 Wall. 262) ; but a carrier may be held liable for merchandise by accepting it as baggage, though knowing it is not baggage. — Eoss v. Minn. E. Co., 4 Mo. App. 582; Hannibal, etc., E. Co. V. Swift, 12 Wall. 262; Texas, etc., E. Co. v. Capps, S. C. Tex. 18 Cent. Law Jour. 211. Contra, Blumantle v. Fitchburg E. Co., 427 Mass. 322. Limiting Liability. — A carrier cannot limit its liability for passengers' baggage, by a notice printed upon a ticket or check, that the baggage is at the risk of the owner. — Camden, etc., E. Co. v. Belknap, 21 Wend. 354; Malone v. Boston, etc., E. Co., 12 Gray, 388. A mere notice on the back of a ticket limiting the liability of the car- rier does not raise the presumption that the passenger read the same. — Eawson ». "Pennsylvania K. Co., 48 N. T. 212; Mobile, etc., B. Co. v. Hop- kins, 41 Ala. 486; Brown v. Eastern E. Co., 11 Cnsh. 97. But where the passenger had time to examine such notice before embarking, he is bound thereby Potter v. The Majestic, 60 Fed. Eep. 624; 9 C. C. A. 161. A carrier's ticket is not a contract, and the purchase of a ticket does not bind the passenger to assent to its terms. — Malone v. The Boston, ' etc., E. Co., 12 Gray, 388. 366 MOEB THAN ORDINARY CARE. jury think that the circumstances were such as to lead to [294] the inference that the passenger had ho reasonable notice that there were any conditions in existence he would It has been held in Pennsylvania that a railroad company may limit its liability for the baggage of a passenger by a general notice, but the terms of the notice must be clear and explicit, and knowledge of such notice must be brought home to the passenger. — Pennsylvania Central E. Co. ». Schwarzenberger, 46 Pa. St. 208. Througb Ticket. — A carrier selling a through ticket to a passenger to a certain point is bound to carry him safely to that point though it is beyond the carrier's line and over the lines of connecting carriers. — Illi- nois Cent. E. Co. v. Copeland, 24 111. 337; Central E. Co. v. Combs, 70. Ga. 533; Burnell v. New York, etc., E. Co., 45 N. T. 184; Candee v. Eail- road Co., 21 Wis. 682. But not unless the initial carrier expressly assumes the additional liability. — Central Trust Co. v. Wabash^'etc, E. Co., 31 Fed. Eep. 247. The weight of authority is in favor of this rule. — Thomp. Carriers Passengers, 432. Such contract is a contract with each several carrier Lin v. Terre Haute, etc., E. Co., 10 Mo. App. 125. There are authorities holding that the carrier is not liable beyond the end of its route, and Mr. Eorfir lays it down that " the purchaser of a through ticket over several conneqting but not uniting lines, who checks his baggage over said lines is entitled to recover for the loss only from the company upon whose line it is lost. — 2 Borer on Bail ways, p. 997 ; citing Kessler v. New York Central,' etc., E. Co., 61 N. Y. 688; Philadelphia, etc., E. Co. V. Harper, 29 Md. 339; Chicago, etc., E. Co. v. Fahey, 62 Bl. 81, and see Thomp. Carriers of Passengers, 433; Savannah, F., etc., By. Co. V. Mcintosh, 73 Ga. 632. A just and reasonable rule would seem to be that the passenger may hold the first carrier liable in any event. He is than relieved of the bur- den of proving by which carrier the loss was caused. — Kessler v. New York Central, etc., B. Co., 61 N. Y. 538 ; Barter v. "Wheeler, 49 N. H. 9; Illinois Central B. Co. v. Frankenberg, 64 111. 88; Hyman v. Central Vt. E. Co., 66 Hun, 202; 21 N. Y. S. Eep. 119; Talcott v. Wabash E. Co., 66 Hun, 456; 21 N. Y. S. Eep. 318. See as to liability of connecting car- riers as partners, Block v. Bailroad Co., 139 Mass. 308; 21 C. L. J. 606; Atchison, T. & S. F. B. Co. v. Eoach, 35 Kan. 740; 12 Pac. Eep. 93. Arrival of Baggage. — When the baggage has reached its destination, and the passenger has had a reasonable opportunity of receiving and removing it, the carrier's liability as such ceases. — Bock Island, etc, E. Co. V. Fairclough, 62 111. 106; Louisville, etc., E. Co. «. Mahan, 8 Bush, 184; Burgevin v. New York C. & H. E. Co., 69 Hun, 479; 23 N. Y. S. Eep. 416; Bonner v. De Mendoza (Texas), 16 S. W. Eep. 976; Gulf, C. PASSENQEUS — BAGGAGE. 367 not [295] be bound, but if they find the contrary and that the passenger did not choose to read them, he would be bound (e). [296] Carriers of passengers are not insurers, but are only liable where negligence is proved {/)• It seems that the driver of a stage-coach ought to inform the passengers of any danger of the road, so that they may have the option of alighting {g). A person who lets out carriages is not an insurer against all defects, but he is an insurer against all defects which care and skill can guard against, and his duty is to supply carriages as perfect for the purpose as care and skill can render them. Something more than ordinary care and attention is required. The expression often used of " rea- (e) Van Tol v. S. B. By. Co., 12 O. B. see the recent case of Burke v. 8. M. By. N. S. 75 ; 31 L. J. 0. P. 241 ; (ticket condl- Co., 49 L. J. O. P. 107 ; L. E. 5 C. P. D. p. tion on back) ; Parker ». S. E. By. Co., L. 1 ; Watklns v. EymiU, supra (repository B. 2 0. P. D. 416; C. A. 46; L. J. C. P. 768; ticket, referring on the face of it to con- Henderson V. Stevenson, Xi. li. 2 Sc. App. dttions) ; see also other cases as to noti- 470 (ticket, on face "see back"}; the ces of conditions of carriage, pp. 277- defendant was acting in his capacity as 281; [seein/ra]. carrier, not warehonseman in this case. (/) Bedhead v. Mid. By. Co., L. B. 4 Harris v. 6t. W. By. Co., L. B. 1 Q. B. D. Q. B. 379; 38 L. J. Q. B. 169; Ex. Ch. Har- 515; 45 L. J. Q. B. 729 (ticket, on face ris i). Costar, 1 C. & P. 636 ; White ». Bonl- " subject to conditions omother side.") ton, Peake, 81 ; Christie v. Griggs, 2 In the last two cases the plaintiff knew Campbell, 79; Crofts v. Waterhonse, U there was writing on the back, bnt did Bing. 319 (stage-coaches), not know or believe there were any con- (jg) Dudley v. Smith, 1 Camp. 167. ditlons, and he was held not bonnd; but & S. F. By. Co. V. Jackson (Texas), 95 S. W. Sep. 128; Laffrey v. Grummond, 74 Mich. 186; 41 N. W. Rep. 894; Jacobs v. Tutt, 33 Fed. Bep. 412. After that it is only liable as warehouseman. — Jones v. Bailroad Co., 50 Barb. 193; Both v. Bailroad Co., 34 N. Y. 548; Galveston, H. & S. A. By. Co. V. Smith, 81 Tex. 479; 17 S. "W. Rep., 133; Chicago & A. R, Co. V. Addizoat, 17 111. App. 632. What is a reasonable time for a passenger to claim and remove his baggage Is a question of fact to be determined by the jury. — Ouimit v. Henshaw, 35 Vt. 602; Louisville, etc., R. Co.». Mahan, 8 Bush, 135. In the case last cited where baggage was left over night at a station, which was destroyed by fire together with its contents, the carrier's liabil- ity was held to be that of a bailee for hire. S. P., Wald v. Louisville^ etc., R. Co., 92 Ky. 645; 18 S. W. Rep. 860. 368 MOKE THAN ORDINAKT CABE. sonably fit" is ambiguous. It denotes something short of " absolutely fit," but the difference is iiot great {h). [297] The duty of railway companies, as carriers of passengers, is to take due care (including in that term the use of skill and foresight) (i), and they seem bound to take more than ordinary care by reason of the danger to which pas- sengers are exposed in traveling at a great speed, and without any power to avoid or mitigate any danger which may arise. This duty arises out of the contract to carry between themselves and the passenger, and is superadded by the law to the contract. The passenger, upon being injured by the breach of this duly, may elect to sue in the form of tortor of contract, but the foundation of the action is the contract (^). This contract seems to be made by the fact of the pas- senger being lawfully within the carriage, and it is imma- terial whether he himself negotiated the contract or paid the fare (?). But, where a servant has taken a railway ticket for himself, and sustains injuries by reason of the company's negligence, the master cannot sue, because the tort arises out of a contract to which the^ master is not a party, and there is no duty towards the master (m), but, qucere, whether the master could sue if he had taken the ticket himself; probably not unless he had given notice to the company that he was paying for the conveyance of his serv- ant. But where the servant who has taken a ticket from one company has been injured by the wrongful act of an- other company with whom neither master nor servant has contracted, the master may sue (n). It should seem that (A) Hrman v. Nye, 6 Q. B. D. 685. 442 ; 36 L. J. Q. B. 201 (mother took child (i) Bedhead v. Mid. By. Co., mpra. over age without ticket). (£) Alton V. Mid. By. Co., 34 ll J. C. (m) Alton i>. Mid. By. Co., supra; see P. 292; 19C. B. N. S. 213. [Faixmoant B. AmesD. Union By. Co., 117 Mass. 641; 19 B. V. Stntlei, 54 Fa. St. 375 ] Am. Bep. 426. (I) Marshall v. Y. & X. By. Co., 11 0. (») Berrlnger v. 6t. East. By. Co., 48 B.6S6 (master took ticket for servant) ; L. J. 0. P. D. 400:4 O. P. D. 163; Lopes, J. Austin V. G. W. By. Co., L. E. 2 Q. B. RAILWAY COMPANIES CONTRACT. 369 this last case did not turn on a question of negligence, there being no duty to be done on the part of such other com- [298] pany; but the act of such other company was regarded as a mere trespass, and the master sued for loss of services occasionedby such trespass. The servant was injured by the train of another company (the defendant's) running into his train. It must be owned that it is not easy to see why, in jus- tice, the railway company in Alton v. Midland Railway Company were less liable because they had contracted to carry safely, than if they had not contracted. It seems, however, to follow logically enough if the distinction be- tween contracts and torts where a duty is undertaken is to be maintained. This question has received further illus- tration from two recent cases. In Fleming v. The Man- chester, Sheffield, and Lincolnshire Railway Company (o), which was an action for " not safely and securely car- rying" goods, it was held that the action was substan- tially founded in contract within the meaning of the County Court Act (p), so that the plaintiff having accepted £12 paid into court, was not entitled to costs. In Foulkes v. Metropolitan District Railway Company (q), however, the plaintiff, on alighting from one of defendants' carriages, was injured by reason of the carriage being unsuited to the platform. Grove, J., thought that " the defendants hav- ing invited or knowingly permitted the plaintiff to enter their carriage, by that alone undertook to carry him safely, and that they had also invited him by putting up a notice and by other circumstances, that they were therefore bound to keep their carriages and means of descent in a reasonable (o) Fleming v. M. S. L. By. Co., L. B. affirmed In the Conit of Appeals, 6 O. P. 4 Q. B. D. 81, 0. A.; Tatton v. G. W. By. D. 157. Bramwell, L. J., said there was a Co., 2 E. & E. 844, mnst be considered breach of " the daty which the law Im- OTermled by this case. poses npon all, viz. , to do no act to injure Ip) 30 & 31 Vict. c. 142, s. 5. another," and Baggallay and Thesiger, (g) Foalkes ».Met. Dist. By. Co., L. B. L. JJ., emphatically rest their judgment C. P. D. 267 ; 48 L. J. O. F. S5S. The de- on a breach of daty and not of contract cieion In Foulkes v. Met. By. Co. was 24 370 MORE THAN ORDINARY CAKE. and proper state of safety, and that the mere fact that the ticket was issued by the South Western Eailway Company, [299] which in the absence of anything else, might be evidence of a contract on which the jury ought to act, does not necessarily exempt the defendants from any con- tract, if a contract is needed in the case ; but, at all events, does not exempt them from the liability which they under- take when they receive a person into a carriage which is under their control." The learned judge cites the case of Marshall v, York, Newcastle and Berwick Eailway Com- pany {r), and the expression used by Jervis, C. J. : " Upon what principle does the action lie at the suit of the servant (who had taken no ticket) for his personal suffer- ing? Not by reason of any contract between him and the company, but by reason of a diity implied by law to carry him safely." Williams, J., in that case said that " an action of this sort is, in substance, not an action of con- tract, but an action of tort against the company as car- riers." In Austin v. Great Western Railway Company (s) which was a case where a woman took a ticket for her- self, but bona fide omitted to take one for her child, over age, who was injured, Cockburn, C. J., Lush and Shea, JJ., rested their judgments on th? contract being entire to carry both mother and child; but Blackburn, J., rested the case on the fact of the child being a passenger, which raised the implied duty to carry him safely. It must be owned that the cases are conflicting ; but they may possibly be ex- plained upon the ground that when the parties have entered into a contract with respect to the duty io be undertaken, they, in substance, intend to rely upon the contract and the incidental duties which the law superadds; but if the parties have not entered ihto any agreement upon the matter, their original duties remain unvaried, and a breach of such duties is a tort. But if this be so, it seems that great injustice (r) Supra. («) Austin v. Great Western By. Co., li. R. 2 Q. B. 142; 86 L. J. Q. B. 201. RAILWAY COMPANIES — CONTEACT. 371 may be done. Practically, a passenger is bound to take a ticket, that is to make a contract. If, therefore, he is in- £300] jured, but not beyond £20, he cannot recover costs, notwithstanding he brings his action in " tort," for in sub- stance it is " contract," whereas if he did not take a ticket (ftowa^de without fraud), he might recover damages and costs. The payment of any money by the plaintiff to the defend- ant is not an essential part of the contract to carry, out of which the duty arises {t). A railway passenger may agree to travel at his own risk, and so exclude the question of negligence (u). In actions by passengers for injuries sustained in a collis- ion, the question has frequently been raised whether the defendants are liable in consequence of the person's proxi- mately causing the injury not being their servants or under their control. These questions arise where another com- pany has running powers over the defendant's line, or the defendants have running powers over theirs (x). (0 Marahall o.T. & Newcastle Ey. N. W. By. Co., L. E. 9 C. P. 325; but Co., H C. B. 655; G. N. Ey. Co. v. Harrl- where goods were sent at a lower rate, «on, 10 Ezch. 376 (newspaper reporter and there was an exception as to " wUl- traveling free). Anstlnr. G. W. By. Co., tal mlscondact," It was held that the li. B. 2 Q. B. U2; 36 L. J. Q. B. 201 (child goods were at the owner's risk, Lewis v. traveUng free) ; [post, pp. 387, 388]. 6. W. By. Co., 3 Q. B. D. 195. See ante; (u) Macanlay v. Fnmess By. Co., 42 L. ^ost, pp. 3S7, 388]. J. Q. B. 4 ; L. E. 8 Q. B. 57. But the same (x) Wright v. Midland By. Co., L. B. 8 does not hold as to goods ; D'Arc v.li. & Bx, 137 ; 42 L. J. Ex. 89. (x) One company allowing another the use of its road cannot absolve Itself from the negligent acts of the latter causing injuries. — Abbott v. Johnstown, etc., B. Co., 80 N. Y. 27; Illinois Central B. Co. v. Barron, 5 Wall. 90; Terre Haute & I. B. Co. «. Chicago, etc., By. Co., 150111. 502; 37 N. E. Bep. 916; Durfee v. Johnstown, etc., B. Co., 71 Hun, 279; 23N.Y.Bep. 1016; Cogswells. West St., etc., By., 5 Wash. St. 46;31Pac. Bep. 411 ; Georgia B. & B. Co. v. Ellison, 87 Ga. 691 ; 13 S. E. Bep. 809; Pennsylvania Co. v. Ellett, 132 111. 654; 24 N. E. Bep. 559; Palmer i;. Utah & N. By. Co., 2 Idaho, 350; 16 Pac. Bep. 553. And in the absence of legislative authority a company cannot by con- tract or lease relieve itself from liability for the torts of the lessee. — Nelson v. Vermont, etc., B. Co., 26 Vt. 117; Alexandria, etc., B. Co. v. 372 MOKE THAN OKDINABY CABB. A railway company may be negligent either in respect of its duties as owner of the line, or of the carriage, or of both. Brown, 17 Wall. 445; Ohio, etc., B. Co. v. Dunbar, 20 111. 623; Bouknight V. Charlotte, C. ^ A. E. Go. , 41 S. C. 41 5 ; 19 S. B-. Eep. 915 ; Central E. .& B. Co. V, Passmore, 90 Ga. 203; 15 S. B. Eep. 760; Lakin v. Willamette Val. &C. E. Co., 13 Ore. 436,; 11 Pac. Eep. 68; Eicketts v. Chesapeake & O. Ey. Co., 33 W.' Va. 433; 10 S. B. Eep. 801; Harmon v. Columbia & G. E. Co., 28 S. C. 401; 5 S. B. Eep. 835; International & G. N. E. Co. v. Moody, 71 Tex. 614; 9 S. W. Eep. 465; International & G. N. E. Co. v. Underwood, 67 Tex. 689; 4 S. W. Eep. 216; Nagle o. Alexandria & B. Ey. Co., 83 Va. 707; 3 S. E. Sep. 369; Arrowsmith v. Nashville & D. E. Co., 57 Bed. Eep. 165; Hart v. Charlotte, etc., E. Co., 33 S. C. 427; 12 S. £. Eep.9. But remains liable for the negligence of the lessee as though it oper- ated the road Itself. — Daniels v. Hart, 118 Mass. 543; Macon, etc., E. Co. V. Mayes, 49 Ga. 355. When the lessor company is authorized by statute to lease the road, the lessee alone becomes liable for its own negligent acts (Maboney'v. Atlantic, etc., E. Co., 63 Me. 68; Wasmer v. Delaware, etc., E. Co., 80 N. Y. 312; Philadelphia, etc., E. Co.». Anderson, 94 Pa. St. 351; Arrow, smith V. Nashville & D. E. Co., 57 Fed. Eep. 165; Berry v. Kansas City, etc., E. Co., 52 Kan. 759; 34 Pac. Eep. 805; Phillips o. Northern E. of N. J., 62 Hun, 233; 16 N. T. S. Rep. 909; Virginia M. Ey. So. v. Wash- ington, 86 Va. 629; 10 S. B. Eep. 927), unless the lessor continues to operate the road (Alexandria, etc., E. Co. v. Brown, 17 Wall. 445), or allows it to be operated in its corporate name (Bower v. Eailroad Co., 42 la. 546) , or unless the lease fails to expressly exempt the lessor from liability.— Nugent v. Boston, C. & M. E. Corp., 80 Me. 62; 12 Atl. Eep. 797. Statutes regulating the duties and obligations of lessor and lessee companies prevail in some States. In some States if cattle are killed by the omission of the duty to fence the road, the lessor and lessee are both liable. — Clement v. Canfleld, 28 Vt. 302; Wyman v. Penobscot, etc., E. Co., 46 Me. 162; McGrath v. New Yoirk Sentral, etc., E. Co., 63 N. Y, 522 ; Oregon Ey. & Nav. Co. v. Dacres, 1 Wash. St. 525; 23 Pac. Eep. 415. In others the company which caused the injury is alone liable.— Stev- ens V, Davenport, etc., E. Co., 36 la. 827. The company owning the road is not liable for the negligence of mort- gagees operating it (State v. Consolidated European, etc., E. Co., 67 Me. 479; Harper v. Newport, N. & M. V. E. Co., 99 Ky. 359; 14 S. W. Eep. 346), or of receivers. — State v. Vermont Central R. Co., 30 Vt. 108. Unless it retains control of the road in whole or 'In part or allows its name to be used. — Alexandria, etc., E. Co. v. Brown, 17 Wall. 445. The trustee of mortgagees is the agent of the company. — Eio Grande E. Co. EAILWAY COMPANIES PASSENGEES. 373 or in respect of its user of them as a carrier. Where the accident arises from negligence in the defendants as owners V. Cross, 6 Tex. Civ. App. 464; 23 S. W. Rep. 629, 1004; Baxter w. New York, etc., Ey. Co. (Tex. Civ. App.), 22 S. W. Rep. 1002; Nortlieastem R. Co. V. Barnett, 89 Ga. 399 ; 16 S. B. Rep. 492. The lessee company is liable for Injuries to persons, animals or prop- erty by reason of the defective condition of the road or its equipments (Wasmer v. Delaware, etc., R. Co., 80 N. T. 312; Miller v. New York, L. &W. E.Co.,125N. Y. WS; 26N.E.Rep. 35; Fifleld o. Same, 125 N. Y. 704; 26 N. B. Rep. 752, reversing, 3 N. Y. S. Rep. 245; East Line & RedR. Co., c. Culbertson, 72 Tex. 376; 10 S. W. Rep. 706), or through mismanagement of its trains or negligence of employes (Clement v. Can- fleld, 28Vt. 302; Peoria, etc., E. Co. v. Lane, 83 111. 448), or through trespasses of servants. — Chicago, M. & N. E. Co. v. Bichman, 47 III. App. 156. , Unless the statute provides that the leissor shall be liable. — Quested -». Newburyport, etc.. Horse R. Co., 127 Mass. 204. The apparent owner and actual operator of a railroad is liable for the negligence of its officers and agents. — Jacksonrille, T. & K. W. Ry. Co. V. Peninsular L., T. & M. Co., 27 Fla. 157; 9 So. Eep. 661; Same v. Gar- rison, 30 Fla. 557; 11 So. Rep. 929; Ft. Scott, W. & W. Ry. Co. v. Fort- ney, 51 Kan. 287; 32 Pac. Rep. 904. In the case of Missouri Pac. Ry. Co. v. Dunham (68 Tex. 231 ; 4 S. W. Rep. 472), it was held that both lessor and lessee were responsible for the negligence of the lessee, for the reason that the former could not, without permission of the legislature, so transfer its franchise as to re- lease itself from liability, and that the latter was liable because in actual operation of the road. Passengers. — Carriers of passengers are not insurers ; but they are liable (or even the slightest negligence. — Meier v. Pa. R. Co., 64 Pa. St. 225; Jeffersonville, etc., R. Co, v. Hendricks, 26 Ind. 228; Carroll v. Staten Island E. Co., 58 N. Y. 126; San Antonio & A. P. Ey. Co. v. Long (Tex. Civ. App.), 26 S. W. Rep. 114; Douglas v. Sioux City St. Ry. Co. (Iowa), 68 N. W. Rep. 1070; Gulf, C. & S. F. Ey. Co. v. Brown, 4 Tex. Civ. App. 435; 23 S. W. Eep. 618; Spellman ». Lincoln Rapid Transit Co., 36 Neb. 890; 56 N. W. Rep. 270; Texas Cent. Ry. Co. V. Stewart, 1 Tex. Civ. App. 642; 29 S. W. Eep. 962; Chicago, P. & St. L. Ry. Co. V. Lewis, 145 111. 67; 33 N. E. Eep. 960; Atchison, T. & S. F. Ey. Co. V. Frier (Tex. Civ. App.), 22 S. W. Eep. 6; Sears v. Seattle Con. St. Ey. Co., 7 Wash. St. 286; 33 Pac. Eep. 389; O'Connell ■». St. Louis, C. & W. Ey. Co., 106 Mo. 482; 17 S. W. Eep. 494; Alabama G. S. E. Co. V. Hill, 93 Ala. 614; 9 So. Eep. 722: Smith v. Chicago & A. R. Co., 108 Mo. 243; 18 S. W. Rep; 971; Montgomery & E. Ey. Co, u. Wallette, 92 Ala. 209; 9 So. Eep. 363; Furnish «. Missomri Pac. Ey. Co., 102 Mo. 438; 13 S. "W. Eep. 1044; Gallagher v. Bowie, 66 Tex. 266. 374 MOIIB THAN ORDINARY CAEE. of the line or carriage, there is not much difficulty; but where the injury arises from negligence in the defendants But carriers are not required to exercise " the greatest possible care."— International & G. N. R. Co. v. Welsh (Tex. Civ. App.), 24 S. W.'Kep.854; Gult, C. & S. F. Ey. Co.». Hlgby (^Tex.Civ. App.), 26 S.W. Rep. 732; Gilbert v. West End St. Ry. Co., 160 Mass. 403; 36 N. E. Rep. 60; International & G. N. R. Co. ». Welch, 86 Tex. 203; 24 S. W. Rep. 390; Fordyce v. Withers, 1 Tex. Civ. App. 640; 20 S. W. Rep. 766; Daugherty v. Missouri R. Co., 97 Mo. 647; 11 S. W. Eep. 251; Gulf, C^ & S. F. Ry. Co. V. Stricklin CTex. Civ. App.), 27 S. W. Rep. 1093. They are bound to exercise the highest degree of care and vigilance to- secure the safety of their passengers in the construction and repair of their vehicles and road. — Philadelphia, etc., R. Co. ». Boyer, 97 Pa. St. 91; Carroll D. Staten Island R. Co., 58 N. Y. 126; Taylor o. Grand Trunk Ry. Co., 48 N. H. 304; Simmons v. New Bedford, etc., R. Co., 97 Mass. . 368; Pennsylvania R. Co. u, Roy, 102 U. S.^1; Lemmon ». Chanslor, 68 Mo. 340,; Baltimore, etc., R. Co. v. Wightman, 69 Gratt. 431; Louis- ville, N. A. & Co. Ry. Co. o. Miller (Ind.), 37 N. E. Rep. 343; Gal- veston, H. & S. A. Ry. Co. v. Waldo (Tex. Civ. App.^, 26 S. W. Rep. 1004; Chicago, P. & St. L. Ry.Co. ■». Lewis, 145111. 67; 33 N. E. Rep. 960; Daub ». Yonkers E. Co., 69 Hun, 138; 23 N. Y. S. Rep. 268; Taylor »,Penn8ylyaniaCo.,50Fed. Rep. 755; Levyu. Campbell (Texas), 19 S, W.. Rep. 438; Birmingham v. Rochester City & B. R. Co., 63 Hun, 635; 18 N. Y. S. Rep. 649; Texas & P. Ry. Co. v. Hamilton, 66 Tex. 92; 17 S. W. Rep. 406; Watson?). St.Paul City Ry.Co.j 42 Minn. 46; 43N. W.Rep.904. They are not liable, however, for latent detects in their appliances- which could not have been discovered by the best usual known tests. — Hegeman li. Western R. Corp., 13 N. Y. 49 ; Peoriaj etc., R.Co. v. Thomp- son, 66 111.138; Wood on Railways, p. 1227; Thomp. Carriers of Passen- gers, 2Cp; McPadden v. New York, etc., R. Co., 40 N. T. 478; Robinson V. N. Y. Central R. Co., 9 Fed. Rep. 877; Warren v. Fitchburg R. Co., 8- Allen, 227; Fordyce v. Withers, 1 Tex. Civ. App. 540; 20 S. W. Rep. 766; Tex. & P. Ry. Co. v. Buckalew, 3 Tex. Civ. App. 272; 22 S. W. Rep. 994 ^ Irelson v. Southern Pac. Ry. Co. (La.), 7 So. Rep. 800. "Railway passenger carriers," say the court, in Meier O.Pennsylvania. R. Co. (64 Pa. St. 226), " are bound to use all reasonable precantions- against, injury to passengers; and these precautions. are to be measured by those in known use in the same business which have been proved by experience to be e£9cacious. The company are bound to use the best precautions known to practical use." They are, therefore, not relieved of liability by alleging that they pur- chased their appliances from manufacturers of good reputation. — Carroll V. Staten Island R. Co., 68 N. Y. 126; Hegeman v. Western E. Corp., 13- N. Y. 9; Wood on Railways (1894), p. 1227; Louisville, N. A. & C. Ry- Co. V. Snider, 117 Ind. 436; 20 N. E. Rep. 284. RAILWAY COMPANIES PASSENGERS. 375 in respect of their duty as carriers, the question becomes one of considerable difficulty ; for- as catriers they may The duty of the company in the exercise of that degree of care which the law imposes upon them extends not only to the furnishing of proper and suitable vehicles for transportation, but to the construction and repair of its road. They must provide against usual storms or freshets and in one case it was held that they must provide against extraordinary freshets when the injury could have been avoided by the construction of proper culverts. — Philadelphia, etc., B. Co. v. Ande£Son, 94 Pa. St. 351. But they are not liable for injuries resulting from unforeseen causes, as the breaking of a rail by an extreme frost (McPadden v. JSew York Cent. E. Co., 44 N. Y. 478; Canadian Pac. By. Co. v. Chalifaux, 22 Can. S. C. B. 721; or the misplacement of a switch by a third person without their fault.— Frink v. Potter, 17 111. 406. While the carrier must exercise the highest degree of care for the safety of the passenger; the passenger is not relieved of the duty of exercising ordinary care himself and if by falling to exercise such care he is Injured he cannot recover. Boarding Moving Train. — It has accordingly been held that when a passenger voluntarily placjes himself in a dangerous position as in board- ing a moving train and is injured he will be guilty of such contributory negligence as will bar a recovery. — Harper ». Brie By. Co., 32. N. J. L. 88; Keating v. New York Cent. E. Co., 3 Lans. 469; Chicago, etc., B. Co. v. Scates, 90 111. 586; Vicksburg, etc., R. Co. v. Hart, 61 Miss., 468; Knight V. Pontchartrain B. Co., 23 La. An. 462; Hays v. Wabash By. Co., 51 Mo. App. 438; Chicago, B. I. & P. By. Co. ii. KoehleV, 41 111. App. 147; Car- roll o. Interstate E. T. Co.,, 107 Mo. 653; 17 S. W. Eep. 889; French i>. Detroit, etc., By. Co., 89 Mich. 537; 50 N. W. Eep. 914; Hunter v. Coop- ertown & S. V. B. Co., 126 N. Y. 18; 26 IS,. B. Eep. 958; Spannagle v. Chicago & A. E. Co., 31 111. App. 460; Bacon v. Delaware, etc., E. Co. (Pa.), 21 Atl. Eep. 1002; 28 W. N. C. 233; McMurtry v. Louisville, etc.. By. Co., 69 Mass. 601; 7 So. Eep. 401; Hanrahan v. Manhattan By. Co., 53 Hnn, 42Q; 6 N. Y. S. Eep. 395; Missouri Pac. E. Co. v. Texas & Pao. B. Co., 36 Fed. Eep. 379; Eichmond & D. E. Co. v. Fickleseimer, 85 Va. 798; 10 S B. Eep. 44. But this may be a question of fact for the jury, whether the pas- senger was negligent or not.— Chicago, etc., E. Co. v. Eandolph, 53 111. 513; Johnson v. Westchester E. Co., 70 Pa. St. 367; IllinoiB, etc. E. Co., V. Abel, 59 111. 131; Swigert v. Hannibal, etc., E. Co., 75 Mo. 475; Texas, etc., E. Co. V. Murphy, 46 Tex. 356; 'Jackson v. St. Louis, etc., By. Co., 29 Mo. App. 495; Baltimore & 0. E. Co. v. Kane, 69 Md. 11; 13 Atl. Eep. 387. As where the train was moving sloWly and did not stop at the sta- tion.— Chicago, etc., E. Co. V. Eandolph, 63 III. 513; Fulks v. St. Louis & S. F. By. Co., Ill Mo. 335; 19 S. W. Eep; 818. 376 MORE THAN ORDINABY CARE. I be using the line or the carriage of another company, and they have undertaken a duty towards the plaintiff by con- Or the passenger was directed by the servants of the company to make the attempt. — Detroit, etc., B. Co. v. Curtis, 23 Wis. 152. See Distler v. Long Island K. Co., 78 Hun, 252; 28 ST. T. S. Rep. 86S; Hunter V. Coopertpwn & S. V. R. Co., 112 N. Y. 371; 19 N. E. Rep. 820; Kansas & G. S. L. B. Co. ■». Dorongh, 72 Tex. 108; 10 S. W. Rep. 711. Whether the train stopped long enough for passengers to get on may afiect the question. — Swlgert v. Hannibal, etc., R. Co., 75 Mo. 475. The same general rule applies to street cars (Baltimore Traction Co. V. State, 78 Md, 409; 28 Atl. Rep. 397; Woo Dan v. Seattle E. Ry. & P. Co., 5 Wash. St. 466; 32 Pac. Rep. 103 ; Morrison v. Broadway & S. A. R. Co., 130 N. Y. 166; 29 N. E. Rep. 105; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; 51 N. W. Eep. Ill; Chicago City By. Co. v. Delcourt, 33 111. App. 430; Corlin v. West End St. Ry. Co., 154 Mass. 197; 27 N. E. Eep. 1000; Central Ry. Co. v. Smith, 74 Md. 212; 21 Atl. Rep. 706; Red- dington v. Philadelphia Traction Co., 132 Pa. St. 174; 19 Atl. Rep. 28; Briggs V. Union St, Ry. Co., 148 Mass. 72; 19 N. E. Rep. 19); bat not with such rigor as to railway trains. — Citizens St. Ry. Co. v. Spahr, 7 Ind. App. 23; 33 N. E. Rep. 446. See Central Pass. Ry. Co. v. Rose (Kentucky), 22 S. W. Rep. 745; White v. Atlantic Con. St. R. Co., 92 Ga. 494; 17 S. E. Rep. 672; Murphy v. St, Louis, etc., E. Co., 43 Mo_ App. 342; Schacherl v. St. Paul City Ey. Co., 42 Minn. 42; 43 N. W. Kep 837; Valentine v. Broadway & S. A. E. Co., 14 Daly, 540; 4 N. Y. S. Eep.' 481; Stager v. Ridge-Ave. Pass. Ry. Co., 119 Pa. St. 70; 12 Atl. Eep. 821. Standing on the Platform of a Car — Is such negligence as will defeat an action by the passenger for injuries received in consequence (Alabama, etc., R. Co. v. Hawk, 72 Ala. 112; Quinn v. Illinois Cent. R, Co., 51 111. 495; Camden, etc., R. Co. v. Hoosey, 99 Pa. St. 492; Hickey II. Boston, etc., R. Co., 14 Allen, 429; McAunich v. Mississippi, etc., R. Co., 20 la. 338; Taylor v. Danville, etc., R. Co., 10 Brad. (111.) 311 ; Smoth- trman v, St. Louis, etc., Ey. Co., 29 Mo. App, 265; Torrey v. Boston & A. E. Co., 147 Mass. 412; 18 N. E. Rep. 213), though there are no vacant seats inside, but sufficient standing room. — Quinn v. Illinois, etc., E. Co., 51 111. 495; Camden, etc., R. Co. v. Hoosey, 99 Pa. St. 492; Aikin V. Prankford, etc., R. Co., 142 Pa. St. 47; 21 Atl. Eep. 781. Uontra, Willis V. Long Island R. Co., 34 N. Y. 670. In another Nevy York case It was held that the fact that a passenger failed to find a seat and having none pointed out to him by any employe took a position on the platform of the car where other passengers were riding without objection from any employe and was thrown from the car by a sudden lurch caused by turning a curve, did not establish contributory negligence. — Werle v. Long Island E. Co., 98 N. Y. 650. But standing on the front platform of a street car is not negligence RAILWAY COMPANIES PASSENGERS. 377 tracting to carry him, to see that he ia carried carefully as regards the other company as well as themselves. On the per se though there is room inside. — Magulre v. Middlesex E. Co., 115 Mass. 339; Burns o. Bellefontaine B. Co., 50 Mo. 139; Nolan v. Brook- lyn, etc., B. Co., 87 N. T. 63; Sutherland v. Sutherland L. & A. I. Co., 87 la. 505; 54 N. W. Bep. 463; Matz v. St. Paul City By. Co., 52 Minn. 169; 53 N. W. Bep. 1071; Muldoon ». Seattle City By. Go., 7 Wash. 628; 35 Pac. Bep. 422; Archer v. Ft. Wayne & E. By. Co., 87 Mich. 101; 49 N. W. Bep. 488 ; Upham v. Detroit City By. Co., 85 Mich. 12 ; 48 N. W. Bep. 199; Hourne^ v. Brooklyn City B. Co., 7 N. Y. S. Bep. 602; Marion St. B. Co. V. Shaffer, 9 Ind. App. 486; 86 N. E. Bep. 861. Contra, Andrews V. Capitol, etc., B. Co., 2 Mackey, 137. It is not negligence per se to ride on the steps of the front platform of a crowded street car (Bruno v. Brooklyn City E. Co., 25 N. Y. S. Bep. 607; 6 Misc. Rep. 327; Pray v. Omaha Street, By. Co., (Nebraska), 62 N. W. Bep. 447; Elliott o. Newport St. By. Co. (B. I.), 28 Atl. Bep. 338; but see Francisco v. Troy&L.B. Co., 78 Hun, 13; 29 N. Y. S. Bep. 247; Willmott v. Corrigan Con. St. By. Co., 106 Mo. 635; 16 S. W. Bep. 500), with the assent of the conductor or driver. — The German Passenger By. Co. V. Walling, 97 Pa. St. 55; 37 Am. Bep. 711; Seymour v. Citizens Ry. Co., 114 Mo. 266; 21 S. W. Bep. 739.— Or on the footboard, Cogswell V. West St., etc., By. Co., 5 Wash. St. 46; 31 Pac. Rep. 411; Topeka CityRy. Co. v. Higgs, 38 Kan. 375; 16 Pac. Bep. 667; City By. Co.». Lee, 50 N. J. L. 435; 14 Atl. Bep. 883. One riding on the rear platform of a crowded car, and struck by the pole of the following car was held not guilty of contributory negligebce although the accident could not have happened had he not been in that position.— 13th & 14th Pass. B. Co. v. Boudron, 92 Pa. St. 476; 37 Am. Bep. 707. A passenger went to the front platform of a car to smoke. The driver told him to go to the rear platform. He started to do so, but as he was getting down, the driver let go the brake. The car started and he was injured. It was held that these facts did not make out a cause of action. — Brown v, Chicago, etc., B. Co., 49 Mich. 153. Where one was injured by falling from the front platform of a car while in motion upon which he occupied a sitting position against the rules of the company, the warning of the driver and without reasonable excuse, he was held not entitled to recover. — Willis v. Lynn, etc., E. Co , 129 Mass. 351. If a passenger sit on the driving bar of a street car even at the driver's invitation, if there is room inside, and ^s Injured, he cannot recover. — Donney v. Hendrle, 46 Mich. 498. There are cases in which it is held not negligence in itself for a passenger to stand upon the platform of a railroad car. — Zemp v. Wil- mington, etc., E. 6o., 9 Eich. 84; Edgerton v. N. Y., etc., B. Co., 35 378 MORE THAN OHDINAKY CAKE. other hand, they cannot be expected to be answerable for the negligence of the other company over whose line, car- Barb. 389; Willis V. Long Island, etc., B. Co., 34 N. Y. 670; Inter- national & G. N. E. Co. V. Welsh (Tex. Civ. App.), 24 S. W. Rep. 854; Bonner ». Glenn, 79 Tex. 631 ; 16 S. W. Eep. 572 ; Kansas & A. V. Ey. Co. V. White, 67 Fed. Eep. 481 ; 3 Am. Lawyer, 376, 377. When the train is moving slowly. — Goodrich v, Penn., etc., E. Co., 29 Hun, 50. Or to pass from one platform to another. — Louisville, etc., E. Co. v. Kelly, 92 Ind. 371 ; Cleveland, etc., E. Co. o. Hanson, 30 Ohio St. 451 ; Ft. Clark St. E. B. v. Ebaugh, 49 111. App. 682. When acting under the suggestion of the conductor (Id.), but not when it is done against bis advice. — Ohio, etc., B. Co. v. Schiebe, 44 111. 460. Projecting Arm fi'oin Car Window. — It is also negligence for a passenger to project his arm from a car window. — Todd v. Old Colony, etc., E. Co., 3 Allen, 18; Pittsburgh, etc., E. Co, v. Andrews, 39 Md. 329; Louisville, etc., E. Co. v. Sickings, 6 Bush, 1; Dun v. Seabord, etc., B. Co., 78 Va. 645; Holbrook v. Utica, etc., B. Co., 12 N. Y. 236; Pitts- burgh, etc., B. Co. V. McClurg, 66 Pa. St. 294 (overruling Laing v- Colder, 8 Fa. St. 479) ; Indianapolis, etc., B. Co. v. Eutherford, 29 Ind 82; Bichmond & D. E. Co. v. Scott, 88 Va. 958; 14 S. E. Eep. 763; Cur- rico V. West Va. C. & P. By. Co., 36 W. Va. 389; 14 S. E. Eep. 12; But- ler V. Pittsburgh & B. St. By. Co., 139 Pa. St. 196; 21 Atl. Eep. 600; Georgia Pac. Ey. Co. v. Underwood, 90 Ala. 49; 8 So. Eep. 116; Favre V.' Louisville & N. E. Co., 91 Ky. 541; 16 S. W. Eep. 370. This has been held a question of fact for the jury by some courts. — New Orleans & C. B. Co. v. Schneider, 60 Fed. Bep. 210; 8 Q. C. A. 671; Quinn v. South Carolina Ey. Co., 29 S. C. 381; 7 S. E. Rep. 614; Dahl- berg V. Minneapolis St. Ey. Co., 32 Minn. 404; Barton v. St. Louis, etc., E. Co., 52 Mo. 263; Chicago, etc., B. Co. v. Pondrom, 51 111. 333; Ger- mantown Pass. Ey. Co. v. Brophy, 105 Pa. St. 38. (In this case the passenger was resting his arm on the sill within the car window, and it was thrown out and injured by a jolt.) — Spencer v, Milwaukee, etc., E. Co., 17 Wis. 487; Farlow v. Kelly, 108 U. S. 288. (Similar to Germ. Pass. By. Co. v. Brophy, supra.) And in some cases the company is held responsible for injuries of this kind unless 'it places bars in its windows to prevent passengers from thrusting out their arms.— Spencer v. Milwaukee, etc., R. Co., 17 Wis. 487; New Jersey R. Co. v. Kennard, 21 Pa. St. 203; Chicago, etc., R. Co. V, Pondrom, 51 111. 333. But this is not now the law (Dun v. Sea- bord, etc., R. Co., 78 Va. 646; Railroad Co. v. Rutherford, S. C. Ind., 7 Am. Law Beg. (n. s.) 476; Missimer v. Bailioad Co., Phil. Com. Pleas, 42 Leg. Intel. 406). See ante, p. 62. Alighting from Trains. — It is the duty of a railroad company to stop RAILWAY COMPANIES PASSENGERS. 379 [301] riages and servants, they have, perhaps, no control. It seems that their duty really is to do their best to be careful at a station to enable passengers to alight in safety. But a passenger is not justified in alighting from a train while it is in motion. Such con- duct is negligence per se (Strains' v. Kansas, etc., E. Co., 75 Mo. 185; Damont v. N. O., etc., R. Co., 9 La. Ann. 441 ; Penn. E. Co. v. AspeH, 2a Pa. St. 147; JefEersonville, etc., E. Co. v. Hendricks, 26 Ind. 258; Kelly V. Hannibal, etc., E. Co., 70 Mo. 604. See Brown v. Barnes, 151 Pa. St. 562; 25 AU. Bep. 144; 31 W. N. C. 179; Hughlett ». Louisville & N. E. Co. (Kentucky), 22 S. W. Eep. 551; Louisville & N. R. Co. v. Johnson, 44 111. App. 56; Brown v. Chicago, etc., R. Co., 80 Wis. 162; 49 N. W. Rep. 807; Kilpatrick O.Pennsylvania E. Co., 140 Pa. St. 502; 21 Atl. Eep. 408; 27 W. N. C. 484 ; Cincinnati, I., St. L. & C. R. Co. v. Dufraln, 36 111. App. 352; Little Eock & Ft. S. Ey. Co. v. Tankersly, 54 Ark. 25; 14 S. W. Eep. 1099; McLaren v. Atlanta & W. P. R. Co., 85 Ga. 604; 11 S. E. Eep. 840; Walkerw.Vicksbnrg, S. &P. E.Co.,41La. Ann.765; 6 So. Eep. 916; Whelan v. Georgia, etc., E. Co., 84 Ga. 606; 10 S. E. Rep. 1091; Jarrett V. Atlanta v. W. P. E. Co., 83 Ga. 347; 9 S. B. Rep. 681; Savannah, F. & W. R. Co. V. Watts, 82 Ga. 229; 9 S. E. Rep. 129; Watson t>. Georgia Pac. Ry. Co., 81 Ga. 476; 7 S. E. Eep. 854; Dwyer v. New York, etc^, Ey. Co., 48 N. J. L. 373; 7 Atl. Eep. 417; see also, ante, p. 53), although the train does not stop at the station the passenger is destined tor, and though he takes that course to save others distress on account of his absence. — Lake Shone, etc., Ry. Co. v. Bangs, 47 Mich. 470. See Atlanta & W. P. R. Co. V. Dickinson, 89 Ga. 455; 15 S. E. Rep. 534. On the other hand it is held not negligence per se for a passenger to jump from a moving train.— Lloyd v. Hannibal, etc., E. Co., 53 Mo. 509; Brooks V. Boston, etc., E. Co., 135 Mass. 21; Penn. R. Co. ». Kilgore, 32 Pa. St. 292; Galveston, etc., R. Co. v. Smith, 59 Tex. 406; Little Eock & Ft. S. Ey. Co. V. Atkins, 46 Ark. 423; Duncan v. Wyatt Park Ey. Co., 48 Mo. App. 659; Eichmond v. Quincy, etc., Ey. Co., 49 Mo. App. 104; Louisville & N. R. Co. v. Crunk, 119 Ind. 542; 21 N. E. Rep. 31. See ante, p. 53. When it stops for a moment, ori moves so slowly as to be almost im- perceptible. — Clotworthy v. The Hannibal, etc., R. Co., 80 Mo. 220. When the passenger does it to avoid being carried past his destina" tion. — Central, etc., R. Co. v. Letcher, 69 Ala. 106; Damont v. New Or- leans, etc., R. Co., 9 La. Ann. 414; Jewell v, Chicago, etc., R. Co., 5i Wis. 610; Smith, etc., R. E. Co. v. Singleton, 66 Ga. 252; Dougherty v. Chicago, etc., E. Co., 86 111. 467; Houston, etc., E. Co. v. Leslie, 57 Tex. 83; Richmond, etc., R. Co. v. Morris, 31 Gratt. 200; Cumberland, etc., R. Co. V. Maugans, 61 Md. 53; Lambeth v. North, etc., R. Co., 66 N. C. 494; Mitchell V. Chicago, etc., R. Co., 51 Mich. 236; Carr v. Eel River & E. E. Co., 98 CaJ. 366; 33 Pac. Rep. 213. Especially when the act is done under the suggestions or instructions 380 MORE THAN ORDINARY CARE. [302] as regards themselves and as regards the other company, but that they are not answerable for the negli- of the company's servants. — Lambeth v. North, etc., R. Co., 66 N. C. 499 ; St. Louis, etc., R. Co. v. Cantrell, 37 Ark. 519 ; Filer v. New York, etc., R. Co., 49 N. Y. 47; I. & G. N. Ry. Co. v, Hassell, 62 Tex. 256; Bucher v. New York Cent., etc., R. Co., 98 N. Y. I28;'McCa8lin v. Lake Shore & M. S. Ry. Co., 93 Mich. 653; 63 N. W. Rep. 724; Texas & N. O. Ey. Co.v. Bingham, 2 Tex. Civ. App. 278; 21 S. W. Rep. 561; Galloway V. Chicago, etc., Ry. Co., 87 la. 458; 64 N. W. Rep. 447; Eddy v. Wallace, 49 Fed. Rep. 801; Reary v. Louisville, etc., By. Co., 40 La. Ann. 32; 3 So. Rep. 390; Cincinnati, H. & I. R. Co. v. Carper, 112 Ind. 26; 13 N. E. Rep>. 122; 14 N. B. Rep. 352; St. Louis, I. M. & S. Ry. Co. ■». Person, 49 Ark. 182; 4 S. W. Rep. 755; Burgin v. Richmond & D. R. Co., 116 N. C. 673; 20 S. B. Rep. 473. Or done to avoid impending danger. — Iron Ry. Co. v. Mowrey, 36 Ohio St. 418; Wilson v. Northern Pacific R. Co., 26 Minn. 278. Such questions are usually for the ,jury to determine. — Kentucky & I. Bridge Co. v. McKinney, 9 Ind. App. 213; 36 N. B. Rep. 448; Onder- donk». New York & S. B. Ry. Co., 74 Hun, 42; 26 N. Y. S. Rep. 310; Jones V. Chicago, etc., R. Co., 42 Minn. 183; 43 N. W. Rep. 114; New York, S. E. & W. R,Co. ■». Buches, 127 Pa. St. 316; 17 Atl. Rep. 901; 24 W. N. C. 261; Louisville, N. A. & C. Ry. Co. v. Holsapple (Ind. App.), 38 N. E. Rep. 1107; Raben v. Central la. Ry. Co., 73 la. 579; 34 N. W. Rep. 621; Baltimore & O. R. Co. v. Meyers, 62 Fed. Rep. 367. In Cumberland v. Mangans, supra, a young man with a valise in his right hand and a basket of provisions on his left arm, attempted in broad daylight to leave the train while it was moving slowly, the dis- tance from the lower step of the car to the platform being only eighteen inches, and in doing so was injured. It was held that he was not neces- sarily negligent. In St. Louis, etc., R. Co. ». Cantrell, supra, the conductor of atrain went to plaintiff passenger, shook him and told him that was his station, to hurry up and get off. It was about ten o'clock at night, plaintiff stepped out on the platform of the car, and in attempting to step on the platform of the depot, fell forward and was injured, the train having overshot the platform, which was seven feet above the ground. The plaintiff was held not guilty of contributory negligence. (It has been held that a railroad company is not bound to wake a drowsy (Nunn v. The Georgia R. Co., 71 Ga. 710), or sick passen- ger. — Sevier v. Vlcksburg, etc., R. Co., 61 Miss. 8.) But where a railroad train did not stop at a station a reasonable length of time to allow passengers to alight, and a passengei; undertook in spite of warnings to get oft after the train had started, and was injured, it was held that she was guilty of contributory negligence. — Jewell ». Chicago, etc.; Ry. Co., 64 Wis. 610- 41 Am. Rep. 63 KAILWAT COMFAKIES PASSENGEBS. 381 gent acts of [303] the other company against which they could not guard, any more than they are for the negli- And 'Where oue Incambered with hand bag in a dark night, stepped from a train moving from sis to eight miles an honr before it reached the platform, and against the advice of the condnctor, it was held that he could not recover for Injuries received. — South, etc., B. Co, v. Schaufler, 76 Ala. 136. And where the train stops at a place other than a station, as on approaching the crossing of another railroad, or at a water tank (Mitchell c. 'Chicago, etc., E. Co., 61 Mich. 236; Illinois, elc, R. Co. V. Green, 81 111. 19), the passenger will be guilty of negligence in alight- ing. But if he is advised by the company's servant to alight and, acting under this advice, is injured, he may recover. — Memphis, etc., B. Co. v. Whitfield, a Miss. 466; Wood v. Lake Shore, etc., B. Co., 49 Mich. 370; Brown o. Chicago, etc., B. Co., 64 Wis. 342. The passenger is not justified in alighting at the calling out of the station when the train is moving (Pabst v. Baltimore, etc., R. Co., 2 MacArthur, 42) ; that is only an intimation that the train will stop at the next station, but he may infer that it is an invitation to alight when the train has come to a stop. — Milliman v. N. Y., etc., B. Co., 66 N. Y. 642. A train approached a crossing and stopped as required by law. The name of the station had just been called and a woman passenger hurried to the door to alight. The train was not at the proper point for landing passengers, and as she climbed down It started to go to the depot. She fell and was inj ured. It was held the company was not liable. — Mitchell V. Chicago, etc., E. Co., 51 Mich. 286. And where a passenger left the cars after the conductor had called out the name of the station, and the train had passed the station, and had almost stopped, and while crossing to the station he was killed by a locomotive which he might have seen, had he looked, it was held that no recovery could be had, the court saying, " by leaving the train while in motion he ceased to be a passenger and to have the rights of a passen- ger as completely, though the train was moving slowly and was near the station, as if he bad left it while moving at full speed between stations." — Commonwealth v. Boston, etc., E. Co., 129 Mass. 600. Bidiuf in Baggage Car, on Engine, etc. — A passenger riding in a baggage car in violation of the known rules of the company cannot recover for Injuries received in consequence of such violation. — Penn- sylvania B. Co. t>. Langdon, 92 Pa. St. 21; 37 Am. Eep. 651; Houston, etc., E. Co. V. Clemmons, 55 Tex. 88; Hickey v. Boston, etc., E. Co., 14 Allen, 429 ; Kentucky Central E. Co. v. Thomas, 79 Ky. 160. It has been held not negligence for a passenger to ride in the baggage car by permission of the condnctor. — O'Donnell v. Allegheny, etc., E. Co., 50 Pa. St. 490; Carroll v. N. Y., etc., E. Co., 1 Duer, 571; Jacobs v. 382 MOKE THAN ORDINARY CARE. gent acts of [304] strangers (3^). The plaintiff traveled with a ticket issued by the London, Chatham and Dover o (y) Blake v. Gt. W. By. Po., 7 H. & N. train of anotlieT compaBj) ; Birkett ». 987 ; 31 L. J. Ex. 816 (locomotive engine Whitehaven Jnnctlon Ey. Co., 4 H. &TS. left on line by other company) ; Thomas 730; 38 L. J. Ex. 348 (defect in switch In V. Ebymney Ky. Co., L. R. 6 Q. B. 266; Maryport Ey.) ; Bnxton v. N. E. Ey . Co., 40 L. J. Q. B. 89 (train in the way of de- L. E. 3 Q. 549; 37 L. J. Q. B. 258 (cattle fendants' train on the line) ; Wright v. on line of another company) ; ronlkesu. Midland Ey. Co., 42 L. J. Ex. 89 ; L. E. 8 Met. Ey. Co., supra. ^ Ex. 138 (train of Midland rnn into by St. Paul, etc., R. Co., 20 Minn. 125; New York, L. B. &W. R. Co. ■». Ball, 66 N. J. L. 283; 21 Atl. Bep. 1052 j Jones o. Chicago, etc., Ey. Co., 43 Minn. 279; 46 N. W. Bep. 444. The better rule is that the permission of the conductor is no excuse. — Pennsylvania B. Co. v. Langdon, 92 Pa. St. 21 ; Hickey v. Boston, etc., K. Co., 14 Allen, 429; Houston, etc., E. Co. v. Clemmons, 56 Tex. 88. So as to riding in express car. — Florida Southern Ey. Co. v. Hirst, 30 Fla. 1 ; 11 So . Eep. 506. " We are unable to see how a conductor," said the court in Penn- sylvania B. Co. e. Langdon, supra, "in violation of a known rule of the company can license a man to occupy a place of danger so as to make the company responsible." (In Webster v. Eoine, etc., E. Co., 40 Hun, 161, the question of contributory negligence was held " properly left to the jury.") So too a passenger riding on a locomotive in violation of the knovra rules of the company cannot recover for injuries sp received. — Eotaert- son V. N. Y., etc., B. Co., 22 Barb. 91. Though with the consent of the one in charge of the train. — Eailroad Co, V. Jones, 95 TJ. S. 439; Texas & P. Ey. Co. v. Boyd, 6 Tex. Civ. App. 205; 24 S. W. Eep. 1086; McGucken v. Western N. Y. & P. E. Co., 77 Hun, 69; 28 N. Y. S. Eep. 298. But where a negro, without the knowledge of the conductor, was per- mitted by the fireman on payment of fifty cents to ride upon the pilot of the engine and was injiired, it was held that he could recover. — Eucker V. Missouri, etc., E. Co., 61 Tex. 499. This is a case, however, of doubtful authority, since the fireman was not acting within the scope of his employment. In Lake Shore & M. S. B. Co. v. Brown (123 111. 162; 14 N. E. Bep. 197) it was held, that one entitled to transportation could recover for an injury resulting from his riding on the footboard of the engine at the direction of the engineer. Where a cattle drover was injured while riding on an engine with the consent of the engineer, but coutrary to the rules of the company, it was left to the jury to determine whether the company had by its conduct held out its employes to the plaintiff as authorized to consent to his being RAILWAY COMPANIES PASSENGERS. 388 Eailway Company upon [305] the defendant's line, over which the L. C. & D. Co. had running powers. He was carried on the train witli his cattle. — Waterbury v. New York Central, etc., U. Co., 21 Blatchf. 314. The rule is laid down in Thompson on Carriers of Passengers, 265. " There are certain portions of every carrier's vehicles which are so obvi- ously dangerous for a passenger to occupy, that the presence of a passenger there will constitute negligence as a matter of law, and preclude him from claiming damages while In that position. For instance, the engine would seem to be a place designed exclusively for the employes of a railroad company, even in the absence of regulations forbidding the presence of passengers thereon." — Doggett v. Illinois, etc., R. Co., 34 la. 284; Railroad Co. v. Jones, 95 U. S. 489. See Carroll v. Interstate R. T. Co., 107 Mo. 653; 17 S. W. Rep. 889. The same degree of care is required in the operation of a freight train carrying passengers as in the operation of a passenger train. — Interna- tional & G. W. R. Co. V. Irvine, 64 Tex. 529 ; Mexican Cent. Ry. Co. b, Lauricella (Tex. Civ. App.); 26 S. W. Rep. 301; Pennsylvania Co.©. Newmeyer, 129 Ind. 401 ; 28 N. E. Rep. 860. Contra Reber v. Bond, 38 Fed. Rep. 822. In Illinois Cent. R. Co. v. Axley (47 111. App. 307), the distinction is made that the passenger on a freight train assumes a greater risk. Riding upon freight trains in violation of the company's rules is such negligence on the part of the plaintiff as will preclude a recovery for injuries received. — Sherman v. Hannibal, etc., R. Co., 72 Mo. 62; Hous- ton, etc., R. Co. V. Moore, 49 Tex. 31. And a conductor cannot relax the company's rules.— Gulf, _C. & S. F. Ry. Co, v. Campbell, 76 Tex. 174; 13 S. W. Rep. 19. ' A person having cattle on the train who, with ample time to do so, failed to get aboard the caboose but boarded a freight car and was in- jured while riding thereon, was held guilty of contributory negligence, though defendant negligently failed to bring the caboose within a rea- sonable distance of the depot. — Player v. Burlington, etc., Ry. Co., 62 la. 723. See Richmond & D. R. Co. v. Picklesimer, 89 Va. 389; 16 S. E. Rep. 245; Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394; 6 So. Rep. 714. But it would not be negligence per se if plaintiff had not time to set aboard the caboose.— Chicago, M. & St. P. Ry. v. Carpenter, 66 Fed. Rep. 451; 5 C. C. A. 551. But when the company's servants undertake to carry passengers in such trains and a passenger is injured while riding therein, though it is contrary to the rules of the company to allow passengers to ride there, the company will be liable. — Dunn i>.. Grand Trunk R. Co., 68 Me. 187; Creed v. Pennsylvania, etc., R. Co., 86 Pa. St. 139; Whitehead v. St. Louis, etc., Ry. Co. (Mo.;, 11 S. W. Rep. 751. Where plaintiff's intestate, who, in pursuance of a contract for the 384 MORE THAN ORDINARY GARB. ^ injured through the negligence [306] of the defendant's porter in shutting a carriage door at a station belonging to carriage of horses, and in accordance with the custom In such cases, was riding in the same car with the horses in order to care for them, was killed in a collision caused b^ defendant's gross negligence, it was held that he would not, as an ordinary passenger who had voluntarily placed himself In a dangerous position, be deemed to have been guilty of con- tributory negligence. — London, Adm'x. v. Chicago, etc., E. Co., S. C, Wis., Sept. 22, 188S. So where one in charge of a show car rides thereon in the performance of his duty. — Blake v. Burlington, etc., By. Co., Iowa), 66 N. W. Eep. 406. And when a passenger rides upon the top of a freight car, he cannot recover for injuries received (McCorkle v. Chicago, etc., R. Co., 61 la. 666, or the cupola of a caboose (Tuley v. Chicago, B. & Q. B. Co., 41 Mo. App. 432), though he acted under the directions of the station agent (Little Bock, etc., B. Co. v. Miles, 40 Ark. 298), or a conductor. — Atchi- son, T. & S. F. B. Co. V. Lindley, 42 Kan. 714 ; 22 Pac. Bep. 703. But in another case it was held that he could recover wheu he placed himself in that position by the direction of the conductor. — Indianapolis, etc., B. Co. V. Horst, 93 TT. S. 291. Injuries to Free Passengers. — The fact that one who becomes a passenger is carried gratuitously does not relieve the company of the obligations of a common carrier. It must exercise the same care and attention in the transportation of gratuitous passengers as of those who have paid their fares, and is liable to the same extent for negligence. — Todd V. Old Colony, etc., B. Co., 3 Allen, 18; Steamboat New World v. King, 16 How. 469; Little Bock, etc., B. Co. v. Miles, 40 Ark. 298; Wilton V. Middlesex B. Co., 107 Mass. 108; Pennsylvania B. Co. V.Henderson, 51 Fa. St. 316; Jacobus v. St. Paul, etc., B. Co., 20 Minn. 125; Blair V. Erie By. Co., 66 N. T. 313. The relation of carrier and passenger does not necessarily arise on' of the payment of fare. — Cogswell v. West St. & N. E. E. By. Co., 6 Wash. St. 46; 31 Pac. Bep. 411; Galveston, H. & S. A. By. Co. v. Snead, 4 Tex. Civ. App. 31 ; 23 S. W. Rep. 277. A drover attending his cattle on a freight train is a passenger though carried gratuitously. — Pennsylvania B. Co. V. Henderson, 61 Pa. St. 315; New York Central E. Co. v. Lock- wood, 17 Wall. 357; Indianapolis, etc., E. Co. v. Horst, 93 U. S. 291; Smith V. N. Y., etc., E. Co., 24 N. Y. 222; Graham v. Pacific E. Co., 66 Mo. 536; Flinn c. Phil., etc., E. Co., 1 Houst. 469; Cleveland, etc., E. Co. V. Curran, 19 Ohio St. 1 ; Ohio, etc., E. Co. v. Selby, 47 Ind. 471 ; Martin v. Baltimore, etc., E. Co., 14 W. Va. 150; Little Bock, etc., E. Co. V. Miles, 40 Ark. 298; Tex. & P. By. Co. v. Garcia, 62 Tex. 285; New Orleans & N. B. E. Co. v. Thomas, 60 Fed. Bep. 379; 9 C. C. A. 29; Pitcher v. Lake Shore & M. S. By. Co., 61 Hun, 623; 16 N. Y. S. Bep. 62; Porter v. New York, etc., E. Co. 59 Hun, 177; 13 N. Y. S. Eep. 691; RAILWAY COMPANIES FEEE PASSENGEKS. 385 the defendant, but on a platform [307] exclusively allotted to the L. C. & D. Co. It was held that the Louisville, N. A. & C. Ey. Co. v. Faylor, 126 Ind. 126; 25 N. E. Rep. 869; Orcutt v. Northern Pac. R. Co., 46 Minn. 368; 47 N, W. Rep. 1068; Lawson v, Chicago, etc., By. Co., 64 Wis. 447; 64 Am. Hep. 634. So are express agents. — Yeomans v. Contra Costa, etc., NaT. Co., 44 Cal. 71; Kentucky Central R. Co. v. Thomas, 79 Ky. 160; Blair v. Erie Ry. Co , 66 N. Y. 313; Hammond v. N. E. R. Co., 6 Rich. L. 130; Kenney r.NewYork, etc., R. Co., 125Eep. 422; 26 N. B. Rep. 626; Brewer».New York, etc., R.*Co., 124 N. Y. 69; 28 N. E. Rep. 334, affirming 46 Hun, 696. And postal clerks or mail agents. — Seybolt v. New York, etc., E. Co., 94 N. Y. 662; 47 Am. Rep. 75; Cleveland, C, C. & St. L. Ry. Co. v. Ketcham (Indiana), 33 N. E. Rep. 116; Mellor v. Missouri Pacific Ey. Co., 106 Mo. 466; 16 S. W. Rep. 849; Gulf C. & S. E. Ry. Co. v. Wilson, 79 Tex. 371 ; 16 S. W. Rep. 280; Baltimore & O. R. Co. v. State, 72 Md. 36; 18 Atl. Rep. 1107. Contra, Pennsylvania R. Co. v. Price, 96 Pa. St. 266 (by statute!). Towards such persons the obligations of the carrier is the same as towards regular passengers who have paid their fare. And though the ticket or free pass upon which they travel over the road provides that the owner shall assume all risks of injuries growing out of the company's negligence, the carrier is nevertheless liable therefor. — Railroad Co. v. Lockwood, 17 Wall, 367; Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315; Bryan ». Missouri Pac. E. Co., 32 Mo. App. 228; Hopes «. Chicago, etc., Ey. Co., 29 Fed. Eep. 763; Prince v. International & G. N. E. Co., 64 Tex. 144. See 30 C L. J. 397, note; 29 Am. Law Beg. (n. 8.) 391, note; and cases cited above. This is not the rule, however, in New York with reference to injuries to pirsoQS or damage to goods, contracts exempting the carrier from liability for negligence in that State being upheld. — Canfleld v. Balti- more, etc., R. Co., 93 N. Y, 632; 45 Am. Rep. 268; Mynard v. Syracuse, etc., R. Co., 71 N. Y. 183; Wells v. New York Central, etc., E. Co., 24 N. Y. 181. So in Washington.— Muldoon v. SeattleCity Ey. Co., 7 Wash. St. 528; 38 Pac. Rep. 995. Nor is it the rule when the tickets or passes are truly gratuitous, it being held in such cases that the carrier may provide for exemption from negligence. — Kinney v. Central, etc., R. Co., 34 N. J. L. 613; Wells v. New York Central, etc., R. Co. 24 N. Y. 181 ; Indiana Central R. Co. v- Mundy, 21 Ind. 48; Quimby v. Boston & M. R. Co., 150 Mass. 366; 23 N. E. Rep. 205; Camden & A. R. Co. ». Bausch. (Pa.), 7 Atl. Rep. 731. Illinois Central R. Co. v. Eeed, 37 111. 484 (a distinction was taken In this case between gross negligence amounting to willfulness and mere negligence, and it was held that the company could provide for exemp- tion from liability for the latter but not for the former: s. p., Chicago, B. & N. E. Co. V. Hawk, 36 111. App. 327). 386 MORE THAN ORDINARY CARE. defendants were liable for the negligence of their [308] porter (z), Baggallay, L, J., said: ," In respect of that («) Self V. L. B. & S. C. Ey. Co.', 42 L. T. N. S. 179; [ante, p. 301]. This doctrine was announced in a comparktively recent case. — Grls- wold V. N. Y. & N. E. E. Co., 53 Conn. 371; 25 Am. Law Reg. 196. Tie facts were, that plaintiff's intestate, who was employed at de- fendant's station by a restaurant keeper to sell refreshments on the train, and was furnished with a free pass on the road for that purpose, was killed by a collision while .trayeling on defendant's train for his own accommodation, and not for the purpose of his business. The free pass provided that the person accepting it " assumed all risk of accident, and expressly stipulated that the company should not be liable under an.y cir- cumstances, whether of negligence of their agents or otherwise, for any personaWnjury." Thecourt say: — " By the English decisions, it Is clear that the carrier has full power to provide by contract against all liability for negligence In such cases. — McCowley v. The Furneas Ey. Co., L. R. 8 Q. B. 57: Hall v. N. E. Ey. Co., Id. 437; Duff v. The Great N. Ey. Co., L. E. i Irish Common Law, 178; Alexander v. Nepessing Ed. Co., 83 Upper Canada, 474. (This last case Is almost identical with the one at bar.) "In the United States we And much contrariety of opinion. Some State Courts of the highest authority follow the English decisions, and allow railroad companies in consideration of free passage to contract for exemption from all liability for negligence of every degree, provided the exemption Is clearly and explicitly stated. — Wells v. New York Cent. R., 26 Barb. 641, and same case 24 N. Y. 181 ; Perkins u. Railroad Co., Id. 208; Bissell v. N. T. Cent. R. R. Co., 25\Id. 442; Poucher ». New York, Cent. R. R. Co., 49 Id. 263; Maguin v. Dinsmore, 56 Id. 168; Dorr v. New Jersey Steam Nav. Co., 1 Kernan, 486 ; Kinney v. Central E. Co., 33 N. J. L. 409, and 34 Id. 613; Western and Atlantic Ed. v. Bishop, 50 Ga. 465. " Other courts, also of high authority, concede the right to make such exemption in all cases of ordinary negligence, but refuse to apply the principle to cases of gross negligence. — Illinois Cent. E. Co. v. Eeed, 37 111. 484 ; Ind. Cent. R. v. Mundy, 21 Ind. 48 ; Jacobus o. St. Paul & Chicago R. Co., 20 Minn. 125. " And other State courts of equal authority utterly deny the power to make a valid contract exempting the carrier from liability for any degree of negligence.— Railroad Co. v. Curran, 19 Ohio St. 1; Mobile & Ohio E. V. Hopkins, 41 Ala. 486 ; Pennsylvania E. Co. «. Henderson, 51 Pa. St. 815; Fllnn v. Wilmington, etc. E. Co., 1 Houst. 469. " The Supreme Court of the United States in Railroad Co. v. Lockwood (17 Wall. 357), where a driver had a free pass to accompany his cattle on their transportation, Aeld, in opposition to the New York and English RAILWAY COMPANIES FREE PASSENGEUS. 387 portion of the line over which they had running powers, [309] they had the same duties and were under the same cases, that the pass was not gratuitous, because given as one of the terms for carrying the cattle for which he paid. " The reasoning of Bradley, J., was directed so strongly to the dispar- agement of the New York decisions, that it might have indicated opposi- tion to the principle of those cases In other respects, had not the opinion concluded with this disclaimer : < We purposely abstain from expressing any opinion as to what would have been the result of our judgment had we considered the plaintiff a free passenger instead of a passenger for hire.' " It may be inferred from these citations that the weight of authority is in favor of the rule allowing exemption from liability for negligence in such cases. In some of them the contracts were founded upon a consideration — as " drovers passes " — and were not purely gratuitous, and it is believed that but few of them are of the latter class. The reasoning of the court is not quite clear. If, as the court say, the arrangement between the parties ought not to be regarded as a contract, the company is not relieved of liability, and it is difficult to perceive the analogy the court attempts to draw between the servant waiving the rule of respondeat superior in case of injury by the negligence of his fellow- servant, and the passenger waiving his right of action for the company's negligence. The following persons have been held not passengers and not entitled to recover in case of injury : An employe riding from his home to his place of business and back on a free-pass. — Vick. v. New York Cent., etc., E. Co., 95 N. Y. 267; Kansas Pac. E. Co. v. Salmon, 11 Kan. 83; Eyan v. Cumberland Valley E. Co., 23 Pa. St. 384. (In Abell v. Eailroad Co., Md. Ct. App., 19 Eep. 494, it was held that an employe of a railroad company, riding to his home on a free pass, after the services of his employment are over for the day, is entitled to recover for injuries caused by a negligent collision. The court, after citing as in point; Trainor's case, 33 Md. 642; Hutchinson v. Bailroad Go., 6 Eng. Ey. & Canal Cases, and Eussell v. Eailroad Co., 5 Duer, say: "In the case before us the servant was not at the time of the injury acting in the service of the master. Nor was he engaged in fulfilling any part of the contract with his employer. It was no part of his con- tract with the railway company that he should go to Baltimore to visit his family, but such visits were entirely outside and foreign to the serv- ice he owed it, and what he had contracted to perform. By the express permission of hia superior officer, he was released from the obligation of service on the day on which he was killed. He was, therefore, on that day, substantially a stranger, and entitled to all the privileges he would have had if he had not been a servant, unless the fact urged in the argu- 388 MOKE THAN OEDINAEY CARE. obligations relating to their passengers as they had or were [310] under in respect of the portion of the line which was their own." [311] V&e of Premises. With respect to the use by railway companies of their premises, in their capacity as carriers (a), it has in some cases been held that there was no negligence and in others that there was, and it is difficult to extract from them any [312] principle whatever; and in truth it is obvious that each case must mainly depend upon its own peculiar circum- stances (6). It may perhaps be gathered that in general (a) The qnestion of the use by them (&} See per Eelly, C. B., In Hose v. X. of thelT premlBes not In their capacity E. By. Co., 34 L. T. 763, -ptr Coleiidge, C. as canleis, bnt as corporations using J., In Bobson v, "&, E. By. Co., L. B. 2 their own property, uatnrally arranges Q. B. D. 85; 16 L. J. Q. B. 60, 0, A. itself under the head of" Corporations," or of " Owners of Property," aupra. ment, by the appellee, that he was riding in the cars upon an employe's pass, will alter the case. " The pass was no part of the contract between Abell and the railroad. The contract between them was to pay a certain sam for a day's work. It was given as a mere gratuity, and as other papers are given. No action for a breach of contract could have been maintained by Abell, if the road had taken away the pass at any time. Sometimes a special con- tract is made with the recipient of the pass, and written or printed on it, that the person accepting the pass will, in consideration thereof, assume all the personal risk incident to the travel. We must not be un- derstood to decide upon the legal effect of such a contract. That ques- tion does not arise in this case, and it will be time enough to decide it when it does arise. All thit we mean now to decide is, that when the carrier undertakes, without any special contract, to carry a passenger gratuitously, that he is entitled to the same degree of care as if he had paid his fare.") A newsboy selling papers on the train. — Snyder v. Hannibal, etc., K. Co., 60 Mo. 413. One riding on the train and voluntarily assisting an express agent. — TJnion Fac. B. Co. v. Nichols, 8 Kan. 606. Or one riding on a locomotive and assisting the fireman. — Woolsey V. Chicago, B. & Q. B. Co., 39 Neb. 798; 68 N. W. Bep. ill. RAILWAY COMPANIES USE OF PREMISES. 389 where an accident happens by reason of something unusual being done at that moment (c) by the company there has [313] been negligence; but where an accident happens in the usual and every-day course of events {d), and there has been nothing done by the company varying that course (e), which course has existed for some time and from which no accident has happened, then the presumption is that there is no negligence on the part of the company, but either the injury is a pure accident, or the plaintiff has only himself to blame. In Watkins i>. G. W. Ey. Co. (f), two learned judges, Denman and Lopes, JJ., differed as to whether there was any evidence of negligence in placing a plank across a staircase so as to catch the head of a passenger descending. It would seem the question ought to have been left to the jury as well as the question of contributory negligence. There was the fact of an unusual state of the premises arguing negligence on the part of the defendants, and there was evidence that the plaintiff was so careless as not to look where she was going, and her own negligence may have been the proximate cause. There does not (c) Shepperd v. Mid. B7. Co., 25 L. T. C. P. 132 (brass bonnd steps worn 879; 20 W.B. 705 (ice on platform); inch- smootli); Danielv.Met. By. Co., L.R.S Olson V. L. & Y. R7. Co., 35 L. J. Ex. SI; H. L. 45 (girder falling — Lord Bather- 3 H. &C. 531 (hamper taken from train ley remarks the workmen employed had and placed by side of line) ; Grafter v. never known an accident before this Met. Ey. Co., L. B. 1 0. P. 300 ; 36 L.'J. C. time) ; Owen v. G. W. By. Co., 46 L. J, P. 132 (slipping on steps nosed with Q. B. 486, per Losh, J. (market train, as brass; see also Davis «.L. B. &S. C. By., usnal, too long topnll np at platform, 2 F. & F. 583) ; Hogan v S. E. By. Co., 28 nnnsnal accident) ; Toomey v. L. B. & L. T.O. P. 271 (overcrowded platform); S. O. By. C, 27 L. J. 0. P. 39; 3 0. B. Jackson v. Metropolitan By. Co., L. B. 10 N. S. 146 (arinal and lamp room close G. P. 49; 44 L. J. G. P. 83 (overcrowded together, plaintlfl injured by going into platform, Insofficiont porters); overruled latter by mistake) ; Gt. T. W. By. Co, «;. on appeal, L. B. 3 App. Gas. 193; 17 L. J. Davies, 39 L. T. N. S. 475 (cow injured H. L. 303; see also Wilkinson «. Fairie, by insufficiency of catch to gate on level 32 Ii. J. Ex. 73 ; 1 H. & C. 633 (carman crossing which had been safely used for went into dark passage and fell down nine years) ; see also Patcbell v. Irish staircase, a different thing from a hole K. W. By. Go., 6 Ir. B. C. L. 117. or trapdoor.) (e) See, post', as to "Presumptions," (rf) Cornman ». East By. Co., 29 L. J. Gh. VI. Ex. 94; Blackman v. L. B. & S. G. By., (/) Watkins v. Gt. W. Ey. Co., 46 L. 17 W. B. 769 (weighing machine in usual J. 817. place) ; Grafter v. Met. By. Co., 35 L. J. 390 MORE THAN OKDINAKY CABE. appear to have been any appeal in the cdse {g). So, too, railway companies ought to guard against unusual crowds [314] of which they have notice, such as those occasioned by excursion trains (h). Where a plank and roll of zinc fell upon a passenger through a roof upon which a marn was moving about for the purpose of seeing to repairs, it was held, in the absence of any evidence to show that the man was negligent, or that the defendants knew, or had the means of knowing, that the rdof was insecure, there was no evidence of negligence at all (i). Railway companies, either expressly or impliedly, inyite persons, who are intending travelers (k), upon their prem- ises and ipto their carriages, and in so doing put them off their guard by a sort of warranty of safety ; and they are, therefore, bound to use toward such persons something more than ordinary care; and there seems to be in the case of railway companies an additional reason for the exercise of great care in the fact of the greatness of the danger, and the inability of the passenger to help himself (I). Where the defendants made a bridge for more convenient access from one platform to another, and a passenger was injured in crossing by reason of the bridge being badly built, the defendants were held liable (m) upon the ground ^g) Abbott V. Freeman, 35 L. T. N. S. etc., is misleading bas been the subject 783, leversing 34 L. T. X. S. 5U (boise of conflicting decisions In America, being shown at Aldridge'B kicked the Chicago Ry. Co. v. Bobinson, 8 III. 110; plaintiff). ^ Cohen B. Enreka Ey. Co., 14 Nev. 376; (A) Hogan V. S. E. By. Co., 28 L. T. X. Pehnsylvania Ry. v. Rightei, 4!i N. J. L. S. 271 (person pnshed off platform by ISO. See contra, Bnnting v. Central Fa- nncontroUed crowd) . clffc Co., 14 Nev. 391. (i) Welfare v. L. B. & S. C. By. Co., (m) Longmore v. G. W. By. Co., 19 0. L. B. i Q. B. 693; 38 L. J. Q."B. 241. As B.' N. S. 183; 35 L. J. 0. P. 135, note, to haflng the'means of knowing whether There was a safe bridge further off by things are in a safe condition or not, see which the plaintiff might have crossed. Withers v. North Kent By., 27 L. J. Ex. — [GlUmore t>. PhUadelphia & E. B. Co., 417; International By. Co. v. Halloren, i:4 Fa. St. 375; 25 Atl. Bep. 774; Johns 63 Tex. 46; 37 Am. Bep. 744. v. Charlotte, 0. & A. B. Co., 39 S. C. (Je) And even those accompanying 162; 17 S. E. Eep, 698; East Tenn., V. passengers to see them off (I suppose & G. B. Co. v. Watson, 94 Ala. 684; 10 So. reasonably doing so). Bep. US.] (I) How far the absence of signals, RAILWAY COMPANIES USB OF PKEMISES. 391 that the passenger was invited to use the bridge. So where the company have always allowed passengers to cross by a particular path it is equivalent to an assurance that they may safely use it (n). And where thete is a sta- tion unprovided with a footbridge and the company by [315] their acts invite persons to cross the rails, they are bound to take more than ordinary care (o). When notices have been put up forbidding persons to cross the liiue, but the company's servants have allowed the notice to be disregarded, such notices are no answer to an action for negligence {p), but where there is no sufficient evidence of the company's acquiescence in the passenger's crossing the line, it is the passenger's own negligence if he crosses the line, being aware of a bridge provided on pur- pose for crossing (§'). Carriers of passengers are not liable for any injury oc- casioned by anything extraneous to the work in which they are engaged, and as to which they had no reasonable ground for supposing that ordinary and proper care had not been taken by those persons whose duty it was to take such (n) See Sogers v. Bhymney By. Co., points they are not boand to protect 26 L. T. IT. S. 1879.— [Mlssonrl Pac. Ey. snoh persons, especially if persons gen- Co. V. liOng, 81 Tox. 253 ; 16 S. W. Bep. erally cross at a particular point, Har- 1016.] rlson ». N. E. Ey. Co., 29 L. T. N. S. 844. (o) Glrdwoocl v. N. B. By. Co., Conrt This case does not appear to have been of Session, 4th series,, Vol. IV. p. 115. cited on the argument In Dublin, W, ft tp) Dnblln, W. & W. Ey. Co. v. Slat- W. Ey. Co. v. Slattery. tery, L. E. 3 App. Cas. 1155. It seems (g) Wilby«. Midland By. Co., «5L. T. that if the company acquiesce in persons N. S. 244 Q. B. ; Clarke v. Md. By. Co., 43 crossing their lines promiscuously at all L. T. N. S. 381. It is said in Wood on Ballroads (1894) : — " No precise rule of diligence can be stated, bntthe company is bound to construct its roadway in such a manner that it may resist all actions of the weather from floods or whatever cause arising that may be expected to occur, although only at long intervals; and as a necessary consequence if extraordinary or unprecedented floods have once occurred it must redouble its vigilance and place its embankments in such a condition as to resist others of similar severity or intensity." p. 1224; citing Bllet ■0. St. Louis, etc., B. Co., 76 Mo. Sl8; 12 Am. & Eng, R. Cas. 183; Ely v. St. Louis, etc., B. Co., 77 Mo. 3t; International R. Co. v. Halloren, 53 392 MORE THAN ORDINARY CARE. [316] care (r). They are bound to see that everything under their own control is in full and complete and proper order (s). So they are bound to construct their works so as to resist all ordinary storms, &c., which may reasonably be expected, though they may be of rare occurrence (t). Proprietors of coaches and carriages are responsible to those whom they invite to enter their vehicles (u). (r) Daniel v. Met. Ey . Co., L. B. 5 169 (Impiopei coDBtmction of coach, Eng. & Ir. App. IS. omission of iron railing between laggage («) li. and passenger); Templeman v. Bay- (t) G. W. Ry. Co. of Canada v. Faw- don, 13 C. B. 607 (sliafts of cart break- cett, 1 Moo. P. C. N. S. 101. ing; Welch v. Lanrance, 2 Chit. 262 (u) Bremner v. Williams, 1 C. & P. (chainstay of cart) ; Israel v. Clarke, 4 4U (coach jast prepared and examined Esp. 259 (overloading a coach) ; so also two Journeys before accident, held are ferrymen, see Willoughby v. Hor- liable) ; Onrtis v. Blrinkwater, 2 B. & Ad. ridge, 12 0. B. 742. Tex. 46; 37 Am. Kep. 744; Baltimore, etc., R, Co. v. Sulpher Springs, 96 Fa. St. 65. Again at p. 1221 the same author says: — " Thus, while it is undoubtedly bound to construct them (bridges) in such a manner as to withstand the effects of ordinary freshets, or, possibly, extraordinary freshets, yet it is not responsible for not securing them against unprecedented tieshets, sued as could not have been reason- ably foreseen or guarded against." Citing Gillespie v. St. Louis, etc., R. Co., 6 Mo. App. 554; and Philadelphia B. Co. v. Anderson, 94 Pa. St. 351. In that case it was held that a railroad company was liable for injury to a passenger resulting from the washing away of an embankment by an extraordinary freshet where the nature and formation of the surrounding soil was such that the washout could have been avoided by proper care. (u) It would seem that proprietors of stage coaches were not held to the same degree of care as railway companies. But according to the expressions used in decided cases they are bound to exercise the great- est care towards passengers, and are liable for slight negligence, " Pas- senger carriers are liable for injuries resulting from even the slightest negligence. * * * They are bound to use the utmost care and dili- gence of cautious persons to prevent injury to passengers." — Farish v. Reigle, 11 Gratt. 697; Fairchild v. Cal. Stage Co., 13 Cal. 699; Derwort V. Loomej, 21 Conn. 246; Gallagher v. Bowie, 66 Tex. 266; 17 S. W. Bep. 407. "The highest degree of care which a reasonable man would use is required." — Hall v. Connecticut River Steamboat Co., 13 Conn. 319. The duties of stage coach proprietors, in respect of furnishing proper OABBIEBS — STAGE COACHKS. 393 [317] And it has been Held that the proprietor is liable for latent defects (as) provided the defect could have been (x) @baip V. Gray, 9 Blng. 167. As to latent detects, see Bandall v. Kewsome, ante. and suitable vehicles, are well stated by Mr. Justice Stoiy, in Story on Bailments.— |? 592-594, 698, 600, 602. " In the next place they are bound to provide coaches reasonably strong and sufficient for the journey, with suitable harness, trappings and equipments, and to make a proper. examination thereof previous to each journey. — Bremmer v. Williams, 1 Car. & P. 414 j Crofts v. Waterhpuse, 3 Bing. 821 ; Jones ti. Boyce, 1 Stark. 493; Christie. v. Griggs, 2 Camp. 80; 1 Bell's Comm. (5th ed.) 462; Sharp v. Grey, 9 Bing. 457; Camden, etc., R. Co. V. Burke, 13 Wend. 611, 627, 628. " In other terms, they are bound to provide roadworthy vehicles suit- able for the safe transportation of passengers. If they fail in any of these particulars, and any damage or injury accrues to the passengers, they will be responsible to the full extent thereof. — Aston v. Heaven, 2 Esp. 533 ; 1 Bell's Comm.' (5th ed . ) 462, 463 ; Sharp v. Grey, 9 Bing. 467 ; Camden, etc., R. Co. ■». Burke, 13 Wend. 611. Hence it has been held that if there is any defect in the original construction of the stage coach — as, for example, in the axletree — although the defect be out of sight and not discoverable upon a mere ordinary examination, yet if the defect might be discovered by a more minute examination, and any dam- age is occasioned to the passengers thereby, the coach proprietors are answerable therefor. — Sharp v. Grey, 9 Bing. 467; Christie ». Griggs, 2 Camp. 80. The same rule will apply to any other latent defect which might be discovered by more minute examination and more exact dili- gence whereby the work is not roadworthy and damage thereby accrues to any passenger. In this respect there does not seem to be any differ- ence between the cases of a stage coach which is not roadworthy and of a ship which is not seaworthy. — Sharp v. Grey, 9 Bing. 467; Christie v. Griggs, 2 Camp. 89; Camden, etc., R. Co. v. Burke, 13 Wend. 611; HoUis- ter V. Nowlen, 19 Wend. 234 ; Cole v. Goodwin, 19 Wend. 251 ; Lawrence V. Green, 70 Cal. 417; 11 Pac. Rep, 750. Stage companies are required to furnish suitable horses and drivers (Knight V. Pacific Coast Stage Co. (Cal.), 34 Pac. Rep. 868; Gallagher V. Bowie, 66 Tex. 266! 17 S. W. Rep. 407) ; and also coach lights on dark drives. — Anderson v. Scholey, 114 Ind. 553; 17 N. E. Rep. 125. Railway Premises. — Railroad companies are under obligations to pro- vide reasonable accommodations at stations for passengers who are invited and expected to travel on their trains. — McDonalds. Chicago, etc., R. Co., 26 la. 124; Bennett v. Louisville, etc., R. Co., 102 XJ. S. 577; Imhoff «. Chicago, etc., R. Co., 20 Wis. 364; Stewart©. International, etc., R. Co., 53 Tex. 89; Columbus, etc., R. Co. v. Farrell, 31 Ind. 408; 394 MORE THAN ORDINARY CARE. dis- [318] covered on examination, or could have been prevented in the course of manufacture (y). (y) Redhead v. Mid. Ey. L. E. 2 Q. B. ardson v. Eastern Ey., L. E. 1 C. P. D. 412; 4Qi B. 379; 38 L. J. Q. B. 169; Eich- 312. Knight V. Portland, etc., E. Co., 56 Me. 234; Gaynor v. Old Colony, etc., R. Co., 100 Mass. 211; Sweeny v. Old Colony R. Co., 10 Allen, 373; Falk V. New York, S. & W. R. Co., 56 "W. J. L. 380; 29 Atl. RepJ 167; AtcM- son, T. & S. F. R. Co, v. Shean, 18 Colo. 368; 33 Pac. Rep. 108; Gnlf, C. & S. F. Ry. Co. V. Butcher, 83 Tex. 309; 18 S. W. Rep. 683; Evans d. Interstate R. T. Ry. Co., 106 Mo. 594; 17 S. W. Rep. 489; Burnham V. Wabash W. Ry. Co., 91 Mich. 523; 52 N. W. Rep. 14; Texas & P. Ry. Co. V. Brown, 78 Tex. 397; 14 S. W. Rep. 1034; Pennsylvania Co. v. Marlon, 123 Ind. 416; 23 N. B. Rep. 973; Richmond City Ry. Co.i). Scott, 86Va. 902; US. E. Rep. 404; Greene. Pennsylvania R. Co., 36 Fed. Rep. 66 : Cross V. Lake Shore & M. S. Ry. Co., 69 Mich. 363; 37 N. W. Rep. 361 ; Smith V. Central E. & B. Co. (Ga.), 6 8. E. Rep. 772; Fordyce v. Merrill, 49 Ark. 277; 5 S.W. Rep. 329; Turner c.Vicksburg, etc., R. Co., 37 La, Ann. 648; 55 Am. Rep. 514; Reynolds v. Texas & P. Ry. Co., 37 La. Ann. 694. (A lady waiting at a railway station for passage upon a train soon to depart, was Invited \^y the ticket agent to sit in an empty car standing on the side track while the station-room was being cleaned. It was held that she was entitled to the same protection from the company whU« in the car as If in the regular waiting-room; in either case she was a passenger in the care of the company. The train to wbich the car was attached began to be moved without conductor or larakeman on board, and with- out signal or notice. The ladies were startled and alarmed lest they should be carried away, and they hastened to the rear of the car and jumped out, while the car was still abreast of the platform and appar- ently moving slowly. One of them was thrown down and injured, and obtained a verdict against the company of $3,091.66 for that injury. It was held that the facts did not require that the verdict be set aside. — Shannon v, Boston, etc., R. Co., 78 Me. 62. " They are bound," said the court in McDonald v. Chicago, etc., R. Co., 26 la. 124, " to keep in safe condition all portions of their platforms and approaches thereto to which the public do or would naturallyresort, and all portions of their station grounds near to the platform where passengers or those who have purchased tickets with a view to take passage on their cars would naturally or ordinarily be likely to go." They have accordingly been held liable for injuries caused by defective platforms. . (McDonald v. Chicago E. Co., supra; Dobiecki v. Sharp, 88 N. Y. 203; St. Louis, etc., E. Co. v. Cantrell, 37 Ark. 619; Louisville, etc., R. Co. V. Wolfe, 80 Ky. 82; FuUerton v. Fordyce, 121 Mo. 1; 25 S. W. Eep. 687; Louisville, N. A. & C. Ey. Co. v. Luca8,,119 Ind. 683; 21 N. B. Eep. 968; Keefe o. Boston & A. E. Co., 142 Mass. 261) ; for failure RAILWAY COMPANIES — USE OF PREMISES. 395 [319] So also railway companies are liable for the faulty construction of carriages into which they invite trav- elers, except as to latent undiscoverable defects (z). (,z) See Bedhead v. Mid. B,y. Co., science may snggest) ; bnt where a com- supra; Richardson v. G. East. By. Co., pany had tested a wheel, bat afterwards supra; see also Stokesti. East. Go. Ky., 2 did not test it for some time, the jary 7. & F. 691 ; Ford v. L. & S. W. By. Co., 2 having fonnd that they onght, a rale for F. & F. 730 (not bonnd to nse every pos- ' a new trial was refased, Manser v. East sible precaation which specnlatlTe Co. By. C, 3 L. T. K. S. 585. to keep them clear of snow and Ice (Weston v. Elevated E. Co., 73 N. Y. 695; Timpson v. Manhattan Ey. Co., 52 Hutj, 489; B N. Y. S. Eep. 684) ; and they have been held liable for a failure to keep them properly lighted for the safe Ingress and egress of passengers. — Patten v. Chicago, etc., E. Co., 32 "Wis. 524; Beard v. Connecticut, etc., E. Co., 48 Vt. 101; Enight V. Portland, etc., E. Co., 56 Me. 234 ; Peniston ». Chicago, etc., E. Co., 34 La. Ann. 777; 44 Am. Eep. 444 ; Jarvis v. Brooklyn El. E. Co., 133 N. T. 623; 30 N. E. Eep. 1150; 16 N. Y. S. Eep. 96; Galveston, H. & S. A. By. Co. V. Thornsberry (Texas), 17 S. "W. Kep. 521; Alexandria & F. B. Co. V. Herndon, 87 Va. 193; 12 S. E. Eep. 289; Alabama G. S. R. Co. V. Arnold, 84 Ala. 159; 4 So. Eep. 359; Grimes c. Pennsylvania Co., 86 Fed. Eep. 72. So where a passageway from the waiting-room to the tracks is so narrow that it cannot be safely used by persons intend- ing to become passengers. — Eedner ». Lehigh &H. Ry. Co., 73 Hun, 562; 26 N. Y. S. Eep. 1050. But the passenger must himself be without fault. — Eenneker v. South Carolina Ey. Co., 20 S. C. 219; Palmer v. Pennsylvania Co., Ill N. Y. 488; 18 N. B. Eep. 859; Lafflin v. Buffalo & S. W. E. Co., 106 N. Y. 136; 12 N. E. Eep. 699. Eailway companies do not owe the same care in respect to the safe condition of their premises to licensees or those who resort to them for convenience or pleasure only. And where one took refuge from a storm in a station house and was injured by a portion of the building being blown down upon him, the company was held not liable. — Pittsburgh, etc., E. Co. V. Bingham, 29 Ohio St. 374. See Bedigan v. Boston & M. E. Co., 156 Mass. 44; 28 N. E. Eep. 11.S3. So where one of a crowd which had gathered upon a railway platform to witness a parade, was injured by its giving way, it was held that no recovery could be had against the company. — Gillis v. Pennsylvania E. Co., 69 Pa. St. 129. And where plaintiff, who was well acquainted with the locality, fell into a turn-table located in the street when there was a well-beaten path on the side of the street several feet from the turn-table, he cannot recover damages.— Early v. Lake Shore & M. S. By. Co., 66 Mich. 349; 33 N. W. Eep. 813. The obligation of exercising care in keeping their platforms and grounds In a safe condition extends not only to passengers, but to those 396 MORE THAN OKDINAEY CARE. Use of Train and Carriages. There have been numerous decisions upon the question whether the fact of a train not puUmg up at a platform, coupled with other circumstances, is negligence or not. Those other circumstances are diflFerent in each case, and are the turning points in each decision (a). In these (a) See remarks by Eelly, 0. B., in ridge, C. J., in Bobson v. IT. E. By. Co., Bosev. N. E. By. Oo.,m/ro:and byOole- infra, who come upon the premises, having business with the company. In one case (Tobin ». Portland, etc., R. Co., 69 Me. 183) the company was held liable for injuries to a hackman carrying a passenger to the depot, by stepping Into a bole in the platform. In another case plaintiff was injured while on the platform reading for another, who could not read, a posted notice of stock killed by trains. — St. Louis, I. M. & S. By. v. Fairnbairn, 48 Ark. 491; 4 S. W. Rep. 50. Railway companies must not only keep their platforms In good condi- tion, and properly lighted, but they must make them of sufficient width. Where one was struck and injured by a train of cars which extended over a narrow platform, leaving a space of but two feet upon which to stand, the company was held liable. — Chicago, etc., R. Co. v. Wilson, 63 111. 167. And where a passenger, while waiting upon the platform of a station, was injured by a mail bag thrown from the train, according to custom, and while the train was running at full speed, it was held he had a right of action against the company. — Snow v. Fitchburg R. Co., 136 Mass. 662; 49 Am. Rep. 40; Carpenter v. Boston, etc., R. Co., 97 N. Y. 494. See Muster u. The Chicago, etc.. By. Co., 61 Wis. 326. So where a passen- ger is injured by stumbling over mail bags in the dark, although the bags were thrown out by postal clerks. — Sargent o. St. Louis & S. Ry. Co., 114 Mo. 348; 21 S. W. Rep. 823. And where one assisting a friend who was about to take the train to carry his trunk across the railway platform, five to eight feet wide, and was struck by the bumper of a car projecting eighteen inches over the . platform, the question of plaintiff's contributory negligence was submit- ted to the jury, the testimony being conflicting as to whether a bell or whistle was sounded. — Langan v. St. Iionis, etc., Ry. Co., 72 Mo. 392. See Texas & Fac. Ry. Co. v. Best, 66 Tex. 116; Hamilton v. Texas & F. Ry. Co., 64 Tex. 251 ; 53 Am. Rep. 756. ' Where one went to a depot to meet his wife, expected on an incoming train, and fell into a hole on the company's grounds, while in search of a place to urinate, the company having provided no accommodation for that USE OF TRAIN AND CARRIAGES. 397 [320] cases, as in all others, the question of negligence is entirely one for the jury (6). There is probably no negli- 0>) Bridges v. North London By. Co., dence, a jadge wonld non-salt ; Met. By. infra; Kobson v. N. E. By. Co., infra, Co. o. Jackson. See ante. though upon a mere scintilla of evl- , purpose, it was held liable tor injuries received. — McKone v. Michigan Cent. R. Co., 51 Mich, 61; 47 Am. Rep. 596." But where one went to meet his wife on an incoming train and boarded the train outside of the depot, and while attempting to pass from one car to another fell off of the platform, which was insufficiently lighted, it was held he could not recover, the coart saying that by leaving the depot and going on to the track, he forfeited the right of a passenger. — Stiles v. The Atlanta, etc., R. Co., 65 Ga. 370.. In Morris v. New York Cent. R. Co. (106 N. Y. 678 ; 13 N. E. Rep. 456 ; 32 Alb. Law Jour. 591), it was held, that if a conductor or other employe chai^eable with care and prudence in looking after the safety of passen- gers, had notice and knowledge of danger to any of them because of their having an unusual and improper package in the rack overhead when seated in the car, the company is chargeable with negligence for its non- removal; and when on the question of notice the evidence is conflict- ing, the case is properly submitted to the jury. The cause of the injury was the falling of a clothes-wringer placed by another passenger in the rack over plaintiff's seat. The court say : — " The wringer was wrapped up in brown paper, more or less conceal- ing its real character. On this point there was some diversity, perhaps conflict of proof. The plaintiff testified that he noticed the parcel that was In there when he sat down ; that he could see that the ends were open, but could not discover what it was ; that the reason he could not tell what the package was, was because his eyesight was so short. The de- fendant's witnesses testified to the effect that the package was so wrapped up that an observer could not tell or see what it was. The learned trial judge ruled that there was no evidence upon which the jury .could find that the car or rack was insufficient; also, that there was no negligence on the part of the defendant in receiving the wringer in the car, or in permitting it to be put in the rack, or in allowing it to remain there, unless the appearance of the package conveyed to the defendant's employes implied notice of its character; and further, that the conductor was not bound to examine packages placed iu the rack to see that they contained nothing dangerous to passengers, from falling therefrom; bnt he refused to non-suit the plaintiff, and submitted the case to the jury, upon the question whether the package, as done up, was in such shape, as under the circumstances, should have attracted the attention of the defendant's employes, in the exercise by them of reasonable care and prudence to its real character; and charged the jury that if this was 398 MORE THAN OKDINARY CAKE. [321] genoe in the mere fact of a train not pulling up at a platform, provided due care is taken that no injury arises so, then that they should have seen to it that it was removed. To the refusal to non-suit, and to such ruling, the defendant's counsel ex- cepted. "After much reflection we are of the opinion that the rulings of the court were sound. In effect it was a holding and an instruction to the jury that if the conductor or other employe chargeable with care and prudence in looking after the safety of passengers had notice and knowl- edge of danger to any of them, because of their having an unusual and improper package in the rack overhead when seated in the car, the de- fendant would be charged with negligence for its non-removal. " Were the case destitute of all proof on the subject, it would be quite different from what it is; bat ther^ was' proof bearing on the question submitted. The appearance of the package, how wrapped up, its qual- ities of danger, and to what extent they were concealed from observa- tion, were subjects as to which witnesses were examined and gave testi- mony proper to be considered and weighed. This case differs from Bougan v. 0. T. Co., 66 N. Y. 1, to which we are cited by the defendant's counsel. There the question was whether the defendant had reason to apprehend the danger charged as ground of negligence. It was held that it had not, hence was under no obligation to provide against the danger. Not so here, in case the defendant had notice or knowledge or on the proof, should be held to notice or knowledge, of the danger im- pending over the passengers. " The case of Chrocheron v. N. S. S. I. F. Co., 66 N. Y. 656, is similar in principle to the Dougan case; as is also Cleveland v. N. N. J. S. Co., 68 N. Y. 306 ; and the same may be said of Lof tus v. V. F. Co., 84 N. Y. 455; 38 Am. Hep. 533. "As regards the case of Keeley v. E. W. R. W. Co., 47 How. 256, it will hardly be contented that the liability of the defendant for the injury would have been in doubt if it had been proved that the latter had been notified of the misplaced switch, and had omitted to put it In place; and so also in Joy v. W. Co. 114 Mass. 63, in case the company had been held to the knowledge that the guard-chain was down, and yet had made no effort to prevent the too hasty egress of passengers from the boat. "In Carpenter v. B. & R. Co., 97 N. Y. 494; 49 Am. Eep. 540, the doctrine of the cases above referred to was recognized and approved; but the defendant was held responsible on the ground that it was charge- able with notice of the danger, yet with such notice it omitted to take reasonable and proper precaution to prevent injury therefrom. So in the case here before us, if the defendant was chargeable with notice of the danger which impended over the i>IaititiS, and permitted its contin- uance after such notice, liability for the injury to him resulting from it must follow as a matter of law, so be it that he was himself free from USE OF TKAIN AND CAERIAGES. 399 from it; but if, from want of such care, or if, by some action of the defendants connected with such stopping, the plaintiff is led into danger, the defendants are liable for negligence. If, in fact, the stopping is of a misleading [322] character (c), that is to say, of such a character as to mislead a reasonable person (c?), the defendants will be liable. This may depend upon how long the train stops (e) ; whether it is dark or light {f); whether. there is an express or implied i^nvitation to alight (^g) ; or other such like cir- cumstances. If there is no misleading — if, for instance, the plaintiff exercises his own discretion in the matter, and in broad daylight chooses to jump from the carriage rather than run the chance of being carried on, or the trouble of insist- ing upon the train backing, then the company are not lia- ble (A). It should seem that a railway company is not bound to (c) Ab to the effect of -pnttlng the Invitation; aee per Lord Hatheily In plaintiff off his guard, see the judgments Bridges v. N. L. By. Op., mpra; and aee in D. W. & W. By. Co. v. Slattery, -L. E. Lewis ». L. C. & D. Ry., infra) ; Weller v. 3 App. Gas. 1156. Jj.}i. &S. O.Rj. Co., supra. (In this case (,d) Dayey v. L. & S. W. By. Co. , 12 Q. all three elements calculated to mislead B. D. 70. were present ~ Co., 143 Mass. 267; 9 N. E. Rep. 615; 28 Am. & Eng. R. Cas. 160. In Stevenson v. Pullman Palace Car Co. (Tex. Civ. App.J, 26 S. W. Rep. 112), the court said: " The mere fact that appellant was a passen- ger in the coach of appellee fised upon appellee the duty to use reason- able care to guard his property from theft, and this duty could not be evaded by any words printed on the check given the passenger, or being posted up in the cars." Thus, the sleeping car company is responsible for money stolen by the porter (Pullman Palace Car Co. v. Gavin, 93 Tenn. 63; 23 S. W. Rep. 70) ; or where plaintiff's satchel, placed between herself and the wall of the car, is stolen (Pallman's Palace Car Co. v. Martin, 92 Ga. 161; 18 S. E. Rep. 364); or where a passenger placed in the vacant berth above him articles which are stolen therefrom. — Florida V. Pullman Palace Car Co., 37 Mo. App. 598. See Carpenter v. New York, etc., R. Co., 134 N. Y. 53; 26 N. E. Rep. 277. So, where the plaintiS placed his valise on the floor of the smoking room while he went out, leaving the conductor and porter in the car, and upon returning failed to find it he can recover from the company for such personal effects as he vras reasonably expected to carry with him. — Pullman Palace Car Co. v. Pollock, 69 Tex. 120; 6 S. W. Rep. 815. " The settled law is, that a sleeping car company is not an insurer of the baggage of the passenger, but that its liability, at most, is that of a bailee for hire. In the case of a loss' of the passenger's baggage or be- longings it is, therefore, liable, if at all, only on the ground of negligence ; and, in order to be so liable, itamust have been negligent in the per- formance of some duty which it assumed to perform for the passenger. That duty, so far as adjudged cases seem to have gone, is, that It will maintain in the car a reasonable watch during the night while the passenger Is asleep. Now we go further, and, speaking with reference to the facts of this case, we hold that the duty of keeping watch does not terminate with the period during which the passenger is actually asleep, but that it extends to keeping a reasonable watch over such nec- essary baggage and belongings as he cannot conveniently take with him SLEEPING CAB COMPANIES. 405 [329] It is very doubtful whether not whistling before coming to a station where persons are in the habit of cross- nor watch himself while he is absent from his berth in the washing-room, preparing his toilet after arising in the morning. This daty of watch- fnlness extends so far as to make the sleeping car company liable for a negligent failare to perform, to the extent of any baggage or personal belongings which the passenger may thereby lose, which are reasonably necessary to be taken by him on his jonmey, regard being had to his station in life, and to the length, purposes, and probable duration of the journey."^Judge Thompson in Boot v. New York C. S. C. Co., 28 Mo. App. 205. Again, in the same case : " Beyond the amount of baggage or money which it is reasonably necessary for the traveler to take with him, the Bleeping car company assumes no dnty of watchfulness, and is under no liability, in the case of loss or theft. It is not even a gratuitous bailee In respect of such excess of money or baggage, nor is its position even that of a warehouseman." Citing N. T. C. & H. E. K. Co. v. FraloS, 10 Otto, 24; Merrill v. Greenville, SON. Y. 594; Parmalee v. Fisher, 22 111. 212; Dibble v. Brown, 12 Ga. 217; Brock v. Gale, 14 Fla. 523; Johnson V. Stone, 11 Hamph. 419. See Hampton v. The Pullman Palace Car Co., 42 Mo. App. 134; Barrott v. Pullman Palace Car Co., 51 Fed. Rep. 797; Pullman Palace Car Co. v. Matthews, 74 Tex. 654; 12 S. W. Rep. 744. " In case of loss for which these companies are responsible," says Judge Thompson, " the measure of liability is the same as that of common carriers under similar circumstances, it includes only such property as the passenger may reasonably be supposed to carry about his person." Thompson's Carriers of Passengers, 632. And the measure of a common carrier's liability is stated by Gray, C. J., in Kinsley v. Railroad Co., 126 Mass. 56. " Although a railroad corporation Is not responsible as a com- mon carrier for an article of personal baggage kept by a passenger ex- dnsively within his own control. It is liable for the loss of such an article by the negligence of such corporation, or Its agents, or servants, and without the fault of the passenger." The following cases illustrate the principles here laid down. In Blum V, Southern, etc.. Car Company, supra, the court held the company was not liable, either as innkeeper or common carrier, for money stolen from a passenger's pocket, and said it must not only furnish a berth to its guests, bat keep a watch during the night, exclude unauthorized persons from the car and take reasonable care for preventing thefts. If loss should occur by reason of negligence in this regard, the company is responsible for such articles as are nsnally carried about his person, and such as may be deemed reasonable and necessary for traveling expenses. In Pullman Palace Car Co. v. Smith (73 111. 360), Smith brought his action against the company for $1,180, claimed to have been lost while a passenger. The money was in an inside vest pocket, and when he retired to his berth the vest was placed under his pillow, and in the morning he 406 MORE THAN OKDINAKY CARE. ing on .[330] the level would be evidence of negligence (s), but it rather seems that the duty of whistling is to be (s) Dnblin W. & W. By. Co. v. Slattery, L. B. 3 App. Gas. USi, per Lord Calms. found the vest as he had left it, but the money was gone. There was na proof of negligence on the part of the company. The court instructed the jury that if they believed from the evidence that the plaintiff had beea robbed while traveling on defendant's car, they should And for him for the amount, unless it was greater than would be a reasonable sum for a traveler to carry on his journey. The jury returned a verdict for plaintiff for $277. The court reversing judgment on this verdict said : — " It would be unreasonable to make the company responsible forthe loss of money which was never intrusted to its custody at all, of which it had no information, and which the owner had concealed on his own per- son. The exposure to the hazard of liability for losses by collusion for pretended claims of lossy where there would be no means of disproof, would make the responsibility claimed a fearful one. Appellee assumed the exclusive custody of his money, adopted his own measures for its safe-keeping by himself, and, we think, his must be the responsibility for its loss." But where there is negligence on the part of the company, liability attaches. In Diehl v. Woodruff, supra, the plaintiff sued for the loss of a watch valued at $172, a chain valued at $50, and $111.50 in money, claimed to have been stolen from him while traveling in defendant's sleeping car and got a judgment for $396. The court affirmed the judg- ment of the lower court, saying: "The evidence showed pretty con- clusively that plaintiff's watch and chain and money were stolen by an occupant of the same car in the night, and during sleeping hours. The only employes of def en dant, about the car at any time, were the conductor and porter; for a distance of 81 miles the conductor was absent, having left the train altogether, leaving no one about the car but the porter, who- was engaged chiefly in blacking boots in a room in the rear end of the car. It seems, in fact, that it was no part of the porter's duties to pro- tect the passenger against thieves, so that during the conductor's ab- sence, the sleeping car must have been a sort of paradise for pickpockets, to prowl about in at pleasure." And so in Pullman Palace Car Co. v. Gardner (Pa.), 17 Bep. 24, it was held that if a passenger on a sleeping car is robbed while asleep, and through the negligent manner in which watch has been kept by the company's employes, the company is liable. The court say: "Con- ceding that the company is not liable in this action as an innkeeper or common carrier, yet a reasonable and proper degree of care is im- posed on the company. Whether it did exercise that degree of care under the circumstances, was for the jury. The main object in taking passage on such a car, is to permit the passenger to sleep. While in that helpless SLEEPING CAR COMPANIES. 407 inferred or not inferred from the circumstance of the case (t). (t) Davey ti. L. & S. W. Ey. Co., 12 Q. gence; see Gray v. k. K. Ey. Co., 48 L. B. D. 70; Oh. V., Contrlbntory Negli- T. N. S. p. 904. condition a duty rests upon the company to provide reasonable care and precaution against the valuables of a passenger being stolen, from his bed, or from the clothes on his person. This is not the case of a robbery by force and violence, but by stealthy larceny. Unless a watchman be kept constantty in view of the center aisle of the car, larceny from a sleep- ing passenger may be committed without the thief being detected in the act." On the other hand, in a late case the facts were, in substance : plaintiff and his little boy were occupying an upper berth and plaintifi's wife and littlegirl the lower berth in the same section. At about 5 :30 o'clock in the morning plaintiff got up and went to the water closet, leaving under his pillow his pocket book containing about $675.00, which he was carrying in addition to sufficient money for all traveling expenses. He observed the negro porter and another person seated opposite his section. Soon after bis return to bis berth he discovered that his pocket book was mis- sing. Held, that he could not recover for its loss. — Wilson v. B. & O. Ey. Co., 32 Mo. App. 682, following Root v. New York C. S. C. Co., supra. In the case of Pullman Palace Car Co. v. Gay lord (Kentucky), 23 Am. Law Beg. 288), Gaylord sued to recover $800, the value of a diamond scarf pin, alleged to have been stolen from him dur- ing the night on the company's sleeping car, and which he placed, when disrobing, himself, in the receptacle, at or near the end of his berth. There was no allegation that the loss was occasioned by the negligence of defendant. Plaintiff recovered judgment. In revers- ing judgment the court referred, among other cases, to Clark v. Bums (118 Mass. 275), and Steamboat Crystal Palace v. Vanderpool (16 B. Mon. 307). In Clark v. Burns, the action was for the loss of a watch by plaintiff while occupying i stateroom of defendant's steamboat. The plaintiff, on retiriug, had put his watch in his waistcoat pocket, which he bung by the arm-holes on a hook in the stateroom. When he arose in the morning, he found his watch missing. The court held, he could not re- cover, saying, that a watch worn by a passenger on his person by day, and kept by him within reach for use at night, whether retained upon his person or placed under his pillow, or in a pocket of his clothing hanging near him, is not so intrusted to their custody and control, as to make them liable for it as common carriers. Steamboat Crystal v. Vanderpool is to the same effect. The court in Pullman Palace Car Co. v. Gaylord then says : " The resemblance of a steambqat to an inn is even greater than of a sleeping car, since it is customary for the former to provide 40S mobe: than ordinary cake. [331] As to not fencing level crossing for the protection of cattle, see Owners of Real Property, Ch. II., s. 2, and meals for Its passengers. If the rigid liability of the innkeeper is not to be extended to the owners of steamboats, common justice demands that it be not applied to the owners of sleeping cars. And we find this rule has been followed so far as the reponsibilities of the latter have been the subject of judicial inquiry." In Tracy v. Pullman Palace Car Co. (67 How. Pr. Eep. 164) , the plaintiff became entitled to a berth in a car of the defendant. He put his wallet in the pocket of his waistcoat, which he rolled up and placed under the pillow. Upon waking in the morning he found his wallet gone. The only evidence bearing upon the loss was that the wallet was there when he went to sleep and gone when he awoke in the morning. The referee who decided the case held that the above facts did not establish negli- gence on the part of the company. " While it may be conceded that these sleeping car companies owe greater duties to their customers than ordinary railroad carriers of passengers, still they can only be held liable for property lost while under the control of the passenger upon proof of some fault or negligence on their part; and from the mere fact of such loss, unaccompanied by any other proof, no presumption of negligence arises." Liability for Injuries to the Person. — While it has been held that a Bleeping car company is not liable as an innkeeper, and, it would seem, therefore, not bound to furnish accommodation for every passenger, yet, having sold the passenger a ticket, the company is bound to furnish the accommodations called for by it. In Pullman Palace Car Co. v. Taylor (65 Ind. 163), appellee purchased a ticket or check for a certain lower berth on a sleeping car of appellant, from Indianapolis to New York. While en route the car was detached from the train, and appellee was compelled to take an inferior berth in another car. The court, in affirming the judgment below in an action for damages, said, the contract made Imposed upon the appellant the obligation to furnish sleeping car accommodations for a continuous trip, from one point to another, so that appellee could go on with a continu- ous train, as he'might be bound to do on the purchase of an ordinary railroad ticket, without provision for stopping off. The appellant was bound by the contract evidenced by the check, not merely to furnish sleeping car accommodations, but to furnish the particular berth in an- other car, of equal safety, convenience and comfort. And it has been held that an action may be brought in form ex delicto for excluding a passenger from a berth which the company has assigned him, and which he has offered to pay for. — Nevin o. Pullman Palace Car Co., 106 111. 222. But where through mistake the conductor sells to a passenger a berth already reserved but notifies the passenger of the error immediately upon SLQEFING CAB GOMFAXIBS. 409 as to level crossings, as respects passengers lurossing, see Owners of Real Property, Ch. III., s. 2. discovering it and tenders another berth just as good as that first sold, the passenger has no cause of action.— Mann Boudoir Car Co., 54 Fed. Eep. 646. But the damages sought to be recovered tor the negligence of the company it Is held must be the immediate coaseqnence of such negli- gence, and not too remote. In Pullman Palace Car Co. v. Barker (4 Col. 334) owing to defendant's negligence, their sleeping car, on which a woman was a passenger, caught fire, and she was compelled to leave the car half clad, and took cold, which resulted in the suppression of her menses and a long illness. It being shown that she was menstrua- ting at the time of the accident, and that the illness was traceable to that condition, it was held that defendant was not liable in damages , therefor. The case, however, is of doubtful authority. See Proximate Cause, ante, p. 31. It has beei held that the company, having no control over the move- ments or making up of the train, is not responsible to a passenger holding a berth in its car, for a detention growing out of the delay of the train, by accident or otherwise — Bliss v. Pullman Palacp Car Co., Superior Ot. Cook Co., 16 Chicago Legal News, 338. Liability ofBaib-oad Company. — While the passenger would. It would seem, have an action agarinst the sleeping car company for injuries resulting from its negligence, he may certainly hold the railroad com- pany responsible for such injuries. — Pennsylvania Co. v. Boy, 102 U. S. 452; Thorpe v. Railroad Co., 76 N. Y. 402; Railroad Co. v. Walrath, 38 Ohio St. 461; Lemon v. Pullman Palace Car Co., 52 Fed. Rep. 262; Carpenter v. New York, etc., R. Co., 124 N. Y. 53; 26 N. E. Eep. 277. In Pennsylvania o. Roy an action was brought for injuries sustained by the falling of a berth of the sleeping car company. The court say : " For the. purpose of the contract under which the railroad company undertook to carry over its road and in view of its obligation to use only cars that were adequate for safe conveyance, the sleeping car company, its conductor and porter, were, in law, the servants and employes of the railroad company. Their negligence or the negligence of either of them as to any matters involving the safety or security of passengers, while being conveyed, was the negligence of the railroad company. The law will not permit a railroad company, engaged in the business of carrying persons, engaged for hire, through any device or arrangement of the sleeping car company, whose cars are used by the railroad company and constitute a part of its train, to evade the duty of providing proper means for the safe conveyance of those whom it has agreed to convey. It is also an immaterial circumstance that Boy, when injured, was not sitting in the particular sleeping car to which he had' been originally as- signed. His right for the time to occupy a seat in the car in which his 410 MORE THAN ORDINARY CARE. Section IX. Neglect of duties by Innkeepers. An innkeeper is not an insurer of the goods of his guest, but is liable for negligence (u), and is bound to take some- thing more than ordinary care of his guest and his guests' goods (a;). It is in his character as innkeeper that he is (u) Oayle's Case, 1 Sm. Ii. O., 5th ed. see Oxford v. Prior, 11 Weekly Bep. 6n; 102 ; Dawson v. Chamney, 6 Q. B. 164. As and as to a temporary call for refresh- to innkeeper's liability to persons com- men,t, see Bemiett v. MeUor, S T. S. 273, , ing to the Inn, hnt not to deal with him, ' (x) Campbell, s. S6. friend was riding was not, and, under tlie tacts disclosed, conld not be, questioned." In Bailroad Co. v. Walrath, supra, a similar action, the court say : " Attention is called to the fact that in Fenn. Co. v. Roy, Where the liability of the railroad company for an injury received in the car of the Fallman Palace Car Co., was asserted, Harlan, J., lays stress on the fact that the railroad company had published and circulated cards, which were in such form as to induce the belief that the sleeping car was under the management and control of the railroad company. Bat, on examina- tion of the whole opinion, we find there was no intention to place the lia- bility on such narrow ground ; and we have no hesitancy in saying that, in the absence of notice that the company will not be liable for defective ap- pliances in the sleeping car, or negligence of servants of the sleeping car company, a passenger may assume that the whole train is under one gen- eral ^management, — Thorpe v. Railway Co., 76 N. Y. 402; Kinsley v.- Railroad Co., 26 Mass. 61." That the passenger is riding upon a free pass, providing that he as- sumes the risk of accidents, does not preclude him from holding the railroad company responsible for injuries caused by its negligence, In case he has purchased and paid for the drawing-room car ticket; In Ulrich o. Railroad (108 N. Y. 80; 15 N. E. Rep. 60; 27 Daily Regis- ter, 681), Ulrich sued the company for damages tor injuries sustained and for loss of baggage by a railway collision. The defense was that he was traveling upon a free pass, by the terms of which he assumed the risk of accidents, and agreed that the company " should not be liable under any circumstances for any injury to his person, or for any loss or injury to his property while using this ticket," and that, therefore, he could not recover. On the trial In the Court of Common Fleas the eourt so held, and the complaint was dismissed. It appeared, however, that Ulrich had another ticket which be had INNKEEPERS. 411 required to exercise such diligence ; but if he ia a mere bailee (2/), or a mere lodging-house keeper (s), he would 'Only be liable for ordinary negligence. iy) Hyde v. Mersey Kav. Co., 6 T. B. Foster, Salk. 388; see Dansey v. Blchard- 389; Williams v. Gesse, 3 Bing. N. C. 819. son, 3 E. & B. 144; Holder v. Soulby, 8 (s) Bac. Ab. Inns, 0. 6; Parkhnxst v. O. B. N. S. 254. bought and paid for, entitling him to transportation in one of the draw- ing-room cars. The General Term on appeal reversed the judgment and ordered a new trial, holding that although a person riding on a free pass containing such an agreement relinquishes his rights to compensation for injuries, yet as he was accepted as a passenger In a drawing-room car on a ticket for which he had paid, the free pass giving him " no right to travel in that car, the rights and relations of the parties were changed." The plaintiff thereby has all the rights that the law gives to passengers, and having paid for a ticket he is not to be considered as one who, in consideration of a free passage, has agreed not to hold the com- pany liable for injuries. The company having made a new contract could not now ignore it. The defendant has taken money from the plaintiff for carrying him, and it has no right to say that he was a free passenger, and to ask the court to incorporate into the drawing-room ticket the pro- visions of the free pass." As to the defense that the drawing-room cars belonged to the Wagner company, the court, citing Thorpe v. Bailroad, 76 N. Y. 406), held, that as no one without leave of defendant could run cars upon its track, they must assume that the drawing-room cars were run for the benefit of defendant. See ante, p. 371. Innkeeper and Guest. — An innkeeper has been held liable to the same extent as a common carrier in respect of the personal effects of his guests. — Mason v. Thompson, 9 Pick. 280; Finkerton ». Woodward, 33 Cal. 557; Sibley v. Aldrich, 33 N. H. 553; Schoecraft v. Bailey, 26 la. 553; Hulett V, Swift, 33 N. Y. 671; Olson v. Grossman, 31 Minn. 222; Cham- berlain V. Masterton, 26 Ala. 371; Shaw v. Berry, 31 Maine, 478; Thick- stone V. Howard, 8 Blackf. 636; Burrows v. Trieber, 21 Md. 320; Wood- worth V. Morse, 18 La. Ann, 166; Norcross v. Norcross, 63 Me. 163; Coskery v. Nagle, 83 Ga. 696; 10 S. B. Sep. 491; Shultz v. Wall, 134 Pa. St. 262; 19 Atl. Rep. 742; 26 W. N. C. 61. On the other hand it has been held, and there are dicta to the effect, that innkeepers are not responsible to the same extent as common carriers ; that while the loss of the goods of the guest will be presumptive evidence of negligence on the part of the innkeeper or his servants, he may rebnt this presumption by showing that there is no negligence whatever.— Lawson Bail., § 76; Merritt v. Claghorn, 23 Vt. 177; Howe Machine Co. V. Pease, 49 Vt. 477; Johnson v. Richardson, 17 111. 302; Howtho. Frank- lin, 20 Tex. 798; Kisten v. Hilderbrand, 9 B. Mon. 72 ; Cutler v. Bonuey, 412 MORE THAN ORDINARY CARE. The fact of the loss of the goods is prima facie evidence of negligence (a). The act of God, or the Queen's ene- (a) DawBou v. Ohamne?, S Q. B. 161. 30 Mich. 259; Vance v. Throckmorton, 6 Bush, 41; Bowell ». De Wald, 2 Ind. App. 303; 28 N. E. Rep. 430. An innkeeper, it seems, is liable for losses snstalned by his guests by burglaries when unaccompanied trlth violence. — McDanielsv. Robinson, 26 Tt. 337; Woodwortb v. Morse, 18 La. Ann. 156; Lawson Bail., §76. According to some authorities he is liable for losses caused by fire, though without his fault or that of his servants. — Hulett v. Swift, 33 N. T. 571 ; Whart. on Neg., § 678, citing Mateer «. Brown, 1 Cal. 221 ; Shaw V. Berry, 31 Me. 478; Mason v. Thompson, 9 Pick. 280; Manning V. Wells, 9 Humph. 746. According to others he is not liable for losses by fires unless caused by his or his servant's negligence. — Merritt ». Claghorn, 23 Vt. 177; Cutler V. Bonney, 30 Mich. 259; Vance v. Throckmorton, 5 Bush, 41. He is liable for money stolen from his guest, though there is no evi- dence to show how or by whom it was stolen. — Dunbier v. Day, 12 Neb. 596; 41 Am. Rep. 772. He is liable for thefts committed by servants CChamberlain o. Maater- ton, 26 Ala. 371; Labold v. Southern Hotel Co., 54 Mo. App. 567); by fellow-guests and those about the Inn. — Lusk v. Belote, 22 Minn. 468; Bodwell V. Bragg, 29 la. 232; Sasseen v. Clark, 37 Ga. 242. It is no excuse that he used care in the selection of his servants (Id.) ; or that he was sick, insane or absent at the time. — Rockwell v. Proctor, 39 Ga. 105; Houser v. TuUy, 62 Pa. St. 92. He is liable for the safe-keeping of his guest's horse while in his cus- tody (Mason v. Thompson, 9 Pick. 280; Sibley u. Aldrich, 33 N. H. 553) ; abd of his cattle (Hilton v. Adams, 71 Me. 19), though he may go out to dine or lodge with a friend. — Grinnellv. Cook, 3 Hill, 485; Wharton's Innkeepers, 76. But where one left his horse with an innkeeper with no intention of stopping at the inn himself, and stopped at a relative's house, whose guest he was, the liability of the Innkeeper was held to be that of an ordinary bailee for hire only. — Healy «. Gray, 68 Me. 489 ; 28 Am. Eep. 80. But see Russell v. Fagan, 7 Del. 389 ; 8 Atl. Rep. 258. So where a person leaves goods without indicating his intention to become a guest. — Toub V. Schmidt, 15 N. 7. S. Rep. 616. And it has been held that where an innkeeper also keeps a sea bathing house separate from his inn, be is not liable for goods and clothes of his guest left there while the guests were bathing. — Minor v. Staples, 71 Me. 31; 36 Am. Rep. 318. An Innkeeper has been held liable for failing to inform his guest of the UtNEEEPEBS. 413 mies, is, as in the case of carriers at common law, a good defense (6). So, also, is the contributory negligence of the plaintiff (c). (&) Richmond v. Smith, S B, & 0. 9; mond «. Smith, 8 B. A O. 9; Kent v. and so Is " Inevitable accident," see Shackard, 2 B. & A. 803. The gnest most Wharton, b. 678, £53, and as to act of himself have used ordinary care, see God, see ante, p. 336 . Cashill v. Wright, 6 E. & B. 891; see also (c) Farnworth v, Packwood, 1 Staxk. Oppenhelm v. White Lion Hotel Co., L. 349; BnrgesB vi Clements, 4 U. & S. 306; B. 6 C. F. 616; 10 L. J. 0. F. 231. Aimlstead e. Fuller, 17 Q. B. 261; Bich- prevalence of small-pox in bis inn, wheieby the guest contracted the disease— Gilbert v. Hofiman, 66 Is. 205; 23 K. W. Bep. 632. An innkeeper is not liable for the loss of goods which the guest has taken into his exclusive possession and pat into an improper place with- out the knowledge of the innkeeper (Fuller v. Coats, 18 Ohio St. US) ; or committed to the custody of another (Houser v. Tully, 62 Pa. St. 92) ; or for a theft committed by the guest's servants, or a companion of the guest. — Gile v. Libby, 36 Barb. 90 ; Olson v. Grossman, 31 Minn. 222. " The guest may retain personal custody of his goods within the inn, as his trunk and Its contents, his wearing apparel and other art:^cles in his room, and any jewelry or valuables carried or worn about his person, without discharging tiie innkeeper from responsibility." — Jalie v. Car- dinal, 35' Wis. 126, post, p. 336. Followed in Fay v. Pacific Imp. Co. (Cal.), 26 Pac. Rep. 1099. When the relation of innkeeper and guest has ceased, the liability of the innkeeper for the personal effects of his guest is that of an ordinary bailee.— O'Brien ». Vaili, 22 Fla. 627; 1 So. Eep. 137; SchefEer v. Corson (S. D.), 68 N. W. Eep. 555; Murray v. Marshall, 9 Colo. 482; 13 Pac. Bep. 589 ; Taylor v. Downey (Michigan), 62 N. W. Bep. 716. Where a guest paid his bill and had his name checked from the register, and went to an adjoining town for the day's business, intending to return at night, it was held that the innkeeper was not liable for the loss of a valise left at the inn during that day, the relation of host and guest hav- ing been terminated. — Miller v. Peeples, 60 Miss. 819. So where a guest at a hotel left a valise in the office of the hotel without calling attention to it, and the clerk, not knowing who the owner was, took it into a room where baggage was kept, it was held that the landlord was a naked depositary, liable only for gross negligence. — Stewart v. Heard, 70 Ga. 449. Where a guest with the landlord's knowledge paid his bill and depart- ing left valuables with the clerk to be kept without compensation until called for, and the clerk embezzled the same, the innkeeper was held not liable for the loss.-J- Whitenlore v. Harldson, 2 Lea, 812. And where money was deposited with the clerk of a hotel by one who left the hotel, and afterwards returned, and was assigned a room, the 414 MORE THAN OEDINARY CAKE. The innkeeper is liable for the theft of his servant from a guest at his inn (d), but not for burglary or robbery with ((2) See Morgan v. Bavey, 6 H. & N. 2(i5 ; and see Cayle's Caee, 8 Co. 33. landlord was held not liable for the embezzlement of the money by the clerk on the ground that the owner was not a guest at the time he made the deposit.— Arcade Hotel Co. v. Wiatt, 44 Ohio St. 32 ; 15 Law Bull. 97. A guest has a reasonable time after the payment of bis bill in which to remove his baggage. — Maxwell ». Gerard, 32 N. Y. S. Eep. 849. But the extraordinary liability of innkeeper does not arise as to goods sub- sequently delivered. — Wear v. Gleason, 62 Ark. 264; 12 S. W. Bep. 75^. Upon this subject, in the case of Glenn v. Jackson (93 Ala. 342; 9 So. Bep. 2S9), the court said: " If a traveler, intending to become a guest at a hotel, meets a porter of the hotel at the depot or other usual stop- ping places for travelers, and intrusts his baggage wilh the porter of the hotel, whose duty it is to deliver the baggage at the depot, the rela- tion is continued until the delivery at the designated place. But these principles' of law afford no protection to one who intrusts his baggage to a mere servant of the hotel not authorized to receive baggage, vrith directions to him to check it for safe-keeping until his return, then pays ' his bill to the clerk, and terminat,e8 his relation as guest, and gives no notice to the innkeeper or clerk that he expects to return, and that he has left his baggage to be taken care of until his return." But the liability of the innkeeper may attach before one has entered the hotel or been assigned a room. If he undertakes to carry persons and their baggage from the railroad station to the inn, he becomes an insurer of the passenger's baggage during the transit. — Sasseen v. Clark, 37 Ga. 242, followed in Coskery v. Nagle, 83 Ga. 696; 10 S. E. Kep. 491; Dickinsons. Winchester, 4 Cush. 114; Moloney v. Bacon, 33 Mo. App. 501. Coraributory Negligence. — The guest may be guilty of such negligence himself as will defeat an action by him for loss or injury to his personal efEects.— Shultz v. Wall, 134 Pa. St. 262; 19 Atl. Eep. 742; 26 W. N. C. Eep. 51, following Walsh v. Torterfleld, 87 Pa. St. 376. Where one kept in his room a large amount of money in gold coin instead of leaving It at the office of the hotel, as he knew the rules of the Inn required, and It was stolen, it was held that he could not recover in an action against the landlord for the loss. — Purvis v. Coleman, 21 N. Y. 111. Where one carelessly hung his overcoat in an open hall of an inn, instead of placing it in the coat-room which he knew was provided for the purpose (Fuller v. Coates., 18 Ohio St. 303), or intrusted his effects to another (Houser v. Tully, 62 Pa. St. 92), the landlord was held not liable for the loss. But failure on the part of the guest to keep his room constantly locked will not constitute such negligence as will prevent him from recovering INNKEEPEKS. 415 [332] violence, it is said, where he can show that the force which occasioned the loss was truly irresistible (e). (e) Jones on Bailments, 96. VarloaB his guest's goods by burglary, &o.. In other authorities are cited to prove that Wharton, s. 677, but they do not appear an innkeeper is not liable for a loss of to bear out the text. for the loss of his efEects (Batterson v. Vogel, 10 Mo. App. 235) ; nor will an omission to inform the innkeeper that there is no lock on his door. — Lanier o. Youngblood, 73 Ala. 587. Where plaintiff had a snm of $500 in money and a gold watch and chain stolen from his room at night, he having failed to lock or bolt his door, it was held that since no notice of depositing such articles with the innkeeper was given, and no regulation about fastening doors was shown, the guest was not necessarily negligent. — Murchison v. Sergent, 69 Ga. 206; 47 Am. Rep. 754. Where a guest closed and locked his room door but failed to discover a bolt about six inches fro^ the top of the door to which his attention was not called, it was held that he was not guilty of contributory negli- gence, robbers having entered while he was asleep and carried away his watch, chain, and money. — Spring v. Hager, 145 Mass. 186; 13 N. E. Eep. 479. In the case of Smith v. Wilson (36 Minn. 334; 31 N. W. Rep. 177), the court said: "The fact that, sleeping in a room at the hotel occupied only by himself, that plaintiff retained the sum of $495.00 of money secured in a belt around his body, was not such conduct as should be deemed negligence as a matter of law, although the bolt of the door to his room could be opened with a wire from the outside." Consenting to occupy a room with another guest is not contributory negligence on the part of the plaintiff . — Olson v. Grossman, 31 Minn. 222. So consenting to use a room only until the arrival of a guest who had engaged it entitles one to have his luggage and jewelry in the room properly cared for during the day and after the arrival of the guest en- titled to occupy It.— Medawar v. Grand Hotel Co. [1891], 2 Q. B. 11. And an innkeeper's liability has been said to be increased rather than diminished by the fact that the guest has got too drunk at the bar to take care of himself.— Rubenstein v. Crnlkshanks, 54 Mich. 199; 52 Am. Rep. 806; 19 N. W. Rep. 954. Intoxication of a guest is no excuse for his negligence.— Schnltz t>. Wall, 134 Pa. St. 262; 19 Atl. Rep. 742; 26 W. N. C. 51, following Walsh v. Porterfleld, 87 Pa. St. 376. Statutory Liability. — Statutes exist in the various States limiting the liability of the innkeeper. They provide generally that the innkeeper shall not be liable for the loss of certain articles of value, money, jewelry and the like, unless the guest deposits them with the landlord for safe keeping. Such statutes must be strictly complied with to exonerate the innkeeper. 416 MORE THAN ORDINARY CARE. [333] The liability of the innkeeper, as such, will con- tinue, it seems, for some reasonable time after the departure Where a statnte provided that the Innkeeper must keep posted on his doors and at other public places written or printed notices that he should not be liable, etc., it was held that he must post notices on the door of each guest chamber, and posting, notice on a single door was not suffi- cient (Lanier v. Toungblood, 73 Ala. 687), and his failure to do so was not excused by the fact that the guest had actual notice. — Id. A notice printed at the head of the register, or given orally, will not do under the Minnesota statute.— Gen. St. 1878, ch. 124, §§21, 22; Olson V. Grossman, 31 Minn. 222. And it is no defense that the guest had read a copy of the statute upon the register, no copy h&vlng been posted in his bedroom. — Batterson v. Vogel, 8 Mo, App. 24. The question whether statutory notices are properly posted is for the jury to determine. — Chamberlain v. West, 37 Minn. 64; 33 N. W. Eep. 114; Shultz V. Wall, 134 Pa. St. 262; 19 Atl. Eep. 742. While a strict compliafice with the provisions of snch a statute is required to relieve the innkeeper of liability, a similar obligation rests upon the guest where the statute Imposes upon him certain duties. Where a statute provided that no innkeeper should be liable for the loss of any merchandise for sale or sample belonging to the guest, unless the guest should give him written notice of having such merchandise in his possession after entering the inn, and that the innkeeper should not be compelled to receive guests with such merchandise in their possession, it was held that notice in writing was absolutely necessary to fix the inn- keeper's responsibility, and he waived nothing by admitting a gnest knowing that he had merchandise for sale or sample in his possession. — Fisher B. Kelsey, IS Ted. Eep. 71. ' The obligation of the guest to notify the innkeeper that he has prop- erty of extraordinary value, has been held not to attach to a peddler with his pack, or with the usual appurtenances of his business. — Eabenstein V. Crulks^anks, 64 Mich. 119; 19 N. W. Eep. 954; 52 Am. Bep. 806. There has been some confusion In the construcitlon of statutes limiting the liability of the Innkeeper for the loss of the personal effects of the guest. The language of the New Tork statute, "money, jewelry or ornaments" (N. T. Laws, 1855, Ch. 421, p. 774; N. Y. Rev. Stats., p. 1282), Is held not to include a watch and chain within its provisions (Eamely?). Leland, 43 N. T. 539), as well as the language of the Maryland statute (Rev. Code, 1878, art. 67, Ch. 17 §§ 5 and 6), "money, jewelry and plate," (Maltby v. Chapman, 25 Md. 313). But the language of the Wisconsin statute (Rev. Stat. Wis. 1878, p. 303, § 1725), "money, jewelry and articles of gold and silver manufacture and the like," has been held to include a watch and chain. — Stewart v. Parsons, 24 Wis. 241. An inferior court in Ohio, has held that the language of the Ohio statute (Eev. Stat. 447), "money, bank-notes, jewelry and articles of gold INNKEEPERS. 417 of a [334] guest who has left his goods to be sent for with the landlord's consent (/) ; and it is certain that his ( / ) See per Blown, 0. J. in Adams v. Clem, 41 6a. 67. and silver mannfactnre," Included a gold watch and chain, gold locket and $70 in money. — Lang v. Arcade Hotel Co., Ham. Co. Com. Pleas, 12 Caw Ball. 250. (See abstract of Mr. Jenney's brief in 12 Law Bull. 253.) Statutes regulating the liability of innkeepers for goods belonging to guests have been sustained in Fisher v. Kelsey, 7 S. Ct. Rep, 929; Becker v. Hayfies, 29 Fed. Eep. 411; Fay v. Pacific Imp. Co. (Cal.), 26 Pac. Eep. 1099; 28 Pac. Eep. 943; 93 Cal. 253. Who Is a Guest? — " If a person puts up at an inn as a traveler, and is received as such, the relation of innkeeper and guest is immediately established, with all its rights and liabilities; and, once established, neither duration of time, nor a special agreement In respect to price, necessarily changes such relation, vrhich continues so long as the per- son so received sojourns as a traveler, which is also presumed until the contrary appears." — Eoss v. Mellin, 36 Minn. 421; 32 N. W. Eep. 172. And In other cases it has been expressly held, that the length of time one may stay at an Inn (Berkshire "Woolen Co. v. Procter, 7 Cush. 417; Magee V. Pacific Imp. Co., 98 Cal. 678; 33 Pac. Rep. 772), or the payment of a stipulated sum per week (Norcross v. !N^orcross, 53 Me. 163; Pinkerton o. Woodward, 33 Cal. 557), does not necessarily change the relation of innkeeper and guest. Carpenter, J., said in "Walling v. Potter (35 Conn. 183; 7 Am. Law Beg. 618), one might be a guest '■ though a townsman and neighbor." Bat where one went to a hotel near his residence about midnight, with a disreputable woman, and registered as man and wife, and delivered to the clerk money for safe keeping before retiring, it was held that the landlord was not liable for its embezzlement by the clerk, the relation of innkeeper and guest not having been established.^ Curtis ». Murphy, 63 Wis. 4; B3 Am. Eep. 242; 22 N. W. Eep. 825; 13 Law Bull. 488. In another case already referred to (Arcade Hotel Co. v. Wiatt, 44 Ohio St. 32; 15 Law Bnll. 97), the keeper of a gambling house closed his business at two o'clock in the morning, and went to a hotel in the same city where he left with the clerk a large sum of money, receiving his receipt therefor. He said he did not desire a room at the time and none was assigned him. He did not register. He left the hotel, returned after a few hours and was assigned a room. The clerk absconded with the money. The company was held not liable. A transient visitor is not the less a guest because he makes a special contract for board at reduced rates.— Beale v. Posey, 72 Ala. 323. And it has been held that an army officer boarding with his family upon fixed terms at a hotel In the city in which he is stationed, Is a guest.— Hancock v. Rand, 94 N. Y. 1; 46 Am. Rep. 112. 27 418 MORE THAN ORDINARY CARE. liability continues during the temporary absence of his guest (g). (ff) Bather v. Day, 2 H. & 0. U. But a railway conductor, who with 6ther fellow conductors, rented a room In a hotel at one end of his route, where they could sleep, and make up accounts, and receive their friends, has been held not a guest. — Horner v. Harvey, S. C. New Mexico, 5 Pac. Rep. ; 14 Law Bull. 397. So far as any uniformity in the decisions on this subject is concerned, the question- as to who is a guest might as well be left to the jury (Jalie V. Cardinal, 35 Wis. 118; supra, p. 413) as to the court. Miscellaneous. — Boarding-bouse keepers are not held to the same de- gree of care as innkeepers. In one case it is laid down that they must use such care at least of the boarder's personal efEects as a prudent per- son would take of his own property. (Smith o. Read, 62 How. Pr. N. T. 14; 6 Daly, 33). In another it was held that they were not responsible for the safe keeping of the boarder's personal effects unless there was proof of gross negligence. — Jefiords v. Crump, 12 Phil. 600. Where an inmate, of a lodging house leaves the door of his room unlocked, knowing that the house could be entered by persons unnoticed, he cannot recover from the keeper of the house for articles stolen from the room. — Swann v. Smith, 14 Daly, 114. In one case a restaurant keeper was held liable for the loss of an over- coat of a customer, who, before dining, hung it on one of the hooks intended for that purpose. , (Kopper*. Willis, 9 Daly, N. Y. 460.) But in another case a hotel-keeper was held not liable for the loss of a coat of a friend of a guest invited to dine with him, which he had leff on a chair in the hall way. (Gastenhoffer v. Clair, 10 Daly, 265.) A public caterer has been held liable in damages for supplying guests with unwliolesome food.— Bishop V. Weber, 139 Mass. 411; 1 N. B. Rep. 154. In Gilbert v. Hoffman (66 la. 205; 65 Am. Rep. 263; 23 N. W. Kep. 632, noted supra), it was held that a hotel-keeper who with knowledge of the prevalence of small-pox in his hotel, keeps it open for business and permits a person to become a guest, without informing him of the pres- ence of the disease, will be liable for any damages caused by the guest's contracting the disease without any contributory negligence on his part; that the keeping of a hotel open for business, under such circumstances, is, in effect, a representation to travelers that It is a reasonably safe place at which to stop, and one who acts on such representation and is injured because of its untruth, cannot be precluded from recovering on the ground of contributory negligence In not making inquiries as to the truth of a rumor that there was small-pox in the house. (See Smith «. Baker, U. S. C. C. D. N. Y., 12 Law Bull. 104, in which it was held that a guest or boarder maybe h^d liable for negligently spreading a contagious disease in a hotel or boarding-house.) PHYSICIANS AND SURGEONS. 419 [335] The 26 & 27 Vict. c. 41, s. 1, enacts that no inn- keeper shall be liable to make good to any guest any loss of or [336] injury to, goods or property brought to his inn (A) to a greater amount than the sum of £30, except in the follow- [337] ing cases: (1) where such goods or property shall have been stolen, or lost or in- jured, through the willful act, default or neglect of such -innkeeper, or any servant in his employ; (2) where such goods or property shall have been deposited expressly for safe custody with such innkeeper (i). [338] Section X. Neglect of duties by Physicians, i&c. It cannot be predicated of any act that it is per se negli- gence; it is only so if it is a breach of duty (A). The first question therefore is, what is the duty which the person had to perform? Some persons have more difficult duties to perform than others. If they neglect those duties they are the more to blame, because they are' bound to bring more skill and care to their execution ; but, on the other hand, the duties being more difficult, they may more easily (A) Not being a horse or other live be refuses to receive the goods for safe animal, or any gear appertaining custody, or by a. 3, if be does not canse a thereto, or any carriage. copy of the Ist section of the act to be (t) There is a proviso that the inn- pnt np in the inn. Such copy shonld be keeper may require tbe goods to be de- a correct copy, see Spice t>. Bacon, L. B. posited in a sealed box, and by s. 2 he is 2 Ex. D. 463 ; O. A. ; 46 L. J. £z. 713. not entitled to the beneflt of the act if (it) As we have seen, ante, pp. 2, 3. In Davis v. Gay (111 Mass. 531; 6 N. E. Bep. 649), It was held that the owner of an apartment hotel is not an innholder, and is not liable to a tenant occapying a snite of rooms in the hotel for the loss of personal property stored in a general tmnk-room in the hotel by the tenant, where tbe owner of the hotel was not guilty of gross negligence and where there was no agreement between the parties as to any compensation for the storage, none demanded and none paid. 420 MOBB THAN OSDINABY CARE. fail notwithstanding the atmost care. When due allowance has been made for the difficalty of performing the duty, any negligence which has prevented its performance becomes of a grave character, because by undertaking to perform the difficult duty the performer has undertaken to use superior care and skill. The question is has the high duty which has been undertaken been reasonably fulfilled (If)? It is also to be borne in mind that in the case of medical men not only is the duty difficult, but the consequences of neg- lect may be disastrous. It was observed by Lord Ellen- borough that " more than an ordinary degree of skill was necessary for a surgeon who undertakes to perform surgi- cal operations, which is shown by the case in Wilson, {m); s omething more than the farrier who undertakes to cure a horse" (n). Physicians could not at common-law recover their fees (o) unless there wad an undoubted special contract {p). But now by the 31st section of the 21 & 22 Vict. c. 90, they can sue, and they need not prove any contract (q). A [339] surgeon, or a physician acting as such, might always sue for his fees (r). It is said that a physician or sui^on who acts gratui- tously is only liable for gross negligence. By the Eoman law the undertaking of the performauce of something was called " mandatum," and it would be immaterial that it was done gratuitously, for the Roman law said, if you under- take to do a thing you must take ordinary care about the (2) Beeante, Oh. I. (?) Gibbon v. Badd, S2 L. J. Ex. 182. (!»} Slater V. Baker, 2 WUs. 359 Any college of physicians may, however, (n) Seaie v. Prentice, S East, 352. make by-laws restraining the members (o) Chorley v. Bolcot, i 1. E. 317. from saing, (p) Attorney-General ». Royal Ool" , (r) Battersby c. liawrenoe, Oar. & legeolFhysicians, SOL. J.Ch. 737. Mars. 277. (n) A Teterinary surgeon Is not required to use extraordinary diligence or the highest degree of skill (Barney v. Plnkham, 29 Neb. 850, 45 N, W. Bep. 694); but he is responsible for negligence. — Boom o. B«ed, 69 Hun, 426; 23 N. Y. S. Bep. 131. PHYSICIANS AND SURGEONS. 421 doing of it (s). The English law, on the other hand, says that in consideration of my trusting you with the doing of the thing you impliedly promise me to do it, and so you create a duty to do it (t), and you must take ordinary care at the least. So that both the Eoman arid English laws say that oirdinary care must be taken in the case of gra- tuitous mandate, or, in other words, that a physician acting gratuitously is liable for ordinary negligence, at the least. But it has been felt that a physician acting gratuitously is still a person who professes to use skill, and that if he does not exercise the skill which he ought to have he is guilty of a grave breach of his duty; and because it is a general rule that a person who is unpaid is not liable except for gross negligence, lawyers have called this want of skill, gross negligence ; and so it has come to be said that a physician who acts gratuitously is only liable for gross negligence, whereas he is liable for showing want of skill. In truth, the word " gross" does not here mean anything more than that it would be ordinary negligence in another person, but that, in a person who should be skillful, ordi- nary negligence may be called " gross." A surgeon is not an actual insurer ; he is only bound to display sufficient skill and knowledge in his prof ession (u). He does not undertake to pierform a cure, "or even to use [340] the highest possible skill, but a competent and proper degree of skill (aj). An unqualified person who acts as a doctor is of course (g) Wbarton, s. i93 ; Camp., s. 8. ported to have said that medical gen- • (0 Ooggs V. Bernard, 1 Sm. L. 0. 177. tlemen who give their servloea gratni- («) Per Tlndall, C. J. Hanbe ». tonsly were not to be made liable for Hooper, 7 O. & F. 81. negligence tor which they were not (a:) Lamphler «. Phipos, 8 O. & P. 476; personally responsibly. . (Naraes gave Elch V. Fierpont, 3 F. & F. 35. In a case too hot a bath to a patient in a hOB- at SUi Priat, Perionowskl v. Freeman, pital) ; [see infira]. 4 F. & F. 982, Ooclcbnm, O. J., Is re- (x) The measnre of skill which a physician is bound to exercise is not a&ected by his refusal of a proffer of assistance from other physicians. — Potter c. Warner, 91 Pa. St. 362; 36 Am. Rep. 668. 422 MORE THAN ORDINARY CARE. equally bound to bring competent skill to tbe performance of the duty which he has undertaken (y). The cases in vvhich mere negligence has been established against prof essional persons, such as solicitors, doctors, &c., do not appear to be very numerous, and two reasons may be given for this. In the first place, the taking of care is almost their raison d'etre, while to many other persons the taking of care may be an impediment to their business ; and in the second place, and as a consequence from the above-mentioned reason, when they are negligent, such negligence amounts in general to fraud or intentional neg- (y) Ruddock V. Lowe, 4 F. & F. 519 ; Jones v. Fay, ib. 535 ; [iee infra\. {y) A non-expert is liable for gross negligence. " But if by forcing himself into a case he exclndes a competent physician he is liable for culpa levis or the lack of the diligence of a epeciajist, — Whart on Neg., § 732, citing Hood v. Grimes, 13 B. Mon. 188; Baddock v. Lowe, 4 F. &F. 519. In De May v. Roberts (46 Mich. 160; 41 Am. Rep. 164), it was held that " when a physician takes an unprofessional man with him to attend a confinement case when no real necessity exists for the latter's assistance, both are liable in damages to the woman, and it makes no difference that the patient or her husband supposed at the time that the intruder was a medical man, and therefore submitted without objection to his presence." Physicians and Surgeons. — In England a physician could not prior to the statutes 21 and 22 Yict., Ch. 90, § 31, maintain an action for his fees except upon an express contract (Chorley v. Bolcot, 4 T. R. 317; Veitoh V. Russell, 3 Gale & D. 198) ; but a surgeon could. — Battersby v. Lawrence, Car. & M. 277. In this country physicians and surgeons may sue for fees (Shearman & Bedf. on Neg., § 431 ; Judah v. McNamee, 3 Blackf . 269) ; and for serv- Tices of students in attendance upon their patients. — People v. Monroe, 4 "Wend. 200. But if they do not possess the requisite skill (LangqU v. Fromer, 2 Fhila. Rep. 17), or practice without a license (Adams v. Stewart, 5 Harr. 144; Bower v. Smith, 8 Ga. 74), or without a degree (Holmes v. Halde, 74 Me. 28), they can not in general recover for services rendered. Liability. — They are liable for Injuries resulting from want of ordi- nary care and skill in the treatment of patients. — Langdon v. Humphrey, 9 Conn. 209 ; Howard v . Grover, 28 Me. 97 ; Patten v. Wiggin, SI Me. 594 ; Craig V. Chambers, 17 Ohio St. 253; Graham v. Gautier^ 21 Tex. Ill; PHYSICIANS AND SURGEONS. 423 [341] lect. In the case of doctors such matters have become the subject of investigation in the criminal courts where death has ensued (z). (2) See B. D. St. John Long, 4 C. & P. in Rnssell on Crimes, Stii ed. vol. i, p. 398, and the rest of the cases collected 664, et seq. McCanless v McWha, 22 Fa. St. 261; Leighton v, Sargent, 27 N. H. 160; Gallagher t;. Thompson, Wright 466; West v. Martin, 31 Mo. 375; Barnes V. Means, 82 111. 379; Hitchcock v. Burgett, 38 Mich. 501; Hewitt v. Eisenbairt, 38 Neb. 794; 55 N. W. Rep. 252; State v. Housekeeper, 70 Md. 162; 16 Atl. Eep. 382; Muoci v. Houghton (Iowa), 57 N. W. Rep. 305; Becker v. Janinski, 27 Abb. N. C. 45; 15 N. Y. S. Rep. 675; Rowe v. Lent, 62 Hun, 621; 17 N. Y. S.Rep. 131; Ayres v. Russell, 60 Hun, 282; 3N. Y. S. Rep. 338; Beck v. The German Klinik, 78 la. 696; 43 N. W. Rep. 617; Lewis V. DwineU, 84 Me. 497; 24 Atl. Rep. 945. Whether they act gratuitously or not. — Nevins b. Lowe, 40 HI. 209; Jones V. Angell, 95 Ind. 376. They do not, however, insure a perfect cure. — O'Hara ». Wells, 14 Neb. 403; Patten v. Wlggin, 51 Me. 596; Graham v. Gautier, 21 Tex. Ill; McCandless v. McWha, 22 Pa. St. 261; Vanhooser v. BerghofE, 90 Mo. 487. Nor do they undertake to use the highest degree of skill (Lamphier v. Pliipos, 8 C. &P. 475), not more than the ordinary skill that is possessed by others in the profession. — Smothers v. Hawks, 34 la. 286 ; Howard v. Grover, 28 Me. 97. They undertake that they will exercise a reasonable diligence and skill.— Shearman & Redfleld on Neg., § 433. That is all the law implies from the contract of service. — Patten v. Wiggln, 51 Me. 594; Reynolds v. Graves, 3 Wis. 316; Clayford o. Wil- bur, 86 Me. 413; 29 Atl. Rep. 1117; Jones ». Burtis, 88 Wis. 478; 60 N. W. Rep, 785. Accordingly, an instruction that a physician should employ snch skill " as is ordinarily exercised by thoroughly educated physicians and sur- geons " (Smothers v. Hawks, 34 la. 286), or " such skill as is ordinarily exercised by educated physicians " (Hitchcock v. Burgett, 38 Mich. 501), has been held erroneous. See Peck v. Hutchinson, 88 la. 320; 55 N. W. Rep. 513. But an instruction that ordinary skill is " the skill which a surgeon would, under the circumstances of the case, reasonably use in treating the ca^," is not erroneous — Boon v. Murphy, 108 N. C. 187; 12 S. E. Rep. 1032. They undertake to use their best judgment in the treatment of cases. For honest errors of judgment in cases affording reasonable grounds for a difEerence of opinion, they are not liable.— Patten v. Wlggin, 51 Me. 594; TefEt v. WUcox, 6 Kan. 46; Williams v. Le Bar (Pa.), 21 Atl. Rep. 625; Brown v. Purdy, 54 N. Y. Super. Ct. 109. 424 MORE THAN OBDINABT CASK. [342] A medical man having once undertaken a case cannot desert it without a reasonable cause, just as a solic- " Ordinary good judgment," said the court in Leighton ;;. Sargent (27 N. H. 472), ■' is necessarily implied in a physician of ordinary skill, and If such share of judgment is fairly exercised, any risk from mere errors and mistakes is upon the employer alone." But if the mistake is so gross as to indicate a lack of ordinary skill and diligence, the physician will be liable. — West v. Martin, 31 Mo. 375. Criminal LiaMlitg. — When a physician acts in good faith, and to the best of his ability, it has been held that he is not criminally liable for the death of a patient caused by the medicine he administers. — State v. Schultz, 58 la. 628; 39 Am. Rep. 187. See Commonwealth v. Thompson, 6 Mass. 134. Itis otherwise when he acts recklessly and in total disregard of approved methods of treatment. In a recent case (Commonwealth v. Fierce, S. J. C. Mass., 12 Law Bull. 292), where a physician caused the death of a patient by the application of kerosene oil — the patient haying been covered with flannel saturated with kerosene oil for two or three days — a conviction of manslaughter was sustained. The court said : " The defendant relies on the case of Commonwealth v. Thompson, 6 Mass. 134, that to constitute man- slaughter, the killing must have been the consequence of some unlawful act. If this means that the killing must be the consequence of an act Which is unlawful for independent reason apart from its Ukehood to kill, it is wrong. Such may once have been the law ; but for along time it has been just as fully, and latterly, we may add, much more willingly recog- nized that a man may commit murder or manslaughter by doing other- wise lawful acts recklessly, as that he may by doing acts unlawfully, for independent reason from which death accidentally ensues." Standard of Skill.—, In determining what is reasonable skill and care to be exercised by the physician or surgeon, it is not material to which school of practice he belongs (Corsi v. Maretzk, 4 E. D. Smith, 1; Bowman v. Wood, 1 Greene (la,), 441; Fatten v, Wiggin, 61 Me. 597), for the law does not favor one system more than another. But it is ex- pected that he shall use the average care and skill possessed by the pro- fession of that school. — Shearman & Bedfield on Neg., § 437. See Force o. Gregory, 63 Conn. 167; 27 Atl. Bep. 1116. And this remains true whether the person be a clairvoyant (ITelson o. Harrington, 72 Wis. 591; 40 N. W, Rep. 228), or a Christian scientist.— Wheeler v. Sawyer (Maine), 15 Atl. Rep. 67. This standard may vary in different localities and at different times, it may vary with the character of the disease, as well as the temperature of the patient. A physician or surgeon living in the country or an unsettled district, is not usually as skilled as one living in a large city or populous district. The latter has better opportunities for observation, and better facilities FHT8ICIANS AND SURGEONS. 425 itor [343] cannot without good cause aljandon the suit of his client (a). (o) "Shearman on Negligence," a. 441; see Hoby v. Bnilt, 3 B. & Aid. 349 (solicitor abandoning case). for Obtaining a knowledge of the theory and practice of medicine than the former. Consequently the standard of care in his case is higher than that of the conntry practitioner. And so it may be said generally that this standard may vary in different sections of the country according to the advantages afforded for acquiring a knowledge of the practice of the profession. The rule is well stated in Small v. Howard (128 Mass. 136, 35 Am. Bep. 363), where it ia held that " a physician is bound to pos- sess the ordinary skUI and experience of his profession generally at the time in similar localities and with similar opportunities for experience." It is not enough, therefore, that the physician must exercise the skill ordinarily possessed by those in the locality, " for there might be but few practicing in the given locality, all of whom might be quacks, igno- rant pretenders to knowledge not possessed by them." — Gramm v. Boener, 56 Ind. 601. Since medical science is all the while progressing, and new and valu- able discoveries being made, in deterouning the measure of skiU to be exercised by the physician, regard must be had to the advanced state of the profession at the time — McCandless v. McWha, 22 Pa. St. 261; Small V. Howard, 128 Mass. 135. But this does not involve a knowledge of the most approved theories and such as are adopted by the most skillful practitioners. A charge to the jury, " that If the plaintiff exercised all the knowledge and skill to which the art had, at that time, advanced," was held to require too high a standard of professional duty. — Simonds v. Henry, 89 Me. 155. It is snfflcicent if the course of treatment is such as is adopted at the time by the average practitioner. — TefEt v. Wilcox, 6 Kan. 62. From the fact that other physicians might have been successful or possibly exercised better judgment it does not follow that appellant is liable in damages.— Langford v. Jones, IS Ore. 307; 22 Fac. Rep. 1069. In the important case of Jackson v. Bnrnham (1 Colo. App. 237; 28 Pac. Kep. 260; 39 Pac. Bep. 577), the court said, •'* • » by hold- ing himself out to the world as a physician and surgeon, he impliedly contracts that he possesses a reasonable degree of skill, learning, and experience which good physicians and surgeons of ordinary ability and skill, practicing In similar localities, ordinarily possess; that, in judging of the proper degree of skill in any given case, regard is to be had to the advanced state of the profession at the time; that he will use his skill with ordinary care and diligence according to the circumstances of the case, and is liable only for ordinary neglect; that he does not undertake to warrant a cure, but only to exercise a reasonable amount of knowl- 426 MOKE THAN ORDINARY CARE. [344] Wher^ the ground for the allegation of negli- gence is a general want of that skill which a medical man undertakes to possess, the defendant may give evidence of his genferal skill ; but where there is no doubt of his general « edge, skill and care in diagnosing the case and in applying the reme- dies."— See Gates V. Fleischer, 67 Wis. 604; 30 N. W. Rep. 674; Nelson V. Harrington, 72 Wis. 591 ; 40 N. W. Eep. 228. The standard of care may again be affected by the character of the disease aad the temperament of the patient. — Shearman & Redf , on Neg., §§ 438, 489. And whine the physician is bound to know the consequences of admin- istering an anaesthetic, and its effect upon the system, it is held that he is not responsible for the consequences of administering cliloroform to a patient of peculiar temperament if such peculiarity was unknown to him. — Boyle v, Winslow, 6 Phila. (Pa.). Where a surgeon advised the bathing of plaintifi's fractured arm with a decoction of wormwood and vinegar, which treatment was condemned by expert testimony, it was held that plaintiff could not recover dama- ges.— Winner V. Lathrop, 67 Hun, 511; 22 N. Y. S. Eep. 516. Contributory Negligence. — The patent may be barred of a recovery in an action for malpractice when he himself is negligent. — Geiselman< d. Scott, 26 Ohio St. 86; Chamberlin v. Porter, 9 Minn. 260; McCandless V. McWha, 22 Pa. St. 26; Young v. Mason, 8 Ind. App. 264; 35 N. E. Rep. 521; Becker o. Janiski, 27 Abb, N. C. 45; 15 N. Y. S. Rep. 675; Davis v. Spicer, 27 Mo. App. 279; Swanson v. French (Iowa), 61 N. W. Rep. 407. When he fails to carry out the instructions of his physician (Geisel- man v. Scott, 25 Ohio St. 87; Du Bois v. Becker, 130 N. Y. 325; 29 N. E. Rep. 313, affirming 4 N. Y. S. Rep. 768; Lower v. Franks, 115 Ind. 334; 17 N. E. Rep. 630), or those in charge of him are negligent. — Potter v. Warner, 91 Pa. St. 362. ^ ' But if the negligence of the physician is the sole cause of the injury, the patient ma^, notwithstanding his own negligence, recover. — Hibbard V. Thompson, 109 Mass. 289. And though the disease is aggravated by the improper treatment of those in charge (Wilson v. Howard, 39 Vt. 447), and though the case is given over to another who might have dis- covered the mistake by the exercise of care (Hathorn v. Richmond, 48 Vt. 559), a recovery may be had for the negligence of the physician; but in the former case the fact of improper treatment by those in charge may be given in evidence in mitigation of damages. See Sanderson v. Holland 39 Mo. App. 233. Miscellaneous. — In an action against a firm of physicians for mal- practice, the firm was held liable for the act of one causing the Injury. — Whittaker v Collins, 33 Alb. L. Jour. Abst. ; Hyme v. Brwin, 23 S. C. 226; 65 Am. Eep. 16. ATTORNEYS. 427 skill, and the ground for the allegation of negligence is that in the particular case he showed a want of skill, evidence of general skill will not (it is said) be received (6). Section XI. Neglect of duties by Attorneys. Solicitors, like physicians, evidently undertake "to bring to the duties which they have to perform something more than ordinary care, for they are persons of skill and knowl- edge and, like physicians, undertake matters of the very highest difficulty and importance. It is clear that ordinary neglect where so great care is demanded becomes very grave, and in the language of some of the judges, is " gross negligence " (c). Upon the other hand, as the duty is most difficult, it is not every error or want of success that is to be attributed to negligence, and where it has been at- tempted to make a solicitor liable for some error which any careful man might have fallen into, the judges have [345] said that solicitors are only liable for " gross/negli- gence " {d). (J>) " Shearman on Negligence," b. they conld not Inqnlre into the want of 442. In Seaie «. Prentice, 7 East, 318, no skill. evidence was given of general want of (c) See ante, p. 22, note (c) as to the sklU, bat the evidence relied on was phrase " gross negligence." that of negligence in the particular case (<2) Laidler v. Elliott, 3 B. & 0. 738, and which the jnry negatived and the court the cases there cited ; Elklngton v. Hol- wonld not disturb the verdict although land, 9 M. & W. 659. the judge had misdirected the jury that (d) Negligence. — While it lias been held tUat an attorney is liable only for gross negligence (Pennington v. Yell, 11 Ark. 212), the weight of authority Is in favor of the rnle that he is bonnd to exercise reasonable diligence and skill and is liable for ordinary neglect. — Cox v. Sullivan, 7 Ga. Hi; O'Barr v. Alexander, 37 6a. 195; Wilson v. Bass, 20 Me. 421; Eiddle v. Poonnan, 3 Pa. 224; Stevens v. Walker, 26 111. 151; Gambert v. Hart, 41 Cal. 542; Kepler v. Jessup (Ind. App.), 37 N. E. Rep. 655; Dos- 428 MOEK THAN ORDINAKT CARE. As has been said before (e), a high duty has been under- taken which, upon the other band, is a difficult one, and the question is, has it been reasonably fulfilled? (e) ^nte, Fbyslclans. ter V. Scully, 27 Fed. Rep. 782; Morgan o. Giddings (Texas), 1 S. W. Rep. 369. " It is now well settled by many decisions of courts of high author- ity, both of England and of this country, that every client employ- ing an attorney has the right to the exercise, on the part of the attorney, of ordinary care and diligence in the execution of the busi- ness intrusted to him, and to a fair average degree of professional skill and knowledge; and it the attorney has not as much of these qualities as he ought to possess, and which, by holding himself out for employment, he impliedly represents himself as possessing, or if, having them, be has neglected to employ them, the law makes him responsible for the loss or damage which has accrued to bis client from their deficiency or failure of application." — Cochrane v. Little, 71 Md. 323; 18 Atl. Rep.JW, 701. " Every persdn," said the court in Lamphire v. Phipos, 8 Car. & P. 475, " who enters into the learned profession undertakes to bring to the exer- cise of it a reasonable degree of care and skill." It has been held, however, that an attorney is not liable where he acts honestly and to the best of his ability. — Lynch v. Commonwealth, 16 Serg. & R. 368. An attorney does not guarantee the success of a case, bnt he only un- dertakes to avoid errors which no member of the profession of ordinary prudence and skill would commit. — Bowman v. Tallman, 27 How. Pr. 212; Gallagher v. Thompson, Wright, 166, Babbitt v. Bumpus, 73 Mich. 331 ; 41 N. W. Rep. 417. He is not therefore liable for errors of opinion on doubtful points of law.— Morrill ». Graham, 27 Tex. 646; Marsh v. Whitman, 21 Wall. 178; Bowman v. Tollman, 27 How. Fr. 212 ; Watson v. Muirhead, 67 Pa. St. 161. Certainly not when there is no Injury. — Barter o. Morris, 18 Ohio St. 492; Johnson ». Mnnro, 3 Hill (S. C), 8; Hinkley o. Erug (Cal.), 34 Pac. Rep. 118. And if he can show that the defense he was to make was not good, he is only liable if at all for nominal damages. — Grayson v, Wilkinson, 13 Miss. 268. He himself can not set np the defense of champerty in the contract in an action by his client for negligence. — Goodman v Walker, 30 Ala. 482. And in an action to recover money collected by him he can not defend on the ground that the claim upon which the money was collected was illegally acquired either by the plaintiff or his assignor who was the original owner of the claim. — Fogerty v. Jordan, 2 Robt.' 319. ATTOKNEYS. 429 A solicitor is liable for the negligence of his agent (/"), partner (gr), or clerk (A). (/) Simons V. Eose, 31 Bea. 11 ; [post, D'Aroy, L. B. 1 Ex. 6S4 ; 35 L. J. Ex. 202 ; p. 433]. Ipost, p. 433]. (ff) KoTton V. Cooper. 3 Sm. & GUf. (Ik)*Floyd«.KansIe,3Afk.668;Prest- 375 ; see Dimdonald e. Hastermaft. Ij. B. vlck v. Foley, 18 V. B. N. 8. 8oe ; 34 Xu J. 7 Eq. B04;38L. J. Ch. 350; BlcMord o. C.P.189; [port, p. 433.] A retained attorney cannot irlthdraw his services without his client's consent (McKeigue v. City of Janesville, 68 Wis. 50 ; 31 N. W. Rep. 298) ; provided his fees are tendered or secured to him (Gilbert t;. Williams, 8 Mass. Si; Coxi>. Livington, 2 Watts &S. 103), hut he may withdraw from a case If his client insists on employing with him another attorney with whom he objects to have personal or professional relations, and he is entitled to compensation for services rendered np to the time of with- drawal. — Tenney v. Berger, 93 N. Y. 624. Having nndertaken a case he is liable for negligence thongh he acted gratnltonsly. — Stephens v. White, 2 Wash. CVa.) 203; Whart. on Agency, § 600. In such case, he is, it is said, liable only for gross negligence (Shear- man & Eedf. on Neg., § 216). Declaration must aver payment of fees, Cavilland v. Yale, 8 Cal. 108 ; contra, Eccles v. Stephenson, 3 Bibb, 517) ; and he Is liable for acting withont authority or officioasly Intermeddling in a case.— Wharton on Neg., § 600; O'Hara v. Brophy, 24 How. Pr. 379. Whether he is negligent or not is a question for the jury. — Hogg v. Martin Riley, 156 ; Rhines v. Evans, 66 Pa. St. 192; Goodman v. Walker, 30 Ala. 482. Contra, Gambert v. Hart. 44 Cal. 542. Instances of Negligence. — The following are instances of negligence for which attorneys have been held liable ; — Delaying to commence suit until a claim is barred by the statute of limitations. — Stevens v. Walker, 55 111. 151; Bruce v. Baxter, 7 Lea. 477. Palling to record a mortgage, whereby the lien was lost. — Scott v. Harrison, 73 Ind. 17; MUler v. Wilson, 24 Pa. St. 114. Delaying the filing of pleadings.— Clark v. Stevens, 65 la. 361. Failing to notify client holding a mortgage of an impending tax sale of the property.- Wain v. Beaver, 161 Pa. St. 605; 29 Atl. Rep. 114. Loaning money on worthless securities. — Whitney v. Martine, 88 N. T. 535. Omitting to insert in writ the full amount of client's claim. — Varnum V. Martin, 15 Peck. 440. Disobeying the instructions of a client. — Cox v. Livingston, 2 Watts & S. 103; Gabert v. Williama, 8 Mass. 51; Armstrong v, Craig, 18 Barb. 387. Though the attorney acted in good faith and did what he supposed to be lor the interest of his client.— Cox v. Llvington, 2 Watts & S. 108. Palling to exercise care In the examination of titles or giving delec- 430 MORE THAN OEDINAET CAKE. The obligation of the solicitor is towards' his client, and not towards a stranger, to whom he is not responsible for erroneous advice («). (i) Fish V. EeUy, 17 C. B. N. S. 194; If Q. B. 286, and even to the defendant he undertakes to apt for any person against whom he proceeds; see Hnb- wlthont anthoritj he Is liable to that bard v. Phillips, 13 M. & W. 702; An- person for any injury which arises from drews v. Hawley, 26 L. J. Ex. 323. his conduct ; Westaway v. Frost, 17 L. J, tive advice in respect to them. — Gilman v. Hovey, 26 Mo. 280; Watson ■0. Muirhead, 57 Pa. St. 161; Bankin v. Schaffer, 4 Mo. App. 108; Pinks- ton V. Arrington, 98 Ala. 489; 13 So. Rep, 561; Thomas o. Schee, 80 la. 237; 45 N. W. Eep. 639. And the attorney cannot set up in defense to an action for overlooking a lien that such lien was erroneous or of doubtful validity. — Gilman o. Hovey, 26 Mo. 280. But the liability does not extend to third persons. — Savings Bank r. Ward, 100 TJ. S. 195; Dundee Mortgage Co. ®. Hughes, 21 N. B. Eep. 169; 24 Am. Law Keg. 197. An attorney has been held liable for prosecuting an action too soon. — Hopping ». Quinn, 12 Wend. 517. Or delaying the bringing an action until it is too late. — Walpole v. Carlisle, 32 Ind. 415; Fitch ». Scott, 4 Miss. 314; Fox v. Jones (4 Tex- Ct. App. Civil Cases, 48), 14 S. W. Eep. 1007. For neglecting to attend a tria'l and plead a defense. — Sharp v. Mofflt, 94 Ind. 240 > Henry v. Clayton, 85 N. C. 371 ; Norwood o. King, 86 N. C. 80; Kerchner v. Baker, 82 N. C. 169. In North Carolina there appears to be a distinction between the " omis- sion of an attorney and the personal inattention of the suitor," and it is said that where a party employs counsel to enter a plea and counsel neg- lects it, in consequence of which judgment is rendered against the party, it is " excusable neglect," and the judgment may be vacated (see Wynne V. Prairie, 86 N. C. 73) ; and in New York similar rulings have been made — Sharp ». Mayor, 31 Barb. 678; Elston «. Schilling, 7 Bobt. 74; Meacham-v. Dudley, 6 Wend. 614. But the general rule is that the neglect of the attorney in this respect is the neglect of the client. — Smith v. Tnnstead, 66 Cal. 176 ; Weeks on Attorneys at Law, § 294, citing Freeman on Judgments, § 112; Austin o. Nelson, 11 Mo. 192; Kerby o. ChadweU, 10 Mo. 392; Merritt v. Putnam, 7 Minn. 493; People v. Harris, 23 Cal. 127; Baboock v. Brown, 25 Vt. 660; Spaulding V. Thompson, 12 Ind. 477; Davidson v. HefEron, 31 Jd,. 687; Beck -0. Bellamy, 93 N. C. 129; Wood ». Wood, (Arkansas), 27 S. W. Eep. 641. In a late case (Welch v. Challen, 31 Ean. 696; 3Pac. Eep. 314) the plaintiff resided in Kansas and the defendants resided in another State. ATTOKNEYS. 431 He is liable althoagh his services are rendered gratui- tously (A), though (it is said) only for gross negligence (I). I (i} Sonaldson v. Holdane, 7 CI. & F. Brougham said, " His condnct in Tolnn- 762. teering his services does Incline one to (I) " Shearman on Kegligence," b. think that the liability he incurred in 215 ; bat it is not so said In the case point of law is somewhat hard npon above cited. Possibly a jory might be him ; bat still I cannot doubt he is li- indnced to look with less severity npon able," and accordingly costs were not the condnct ol a sol icitor who acted gra- f oond against him. tnitonsiy. In the case above cited Lord The defendants employed an attorney in Kansas to file an ansvrer and to attend to the case, bnt the attorney never filed an answer, and before the time for filing it, left the State and did not retam, and judgment was rendered by defaalt against the defendants. The defendants had no knowledge of the negligence of their attorney, or of the rendition of the judgment. It was held that though they had a good defense, and though the attorney was insolvent, that judgment should not be vacated. The conrt, in denying relief, say: "The case of Sharp o. Mayor, etc., 31 Barb. 578, and Klston v. Schilling, 7 Bobt. 74, were not cases decided by courts of last resort; and the case of Meacham v. Dndley, 6 Wend. 514, was not a proceeding to vacate a judgment, bnt was simply a motion to set aside a default." Attorneys have been held liable for improperly dismissing a suit. — Evans V. Watrous, 2 Fort. 206; Copwood v. Baldwin, 25 Hiss. 129. For neglecting to enter up a judgment. — Cox o. Livingston, 2 Watts & S. 103; Fitch v. Scott, 3 How. (Miss.) 314. Entering satisfaction of judgment without full payment. — People v. Cole, 84 ni. 327. For suffering judgment to go by default. — Benton v. Craig, 2 Miss. 198; Gaillard v. Smart, 6 Cow. 385. ' For delaying the delivery of an execution to the officer, whereby the right to issue an attachment was lost. — Phillips v. Bridge, 11 Mass. 246. For not seasonably suing out scire facias against bail. — Dearborn v. Dearborn, 15 Mass. 316. For not giving notice of the insufficiency of bail. — McWilliams v. Hopkitts, 4 Bawle, 382. But they are not bound to move for a new trial upon a question of law.— Hastings v. HaUeck, 13 Cal. 203. They are not liable for omitting to defend a suit if not instructed in the defense. — Benton v. Craig, 2 Mo. 198. Or for forbearing to bring suit where the parties had agreed to leave one of the matters in dispute to arbitration, the decision of which would render action unnecessary. — Hogg v. Martin, Eiley, 136. Liability as Partners.— Attorneys practicing as partners are equally responsible for money collected and not paid over though one of them 432 MORE THAN. OEDINAET CARE. A solicitor is bound to exercise a reasouable amount of skill in the selection of a safe investment for his client, had no participation in tlie transaction. — D wight v. Simon, 4 La. Ann. 490. So where one does the business of a client nnskUUnlly, both are liable to him in damages. — Warner v. Griswold, 8 'Wend. 666. And a dissolution of the firm will not release the iwrtners from lia- bility.— Walker v. Goodrich, 16 III. 341. Thongh the negligence occurs after dissolution and is committed by only one of them. — Poole v. Gist, 4 McCord, 259; Waldeck v. Brande, 61 Wis. 579; 21 N. W. Rep. 533. Money Collect. — An attorney is not liable for the payment of money collected by him until after demand and ref asal to pay it oyer or remit it according to instraction or upon proof of culpable negligence. — Cum- mins V. McLean, 2 Ark. 402 ; Mardis v. Shacklef ord, 4 Ala. 493 ; Clayi)ool 9. Gish, 108 Ind. 424; 9 N. B. Bep. 382. An engagement to pay it over when collected to a third party and a failure to do so dispenses with demand. — Mardis v. Shackelford, 4 Ala. 493. And a failure on his part to give notice within a reasonable time to bis client of its collection will dispense trith a demand. — Glenn v. Cuttle, 2 Grant (Fa.) Cas. 273; Benton v. Embury, 10 Ark. 228. So does the fact that the attorney claims to have received the money in his own bright. — Cox v. Delmas, 99 Cal. 104; 34 Pac. Bep. 836. Action for Fees. — An attorney may maintain an action for the recovery of compensation for his services. — Foster «. Jack, 4 Watts, 339; Van Alta V, McKinney, 16 N. J. L. 235; Newman o. Washington, Mart. & Terg. (Tenn.) 79. He cannot recover for services which through his own neglect prove to be of no value to his client. — Nixon v. Phelps, 29 Vt. 198; Cohn v. Heusner, 30 N. Y. S. Bep. 244; Cranmer v. Bnilding & Loan Assoc. (S. D.), 61 N. W. Bep. 35. Nor when he detains money collected, until he is sued for it. — Bredin V. Kingland, 4 Watts, 420. He cannot recover against his client the costs of a suit in which judg- ment is set aside for irregularity committed by himself nor the costs of opposing the motion to set aside the proceedings; nor can he recover for money paid for his client, if it were paid to satisfy costs of a judgment or discontinuance suffered by his Ignorance or neglect. — Hopping v. Quin, 12 Wend. S17; O'Halloran v. Marshall, 8 Ind. App. 394; 35 N. E. Bep. 926. But mere want of success in a suit will not prevent a recovery by an attorney tor services unless there is clear proof of mismanagement on his part.— Brackett «. Sears, IS Mich. 244; Chain o. Hart (Pa.), 24 Atl. Bep. 442. ATTOENETS. 433 although acting gratuitously (m), and it is' said that an omission of such skill is gross negligence (n). (m) Bonne v. Diggles, 3 Obltt, 3U: (»} SUells v. Blackbnzne, 1 Hy. Bl. Cisig V. Watson, 8 Beav. 427. 159. Fewer to Beceive Honey. — An attorney has authority to receive his client's money in a casein which he is employed. — Hiller v. Ivy, 37 Miss. 431; Bryans o. Taylor, Wright, 24S; Miller v. Scott, 21 Ark. 396; Back- man V. Allw^d, 44 111. 183; Erwin v. Blake, 8 Pet. 18; Newman v. Eizer, 128 Ind. 258; 26 N. E. Rep. 1006. And the amount of a judgment recovered by his client and to dis- charge it.— liangdon :;. Potter, 13 Mass. 320; Brackett v. Norton, 4 Conn. 517. But he is not authorized to receive anything bnt money in payment of a debt without express anthority. — Campbell v. Bagley, 19 La. Ann. 172; Wright 17. Daily, 26 Tex. 730; Keller v. Scott, 10 Miss. 81; Wilkinson v. HoUoway, 7 Leigh, 277; Givens v. Briscoe, 3 J. J. Marsh. 634; Bigler v. ■ Toy, 68 la. 687. He cannot receive payment in a depreciated currency (Trumbnll v. Nicholson, 27 111. 149; Davis v. Lee, 20 La. Ann. 248; Chapman v. Ewles, 41 Ala. 103; nor wood.— Pitkin v. Harris, 69 Mich. 133; 37 N. W-. Rep. 61. He cannot receive the notes of a third person in payment or as a col- lateral security. — Jeter v. Haviland, 24 Ga. 252. He may receive partial payments on a claim put in his liands for col- lection. — Pickett V. Bates, 3 La. An. 627. It has been held that an attorney under his general anthority to col- lect a note is authorized to receive a payment of part in money and the residue in a note for a short period of a person of undoubted responsi- bility. — Livingston v. Radcliff, 6 Barb. 201; contra Davis v. Severance, 49 Minn. 528 ; 52 N. W. Eep. 140. (f) And attorney is liable for the negligence of his agents. — Riddle v. Hoffman, 3 Pa. St. 224; Walker v. Stevens, 79 111. 193; Bradstreet v. Everson, 72 Fa. St. 124; Cummins v. Heald, 24 Ean. 600; 36 Am. Rep. 264; Mahoney v. County of Middlesex, 144 Mass. 459; 11 N. E. Rep. 689. (ft) And of his clerks. — Power v. Kent, 1 Cow. 211; Birbeck v. Staf- ford, 14 Abb. Pr. 285; Hayward v. Goldsburg, 63 la. 436; Shattuck v. BUI, 142 Mass. 56; 7 N. E. Rep. 39. (j) And of his partners. — Dwight v. Simon, 4 La. Ann. 490; Mardis V. Shackleford, 4 Ala. 493; Livingston v. Cox, 6 Pa. St. 360; Warner?;. Griswold, 8 Wend. 665; Morgan v. Roberts, 38 111. 65; Poole v. Gist, 4 McCord, 259. An attorney is not liable for the negligence of associate counsel whom be has selected at the request of his client, unless he has participated in it, or has been guilty of negligence in selecting him. — Weeks on Attor- 28 434 MOKE THAN OKDINAEY CARE. When a solicitor has accepted his client's retainer, he is bound to prosecute the matter intrusted to him to its ter- mination. He is not bound, indeed, to proceed if he can- not upon request obtain his fees or security for them, and if he giyes his client reasonable notice of his intention to throw up the retainer (o). [346] Generally speaking, the retainer of the solicitor is at an end when judgment is recovered (p) ; but it may (o) Wads worth v. Marshall, 2 Or. & J. that a solicitor is not boand to move tor 665; poby v. Bailt, 3 B, & Ad. 350; Van a new trial npon a point of law, nor to Sandaa v. Browne, 9 Bing. 102, Institute new collateral salts without (p) Flower V. Bolingbroke, IStr. 639; special Instrnctions, Shearman, s. 227, Brackenbnrg V. Fell, 12 East, 588; Mac- citing Hastings v. Hallecb, 13 Gal. 203; beath v. EUls, i Bing. 578. It is said Pennington v. Yell, 6 Eng. (Ark.) 212. neys at Law, § 303; Wharton on Agency, §§ 601, 276, 245, 604; Porter V. Peckhara, 44 Cal. 204; Watson v. Mulrhead, 57 Pa. St. 247. But an attorney has no power as such to employ assistant counsel at the expense Of bis client. — Paddock v. Colby, 18 Vt. 485. Or to employ a substitute to act in his place, since the relation Is one of personal confidence and cannot be delegated without the consent of the client, — Hitchcock v. McGehee, 7 Port. 566; Matter of Bleakly, 5 Paige, 311; Kellogg v. Ilorris, 10 Ark. 18. Neither has a State prosecutor (Gillespie's Case, 3 Yerg. 325) ; nor a judge.— Batcliff v. Baird, 14 Tex. 43. If the client subsequently assent to the employment, or, with knowl- edge of the facts, does not object to it, he maybe bound by the substitu- tion. — Johnsons, Cunningham, 1 Ala. 249; King ti. Pope, 28 Ala. 601; Smith V. Lipscomb, 13 Tex. 632. {p) The following cases hold that an attorney's functions terminate by the entry of judgment.— Ward v. Sands, 10 Abb. N. Y. N. Cas. 60; Blchardson v, Talbot, 2 Bibb, 382; Jackson v. Bartlett, 8 Johns. 361; Hinkley v. St. Anthony Falls, etc., Co., 9 Minn. 55; Grames v. Hawley, 50 Fed. Rep. 319. That the relation continues until judgment is satisfied. — See Flanders V. Sherman, 18 Wis. 576; Gray©. Wass, 1 Me. 257; Nichols ». Dennis, R. M. Charl. (6a.) 188 ; Cruikshank ». Goodwin, 66 Hun, 626 ; 20 N. Y. S. Rep. 767; Hett v. Pun Pong, 18 Can. S. C. R. 290; Beach v. Beach, 6 Dak. 371 ; 43 N. W. Rep. 701. His authority is not presumed to extend beyond the termination of the suit.— Adams v. First Plain Bank,23 How. Pr. 46 ; Jackson v. Bartlett, 8 Johns. 361 ; Langdbn v. Castleton, 30 Vt. 285 ; Richardson v. Richardson, 100 Mich. 364; 59 N. W. Rep. 178; Person „. Leathers, 67 Miss. 648; 7 So. Rep. 391. ATTORNEYS. 435 be renewed and the attorney will then retain his power to bind his client by a compromise (§■). So if, after judg- ment, he is authorized to do his best to obtain the fruits of the judgment, he has control over the process of execution and may consent to the withdrawal of a ji. fa. (r). He may also accept payment of the debt by installments, but he has no implied authority to enter into an agreement to postpone execution (s). (g) Batlei v. Knight, L. E. 2 Ex. 109; (s) Lovegrove v. White, L. R. 6 0. P. 36 L. J. Ex. 66. 410. (r) Levey v. Abbott, 1 Ex. 588. It has been held that his authority does not terminate with the con- clusion of the case in the lower court when the client is at a distance or in such a condition that he cannot be consulted; and that it is his duty to take steps to have the judgment of the lower court reviewed, if in his opinion that is the proper course. — Weeks on Attorneys at Law, § 260; Bach V. Ballard, 13 La. Ann. 487; Bathgate v. Haskins, 59 N. Y. 583. It is terminated by the death of his client. — Judson v. Love, 35 Cal. 463;'Eisley ». S'ellows, 10 111. 531; Campbell v. Kincaid, 3 T. B. Men. 68; Gleason v. Dodd, 4 Mete. 333; Putnam v. Van Buren, 7 How. Pr. 31; Beach v. Gregory, 2 Abb. Pr. 206; Prior v. Kiso, 96 Mo. 303; 9 S. W. Rep. 898. (s) An attorney employed to prosecute a suit has no authority to dis- charge a judgment unless on full payment of the amount; nor to assign a judgment or execution (Wilson ;;. Wadleigh, 36 Me. 496; Bosler v. Seabright, 149 Pa. St. 241 ; 24 Atl. Bep. 303) ; though client's long ac- quiesence confirms (Gardner v. Mobile & N. W. B. Co., 102 Ala. 635; 15 So. Rep. 271); or confess a judgment (Pfister v. Wade, 69 Cal. 133; nor to consent to set it aside or agree to a new trial (Holbert v. Mont- gomery, 5 Dana, 111) ; or to consent to vacate a judgment pending on appeal (Quinn ;;. Lloyd, 5 Abb. Pr. (n. s.) 281 ; or to waive the substan- tial rights of his client (Daniels v. City of London, 58 Conn. 156; 19 Atl. Rep. 573; Dickerson v. Hodges, 43 N. 3. Eq. 45; 10 Atl. Rep. 111. It has been held that an attorney may consent that a judgment obtained by his client upon default may be vacated (Classman v. Merkel, 3 Bosw. 402) ; though his client has instructed him to the contrary. — Bead V. I^ench, 28 N. Y. 285. And an attomeymay, without special authority, dismiss his client's suit. — Simpson v. Brown, 1 Wash. 247 ; Davis v. Hall, 90 Mo. 659; 3 S. W. Rep. 382. When specially directed by his client he may sue out execution and cause the defendant to be arrested (Hyams v. Michel, 3 Rich, 303) ; and when the plaintiff lives at a distance he may give such direction to the 436 MORE THAN OKDINAET CAKE. A solicitor acting bona fide and reasonably, and not con- trary to his client's direct commands {t), may compromise a suit (u). . Smith, 18 Mo. App. 55; Boberts v. Nelson, 22 Mo. App. 28; Kelly v. Wright, 65 Wis. 236; Wetherbee v. Fitch, 117 111. 67; Taylor v, Evans (Tex. Civ. App.), 29 S. W. Rep. 172. An attorney has authority, however, to submit a cause to arbitra- 438 MORE THAN OEDINAKY CARE. It is suf- [348] ficient if he shows negligeace.operating to produce the loss of the cause (x). [349] Whiere an action is brought by a solicitor for his costs, he must of course prove his case, i. e., he must show affirma- [350] tively that he has fairly, carefully, and honestly discharged his duty (?/). [351] The question of what in each particular case amounts to negligence is not instructive, and the cases are collected together in a note (s) for the purposes of ref- erence. [352] A solicitor is not liable for error in judgment (a) Goaefroya.Jay,7Bing.413. The solicitor may Bbow In answer that there has been no damage ; bat even then the plaintiff is, as it seems, entitled to a yer- dict for nominal damages. See the case above cited, and Harzettl v. Williams, IB. & Ad. 115, and the cases as to 8heilfis,j>ost. (J/) Allison V. Bayner, 7 B. & C. 411. (s) Brambridge v. Massey, 28 L. J. Ex. 59; Hayne v. Rhodes, 8 Q. B. 312; Hopgood V. Parkin, L. E. 11 Eq. 71; Cooper V, Stephenson, 21 L. J. Q. B. 292 ; Watts i>. Foiter, 3 E. & B. 713 (cases of mortgage) ; Taylor v. Gorman, 1 Ir. Eq. Rep. 550 (particulars ol sale) ; Potts v. Dutton, 8 Bear. 193 (expenses of conyey- ance) ; Stannard v. UUlthome, 10 Bing. 191 (nnnsual covenants) ; Enlghts v. Qaarles,2B. & B. 102; Allen ». Clark, 1 K. B. 856; Treason v. Pearman, 3 B. & O. 799; Wilson v. Tacker, 3 Stark. 151 (cases of Investigation of title) ; Parker ».Rools, UC. B. 691; ElklDgtoni;. Holland, 9 M. & W. 669 (cases of deeds not under seal, or unattested); In re Bolton, 9 Beav. , 272; Be Spencer, IS W. E. Oh. 210 (mls- - take In Older of court) ; Reeve v. Palmer, 50. B. N. S. 81 (loss of deed) ; Donaldson V. Haldane. 7 CI. & F. 762; Dartnall v. Howard,lB.&C. 315 (deposit of money): Cox V. Leech, 1 0. B. K. S. 617; Hunter V. Caldvrell. 10 Q. B. 69; Fraukland v. Cole, 2 Or. & J. 590; Huntley v. Bulwer. 6 Bing. N. C. Ill ; Stannard o. UUlthome, lOBing. 191; Jacaud v. French, 12 East, 317; Plant ti. Pearman, 11 L. J. Q. B. 169; Long V. Oris, 18 0. B. 610; Stokes v. Trumper, 2 K. & J. 232; Williams v. Gibbs, 5 Ad. & EI. 208; Eemp v. Burt, 1 B. &, Ad. 121; Hart v. Frame, 6 01. &F. ~ 193; Godefroy v. Jay, 7 Bing. 113; SimQus V. Rose, 31 Beav. 1 ; Russell v. Stewart, 3 Burr. 1787; Pitt ». Talden, 4 Id. 2060; Laidler v. Elliott, 3 B. & c' 738; Russell V. Palmer, 2 Wlls. 325; Hill v. Rinney, 1 F. & F. 616 (cases of neglect or ignorance of procedure) ; Reece v.Rigby, 1 B. & Aid. 202; Rex v. Tew, Sayer, 60 ; Kash V. Swinburne, 3 Man. & 6r. 630; DeRonflgnyv. Peale, 3Tauut.l81; Dax V. Ward.l Stark. 109; Hawkins v. Har- wood, 1 Ex. 503; Swannell v. Ellis, 1 Bihg. 317 (cases of neglect In preparing for trial or attending); Allison v. Ray- ner, 7 B. & 0. HI (not informing clients as to costs). A corions case Is reported (Lee V. Dixon, S F. & F. 711) where a solicitor brought an action on behalf of his client in a superior court for a very small sum of money, and the plaintiff had to pay the costs. The action was twice tried, the flrst time with a verdict for the plaintiff, the second with a verdict for defendant. tlon.— Holker v. Parker, 7 Crancb, 436 ; Markley v. Amos, 8 Rich. 468 ; Smith V. Barnes, 29 N. Y. S. Hep. 692 ; 9 Misc. Bep. 368 ; McElreath v. Mlddleton, 89 Ga. 83 ; 14 S. E. Bep. 906. ATTOKNEYS. 439 upon points of new occurrence, or of nice or doubtful con- struction (a). [353] Where the retainer is to do a particular thing, the solicitor is liable for negligence only with respect to that par- [354] ticular matter; and though his negligence in re- spect of matters connected therewith may cause injury to the client, he is, it seems, not liable (6). In a case of unusual difficulty, or where some new point arises, the skill and knowledge which a solicitor is bound to bring to the execution of his duties may be insufficient; and, however competent he individually may be, he may [355] desire to act under the advice of counsel. If, therefore, upon such a matter he fairly and fully lays a case before counsel, and follows the advice carefully, he is dis- charged from liability if it should turn out that such advice was fallacious (c) ; but upon matters which are entirely within his own province, and should be known to him, he cannot shelter himself under the opinion of counsel (d). By the Attorneys and Solicitors Act 187([) (e), agree- ments may be made between solicitors and their clients with respect to the remuneration of the former; but by sect. 7 a provision in any agreement that the solicitor shall not be liable for negligence, or that he shall be relieved from any rdsponsibility to which he would otherwise be subject as such solicitor, is wholly void. By sect. 8, no action can be brought upon any such agreement ; but the agreement may be enforced in the manner indicated in the section. It has been held that this section only applies to prevent actions to recover sums in lieu of costs after the work is done, and not to an action for refusing to allow a solicitor to do the work (/")» The above statute does not apply to (a) Godefroy v. Dalton, 6 Bing, 168; v. Bart, 1 Nev. &Maii. 262; Manning v lAidlerv. Elliott, 3 B. & C. 738. Wilkin, 12 L. T. 249. (6) Langdon v. Godfrey,! F. & F. 445. (d) Godefroy v. Dalton,6Blng. 460,469' (c) Andrews V. Handley, 26 L. J. Ex. (e) 33 &34 Vict. c. S8. 323;Frayv.V0Dles,lEl.&£1.839;E.emp (/} Keesv. WiUlam8,L.B. lOEz.200- 440 - MOKK TELiN OBDINAET CARE. conveyancing or non-continuous business, agreements as to which are regulated by the Solicitor's Eemuneratiou Act, 1881 (flr). A patent agent is expected to know the law relating to the practice of obtaining letters-patent, and is answerable for negligence causing injury to his client by want of knowledge and skill (h). [356] Section XII. , Neglect of Duties by Bankers, <&c. Bankers, in the course of their business as such, are bound to exercise something more than ordinary care. Like physicians and lawyers, they hold themselves out to be persons of care and skill, and they undertake most important duties. But they are only bailees for reward of certificates intrusted to them for safe custody, upon which they receive commission for collecting the divi- dends, or upon which they have a lien (i), and as such, are liable for ordinary negligence only ; and where goods are simply deposited with them, and they make no charge, and the customer keeps the key of the box, they are merely gratuitous bailees; and, possibly, something less than ordinary care is all that is required of them (k). But with respect to money placed in their hands by their customers for the ordinary purpose of banking, whether they receive a profit or not, they hold themselves out as persons worthy of trust, and as persons of skill, and they (gr) U&iS Tlct. 0. 44, BS. 8, 9. Scott «. Xatlonal Bank ol Chester Valley, (A) Lee v. Walker, L. R. 7 0. P. 121 ; 72 Fa. St. 472 ; Lancaster Bank v. Smith. 41 L. J. . F. 91 (delay of four months In 62 Fa. St. 47, poet. Chap. IV. [They are getting patent sealed), liable only for gross negligence, Carlisle (i) In re United Service Co., John- bank i>. Graham, 100 T7.S. 699; Allentown son's Claim, L. R. 6 Oh. 212; 40 L. J. Bank v. Rex, 89 Fa. St. SOS; Fattlson v. Oh. 286. Syracuse Bank, 80 N. V. 82; 86 Am. Rep. (k) Glblln V. McUnllen, L. R. 2 F. C. 682, disapproving Wiley v. Brattleboro 317; foster V. Essex Bank, 17 Mass. 479; Bank, 47 Vt. 646; 60 Vt. 3891. BANKERS. 441 must be expected to use something more thau ordinary care (Z). A banker would be liable for negligently refusing to cash his customer's cheque when he had sufficient funds iu hand (m). So bankers are liable for negligently paying forged [357] cheques (n), and there can be little doubt that they are bound to exhibit skill in detecting such forgeries. They [358] are not liable if there has been contributory neg- ligence (o), but it seems that such contributory negligence, in order to be an answer in an action for negligence against bankers, [359] must be negligence in regard to the par- ticular matter in dispute, and be in the nature of an estoppel (p). (Z) Wharton, a. 510. (o) Toung v. Grote, 4 Blng. 253. The (m] Marzettl v. Williams, 1 B. & Ad. aatbority of this . case has been very 415. This case was not founded on neg- mach questioned, see Baxendale v. Ben- llgence; the action was snbseqnently nett, L. R. 3 Q. B. D. 525. founded on the contract, and a willful (p) Arnold v. Cheque Bank, L.B.I C. breach was alleged, but Taunton, J.,pnts F. D. 578 ; 43 L. J. C. P. 662 ; Patent Safety it on the breach of duty. Gun Cotton Co. v. Wilson, 49 L. J. 713; (n) Bank of Ireland v. Trustees of ante, p. 2. Evans' Charity, 5 H. L. C. 389. (Z) First Nat. Bank v. Meller, 37 Neb. 500; 55 N. "W.Kep. 1064; Keyes V. Bank, 52 Mo. App. 323; First Nat. Bank v. Fourth Nat. Bank, 56 Fed. Rep. 967; 6 C. C. A. 183; Wood Eiver Bank v. First Nat. Bank, 36 Neb. 744; 55N. W. Rep. 239. (p) In Leatlier Manufacturers' Nat. Bank v. Morgan (117 TJ. S. 96; 21 Rep. 481), the question was as to the right of a subscriber to dispute the account rendered by the bank so far as it charged him with certain checks which he signed, but which before payment were materially altered by his clerk without his knowledge or assent. Upon several occasions, before the alterations were discovered by the depositor, Ms pass-book was, at his request, written up, a balance struck and the book returned with the checks as vouchers for the payments made by the bank. The court held that it was error to instruct the jury, that the depositor was under no duty whatever to the bank to examine his account so rendered in order to ascertain whether It contained errors to his prejudice; that it was the depositor's duty to examine his pass-book and the checks returned, and to report errors to the bank, and whether he exercised that degree of care which the circumstances required was a question for the jury. See Wachsman v, Columbia Bank, 28 lii. Y. S. 442 MORE THAN ORDINARY CARE, A manager of a bank discounting bills for companies in which he has an interest without disclosing that fact is Kep. 711; 6 Misc. Rep. 62; Janin ». London & S. F. Bank, 92 Cal. 14; 27 Pac. Rep. 1100. Contra, First Nat. Bank v. AUpn, 100 Ala. 476; 14 So. Rep. 336. Bankers. — Bankers in general pay forged checks at their peril. — Levy 0. Bank of United States, 4 Dall. 284 ; Weisser o. Dennison, 10 N. T. 68 ; Frank v. Chemical Bank, 45 N. Y. Supr. Ct. 462 ; National Bank of Commonwealth v. Grocers' National Bank, 35 How. Pr. 412; Hardy V. Chesapeake Bank, 51 Md. 562; Dodge v. National Exchange Bank, 20 Ohio St. 234; Birmingham Nat. Bank v. Bradley (Ala.), 16 So. Rep. 440; Iron City Nat. Bank v. Ft. Pitt Nat. Bank, 195 Pa. St. 46; 28 All. Rep. 195; 33 "W. N. C. 435; Anderson v. Dundee State Bank, 66 Hun, 613; 21 N.Y. S. Rep. 925; Hatton v. Holmes, 97jCal. 208; 31 Pac. Eep. 1131; Kummel v. Germania Sav. Bank, 127 N. Y. 488; 28 N. E. Eep. 398; Georgia R. & B. Co. v. Love & Good-Will Soc, 85 Ga. 293; 11 S. E. Rep. 616; First Nat. Bank v. State Bank, 22 Neb. 769; 36 N. W. Rep. 289; Germania Bank «. Boutell (Minn.), 62 N. W. Rep. 327. The payee or holder maybe guilty of contributory negligence and may himself be held to bear the loss. As to the duty of notifying the bank of the discovery of the payment of a forged check, see United States v. Nat. Exchange Bank, 45 Fed. Rep. 163; Wind v. Fifth Nat. Bank, 39 Mo. App. 72; Van Wert Nat. Bank v. First Nat. Bank, 6 Ohio Civ. Ct. R. 180. Where the payee took a forged check drawn payable to his order from a stranger without inquiry, although In good faith and for value, indorsed it and received payment, it was held that the drawee might recover bapk the money paid, — National Bank of North America, etc. v. Bangs, 106 Mass. 441. In anothei? case where a forged check was presented to and paid by a bank other than that on which it was drawn, it was held that the drawee bank could recover back the amount paid, the custom bei.ng for the first bank to make the necessary inquiries as to the genuineness of the signa- ture.— Ellis B. Ohio Life Ins. Co., 4 Ohio St. 628 ; Peoples' Bank v. Frank- lin Bank, 88 Tenn. 299 ; 12 S. W. Rep. 716. , A depositor in a bank drew his check upon the bank for a certain amount payable to the order of a person named. The clerk of the depos- itor erased the name of the payee and obtained the money on the check from the bank. On the first of the following month the bank returned this check among others to the depositor and sent him a monthly state- ment which included this check as paid; and after another monthly statement the depositor drew from the bank the balance remaining, ac- cording to this statement, and made no objection to the payment of the check until twenty-three months after such payment. The court held, in an action by the depositor against the bank to recover the amount of BANKEBS. 448 not guilty of negligence if he is acting in the ordinary course of business, and has not exceeded his powers (g). (g) Bank of Upper Canada v. Biadsbaw and Others, L. B. 1 P. C. 419. the check, that the defendant was not entitled to a ruling as a matter of law; that if the plaintiff did not, alter a reasonable opportunity to examine the checks returned, object to the payment of the check in question, he would be presumed to have ratified it; but that the ques- tion of ratification was for the jury; that the plaintifE was bound to use due diligence on discovering the forgery and was affected by the knowl- edge which his clerk had who committed the forgery and whose duty it was to examine the checks returned by the bank. — Dana v. National Bank of the Bepublic, 132 Mass. 166. Whether a bank receiving for collection bills, or drafts, payable at a distant place and transmitting them to a bank at that place, is liable for the negligence of the latter, is disputed. The New York, New Jersey and Ohio cases hold that the first bank is liable for the default of the second, on the ground of agency. — Commer- cial Bank v. Union Bank, 19 Barb. 391; Donner v. Madison County Bank, 6 Hill, 648 ; Keeves v. State Bank of Ohio, 8 Ohio St. 165 ; Davey v. Jones, 42 N. J. L. 28; 36 Am. Bep. 505. See Power v. First Nat. Bank, 6 Mont. 261; 12Pac. Kep. 597. The weight of the authority is opposed to this view and to the effect that when the first bank selects proper and suitable agents for making collections, it is not liable for their default. — Dorchester, etc., Bank v. New England Bank, 1 Cush. 177; East Haddam Bank v. Scovil, 12 Conn. 303; Daly v. Butchers', etc.. Bank of St. Louis, 56 Mo. 94; JEtna Ins. Co. V. Alton City Bank, 25 111. 243; Guelich v. State Bank, 56 la. 434; 41 Am. Bep. 110; Lonisville Bank v. Vicksburg Bank, 61 Miss. 112; 48 Am. Bep. 78; Stacy o. Dana County Bank, 12 Wis. 629; Citizens' Bank v. Howell, 8 Md. 530; Exchange Bank v. Sutton Bank, 78 Md. 577; 28 Atl. Bep. 563; First National Bank v. Spragne, 34 Neb. 318; 61 N. W. Bep. 846. And a bank having placed a note for protest in the hands of its notary, properly selected, is not liable for his negligence. — Baldwin v. Bank of Louisiana, 1 La. Ann. 13; Citizens' Bank v. Howell, 8 Md. 530; Bowling V. Arthur, 34 Miss. 41; Britton t>. Nicolls, 104 U. S. 757; contra, Davey t7. Jones, 42.N. J. L. 28; 36 Am. Bep. 506; Allen v. Merchants' Bank, 22 Wend. 215. Bat where a note sent to a bank for collection was delivered to its notary, who was the attorney of the bank and Incompetent to make de- mand and notice by law, and the notice was not properly served, so thai 'the indorsers were entirely discharged, the bank was. held liable to the owner of the note. — Bank of Lindsburg v. Ober, 31 Kan. 600. 444 MORE THAN OEDINAKY CARE. Assuming it to be the duty of a banker not to disclose the state of his customer's account without reasonable cause (r), the question of xeasonableness is for the jury (s). Section XIII. JDfeglect of Duties by Stockbrokers. Stockbrokers carry on a business well known to the law. They undertake a well-known duty, viz. : to use all reason- able efforts to find a purchaser of shares, and to make a contract with him in a binding form on the Stock Exchange, and it is no excuse to say that by the custom of a local exchange, the contract is usually made in a form which is not binding, for that is not a reasonable custom, and the customer is entitled to substantial damages if the broker makes a contract which is not binding, whereby the plaintiff suffers damage {I). (r) Which it Is submitted Is without date. The fact or knowledge cannot be doubt. regarded as a confidential commnnlca- (a) Haidy v. Teasj, L. B. 3 Exch. 107 ; tlon." Morse on Banks, etc, cltlngUoyd STIi. J. Ex. 76; Fosters. Bank of London, v. Freshfleld, Car. & P. 325, and Forbes 3 F. & F. 2U, considered. An action Oase, II I.. J. Oh. 167.] wonld arise at all events npon special (<) Nellson v. James, 9 Q. B, D. 546. damages shown. Hardy v. Veasy.sujir'a. It seems doubtful whether the plaintiff [" But it is unquestionable that a banker could recover more than the price of summoned as awiiiiesSt a /or^iori, sum- shares omitted to be sold, as In the moned as garnishee, mast declare the above case a claim to be indemnified balance of bis customer at any given against calls was abandoned. And where the notary is the piesldent and manager of the bank and he delays protesting until, the indorsers are discharged, he is agent of the bank so as to render it liable. — Wood Biver Bank o. First Nat. Bank, 36 Neb. 744; 56 N. W. Bep. 239. PUBLIC orncEBS. 445 [360] Section XIV. Neglect of Duties by Public Officers (m). Where the duties of a>pablic officer are ministerial he is liable to an action of negligence if he negligently fails in the performance of them ; but when they are discretionary or judicial he is not liable (as). In the latter case he is, indeed, in general liable in another form of action where he has been corrupt or malicious, or has acted beyond the scope of his authority (y). Sometimes an officer whose principal duties are judicial may have to act ministerially in some particular duty or in some particular part of his judicial duties, and in respect of his ministerial duties he is liable to the charge of negligence (a). Public officers, whether their duties are of a general public nature, or of a quasi-T^xibX^c nature ( that is, who act upon request of individuals for reward), are liable for negligence, and are not protected merely because they act bona fide and to the best of their skill and judgment, but they are bound to conduct themselves in a skillful manner ( a ) . (u) The most nsnal way of compel- for instance, the keepers of apeniten- llng public ofScers to peifoim their tiary, have been held, in America, not duties is by mafidamus, bat this form of liable for negligence. Alamango v. remedy Is oatside the scope of the pres- Albany Connty Saperrisors, 2S Hun (N. ent work. T.), 551. (x) See Xilnford v. Fltzroy, 13 Q. B. {y) As this is beyond the scope of 240 (admitting to bail, jadiclal, not min- this work, the reader Is referred to other isterial) ; Ash by v. White, 1 Smith, L. O. treatises as to the liability of judges, 216, Sth ed., see p. 258, and Collin v.Mor- magistrates, and other ofBcers, in re- ris, 2 Stark. 587(retarnlngofScerat elec- spect of maliclons and cormpt acts, tion, partly ministerial, partly jadiclal) ; Judges and barristers are exempted Barry v. Amand, 10 A. & E. 646 (collector from actions of negligence on the gronnd of cnstoms, minlsterlaU ; Miller o, Scare, of pnbllc policy. The question, what is 2 W. Bl. 1141 (commissioner in bank- a ministerial act, and what a judicial or rnptcy imprisoning, ministerial) ; Shin- discretionary act, will depend upon the otti V. Bumpstead, 6 T. E. 646 (manager circumstances. of lottery, ministerial); Tozer v. Child, (s) Shearman, 165; Fergnsenv. Etn- 7 E. & B. 377 (returning officer, judicial) ; noul (Earl of ) . 9 01. & F. 251 ; Brasyner v. Pickering*. James, L. R. 8C.P.489; 42 Maclean,L.R.6 F.C.398;44 L. J. P.O. 79. L. J. 0. P. 217 (presiding ofSoer at ballot, (a) See Jones v. Bird, 5 B. & Aid. 837. ministerial). The agents of the State, as 446 MORE THAN ORDINARY CARE. [361] Public officers are bound to exercise care in select- ing subordinates, and in superintending them; but there is a distinction between public officers whose duties are of a general public nature, as officers or servants of the Govern- ment or public, and public officers wBose duties are of a quasi-pvhlie nature, as persons 'called upon by individual members of the public to do particular acts. The former are not responsible for the negligence of those who are their deputies or subordinates, for these are, like themselves, servants of the Government or the public, who is the prin- cipal or master (6), but the latter class of officers have always been held liable for the negligence of their servants. Who are public servants of the former class so as to exempt them from liability for the acts of their subordinates, has not been always clearly determined. It was long thought that all commissioners appointed by the Crown and intrusted with the care of public works were public servants, and as they were formerly personally liable, if at all, it was held that they were exempted from a^ll liability ; but now that such bodies are only liable in their corporate capacity they are held liable for the acts of those whom they employ (c). If a public officer intrusts his public duty, which he ought to do himself, to another person, who neglects to perform the duty, the public officer is liable to an action for negligence (d). If he is permitted by statute to de]e- (&) Nlcbolsonv. Uonnsey, 15Ea8t,381 So tbat tbe receiver of a message was (captain of ship) ; Lane v. Cotton,! Lord and is without remedy (see Playtord v. Saym. 646 (post office) ; see also White- U. K. Tel. Co., L. E. 4 Q. B. 70 ; 38 L. J.Q. field V. Despenser, 2 Oowp. 765. Per B. 249; Dickson v. Renter's Tel. Co., L.R. Blackburn, J,, In M:erseyDockS!>.6ibbB, 2 O. P. D. 62; 46 L. J. C. P. 192). The L. R. 1 H. L. Ul; see also Ree.t;. Treas- sender would formerly have had bis ufy, L. R. 7Q. B. 387. Since the Govern- remedy against the company, but now he ment have undertaken to transmit tele- has not. In America it is said that tele- graph messages, tbe above principle graph companies are common carriers applies to any Injury arising from negli- (see Shearman, ss. 554, 555) , though not genoe of telegraph clerks. It may here liable, except for negligence or miscon- be mentioned that formerly tbe receiver duct, s . 556 ; [see post, damages], of a message could not sue the company, (c) Mersev Docks v. Glbbs, supra; because he bad no privity with them, [and as to liability of public officers for and he could not sue the sender for a actsof subordinates, ^08<, p. 450]. ililstake made by the company's clerk. (d) Piokard v. Smitb, 19 0. B. N. S. PUBLIC OFFICEES. 447 [362] gate his duties to another, and does so, that other becomes responsible; but if he continues to act, he himself is responsible (e). It must be clearly shown upon whom the duty rests which has been neglected, and the neglect of which caused the damage. Sometimes there is a duty to superintend others in the execution of a duty, or to step in to perform such duty when neglected by others, or to. pay for the per- formance o^ it by others, but the duty to do the thing rests upon those others, and they are the persons primarily responsible. The damage flows immediately from their neglect of their duty, and they are the persons liable for such neglect. Where Navigation Commissioners were by their Act to give notice to their lessee of non-repair of a canal, and in case of non-compliance to do the repairs themselves, and they knew of a want of repair and gave no notice, it was held they were not responsible, for the injury did not flow immediately from their neglect to give notice. The pri- mary duty was on the lessee, who was merely under the superintendence of the commissioners {f). Where Im- provement Commissioners had by their Act power to re- quest a waterworks company to fix plugs and pipes, and were to pay for the repairs of them by the company, it was held that the company were liable, as the duty of doing the repairs ,was cast upon them, although the com- missioners were to pay for them being done (pr). The question, what is or is not negligence in an officer of a court of justice, a notary, a sherifi", &c., depends upon particular circumstances, and although there are many cases in the books, yet there is no particular test or prin- ciple to be gathered from them. It is of course negligence 480 (contractor). See arOe, as to this. {/) Walker v. Goe, 4 H. & N. 350. [Shearman & Eedt, § 175.] (?) Bayley ». Wolverhampton Water- (e) Pickering v. James, L. E. 8 0. P. works Co., 6 H. & N. 241. 489; 42 L. J. 0. P. 217 (presiding officer at ballot). 448 MOBB THAN OBDIKART CABE. to neglect a duty, but the question whether there is a duty [363] depends upon the particular circumstance^, as for instance the interpretation of the statute under which the officer is acting, or the usual'practice of the courts, or the necessities of the case. If there ia no duty arising in any way to do a thing there can be no negligence in omitting to do that thing (A). A notary public appears to be a person to whom the laws of America (i), France {k), and Scotland (Z) give large powers, but in England (m) his functions are more limited ; but whether he is employed as a public officer to do minis- terial acts, or as a private person undertaking to exercise skill for reward, it is submitted that he is bound to exercise more than ordinary care. A high degree of responsibility attaches to a sheriff to- wards the person who employs him (n). His liability to the owners of goods seized is only that of an ordinary bailee, and he is only liable for ordinary neg- ligence (o). A sheriff's duties are ministerial, and the statutes impos- ing them usually inflict penalties for neglect in their per- formance, but as we have seen (p) the imposition of such penalties does not in general relieve him from his common- law liability to an action for negligence. Numerous cases are to be found as to what is or is not a negligent act on the part of a sherifi', but each case depends upon its own particular circumstances (q). (ft) Ante, p. 2. See Eobinson v. Gell, (m) Nye v, Macdonald, supra; and 12 C. B. 191. As to the qaestlon of see Bex v. Scilveners' Co., 10 B. & 0. whether, vrbere a statute imposes a pen- 619. Bis pnbltc dnties are chiefly the alty on an officer lor neglect, the remedy protesting of bills and giving effect to by action still sarvives, see Atkinson v mercantile documents In foreign courts Newcastle Waterworks Co. ; Conch v. by certificate. Steel, ante. (n) It is said In Hodgson v. Lynch, (i) See Shearman on Negligence, ss. Irish Bep. 6 O. L. 353, that he is only re- 123—430. sponsible for ordinary negligence. See (.h) See Nye v. Macdonald, L. B. 3 F. also Shearman, s. 530, n. i, sed gmere. O. 331. (o) See ante, Ch. H., s. 8. (2) Campbell on Negligence, 2nd ed., (p) Ante. P- a. (9) Dennis v. Whetham, L. B. 9 Q. B. PUBLIC OFFICERS. 44^^ [364] Where a sheriff has to take sureties on a replevin bond he must exercise at least a reasonable care in accept- ing them (r). The penalty of the bond is the measure of damages (s). In an actisn against a sheriff for negligence in executing mesne process, evidence, such as would be sufficient to charge the original defendant with the debt, is sufficient 345; 43 L.J. Q. B.129(twowTltsfrandn- Darliiig.Bnll. K. P.60; GwUlimti. Scho- lent, retnin of nulla bona to third writ) ; ley, 6 Eep. lOO. Allen V. Carter,lj.E. 5 C. P. 414; Will- («) Jeffery v. Bastard, supra. [The lams V. Rose, L. B. 3 £x. 5 ; 37 L. J. Ex. sheriff is not an insurer of the sufSciency 12; Dlgnam v. Baily, L. B. 3 Q. B. 178; of the sureties on a replevin bond; itis 37 L. J. Q. B. 71; Goodwin v. Stone, L. sufficient if he takes security believed R. 4 Ex. 331; 38 L. J. Ex. 153 (escapes). by him to be, and understood by well The plaintiff must show actual damage, informed men to be, responsible. It Is Williams v. Mostyn, i M. & W. 145. his duty, however, to retnin the bond Arrest on final process Is in general with the writ, so that the defendant may abolished, 32 &3S Vict. c. 6Z. s. 4. have an opportunity to obtain additional (r) Kindal v. Blades, 5 Taunt. 225; security, and he is responsible for the Scott V. Waithman, 3 Stark. 168; Jeffery damages occasioned by his failure to V. Bastard, 4 Ad. & El. 8^; Sanders v. make such return. People i>. Robinson, 89 lU. 159]. Public Officers. — Tbe American cases are in accord with the princi- ples annonnced in the text. Public officers acting in a ministerial capacity are liable for negli- gence.— Kendall V. Stokes, 3 How. '87; Tyler v. Alfred, 38 Me. 630; Kobinson o. Chamberlain, 34 N. Y. 389; Nowell v. Wright, 3 Allen, 166; Whart. on Neg., § 284; Bartlett v. Crozier, 15 Johns. 150; Kennard v. Willmore, 2 Heisk. 619. Fnblic officers acting in a judicial capacity are not liable in a civil action for negligence. — Edwards v. Ferguson, 73 Mo-. 686; Yates ».' Lansing, 5 Johns. 282; affirmed 9 Johns. 395; Walker v. Hallock, 32 Ind- 239; Tompkins v. Sands, 8 Wend. 462; Lilienthal v. Campbell, 22 La. Ann. 600; Bamham v. Stevens, 33 N. H. 247; Raymond v. BiUes, 11 Cash. 315. Public officers whose duties are principally judicial may perform min- isterial functions and in respect to them may be liable for negligence. — Tyler v. Alfred, 68 Me. 630; Briggs ». Wardell, 10 Mass. 356; Place b. Taylor, 22 Ohio St. 317; Fairchild v. Keith, 29 Ohio St. 166; Harlow v. Birger, 30 111. 425; Cosby ». Commonwealth, 91 Ky. 235; 15 S. W. Rep. 514. The rule that officers Invested with judicial or discretionary powers are not liable for negligence has been held to apply to judges of courts (Yates V. Lansing, 5 Johns. 282; 9 Johns. 395; Whart. on Neg., § 285; Cannlngham ». Bncklin, 8 Cow. 178; Thompson©. Jackson (la.), 27Ii. 29 450 MOKE THAN ORDINARY CARE. against the sheriff to support an averment that the original defendant was so indebted (t). (t) Sloman ■•>. Heme, 2 Esp. 695; Williams v. Bridges, 2 Stark, 12; Gibson v. Coggln, 2 Camp. 188. R. A. 92; Bradley v. Fisher, 80 U. S. (13 Wall.), 336; 20 L. ed'. 646 ; Bnrn- ham V. Stevens, 33 N. H. 247; Chickeriug v. Robinson, 3 Cush. 543) ; to grand jurors for their action on the grand jury (Turpen v. Booth, 56 Cal. 65; 38 Am. Rep. 48); a town board of equalization In determining the value of land (Steele v. Dunham, 26 Wis. 393) ; a board of selectmen assessing property. — Fawcett v. Dole (N. H), 29 Atl. Rep. 693); a board of supervisors (People v. Stocking, 50 Barb. 673) ; a board of prison directors in determining whether the exigency of a particular case required them to annul a contract for the employment of convict labor (Porter v. Haight, 45 Cal. 631) ; Commissioners in bankruptcy (Cunning- ham V. Bucklin, 8 Cow. 178) ; to members of the Legislature, including members of municipal assemblies (2 Thomp. on Neg. 817; Baker v. State, 27 Ind. 485) ; to wardens or inspectors of a penitentiary in respect to the torts of a convict permitted by them.-^ Schoettger v. Wilson, 48 Mo. 253. Officers of elections are not liable to an action for refusing an elector's vote unless they act corruptly or maliciously (Sherman & Redf. on Neg., § 164; Jenkins v. Waldron, 11 Johns. 114; Bevard v. Hoffman, 18 Md. 479) ; they act ministerially in making a return.^ Dalton v. State, 43 Ohio St. 652; 14 Law Bull. 405. Of the class of officers who perform ministerial duties and who are liable in a civil action for negligence are notaries public (Commercial Banko. Barksdale, 36 Mo. 563; Stacy ». Dane County Bank, 12 Wis. 629) ; recorders of deeds (Houseman v. Qirard Mutual Building Association, 81 Pa. St, 256) ; sheriffs.— Bensel ». Lynch, 44 N. Y. 162 ; Kimbro v. Edmon- son, 46 Oa. 130. Clerks of Courts, etc. A distinction is to be noted as to the liability of public officers owing duties directly to the State, and those owing duties directly to individuals. The former are punishable by indictment, the latter are liable for negli- gence in a civil action, — Shearman & Redfleld on Neg., § 166; 2 Thomp. on Neg. 825. Officers of the first class are not liable for the negligence of their sub- ordinates where they have used ordinary care in their selection. Post- masters have accordingly been held not liable for the losses caused by the negligence of those under them (Keenan v. Southworth, 110 Mass. 474; Schroyer v. Lynch, 8 Waj^ts, 463, 455; Dunlop v.Munroe, TCranch, 242); and officers of the army for the negligent nets of subalterns. — Castle v. Duryea, 32 Barb. 480. I Mail contractors have been held not liable for money lost through the negligence of their agents (Conwell v, Voorhees, 13 Ohio, 623) ; the PUBLIC OFFICEKS. 451 [565] A sheriff is responsible for the negligent acts of his deputy, bailiff, or servant, done in execution of the weight of authority is that they are liable. — Sawyer v. Corse, 17 Gratt. 230; Shearman & Redf. on Neg., § 182; Whart., § 296. Public officers of the second class are liable for the negligence of their subordinates. — Sherman & Redf. on Neg., § 176. Judges. — Judges are not liable for negligence in the ordinary per- formance of their judicial duties or, as is sometimes said, when acting within their iurisdiction. — Yates v. Iiansing, 6 Johns. 282; 9 Johns. 395; Tompkirfs v. Sands, 8 Wend. 462; Way a. Townsend, 4 Allen, 114; Bnrnham v. Stevens, 33 N. H. 247; Tracy v. Williams, 2 Conn. 113; Whart. on Neg., § 285; Ely o. Thompson, 3 A. K. Marsh. 76; Wickware V. Bryan, 11 Wend. 645; Chickering v. Robinson, 3 Cush. 543; Harrison©. Redden, 53 Ean. 265; 36 Fac. Rep. 326; Hughes v. McCoy, 11 Colo. 591; 19 Pac. Rep. 674; Atwood v. Atwater, 43 Neb. 147; 61 N. W. Rep. 574. Though they act corruptly or oppressively. — Shearman & Redf. on Neg., § 157; Hommert v. Gleason, 14 N. T. S. Rep. 668; Bradley v. Fisher, 7 D. C. 32,^ affirmed in 13 Wall. 835; Merwin v. Rogers, 2 N. Y. S. Rep. 396, affirming 1 N. Y. S. Rep. 211. But magistrates must not only act within their jurisdiction (Patzach V. Von Gerichten, 10 Mo. App. 424) ; but honestly and in good faith. — Kibling v. Clark, 58 Vt. 379 ; Gregory v. Brown, 4 Bibb, 28 ; Bevard v. Hoffman, 18 Md. 479; Downing v. Herrick, 47 Me. 462; Home v. Pudil, 88 la. 533; 55 N. W. Rep. 485; McTeer v. Le Baw, 85 Tenn. 121; 2 S. W. Rpp. 18. When they have jurisdiction they are not liable for an error in their judgment (Clark v. Spicer, 6 Ean. 440), for erroneously refusing to grant a new trial. — Jordan v. Hanson, 49 N. H. 199. When such an officer acts ministerially he is liable for negligence. — Tyler v. Alfred, 38 Me. 530. An action may be maintained against a justice who having rendered judgment for the plaintiff through mistake enters up judgment for the defendant which the former is obliged to satisfy. — Christopher v. Van Liew, 57 Barb. 17. For issuing an order of arrest without plaintiff's andertaking of in- demnity as required by statute. — Place ». Taylor, 22 Obio St. 317. For issuing a warrant of arrest without authority of law. — Truesdell ■». Combs, 33 Ohio St. 186. For money received officially in satisfaction of a judgment — which he - has deposited in a bank on his own private account, and the bank fails before the deposit is withdrawn. — Shaw v. Bauman, 34 Ohio St. 25. Notaries Public — Are among the class of officers who owe duties to individuals and who are also liable for negligence. They are liable for protesting a bill for non-payment before maturity (Stacy V. Dane County Bank, 12 Wis. 29) ; for delaying demand of pay- ment until after maturity (Fabens v. Mercantile Bank, 23 Pick. 330), for 452 HORB THAN OKDINABT CARE. sheriff's [366] anthority, but is not responsible for the acts not done in execution of the warrant, unless the sheriff ratify the act of his agent (u). (u) Woodgate v. Enatchbnll, 2 T. B. of a special bailiff appointed at request 149; Crowder v. Long, 8 B. & C. 605; of the party; De Moranda v. Dankin,4 I>rake ». Sykes, 7 T. E. 113; Martin v. X. B. 119; Cook v. Palmer, SB. & C. 742; Bell, 1 Stark. 416; Jones v. Wood, 3 Woodv.Finnis, 7 Exoh. 372; [Skinner ». Campbell, 228. He is not liable for acts Wilson, 61 Miss. 90], certifying an acknowledgment without reading it (People v. Colby, 39 Mich. 456) ; for omission, in receiving a nuncupative will, to set up facts required by the statute. — Weintz v. I^ramer, 41 La. Ann. 35; 10 So. Bep. 416. i'or delegating their duties to another (Chenowith v. Cbamberlin, 6 B. Mon. 60; Commercial Bank v, Barksdale, 36 Mo. 563), though a notary. — Commericial Bank v. Varnum, 49 N. Y. 123. Defectively taking and certifying a married woman's acknowledgment is a judicial act for which the notary is not liable unless he acted cor- ruptly or maliciously. — Henderson v. Smith, 26 W. Va. 829; 53 Am. Bep. 139. It has been held that a bank is liable for the neglect of its notary in making demand and protest of a note. — Allen v. Merchants' Bank, 22 Wend. 215. But the rule is generally that the notary is directly responsible to the holder or owner of the note or bill. — Bellemire v. Bank of U. S., 4 Whart. 105; East Haddam Bank«. Scovil, 12 Conn. 303; Fabens v. Mer- cantile Bank, 23 Pick. 330; Warren Bank v. Suffolk Bank, 10 Cush. 582; Wingate v. Mechanics' Bank, 10 Barr, 104. Actual damages must be alleged and proved before a recovery can be had against a notary. — Dwyer v. Woulfe, 39 La. Ann. 423; 3 So. Bep. 360; McAllister v. Clement, 75 Cal. 182; 16 Fac. Bep. 775. Clerks of courts and recorders of deeds are liable for their own negli- gence and that of their deputies. They are liable for failure to require security for costs on issuing a writ.— Wright v. Wheeler, 8 Ired. L. 184. For neglecting to enter a case on the docket. — Brown v. Lester, 13 Smedes & M. 392; Young v. Connelly, 112 N. C. 646; 17 S. B. Bep. 424. For misplacing papers. — Bosenthal v. Davenport, 38 Minn. 543 ; 38 JSr. W. Bep. 618. For failing to furnish a copy of a bill of exceptions within a proper time.— Houston v. Wandelohr (Ky.), 14 S. W. Bep. 346. For failing to properly index a judgment. — Bedmond v. Staton, 116 N. C. 140; 21 S. E. Bep. 186. For negligence in the entry and recording of bonds. — Bevins v. Bam- sey, 15 How. 179. PUBLIC OFFICERS. 453 [367] He is not liable for the neglect of his predeces- sor (at). Where it is admitted (y) that the person employing the sheriff has sustained no damage, nominal damages can- (,x) DaTidson v. Seymour, M. & M. 31. nies tbat there was any damageiWylie . (y) WUUams v. MoBtyn. i M. & W. v. Birch, i Q. B. 666. 116. So also a plea is good which de- Por wrongful entry of a minute of payment and redemption of mort- gage. — Appleby v. State, N. J. Ct. Err., 28 Alb. J. 316. For accepting a bond with insufficient sureties. — McNult «. Living- ston, 7 Smedes & M. 641. And where they undertake to search for liens they are liable for negli- gence. — McCaraher v. Com., 6 Watts & S. 21; Zeigler v. Com., 12 Pa. St. 227. But their liability extends only to the party who employs them. — Houseman v, Glrard Bldg. Co., 81 Pa. St. 2S6; and such work is no part of their official duty. — Mallory v. Ferguson, 50 Ean. 685 ; 32 Fac. Rep. 410. Sheriffs. — Sheriffs are bound to exercise ordinary skill and dili- gence in the execution of processes and are liable in damages for the consequences of their negligence. They are liable for failure to levy an execution. — State v, Brophy, 38 "Wis. 413. For taking Insufficient statutory bonds (Berheim v. Shannon, 1 Tex. Civ. App. 395; 21 S. W. Eep. 386, following Jacobs v. Dougherty, 78 Tex. 682; IS S. W. Rep. 160; Fraweek v. Heard, 97 Ala. 715; 12 So. Eep. 166; People ». Lee, 65 Mich. 657; 32 N. W. Eep. 817); or failing to take a required bond.— Wilson o. Williams, 52 Ark. 360; 12 S. W. Eep. 780; Lyon V. Horner, 32 W. Va. 432; 9 S. E. Rep. 875. For neglect to attach property (Flinn v, St. John, 51 Vt. 334) ; for making an insufficient levy of attachment. — Dewitt v. Oppenheimer, 51 Tex. 103. For failure to return an execution (Noble v. Whetstone, 45 Ala. 361) ; and the bankruptcy of the defendant in the judgment Is not a sufficient excuse for the sheriff on a motion ag&inst him. — Id. They are liable for failure to return any execution within the time fixed by law. — People v. Johnson, 4 111. App. 346; Turner v. Page, lllN. C. 291; 16 S. E. Eep. 174, followed in Boyd v. league, 111 N. O. 246; 16 S. E. Eep. 338; Van Cleave v. Bucher, 79 Cal. 600; 21 Pac. Rep. 954; Jett V. Shinn, 47 Ark. 373; 1 S. W. Eep, 693. Though their fees are not prepaid. — Herr v, Atkinson, 40 Ark. 877. For making an Inadequate return. — Harrington v. Hill, 51 Yt. 44. For failing to secure enough to satisfy the requirement of the writ. — Adams v. Spangler, 17 Fed. Eep. 133. ' Where a sheriff sold land at public auction on execution and took the 454 MOBE THAN OKDINABY CARE. [368] not be recovered ; but whether nominal damages caa be recovered in default of proof of substantial dam- ages seems doubtful («). (s) See note to Wylle v.'Btteh, supra, ton v. Hooper, 6 Q, B. 468; Stlmson v. at page 580; Barken;. Green, 2 Bing. 817; Farnham,L.B. 7Q. B. 175;ilL.J. Q.B. Balesc. Wlngfleld,2Nev.&M.831;CUt- 52; Levy r. Hale, 29 L.J. C.P.127. purchaser's check for the amount of his bid and the check was not paid, and upon another sale a less amount 'Was bid, the sheriff was held liable for the difference. — Bobinson v. Brennan, 90 N. T. 208. So for negligent irregularity in selling miscellaneous merchandise. — Cramer v. Oppen- stein, 16 Colo. 604; 27Pao. Rep. 716. They are liable for failure to collect the amount paid for property at an execution sale. — State v. Spencer, 79 Mo. 314. , For money received which they neglect or refuse_to pay over on de- mand. — Nash V. Muldoon, 16 Nev. 404. For making a levy upon goods not the property of the judgment debtor without demand, though the goods were in possession of the debtor, and had previously been his property and were sold upon execu- tion against him. — Masten v. Webb, 24 Hun, 90. See Bussell v. Gillespie, 38 Neb. 461; 66 N. W. Eep. 981. For .seizing the property of one person on an attachment writ against another, although subsequently it is ordered by the court to be sold. — State V. Hadlock, 52 Mo. App. 297; Smith v. Holcomb (Tex.'Clv. App.), 21 S. W. Eep. 717; Wise v. JefEeris, 51 Feb. Rep. 641; 2 C. C. A. 432; 7 U. S. App. 276; Allen v. Kirk, 81 la. 658; 47 N. W. Rep. 906. For negligence in allowing a prisoner to escape. — Crane v. Stone, 15 Ean. 94; Browning v. Blttenhouse, 38 N. J. L. 279; Hopkinson v. Leeds, 78 Fa. St. 396; State v. Mullen, 50 Ind. 598; Shaffer ». Biseley, 114 N. Y. 23; 20 N. E. Eep. 630; 16 Civil Proc. R. 369. A sheriff Is not liable for refusing to issue execution, which is not sup- ported by a valid judgment (Newberg v. Munshower, 29 Ohio St. 617) ; or on a satisfied judgment (Union Stone & Mach. Works v. Caswell, 50 £an. 787; 32 Fac. Rep. 362); for non-service upon a non-resident when he followed the direction of the plaintiff. — Hamilton v. Tyle, 9 Fhila, Rep. 98 He has been held not liable for failure to make a levy of an execution for fourteen days after he had received it, when he had many other mat- ters to attend to, and in the absence of any notice to him that greater diligence was necessary.— State v. Blanch, 70 Ind. 204. While a sheriff ordinarily has until the return day named within the writ within which to execute it (Shearman & Redf. on Neg., § 621), if be has reason to apprehend loss to the creditor from delay, he must make service as soon as he reasonably can. — Tucker v. Bradley, 15 Conn. 46. See Gnlterman v. Sharvy, 46 Minn. 183; 48 N. W. Rep. 780. A sheriff is, lu general, liable for the acts of his deputy within the PUBLIC OFFICERS. 455 [369] Justices of the peace are protected iii the exer- cise of their discretion by the 11 & 12 Vict. c. 44, s. 4 (a). (o) Peaiey v. DavlB, 10 O. B. N. S. 492; 30 L. J. C. P. 374; Newbold v. Coltman, 6 Excb. 189. line of his official authority. — Lack v. Zapp, 1 Tex. Civ. App. 528; 21 S. W. Rep. 418; Frankhouser v. Cannon, 50 Kan. 621; 82 Pac. Eep. 379; State V. Dalton (Miss.), 10 So. Rep. 578. A sheriff is liable for the neglect of his deputy to pay over money (Seaver v. Pierce, 12 Vt. 325; Norton v. Nye, 56 Me. 211), though his term - of office has expired (Ross v. Campbell, 19 Hun, 615), for the default of the deputy in making an improper return of a writ. — Prosser v. Coots, 50 Mich. 262. But he is not liable for the neglect of a depnty, when acting as a deputy of a succeeding sheriff. — Blake v. Shaw, 7 Mass. 505. Nor for an unofficial act of a deputy, and the fact that the act was done by the deputy in the belief that it was within bis official power, and that the sheriff on being informed of it, approved of it and afterwards acted upon it In the same belief, will not render the latter liable. — Dorr v. Mickley, 16 Minn. 20. Damages. — In an action against a sheriff for failure to collect a debt under an execution, the measure of damages is the value of defendant's property, if less than the debt at the time the levy should have been made (State v. Lowrance, 64 N. C. 483; Baker v. Bower, 44 Ga. 14; Harris v. Mnrfree, 54 Ala. 161), not the amount of the debt. — State v. Lowrance, 64 N. C. 488. Where a sheriff wroLgfnlly levies on and, sells personal property, and the owner becomes the purchaser at such sale, and thus becomes repos- sessed of his property, in a suit by the latter for the wrongful taking and detention, the measure of his damages may be what it cost him to regain the property and the sheriff cannot object that the sum so paid at the sale exceeded the actual value of the property. — Leonard v. Maginnis, (Minn.), 26 N. W. Rep. 733. See Rogers v. McDowell, 134 Pa. St. 424; 21 Atl. Rep. 166. In the absence of fraud or malice, actual damages only may be recov- ered against erring sheriffs. — Heidenheimer v. Sides, 67 Tex. 32; 2 S. W. Rep. 87; Central Nat. Bank v. Gallagher, 163 Pa. St. 456; 30 Atl. Rep. 212. [370] CHAPTER IV. NEGLECT OP DUTIES KEQUIRING LESS THAN OEDINABT CAEB. Amongst ordinary duties requiring no particular skill or care per se (a), and requiring something less than ordinary care by I'eason of their being performed solely for the ben- efit of another, are those of — ( 1 . ) Gratuitous depositaries . Thus, where bankers (b) accept their customers' property for safe custody gratuitously, they are not required to exercise, as it should seem, even ordinary care, for they are not in this case holding themselves out as persons of skill, as they are when they are dealing with their cus- tomers' balance, &c., and they are not receiving any ben- efit by the deposit. How far the fact that the bailee lost his own goods at the time he lost: the bailor's would be evidence that be took any and what degree of care, seems doubtful (c). It is probably some evidence (though not conclusive) in the case of a gratuitous bailee, that he took that degree of care which such a person is bound to take i. e., something less than ordinary care. An executor is with respect to the assets of the testator in the position of a gratuitous depositary (d). If an article, however, is deposited with a person, who holds himself out (a) It the giataitons dnty be per- 317;88Ii. J. P.O. 25;Coggs«. Bemaid,2 formed by a person professing partlcnlar Baym. 913 ; see ante. skill, he wUl be liable for ordinary neg- (c) Doormanv. Jenkins,2A.&£.2S8. ligence at the least; see ante. (iQ Job v. Job., 6 Oh. D. 662. (6) GibUn v. M'Mallen, L. B. 2 P. C. (1) Gratuitous depositaries. See cases noted, ante, pp. 68, 59. (456) LESS THAN ORDINART CARE. ' 457 as one who employs skill in improving or repairing it, he is bound to show such skill ; but if he does not profess to [371] employ any skill, he is only bound to act bona fide and to the best of his ability (e). (2.) Gratuitous loan — in the case of the bailor. A duty is contracted towards the borrower not to conceal from him defects known to the lender which may make the loan perilous to him ( y ) ; but as the loan is for the bene- fit of the'borrower, the lender is only answerable for gross negligence. (3.) Gratuitously dedicating a way to the public. Here the public adopting the road must take it as it is, although if the dedicator omitted to warn the public of a danger known to himself he would be guilty of gross negli- gence {g). It seems that one who gratuitously acts as a solicitor is only liable for gross negligence ; but it is safer to say that be is not responsible for so high a degree of care as if-he were paid for his services (/i). So also a volunteer, though he is acting without any request, yet if he does so out of mere benevolence, and in order to avoid a probable loss to another, is only bound to show something less than ordinary care (£). So also where a person allows another to come upon his premises, but solely for the benefit of such other person, it would appear from the cases that the inviter is not bound to show so much as ordinary care (A), although upon prin- ciple, as I have said, this is very doubtful. At all events, as regards a trespasser, he is only liable for gross negli- (e) ShleUs v. Blackbnrne, 1 Hj. Bl. (9} Robbins v. Jones, 16 0. B. IT. S. 159 ; DartnaU «. Howard, 1 B. & 0. 350 ; 221 ; Fisher v. Prowse, 2 B. & S. 770 ; Eyan and see as to solicitors Investing grata- t>.Wilson,87N.T.471;41 Amer. Rep.381. Itonsly, ante. W See s. 12, Solicitors, ante. (/) Per Coleridge J., Blakemore v. (») See Wbarton on Kegllgence, a. Bristol and Exeter By. Co., 8 E. & B. 334, and sect. 69. 1035 ; M'Carthy v. Young, 6 H. & N. 329 ; (*) See OTrfe, Ch. II. a. 2. Farrant v. Barnes, 11 C. B. N. S. 563; 31 L. J. C. P. 137. 458 MORE THAN ORDINARY CARE. gence, ana possibly not even for that, but only for such wanton mischief as amounts to willful wrong (I). [372] Certainly where the defendant is doing a gratu- itous service to the plaintiff he is only liable for gross neg- ligence, as where the defendant drove the plaintiff gratuitously in his carriage (m). It was much argued in Mills V. Holton and other cases (n) whether the defendants were persons performing, a gratuitous service or not, so as to render them only liable for gross negligence. The defendants (the landlords) sent men to repair the plaintiff's (the tenant's) well, neither party being bound to repair. The workmen negligently destroyed the well. The court said it was a questipn for the jui-y whether the act was done gratuitously, or whether the defendants had undertaken to do the work properly. Martin, B., said that if they had merely done an act of kindness he thought they would incur no responsibility. But if a volunteer undertakes any work he must, as has been seen, exercise something more than ordinary care (o). (2) Ante. (n) Mills v. Holton, 2 H. & N. 14. (>») Moffat V. Bateman, Ii. B. 3 P. C. (o) Ante. 115. (m). Gratuitous Carriage. — Where freight Is delivered to a carrier, the acceptance and transportation thereof according to directions, trltfa- ont payment or promise of reward, na^e the carrier liable only for gross negligence. — Louisville & N. B. Co. v. Jerson (Alabama), 14 So. Bep. 873. See Higgins v. Cherokee B. Co., 73 Ga. 119. [373] CHAPTER V. CONTEIBDTORY NEGLIGENCE. The doctrine of contributory negligence is founded upon the maxim stated ante (a), " Injure non remota causa sed proxima spectatur," and " contributory negligence " inlaw is that sort of negligence on the part of a plaintiff which is the proximate and not the remote cause of the injury. Of course, in one sense every negligence which contributes at any time or in any degree is contributory negligence ; but the phrase has acquired a technical or legal meaning, and ill the legal sense is defined as above stated (6). No doubt j in order that the above definition may be fully appreciated, the word " proximate " must not receive a narrow interpretation, as being limited merely to the time when the negligence occurred ; nor must it be taken to mean merely that which was stated, ante, Ch. I., to be the meaning of ♦' proximate cause," viz., such a cause as would probably lead to injury, and which has led to it. The words "proximate cause" in the above definition must be taken to mean such a cause that its effect could not have been counteracted or avoided by the ordinary care of the defendant. Thus, if the defendant could not by ordinary care avoid the plaintiff's negligence, the plain- tiff's negligence is the proximate cause of the injury. The above definition may therefore be expanded by (a) Ob. I., p. 24, note (g). Ii. & "S. W. By. Co., poat, the piling of lb) Tbns, In tbe " Donkey Case," the track by tbe plaintiffs was moie Davis V. Mann, 10 M. S, W. 616, poit, xemote from tbe Injury to tbe bridge tbe plaintiff's act of tethering tbe than the defendant's act of pnshlng the donkey vras more remote from tbe Injury tmck against It. AndseeperWlUes, J., than the defendant's act of carelessly In TnS ti. Warman, 2 O. B. N. S, 767, In drlTlng over him, and therefore the Ex. Ob. 6 C. B. N. S. 673. plaintiff could recover. So in Badley v. (459) 460 CONTRIBUTORY NEGLIGENCE. saying that "contributory negligence" in law is that sort [374] of negligence which, being a cause of the injury, is of such a character that the defendant could not avoid the effects of it (c). ^ When the plaintiff has proved, according to his evi- dence, that the act of the defendant has caused the injury of which he complains, the defendant in his turn may prove that the plaintiff, by his own act contributed to cause the injury, and that the plaintiff might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence. But such proof is not in itself sufficient to destroy the plaintiff's claim, and the defendant must go farther and show that the plaintiff's (c) Some of the American Courts it In niinols it would seem that when once seems will consider the comparative the plaintiff's negligence is shown to be negligence of the plaintiff and defend- " proximate" the degrees of negligence ant. If the plaintiff has been slightly of plaintiff and defendant will not be ne^igent, he cannot recover unless the considered. Chicago By. v. Dimlck, 96 defendant has been grossly negligent; III. 42. Wharton on Negligence, 331. Bat even (c) The difficulty of deQhlng contributory negligence arises out of the doctrines laid down in Davies v, Mann, 10 M. & W. 646, and Butterfield V. Forrester, 11 East, 60. In Davies v. Mann, the plaintiff negligently left his donkey is the highway, and defendant in broad daylight ran over and killed it. It appeared that the defendant could, by the exercise of ordinary care, have avoided the accident, and it was held that plaintiff was entitled to recover. In Butterfield «. Forrester, defendant had placed an obstmction in the highway, and plaintiff, riding rapidly at dusk, rode against it and was injured. It was charged that if the plaintiff could have seen and avoided the obstruction by the exercise of ordinary care, there should be a verdict for the defendant, and the jury so found. One of these cases held that if the pUintlfC by the exercise of ordinary care could have avoided the injury he could not recover; and the other, that if the defendant could, by the exercise of ordinary care, have avoided the injttry, the plaintifi could recover. The seemingly ridiculous conclusions reached by these cases have been formulated into so-called rules that if the plaintiS's negligence is the proximate cause of the injury he cannot recover (Trow v. Vermont, etc., R. Co., 24 Vt. 487; Callahan tr. Warne, 40 Mo. 131; Wilds «. Hud- son River R. Co., 24 N. Y. 430; Portman v. City of Decorah (Iowa), 56 CONTRIBUTOEY NEGLIGENCE.- 461 [375] negligence was of such a character that the exercise of ordinary care upon the defendant's part would not have N. W. Rep. 512; Graham v. Pennsylvania Co., 139 Pa. St. 149; 27 W. N. C. 297; Stewart v. Newport News & M. V. E. Co., 86 Va. 988; 11 S. E. Rep. 885; Glover v. Scotten, 82 Mich. 369; 46 N. W. Rep. 936; Broschart c. Tattle, 59 Coan. 1; 21 Atl. Rep. 925; Newcomb o. Boston Protective Department, 146 Mass. 596; 16 N. E. Rep. 556. The contributory begllgence need not be the sole cause of injury to bar recovery, for it is sufficient if it be one of the concurring efficient causes.— North Birmingham St. R. Co. o. Calderwood, 89 Ala. 247; 7 So. Rep. 360. See Oil City Fuel Supply Co. v. Boundy, 122 Pa. St. 449; 15 Atl. Rep. 865. If the defendant's negligence is the proximate cause of the Injury the plaintiff can recover. — Manly v. Wilmington, etc., R. Co., 74 N. C. 655; Steele v. Burkhardt, 106 Mass. 59; Kerwhacker ». Cleveland, etc., R. Co., 3 Ohio St. 172; Whalen «. St. Louis, etc., E. Co., 60 Mo. 323; Fosters. Swope, 41 Mo. App. 139; Campbell o. McCoy, 3 Tex. Civ. App. 298; 23S. W. Rep. 34; Czezewzka v. Benton-BeUefontaine Ry. Co., 121 Mo. 201; 25 S. W. Rep. 911. The definition in the text seems to be founded upon the doctrine of Davies v. Mann ; that of the American courts upon the doctrine of But- terfleld v. Forrester. To constitute contributory negligence. It is said there must be a want of ordinary care on the part of the plaintiff and a proximate connection between that and the Injury (2 Thomp. on Neg. 1149, 1151), and Mr. Beach defines it to be " such an act or omission on the part of a plaintiff amounting to a want of ordinary care as, concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of." — Beach on Contributory Negligence, p. 7, citing Towanda R. Co. v. Manger, 5 Denio, 255; 49 Am. Dec. 239; Dan- ner ». South Carolina R. Co., 4 Rich. L. 329; 55 Am. Dec. 678; Balti- more, etc., R. Co. V. WoodrDft, 4 Md.442; 59 Am. Dec. 72; O'Brien v. McGlinchy, 68 Me. 552; Neanow v. Ullech, 46 Wis. 590; Harris v. Union Pacific R. Co., 4 McCrary, 454; Louisville & N. R. Co. v. Hurt, 101 Ala. 34; 13 So. Rep. 130; O'Connor©. North Trunkee Ditch Co., 17Nev. 245; 30 Pac. Rep. 882; McKeller v, Tp. of Monitor, 78 Mich. 485; 44 N. W. Bep. 412. The conduct of the plaintlfC, to constitute contributory negligence, must have been of a character to have essentially contributed to the injury. — Phillips v. Railway Co., 64 Wis. 476; 25 N. W. Rep. 644; Mont- gomery Gas-Light Co. v. Montgomery & E. Ry. Co., 86 Ala. 372; 6 So. Rep. 735; Gerslle v. Union P. Ry. Co., 23 Mo. App. 361; Chicago, St. P. & K. C. Ry. Co. B. Chambers, 68 Fed. Kep. 148. Thus in Somerset & C. E. Co. r. Galbraith (109 Pa. St. 32), it was held that the fact that a con- ductor of a freight train who was forward warning the engineer when 462 CONTRIBUTORY NKGLIGBNCE. [376] prevented the plaintiff's negligent act from causing the injury (d), and this is the sort of negligence which the law calls " contributory negligence." id) Eadley». London & North- West- negligent, defendant's^lver could have ern Ey. Co,,Ii, B. 1 App. Cas.751;46L.J. avoided). See a cnrions case of Button 573 (pashing an overloaded truck against v. Hudson River Co., 18 N. Y. 268, where the top of the bridge) ; Daviesv. Mann, defendant ran over a drunken nan, 10 M. & W. 646 (donkey case) ; Tuff v. when he might, by ordinary care, have Warman, 5 O. B. N. S. 573 (steamer run- avoided him. Gnnter v. Wicker, 85 N. ning down a barge); Springett v. Ball, C. 310; Colorado By. v. Holmes, S Col. 4 F. & F. 472 (foot passenger crossing, 197. killed, while the rnle of the company required him to remaia in the middle of the train, did not preclude recovery against the company. See Grabrues v. Klein C^d.), 31 Atl. Bep. 504; Southern Bell, etc., Co. V. Watts, 66 Fed. Eep. 460. The rule announced in Davies v. Mann, is, however, not ignored by American courts. It is applied in cases where the defendant, after hav- ing become aware of the plaintiff's negligence, fails to exercise ordinary care in avoiding it. — 2 Thompson, 1157; Barker v. Savage, 45 N. T. 191, 194; Brown v. Lynn, 31 Pa. St. 510; Northern, etc., E. Co. v. Price, 29 Md. 420; Locke v. First Diy., etc., B. Co., 15 Minn. 350; Nelson v. Atlan- tic, etc., B. Co., 68 Mo. 593; O'Keefe ». Chicago, etc., B. Co., 32 la. 467; Morris v. Chicago, etc., B. Co., 45 la. 29; Eckert v. St. Louis, etc., E. Co., 13 Mo. App. 352; Welsch v. Jackson Co. Horse E. Co., 81 Mo. 466; Baltimore Traction Co. v. Wallace, 77 Md. 435; 26 Atl. Bep. 518; Pan- nell V. Nashville, etc., B. Co. (Alabama), 12 So. Eep. 236; Pope v. Kan- sas City Cable By. Co., 99 Mo. 400; 12 S. W. Eep. 891; Illinois Central E. Co. V. Larson, 42 111. App. 264 ; Denver & B. P. Bapid Transit Co. v. Dwyer, 20 Colo. 132; 36 Pac, Eep. 1106; Eichmond & D. By. Co. ». Yea- mans, 86 Va. 860; 12 S. B. Bep. 946; Hays v. Gainesville St. By. Co., 70 Tex. 602; 8 S. W. Eep. 491; Union Pac. By. Co. v. Mertes, 39 Neb. 448; 58 N. W. E^. 105, affirming 35 Neb. 254; 52 N. W. Eep. 1099; Carrico v. West Virginia, etc., By. Co., 35 W. Va. 389; 14 S. E. Eep. i2. As where persons have trespassed upon railroad tracks and have been injured by the negligence of the company's servants, wJio could by the ex- ercise of ordinary care have avoided the injury. — Whart. on Neg., § 329; 2 Thomp. on Neg. 1156; Mobile & O. E. Co. v. Watly, 69 Miss. 145, 13 So. Eep. 825; Christian v. Illinois Cent. E. Co., 71 Miss. 237; 15 So. Eep. 71; Eichmond & D. B. Co. v. Didzoneit, 1 App. D. C. 482; St. Louis, I. M., etc , B. Co. v. Wilkerson, 46 Ark. 613; Sabine &E. T. By. Co. V. Hanks, 73 Tex. 323; 11 S. W. Eep. 377. In Union Pac. B. Co. V. Mertes, supra, plaintiff was not only unlawfully on the track but Was negligent in not looking for an engine before crossing the track, and it was held that he was entitled to recover, the engineer having failed to stop his engine so as to avoid the accident, as he could have done. COMPAKATIVE NEGLIGENCE. 463 [377] Another and a different doctrine has sometimes prevailed, viz., that the plaintiff must be punished for his Wheie cattle have been suffered to stray upon railroad tracks and have been run over by passing trains. — 2 Thomp. on Neg. 1158; Cleveland, etc., R. Co. V. Elliott, 4 Ohio St. 475 ; Trow v. Vermont R. Co., 24 Vt. 494 ; Isbell V. N. Y., etc., R. Co., 27 Conn. 393; Cleveland, C. C. & S. L. R. Co. V. Ducharme, 49 111. App. 520; Louisville & N. R. Co. v. Rice (Ala- bamaj, 14 So, Rep. 639 ; Jewett ». Kansas City, etc., Ry. Co., 50 Mo. App. 547. So as to trespassing dog. — St. Louis, A. & T. Ry. Co. v. Hanks, 78 Tex. 300; 14 S. W. Rep. 691. Gomparative Negligence. — As seen, ante, p. 24, the tendency of the American decisions has been strongly towards abrogating the common law distinctions of degrees of negligence. It follows, therefore, that the doctrine of comparative negligence has been frequently denied In the courts of this country. Alabama. — The doctrine of comparative negligence does not obtain in this State. — Gothard «. Alabama, etc., R. Co., 67 Ala. 114; Mont- gomery & E. Ry. Co. V. Chambers, 79 Ala. 338. But this statement is with the qualification of several late decisions which hold, that the injured person's contributory negligence may be overcome by the wanton, reckless and intentional negligence of the defendant. — Louisville & N. R. Co. u. Hurt, 101 Ala. 34; 13 So. Rep. 130; Carrington v. Louisville & N. R. Co., 88 Ala. 472; 6 So. Rep. 910; Brown a. Scarboro, Ala. 289. Arizona. — Denied. — Prescott & A. C. Ry. Co. v. Ress (Ariz.), 28 Pac. Rep. 1134. Arkansas. — Denied. — St. Louis, I. M., etc., Ry. Co. v. Ledbetter, 45 Ark. 246; Same v. Rosenberry, 45 Ark. 256. California. — Approved. — Holmes v. South Pac. Ry. Co., 97 Cal. 161; 31 Pac. Rep. 834. Connecticut. — Denied. — Rowen v. New York, etc., R. Co., 59 Conn. 364; 21 Atl. Rep. 1073. Kor«ia.— Approved. — Florida Southern Ry. Co. v. Hirst, 30 Fla. 1; 11 So. Rep. 506. Georgia. — The doctrine is said to obtain in Georgia (Wharton on Neg., § 334) , and this might probably be inferred from the language of the court in Macon, etc., R. Co. v. Davis, 27 Ga. 113; Rome v. Dodd, 68 Ga. 238, and Augusta, etc., R. Co. v. McElmurry, 24 Ga. 76; but there are cases which hold that the slight negligence of the plaintiff, while not a defense, when the negligence of the defendant is gross, may go in mitigation of damages. — Flanders v. Meath, 27 Ga. 368; Atlanta, etc., R. Co. v, Ayres, 3 Ga-. 12. So while the doctrine remains to some extent unsettled In this State (2 Thomp. on Neg. 1168; Beach on Cont. Neg. 96; Atlanta, etc., R. Co., V. Wyley, 65 Ga. 121; Western & A. R. Co. v. Bloom ingdale, 74 Ga. 604) 464 CONTBIBUTOBT NEQLIGENCK. negligence [378J by being left without remedy for his injury, and this though the defendant might with ordinary the late case of Central B. & B. Co. v. Newman (94 Ga. 560 ; 21 S. E. Bep. 219), practically establishes It as the law. , Illinois. — According to the Illinois doctrine, if the negligence of the plaintiff is slight and that of the defendant gross, ormore prope'rly, if the negligence of the plaintiff is slight compared with that of the defend- ant, the plaintiff can recover. In Galena, etc., B. Co. v. Jacobs 20 111. 478, where the doctrine was first announced, the court said; "The true doctrine, therefore, we think is that in proportion to the negligence of the defendant, should be meas- ured the degree of care required of the plaintiff, that is to say, the more gross the negligence manifested by the defendant the less degreei of care will be required of plaintiff to enable him to recover. * * * We say then that in these or in like cases, the degrees of negligence must be measured and considered, and whenever it shall appear that the plaintiff's negligence is comparatively slight and that of the defendant gross, he shall not be deprived of his action." And this rule has been followed with little variation by nearly all subsequent cases. See Galena, etc., B. Co. V. Jacobs, 20 MI. 478 ; Chicago By. Co. v. Diraick, 96 111. 42 ; Hayward V. Miller, 94 III. 349; C. B. & Q. B. Co. v. Johnson, 103 111. 512; The Wa- bash, etc., B. Co. V. Wallace, 110 111. 114 ; City of Chicago v. Stearns, 105 111. 557; Atchison, T. & S. F. E. Co. v. Feehan, 149 111. 202; 36 N. E. Bep. 1036; Toledo, St. L. & K. C. B. Co. v. Cllne, 135 111. 41; 25 N. E. Bep. 846; Louisville, N. A. & C. By. Co. a. Johnson, 44 111. App. 56; City of Beards- town V. Smith, 150 111. 169; 37 N. B. Bep. 211; Lake Sho?e & U. S. By. Co. V. O'Conner, 115 111. 254; Garfield Mfg. Co. v. McLean, 18 lU. 447; Christian v. Erwin, 125 111. 619; 17 N. E. Bep. 707; Chicago & A. E. Co. V. Fietsam, 123 111. 518; 15 N. E. Bep. 169; WiUard v. Swanson, 18 III. 381; 18 N. E. Bep. 548; Fisher v. Cook, 125 111. 280; 17 N. E. Bep. 763; Tomle V. Hampton, 129 111. 379 ; 21 N. E. Bep. 80O; Quincy, H. Ey. & C. Co. V. Gruse, 26 111. App. 397; Chicago, B. & Q. B. Co. v. Warner, 22 111. App. 4G2; affirmed 123 111. 38; 14 N. E. Bep. 206; City of Galesburg v. Benedict, 22 111. App. 111. By a review of these cases it will be observed that while the successful plaintiff is always required to exercise ordinary care, his ordinary care is not denied by proof of slight negligence. The doctrine seems, there- fore, to be firmly established in this State. See Farmelee v. Farro, 22 111 App. 467; Chicago & N. W. By. Co. v. Des Lauriers, 40 111. App. 664 City of Champaign v. Jones, 32 111. App. 179; 132 111. 304; 23 N. E. Eep 1125; Village of Jefferson v. Chapman, 127 111. 438; 20 N. E. Bep. 33 Chicago & N. W. By. Co. v. Dunleavy, 129 111. 132; 22 N. E. Bep. 15 Lake Shore & M. S. By. Co. v. Johnson, 135 111. 641; 26 N. E. Bep. 510; North Chicago B. M. Co. v. Johnson, 114 111. 57; 29 N. E. Bep. 186j North Chicago St. By. Co. v. Williams, 140 111. 276; 29 N. B. Bep. 672; Louis- COMPAKATIVE NEGLIGENCE. 465 care have prevented it. But this seems to be very harsh and unjust towards the plaintiff. If the plaintiff's negli- ville, E. & St. L. C. R. Co. v. Dulaney, 43 111. App. 297; Catlett v. Tonng, 38 111. App. 198; 143 111. 74-; 32 N. E. Eep. 447. But see City of Lanark 0. Dougherty, 153 111. 163; 88 N. E. Eep. 892. Indiana. — Terre Haute, etc., E. Co. o. Graham, 95 Ind. 286; Keefe v. Chicago & N. "W. By. Co. (Iowa), 60 N. "W. Eep. 503. But see Ivens v. Cincinnati, W., etc., Ey. Co., 108 Ind. 27. Kansas. — In this State the doctrine is followed intTnlon Pacific E. Co. V. BoIIins, 5 Kan. 167; Kansas, etc., R. Co. ■». Eitzsimmons, 18 Kan. 34; Mason v. Missouri, etc., E. Co., 27 Kan. 83; Sawyer ir. Saner, 10 Kan. 466; Wichita & W. E. Co. v. Davis, 87 Kan. 743; 16 Pac; Eep. 78; and denied in Kansas, etc., E. Co. o. Peavey, 29 Ka"n. 169; Chicago, K. & N. Ry. Co. V. Brown, 44 Kan. 384 ; 24 Paci Eep. 497 ; Howard v. Kansas City, etc., E. Co., 41 Kan. 403 ; 21 Pac. Eep. 267. Kentucky. — In this State the doctrine prevails only to the extent of holding,' under the statute (Gen. St. C. 67, § 8), that the defendant is liable for gross negligence, the plaintiS having contributed thereto, where the injury results in death. — Illinois Cent. E. Co. v. Dick, 91 Ky. 434; 15 S. W. Eep. 665; Jones v. Louisville & N. E. Co., 82 Ky. 610; Louisville & N. R. Co. ». Howard, 82 Ky. 212 ; Kentucky Cent. Ey. Co. e. Smith, 93 Ky. 449; 20 S. W. Rep. 392; Same v. Thomas, 79 Ky. 160; 42 Am. Rpp. 208. The gross neglect of defendant must be alleged to have been " willful." — Louisville & N. R, Co. v. Coniff (Ky.), 27 S. W. Eep. 866. Maryland. — Approved. — Baltimore & O. E. Co. «. Kean, 65 Md. 394. See Eenneman v. Holden, 75 Md. 1 ; 22 Atl. Eep. 1049. Massachusetts. — Denied. — Marble v. Eoss, 124 Mass. 44; Taylor o. Carew Mfg. Co., 140 Mass. 150. Michigan. — Approved. — Schindler o. Milwaukee, etc., Ey. Co., 87 Mich. 400; 49 N. W. Eep. 670; Thompson v. Elint, & P. M. Ry Co., 57 Mich. 300. Mississippi. — Approved. — Christian v. Illinois Cent. E. Co., 71 Miss. 237; 12 So. Eep. 710. Missouri. — Denied. — Hurt e. St. Louis, etc., Ey. Co., 94 Mo. 255; 7 S. W. Rep. 1, 5; Hnckshold v. St.iouis, etc., Ey. Co., 90 Mo, 548; Tay- lor V. Missouri P. Ey. Co., 86 Mo. 457; Brooks v. Hannibal & St. J. E. Co., 35 Mo. App. 571; Thorpe v. Missouri P. Ey. Co., 89 Mo. 650; Dowllng V. Allen, 88 Mo. 293. But see Kelley v. Union Ey. & T. Co., 18 Mo. App. 161; Bergman v. St. Louis, etc., Ey. Co., 88 Mo. 678. JVeftrasAa.— Approved. — Village of Orleans ?;. Perry, 24 Neb. 831; 40 N. W. Eep. 417. jfj'ew Jersey.— Denied. — Pennsylvania Co. v. Eighter, 42 N. J. L. 180; Hoboken L. & J. Co. v. Lally, 48 N. J. L. 604. New York. — Denied. — A. L. & J. J. Reynolds Co. o. Third Ave. E. 30 466 CONTBIBUTORr NEGLIGENCE. gence is of so slight a character that it is in no sense the proximate or efficient cause of the injury, and the defend- Co., 28 N. T. S. Eep. 734; Solomon v. Manhattan Ry. Co., 103 N. T. 437; 66 Am. Bep. 843. See Clark v. New York, etc.,''E. Co., 40 Hun, 605. Pennsylvania. — Denied. — Potter v, Warner, 91 Pa. St. 362 ; 36 Am. Bep. 668; Bailroad v. Norton, 24 Pa. St. 469; Mon'ongahela City v. Fischer, 111 Pa. St. 9; 66 Am. Bep. 241; Long v. Tp. of MUford, 137 Pa. St. 122; 20AtI. Bep. 426. South Carolina. — Denied. — Darwin v. Charlotte, etc., E. Co., 23 S. C. 631 ; 66 Am. Eep. 32. Tennessee. — Denied. — East Tenn.,'V. & G. By. Co. v. Aiken, 89 Tenn. 246; 14 S. W. Eep. 1082; Same v. HnU, 88 Tenn. 33; 12 S. W. Bep. 419. Thus, in a recent case it was said by the court: "although the injured party may contribute to the injury by his own carelessness or wrong- ful conduct, yet If the act or negligence of the party inflicting the injury was the proximate cause of the injury the latter will be liable in damages, the negligence or wrongful act of the injured person being taken into consideration by way of mitigation in estimating the dam- ages." — Louisville, etc., B. Co. '». Fleming, 14 Lea, 128. See East Tenn., etc., E. Co. V. Fain, 12 Lea, 36; East Tenn., Va., & G. E. Co. v. Gurley, 12 Lea, 66, 66. Texas. — Denied. — Galveston, H. & S. A. Ry. Co. v, Thornsberry (Texas), 17 S. W. Bep. 621; Houston, etc., E. Co. v. Gorbett, 49 Tex. 673; McDonald v. International & G. N. By. Co., 86 Tex. 1; 22 S. W. Bep. 939; Turner v. Ft. "Worth & D. C. By. (Tex. Civ. App.), 30 S. W. Eep. 263; Gulf, C. & S. F. By. Co. v. Bnford, 2 Tex. Civ. App. 116; 21 S. W. Rep. 272; Boyd v. Burkett (Tex. Civ. App.), 27 S. W. Bep. 223; Galf, Colorado, etc.. By. Co. v. Wallen, 66 Tex. 668; Texas & N. O. By. Co. V. Brown, 2 Tex. Civ. App. 281 ; 21 S. W. Eep. 424. But see Houston & T. C. B. Co. V. Carson, 66 Tex. 345; McDonald ». International & G. N. E. Co. (Tex. Civ. App.), 21 S. W. Bep. 774; Browne. Sullivan, 71 Tex. 470; 10 S. W. Eep. 288. Virginia. — Denied. — Richmond & D. B. Co. v. Fickleseimer, 86 Va. 798; lOS. E. Bep. 44. West Virginia.— Denied. — Overby o. C. & O.. By. Co., 37 W. Va. 624; 16 S. E. Bep. 813. See Carrico v. West Va. C. & P. By. Co., 36 W. Va. 389; 14 S. E. Rep. 12. Wisconsin. — Denied. — Cunningham v. Lyness, 22 Wis. 246. But where the defendant's negligence amounts to recklessness he is respon- sible to a plaintifC who failed to exercise ordinary case. — Little v. Super- ior R. T. Ry. Co., 88 Wis. 402; 60 N. W. Rep. 705. Federal Courts. — Approved. — Alaska Treadwell Gold Min. Co. ». Whelan, 64 Fed. Bep. 462; The Max Morris, 28 Fed. Bep. 881. U. S. Supreme Court. — Approved. — Inland & S. O. Co. v. Tolson, 139 U.S. 651; 11 Sup. Ct. Eep. 653. CONTEIBDTORY NEGLIGENCE. 467 ant can avoid its effects, it seems hard that the plaintiff's injury should remain unredressed; if his negligence is of a grave character, it would probably be such that the defendant could not avoid its effects, and then the plaintiff would be able to recover. Moreover, it is impossible to bay how much negligence should disentitle the plaintiff to recover, and to say that any negligence, however trivial, should disentitle him would be obviously unjust. But the rule as laid down in the text presents no such difficulty, for by it the plaintiff becomes disentitled to recover only where the defendant could not by ordinary care avoid the effect of the plaintiff's act, which gives a practical test in each case of the kind and degree of negligence which should disentitle the plaintiff to recover. It should seem that the same doctrine should be held to apply with respect to the negligence of third parties. It may be difficult in the particular case before the court to determine what is the proximate cause of the damage ; but it is a difficulty which it is the duty of the court to solve as well as it can, and if it arrives at a wrong conclusion, still no injustice is done; but, upon the other hand, to adopt the doctrine that the negligence of third parties is no ex- cuse, would be, in some cases, to do manifest injustice. Where the substantial and proximate cause of the injury is the act of a third party (an act the effects of which the [379] defendant could not avoid), the defendant, it is submitted, ought to be excused. It might be that a very serious injury was almost entirely due to the third party, yet because such party is bankrupt the plaintiff has selected the defendant, who had very little to do with the injury, and could not avoid doing it, and has recovered heavy damages against him. It is true that Mr. Campbell, in his admirable sketch of the law of negligence, says that contributory negligence of a third party is no defense, and the same will be found in many text-books (see Shearman, para. 27; but see Wharton, paras. 148 — 155; and see 468 CONTEIBUTOBY NEGLIGEXCE. Addison on Torts, 5th ed., by L. W. Cave, Q. C, where the difficulty is' mentioned) ; and the cases usually cited for that proposition are those which will be found, ante, pp. 17 — 20, Chapter I., but, as there stated, they appear, on examination, not to warrant such a conclusion. Indeed, they would seem to assume that the negligence of a third party would be an excuse if his Act were the proximate cause of the injury, which in those cases was held not to be the fact. And, on the other hand, the cases of Ayles v. South Eastern Eailway Co. (e), and Daniel v. Metropolitan Railway Co. (f), would seem to indicate that the negli- gence of a third party might afford an answer. It must be owned, however, that if the judgment in Hughes v. Macfie, and Abbott v. Macfie (^g), cannot be otherwise explained, that case is an authority for saying that the negligence of a third party is no excuse. In that case, Hughes, an infant, had negligently pulled down the flap of a cellar, negligently left almost upright by the defend- ant. Judgment was given on a motion for a new trial, and it did not appear whether Abbott (another infant), who brought the second action, was jointly engaged with Hughes in the negligence. It was held that Hughes [380] could not recover (probably because his act was the proximate cause), and that if Abbott was jointly engaged with him neither could Abbott recover ; but that if he was not jointly engaged he could recover from the defendant, as the injury was the result of the joint negli- gence of the defendant and Hughes. Now if from the judgment in the first action it is to be inferred that Hughes' act was the proximate cause, we have here a judgment showing that the defendant would be liable, notwith- standing cle^r contributory negligence in a third person. But it may be doubted whether, in the first case, the judg- (e) Ayles v. Sonth Bastern By. Co., L. B. 6 Bng. & It. App. 15; «0 L. J. C. F. Li. E. 3 Ex. 146 ; 87 L. J. Ex. 104. 121. (/) Daniel v. Metropolitan Ey. Co., (,g) Hnglies ». Macfte, 2 H. & C. 714. • CONTRIBUTORY NEGLIGENCE. 469 ment proceeds upon the ground that Hughes' act was the proximate cause. It seems to have beeu rather on this ground that quoad Hughes, who was a volunteer, the defendant bad not been guilty of any negligence at all, but ^uoad! innocent persons he had. Pollock, C. B., says (hat if Hughes had left the flap alone it would not have fallen, and that if the coat of some passer-by had caught it such passer-by might recover (or, in other words, that quoad some innocent party there was negligence in the defendant), and »' '.^uld follow that if Hughes, the volun- teer, and the defendant quoad Abbott (an innocent party) had been jointly guilty of a tort, each would be separ- ately liable for the whole of the damages upon general principles (/^). Probably the difficulty is not of much consequence in practice, because as soon as it is seen that the act of a third party is the proximate cause of the injury then the act of the defendant becomes remote, and is no longer negligence, unless, indeed, where both_acts are equally proximate, which must be very rare. In Burrows v. March Gas Co. (») the judgment of the Exchequer Chamber went mainly on the ground that the defendants had contracted to supply proper piping and had not done so, and that it was immaterial that some one else [381] had been negligent; but it was also said that they ought to have taken care that the apparatus was safe and sufficient. In the court below (k) the judgment of Kelly, O. B., and Figott, B., turned entirely on negligence. Kelly, C. B., said: " If a man sustain an injury from the separate negligence of two persons employed on his prem- ises to do two separate things, he can, in my opinion, (A) See post. Oh. VHI., Damages.— (i) Bnnows o. March Gas Co., L. B. 7 [See Chicago, St F. & K. 0. By. Co. c. Ex. 96. Chambers, 68 Fed. Bep. 148; Follman v. (Is) Borrows v. March Gas Co., L. B. 5 Mankato, 35 Minn. 523; Trowbridge v. Ex. 67; Lonte, Proximate Canse]. DanviUe Street Car Co. (Va.), 19 S. B. Bep. 780. See ante, p. 39.] 470 CONTEIBUTOEY NEGLIGENCE. maintain an action against both or either of the wrong- doers." It is well in considering the doctrine of " contributory negligence," to remember that after the plaintiff has shown [382] that" the defendant has been negligent, that then the defendant has to show — first, that the plaintiff has been [383] negligent in respect to the matter complained of, and might have avoided the consequence of the defendant's negligence ; [384] secondly, that the plaintiff's negligence has been of such a character that the defendant could not avoid its effects ( () . (Z) The bnrden of proTiug contilbn- There seems to be a great difference of tory uegUgence Is upon the defendant, opinion in the American courts upon and Is not for the plaintiff in the first this point. See Bneschlng v. St. Lonis Instance to show that he has not been Gas Co., 73 Mo. 219; 39 Amer, Bep. SOS; gallty ot contributory negligence. Hart v. Hudson, 81 X. T. 66. Burden of Proof. — That the burden of proof is on the defendant to establish plaintiff's contributory negligence is the rale in: -^ Alabama. — Smoot t>. Wetumpka, 24 Ala. 112'; Mobile, etc., B. Co. v. Crenshaw, 65 Ala. 569; Montgomery Gas-Light Co. v. Montgomery & E. By. Co., 86 Ala. 372; 5 JSo. Bep. 736; O'Brien v. Tatum, 84 Ala. 186; i So. Bep. 158; Birmingham Mineral B. Co. v. Wilmer, 97 Ala. 166; 11 So. Bep. 886; Bromly i;. Birmingham M. B. Co. (Ala.), 11 So. Bep. 341; Georgia Pac. By. v. Davis, 92 Ala. 300; 9 So. Bep. 252; North Birmingham St. E. Co. ■». Calderwood, 89 Ala. 247; 7 So. Bep. 360. Arisona. — Lopez v. Central Ariz. Min. Co., 1 Aiiz. 464 ;' Hobson v. New Mexico & A.' B. Co. (Ariz.), 11 Fac. Bep. 646. .irtonsos.— Texas & St. L. By. Co. v. Orr, 46 Ark. 182; Little Bock & Ft. Sj By. Co. V. Atkins, Jd. 428. California. — McQuilken o. Central Pac. B. Co., 50 Cal. 7; Nehrbas ». Centralj etc., B. Co., 62 Cal. 320; McDongall v. Central, etc., B. Co., 63 Cal. 431. CoZorado.— Sanderson ». Frazier, W. C. Bep., Feb. 19, 1885; Denver & R. G. B. Co. ■». Eyan, 17 Colo. 98; 28 Pac. Bep. 79; Platte & Denver C. & M. Co. o. Dowell, 17 Colo. 376 ; 30 Pac. Bep. 68. Dakota.— Sanders s. Eeister, 1 Dak. 161 ; 46 N. W. Bep. 680. District of Columbia. — Harmon v. Washington & G. B. Co., 7 Mackey, 255; Tolson v. Inland & S. C. Co., 6 Id. 39. Georgia. — City Council of Augusta v. Hudson, 88 Ga. 699; 15 S. E. Bep. 678; Thompson v. Central, etc., B. Co., 64 Ga. 609; corttra, Campbell V. Atlanta, etc., B. Co., 63 Ga. 488. CONTEIBDTOEY NEGLIGENCE — BDRDEN OF PROOF. 471 Now it is obvious that the defendant may often fail in proving the first proposition, just as plaintiff may fail in Kansas. — Kansas, etc., E. Co. v. Pointer, 14 Ean. 37; Kansas, etc., B. Co. «. Fhillibert, 25 Kan. 583; St. Louis & San Francisco Ry. Co. v. Weaver, 35 Kan. 412; 11 Pac. Eep. 408. Kentmky. — Padncah, etc., E. Co. v. Hoehl, 13 Bush. 41; Kentucky, etc., R. Co. V. Thomas, 79 Ky. 160; Favre v. Louisville & N. E. Co., 91 Ky. 541; 19 S. W. Rep. 370. Maryland.— Freeh v. Philadelphia, etc., R. Co., 39 Md. 574; County Commissioners v. Burgess, 61 Md. 29; State to use of Bacon v. Balti- more & Potomac R. Co., 68 Md. 482. Minnesota. — Hocum v. Weitherick, 22 Minn. 152. Missouri. — Hicks v. Pacific R. Co., 65 Mo. 34; Buesching v, St. Louis Gas-Light Co., 73 Mo. 219; 39 Am. Rep. 603, note; Fulks v. St. Louis & S. F. Ey. Co., Ill Mo. 335; 19 S. W. Eep. 818; Moberly v. Kansas City, etc., Ey. Co., 98 Mo. 183; 11 ^. W. Rep. 569; Murray o. Missouri Pacific Ey. Co., 101 Mo. 236; 13 S. W. Eep. 817; Hudson v. Wabash W. Ry. Co., 32 Mo. App. 667; MitcheU v. City of Clinton, 99 Mo. 153; 12 S. W. Eep. 793. Contributory negligence is an afSrmatire defense \rhich must be speciaUy pleaded and proved. — Donovan v. Hannibal & St. Joe R. Co., 89 Mo. 147; 1 S. W. Eep. 232; Eeitel v. St. Louis C. & W. Ry. Co., 28 Mo. App. 657 ; St. Clair v. Missouri Pac. Ey..Co., 29 Mo. App. 76 ; Crump- ley V. Hannibal & St. J. R. Co., Ill Mo. 152; 19 S. W. Rep. 820; Neier V. Missouri Pacific Ry. Co. (Mo.), IS. W. Rep^87. Jfontana.—; Nelson v. City of Helena (Mont.)tf39 Pac. Rep. 905. mbraska.— Cltj of Lincoln o. Walker, 18 Neft).224; 20 N. W. Rep. 113; Anderson ^v. Chicago, B. & Q. R. Co.,<;^5 Neb. 1^ 62 N. W. Rep. 840; City of Omaha v. Ayer, 32 Neb. 375; 49 N. W. Rep.1^5. New Hampshire. — Smith v. Eastern, etc., R.i'feo., m.N. H. 366. NeiB Jersep. — New Jersey Express Co. Ji. Nlchols!|f32 N. J. L. 166; 33 N. J. L. 4'34. ' .-, Bhode IsUmd.— CasaiAy v. AngeU, 12 R. 1^447.'' V South Carolina. — Carter v. Columbia, etc., R. Co., 19 S. C. 20. j^ee Simms v. South Car. Ry. Co., 26 S. C. 490; 2 S. E. Rep. 486; 27 S. C. 268; 3 S. E. Rep. 301; Whaley v. Bartlett, 42 S. C. 41^; 26.^. E. Rep. 745. V South Dakota.— SmlOi o. Chicago, etc., Ry. Co., 4 S. D. 71;7S5 N. W. Rep. 717. > ' Texas. — Dallas Consolidated Traction Ry. Co. v. Hnrley (Tex. Civ. App.), 31 S. W. Rep. 73; Gulf, C. & S. F. Ry. Co. v. Shieder (Tex.), 30 S. W.Bep. 902; Dallas, etc., R. Co.«. Spicker, 61 Tex. 427; contra, Texas, etc., R. Co. V. Croveder, 63 Tex. 502. See Gulf, C. & S. F. By. Co. v. Scott, 7 Tex. Civ. App. 619; 27 S. W. Rep. 827. rirjinia.— South- West Va. Imp. Co. v. Andrew, 86 Va. 270; 9 S. E. Rep. 1016. 472 CONTKIBUTORY NEGLIOKNCE. proving the negligence of the defendant, and a great number of cases will be found in the books where the Washington.— Spuniei v. Front St. Cable By. Co., 3 Wash St. 659; 29 Fac. Bep. 349. West Virginia.— SheS v. City of Hnutington, 16 W. Va. 317; Fowler ». Baltimore & O. E. Co., 18 W. Ta. 679. Wisconsin. — Frideanx v. Mineral Point, 43 Wis. 513; Bandall t>. N. W. T. Co., 54 Wis. 147; Hoth v. Peters, 65 Wis. 406; Seymer c. Lake, 66 Wis. 651; Jung v. City of Stevens Point, 74 Wis. 547; 43 N. W. Bep. 613. Federal Courts. — Northern Fac. E. Co. v. Lewis, 61 Fed. Bep. 658 ; 2 C. C. A. 446 ; 7 TJ. S. App. 254 ; Horn v. Baltimore & O. B. Co., 64 Fed. Bep. 301. U. 8. Supreme Court.— Hoagh v. Bailway Co., 100 U. S. 213; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 661; 11 Sup. Ct. Bep. 653. But defendant may avail himself of the evidence of the plaintiff. — Wash- ington & G. B. Co. V. Tobriner, 147 tT. S. 671; 13 Sup. Ct. Bep. 557. That plaintifi must show negligence on the part of defendant, and that he was in the exercise of dne care himself is the role in : — Indiana.— Ijoke Shore & M. S. By. Co. v. Finchin, 112 Ind. 692; 13 N. E. Bep. 677; City of Columbus v. Strassner, 124 Ind. 482; 25 N. E. Bep. 65; Alexandria M. & E. Co. v. Fainter, 1 Ind. App. 587; 28 N. E. Bep. 113; Cincinnati, W- & M. By. Co. v. Stanley (Ind. App.), 27 N. E. Bep. 316; Cincinnati, H., etc., B. Co. v. Butler, 103 Ipd. 31; Louisville, N. A. & C. By. Co. V. Saadford, 117 Ind. 266; 19 N. B^ep. 770; Kentuc^ & I. B. Co. V. Hall, 126 Ind. 220; 26 N. E. Bep. 219-^athaway v. Toledo, etc., B. Co., 46 Ind. 26, 30; Louisville, etc., B. Coy^. Head, 80 Ind. 117; Lyons v. Terre Haute, etc., B. Co., 101 Ind. 41^'' In- this State the declaration must aver the absence of negligence on the part of the plaintiff. — Bogers V. Overton, 87 Ind. 411; Pennsylvania Co. v. Gallentlne, 77 Ind. 322. Jowa. — Murphy v. Chi^go, etc., B. Co., 46 la. 661; Slosson v. Bur- lington, etc., B. Co., 55 la. 294; Babe v. Sommerbeck (Iowa), 63 N. W. Bep. 458. But see Baymond v. Burlington, etc., B. Co., 66 la. 162. Louisiana. — Moore v. City of Shreveport, 3 La. Ann. 645; Byan v. Louisville, etc., By. Co., 44 La. Ann. 806; 11 So. Bep. 30; Delkman v. Morgan's, etc., Co., 40 La.'^Ann. 787; 5 So. Bep. 76; Clements v. Louis- iana E. L. Co.-, 44 La. Ann. 692; 11 So. Bep. 61. Maine. — Gleason v. Bremen, 50 Me. 222, 224; Benson v. Tltcomb, 72 Me. 31; State v. Maine Central B. Co., 76 Me. 357; Mosher v. Inhabitants of Smithfleld, 84 Me. 334; 24 Atl. Bep. 876. Massachusetts. — Hinckley v. Cape Cod B. Co., 120 Mass. 267, 262 ; Stock V. Wood, 136 Mass. 363. The burden of proof is on defendant to show gross or willful negligence on the part of plainttS. — Copley v. New Haven, etc., B. Co., 136 Mass. 61; Pub. St. C. 112, § 212, construed.— )Uerrill v. Eastern B. Co., 189 Mass. 252; 29 N. E. Bep. 666. Michigan. — Detroit, etc., B. Co. v. Van Steinberg, 17 Mich. 99, 119; CONTEIBUTORT NEGLIGENCE BDRDEN OF PROOF. 473 qaestioD of " contributory " negligence does not really arise, although the term is used, but the real question is the Telpel V. Hilsendegen, 44 Mich. 461 ; Mynning v. Detroit, L. & N. E. Co., 67 Mich. 677; 35 N. W. Rep. 811. Mississippi.— Vicksbnrg v. Hennessy, 64 Miss. 391. North Carolina.— Hoggett v. Bichmond, etc., K. Co., 78 N. C. 305; Owens V. Richmond, etc., R. Co., 88 N. C. 502. But this rule seems to have been reversed by Acts 1887, c. 33.-^ Jordan v. City of Asheville, 112 N. C. 743; I6 S. E. Rep. 760. Oregon. — Walsh ». Oregon, etc., R. & Nav. Co., 10 Ore. 250; Ford o. Umatilla County, 15 Ore. 313;el6 Pac. Rep. 33. The decisions are both ways and the rule apparently unsettled in the following States: — Connecticut. — Fox v. Glastenbury, 29 Conn. 204 ; Park v. O'Brien, 23 Conn. 339 ; Beers v. Honsatonic, etc., R. Co., 19 Conn. 566 ; Bell v. Smith, 39 Conn. 211; Button v. Frink, 61 Conn. 342. lUaiois. — The plaintiff must show due care. — Kepperly v. Ramsden, 83 111. 354; Missouri Furnace Co. ». Abend, 107 111. 44; 47 Am. Rep. 425; Lauster o. Chicago, etc., Ry. Co., 43 111. App. 534; City of Abingdon V. McGrew, 42 HI. App. 109. Contra, Consolidated Coal Co. v. Wom- backer, 134 111. 57; 24 N. E. Rep. 627; Chicago & E. I. R. Co. v. Hines, 33 111. App. 271 ; 23 N. E. Rep. 1021. Neva York. — In New Tork the decisions were irreconcilable (2 Thomp. 1177)j until within a short time ago when the rule by the later cases was announced that the plaintiff must show absence of contribu- tory negligence on his part. — Tolman v. Syracuse, 98 N. Y. 198, revers- ing 31 Hun, 397; Hale v. Smith.i 78 N. Y. 483; Hart v. The Hudson River Bridge Co., 84 N. Y. 56; McDermott v. Third Av. R. Co., 44 Hun, 107; Geoghegan o. AUas S. S. Co., 22 N. Y. S, Rep. 749; 3 Misc. Rep, 224. Though he is not required to aver the absence of negligence. — Lee v, Troy Citizens' Gas-tight Co., 98 N. Y. 116; Mele v. Delaware & H. C. Co., 14 N. Y. S. Rep. 630. Ohio. — The rule is laid down In Baltimore, etc., R. Co. v. Whitacre, (35 Ohio St. 627), that in an action for an injury occasioned by negligence where the circumstances require of plaintiff the exercise of due care to avoid the injury, and his testimony does not disclose the want of such care on his part, the burden is upon the defendant to show such contrib- utory negligence as will defeat a recovery. See Cleveland, etc., B. Co. V. Crawford, 24 Ohio St. 636. And in another case (Cincinnati St. By. Co. «. Nolthenius, 40 Ohio St. 376'), an action for injury alleged to have been caused by the negligence of the defendant, it was held not necessary to allege in the petition that the tnjnry was caused without fault or negligence of the plaintiff, " unless the other averments necessary to state a cause of action sug- 474 CONTRIBUTORY NEGLIGENCE. one firstly above stated, viz., Has the plaintiff been negligent at all in respect of the matter complained of, and gested the inference that the plaintiff may have been guilty of contribu- tory negligence." Pennsylvania. — In this State there are decisions holding that the bur- den of proving contributory negligence is on the defendant (Mallory v. GrifEey, 86 Pa. St. 275; Pennsylvania Tel. Co. v. Varnan (Pa.), 15 Atl. Eep. 624; Bradwell v. Pittsburg & W. E. B. Co., 139 Pa. St. 404; 20 Atl. Rep. 1046; 27 W. N. C. Rep. 2645; but the majority of the latter decisions hold, that it is the duty of the plaintiff to show that he was exercising proper care. — Philadelphia, etc., R. Co. v. Boyer, 97 Pa. St. 91; Hershberger v. Lynch (Pa.), 11 Atl. Rep. 642; Baker v. Fehr, 97 Pa. St. 70. Where a passenger on a street car was struck and injured by a passing load of bay, it was held that to make the company liable the passenger must prove not only that he was without fault, but that the company was negligent. — Federal Street, etc., B. Co. v. Gibson, 96 Pa. St. 83. Vermont. — In this State the cases are both ways. — Lester v. Pitts- ford, 7 Vt. 158; Trow v. Vermont, etc., Bv Co., 24 Vt. 487; Hyde v. Jamaica, 27 Vt. 443; Hill v. New Haven, 37 Vt. 501; Walker v. West- field, 39 Vt. 246. The conclusion is reached from an examination of the cases that in those States where it is the rule that the burden of proving contributory negligence is on the defendant, whenever the plaintiff's case raises an inference of contributory negligence the burden is upon him. — New Jer- sey Express Co. v. Nichols, 33 N. J. L. 434 ; Baltimore, etc., R. Co. v. Whitacre, 35 Ohio St. 627; Winship v. Enfleld, 42 N. H. 197; Beatty ». Gilmore, 16 Pa. St. 463; Louisville, etc., B. Co. o. Goetz, 79 Ey. 442; Missouri Furnace "Co. v. Abend, 107 111. 44; Gulf, C. & S. F. Ry. Co. ■». Scott, 7 Tex. Civ. App. 619; 27 S. W. Rep. 827; Waterman v. Chicago & A. R. Co., 82 Wis. 613; 52 N. W. Rep. 247, 1136. And In those where the rule is that the burden of proof is on the plaintiff to show care it is held that this may be inferred from circum- stances. — Nelson v. Chicago, etc., R. Co., 38 la. 564; French v. Bruns- wick, 21 Me. 29; Mayo v. Boston, etc., B. Co., 104 Mass. 137; Clements V. Louisiana E. L. Co., 44 La. Ann. 692; 11 So. Bep. 51. And where it appears from the plaintiff's case alone that he is guilty of contributory negligence the court should direct a non-suit. — Prideaux v. Mineral Point, 43 Wis. 513; Baltimore, etc., R. Co. v. Whitacre, 35 Ohio St. 627; Whart., § 427; 2 Thomp. 1178; Phillips v. East Tenn., V. & G. Ry. Co., 87 Ga. 272; 13 S. E. Rep. 644; Jenkins «. Central R. & B. Co., 89 Ga. 756; 15 S. E. Bep. 655; Tucker v. Baltimore & O. R. Co., 59 Fed. Eep. 968; Foreman v. Pennsylvania R. Co., 159' Pa. St. 641; 28 Atl. Rep. 358; Jackson ». Crilly, 16 Colo. 103; 26 Pac. Rep. 331; Nagle v. Cali- fornia S. R. Co., 88 Cal. 86; 25 Pac. Rep. 1106; Bond v. Smith, 113 N. Y. CONTRIBUTORY NEGLIGENCE. 475 might he have avoided the defendant's negligence? Thus in those numerous cases already mentioned (m), where the defendant has invited the plaintiff upon his premises, or has in any other way misled the plaintiff into a 'feeling of security (n), the question has not really been whether the plaintiff has been guilty of " contributory negligence " or not, but whether under the circumstances he has been guilty of any negligence at all in respect of the injury. If in any of those cases it should be found that he had not been misled, then he would have been guilty of some sort of negligence, and the further question would thereupon have arisen, viz., whether he was guilty of "contribu- tory negligence ;" in other words, whether he had done a negligent act, which was the proximate cause of the injury (o). [385] It may seem that there are some cases in which the second proposition(2>)can scarcely be said to be in issue. Where the defendant does an act the consequences of which are beyond his control, as if he leaves a cart in the street, and the horse runs away and the plaintiff carelessly is driving on the wrong side of the way, it is obvious that the defendant cannot avoid the effects of the plaintiff's negligence in point of fact, but it is his own fault that he (n>) Ante. tiff's negligence by the exeiclse of (n) Aa In cases of invitation to aligbt ordinary care, as It ironld seem they from a railway carriage, see ante, Ch. III. might. The plaintiff, the owner of the s. 8, Carriers. Silver Clond, was being tagged by the (o) Probably the case of Smith «. St. defendant's tng. The Silver Olond knew lji\iTeiice Towboat Co., L. R. S P. C. Ap. there was danger, bat did not inform the 308, may be espl)ilned to be within the tag. This may have led the tag Into a above principle, althoagh the Inquiry feeling of secnrlty, and so there was no was there never made whether the de- negligence on the part of the tng. fendants conld have avoided the plain- (p) Supra, p. 285. 378; 21 N. E. Bep. 128; Merediths. Richmond & D. K. Co., 108 N. C. 616; 13 S. B. Hep. 137; Hunter ». Coopertown, etc., R. Co., 112 N. Y. 371; 19 N. E. Rep. 820; Hamilton v. Delaware, etc., R. 6o., 50 N. J. L. 263; 13 Atl. Rep. 29; May v. Central R. & B. Co., 80 Ga. 363; 4 S. E. Rep. 330; Solomon B. Manhattan Ry. Co., 103 N. Y. 487; 9 N. E. Eep. 430; Scott V. Oregon Ey. Co. & Nav. Co., 14 Ore. 211. 476 CONTKIBUTOKT NEGLIGENCE. has disabled himself from doing so, and he must be held liable. If the defendant's negligence is of such a character that he has deprived himself of his power of avoiding the plaintiff's negligence, that is equivalent to his being able to avoid it and negligently omitting to do so. A case, which at first sight might be thought difficult to explain, might be thus interpreted: A., a station master, without looking at his table of trains negligently orders an up- train to be turned on the line C, and jumps into the train. B, -another station master, at the same moment looks at his table of trains, but negligently looks at them and makes a mistake, and orders a down-train to be turned on the same line C. A is injured in the collision, and brings his action againt B. The negligence of both parties is identi- cal in point of time and both in an equally substantial manner have contributed ; but B, the defendant, has got to show that he could not by the exercise of care have avoided the plaintiff's (A's) negligence. He cannot show that, for the truth is that his act was of such a character as to render the plaintiff's negligence unavoidable. Suppose the defendant, sitting in his trap negligently tied his reins to it, and fell asleep,and his horse started off; the plaintiff negli- gently was playing at pitch and toss in the street ; the defend- ant, having awoke, could byordinary care avoid running over [386] the plaintiff, but he was too idle to untie the reins. The defendant is liable; but, could it be contended that he would be less- liable if he had deprived himself of the power of exercising care in the first instance by letting the reins lie upon the horse's back? Clearly he would be liable, although as a matter of fact he could not avoid the plaintiff's negligence, having put it out of his power to do so. The question whether the defendant could have avoided the consequences of the plaintiff's negligence was not put in the old cases, although perhaps substantially the doctrine operated upon the minds of the judges. Thus in Butter- CONTKIBDTOET NEGLIGENCE. 477 field V. Forrester (q), the defendant placed a pole across part of a highway, the plaintifif might have seen it 100 yards off, bat he was riding so violently in the streets of Derby that he rode against it and was injured. The Court did not inquire whether the defendant could by ordinary care have avoided the plaintiff's negligence, but it is quite probable that he could not even if he had been there. A man riding as hard as he could in a public street afid not able to stop in 100 yards, would probably have come to harm if defendant had done all that a man could do to warn him. So ailao, as was observed in D. W. & W. Ey. Co. v. Slattery (r), if a man in broad daylight with nothing to obstruct his view chose to cross a line in front of an advancing train, it would be his own folly, and the judge might nonsuit. No doubt that is so, for his negligence would be of such a character that the defendant could not avoid it, for instance no whistling would be of any avail; but where, as in that case, it was" at night, and the plaintiff was in a hurry to obtain a ticket, a whistle might have stopped him. It was a question for the jury which was the causa causans, the absence of whistling or the negligence of the plaintiff in not looking out. In a later case the plaintiff admitted [387] that he could have seen the advancing train if he had looked. There was no whistle. There was a man at the gates, but it was not his duty to give warning, and in fact he gave none. It was held by the Court of Appeal (Baggallay, L. J., diss.), that the plaintiff was rightly nonsuited. The Master of the Eolls and Lord Justice Bowen thought that there might be some evidence of negligence in the defendants in not whistling; but that the plaintiff's evidence showed that he was clearly guilty of contributory negligence, it being understood that the (g) Bntterfleld v. fonestei, 11 East, (r) D. W. & By. Co. v. Buttery, L B. 3 App. Gas. 1166. I 478 CONTKIBUTOKY NEGLIGENCE. defeDdants could not by reasonable care hare avoided the plaintiff's negligence (s). It cannot be considered to be contribatory negligence if the plaintiff has merely not anticipated the defendant's negligence (t), for the plaintiff has a right to presume that the defendant is going to act with ordinary care until he has some notice to the contrary, when it becomes his duty (as we have seen) to take ordinary means to avoid it, that is, such means as a prudent man ought to take. And by the same rule the defendant cannot presume the plaintiff's negligence, and provide against it beforehand, but when he is aware of it he is bound to, use care to avoid it. The defendant is not excused merely because the plain- tiff, knowing of a danger caused by the defendant, volun- (») Davey ». L . & S. W. By. Co.. 11 Q. B. 161 ; 42 L. J. Q. B. 105 (passenger ro- B. D.- 213; and in 0. A. 12 Q. B. D. 70. lying; on defendants baring fastened the (0 Vennal v. Garner, 1 Cr. &. M. 21 door). See post. Presumption of Care (ship relying on another taking a certain and Negligence, Ch. VI; [infra]. course). Gee v. Met. By. Co., L. B. 8 Q. (t) Kobinsontj. Western Pac. E. Co., 48 Cal. 409; Shea v. Fotrero, etc., E, Co., 44 Cal.'414; Fraler o. Sears Water Co., 12 Cal. 655; Damour i?. Lyons, 44 la. 276; Moalton v. Aldrich, 28 Ean. 306; Cleveland, etc.^ E. Co. V. Terry, 8 Ohio SI. 670; BLsk v. Wait, 104 Mass. 71; Fox ». Sackett, 10 Allen, 635; Ernst v. Hudson Eiver E. Co., 36 N. T. 9; Kellogg u. Chicago, etc., E. Co., 26 Wis. 223 ; Eeeves v. Delaware, etc., B. Co., 30 Pa. St. 464; Brown v. Lynn, 31 Pa. St. 610; Langan v. St. Lonls, etc., E. Co., 72 Mo. 392; Central B. Co. v. Harrison, 73 Ga. 744; Chicago & N. W;. By. Co. V. Goebel, 119 111. 516; Nichols v. Chicago, etc., E. Co., 69 Ia.|154; Clements v. Louisiana E. L. Co., 44 La. Ana. 692; 11 So. Eep. 61; Hedges ». Kansas, 18 Mo. App. 62; Apple ». Board Comrs. Marion County, 127 Ind. 553 ; 27 N. E. Eep. 166 ; Hobson v. New Mexico & A. B. Co. (Ariz.3, 11 Pac. Eep. 545; Sanderson v. Frazier, 8 Colo. 79; 54 Am. Eep. 644; Conner v.. Citizen's St. By. Co., 105 Ind. 62; 66 Am. Eep. 177; Jennings v. Van Schalck, 108 N. Y. 630; 16 N. E. Eep. 424; Undhejem v. Hastings, 38 Mi,nn. 485; 38 N. W. Eep. 488; Krey v. Schlussner, 62 Han, 620; 16N. T. S. Eep. 6,95. The defendant is not bound to anticipate the negligence of the plain- tife.— Carrington v. Louisville & N. E. Co., 88 Ala. 472; 6 So. Eep. 910; The Sir Garnet Wolseley, 41 Fed. Eep. 896; Evans v. Adams Exp. Co., 122 Ind. 362; 23 N. B. Eep. 1039; Johnson v. Willcox (Pa.), 19 Atl. Eep. 939. CONTRIBUTORY NEOLIGBNGE. 479 tarily incurs that danger; for the defendant may have so [338] acted as to induce the plaintiff as a reasonable man to incur the danger (u). The circumstances are for the jury. If the plaintiff negligently incurs such danger, that is to say, not acting as a reasonable man would do, he can- not recover {v). If he intentionally incurs the danger he is not negligent, it is true, but he cannot complain of the result, and so here again he cannot recover (x). It is no («) Dewlre v. Bailey, 17 Lathiop, S. Lewis, 136 Ind. 80; 25 17. E. Bep. 593; C. B. [131] Mass. 169 (man having to go Goidon v. Cammlngs, 152 Mass. 513; 25 on slippery sidewalk) ; liOoney V. Mo- N. £. Bep. 978;Mc6oldrick v. XewTork, Lean, 15 Latbrop, S. C. B. Mass. [129] etc., B. Co., 68 Hun, 629 ; 20I7.Y. B. Bep. 33 (tenant of flat using dangerons stalx- 914; Merrill v. Xorth Tarmoatb, 78 Me. case); [Smith v. Team. (Miss.), 16 So. 200; 67 Am. Bep. 794.] Bep. 492, (woman necessarily entering a (v) Clayards v. Dethick, 12 Q. B. 439 carriage, thongh she knew It to be dan- (cabman leading horse past heap of gerons to do so) ; Shannon v. Boston & soil) ; Hnmphries v, Armstrong Co., 66 A. B. Oo., 78 Me. 52 (woman injured by Fa. St. 204 (plaintiff crossing an nnsaf e jnmping from a saddenly started car in bridge) ; Jones v. Bojoe,po8t, Adams v. which she was sitting by permission of L. & Y. By. Co., ante. the. station agent) . See Spearbracker v. (x) See remarks of Lord Bramwell in Larrabee, 64 Wis. 573; Boss v. Daven- Appendix B. [omitted In this edition], port, 66 la. 548; Town of Poseyrille V. («) Bowell V. Stamford St. B. Co., 61 Conn. 376 ; 30 Atl. Bep. 131 ; Illinois Cent. B. Co. v. Davidson, 61 Fed. Bep. 301 ; Goddard v. Mcintosh, 161 Mass. 253; 37 N. E. Bep. 169; Aurora Cotton Mills v. Ogbert, 14; 111. App. 631; Gull, C. & S. F. By. Co. ». Montgomery, 85 Tex. 61; 19 S. "W. Bep. 1015; Moore v. Edison E. I.i3o., 13 La. Ann. 792; 9 So. Bep. 133; Moore v. Norfolk & W. B. Cp./^ Va. 189; 12 S. E. Bep. 968; Coops v. Lake Shore & M. S. By. Co., 66 Mich. 118; 33 N. W. Bep. 511; Woodman V. Pitman, 79 Me. 456; 10 Atl. Bep. 321; Montgomery & E. By. Co. v. Thompson, 77 Ala. 118; 51 Am. Bep. 72; Higgins v. Cherokee B. Co., 73 Ga. 149; East Tenn., Va., etc., B. Co. v. Bush, 15 Lea (Tenn.), 115; Mantel o. Chicago, etc.. By. Co., 33 Minn. 62 ; Walker v. Eeidsville, 96 N. C. 382; Hartman v. Muscatine, 70 la. 436; McGinty v. Keokuk, 66 la. 725; Prewitt o. Eddy, 115 Mo. 283; 21 S. W. Bep. 742 ; Eckerd v. Chicago & N. W. By. Co., 70 la. 353; Louisville & N. B. Co. v. Schmetzer, 91 Ky. 121; 22 S. W. Bep. 603; Harris v. Hannibal & St. Joe B. Co., 89 Mo. 233; Cook V. Wilmington City E. Co., 9 Honst. 306; 32 Atl. Bep. 643; Sheeler v. Chesapeake & O. B. Co., 81 Va. 188; Chicago & E. I. R. Co. v. Boberts, 11 111. App. 179; Lehigh VaUey R. Co. v. Greiner, 113 Pa. St. 600; Downey o. Chesapeake & O. R. Co.,' 28 W. Va. 732; Cornwall v. Charlotte, etc., B. Co., 97N. C. 11. (a) Schoerifeld v. Milwaukee City Ry. Co., 71 Wis. 433; 43 N. W. Rep. 162; Twogood V. New York, 12 Daly, 220; Memphis & L. R. Co. v. 480 CONTRIBUTORY NEGMQBNCE, excuse for the defendant to say that the plaintiff is doing something illegal (y) unless he can add that the doing so contributed materially to the accident. (y) Either In case of breaking an Act 381,405; or in case of breaking tbecom- of Parliament, see Steele v. Bnchart, 104 mon law, as by trespassing, see the cases Mass. 69; Sntton v. Wanwantosa, 29 of falling Into an excavation on defend - Wis. 21; bnt see Feitalv. Middlesex By. ant's land, ante, Ota. II. ». 2; [see in/ra}. Co., 109 Mass. 398; see Wharton, ss. 331, Salinger, 46 Ark. 528; Barstow v. Old Colony K. Co., 143 Mass. 535; Bardwell v. Mobile & O. E. Co., 63 Miss. 574; City of Horton v. Trom- peter, 63 Ean. 150; 35Fac. Rep. 1106; Clements v. Louisiana E. Ii. Co., 44 La. Ann. 692; 11 So. Bep. 51; Flatt v. Cliicago, etc., By. Co., 84 la. 694; 61 N. W. Bep. 254; Miner v. Connectlcnt Biver B. Co., 153 Mass. 898; 26 N. E. Bep., 994; Hinz v. Starln, 46 Hnn, 526; Citizen's St. By. Co. V. Twiname, 111 Ind. 587 ; 13 ST. E. Bep. 65 ; Jochem v. Bobinson, 72 Wis. 199; 39 N. W. Bep. 883; Frazer v. South &N. A. B. Co., 81 Ala. 185; 1 So. Bep. 85; Barlow v. McDonald, 39 Hun, 407; Allis v. Colnmbia Uni- versity, 19 D. C. 270; Dwyerc. New York, etc.. By. Co., 47 N. J. L. 9; Boylan v. Brown, 63 Hun, 627 ; 17 N. T. S . Bep. 648 ; Chicago & A. E. Co. V. Murphy, 17 111. App. 444; and many of the cases cited in the last pre- ceding note. Illegal Act. — It is no defense that plaintiff was doing an illegal act at the time of the injbry unless the act was the proximate cause of the injury. As where one was injured by the negligence of another while riding on the wrong side of the road in violation of law (SpoSord v. Hailow, 3 Allen, 176), or while attempting to pass another carriage on the road (Damon v. Scituate, 119 Mass. 66), or by placing a wagon transversely to the course of a street while loading it, in violation of an ordinance (Steele v. Burkhardt, 104 Mass. 59), or driving at a speed forbidden by ordinance (Hall v. Bipley, 119 Mass, 136), or getting off the front plat- form of a street car, contrary to law (Nlssen v. Missouri B. Co., 19 Mo. ,App. 662), and in an action against a railroad company for injuries, It is no defense that the plaintiff was at the time violating the rules of the company. — Ford v. Fitchburg B. Co., 110 Mass. 240. Nor is it a defense that one who receives an injury by the negligence of another is riding on Sunday in violation of a statute. — Platz o. City of Cohoes, 89 N. Y. 219; 42 Am. Bep. 286; Stewart o. Davis, 31 Ark. 518; 25 Am. Bep. 576 ; Fiollet v. Simmers, 106 Pa. St. 95 ; 24 Am. Law Beg. 235; Suton v. ■Wauwatosa, 29 Wis. 21; 9 Am. Bep. 634; Alexanders. Oshkosh, 33 Wis. 277; Knowlton v. Milwaukee City B. Co., 69 Wis. 278; Opahl V. Judd, 30 Minn. 126; Sewall v. Webster, 69 N. H. 696; Went- worth V. Jefferson, 60 N. H. 158; Baldwin v. Barney, 12 B. I. 392; Car- roll V. Staten Island B. Co., 58 N. Y. 126 ; Philadelphia, etc., B. Co. v. CONTRIBtJTOBY NEGLIGENCE — ILLEGAL ACT. 481 [389] The cases of Clayards v. Dethick (») and of Wyatt V. G. W. Ry. Co. (a) have been commented on in the (a) Suprtt. (o) Pott. Philadelphia, etc.. Steamboat Co., 23 How. 209; Black v. Cityof Lewiston, 2 Idaho, 254; 13 Pac. Rep. 80. Or laboring on Sunday.— Sawyer v. Oakman, 7 Blatchf. 290; Schmld V. Humphrey, 48 la. 652 ; 30 Am. Rep. 414 ; Louisville, N. A. & C. Ry. Co. V. Buck, 116 Ind. 566; 19 N. E. Rep. 458; Johnson v. Missouri Pac. Ry. Co., 18 Neb. 690; Louisville, N. A. & C. Ry. Co. v. Frawley, 110 Ind. 18; 9 N.E. Rep. 594. And where one let a horse on that day to go to a certain place and the bailee went to another, and the horse was injured by the distance and the immoderate driving, it was held the bailee might recover (Martin v. Gloster, 46 Me. 520), not if the injury was received while going upon the exact journey. — Parker t>. Latner, 60 Me. 528; Frost v. Plumb, 40 Conn. Ill ; Fisher v. Kyle, 27 Mich. 454. Bat in Maissachusetts and some of the other New England States, a different doctrine prevails. — Bosworth v. Swansey, 10 Met. 363 ; Ijyons V. Desotelle, 124 Mass. 387; Jones v. Andover, 10 AUen, 18; Hinckley v. Penobscot, 42 Me. 89; Bryant v. Biddeford, 39 Me. 193; Johnson v. Iras- bnrgh, 47 Vt. 28. It is there held that one receiving an injury while traveling on Sunday escept for the purpose of necessity or charity can not recover. — Hol- comb V. Danby, 51 Vt. 428; Bucher v. Cheshire R. Co., 8 Sup. Ct. Rep. 974; and cases cited supra. But when the injury is wantonly or willfully inflicted, even in Massa- chusetts, the fact that one is traveling on that day is no defense. — Wallace v. Merrimack Biv. Nav., etc., Co., 134 Mass. 95; 45 Am. Rep. 301. (In Barker v. Worcester, S. J. C. Mass., 2 (Boston) Daily Recprd, No. 46, making a social call was hetid not to be within the meaning of the statute, citing Hamilton v. Boston, 14 Allen, 475.) In Massachusetts one who walks a short distance for exercise on Sunday, does so at his own peril. — Barker v. City of Worcester, 139 Mass. 74; 29 N. E. Rep. 474. And where one while traveling on Sunday was bitten by the defendant's vicious dog, it was held in that State that he could recover for injuries so received. — White v. Lang, 128 Mass. 598; 36 Am. Rep. 402. And in Maine where one walked for exercise on that day, tliongh he turned aside from his regular course to get a friend to accompany him (O'Connell v. Lewiston, 65 Me. 34), or to drink a glass of beer, it was held he could recover for Injuries received. — Davidson v. Portland, 69 Me. 116; 31 Am. Bep. 253), nnlesB the effects of the beer contributed to the Injury. Generally, however, the rule is as stated that a violation of the law 31 482 CONTEIBtlTORr NEGLIGENCE. recent case [390] of Lax v. Darlington (Mayor of), by Bramwell, L. J. (6), who objected to the phrase, " What would a prudent man do?" saying that a prudent man might lead a forlorn hope, or might jump out of a fast train if he saw imminent danger to his wife or child; and in this sense the phrase does not seem to be a bad one (c.). The defendant cannot be expected to provide against, or to be answerable for, the effects of unusual and extraordinary motives which may tempt a man to incur danger. But the phrase must be taken to mean, " What would a prudent man do under ordinary circumstances ? " Suppose an average prudent man (so to say) would endeavor to get out of a train just moving from Peterborough platform if he wanted ) Lax v. Darlington (Atayor ol),L. (c) See remarks of Lord Bramwell in B. 6 Ex. D. 28; 49 L. J. Ex. 105. C. A. Appendix B. must be the proximate cause of the injury to entitle one to recover. — Neanow o. Ullech, 46 Wis. 581 ; Griggs «. Fleckinstein, 14 Minn. 81 ; Spofford V. Harlow, 3 Allen, 176; Street ». Laamier, 34 Mo. 469; Steele V. Burkhardt, 104 Mass. 59; Klipper v. Cofiey, 46 Md. 117; Davidson o. Portland, 69 Me. 116; Morton v. Gloster, 46 Me. 520; Hall v. Ripley, 119 Mass. 135; Minerley o. Union Ferry Co., 66 Hun, 113; 9 N. Y. S., Rep. 104; Prev?itt v. Eddy^ 115 Mo. 283; 21 S. W. Rep. 742; Van Anken v. Chicago, etc., E. Co., 96 Mich. 307; 55 N. W. Rep. 971; Illinois Cent. R. Co. v. Dick, 91 Ky. 434; 15 S. W. Rep. 665; Louisville, N. A. & C. Ry. Co. v. Frawley, 110 Ind. 18; 9 N .B. Rep. 694. Where the illegal act directly produces the injury, as where one was injured by driving across a bridge faster than a walk In violation of an ordinance. — Heland v. Lowell, 8 Allen, 407. And where one without authority of law connected his drain with a public sewer, and water from the sewer backed up and flooded his cellar (Darling v. Bangor, 68 Me. IDS'), it was held he could not recover. And where one while traveling upon a non-transferable free pass by representing himself to be the owner, was injured, it was held he could not recover for injuries received unless the negligence of ^the company was so gross as to amount to willfulness (Toledo, etc., B. Co. v. Beggs, 86 Ul. 80J, and where one was killed while stealing a ride on defendant's train,it was held his representatives could not recover damages therefor.— Toledo, etc., R. Co. v. Brooks, 81 HI. 245; see Wallace «. Cannon, 38 Ga. 199. The soundness of these decisions is questioned. — Beach on Contributory Neg., 2d ed., § 48. CONTRIBUTORY KEGLIGENCE DUE CARE. 483 to go to Newark rather than be carried on to Retford ; if BO, there would be no contributory negligence. But sup- pose an average prudent man would not endeavor to get out if the train had been under way two minutes, there- fore if any one did so he would be guilty of contributory negligence; yet he might be a very prudent man in fact if iElOO.OOO depended upon his stopping at Peterborough ; but I do not think the defendant ought to be answerable for Due Care. — In law a prudent man is one who exercises due care. It is axiomatic that if such a person is injured by the negligence of another he may recover therefor.— Altoona ». Lotz, 114 Pa. St. 238; Hannibal & St. Joe E. Co. V. Martin, 111 111. 219; Bergs. City of Milwaukee, 83 Wis. 599; 53 N. "W. Kep'. 890 ;■ Chicago, St. L. & P. E. Co. v. Spilker, 134 Ind. 380; 33 N. E. Eep. S80; Crowley ». St. Louis, etc., Ey. Co., 24 Mo. App. 119; Lapointe V. Middlesex K. Co., 144 Mass. 18; Colemah ». Second Av. E. Co., 41 Hun, 880; Baltimore & Y. T. Eoad v. Leonhardt, 66 Md. 70. The rule that he cannot recover if guilty of contributory negligence is equally well established. — St. Louis & S. F. Ey. Co. v. Traweek, 84 Tex. 65; 19 S. W. Eep. 370; Gulf, C. & S. F. Ey. Co.B. Shleder (Texas), 30 S. W. Eep. 902; Salem Bedford Stone Ca. o. O'Brien (Ind. App.), 40 N. E. Hep. 430; Bradwell v. Pittsburgh & W. E. P. By. Co., 153 Pa. St. 105; 25 Atl. Eep. 623; Central E. & B. Co. v. Attaway, 90 Ga. 656; 16 S. E. Eep. 356; Flagg v. Chicago, etc., Ey. Co., '96 Mich. 30; 55 N. W. Eep. 444; State V. Lauer (N. J.), 26 Atl. Eep. 180; Lilley v. Fletcher, 81 Ala.' 234; 1 So. Eep. 273. The text clearly states the reasons upon which is based the rule of law permitting the acts of persons to conform to the occasion and the relation of the parties or places, as far as prudence is concerned. — Hart V. Delaware L. & W. Ey. Co., 67 Hun, 648 ; 22 N. Y. S. Eep. 3. Thus a mother who was injured by falling into an open hatchway while trying to prevent the falling therein of her four-year-old child, who had stumbled, was held not guilty of contributory negligence. — Clark v. Famous S. &C. Co., 16 Mo. App. 468. SeeDonahoe u. Wabash, etc., Ey. Co., 83 Mo. 560; 53 Am. Eep. 594. So where plaintiff was injured by falling into a ditch while running through a public street, on a dark night, to assist in extin- guishing a fire, he was not guilty of contributory negligence. — Nobles - ville G. & I. Co. V. Loehr, 124 Ind. 79; 24 N. E. Eep. 579. But where a passenger's only reason for attempting to alight from a moving railway train was the failure of the train to stop at the station, he cannot complain if injured. — Butler v. St. Paul & D. B. Co. (Minne- sota), 60 N. W. Eep. 1090. See K. C, Ft. S. & M. Ey. Co. v. Mayes, 58 Ark. 397; 24 S. W. Eep. 1076. So, a recovery cannot be had for the killing by a, train on a railroad trestle of a person who failed to exercise ordinary 484 CONTKIBUTOBT NEGLIGENCE. [391] such an unexpected motive (. Wilson, 46 III. App. 381. S. P., San Antonio & A. P. Ry. Co. v. McDon- ald (Tex. Civ. App.), 31 S. W. Bep. 72. " The qnestion in snch cases is not what a pmdent man nnder ordi- nary circnmstances wonld have done, for the suddenness of the emer- gency, the excitement and the influence of terror mnst be taken into the account " (Beach on Contributory ID'eg. 44, citing Johnson v. West Chester, etc, B. Co., 70 Fa. St. 357; Linnehan v. Sampson, 126 Mass. 506; 30 Am. Bep. 693; Pittsburgh, etc., B. Co. v. Bohrman, 13 Week. Notes Cas. 258; 29 Alb. L. Jour. 97; Earr v. Parks, 40 Cal. 188; Galena, etc., B Co. V. Yarwood, 17 111. 500; Indianapolis B. Co. v. Stont, 53 Ind. 143) ; "and what other persons did at the same time may be given in evidence to show what may have been reasonably prudent under the circnmstances. — Twomley v. Central Park, etc., B. Co., 69 N. Y. 158; 25 Am. Bep. 162; MobUe, etc., B. Co. o. Ashcraft, 48 Ala. 15." Where one places himself in a position of danger for the purpose of saving the life of another and is thereby injured, his conduct will not be deemed negligent ; for " the law has so high a regard for human life, that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons." — Eckert v. Long Island B. Co., 43 N. Y. 502. Where one saw a child about to be run over by a train of cars, and rushed upon the track and saved it from danger, thereby losing his life, it was held that unless the act was, under the circnmstances, rash and reckless, and this was a qnestion for the jury, his representative might recover damages. — Jd. S. P., Peyton v. Texas & P. By. Co., 41 La. Ann. 861 ; 6 So. Bep. 690. See Linnehan v. Sampson, 126 Mass. 506 ; Gibner V. State, 137 N. Y. 1 ; 33 N. E. Bep. 142 ; Pennsylvania Co. v. LangendorS, 48 Ohio St. 316; 28 N. B. Bep. 172; Henry v. Cleveland, etc., B. Co., 67 Fed. Bep. 426. And where a railroad engineer nobly stuck to bis engine at a time of a threatened collision, expecting to save the train from danger, and was killed, it was held by the Supreme Court, reversing the court below, that such conduct was not contributory negligence, and that his widow might recover damages for his death. — Cotterill v, Chicago, etc. B. Co., 47 Wis. 634 ; 32 Am. Bep. 796. The court said: " The evidence presents an example or heroic bravery and fidelity to duty at the post of danger most praiseworthy and com- 488 CONTRIBUTOBY NEGLIGENCE. , question of fact upon the issue of contributory negligence, or there are two reasonable but different views which may be taken, such questions must be left to the jury {j). Such questions are often very difficult for the jury to decide, and each case will depend upon its own peculiar facts, and cannot be settled by any general rules. For instance, in the case of Wilkinson v. Fairie (&), where a caiman was U) Seeper Lord Penzance in D.W.& (M saij. J.Ex. 7S; 1H.&C.633. VT. Ey. V. Slattei;, mpra; see Jackson v. Met. By., supra. mendable, aod an occurrence wortby of lasting xecord in the book of heroic deeds. • * * Who shall sit in judgment upon this brave engineer to coolly determine the alternative risks and chances which be is compelled to take instantly with scarcely a moment of time for deliberation in such a terrible emergency. It will not do to establish a rule by which the duty of an engineer in such an emergency may be measured and dictated by cowardice and timidity, and by which his standing at his post and facing danger, will be carelessness and negligence. The defense resting upon such a theory in this case cannot be sanctioned." — Pennsylvania Co. V. Boney, 89 Ind; 463; 46 Am. Bep. 173; contra, Evansville, etc., B. Co. V. Hiatt, 17 Ind. 102. In the case cited supra (Pennsylvania Co. v. Boney), Elliott, J., said: « An engineer who remains at his post and faces danger, is not to be deemed negligent. An engineer in charge of a train laden with men, women and children, is not bound to leap from his en^ne to escape im- pending danger. If he believes his duty requires him to do what he can to save those under his charge, and he braves death in the discharge of that duty, the law has for him no censure, but has, on the contrary, high commendation and respect." See Hass v. Chicago, etc., By. Co. (lowa), 57 N. W. Bep. 894. In the case of Gross v. Pennsylvania, etc., B.' Co., (62 Hun, 619; 16 N. T. S. Bep. 616), an engineer who jumped from his engine to avoid the danger of an apparent collision with another train was held to be entitled to compensation for the injuries sustained. S. P., Louisville & N. E. Co. V. Bains (Ky.), 23 S. W. Bep. 505. See Haney v. Pittsburgh, etc., By. Co., 38 W. Va. 670; 18 S. B. Bep. 748. (i) Emryv. Baleigh&G. B. Co., 109 N. C. 589; 14 S. E. Bep. 362; Warmington v. Atchison, etc., B. Co., 46 Mo. App. 159; Apsey v. Detroit, L. &N. E. Co., 83 Mich. 440; 47 N. W. Bep. 513; Potter v. Moran, 61 Mich. 60; 27 N. W. Bep. 854; Popp «. New York, etc., E. Co., 7 N. Y. S. Bep. 249; Columbus & W. Ey. Co. v. Bradford, 86 Ala. 574; 6 So. Bep. 90; Lissa V. Goodkind, 4 N. Y. S. Bep. 835; Chautauqua Lake Ice Co. v. Mc- CX)JraRIBOTORY NEGLIGENCE. 489 sent to fetch some goods at defendant's warehouse, and he went along a dark passage and fell down a staircase, Bram- Luckey (Pa.), 11 Atl. Rep. 616; Mynnlng v. Detroit, L. & N. H. Co., 67 Mich. 677; 35 N. W. Eep. 811; Hoehn e. Cliicago, etc., Ky. Co., 152 111- 223; 88 N. £. Bep. 549. See 11 Am. St. Bep. 786, nqte. (j) Elyton Land Co. v. Mlngea, 89 Ala. 621; 7 So. Bep. 666; Arkan- sas Tel. Co. ». Eatteree, 67 Ark. 429; 21 S. W. Eep. 1069; Harmon v. Wasliington & G. B. Co., 7 Mackey, 266; Morgan v. Southern Fac. Co., 96 Cal. 601; 30 Fac. Bep. 601 ; Orr v. Garabold, 86 Ga. 873 ; 11' S. E. Bep. 778; Hobbold v. Chicago S. E. Co., 44 III. App. 418; Cincinnati, H. & I. B. Co. V. Claire, 6 Ind. App. 390; 33 N. E. Bep. 918; Eickel v. Sen- benn, 2 Ind. App. 208; 28 N. E. Bep. 193; f'uUiam v. Muscatine, 79 la. 486; Langano. City of Atchison, 36 Ean. 318; 11 Fac. Bep. 38; Nugent V. Boston, etc., Corp., 80 Me. 62; 12 Atl. Bep. 797; Mobile & O. B. Co., V. Mullins, 70 Miss. 730 ; 12 So. Eep. 826 ; Connolly v. City of Waltham, 156 Mass. 868; 31 N. E. Bep. 802; Hendrickson v. Meadows, 164 Mass. 599; 28 N. E. Eep. 1054; Benjamin v. Holyoke St. By. Co., 160 Mass. 3; 36 N. E. Bep. 95; Kendall v. Kendall, 147 Mass. 482; 18 N. E. Bep. 233; Furtell v. Jordan, 156 Mass. 578 ; 31 N. E. Bep. 662 ; Craft v. Parker, Webb & Co., 96 Mich. 246; 56 N. W. Eep. 812; Kalemback ». Michigan Cent. E. Co., 87 Mich. 509; 49 N. W. Bep. 1082; Bibbles. Starrat) 88 Mich. 140; 47 N. W. Bep. 244; Brezee ». Powers, 80 Mich. 172;46N.W.Eep. 130; Engels.Smlth, 82 Mich. 1 ; 46 N. W. Bep. 21 ; Ashton v. Detroit City By. Co., 78 Mich. 587; 44 N. W. Eep. 141; Bradley v. Ft. Wayne & E. By. Co., 94 Mich. 36; 68 N. W. Eep. 916; Laethem v. Ft. Wayne & B. I. By. Co., 100 Mich. 297; 58 N. W. Eep. 996; Dougherty v. Missouri E. Co., 97 Mo. 261 ; 8 S. W. Eep. 900; 11 S. W. Bep. 261; Walton v. Ackerman, 49 N. J. L. 234; 10 Atl. Bep. 709; McLaughlin v. Armfield, 68 Hun, 376; 12 N. Y. S. Rep. 164; Buhrens o. Dry Dock, etc.. By. Co., 63 Hun, 671; 6 N. Y. S. Bep. 224; Galvin v. City of New York, 112 N. Y. 223; 19 N. E. Eep. 676; Francis o. New York Steam Co., 114 N. Y. 380; 21 N. E. Bep. 988; Atkin. son V. Abraham, 46 Hon, 238 ; Kane v. New York, etc., E. Co., 132 N. Y. 160; 30 N. E. Eep. 256, affirming 9 N. Y. S. Bep. 879; Emry v. Balelgh & G. E. Co., 102 N. C. 209; 9 S. E. Bep. 139; Malone v. Pitts- burgh & L. E. B. Co., 162 Pa. St. 390; 25 Atl. Eep. 638; 31 W. N. C. 407; Fennsylvania B. Co. v. Zink, 126 Pa. St. 288; 17 Atl. Eep. 614; Gates v. Pennsylvania E. Co., 154 Pa. St. 666; 26 Atl. Eep. 698; 32 W. N. C. 333; Hartzig v. Lehigh Val. E. Co., 164 Fa. St. 364; 26 Atl. Bep. 310; Martin V. Missouri Fac. By. Co., 3 Tex. Civ. App, 138; 22 S. W. Eep. 196; Den- ham V. Trinity Co. L. Co., 73 Tex. 78; 11 S. W. Eep. 151; Brown ». Sul- livan, 71 Tex. 470; 11 S. W. Bep. 288; Smith v. Bio Grande W. Ey. Co., 9 Utah, 141; 33 Pac. Bep. 626; Dougherty©. West Superior I. & S. Co. (Wis.), 60 N. W. Eep. 274; Brown v. Brooks, 86 Wis. 290; 65 N. W. Bep. 395; Brennan v. Friendship, 67 Wis. 228; Seefeld v. Chicago, etc., Ey. Co., 70 Wis. 216; 36 N. W. Eep. 278; Johuson v. Lake Superior T. & 490 CONTEIBCTOKT NEGLIGENCE. well, B. directed a nonsuit, saying: " If it was so dark that the plaintiff could not see, he ought not to have proceeded without a light ; if it was sufficiently light for him to see, he might liave avoided the staircase." A similar dilemma having been put by counsel in Low v. G. T. Ey. (Z), Bar- row, J., delivering the judgment of the Court (consisting of six judges), said that " these questions are not to be dis- posed of by a little neat logic, but can best be determined by practical men on a view of all the facts and circum- stances bearing on the issue. A man may be deceived by a half light, and using due care himself may meet with an accident by falling into a chasm where he was not bound to expect to find one." In some of the cases, the court, in considering the question whether there was any evidence to go to the jury of the defendant's negligence, have inevitably been led to [395] consider the conduct of the plaintiff; but it is obvious that the question of contributory negligence does not arise until the defendant's negligence has been proved, and therefore it must be remembered that the court is only speaking of the plaintiff's conduct so far as it throws light upon the question whether the defendant has been shown to have been guilty of any negligence at all (m). In proceedings for damages, where there has been negli- gence in both the parties to a collision between ships, the rule is to divide the loss between them (n) ; and in the (Z) 72 Me. 313; 39 Amer. Bep. 331. (n) See WlUlams v. Brace, Ad. Frac (in) See Judgment of Lord Penzance 72;and see Jndicatuie Act,ia73,B.25(9). In D. W. & W. Ey. Oo. v. Slattery, L. E. 3 App. Cas. at p. 1177. T. By. Co., 86 Wis. 64; 56 N. W. Rep, 161; New Orleans & C. E. Co. v. Schneiper, 60 Fed. Bep. 210; S C. C. A. 571; Washington & 6. B. Co. v. Tobriner, 147 U. S. 571; 13 Sup. Ct. Bep. 557; Grand Trunk By. Co. o. Ives, 144 U. S. 408; 12 S. Ct. Bep. 679. (n) In The Clara (102 U. S. 203), it is said, " where the fault is wholly on one side the party in fanlt must bear his own loss, and compensate the other party, if such p irty liave sustained any damage. If neither AGGRAVATION OF INJURY. 491 American courts it has been held that if the plaintiff's act has aggravated the extent of the damage, he can only recover what he has suffered from the defendant's act alone (o); but this has not been the rule in our courts, (o) Sherman v. Fall Blver lion Co., 2 By. Co., 21 Barb. 273; Lawrence v. Hous- AUen, 624; Ch^e v. New York Central atonic Ry. Oo., 29 Conn. 390 ; [see infra] . party is in fault, neither is entitled to compensation from the other. If both ate in fault the damages wll ,be divided." — 1 Parsons on Ship. & Adm., 525, 526; The Morning Light, 2 Wall. 550; Union Steamship Co. V. New York, etc., Co., 21 How. 307. See, also. The Schooner Catherine o. Dickinson, 17 How. 170; Foster v. The Miranda, 6 McLean, 221; Desty on Ship. & Adm., § 403; St. Louis, etc., Line v. Red River, etc.. Line, 22 Fed. Rep. 347; Simpson v. The State of Cal., 54 Fed. Rep. 404; Hawkins v. The Viola, 60 Fed. Rep. 296; Fisher v. The Brinton, 59 Fed. Rep. 714; The Anerly, 58 Fed. Rep. 794; The Queen, 40 Fed. Rep. 694; The Dorris EckhofE, 41 Fed. Rep. 156 ; McCabe v. Old Domnion S. S. Co., 31 Fed. Rep. 234; The Haverton, 31 Fed. Rep. 563; The Fred W. Chase, 31 Fed. Rep. 91; The Sam Brown, 29 Fed. Rep. 650; The Plymothean, 68 Fed. Rep. 395; The Gulf Steam, 64 Fed. Rep. 809; The Max Morris v. Curry, 137 tJ. S. 1 ; 11 S. Ct. Rep. 29. That contributory negligence bars an action at law. — See Owners of the Steamboat Farmer », McCraw, 26 Ala. 189; Broadwell v. Swigert, 7 B. Mon. 39; Arctic Fire Ins. Co. v. Austin, 69 N. Y. 470. Contra, Ander- son V. The Ashebrooke, 44 Fed. Rep. 124; Finch «. The Lighter Mystic, 44 Fed. Rep. 398; The Max Morris, 28 Fed. Rep. 881. (o) While as stated in the text if the plaintiff's act has aggravated the extent of the damage, he can only recover what he has snfiered from the defendant's act, this is only true when the injury caused by the plain- tiff's negligence is capable of a distinct separation from the injury caused by defendant.— Gonld v. McEenoa, 86 Fa. St. 297; 27 Am. Rep. 705; Matthews v. Warner, 29 Gratt. 670; Stebbins v. Central, etc., R. Co., 54 Vt. 464; 41 Am. Rep. 855; Wright v. Illinois, etc.. Telegraph Co., 20 la. 195; Hibbard v. Thompson, 109 Mass. 286; Hunt v. Lowell Gas Co., 1 Allen, 343 ; Fay v. Parker, 33 N. H. 342; Denver & R. 6. Co. v. Morton, 3 Colo. App. 155; 32 Pac. Bep. 345. This rule has been adopted in Tennessee and Georgia. — Nashville, etc., R. Co. V. Carroll, 6 Heisk. 347; Whirley v. Whiteman, 1 Head, 619; Atlanta, etc., R. Co. v. Ayers, 63 Ga. 12 ; Postal Telegraph Cable Co. o. Zopfl, 93 Tenn, 369; 24 S. W. Rep. 633; Central R. & B. Co. v. Smith, 78 Ga. 694; 3 S. I!. Bep. 397; 2 Thomp. on Neg. 1163; Beach on Contrib- utory Neg. 76. One of the American cases cited by the author Is, it would appear, an illustration of this rule. In Sherman v. Fall River Iron Co. (2 Allen), 492 CONTRIBDTOEr NEGLIGENCE. but the defendant has been held liable (if at all) for the whole damage {p), except where the effect of the plaintiff's negligence is separable from that of the defendant (q). (p) Greenland v. Chaplin, 6 E±. 213; (;) See the cases, ante, Ch. I., Frozl- and see ante, Ch. I., as to rale relating mate Causes; and see post, Ch. Vm,, to proximate damage. Damages. 521, It was held that a lessee might maintain an action against one who laid gas pipes In neighboring streets so imperfectly that gas escaped therefrom through the ground and into the water of the well upon prem- ises hired and used by him for a livery stable thereby rendering it unfit for use, and making the enjoyment of the estate less beneficial, although the nuisance might have existed in a less degree when the premises were hired ; and that a recovery might be had for the inconvenience to which plaintiff was thereby subjected, and the expenses incurred in reasonable and proper attempts to exclude gas from the well, but not for an injury caused by allowing his horses to drinls: the water, after he knew that it was corrupted by the gas. In Chase v. New York Central B. Co. (2i Barb. 273), it was held that in an action brought to recover damages for injuries done to plaintiff's house, grounds, fruit trees, etc., by water alleged to have been turned on to the plaintiff's land by the defendants in constructing a railroad, it was proper to charge the jury that the rule of damages in that class of cases was the difference between the value of the plaintiff's premises be- fore the injury happened, and the value immediately after the injury, taking into account only the damages which resulted from the defend- ant's acts. In Lawrence v. Housatonlc R. Co. (29 Conn. 390), the defendants claimed that the Injury of plaintiff was originally slight, and was aggra- vated by his neglect to take care of himself and to follow the advice of his physician, and prayed the court to instruct the jury that if plaintiff did not regard the advice of his physician, they had a right to infer that the injury was thereby aggravated and the plaintiff could recover for ' nothing after his own Imprudence. The court did not so instruct the jury but directed them that if they should find a verdict for the plaintiff, he was entitled to recover full compensation for all the mental and phy< sical injury which they should find on the evidence that he had sustained by reason of the defendant's negligence. On a motion of the defend- ant's for a new trial, it was held that this direction was proper. It Is the rule, however, that a patient cannot recover for injuries consequent upon the unskillful or negligent treatment by his physician, If his own negligence directly contributed to them to an extent which can not be distinguished and separated. — Hibbard v. Thompson, 109 Mass. 286; Potter B. Warner, 91 Pa. St. 362; 36 Am. Rep. 668; Toung v. Mason, 8 Ind. App. 264; 35 N-. E. Rep. 621; Becker v. Janenski, 27 Abb. N. C. 45; CONTRIBUTORY NEGLIGENCE MASTER AND SERVANT. 493 [396] The cases where a servant has entered upon a par- ticular employment with notice of its dangerous condition are 15 N. Y. S. Rep. 675; Du Bois v. Becker, i N. T. S. Rep. 768; Lower o. Franks, 115 lod. 334; 17 N. E. Bep. 630; Nelson v. Harrington, 72 Wis. 591; 40 N. W. Rep^. 228; Swanson v. French (la.), 61 N. W. Bep. 407. But if he has exercised ordinary care in the selection of a competent physician or surgeon, and the injnry is aggravated by the unskilled treat- ment of snch physician or surgeon, the defendant may, nevertheless, be liable In damages for the unfavorable result. — Pnllman Palace Car Co. v. Bluhm, 109 lU. 20; Houston, etc., R. Co. v. HoUis, S. C. Tex., 4 Tex. Law Rev. 423; Nagel v. The Missouri Pac. Ry. Co., 75 Mo. 653; 42 Am. Rep. 418. Where plaintiffs arm was broken through the negligent conduct of the defendant and the defendant exercised ordinary care in the selection of a surgeon, who failed to treat it properly, so that the bones failed to unite, making a false joint, it was held thai the defendant was liable in damages for the unfavorable result. — Pullman Palace Car Co. v. Bluhm, supra. See Yanhooser v. BerghoS, 90 Mo. 487. And when personal iniaries result from the negligence of defendant he is liable for the damages actoally sustained although they are aggravated by a tendency to disease on the part of the person injured. — McNamara V. The Village of Clintonville, 62 Wis. 207. Where defendant's negligence caused plaintiff's miscarriage and a few days afterwards she exposed herself to bad weather thereby aggravating her condition, it was held, that if she went out, not carelessly and reck- lessly, but because she " felt " well enough, she was justified in doing so.— Hope V. Troy & L. R. Co., 40 Hun, 438. Even in an action for malpractice the rule of apportionment of damages prevails whjere that is possible.-^ Hibbard v. Thompson, 109 Mass. 286; 2 Thomp. on Neg. 1215. Servant Bemaining in Master's Service with Knowledge ol Bisk. — In some cases it is held that the servant, by remaining in the master's employment after discovery of a defect in the machinery or tools, is deemed to have assumed the risks incident to the service, and to have waived any claim for damages in case of injury. — Fones v. Phillips, 39 Ark. 17; Hayden v. Mnfg. Co., 29 Conn. 548; Georgia, etc.,R. Co. v. Ken- ney, 58 Ga. 485; Chicago, etc., R. Co. u. Asbury, 84 111. 429; Sullivan v. Louisville Bridge Co., 9 Bush, 81; Buzzell v. Mnfg. Co., 48 Me. 113; Foley V. Chicago, etc., R. Co., 48 Mich. 622; Clark v. St. Paul, etc., R. Co., 28 Minn. 128 ; Dale v. St. Louis, etc., R. Co., 63 Mo. 455; Cowles v. Richmond, etc., E. Co., 84 N. C. 309; Kelley v. Silver Spring Co., 12 R. 1. 112; Hough V. Texas, etc., R. Co., 100 U. S. 213; Dorsey v. Phillips, 42 Wis. 583; Beall v. Pittsburgh, etc., Ey. Co., 38 W. Va. 625; 18 S. E. Eep. 729; Little Rock & M. E. Co. v. Moseby, 56 Fed. Rep. 1009 ; 6 C. C A. 225 ; Louisville, E. & St. L. C. R. Co. v. Allen, 47 111. App. 465; Eooney v. 494 CONTBIBUTORY NEGLIGENCE. [397] somewhat peculiar, but it must be remembered that there is a contract, or mutual consent, on both sides to accept Sewall & D. C. Co. (Mass.), 36 N. E. Rep. 789; Michael v. Stanley, 75 Md. 464; 23 Atl. Bep. 1094; St. Louis, A. & T. By. Co. v. Eelton, 55 Ark. 483; 18 S. W. Rep. 933; Missouri Pac. Ry. Co. v. Somers, 78 Tex. 439; 14 S. W. Rep. 779; Green v. Cross, 79 Tex. 130; 16 S. W. Rep. 220; New York, L. E. & W, R. Co. o. Lyons (Pa.), 13 Atl. Rep. 205; NeUing v. Industrial Mfg. Co., 78 Ga. ^60; Lucey v. Hannibal Oil Co. (Mo.), 31 S. W. Rep. 340; Norton v. LoulsvUle & N. R. Co. (Ky.), 30 S. W. Rep. 599. An employe does not assume the risk unless he knows or reasonably apprehends the danger.— Lee v. Southern Pac. R. Co., 101 Cal. 118; 35 Pac. Rep. 672; Davidson ». "Cornell, 132 N. Y. 228; 30 N. E. Rep. 573. In others it Is held that a servant, by remaining in the service of his master after discovery of a defect in the machinery or of the incompe- tency of a fellow-servant, is guilty of contributory negligence. — Lumley ». Caswell, 47 la. 159; AUerton Packing Co. v. Egan, 86 III. 253; Clark v. St. Paul, etc., R. Co., 28 Minn. 128; Crutchfleld v. Richmond, etc., R. Co., 78 N. C. 300; Smith v. The Seraphis, 49 F^d. Rep. 393; Birmingham By. & E. Co. V. Allen, 13 So. Rep. 8; Carroll b. Pennsylvania Coal Co. (Pa.), 16 Atl. Rep. 688 ; Murtaugh ». New York, etc., R. Co., 49 Hun, 456; 3 N. Y. S. Rep. 483; Woodward Iron Co. ij. Jones, 80 Ala. 123. But where the defect is slight and of such a character as that a prudent man would run the risk of Injury, it has been held that the servant may, though he continues in the service with the knowledge of the fact, re- cover.— Kroy c. Chicago, etc., R. Co., 32 la. 357; Buzzellt;. Mnfg. Co., 48 Me. 113; Patterson v. Pittsburg, etc., R. Co., 76 Pa. St. 389; Greene V. Minneapolis, etc., R. Co., 31 Minn. 248; Conroy v. Vulcan Iron Works, 62 Mo. 35; Flynn v. Kansas, etc., R. Co., 78 Mo. 195; Hawley «. New York, etc., R. Co., 82 N. Y. 370; Hamilton v. Rich Hill C. M. Co., 108 Mo. 364; 18 S. W. Rep. 977; Chicago & G. W. R. Co. v. Travis, 44 111. App. 466; Thorpe v. Missouri Pac. Ry. Co., 89 Mo. 650; 2 S. W. Rep. 3. And if the master has promised to repair the defect within a reasonable time, the fact that the servant subsequently remains in his employment will not of itself constitute contributory negligence on thepart of the servant. That is a question for the jury to determine. — Hou^ v. Bail- road Co., 100 XJ. S. 115; Conroy v, Vulcan Iron Works, 62 Mo. 35; Lan- ing o. Railroad Co., 49 N. Y. 521 ; Moak's Underhill on Torts, 61 ; Manufacturing Co. v. Morrissey, 40 Ohio St. 148; 48 Am. Rep. 669; Roth- enberger v. Northwestern C. M. Co. (Minn.), 59 N. W. Rep. 631; Chicago Drop P. & F. Co. V. Van Dam, 149 111. 337; 36 N. B. Bep. 1024; Burling- ton & C. R. Co. V. Liehe, 17 Colo. 280; 29 Pac. Rep. 175; McDowell d. Chesapeake, etc., R. Co. (ICy.), 18 S. W. Rep. 871; Stephenson v. Dun- can, 73 Wis. 404; 41 N. W. Bep. 337; Atchison, T. & S. F.' B. Co. u. Mldgett (Kan. App.), 40 Pac. Bep. 995; Eddy ». Bodkin (Tex. Civ. App.), CONTKIBUTORY NEGLIGENCE — MASTER AND SERVANT. 495 the [398] existing state of things. The defendant is said to be guilty of negligence in keeping his premises or machinery 28 S. W. Rep. 54; Indianapolis Union Ey. Co. o. Ott (Ind. App.), 38 N. £. Rep. 842. It is not enough that the servant complained of the defect. — Ford v. Fitchbnrg B. Co., 110 Mass. 240; Snow v. Railroad Co., 8 Allen, 411 ; Pat- terson V. Railroad Co., 76 Pa. St. 389. As where the master in acknowl- edging the defect said that he was basy. — Breig v. Chicago & W. M. Ry. Co., 98 Mich. 222; 57 N. W. Rep. 118. His right of action depends npon the promise. But this does not ex- case the servant from the exercise of ordinary care on his part; it removes from the servant the burden of establishing dae care and im- poses it npon the master. — Mr. Kelly's note to Union Manaf actnring Co. V. Morrissey, supra, 22 Am. Law. Reg. 581. See Indianapolis & St. L. By. Co. V. Watson, 114 Ind. 20; 14 N. E. Rep. 721; IS N. B. Bep. 824. It is there pointed ont that the casnal connection between the employer's negligence and the injury is broken, not on the expiration of a reasonable time to repair the defect, but at the time the defect becomes so plain that a person of ordinary care would not assume the risk in con- tinuing to work the defective machinery. In Parody v. Chicago, etc., R. Co, (15 Fed. Rep. 205), where a master expressly promises to repair a defect in the machinery used by his ser- vants, it was held the servant mlghtrecover for an injury caused thereby, within such period of time after the promise as would be reasonable to allow for its performance. The general rule is that if an employe continues in the employment after the lapse of a reasonable time for making the repairs as promised, he assumes the risks of injury from the defects as if no promise of repair had been made. — Davis v. Graham, 2 Colo. App. 210; 29 Pac. Rep. 1007; Weber Wagon Co. v. Kehl, 139 111. 644; 29 N. B. Rep. 714; Eureka Co. v. Bass, 81 Ala. 200; 8 So. Rep. 216; Lyttle v. Chicago & W. M. Ry. Co., 84 Mich. 289; 47 N. W. Rep. 571; Connsell v. Hall, 145 Mass. 468; 14 N. E. Rep. 530. In Manufacturing Co. v. Morrissey (40 Ohio St. 148), the plaintiff called the attention of the foreman of the shop to the bad condition of the machiift on which he was working, jointing staves; and the foreman replied, "You joint a few staves; get out some staves to keep these fellows going and I will take it upstairs and have it fixed." Shortly after the injury occurred. About two weeks before this, plaintiff heard the foreman say to one of the workmen, who called his attention to the condition of the machine, that he would get it fixed, but he wanted him to keep on working. The court held that the workman's knowledge of the defect in the machine was not, as a matter of law, conclusive of con- tributory negligence, but a fact to be considered by the j ary in deter- mining whether the workman's own negligence contributed to the 496 CONTRIBUTOET NEGLIGENCE. in a [399] dangerous state, and the plaintiff is guilty of neg- ligence in accepting the service, or in his acts, as the case may accident by which he was injnTed. See Graham v. Newbury Orrel C. & C. Co., 38 W. Va. 273; 18 S. E. Eep. 684; Schlitz ». Pabst Brewing Co., (Minn.), 59 N. W. Eep. 188. In Conroy v. Vulcan Iron Works (62 Mo. 35), plaintiff knew the defect three days before the injury, and reported it to the master, who promised to repair it, but " could not do eveiything at once," and the court held the question whether the servant was gnUty of negligence in remaining in the master's service after knowledge of the defect and a promise by him to repair it, was for the jury. See Goldberg v. Schrayer, 37 111. App. 316. In Hough V. Railway Co. (100 U. S. 213), complaint was made by defendant's engineer of a defective pilot, which he was promised would be remedied, but which was not, and the engineer was thereby injured and the court held that the subsequent use of the locomotive " in the well grounded belief that it will be put in a proper condition within a reasonable time, does not necessarily, or as matter of law, make him guilty of contributory negligence. This is a question for the jury whether in relying upon such promise and using the machinery after be knew its defective or insufficient condition, he was in the exercise of due care." But when the employment is not hazardous and no gr^at skill or care is required in the use of the machinery or tools by the servant, it has been held that the fact that the servant continues to use the tools after knowl- edge of their defective character and a promise by the master to repair them is, notwithstanding, such negligence as will bar a recovery. In Marsh v. Chickering, N. Y. Ct. App., 33 Alb. Law Jour. 262, the plaintiff, a servant in defendant's employ, was lighting a street lamp in front of his master's premises when the ladder on which he stood slipped and he fell and was injured. It had no hooks or spikes, and he had notified the defend- ant's superintendent that it was dangerous, and the latter had promised to supply them, but the plaintiif continued to use it without them. It was held that he cojild not recover for the injury. — (See contra in similar cases: East Tennessee, etc., R. Co. v. Duffield, 12 Lea, 63; 47 Am. Rep. 319; Guthrie v, Louisville, etc., R. Co., 11 Lea, 372; 49 Am. Rep. 286.) In Marsh v. Chickering, supra, the court said: "In cases, however, where persons are employed in the performance of ordinary labor, in which no machinery is used, and no material famished, the use of which requires the exercise of great skill and care, it can scarcely be claimed that a defective instrument or tool furnished by the master, of which the employe has full knowledge and comprehension, can be regarded as making out a case of liability witiiin the rule laid down. A com- mon laborer who uses agricultural implements while at work upon a farm or in a garden, or one who Is employed In any service not requiring CONTRIBUTORY NEGLIGENCE MASTER AND SERVANT. 497 be. [400] -Now, although the defendant might have pre- vented the damage by ordinary care, still he was not bound to great skill and jndgment, and who uses the ordinary tools employed In such work, to which he is accnstomed, and In regard to which he has perfect knowledge, can hardly be said to have a claim against his em- ployer for negligence, if in using a utensil which he knows to be defect- ive he is accidentally injured. It does not rest with the servant to say that the master has superior knowledge, and has thereby imposed upon him. He fully comprehended that the spade, or the hoe, or the ladder, or the instrument which he employed was not perfect ; if he was thereby injured It was by reason of bis own fault and negligence. The fact that he notified the master of the defect, and asked for another instrument, and the master promised to furnish the same, in such a case does not render the master responsible if an accident occurs. We have been referred to no adjudicated case which upholds the liability of a party under circumstances of the same character as those presented by the evidence here. A rule imposing such liability would be far-reaching, and would extend the principle stated to many of the vocations of life for which it was never intended. It is one of a just and salutary character, designed for the benefit of employes engaged in work where machinery and materials are used of which they can have but little knowledge, and not for those engaged In ordinary labor which only requires the use of implements with which they are entirely familiar. The plaintifE was of the latter class of laborers, and the work in which he was engaged was not of a character which would entitle him to the protection of the prin- ciple referred to. £ven if it may be considered that a right of action exists in this case in favor of the plaintiff, under any circumstances, we think that the evidence would not justify a recovery, for the reason that the defendants did not fail in furnishing a proper ladder for the use of the plaintiff in lighting the lamps. The rule is that the master does not owe to his servants the duty to furnish the best known or conceivable appliances; he is simply to furnish such as are reasonably safe and suit- able, such as a prudent man would furnish if his own life were exposed to' the danger that would resnlt from unsuitable or unsafe appliances. — Burke v. Wetherbee, 98 N. Y. 562; Shear. & Hedf. Neg., § 92. The de- fendants had procured a ladder which ordinarily would be regarded as safe for the purpose for which it was used. The plaintiff had used it for a long time without any accident or danger, and on the very night of the accident It had been placed in position, and used some six times tuccef'sfully. That it failed at last for any reason does not establish that it was unfit for nse. It might perhaps have been more perfect if it had had hooks and spikes, but this improvement was not absolutely essential to relieve the defendants from liability. It was enough that it was rea- sonably safe, and suitable within the rule cited, and under such circum- stances an action will not lie." 498 COKTEIBUTOET NEGLIGENCE. do SO [401] by reason of the consent of the plaintiff to the existing state of things, and therefore the plaintiff's negligence becomes equivalent to " contributory negli- gence " (r). These cases are the converse of those above mentioned, where the defendant has, so to say, bound him- self by his conduct to save the plaintiff harmless, for here the plaintiff by his conduct agrees to accept the danger, or to save the defendant harmless (r). It is a matter of common sense that a person who is crossing a railway line upon a level should look before be crosses (s) ; but, possibly, if there were a statutory duty upon the railway to keep gates or guards, the defend- ants might mislead the plaintiff into a feeling of security, and his not looking when the gates were open or unguarded, might not be evidence of negligence (<)• The case of "Wyatt v. Gt. W. Ey. Co. (w) is a singular one. There was a statutory duty upon the defendants to (r) Senior v. Ward, 1 Bll. & EU. 385 ; & K. W. By. Co., L. B. 2 C. F. 631 ; 36 L. Caswell V. Worth, 6 B. & B. 849 ; see ante, J. 0. F. 249. Master and Servant. ' (0 Staplej «. L. B. & S. 0. By. Oo., L. (r) It Is a question for the jnry what B. 1 Ex. 21 ; 35 Ii. J. Ex. 7 ; see Skelton amount of danger the plaintiff under- v. L. & N. W. By. Co., taipra; see Davey took to incur, and the defendant is not e. L. & S. W. By. Co., ante (guard at ezensed for an amount of negligence the gate haying no statutory duty to beyond tliat; see Clayards v. Dethick, 12 warn). Q. B. 439. («) Wyatt o. Gt. W. By. Co., 6 B. & S. (x) Stnbley v. L. & N. W. By. Co., L. 709. Commented on in the recent case B. 1 Ex. 20 ; 35 li. J. Ex. 3; Skelton v. L. of Lax v. Darlington, aate. Level Crossings. — It is the duty of foot passengers approacbing a railroad track to look and listen before attempting to cross, and a failure to do so when one could have seen or heard an approaching train will constitute contributory negligence. — Gothard v. Alabama, etc., E. Co., 67 Ala. 115; Peoria, etc., R. Co. v. Clayberg, 107 111. 644; Wheelwright v. Boston, etc., B. Co., 135; Mass. 225; Louisville, etc., B. Co. v. Goetz, 79 Ky. 442; Haas v. Grand Bapids, etc., B. Co., 47 Mich. 401; Telfer v. North., etc., R. Co., 30 N. J. L. 138; Baltimore, etc., B. Co. v. Whitacre, 35 Ohio St. 627; Eailroad Co. v. Houston, 95 U. S. 697; Schoneld v. Chi- cago, etc., B. Co., 114 tr. S. 615; Wendell v. N. Y., etc., R. Co., 91 N. T. 420; State v. Manchester B. Co., 52 N. H. 528; Baughman v. Shenango, etc., B. Co., 92 Pa. St. 335; Union Pac. By. Co. v. Adams, 33 Kan. 427; 6 Pac. Rep. 529; Dowe ». Flint & P. M. B. Co. (Mich.), 60 N. W. Bep. 838; Sprow V. Boston & A. K. Co. (Mass.), 39 N. E. Rep. 1024. CONTRIBUTORY NEGLIGENCE RAILWAY CROSSINGS. 499 [•402] erect gates, and the plaintiff coming when there was nobody to open the gates opened them himself, and This rule applies not only to foot passengers but to all travelers cross- ing railroads. — Johnson v. Chicago & N. W. By. Co. (Iowa), 69 N. W. Rep. 66; Smith v. Philadelphia & B. B. Co., 160 Pa. St. 117; 28 Atl. Bep. 641; GnU, C. & S. F. By. Co. v. Moss, 4 Tex. Civ. App. 318; 23 S. W. Eep. 475; Tyler v. Old Colony R. Co., 157 Mass. 336; 32 N. E. Bep. 227; Texas & N. O. By. Co. v. Brown, 2 Tex. Civ. App. 281 ; 21 S. W. Bep. 747; 30 W,N. C. 492; Hansen v. Chicago, etc.. By. Co., 83 Wis. 631; 53 N. W. Eep. 909; Magner v. Truesdale, 63 Minn. 436; 55 N. W. Rep. 607; Carson v. Federal, etc.. By. Co., 147 Pa. St. 219; 23 Atl. Eep. 369; 29 W. N. C. 402; Ward v. Bochester Electric By. Co., 63 Hun, 624; 17 N. T. S. Bep. 427; Ehrisman v. East Harrisburg City Pass. By. Co., 150 Pa. St. 180; 24 Atl. Bep. 696; 30 W. N. C. 373; Thornton a. Cleveland, etc.. By. Co., 131 Ind. 492; 31 N. E. Bep. 185; Qrostick d. Detroit, etc., B. Co., 90 Mich. 594; 51 N. W. Bep. 667; Herlisch v. Louisville, etc., E. Co., 44 La. Ann. 280; 10 So. Bep. 628; Chicago, B. I. & P. By. Co. V. Fitzsimmons, 40 111. App. 360; Toledo, St. L. &. K. C. B. Co. V. Cline, 136 HI. 41 ; 26 N. E. Eep. 846 ; Louisville, N. A. & C. By. Co. V. Stommel, 126 Ind. 35; 26 N. E. Bep. 863; Union B. Co. v. State, 72 Md. 163; 19 Atl. Bep. 449 ; Cincinnati, I., St. L. & C. By. Co. v. Howard, 124 Ind. 280; 24 N. E. Bep. 892; Cones v. Cincinnati, etc., By. Co., 114 Ind. 328; 16 N. E. Bep. 638; Pennsylvania E. Co. v. Peters, 116 Pa. St. 206; 9 Atl. Eep. 317; Harris v. Minneapolis & St. L. B. Co., 37 Minn. 47; 33 N. W. Bep. 12. Failure to so look and listen is, however, not necessarily negligence but is generally a question of fact. — Hendrickson v. Great Northern By. Co., 49 Minn. 246; 61 N. W. Bep. 1044; Cahill v. Cincinnati, etc., By. Co., 92 Ky. 346; 18 S. W. Bep. 2; Terre Haute &P. B. Co. v. Barr, 31 lU. App. 57; Chicago, M. & St. P. Ey. Co. ■». Wilson, 133 111. 56; 24 N. E. Bep. 555; Terre Haute &. I. E. Co. v. Voelker, 129 111. 540; 22 N. E. Bep. 20; Northern Pac. B. Co. v. Holmes, 3 Wash. T. 543; 18 Pac. Bep. 76; International & G. N. E. Co. v. Neff, 87 Tex. 303; 28 S. W. Bep. 283. It has been held that one driving a team should stop before passing over a railroad crossing (Henze v. St. Louis, etc., B. Co., 71 Mo. 636 ; Penn. Canal Co. v. Bently, 66 Pa. St. 30; Wilds v. Hudson, etc., E. Co., 29 N. Y. 315; Turners. The Hannibal, etc., B. Co., 74 Mo. 602; Littaur V. Narragansett Pier Co., 61 Fed. Bep. 691 ; Martin v. New York, etc., B. Co., 66 Hun, 636; 21 N. Y. S. Eep. 919; Kelly v. Chicago & A. E. Co., 88 Mo. 534. Contra, Leavenworth, etc., B. Co. v. Bice, 10 Kan. 426; Davis V. New York, etc., E. Co., 47 N. Y. 400) ; and one court has held that a person driving a carriage or team should get out and look up and down the track before crossing (Penn., etc., B. Co. ». Beale, 73 Pa. St. 504 ; Ellis V. Lake Shore & M. S. E. Co., 138 Pa. St. 606; 21 Atl. Eep. 140; 27 W. N. C. 146) ; but this is not the law generally (P. C. & St. L. E. Co. u. 500 CONTBIBUTOKY NEGLIGENCE. thej [403] closed upon him and injared him. The ma- jority of the Court (Cockburn, C. J., Crompton and Shee, Wright, 80 Ind. 236; Dolan v. Delaware, etc., B. Co., 71 N. Y, 286; DnfEy V. Chicago, etc., B. Co., 32 Wis. 269; Eelsey v. Staten Island B. T. Co., 78 Hun, 208; 28 N. Y, S. Bep. 974; Hinckle v. Bailroad Co., 109 N. C. 472; 13 S. B. Bep. 884; Alexander v. Bichmond &D.. E. Co., 112 N. C. 720; 16 S. E. Bep. 896) ; and one is not generally, as a matter of law, required to stop before crossing a railroad track when driving (Weber ir.New York Cent., etc., B. Co., 58 N. Y. 451; Spencer v. Illinois Cent. B. Co., 29 la. 65; Kellogg ». Bailroad Co,, 79 N. Y. 72; Galveston, H. & S. A. By. Co. V. Duelm (Tex. Civ. App), 24 S. W. Bep. 334; Illinois Cent. B. Co. V. Fishell, 32 III. App. 41; Chicago & I. B. Co. v. Lane, 130 HI. 116; 22 N. E. Bep. 613; Nosier v. Chicago, etc.. By. Co., 73 la. 268; 34 N. W. Bep. 860; Donohne v. St. Lonis, etc.. By. Co., 91 Mo. 357) ; nor is he as a matter of law required to lower the top of his carriage. — Stackus V. New York Central, etc., B. Co., 79 N. Y. 464. But he is not relieved of the duty of looking out by the fact that the top of his carriage is up. — New York, P. & N. B. Co. v. Kellam, 83 Va. 851; 3 S. E. Bep. 703. " In Delaware, L. & W. B. Co. v. Converse (129 TJ. S. 469; 11 S. Ct. Bep. 569), it was held, that the duty of plaintiff was, if his view of the track was obstructed, to have stood up in his carriage if by so doing he could have seen over the obstructions. " But without going to the extent of many of the authorities," said the court in Maryland Central B. Co. v. Neubear, 62 Md. 391, " and laying it down as an unqualified rule applicable to all cases that a traveler must actually stop before attempting to cross the rails to look and listen, we hold, with the concurrence of all the authorities, that he must at least exercise a reasonable precaution to look and listen before venturing over the rails, and his failure to observe that precaution is negligence per se^ if be attempts to drive a vehicle across the tracks in view of an approaching train, his conduct is worse than negligent, it Is simply reckless." — And see Grows v. Maine Central B. Co., 67 Me. 10.0; Chi- cago, etc., B. Co. V. Houston, 95 IT. S. 697; Chicago, etc., B. Co. v. Bell, 80 111. 102; Langhoff v. Milwaukee, etc., B. Co., 23 Wis. 43; Salter v. Utica, etc., B. Co., 75 N. Y. 273; Mynning v. Detroit, etc., E. Co., S. C. Mich., 26 N. W. Bep. 514; Union Pac. By. Co. v. Hutchinson, 39 Ean. 485; 18 Pac. Bep. 705; 19 Id. 312; Chicago, C, C. & St. L. By. Co. v. Arbaugh, 47 III. App. 360; Myers v. Baltimore & O. B. Co., 160 Pa. St. 386; 24 Atl. Bep. 747; 30 W. N. C. 492; State v. Baltimore & O. B. Co., 73 Md. 374 ; 21 Atl. Bep. 62 ; Mehegan v. New York, etc., E. Co., 126 N. Y. 768; 26 N. E. Eep. 936; International & G. N. By. Co. v. Kuehn, 70 Tex. 582; 8 S. W. Eep. 484; Allen v. Pennsylvania By. Co. (Pa.), 12 Atl. Eep. 493; Kelly v. Pennsylvania B. Co. (Pa.), 8 Atl. Bep. 856; Delaware, L. & W. By. Co. V. HefEernan (N. J.), 30 Atl. Bep. 678^ So where a ' pedestrian undertakes to cross a railroad track, when he sees a train CONTRIBUTOBY NEGLIGENCE — RAILWAY CROSSINGS. 501 JJ.) held that [404] the public right of way was ob- structed by statute, and the plaintiff had no right to remove approaching.— Pittsburgh, C, C. & St. L. By. Co. v. Bennett, 9 Ind. App. 92; 35 N. E. Eep. 1033; Craddock v. LouisviUe & N. R. Co. (Ky.), 16 S. W. Eep. 125; Baltimore & O. R. Co. o. Mah, 66 Md. 63. One crossing a railroad track must exercise the care of a person of ■ordinary prudence. — Burke v. New York, etc., R. Co., 73 Hun, 32; 26 N. Y. S. Rep. 1009; Gratiot ». Missouri Pac. E. Co., 116 Mo. 460; 21 S. W. Hep. 1094; Olsen v. Oregon, etc., Ey. Co., 9 Utah, 129; 33 Pac. Eep. 623; Easley v. Missouri Pac. Ey. Co., 113 Mo. 236; 20 S. W. Eep. 1073; Koehler v. Eochester, etc., E. Co., 66 Hun, 566; 21 N. Y. S. Repi 844; Hager v. Southern Pac. Co., 98 Cal. 309; 33 Pac. Eep. 119; Chicago, K. -& W. E. Co. V. Fisher, 49 Kan. 460; 30 Pac. Rep. 462; Galveston, H. & S. A. Ey. Co., V. Matula, 79 Tex. 677; 19 S. W. Eep. 376, affirming 79 Tex. 581 ; 15 S. W. Eep. 573 ; Eddy e. Powell, 49 Fed. Sep. 814 ; 4 U, 8. App. 369; 1 C. C. A. 448; International & 6. N. Ry. Co. v. Dyer, 76 Tex. 166; 13 S. W. Rep. 377; O'Connor ■a. Missouri Pac. Ry. Co., 94 Mo. 160; 7 S, W. Rep. 106; Clark o. Missouri Pac. Ry. Co., 35 Ean. 350; 11 Pac. Rep. 134; Wichita ^ W. R. Co. v. Davis, 37 Kan. 743; 16 Pac. Rep. 78; Mis- souri Pac. Ry. Co. v. Lee, 70 Tex. 496; 7 S. W. Eep. 857; Gulf, C. & S. F. Ry. Co. V. Scott (Tex. Civ. App.), 27 S. W. Eep. 827; Tobias v. Michi- gan Cent. R. Co. (Mich.), 61 N. W. Eep. 514; Sheehan v. Philadelphia & R. R. Co., 166 Pa. St. 354; 31 Atl. Eep. 120; Louisville & N. E. Co. v. Krey (Ky.), 29 S. W. Eep. 869. It is held iu some cases that the fact that a person attempting to cross a railroad track does not at the instant of stepping on it look to ascertain whether a train is approaching is not conclusive of a want of dne care on his part. — Chaffee v. Boston, etc., B. Co., 104 Mass. 108; Plnmmer 9. Eastern E. Co., 73 Me. 591; Kellogg v. Railroad Co., 79 N. Y. 72. But under different circumstances other cases have been decided to the con- -traiy. — Moore v. New York, etc, E. Co., 62 Hun, 621 ; 17 N. Y. S. Eep. 205; Derk e. Northern Cent. Ey. Co., 164 Fa. St. 243; 30 Atl. Eep. 231. An omission to ring a bell or sound a whistle by the railroad company win not excuse a traveler attempting to cross the track from looking or , listening for an approaching train. — The Maryland Central E. Co. v. Nenbenr, 62 Md. 391; Williams v. Chicago, etc., E. Co., 164 Wis. I; 24 N. W. Eep. 422; Bowers v. Chicago, etc., E. Co., 61 Wis. 457; Ormsbee ■V. Boston, etc., E. Corp. 14 R. 1. 102; Holland v. Chicago, etc., E. Co., 18 Fed. Rep. 243; Krauss v. WaUkUl Val. E. Co., 69 Hun, 482; 23 N. Y. S. Rep. 432; Maxey «. Missouri Pac. Ry. Co., 113 Mo. I; 20 S. W. Eep. •654; Horn v. Baltimore & O. R. Co., 54 Fed. Rep. 301 ; Missouri Pac. Ry. Co. V. Peay (Texas), 20 S. W. Rep. 57; Dlauhi v. St. Louis, etc., Ey. Co., 105 Mo. 646; 16 S. W. Rep. 281; Beyel v. Newport News & M. V. E. Co., 34 W. Va. 538; 12 S. E. Rep. 532; Griffith v. Baltimore & O. R. Co., 44 Fed, Eep. 674; Leak v. (Jeorgia Pac. Ey. Co., 90 Ala. 161; 8 So. Eep. 245; 502 CONTRIBUTORY NEGLIGENCE. the obstruction ; but [405] Blackburn, J., dissenting in a very clear judgment, said that if the plaintiff had not Brown v. Texas & P. By. Co., 32 La. Ann. 360; 7 So. Bep. 682; GalTes- ton, H. & S. A. E. Co. v. Kntac, 72 Tex, 643; 11 S. W. Rep. 127; Cnllen V. Delaware & H. C. Co., 113 N. Y. 667; 21 N. B. Kep. 716; Atchison, T. & S. F. B. Co. V. Hague, 51 Ean. 284; 38 Fac. Bep. 257; Johnson v. Chesapeake & O. B. Co. (Va.), 21 S. E. Bep. 238. Though the train was running at a dangerous and unlawful rate of speed. — Schofleld v. Chicago, etc.. By. Co., 114 U. S. 615; Hollands. Chicago,, etc., B. Co.,- 18 Fed. Bep. 243; Cincinnati, etc., B. Co., v. Butler, 103 Ind. 31; 2 N. E. Bep. 138; Texas & F. By. Co. v. Fuller, 5 Tex. Civ. App. 660; 24 S. W. Bep. 1090 ; Texas & N. O. By. Co. v. Brown, 2 Tex. Civ. App. 281; 21 S. W. Bep. 424; Korrady ». Lake Shore & M. S. By. Co., 131 Ind. 261; 29' N. E. Bep. 1069; Sala v. Chicago, etc., By. Co., 85 la. 678; 52 N. W. Bep. 664; Ivey v. East Tenn., etc.. By. Co., 88 Ga. 71; 13 S. E. Bep. 947; Taney v. Wabash, etc., By. Co., 93 Mo. 433; 6 S. W. Rep. 272; Kwiotkowski v. Chicago & G. T. By. Co., 70 Mich. 549; 38 N. W. Rep. 463. But see Gulf, C. & S. F. Ry. Co. v. Creeland (Tex. Civ. App.), 26 S. W. Bep. 153. From these cases may be deduced the general statement of law that for the defendant's negligence he is not responsible where the plaintifE's negligence was the immediate cause of the injury to himself. — Hogan :;. Tyler (Virginia), 17 S. E. Bep. 723; Marks v. Petersburg R. Co., 88 Va. 1; 13 S. E. Rep. 299; Evans & Howard F. B. Co. v. St. Louis, etc.. By. Co., 17 Mo. App. 624; Lloyd v. St. Louis, etc., Ry. Co. (Mo.), 29 S. W. Bep. 153. But if he could not have seen or heard the train it is not material that he did not look or listen. — Dyer v. Erie B. Co., 71 N. Y. 228; Chicago, etc., B. Co. V. Lee, 87 111. 454; Davis v. New York, etc., R. Co., 47 N. Y. 400. It is no excuse, however, that he was deaf and could not hear. — Zim- merman V. Hannibal, etc., R. Co., 71 Mo. 476; New Jersey Trans. Co. v. West, 32 N. J. L. 91; Lake Shore, etc., B. Co. t>. Miller, 26 Mich. 279; Illinois, etc., R. Co. v. Buckner, 28 111. 299; Laicher «7. New Orleans, etc., R. Co., 28 La. Ann. 320; Cleveland, etc., R. Co. v. Terry, 8 Ohio St. 570; Morris, etc., R. Co. v. Haslan, 38 N. J. L. 147; Furl v. St. Louis, etc., Ry. Co., 72 Mo. 168; Artusy o. Missouri Pac. By. Co., 73 Tex. 191; 11 S. W. Rep. 177; Galveston, H. & S. A. By. Co. v. Byon, 80 Tex. 59; 15 S. W. Bep. 688; Louisville & N. B. Co. v. Black, 89 Ala. 313; 8 So. Bep. 246; Schexnaydre v. Texas & P. By. Co., 46 La. Ann. 248; 14 So. Bep. 613; Mobile & 0. B. Co. v. Stroud, 64 Miss. 784. Such infirmity imposes on the individual the exercise of greater care in the use of the eyesight. — Central, etc., B. Co. v. Feller, 84 Fa. St. 226 ; Cleveland, etc., B. Co. v. Terry, 8 Ohio St 670; Morris, etc., B. Co. ». Haslan, 38 N. J. L. 147; McKlnney v. Chicago & N. W. Ry. Co. (Wis.)i "8 CONTRIBUTORY NKGLIGENCE — RAILWAY CROSSINGS. 503 contributed to the injury by any way of ordinary care, he could recover, as he had a right to go along the road sub- ject to the proper and legal obstruction by the defendants. N. W. Rep. 386; 59 N. W. Rep. 499; Schulte v. New Orleans, etc., R. Co., 44 La. Ann. 509; 10 So. Rep. 811; Thomas v. Chicago & G. T. Ry. Co., 86 Mich. 496; 49 N. "W". Rep. 647. Or blind. — See Winn v. Lowell, 1 Allen, 177; City of Centxalia v. Krouse, 64 HI. 19; Davenport v. Ruckman, 37 N. Y. 668; Sleeper o. San- down, 52'N. H. 244; Maloy v. Wabash, etc., Ry. Co., 84 Mo. 270. Nor is it an excuse that plaintiff was intoxicated. — Southwestern, etc., B. Co. V. Hankerson, 61 Ga. 114; Little Rock, etc., R. Co. v. Park- hurst, 36 Ark. 371; Yarnell v. St. Louis, etc., R. Co., 75 Mo. 675; Hous- ton, etc., R. Co. V. Sympkins, 64 Tex. 615; Fulton Co. N. G. Ry. Co. ». Butler, 48 111. App. 301 ; McDonald v. Chicago, etc., Ry. Co., 75 Wis. 121 ; 43 N. W. Rep. 744; Anderson v. Chicago, etc., Ry. Co. (Wis.), 68 N. W. Rep. 79; Johnson v. Louisville & N. R. Co. (Alabama), 16 So. Rep. 76; Hershey v. Tp. of MlUcreek (Pa.), 9 Atl. Rep. 452; Loftus o. Town of North Adams, 160 Mass. 161; 35 N. E. Rep. 674; Denver Tramway Co. V. Reed, 4 Colo. App. 500; 35 Pac. Rep. 269; Munley v. Hull (Pa.), 3 Lack. Jur. 277; Bradwell v. Pittsburgh & W. E. Pass. Ry. Co., 168 Pa. St. 105; 25 Atl. Rep. 623. But whether intoxication is such contributory negligence as will bar a recovery is usually a question for the jury. — Hlinois, etc., R. Co. v. Cragin, 71 111. 177; Toledo, etc., R. Co. ». Riley, 47111. 514; Baltimore, etc.jR. Co. V. Boteler, 38 Md. 568; Barker v. Savage, 45 N. Y. 191. In Georgia it is a complete defense (Southwestern, etc., B. Co. v. Hankerson, 61 Ga. 114); unless the intoxication did not immediately contribute to the injury. — Central R. & B. Co. o. Fhinazee, 93 Ga. 488; 21 S. E. Rep. 66. It is otherwise with respect to children of tender years and the old or inflrm, for they are expected to exercise only that degree of care due from those of their age or condition. — Chicago, etc., B. Co. v. Murray, 71 lU. 601 ; Haas v, Chicago, etc., R. Co., 41 Wis. 44; Thurber v. Harlem etc., R. Co., 60 N. Y. 326; Isabell v. Hannibal, etc., R. Co., 60 Mo. 476; Elkins V. Boston, etc., R. Co., 115 Mass. 190; Paducah, etc., R. Co. «. Hoehl, 12 Bush, 41 ; Philadelphia, etc., R. Co. v. Spearen, 47 Pa. St. 300; O'Mara v. Hudson, 38 N. Y. 445; Baker v. Flint & P. M. R. Co., 68 Mich. 90; 36 N. W. Rep. 836; Central Trust Co. v. Wabash, etc., Ry. Co., 81 Fed. Rep. 246; San Antonio & A. P. Ry. Co. v. Vaughn, 5 Tex. Civ. App. 195; 23 S. W. Rep. 745. " The old, the lame and the Inflrm," said the court, in O'Mara v. Hud- son, supra, " are entitled to the use of the street, and more care must be exercised toward them by engineers than towards those who have better powers of motion. The young are entitled to the same rights, and can :,504 CONTKIBDTOEY NBGLIGBNCE. It has been decided several times, and must be taken as the law, that not only will the plaintiff be disentitled to not be expected to exercise as good foresight and vigilance as those of maturer years." One physically deficient is required to exercise care in proportion to his defect.— Simms v. South Carolina Ey. Co., 27 S. C. 268; 3 8. B. Eep. 301. See Baltimore Traction Co. o. Wallace, 77 Md. 435; 26 Atl. Rep. 618. A plaintiff whose mental abstraction contributed to his injury, cannot recover therefor.— Gulf, C. & S. F. By. Co. ». York, 74 Tex. 364; 12 S. W. Kep. 68; Trousclair <». Pacific Coast S. S. Co. 80 Cal. 621; 22 Pac. Bep. 258; Wilds v. Brunswick & W. B. Co., 82 Ga. 667; 9 S. £. Bep. 696. The duty of giving signals on approaching a crossing is generally im- posed by statute upon railroad companies, and they are liable for injuries caused by such omission. — Memphis, etc., B. Co. v. Copeland, 61 Ala. 376; Peoria, etc., B. Co. v. Slltman, 88 111. 629; Pollock v. Eastern B. Co., 124 Mass. 168; Ransom v. Chicago, etc., By. Co., 162 Wis. 178; 22 N. W. Rep. 147 (team frightened on highway parallel with track). But proof of the violation of the statute is not sufficient to establish the company's liability. — Holman v. Chicago, etc., R. Co., 62 Mo. 662; McGrath v. New York Central, etc., R. Co., 63 N. Y. 522. There must be proof that the injury resulted from the omission. — Briggs V. New York Central, etc., B. Co., 72 N. Y. 26; Chicago, etc., R. Co. V. McLean, 40 111. 218. And a failure on the part of the company to comply with the statutory regulation does not render it liable unless such failure contributed to the injury. — Field v. Chicago, etc., R. Co., 14 Fed. Bep. 332; Bansom z). Chicago, etc., R. Co., 22 N. W. Bep. 147; Cincinnati, etc., B. Co. v. But- ler, 2 N. E. Bep. 138; Knight v. New York, etc., B. Co., 99 N. Y. 26; 1 N. E. Bep. 108. But where a railroad company neglects to perform a statutory duty, and Injury results therefrom, the corporation will be liable, although the negligence of the injured person contributed to the accident, provided his negligence was induced or brought about by the negligence of the company. — Kanowski v. Grand Trunk By. Co. of Canada, 57 Mich, 625; 24 N. W. Rep. 801; 32 Alb. Jour. 509. In the absence of statutory requirement there is no legal obligation on a railroad company to keep at the crossings of the public roads fiagmen to give warnings to travelers on such roads of the passing of trains. — State V. Philadelphia, etc., B. Co., 47 Md. 76; Welsch v. the Hannibal, etc., R. Co., 72 Mo. 461; Sellars v. Richmond & D. R. Co., 94 N. C. 654. But where the crossing is exceptionally dangerous, such objection may exist. —Hubbard v. Boston & A. R. Co., 162 Mass. 132; 38 N. E. Rep. 366. But when flagmen are employed by statute to give warnings at cross- CONTRIBUTORY NEGLIGENCE — KAILWAY CROSSINGS. 505 recover, if he has been guilty of contributory negligence himself, but also if those with whom he is identified have Ings to travelers, the company will be liable for an injury occasioned by an omission of a flagman to perform this duty. — Delaware, etc., E. Co. -». TofEey, 38 N. J. L. 525; Chicago, E. I. & P. E. Co. v. Clongh, 134 111. 686; 26 N. E. Eep. 664; 29 N. E. Rep. 184. The withdrawal of a flagman from a highway crossing where he is usu- ally kept has been held negligence. — Burns v. Korth Chicago EoUing Mill Co., 65 Wis. 312; 27 N. W. Eep. 43. But one in the habit of almost daily passing over a railroad crossing, who was injured there nearly two years after the discontinuance of the use of an alarm bell, cannot insist that the failure to remove the bell was negligence on the part of the company. — WellenhofEer u. Hew York, etc., E. Co., 66 Hun, 634; 21 N. Y. S. Eep. 866. Where one attempted to cross a track when invited to do so by a flag- man, though in view of an approaching train, it was held that he might recover for injuries so received. — Sweeny v. Old Colony R. Co., 10 Allen, 368; Chaffee b. Boston, etc., E. Co., 104 Mass. 108; Henniug v. Caldwell, 63 Hun, 635; 18 N. Y. S."Eep. 339. And where a traveler was crossing a railroad track in a wagon in a place of extra danger, and the flagman did not notify him of the coming of a train until after he had begun to cross, and the traveler then misun- ilerstood the warning, and went forward when he ought to have retreated, it was held that such misunderstanding should not, under the circum- stances, be imputed to him as negligence.— New York, etc., E. Co. v, Eandel, 47 N. J. L. 144. See Bobbins v. Pitchburg B. Co., 161 Mass. 145; 36N. E. Eep. 752. Where a crossing is particularly dangerous and requires extraordinary effort to ascertain whether it is safe to attempt to cross, one familiar with the locality and the danger surrounding it, must use care proportioned to the probable danger. — Cincinnati, etc., E. Co. v. Butler, 103 Ind. 31 ; 2 N. E. Eep. 138. ' Where the view of the track Is obstructed.— Ariz v. Chicago, etc., B. Co., 44 la. 284; Dimick v. Chicago, etc., E. Co., 80 111. 338; Cordell v. IT. Y., etc., E. Co., 70 N. Y. 119; Indianapolis, etc., E. Co. o. Smith, 78 III. 112; Pennsylvania E. Co. v. Matthews, 36 N. J. L. 631; Craig v. N. Y., etc., E. Co., 118 Mass. 431; McCrory o. Chicago, etc., By. Co., 31 Fed. Eep. 631 ; Houghton v. Chicago & G. T. By. Co., 99 Mich. 308 ; 68 N. Y. Eep. 314; Shufelt o. Flint & P. M. E. Co., 96 Mich. 327; 65 N. W. Eep. 1013; Chicago, K. & W. E. Co. v. Fisher, 49 Kan. 460; 30 Pac. Eep. 462; Clark V. Northern Pac. E, Co., 47 Minn. 380; 50 N. W. Eep. 365; Heaney ■». Long Island B. Co., 112 N, Y. 122; 19 N. E. Eep. 422; Atchison, T. & S. F. R. Co. V. Townsend, 39 Kan. 115; 17 Pac. Eep. 804; Marty v. Chicago, etc., By. Co., 38 Minn. 108; 35 N. W. Eep. 670; McCrory v. Chicago, etc., By. Co., 31 Fed. Rep. 631; Seefeld v. Chicago, etc., Ry. 506 CONTKIBUTOEY NEGLIGENCE. been guilty of contributory negligence (as) . The above rule [406] has been disapproved of in Scotland (see Campbell ou Negligebce, 2ud ed., p. 185), and in America the rale is that the plaintiff is only defeated by showing that the person whose negligence is sought to be imputed to the plaintiff is under his direction, or that he controlled the plaintiff's personal conduct (see Shearman on Negligence, para. 46). In one case in America it was held that a wife driven by her husband was not identified with him unless (x) Thorogood v. Bryan, 8 0. B. 115 sadnmkeag Log-DiiTing Co., 85 Me. 221 ; (plaintiff a passenger In an omnlbns, 27 Atl. Bep. 109; DoUard v. Boberts, 130 identified with owner); see Tlie Ber- N. T. 269; 29 N. E. Sep. 104; Abbitt v. nina, 55 Law Jour. Bep., P. D. & A. 21; Lake Erie & W. E. Co. (Ind.), 40 N. E. Oattliu V. Hills, ib. (plaintiff passenger Bep. 40; Poor v. Sears, 154 Mass. 539; 28 on a steamer); Armstrongs. L.&Y. By. N. B. Bep. 1046; White Sewing Mach. Co.,L.E.10Ex.47;44L. J.Ex.89i;pIain- Co. v. Eichter, 2 Ind. App. 331; 28 N. E. tiff, an inspector, traveling in train by Bep. 446 ; EInmouth v. McDougall, 19 N. pass run into by train of another com- T. S. Bep, 771; Shaw v. Craft, 37 Fed. pany); Otis v. JanesTiUe, 47 Wis. 422; Bep. 317 ; Davis o. Guarnieri, 45 Ohio St. — [Georgia Pao. By. Co. v. Underwood, 470; 15 N. E. Bep. 350.] 90 Ala. 49 ; 8 So. Bep. 116 ; Darling v. Fas - Co., 70 Wis. 216; 36 N. W. Kep. 278; Lortz v. New York, etc., E. Co., 31 N. Y. S. Rep. 1033. As by another train. — Chicago & N. W. By. Co. o. Prescott, 69 Fed. Kep. 237; 8 C. C. A. 109; Rumpel v. Oregon, etc., Ry. (Idaho), 35 Pac. Rep. 700; Louisville, N. O. & T. Ey. Co. v. French, 69 Miss. 121 ; 12 So. Eep. 338; Schmidt v. Philadelphia & E. R. Co., 149 Pa. St. 357; 24 Atl. Eep. 218; 30 VT. N. C. 233; Fletcher v. Fitchburg E. Co., 149 Mass. 127; 21 N. E. Eep. 302; Durbin v. Oregon Ey. & Nav. Co., 17 Ore. 6; 17 Pac. Rep. 5; Purdy v. New York, etc., E. Co., 33 N. Y. S. Eep. 962. Or the road is rendered dangerous by reason of Its construction (Illinois, etc., E. Co. v. Stables, 62 III. 313 ; Indianapolis, etc., R. Co. v. Stout, 63 Ind. 143; Mann v. Central, etc., E. Co., 66 Vt. 484), the duty of increased vigilance is imposed upon the company. But it is the duty of the traveler to exercise greater care at an obstructed crossing than ordinarily. — Laverenz v. Chicago, etc., E. Co., 66 la. 689; Johnson ii. Chicago, etc., R. Co., 77 Mo. 546; Strong v. Sac- ramento, etc., B. Co., 61 Cal. 326; Chase v. Maine C. E. Co., 78 Me. 846. Where a person who heard the whistle of an approaching train attempted to drive across the track without knowing from what direction the train was coming, his view In one direction being obstructed, he was held guilty of gross negligence, barring a recovery. — Gri£an o. Chicago, etc., Ey. Co. 68 la. 638; 27 N. W. Eep. 792. CONTRIBUTORY NEGLIGENCE — THOROGOOD V. BRYAN. 507 she encouraged him ia his negligence (y). Also, it should be remembered that the case of Thorogoodu. Bryan, supra, has been disapproved of in Tuff v. Warman, supra, and in The Milan (»). It is also disputed in the note to Ashby V. White (a). But it seems to be settled law according to Waite V. N. E. Ey. Co., post, and Armstrong v. L. & Y. Ry. Co., supra; and to the same effect is the case of Child V. Hearn ( 6 ) , although the court seemed anxious to distinguish the case from Thorogood v. Bryan by saying that the plaintiff was the servant of the railway company, whose fences were out of repair, and whose line he was using as such servant for the company's purposes when the defendant's pigs upset his trolly and injured him. Probably this case can be better supported on the ground that the damages were too remote (c). The case of Kigby V. Hewitt ( d) appears to be in favor of the counter-proposi- tion, but the judgment is unsatisfactory. Two omnibuses were racing, and the point was taken upon the argument that the plaintiff was identified with the owner of the omni- bus, and Thorogood v. Bryan was cited; but the judgment does not deal with that question, but seems to go upon the iy) Flatz V. Oity of Cohoes, 24 Hnn, way company, who had neglected to IGl ; Mann 11. Weiand, 81^ Fa. St. 243 fence, pigs of defendant got on line and (passenger aUowed to ride on wagon), npset plaintiff's trolly) ; Shearman ». An- (s) The Milan, 1 Lush. 3^. dcrsoa 27 Kan, 333; 41 Amer. Bep. 414 (a) Ashby v. White, 1 Sm. L. 0. 6th (steer on line), ed. 266. (c) Addison on Torts, 6th ed., p. 27. (6) Child w. Hearn, L. R. 9 Ex. 476; 43 . note (t). L. J. Ex. 100 (plaintiff serrant of rail- (d) Rigby v. Hewitt, 6 Ex. 240. Negligence of Driver of Vehicle no Bar to Recovery by Passenger for Injuries. — The weight of authority in this country is opposed to the doctrine or Thorogood v. Bryan. In Pennsylvania (Lockhart v. Lichtentbaler, 47 Pa. St. 151 ; Philadel- phia, etc., E. Co, V. Boyer, 97 Pa. St. 91), it has been allowed, and in Iowa and Wisconsin there is a tendency in that direction; for it has been held in those States that the contributory negligence of the driver of a private vehicle is imputable to one riding with him. — Artz v. Chicago, etc., E. Co., Si la, 153; Payne v. Chicago, etc., B. Co., 39 la. 523; Pri- deaux v. Mineral Point, 43 Wis. 513; 28 Am. Rep. 558; Otis v. JanesviUe, 508 CONTRIBDTORT NEGLIGENCE. [407] ground that the defendant's omnibus was the cause of the injury and not the plaintiflfs. 47 Wis. 422; SpofEord -o. City of Oskaloosa, 61 la. 749; Slater v. Burling- ton, etc., Ey. Co., 71 la. 209; 32 N. W. Eep. 264; eontra, Nesbet v. Town of Gardener, 75 la. 314; 39 N. W. Eep. 516. So in Montana it has been held, that the negligence of the driver and owner of a private conveyance may be imputed to one who voluntarily rides with him. — Whittaker v. City of Helena, 14 Mont. 124; 36Fac; Eett. 904. (Iti a charge to the jury in Morris, Adm'r v. Chicago, etc., E. Co. (26 Eep. 22), Shiras, J., said: "If a person who is driving a wagon and team, as such driver has control over the movements of the wagon, fails to exercise proper care, skill or watchfulness and thereby causes, or aids la causing an accident whereby the occupants of the wagon are injured, such negligence on the part of the driver is in law deemed to be the neg- ligence of the occupants and affects or defeats their right of recovery, the same as it does the rights of the driver.") To one injured, after having surrendered himself to the care of the driver, as a blind person (Johnson ». Gulf, etc., Ey. Co., 2 Tex. Civ. App. 139; 21 S. W. Eep. 274), or, who has some knowledge of the road and opportunity of discovering danger (Brickell v. New York, etc., B. Co., 120 N. Y. 290; 24 N. E. Eep. 449; Crescents). Anderson, 114 Pa. St. 643), or, who has a right to control the driver, the rule that the driver's negli- gence may not be imputed to the traveler has no application. — Larkin o. Burlington, etc., Ey. Co., 85 la. 492; 52 N. W. Eep. 480. See Brannen V. Kokomo, etc., E. Co., 115 Ind. 115; 17 N. B. Eep. 202. But it is in general held in this country that the contributory negli- gence of a carrier or of the driver of a public or private vehicle does not bar the passenger of a right of action for injuries. — Little v. Hackett, 116 U. S. 366 ; 6 8. Ct. Eep. 391 ; 33 Alb. Law Jour. 189 ; Otis v. Thorn, 23 Ala. 469 ; Wabash, etc., E. Co. v. Schacklet, 105 111. 364 ; 44 Am. Eep. 791 ; Town of Albion v. Hjetrick, 90 Ind. 545; 46 Am. Eep. 230; Danville, etc., Tp. Co. 0. Stewart, 2 Mete. (Ky.) 119 ; Louisville, etc., E. Co. v. Case's Admr., 9 Bush, 728; Cuddy v. Horn, 46 Mich. 596; 41 Am. Eep. 178; Ben- nett V. New Jersey, etc., Trans. Co., 36 N. J. L. 225; 13 Am. Eep. 435; New York, etc., E. Co. v. Steinberger, 47 N. J. L. 16; Chapman v. New Haven, etc., E. Co., 19 N. Y. 341 ; Sheridan ». Brooklyn City E. Co., 36 N. Y. 39; Barrett v. Third Ave. E, Co., 46 N. Y. 628; Eoblnson ». New York, etc., B. Co., 66 N. Y. 11; 23 Am. Eep. 1 ; Dyer o. Brie Ey. Co., 71 N. Y. 228; Covington Transfer Co, v. Kelly, 36 Ohio St. 86; 38 Am. Eep. 558; Street Eallway Co.9. Badie, 430hio St. 91; Lapsleyv. TJnionFac. B. Co., 60 Fed. Eep. 172, affirmed 61 Fed. Eep. 174; 2 C. C. A. 149; 4 U. S. App. 642; McCaffrey v. President, etc., Del. & H. C. Co., 62 Hun, 618; 16 N. Y. S. Eep. 495; Cahill ». Cincinnati, etc., Ey. Co., 92 Ky. 345; 18 S. W. Eep. 2; East Tenn., V. & G. Ey. Co. o. Markens, 88 Qa. 60; 13 S. CONTBIBUTOKT NEGLIO£NC£ — THOEOQOOD V. BUYAN. 509 [408] It is suggested in the note to Ashby v. White, 1 Sm. L. C. p. 227, 6th ed., that both the wrong-doers are £. Bep. 855; Elyton Land Co. v. Mlngea, 89 Ala. 621; 7 So. Bep. 666; Missouri Pac. Ey. Co. v. Texas Pac. By. Co., 41 Fed. Bep. 316; Metro- politan St. B. Co. V. PoweU, 89 6a. 601; 16 S. E. Bep. 118; Garteiser v. Galveston, etc., By. Co., 2 Tex. Civ. App. 230; 21 S. W. Bep. 631; Board Com'rs Boone Co. v. Matcbler (Indiana), 36 N. E. Bep. 634; Alabama & V. By. Co. V. Davis, 69 Mass. 444; 13 So. Bep. 693; Markham «. Houston D. N. Co., 73 Tex. 247; 11 S. W. Bep. 131; New York, P. & N. B. Co. v. Cooper, 85' Va. 989; 9 S. E. Bep. 321; Galveston, H. &S. A. E. Co. v. Kutac, 72 Tex. 643; 11 S. W. Bep. 127; Seaman v. Koehler, 122 N. Y. Bep. 646; 25N.E.Bep.353. Some of the early New York cases announced a different rule. — Brown o. New York, ete., B. Co., 32 N. Y. 597; Mooneyt?. Hudson Elver B. Co., 5 Bobt. 548; Beck v. East Biver Ferry Co., 6 Bobt. 82. But these have been overruled. — See supra, and Masterson s. New York, etc., B. Co., 84 N. Y. 247. And with the exceptions noted there has been no distinct ruling else- where in favor of the doctrine. ' The rule is applied in a case wher^ a passenger was Injured by a col- lision of one railroad train with another (Chapman v. New Haven B. Co., 19 N. Y. 341; Bunting v. Hogsett, 139 Pa. St. 363; 27 W. N. C. 317; 21 Atl. Bep. 31, overruling Lockhart v. Lichtenthaler, 46 Fa. St. 151, and BailroadCo. v. Boyer, 97 Fa. St. 91) ; of a street railroad car with the car of a transfer company (Transfer Co. o. Kelly, 36 Ohio St. 86; 38 Am. Bep. 558); of a street railroad car with a raUroad train (Bennett v. New Jersey, etc., E. Co., 36 N. J. L. 225; McCallum v. Long Island B. Co., 38 Hun, 569; Georgia Pac. Ey. Co. v. Hughes, 87 Ala. 610; 6 So. Bep. 413; Gulf, C. & S. F. By. Co. v. Pendery (Texas), 29 S. W. Bep. 1038; Little Bock& M. E. Co. V. Harrell, 50 Ark. 464; 25 S. W. Bep. 117; Whelan o. New York, etc., B. Co., 38 Fed. Eep. 16) ; of a hired hack with a railroad train (New York, etc., E. Co. v. Steinberger, 47 N. J. L. 161; Little v. Hackett, 116 U. S. 366; 6 S. Ct. Bep.'Sgi; Eoach v. Western & A. B. Co., 93 Ga. 785; 21 S. E. Eep. 67; Becke v. Missouri Pac. Ey. Co., 102 Mo. 544; 13 S. W. Bep. 1053) ; of a private wagon with a street railroad car (Street By. Co. v. Eadie, 43 Ohio St. 91) ; of a buggy with a railroad train (Philadelphia, W., etc:, B. Co. v. Hogeland, 66 Md. 149) ; of a public conveyance and another vehicle (Holzab v. New Orleans, etc., B. Co., 3S Iia. Ann. 186; 58 Am. Bep. 177) ; of a railroad train with a private wagon.— Dyer v. Erie Ey. Co., 71 N. Y. 228. The reason of the rule is that the passenger has no control over the driver or conductor of the vehicle and cannot be held to be the master or principal, or in any way identified with either of them, and is therefore not responsible for their acts; and if he were the master or principal he would not only be debarred of an action for their negligence but would 510 . CONTRIBUTORY NEGLIGENCE. liable to [409] the innocent plaintiff passenger ; which is only another way of saying that the passenger is not be liable to others for the consequences of such negligence. See State V. Boston & M. R. Co.; 80 Me. 43*0; 15 Atl. Rep. 36; Minster v. Citizens Ry. Co., 53 Mo. App. 276; Town of Knlghtstown v. Musgrove, 18 N. E. Rep. 452; Noyes v. Town of Boscawen, 64 N. H. 361; 10 Atl. Rep. 690; Philadelphia, W. &B. R. Co. v. Hogeland, 66 Md. 149; 7 Atl. Rep. 105. In New Tork, etc., R. Co. -o. Steinberger (47 N. J. L. 161), the plaintiff was injured while riding in a hired hack by a colllson with a railroad train through the negligence of the driver. The court say: " Under the principle which governs in this respect, there is no distinction between a public conveyance in which a passenger takes passage and a coach hired by him from a livery for a particular journey; nor is the situation changed by the fact that the negligence of the driver is invoked simply as contributory negligence to exclude the passenger from his action against a third person for an Injury resulting from the negligence of both parties. As the Chief Justice points out in his opinion in Bennett v. New Jersey, etc., R. Co., the identification of the passenger with the driver for the purpose of fixing on the former responsibility for the latter's act can result only from considering the driver as the servant of the passenger; and the driver can not be con- verted into his servant for the single purpose of preventing the passenger from bringing suit against a third party whose negligence has oo-operated with that of the driver in the production of the injury. Identification must be so complete that the passenger would not only be debarred from a suit against the proprietor of the coach for the driver's negli- gence In the particular instance, but would also be responsible to third persons for injuries sustained by the carelessness of the driver in the course of the journey." A similar conclusion was reached in Little v. Hacket, (116 U. S. S66; 33 Alb. Law Jour. 189, supra) , w here it was held that a person who hires a public hack and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence, or prevented from recovering against a railroad company for injuries suffered from the collision of its train with the hack caused by the negligence of both the managers of the train and the driver. The court say; " The cases cited from the English courts and numer- ous others decided in the courts of this country show that the relation of master and servant does not exist between the passenger and the driver, or between the passenger and the owner. In the absence of this relation, the imputation of their negligence to the passenger, where no fault of omission or commission is chargeable to him, is against all legal rules. If their negligence could be imputed to him it would render him equally THOBOGOOD V. BRYAN. 511 identified with his [410] driver ; for, if he be, he has no remedy against his own driver, for they are just tortfeasors, with them responsible to third parties thereby injured and would also preclude him from maintaining an action against the owner for injuries received by reason of It, but neither of these conclusions can be main- tained, neither has the support of any adjudged cases entitled to consideration. " The truth is the decision In Thorogood v. Bryan, rests upon inde- fensible ground. The identification of the passenger with the negligent driver or the' owner without his personal co-operation or encouragement is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier and the driver or the person managing it is his servant. Neither of them is the servant of the passenger and his asserted identity with them is contradicted by the daily experience of the world." In this case the court say farther: " Those on a hack do not become responsible for the negligence of the driver if they exercise no control over him further than to indicate the route they wish to travel or the places to which they wish to go. If he Is their agent, so that his negligence can be imputed to them to prevent their recovery against a third party, he must be their agent in all other respects, so far as the management of the carriage is concerned, and responsibility to third parties would attach to them for injuries caused by bis negligence in the course of his employment. But as we have already stated, respon- sibility cannot, within any recognized rules of law, be fastened upon one who has in no way interfered with and controlled in the matter causing the injury. From the simple fact of hiring the carriage or riding in it no such liability can arise. The party hiring or riding must in some way have co-operated in producing the injury complained of before he incurs any liability for it. * If the law were otherwise,' as said by Mr. Justice Depue in his elaborate opinion in the latest case in New Jersey, < not only the hirer of the coach, but also all the passengers in it, would be under a constraint to mount the box, and superintend the conduct of the driver in the management and control of bis team, or be put for remedy exclu- sively to an action against the irresponsible driver, or equally irresponsi- ble owner of a coach taken, it may be, from a coach-stand, for the consequences of an injury which was the product of the co-operating wrongful acts of the driver and of a third person, and that, too, though the passengers were Ignorant of the character of the driver, and of the responsibility of the owner of the team, and strangers to the route over which they were to be carried." — 47 N. J. L. 171. "In speaking of the ' identification ' of the passenger in the omnibus with the driver, mentioned in Thorogood v. Bryan, the court, by the chief justice, said: ' Such identification could result only in one way; that is, by consider^ ing such driver the servant of the passenger. I can see no ground 512 CONTEIBDTOEY ^TEOLIOENCE. and he has no remedy [411] against the other driver because his own driver (with whom he is identified) has contributed to the injury. It is submitted that the cases of "identification" have gone too far, and that a mere passive passenger in a public conveyance cannot be answer- able for the acts of the driver. upon which such a relationship is to be founded. In a practical point of view, it certainly does not exist. The passenger has no control over the driver or agent in charge of the vehicle; and it is this right to con- trol the conduct of the agent which is the foundation of the doctrine that the master is to be affected by the acts of his servant. To hold that the conductor of a street car or of a railroad train is the agent of the num- erous passengers who may chance to be in it, would be a pure fiction. In reality there is no such agency; and if we impute it and correctly apply legal principles, the passenger, on the occurrence of an accident from the carelessness of the person in charge of the vehicle in which he is being conveyed, would be without any remedy. It is obvious in a suit against the proprietor of the car in which he was the 'passenger, there could be no recovery if the driver or conductor of such car is to be regarded as the servant of the passenger. And so on the same ground each passenger would be liable to every person injured by the careless- ness of such driver or conductor, because if the negligence of such agent is to be attributed to the passenger for one purpose, It would be entirely arbitrary to say that he is not to be affected by it for other purposes. — 36 N. J. L. 227, 228.' " The Rule does not Apply as between Shipper of Goods and Car- rier. — But this rule does not apply as between the shipper of goods and the carrier; for the latter in such case is held to be the agent of the former, so that the carrier's contributory negligence wUlbar an action by the shipper for the loss of his goods. — Duggins «. Watson, 15 Ark. 118: Broadwell v. Swigert, 7 B. Mon. 39 ; Arctic Fire Ins. Co. v, Austin, 69 N. T. 470; Simpson v. Hand, 6 Whart. 311. Nor does it apply as between master and servant. — Lake Shore, etc., E. Co. v: Miller, 25 Mich. 274. Nor as between husband and wife, the contributory negligence of the husband driving a vehicle being imputable to the wife so as to bar an action by her for Injuries so received. — Carlisle v. Sheldon, 38 Vt.440; Feck V. New York, etc., R. Co., SO Conn. 379; Gahn v. Ottnmwa, 60 la. 429. Contra, Flort v. St. Louis, 3 Mo. App. 231; Morris v. Chicago, etc., B. Co., 26 Fed. Bep. 22; Lake Shore & M. S. By. Co. v. Mcintosh (Indiana), 38 N. E. Bep. 476; Chicago, St. L.& P. B. Co. v. Spilker, 134 Ind. 380; 33 N. B. Rep. 280; Sheffield v. Central Union Tel. Co., 36 Fed. Rep. 164. See Toledo, St. L. & E. R. Co. v. Crittenden, 42 111. App. 469. CONTRIBDTORT NEGLIGENCE — CHILDREN. 513 The doctrine of contributory negligence is applied to children, and to those having the control of them (e). In one case Channel!, B., at nisi prius is reported to have said : «« The doctrine of contributory negligence does not apply to an infant of tender age" { f). This rule is scarcely satisfactory, because it is difficult to say wh^t is or is not a tender age ; but a better rule which would probably excuse the negligence of a child of tender age is that a child is only bound to exercise such a degree of care as children of his particular age may be presumed capable of exercising (^). (e) Singleton v. East. Connt. By. Go., 7 O. B. N. S. 287 ; WaWe v. N. B. By. Co., £. B. & E. 719. In America this appears to be limited (In the case of persons having the control of Infants) to their negligence In placing the Infant in a position of danger, but not to their neg- ligence in respect of their own partlcalar acts. Shearman, p. 69, para. 48. Callahan V. Sharp, 27 Hun, N. T. 85; Canley v. Pittsburgh By. Co., 95 Pa. St. 398; iO Amer. Bep. 664 ; St. Loais By. Co. ». Free - man, 36 Ark. 41. In America It seems even that in a suit by a child, contribu- tory negligence, either of the child or its parent, can not be set np as a defense; but in an action by the parent for causing the death of the child, the negligence of the parent can be pleaded, Fenns. By- Co. V. James, 81^ Fa. St. 194; [see infra\. In the following Scotch cases the plain- tiffs were held disentitled to sue for in- jury done to their children on the ground that it was contributory negligence in them to let their children go out alone. Davidson v, Monkland By. Co., 27 Jar. 541 ; Lnmsden v. Bussell, 28 Jnr. ISl ; Bal- fear v. Balrd, 30 Jur. 124; and see an American case, Atchison By. Oo. u. Fllnn, 24 Ean. 627. (/) Gardner v. Grace, 1 F. & F. 369 (child three and a-half years old run over by defendant), action brought in name of child ; [Fink v. Missouri Furnace Co., 10 Mo. App. 61 (child four years old inca- pable of negligence) ; Gavin v. Chicago Olty, 97 111. 66 ; 37 Amer. Eep. 99 ; Chicago By. Co. V. Schumllowsky, 6 Ul. App. 613. [See Wiley v. Long Island B. Co., 76 Hun, 29; 27 N. T. S. Eep. 772; Bottoms v. Seaboard & B. B. Co., 114 N. C. 699; 19 S. B. Bep. 730; Schnnr v. Citizens' Traction Co., 163 Pa. St. 29; 25 Atl. Bep. 660; Hamilton v. Morgan's L., etc., Co., 42 La. An. 824; 8 So. Bep. 586; Chicago City By. Co. V. Wilcox (IlllnolB), 24 N. E.Bep. 419, reversing 33 111. App. 460; City of Vicksburg v. McLain, 67 Miss. 4 ; 6 Sa.Bep- 774, following Westbrook v. Ballroad Co., 66 Miss. 660; 6 So. Bep. 321; Barnes v. Shreveport City E. Co. (La.), 17 So. Eep. 782; Central Trust Co. v. Wabash, etc., By. Co., 31 Fed. Eep. 246.] (.g) Glover v. Gray, 9 111. App. 329; VIckers v. Atlanta By. Co., 64 Ga. 306; Chicago Co. v. Smith, 46 Mich. 604; 40 Amer. Bep. 669, note (boy eight years old on engine) ; Byrne v. N. Y. Central By,, 83 N. T. 620) ; Donoho v. Vulcan Iron Works, 7 Mo. App. 447.— [See Collins ». South Boston B. Co., 142 Mass. 301; 57 Am. Bep. 675; City of Fekln v. McMahon, 154 111. 141; 39 N. £. Bep. 484; Stone v. Dry Dock, etc., B. Co., 46 Hun, 184; Bldenhour v. Kansas City Cable By. Co., lOS Mo. 270; 13 S. W. Bep. 889; 14 S. W. Bep. 760; Hayes «. Norcross, 162 Mass. 646; 39 N. E. Bep. 282; Bosenberg v. Durfree, 87 Gal. 546; 26 Pac. Bep. 793; Beckham v. Hlllier, 47 N. J. L. 12 ; Powers V. Chicago, etc., By. Go. (Minn.), 69 N. W. Bep. 307; Messenger v. Dennie, 141 Mass. 335; Martin v. Cahill, 39 Hun, 446; Philadelphia, B. & B. Go. v. Layer, 112 Pa. St. 414 ; Lehman v, Louisiana W. B, Co., 37 La. Ann. 706.] 33 514 CONTRIBUTORY NEGLIGENCE. In an American case where the child was six years old, and shook a gate which had been negligently hung, and which fell upon him, and the jury found that considering the age and circumstances there was no negligence in the [412] child, the verdict was upheld (A). This is in truth nothing more than an illustration of the ordinary rule that (A) Birge v. Gaidiuer, 19 Conn. 607. ChUdren. — The rule of Imputed negligence obtains in:— California. — Schlerhold o. North, etc., E. Co., 40 Cal. 447; Meeks o. Southern,, etc., R. Co., 52 Cal. 602; 56 Cal. 513; 38 Am. Rep. 67. JritZiaRa.— Eransville, etc., R. Co. v. Wolf, 59 lud. 89; Jeffersonville, etc., B. Co. V. Bowen, 40 Ind. 545. Kansas. — Atchison, etc., B. Co. v. Smith, 28 Kan. S41. Kentudky. — Schlenka v. Central Pass. By. Co. (Ky.), 23 S. W. Bep. 589. Maine, — Leslie v. City o'f Lewiston, 62 Me. 468; Brown v. Enropean, etc., R. Co., 58 Me. 384. Maryland. — McMahon ». Northern, etc., B. Co., 39 Md. 439; Balti- more, etCi, R. Co. v. McDonnell, 43 Md. 551; Massachusetts. — Lynch v. Smith, 104 Mass. 62; Gibbons «. Williams 135 Mass. 333; Grant v. City of Fitchburg, 160 Mass. 16; 35N. E. Rep. 84; Marsland v. Murray, 148 Mass. 91; 18 N. E. Bep. 680; Bliss o.Town of South Hadley, 145 Mass. 91; 13 N. E. Bep. 352. Minnesota. — Fitzgerald «. St. Paul, etc., B. Co., 29 Minn. 336; 43 Am. Bep. 212^ Weissner v. St. Paul City By. Co., 47 Minn. 468; 50 N. W. Bep. 606. "" New Tork.— Ihl v. 42nd St. B. Co., 47 N. T. 328; Cosgrove v. Ogden, 49 N. T. 255; Weil v. Dry Dock, etc., E. Co., 119 N. T. 147; 23 N. E. Rep. 487; Chrystal v. Troy & B. B. Co., 105 N. Y. 164; 11 N. E. Bep. 380. The rule is denied in : — / Alabama. — Government St. B. Co. e. Hanlon, 63 Ala. 70. An infant under six is held not 6f snfScient discretion to be guilty of contributory negligence. — Bay Shore B. Co. v. Harris, 67 Ala. 6. Arkansas. — St. Lonis, I. M. %i 8. By. Co. v. Bexroad, 69 Ark. 180; 26 S. W. Rep. 1037. Connecticut. — Bronsono. Southbuiy, 37 Conn. 199; Birge v. Gardiner, 19 Conn. 607. Georgia. — Ferguson v. Columbus & B. By. Co., 77 Ga. 102; Atlanta & C. Air Line Ry. Co. v. Gravitt, 93 Ga. 869; 20 S. E. Rep. 660. IlUnois.-^ While the doctrine formerly obtained in this State (Gavin V. City of Chicago, 97 111. 66; 37 Am. Bep. 89; Toledo, etc., B.Co. v. Grable, 88 111. 441) the courts now seem to uniformly deny it, — Chicago City Ry. Co. v. WUcox, 24 N. E. Bep. 419; 31 111. App., 460; 138 111. 370; CONTEIBUTOBY NEGLIQENCE — CHILDREN. 515 what is [4:13] negligence in any particular person de- pends apon all the circumstances of the case (i). (i) See in Lynch v. Nnrdin, 1 Q. B. 29 v. Macfle, 2 H. & G. 741, seems, however, at p. 36 and at pp. 3S, 39, and ha,y v. Mid- scarcely to recognize sach an excnse, see land Sy. Co.; 34 L. T. X. S. 30 (child seven Coleman v. S. tS. By., 4 H. & 0. 699 (boy years of age sliding along the railings of twelve years of agel. of a bridge slipped through) ; Hughes 27 N. E. Eep. 899; City of Mnrphysboro o. Woolsey, 47 111. App. 447; Chicago City By. Co. v. Bobinson, 27 111. App. 26; 127 111. 1; 18 N. E. Kep. 772. 7o«7o.— Wymore v. Mahaska County, 78 la. 396; 43 N. W. Eep. 264. But see Fayne v. Humeston & S. B. Co., 70 la. 584; 31 N. W. Bep. 886. Louisiana. — Westerfleld v. Levis, 43 La. Ann. 63; 9 So. Bep. 62. Michigan Shippy v. Village of Au Sable, 85 Mich. 280; 48 N. W> Bep. 584. Mississippi. — Mackey v. City of Vicksburg, 64 Miss. 777 ; 2 So. Eep. 178; Westbrooko. Mobile & O. B. Co., 66 Miss. 560; 6 So. Bep. 821. Missouri. — Frick v. St. Louis, etc., E. Co., 75 Mo. 542, 595; 'Winters V. Kansas City Cable By. Co., 99 Mo. 509; 12 S. W. Bep. 662. Nebraska. — Hu& v. Ames, 16 Neb. 139. New Hampshire. — BisaUlon v. Blood, 64 N. H. 565; 15 Atl. Bep. 147. New Jersey. — Newman v. Fhlllipsburgh St. C. B. Co., 52 N. J. L. 446; 19 Atl. Eep. 1102. North Carolina. — Bottoms v. Seaboard & B. B. Co., 114 N. C. 699 ; 19 S. E. Bep. 730. OAio.— Belief ontaine, etc., B. Co. v. Snyder, 18 Ohio St. 399; Cleve- land, etc., B. Co. V. Manson, 30 Ohio St. 451 ; Street By. Co. v. Eadie, 43 Ohio St. 91; St. Clair St. By. Co. v. Eadie. 43 Ohio St. 91; 54 Am. Bep. 144, note. Pennsylvania. — Pennsylvania B. Co. o, Mahoney, 57 Pa. St. 187; Philadelphia, etc., B. Co. v. Long, 75 Pa. St. 257; Erie City Pass. By. Co. V. Schuster, 113 Fa. St. 412; 57 Am. Bep. 471. But see Lederman v. Pennsylvania B. Co., 165 Pa. St. 118; 30 Atl. Bep. 726. Tennessee. — Whirley«. Whiteman, 1 Head, 610. Texas.— Bailroad Co. v. Herbeck, 60 Tex. 612; G., H. & H. By. Co. V. Moore, 59 Tex. 64; Texas & Pac. By. Co. v. Fletcher, 6 Tex. Civ. App. 736; 26 S. W. Bep. 446; Houston City St. By. Co. v. Bichart (Tex. Civ. App.), 27 S. W. Bep. 918; San Antonio St. By. Co. v. Caillonette, 79 Tex. 341; 15 S. W. Bep. 390. iTitoA. — BUey v. Salt Lake E. T. Co., 10 Utah, 428; 37 Pac. Bep. 681. Vermont. — Bobinson v. Cone, 22 Vt. 213. Virginia. — Norfolk, etc., B. Co. v. Ormsby, 27 Gratt. 455; Norfolk & W. B. Co.«- Groseclose, 88 Va. 267; 13 S. E. Eep. 464. The leading case establishing the doctrine of imputed negligence in 616 CONTiOBXJTOET NEOLiaENCE. [414] In Lynch v. Nurdin (Jc), the defendant had been guilty of negligence in leaving a cart unattended ; but in W See amte, p. 31. this country, is Hartfleld v. Boper (21 Wend. 616)', where a child about two years of age was run over by a sleigh while sitting unattended in the highway, before it was perceived by the driver. The court said : "The custody of such child Is confided by law to its parents or to others standing in their place, and it is absurd to imagine that it could be ex- posed in the road as this child was without gross carelessness. * * • "It is perfectly well settled that if a party injured by a collision on the highway has drawn the mischief upon himself by his own neglect, he is not entitled to an action, even though he be lawfully In the highway pur- suing his travels, which can scarcely be said of a toppling infant suffered by his guardians to be there, either as a traveler or for the purpose of pursuing his sports. The applicatioii may be harsh when made to small ctiildren. As they are known to have no personal discretion, common humanity is alive to their protection; but they are not therefore exempt ' from the legal rule when they bring an action for redress; and there is no other way of enforcing it, except by requiring due care at the hands of those to whom the law and the necessity of the case have delegated the exercise of discretion. An infant is not sui juris. He belongs to another to whom discretion in the care of his person is exclusively con- fided. That person is keeper and agent for this purpose, and in respect to third persons, his act must be deemed that of the infant, his neglect, the infant's neglect. *, * * If his proper agent and guardian has suffered him to incur miscliief, it is much more fit that he should look for redress to that guardian, than that the latter should negligently allow his ward to be in the way of travelers, and then harass them in courts of justice, recovering heavy verdicts for his own misconduct." The leading case denying this doctrine is Bobinson «. Cone (22 Vt. 213). In tliat case a boy three years and nine months old was run over by a sleigh while sliding down a hUl in the highway lying upon bis breast on a sled. Bedfleld, J., said : " And we are satisfied that although a child or idiot or lunatic may to some extent have escaped into the highway through the fault or negligence of his keeper, and so be improperly there, yet if he is hurt by the negligence of the defendant, he is not precluded from his redress. If one know that such a person is in the highway or on a railway, he is bound to a proportionate degree of watchfulness, and what would, be but ordinary neglect in regard to one whom the defendant supposed a person of full age and capagden, 49 N. Y. 255, and compare Yanderbeck v. Hendry, 34 N. J. L. 467. See, also, Hnssey V. Byan, 64 Md. 426; 54 Am. Bep. 772. But in McGuiness v. Butler (159 Mass. 233; 34 N. £. Bep. 259), it was held, that a child who interferes w;ith marble slabs standing on private property cannot recover for injuries received, though the defendant may have been negligent in leav- ing the slabs where he did, and the conduct of the child was such as might have been expected of him. — See Brinkley Car Works & MIg. Co. V. Cooper, 60 Ark. 646; 31 S. W. Bep. 154; Schmidt v. Kansas City D. Co., 90 Mo. 281; Chicago, K. & W. B. Co. v. Bockoven, 63 Kan. 279; Union Pac. By. Co. o. McDonald, 152 U. S. 262; 14 S. Ct. Bep. 619. And where some dynamite was left exposed in a shed near the land of the plaintiff's father, and the plaintifi took a package, struck it with a stone and shattered his hand, the defendant was held liable. — Powers, v. Harlow, 63 Mich. 507. When children trespass upon railroad property it is held that the com- pany owes them a greater degree of care than adults; and they are only required to exercise such care and judgment as may reasonably be ex- pected from those of their age. — Fitzpatrick ». Fitchburg R. Co., 128 Mass. 13; Byrne v. New York, etc., E. Co., 83 N. Y. G20; Rockford, etc., 520 CONTRIBDTOKT NEGLIGEMCB. leaving the machine uq- [418] guarded, which would bring the case within Lynch v. Nurdin. E.Co. V. Delaney, 82 111. 198; Meibus ».' Dodge, 38 Wis. 300; Johnson v. Chicago, etc., R. Co., 66 Wis. 274; Philadelphia, etc., R. Co. ». Spearen, 47 Pa. St. 300; Pennsylvania R. Co. v. Lewis, 79 Pa. St. 33; Barley v. Chicago, etc., R. Co., 4 Biss. 430; Isabel v. Hannibal, etc., R. Co., 60 Mo. 475; Gun v. Ohio River R. Co., 37 W. Va. 421; 16 S. E. Rep. 628, following 36 VT. Va. 165; 14 S. B. Rep. 465; San Antonio St. Ey. Co. v. Mechler (Texas), 30 S. W. Rep. 899; Barnes ». Shreveport City R. Co. (La.), 17 So. Rep. 782; Thomas v. Chicago, etc., Ky. Co. (Iowa), 61 N. W. Rep. 967; Payne v. Chicago & A. R. Co. (Mo.), 30 S. W. Rep. 148; Galveston City R. Co. v. Hewitt, 67 Tex. 473; 3 S. W. Rep. 705; McCarthy v. Cass Avenue & P. G. Ry. Co., 92 Mo. 536; 4 S. W. Rep. 616; Hays V. Gainesville St. Ry. Co., 70 Tex. 602; 8 S. W. Rep. 491; McGuire V. Chicago, etc., Ry. Co., 37 Fed. Rep. 54; Levy ». Dry Dock, etc., R. Co., 68 Hun, 610; 12 N. T. S. Rep. 486; Kentucky Hotel Co. v. Camp (Ky.), 30 S. W. Rep. 1010; Springfield Consolidated Ry. Co. v. Welsh, 165 111. 511; 40 N. E. Rep. 1034; Pierce v. Conners, 37 Pac. Rep. 721; Indian- apolis, P., etc., Ry. Co. v. Pitzer, 109 Ind. 179; 68 Am. Rep. 387; Keyser V. Chicago,' etc., Ry. Co., 66 Mich. 659; Douahoe v. Wabash, etc., Ry. Co., 83 Mo. 643; Biidger v. Ashville, etc., R. Co., 27 S. C. 466; 8 S. E. Rep. 860; Kansas Pac. Ry. Co. v. Whipple, 39 Kan. 631; 18 Pac. Rep, 730; Western & A. R. Co. «. Young, 81 Ga. 39i7 ; 7 S. K. Rep. 912; 83 6a. 612; 10 S. E. Rep. 197; Swift o. Staten Island E. T. R. Co., 123 N. T. 645; 25 N. E. Rep. 378; Spillane d. Missouri Pac. Ry. Co., Ill Mo. 55S; 20 S. W. Rep. 293; Citizens\St. R. Co. v. Stoddard, 10 Ind. App. 287; 37 N. £. Rep. 723; Schmitz o. St. Louis, etc., Ry. Co., 119 Mo. 266; 24 S. W. Rep. 472; Chicago, B. & Q. B. Co. v. Grablin, 38 Neb. 90; 66 N. W. Rep. 796; Omaha & E. V. Ry. Co. ». Morgan (40 Neb. 604), 69 N. W. Rep. 81; Giraldo v. Coney Island & B. R. Co., 62 Hun, 620; 16 N. Y. S. Rep. 774; StrutzeU ». St. Paul City Ry. Co., 47 Minn. 543; 60 N. W. Rep. 690; Barre ». Reading City Pass. Ry. Co., 166 Fa. St. 170; 26 Atl. Rep. 99; Wynn v. City & S. Ry. Co., 91 Ga. 344 ; 17 S. E. Rep. 649 ; Taylor v. South Covington & C. St. Ry. Co. (Ky.), 20 S. W. Eep. 276. They can not, however, make a playground of railroad property. — Baltimore, etc., E. Co. v. Schwindling, 101 Pa. St. 268; Morrissey v. Eastern E. Co., 126 Mass. 377; Atchison, etc., B. Co. v. Smith, 28 Kan. 641; Chicago, etc., B. Co., 46 Mich. 504; St. Louis, etc., B. Co. o. Bell, 81 111. 76; Masser o. Chicago, etc., E. Co., 68 la. 602; 27 N. W. Eep. 776; Mitchell 0. Tacoma Ey. & M. Co., 9 Wash. St. 120; 37 Pac. Eep. 341. Flaying in the Stredt. — Whether playing in the street or highway is contributory negligence on the part of children, so as to bar an action for injuries, is disputed. Some courts hold that it is not (Philadelphia, etc., R. Co. 1). Long, 75 Pa. St. 267; Pittsburgh, etc., R. Co. v. Pearson, 72 Fa. St. 169; McGuire v. Spence, 91 N. Y. 803; McGary v. Loomis, 63 N. Y. 104; Varney v. Maochester, 68 N. H. 430; Keefe v. Chicago, 114 111. 222; CONTEIBUTORT NEGLIGENCE CHILDREN. 521 As to contributory negligence under the Employers' Lia- bility Act, see ante, 225-251. .18 C. L. N. 26; 21 O. L. J. 263; Tobin v. Missouri Pac. Ey. Co. (Mo.), 18 S. W. Eep. 996; MitcheU v. Tacoma Ey." & M. Co., 9 Wash. St. 120; 37 Pac. Eep. 341; Birkett ». Knickerbocker Ice Co., 41 Hun, 404; 110 N. Y. 504; 18 N. E. Rep. 108, and others that it is. — Stinson v. City of Gar- diner, 48 Me. 248; Tighe v. Lowell, 119 Mass. 472; North Hudson County Ey. Co. V. Flanagan (N. J. L.), 32 Atl. Eep. 216. In Keefe v. City of Chicago, supra, it was held that a child playing upon a sidewalk (rolling his hoop) and^injured by reason of its defective condition, Is not, thereby, guilty of contributory negligence. The court say: — " A sidewalk is for the passage of persons only, and we have not had in contemplation any case of it otherwise. Whether it be passed over for business or for pleasure, or merely to gratify idle curiosity, we think the use Is lawful. A child may lawfully be upon the sidewalk for pleasure only, that is to say, for play, and the city owes the same duty to have the sidewalk in a reasonably safe state of repair in respect of it that it does In respect of those who are on the sidewalk passing to or returning from their places of business or abode. It may be true that the child will be less careful in its mode of using the sidewalk while playing than the busi- ness man will be while traveling to or from his place of business or abode ; but this belongs to the domain of fact, and not to that of law. It may be so in most cases, it is not inevitably so In all cases. It is for the jury, not the court, to say what, in a given case, was the conduct of the parties. Our attention is called to an expression used in City of Chicago V. Starr (42 HI. 177), where it is said; ' For it is to be borne in mind that It is not the duty of the city of Chicago to make its streets a safe play- ground for children. That is not the purpose for which streets are de- signed.' This expression does not occur in the statement of a legal prin- ciple, nor in the argument of a legal proposition, but it occurs in an argument upon a question of fact purely, namely, whether, in that case, the intestate was guilty of that degree of contributive negligence which precluded a recovery. At that time this court reviewed on questions of fact as well as of law, and often these questions were so intermingled in the discussion that it required some effort and care to distinguish be - twe«n them. It was, in th6 case referred to, assumed as a matter of fact that children, in playing, will be more careless than persons who are sim- ply passing along. And the only legal proposition is one that is implied in the argument; and that is that the measure of duty of the city in re- gard to its streets, is limited by the necessity of the ordinary modes of traveling or passing along the streets. If they were not kept up to this requirement, and children in playing did not subject them to greater bur- dens, or essentially different uses, certainly it was not contemplated that the fact of the children being at play should bar a recovery for Injaries resulting from the condition of the streets." [419] CHAPTER VI. PRESUMPTIONS OF CARE OR NEGLIGENCE. Hes ipsa Loquitur. There is a presumption in favor of all persons that they will exercise care in the performance of their duties. It is presumed in favor of the defendant ; and, therefore, the plaintiff is in all cases bound to give evidence of negligence. It is also presumed in favor of the plaintiff, and if the de- fendant wishes to rebut that presumption he must give evidence of the plaintiff's negligence, and, in order to de- feat the plaintiff's right of action, he must go further and show that the plaintiff's negligence was " contributory neg- ligence " in law, see ante. Chapter V. Persons have a right to proceed to the performance of their duties upon the presumption that others will exercise ordinary care in the performance of theirs, and unless they have some reasonable ground for supposing that others are not going to exercise care, or are engaged in something requiring additional precaution, they are not guilty of neg- ligence in omitting to provide against such unforeseen danger (a). It has already been stated, that in actions of negligence (as indeed in all actions) the plaintiff must give some proof of his case beyond a mere scintilla of evidence, and if he does not, it is the duly of the judge to direct a non- suit (6). The question of what is sufficient evidence to go to the jury is one for the judge in the particular case before him ; but there are a class of cases in which there (a) Daniel v. rMet. B7. Co., I>. B. 5 (6) AiOe, p. 24, note (e). Sng. & Ix. App. 15. (522) KES IPSA LOQUITUR. 623 has been no direct evidence of any particular act of negli- gence, beyond the mere fact that something unusual has [420] happened, which has caused the injury ; and upon the maxim, or rather phrase, "res ipsa loquitur" it has been held that there is evidence of negligence. As the phrase imports, there must be something in the facts which speaks for itself, and therefore each case will depend upon its own facts, and it will be difficult to lay down any guiding ^inciples. It may, perhaps, be safely stated that wJiere a certain course of action has been pursued by any person without injury to others, and he, upon changing that course, injures another, the thing (unexplained) speaks for itself that such person has been negligent (c) ; or if something unusual happens with respect to the d^endant's property, or something over which he has the control which injures the plaintiff, and the natural inference on the evidence is that the unusual occurrence is owing to the defendant's act, the occurrence being unusual is said (in the absence of explanation) to speak for itself (d) that such act was negligent. (c) Kearney v. L. B. & S. C. By., L. Saltonstall, 13 Peters, 181 (stage coach B. 6Q. B. 759;40Ii. J. Q. B.286;Byme V. upset); and also Christie v. Griggs, 2 Boadle, 2 H. & C. 723; 33 L. J. Ex. 13; Camp. 79, per Lord Maii£field,se<2j7t(Ere, Scott V. London Dock Co., 34 L. J. Ex. if a carriage accident is not nnnsnal, 17; 3 H. & O. 69; per Pigott, B. (bags ol why should a stage coach accident be sugar falling from crane) ; M'Mahon v. so ; and see Templeman r. Haydon, 12 Davidson, 12 Minn. 357 (bursting of a O. B. 507; Welsh v. Lawrence, 2 Chit, boiler on a steamer) 262 ; Doyle v. Wragg, 1 F. & P. 7. A col- (d) BriggB V. Oliver, 35 L. J. Ex. 163 lision between two trains under the con- (pacUng case propped against wall) ; trol of the same company. Skinner v. L. Czech V. General Steam Xavigation Co., B. & S. C. By. Co., 5 Exch, 787; Carpue L. B. 3 C. P. 17 (oil on vessel getting into v. L. & B. By. Co., 5 Q. B. 751 ; Iron By . cargo) ; Moffat v. Bateman, L. B. 3 P. O. Co. v. Howery, [36 Ohio St. aS\ ; 38 Amer. 115 (bolt pin of carriage giving way, Bep. 697; running off the line, Dawson plaintiff invited Into defendant's car- v. M. S. & L. By. Co., 5 L. T. 682; Bird v. riage). It was observed in this case that 6. N. By. Co., 28 L. J. Ex. 3; Flannery v. there is notliing nnnsaai in carriage ac- W. & L. By. Cto., 11 Ir. B. 0. L. 30 ; Pilts- cidentper te as there is in the falling of burgh By. Co. v. Williams, 71 Ind. 462; bags of sugar as in Scott v. London George v. St. Louis By. Co., 34 Ark. 613; Docks, supra; Simpson v. L. G. Omnibus are prima facie evidence of negligence ; Co., L. B. 8 C. P. 390; 42 L. J. O. P. 112 Philadelphia By. Co. v. Anderson, H (omnibus horse kicking, unusual occur- Fa. St. 351 ; 39 Amer. Bep. 387 (washing rence) ; MuUen v. St. John, 67 IT. T. 567 away of an embankment), Dongherty v. (fall of building Ibto street); Stokes v. Missouri By. Co.',9 Mo. App.478 (railvfsy 524 PKESUMFTION OF CARB OK NEGLiaENCK. [421] Where upon the other hand, something nnusnal occurs which injures the plaintiff, but such unusual occur- rence is not even inferentially the result of any unusual act of the defendant, and the defendant has, so far as he is concerned, been pursuing his usual course, which has heretofore been done in safety, then the unusual occurrence is what is called an accident, or is perhaps the fault of the plainti:^ himself (e). Care should be taken here to dis- tinguish those cases where an accident happens through the neglect of the defendant, although things are allowed to go on in their usual course in one sense, that is to say, they are left to get out of order by neglect ; but this is in truth a distinct act of negligence in omitting to examine and repair, and the accident is caused by an unusual circumstance in- duced by the act of the defendant. Such a case is that of Webb V. Rennie, 4 F. & F. 608, and probably some of the cases in the note, supra, as to carriage accidents are ex- plainable on this ground. It is clear that the cause of the accident must be con- nected with the defendant either by direct evidence that it is his act, or that it is under his control, before it can be presumed that he has been negligent (y). It also seems carriage starting with a jerk). See also. Exciieqaer, and Bee judgment of Fol- tlie cases ante, Cb. III., a. S, Carrlere. lock, B., in Oonrt below, 31 'L. T. N. S. So tbe giving away of any part of the 544. line Is prima fade evidence, and con- (/) Hlggs v. Haynaid, 12 Jnr. N. S. elusive nnless rebutted, 6. W. Sy. Co. of 70S (ladder In defendant's workshop Canada V. Fawcett, 1 Moo. P. O. K. 8. brokeawlndow; held thatplaintiS must 101. show that ladder was under defendant's (e) See the Bailway Cases, ante, s. 8, control), and see Welfare v. L. B. So & Carriers; and see Abbott e. Freeman, C. By., L. B. 4 Q. B. 693, where Court 35 L. I. X. S. 783, xerersing judgment of would not presume that a man on a roof (e) Accidents.— SteSen v. Chicago & N. W. By. Co., 16 Wis. 259; 60 K. W. Bep. 348; Millie v. Manhattan By. Co., 26 N. Y. S. Bep. 753; 6 Misc. Bep. 301; Brymer v. Southern Fac. Co., 90 Cal. 496; 27 Pac. Bep. 871; Grant*. Union Pac. By. Co., 45 Fed. Bep. 673; Chicago, B. I. 4 P. By. Co. V. Becker, 38 ni. App. 623; Cosolich v. Standard Oil Co., 122 N. Y. 118; 26 N. B. Bep. 269; Wabash, St. L. &P. By. Co. v. Locke, 112 Ind. 404; 14 N. B. Bep. 391; AlUson Mfg. Co. v. McCormick, 118 Pa. St. 619; 12 Atl. Bep. 273; Boblnson v. Simpson, 8 Houst. 398; 32 Atl. Bep. 287. KES IPSA LOQUITUR. 525 clear that the phrase cannot apply to cases where it is open to doubt whether the plaintiff has not neglected sometiuty devolving upon him (^g). Where there is no duty upon the plaintiff, or where the duty which he has to perform has [422] been performed by him, it is clear that the negli- gence of the plaintiff is out of the question ; and, if the accident is connected with the defendant, the question whether the phrase res ''ipsa loquitur" applies or not, becomes asimple question of common sense. A very good illustration upon this point is put by Willes, J., in giving judgment (/*) in the case of Czech v. The General Steam Navigation Co. : •* If a shipment of sugar took place under a bill of lading, such as the present one, and it was proved that the sugar was sound when put on board, and had become converted into syrup before the end of the voyage, if that was put as an abstract case I think the ship-owner would not be liable, because there may have been storms which occasioned the injury, without any t?aut of care on the part of the captain or crew ; the injury alone, therefore, would be no evidence of negligence on their part. But if it was proved that the sugar was damaged by fresh water, then there would be a strong probability that the hatches had been negligently left open, and the rain had so come in and done the injury, and, though it would be possible that some one had willfully poured fresh water down into the hold, this would be so improbable, that a jury would be justified in finding that the injury had been occasioned by negligence in the management of the ship (z). was in tbe employ of tbe owner. See of Cotton v. Wood, 29 L. J. O. P. 333, Ibis c&ee.post, p. 429. Smltb v. G. E. By. wbere tbere were reciprocal duties npon Co., L. B. 2 C. P. 10 (dog not nnder tbe tbe foot passengers to look ont for control of tbe defendants got npon tbe vehicles and for drivers to look ont for platform and bit tbe plaintiff) ; Wright foot passengers. See Hammack v. V. Midland By. Co., L. B. 8 Ex. 137 : 42 L. White, 11 C. B. N. S. S88; 31 L. J. C. P. J. Ex. 89 (driver of North Eastern tram 129. negligently disregarding Midland sig- (A) Czech v. General Steam Naviga- nals). tlon Co., L. E. 3 0. P. 18; 37 L. J. C. P. 3. (g) This wonld appear from the case (i) See also per Cockbnrn, C. J., in 526 PRESUMPTION OF CAKE OR NEGLIGENCE. The mere fact of a man driving on the wrong side of the road'isyit seems, no evidence of negligence in his having run over a foot passenger {k), but probably driving on the wrong side is prima facie evidence in case of collision with another vehicle ; and the reason is, thai in the latter case the other vehicle is on the right side, which seems to [423] negative any negligence on the part of the driver, whereas in the case of the foot passenger there is nothing to show whether he was negligent or not {I). Of course when the circumstances are explained the rule does not apply; so that where the injury arises from cir- cumstances over which the defendant has no control, and he has exercised a proper amount of care but to no effect, he is not liable in an action of negligence (?ra). The mere fact of an accident is not^ however, evidence of negligence (re). . «' Where a person desires to have the roof of a building repaired he employs some one not only to repair the roof Kearney v. L, B. & S. C. By., tupra, footpath sbown to have done his best to where he suggested it is possible bat not keep oS) ; Latch v. Enmner By. Co., 27 probable tliat the brick might have fallen L.J. Ex. 155 (trainoSline; act of stran- ont of the railway arch through change ger) ; Wakeman v. Bobinson, 1 Bing. 213 of temperature.— [See, The Samuel E. (defendant's horse In gig frightened by Spring, 29 Fed. Bep. 397.] - butcher's cart) ; Gibbons v. Pepper, 1 (*) iloyd V. Ogleby, 5 C. B. N. S. 667. Ld. Eaym. 38 (horse frightened by The case scarcely seems to decide this thunder) ; North v. Smith, 10 C. B . IT. S. satisfactorily. See also Ohaplln v. 675; contra (tf spur be used); Manzonl Hawse, 3 0. &. P. 554. v. Douglas, 6 Q. B. D. 146 (horse and (2) We have. seen, amte, that a man brougham on footway bolted without driving on the wrong side is bound cause, man did his best). to use more than ordinary care. [Xen^ (n) Hammack v. White, 11 O. B. N. S. nard v. Burton, 25 Me. 39; Brooks v. 676; Bird v. Gt. Northern By., 28 L. J.Ex. Hart, 14 N. H. 307; Earing v. Lansingh, 7 3; Welfare v. Brighton By. Co., L. B. 4 Wend. 185.] Q. B. 998 (roll of zinc fell through a (m) Hammack v. White, 11 0. B. N. S. roof) ; Smith v. G. £. By. Co., amte. S88; 31 L. J. C. P. 129 (man on horse on Bes Ipsa Loquitur. — A distinction is drawn as to presumptions of negligence between cases resting in contract and those not resting in contract, — See Article, Bes Ipsa Loquitur, by Judge Seymour D. Thomp- Ron, 10 C. L. J, 261; 2 Thomp. on Neg. 1220, and Wbart. on Neg., §§ 121 and 422. In tbose resting in contract, the mere happening of the accident will EES IPSA LOQUITUR. 427 but to see to its condition; and if he employs a competent person, the business of that person upon proceeding to be prima fade evidence of a breach of contract without further proof ; while in those not resting in contract, "it must not only appear that the accident happened, but the surrounding circumstances must be such as to raise the presumption that it happened in consequence of a failure of duty on the part of defendant towards the plalntifi." — Article, Ses Ipsa Loquitur, 10 C. L. J. 261. "All courts agree that, where contractual relation exists between the parties, as in cases of common carriers, proof of the accident carries with it the presumption of negligence, and makes a prima facie case. This proposition is elementary and uncontradicted. — Judsou v. Giant Powder Co. (Cal.), 40 Pac. Eep. 1020; 41 C. L. J. 244. See Carter v. Kansas City Cable By. Co., 42 fed. Bep. 37; Dampman v. Pennsylvania B. Co., 166 Pa. St. 520; 31 Atl. Bep., p. 244. Thus, when an accident happens to.a passenger on a railroad by rea- son of the defective condition of appliances, there is a prima facie evi- dence from which the jury may infernegligence. — ^Baltimore, etc., B. Co. V. Noell's Admrj, 82 Gratt. 394; Sawyer v. Hannibal, etc., B. Co., 37 Mo. 240; Curtis v. Bochester, etc., B. Co., 18 N. Y. 434; Delaware, etc., B. Co. V. Napheys, 90 Pa. St. 136; Cleveland, C. etc., B. Co. v. Newell, 104 Ind. 264; East Tenn., V. & G. B. v. Maloy, 77 Ga. 237; 2 S. E. Bep. 941. As where a passenger is injured by the breaking down of a coach. — Toledo, etc., E. Co. ». Baggs, 85111. 80. By a car being thrown from the track. — Pittsburgh, etc., B. Co. v. Williams, 74 Ind. 462; Cleveland, etc., E. Co. v. Newell, 104 Ind. 264; 3 N. E. Eep. 836; Hipsley v. Kansas City, etc., E. Co., 88 Mo. 348; Central B. Co. v.. Sanders, 73 Ga. 613. By the falling of a lamp-shade from the ceiling of a passenger car. — White V. Boston & A. B. Co., 114 Mass. 404. By a collision of trains. — New Orleans, etc., B. Co. v. Allbritton, 38 Miss. 242. See Wilkerson «. Corrigan C. St. By. Co., 26 Mo. App. 144. By the upsetting of a stage coach. — Wall v. Livezay, 6 Colo. 466; Boyce v. California Stage Co., 25 Cal. 460; McKlnney e. Neil, 1 McLean, 540; Stokes t). Saltonstall, 13 Pet. 181; Payne v. Halstead, 44 III. App. 97; Sanderson v. Frazier, 8 Colo. 79; 54 Am. Bep. 644. The explosion of a boiler. — The Eeliance, 4 Woods, 420; Bobinson *. New York Cent. B. Co., 20 Blatchf. 338; The Sidney, 28 Fed. Bep. 119. The overturning of a stage sleigh. — Eyan v. Gilmer, 3 Mont. 517. And where a telegraph company undertakes to transmit a message for the sender, and either fails to do so, or transmits It Incorrectly, proof of the contract and its noU'^erformance are all that is required to charge the company with liability. — Bartlett v. Western Union Tel. Co., 62 Me. 609; Tyler ». Western Union Tel. Co., 60 111. 440. The rule is applied in those States where statutes have been enacted 528 PRESUMPTION OF CABB OR NEGLIGENCE. [424] repair the roof is to look at its condition, and to see how far it will support him or bis workmen in doing making the fact of killing or injaring cattle prima faete evidence of negli- gence. — See Atchison, etc., R. Co. ». Walton (New Mexico), 21 Bep. 627; McCoy v. Cal. F. B. Co., 10 Cal. 634; Danner v. South Carolina By. Co., i Bich. 329; Missoari Pac. By. Co. v. Scott, 4 Tex. Civ. App. 76; 23 S. W. Bep. 239. In some other States the fact of killing or injnry does not constitute any presumption of negligence. — Id.; Lyndsay v. Conn., etc., B. Co., 27 Vt. 643; Chicago, etc., B. Co. v. Patchin, 16 111. 198; Great Western B. Co. V. Morthland, 80 lb. 461; Schneir v. C, B. I. and F. B. Co., 40 la. 337; Indianapolis, etc., B. Co. v. Means, 14 Ind. 30; New Orleans B. Co. V. Enochs, 42 Miss. 603; Mobile, etc., B. Co. «. Hudson, 60 lb. 672; Browne. Hannibal, etc., By. Co., 33 Mo. 309; Scott 9. Wilmington B. Co., 6 Jones L. 432; Walsh v. Virginia, etc.,B. Co.,8Nev. Ill; Flattes V. Chicago, etc., B. Co., 36 la. 191 ; Kentucky, etc., B. Co. v. Talbot, 78 Ky. 621; Whittier v. O. M. and St. F. B. Co., 26 Minn. 484; Little Bock, etc., B. Co. v. Henson, 39 Ark. 413 ; Little Bock, etc., B. Co. v. Holland, 40 lb. 336. This rule was held not to apply in a case where a raUroad train had come to a stop, and a passenger, on stepping from the lowest step of the platform of the car to the ground, fractured her knee without any appar- ent external cause. — Delaware, etc., B. Co. v. Napheys, 90 Fa. St. 136. The court said : " The cars were at rest on the track ; there was no jar or breaking of the machinery. Mrs. Napheys, with the assistance of her husband, was descending the steps from the platform of the car. They had every opportunity of seeing and knowing where she was going and Controlling her movements. If the lower step was inconveniently or dangerously high for her in the condition she was, she and her husband bad as good an opportunity as any one else of knowing the fact. If they had even a suspicion that it was in the least degree unsafe for her to take the last step, there was no urgent necessity for her to do so. The train reached its destination, and there was no occasion for baste in leaving the car. If they had any apprehension of danger, or even Inconvenience in descending from the lower step, there was nothing to prompt them to incur the risk." But in another case where the evidence was that the plaintiff was a passenger on one of defendant's stages, and as she got out the horses started and she was thrown down and injured thereby, It was held that the facts showed prima facie, eithei/that the horses were unsuitable for the business or that the driver was incompetent. — Boberts v. Johnson, 58 N. Y. 613. , And where a passenger on a steamboat was Injured by the fall of a bale of goods by the act of appellant's servant, it was held that there was prima facie evidence of negligence, and that the appellee must EE8 IPSA LOQUITUR. 529 the neces- [425] sary work." (o). And therefore, in the absence of any evidence to show that the defendants (o) Per Cockbnm, O. J. rebut that presnmption. — Memphis & Ohio River Packet Co. «. McCooI, 83 Ind. 392; 43 Am. Rep. 71, and note 73, citing among other authorities Shearman and Redfleld on Negligence, § 280, and dissenting opinion of Wade, C. J., in Eyan v. Gilmer, 3 Mont. 517, as expressing a contrary view. Contrary to this general mie, in the case of Yamell v. Kansas City, etc., R. Co. (113 Mo. 670, 21 S. W. Rep. 3), the court said: "It has been suggested that it will be presumed that Yamell was in the exercise of ' due care.' Tills may be granted ; but while indulging this presumption, it must not be forgotten that every one is prfesumed to properly acquit himself of his engagements and bis duty (Lenox v, Harrison, 88 Mo. 491, and cases cited), and that carriers of passengers are by no means outside this favorable presumption. So that the result is that one pre- sumption rebuts and neutralizes the other, like the conjunction of an acid and an alkali." See Scheepers v. Union Depot R. Co. (Mo.), 29 S. W. Rep. 712; Spears v. Chicago, B. & Q. R. Co. (Nebraska), 62 N. W. Rep. 68. ^ As examples of the latter class of cases, those not resting in contract, may be mentioned the following: Defendant company was engaged in unloading iron ore from a vessel by means of a crane to which was attached a bucket. While so engaged the bucket tipped and threw Its contents upon a seaman lawfully work- ing npon the deck of the vessel, — Cnmmlngs v. The. National Furnace Co., 60 Wis. 603. The court said; "The accident itself was of such a character as to raise a presumption of negligence either in the character of the ma- chinery used or in the care with which it was handled ; and as the jury found the fault wafi not in the machinery, it follows that it must have been in the handling, otherwise there is no rational cause shown for its happening. * * * The rule that an accident may be of such a nature as to raise a presnmption of negligence is fully sustained by the follow- ing authorities cited by the learned counsel for the respondent in their brief: Mullen v. St. John, 67 N. T. 667; Lyons v. Rosenthal, 11 Hun, 46; Kearney v. L. E. B. & S. C. R. Co., L. R. 5 Q. B. 411, and L. E. 6 Q. B. 759; Scott v. L. & St. K. Dock's Co., 3 Hurl. & C. 596; Byrne v. Boadle, 2 Hurl. & C. 722; Briggs v. Olson, 4 Hurl. & C. 403; Bdger- ton V. N. T., etc., E. Co., 39 N. Y. 227; Kirst v. M. L. S. & W. R. Co., 46 Wis. 489. In Scott d. L. & St. E. Dock's, supra, the court lays down the following rule: , Cnmberland & P. B. Co., 80 Md. 146; 30 Atl. Bep. 906; 27 L. R. An. 164; 40 C. I.. J. 161. The explosion of dynamite raises a presumption of negligence (Jnd- son V. Giant Powder Co. (Cal.), 40 Fac. Bep. 1020; 41 C. L.J. 244. So does the falling of an iron bar from an elevated railroad (Hogan v. Manhattan By. Co., 26 N. Y. S. Bep. 792; 6 Misc. Bep. 296) ; or the falling of Ice or snow from a roof of nnnsnal construction, near the street (^Shephard v. Creamer, 160 Mass. 496 ; 36 N. E. Bep. 475) ; or the falling of a cistern wall in course of construction (Mulcaimes v. Janesville, -67 Wis. 24) ; or the explosion of a boiler. — John Morris Co. v. Burgess, 44 HI. App, 27. Supporting the general doctrine, see Peer v. Byan, 64 Mich. 224; Schnltze. Moon, 33 Mo. App. 329; Nowell v. New York, 52 N. Y. Super. Ct. 382; Moore v. Parker, 91 N. C. 275; Bevis v. Baltimore & O. B. Co., 26 Mo. App. 19; Brooks v. Kings Co. El. B. Co., 23 N. Y. S. Bep. 1031; 4 Misc. Bep. 288; Jacksonville, T. & B. W. By. Co. v. Peninsular L. T. & M. Co., 27 Fla. 1, 157; 9 So. Bep. 661; Vicksburg & M. B. Co. v. Phillips, 64 Miss. 693; Wiedmer v. New York EI. B. Co., 41 Hnn, 284; Barnowsky V. Helson, 88 Mich. 523; 15 L. B. A. 33; 50 N. W. Bep. 989; Fleming v. Pittsburg, etc., B. Co., 158 Pa. St. 130; 22 L. E. A. 361. Where the defendants were hoisting a heavy box to the upper floors of a building part of which they occupied, ai)d just as the box reached the second floor, the hooks by which it was held broke and it fell upon and injured the plaintifi who was lawfully in the basement. This was held evidence sn£3cient to justify a verdict. — Lyons v. Bosenthal, 11 Hun, 46. In another case not quite so clear (Eaples v. Orth, 61 Wis. 631), where the plaintifi was Injured whUe sitting upon a stairway leading to a basement by a block of ice which fell from the shoulder of defendant's servant who was carrying it down to the basement, the question of the negligence of the defendant iii carrying the ice was held properly sub- mitted to the jury, who might from the facts infer negligence. Plaintiff was a dealer in fruits and bad a stand on the comer of a building in the basement of which was a flsh market. On the day of the injury it was very hot and plaintiff being oppressed with the heat, seated herself in the shade upon the upper step of stairs leading to the basement, and while in this position the injury occurred. 532 FRKSUMFTION OF CABE OB NEGLIGEXCB. The thing did not speak for itself, first, because [428} there probably was some doubt as to whether it was the The Court said: "The mere fact that the plaintiff on a hot day left her place of business and sat down upon the stairs near by In the shade to rest does not authorize us to say as matter of law that she was ^ilty of contributory negligence (Murray v. HcShanb, 52 Md. 217; 36 Am. B^. 369) ; especially upon her testimony which the jury found to be true to the effect that she did not know of the presence of the servant of the defendants until just at the time of the injury. * -* * " There being no contract relation between the plaintiff and the defendants it was incumbent upon her to give evidence tending to prove negligence on the part of the defendants or their servants. * * * "It is to be remembered that the servant of the defendants was an active agency and had full control and management of the ice in question. This being so and the accident being such as would not in the ordinary course of things have happened if the servant had been in the exercise of proper care, and in the absence of any evidence tending to show that a piece of the ice broke off while the cake was being carried with ordinary care, we must hold that the jury was authorized to infer from the fact» and circumstances disclosed negligence on the part of the servant of the defendants. — Scott v. London, etc., Docks Co., 3 Hurl. & C. 596; Kear- ney V. L. E. & S. C. E. Co., L. K. 6 Q. B. 411; L. B. 6 Q. B. 759; 2Thomp, on Neg. 1220; Mullen v. St. John, 67 N. Y. 567; Transp. Co. v. Downer, 11 Wall. 129; Murray ». McShane, 52 Md. 217; Eosec. Stephens, etc., Transp. Co., 11 Fed. Eep, 438 ; ISEep. 421; Cnmmings o. Nat. S'urnace Co., 60 Wis. 603. " In such case it is hardly accurate to say that negligence is presumed from the mere fact of the injury, but rather that it may be inferred from the facts and circumstances disclosed in the absence of evidence showing that it occurred without the fault of the defendant. In such case the facts and circumstances speak for themselves and in the absence of such explanation or disproof give rise to the inference of negligence. Such a case comes within the principle res ipsa loquitur, — Briggsi;. Oliver, 4 Hurl. & C. 407; Carpue v. London, etc., E. Co., 5 Q. B. 761; Cockbnrn, C. J., and Kelly, C. B., in Kearney v. L. E. & S. C. E. Co., supra. "Such a jury may draw any legitimate inference from the unquali- fied and unrestricted facts and circumstances disclosed in the evidence. It follows that they would not be authorized to come to the same con- clusion if such inference had been wholly removed by evidence. The case before us is certainly on the border line and close to the line at that. " We should be equally tender and respectful of the verdict had it been the other way." In an action against a gas company for injuries received by the plaintiff by the inhalation of gas which escaped from the defendant's pipes, it RES IPSA LOQUITUR. 533 defendant's (or his servant's) act at all; and next, because £429] it could not be shown that the defendant was neg- appeared that the plaintiff, who was too young to testify, occupied the same room and bed with his mother; that the door of the room in which iliey slept was broken open in the morning, and the plaintiff was found insensible by the dead body of his mother, whose death was caused by the escaping gas ; that the escaping gas came from a crack in the pipe laid by the defendant through the street on which the plaintiff lived; that there were no gas fixtures in the room; and there was no evidence that the plaintiff or his mother had notice of escaping gas. There was also evidence that on the day before the accident, there was no smell of gas in the street, and that the mother was a sober and prudent woman. It was held that there was evidence sufficient to support a verdict for the plain- tiff, and that a ruling, " that there was evidence enough of want of proper care on the part of the defendant to make it responsible, on the ground that it was bound to conduct its gas in a proper manner and that the fact that the gas escaped was prima facie evidence of some neglect on -the part of the defendant was not open to exception." — Smith v. Boston Gas-Light Co., 129 Mass. 318. And where water escaped from defendant's hydrant into plaintiff's apartment on the floor below, this was held prima facie evidence of neg- ligence. — Warren v. Kaufman, 2 Phila. 259. (p) In Welfare v. The L. B. & 8. C. Ey. Co., supra, Blackburn, J., said : — " Mr. Wood [counsel] argues that where there is a duty cast upon a person, and that duty is neglected, h^ is responsible, whether he has em- ployed a contractor to do it for him or not, and he refers to Fickard v. Smith, 10 C. B. (N. S.) 470. In this case no duty is cast on the railway company to insure that no plank shall fall. Their duty is to take reason- able care to keep their premises in such a state that those whom they in- vite to come there shall not be unduly exposed to danger. No doubt, 1;he case might occur where knowing the state of the premises, the com- pany could not send a man on the roof to repair it without necessa- rily incurring great danger of the roof falling down, and if the premises are out of repair to this extent, it would be a breach of duty to send a man upon the roof during the hours when persons would be frequenting the premises. But then in order to make out such a case something more must be shown than the mere fact that the accident occurred. In this case there was a total absence of evidence to show that the premises were really dangerous so as to make the company responsible. There is no evidence that the company were aware that the state of the roof was such as to make It dangerous to send a man on it with zinc and all that was shown was that the accident happened, and no proof was given that the company knew they were exposing the persons coming on their premises to undue danger; consequently I am of opinion that a non-suit -was right." 534 PBESUMFTION OF CABK OB NEGLIOENOE. ligent unless knowledge of the insecurity of the premises was shown. The court also said that they could not presume that the man on the roof was in the employ of the owner, as he might be in the employ of a contractor (q). {q) In America It baa been held tbat Clare v. National City Bank, 1 Sweeny, the falling of a piece of wood Irom a 639. And so also that drivers of car- bnilding during repairs is prima facie riages are in the service of the owners, evidence of negligence In the owner; Norrts v. Kohlei. 11 N. T. 12. [430] CHAPTER VII. ACTIONS FOR INJURIES CAUSING DEATH. At cqmmon law a civil action would not lie for an injury causing death (a), but a remedy has in certain cases been provided by a statute passed in 1846, and commonly called Lord Campbell's Act (b), which, after reciting that — whereas no action at law is now maintainable against a per- son who by his wrongful act, neglect, or default may have caused the death of another person, and it is oftentimes right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him, — by section 1 enacts that " whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the per- son injured, and although the death shall have been caused under such circumstances as would amount in law to felony." By section 2, " every action shall be for the benefit of the wife, husband, parent and child (c) of the person whose death shall have been so caused, and shall be brought (a) Baker ti. Boalton, 1 Camp. 493. — the statute ; DickenBon v,. N. E. By. Co., [City of Enieka v. Meirifleld, 63 Ean. 2 H. & 0. 73S; 33 L. J. £x. 91. [In Ohio 794; 37 Pac. Bep. 118; Moe v. Smiley, 125 an Illegitimate child Is next of kin of Its Fa. St. 136; 23 W. N. O. 461; Holland v, mother and therefore within the mean- Lynn & B. B. Go., 144 Mass. 425.] Ing of the statutes. Mnhl's Admr. v. (i) 9 & 10 Vict. c. 93. Michigan Sonthern, B. LOo., 10 Ohio St' (c) An illegitimate child is not within 272.] (535) 536 ACTIONS FOE INJnEIES CAUSING DEATH. by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respec- [431] tively for whom and for whose benefit such action shall be brought ; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct "(d). By section 3, " Provided always that not more than one action shall lie for and in respect of the same subject- matter of complaint ; and that every such action shall be commenced within twelve calendar months after the death of such deceased person." By section 4, "In every such action the plaintiff on the record shall be required, together with the declaration, to deliver to the defendant or his attorney a full particular of the person or persons for whom and on whose behalf such action shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered." By section 5, " The following words and expressions are intended to have the meanings hereby assigned to them respectively, so far as such meanings are not excluded by the context or by the nature of the subject-matter ; that is to say, words denoting the singular number are to be understood to apply also to a plurality of persons or things ; and words denoting the masculine gender are to be under- stood to apply also to persons of the feminine gender ; and the word ' person ' shall apply to bodies politic and cor- porate ; and the word ' parent ' shall include father and mother, and grandfather and grandmother, and stepfather and stepmother ; and the word ' child ' shall include son and daughter, and grandson and granddaughter, and step- son and stepdaughter." (d) Bee 27 & 28 Vict. c. 95, ss. 1, 2 ; and also 31 & 32 V let. o. 119, s. 25. LORD Campbell's act. 537 By section 6 the Act is not to apply to Scotland. The doctrine of contributory negligence applies (e) to Actions under Lord Campbell's Act. (e) Senior©. Ward, 1 Bl. & El. 385; 28 354; Tucker v. CbapUn, 2 0. & K. 730; Xi. J. Q. B. 139; Wlgmore v. Jay, S Exch. leeepost, p. 640]. Statutes. — In most of the States in this coantry statutes have been passed similar to Lord Campbell's Act. — Infra, 443, Johnson v. Cleve- land, 7 Ohio St. 336; Kansas Pac. R. Co. v. Miller, 2 Cal. 442; Tilley v. Hodson River E. Co., 24 N. Y. 471; 2 Thomp. on Neg. 1294^1309; 31 C. L. J. 183; Connors v. Burlington, etc., Ry. Co., 71 la. 490; 32 N. W. Bep. 465. Alabama. — Code 1886, § 2589, is constitntional (Richmond & D. R. Co. V. Freeman, 97 Ala. 289; 11 So. Rep. 800); and the action may be maintained by the personal representatives of the deceased (Columbus & W. Ry. Co. V. Bradford, 86 Ala. 574; 6 So. Rep. 90; Thompson v. LouisviUe & N. R. Co., 91 Ala. 496; 8 So. Rep. 406; Louisville & N. E. Co. V. Trammell, 93 Ala. 360; 9 So. Rep. 870), butnot the heirs.— Stew- art V. LouisvUle & N. R. Co., 83 Ala. 493; 4 So. Rep. 373. Arkansas. — The administrator may maintain two actions — one under the act of 1883, for the benefit of the next of kin, and the other Tinder the act of 1838, for the benefit of the estate. — Davis v. St. Louis, «tc., Ry. Co., 53 Ark. 117; 13 S. W. Rep. 801. California. — Either (but not both), the heirs or personal representa- tives, may sue. — Hartigan v. Southern Pac. R. Co., 86 Cal. 142 ; 24 Fac. Rep. 851. Colorado. — for the death of the husband the wife may sue, or if she does not the heirs may (Hayes v. Williams, 17 Colo. 466; 30 Fac. Rep. 262) ; and for the death of a minor, or unmarried person, either or both of the parents may maintain an action. — Pierce v. Connors, 20 Colo. 178; 37 Fac. Rep. 721; Denver, S. P. & P.R. Co.o. WUson, 12 Colo. 20; 20 Pac. Rep. 340. Georgia. — The widow, or if no widow then the child or children (Scott V. Central R. Co., 77 Ga. 450; Snell v. Smith, 78 6a. 365), or a temporary administrator, may maintain the action. — Louisville & N. R. Co. o. Chaffin, 84 Ga. 519; 11 S. £. Rep. 891. Indiana. — The father, or, in case of his desertion or imprisonment, the mother, may sue for the death of a minor child (Ft. Wayne, C. & L. By. Co. V. Byerle, 110 Ind. 100; 11 N. E. Rep. 6; Louisville, E. & St. L. E. Co. V. Lohges, 6 Ind. App. 228; 33 N. E. Rep. 449; Louisville, N. A. & C. By. Co. o. Goodykoontz, 119 Ind. Ill ; 21 N. E. Rep. 472) ; but the lather cannot sue for the death of the mother's bastard. — Thornburg v. American Strawboard Co. (Ind.), 40 N. E. Bep. 1062. The action, in general, may be maintained by the personal representatives of the 538 ACTION FOR INJURIES CAUSING DEATH. [432] A mother having a legal claim for support from her son, who is actually supporting her at the time, may deceased, — Indianapolis, etc., R. Co. v. Stout, 63 Ind. 143; Clore v. Mclntire, 120 Ind. 262; 22 N. B. Eep. 128; Berry v. Louisville, etc, R- Co., 128 Ind. 484; 28 N. E. Rep. 182. Kansas. — The right of action is in the hnsband or wife of the deceased for six months after the time of the death, and then absolutely in the minor children, if any. — Hamilton v. Hannibal & St. Joe R. Co., 39 Ean. 56; ISPac. Rep. 57. , Kentucky. — The personal representative of the deceased may success- fully sue for the wrongful death of his intestate. — Bruce v. Cincinnati R- Co., 83 Ky. 174; Edmondson v. Kentucky Cent. Ry. Co. (Ky.), 28 S. W. Rep. 789; Cincinnati, N. 6. & T. P. Ry. Co. v. Adams (Ky.), 13 S. W. Rep. 428; Givens w. Kentucky Cent. R. Co., 89 Ky. 231; 12 S. W. Rep. 257; Morris v. Louisville & N. R. Co. (Ky.), 12 S. W. Rep. 940; Baker e. Louisville & N. R. Co. (Ky.), 17 S. W. Rep. 191. But not where intes- tate leaves neither widow nor children. — Kentucky Cent. R. Co. v. Wainwright (Ky.), 13 S. W. Rep. 488. Gen. St. Ky., Ch. ,57, § 3, provides, that "the widow, heir, or personal representative " of a person whose life is lost by the willful neglect of another, may recover punitive damages. — Louisville & N. R. Co. v. Cop- page (Ky.), 13 S. "W. Rep. 1086; Reinder v. Bliek & PhiUips Coal Co. (Ky.), 13 S. "W. Rep. 719; Louisville & N. R. Co. v. Conitt (Ky.), 27 S. TV. Rep. 865; Henderson v. Kentucky C. R. Co., 86 Ky. 369; 5 S, W. Bfep. 876; Carrithers v. Cox (Ky.), 14 S. W. Rep. 609; Cincinnati, N. O. & T. R. Ry. Co. V. Prewitt (Ky.), 17 S. W. Rep. 484; Jordan v. Cincinnati, N. O. & T. P. Ry. Co., 89 Ky. 40; 11 S. W. Rep. 1013; Henning ». Louisville Leather Co. (Ky.), 12 S. W. Rep. 660; Louisville Safety- Vault & Trust Co. V. Louisville & N. R. Co. (Ky.), 17 S. W. Rep. 567. But no recovery can be had by the personal representative where the deceased left neither widow nor child. — Koening v. Covington (Ky.), 12 S. W. Rep. 128; Louisville & N. R. Co. v. Merriwether (Ky.), 12 S. W. Rep. 936. Nor can a father recover as heir of his son. — Kentucky Cent. R. Co. v. Mc- Ganty (Ky.), 14 S. W. Rep. 601; Hackett v. Louisville, etc., Ry. Co. (Ky.), 24 S. W. Rep. 871. Louisiana.— For the wrongful death of the husband and father the mother individually, and as tutrix of her minor son, may sue.— Curley v. Illinois Cent. R. Co., 40 La. Ann. 810; 6 So. Rep. 103. Maryland. — For the wrongful death of his parents a minor may sue in the name of the State tor his use.— Albert v. State, 66 Md. 325; 7 Atl. Rep. 697. Massachusetts. — An employer is liable for his negligence resulting in the death of an employe and the widow or next of kin of the latter, dependent upon him for support, may maintain the action. — Dacey v. Old Colony R. Co., 153 Mass. 112; 26 N. B. Rep. 437; Dalyw. New Jersey CONTRIBUTOEY NEGLIGENCE. 539 bring an action under the statute for the loss of such sup- port, and, it seems, even if the claim for support were a mere moral claim (/). (/) Weems v. Mathleson, 4 Uacq. H. Ii. Cas. 215; [Beepoit, p. 541]. S. & I. Co., 155 Mass. 1; 29 N. E. Rep. 507. The legal representative can only recover damages suffered by the employe to the time of bis death.— Bamsdell v. New York & N. E. B. Co., 161 Mass. 245; 23 K. E. Rep. 1103. Michigan. — How. St. Mich., §§ 8313, 8314, applies to all corporations. — Van Brunt v. Cincinnati, etc., R. Co., 78 Mich. 630; 44 N. W. Bep. 321. Mississippi. — The executor or administrator of the deceased may sue his negligent corporate employer. — Blinois Cent. B. Co. v. Hunter, 70 Miss. 471; 12 So. Bep. 482; Amos v. Mobile &,0. R. Co., 63 Miss. 609. See Yicksburg & M. R. Co. v. Phillips, 64 Miss. 693. In general, the widow may recover. — Natchez Cotton Mills Co. v. Mullins, 67 Miss. 672; 7 So. Rep. 642. Missouri. — If the deceased be a minor or unmarried, the father and mother, or if one be dead, the survivor may maintain the sait.— Tobin v. Missouri Fac. By. Co. (Mo.j, 18 S. W. Rep. 996. One who aids tbe wrongful act is liable with the principal. — Gray v. McDonald, 28 Mo. App. 477. New Bampshire. — The executor or administrator of the deceased may recover for bis death. — Clark v. City of Manchester, 62 N. H. 677; Jewett V. Keene, Id. 701. See Davis v. Town of Eumney (N. H.), 29 Atl. Bep. 542. New York. — The executor or administrator or ancillary executor of the decedent may sue. — Lang v. Houston, etc., B. Co., 75 Hun, 161; 27 N. Y. S. Bep. 90. See Lee v. Van Voorhis, 78 Hun, 676; 29 N. Y. S. Bep. 571; Lustig v. New York, etc., E. Co., 65 Hun, 647; 20 N. Y. S. Bep. 477. Ohio. — The widow of the deceased is the " next of kin," under Bev. St., § 6135.— Lima Electric L. & F. Co. v. Deubler, 7 Ohio Cir. Ct. B. 185. Pennsylvania. — A deserted married woman may sue for the death of a minor child of herself and husband. — Kerr v. Fennsylvania B. Co. (Fa.), 32 Atl. Bep. 96. The widow and not the parents of the deceased may recover. — Lehigh Iron Co. v. Bupp, 100 Fa. St. 95. Neither the admin- istrator (Books V. Danville, 95 Pa. St. 168), nor the next of kin come within the act.— Pennsylvania B. Co. v. Keller, 67 Fa. St. 300. Rhode Island. — The action may be brought by the widow or if there be none then by tbe executor or administrator, but not by the father, as next of kin.— Goodwin v, Nickerson, 17 B. I. 478; 23 Atl. Bep. 12. South Dakota. — Damages to the estate only of the deceased, are recoverable.— Belding v. Black Hills & Ft. F. R. Co., 3 S. D. 369; 53 N. W. Bep. 760. 540 ACTION FOB INJURIES CAUSING DEATH. In an action brought for the benefit of the father of the deceased, who was nearly blind and injured in his limbs, Tennessee. — If the widow waives her right to sne, the personal repre- sentatiTe or children in the latter's name, may bring the action. — Webb V. Bast Tenn. V. & G. K. Co., 88 Tenn, 119; 12 S. W. Kep. 428. See Loague v. Memphis & C. E. Co., 91 Tenn. 468; 19 S. W. Eep. 430. Texas. — All or any one of the parties entitled to damages, may bring an action for the benefit of all. — Texas & N. O. E. Co. v. Berry, 67 Tex. 238; 6 S. W. Eep. 817; East Line & E. E. C. Co. v. Culberson, 68 Tex. 664; 5 S. W. Eep. 820; International & G. N. By. Co. v. Kuehn, 70 Tex. 682; 8 S. W. Eep. 484; Missouri Pac. By. Co. v. Henry, 76 Tex, 220; 12 S. W. Eep. 828; Texas & P. By. Co. v. Hall, 83 Tex. 676; 19 S. W. Eep. 121; Galveston, H. & S. A. E. Co. v. Kutac, 71 Tex. 643; 11 S. W. Eep. 127; Texas & P. By. Co. v. Eobertson, 82 Tex. 657; 17 S. W. Eep. 1041. See Winnt v. International & G. N. B. Co., 74 Tex. 32; 11 S. W. Bep. 907. Private corporations (Fleming v. Texas Loan Agency, 87 Tex. 238; 27 S. W. Eep. 126^, but not municipal corporations, (Bltz v. City of Austin, 1 Tex. Civ. App..456; 20 S. W. Bep. 1029, 1031), or railroad receivers, individually, are liable. — Texas & P. By. Co. v. Bledsoe, 2 Tex. Civ. App. 88; 20 S- W. Bep. 1135. Vermont. — The executor or administrator and ' not the next of kin, should bring the suit.— Needham v. Grand Trunk B. Co., 38 Vt. 294. Washington. — Decedent's heirs or personal representatives may sue lor his wrongful death. — Graetz v. McEenzie, 3 Wash. St. 194; 28 Fac. Eep. 331 ; Northern Pac. B. Co. ». Ellison, 3 Wash. St. 225 ; 28 Pac. Eep. 333. Wisconsin. — The personal representative, and not the next of kin, should sue.— Whlton v. Chicago, etc., E. Co., 21 Wis. 306. See Schmidt -B. Deegan, 69 Wis. 800; 34 N. W. Bep. 83. Contributory Negligence. — The doctrine of contributory negligence applies to actions under our statutes. — Gary v. Winter, 34 Cal. 163 ; At- lanta, etc., B. Co. V. Ayies, 63 Ga. 12. (The negligence of the deceased may be shown in mitigation of damages in this State. — Id. As in Ten- nessee, Nashville, etc., B. Co. ». Smith, 6 Heisk. 174 ; Louisville & N. B. Co. V. Howard, 80 Tenn. 144; 19 S. W. Bep. 116} ; State v. Manchester, etc., B. Co., 62 N. H. 628; Nickerson v. Harriman, 38 Me. 277; Bancroft V, Boston, etc., B. Co., 97 Mass. 276 ; Dennick v. Eailroad Co., 108 TJ, S. 112 ; Teller v. Northern, etc., B. Co., 30 N. J. L. 188; Schmidt ». Chicago, etc.? B. Co., 83 111. 406. (The doctrine'of comparative negligence prevails in this State. Id.) Cumberland, etc., B. Co. v. Pagenbaker, 37 Md. 156; Sherman v. Western Stage Co., 24 la. 616; Sauter v. New Tork, etc., B. Co., 66 N. T. 60; Elliott v. St. Louis, etc., E. Co., 67 Mo. 272; Bradbury ■V. Furlong, 13 E. 1. 15; Knight v. Ponchartrain B. Co., 23 La. Ann. 462; King V. Henkle, 80 Ala. 606; The A. W. Thompson, 39 Fed. Bep. 116; San Antonio & A. P. By. Co. v. Bennett, 76 Tex. 161; 13 S. W. Bep. 319. But see Gray v. McDonald, 104 Mo. 303; 16 S. W. Bep. 398; Louisville COHTEIBDTOBT NEGLIGENCE. 541 and who could not work so well as he used, it was proved that the son used to contribute to his support, and that five or six years previously the son had contributed money out & N. B. Co. B. Brice, 84 Ky. 298; 1 S. W. Kep. 483; Derby v. Kentucky Cent. B. Co. (Ky.), 4 S. W. Bep. 303. And as the statutes generally provide, that U the deceased could not have maintained an action, none can be maintained by his personal representatives, the negligence of a fellow-servant which will bar an action by a person injured against a common employer, will prevent a recovery by his representatives in case of his death by the same cause. — McDonald v. Eagle, etc., Mnfg. Co., 68 Ga. 839; 67 6a. 761; Toledo, etc., B. Co. V. Moore, 77 111. 217; Higgins v. Hannibal, etc., B. Co., 36 Mo. 418; Slattery's Admr. o. Toledo, etc., B. Co., 23 Ind. 81 ; Packet Co. t;. MoCue, 17 Wall. 508; Toledo, etc., E. Co. v. Conrby, 68 111. 560; Kan- sas, etc., B. Co. V. Salmon, 11 Kan. 83; Elliott v. St. Louis, etc., B. Co., 67 Mo. 272; Madison, etc., B. Co. v. Bacon, 66 Ind. 205; Kumler v. Junction B. Co., 33 Ohio St. 150; State v. Maine Central B. Co., 60 Me. 490; Clark v. New York, etc., E. Co., 160 Mass. 39; 35 N. E. Bep. 104. (/) Action lor Loss of Support. — This is the case (Pennsylvania E. Co. V. Adams, 55 Fa. St. 499 ; Pennsylvania B. Co. v. Keller, 67 Pa. St. 300; County Com. Hartford Co. v. Hamilton, 60 Md. 340), though he is of age. — Houston, etc., B. Co. v. Cowser, 57 Tex. 293. So in Massa- chusetts (Daly V. New Jersey, S. & I. Co., 155 Mass. 1; 29 N. E. Bep. 507), an invalid sister was held to be entitled to recover for the loss of her brother's support. See Schnatz v. Philadelphia & B. B. Co., 160 Fa. St. 602; 28 AU. Bep. 952; 34 W. N. C. 290. Her pecuniary condition may properly be alleged to show the reason- able expectation of pecuniary assistance from deceased, but not for the purpose of increasing the amount of damages. — The International, etc., E. Co. V. Kindred, 67 Tex. 491. In Chicago, etc., B. Co. v. Moranda, 98 HI. 302, it was held error to admit proof that an administratrix and her child had no other means of supi>ort than that arising from deceased's daily earnings. — Compare Central E. Co. v, Moore, 61 Ga. 151; Chicago, etc., B. Co. v. Howard, 6 HI. App. 569. Contra, Hodnett v. Boston & A. B. Co., 156 Mass. 86; 30 N. E. Bep. 224. The text is supported by other authorities; see Clay v. Central E. &B. Co., 84 Ga. 345 ; 10 S. E. Bep. 967 ; Lovell v. De Bardelaben Coal & I. Co., 90 Ala. 13; 7 So. Bep. 756; Bradley v. Sattler (HI.'), 41 N.E. Bep. 171; 54 HI. App. 504; Duval o. Hunt, 34Ela. 85; 15 So. Bep. 876; Daniels v. Eailway Co., 86 Ga. 236; 12 S. E. Bep. 365; Bichmond & D. B. Co. V. Johnston, 89 Ga. 660; 15 S. E. Bep. 908; Gulf, C. & S. E. By. Co. V, Southwick (Tex. Civ. App.), 30 S. W. Bep. 692; Daniels v. Savannah, etc.. By. Co., 86 Ga. 236; 12 S. E. Bep. 365. 542 ACTION FOB INJURIES CAUSINO DEATH. of his earnings, but had not done so since, it was held that there was evidence for the jury of pecuniary loss to the father (g). If the party injured receive compensation in satisfaction of all claims before his death, an action will not lie after his death, for his death does not create a fresh cause of action (a). The jury cannot take into consideration mental suffering or loss of society (i). (g) Hetheiington v. N. E. By. Co.. 9 Q. Contra, Sonth., etc., B. Oo. v. SnUivan, B. D. 160. 69 Ala. 273; International & G. N. (fi) Bead v. G. Eastern By. Co., L. B. By. Op. v. Knebn, 70 Tex. S82; 8 S. W. 3Q. B. 655; 9 B. & S. 7U; 37 L. J. Q. B. Bep. 484; Bowes v. City of Boston, 156 278; Griffitbs V. Earl of Dudley, 9 Q. B. Mass. 341; 29 N. E. Bep. 633. SeeYicks- D. 357 ; [Dibble v. New York, etc., B. Co., bnrg & M. B. Co. v. FblUips, 64 Miss. 693 ; 25BaTb. 183; Foalkes!7. Nasbville, etc., 2 So. Bep. 637.] B. Co., 6 Baxt. (Tenn.) 663; Price v. (i) Blake v. Mid. By. Co., 18Q. B. 93. Blchmond & D. B. Co., 33 S. C. 656; 12 In Scotland they may. Patterson v. S. E. Bep. 413; Hecbtv. Ohio & M. By. Wallace, 1 Macq. H. L. Cas. 748. Co., 132 Ind. 607; 32 N. E. Bep. 302. (i) Mental Suffering, etc. — Mental sa&ering and loss of society are not, generally, elements of damages in actions of this kind. — Little Bock, etc., B. Co. V. Barker, 33 Ark. 560; Kansas, etc., B. Co. v. Miller, 2 Colo. 442; Donaldson v. Miss. E. Co., 18 la. 280; Chicago v. Harwood, 80 111. 88; Nashville, eljc, B. Co. ti. Stevens, 9 Helsk. 12; State v. Baltimore, etc., B. Co., 24 Md. 84; Ohio, etc., B. Co. v. Tindall, 13 -Ind. 366; Paul- mier v, Erie B. Co., 84 N. J. L. 151; Huntington, etc., E. Co. v. Decker, 84 Pa. St. 419; County Com. Hartford Co. v. Hamilton, 60 Md. 340; Kesler v. Smith, 66 N. C. 154; March v. Walker, 48 Tex. 372; Cotton Press Co. ■». Bradley, 62 Tex. 587; Brady v. Chicago, 4 Bias. 448; Need- ham V. Grand Trunk B. Co., 38 Vt. 294; Schaub v. Hannibal & St. J. B. Co., 106 Mo. 74; 16 S. W. Bep. 924; James v. Bichmond & D. B. Co., 92 Ala. 231; 9 So. Bep. 335; Webb v. Denver & E. G. W. By. Co., 7 Utah, 17; 34 Pac. Bep. 616; Dwyer v. Chicago, etc., By. Co., 84 la. 479; 51 N. W. Bep. 244; Tobin o. Missouri Pac. By. Co. (Mo.), 18 S. W. Bep. 996; Kelley v. Central E. of Iowa, 48 Fed. Bep. 663; The Corsair, 146 U. S. 335; 12 Sup. Ct. Eep. 949; Btorwe v. Marshall (Tex. Civ. App.), 27 S. W. Eep. 224; Goss v. Missouri Pac. By. Co., 50 Mo. App. 614; Pennsylvania Tel. Co. V. Varnan (Pa.), 15 Atl. Eep. 624; Chicago City By. Co. v. GIl- lam, 27 111. App. 386; Munro v. Pacific Coast D. &. E. Co., 84 Cal. 616; 24 Pac. Bep. 303. In Baltimore & Ohio B. Co. v. Noell (32 Gratt. 394), the mental angnish of a mother for the death of an unmarried son was considered as an element of damage. NOMINAI. — ESEMFLABT — DAMAGES. 543 Damages of a pecuniary nature must be shown {j), and they must not be of a merely nominal character {k). (i) FianUin V. S. E.B7. Oo., 3H. & eon, 4 H.&N. 653; 291,. J. Ex. 25. Nom- If 211. tD^ damages may be lecoveied In (*) Bonltert). Webster. IS W.E. 289; America. Shearman, b. 299. 11 Ii. T. N. S. 698; Dnckwortb v. John- In Beeson v. Green Mountain Gold Mining Co. (57 Cal. 20), the loss of a wife's society. In Cregin v. Brooklyn Crosstown B. Co. (19 Hun, 341), an instmction that a jniy consider the loss sustained by the deprivation of " regular attendance, services and comfort of his wife's society," was held to be proper. But in Howard Co. Com. «. Legg (93 Ind. 523; 47 Am. Bep. 390), damages tor negligent killing were held not to.include the wife's loss of her husband's companionship. The statute may provide that pain and suffering may be an element of damages. — Collins v. East Tenn. B. Co., 9 Helsk. 841. The statutes generally provide that the jury may give such damages as they may deem fair and just. — Infra. 0") Walker v. Lake Shore & M. S. By. Co. (Mich.), 62 N. W. Bep. 1032; IiOUisvUle & N. B. Co. v. Orr, 91 Ala. 648; 8 So. Bep. 360; Carlson V. Oregon, etc., By. Co., 21 Ore. 450; 28 Pac. Bep. 497; McGown v. International & G. N. B. Co., 85 Tex. 289; 20 S. W. Bep. 80; Anderson V. Chicago, etc., B. Co., 35 Neb. 95; 52 N. W. Bep. 840; McAlory v Louisville & N. B. Co., 94 Ala. 272; 10 So. Bep. 507; Bichmond v. Chicago & W. M. By. Co., 87 Mich. 374; 49 N. W. Bep. 621; Kelley v. Central B. of Iowa, 48 Fed. Bep. 663; Chicago, B. I. & P. By. Co. v. Fitzsimmons, 40 HI. App. 360; Moffatt v. Tenney, 17 Colo. 189; 30 Pac. Bep. 348; Hayes V. Williams, 17 Colo. 465; 30 Pac. Bep. 352; Sonthem Pac. Co. v. Lafferty, 57 Fed. Bep. 536; 6 C. C. A. 474; Hutchinson v. St. Paul, etc.. By. Co., 44 Minn. 5; 46 N. W. Bep. 79; Munro v. Pacific Coast D. & B. Co., 84 Cal. 515; 24 Pac. Bep 303; San Antonio & A. P. By. Co. v. Long, 4 Tex. Civ. App. 497; 26 S. W. Bep. 114; 27 S. W. Bep. 113; Topping v. Town of St. Lawrence, 86 Wis. 526; 57 N. W. Bep. 365; Hurst v. Detroit City By., 84 Mich. 539 ; 48 N. W. Bep. 44. But in an action for th^ death of a minor, actual pecuniary damage need not be proved. Atrops v. Costello, 8 Wash. St. 149; 36 Pac. Bep. 620. See Delaware, L. & W. B. Co. v. Jones, 128 Pa. St. 308; 18 AU. Bep. 330; 24 W. N. C. 562. (i) Nominal Damages. — Nominal damages may be given in this country in such actions. — Chicago, etc., B. Co. v. Sweet, 45 111. 197; Oldfleld V. New York & Harlem B. Co., 14 N. Y. 310. See Ihl v. Forty- second St., etc., B. Co., 47 N. Y. 317; Houghkirk v. Delaware & Hud. Canal Co., 92 N. Y. 219; Chicago v. Scholten, 75111.468; Johnstone. Cleveland, etc., B. Co., 7 Ohio St. 336; Atchison, etc., B. Co. v. Weber, 544 ACTION FOB INJURIES CAUSmO DEATH. It is not necessary, however, to show the loss of a legal [433] right, a loss of reasonable expectation of benefit be- ing sufficient to support the action (Z). (Z) FranMin v. S. E. Uy.,atpra; Dalton C. P. 227 ; Fym v. Gt. Noithem By. Co;, V. S. B. Ey.-Co., 4 C. B. N. S. 296 ; 27 L. J. im/ra. 33 Kan. 613; 6 Fac. Bep. 877; Fordyce v. McCants, 61 Ark. 609; 11 S. W. Eep. 694; Anderson v. Chicago, etc., R, Co., 34 Neb. 95; 62 N. W. Rep. 840; Cherokee & P. Coal & M. Co. v. Limb, 47 San. 469; 28 Fac. Rep. 181; Klepsch v. Donald, 4 Wash. St. 436; 30 Fac. Rep. 991; Silberstein V. William Wicke Co., 22 N. Y. S. Rep. 170; 29 Abb. N. C. 291. Exemplary damages are generally not allowed. — Holmes v. Oregon, etc., Ry. Co., 6 Sawj^er, 262; Baltimore, etc., B. Co. v Kelly, 24 Md. 371; Sonthwestem R. Co. p, Fanlk, 24 Ga. 366; Cleveland, etc., B. Co. v. Rowan, 66 Fa. St. 393; Atrops v. Costello, 8 Wash. 149; 36 Fac. Bep, 620; Thompson v. Loaisrille &N. B. Co., 91 Ala. 496; 8 So. Bep. 406; Mulchahey 17. Washbnm Car Wheel Co., 145 Mass. 281; 14 N. E. Bep. 106. They are allowed in Texas. — Galreston, etc., R. Co., v. La Gierse, 51 Tex. 189; Cotton Press Co. v. Bradley, 62 Tex. 587; Tex. Const. 1876, Art. XVL But see GnU, a & S. P. Ry. Co. o. Compton, 76 Tex. 667; IS S. W. Bep. 667. (Where both actaal and exemplary damages are sought the allega- tions should be in the nature of two distinct counts on different causes of action. — Galveston, etc., R. Co. v. La Gierse, 61 Tex. 189. " Mere negligence of a railroad employe causing death is not a wUlful act or omission of a corporation for which exemplary damages may be recovered nnder the Tex. Const. 1869, § 30." — Houston, etc., Ry. Co. V. Baker, 67 Tex. 419. And they are allowed in some other States. — Morgan «. Dnrfee, 69 Mo. 469; Haley v. Mobile, etc., B. Co., 7 Baxt. 239; Baltimore, etc., B. Co. V. Noell, 32 Gratt. 394. But nearly all the cases support the rule that exemplary damages can be recovered only where the defendant's neglect was gross, willful or malicious. See Haehl v. Wabash B. Co., 119 Mo. 326; 24 S. W. Bep. 737; Bichmond & D. B. Co. o. Preeman, 97 Ala. 289; 11 So. Bep. 800; Kansas City, Pt. S. & M. B. Co. v. Daughtry, 88 Tenn. 721; 13 S. W. Bep. 698; International & G. N. B. Co. v. McDonald, 76 Tex. 41; ,12 S. W. Bep. 860. (2) Grotenkemper v. Harris, 26 Ohio St. 510; Fanlmier v. ErieB. Co., 34 N. J. L. 151; Pennsylvania B. Co. v. Keller, 67 Fa. St. 300; Mclntyre o. New York, etc., B. Co., 37 N. Y. 287 ; Chicago & E . B. Co. ». Branyan, lOInd. App. 570; S7 N. E. Bep. 190; Fetrie v. Columbia & G. B. Co., 29 S. C. 303; 7 S. E. Bep. 515. It has been held that it is no defense that the heirs of deceased have NOMINAL BXEMPLAKY DAMAGES . 545 [434] Expenses of funeral and mourning are not recov- erable (m). [435] It was held in one case that damages are not to be estimated according to the value of the deceased's life calculated by annuity tables, but the jury are to give a fair compensation (n); but it has been decided that where the deceased had covenanted to pay an annuity to the plaintiff, the tables might be consulted to show the value of his loss (j») Dalton V, S. E. By. Co., supra. Jni, 758; and see the judgment of Brett, See, however, Osborne v. GUlett, post, J., in Eowley v. L. & N. W. By. Co., Mnrphy v. New Tort By. Co., 88 N. T. infra; PhlUlpa v. L. & S. W. By. Co., 6 Q. 4AB. B. D. 78; 49 L. J. Q. B. 233. (n) Armsworth v. S. E. By. Co., U assigned their claim. — State v. Boston, etc., H. Co., 58 N. H. 110. See Quin V. Moore, 15 N. Y. 432. (m) Jackson ». Pittsburgh, etc., Ey. Co. (Indiana), 39 N. E. Eep. 663; Holland v. Brown, 35 Ped. Bep. 43. In America the statutes of the several States have generally been construed as inclading such expenses and the expenses of medical attendance and nursing when the law imposes an obligation npon the person for whose benefit the action is brought to pay them. — Pennsylvania, etc., R. Co. ». Bantom, 54 Pa. St. 495; Owen V. Brockschmidt, 54 Mo. 285; Boeder v. Ormsby, 22 How. Pr. 270; Bains o. St. Louis Iron Mountain, etc., B. Co., 71 Mo. 164; Bunyea v. Metropolitan B. Co., 19 D. C. 76; Leahy v. Davis, 121 Mo. 227; 25 S. W. Bep. 941; Gulf, C. & S. F. Ey. Co. v. Southwick (Tex. Civ. App.), 30 S. W. Eep. 592; Petrie v. Columbia & G. E. Co., 29 S. C. 303; 7 S. E. Eep. 515; State D. Probate Court of Dakota County, 51 Minn. 241; 53 N. W. Eep. 463; Augusta Factory v. Davis, 87 Ga. 648; 13 S. E. Bep. 577. And if any one for whose benefit the action is brought is lawfully bound to pay such expenses they may be recovered, though all the bene- ficiaries are not so boond. — Murphy v. New York Central, etc., E. Co., 83 N. Y. 445. (n) While mortality tables are admissible in evidence (Balch v. Grand Bapids & I. B. Co., 67 Mich. 394 ; 34 N. W. Bep. 884 ; Galveston, H. & S. A. Ey. Co. V. Leonard (Tex. Civ. App.), 29 S. W. Eep. 955; Sellars v. Foster, 27 Neb. 118; 42 N. W. Eep. 907; San Antonio & A. P. Ey. Co. u. Bennett, 76 Tex. 151 ; 13 S. W. Bep. 319) ; the jury should award a fair compensation. — Lowe v. Chicago, etc.. By. Co. (Iowa), 56 N. W. Eep. 519; St. Louis, I. M. & S. By. Co., v. Needham, 62 Fed Bep. 371; 3 C. C. - A. 129; 10 V. S. App. 339. See Nelson v. Lake Shore, etc., By. Co. (Mich.), 62 N. W. Bep. 993. Such tables are not indispensable. — Atchi- son, T.& S. F. B. Co. V. Hughes (Kansas), 40 Fac. Eep. 919; Deisen v. Chicago, etc., By. Co., 43 Minn. 454 ; 45 N. W. Eep. 864. 35 546 ACTION FOE INJURIES CADSING DEATH. (o). In the latter case the deceased was bound by his covenant, but in the former case the deceased might have varied the disposal of his income. It seems equally objec- tionable to [436] allo^ the jury to suppose that they are bound by the table or to preveilt them from availing themselves of the assistance of the tables. The deceased may have been in possession of a fixed in- come, so that if he had lived his injuries would not diminish his income, but the loss, though arising from the injuries, is practically sufiered from the fact of the death causing the fixed income to be distributed ; in such case the reason- able expectations of the persons entitled under the Act, and whose interests have been injuriously affected by the death, have to be considered, and even the loss of means of edu- cation and of the comforts and conveniences of life (p). A wife received an injury on a railway to the pecuniary loss of her husband. On his death she sued the company to recover as testatrix for such loss.' It was held that, the action being on the contract to carry safely, and the loss having accrued to the personal estate, the action survived to [437] her (q). And so it was held that an executrix might recover for loss sustained by her husband being injured and unable to attend to business till his death (r). (o) Kowley v. L. & N. W. By. Co., 12 (g) Potter v. Met. By. Co., 32 L. T. N. I.. J. Ezch. 163; L. B. 8 Ezch. 221.' S. 36 (Ex. Oh.). (r) Btadshavrv. liancandNewToTk (j>) Pym V. Gt. Northern By. Co., 4B. By. Co., L. B. 10 O. P. 189; 44 L. J. C. P. & S. 396; 33 L. J. Q. B. 377. 148. See remarks In LegKott v. Gt. N. By. Co., 1 Q. B. D. 604; [see inft-a], (o) GreoTgia B.Co. v. Oaks, 42 6a. 410 ; Walters v. Chicago, etc., B. Co.", 41 la. 71 ; Louisville, etc., B. Co., v. Mahony's Admrx., 7 Bnsh, 235 ; Ssn- ter V, New Tork, etc., B. Co., 66 N. Y. 60; Donaldson v, Mississippi, etc., B. Co., 18 la. 280. (r) Long V. Morrison, 14 Ind. S9S; Hyatt v. Adams, 16 Mich. 180; Barley v. Chicago, etc., B. Co., 4 Bias. 430. Cregino. Brooklyn, etc., B. Co., 75 N. T. 192. Eden v. Lexington, etc., B. Co., 14 B. Mon. 204. Needham V. Grand Trank B. Co., 88 Vt. 294. But when there may be two causes of action, one for loss of life of DAMAGES — DISTRIBUTION . 547 The maxim actio personalis moritur cum persona applies however where the cause of action is in substance an injury to the person, and not an injury to the personal estate. So that for the merely consequential expenses arising from the injury to the person, no action can be brought by the personal representative (s). As to the distribution of damages between widow and children, see Sanderson v. Sanderson (<), Shallow v. Ver- den (m). It seems that a judgment recovered for damages for in- juries causing death is no bar to an action for injuries to deceased's personal property arising from the same negligence (x) ; and it is presumed the converse would hold good. It is no answer to an action under this statute that the («) Foiling V. 6t. Eastern By. Co., 9 150.— [Hedrlctw.nwacoEy.&Nav. Co., ■Q. B. D. 110. 4 Wash. St. 400; 30 Pac. Rep. 714.] (0 Sanderson v. Sanderson, 36 L. T. (x) Barnett :;. Lacas, 6 Ir. B. O. L. N. S. 847. 247. («) Shallow V. Verden, 9 Ir. B. O. L. deceased and tbe other for loss and suffering before death by the same cause, a judgment^ is one to be held a bar to the other. — Hansford v. Payne, 11 Bush, 380. In Illinois under the act of 1853 damages are such as arise from pecu- niary loss to the widow or next of kin ; none are recoverable for the suffering of the deceased or disability in his business. — Holton v. Daly, 106 lU. 131. (s) An action abates by the death of the wrong-doer, in some States. — Russell V. Sunbury, 37 Ohio St. 372; Hegerich v. Keddie, N. Y. Ct. App. 1 East. Bep. 86. But in cases of death by wrongful act, the general rule under the stat- utes, is that the action is not abated. — Senn v. Southern B. Co., 124 Mo. 621; 28 S. W. Eep. 66; Vicksburg & M. R. Co. v. Phillips, 64 Miss. 693; 2 So. Rep. 637; People v. Troy Steel & I. Co., 31 N. Y. S. Eep. 337. (i) The distribution of the amount recovered, is generally regulated by statute. See Chicago & A. R. Co. v. Logue, 47 III. App. 292; Richmond V. Chicago & W. M. By. Co., 87 Mich.i 374 ; 49 N. W. Rep. 621 ; Eajnowski V. Detroit, etc., R. Co., 74 Mich. 16; 41 N. W. Bep. 847, 849; Powell v. Powell, 84 Va. 416; 4 S. B. Bep. 744; Missouri Pac. By. Co. v. Henry, 75 Tex. 320; 12 S. W. Bep. 828. 548 ACTION FOE INJDEIB8 CAUSING DEATH. act caasing the injury was a felony which has not been prosecuted (y). in) Osborne v. GlUett, L. B. SEzch. 88; 42 L. J. Ex. 63. (y) By statute in some States it is provided that the right of action of any person injured by any felony shall not be merged in such felony. — N. Y. Code Civil Proc, vol. 4; N. Y. E. S., § 1899, infra. See Tex. Eev. Stats. 1879, pp. 419, 420. It is provided by statute in Georgia that "if the injury amounts to a felony the person injured must simultaneously, or concurrently, or pre- viously prosecute for the same or allege a good excuse for the failure so to prosecute, provided that this section shall not apply to torts committed by railroad corporations or other incorporated companies, or their agents or employes, nor shall the same apply to natural persons." — 6a. Code, 1882, § 2970. From Judge Bennett's note to the case of Appleby v. Franklin, High Ct. of Justice, Q. B. Div., 25 Am. Law Beg. 304, 307, it is gathered that the rule that a person who has been injured by a felony is not allowed to bring an action upon it for damages until he has institated criminal pro- ceedings was adopted in Alabama (McGrew v. Cato, Minor, 8 ; Middle- ton V. Holmes, 3 Fort. 424; Blackburn v. Minter, 22 Ala. 613; Martin v. Martin, 26 Id. 201; Nelson v. Bondurant, 26 Id. 341; Bell v. Toy, 35 Id. 184), and Georgia (Adams v. Barrett, 5 Ga. 404; Neal ». Farmer, Sid. 556; McBain v. Smith, 13 Id. 315); recognized in Pennsylvania (Hut- chinson V. Bank of Wheeling, 41 Fa. St. 42) ; denied in Massachusetts (Boston, etc., B. Co. v. Dana, 1 Gray, 83) ; but approved in a subsequent case (Atwood v. Fisk, 101 Mass. 365), and denied in the following cases: Brunson V. Martin, 17 Ark. 277; Hyatt v. Adams, 16 Mich._189; Lofton V. Vogler, 17Ind. 106; Newell o. Cowan, 30 Miss. 492; Mitchell «. Mims, 8 Tex. 6; Plummer v. Webb, 1 Ware, 71; Allison v. Bank, 6 Band. 223; Fettingill v. Eideout, 6N. H. 454,- Nash v, Frlmm, 1 Mo. 125; Mann v. Trabue, Id. 709; Gray v. McDonald, 104 Mo. 303; 16 S. W. Eep. 398; VawtercL Hultz, 112 Mo. 633; 20 S. W.Bep. 689; Whiteo.Fort, SHawks, 251. Judge Bennett concludes : — " 1st. A private Injury is not 'merged' in a felony, so that the right of recovery is forever gone, even though the criminal has been convicted and punished. " 2d. That it is not necessary that a criminal trial should be had before a civil suit can be commenced. " 3d. That If the private action is first commenced, it will not be sus- pended or continued, until after the criminal has been convicted. "4th. That consequently the Statute of Limitations will not be sus- pended during the pendency of a criminal prosecution. ACT CAUSING IKJUKY A FELONY. 549 [438] The plaintiff's daughter was killed by the de- fendant's negligence, and he claimed damages for loss of " 6th. That in the few States where the contrary doctrine has been more or less recognized, it has never been extended to misdemeanors, bnt is strictly confined to felonies. — 4 Ohio, 376; 6 B. Mon. 38; 15 Ga. 349; leid. 203." In Appleby v. Franklin, High Ct. Justice, Q. B. Div., 25 Am. Law Beg. 304, the English rule that a person who has been injured by a felony is not allowed to bring an action upon it for damages until he has instituted criminal proceedings, was held not to apply where the plaintiff had been indirectly injured in the loss of his servant's or his daughter's services. The action was for loss of service by seduction. The statement of claim alleged in the first paragraph that the defendant had seduced the plain- tiff's daughter and servant, and in the second paragraph that the defend- ant had administered noxious drugs to the plaintiff's said daughter for the purpose of procuring abortion, whereby she had besn made ill and incapacitated for service. The defendant took out a summons^ before a Master to strike out paragraph 2, on the ground that it disclosed a fel- ony for which there had been no prosecation, and that therefore no cause of action arose upon it. The Master struck out the paragraph and the plaintiff appealed to Stephen, J., Who referred the question to the Divis- ional Court. Huddleston, B., said: — " The statement of claim was made by a mother alleging that the de- fendant bad seduced her daughter. In the second paragraph it was stated that the defendant had further injured her daughter by administering drugs to her for the purpose of procuring abortion. It was said that the Master was right, because paragraph 2 disclosed a felony which could not be actionable until prosecuted. Mr. Terrell says the objection cannot be taken by demurrer nor by plea: Boope v. D'Auigdor. How- ever, it seems clear from the case of Wells v. Abraham, that there may be a power to strike it out, and there Is strong authority to show that a party injured cannot maintain an action against the party injuring him : Wellock V. Constantine. In that case Willes, J., nonsuited the plaintiff, on the ground that she was the party injured. This was noticed in the case of Ex parte Ball, In re Shepard, although some doubt was suggested -whether Wellock v. Constantine was an authority; at all events Bram- well and Baggalay, L. JJ., decided in favor of the plaintiff, on the ground that the duty to prosecute, if any, was not in him ; therefore, when a person who is himself or herself injured, takes civil proceedings for the injury, no action will He until there has been a prosecution in a criminal court. This rale does not apply when the party suing is not the party Injured. A master or father who sues for loss of service, can maintain the action even if a felony is committed. In the case of Osborn v. Gil- lett, it was held that the master could not maintain an action for the loss 550 ACTION FOE INJCEIE8 CAUSING DEATH. her serv- [439] ices; the defendant pleaded that the daughter was killed on the spot. It was held by the Court of his daughter and servant, who bad been immediately killed; but the 4tli plea, that the act amounted to a felony, and that the person commit- ting it had not been prosecuted, was held bad. The argument of Graham in that case quoted White v. Spettigue, 13 M. & W. 603, as establishing that the rule as to a right of action being suspended by felony, was not applicable except between the party injured and the criminal; White v. Spettigue -is in point. In this state of things we ure bound by Osborn V. Gillett, and the master was wrong in striking out the second para- graph. It would be a scandalous failure if the defendant could not be made amenable to damages in such a case. The appeal must be allowed with costs." Willes, J., said: " I am of the same opinion, and the antborities leave no room for doubt. A person injured cannot bring an action for a cause which amounts to a felony until he has prosecuted the felon. Such a claim is 'not demurrable, nor can it be objected to by plea, because, if either of these were allowed, it would extinguish the cause of action.' Whether the cause could be suspended or withdrawn until the condition was fulfilled or not, is another matter, but no better course could, in my opinion, be adopted than striking out that which is wrongly put in. This, however, could only be done against a person who is under an obligation , to prosecute, and that is not the case here: Osborn v. Gillett is strictly in point." [p. 562 (a) (b)], Some of the State statutes have been construed to not Include cases where death is instantaneous. — Grosso v. Delaware, etc., E. Co., 60 N. J. L. 317; 13 Atl. Eep. 233; Worden v. Humeston & S. E. Co., 72 la. 201 ; 33 N. W. Eep. 629; Belding v. Black Hills, etc., R. Co., 3 S. D. 369; 53 N. W. Eep. 760; Beckman v. Georgia Pac. By. Co., (Miss.), 12 So. Eep. 966; Womack o. Central E. & B. Co., 80 Ga. 132; 5 ■ S. E. Eep. 63; Illinois Cent. E. Co. ». Pendergrass, 69 Miss. 425; 12 So. Eep. 954. In Connecticut, New York, South Carolina, Tennessee and Texas an action may be maintained whether the death is instantaneous or conse- quential.— Murphy t>. New York, etc., E. Co., 30 Conn. 184; 29 Conn. 496; Brown v. Buffalo, etc., E. Co.j 22 N. Y. 191; Schlicbting v. Wintgen, 25 Hun, 626 (though the death did not occur within a year and a day from the time of the injury); Nashville, etc., E. Co. v. Prince, 2 Heisk. 680; Fowlkes ». Nashville, etc., E. Co., 6 Baxt. 663; Haley v. Mobile, etc., E. Co;, 7 Baxt. 239; International, etc., B. Co. v. Kindred, 67 Tex. 491; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 88 Tenn. 721; 18 S. W. Rep. 698; Price v. Bailroad Co., 33 S. C. 562; 12 S. E. Rep. 413; Eeed V. Northeastern R. Co., 37 S. C. 42; 16 S. E. Rep. 289. In TuUy v. Fitchburg E. Co. (134 Mass, 499), it was held that where a person struck by a locomotive engine remains in a perfectly uncon- MEASURE OF DAMAGES. 5'51 (Kelley, C. B., [440] and Pigott, B., Bramwell, B., dis- senting) that the plea was a good answer, on the ground scions condition until his deatli, Iiis adminlstratOT is not entitled, in an action against tlie company, to recover substantial damages in the absence of evidence of any considerable expense or loss between the time of the injury and the death. See Bancroft v. Boston, etc. B. Co., 11 Allen, 34; Commonwealth v. Metropolitan R. Co., 107 Mass. 236; Maher v. Boston &A. R. Co., 158 Mass. 86; 32 N. E. Rep. 960; Hodnett V. Boston&A.R. Co., 156 Mass. 86; 30 N. E. Rep. 224. Measur»ot Damages. — The measure of damages recoverable is the amount which the deceased would probably have earned during his life time for the benefit of his family, taking into consideration his age, abil- ity, and disposition to work, habits of living and expenditure. — Mans- field Coal & Coke Co. v. McEnery, 91 Pa. St. 185; 36 Am. Rep. 662. See Pierce v. Conners, 20 Colo. 178; 37 Pac. Rep. 721; Hogue v. Chicago & A. R. Co., 32 Fed. Rep. 365; Central R. R. v. Rouse, 77 Ga. 393; 3 S. E. Rep. 307; Clapp v. Minneapolis & St. L. Ry, Co., 36 Minn. 6; 29 N. W. Rep. 340; Richmond & D. C. R. Co. v. Hammond, 93 Ala. 181; 9 So. Rep. 577; Pool». Southern Pac. R. Co., 7 Utah, 303; 26 Pac, Rep. 654; Black- well V. Lynchburg & D. R. Co., Ill N. C. 151 ; 16 S. E. Rep. 12. Skill and capacity (Skottowe v. Oregon, etc., Ry. Co., 22 Ore. 430; 30 Pac. Rep. 222), the nature of the calling CWheelan v. Chicago, etc., Ry. Co., 85 la. 167; 52 N. W. Rep. 119; Louisville, E. & St. L. R. Co. v. Clarke, 152 U. S. 230; 14 S. Ct. Rep. 579), and qualifications of deceased to train and instruct his minor children, are proper elements to be con- sidered in estimating damages. — St. Louis, I. M. & S. Ry. Co. v. Sweet, 60 Ark. 550; 81 S. W. Rep. 671. But the loss of the society and com- panionship of a husband and father (Atchison, T. & S. F. R. Co. v. Wil- son, 48 Fed. Rep. 67; 4 U. S. App. 26; 1 C. C. A. 25; Taylor B. & H. Ry. Co. V. Warner, 84 Tex. 122; 19 S. W. Rep. 449; 20 Id. 823; Gulf, C. & S. F. Ry. Co. V. Finley (Tex. Civ. App.), 32 S. W. Rep. 51, and the possibility of decendent's having received a government pension (St. Louis, I. M. & S. Ey. Co. v. Maddry, 57 Ark. 306; 21 S. W. Rep. 472), or having married, if he had lived, are not such elements. — Tennessee C, I. & R. Co. V. Hemdon, 100 Ala. 451; 14" So. Rep. 287. An instruction to this efiect was held too favorable to defendant in Eleever v. Market St. R. Co. (69 Cal. 294), as the statute gave to the jury the power to assess such damages as " under the circumstances of the case may be just." " The reasonable expectation of pecuniary advantage from the continu- ance of the life of the deceased is the true criterion by which to determine the amount of damages to be given; and in this view evidence of the age, habits of industry, means, business, etc., of the deceased are held to be admissible." — 3 Wood on Railways, p. 1829 : Burtin v. Wilmington, etc., B. Co., 8 N. C. 604; and see Shaberv. St. Paul, etc., R. Co., 28 Minn. 103; 552 ACTION FOE IN. ant mii3t show that some of the Injury Glandllng, [42 Pa. St. 493; Thomas v. wonld have happened apart from his Harris, 21 L. J. Ex. 353. act. Workman v. 6. N. W. By. Co., 32 L. (c) Arden v. Goodacre, 11 0. B. 371 ; J. Q. B. 279. Ferklos v. Vanghan , 7 8c. N. B. 886 ; Wal- (c) Damages. — Nashville, etc., B. Co. v. Prince (6 Helsk. 587), (in action for injuries caasing death, evidence that deceased was drunken and worthless and made no provision for his family admissible in mitiga- tion of damages).— The Cleveland, etc., B. Co. v. Sntherland,19 Ohio St. 151 ; Devol v. Van Vranker, 29 Hun, 201. Evidence of disturbed marital relations. In mitigation of damages, is not reversible error, where a husband has sued for the loss of his wife's services and society, caused by defendant's negligence. — Sullivan v. Lowell & D. St. By. Co., 163 Mass. 636; 39 N. £. Bep. 185. (587) 588 DAMAGES. against a master for the negligence of his servants, how- ever gross, if he is personally free from fault, and has main- tained personal supervision over them (d), but if a master [469] employs a notoriously drunken driver (e) he is answerable for his negligence. Recovery of insurance money cannot be set up in miti- gation of damages for negligence (/). Where the plaintiff sued the owner of an omnibus for per- sonal injuries, but had accepted a sum of money from the driver awarded by a magistrate as compensation, it was held a good answer to the action, even though the sum was quite inadequate, and although the money was paid by the driver and not by the owner of the omnibus (g). So if a plaintiff obtains a judgment against a master or a servant, he can- not afterwards sue the other of them (A). If a chattel be lost or destroyed through the negligence of the defendant the measure of the damages is the value of the chattel, but if the chattel be only injured then the depreciation in its value is the true measure, with an extra (d) Morfoid V. Woodworth, Ind. 83; 276;Eiireka Fertilizer Oo. v. Baltimore Sliearman, s. 601. C. S. & E. Co., 78 Md. 179; 27 Atl. Bep. (e) Frink v. Ooe, i Greene (Iowa), 1035 ; Lake Erie & W. B. Oo. v. GrifSn, 8 6S6. Ind. App. 47 ; 35 N. E. Bep. 396 ; Henniug (/) Yates V. Wliyte, i Bing. N. C. v. Western Union Tel. Co., 41 Fed. Bep. 272; Bradbnrne v. G. W. By. Oo., 44 L. 864; Hammond v. SchifE, 100 N. O. 161; J. Ex. 9. Tlie insurer is entitled to Ills 6 S. E. Bep. 753; Dillon v. Hnnt, 105 Mo. sbare of the damages recovered. Ban- 154; 16 S. W. Bep. 516; St. Lonis A. & T. dall V. Cockran, 1 Ves. Sen. 97; Mason v. By. Co. v. Fire Assoc, of Fliila., 66 Ark. Sainsbnry, 3 Dong. 64; Clark v. Blything, 163; 18 S. W. Bep. 42. 2 B. & C. 254. The benefit of an insur- note (d)]. ance to snrviTors may be set np nnder (g) Wright «. London General Omnl- Lord Campbell's Act, see Oh. VII.;— bus Co., 46 L. J. Q. B. 493. [Lindsay v. Bridgewater Gas Co., 14 Fa, (A) Addison on Torts, 5th ed., p. 102. Oo.Ct.E. 181; 24 Pittsb. Leg. J. (M. 8.) (d) In Cleghoru v. New York, etc., B. Co., 66 N. T. 47, the court said : — " For injuries by the negligence of a servant while engaged in the business of a master within the scope of his employment, the latter is liable for compensatory damages, but foi such negligence, however gross or culpable, he is not liable to be punished in punitive damages unless he is chargeable with rvoss misconduct. Such misconduct may DAMAGES CHATTEL. 589 allowance for the loss of the use of the chattel while it is being repaired or replaced. Thus in an action for injury to a horse the proper meas- be established by showing that the act of the servant was authorized or ratified or that the master employed or retained the servant knowing that he was incompetent or Irom bad habits unfit for the position he occu- pied. Something more than ordinary negligence Is requisite; it must be reckless and of a criminal nature and clearly established. Corporations incur this liability as well as private persons. If a railroad company, for instance, knowingly and wantonly employs a drunken engineer or switchman ; or retains one after knowledge of his habits, clearly brought, home to the company, or to a superintending agent authorized to employ and discharge him, and injury occurs by reason of such habits, the com- pany may and ought to be amenable to the severest rule of damages ; but I am not aware of any principle which permits a jury to award exem- plary damages in a case which does not come up to this standard; or to graduate the amount of snch damages by their views of the propriety of the conduct of the defendant unless such conduct is of the character above specified." Punitive damages are allowed for gross negligence in some cases. — Maysville, etc., K. Co. v. Herrick, 13 Bush, 122; Taylor v. Grand Trunk K. Co., 48 N. H. 304; Kansas Pac. R. Co. v. Kessler, 18 Kan. 623; Fell o. Northern Pac. E. Co., 44 Fed. Sep. 248. When the act or omission is willful or wanton. — Wilkinson v. Drew, 75 Me. 360; Quinn v. South Carolina Ey. Co., 29 S. C. 381; 7 S. E. Bep. 614; Eucker v. Smoke, 37 S. C. 377; 16 S. E. Eep. 40; Chattanooga, E. & C. B. Co. B. Liddell, 85 Ga. 482; 11 S. E. Eep. 853; McFee v. Vicksburg, etc, E. Co., 42 La. Ann. 790; 7 So. Eep. 720. But they are not allowed for mere negligence. — LouisvlUe, etc., E. Co. V. Shanks, 94 Ind. 598; Colvin v. Peck, 62 Conn. 155; 25 Atl. Eep. 355; EastTenn., U. & G. Ey. Co. v. Lee, 99 Tenn. 570; 18 S. W. Eep. ^68. However, the master may become liable for exemplary damages, if he authorizes or ratifies his servant's act. — Muckle o. Bochester Ey. Co., 79 Hun, 32; 29 N. T. S. Bep. 732; Staples v. Schmid (B. I.), 26 At). Bep. 193. They may be allowed against a corporation for willful misconduct or recklessness. — Milwaukee, etc., E. Co. ». Arms, 91 tJ. S. 489; Hopkins V. Atlantic, etc., E. Co., 36 N. H. 9. Where there Is a wanton disregard of the safety of others. — Illinois, etc., E. Co. V. Hammer, 72 111. 353. They are not generally recoverable against a municipal corporation. — Jacksonville v. Lambert, 62 111. S19; Chicago v. Kelly, 69 El. 477; Par- sons V. Lindsay, 26 Kan. 426; Wilson v. Wheeling, 19 W. Va. 323. See Beach Pub. Corp., § 1138. 590 DAMAGES, ure of damages is the keep of the horse, the farrier's bill, and the loss in the value of the horse (i), with some reason- able sum for any pecuniary loss of the use of the horse while under treatment (j ), or for hiring another horse to do his duty (k). (i) Hnghes «. Qaentin, 8 C & F. 703. (£) Johnson v. Eolyoke, 105 Mobs. 80. 0' ) Watson V. Lisbon Bridge Co., U Maine, 201; GUIett v. Western Ey. Co., 8 Allen, 660. (k) The damages recoverable for the destrnctlon of a chattel are its value at the time of the injury. ^- Atkinson v. Atlantic, etc., K. Co., 63 Mo. 367; Toledo, etc., E. Co. v. Johnson, 74 111. 83; Chapman v. Chicago, etc., E. Co., 26 Wis. 304; Ingram v. Eankin, 47 Wis. 406; Henrys. Cen- tral B. & B. Co., 89 Ga. 815; 15 S. E. Eep. 757; Stanffer v. Miller Soap Co., 151 Pa. St. 330; 25 Atl. Eep. 95; 31 W. N. C. 13; Jacksonville, T. & K. W. Ey. Co. V. Peninsular L., T. & Mfg. Co., 27 Fla. 1, 157; 9 So. Eep. 661 ; Gulf, C. & S. t. Ey. Co. v. Johnson (Tex. Civ. App.), 25 S. W. Eep. 1015; Union Pac, D. & G. Ey. Co. v. Williams, 3 Colo. App. 526; 34 Pac. Eep. 731 ; Crawford v. International & G. N. E. Co. (Tex. Civ. App.), 27 S. W. Eep. 263; Yoakum v. Dunn, 1 Tex. Civ. App. 524; 21 S. W. Eep. 411 Parmelees. Baymond, 43 111. At)p.[609; Godwin v. Wilming- ton & W. E. Co., 104 N. C. 146; 10 S. E. Eep. 136; Bullington ». Newport News & M. V. Co., 32 W. Va. 436 ; 9 S. E. Eep. 876 ; Chicago & A. By. Co. ■». Barnes, 116 Ind. 126; 18 N. E. Rep. 459 ; Gdlveston, H. & S. A. Ey. Co. V. Matula, (Texas), 19 S. W. Eep. 376. (For the loss of a family portrait, the original cost and the probable expense of reproduction. — Houston, etc.,.E. Co. v. Burke, 56 Tex. 323; 40 Am. Eep. 808.) So, for the wrongful legal seizure of goods, the damage is the value thereof at the time of taking with interest to the time of trial. — Perrin V. Wells, 155 Pa. St. 299; 26 Atl. Eep. 543; Coulson v. Panhandle Nat. Bank, 54 Eed. Eep. 855. And where it Is injured, damages for the depreciation in value and for the loss of its use during the time it is being repaired. — Oleson v. Brown, 41 Wis. 413; Wheeler v. Townshend, 42 Vt. 15; Street©. Laumier, 34 Mo. 469; Shelbyville, etc., R. Co. ». Lewark, 4 Ind. 471 ; Chicago, B. & Q. E. Co. V. Metcalf (Nebraska), 63 N. W. Eep. 51; Hoffman v. Metro- politan St. Ry. Co., 51 Mo. App. 273. In McLaughlin v. Bangor (58 Me. 399), it was held that damages could not be recovered for the loss of the use of a chattel. And where the injury is to a chattel other than a domestic animal, dam- ages for the cost of repairs are not recoverable. — Ryan v. Lewis, 3 Hun, 429. For injury to a domestic animal the owner is entitled to recover for DAMAGES BEEACH OF CONTRACT. 591 [470] We have seen ante, pp. 2, 26, that a man is not responsible for all the consequences which follow upon his negli- [471] gent act, but only for those which might be reasonably expected to follow by a prudent man (0- So where a>man on a coach, in a perilous position in consequence of a negligent act of the proprietor, jumped off and broke his leg, the coach proprietor was held liable (m). But where the plaintiff tried to shut a railway carriage-door when the train was in motion, it was held that the company were not liable for the consequences (n), and in general damages are not recoverable where they are too re- mote {^o). But all damages which under ordinary circum- stances niight be expected to result are recoverable {p). Where the negligence arises in the performance of a con- tract, the damages must be such as can reasonably be sup- posed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it (g'). So where the defendant was a collec- (0 Greenland v. Chaplin, 5 Exch. 248; 626; 10 So. Bep. 333; Nelson v. Boston Cox V. Barbidge, 13 C. B. N. S. 130 ; 32 L. & N. B. Co., 155 Mass. 356 ; 29 N. E. Bep. J. 0. P. 89. ^ 586; Load; v. Claike, 45 Minn. 477; 48 N. (n>) Jones v. Boyce, 1 Stark. 493. W. Bep. 25]. (n) Adams v. Lancashire & Yorkshire (p) Bigby v. Hewitt, S Exch. 240. By. Co., L. E. i 0. P. 739. Workman v. G. N. By. Co., 32 L. J; Q. B. Co) See Ch. I., anU; — [Mann v. Tay- 79; Greenland v. Chaplin, 5 Exch. 243. lor, 78 la. 355 ; 43 X. W. Bep. 220 ; GoodeU (g) Hadley v. Baxendale, 23 L. J. Ex ; V. BlnS City Lbr. Co., 57 Ark. 203; 21 S. 179; see the recent case of Philllpps v. W. Bep. 104; Burton v. Henry, 90 Ala. L. & S. W. By. Co. (injuries to railway 2Sl;7So.Eep.925;St.IiOnis, A. &T.By. passenger), 49 L. J. 0. A. 233;Ii. B. 6Q. Co. V. Neel, 56 Ark. 279; 19 8. W. Bep. B. D. 78. 963; Beed Lumber Co. v. Lewis, 94 Ala. expenses incurred in attempting to cnre it. — Street v. Laumier, 34 Mo. 469 ; Watson o. Lisbon Bridge, 14 Me. 201 ; Sullivan County v. Arnett, (Indiana), 19 N. B. Eep. 299; Gulf, C. & S. I". Ey. Co. v. Keith, 74 Tex. 287; 11 S. W. Bep. 1117; Galveston, H. & S. A. Ky. Co. ». Tuckett (Tex. Civ. App.), 25 S. W. Bep. 670. The measure of damage^ for property lost by the fault of a ferryman in its transportation was held to be the value of the property with com- pensation for the actual expenses and loss of it caused by the detention on account of the accident. — Evans v. Budy, 34 Ark. 383. (g) This is the rule in this country. — First National Bank v. Western Union, 30 Ohio St. 555; 27 Am. Bep. 485; United, etc., Tel. Co. v. 592 DAMAGES. tor of telegrams, and received one in cypher which was unintelligible to him from the plaintiffs, and he Gildersleeve, 29 Md. 232; 9 Am. Eep. 149; Candee v. Western Union, etc., Tel. Co., 34 Wis. 471; 17 Am. Eep. 422; see note Western Union Tel. Co. V. Blanchard, 45 Am. Eep. 496; Mlhills Mnfg. Co. v. Day. 60 la. 250; BlUmeyer v. Wagner, 9 Pa. St. 92; Fnrstenburg v. Fawsett, 61 Ma. 184; Graves v. Glass, 86 la. 261; 63 N. W. Eep. 231; Bates v. 'Diamond Crystal Salt Co., 36 Neb. 900; 56 N. W. Eep. 258; Koch ». Merk, 48 111. App. 26; City of Lincoln v. Beckman, 23 Neb. 677; 37 N. W. Eep. 593; Blaechinska v. Howard M. & H., 59 Hun, 322; Wallace v. Western W. C. E. Co., 104 N. C. 442; 10 S. E. Rep. 552; Drnmmond v. Crane, 159 Mass. 677; 35 N. E. Eep. 90; Moorman v. Seattle & M. Ey. Co., 8 Wash. 88; 35 Pac. Eep. 596. A party recovering for breach of a contract is entitled to the profits vrhich he would have realized therefrom. — Hitchcock v, Galveston, 3 Woods, 287; Wisner v. Barber, 10 Ore. 342; Hawley v. Corey, 9 Utah, 175; 33 Pac. Eep, 696; Lydecker «. Valentine, 71 Han, 194; 24 N. T. S. Eep, 667; Dykema v. Minneapolis, etc., Ey. Co., 101 Mich. 47; 59 N. W. Eep. 447; Eoberts v. Drehmer, 41 Neb. 306; 59 N. W. Rep. 911; Corbett v. Anderson, 86 Wis. 218; 54 N. W. Eep. 727; Dickinson v. Hart, 66 Hun, 631; 21 N. Y. S. Eep. 307; City of Shermans. Connor (Texas), 29 S. W. Eep. 1053. And one who, without fault on his part, has been prevented by the other party to the contract from performing labor under it, may recover damages based upon his prospective profits where they can be proven. — United States v. Behan,'110U. S. 338; Mueller v. Bethseda Min. Spring Co., 88 Mich. 390; 50 N. W. Eep. 319; Dr. Harter Medicine Co. v. Hop- kins, Sis Wis. 309; 63 N. W. Eep. 601; Boston v. Henderson, 92 Mich. 606; 62 N. W. Eep. 1020; Ramsey v. Holmes, etc., Co., 85 Wis. 174; 55 N. W.Eep. 391; Huse & Loomis Ice Co. ». Heinze, 102 Mo. 245; 14 S. W. Eep. 756; Allphin v. Working, 32 111. App. 178, affirmed in 24 N. E. Eep. 54; Lynch v. Sellers, 41 La. Ann. 376; 6 So. Eep. 561; Cameron v. White, 74 Wis. 425; 43 N. W. Eep. 155; Williams v. Island City, M. & M. Co., 25 Ore. 573; 37 Pac. Rep. 49; Lee v. Briggs, 99 Mich. 487; 58 N. W- Eep. 477; Farr v. Griffith, 9 Utah, 416; 36 Pac. Eep. 506; Bonifay v. Hassell, 100 Ala. 269; 14 So. Eep. 46; Fountaine v. Baxley, 90 Ga. 416; 17 S. B. Eep. 1015; Atkinson v. Morse, 63 Mich. 276; 29 N, W. Rep. 71JI. But anticipated profits, dependent on future contingencies, cannot be included in the dapiages. — Bergen o. New Orleans, 35 La. Ann. 523; O'Conner v. New York &. Y. L. I. Co., 28 N. Y. S. Eep. 544; 8 Mis. Rep. 243; Tennessee & C. E. R. Co. v. Danforth, 99 Ala. 331 ; 13 So. Eep. 51; Cahn v. W. U. Tel. Co., 46 Fed. Eep, 40; Montgomery Co. Union Agr. Soc. v. Harwood, 126 Ind. 440; 26 N. E. Eep. 182; Gunter v. Beard, 93 Ala, 227; 9 So, Eep. 389; Beano, Carleton, 58 Hun, 611; 12 N. Y. S. Eep. 619; Kenny v. Collier, 79 Ga. 743; 8 S. E. DAMAGES — TELEGRAPH COMPANY. 593 negli- [472] gently omitted to send it, and so caused great loss, to the plaintiffs, it was held that they could only recover nominal damages, because the defendant could not have contemplated any loss as he did not know what the telegram was about (r); and where rags were sent by railway in a damp condition without any notice to the company of the fact, and it was (r) Sanders v. Stnait, 16 L. J. 0. F. 682; [see in/Hi]. Rep. 58; Stone v. Rosenheim, 67 Md. 603; 10 Atl. Rep. 221, 307; Bern- stein V. Meech, 130 N. 7. 364; 29 N. E. Rep. 266; Texas Hex. Ry. Co. v, Douglass, 73 Tex. 326; 11 S. W. Rep. 333; Brown v. Sullivan, 71 Tex. 470; 10 S. W. Rep. 288. (r) This is also the rule in this country. — Baldwin v. V. S. Tel. Co., 45 N. Y. 744; Mackay v. W. TJ. Tel. Co., 16 Nev. 222; Candee v. W. U. Tel. Co., 34 Wis. 471; White v. W.XJ. tel. Co., 14 Fed. Rep. 710; U.S. Tel. Co. V. GUdersleeve, 29 Md. 233; Hughes v. "W. U. Tel. Co., 114 N. C. 70; 19 S. E. Rep. 100; W. U. Tel. Co. v. Wilson, 32 Fla. 627; 14 So. Rep. 1, overruling Western Union Tel. Co. v. Hyer, 22 Fla. 637; 1 So. Rep. 129; American Union Tel. Co. v. Fatman, 73 6a. 285; 54 Am. Rep. 877. See article by Seymour D. Thompson, 33 C. L. J. 147. A message, " Will you give one fifty for twenty-five hundred at Lon- don? Answer at once as I have only till night," was held not obscure or in cypher so as to exempt the company from liability for " errors in cypher or obscure messages." — Telegraph Co. v. Griswold, 37 Ohio St. 301. In Hart v. Western Union Telegraph C6. (66 Cai. 579; 24 Am. Law Reg. 320), the plaintiff delivered to the defendant the message "Buy bail barley falun; report by mail." The message was delivered as written, except that the word " bail " was changed to the word " bain." By the private cypher code of the receiver used by the plaintiff in the message, the word "bail" meant "one hundred tons,'' and the word "bain," two hundred and twenty-five tons. The word "bail" as transmitted along the wire was iftdicated by the following: , and the word "bain: " . Acting on the message received, the receiver bought lor plaintiff two hundred tons of barley. When the plaintiff discovered the fact he notified the defendant that one hundred tons had been bought in excess of that directed to be bought hy the original message, and asked the defendant what he should do with the surplus so purchased. Defend- ant refused to give any instruction in regard to it. Flaintifi thereupon sold the barley at the highest market rate, his loss on the extra one hun- dred tons being $429.82, tor which the action was brought. There was a 594 DAMAGES. proved that if delivered in their ordinary dry [473] con- dition no harm would have happened, it was held that condition printed on the blank upon which the message was sent exempt- ing the company from liability for mistakes or delays, etc., unless the message was repeated, and for this an additional charge was made. It was held in the first place that the condition was void. But there being evidence that the error resulting in the change of the word " ball," to " bain," was caused by a break in the electric current produced by atmospheric influences beyond defendant's control, the court said this was the turning question in the case, and remanded it for a new trial because it was not fairly submitted to the jury in the court below. Subsequently the court overruled the first point, and held that the regulation with reference to the repeating of messages was reasonable and valid. — Same case, 24: Am. Law Beg. 604., That a telegraph company will not be liable for the correct transmis- sion of a message beyond the amount received therefor unless repeated at an additional expense is held a reasonable regulation. — See Becker v. W. U. Tel. Co., 11 Neb. 87, and cases cited in 46 Am. Rep, 488; Western Union Tel. Co. v. Fenton, 52 Ind. 1; Young v. Tel. Co., 65 N. T. 163; Lasslter v. Tel. Co., 89 N. C. 334; Camp v. W. U. Tel. Co., 1 Mete. (Ky.) 164; Bartlett v. Telegraph Co., 62 Me. 209; Bedpath V. Tel. Co., 112 Mass. 71; Bresse v. V. S. Tel. Co. 31 How. 87; 8 Am. Rep. 626; Pass- more V. Western Union Tel. Co., 78 Pa. St. 238; Ellis v. American Tel. Co., 13 Allen, 236; U. S. Tel. Co. v. GUdersleeve, 29 Md. 232; 9 Am. Rep. 149; Waun v. West. Union, etc., Tel. Co., 37 Mo. 472. See also Clement v. W. U. Tel. Co., S. J. C. Mass., 24 Am. Law Reg. 328. A regulation that the company shall not be liable in damages unless the claim therefor is presented within sixty days has been held reason- able.— Wolf V. W. U., Tel. Co. 62 Pa. St. 83; Young v. W. U. Tel. Co., 65 N. Y. 163. A telegraph company cannot by contract relieve themselves from lia- bility for negligence.— Tel. Co. v. Griswold, 37 Ohio St. 301; Tyle* v. W. U. Tel. Co., 60 111. 421; True v. Int. S. Co., 60 Me. 9; W. U. Tel. Co. v. lilanchard, 68 Ga. 299. The negligence must be the proximate cause of the loss. — A telegraph company neglected to deliver a message sent appellant by his broker informing him of the purchase of stock on his account. The market declining heavily, and the broker hearing nothing from appellant sold out the stock at a great loss. Appellant claimed that if the message had been delivered he should have remitted a margin su£3cient to pre- vent the stock being sacrificed or have directed a sale at the first point of decline and sued the company for the loss of the sale. It was held that the negligence of the company was as to appellant's loss a causa remota for which he could not recover ; that the question as to what he would or might have done had the telegram been delivered was not a question of DAMAGES PERSONAL INJURIES. 595 the company were not liable as the damage was not a [^4] natural consequence of the delay in contemplation of the parties at the timie of making the contract (s). With respect to damages for personal injuries, the meas- ure is loss of time, expense incurred, pain and suffer- ing {i), and permanent injury causing pecuniary loss, as to Cs) Baldwin «. Ij. 0. & S. By. Oo., 9 Q. cases under Lord Campbell's Act. See B. D. 582. the case, supra. For damages under (t) Blake v. Midland By. Co., 18 Q. B. that Act, see Oh. VIL 93, at p. Ill, bnt this does not apply to fact, and the finding of the jury upon it was not conclusive. — Smith v. W. V. Tel. Co. (Ky. Ct. App.), Chicago Leg. News, Aug. 1, 1885. In Pennington v. W. TJ.'Tel. Co. (67 la. 631; 24 N. W^ Eep. 45; 25 Id. 838), plaintiffs agent telegraphed him an offer to buy apples at two dollars per barrel, bnt by the negligence of the agents of the telegraph company the telegram was not properly copied and the plaintifi took no notice of U, and afterwards the price of apples advanced and in purchasin. he was obliged to pay the advanced price. It was held in an action against the company for his loss that he conid only recover the amount paid for the telegram. (t) Personal Injuries. — In cases of personal injuries, a recovery may be had for the expenses incurred in effecting a cure. — Peoria Bridge Ass. V. Loomis, 20 111. 235; Memphis, etc., B. Co. v. Whitefleld, 44 Miss. 466; Oliver v. North Pac. Tr. Co., 3 Ore. 84; Goodno v. Oshkosh, 28 Wis. 300; Morris v. Chicago, etc., R. Co., 45 la. 29; Sheehan v. Edgar, €8 N. T. 631; Chicago v. Langlass, 66 III. 361 ; Hart v. Charlotte, C. & A. B. Co., 33 S. C. 427; 12 S. B. Rep. 9; Consolidated Coal Co. v. Hsenni, 146 lU. 614; 35 N. E. Bep. 162; City of Friend v. IngersoU, 39 Neb. 717; 58 N. W. Eep. 281. . Loss of time. — Indianapolis v. Gaston, 58 Ind. 225; Wadeo. Leroy, 20 How. 34; Chicago v. O'Brennan, 65 III- 160; Beardsley v. Swann, 4 McLean, 333; Walker v. Erie E. Co., 63 Barb. 260; Peoria, etc., Canal Co. V. Graham, 63 Pa. St. 290; Masterton v. Mount Vernon, 58 N. T. 391; Morris v. Chicago, etc., B. Co., 45 la. 29; Biepon v. Bittel, 80 Wis. 614; Campbell v. Wing, 6 Tex. Civ. App. 431; 24 S. W. Eep. 360; Car- penter c. Mexican Nat. E. Co., 39 Fed. Bep. 315; Bridger v. Asheville & S. B. Co., 27 S. C. 456; 3 S. B. Bep. 860; City of Greensborough v. McGibbony, 93 Ga. 672; 20 S. E. Bep. 37. Impaired capacity to labor. — George v. Haverhill, 110 Mass. 506; Hammond V. Mnkwa, 40 Wis. 36; Indianapolis v. Gaston, 58 Ind. 225; McLaughlin v. Corry, 77 Pa. St. 109; Collins d. Council Bluffs, 32 la. 325; Houston, etc., B. Co. v. Boehm, 57 Tex. 152; Greorgia Southern B. Co. o. Neel, 68 Ga. 609; Blackman v. Gardiner Bridge, 75 Me. 214; Saldana v, 38 596 DAMAGES. •which, it is said, that the amount awarded must not be an equivalent for the loss but some reasonable sum (u). (u) Aimsworth v. S. E. Ey. Co., 11 Jnr. 758; see Phillips v. L. & S. W. By. Co., mpra. Galveston, etc., By. Co., 43 Fed. Bep. 862; Davidson v. Soutbem Pac. Co., 44 Fed. Bep. 476; Campbell v. Fisher (Tex. Civ, App.), 24 S. W. Bep. 661 ; Gulf, W. T. & P. Ey. Co. v. Abbott (Tex. Civ. App,), 24 S. W. Bep. 299; Fordyce v. Withers, 1 Tex. Civ. App. 640; 20 S. W. Bep. 766; Seaboard Mfg. Co. v. Woodson, 98 Ala. 378; 11 So. Bep. 733; FlsherSt). Jansen, 128 III. 549; 21 N. E. Bep. 698; Ward v. Blackwood, 48 Ark. 396; 3S. W. Bep. 624. For physical.— Banson v. New Tork & Erie B. Co., 16 N. T. 416; Indianapolis «. Gaston, 58 Ind. 225; Goodno v. Oshkosh, 28 Wis. 300; Curtis V. Bochester, etc., B. Co., 20 Barb. 282; Peoria Bridge Ass. o. lioomis, 20 111. 235; Chicago v. Elzeman, 71 HI. 131; Pittsburg, etc., B. Co. V. Donahue, 70 Pa. St. 119; Mason v. Ellsworth, 32 Me. 271; Eowell V. Williams, 29 la. 217; Louisville & N. B. Co. v. Binion (Alabama), IS So. Bep. 75; City of Birmingham v. Lewis (Alabama), 9 So. Bep. 243; Bidenhour v. Kansas City Cable By. Co., 102 Mo. 270; 13 S. W. Bep. 889; 14 S. W. Bep. 760; Dirmeyer v. O'Heon, 39 La. Ann. 961; 3 So. Bep. 132; Kennon v. Gilmer, 131 U. S. 22; 9 S. Ct. Bep. 696; TownofNap- panee v. Buckman, 7 Ind. App. 361; 34 N. E. Bep. 609; Churchman «;. Kansas City, 44 Mo. App. 665; Chicago & A. B. Co. v. Fisher, 38 III. App. 33; Wabash W. By. Co. v. Morgan, 132 Ind. 430; 31 N. E. Bep. 661; 32 N. E. Bep. 85. And mental suffering.— Scott v. Montgomery, 96 Pa. St. 444; Stewart v^ Bipon, 38 Wis. 587; Masters v. Warren, 27 Conn. 293; Memphis, etc., B. Co. V. Whitefleld, 44 Miss. 466; Pean., etc., Canal Co. v. Graham, 63 Pa.^St. 290; Seger v. Barkhamsted, 22 Conn. 290; Cooper o. Mulling, 3& Ga. 152; Canning t). Williamstown, 1 Cush. 451; South, etc., Ala. B. Co. V. McLendon, 63 Ala. 266; Porter v. Hannibal, etc., E. Co., 71 Mo. 66; 36 Am. Bep. 454; Atchison, T. & S. F. B. Co. v. Mldgett (Kan. App.), 40 Pac. Bep. 995; City of Chicago v. McLean, 36 111. App. 273, affirmed in 24 N. E. Bep. 527; Hannibal & St. J. B. Co. v, Martin, 111 HI. 219; American Waterworks Co. v. Dougherty, 37 Neb. 373; 65 N. W. Bep. 1051; San Antonio & A. P. By. Co. v. Corley (Tex. Civ. App.), 26 S. W. Bep. 903; Schmitz v. St. Louis, etc.. By. Co., 119 Mo. 256; 24 S. W. Bep- 472; Townsend o. Briggs, 99 Cal. 481; 32 Pac. Bep. 307; Gallagher v. Bowie, 66 Tex. 266; 17 S. W. Bep. 407. And for future pain. — Fry v. Dubuque, etc., B. Co., 45 la. 416; Aaron V. Second Av. B. Co., 2 Daly, 127; South, etc., Ala. B. Co. v. McLendon, 63 Ala. 266; Sidekum v. Wabash, etc.. By. Co., 93 Mo. 400; 4 S. W. Bep. 701; Weiler v. Manhattan By. Co., 53 Hun, 372; 6 N. Y. S. Bep. 820; Heddles v. Chicago & N. W. By. Co., 77 Wis. 228; 46 N. W. Bep. 116; DAMAGES — PERSONAL INJURIES. 597 It is said that where it is impossible to estimate accur- ately the amount of damage done the defendant must suf- fer (v). (o) Leeds v. Amherst, 20 Bear. 239.— S. F. By. Co. v. Trott, 86 Tex. 412; 25 S. [Thus, actaal damages cannot be xe- W. Bep. 49; 25 S. W. Bep. 431; Wilcox v. covered for mental suffering cansed by Bichmond & D. B. Co., 62 Fed. Bep. 264 ; peril or fright, If anaccompanled by 3 C. C. A. 78 ; 8 (7. S. App. 118 ; Toaknm physical injary.— Atchison, T. & S. F. v. Dunn, 1 Tex. Civ. App. 624; 21 S. W. R. Co. V. McGlnnis,46 Kan. 109; 26 Pac Bep. 411; Chicago, B. I. & T. By. Co. v. Bep. 453; Summerfleld v. W. U. Tel. Co., Hitt (Xex.Civ. App.), 31 S. W. Rep. 1084.] WWls. 1;57ST.W. Bep. 973; Gnlf,C. & Ball V. Mabry, 91 Ga. 781; 18 S. E. Eep. 64; Johnson o. Northern Pac. B. Co., iJ Minn. 430; 60 N. W. Eep. 473; Propsom v. Leathern, 80 Wis. 608; 60 N. W. Bep. 686. Bat the injury must be permanent (Gorham «. Kansas City & S. By. Co., 113 Mo. 408; 20 S. W. Bep. 1060), and the suffering certain to follow- — Boss v. Kansas City, 48 Mo. App. 440; "Washington & G. B. Co. v. Tobriner, 147 U. S. 571; 13 S. Ct. Eep. 657; Union Pac. By. Co. v. Jones, 49 Fed. Bep. 343; 4 U. S. App. 115; 1 C. C. A. 282. And in some cases it has been held that a recovery may be had lor the jright caused by the peril or danger incurred. — Cooper ■». MuUins, 30 Ga. 152; Masters v. Warren, 27 Conn. 293; Oliver c. LaValle, 36 Wis. 198; Sherwood v. Chicago & W. M. Ry. Co., 82 Mich. 374; 46 N. W. Eep. 773; Stutz V. Chicago & N. W. By. Co., 73 Wis. 147; 40 N. W. Eep. 653. In an actiou against a physician for an injury to a wife in deliver- ing her of a child, it was held damages might be given for loss of time necessary to effect a cure, the expenses of employing another physician, ^nd also the mental suffering of the wife produced by the destruction of the chUd.— Smith v. Overby, 30 Ga. 241. But in Bovee v. Danville (63 Vt. 183), a suit for the recovery of dam- ages for injuries sustained by reason of a defective highway resulting in a miscarriage and loss of twins, a charge of the court " if this mis- carriage was brought about by this injury, any suffering occasioned thereby in injury to her feelings should be compensated," was held error as likely to mislead the jury. See Augusta & S. E. Co. v. Eandall, So Ga. 297; 11 S. E. Bep. 706. In an action for breach of contract damages for wounded feelings or mental anxiety where there is no physical injury are not generally allowed. — Trigge v. St. Louis, etc., E. Co., 74 Mo. 147; 41 Am. Eep. 306. In a late case, Blankeny v. W. U. Tel. Co., S. C. Ind. (22 C. L. J. 147), where damages were claimed against the defendant company for failure to deliver message whereby he missed an opportunity of attending his brother's funeral, the court say: — " No case can be found where a person has been allowed to recover tiamages for a shock, injury or outrage to the feelings, unaccompanied 598 DAMAGES. If some damage must have happened to the plaintiff, irrespective of the defendant's act, that must be deducted by an injury to the person. A different doctrine would lead to absurd and curious litigation. Take for (ixample a railroa^ collision ; It is proper that every passenger on the train who is personally injured should re- cover for the negligence, but shall every one who was frightened by the collision, maintain an action against the company? " And in (The Gulf C. & Santa Fe Ey. Co. v. Levy, 59 Tex. 663) a similar case, the court say: " The English cases hold substantially that a person to whom a message is sent cannot maintain an action, notwithstanding pecuniary Injury may result to him by the failure ol a telegraph company correctly or within a reasonable time to transmit it unless the sender sus- tains to the person to whom the message is sent the relation of agent through which privity of contract is established. — Clayford v. U. K. Electric Tel. Co., i Q. B. 706. This doctrine has not been accepted by the courts of this country, but none of them have gone to the extent of hold- ing that a person to whom a message is sent may maintain an action for the negligence of the telegraph company without averment and proof of some actual pecuniary injury sustained thereby." (This case overruled Helle V. W. TJ. Tel. Co., 65 Tex. 310, so far as it held that an action for mental suffering alone could be maintained.) Evidence. — In such cases evidence of the wealth of the defendant or poverty of the plaintiff is not generally admissible in aggravation of dam- ages. — Moody V. Osgood, 50 Barb. 628 ; Pittsburgh, etc., E. Co. v. Powers, 74 111, 311; Barbour County v. Horn, 48 Ala, 666; Macon, etc., E. Co. V. Winn, 26 Ga. 269; Missouri Pac. E. Co. v. Lyde, 67 Tex. 505; Griffith V. Utica & M. E. Co., 63 Hun, 626; 17 N. Y. S. Eep. 692; Beck v. Dowell, 40 Mo. App. tl; Clark o. Fairley, 30 Mo. App. 336. But plaintiff may show the amount of his earnings prior to the acci- dent.— Ehrgott V. New York, 96 N. Y. 264; Nash v. Sharpe, 19 Hun, 865; Hanover E. Co. v. Coyle, 55 Pa. St. 396; St. Louis S. W. Ey. Co. v. Dob- bins, 60 Ark. 481; 30 S. W. Eep. 887; Sias v. Village of Eeed City (Michigan), 61 N. W. Eep. 502; Alabama G. S. E. Co. v. Frazier, 93 Ala. 45; 9 So. Eep. 303; Palmer v. Conant, 68 Hun, 333; H N. Y. S. Eep. 917; Coots V. District of Columbia, 7 Mackey, 277; Griveaud v. St. Louis C. & W. Ey. Co., 33 Mo. App. 468; Louisville, N. A. & C. By. Co. v. Frawley, 110 Ind. 18; 9 N. E. Eep. 594; Gardner v. Detroit St. By. Co., 99 Mich. 182; 68 N. W. Eep. 49; Miller v. Manhattan Ey. Co., 73 Hun, 512; 26 N. Y. S. Rep. 162. And in an action to recover for permanent personal injuries evidence of the plaintiff 's qualifications, income and habits is admissible to show his prospective earnings or savings. — Simonson v. Chicago, etc., E. Co., 49 la. 87. A parent, guardian or master may recover damages for loss of services of the child, ward or servant, and the expenses incurred in curing DAMAGES — PEESONAL INJURIES. 599 from the whole amount of damage done, for the defendant is only liable for the consequences of his own act (x). The defendant cannot, as we have seen, escape liability by showing that the same damage would have happened without his act, if it is, in fact, his act which had done the damage ; but if he can show that some of the damage which has happened was not done by him but entirely by some- [475] thing or somebody else beyond his control, the damages may be apportioned (p) — that is to sgy, that the deiendant ia liable for the consequences of bis own acts. [476] In Smith v. Dobson (z) the plaintiff's barge, too heavily laden, was flooded first by a steamer called the (a) Woikman v. Great Northern Ey. Olty of Jackson, 92 Mich. 197; 52 ST. W. Co., 32 L. J. Q. B. 279.— [See ShotweUi). Eep. 1075.] Dodge, 8 Wash. 337; 36 Fac. Bep. 251; (y) fTltro-phosphate Co. v. London A. J. Anderson Electric Co. v. Clebnrne and St. Eatherine Docks, L. E. 9 Ch. D. W. I. & h. Co. (Tex. Civ. App), 27 S. 503; see also Smith v. Dobson, 3 M. & G. W. Bep. 504. As predisposition to 59 ; Baisin «. Mitchell, 9 C. & F. 813. disease.— Woodard tyOlty of Boscobel, (a) Supra. 84 Wis. 226; 64 N. W. Eep. 332; Fuller v. them. — Shearman & Eedfleld, § 608 ; Oakland E. Co. v. Fielding, 48 Pa. St. 323; Karr v. Farks, H Cal. 46. The husband for loss of services of his wife and expenses incurred in effecting a cure. — Sanf ord v. Augusta, 32 Me. 536 ; Chicago a. Hoy, 75 III. 531; Holmes v: Fon du Lac, 42 Wis. 284; Metropolitan St. R. Co. v. Johnson, 91 Ga. 466; 18 S. E. Bep. 816; St. Louis S. W. Ey. Co. V. Hen- son, 58 Fed. Eep. 531; 7 C. C. A. 349; Hazard Powder Co. v. Volger, 68 Fed. Eep. 152; 7 C. C. A. 130; Hawkins v. Front St. Cable Ey. Co., 3 Wash. St. 592; 28 Pac. Eep. 1021; Henry v. Klopfer, 147 Pa. St. 178; 23 Atl. Eep. 338; 29 W. N C. 331 ; Readdy v. Borough of Shannon, 137 Pa. St. 98; 20 Atl. Eep. 396. The parent can recover nothing on account of the child's sufEerings. — Ot'vTando. Fielding, 48 Pa. St. 323; Stewart v. Eipon, 38 Wis. 684. Nor can the husband on account of the wife's. — Hyatt v, Adams, 16 Mich. 180; Euder v. Purdy, 41 111. 279; contra, Gulf, C.,&. S. F. Ey. Co. V. Glenk (Tex. Civ. App.), 30 S. W. Eep. 278; Campbell ». Harris, 4 Tex. Civ. App. 636; 23 S. W. Eep. 35; Gulf, C. & S. F. Ey. Co. v. Box, 81 Tex. 670; 17 S. W. Eep. 375. He can not recover for mental distress on account of her sufferings. — Hyatt V. Adams, 16 Mich. 180. See Eeyes v. Minneapolis & St. L. By. Co., 36 Minn. 290; 30 N. W. Eep. 888. Nor can the parent in consequence of the child's sufferings. — 3 Sntha • erland on Damages, p. 725. 600 DAUAOES. Bamona, [477] and then by the defendants' , the Water Lily. The whole damage caused by the two steamers was £80. The jury found a verdict for £20, reducing the amount partly because of the plaintiff's negligence, and partly be- cause of the Eamona's negligence. The Court upheld the verdict on application by the defendants to set it aside, and said the jury might be justified in reducing the damages^ It does not appear what would have been the view of the Court if the plaintiff had moved for a new trial in order to increase the damages. It is pointed out in a note that the loss would not have happened from the swell caused by the Bamona alone, and, therefore, that vessel was not liable at all;, and that the jury having found that the Water Lily was only liable for part of the damage, as the swell of the Bamona had helped to swamp the barge, the result was that the plaintiff could not recover an adequate indemnity for his loss. In the course of the argument in Thorogood v. [478] Bryan (a), Cresswell, J.,askedif twoomnibuses were racing, and one of them ran over a man who was crossing a road, would he not have a remedy against either? It seems that the answer to that question might depend upon the cir- cumstances. If the man would have escaped one omnibus and been uninjured, but the other omnibus ran over him as he was escaping from the first, then, I think it is clear that either should be liable for the whole damage ; for if the first had not made the man run the other would not have knocked him down, and if the other had not been racing the man would have escaped. But, I think, if the first omnibus ran over the man, and the only way in which the act of the second contributed to the accident was by encouraging the other to race, it might be contended that this is too remotely connected with the injury. But, upon the other hand, if two persons agree together to do an act^ the natural conse- quence of which may be to injure others, each would appear (a) Thorogood v. Bryan, 8 O. B. 121. DAMAGES PERSONAL INJOEIES. 601 upon principle to be responsible for the acts of the other, which are done in carrying out the common design. Of course, if two men agree to commit a tort intentionally, as if two omnibus drivers agreed to run over a particular man, that would be a conspiracy, but being an intentional act would not be negligence (b). ' Upon the principle that the defendant is only liable for the damages caused by his own acts, and not for those which are separajile from them as being caused by the plaintiff or a third party, the defendant is not liable for subsequent dami^e which is caused by the plaintiff neglecting to avoid, as far as a reasonable man should do, the effects of the defendant's negligence (c). The plaintiff may recover in America, at all events, for damages caused by the defendant's negligence before the plaintiff by his own negligence increased the damage ((2). [479] Where the injury done to the plaintiff has ne- cessitated expenses, and the plaintiff has become liable to some third party, he may recover damages to cover his liability (e). Formerly money paid to a physician was not recoverable, there being only a moral obligation to pay {/); but now, under the 21 & 22 Vict. c. 90, s. 31, registered physicians (&) Deflnitlon, ante, p. 1. made by defendant, not pnt oat by (c) See Baldwin v. tT. S. Tel. Co., 45 plaintlfl. The facts of this case aie not N. T. 744, and the other cases cited in stated).— [See Georgia B. & B. Co. v. Shearman, s. S98, note (2).— [See, also. Berry, 78 Ga. 744; 4 S. E. Bep. 10.] Faciflc Exp. Co.v. Darnell (Texas), 6 S. (e) Bandall v. Baper, 27 L. J. Q. B. W. Bep. 765 ; Dnrgin v. Neal, 82 Oal. 599 ; 266 ; E. B. & E. 84 ; Spark v. Heslop, 28 L. 33 Fac. Bep. 133.] ' J. Q. B. 197; Mason v. Barker, 1 0. & K. (({) Stebbms v. Central Vermont By. 160. ^'., 54 Vt. 464; 41 Amer. Bep. 859 (fire (/) Dixon v. Bell, Starkle, 287. (/) In America the rale Is well settled, that the expenses of medical attention are recoverable in sach actions. — Lntcher & Moore Lbr. Co. «. Dyson (Tex. Civ. App.), 30 S. W. Rep. 61; Bobinson v. Simpson, 8 Honst. 398; 32 AU. Eep. 287; Whelan v. New York, etc., E. Co., 38 Fed. Bep. IS; Donnelly v. Hafschmidt, 79 Cal. 74;' 21 Fac. Bep. 646; Hulehan V. Green Bay, etc., B. Co., 68 Wis. 620; 32 N. W. Bep. 629; Kendall v. City of^Ibia, 73 la. 241 ; 34 N. W. Bep. 833 ; Kinney v. Folkerta, 84 Micb. 602 DAMAGES. may recover their fees unless the college has passed a bylaw to prevent them {g). The plaintiff is entitled to such prospective damages as will to a reasonable certainty a,rise (h) and the same has been held in respect of injury to real property («). Where a plaintiflF is disabled for life the measure of damages is not to be taken from the amount of an annuity which would replace the annual salary of the deceased, for it does not follow that he would have retained his situation for the whole of his life ; but a reasonable sum must be given' (A;). In the case of a railway accident, it was held that there was a contract to carry a man's wife safely, and that she being injured, and her husband sustaining by such breach of contract some pecuniary damage, his right of action survived to his executrix, who was the wife, and she could [480] recover therefore for his loss by the injuries which she had sustained (?). In cases of injuries to property, the measure of damages is the cost of reinstating the property, if the plaintiff as a Ig) Gibbon v. Budd, 32 L. J. Ex. 182. (i) Lamb v. Walker, L. K. 3 Q. B. D. (fej Bichardson «;. Mellish,2Bing.240; 389; Blackbonse v. Bonomi, 9 H. L. C. Ingram v. LawBOn, 8 So. 471; Fetter v. 603. Beal, 1 liOrd Baym. 339; Goslin v. Oorey, (£) Bapson v. Onbltt, Car. & M. 61. 8 So. M. B. 21 ; Gregory v. WilllamB, 1 0. (I) Potter v. Metropolitan By. Co., 32 & E. 568; [see infl-a]. L. T. N. S. 38 (Ex. Ob.). 616 ; 48 N. W. Bep. 283 ; City of Atchison v. Bosa, 43 Ran. 606 ; 23 Fac. Bep. 661; Gulf, C. & S. F. By. Co. v. Campbell, 76 Tex. 174; 13 S. W. Bep. 19. (A) Secord v. St. Paul, etc., B. Co., 18 Fed. Bep. 221; Mackoy v. Mis- souri Pac. By. Co., 18 Fed. Rep. 236; Ward Co. v. New Orleans City E. Co., 35 La. Ann. 202; Wallace o. Wilmington & N. B. Co., 8 Houst. 629; 18 Atl. Bep. 818; Howard Oil Co. v. Davis, 76 Tex. 630; 13 S. W. Bep. 630; Townsend v. City of Faola, 41 Kan. 691; 21 Pac. Bep. 596; 3 Suth- erland on Damages, p. 722. In Houston, etc., B. Co. v. Willie (63 Tex. 318), an action of damages tor personal injuries producing disability, it was held that the measure of damages was such an amount as would purchase an annuity equal to the interest on the difference between what the plaintiff could earn before and what he could earn after the injury, and not such a principal sum as would produce such interest. DAMAGES — PERSONAL INJURIES. 603 reasonable man would have reinstated the property ; but if not, then the depreciation in the value is the true measure (»»). For damages in carriers' cases, see Chapter III. s. 8, p. 175, "Carriers;" and for damages under Lord Camp- bell's Act, see Chapter VII., " Lord Campbell's Act." Joint tortfeasors may in general be sued jointly or sep- arately (m), so if the co-proprietors of a coach intrust the driving to one of their number all will be responsible for his negligence (o); and if two omnibuses are racing, and one of them runs over a man, he may recover against either proprietor {p). (m) Shearman, s. 603; citing UcGoire 0. B. 637; Sonthwestem T. & T. Co. v. V. Grant, 1 Dntch. 356; Lnkln v. Godsall, Ciank (Tex. Civ. App.), 27 S. W. Eep. Feake'B Add. IS; Honsee v. Hammond, 38. See also Webb's Pollock on Torts, 39 Barb. 89; Terry v. New York, 8 Bosw. p. 230, ed. n., where the American cases 401; Vhitbeok v. N. Y. Central By. Co., are collated.] 36 Barb. 641. (o) Moreton v. Hardern, 4 B. & C. 223; (») Addison on Torts, 5th ed., by L. bnt as to contribntion, see Pearson v. W. Uave, Q. C. ; (1 Bates' Pleadings, 67, Skelton, infra. 58].— [See Galveston, H. & S. A. By. Co. (p) Thorogood v. Bryan, 8 O. B. 121, V. CoskeU, BXex. Cir. App. 160;26 S. W. per Oresswell, J., during argument, Bep. 486; Wolff Mfg. Co. v. Wilson, 46 mpra. lU. App. 361; Booth v. Batte, 21 Can. S. (m) Soathern Marble Co. v. Darnell (Georgia), 21 S. E. Bep. 531; LonlsTllle, N. A. & C. By. Co. v. Sparks (Ind. App.), 40 N. E. Bep. 546; Antenrleth v. St. Louis & S. F. B. Co., 36 Mo. App. 254; Pacific Exp. Co. V. Lasker B. E. Assoc, 81 Tex. 81; 1« S. W. Bep. 792; Pacific Express Co. V. Smith (Texas), 16 S. W. Bep. 998; Langfeldtv. McGrath, 33 Ul. App. 158; Ft. ViTorth & D. C. By. Co. v. Hogsett, 67 Tex. 685; 4 S. W. Bep. 365; Owens v. Missouri Pac. By. Co., 67 Tex. 679; 4 S. W. Bep. 693; Baldwin v. Chicago, etc.. By. Co., 35 Minn. 354. Where plaintiff's property was destroyed by fire by the negligence of defendant company, the damages were the value of the property at the time it was destroyed, with interest upon it from that time to the time of the judgment. — Farrott v. Housatonic B. Co., 47 Conn. 575. In an action for injury to real estate by blasting, the plaintiff's mental anxiety in relation to his personal safety and that ot his family is not, in the absence of personal injury, an element of damage (Wyman v. Leavitt, 71 Me. 227; 36 Am. Bep. 303); and one entitled to damages for being deprived of lateral support for his land, designed for a burial place, was held not entitled to have an injury to his feelings considered when defendant intended no injury though grossly careless. — White v. Dresser, 136 Mass. 160; 46 Am. Bep. 454. 604 . DAMAGES. So if several persons are jointly bound to perform a duty they are jointly and severally liable for omitting to perform it, or for performing it negligently (q). [481] In trespass each tortfeasor is liable for the whole of the damages (r), and there can be no contribu- tion ; for if a plaintiff recovers judgment against two tort- feasors, and levies the whole damages upon one of them, he has no claim for a moiety from the other (s). So also in negligence, if two persons are engaged in doing a negligent act, they may be sued jointly, and they are jointly and separately liable for the whole of the damages (t). It should be observed that the rule that one torti^easor cannot recover contribution against another only applies where such tortfeasor knew that he was doing something illegal (m). So where a coach was driven negligently by the servant of the proprietors, and a person whose horse was injured bi;ought an action agamst one proprietor and recovered, and that proprietor brought an action against one of his co-proprietbrs, it was held that the first proprietor was only a tortfeasor by inference of law, and therefore could have recovered (a;). So also the rule does not apply where one person has employed another to do an act not unlawful in itself, and has indemnified him (y). (q) Fergason v. Earl of Klnnonl, 9 AdamBon v. Jerris, 1 Blng. 72 ; Betts «. 01. & F. 251. Gibbons, 2 A. & B. 67 ; [1 Chltty on Flead- (r) Hnme v. Oldacre, 1 Stark. 352. ings, 47, note, 16th Amer. Ed.]. (s) Merreweather v. Klxan, 8 T. E. (sc) Pearson v. Skelton, 1. & M. W. SOt 186 ; [1 Chitty on Pleadings, 17, note, 16th There was a non-suit, becanse being a Amer. Ed.]. ' partnership matter, the remedy was In («) Gray v. PnUen, 6 B. & S. 790; Steel equity.— [See Printup v. Patton, 91 Ga. V. Lester, L. K. 3 0. P. D. 121; il L. J. O. 422; 18 S. E. Eep. 311; Dillingham v. ^- *8. Crank, (Texas), 27 8. W. Eep. 93]. (a) Merreweather v. Nixan, supra; ly) Merreweather v. Nlxan, mipra. TABLE OF CITATIONS. BeferenceB are to Pages. Aaron v. Second Are. B. Co., 596. A. & N. E. E. Co. V. Bailey, 78, 519. Abbe V. Bood, 436. Abbett V. Chicago, etc., B. Co., 60. Abbett V. Johnson Co., 136, 371. Abbttt V. Lake Biie & W. B. Co., 506. . Abbott V. Freeman^ 390, 624. Abbott i>. Jackson, 106. Abbot V. McCadden, 652, Abbott V. Macfle, 168. Abbott V. B. B. Co., 93, 96. Abbro «>. Jaqnlth, 252. Abell V. Eallroad Co., 387. Abrams v. Milwaukee, etc., E. Co. 345. , Ackei V. Anderson Co., 35. Aokerly v. White, 107. Ackermanti. Halsey, 325. Ackettv. Lansing, 280. Acton V. Blundell, 96. Adair «. Brimmer, 263. Adams v. Barrett, 548. Adams v. Clem, 417. Adams ». Dnrham & TH. E. Co., 96. Adams v. First PJain Bank, 434. Adams v. Fletcher, 102. Adams v. Hall, 133. Adams v. Lancashire & Yorkshire By. Co., 401, 479, 591. Adams v. Nelson, 263. Adams ». Nightingale, 238, 243. Adams V. New York, L. E. & W. B. Co., 61. Adams v. Oshkosh, 318. Adams V. Spangler, 453. Adams V. Stewart, 422. Adams v. Wiscasset, 136. Adams v. Yonng, 46. Adamson v. Jerris, 604. Adams Bxpress Co. v. Harris, 347. Adams Express Co. v Hoetng, 347. . Adams Express Co. v. Holmes, 347: Adams Express Co. v. Jackson, 337. Adams Express Co. v. Stettaners, 346. Addison onTosis, 5th ed., 125, 468,607, 588, 603. ADDISON ON OONTBACTS, 266. Adyeii. Fenilletean, 263. ^tna Ins: Co. v. Alton City Bank, 443. Agnew V. Cornnna, 143. Agnew V. The Contra Costa, 351. Agrell V. L. N. W.Ky. Co., 363. Ahem v. Oregon, T. & T. Co., 32. Ahem v. Steel. 106. Aiken v. Frankford, etc., E. Co., 376. A. J. Anderson Electric Co. v. Cleburne, W. I. &L.Co.,699. Akron v. Chamberlain Co., 302. Alabama, Connellsville C. & I. Co. «. Pitts, S52. Alabama, etc.,E. Co. v. Hawk, 376. Alabama G..S. B. Co, t?. Arnold, 34, 49, 395. Alabama 6, S. B. Co. v. Chapman, 34, 61. Alabama G. S. K. Co. v. Dobbs, 618. Alabama 6. S. B. Co. v. Frazier, 698. Alabama G. S. B. Co. v. Harris, 208. Alabama G. 8. B. Co. v. Hill, 373. Alabama G. S. B. Co. v. Little, »46. Alabama G. 8. B. Co. ':;. Thomas, 344, 362& Alabama Midland By, Co. v. Martin, 224. Alabama &' Y. By. Co. v. Davis, 509. Alamango v, Albany Connty Supervis- ors, 446: ' ^ Alair B. Northern Pac. B. Co., 346. Alaska Treadwell Gold Min. Co. v. Whelan, 466. Albert v. State, 73, 103, 278, 538. Alberts V. Vernpn, 319. Albritten v. Mayor, etc., Huntsville, 136. Albertson v, Eeokuk, etc., B. Co., 518. Alcorn o. Sadler, 96. Alden v. Minneapolis, 94, 302. Aldrich v. The Boston, etc., B. Co., 341. Aldrich ». Wright. 80. Aldrldge v. G. W. By'. Co.. 343, 347, 359. Alexander D. BigBaplds, 307. Alexander v. Hnmber, 2. Alexanders. Mandeville, 71. Alexander v. Nepessing Bd. Co., 386. Alexander v. Oahkosh, 480. Alexander v. Bicdmond & D. B. Co., 500. Alexander v. Town of New Castle, 38. Alexander v. Uni ted States, 97. Alexandria & F. B. Co. v. Berndon, 395. Alexandria M. & E. Co. v. Painter, 472. Alexandria & E. Co. v. Brown, 371, 372. A. L. & J. J. Beynolds Co. v. Third Ave. E. Co., 465. AUday v. Great W. By. Co., 343. Alleghany City v. Zimmerman, 29. Allen V. City of Chippewa Falls, 303. Allen V. City of Boston, 305. Allen V. Carter, 449. Allen V. Clark, 438. Allen V. Hayward, 220, 221, Allen V. Mrk, 454. Allen !). L. & S. W. By., 203. Allen V. Merchants' Bank, 443, 462. Allen V. Pennsylvania By. Co., 60O. Allen V. Pittsburgh, etc., B. Oo,,666, Allen V. Texas & P. By. Co., 518. Allentown Bank v. Bex, 440. Allerton Packing Co. v. Egan, 494. Allis V. Columbia University, 480. (605) 606 TABLE OF CITATIONS. Beferences are to Pages. AlUson V. Bank, 518. Allison V, Bayuer, 438, Allison V. The Western, etc., E. Co., 289. Allison Mfg. Go. V. McCormlck, S2i. Alperin v. Karle, 107. Allphin V. Working, 692. AUyn V. Boston & Albany E. Co., 50. Alston V. Grant, 101. Althoif V. WoUa, 212, 571. Alton V. Midland By. Co., 368, 369. Altnowt). Sibley, 137. Altoona v. Lotz, 483. Amboch v. Baltimore & O. B. Co., 34S. Ambrose v. McDonald, 437. Am. Dlst. Tel. Co. v. Walker, 59. American Express Co. v. Sands, 346. American Union Tel. Co. e. Fatman, 593. American Water Works Co. v. Dough- erty, 596. American v. Eldrldge, 304. Ames V. Jordan, 214. Ames V. Union By. Co., 368. Ames V. Mobile & O. B. Co., 539. Anchor Line v. Dator, 346. Anderied v. Bailroad Co., 339. Anderson v. Chicago, etc., B. Co., 603, 543, 644. Anderson v. Chicago, B. & Q. B. Co., 471. Anderson v. City of Wilmington, 301. Anderson «. Dickie, 82. Anderson v. Unndee State Bank, 443. Anderson v, London & N. West. By. Co., 336. Anderson v. Oppenheimer, 83, 101. Andernon v. Scholey, 393. Anderson «. Scully, 77. Anderson v. The Ashebrooke, 491. Andbrsoh's Die. OF Law, 1. Andrews v. Boedeoier, 214. Andrews v. Chicago, etc.. By. Co., 563. Andrews v. Capitol, etc., E. Co., 377. Andrews v. Ft. Worth & D. C. By. Co., 365. Andrews v. Handley, 439, 430. Andrews v. Mason City & Ft. D. B. Co., 32. Andrews v. Schmidt, 266. Andrist v. Union F. Ey. Oo. , 60. ANGXLI. ON CABKIEBS, 338, 346. AII6EI.L & AHE8 ON COEF., 293, 324, 325, 326. Angus & Co. D. Dalton, 6, 7, 11, 66, 67, 68, 69, 214, 271. Angus V. Lee, 71. Annapolis, etc., E. Oo. v. Baldwin, 112. Annlston & A. B. Co. v. Ledbetter, S40. Antenrleth v. St. L. & S. F. E. Co., 603. Appeal of Dickinson, 264. Appeal of Fesmire, 262. Appeal of Hatch, 262. Appeal of Hele, 264. Apple V. Board Corais. Marion County, 478. Appleby v. Franklin, 548, 649. Appleby v. State, 463. Apsey V. Detroit, L. &. N. E. Co., 488. Arcade Hotel Co. v. Wiatt, 414, 417. ^ Archer v. Ft. Wayne & E. By. Co., 377. Arctic Fire Ins. Co. v. Austin, 216, 491, 512. Arden v. Goodacre, 587. Ardson v. Eastern Ey., 394. Argus V. Sturgis, 314. ArU». Chicago, etc., E. Co., 505. Arkansas Tel. Co. v. Batteree, 489. Armendalz v. Stillman, 27. Armistead v. Fuller, 413. Armstrong v. Ackley, 322. Armstrong v. Chicago, etc., By. Co., 348. Armstrong v. Craig, 429. Armstrong v. Hurst, 437. Armstrong v. Midbury, 289. Armstrong v. L. & T. Ey. Co., 606, 507. Armsworth v. S. E. By. Co., 546, 696. Armstrong v. United States Exp. Co., 344. Arnold v. Cheque Bank, 441. Arnold ». Norton, 127. Arnold v. Scholfleld, 346. Arrowsmith v. Nashville & D. E. Co., 372. Arthur ». St. Paul & D. Ey. Co., Minn., 840. Aitnsy V. Missouri Fac. By. Co., 602. Artz V. Chicago, etc., B. Co., 604. Arymane. Marshalltown,322. Ashby V. White, 446, 509. Ashenden v. L. B. & S. G. By. Co., 343. Ashley v. White, 507. A8hmore«. Penn. E. Co., 344. Ashtouw. Detroit City Ey. Co., 489. Aspern v. Churchill, 90, Aston's Estate, 266. Aston V. Heaven, 393. Aston V. Kewton, 317. Aston V. Nolan, 8, 218. Acaton V. Norfolk & G. E. Co., 95. Atchison, etc., E. Co. v. Bradshaw, 119. Atchison, etc., B. Co. v. Butcher, 394. Atchison, etc., E. Co. v. Cash, 112, 122. Atchison, etc.,E. Go. v. Cochran, 360. Atchison, etc., B. Co. v. Fillhan,464. Atchison, etc., E. Co. v. Fllnn, 513. Atchison, etc., B. Co. v. Frier, 373. Atchison, etc., B. Co, v. Grant, 346, 364, 381. Atchison, etc., E. Co, v. GrifBs, 113, Atchison, etc.,B. Co. v. Hague, 502. Atchison, etc., E. Co, v. Hughes, 546. Atchison, etc., B. Co. v. Lawler, 344, 369. Atchison, etc., E. Co. v. Lindley, 384. Atchison, etc., B. Co, v. McGlnnis, 597. Atchison, etc, B. Co. v. Mldgett, 494, 596, Atchison, etc., B. Co, v. Eandall, 205. Atchison, etc., E. Co. t;, Boach, 3I-.6. Atchison, etc., E. Co. v. Shaft, 116, 119. Atchison, etc., B. Oo. v. Smith, 514, 620, Atchison, etc.,E. Oo. v. Walton, 628. Atchison, etc., E. Go. «. Washburn, 344. Atchison, etc., B. Co. v. Weber, 643. Atchison, etc., B. Co. v. Townsend, 505, Atchison, etc., E. Co. v. Wilson, 661, Atkinson v. Abraham, 489. Atkinson v. Atlantic, etc., E. Go., 690. Atkinson v. Goodrich Transportation Co., 38, 46. Atkinson v. Morse, 692. Atkinson v. New Castle Water Works 289, 293, 448. Atlanta v. Fardne, 306. Atlanta & Air Line By, Co, v. Gravitt, 614, 653. Atlanta Cotton Seed Oil Mills v. GofEey, 72, 74, 288, Atlanta, etc., B. Oo. v. Ayers, 463, 491, 540. Atlanta, etc., B. Go. v. Hudson, 122, Atlanta, etc., B. Co, v. Leach, 484. Atlanta, etc., E. Go. v. Tenable, 656. TABLE OF CITATIONS. 607 References are to Pages. Atlanta, etc., B. Co., v. Wyley, 463, 5S7. Atlanta, etc., K. Co. v. Dickinson, 379. Attorney- Gen. v. Dixie, 255. Attorney-General v. Ely, 139. Attorney-General v. Boyal College of Physicians, 120. Attorney-Gen. v. Slddon, 210. Atrops V. Costello, S43, 611, S52. Atwood V. Atwater, 451. Atwood V. City o( Bangor, 801. Atwood r. Flak, 518. Atwater v, Lowe, 2S3. Atwater v. Town ol Veteran, 2. Angosta, etc.. By. Co. v. Glover, 551. Angnsta v. Haters, 321. AagQBta, etc., Q. Co. v. UcElmnrry, 163. Augnsta, etc., B. Co. v. Bandall, 597. Angnsta Factory v. Davis, 515. Anrora Cotton Mills v. Ogbert, 179. Aurora c. Dale, 315. Anrora v. Hillman, 313. Anrora v. Parks, 311. Anstin t>. Gt. Western By. Co., 12, 368, 370, 371. Anstin V. Hndson Blver B. Co., 8. Anstin v. Nelson, 430. Anstin ft N. W. B. Co. v. Beatty, 485. Averltt V. Hnirell, 81. Aydes «. Sontbeastern By, Co., 168. Ayer v. City of Kdrwich, 142. Ayres o. Hammondsport, 311. Ayres v. Bnssell, 123. B. Babbitt V. Bnmpns, 428. Bach V. BaUard, 435. Backhouse v. Bonomi, 9. Kabcock V. Brown, 430. Babcock v. Chicago & Northwestern £. Co., 88. Rabcock v. Fltcbbnrg B. Co., 88. Bacon v. Baltimore & Potomac B. Co., 471. Bacon v. Boston, 140. Bacon v. Delaware, etc., B. Co., 375. Bacheller v Pinkham, 252. Baggage v. Powers, 106. BagnaU v. L. & N. W. By. Co., 99. J!ailey v. Lawrence Co., 136, 115. Bailiffs of Bomney Harsh v. Trinity Honse, 28. Baird r. Daley, 60. Baird v. Shipman, 252. Baird v. Vangban, 284. Baker v. Boroogh of North Bast, 110. Baker v. Bonlton, 535. BHker v. Bower, ^, Baker v. Chicago, U. & St. P. By. Co., 113. Baker V. Fehr, 174: Raker c. Flint A P. H. B. Co., 503. Baker v. Lonlsvllle & N. B. Co., 538. Baker c. Madison, 307. Baker v. Pennsylvania Co., 14. Raker v. Portland, 39. Raker v. Bailroad Co., 351. liakerv. State, 450. i. Baird, 513. Ball t>. El Paso, 315. Ball o. Mabry, S^. Ball V. Nye, 98, 275. Ball V. Wabash, etc.. By. Co., 341. Ballard v, Tomlinson, 98. Ballentine v. North Mlssonri B. Co., 337. Ralls V. Woodward, 319. Baltimore v. O'Donnell, 292. Baltimore v. Pendleton, 140. Baltimore City Passenger By. Co. v. Kemp, 44. Baltimore v. Beaney, 8. lialiimore, etc., B. Co. v. Boteler, 503. Baltimore, etc., B. Co. v. Dorsey, 88. lialtimore, etc., B. Co. v. Fryer, 618. Baltimore, etc., B. Co. v. Kane, 63, 375. Baltimore, etc., B. Co. v. Kean, 165. Baltimore, etc., B. Co. v. Keedy, 337. lialtimore, etc,, E. Co. v. Kelly, 614. Kaltlmore, etc., B. Co. v. Mah, 601. Baltimore, etc., B. Co. v. McDonnell, 511, 517. Baltimore, etc., B. Co. v. Meyers, 380. Baltimore, etc., B. Co. ». Noell's Admr., 527, 542, 6M. Baltimore, etc., B. Co. v. Pumphrey, 359. Baltimore, etc., B. Co. v. Scnwindllng, 520. Baltimore, etc., B. Co. v. Skeels, 345. Baltimore, etc., B. Co. v. State, 385, 553. Baltimore, etc., B. Co. v. Snlpbur Springs, 392. Baltimore, etc., B. Co. v. Whltacre, 473, 474, 498. Baltimore, etc, B. Co. v. Wlghtman, 374, 552. Baltimore, etc., Ry. Co. «. Woods, 111. Baltimore, etc., B. Go. v. Woodruff, 461. Baltimore & P. B. v. Beaney, 30. Baltimore & L. T. Co. v. Cassell, 140. Baltimore and B. Turnpike Boad v. State, 652. Baltimore Traction Co. v. State, 376. Baltimore Traction Co. v. Wallace, 162, 504. Baltimore & Y. T. Boad v. Leonhardt, 483. Bamberger v. Citizens' St. B. Co., 618. Bancroft v. Boston, etc., B. Co., 55, 540, 661. Bangbmane. Louisville, etc., B. Co. 347. Banghman v. Shenango, etc., B. Co., 198. Bangor v. Lansil, 93, 91. Bangass v. Atlanta. 306. Bank V. Downey, 321. Bank of Commerce v. Ginoccbio,31. Bank of Ireland v. Trustees of Bvans' Charity, 111. Bank of Ky. v. Adams Exp. Co., 345. Bank of Lindsburg v. Ober, 143. Bank of St. Marys v. St. John, 331. Bank of Upper Canada v. Bradshaw & Others, 413. Banknight v. Charlotte C. & A. B. Co., 372. Banks v. Evans, 436. Banks v. Highland St. By. Co., 10. Banks v. Wabash, W. By. Co., 27. Bannagan v. Dist. Columbia, 305. Bavber r. Mensch, 109. Barber v. Whiteley, 109. 608 TABLE OP CITATIONS. Beferences are to Pages. Barbonr Co. v. Horn, S98. Baiclay v. Leonard, 126. Bardwell v. Mobile & O. B. Co., 180. Barfield v. MoOombs, 436. Barkei v. Abendroth, 73. Barker v. Oltj of WoroesteT, 481. Barker V. Green, 4f)4. Barker ;;. Savage, 64, 65, 462, 603. Barkley ». Wilcox, 93. Barley v. Chicago, etc., B. Co., 646, 620, 652. Barling »; West, 139. Barlow v. McDonald, 128, 480. Bamadiston v. Soame, 254. Barnard v. Poor, 89. Barnes v. Means, 423. Barnes v. Kevrton, 306. Barnes v. Shreveport City B. Co., 613, 620. Barnes v. Ward, 74, 80. Barnett v. Lncas, 647. i Barney v. Flnkham, 420. Barney v. Saiindersr263. Barnowsky II. Helson, 631. Barnom v. Terpenning, 24, 125. Bamnm v. Vandneen, 131. Barr v. City of Kansas, 318. Barre v. Beading City Pass By. Co., 620. Barrett v. Hammond, 321. Barrett v. Sonthern Fac. Co., 78. Barrett v. Third Av. E. Co., 608. Barrett v. Town of Walworth, 142. Barron v. City of Detroit, 301. Barrott v. Pnllman Palace Car Co., 406. Barry v. Amand, 445. Barry v. Towell, 295. Barry v. New York Central B. Co., 278. Barry v. Terkildsen, 141. Barstow V. Old Colony B^o.,480. Barter v. New Ibrk Cent By. Co., 373. Barters. Wheeler, 366. Bartlett v. Baker, 101. Bartlett i>. Boston Gas Lgt Co., 290. Bartlett v. Crozier, 449. Barton v. Pepin Co., 35. Bartlett V. Pittsburgh, etc., B. Co., 356. Bartlett v. Telegraph Co., 627, 694. Bartley v. City of Cincinnati, 302. Barton ». St. Lonis, etc., B. Co., 63, 378. Barwlck v. English Joint Stock Co., 202, 323. Bass v.Chlcago.'B. & Q.B. Co., 89. Basseit v. Salisbury Mfg. Co., 94. Basten v. Butler, 58. Batchelor v. Fortesque, 76, 279. Bates V. Diamond Crystal Salt Co., 692. Bates V. Inhabitants, 95. Bates V. Pilling, 253. Bates «;. Smith, 93. Bathe v. Deoatnr Co. Ag. Soc, 214. Bather v. Day, 418., Bathgate v. Haskins, 435. Battersby v. Lawrence, 420y 422. Batteraon v. Yogel, 416, 416. Batton and wife v. Sonth, etc., Ala. B. Co., 207. Baxendale v. Bennett, 441. Baxendale v. East. Co. By. Co., 334, 385, 341,343. Baxendale v. Great East. By. Co., 335. Baxter v. Chicago R. I. & P. By. Co., 27. Bayle v. Tamlyn, 123. Bayley v. Man. SheS. & Line. By. Co., 203, 205. Bayley v. Wolveihampton Water Works Co., 447. Bay Shore B. Co. e. Harris, 614. Beach v. Beach, 434. BE^GH Oir COHTBIBnTORT Nl!OI,IOEirOI!, Ill, 120, 277, 461, 463, 482,486, 487,491, 617. Beach V. Gfeegory, 435. Bevard v. Hoffman, 450, 461. Beach ok Pub. Cobporatioks, 142, 292. 302, 304, 305, 306, 307, 309, 689. Beach v. Farmeter,64. Beal V. Pittsburgh, etc.,- B. Co., 493. Beal V. Sonth Devon B. Co., 346. Beale v, Posey, 417. Bealeyf. Shaw, 96. Beall V. Tp. of Athens, 3S. Bean v, Carleton, 592. Bear v. CII7 of Allentown, 301. Beard v. Com., etc., B. Co., 73, 396. Beard v. Illinois C. B. Co., 339. Beard v. Murphy, 6, i Beard v. St. Louis Eleo. I^. Beardsleyv. Hartford, 317. Beardsley V. Swann,595. Beatrice v. Beid, 219. Beatty v. Gilmore. 474. Beauohampv. Saginaw Mining Co.,43,44. Beauclark v. Ashburnham, 2^. Beck V. Bellamy, 430. Beck V. Carter, 81, 83, 140, 141. Beck V. East Blver Eerry Co., 509. Beck V. Dowell, 698. Beck V. The German Elinik, 423. Becke V. Missouri Fac. By. Co., 609. Becker v. Haynes, 417. Becker v. Janinski, 423, 426, 492. Becker v. W. V. Tel. Co., 694. Beckerle v, Weiman,66. Beckham v. Hlllier, 613. Beckman v. Georgia Fac. By. Co., 660. Beddell v. Long Island B. Co., 86 Bedell v. Berken, 280. Beecher v. G. E. By. Co., 362. Beeher v. Daniels, 77. Beems v. Chicago, etc., B. Co., 664. Beers v. Eendrickson, 436. Beers v. Honsatonic, etc., B. Co., 473. Beeson v. Greeh Mountain Gold Mining Co., 643. Behling v. S. W. Pa. P. L., 47. Behrens v. Great Northern B. Co., 337. Belsergel v. Town of Seymour, 136, 187. Belbee v. L. B . & S. O. By. Co., 277. Belding «. Black Hills & Ft. P. B. Co., 639, 560. Bell V. Midland By. Co., 687. Bell V. Smith, 473. Bell V. Toy, 648. Belle V. W. U. Tel. Co., 598. Belief ontaine B. Co. v. Unnter, 50. Belletontalne, etc., B. Co. v. Snyder, 516, 518. Bellemire v. Bank of U. S., 462. Belt V. Gulf, etc., B. Co.; 556. Belton V. Baxter, 64, 65. Bemis V. Connecticut, etc., B. Co., HI. Benjamin v. Holyoke St. By. Co., 489. Bennett v. Chicago, etc., B. Co., 111. Bennett t>. Fifield, 33, 142. Bennett v. Ford, 130. Bennett v. Louisville, etc., B. Co., 72, 393. Bennett v. Lovell, 142. Bennett v. Mellor, 410. TABLE OF CITATIONS. 609 References are to Pages. Bennett v. Milwaukee, etc., E. Co., la-J. Bennett v. New Jersey, etc., E. Co., 508, 509, 510. Bennett o. The Gnlding Star, 341. Bennett v. Wabasb, etc., E. Co., 117. BennewiU v. CnUen, 337. Bensal V. Mayor, etc., 310. Bensel v. l.yncb, 420. Benson V. Baltimore Traction Co., 76. Benson v. Central Pac. B. Co , 35. Benson v. CUcago, etc., E. Co., 96, 552, 554. Benson v. Snarez, 105.- Benson V. Titcomb, 472. Bent V. Priest, 334. Benthall v. Seiteft, 98. Benton v. Craig, 431. Berg V. City of MUwan^ee, 483. Berger v. New Orleans, 592. Bergbeim v. Great Eastern Ry. Co., 362. Bergjian v. St. Lonis, etc., Ey. Co., 465. Berheim v. Shannon, 453. Berkshire Woolen Co. ». Procter, 417. Bernstein v. Baxendale, 386. Bernstein v. Meeeb, 393. Berrtnger v. Gri-at East. B. Co., 368. Berry v, Marix, 60. Berry v. Kansas City, etc. , K. Co., 372. Berry v. IjOniSTllle, etc., E. Co., 538. Bessantw. G. W. By. Co., 109. Best V. Town of Ktnston, 555. BetheU v. Abraham. 263. Bens V. Gibbons, 604. Bettsv. GloTerBTille,2n2, 307. Betts V. Bailroad Co., 353. Bevlns v. Bamsey, 452. Bevls V. Baltimore & O. B. Co., 631. Beyal v. Newport News & W. V. E. Go., 601. Bibb V. Norfolk & W. E. Co., 215. Bicktord v. D'Arcy, 429. Blederman v. Brown, 202. Biellng V. City of Brooklyn, 305. Bierer«. Harst, US. Blerman v. St. Lonis, 307. Bigelow V. Ealamazoo, 307. BIgelow V. Eandolpb, 135. BIGELOW ON TOETS, 81, 83. Biggs V. Hnntington, 316. Blgler ■». Toy, 433. Billings V. Fltohburg E. Co., 87. Billings V. Worcester, 311, 312. Blllman v. Indianapolis B. Co., 32. Billmeyer v. Wagner, 392. Binf ord v. Johnston, 39, 65. Bingham v. Boston, 318. Binis V. S. T. Ey., 81. Blrbeck v. Stafford, 433. Bird V. Everard, 60. Bird V. 6t. Northern R., 523, 526. Bird V. Bolbrook, 80, 286. Birge V. Gardiner, 78, 514, 619. Btrkett v. Klnckerbocker Ice Co., 521, 552. Blrkett v. Whitehaven Janction By. Co., 382. Birmingham v. Eochester City & B. B. Co., 142, 374. Birmingham Mineral E. Co. v. Wllmer, 470. Birmingham Nat. Bank v. Bradley, 442. Birmingham By. & E. Co. v. Allen, 494. Bisaillon v. Blood, 515. Bischoff V. People's Ry. Co., 39, 486. Bishop V. City of Centralla, 146. Bishop V. St. Paul City Ry. Co., 44. Bishop V. Weber, 2ti8, 418. Bissell V. N. Y. Cent. E. Co., 386. Black V. Ashley, 340. Black V. Chicago, B. & Q. E. Co., 336.337. Black V. Ctty of Lewiston, 481. Black V. Rogers, 437. Black V. Wabasb, etc., E. Co., 348. Black's Law Die, l. Biackbnrn v. Minter, 548. Blackhonse v. Bononl, 602. Blalckman v. Gardiner Bridge, 595. Blackman v. L. B. & S. By., 389. Blackmore v. Bristol & Exeter By. Co., 457. Blackmore v. Vestry of Mile End Old Town, 136,299. Blackwell v. Lynchburg & D. B. Co., 531. Blaechlnska v. Howard, M. It, H. 592. Blair ». Erie Ey. Co., 384, 385. Blair V. Minneapolis, etc., R. Co., 117. Blake v. Burlington, etc., Ey. Co., 384. < Blake v. Farris, 214. Blake v. Fox, 107. Blake o. 6. & W. Ry. Co., 382. Blake v. Md. Ry. Co., 542, 695. Blake v. St. Louis, 142. Blake v. Thirst, 221. Blamires v. Lancashire & Yorkshire By. Co., 293. Blantord v. Minneapolis & St. L. Ry. Co., 113. Blankeny v. W. U. Tel. Co., 597. Blatt V. McBarron, 73. , Blenkiron v. Great Cent. Gas Co., 290. Bliss V. Matteson, 324. Bliss V. Pullman Palace Car Co., 409. Bliss V. Town of South Hadley, 514. ' ' Block V. Railroad Co., 361, 366. Blockstock V. N. Y., etc., R. Co., 356. Bloor V. Town of Dellafield, 142. Blower v. G. W. Ry. Co., 334. Blum V. Southern P. P. Car Co., 401, 402, 405. Blumauth v. Fitchbnrg R. Co., 365. Blumenthal t>. Bralnards, 340. Blamenthal v. Maine Cent. B. Co., 365. Blyhl V. WaterviUe, 307. Blyth V. Birmingham Water Works, 2, 26 29 99. Blyth v. Topham, 80. Blythe v. Denver & B. G. Ey. Co., 337. Board Com'rs. Allen Co. v. Cxevlston, 143, 146. Board Com'rs. Boone Co. v. Mntchler, 34,509. Board Com'rs. El Paso Co. v. Blish, 136. 145. Board, etc., Morris Co. v. Hough, 145. Board of Com'rs. Howard Co. v. Legg, 146. Board of Com'rs. Madison Oo. v. Brown. 146. Board Oom'rs. Parke Co. v. Sappenfleld. 34, 143. Board Oom'rs. Sullivan Co. v. Sisson, 27, 145. Board Com'rs. Vermillion Oo. v. Ohippo, 146, Boath V. DrlscoU, 97. Boilwell V. Bragg, 412. Buehl V. Chicago, etc., Ey. Co., 352. Rohan V. Borough of Avoca, 303, Bohan v. City of Waseca, 305. 89 610 TABLE OF CITATIONS. References are to Pages. Boland v. Missouri, etc., B. Co., 518. Bolcliv. Smith, 79. Bolton V Colder, 65, BomoT V. Maxwell, 363. Bond V. E'Tansville, etc., B. Co., 116, 293. Bond V. Smith, 171. Bonlfay v. Hassell, 692. Boulne v. Bichmond, 318. Bonner v. De Mendoza, 366. Bonner v. Glenn, 378, Books V. Danville, 539. Boom V. Reed, 420. Boon V. Murphy, iiS. Boorman v.- American Bxpress Co., 346. Booth V. Mister, 212. Booth V. N. E. By. Co., 343. Booth V. Batte, 603. Booth V. Borne, etc., B. Co., 224, Boothby v. Androscoggin, 8. Berries v. Hutchinson, 356. ' Borman v. Sandgren, ]06. Borough of BrookviUe v. Arthurs, 309. Borough of Manch Chunk v. Kline, 313. Borough of Sandy Lake v. Farker, 316. Borough of West Bellevue v. Huddle- son, 94. Bosler v. Seahright, 435. Boss V. Godsall, 2(i3. Boss V. Litton, 63, 516. Bostock V. Floyer, 258. Boston V. Gray, 105. Boston V. Henderson, 592. Boston, etc., B. Co. v. Dana, 548. Boston, etc., B. Co. v. Shanley, 287. Boston, etc., B. Co. v. Shldley, 339. Bostwlck V. Minneapolis & P. By. Co., 40. Boswell V. Laird, 219. Bosworth V. Swausey, 481. Bott V. Pratt, 55. Bottenbergv. Nixon, 69. Bottoms V. Seaboard & B. B. Co., 513, 615. Boulder v, Xiles, 311. Boulter v. Webster, 543. Bourdiero. Morgan's, etc., B. Co., 96. Bourget v. Cambridge, 320. Bourne v. Diggles, 433. Bourne v. GatliSe, 334. Bovee v. Danville, 597. Bowden v. San Antonla & A. P. By, Co., 358. Bowe V. Hnnkling, 107. Bowell V. DeWalk, 412. Bowen V. City of Huntington, 213. Bower v. Peate, 214, 221, 271, 275, 313, 317. Bower v. B. & S. W. B, Co,, 246, Bower v. Smith, 422. Bowers v. Chicago, etc., B. Co., 601. Bowers v. Lovekin, 229. Bowes V. City ot Boston, 60, 642. Bowes V. Bailroad Co., 372. Bowker v. Pierce, 267. Bowles V. Kansas City, S22. Bowling V. Arthur, 443. Bowlsby V. Speer, 93. Bowman v. New Orleans, 93. Bowman v. Tollman, 428. Bowman v. Wood, 424. Boyce v. California Stage Co., 527. Boyce v. Chapman, 341. Boyd V. Burkett, 288, 466. Boyd V. Conklin, 94. Boyd 1). Toague, 453. Boyd V. Watt, 133. Boylan v. Brown, 480. Boyle V. Tamlyn, 109. Boyle V. Winslow, 426, Boys V. Fink, 336. Boyton v. Longley, 94. BrackenBurg v. Fell, 434, Brackenridge v. Fitchbiug, 314. Brackett v. Norton, 433. < Brackett v. Sears, 432. Bradburne v. 6. W. By. Co., 571, 588. Bradlee v. Christ's Hospital, 67. Bradbury v. Furlong, 340. Bradbury v, Sutton, 336. Bradford v. Anniston, 320. Bradley v. Andrews, 286. Bradley «;. Ft. Wayne* E. By. Co., 489. Bradley v. Fisher, 450, 431. Bradley v. Sattler, 54L Bradshaw v. Lane. & New York By. Co., 546. Bradstreet v. Everson, 433. Bradwell v. Pittsburgh & W. E. P. By. Co., 474, 483, 603. Brady v. Chicago, 542. Brady v. Giles, 213. Brady v. Valentino, 103. Bramwell v. Pennack, 229. Branaban v. Hotel Co., 138. Branch v. Wilmington, etc., B. Co., 344r Brand v. Craig, 12. Brand v. Hammersmith By. Co., 84. Brannen v. Kokomo, etc., B. Co., 508. Brannock v. Elmore, 224. Branson V. Labrot, 619. Brant v. Midland By. Co., 336. Braes v. Maitland, 288. Brasyner v. Maclean, 445. Breckenridge v. Bennett, 76. Bredin v. Eingland,^32. Breigti. Chicago & W. M. By. Co., 495. Bremmer i>. Green Bay, etc., R. Co., 122. Bremmer v, Williams, 273, 392, 393. Brennan v. Friendship, 489. Brennan v. New York, 316. Brennan v. Schreiner, 224. Brennan v. St. Louis, 314. Brentuer v. Chicago, etc., B. Co., 121. Bresnahan v. Cent. R. Co., 61. Bresse V. U. S. Tel. Co., 594. Brewer v. New York, etc, B. Co., 385. Brezee v. Powers, 489. Brezel v. Powers, 82. Brice V. Bauer, 127. Brice V. Stokes, 237. Brickell v. New York, etc., B. Co., 508. Bridget;. Gummon, 235. Bridger v. AshviUe, etc,, B. Co., 519, 520, 696. Bridges «. L. & N. W. By. Co., 399. Bridges v. North London By. Co., 397, 487. Briggs V. Kloss, S. Briggs V. New York Cent, etc., B. Co., 504. Briggs V. Oliver, 275, 523, 632. Briggs V. Olson, 629. Briggs V. Spaulding, 324. Briggs V. Taylor, 24, 339. Briggs V. Union St. By. Co., 376. Briggs V. Warden, 449. Bright Hope B. Co. v. Rogers, 86, 87. > Brine v. Grent Western Ky. Co., 140. Briakerhoff v. Bostwlck, 325. TABLE OF CITATIONS. 611 References are to Pages. Brlnkley Car Works & Mfg. Co. v. Cooper, 619. , Bristol & Exeter By. v. Collins, 359. Britton v. Atlanta, etc., By. Co., 207. Britton v. Nlobolls, 443. Broadwell v. City of Kansas, 302. Broadwell v. Swigert, 491, 812. Brock V. Connecticut, etc., S. Co., 116. Brock V. Gale, 405. Brockley v. Brockley, 437. Bromley v. Btrmingliam M. E. Co., 470. Bronson v. Coffin, 109, 116. Bronson v. Labrot, 77. Branson v. Soathbnrg, 143, 514. Brooks V. Boston, etc., B. Co., 379. Brook V. Copeland, 131. Brooks V. Hannibal & St. J. B. Co.,24, 465. Brooks V. Kings Co. El. B. Oo.,531. Brooks V. Scbnerln, 64. Brooks V. Taylor, 127. BBOOM'S LiBOAL, Maxius, 26. Broscbart v. Tattle, 461. Brusnan v. Sweetser, 280. Brongbton v. Mid. G. W. of Ireland Co., 294. Bronssean v. The Hndson, 337. Brown v. Accrington Cotton Co., 215. ' Brown v. Barnes, 379. Brown v. Baffalo, etc., B. Co.. 550. Brown v. Brooks, 4S9. Brown v. Butterley Coal Co., 229. Brown v. Camden, etc., B. Co., 358. Brown v. Central P. E. Co., 49. Brown v. Coffin, 110. Brown v. Congress, etc., St. B. Co., 1. Brown v. Chicago, etc., B. Co., 42, 43, 377, 379, 3S1. Brown v. Davis, 58. Brown v. Eastern E. Co., 365. Brown v. European, etc., B. Co., 514. Brown v. Hannibal, etc., B. Co., 73, 5-28. Brown v. Ilius, 92, 98. Brown v. Laurens Connty, 35. Brown v. Lester, 452. Brown v. Lynn, 462, 478. Brown v. Mancbester & Sheffield By. Co., 343. Brown v. Marshall, 39. Brown v. McLeisb, 215. Brown v. M. S. & L. By. Co., 343. Brown v. New York, etc., B. Co., 509. Brown v. Pordy, 423. Brown v. Scarboro, 463. Brown V. Snlliyan, 466, 489, 693. Brown ». Texas & P. Ey. Co., 502. Brown v. Wabash, St. L. etc.,E. Co., 36. Brown v. Winona & L. W. E. Co., 93. Brown v. Werner, 8. Bkowne on Caebiebs, 29. Browning v. Rittenboase, 454. Browning v. Tory Island E. Co., 349. Brown lee v. Alexia, 319. Brownlow v. Met. Board, 140. Bmce V. Baxter, 429. Brnce v. Cincinnati B. Co., 538, Brnce's Admr. v. Eailroad Co., 555. Brncker v. Town of Covington, 316. Brnnker v. Cnmmins, 106. Brnmbangh v. Borongb of Bedford, 306. Brnmbridge v. Maasey, 438. Bruno o. Brooklyn City E. Co., 52,377. Brnnsdenv. Hnmphrey,304. Krunson v. Martin, 648. Brunswick v. White, 286. Brusso V. Buffalo, 141, 218, 319. Bryan v. Memphis, etc., B. Co., 361, Bryan v. Missouri Fac. E. Co., 386. Bryans v. Taylor, 433. Bryant v. Biddetord, 481. Brymer v. Southern Pac. Co., 624. ISryne v. Boadle, 212. Buchanan v. West Jersey B. Co., 39. Buchanan v. Barre, 307. Buchanan v. City of Duluth, 305. Bucher v. Cheshire E. Co., 40, 481. Bucher v. Fltchburg E. Co., 40. Bucher v. Hew York Cent., etc., E. Co., 54, 380. Buck V. Blddiford, 318. Backi V, Cone, 216. Buckingham v. Fisher, 283. Bnckland v. Adams Express Co., 346. Buckley v. City of New Bedford, 304. Buckley t). Great Western E. Co., 340. Buckman v. Allwood, 433. Budd V. TJiiited Carriage Co., 486. Buddington v. Shearer, 133. Buel V. New York, etc., B. Co., 4S5, 486. Buffum V. Harris, 93. Bahrens v. Dry Dock, etc., Ey. Co., 489. Bnlkley v. N. Y., etc., R. Co., 112. Bulllngton v. Newport News & M. Y. Co., 590. Bnlman v. Furness Ey. Co., 3. Bunch V. Edenton, 317. ' Bunker v. Midland Ry. Co., 233. Bnnncllv. Stern, 60. Bunting V. Central Pacific Co., 390. Banting v. Hogsptt, 32, 509. Bunyen v. Metropolitan B. Co., 545. Karchell v. Hicklsson, 74. Bardick v. Cheadle, 103, 106. Burford v. Grand Eapids, 306. Burger v. St. Louis, etc., E. Co., W-Z. Burgess v, Clements, 413. Burgess v. Gray, 219. Burgin V, Richmond, & D. B. Co., 380. Burk V. Dempster, 59. Burke V. New York, etc., E. Co., 501. Burke », S. E. Ev. Co., 367. Burke v. Shaw, 202. Burke v. Wetherbee, 497. Burgeoln v. New York C. & H. E. Oo.,^ 366. Burgner v. Humphrey, 9. Burham v. Strather, 129. Burkbardt v. Hanley, 8. Burlington & C. B. Co. v, Liehe, 494. Burlington, etc., E. Co. v. Shoemaker, 118. Burlington, etc., E. Oo. v. Webb, 119. Burlington, etc., B. Co. v. Westover. 87. Bnrnell v. New York, etc., E. Co., 366. Bnrnbamt;. Stevens, 449, 450, 461. Burnham v. Wabash W.By. Co., 394. Burns v. Bellefontaine B. Co. 377. Burns v. Bradford, 319. Burns v. North Chicago EolUng Mill Co., 606. Burns e. Pethcal, 262. Bnrrell Tp. v.Uncaphor, 38. Burrill V. Shell, 263. Bnrrltt v. New Haven, 144. Burroughs v. Erie E. Co., 54, Burroughs v. Eailroad Co., 360. Burroughs v. Saterlee, & 97. Burrows v. Trleber, 411. Burrows v. Match Gas Co., 27, 29, 459. 612 TABL£ OF CITATIONS. Befereuces are to Pages. Bniton V. WllminKton JK. Co., S51. Bnrton S.Henry, 691. Baesching v. St. Loaia Gas Llgbt Co., 82, *70, 471. Busby V. Holthans, 6. Bnsh V. City of Portland, 94. Bash V. Steinman, 2*24. Batcher v. L. & 8. W. Ey. Co., 363. Butcher v. Fro-vidence Gas Co., 289, 290. Butler V. Butler, 262. Butler r, Hearne, 342. Butler V. Hunter, 214, 221. Btitler V. Enlght, 435. Butler V. Oxford, 319. Butler V. Peck, 93. Butler V. Pittsburg & B. St. By. Co,, S3, 378. Butler V. St. Paul & D. R. Co., 483. Butler V. Village of Edgewater, 303, 303. Butt V. Wood, 324. Butterfleld v. Forrester, 460, 461, 477. Butterfield v. Western B. Co., 50. Button V. .Frink, 473. Button V. Hudson Blver Co., 462. Buxenden v. Shaipe, 282. Buxton V. IS. B. By. Co., 110, 139, 382. Bnzzell v. Mnfg. Co., 493, 494. Byrne v. Boadle, 63, 71, 275,276,622, 629. Bryne v. N. Y. Central By., S13, 619. o. Cadogan v. Bsaex, 263. Caffirey v. Darby, 257. Cabill V. Cincinnati, etc.. By. C!o., 61, 499, 508. Cabill V. Easti^an, 92, 275. Cahill V. Layton, 75. Cabill V. L. & N. W. Ey. Co., 862. ' Cahn V. W. U. Tel. Co., 692. Cain V. Syracuse, 139. Cairncross v. Village of Fewankee, 142. Cairo, etc., B. Co. v. Stevens, 93, 95. Cairo, etc., B. Co. v. Warrington, 123. Calder V. Smalley, 82, 309, 310. Oalder v. Walla Walla, 311. Caldon v. Chicago, etc.. By.' Co., 114. Caldwell v. Birown, 652. - Caldwell v. Hall, 69. Calkins v. City of Hartford, 321. Callahan v. Eel Biver & E'. R. Co., 78. Callahan v. Sharp, 513. Callahan v. Warne„460. Calvin V. Parker, 133. Calvin v. Feabody, 286. Camden, etc., E, Co. v. Bansch, 386. Camden, etc., E. Co. v. Belknap, 365. Camden, etc., B. Co. v. Burke, 393. Camden, etc., B. Co. v. Hoosey, 376. Cameron v. Bryan, 127. Cameron v. White, 692. Gamp ». Carlisle Deposit Bank, 59. Camp V. Hartford, etc.. Steamboat Co., 344. Camp V. W. U. Tel. Co., 594. Camp V. Wood, 62, 73, 104, 267. CA]UPBEI,L ok NBGLia£NCK,'20, 21, 22, 57, 58, 72, 274, 275, 277, 294, 448, 506. CAMPBELL'S FRABES'S LAW OV UASTEB. AND SEKVANX. 232. Campbell v. Atlanta, etc., E. Co., 470. Campbell v. Boyd, 278. Campbell v. Bagley, i33. Campbell v. Brown, 126, 127. Campbell v. Campbell, 253. Campbell v. Fisher, 596. Campbell v. Harris, 599. CampbeU v, £lncaid, 435. Campbell v. McCoy, 461. Campbell v. Portland SngarOc, 72. Campbell v. Bodgers, 665. Campbell v. Trimble, 214. Campbell v. Wing, 695. Campkin v. Barton, 265. Canadian, etc.. By. Co. v. Cbalttaux, 37S. Canavan «. Stuy vesant, 107. Candee v. Ballroad Co., 3S6. Candee v. Western Union, etc., Tel. Co., 592, 693. Candiff V. Lonlsyllle, etc.. By. Co., 201. Canefoz v. Crenshaw, 126. Canfleld v. Andrews, 97. Canfield v. Baltimore, etc., B. Co., 385. Caniff V. Blanchard N av. Co., 77. Canley v. Pittsburgh Ey. Co., 513. Cann v. Cann, 258. Cannavan v. Conkling, 107. Canning v. Wllliamstown, 696. Cannon V. Louisville, etc., E. Co., 112. Cannon Biver Mfgrs. Assoc, v. First Nat. Bank, 69. Cantwell v. Appleton, 320. Capebart v. Seaboard, etc., B. Co., 348. Card V. Ellsworth, 143. Carey v. Chicago, etc., B. Co., 120. Carbart v. Auburn Gas Light Co., 92. Carleton v. Franconla, etc.. Iron Co., 62, 73. Carlln v. Chappel, 9. • Carlisle Bank v. Graham, 440. Carlisle v. Sheldon, 512. Carlson v. Oregon, etc.. By. Co., 543. Oarlyon v. Fitzhenny, 59. Carmon v. Ballroad Co., 292. Carney v. Village of Marseilles, 137. Carpenter v. City of Coboes, 146. Cashiil». Wright, 413. Carpenter ». Boston, etc., B. Co., 396, 398. Carpenter v. Carpenter, 269. Carpenter v, Latto, 283. Carpenter V. Mexican Nat. B. Co., 595. Carpenter v. Kew York, etc., B. Co., 404, 409. Carqne v. London, etc., B. Co., 523, 532. Carr v. Eel Biver & E. B. Co.. 64, 379. Carr v. Lancashire A York By. Co., 342. Oarrico «. West Va., etc.. By. Co.,53,224, 462,466. Oarrlger v. East Tennessee, etc., B. Co., 95. Carrington v. Fi'cklln, 59. Oarrlngton v. Louisville & N. B. Co., 463, 478. Carrlthers v. Cox, 53S. Carroll v. Interstate B. T. Co., 375, 383. Carroll v. N. Y.. etc., E. Co., 381. Carroll v. Fennaylvania Coal Co., 494. Carroll v. Penn. E. Co., 61. Carroll ». Staten Island, B. Co., 373, 374, 480. Carsi v. Maretzk, 424. Cavskaddon v. Mills, 73. Carson v. City of Green Bay. 3S. Carson v. Federal, etc., By. Co., 499. Carson v. Godley, 108. Carter v. Berlin Mills, 216. TABLE OF CITATIONS. 613 Beferences are to Pages. Carter V. ObambeTS, 49. Carter v. Columbia, etc., K. Co., 471. Carter v. Drysdale, 260^ Carter v. Kaoeaa City Cable Ry. Co., 627. Carter V. LonlsvlUe, etc., Ky. CO.,1!04. Carter v. Town ot Montlcelio, 320, Carter «. Towne, 37,287, S17. Case V. Cleveland, etc.. By. Co., 364. Case V. St. Lonls, etc., 122. Casement v. Brown, 218. Cass V. Boston R. K. Co., 24. Cassidy v. Angell, 471. Castalla Trout Club Co. v. Oastalia Sporting Club, 97. Castle V. Pnryea, 286, 450. Castner v. Biefel, 109. Caswell V. Worth, 498. Catcbpole v. Ambergate By. Co., 333. Catlett V. Young. 465. Catron v. Nicbols, 85. Catterllng v. Frankfort, 308. Cattle V. Stockton Waterworks Co., 34. Cattlin V. Hills, S06. Caranaugh v. Ocean Steam NaT. Co., 556. Cavllland v. Yale, 429. Cayle's Case, 410, 414. CEHTBAI. Law Jl.. (abst.), 24, 78, 93, 143, 207, 208, 215. Central Nat. Bank v. Gallagher, 455. Central, etc., B. Go. v. Atiaway, 483. Central, etc., B. Co. v. Brldger, 361. Central, etc., B. Co. v. Brlnson, 51. Central, etc., B. Co. v. Coombs, 366. Central, etc., B. Co. v. Dixon, 62. Central, etc., B. Co. v. Dwlght Mfg. Co., 346. Central, etc., B. Co. v. Feller, 502. Central, etc., B. Co. v. Georgia F. and v. Exchange, 361. Central, etc., B. Co. v. Harrison, 478. Central, etc., B. Co. v. Hasselkus, 346. Central, etc.,B. Co. v. Letcher, 379. Central, etc., K. Co. v, Moore, 641. Central, etc., B. Co. v. Newman, 464. Central, etc., K. Co. v. Fassmore, 372. Central, etc.,B. Co. v. Fenna. B. Co., 144. Central, etc.,'B. Co. v. Phinazee, 503. Central, etc., B. Co. v. Bouse, 551. Central, etc., B. Co. v, Sanders, 627. Central, etc., B. Co. v.Smith,355,376,49L Central, etc., B. Co. v. Thompson, 552. Central Pass. By. Co. v. Bose, 40, 376. Central Trust Co. v. Wabash By. Co., 96,364,366,503,513. Central Vermont B. Co. v. Soper, 349. Cesar v. Kamtz, 108. Chaddock v. Flummer, SO, Chad wick v. Trower, 69. Chaffee v. Boston, etc., B. Co., 501, 505. Chain's. Bart, 432. Chalk V. McNally, 9"/. Chalkley v. City of Blchmond, 304. Chamberlain v. Masterson, 411, 412. Chamberlain V. Oshkosb, 311. Chamberlain v. West, 416. Cbamberlin v. Porter, 136. Champion V. Town et Crandon,94, 304. Chandler v. Bacon, 333. Chanvet ». HUl, 96. Ohaplln V. Hawse, S26. Chapman v. Chicago, etc, B. Co., S90. Chapman v. Bwles, 433. Chapman v. G. W. B. Co., 334. Chapman v. Milton, 314. Chapman v. New Hayen, etc., B. Co., 608, 609. Chapman v, Bothwell, 71, 280, Cbarlebois v. Gogebic & M. B, Co., 216. Charless v. Bankin, 7. Charles ». Taylor, 221. Charley v. Bolcot, 420, 422. Chartiers v. Langdon, 309. Cbartiers Valley Gas Co. v. Liynch, 215. Chartiers Valley Gas Co. v. Waters, 216. Chase v. City of Lowell, 305, 320. Chase V. Cleveland, 311. ^ Chase v. Maine C. B. Co., 506. Chase v. New York Central By. Co., 491, 492. Chase v. Stlverstone, 97. Chatalgne v. Burgeson, 286. Chatfieid v. Wilson, 97. Chattanooga B. & C. B. Co. v. Brown, 118. Chattanooga B. & C. B. Co. v. Clowdls, 662. Chattanooga B. & C. B, Co. v. Huggins 485. Chattanooga B. & C. B. Co. v. Liddell. 589. Chantangna Lake Ice Co. v. McLucky, 488. Cheetham v. Hampson, 101, 105, 109. Cheney ». Eussell, 128. Chenowith v. Cbamberlin, 452. Cherokee & P. Coal & M. Co. v. Limb, 644. Cheeves v. Danielly, 97. Chicago i>. Dermody, 216. Chicago V, Elzeman, 596. Chicago V. Harwood, 542. Chicago V. Hay, 599. Chicago V. HeslDg, 614. Chicago V. Hoy, 142. Chicago v. Kelly, ^89. Chicago V. Langlasa, 306, 696, Chicago V. McCnllocb, 654. Chicago V. McGlven, 311. Chicago V. O'Brennan<105, 595. Chicago V. O'Brien, 811. Chicago V. Bobins, 140, 219, 275. Chicago V. Schmidt, 323. Chicago V. Scholten, 543, 552, 553. Chicago Drop F. & F. Co., v. Van Dam, 494. Chicago, etc., B. Co. v. Abbott, 112. Chicago, etc., B. Co. v. Abels, 344,352,366. Chicago, etc., B. Co. v. Addizoat, 367. ' Chicago, etc., B. Co. v. Arbaugh, 500. Chicago, etc., B. Co. v. Asbnry, 493. Chicago, etc., B. Co. v. Barnes, 85, 690. Chicago, etc., B. Co. v, Becker, 485, 521. Chicago, etc., it. Co. v. Bebney, 114. Chicago, etc., B. Co. v. Bell, SCO. Chicago, etc., B. Co. v. Bockoven, 519. Chicago, etc., B. Co. v. Brangan, 119, 641. Chicago, etc., B. Co. v. Brown, 465. Chicago, etc., B. Co. v. Bryan, 204. Chicago, etc., B. Co. v. Campbell, 113. Chicago, etc., B. Co. v. Carpenter, 383. Chicago, etc., B. Co. v. Casey, 201. Chicago, etc., B. Co. ti. Chambers, 161, 469. Chicago, etc.. B. Co. v. Chapman, 21, 844. Chicago, etc., B. Co. i;. Clongh, 505. Chicago, etc., B. Co. v. Coss, 62. Chicago, etc., B. Co. v. Deiconrt, 376. Chicago, etc., B. Co. v. Des Lanriers, 461. 614 TABLE OF CITATIONS. Beferences are to Images > Dhlcago. Chicago, Chicago, Chicago, Chicago, Chicago, Chicago, Chicago, Chicago, Chicago, Chicago, Chicago. S96. Chicago, 613. Chicago, Chicago, Chicago Chicago, Chicago, Chicago, Chicago, Clilcago, Chicago, Chicago Chicago, Chicago, Chicago, Chicago Chicago, Chicago, Chicago. 114, Chicago. Chicago. Chicago, Chicago, Chicago, Chicago, Chicago. Chicago, Chicago Chicago, Clilcago, Chicago, Chicago, Chicago, Chicago. 651. Chicago, Chicago, Chicago, Chicago Chicago, Chicago, Chicago. Chicago, Chicago, Chicago, Chicago, Chicago, Chicago, Chicago! Chicago, Chicago, Chicago, 615. Chicago. Chicago, Chicago, 613. Chicago. Chicago, Chicago, etc., E. Co. V. Dewey, 62. etc., B. Co. V. Dickson, 206. etc., B. Co. V. Dlmick, 160, 161. etc., B. Co. V. Dnmser, 114. etc., B. Co. V. DnnleaTy, 464. etc., B, Co. V. Glchman, 373. etc., B. Co. V. Elliott, 35. etc., B. Co. V. Epperson. 202. etc., E. Co. V. Fahey, 366. etc., B. Co. V. Ferguson, 205. etc., B. Co. V. Fieteam, 461. etc., B. Co. V. Fisher, 501, SOB, etc., B. Co. V, Fitzslmmons, 199, etc., B. etc., B. etc., B. etc., B. etc., B. etc., B. etc., B. etc., B. etc., B. etc., B. etc., B. etc., H. etc., B. etc, B. etc., B. etc., B. etc., B. etc., B. etc., E. etc., B. etc., B, etc., B. etc., B, etc., B etc., B. etc:, B. etc., E. etc., B. etc., E. etc., B. etc., E. etc., B. Co. V. Co. V. Co. V, Co. V. Co. V. Co. V. Co. V. Co. V. Co. V. Co, V. Co. V. Co. V. Co. V. Co. V. Co. V. Co. V. Co. ii. Flexman, 207: Gilbert, 87, 89. GUIam, S42. Glenney, 91. Goebel, 478. Goyette, 86, 88. Grabltn, 520. Haas, 113, 114. Harney, 618. Hawk, 385. Hlnes, 473. Hitt, 697. Hogan, 113. Honston, 500. Howard, 641. Hant, 86. HatchlosoD, 61, Co. V. James, 113. Co. V. Jauett, 122. Co. V. Johnson, 4H4. . Co. V. Eellam. 111. . Co. V. Kern, 89. . Co. V. Eoehler, 63, 375. Co. V. Lane, 600. Co. V. Lee, 602. Co. V. Lewis, 373, 374. Co. V. Logae, 617. Co. V. Magee, 116. Co. V. Manning, 337. Co. V. Metcalf, 690. Co. V. Mogk, 212. Co. V. Uoranda, 541, 553, etc., etc, etc., etc., etc., etc., etc., etc., etc., etc., etc.. etc., etc., etc., etc., etc., etc. B. Co. V. B. Co. V. E. Co. V. B. Co. V. B. Co. V. B. 00. V. E. Co. V. E. Co. V. E. Co. V. E. Co. V. B. Co. V. B. Co. V. E. Co. V. E. Co. V. B. Co. V. E. Co., V. , E. Co, Mnrphy, 480. Murray, 803. McOahill, 88. McCool, 340. McGinn, 114. McLean, 504. Ostrander, 86. Fatchln,63S. Pennell,86,90,91. People, 339. Fondrom, 63, 378. Prescott, 27, 506. Qaintance, 86. Bandolph, 375. Bice, 113. >. Boberts, 179. Bobinson, 390,- etc., B. Co. V. Byan, 618. etc., E. Co. V. Scates, 376. etc., B. Co. V. Schmirlowsky, etc., B. Co. V. Scott, 310. etc., B. Co., i;. Sims, 119. etc., B. Co. V. Smith, 89, 513. Chicago, etc., B. Co. v. Spilker, 483, 512. Chicago, etc., B. Co. v. Steck, 93. Chicago, etc., E. Co. v. Sweet, 513. Chicago, etc., B. Co. v. TraTls, 494, 534. Chicago, etc., B. Co. v. Utley, 109. Chicago, etc., E. Co. v. Warner, 464. Chicago, etc., B. Co. v. W> st, 201. Chicago, etc., E. Co. v. Wilcox, 613 614. Chicago, etc., E. Co. v. Williams, 16. Chicago, etc., B. Co. v. Wilson, 51, 390, 199, 553. Chicago, etc., E. Co. ». Witty, 352. Chlckering V. Bobinson, 150, 4S1. Chldsey v. Canton, 136. Child V. Boston, 295. Child V. Hearn, 507. Childrey v. City of Hantington, 36. Childs V. Drake, 286. Childs V. Hearn, 132. Chiles V. Garrison, 266.. Chilton V. Union Pac. By. Co., 661. ChlBholm V. Northern Fac. B. Co., 117. Chope V. City of Enreka, 137. Christian v. Colambns & B. By. Co., 201, 654. Christian v. Erwin, 461. Christian v. Illinois Cent. E. Co., 162, 166, 485. Christian v. St. Paul, etc, B. Co., 319. Christie v. Griggs, 367, 393, 523. Christie «. Sawyer, 437. Christopher v. Van Liew, 451. Chrocheron v. N. S. S. I. F. Co., 398. Chrystal v. Troy & B. E. Co., 514. Church V. Mansfied, 209. Churchill ». Hulbert, 80. Churchman v. Kansas City, 696. Churnot v. Larson, 110, 125. Cincinnati v. Stone, 216. Cincinnati, etc., B. Co. v. Adams, 6.'!8. Cincinnati, etc., E. Co. v. Barker, 28, 89. Cincinnati, etc., B. Co. v. Butler, 472, 602, 504, 605. ClnclDnntl, etc.B. Co. v. Carper, 380 Cincinnati, etc., K. Co. v. Claire. 489. Cincinnati, etc., B. Co. v. Dnfrain, 379. Cincinnati, etc., E. Co. v. Eaeton, II. Cincinnati, etc., B. Co. v. Hildreth. 112. 119. Cincinnati, etc., B. Co. v. Howard, 499. Cincinnati, etc , R. Co. v. Ka'isen, 40. Cincinnail, etc.. B. Co. v. McMuDen. 555. Cincinnati, eic, E. Co. v. Xolthenins, 473. Cincinnati, etc. B. Co. v. lYewitt, 638. Cincinnati, etc., B. Co. v. Smith, 112. Cincinnati, etc., B. Co. v. Smock, 86. Cincinnati, etc., E. Co. v. Stanley, 472. Cincinnati, etc., B. Co. v. Wood, 115. Circlevllle v. Nendlng, 141, 219, 292. Citizens Bank v. Howell, 443. Citizens Bid., etc., Aas. v. Corlell, 321, 325, 326. Citizens Loan Ass. v. Lyon, 325. Citizens St. By. Co. v. Spahr, 376. Citizens' St. B. Co. v. Stoddard, 620. Citizens' St. By. Co. v. Twiname, 480. City Council at Augusta v. Hudson, 299, 470. City Council of Montgomery v. Wright, 315. City By. Co. v. Lee, 377. City of Abilene ». Gowperthwait, 219, 319. TABLE OF CITATIONS. 615 References are to Pages. city of Abingdon v. McGrew, 473. Oily of Albany v. Waterrolller T. & R. Co., 35. City of Altoona V. Lotz, 315. Clt7 of Atchison V. Rosa, 322, 603. pity of Atlanta v. Bacbanan, 144. City of Atlanta v, Martin, 307. City of Atlanta v. Wilson, 33. City of Anstln V. Bltz, 2, 318. City of Beardstown r. Smith, 464, City of Birmingham v. Lewis, 218. 596. City of Birmingham v. McCray, 292. City of Bloomlngton V. Chamberlain, 319. City of Bloomington V. Ijegg,321. City of Bonbam ti. Crider, WD. City of Boston,iv. Crowley, 144. City of BniTalo v. Clement, 222. City of Centralla v. Kronse, 503. City of Cbampaign v. Forrester, 305. City of Champaign v. Jones, 311,464 City of Cblcago v. Bigsby 313. City of Cbioago v. Chase, 306. City of Cblcago «. Farrell, 318. City of Chicago v. Martin, 308. City of Cblcago v. McLean, 596. City of Chicago «. Powers, 321. City of Cblcago ». Starr, 621. City of Chicago v. Steams, 464. City of Colmnbna v. Strsssner, 314, 321, 472. City of Covington v. Geylor, 8. City of Crawfordsville v. Bond, 95. City of GrawfordsTlUe v. Smitb, 33. City of Delphi v. Lowery, 321. City of Denlson ». Sanford, 314. City of Denver v. Capelll, 304. City of Denver v. Deane, 320. City of Denver v. Dansmore, 144. City of Denver v. Bbodos, i)5. City of Denver v. Solomon, 105. City of Brie v. McGlll, 316. City of Enreka v. Merrifleld, 535. City of Evans vllle». Decker, 94, 95, 304. City of Felora ». Naney, 308, 314. City of Fort Wayne v. Breese, 314. City of Ft. Wayne v. Duryee, 319. City of Ft. Wayne v. Patterson, 319. City of Ft. Wortb v. Johnson, 314, 321. City of Friend V. Ingersoll, 595. City of Frostbnrg v. Dnffy, 305. City of Galesbnrg V. Benedict, 464. City of Galveston v. Smltb, 317. City of Gosben r. Myers, 144. City of GreensboToagb v. Mc61bbony,S95. City of Griffin r. Johnson, 319. City of Horton v, Trompeter, 480. City of Ironton v. Eelley, 141, 218. City of JoUet v. Blower, 301. City of Joliet v. Harwood, 305. City of Joliet v. MeCranev, 307, 318. City of Joliet v. Seward, 305. City of Kansas v. Manning, 317. City of Kearney v. Thoemason, 312. City of Keoknk v. Independent District of Eeoknk, 309, 310. City of Kinsley v. Morse, 314. City of La Fayette v. Larson, 321. City of Lafayette v. Nagle, 302. City of Lafayette v. Rose, 306, City of Lafayette v. Tlmberlake, 306. City of Laniirk v. Dongtaerty, 465. City of Lancaster v. Kissinger, 36. City of La Salle v. Porterfleld, 305. City of Lewlstoo t>. Bootb, 110. City of Lincoln t>. Beckman, 592. City of Lincoln v. Calvert, 318. City of Lincoln v. Smith, 24, 306, 321 City of Lincoln v. Walker, 471. City of Logansport v. Dick, 219, 305. City of Logansport v. Justice, 320. City of Mollne v. McKlnnie, 224. City of Mnrpbysboro v. Baker, 318. City of Mnrpbysboro v. O'Riley, 318. City of Mnrpbysboro v. Woolsev, 515. City of Mt. Garmel v. Howell, 44. City of Mt. Vernon v. Brooks, 314. City of Ifew Albany v. Ray, 304. City of Newark v. Delaware L. & W. R. Co., 139, 143. City of Newport v. Miller, 319. City of New Wesmlnster v. Brlghonse, 302. City of Nortb Vernon v. Voegler, 71, 301, 302, 303. City of OIney v. Riley, 295. City of Omaba v. Ayer, 315, 471. City of Omaha v. Cunningham, 141. City of Omaba v. Jensen, 292. City of Ottawa v. Strlcklln, 319. Clly of Pekin c. McUabon, 513. City of Peoria ti. Walker, 314. City of Philadelphia v. Gilmartin, 29. City of Fhiladelnbla v. Smith, 319. City of Portland v. Taylor, 306. City of Qnlncy v. Barker, 316. City of Richmond «. MnlhoUand, 315. City of Rockf ord v. Hallenbeck, 24. City of Salina v. Trosper, 322. City of Sandwich v. Dolan, 314, 315. City of Scranton v. Hill, 316. City of Seymonr v. Cnmmlns, 304. City of Sherman v. Connor, 692. City ot Sherman v. Nairey, 144. City of 'Sherman v. Williams, 306. City of Sterllne v. Scblffmacker, 219. City of Sterling v. MerriU, 318. City ot Streator v. Hamlltlon, 322. City ot Terre Hante v. Hudnnt, 93, 301. City of Xexarkana v, Talbot, 301. City of Topeka V. Sherwood, 322. City of Valparaiso ». Cartwrlgbt, 304. City of Vandalia v. Bopp, 24, 307. City of Vlcksbnrg v. McLaln, 305, 613. City of Wabash v. Carver, 146. City of Wabash v. Sonthwork, 309. City of Warsaw v. Donlap, 319. Clancy v. Byrne, 106. Clapp 17. Kemp, 216. Clapp V. Mear, 280. Clapp V. Minneapolis & St. L. By. Co., 561. Clapp V, Town of Ellington, 146. Clapper v. Town of Waterford, 137. Clare v. Uclntire, 284. Clare v. National City Bank, 534. Clark V. BIythIng, 588. Clark V. Bnms, 407. Clark V. Chambers, 31, 141, 276, 286, 288, 519. Clark V.Clark, 257. Clark V. City of Manchester, 76, 639. Clark t>. Falrley, 598. Clark V. Famous S. & 0. Co., 483. Clark V. Fry, 138, 141, 218. Clark V. Garfleld,263. Clark i>. Koehler,2C6. Clarkv. Lincoln Co., 136. Clark V. Missoorl Pac. By. Co., 601. Clark V. New York, etc., B. Co., 466, 541. 616 TABLE OP CITATIONS. Beferences are to Pages. Clark V. Nortbern Fac. B. Co., 505. Clark V. St. Louis, etc.,B. Co., 26i. Clark V. St. Faol, etc., B. Co., 193, 491. Clark t>. Spicer, 451. Clark v.etevens, 129. Clark V. Village ot North Mnskegon, 295. Clark V. Wilmington & W. E. Co., 40. Clarke v. Md. By. Co., E91. Clarke v. Gliicago, etc., U. Co., 87. ClarkBon v. Mnsgrave, 240. Classman v, Merkel. 435. Cla; V. Central B. & B. Co., S41. Clay V. Wood, 63, 65. Clayards v. Dethlek, 479, 481, 498. Clayf ord v. U. E. Electric TeL Co., 698. Clayford v. Wilbnr, 423. Olaypool V. Giah, 432. Clayton v. Hnnt, 342. Cleary e. Oceanic Steam NaT. Co., 73. Cleghorn v. New Tork, etc., B. Co., S8S. Clement v. Canfleld, 372, 373. Clement v. W. U. Tel. . Selden, 131. ColUs V. Selden, 3, 4, 11, 18, Colorado By. v. Holmes, 162. Colrlck V. Swinbnrne, 97. Oolton V. Cleveland, etc., B. Co., 361. Colton V. Onderdonk, 287. Colton V. Wise, 60. Colnmbns, etc., B. Co. r. Farrell, 393. Columbus & W. By. Co. v. Bradford, 188. 637. Columbus A W, By. Co. o. Ludden, 310. Colvin V. Feck, 689. Commercial Bank v. Barksdale, 160, 452. Commercial Bank v. Union Bank, 143.. Commercial Bank v. Vamnm, 162. Commissioners of Highways v. Martin, 136. Commonwealth v. Allen, 61. Commonwealth v. Barrett, 117. Commonwealth v. Boston, etc., B. Co., 310, 381. Commonwealth v. Harmer, 13. Commonwealth v. Fetree, 257. Commonwealth v. Fierce, 121. Commonwealth v. Thompson, 421. Concord, etc., B. C. v. Forsaitb, 339. Condlct V. Grand Trnnk B. Co., 18, 358. Cones V. Cincinnati, etc.. By. Co., 499. Cones V. Com'rs. Benton Co., 136. Congdon v. Central, etc, B. Co., 113,120. Congdon v, Howe Scale Co., 571. Congress, etc.. Spring Co. v. Edgar, 125, 127. Oongreve v. Morgan, 103, 310. Congreve w. Smith, 82, 102, 219, 267, 271. Conklln v. Thompson, 286. Connelly v. N. T. C, etc, B. Co., 60. Conner V. Citizen's St. By. Co., 178, Connolly v. City of Waltham, 189. Connolly v. Warren, 364. Connor v. Chicago, etc., B. Co., 218. Connors v. Burlington, etc., B. Co. 637. Conover v. Pacific Exp. Co., 317. Conradt v. Clanve, 278. Oonroy v. Vnloanlron Works, 191, 196. Consolidated Coal Co. v. Haenni, 696. Consolidated Coal Co. v. Wombacker, 173. Consolidated Ice Machine Go. v. Keitei, 205. Converse v. Walker, 76. TABLE OF CITATIONS. 617 Beferences are to Pages. Conway v. Grant, 2S3. Conwell V. Yoorhees, 450. Cook V. Cbamplaln Transp. Co., 89. Cook V. Chicago, etc., Ky. Co., 339. Cook V. City of MUwankee, 311-312. Cook V. Clay Street Hill B. Co.,S64. Cuok V. Johnson. 484. Cook V. Montague, 113. Cook V. Palmer, 152. Cook V. Parkham, 485. Cook o. Waring, 128, 130. Cook V. Wilmington City E. Co., 479. COOLBY ON TOBXS (3D £D.), 1, 49, 89, 125, 2U6, 224, 283. Cooley V. Freeholders of Bssez, 135. Coombs V. Nev Bedford C. Co., 211. Coomes v. Honghton, 215. Cooper V. Lake Shore & M. 8. B. Co., 554. Cooper V, Mills Connty, 146. Cooper V. Mnllins, 596, 697. Cooper V. Stephenson, 438.- Coops V. Lake Shore & M. S. By. Co., ^179. Coots V. District of Columbia, 314, 598. Copley V. Sew Haven, etc., B. Co., 472. CopWood V. Baldwin, 431. Corbett v. Anderson, 692. v Corbin v. American MU18.213, 220. Corby v. Hill, 17, 79. Cordell v. N. T., etc., E. Co., 505. Corliu V. West End St. By. Co., 376. Corliss ti. Smith, 127. Corcoran t>. City of Benicia, 302. Comman v. East By. Co., 389. Cornwall v. Charlotte, etc., B. Co., 479. Cornwall v. Sullivan B. Co., 111. Corrigan v. Union Sng. Befinery, 64. Corry v. G. W.Ey. Co., 113. Corry v. Thames Iron Works, 357. Corwiu V. New York, etc.. B. Co., Ill, 120. Corya v. Oorya, 258. Cosby V. Commonwealth, 449. Cosgrove V. Ogden, 614, 517,619. Coskery v. Nagle, 411, 414. Cosnerv. Centerville, 31], B16. Costello V. Cooshohocken, 304. Cosnilch V. Standard Oil Co., 524. Cotterill v. Chicago, etc., B. Co., 487. Cotton V. Wood, 63, 625. Cotton Press Co. v. Bradley, 542, 644. Conch V. Steel, 289, 293, 448. Coulson V. Panhandle Ifat. Bank, 590. ConnseU v. Hall, 495. County of Knox v. Honteomery, 146. Connty of Lehigh v. HoSort, 145. Connty Court Old Chester, 284. County Comr's Prince George's Co. v. Burgess, 146. Connty Com. Hartford Co. «. Hamilton, 641, 642. Connty Comr's v. Wise, 144. Coupland v. Hardlngham, 102. Conpland v. Honsatonic B. Co., 351. Covert V. Cranford, 97. Covert V. Valentine, 97. Covington Transfer Co. v. Eelly, SOS. Cowan V. Bond, 339. Cowden v. Pacific Coast S S. Co. 339. ' Cowles V. Bichmond, etc., B. Co., 493. Cowley V. Sunderland, 322. Cox V. Barbidge. 282, 691. Cox «. Delmas, 432. Cox V. G. W. By. Co., 235. Cox V. Leech, 438. Cox V. Livingston, 429, 431. Cox V. Peterson, 337. Cox«. Sullivan, 427. Coxe V. Heisley, 347. Coyle V. Chicago, etc., B. Co., 114. Cracknell v. Thettord, 298, 299. Craddock v. Louisville & N. B. Co., BOl. Craft V. Parker, Webb & Co., 50, 489. Crafter v. Met. By. Co., 389. Crafts V. Waterhonse, 367. Cragln v. New Tork, etc, B. Co., 851. Craig V. Chambers, 422. Craig V. New York, etc., B. Co., 605. Craig V. Watson, 433. Cramer v. Uppenstein, 454. Crane v, Moses, 258. Crane v. Stone, 454. Cranmer v. Building & Loan Assn., 432. Crawford v. International Hi G. K. K. Co., 690. Crawford v. Bailroad Co., 360. Crawford v. Smith, 292. Crawford i>. Wilson, 82. , Crawfordville v. Smitli, 28. Creed v. Pennsylvania, etc., B. Co., 383. Cregin v, Brooklyn Crosstown B. Co., 543. 546. Crenshaw v. Ullman, 224. Crescent v. AnAeiBon, 508. Cressey v. Northern, etc., B. Co., 112, 120. Cressy v. HestonvlUe, 142. Crippa V, Judge. 229. CrocKer «. Gullifer,21L Croekett v. Calvert, 214. Croft V. Alison, 203. Crofts V, Waterhonse, 393. ^ Crogan v. Scbiele, 72, 82. Croker v. Chicago, etc., B. Co.,207. Cromarty v. City of Boston, 313. Cross V. California St. C. By. Co., 35. Cross V. Lake Shore & M, S. By. Co., 394. Crosse v. hmith, 254. Crotty V. Eagle, 437. Crouch V. G. N. By. Co., 334, 358. ^ Crowder v. Long, 452. Crowhnrgt v. Amersham Burial Board, 92. Crowley v. St. Louis, etc., Ry. Co., 483. Cruikshank v. Goodwin, 434. i Crnmpley v. Hannibal & bt. J. B. Co., 471. Cmtchfield v. Bichmond, etc., B. Co., 494. Cuddy V.Horn. 608. CuS V. Newark, etc., B. Co., 215, 216, 219, 222 Culbreathy v. Fhila., etc., B. Co., 340. Cullen v. Delaware & H. C. Co., 502. Cnllin V. Morris, 445. Cumberland, etc. B. Co. v. Fagenbaker. 640. Cumberland, etc.. B. Co. v. Mangans, 379, 380. Cumberland v. Willison, 302. CammiDgs v. The National Fnmace Co., 629,632. Cnmmins v. Heald, 433. Cnmmins v. McLean, 432. Cummins i;. P. C. & St. L. E. W. Co., 123, 250. Cniiningham v. Bucklin, 449, 460. Cunningham v. Lvness, 466. Cnrley v. Illinois Cent. E. Co., 638. Onrrlco v. West Ta. C. & P. By. Co., 378. 618 TABLE OF CITATIONS. Beferences are to Images. Onrrlerv. Boston Music Hall Assn., 73, 268. Otiitis V. Drlnkwater. 392. Curtis V. Eastern B. Co., 95. Curtis ». Hiley.lOS. Curtis V. Mills, 131. Curtis V. Murphy, 417. Curtis V. Bocbester, etc., R. Co., 527, 596. Cusicl: V. Adams, 278. CnthbertsoD v. Parsons. 214. Cutler SI. Bonney, 411, 412. Cutter V. Hamlen, 108. Cuyler v. Dieter, 484. Czech V. GenetaX Steam Navisatlon Co., 623, 525. Czezewzka v. Benton Bellefontalne By. Co., 461. D. Dacey v. Old Colony B. Co., 538. naggettv. City of Cohoes, 304. Dahlberg v. Minneapolis St. By. Co., 63, 378. Dahlstrom v. St. Louis, etc.. By., 56. Dalay v. Worcester, 317. Dalon V. Savage, 103. Dale V. St. Louis, etc., B. Co., 493. Dallas Consolidated Fraction By. Co. v. Hurley, 471. Dallas, etc., B. Co. v. Splcker, 471,662, 554. Dalton V. 8. E. By. Co., 644, 545. Daltod V. State. 450. Dalton V. Upper Tyrone Tp., 144. Dalton t>. West End St. By. Co., 437. Daly V. Butchers', etc.. Bank of St. Louis, 443. Daly V. New Jersey, S. & I. Co., 638, 541. Daly V. Norfolk, etc.,B. Co., 618. Damon v. Boston, 311. Damon v. Soituate, 480. Damont v. New Orleans, etc., B. Co., 64, 379. Damour v. Lyons, 478. Dampman v. Pennsylvania B. Co., 627. Dana v. National Bank of the Bepubllc, 443. Daniel v. Met. By. Co., 3, 24, 48, 389, 392, 468, 641, 652. Daniels v. Ballentlne, 36, 47. Daniels v. City of London, 435. Daniels v. Clegg, 64. Daniels v. Hart, 372. Daniels v. New York, etc, B. Co., 78. Daniels v. Potter, 102. Daniels v. Savannah, etc.. By. Co., 641. Danner v. South Carolina By. Co., 121, 461,628. Dansey v. Bichardson, 411. Danville, etc., Tp. Co. v. Stewart, 508. D'Arc V. L. & N. W. By. Co., 347, 371. Darke v. Martyn, 258, 263. Darling, v. Bangor, 482. Darling v. Passadumkeag Log-Driving Co., 506. Darling v. Westmoreland, 321. Darnaby v. Watts, 262. Dash V. Fltzhugh, 72. Dartnall v. Howard, 438, 457. Daub V. Yonkers B. Co., 374. Daube V. Tennlson, 517. Davenport v. Buckman, 314, 503. Davey v. L. & 8. W. By. Co., 48, 399, -407, 478, 485, 498. Davidheiser v. Bbodes, 94. Davidson v. Cornell, 494. Davidson v, Fischer, 107. Davidson v. Heffron, 430. Davidson it. Monkland By. Co., 513. Davidson v. Portland, 40, 481, 482. Davidson v. Bozter, 436. Davidson ti. Seymonr, 453. Davidson v. Southern Pac Co., 596. Davie V. Levy, 215. Davles v. Mann, 459, 460, 461, 462, 517. Davis V. Berwick, 229. Davis V. Central Congregational Society of .lamalca Plain, 72. Davis V. Central Vermont B. Co., 348. Davis V. Chicago, etc., B. Co , 75, 278. Davis V. Clinton Water Works, 13. Davis V. Corry, 321. Davis V. Gay, 419. Davis V. Graham, 495. Davis V. Guarnlerl, 286, 506. Davis «i. Hall, 435. Davis V. Hannibal & St. Jo. By. Co., 117. Davis V. Jacksonville S. Line, 361. Davey ». Jones, 443. Darwin v. Charlotte, etc., B. Co., 466. Davis V. Lee, 433. Davis V. L. & Blackwall By. Co., 67, 389. Davis V. Michigan Bell Telephone Co., 309. Davis V. New York, etc., B. Co., 499, 502. Davis V. Severance, 433. Davis V. Sommerville, 40. Davis V. Southern Pac. Co., 252. Davis V. Splcer, 426. Davis V. St. Louis, etc.. By. Co., 637. Davis V. Town of Bumney, 539. Davis «. Wabash, etc., B. Co., 336. Davis V. Wlllan, 342. Davis V. Williams, 37. Dawkins v. Gulf, etc., B. Co., 201. Dawson v. Chamney, 410, 412. Dawson V. Midland By. Co., 110. Dawson v. M. S. & L. By. Co., 623. Dawson V. St. Louis, etc., B. Co., 347, 362,354. Dax V. Ward, 438. Day V. City of Mt. Pleasant. 141. Day V. Essex Electric St. By. Co., 78. Day V. Highland St. B. B. Co., 40. Day V. Milford, 306. , Day V. New Orleans, etc, B. Co., 123. Day V. Beynolds, 12. Dayrell v. Tyrer, 213, 214. Deverenx v. Bncklev, 368. Deville V. Southern Pac. B. Co., 283. Devlin v. Smith, 222. DeVoln V. Michigan Lumber Co., 210. Devol II. YanVranker, 587. Dewey v. Leonard, 85. Dewire v. Bailey, 315, 479. Dewitt V. Oppenhelmer, 453. Dean v. Benn, 96. Dean v. Chicago, etc., B. Co., 122. Dean v. Bandolpn, 305. . Deane v. Clayton, 4, 286. Dearborn v. Dearborn, 431. Dearth v. Baker, 126, 282. Deate ti. Eeate^7. Debevolsew. N. Y. L. E., etc., B. Co., 555. Defer o. Cltv of Detroit, 306. Degg V. Midland By., 80, TABLE OP CITATIONS. 619 Beferences are to Pages. DeGray v. Aiken, 77. Dehring v. Comstock, 71. SeHam v. Mexican Nat. R. Co., 65$. Deikman v. Morgan's, etc., Co., 472. OeiBen v. Chicago, etc., By. Co., S45. DeJarnette v. DeJarnette, 263. Delaney V. Pennsylvania B. Co., 73. Delano v. Case, 32i. Delaware, etc., B. Co. v. Converse, 500. Delaware, etc.. Bo. Uo. v. Heffernan, 600. Delaware, etc., B. Co. t>. Jones, 513. Delaware, etc., B. Co. v. Kapheys, 527, 528. Delaware, etc., B. Co. c. Salmon, 38, 88, 89. Delaware, etc., R. Co. v. Toffey, 505. Delaware, etc., B. Co. v. Trantweln, 40. Delger v. St. Paul, 306. Dells V. StoUewerfc, 212. DeMay v. Bnberts, 422. DeMaby v. Morgan L. & T. B. &S. S. Co.,- 35. DeMenacho v. Ward, 339. Demlng r. Storage Co., 31. DeMoranda v. Duokin, 452. Denham v. Trinity Co. L. Co., 489. Denison v. Seymonr, 252. Denman v. St. Panl, etc., B. Co., 52. Dennlck v. Central B. B. Co., 640, B55. DennlBon v. Lincoln, 129. Dennis v. Hnyck, 60. Dennis v. Sipperby, 138. Dennis v. Whetham,,448. Denny v. Correll, 133. Denny v. N. T. Cent. B. Co., 47, 338. Densmore Oil Co. v. Densmore, 333. Denton v. Embnry, 432. Denver & B. F. Bspld Transit Co. > . Dwyer, 462. Denver, etc., B. Co. v. Conway, 287. Denver, etc., B. Co. v. De Graff, 88. Denver, etc., E Co. v. Morton, 491. Denver, etc., B. Co. v. Bobbins, 49, Denver, etc., B. Co. v. Byan, 470. Denver, etc., B. Co. v. WUuon, 653. Denver Tramway Co. v. Beld, 486, 503. Deppe V. C. B., I. & P. E. Co., 246. Derby v. Kentncky Cent. B. Co., 541. Derk V. Northern Cent. By. Co., 601. De Bonfigny v. Peale, 438. Derry v. Fletner, 27. Derwort v. Loomer, 392, 436. Detroit V. Fatnam, 307. Detroit, etc., B. Co. v. Cnrtls, 376. Detroit, etc., B. Co. v. McKenzie, 360. Detroit, etc., B. Go. v. Van 8teli. Erhardt, 121. Donnelly v. Brooklyn City E. Co., 51. Donnelly v. Hufschmldt. 601. Donner v. Madison County Bank,.443. Donney v. Hendrie, 377. Donoho V. Vulcan Iron Works, 513. Donohnev. St. Louis, etc.. By. Co., 500. Donovav. Oakland &B.B. T. Co., 226. Donovan v. Hannibal & St. Joe E. Co.,471. Donovan v. Laing, 214. Dooley v. City Merlden, 311. Dooleyv. Missouri Pac. By. Co., 118. Dooley «. Sullivan, 306. Doorman v. Jenkins, 466. Dorchester, etc.. Bank v. New England Bank, 443. Dorman v. Ames, 105. Dormont v. Furness By. Co., 296, 299. Dorr V. Mickley, 465. Dorr V. New Jersey Steam Nav. Co., 386. Dorrlty v. Eapp, 8. Dorsey v. Phillips, 493. Doster V. Scully, 428. Donb V. Barnes, 436. Dougan v. C. T. Co., 398. Dougherty v. Chicago, etc., B. Co., 379. Dougherty v. Horse Heads, 306. Dougherty v. Missouri B. Co., 874, 489, 623. Dougherty v. B. Co., 64. Dougherty v. West Superior I. & 8. Co., 489. Douglass V. Hannibal & St. J. B. Co., 354. 620 TABLE OF CITATIONS. Beferences are to Pages. Donfflasa v. Slonx City Ey. Co., 373. Duugbty V. Flrbank, 235. ■Dowe V. Flint & P. M. E. Co., 498. 1)0 well V. Vlcksbnrgh, 53. Dowllng V. Allen, 465, Downey v. Cbesapeake ftO. K, Co., 479. nowning v. Herrick, 451. Doyle V. Blake, 265. Doyle V. Union Pac. Ey. Co., 107. Doyle V. WragK, 523. Dr. Harter Medicine Co. o. Hopkins, 592. Drake V. Chicago, etc., E. Co., 93, 96. Drake v. Elely, 42. Drake v. Lady Ensley C. I. & B. Co., 98. Drake v. Lowell, 305. Drake v. Mount, 126. Drake v. New York, etc., Ey., 96. Drake v. FittsburKh, etc., E. Cb., 112, 121. Drake v. Sykes, 452. Dressell v. Kingston, 141, 142, 218. Drew V. New Elver Co., 139. Drew «. Sutton. 316,317. Drnmmond v. Crane, 692. Dublin W. & W. Ey. Co. v. Slattery, 25, 279, 391, 897, 106, 477, 485, 488, 490. Dn Bois V. Becker, 426, 493. DabolB V. City of Kingston, 307. Dubuque Wood, etc., Ass. v. Dabngne, 86, 48. Duckworth v. Jotmson, 543. Dudley V. Holies, 66. Dudley B. Camden, etc.. Ferry Co., 59. Dudleys. Smith, 367. Duff V. The Great Ni,Ey. Co., 388. DuSordv. Smitb, 263. Duffy V. Chicago, etc., E. Co., 500. Duffy V. City Dubuque, 316. I Duffy ti. Thompson, 364. Dugginsv. Watson, 612. Dun V. Seaboard, etc., B. Co., 62, 378. Dunblerv. Day, 412. Duncan v. Thwaites, 134. . Duncan v. Wyait Park Ey. Co., 54, 379. Dundas v. Lansing, 315, 322. Dundee, etc., Co. v. Hnghes, 12, 430. Dundonald v. Masterman, 429. Dunham v. Boston & &. B. Co., 340. Dunham v. Eockliff, 64. Dunham Towing & W. Co. «. Dandelin, 485. Dunkirk, etc., B. Co. v. Mead, 110, 111, 119. Dunlap V. International Steamboat Co., 365. Dunlap V. Wagner, 41. Dnnlap v. Monroe, 225, 450, Dunn V. Birm,ingham Oanal NaT. Co.,294. Dunn V. Grand Trunk E. Co., 383. Dunn V. New Haven Steamboat Co., 364. Dunnigar v. Chicago, etc.. B. Co., 117. Dunning v. Earl of Gainsborough, 262. Duntley v. Boston & M. 362. Durant «. Palmer, 82, 102, 140. Durbin v. Oregon By. & Nay. Co., 606. Durden v. Barnett, 126, 127. Dnrfee v. Johnstown, etc., E. Co., 371. ' Dui gin V. American Kxp. Co., 344. Dnrgtn v. Neal, 602, Durham v. Wilmington, etc, B. Co., HI, 122. Dush V. Fitzhngh, 587. Dntzi V. Gelsel, 485. DnvHlv. Hnnt, 641. Dwightj). Simon, 432, 433. Dwyer v. Chicago, etc.. By. Co., 542, Dwyer v. New York, etc., Ey. Co., 879, 480. Dwyer v. Ballroad Co., 619. Dwyer v. Woulfe, 452. Dyer v. City of St. Paul, 9, 302. Dyer v. Erie E. Co., 602, 508, 509. Dyer v. Eiley, 282. Dygert v. Schenk, 103. Dyfiema v. Minneapolis, etc.. By. Co., 692. E. Eakin v. Brown, 101. Eames v. Balem, etc., B. Co., Ill, U4.' Earing v. Lanslngh, 64, 526. Earl V. Crouch, 77. ) Earl V. Tan Alatlne, 126. Karl ot Gainsborough v.' Westcombe Terra Cotta Clay Co., 262. Early v. Lake Shore & M. S. By. Co., 395. Easley v. Missouri Pac. By. Co., 501. East Had dam Bank v. Scovll, 443, 452. East Line & Bed B. Co. v. Gulbertson. 373, 640. East Line & Bed B. By. Co. v. Bushing, 44. Eastern Counties By. Co., Exparte, 265. Eastman v. Amoskeag Manuf. Co., 105. Eastman v. County ot Clackawas, 146. Eastman v. Meredith, 135. Kaston V. Ballroad Co., 216. East St. Louis Connecting By. Co. r. Wabash, etc.. By. Co., 360. Eaxt Tenn., V. & 6. E. Co. c. Aiken, 466. East Tennessee, etc., B. Co. v. Dnffield, .496. East Tenn., etc, B. Co. v. Fain, 466. East Tenn., Va. & G. B. Co. v. Gurley, 466. East Tenn., T. & G. E. Co. v. Hale, 354. East Tenn., V. & G. E. Co. v. Hesters, 45,88. East Tenn., V. Sb 6. B. Co. v. Hull, 466. East Tennessee, V. & G. B. Co. v. Kelly, 310. East Tenn., V. & G. B. Co. v. Lee, 589. East Tenn., T. & G. B. Co. v. Lockhart, 34. East Tenn., V. & G. E. r. Maloy, 527, 552. East Tenn., Y. & G. B. Co. v. Markens, 508. East Tenn., Va., etc., B. Co. v. EuBb, 479. East Tenn., Va., etc., B, Co. v. Tepplns, 562. East Tenn., T. & 6. E. Co. «. Watson, 390 East Tennessee, etc, B. Co. v. Whittle, 851, 352. Eaton V. Boston, etc., B. Co., 38. Eaton II. Oregon Ey. & Nay. Co., 122, Eaves v. Hlckson, 259. Eccles V. Stephenson, 429. Ecbol V. LonisyiUe & N. B. Co., 369. Eckerd v. Chicago & N. W. Ey. Co., 479. Eckert v. Long Island B. Co., 487. Eckert v. St. Louis, etc, B. Co., 4S2. Eddy V. Bodkin, 491. Eddy V. Kinney, 120. Eddy V. Lafayette, 88. Eddy V. Powell, 601. Eddy V. Wallace, 380. TABLE OP CITATIONS. 621 Beferences are to Pages. Eden v. Lexington, etc., B. Co., 546. Bells V. St. Ixiuts, etc.. By. Uo., 347, 352. Edgerton v. N. T., etc., K. Co., 377, 5-29. l^.dmuiidB V. Orpnehaw, 262. Edmondsou v. Kentacfcy Cent. By. Co., 638. Edwards v. Chalotte, etc., R. Co., 93. Edwaids v. Veigason, 449. Edwards v. Hannibal, etc., B. Co., 113. Edwards v. N. Y. etc., By. Co.,103,lU4, 107, 268. Kdnaide v. Fbiladelpbia & B. B. Co., S5. Kdwaids V. Three BiTers, 320. Ehrgott V. Uayor, etc^ Kew Yoric, 41, 698. Elirlsman v. East Harrisbnig City Pass. Ky. Co., 499. Eickel V. Senhenn, 489. Elghmy v. U. P. B. Co., 208. Elkenberg v. Bazaar, 137. Elder v, Lykens Val. Coal Co., 49. Elgin V. Kimball, 302, 3M. Elkbart v. KUler, 308. Eikington v. HoUand, 427, 438. Elklns V. Boston, etc., B. Co., 603. Elkins «. McKean, 13, 287. EUet V. St. LOQls, etc., B. Co., 391. Elliott V. City of OU City, 303. Elliott V. Fltcbbnrg B. Co., 97. Elliott V. Hall, 11. Elliott V. Herz, 131. Elliott V. Newport SL By. Co., 377. Elliott V. St. Lbnis, etc., B. Co., 640,641. El/UOTT'S BOADS & 8TKEETS, 80, 138, 144, 305, 306, 307. Ellis V. American Tel. Co., 694. Ellis V. Gt. W. By. Co., 25, 60. Ellis V. Lake, Shore & M. S. B. Co., 499. Ellis V. McNaiishton, 223. Ellis t/. Ohio lafe Ins. Co., 442. Ellis V. Sbeffleld Gas Co., 221, 224. Elmendorf v. l.anclng, 268. Elmore v. Kaugacnck B. Co., 360. Elster V. City of Sprlngfleld, 97. Elston V. Schilling, 430,431. Ely V. Des Moines, 316. Ely V. St. Loals, etc., B. Co., 391. Ely V. Thompson, 461. Elyton Land Co. v. MteKea, 489, 609. Ember v. Town of WallkeU, 136. Emblem v. Myers, 687. Emerson v. Gas. Co., 290. Emery v. Minneapolis L Ex., 72, 73. Emery V. Parrott, 333. Emma Silver Mining Co. v. Grant, 333. Emm erson v. St. Lonis & H. By. Co. , 115. Emory v, Eddis, 41. Emry v. Balelgb &6. B. Co., 488,489. Eudora v. MUier, 144. Encel V. Enreka Clnb, 215. Engel V. Smith, 280, 489. Engle V. Chicago, etc.. By. Co., 88. Enrlgbt v. San Francisco., etc, B. Co., 116. Ensign V. County of LIvlugston, 145. £. O. Stanard Milling Co. v. Wblte Line C. T. Co., StL Erie By. Co. v. Lockwood, 3t>Q. Erie City Pass. By. Co. s. Scbnster, 515. Ernst V. Hndson BIver.B. Co., 478. Erskine v. Adease, 92, 103. Erwln «. Blake, 433, 436. Estelle V. Lake Crystal, 308. Eureka Co. v. Bass, 495. Eureka Fertilizer Co. v. Baltimore, C. S. & B. Co., 588. European, etc., E. Co. v. Poor, 824. Evans v. Adams Exp. Co., 478. Evans v. City Uttca, 316. Evans v. Davison, 201. Evans v. Fltcbbnrg B. Co.„3Sl, SS2. Evans & Howard F. B. Co. v. St. L., etc., B. Co., 602. Evans v. Interstate B. T. By. Co., 394. Evans v. Budy, 591. Evans v. St, Paul, etc., B. Co., 117. Evans v. Watrons, 431. Evansich v.G C. & S. F. By . Co., 275, 519. Evansville, etc., B. Co. v. Crist, 141. Evansville, etc., B. Co. v. GrifSn, 75. Evansville, etc., B. Co. v. HIatt, 488. Evansville, etc., B. Co. v. Kyte, 43. Evansville, etc.,B. Co. v. Mosier, 122, 295. Evansville, etc., B. Co. v. Willis, US. Evansville, etc., B. Co.v. 'Wilter, 318. Evansville, etc., E. Co. ». Wolf, 514. Jilverett v. Hydraulic Flume Co., 92. Everett v. Southern Express Co., 347. Evers v. Hudson Biver Co., 28. Evers o. Weil, 107. Bwlngu. North Versailles Tp., 60,109. Ewing V. Pittsburgh, etc., B. Co., 36. Exchange Bank v. Sutton Bank, 443. Ex parte Bailey, 229. Ex parte Ball, 549. Ex parte Belchier, 259. Ex parte Gordon, 229. Ex parte Governors of Cbrlst's Hospital, 265. Ex parte Hngbes, 229. Ex parte Norris. 266. Ex parte Ogle, 267. Ex parte Ormerod, 229. Express Co. v. Caldwell, 347, 348. Eyer v. Jordan, 102. F. Fabens v. Mercantile Bank, 461 , 462. Fabn v. Beichart, 81. Fabnenstock's App.. 265. Fail V, McArtbur, 211. Fair V. City of Philadelphia, 300, 304. Falrntaild v. Cal. Stage Co.i 392. Faircbildt). Eeitb, 449. Fairfax v N. Y. Cent., etc., E. Co., 864. Fairgrieve v. Moberly, 311. Fairlawn Coal Co. v. City of Scranton, 300. Falrmonnt R. B. v. Stutler, 368. Fake v. Addlcks, 129. Falk V. New York, S. & W. B. Co., 394. Fallon V. O'Brien, 127. Fairjoy v. Scales, 70. Fanning v. Long Island B. Co., 120. Farber v. Mo. Fac. B. Co.; 204. Parish V. Belgle, 392. Farley v. Chicago By. Co., 484. Farley v. Pickard, 129. Farlowi>. Kelly, 378. Farmer v. Crosby, 12. Farmer's, etc., Bank v. Cbamplain Transp. Co., 345. Farmer v. Concord, 135. Farnworth v. Packwood, 413. Farr v. Griffith, 692. 622 TABLE OF CITATIONS. Beferences are to Pages. Farrard v. Marshall, 6, 9. Fanant v. Barnes, 288, 457. Patris V. Habery, 379. Fash V. Eavanaugh, 100. Faulkner ■». City of Aurora, 306. Faulkner v. Wright, 337. Favre v. LoalsTlUe & K. B. Co., 63, 378, «1. Fawcett v. Dale, 450. Fawcett v. North Midland By. Co., 116. Fay V. Pacific Imp. Co., 113, 417. Fay V. Parker, 491. Fay V. Town of Lindley, 141. Federal Street, etc., B. Go. v. Gibson, 474. Feital v. Middlesex By. Co., 480. Felbum V. Peoples Palace Gar Co., 124. Fell «. Northern Pac. E. Co., 589. Fellows v.Gilhnber, 103. Fennell V. Segnin By. Co., 288. Fenneman v. Holden, 465. Fepner v. Buffalo, etc., B. Co., 341. Fentoa v. Dublin Steam Packet Co., 213. Feoffees of Ueriot's Hospital v. Boss, 208. Fergusen v. Kinnoul (Earl of), 445, 604. Fergusons. Colnmlius & B. By. Co., 78, 514. Ferguson v. Wilson, 324. Fero V. Buffalo, etc., B. Co., 90. Ferris v. Van Busklrk, 116. Fetter v. Beal, 602. Fick V. Chicago & N. W. B. Co.. 206. Ficker v. Jones, 129, 284. Field on Cokporations, 326, 326. Field V. Chicago, etc., E. Co., 346, 504. Field V. L. N. W. By. Co., 294. Fiaeld V. New Yorkl. W. E. Co., 373. Filby V. Miller, 436. Filer V. New York, etc., E. Co., 880. Filliter v. Phlppard, 81, 84. Finch V.Chicago, etc., Ky. Co., 112, 122. Finch V. The Lighter Mystic, 491. Fink V. Missouri Furnace Co., 613. Finn ». Adrian, 315. Finn v. Western E. Co., 336. Finnegan v. Tp. of Foster, 134. Finnegan v. Fall Elver Gas Works Co., 290. Finney v. Curtis, 126. Firmstone v. Wheeley, 92. Firet Nat. Bank v. Allen, 442. First Nat. Bank v. Fourth N at. Bank, 441. First Nat. Bank v. Metier, 441. First Nat. Bank^;. Sprague, 443. First Nat. Bank v. State Bank, 442. First Nat. Bank v. Villegia, 8. First Nat. Bank v. Western Union, 591. First Nat. Bank Ailentown v. Bex, 69. First Nat. Bank Carlisle v. Grabam, 69. First Nat. Bank of Greenfield v. Marieta, etc., B. Co., 363. Firth V. Bowling Iron Co., 28. 92, 109. Fischer v. Hethrineton, 436. Fishv.Eelly, 12,430. Fish V. Skttt, 132. Fisher v. Clark, 130. Fisher V. Cook, 464. Fisberv. Jansen, 103, 696. Fisher v. Kelsey, 416, 417. Fisher v. Eyle, 211, 481. Fisher v. Prowee, 467. Fisher v The Brinton, 491. Fiski). Wait, 286, 478. Fitch V. Scott, 430, 431. Fitchburg B. Co. v. Sage, 339. Fitzgerald v. Berlin, 138. Fitzgerald v. St. Paul, btc, E. Co., 112. ;116, 514, 618. Fitzpatrick v. Fitchburg B. Co., 519. Fitzsimmont v. Milwaukee E. Co., 205. Flagg V. Chicago, etc.. By. Co., 483. Flanders v. Meath, 463. Flanders v. Sherman, 434. Flannery V. W. &L. By. Co., 523. Flannigan v. American Glncose Co., 77. Flattes V. Chicago, etc., B. Co., 628. Fleck V. Furtone, etc., B. Co., 64. Fleet V. Ballenkamp, 286. Fleischner V. Citizens E. E. & I. Co., 105. Fleming!;. Pittsburgh, etc., E. Co., 531. Fleming v. The Manchester, etc.. By. Co., 369. Fleming v. Texas Loan Agency, 540. Fletcher v. Fitchburg B. Op., 606. . Fletcher v. Bylands. 83, 92, 101, 275. Fletcher ti. Smith, 29, 70, lOU. Flick V. Pennsylvania E. Co., 95. Flinuv. Fhlla.,etc.,B. Co., 384. Flinn V. St. John, 453. Fllnn V. WilmlngtOD, etc.B. Co., 386. " ■ Flint, etc., B. Co. v. Lull, 120. -' Florid. St. Louis, 612. , y] Florida v. Pullman Palace Car Co., 404..' ir Florida By. & Nav. Co. ». Webster, 383. Florida Southern By. Co. v. Hirst, SSS,/ 463. ■ ■ . ■ . Flow V. Eoberts. 103. Flower V. Bolingbroke, 434. Flower v. Ballroad Co., 201. Flowers V. S. East By. Co., 336. Floyd V. Nagle, 429. Flynn v. Canton Co., 309. Flynn v. Kansas, etc., B. Co., 494. Flynn v. Neosho, 314. Flynn v. San Francisco & 8. J. E. Co., 89. Foels V. Tonawanda, 319. Fogerty v. Jordan, 428. Foley V. Chicago, etc., B. Co., 493. Foleys;. Troy, iill. Foleyti. Wyeth, 6, 8. Follman v. Mankato, 469. Fones V. Phillips, 493. Forbes Case, 444. Forbes v. Boss, 263. Force II. Gregory, 424. Ford V. Fitchburg B. Co., 480, 495. Ford V. London & S. W. By. Co., 339, 395. Ford V. Monroe, 652. Ford V. UmatUla County, 473. Fordham v. L. B. & S. 0. By. Co., 400. Fordyce v. McCants, 644. Fordyce v. Merrill, 394. Fordyce ». Withers, 374, 596. Foreman v. Pennsylvania B. Co., 474. Forney v. Geldmacher, 32. Forshayti. Glen haver, 143. Ft. Clark St. B. B. V Fbangh, 378. Forton v. East Hampton, 319. Ft. Scott W. W. By. Co. v. Foitney, 373. Fortune v. Titainor, 208. Fort Wayne v. Coombs, 305. Ft. Wayne, C. & L. Ey. Co. v. Byerle, 537. Ft. Worth & D. C. By. Co. v. Floyd, 662. Ft. Worth & D. C. By. Co. v. Greathonse, 347, 362, 354. Ft. Worth & D. C. By. Co. v. Measles, 78. TABLE OF CITATIONS. 623 References are to Pages. Ft. Worth & D. 0. Ey. Co. v. Robeitson, 78. Foster v. Bank of London, 414. Foster v. Boston, 323. Foster v. Essex Bank, 440. Foster v. Qoddard, 65. Foster v. Jack, 432. Foster v. Missouri Fac. By. Cc, 27. Foster v. St. Lonls, etc., B. Co., 122. Foster v. Swope, 461. Foster v. Tbe Miranda, 491. Fonlkes v. Met. By. Co., 369, 882. Foalkes v. Nashville, etc., B. Co., S42. Fonntaine v. Baxley, 692. Fowler v. Baltimore & O. B. Co., 472. Fowler v. G. Wt By. Co., 369. Fowler V. liOck, 213. Fox V. Glastenbniy, 473. Fox V. Jones, 430. Fox V. Lanslngbnry, 321. Fox V. Sackett^78. Foxworthy v. Hastings, 311. Foy V. L. B. & S. C. Ey. Co., 399. Fraler v. Sears Water Co., 478. France v Gandet, 3fi8. Francis v. CockereU, 18, 220, 267, 279, 300, 304. Francis v. Dnbnqne, etc., E. Co., 341. Francis v. New York Steam Co., 4*9. Francis v. St. Louis Transfer Co., 42. Francisco v. Troy & L. R. Co., 377. Frank v. Chemical Bank, 442. Franke v. City of St. Lonls. 106. Frankboaser v. Cannon, 456. Frankland v. Cole, 438. Franklin v. S. £. Ey. Co., 343, 544. Franklin Wharf ;;. Portland, 73. Fraweek v. Beard, 453. Fray v. Voules, 436, 439. Frazer v. South & N. A. E. Co., 480. Frazler v. Brown, 97. Freeh v. Philadelphia, etc., B. Co., 471. Fredericks v. Ullnois Cent. E. Co., 76, 77. Freeholders of Sussex v. Strader, 135. Freeman v. Brebm, 437. Fkeemaiton JtrDeMENTB, 430. Freer v. Cameron, 72, -280. Fremont, F. & M. Y. B. Co. v. Marley, 95. Fremont, £. & M. Y. B. Co. i>. Founder, 116. French v. Boston, 144. French v. Brunswick, 474. French v. Detroit, etc.. By. Co., 375. French v. Yix, 222. Frick V. St. Louis, etc., B. Co., 615, 663. Friend v. Wood, 337. Frink v. Coe, 588. Frlnk v. Potter, 376, 485. Frltsch V. Allegheneyi 142. Frost V. Eastern B. Co., 76. Frost V. Plumb, 481. Fry V. Dnbnqne, etc., E. Co., .^96. Fnlka v. St. Louis & 8. F. By. Co., 375, 471. Fuller V. Bradley, 336. Fuller V. Citizens Bank, 218. Fuller V. City ol Jackson, 295, 599. Fnller v. Coates, 413, 414. Fuller V. Jackson, 308, 318, 321. Fuller v. Oneal, 265. Fnllerton v. Fordyce, 394. Fnlllam v. Muscatine, 315, 439. Falton V. Bailroad Co., 517. Fnlton Co. N. 6. Ey. Co. «. Butler, 503. Fnlton County St. B. Co. v. McConnell, 215. Fnrley ». Chicago M. & St. P. Ey. Co., 130. FnrneU v. St. Paul, 306. Furnish v, Missouri Pac. By. Co., 373. Fnrstenbnrg v. Fawsett, 692, G. Gagg V. Yetter, 85. Gahn v. Ottumwa, 612. Galllard v. Smart, 431. Galena, etc., B. Co. v. Jacobs, 464. Galena, etc., B. Co. v. Yarwood, 437. Gallagher v. Bowie, 373, 392, 393, 596. Gallagher v. Monteclto Yal. Water Co. , 96. Gallagher v. Thompson, 423, 428. GalUgan v. Metacomet Mfg. Co . , 76. Gallin v. London & N. W. Ey. Co., 342. Galloway v. Chicago, etc.. By. Co., 380. Galveston, etc., B. Co. v. Smith, 51. 367, 379. Galveston City E. Co. v, Hewitt, 520. Galveston, H. & H. Ey. Co. v. Moore, 515. Galveston, H. & S. A. Ey. Co. v. David- son, 401. Galveston, H. & S. A. By. Go. v. Ball, 346, 358. Galveston, H. & S. A. Ey. Go. v. Bowman, 339. Galveston, H. & S. A. By. Co. v. Coskell, 603. Galveston, H. & S. A. Ey. Co. v. Davis, 662. Galveston, H. & S. A. Ey. Co. u. Duelm, 500. Galveston, fl. & S. A. By. Co. v. John- son, 361. Galveston, etc., E. Co. v. LaGlerse, 544. Galveston, H. &. S. A. B. Co. v. Eutuc, 502, 540. Galveston, H. & S. A. Ey. Co. v. Leonard, 545.' Galveston, H. & S. A. E. Co. v. McMonl- gal, 207. Galveston, H. & S. A. By, Co. v, Matula, 501, 690. Galveston, H. & S. A. Ey. Co. v. Eyon, 502. Galveston, H. & S. A. By. Co. v. Short, 354. Galveston, H. & S. A. Ey. Co. v. Sellg- man, 359. ^ Galveston, H. & S. A. Ey. Co. v. Snead, 384 Galveston, H. & S. A. By. Co. v. Thorns- berry, 395, 466. Galveston, H. & S. A. Ey. Co. v. Tuckett, 691. Galveston, H. & S. A. B. Go. v. Waldo, 374. Galveston Oil Co. v. Morton, 74. Galvin v. City of New Fork, 489. Gambertv. Hart, 427, 429. Gandin v. Carthage, 323. Gandy v. Jubber, lol. Gardners. Detroit St. By. Co., 598. Gardner ti. Grace, 613. Gardner v. Mobile & N. W. B. Co., 435. Gardner v. Smith, 109. Garfleld Mfg. Co. v. McLean, 464. Garland v. Towne, 92, 275. Garrlgan v. Berry, 65. Garrison v. Barnes, 125. 624 TABLS OP CITATIONS. Seferences are to Pages. Gartelser v. Galveston, etc., By. Co., 509. Garton v. Briatol & Ex. By. Co., 347. Gariatt v. Trastees of Caoandaigna, 304. Garrison v. Great Nortbern Bailway, 99. Gareide v. Trent Navigation, 334. Garvrood v.KewTorkOent., etc, B. Co., 97. Gary v. Winter, 640. GastenhoSer v. Clair, 418. Gates V. Fleischer, 426. Gates V. Fenna. B. Co., 143, 489. Gantret v. Bgerton, 3, 18, 74, 79. Gavin V. Chicago Gl^, 145, 613, 514. Gawlrlg V. Leland, 97. Gayford ti. Klcholls, 67, 224. Gaylord v. Xew Brittals, 311. Gaynor*. Old Colony, etc., B. Co., 394. Geddla v. Proprietors of Bann Beservoir, 298 Gee i. Met. Ey. Co., 24, 49, 400, 478, 487. Gee V. Ir. & Y. B. Co., 358. Geer v. Darrow, 220. Geiselman v. Scott, 426. Gelsoer V. Lake Shore, etc.. By. Co., 396. Genning v. New York, etc., B. Co., 87. Genl. Steam Nav. Co. v. British & Colon- ial Steam Nav. Co., 213. Geogbegan v. Atlas S. 8. Co., 473. George v. Haverhill, B95, George v. St. Lonls By. Co., 523. George v. Sklvington, 11, 17. George v. Wabash W. By. Co., 96. Georgia, etc., BankingCo. v. Bbodes, 4E6, Georgia, etc., B. Co. v. Fish. 121. Georgia, etc., B. Co. v. Gann, 344. Georgia, etc^, B. Co. v. Eenny, 493. Georgia Fac. By. t>. Davis, 470. Georgia Fac. By. Co. v. Hnghes, 609. Georgia Fac. By. Co. v. Underwood, 63, 378, B06. Georgia R. Co. v. Seattle, 354. Georgia B. Co. v. Cole, 360. Georgia B. Co. v. Oaks, 646. Georgia B. Co. v. Spears, 361, 355. Georgia B. & B. Co. v. Berry, 602. Georgia B. & B. Co. v. Blllson, 371. Georgia B. & B. Co. v. Love & Good- Will Soc. 442. Georgia B, & B. Co. v. Kayo, 49. Georgia Southern B. Co. v. Neel, 596. Getty V. Devlin, 333. Gerlach v. Edelmeyer, 222. German v. Chicago, etc., B. Co., 351. Germania Bank v. Bontell, 442. German Fass. By. Co. v. Walling, 5?. Germantowu Pass.. By. Co. v. Bxopbey. 63, 378. Gerstle v. Union F. By. Co., 461. Gibbon V. Budd, 420, 601. Gibbons v. Fepper, 626. Gibbons v. The Wisconsin Valley B. Co., 87 89 Gibbons V. WllIceBbane & S. St. By. Co., 486. Gibbons v. WlUlams, 614. Gibbs V. Coy Eeadall, 130. Glbbs V. G. W. By. Co., 235. Gibbs V. Mersey Docks, 3, 131. Gibbs t>. Williams, 93. Glbim V. McMnllen, 23, 440,456. Giblln V. National S. S. Co., 352. Glbner v. State, 487. Gibson v, Coggin, 460. Gibson V. Delaware & H. O. Co., 27. Gibson «. Johnson, 311. Gibson V. Leonard, 77. Gibson V. Freston, 134,136, 299. Gibson v. Szieplenskl, 77. Giddlngs V. Baker, 324. Gilbert v. Beach, 223. Gilbert v. Boston, 316. Gilbert!). Hoffman, 413, 418. Gilbert v. West End St. By. Co., 374 Gilbert t>. Williams, 429. Gile V. Llbby, 413. Giles V. Boston, etc, B. Co., 119. Gill V. Atlantic, etc., B. Co., 110, 111. Gill V. G. E. By. Co., 399. Gillv.Mlddleton,24. Gil lam V. Bionx City, etc., B. Co., 119. Gillespie v. McGowan, 76. Gillespie V. St. Loals, etc., B. Co. 392. Gilletl V. Ellis, 337. Gillett V. Western Ey. Co., 590. Gilliams v. Soath, etc., Ala. B. Co., 200, 207. Gillingham v. Ohio Blver B. Co., 206. GUlis V. Pennsylvania B. Co., 279, 395. Gillison V. City of Charleston, 303. Gillrie v. Lockport, 311. Gillman v. Hovey, 430. Gllman v. Tilton, 97. Gilmer v. Atlanta, 321. Gilmore v. DriscoU, 6,7. Gilmore v. Philadelphia & B. B. Co., 390. Gilmore v. Tnttie, 264. GilBon V, Collin, 252. Giraldo v. Coney Island &B. B. Co.,520. Girdwood V. N. B. Ey. Co., 391. Givens v. Briscoe, 433, 436. Givens v. Kentucky Cent. B. Co., 638. Gladwell v. Steggall, 11. Glanty v. Soath Bend, 307. Glasler v. Town of Hebron, 65, 141. Glavln V. B. I. Hospital, 208. Gleason v. Beers, 59. Gleason v. Bremen, 472. Gleason v. Dodd, 435. ' Gleason v. Goodrich Transportation Co., 352. Gleason v. Smith, 62. Glenn v. Cattle, 432. Glenn «. Jackson, 414. Glldden v. Moore, 126, 128, 284. Glover v. Gray, 513. Glover v. Scotten, 461. Ginck V. Bldgewood Ice Co., 73. Goddard v. Grand Trunk B. Co., 206. Goddard v. Mcintosh, 479. Godeaa v. Blood, 127. Godelroy v. Dalton, 439. Godefroy v. Jay, 438. Godfrey v. Fanlker, 266. Godley v. Hagerty, 103. Godwin v. Wilmington & W. E. Co., 590. Goggln n. Kansas, etc., B. Co., 334, 344. Goldberg v. Schrayer, 496. Golden v. Clinton, 318, 321. Golden v. Newbrand, 201. Goldsmith v. Chicago, etc., B. Co., 361. Goldsworthy v. Town of Linden, 137. Good V. City of Altoona, 95. Good V. Galveston, H. & S. A. Ey. Co. 354. Goodale v. Tnttie, 93. Goode V. Martin, 131. Goodell V. Bins City Lbr. Co., 691. Goodhne ii. Dlx, 64,66, TABLE OF CITATIONS. 625 References are to Pages. Goodin «. Des Moines, 317. Gooding V. The Ausblson, etc.,B. Co., 120. Goodman v. Giay, 127. Goodman v. Oregon Rv. & Nay. Co., 339. Goodman t;. Walker, 428, 429. Goodno V. Oshkosli, 695, 596. Goodrlcti V, Penn . , etc. , K. Co., 62, 378. Goodson V. Dea Moines, 322. Goodwin V. Boston & M. B. B., 52. ■ Goodwin V. Kansas City, eto.,B. Co., 122. Goodwin v. Nlckerson, 639. Goodwins. Stone, 449. Gonzales v. N. T. & H. B. Go., 64. Gordon v. Chicago, 37. Gordon v. Chicago, etc.. By. Co., 111. Gordon v. Cnmmings, 479. Gordon v. G. W. By. Co., 347. Gordon v. LiTlngston, 13. Gordon v. BIchmond, 306. Gcorham v. Gale, 436. Gorham v. Gross, 92, 219. Gorham v. Kansas City &S. By. Co., 597. Gorrls V. Scott, 272, 323. Goshen r. England, 321. Gosllu V. Corey, 602. Goss V. Missonrl Fac. By. Co., 542. Gothard v. Alabama, etc., B. Co., 463, 498. Goui,D ON Watbbs, 93, 98. Gonld V. Bangor & F. B. Co., 288. Gonld V. Chappell, 256. Gould V. McKenna, 491. Goald V. Slater Woolen Co., 287. Government St. B. Co. v. Hanlon, 614. Gowen v. Glaser, 86. Grabmes v. Klein, 462. Grace v. Adams, 346. Graetz v. McKenzie. 486, 640. Graff V. Bloomer, 337. Graham V. Burlington C. B. & IT. By. Co., 43. Graham v. City of Albert Lea, 308. Graham v. Gaatier, 422, 423. Graham <;. Newbary Orrel C. & O. Co., 496. Graham v. Facific B. Co., 384. Graham v. Fayne, iSl. Graham B. FennsylvaniaCo., 461. Graham v. President, etc., of D. & B. Co., 119. Gram v. Northern Pac. B. Co., 87. Grames v. H.swley, 434. Gramm v. Boener, 426. Grand Baplds, etc.. B. Co. v. Cameron, 119, 120. Grand Rapids, etc., B. Co. v. Jadson,121. Grand Baplds, etc., R. Co. v. Monroe, 112. Grand Bapids & I. B. Co. v. Cox, 39. Grand Baplds v. Wyman, 307. Grand X. W. By. Co. v. Dayies, 389. Grand Trunk By. Co. v. lyes, 490. Granger v. Batcbelder, 437. Granger v. Seneca Falls, 307. Grant ». City of Fitchbnrg, 514. Grant v. Union Pac. By. Co., 524. Gratiot V. Missonri Fac. B. Co., 501. Grayes v. Glass, 592. Grayesn. Bochester, 301. Grayes v. Thomas, 73, 75, 281. Grayes v. Sbatlnck, 66, 138. Grayes v. Strahan, 263. Gravett v. Manchester, etc., B, Co., 64. Gray v. Boroneh of Danbory, 143. Gray t>. City of Emporia, 305. Gray v. Coombs, 80. Gray v. Harris, 144. Gray v. McDonald, 639, 640, 548. Gray v. McWllllams, 93. Gray v. Merriam, 60. Gray v. N. E. By. Co., 407. Gray v. Fallen, 223, 272, 292, 313, 604. Gray v. Second Avenae B. Co., 280. Gray ». Wass, 434. Grayson v. Wilkinson, 428. Great Australian Gold Co. v. Ex parte Appleyard, 332. Great N. By. Co. v. Shepherd, 362. Great W. By. Co. v. Fawcett,30a, 392,624. Great Western By. Co. v. Hawkins, 333. Great Western B. Co. i>. Haworth, 2, 91. Great Western B. Co. v. Miller, 204. Great Western B. Co. v. Morthland, 628. Great W. By. Co. v.Blmmell, 341. Great Western B. Co. v. Miller, 204. Gredley v. City of Bleomington, 311. Greeley v. St. Panl, etc., By. Co., 115. Green v. Cross, 494. Green v. Doyle, 12S, 127. Green v. HoUingsworth, 265. Green v. Pennsylyania B. Co., 394. Greene v. Minneapolis, etc., B. Co., 491. Gregg V. Gregg, 109. Gregory v. Brown, 451. Gregory v. Gregory, 257. Gregory v. Ohio Biyer, B. 206. Gregory v. Southern Pac. By. Co., 62. Gregory v. West Midland By. Co., 343, 349. Gregory v. Williams, 602. Greenland v. Chaplin, 492, 591. Greenleaf v. Francis, 97. Greenleaf v. Inhabitants of Karridg- wock, 137. Green Bidge B. Co. v. Brinkman, 88. Greenwood v. Philadelphia, W. & B. B. Co., 51. Greenwood v. Town of Westport, 144. Cries V. Zeck, 131. Grieyand v. St. Louis C. & W. By. Co., 598. GrltSn V. Chicago, etc.. By. Co., 606. Griffith V. Baltimore & O. B. Co., 501. Griffiths V. Dudley. 226, 228, 231, 235. Griffiths V. Earl of Dndley, 542. Griffith V. ntica & M. B. Co.. 698. ' Griffiths V. Wolfram, 216. Griggs V. Fleckinstein, 38, 482. Grill V. General Iron Screw Co., 269, 270. Grimes v. Harrison, 331. Grimes v. Louisville, etc^ By. Co., 60. Grimes v. Pennsylyania Co., 396. Grinnell v. Cook, 412. Griswold V. N. Y. & N. E. B. Co., 386. Grogan v. Adams Exp, Co., 344. Gross V. Pennsylvania, etc., B. Co., 201, 488. Grossenbach v. City of Milwaukee, 311. Grosso V. Delaware, etc., B. Co., 5S0. Grostick V. Detroit, etc., B. Co., 51, 499. Grosyenor v. N. T. Cent., etc., B. Co.. 363. Grote V. Chester By. Co., 143, 220, 300,304. Grotenkemper v. Harris, 533, 644, Groye v. Kansas, 309. Groyer & Baker Sewing Machine Co. n. Missouri Pacific By. Co., 360. Grows V. Maine Central B. Co., 51, 500. Grundy v. City of Janesyille, 289. Gnele v. Mankato, 322. Guellch V. state Bank, 443. 40 626 TABLK OF CITATIONS. References are to Pages. GnUerman v. Sharry. 454. -6aH, C. & S. P. Ry. Co.' ■». Box, 599. Gulf, 0. & 8. P. Ry. Co. v. Brown, 373. Gnlf, Q. & S. F. Ry. Co. v. Buford. 466. Galf, C. & S. F. By. Co. v. Dansliank, S3. Gulf, C. & S. P. Ey. V. Duolap, 96. GnM, C. & S. P. By. Co. v. Campbell, 383, 602. Galf, C. & S. F. By. Co. v. Clarke, 347. Galf, C. & S. F. By. Co. v. Compton, 544, 553. Gnlf, C. & S. P. By. Co. v. Creeland, .^02. Gulf, C. & S. P. Ey. Co. v. Eddins, 345. GtiU, C. & S. P. Ry. Co. o. Elliott, 354. Galf, C. & Santa Pe By. Co. v. Evausicb, 78. Galf, C. & S. P. E. Co. V. Flnley, 551. Gait, C. & S. P. B. V. Gasscamp, li6. Galf, C. & 8. F. Ry. Co. v. Gatewood, 338, 356. Gulf, C. & S. P. Ey. Co. v. Gilbert, 359. Gnlf, C. & S. P. Ry. Co. v. Glenk, 599. Gulf, C. & S. P. Ey. Co. v. HIgby, 374. Gulf, C. & S. P. Ry. Co. v. Hume, 354. Gnlf, G. & S. F. By. Co. v. Insniance Co., Gnlf, C. Galf, C. 590. Gnlf, C. Galf,0. Gulf, C. Gnlf, C. Gulf, C. Gulf, O. 78. Gulf, C. 479. Gnlf.C. Gnlf, C. Gnlf, C. Gnlf, C. Gnlf, C. Gnlf, O. Gnlf, C. 601. Gulf, C. & S. P. Ey. Co. V. Jackson, 367. & S. P. By. Co. V. JobnsoD, 89, & S. F. By. Co. ». Eeltb, 119, 591. &S. F. By. Co. V. Levy, 598. & 8. P. Ey. Co. V. MoAnley, 354. & S. F. Ey. Co. V. Mccarty, 354. & 8. P. Ey. V. AIcGean, 90. & S. F. Ey. Co. V. MoWhlrter, & S. P. Ey. Co. 0. Montgomery, & S. F. B. Co. V. Moody, 204. & a. P. E. Co. V. Moore, 206. & B. P. By. Co. V. MoBB, 499. & 8. P. By. Co. V. Pendery, 509. & S. P Ey. Co. V. Fetlit, 399. & 8. P. By. Co. V. Bowland, 87. & a. P. Ey. Co. V. Scott, 471, 474, & S. P. Ey. Co. V. Sbieder, 471, Gnlf,' C. & 8. P, Ey. Co. „. Southwlck, 541, 54^. Gnlf, C. & S. P. Ry. Co. v. Steele, 96. Gnlf, O. & 8. P. Ey. Co. v. StrickUn, 374. Gulf, C.& S. P. Ey. Co. «. Styron, 78, 519. Gulf, C. & a. P. Ey. Co. V. Trott, 697. Gnlf, 0. & 8. F. B. Co. v. Vaughn, 354. Gult.G. &S. P. By. Co. v. Wallace, 113. Gulf, C. & a. P. Ey. Co. V. Wallen, 466. Gulf, C. & 8. P. By. Co. v. Wilson, 385. Gnlf, 0. & S. P. Ey. v. York, 604. Gnlf, W. J. & P. Ey. Co. v. Abbott, 596. Gulline v. Lowell^S16. Gnmz V. Chicago By. Co., 4S5. Gun V. Ohio Eiyer E. Co., 620. Gnnderson V. N. W. Elevator Co., 78. Gnnteiv. Beard, 692. Gunter v. Wicker, 462. Gunz V. Chicago, etc., B. Co., 484, 486.- Gnrney v. Grand Trunk Ey. Co., 365. Guthrie V. Louisville, etc., B. Co., 496. Gwathway v. Little Miami E. Co., 106. Gwlllim V. Scholey, 449. Gwinnell v. Earner, 102. Gwynn v. Duffield, 286. H. Haaa v. Chicago, etc., B. Co^, 603. Haas V. Grand Rapids, etc., B. Co., 498. Haas V. Kansas City, etc., B. Co., 338. Haas V. ^[ieslonary Soc. Most Holy . Eedeemer, 208. Hackett v. Louisville, etc.. By, Co., 538. Haden v. Clarke, 306. Hadley v. Baxendale, 357, 591. Hadley ti. Taylor, 102. Haehl v. Wabash, E. Co., 301, 204, 644. Hagen v, Chicago, etc., B. Co., 86. Hager v. Southern Pac. Ge., SOL Hahnke v. Frederick, 125. Haile V. Texas & F. By. Co., 45. Haire v. Kansas , 309. Hale V. Smith, 473. Hales V. L. &N. T. By. Co., 357. Haley v. Mobile, etc., B. Co., 650. Halifax V. Lordly, 218. Hall V. Cheney, 338. Hall V. Connecticut Elver Steamboat Co., 392. Hall V. Cootmlre, 132. Ball V. Corcoran, 211. Hall V. Galveston, etc., B. Co., 552. Hall V. Manson, 314. Hall V. N. E. Ey. Co., 342, 386. Hall V. Benf ro, 351. Hall V. Eipley, 480, 482. Hall Safe & Lock Co. v. Harwell, 437. Hally V. Bennett, 71. Halpin V. Kansas, 316. Halyard v. Dechelman, 60. Ham V. Newbery, D. & C. B. Co., 114. Hamburg American Packet Co, v. Gatt- mann,363. Hamilton v. Boston, 481. Hamilton 17. Delaware, etc., B. Co., 475. Hamilton v. Peary, 108. Hamilton v. Hannibal & St. Joe B. Co., 638, 655. Hamilton v. Morgan's L., etc., Co.,513,&53. Hamilton v. Bich HiU C. M. Co., 494. Hamilton v. Texas & Pac By. Co., 396. Hamilton v. Tyle, 454. Hamilton Co. Com. v. Mighels, 135. Hammack v. White, 625, 526, Hammond v. Melton, 283. Hammond v, Mnkwa, 695. Hammond v. N. E. B. Co., 3S5. Hammondv. St. Fancras,29S.291,296,300. Hammond v. Schiff, 688. Hampson v. Taylor, 34. Hampton t>. Pullman Palace Car Co., 406. Hance v. Caynga, etc., E. Co., 120, Hance v. Pacific Exp. Co., 338. Hancock v. Band, 417. Handelun v. Borilngton O. B. & N. B. Co., 48. Handfor v. Palmer, 67. Handyside v. Powers, 108. Haney v. City of Kansas, 48, 30O. Haney v. Pittsburgh, etc.. By. Co., 485, 488. Hanley v. City of Huntington, 295. Hannem v. Fence, 71. Hannibal v. Kenny, 112, 121. Hannibal, etc., B. Co. v. Martin, 483, 596. Hannibal, etc., B. Co. v. Swift, 36S, 364, 365, 483. Hanover B. Co. v. Coyle, 598. TABLE OP CITATIONS. 627 Beferences are to Pages. Hanrahan v. Uanhattan Ry. Co., 375. Hansen v. Chicago, etc., B. Co., 199. Hansford t;. Payne, 286, 547. Hansman v. Madison, 316. Hanson v. Warren, 311. Hardcastle «. Soath Yorks Ky., 81. Harding v. Townsend, 571. Hardy v. Chesapeake Ban^, 442. Hardy v. Minneapolis, S5i. Hardy v. Ryle, 2». Hardy v. Veasy, 444. Hargreaves o. Deacon, 76. llarkness v. Scammon, 255. I lariow V. Bersrer, 449. Harmon v. Columbia & G. B. Co., 372. Harmon v. WasBingtou & G. B. Co., 470, 489. Harned v. Missonri Pac. Ry. Co., 354. Harper ti. Krie R. Co., 875. Harper v. National Life Ins. Co., 437. Harper v. Newport & M. V. B. Co., 372. llarrlgan v. City of Wilmington, 300, 304. Harriman ti. Pltlsbnrg, etc, B. Co., 2, 26, 205 Harriman v. Stone, 252. Harrington v. Hill, 453. Harris v. Cameron, 60. Harris v. Castar, 367. Harris v. Cohen, 106, l68. Harris «. Gt. W. By. Co., 367. Harris v. Hannibal & St. Joe R. Co., 479. Harris v. Minneapolis & St. L. R. Co., 499. Harris v. Mobbs, 28, 137, 141. Harris v. Mnrfree, 455. Harris v. Nichols, 209. Harris v. Northern, etc, R. Co., 352, 353. Harris v. Byding, 67. Harris v. Union Pacific R. Co., 38, 461. Harris v. Waite, 61. Harrison v. Gt. N. By. Co., 27. Harrison v. Kiser, 215. Harrison v. London, etc., R. Co., 343, 347, 349, 355. Harrison v. N. E. Ry. Co., 391. Harrison v. Redden, 451. Hart V. Allen, 337. Hart V. Backner, 134. Ha'rt V. Baxendale, 336. Hart V, Charlotte, G. & A. B. Co., 372, 695. Hart V. Cole, 103. Hart V. Delaware L. & W. Ry. Co., 483. Hart V. Frame, 438. Hart V. Hndson, 470. Hart V. Pennsylvania, 355. Hart V. Red Cedar, 316. Hart V. Ryan, 216. Hart V. Skinner, 211. Hart V. The Hndson Biver Bridge Co.', 473. Hart V. Western E. Co., 89. Hart V. W. V. Tel. Co., 593. Harter v. Morris, 428. Hartfield v. Roper, 616, 517. Hartigan v. Southern Pac. R. Co., 537. iUartman v. Muscatine, 315, 479. Hartnell v. Byde Commissioners, 136,299. Harty v. Central Ry. Co., 51. Hartzig V. Lehigh Tal. R. Co., 489. Harvey v. Terre Haute, etc., E. Co., 355. Hascom v. Boston, 309. Basev. Chicago, etc, Ry. Co., 4SS. Hasse v. American Exp. Co., 340. Hastings V. Halleck, 431, 434. Hastings v. New York, etc., Ry. Co., 355. Hathaway v. Finkham, 127. Hathaway v. Toledo, etc., B. Co., 472. Hathorn v. Richmond, 426. Hatton V. Holmes, 442. Haughey v. Hart, 82. Hauke v. Hooper, 421. Hansmar v. Madison, 311. Haverly v. S. State Line & S. R. Co., 50, 91. Haverson v. Minneapolis, etc.. By. Co., 116. Hawker t;. Baltimore, etc., R. Co., 111. Hawks V. Northampton, 140. Hawkins v. Cooper, 63. Hawkins v. Front St. Cable By. Co., 599. Hawkins v. Harwood, 438. Hawkins v. Railroad Co., 353. Hawkins v. Riley, 206. Hawkins v. The viola, 491. Hawkins v. Watklns, 2. Hawley v. Corey,592. Hawley v. New York, etc., B. Co., 494. Hawver v. Whalen, 224. Hayden v. Mnfg. Co., 493. Hayes v. Norcross, 513. Hayes v. Philadelphia & R. C. & I. Co.,13. Hayes v. WUliams, 537, 543. Hayne v. Rhodes, 438. Haynes v. Wabash R. Co., 353. Hays V. Gainesville St. Ry. Co., 520, 462. Hays V. Wabash Ry. Co., 375. Hay ward v. Goldsbnrg, 433. Hayward v. Miller, 464. Hazard Powder Co. v. Volger, 599. Hazard v. City of Council Bluffs. 295. Health v. Valentine, 105. Healy v. Gray, 412. Heaney v. Long Island B. Co., 505. Heam v. London & S.W. Ry.Co., 335, 343. Heaven v. Pender, 11, 12, 36, 279, 287. Hecht V. Ohio & M. Ry. Co., 642. Hector v. Boston E. L. Co., 77. Heddles v. Chicago & N. W. Ry. Co., 596. Hedges v. Kansas, 478. Hedrlck v. liwaco By. & Nav. Co., 547. Heegv. Licht, 83. Heeslon v. City of Wilmington, 304. Hegeman o. Western R. Corp., 274, 374. Hegerich ;;. Eeddie, 547. Heidenheimerv. Sides, 455. Helgel V. Wichita County, 145. Heil V. Glandling, 687. Helnrich v. Pallman, etc., Co., 205. Helssenbuttel v. City of New York, 73. Helzer v. Klngsland, 12. Hcland v. Lowell, 482. Hemfling v. City of Grand Rapids, 35. Henderson, Hull & Co. v. Phlla & E. Co., 86. Henderson v. Kentucky C. R. Co., 638. Henderson v. Louisville Eleo. R. Co., 363. Henderson v. Smith, 452. Henderson v, Steven9on,'367. Hendershott v. City of Ottnmwa, 302. Hendrlcker v. Meadows, 280. Hendrickson v. Great Northern Ey. Co., 499. Hendrickson v. Meadows, 489. Hendrlx v. St. Joseph & St. L. By. Co.. HI. Henkel v. City of Detroit, 138. Henkel v. Murr, 103. Henkes v. Minneapolis, 311, Henning v. Caldwell, 605, 628 TABLE OF CITATIONS. References are to Pages. Hennlng v. I/onlsyille Leather Co., 538. Hennlng v. Western CTnion Tel. Co., 688. Henry v. Central B. & B. Co.. 590. Eeriry v. Clayton, 430. Henry v. Cleveland, etc., B. Co., 181, 187. Henry v. Dennle, 38, 288. Henry rv. Klapper, 699. Henry v. Kocli, 7. Henry v. St. LonlB By. Co., 35. Henry v. Spragal, 309. Henry v. Southern, etc., E,- Co . , 16, 89. Henze v. St. Lonis, etc , By. Co., 61, 199. Hepbnrn v. City of Philadelphia, 218. Herlischv. Lonlsyllle, etc., B, Co., 51, 199. Herr v. Atkinson, 153. Hen V. City of Lebanon, 36. Herrick ». Gary, 131. Herring V. Wilmington, etc^, B. Oo.,61. Hernb V. Northern, etc., B. Co., 339. Hershberger v. Lynch, 171. Hershey V. Tp. of MillAreek (Fa.), 603. Heske v. Samuelson & Co., 229. Hess V. Lnpton, 92 Hesser v. Grafton, 311. Hester ». Wilkinson, 267. Hetberington v. N. X. By. Co., 512. Hett V. Pnru Pong, 131. Hengh v. L. & N. W. By. Co., 331. Hewesv. McNamara, iSS. Hewett V. Swift, 25-2. Hewey». NonrBe,86, 89. Hewiston v. City of New Haven, 305. Hewitt v.. Eisenbart, 123. Hexamere v. Webb, 216, 221. Hibbard v. Thompson, 126, 191, 192, 193. Hlbernia Bldg, Assoc, v. Mc6i:ath, 69. Elckey v. Boston, etc., B. Co., 62, 376, 381, 382. Hlckey v. Merchant's & M. T. Co., 212. Hicks V. Newport By. Co., 571. Hleks V. Pacific E. Qo., 171. Hicatt V. Morris, 7. HiggiDS V. Cherokee B. Co., 158, 179. Hlggins V. Deeney, 617. • Hlggins V. Dewey, 81. Higglns V. Hannibal, etc., Bi Co., 511, Hlggs V. Mayn^rd, 621. . Hill V. Applegate, 281. Hill V. Boston, etc., U. Co., 135, 315. Hill V. Fond du Lac, 308, 312. Hill V. Livingnton, 1&. Hill V. New Haven, 171. Hill V. New Biver Coi, 27, 313. Hill V. Portland, etc., E. Co., 321. Hill V. Einner, 138. ' ^ Hllli). Winsor, 27. Hiller V. Ivy, 133. Hilliard v. Chicago, etc., E. Co., 116. HlUiard v. Bichardson, 221. Hiiils V. Chicago, etc., E. Co., 69. Hillyard*. Orabtree, 60. Hilsenbeck v. Guhring, 102. Hilton V. Adams, 112. Hilton V. Earl Granville, 66. Hilton V. Whitehead, 66. Hinckley v. Cape Cod B. Co., 172. Hinckley V. Penobacott, 10. HInckle v. Eallroad Co., 600. Hinckle v.'Eichmond&D.B. Co., 61. Hinds V. Overaoker, 263. Hine V. Cnshing, 83. Hines v. Mo. Pac E. Co., 123. Hinckley v. Penobscott, 181. Hlnkley v. Kcug, 128. Hinkley v. Bt. Anthony Falls, etc., Co., 131. Hinnian v. Chicago, etc., B. Co., 119. Hinshaw v. Arden, 68. Hintoni>. Dibbin, 361. Hinz V. Starln, 180. Hipkins i;.'' Birmingham Gas Co., 289. Hipsley V. Kansas City, etc., B. Co., 527. Hirschberg v. Sinsmore, 318, 361. Hirschon v. American Packet Co., 361. Hissong V. Bicbmond & D, B. Co., 206. Hitchcock V. Bargett, 123 Hitchcock ». Galveston, 592. Hitchcock V. McGehee, 131. Hixon V. Lowell, 305. Hoadley v. Northern Transp. Co., 338, 311, 171. Hoag V. Lake Shore, etc., B. Co., 16. Hobbold V. Chicago S. B. Co., 189. Hobbs». L. & S. W. By. Co., 28. Hoboken L. & J. Co. v. Lally, 166. Hobson V. City of Philadelphia, 301. Hobson V. New Mexico & A. B. Co., 170, 178. Hoby V. Bnllt. 126, 131. Hocnm V. Welthertok, 171. Hodgen Vk New England Screw Co., 326. Hodgson V. Lynch, 118. Hodgson V. York, 299. Hodnett v. Boston a: A. B, Co., 611, 661. Hodyman v. West Mid. By. Co,, 352. Hoehn v. Chicago, etc., By. Co., 189. Hoey V. Natick, 317. Hon V. West Jersey B. Co., 86. Hoffman v. Chicago, etc.. By. Co., 90. Hoffman v. Metropolitan St. By. Co.,690. Hoffman v. N. Y. C. B. Co.. 201. Hofnagle v. B. B. Co., 37. Hogan-«. Kentucky Union By. Co., 117. Hogan V. Manhattan By. Co., 531. Hogan V. S. E. By. Co., 389, 390. Hogan V. Tyler (Virginia), 502. Hogenson Vi St. Fanl, etc., B. Co., 93, 91. Hogg V. Martin Eiley, 129, 131. ' Hogue V. Chicago & A. B. Co., 661. Holbert V. Montgomery, 133. Holbrook v. Ulica, etc., E. Co., 63, 378. Holcome v, Danby, 10, 181. Holder v. Chicago, etc., B. Co., 118. Holder v. Sonlby, 111. Hbldsworth v. City of Glasgow Bank, 332. Hole V. Slttangbonrne By., 223,292,313. Holker v. Parker, 136, 137, 138. Holland V. Brown, 613. Holland v. Chicago, etc., B. Co., 601, 502. Holland V. Lynn, 536. Holley V. Town, etc., 301. Holllster v. Nowlen, 316, 393. Holloway v. Lookfiort, 311. Holly V. Boston Gas Co., 290, S17. Holman v. Chicago, etc., B. Co., 601. Holmes V. Atkinson, etc., E. Co., 2. Holmes v. Fond da Lac, 699. Holmes v. Halde, 122. Holmes v. Mather, 130. Holmes v. N. E. By. Co., 279, 281. Holmes V. Northwestern By., 71. Holmes V. Onion, 211. Holmes v. Oregon, etc.. By. Co., 611, 652. Holmes, v. Eogcrs. 137. Holmes v. Sonth Fac. By. Co., 163. Holt V. Spokane & P. By. Co., 652. Holton v. Daly, 617. TABLE OF CITATIONS. 629 References are to Pages. Holzab V. New Orleans, etc., JB. Co., 509. Homan v. Stanley, 83, 271. Homer v. Thwine, 211. Hommert v. Gleason, 451. Honeyman v. Oregon & C. B. Co., 352. Hood V. Grimes, 422. Hooker v. Miller, 80. fiooksett V. Concord R. Co., 89. Hope V. Troy & L. B. Co., 493. Hopes V. Ghtcaeo, etc.. By. Co., 385. Hopgood V. Parkin, 238, 438. Hopkins V. Atlantic, etc., B. Co., 589. Hopkins V. Town of Bnsh Biver, 137, Hopkins V. Westcott, 364. Hopkins V. Wlliard, 436. Hopper o.LS'N. H. Ry. Co., 363. Hopping V. Qainn, 430. 432. Horn t;. Baltimore &O.R. Co., 472, 501. Horn V. Midland By. Co., 342, 358. Horn Silver Min. Co. v. Ryan, 324. Hornbein v. Blanchard, 125. Home ». Pndil, 451. Homer v. Harvey, 418. Horner ». Watson, 9. Horsely v. Branch, 211. Horton v. Snllivan, 94. Hoth V. Peters, 472. Hongb V. Railway Co., 472, 494, 493, 496. Honghkirk v. Delaware & Had. Canal Co., 643. Honglitallng v. Shelby, 139. Houghton r. Chicago & 6. T. Ry, Co., 505. Honnsell v. Smith, 74, 80. Hourigan v. Kewell, 13. Honrney v. Brooklyn City R. Co., 52, 377. Honsatonic, etc.,R. Co. v. Knowles, 112, 121. Honse v. Metcalf, 103, 321, Honsee v. Hammond, 603. .Honseman v. Girard Bldg. Co., 12, 450, 46.'!. Honser v. Tally, 412, 413, 414. Hoastonzi. Cincinnati, etc., B. Co., 110. Honston v. Isaacs, 319. Houston V. Traphagan, 309. Honston v. Wandelohr, 452. Honston City St. By. Co. v. Elchart, 515. Houston, etc.. By. Go. v. Baker, 544. Honston, etc., B. Co. v. Boehm, 596. Houston, etc., R. Co. v. Burke, 690. Houston, etc., R. Co. v. Carson, 46S. Houston, etc,, B. Co. v. Clemmons, 3S1, 382. Honston, etc., B. Co, v. Oowser, 541. Honston, etc.,B. Go. v. Gorbett, 466. Houston, etc., B. Go. v. Ham, 336. Houston, etc., B. Co. v. Hollis, 493. Houston, etc., B. Go. v. Leslie, 44, 379. Houston, etc., B. Go. v. Moore, 383. Honston, etc., B. Co. v. Simpson, 78,519. Houston, etc.. By. Co. v. Sympklns, 52, 503. Houston, etc., B. Co. v. Willie, 602. Houston, etc.. By. Co. v. Wilson, 61, Hov6r V. Pennsylvania Co., 533, Howard v. Babcook, 59, 265. Howard v. Grover, 422, 423. Howard v. Kansas City, etc., B. Co., 465. Howard Co. Com. v. Lpgg, 543. Howard Oil Co, v. Davis, 602. Howe Machine Co. v. Pease, 411. Howe V. Newmarch, 204. Howe V. New Orleans, 305, Howe V. Ohmart, 38, 72, 278. Howell, Jewett & Co. v. Cryl & Co., 436. Howland v. Vincent, 81, 83. Howser V. Camberland & P. B, Co., 531. Howth V. Franklin, 411. Hoyle V. Flattsburg, 324. Hoyt V. Hudson, 93, 94. Habbard v. Boston & A. B. Co., 504. Habbard v. Harnden Express Co., 336, Habbard v. Phillips, 439. Habbard v. Webster, 94. Hubbell V. Blandy, 69. Hackle v. Money, 587. Hucksholdv. St. Louis, etc.. By. Co., 465. Hndson v. Honspr, 554. Hudson V. Inhabitants of Marlborough. 141, 317. Hndson v. Northern Pac. B. Co., 344, 359. Hudson V, Boberts, 285. Hndson v. Wabash W. By. Co.. 471. Hudston V. Mid. By. Co., 362. Huerzeler t>. Central Gross Town B. Co., 40. Huey V. Gahlenbeck, 280. Huff ». Ames, 615, Hnff V. Ford, 210. Huffman v. San Joaquin, 146, Hughes V. Cincinnati, etc., B. Co., 217, Hughes V. Fonddu Lac, 318. Hughes v. Hannibal, etc., B. Co., 118, Hughes V. Lawrence, 311. Hughes V. McCoy, 431. Hughes V. Macfle, 468, 515, 517. Hughes V. Orange Co. M. Assoc, 82. Hughes V. Percival, 6, 214, 220. Hughes V. Quentin, 590. Hughes V. Eallway Co., 218, 224, 292. Hughes v.y/.V. Tel. Co., 593. /Hughlett V. Louisville & N. E. Go., 54, 379. Hulbert V. City of Topeka, 655. Hulehani;. Green Bay, etc., B. Co., 601. Hulett V. Swift, 411, 412. Hulse V. New York, etc., B, Co., 13. Hume «. Oldacre, 604. Humphreys v. County, 144. Humphreys v. Perry, 365. Humphries v. Armstrong Co., 479. Humphries v, Brogden, 66. Hnnv. Gary, 324. Hunt V. Lowell Gas Co., 290, 491, Huntv. Mo. B. Go., 38. Hunter v. Burlington, etc.. By. Co., 110. Hunter v. Caldwell, 438. Hunter v. Columbia, N. & L, R. Co., 86. Hunter e. Coopertown, etc., B. Co., 375, 376,475. Hunter v. Southern Pac. By. Co., 360. Huntington v. Breen, 308, Huntington, etb., B. Co, v. Decker, 642, Huntley v. Bulwer, 438. Hurd V. Rutland, etc., B. Co,, 111. Hnndbansen v. Bond, 141. Hurst «. Detroit City By., S43. Hurt V. St. Louis, etc. By, Co,, 465, Hurt V. St. Paul, M. & M. By. Co., 113. Huse & Loomis Ice Co. v. Heinze, 592. Hussey v. King, 132. BuSsey ti. Byan, 106,619, Huston V. Mitchell, 436. Hutchlngs V. Western, Blv., By. Co., 362. Hutchinson v. Bank of Wheeling, 648. Hutchinson v. Boston Gas Light Go,, 290, HUTCHINSOir ON CABBIEB8, 401. 630 TABLE OF CITATIONS. Beferences are to Pages. Hntchineon v. Concord, 306. Hutchison V. Gnmmlngs, 103. Hntchinson v. New York, New Castle, & Berwick Ky. Co., 262. Hutcbltison V. Olympla, 306. Hutchison V. Railroad Co., 387. Hutchison V. St. Panl, etc., Ey. Co., 613. Huxam V. Thoms,229. Hyamav. Michel, 439. Hyams v. Webster, 223. Hyatt V. Adams, 646, 648, 699. Hyde v. Jamaica, 135, 474. Hyde «. Mersey Nav. Co., 411, Hydraulic Works Co. v. Orr, 78, 288. Hyman v. Central Vt. E. Co., 366. Hyman v. Nye, ,'!68. Hyrne v. Erwin, 426. Ihl V. Forty-second St., etc., E. Co., 634, 643. fhmsen'B App, 263. Illldge V. Goodwin, 31. Illinois Central E. Co. v. Adams, 344. Illinois, etc., B. Co. v. Abel, 876. I. P. & O. B. Co. V. Allen, 353. Illinois Cent. E. Co. v. Axley, 883. Illinois Cent. E. Co. v. Barron, 371. Illinois, etc., E. Co. v. Buckner, 602. Illinois Central B. Co. v. Btill, 111. Illinois Cent. E. Co. v. Copeland, 366. Illinois, etc., E. Co., v. Cragln, 603. Illinois Cent. E. Co. v. Davidson, 479. Illinois Cent. B. Co. v. Dick, 465, 482. Illinois Cent. B. Co. ■». Downey, 205. lUiuols Cent. E. Co. v. Fishell, 500. Illinois Cent. E. Co. v. Frankenberg, 346, 366. Illinois Cent. R. Co. v. Prazier, 89. Illinois, etc., K. Co. v. Green, 381. Illinois Central E. Co. v. Hall, 353. Illinois, etc., E. Co. v. Hammer, 589. IllinoiB Central B. Co. v. Haynes, 352. Illinois Cent. B. Co. '». Hunter, 639. Illinois Cent. B. Co. v. Ken, 360. Illinois Cent. E. Co. v. King, 214. Illinois Central E. Go. v. Larson, 462. Illinois Cent. E. Co. v. McKay, 91, 117. -Illinois Gent. E. Co. v. Fendergrass, 660. Illinois Central B. Co. v. Phillips, 288. Illinois CentralB. Co. v, Eeed, 386, 386. Illinois Dent. E. Co. v. Boss, 210. Illinois Cent. B. Co. v. Scruggs, 361. IllinoiB, etc., E. Go. v. Stables, 606. Illinois Central E. Co. v. Trowbridge, 121. Illinois, etc., B. Co. v. Wilcox, 360. Ilott V. Wilkes, 286. ImhofE V. Chicago, etc., E. Co.t393. In Aurora v. Love, 304. Inderkirk*. Central Nat. Bank, 59. Independence Mills Co. v. Burlington, etc., Ey. Oo.,.386. Indermaur v. Dames, 18, 63, 71, 211, 279. Indiana I. & I. Ey. Co. v. Dooling, 118. Indiana Central B. Co. v. Mundy , 389, 386. Indiana, li. & W. Ey. Co. v. Overman, 87. Indiana & I. S. E. Co. e. Sampson, 112. Indiana, etc., B. Co. v. Leak, 115. Indianapolis Water Co. v, American Strawboard Co., 97. Indianapolis, etc., E. Go. v. Candle, 121. Indianapolis v. Doherty, 140. Indianapolis, D. & W. B^. Co. v. For. sythe, 344. Indianapolis v. Gaston, 695, 596. Indianapolis, etc., B. B. Co. v. Guard, 118. Indianapcflis, etc., B. Go. v. Hall, 112. Indianapolis, etc., B. Go. v. Horst, 384. Indianapolis, etc., E. Co. v. Means, 528. Indianapolis, etc., E. E. Co. v. Oestel, 121. Indianapolis, etc., Ey. Co. v. Ott, 495. Indianapolis, etc., Ey. Co. v. Pitzer, 520. Indianapolis, etc., Ey. Go. v. Butherford, 52, 378. Indianapolis, etc., E. Go. v. Shriner, 110. Indianapolis, etc., B. Co. v. Smith, 60S. ■ Indianapolis, etc., B. Go. v. Stout; 487, 606, 633. Indianapolis, etc., B. Co. v. Strain, 353. Indianapolis, etc., E. Co. v. Thomas, im. Indianapolis & St. L. Ey. Co. v. Watson, 495. Indianapolis, etc., E. Co. v. Tuntgen, 356. Inhabitants of West Orange v. Field, 302. Ingle V. Partridge, 265. Ingram v. Barnes, 229. Ingram v. Lawson, 602. Ingram v. Bankln, 690. Ingwersen v. Bankln, 105. Inland & Seaboard Coasting Co. v. Tol- son, 466, 472. Inman v. Chicago, etc., B. Co., 119. In re Blauvelt's Bstate, 263. In re Bolton, 438. In re Cardiff Sav. Bank, 329. In re Craven, 263. In re Denbam & Co., 332. In re Godfrey,265. In re Government Security Co., 332. In re Knight's Estate, 268. In re McLaren, 334. In re Pearson, 266. In re Spencer, 438. In re Shepard,649. I n re United Service Co., 440. In re Wbitecar's Estate, 25S. International & G. N. B. Co. v. Ander- son, 338, 347, 361. International & G. K. B. Go. v. Cooke. 113, 121. International & G. N. B. Go. v. Dlmmltt Co. P. Co., 363. International & G. N. Ey. Co. v. Dyer, 601. International & G. N. B. Go. -a. FoUiard, 363. International By. Co. v. Halloren, 390, 391. International & G. N. By. Go v. Has- sell, 380. International & G. N. E. Go: v. Hynes, ' 337. International & G. W. E. Co. v. Irvine, • 383. International, etc., E. Go. v. Kindred, 660. International & G. N. By. Go. v. Knehn, 500, 640, 642. International & G. N. B. Co. v. McDon- ald, 544. International & Gt. N. B. Co. v. Moody, 372. International & G. N. B. Co. v. Nefi, 499. TABLE OJ!' CITATIONS. 631 References are to Pages. International & G. N. Ey.'Co. v. Terry, 41. International & G. K. B. Co. v. Tlsdale, 338. International & Gt. N. B. Co. v. Under- wood, 372. International & G. N. B. Co. v. Welsh, 62, 374. 378. Irelson v. Southern Pac. Ey. Co., 374. Irish V. Milwaukee, etc., B. Co., 361. Irish V. Bailroad Co., 360. Iron City Nat. Bank v. Ft. Pitt Nat. Bank, 442. Iron Ey. Co. v. Mowrey, 39, 3S0, 486, 523. Irvine v. Wood, 102. Isaac V. Zngsmltk, 437. Isabell V. Hannibal, etc, E. Co., 503, 51S, 520. IsbeU V. N. Y., etc.. E. Co., 463. Israel v. Clarke, 392. iTay V. Hedges, 79. Ivens V. Cincinnati, W., etc., Et. Co., 165. Iveson V. Moore, 134. Ivey V. Bast.Tenn, etc.. By. Co., 502. J. Jacand v. French, 438. Jackson v. Bartlett, 434. Jackson v. Bomham, 425. Jackson «. CriUy, 474. Jackson v. Uetropolitan By. Co., 28, 389, 4C0, 485, 487, 488. Jackson v, Arlington Mills, 98. Jackson v. N. C. & St. L. E. Co., 36. Jacoby v, Ockerhausen, 127. Jackson v. Pittsburgh, etc.. By. Co., 545. Jackson v. Sacramento VaUey E. Co., 340. Jackson v. Smithson, 285. Jackson v. St. Louis, etc., B. Co., 44, HI, 122, 375. Jackson v. Second Aye. B. Co., 204. Jik;kson v. Schmidt, 141. Jacksonville v. Drew, 142, 145. Jacksonville v. Lambert, 689. Jacksonville, etc., B. Co. v. Cox, 95. Jacksonville, etc., E. Co. v. Hays,' 93. Jacksonville, T. & K. W. By. Co. v. Gar- rison, 373. , JacksonviUe, T. & K. W. By. Co. v. Peninsular L. T. & M. Co., 32, 90, 373, 631, 69D. Jacob V. Lncas, 267. Jacobs V. Dougherty, 453. Jacobs V. St. Paul, etc., B. Co., 381. Jacobs V. Tntt, 367. Jacobsmeyer v. Poggemoeller, 125. Jacobus V. St. Pam, etc., B. Co., 384, 386. Jacqulth V. Eichardson, 64. Jager v. Adams, 71. James v. Maehleback, 214. James ». Eichmond £D. B. Co., 542. Janln v. London & S. F. Bank, 442. Jansen v. Atchison, 309. Jalie V. Cardinal, 413, 418. Jarrett t>. Atlanta & W. P. E. Co., 379. Jarvis V. Brooklyn £1. B. Co., 395. Jean v. Pennsylvania Co., 93. Jefiersonville, etc., E. Co. v. Beatty, 121. JeffersonvUle, etc., E. Co. i>. Bowen, 514. Jeffersonvllle, etc., E. Co. v. Cleveland, 340. JeffersonvUle, etc., E. Co. v. Goldsmith, 75. JeSersonvllle, etc., B. Co. v. Hendricks' Admr.,S4.373, 379. Jeffersonvllle, M. & I. B. Co. o. Peters, 112, 113. JeffersonvUle, etc., B. Co. v. Boss, 119, 120. Jeffery v. Bastard, 449. Jeffords v. Crump, 418. Jeffrey v. Eeokuk Ey. Co., 484. Jeffries v. Williams, 68. Jencks v. Kenney, 8. Jenkins v. Betham, 61. Jenkins v. Central E. & B. Co., 474. Jenkins v. Chicago & A. B. Co., 113. Jenkins v. Nat. Bank, 59. Jenkins V. Waldron, 450. Jenue v. Sutton, 286. Jewet V. Eeene, 539. Jennings v. V. D. G. Burton Co., 125. Jennings v. Grand. Tmnk By. Co., 339, 349. Jennings v. Pennsylvania E. Co., 86. Jennings v. St. Joseph &St. L. Ey. Co., 115. Jennings v. St. Louis, etc.. By. Co., 51. Jennings v. Van Schaick, 309, 47S. Jessea v. Swelgert, 71, 305. Jeter v. Haviland, 433, 43U. Jett V. Shinn, 453. Jevon V. Bush, 254. Jewell V. Chicago, etc., E. Co., 379, 380. Jewett V. Gage, 124. Jewette. Kansas Otty, etc., Ey. Co., 463. Job V. Hanlan, 132, Job «. Job, 456. Jobson V. Palmer, 269. Jochem v. Bobinson, 139, 480. John V. Bacon, 279. John V. Charlotte C. & A. E. Co., 390. John Morris Co. v. Burgess, 631. Johnson v. Alabama & V. Ey. Co., 341. Johnson v. Chesapeake & O. E. Co., 602. Johnson v. Chicago, et. Lake Superior, T. & T. By. Co., 489. Johnson v. Lewis, 105. Johnson v. Louisville & N. B. Co., 503. Johnson V. Midland By. Co., 312. Johnson v. Missouri Pac. Ey. Co., 481. Johnson v. Munio, 428. Johnson v. Newton, 258. Johnson v. New York Central, etc., B. Co., 338. Johnson v. Northern Pac. B. Co., 88, 597. Johnson v. Northwestern Xel. £x. Co., 35, 38. Johnson v. Patterson, 80. Johnson v. Philadelphia, 323. Johnson v. Bamberg, 280. Johnson v. Eichardson, 411. Johnson v. Stone, 406. Jobnson v. West Chester, etc., B. Go.i 375,487. 632 TABLE OF CITATIONS. References are to Pages. Johnson v. Willoox, i78. Jobnston v. Cleveland, etc., R. Co., 537, ei3. Johnston v. District of Colnmbla, 301, 305. Johnstone v. Richmond & S. R. Co., 345. Joint Stock Co. V. Brown, 329, 331. JoliSe V. Wallasey Local Board, 291. Jones V. Angell, 423. Jones V. Andover, 61, 181. Jones on Bailments, 338, 415. Jones V. Bird, 269, 292, 145. Jones V. Boyce, 393, 179, 691. Jones V. Bnrtis, 123. Jones V. Chicago, etc.. By. Co., 380, 382. Jones V. Cincinnati S. & M. By. Co., 361. Jones©. Fay, 422. Jones V. Festinlog Ry. Co., 83, 277. Jones V. Frledenbnrg, 107. Jones V. Higglns, 267. Jones V. Honsatonlc B. Co., 142. Jones V. Johnson, 328. > Jones V. LonlsvIUe & N. R. Co., 166. Jones V. Mayor, etc., 210. Jones V. Michigan Cent. R. Co., 87, 89. Jones V. Morgan, 69. Jones V. Morrison, 324. Jones V. McMlnlmy, 224, Jones V. Nichols, 81. Jones V. Railroad Co., 367. Jones V. St. Lonis, 206. Jones V. Yoorhees, 361. Jones V. Wagner, 9. , Jones V. Wood, l.'>2. Jordan v. City of Ashevllle, 473. Jordan v. Oluoinnatl, N^. O. & T. P. Ry. Co., 638. ' Jordan v. Crump, 286. Jordan v. Hanson, 451. Jordan v. St. Paul, M. & M. Ry. Co., 95. Joslin V. Grand Rapids Ice Co., 214. Joslin V. Grand Baplds Imp. Co., 210. JosJyn «. King, 69. Joy V. W. Co., 398. Joyce V. Martin, 102. Joyner v. Great Barrlngton, 316. Jndab v. M^Namee, 422. Jndd V. Town of Ciaremont, 136. Jndson v. Giant Powder Co., 627, 631. Jndson v. Love, 435. Jnlins V. Bishop of Oxford, 296. Jnng V. City ol Stevens Point, 472. K. Eahl V. Love, 3, 12. Kalemback v. Michigan Cent. B. Go., 489. EaliB V. Shattack, 106. Kane v. New York, etc., R. Co., 489. Kankakee & S. R. Co. v. Horan. 96. Kannenberg v. City ol Alpena, 300. Kanowskl i>. Grand Trunk Ry. Co. ol Canada, 604. Kansas & A. V. By. Co. v. Whlte,'878. Kansas Central Ry. Co. v. Fitzsimmons, 78, 276, 465, 619. Kansas City, etc., R. Co. v. Cook, 96. Kansas City, etc., R. Co. v. Uaaghtry, Kansas City, etc., R. Co. v. Dorbngh, 376. Kansas City, Ft. Scott, etc., R. Co. v. Morrison, 364. Kansas City, etc, B. Co. v. Kelley, 204, 206. Kansas City, etc., B. Co. v, Mayes, 483. Kansas City, etc., R. Co. v. McHenry, 119. Kansas City, etc., B. Co. v. NichoUs, 361. Kansas City, etc., B. Co. v. Owen, 91. Kansas Otty, etc., R. Co. v. Riley, 93. Kansas City, etc., R. Co. v. Simpson, 355. Kansas, etc., B. Co. v. Kessler, 689. Kansas, etc., B. Co. v. Miller, 637, 642. * Kansas, etc., B. Co. v. Feavey, 465. Kansas, etc., B. Co. v. FhlUibert. 171. Kansas, etc.^ R. Co. v. Pointer, 471. Kansas, etc., B. Co. v. Reynolds, 351, 863.' Kansas, etc., R. Co. v. Salmon, 387, 641. Kansas, etc., B. Co. v. Whipple, 620. Kaples V. Ortb, 631. Karle v. Kansas City, etc., B. Co., 66. Karr v. Parks, 485, 487, 699. Karsen v. Milwaukee, etc., B. Co., 88. Kateele v. Philadelphia, 290. Kanffman v. Griesemer, 93. Kaveny v. Troy, 311, 312. Kay V. Kirk, 97. / Kay V. Pennsylvania B. Co., 2. Keane v. Waterford, 311. Kearney v. L. B. & S. C. Ry., 71, 143, 267, 275, 522, 626, 629, 632. Keating v. Cincinnati, 302. Keating v. Kew York Cent. R. Co., 373. Keble v. Thompson, 263. Keech v. Baltimore, etc., Ry. Co., 119. Keefec. Boston & A. B Co., 394. Keefe V. Chicago, 465,620, 521. Keeley ». E. W. K. W. Co. , 398 . Keen ». O'Connor, 132,138. Keen v. Millwall Dock Co., 238.. Keenan v. Gutta Percha Mfg. Co., 127. Keenan v. Southwortb, 450. Keffe V. Milwaukee, etc., B. Co., 78, 619. Keiffer v. Borough of Hnmmelstown, 36. Ketghtllnger v. Egan, 126, 128, 129. Keir B. City of St. Paul, 304. Keltel V. St. Lonis C. & W. By. Co., 171. Keliher v. Connecticut, etc., R. Co., 119> Keller v. Scott, 433. Kelley v. Central B. ot Iowa, 642, 543. Kelley v, Columbus, 316. Kelley v. Fond du Lac, 316. Kelley V. Sliver Spring Co., 493. Kelley v. Union By. & T. Co., 466. Kellogg V. Chicago, etc., Rallxoad Co., 46, 89, 478, 600, 601. Kellogg V. Gilbert, 436. Kellogg V. Janesville, 306. Kellogg v. N. T. Cent. etc. R. Co., 51, 671. Kellogg n.Norrls, 431. Kellogg V. Payne, 219. Kelly V. Obicago & A. B. Co., 499. Kelly V. Dunning, 94. Kelly V. Fond du Lac, 143. Kelly V. Hannibal, etc., R. Co., 379, 484. Kelly V. Howell, 217, 223. Kelly V. Manayunk, 35. Kelly V. Pennsylvania B. Co., 600. Kelly V. Shelby E. Co., 207. KeUy». Wright, 487. Kelsea v. Manchester, 137. Kelsey v. Chicago, etc., Ry. Co., 87. Kelsey v. Staten Island B. T. Co., 600. Kelty V. Dunning, 94. Kelton V. Taylor, 60.' Kemmish v. Ball, 130. Kemp V. Bart, 438, 439. TABLE OF CITATIONS. 633 Beferences are to Pages. Kendall v. Albia, 307, 601. Kendall V. Boston, 268. Kendall V. Kendall, 489. Kendall v. L. & S. W. By. C!o., 334. Kendall v. Stokes, 449. Kennard v. Bnxton, 64, 65, 618, 626. Kennaid v. WlUmore, 449. Kennedy v. Ashcratt, 265. Kenney v. Hannibal, etc.,B. Co., 86. Kenney t>. New York, etc, B. Co., 385. Kennon v. Gilmer, 696. Kenny v. Barns, 108. Kenny ». Collier, 692. Kent V. Mid. By. Co., 362. Kent V. Shaclcard, 413. Kent V. Town . McGanty, 538. Kentucky Gent. By. Co. v. Smltb, 465. Kentucky, etc., B. Co. v. Talbot, 538. Kentucky Cent. By. Co. v. Tbomas, 381, 385, 465, 471. Kentucky Cent. B. Co. v. 'Wainwrlght,538. Kentucky Hotel Vo. v. Camp, 520, Kentucky & I. B. Co. v. Hall, 472. Kentucky & I. B Co. v. Qulnken. 401. Kentucky & I. Bridge Co. v. McKinney, 380. Kepler e. Jessup, 427. Kepperly v. liamsden, 224,473. Kerby v. Cbadwell, 430. Kercbner v. Baker, 430. Kerr v. Pennsylvania B. Co., 539, Kerr c.Wlllan, 342. Kerwbacker c. Cleveland, etc., B. Co., 461,' SI 7. Kesler». Smitb, 642. Kessler v. Lockwood, 125, 127. Ketcbam v. Cobn, 224. Ketcbumv. Newman, 8. Key V. Hugbea Ex'rs, 262. Keyar V. Covell, 96. Keyes ti. Bank, 441 . Kevea v. Minneapolis & St. L. By. Co., 599. Keys V. Belfast By. Co., 362. Keys V. Village Marcellns, 316. Keyser V. Chicago, etc. By. Co., 115, 520. Kibllng V. Clark, 451. Kiley v. Kansas, 139. Klllien v. Hyde, 485. Kilpatrick v. Pennsylvania B. Co., 64, 379. Kllver V. N'ew York, etc., E. Co., 116. Kimball v. Ca«hman, 216. Kimball v. Kutland, etc., B. Co., 345, 351, 363. Kimball V. Perry, 436. Kimberly & Clark Co. v. Hewitt, 97. Ktmbro v. Edmonson, 460. Kincbelo v. Priest, 69. Kindal w. Blades, 449. King V. Buffalo, 316. Kingv. Chicago, etc., B. Co., 116. Kingt>. Ford, 286. King v.Henkle, 540. Kingj;. New Tork, etc., E. Co., 216, 224. King V. Ohio & M. By. Co., 27. King V. Pope, 434. King V. Spurr, 213. King V. Woodbridge, 358. Kingston & B. B. Co. v. Campbell, 216. Kinney v. Central, etc., E. Co., 385,386. Kinney v. Hannibal, etc., By. Co., 87, 88. Kinmouth v. McDougal, 126, 606. Kinney v. Folkerta, 601. Kinney v. Tekamah, 308. Kinney i>. Troy, 311. Kinsley v. Bulfalo, etc., B. Co., 339, 363, 405, 410. , Kirby v. Pennsylvania E. Co., 248. Kirk V. Chicago, etc.. By. Co., 340. Kirk V. Homer, 321. Ktrst V. M. L. S. & W. B. Co., 529, 630. Kisten t>. Hiiderbrand, 411. Kissler v. New York Cent., etc., E. Co., 366. Kistner v. City of Indianapolis, 36. Kittredge v. Elliott, 127, 282. Klauber v. American Hzpress Co., 337, 339 Kleever v. Market St. E. Co., 551. 'Klenberg v. Bussell, 124. Klepsch V. Donald, 644, 654. Klipper V. Coffey, 482. Kllx V. Nieman, 76. Knapp V. Sioux City &P. By. Co., 32. Knight V. Albemarle &B. Co., 95. Knight V. Albert, 66, 80. Knight V. Fox, 222, 224. Knight V. Pacific Coast Stage Co., 393. Knight t7. New York, etc., B. Co., 118, 604. Knight V. Pontchartrain B. Co., 375, 640. Knight V. Portland, etc., E. Co., 73, 394, 396. Knight V. Watts, 268. Knights V. Qnarles, 438. Knott V. Ealeigh and G. N. E. Co., 060. Knowles v, Crampton, 66. Knowles v. Mulden, 126. Knowltonv. Milwaukee City B. Co., 480. ICnoxville Iron Co. v. Dobson, 215. Koch V. Mcrk, 692. Koebler v. Bocbester, etc., B. Co., 601. KoeniDg v. Covington, 638. Kohn V. Lovett, 76. Kolb V. Klages, 127. Kollockv. Cityot Madtson, 218. Kolsti V. Minneapolis, etc.. By. Co., 78. Kolzen v. Broadway & S. A. B. Co., 205. Koons V. St. Louis, etc., E. Co., 519. Koontz V. Oregon By. & Nav. Co., 89, Kopper V. Willis, 418. Korrady v. Lake Shore & M. S. B. Co., 502. Korte V. 0. G. Lewis Coal Co., 310. Eraus v. B. C. E. & N. B. Co., 118. Krauss v. Wallkiil Val. E. Co., 601. Kreauzlger v. Chicago & N. W. By. Co., 60. Krebs v. Minneapolis, etc, B. Co., 119. Krey p. Schlussner, 478. Krlppner v. Biebel, 46, 85. ' Kronshage v. Eailroad Co., 341. Krueger v. Ferrant, 106. Kroy 17. Chicago, etc., B. Co., 494, Knhn v. Jewett, 26, 46, 82. Kulwicki V. Monroe, 219. Kummel v. German Sav. Bank, 442. Knmlerv. Junction B. Co., 641. Kankel v. Chicago, 321. Knrz & Huttenlocher Ice Co, v. Milwau- kee &N. B. Co., 86. Kwlotkowskl V. Chicago & G. T. By. Co., 602. Kyne v. Wilmington & N. E. Co., 517. 634 TABLE OF CITATIONS. References are to Pages. L. Lb Dnke v. Tp. of Exeter, 32. La Paul V. TrneBdale, lU. La Prelle v. Fordyce, 39, 486. La Sala v. Holbrook, 7, 8. Labold V. Sontbem Hotel Co., 112. Lacket V. Lutz, 77. Ladd V. Fostei, 39. Laethem v. Ft. Wayne & B, I. By. Co.,189. Lafayette v. Weavei, 322. Laffltte V. New Orleans E. Co., 201. Laflrey v. Giammond, 3B7. Laheity v. Hogan, 127. Laicher v. New Orleane, etc., E. Co., 502. Laldlei v. Elliott, 427, 438, 439. Laing v. Colder, 346, 378. Laird v. Ballroad, 88. Lake v. MUIIken, 38, 142. Lake Erie, etc., E. Co. v. Cmzen, 87. Lake Erie, etc.,B. Co. v. Flshback, 116. Lake Erie, etc., B. Co. v. Griffin, 688. Lake Erie, etc., B. Co. v. Kneadle, 122. Lake Erie & W. B. Co. v. Mngg, 651. Lake Shore, etc., B. Co.v.Bangd,54,379, 484. ' Lake Shore, etc., B. Co. v. Brown, 382. Lake Shore, etc., B. Co. v. Johnson, 464.- Lake Shore, etc., B. Co. v. Mcintosh, 512. Lake Shore, etc., B. Co. v. Miller, 602, 612. Lake Shore, etc., B. Co: v. O'Conner, 464. Lake Shore, etc., B. Co. v. Finchin, 472. Lake Superior Iron Co. v. Erickson, 216, 223. Lakin v. •Willamettee Val. & C. E. Co.,372. Lalham v. Boach, 278. Lalor V. Bailroad Co., 210. Lamb v. Camden, etc., B. Co., 361. Lamb v. Falk, 210. Lamb v. Walker, 602. Lambert v. Pembroke, 308, 321. Lambeth v. North, etc., E. Co., 379, 380. Laming v. Webb, 233. Lampert v. Laclede Gas Light Co., 13. Lamphlre V. Phipos, 421, 423, 428. Lancaster Aye. I. Go. ». Bhoads, 216. Lancaster Bank v. Smith, 440. Lancaster Canal Co. v. Pamaby, 146, 281, Land Credit Co. v. Lord Fermoy, 332. Landrn v. Lund, 141, 317. iLane v, Atlantic Works, 27, 38, 519. Lane v, Cameron, 211. Lane v. Cotton, 225, 446. Lang V. Arcade Hotel Co., 417. Lang V. Honston, etc., E. Co., 539. Lang V. New Tori E. Co., 204. Langv. Pennsylvania B. Co., 338. Langan v. City of Atchison, 305, 311, 189. Langan v. St. Louis, etc., B. Co., 896, 478. Langdon ». Godfrey, 439. Langdou v. Castleton, 431. Langdon v. Humphrey, 422. Langdon v. Potter, 433. Langfeldt ». McGrath, 603. Langford v. Jones, 425. Langbam v. Young, 229. Laugher v. Forrester, 213. . Laugher v. Pointer, 220. Langhofi v. Milwaukee, etc., B. Co., 600. Langolf V. Promer, 122. Langlois v. City of Cohoes, 143, 111. Langridge v. Levy, 16. 17, 18. Langston v, Ollivant, 263. Langworthy v. Tp. of Green, 137. ~ i Lanier v. Toungblood, 115, 116. Laning v. Bailroad Co., 191. Lannen v. Albany Gas Light Co., 27, 290. Lapeham v. Cnrtis, 92. Lapointe v. lUJddlesex B. Co., 183. Lapsley v. Union Pac. E. Co., 608. Larkln v. Burlington, etc.. By. Co., 508. Larkin v. O'Neill, 280. ' Larmore v. Crown Point Iron Co., 71. Larrabee v. Peabody, 316. Larson v. Grand Forks, 305. Larson v. Metropolitan St. By. Co., 8, 216. Lary v. Cleveland By. Co., 80. Lassiter v. Tel. Co., 591. Latch V. Bumner By. Co., 526. Latham v. Boach, 72. Laughlln v. Philadelphia, 305. Laurel County Court ». Trustees of Lau- rel County Seminary, Ky., 262. Lauster». Chicago, etc.. By. Co., 173. Laverenz v. Chicago, etc., B. Co., 506. Laveronet;. Marglanti,131,282, 283. Lavery v. Manchester, 323. Lawless V. Troy, 311. Lawrence v. Combs, 109. Lawrence v. Green, 393, 186. Lawrence v. Housatonic By. Co., 191, 192. Lawrence v. Jenkins, 28, 109. Lawrence ». McGregor, 338. Lawrence v. Milwaukee, etc., B. Co., 119, 121. Lawrence v. Todd, 229. LawBon v. Chicago, etc. By. Co., 3So. LawSON on BaH-MBNTS, 69, 60, 338, 401, 111, 112. LAWSON on CONTBA.GTS, 12. Lawton v. Giles, 86. Lax V. Darlington (Mayor of), 182, 181, 198. Lay V. Midland Ey,Co., 515. Leahy v. Davis, 515. LeiCk V. Georgia Pac. By. Co., 601. Leake v. Watson, 265. Learoyd v. Godfrey, 72, 73. Leather Manufacturers' Nat. Bank v, Morgan, 141. Leavenworth, etc., E. Co.ii. Bice, 499. Leber v. Minneapolis, etc., Ey. Co.', 222. liCConteur v. London, Brighton & South Coast By. Co., 335, 336. Lederman v. Pennsylvania E. Co., 616. Ledyard v. Hibbard, 59. Leeds v. Amherst, 697. Lee V. Brlggs, 592. Lee V. Dixon, 138. Lee V. Minneapolis, etc.. By. Co., 116. Lee» Biley,109. Leen. Southern Fac. H. Co., 191. Lee V. Troy Citizens' Gas Light Co., 473. Lee V. Union B. Co., 33. Lee V. Vacuum Oil Co., 37. Lee V. Tan Toorhis, 639. Lee V. Walker, 440. Leebrick v. Eepublican Val. & S. W. B. Co., 116. LeForest v. Tolman, 132, 555. LeggettB. Gt. N. By. Co., 646. Lehigh Iron Co. v. Eupp, 639,563. Lehigh Valley E. Co. v. Grelner, 179. Lehigh Valley B. Co. v. McEeen, 47. Lehman v. Lonisiana W. B. Co., 513. Lehn v. Brooklyn City B. Co., 42, 306. Leidlein v. Meyer, 93. TABLE OF CITATIONS. 635 References are to Pages. Iielghton V. Sargent, 433, 424. Lemke v. Cblcago, etc., K. Co., 340, Lemmon v. Cbanslar, 374. Lemolne v. Cook, 125. Lemon v. Follman Falaoe Oar Co., 402, 409. Lenox v. Harrison, 529. Lent V. Howard, 258. Leonard v. Chicago £ A. Ry. Co., 344. Leonard v. Colambia Steam Nav. Co., 555. Leonard v. Maglnnls, 455. Leonard v. Storer, 104. Lel'cintnre v. S. E. Ky. Co., 358. Leslie V. City of Lewiston, 514. Lester v. Pittslofd, 474. LettiB V. Horning, 283. Levering v. Union Trans., etc., Co., 346. Levey V. Abbott, 435. < Levick v. Korton, 64. Levy V. Bank of United States, 442. Levy V. Brown, 437. Levy V. Campbell, 374. Levy V. Dry Sock, etc., E. Co.. 520. Levy V. Hale, 454. Levy V. Langrldge, 11, 36. Lbwin on Trusts, etc./ 254, 257, 258, 259, 264, 265. Lewis V. B. & O. E. Co., 52. Lewis V. Dwinell, 423. Lewis V. Flint, etc.. By. Co., 36. Lewis «. G. W. By. Co., 343, 344, 37L Lewis V. Hannibal, etc., B. Co., 52. Lewis V. London, Chatham & Dover Co., 399. Lewis V. Lndwick, 338. Lctris V. Nobbs, 262, 264. Lewis V. Biverside Water Co., 137. Lewis V. New York C. S. 0. Co., 404. Leydecker v, Brintnall, 107. Leyden v. New York, etc., B. Co., 116, Llerman v. Chicago, etc, B. Co., 552. Lilienthal v. Campbell, 449. Lilley v. Donbleday, 27. LiUey V. Fletcher, 483. Lima Electric L. & F. Co. v. Deubler,539. Llmpns V. London Omnibus Co., 204, 205, 209. Lin V. Terre Hante, etc., B. Co., 366. Linck V. Scheffel, 128, 139. Lincoln Bapid Transit Co. «. Nichols, 485. Lindsay v. Bridgewater Gas Co., 588. Lindsay v. City of Des Moines, 322. Lindsey v. Leighton, 107. Lindsley V. Chicago, etc., B. Co., 351. Linf ord v. Fitzroy, 445. Linford v. Lake, 587. Linnehan v. Sampson, 485, 487. Linning v. Illinois O. E. Co., 45. Lissa V. Goodkind, 488. Littanrc. Narragansett Pier Co., 499. Little V. Boston, etc., B. Co., 346. Little V. City of Madison, 138. Little V. Hackett, S08, 509, 510. Little V. McAdaras, 107. Little V. Superior K. T. By. Co., 466. Little V. Wirth, 108. Little Bock, etc., E. Co. v. Atkins, 379, 470. Little Bock, etc., E. Co. v. Barker, fiii, 553. Little Bock, etc., B. Co. v. Chapman, 93, 95. Little E., etc., E. Co. v. Finley, 111. Little Bock, etc., E. Co. v. Harrell, 609. Uttle Bock, etc., B. Co. v. Haynes, 24. Little Eocb, etc., E. Co. v. Henson, 121, 528. Little Bock, etc., B. Co. v. Holland, 528. Little Bock, etc., E. Co. v. Miles, 384. Little Bock & M. B. Co. v. Moseby, 493. Little Bock, etc., E. Co. v. Farkharst.503. Little Bock, etc., E. Co. v. Payne, 122, 123. Little Eock, etc., B. Co. v. Talbot, 344, 348. Little Eock & Ft. S. Ey. Co. v. Tankorsly, 379. Ltvermore v. Freeholders of Camden, 135. Liverpool Corn Trade Assoc, v. London & N. W. By., 339. Livingston v. Cox, 433. Livingston v. McDonald, 93. Livingston v. Molngona Coal Co., 9. Livingston v. EadciiS, 433. Livezey v Philadelphia, 144. Llo:rd V. Freshfield. 444. Lloyd V. Hannibal, etc., B. Co., 379. Lloyd V. Ogleby, 526. Lloyd V. St. Lonis, etc., Ey. Co., 502. Loagne v. Memphis & C. E. Co., 540. Lock Co. V. Ballroad Co., 360. Locke V. First Div., etc., E. Co., 462. Locke ». S. O. & P. E. Co., 246. Lockhart v. Lichtenthaler, 607, 509. > Lockwood V. N. Y., etc., E. Co., 553. Loeser v. Hnmphrey, 39, £83.' LofBin V. Bnflalo & S. W. B. Co., 395. Lofton V. Vogler, 548. Loftns V. Town of North Adams, 603. Loftns V. U. F. Co., 398. Logansport v. Dick, 292. Lombar v. East Tawas, 321. Lond V. Winchester, 264. London, Adm'x v. Chicago, etc., B. Co., 384. London Trnst Co. v. McEenzle, 325. Long V. Central Iowa Ey.Co., 113, 114. Long V. Morrison, 546. Long V. Oris, 438. Long V. Pennsylvania B. Co., 336. Long o. Tp. of Milford, 466. Longabaugb v. Virginia City E. Co., 87. Longmeid v. HoUlday, 11, 18. Longmore v: G. W. Ey. Co., 390. Loomis V. Terry, 128, 131. Looney v. Joliet, 320. Looney v. McLean, 107, 479. Loop t;. Litchfield, 12. Lopez V. Central Ariz. Mln. Co., 470. Lord V. Mid. Ey. Co., 356. Lortz V. New York, etc., B. Co., 506. Losee v. Bnchanan, 92. Losee v. Clnte, 12, 288. Londy v. Clarke, 591. Lonisvllle Bank v. Ylcksborg Bank, 443. LouiBvUle, etc.,E. Co. v. Allen, 493. Lonisvllle, etc., B. Co. v. Bean, 54. Lonisvllle, etc., E. Co. v. Bigger, 351. Lonisvllle etc., li. Co. v. BInion, 596. Lonisvllle etc., B. v. Black, 502. Lonisville, etc., E. Co. v. Bonhayo, 6. Lonlsville,etc., B. Co. v. Brice, 541. Lonisville, etc., E. Co. v. Brown, 122. Louisville, etc., B. Co. v. Bnck, 481. Lonisvllle, etc., E. Co. v. Case's Admr., 508. LonlsvlUe, etc., E. Co. v. Chaffln, 537. Lonisville, etc., E. Co. v. Clarhe, 931. Lonisville, etc., E. Co. v. Coniff, 465, 538. Louisville, etc., E. Co. v. Crank, 54. . 636 TABLE OF CITATIONS. Befereuces are to Pages. Lonlsvllle, etc., B. Co. v. Coppage, 638, IjonleTlUe, etc., B. Co. v. Cinnk, 379. lionisvllle, etc., B. Co. v. Dlea, 345, 353. LoniSTlUe, etc., B. Co. v. Donglaes, 202. Lonlsvllle, etc., B. Co. v. Dalane;^, ^• IiomsviUe, etc., B. Co. v. Fleming, 13, 466. LoniBTllle, etc., B. Co. v. Francis, 113. liOnlsvlUe, etc., B. Co. v. Frawley, 481, 482,698. LonisTille, etci, E. Co. v. French, 596. Lonlsvllle, etc., B. Co. v. Goetz, 474, 498. Lonlsvllle, etc., B. Co. v. Goodbar, 295. Lonlsvllle, etc., B. Co. v. Goody-Koontz, 637. ' Lonlsville, etc., B. Co. v. Gower, 6. LonlBVllle,etc., B. Co. v. Grant, 344. Lonlsville, etc., B. Co. v. Hays, 93, 95. Lonlsvllle, etc., B. Co. v. Hallawell, 399. LonisTllle, etc., B. Co. v. Hart, 89, 112, 118. Lonlsvllle, etc., B. Co. v. Head, 472. Lonlsvllle, etc., B. Co. v. Hedger, 351. Lonlsvllle, etc., B. Co. v. Holsapple, 380. Lonlsvllle, etc., B. Co. v. Howard, 466, 640. Lonlsvllle &N.E. Co.». Hnrt,461. Louisville & N. B. Co. v. Jerson, 458. Lonlsvllle, etc.; B. Co. v. Johnson, 379, 464. Lonlsvllle, etc., B. Co. v. Jones, 44. Lonlsville, etc., B. Co. v. Kelly, 378. Louisville &N. B. Co. v. Eelsey, 35, 363. Lonlsville, etc., B. Co., Krey, 501. Lonlsvllle, etc., B. Co. v. Lobges, 637. Lonlsville, etc., B. Co. v. Lncas, 394. lionlsvllle, etc., B. Co. v. Mahan, 340, 366. 367. Lonlsville, etc., B. Co. v. Hahony's Admrz., 646. Lonisvllle, etc., B. Co. v. Uerriwether, 638. I Lonl8vllle,etc., B. Co. v. Meyer, 346. Lonlsville, etc, B. Co. v. AulleT, 374. Lonlsvllle, etc., B. Co. v. Natchez, 86. Lonlsville, etc., B. Co. v. Northliigton,43. Lonisvllle.etc., B. Co. v. Oden, 344. LonisvlUe, etc., B. Co. v. Orr, 543, 662. Lonlsville & N. B. Go. v. Owens, 363. Lonlsvllle, etc., B. Co. v. Bains, 488. Lonlsville, etc., B. Co. v. Beese, 88. Lonisvllle, etc., B. Co. v. Bice, 463. Lonlsvllle, etc., B. Co. v. BIchardson, 86. 90. LonlsvUle, etc, B. Co. v. Sanford, 473. Lonlsvllle, etc.,B. Co. v. Sanders, 656. Lonlsville, etc., B. Co. v. Schmetzer, 479. Lonisvllle, etc., B. Co. v. Scott, 113. Lonlsville, etc., B. Co. v. Shanks, 689. Lonisvllle & N. B. Co. v. Shelton, 119. LonlsvlUe,etc., B. Co. v. Sherrod, 345. Lonlsvllle, etc., B. Co. v. Slcklngs, 63, 378. Lonlsville, etc., B. Co. v. Snider, 44, 374. Lonisvllle, etc., B. Co. V. Sparks, 603. Lonisvllle, etc.,B. Go. v. Sianger, 32. Lonlsville, etc., B. Co. v. Stommel, 499. Lonlsvllle, etc., B. Co. v. Taylor, 386. Lonlsvllle,etc., B. Co. v. Tonait, 338. Lonlsvllle, etc., B. Go. v. Trammel, 637. Lonlsvllle, etc., B. Co. v.WhiteBell, 120. Lonlsville, etc.B. Co. v. Wldman,351. Lonlsville, etc., B. Go. v. Wilson, 339. Lonlsville, etc, B. Co. w. Wolfe, 894. Lonlsville, etc.. By. Co. v. Wood, 27. Lonlsville, etc., B. Go. v. Wynn, 352. Lonisvllle Safety-Vanlt & Trast Co. t>. Lonlsvllle £ N. B. Co., 638. Lovegrove v. White, 436. Loyeioy v. Dolan, 66. LoveU V. De Bardelaben Goal & L Co., 641. . LoveU V. D. C. & D. B. Co., 363.' Lovett V. Thomas, 255. ' Low V. Grand Tmnk By. Co., 73, 490. Lowe V. Chicago, etc.. By. Co., 546. Lower v. Franks, 426, 493. Lowery v. Manhattan B. Co., 32, 39. Lowrey v. Brooklyn, etc, B. Co., 139. Lowery v. W. U. TeL Co., 26. Lncas v. Mason, 206. Lncas v. Mich. Cent. B. Co., 204. Lncas V. Tmmbnil, 211. Lncey«. Hannibal Oil Co.. 494. Lnck V. Zapp, 456. Lncy V. Ingram, 213. Lndeling v. Stnbbs, 93. Lndlow V. Fargo, 318. Lnf kin v. Zafse, 106. Lnkln v. Uodsall, 603. Lnmley v. Caswell, 494. Lnmley ». Gye, 36. Lnmsaen v. Bnssell, 613. Lnnd v. TyDgsboro,485. Lnnn v.'L.&'S. W. By. Co., 200. Lnsh J. Lox e. Darlington, (Mayor of), 276. Lnsh J. Owen v. 6t. W. By. Co., 400. Lnsk V. Belate, 412. Lnstig V. New York, etc, B. Co. 639. Lntcher & Moore Lbr. Co. v. Dyson, 601. Lntherv. Worcester, 312. Lyman v. Hampshire Co., 146. Lydecker v. Valentine, 692. Lynch v. Brooklyn City B. Go., 50. Lynch v. Bnffalo, 319. Lynch v. Commonwealth, 428, 43& Lynch v. Erie, 315. Lynch v. McNally, 129. Lynch V. New York, 94, 303, 314. Lynch v. Northern P. E. Co., 35. Lynch v. Nnrdln, 31, 283, 286, 515, 616, 518, 520. Lynch v. Sellers, 692. Lynch v. Smith, 614. Lyndsay v. Conn., etc, B. Co., 628. Lyon ti. City of Logansport, 29, 311. Lyon V. Desotclle, 481. Lyon t>. Horner, 463. Lyons v. Martin, 209. Lyons v. Bosenthal, 629, 63L Lyons v. Terre Hante, etc., B. Go.,472. LytUe V, Chicago & W. M. By. Co., ^. M. McAdoo V. Bichmond & D. B. Co., 24. McAllister v. Clement, 452. McAlpIn V. Powell, 74 105. McAlory v. Lonlsvllle & N. B. Co., 543. McAndrewB v. OoUered, 294. McArtbnr v. City of Saginaw, 143. McAnnich ». Mississippi, etc. B. Co., 246,376. McBaIn v. Smith, 648. McCabe v. Old Dominion S. S. Co., 491. McCafferty v. The Ballroad, 292. McCaffrey e. President, etc, Del. & H. 0. Co., 60S. TABLE OF CITATIONS. 637 BeferenceB are to Pages. MoOabill v. Detroit City Ev., 552. McCaUt;. Chamberlain, 110, 111, 119. McGallam v. Lons Island K. Co., S09. McCandless v. McWba, 123, 425,126. McCance v. London, etc., B. Co., 355. McCann v. Kings Co. El. B. Co., 215. HcCann v. L. & N.W. By. Co., 343, 347, 349. McCann v. Sixth At. B. Co., 485. McOaraher v. Commonwealth, 1-2, 4S3. McCarthy v. Cass Avenue & F. 6. B. Co., 520. McCarthy v. Chicago, etc, B. Co., 566. McCarthy v. New York, etc., Savings Bank, 108. McCarthy V.Portland Second Parish, 215. M'Carthy v. Yonng, 467. McOarty v. Gnlf, etc , By. Co., 348. Mccarty v. New York, eta, B. Co., 340. McCasklll V. BUlott, 126, 126, 283. MoOaslln v. Lake Shore & M. S. By. Co., 380. McGanley v. Tennessee C, I. & B. Co., 52. McOawIey v. FnmeSB By. Co., 343. McOlain v. Brooklyn City B. Co., 485. UcClaren v. Ind., etc., B. Co., 61. McClary v. Sioux, etc. City B. Co., 36, 47, 338. McClellan o. Hnrdle, 97. McClelland v. LonlsvUle, etc, B. Co., 36. McClnng V. Dearbome, 207. McClnre v. City of Bed Wine, 94. McClnre v. City of Sparta, 38. McConnell v. Noifolk & W. B. Co., 360. McConnell v. Osage, 322. McCorkle v. Chicago, etc., B. Co., 384. McCormick v. City of Amsterdam, 295. McCormlck v. Hudson Blver B. B. Co., 364. McCormlck v. Kansas City, etc., B. Co., 96. McCormick v. Tp. of Washington, 146. McCowley v. The Furness By. Co., 386. McCoy V. CalUornia Fac. B. Co., 119, 122, 528. MoOoy V. MoKowen, 206. McCoy V. Bailroad Co., 352. McCoy ». Southern Pac. Co., 111. McOracker v. Markesan, 314. McCroryv. Chicago, etc, By. Co., 605. McCue V. Knoxville, 315. McCnllongh v. Shoneman, 71. McCutchen v. Homer, 137. McDaneld v. Lo^i, 309. McDanlels v. Bobinson, 412. McDermottt;. Third Av. E. Co., 473. McDonald v. Ashland, 308, 318. McDonald v. Chicago, etc., !E. Co., 393, 391,603. McDonald v. Eagle, etc., Mnfg. Co., S41. McDonald v. Highland By. Co., 334. McDonald v. International & 6. N. By. Co., 266. McDonald v. Jodrey, 125. McDonald v. Mass. Genl. Hospital, 208. McDonald v. Flttsfield, etc., E. Co., 111. McDonald v. Union Fac. By. Co., 76. McDonnell v. Philadelphia, 311, 313. McDonnell ».Pitt8fleld,eto.,Ey. Co., 119. McDoNKELi. ON Master and Sekvant, 252. McDongall v. Central, etc., E. Co., 470. ■ McDowell V. Chesapeake, etc.,B. Oo.,491. McEIreath v. Middleton, 438. MoElroy v. Goble, 97. McFadden v. Missouri Fac By. Co., 344, 363. MoFeer ii. LeBow, 461 . McGaren v. Atlantic & W. B. Co., 54. MoGarry v. Loomis, 520. McGarryv. New York & H. B. Co., 127. McGiffin V. Palmer's Co., 229. McGlnty v. Keokuk, 315, 479, 486. McGoldrlck v. New York, etc., B. Co., 479. McGown V. International & G. N. B. Co., 643. McGrail v. Kalamazoo, 318. 321, McGrath v. Detroit, etc,B. Co., 113. McGrath i>. New York Central, etc, B. Co., 372, 504. McGrath v. Tillage of Bloomer, 24. McGrath v. Walker, 105. McGraw v. B. & Q. B. Co., 337. McGrew v. Cato, 648. McGucken v. Western N. Y. &P. E. Co., 382. McGuerty v. Hale, 50. McGuiness v, Batler, 619. MoGnlnnis v. Worcester, 315. McGuire v. Chicago, etc.. By. Co., 520. McGulre v. Grant, 6, 7, 10, 214, 603. McGuire v. Eingrose, 282. McGnire v. Spence, 82, 620. Mclntire v. Boberts, 37. Mclntyre v. New York, etc., E. Co., 544. McKeigue v. City of Janesville, 315, 320, 429. t McKeller v. Tp. of Monitor, 32, 144, 461. MoKenna v. Baessler, 85. McKenzie v. Cheetbam, 107. McKenzie v. City of Nortlifleld, 314. McKeon v. Cutter, 107. McKinney v. Chicago & N. W. By. Co. 502. McKinney v. Noll, 527. McKnighc V. I. & M. B. Const., 246. McEone v. Michigan Cent. E. Co., 397. McLaren v. Atlanta & W. P. E. Co., 379. McLaughlin v. Arinfieid, 489. McLaughlin v. Bangor, 690. McLaughlin v. Corry, 695. McLaughlin v. Prior, 213, 220. McLean v. Bumham, 74. McLean v. Ficke W. & W. Co., 107. McMahon v. Davidson, 38, 623. McMabon v. Field, 28. McMahon v. Northern, etc, B. Co., 614. McManus v. Crickett, 205. McManus v. L. & Y. By. Co., 343, 349. McMartin v. Hanay, 78. McUillan V. Staples, 7. McDfillen v. Wait, 8. McMurtry ». Louisville, etc. By. Co., 375. McNally v. Coboes, 317. McNamara v. Tillage of Clintonville, 41, 193. . McNear v. Wabash By. Co., 112. McNnlt V. Livingston, 453. McPadden v. New York, etc, B. Co., 374, 375. McPartland v. Thorns, 106. McPtaerson v. District of Colnmbla, 319. McQueen v. Great West. Ey. Col, 342. McQnilken v. Central Fac B. Co., 470. McEickard v. Flint, b5. McSherry V. Caoandaigua,306, 32L McSloop V. Bichmoud & D. E. Co., 54. 638 TABLE OF CITATIONS. References are to Pages. AIcTee v. Vicksbnrg, etc., B. Co., 5S9. McWilllams v. Hopkins, 431. Macaalay v. Farness By. Co., 371. Macbeat^ v. Ellis, i'H. MACDOITNELI. on M4STEB AND SEB- VANT, 213. Macey v. Hodson, 238. Macbn v. London & S. W. By. Co., 341. Maokay v. W. V. Tel. Co., 593. Mackenzie v. McLeod, 203. Mackey v. Adair, 487. Mackey v. City of Vicksbnrg, 515. Mackln v. New Jersey Steamboat Co., 349. Mackoy V. Mlssonri Fac. By. Co., 602. Maclennan v. Long Island B. Co., 186. Macon, etc.,B. Co. v. Davis, 463. Macon, etc., B. Co. v. Mayes, 372. Macon, etc., B. Co. v. Winn, 598. Maorew v. G. W. By. Co., 361, 362. Maddox v. Biown, 200. MSddox ». L. C. & D. By. Co., 400. Madison, etc., B. Co. v. Bacon, 541. Magee v. Troy, 321. Magee v, Faciflc Imp. Co., 417. Maglnnls®. City ol Brooklyn, 76, 77. Magner v. Truesdale, 499. ~ Magain v. Dinsmore, 386. Magulre «;. City of CartesvlUe, 98. Magulre v. Middlesex B. Co., 377. Maber v. Boston & A. B. Co., 551. Mahler v. Norwich, etc., Transp. Co., 555. Mabon v. Barns, 215. Maboney V. Atlantic, etc., B, Co., 372. Maboney V. County of Middlesex, 433 Maignau v. New Orleans, etc., B. Co., 340. Mairs v. Manhattan Beal Estate Asso- ciation, 96. Mallacb v. Bidley, 208. Mallory v. Ferguson, 453. Mallory v. Griffey, 474. Malone v. Boston, etc., B. Co., 365. Malone v. Knowlton, 126. Malone v. Flttsbargb & L. E. B. Co., 489. Maloney v. Bacon, 414. Maloy V. St. Fanl, 315. Maloy V. Wabash, etc., By. Co., 503. Maltble v. Bolting, 215, 224. Maltby v. Chapman, 416. Mardis v. Shackleford, 433. i May V. Bnrdett, 285. Mandeville v. Beynolds, 487. Mangan v. Atterton, 31, 617. Mangau v. Foley, 216. Manger v. Shipman, 126. Maniey v. Boston & M. B. Co., 61. Manley V. Wilmington, etc., B. B. Co., 51, 461. Mann v. Boudoir Car Co., 409. Mann v. Central, etc., B. Co., 506. Mann v. Oriental P. W.> 210. Mann v. Taylor, 591. Mann v. Trabue,548. Mann v. Weiand, 127, 507. Mannerman v. Seimerts, 71. Manning v. Wells, 412. Manning v. Wilkin, 439. Manser v. East Co. By., 396. Mansfield Coal & Coke Co. v. McEnery, 651. '• *■ Mantel v. Chicago, etc.. By. Co., 479. Manufacturing Co. v. Morrlssey, 494. Manzonl v. Douglas, 626. Marble v. Boss, 126, 128, 465. March v. Walker, B42. Mardis V. Shackleford, 432, 433. Martel v. South Wales By. Co., 110, 121. Marietta, etc., B. Co. v. Stephenson, 110, Marine Ins. Co. v. St. I/Ouls, etc.. By. Co., 338. • Marlon v. Chicago, etc., B. Co.,.e04. Marion Safe Co. «. Warde, 13. Marlon St. B. Co. v. Shalfer, 62, 377. Mark v. St. Fanl, etc., B. Co., 486. Market ». St. Louis, 306. Markham v. Houston D. X. Co., 609. Markle v. Borough of Berwick, 304. Markley v. Amos, 438. Marks v. Petersburg B. Co., 502. Mars V. Delaware & H. C. Co., 37. Marsel v. Bowman, 125. Marsh v. Cblckerlng, 496. Marsh v. Hand, 214. Marsh v. Jones, 126, 282. Marsh v. Whitman, 428. Marshall v. Cohen, 105. Marshall v. Farmers &M. S. Bank, 324. Marshall v. Welwood, 92, 276. Marshall v. T. & N . By. Co., 368, 370, 371. Marsland v. Murray, 614. Martin v. Baltimore, etc., B. Co., 384. Martin v. Bell, 452. Martin v. Bishop, 91. Martin v. Cabill, 613. Martin v. Capital Ins. Co., 437. Martin v. Gleason, 96. Martin v. Glbster, 481. Martin v. G. In. Fen. By. Co., 347. Martin v. Martin, 548. Martin v. Missouri P^c. By. Co., 489. Martin v. New York, etc., B. Co., 86, 87, 499. Martin v. North Star Iron Works, 38. Martin v. St. Louis, etc., By. Co., 27. Martin v. Tribune, 216. Martin v. Western, etc., B. Co., 90. MartlnsTllIe v. Shirley, 303. Marty v. Chicago, etc.. By. Co., 606. Marvin v. Chicago, etc.. By. Cd.,45. Marvin v. New Bedford, 307, 321. Marwedel v. Cook, 106. Maryland Central B. Co. v. Neubeur, 500. Marzetti v. Williams, 125, 438, 44L Mason v. Barker, 601. Mason v. Ellsworth, 696. Mason V. Keeling, 282, 284. Mason v. Missouri, etc., B. Co., 465. Mason V. Sainsbury, 588. Mason v. Spartanburg County, 36. Mason v. Thompson, 411, 412. Masonic Temple Assoc, v. Harris, 96. Masser v. Chicago, etc., B, Co., 520. Massey v. Goyder, 69. Masten v. Webb, 464. Masters v. Troy, 319, 322. Masters ». Warren, 896, 697. Masterton v. Mount Vernon, 140, 695. Masterson v. New York, etc., B. Co., 509i. Mathews v. Qedar Baplds, 321. Mathews v. St. Louis & S. P. By., 86. Mathiason v. Mayer, 56. Matteson v. Strong, 129. Matthews v. Kelsey, 139. Matthews v. Warner, 491. Mattocks t>. Moulton, 264. Matz V. St. Paul City By. Co., 877. Maultby V. Leavenworth, 311. TABLE OP CITATIONS. 639 References are to Pages. Mateer v. Biown, 412. Maxey v. Missonrl Fac By. Co., 501. Maxim V. Town of Champion, 65. Maxwell on Statotbs, 227. Maxwell v. Gerard, 414. May V. Bnrdett, 124, 285. May V. Central B. & B. Co., 475. Mayberry v. Concord R. Co., 119. Mayer v. New York Cent., etc., B. Co., 95. Mayer v. Thompson-Hntcliison Bldg. Co., 252. Maybew v. Burns, 518, 552. Mayhew v. Nelson, 336. Maynard v. Boston, etc., B. Co., 111,112. Matne on Damages, 26. Mayo ti. Boston, etc., B. Co., 474. Mayo V. Sprin^eld, 302. Mayor v. Bailey, 212. Mayor v. Fonlkrod, 437. Mayor, etc., Americus v. Bldridge, 304. Mayor, etc., Colchester ». Brooke, 517. Mayor, etc., of EnoxviUeo. Bell, 320. Mayor, etc., of Lynne Begls v. Henly, 294. Mayor, etc., of Savannah v. Cleary, 95. MaysTiUe, etc., E. Co. v. Herrick, 589. Maysville Street R. & T. v. Marvin, 555. Meacham v. Dndley, 430, 431. Mead v. Bnrliogton, etc., li. Co., 119. Medawar v. Grand Hotel Co., 415. Medina v. Perkins, 146. Meeks v. Soothern, etc., B, Co., 514. Mehegan v. New York, etc , B. Co., 500. Meibus v. Dodge, 125, 129, 520. Meier v. Bailroad Co., 274, 373, 374. Meier v. Sbmnk, 284. Meinzer v. City of Bacine, 301. Melboarne v. Louisville & N. B. Co., 360. Mele V. Delaware & H. C. Co., 473. MeUor V. MlBSOnri Pac. By. Co., 385. Memphis, etc., B. Co. v, Copeland, 52, 504. Memphis & Little Bock, etc., B. Co. v. Horsfall, 123. Memphis, etc., E. Co. v. Holloway, 348. Memphis & Ohio Blver Packet Co. v. Ma- Cool, 529. Memphis &L. B. Co. v. Salinger, 479. Memphis, etc., B. Co. v. Southern Exp. Co., 336. Memphis, etc., E. Co. v. Whitefield, 381, 595 596. Memphis & O. E. Co. v. Womack, 555. Menders v. Gnadella, 257, 262. Meracle v. Down, 486. Merrick v. Bralnord, 213. Merrill v. Claremont, 323. Merritt v. Fitzgibbons, 35. Mersey Docks v. Glbbs, 223, 225, 270, 292, 298, 299, 300, 446. Messenger v. Pennsylvania B. Co., 339. Messenger v. Dennie, 513. Metcalf V. London, Brighton & Sonth Coast By. Co., 341, 342. Mercer v. Jackson, 271. Merchants Despatch Transp. Co. d, FIrtbman, 346. Mercbants Despatch Co. v. Comfortb, 344. Merchants' Wharf -Boat Assoc, v. Smith, 59. Meredith v. Beed,125. Meredith v. Eicbmond & D. B. Co., 476. Mergenthaler v. Kirby, 76. Merreweather v. Nixon, 604. Merrill v. Eastern B. Co., 472. Merrill v. Greenville, 364, 406. Merrill v. North Yarmoath, 479. Merritt v. Claghorn, 411, 412. Merritt v. Fatnam, 430. Merwin v. Bogers, 451. Metallic 0. C. Co. v. Fitchburg E. Co., 34. Metcalfe v. Cnnard S. S. Co., 77. Metropolitan By. Co. v. Jackson, 24, 25, 397,403. Metropolitan St. B. Co. v, Johnson, 599. Metropolitan St. B. Co. v. Powell, 49, 509. Metz V. California S. B. Co., 365. Metzer v. Chicago, etc.. By. Co., 86. Mexican Cent. Ey. Co. v. Lanricella, 383. Mexican N. B. Co. v. Massette, 27. Meyer v. Atlantic, etc., B. Co., 122. Meyer v. LIndell Eailway, 63. Meyer v. Second Avenue Ey. Co., 203. Meyers v. Fritz, 94. Meyers V. Wabasb,etc,, E. Co., 355. Meyers v. Walker, 59. Michael v. Stanley, 494. Michaels ». N. 'Y. C. E. Co., 48. Michigan, etc., B Co. v. Heaton, 345. Micbigan Cent. E. Co. v. Ward, 340. Michigan Cent. E. Co. v. Mineral Springs Mfg. Co., 360. Michigan Southern, etc., E. Co. u. Mc- Donongh, 351. Michle V. Douglas, 6. Middleton v. Holmes, 548. Midland Ey. Co. v. Bromley, 362. MidlandBy. Co. v. Daken, 118. Midland By. Co. v. Gascho, 112. Midland By. Co. v. Taylor, 259, Mihills Mfg. Co. V. Day, 592. Mllarkey v. Foster, 142. Miller v. Chicago, etc., B. Co.. 117. Miller v. City of Morrlstown, 302. Miller V. Hancock, 107. Miller V. Martin, 85. Miller V. Manhattan Ey. Co., 598. Miller o. Minnesota &N. W. By., 215. MUier V. New York & N. & W. E. Co., 373. MUler V. Peeples, 413. Miller v. Pennsylvania E. Co., 76. Miller V. Proctor, 295, Miller v. Scott, 433. Miller v. Scare, 445. Miller v. St. Paul, 307, 318. Miller V. Wilson, 429. Miller V. Woodbead, 78. Millie V. Manhattan Ey. Co., 524. MlUigan V. Wedge, 221. Milliman v. N. Y., etc., E. Co., 381. Mills V. Chicago, etc., B. Co., 86. Mills V. Hoffman, 267. MUlB V. Holton, 458. Mills V. New York, etc., E. Co., 130. Mills V. Stark, 111. Millwardu. Midland By. Co., 233. Mllsheimer v. Sullivan, 131. Milwaukee, etc., E. Co. v. Arms, 24, 689. Milwaukee, etc., B. Co. v. Kellogg, 46. Miner*. Conn. Blver E. Co., 39, 480. Minerley ». Union Ferry Co., 482. Minor J). Shann,108. Minor v. Staples, 412. Minster v. Citizens By . Co . , 610. Mishler v. O'Grady, 83. MIssimer v. Bailroad Co., 373, 640 TABLE OP CITATIONS. References are to Pages. Misslaelppi B. Co. v. Kennedy, 364, 36S. Mississlppt, etc.,B. Co. v. Miller, 111. Mlseonri Fnmace Co. v. Abend, 473,474. Missouri Pao. Hy. Co. v. Abney, 123. Mlssoali Pac. |ly. Co. v. Baler, 654. Missouri Pac. By. Co. v. Bartlett, 86. Missouri Pac. By. Co. v. Bond, 654. Missouri Pac. Ky. Co. v. Breeding, 359. Missouri Pac. By. Co. v. Childers, 364. Missouri, etc., B. Co. v. Cornell, 91. Missouri Pac. By. Co. v. Cornwall, 345, 364. Missouri Pac. By. Co. «. Cullers, 45. Missouri Pac. B. Oo. v. Dunham, 373. Missouri Pac. B. Co. v. Eckel, 112, 115, 118. Missouri Pac. B. Co. v. Pagan, 338. Missouri Pao. B. Co. v. Finley, 130. Missonii Pac. B. Co. v. Harris, 345, 361, Missouri Fac. B. Co, v, Missouri Pac B. Co. v. Missouri Fac. B. Co. v. Missouri, etc.,B. Co. v Missouri Pac. B. Co. v Missouri Pac. B. Co. v Missouri Fac. B. Co. v Missouri Pac. B, Co. v. Missouri Pac. B. Co. v. Missouri Pac. B. Co. v. Missouri Fac. B. Co. « Missouri Pac. B. Co. v. Missouri Fac B. Co. Henry, 540, 647. Eincald, 88. Eocber, 113. Leggett, 113. Lee, 501. , Levi, .338. Lewis, 655. Long, 391. Lyde, 698. KeviU, 356. . Feay, 501. Bentro, 95. , V. BIarley Main Colliery Co., 9, 70, 303. Mitchell V. Georgia B. Co., 362, 354. Mitchell V. L. & T. By. Co., 334. Mitchell V. Mims, 548. Mitchell V. Plattsburg, 318. Mitchell V. Bochester By. Co., 44. Mitchell 17. Tacoma By. & M. Co., 620. MOAK'S UltTDEKHILI. ON TOBIS, 494. Moberly v. Kansas City, etc.. By.- Co., 471. , Mobile, etc., B. Co. v. Ashcraft, 487. Mobile, etc., B. Co. v. Copeland, 360. Mobile, etc., B. Co. v. Crenshaw, 470. Mobile,etc., B. v. HopMns, 365, 386. Mobile, etc., B. Co. v. Hudson, 628. Mobile,etc., B. Co. v. Klein, 485. Mobile, etc., B. Co. v. Mnlllns, 489. Mobile, etc., B. Oo. v. Pre Witt, 59. Moblle.etc, B. Co. v. Seals, 204. Mobile, etc., B. Co. v. Stroud, 602. Mobile, etc., E. Co. v. Watly, 462, 552. Mobile, etc., B. Co. v. Weiner, 336. Mobile, etc., K. Co. v. 'WilUams, 122, 336. Moe V. Smiley, 636. Moellering v. Bvana, 8, 10. MoSat o. Bateman, 63, 79, 458, 523. Moffatt V. Tenney, 643. Mogarity v. Wilmington, 302. Mohr V. Chicago, etc., B. Co., 340. Mollie eibson Con. M. & M. Oo. v. Sharp, 553. Monmouth «. Snlllyan, 316. Monongahela Bridge Co. v. Bevard, 146. Monongahela City v. Fischer, 466. Monroe v. The Iowa, 345. Montgomery v. Eoester, 131. Montgomery Co. Union Agt. Soc v. Har- wood, 592. Montgomery v. Trustees Augusta, 7. Montgomery v. Wright, 319. , Montgomery, etc., By. Co. v. Chambers, 463. Montgomery, etc., B. Co, v. Calves, 360. Montgomery, etc.. By. Co. v. Thompson, 479. Montgomery,eto.,By.Co. w.Wallette, 373. Montgomery Gas Light Co. v. Montgom- . ery & E. By. Co., 461, 471. Monteithv. Finkbeiner, 103,278. Moody V. Minneapolis & 8. T. By. Co.i 120. Moody V. New York, 103. Moody t;. Osgood, 598. Moody V. Ward, 286. Moon V. Iowa, 306, 318. Mooney v. Hudson Biver B. Qo.. 509. Mooney v. Trow D., P. & B. Co., 66. Moore v. Olilcago, etc.. By. Co., 87. Moore v. CiW of Shreveport, 472. Moore v. Edison E. L Co., 479. Moore v. Gadsden, 28, 309. Moore v. Kenockee Tp., 144. Moore v. Met. By. Co., 203. Moore v. New York, etc.,B. Co., 501, Moore ». Norfolk & W. B. Co., 479. Moore v. Parker, 631. Moore v. Fennsylyanla B. Co., 61. Moormannv. Seattle & M. By. Co., 692. Mootry v. Town of Danbury, 145. Morey v. Fitzgerald, 316. Morehouse t;. Dixon, 315. Moreland v. Holland, 267. Moreton v. Hardern, 603. Morford v. Woodworth, 688. Morgan V. Durtee, 644, 654. Morgan v. Cox, 271. Morgan v, Giddinga, 428. Morgan v. Joyce, 436. Morgan v. London General Omnibus Co., 229. Morgan v. Fenn. B. Co., 75, Morgan v. Bavey, 414. Morgan v. Boberls, 4^. Morgan v. Southern Pao. Co., 286, 489, 662. Morgan v. Dibble, 337. Morier v. St. Paul, etc. By. Co., 200. Morley v. Morley, 256. Morrassy v. New York, 308. Morressey v. Providence & W. B. Co., 37. Morrill V. Graham, 428. Morrill V. Hurley, 93. Morris v. Chicago, etc., B. Co., 462,695. Morris v. Eighth Av. B. Co., 62. Morris v. Louisville & N. B. Co., 638. Morris v. New York Cent. B. Co., 397, Morris, Adm's v. Chicago, etc, B. Co., 508, 612. Morris, etc., B. Go. v. Haslan, 602. Morrison v, Broadway & S. A, B. Co., 376. Morrison v. Buchsport B. Co., 96. Morrison v. Davis, 47, 338, TABLE OF CITATIONS. 641 References are to Pages. Monlsonv. Erie By. Co., 54, 517. MoiTlson V. Lathlmer, 6. Morlseey ». Chicago, etc.B. Co., 95. Morrlssey v. Eastern E. Co., 520. Morrit v. N. East By. Co., 335. Morrow ti. Korth Birmingham St. By. Co., 44. MOBSE ON BADKS, 444. Morse v. Blchmond, 143. Morton v. Gloster, 482. Morton v. Smitb, 309. Mose V. Bastin;;s Gas Co., 390. MoBeleyj). Wilkinson, 211. Mosher V. Inhabitants of Smithfield, 472. Mosier v. Beale, 127. Moses V. Boston, etc , B. Co., 340, 345, 346. Moss V. Bnrlinfcton, 317. Moss V. Paidridge, 127, 131. Mott V. Consumers Ice Co., 206. Monlton v. Aldrlch, 478. MoulCou V. Inhabitants of Scarborcngh, 125. Monlton v. Phillips, 69. Monlton v. St. Panl, etc. By. Co., 347, 349, 355. Monnd City P. & C. Co. v. Conlon, 205. Mower v. Liecester, 135. Moylan v. Second Av. E. Co., 53. Moyle V. Jenkins, 238. Moyle V. Moyle, 258. Moynlhan V. Whldden, 78. Mncci V. Honghton, 423. MncUe v. Bochester By. Co., 589. Mnellerv. Bethseda MIn. Spring Co., 592. Mneller v. Milwaukee St. By. Co., 35. Mnhl's Admr. v. Michigan Southern B. Co., 535. Mnlcaimes v. JanesvlUe, 301, 531. Mulchahey i;. Washburn Car Wheel Co., S44. Mnldoon v. Seattle City By. Co., 52, 377, 385. Mulherrin ». D. D. L. & W. E. Co., 249. Mnlherrln v. Henry, 127. MuUaney v. Spence, 78. Mullen V. St. John, 523, 529, 530, 532. Muller V. McEasson, 129. Mullerii. Newburg, 313. Mulligan V. New York & B. B. Ey. Co., 208. Mnlvane v. South Topeka, 317. Mulvlhill V. Bates, 200. Mumby v. Bowden, 21ff. ' Munday v. Thames Iron Works Co., 227, 242. Mnnger v. Waterloo, 322. Munk V. City of Watertown, 304, 305. Munley v. Hull, 503. Mann v. Birchard, 346. Mnnn v. Beed, 129. Munro v. Pacific Coast D. & B. Co., 542, 543. Mnnster v. S. E. Ey. Co., 342. Murchison v. Serges t, 415. Mnrdock v. Walker, 38. Murphy v. Atlantic & W. P. B. Co., 401. Murphy v. Brooks, 140, 141. Murphy v. Caralli, 213. Murphy v. Chicago, etc., B. Co., 91, 472. Murphy v. O. B. I. & P. E. Co., 246. Murphy v. Lowell, 306. Murphy a.-New Haven Co., 561. Murphy v. New York, etc., E. Co., B45, 660. Murphy v. St. Louie, etc., B. Co., 54, 376. Murphy v. Suburban B. T. Co., Ul. Murray V. Marshall, 413. Murray v. McShane, 71,630, 632. Murphy v. Met. District By. Co., 404. Murray v. Missouri Faciflo By. Co., 471. Murray v. Young, 126, 282. Murrell V. Pacific Express Co., 359. Murtaugh v. New York, etc., B. Co., 494. Muse w. Stem, 214. Muser v. Holland, 348. Muster v. The Chicago, etc., Ey. Co., 396. Myers v. Baltimore & O. E. Co., 600. Mynard v. Syracuse, etc., B. Co., 385. Mynning v. Detroit, L. & N. B. Co., 473, N". Nagel V. Missouri Pacific E. Co., 78, 275, 493, 619. Nagle V. Alexandria & F. By. Co., 372. Nagle V. Cailtornla S. B. Co., 475. Nance v. St. Louis, etc., B. Co., 122, Napier v. Baiwinkle, 7. Nashv. Muldoon,454. Nash V. Frimm, 648. Nash v. Sharpe, 698. Nash V. Swinburne, 438. Nashua I. & S. Uo. v. Worcester & K. B. Co., 34. Nashville, etc.,B. Co. v. Carroll, 491. Nashville, etc., B. Co. v. Comans, 111. Nashville, etc., B. Co. v. Eakin, 665. Nashville, etc., Co. v. Estes, 338. Nashville, etc , B. Co. v. Johnson, 345. Nashville, etc., B. Co. v. Prince, 560, 687. Nashville, etc., B. Co. v. Smith, 640. Nashville, etc., B. Co. v. Sprayburg, 360. Nashville, etc.,B. Co.ti. Stevens, 542. Nasler e. Chicago, etc.. By. Co., 61. Natchez Cotton Mills Co. v. Mullins, 639. National Bank of Commonwealth v. Grocers* National Bank, 442. National Bank of North America, etc. v. Bangs, 442. Nave V. Flack, 62, 72, 280. J^avasota v. Pearce, 137. Naylor V. Mountain Stone Co., 319. Neal V. Boston, 321. Neal V. Farmer, 648. Neal V. Wilmington, etc., E. Co., 340. Neanow v. trUech, 461, 482. Necker u. Harvey, 12. Needbam v. Grand Trunk E. Co., 640, 542, 546. 555. Needbam v. Louisville & N. B. Co., 5. Neff's App., 255, 257. Nehrbas i>. Central, etc., B. Co., 470. Neler v. Missouri Fac. By. Co., 471. Neilson V. James, 444. Neitzey v. Baltimore & P. B. B. Co., 139. Nelllng V. Industrial Mfg. Co., 494. Nelson V. Atlantic, etc., E. Co., 462. Nelson v. Boston & N. E. Co., 691, Nelson V. Bondnrant, £48. Nelson v. Chicago, etc., B. Co., 60, 118, 474. Nelson v. City of Helena, ill. Nelson ti. Harrington, 424, 426, 493. Nelson v. Lake Shore, etc., Ey. Co., 645. Nelson v. Liverpool Brewery Co., 101, 102. 41 642 TABLE OF CITATIONS. References are to Pages. Nelson v. St. Lonis & S. F. By. Co., 114, 122. STelson v. Vermont, etc.. By. Co., 371. Nelson v. Woodiaff, 339. Nesbet v. Town of Gaidenei, SOS. Nevin V, Fnllman Palace Cai.Oo., 408. Nevins v. Lowe, 423. Newall V. Bartlett, 73. Newbeig v. Uunshower, 454. Newbold v. Coltman, 465. NewBiunswlck SleanuNaT. Co. <;. Tiers, 337. Newcomb t>. Boston Protective Depart- ment, 461. Newell II. Cowan, 648. New England Express Co, v. M. C. B. Co., 339. New England By. Co. v. Wanless, 281. New Jersey Express Co. v. Nichols, 471. 474. New Jersey B. Co. v. Eennard, 378. New Jersey Transp. Co. v. West, 602. Newlin Tp. v. Davis, 143. Newman v. Ernst, 66. Newman v. ^izer, 433. Newman v. PliillipsbQreli St. C. B. Co., 616, Newman v. Washington, 432. New Orleans, etc,, Ins. Co. v. New Orleans, etc., B. Co., 346. i New Orleans, etc., B. Co. v. Allbrltton, 627. New Orleans, etc., B. Co. v. Enochs, 628. New Orleans, etc., B. Co. v. Beese, 221. New Orleans, etc. , B . Co. v. Schneider, 63, 378, 490. New Orleans, etc.,B. Co. v. Thomas, 384. Newport News & M. V. Co. ■». Howe, 40. New Biver Co. v. Johnson, 298. New Tort, etc., B. Co. v. Ball, 382. New York, etc., B. Co. v. Estill, 353. New York, dtc., B. Co. v. Enohes, 880. New York, etc., B. Co. v. FraloS,364, 405. New York, etc., B. Co. v. Eellam, 600. New York, etc., B. Co. v. Katac. 609. New York, etc., B. Co. v. Lockwood, 384. New York, etc., B. Co. v. Lyons, 494. New York, etc., B. Co. v. Martin, 437. New York, etc., B. Co. v. Bandel, 505. New York, etc., B. Co. v. Skinner, 112, 121. New York, etc., B. Co. v. Steinberger, 608, 509, 510. Nicholas V. New York Central, etc., B. Nichols V. Chicago, etc., B. Co., 478. Nichols V. Dennis, 434. Nichols V. Gt, Sonthern Co., 399. Nichols V. Macsland, 23, 92. Nichols V. City of Dnlatb, 302. Nichols v. St. Paul, 306. Co., 353. Nicholson v. Erie B. Co., 279. Nicholson v. L. & Y. By. Co., 389. Nicholson V. Monnsey, 225, 446. Nickerson v, Bridgeport Hydranlic Co., 13. Nickerson v. Harriman, 640. Nicklln V. Williams, 9. Nlninger v. Norwood, 93. Nissen v. Missouri R. Co., 480. Nitro-Fhosphate Co. v. L. A-St. K. Docks, . 29k 43, 46, 599. Nixon V. Phelps, 432. Noble V. City of Bichmond, 136, 317. Noble V. St. Joe & B. H. St. By. Co., 39. Noble 11. Whetstone, 453. Nobles V. Hogg, 264.^ Noblesville, etc., Gravel Boad Co. v. Cause, 201. Noblesville, G. & I. Go. v. Loehr, 37,483. Noblesville, G. &L Co. v, Teter, 38. Noe V . Chicago, B. & Q. By. Co., 95. Nolan V. Brooklyn City B. Co., 62, 377. Noonan v. City of Albany, 302. Noonan v. Stillwater, 311. Norcross v. Norcross, 411, 417. Nordemeyer v. Loescher, 362. Norfolk, etc., B. Co. v. Giosedose, 515. Norfolk, etc., B. Co. v. Ormsby, 515. Norris v. Eohler, 283, 534. Norris v. Saxton, 65. Norris v. Savannah, F. & W. By. Co., 336. Nosier v. Chicago, etc,. By. Co., 500. North v. Smith, 206, 526. North Vernon v. Voegler, 302. Norton V. Cooper, 429. Norton v. LonisvUle & N. B. Co., 491. Norton V. Nye, 455. Norton v. Sewall, 13, 286. North Birmingham St. B. Co. v. Caldei- woo'd, 461, 470. North Chicago City By . Co. «. Gastka, 206. North Chicago B. M. Co. v. Johnson, 464. North Chicago St. By. Go. v. Williams, 464. North Eastern B. Go. v. Barnett, 373. North Eastern B. Co. v. Sineath, 112, 121. North Eastern B. Co. v. Wanless, 272, 279. Northern, etc.,B. Co. v. Price, 462. North Hndson County By. Co. v. Flana- gan, 521. North Missouri B. Go. v. StephenB,437. Northern Pac. B. Co. v. Ellison, 640. Northern Pacific B. Co. v. Herbert, 244. Northern Pac. B. Co. v. Holmes, 499. Northern Pac. B. Co. v. Lewis, 60, 89,472. ' Northern Penn. B.B. Co. v. Eirk, 671. Northern Transp. G. v. Chicago, 302, North Whitehall v. Keller, 437. Norwalk Gaslight Co. v. Borough of Nor- walk, 215, 216, 292. Norway Plains Go. v. Bradley ,-97. Norwich V. Breed, 82, 83. Norwood V. Bing, 430. Norwood V. SomerviUe, 314. Nowell o. New York, 531. Nowellii. Wright, 449. Noyes v. Town of Boscawen, 510. Nugent V. Boston, etc., Corp., 372, 489. Nugent V. Smith, 333, 334. Nunn V. The Georgia B. Co., 380. Nutting V. Connecticut Biver B. Co., 360. Nye V. Macdonald, 448. o. Oakes V. Northern Pass. B. Co., 364. Oakes v. Spaulding, 125, 284. Oakland v. Fielding, 599. Oakland City A. & I. Soc. v. Bingham, 206. Gates V. Union Pac. B. Co., 556. O'Brien v. City of St. Paul, 802^ O'Brien v. Greenbaum, 106. O'Brien v. McGllnchey, 461. TABLE Of CITATIONS. 643 References are to Pages. O'Brien v. Tatnm, 280, 470. O'Brien v. Yam, 413. O'Oallagban v. Bode, 72. Occult V. Eitterv Bridge Co., 143. Oclisenbeln v Shapley, 201, 205, O'Ooimell «. East Tenn., V. & G. B. Go., 96. O'Connell v. Lewlston, 481. O'Oonnello. St. Lonls C. & W. Ey. Co., 373. O'Connor v . New York & T. S. I. Co., 592. O'Connor v. Andrews, 106. O'Connors;. CnrtiB, 101, 106. O'Connor v. Fond dn Lac B. Co., 95. O'Connor v. Illinbis Cent. K. Co., 78. O'Connor v. MieBonrl Pac. By. Co,, 501. O'Connor v. Nnrth Trlnkee Ditch Co.. 461. O'Connor v. FlttBbnrg, 6. Oderkirk v. Fargo, 59. O'Donnell v. Allegbeny, etc., B. Co., 381. Ogbnrn v. Connor, 93, 94. O'Gorman «. Honls, 305. Ohio, etc., B. Co. v. Dnnbar, 339, 361, 372. Ohio, etc., B. Co. v. Etnrlch, 360. Ohio, etc., B. Co. v. Heady, 112. Ohio, etc., B. Co. V. Moray, 223. Ohio, etc., B. Co. v. Neady, 116. Ohio, etc., B. Co. v. People, 115. Ohio, etc.,B. Co. v. Bowland, 115. Ohio, etc., E. Co. v. Schiebe, 378. Ohio, etc., E. Co. v. Selby, 384. Ohio, etc., B. Co. v. Stratton, 517. Ohio, etc., B. Co. v. TbiHman, 96. Ohio, etc.. B. Co. V. Tindall, 542. Ohio, etc., B. Co. «. Tohe, 336. O'Barr v. Alexander, 427. O'Halloran v. Uarshall, 432. O'Harao. Brophy, 429. O'Hara v. ■Well3L423. O'Hanlan v. G. W. By. Co., 356. Ofarby V. Byde Commrs., 295. Oil City Fnel Supply Co. v. Bonndy, 461. O'Keefe ». Cbioago, etc.,B. Co., 462. Oldfleld V. New York & Harlem B. Co., 543. Oleson V. Brown, 590. Oleson V. City of FlattBmoatb, 3. Oliver v. LaVaUe, 597. Olivers. N. E. Ey. Co., 299. Oliver V. North Pac. Tr. Co., 695. Oliver V. Town of La Valle, 42. Oliver v. Worcester, 73. Olsen V. Oregon, etc., B. Co., 501. Olson V. Chicago, etc.. By. Co., 55. Olson V. CroesDian, 411, 413, 415,416. Omaba & E. V. E. Co. v. Severin, 114. Omaha & E. V, By. Co. v. Morgan, 520. O'Malley ». St. Panl, M. & M. Ey. Co., 78. O'Mara v. Hudson, 503. O'Mellia V. Kansas City, etc., E. Co., 654. Omslaner v. Philadelphia Co., 27. Onderdonk o. New York & S. B. Ey. Co., 380. O'Nell V. City of New Orleans, 136. O'Neil V. Detroit, 307. O'NelU V. Harklns, 6. O'Neill V. New York, O. & W. Ey. Co., 87. O'Neill V. Tp. of Deerfleld, 146. O'Neil V. YiUage of West Branch, 306, 322. Oppenbeim v. White Lion Hotel Co., 413. Opsahl V. Jndd, 40, 486. Orange City v. Brown,' SM. Orchard Place Land Co. v. Brady, 93. Orcntt V. Northern Pac. B. Co., 385. Oregon By. & Nav. Co. v. Dacres, 113, 372. Orme v. Boberts, 131, 132. Ormsbee v. Boston, etc., B. Co., 60, 501. O'Bonrke v. Peck, 73. Orr V. Garabold, 489. Ortt V. Minneapolis & St L. By. Co., 344. 360. Osborn v. Jackson, 233. Osborn v. Uniop Ferry Co., 219. Osborne v. Detroit, 314, 319, 321, 322. Osborne v. Gillett, 546, 548, 549, 653. Osborne v. Hamilton, 306. Osborne v. Morgan, 263. Osincnp V. Nichols, 132. Osten V. Jerome, 94. Osteray v. Pac. B. Co., 62. O'Snllivan v. Norwood, 103. Otis V. JanesvlUe, 506, 507. Otis V. Thorn, 608. Ott V. BaSalo, 314. Olten V. Coben, 37. ' OttnAwa V . Parks, 140. Onmit V. Henshaw, 364, 367. Overby v. C. & O. Ey. Co., 466. Overend, Gnrney & Co. v. Gibb, 327. Overend, Gnrney & Co. v. iSnrney, 325, ' 327. Over'holt v. Vieths, 115. Overton v. Freeman, 222, 224. • Owen V. Brockschmldt, 545. Owen V. Barnett, 336, 354. Owen V. Campbell, 255. Owfen V. 6. W, Ey. Co., 389. Owen V. Peebles, 265. Owen V. LonisvlUe & N. E. Co., 353. Owens V. Kansas City, etc.. By. Co., 43, 44. Owens V. Missonrl Pac. Ey. Co., 603. Owens V. Elchmond, etc., B. Co., 473. Owlngs V. Jones, 102, Oxford V. Prior, 410. Oxley i). St. Louis, etc., E. Co., 352. P. Pabst V. Baltimore, etc., B. Co., 381. Pacific Fxpress Co. v. Darnell, 349,602. Pacific Exp. Co. V. Lasker B. E. Assoc, 603. Pacific Exp. Co. V. Smith, 603. Packet Co. v. McCne, 641. Packard v. Taylor, 337, 360. Paddock v. Colby, 434. Paddon V. Eicbardson, 263. Padncah, etc., B. Co. v.- Hoehl, 471,503. Page V. Bucksport, 486. Page V. Def ries, 210. Paine v. Chandler, 97. Fainter v. Pittsburgh, 224. Palmer v. Atchison, etc., B. Co., 337. Palmer ti. Chicago B. &Q. B. Co., 360. Palmer v. Conant, 698. Palmer v. Missouri Pac. B. Co. 89. Palmer V. PennsylTanIa Co., 395. Palmers. Utah & N. W. Ey. Co., 371. Palmer v. Waddell, 93. I'almeter v. Wagner, 401. Pannell v. Nashville, etc., B. Co., 462. Panther v. Trauman, 116. Panton v. Holland, 6. Papwortb v. City of Milwaukee, 309. 644 TABLE OF CITATIONS. References are to Pages. Park V. Board Com'rs., 145. Park V. O'Brien, *73. Parke v. City of Seattle, 302. Parker v. Adanis, 64, 65. Parker v. Barnard, 62, 72, 73. Parker v. Oohoes, 37. Parker v. Flagg, 337. Parker v. Gt. Western, 331. Parker v. Lake Shore & M. S. By. Oo., 112, 114, 116. Parker v. Latner, 481. Parker v. Macon, 305. Parker v. Portland PnbliBhing Go., 75, 279. Parker v. Bools, 438. Parker v. S. E. By. Co., 367. Parker v. Springfield, 316. Parker v. Waycross & F. E. Co., 222. ParkhlU v. Town of Brighton, 316. Parkhnret v. Foster, 411. Parkhnrst v. Johnson, 211. Farmelee v. Farrd, 464. Parmelee v. Fisher, 364, 405. Farmelee v. Baymond, 690. Farnaby v. Lancaster Canal Go., 300. Parody v. Chicago, etc., B, Co., 496. Parrott v. Honsatonic B. Go., 603. Farrott v. Wells, 288. Parry v. Smith, 11, 291. Parsons v. Hardy, 337. Parsons v. Lindsay, 589. Parsons v. Manchester, 319. Parsons v. St. Matthew Bethnal Green, 134. Faksons on Ship. & adm., 491. Partlaw v. Hagarty, 125, 282. Partridge v. GUbert, 7. Partridge v. Scott, 9. ■Passmore v. W. XT. Tel. Co., 694. Fastene v. Adams, 38, 72. Patchell V. Irish N. W. By. Co.. 389. Fateev. Adams, 131. Patent Safety Gun Cotton v. Wilson, S, 441. Faton V. Farmer, 255. Fatten V. Chicago, etc.,B. Co., 396. Patteji V. Bea, 200. Patten v. Wlzgln, 422, 423, 424. Patterson v, Molver, 69. Patterson v. Pittsburgh, etc., B. Co., 494. Patterson v. Ballroad Co., 495. Patterson V. Wallace, 642. Pattlson V. Syracuse Bank, 69, 440. Paczach v. Yon Gerlchten, 461. Pauley v. Steam Gange & Lantern Co.,84. Paalmler v. Erie B. Co., 206, 642, 544. Pawlet 0, Butland, etc., B. Co., 214, 216. Faxon v. Sweat, 310. Payne v. Chicago & A. B. Co., 507, 520. Payne v. Halstead, 627. Payne v. Hnmeston & S. B. Co., 515. Payne v. Irvin, 107. Payne v. Sogers, 102, 105. Peachy v. Bowland, 214,221. Pearson v. 06x,26, 222. Pearson v. City of Dalath, 303. Pearson v. Milwaukee, etc., B. Co., 112. Pearson v. Skelton, 603, 604. Feckv. Hutchinson, 423. Peck V. New York, 224. Feckv. New York, etc., B. Co., 512. Peck V. Weeks, 346. Fedley v. Davis, 466. Peer v. Byan, 531. Peek V. North Staffordshire By. Go., 343. Feet V. The Chicago, etc. By. Co., 117, 368. Pell V. Belnhart, 107. Felton V. Bensselaer, etc.,^. Co., 841. Fendergast v. Town of Clinton, 137. Pendereo^ v. Seattle C. St. By. Co., 485. PenhaUow v. Mersey Docks. 300. Penlston v. Chicago, etc., B. Co., 395. Penning v. First DIt. St. Paul, etc, B. Co., 840. Pennington V. W. U. Tel. Co., 595. Pennington v. Yell, 427, 434. PennsylTanla B. Co. v. Adams, 641, 653. Pennsylvania B. Co. «. Aspell, 379. Pennsylvania, etc., B. Co. v. Bantom, 545. Pennsylvania B. Co. v. Beale, 60, 61, 499. Pennsylvania B. Co. v. Butler, 344. Pennsylvania B. Go. v. Central B. Co., 144. Pennsylvania Co. v. Elliott, 371. Pennsylvania Co. v. Gallentlne, 472. Pennsylvania B. Go. v. Henderson, 384, 385,386. Pennsylvania By. Co. v. Hinds, 207. Pennsylvania, etc., B. Co. t>. Hope, 46. Pennsylvania Co. v. Horton,65. Pennsylvania By. Co. v'. James, 613, 613. Pennsylvania v. Eeane, 554. Pennsylvania B. Oo. ». Keller, 539, 641, 644. Pennsylvania B. Oo. v. Ellgore, 379. Pennsylvania B. Co. v. Kerr, 46. Pennsylvania, etc, B. Oo. v. Laoey, 46. Pennsylvania B. Co. v. Langdon, 381, 382. Pennsylvania Oo. v. liangendorfl, 487. Pennsylvania B. Co. v. Lewis, 620. Pennsylvania v. LlUy, 663. Pennsylvania Go. v. Lindley, 116. Pennsylvania B. Go. v. Mahnney, 616. Pennsylvania Oo. v. Marion, 394. Pennsylvania B. Oo. v. Matthews, 505. Pennsylvania Co. v. Newmeyer, 383. Pennsylvania B. Oo. v. Fetors, 499. Pennsylvania B. Oo. v. Price, 260, 886. Pennsylvania B. Co. v. Balordon, 344. Pennsylvania By. v. Bighter, 390, 465. Pennsylvania Co. «. Boney, 488. Pennsylvania Co. v. Boy, 374,409,410. Pennsylvania Central B. Co. v. Schwarz- enberger, 366. Pennsylvania Co. v. Toomey, 204, 206. Pennsylvania B. Co. v. Tandlver, 204. Pennsylvania, etc., B. Co. v. Warner, 485. Pennsylvania B. Go. V. Welller, 345. Pennsylvania, etc., B. On. v.Werner,486. Pennsylvania. Co. v. Whitlock, 47. Pennsylvania B. Oo. v. Zebe, 66. Pennsylvania B. Co. v. ZInk, 489. People V Colby, 462. People V. Cole, 431. People V. Cunningham, 138, People V. Harris, 430. People V, Johnson, 458. People t). Lee, 463. People V. Monroe, 422. People V. Bobinson, 449. People V. Stocking, 460. People V. Troy Steel & L Oo , 647. People's Bank v. Franklin Bank, 442. Feorla Bridge Asa. v. Loomis, 696, 696. Peoria, etc., Oan^ Oo. v. Graham, 695. Peoria, etc., B. Oo. v. Olayberg, 498. Feorla, etc, B. Oo. v. Dnggan, 123. TABLE OP CITATIONS. 645 References are to Pages. Peoria, etc, B. Go. v. Slltman, 604. Peoria, etc., B. Go. v. Thompson, 374. Peoria, J>. & E. By. Go. v. Aten, 118. Peoria, D. &-E. By. Co. v. Babbs, 117. Peoria & P. IT. By. Co. v. Barton, 96. Perclval v. Ungbes, 271. Percy v. Mllladou, 328, 331. Pereba v. Central Pac. B. Co., 361. Perez v. Baybaud, 107. Berbam v. Coney, 211. PerlonowBki v. Freeman, 421. Perkins v. Easton, eic, B. Co.', HI. Perkins v. Inhabitants of Fayette, 33. Perkins ». Lafayette, 142. Perkins v. Mosaman, 126. Perkins v. N. T. G. K. Co., 24. Perkins v. Ballroad Co., 114, 360, 386. Perkins V. The Portland, etc.,B. Co., 353. Perkins v. yanghan, 587. Parley v. East. E. Co., 85. Perrln v. Wells, 690. Perry v. Dabnqne, etc., B. Co., 117. Perry v. Honse of Befage, 208. Perry v. Sonthern Pac. B. Co., 89. Perry v. The Central B. Co., 63. Perbt on TBnSTS, 254, 257, 262, 263. Person v. Leathers, 434. Peters v. Lawson, 437. Peters v, Stewart, 113. Peterson v. Chicago & W. M. By. Co., 55, la. Petrle v. Colnmbia & G. B. Co., 24, 644, 545. Pettenger v. Town of Hamilton, 295. Pettlbone v. Smith, 97. PettinglU V. Bldeoat, 548. Peyton v. London, 69. Peyton v. Texas & P. By. Co., 487. Pennsylvania, etc.. Canal Co. v. Bentley, 499. Pennsylvania, etc.. Canal Go. v. Graham, 596. Pennsylvania Tel. Go. v. Vaman,474,542. Penso V. McCormlck, 279. Pflster V. Central Pac. B. Co., 364. Pflster V. Wade, 435. Phelps V. L. & N. W. By. Co., 362. Phelps V. Walt, 292. Phlfer V. Carolina Central By. Co., 348. Philadelphia, etc.. B. Co. v. Anderson, 29, 300, 372, 375, 392, 623. Philadelphia, etc., B. Co. v. Boyer, 24, 374, 474, S07. Philadelphia & B. B. Go. v. City of New York, 73. Philadelphia, etc., B. Go. v. Derby, 205. Philadelphia, etc., B. Go. v. Harper, 366. Philadelphia, etc.. B. Co. v. Hendrick- son, 86, 89, 90. Philadelphia, etc, B. Co. D. Hoge- land, 6U9, 510. Philadelphia, etc., B. Go. v. Long, 616, 518, 520. Philadelphia, etc., B. Co. v. Philadel- phia, etc.. Steamboat Co., 480. Pfiiladelphla, etc., B. Co. ■». Philadel- phia, Tow Boat Co., 40. Fbilaldephla, etc., B. Co. v. Scbnltz, 89. Philadelphia, etc., B. Co. v. Spearen, 503, 520. Fhiladelpbia, etc., B. Go. v. Stinger, 2. Philadelphia, B. & B. Co. v. Layer, 613. Phillips V. Bridge, 431. Phillips V. Brigham, 338. Phillips V. Condon, 69. Phillips V. De Wald, 88. Phillips V. East Tenn., T. & G. By. Go., 474. Phillips V. Library Co., 72, 78, 279. PhUlipps V. L. & S. W. By. Co., 645, 591, 596. PhUlips V. Mo. Pac. By. Co., 123. Phillips V. North Carolina B. Go. 361. PhlUlps V. Northern B. of N. J. 372. PhUlips o. PnUen,437. Phillips V. Ballroad Co., 360, 461. PhUo V. lU. Gent. B. Co., 246. Phoenix Clay-Pot Works v. Pittsburgh & L. E. B. Co., 339. Flanciani v. London & 3. W. By. Co., 335. Pickard v. Anderson, 263. Fickard v. Smith, 79, 102, 223, 446, 533. Pickens v, Diecker, 214. Pickering v. James, 445, 447. Pickett i>. Bates, 433. Pickett V. Merchant's Nat. Bank of Memphis, 437. Picktord v. Grand Junction By. Co., 342. Plddlngton v. S. E. By. Co., 334. Piedmont Mfg. Co. v. Colnmbia, etc., B. Co., 360. Pierce v. City of Bedford, 306. Pierce v. Connors, 520, 537, 991. Pierce v. Whltcomb, 280. Plggot V. Eastern Counties B. Go., 89. Plgott V. Lilly, 36. Pike V. Grank Trunk By. Co., 50. FlUsbnry v. Moore, 105. Plndell V. St. Louis & H. By. Co., 340. Pine BlnS W. & L. Go. v. Derrisseanz, 140. Pinkerton v. Woodward, 411, 417. Pinkstoni?. Arrlngton, 430. Pinney v. Hall, 280. Fiolett <;. Simmers, 40, 142, 480. Pitcher V. Lake Shore & M. S. By. Co., 384. Plthln 17. Harris, 438. Pitt V. Xolden, 433. Pittsburgh, etc,, B. Go. v. Andrews, 63, 378. Pittsburgh, etc., B. Co. v. Bennett, 501. Pittsburg, etc., E. Co. v. Bosworth, 110. Pittsburgh, etc., B. Co. v. Bingham, 75, 396. Pittsburgh, etc., B. Go. v. Gunnington, 113. Pittsburg, etc., B. Go. v. Donahue, 206, 696. Pittsburgh, etc, B. Go. v, Hazen, 356, 357. Pittsburgh, etc.,B. Go. v. HoUowell, 356, 357. Pittsburgh, etc, B. Co. v. McClurg, 63, 378. Pittsburgh, etc., Co. v. Jones, 89, 148. Pittsburgh, etc.,B. Go. v. Methven, 111. Pittsburgh, etc., B. Co. «. Noel, 90. Pittsburgh, etc, B. Co. v, Pearson, 613, 620. Pittsburgh, etc., B. Co. v Powers, 598. Pittsburgh, etc.,B. Go. v. Bohrman, 487. Pittsburgh, etc., B.Co. v. Shields, 206. Pittsburgh, etc.. By. Co. v. Staley, 86. Pittsburgh, etc., B. B. Co. v. Thompson, 571. Pittsburgh, etc, B. Co. v. Vlnlngs Admr., 518. 646 TABLE OF CITATIONS. References are to Pages. FittBbnieh, etc., B. Oo. <;. Williams, 523, 627. FittsbnTKh, etc., E. Oo. o. Wright, 199. Place «.iCay)OT, 449, 461. , Plalsted V. Boston Steam Nav. Co., 337. Plant V. Fearman, 438. Plaquemines Tropical I'rnit Oo. v. Buck, 324. ^ Piatt II. Chicago, etc., Ey. Co., 480. Platte & Denyer C. & H. Co. v. Bowell, 65, 470. Flattsmonth v. Mitchell, 308. Platz V. Oity of Cohoes, 40, 480, 607. Player v. Burlington, etc.. By. Co., 383. Playlord v. V. K. Tel. Co., 446. Plnmmer v. Dill, 77. Pluibmer v. Bastern B. Co., 601. Plnmmer v. Webb, 548. Plnckwell v. Wilson, 65. Pocock V. Beddingion, 263. Poeppers v. Mlssonri, etc., By. Co., 45. Poland V. Miller, 61. Polhaus V. Atchison, etc., B. Co., 87. FoUett V. Long, 46. Pollock V. Hastern B. Co., 604. Pomeroy v. Inhabitants of Westfield, 65. Fomfrey v. Saratoga Springs, 306, 315, 321. Fool V. Jackson, 318. Fool V. Sonthern Pac. B. Co., 651. f oole V. Gist, 432, 433. Poor V. Sears, 107, 906. Pope V. Kansas City Cable By. Co., 463. Fopp V. New York, etc., B. Co., 488. Popplewell V. Pierce, 125, 127. Porter v. Anbenser-Basch Brewing Assoc, 518, Fortcr v. Dnrham, 93. Porter v. Halght, 450. Porter i>. Hannibal, etc., B. Co., 596. Porter v. Bildebrand, 364. Porter «. New York, etc., E. Co., 384. Porter v. Peckham, 434. . Porter v. Bailroad Co., 204, 207. Porter Co. Com. v. Dombke, 318. Fortman v. City of Decorah, 460. Post V. Boston, 305. Postal Telegraph Co. v. Zopfl, 491. Potter V. C. B. I. & P. Co., 246. Potter V. Met. By. Co., 646, 602. Potter V. Moran, 488. Potters;. New York, 0. & H. B. E. Co., 105. Potter t;. Parsons, 437. Potter V. The Malestlc, 365. Potter V. Warner, 421, 426,466, 492. Fottner v. Minneapolis. 818. Potts V. Dntton, 438. Ponchera. New York Cent. B. E. Co., 386. Powell V. Fall, 84. Powell V. Mills, 339. Powell V. Myers, 363. Powell V. Powell, 647. Powell V. Salisbury, 109. Power V. First Nat. Bank, 443. Power V. Kent, 438. Powers V. Boston Gas Light Co., 291. Powers V. Chicago, etc^ By. Co., 513. Powers V. Council Bluff. 803. Powers V. Davenport, 33S. Powers V. Harlow, 77, 278, 519. Powers V. Kindt, 133. Powers V. Thayer Lumber Co., 32. Fray v. Mayor, etc., 137. Fray v. Omaha St. Ey. Co., 377. Prentiss v. Boston, 292. Prentiss v. Wood, 105. Prescott & A. O. By. Go. «. Bess, 463. Prescott V. Enowles, 132. Fressy V. Wirth, 131. Preston v. Hill, 437. Preston v. Prather, 59, 60. Prestwlck v. Foley, 429, 436. Pretty v. Bickmore, 102. Prewitt V. Eddy, 479, 482. Prldeaux v. Alineral Point, 65, 472, 474, 607. Price V. Bailroad Co., 550. Price V. Bichmond & D. E. Co., 642. Prince v. International & G. N. £. Co., 386. Frlncetown v. Gieske, 305. Frlntnp v. Patton, 604. Prior V. Kiso, 435. Fritchard v. Keefer, 206. Proctor V. Hannibal, etc., B. Co., 248. Froctort). Harris, 102. Proeger v. Bristol & Ex. Ey. Co., 399. Propsom V. Leathern, 697. Prosser v. Coots, 465. Pryor v. LoulsTllle & N. E. Co., 35. Packwell v. Wilson, 63, 271. Fnllman Palace Car Oo. v. Barker, 42, 409. Fnllman Palace Car Oo. v. Bluhon, 39, 493. Pullman Palace Car Co. v. Freudensteln, 402. Fallman Palace Oar Co. v. Gardner, 406. Pullman Palace Car Co. v. Gavin, 404. Fnllman Palace Car Co. v. Gaylord, 401, 407. Pulling V. Gt. Eastern Ey. Co., 547. Pullman Palace Car Co. v. Lowe, 403. Fallman Palace Car Co. v. Martin, 404. Pullman Palace Car Co. v. Matthews, 405. Fallman Palace Car Co. v. Pollock, 404. Fallman Palace Car Oo. v. Smith, 401, 402, 405. Fallman Palace Car Co. v. Taylor, 408. Pulpit V. Matthews, 109. Fundmun v. bt. Charles County, 145. Puree! 1 v. Bnglish, 106. Purcell V. St. Paul City By. Co., 39, 44. Purdy V. Lynch, 262. Purdy V. New York, etc., E. Co., 606. Purl V. St. Louis, etc.. By. Co., 602. Purtell V. Jordan, 489. Purvis t>. Coleman, 414. Puryear v. Thompson, 206, 209. 212. Putnam v. N. Y. 0. & H. E. E. Co., 32. Patnam v. Van Buren, 435. Pqtnamv. Wegg, 128. Fye V. Oity of Mankato, 95. Pyo V. Faxon, 215. Pym V. Gt. Korthem Ey. Co., 544, 646, 671. Pyne v. C. B. & Q. E. Co.. 247. Q. Quackenbnsh v. Wisconsin & M. E. Co.«- 119, 123. Quarman v. Burnett, 210, 218, 223. Quebec Cent. Ey. Oo. v. Lortle, 485. Quested v, Newbnryport, etc, Horse E. Co., 373. TABLE OF CITATIONS. 647 References are to Pages. QaiU V. N. T. C. & H. E. K. Co.. 35, 39. Qalmby v. Boston & M.. R. Co., 385. Qalmby v. Woodbury, 129. Qnin V. Moore, 286, 545, 553. Qolncy v. Jones, 6, 7, 9. Qaincy, H. By. & C. Co. v. Grase, 464. Qninlan v. City ot Utica, 321. Qulnn V. Illinois Cent. B. Co., 376. Qoinn v. Lloyd, 435. Qulnn V. Pernam, 107. Quinn v. Power, 201, 554. gnlnn v. Sontb Carolina By. Co., 378,589. .K. Babe v. Sommerbecl:, 472. Baben v. Central la. By. Co., 380. Badley v. London & North Western By. Co., 469,462. Bagan v. Aiken, 339. Bagan v. Buffet, 339. Bagby V. Hewitt, 26. Bailroad Co. v. Aapell, 54. BaUioad Co. v. Boyer, 509. Bailroad Co. v. Code, 247. Bailroad Co. v. Gnnnlngton, 295. Bailroad Co. v. Curran, 386. Bailroad Co. v. Edwards, 247. Bailroad Co. v. Fort, 210. Bailroad Co. v. Hawk, 52. Bailroad Co. v. Hawkins, 353. Bailroad Co. v. Hedger, 353. Bailroad Co. v. Herbeck, oia. Bailroad Co. v. Houston, 50, 498. Bailroad Co. v. Howard, U9. Bailroad Co. v. Ingram, 247. Bailroad Co. v. Jones, 2, 247, 382, 383. Bailroad Co. v. Kelly, 27. Railroad Co. v. Kerrison, 299. Bailroad Co. v. Lea, 247. Bailroad Co. v. Lookwood, 24, 345, 385, 386 Bailroad Co. v. Manufacturing Co., 346. Bailroad Co. v. Mitchell, 587. Bailroad V. Xorton, 466. Railroad Co. v. Beeves, 47, 338. Bailroad Co. v. Rutherford, 378. Railroad Co. v. St. John Long, 423. Railroad Co. v. Skinner. 111. Bailroad Co. v. Stout, 50, 78, 288, 519. Railroad Co. e. Walrath, 409, 410. Bains V. St. Louis, Iron Mountain, etc., B. Co., 545, 653. Balsin v. Mitchell, 599. Bajnowaki v. Detroit, etc., B. Co., 647. Raleigh B. Co. v. Wicker, 95. Bamely v. Leland, 416. Bamsdell v. New York & N. E. K. Co., 539 Bamsden v. Boston, etc., B. Co., 206. Bamsey v. Holmes, etc., Co., 592. Bamsey v. RushTille, 316. Ranee's Case, 330. Randal v. Newson, 61, 393. Bandallv. Cbckran,588. Randall*. N. W. T. Co., 472. Bandall V. Baper, 602. ' Rudolph V. O'Blorden, 65. BanUno. Ingwersen, 105. Rankin v. Schaffer, 430. Ransom v. Chicago, etc. By. Co., 504. Banson v. New York & Erie B. Co., 596. Bantoul v. New York Central, etc., R. Co., 348. Bapho 1). Moore, 142. Rapson V. Cubitt, 222, 602. Batcllff V. Balrd, 434. Batte V. Dawson, 76. Bay V. Burbank & Jones, 268. Bay V. Manchester, 806. Baydnre v. E.nlght, 46. Baymond v. Bifles, 449. Baymond V. Burlington, etc.,B.. Hammond,651. Bicbmond, etc., B. Co. v. Howard, 5. BIchmond, etc., B. Co. v. Johnson, 541. Bicbmond, etc., B. Co. v. Medley, 89. BIchmond, ecc, B. Co. v. Mofiett,35. BIchmond, etc., B: Co. v. Morris, 379. BIchmond, etc., B. Co. v. Flckleslmer. 376,383,466. BIchmond, etc., B. Co. v. Scott, 63. 378. Bicbmond, etc., E. Co. v. White, 47,838. Bicbmond, etc., B. Co. v. Yeamans, 462. Blcbter v. Pa. Co., 260. Bicker v. Freeman, 38. Blckets V. East India Docks By. Co., 110. Blcketts V. Chesapeake & O. By. Co., 372, Blddle V. HoSman, 433. Biddle v. Poorraao, 427. Blddle ti. Fropiletois of Locks & Canals, - 135. Bldenhonr v. Kansas City Cable Ky. Co., 613, 696. Blepe V. Eltlng, 66. Bieponv. Bittel, 695. Eigby V. Hewitt, 607, 691. Blt;ony v. County of SchaylkUl, 116. Elley V. Llssner, 79. Blley V. Salt Lake E. T. Co., 615. BUey V. Simpson, 102. Blley V. Warden, 229. Bing V. Coboes, 34. Bingelsteln v. San Antonio, 316. Bio Grande. By. Co. v. Cross, 372. Blsley V. Fellows, 436. Bitche V. Waller, 212. Bitz». Clty»of Austin, S40. Elxtord V. Smith, 338, 339. Boacb V. Western & A. B. Co., 609. Eoberts v. Drehmer, 592. Boberts v. Johnson, 628, Boberts v. Kelson, 437. Boberts v. Qnincy, etc.,B. Co., 113. Boberts v. Bicbmond, etc., B. Co., 122. Boberts v. Stnyyesant Safe Deposit (Jo., 60. Bobbins v. Chicago, 218, 219, 276, 292. Bobbins v. Fltcbbnrg B. Co., 606. Bobbins V. Jones, 102, 457. Bobertson v. Amazon Tng Co., 62. Bobertson v. N. T., etc., E. Co., 382. Bobertson v. Wooley, 288. Boblnson v. Brennan, 454. Boblnson v. Chamberlain, 449. Boblnson v. Cone, 615, 616. Bobinson v. G. W. By. Co., 347. Boblnson v. Gell, 448, Boblnson v. Hall, 328. Boblnson v. Merchants Despatch Co., 346. Boblnson v. Merino, 127. Boblnson v. New York, etc, B. Co., 374, , 508,527. Boblnson v. Oregon, etc.. By. Co., 78. Boblnson v. Boblnson, 264. Boblnson v. Simpson, 524. 601. Bobinson v. Smith, 324, 325, 326. Boblnson v. St. Lonls, etc., By. Co., 121. , Boblnson v. Webb, 217. Boblnson v. Western Pac. B. Co.. 47S. Eobson V. N. B. By. COr, 388,396, 397,399., Bocheford ». Attleboro9gh,319. Bockford, etc., B. Co, v. Byam, 50. Eockford, etc., B. Co. v. Delaney, 619, 552. Bockford, etc., B. Co. v. Bogers, 89. Eock Island, etc., B. Co. v, Fairclongh, 366. BockweU V. Frootoi, 412. Boderick v. Bailroad Co., 362. Eoe V. City of Kansas, 306. Eoe V. Crlmmlns, 141. Boeder v. Qrmsby, 645. Boemer v. Striker, 215. Bodgers v. B. B. Co., 48, 337. Bogers v. Chicago, etc., B. Co., 113. Bogers V. McDowell, 455. Bogers v. Overton. 472. Bogers v. Ebymney By. Co., 391. Bogers v. Shirley, 320. Bogera v. Slnsbeimer, 7. Bogers v. Taylor, 9, 68. Bofrahn v. Moore Utg. & F. Co., 204. BohrboDgh v. Barber Co., 136. Boland v. Mnrpby, 6. Bome V. Dodd, 463. Bompillon v, Abbott, 38. Rooney v. Sewall & D. G. Co., 494. Boope V. D'Anigdor, 649. Bool 11. New York C. S. C. Co., 406, 407. • EOBBB ON EA.ILWAT8, 346, 361, 366. Bose V. K. E. Ey. Co., 388, 396, 399. Eose V. D. V. B. Co., 246. Bose V. Stephens, etc., Transp. Co., 632. TABLE Oi' CITATIONS. 649 Beferences are to Pages. Bosenberg v. Dnrtree, 513. Bosenkranz v. Llndell By. Co., 618. Bosenthal v. Davenport, 152. Boss V. Campbell, 455. Boss V . City of Clinton, 303. Boss V. Davenport, 314, 479. Boss V. Feddon, 101. Boss V. Kansas City, 697. BoSB«. Mellin, 417. Boss V. Minn. B. Co., 365. Bost V. Mlesoari P. By. Co., 87. BoBwell V. Prior, 101. Both V. Bailroad Co., 340, 367. Botbenberger v. Northwestern C. M. Co., 494. Bonlston v. Olark, 77. Bounds V.Delaware, etc., B. Co., 203,206. Boarke v. White M. C. Co., 211. Bowbotbam v. WUson, 9. Bowe V. Lent, 423. Bo we V. St. Panl, M. & M.B. Co., 93. Bowell V. Bailroad Companv, 90. Bowell ». Stamford St. B. Co., 479. Eowell V. Williams, 596. Eowen v. New York, etc., B. Co., 463. Bowley v. I>. & N. W. By. Co., B45, 646. Bozelle v. City of Anderson, 301, 304. Bozelle v. Hannibal, etc., B. Co., 116, 118. Babenstein v. Crniksbanks, 416, 416. Back V. Williams, 299, 305, 308. Bncker t>. Missonri, etc., B. Co., 382. Backer v. Smoke, 698. Bnddock v. Lowe, 422. Bader v. Purdy, 699. Bodge V. Gnmmow, 265. Bomple V. Oregon, etc.. By. 506. Bamrill v. Town of Delafleld, 136. Bamsey v. N. E. By. Co., 362. BiTSSELI. ON CBOIES, 423. Bassell v. Colambla, 141. Bussell V. Fagan, 412. Bassell v. Gtflespie, 464. Bassell v. Hanley, 116. Bassell v. Eoehler, 60. Bassell v. Palmer, 438. Bassell v. Bailroad Co., 387. Bnssell v. Stewart, 438. Bassell v. Sanbury, 647. Bassell v. Tillotson, 485. Bassell v. Tomlinson, 133. Eutberford v. Village of Holly, 94. Byan v. Camberland Valley B. Co., 387. Byan v. Gilmer, 527, 529. Byan v. Gross, 86. Byan v. Lewis, 590. Byan v. LonisvUle, etc., By. Co., 472. Byan v. Miller, 32. Byan v. N. T., etc., B. Co., 46, 47. Byan v. Thompson, 73. Byan v. Wilson, 102, 106, 467. Bychlicke v. City of St. Loals, 303. Byckman v. Gillis, 6. Byder v. White, 282. s. Sabine & E. T. By. Co. v. Hanks, 462. Sadler v. Henlock, 214, 220. Safe Deposit Co. v. Pollock, 60. Sager v. The Fortsmoath, etc., B. Co., 346. Sablgaard v St. Paul City By. Co., 376. Sala V. Chicago, etc., By. Co., 502. Saldana ti. Galveston, etc. By. Co., 695. Salem Bedford Stone Oo..v. O'Brien, 483. Salisbury v. Hirchenrode, 48, 805. Salmon v. Delaware, etc., B. Co., 89. Salter v. Utioa, etc., B.Co., 600. Saltmarsh v. Barrett, 265. Sammins v. Welfaelm, 309. Samms v. Stewart, 336. Samuels v. Louisville & N. B. Co.. 339. San Antonio & A. P. By. Co. v. Bennett, 640, 646. San Antonio St. By. Co. v. Caillonette, 516. San Antonio & A. P. By. Co. v. Corley, 696. San Antonio & A. P. By. Co. v. Enoepfli, 117. San Antonio & A. P. By. Co. v. Long, 373 643 564 San 'Antonio' & A. P. By. Co. v. Mc- Donald, 487. San Antonio & A. P. By. Co. v. Oakes, 88. San Antonio & By. Co. v. Tanghn, 603, 618. San Antonio St. By. Co. v. Mecbler, 520. Sanders v. Darling, 449. Sanders v. Beister, 470. Sanders V. Stuart, 593. Sandersons;. Frazier,470,478, 627. Sandersons. Holland, 426. Sanderson v. Sanderson, 547. Sandford v. Eighth Avenue By. Co., 203. Sanfordv. Augusta, 699. Sangamon, etc., B. Co. v. Henry, 353, 358. Santer V. New York,- etc., B. Co., 546 Sapplngton«>. Missonri Pac. B. Co., 87. Sarcb v. Blackburn, 131. Sargent !>. St. Loais& S. By. Co., 396. Sargent v. Town Gilford, 137. SasseCn v. Clark, 412, 414. Satber v. Chicago, etc.. By. Co., 113. Satterfield v. Bowan, 98. Satterlee v. Groot, 200. Saulsbury v. Ithaca, 308, 319. Sannders v. Gan Plains, 30T. Sauter v. New York, etc., B. Co., 640. Savannah v. Cleary, 305. Savannah v. Spears, 304. Savannah v. Wilson, 138. Savannah, F., etc.. By. Co. v. Mcintosh, 366. Savannah, P. & W. By. Co. v. Pritchard, 361. Savannah, F. & W. B. Co. v. Watts, 379. Savannah & B. Co. v. Madors, 51. Savannah & W. B. Co. v. Phillips, 216. Savings Bank v. Copenton, 332. Savings Bank v. Ward, 12. 430. Sawyer v. Corse, 461. Sawyer v. Hannibal, etc., B. Co., 527. Sawyer v. McGilllcuddy, 107. Sawyer v. Martins, 214. Sawyer v. Newburyport, 306. Sawyer v. Northfleld, 135. Sawyer v. Oakman, &1. Sawyer v. Sauer, 46S. Scaling V. Pullman Palace Car Co., 402. Scaiboroagb v. Alabama M. By. Co., 222. Scbacberl v. St. Paul City By. Co., 376. Schaefert v. The Chicago, etc.. By. Co., 60. Sefaaeffer v. Tp. of Jackson, 37, 136. 650 TABLE OF CITATIONS. References are t» Pages. Schaefler v. Olty of Sandiisty, 316. Scballer v. GonnoiB, 125. Schaab v. Hannibal & St. J. R. Co., 542. Scheepers v. Uulon Depot B. Co., 629. SchoSer v. Corson, 413. Schefferv. BailroadCo., 36,45. Scherlz v. Indianapolis, etc, By. Co., 118. Scheimer v. Neuratb, 58. Schexnaydxe v. Texas & B. By. Co., 602. Schlerhold v. ITorth, etc., B. Co., 514. Schindler v. Milwankee, etc., By. Co., 465. Scbimpf V. Sitter, 65. Schlenks v. Central Pass. By. Co ., S14. Schleretb v. Mo. F. B. Co., 654. Schllchtlng v. Wlntgen, 550. Schlltz V. fabst Brewing Co., 496. Sclimeert;. Gas Light Co., 290. Schmid V. Humphrey, 40, 481. Schmidt V. Baner, 280. Schmidt v. Chicago, etc., B. Co., 55, 540. Schmidt V. Deegan, 540. Schmidt v: Kansas City Distilling Co., 78, 619. Schmidt v. Philadelphia & B. B. Co., 506. Scbmitz V. St. Lonis, etc.. By. Co., 620, 696. Sohnatz v. Philadelphia & B. B. Co., 541. Schneider v. Uo. F. B. Co , 93. Schnelr v. C, B. I. & P. B. Co., 528. Schnnr v. Citizens Traction Co., 613. Schoecralt v. Bailey, 411. Schoenfeld v. Milwankee City By. Co., 4T9. Schoettger v. Wilson, 460. Schofield V. Chicago, etc.. By. Co., 60, 498, 502. School District of Erie v. Fness, 217. Schraeder v. C . B. I. & F. B. Co., 246. Schriver v. Sioux City, etc., B. Co., 344. Schroeder v. Oiawtbrd, 41. Schroeder v. Faires, 126. Sctiroth V. City of Prescott, 60. Sohroyer o. Lynch, 460. Schmbbe v. Connell, 206, 208. Schubert v. Clark, 12. Scholte V. Kew Orleans, etc., B. Co., 503. Schnltzv. Beyers, 8. Schnltz V. Moon, 631. Schnltz V. Pacific B. Co., 248. Schnlze-Berge v. The Gnildhall, 345. Schuyler v. Fitchburg B. Co., 116, 117. Schwartz v. Daegllng, 8. St. Glair V. Missouri Pac. By. Co., 471. St. Claii St. By. Co. v. Eadie, 615. Scott V. Central B. Co., 537. Scott V. Groves, 128, 284. Scott V. Hale, 85. Scott V. Harrison, 429. Scott V. Hunter, 48. Scofleld V. Lake Shore, etc., B. Co., 339, Scott V. L. & St. E. Docks Co., 629. Scott V, Liverpool Dock Co., 71, 275. Scott V. London Dock Co., 212, 267, 522, 632. Scott V. Manchester, 300. Scott V. Montgomery, 696. Scott V. Xational Bank of Chester Val- ley, 440. Scott V. Oregon By. Co. & Nav. Co., 475. Scott V. Seller, 436. Scott V. Shepherd, 26, 286. Scott V. Waithman, 449. Scott V. ■Wilmington B. Co., 628. Scrantou v. Catterson, 307. Scanton v. Fhiilips, 9. Scribner v Eelley, 124, 126. Scruggs V. Davis, 211. Seaboard Mfg. Co. v. Woodson, 596. Seals V. Sdmoudson, 69. Seaman v. EDehler, 509. Seare v. Prentice, 420, 427. Searle v. Laverlck, 57, 365. Sears v. Seattle Con. St. By. Co., 373. Seaver v. Pierce, 465. Secord v. St. Paul, etc., B. Co., 602. Seefeld v. Chicago, etc.. By. Co., 489, 505. Seger v. Barkhamsted, 596. Selby V. Wilmington & W. E. Co., 347, 353, 335. Salinas v. Vermont State Agr. Soc, 73. Sellars v. Foster, 545. Sellers v. Bichmond & D. B. Co., 604. Seller v. Pacific, etc., B. Co., 344. Seilick V. Lake Shore & M. S. B. Co., 36, 87, 39, 60. Semple v. Mayor, etc., Vloksburg, 304. Senior v. Ward, 498, 537. Senn v. Southern B. Co., 647. Senter v. Tees, 93. Seutman v. Baltimore & O. B. Co., 96. Seventzel v. Penn. Bank Pa. 328. Severy v. Nickerson, 76. Sevier v. Vicksburg, etc., E. Co., 380. Sewall V. Webster, 40, 480. Sewell V. City of Cohoes, 146. Seybelt v. New York, etc., B. Co., 386. Seymerv. Lake, 472. Seymour v. Citizens By. Co., 377. Seymour v. Greenwood, 203, 205. Seymour v. Maddox, 79. Seymour v. ViUage of Salamanca, 295. Shafer v. Wilson, 6, 7, 8. Shaffer v. Biseley, 454. Shaffers v. The Gen. Steam Nav. Co., 232,233. Shaller v. Connors, 132. Shallow V. Verden, 647. Sbankenbery v. Metropolitan St. By. Co., 486. Shannon v. Boston, etc., B. Co., 394, 479. Shannon v. Tama City, 313. Sharman v. Sandars, 229. Sharp V. Grey, 273. S93. Sharp V. Mayor, 430, 431. Sharp V. Moffit, 430. Sharp V. Powell, 26, 28. Shattuck V. Bill, 433. Shaw V. Banman, 451. Shaw V. Berry, 411, 412. Shaw V. Craft, 125, 606. Shaw V. Sun Prairie, 322. Shea V. Potrero, etc., B. Co., 478. Shea V. B. B. Co.. 204. Sheaf V. Ctlca, etc., B, Co,, 120. Shearman v. Anderson, 112, 121, 507. Shbasman & Bedfisld on Nboli- OBNCS.* Shedd V. Moran, 555. Sheehan v. Bdgar, 695. Sheehan ti. Philadelphia & B. B. Co., 601. Sheel V. Appleton, 318. * The frequency with which the author cites this text-book makes it imprac- ticable, from want of space to enumer- ate the pages. TABLE OF CITATIONS. 651 References are to Pages. Sbeeler v. Obeaapeake & O, B. Co., 479. Sheff V. Olty of Hautington, 472. Sheffield v. Cential Union Tel. Co., 612. Sbelbyvllle, etc., B. Co. v. Iiewailc,690. Sheldon v. W. U. Tel. Co., 139. Shellabargei v. Chicago, etc., B. Co., 116. Sbepaid v. Bnflalo, etc., B. Co., 119. Shepbard v. Creamer, 531. Sbephard v. Monls, 264. Bhepperd v. Mid. By. Co., 389. Sheridan v. Brooklyn City B. Co., 508. Sheridan v. Charlick, 202. Sheriden v. Kropp, 107. Sherlock v. Ailing, 571. Sherman v. Fall Kiver Iroq Co., 491. Sherman v. Hannibal, etc., B. Co., 383. Sherman v. Western Stage Co., 540. Sherwood v. District of Colnmbia, 319. Sherwood v. Chicago & W. M. By. Co., 697. Shiber v. St. Paul, etc., E. Co., 551. Shieb V. Tp. of Collier, 146. Shields «. Edinburgh By. Co., 213. Shiells V. Blackburue, 433, 467. Sblndelbeck v. Moon, 106, 108. Shinotti V, Bnmpstead, 300, 446. Ship B. Crossklll, 326. Shipley j;. Bolivar, 318. Shipley V. Fifty Associates, 92, 106, 30^. Shipp V. Hettrick, 266. Shippey v. An. Sable. 307, 615. Sheen v. Dry Dock, 44. Shotwell V. Dodge, 97, 699. Shotwell V. St. Joseph & St. Lonis By. Co., 117. Shrleve v. Stokes, 8. Shroder ». Ward, 57. Shuey v. Latta, 264. Shnfelt V. Flint & P. M.B. Co., 505. Shngart v. Egan, 41. Shnltz V. Bower, 6, 10. Sbnltz V. City of Milwaukee, 306. Shnltz V. Wall, 411, 414, 416, 416. Shntze v. Chicago, etc., B. Co., 486. Slas V. Village of Beed City. 698. Sibley !). Aldrlch,411, 412. Sideknm v. Wabash, etc., By. Co., 596. Siegel V. Milwaukee & N. B. Co., 51. Siegrist v. Arnot, 24, 484. Slemers v. Eisen, 66. Sites V. Manchester, 138. Sllberstein v. William Wicke Co., 644. Sliver V. Kansas City, etc., B. Co., 112, 114. Silver v. Martin, 252. Silver Cord C. M. Co. v. McDonald, 486. Silvers V. Nordlinger, 219, 267. Sllvis V. Ely, 436. Slmms V. Sonth Car. By. Co., 471, 504. Simmons v. McConnel), 564. Simmons v. Monler, 212, Simmons v. New Bedford, etc., B. Co., 874. Simmons v. Oliver, 263. Simon V. City of Atlanta, 138. Simon V. The Fung Shuey, 344. Slmonds v. Henry, 425. Simons V. Q. W. By. Co., 343, 347. Simons v. Bose, 429, 438. Slmonson v. Chicago, etc., B. Co., 698. Simouton v. Lorlng, 108. Simpson V. Brown, 433. Simpson V. Griggs, 127. Simpson v. Hand, 512. Simpson v. L. 6. Omnibns Co., 523. Simpson V. L. &TSt. W. By. Co., 366. Simpson V, Tenn., etc., B. Co., 87. Simpson V. The State of CaL, 491. Sinai V. Louisville, etc., By. Oo„ 96. Siner v. G. W. By. Co., 399. Singleton v. East Count. By. Co., 30, 613. Sinram v. Pittsburgh, etc., B. Co., 112, 121. Sisk V. Crump, 288. Sisson V. Cleveland, etc., B. Co., 358. St. John V. Express Co., 347. St. Johns & H. B. Co. v. Bansom, 87-. St. Joseph, etc., B. Co. v. Chase, 86. Skelton v. h. & N. W. By. Co.,.277, 498. Skinner v. L. B. & S. C. By. Co., 623. Skinner v. Wilson, 452. Skottowe V.Oregon, etc.. By. Co., 661. Slack V. Lawrence Tp., 96. Slater ^;. Baker, 420. Slater v. Burlington, etc., B. Co., 508. Slater v. Sonth Carolina By. Co., 337. Slater V. Utica, etc., B. Co. 50. Slatteryu.O'Connell, 618. Slattery's Admr. v. Toledo, etc., B. Co., 641. Slaughter v. Metropolitan St. By. Co. , 486. Slayton v. Freemont, etc., B. Co., 78. Sleeman V. Barrett, 229. Sleeper v. Sandown. 503. Slight V. Gutzlaff, 105. Sloman v. Heme, 450. Slossen v. Bailroad Co., 92. Slosson V. Burlington, etc., B. Co. 472. St. Louis V. Eaime, 106. St. Louis, etc., E. Co. v. Bell, 276. 619, .520. St. Louis, etc., B. Co. v. Cantrell, 380, 394. St. Louis, etc., B. Co. v. Casner, 122. St. Louis, etc., B. Co. v. Dobbins, 598. St. Lonis, etc.lB. Co. v. Doyle, 39. St. Louis, etc., B. Co. v, Drennan, 216. St. Louis, etc., B. Co. v. Fairnbairn, 396. St. Louis, etc., B. Co. v. Fire Assoc, of Fhlla., 588. St. L., etc., & S. B. Co. v. Freeman, 613, 653. St. Louis, I. M. & S. By. Co. v. Goolsby, 130. St. Louts, etc.B. Co. v. Hackett, 205. St. Louts, etc., B. Co. ». Hanks, 463. St. Lonis, etc., B. Go. v. Henson, 599. St. Lonis, etc., B. Co. v. Hopkins, 306. St. Louts, etc., B. Co. v. Kelton, 494. St. Lonis, etc., B. Co. v. Ledbetter, 463. St. Louis, etc., B. Co. v. McMillan, 121. St. Lonis, etc., B. Co. v. Maddrey, 486, 651. St. Lonis, etc., B. Co. v. Needham, 645. St. Louis, etc., B, Co. v. Neel, 691. St. Lonis, etc., B. Co. v. Person, 380. St. Lonis, etc., B. Co. v. Piper, 352. St. Louis, etc., B. Co. v. Bed Biver, etc.. Line, 491. St. Loots, etc., B. Co. v. Bexroad, 614, St. Louis, etc., B. Co. v. BIchardson, 87. St. Louis, etc., B. Co. v. Bobbins, 362. St. Louts, etc., B. Co. v. Boberts, 32. St. Louis, etc., B. Co. v. Bosenberry, 463. St. Louis, etc.. By. Co. v. Southern Exp. Co., 336. St. Louis, etc., B. Co. v. Sweet, 551. St. Louis, etc., B. Co. v. Todd, 110. St. Lonis, etc., B. Co. v. Traweek, 483. St. Louis, etc., B. Co. v. Walbrink, 110. St. Lonis, etc., B. Co. v. Weakley, 346. St. Lonis, etc., B. Co. v. Weaver, 470, 652 TABLR OF CITATIONS. Beferences are to Pa^es. St. Lonls, etc., E. Co. ». White, 49. St. liOnls, etc., B. Co. v. Wilkerson, 162. St. LonlB, etc., B. Oo. «. Winkelmau, 96. Small V. Chicago, etc., B. Co., 122, Small V. Howard, 425. Small V. Bailroad, 91. Smallej v. Appleton, 308. Smart v. Morton, 9. Smethnrst v. Proprietors Ind. Cong. Church, 28, 71. Smid V. New Tork, 319. Smith V. Agawau Canal Co., 97. Smith V. Baker, 418. Smith V. Barnes, 438. Smith V. Birmingham Gas Co., 800. Smith V. Board of Com'rs. of Wayne Connty,303. Smith V. Boston Gas Light Co., 290, 533. Smith V. Boston, etc., B. Co., 364, 365. Smith V. Brazieton, 338. Smith V. British, etc., Steam Packet Co., 41. Smith V. Butler, 314. Smith V. Cairo, 314. Smith V. Causey, 132. Smith V. Central B. & B. Co., 394. Smith V. Chicago, etc.. By. Co., 89, 373, 471. Smith V. City Council of Alexandria, 302. Smith 0. Cock, 283. Smith V. Des Moines, 320, 321, 322. Smith V. Dobson, S99. Smith V. Dygert, 64. Smith V. Eastern, etc., B. Oo., 471. Smith V. Faxon, 107. Smith V. Fletcher, 70, 92. Smith V. Fordyce, 62. ,1 Smith V. French, 35. Smith V. Gardner, 64, 65. Smith V. Gllman, 321. Smith V. G. £. By. Co., S25, 526. Smith V. Smith, 2S3. Smith V. St. Paul, etc.. By. Co., 39, 486. Smith V. Southwestern Bailway Com- pany, 86. Smith V. Spitz, 201. Smith V. Havemeyer, 73. Smith V. HestonTille, etc., B. Co., 518. / Smith V. Holcomb, 454.' Smith V. Jameson, 254. Smith V. Eenrick, 70. Smith V. liipscomb, 434. , Smith V. Team, 479. Smith V. Tunstead, 430. Smith V. London Docks Co., 71. Smith V. London & St. Katharine Docks Co., 17. 281. Smith ». li. & S. W. By. Co., 28, 38, 81, Smith V. Louisville & N. B. Co., 204. Smith V. Martin, 69. Smith V. Memphis & A. C. F. Co., 208. Smith V. Milne, 224. Smith V. Minneapolis & St. L. B. Co., 113. Smith V. Mnsgrave, 29. Smith V. N. T:, etc., E. Co., 205, 384. Smith V. N. Cent. B. Co., 24. Smith V. North Carolina B. Co., 345, 346. Smith V. Overby, S97. Smith V. Pella, 306. Smith t). Philadelphia & B. B. Co., 499. Smith V. Eailroad Co., 353. Smith V. Bead, 418. Smith V. Bio Grande W. By. Co., 489. Smith V. Byan, 82. Smith V. Sabine & E. T. By. Co., 48. Smith V. Simmons, 21fi,2I7. Smith V. St. Joseph, 318. Smith V. St.iLawrence Towboat Coi, 47S. Smith V. Steele, iiSl. Smith V. The Seraphls, 494. Smith V, Tripp, 37. Smith V. Tillage of White Plains, 301. Smith V. Western By., etc., 337. Smith V. W. v. Tel. Co., 595. Smith V. Wilson, 415. Smitha v. L. & N. B. Co., 348. Smith's LEA'bma Cases, 125. Smith, etc., B. B. Co. v. Singleton, 379. Smock V. Dade, 436. Smoot V. Wetumpka, 470. Smotherman v. St. Louis, etc, B. Co., 376. Smothers v. Hawks, 423. Smyth V. Bangor, 311. Sneesby v. L. & Y. By. Co., 28. Sneider v. Adams Express Co., 346, 361. Sneli V. Bich, 252. Snell». Smith, 537. Snow V. Bailroad Co., 396, 495. Snydam v. Moore, 212. Snyder v. Hannibal, etc., B. Co., 388. Snyder V. Patterson, 135. Snyder v. Witmer, 280. Snyder's Admr's v. McCombs' Ex'x, 255. Soeder v. St. L., etc., B. Co., 554. Sofield V. Somers, 27. Solomon v. Manhattan By. Co., 466, 475. Somerset v. Foulett, 265. Somerset & C. B. Co. v. Galbraith. 461. South, etc., B. Oo. v. Henlein, 344. 34«i, 351, 352, 355, 596. South, etc., B. Oo. v. McLendon, 143, fiS6. South, etc., B. Co. v. Schaufler, 381. South, etc.B. Co. V. Sullivan, 542. South, etc., B. Oo. v. Trick, SO. South, etc., B. Co. v. William, 121. Southampton Bridge Co. v. Southamp- ton Board, 298. Southard v. Minneapolis, etc.. By. Co., 360. Sonthcote v. Stanley, 62, 79,252, 279. Southern Bell, etc.. Co. v. Watts, 462. Southern Ex. Oo. v. Brown, 214. Southern Express Co. v. Crook, 346. Southern Exp. Co. v. Glenn, 336. Southern Express Oo. v, Newby, 3^ Southern Express Oo. v. Shea, 360. Southern Ban. By. Co. v. Clark, 366. Southern Marble Oo. v. Darnell, 603. Southern Pacific B. Oo. v. Dnfour, 97. Southern Pac. By. Co. v. Johnson, 388. Southern Pac. Co. v. LoSerty, 643. Southern Pac. By. Co. v. Maddox, 352. South West Va. Imp. Co. v. Andrew, 471. Southwestern B. Oo. v. Bently, 362. Southwestern B. Co. v. Felder,340. Southwestern B. Co. v. Hankerson, 60!S. Southwestern B. Co. v. Paulk, 644. Southwestern T. & T. Co. v. Crank, 60S. Soothworth v. Old Colony, etc, B. Co., 284. Sowers v. Lowe, 93. Sowles V. Moore, 85, 48. Spangler v. City, etc., of San Frandsco, 306. Spannagle v. Chicago & A. B. Co., 876. TABLE OF CITATIONS. 653 Beferences are to Pages. Spaik V. Heslop, 602, Sparx V. St. LoDls, 142. Spanlding v. Chicago, etc, B, Co., S7. SpanldiBg V. Thompson, ^. Spanldliig V. Town ot Staerman, 144. Spear v. Marquette, etc., B. XJo., 91. Spear v. Spear, 263. Spearbracker c. Larrabee, 179. Spears v. Chicago, B. & Q. B. Co., S29. Speed V. Atlantic, etc , 1^ Co , 217. Speight V. Gaant, 255, 256, 258, 239, 261, 262. SpeUman v. Lincoln Bapid Transit Co., 373. Spencer e. Campbell, 288. Spencer t>. Illinois Cent. B. Co., 600. Spencer v. Mil'^aokee, etc, B. Co., 53, 378. Spencer v. Pilcher, 21L Spice V. Bacon, 419. Splllane v. Uiasonri Fac By. Co., 520. Splnatli V. AUas S. S. Co., 345. Spinner v. New York Central, etc., B. Co., Ul, 112, 114, 116. Spofford e. City of Oskaloosa, SOS. i Spofford V. Harlow, 39, 6S, 480, 482. Spokane & P. By. Co. v. Holt, 518. Spoonerv. Hannibal & St. J. B. Co., 365. Spragae e. N. T. Central B. Co., 340. Spring V. Hager, 415. Springett v. Ball, 462. Springfield V. Spence, 304. Springfield Consolidated By. Co. v. Welsh, 520. Sproat V. Directors, etc, 125. Sprow c. Boston & A. B. Co., 498. Spurrier v. Front St. Cable By. Co., 472. Squire v. Chillicothe, 318. Sqnire v. New Tork Central B. Co., 352, 353,355. Stackns v. New Tork Cent., etc, B. Co., 51, 500. Stacy V. Dane Co. Bank, 443, 450, 451. Stacy V. Enickerlwcker Ice Co., 35. Staettero. HcArthur. 127. Stafford v. Bubens, 552. Stager v. Bidge Aye. Pass. By. Co., 53, 376. Stanley v. City cf Davenport, 142. Stanley v. Union Depot B. Co., 36. Stannard c. UUithorne. 438. Stanton v. Lonlsville & N. B. Co., 36. Stanton v. Norfolk & C. B. Co., 97. Stanton v. Springfield, 312. Staples V. Schmld, 205, 589. - Stapley o. L. B. & S. E. By. Co,, 281, 498. State V. Baltimore, etc, B. Co., 500, 642. State V. Berdetta, 139. State V. Blancli, 451. State V. Board of Commissioners, 145. State V. BoBcaryen, 145. State e. Boston, etc., B. Co., 24, 610, 545. State o. Brophy,463. State V. Burlington, 135. State V. Consolidated European, etc, B. Co., 372. State V. Dalton, 455. State V. Grand Trunk B. Co., 139. State V. Guilford, 258. State V. Hadlock, 454. State V. Housekeeper,423. State V. Lauer, 483. State e. Lowrance, 155. State r. McDermott, 127. State V. Maine Central B. Co., 61, 473, 541. State V. Manchester, etc, B. Co., 498 640. State f). Mersereau, 222. State V. Mobile, 138. State V, Moore, 80. State V. Morris, etc, B. Co., 139. State V. Mullen, 454. State V. Omaha, 138. State V. Philadelphia, etc, B. Co., 604. State V. Probate Court ot Dakota Coun- ty 545. State v. Bemhoff, 131. State V. Schultz, 424. State V. Spencer, 454. State V. Townsend, 345. State V. Vermont, etc., B. Co., 372. State 0. Williams, 105. Stanb V. Eendrick, 364. Stanffer «. MlUer Soap Co., 690. Steams v. City ot Biciimond, 301, 302. Steamboat Crystal Palace v. Vanderpool, 407. Steamboat Farmer v. McCraw, 491. Steamboat New World v. King, 24, 384. Stearns v. City ot Bichmond, 9. Stebbins v. Central, etc, B. Co., 91, 491, 602. Stebbins e. Keene, 144. Steele. Lester, 213,604. Steele V. Boston, 306. Steele v. Burkhardt, 40, 461, 480, 482. Steele v. Dunham, 450. Steele v. So. Bast By., 221. SteSen v. Chicago & N. W. By. Co., 524. Stein V. Council Bluffs, 318. Stelnhanser v. Spraul, ^. Stephani v. Browne, 102. Stephens V. White, 429. Stephenson v. Duncan, 494. Stephenson v. Southern Pac Co., 202. Sterger v. Van Siclen, 77, 102. Stem V. Michigan Cent. B. Co., 112. Stevens v. Davenport, etc, B. Co. , 373. Stevens V. Belley, 97. Stevens v. Nichols, 75, 77. Stevens' v. Squires, 213. Stevens v. Walker, 427, 429. Stevens i;. Woodward, 205. Stevenson v. Joy, 106. Stevenson v. New Orleans, etc. , B. Co., lU. Stevenson v. Pullman Palace Car Co., 404. Stevenson v. Wallace, 6, 7, 8, 9, 275. Stewart v. Austin, 325. Stewart v. Brooklyn, etc., B. Co., 207. Stewart c. Clinton, 94, 302. Stewart v. Davis, 480. Stewart v. Evans, 232. Stewart v. Heard, 413. Stewart v. International, etc, B. Co., 393. Stewart v. Louisville & N. B. Co., 361, 363, 537. Stewart v. Newport News & M, V. B. Co., 461. Stewart v. Parsons, 416. Stewart v. BIpon, 44, 596, 599. Stewart V. Sanderson, 264. Stlckneyti. Maidstone, 485. Stickney r. Salem, 143. Stiles V. Cardiff Nav. Co., 800. Stiles v. The Atlanta, etc, B. Co., 397. Stilling V. Town of Thorp, 312, 654 TABLE OF CITATIONS. Beferences are to Pages; SUllson V. Hannibal & St. Joseph B. Co., 517. Stimpson V. Connectlcnt Biver B. Co., 365. Stimpsonv. Union Fac. By. Co., 113. Stimson v. Fitinbam, 451. Stinson v. City of Gardiner, 521. Stock V. Wooa, 472. I Stoddard v. ViUage of Saratoga Springs, 304. Stoddard v. Winctiester, 3X9. Stoelirs;. City of St. Paul, 303. Stoessiger v. S. Easi. By. Co., 336. Stokes V. East. Co. By., 395. Stokes V. Saltonstall, 485, 623, 527. Stokes V. Tramper, 438. Stone V. Cartwrigtit, 253. Stone V. Chicago, etc.. By. Co., 204. Stone V. Dry Dock, etc., B. Co., 513. Stone V. Hills, 200. Stone V. Hyde, 239. Stone V. New York, etc., B. Co., 340. Stone V. Bosenheim, 593. Stone V. Stone, 257. Storm V. Barger, 134. Storrie v. 'Idarshall, 642. Stout on Contbaotb, 256. Stokt on Bailments, 393. Stonghton v. Manufacturer's Nat. Gas Co., 485. Strains v. Kansas, etc., B. Co., 379. Stratton v. Earopean, etc., B. 09,,92. Strattou V. Staples, 82, 103. Stranb v. Edely, 113. Stranss v. Francis, 436. Street v. Laiimler, 482, 590, 591. Streeter v. Breckenridge, 308. Street By. Co. v. E:idle, 508, 509, 515. Strerger's Case, 330. Strong V. Campbell, 323. Strong V. Sacramento, etc., B. Co., 506, Stront V. Millbridge, 97. Stratzell V. St. Paul City By. Co.. 620. Stuart V. Erans, 235. ' Stnbley v. L. & N. W. By. Co., 277, 498. Studley v. Oshkosh, 306. Stnrges v. Theological Ed. Soc, 219, 271. Sturgis V. Bobbins, 85. Sturt V. Hellish, 254. Stutz V. Chicago & N. W. By. Co., 597. Sugarman v. Manhattan El. B. Co., 91. SuUiTau Coanty v. ^Arnett, 691. Snllivan v. Boston & H. It. Co., 77. Sullivan ». City of Oshkosh, 319. Snllivan v. Louisville Bridge Co., 493. Sullivan V. Lowell & D. St. By. Co., 587. Sullivan V. Oregon By. & Nav. Co., 112. Sullivan V. Zlner, 6, 7. Summerfleld v. W. U. Tel. Co., 597. Summers v. Crescent City B. Co., 53. Summers v. Hannibal & St. J. B. Co., 111. Sumner v. Walker, 360. Susquehanna Depot v. Simmons, 218. Sutherland v. Standard Life & Ace. Ins. Co., 52. Sutherland v. Sutherland L. & A. I. Co., 377. SUTHEBLAND ON DAMAGEa, 599, 602. Sutton V. Bennett, 3, Sutton V. Clarke, 292, 301. Sutton V. Town of Vernon, 56. Sutton V. Wauwanto'sa, 480.' Sutton V. 'W41ders, 258, 259. Swann v. Brown, 60, '"'. •'• Swann v. Smith, 418. Swannell v. Ellis, 438. Swanson ». French, 426,493. Swearingen v. Missouri B. Co., Ill, 113. Sweeney «. Murphy, 216. /,,- Sweeney s;.»Newyort, 808. Sweeny v. Barrett, 278, 279. Sweeny v. Old Colony, etc., B. Co., 73, 77,* 279,394,505. Swett V. CnttB, 94. Swift V. Applebonej 131, 132. Swift V. Philadelphia & B. B- Co., 339. Swift V. Staten Island B. T. B. Co., S29. Swigert V. Hannibal, etc., B. Co., 53, 315, 376. Swinaston v. LeBoutlUier, 208. ' Swinfen v. Swlnfen, 258. Swoboda v. Ward, 211. Swords V. Edgar, 102, 104. Sykes v. N. E. By. Co., 570. Sylvester v. Maag, 126. T. Tabor V. St. Paul, 307. Taf t V. New York, P. & B. B. Co., 117. Talbot V. Minneapolis, etc., B. Co., 111. Talley v. G. W. By. Co., 362. Tancll V. Seaton, 59. Tanner v. New York, etc., E. Co.j iSl. TArbell v. Boyal Exch. S. Co., 340. Tarry v. Ashton, 18, 214, 221, 223, 267, 271. Tatton V. G. W. By. Co., 369. Taylor v. Bailey, 107. , Taylor v. Benham, 255. Taylor v. Carew Mfg. Co., 465. Taylor v. City of Austin, 95. Taylor v. City of Cumberland, 306. Taylor v. Danville, etc., B. Co., 376. Taylor v. Downey, 413. Taylor v. Evans, 437. Taylor v. Gorman, 433. Taylor ». Grand Trunk E. Co., 374, 689. Taylor v, Greenhalgh, 216. Taylor v. Mayor, 102. Taylor v. Missouri P. By.. Co., 466. Taylor v. New York, 102. Taylor v. Peckham, 135, 305. Taylor v. Pennsylvania Co., 374. Taylor v. South Covington & O. St. By. Co., 620. Taylor v. Yonkers, 800. Taylor, B. & H. By. Co. v. Montgomery 347, 352. Taylor, B. & H. B. Co. v. Warner, 551. Teall V. Barton, 81. Tebbutt V. Bristol By. Co., 7L Tefft V. Wilcox, 423, 425. Teipel V. Hilsendegen, 473. Telegraph Co. v. Grlswold, 593, 594. Telfer v. Northern, etc., B. Co., 498, 640. Templeman v. Haydon, 392, 623. Templeton v. Linn Co., 136. Tenant v. Goldwln, 123. Tennenbrock v. South Fac, etc., B. Co., 51. Tennessee & C. B. B. Co. v. Danforth, 692. Tennessee C, I A B. Co. v. Hamilton, 98. Tennesse 0. 1. &. B. Co. v. Herndon, 661> Tenney v. Berger, 429. TABLE OP CITATIONS. 6:55 References are to Pages. Tene Haute, etc, B. B. Co. v. Bnck, 13, 54, Terre Hante, etc., B. Co. v. Graham, 46S. Terre Haute, etc., B. Co. v. Jackson, 207. Terre Hante & I. B. Co. v. Chioaeo, etc.. By. Co., 371. Terre Haute & I. B. Co. v. Voelker, 499. Terre Haute & P. E. Co. v. Barr, Bl, 499. Terry v. New Tork, etc., E. Co., Ill, U03. Terry v. Smith, 96. Tethexow v. St. Joseph & D. M. By. Co., 554. Tewksbniy v. Bocklln, 105, 109. Texas O. By. Co. v. Childress, 123. Texas Cent. By. Co. v. Stewart, 373. Texas, etc., E. Co. v. Capps, 365. Texas, etc., E. Co. v. Crowder, 471. Texas, etc. By. Co. v. Douglass, 693. Texas, etc., E. Co. v. Murphy, 375. Texas & N. O. E. Co. v. Berry, 5*0. Texas & S. O. By. Co. v. Bingham, 380. Texas & N. O. By. Co. v. Brown, 466, 499 603. Texas & F. By. Co. «. Adams, 361. Texas & Pac. By. Co. v. Best, 396. Texas & P. B. Co. v. Black, 208. Texas & P. By. Co. v. Bledsoe, 540. Texas & P. By. Co. t>. Boyd, 382. Texas & P. By. Co. v. Brown, 394. Texas & P. By. Co. v. Buckalew, 374. Texas & P. By. Co. v. Doberty, 35. Texas & Pac By. Co. v. Fletcher, 515. Texas & P. Ey. Co. v. Fuller, 502. Texas & P. Ey. Co. v. Gaines, 87. Texas & P. By. Co. v. Garcia, 384. Texas & P. By. Co. v. Gorman, 2. Texas & P. By. Co. v. Hall, 340. Texas & P. By. Co. v. Hamilton, 374. Texas & P. B. Co. v. Hayden, 204. Texas & P. By. Co. v. Elepper, 354. Texas & P. Ey. Co. v. Mangnm, 104. Texas & P. By. Co. v Mather, 204. Texas & P. B. Co. v. Moody, 204. Texas & P. Co. v. Overall, 401. Texas & P. By. Co. v. Robertson, 640. Texas & P. By. Co. v. Sims, 354. Texas & St. L. Ey. Co. ». Orr, 470. The Anerly, 491. The A. W. Thompson, 640. The Baltimore, etc., B. Co. v. State, 52. The Bernlna, 506. The Brantford City, 358. The Caledonia, 353. The Catherine v. Dickinson, 491. The Cleveland, etc., B. Co. v. Suther- land, 5S7. The Corsair, 642. The Cumberland Valley B. Co. -o. Man- gans, 64. The Dorris EcklioS, 491. The EDrlqne, .355. The Fred W. Chase, 491. The Geoma, etc., E. & Banking Co. v. Cox., 121. The German Faseenger By. Co. v. Wall- ing, 377. Tbe Gulf Stream, 491. The Badgi, 348. The Haverton, 491. The International, etc.. B. Co. v. Kin- dred, 541. The Kansas City, etc., B. Co. n. Simpson, 346. The Maryland B. Co. v. Ifeuber, 51, 501. The Max Morris v. Carry, 466, 491. The Milan, 607. The Miranda, 491. The Morning Light, 491. The Plymothean, 491. The People t>. Quick, 437. The Beliance, 627. The Sam Brown, 491. The Samnel E. Spring, 626. Tlie Sidney, 527. The Sir Garnet Wolseley, 478. The Wabash, etc., E. Co. «. Wallace, 464. ThelBsen v. BeUe Plains, 319. Theroux V. Northern Pac. B. Co., 556. Thickstnne v. Howard, 411. Thirteeotb, etc., St. Pass. By. Co. v. Boudron, 62, 377. Thomas v. Allentown, 6, 7. Tbomas v. Boston, etc., B. Co., 340. Thomas v. Chicago, etc.. By. Co., 61, 603, 520. Thomas v. Harris, 687. Thomas v. Henjes, 74. Thomas v. Bhymney Ey. Co., 382. Thomas v. Schee, 430. Thomas v, Wabash, etc.. By. Co., 346. Thomas v. Winchester, 11, 13, 286, 287. Thome v. London, 304. THOMPSON'S Cabriers of Passengbes, 364, 366, 374, 383, 401, 405. Tliompson v. Central, etc., B. Co., 470. Thompson v. Cook, 120. Thompson v. Finch, 257. Thompson t>. Flint & P. M. Ey. Co., 465. Thompson v. Jackson, 449. Thomfson's Liabllitt of Officers, .324. Thompson v. Louisville & N. B. Co., 43, 637, 644. Thompson on negugbnoe, 2, s, 31, 33, 49, 50, 64. 65, 85, 104, 109, 252, 268, '272, 277, 292, 293, 30O, 313,450,461, 4B2, 463,473, 474, 491, 493, 517, 526, 532, 537. Thornbnrg v. American Strawboard Co., 537. Thornton v. Cleveland, etc, Ey. Co., 499. Thorogood v. Bryan, 606, 607, 611, 600, 603. Thorp V. Minor, 212. Thorpe v. Missouri Pac. Ey. Co., 466, 494. Thorpe v. Ballroad Co., 409, 410, 411. Thurber v. Harleoi, etc., B. Co., 603. Thnrlnger v. New York, etc., E. Co., 309. Thurston v. Hancock, 6, 7. Tibbits V. Enox, etc, B. Co., 220. Tiemey v. Troy, 143, 114. Tiffin V. McCormack, 292. Tighe V. Lowell, 621. TiUett V. Ward, 6. 124, 129, 284, 285. Tilley V. Hudson Elver B. Co., 637. TlUey V. St. Louis & S. F. By. Co., 88. Timlin v. Standard OU Co., 102, 106. Timpson v. Manhattan By. Co., 395. Tlsdale«. Norton, 36. TItcomb V. Fitchbnrg E. Co., 143. Tobias V. Michigan Cent. E. Co., 601. Tobin V. Missouri Pac. Ey. Co. 621, 639, 642. Tobin V. Portland, etc, B. Co., 73, 396. Todd V. City of Troy, 312. Todd ». Cockrell , 271. Todil V. Flight, 102. Todd«. Old Colony, etc., E. Co., 63, 378, 384. Talcott V. Wabash B. Co., 366, 366. 656 TABLE OP CITATIONS. Beferences are to Pages. Toledo, etc., B. Go. v. Beggs, 183, S27. Toledo,* etc., B. Co, v. Broo^ks, 482. Toledo, etc., E. Co. v. Gary, 110, 111, 119. Toledo,etc., B. Co. v. Cbapln, 113. Toledo, etc., B. Co. v. Cline, 61, 464, 199. Toledo, etc., B. Co. v. Coen, 117. Toledo, etc., B. Co. v. Conioy, 541. Toledo, St. L. & K. B. Co. v. Crittenden, 612. Toledo, etc., B. Co. v. Eden, 117. Toledo, etc., B. Co. v. Grable, 614. Toledo, etc., B. Co. v. GtosIi, 73. Toledo, etc., B. Co. v. Hammond, 364, Toledo, etc., B. Co. «. Harmon, 20S. Toledo, etc., B. Co. v. Jobnson, 690. Toledo, etc., B. Co. v. Jones, 51. Toledo, etc., B. Co. v. Max£eld,90. Toledo, etc., B. Co. v. Moore, 541. Toledo, etc., B. Co. v. Owen, 114. Toledo, etc., B. Co. v. Biley, 603. Toledo Con. St. E. Co. v. Sweeney, 320. Toledo, St. L. &K. C. E. Co. v. Tapp,363. Tolmanv. Syracase, 473. Toleon v. Inland &'S. C. Co., 470. Tomle V. Hampton, 101, 164. . Tompkins v. Sands, 419, 161. - Toomey v. L. B. & 8. 0> B. Co., 389, 187. Tootle V. Clifton, 93, 91. Topeka City E. Co. v. Hlgga, 377. Topbam V. Goodwin, 229. Topping V. Town of St. Lawrence, B13. Torrey v. City ol Scranton, 95. Torrey v. Boston & A. B. Co., 376. Totten V. Fblpps, 62, 72, 73. Tonb ». Sobmidt, 112. , Towanda B. Co. v. Manger, 461. Tower v. TJtica, etc., B. Co., 363. Toole V. Becket, 107. Town of Albion v. Hetrlck, 608. Town V. Armstrong, 108. Town of Fowler v. Llnqnlst, 33. Town of Gosport v. Evans, 307. Town of Knightstown v. MnsgroTe,510. Town V. Lampblr^, 281. Town of Montezuma v. Wilson, 318. Town of Montlcello v. Kenard, 319. Town of PoseyvUle v. Lewis, 179. Town of Prescott v. Connell, 39. Town of Bosedale v. Ferguson, 318. Town of Salem v. Gillen, 311. Town of SalUvan v. Pblllips, 95. Town of Nappanee v. Enckman, 596. Town of Wheaton o. Hadley, 318. Townsend v. Brings, 696. Townsend v. City of Fa:ola, 602. T|i. of Crescent v. Anderson, 315. Tp. of Burrell v. Uncapber, 137. Tp. of Nortb Manhelm v. Arnold, 112. Township of Westmahony v, Watson, 33. Townsley ». Missouri Pao. By. Co., 121. Tozer v. Cblld, 415. Tracy i;. Fnllman Palace Car Co., 408. Tracy v. Williams, 451. Trainers' Case. 387. Tramper v. Verbage, 132. Transfer v. Eelly, 509. Transportation Co. v. Cbicago, 9, 302. Tranep. Co. v. Downer, 532. Tranter v. City of Sacramento, 137. Trask v. Sbotwell, 77. Treadwln v. Great Eastern By. Co., 336. Treason v. Fearman, 438. Tredway v. Sioax City, etc., B. Co., 111. Trigg V. St. Loaie, etc., E. Co., 697 Trinity & S. By. Oo. v. lane, 107. Trltts V. IT. T. and IT. E. B. Co., 32. Trope V. Kerns, 137. Trapnell v. Bed Oak Junction, 321. Trousolalr v. Pacific Coast S. S. Co., 601. Trow V. Vermont, etc., B. Co., 119, 460, 463, 171. J, Trowbridge^. Danville Street Car Co., 469. Trowbridge v. True, 9. Troxel v. Vinton, 321. Troy V. Cape F«ar & T. V. B. Co., 26. Truax v. Cbicago, etc.. By. Co., 77. True II. Int. 8. Co., 591. Trneman v. L. B. & S. 0. By. Co., 81. Tmesdell v. Combs, 151. Truman .v. L. B. & S. C. By. Co., 298. Trumbull v. Xlcbolson, 133, 136. Trustees v. Boisseiux, 326. Tuberfleld v. Stamp, 81. 81. Tucker i>. Baltimore & O. B. Co., 171. Tncker v. Bradley, 4H. Tucker v. Cbaplin, 537. Tucker v. Salt Lake City, 319. Tuff V. Warman, 159, 162, 607. Tulley V. Chicago, B. & I. B. Co., 381. Tally v. Fltchburg B. Co., 560. Tunstall v. Christian, 7, 8. Turley v. Thomas, 63. Turner v. Buchanan, 33. Turner v. Ft. Worth & D. O. By., 166. Turner v. Haar, 48. Turner v. Holtzman, 138. Tamer ». Klekr, 280. Turner v. Newburg, 292. Turner v. Page, l.'iS. Turner v. The Hannibal, etc., B. Co., 51, 199. Turner v. Thomas, 66^ 82. Turner v. Vicksburg, etc., B. Co., 391. Turpen v. Booth, 150. Turquand v. Marshall, 327, 328. Tattle V. Manafactorlng Co., 103. Twakey v. Fruin, 287. Twegg v.'Byland, 127. Twogood V. New York, 316, 479. Twomley v. Central Park, etc., B. Co., 186, 487. Tyler v. Alfred, 119, 4^. Tyler v. Old Colony E. Co., 499. Tyler v. BIcamore, 45. Tyler V. Western Union Tel. Co.,6Z7, 691. u. tnrlch V. Dakota Loan & Trust Co., 8. Ulrich V. Eallroad, 110. , TJltzen V. Nlcols, 60. IJndhejem v. Hastings, 178. Union Bank v. Govan, 136. Union Bank v. Gray, 136. Union Manafactorlng Co. v. Morrlasey, 195. Union Pac. By. Co. v. Adams, 198. Union Pac. Ev. Co. v. Arthur, 88, 90. Union Pac. B. Co. v. Artist, 208. Union Pac. Ey. Co. v. Dunden, 519. Union Pac. Ey. Oo. v. Callahan, 60. , Union Pac. B, Oo. v. Brie E. Co., 339. Union Pac. By. Ca. v. Goodridge, 339. Union Pac. By. Co. t>. Hutchinson, 600. Union Pao. By. Oo. v. Jones, 697. TABLE OP CITATIONS. 657 References are to Pa^s. Union Pac B. Oo. «. Keller, 87. Union Fac By. Co. v. Leaby, 48i. Union Pac. By. Co. v. McDonald, 2S8, 519. Union Fac By. Co. v. Uertes, 463. Union Pac B. Co. v. Xichols, 38& Union Fac By. Co. v. Bainey 3SS. Union PacUlcB. Go.c. Bollln8,465. Union Fac B. Co. v. State, 439. Union Fac By. Co. v. Taa^ait, 339. Union Pac D. & G. By. Go. v. WlUiams, 69a Union Steamship Co. v. Sew York, etc, Co., 491. Union Stock Yard, etc, Co. v. Bonike, 77. Union Stone & Mach. Works v. Caswell, 454. United Society of Shakers o. Under- wood, 324, 331. United States v. Appleton. 7. United States v. Beban, 592. United States t>. Nat. Ezchanse Bank, 443. United States v. Peachy. 6, 8. United States Express Oo. v. Backman, 336, 344, 346. United States Egress Co. v. Harris, 344, 317,348. U. S. Tel. Co. r. 6ilder8leeTe,691, 593, 591. Upham V. Detroit City By. Co., 52, 377. Utgohn v. Richland Township, 98. Urias V. Pennsylvania B. Co., 51. Urqnhart v. City of Ogdensbnrg, 301, 307. Usher v. West Jersey B. Co., 5^. Y. Vail r. Jackson, 436. Vale r. Bliss, 82. Valentine r. Broadway & S. AJB. Co., 376. Vallo V. U. S. Bzp. Co., 39. VanAltav. HcElnney, 132. Van Anken v. Chicago, etc., B. Co.,'18Z. Van Brant v. Cincinnati, etc, B. Co., 539. Vance v. Throckmorton, 112. Van Cleave v. Bacber, 153. Vanderbeck v. Hendry, 76, 279, 519. Vanderblltc. Bichmond Tp. Co., 205. Vandergrift v. Delaware B. Co., 110. Vanderline v. Smith, 437. Vanderpool v. Hnsson, 141.- Van Dozer v. Elmira, etc, B. Co., 96. Van Dyke v. Cincinnatj, 309. Van Etten v. Town of Westport, 144. Van Fleet t>. New York, etc., B. Co., 83. Van Gent v. Chicago, etc.. By. Co., 551. Vanbooser v. BerghoS, 423, 4S3. Van Leaven V. Tyke, 282. Van Norden v. Bobinson, 55. Van Sandan v. Browne, 434. Van Slyck v. Shell, 283. Van Tol v. S. E. By. Co., 367. Van Wert Nat. Bank r. First Nat. Bank, 112. Van Winkle c. American Steam Boiler, Ins. Co., 12. Vamey r. Manchester. 520. Vamnm t>. Martin, 129. Vanghan v. Menlove, 81, 81. - Vangban r. TaS Vale B. Oo.,3, 81, 89, 277. Vanghton v. London &N. W. By. Co., 342. Vawter v. Holtz, 648, 651. VeerhDsen v. Chicago, etc, B. Co., Ill, 113. Veitch V. Bassell, 432. Venables v. Smith, 200, 313. Vennal v. Gamer, 178. Vhltbeck v. N. Y. Cent By. Co., 60S. Vick V. New York Cent., etc., B. Co., 387. Vlckers v. The Atlantic, etc, B. Co., 63, 613. Vioksbnrg v. Hennessy, 143, 473. Vicksbnrg, etc., B. Oo. v. Hart, 375. Vicksborg & M. B. Oo. v. Phillips, 531, 539, 543, 617. Victor llln. Co. v. Homing Star Mln. Co., 6. Victory V. Foran, 107. Vigo Ag. Soc V. Bmmfleld, 60. Village of Oartervllle v. Cook, 38, 308. Village of Clayton v. Brooks, 314. Village of Evanston v. Fitzgerald, 307. Village of Jefferson v. Chapman,292,318, 161. Village of Mansfield v. Moore, 306, 311. Village of MarBeilles r. Howland, 146. Village of Marseilles f7. Elner, 146. Village of Orleans e. Ferry, 166. Village of Valparaiso v. Donovan, 306. Virginia, etc.. By. Co. v. Johnson, 359. Virginia, etc., B. Co. v. Sayers, 31S. Virginia H. J. By. Oo. v. Washington, 372. Vredenboig v. Behan, 135. Voegeli V. Pickel M. AG. Co., 205. w. Wabash B. Co. v. Black, 355. Wabash B. Co. v. Brown, 311. Wabash By. Oo. v. Farver, 215. Wabash B. Co. v. Ferris, 116. Wabash By. Co. v. Locke, 621. Wabash By. Oo. v. Morgan, 596. Wabash E. Co. ». Nice, 115. Wabash By. Co. v. Pearson, 116. Wabash B. Oo. r. Scbac^et, 508. Wabash B. Co. v. Smith, 87. Wabash E. Co. r. Zelgler, HI. Wactasman v. Columbia Bank, HL Wade V. Carr, 63. Wade V. Leroy, 696. Wadhams v. Gay, 437. Wadsworth c. ConneU,264. Wadsworth v. Marshall, 431. Wain V. Beaver, 429. Walte ». N. B. By. Co., 507. 513. Wakefield v. Newell, 94, 302. Wakeham v. Tp. of St. Clair, 137, 112. Wakemaa v. Dalley, 321. Wakemanv. Bobinson, 526. Wald V. LoaisvlUe, etc., B. Co., 367. Waldeck v. Brande, 132. Walden v. Bolton, 137. Waldo r. Goodsell, 566. Waldron r. Haverhill, 300. Walkenhani v. Chicago, etc. By. Co., 115. Walker c. City of Kansas, lH. Walker v. Ene B. Co., 696. Walker v. Globe Mfg. A Imp. Co., 108. Walker v. Goe, 28, 117. fV alker v. Goodrich, 432. 42 658 TABLE OF CITATIONS. References are to Pages. Walker ». Herron, 130. Walker v. Hallock, 119. Walker v. Jackson, 312. Walker v. Lake Shore & H. S. By. Co., 643. Walker v. Old Colony E. Co., 95. Walker v. EeldsvUle, 315, 179. Walker v. Stevens, 133. Walker v. Ylcksborg, S. & P. B. Go., 314, 379. Walker v. Westfleld, 174. Walker v. Wlnstanley, 77. - Walkup V. May, 65. Wall V. Livezay, 627. Wallace v. Cannon, 482, Wallaces;. Clayton, 337. Wallace v. Unblin, etc.. By. C6., 336. Wallace v. Evans, 110. Wallace v. Lincoln Say. Bapk, 324, 328. Wallace v. Matthews, 316. Wallace v. Merrimack Biv. Nav., etc., Co., 40, 481. Wallace v. Sew York, 687. Wallace v. Western W. C. E. Co., 692. Wallace v. Wilmington & JX. E. Co., 602. Wallace v, Zent, 108. Waller v. Dabnqne, 301. Wallers. Lasher, 221. Walling V. Potter, 117. Wallingtord v. Columbia & Q. B. Co., 315, 353. Wallls V. L. & 8. W. Ey. Co., 362. Walpole V. Carlisle, 430. Walsh V. Pltchbnrg B. Co., 78, 619. Walsh V. New York, 300. WaUh V. Oregon, etc., E. & Nav. Co., 473. Walsh V. Forterfleld, 414, 415. Walsh V. Virginia, etc., B. Co., Ill, 112, 528. ' Walters v. Chicago, etc;, E. Co., 518, 546. Walters v. Pfeil, 69. Waltham v. Kemper, 136. Walton V. Ackerman, 489. Walton V. Booth, 41, 286. Walton V. Christie, 587. Walton V. St. Lonis, etc., B. Co., 113. Wanni;. W. U. Tel. Co., 694. Ward V. Blackwood, 696. Ward V. Fagin, 107. Wardv. Gen. Omnibus Co., 206. Ward v. Bochester Blectric Ey. Co., 499. Ward V. Sands, 134. Ward Co.i;. N.O. City E. Co., 602. Warden v. Bailroad Co., 324. Wardle v. The Kew Orleans, etc., E. Co., 64. Warner v. Griswold, 432, 433. Warren Bank i>. Snffolk Bank, 452. Warren v. Fitchbnrg B. Co., 374. Warren v. Kanf man, 533. Warren v. Bailroad Co., 274. Warmington v. Atchison, etc., E. Co., 488. Washburn Mfg. Co. v. Worcester, no. Washington & G. E. Co. v. Tobriner, 172, 190, 597. Wasntier v. Delaware, etc., B. Co., 46, 281, 372, 873. Water Co. v. Ware, 218, 219, 267. Waterbnry B. Kew York Central, etc., E. Co., 383. Waterman v, Alden, 257. Waterman v, Chicago & A. E. Co., 42, 474. Watier v. Chicago, etc.,B. Co., 119. Watklns v. Goodall. 108. Watkins v. Gt. W. Ey. Co., 389. Watkins v. Boberts, 59. Watklns v.^ymili, 366, 367. Watson V. Georgia Pac . By. Co., 379. Watson V. Lisbon Bridge, 590, 691. Watson V. Mnirhead, 428, 430, 134. Watson V. St. Paul City By. Co., 374. Watt V. Brookover, 437. Watts V. Girdlestone, ^3. Watts V. Porter, 138. ' Way V. Townsend, 451. Wayde v. Lady Carr, 65. Wear v. Gleason, 414. Webb V. Denver & B. G. W. By. Co., 642. Webb V. East Tenn. Y. & 6. B. Co., 510. Webb V. B. B. Co., 16, 85, 89. Webb V. Bennie, 524. Webber v. Hoag, 127. Weber v. New York Cent., etc., B. Co., 500. Weber Wagon 06. v. Kehl, 495. Weblin v. Ballard, 232. Wbbb's Pollock on tobts, 2, 28, 78, 89, 131, 134, 283, 286, 287, 519, 603. Webster v. Borne, etc., B. Co., 382. Weed V. Panama B. Co., 207, 366. Wesks OS Attobnets, 433, 136, 137. Weems v. Mathieson, 539. Weetjen v. Tibbard, 331. Wehman v. Minneapolis, etc.. By. Co., 360. Welck V. Lander, 38. Weide V. Thlel, 128. Welghtman v. Louisville N. O. & T. By. Co., 41, 43. Weil-«. Dry Dock, etc., E. Co., 611. Weiland v. White, 437. Weiler v. Manhattan By. Co., 596. Weiner v. Hammell, 306. Wetntz V. Kramer, 462. Weir V. Express Co., 348. Wels V. Madiaon, 94, 303. Weia V. Oregon 1. & S. Co., 97. Welsenberg V. Winneconne, 144, 115, Weisser v. Dennison, 112. WelBsner V. St. Paul City By. Co., 611. Welch V. Challen, 130. Welch ti. Lanrance, 392, 623. Welch V. McAllister, 72, 278. Wejdon v. New York & Harlem By. Co., 200. Welfare i>. L. B. & S. 0. Ey. Co., 71, 213, 390,621,526,630,533. Wellen v. Morrill, 1 04. Wellenhoffer v. New York, etc, B. Co., 505. Weiler v. L. B. & S. O. By. Co., 399. Weiler v. McCormick, HI. Wellingtons. Downer Kerosene Oil Co., 13, 287. Wellock V. Constantiue, 619. W^ells V. Abraham, 619. Wells V. Howell, 109. Wells V. New York Cent. B., 21, 385, 386. Wells V. Sibley, 82. Wells V. Washington Market Co., 211. Welsch V. Jackson Co. Horse B. Oo.,462. Welsh V. Pullman Palace Car Co., 101. Welsh V. Bailroad Co., 123, 362, 353, 501. Welsh V. St. Louis, Ul. TABLE OF CITATIONS. 659 References are to Pages. Welsh V. Wilson, 189. Welter v. Dniik, 80. Wendell v. Baxter, 73. Wendell v. S. Y., etc., B. Co., 51, 493. Wendell v. Troy, 295. Wentworth v, Jefferson, 40, 480. Werle v. Liong Island S. Co., 52, 376. Werner r. Winterbottom, 129. Werth e. City ol Springfield, 302. Wescott V. Fargo, 346. Wesley Cit; Coal Co. v. Heder, 485. West V. Martin, 423,424. West V. The Berlin, 3S7. West V. Ward, 32. West Mabanoy v. Watson, 35, 50. Westaway v. Ffost, 430. WestbrooK v. Bailroad Co., 613, 516. Westerfleld r. Levis, 515. Western Bank «. Douglas Conrt of Sess., 327. Western Mfg. Co. e. The Gnldlng Star, 359. Western Transit Co. v. Hosklng, 346. Western, etc., B. Co. v. Bishop, 388. Western, etc. B. Co. v. Bloomlngdale, 463. Western, etc., B. Co. r. Carter, 122. Western, etc.,R. Co. v. Harmell, 345,361. Western, etc., B. Co. v. Stanley, 4D1. Western, etc., B. Co. v. Strong, ess. Western, etc, B. Co. v. Wilson, 53. Western, etc., B. Co. v. Toong, 620. Western Vnlon TeL Co. v. Blancbard, 692,594. Western Union Tel. Co. v. Fenton, 594. Western Union TeL Co. v. Griswold, 24. Western Union Tel. Co. v. Hyer,693, 594. Western Union Tel. Go. v. Wilson, 693. Weston V. Elevated B. Co., 395. Weston r. Grand Tmnk, etc., B. Co., 358. Wetherbee v. Fltcb, 437. Weymlro v. Wolf, 41, 42. Weymouth v. City of Kew Orleans, 301, Whaite v. Lancaster and Yorks, 336. Whalen v. St. Louis, etc, B. Co., 461. Whaley v. BarUett, 471. Whabtoh on Agknct, 29, 434. WHASTOir ON NB6LI6SNCE, 21, 22, 24, 62, 68, 79, 84, 202, 216, 255, 265, 268, 269, S73, 274, 276, 284, 292, 293, 296. 313, 327, 336, 338, 340, 412, 413, 421, 422, 429, 441, ^3, 451, 4S7, 460, 462, 463, 467, 474, 517, Wheelan v. Chicago, etc. By. Co., 551. Wheeler o. Sawyer, 424. Wheeler v. Townsend, 590. Wheeler v. Westport, 142. Wbeelock v. Wheelwright, 211. Wheelwright v. Boston, etc, E. Co., 498. Whelan v. Georgia, etc, B. Co., 379. Whelan v. New York, etc, B. Co., 509, 601. Whipple e. Fatrhaven, 321. Whipple V. Whitman, 437. Whirley r. Whitman, 78, 491, 615. White V. Atlantic Con. St. B. Co., 376. White r. Bond, 135. White V. Boston & A. B. Co., 527. White V. Boulton, 367. White r. Chicago, etc.. By. Co., 86. White V. Cincinnati, etc, B. Co., 485. White V. Com'ra of Chowan, 145. White V. Concord B. Co., 119, 121. White V. Dresser, 603. White V. Fort, 548. White V. France, 79, 281. White V. G. W. By. Co.,345. White V. Hindley Local Board, 299. White V. Lang, 481. White V. Missouri Pacific B. Co., 87. White V. Montgomery, 108. White V. Phillips, 70. White V. Pfallllpston, 135. White V. Quincy, 143. White V. Spettlgue, 560. White V. W. U. Tel. Co., 693. Whltaker v. Balmforth, 229. Whltefleld v. Despenser, 225, 446. Whitehead v. St. Louis, etc.. By. Co., 383,518. Whitehead v. Whitehead, 258. Wbitehonse v. Birmingham Canal Co., 92. Whltehonae v. Fellowes, 140, 299. Whltely V. Pepper, 140. Whitemore v. Harldson, 413. Whitfield V. Meridian, 319. Whitfield V. Town of Carrollton, 300. Whltford V. Panama By. Co., 662. Whiting V. Chicago, 59. Whitney v. Lowell, 3ia Whitney r. Martine, 264, 429. Whitney v. Nat. Bank, 59. Whitney v. Smith, 264. Whlton V. Chicago, etc, B. Co., 540. Whittaker v. Ci% of Helena, 608. Wbittaker v. Coilins, 426. Whlttemore v. Tbomas, 125. Whlttier v. C. M. & St. P. B. Co., 528. White Sewing Mach. Co. v. Bichter, 34, 506. Wichtrecht v. Fassnacht, 212. Wichita Val. By. Co. v. Swenson, 360. Wichita &W.R. Co. v. Davis, 465, 601. Wlckware v. Bryan, 451. Wiedmer t>. New York EL B. Co., 631. Wier's Appeal, 9. Wigmore v. Jay, 537. Wilbur e. Hubbard, 133. Wilbyr. Midland By. Co.,39L Wilcox V. Btcbmond & D. B. Co., 597. WUder v. Maine, etc., B. Co., 110, 112, 119. Wilder V. Stanley, 38. Wilds V. Brunswick & W. B. Co., 604. Wilds V. Hudson Biver B. Co., 460, 499, 618. Wiley r. Brattleboro Bank, 440. Wiley t>. Long Island B. Co., 613. Wilkerson«. Corrlgan C. St. By. Co., 627. WilUns V. Day, 137. Wilkinson v. Drew, 589. WUkinson v. Falrle, 74, 389, 488. Wilkinson r. Holloway, 433. Willard o. Goodrich, 436. Willard v. Siegel Gas Fixture Co., 437. Willard V. Swxnson, 464. Williams v. Bridges, 450. Williams ti. Bruce, 490. Williams v. Camden & W. Co., 97. WUliams V. Chicago, etc., B. Co. ,501. Williams v. Carrie, 587. Williams V. Edmunds, 40. WIIJ.IA3I8 ON EXECUTOBS, 254. Williams V. Fresno, C. & L Co., 224. Williams v. Gesse, 411. Williams V. Gibbs, 438. Williams V. Grant, 337. Williams v. Grealy,64. 660 TABLB OF CITATIONS. Beterences are to Pages. Williams V. G. W. By. Co., 30, 295. Willianis v. 6ron(sott,66. Williams v. Hay, 6. WllllamB V. Island CII7M. AM. Co., 692. Williams V. Jones, 200. Williams v. LeBar, 423. Williams «.i Loaisvllle L S. of Befoim, 208. Williams V. McEay, 324. Williams V. Moran, 126, 128. Williams v. M:o8tyn,449, 453. Williams V. Beynolds, 356. Williams v. Richards, 63. Williams v. Bose, 449. Williams v. Stillvrell 146. Williams v. Texas, etc., B. Co., 618. Williams V. Yanderbilt, 42. Williamson v. Oleaon, 94. Willington V. Gregson, 138. Willis V. Grand Trank B. Co., 344. Willis V. Long Island, etc., B. Co., 376, 378. Willis o. Lynn, etc., B.Oo.,377. Willis ». Mo. P. B. Co., 565, Wlllmott t). Ooriigan Con. St. By. Co., 377. Willock ». Pennsylvania B. Co., 346. Willongliby v. Hortidge, 281, 392. Wills V. Lynn & Boston B. Co., 62. Wilms V. Jens, 9, 10. Wilson V. B. & O. By. Co., 407. Wilson V. City of Troy, 301. Wilson V. City of Wheeling, 141, 143,218. Wil80a V. Halifax, 295. Wilson V. Hamilton, 351. Wilson V. Howard, 428. Wilson V. Jefferson, 145. Wilson V. London, etc., Co., 334, 356. Wilson V. Lord Bnry, 256, 324, 325. Wilson V. New Bedford, 97, 275. Wilson V. Newberry, 92. Wilson V. New York Central, etc., E. Co., 345, 352. Wilson V. Northern Pac. B. Co., 39, 380, 484, 485, 486. Wilson V. Peto, 253. Wilson V. Bass, 427. Wilson V. Sasqaehanna Tp. Co., 485. Wilson v. Town of Spafford, 112. Wilson V. Town of Granby, 146. Wilson V. Tucker, 438. Wilson V. Waddell, 70, 100. Wilson!!. Wadleigh, 435. Wilson V. Wheeling, 689. Wilson V. Williams, 453. Wilton V. Middlesex E. Co., 384. Wiltse». State Board Bridge Co., 202. Wiltse ». Town of Tilden, 137. Winch V. Conservators of Thames, 299. Wind V. Fifth Nat. Bank, 442. Wineate v. Mechanics' Bank, 452. Winn V. Abeles, 6, 10. Winn V. Lowell, 608. Winn V. Bntland, 304. Winne v. Illinois Central R. Co., 359. WInnegar v. Central Passenger By. Co., 206. Winner v. Lattarop, 426. Winnt V. International & G. N. B. Co., 540. Winship v. Enfleld, 143, 474; Winterbottom v. Lord Derby, 73, 184. Winterbottom i>. Wright, 11, 18. Winters v. Hannibal B. Co., 53. Winters v. Kansas City Cable By. Co., 515. Wise V. Jefferls, 454. Wiseman v. Booker, 110. Wisner v. Barber, 592. Wltham V. Portland, 307. Withers v. Nbrth Kent By. Co., 29, 390. Wohlfahrtv. Beckert, 13, 286. Wolf V. Kllpatrick, 82, 103, 106, 223, 310. Wolf V. Summers. 362. Wolf o. W. U. TeL Co.. 694. Wolff Mfg. Co. V. Wilson, 487, 603. Womack v. Cential B. & B. Co., 550. Wood V. Devins, 364. Wood V. Flnnls, 462. Wood V. Indian School District, 216. Wood V. Kansas City B. Co., 121. Wood V. Lake Shore, etc., B. Co., 381. WOOD ON MASTEB & SEBYANT, 212. Wood V. McOlare, 265. Wood V. Hears, 138, 141. Wood as Bailwats, 336, 358, 363, 364, 374, 391, 651. Wood V. Bemick, 60. Wood V. Tipton Co., 145. Wood v. Wand, 96. Wood V. Wood, 430. Wood River Bank v. First Nat. Bank, 441. 444. Woo Dan v. Seattle E. By. & P. Co., 376. Woodard v. City of Boscobel, 319, 599. Wooden v. Western N. T., etc., B. Co., 555. Woodgate v. Knatcbbnll, 452. Woodger v. Gt. W. By. Co., 357. Woodman v. Hnbbard, 211. Woodman v. Metropolltau B. Co., 223, 630. Woodman v. Nothlngham, 143. Woodman v. Pitman, .479. Woodman v. Tofts, 106. Woodruff V. Bowen, 77. Woodruff 1}. Painter, 60. Woods V. Devins, 363. Woods V. Nanmkeag Steam Cotton Co., 106. Woodward v. Aborn, 48, 92. Woodward v. Michigan, etc., B. Co., 555. Woodward Iron Co. v. Jones, 494. Woolwlne v. Chesapeake & O. B. Co., 76. Woodworth v. Morse, 411, 412. Woolery v. LonleviUe, etc.. By. Co., 486. Woolt V. Chalker, 125, 128, 131, 282. Woolfolk V. Macon, etc., B. Co., 121, Woolsey*. Chicago, B. & B. B. Co., 388. Wooten V. Dawklns, 80. Woram v. Hoble, 105. Worden v. Humeston & S. B. Co., 550. Workman v. Great Northern By. Co., 28, 43, 587, 591, 599. Wormley e. Gregg, 127, 282. Wormley «. Wormley, 264. Worthen v. Love, 126. Worthlngtonv. Wade, 288. Wright V. Chicago & N. W. By. Co., 49. Wright «. Daily, 433. Wright II. Illinois, etc.. Telegraph Co., 491. Wright V. Londotf N. W. By. Co., 281. Wright V. London Omnibus Co., 213, 6S8. Wright V. Midland By. Co., 371, 382, 625. Wright V. Pearson, 132. Wright V. St. Cloud, 316. ' Wrights. Syracuse, etc.,B. Co., 97. TABLE OP CITATIONS. 661 Beferences ore to Pages. Wiiglit o. Wbeeler, 452. WTatt «. Gitlsens, etc, B Co.. 54. Wy»tti;.G.W.Ey.Co.,481,497. • Wyld e. BicMord. 336. Wylie V. Birch, 463, 454. Wyllle V. Balmer, 214. Wyman v. Jones, !5S. Wyman v. lieaTltt, 603. Wymani v. Penobscot, etc, B. Co., 373. Wymore «. Habaska Uonnty, 515. Vynn v. City & S. By. Co., 520. Wynne v. Fialrie, 430. Tale Gas Stone Go. r. Wilcox, 333. Yancy v. Wabaali, etc.. By. Co., 602. Tamall v. St. Xoals, etc, B. Co.. 61, 503. Taniell v. Kansas City, etc, B. Co., 529. Tarsborongh v. Bank of Bngland, 293. Tates r. LaDSing. 449, 451. Tatesv.Wbyte,588. Tearance v. Salt Lake City, 306. Team v. WilUams, 50. Teomans v. Contra Costa, etc, Nav. Co., 385. Toakom v. Dnnn, 590, 597. Tordy «. Marsball Oonnty, 146. Tork «. Maine O. B. Co., 61. Toude t>. Glond, 257. Tonng V. Bankier D. Co., 96. Tonng V. Charleston, 137. Toong V. City ot Kansas, 301, 304. Tonng V. Connelly, 452. Tonng V. Davis, 134. Tonng e..6rote, 441. Tonng V. Harvey, 66, 82. Tonng V. Pennsylvania B. Co., 206. Tonng V. Uason, 436, 492. Tonng V. New Haven, 142. , Tonng V. WatervUle, 306. Tonng V. W. D. TeL Co., 594. Zelgler «. Com., 453. Zemp V. Wilmington, etc., B,. Co., 377. Zettler v. Atlanta, 316. Zimmerman v. Hannibal, etc., B. Co.,502. Zlmmers v. New Tork, etc, B. Co., 362. Zinc V. Franlinlte Co., 9. Zoeblsch V. Tarbell, 76, 279. Zopfi V. Postal T. C. Co., 36. Zoash V, Chesapeake & O. By. Co., 355. INDEX. Beferences are to Pages. ABATEMENT. Of action for injury cansing death by death of wrong-doer, 517. ACCIDENT. Mnst be connected with defendant, 624. Ses ipsa Zoguiiur, 522-534. Cases resting in contract and those not resting in contract, 526-533 (Ed. n.). Happening of accident prima facie evidence of negligence, 626, 527 (Ed. n.). When no contract relation exists, 529,(Ed. n.), 533 (Ed. n.). ACT. See Statdtb. Employers' Liability Act, 226, 243 (Ed. n.). Bailway and Canal Traffic Act, 349-351. ACTION. For injuries causing death, 535. See INJUBIBS Causing Dkath. For loss of snpport, 538, 541 (Ed. n.}. ACT OF GOD. Defense for injury, i8. Common carrier not liable for, 333, 336 (Ed. n.). Goods to be transported by carrier delayed through its negligence, and afterwards destroyed by extraordinary flood, 47 (Ed. n.). Property exposed to flood by wrongful act concurrent in point of time, 48 (Ed. n.). Unforeseen cause combining with defendant's unlawful act in pro- ducing injury, 41 (Ed. n.). ADMIBALTY. Bule of damages in case of collision between ships, 490. AGENT. Attorney and solicitor liable for negligence of, 429, 433 (Ed. n.)< Patent agent liable for negligence, 440. (663) 664 INDEX. References are to Pages. AGGBAVATIOIf. Of injury by reason of tendency to disease, no defense, 43 (Ed. n,). Unskillful treatment of physician or surgeon, 39 (Ed. n.). Flainti&'s act aggravating damages, 490, 491 (Ed. n.), 498 (Ed. n.). Defendant liable for whole damage unless plaintiff's negligence is separable, 491, 492. ALABAltA. Employer's liability statutes, 243 (Ed. n.). Comparative negligence denied in, 463 (Ed. n.). Action for injuries causing death, 637 (Ed. n.), 656 (Ed. n.). Burden of proof on defendant to establish plaintiff's contributory negligence, 470 (Ed. n.}. Negligence of parent not imputable to child, 517 (Ed. n.). Negligence per se, 49. Common carrier may limit liability, 344 (Ed. n.). ALIGHTING FEOM MOVING TRAIN, 54 (Ed. n.), 378 (Ed. n.). When train overshoots station, 54 (Ed. n.), 380 (Ed. n.). Jumping from train to save others distress on account of absence, 54 (Ed. n.). Jumping from street car, 54 (Ed. n.). Alighting on wrong side oftrack, 54 (Ed, n.J. Or at a place not designed for passengers, 56 (Ed. n.). When passenger alights to avoid being carried past his station, 379 (Ed. n.), 399. When act is done under suggestions or instructions of company's servants, 379 (Ed. n.), 380 (Ed. n.}. Alighting in spite of warning, 381 (Ed. n.). On a dark night and against. the advice of conductor, 881 (Ed. n.) On a dark night by express' invitation, 399 n. When train stops at a water tank or place other than station, 381 (Ed. n.). Passenger not jdstifie'd in iilighting at calUng out of station, 381 (Ed. n;), 399. ANIMALS. Neglect of duties by owners of, 123, 282-285. Keeping animal after knowledge ot its mischievous disposition, 123. Owner must prevent animal from trespassing, 124. Whether he is liable for trespasses by dogs, cats, fowls, etc., qucere, 124. Degree of care to be exercised in keeping wild animals, 126, 282. Animals mansuetce naturce — owner liable after notice of mischievous disposition, 126 (Ed. n.). Notice must be averred and proved, 127 (Ed. n,), 128. DTDEX. 665 Beferences ore to Pag«s. AlflMALS — Continued. Knowledge of agent of Ticloos habits of dog is knowledge of prin- cipal, 127 (Ed. n.). Notice of mischievous habits on a single occasion snfflcient to charge owner, 127 (Ed. n.). — Dogs — One may keep a dog which he knows to be savage, to defend his hoose — and is only liable tor negligence in keeping him, 131. Proof of scienter, 131 (Ed. n.), 132. Killing, injuring or worrying sheep, 132 (Ed. n.). Infectious animals — Mere keeping of not negligence per se, 130. Infections animals trespassing on lands of another, 130 (Ed. a.). — Contribatory negligence, 181 (Ed. n.). On the part of a child do defense, 129 (Ed. n.). One irritatiDg dog and is bitten in consequence can not recover, 129 (Ed. n.). Permitting mare to pasture in field with bull, 128 (Ed. n.). Omission to repair fence whereby bull escaped into pasture, 128 (Ed. n.). That person injured is a trespasser no defense where negligence is shown, 128 (Ed. n.). Ox driven tlirongh streets, 285. Tethering vicious bnll on land over which public is accustomed to pass, 128 (Ed. n.). Where animals are infected with disease by other animals, that owner did not apply the proper remedy no defense, 130, 131 (Ed.n). — Damages — For killing or wounding sheep, 132 (Ed. n.). Scienter — Proof of, 132, 284. In respect to bulls, rams, monkeys, 284, 285. Whether action can be brought against all of the owners of several dogswho at onetime kill and wound sheep, 133. APPORTIONMENT OF DAMAGES. Damages caused by the negligence of defendant and increased through the negligence of plaintiff, 91 (Ed. n.). Becoverable up to the time when contributory negligence began to affect the result, 91 (Ed. n.}. When the negligence of plaintiff is capable of a distinct separation from that of defendant, 42, 43, 491, 492. ARIZONA. Comparative negligence denied in, 463 (Ed. n.). Action for injuries causing death, 656 (Ed. n.). Burden of proof on defendant to establish plaintiffs contribntory negligence, 470 (Ed. n.). 666 INDEX. References are to Pages. ARKANSAS. Comparative negligence denied in, 463 (Ed. n.). Burden Is on defendant to prove plaintiff's contributory negligence, 470 (Ed. n.). Action for injuries causing death, 537 (Ed. n.^, 657 (Ed. n.). Common carriers may limit liability, 344 (Ed. n.). ABM. Projecting from car window, 62 (Ed. n.), 378 (Ed. n.). Jolting of car throwing arm out of window, 63 (Ed. n.), 378 (Ed. n.>. ARMY. Officers of, not liable for negligence of subordinates, 460 (Ed. n.}. ASSAULT, , Committed upon passengers by railroad employes, 206 (Ed. n.), 207 (Ed. n.). By strangers, 207 (Ed. n.). Charitable corporation not liable for assault committed by one of its officers on inmate, 208 (Ed. n.) ATTORNEYS. Neglect of duties by, 427. Liable for negligehce of agents, 429, 433 (Ed. n.). Clerks, 429, 433 (Ed. n.). Partners, 429, 431 (Ed. n.), 433 (Ed. n.). Not liable for negligence of associate counsel, 433 (Ed. n.). Liable though services are rendered gratuitously, 431, 433. Acting without authority, 429 (Ed. n.), 430 n. Liable for ordinary neglect, 428 (Ed. nO> 429 (Ed. n.). Do not guarantee success of case, 428 (Ed. n.). Not liable for errors of opinion on doubtful points of law, 428 (Ed. n.). Not liable to third persons for negligence in examining titles, 12 (Ed. n.), 430 (Ed. n.). Not bound to move for a new trial on point of law, 434 n. Liable for delaying to commence suit untU claim is barred by statute of limitations, 429 (Ed. n.). Failing to record mortgages, 429 (Ed. n.). Delaying filing of pleadings, 429 (Ed. n.). Loaning money on wortliless securities, 429 (Ed. n.). Omitting to insert in writ full amount of client's claim, 429 (Ed. n.). Disobeying client's instructions, 429 (Ed. n.). Failing to exercise care In examination of titles, 429 (Ed. n.). Prosecuting an action too soon, 430 (Ed. n.). Delaying bringing a,n action until it is too late, 430 (Ed. n.). Neglecting to attend to trial and plead defense, 430 (Ed. n.). INDEX. 667 References are to Pages. ATTOENEYS — Continued. "Omission of attorney and personal inattention of suitor,'* 480 (Ed. n.). Neglect of attorney, neglect of client, 430 (Ed. n.). Improperly dismissing suit, 430 (Ed. n.). Neglecting to enter up judgment, 431 (Ed. n.). Entering satisfaction of judgment without full payment, 431 (Ed. n.) . Suffering judgment to go by default, 431 (Ed. n.) . Delaying delivery of execution to o£Bcers, 431. (Ed. n.). Not seasonably suing out scire facias against bail, 431 (Ed. n.). Not giving notice of insufficiency of bail, 431 (Ed. n.}. Dissolution of firm will not release from liability, 433 (Ed. n.). Though negligence occurs after dissolution, 432 (Ed. n.). — Money collected — not liable for until demand and refusal to pay over, 432 (Ed. n.). When demand is dispensed with, 432 (Ed. n.). Action for fees, 432 (Ed. n.). Cannot recover for services which through neglect prove of no value, 432 (Ed. n.). Nor when they retain money until they are sued for it, 432 (Ed. n.}. Withdrawal from case on retainer of objectionable associate counsel, recovery pro tanto, 429 (Ed. n.). Power to receive money, 433 (Ed. n.), 435. May receive amount of judgment recovered by client and discharge it, 433 (Ed. n). Not authorized to receive anything but money, 433 (Ed. n.). May receive partial payments, 433 (Ed. n.), 435. May consent that judgment obtained by default by client may be vacated, 435 (Ed. n.). May sue out execution and cause defendant to be arrested, 435 (Ed. n.). Have no authority to discharge judgment except upon payment of amount in full, 436 (Ed. n.). No implied power to stay execution, 436 (Ed. n.). To employ assistant counsel, 434 (Ed. n.). Or substitute another in their place, 434 (Ed. n.). To release sureties of client's debtor, 436 (Ed. n.). Or property levied on under execution, 436 (Ed. n.). To discharge defendant from execution, 436 (Ed. n.). Without payment of debt in full, 436 (Ed. n.). Have no right to compromise suit, 434, 436, 436 (Ed. n.). Exceptions, 437 (Ed. n.). Have authority to submit cause to arbitration, 437 (Ed. n.), 384 (Ed. n.). Services at an end when judgment is recovered, 434. 1 668 INDEX. Beferences are to Pages. ATTORNEYS — Continued. When judgment is satisfied, 434 (Ed. n.). When services do not terminate with conclusion of case in lower court, 435 (Ed. n.). Terminated by death of client, 436 (Ed. n.}. ' AWNINGS. Municipal corporation liable for Injnries caused by fall of, 305 (Ed. n.). Owner liable, 305 (Ed. n.). BAGGAGE. See Bailwat CouFAmBS, 361, 363 (Ed. n.). BAILMENT. Bailee for hire, 57, 68 (Ed. n.). Use of thing bailed, 57, 68 (Ed. n.). BANKERS. Neglect of duties by, 440, 442 (Ed. n.). Must exercise more than ordinary care, 441, 442 (Ed. n.). As gratuitous depositaries liable for gross negligence, 440 n,, 456. Negligently refusing to cash check, 441. Faying forged checks, 441, 442 (Ed. n.}. Liability of bank sending paper to another bank tor collection, 443 (Ed. n.). For negligence of notary, 443 (Ed. n.), 444 (Ed. n.). Contributory negligence, 441, 442 (Ed. n.). Duty of depositor to examine pass-book and report errors, 441 (Ed. n.). Discounting bills, 442. Disclosing state of customer's account, 444. BLASTING. Liability of municipal corporation for injury by blasting in streets, 305 (Ed. n.). BLINDNESS. No excuse for contribntoiy negligence, 603 (Ed. n.). BOARDING-HOUSE KEEPERS. . Not held to same degree of care as innkeepers, 418 (Ed. n.) . BOARDING MOVING TRAIN. Negligence per se, 53 (Ed. n.), 375 (Ed. n,). Getting on by invitation of brakeman, 53 (Ed. n.). By permission of engineer, 63 (Ed. n.). Where train was moving slowly and did not stop at station, 376 (Ed. n.). INDEX. 669 Beferences are to Pages. BOARDING MOVING TRAIN — Continued. Or passenger was directed by passenger's servants to make the attempt, 376 (Ed. n.). Whether train stopped long enough for passenger to get on may affect the qnestion, 376 (Ed. n.). BREACH OF DUTY. Liability of vendor for injury to third parly for breach of, 11, 12 (Ed. n.). Selling gun which vendor knew to be dangerons, 11. Selling pernicious hair dye to man, vendor knowing his wife would use it, 11. Selling dangerous goods, 13 (Ed. n.). Where a workman in the employ of a ship painter was Injured by the fall of a defective staging supplied by a dock owner, under a con- tract with the ship owner, the dock owner was held liable, 12, li. BRIDGE. Bridge should be kept in suitable repair, 118, 144 (Ed. n.). Must be constructed so as to resist floods, 144. Provided with suitable railings, 143. Railway bridges over highways, 143. Draw bridges should be properly constructed, 143. Municipal corporations liable for injuries caused by defects in bridges within their limits, 144 (Ed. n.). Though in process of repair by independent contractor, 144 (Ed. n.). City not bound to erect barriers or station watchmen for protection of young children playing about swing bridges, 146 (Ed. n.) . Counties not bound to repair bridges in the absence of statute, 145 (Ed. n.),. 146 (Ed. n.). This duty is imposed in some States upon counties, in others upon townships, 145 (Ed. n.). Ordinary care required of counties in the construction and repair of bridges, 146 (Ed. n.). A town is not bound to keep its bridges absolutely safe against extraordinary loads, 146 (Ed. n.). Knowledge of unsafe condition, 146 (Ed. n.). Walking on side having no barrier, 147 (Ed, n.). Walking on bridge so defective as to be practically Impassable, 147, (Ed. n.). Recklessly driving over, 147 (Ed. n.). BRIDGE CONTRACTOR. Not liable for injuries to third person by defective construction of bridge, 13 (Ed. n.) BROKER. Neglect of duties by stock broker, 444. 670 INDEX. Beference9 are to Pages. BUILDING. Right to support of, 5, 6, 65, 70 (Ed. n.). See Support. BUEDEN OP PROOF. In action for damages by railway flres, 87 (Ed. n.). Burden of proving negligence — Plaintiff must show negligence on the part of the defendant and that he was in the exercise of due care himself the rule in, 472 (Ed.n.). In Indiana, 472 (Ed. n.). In Iowa, 472 (Ed.n.). In Louisiana, 472 (Ed. n.). In Maine, 472 (Ed. n.). In Massachusetts, 472 (Ed. n.). In Michigan, 472 (Ed. n.). In Mississippi, 473 (Ed. n.). In North Carolina, 473 (Ed. n.).' In Oregon, 473 (Ed. n.). The burden of proof is on the defendant to establish plaintiff's con- tributory negligence the- rule in the United ^tates Supreme Court, 470 (Ed. n.). In Alabama, 470 (Ed. n.). In Arizona, 470 (Ed. n.}. In California, 470 (Ed. n.). In Colorado, 470 (Ed. n.). In Dakota, 470 (Ed. n.). In District of Columbia, 470 (Ed. n.). In Georgia, 470 (Ed. n.). In Kansas, 471 (Ed. n.). In Kentucky, 471 (Ed. n.). In Maryland, 471 (Ed. n.). In Minnesota, 471 (Ed. n.}. In Missouri, 471 (Ed. n.). In Montana, 471 (Ed. n.). In Nebraska, 471 (Ed. n.). In New Hampshire, 471 (Ed. n.). In New Jersey, 471 (Ed, n.). In Rhode Island, 471 (Ed. n.). In South Carolina, 471 (Ed. n.). In South Dakota, 471 (Ed. n.). In Texas, 471 (Ed. n.). In Virginia, 471 (Ed. n.). In Washington, 472 (Ed. n.). In West Virginia, 472 (Ed. n.). In Wisconsin, 472 (Ed. n.). In Federal Courts, 472 (Ed. n.). INDEX. 671 BeferenceB are to Pages. BUBDEN OF PROOF — Continued. In U. S. Supreme Court, 472 (Ed. n.). Rule in New Tork, 473 (Ed. n.). Rule now in Pennsylvania, 474 (Ed. n.). ' In Ohio, 474 (Ed. n.). Decisions both ways in Connecticut, Illinois and Vermont, 473, (Ed. n.), 474 (Ed. n.). When plaintiff's case raises an inference of contributory negligence, 474 (Ed. n.). When court may direct a non-suit, 474 (Ed. n.}. BURGLARS. One may protect his shop from, by setting up spring guns, 80 n. BUSINESS HOUSES AND GROUNDS. Degree of care to be exercised toward persons coming upon, 70, 72 (Ed. n.), 277. BUTTEBFIELD v. FORRESTER, 460 (Ed. n.), 476, 477. CALIFORNIA. Comparative negligence obtains in, 463 (Ed. n.).. Railway companies must provide safe road-be'd and machinery, 195 (Ed. n.). Actions for injuries causing death, 637 (Ed. n.), 658 (Ed. n.). Construction of statutes affecting employer and employe, 244 (Ed. n. ) . Burden of proof on defendant to establish plaintiff's contributory negligence, 470 (Ed. n.). Negligence of parent imputable to child, 617 (Ed. n.). CAMPBELL'S (LORD) ACT. See Injuribs Causing Death. CANAL COMPANY. Must see that its docks, etc., are properly constructed, 147. , Injuries to adjoining lands by overflow of canal; liability for negli~ gence, 147. Not bound to fence canal towing path, 148. CARE — DEGREE OF. See Ordinaky Care; More than Ordinary Care ; Less than Ordinary Cake. Due care, 48S (Ed. n.). CARRIAGE. See Railway Companies. CARRIAGE OF GOODS. See Railway Companies. CARRIERS. See Railway Companies, 333-388. See Stage Coach, 392. See Sleeping Car Company, 401 (Ed. n.)-411 (Ed. n.). 672 INDEX. Beferences are to Pages. CATTLE. See Stock, 104-109. See Animai^s, 110, 282. ' See Fence, 106-123. ' CATTLE GUARDS. Railway companies required by statute to construct at highway and farm crossings, 111 (Ed. n.), 115 (,Ed. n.). CHANGE OF GRADE. Consequential damages caused by, 301 (Ed. n.). CHILDREN. When trespassers, cannot recover, 76 (Ed. n.). Otherwise where the premises are attractive, 77 (Ed. n.). Rule of contributory negligence does not apply to children of tender years, 513. Imputed negligence — Negligence of parent permitting child to go upon highway unaccompanied, 614 (Ed. n.), 617 (Ed. n.^. Bars recovery in case of injury. In California, 614 (Ed. n,). In Indiana, 514 (Ed. u,). In Kansas, 514 (Ed. n.). In Maine, 614 (Ed. n.). In Maryland, 514 (Ed. n.). In Massachusetts, 514 (Ed, n.). In Minnesota, 6i4 (Ed. n.). In New York, 614 (Ed. n.). Does not bar a recovery In Alabama, 614 (Ed. n.).' In Arkansas, 614 (Ed. n.). In Connecticut, 514 (Ed. n.). In Georgia, 514 (Ed. n.). In Illinois, 614 (Ed. n.). In Iowa, 616 (Ed. n.). In Louisiana, 516 (Ed. n.). In Michigan, 616 (Ed. n.). In Mississippi, 515 (Ed. n.). In Missouri, 516 (Ed. n.). In Nebraska, 515 (Ed. n.) . In New Hampshire, 516 (Ed. n.). In New Jersey, 615 (Ed. n.). In North Carolina, 515 (Ed. n.). In Ohio, 516 (Ed. n.), In Pennsylvania, 616 (Ed. n,). In Tennessee, 615 (Ed. n.). In Texas, 615 (Ed. n.). INDEX. 673 Seferences are to Pages. CHILDREN — Continued. In Utah, 515 (E^. n.). In Vermont, 615 (Ed. n.). In Virginia, 515 (Ed. n.). . The leading case establishing the doctrine of imputed negligence, 515 (Ed. n.), 516 (Ed. n.). The leading case denying it, 616 (Ed. n.). Presence of parent or guardian contributing to injury, 517 (Ed. n.'). When action is brought by parent or for parent's benefit, 517 (Ed. n.J,518 (Ed. n.). Contribn&ry negligence by child in action by parent, 518 (Ed. nl). — Children Trespassing — Flaying with dangerous machinery, 518 ' (Ed. n.). Left exposed or unguarded, 518 (Ed. n.), 619 (Ed. n.). Injury by fall of boards in lumber yard, 519 (Ed. n.). By dynamite left exposed in shed, 619 (Ed. n.). Trespassing upon railroad property, 519 (Ed. n.). Flaying in street, 620 (Ed. n.), 621 (Ed. n.). CITY. See Municipal Cokporation, 141, 291, 301 (Ed. n.), 323. CLERKS. Of courts, liability for negligence, 462 (Ed. n.). Liable for negligence of deputies, 452 (Ed. n.). For failure to require security for costs, 462 (Ed. n.). For negligence to enter case on docket, 452 (Ed. n.). For negligence in entry and recording of bonds, 452 (Ed. n.). For accepting bond with insufficient sureties, 453 (Ed. n.;. COACH STAND. A nuisance, 138 (Ed. n.). COAL HOLES. Liability for injuries by, 82 (Ed. n.), 102 (Ed. n.), 309 (Ed. n.). COASTING-IN STREETS. Municipal corporation not liable for injuries by, 306 (Ed. n.; . Unless prohibited by ordinance, 306 (Ed. n.). COLLISION. Rule of damages in case of, between ships, 490. COLORADO. Actions for injuries causing death, 637 (Ed. n.;, 559 (Ed. n.). Burden of proof on defendant to establish plaintiff's contributory negligence, 470 (Ed. n.). Common carrier may limit liability, 344 (Ed, n.). CUMBUSTIBLE MATERIALS. iSee Firk. 43 674 INDEX. Beferences are to Pages. COMMON CAKEIEB. See Carkiers. COMMON EMPLOTMBNT. See Master and Servant, 198, 203. COMPANY, See Corporation;. Kailway Cohpany; Directors of Public Companies. COMPARATIVE NEGLIGENCE. American decisions, 463 C&A. n.). The argument against it, 467. See CoNTRiBUTORT Negligence. CONCURRENT NEGLIGENCE. When the negligence of A. and B, combined result in injury to C, the. concurrent negligence of B. will be no defense to an action against A., 83 (Ed. n.). C. may hold either or both liable, 33 (Ed. n.). CONDITION. In respect of the carriage of goods — Reasonable, 344, 348 (Ed. n.). Exemption from liability unless complaint of loss is made at once, 344. Erom liability from loss of market only, 344. From liability for everything except gross negligence, 345. From liability in respect of goods damaged beyond limit of com- pany's railway, 346, 347. From liability unless value of goods is declared, 347. Condition as to time and manner of presenting claims for damages, 347 (Ed. n.). Unless claim is made within ninety days from time of receipt of goods by carrier, 347 (Ed. n.), 348 (Ed. n.). Within thirty days, 348 (Ed. n.). Unless claim is presented in writing at office within thirty days after time property is delivered, 348 (Ed. n.). That claim for damage should be made before goods are removed from station, 348 (Ed. n.). That carrier shall have benefit of insurance on the damaged goods, 348 (Ed. n.). That carrier in whose possession goods are at time of loss shall alone be liable, 348 (Ed. n.). That carrier shall not be liable for loss by fire unless caused by its negligence, 348 (Ed. n.). That in case of loss, damage or non-delivery the ship-owner shall not be liable for more than invoice value of goods,' 348 (Ed. n.). That carrier shall not be liable beyond a certain amount unless true value stated, 348 (Ed. n.). — Unreasonable conditions, 847, 348 (Ed. n.). iXDEx. 675 Beferences are to Pages. CONDITION — Gontinuecl. Condition not to be liable for packages insufficiently packed, 317. Not to be liable for packages cliarged as empties, 347. At owner's risk, 347. Tlie company accepting -no responsibility, 347. That claim for loss must be made wlien goods are delivered, 348 (Ed. n.). Not to assume any liability above a certain amount, 349, 353. That passenger shall not take into state-room such baggage as he may require for personal use, 349 (Ed. n.). — Conditions afEectlng transportation of live stock, reasonable, 349, 351 (Ed. nO, 354 (Ed. n.). Kequiring demand for damages to be made -within five days after un- loading stock, 354 (Ed. n.). That claim for loss must be made before or at the time the stock is unloaded, 354 (Ed. n.)i.365 (Ed. n.). That company shall be released from liability for damages apart from running of trains, from overloading or heat, 354 (Ed. n.). Claim to be made in writing, sworn to and delivered to general freight agent within five days from unloading, 355 (Ed. n.'). That stock may be jettisoned for safety of ship, 355 (Ed. n.). Limiting liability for certain sum when loss is not caused by negligence, 355 (Ed. n.). That In consideration of free pass shipper assumes loss, except such as may be caused by collision, etc., 355 (Ed. n.). CONNECTICUT. Comparative negligence denied in, 463 (Ed. n.). Action for injuries causing death, 560 (Ed. n.). Railroad companies required by statute to fence tracks, 112 (Ed. n.). Eule as to burden of proof, 473 (Ed. n.). Negligence of parent not imputable to child, 614 (Ed. n.). Master must provide safe machinery, 195 (Ed. n.). CONSEQUENTIAL DAMAGES. For injuries to stock, 118 (Ed. n.'). For damage to property by change of grade of streets, 301 (Ed. n.). Liability of municipal corporation, 301 (Ed. n.). CONSTITUTIONAL LAW. Statutes authorizing double damages for killing stock by railroads, constitutional, 123 (Ed. n.;. Statutes providing for attorney's fees in such cases, 123 (Ed. n.). Statute excluding contributory negligence as a defense to action for damages to person or animal for want of fence, 120 (Ed. n.). Ordinances requiring ovraers to keep sidewalks clear of snow and ice, 310 (Ed. n.J. 676 INDEX. Beferences are to Pages. CONTRACT. Breach of contract and breach of duty toward third person, 10, 11. One committing a breach of contract is liable to those only with whom he has contracted, 11. As where a man negligently built a coach, 11. Negligently put up a chandelier, 11. Where attorneys' clerks and recorders negligently examine or pre- pare titles, 12 (Ed. n.). Where a bridge con|;ractor built a bridge under a contract with the County Board of Freeholders and a third person was injured by its fall, 13 (Ed. n.). Where one bought grain on the faith of the certificate of an inspector with whom the purchaser did ifot contract, 13 (Ed. n.). Where a water company contracted to supply a city with water, and in consequence of a breach the city was unable to extinguish a fire 13 (Ed. n.). In such cases there is no liability for injuries to third persons, 11-13. But where there is also a breach of duty — As where a man sold a gun which he knew to be dangerous to the father of a lad — knowing he would use it, 11. Where a man sold a pernicious hair dye to another — knowing his wife would use it, 11. Otherwise- where one sold poison for a harmless medicine, 11,- 13 (Ed. n.). , Or sold explosive oUs, 13 (Ed. n.), 287. So where a workman in the employ of a ship painter was injured by the fall of a defective staging supplied by a dock-owner under a contract with the ship-owner, the dock-owner was held liable, 14-19. Hallway passenger can elect to sue in contract or tort, 368. ' Whether master can sue when servant is injured, 368. Bes ipsa loquitur — cases resting in contract, 526 (Ed. n.). CONTEACTOE. Who is a " contractor," 220. Paid by job, 220. Liable to dismissal, 221. Interfering with work, 216 (Ed. n.). Reserving power to control, 221. Limiting control as to mode of doing work, 221. When owner not relieved of liability by placing work in hands of contractor, 8, 216 (Ed. n.), 220, 220 (Ed. n.), 224. When the work is itself a nuisance, 219 (Ed. n.). When the owner has a duty to perform, 220. Contractor placing work in hands of sub-contractor, 221 , 222 (Ed. n.). Rule of Bes ipsa loquitur does not apply to, 526, 533 (Ed. n.). INDEX. 677 Seferences are to Pages. CONTRACT OF RELEASE. Of common-law rights by servant with master, 166, 167. CONTRIBUTORY NEGLIGENCE. See Animals, 12« (Ed. n.). See Bankers, 440. See Children, 513. See FENcas, 119 (Ed. n.). See Fire, 89. See Innkeeper, 410. See Master and Servant, 164. See Physicians, 419. See Railway Fires, 85, 86 (Ed. n.). i^ee Sidewalks, 314 (Ed. n.). Definition, 459, 460 (Ed. n.). Proximate cause, 459, 461 (Ed. n.). Doctrines of Davies v. Mann and Bntterfield v. Forrester, 469 n., 460, (Ed. n.), 462 (Ed. n.). Defendant failing to exercise ordinary care after discovering plaintiff's negligence, 462 (Ed. n.). Trespassers npon railroad tracks injured by company's servants, 462 (Ed. n.). — Comparative negligence, 463 (Ed. n.). The role is approved in California, 463 (Ed. n.). Florida, 463 (Ed. n.). Georgia, 463 (,Ed. n.). Illinois, 464 (Ed. n.). Kansas, 464 (Ed. n.). Maryland, 465 (Ed. n.). Michigan, 465 (Ed. n.). Mississippi, 465 (Ed. n.). Nebraska, 465 (Ed. n.). United States Courts, 466 (Ed. n.). The rule is denied in most of the other States, 463 (Ed. n.), 466 (Ed. n.). Negligence of third party, proximate cause an excuse, 467-469. Burden of proof, 470 (Ed. n.). That plaintiff must show negligence op the part of defendant, and that he was in the exercise of due care himself, the rule, 472 (Ed. n.). In Indiana, 472 (Ed. n.}. In Iowa, 472 (Ed. n.). In Louisiana, 472 (Ed. n.). In Maine, 472 (Ed. n.). 678 INDEX. Seferences are to Pages. CONTRIBUTORY NEGLIGENCE — Continued. In Massachusetts, 472 (Ed. n.). In Michigan, 472 (Ed. n.). In Mississippi, 473 CEd. n.}. In North Carolina, 473 (Ed. n.). In Oregon, 473 (Ed. n.). That the burden of proof is on defendant to establish plaintifE's con- tributory negligence, 470 (Ed. n.>. The rule in the United States Courts, 472 (Ed. n.). In Alabama, 470 (Ed. n.). In Arizona, 470 (Ed. n.). In Arkansas, 470 (Ed. n.). In California, 470 (Ed. n.). In Colorado, 470 (Ed. n.). In Dakota, 470 (Ed. n.). In District of Columbia, 470 (Ed. n.). \ In Georgia, 470 (Ed. n.). In Kansas, 471 (Ed. n.). In Kentucky, 471 (Ed. n.). In Maryland, 471 (Ed. n.). In Minnesota, 471 (Ed. n.). In Missouri, 471 (Ed n.). In Montana, 471 (Ed. n.}. In Nebraska, 471 (Ed. n.). In New Hampshire, 471 (Ed. n.) In New Jersey, 471 (Ed. n.). In Rhode Island, 471 (Ed. n.). In South Carolina, 471 (Ed. n.). In South Dakota, 471 (Ed. n.). In Texas, 471 (Ed. n.). In Virginia, 471 (Ed. n.) In Washington, 472 (Ed. n.). In West Virginia, 472 (Ed. n.). In Wisconsin, 472 (Ed. n.). Decisions conflicting in Connecticut, 473 (Ed. n.). In Illinois, 473 (Ed. n.). In New York, 473 (Ed. n.). In Ohio, 473 (Ed. n.). In PennsylTania, 474 (Ed. n.). In Vermont, 474 (Ed. n.). Defendant doing an act, the consequences of which are beyond his control, 475, 476. Merely not anticipating defendant's negligence, 478. Presumption that defendant will act with ordinary care, 478. That plaintiff wUl do the same, 478. INDEX. 679 References are to Pages. CONTRIBUTORY NEGLIGENCE — Continued. Plaintiff negligently incnrring danger, 478, 479. — Doing illegal act, 479, 480 (Ed. n.). No defense nnless act was proximate cause of injury, 480 (Ed. n.), 482 (Ed. n.). Riding on wrong side of road, 480 (Ed. n.). Driving at speed forbidden by ordinance,. 480 (Ed. n.). Riding on Sunday in violation of law, 480 (Ed. n.). Laboring on Sunday, 481 (Ed. n.). The rnje in Massachusetts and some other 'New England States, 481 (iid. n.). Accidental injury in escaping from sudden pen! not contributory negligence, 482, 483 (Ed. n.), 484, 485 (Ed. n.}. Though the person would not have been injured had he not made the attempt to escape, 484, 486 (Ed. n.). One placing himself in position of danger to save the life of another, 483 (Ed. n.), 487 (Ed. n.). Question of contributory negligence not left to jury in all cases, 485, 487, 488 (Ed. n.), 489 (Ed. n.). Plaintiff's act aggravating damages, 491. Defendant liable for whole damage, 492. Except where plaintifi's negligence is separable, 492. The rule of damages in collision between ships, 490. Contributory negligence of patient, 492 (Ed. n.).^ A^ravation of disease by unskillful treatment, 493 (Ed. n.). — Master and servant — Servant remaining in master's service with knowledge of risk, 493-497. Promise by master to repair defect, 494 (Ed. n.). When employment is not hazardous and no great skill is required, 496 (Ed. n.). — Railway crossings— Duty of foot passengers to look and listen for approaching trains, SO (Ed. n.), 498. Bnty of drivers of vehicles, 499 (Ed. n.). Omission to ring bell or sound whistle, 501 (Ed. n.). Does not excuse traveler attempting to cross the track from looking and listening for trains, 501 (Ed. a.). Though they are running at a dangerous and unlawful rate of speed, 502 (Ed. n.). It is not material that one did not look or listen, if he could not have seen or heard the train, 502 (Ed. n.). It is no excuse that he was deaf, 502 (Ed. n.). Or blind, 502 (Ed. n.), 503 (Ed. n.). Or intoxicated, 503 (Ei. n.). Whether intoxication is contributory negligence for the jury, 503 (Ed. n.). 680 INDEX. References are to Pages. CONTRIBUTORY NEGLIGENCE — Continued. The rale is different in case of children of tender years and the old or infirm, 503 (Ed. n.). Towards them railroad companies mast exercise a greater degree of care, 503 (Ed. n.). Omission to give signals must be proximate cause of injury, 504 (Ed. n.). Invitation to cross, 605 (Ed. n.). Where crossing is' dangerous, 505 (Ed. n.). When view of tra6k is obstructed, 505 (Ed. n.). — Imputed negligence — The doctrine of Thorogood v. Bryan, 504- 506, 607 (Ed. n.). That the contributory negligence of a carrier or of the driver of a vehicle bars a recovery by the passenger, rejected in this country, 507 (Ed. n.). Recognized in some States, 507 (Ed. n.). The rale does not apply as between shipper of goods and carrier, 512 (Ed. n.). Between master and servant, 612 (Ed. n.}. Between husband and wife, 512 (Ed. n.). COKPORA.TIONS. iSee, also, Municipal Cokporation; Railway Com- pany, ETC. Highway repairable by, 133. To pursue best possible plan with respect to highway, 140. To select competent persons, 140. Liable for negligence of persons authorized by them, 140. Bound to use more than ordinary care, 140, 141, 145. Not performing statutory duties, 142, 148. Duties voluntarily undertaken, 149. Not answerable for want of administrative ordinances, 149. Notice of injury, i49, 153. Ultra vires, 160. Performing statutory duties, 291. Bound to use best skill, 292. No excuse, employed contractor, 292. Must be a default In duty, 293. Can be guilty of a tort, 293. Imperative or discretionary duties, 294-297. Corporatipn keeping streets in repair, 294. Keeping sewers open, 296, 304 (Ed. n.). Level crossings, 295. Fencing footpath, 296. Corporations taking toll, 299. Not liable for Inevitable injury, 299. INDEX. 681 Beterences are to Pages. ' CORPORATIONS — Continued. Liable, although no profit made, 299. Liable, if means of knowing of defect, 300, 317 (Ed. n.). No excuse that servants ordered to do a thing, 800. Or that contractor employed, 300. Accident or vtB mo^'or,, 300. For whose acts corporation liable, 301. Not liable for mere error of judgment of person employed by them, 301. Not liable for incidental negligence of contractor, 301, 309. Can recover against contractor, 814, 316, Plaintiff must show that statutory duty was for his benefit, 323. Penalty does not bar action, 323. CO-SERVANT. See Master and Sebvant. COSTS. Action for solicitor for, 438. COUNTIES. No common-law obligation resting on to repair highways, 184 (Ed. n.). No common-law obligation resting on to repair bridges, 145 (Ed. n.) . COUPLING CARS. Brakemen assume risk of injuries in, 161, 163 (Ed. n.), 165 (Ed. n.). . Loaded with projecting timbers, 172 (Ed. n.}. COURT AND JURY. See Law and Fact. Province of, 47, 49 (Ed. n.). COWS. See Animals. CRAWLING UNDER TRAIN. Negligence per se, 52 (Ed. n.). CROSSING. See Railwat Company and Contmbtttory Negligence. CROSS-WALK. See Sidewalk. 4 DAKOTA. Burden is on defendant to prove plaintiff's contributory negligence, 470 (Ed. n.). DAMAGES. Measure of, for removing lateral or subjacent support, 10 (Ed. n.). Measure of, for sherifC's negligence, 4S5 (Ed. n.). ActioA for injuries causing death, 535. Measure of when deceasedis the father of a family, £51 (Ed. n.). When deceased is a minor, 652 (Ed. n.). 682 , INDEX. Seferences are to Pages. DAMAGES — Continued. Damages for injury to personal estate, 54:7. Damages for mental suffering, 542, 596 (Ed. n.). For loss of society, 642, 561 (Ed. n.). , Exemplary or vindictive damages, 644 (Ed, n,), 687. Funeral expenses and expenses of last sickness, 546. How far damages may be estimated by annuity tables, 545. Mitigation of, 687 (Ed. n.), 588. Damages for injuries to property, 588, 55?1. For destruction of chattel, 590 (Ed. n.). For personal Injuries, 596-604. For negligence in performance of contract, 591, 592 (Ed. n.). For negligence In transmitting telegram, 692, 593 (Ed. n.). Prospective damages, 593. Defendant only responsible for what might reasonably happen, 594, 697. Admissible evidence, 698 (Ed. n.). Recovery of insurance money set up in mitigation of, 588. — Stock — For killing stock of railroad company, 132 (Ed.). For injury to stock, 122 (Ed. n.). Exemplary damages not allowed unless injury is willfuUy inflicted, 122 (Ed. n.). "^Statutes authorizing double damages, 123 (Ed. n.}. Attorney's fees in addition to damages, 123 (Ed. n.). See Railway Companies, Joint Tort-Fbasoks. DANGEROUS THINGS. Neglect of duties by owners of, 17, 282, 286, 288. Liability to third party for injury by sale of, 11, 13 (Ed. n.), 286, (Ed. n.). Gnut 11, 286. Fire works, 286. Poisonous drugs, Ijl (Ed. n.), 287. Poisonous tree, 91. Oil, 13 (Ed. n.), 287 (Ed. n.). Defective boiler, 288 (Ed. n.). Barrel of fish brine in street, 288 (Ed. n.). Selling pistol cartridges to minors, 38 (Ed. n.y. Shipping dangerous goods, 287 (Ed. n.), DANGEROUS WALLS. Brick wall, fall of, 189 (Ed. oij. DEATH. Action for injuries causing, 226, 243 (Ed. n.), 430. Whether death is instantaneous or not, 557-568. INDEX. 683 References are to Pages. DEFECT. Railroad companies not liable for latent defects in cars, 374. Under Employer's Liability Act, 228. DEFECT IN HIGHWAY. See Highway. DEFECTIVE MACHINERY, See Master and Servant. DEFENSE. Aggravation of Injury by reason of tendency to disease no defense, 43 (Ed. n.). Incases^of railway fires, 91 (Ed. n.). DEFINITION OF NEGLIGENCE. DEGREES OF CARE. See Okdinart Care, More than Ordinary Care; Less than Ordinary Care. DEGREES OF NEGLIGENCE. " Slight," " ordinary," and "gross," 21. Sort and amowU of care, distinguished, 28, 24. Tendency in America to reject the distinction as to degrees of, 24 (Ed. n.>. DELAY, Damages for, caused by strikes and riots, 366 (Ed. n.). DELAWARE, Master must fnmlsh safe appliances, 195 (Ed. n.). Action for Injuries causing death, 661 (Ed. n.). DELIVERY. After delivery at destination carrier pliable for negligence, 366 (Ed. n.). Under s. 7 of Railway Act, 362. DEPOSIT. With bankers, 441 (Ed. n,). Gratuitous, 456. DILIGENCE. See Sku-l; More than Ordinary Care. DIRECTORS OF PUBLIC COMPANIES. Neglect of duties by, 323. Are agents and trustees of company, 324 (Ed, n.), 326. Trustees for its ci:editors, 324 (Ed. n,). Liability to strangers, 325, Liability for fraudulent representations including the purchase of shares, 324 (Ed. n.). Statutory liability, 324 (Ed, n.). Liability for negligence, 325, 326 (Ed. n,), 327. Liability of company to liquidator, 327. 684 INDEX. Beferences are to Pages, DIEECTOBS OF PUBLIC COMPANIES — ConUnued. Liability for acts of co-directors, 328 (Ed. n.) ; 329-331. Sliareholder suing them for damages, 332 Misapplication of money by, 332. Omission to register shares, 333. Liability of promoters, 333 DISCEETIONAET DUTIES. Municipal corporation not liable for injuries sustained by reason of omission to exercise, 149, 294. DISEASE. Tendency to, aggravation of injury by reason of, no defense, 43 (Ed. n.), 493 (Ed. n.). Proximate result of negligence, 43 (Ed. n.). Aggravation of, by unskillful treatment, no defense, 493 (Ed. n.) . DISEASED ANIMALS. Keeping of, not negligence per se, 130. Trespassing on lands of another, 130 (Ed. n.) . Where animals are infected with disease by other animals that owner did not apply proper remedy, no defense, 131 (Ed. n.). DISTRIBUTION. Of damages in actions for injuries causing death, 547, 656 (Ed. n.), et seq. DISTRICT OF COLUMBIA. Burden is on defendant to prove plaintiff's contributory negligence, 470 (Ed. n.). DOCTORS. See Physicians autd SuRaBONS. DOG. See Animal. DOOE. Of railway carriage opening and ^hutting, 399, 400. DOUBLE DAMAGES. Statutes giving double damages for killing stock, 123 (Ed. n.). For injuries by dogs to stock, 132 (Ed. n.). DRAINS. See Sbwbrs, 304 (Ed. n.). DEAW-BEIDGES. Should be properly constructed, 143. DRIVING. See Law of the Road. DRUG. Selling poisonous, 11, 287. INDEX. 685 Seferences are to Pages. DRUNKENNESS. Contributory negligence, 503 (Ed. n.). Proximate cause of death, 30, 31 (Ed. n.)- DUE CARE. Wliat is, 483 (Ed. n.). DUTY. See, also. Breach of Duty and Contract. Breach of — One committing a breach of duty is liable for injuries to third persons, 10, 12 (Ed. n.). Duty may arise out of contract, 2. Discretionary duties of corporations, 293, 302 (Ed. n.). EMPLOYERS' LIABILITY ACT, 225-261. Contracting out of the act, 225, 226, Effect of the act, 226. Who are " workmen," 227-230. " Defect," 228, 229, 230. " Superintendence," 232. " Machinery," 232. " Manual labor," 232. Conforming to orders, 233. Rules, 233. Person having charge of train, 231. Contributory negligence, 235. s. 2 (exceptions), 235. S. 8 (amount recoverable), 236. Notice of injury, 237-240. 8. 5 (deductions), 240. s. 6 (county court), 241^ s. 7 (serving notice), 242. Serving of notice — Defect in notice, 242, 248. s. 8 (interpretation), 251. Applies to cases under Lord Campbell's Act, 251. EMPLOYMENT. Of persons engaged in common employment, 197, 198 (Ed. n.). EQUAL RIGHTS, 1, 3, i, 66, 70. ESCAPE. Escaping danger — Accidental injury, 484, 485 (Ed. n.). Liability of sheriff for, 453 (Ed. n.). EVIDENCE. Burden of proof in actions of negligence. Scintilla of not sufficient to go to jury, 49. Questions for the court and jury, 47. 49 (Ed. n.). 686 INDEX. Beferences are to Pages. EVIDENCE — Continued. In cases of fires, 88 (Ed. n.}. Of injuries caused by defects in sidewalks, 321 (Ed. n.). Under statutory obligation of railroad cooipanles to fence tracks, 121 (Ed. n.)- Presumption of negligence — Cases resting in contract, 526 (Ed.n.). Happening of accident prima fade evidence of negligence, 526 (Ed. n.), 627 (Ed. n.). In actions for injuries causing death, evidence of pecuniary condi- tion of deceased's family, 554 (Ed. n.). Of pecuniary condition of defendant, 554 (Ed. u.). Of pecuniary condition of mother, 554 (Ed. n.). Of number of intestate's family, 554 (Ed. n.^. Of ability of deceased to render pecuniary aid to.family, 554 (Ed. n.). EXEMPLARY DAMAGES. In actions for injuries causing' death, 544 (Ed. n.). EXCAVATIONS. See, also, Highway, 140, \41 (Ed. n.), 218 (Ed. n.). On or near the highway, 80, 81 (Ed. n.). LlabUity for, 140, 141 (Ed. n.), 218 (Ed. n.). See Land, etc.. Owners of. EXHIBITION. Of wild animals in streets — Obstructions, 138 (Ed. n.). EXPLOSIVE SUBSTANCES. Liability of vendor for injuries to third person by sale of, 13 (Ed.n.). Care required in use of, 287. FAILURE TO PERFORM STATUTORY DUTY. Negligence per se, 55 (Ed. n.). FALLING SUBSTANCES. See Highway, 70, 71 (Ed. n.). FELLOW-SERVANT. See Mastek and SiIrvant, 179-199. FELONY. Persons injured by, not allowed to bring action until he has insti- tuted criminal proceedings, 647, 548, 549 (Ed. n.). Action for loss of services of daughter by seduction, 549 (Ed. n.). Right of action of person injured by felony not merged in such felony, 647, 549 (Ed. n.). See Injuries Causing Death, 537 (Ed. n.). INDEX. 687 References are to Pages. FENCE. At common law owner not bonnd to fence in his animals, 109, 111 (Ed. n.). Care In placing barbed wire fence near highway, 288 (Ed. n.) Ballway companies bound by statute to fence, 110. Duty to fence extends to all owners In some States whether their lands adjoin highway or not, 110 (TEd. n.). Agreement releasing company from statutory obligation to fence, 110. Parol agreement not binding, 110 (Ed. n.). Ballway companies are under no common law obligation to fence their roads, 111 (Ed. n.). This duty Is imposed by statute. 111 (Ed. n.). They are not required to fence at station grounds and their ap- proaches, 113 (Ed. n.). At crossings of streets in cities or towns, 113 (Ed. n.). At highway crossings within the limits of incorporated cities or towns in some States, 113 (Ed. n.}. Cattle-gnards are required at highway and farm crossings, 114:, 114 (Ed. n.). Bailway companies are not relieved of the duty of fencing because work of construction is in the hands of contractor, 114 (Ed. n.). Bailway companies must fence on both sides of their road, 114 (Ed. n.). They are not bound to fence tbetr roads to keep children oS, 115 (Ed. n.). Sufficiency of fence, 115 (Ed. n.). Duty to keep in repair, 115 (Ed. n.), IIT (Ed. n.). — Proximate cause — They are not liable for consequential injuries resulting from fright of animals not caused by actual collision or negligence of company, 118 (Ed. n.}. — Contributory Negligence — Where the common-law rule obtains requiring the owner of cattle to restrain them, the contributory negligence of the owner in failing to keep them from straying is a defense, 119 (Ed. n.). In other States where the common-law rule does not obtain, it is not a defense, 119 (Ed. n.). Though the owner allows his cattle to run at large in violation of statute law, 119 (Ed. n.). And though they were straying on land which did not belong to their owner, 119 (Ed. n.). Where the land through which the road runs b^ongs to the owner of the cattle, and they get upon the track through the failure of the company to fence, 119 (Ed. n.). Bnle In New York, 120 (Ed. n.). 688 INDEX. References are to Pages. FENCE — Continued. In Indiana, 120 (Ed. n.). In Michigan, 120 (Ed. n,). In Ohio, 120 (Ed. n.). Continuing to pasture hogs in field with ^lowledge of defect in fence, not contributory negligence, 120 (Ed. n.). Nor where plaintiff knew of defect and that horse was "breechy," 120 (Ed. n.). — Evidence — Burden of establishing negligence on plaintifE, 121 (Ed. n.). In some States the burden is on the company to show the exercise of care, 121 (Ed. n.). Presumption may be rebutted by proof of care, 122 (Ed. n.). Plaintiff must prove that the company was bound to fence at the point of entry, 122 (Ed. n.). — Statutory duty to fence — Railroads required to fence In Connecticut, 112 (Ed. n.). In Illinois, 112 cEd. n.). In Indiana, 112 (Ed. n.). In Iowa, 112 (Ed. n.). In Kansas, 112 (Ed. n.). In Maine, 112 (Ed. n.). In Massachusetts, 112 (Ed, n.). In Michigan, 112 (Ed. n.). In Minnesota, 112 (Ed.n."). In Missouri, 112 (Ed. n.). In New Hampshire, 112 (Ed. n.). In New York, 112 (Ed. n.). In Nevada, 112 (Ed. n.). In Ohio, 112 (Ed. n.). In Oregon, 112 (Ed. n.). In Utah, 1 13 (Ed. n.). In Vermont, 113 (Ed. n.). In Washington, 113 (Ed. n.). In Wisconsin, 113 (Ed. n.). But none in Maryland, 111 (Ed. n.). FINE. See Pbitaltt. FIEE. When proximate cause of injury, 32 (Ed. n.), 45 (Ed. n.). Damage by, 46, 81, 83 (Ed. n.)- 90 (Ed. n.). Statutes in relation to, 86 (Ed. n.). Presumption of negligence, 85 (Ed. n.) — Railway flres — Railway companies must adopt the most approved appliances to prevent the setting out of fires, 86 (Ed. n.). INDEX. 689 Beferences are to Pages. FIRE — Continued. X'ailure to nse spark-arrester, or using a defective one, or one adapted for burning coal on an engine burning wood, 86 (Ed. n.). Permitting combustible matter to accumulate near track, 87 (Ed.n.). Burden of proof — On company to show care, 87 (Ed. n.). Presumption of negligence established by statute, 88 (Ed. n.). — Evidence — That after passage of train grass and combustible material were discovered burning along the line of the road, not of itself evidence of negligence, 88 (Ed. n.). Evidence of other fires, 88 (Ed. n.). Contributory negligence — of owner of land contiguous to a railroad track —Not obliged to keep his land clear of combustible matter, 89 (Ed. n.). Instances of contributory negligence — Allowing shavings to ac- cumulate about unfinished building near a railroad track, 90 (Ed. n.). Permitting the windows of a warehouse stored with combustible matter to remain open and nnglazed, 91 (Ed. n.). Permitting use of locomotive in the vicinity of a warehouse by its owners, 91 (Ed. n.). Allowing a steam engine for threshing grain to be placed near stacks of hay during a high wind, 91 (Ed. n. ). Where one could easily have saved his building from loss by fire he cannot recover, 91 (Ed. n.). But piling cord wood near track of railroad under contract with the company is not sufficient to constitute contribatory negligence, 90 (Ed. n.). Nor leaving the windows of an unfinished building open, though the floor Is covered with shavings, 90 (Ed. n.). Nor suffering a roof of a building near the track to get in such a condition that sparks could be blown through, 90 (Ed. n.). Building near a railroad track, 90 (Ed. n.). FIRB ARMS. See Dangerous Thuigs, 11, 285, 286 (Ed. n.). FIRE DEPARTMENT. Municipal corporation not liable for omission to maintain a suitable Are department, 149 (Ed. n.), 150 (Ed. n.). For Injuries caused by negligence of officers of, 150 (Ed. n.). FIBE-WOBKS, 286. Municipal corporation not responsible for injuries caused by dis- charge of, though in violation of ordinance, 160 (Ed. n.). 44 690 INDEX. Beferences are to Pages. FLAGMAN. See Railway Company, 604 (Ed. n.), 505 CEd. n.). FLOOD. Extraordinary, 26, 47 (Ed. n.). Rainfall, 26 n. Not proximate canse of loss, 47 (Ed. n.). Goods to be transported by carrier delayed through their negligence and afterwards d^estroyed by extraordinary flood, 47 (Ed, n.). Property exposed to flood by wrongful act concurrent in point of time, 48 (Ed. n.). FLORIDA. Comparative negligence obtains in, 463 (Ed. n.;. Action for injuries causing death, 561 (Ed. n.). FOOT PASSENGERS. See Law of the Road. FOREMAN. Whether fellow-servant pf laborer, 183 (Ed. n.)- FORGERY. Bankers to detect, 441, 442 (Ed. n.). FOWLS. Whether owner liable for trespass by, 124, 126. FRUIT STAND. Whether a nuisance, 189 (Ed. n.). FUNERAL EXPENSES. When recoverable in action for injuries causing death, 545. Recoverable in America as part of damages, 601. GAS COMPANIES. Required to use greatest care, 289. Liable for neglecting to repair pipes, 290. Persons. must give notice of escape.of gas, 290. GEORGIA. Comparative negligence obtains in, 463 (Ed. n.). Master must furnish safe appliances, 195 (Ed. n.). Action for injuries causing death, 537 (Ed. n.), 562 (Ed. n.). When injury amounts to a felony, 548 (Ed. n.), 662 (Ed. n.). Burden of proof on defendant to establish plaintiff's contributory negligence, 470 (Ed. n.). Statutes affecting employer and employe, 245 (Ed. n.). Common carrier may limit liability, 344 (Ed. n.). INDEX. . 691 References are to Pages. GOVERNMENT OFFICERS. See PuBUC Officers. Not liable for negligence of subordinates, 416, 450 (£d. n.). Postmasters, 450 (Ed. n.). Officers of the army, 450 (Ed. n.). GRATUITOUS- ACTS, 21 n. See Volunteer, 185. GROSS NEGLIGENCE. See Mori: than Ordinart Cabk. GROWING CROP. GUEST. See Innkeeper. Liability of host, 62. Liability of landlord for injuries to guest of tenant, 102. GUN. Vendor selling gun known to be dangerous to father of lad knowing he would use it, 11. HAIR WASH. Vendor selling pernicious hair dye to man knowing his wife would use it, 11. HARTFIELD v. ROPER, 516. HEAVEN o. PENDER. In fuU, 12, 14-19. HIGHWAY. Injuries by defects in, and some other cause, town not liable, 33 (Ed. n.). Injuries from falling substances, 71 (Ed. ^n.). Awning sheet, 71 n., 305 (Ed. n.). Deviation from highway — Injuries by, 316 (Ed. n.). Repair of highway, 133. No action at common law for injury arising from non-repair of, 133, 134 (Ed. n.). No common-law obligation resting upon guasi'-corporations, counties, townships and New England towns to repair highways, 134 (Ed. n.). Cities and towns voluntarily accepting charters from State con- ferring special' privileges liable to an action for damages to persons Injured by failure to keep highways in repair, 186 (Ed. n.). — Obstructions — In erecting buildings, 138 (Ed. n.). Exhibiting wild animals, 188 (Ed. n.). Moving buildings, 138 (Ed. n.). Stairway on side of street, 138 (Ed. n.). 692 INDEX. Beferences are to Pages. HIGHWAY— Continued. Post at corner of street, 138 (Ed. n.). Hackney coach stand a nuisance, 138 (Ed. n.). Water tank In center of street, 138 (Ed. n.) . Market house, 138 (Ed. n.). Collection of carts for reception of slops, 138 (Ed. n.). Stepping-stone on outer edge Of sidewalk, 307 (Ed. n.). Temporary obstruction by delivery of merchandise on sidewalk, 138 (Ed. n.). Fruit stand, 139 (Ed. n.). Brick wall on edge of sidewalk, 139 (Ed. n.). Water plug projecting above sidewalk, 307 (Ed. n.). Obstructions frightening horses, 142 (Ed. n.). Liability of municipal corporation tor, 142 (Ed. n.). Persons lawfully interfering with highway must see that reasonable care is taken, 140. , — Excavation — Municipal corporation liable for dangerous excava- tions left unguarded in streets, though the work is in the hands of ' a contractor, 141 (Ed. n.). And though it has no control over the work, 141 (Ed. n. ), 222 (Ed. n.), 292 (Ed. n.). — Change of grade — of streets — Liability for damage caused by, 301 (Ed. n.). For damages caused by surface water, 302 (Ed. n.}, 303 (Ed. n.). — Sewers and drains, 304 (Ed. n.). Coasting in streets, 306 (Ed. n..). Blasting In streets^ 305 (Ed. n.). Sidewalks — Liability for injuries caused by defects in, 306 (Ed. n.), 314 (Ed. n.). HIKE. Master allowing servant to be hired, liability, 209, 210 (Ed. n.). HOLE. See Excavations. In sidewalk, 307 (Ed. n.), 309 (Ed. n.). HORSE. Obstruction In road frightening, 141 n., 142 (Ed. n.). Liability of municipal corporation for, 142 (Ed. n.). Hire of, 210 (Ed. n.), 212 n. Carriage of, 348, 351 (Ed. n.). HOSPITAL. Not liable for negligence of agents, 208 (Ed. n.). Not liable for negligence of trustees, 208 (Ed. n.). Liable for unskillful treatment of unpaid attending surgeon, 208 (Ed. n.>. INDEX. 693 References are to Pages. HOST. To gnest, ordinary care, duty to warn against trap, 62. See Innkeepers, 410-419. HOTEL KEEPERS. See INNEBBFSRS, 410-419. HUSBAND AND WIFE. Contributory negligence of husband driving imputable to wife, 612 (Ed. n.). Actlop for loss of, under Lord Campbell's Act, 535. Under State statutes, 556 et seq. Damages under, 543, 544 (Ed. n.). Loss of wife's companionship, 548 (Ed. n.}. Of husband's companionship, 543 (Ed. n,). ICE. See SIDEWAI.E, 309 (Ed. n.), 313 (Ed. n.). IDAHO. Actions for injuries causing death, 563 (Ed. n.). IDENTIFICATION. Of passenger with driver, 504-518 (Ed. n.). ILLINOIS. Actions for injuries causing death, 563 (Ed. n.). Rule as to burden, of proof, 473 (Ed. n.). Common carrier may limit liability, 344 (Ed. n.). Comparative negligence, 464. Negligence of parents not imputable to child, 514 (Ed. n.). Statutes requiring railroads to fence tracks, 112 (Ed. n.}. Statutes providing for attorney's fees in actions for killing stock, 123 (Ed. n.). Master must furnish safe appliances, 195 (Ed. n.). IMPUTED NEGLIGENCE. Contributory negligence of carrier Imputable to passenger, 504, 507, (Ed. n.). The doctrine of Thorogood v. Bryan, rejected in this country, 507 (Ed. n.). ' With some exceptions, 507 (Ed. n.). Contributory negligence of driver of vehicle not Imputable to one riding with him, 507 (Ed. n.). Contributory negligence of driver of hired hack not imputable to passenger, 507 (Ed. n.), 508 (Ed. n.). Rule does not apply as between shipper of goods and carriers, 512 (Ed.H.). 694 INDEX. Beferences are to Pages. IMPUTED NEGLIGENCE — Continued. Between master and servant, 512 (Ed. n.). Between hasband and wife, 512 (Ed. n.). Negligence of parent permitting ctiild to go unaccompanied in high- way imputable to child, rule In California, 514 (Ed. n.). In Indiana, 514 (Kd. n.). In Kansas, 514 (Ed. n.). In Maine, 514 (Ed. n.)". In Maryland, 614 (Ed. n.). In Massachusetts, 514 (Ed. n.). In Minnesota, 514 (Ed. n.). In New York, 614 (Ed. n.). The rule denied In Alabama, 514 (Ed. n.). In Arkansas, 614 (Ed. n.). In Connecticut, 614 (Ed. n.)- In Georgia, 514 (Ed. n.). In niinois, 514 (Ed. n.). In Iowa, 516 (Ed. n). In Louisiana, 515 (Ed. n.). In Michigan, 515 (Ed. n.). In Missouri, 616 (Ed. n.). In Nebraska, 516 (Ed. n.). In New Hampshire, 516 (Ed. n.). In Ne\y Jersey, 515 (Ed. n.). In North Carolina, 616 (Ed. n.). In Ohio, 615 (Ed. n.). In Pennsylvania, 515 (Ed. n.). In Tennessee, 516 (Ed. n.). In Texas, 616 (Ed. n.). In Utah, 515 (Ed. n.). In Virginia, 515 (Ed. n.). In Vermont, 515 (Ed. n.). Presence of parent or guardian contributing to injury, 617 (Ed, n.). INDEPENDENT CONTRACTOR. See Contractor. INDIANA. Common carrier may limit liability, 344 (Ed. n.). Comparative negligence denied in, 465 (Ed. n.). Master must furnish safe appliances, 195 (Ed. n.). Action from injuries causing death, 537 (Ed. n.), 564 (Ed. n.). Burden of proof — Plaintiff must show negligence on part of defend- ant and that he was without fault, 472 (Ed. n.). INDEX. 6&5 References are to PageSi INDIANA — Gontinued. Contrlbntory negligence of owners of animals in allowing them to run at large, 119 (Ed. n.). Negligence of parent imputable to child, '513, 514 (JBd. n.), 517 (Ed. n.). BaUroad companies required by statute to fence tracks, 112 (Ed. n). INEVITABLE INJURY. See Act op God, 41 (Ed. n.), 47 (Ed. n.). INFANT. , See Children, 513, 521. INJURY. Defined, 4. By falling substances, 71 n. Injury caused partly by defendant, partly by something else, 41-43. No defense that injury would have happened without defendant's act, 40 (Ed. n.), 44. Or is greater than would ordinarily have happened, 37. Actions for injuries causing death, 435. INJURIES CAUSING DEATH. Action for, 243 (Ed. n.), 535, 547, 550 (Ed. n.). Statutes and recent decisions Of Alabama, 537 (Ed. n.), 566 (Ed. n.). Of Arkansas, 637 (Ed. n.}, 557 (Ed. n.}. Of Arizona, 556 (Ed. n.). Of California, 537 (Ed. n.), 558 (Ed. n.). Of Colorado, 537 (Ed. n.), 559 (Ed. n.). Of Connecticut, 560 (Ed. n.). Of Delaware, 561 (Ed. n.). Of Florida, 561 (Ed. n.). Of Georgia, 537 (Ed. n.), 562 (Ed. n.). Of Idaho, 563 (Ed. n.). Of lUinois, 563 (Ed. n.). Of Indiana, 530 (Ed. n.), 564 (Ed. n.). Of Iowa, 564 (Ed. n.). Of Kansas, 538 (Ed. n.), 565 (Ed. n.). Of Kentucky, 638 (Ed. n.), 565 (Ed. n.). Of Lopisiana, 538 (Ed. n.}, 666 (Ed. n.). Of Maine, 567 (Ed. n.). Of Maryland, 638 (Ed. n,). 667 (Ed. n.). Of Massachusetts, 638 (Ed. n.;, 668 (Ed. n.). Of Michigan, 539 (Ed. n.), 669 (Ed. n.). Of Minnesota, 570 (Ed. n.). Of Mississippi, 539 (Ed. n.)i 570 (Ed. n.). 696 INDEX. Beferences are to Pages. INJTJEIBS CAUSING DEATH — Continued. Of Missonri, 539 (Ed. n.), 570 (Ed. n.). Of Montana, 571 (Ed. n.). Of Nebraska, 572 (Ed. n.). Of Nevada, 572 (Ed. n.). Of New Hampshire, 539 (Ed. n.), 673 (Ed. n.). Of New Jersey, 573 (Ed. n.). Of New Mexico, 574 (Ed. n.). Of New York, 539 (Ed. n.), 675 (Ed. n.). Of North Carolina, 676 (Ed. n.). Of Ohio, 539 (Ed. n.), 576 (Ed. n.). Of Oklahoma, 577 (Ed. n.). Of Oregon, 577 (Ed. n.). Of Pennsylvania, 639 (Ed. n.), 677 (Ed. n.). Of Rhode Island, 539 (Ed. n.), 678 (Ed. n.). Of South Carolina, 679 (Ed. n.). Of South Dakota, 539 (Ed. n.). Of Tennessee, 640 (Ed. n.), 580 (Ed. n.). Of Texas, 640 (Ed. n.), 580 (Ed. n.). Of Utah, 682 (Ed. n.). Of Vermont, 540 (Ed. n.), 583 (Bd. n.). Of Virginia, 688 (Ed. n.). Of Washington, 540 (Ed. n.), 584 (Ed. n.). Of West Virginia, 684 (Ed. n.). Of Wisconsin, 640 (Ed. n.), 686 (Ed. n.) Of Wyoming, 685 (Ed. n.). — Action — Bight of action by parent for loss of support, 538, 539, 541 (Ed. n.). Kight of action of person injured by felony not merged in felony, 647, 648 (Ed. n.). Person must prosecute felon first in England, 547, 548, 649 (Ed. n.)- But father suing for loss of service of daughter by seduction may maintain action, 549 (Ed. n.). The rule in Georgia, 548 (Ed. n.). Action can be maintained whether death is instantaneous or not, 549, 550 (Ed. n.). Doctrine of contributory negligence applies under statutes, 537, 650, (Ed. n.). Abatement of action by death of wrong-doer, 647. Survival of action as against representatives, 647. Parts receiving compensation in satisfaction of all datms before death, 642. — Evidence — Of ability of deceased to render pecuniary aid to family, 554 (Ed. n.). That deceased was a kind husband and father, 664 (Ed. n.). INDEX. 697 Beferences are to Pages. INJURIES CAUSING DEATH — Continued. Of nnmber of intestate's family, 554 (Ed. n.). Of pecnnloiy condition of deceased's family, 554 (Ed. n.). Of pecaniary condition of defendant, 654 (Ed. n.). Of letters of deceased son to father, 554 (Ed. n.). — Jnrisdiction — Actions not maintainable ont of State in which injury occurred, 555 (Ed. n.). When statutes of State where Injary occnrred and where suit brought are similar, 555 (Ed. n.). — Lindtatlon — Provided for by statutes, 555 (Ed. n.). When statutes are silent, 555 (Ed. n.). — Damages — Measure of, when deceased is the father of a family, 651 (Ed. n.). When deceased Is a minor, 552 (Ed. n.). Damages for injury to personal estate, 446. Damages for mental suffering, 542, For loss of society, wife's companionship, 642, 543 (Ed, n.) . Of husband's companionship, 543 (Ed. n.). Nominal damages, 543. Exemplary or Tindlctive damages, 544 (Ed. n.). Funeral expenses and expenses of last sickness, 545. How far damages may be estimated by annuity tables, 545, 646. INNKBEPEB. Neglect of duties by, 410, 411 (Ed. n.). Liable for thefts of servants, 412 (Ed. n.) . How far liable for burglary, 412 (Ed. n.). For losses by flres, 412 (Ed. n. ) . For safe-keeping of guest's horse, 412 (Ed. n.). For falling to inform guest of prevalence of small-pox at inn, 412 (Ed. n.), 413 (Ed. n.), 418 (Ed. n.;. Not liable for loss of property taken into guest's exclusive posses- sion, 413 (Ed. n.). Or committed to the custody of another, 413 (Ed. n.). Iiiability that of ordinary bailee for baggage left at inn, 413 (Ed. n.). For money deposited with clerk, 413 (Ed. n.). Before the relation of innkeeper and guest has begun, 413 (Ed. n.). After the relation has ceased, 413 (Ed. n.), 414 (Ed. n.). Innkeeper keeping sea-bathing house, liability for clothes of guests bathing, 412 (Ed. n.). IiiabUitymay attach before one is assigned a room, 414 (Ed. n.). Liability during temporary absence of guest, 413 (Ed. n.). — Contributory negligence — Keeping large amount of money in room contrary to known rules, 414 (Ed. n.). 698 INDEX. Beferences are to Pages. INNKEEPER — Continued. Hanging overcoat in open ball. Hi (Ed. n.)> 418 (Ed. n.'). Intrusting property to another, 114 (Ed. n.j. Failing to keep room locked, 414 (Ed. n.), 41£) (Ed. n.). Omitting to inform innkeeper of absence of lock, 413 (Ed. n.). Consenting to occupy room with another guest, 415 (Ed. n.). Guest getting drunk at bar, 415 (Ed. n.). ' — Statutory liability, 415 (Ed. n.). Posting notices on doors, 416 (Ed.* n.). ' Notice printed at head of register wiU not do, 416 (Ed. n.). No defense that guest read a copy there when none was posted in his bed-room, 416 (Ed. n.). Strict compliance with provisions of statute required, 416 (Ed. n.). Obligation to notify innkeeper of property of extraordinary value, 416 (Ed. n.). It does not attach to peddler with his pack, 416 (Ed. n.). Construction of statutes limiting liability of innkeeper, 416 (Ed. n.). — Who is a guest, 417 (Ed. n.). Length of time of one's stay^t an inn, 417 (Ed. n.). Payment of stipulated sum per week, 417 (Ed. n.). Transient visitor, 417 (Ed. n.) . Army ofScer boarding with family on fixed terms, 417 (Ed. n.). Bailway conductor renting rooms atJiotel, 418 (Ed. n.). Besident lodging at inn with disreputable woman, 417 (Ed. n.}. Resident depositing money with clerk for safe-keeping, 417 (Ed. n.). — Boarding-house keepers — not held to same degree of care as innkeepers, 418 (Ed. n.). liiability of restaurant keeper, 418 (Ed. n.). Public caterer liable for supplying guests with unwholesome food 418 (Ed. n.). Owner of apartment hotel not an Innholder, 419 (Ed. n.) . INSURANCE. In actions for injuries causing death, whether benefit of to be taken into account in redaction of damages, 571, 688 (Ed. n.). INSURER. Carrier an insurer of goods, 333, 336 (Ed. n.}. INTENTIONAL ACT. Not negligence, 3. INTERVENTION OF PLAINTIFF. See Contributory Negligence, 459-521. fi'ee Proximate Cause, 30, 31 (Ed.n.). INTERVENTION OF THIRD PARTY. See Proximate Cause, 30, 81 (Ed. n.)i INDEX. 699 References are to Pages. INTEEVENTION OF THE FORCES OF NATUKE. See Proximate Cause. INTOXICATION. Contributory negligence, 503 (Ed. n,). Question for the jury, 503 (Ed. n.). No excnse, 503 (Ed. n.). Proximate cause of death, 41 (Ed. n.). INVITATION. Degree Of care to be exercised towards persons coming upon land by, 62, 71, 72 (Ed. n.), 276, 277. Invitation may be express or implied, 15, 72 (Ed. n.). Is a question of evidence, 281. Iiiability for injury to police officer entering bnilding to inspect elevator as required by statute, 73 (Ed. n.). For injury to officer entering premises at request of tenant to arrest a person, 73 (Ed.n.). For injury to one having a right of way over premises, 73 (Ed. n.). For defective condition of public hall, 104 (Ed. n.), 267. For injury to customer in store, 279, 280 (Ed. n.), 281. Coming upon railroad premises, 276-279. IOWA. Burden of proof — Plaintiff must show negligence on part of defend- ant, and that he was without fault, 472 (Ed. n.). Consequential damage to cattle by getting on raUroad track, 118 (Ed. D.). Railroads required by statute to fence, sufficiency of fence, 112 (Ed. n.), 116 (Ed. n.). Common carrier may limit liability, 344 (Ed. n.). Contributory negligence of driver of vehicle imputable to one riding with him, 508 (Ed. n.). Statutory liability of railway companies for injuries to employes, 246 (Ed. n.;. Construction of statutes afiecting the liability of railway companies to employes, 246 (Ed. n.). Master mnst furnish safe appliances, 195 (Ed. n.). Actions for injuries cansing death, 664 (Ed. n.). JOINT TORT-FEASORS. Owners of two or more animals doing injury are not, 133. May be sued jointly or separately, 603, 604. JUDICATURE ACT. Execution of trust assigned to Chancery Division of High Court by, 254. 700 INDEX. Beferences are to Pages. JUDGES. ISot liable for negligence in ordinary performance of dnties, 451 (Ed.n.). Though they act corruptly or oppressively, 451 (Ed. n.). Magistrates mnst not only act within their jurisdiction, 451 (Ed. n.)- Bat honestly and in good faith, 451 (Ed. n.). JURISDICTION. In actions for injuries causing death, 555 (Ed. n.). JURY. Questions for, 49. JUSTICES OP THE PEACE. Must not only act within their jurisdiction, 451 (Ed. n.}. But honestly and in good faith, 451 (Ed. n.}. Liable tor negligence when they act ministerially, 451 (Ed. n.). For entering up judgment by mistake for defendant, which plaintiff is obliged to satisfy, 451 (Ed. n.}. For issaing order of arrest without undertaking of indemnity, 451 (Ed. n.). For issuing warrant of arrest without authority of law, 451 (Ed. n.). For less of money collected officially and deposited with private account, 451 (Ed. n.). KANSAS. Comparative negligence obtains in, 465 (Ed. n.). Master must furnish safe appliances, 195 (Ed. n.). Actions for injuries causing death, 538 (Ed. n.), 565 (Ed. n.). Burden of proof on defendant to establish plaintiff's contributory negligence, 471 (Ed. n.). Railroad companies must inclose their tracks with fence — Building fence along sides not sufficient, 112 (Ed. n.), 114 (Ed.n.), 116 (Ed.n.). Statutes providing for attorney's fees in action for killing stock constitutional, 123 (Ed. n.). Statutes affecting employer and employe, 247 (Ed. n.). Negligence of parent imputable to child, 614. Common carrier may limit liability, 344 (Ed. n.). KENTUCKY. Rule as to comparative negligence, 465 (Ed. n.). Common carrier may limit liability, 344 (Ed. n.) Actions for injuries causing death, 538 (Ed. n.), 565 (Ed. n.) Burden of proof on defendant to establish plaintiff's contributory negligence, 471 (Ed. n.). INDEX. 701 References are to Pages. KNOWLEDGE. Of dangerous condition of premises by landlord, 107 C^d. n.). Of dangerous condition of premises by corporation, 153. Scienter, proof of, when necessary, 132, 284. Notice of defect in highway, 300, 320 (Ed. n.), 321 (Ed. n.). LAND, ETC., OWNERS OF. See,also, SrppoRT. Eqnal rights, i, 6, 6, 66, 70. Digging near edge of land, 6-10, 66. Underground, 9 (Ed. n.), 69. Support of buildings, 5-rlO, 66, 70 (Ed. n.). Property used for one's own advantage, more than ordinary care required, 70. Coming upon land by invitation, 71, 72. Upon business premises, 72 (Ed. n.). Upon railroad premises, 73 (Ed. n.). Upon wharf ,73 (Ed, n.). Coming upon land without invitation, 74-78. Bare licensee, 75. Owner liable for anything in the nature of a trap known to him, 79. Excavation upon land, 80, 81 (Ed. n.). Fire upon land — Liability at common law and by statute, 81, 85 (Ed. n.). Poisonous trees, 91. Dangerous substances on land, 82, 83. Bringing water npon land, 92, 98. Surface water, 92. Fences upon land, 106, 111 (Ed. n.)-123. See Real Propkktt. •LANDLORD AND TENANT. LiabUify for original constmctioD, 100, 101. Liability for a nuisance, 101, 102 (Ed. n.). When landlord has covenanted to do repairs, 102. Liability of landlord and tenant for injuries to third persons, 102. Injuries by coal holes in sidewalks, 102 (Ed. n.). Knowledge of defective condition of premises at time of letting, 103 (Ed. n.). Liability of one letting hall to be used for public purposes, 104 (Ed. n.). Liability when lessee has covenanted to repair, 104 (Ed. n.). Liability of landlord to tenant, 102, 106 (Ed. n.). Where landlord retains control of premises, 107 (Ed. n.). Where premises are in a dangerous condition, 107 (Ed. n.). Letting premises knowing they are infected with small-pox, 108 (Ed. n.). Negligence in respect to use of water pipes, 108 (Ed. n,). 702 INDEX. Beferences are to Pages, LATENT DEFECT. Master liable for, 170 (.Ed. n.). LATERAL SUPPORT. See Support. LAW AND FACT. Negligence a mixed question of law and fact, 49. When tlie facts are disputed but tlie conclusion to be drawn there- from undisputed the question of negligence is for the jury, 49. When the facts are undisputed and the conclusion to be drawn therefrom indisputable the question of negligence is for the court, 49 (Ed. n.). Illustrations of negligence per se, 60-55 (Ed. n.). Crossing railroad tracks, 50. Walking on track, 51. Crawling under train, 52. Riding on platform of cars, 52, 376 CEd. n.). Projecting arm from car window, 52, 378 (Ed. n.). Alighting from moving train, 54, 378 (Ed. n.), 899. Boarding moving train, 63, 375 (Ed. n.). Sleeping near track, 52. Lying on track, 52. Stepping in front of locomotive, 51. Failure to perform statutory duty, 65. Defect in highway, 55. LAW OF THE ROAD. Persons not bound to keep to right side of road in England, 63. Prima facie evidence of negligence, that vehicle was on wrong side of road, 63. Foot passengers and drivers have equal rights in public streets, 63. Duty of foot passengers and horsemen to give way to loaded vehicles, 64 (Ed. n.). Duty of pedestrians to look both ways before crossing business street of large cities, 64 (Ed. n.). Drivers of vehicles in America required to keep to the right of the ' center of the road,- 64 (Ed. n.). When a violation of the law will not prevent a recovery by plaintiff or render defendant liable, 64 (Ed. n.). More care is exacted of one on the wi;ong side of the road than if he were on the right side, 65 (Ed. n.) . When the rule of the road does not apply, 65 (Ed. n.). LESSOR AND LESSEE. See Landlord and Tenant, 108, 108. INDEX. 703 Beferences are to Pages. LESS THAN ORDINARY CARE. Neglect of duties raqniiing, 25. Gratnltons depositaries, 456. Bankers as gratnitons depositaries, 466. Gratnitons baUoi, 457. Grataitonsly dedicating a road, 457. Volunteer, 457. Bare licensee, 457. Trespasser, 457. Doing a gratnitons service, 458. Grataitonsly acting as solicitor, 457. LEVEL CROSSINGS. See RAII.WAT Companies, 50 (Ed. n.), 113 (Ed. n)., 498 (Ed. n.), 506 (Ed. n.). LICENSEE. No liability for injuries to, where there is no nuisance, 74, 457. Injury to workman getting under crane and backet, 74. To person entering newspaper office late at night, 75 (Ed. n.^, 279 (Ed. n.). To one taking refage in public hotel to escape a storm, 74 (Ed. n.). To one taking refuge in a railroad station house to escape a storm, 75 (Ed. n.). LIFE, LOSS OF. See Actions for Injuries CAUstNe Death. LUHTATION OF ACTTIONS. Affecting damage to land — By excavations, 9 (Ed. n.). In actions for injuries causing death, 555 (Ed. n.). LIVE STOCK. See Stock. LORD CAMPBELL'S ACT. See Injuries Causing Death, 535. Doctrine of contributory negligence applies ander, 537, 540 (Ed. n.;. Negligence of fellow-servant, 540 (Ed. n.}. LOSS OF SOCIETY. Not an element of damage in actions for injuries causing death, 642, 543 (Ed. n.). LOUISIANA. Action for injuries causing death, 538 (Ed. n.), 566 (Ed. n.). Burden of proof — Flaintifi must show negligence on part of defend- ant and that he was without fault, 472 (Ed, n.). Attorney's fees in actions for killing stock not allowed, 123 (Ed. n.) . Railroad companies not required by statute to fence, 111 (Ed. n.). Common carrier may limit liability, 344 (Ed. n.). 704 INDEX. Beterences are to Pages. LUGGAGE. 8ee Railway Compant, 360, 363 (Ed. n.). LYNCH ». NUKDIN, 31 n., 516. MAGISTRATE. See Justice of thb Peace, 461 (Ed. n.). MAIL AGENT. Not fellow-servant ol railroad employe, 187 (Ed. n.). Except in FeDnsylvanla, 187 (Ed. n.}. MAIL CONTRACTOR. Liability for money lost through negligence of agents, 150 (Ed, n.). MAINE. Action for injuries causing death, 567 (Ed. n.). Burden of proof — plaintiff must show negligence on part of defend- ant and that he was without fault, 472 (Ed. n,). Negligence of parent imputable to child, 514 (Ed. n.}. Railroad companies required to fence tracks, 1 12 (Ed. n.}. Common carrier may limit liability, 344 (Ed. n.). MALPRACTICE. Action against firm of physicians for, 419, 422 (Ed. n.). Contributory negligence in actions for, 426 (Ed. n.). MANDATORY. Skill required of, 21 n. MAN TRAP. SetLing up spring guns on premises, 79. One may protect shop by, 80 n. MANUAL LABOR. Under Employer's Liability Act, 232. MANUFACTURER. Qound to reasonable care, 61. MARKET HOUSE. Whether a nuisance, 138 (Ed. n.). MARYLAND. Comparative negligence obtains In, 465 (Ed. n.) . Action for injuries causing death, 538 (Ed. n.), 567 (Ed. n.V Adult children entitled to recover for death of parent, 553 (Ed. n.). Burden of proof on defendant to establish plaintiff's contributory negligence, 471 (Ed. li.). / Negligence of parent Imputable to child, 614 (£d. n.). Railroad companies not required to fence, 111 (Ed. n.) INDEX. 705 Beferences are to Pages. MASSACHUSETTS. Comparative negligence denied in, 465 (Ed. n.). Master mnst furnish safe appliances, 195 (Ed. n.). Action for injuries causing death, 538 (Ed. n.), 666 (Ed. n.). Burden of proof — plaintiff must show negligence on part of defend- ant and that he was without fault, 172 (Ed. n.). Bailroad companies required by statute to fence tracks, 112 (Ed. n.). Negligence of parent imputable to child, 514 (Ed. d.), 617 (Ed. n.). Common carrier may limit liability, 344 (Ed. n.). MASTER AKD SERVANT. Breach of duty to servants, 158, 164. Master liable for negligence in selecting servants, 154, 155. Or retaining them after notice of their incompetency, 155, 156 (Ed. n.). He must take reasonable care to furnish them with adequate materials, 165, 157 (Ed. n.), 167 (Ed. n.). He must make rules for the safe managen:ent, 161, 162, 166 (Ed. n.). He does not warrant the competency of his servants, 157, 159 (Ed. n.). Or guarantee his servants against all risks, 160, 161 (Ed. n.). And be is not liable for injuries to servants in consequence of their disobeying positive orders, 169. Or rules, 165 (Ed. n.). - The master must inform the servant of extraordinary risks, 161, 162, 166 (Ed. n.). Master liable for latent defects, 163 (Ed. n.), 170. The servant assumes the ordinary risks incident to his employment, 160, 173. Though hired tor a different and less dangerous business and put into a more dangerous business against protest, 172 (Ed. n.). Waiver of common-law rights by servant, 166. Employe suddenly commanded to do a particular act not required to exercise same degree of diligence as when he has time for reflection, 160 (Ed. n.). Continuing in service after notice or knowledge of danger, 168, 166 (Ed. n.^, 173, 176 (Ed. n.), 493 (Ed. n.). Promise by master to repair defect in machinery or tools, 171, 175 (Ed. n.), 494 (Ed. n.). Continuing in service after promise by master to repair defects, 398, 399,400, 175, 176 (Ed. n.), 494 (Ed. n.), 495 (Ed. n.). When employment is not hazardous and no great skill is required, 496 (Ed. n.), — Fellow-servant — Master not liable for damage resulting from negligence of fellow -servant in the course of common employment, 179. 45 706 INUKX. Seferences are to Pages. MASTER AND SERVANT — Continued. Who are fellow-servants, 179-186 fEd. n.)i 183. Bailroad employes, 179-186 (Ed. n.). Who are not fellow-servants, 186-189 (Ed. n.). Volunteer assistants, 186, 189 (Ed. n.). Servants serving the same master yet having different masters, 189, 190. Vice-principal — Test whether one is feUow-servant or vice-princi- pal, 187, 188, 190-196 (Ed. nj. Duty to provide sale machinery cannot be delegated to servant so as to relieve master from responsibility, 193-196 (Ed. n.). Persons engaged in common employment, 197, 198 (Ed, n.), 199 (Ed. n.), — Breach of duty to others, 199. Master responsible to others for properly selecting his servants, 199. Master not liable when servant is not acting within the scope of his employment, 199, 200 (Ed. n.), 203. Master liable when servant is actinp within the scope of his employment, 203, 204, 206 (Ed. n.). Wrongful acts of servants in course of employment, 204, 206. Removal of persons from railroad trains by servants of company, 203 (Ed. n.). Servant acting contrary to orders, 204, 205 (Ed. n.). Acting illegally, 204, 206 (Ed. n.), 206. Wanton and willful acts of servants — how far master is liable for, 205, 206, 207, 209. Assaults of servants of railroad company upon passengers — liability of company, 207 (Ed. n.). Assaults by strangers, 207 (Ed. n.). Assaults committed by{o£Scers of charitable Institutions, 208 (Ed. n.). Negligence of surgeon of hospital, 208 (Ed. n.).' Whether the servant is still in the master's service, 210. Master allowing servant to be hired by another, liability, 211-214. Master liable for negligence of under servant employed by servant, 2ll, 212 (Ed. n.). Independent contractor or servant, 176, 214, 216 (Ed. n.), 221, 222 (Ed. n.). Employer not liable for negligence of independent contractor, when, 214, 215 (Ed. n.), 223. Employer liable when he Interferes with the work, 215,'216 (Ed. n.) . Exercises control over the mode of doing the work, 216 (Ed. n.), 218 (Ed. n.). Reserves power to remove servants, 216 (Ed. n.). Performs part of the work, 216 (Ed. n.). When the work is wrongful, 224. INDKX. 707 Beferences are to Pages. MASTER AND SERVANT — Continued. When the work is itself a nnisance, 219 (Ed. n.). The rule applies to mnnicipal corporation8,.218 (Ed. n.). Though no control is exercised over the work, 218 (Ed. n.). Contractor relieved of liability by placing work in hands of sub- contractor, 221,223 (Ed. n.). Ovmers of real property not liable for negligence of contractors any more than the owners of chattels, 224. Who is a " contractor," 220. Paid by^ay or job, 220. Uable to dismissal, 221. Government servants not responsible for negligence of others in same employment, 225. Employer's Liability Act, 225, 251. Statutes afiecting employer and employe, 243, 251 (Ed. n.). — Duties of servants, 261. IJabUity to third parties, 251, 252 (Ed. n.). One servant may recover against another for negligence, 252. Master and servant jointly liable for trespass, 252 (Ed. n.), 253. MATERIALS EXPLOSIVE. See D.AKGBBOUS Things, 13 (Ed. n.}, 285, 286 (Ed. n.^. MENTAL SUFFERING. Not an element of damages in actions for injuries causing death, 542. Allowed in some States, 542. MICHIGAN. Comparative negligence obtains in, 465 (Ed. n.). Master must furnish safe appliances, 195 (Ed. n.). Action for injuries causing death, 539 (Ed. n.), 569 (Ed, n.). Contributory negligence of owners of animals in allowing them to run at large, 120 (Ed. n.). RaUroad companies required by statute to fence tracks, 112 (Ed. n.). Burden of proof — PlaintiS must show negligence on the part of defendant and that he was without faulty 472 (Ed. n.). Negligence of parent not imputable to child, 515 (Ed. n.). MmES. See Support, 7, 58, 9 (Ed. n.), 70. MINISTERIAL ACTS. Officer liable for negligence where duties are ministerial, 445, 449 (Ed. n.). MINOR. Measure of damages, in action for death of, 552 (Ed. n.). 708 INDEX. Beferences are to Pages. MINNESOTA. Action for injuries causing death, 670 (Ed. n.). Burden of proof on defendant to establish plaintiff's contribatory negligence, 471 (Ed. n.). Conseqnential injuries to animals getting on railroad track, liability, 118 (Ed. n.). Negligence of parent imputable to child, 511 (Ed. n.), 517 (Ed. n.). Railroad companies required to fence tracks, 112 (Ed. n.). Statute applies to limits of incorporated cities and Tillages, 115 (Ed. n.). Sufficiency of fence, 116 (Ed. n.). Common carrier may limit liability, 344 (Ed. n.). MISSISSIPPI. Comparative negligence obtains in, 465 (Ed. n.). Action for injuries causing death, 639 (Ed. n.), 570 (Ed. n.). Burden of proof — Plaintiff must show negligence on part of de- fendant and that he was without fault, 473 (Ed. n.). Statutes affecting employer and employe, 247 (Ed. nj) Negligence of parent not imputable to child, 515 (Ed. n.). MISSOURI. Employer's liability statutes, 247 (Ed. n.). Master must furnish safe appliances, 195 (Ed. n.). Action for injuries causing death, 539 (Ed. n.), 570 (Ed. n.). Burden of proof on defendant to exhibit plaintiff's contributory neg- ligence, 471 (Ed. n.). Consequential damages for injury to cattle on railroad track, 118 (Ed. n.). Negligence of parent not imputable to child, 515 (Ed. n.). Railroad companies required to fence tracks, 112 (Ed. n.), 122 Ed. n.). What is a lawful fence, 116 (Ed. n."). Common carrier may limit liability, 344 (Ed. n.). MITIGATION OF DAMAGES. Contributory negligence, the doctrine in Tennessee, 466 (Ed. n.). The role in Georgia unsettled, 463 (Ed. n.}. MOB. Municipal corporation not responsible for destruction of property by, 160 (Ed. n.). Unless a statute gives a remedy, 150 (Ed. n.). i MONTANA. Burden on defendant to prove plaintiffs contributory negligence, 471 (Ed. n.). Action for injuries causing death, 671 (Ed. n.). Statute affecting employer and employe, 248 (Ed. n.). Master must furnish appliances, 195 (Ed. n.). INDEX. 709 Beferences are to Pages. MOEE THAN ORDINARr CARE. Persons professing skill, 20, 69. Neglect of dnties requiring, 25. For benefit of performer, 266, 267 (Ed. n).'^ Grataitons loan in case of bailee, 266. Owner using property for his own advantage, 267. Public stands, etc., danger, 267. Benefit of owner, 267. Invitation, 267, 277, 279. No defense, contractor, 267, 268, 271. Volnnlieer, 268. Mandatory, 268, 269 (Ed. n.). SkUl, 269. last of persons undertaking to use skill, 270. Persons doing dangerous things, 270, 283. Performing statutory duties, 272. Common carriers, 272, 273. When required of owners and occupiers of real property, 274-282. MOTHER. Action by, for death of son, 637 (Ed. n.), 511 (Ed. n.}. Evidence of pecuniary condition, 511 (Ed. n.). MUNICIPAL CORPORATION. Right of, to lateral support, 9 (Ed. n.) . Iiiabillty of, as to surface water, 91 (Ed. n.). Liability of, for defective bridges. 111 (Ed. n.). Not liable for injaries sustained by reason of omission to exercise discretionary powers, 119, 291. For omission to maintain suitable fire department, 119 (Ed. n.). For failure to furnish sufficient water supply for extinguishment of fires, 150 (Ed. n.). For injuries caused by negligence of officers of fire department in performing their duties, 150 (Ed. n.). For the destruction of property by mobs, unless a statute gives a remedy, ISO (Ed. n.). For the destruction of property to prevent the spread of a conflagra- tion, 150 (Ed. n.). For injuries caused by discharge of cannon in streets, 160 (Ed. n.). For negligence of officers in executing sanitary regulations prevent- ing the spread of contagious diseases, 161 (Ed. n.). For failing to pass an ordinance prohibiting swine from running at large, 151 (Ed. n.). Or to execute such ordinance, 151 (Ed. n.). For the negligence of its servants when their acts are not withii>. the scope of its corporate powers, 151 (Ed. n.). 710 INDEX. References are to Pages. MUNICIPAL CORPORATION — Continued. And though the act is -within the corporate powers, U it Is not with- in the scope of the officer's or agent's employment, the corporation will not Ije liable, 152 (Ed. n.).' But where it is for the private advantage of the city, the city will be liable for the negligent acts of its agents, 152 (Ed. n.}. — Excavations — Liable for injuries caused by dangerous excava- tions In streets, though the work is in the hands of a contractor, 218 (Ed. n.), 292 (Ed. n.). — Change of grade — Not generally liable for consequential damages caused by, 301 (Ed. n.). Liable if the work is negligently done, 302 (Ed. n.). Not liable for errors of judgment in devising the plan of an improve- ment, 302 (Ed. n.). Nor for allowing surface water to escape from the highway to adja- cent land, 802 (Ed. n.). Liable for collecting water in channels and throwing it In a body on to adjacent land, 302 (Ed. n.). — Sewers and drains — Not liable for defect in plan of sewerage, 301, 304 (Ed. n.). Nor for injuries caused by sewers^of insufficient capacity, 303 (Kd. n.), 304 (Ed. n.). Liable for injuries caused by the failure to repair or complete the construction of, 304- (Ed. n.). — Awnings — Signs, etc. — Liable for injuries caused by defectively hung awnings over sidewalks, 305 (Ed. n.). Not liable for injuries caused by defectively hung signs, 305 (Ed. n.). Nor for injuries caused by snow falling from adjoining roofs, 305 (Ed. n.). Dangerous wall, 805 (Ed. n.). — Coasting in streets, — Not liable for injuries caused by, 306 (Ed. n.). Unless prohibited by ordinance, 306 (Ed. n.). — Blasting in streets — Liable when the work is negligently done, 305 (Ed. n.). — Sidewalks — Liable for injuries causedlby defects in, 306 (Ed. n.)- 314 (Ed. n.). Not liable for defect in plan of construction of sidewalk, 307 (Ed. n.). Duty of lot owner to repair, 309 (Ed. n.). Snow and ice on sidewalks such defects as may render city liable for injuries received by foot passengers, 309 (Ed. n.)-311 (Ed. n.}. Lot owner liable for injuries In respect to coal holes, etc., 309 (Ed. n.). Contributory negligence, 314 (Ed. n.). INDEX. 711 References are to Pages. MUNICIPAL CORPORA.TION — Conttnwd. Deviation from highway, liability for injuries received, 315 (Ed. n.), 816 (Ed. n.). City not bound to provide means of access from private property to streets, 817 (Ed. n.). Nor to erect barriers to prevent travelers from straying from high- way, 817 (Ed. n.). Nor to maintain railings about areas in front of the basement offices and shops upon the streets, 317 (Ed. n.)-. — Notice — Corporation must be shown to have had notice of defect, 817 (Ed. n.). Notice may be actual or constructive, 318 (Ed. n.) May be inferred from character of defect or length of time it existed, 318 (Ed. n.), 819 (Ed. n.). Officers charged with knowledge or notice, 320 (Ed. n.). — Evidence — Proximate cause, 821 (Ed. n."), 323 (Ed. n.). NEBRASKA. Comparative negligence obtains in, 465 (Ed. n.). Action tor injuries causing death, 572 (Ed. n.)- Burden of proof on defendant to establish plaintiff's contributory negligence, 471 (Ed. n.). Negligence of parent not imputable to child, 615 (Ed. n.). Common carrier may limit liability, 844 (Ed. n.). NEGLIGENCE. Definition, 1, 10, 19. Negligence only where breach of duty, 2. Only where rights are equal, 4, 66, 96. "Slight," " ordinary" and "gross," 21, 22. Duties requiring ordinary care, 56-265. More than ordinary care, 266-455. Less than ordinary care, 455-458. ^ By owners of real property, 65-123, Of animals, 128-183. Of highways, 133-148. By corporations, 148-153. By masters, 153-251. By servants, 251. By public officers, 263. By trustees, 254-265. By owners of dangerous goods, 285-289. By gas companies, 289-291. By directors, 328-833. By carriers, 333-409. By innkeepers, 410-419. 712 INDEX. Seferences are to Pages. NEGLIGENCE — Cotainiied. By physicians, 419-427. By attorneys, 427-440. By bankers, 440-444. By stockbrokers, 444. By public officers, 445-466. No duty to anticipate negligence, 478. Fresumptions of negligence, 622. Bes ipsa loquitur, 522. Injuries cansing death — Damages for, 535. NEVADA. Actions for injuries causing death, 572 (Ed. n.).. Kailroad companies required by statute to fence tracks, 112 (Bd.n.). NEW HAMPSHIEB. Negligence of parents not imputable to child, 515 (Ed. n.). Action for injuries causing death, 589 (Ed. n.), 573 (Ed. n.). Burden of proof on defendant to establish plaintiff's contributory negligence, 471 (Ed. n.). Statutory duty of railroads to fence tracks, 112 (Ed. n.). Common carrier may limit liability, 344 (Ed. n.). NEW JERSEY. Comparative negligence denied in, 465 (Ed. n.). Action for injuries causing death, 573 (Ed. n.). Burden of proof on defendant to establish plaintiff's contributory negligence, 471 (Ed. n.). Negligence of parent not imputable to chUd, 515 (Ed. n.). Master must furnish safe appliances, 195 (Ed. n.). Common carrier may limit liability, 344 (Ed. n.). NEW MEXICO. Actions for injuries causing death, 574 (Ed. n.). NEW YORK. Comparative negligence denied in, 465 (Ed. n.). Master must furnish safe appliances, 196 (Ed. n.). Actions for injuries causing death, 539 (Ed. n.}, 675 (Ed. n.). ' Contributory negligence of owner of cattle straying on railroad track, 120 (Ed. n.). Burden of proof in actions of negligence, 473. Railroads required by statute to fence^ 112 (Ed. n.). Railroad company not responsible fpr consequential damages to stock straying on track, 118 (Ed. n.). Negligence of parent imputable to child, 514 (Ed. n.) . TABLE OP CITATIONS. 713 Beferences are to Pages. NEXT OP KIN. Actions for injuries causing death, for benefit of, 637 (Ed. n.), 511, 556 (Ed. n.}. niegitimate cliild, witliin meaning of statute, 6S6 n. NOMINAL DAMAGES. Not recoverable in actions for injuries causing death, 513. Becoverable in actions for injuries causing death in this country, 613 (Ed. n.), 651 (Ed. n.), 556 (Ed. n.). NON SUI JTJEIS. See Chilsbeit. NON-SUIT.* When court may direct, 19, 171 (Ed, n,), NORTH CABOLINA. Actions for injuries causing death, 676 (Ed. n,). Burden of proof j plaintifi must show negligence on part of defend- ant, and that he was without fault, 173 (Ed. n.). Common carrier may limit liability, 311 (Ed. n.). NOTARIES PUBLIC. Liable for protesting bill for non-payment before maturity, 151 (Ed. n.). For delaying demand of payment until after maturity, 151 (Ed. n.). For certifying acknowledgment without reading it, 151 (Ed. n.), 152 (Ed. n.). For delegating duties to another, 162 (Ed. n.). Though a notary, 152 (Ed.|n.). Bank generally not liable for neglect of notary, 152 (Ed. n,). See Public Officers. NOTICE. See, also, Enowledgb. Of nuisance, 101-108 (Ed. n.j. Of defective sewer, 306 (Ed. n.). Of defective condition of highway of corporation necessary to bind It, 317 (Ed. n.),321 (Ed. n.). Actual or constructive, 317 (Ed. n.}, 318 (Ed. n.). OfiBcers chargeable with, 320 (Ed. n.). May be inferred from character of defect or length of time it existed, 318 (Ed. n.). Under Employers' Liability Act, 237-210. By carrier of arrival of goods, 310 (Ed. n.). By carrier, limiting liabUity, 316 (Ed. n.), 365 (Ed. n.). NUISANCE. Liability of landlord to tenant for, 102, 106 (Ed. n.). Liability of landlord ^and tenant to third persons, 101, 102 (Ed. n.), 106 (Ed. n.;. 7 14 INDEX. References are to Pages. NUISANCE — Continued. Liability for nuisance in higliway, 33 (Ed. n.). Hackney coacli stand, 138 (Ed. n.) Collection of carts for reception of slops, 138 (Ed. n.). Fruit stand, 139 (Ed. n.). Brick wall of burnt building on edge of sidewalk, 139 (Ed. n.). Barrier with spikes in highway, 141 n. Market house, 138 (Ed. n.). Van and engine by side of road, 141 n. Water tank in center of street, 138 (Ed. n.). OBSTEUCTIONS. See Highways. OFFICER. See Pubuc Officer; Govbunmbnt Officbb; Notaries ' Public; Judges; Recorders; Clerks. OHIO. Action for injuries causing death, 639 (Ed. n.), 576 (Ed. n.). Consequential damages caused by change of grade of streets, 302 (Ed. n.). Burden of proof on defendant to establish plaintiff's contributory negligence, 473 fEd. n.). Railroad companies required to fence tracks, 112 (Ed. n.) . Negligence of parent not imputable to child, 614. Illegitimate child within meaning of statute giving actions for injuries causing death, 535 n, OKLAHOMA. Actions for injuries causing death, 677 (Ed. n.). OMNIBUS. Conductor of, not a " workman within Employers' Liability Act, 229. Racing, 204 n. Assaults on guards of, 203 n. ONUS. See Burden of Froof, 470 (Ed. n.). ORDINARY CARE. Neglect of duties requiring, 8 (Ed. n.), 14-19, 26, 66. Mutual benefit, 67. Employment of services for reward, 67. Bailee for hire, 67, 58 (Ed. n.). Skilled labor, 68. ORDINARY NEGLIGENCE. jS'ee Ordikart Cabb. ORDINANCE. Municipal corporation not liable for failing to pass or execute, 151 (Ed. n.). INDEX. 715 Beferesces ate to Pages. ORDINANCE — Continued. Beqniring owners to keep sidewalks clear ot snow and ice, 310 fEd. n.). OREGON. • Action for injaries causing death, 577 (Ed. n.). Plaintiff must show himself without fault and defendant negligent, 473 (Ed. n.). Railroad companies required to fence tracks, 112 (Ed. n.). Common carriers may limit liability, 341 (Ed. n.). * PARENT. See Children. Action by for loss of support, 538, 541 (Ed. n.) . Measure of damages in action for death of, 552 (Ed, n.). PARTNER. Attorney or solicitor liable for negligence of, 429, 433 (Ed. n.). PARTY WALL. Right to support, when title to adjoining parcels derived from common owner, 7 (Ed. n.). PASSENGER. See Railway Compant. PATENT AGENT. Negligence by, 440. PENALTY. Does not bar action, 323. PENNSYLVANIA. Comparative negligence denied in, 466 (Ed. n,). Rule as to burden of proof, 474 (Ed. n.) . Common carriers may limit liability, 344 (Ed. n.). Negligence of parent not imputable to child, 615 (Ed. n.). Action for injuries causing death, 539 (Ed. n.), 577 (Ed. n.). Next of kin not within provisions of statute giving right of action in case of death, 539 (Ed. n.}. Statute affecting railway company and employe, construction, 248, 250 (Ed. n.). Master must furnish safe appliances, 196 (Ed. n.). PERIL. Land-owner bound to keep certain things at, 83. Fire, 84, 85 (Ed. n.). Poisonous trees, 91. Dangerous substance, 83. Water, 92. Savage animal, 123, 125 (Ed. n.). 716 INDEX. Kefereuces are to Pages. PEESONAI. BEPEBSENTATIVBS. Action by for injuries to employes causing death, 243 (Ed. n.), et seq., 556 (Ed. n.), et seq. PHYSICIANS AND SURGEONS. Neglect of duties by, 419. — Veterinary surgeon, 420 (Ed. n.j. Could not at common law recover tbeiriees, 420, 422 (Ed. n.) . Unless there was a special contract, 420, 432 (Ed. n.) . A surgeon might recover fees or a physician acting as such, 420. American rule, 422 (Ed. n.). Liability for negligence, 420, 422 (Ed. n.). Physicians acting gratuitously, 420, 421, 423 (Ed. n.). A surgeon not an actual insurer, 421, 423 (Ed. n.). Must show proper degree of skill, 421, 423 (Ed. n.). Unqualified person acting as physician, 421, 422. Non-expert liable for gross negligence, 422 (Ed. n.), 424 (Ed. n.). Physician taking unprofessional man to attend a confinement case, 422 (Ed. n.}. Physician does not undertake to exercise highest degree of skill, 421, 422, 423 (Ed. n.). ' Not liable for honest errors of judgment in doubtful cases, 423 (Ed. n.). — Criminal liability — Physician acting in good faith not criminally liable for death of patient, 424 (Ed. n.). Unless he apts recklessly, 424 (Ed. n.). Standard of skill not measured by school of practice to which he belongs, 424 (Ed. n.). Varies in different localities and at difEerent times, 424 ^d. n.), 425 (Ed. n.). According to the character of the disease and temperament of patient, 426 (Ed. n.). — Contributory negligence — Patient falling to cany out instructions of physician, 426 (Ed. n.). Aggravation of disease by improper treatment of those in charge, . 4^6 (Ed. n.). Action against firm of physicians for malpractice, 426 (Ed, n.). PLATFORM. Riding upon platform of cars, 62 (Ed. n.), 376 (Ed. n.). Railway companies must keep platform in safe condition, 394 (Ed. n.). Liable for Injuries caused by defective platforms, 394 (Ed. n.). For failure to keep them clear of snow and Ice, 394 (Ed. n.), 395 (Ed. n.). INDEX. 717 References are to Pages. POISON. Liability of vendor to third person for sale, 11, 13 (Ed. n.). As between vendor and vendee, vendor not liable for omission to label drug when he had trarned vendee of Its dangerous character, 13 (Ed. n.). Poisonous trees on land, 91. POLICE. Municipal corporation not responsible for torts of, 152 (Ed, n.). POSTMASTER. Not liable for negligence of subordinates, 460 (Ed. n.). POVERTY AND WEALTH. In actions for injuries causing death, evidence of pecuniary condi- tion of deceased's family, 564 (Ed. n.). Of pecuniary condition of defendant, 564 (Ed. n.). PREMISES. See Land and Railway Companies. PRESCRIPTION. Right to support of buildings required by, 6 (Ed. n.). PRESUMPTION OF NEGLIGENCE. That defendant will act with ordinary care, 478. That plaintiff will act with ordinary care, 478. Besipsa loquitur, 522, 526 (Ed. n.). Change of course of action presumes negligence, 523. Unusual occurrence, 623, 624 (Ed. n.). Accident must be connected with defendant, 524. Cases resting in contract — Happening of accident pn'tna/aci'e evi- dence of negligence, 524 (Ed. n.), 526 (^Ed. n.). PRIMA FACIE EVIDENCE. Evidence of negligence, happening of accident In cases resting in contract, 526 (Ed. n.;. PRIVITY OF CONTRACT. See Contbact. PROFESSION OF SKILL. See Phtsicians, Attorneys. PROMOTERS OF COMPANIES. Liable for negligence, 333. PROPERTY. See Land. PROXIMATE AND REMOTE CAUSE. The damages must be the ordinary or probable consequence of the negligent act, 3, 26. * Illustrations, 26, 37. Where there are several proximate and efficient causes contributing 718 , INDEX. References are to Pages. PROXIMATE AND REMOTE CAtTSE — Continued. to an injury it cannot necessarily be attributed to one without wlioBe operation it would not bave happened, 28. Remote cause — Illnstrations, 34-37 (Ed. n.). Intervention of third person — If the negligence of defendant would not hare caused the injury, but for the Intervening negli- gence of a third person, defendant will not be liable, 28, 37-39 (Ed. n.). Intervention of plaintiff — Contributory negligence, 39 (Ed. n.). Accidental Injury in escaping from sudden peril, 39 (Ed. n.). Unskillful treatment of physician or surgeon, when no defense, 39 (Ed. n.). That plaintiS was engaged in violating the law at the time of the injury does not necessarily bar his right of recovery, 39 (Ed. n.). Intervention of defendant, 40 (Ed. n.). Intervention of the forces of nature, 28, 29, 41 (Ed. n.). Injuries from exposure to the weather in consequence of defendant's negligence, 41 (Ed. n,). Tendency to disease — the aggravation of the injury by reason of a tendency to disease, no defense, 43 (Ed. n.}. Fires negligently started and carried by force of the wind or other natural agency to property, 45 (Ed. n.}. Illustrations, 45, 47 (Ed. n.). The doctrine of Ryan v. N. T., etc., R. Co., and Fenn. R. Co. v. Eerr, disapproved, 46 (Ed. n.). Act of God, when a defense, 28, 29, 41 (Ed. n.), 47 (Ed. n.). Act of God — where goods to be transported by common carriers are delayed through their negligence and afterwards destroyed by act of God, the delay- is not the proximate cause of the loss, 47 (Ed. n.). Where an unforeseen cause combines with defendant's unlawful act in producing the injury defendant will be liable, 48 (Ed. n.). Intervention of time or space, 28. Of injuries in highways, 323 (Ed. n.). PUBLIC CATERER. Liable for selling unwholesome food, 418 (Ed. n.). PUBLIC COMPANIES. See Dirbctors op Public Companibs. PUBLIC OFFICERS. See Judges; Shbkifps; Clerks; Notaries Public; Recorders, Etc. Neglect of duties of, 253, 445. Where duties are ministerial, liable for negligence, 445, 449 (Ed. n.). What duties ministerial and what judicial, 445 n, 449 (Ed. n.), 450 (Ed. n.j. INDEX. 7iy Beferences are to Pages. PUBLIC OFFICERS — Continued. Bound to exercise care in selecting snbordinateB, 446, 450 (Ed. n.)- Officers of government not responsible tor negligence of deputies or snbordinates, 446, 450 (Ed. n.). Postmasters, 450 (Ed. n.). Mail contractors, liability for negligence of agents, 450 (Ed. n.), Iiiability of pnblic officer for negligence, 445, 449 (Ed. n.). Notaries pnblic, liability, 448, 460 (Ed. n.), 451 (Ed. n.). Sheriffs, duties ministerial, liability for negligence, 448, 453 (Ed. n.). Measure pf damage for sheriff's negligence, 455 (Ed. n.). Election officers, 450 (Ed. n.) . Clerks of courts, recorders, 450 (Ed. n.). Judges, 449 (Ed. n.),451 (Ed.n.). Magistrates, 451 (Ed. u.), 455. PUNITIVE DAMAGES. In actions for injuries causing death, 544 (Ed. n.). QUESTIONS OF LAW AND FACT, See Law and Fact. EAILWAY COMPANIES. Common carriers, 333, 336 (Ed. n.). Act of God, 333, 336 (Ed. n.). Public enemy, 338 (Ed. n.J. Carrier's Act, 1830, 334. Inherent defect in goods, 338 (Ed. n.). Arrival of goods at destination, 340 (Ed. n.), 334. Discrimination in rates, 339 (Ed. n.). Tender of reasonable sum for carriage, 342. Limiting liability by contract, 342, 344 (Ed. n.), 346 (Ed n,). Posting notices, 342, 345 (Ed. n.), 347 (Ed. n.). Railway and Canal Traffic Act, 1854, 349. Reasonable conditions, 343, 347 (Ed. n.). Unreasonable conditions, 347, 348 (Ed. n.). Carriage of horses, 348. Live stock, carriage of, 349, 361 (Ed. n.), 354 (Ed. n.). Damages, 353 (Ed. n.), 356. Conditions affecting transportation of, 354 (Ed. n.), 355 (Ed. n.). Delay, caused by strikes, riots, 356 (Ed. n.). Damages for loss of or injury to goods, 356, 358 (Ed. n.). Forwarding goods beyond line, 358, 359 (Ed. n.). Not liable beyond its own route, 359, 360 (Ed. n.). Liability may be varied by contract, 361. — Baggage, 361, 363 (Ed. n.). Carriers insurers of, 361, 363 (Ed. n.). 720 INDEX. Beferences are to Pages. RAILWAY COMPANIES — Continued. , Condition that no baggage shall be taken, 362. Baggage deposited in cloak room, 363. Passenger retaining control over, 362. Liability extends to receiving and delivering — liability as ware- . housemen, 363, 367. Limiting liability for passengers' baggage, 363. Notices on tickets, 36S (Ed. n.). Arrival of baggage, 366 (Ed. n.). — Passengers — BaUway companies not Insnrers of, but liable for negligence, 367, 371-373 (Ed. n.). Bound to exercise highest degree of care and vigilance, 379, 373 (Ed. n.). Bound to construct their works to resist ordinary storms. Not liable for latent defects not discoverable by best knovra tests, 374 (Ed. n.). Not bound to provide against unforeseen causes, 374 (Ed. n.). Liability of company having running powers, 371 et seq. Of lessor and lessee company tor negligence, 371 (Ed. n.). Duty as carrier arises out of contract, 368. Election of passenger to sue in contract or tort, 368. Whether master can sue when servant is injured, 368. — Contributory negligence of' passenger, 375 (Ed-n.), 388 (Ed. n.). Boarding moving train, 53 (Ed. n.), 375 (Ed. n.). Biding on platform of car, 52 (Ed. n.), 376 (Ed. n.). Biding on platform of street car, 62 (Ed. n.}, 376 (Ed, n.). Projecting arm from window, 52 (Ed. n.), 378 (Ed. n.). Alighting from moving train, 54 (Ed. n.), 378 (Ed. n.), 379 (Ed. n.}. Calling out name of station, 379 (Ed. n.), 399. Opening and shutting doors, 38^, 400. Riding in baggage car, 381 (Ed. n.). Riding on freight train, 383 (Ed. n.). Riding on engine, 382 (Ed. n.). — Free passengers — Injuries to, 384 (Ed. n.). Liability same as to passengers for hire, 384 (Ed. n.). Drover traveling on free pass, 384 (Ed. n.). Express agents, 385 (Ed. n.). Postal clerks or mail agents, 385 (Ed. n.). "Passes purely gratuitous, 385 (Ed. n.}, 388 (Ed, n.). Distinction as to liability in case of gross and ordinary negligence, 385 (Ed. n.). Passenger assuming risk of accident, 886 (Ed. n.) , Employe riding to and from his home on free pass, 387 (Ed. n.). Newsboy selling papers on train, 388 (Ed. n.). One voluntarily assisting express agent, 388 (Ed. n.) . INDEX. 721 Beferences are to Pages. EAILWAT COMPANIES — Continued. — Use of premises — Negligence if something nnosnal happens, 388, 391 (Ed. D.), 396. Invitation upon premises, 390, 893 (Ed. n.). Absence of signals, 390 n. Constmction ot works, 391 (Gd. n.), 392. Bailway companies mnst provide reasonable accommodatlans at stations for passengers, 393 (Ed. n.). Most keep platforms and approaches in safe condition, 394 (Ed. n.). Iilable for injuries caused by defective platforms, 391 (Ed. n.). For failure to keep them clear of snow and loe, 394 (Ed. n.), 395 (Ed. n.). For failure to properly light, 396 (Ed, n.). They do not owe the same care to Ucensees, 395 (Ed. n.). But their obligation extends to those having boainess with the com- pany, 395 (Ed. n.), 396 (Ed. n.). Mnst make platforms of snfiBcient width, 396 (Ed. n.). Injary to hackman at depot,-396 (Ed. n.). To passenger struck by mail bag thrown from a mail car, 396 (Ed.ji.) . To one who went to depot to meet his wife on incoming train, 396 (Ed. n.), 397 (Ed. n.). — Use of trains and carriages, 397 (Ed. n.}, 399 (Ed. n.). Injnry to passengers by fall of dothes-wringer in rack over seat, 397 (Ed, n.). Injury by door-jamb, 40O, 401 (Ed, n.). Overshooting platform, 400. — Bailway fences. See Ebncbs. — Bailway flres. See Firbs. — Bailway crossings — Bailway companies not required to fence at crossings of public streets or towns, 91, 113 (Ed. n.). At highway crossings, 91, 113 (Ed. n.). At private roads connecting with public highways, 115 ^Ed. n.). Not liable for obstruction or diversion of surface water, 95 (Ed.n.). One approaching must look and listen for trains, SO (Ed. n.), 498. Negligence per se to drive over in view of approaching train$, ^1 (Ed. n.), 498 (Ed. n.). Duty of driver of vehicle, 51 (Ed. n.), 499 (Ed. n.). Omission to ring bell or sound whistle, 501 (Ed. n.). Does not excuse traveler from looking or listening, 501 (Ed. n.). Though train is running at a dangerous and unlawful rate of speed, 502 (Ed. n.). It is not material that one did not look or listen, if he could not have seen or heard the train, 502 (Ed. n.). It is no excuse that he was deaf and could not hear, 602 (Ed. n.). Or blind, 503 (Ed.n.). 46 722 INDEX. Beferences are to Pages. KA.ILWAT COMPANIES — Continued. Or intoxicated, 603 (Ed. n.). Whether intoxication is contributory negligence nsnally for the jury, 503 (Ed. n.). The rule is different in case of children of tender years and the old or infirm, 603 (Ed. n.). Towards them railroad companies owe a greater degree ot_care, 603 (Ed. n.), 504 (Ed. n). Omission to give signals must be proximate canse of injnry, 501 (Ed. n.). — Flagmen at — No legal obligation in absence of statnte to keep flagmen at crossings, 604 (Ed. n.). Invitation to cross, 604 (Ed. n.), 506 (Ed. n.). Withdrawal of flagman whore he is nsnally kept at crossing negli- gence, 505 (Ed. n.) . Daty of traveler when crossing is dangerons, 506 (Ed. n.). Where view of track isobstrncted, 505 (Ed. n.), 506 (Ed. n.). Daty of company, 606 (Ed. n.). — Trespassers — Walking on track, 51 (Ed. n.). Stepping in front of locomotive, 61 (Ed. n.). t Lying on track, 52 (Ed. n.). Crawling tinder train, 62 (Ed. n.). Stiipper should give notice of dangerous goods, 287 (Ed. n.). Bailroad companies held under no obligation towards trespassers, 618 (Ed. n.). They owe greater care toward children than adults, 518 (Ed. n.) . — Employes — Assume the risks of service, 164, 167 (Ed. n.). Must repair bridges over highways, 143. Injuries by low bridges while standing on top of cars, 168 (Ed. n.). Out of the line of employment, 168 (Ed. n.). When employe is ignorant of dangerous character of structure, 168 (Ed. n.), 170 (Ed. n.). Engineer killed by signal post, while leaning out of engine, 171 (Ed. n.). Brakeman on moving freight train struck by telegraph pole, 171 (Ed. n.). Brakeman and car couplers assume the risk of injuries in coupling cars, 172 (Ed. n.). When loaded with projecting timbers, 172 (Ed. n.). Employe put into more dangerons business against protest, 172 (Ed. n.). Bemaining in. service with knowledge of risk, 172 (Ed. n.). Promise by master to repair defect, 494 (Ed. n.). Liability for injuries sustained by defective cars, 176 (Ed. n.). By defective cars of other companies, 161 (Ed. n.)- INDEX. 723 References are to Pages. RAILWAY COMPANIES — Continued. Company boand to Inform employe of extraordinary risks, 161 (Ed. D.), 166 (Ed. n.). Waiver of right of action for injnries, 166. Employe riding to and from Ms liome on free pass, 387 (Ed. n.). — Statutes — Afiecting rights of railroad employes, 225, 243, (Ed. n.). iSiee S1.EBFING Car Coufant Stock. BEAL PBOPERTT. Neglect (rf owners and occnpiera of, 65, 274. Owners and occupiers required to nse more than ordinary care, when, 274, 275 (Ed. n.). See Land, Etc., Ownebs of. RECOBDEKS. Liability for negligence, 452 (Ed. n.). Of depnties, 452 (Ed. n.). Searching for liens, liability, 453 (Ed. n.). Extends only to the party who employs them, 453 (Ed. n.). RELEASE. Of right of action by servant for injuries, 166, 173 .(Ed. n.). REMEDY. Of adjoining owner, 8 (Ed. n.). REMOTE CAUSE. See Proximatb and Rbhotb Cause, 30, 31 (Ed. n.). RES IPSA LOQUITUR. In real property cases, 276. Change of course of action presumed negligence, 522, 523. Unusual occurrence, 523, 624 (Ed. n.), 526. Things left to get out of order, 524. Cases resting in contract, happening of accident prima fade evi- dence of negligence, 526-529 (Ed. n.). Cases not resting in contract, 526 (Ed. n.), 533 (Ed. n.). Rule not applicable to relation of contract or, 626, 633 (Ed. n.). RESPONDEAT SUPERIOR. Bee Mastbb and Skbvant and Mitnic- IFAL Cobpobation. RHODE ISLAND. Employer's liability statutes, 250 (Ed. n.}. Actions for Injnries causing death, 639 (Ed. n.), 578 (Ed. n). Burden of proof on defendant to establish plaintiff 's contributory negligence, 471 (Ed. n.). BIDING. See Law of the Boad. 724 INDEX. Beferences are to Pages. BIDING ON PLATFOEM OF CAB, 52 (Ed. n.), 376 (Ed. n.). Wben negligence per se, 62 (Ed. n.). With consent of brakeman, 62 (Ed. n.). When car is crowded, 62 (Ed. n.). No vacant seats, 376 (Ed. n.). ^ When notice is posted up forbidding it, 62 (Ed. n.). On platform of street car, 376 (Ed. n.) . BOADS. See Highway, Law of the Boad. ROMAN LAW, Division of daties according to, 21, 22. RULE OF THE BOAD. See Law of thb Boad. SAFE DEPOSITABIES. Bonnd to ordinary care, 60 (Ed. n.). SCIBNTEB. . See Knowledgk. SEBVANT. See Master and Sebvamt. SEWEB. Municipal corporation not liable for defect in plan of, 304 (Ed. n.). For injuries caused by sewers of insufficient cajiaclty, 301 (Ed. n.). Liable for injuries caused by failure to repair or complete constmc- tionof, 305 (Ed. n.). SHERIFFS. Bonnd to exercise ordinary skill, 263, 463 (Ed. n.}. Liable for failure to levy execution, 463 (Ed. n.). For neglect to attach property, 453 (Ed. n.). For making insufficient levy of attachment, 453 (Ed. n.). For failure to return execution, 463 (Ed. n.). For making inadequate returns, 463 (Ed. n.). For failure to secure enough to satisfy requirement of writ, 453 (Ed. n.). For failure to collect amount paid for property at execution sale, 464 (Ed. n.). For money received which they neglect or refuse to pay over on demand, 454 (Ed. n.). For allowing prisoner to escape, 464 (Ed. n.). Not liable for refusing to issue execution which is not supported by a valid judgment, 454 (Ed. n.). For non-service npbn non-resident when directions of plaintiff were followed, 454 (Ed. n.). Not liable for failure to make levy of execution for fourteen days after it is received, 454 (Ed. n.). INDEX. 725 BeteMnces are to Pages. SHERIFFS — Continued. Liable for neglect of deputy to pay over money, 456 (Ed. n,). For default of deputy in making an improper return of a trrit, 455 (Ed. n.). Not liable for neglect of deputy when acting as deputy of succeed* ing sheriff, 455 (Ed. n.). Nor for unofScial act of deputy, 451, 455 (Ed. n.). Not insurer of sufficiency of sureties on replevin bond, 449. Measure of damages in action for failure to collect debt, 455 (Ed. n.). WrongftfUy levying in and selling personal property, 456 (Ed. n.>. SHOPS. Invitation to enter, 280 (Ed. n.). ' SIDEWALKS. Abutting owner liable for defective coal holes in 82 (Ed. n.). Municipal corporation liable for injuries caused by defects in, 306. (Ed. n.). Liable for defect in plan of construction, 306 (Ed n.3, 307 (Ed. u.)^ Lot owner not liable for injuries caused by defects in, 308 (Ed. n.}, 309 (Ed. n.). For injuries caused by accumulations of snow and ice, 309 (Ed.n.). Lot owner liable for injuries in respect to coal holes, etc., 309 (Ed. n.). Ordinances requiring owners or occupants to keep sidewalks cleac of snow and ice under a penalty constitutional, 310 (Ed. n.). Snow and ice in uneven and rounded form, 311 (Ed. n.). Mere sllpperiness of caused by accumulations of snow and ice, 311 (Ed. n.). Contributory negligence in walking over, 314 (Ed. n.}. Knowledge of defects, 314 (Ed. n.), 315 (Ed. n.). Passing over in dark, 314 (Ed. n.), 315 (Ed. n.), 316 (Ed. n.). Injuries received by deviating from, 316 (Ed. n.). Notice necessary to bold municipal corporation liable' for injuries caused by defects in, 317 (Ed. n.). ActuaLand constructive notice, 317 (Ed. h.), 320 (Ed. n.}. Officers chargeable with, 320 (Ed. n.). Evidence of other accidents at same place, 321 (Ed. n.). Proximate cause, 323 (Ed. n.}. SIGNS. Owner liable for injuries caused by fall of, 305 (Ed. n.). SKILL. Defined, 58. See More than Ordinary Care. 726 INDEX. Beferences are to Pages. SLEEPING CAR COMPANY. Not a common carrier, 401 (Ed. n. ) . Nor innkeeper, 401 (Bd. n.), 402 (Ed. n.). Distinction between and innkeeper, 402 (Ed. n.). Liability for loss of property, 403' (Ed. n.), 4P8 (Ed. n.). Liability for Injtiries, 408 (Ed. n.)._ Liability of railroad company, 409 (Ed. n.). Passengers riding on free pass Iiaving purchased drawing room ticket, 410 (Bd. n.), 411 (Ed. n.). Not liable for detention of train, 409 (Ed. n.). SLIGHT NEGLIGENCE. See Mork than Ordinary Care. SNOW. See Sidewalk. SOCIETY. Loss of, not an element of damages in actions for injuries causing deatli, 642. SOLICITOES. See Attornets. SOUTH CAROLINA. Common carriers may limit liability, -346 (Ed. n.). Comparative negligence denied in, 466 (Bd. n.). Burdeif is on defendant to prove plaintiff's contributory negligence, 471 (Bd. n.). Actions for injuries causing death, 679 (Ed. n.). SOUTH DAKOTA. Master must furnish safe appliances, 196 (Bd. n.). Actions for injuries causing death, 679 (Ed. n.). SPRING GUN. Liability for Injury to trespasser by, 80. One may protect his shop from burglary by setting up, 80 n, SQUIB CASE. Thrown from one to another proximate cause, 26 n. STAGE COACHES. Proprietors bound to provide roadworthy vehicles, 392, 393 (Ed.n.). Liable for defects discoverable upon minute examination, 393 (Ed. n.). STATUTES. , Allowing physicians to sue, 420, 422 (Bd. n.). Carriers* Act, 334. Employers' Liability Act, 226, 243 (Bd. n.). Judicature Act, 2S4. Lord Campbell's Act, 636. Act protecting innkeepers, 419. INDEX. 727 References are to Pages. STATUTES — Continued. Statute giving right of action to person injured by lelony, 518 CEd. n.). Bailway Act, 349. Act relating to dangerous goods, 288. Statutes requiring railroad companies to fence tracks, 110, 111, (Ed. n.), 113 (Ed. n.). Solicitor's Act, 439. Statutes affecting employer and employe, 225, 243 (Ed. n.). Bailway companies and employes, 226, 243 (Ed. n.). STATUTOET DUTIES. Corporations performing, 291. Plaintiff must show duty was for Ms benefit, 323. Injuries must be such as the statute contemplated, 323. STEPPING-STONE. City not liable for permitting on outer edge of sidewalk, 307 (Ed. n.). STOCK. See, iilso, Bailwat Comfanibs Ain>' Fence. Permitting stock to run at large, 106, 110. Liability of railway companies toward, 110. Bailway companies generally required to fence their tracks to pre- vent cattle straying, 110, 111 (Ed. n.). Construction of statutes requiring railroads to fence their tracks, 112 (Ed. n.), 113 (Ed. n.), 115 (Ed. n.). In Connecticut, 112 (Ed. n.). In Illinois, 112 (Ed. n.). In Indiana, 112 (Ed. n.). In Iowa, 112 (Ed. n.). In Kansas, 112 (Ed. n.). In Maine, 112 (Ed. n.). In Massachusetts, 112 (Ed. n.). In Michigan, 112 (Ed. n.). In Minnesota, 112 (Ed. n.). In Missouri, 112 (Ed. n.). In New Hampshire, 112 (Ed. n.). In New York, 112 ^d. n.). In Nevada, 112 (Ed. n.). In Ohio, 112 (Ed. n.). In Oregon, 112 (Ed. n.). In Utah, 113 (Ed. n.). In Vermont, 113 (Ed. n.). In Washington, 113 (Ed. n.). In Wisconsin, 113 (Ed. n.). Cattle guards required at'highway and farm crossings, 114 (Ed. n.). 728 INDEX. References are to Pages. STOCK — Continued. — Damages — Consequential damages for injuries to cattle, 118 (Ed. n.). Measure of damages the reduced value of the animal at the time of the kUling, 122 (Ed. n.). And for injury to stock, the difference between its value before and after the injury, expense of care, and temporary loss of use, 122 (Ed.n.). Exemplary damages not allowed unless injury iriUf ully inflicted, 122 (Ed. n.). Statutes authorizing double damages, 123 (Ed. n.). Providing for attorneys' fees, 123 (Ed. n.). Not allowed in Louisiana, 123 (Ed. n.). — Burden of proof — Of establishing negligence on plaintiff, 121 (Ed.n.). Fact of injury prima facie evidence of negligence in some States, 121 (Ed.n.). Plaintiff must prove that company was bound to fence at point of entry, 122 (Ed. n.). — Contributory negligence — Of owner allowing cattle to stray, 119 (Ed. n.). Does not prevent a recovery in some States, though animals are • rubnlng at large in violation of law, 119 (Ed. n.). Or straying on land which did not belong to owner, 119 (Ed. n.). Bule In New York, 120 (Ed. n.). In Indiana, 120 (Ed. n.). In Michigan, 120 (Ed. n.). Pasturing hogs in field with knowledge of defect in fence, 120 (Ed. n.). Turning " breechy " horse in field with knowledge of defective fence, 120 (Ed. n.). Bun over by trains, 463 (Ed. n.). STOCKBROKER. Neglect of duties by, Hi. STORM. See Act of God. STRANGERS. See Licensee, Trespasser. STREETS. iSee Highways. STRIKES. Liability of railroad companies for delays and damages by, 356 (Ed. n.). SUB-CONTRACTOR. See Contractor. INDEX. 729 Beferenees are to Pages* SUBJACENT SUPPORT. See Support. SUNDAY. Injuries received while traveling on, in violation of law, 10 (Kd. n.), 480 (Ed. n.). Laboring on Sunday, 480 (Ed. v.). Tlie rnle In Massachusetts and some New England States, 181 (Ed. n.). SUPPORT. Lateral and subjacent support, 6, 66-70. Owner has right to lateral support of natural soU from land of neighbor, 6. But not when burdened with buildings, 6. Right to support of buildings may be acquired by prescription, 6 (Ed. nO, 70 (Ed. n.), 69. This has been questioned, 7 (Ed. n.). Right to support where title to adjoining parcels is derived from a common owner, 7 (Ed. n.}. Right to lateral support not lost by placing buildings upon it, 7 (Ed. n.). There must be appreciable damage to entitle one to a right of action for removing lateral support, 7 (Ed. n.). Adjacent owner must exercise care and skill in excavating the soil, 7 (Ed. n.). He is liable if he conduct the work so negligently as to damage his neighbor, 7 (Ed. n.). He must give notice to his neighbor to enable him to protect his buUding, 8 (Ed. n.). He cannot escape liability for negligence by placing the work in the liands of a contractor, 8 (.Ed. n,). Where a duty is imposed upon him by statute, 8 (Ed. n.). — Remedy — The adjoining owner may bring an action for damages or enjoin the prosecution, of the work ot.excavation, 8 (Ed. n.). — Municipal corporation — The rightto the lateral support of the soU cannot be acquired by the abutting owner as against a city, 9 (Ed. n.). — Subjacent support — The owner of tjie surface is entitled to the right of support by the mine owner beneath, 9 (Ed. n.). But' not to the support of buildings upon the surface, 9 (Ed. n.). Right acquired by prescription, 6, 9 (Ed. n.). Right regulated by the terms of the grant, 9 (Ed, n.) . ' — Statute of limitations — begins to run from the time damage accrues, 9 (Ed. n.). Second subsidence of land caused by excavations fifteen years pre- vious — statute of limitations no bar to recovery of damages for, 9 (Ed. n.). 730 INDEX. Beferences are to Pages. SUPPORT — Continued. — Contribatory negligence — f ailare of owner notified of intended excavations to protect Ms buildings, 9 (Ed. n.) . Negligent construction of building, 10 (Ed. n.). Subsidence of land after execution of lease tg^ defendant authorizing him to take the minerals beneath the surface, 10 (Ed. n.). Measure of damages, 10 (Ed. n.). Effect of excavating negligently near a modem house, 6, 66, 69. Whether adjoining owner is answerable for negligence only in the exercise of his right to .use his own land, 67, 68. SURFACE WATER. See Water. SURGEON. See Fhtsicians and Surgkonb. TELEGRAPH COMPANY. Cannot relieve themselves by contract from liability for negligence, S91-69S (Ed. n.). Not liable for correct transmission of message beyond amount received unless message repeated at additional expense, 581 (Ed. n.). Negligence must be the proximate cause of the loss, S94 (Ed. n.). Reasonable regulations, 594 (Ed. n.) . Liability for negligence in transmission of cypher telegrams, 593 (Ed. n.V TENANT. See Landlord and Tenant. TENNESSEE. Rule as to comparative negligence in, 466 (Ed. n.) . Actions for injuries causing death, 640 (Ed. n.), 580 (Ed. n.). Negligence of parent not imputable to child, 515 (Ed. n.). Rule of mitigation of damages, 466 (Ed. n.). Common carriers may limit liability, 345 (Ed. n.). TEXAS. Comparative negligence denied in, 466 (Ed. n.). Actions for injuries causing death, 640 (Ed. n.), 680 (Ed. n.). Burden of proof on defendant to establish contributory negligence, 471 (Ed. n.). > Negligence of parent not imputable to child, 515 (Ed. n.). Exemplary dam,ages in actions for Injuries causing death, 544 (Ed. n.) Common carriers may limit liability, 346 (Ed. n.). THIRD PARTIES. Not privy to contract, liability for injury to, 11, 12 (Ed. n.). Intervening between cause and injoiy, 28. INDEX. 731 References are to Pages. THOROGOOD v. BRYAN, 507. TICKET, RAILWAY. Conditions upon, 365 (Ed. n.). TORT. Corporation can be guilty of, 293. Railway passenger can sue in tort or contract, 368. TOWN. No common-law obligation resting on New England towns to repair higliways, 135 (Ed. n.). Injury occasioned by defect in highway and some other cause, liabil- ity of town, 32 (Ed. n.), 33 (Ed. n.). TRAFFIC ACT. Railway and Canal Traffic Act, 349-352. TRAIN. What is nnder Employers' Liability Act, 234, 235. TRAP. Owner liable for, on premises, 79. TRAVELER. See Law of thb Road. TRESPASSER. No liability for injuries to, 74. Child falling in nncovered cistern at a distance from the highway, 76 (Ed. n.). Where one went into a factory Intended exclusively for workmen and was injured, 76 (Ed. n.). Where one in response to an alarm of fire ran through defendant's store and fell down an opening in the rear, 76 (Ed. n.}. Where a child of a t«nant of a tenement house got out on a fire escape and fell through a defective trap-door, 77 (Ed. n.}. Exceptions in cases of children where the danger is exposed, 77 (Ed. n.), 518 (Ed. n.), 520 (Bd. n.). Master or servant as, 252 (Ed. n.), 253. TRUSTEES. Neglect of duties by, 254-265. What is a trust, 254. Degree of care to be exercised by trustee, 255. Principal duties of, 257. Reducing property into possession within a reasonable time, 257. The safe custody of it, 267-263. The proper investment of it, 257, 263, 264, 265. The distribution of it, 265. 732 INDEX. References are to Pages. TURN-TABLES. lojaries to children by, 78 (Ed. n.), 519 (Ed. n.). ULTRA VIRES. Municipal corporation not responsible tori negligence of agents when their acts are not -within the scope ol its corporate powers, 119, 150. Private corporation cannot set np plea of, in action for negligence, 153. UTAH. Railroad companies required to fence. tracks, 113 (Ed. n.). , Action for injnries causing death, 582 (Ed. n). Negligence of parent not imputable to child, 615 (Ed. n.). VENDOR. Liability to third party for injury by sale of dangerous goods, 11, 12 (Ed. n.), 285, 286 (Ed. n.). VERMONT. Action for injuries causing deaths 5i0 (Ed. n.), 683 (Ed. n.}. ' Role as to burden of proof, 474 (Ed. n.). Negligence of parent not imputable to child, 615 (Ed. n.). Railroad companies required to fence tracks, 113 (Edi n.). Master must furnish safe appliances, 196 (Ed. n.). VICE-PRINCIPAL. Test whether one is felloe-servant or vice-principal, 190 (Ed. n.), 196 (Ed. n.) VINDICTIVE DAMAGES, 544 (Ed. n.). VIOLATION OF LAW. That plaintiff was engaged in violating law at time of injury does not necessarily bar his right of recovery, 39 (Ed. n.), VIRGINIA. Comparative negligence denied in, 466 (Ed. n.). Burden is on defendant to prove plaintifE's contribatory negligence, 471 (Ed. n.). Common carriers may limit liability, 345 (Ed, n.^. Action for injuries causing death, 583 (Ed. n.). Negligence of parent not imputable to child, 515 (Ed. n.) . Master must furnish safe appliances, 196 (Ed. n.). VISITOR. See iNvrrATiON, 62, 267, 279. See GuBST, 102. INDEX. 733 Beferences are to Pages. VOLUNTEEK. Volnnteer assistant, a fellow- servant, 186, 189 (Ed. n.). Minor son of railroad employe assisting fattier, 189 (Ed. n.)> Passenger on street car assisting driver at his request in pushing back car not a volnnteer, 189 (Ed. n.). Fasser-by asked to help, 186. Passenger assisting in getting tmnk ont of baggage car, 189 (Ed. n). Contributory negligence of volunteer, 189 (Ed. n.), 190 (Ed. n.), - Less than ordinary care required as tOj 157. WAIVEB. 'See Belbasb. Of light of action by employe by remsiining in service afterdiscoveiy of defect in machinery, 493 (Ed. n.). WABEHOUSEMAN. Liability of common carrier as, 340 (Ed. n.), 311 (Ed. n.), 367 (Ed. n.). WARRANTY. Of carrier, 61. Of seller of article, 61. , WASHINGTON. Action for injuries causing death, 540 (Ed. n.), 684 (Ed. n.). Burden is on defendant to prove plaintiff's contributory negligence, 472 (Ed. n.). WATER. Bringing water upon land, 92, 100. The doctrine of Fletcher v, Rylands, 92 n., 101. Surface water, common-law and civil-law doctrine, 93 (Ed. n.). Liability of municipal corporation for injuries from flow of surface water by change of grade of streets, 94 (Ed. n.), 302 (Ed. n.) . Of railroad companies for obstruction or diversion of flow of surface water, 95 (Ed. n.). Diversion of water, 94, 97 (Ed. n.). Pollution of wells, 97 (Ed. n.), 98 (Ed. n.). Percolating water, 97 (Ed. n.), 98 (Ed. n.). WELL. FoUution of, 97 (Ed. n.), 98 (Ed. n.). WEST VIRGINIA. Comparative negligence denied in, 466 (Ed. n.). Actions for injuries causing death, 584 (Ed. n.}. Burden of proof on defendant to establish plaintiff's contributory negligence, 472 (Ed. n.). 734 INDEX. Beferences are to Pages. WIFE. Action for injuries causing death, 5$6 (£d. n.), et seq. Contributory negligence of husband driving Trltli, imputable to, S12 (Ed. n.). WILLFUL. Intentional or willful, 3. WINDOW. Projecting arm from car window, 378 (Ed. n.). WISCONSIN. Employers liability statutes, 261 (Ed. n.). Comparative negligence denied in 466 (Ed. n.). Common carriers may limit liability, 31,5 (Ed. n.). Action for injuries causing death, 610 (Ed. n.), 686 (Ed. n.;. Burden of proof on defendant to establish plaintifi's contributory negligence, 472 (Ed. n.). Railroad companies required to fence tracks, 113 (Ed. n.). Master must furnish safe appliances, 196 (Ed. n.). WEONG-DOER. Abatement of action by death of, 647. WYOMING. Action for injuries causing death, 685 (Ed. n.), 586 (Ed. n.).