Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019294069 COMMENTARIES ON THE LAW OF NEGLIGENCE IN ALL RELATIONS [INCLUDING A COMPLETE REVISION OF THE AUTHOR'S PREVIOUS WORKS ON THE SAME SUBJECT] BY.. SEYMOUR D. THOMPSON, LL. D. IN SIX VOLUMES Volume I INDIANAPOLIS THE BOWEN-MERRILL COMPANY 1 90 1 UOPYRIGHT 1901 By Seymour J). Thompsom THE HOLLENBECK PRESS INDIANAPOLIS TO THE HONOEABLB ROBERT ARMYTAGE BAKEWELL, LL. D., sombtims judge of the saint louis court op appeals, in recognition of his great and varied learning, his exalted public and private character, and the laborious fidelity with which he discharged an important public trust, this work is affectionately inscribed by his former associate, The Author. PREFACE The author's professional brethren will bear him out in the state- ment that he has not troubled them with frequent editions of his works on the law. His first published work of a legal nature was issued in the year 1870 ; and now, after a lapse of thirty-one years, his first work which is called "second edition," appears. But this is really not a second edition of any previous work; it is called second edition only to prevent its being confused with his old work on Negli- gence, published in the year 1880. That work, it will be remembered, was prepared on the model of Smith's Leading Cases, which enjoyed for a time, in a great degree, the favor of the profession. The author is now convinced that the treatise form, so-called, is the best form in which to present legal doctrines and their applications, — the same being substantially the form and style employed by a judge in writing an opinion. The author's original work on Negligence was soon after followed by a work on Carriers of Passengers, constructed on the same plan. All the materials in the last named work which are thought to be worth preserving are, in like manner, embodied in the present work, and form the basis of the extensive title on Carriers of Passengers in Volume III. The author's original work on the law of Negligence excluded, for the most part, the subject of Negligence springing out of contractual relations. In the present work the subject is presented in all its rela- tions, including, in addition to the subjects embraced in the former work, the very important subjects of the Negligence of Carriers of Passengers ; of Negligence in Navigation, including collisions between Vessels, Towage, Loss or Damage of Cargo, and Pilotage. Nor will he overlook such titles as the Negligence of Lawyers; of Physicians and Surgeons; of Bankers; of Collecting Agents; of Examiners of Land Titles; of Trustees; of the Directors and Officers of Corpora- tions ; and, generally, of Persons or Corporations who voluntarily un- dertake, for a reward, the performance of services for the public dis- tributively. The subject of Carriers of Goods involves so many ques- tions of mere commercial law that it is not intended to treat it in this work, except with strict reference to the negligence of such bailees. (v) ■n PREFACE. In carrying out this very extensive programme, it is supposed that six volumes, each containing the very great amount of matter con- tained in this first volume, will be required. A contrast between the present and the preceding work will be discovered in the fact that in the preceding work about 5,300 cases were cited, all told, including those cited in the briefs of counsel, and in the opinions of the judges in the cases which were reprinted in full ; that the cases collected in the author's work on Carriers of Passengers swelled this number to about 6,500 ; whereas, it is supposed that in the present work not less than 35,000 cases will be cited. The amount of matter printed in this first volume alone is equal to that printed in the two volumes of the old work, and the number of cases cited in this volume, while not accu- rately known, is believed to be quite double the number cited in the old work. The issuing of the work in so many volumes has not been a matter of choice, but of necessity, both with the author and his publishers. It was originally intended to issue it in three volumes ; but when the work had advanced considerably toward completion, it was discovered that it would be impossible to carry out this programme without throwing av/ay large portions of the material which had been collected, slighting maiij" i)ranches of the subject, and ignoring entirely the de- cisions of many of the courts. After a full consideration of the sub- ject, it was determined not to take this course, but to use all the mate- rial which the author had collected, treating the decisions of all the courts fairly, suppressing none, but condensing the whole as far as might be compatible with good statement and clear illustration, and employing such type and extending the volumes to such size as would insure the carrying out of the entire programme within the compass of six volumes. It is too early for the author to furnish an accurate analysis of the whole work, such as is given in the first volume of his work on Corpo- rations ; but it may be said that Volume I, now presented to the profes- sion, and which speaks for itself, embodies general statements, dis- cussions and illustrations of the leading doctrines of the law of negli- gence, together with the applications of those doctrines in the more usual relations; that Volume II relates entirely to the negligence of Eailway Companies and Telegraph Companies, excluding the negli- gence of railway companies as Carriers of Passengers, and the negli- gence of such companies in the relation of Master and Servant; that Volume III will deal with the great titles of the negligence of Carriers of Passengers, both by land and sea, with the negligence of Municipal Corporations, and with the negligence of Public Officers; that Volume IV will be devoted entirely to the great title of negli- PREFACE. VH gence in the relation of Master and Servant ; and that Volume V will be entirely devoted to the Negligence of Carriers of Goods, and to sub- jects which may be classified under the general heads of Remedies, Procedure, and Damages. This volume will take up the subject of actions for damages for injuries resulting from negligence, and will follow those actions through every step of procedure, including Plead- ings, Evidence, Questions of Law and Fact, Instructions to Juries, the Measure and Quantum of Damages, and Damages in case of negli- gent acts or omissions resulting in Death. It is hoped that this vol- ume will prove of the greatest practical usefulness to lawyers in their every-day work. The sixth volume will deal with subjects not other- wise included in the preceding volumes, and will include an exhaustive index and a table of the cases cited in the entire work. Circumstances may vary this programme slightly, but the work has advanced so far toward completion that the author and publishers feel able to assure the profession that it will be substantially carried out. If the reader discovers any want of propriety in this arrangement of titles, he should ascribe it to the necessity of matching out volumes of nearly equal size without splitting any title between different volumes. In citing cases which were printed in full as leading cases in his former work on Negligence, the author has added references to that work, for the reason that many copies of it are in the hands of the profession, — as, for example: "Eerwhaker v. Cleveland &c. R. Co., 3 Ohio St. 173; s. c. 1 Thomp. Neg. (1st ed.) 472." For the same reason, the same course has been pursued in citing cases which were printed in full in the author's work on Carriers of Passengers. In citing the Pennslyvania State Eeports, the author retains the abbrevi- ation "Pa. St.," for the sake of uniformity with his previous works, al- though the shorter method of citing them as "Pa." has of late come into vogue. Since the publication of the series of English reports known as the "Law Eeports," one division of which is designated as "Law Eeports, Queen's Bench," abbreviated, for example, as "L. E. 5 Q. B.," and later as "Queen's Bench Division," abbreviated as "Q. B. Div.," or "Q. B. D.," — the practice of citing the new series of the re- ports of Adolphus & Ellis as "Queen's Bench," abbreviated to "Q. B.," has frequently led to confusion. The author has therefore adopted the practice of citing the last named reports "Ad. & El. (N. S.)." It is generally a pleasure to an author, and it certainly is his duty, though not always fulfilled, to make a public recognition of his indebt- edness to those that have rendered him valuable intellectual service in the prosecution of his labors. It is too early for the author to return this debt of thanks in this preface, but he hopes to do it fully in a note to the concluding volume. For the present, he limits himself to saying VIU PREFACE. that Mrs. Thompson has rendered him the same faithful, tireless and intelligent assistance which she has rendered him in the preparation of all his previous works on the law ; and that Mr. Berkeley C. Austin, of the New York City bar, has revised the title on "Eailway Injuries to Animals," originally written (with some revision by the author) by Mr. William L. Murfree, since and now professor of law the Univer- sity of Colorado. In the preface to the seventh volume of the author's work on Cor- porations, it became his pleasant duty to return thanks to Mr. Stephen C. Betts, the librarian of The Law Library in Brooklyn, in which that volume was written, and to Mr. Alfred J. Hook, his assistant libra- rian, as well as to the official committee having the library in charge, for many acts of courtesy and kindness extended to him. Since then Mr. Betts has died, and Mr. Hook has been appointed his successor. Mr. Betts was one of the very best law librarians in the country. He understood, as no other person did, the standing and value of the various works in the vast collection which he had built up by an assiduous attention and careful supervision extending over many years. It is now the author's pleasant duty to return thanks to Col. James D. Bell, of the Brooklyn bar, chairman of the board of trustees of The Law Library in Brooklyn ; to Mr. Hook, the present librarian, and to his associates, for many acts of courtesy and kindness extended to the author and. to his assistants while using their library. A provisional index to each volume will be made by Mr. Prank L. Littleton, a professional gentleman of experience and skill in such matters ; but these special indexes will not, of course, take the place of the elaborate general index which will conclude the whole work. SEYMOUB D. THOMPSON. 35 Nassau Street^ New York City, April, 1901. CONTENTS OF VOLUME ONE. TITLE ONE. GENERAL FBINCIFLES AND THEOBIES. Chapter I. Wegligence in General, §§ 1-15. II. Degrees of Care and Negligence, §§ 18-26. III. Other Doctrines and Theories, §§ 38-39. CHAPTEE I. negligence in" general. Section 1. What is negligence? 2. The failure to exercise the prescribed degree of care. 3. Negligence predicated only on a failure of legal duty. 4. How the duty of taking care arises. 5. Failure to perform duties assumed by contract. 6. No contractual relation necessary to support It. 7. Distinction between a failure of duty through carelessness, and through wantonness. 8. Negligent ignorance: failure of the duty of finding out and knowing. 9. No liability for doing a lawful act in a lawful manner and without negligence. 10. Negligence per se, or statutory negligence. 11. Doctrine that the violation of a statute is no more than prima facie evidence of negligence. 12. "Whether violations of such statutes give rise to a private action, or only to a public prosecution. 13. "When such statutes do not exclude common law remedies. 14. Casus: inevitable accident — injuries proceeding from sources for which neither party is responsible. 15. Demonstrative evidence of negligence — res ipsa loquitur, (ix) CONTENTS OF VOLUMK ONE. CHAPTER 11. DEGREES OP CARE AND NEGLIGENCE. Section 18. Degrees of negligence. 19. Judicial expressions as to the degrees of negligence. 20. Gross negligence not equivalent to "willful" or "wanton" negligence. 21. Only two kinds of negligence, negligence and willful negligence. 22. What is "willful" or "wanton" negligence. 23. Actionable negligence is usually the failure to exercise reasonable or ordinary care. 24. Instructions as to ordinary care which have been condemned. 25. Actionable negligence is the failure to exercise that measure of care which is proportioned to the danger to be avoided. 26. Illustrations of this principle. CHAPTER III. OTHER DOCTRINES AND THEORIES. Section 28. The law regards only the failure to avoid injuries such as should have been foreseen or anticipated. 29. Duty to use care to avert from another the consequences of his own negligence. 30. Whether evidence of custom is admissible on the question of negli- gence. 31. Further of the value of custom and usage upon the question whether ordinary care has been exercised. 32. Custom considered where no absolute standard of diligence fixed by law. 33. Negligence in connection with fraud. 34. Where one of two innocent parties must suffer, etc. 35. Further of this subject. 36. Negligence of children. Insane persons, etc. 37. Negligence of Intoxicated persons. 38. Corporations can not escape liability for negligence under the plea of ultra vires. 39. Liability of joint owners, joint agents, etc. CONTENTS OF VOLUME ONE. XI TITLE TWO. FROXIICATE AND BEIffOTE CAUSE. Chapter IV. General Doctrines, §§43-86. V. Illustrations of these Doctrines, §§ 91-145. Aet. I. In the Case of Highway Accidents, . . §§ 91-104. Art. II. In the Case of Eailway Accidents, . . §§ 107-122. Art. III. In Various Other Cases, §§ 125-145. VI. Eemote Causes of Physical Injuries, ....§§ 149-157. VII. Questions of Procedure Involved in the Subject of Proximate and Eemote Cause, §§ 159-164. CHAPTEE IV. GENERAL DOCTRINES. Section 43. What is cause? 44. No recovery unless the negligence was the proximate cause of the in- jury. 45. Burden of proving this rests on the plaintiff. 46. No contributory negligence bars a recovery, which was not a prox- imate cause of the injury. 47. Judicial dicta with reference to the doctrine of proximate and remote cause. 48. Proximate cause not always the nearest agency in time or space. 49. A cause which is not interrupted by an intervening cause. 50. Proximate cause is probable cause: remote cause is improbable cause. 51. Although there may have been an intervening train of causes which ought to have been foreseen. 52. Especially where such intervening causes were put in motion by the original wrongful act. 53. Illustrations of the interposition of causes deemed to have been set in motion by the original wrong-doer. 54. Unless some independent, responsible cause supervenes. 55. Further of intervening negligence of independent responsible agent. 56. Aiid provided the first cause was such that but for it the injury would not have happened. 57. And always provided that the result ought to have been foreseen. 58. Or provided the Intervening causes might have been foreseen. 59. But not necessary that the injury, in the precise form, should have been foreseen. 'iO. Qualification in case of direct trespasses. Xll CONTENTS OF VOLUME ONE. Section 61. Illustrations of the intervention of independent responsible causes. 62. Further illustrations of this principle. 63. Still further illustrations. 64. Intervening innocent act of the person injured. 65. Intervening negligence of the person injured. 66. Intervening negligence of physicians, surgeons or nurses, in treating person injured. 67. Other intervening acts of person injured which do not relieve the original wrong-doer. 68. Combined result of negligence and accident. 69. Injury from several causes, for all of which the defendant is re- sponsible. 70. Combined result of negligent or wrongful act and extraordinary or unforeseen cause. 71. Illustrations of this principle. 72. Combined result of act of defendant and "act of God." 73. Negligence of the defendant concurring with the "act of God." 74. Prior negligence of the defendant and subsequent "act of God." 75. Concurrent negligence of two persons injuring a third. 76. Rule where it is impossible to apportion the damage between the wrong-doers. 77. Exception to this principle involved in the doctrine of imputed negli- gence. 78. Other exceptions, 79. No contribution between parties whose concurrent negligence injures a third person. 80. Accidental injury in escaping from apparent sudden peril produced by negligence of another. 81. Illustrations of this principle. 82. Collateral unlawful act does not bar a recovery. 83. Unlawful act directly contributing to the accident bars recovery. 84. Rule where one of two innocent persons must suffer from the fraud or fault of a third person. 85. Defendant's negligence proximate, plaintiff's negligence remote. 86. Cases illustrating this principle. CHAPTER V. ILLUSTRATIONS OF THESE DOCTRINES. Art. I. In the Case of Highway Accidents, §§ 91-104. Art. II. In the Case of Railway Accidents, §§ 107-123. Art. III. In Various Other Cases, §§ 135-145. Article I. In the Case of Highway Accidents. Section 91. Rule illustrated by wrongful acts frightening travellers' horses. 92. Rule illustrated by defects in highways frightening travellers' horses. CONTENTS OF VOLUME ONE. XUl Section 93. What defects in highways are the proximate causes of injuries in cases of horses taking fright. 94. What defects in highways are not the proximate causes of injuries in cases of horses taking fright. 95. Other illustrations of travellers' horses taking fright. 96. Other Illustrations in cases of horses taking fright. 97. Other horse-frightening illustrations. 98. In case of collisions on the highway. 99. In case of injuries from defects and obstructions in highways. 100. In case of injuries through defects in public bridges. 101. In case of other injuries received while driving. 102. Injuries received while travelling on Sunday. 103. Town liable for Sunday injuries under New Hampshire statute. 104. Liability for Sunday injuries under Iowa statute. Article II. In the Case of Eailwat Accidents. Section 107. In the case of injuries to railway servants. 108. Further illustrations in cases of injuries to railway servants. 109. Cases where the negligence was not the proximate cause of the In- juries sustained by the railway employes. 110. In case of injuries by derailment of trains by cattle. 111. In the case of injuries sustained by passengers while riding on the platforms of cars. 112. In the case of injuries to passengers in alighting at the wrong place, alighting on failure of car to stop, etc. 113. In case of injuries received by passengers subsequently to alighting, when carried beyond station. 114. In case of other injuries to passengers. 115. In case of collisions of railway trains. 116. In case of railway injuries to animals. 117. Doctrine which gives damages only for direct contact and excludes injuries from fright. 118. Contributory negligence of the owner of the animals. 119. In case of collisions at railway crossings. 120. Collisions at railway crossings continued. 121. In the case of other injuries connected with the running of railway trains. . ?2. In the case of collisions between travellers and street cars. Aeticle III. In Various Other Cases. Section 125. In case of the spread of fires. 126. Spread of flres, continued. 127. In case of injuries to or upon vessels. 128. In case of injuries to or by escaping or straying animals. 129. In case of injuries from explosives. 130. In case of injuries from water. xiv contents of volume one. Section 131. In case of Injuries caused by assaulting or frightening persons, thereby impelling them to do the particular injury. 132. In case of death or Injury resulting from vending poisonous drug with harmless label. 133. In case of Injuries to children. 134. In case of Injuries committed by children, through means provided by the negligence of others. 135. In the relation of master and servant. 136. In the case of failure of the employer to provide formal rules for the protection of employes. 137. In case of mistakes and delays in delivering telegraph messages. 138. In the case of death resulting from an attempt to save the life of another. 139. In case of unreasonable delay of shipment by carriers of goods. 140. In case of injuries ascribed to the sale of intoxicating liquor. 141. In the case of accidents arising from electrical appliances. 142. In case of injuries In connection with elevators In buildings. 143. In various other cases. 144. Other illustrations where the negligence was the proximate cause of the accident. 145. Other Illustrations where the negligence was not the proximate cause of the accident. CHAPTEE VI. REMOTE CONSEQUENCES OP PHYSICAL INJURIES. Section 149. Intervention of independent disease or agency producing death. 150. Injuries aggravating a peculiar physical condition or pre-existing tendency to a particular disease. 151. Further illustrations of the foregoing. 152. Other Illustrative decisions, pro and con. 153. How in cases where the Injuries result In death. 154. Remoteness of diseases springing from physical Injuries. 155. Liability for fright, mental distress or nervous shock. 156. Whether negligence producing a fright or nervous shock in a woman is actionable where it results in a subsequent miscarriage. 157. Actionability of negligence producing nervous shock resulting In other physical injuries. CHAPTER VII. QUESTIONS OF PROCEDURE INVOLVED IN THE SUBJECT OF PROXIMATE AND REMOTE CAUSE. Section 159. Questions as to the form of the action at common law. 160. Questions of pleading and variance. 161. Proximate cause, whether a question for court or jury. CONTENTS OF VOLUME ONE. XV Section 162. Proximate cause further considered as a question of law or of fact. 163. Illustrative cases where the question was properly submitted to the jury. 164. Other illustrative cases where the question was for the Jury. TITLE THREE. CONTBIBUTORY NEGLIGENCE. Chapter VIII. General Doctrines, §§ 168-211. IX. Doctrine that the Contributory Negligence must have been the Proximate Cause of the Injury, §§ 216-255. X. Comparative Negligence, §§ 259-286. XI. Contributory Negligence in Case of Injuries to Children and Others non Sui Juris, • • • §§ 289-348. Art. I. Whether Negligence of Parents or Cus- todians Imputed to Children, §§ 289-303. Art. II. Degree of Care Expected of Children, . §§ 306-318. Art. III. Care and Negligence of Parents and Custodians, §§ 321-333. Art. IV. Injuries to Other Persons non Sui Juris, §§ 336-341. Art. V. Other Matters, §§ 343-348. XII. Contributory Negligence in Particular States of Fact, §§ 350-361. XIII. Eules of Procedure with Eeference to Contribu- tory Negligence, §§ 364^94 Art. I. Eules of Pleading, §§ 364-392. SuBDiv. 1. Rules of Pleading how Affected liy Considerations Relating to the Burden of Proof §§ 364-371. SuBDiv. 2. Manner of Pleading Contributory Negligence §§ 373-392. Art. II. Eules of Evidence, §§ 395-421. SxiBDiv. 1. Presumptions as to Contributory Negligence §§ 395-404. SuBDiy. 2. Other Questions of Evidence and Burden of Proof §§ 406-421. xvi contents of volume one. Chapter Art. III. When a' question for the Court, when for the Jury, §§ 424-454. SuBDiv. 1. Principles, Doctrines and Theories, . §§ 424-438. SuBDiv. 2. Application of these Doctrines in Various Conditions of Fact, §i 441-454. Art. IV. Instructing the Jury as to Contributory Negligence, §§ 457-494. SuBDiv. 1. Principles which Govern the diving and Refusing of Instructions on this Issue, . §§ 457-478. SuBDiy. 2. Instructions on Various Questions of Law and Fact §§ 481-494. XIV. Imputed Negligence, §§ 497-514. CHAPTER VIII. general doctrines. Section 168. General rule that contributory negligence bars recovery. 169. Contributory negligence defined. 170. Doctrine that contributory negligence "in any degree" bars recovery. 171. There must have been a want of ordinary care in the person Injured. 172. Judicial statements of this principle. 173. Tests by which to determine whether there has been a want of ordi= nary care. 174. Person acting wrongly or illegally, bound to use more care. 175. Person needlessly exposing himself to peril bound to more than ordinary care. 176. In case of strictly mutual or concurring negligence, no recovery. 177. Explanation of the last stated doctrine. 178. Where the injury would not have happened except for the negli- gence of the person injured, no recovery. 179. Where one of two persons must suffer. 180. Distinction between contributory negligence and waiving right of action. 181. This distinction illustrated. 182. Waiver or release of right of action by express contract. 183. Waiver of right of action in the relation of master and servant. 184. Implied waiver of right of action by voluntarily accepting risk. 185. Operation of the maxim volenti non fit injuria. 186. Recklessly encountering known dangers. 187. Illustrations of recklessly encountering known dangers. 188. Qualifications of the rule as to recklessly encountering known dan- gers. 189. What if the danger might have been seen, and avoided if seen. 190. Whether negligence not to anticipate the negligence or misconduci of another. CONTENTS OP VOLUME ONE. XVU Section 191. Circumstances under which it is not negligence not to anticipate the negligence or misconduct of another. 192. Want of care in person injured produced act of defendant. 193. An analogous rule in case of fraud. 194. What if placed in sudden danger by his own fault. 195. Acting erroneously in presence of imminent peril not produced by his own fault. 196. Voluntarily placing one's self in a position where one loses self- control. 197. Acting erroneously under Impulse of fear produced by defendant's negligence. 198. Acting erroneously in attempting to rescue another from imminent peril. 199. Injuries incurred in attempting to save persons or property imr periled by the negligence of another. 200. Injuries received while getting over inconvenience produced by wrongful act of defendant. 201. Contributory negligence which enhances the damages merely. 202. Subsequent negligence of the person injured in treating his wound. 203. Contributory negligence of plaintiff in actions for malpractice. 204. Unlawful act directly contributing to the injury. 205. What if person injured is a trespasser. 206. Contributory negligence no defense to an action for a willful or wan- ton injury. 207. Further of willful and wanton injuries in connection with contribu- tory negligence. 208. What is willful or wanton negligence which renders the defendant liable notwithstanding plaintiff's contributory negligence. 209. Contributory negligence where the injury has resulted in death. 210. Contributory negligence where the negligence of the defendant con- sists in the violation of a statutory duty. 211. Contributory negligence under statutes imposing duties upon the owner of dangerous machinery. CHAPTER IX. DOCTRINE THAT THE CONTRIBUTORY NEGLIGENCE MUST HAVE BEEN THE PROXIMATE CAUSE OE THE INJURY. Section 216. This want of ordinary care must have been a proximate cause of the injury. 217. But need not have been the sole cause. 218. Theory that it is enough if it "contributed" to it. 219. Defendant's negligence proximate, plaintiff's negligence remote. 220. Where, notwithstanding plaintiff's negligence, the injury would have happened. 221. Does not bar recovery unless, but for such negligence, the accident would not have happened. 222. Recovery possible although, but for negligence of person injured, accident would not have happened. VOL. 1 THOMP. NEG. — ii XVlll CONTENTS OF VOLUME ONE. Section 223. Recovery possible unless, by exercising ordinary care, consequences of defendant's negligence could have been avoided. 224. Applications and misapplications of this rule. 225. Applications of this rule in cases of collisions of vessels, railway trains, vehicles, etc. 226. No recovery unless defendant could have avoided consequences of plaintiff's negligence. 227. No recovery where, by exercising ordinary care, consequemces of de- fendant's negligence could have been avoided. 228. If defendant could have avoided plaintiff's negligence, or if plaintiff could not have avoided defendant's negligence. 229. Confusion between negligence and casual connection. 230. Doctrine that plaintiff, though negligent, may recover if defendant could have avoided injury by exercise of ordinary care. 231. Comments upon the foregoing doctrines. 232. This rule restrained to cases where defendant was under the duty of exercising care to discover the dangerous situation of others. 233. This rule contrasted with the rule that plaintiff can not recover if he could have avoided the consequences of defendant's negligence by the exercise of ordinary care. 234. These two rules contradict each other. 235. Rule of Davies v. Mann, within what limits applied. 236. The subj»ct illustrated by the case of a drunken man on a railway track at night. 237. Defendant not liable unless, after discovering plaintiff's negligence, he could have avoided injury by exercise of reasonable care. 238. Defendant liable if, after discovering the exposed situation of the plaintiff, he could have avoided injuring him by the exercise of ordinary care. 239. Or when he ought to have discovered plaintiff's negligence, etc. 240. The "last clear chance" doctrine. 241. Prior negligence of plaintiff and subsequent negligence of defendant. 242. Illustration in case of person injured on railway track and subse- quently allowed to bleed to death. 243. Illustration in case of cattle killed on railway track. 244. Other illustrations. 245. Prior negligence of plaintiff and subsequent unlawful act of de- fendant. 246. Application of the foregoing doctrines in case of trespassers expos- ing themselves to danger. 247. What if the defendant's wrong was willful. 248. Whether the plaintiff's negligence must have "directly" contributed to the injury. 249. Collateral violations of law. 250. Contributory negligence in mitigation and apportionment of dam- ages. 251. Plaintiff can not recover enhanced damages by reason of his subse- quent negligence. 252. Illustrations of this doctrine. CONTENTS OF VOLUME ONE. XIX Section 253. Defendant liable for increasing damage produced by plaintiff's negli- gence, misfortune, etc. 254. Private abatement of nuisances: liability for destroying property negligently or unlawfully exposed. 255. Death or injury to A. brought about by A.'s own act superinduced by the wrongful act of B. CHAPTEE X. compaeative negligence. Section 259. Doctrine of "comparative negligence" generally denied. 260. Denied in New York. 261. Denied in Pennsylvania. 262. Denied in Iowa. 263. Denied in Nebraska, Alabama, Kansas, Colorado, Indiana, Texas. 264. No longer the law in Illinois. 265. Contributory negligence bars actions unless defendant's wrong was willful or intentional. 266. Doctrine that contributory negligence does not bar a recovery where defendant's wrong was wanton, willful, or reckless. 267. Doctrine that slight negligence will not bar a recovery. 268. Doctrine in Georgia as to comparative negligence. 269. Rule of comparative negligence in Illinois. 270. Origin of the rule. 271. Advantages of the rule. 272. Rule does not apply where person injured was not in the exercise of ordinary care. 273. Judicial expressions of the doctrine. 274. Not enough that the negligence of defendant was greater than that of plaintiff. 275. Disadvantages to the plaintiff of the rule. 276. If plaintiff's negligence was "gross," defendant's must have been •'willful." 277. Plaintiff negligent, but defendant failed to use ordinary care to avoid injuring him. 278. No recovery where parties in equal fault. 279. Nor where negligence of plaintiff was greater than that of defendant. 280. Rule ought to apportion the damages. 281. Cases illustrating the rule. 282. Instructions under the rule. 283. When comparative negligence a question for the jury. 284. Burden of proof as to comparative negligence. 285. Doctrine of comparative negligence in Kansas. 286. Admiralty rule apportioning the damages. XX CONTENTS OF VOLUME ONE. CHAPTEE XL CONTEIBUTOEY NEGLIGENCE IN CASE OF INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. Art. I. Whether Negligence of Parents or Custodians Imputed to Children, §§ 289-303. Art. II. Degree of Care Expected of Children, §§ 306-318. Art. III. Care and Negligence of Parents and Custodians, §§ 321- 333. Art. IV. Injuries to Other Persons non Sui Juris, §§ 336-341. Art. V. Other Matters, §§ 343-348. Article I. Whether Negligence op Parents or Custodians Imputed to Children. Section 289. Doctrine that negligence of parents, etc., imputed to children, etc.. In their charge. 290. English rule which imputes the negligence of the custodian to the infant. 291. The rule as declared in Hartfield v. Roper, which imputes the negli- gence of parents to children. 292. This rule adopted in what States. 293. Denied in what States. 294. The rule in Hartfield v. Roper discussed. 295. Rule in Hartfield v. Roper modified. 296. Modified in California and other States. 297. Modified and repudiated in Illinois. 298. Modified in case of children escaping upon the highway. 299. Rule does not apply in case of children injured by "gross" negli- gence. 300. The same subject, how viewed in Missouri. 301. Effect of presence of parent or custodian at the time of injury. 302. The same subject in other jurisdictions. 303. Injuries where no negligence of parent or custodian is Imputed. Article II. Degree oe Care Expected of Children. Section 306. At what age children are to be deemed sui juris. 307. Whether this is a question of law or of fact. 308. Degree of care required of children. 309. Age considered with reference to intelligence, experience and sur- rounding circumstances. 310. Age at which children deemed inca'pable of negligence, as matter of law. contents of volume one. xxi Section 311. Age and circumstances at which contributory negligence imputable as matter of law. 312. The same subject continued. 313. Age and circumstances under which contributory negligence not matter of law, but question for jury. 314. Continued, with fuller explanations of the circumstances. 315. Age at which infants charged with ordinary care of adults. 316. Injuries ascribed to accident or misfortune due to childish inexperi- ence: no evidence of negligence on part of defendant. 317. Prima facie evidence of negligence and absence of contributory negli- gence in cases of injuries to children, continued. 318. Examples of injuries to children where the defendant was exon- erated. Article III. Cake and Negligence of Parents and Custodians. Section 321. Degree of care to be exercised by parents or guardians. 322. Age of custodian with whom child may be sent out. 323. Facts imputing negligence to custodians as matter of law. 324. Not negligence per se to permit child to escape or go unattended upon the street. 325. Cases in which it was so held. 326. Other such cases. 327. Further illustrations of this doctrine. 328. Still further illustrations. 329. Whether poverty of parent considered. 330. Effect of contributory negligence of parents upon parents' right of action for death or injury of child. 331. Further of this subject. 332. Illustrations of negligence of parents barring their right of action. 333. When parent chargeable with negligence of custodian. Article IV. Injuries to Other Persons non Sui Juris. Section 336. Greater care required of persons who are blind, deaf, aged, or other- wise infirm. 337. Application of the rule to deaf persons. 338. Application of the rule to persons non compos mentis. 339. Care required of women. 340. Voluntary intoxication of person injured. 341. Further of voluntary intoxication. Article V. Other Matters. Section 343. Injuries to trespassing children. 344. Rule where injury to child could have been avoided by the exercise of ordinary care. 345. Care required to avoid injuring children. 346. Negligence of child as affecting right of action of parent. XXll CONTENTS OF VOLUME ONE. Section 347. What facts amount to prima facie evidence of negligence in cases of injuries to children. 348. Questions of evidence in these cases. CHAPTER XII. CONTEIBUTOKY NEGLIGENCE IN PAETICULAE STATES OF FACT. Section 350. Various facts amounting to contributory negligence as matter of law. 351. Various other facts amounting to contributory negligence. 352. Other such facts. 353. Continued. 354. Facts amounting to prima facie evidence of contributory negligence to go to the jury. 355. Other facts affording prima facie evidence of contributory negligence. 356. Other such facts. 357. Facts not amounting to evidence of contributory negligence. 358. Contributory negligence in cases of collisions of vessels. 359. In cases of collisions of vessels, continued. 360. In case of loss of goods of guest at public inn. 361. In actions for malpractice. CHAPTER XIII. RULES OP PEOCEDURE WITH REFERENCE TO CONTRIBUTORY NEGLIGENCE. Art. I. Rules of Pleading, §§ 364r-392. SuBDiv. 1. Rules of Pleading, how Affected hy Considerations Re- lating to the Burden of Proof, §§ 364-371. Stjbdiv. 2. Manner of Pleading Contributory Negligence, §§ 373-392. Art. II. Rules of Evidence, §§ 395-431. SuBDiv. 1. Presumptions as to Contributory Negligence, §§ 395-404. SuBDiv. 2. Other Questions of Evidence and Burden of Proof, §§ 406-421. Art. III. When a Question for the Court, When for the Jury, §§ 424-454. SuBDiv. 1. Principles, Doctrines and Theories, §§ 424-438. SuBDiv. 2. Application of these Doctrines in Various Conditions of Fact, §§ 441-454. Aet. IV. Instructing the Jury as to Contributory Negligence, §§ 457-494. Stjbdiv. 1. Principles which Govern the Giving and Refusing of In- structions on this Issue, §§ 457-478. SuBDiv. 2. Instructions on Various Questions of Law and Fact, §§ 481-494. CON'BENTS OF VOLUME ONE. XXUI Article I. Rules op Pleading. SuBDiYisiON 1. Rules of Pleading, how Affected by Considerations Relating to the Burden of Proof. Section 364. Burden of proof to show contributory negligence. 365. Jurisdictions in which burden of proving freedom from contributory negligence is on plaintiff. 366. Jurisdictions in which contributory negligence is an aflSrmative de- fense to be averred and proved. 367. Confusing ideas upon this question. 368. Burden of proof as to assumption of risks by employes. 369. Plaintiff nonsuited if his evidence shows contributory negligence, although not pleaded. 370. Freedom from contributory negligence must be alleged in plaintiff's pleading, in those jurisdictions where plaintiff sustains burden of proof. 371. Freedom from contributory negligence need not be alleged by the plaintiff in those jurisdictions where the negligence is an affirma- tive defense. Subdivision 2. Manner of Pleading Contributory Negligence. Section 373. Jurisdiction in which it is not sufficient to deny contributory negli- gence in general terms. 374. Particularity of averment in pleading contributory negligence. 375. General averment that person injured was without fault sufficient. 376. General allegations denying contributory negligence overthrown by special ones which in effect admit it. 377. What special allegations do not overthrow the general allegation that the person injured was without fault. 378. Allegations which sufficiently negative contributory negligence. 379. Examples of complaints which do not negative contributory negli- gence. 380. Allegations not necessary in particular cases where contributory negligence must be denied. 381. Allegations not necessary where contributory negligence is matter of defense. 382. When not necessary, under either rule, to negative contributory negligence. 383. Not necessary to negative contributory negligence in actions for willful or wanton injuries. 384. Negativing contributory negligence in an action by a child. 385. What complaints are demurrable as showing contributory negligence on their face. 386. What complaints not demurrable as showing contributory negligence. 387. Whether defense of contributory negligence admissible under gen- eral issue. XXIV CONTENTS OF VOLUME ONE. Section 388. Doctrine that defense not admissible unless specially pleaded. 389. Whether the intoxication of the plaintiff or of the person killed or injured must be specially pleaded. 390. What admitted by plea of contributory negligence. 391. Whether a reply necessary to a special pleading of contributory neg- ligence. 392. A negation of contributory negligence does not state a cause of action. Article II. Eules of Evidence. Subdivision 1. Presumption as to Contributory Negligence. Section 395. Presumption as to contributory negligence: res ipsa loquitur. 396. No presumption of right-acting in those jurisdictions where burden is on plaintiff. 397. Further of this absence of presumption of right-acting. 398. Still further of this subject. 399. What evidence does not sustain the burden in case of death under this rule. 400. Applications of this rule. 401. Presumption of right-acting and freedom from contributory negli- gence under the rule which puts the burden of proving contribu- tory negligence upon the defendant. 402. No presumption of right-acting where injured person survives and fails to explain. 403. Negligence of defendant not Inferable from presumption of due care in the person injured. 404. Presumption of right-acting attends defendant, as well as person killed. Subdivision 2. Other Questions of Evidence and Burden of Proof. Section 406. Theories as to shifting of burden of proof on the issue of contribu- tory negligence. 407. Circumstances under which burden of proof as to contributory negli- gence shifts from plaintiff to defendant. 408. Intoxication of plaintiff does not shift burden of proof as to contrib- utory negligence from defendant to plaintiff. 409. Burden as between moving vessels in case of collision. 410. Burden of proof in other cases of the collision of vessels. 411. Burden where a vessel collides with a pier. 412. Where both vessels have opportunity to maneuver, both deemed at fault. 413. What proof sustains the burden when on plaintiff. 414. Due care may be shown by circumstantial as well as direct evidence. 415. What proof does not sustain burden when on plaintiff. contents of volume one. xxv Section 416. What circumstances tend to show freedom from contributory negli- gence in case of death. 417. What proof sustains the burden when on defendant. 418. When plaintiff, to avoid defense of contributory negligence, must prove "wanton" negligence on the part of defendant. 419. Burden on plaintiff to remove presumption of contributory negli- gence raised by his own testimony. 420. Relevancy of evidence on questions of contributory negligence. 421. Relevancy of evidence in particular states of the pleadings. Article III. When a Question for the Court, When foe the Jury. Subdivision 1. Principles, Doctrines and Theories. Section 424. Reasonable care and reasonable diligence are generally questions of fact. 425. Contributory negligence generally a question of fact for the jury. 426. Unless no recovery could be had upon any view which could be properly taken of the facts. 427. Always for the jury where the evidence is conflicting. 428. Is a question of law upon undisputed facts which do not admit of different inferences. 429. Is a question of fact where fair-minded men might draw different conclusions from undisputed facts. 430. Is a question for the jury where facts in dispute and fair-minded men might draw different inferences from them. 431. Where the evidence so clearly shows contributory negligence that a verdict for the plaintiff would be set aside. 432. Where an unavoidable inference of contributory negligence arises out of plaintiff's own case. 433. Theory that the question is necessarily for the jury where defendant sustains burden of proving contributory negligence. 434. Question is for jury when raised by defendant's testimony alone. 435. When question is for jury when plaintiff sustains the burden as to contributory negligence. 436. Question for jury where no standard of care is fixed by law. 437. Question when determined by a rule of exclusion. 438. In case of the violation of penal statutes. Subdivision 2. Application of these Doctrines in Various Condi- tions of Fact. Section 441. In case of acting erroneously in presence of a sudden peril. 442. In case of an injury received in obeying the directions of another. 443. In cases of injuries to children. 444. Examples of the question in other cases of injuries to children. XXVI CONTENTS OF VOLUME ONE. Section 445. In the case of accepting risks with the knowledge that there is some danger. 446. In the case of failing to observe and discover sources of danger. 447. In cases of injuries received in using defective highways, streets, bridges, sidewalks, etc. 448. In cases of collisions and similar accidents in using the highway. 449. In the case of accepting lease of a house infected with disease. 450. In cases of railway injuries. 451. In cases of railway fires. 452. In cases of intoxication of the person injured. 453. In case of the subsequent negligence of plaintiff in treatment of the injury. 454. A collection of cases where negligence was held to be a question for the jury. Article IV. Instructing the Jury as to Contributory Negligence. Subdivision 1. Principles which Govern the Giving and Refusing of Instructions on this Issue. Section 457. When necessary to instruct as to contributory negligence. 458. When not necessary to instruct jury as to contributory negligence. 459. When error to give any instructions on the law of contributory neg- ligence. 460. Whether negligence and contributory negligence submitted as several issues. 461. What instructions as to contributory negligence ought to be given. 462. What instructions as to contributory negligence not deemed erro- neous. 463. Further instructions as to contributory negligence not deemed erro- neous. 464. What instructions as to contributory negligence have been held erroneous. 465. What instructions and requests for instructions have been con- demned. 466. Necessity of confining the instructions to the issues made by the pleadings. 467. Instructions embodying hypotheses of fact as to which there is no evidence, or which are opposed to all the evidence. 468. Instructions which invade the province of the jury. 469. Instructions which assume that controverted facts are established. 470. Instructions which single out particular facts and ignore other essen- tial facts. 471. Instructing the jury where an inference of contributory negligence arises out of plaintiff's own case. 472. Giving inconsistent or contradictory instructions on the subject of contributory negligence. CONTENTS OF VOLUME ONE. XXVll Section 473. As to the fullness and particularity of instructions on contributory- negligence. 474. Refusing additional instructions where the jury are already fully instructed. 475. Qualifying or amending requests for instructions before giving them. 476. Instructions more favorable to the defendant than he is entitled to. 477. Instructions which use the expression "at the time of the injury." 478. Curing the admission of irrelevant evidence by instructions. Subdivision 2. Instructions on Various Questions of Law and Fact. Section 481. Instructions as to the burden of proof. 482. Instructions as to presumptions. 483. Instructions as to the "instinct of self-preservation." 484. Instructions defining "ordinary care," "reasonable care," degrees of negligence. 485. Instructions which embody the "any degree" doctrine. 486. Instructions embodying the doctrine of comparative negligence. 487. Instructions which embody the doctrine of imputed negligence. 488. Instructions as to proximate and remote cause in connection with contributory negligence. 489. Instructions as to the plaintiff avoiding the consequences of the de- fendant's negligence. 490. Instructions as to the defendant avoiding the consequences of the plaintiff's negligence. 491. Instructions as to voluntarily exposing one's self to danger. 492. Instructions as to casting one's self upon known dangers. 493. Instructions as to contributory negligence in the case of injuries to children. 494. Instructions on the subject of intoxication of the plaintiff or person killed or injured. CHAPTEE XIV. imputed negligence. Section 497. Scope of this chapter. 498. When contributory negligence of one person imputable to another. 499. General rule as to Imputed negligence. 500. Negligence of carrier not imputed to passenger. 501. Negligence of carrier, when imputed to passenger. 502. Negligence of driver not imputed to passenger on private convey- ance riding by invitation. 503. But passenger not absolved from ordinary care for his own safety. 504. Negligence of husband not imputed to wife. 505. Negligence of one co-employ6 not imputable to another in favor of stranger. 506. Negligence of one joint undertaker imputable to the other. XXVlll CONTENTS OF VOLUME ONE. Section 507. Negligence of one employfi imputable to a co-employ6 In favor of a stranger. 508. Negligence of one policeman not imputable to another. 509. Negligence of driver of hose cart not imputable to fireman riding on it. 510. When negligence of wife bars action by husband. 511. When tow not chargeable with negligence of tug. 512. Negligence of bailee not imputable to bailor. 513. Hirer of carriage allowing friend to drive. 514. Negligence of tenant not imputable to landlord. TITLE FOUR. BOCTBIKTE OF RESPONDEAT SUFEBIOB. Chapter XV. Liability of Principal or Master for Negli- gent Acts of Agent or Servant, •••■§§ 518-548. XVI. Liability of Principal or Master for Willful, Malicious, or Criminal Acts of Agent or Servant, §§ 552-574. XVII. Who are and who are not Servants or Agents' within the Eule of Respondeat Superior, . §§ 578-606. XVIII. Questions of Procedure Involved in the Doe- trine of Respondeat Superior, §§ 610-616. CHAPTER XV. LIABILITY OF PRINCIPAL OR MASTER FOR NEGLIGENT ACTS OP AGENT OR SERVANT. Section 518. General rule as to master's liability for acts of servant. 519. Limitations of this rule. 520. Rule extends to negligent and unintentional wrongs committed by the servant in the master's business. 521. Illustrations of the rule. 522. Master not liable where servant abandons the master's duty to effect some purpose of his own. 523. Liability of master where servant, in effecting some purpose of his own, fails to guard dangerous agencies committed to his care. 524. Rule where master knows of habitual misconduct on part of servant and neglects to prevent it. CONTENTS OF VOLUME ONE, XXIX Section 525. Master not liable where servant acts outside the scope of his em- ployment and authority. 526. Test by which to determine whether servant acts within the scope of his employment. 527. What acts not deemed within the scope of the employment of agents and servants under various circumstances. 528. Further of acts not deemed within the scope of the employment of agents and servants. 529. Liability of master for selecting incompetent or improper servants. 530. Acting without orders or against orders. 531. What if the person injured knows that the servant is acting con- trary to orders. 532. Rule where the master commits to the servant certain absolute duties which the master owes to others. 533. Further of cases where master has an absolute duty to perform. 534. Some illustrations of the foregoing doctrines. 535. Other conclusions resulting from the foregoing doctrines. 536. Master liable for accidental death produced by his servant. 537. Respondeat superior in the relation of parent and child. 538. Intervening negligence of third persons. 539. Liability of the master by ratification or adoption. 540. Liability of master for servant's unlawful discharge of implied duties. 541. Instances of acts deemed within the scope of servant's employment. 542. Other such instances. 543. Whether the rule of respondeat superior applies to charitable cor- porations. 544. Power of corporations to employ surgeons or nurses for wounded employes, etc. 545. Through what officer this power exercised. 546. Superintendents, surgeons, road masters, etc. 547. The subject considered with special reference to railway accidents. 548. Ratification of such engagements. CHAPTER XVI. LIABILITY OF PRINCIPAL OR MASTER FOR WILLFUL, MALICIOUS, OR CRIMINAL ACTS OF AGENT OR SERVANT. Section 552. Doctrine that the master is not liable for the willful, malicious, wanton, or criminal acts of his servant. 553. This doctrine rests on fallacious grounds. 554. Repudiated as unjust and impolitic. 555. Applications of this doctrine in cases where servant uses excessive force in accomplishing his duty. 556. The true distinction stated and illustrated. 557. Application of this doctrine to corporations. 558. When the malice and motive of the servant an evidentiary fact. XXX CONTENTS OF VOLUME ONE. Section 559. Illustrations of the liability of a master for malicious injuries com- mitted by bis servants. 560. Liability of master for trespasses of servant. 561. Further of the liability of master for trespasses of servants. 562. Liability of master where the action is to recover a statutory pen- alty for a trespass. 563. Liability of master for assaults committed by his servants. 564. Illustrations of liability of master for assaults by his servants. 565. Liability of master for unlawful arrests, false imprisonment, ma- licious prosecution, by his servants. 566. Further of the liability of masters for false arrests, etc., by their servants. 567. Further of this liability. 568. Where the servant making the arrest is also a police oflBcer. 569. Liability of master for libels published by his servant. 570. Liability of principal for the act of his agent in boycotting a third person. 571. Liability of master for a homicide committed by servant. 572. Further of liability of master for homicides by servants. 573. Application of these principles to the case of a malicious tort of a servant while driving his master's wagon. 574. Liability of master under statute against cruelty to animals. CHAPTEE XVII. WHO ARE AND WHO AEE NOT SERVANTS OH AGENTS WITHIN THE RULE OF RESPONDEAT SUPERIOR. Section 578. Meaning of the word "servant." 579. Tests by which to determine whether the relation of master and servant exists. 580. Evidence to prove the relationship. 581. Status of one hiring a team and a driver to a third person. 582. Livery-stable keeper and coachman. 583. Ship-owner or master and charterer. 584. Ship-owner or master and pilot where the pilotage is compulsory. 585. Lessor and lessee. 586. Vendor and vendee. 587. Receivers of railways. 588. Assistants, deputies, and agents of public ofiScers. 589. Master not liable for negligence of third persons called in by his servants to assist them. 590. Cases qualifying this doctrine. 591. When servants justified in calling in the aid of third persons so as to make the master liable for their acts. 592. Where the servant has authority to employ another servant. 593. Whether master liable to persons temporarily called in to assist his servants. 594. Illustrations of this doctrine. 595. Further illustrations. CONTENTS OF VOLUME ONE. XXXI Section 596. Where one railroad company uses the track, facilities or servants of another. 597. Two railroad companies employing a common servant. 598. Public officers employed by private persons. 599. Liability of master furnishing servant to third person. 600. Other illustrations of the foregoing doctrine. 601. Public officers employing private agents to discharge public duties. 602. Liability of two municipal corporations for negligence of laborer on an interurban bridge. 603. Superintendent and inmates of public hospital. 604. Servants at public bath houses who receive their compensation from the customers. 605. Penitentiary lessee or contractor and convict. 606. Carrier and shipper of diseased cattle. CHAPTEE XVIII. questions of peoceduke involved in the docteine of respondeat superior. Section 610. Form of action against master to recover damages arising from wrong of servant. 611. When master and servant may be jointly sued. 612. Questions of pleading. 613. Burden of proof on question of employment of servant. 614. Matters of evidence. 615. Whether servant acted within the scope of his employment a ques- tion of fact. 616. Whether the relation of master and servant existed a question of fact. TITLE FIVE. INDEPENDENT CONTRACTOBS. Chapter XIX. Non-Liability of Proprietor for Wrongs of In- dependent Contractor, §§ 630-641. XX. Cases where the Proprietor Eemains Liable, . §§ 645-680. XXI. Liability of the Contractor, §§ 685-690. XXXU CONTENTS OF VOLUME ONE. CHAPTER XIX. NON-LIABILITY OP PROPRIETOR FOR WRONGS OF INDEPENDENT CONTRACTOR. Section 620. Overruled doctrine of Bush v. Steinman, that the owner of fixed property is liable for the negligence of independent contractors. 621. General rule. 622. General statement as to who are independent contractors. 623. Some illustrations of this statement. 624. Statement of the rule in case of building contracts. 625. Illustrations in case of building contracts. 626. In case of railway contracts. 627. Further illustrations in the case of railway contracts. 628. Other railway illustrations. 629. Working by the day or by the job. 630. Cases where the person working by the job was held to be a servant. 631. Cases where one working by the day was held to be an independent contractor. 632. Other illustrative cases. 633. Surgeons employed by steamship companies, railway companies, etc. 634. Owner and charterer of ship. 635. Stevedores loading and unloading vessels. 636. Liability of ship-owner or charterer to servant of stevedore. 637. Mine-owner and master ore-digger. 638. Licensed carriers, drovers, warehousemen, water-men, etc. 639. Unlicensed carrier, drovers, etc. 640. Question for the court, not for the jury. 641. Proprietor not liable for an injury upon one contractor by another. CHAPTER XX. CASES WHERE THE PROPRIETOR REMAINS LIABLE. Section 645. The modern doctrine stated. 646. Cases where the proprietor stands liable under the modern doctrine. 647. Proprietor continues liable for his own negligence. 648. Proprietor liable where the work contracted for is wrongful per se. 649. What work deemed wrongful per se. 650. Proprietor liable where the injury proceeds from the nature of the work itself. 651. Proprietor can not relieve himself from liability by an agreement with the contractor. 652. Where the work is, in its nature, dangerous, and likely to lead to mischief. 653. As in case of dangerous excavations in streets. 654. Or in failing to support adjacent land in building. 655. Other illustrations. CONTENTS OF VOLUME ONE. XXXlll Section 656. Responsibility of proprietors for fires set on his premises by con- tractor. 657. When proprietor under the duty of supervising the work. 658. Proprietor responsible where he interferes with the work, etc. 659. Proprietor responsible where he retains or assumes general super- vision and control of the work. 660. What supervision by the proprietor will not render the proprietor liable. 661. Proprietor liable where he reserves full control as to the results and methods. 662. Application of this doctrine to building contracts where control is reserved to architects and superintendents. 663. Application of this doctrine to municipal corporations. 664. Proprietor liable if he accepts defective work from contractor. 665. Proprietor remains liable who delegates an absolute duty to an inde- pendent contractor. 666. Such as the protection of the street or sidewalk. 667. Proprietor liable who delegates to a contractor a duty imposed on him by statute. 668. Further of this doctrine. 669. Railway companies remain liable if they devolve the execution of their franchises upon independent contractors. 670. Further of this subject. 671. For what acts of independent contractors railway companies are not liable. 672. Liability of railroad companies for trespasses of their contractors. 673. Proprietor may become liable by express contract. 674. Proprietor liable for acts in violation of restrictions in public licenses for protection of third persons. 675. Liability in respect of premises upon which the public are invited upon the payment of a fee. 676. Liability of landlord to tenant for negligence of contractor in repair- ing building. 677. Effect of negligence in selecting the contractor. 678. Liability of proprietor for trespass of independent contractor. 679. Liability of the proprietor for injuries to contractor. 680. Whether proprietors liable for injuries to servants of contractors. CHAPTEE XXI. LIABILITY OF THE CONTKAOTOE. Section 685. Liability of the contractor. 686. Contractor not liable to stranger after work turned over and ac- cepted. 687. Proprietor liable to stranger after accepting the work from the con- tractor. 688. Examples of the liability of the contractor to third person. 689. Contractor not liable for negligence of sub-contractor. 690. Liability of sub-contractor to the owner. VOL. 1 THOMP. NEG. — Hi XXXIV CONTENTS OF VOLUME ONE. TITLE SIX. CABE AND BESTBAINT OF DANGEROUS AGENCIES. Chapter XXII. Care and Restraint of Dangerous Things Artificially Collected on One's Own Land, §§ 694^714. XXIII. Noxious Gases and Liquids, §§ 718-725. XXIV. Fire, Other than Railway Fire, §§ 726-754. XXV. Explosives, Steam Boilers, Blasting, . . . §§ 758-775. XXVI. Fire-arms, Fire-works, etc., §§ 778-792. XXVII. Electricity, §§ 795-814. XXVIII. Liability for Vending, Shipping, or Letting' Dangerous Goods or Machines, Com- municating Contagious Diseases, etc., . §§ 817-835. CHAPTER XXIL CAEE AND RESTRAINT OF DANGEROUS THINGS ARTIFICIALLY COLLECTED ON one's own land. tSECTION 694. General duty so to use one's own land or to conduct one's own busi- ness as not to injure one's neighbor. 695. English doctrine as to liability for artificially collecting upon one's own land substances which have a tendency to escape and get upon the land of another. 696. American doctrine on the same subject. 697. Illustrations in the case of water artificially collected upon one's own land. 698. Illustration in the case of sewage escaping into the cellar of a neigh- bor. 699. Illustration in the case of injury to cattle from noxious trees. 700. English rule not applicable to those extraordinary floods attributable to the "act of God." 701. English rule not applicable where the water breaks loose in conse- quence of the act of a third person. 702. English rule not applicable as between tenants of different floors of the same building. 703. Other English cases limiting the doctrine of Rylands v. Fletcher. 704. The value of Rylands v. Fletcher. 705. Doctrine of Rylands v. Fletcher followed in some American courts. 706. But the American doctrine decisively against that case in respect of liability for escape of water. 707. Rule of diligence in restraining water is ordinary care. CONTENTS OF VOLUIIE ONE. XXXV Section 708. Liability for escape of water, how affected by relation of landlorll and tenant. 709. Liability for escape of water into subjacent mines. 710. Other questions of liability for escape of water. 711. Evidence of negligence in such cases. 712. Effect of ignorance of the dangerous nature of a substance brought upon one's own premises. 713. Liability where the dangerous substance is brought upon the de- fendant's premises without his knowledge. 714. Injury caused by the giving way of retaining walls. CHAPTEE XXIIL NOXIOUS GASES AND LIQUIDS. Section 718. Liability for damages caused by escape of noxious gases and liquids 719. Liability of gas-light companies for damages caused by the escape of illuminating gas. 720. Further of this liability. 721. Liability of gas companies for explosions on the premises of their customers. 722. Liability of gas-light companies for failing to shut off gas during a conflagration. 723. Negligence in the use or waste of natural gas. 724. Contributory negligence of the gas consumer. 725. Questions of evidence in actions for injuries from gas. CHAPTER XXIV. FIEE, OTHER THAN RAILWAY FIRE. Section 726. Scope of this chapter — railway flres separately treated. 727. The common-law liability for damages by fire that of an insurer. 728. This onerous liability restricted by statute in England. 729. In America no liability except for negligence. 730. Measure of diligence reasonable or ordinary care. 731. This rule applicable to the use of fire in clearing land. 732. Whether the fact of the fire being communicated from the premises of another is prima facie evidence of negligence. 733. Facts which have been held evidence of negligence in setting or guarding fires. 734. Facts not sufficient to raise a presumption of negligence in setting or guarding fires. 735. Negligence in these cases a question for a jury. 736. Proximate and remote damages in case of the spread of flres XXXVl CONTENTS OF VOLUME ONE. Section 737. Further of proximate and remote damages in case of the spread of fires. 738. Unnecessarily exposing combustible materials. 739. What if two fires, proceeding from different sources, unite and cause damage. 740. Liability for erecting objects or doing acts which prevent the extin- guishment of fires. 741. Liability for fires communicated by steam threshing machines. 742. Liability for fires communicated by steam saw-mills. 743. Negligence in the use of fire in manufacturing and other mechanical works. 744. Liability for fires communicated through the negligence of an inde- pendent contractor. 745. Liability, how affected by relation of the landlord and tenant. 746. Liability under statutes and municipal ordinances for injuries from fires. 747. Statutes prohibiting or restraining the setting of fires in dry woods, marshes, prairies, etc. 748. Construction of the Iowa statutes. 749. Contributory negligence of the person damaged. 750. Facts not imputable as contributory negligence. 751. Exposing one's property to fire. 752. Questions of evidence in actions for damages from fire. 753. Damages precluded by an agreement with the person setting the fire. 754. Not liable for fire set by one's own agent to accomplish a criminal purpose of his own. CHAPTER XXV. EXPLOSIVES, STEAM BOILERS, BLASTING. Section 758. Liability for damages caused by explosives kept on one's premises. 759. Degree of care demanded of one who keeps explosive substances on his premises. 760. Whether the fact of an explosion is prima facie evidence of negli- gence. 761. Contributory negligence of the person injured by explosive sub- stances. 762. Liability for damages caused by the explosion of steam-boilers. 763. Whether the explosion of a steam-boiler is prima facie evidence of negligence. 764. Liability for damages caused by blasting rock. 765. Decisions which proceed upon the principle of negligence. 766. As in railway construction. 767. Precautions to be taken in such blasting: giving warnings, covering the blast, etc. 768. Further as to the care to be used. 769. Rule where the persons blasting have been in the habit of giving notice. CONTENTS OF VOLUME ONE. XXXYll Section 770. The fact of an injury by blasting prima facie evidence of negligence. 771. Liability where the work is done by an independent contractor. 772. Whether injuries from concussion and vibration actionable. 773. Rule where the blasting is forbidden by statute or ordinance. 774. Contributory negligence of person injured. 775. Other holdings with reference to injuries caused by blasting. CHAPTER XXVI. FIRE-AEMS, FIEE-WOEKS, ETC. Section 778. Constitutional right to keep and bear arms. 779. Ancient doctrine which placed the liability for damages from the negligent discharge of a gun on the footing of trespass. 780. Modern doctrine which places such liability on the footing of negli- gence. 781. Liability of proprietors for injuries caused by allowing shooting on their grounds. 782. Liability of the commander of a regiment for an accidental death caused by firing at regimental drill. 783. Liability for discharging fire-arms near the highway. 784. Liability of infants for injuries caused by discharging fire-arms. 785. Liability of parents for such injuries by their children. 786. Liability for injuries resulting from leaving a gun loaded. 787. Accidental discharge of gun presumptive evidence of negligence — res ipsa loquitur. 788. Other such cases. 789. Contributory negligence in such cases. 790. Fire-arms in the hands of children. 791. Liability for injuries caused by fire-works. 792. Contributory negligence of the person injured by fire-works. CHAPTER XXVII. electeicitt. Section 795. General views of the liability of private corporations owning public works. 796. Whether gwasi-insurer: collecting dangerous agencies on one's own land. 797. Reasonable care is proportionate to danger of mischief. 798. How far liability rests on the principle of trespass. 799. Under the Civil Code of Louisiana. 800. Negligence in failing to insulate electric wires. 801. To whom the duty of insulating such wires extends. 802. Injuries from broken wires. 803. Injuries from sagging wires suspended too low, etc. -\XXviii CONTENTS OF VOLUME ONE. Section 804. Injuries from electric wires coming in contact with each other. 805. Injuries from the contact of wires, continued. 806. Further of injuries from contact of wires. 807. Liability for burning buildings by electricity communicated by wires, 808. Contributory negligence in coming in contact with electric wires. 809. Injuries to the servants of electrical companies through their con- tributory negligence. 810. Injuries to workmen through negligently turning on the current. 811. Injuries to worlimen by reason of "live" wires sagging upon "dead" wires. 812. Injuries from broken wires in streets. 813. Liability of municipal corporations for failing to protect their streets from these dangers. 814. Stealing each other's electricity. CHAPTER XXVIII. LIABILITY FOE VENDING, SHIPPING, OE LETTING DANGEEOUS GOODS OE machines, communicating contagious diseases, etc. Section 817. Liability for vending a poisonous drug in a package having on it a harmless label — Proximate and remote cause. 818. Liability for vending a dangerous drug without any label. 819. Evidence that the defendant is a careful and prudent druggist in- admissible. 820. Vending defective machines. 821. Illustrative cases showing liability for vending dangerous goods. 822. Other illustrations of liability for vending dangerous goods. 823. Liability for vending unwholesome foods. 824. Cases limiting or denying the foregoing principles. 825. Further decisions limiting this doctrine. 826. Other such decisions. 827. Cases which proceed^ on the ground of fraud or misrepresentation. 828. Decisions which extend the same doctrine to negligence. 829. No recovery on any theory in the absence of negligence, fraud,, or other wrong. 830. No recovery in the case of the intervention of separate responsible agency. 831. Liability for letting or lending dangerous machines. 832. Liability for selling drugs to minors in violation of statute. 833. Liability of carrier for receiving and shipping dangerous goods. 834. Contributory negligence as a defense in these cases. 835. Liability for damages caused by spreading contagious diseases. CONTENTS OF VOLUME ONE. XXXIX TITLE SEVEN. Chapter XXIX. XXX. XXXI. XXXII. XXXIII. XXXIV. ANIiyCAIiS. Liability of Keepers of Animals, ....§§ 839-868. Proof of Scienter, §§ 873-879. Dogs, §§ 881-900. Trespassing Animals, §§ 904-914. Diseased Animals, §§ 917-931. Contributory and Imputed Negligence in Cases of Injuries by Animals, ....§§ 934-941. CHAPTER XXIX. liability of keepers of animals. Section 839. General statement of such liability at common law. 840. This subject, how affected by the common-law classification of ani- mals. 841. Liability of the keeper of wild and vicious animals. 842. Necessity of proving scienter. 843. Circumstances and statutes under which proof of scienter dispensed with. 844. Keeper of animal known to be vicious, liable as an insurer. -845. Tendency of the modern law to place the liability on the footing of negligence. 845. Decisions illustrating this tendency. 847. Application of the doctrine which subjects the owner to the liability of an insurer in the case where the animal escapes from his re- straint. 848. To what extent the owner of animals naturally dangerous is bound to confine them upon his own premises. 849. Rule that liability for allowing horses, cattle, etc., to escape upon the public streets, depends upon negligence. 850. Liability for allowing domestic animals naturally vicious or danger- ous, to escape upon the public streets. 851. Liability for damages caused by the escape of cattle driven along the public highway. 852. Duty to warn of danger. 853. When negligence presumed and when must be shown, under the modern law. 854. Liability for transferring vicious domestic animals to others without giving warning of their vicious propensities. 855. Liability for acts of domestic animals not ferocious. Xl CONTENTS OP VOLUME ONE. Section 856. Liability where animals injure each other. 857. What will justify killing domestic animals other than dogs. 858. Liability for keeping vicious animals rests upon owner or keeper. -859. "When owner liable and when not. 860. Whether both owner and keeper may be liable. 861. Joint owners liable jointly. 862. Separate owners not liable jointly but severally. 863. Circumstances under which master not liable for acts of his servant. 864. No such liability unless the relation of master and servant exists. 865. Liability of liverymen and other hirers and lenders of horses. 866. Pleading in actions for injuries from animals. 867. Burden of proof in such actions. 868. Points of evidence in such actions. CHAPTEE XXX. PROOF OF SCIENTER. Section 872. Knowledge of the vicious nature of the animal, how proved. 873. Knowledge of the vicious nature of the animal presumed and proved by circumstances. 874. Evidential facts tending to show such knowledge. 875. Owners or keepers presumed to have common knowledge with refer- ence to the propensities of certain animals. 876. Further as to proof of scienter. 877. Further as to such proof, with instances and illustration. 878. Knowledge of agent or servant of vicious propensities of animal, when knowledge of principal or master. 879. When knowledge of wife of vicious propensities of animal imputable to husband. CHAPTEE XXXI. DOGS. Section 881. Liability at common law for keeping vicious dogs. 882 883 884 885 886 887 Modern tendency to place the liability on the footing of negligence. Liability for keeping vicious dogs In the absence of such statutes. Statutes dispensing with proof of scienter in the case of dogs. Further glimpses at statutes against dogs. Liability for keeping dogs under the Civil Code of Louisiana. Effect of these statutes on the defense of contributory negligence. Liability for injuries committed by dogs while trespassing. 889. Liability for injuries to trespassers committed by vicious dogs. 890. Rule of liability where the person injured comes upon the premises of the owner or keeper of the dog upon a lawful errand. 891. Status of dogs as property. CONTENTS OF VOLUME ONE. xli Section 892. Railroad companies liable for the negligent killing of dogs. 893. "What will justify killing the dogs of another. 894. Who deemed the "keeper" or "owner" of a vicious dog. 895. Actual custody not necessary to establish liability. 896. Liability of master for damages caused by vicious dogs kept by his servant. 897. Liability of corporations keeping dogs. 898. Liability, how affected by the relation of husband and wife. 899. Liability of master for damages caused by the negligence of his servants in caring for or using master's animals. 900. Liability for setting dogs upon trespassing animals. CHAPTEE XXXII. trespassing animals. Section 904. General statement of the liability at common law for the trespasses of animals. 905. The common-law rule further explained. 906. Distinction between the common-law rule and the "American rule." 907. Removing trespassing animals. 908. Distraining and impounding trespassing animals. 909. Liability for erecting unlawful fences. 910. Liability for unlawfully destroying fences. 911. Liability where animals break through partition fences. 912. What constitutes "running at large" within the meaning of prohib- itory statutes. 913. Measure of damages for injuries committed by trespassing animals. 914. Liability for trespasses by domestic animals under various statutes. (1.) Alabama. (2.) Arkansas. (3.) California. (4.) Connecticut. (5.) Dakota Territory. (6.) Illinois. (7.) Indiana. (8.) Iowa. (9.) Kansas. (10.) Maine. (11.) Massachusetts. (12.) Michigan. (13.) Mississippi. (14.) Missouri. (15.) Nebraska. (16.) New Hampshire. (17.) New Jersey. (18.) New York. (19.) North Carolina. (20.) Ohio. (21.) Oklahoma. (22.) Oregon. (23.) Pennsylvania. (24.) South Carolina. (25.) Tennessee. (26.) Texas. (27.) Vermont. (28.) Wisconsin. xlii CONTENTS OF VOLUME ONE. CHAPTER XXXIIL DISEASED ANIMALS. Section 917. Keeping animals having infectious diseases not negligence per se. 918. Statutes making it negligence. 919. Liability for trespasses by diseased animals. 920. Liability for selling diseased animals. 921. Liability for importation of cattle infected with Texas fever. ■J22. Contributory negligence of owner whose cattle are infected. 923. Persons importing or failing to restrain infected cattle must have had knowledge that they were infected. 924. Infected cattle escaping from a wrecked train. 925. Construction of various statutes. 926. When both vendor and purchaser of diseased animals properly joined as defendants. 927. Constitutional law: congressional legislation not exclusive. 928. Remedy of owner for the killing of his diseased animals by the State. 929. Duty to warn other owners. 930. Liability of an agister for infection by diseased animals. 931. Measure of damages for infecting animals. CHAPTBE XXXIV. CONTEIBUTOET AND IMPUTED NEGLIGENCE IN CASES OF INJURIES BY ANIMALS. Section 934. Application of the rules of contributory negligence to this subject. 935. Further of contributory negligence in this connection. 936. Contributory negligence in teasing or provoking animals. 937. Application of the doctrine of imputed negligence in these cases. 938. Contributory negligence in case of injuries from trespassing animals. 939. Contributory negligence of children in such cases. 940. Contributory negligence in case of infecting animals. 941. Contributory negligence in the improper surgical treatment of the wounds received from animals. CONTENTS OF VOLUME ONE. xliii TITLE EIGHT. real property. Chapter XXXV. Defects in Eeal Property Injuring Per- sons or Animals Coming Thereon, . . §§ 945-1073. Art. I. Extent of Obligation to Trespassers, Intruders, Bare Licensees, etc., §§ 945- 953. Art. II. Extent of Obligation as to Straying or Trespassing Animals, §§ 955- 962. Art. III. Setting Dangerous Machines for Defense of Property, §§ 964- 967. Art. IV. Duty of Proprietor to Persons Coming on his Premises by Invitation, Ex- press or Implied, §§ 968-1033. Sdbdiv. 1. General Nature of this Duty, . §§ 968- 977. SuBDiv. 2. To Whom the Proprietor Owes this Duty §§ 978- 983. SuBDiv. 3. Liability for Injuries from Defects in Business Houses or Grounds, . §§ 985- 993. SuBDrv. 4. Liability for Injuries from De- fects in PuMic Houses or Grounds, etc., . §§ 994-1009. SuBDiv. 5. Liability for Endangering Pas- sage over Private Ways §§ 1012-1017. SuBDiv. 6. Contributory Negligence of the Person Injured §§ 1019-1022. Art. V. Liability for Injuries to Children, . §§ 1024-1051. Art. VL Falling Walls, §§ 1055-1064. Art. VII. Who Liable where there is any Liability at All, §§ 1067-1073. XXXVI. Injuries from Elevators in Buildings, . §§ 1075,-1097. XXXVII. Liability for Removing the Support of Land, §§ 1101-1125. XXXVIII. Negligence in the Eelation of Landlord and Tenant, §§ 1029-1183. Art. I. Liability as between the Landlord and the Tenant, §§ 1129-1150. Art. II. Liability in Case of Injuries to Third Persons, §§ 1154-1173. 'Art. IIL Other Matters, §§ 1177-1183. Xliv CONTENTS OF VOLUME ONE. CHAPTEE XXXV. DEFECTS IN REAL PKOPEETY INJURING PERSONS OK ANIMALS COMING THEREON. Art. I. Extent of Obligation to Trespassers, Intruders, Bare Li- censees, etc., §§ 945-953. Art. II. Extent of Obligation as to Straying or Trespassing Ani- mals, §§ 955-962. Art. III. Setting Dangerous Machines for Defense of Property, §§ 964-967. Art. IV. Duty of Proprietor to Persons Coming on his Premises by Invitation, Express or Implied, §§ 968-1022. Art. V. Liability for Injuries to Children, §§ 1024-1051. Art. VI. Falling Walls, §§ 1055-1064. Art. VII. Who Liable where there is any Liability, §§ 1067-1073. Article I. Extent op Obligation to Trespassers, Intruders, Barb Licensees, etc. SECTioisr 945. General doctrines. 946. No obligation to lieep one's premises safe for the benefit of tres- passers, intruders, idlers, volunteers, or bare licensees. 947. Cases in whicb this rule has been applied. 948. The rule re-stated as to trespassers. 949. Who are trespassers or bare licensees within this rule — Who not. 950. Exposing on open grounds artificial objects peculiarly dangerous. 951. Leaving premises dangerous contrary to the prohibition of statutes. 952. Injuries to trespassers, licensees, etc., upon vessels. 953. Cases where tlie ship-owner has been held liable. Article II. Extent of Obligation as to Straying or Trespass- ing Animals. Section 955. No obligation to keep one's premises safe for the benefit of the owner of domestic animals. 956. Illustrations of this rule as to animals. 957. Jurisdictions in which the rule as to animals does not obtain in re- spect to pitfalls artificially constructed. 958. Exceptions to the rule as to animals. 959. No obligation to fence for the protection of animals roaming on the highway. 960. Injuries to animals caused by failing to maintain fences lu compli- ance with statutes. 961. Injuries to animals from barbed wire fences. 962. Injuries to animals from barbed wire partition fences. CONTENTS OF VOLUME ONE. xlv Article III. Setting Dangeeous Machines foe Defense of Peopeett. Section 964. Spring-guns and other instruments of destruction for the defense of property. 965. Decisions under the English statute on this subject. 966. American decisions on this subject. 967. Setting such instruments of destruction to protect property from felonious depredations. Article IV. Duty of Peopeietor to Peesons Coming on his Premises by Invitation, Express oe Implied. Subdivision 1. General Nature of This Duty. Section 968. Duty to use reasonable care to keep one's premises safe for the benefit of persons expressly or impliedly invited thereon. 969. Doctrine that the proprietor or occupier owes a duty of protection to any one lawfully on his premises. 970. Degree of care required of property owner in keeping his premises safe. 971. Degree of care required of one who invites another as a social guest. 972. What defects have been ascribed to negligence. 973. What defects have not been ascribed to negligence. 974. What defects not deemed the proximate cause of the injury. 975. Liability of persons temporarily engaged on the premises. 976. Pleading: averment that plaintiff was upon the premises by invita- tion. 977. Evidence in these cases. Subdivision 3. To whom the Proprietor Owes this Duty. Section 978. Proprietor owes this duty to servant of customer. ' 979. Proprietor owes this duty to independent contractor or his servants. 980. Liability of proprietor for injuries to the servants of tenants. 981. Doctrine that policemen are to be deemed on the premises by invita- tion and not as bare licensees. 982. The same protection extends to customs officers, water inspectors, letter carriers, etc. 883. Protection held not to extend to firemen and fire patrols. Xlvi CONTENTS OF VOLUME ONE. Subdivision 3. Liaiility for Injuries from Defects in Business Houses or Grounds. Section 985. Liability for Injuries from dangerous places in business houses or grounds. 986. Cases illustrating this liability. 987. Rule does not protect those who come upon business premises for their own purposes exclusively. 988. No liability for unsafe condition of those parts of premises not in- tended for visitors or customers. 989. Circumstances qualifying this rule. 990. No liability where premises are entered or left by unusual or un- provided way. 991. Illustrations of rule as to entering by an unprovided way. 992. Gases where this rule does not apply. 993. Duty to give warning of danger. Subdivision 4. Liability for Injuries from Defects in Public Houses or Grounds, etc. Section 994. Injuries to persons visiting public houses, public exhibitions, etc. 995. Further of the obligations assumed by the proprietors and man- agers of such places. 996. Degree of care required of the owners of public resorts. 997. Cases illustrating this obligation of care, presenting questions for jury. 998. Further illustrations — Proprietors liable. 999. Further illustrations — Proprietors exonerated. 1000. Injuries in or about public school buildings. 1001. Injuries from defects in public hospital buildings. 1002. Liability of railway companies for injuries through defects in their stations and grounds. 1003. To what class of persons this liability extends. 1004. To what persons this liability does not extend. 1005. Degree of care due to persons using such stations and premises. 1006. Illustrations of negligence of railway companies in this particular. 1007. Liability for injuries received upon public wharves and piers. 1008. Liability for injuries upon toll-bridges. 1009. Liability for failing to provide fire-escapes. Subdivision 5. Liability for Endangering Passage over Private Ways. Section 1012. Land-owner liable for endangering passage over private roads or ways. 1013. American cases where it was so held. 1014. English cases so holding. 1015. Decisions exonerating the owner of private way from liability. CONTENTS OF VOLUME ONE. xlvii Section 1016. Duty to -warn public of revocation of license to come upon one's premises. 1017. This duty applied to railroad companies. Subdivision 6. Contributory Negligence of the Person Injured. Section 1019. Acts imputing contributory negligence to the person injured. 1020. Instances of contributory negligence, continued. 1021. Circumstances under which contributory negligence not imputed as matter of law. 1022. Circumstances under which contributory negligence a question for the jury. Article V. Liability foe Injuries to Children. Section 1024. Liability of owners and occupiers of premises for injuries to chil- dren coming thereon. 1025. General rule which exonerates the land-owner. 1026. Liability extends only to wanton injury. 1027. Although the child is attracted on the premises by some object at- tractive to children. 1028. Cases supporting and illustrating this rule. 1029. Other illustrations of the rule which exonerates proprietors. 1030. Decisions holding the land-owner liable. 1031. Decisions holding proprietors liable on the ground of "attractive nuisance." 1032. True ground of liability: erecting a nuisance attractive to children. 1033. Cases supporting and illustrating the "attractive nuisance" doctrine. 1034. Other "attractive nuisance" cases. 1035. Other cases dealing with the doctrine of "attractive nuisances," denying and affirming it. 1036. Liability of railway companies for injuries to children by un- guarded and unfastened turntables. 1037. Cases affirming and illustrating this liability. 1038. Degree of care demanded of railroad companies by this rule. 1039. Contributory negligence of the parents under this rule. 1040. Doctrine that railway companies are not so liable. 1041. Railroad companies not liable to children intruding into their yards. 1042. Owners of property leaving dangerous objects unguarded, liable to trespassing children. 1043. Authority of the leading case of Lynch v. Nurdin, 1044. Shaken by the case of Hughes v. Macfle. 1045. And by Mangan v. Atterton. 1046. Question left unsettled in England. 1047. Doctrine of Lynch v. 'Nurdin generally adopted in the United States. 1048. Doctrine of Lynch v. Nurdin denied in some American jurisdictions. 1049. Theory that a child of tender years can not be a "trespasser" for the purpose of exonerating the proprietor. 1050. Invitation to children to come upon the premises. 1051. Accidents ascribed to childish inexperience, indiscretion, and mis- fortune. Xlviii CONTENTS OF VOLUME ONE. Article VI. Falling Walls. Section 1055. Liability for damages from falling walls. 1056. Tendency of modern courts to place this liability on the footing of negligence. 1057. Decisions which assimilate it to the liability of an insurer. 1058. Duty of owners or lessees of buildings having defective walls. 1059. Further as to this duty and corresponding liability. 1060. Injuries caused by walls falling upon adjacent premises. 1061. Liability for dangerous walls as between landlord and tenant. 1062. Proximate and remote damages from falling walls. 1063. Contributory negligence in case of injuries from falling walls. 1064. Liability of owners of party-walls. Aeticlb VII. Who Liable where there is Ant Liability at All. Section 1067. Proprietor liable where the duty is of an absolute nature. 1068. As where his property abuts the highway. 1069. Or where he maintains dangerous nuisances on his land near the highway. 1070. His liability to adjoining land-owners. 1071. Whether trustees liable. 1072. When municipal corporations liable — ^When not. 1073. Who else liable, and who not. CHAPTBE XXXVI. injuries from elevators in buildings. Section 1075. Injuries to trespassers and bare licensees from falling down open and unguarded elevator shafts. 1076. Whether fire patrols, letter carriers, etc., excluded from protection under this rule. 1077. Negligence in maintaining open, unguarded, and unlighted elevator shafts. 1078. Degree of care required in the construction and operation of passen- ger elevators. 1079. What this degree of care demands of the proprietor. 1080. Duty to give warning of defects. 1081. Injuries received in using freight elevators. 1082. Evidence of negligence in the construction, repair, and operation of passenger elevators. 1083. Further of evidence of negligence in such cases. 1084. Facts to which negligence has been imputed. 1085. Facts not regarded as raising an imputation of negligence. 1086. When contributory negligence ascribed to the person injured. CONTENTS OF VOLUME ONE. xlix Section 1087. Circumstances under which contributory negligence ascribed as matter of law. 1088. Facts to which contributory negligence has not been ascribed. 1089. Circumstances under which contributory negligence was for the jury. 1090. Instructions to juries in these cases. 1091. Notice of defects in elevators. 1092. Injuries ascribed to negligence of a fellow-servant. 1093. Injuries from elevators to the servants of contractors. 1094. Failing to comply with statutes and ordinances. 1095. Constructor of elevator not liable to customers of his vendee, or to third persons, for defects therein. 1096. Liability as between lessor and lessee for defects in an elevator. 1097. Liability for injuries from dumb-waiters. CHAPTEE XXXVII. LIABILITY FOE REMOVING THE SUPPOET OP LAND. Section 1101. Rule of the common law touching the right of the owner of land to its lateral support. 1102. Nature of the right to the lateral support of land in its natural state. 1103. Right to lateral support with superimposed structures acquired by prescription. 1104. Right to lateral support with superimposed structures acquired on theory of implied grant. 1105. Relative rights of owner of artificially weighted soil, and adjoining owner. 1106. What if the soil would have sunk without the superimposed struc- tures. 1107. Rights may be varied by agreements between the parties. 1108. Right of excavating owner to shore up and charge adjoining owner with cost. 1109. Negligent exercise of the right to excavate in one's own soil. 1110. Degree of care demanded of the land-owner. 1111. Duty to excavate section by section. 1112. Negligence in shoring up. 1113. Questions for the jury in these cases. 1114. Damages recovered for the unlawful deprivation of such support. 1115. What if the work is done by an independent contractor. 1116. Liability of municipal and private corporations and public commis- sioners for removing lateral support of land. 1117. Public commissioners so liable. 1118. Private corporations so liable. 1119. Right to lateral support of land under Civil Code California, aflarm- ing common law. 1120. Under statutes of New York and Ohio. 1121. Contributory negligence of injured land-owner. 1122. Remedy by injunction. * 1123. Statute of limitations runs only from accrual of damages. 1124. Liability for removing the subjacent support of land. 1125. Liability for removing party-wall. VOL. 1 THOMP. NEG. — iv I CONTENTS OF VOLUME ONE. CHAPTER XXXVIII. NEGLIGENCE IN THE RELATION OF LANDLORD AND TENANT. Art. I. Liability as between the Landlord and the Tenant, §§ 1129- 1150. Art. II. Liability in Case of Injuries to Third Persons, §§ 1154- 1173. Art. IIL Other Matters, §§ 1177-1183. Article I. Liability as Between the Landlord and the Tenant. Section 1129. A round statement of the rule which exonerates the landlord, and casts the liability on the tenant. 1130. No implied covenant that premises are in a fit condition — no liabil- ity on the part of the landlord to the tenant for non-repair. 1131. But landlord may become liable to tenant In case of fraud or con- cealment. 1132. Landlord must not expose tenant to hidden dangers on landlord's own premises. 1133. Rule which exonerates landlord applied against servants, guests, and others entering under tenant's title. 1134. Illustrative cases where landlord was held liable to tenant. 1135. Illustrative cases where landlord was not held liable to tenant. 1136. Further illustrations of the liability of the landlord to his tenant. 1137. In case of a mixed possession as between landlord and tenant. 1138. Where different parts of the building are let to different tenants. 1139. Further of the duty and liability of landlords of tenement houses. 1140. Decisions which exonerate the landlord where portions of the build- ing are let to different tenants. 1141. Liability of the landlord to the tenant for damages caused by de- fects in the demised premises in the case of his breech of his covenant to repair. 1142. Liability of the landlord for acts done by him on the demised prem- ises during the term. 1143. Effect of special stipulations in the lease. 1144. Relation of the principal tenant to subtenant. 1145. Liability to repair in case the premises are destroyed or injured by fire. 1146. Landlord not liable for "acts of the law." 1147. Liability of tenant to landlord. 1148. Whether landlord liable for acts of independent contractor. 1149. Duty to provide Are escapes. 1150. When landlord entitled to notice from tenant that building is out of repair. CONTENTS OF VOLUME ONE. H Article II. Liability in Case op Injuries to Third Persons. Section 1154. Liability to third persons for defects in leased premises presump- tively on lessee. 1155. Landlord presumptively exempt from liability. 1156. A catalogue of circumstances under which landlord is liable to strangers. 1157. Landlord is liable to strangers where he has made an express agree- ment with tenant to repair. 1158. Landlord liable to strangers where the nuisance existed at the com- mencement of the term. 1159. In such cases both landlord and tenant liable. 1160. When either landlord or tenant liable. 1161. The same rule as between lessee and subtenant. 1162. Landlord not liable for nuisances created during the term. 1163. Landlord liable for nuisances existing at time of renewal of lease. 1164. Illustrative cases where landlord was exonerated from liability to strangers. 1165. Who deemed the "occupier" in case of injuries to third persons. 1166. Further of this subject. 1167. The same subject continued. 1168. Continued. 1169. Who the "occupier" in case of municipal lease of a wharf. 1170. Landlord liable to stranger for injurious acts done by him during the term. 1171. Circumstances under which landlord not liable to guests or cus- tomers of tenant. 1172. Circumstances under which landlord is liable to guests or customers of tenant. 1173. Liability of landlord to employes of lessee. Article III. Other Matters. Section 1177. Reciprocal rights and duties of tenants of the same landlord. 1178. Illustrations of such reciprocal rights. 1179. Landlord not liable for Injuries inflicted by one tenant upon an- other. 1180. Right of action by tenant for injury to the demised premises. 1181. Contributory negligence of the tenant or person injured. 1182. Circumstances under which negligence will not be imputed to the tenant or to the person injured as matter of law. 1183. Right of landlord to enter and abate nuisances. lii CONTENTS OF VOLUME ONE. TITLE NINE. NEGLIGENCE IN RELATION TO THE HIGHWAY. Chapter XXXIX. Obstructing and Endangering Travel on the Public Highway, §§ 1187-1381. Art. I. General Doctrines, §§ 1187-1196. Art. II. Obstructions and Dangers Created by Abutting Owners, §§ 1199-1229. Art. III. Obstructions and Dangers from Telegraph Poles, and Wires Erected in Public Streets and Highways, .....§§ 1233-1252. Art. IV. Other Obstructions and Dangers, . §§ 1255-1268. Art. V. Contributory Negligence of the In- jured Traveller, §§ 1271-1274. Art. VI. Eight to Maintain Private Action Depends upon Special Damage, ....§§ 1276-1281. XL. The Law of the Eoad, §§ 1283-1339. Art. I. Collisions of Teams and Vehicles with Each Other, . §§ 1283-1292. Art. II. The Law Applicable to Highways in Various Situations, .......§§ 1294-1318. Art. III. Contributory ISTegligence of the Person Injured, §§ 1322-1332. Art. IV. Bicycle Law, §§ 1336-1339. CHAPTEK XXXIX. OBSTRUCTING AND ENDANGERING TRAVEL ON THE PUBLIC HIGHWAY. Art. L General Doctrines, §§ 1187-1196. Art. II. Obstructions and Dangers Created by Abutting Owners, §§ 1199-1229. Art. III. Obstructions and Dangers from Telegraph Poles, and Wires Erected in the Public Streets and Highways, §§ 1233-1252. Art. IV. Other Obstructions and Dangers, §§ 1255-1268. Art. V. Contributory Negligence of the Injured Traveller, §§ 1271- 1274. Art. VI. Eight to Maintain Private Action Depends upon Special Damage, §§ 1276-1281. CONTENTS OF VOLUME ONE. liii Article I. General Doctrines. Section 1187. Scope of this chapter. 1188. When ground of liability nuisance and when negligence. 1189. Notice or knowledge of the nuisance. 1190. Obligation of obstructor of highway to repair or make safe. 1191. Further of this obligation. 1192. When failure of obstructor to repair is negligence as matter of law. 1193. In case of obstructions rendering excavations more dangerous. 1194. No obligation to remove obstructions existing on land dedicated for highway. 1195. Existence of unauthorized obstruction prima facie evidence of neg- ligence. 1196. Injuries caused by negligence in failing to comply with statutes and ordinances. Article II. Obstructions and Dangers Created by Abutting Owners. Section 1199. Obligation of abutting owners not to injure the street or highway. 1200. Liability of abutting owners for maintaining areas and holes in sidewalks. 1201. Persons maintaining areas in sidewalks held to the exercise of reasonable care. 1202. Illustrations of the liability of abutting owners -for injuries from dangerous defects in sidewalks. 1203. Illustrative cases where the owner has been exonerated. 1204. What if the opening has been rendered dangerous by the inter- vening act of an independent wrong-doer. 1205. Liability as between the wrong-doer and the city. 1206. Rule of liability where the obligation to repair is imposed by statute or ordinance. 1207. Are liable where they artificially accumulate ice and snow on the streets. 1208. Liability for injuries sustained by falling of snow and ice from roofs, awnings, etc., upon the street or sidewalk. 1209. Liability of adjacent and abutting owners for failure to comply with ordinances requiring them to remove snow and ice from the sidewalks. 1210. Constitutional validity of such ordinances. 1211. Whether such ordinances give a direct action to the person injured. 1212. Construction of such ordinances. 1213. Liability for the falling of dangerous walls. 1214. Liability for suspending objects above the street or sidewalk which fall upon travellers. 121!). Whether the person suspending objects above the street or sidewalk liable as an insurer or for want of reasonable care. liv CONTENTS OP VOLUME ONE. Section 1216. Thlri liability, how affected by the intervening act of a stranger. 1217. Fall of such objects presumptive evidence of negligence. 1218. Illustrations of this liability. 1219. Adjacent owners and occupiers not liable for injuries produced by accumulations of snow and ice on the sidewalk from natural causes. 1220. What temporary obstructions of the street permissible. 1221. Limitations upon this right to obstruct the streets. 1222. Temporary obstructions in the operations of building. 1223. What obstructions in building deemed negligence. 1224. Whether obstruction is reasonable is a question of fact. 1225. Excavations in the street in the operations of building and repair- ing. 1226. Ordinances licensing or regulating such excavations. 1227. Reasonableness of obstruction must be pleaded. 1228. Liability of land-owners for excavations so near the highway as to endanger travel. 1229. Employments on one's own premises endangering public travel on the highway. Aeticle III. Obstkuctions and Dangers from Telegraph Poles, 'and Wires Erected in the Public Streets and Highways. Section 1233. General proposition in regard to liability for negligence in the use of the streets. 1234. License from the city no defense. 1235. Poles erected in part of the street prohibited to travel. 1236. Injuries from improper location or erection of poles. 1237. Collision in consequence of horse running away. 1238. Injuries from overhanging wires. 1239. Injuries from guy wires. 1240. Injuries from the falling of telegraph and telephone wires, poles, etc. 1241. Injuries from poles blown down by storms. 1242. Right of contribution by municipal corporation against electric light company. 1243. Wires obstructing navigation. 1244. Vessels injuring submarine cables. 1245. Liability for pulling down cornices, bricks, etc., upon the sidewalk. 1246. Injuries from the falling of lamps, glass insulators, etc. 1247. Other street accidents resulting from the negligence of these com- panies. 1248. Proximate and remote cause in this relation. 1249. Contributory negligence of the traveller. 1250. Further of the contributory negligence of the traveller. 1251. Certain evidential matters. 1252. What deemed a public street within the meaning of this chapter. CONTENTS OF VOLUME ONE. Iv Article IV. Other Obstructions and Dangers. Section 1255. Carelessly piling lumber in a public street. 1256. Injuries from falling of tools of workmen, timbers, etc. 1257. Leaving on or near the street objects whicli frighten the horses of travellers. 1258. Instances where damages have been recovered for frightening horses. 1259. Instances where there was no liability for frightening horses. 1260. Further of objects frightening horses of travellers. 1261. Frightening horses by the use of steam whistles in manufacturing establishments. 1262. Teams standing on the streets or sidewalks obstructing passage. 1263; Moving buildings in the public streets. 1264. Excavating in the street for public work. 1265. Tobogganing in the public street. 1266. Obstructions of the streets by gas companies. 1267. Street obstructions and dangers by water companies. 1268. Obstructions of highways by toll-gates. Article V. Contributory Negligence of the Injured Traveller. Section 1271. Contributory negligence of travellers injured by obstructions, ex- cavations, etc., in the public streets. 1272. Facts to which contributory negligence has not been ascribed. 1273. Contributory negligence of traveller injured through areas under the sidewalk. 1274. No defense that the person injured might have taken another way which was safe. Article VI. Eight to Maintain Private Action Depends upon Special Damage. Section 1276. Right of action in the owner of the fee for obstructing the highway. 1277. Private action for obstructing the public way lies only where there is special damage. 1278. Test by which to determine what is special damage in this relation. 1279. Illustrations showing what is special damage in this relation. 1280. What is not special damage in this relation. 1281. Specfial damage must be pleaded, and how. Ivi CONTENTS OF VOLUME ONE. CHAPTEE XL. THE LAW OF THE EGAD. Art. I. Collisions of Teams and Vehicles with Each Other, §§ 1383- 1293. Art. II. The Law Applicable to Highways in Various Situations,. §§ 1394-1318. Art. III. Contributory Negligence of the Person Injured, §§ 1333- 1332. Art. IV. Bicycle Law, §§ 1335-1339. Article I. Collisions of Teams and Vehicles with Bach Other. Section 1283. Degree of care exacted of travellers on the highway. 1284. Injuries from collisions of teams on the highway. 1285. Duty to keep to the right. 1286. Further of the rule of keeping to the right. 1287. Still further as to keeping to the right. 1288. Whether horseback riders bound to observe the "law of the road."" 1289. Cases where this "law of the road" does not apply. 1290. Collisions with teams approaching from behind. 1291. Duty where teams approach each other in the dark. 1292. Construction of statutes enjoining the duty of keeping to the right. Article II. The Law Applicable to Highway in Various Situations. Section 1294. Liability for injuries from leaving horses unhitched and unattended. 1295. Further of leaving horses unhitched and unattended. 1296. Liability for injuries from teams standing upon the public streets. 1297. Liability for damages arising from collisions with runaway horses. 1298. Injuries to pedestrians from driving cattle in the highway. 1299. Liability for injuries caused by fast driving and racing. 1300. Relative rights of foot passengers and teamsters. 1301. Vehicles running over foot passengers at crossings. 1302. Injuries by vehicles to persons at work on the public street. 1303. Injuries by vehicles to other foot passengers on public streets. 1304. Further of injuries by vehicles to foot passengers on the public street. 1305. Liability for injuries arising from the breaking of vehicles, har- ness, etc. 1306. Driving or using highway in violation of statute or ordinance. 1307. Fast driving and racing in violation of municipal ordinance. 1308. Frightening the horses of other travellers. 1309. Driving vicious or unbroken horses. CONTENTS OF VOLUME ONE. Ivii Section 1310. Injuries by fire insurance patrols, street railway repair wagons, etc. 1311. Injuries by the "ice-man." 1312. Injuries from the use of steam traction engines on the highway. 1313. Negligence in unloading over a sidewalk. 1314. Negligence in leading horses in the street. 1315. Evidence of negligence in these cases. 1316. Evidence which did not disclose negligence. 1317. Questions of the admissibility of evidence. 1318. Questions for the jury. Article III. Conteibdtoet Negligence op the Peeson Injueed. Section 1322. Contributory negligence of the person injured generally a question for jury. 1323. Facts to which contributory negligence not ascribed as matter of law. 1324. Jury, how instructed as to contributory negligence. 1325. Recovery not barred because the person injured negligently exposed himself. 1326. How far a defense that plaintiff was himself violating the law of the road. 1327. Not contributory negligence to fail to anticipate the negligence of a person driving in the road. 1328. Contributory negligence of foot passengers run over by horses and vehicles. 1329. Whether contributory negligence for footman to fail to look for ap- proaching teams. 1330. Doctrine of imputed negligence in cases of collisions on the high- way. 1331. Case withdrawn from jury where evidence equally consistent with conclusion of care or negligence. 1332. Right of recovery where the concurring act of third persons assists in producing the catastrophe. Aeticle IV. Bicycle Law. Section 1335. Bicycles are "vehicles" and have the same rights as other vehicles. 1336. Reasonableness of municipal by-laws regulating bicycles. 1337. Riding bicycles on the sidewalk. 1338. Rights and duties of bicyclers in traversing the streets. 1339. Contributory negligence of the wheelman. COMMENTARIES LAW OF NEGLIGENCE. TITLE ONE. GENERAL PRINCIPLES AND THEORIES. Chapter I. JSTegligence in General §§ 1-15. II. Degrees of Care and ISTegligence §§ 18-26. III. Other Doctrines and Theories §§ 28-39. CHAPTER I. NEGLIGENCE IN GENERAL. Section 1. What is negligence? 2. The failure to exercise the pre- scribed degree of care. 3. Negligence predicated only on a failure of legal duty. 4. How this duty of taking care arises. 5. Failure to perform duties as- sumed by contract. 6. No contractual relation neces- sary to support it. 7. Distinction between a failure of duty through carelessness and through wantonness. 8. Negligent ignorance: failure of the duty of finding out and knowing. 9. No liability for doing a lawful Section act in a lawful manner and without negligence. 10. Negligence per se, or statutory negligence. 11. Doctrine that the violation of a statute is no more than prima facie evidence of negligence. 12. Whether violations of such stat- utes give rise to a private ac- tion, or only to a public prose- cution. 13. When such statutes do not ex- clude common law remedies. 14. Casus: inevitable accident — in- juries proceeding from sources for which neither party Is re- sponsible. 15. Demonstrative evidence of neg- ligence — res ipsa loquitur. 1 1 Thomp. Neg.] general pkinciples and theories. § 1. What is Negligence ?^^ — No general definition of negligence can be of much value in the practical administration of justice. The rea- son is that there are so many qualifications to every general statement of legal doctrine, that a definition leaves too many things undefined. It is probable that one-half of the definitions of negligence given in this section could not be stated to a jury in instructing them, without the danger of misleading them. The definition given by Baron Alder- son in a celebrated English ease^ has been often quoted with approval by American courts. It is that "negligence is 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 reasonable and prudent man would not do." ^ This definition is believed to be faulty, in that, instead of making the standard of care that which is ordinarily exercised by prudent men under like circumstances, it erects before the eyes of the jury an ideal reasonable man, and each juror in determining what this ideal reason- able man would do in a given state of circumstances, will not stop to consider what prudent men generally do, but will apply his own stand- ard as to what is ideally reasonable or unreasonable. Another defini- tion is the want of that care and caution which a person of ordinary intelligence and judgment would use under like circumstances.' This definition is faulty, in excluding from the attention the moral ingredi- ents which should enter into it. One man of ordinary intelligence and judgment, but possessing a lively sense of his moral, social and legal duty to refrain from injuring others, might, and probably would, in a given situation, exercise a great deal more care to that end than another person of equal intelligence and judgment, but lacking in the other qualities named, would exercise. Another definition which is, the failure to observe for the protection or safety of the interests of another person, that- degree of care, precaution and vigilance which the circumstances justly demand,* is better, because the word "justly" introduces the moral and legal considerations which should be present in the mind of the actor. The same conception, possibly better ex- pressed, is found in the definition that negligence is the failure to ex- aThis section is cited in § 28. =Vass v. Waukesha, 90 Wis. 337; 'Blyth V. Birmingham Waterworks s. c. 63 N. W. Rep. 280. Co., 11 Exch. 784. * Henry v. Cleveland &c. R. Co., 67 ''Hunter v. Kansas City R. &c. Co., Fed. Rep. 426; Diamond State Iron 54 U. S. App. 653; s. c. 85 Fed. Rep. Co. v. Giles, 7 Houst. (Del.) 556, 379; 29 C. C. A. 206; Nitro-Glycer- 557; s. c. 9 Cent. Rep. 577; 11 Atl. ine Case, 15 Wall. (U. S.) 524. For Rep. 189; Lehigh &c. Coal Co. v. a deiinition more or less similar to Lear. 8 Cent. Rep. 107; s. c. 9 Atl. this, see: Rosen v. Chicago &c. R. Rep. 267 (no off. rep.); Pennsyl- Co., 49 U. S. App. 647; s. c. 83 Fed. vania R. Co. v. Peters, 116 Pa. St. Rep. 300; 27 C. C. A. 534. 206; s. c. 8 Cent. Rep. 405; 9 Atl. Rep. 317; 19 W. N. C. 418. NEGLIGENCE IN GENERAL. [2d Ed. ercise such care, prudence, and forethought as duty requires to be given or exercised under the circumstances.' As we shall see in the next section, the introduction of the word duty, brings into the defini- tion an essential ingredient. The definition given by Baron Alderson, improved in phraseology, blends the conception of the ideal reasonable man with the standard of ordinary care, by saying that negligence may consist in 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 such a man would not do.^ The addition of the last clause to the definition is obviously necessary, since negligence may consist either in a wrongful act or a wrongful omission:'' the omission to do something, or the doing of something, which a reasonable man, guided by those consid- erations which ordinarily regulate the conduct of human affairs, would do or omit to do under like circumstances.* In one sense, how- ever, it is a sin of omission merely, — the omission to use that degree of care, diligence and skill which it is the legal duty of the person to use, for the protection of another person from injury.* § 2. The Failure to Exercise the Prescribed Degree of Care. — Other definitions make negligence the failure to exercise that degree of care, which ordinarily prudent persons are accustomed to exercise under like circumstances.^" ^ow, while care, and its antithesis, negligence, can not be divided into mathematical degrees, and while such attempts in Jury trials can only end in misleading the jury, yet it remains that the law does demand a higher degree of care, attention and diligence in some situations than in others, — as in the case of a carrier of pas- sengers, where human beings are, in a sense, the subject of the bail- ment. ^^ Accordingly, it has been said that negligence is a failure of the duty to observe the degree of care which the law imposes for the protection of interests likely to be injuriously affected by a want of it.^^ It is plain that this definition could not be stated to a jury, in "Brotherton v. Manhattan Beach 629; s. c. 21 N. Y. Supp. 782; 2 Misc. Imp. Co., 48 Neb. 563; s. c. 33 L. R. (N. Y.) 72. A. 598; 67 N. W. Rep. 479; aff'd on "Bucki v. Cone, 25 Flor. 1; s. c. 6 rehearing in 50 Neb. 214; s. c. 69 N. South. Rep. 160. W. Rep. 757. »» Greef v. Brown, 7 Kan. App. " Brotherton v. Manhattan Beach 394; s. c. 51 Pac. Rep. 926; Moulder Imp. Co., 48 Neb. 563; s. c. 33 L. R. v. Cleveland &c. R. Co., 1 Ohio N. P. A. 598; 67 N. W. Rep. 479; aff'd on 361; s. c. 2 Ohio Leg. News, 540. rehearing in 50 Neb. 214 ; s. c. 69 N. " The negligence of carriers of W. Rep. 757. passengers is considered in a future 'Timlin v. Standard Oil Co., 126 volume. N. Y. 514; s. c. 54 Hun (N. Y.) 514; '^Webster v. Symes, 109 Mich. 1; 21 N. Y. St. Rep. 42; 7 N. Y. Supp. s. c. 2 Det. L. N. 982; 66 N. W. Rep. 158. 580. " Elze v. Bauman, 49 N. Y. St. Rep. 1 Thomp. Neg.] general principles and theories. instructing them, without a further explanation of the degree of care which the law imposes in the particular circumstances; otherwise it would commit a question of law to the decision of the jury. As we shall see hereafter/* the standard of care is not a fixed, ideal stand- ard, applicable to all situations, but varies according to the prob- ability of danger to others ; so that a greater degree of care and a more exact and sustained attention are demanded in a dangerous situation than in one not ordinarily attended with danger. I^o definition of negligence can, therefore, be accurate which does not refer to the degree of care demanded of the person sought to be charged, under the circumstances and surroundings of the particular case. A definition which makes the standard what a reasonable and prudent man would ordinarily do under the circumstances of a particular case, comes per- haps as near the true conception as can be attained in a single sen- tence. It may be said to be the failure to do what a reasonable and prudent person would ordinarily do under the circumstances, or in the situation, or the doing what such a person under the circumstances or in the situation would not do ; and it may be added, that the fault may lie in omission or in commission.^* § 3. Negligence Predicated Only on a Failure of Legal Duty. — An essential ingredient in any conception of negligence is that it involves the violation of a legal duty, which one person owes another, — the duty to take care, for the safety of the person or property of the other ; and the converse proposition is that, where there is no legal duty to '^^Post, §§ 25, 26. form some act required by law, or " Saldana v. Galveston &c. R. Co., doing it in an improper manner : 43 Fed. Rep. 862 ; Lindvall v. Woods, Nolan v. New York &c. R. Co., 53 44 Fed. Rep. 855; Ellis v. Lake Conn. 461; s. c. 1 N. E. Rep. 826. A Shore &c. R. Co., 138 Pa. St. 506; s. want of ordinary care under the c. 27 W. N. C. 145; 21 Atl. Rep. 140; circumstances: Pennsylvania R. Co. 25 Pitts. L. J. (N. S.) 361; 48 Phila. v. Coon, 111 Pa. St. 430; s. c. 2 Cent. Leg. Int. 336. Other definitions, Rep. 323. The failure to observe more or less similar to those in this such care, precaution, and vigilance section, may be found in the follow- as the circumstances justly do- ing cases: Schumacher v. St. Louis mand: Jacksonville Street R. Co. v. &c. R. Co., 39 Fed. Rep. 174; s. c. 17 Chappell, 21 Fla. 175. Is a question Wash. L. Rep. 550; Pattoil v. South- of conduct, and not of property: ern R. Co., 82 Fed. Rep. 979; s. c. 42 Mayhew v. Burns, 103 Ind. 328; s. c. U. S. App. 576; 27 C. C. A. 287; Mc- 1 West. Rep. 577. The words "un- Kay V. Buffalo Bill's Wild West Co., lawful" and "wrongful" as pertain- 17 Misc. (N. Y.) 601; s. c. 40 N. Y. ing to negligence, are said to be Supp. 592; Bittner v. Crosstown synonymous ; and therefore a plaint- Street R. Co., 153 N. Y. 76; s. c. 12 iff who asked to go to the jury on Misc. 514; 67 N. Y. St. Rep. 367; 33 the question of the defendant's act N. Y. Supp. 672. If it can be of any being wrongful, did not thereby possible advantage to the reader to abandon the theory of negligence, pursue this subject further, a few Wells v. Sibley, 31 N. Y. St. Rep. 40; more definitions of negligence will s. c. 9 N. Y. Supp. 343. be given here: — A failure to per- NEGLIGENCE IN GENERAL. [2d Ed. exercise care, there can be no actionable negligence.^' Therefore, it is reasoned that a plaintiff who grounds his action upon the negli- gence of the defendant, must show not only that the conduct of the defendant was negligent, but also that it was a violation of some duty which the defendant owed to him.^* So, if a customer in the shop of a merchant, inadvertently lays his poeketbook down and it is stolen, he can not recover damages from the merchant, in the absence of affirmative misconduct on his part, or on the part of his servants; since the merchant is under no legal obligation to watch the pocket- books of his customers.^' Care must be exercised with reference to the meaning and the application of this principle; since, in most cases, the law imposes upon every man the duty, whether acting by himself or by others, of taking care to the end that other persons shall not be injured by his acts or omissions. The meaning is to exclude from the definition all that category of eases where the law imposes no duty of taking care to the end of avoiding injury to third persons at all. For example, the owner or occupier of real property is not ordinarily bound to keep it in any particular condition of safety, for the benefit of mere trespassers, that is to say, those who come upon his premises without his invitation, express or implied, or without lawful right. ^* "Cleveland &c. R. Co. v. Ballen- tlne, 56 U. S. App. 266; s. c. 84 Fed. Rep. 935; 28 C. C. A. 572; Crane Ele- vator Co. V. Lippert, 63 Fed. Rep. 942; s. c. 11 C. C. A. 521; Baltimore City Pass. R. Co. v. Nugent, 86 Md. 349; s. c. 38 Atl. Rep. 779; 39 L. R. A. 161; Zimmermann v. Bauer, 11 Ind. App. 607; s. c. 39 N. E. Rep. 299; Cusick v. Adams, 15 N. Y. 55; s. c. 47 Hun (N. Y.) 455; 40 Alb. L. J. 48; 23 N. Y. St. Rep. 548; 21 N. B. Rep. 673; Lehigh &c. Coal Co. V. Lear, 8 Cent. Rep. 109 ; 9 Atl. Rep. 267; O'Leary v. Brooks Elevator Co., 7 N. D. 554; s. c. 75 N. W. Rep. 919; 41 L. R. A. 677; Sisk v. Crump, 112 Ind. 504; s. c. 12 West. Rep. 136; 14 N. E. Rep. 381; Spilttorf v. State, 108 N. Y. 205; s. c. 10 Cent. Rep. 699; 15 N. E. Rep. 222; Warsaw v. Dunlap, 112 Ind. 379; s. c. 12 West. Rep. 140; 14 N. B. Rep. 568. " Newark Electric Light &c. Co. v. Garden, 39 U. S. App. 416; s. c. 78 Fed. Rep. 74; 23 C. C. A. 649. On the other hand, it is scarcely neces- sary to suggest that negligence can not be predicated upon the omission by a party to do what he has no legal right to do: Veder v. Little Falls, 100 N. Y. 343; s. c. 1. Cent. Rep. 522. Thus, a railroad company shipped a lot of lumber to an owner who was erecting a building. The lumber was so piled as to be secure until the stakes of the car were re- moved. A contractor with the own- er for the erection of the building undertook to unload the lumber by removing all the stakes. Thereupon the lumber fell down upon a third person, causing his death. It was held that, as the railroad company owed no duty to him in respect of the manner of loading the lumber, there could be no recovery of dam- ages by his administrator: Hulse V. New York &c. R. Co., 71 Hun (N. Y.) 40; s. c. 54 N. Y. St. Rep. 66; 24 N. Y. Supp. 512; citing Hexamer v. Webb, 101 N. Y. 377; McAlpin v. Powell, 70 N. Y. 126; distinguish- ing Thomas v. Henges, 131 N. Y. 453. "Powers V. O'Neill, 89 Hun (N. Y.) 129; s. c. 68 N. Y. St. Rep. 842; 28 Chicago Leg. News 27; 34 N. Y. Supp. 1007. ^^Post, § 946, et seq. This rule is subject to qualifications designed to promote the safety of children, and 1 Thomp. Neg.J general principles and theories. § 4. How this Duty of Taking Care Arises. — The duty of taking care, the failure to perform which gives rise to an action upon the ground of negligence, may be a duty assumed by contract, as in the case of a bailee, or it may be a duty imposed by implication of law under the circumstances of any given case. For example, the execu- tors and trustees named in a will, in whom the legal title to the prop- erty is vested, are not liable to third persons for injuries arising from their failure to keep the premises in repair, where, in pursuance of the will, the widow is in possession, and they are not authorized, under the will or under the governing statute, to repair the premises, or to expend the assets of the estate in their hands for that purpose. ^° But under the terms of the will, or of the governing statute, a duty may rest upon them of keeping the premises in repair; and then the in- quiry will be in favor of whom that duty is imposed upon them, — whether it is a general duty, such as rests upon all proprietors of real property, or whether it is merely a duty which they have assumed as trustees for the specific devisees of the property under the will. In either case, it seems plain that their failure to keep the premises in re- pair would give rise to an action against them personally, and in the latter case, against their sureties, if they have given a bond for the faithful performance of their duty: upon no just principle could the funds of the estate, belonging in equity to other persons, to creditors and to legatees, be charged with the payment of damages for the dere- liction of the executors and trustees.^" § 5. Failure to Perform Duties Assumed by Contract. — Closely connected with the foregoing, is the subject of the failure to perform duties assumed by contract. This opens up a wide field for discus- sion, which, in so far as it embraces matters within the plan and scope of the present work, will be considered in future chapters. Attention is here called to the fact that, in dealing with any question of negli- gence which consists in the breach of a duty assumed by contract, two things must be attended to : 1. Toward what party was the duty assumed. 2. Whether the agreement was to bring about an absolute result, or merely to exercise reasonable care to that end. Under the first head, it will often become necessary to consider whether a given contract created an obligation in favor of the obligee therein only, or whether it went further, and created an obligation in favor of third to some other qualifications which ^ See, on this subject, the reason- can not be introduced here. ing in Ferrier v. Trepannier, 24 Can. "Butler v. Townsend, 84 Hun (N. S. C. 86. Y.) 100; s. c. 65 N. Y. St. Rep. 33; 31 N. Y. Supp. 1094. 6 NEGLIGENCE IN GENERAL. [2d Ed. persons, giving them a right of action for its breach, or in favor of the public generally, so that any member of the public, injured by its breach, might maintain an action against the obligor.^^ Under the second head, it ought to be kept in mind that, vi^here the contract in- volves an absolute agreement to produce a stated result, no question of negligence can arise at all; since, by the terms of the agreement, the obligor becomes an insurer. On the other hand, in that vast class of cases where the obligor contracts merely to exercise due or reasonable care, or where such is the implication of law under the given contract, as in the case of undertakings by warehousemen; by carriers under bills of lading excluding their liability for damage ex- cept in case of their negligence; in the case of agisters and other bailees; in the case of physicians, surgeons, lawyers; bankers acting as collecting agents; other agents and factors; and, in general, all per- sons engaging to exercise reasonable skill and diligence in any par- ticular profession or undertaking, — the question of negligence will arise, generally in favor of the obligee in the contract only, but some- times in favor of another party — such as the consignee of goods — for whose benefit the contract was made. As a general rule, a person suing to recover damages for the breach of a contract to render a service requiring skill, must show either that there has been no at- tempt at performance, or that there has been negligence or unskillful- ness in the performance, working damage to the plaintifE. Thus, it was said by Mr. Justice Strong that "an engagement to toiv does not impose either the obligation to insure, or the liability of common car- riers. The burden is always upon him who alleges the breach of such a contract, to show that there has been no attempt at performance, or that there has been negligence or unskillfulness, to his injury, in the performance. Unlike the case of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault. The contract requires no more than that he who un- dertakes to tow shall carry out his undertaking with that degree of caution and skill which prudent navigators usually employ in similar services. But there may be cases in which the result is a safe cri- terion by which to judge of the character of the act which caused it.^^ ^' Take, for example, the case by the traveller, since his contract where a contractor agreed with a was with the county, and since he county to build a permanent bridge, had committed no breach of duty SLTid aiso to \)\ii\A a, temporary bridge toward the traveller: Marvin Safe for use while the permanent bridge Co. v. Ward, 46 N. J. L. 19. was being erected. While a travel- ""The Webb, 14 Wall. (U. S.) 406, ler was crossing the temporary 414; again quoted in The Burling- bridge it fell, injuring him. Here tun, 137 U. S. 386; s. c. 34 L. ed. 731; it was held that the contractor was 11 Sup. Ct. Rep. 138. not liable for the damage sustained 1 Thomp. Neg.] general principles and theories. § 6. No Contractual Relation Necessary to Support it. — On the other hand, it is scarcely necessary to say that no contractual relation is necessary in order to raise a legal obligation in one person to take care for the safety of another. Thus, the fact that one who negli- gently stretches a hawser over a tramway, over which cars frequently run, sustains no contractual relation to the driver of one of the cars, who is injured by the cars coming into collision with the hawser, does not relieve the author of the nuisance from liability for the injury.^' So, where personal property is rightfully stored in a good place, it is the duty of every one who knows, or ought to know that it is there, to use reasonable care to avoid injuring it, whether he knows who is the owner of it or not ;^* and as we shall see hereafter, this rule is applied in many situations, in the case of property improperly or unlawfully stored or left in a given place, since that fact does not give to third persons a license to destroy it. § 7. Distinction between a Failure of Duty through Carelessness, and through Wantonness. — In discussing the rule under considera- tion in this paragraph, it is often said that negligence is a violation, through heedlessness or inattention, of some legal duty which one per- son owes to another.^ ^ But it is plain that the rule equally applies, and even more strongly, where the duty of taking care, which the law ^EUa V. Boyce, 112 Mich. 552; Louisiana Code entitled Offenses s. c. 4 Det. L. N. 106; 70 N. W. Rep. and Quasi-Offenses, and it is found- 1106. This doctrine is further illus- ed on fault, negligence, imprudence, trated by a case where one who has or want of skill, that constitutes the permission from a land-owner to act illegal and the obligation of the place building materials in a private participants solidary: Cline v. road, does it in such a way as to Crescent City R. Co., 41 La. An. cause injury to one who has permis- 1031; s. c. 6 South. Rep. 851. So it sion of the land-owner to pass over has iDeen theorized that a party ex- the road : Corby v. Hill, 4 C. B. 554. ercising due and ordinary care for Or where one negligently places ob- his personal safety may recover for structions in the hallway of a build- an injury by the negligent acts of ing, causing injury to an employ^ of another, where both parties are a tenant : Crane Elevator Co. v. e .ually in a position of right, which Lippert, 63 Fed. Rep. 942. Or where they hold independently of each one so negligently manufactures an other; and the plaintiff is only article, not ordinarily dangerous, bound to show that the injury was that, by reason of such negligence, produced by the negligence of the it is liable to endanger the life or defendant and that he exercised or- limb of one using it, in which case dinary care to avoid it: Vandalia he becomes liable to one using such v. Ropp, 39 111. App. 344. article in the usual course of busi- ^ Moomey v. Peak, 57 Mich. 259 ; ness and injured thereby, even s. c. 23 N. W. Rep. 804. though there be no Contract relation ^ Parrell v. Waterbury Horse R. between the manufacturer and the Co., 60 Conn. 239; s. c. 21 Atl. Rep. user: Schubert v. Clark, 49 Minn. 675; 46 Am. & Eng. Rail. Cas. 207; 331. It is the Implied, and not the 22 Atl. Rep. 544. See also Wabash contractual, liability of natural, as R. Co. v. Miller, 18 Ind. App. 549; well as artificial persons, which is s. c. 48 N. E. Rep. 663. treated of in the chapter of the 8 • NEGLIGENCE IN GENEKAL. [2d Ed. raises in a given situation, or under a given contract, is violated through recJclessness, wantonness or a positive intention to do harm, and where it is violated through mere heedlessness, carelessness or in- attention: in which case the misconduct is deemed in law, as it is in fact, tantamount to actual malice, and becomes the subject of exem- plary or punitive damages.^'' § 8. Negligent Ignorance : Failure of the Duty of Finding Out and Knowing.^ — It is a general principle in the law of negligence that where there is a duty of finding out and knowing, that is, a duty of inspection or inquiry, — negligent ignorance, in the intendment of the law, is equivalent to actual knowledge. This principle generally arises in the case whe-re a proprietor is employing some agency which, if allowed to become defective or out of repair, will probably lead to mischief, in which case the principle puts upon him a continuous duty of watchfulness and inspection. A full explanation of the principle would lead us into inquiries reserved for future chapters, and would be beyond the purposes of the present chapter. But a few applications may be suggested: — A master is under an obligation to take care that the premises in which, and the appliances with which, he requires his servant to work shall be reasonably safe for the pur- poses intended. A carrier of passengers is required to exercise a very high degree of care, to the end that his means of transit shall be made and kept in a safe condition. A municipal corporation is bound to exercise reasonable care, to the end that its streets and alleys are safe for the purposes of travel. In all these cases, the duty of taking care implies a continuous duty of inspection, and negligent ignorance re- sulting from a failure of this duty, is imputed to the party as actual knowledge, and his liability is the same as though he had known of the dangerous condition and had negligently failed to remedy or re- pair it.^^ So, in the case of directors of a private corporation, obvi- ^Post, § 22. ing of the accident, had they exer- a This section is cited in §§ 712, cised reasonable care so to do, — a 846, 1196, 1216, 1260. subject the full discussion of which " The principle is most frequently is reserved for a future volume, brought into application in cases though a few cases may here be where municipal corporations negli- cited for illustration: — Bassett v. gently fail to keep their highways, St. Joseph, 53 Mo. 290; Schweick- streets, alleys, etc., in a reasonable hardt v. St. Louis, 2 Mo. App. 571; state of repair. Here, the question Doherty v. Waltham, 4 Gray 596; generally is whether a sufficient Harper v. Milwaukee, 30 Wis. 365; length of time had elapsed since the Prideaux v. Mineral Point, 43 Wis. highways, streets, alleys, etc., be- 513; s. c. 6 Cent. L. J. 428; Mack v. came defective to have enabled the Salem, 6 Or. 275; Dorlon v. Brook- offlcers of the municipality, charged lyn, 46 Barb. 604; Sweet v. Glovers- with the duty, to discover the defect ville, 12 Hun 302; Wilson v. Water- and repair it prior to the happen- town, 3 Hun 508; Todd v. Troy, 61 9 1 Thomp. Neg.] general principles and theories. ously they may and must commit the details of its business to in- ferior officers and agents; but this does not absolve them from the duty of maintaining a reasonable supervision over them; and if such inferior officers or agents waste the assets of the corporation, the directors can not escape liability on the ground that they did not know of the wrong-doing, provided it appear that their ignorance was the result of failing to esercise that care which ordinarily pru- dent and diligent men would exercise under similar circumstances.^' The true theory disregards the subtle and impracticable distinctions growing out of the degrees of negligence^ but demands of them good business diligence. On the one hand, it discharges them from the liability of insurers, while, at the same time, it ascribes liability to them on the ground of being ignorant of that which could have been discovered by that good business diligence which was incumbent upon them.^' Under this rule, directors who, by their negligence, failed to discover false entries in their books, and fictitious mort- gages, running through many years, were held liable for the money secretly withdravm and covered thereby;^" nor did the fact that the managers of a savings bank had no time or ability to perform their duties, or that they had no knowledge of unlawful loans and invest- ments, relieve them from such liability.''^ N. Y. 506; McGinity v. New York, 5 Duer 674; Hart v. Brooklyn, 36 Barb. 226; Seaman v. New York, 3 Daly 147; Bush v. Geneva, 3 N. Y. S. G. (T. & C.) 409; Chicago v. Lan- glass, 66 111. 361; Peru v. French, 55 111. 317; Reed v. Northfield, 13 Pick. 94; Doulon v. Clinton, 33 Iowa 397; Rowell v. Williams, 29 Iowa 210; Boucher v. New Haven, 40 Conn. 456; Bill v. Norwich, 39 Conn. 222; Rice v. Des Moines, 40 Iowa 641; Clark v. Corinth, 41 Vt. 449 Ozier v. Hinesburgh, 44 Vt. 220 Hume V. New York, 47 N. Y. 639 Jansen v. Atchison, 16 Kan. 358 Chicago V. Murphy, 84 111. 224 Fahey v. Harvard, 62 111. 28; Lob- dell V. New Bedford, 1 Mass. 153 Harriman v. Boston, 114 Mass. 241 Howe V. Plainfield, 41 N; H. 135 Hubbard v. Concord, 35 N. H. 52 Ward V. Jefferson, 24 Wis. 342; Col- by V. Beaver Dam, 34 Wis. 285 Goodno V. Oshkosh, 28 Wis. 300 Hall V. Fond du Lac, 42 Wis. 274 Mosey v. Troy, 61 Barb. 581; Rein- hard V. New York, 2 Daly 243 ; Man- chester V. Hartford, 30 Conn. 118; Townsend v. Des Moines, 42 Iowa 657; Schmidt v. Chicago, etc. R. Co., 10 83 111. 405; Chicago v. McCarty, 75 111. 602; Cusick v. Norwich, 40 Conn. 375; Chicago v. Fowler, 60 111. 822; Chicago V. Crooker, 2 Bradw. (IlL App.) 279; Weightman v. Washing- ton, 1 Black (U. S.) 39; Noble v. Richmond (Va. Sup. Ct. App. 1879), 7 Reporter 478; Atlanta v. Perdue, 53 Ga. 608; Fort Wayne v. De Witt, 47 Ind. 391. "'Briggs V. Spaulding, 141 U. S. 132 ; Vance v. Phoenix Ins. Co., 4 Lea (Tenn.) 385; Williams v. McKay, 40 N. J. Eq. 189; s. c. 53 Am. Rep. 775; Delano v. Case, 121 111. 247; s. c. 2 Am. St. Rep. 81; Brinckerhoff V. Bostwick, 88 N. Y. 52; Corbett v. Woodward, 5 Sawyer (U. S.) 403, 416; Bank v. Hill, 56 Me. 385; s. c. 96 Am. Dec. 470; Hun v. Gary, 82 N. Y. 65; s. c. 37 Am. Rep. 546; Ack- erman v. Halsey, 37 N. J. Eq. 356; Trustees v. Bosseiux, 3 Fed. Rep. 817; s. c. 4 Hughes (U. S.) 387. =»Shea V. Mabry, 1 Lea (Tenn.) 319. Compare Murray v. Nelson Lumber Co., 143 Mass. 250. '" Williams v. McKay, 46 N. J. Eq. 25; s. c. 18 Atl. Rep. 824. '^ See further with reference to this application of the rule, 3 NEGLIGENCE IN GENERAL. [2d Ed. § 9. No Liability for Doing a Lawful Act in a Lawful Manner and without Negligence. — A proposition growing out of the principles discussed in the preceding paragraph is, that no one is legally responsi- ble in damages to another for any hurt that may result to him from the doing by the former of a lawful act in a lawful manner, and without any carelessness or negligence on his part.^^ Therefore, the general rule is that, if the legislature of a state, acting within the scope of its constitutional powers, authorizes a person or a corporation to do a certain act, and the grantee of the power exercises it carefully and skillfully, he or it will be protected from responsibility in damages for any hurt which may thereby accrue to another ; although, without such legislative authority, the act would have been a nuisance."^ This general rule unquestionably applies in the case where a third person is hurt by the exercise, without negligence, of a right granted or cre- ated by a valid municipal ordinance.^* But whether the right to do a thing is granted by the legislature of the State or by a municipal corporation, the implication of law always accompanies the grant, that where the circumstances create apprehension that its exercise may endanger the safety of others, the grantee must exercise it with due regard for their safety. ^° And there are cases where courts have taken a more enlightened, humane and just ground, by holding that where the legislature, or a municipal council, grants rights to indi- viduals to be exercised for their private benefit and profit, though for the accommodation of the public, the principles of the common law attach to the grant the implication that if, in exercising it, although without negligence, they damnify third persons, they must pay such damages.^" Under either doctrine, in order to escape liability for damages inflicted upon a stranger through the exercise of a granted right, the grantee must aver and prove his compliance with its terms.^'^ Thomp. Corp., § 4108; Swentzel v. '^ Rupard v. Chesapeake &c. R. Co., Penn Bank, 147 Pa. St. 140; s. c. 30 88 Ky. 280; s. c. 10 Ky. L. Rep. 1023; Am. St. Rep. 718; 23 Atl. Rep. 505; 11 S. W. Rep. 70. Wallace v. Lincoln Savings Bank, 89 ^"Larson v. Ring, 43 Minn. 88; 'I'enn. 630; s. c. 24 Am. St. Rep. 625; s. c. 44 N. W. Rep. 1078. Fishkill Savings Inst'n v. National " Thus, in an action by C. against Bank, 80 N. Y. 162; s. c. 36 Am. Rep. D. to recover for injuries from fall- 595; New Hope &c. Bridge Co. v. ing through a coal hole in the side- Phenix Bank, 3 N. Y. 156; Kennedy walk in front of D.'s premises, D.'s v. Green, 3 Mylne & K. 699. answer was a general denial. It ^Ulshowski V. Hill, 61 N. J. L. was held that evidence offered by 375; s. c. 39 Atl. Rep. 904; 4 Am. D., that he had obtained the usual Neg. Rep. 318. permit from the proper city authori- '^ Taylor v. Baltimore &c. R. Co., ties to construct vaults under the 33 W. Va. 39; s. c. 10 S. E. Rep. 29; walk, was properly excluded. For 39 Am. & Eng. Rail. Cas. 259. such defense, D. should have plead- " Kolb V. O'Brien, 86 111. 210. ed the permit and also averred and 11 1 Thomp. Neg.J general principles and theories. § 10. Negligence Per Se, or Statutory Negligence."^ — This seems to introduce in this place a consideration of the antithesis of the propo- sition contained in the preceding paragraph, — ^the case where the legis- lature of the State, or the council of a municipal corporation, having in view the promotion of the safety of the public, or of individual members of the public, commands or forbids the doing of a particular act. Here the general conception of the courts, and the only one that is reconcilable with reason, is that the failure to do the act commanded, or the doing of the act prohibited, is negligence as mere matter of law, otherwise called negligence per se; and this, irrespective of all ques- tions of the exercise of prudence, diligence, care or skill ; so that if it is the proximate cause of hurt or damage to another, and if that other is without contributory fault, the case is decided in his favor, and all that remains to be done is to assess his damages. ^^ § 11. Doctrine that the Violation of a Statute is no More than Prima Facie Evidence of Negligence.'' — It is to be regretted that two or three authoritative courts have fallen into the aberration of holding that the violation of a statute, or a municipal ordinance, enacted for the public safety, does not establish negligence per se, but is merely what the books term, "evidence of negligence," — that is to say, com- petent, but not conclusive evidence to be submitted to the jury on the question of negligence or no negligence.^ ° It seems to have escaped the attention of the judges who have laid down this rule, that it has the effect of clothing common juries with the Dispensing Power, — the power to set aside acts of the legislature, — a power exercised by the proved compliance with its terms. Pac. Rep. 261, 434; Chicago &c. R. Clifford V. Dam, 81 N. Y. 52. Com- Co. v. Des Lauriers, 40 111. App. 654. pare post, § 1199, et seq. b Compare §§ 438, 773, 1077, 1096, a Compare §§ 204, 210, 520, 746, 1195, 1317, where this section is re- 773, 914 sub-section 12, 951, 1077, ferred to. 1096, 1195, 1235, 1295, 1296, 1306, "'Jones v. Belt, 8 Houst. (Del.) 1317, where this section is referred 562; s. c. 32 Atl. Rep. 732; Knupfle to. V. Knickerbocker Ice Co., 84 N. Y. =»Tohey v. Burlington &c. R. Co., 488; reversing s. c. 23 Hun (N. Y.) 94 Iowa 256; s. c. 33 L. R. A. 496; 159 (Miller and Danforth, JJ., dis- 62 N. W. Rep. 761; Siemers v. Bisen, senting). Compare Pitcher v. Len- 54 Cal. 418; Tucker v. Illinois &c. non, 12 App. Div. 356; s. c. 42 N. Y. R. Co., 42 La. An. 114; s. c. 7 South. Supp. 156; McRickard v. Flint, 114 Rep. 124; St. Louis &c. R. Co. v. N. Y. 222; s. c. 13 Daly (N. Y.) 541; Huggins, 20 111. App. 639; Indiana McCamhley v. Staten Island &c. R. &o. R. Co. V. Barnhart, 115 Ind. 391; Co., 32 App. Div. 346; s. c. 52 N. Y. 13 West. Rep. 431; 16 N. B. Rep. Supp. 849; Rainey v. New York &c. 121; Clements v. Louisiana Electric R. Co., 68 Hun (N. Y.) 495; s. c. 52 Light Co., 44 La. An. 692; s. c. 16 L. N. Y. St. Rep. 677; 23 N. Y. Supp. 80. R. A. 43; 11 South. Rep. 51;' Osborne The principal New York case above v. McMasters, 40 Minn. 103; s. c. 41 quoted (114 N. Y. 222) uses the ex- N. W. Rep. 543 ; Denver &c. R. Co. v. pression "prima facie guilty of neg- Robbins, 2 Colo. App. 313; s. c. 30 ligence." 12 NEGLIGENCE IN GENERAL. [2d Ed. early kings of England, though its exercise was odious to our ances- tors, so much so that the exercise of it disappeared with the Tudors. It was revived in this country by mere judicial assumption, when the Judges, without any express constitutional warrant for so doing, laid hold of the power to set aside acts of legislation deemed by them to be opposed to the constitution. American public opinion has acqui- esced in that assumption of judicial power ; but the conception of sub- mitting the question whether an act of the legislature shall or shall not be enforced, to the caprice of a common jury, is such a revival of the Dispensing Power as was never dreamed of by our ancestors, and such as sinks acts of the legislature below the grade of by-laws of corporations; for, although the latter can be set aside and disre- garded in judicial administration when deemed unreasonable, yet it is always for the judge, and never for the jury, to decide whether or not- they are unreasonable. § 12. Whether Violations of Such Statutes Give Rise to a Private Action, or only to a Public Prosecution.^ — In considering this ques- tion, it is further to be kept in mind that there are many statutes and municipal ordinances which forbid the doing of acts, the violation of which does not necessarily give any right o£^tion ifrfavor of private individuals : the offense being againstthe j)ublic,'tb be redressed in the one case in a criminal prosecution, or in an action brought on behalf of the State by the attorna^-geq^ral, and in the other by a prosecu- tion in a municipal court. And it may be stated as a general propo- sition — though there may be difficulty in some cases in applying it — that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual, unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages, and often not then, the question depending upon judicial theories and sur- § 13. When such Statutes do not Exclude Common Law Reme- dies. — On the other hand, it does not necessarily follow that, because the legislature, or the city council, may have prohibited the doing of an act to the end of promoting the public safety, such legislation is exclusive, and that a ease must be brought within it, in order to a re- covery of damages. This is not a case where the principle applies a This section is cited in §§ 746, App. 607; s. c. 39 N. E. Rep. 299. 951, 1009, 1112, 1196. See post, §§ 1209-1212. '" Zimmermaa v. Bauer, 11 Ind. 13 1 Thomp. Neg.J general peinciplks and theories. that where the legislature creates a right and gives a remedy for the vindication of that right, that remedy alone must be pursued; but it is often a case where the legislature, out of abundant caution, enacts a statute declaratory of a principle of the common law, enforcing a common law right, and eliminating from an action where a hurt has taken place through a violation of the statute, the question whether the defendant proceeded in the exercise of ordinary care. Therefore, the mere fact that the point was not reached where the act was con- demned by the statute does not prevent the act from constituting negligence at common law.^^ Thus, as we shall see hereafter, a statute may limit the speed at which a railway train may be run along the street of a populous city or village ; and yet it may be negligence at common law, at a particular hour of the day, to run the train along that street even at a lower rate of speed. And so a statute may pre- scribe the distance from a highway, crossing a railway at grade, out- side of which the bell of an approaching locomotive must be rung or its whistle sounded; and yet the railway company may not escape liability for negligence at common law for an injury which might have been prevented by giving a warning by means of the bell or whistle, at a greater distance from the crossing. In other words, while the statute is imperative, it is not exclusive. Therefore, a declaration may fail to state a case for recovery under such a statute, and yet may state a good case, showing a duty at common law and a negligent breach of it.*^ § 14. Casus: Inevitable Accident — Injuries Proceeding from Sources for which Neither Party is Responsible. — If, in the prosecu- tion of a lawful act a casualty purely accidental happens, and one which can not be ascribed to any want of due care or skill on the part of the party sought to be made liable therefor, no matter how griev- ous, — no action can be supported for the damages arising therefrom.** The meaning is that where a man, proceeding in a lawful business, exercises reasonable care, the law does not make him an insurer of "Brunswick &c. R. Co. v. Gibson, v. Barney, 2 Abb. (U. S.) 197; 1 97 Ga. 489; s. c. 5 Am. & Eng. Rail. Sawy. (U. S.) 423; 1 Deady (U. S.) Gas. (N. S.) 441; 25 S. E. Rep. 487. 405; Losee v. Buchanan, 51 N. Y. " Parnaby v. Lancaster Canal Co., 476 ; s. c. 1 Tbomp. Neg., 1st ed., 47 ; 11 Ad. & El. 223; s. c. 3 Nev. & P. affirming s. c. 42 How. Pr. 385; re- 223; 3 Per. & Dav. 162; 1 Thomp. versing s. c. 61 Barb. (N. Y.) 86; Neg., 1st ed., 541. Brown v. Kendall, 6 Cush. (Mass.) "Brown v. Collins, 53 N. H. 442; 292; Steen v. Williamson, 92 Cal. s. c. 1 Thomp. Neg., 1st ed., 61; 65; s. c. 28 Pac. Rep. 53; Stafford v. Nitro-Glycerine Case, 15 Wall. (U. Rubens, 115 111. 196; s. c. 1 West. S.) 524; s. c. 1 Thomp. Neg., 1st ed.. Rep. 640. 42. Affirming s. c. «m6 now,. Parrott 14 NEGLIGENCE IN GENEEAL. [2d Ed. others against those consequences of his actions, which reasonable care and foresight could not have prevented. The law justly ascribes such consequences to inevitable misfortune, or to "the act of God," and leaves the harm resulting from them to be borne by him upon whom it falls.** The contrary would obviously be against public policy, because it would impose so great a restraint upon freedom as materially to check human enterprise. ^'^ In such cases, therefore, the law contents itself with inquiring whether any other person than the sufferer was at fault; and if so, it requires him to reimburse the sufferer for the loss he has sustained, unless the sufferer himself was also at fault. This doctrine, however, is predicated only of unfore- seen accidents which result from the doing of lawful acts. If a per- son do an act which is wrongful per se, or in the nature of a public nuisance, he becomes, in respect of it, an insurer of the public, and is liable for any injury which may happen in consequence of it to a person in the exercise of ordinary care, irrespective of any question as to the degree of skill or diligence exercised by himself, his agents, or servants, to prevent such injury.** A qualification of this rule, dis- " Weaver v. Ward, Hob. 134; s. c. 1 Thomp. Neg., 1st ed., 243, note; Gibbons v. Pepper, 4 Modern 405; Keighley's Case, 10 Coke 139; Alder- son V. Waistell, 1 Car. & Kir. 358; Rocbe V. Milwaukee Gaslight Co., 5 Wis. 55; Sullivan v. Scripture, 3 Allen (Mass.) 564; Bizzell v. Book- er, 16 Ark. 308'; Blyth v. Birming- ham Water- Works Co., 11 Exch. 781; s. c. 25 L. J. (Exch.) 212; Hammack V. White, 11 C. B. (N. S.) 588; s. c. 8 Jur. (N. S.) 796; 31 L. J. (C. P.) 129; 10 Week. Rep. 230; 5 L. T. (N. S.) 676; Cox v. Burbridge, 13 C. B. (N. S.) 430; s. c. 9 Jur. (N. S.) 970; 32 L. J. (C. P.) 89; 11 Week. Rep. 435; Bennett v. Ford, 47 Ind. 264; Brown v. Kendall, 6 Gush. (Mass.) 292; Vinceat v. Stinehour, 7 Vt. 62; Harvey v. Dunlop, Lalor (N. Y.) 193; Holmes v. Mather, L. R. 10 Exch. 261; s. c. 33 L. T. (N. S.) 361; 23 Week. Rep. 864; 44 L. J. (Exch.) 176. The old law, it must be con- fessed, went very far towards the rule which makes men quasi-insur- ers of their acts; and there are some modern cases which travel in the same rut. Thus, in Jennings v. Fundeburg, 4 McCord 161, the doc- trine is laid down that, to excuse a trespass on the ground of an acci- dent, it is not enough that the party did not intend it, but it must appear that it was unavoidable, and with- out the least fault on his part; "and," the court continued, "the books go so far as to say that if, by any extraordinary degree of circum- spection, even greater than is ordi- narily practiced in the affairs of life, he might have guarded against it, he shall be liable." If this is the law, the labor consumed on these volumes has been expended to no purpose. In Beach v. Parmenter, 23 Pa. St. 196, Woodward, J., says, in effect, that the accident which will excuse the defendant must have been an inevitable accident, such as no human foresight could have pre- vented. "It must appear," said Mc- Kinney, J., "that the injury was un- avoidable, or the result of some su- perior agency, without the imputa- tion of any degree of fault to the defendant." Tally v. Ayres, 3 Sneed (Tenn.) 677, 680. " This subject is thoughtfully dis- cussed by Mr. Chief Justice Holmes, in the American Law Review for January, 1880. "Congreve v. Smith, 18 N. Y. 79; Congreve v. Morgan, 18 N. Y. 84; Dygert v. Schenck, 23 Wend. (N. Y.) 446; Pfau v. Reynolds, 53 111. 212; Davenport v. Ruckman, 10 Bosw. (N. Y.) 20; Anderson v. Dickie, 1 Robt. (N. Y.) 238; s. c. 26 How. Pr. (N. 15 1 Thomp. Neg.J general principles and theories. cussed in a succeeding chapter/^ exists in cases where the injury is the combined result of the negligence of the defendant and an acci- dent for which neither the plaintiff nor the defendant is responsible ; in which case the defendant must pay damages, unless the injury would have happened if he had not been negligent. Drawing into this subject the question of contributory negligence, it follows that, when both parties exercise ordinary care, there can be no recovery, ' for in that case neither party is to blame, and it is simply an acci- dent, for which nobody, unless it be a third person, is liable.^^ § 15. Demonstrative Evidence of Negligence — Kes ipsa loqui- tur.'' — It is not intended to discuss in this volume the theories which have arisen as to what is termed "evidence of negligence." That will be reserved for the volume which deals with the title of Eemedies, Procedure and Damages. But there is one principle of such frequent application that an understanding of it seems necessary to the under- standing of the usual definitions of negligence. I have ventured to call it demonstrative evidence of negligencej for, although the evi- dence must always be detailed by the mouths of witnesses, yet when the facts are thus disclosed, they either demonstrate negligence con- clusively, or tend to demonstrate it, subject to explanation by the de- fendant showing that his conduct was consistent with due care. The principle is generally expressed in the Latin formula "res ipsa loqui- tur" "the thing itself speaks." The meaning was thus expressed -by Erie, J., in giving his judgment in a noted case : "Where the thing is shown to be under the management of the defendant or his serv- ants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the de- fendafit, that the accident arose from want of care."*^ This defini- tion has met with such general approval at the hands of judges in subsequent cases that it has become, so to speak, a legal classic. The meaning is not that the mere happening of an accidental injury is, of itself and in the abstract, presumptive evidence of negligence; it is that, in the numerous cases which fall within the above definition of the principle, the fact of the accident, when viewed in connection Y.) 105; Sexton v. Zett, 44 N. Y. 430; "Murphy v. Dayton, 8 Ohio S. & Creed v. Hartman, 29 N. Y. 591; C. P. Dec. 354. Storrs V. Utica, 17 N. Y. 105; Baxter a This section is cited in §§ 711, V. Warner, 6 Hun (N. Y.) 585; Biz- 732, 763, 770, 787, 1059, 1082. zell V. Boolter, 16 Arlc. 308. " Scott v. London Docks Co., 3 *'Posi, § 68. Hurl. & Colt. 596. 16 NEGLIGENCE IN GENERAL. [2d Ed. with the circumstances under which it took place, tends to demon- strate negligence, subject to explanation.^" " Those who have the curiosity to pursue this definition maxim fur- ther can do so by examining the fol- lowing cases: Summerfield v. Phoenix Assur. Co., 65 Fed. Rep. 292; The Millie R. Bohannon, 64 Fed. Rep. 883; Lucas v. Richmond &c. R. Co., 40 Fed. Rep. 566; The Baron Innerdale, 93 Fed. Rep. 492; Brown- held V. Chicago &c. R. Co., 107 Iowa 254; s. c. 5 Am. Neg. Rep. 331; 77 N. W. Rep. 1038; Benedick v. Potts, 88 Md. 52; s. c. 4 Am. Neg. Rep. 484; 40 Atl. Rep. 1067; 41 L. R. A. 478; Bartnik v. Brie R. Co., 36 App. Div. 246; s. c. 55 N. Y. Supp. 266; 5 Am. Neg. Rep. 432; East End Oil Co. v. Penn. Torpedo C^, 190 Pa. St. 350; s. c. 44 W. N. C. 33; 29 Pitts. L. J. (N. S.) 351; 42 Atl. Rep. 707; O'Neal V. O'Connell, 167 Mass. 388; s. c. 45 N. E. Rep. 758 ; Harhinson v. Metro- politan R. Co., 9 App. D. C. 60; s. c. 24 Wash. L. Rep. 438; Ewing v. Goode, 78 Fed. Rep. 442; Anderson Lumber Co. v. Greenwich Ina. Co., 79 Fed. Rep. 125; Schaum v. Equit- rble Gaslight Co., 15 App. Div. 74; s. c. 44 N. Y. Supp. 284; Stallman v. New York Steam Co., 17 App. Div. 397; s. c. 45 N. Y. Supp. 161; Hart v. Washington Park Club, 157 III. 9; s. c. 29 L. R. A. 492; 48 im. St. Rep. 298; 41 N. E. Rep. 620; Western U. Tel. Co. V. State, 82 Md. 293; s. c. 31 L. R. A. 572; 33 Atl. Rep. 763; Welsh V. Murray, 2 App. Div. 205; s. c. 72 N. Y. St. Rep. 862; 37 N. Y. Supp. 882; Davidson v. Lake Shore &c. R. Co., 171 Pa. St. 522; s. c. 37 W. N. C. 317; 26 Pitts L. J. (N. S.) 173; 33 Atl. Rep. 86; Donnelly v. Booth Bros. &c. Co., 90 Me. 110; s. c. 37 Atl. Rep. 874; Liberty Ins. Co. v. Central Vt. R. Co., 19 App. Div. 509; s. c. 56 Alb. L. J. 96; 46 N. Y. Supp. 576; Cross v. Koster, 17 App. Div. 402; 45 N. Y. Supp. 215; Magee v. Brooklyn, 18 App. Div. 22; s. c. 45 N. Y. Supp. 473; Reed v. McCord, 18 App. Div. 381; s. c. 46 N. Y. Supp. 407; McCray v. Galveston &c. R. Co., 89 Tex. 168; s. c. 3 Am. & Eng. Rail. Cas. (N. S.) 276; 34 S. W. Rep. 95; reversing 32 S. W. Rep. 548; Nichols V. Peck, 70 Conn. 439; s. c. 40 L. R. A. 81; 39 Atl. Rep. 803; Trenton Pass. R. Co. V. Cooper, 60 N. J. L. 219; s. c. 38 L. R. A. 637; 37 Atl. Rep. 730; Nelson v. Lehigh Valley R. Co., 25 App. Div. 535; s. c. 50 N. Y. Supp. 63; Wolf v. American Tract Soc, 25 App. Div. 98; s. c. 49 N. Y. Supp. 236; Snyder v. Wheeling Elec- trical Co., 43 W. Va. 661; s. c. 39 L. R. A. 499; 28 S. E. Rep. 733; Giraudi V. Electric Improv. Co., 107 Cal. 120; s. c. 24 L. R. A. 596; 40 Pac. Rep. 108; Judson v. Giant Powder Co., 107 Cal. 549; s. c. 40 Pac. Rep. 1020; Excelsior Electric Co. v. Sweet, 57 N. J. L. 224; s. c. 48 Am. & Eng. Corp. Cas. 196; 30 Atl. Rep. 553; DeWalt v. Doran, 21 D. C. 163; En- nis V. Gray, 87 Hun (N. Y.) 355; s. c. 34 N. Y. Supp. 379; Reynolds v. Van Beuren, 10 Misc. 703 ; s. c. 64 N. Y. St. Rep. 633; 31 N. Y. Supp. 827; Shields v. Robins, 12 Misc. 332 ; s. c. 33 N. Y. Supp. 639; Sheridan v. Foley, 58 N. J. L. 230; s. c. 33 Atl. Rep. 484; Clarke v. Nassau Electric R. Co., 9 App. Div. 51; s. c. 41 N. Y. Supp. 78; Dominion &c. Co. v. Cairns, 28 Can. S. C. 361; Hygienic Plate &c. Co. V. Raleigh &c. R. Co., 122 N. C. 881; s. c. 29 S. E. Rep. 575; Tennessee &c. R. Co. v. Hayes, 97 Ala. 201; 12 South. Rep. 98; Arkan- sas Teleph. Co. v. Ratteree, 57 Ark. 429; s. c. 21 S. W. Rep. 1059; St. Louis &c. R. Co. V. Mitchell, 57 Ark. 418; s. c. 21 S. W. Rep. 883; Pinney V. Hall, 156 Mass. 225; 30 N. E. Rep. 1016; Loeber v. Roberts, 42 N. Y. St. Rep. 687; s. c. 17 N. Y. Supp. 378; Fuchs V. St. Louis, 133 Mo. 168; 31 S. W. Rep. 115. VOL. 1 THOMP. NEG. — 2 17 1 Thomp. Neg.J general principles and theories. CHAPTER II. DEGREES OF CAEE AND NEGLIGENCE. Section Section 18. Degrees of negligence. 23. Actionable negligence is usually 19. Judicial expressions as to the the failure to exercise reason- degrees of negligence. able or ordinary care. 20. Gross negligence not equivalent 24. Instructions as to ordinary care to "willful" or "wanton" neg- which have been condemned, ligence. 25. Actionable ne^igence is the fail- 21. Only two kinds of negligence, ure to exercise that measure negligence and willful negli- of care which is proportioned gence. to the danger to be avoided. 22. What is "willful" or "wanton" 26. Illustrations of this principle. negligence? § 18. Degrees of Negligence.^ — Lord Holt, C. J., in a celebrated ease/ divided negligence into three degrees, slight, ordinary and gross. In this he is supposed to have made an attempt to follow the Eoman law, but later investigators have pointed out that culpa levis- sima, or slight negligence, was unknown to the Roman law, but was one of the refinements of the Middle Ages.^ I confess myself care- less, ignorant and indifferent upon this whole subject of the degrees of negligence. It is plain that such refinements can have no useful place in the practical administration of Justice. N^egligence can not be divided into three compartments by mathematical lines. Ordinary jurors, before whom, except in cases in admiralty, actions grounded on negligence are always tried, are quite incapable of understanding such refinements. It is certainly true, as we shall see in a subsequent volume, that, in the ease of common carriers of passengers, the law demands a very high, exact and unremitting care and attention ; and, in advising a jury, in such a case, of the degree of care required of the defendant, the judge will employ different language from that used a Compare §§ 269, 299, where this edness for several thoughts on this section is referred to. subject to an article by Frederic C. 1 Coggs V. Bernard, 2 Lord Ray- Woodward, of Middletown, N. Y., in mond 909 (Anno 1703). the T Galveston &c. R. Co. v. Cham- 257; 48 N. W. Rep. 559. See also bars, 73 Tex. 296; s. c. 11 S. W. Rep. Clifford V. Denver &c. R. Co., 9 279. Colo. 338; s. c. 12 Pae. Rep. 219. 63 1 Thomp. Neg.J proximate and remote cause. ing in process of construction, the wall of which at such place had been completed for the time, was not the proximate cause of an injury by the fall of a brick from the cornice, pushed off by an intruder or unauthorized employe.*^ A railroad company negligently stored oil upon a platform of its station and allowed it to remain there, in viola- tion of a statute. A person came to deliver goods, who was not a servant, agent or guest of the railroad company, and negligently dropped a match upon the platform, starting a fire and causing dam- age to the plaintiff. It was held — erroneously and in violation of the foregoing principle, as the writer thinks — that the negligent and unlawful act of the railroad company was not the proximate cause of the damage which the plaintiff suffered. ^^ It seems that in the exer- cise of ordinary care and prudence the railroad company ought to have foreseen that the carelessness of persons coming upon its station plat- form might ignite any inflammable material there stored, and pro- duce the very mischief which happened. In conformity with the foregoing principle, the same court has held that the negligence of a guardian in leaving certificates of stock indorsed with her signature, in a bank for safe keeping, is not the proximate cause of the act of a third person in advancing money upon them for a debt of the cashier of the bank, who has feloniously used them to procure such an ad- vance; since his criminal conduct could not be reasoiffibly antici- pated.'^ § 62. Purther Illustrations of this Principle. — Thus, A. negli- gently leaves his horse unhitched in a crowded street. The horse *' Mayer v. Thompson-Hutchinson who was provisionally in the employ Building Co., 116 Ala. 634; s. c. 22 of the insurance company awaiting South. Rep. 859. action by the guaranty company. '- Stone V. Boston &c. R. Co., 171 The court held that the insurance Mass. 536; s. c. 51 N. B. Rep. 1; 41 company refused employment to L. R. A. 794; 4 Am. Neg. Rep. 490. plaintiff because he did not give a '= O'Herron V. Gray, 168 Mass. 573; bond; and the guaranty company s. c. 40 L. R. A. 498; 47 N. E. Rep. refused the bond because of defend- 429. On the same principle the ant's defamatory remarks. Hence, failure of an official body to appor- between the wrong of the defendant tion a school fund among the local and the damage to plaintiff the vol- school corporations at the time re- untary act of a third person inter- quired by the governing statute, was vened. - Where special held not to be the proximate cause damage is necessary to sustain an of the loss of such fund by the felo- action for slander, it is not sufficient nious act of. the state treasurer in to prove a mere wrongful act of a appropriating them to his own use third person induced by the slander, after the time when they should such as that he dismissed plaintiff have been apportioned: State v. from his employ before the end of Ruth, 9 S. D. 84; s. c. 68 N. W. Rep. the term for which they had con- 189. In McDonald v. Edwards (20 tracted: but the special damage Misc. (N. Y.) 523; s. c. 46 N. Y. must be a legal and natural conse- Supp. 672), the action proceeded quence of the slander: Vicars v. upon the principle that an action Wilcocks, 8 East 1 ; Lynch v. Knight, would lie against defendant for pro- 9 H. L. Gas. 577. curing the discharge of plaintiff, 64 GENERAL DOCTRINES. [2d Ed. runs away, and, while going violently down the street, people run towards it, endeavoring to stop it. This causes the horse to swerve from the course it is taking, and brings it into contact with the horse and sleigh of B., causing damage to B. A. is answerable for the dam- age which B. has thus sustained.** So, A., a dealer in lumber, negli- gently piled some timbers on each other near a passage-way. A wheel of the wagon of B., a customer, casually caught in a timber projecting from the pile, and threw the whole structure down upon C, another customer. Although the timbers had been thus piled several months before the accident, it was held that the negligence of A. was the proximate cause of the injury to C.*^ So, the water-commissioners of a city make an excavation in a street, for the purpose of laying water-pipes. At night they erect barriers to prevent travellers from falling into it. During the night, a trespasser removes the barriers without their knowledge, and a traveller falls into the hole and is in- jured. If it was their duty to guard the excavation during the night, the city is liable; if not, the intervening wrong of the tres- passer is to be deemed the-proximate cause of the injury, and not the negligence of the water-commissioners." So, the owner and occu- pier of premises fronting on a public street is not liable for injuries to one who falls into a coal-hole properly constructed in the sidewalk, if the lid has been removed by a trespasser, or by one in an independ- ent employment, unless he had reason to believe that the cover would be removed, or unless, after its removal, he suffers the hole to remain open, and there had elapsed a reasonable time within which a prudent man would have discovered its open condition.*^ So, A. erects a dam below the mill of B., of such a height that the back-flow of the water does not interfere with B.'s mill. Subsequently, however, in conse- quence of a new process of mining going into operation on the stream above both mills, great quantities of sediment are deposited in such a manner as, in connection with A.'s dam, to injure B.'s mill. A. is not liable to B., for the mischief is produced by an intervening re- sponsible cause which could not have been foreseen by A.** So, a loaded wagon, driven with reasonable care, was strained and injured by a defect in the highway. The driver stopped, examined it, pro- ceeded on his journey, and, after passing over a rough and muddy road, came upon a smooth and level road, where an axle-tree brok^, and he was thrown from the wagon and injured. It was held that he "Griggs V. Fleckenstein, 14 Minn. 60 111. 264; Dolierty v. Waltham, 4 81. Gray (Mass.) 596. "^ Pastene v. Adams, 49 Cal. 87. " Harrison v. Collins, 86 Pa. St. •*" Parker v. Cohoes, 10 Hun (N. 153; s. c. 5 Reporter 760. y.) 531. See 2 Thomp. Neg. 1st ed. =« Proctor v. Jennings, 6 Nev. 83. 766. Compare Sterling v. Thomas, VOL. 1 THOMP. NEG. — 5 65 1 Thomp. Neg.] proximate and remote cause. could not recover damages of the town. The town was liable for the original injury to the wagon, but the intervening negligence of the driver was the efficient cause of the injury to him.*° § 63. Still Further Illustrations. — In another case, hoisting-shears were held in position by two guys. A stevedore cast the front guy loose, and did not refasten it. The next day, some boys swung on the rear guy, and caused the shears to fall and break. They would not have fallen but for the swinging of the boys, and the swinging of the boys would not have caused them to fall had the stevedore refast- ened the front guy. The court held that the stevedore was not liable for the injury to the shears caused by the fall."" The servant of A., at the close of his day's work, negligently left his truck in a public street, with the shafts shored up in the customary manner, and sup- ported by a plank. The driver of B.'s truck, proceeding with ordi- nary care and sldll, accidentally drove his truck into A.'s truck, whereby the shafts were knocked down, swung around horizontally upon the sidewalk, and struck C, a passer-by. A. was held liable to pay damages to C.°^ If A. negligently leaves a dangerous machine in a street or other public place, and B., a child, in playing with it, sets it in motion or throws it down, so that it injures C, another child, A. must pay damages to C, notwithstanding the intervening negligence of B."^ By an English drainage act,''^ the commissioners were to construct a cut, with proper walls, gates, and sluices, to keep out' the waters of a tidal river ; and also a culvert under the cut, to carry off the drainage from the lands on the east to the west of the cut, and to keep the same at all times open. In consequence of the negligent construction of the gates and sluices, the waters of the river flowed into the cut, and, bursting its western bank, flooded the adjoin- ing lands. The plaintifl', and other owners of lands on the east side of the cut, closed the lower end of the culvert, which prevented the wa- ters from overflowing their lands to any considerable extent; but the occupiers of lands on the west side, believing that the stoppage of the culvert would be injurious to their lands, reopened it, and so let the waters through, upon the plaintiff's land, to a much greater ex- tent. The court held that the commissioners were responsible -for the *»Jenks V. Wilbraham, 11 Gray Works, 107 Mass. 104. Compare (Mass.) 142. Mangan v. Atterton, L. R. 1 Exch. ""Tutein v. Hurley, 98 Mass. 211. 238; s. c. 35 L. J. (Bxcli.) 161; 14 "Powell v. Deveney, 3 Gush. 300. Week. Rep. 771; 4 Hurl. & Golt. 388; °= Whether A. was guilty of negli- Hughes v. Macfie, 2 Hurl. & Colt, gence in exposing the machine, is, 744; s. c. 10 Jur. (N. S.) 682; 33 L. as in most other cases, a question of J. (Exch.) 177; 12 Week. Rep. 315, fact for the jury. Lane v. Atlantic »= 7 & 8 Vict., c. 106. 66 GENERAL DOCTRINES. [2d Ed. entire damage thus caused."* Where some person steals an engine of a- railroad company, and maliciously starts it along the track, causing injury to another, the company's act in leaving the engine where the criminal coidd start it is not deemed the proximate cause of the in- jury, or an act which ordinarily or naturally could have produced it.'^ § 64. Intervening Innocent Act of the Person Injured. — Where a train of causes which results in an injury to a person is set in motion by another, that other will be liable to the person injured, althougl;, the intervening act or omission of such person was the immediate cause of his receiving the injury, provided the circumstances sur- rounding him at the time were such that his act or omission ought not to be imputed to him as a fault ;°° but if the act or omission was wrongful on his part, he will be precluded from recovering damages, generally on the footing of contributory negligence. For example, A. negligently sets out a fire. B., in endeavoring to save his own property from destruction by the fire, receives an injury from it. If B. acted in the exercise of ordinary care under the circumstances, he may recover damages from A., since the law regards the negligent act of A. as the proximate cause of the injury suffered by B.*^ An ex- press company negligently left a wooden chute protruding from the side of a baggage car. The chute came in contact with the car on a side track, and injured the brakeman on duty on the baggage car. It was held that the brakeman might recover damages from the express company in the absence of negligence on his part, although the car on the side track was moved upon a signal given by him."* § 65. Intervening Negligence of the Person Injured.^ — If, through the negligence of A., B. suffers an injury without his own fault, A. is answerable for it ; but he is not answerable for any aggravation of the injury produced by the subsequent negligence of B."" The rule un- der this head is, that where the primary cause of the damages was the »* Collins v. Middle Levee Commis- 111. App. 476 ; aff'd in 179 111. 295 ; sioners, L. R. 4 C. P. 279; s. c. 38 s. c. 53 N. E. Rep. 558; 6 Am. Neg. L. J. (C. P.) 236; 20 L. T. (N. S.) Rep. 40; McGrew v. Stone, 53 Pa. 442. St. 436; Milwaukee &c. R. Co. v. "'Mars V. Delaware &c. Canal Co., Kellogg, 94 U. S. 469; s. c. 24 L. ed. 54 Hun (N. Y.) 625; s. c. 28 N. Y. 256; Henry v. Southern &c. R. Co., St. Rep. 228; 8 N. Y. Supp. 107. 50 Cal. 183. '"Post, §§ 66, 67, 195, 198, 199. a This section is cited in § 538. "Berg V. Great Northern R. Co., "Jenks v. Wilbraham, 11 Gray 70 Minn. 272; s. c. 73 N.W. Rep. 648; (Mass.) 143. This is a branch of Liming v. Illinois &c. R. Co., 81 the doctrine of contributory negli- lowa 246; Raynowski v. Detroit &c. gence, which will be discussed in R. Co., 74 Mich. 20. the next chapter. "American Exp. Co. v. Risley, 77 67 1 Thomp. Neg.J proximate and remote cause. negligence of the defendant, the plaintiff will be entitled to the full amount of the damages sustained, unless the damage has been in- creased by his own subsequent negligence; and whether this is so, or not, will be a question for the jury.^"" Thus, the expulsion of a pas- senger from a train is not a proximate cause of his death from being struck by another train, where, after his ejection near a populous city, and a public road along which he could have returned to the city, he continued to walk along the railroad track toward his destina- tion for the distance of a mile, and, although somewhat intoxicated, was not so far under the influence of liquor as to be in any material respect incapable of taking care of himself, and his death was occa- sioned by his attempting to board a moving train. ^"^ So, the act of a street car driver in striking with his whip a boy holding on to the rear of the car, and who came to him on a side opposite from that on which another car was approaching, was not deemed the proximate cause of the death of the boy, where, in running away, he heedlessly ran into such other car.^°^ § 66. Intervening Negligence of Physicians, Surgeons or Nurses, in Treating Person Injured.* — If A. has received a physical injury for which B. is liable, and A., acting in good faith, exercises reasonable care, under the circumstances, in the selection of a physician or sur- geon to treat the wound, but, notwithstanding this, the hurt is aggra- vated by the unskillful treatment of the physician or surgeon thus employed, A. may recover of B. the enhanced damages produced by the unskillful treatment: they are deemed to follow proximately from B.'s wrong.^"' The rule is the same where the injury results in death ; so that if the deceased acted in good faith, and with proper diligence in employing a physician or surgeon, but dies under his treatment, those entitled to maintain an action for damages for his death are not precluded from maintaining such action by the fact that the death would not have resulted from the accident if the de- ceased had been properly treated.^"* The reason is that the injured ""Bardwellv. Jamaica, 15 Vt. 438; ace Car Co. v. Bluhm, 109 111. 20; post, § 201. s. c. 50 Am. Rep. 601; Thompson v. >" Georgia &c. R. Co. v. George, 92 Louisville &c. R. Co., 91 Ala. 496 ; Ga. 760; s. c. 19 S. E. Rep. 813. s. c. 8 South. Rep. 406; 11 L. R. A. "''Mack V. Lombard &c. Street R. 146; Lyons v. Erie R. Co., 57 N. Y. Co., 18 Wash. L. Rep. 84. 489; Tuttle v. Farmington, 58 N. a Compare §§ 64, 149, 202, 633, 941. H. 13; Bardwell v. Jamaica, 15 Vt. ^'"Post, § 201; Collins v. Council 438; Eastman v. Sanborn, 3 Allen Bluffs, 32 Iowa 324; Rice v. Des (Mass.) 594. See also Tuttle v. Moines, 40 Iowa 638 (Cole, J., in Holyoke, 6 Gray (Mass.) 447; Dean both of these cases dissenting) ; v. Keate, 3 Camp. 4. Stover V. Bluehill, 51 Me. 439; Loe- "*Caven v. Troy, 15 App. Dlv. 163; ser V. Humphrey, 41 Ohio St. 378; s. c. 44 N. Y. Supp. 244. s. c. 52 Am. Rep. 86; Pullman Pal- 68 GENEKAL DOCTRINES. [2d Ed. person, having exercised ordinary care, caution, and judgment in selecting a physician, nurse, or surgeon, is not made by the law an in- surer of the professional skill and knowledge of the person thus selected, and also of his immunity from mistakes, accidents, and errors of judgment.^ °° Another obvious reason is that, in the pres- ent imperfect state of the medical and surgical art, mistakes of judg- ment on the part of physicians and surgeons are to be anticipated by wrong-doers, as likely to follow the infliction of physical injuries upon others. On this subject it has been well said : "In the present imperfect state of medical science, and amidst the conflicting theories of medical men, as well as the uncertain reliance .to be placed upon the different modes of treating injuries and diseases, it would not be difiicult to make it doubtful, in a given case, if the professional treat- ment might not have been improved, or was unskillful, and thus a way of escape might be prepared for wrong-doers from the legitimate and legal consequences of their negligence or misconduct. The prin- ciple, therefore, of holding the defendants responsible, is founded in sound reasons of public policy."^"' Therefore, where a person who, through the negligence of another, has received an injury which, without a surgical operation, would cause his death, employs a compe- tent and skillful surgeon, by whose mistake the operation is not suc- cessful, and the patient dies, the wrong-doer is not released from lia- bility by reason of the surgeon's error; and this although the opera- tion is the immediate cause of the death.^"^ The same conclusion is clearer where the surgeon makes no mistake, but where the death re- sults from the nervous shock caused by the operation.^"* Under this doctrine, it has been held that the fact that a surgeon, who acted for an employer and amputated an injured employe's leg, may have been mistaken as to the necessity of such amputation, will not prevent a recovery against the employer, where the servant himself was guilty of no negligence in obtaining or submitting to the amputation.^"* So, it has been held that mortal injuries occasioned by the negligence of another person create a liability for the resulting death, although the death was hastened by poison taken as a medicine by mistake, but which would not have caused death so soon except for the injuries. But otherwise, if the death would not have resulted from the original injury, but for the mistake in giving the poison."" So, A. hired the ""Stover V. Bluehill, 51 Me., 439. "» St. Louis &c. R. Co. v. Doyle ""Stover V. Bluehill, 51 Me. 442. (Tex. Civ. App.), 25 S. W. Rep. 461. "" Sauter v. New York Central &c. "° Thompsoii v. Louisville &c. R. R. Co., 66 N. Y. 50. Co., 91 Ala. 496; s. c. 8 South. Rep. ""Rettig V. Fifth Ave. Transp. Co., 406; 11 L. R. A, 146. 6 Misc. (N. Y.) 328; s. c. 56 N. Y. St. Rep. 235; 26 N. Y. Supp. 896. 69 1 Thomp. Neg.J proximate and remote cause. horse of B.j and made him sick by improperly feeding and -watering him, and returned him in this condition to B. B., in the exercise of reasonable care, employed a skillful veterinary surgeon to treat the horse, who treated him according to his best judgment, but was un- able to cure him. In point of fact, the treatment of the surgeon was improper, and contributed to the horse's death. Nevertheless, A. was answerable to B. for the full value of the horse.^^^ § 67. Other Intervening Acts of Person Injured which do not Ke- lieve the Original Wrong-Doer.^ — If a horse, going off a highway by reason of a defect therein, falls upon a fence, and, in being removed therefrom with reasonable care and skill, suffers injury, the town is liable for such injury.^^^ A town negligently leaves a bridge out of repair. A. attempts to drive over it with a horse and buggy. The horse breaks through, but without injury to A. A. springs from the buggy and endeavors to rescue the struggling animal, and, in doing so, is struck by the animal and injured. The negligence of the town is the proximate cause of A.'s injury, and the town must pay damages to A.^^^ If a pedestrian steps into a hole in a sidewalk which the city has negligently left unrepaired, and, stumbling in consequence of such defect, falls upon a railway track and is killed by a passing train, the negligence of the city is the proximate cause of his death, and the city must pay damages ; otherwise if he arose from his fall and after- wards went on the track.^^* § 68. Combined Result of Negligence and Accident.'' — Where an injury is the combined result of the negligence of the defendant, and an accident for which neither the plaintifE nor the defendant is re- sponsible, the defendant must pay damages, unless the injury would have happened if he had not been negligent. ^^° The Indiana Appel- "' Eastman v. Sanborn, 3 Allen v. New Jersey Steamboat Co., 43 (Mass.) 594. Compare Deane v. N. Y. 75; Lords BallifE-Jurats of Keate, 3 Camp. 4. Romney Marsh v. Trinity House, L. a Compare §§ 64, 739, where this R. 5 Exch. 204 (affirmed, L. R. 7 section Is referred to. Exch. 247), 2 Thomp. Neg., 1st ed., "^Tuttle v. Holyoke, 6 Gray 1063; Atchison v. King, 9 Kan. 550; (Mass.) 447. Clark v. Barrlngton, 41 N. H. 52; ""Page V. Bucksport, 64 Me. 51; Kelsey v. Glover, 15 Vt. 708; Lower Stickney v. Maidstone, 30 Vt. 738. Macungle Township v. Merkhoffer, Compare Stevens v. Boxford, 10 71 Pa. St. 276 ; Hey v. Philadelphia, ' Allen (Mass.) 25. 81 Pa. St. 44; Morse v. Richmond, 41 "* Schmidt v. Chicago &c. R. Co., Vt. 435; Seigel v. Eisen, 41 Cal. 109; 83 111. 405, 411. Tucker v. Henniker, 41 N. H. 317; b Compare §§ 13, 93, 1237, where Winship v. Enfield, 42 N. H. 197; this section is referred to. Woodward v. Aborn, 35 Me. 271 ; "» Palmer v. Andover, 2 Cush. Macauley v. New York, 67 N. Y. 602; (Mass.) 600; Titcomb v. Fitchburg Thomas v. Hook, 4 Phila. 119; Hol- R. Co., 12 Allen (Mass.) 254; Austin ley v. Wlnooskl Turnpike Co., 1 Aik. 70 GENERAL DOCTRINES. [2d Ed. late Court, speaking through Xew, J., have stated the rule thus, and supported it by a great citation of authorities: "The true rule is that where two causes combine to produce an injury, such as is here charged and complained of, both of which causes are proximate in their character, the one being the result of culpable negligence, and the other an occurrence as to which neither party is at fault, the neg- ligent party is liable, provided the injury would not have been sus- tained but for such negligence."^^® For example, a road is cut around a precipitous mountain-side, at the foot of which flows a river. The side of the road toward the river is insufficiently guarded. At this point, a bolt in the wagon of a traveller becomes accidentally un- fastened, whereby the fore wheels of his wagon turn suddenly out of the road, and the wagon is precipitated down the embankment, and the traveller injured. The traveller has been guilty of no contribu- tory negligence. The town must pay damages. ^^^ A horse on a ferry boat became frightened by the whistle of a tug boat near by, and threw himself against a defective guard rail, which broke, and the horse fell overboard and was drowned. If the rail had not been de- fective the horse would not have fallen overboard. The owner of the ferry boat is liable for the loss of the horse.^^^ (Vt.) 74; Byrne v. Wilson, 15 I. R. C. L. 332; Hunt v. Pownal, 9 Vt. 411; Powell V. Deveny, 3 Cush. (Mass.) 300; Jollet v. Verley, 35 111. 58; La- con V. Page, 48 111. 499; Aurora v. Pulfer, 56 111. 270; Hull v. Kansas City, 54 Mo. 598; Ward v. North Haven, 43 Conn. 148; Baldwin v. Greenwoods Turnpike Co., 40 Conn. 238. Contra, Wilson v. Susque- hanna Turnpike Co., 21 Barb. 68; Bigelow V. Reed, 51 Me. 325; Proc- tor V. Jennings, 6 Nev. 83. Compare Parker v. Union Woollen Co., 42 Conn. 399; Ouverson v. Grafton, 5 N. D. 281; s. c. 65 N. W. Rep. 676; Pawnee Coal Co. v. Royce, 79 111. App. 469; The Joseph B. Thomas, 81 Fed. Rep. 578; Austin v. New Jersey &c. Co., 43 N. Y. 75; s. c. 3 Am. Rep. 663; Bridges v. North Lon- don R. Co., L. R. 6 Q. B. 377; Grimes v. Louisville &c. R. Co., 3 Ind. App. 573; s. c. 30 N. E. Rep. 200; Norton V. Volzke, 158 111. 402; s. c. 41 N. E Rep. 1085; 49 Am. St. Rep. 167; Washington &c. R. Co. v. Hickey, 166 U. S. 521; s. c. 41 L. ed. 1101; 17 Sup. Ct. Rep. 661. "" Grimes v. Louisville &c. R. Co 3 Ind. App. 573, 576; s. c. 30 N. E. Rep. 200. The Court cite to this statement of doctrine the following cases, which are found, on examina- tion, to support the conclusion of the Court: Board &c. v. Sisson, 2 Ind. App. 311; Ring v. City of Co- hoes, 77 N. Y. 83 ; Ivory v. Deerpark, 116 N. Y. 476; Atlanta v. Wilson, 59 Ga. 544; Wilson v. Atlanta, 60 Ga. 473; Baldwin v. Greenwoods T. P. Co., 40 Conn. 238; Ward v. North Haven, 43 Conn. 148; Hunt v. Pownal, 9 Vt. 411; Kelsey v. Glover, 15 Vt. 708; Winship v. Enfield, 42 N. H. 197; Burrell v. Uncapher, 117 Pa. St. 353; Plymouth v. Garver, 125 Pa. St. 24 ; Bassett v. St. Joseph, 53 Mo. 290; Hull v. Kansas City, 54 Mo. 598; Rockford v. Russell, 9 111. App. 229 ; Manderschid v. Sherwood, 25 Iowa 108; Crawfordsville v. Smith, 79 Ind. 308; White Sewing Machine Co. v. Richter, 2 Ind. App. 331. "'Hunt V. Pownal, 9 Vt. 411. A similar ruling was made on similar facts in Palmer v. Andover, 2 Cush. (Mass.) 600; one of the judges, un- derstood to have been Chief Justice Shaw (see Moulton v. Sanford, 51 Me. 130), dissented. "=Sturgis V. Kountz, 165 Pa. St. 358; s. c. 27 L. R. A. 390; 36 W. N. C. (Pa.) 78; 25 Pitts. L. J. (N. S.) 442; 30 Atl. Rep. 976. 71 1 Thomp. Neg.] proximate and remote cause. § 69. Injury from Several Causes, for All of whicli the Defendant is Responsible. — The question of proximate cause does not arise in an action for personal injuries occasioned by an accident resulting from two or more causes, for all of which the defendant is responsible.^'" § 70. Combined Result of Negligent or Wrongful Act and Ex- traordinary or Unforeseen Cause. — A person who, in the. prosecution of a lawful act, is guilty of negligence which, combining with a sub- sequent circumstance of an extraordinary nature, produces an injury to a third person, — will not be answerable for the damages unless his negligence would have produced the injury had not the extraordinary circumstance supervened. ^^^ The reason is that the law holds him liable for those consequences only which were the natural and prob- able results of his negligence, and which therefore ought to have been foreseen and anticipated. The plaintiff's goods were shipped on a canal boat, and were injured by reason of an extraordinary storm. It appeared that the boat would have passed the point where the acci- dent took place before the flood arose, but for the fact that the de- fendant used a lame horse, in consequence of which the boat did not make the usual time. Here it was held that "the act of God" was the proximate cause of the injury to the plaintiff's goods, and not the negligence of the defendant. The plain reason was that, for aught the defendant could foresee, the delay might have kept the boat out of the flood as well as got it into it.'^^ If the doing of a particular act is forbidden by law, and an agency for which the defendant is not responsible intervenes, and, conjoining with the defendant's unlaw- ful act, but without negligence on his part, produces an injury, he will be responsible.^ ^^ This rule is subject to the limitation pointed out in Clark v. Chambers, '^^^ that the intervening agency must have been one which the first actor was bound to anticipate. § 71. Illustrations of this Principle. — Thus, the servant of A., in violation of a statute,^^* washed a van, in a public street, and allowed "' Kraut V. Frankford &c. R. Co., barge lost. The Court held that the 160 Pa. St. 327, 335 ; s. c. 34 W. N. C. mere fact of delay did not make B. 116; 49 Alb. L. J. 425; 28 Atl. Rep. responsible. The storm was the 783. direct and the delay the remote '™ Allegheny v. Zimmerman, 95 cause of the loss: Daniels v. Bal- Pa. St. 287, 295. lantine, 23 Ohio St. 532. '" Gleeson v. Virginia Midland R. ^ Salisbury v. Herchenroder, 106 Co., 5 Mackey (D. C.) 356; s. c. 5 Mass. 458; s. c. 2 Thomp. Neg. 1st Cent. Rep. 442. B. agreed to tow ed. 1067. See Dickinson v. Boyle, D.'s barge by steam tug to Buffalo 17 Pick. 78; Woodward v. Aborn, 35 from Lake Michigan. After part of Me. 271 ; Weick v. Lander, 75 111. 93. the voyage was completed, B. volun- "^3 Q. B. Div. 327; s. c. 7 Cent tarily suspended it, whereby, when L. J. 11; 17 Alb. L. J. 505. the voyage was resumed, an unusual '=• 2 & 3 Vict., c. 47, § 54. storm was encountered and the 72 GENERAL DOCTRINES. [2d Ed. the waste water to run down the gutter towards a grating leading to the sewer, about twenty-five yards off. In consequence of the ex- treme severity of the weather, the grating was obstructed with ice, and the water flowed over a portion of the causeway, which was ill- paved and uneven, and there froze. There was no evidence that A. knew that the grating was obstructed. The plaintiff's horse, while being led past the spot, slipped upon the ice and broke its leg. It was held that this was a consequence too remote to be attributed to the unlawful act of A.'s servant.'^" In an English criminal case, the prisoner was a maker of fireworhs contrary to a statute ;^^° and dur- ing his absence, and through the negligence of his servants, a fire broke out amongst some combustibles in his possession, which com- municated with the fireworks, and caused a rocket to fly across the street and set fire to a house opposite, in which a person was burned to death. The court held that a conviction of manslaughter could not be sustained on these faets.^^^ A party of slaves assembled at the house of A., at night, to dance and frolic. To allow them thus to assemble on his premises was unlawful, and exposed A. to a penalty of $3 for each slave so assembling. In the course of the night, a patrol goes to arrest the slaves, and, while they are attempting to escape, fires a loaded pistol into a dark room and kills the slave of B. A. is not liable to B. for the value of the slave. The unlawful act of A. in permitting the slaves to assemble was but a remote cause of the damages.^'^' § 72. Combined Result of Act of Defendant and "Act of God."— . On the same principle, where the injury complained of is the com- bined result of the prior act of the defendant and what is technically termed "the act of God," the defendant will not be liable, but the act of God will be deemed the eiiicient cause of the calamity.^^^ It is sometimes said that where the catastrophe was the combined result of the negligence of the defendant and the subsequent act of God, there can be no recovery. But the better conception is that, in such a case, there is no negligence, in a theoretical sense, considered with refer- ence to the accident. Thus, a railroad company constructs a culvert of sufficient dimensions to carry off all water that accumulates in times of ordinary freshets, but which proves insufficient in a time of '=» Sharp V. Powell, L. R. 7 C. P. •^Bosworth v. Brand, 1 Dana 253; 41 L. J. (C. P.) 95; 20 Week. (Ky.) 377. Rep. 585; 26 L. T. (N. S.) 436. '"^ Central Trust Co. v. Wabash "" 9 & 10 Wm. III., c. 7, § 1. &c. R. Co., 57 Fed. Rep. 441 (able ■"Regina v. Bennett, 4 Jur. (N. discussion by Baker, J.) ; Baltimore S.) 1088; 28 L. J. (Mag. Cas.) 27; &c. R. Co. v. School District, 96 Pa. Bell's C. C. 1. St. 65 ; Rodgers v. Central Pacific R. Co., 67 Cal. 607. 73 1 Tliomp. Neg.J proximate and remote cause. flood, so great as to be ascribed to the act of God, — a flood so great that the company could not be expected to foresee and provide against it. Here the company ought not to be liable to pay damages; and one may take his choice between these two reasons: 1. The catastro- phe is to be ascribed to the act of God, and not to the act of the rail- road company: the former, and not the latter, is the proximate cause of the damage. 2. The railroad company has not been negligent.^'" The rule under this head can well be said to be that "when the act of God is the cause of a loss, it is not enough to show that the defendant has been guilty of negligence: the case must go further and show that such negligence was an active agent in bringing about the loss, without which agency the loss would not have occurred."^^^ § 73. Negligence of the Defendant Concurring with the Act of God. — As we shall soon see, if the negligence of two or more persons combines to bring about an injury, either of such persons will be liable for the damages, provided that, but for hia negligence, the in- jury would not have happened.^ ^° Upon the same principle, if the negligence of the defendant concurs with the act of God, or with any other vis major, in producing a catastrophe, the defendant will be liable, provided he might have foreseen the catastrophe and provided against it, notwithstanding the vis major, by the exercise of that de- gree of care which the law places upon him, under the circumstances of the case.^^^ Thus, if, in time of war, a railway conductor knows that, on a particular day, the railroad is liable to be attacked by hos- tile forces, and yet, loads on board the plaintiff's goods, and, by rea- son of the train being so attacked, they are lost, the railroad company may be liable in damages.^^* Applying this doctrine to the case of the loss of goods by a common carrier, the fact of the loss makes out a prima facie, case of negligence by the carrier, which casts the bur- den on him to excuse himself from liability; and in order to do this he must make out a case in which no negligence of his ovm appears. This done, the carrier stands excused, unless the plaintiff provides evidence showing, or unless it otherwise appears from evidence in the ""See, as illustrating this, the more &c. R. Co., 45 N. Y. 712; Pruitt learned opinion of Baker, J., in Cen- v. Hannibal &c. R. Co., 62 Mo. 527, tral Trust Co. v. Wabash &c. R. Co., 542. See also Wolf v. American Ex- 57 Fed. Rep. 441; also Coleman v. press Co., 43 Mo. 421; Reed v. St. Kansas City &c. R. Co., 36 Mo. App. Louis &c. R. Co., 60 Mo. 199. Com- 476. pare Morrison v. Dam, 20 Pa. St. "'Coleman v. Kansas City &c. R. 171; Denny v. New York Central R. Co., 36 Mo. App. 476, 491. Co., 13 Gray (Mass.) 481; Railroad ^^'Post. § 75. Co. V. Reeves, 10 Wall (U. S.) 176. "' Michaels v. New York Central '" Reasoning of Holmes, J., in R. Co., 30 N. Y. 564; Read v. Spald- Clark v. Pacific R. Co., 39 Mo. 184, ing, 30 N. Y. 630; Bostwick v. Haiti- 191. 74 GENERAL DOCTRINES, [2d Ed. case, that the negligence of the carrier either produced the loss or cooperated with the act of God in producing it."' The Supreme Court of Pennsylvania say: "We apprehend that the concurring negligence which, when combined with the act of God, produces the injury, must be such as is in itself a real producing cause cf the in- jury, and not a merely fanciful or speculative, or microscopic negli- gence, which may not have been in the least degree the cause of the injury. In other words, if the act of God in this particular case was of such an overwhelming and destructive character as, by its own force, and independently of the particular negligence alleged or shown, produced the injury, there would be no liability, though there were some negligence in the maintenance of the particular structure. To create a liability, it must have required the combined effect of the act of God and the concurring negligence to produce the injury." This reasoning was applied to a case where a railway culvert proved insufficient to carry off the water that accumulated during an ex- traordinary flood. '^''' § 74. Prior Negligence of Defendant and Subsequent Act of God. — The decisions just stated, in so far as they may be in conflict with each other,^^' and indeed most of the other decisions on this subject which seem to be conflicting, — can be usually reconciled by consider- ing whether the act of the defendant, upon which negligence produc- ing the injury is predicated, preceded the so-called act of God, or was contemporaneous with it, or followed it: the test in every such case being whether the defendant ought reasonably to have anticipated that evil consequences would flow from his act.^^' In one such case, goods which were being transported on a canal were injured by the wrecking of a boat, caused by an extraordinary flood. It appeared that the boat had been delayed by the fact of the defendant using a lame horse to tow it, and that if it had been towed by a sound horse, it would have passed the place where the accident occurred in time to •"'Davis V. Wabash &c. R. Co., 83 held error to instruct the jury that Mo. 340; Wolf v. American Express "if, in addition to the act of God, Co.. 43. Mo. 421; Read v. St. Louis so-called, the intervention of man &c. R. Co., 60 M'o. 199, 206. So takes place, cooperating with it and where, by contract, the common car- commingling with it to any extent, rier is exempt from liability in case however slight and an injury then of loss arising from a specific cause: results, the injury is to be ascribed Railroad Co. v. Reeves, 10 Wall (U. not to the act of God — which would S.) 176; Lamb V. Camden &c. R. Co., constitute no defense in the case 46 N. Y. 271; reversing s. c. 2 Daly supposed — but to the act of man." (N. Y.T 454; Cochran v. Dinsmore, Rodgers v. Central Pacific R. Co.. 49 N. Y. 249. 67 Cal. 607. '^ Baltimore &c. R. Co. v. School '" Ante, §§ 70, 71, 72, 73. District, 96 Pa. St. 65. It has been '^^ Ante, §§ 50, 58, 59. 75 1 Thomp. Neg.] proximate and remote cause. have avoided the injury. The court held that the flood, and not the act of using a lame horse, was the proximate cause of the injury.^'® And there was good sense in this, since the time when the flood would come, if at all, could not be foreseen, and the delay of the boat caused by the lameness of the horse might as well have saved the cargo from the loss as have produced it. In another such case, a railroad com- pany was guilty of a negligent delay of six days in transporting wool from Suspension Bridge to Albany, and while in the depot of the company at the latter place, a few days after, it was submerged by a sudden and violent flood in the Hudson river. If the wool had been transported promptly it would have escaped the flood. The flood, and not the negligence of the company, was the proximate cause of the loss, and for the same reason; and the company was not liable.^*" A policy of marine insurance exempted the underwriter from liability to pay damages to the vessel, caused by want of ordinary care and skill in navigation. Through such want of ordinary care and skill, the vessel stranded. After the vessel stranded, a" storm arose, which made it necessary to scuttle her, in order to save the vessel and the cargo. It was held that the storm — that is to say, the- act of God — and not the negligence in navigation, was the proximate cause of the loss, and that the insurance company was liable."^ § 75. Concurrent Negligence of Two Persons Injuring a Third.* — If the concurrent or successive negligence of two persons, combined together, results in an injury to a third person, he may recover dam- ages of either or both, and neither can interpose the defense- that the prior or concurrent negligence of the other contributed to the in- jury.^*^ Thus, A. leaves his horse and cart standing in the street, 1™ Morrison v. Davis, 20 Pa. St. R. Co., 41 Fed. Rep. 643; s. c. 19 171. Ins. L. J. 379, 695; 43 Am. & Eng. 1" Denny v. New York Central R. Rail. Cas. 79; Schmidt v. Steinway Cc, 13 Gray (Mass.) 481. On simi- &c. R. Co., 55 Hun (N. Y.) 496; 29 lar facts, with the same conclusion, N. Y. St. Rep. 201; 8 N. Y. Supp. see Railroad Co. v. Reeves, 10 Wall 664; 9 N. Y. Supp. 939; Galveston (U. S.) 176. &c. R. Co. V. Crosskell, 6 Tex. Civ. "' Northwest Transp. Co. V. Boston App. 160; s. c. 25 S. W. Rep. 486; Marine Ins. Co., 41 Fed. Rep. 793; Johnson v. Northwestern Teleph. rev'g s. c. 37 Fed. Rep. 220. But &c. Co., 48 Minn. 433; s. c. 51N. W. this seems an unsound view, since Rep. 225; Burrows v. March Gas & the necessity of scuttling the boat Coke Co., L. R. 5 Exch. 67; s. c. L. was brought about by the perilous R. 7 Bxch. 96; 2 Thomp. Neg. 1st position in which she was placed ed. 1070; Baton v. Boston &c. R. Co., through the negligence In navigat- 11 Allen (Mass.) 500; Illidge v. ing her; and the conclusion of the Goodwin, 5 Car. & P. 190; Lynch v. District Judge, whose decision was Nurdin, 1 Q. B. 29; Lockhart v. reversed, is preferable. Lichtenthaler, 46 Pa. St 151; Mc- a Compare §§ 73, 499, 505, 512, 738, Cahill v. Kipp, 2 E. D. Smith (N. 739, where this section is referred to. Y.) 413; Peck v. Neil, 3 McLean 26; "' Marine Ins. Co. v. St. Louis &c. Smith v. Dobson, 3 Scott's N. R. 76 GENERAL DOCTRINES. [2d Ed. without any person to watch them, and a passer-by strikes the horse, in consequence of which damage ensues. A. is answerable for such damage.^ ^* An omnibus overturns, precipitating a passenger into the lock of a canal. A third person, for whose acts the proprietor of the omnibus is not responsible, lets the water into the canal, in con- sequence of which the passenger is drowned. The proprietor of the omnibus must pay damages for the death of the passenger.^** This is also illustrated by that numerous class of cases where travellers are injured by reason of defects in highways. As elsewhere seen, the traveller may maintain an action either against a municipal corpora- tion, or against the private wrong-doer who caused the defect ;^*° and the municipal corporation, if compelled to pay damages, may main- tain an action against the private wrong-doer for reimbursement. ^*° Consequently, a defendant, whose negligence was a procuring cause of an injury, can not excuse his negligence by setting up the concur- ring negligence of a third person.^*^ For example, where A. negli- gently placed on a sidewalk an iron post, used as a barber's pole, and B. negligently backed his wagon against it, whereby it was knocked over, striking C, and injuring him, it was held that the negligence of A. did not prevent C. from recovering damages of B.^** So, if through the negligence of a railway company, the employe of another com- pany receives an injury, the fact that the negligence of other em- ployes of the latter company, who were fellow-servants with the in- jured employe, also contributed to the injury, does not relieve the former company from liability.^^" 336; Congreve v. Morgan, 18 N. Y. 185; s. c. 39 N. E. Rep. 908; Gardner 84; Irvin v. Fowler, 5 Robt. (N. Y.) v. Friedrich, 25 App. Div. 521; s. c. 482; Ricker v. Freeman, 50 N. H. 49 N. Y. Supp. 1077. 420; Wheeler v. Worcester, 10 Allen '"Illldge v. Goodwin, 5 Car. & P 591; Chapman v. New Haven &c. 190. R. Co., 19 N. Y. 341; Colgrove v. ^" Byrne v. Wilson, 15 I. R. C. L. New Haven &c. R. Co., 20 N. Y. 492; 332. Barrett v. Third Avenue R. Co., 45 ^'^ Post, § 1223. N. Y. 628; McMahon v. Davidson, '"Post, § 1242. 12 Minn. 357; Griggs v. Flecken- "' Jacksonville &c. R. Co. v. Penin- stein, 14 Minn. 81, 93; Philadelphia sular Land &c. Co., 27 Fla. 167; s. V. Weller, 4 Brews. 24 ; Carpenter v. c. 9 South. Rep. 661 ; Quill v. New Central Park &c. R. Co., 11 App. Pr. York &c. R. Co., 32 N. Y. St. Rep. (N. Y.) (N. S.) 416; Meade v. Chi- 612; s. c. 11 N. Y. Supp. 80; affirmed cago &c. R. Co., 68 Mo. App. 92; in 126 N. Y. 629, mem.; Louisville Moulder v. Cleveland &c. R. Co., 1 &c. R. Co. v. Lucas, 119 Ind. 583; OhioN. P. 361; s. c. 2 Ohio Leg. News s. c. 6 Rail. & Corp. L. J. 256; 21 540; Eads v. Marshall (Tex. Civ. N. E. Rep. 968. App.), 29 S. W. Rep. 170 (no off. "» L. Wolff Man. Co. v. Wilson, 152 rep.); City Electric Street R. Co. v. 111. 9; s. c. 38 N. E. Rep. 694; 26 L. Conery, 61 Ark. 381; s. c. 31 L. R. A. R. A. 229. 570; 3 Am. & Bng. R. Cas. (N. S.) ""Chicago &c. R. Co. v. Sutton, 63 365; 33 S. W. Rep. 426; South Bend Fed. Rep. 394; s. c. 11 C. C. A. 251. Man. Co. v. Liphart, 12 Ind. App. 77- 1 Thomp. Neg.] pkoximate and remote cause. § 76. Bule where it is Impossible to Apportion the Damage Be- tween the Wrong-doers. — This rule obtains, although it is impossible to determine in what proportion each of the wrong-doers contributed to the injury ; although the act alone of the party sued might have caused the entire injury; and although, if his acts had not concurred in pro- ducing the wrong, the same damages would have resulted from the act of the other.^^" Thus, two independent contractors were negligent in performing their respective portions of the work, so that an accu- mulation of water entered the plaintiff's cellar, damaging his goods. It could not be ascertained how much of the water was caused to flow by the negligence of each contractor. One of them was sued, and was held liable for the whole damage.^^^ In the view of the court, the case was not like the case where animals belonging to several own- ers do damage together, where it is held that each owner is not liable for the aggregate trespass of all, but that there is a separate trespass on the part of each.^^^ In seeming opposition to this rule, another court has declared, proceeding under the statute,^^^ but reasoning on general grounds, that where the damage sustained did not wholly re- sult from the acts of the defendant, but resulted in part from the act of a third person, who does not appear to have had any connection with the defendant, a recovery against the defendant of the whole damage can not be sustained.^^* For example, a railroad company tears down the fence of a farmer. A neighbor's hogs get in and do damage. Under this rule it was held error to admit evidence that the hogs got in and did the damage, because this damage was a remote and not a direct result of the trespass of the defendant,^ ^° — a very doubtful decision. So, where a defendant placed obstructions in a street, which, together with obstructions there placed by other per- sons not appearing to have any connection with the defendant, caus- ing the water to invade the premises of the plaintifE, causing dam- age, — it was held that the plaintiff could not recover the whole dam- ages from the defendant.^^^ This rule leads to this grossly unjust result, that where two wrong-doers, not acting in concert, inflict a wrong on a person, each contributing to some of the damages, but under such circumstances that the damages can not be apportioned between them, the injured person can not recover any damages of ""Slater v. Mersereau, 64 N. Y. '""'Cal. Civ. Code, § 3333. 138. ^" Durgin v. Neal, 82 Cal. 595; s. c. '•=" IMd. Compare Brown v. lUius, 23 Pac. Rep. 133 ; Berry v. San Pran- 27 Conn. 84, 91; s. c. 25 Conn. 583. Cisco &c. R. Co., 50 Cal. 435. "' See Van Steenburgh v. Tobias, '"' Berry v. San Francisco &c. R. 17 Wend. (N. Y.) 562; Auchmuty v. Co., 50 Cal. 435. Ham, 1 Denio (N. Y.) 495; Parten- "» Durgin v. Neal, 82 Cal. 595. lieimer v. Van Order, 20 Barb. (N. Y.) 479. 78 GENERAL DOCTRINES. [2d Ed. either. Whereas, by analogy to the doctrine of confusion of goods, he ought to be allowed to recover his full damages from either, unless the one against whom his action is brought can show that a definite proportion of them was produced by the other wrong-doer; and the burden of showing this ought to be upon him. Under the California rule, it is easy for a person to commit a wrong and escape civil lia- bility for it, by procuring some one else to do a wrong which en- hances the damage done to the injured person, while avoiding the ap- pearance of acting in concert. § 77. Exception to This Principle Involved in the Doctrine of Im- puted Negligence. — An exception to this rule formerly existed in England, and in some American courts, in cases where the relation of the person injured to one of the parties doing the injury is such that they are deemed to be identified,m a juridical sense, with each other, — as, where the goods of A., on board the vessel of B., A.-'s carrier, are lost by reason of a collision between the vessel of B. and the vessel of C, the pilots, of both vessels being negligent ; or, where A., a passen- ger on board B.'s train of cars, is injured by B.'s train coming in con- tact with the train of C, the servants of both companies being negli- gent. Here A. may recover damages of B.,^°' but not of C.^^^ But, as we shall hereafter see,^°' this doctrine of imputed negligence has been generally discredited, both in England and America, — though in two or three jurisdictions it is still kept up so as to deny to children the protection which the law accords to adult per sons. ^^'^ Thus, un- der the now prevailing doctrine, a passenger is riding on a street car. AVhile so riding, the car, through the negligence of its driver, and also the negligence of the man in charge of a separate "railway train, comes into collision with the train, killing the passenger. Under the now prevailing doctrine his legal representative may recover damages for his death from the railroad company, notwithstanding the negli- gence of the driver of the street car, provided the accident would not have occurred but for the negligence of the servant of the railway company.^ *^ § 78. Other Exceptions. — Nor does this doctrine apply in case of actions for damages, under the statutes of Massachusetts, for injuries "' Lockhart v. Lichtenthaler, 46 '=' Post, § 500, et seq. Pa. St. 151; Peck v. Neil, 3 McLean ^'^ Post, § 289, et seq. 26. ^''Little Rock &c. R. Co. v. Har- "» Vanderplank v. Miller, 1 Moo. rell, 58 Ark. 454; s. c. 25 S. W. Rep. & M. 169; Bridge v. Grand Junction 117; denying Thorogood v. Bryan, &c. R. Co., 3 Moe. & W. 244; Thoro- 8 C. B. 115. good V. Bryan, 8 C. B. 115. 79 1 Thomp. Neg.] proximate and remote cause. sustained by travellers in consequence of negligence of towns in suf- fering their highways to get out of repair.^ °^ Moreover, in applying this rule, care should be taken to distinguish cases which do not clearly fall within it. Thus, in building a house, one workman, a plasterer, caused a certain aperture to be made, for convenience of passage, and afterwards went away before his work was finished, with the intention of returning at a future period to complete it ; and, both while he was there and during the time he was absent, — two or three weeks, — other workmen employed about the premises made use of the ■ passage; and during the time he was so absent, the passage not hav- ing been secured at night, a man fell through and was injured. It was held by the House of Lords (reversing a decision of the Scotch Court of Session) that such plasterer was not the person to respond in damages for this misfortune. ^"^ § 79. No Contribntion between Parties whose Concurrent Negli- gence Injures a Third Person. — We have seen that if. two persons are guilty of concurring negligence which results in an injury to a third person, and if the negligence of both of the parties is a proximate cause of the injury, he may sue either or both, separately, or he may sue both jointly, and recover for the injury. In such a case, it has been held that the doctrine, that one of two joint tort-feasors, against whom a judgment has been recovered for the tort, can not, upon sat- isfying the judgment, maintain an action against the other tort-feasor for a contribution, applies.^"* Thus, it has been held that, a passen- ger on a street car having been injured by the collision thereof with a railroad car through the joint negligence of the street railroad com- pany and the steam railroad company, neither company can recover against the other any portion of the amount such passenger may re- cover from it.^^^ But this rule is not universal. We shall see that a municipal corporation, against which a judgment is recovered for damages to a traveller, sustained in consequence of a nuisance in its streets, may recover damages over against the author of the nui- sance.^'® § 80. Accidental Injury in Escaping from Apparent Sudden Peril Produced by Negligence of Another.^^ — If A., through his negligence or fault, puts B. in a position of immediate danger, real or appar- "^ Shepherd v. Chelsea, 4 Allen '== Texas &c. R. Co. v. Doherty, 4 (Mass.) 113. Tex. App. 231; s. c. 15 S. W. ™ Milne v. Smith, 2 Dow. H. L. Rep. 44. Cas. 390. '»= Post. § 1205. "* Texas &c. R. Co. v. Doherty, 4 a Compare §§ 164, 171, 197, 255 Tex. App. 231; s. c. 15 S. W. Rep. 44. where this section is referred to. 80 GENERAL DOCTRINES. [2d Ed. ent/°^ and B., through a sudden impulse of fear, makes a movement to escape the danger, and, in so doing, accidentally receives another and different injury from that threatened by the negligence of A., he may recover damages of A. ; for A.^s negligence or fault is the prox- imate cause of his injury.^ °' The rule is the same where the defend- ant has so acted as to induce the plaintiff, acting with reasonable care or diligence, to incur the danger.^''^ One court has well reasoned that the negligence of plaintiff which will defeat his recovery must be a proximate cause of the injury, and the act must be one which he could reasonably anticipate would result in his injury. Therefore, if the defendant, by his own act, threw the plaintiff off his guard, the lack of vigilance is not imputable to him as negligence.^'"* § 81. Illustrations of This Principle.^ — Illustrations of this princi- ple arise most frequently in cases where passengers are injured in leaping from the carrier's vehicle in time of an accident, when, if they had remained on the vehicle, they would not have received any injury; but illustrations also arise in other situations as well. In a leading case on this doctrine a coach suddenly breaks down, going at a moderate gait on a level road. A passenger seated upon the top, becoming alarmed, leaps to the ground, and thereby sustains an in- 1. Ingalls V. Bills, 9 Mete. (Mass.) ^"Post, §§ 192, 197; Coulter v. American Merchants' Union Express Co., 56 N. Y. 585; 5 Lans. 67; Ingalls V. Bills, 9 Mete. (Mass.) 1; Lund v. Tyngsboro, 11 Cush. 563; Pittsburgh V. Grier, 22 Pa. St. 54; Sears v. Den- nis, 105 Mass. 310; Card v. Ells- worth, 65 Me. 547; Crampton v. Ivie, 124 N. C. 591; s. c. 32 S. E. Rep. 968; Vallo v. United States Exp. Co., 147 Pa. St. 404; s. c. 14 L. R. A. 743; 23 Atl. Rep. 594; Lincoln Rapid Transit Co. v. Nichols, 37 Neb. 332;' s. c. 20 L. R. A. 853; 55 N. W. Rep. 872; Louisville &c. R. Co. v. Palvey, 104 Ind. 430; s. c. 2 West. Rep. 687. Compare Wilson v. Susquehanna Turnpike Co., where, on the facts, the court refused to apply the rule. Where a horse went over a bank from a highway In consequence of a want of a railing, and, coming upon ice in a field below, under the impulse of fear, caused by the fall, slipped, fell, and was injured, the town was liable for the injury. Stevens v. Boxford, 10 Allen (Mass.) 25. Compare Page v Bucksport, 64 Me. 51; Stickney v. VOL. 1 THOMP. NEG. — 6 Maidstone, 30 Vt. 738. It is upon like ground that the criminal law excuses homicide when committed under a supposed necessity of self- defense, in the presence of words and demonstrations whidh threaten death or great bodily harm although in fact no harm is intended. Wilt- berger's Case, 3 Wash. C. Ct. 515; Shorter v. The People, 2 N. Y. 193; Logue V. The Commonwealth, 38 Pa. St. 265; Campbell v. The People, 16 111. 17; Schnier v. The People, 23 111. 17; Merideth v. The Common- wealth, 18 B. Mon. (Ky.) 49; The People V. Sullivan, 7 N. Y. 396; The State V. Neeley, 20 Iowa, 108; Fors- ter's Case, 1 Lew. C. C. 187; The Commonwealth v. Drum, 58 Pa. St. 9; The Commonwealth v. Self ridge, Hor. & Thomp. Cas. on Self-Defense, 1. The other cases here quoted are likewise to be found in the collec- tion of cases last named. ""Harris v. Clinton, 64 Mich. 447; s. c. 7 West. Rep. 666. ""Fowler v. Baltimore &c. R. Co.. 18 W. Va. 579. a Compare §§ 164, 171, 197, 255, where this section Is referred to. 81 1 Thomp. Neg.J proximate and remote cause. jury. If he had remained seated, he would not have been injured. The breaking of the coach is the proximate cause of the injury, and if this happened through the negligence of the proprietor, he must pay damages; otherwise not."^ A fortiori, if the negligence of B. compels A. to adopt a particular course, which he would not have tidopted but for such negligence, and, in so acting with ordinary pru- dence, A. is injured, he may recover damages of B."^ To illustrate: A traveller, whose horse takes fright at a defect in the highway, leaps from the wagon to avoid injury, and in so doing receives an injury. The defect in the highway is deemed the proximate cause of this in- jury, and the town is liable for the damages.^'^ This doctrine is fre- quently applied where, by reason of the negligence of the town, or other municipal corporation charged with the reparation of the high- way, an obstruction exists therein, in order to avoid which a traveller deviates from the travelled part of the way, and, while so off the same, is, without negligence on his part, injured. Here, although there is a conflict of authority, the better opinion is that the town must pay damages.^'* But if the traveller is compelled to turn ojf the highway itself, by reason of a defect therein rendering it impassa- ble, and while so ofE the highway, and attempting with due care to pass the obstacle, receives an injury, he can not recover damages of the town, although he could have done so if the injury had happened to him while on the highway; for the negligence of the town is to be deemed a remote cause of the injury.^'^ It was so held when the traveller, going off the highway to shun an obstruction not otherwise passable, foundered in a pond;^^° and where, a bridge having been washed away and not rebuilt, he attempted to cross at a ford, not in the dedicated highway, the river being swollen.^^' On this principle it has been held that neglect in setting off a blast is the proximate cause of injury to the owner of a team who, upon his horses becoming frightened, voluntarily places himself in a position of danger in the hope of saving the team from injury and preventing probable injury to the life of others, and not his act in placing himself in such posi- tion.^^* So, the negligent throwing of a trunk from an express de- livery wagon in a highway, which so suddenly puts a passer-by in "' Ingalls V. Bills, 9 Mete. (Mass.) ™ Tisdale v. Norton, 8 Mete. 1. (Mass.) 388; Hyde v. Jamaiea, 27 "= Stone v. Hubbardston, 100 Vt. 458. Mass. 49. "° Tisdale v. Norton, 8 Mete. ""Card V. Ellsworth, 65 Me. 547. (Mass.) 388. Aliter if the traveller jumped from "'Hyde v. Jamaica, 27 Vt. 443, the wagon for the purpose of taking 458. hold of the horse and leading him ™ Connell v. Prescott, 20 Ont. App. around the obstacle. IMd. 49. "* See Volume IV. 82 GENERAL DOCTRINES. [2d Ed. peril that he falls over another small trunk lying on the sidewalk and is injured, is the proximate cause of his injury.^^' § 82. Collateral Unlawful Act does not Bar a Recovery.*^ — The mere fact that the plaintiff, on the one hand, or the defendant on the other, was engaged in violating the law in a given particular at the time of the happening of the accident, will not bar the right of action of the former, nor make the latter liable to pay damages, unless such violation of law was an efficient cause of the injury.^*" Accordingly, if A. has sustained an injury through the negligence of B., he may re- cover damages of B., although he was at the time trespassing upon "' Vallo V. United States Exp. Co., 147 Pa. St. 404; s. c. 14 L. R. A. 743; 1 Pa. Adv. R. 260; 23 Atl. Rep. 594. It has been held that a master is not liable for an injury to a third per- son from the act of his servant in instinctively throwing from him a blazing lamp by which he was being burned, in the absence of any other ground of negligence, than such act on the servant's part: Donahue v. Kelly, 181 Pa. St. 93; s. c. 40 W. N C. 203; 37 Atl. Rep. 186. But this was not for the reason that the rule of respondeat superior would not have been applicable, but for the reason that negligence could not be predicated upon the act done by the servant. The doctrine, that persons suddenly placed in positions of peril and impending danger can not be held liable for acts which otherwise would be negligence, is illustrated by the case of Brown v. French, 104 Pa. St. 604. In that case plaintiff's husband attempted to cross the Ohio river in a skiff at a dangerous place and lost the control of his boat, which fouled a barge in tow of a steamer. He was drowned while efforts were being made to save him by the crew of the steamer. It was alleged that his death was caused by negligence in making such efforts. The court held that an un- expected accident, and one for which they were wholly unprepared, was sprung upon those in charge of the steamer and that under such cir- cumstances, a mistake in judgment was not an act of carelessness. So, in what is commonly known as "the Squib Case," Scott v. Shepherd, 3 Wils. 103; s. c. 2 W. Black. 892; 1 Sm. Lead. Cas. 9th ed. 737,thejudges all agreed that the intermediate throwers of the squib between the first thrower and the plaintiff were not liable for injury to the plaintiff for the reason that they acted in self-defense. In a case where plaint- iff's and defendant's dogs were fighting (Brown v. Kendall, 6 Cush. (Mass.) 292), the defendant was beating them to separate them. As he raised the stick over his shoulder to strike them, he struck plaintiff, who was looking on, in the eye, inflicting severe injury. It was held that defendant was acting law- fully, and that his striking plaintiff was the result of a pure accident or was involuntary or unavoidable, and no action would lie therefor. a Compare §§ 102, 1325, where this section is referred to. ^"Counter v. Couch, 8 Allen (Mass.) 436; Kidder v. Dunstable, 11 Gray 342; Morrison v. General Steam Nav. Co., 8 Exch. 731; Bige- low V. Reed, 51 Me. 325; Damon v. Scituate, 119 Mass. 66; Jennings v. Wayne, 63 Me. 468; Kepperly v. Ramsden, 83 111. 354 ; Chicago &c. R. Co. v. McKean, 40 111. 218; St. Louis &c. R. Co. V. Manly, 58 111. 300; Steele v. Burkhardt, 104 Mass. 59; Kearns v. Snowden, 104 Mass. 63; Spofford v. Harlow, 3 Allen (Mass.) 176; Wrinn v. Jones, 112 Mass. 360; Smith V. Conway, 121 Mass. 216; Gale V. Lisbon, 52 N. H. 174 ; Norris V. Litchfield, 35 N. H. 271; Schmid V. Humphrey, 12 West. Jur. 475; Carroll v. Staten Island R. Co., 58 N. Y. 126; Woodman v. Hubbard, 25 N. H. 67; Morton v. Gloster, 46 Me. 520; Hall v. Corcoran, 107 Mass. 251; Mohney v. Cook, 26 Pa. St. 342; Sutton V. Wauwatosa, 29 Wis. 21; Phila. &c. R. Co. v. Phila. &c. Tow- boat Co., 23 How. (U. S.) 209. Con- tra, Pfau V. Reynolds, 53 111. 212. 83 1 Thomp. Neg.J proximate and remote cause. the rights of C, or otherwise performing an unlawful act.^'^ So, a traveller on a stage-coach is injured by an accident which happens to the coach. The mere fact that at the time of the accident the coach was being driven on the wrong side of the road, does not make its owner liable.^*^ So, the fact that one sustaining an injury by the negligent act of another may have been, at the time of such injury, acting in the disobedience of the Sunday laws of the State, will not prevent recovery from one whose negligent act was the proximate cause of such injury.^*^ § 83. Tlnlawful Act Directly Contributing to the Accident Bars Recovery. — But an unlawful act of a person which directly contrib- utes to a hurt or damage sustained by him, is a conclusive bar to a re- covery for such hurt or damage from another on the ground of the negligence of that other.^** In other words, if the unlawful act of the plaintis5 concurred with the negligence of the defendant in pro- ducing the injury, then, upon familiar grounds, more fully examined in the next chapter, he can not recover.^*'* Thus, A., in driving over a bridge at a rate of speed faster than a walk, in violation of a city ordinance, receives an injury by reason of a defect in the bridge. A. can not recover damages of the city.^'* So, if A., without authority of law, connects his drain with a public sewer, and water from the sewer backs up and floods his cellar, the city is not liable for the dam- ages, because A.'s unlawful act, and not the negligence of the city, is the proximate cause of the injury.^ *^ § 84. Rule where One of Two Innocent Persons must Suffer from the Fraud or Fault of a Third Person. — The rule, already referred to,^^® that where one of two innocent persons, that is, persons who have acted in good faith, must suffer a loss through the fraud of a third, the loss must rather fall on the person whose negligence enabled the third person to commit the fraud, is well established,^**^ though isijjorris v. Litchfield, 35 N. H. Merrimac Bridge Corp., 7 Gray 271. (Mass.) 457; Heland v. Lowell, 3 "= Aston V. Heaven, 2 Bsp. 533. Allen (Mass.) 407. '"^ Louisville &c. R. Co. v. Prawley, ^^ Heland v. Lowell, 3 Allen 110 Ind. 18; s. c. 7 West. Hep. 44. (Mass.) 407. This application of Compare post, §§ 249, 1326. the rule is not, however, supported '"Broschart v. Tuttle, 59 Conn. 1; by legal analogy unless the circum- s. c. 11 L. R. A. 33; 21 Atl. Rep. 925 stances were such that the plaintiff — where it was held that the plaint- would have received the injury if iff's Illegal act did not contribute to he had driven at a walk, his injury, and was not, therefore, a "' Darling v. Bangor, 68 Me. 108. bar to his recovery. ^"^ Ante, §§ 34, 35. '* Bosworth V. Swansey, 10 Mete. ^a. Cole v. Butler, 24 Mo. App. 76. (Mass.) 363; Worcester v. Essex 84 GENERAL DOCTRINES. [2d Ed. eparingly applied.^ *° It does not extend so far as to make one liable as a copartner, on the ground that his name was held out as such, un- less this was done with his consent or knowledge, in which latter case he would be estopped in favor of an innocent stranger who had acted to his loss on the belief in a state of facts which the former had suf- fered to be held out.^"" The rule is generally applied in cases where the maker of negotiable paper issues the paper in such form, and by leaving blanks or otherwise, that it can be easily altered, and it is altered by some one into whose hands it falls, whereby he has been enabled to defraud an innocent taker, in 'which ease the loss has been put upon the maker, and not upon the innocent taker ;^®^ though this application of the rule is by no means well settled. The rule, in this application, involves, it is perceived, the doctrine that the law looks to the proximate and not to the remote consequences of acts. A man in executing negotiable paper, is not obliged to foresee and guard against a concatenation of remote dangers, — such as (1) that there may be other persons in the same city as his customer of the same name; (2) that the Post Office agents may deliver the instrument to some such person; (3) that such person will commit a forgery by en- dorsing his name upon it, if that is a forgery; and (4) that the forger will be able to convince some bank that he is the real owner of the in- strument and sell it to them. To hold otherwise would be to make men responsible for those acts of omission which are contrary to ordi- nary experience and which ordinary care would not anticipated'^ Where a written obligation is fraudulently "raised," although by an agent of the maker, and although the maker may have been negligent in signing the instrument in such a condition as to facilitate the suc- cessful perpetration of the fraudulent alteration, — ^the forgery, and not the negligence, will be deemed the proximate cause of the damage thereby inflicted upon a third person.^'* § 85. Defendant's Negligence Frozimate, Plaintiflf's Negligence Remote.^ — We come now to a branch of the doctrine of proximate and remote cause, which will be more fully treated under the head of contributory negligence. To the rule that where the negligence of the plaiatiff, or of the person injured, as the case may be, contributes in any substantial degree to bring about the danger for which the ''"Hatton V. Holmes, 97 Cal. 208; "^ Bank of Commerce v. Ginocchio, s. e. 31 Pac. Rep. 1131; Bank of Com- 27 Mo. App. 661. merce v. Ginocchio, 27 Mo. App. 661. "'Walsh v. Hunt, 120 Cal. 46; s. c. >" Cole V. Butler, 24 Mo. App. 76. 52 Pac. Rep. 115; 39 L. R. A. 697. ■"Brown v. Reed, 79 Pa. St. 370; a Compare §§ 204, 219, 220, 222, Young V. Grote, 4 Bing. 253. 344, where this section is referred to. 85 1 Thomp. Neg.] proximate and kemote cause. action is brought, there can be no recovery, 'there is this exception, originating in the leading case of Davies v. Mann-^^* the plaintiff's negligence is not a bar to a recovery, if it be only a remote condition, and that of the defendant the causa causans.^^^ § 86. Cases Illustrating this Principle.^ — This principle is gener- ally applied where a person, through negligence, exposes himself or his property (and in some jurisdictions his cMld)^°^ to danger; and, so exposed, the one or the other is injured by the subsequent negli- gence of another, and an action is brought by the plaintiff to recover damages for that other. This may be illustrated by referring to a well decided case where it appeared that a child, walking upon a rail- road track, was injured by a train backing upon it. No one on the train saw the child, but if a proper look-out had been kept the child would have been seen and the injury avoided. The railroad company was held liable to pay damages to the father of the child, notwith- standing any negligence on his part in allowing the child to be ex- posed to the danger.^"^ So, although a man negligently puts his life "*10 Mees. & W. 546; s. c. 2 Thomp. Neg., 1st ed., p. 1105. "'Frick V. St. Louis &c. R. Co., 5 Mo. App. 435; Railroad Co. v. Kas- sen, 49 Ohio St. 230; Kerwhacker v. Cleveland &c. R. Co., 3 Ohio St. 172 ; s. c. 1 Thomp. Neg. 1st ed., p. 472. The fact that two of three passage- ways under a railroad bridge over a street were of less than the statu- tory width, was not the proximate cause of an injury received by a traveller on the street in the pas- sage which was more than the stat- utory width: Barron v. Chicago &c R. Co., 89 Wis. 79; s. c. 61 N. W. Rep. 303. The excessive speed of a railway train was not the proximate cause of an injury to a child, who slipped upon a pile of dirt negli- gently left by the railway company in the street, outside of the end of its ties, and slid down under the train: Louisville &c. R. Co. v. Sears, 11 Ind. App. 654; s. c. 38 N. E. Rep. 837. A rule of a railway company required its engineers to stop their trains on approaching a switch, in the absence of a light, indicating that the switch was set and lighted. A switch was opened in the night, and through defendant's neg- ligence was left open and a light placed on it, indicating that it was closed; but the light had accident- ally gone out. The engineer failed 86 to obey the rule, and the train went on the siding and an accident hap- pened. The negligence of leaving the switch open, and not the failure of the engineer to obey the rule, was deemed the proximate cause of the accident: Lake Shore &c. R. Co. v. Wilson, 11 Ind. App. 488; s. c. 38 N. B. Rep. 343. The negligent act of a. railway company in misplacing a switch, derailing a train of oil tank cars, was not the proximate cause of an injury to a railway employe, two miles away, caused by an explo- sion of one of the oil tank cars after his coming to the scene of the acci- dent, to assist in preventing the spread of the fire: Cleveland &c. R. Co. V. Ballentine, 84 Fed. Rep. 935; s. c. 56 U. S. App. 266; 28 C. C. A. 572. The failure of a railway com- pany to give notice of the move- ments of its trains to its employes upon other trains, was not the proxi- mate cause of a collision which would not have occurred but for the gross negligence of the engineer and cfew of the two colliding trains: Little Rock &c. R. Co. v. Barry, 84 Fed. Rep. 944; s. c. 56 U. S. App. 37; 28 C. C. A. 644. a Compare §§ 204, 219, 220, 344, where this section is referred to. 'Tost, § 235, et seq.; § 289, et seq. '" Frick V. St. Louis &c. R. Co., 5 GENERAL DOCTRINES. [2d Ed. in peril by walking on the trestle-work of a railroad, yet if, after see- ing his exposed position, the engineer of an approaching train might, by the exercise of ordinary care, and without exposing himself or his passengers to undue risk, have stopped his train so as to avoid run- ning upon the man, it may be held' liable in damages if it runs over him and kills him. And the conclusion would be the same if the engineer could, by the proper watchfulness, have discovered the tres- passer in his exposed position in time, by the like exercise of ordinary care, to have avoided running upon him.^''* The same conclusion will obtain, for stronger reasons, in the case of a traveller killed while lawfully using the highway at a railroad crossing. Here, the rail- road company owes a duty to the public to maintain on its approach- ing trains a vigilant look-out, and if, through a neglect of this duty, a traveller is run upon by a train and killed, or injured, the company will be liable in damages, although the traveller may have been negli- gent in exposing himself to danger, or in not maintaining a sufficient watch for approaching trains.^'' So, although a passenger who steps or falls from a moving train upon the track, may have been guilty of negligence in so doing, yet if the man in charge of the train takes no heed of the accident to him, but refuses to stop the train on being informed of it, and fails to give notice of it by telegraph to a train following them, — in consequence of which the passenger who thus stepped or fell off lies helpless on the track, and is run over and killed by the next train, — the railroad company \\ill have to pay damages, because its negligence is the proximate, while the negli- gence of the deceased passenger is the remote cause of his death.^°° So, although the owner of a horse has been negligent in allowing it to stray upon a railroad track, yet if, knowing the exposed situation of the horse, the servants of the railroad company fail to exercise reason- able care to avoid running their train upon it, and do run their train upon it and kill it, the railroad company will be held in damages to the owner.-"^ Negligence of the owner of stock in permitting it to run at large, is not deemed the proximate cause of the injury, where the stock is killed through the negligence of a railroad company, and Mo. App. 435; s. c. aff'd 75 Mo. 542; 49 Ohio St. 230; s. c. 16 L. R. A. 674; Frick V. St. Louis &c. R. Co., 75 Mo.. 12 Rail. & Corp. L. J. 78; 31 N. E. 595 (a different action growing out Rep. 282. of the same accident). ^' Bostwick v. Minneapolis &c. R. '»» Clark V. Wilmington &c. R. Co., Co., 2 N. D. 440; s. c. 51 N. W. Rep. 109 N. C. 430; s. c. 14 L. R. A. 749; 781; 49 Am. & Eng. Rail. Cas. 527. 14 S. E. Rep. 43 ; 48 Am. & Eng. Rail. The leading case on this subject is Cas. 546. Kerwhaker v. Cleveland &c. R. Co., •"Hilz V. Missouri &c. R. Co., 101 3 Ohio St. 172; s. e. 2 Thomp. Neg. Mo. 36; s. c. 13 S. W. Rep. 946. 1st ed. p. 472. *" Cincinnati &c. R. Co. v. Kassen, 87 1 Thomp. Neg.] proximate and remote cause. does not prevent a recovery.^"^ Nor was want of due care on the part of the owner, whereby a horse escaped from a car in which it was shipped, deemed the proximate cause of the death of the animal when killed by another train, after it had followed a public road for some miles and returned again to the traek.^"^ The doctrine on this sub- ject leads us to the margin of the doctrine of comparative negligence^ which obtains in one or two states only, and which is considered in the next title under the general head of contributory negligence.^"* ''"'Moses V. Southern &c. R. Co., rule of comparative negligence, as 18 Or. 385; s. c. 8 L. R. A. 135; 42 administered In Georgia, no recov- Am. & Eng. Rail. Cas. 555. . ery can be had by A. for an injury ''"' Louisville &c. R. Co. v. Kelsey, to his property produced by the 89 Ala. 287; s. c. 42 Am. & Eng. R. mutual negligence of the servant of Cas. 584; 7 South. Rep. 648. See A. and the defendant, unless the also White v. St. Louis &c. R. Co., servant of A. was in less fault than 26 Mo. App 564; s. c. 2 West. Rep. the defendant: Central R. &c. Co. v. 593. Newman, 94 Ga. 560; s. c. 21 S. B. '"Post, § 259, et seq. Under this Rep. 219. «8 ILLUSTRATIONS OF THESE DOCTRINES. [2d Ed. CHAPTER V. ILLUSTRiTIONS OF THESE DOCTEINES. Art. I. In the Case of Highway Accidents, §§ 91-104. Akt. II. In the Case of Eailway Accidents, §§ 107-122. Art III. In Various Other Cases, §§ 125-145. Article I. In the Case op Highway Accidents. Section 91. Rule Illustrated by wrongful acts frightening travellers' horses. 92. Rule illustrated by defects in highways frightening travel- lers' horses. 93. "What defects in highways are the proximate causes of in- juries in cases of horses taking fright. 94. What defects in highways are not the proximate causes of juries in cases of horses tak- ing fright. 95. Other illustrations in cases of travellers' horses taking fright. 95. Other illustrations in cases of horses taking fright. Section 97. Other horse-frightening illustra- tions. 98. In case of collisions on the high- way. 99. In case of injuries from defects and obstructions in highways. 100. In case of injuries through de- fects in public bridges. 101. In case of other injuries re- ceived while driving. 102. Injuries received while travel- ling on Sunday. 103. Town liable for Sunday inju- ries under New Hampshire statute. 104. Liability for Sunday injuries under Iowa statute. § 91. Rule Illustrated by Wrongful Acts rrightening Travellers' Horses.^ — To illustrate : A. is passing along the street in his chaise, when the dog of B. leaps at his horse ; the horse takes fright and be- comes unmanageable; in endeavoring to restrain him, a rein is broken ; in consequence of this, the chaise is dashed against a post and broken. The attack of the dog, and not the breaking of the rein, is the proximate cause of the injury; and under a statute making the a This section is cited in §§ 1237, 1332. 89 1 Thomp. Neg.J proximate and remote cause. owner of vicious dogs liable for damages caused by them/ B. must pay damages to A.^ A street car is running at an unlawful rate of speed, in consequence of which it strikes a dray, breaks its shaft, and causes the horse to run away. The driver, while endeavoring to se- cure the horse, is struck by the broken shaft and hurt. The unlawful act of the street railway company is the proximate cause of his in- jury.^ A horse is allowed to run at large on a public street, in viola- tion of a municipal ordinance. A man is driving a mare along the street, and her colt is running along by her side ; the horse chases the colt ; this frightens the mare so that she runs away, and both the mare and the colt are injured. The owner of the mare and colt has a right of action against the owner of the horse for the damage thus pro- duced.* A horse takes fright and runs away, through the negligence of A. The horse and wagon of B. are standing on the side of the street. B., seeing the approach of the runaway horse, endeavors to hold her horse by the bridle. While attempting to do this, the wagon of A. collides with her wagon, demolishing it, and throws her against the shafts, injuring her. The negligence of A., causing the fright of his horse, was the proximate cause of her injury, and she has a right of action against him.^ § 92, Rule Illustrated by Defects in Highways Frightening Trav- ellers' Horses. — A. and B. are travelling upon a turnpike road, each with a horse and wheeled vehicle, B. immediately behind A. ; and in consequence of obstructions in the road, negligently left there by the turnpike company, the harness of B., though made of good and suffi- cient materials, breaks, and thereby the horse of B. becomes fright- ened and ungovernable, and runs with his wagon upon A., injuring him. Here the negligence of the turnpike company is the proximate ' Rev. Stat. Mass., chap. 58, § 13. 166 ; McDonald v. Snelling, 14 Allen ^Sherman v. Favour, 1 Allen (Mass.) 290. It has been ruled that (Mass.) 191. See also Sneesby v. if a horse Is undoclle, unroadwise, Lancashire &c. R. Co., L. R. 9 Q. B. or unroadworthy, and In conse- 263. quence of this infirmity, becomes ^ Duffy V. Cincinnati Street R. Co., frightened at some noise, such as 2 Ohio N. P. 294. the scraping noise of the wheels on * Kitchens v. Elliott, 114 Ala. 290; the rails of a street car track, and s. c. 21 So. Rep. 965. runs away, the proximate cause of ° Willis V. Providence Telegram the resulting damage is the undocile Pub. Co., 20 R. I. 285; s. c. 38 Atl. nature of the horse, rather than the Rep. 947. See also Campbell v. negligence of the railroad company Stillwater, 32 Minn. 308; s. c. 50 in maintaining its track in a man- Am. Rep. 567; Kennedy v. New ner forbidden by the city ordinance: York, 73 N. Y. 365; s. c. 29 Am. Rep. Macon v. Dykes, 103 Ga. 847; s. c. 31 169; Sturgis v. Kountz, 165 Pa. St. S. E. Rep. 443. But it would seem 358; s. c. 27 L. R. A. 390; Billman that such a case would properly pre- v. Indianapolis &c. R. Co., 76 Ind. sent a question for a jury. 90 ILLUSTRATIONS OF THESE DOCTRINES. [2d Ed. cause of A.'s injury, and such company is liable to him in damages." This doctrine is applied in cases of injuries in consequence of defects in highways, through the negligence of towns, in New Hampshire,' Illinciis,* Kansas," Connecticut,'" and Pennsylvania;" but is denied in Maine, Massachusetts, and Wisconsin, where the rule is, that if the injury is occasioned by a defect in the highway, and some other cause for which the town is not responsible, the town it not liable.'^ It may be observed, that these decisions are not well calculated to estab- lish or illustrate any general principles. They rest to a great extent on the supposed meaning of the legislatures of the States in ques- tion, in enacting particular statutes giving damages against towns for injuries sustained in consequence of defects in their highways.'^ " Goshen Turnpike Co. v. Sears, 7 Conn. 86, 94. ' Clark V. Harrington, 41 N. H. 52; Tucker v. Henniker, 41 N. H. 317; Wlnshlp v. Enfield, 42 N. H. 197. ' Joliet V. Verley, 35 111. 58; Lacon v. Page, 48 111. 499; Aurora v. Pul- fer, 56 111. 270. " Atchison v. King, 9 Kan. 550. " Goshen Turnpike Co. v. Sears, 7 Conn. 86, 94; Baldwin v. Green- woods Turnpike Co., 40 Conn. 238; s. c. 13 Am. Law Reg. (N. S.) 423. " Lower Macungie Township v. Merkhoffer, 71 Pa. St. 276. A sleigh was overturned by an ash heap in a highway, negligently left there by the township. The horses attached to the sleigh thereupon became fright- ened and ran away, and, about five or six miles distant, and a mile from any highway, they were killed by a railway locomotive. It was held that the negligence of the township, if any, was not the prox- imate cause of their being killed: West Mahanoy v. Watson, 112 Pa. St. 574; s. c. 56 Am. Rep. 336. "Anderson v. Bath, 42 Me. 346; Moore v. Abbott, 32 Me. 46 ; Moulton V. Sanford, 51 Me. 127; Perkins v. Fayette, 68 Me. 152; Rowell v. Low- ell, 7 Gray (Mass.) 100; Stickney v. Salem, 3 Allen 374; Richards v. En- field, 13 Gray 344; Davis v. Dudley, 4 Allen 557; Titus v. Northbridge, 97 Mass. 258; Horton v. Taunton, 97 Mass. 266; Murdock v. Warwick, 4 Gray 178; Shepherd v. Chelsea, 4 Allen (Mass.) 113; Houfe v. Fulton, 29 Wis. 296; Kelley v. Fond du Lac, 31 AVis. 179; Jackson v. Belleview, 30 Wis. 250; Hawes v. Fox Lake, 33 Wis. 438. Thus, if the accident was the result of a defect in the high- way and the breaking of the harness of the traveller's horse, no damages can be recovered, although the breaking of the harness may have been entirely accidental. Anderson V. Bath, 42 Me. 346. '" "We know," said Peters, J., re- ferring to the doctrine of the Maine court under this head, "the opposite view is taken by several other courts. It is to be admitted, also, that we do not ordinarily apply the same rule, in this respect, in cases of this kind, that we do in other classes of cases. The remedy sought for here is statutory, and not at common law. The early cases in this State construed the statute somewhat strictly. The plaintiff contends that a town should be lia- ble, even if the defective way is not the sole cause of the injury, pro- vided that the cooperating and con- tributing cause is nothing for which the person injured is at all in fault, and over which he could exercise no agency or control. This view was taken by a minority of the court in the case alluded to; but the case was decided otherwise, upon the ground that the positive terms of the statute, as interpreted by previ- ous adjudications, would not admit of such a construction. Now that the principle has been so deliber- ately affirmed and established, we have no hesitation in declaring that it should be firmly maintained. Its restraining influence, in view of the inconsiderateness of juries in too many of this class of cases, can not but be productive of good." Perk- ins V. Fayette, 68 Me. 152, 154. 91 I Thomp. Neg.J proximate and remote cause. The conflicting results to which they lead may be illustrated by a few other rulings. § 93. What Defects in Highways are the Proximate Causes of In- juries in Cases of Horses Taking Fright. — Coming, for the sake of illustration, to a subject which is more fully considered in another vol- ume, we find that it has been held that where a horse is frightened by a moving street car, and runs away, and the driver is injured by collision with a dangerous obstruction in the street, the obstruction is the proxi- m.ate cause of the injury, and the city is liable.^* The falling of ice and snow from a building upon a horse, causing him to start, whereby the driver, who was engaged in unloading a wagon, was thrown from a wagon and injured, was held the direct, proximate cause of the injury, although the ice and snow did not hit the driver. ^^ Where a well- broken horse, while being carefully driven, suddenly shied at a bird in the bushes, and jumped several feet from the usually travelled por- tion of a bridge, and broke through a defective part, it was held that the shying was not the proximate cause of the injury, and that the town was liable.^® A pole was left in a street by the negligence of the town. The horse of a traveller, ordinarily safe and roadworthy, took fright and shied at the sudden appearance of an electric car around a curve, causing the driver to lose momentary control of him, so that he swerved a few feet to one side, and brought the carriage in contact with the pole. It was held that the negligence of the township in leaving the pole in the street, and not the shying of the horse, was the proximate cause of the accident, though it would have been different if the horse had not been reasonably safe, and roadworthy.^' Sim- ilarly, it was held that the piling of snow in the street at the side of a street railway track, from which it had been removed, was the prox- imate cause' of injuries to one whose buggy was overturned by the snow, although, at the time, his horse had become frightened, and he had lost control, where it appeared he would have been able to control and prevent any injury, but for the presence of the snow.^' And, generally, it may be affirmed that the defective condition of a high- way, but for which an accident to one driving a horse or a team would not have happened, may be deemed the proximate cause of the acci- " Campbell v. Stillwater, 32 Minn. "Cleveland v. Bangor, 87 Me. 259; 308; s. c. 50 Am. Rep. 567. Compare s. c. 47 Am. St. Rep. 326; 32 Atl. Maher v. Winona &c. R. Co., 31 Rep. 892. Minn. 401. "McDonald v. Toledo &c. Street "Smethurst v. Proprietors Ind. R. Co., 74 Fed. Rep. 104; s. c. 43 U. Cong. Churcli, 148 Mass. 261; s. c. S. App. 79; 29 Chicago Leg. News 19 N. B. Rep. 387; 2 L. R. A. 695. 35; 36 Ohio L. J. 49; 1 Ohio Dec. '= Aldrich v. Gorham, 77 Me. 287. Fed. 294. 92 ILLU3TKATI0NS OF THESE DOCTRINES. [2d Ed. dent, notwithstanding that, at the time of the accident, the horses, the same being roadwise and roadworthy, were, without any fault of the driver, running away.^® Thus it has been held that the absence of a guard rail from a ditch at the side of a railway, the travelled portion of which is 15 feet wide, is not the proximate cause of the occupants of a buggy being precipitated over the declivity, where the immediate cause was the shying of the horse as the driver attempted to drive around a cow which was lying in the highway.^" Nor was the absence of a guard rail on the side of a declivity along a highway deemed the proximate cause of a wagon running down the slope, where the primary cause of the accident was the circumstance that the tugs became detached from the whippletree, allowing the pole to drop and frighten the horses, so that they ran away.^^ The Supreme Court of Illinois have held that the negligence of a city in leaving its street in an unsafe condition, is the proximate cause of an injury sustained by a traveller, though the injury would not have occurred but for the circumstance of his horse becoming frightened and run- ning away, in consequence of the bit of the bridle becoming loosened ; there being no negligence on the part of the traveller.^^ This is a good illustration of a principle, elsewhere referred to, that, for an injury which is the combined result of negligence and accident, the author of the negligence is liable. ^^ Where the plaintiff's horse took fright, on a bridge, at a hog under the bridge, without the fault of the plaintiff, and backed off the bridge in consequence of there being no guards or railing, the defect in the bridge was the proximate cause of the injury, and the county was liable.^* '" Foley v. East Flamborough, 26 to the traveller endeavoring to cross Ont. App. 43 ; Union Street R. Co. v. a railroad track, but where an ob- Stone, 54 Kan. 83; s. c. 47 Am. & struction, placed there by the rail- Eng. Corp. Cas. 90; 37 Pac. Rep. road company, consisting of its train 1012. That there are cases which projecting into the highway, direct- seem to point to the contrary con- ly contributed thereto, so as to malje elusion, see L. Wolff Man. Co. v. the company liable : Chicago &c. R. Wilson, 152 111. 9; s. c. 26 L. R. A. Co. V. Prescott, 59 Fed. Rep. 237; 229; 38 N. E. Rep. 694. s. c. 23 L. R. A. 654; 8 C. C. A. 109. ™ Heister v. Fawn, 189 Pa. St. That the failure to provide guard 253; s. c. 43 vV. N. C. (Pa.) 389; 29 rails along the margin of an em- Pitts. L. J. (N. S.) 310; 42 Atl. Rep. bankment is the proximate cause of 121. an injury to a traveller, where his =' Card V. Columbia, 191 Pa. St. horse shies and precipitates him 254; s. c. 43 Atl. Rep. 217. over the embankment, see Gage v. "^Joliet V. Shufelt, 144 111. 403; Pontlac &c. R. Co., 105 Mich. 335; s. c. 8 L. R. A. 750. s. c. 2 Det. L. N. 108; 63 N. W. Rep. '"Ante, § 68; Joliet v. Verley, 35 318. That negligence in running 111. 58; s. c. 85 Am. iJec. 342. against an insufficient guard rail is " Boone County v. Mutchler, 137 not the proximate cause of injuries Ind. 140; s. c. 36 N. E. Rep. 534. produced by its breaking, see Sind- Circumstances under which the shy- linger v. Kansas City, 126 Mo. 315; ing of a traveller's horse was not s. c. 26 L. R. A. 723; 28 S. W. Rep. deemed the sole cause of an accident 857. 93 1 Thomp. Neg.] proximate and remote cause. § 94. What Defects in Highways are not the Proximate Causes of Injuries in Cases of Horses Taking Fright. — In an instructive ease it appeared that a highway had been raised by a fill or embankment where it crossed a swale, to a height of from four to six feet above the level of the ground, and was left from nine to fourteen feet wide on the top, and without any barriers being erected. A traveller's horse became frightened at a log lying outside the wrought portion of the highway, and, being struck by its driver, sprang forward, went down the embankment, throwing the occupants of the buggy out, and injuring the plaintiff. It was held that the narrowness of the high- way and the neglect of the tovm to erect barriers along it, were not the primary, but were the secondary, or remote, causes of the accident, and that the town was not liable.^ ^ This case does not seem to have been well decided. In line with this decision, it has been held that the frightening of a horse, which was ordinarily gentle, by a yoke of calves coming suddenly out from bushes beside the highway, causing the horse to back the wagon over a steep river bank, and seriously injuring the occupants, was the proximate cause of the injury, where the road was in good condition for the width of 12 or 18 feet, al- though the driver could have managed the horse if the road had been wider.^® So, the sound caused by the scraping of a carriage wheel against a stone, which frightened a horse, causing him to start up with increased speed, was deemed the proximate cause of an injury to one who was thrown out of the carriage as the horse turned a corner while thus frightened and running, even if there were concurring conditions, as distinguished from active causes, without which the accident would not have happened ;^^ and in another case an agri- cultural society, which permitted teams to be driven around its track after the races are over for the day, was not liable- for injuries to one visiting its fair, caused by the driver of a team of young horses whip- ping them so that they ran away and ran off the track against such visitor, the proximate cause of the injury being the driver's wrongful act.^* Where a horse was frightened by the falling of an object from an upper window of a building in front of which the horse was hitched, and broke away and ran into a lot of iron rails left in the street, in- tended to be used in repairing a street railway track, it was held that the proximate cause of the injury was the frightening of the horse, and »Beall V. Athens, 81 Mich. 536; s. c. 15 L. R. A. 365; 35 Am. & Eng. s. c. 45 N. W. Rep. 1014. Corp. Cas. 480; 29 N. E. Rep. 633. ^ Smith V. County Court, 33 W. '^ Barton v. Pepin County Agri. Va. 713; s. c. 8 L. R. A. 82; 11 S. E. Soc, 83 Wis. 19; s. c. 46 Alb. L. J. Rep. 1. 371; 52 N. W. Rep. 1129. "Bowes V. Boston, 155 Mass. 344; 94 ILLUSTRATIONS OP THESE DOCTRINES. [2d Ed. that the street railway company was not liable.^' Where horses, frightened by the upsetting of a vehicle, caused by an obstruction in the highway, due to the negligence of the town authorities, ran away, and, after following the highway for some distance, turned upon the railroad track, and were killed by a passing train at quite a distance from such obstruction, — it was held that the town authorities were not liable.^" § 95. Other Illustrations in Cases of Travellers' Horses Taking Fright. — The horse of a traveller accidentally takes fright, and, run- ning away, receives or inflicts an injury by coming in contact with a defect in the highway. The town is not liable, the damages being too remote.^^ A town negligently constructs a bridge without railings. In crossing it, the horse of a traveller becomes accidentally frightened; the carriage is thrown into the water, and the traveller injured. The town is not liable, for the fright of the horse, and not the failure of the town to provide the bridge with a railing, is the proximate- cause of the damage.^ ^ But if a defect in a highway causes such a breaking and derangement of a safe and proper vehicle that the direct and natural consequence is the frightening of a kind, safe, and well- broken horse, and puttting him beyond the control of a reasonably skillful and careful driver, the town, liable to repair the highway, and having notice of the defect, must answer for the consequences, al- though the ultimate injury occurs, fortunately for all concerned, on a spot where the way may be smooth, and not defective.^ ^ Thus, A., a female, is travelling along a highway which the town has negligently permitted to become rough and out of repair. While passing over a rock and a rut, the bolt comes out of the whippletree, and the whip- pletree strikes the heels of the horse; whereat the horse becomes frightened, and, after running violently down a steep hill, stumbles and falls on a level place, throwing A. out of the carriage and injur- ing her. If the defects in the highway caused the bolt to come out, the negligence of the town was the- proximate cause of the injury, and not the stumbling of the horse. It is to be deemed all one- catastro- "• Bleil V. Detroit Street R. Co., 98 Lynch v. Northern Pac. R. Co., 84 Mich. 228; s. c. 57 N. W. Rep. 117. Wis. 348; s. c. 54 N. W. Rep. 610. '"West Mahanoy v. Watson, 112 '' Davis v. Dudley, 4 Allen (Mass.) Pa. St. 574; s. c. 3 Cent. Rep. 243. 557. That the frightening of a horse at . °^ Moulton v. Sanford, 51 Me. 127 large in a highway, so that he jumps ( Davis, Cutting, Kent, Walton, and over the cattle guards and runs Barrows, J J., concurring; Appleton, along a railroad track, gets tangled C. J., and Rice and Dickerson, JJ., in a bridge, and is thereby injured, dissenting). is not the proximate cause of the '= Willey v. Belfast, 61 Me. 569. To Injury, or a basis of recovery, — see the same point, Topeka v. Tuttle, 5 Kan. 311, 322. 95 1 Thomp. Neg.] proximate and remote cause. phe, from the passing of the wheels over the rock and rut until A. strikes the ground.^* But if a horse, drawing a vehicle, driven with due care, becomes frightened in consequence of the vehicle pitching into a hole in the highway, negligently suffered to remain there by the city, and, running away, escapes control of its driver, and turns, and, at the distance of fifty rods from the defect in the highway, knocks down a pedestrian who is travelling along the highway in the exercise of reasonable care, the negligence of the city is not the prox- imate cause of the injury to the pedestrian, although no other cause intervenes between the taking fright of the horse and the receiving of the injury.-'' ° § 96. Other Illustrations in Cases of Horses Taking Fright. — An ordinarily gentle horse takes fright at an object which the town has negligently and improperly allowed to remain in the highway, and, running away, throws the driver out of the wagon and injures him. The negligence of the town is the proximate cause of the injury.'^ A steam-whistle on a locomotive is sounded under a bridge while a traveller is passing over it, whereat his horses take fright, run away, and he is injured. The negligence of the servant of the company is the proximate cause of the injury, and the company must pay dam- ages. ^^ A turnpike company is negligent in not providing a good and sufficient railing on the side of one of its bridges. A traveller's horse takes fright and becomes uncontrollable upon the town road, which the company is not bound to repair; it runs thence upon pri- vate property; thence back upon the town road; thence upon the company's bridge, over the side of which it falls, and is injured. If the injury would have been prevented by a sufficient railing on the bridge, the company must pay damages, notwithstanding the previous combination of accidents.^ ^ A pair of horses hitched near a public highway become frightened from some unknown cause, run upon and down the highway upon a bridge, which is defective for want of a railing, and one of them falls off the bridge and is killed. On like ground, the town must pay damages.^" A. puts a heap of lime rub- bish in the street, and the dust blowing frcim it frightens the horse of B., attached to a chaise, and he runs away ; and B., to avoid colliding with an approaching wagon, reins his horse to one side; in conse- ''Willey v. Belfast, 61 Me. 569. "Pennsylvania R. Co. v. Barnett, ^ Marble v. City of Worcester, 4 59 Pa. St. 259, 265. Gray (Mass.) 395. =' Baldwin v. Turnpike Co., 40 =« Clark V. Lebanon, 63 Me. 393. Conn. 238. So held where, on similar facts, the '' Ward v. North Haven, 43 Conn. injury was to a team of horses, and 148. not to the driver. Topeka v. Tuttle, 5 Kan. 311, 322. 96 ILLUSTRATIONS OF THESE DOCTRINES. [2d Ed. quence, he runs upon another heap of lime rubbish, and upsets the chaise and injures B. Here, B. can not recover damages of A., for the negligence of A. is not the proximate cause of B.'s injury,*" but it is rather to be ascribed to accident, or inability in the driver,*^ or to his unskillfulness.*^ § 97. Other Horse-rrightening Illustrations. — A horse of A. takes fright at a locomotive, and runs from the field where it is feeding, on to a railway track which is not properly fenced, and is there injured by breaking its legs between the bars of a cow-pit. The company is not liable. The damages are too remote.*' There must, in the view of this court, be an actual collision between the locomotive of the train, and the animal.** The negligent manner in which a blast is set ofE is the proximate and direct cause of an injury to the owner of a team standing in a lumber-yard adjacent to the street in which the blasting is done, where such injury is caused by such owner running in front of the team in an endeavor to stop them upon their becoming frightened by stones thrown by the explosion falling upon the roof of the shed in which he was standing.* ° The servant of A. so negli- gently drives in the public street as to come in collision with the car- riage of B. In consequence of this, B.'s horses take fright and run away, injuring C. A. must pay damages to C.*' A traveller's horse took fright through the defendant's negligence, and, while the trav- eller was endeavoring to control it, the lines broke, in consequence of which the horse veered around, upsetting and breaking the wagon and running away. It was held that if the negligence of the defendant was one of the concurring causes, without which the injury would not have happened, within the meaning of the principle already stated,*' then, whatever the condition of the plaintiff's harness, this wcnild not defeat a recovery, unless such condition was the result of negligence on his part.*' It was held, in another jurisdiction, that if an injury of a character similar to the above were occasioned jointly by a defect in the highway, which the defendant was bound to keep in repair, and " Flower v. Adam, 2 Taun. 314. " Ohio &c. R. Co. v. Cole, 41 Ind. " Per Lord Mansfield. 331. " Per Lawrence, J. Other cases in ** Hid; Peru &c. R. Co. v. Hasket, which the fright of the horse, and 10 Ind. 409. not the obstruction upon or into " Prescott v. Connell, 22 Can. S. C. which the horse precipitated the 147. driver, was held to be the proximate " McDonald v. Snelling, 14 Allen cause of his injury: Lambeck v. (Mass.) 290. Grand Rapids &c. R. Co., 106 Mich. "Ante, § 56. 512; s. c. 2 Det. L. N. 536; 64 N. W. " Putnam v. New York &c. R. Co., Hep. 479; Farmers' High Line Canal 47 Hun (N. Y.) 439; 14 N. Y. St. &c. Co. v. Westlake, 23 Colo. 26; s. c. Rep. 329; following Ring v. Cohoes, 46 Pac. Rep. 134. 77 N. Y. 83. VOL. 1 THOMP. NEG. — 7 97 1 Thomp. Neg.j proximate and remote cause. by a defect in the plaintiff's harness, the plaintiff can not recover, not- withstanding he had no knowledge of such defect, and was not in fault in not knowing it.*° § 98. In Case of Collisions on the Highway.^ — Where the plaintiff was driving slowly along a street railway track on one of the streets of a city, and was met by and came into collision with a team driven at a dangerous and unlawful rate of speed, and a collision might have been avoided but for the fact that the track of the street railway com- pany had been allowed to become out of repair, by the rails being left so high above the surface as to prevent the parties from readily turn- ing out, — it was held that the proximate cause of the injury was the unlawful rate of speed at which the other team was being driven, and not the negligence of the city in leaving the rails of the street rail- way company in a condition constituting a nuisance, and hence that the city was not liable for the damages.^" In another case it ap- peared that a street car, while crossing- a street on which a funeral procession was moving, stopped suddenly in the middle of the street, in front of the first carriage, thereby causing it to stop so suddenly that the pole of the second carriage, which was following close be- hind, broke into its back. It was held that the stopping of the street car was the proximate cause of the injury. "The carriages were nearly 'in touch,' and connected like one machine, and this sudden stopping of the car, as the cause, operated on all alike and nearly at the same time, and the injury was within this unbroken sequence. If each carriage except the last had been injured in the same manner, the damages would have been proximate to this sudden stopping of the car. It would be difficult to suppose a case that more perfectly illustrates the principle of proximate damages than this. All that occurred at the time that could possibly affect the plaintiff was con- nected with, and the consequence of, the stopping of the car across the street." ^^ In consequence of the negligence of the defendants, their horses ran away and collided with a carriage, causing the horses attached thereto to be dashed down a depression in the road, throwing *° Moore v. Abbot, 32 Me. 46; at an unlawful rate of speed. This Coombs V. Topsham, 38 Me. 204; is one of the ordinary accidents or Farrar v. Greene, 32 Me. 574. dangers of travel ; and a city ought a Compare post, § 1283, et seq. to be held bound to keep its road- °° De Camp v. Sioux City, 74 Iowa way in such a state of repair as to 392; s. c. 37 N. W. Rep. 971. This make reasonable provision against decision does not seem to be sound, such dangers. Persons are liable to drive at a °' Mueller v. Milwaukee Street R. rapid rate of speed. Persons driv- Co., 86 Wis. 340, 343, opinion by ing at a lawful rate of speed are Orton, J.; s. c. 21 L. R. A. 721; 56 liable to encounter persons driving N. W. Rep. 914. 98 ILLUSTRATIONS OF THESE DOCTRINES. [2d Ed. one of the occupants of the carriage to the ground and killing her. It was held that the negligence of the defendants was the proximate cause of her death. °^ A city ordinance forbade any person from leaving a team unhitched on a public street. A. left his team so un- hitched, and it ran away and collided with the team of the plaintiff. It was held that A. was liable to the plaintiff for the damages thereby inflicted. ^^ A horse took fright and suddenly backed a wagon, so that a boy riding at the end of it was injured by the pole of a vehicle following. The fright of the horse was the proximate cause of the injury, if it could not have been avoided by the driver of the wagon following in the exercise of due care.°* § 99. In Case of Injuries from Defects and Obstructions in High- ways.^ — Through the negligence of a town, its highway was out of re- pair, and the wagon of a traveller stalled in the mud. The driver procured a third horse, and while urging them to pull the wagon out, one of the horses burst a blood vessel and died'. It was held, under the Massachusetts statute, that the death of the horse was a direct and immediate consequence of the defect in the highway, and that the town was liable therefor. ^° A horse running away in consequence of the thills dropping down and striking a defective planking at the railway crossing, the proximate cause was deemed to be the horse running away, and not the defect in the crossing. ^^ An open ditch on the side of a much travelled street, near a street car track, was deemed the proximate cause of an injury to one driving a team, who, in order to avoid an approaching ear, draws his team to one side, whereby one horse falls into the ditch and plunges so as to place the wagon in a position where it is struck by the car.^^ "^Belk V. People, 125 111. 584; s. c. country road, in a wagon driven by 15 West. Rep. 59; 17 N. E. Rep. 744. a man known to him to be drunk, is '^ Bott V. Pratt, 33 Minn. 323 ; s. c. overturned and injured by being 53 Am. Rep. 47. precipitated down an unfenced bank " Gibbons v. Vanderhoogt, 75 111. at the side of the road, the drunken- App. 106; s. c. 3 Chic. L. J. Wkly. ness of the driver, and not the de- 124. fective condition of the road, is the a Compare post, § 1188, e* se* Jammison v. Chesapeake &c. R. 71 Minn. 422; s. c. 74 N. W. Rep. 166. 112 ILLUSTRATIONS OF THESE DOCTRINES. [2d Ed. worthy.^*^ But it has been held that a passenger on a street car can not recover on a count in contract for injuries caused by attempting to alight while the car was moving because it did not stop at the place he expected; since the injury was not the proximate result of the failure to stop. Nor can he recover in tort if the circumstances disclosed that he assumed the risk of the accident. ^^^ § 113. In Case of Injuries Received by Passengers Subsequently to Alighting, when Carried beyond Station. — Where injuries re- ceived by passengers subsequently to alighting, where they have not a reasonable opportunity to alight at the station of their destination, are to be deemed the proximate result, presents a more difficult ques- tion; and possibly each case must stand upon its own facts. Where a railway carrier negligently omitted to stop a train at a flag station, and two young lady passengers were carried by such station, and, after alighting received injuries in attempting to reach the house of friends, the negligence of the carrier was deemed the proximate cause of their injuries, although the walk might have been avoided if they had sought shelter among strangers. ^^* Where a passenger, on leaving a train at night, which had stopped a short distance beyond A, station, had been misinformed by the conductor as to its position, and, instead of going back to the station, being familiar with the neighborhood, wandered on and fell into a cattle-guard, and was in- jured, it was held that the negligence of the railway carrier was not the proximate cause of the injury.^ ^"^ Injuries sustained by a preg- nant woman in consequence of taking a rough carriage ride across the country, from a railway junction to her destination, exposed to a storm, producing a subsequent miscarriage and loss of health, were deemed the proximate result of a statement made to her by the agent of the company when she purchased her ticket, that the train was to make close connections with another train at that junetion.^^* The '" Newark &c. R. Co. v. McCann, £ul act of a railway company in an- 68 N. J. L. 642; s. c. 33 L. R. A. 127; nouncing the name of a station five 4 Am. & Eng. Rail. Cas. (N. S.) 382; miles before it is reached, while the 34 Atl. Rep. 1052. train is stopping at another station, "'White V. West End Street R. by which a passenger is induced to Co., 165 Mass. 522; s. c. 43 N. E. leave the car, may properly be found Rep. 298. by the jury to have been the proxi- "* Kentucky &c. R. Co. v. Biddle, mate cause of injuries sustained by 17 Ky. L. Rep. 1363; s. c. 34 S. W. the passenger in riding to her des- Rep. 904 (not off. rep.). tination on a cold night in the win- "" Lewis V. Flint &c. R. Co., 54 ter time, including an illness result- Mich. 55; s. c. 52 Am. Rep. 790. ing from the ride, where it is not ""Fowlkes V. Southern R. Co., 96 shown that she could have secured Va. 742; s. c. 1 Va. S. C. Rep. 146; better means for continuing her 14 Am. & Eng. Rail. Cas. (N. S.) journey, or that her injuries were 250; 32 S. E. Rep. 464. The wrong- not likely to have resulted under VOL. 1 THOMP. NEG. — 8 113 1 Thomp. Neg.] proximate and remote cause. Supreme Court of Georgia have had no difficulty in holding that the negligence of a railway carrier in taking a female passenger beyond her station, was not the proximate cause of an injury received by her in consequence of the explosion of a lamp -at a hotel at which she was waiting for a return train.^^^ The plain reason is, that such a catas- trophe could not be foreseen, even by the exercise of that high degree of care and foresight which the law puts upon a carrier of passen- gers; it might as well have taken place at her own home, if she had been properly carried to her destination. § 114. In Case of Other Injuries to Passengers. — Failure to prop- erly heat a car is not the proximate cause of an injury to a passenger who falls ofE from the platform while attempting to pass into another car for comfort while the train is in rapid motion.^ ^^ Injuries to a passenger from electricity received by coming in contact with the lower part of a car after being thrown under it, may be deemed to have been proximately caused by the negligence in operating the cars, whereby he was thrown in such a position as to come in contact with the electrical charge.^ ^° The agent of a steamship company repre- the circumstances: Pittsburgh &c. R. Co. V. Klitch, 11 Ind. App. 290; s. c. 37 N. E. Rep. 560. The failure to stop a street-car at a street where a passenger desires to alight is not the proximate cause of injuries sus- tained by him by being pushed off from the car by other passengers at a point a block away in rushing to a car to which they are to be trans- ferred: Chicago City R. Co. v. Con- sidine, 50 111. App. 471. Other cases affirm the doctrine that negligence in carrying a street-car passenger beyond his station is not the proxi- mate cause of any of the events occurring at another place where he attempts to alight: Dresslar v. Citi- zens' Street R. Co., 19 Ind. App. 383; s. c. 47 N. E. Rep. 651. '"Central of Ga. R. Co. v. Price, 106 Ga. 176; s. c. 43 L. R. A. 402; 12 Am. & Eng. Rail Cas. (N. S.) 283; 32 S. B. Rep. 77. "» Sickles V. Missouri &c. R. Co., 13 Tex. Civ. App. 434; s. c. 35 S. W. Rep. 493. "° Denver Tram. Co. v. Reid, 4 Colo. App. 53; s. c. 35 Pac. Rep. 269. Where a passenger, unable to take a train at a flag station through the negligence of the defendant's serv- ants, voluntarily made a journey of 12 miles on foot through the mud when he could have procured a con- 114 veyance for $5, it was held that the inconvenience thereby suffered could not be made a ground of en- hancing his recovery of damages from the railway company: Morse V. Duncan, 8 Am. & Eng. Rail. Cas. 374, U. S. Circuit Court, Miss., Hill, J. The learned Judge cited: Fran- cis V. St. Louis Transfer Co., 5 Mo. App. 7; Trigg v. St. Louis &c. R. Co., 6 Am. & Eng. Rail. Cas. 349. That the wrongful ejection of a passenger from a car does not render the com- pany liable for his death from being struck by another train unless such ejection was the proximate cause of his death, see Edgerly v. Union Street R. Co., 67 N. H. 312; s. c. 36 Atl. Rep. 558. For a complaint held to state a good cause of action, pred- icated upon the fact of a passenger falling upon the track through the negligence of the servants of a rail- road company managing its train, and there, while unconscious, being struck and killed by another train, — see Cincinnati &c. R. Co. v. Cooper, 120 Ind. 469; s. c. 6. L. R. A. 241; 6 Rail & Corp. L. J. 491; 22 N. E. Rep. 340. Negligence of a railway company in allowing a sack contain- ing a bottle of alcohol, the servants of the company ignorant of its pres- ence, to project in the aisle of a pas- senger car, not the proximate cause ILLUSTKATIONS OF THESE DOCTRINES. [2d Ed. sented to an intending passenger that the vessel would not carry steerage passengers from an infected port. This representation was not made good; infectious diseases broke out among the steerage pas- sengers and extended to the crew and to the second cabin passengers. In consequence of this, the vessel was detained in quarantine. It was held that the damage sustained by the passenger to whom the mis- representation has been made, by reason of the detention, was the proximate result of the misrepresentation.^^" § 115. In Case of Collisions of Railway Trains. — A railroad track operated in connection with an iron furnace, by means of what was called a "dinkey" engine, crossed a passenger railway twice in the form of an arc, so as to make the passenger railway subtend the arc as a chord. As a passenger train was on a portion of the arc, the dinkey engine ran into it, through the negligence of the engineer in charge of such engine. N"o one was hurt in this collision. The air brakes were applied to the passenger train, and it was stopped upon the second crossing of the furnace railway. Before the first col- lision the engineer of the dinkey engine reversed his engine, shut off the steam, and then, fearing injury to himself, jumped, together with his fireman, to the ground. By some means, presumably by the jar of the first collision, the throttle of the dinkey engine was opened, and the dinkey ran around the arc to the second crossing and there came again into collision with the passenger train, injuring the plaintiff, who was a passenger thereon. Upon these facts, established by the verdict of the jury, the court held, as a matter of law, that the negligence of the engineer causing the first collision was the proximate cause of the injury to the passenger. For, although the engineer of the dinkey of an injury to a passenger from striking a pillar of an elevated rail- the bottle falling out of the sack, road: Schalscha v. Third Ave. R. and the alcohol being set on fire: Co., 19 Misc. (N. Y.) 141; s. c. 43 Gulf &c. R. Co. V. Shields (Tex. Civ. N. Y. Supp. 251. Failure of a rail- App.), 29 S. W. Rep. 652, reversing road company to build a station- on rehearing 28 S. W. Rep. 709. Neg- house, not the proximate cause of ligence of a railway carrier of pas- an injury to a child, and to its sengers, leaving the door of a pas- mother in trying to rescue It from Sanger train open, rendering the car peril, where the child, who, being a uncomfortable, deemed the proxi- passenger on the company's train, mate cause of an injury to a pas- was allowed by its mother to go senger who is thrown through the upon the platform, at a stopping door of the car, in consequence of a place, and, while there, was thrown sudden, violent lurch, while he is in down and injured by the jolting of the act of closing the door: Denver the cars: De Mahy v. Morgan's &c. R. Co. V. Bedell, 11 Colo. App. Louisiana &c. R. Co., 45 La. An. 139; s. c. 12 Am. & Eng. Rail. Cas. 1329; s. c. 58 Am. & Bng. Rail. Cas. (N. S.) 141; 54 Pac. Rep. 280. Sud- 448; 14 South. Rep. 61. den starting of a car the proximate '^ The Normannia, 62 Fed. Rep. cause of an Injury to a violin in the 469. hands of a passenger, caused by its 115 1 Thomp. Neg.] proximate and remote cause. engine may have been justified in leaping from it to save himself from apparent death or great bodily harm, — ^yet, as the peril which put him to this course of action was brought about by his own negli- gence, that negligence was to be deemed the proximate cause of the injury to the passenger. As the throttle was liable to be opened by the jar of the first collision, it was held that the engineer of the dinkey engine should be presumed to have foreseen that the accident which did happen was liable to happen. ^^^ A steam railway company negligently left one of its cars standing so close to a street car track, that cars on the latter track were liable to come into collision with it, if driven at an unusual rate of speed, but not if driven at a proper rate of speed. The driver of a street car, knowing the position of the car which stood upon the same railway track, nevertheless drove his street car at an unusual rate of speed, in consequence of which it came into collision with the standing car, injuring a passenger on the street ear. It was held that the negligence of the driver of the street car was the proximate, and the negligence of the steam railway com- pany was the remote cause of the injury; and hence that there could be no recovery against the steam railway company.^^^ The plaintiff's son, while at work on a gravel train, was killed in a collision between the gravel train and a freight train. The train dispatcher had wired the conductor of the gravel train, to work until 11 :30, regardless of the freight train, after which time it was the duty of the conductor of the gravel train to have his train on a siding, or protected by a red flag. In disregard of these directions, he kept his train on the main track, and without a red flag displayed, until 11 :47, when the freight train ran into it with the result stated. It was held that the prox- imate cause of the injury was the negligence of the conductor of the gravel train, who was a fellow-servant of the deceased, and not the negligence of the train dispatcher, who was not such a fellow-servant, and consequently that the railroad company was not liable, — ^^^ a great refinement and a very unjust conclusion. An engineer, who had been required to take out an engine that had a defective head- light, disobeyed the order which required him to remain at a given station until another train had passed. Proceeding forward, he ob- "1 Bunting v. Hogsett, 139 Pa. St. (Tex.), 15 S. W. Rep. 44 (no off. 363; s. c. 21 Atl. Rep. 31; 12 L. R. rep.). The reader will note the re- A. 268; 27 W. N. C. (Pa.) 317; 21 semblance between this case and Pitts. L. J. (N. S.) 279; 48 Phila. the class of cases of which Davies Leg. Int. 177. Somewhat in line v. Mann, 10 Mees. & W. 546; s. c. with this case, see Nary v. New 2 Thomp. Neg. 1st ed., p. 1105, is York &c. R. Co., 55 Hun (N. Y.) 612; the leading one. s. c. 29 N. Y. St. Rep. 630; 9 N. Y. "= Corona v. Galveston &c. R. Co. Supp. 153. (Tex.), 17 S. W. Rep. 384 (no off. '== Texas &c. R. Co. v. Doherty rep.). 116 ILLUSTRATIONS OF THESE DOCTRINES. [2d Ed. served the other train approaching at a distance, and stopped his en- gine with abundance of time before it reached him to place in the head-light of his engine a hand-lamp, which had been provided for that purpose. By reason of the want of this hand-lamp, the ap- proaching train came into collision with the standing engine, injuring the fireman of such train. The negligence of the railroad company in sending out the engine with a defective head-light was the remote cause of the injury, and the negligence of the engineer in failing to place the hand-lamp in the head-light was the proximate cause. The proximate cause of the injury being therefore the negligence of , a fellow-servant, the railroad company was not liable,^^* a case which illustrates the gross injustice of the so-called fellow-servant rule. The negligence of a railroad company in failing to supply its train with sufficient brakes, in consequence of which it comes in collision with the train of another company standing on a crossing, was deemed the proximate cause of the collision, rather than the position of the latter train upon the crossing, where both companies had entered into' an arrangement by which each was permitted to allow its train to stand upon such crossing.^ ^^ '"New York &c. R. Co. v. Perri- guey, 138 Ind. 414; s. c. 34 N. B. Rep. 233; 37 N. B. Rep. 976. '"Louisville &c. R. Co. v. East Tennessee &c. R. Co., 60 Fed. Rep. 993. Note the resemblance to Da- vies V. Mann, 10 Mees. & W. 546, which the court cites, and other like cases. For a case where the proxi- mate cause of the death of a rail- road employe, who was killed while in a caboose which was struck and splintered by a locomotive of an- other train, was deemed to be the negligence of the fellow servant in charge of the colliding train, and not the weakness and unsubstantial character of the caboose, which was merely a common box car, — see Lutz V. Atlantic &c. R. Co. (N. M.), 16 L. R. A. 819; B. c. 53 Am. & Eng. Rail. Cas. 478; 30 Pac. Rep. 912. The failure of the servants of a railway company to observe the rules of the company by notifying those in charge of an extra train of the pres- ence of a work train, resulting in a collision, deemed the proximate cause of an Injury arising there- from: Louisville &c. R. Co. v. Heck, 151 Ind. 292; s. c. 50 N. E. Rep. 988; 11 Am. & Eng. R. Cas. (N. S.) 382. The negligent act of trainmen in halting a train at an unusual place, at night, without displaying signals, deemed the proximate cause of a rear end collision with another train, and not the negligence of the engineer of such other train in run- ning the train at a higher rate of speed than that authorized by the regulations of the company: Smith- son V. Chicago &c. R. Co., 71 Minn. 216; s. c. 11 Am. & Eng. R. Cas. (N. S.) 726; 73 N. W. Rep. 853. Negli- gence of railroad employes in allow- ing a car to escape from their con- trol, not the proximate cause of an injury resulting from a collision between it and a train standing on the main track, produced by the act of a third person, for whose conduct the company was not answerable, in attempting to .open a switch: Williams v. Woodward Iron Co., Iu6 Ala. 254; s. c. 17 South. Rep. 517. Negligence of an engineer of one railway company in moving his en- gine toward the crossing of another railway before the train on the crossing has entirely passed, not the proximate cause of a collision pro- duced by the latter train suddenly and unexpectedly backmg, after having cleared the cross track : Kan- sas City &c. R. Co. V. Lackey, 114 Ala. 152; s. c. 21 South. Rep. 444. In another case the plaintiff's intes- 117 1 Thomp. Neg.J proximate and remote cause. § 116. In the Case of Railway Injuries to Animals. — A railway company has been held liable for injuries caused to animals by a train running through a town at a rate of speed prohibited by ordi- nance, though at the time it struck the animals its speed was lawful.^-" So, in another case, it was reasoned that if a horse got upon a railroad track at a point where it was the duty of the company to fence its track, but where it had no fence, and, taking fright at the train, ran along the track in front of it, and was finally overtaken and struck by it at a public highway, where the railroad company was under no duty to fence, its failure to fence at the point where the horse got upon the track might be deemed the proximate cause of the injury.^^^ An injury to a horse "was deemed to have been caused by any moving train or engine," within the meaning of a statute^ ^^ making a rail- road company liable for animals killed or injured "upon or near any unfenced track of any railroad," where the horse was frightened by the train and ran ahead of it and was injured by falling into an open trestle, although it was not touched by the train. ^^^ So, the failure of a railway company to fence its track, as required by a statute, has been deemed the proximate cause of the accident, where, owing to such failure, a horse strays upon the railroad right of way, and be- comes frightened at an approaching train, and runs off the track into a barbed wire fence, maintained by an adjoining owner on his land, and sustains injuries causing its death.^'" But the unlawful speed of the train was not deemed to be the proximate cause of the killing of a lot of young mules, which, being frightened by a train,^ran along the track ahead of it into a trestle, and were not struck by the train at all, which stopped about seventy-five yards before reaching them.^^^ At the same time, the court declined to assent to the view that there could be no recovery in a common law action for negli- gence resulting in the killing of animals by railway trains, unless the tate was killed by collision of the car Miss. 458; New Orleans &c. R. Co. which he was on with a box freight v. Toulme, 59 Miss. 284. c. r, which had been switched upon ^'" Sullivan v. Oregon &c. R. Co., a siding, but which had been blown 19 Or. 319; s. c. 8 Rail. & Corp. L. J. back on the main track by the wind. 208; 42 Am. & Bng. Rail. Cas. 625; At the time it was switched upon 24 Pac. Rep. 408; distinguishing the siding the brakeman in charge Monahan v. Keokuk &c. R. Co., 45 found that the brakes would not Iowa 523. work and he blocked the wheels ^^' Hill's (Oregon) Code, § 4044. with a stick. The question as to ^^ Meeker v. Northern &c. R. Co., whether the defective brakes were 21 Or. 513; s. c. 14 L. R. A. 841; 28 the proximate cause of the damage Pac. Rep. 639; 49 Am. & Eng. Rail, was held to be properly left for the Cas. 518. jury: France v. Rome &c. R. Co., 25 '^Missouri &c. R. Co. v. Eckel, 49 App. Div. (N. Y.) 315; s. c. 49 N. Y. Kan. 794; s. c. 31 Pac. Rep. 693. Supp. 566. '^Lowry v. St. Louis &c. R. Co., "° Illinois &c. R. Co. v. Jordan, 63 40 Mo. App. 554. 118 ILLUSTRATIONS OF THESE DOCTRINES. [2d Ed. animals are actually struck by the train. ^^^ The failure of those in charge of a railway train to sound the steam whistle or ring the bell on approaching a crossing, was deemed not to have been the proximate cause of the killing of a horse on the crossing which was running at large. "^ § 117. Doctrine wMch Gives Damages Only for Direct Contact and Excludes Injuries from Fright. — There is, however, a very question- able class of decisions which construe the statute giving damages for the killing of domestic animals by railway trains, where they stray upon the track in consequence of the failure of the company to fence its track, as required by statute, as intending to give damages only in case where the engine or train comes in direct contact with the animal, excluding damages produced by chasing, worrying and fright.^'* It is a more defensible conclusion that consequential dam- ages to animals resulting from fright, caused by the negligent nin- "''Lowry v. St. Louis &c. R. Co., 40 Mo. App. 554, at p. 558. Compare Halferty v. Wabash &c. R. Co., 82 Mo. 90, 97, with Boggs v. Missouri &c. R. Co., 18 Mo. App. 274, 278. But where a cow was killed by an engine which was running at an unlawful rate of speed, the negli- gence of the railroad company was deemed the proximate cause of the injury, where it appeared from the evidence that the cow would not probably have been killed if the engine had been running so that it could have been stopped after the cow had been seen by the en- gineer and before it was struck, although the fact that, at the time, it was being chased by a dog may have caused it to run upon the' track; Jeffs v. Rio Grande Western R. Co., 9 Utah 374; s. c. 35 Pac. Rep. 505. "'Grand Island &c. R. Co. v. Phipps, 48 Neb. 493; s. c. 67 N. W. Rep. 441. In this case the court said : " As has already been stated, the liability of a railroad company for negligence may be predicated upon an inference, but that infer- ence must be logical and probable from proved or conceded facts. The assumption that this horse would not have attempted to cross the railroad track as it did, if, within sixty rods of the station, a whistle had been sounded, or while the train was within the village if a bell had Deen kept ringing, is neither logi- cal nor probable." The proximate cause of a horse escaping through an open gate upon a railway track, where it was killed, deemed to have Deen the leaving of the gate open, although it crossed the track and came back upon it through an open- ing in the fence on the opposite side of the track which had no gate: Simmons v. Poughkeepsie &c. R. Co., 2 App. Div. (N. Y.) 117; s. c. 73 N. Y. St. Rep. 148; 37 N. Y. Supp. 532. A train wrongfully obstructed a highway grade crossing where there were two tracks. Animalsf were thus prevented from crossing. While they stood on the other track, apparently waiting for an oppor- tunity to cross, another train came along and injured them. It was held that the obstruction was not the proximate cause of the injury: Brown v. Wabash &c. R. Co., 20 Mo. App. 222. "* Peru &c.- R. Co. v. Hasket, 10 Ind. 409; s. c. 71 Am. Dec. 335; Ohio &c. R. Co. V. Cole, 41 Ind. 331; Lafferty v. Hannibal &c. R. Co., 44 Mo. 291; Schertz v. Indianapolis &c. R. Co., 107 111. 577. See also Louis- ville &c. R. Co. V. Smith, 58 Ind. 575 ; Baltimore &c. R. Co. v. Thomas, 60 Ind. 107; Croy v. Louisville &c. R. Co., 97 Ind. 126; Knight v. New York &c. R. Co., 99 N. Y. 25; Holder V. Chicago &c. R. Co., 11 Lea (Tenn.) 176; Seibert v. Missouri &c. R. Co., 72 Mo. 565. 119 1 Thomp. Neg.] proximate and remote cause. ning of a railway train, are too remote to be allowed by the law, except where given by express statute ; since, as we shall see, injuries of this kind to human beings, do not, in the view of most courts, form the basis of civil actions except where they result in physica,l injury, — ^^^ as in the case where a fright causes a pregnant woman to miscarry.^^* § 118. Contributory Negligence of the Owner of the Animals. — On the question of contributory negligence of the owner of an animal, it has been held that the fact that on the morning of the day of the killing of an animal on a railroad track crossing, the owner saw the animal in an open lane a half a mile from the railway, without en- deavoring to prevent it straying upon the track, towards which it was turned, is too remote to be the proximate cause of the injury, so as to make the defense of contributory negligence available.^" Nor would the fact that the animals were allowed to run at large, contrary to a statute, exonerate the railroad company, unless it could show that this fact was a proximate cause of the injury to them.'-^^ § 119. In the Case of Collisions at Railway Crossings. — The fail- ure to ring the bell or blow the whistle of an approaching train at a railroad crossing is not the proximate cause of the death of a person at the crossing from being struck by such train, where he knew of its approach before entering upon the track; but his own negligence is the proximate cause.^^® But the failure of a railroad company to give proper and timely signals of the approach of a train at a cross- ing, by reason of which the driver of a horse and wagon, after dili- gently looking and listening for the train, was induced to drive upon the track, was held the proximate cause of the death of the horse, which was fatally injured while running away after the driver had abandoned it to escape a seemingly imminent danger from the train, which he discovered after he made the attempt to cross.^*" The neg- ligence of a railroad company in permitting cars to stand across a highway for more than the lawful time is not the proximate cause of an injury to one whose foot is crushed while attempting to get over '^^^Post, §§ 155-157. accident, not the proximate cause ™But see post, § 156. of an Injury received by one who "' Orcutt v. Pacific &c. R. Co., 85 drove on the right of way at a pri- Cal. 291; s. c. 24 Pac. Rep. 661. vate crossing, through her horse ^=» Orcutt V. Pacific &c. R. Co., 85 taking fright at the train: Louls- Cal. 291; s. c. 24 Pac. Rep. 661. villa &c. R. Co. v. Survant, 44 S. "W. ™ McDonald v. International & G. Rep. 88; s. c. 19 Ky. L. Rep. 1576 N. R. Co., 86 Tex. 1; s. c. 22 S. W. (not oft. rep.). Rep. 939, rev'g 20 S. W. Rep. 847; "" Quigley v. Delaware &c. R. Co., 21 S. W. Rep. 774. The failure to 142 Pa. St. 388; s. c. 21 Atl. Rep. sound the whistle at a puMic cross- 827; 28 W. N. C. 225; 48 Phila. Leg. ing a mile from the place of an Int. 405. 120 ILLUSTKATIONS OF THESE DOCTRINES. [2(1 Ed. the cars, on account of the starting of the train.^*^ In the opinion of another court the obstructing of a railroad crossing by a train, and the consequent detention of a traveller with a horse, wishing to cross, do not make the railroad company liable for injuries caused by the fright of the horse, at the approach of a second train on the defend- ant's road."^ But this case seems to have been wrongly decided; since the approach of the second train was not the intervention of an independent, responsible agency, but was another act of the same person, the defendant. The wrongful obstruction of a highway by a stalled train was not deemed the proximate cause of an injury to a pedestrian from falling over a stone lying across the gutter, as she was attempting to cross the street for the purpose of passing around the train. ^^^ But personal injuries caused by fright to a horse from the escaping steam of an engine left standing in a street for an un- reasonably long time have been held to be the proximate result of the railroad company^s negligence in delaying the engine.^** § 120. Collisions at Railway Crossings Continued. — The negli- gence of a railroad company with respect to the condition of a high- way crossing is not the proximate cause of injuries received at an- other crossing made by the local authorities because of the defective condition of the former one.^*° So, where a railroad crossing was obstructed by cars of a railroad company, and a traveller undertook to drive his cart across the track at a dangerous place, and the cart tipped over, killing him, it was held that the negligence of the com- '" Hudson V. Wabash & W. R. Co., such an obstruction deemed the 101 Mo. 13; 14 S. W. Rep. 15; re- proximate cause of injury to trav- versing s. c. 32 Mo. App. 668. ellers from insult and terrifying '" Stanton v. Louisville &c. R. Co., misconduct of drunken passengers 91 Ala. 382; s. c. 8 South. Rep. 798. on the train, nor of another injury Compare Barkley v. Missouri &c. R. received by them after passing the Co., 96 Mo. 367. track, in jumping from their buggy '" Enochs v. Pittsburgh &c. R. Co., in fear of being turned over, when 145 Ind. 635; s. c. 5 Am. & Eng. Rail, on a rough road in the dark, they Cas. (N. S.) 349; 44 N. E. Rep. 658. having been belated by the delay: The unlawful obstructing of a high- Shields v. Louisville &c. R. Co., 27 way by a train, not deemed the L. R. A. 680; s. c. 16 Ky. L. Rep. proximate cause of an injury to a 849; 29 S. W. Rep. 978. Such a waiting traveller whose horse took wrongful obstruction of the high- fright by the passage of a train on way not deemed the proximate the track of another compaay, 70 cause of an injury to a waiting trav- feet back: Laible v. New York &c. eller through his horse becoming R. Co., 13 App. Div. 574; s. c. 43 frightened by another passing train N. Y. Supp. 1003. Nor is such a while he is so detained: Selleck v. wrongful obstruction of the high- Lake Shore &c. R. Co., 58 Mich. 195. way the proximate cause of the '** Andrews v. Mason City &c. R. killing of a traveller by an approach- Co., 77 Iowa 669; s. c. 42 N. W. Rep. ing train on an adjoining track: 513. Dubois V. New York &c. R. Co., 88 ""Hill v. Railway Co., 31 S. C. Hun (N. Y.) 10; 68 N. Y. St. Rep. 393; s. c. 5 L. R. A. 349; 39 Am. & 158; 34 N. Y. Supp. 279. Nor was Eng. R. Cas. 607; 10 S. E. Rep. 91. 121 1 Thomp. Neg.] proximate and remote cause. pany was not the proximate cause of the accident.^*" The unlawful rate of speed of a train may well be regarded by a jury as the prox- imate cause of a collision at a crossing, when, the view being ob- structed and no signal given, and the circumstances being such that if the train had been going only at a lawful rate of speed, the traveller at the crossing would have passed over in safety before it had ar- rived; and it is not error to refuse an instruction to the jury.^*^ § 121. In the Case of Other Injuries Connected with the Running of Railway Trains. — Defendant company contracted with another company to ship coal to the latter company over a side track, to be con- structed and maintained in proper order by the latter company. In ^" Jackson v. Nashville &c. R. Co., 13 Lea (Tenn.) 491; s. c. 49 Am. Rep. 663. For analogies to this de- cision, see the following cases cited in the opinion of the court: Tisdaler V. Norton, 8 Mete. (Mass.) 388; Hyde V. Jamaica, 27 Vt. 443, 458; Day v. Grossman, 1 Hun (N. Y.) 570; s. c. 4 Thomp. & C. (N. Y.) 122; Jackson V. Greene County, 76 N. C. 282; Farnham v. Concord, 2 N. H. 392. "' Winstanley v. Chicago &c. R. Co., 72 Wis. 375; s. c. 39 N. W. Rep. 856. But the excessive speed of a railroad train in approaching a pub- lic crossing, and failure. to blow the whistle as required by statute, were held not to be the proximate cause of the death of the driver of a wagon approaching such crossing, where the mule drawing it, upon finding the crossing obstructed by another train, swerved aside and ran par- allel with the road for 150 yards, and then, going ahead of the ap- proaching train, attempted to cross in front of it at a private crossing, and the collision then ensued, and those in charge of the train did all they could to stop, after discovering that the mule was running away. Georgia &c. R. Co. v. Williams, 93 Ga. 253; s. c. 18 S. B. Rep. 825. The defective condition of a gate at a railroad crossing not deemed the proximate cause of an injury to a boy, who saw an approaching train after passing the gate, but neverthe- less, attempted to cross in front of it: Baltimore &c. R. Co. v. Ander- son, 75 Fed. Rep. 811; s. c. 22 C. C. A. 415; 37 Ohio L. J. 54; 43 U. S. App. 673. Failure to give warning of the approach of a fast train at a crossing, near a station, which strikes and kills a woman and hurls her body against a man standing on the platform of the station, not deemed the proximate cause of an injury to the latter, making the company liable to him; since de- fendant could not reasonably have foreseen it : Wood v. Pennsylvania R. Co.. 177 Pa. St. 306; s. c. 35 Atl. R^, 699. Right of a traveller to recover damages where his team became frightened and shied, because an en- gine and its pilot were on a cross- ing, whereby he was thrown into a hole in the crossing: International &c. R. Co. V. Douglas (Tex. Civ. App.), 27 S. W. Rep. 793; writ of er- ror denied in 87 Tex. 297; s. c. 28 S. W. Rep. 271. That the absence of a flagman at a crossing where he ought to have been stationed, may be the proximate cause of an injury suf3- tained by a person attempting to cross, although he did not hear the coming train or the signals given by gong or bell: see Kowalski v. Chicago &c. R. Co., 84 Fed. Rep. 586. Failure to give statutory signals when train approaches crossing, at which horse of traveller takes fright, when not deemed proximate cause of accident: Illinois &c. R. Co. V. Mizell, 100 Ky. 235; s. c. 18 Ky. L. Rep. 738; 6 Am. & Eng. R. Cas. (N. S.) 337; 38 S. W. Rep. 5. When negligence of locomotive en- gineer, steam, &c., deemed proxi- mate cause of frightening traveller's horse near, although another person sprang suddenly in front of horse: Belt V. San Antonio &c. R. Co., 37 S. W. Rep. 362 (no off. rep.). 122 ILLUSTRATIONS OF THESE DOCTRINES. [2d Ed. running the cars on the side track, through some alleged defect in it, the cars ran over and upon the plaintiff's barge waiting at the end of the track to receive the coal. It was held that the running of the cars was the proximate cause of the injury to the barge, and not the defect in the track. The reason was that, although there may have been a negligent defect in the track, yet "the causal connection be- tween the first act of negligence and the injury, was broken by the intervention of an act of a responsible party, which latter act is, in law, regarded as the sole cause of the injury."^** The running an engine at a greater speed than permitted by a town ordinance is not negligence conclusively entitling an injured person to recover, unless it appeared that the negligent breach of duty imposed by the ordi- nance was the direct and proximate cause of the injury complained of, that no negligence of the plaintiff contributed thereto, and that the injury would not have occurred but for the violation of the duty.^*" But it is to be carefully noted that in some jurisdictions it would have to be alleged and proved that no negligence of the plain- tiff contributed to the injury. The failure to give signal for start- ing a train is not the proximate cause of injury to one, received by falling beside the track while the train is in motion, but who was not in the way of the cars when they started, and who did not go in their way or get near them through any ignorance that they were going to start or were in motion.^ ^° Thus, running a train through a town at a speed in excess of that prescribed by ordinance is not a proximate cause of the death of a boy who is killed in attempting to catch on the train for the purpose of enjoying a free ride through the town, so as to render the company liable therefor.^ ^^ It has been held that the act of an engineer in leaving an engine in a dangerous position in charge of an inexperienced fireman may be the proximate cause both of an act by the fireman in putting the engine in motion, and of an injury to the conductor resulting therefrom.^^^ A railway train left "'Fawcett v. Railway Co., 24 W. and that it could not, therefore, be Va. 755, 759. See ante, § 54, et seq. regarded as an independent, inter- '*" Philadelphia &c. R. Co. v. Steb- vening agency, for which the rail- bing, 62 Md. 504. road company was not responsible. """Barkley v. Missouri &c. R. Co., Circumstances under 96 Mo. 367; s. c. 9 S. W. Rep. 793. which the act of a division road- '" Western R. Co. of Ala. v. Mutch, master in removing the brake-staffs 97 Ala. 194; s. c. 54 Am. & Bng. R. of heavily loaded freight cars, be- Cas. 107; 36 Cent. L. J. 176; 11 cause of which they commence mov- South. Rep. 894. ing down grade, was deemed the '*' Mexican &c. R. Co. v. Mussette, proximate cause of the death of an 7 Tex. Civ. App. 169; s. c. 24 S. W. engineer killed by such cars. Rep. 520; afi'd in 86 Tex. 708; s. c. although subsequently a conductor 24 L. R. A. 642; 26 S. W. Rep. 1075. negligently opened a switch to give It was reasoned that the act of the more space to check the movement fireman, if the engineer had been at of the cars, and they were thereby his post, would have been harmless, allowed to run upon the track on 123 1 Thomp. Neg.] proximate and remote cause. the track in consequence of a defect therein. The engineer, in the act of reversing his engine, was injured. It was held that the defect in the track was the proximate cause of his injury. ^°° § 122. In the Case of Collisions Between Travellers and Street Cars. — A street ear track ran along the highway. A person was driv- ing upon the track, when a car approached him. The presence of an- other wagon prevented him from turning from the track, and he came into collision with the car. The presence of the other wagon was not the proximate cause of the accident.^°* One court has well reasoned that the negligence of a street railroad company is the prox- imate cause of an injury, where it knowingly places in operation upon the public street, a car, which can not be properly controlled because the appliances provided for that purpose are out of repair, where an injury is occasioned by such defective appliances, the motorman be- ing unable to stop the car with them and thereby avoid the effect of the contributory negligence of the deceased.^ ^' Article III. In Various Other Cases. Section 125. In case of the spread of fires. 126. Spread of fires continued- 127. In case of injuries to or upon vessels. 128. In case of injuries to or by es- caping or straying animals. 129. In case of injuries from explo- sives. 130. In case of injuries from water. 131. In case of injuries caused by assaulting or frightening per- Section sons, thereby impelling them to do the particular injury. 132. In case of death or injury re- sulting from vending poison- ous drug with harmless label. 133. In case of injuries to children. 134. In case of injuries committed by children, through means provided by the negligence of others. which the accident occurred. Brown- ing V. Wabash &c. R. Co., 124 Mo. 55; s. c. 24 S. W. Rep. 731, and 27 S. W. Rep. 644. Circumstances un- der which the failure of a conductor of a repair train, during a period of wash-outs, to stop at a station where the train had been signaled to stop for the purpose of giving to the conductor information of the dan- gerous condition of a bridge ahead of the train, was deemed the proxi- mate cause of the injury received by the engineer of the train in it has been held to be negli- gence for a night watchman to approach a place of known danger in the dark, without relighting his lamp, which has become extin- guished."^ So, where the plaintiff, while walking on a sidewalk five feet in width, there being sufficient light, and her eyesight being such as enabled her to discern the limits of the walk, stepped off into a ditch and was injured, it was held that she could not recover."" In like manner, one who, knowing that a pile of shavings forty feet high, with a precipitous face, is partially undermined, and is top heavy from the accumulation of ice, negligently undermines it so as to "'Butterfield v. Forrester, 11 East citations in the margin not bearing 60; s. c. (in full) 2 Thomp. Neg. it out, to the effect that "if a man 1st ed. 1104; Lake Shore &c. R. Co. lays logs of wood across a highway, V. Pinchin, 112 Ind. 592; Gosport v. though a person with care may ride Evans, 112 Ind. 133; Richmond v. safely by, yet if, by means thereof, MulhoUand, 116 Ind. 173. my horse stumble and throw me, a This section is cited in § 1225. I may bring an action." " Butterfleld v. Forrester, 11 East "^ Ingram v. Lehigh Coal &c. Co., 60; s. c. (in full) 2 Thomp. Neg. 1st 148 Pa. St. 177; s. c. 1 Pa. Adv. R. ed. p. 1104. The objection of coun- 544; 23 Atl. Rep. 1001. set to this direction was grounded " McLaury v. McGregor, 54 Iowa on a passage in Buller N. P. 26, the 717. 182 GENERAL DOCTRINES. [2(1 Ed. cause it to fall upon him, can not recover damages for injuries due to the fall of the shavings upon him."^ § 188. Clualifications of the Rule as to Recklessly Encountering Known Dangers. — This doctrine will be misapplied unless several qualifications are attended to. Mere knowledge that a danger exists does not, in all cases, impute negligence to a person who voluntarily encoimters it. He may be under the necessity of proceeding, and the case may be such that a person exercising ordinary care might suppose that he could successfully encounter it. We shall see fre- quent illustrations of this principle in the case where travellers are injured through known defects in a highway, bridge, or sidewalk."* Thus, where, through the negligence of a landlord who stood under the duty of repairing the demised premises, the plaster above a pas- sageway became dangerous an liable to fall, to the knowledge of the plaintiff, who was his tenant, this did not preclude the plaintiff from recovering damages for an injury to his minor child through the falling of the plaster. "This," said Bradley, J., "was her only pas- sageway into the street and from it in going to the apartment in which she dwelt. She had been out and was returning when the accident occurred. The impaired condition of the ceiling was not in the' line of her vision as she proceeded through the hall, but to see it she would be required to look upward rather than forward."^*' The Court also quoted from the language of another case, to the effect that "it would be an extremely harsh rule to require the plaintiff who was called so often to pass this place to have kept her mind invari- ably fixed upon its character, and to. make her responsible for aji omission to exercise incessant vigilance in passing over it."'"* Again, the exigency of the particular case may justify a person in thrusting himself into a danger where, under ordinary circumstances, his con- duct would be justly deemed grossly negligent and reckless, — as where he exposes himself to a known danger in an effort to save the life of another.''^ Again, in a case of immediate and sudden danger, not produced by the neglect of the party injured, but such as might over- bear the judgment of a reasonably prudent man, a mistake made in "O'Donnell v. Patten, 117 Mo. 13; 677; Jeffrey v. Keokuk &c. R. Co., s. c. 22 S. W. Rep. 903. 56 Iowa 546. »» Richmond v. Mulholland, 116 "'DoUard v. Roberts, 130 N. Y. Ind. 173; s. c. 18 N. E. Rep. 832; 269, 274; s. c. 14 L. R. A. 238; 41 Altoona v. Lotz, 114 Pa. St. 238; N. Y. St. Rep. 253; 29 N. B. Rep. s. c. 60 Am. Rep. 346; Nave v. Flack, 104. 90 Ind. 205; s. c. 46 Am. Rep. 205; "Palmer v. Bearing, 93 N. Y. 7, Murphy v. Indianapolis, 83 Ind. 76; 11. See also Weed v. Ballston Spa, Huntington v. Breen, 77 Ind. 29; 76 N. Y. 329; Bassett v. Fish, 75 Lake Shore &c. R. Co. v. Pinchin, N. Y. 303, 307. 112 Ind. 592, 595; s. c. 13 N. B. Rep. '^ Post, §§ 198, 199. 183 1 Thomp. Neg.] contributory negligence. easting himself upon a danger will not be imputed to him as contrib- utory negligence," — especially where the appearance of danger which overbore his faculties was produced by the negligence of the defend- ant.'^ The true meaning of the rule, therefore, is that, in order to impute contributory negligence to a person exposing himself to a dan- ger, he must (1) knowingly, or with negligent ignorance, (2) volun- tarily, and (3) unnecessarily, expose himself to it.'* § 189. What if the Danger might have been Seen, and Avoided if Seen. — For stronger reasons, contributory negligence will not in all cases be imputed to a person who receives an injury from a danger which might have been seen, and avoided if seen; because the nature of his duties, or the surrounding circumstances, may be such as to distract his attention to other objects.'" § 190. Whether Negligence not to Anticipate the Negligence or Misconduct of Another.* — There is a general presumption of law that all men act rightly, until the contrary appears. This presumption is expressed in the maxim. Omnia praesumuntur esse rite acta. An examination of the cases where it is brought into use will generally disclose that it is applied to official action; but it has been also ap- plied to the action of private individuals.'* If the fullest play were " Stevenson v. Chicago &c. R. Co., Mo. App. Rep. 229 ; Duggan v. 18 Fed. Rep. 493; s. c. 5 McCrary Champlln, 75 Miss. 441; s. c. 1 Miss. (U. S.) 634. Dec. (No. 14) 119; 23 South. Rep. '^Post, § 197. 179; Oliver v. State (Tex. Crim. "Clements v. Louisiana Electric App.), 41 S. W. Rep. 623 (not to be bight Co., 44 La. An. 692; s. c. 16 rep.); rev'g on rehearing 40 S. W. L. R. A. 43; 11 South. Rep. 51. Rep. 273; rev'd on rehearing in 42 '" Greenleaf V. Dubuque &c. R. Co., S. W. Rep. 554; Cowles v. Reaves, 33 Iowa 52; Baldwin v. St. Louis 109 N. C. 417; s. c. 13 S. E. Rep. 930; &c. R. Co., 63 Iowa 210. American Exch. Bank v. Gregg, 37 a This section Is cited in §§ 192, 111. App. 425; s. c. rev'd in 138 111. 751, 1307, 1327. 598; s. c. 28 ^f. B. Rep. 839; Kidd v. "The following list of cases deal- . Venable, 111 N. C. 535; s. c. 16 S. B. ing with the maxim omnia- .praesu- Rep. 317; Com. v. Coy, 157 Mass. muntur esse rite acta is subjoined 200; s. c. 32 N. E. Rep. 4; Conti- for the convenience of the reader nental Nat. Bank v. Strauss, 137 N. who may wish to trace it through Y. 148; s. c. 50 N. Y. St. Rep. 208; its various applications: Louisville 32 N E. Rep. 1066; Smith v. Higby, Trust Co. V. Louisjille &c. Co., 43 12 Pa. Co. Ct. 423; West Jersey U. S. App. 550; s. c. 75 Fed. Rep. Traction Co. v. Camden Horse R. 433; State V. Nield, 4 Kan. App. 626; Co., 53 N. J. Eq. 163; s. c. 35 Atl. s c. 45- Pac. Rep. 623; Columbia Rep. 49; Re Pelican Saw Mill &c. Ave. &c.Co. V. Prison Commissioner, Co., 48 La. An. 711; 19 South. Rep. 92 Fed. Rep. 801; Boynton v. Roe, 6C6; Malloy v. Bruden, 88 N. C. 309; 114 Mich. 401; s. c. 4 Det. L. N. 635; Nugent v. Stark, 34 La. An. 630; 7 Am. & Bng. Corp. Cas. (N. S.) State v. Barksdale, 50 La. An. 55; 606; 42 N.W. Rep. 257; Safe Deposit s. c. 22 South. Rep. 966; State v. Bank v. Schuylkill County, 190 Pa. Simpson, 91 Me. 77; s. c. 39 Atl. St. 188; s. c. 42 Atl. Rep. 539; Rice Rep. 286; Meibaum v. Brennan, V. McClure, 74 Mq. App. 383; s. c. 1 49 La. An. 580; s. c. 21 South. 184 GENERAL DOCTRINES. [2d Ed. given to the maxim, it would follow that, as every man is presumed to act rightly, every man will be justified in law in acting on the pre- sumption that every other man will act rightly, unless the surround- ing circumstances convey to him some indication to the contrary. In this relation, the maxim has a wide, but not an universal application. In many situations a man is justified in law in acting on the pre- sumption that other men have acted lawfully, rightly, carefully and properly, until he is in some way admonished to the contrary.'^ For example, a workman employed to load, ride on, and unload an ele- vator, is not necessarily negligent in assuming that the elevator is safe.^' So, a passenger, in the absence of any circumstances to raise suspicion to the contrary, may rightfully assume that the carrier has exercised the care which the law requires of him in respect of the safety of his vehicle, roadway, servants, and the rules governing his business. The rule has been said to be that everyone has a right to presume that others owing a special duty to guard against danger, will perform that duty.''® But this, as we shall presently see, can not be affirmed as the rule applicable to all cases. But we may well acquiesce in the somewhat quaint statement of doctrine that it is not contributory negligence not to look out for danger where there is no reason to apprehend any.'" But if, according to ordinary human ex- Rep. 853; Packard v. Old Colony R. Co., 168 Mass. 92; s. c. 6 Am. & Eng. Corp. Cas. (N. S.) 586; 46 N. E. Rep. 433; McGale v. McGale, 18 R. I. 683; s. c. 29 Atl. Rep. 967; Reg. v. The Minnie, 4 Can. Exch. 151; Palm- atier v. McKibbon, 21 Ont. App. Rep. 441; Ensor v. Smith, 57 Mo. App. 584; Franklin County Corns, v. Ranck, 9 Ohio C. C. 301; s. c. 2 Ohio Dec. 269; Monger v. Kelly, 115 N. C. 294; s. c. 20 S. E. Rep. 374; State V. Holmes, 12 Wash. 169; s. c. 40 Pac. Rep. 735; Somerset v. Glasten- bury, 61 Vt. 449; s. c. 17 Atl. Rep. 748; Peyton v. Carr, 85 Va. 456; s. c. 13 Va. L. Reg. 164; 7 S. E. Rep. 848; Devereux v. McMahon, 102 N. C. 284; s. c. 9 S. E. Rep. 635; Mink V. Shaffer, 124 Pa. St. 280; s. c. 46 Phila. Leg. Int. 240; 19 Pitts. L. J. (N. S.) 455; 23 W. N. C. 348; 16 Atl. Rep. 805; Kane v. State, 70 Md. 546; s. c. 17 Atl. Rep. 557; Byrne v. Carson, 70 Mo. App. 126; Deaver v. Jones, 114 N. C. 649; s. c. 19 S. E. Rep. 637; Ashley v. Presque Isle County, 8 C. C. A. 455; s. c. 60 Fed. Rep. 55; Williams v. Mil- waukee &c. Asso. (Wis.), 48 N. E. Rep. 665; Harris v. Knight, L. R. 15 P. & D. 170; Sims v. Sims, 121 N. C. 297; s. c. 28 S. E. Rep. 407; 40 L. R. A. 737; 61 Am. St. Rep. 665; Bangor v. Orneville, 90 Me. 217; s. c. 38 Atl. 153; Diwer v. Hall, 21 Misc. 452; s. c. 47 N. Y. Supp. 630; rev'g 46 N. Y. Supp. 533; s. c. 20 Misc. 677; Fidelity &c. Co. v. Eick- hoff, 63 Minn. 170; s. c. 30 L. R. A. 586; 65 N. W. Rep. 351; Reilly v. Poerschke, 19 Misc. 612; s. c. 44 N. Y. Supp. 422; aff'g 18 Misc. 750; State v. Engeman, 54 N. J. L. 247; s. c. 23 Atl. Rep. 676 ; Com. v. Smith, 4 Pa. Super. Ct. 1, 15; s. c. 14 Lane. L Rev. 159, 167; Com. v. Fogleman, 3 Super. Ct. (Pa.) 566; s. c. 40 W. N. C. 17; Standish v. Babcock, 52 N. J. Eq. 327; s. c. 29 Atl. Rep. 327; Rensens v. Lawson, 91 Va. 226; s. c. 21 S. E. Rep. 347. "Helfenstein v. Medart, 136 Mo. 595. " Mulvey v. Rhode Island Locomo- tive Works, 14 R. I. 204. " Grand Rapids &c. R. Co. v. Mar- tin, 41 Mich. 667; s. c. 3 N. W. Rep. 173; Engel v. Smith, 82 Mich. 1, 7; s. c. 46 N. W. Rep. 21. ""Engel v. Smith, 82 Mich. 1, 7; s. c. 46 N. W. Rep. 21. 185 1 Thomp. Neg.] contributory negligence. perience, there is reason to apprehend danger, whether it may pro- ceed from the wrong act of another or not, then the law will not justify a person in resting his safety on the presumption that others will act rightly, and in going. forward and taking his chances. This is well illustrated by the care required of a traveller in approaching a railway at a highway grade crossing. He will be justified, under most circumstances, in acting on the presumption that, if a train is approaching, the trainmen will give the statutory or proper signal by ringing the bell or sounding the steam whistle; but the law will not exonerate him from the consequences of contributory negligence un- less he makes a fair use of his faculties before entering upon the track, to ascertain whether a train is approaching.*^ This obligation is stronger where the person injured is not, at the time of receiving the injury, exercising the rights of a traveller on the highway, but is trespassing upon a railway track by using it as a footway. Speaking with reference to such a case, it was said by a Judge of distinction: "A person, while grossly negligent himself, has no legal right to count on due diligence by others; but is bound to anticipate that others, like he has done, may fail in diligence, and must guard not only against negligence on their part, which he might discover in time to avoid the consequences, but also against the ordinary danger of there being negligence which he might not discover until too late."«2 § 191. Circumstances under which it is not Negligence not to Anticipate the Negligence or Misconduct of Another.^ — ISTotwith- standing the foregoing, both reason and authority show that under many situations a person will not be chargeable with contributory negligence for not anticipating that another person will violate the law in a given particular, and for not providing against such possible violations of it.*^ Neither is a plaintiff always imputable with con- tributory negligence in not anticipating that the defendant would act negligently in a given particular, and in not providing against the consequences of such anticipated negligence.** Thus, a person may lawfully walk on the track of a street-railroad^ it being laid in the *'A subject discussed in the next Co., 44 Cal. 414; Cleveland &c. R. volume. Co. v. Terry, 8 Ohio St. 570; Robin- ^'^ Central R. &c. Co. v. Smith, 78 son v. Western Pacific R. Co., 48 G^. 694, 700; s. c. 3 S. E. Rep. 397; Cal. 409. opinion by Bleckley, J. ■" Harpell v. Curtis, 1 E. D. Smith a This section is cited in § 192. (N. Y.) 78; Brown v. Lynn, 31 Pa. ■^Kellogg V. Chicago &c. R. Co., 26 St. 510; Fraler v. Sears Water Co., Wis. 223; Fox v. Sackett, 10 Allen 12 Cal. 555; Donohue v. St. Louis (Mass.) 535; Baker v. Pendergast, &c. R. Co., 91 Mo. 357; s. c. 6 West. 8 Cent. L. J. 334; Damour v. Lyons, Rep. 851; International &c. R. Co. 44 Iowa 276 ; Shea v. Potrero &c. R. v. Gray, 65 Tex. 32. 186 GENERAL DOCTRINES. [2d Ed. public highway. While so walking, he is not required to abandon the track, ordinarily, to avoid possible injuries which may result from the carelessness of the servants of the company ; and if he is thus injured while so walking, the fact that he might have walked on the side of the track is not of itself contributory negligence on his part.*^ So, where A. owns a mining-claim below that of B., and in consequence of the negligent manner in which B. has constructed his dam, it breaks away, injuring the property of A., contributory negligence will be no answer to an action by A.; for A. is not bound to take precautions against the possible breaking away of B.'s dam through B.'s negli- gence.*" So, A. moors his boat below the point on the river where B. has moored his barges. Through the negligent manner in which B.'s barges are thus moored, they break away, and striking A.'s boat, sink it. The place where A. moored his boat was a safe place but for B.'s negligence. A. may recover damages of B. 87 § 192. Want of Care in Person Injured Produced Act of Defend- ant.* — The rule that the plaintiff is not chargeable with negligence for not anticipating the negligence or wrong of the defendant'^ finds another expression in the statement that the defendant can not im- pute to the plaintiff a want of care or vigilance which has been pro- duced by the defendant's own negligence. The rule is said to be that if the defendant, by his own act, has thrown the plaintiff off his guard and given him reason to believe that vigilance was not needed, the lack of such vigilance on the part of the plaintiff is no bar to his action.*" This principle may obviously be applied in a great variety of situations. Wherever A., by his conduct, induces B. to think that he. A., is proceeding with due care, when the contrary is true, and B. receives an injury which he would have avoided if he had not been lulled into a feeling of security by this assurance, B. has a case for damages against A. Thus, a traveller approaches a railway-crossing at a point where the view is obstructed. He stops and listens for the customary signal, and not hearing it, drives upon the track, is run over by a train, and injured. He may recover damages of the rail- road company. Having exercised what care he might, under the cir- cumstances, the company will not be heard to say that be did wrong in accepting their failure to blow the whistle as evidence that no train «=Shea v. Potrero &c. R. Co., 44 ''Ante, §§ 190, 191. Cal. 414; Robinson v. Western Pa- *» Kinney v. Folkerts, 78 Mich. clfic R. Co., 48 Cal. 409. 687, 697; s. c. 44 N. W. Rep. 152; *" Fraler v. Sears Water Co., 12 Pennsylvania R. Co. v. Ogier, 35 Pa. Cal. 555. St. 60; Ernst v. Hudson River R. " Brown v. Lynn, 31 Pa. St. 510. Co., 35 N. Y. 9, 28; Totten v. Phipps, a This section Is cited in §§ 80, 52 N. Y. 354; Morrissey v. Ferry 442. Co., 47 Mo. 521. 187 1 Thomp. Neg.] contributoky negligence. was near.^" So, where one obeys the instructions or directions of an- other, upon whose assurance he has a right to rely, he can not be charged with contributory negligence at the instance of that other, in an action against him for injuries received in attempting to follow out the instructions.®^ The rule is, of course, the same where the in- structions or directions are given by an agent or servant of the de- fendant, provided he is charged with real or apparent authority to give them, — as, for instance, where the conductor of a street rail- way car gives directions to a passenger to shift his position in the car in a certain manner, and in doing so, the passenger is injured."^ § 193. An Analogous Rule in Case of Fraud. — Since by generaliz- ing legal principles we acquire a better understanding of them, it may be useful to state here that this principle extends into the law of fraud. A party to a contract is not to be charged with fault because he did not suspect fraud and institute inquiries where all seemed fair and honest.®' If A. has knowledge upon a subject of which B. may well be ignorant, and knowingly makes false statements regarding it, upon which B. relies to his injury, it does not lie in the mouth of A. to say that B. was negligent in taking his word without instituting inquiries as to the truth of his statements.®* It is therefore, in gen- eral, no answer to an action to rescind a contract on the ground of fraudulent misrepresentations or concealments of material facts, at least where the question arises as between the original parties to the contract, that the plaintiff might have learned the truth by making use of the means of knowledge which he had offered him."" § 194. What if Placed in Sudden Danger by his Own Fault. — It has been said that this rule applies only where the person injured was placed in a position of sudden peril without his own fault.^^ For " Pennsylvania R. Co. v. Ogier, 35 "' New Brunswick &c. R. Co. v. Pa. St. 60. To the same effect is Muggeridge, 1 Drew. & Sm. 363, 382; Phila. &c. R. Co. v. Hagan, 47 Pa. Directors v. Kisch, L. R. 2 H. L. 99 ; St. 244; Chicago &c. R. Co. v. Trip- Upton v. Eglehart, 3 Dill. (U. S.) lett, 38 III. 482, 488; Ernst v. Hudson 496, 500. River R. Co., 35 N. Y. 28. "■ Noyes v. Southern &c. R. Co. "Chicago &c. R. Co. v. Winters, (Cal.), 24 Pac. Rep. 927; s. c. on 175 111. 293; s. c. 51 N. E. Rep. 901; subsequent hearing, 92 Cal. 285; s. aff'g 65 111. App. 435. c. 28 Pac. Rep. 288; Aikin v. Penn- '^Terre Haute Electric R. Co. v. sylvania R. Co., 130 Pa. St. 380; Lauer, 21 Ind. App. 466; s. c. 1 Repr. s. c. 20 Pitts. L. J. (N. S.) 182; 25 576; 52 N. E. Rep. 703; 5 Am. Neg. W. N. C. 13; 18 Atl. Rep. 619; 41 Rep. 581. Am. & Eng. Rail. Cas. 571; 47 Phila. "'Waterhouse v. Jamieson, L. R. Leg. Int. 84; Chicago &c. R. Co. v. 2 H. L. Sc. App. 29; Foreman v. Halsey, 133 111. 248; s. c. 23 N. E. Bigelow, 4 Cliff. (U. S.) 508; s. c. Rep. 1028; Baltzer v. Chicago &c. 7 Cent. L. J. 430. R. Co., 83 Wis. 459; s. c. 53 N. W. " Eaton V. Winnie, 20 Mich. 156. Rep. 885; Berg v. Milwaukee, 83 188 GENERAL BOCTRINES. [2d Ed. example, a man voluntarily goes upon a railroad track at a highway grade crossing, without making a fair use of his faculties to see whether a train is approaching, and, when upon the track, he sud- denly discovers a train hard upon him. In the terror and fright pro- duced by the discovery, he acts erroneously and is killed by the train, whereas if he had acted properly, he might have escaped injury. Thus, acting erroneously is contributory negligence, because his own negligence brought about the perilous situation. It follows that, in such a state of facts, an instruction that confines the attention of the jury to the question whether he acted as an ordinarily prudent man might have acted under the circumstances, after discovering his peril, is erroneous, and is calculated to mislead the jury."^ § 195. Acting Erroneously in Presence of Imminent Peril not Pro- duced by his Own Fault.^ — One who is placed in the apparent situa- tion of sudden or imminent danger, without his own fault, is not, as matter of law, guilty of contributory negligence, because he acts upon appearances of danger which had not in fact existed, or fails to make the most judicious choice between the expedients which the situation presents for seeking his safety, or because he might have escaped injury had he acted differently."* The obligation resting upon him to exercise ordinary care does not extend so far as to re- quire him to act with all the care and caution which might be reason- ably required of him under ordinary circumstances.'" The rule has accordingly been stated thus: "If a man has got himself, without negligence, into a position of danger, he is not responsible if he makes a mistake of judgment in getting out. A man placed under such cir- cumstances, if he uses his judgment honestly, is not responsible, al- though he might have done better if he had acted differently." ^'"' A better statement of this rule is that where one, without his own fault, is, through the negligence of another, put in such apparent danger as to cause him terror, loss of self-possession, and bewilderment, and, as a natural result thereof, he, in attempting to escape, puts himself in "Wis. 599; s. c. 53 N. W. Rep. 890; Cas. (N. S.) 141; rev'g 40 S. W. Richfield V. Michigan R. Co., 110 Rep. 849; Nellson v. Hillside Coal Mich. 406; s. c. 3 Det. L. N. 425; &c. Co., 168 Pa. St. 256; s. c. 31 Atl. 68 N. W. Rep. 218. Rep. 1091; Edgerton v. O'Neil, 4 "Chicago &c. R. Co. v. Halsey, Kan. App. 73; s. c. 46 Pac. Rep. 206; 133 111. 248; s. c. 23 N. E. Rep. 1028. International &c. R. Co. v. Sein, 11 Similarly, see, Baltzer v. Chicago Tex. Civ. App. 386; s. c. 33 S. W. &c. R. Co., 83 Wis. 459. Rep. 558. a This section is cited In §§ 26, 64. "' Hagerstrom v. West Chicago »» Pennsylvania R. Co. v. Snyder, Street R. Co., 67 111. App. 63; s. c. 55 Ohio St. 342; s. c. 45 N. E. Rep. 1 Chic. L. J. Wkly. 676. 559; 36 Ohio L. J. 351; Missouri &c. ""Syllabus of Pennsylvania R. Co. R. Co. V. Rogers, 91 Tex. 52, 59; s. c. v. Werner, 89 Pa. St. 59. 40 S. W. Rep. 956; 8 Am. & Eng. R. 189 1 Thomp. Neg.] contributory negligence. a more dangerous position, he is not, as matter of law, chargeable with contributory negligence that will prevent him from recovering dam- ages for the injury. ^"^ The rule is specially applicable to children of immature years and imperfect experience ;^"^ and on principle it must be peculiarly applicable in the case of women, very old men, and adults, who lack experience in the particular situation, or whose fac- ultiefs are imperfect. The doctrine was thus expressed in what has, to some extent, been regarded as a leading case on the subject : "Per- sons under immineney of peril may not be required to exercise all the presence of mind and care of a prudent, careful man, with impend- ing danger. The law makes allowance, and leaves the circumstances to the jury, to find if the party acted rashly and under an undue ap- prehension of the danger." ^"^ § 196. Voluntarily Placing One's Self in a Position Where One Loses Self-Control.^ — We shall see,^°* that if a person, through an im- pulse of sudden terror produced by the negligence of an-other, loses self-control, and acts erroneously, and is thereby hurt, whereas, if he had not acted erroneously, he would not have been hurt, — ^his error is not imputed to him as contributory negligence. An antithetical statement of doctrine is that "a man can not voluntarily place him- self in a condition whereby he loses such control of his brain and muscles as a man of ordinary prudence and caution in the full pos- session of his faculties would exercise, and, by such loss of control contribute to an injury to himself, and then require that one ignorant of his condition recompense him therefor."^"^ This rule applies to cases of voluntary intoxication, elsewhere considered.^"" It must be plain that it applies to any other case where, through his own mis- conduct or voluntary act, the person injured loses his self-control and thereby brings the injury upon himself, which, although proceeding "'Mark v. St. Paul &c. R. Co., 30 92 Cal. 285; s. c. 24 Pac. Rep. 927; Minn.. 493. s. c. on subsequent hearing, 28 Pac. "^ Neilson v. Hillside Coal &c. Co., Rep. 288 ; Remer v. Long Island R. 168 Pa. St. 256; s. c. 31 Atl. Rep. Co., 48 Hun (N. Y.) 352; s. c. aff'd 1091. 113 N. Y. 669; Schultz v. Chicago ™ Palena &c. R. Co. v. Yarwood, &c. R. Co., 44 Wis. 638 ;■ Gumz v. 17 111. 509, 521. This expression is Chicago &c. R. Co., 52 Wis. 672, 679; imperfect, in so far as it ahsolves Stackman v. Chicago &c. R. Co., 80 the person from acting with the Wis. 428, 433; South Covington &c. care which might he required of a Street R. Co. v. Ware, 84 Ky. 267. prudent, careful man, under like cir- a This section is cited in section cumstances. In general affirmation 48. of the doctrine, see the following "*Posi, § 197. cases : North Chicago Street R. Co. "= Strand v. Chicago &c. R. Co., V. Louis, 35 111. App. 477 (reversed 67 Mich. 380, 385; s. c. 11 West. Rep. on other grounds in 27 N. E. Rep. 538; 34 N. W. Rep. 712. 451); Noyes v. Southern. &c. R. Co., ^"^ Post, §§ 340, 341. 190 GENERAL DOCTRINES. [2d Ed. in part from the negligence of another person, he might have escaped if he had retained his self-control.^"^ § 197. Acting Erroneously under Implnse of Fear Produced by Defendant's Negligence.^ — If A. acts erroneously under the influence of a sudden impulse of fear, or in consequence of a sudden appearance of danger, caused by the negligence of B., A. may recover damages of B., although if A. had not so acted he would not have been hurt.^"^ In all such cases the true test is to consider whether, under all the circumstances of the case, and in view of the appearance of danger which surrounded him and of the suddenness of the surprise and the want of time for deliberation, the person injured acted rashly, or as a reasonably prudent person might have acted under such circum- stances;^"" and this is necessarily a question of fact for a jury.^""^ Take, for example, a case where the defendant, who occupied a ware- house, directed his servants to throw a bag of wool out of an upper window, to save the trouble of lowering it with a crane. Before dropping the bag, one of his servants called out, warning passengers. The plaintiff looked up, saw the wool coming, and ran across the yard, thinking he would have time to escape. The wool fell on him, and injured him. It was held proper to tell the jury, that if the plaintiff lost his presence of mind by the act of the defendant, and, in the confusion produced by the situation in which he found himself, ^"In line with this principle, it lin, 143 111. 409; s. c. 32 N. E. Rep. has been well held that a railroad 258; Clarke v. Pennsylvania Co., 132 company is not absolved from re- Ind. 1S9; s. c. 17 L. R. A. 811; 31 sponsibility for an injury proceed- N. B. Rep. 258; Vallo v. United ing from the negligence of its em- States Exp. Co., 147 Pa. St. 404; ploygs in creating a danger, from s. c. 14 L. R. A. 743; 1 Pa. Adv. the fact that, after discovering the R. 260; 29 W. N. C. 423; 23 danger, they acted with reasonable Atl. Rep. 594; Harris v. Clinton, prudence to avert it: Grand Rapids 64 Mich. 447; s. c. 7 West. Rep. 670; &c. R. Co. V. Ellison, 117 Ind. 234; South Covington &c. Street R. Co. s. c. 20 N. E. Rep. 135. v. Ware, 84 Ky. 267; Holzab v. New a This section is cited in §§ 80, .Orleans &c. R. Co., 38 La. An. 185; 164, 171, 175, 188, 196, 255, 1272. Dutzi v. Geisel, 23 Mo. App. 676, 683; ^°'Ante, §§ 80, 81; Ingalls v. Bills, Remer v. Long Island R. Co., 48 Hun 9 Mete. (Mass.) 1; Wesley City (N. Y.) 352; 15 N. Y. St. Rep. 884; Coal Co. V. Healer, 84 111. 126; Sears Hawkins v. Johnson, 105 Ind. 29; V. Dennis, 105 Mass. 310; Card v. s. c. 2 West. Rep. 293; Richmond &c. Elsworth, 65 Me. 547; Coulter v. R. Co. v. Farmer, 97 Ala. 141; s. c. Express Co., 56 N. Y. 585; Stokes v. 12 So. Rep. 86; Siegrist v. Arnot, 10 Saltonstall, 13 Pet. 181. See Wilson Mo. App. 197. V. Susquehanna Turnpike Co., 21 ^"Lincoln Rapid Transit Co. v. Barb. 68; Buel v. New York &c. R. Nichols, 37 Neb. 332; s. c. 20 L. R. A. Co., 31 N. Y. 314; Frink v. Potter, 853; 55 N. W. Rep. 872. 17 111. 406, 410 ; Lund v. Tyngsboro, ""a Galena &c. R. Co. v. Yarwood, 11 Cush. (Mass.) 563; Brooks v. 17 111. 509; Noyes v. Southern &c. R. Petersham. 16 Gray (Mass.) 181; Co., 92 Cal. 285; Remer v. Long Cook V. Parham, 24 Ala. 21, 34; Island R. Co., 48 Hun (N. Y.) 352; Woolley V. Scovell, 3 Man. & R. 105; s. c. on former appeal, 3-S Hue (N Collins V. Davidson, 19 Fed. Rep. 83; Y.) 253. Dunham Towing & W. Co. v. Dande- 191 1 Thomp. Neg.] contributory negligence. had run into danger, they should give him a verdict. It was held that this direction was right.^^" In another case, the governor-belt of a small engine, driving a planing-maehine, ran ofE, increasing the speed, and the plaintiff, in endeavoring to save the machine, threw the belt from the driving-wheel to a loose pulley, further increasing the speed, so that the machine broke and injured him. It was held that the plaintiff, by his error of judgment, was not guilty of such contributory negligence as necessarily prevented recovery, if his mas- ter had knovnngly employed defective machinery. ^'^^ § 198. Acting Erroneously in Attempting to Eescue Another from Imminent Peril. ^ — This subject has been considered in a former chap- ter.^ ^^ It may be added generally that, whilst it may be negligence barring a recovery of damages for a person voluntarily to place him- self in a position of danger in order to save property merely, yet the law has so high a regard for human life that it will not impute negli- gence to an effort to preserve it, unless made under circumstances con- stituting rashness in the judgment of prudent persons; and whether the conduct of. a person injured in such an attempt was rash will be a question for the jury.^'-^ Thus, a person sees a child about to be run over by a locomotive; he rushes upon the track, seizes the child, and throws him from his perilous position, but in so doing loses his own life. Unless the act was, under the circumstances, rash and reckless, of which the jury are to judge, his administratrix may recover dam- ages.^^* Speaking with reference to a case where the plaintiff was hurt by being struck by a railway locomotive while endeavoring to rescue a child which had fallen on the railway track in front of the approaching train, Bradbury, J., in giving the opinion of the Su- preme Court of Ohio, said: "There was but a fraction of a minute "»Woolley V. Scovell, 3 Man. & 43 N. Y. 503 (affirming s. c. 57 Barb. Ry. 105. 555); Linnelian v. Sampson, 126 "' Schall V. Cole, 107 Pa. St. 1. Mass. 506 ; s. c. 8 Cent. L. J. 442 ; Evidence tliat a locomotive engineer Peyton v. Texas &c. R. Co., 41 La. discoveredi another engine approach- An. 861; s. c. 41 Am. & Eng. R. Cas. Ing upon the same track at a dis- 550; 6 South. Rep. 690; Pennsyl- tance of 200 feet, and that the con- vania Co. v. Langendorf, 48 Ohio ductor and fireman jumped to avoid St. 316; s. c. 26 Ohio L. J. 29; 44 a collision apparently Imminent, Alb. L. J. 190; 28 N. E. Rep. 172; justifies a verdict that he was free CondifE v. Kansas City &c. R.. Co., from fault in also jumping, although 45 Kan. 256; s. c. 25 Pac. Rep. 562; no collision in fact occurred: Gross Donahoe v. Wabash &c. R. Co., 83 V. Pennsylvania &c. R. Co., 62 Hun Mo. 560; Clark v. Famous Shoe &c. (N. Y.) 619; 42 N. Y. St. Rep. 808; Co., 16 Mo. App. 463. s. c. 16 N. Y. Supp. 616. "* Eckert v. Long Island R. Co., a This section is cited in §§ 64, 100, 43 N. Y. 503; Linnehan v. Sampson, 138, 188. 126 Mass. 506; Pennsylvania R. Co. "^Amte, § 138. v. Langendorf, 48 Ohio St. 316. "* Eckert v. Long Island R. Co., 192 GENERAL DOCTRINES. [2d Ed. in which to resolve to act, or action would come too late. Under these circumstances^ it would be unreasonable to require a deliberate judgment from one in a position to afford relief. To require one so situated to stop and weigh the danger to himself, of an attempt to rescue another, and compare it with that overhanging the person to be rescued, would be in effect to deny the right of rescue altogether, if the danger was imminent. The attendant circumstances must be re- garded; the alarm, the excitement and confusion usually present on such occasions, the uncertainty as to the proper move to be made, the promptness required, and the liability to mistake as to what is best to be done, suggest that much latitude of judgment should be allowed to those who are thus farced by the strongest dictates of humanity to decide and act in sudden emergencies. And the doctrine that one who, under those or similar circumstances, springs to the rescue of another, thereby encountering even great danger to himself, is guilty of negligence per se, is neither supported by principle nor author- ity."^" § 199. Injuries Incurred in Attempting to Save Persons or Prop- erty Imperiled by the Negligence of Another.^ — One who, acting with reasonable prudence, voluntarily exposes himself to danger for the purpose of protecting the person of another, may recover for the consequent injuries which he receives, from the persons whose negli- gence or other wrong caused the injury to himself and the danger to the person whom he sought to rescue or aid.^^* The same has been held to be true of one who, under similar conditions, is injured in an attempt to protect his own property.^ ^^ This doctrine is not confined to cases where a person exposes himself to peril in order to save his own property: he may receive the injuries while attempting to save the property of another, and yet may recover damages from the party inflicting the injury. Nor is this statement of doctrine to be con- fined to cases where the person injured was owing a legal duty to at- tempt to save the property of another, — as in the case of a servant where his master's property is in peril. A moral obligation and right so to act will justify him and relieve him from the imputation of contributory negligence.^ ^^ A man, se«ing a child upon a railroad "' Pennsylvania Co. v. Langendorf , Central Railroad &c. v. Crosby, 74 48 Ohio St. 316, 322; s. c. 26 Ohio Ga. 737; Eckert v. Long Island R. L. J. 29; 44 Alb. L. J. 190; 28 N. B. Co., 43 N. Y. 502. Rep. 172. "' Wasmer v. Delaware &c. R. Co., a This section Is cited in §§ 64, 100, 80 N. Y. 212, 218; Rexter v. Starin, 138, 188. 73 N. Y. 601. "' Linnehan v. Sampson, 126 Mass. "' Liming v. Illinois &c. R. Co., 506; Cottrill v. Chicago &c. R. Co., 81 Iowa 246, 253. 47 Wis. 634; s. c. 3 N. W. Rep. 376; VOL. 1 THOMP. NEG. — 13 i.VO 1 Thomp. Neg.] contributory negligence. track and a train approaching, ran upon the track and rescued the child, but in so doing, was struck by the engine and fatally injured. This was not contributory negligence, as a matter of law, and a judg- ment awarding damages against- the railroad company, which was driving its train at an unlawful rate of speed, was affirmed. It was stated by Grover, J., who wrote the opinion of the Court, that, had the deceased gone upon the track, under the same circumstances, to save property, his conduct would have been grossly negligent. But "under the circumstances in which the deceased was placed, it was not wrong- ful in him to make every effort in his power to rescue the child com- patible with a reasonable regard for his own safety. It was his duty to exercise his judgment as to whether he could probably save the child without serious injury to himself. If, from appearances, he be- lieved that he could, it was not negligence to make an attempt to do so, although believing that possibly he might fail and receive an in- jury himself. He had no time for deliberation. He must act in- stantly, if at all, and a moment's delay would have been fatal to the child. 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. For a person, engaged in his ordinary affairs, or in the mere protection of property, knowingly and voluntarily to place him- self in a position where he is likely to receive a serious injury, is neg- ligence, which will preclude a recovery for an injury so received; but when the exposure is for the purpose of saving life, it is not wrongful, and therefore not negligent, unless such as to be regarded either rash or reckless."^^" So, the plaintiff, while going along a street in a city, heard a cry for help, and, turning a corner, saw a man on the ground being gored by a bull, and went near the bull, but did not attempt to assist the man because he was afraid of the bull. The bull thereupon turned upon him and injured him. It was held that the question of the contributory negligence of the plaintiff was for the jury.^^" The Court quoted with approval the language of the Court of Appeals of New York in a leading case, "that 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 con- stitute rashness in the judgment of prudent persons."^^^ And a Massachusetts Court has said : "The law does not require cowardice or absolute inaction in such a state of things. Neither does it re- >"Eckert v. Long Island R. Co., "^Bckert v. Long Island R. Co., 43 N. y. 502, 505. 43 N. Y. 502. ™ Linnehan v. Sampson, 126 Mass. 506. 194 GENERAL DOCTRINES. [2d Ed. quire, in such an emergency, that the plaintifE should have acted with entire self-possession, or that he should have taken the wisest and most prudent course, with a view to his own self-preservation, that could have been taken. He certainly may take some risk upon him- self, short of mere rashness and recklessness."^^^ For the same rea- sons, contributory negligence can not be imputed, as a matter of law, to a locomotive engineer who, after seeing a signal to stop, remains at his post grasping the throttle valve, until a collision occurs in which he is killed. In so holding, the Court, speaking through Orton, J., after paying a deserved tribute to the profession of locomotive en- gineers, said: "To hold as matter of law in this case that the de- ceased was guilty of a want of ordinary care and prudence, as the engineer in charge of the locomotive and of the train, in not jumping off at this crisis and abandoning his engine, from the mere apprehen- sion of uncertain danger, would make a legal precedent very danger- ous to the railway service in life and property."^ ^^ In short, the law imposes upon every person who has been injured, either in his person or his property, by the negligence or misconduct of another, to do what he reasonably may, in order to keep down the damages, or to prevent their enhancement. But the obligation is not absolute; it is relative; it extends no further than to require him to do what a rea- sonable man, guided by considerations of the obligations which rest upon every member of a civilized society might be expected to do under the circumstances. For example, he can not be expected to do what he can not do for lack of financial ability. Thus, a person whose land has been sold at a judicial sale because of the negligence of a telegraph company in delivering a telegram directing a post- ponement of the sale, is bound as against the company, to use due diligence to have the sale set aside, and thus reduce his loss ; but he is relieved from such duty when it is beyond his power to perform it for want of financial ability or otherwise.^ ^* '" Linnehan v. Sampson, 126 Mass. makes the mistake of selecting a 506, 511. route which causes him more dis- '^ Cottrill V. Chicago &c. R. Co., comfort than another route that 47 Wis. 634, 639. Compare Central might have been selected, in order Railroad v. Crosby, 74 Ga. 737, to reach his destination, he will where, on similar facts, a similar nevertheless be entitled to recover result was reached. damages: Texas &c. R. Co. v. Arm- >^ Western Union Tel. Co. v. Wof- strong (Tex. Civ. App.), 41 S. W. ford (Tex. Civ. App.), 42 S. W. Rep. Rep. 833 (no off. rep.). Nor— at 119 (no off. rep.). So, it is the duty least in the view of one court — is of a passenger, upon discovering a passenger on a railway train, who that a railway ticket agent has sold has entered into a contract for his him a ticket to the wrong place, to carriage, which is violated by his use ordinary care to prevent a ejection from the train, under the greater injury to him than the situ- duty of lessening his damages by ation renders unavoidable; but if he paying additional fare to avoid such uses such care, and in so doing removal, although he may he abla 195 1 Thomp. Neg.] contributory negligknce. § 200. Injuries Received while Getting over Inconvenience Pro- duced by Wrongful Act of Defendant. — If an inconvenience is so great that it is reasonable to get rid of it by an act not obviously dan- gerous, and executed without carelessness, the person causing the in- convenience by his negligence will be liable for any injury that may result from an attempt so to avoid such inconvenience.^^" On the other hand, if a person without fault on his part, gets into a situa- tion of peril, created by the negligence of another, and thereafter in endeavoring to extricate himself from such situation, acts rashly and imprudently, where the apparent danger was not immediate, and there was time for deliberation, his contributory negligence, subse- quent in point of time to the negligence of the other party, and nearer the accident, will be the proximate cause of his hurt, and he will not be allowed to recover damages. To illustrate. A., in driving a team with a load of hay, got into a dangerous position on a defective bridge, and remained on the load of hay and endeavored to drive over the defect, and thus was thrown down and injured. It was held that he could not recover damages from the town which was negligent in allowing the bridge to remain out of repair.^ ^® But whether in such a case the plaintiff exercised ordinary care, is generally a question of fact for a jury.^^^ § 201. Contribntory Negligence wMcb Enhances the Damages Merely.* — The doctrine has been recognized that an act or omission which, being contributory negligence, will defeat the action, must be to do so: Gulf &c. R. Co. v. Cope- tiff had made three unsuccessful land, 17 Tex. Civ. App. 55, 59; s. c. attempts to shut a car door, which 42 S. W. Rep. 239. Though, as we constantly flew open through negli- shall see when dealing with the title, gence of the defendant. In thef Carriers of Passengers, there are fourth attempt he was injured. The courts which have been so subser- court held that, as the inconvenience vient to railroad influences as to that the plaintiff would have suf- require him to pay the fare unlaw- fered If he had not shut the door fully demanded, and then to seek was slight, and the peril incurred indemnity from the company — no in his attempt to shut it considera- matter at the cost of what time, ble, the injury he suffered was not money, or inconvenience — and if the the necessary or natural result of company refuses to recognize his the company's negligence, and that right, remitting him in an action of they were therefore not liable for recovery the small additional fare such injury. But the rule as thus which he may have been obliged expressed by Brett, J., was adopted wrongfully to pay. and applied in Lee v. Nixey, supra, "° Adams v. Lancashire &c. R. Co., which is squarely in point. L. R. 4 C. P. 739; s. c. 20 L. T. Rep. ^Fisher v. Franfelin, 89 Wis. 42; (N. S.) 850; reaffirmed in Lee v. s. c. 61 N. W. Rep. 80. Nixey, 63 L. T. Rep. 285; s. c. 8 Rail. ^ Lee v. Nixey, 63 L. T. Rep. 285; & Corp. L. J. 489. In Adams v. s. c. 8 Rail. & Corp. L. J. 489. Lancashire &c. R. Co., supra, the Ian- a This section is cited in §§ 65, 66, guage of the text occurs oMter in 247, 251, 910. the opinion of Brett, J. The plain- 196 GENERAL DOCTRINES. [2d Ed. an act or omission which contributes to the happening of the event which caused the injury; and that an act or omission which merely increases or adds to the extent of the loss will not have the effect of defeating the action, though it may have the effect of diminishing the damages which can be recovered.^^* This doctrine was stated by Agnew, C. J., in the following language: "The contributory negli- gence which prevents recovery for an injury is that which co-operates in causing the injury, — some act or omission, concurring with the act or omission of the other party to produce the injury (not the loss merely), and without which the injury would not have happened. A negligence which has no operation in causing the injury, but which merely adds to the damage resulting, is no bar to the action, though it will detract from the damages as a whole." It was also said that, in such a case, the jury are to apportion the damages between the plaintiff and the defendant as best they can under the evidence.^ ^® Another statement of the doctrine, — and one which is illustrated by the next section, — is "that where the consequences of the defendant's negligence have subsequently been aggravated by the want of ordinary care, or by the negligence of the plaintiff, this may go in mitigation of damages ; but it can not defeat the plaintiff's right to recover for the wrongs for which the defendant is responsible; or, in other words, that negligence on the part of the plaintiff, tending merely to in- crease the damages suffered by him, is not a bar to an action as to the damage resulting from the defendant's negligence before the con- tribution by the plaintiff."^ ^" Thus, damages caused by a fire set out through the negligence of the defendant, but increased through the negligence of the plaintiff, may be recovered up to the time when the negligence of the plaintiff began to affect the result ; hence in such a case it is error to instruct the jury to the effect that, if the plaintiff, when he discovered the fire, failed to do what a prudent man would have done, it defeated his right of recovery for the previous, as well as for the subsequent damages.^^^ So, although a man may recover from a gas light company damages sustained through the escape of the gas of the company into his cellar, without his fault, — ^yet he can not recover for damages so sustained by him after the time when, in the exercise of reasonable care on his part, he might have given notice to the defendants of the presence of the gas, or procured an- other place of residence.^^^ So, a man may recover damages from a '^Smithwick v. Hall &c. Co., 59 "" Stebblns v. Central Vt. R. Co., Conn. 261; s. c. 12 L. R. A. 279, 285; 54 Vt. 464, 468. 21 Atl. Rep. 924. "' Stebbins v. Central Vt. R. Co., '^ Gould V. McKenna, 86 Pa. St. 54 Vt. 464. 297, 303. "^ Hunt v. Lowell Gas Light Co., 1 Allen (Mass.) 343. 197 1 Thomp. Neg.J contkibutoky negligence. company distributing gas by means of pipes, for an injury sustained by him through the contamination of his well by the escape of the gas, but not for injuries to his horses by allowing them to drink of the water after he knew that it had become so contaminated.^^^ So, a man suing a surgeon for malpractice, may recover such damages as necessarily flow from the act of the surgeon, but not such damages as flowed from the negligence of his other attendants for whose conduct the surgeon was not responsible, — not because their contributory neg- ligence is imputable to him, but because the surgeon is answerable for his own negligence merely, and not for that of others.^ ^* § 202. Subsequent Negligence of the Person Injured in Treating Ms Wound.^ — This subject has been considered in a former chap- ter.^ ^^ Undoubtedly the person injured is bound to use ordinary care in treating the injury, and can not recover from the author of the injury enhanced damages growing out of his own want of ordi- nary care in procuring medical or surgical aid to treat it.^'^ In other words, if he neglects to use such means to effect a recovery as an ordinarily prudent person would use under like circumstances, he can not recover damages for any aggravation of his injury, growing out of such neglect. Yet if, under the effect of pain produced by those injuries, he neglects to do that which is wisest and most prudent to effect his recovery, this will not, as matter of law, be imputed to him as contributory negligence. ^^^ But his neglect in this regard bears only upon the extent, and not upon his right of recovery for the injuries.^^^ So, the failure of the injured person to comply with the directions put on employes to treat him, does not necessarily preclude his right to recover damages for the injury occurring to him, even after such failure; though he can not recover for such of the subsequent damages as were occasioned by his neglect to follow the prescribed treatment.^'' It is his duty to use ordinary care, un- der the circumstances, in employing surgeons, nurses, etc. ; but, hav- ing done so, the law does not make him an insurer that they will com- mit no mistakes in treating him. If, exercising such care, he employs a surgeon, nurse, or other assistant, who is incompetent, and who, in consequence of such incompetency, makes mistakes, and enhances i'^ Sherman v. Fall River Iron 104 Ind. 409; s. c. 1 West. Rep. 879. Works Co., 2 Allen (Mass.) 524. '"Gulf &c. R. Co. v. McMannewitz, ^ Wilmot V. Howard, 39 Vt. 447. 70 Tex. 73 ; s. c. 8 S. W. Rep. 66. a This section is cited in §§ 453, '''Taylor v. Springfield, 61 Mo. 633, 941. App. 263. ""Ante, § 66. "'Keyes v. Cedar Falls, 107 Iowa •=" Louisville &c. R. Co. v. Falvey, 509; s. c. 78 N. W. Rep. 227. See 198 GENEEAL DOCTRINES. [2d Ed. the damages which he has suffered, this will not necessarily be im- puted to him as contributory negligence; but whether he has exer- cised reasonable care will generally be a question for the Jury under all the circumstances of the case.^*" If he employs a reputable phy- sician and surgeon, and follows his directions as to the treatment of the injury, until such physician or surgeon discharges himself from the case, the patient can not be charged with negligence in causing an aggravation of the injury, because the result of it was more severe than was anticipated.^*^ The fact that the. person injured is Jiimself a physician and surgeon may enable him to make a better selection of his medical attendant, and is therefore a circumstance to be consid- ered by the jury on the question whether he has exercised reasonable care under the circumstances; but it does not make him answerable for the success of the treatment determined upon by the physician or surgeon selected by him, or require him to treat his own case.^*^ ISTegligent injuries have been sometimes aggravated by delay in call- ing in the services of a physician and surgeon. In such a case it seems that it would generally be a question for the jury whether such delay was the result of negligence or of a want of ordinary care under all the circumstances of the case. Where a woman had re- also Goshen v. England, 119 Ind. 368; s. c. 5 L. R. A. 253; 21 N. E. Rep. 977; Stebbins v. Central Ver- mont R. Co., 54 Vt. 464. "» Sandwich v. Dolan, 34 111. App. 199; Pullman Palace Car Co. v. Bluhm, 109 111. 20; Elgin v. Riordan, 21 111. App. 600; Tuttle v. Farming- ton, 58 N. H. 13; Boynton v. Somers- worth, B8 N. H. 321. While this last case was decided in conformity with the above rule, the reasoning of the learned judge who wrote the opinion of the court can not be as- sented to without qualification. He said: "The degree of care and pru- dence required to be exercised by the plaintiff in the selection of a physician and surgeon, and the means used for his recovery and cure from his injuries, are the same as a traveller upon the highway is required to exercise in the selection of his horse, harness, carriage, and manner of driving. He is required to use ordinary care and prudence in all these particulars — such care and prudence as a man can gen- erally exercise." It would clearly mislead a jury to instruct them in this language. It can not be true that a person whose body may be lacerated and whose brain may be contused, is required to exercise the same care in selecting his physician and surgeon as, being well, he would be required to exercise in selecting a horse and driver to carry him along the highway. His wounds may be of sifch a character as to preclude him from exercising any care at all, and all the care in the premises may perforce be committed to others; and for the negligence of those others he will not, on a prin- ciple already considered (ante, §75), be answerable. There is no ground for any compromising between the two situations, and to attempt to make it is a gross aberration. The true idea is that, the law will re- quire him to exercise all the care which he reasonably could exercise under the circumstances, especially in view of the nature and extent of his injuries, and of the means at his disposal for procuring the necessary and proper assistance. '"Strudgeon v. Sand Beach, 107 Mich. 496; s. c. 2 Det. L. N. 749; 65 N. W. Rep. 616. '■^Boynton v. Somersworth, 58 N. H. 321. 199 1 Thomp. Neg.] contributory negligence. ceived injuries by reason of tlie defendant's negligence, it was held that contributory negligence was not necessarily to be imputed to her, because she failed to call in a physician at once, where she suffered but little pain at first, and had no reason to suppose that her injuries were serious.^*'' So, where an injury resulted in the loss of an eye, it was held that the delay of nearly two days before consulting a physician presented a question of contributory negligence for the de- termination of the jury, in the absence of evidence that the delay aggravated the injury, or that the eye could have been saved.^** § 203. Contributory Negligence of Plaintiff in Actions for Mal- practice. — In an action by a patient against his physician, surgeon or nurse, to recover damages, growing out of malpractice of the lat- ter, if it appears that the patient has contributed to bring about the injury for which he sues, through his disregard of the instructions of the defendant, he can not recover.^*^ In other words, it is the duty of the patient to co-operate, as far as he reasonably can, having re- gard to his situation and the extent of his injuries, with his physi- cian, surgeon or nurse, in effecting a cure. But if he is insane, for example, the performance of this duty will, of course, be excused.'^*" Upon the question whether the patient has failed in this duty, or has culpably disobeyed the instructions of his surgeon, the informa- tion given by the surgeon to the patient as to the nature of his malady is a circumstance that ought to be taken into consideration.^*^ If a physician has injured his patient through negligence, the refusal of the patient, or of his custodians, to allow an experiment by another physician to repair the injury has been held not to be imputed to the patient as contributory negligence, unless they had reasonable assur- ances of the success of the experiment.^ *^ On principle, the negli- gence of the custodians of the injured person — such as the parents in case of a child — will not be imputed to him, he being in no fault him- self; but if this negligence is the proximate cause of the injury, and the negligence or malpractice of the physician or surgeon is not, then, of course, there can be no recovery.^ *° "^•Texas &c. R. Co. v. Neal, 33 S. Candless v. McWha, 22 Pa. St. 261. W. Rep. 693 (no off. rep.). '« People V. New York Hospital, 1" Morrison v. Long Island R. Co., 3 Abb. N. C. (N. Y.) 229. 3 App. Div. (N. Y.) 205; s. c. 73 N. '"Geiselman v. Scott, 25 Obio St. Y. St. Rep. 732; 38 N. Y. Supp. 393. 86. '"Potter V. Warner, 91 Pa. St. "« Chamberlain v. Morgan, 68 Pa. 362; s. c. 36 Am. Rep. 668; Hibbard St. 168. V. Thompson, 109 Mass. 286; Geisel- '"Potter v. Warner, 91 Pa. St. man v. Scott, 25 Ohio St. 86; Mc- 362; s. c. 36 Am. Rep. 668. 200 GENERAL DOCTRINES. [2d Ed. § 204. TTnlawful Act Directly Contributing to the Injury. — We have already seen that a violation of a statute or valid municipal ordi- nance, intended for the public safety, is deemed in law negligence per se, and that, if such violation contributes directly to the injury, the wrong-doer is liable. ^'^ By parity of reasoning it may be con- cluded, as a general proposition, that a violation by the person in- jured of such a statute or ordinance will be deemed negligence per se on his part, and if it directly contributes to the injury, it will pre- clude him from recovering damages.^ ^^ Thus, where the plaintiff sued the defendant for damages arising from a collision between the horse and sleigh of the defendant on the highway, and the horse and sleigh of the plaintiff, — it was held error to refuse an instruction to the effect that if the jury should find that the plaintiff was violating an ordinance limiting the speed of persons driving on the street to six miles an hour, such unlawful act, if it directly contributed to the plaintiff's injury, was a conclusive bar to the plaintiff's recovery, and not merely evidence of contributory negligence; and, on the other hand, to charge them that it was merely a circumstance for them to consider, in connection with all the other circumstances of the case, in determining whether the plaintiff was guilty of contributory neg- ligence, was error.^^^ Applying the same doctrine, another court has held that a plaintiff, suing to recover for an injury received from the defendant while sitting in his cab, from the negligent driving of his- wagon against the cab, can not recover, if it is made to appear that he was, at the time, violating an ordinance by waiting in the street without placing his vehicle and horse lengthwise with the street, and as near to the sidewalk as possible, and that this illegal conduct con- tributed to the injury.^ ^^ But discrimination is required in apply- ing this rule. In many cases the violation of law by the person in- jured is collateral to the accident; in other cases it does not contribute directly to it, but remotely. Thus, in the case first above stated, we can easily concur with the result reached by the court, because the conduct of the two actors, the plaintiff and the defendant, was con- current in point of time. But in the second case, the simple fact that the plaintiff, in violation of an ordinance, was standing his hack across the street, surely did not justify the defendant in driving upon it, and breaking it. The mere fact that a person unlawfully exposes his person or property to a negligent injury, does not justify another ^^Ante, § 10. S. c. 21 Atl. Rep. 925; 11 L. R. A. 33. "' Young V. Chicago &c. R. Co., 100 '=' Newcomb v. Boston Protective Iowa 357; s. c. 69 N. W. Rep. 682; 6 Department, 146 Mass. 596, 600; s. c. Am. & Eng. Rail. Cas. (N. S.) 231. 6 New Eng. Rep. 282. ""Broschart v. Tuttle, 59 Conn. 1; 201 1 Thomp. Neg.] contributory negligence. person in subsequently injuring it, when he might have avoided doinjj so by the exercise of ordinary care;^°* and the rule equally applies in the case where one unlawfully exposes his person to an injury.^'" § 205, What if Person Injured is a Trespasser. — This leads us to the rule that the fact that A. trespasses upon the land of B. does not place A. so far outside the pale of the law that B. may, with impunity, inilict a wanton injury upon him. "It is true that, as a general rule, a trespasser who is injured by a pit or dangerous place in the land of another, excavated or permitted for a lawful purpose, can not recover damages therefor, because the owner of the land owes no duty to him, and therefore is not negligent as to him; but it is clear that the owner of land can not wantonly injure a trespasser. If he does, he is liable civilly as well as criminally.^ ^° Thus, A. keeps a vicious stag in his pasture. B., trespassing there, is attacked, by the stag, and is injured. The mere fact that B. was a trespasser will not pre- vent him from recovering damages ; but he may fail, on the ground of contributory negligence, if, under all the circumstances, his going into the pasture was a want of ordinary or reasonable care.^'^ § 206. Contributory Negligence no Defense to an Action for a Willful or Wanton Injury.*^ — This brings us to another phase of doc- trine, which is that contributory negligence is no defense to an action for damages for an injury which was reckless, willful, or wanton/^^ however great such negligence may have been.^^^ Thus, contribu- tory negligence in a person, however gross, in getting himself into a dangerous position upon a railway track, will not exempt the rail- way company from liability for an injury willfully and intention- ally inflicted upon him, after knowledge of his dangerous position.^**" On the other hand, if the negligent act or omission of the defendant does not reach the grade of a reckless, willful or wanton injury, the "* Davies v. Mann, 10 Mees. & "W. Pittsburgh &c. R. Co. v. Kelly, 12 545; s. c. 2 Thomp. Neg., 1st ed., Ohio C. C. 341; Ivens v. Cincinnati 1105; ante, §§ 85, 86; post, § 227 &c. R. Co., 103 Ind. 27; 1 West. Rep. et seq. 132; post, § 265. »=" Post, § 246. "^^ Wabash R. Co. v. Speer, 156 111. 1™ Brown v. Lynn, 31 Pa. St. 510. 244 ; s. c. 40 N. E. Rep. 835. '=' Marble v. Ross, 124 Mass. 44; ""Denver &c. R. Co. v. Spencer, 25 s. c. 5 Reporter 596. Colo. 9; s. c. 10 Am. & Eng. R. Cas. a This section is cited in §§ 209, (N. S.) 536; 52 Pac. Rep. 211. It is 210, 247, 264, 265, 276, 383, 418, 1121, scarcely necessary to add that, al- 1325. though contributory negligence is "' Kansas &c. R. Co. v. Whipple, no deiense to an action for a willful 39 Kan. 531; s. c. 18 Pac. Rep. 730; or wanton injury, yet this principle Central R. &c. Co. v. Newman, 94 has no application to a case where Ga. 560; s. c. 21 S. E. Rep. 219; the injury was caused wholly by the 202 GENERAL DOCTRINES. [2(i Ed. contributory negligence of the person injured will be a defense, al- though the negligence of the defendant may be characterized as gross. "^ Even a trespasser may recover for a willful, unlawful, wanton or malicious injury inflicted upon him.^°^ The reason is, that the fact that one person is trespassing upon the property, or against the person of another, authorizes that other to use only so much force as is necessary to prevent the trespass, or effect the arrest of the trespasser. The trespasser does not forfeit his right to im- munity from wanton injuries by reason of his unlawful act. Thus, it has been well held that the rule that a person can not recover damages for an injury produced by the negligence of another, where the negligence of the person injured or killed contributed to the in- jury or death, — has no application where the action is for a wanton injury or killing, — as where the defendant, a policeman, upon a slight provocation, shot and killed the plaintiff's intestate. ^"^ So, under a statute of Kentucky giving damages for the death of another produced by the defendant's "willful neglect," if "willful neglect" on the part of the defendant is established, within the meaning of the statute, the contributory negligence of the person killed is no de- fense.i«* § 207. Further of Willful and Wanton Injuries in Connection with Contributory Negligence. — The books justify the conclusion that mere carelessness or heedlessness may be so gross and reckless as to rise to the grade of willfulness or wantonness, such as will exclude the defense of contributory negligence.^"^ This will often happen where the engineer driving a railway train, sees a person on the track in front of him exposed to imminent danger, under circum- stances where he could easily prevent injury to him by the usual pre- cautions of sounding the steam whistle or checking the speed of his train, or both, and utterly fails so to do. Such misconduct, it has negligence of the person injured : '''- Hector Min. Co. v. Robertson, Jones V. Louisville &c. R. Co., 82 22 Colo. 491; s. c. 45 Pac. Rep. 406; Ky. 610. The principle of the fore- 4 Am. & Eng. Corp. Cas. (N. S.) 349. going text has found expression in "^Kain v. Larkin, 56 Hun (N. Y.) definitions of contributory negli- 79; s. c. 29 N. Y. St. Rep. 643; 9 N. gence to the effect that no one shall Y. Supp. 89. recover damages for an injury not "* Louisville &c. R. Co. v. Brice, purposely or wantonly inflicted, to 84 Ky. 298; s. c. 1 S. W. Rep. 483; which his own negligence contrib- Nance v. Newport News &c. R. Co., uted: Connersville &c. R. Co. v. But- 13 Ky. L. Rep. 554; s. c. 17 S. W. ler (Ind.), 1 West. Rep. 110. Rep. 570 (not to be rep.). "' International &c. R. Co. v. ^'^ Hector Min. Co. v. Robertson, 22 Kuehn, 11 Tex. Civ. App. 21; s. c. Colo. 491; s. c. 45 Pac. Rep. 406; 4 31 S. W. Rep. 322. Am. & Eng. Corp. Cas. 349. 203 1 Thomp. Neg.J contributory negligence. been well held, accruing after the engineer becomes aware of the danger to which the person is exposed, rises to the grade of wanton or reckless conduct, and renders immaterial the inquiry as to the con- tributory negligence of the person in so exposing himself.^®® On the other hand, the mere failure of a locomotive engineer, in charge of a train, after discovering the danger of collision with another train, to use all the means in his power known to skillful engineers, to prevent a collision, does not constitute wanton negligence, unless he was con- scious at the time that he was not using the means which he ought to use to prevent the catastrophe. "If, in good faith, he did what he thought was best, it matters not how far he may have failed in skill, or erred in judgment, or what mere inadvertence or negligence may have caused him to do- or omit what was best not to have been done or omitted, he can not be said to have willfully or wantonly caused the injury."^"^ In other words, the theory of this court is that an in- jury can not be said to be wantonly inflicted so as to obviate the effect of contributory negligence, unless the circumstances and con- ditions known to the person responsible for the act or omission com- plained of, are such as to make it likely or probable that his conduct will result in injury, and he consciously and wantonly does a Avrong- ful act or omits to do a proper and necessary act. "The mere in- tentional omission to perform a duty, or the intentional doing of an act contrary to duty, although such conduct be culpable and result in injury, * * * f^^^g ygpy fg^p short of showing that the injury was intentionally or wantonly inflicted. Unless there was a purpose to inflict the injury, it can not be said to have been intentionally done ; and unless an act is done, or omitted to be done, under cir- cumstances and conditions known to the person, that his conduct is likely to, or probably will, result in injury, and, through reckless in- difference to consequences, he consciously and intentionally does a wrongful act, or omits an act, the injury can not be said to be wan- tonly inflicted.""^ § 208. What is Willful or Wanton Negligence which Benders the Defendant Liable notwithstanding Plaintiff's Contributory Negli- gence.^ — In the case about to be cited, the authorities, so far as they existed in the particular jurisdiction, were reviewed, and the govern- ing principles received a very clear exposition by Mr. Justice Mc- ^«8 Denver &c. R. Co. v. Spencer, 25 "' Memphis &c. R. Co. v. Martin, Colo. 9; s. c. 10 Am. & Eng. R. Cas. 117 Ala. 367, 382; s. c. 23 South. (N. S.) 536; 52 Pac. Rep. 211. Rep. 231. '"Highland Ave. &c. R. Co. v. a This section is cited in §§ 20, Swope, 115 Ala. 287, 306; s. c. 22 208. South. Rep. 174. 204 GENERAL DOCTEINES. [2d Ed. Clellan. His language is too long to quote; but he shows that the willful or wanton negligence which alone, under the theory of that court, renders the defendant liable where the plaintiff's negligence contributes to the result, is something more than mere inadvertence, or ignorance, or unconsciousness of the danger to the plaintiff; but that, in order to impute such negligence to the defendant, the latter must hnow the exposed position of the plaintiff ; in which case a fail- ure to make an attempt to avoid injuring him is something more than mere negligence: it is a willfulness or wantonness which shows an indifference to his fate, and which therefore partakes of the nature of criminality.^*® Such being the nature of what is called "willful negligence" it is a sound and just conclusion that when willful neg- ligence on the part of the defendant is established, the plaintiff is entitled to recover, no matter how gross the negligence of the person killed or injured may have been.^'" On this is formulated the doc- trine that where the injury for which the action is brought is not mere inadvertence, but an aggressive wrong, — an unlawful invasion of the plaintiff's right of personal liberty or security, the doctrine of contributory negligence has no application.^''^ Accordingly it was held that contributory negligence on the part of a person whose land was overflowed by surface water collected upon the land of another, and discharged in an increased volume upon the land of the former, was no defense to an action for damages for the injury. The reason was, that the act was in the nature of a positive, aggressive wrong, a trespass or a nuisance.^ "^ § 209. Contributory Negligence where the Injury has Resulted in Death.^ — A future chapter contains a discussion of statutes giving a right of action for the benefit of surviving relatives for injuries which have resulted in death. For the purposes of the present discussion, it may suffice to say that, with occasional exceptions, no action can be maintained under such a statute where the negligence of the de- ceased contributed to the accident. The rule in actions ujider such '»» Georgia &c. R. Co. v. Lee, 92 ington &c. R. Co., 13 Bush (Ky.) Ala. 262; s. c. 9 Souti. Rep. 230. 636 ; Louisville &c. R. Co. v. Mahony, See also Highland Ave. &c. R. Co. 7 Bush (Ky,) 235. V. Swope, 115 Ala. 287, 306; s. c. 22 "iBeem v. Chestnut, 120 Ind. 390; South. Rep. 174 ; Memphis &c. R. Co. Chicago &c. R. Co. v. Bills, 118 Ind. v. Martin, 117 Ala. 367, 382; s. c. 23 221; Salem v. Goller, 76 Ind. 291; South. Rep. 231. Steinmetz v. Kelly, 72 Ind. 442. ""Eskridge v. Cincinnati &c. R. "^Lebanon v. Twiford, 13 Ind. Co., 89 Ky. 367; s. c. 11 Ky. L. Rep. App. 384; s. c. 41 N. B. Rep. 844. 557; 12 S. W. Rep. 580; 42 Am. & a This section is cited in § 498. Eng. Rail. Cas. 176; Claxton v. Lex- 205 1 Thomp. Neg.j contributory nbgligence. statutes is just the same as though the accident had not resulted in death, and the party injured had himself brought the action.^'^ § 210. Contributory Negligence Where the Negligence of the De- fendant Consists in the Violation of a Statutory Duty. — The general rule is, that where the negligence of the defendant consists in the violation of a statutory duty, and hence is what is called negligence per se, or negligence as matter of law,^'* the contributory negligence of the plaintiff or person killed or injured, appears as a defense to an action for damages, as in other cases.^^^ Thus, a special statute re- lieving a contractor from all liability to the government will not be adjudged to relieve him from the legal effect of his own negligence when he is seeking damages from the United States.^'^^ So, under a statute making a railroad corporation liable for all damages sus- tained by reason of neglect to put up signboards at crossings, one can not recover for an injury sustained by reason of his own negli- gence, and not because of the absence of a signboard. The failure to maintain the signboard is, however, conclusive evidence of negli- gence.^'' So, a failure by a railroad company to comply with a city ordinance requiring certain signals to be given by its trains will not render it liable for injury where the person injured could have ■"Gay V. Winter, 34 Gal. 153; Tucker v. Ghaplin, 2 Car. & Kir. 730; Indianapolis &c. R. Co. v. Stout, 53 Ind. 143, 150; Kuehn v. Missouri &c. R. Co., 10 Tex. Civ. App. 649; 32 S. W. Rep. 88; Cleveland &c. R. Co. V. Crawford, 24 Ohio St. 631; s. c. 15 Am. Rep. 633; Boland v. Missouri R. Co., 36 Mo. 484. The right to rely on contributory negligence as a defense to an action for damages resulting in death, was not taken away by Ky. Const., § 241: Passa- maneck v. Louisville &c. R. Co., 98 Ky. 195; s. c. 32 S. W. Rep. 620; 17 Ky. L. Rep. 763. The syllabus in McGuire v. Vicksburg R. Co., 46 La. An. 1543; s. c. 16 So. Rep. 457, that the contributory negligence of the deceased will not avail as a defense to an action by his parents against a railroad company for his death, where it might have been avoided by the use of reasonable care on the part of those in the train, causing the accident, does not seem to ex- press correctly what the court held. What the court evidently intended was, to put the negligence of the railway company in running over the child, after discovering his ex- 206 posed situation on the track, into the category of reckless or wanton injuries, as well as under the doc- trine of a preceding section {ante, § 206), which cuts ofC the defense of contributory negligence. ™Ante, § 10. ™ Krause v. Morgan, 33 Ohio Leg. News 546; s. c. 40 N. E. Rep. 886; aff'd on other grounds without opinion in 52 Ohio St. 662; Queen V. Dayton Coal &c. Co., 95 Tenn. 458; s. c. 30 L. R. A. 82; 49 Am. St. Rep. 935; 32 S. W. Rep. 460. It has been reasoned that the element of con- tributory negligence does not enter into a case where on the part of defendant there was direct violation of a positive statute: Welty v. Indi- anapolis &c. R. Co., 105 Ind. 55; s. c. 2 West. Rep. 652. But, with the ex- ception of cases where the violation of the statute is willful or wanton, within the meaning of a rule al- ready considered {ante, § 206), no statement of the law could be more delusive. "» Henegan v. United States, 17 Ct. of CI. 273. "'Field V. Chicago &c. R. Co., 14 Fed. Rep. 332. GENERAL DOCTRINES. [2d Ed. avoided it by the exercise of ordinary care.^^^ So, where a statute prohibited the employment of infants in mines, and an infant was nevertheless employed in a mine, and while being there employed was hurt, he could not recover damages if the hurt was due to his own negligence.^ '° Statutes exist abrogating or modifying this rule. Thus, under a Massachusetts statute,^*" it is no defense to an action of tort against a railroad corporation for causing the death of a pas- senger, that the passenger injured was not in the exercise of ordinary care.^*^ A statute exists in Mississippi,^ ^^ prohibiting the making of what are called running, flying, walking, or kicking switches by railroad companies within the limits of a municipality, and making railroad companies liable for any damages inflicted through a viola- tion of the statute "without regard to mere contributory negligence of the party injured." It is held that the contributory negligence intended by this statute, consists in the want of ordinary care on the part of the person killed or injured, with reference to the situation and surroundings, and not the voluntary, deliberate exposure of one's self to injury.^*^ Under a Tennessee statute, prescribing precau- tions to be used by railroad companies to avert injuries, contributory negligence will not defeat a recovery, but will merely operate in mitigation of damages.^^^ On the other hand, the duty of exercising reasonable care to avoid a collision may require one to act in a given way, although, in doing so, he commits a technical violation of a statute or ordinance. In such a case, it may well be concluded, the statute or ordinance was not intended to apply, and is therefore not violated. Thus, the fact that an ordinance prohibited the use of a hand or push cart on a sidewalh, did not prevent the plaintiff from trying to avoid being run over by a rapidly approaching horse and wagon, even at the risk ef violating the ordinance by pushing his cart upon it.^*® § 211. Contributory Negligence under Statutes Imposing Duties upon the Owner of Dangerous Machinery. — Statutes exacting special precautions on the part of the owners of dangerous machinery are generally construed as not abrogating the ordinary rules of contrib- utory negligence, though some exceptions, or partial exceptions, to "'Neier v. Missouri &c. R. Co. Mass. 252. See also Com. v. Boston (Mo.), 4 West. Rep. 597. &c. Railroad, 134 Mass. 211. "•Queen v. Dayton Coal &c. Co., '^^^Miss. Code, 1892, § 3548. 95 Tenn. 458; s. c. 30 L. R. A. 82; '^Alabama &c. R. Co. v. Jones, 73 49 Am. St. Rep. 935; 32 S. W. Rep. Miss. 110; s. c. 19 So. Rep. 105. 460. '" Louisville &c. R. Co. v. Howard, '"Mass Pub. Stat., Chap. 112, § 212. 90 Tenn. 144; s. c. 19 S. W. Rep. 116. '"Merrill v. Eastern R. Co., 139 '"'Dennison v. Miner (Pa.), 1 Cent. Rep. 927. 207 1 Thomp. Neg.] coxteibutory negligence. this have been made, as will be seen by a former chapter. In most Jurisdictions, the effect of such statutes is simply to make the failure to comply with their requirements negligence per se, and not to ex- cuse negligence in other persons. Thus, a statute of Iowa requiring the tumbling-rods of threshing-machines to be boxed, and providing that the owners of such machines shall be answerable in damages to any person injured by a failure to do so, does not give a right of action where the negligence of the person injured directly contrib- uted to the injury.^*" »"« Reynolds v. Hindman, 32 Iowa 146. 208 CONTRIBUTORY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. CHAPTER IX. DOCTRINE THAT THE CONTRIBUTORY NEGLIGENCE MUST HAVE BEEN THE PROXIMATE CAUSE OF THE INJURY. Section 216. This want of ordinary care must have been a proximate cause of the injury. 217. But need not have been the sole cause. 218. Theory that it is enough if it "contributed" to it. 219. Defendant's negligence prox- imate, plaintiff's negligence remote. 220. Where, notwithstanding plaint- iff's negligence, the injury would have happened. 221. Does not bar recovery unless, but for such negligence, the accident would not have hap- pened. 222. Recovery possible although, but for negligence of person in- jured, accident would not have happened. 223. Recovery possible unless, by ex- ercising ordinary care, con- sequences of defendant's neg- ligence could have been avoided. 224. Applications and misapplica- tions of this rule. 225. Applications of this rule in cases of collisions of vessels, railway trains, vehicles, etc. 226. No recovery unless defendant could have avoided conse- quences of plaintiff's negli- gence. 227. No recovery where, by exercis- ing ordinary care, conse- quences of defendant's neg- ' ligence could have been avoided. VOL. 1 THOMP. XEG. — 14 Section 228. If defendant could have avoid- ed plaintiff's negligence, or if plaintiff could not have avoid- ed defendant's negligence. 229. Confusion between negligence and causal connection. 230. Doctrine that plaintiff, though negligent, may recover if de- fendant could have avoided injury by exercise of ordi- nary care. 231. Comments upon the foregoing doctrines. 232. This rule restrained to cases where defendant was under the duty of exercising care to discover the dangerous situ- ation of others. 233. This rule contrasted with the rule that plaintiff can not re- cover if he could have avoid- ed the consequences of de- fendant's negligence by the exercise of ordinary care. 234. These two rules contradict each other. 235. Rule of Davies v. Mann, within what limits applied. 236. The subject illustrated by the case of a drunken man on a railway track at night. 237. Defendant not liable unless, after discovering plaintiff's negligence, he could have avoided injury by the exer- cise of reasonable care. 238. Defendant liable if, after dis- covering the exposed situa- tion of plaintiff, he could 209 1 Thomp. Neg.] conteibutory negligence. Section have avoided injuring him by the exercise of ordinary care. 239. Or when he ought to have dis- covered plaintiff's negligence, etc. 240. The "last clear chance" doc- trine. 241. Prior negligence of plaintiff and subsequent negligence of defendant. 242. Illustration in case of person injured on railway track and subsequently allowed to bleed to death. 243. Illustration in case of cattle killed on railway track. 244. Other illijetrations. 245. Prior negligence of plaintiff and subsequent unlawful act of defendant. 246. Application of the foregoing doctrines in case of trespass- ers exposing themselves to danger. Section 247. What if the defendant's wrong was willful. 248. Whether the plaintiff's negli- gence must have "directly" contributed to the injury. 249. Collateral violations of law. 250. Contributory negligence in mit- igation and apportionment of damages. 251. Plaintiff can not recover en- hanced damages by reason of his subsequent negligence. 252. Illustrations of this doctrine. 253. Defendant liable for increasing damage produced by plaint- iff's negligence, misfortune, etc. 254. Private abatement of nuisances: liability for destroying prop- erty negligently or unlaw- fully exposed. 255. Death or injury to A. brought about by A.'s own act super- induced by the wrongful act of B. § 216, This Want of Ordinary Care Must Have been a Proximate Cause of the Injury.^ — In order, then, to prevent a recovery by reason of contributory negligence, the plaintiff or person injured must have been guilty of a want of ordinary care ;^ and we shall now see that this want of ordinary care must have been a proximate cause of the in- jury, and not a remote cause or mere condition.^ If the negligence a This section is cited in §§ 46, 169, 177, 358, 1249. ^Ante, § 171, et seq. = Tuff V. Warman, 2 C. B. (N. S.) 740 (affirmed 5 C. B. (N. S.) 573); Day V. Grossman, 4 N. Y. S. C. (T. & C.) 122; Doggett v. Richmond &c. R. Co., 78 N. C. 305; The State v. Manchester &c. R. R., 52 N. H. 528; Grant v. Mosely, 29 Ala. 302, per Stone, J.; Foster v. Holly, 38 Ala. 76, 85; Flynn v. San Francisco &c. R. Co., 40 Cal. 14; Needham v. San Francisco &c. R. Co., 37 Cal. 409; Kline v. Central Pacific R. Co., 37 Cal. 400; s. c. 39 Cal. 587; Isbel v. New York &c. R. Co., 27 Conn. 393; Churchill v. Rosebeck, 15 Conn. 359 ; Dyer v. Talcott, 16 111. 300; North- ern Central R. Co. v. Price, 29 Md. 210 420; Meyer v. People's R. Co., 43 Mo. 523 ; Walsh v. Mississippi Trans. Co., 52 Mo. 434; Whalen v. St. Louis &c. R. Co., 60 Mo. 323; Lannen v. Albany Gas Light Co., 44 N. Y. 459; Byram v. McGuire, 3 Head (Tenn.) 530; Kennard v. Burton, 25 Me. 39; Union Pacific R. Co. v. Rollins, 5 Kan. 167; Caulkins v. Mathews, 5 Kan. 191; Sawyer v. Sauer, 10 Kan. 466; Cummins v. Presley, 4 Harr. (Del.) 315; Smithwick v. Hall &c. Co., 59 Conn. 261; s. c. 12 L. R. A. 279; 21 Atl. Rep. 924; Rich- mond &c. R. Co. V. Pickleseimer, 85 Va. 798,;-s?-c. 13 Va. L. J. 646; 10 S. E. Rep. 44; Higgins v. Wilming- ton City R. Co., 1 Marv. (Del.) 352; s. c. 41 Atl. Rep. 86; Guthrie v. Mis- souri R. Co., 51 Neb. 746; s. c. 71 CONTEIBUTOKY NEGLIGENCE: PROXIMATE CAUSE. [2(1 Ed. of the plaintiff was only remotely connected with the injiiry, the plaintiff may recover damages, if notwithstanding such remote negli- gence of the plaintiff the defendant might have avoided the injury by the exercise of ordinary care.* But if a want of ordinary care on the part of the person injured concurs as a proximate cause in producing the injury, the defendant is not liable, although in fault.* This doc- trine is involved in the meaning of the words we employ to express the negligence on the part of the plaintiff which will bar a recovery, — "contributory negligence." The negligence of the plaintiff which will bar a recovery of damages for an injury sustained by the defend- ant's negligence must be such as contributes to the injury complained of ; that is, as expressed by a learned and philosophic writer, it "must be such that, by the usual course of events, it would result, imless independent disturbing moral agencies intervened, in the particular injury."' So, if the negligence of the person injured was prox- imately connected with the accident, and the negligence of the person inflicting the injury had only a remote bearing upon it, there is, of course, no cause of action;' for, irrespective of the question of the N. W Rep. 722; Thompson v. Chi- cago &c. R. Co., 64 Minn. 159; s. c. 66 N. W. Rep. 265 ; St. Louis &c. R. Co. V. Philadelphia &c. Assoc, 55 Ark. 163; s. c. 18 S. W. Rep. 43; Factors' &c. Ins. Co. V. Werlein, 42 La. An. 1046; s. c. 8 South Rep. 435; Holo- han V. Washington &c. R. Co., 19 D. C. 316; s. c. 18 Wash. L. Rep. 751; Carter v. Chambers, 79 Ala. 223. »TufC v. Warman, 2 C. P. (N. S.) 740; Day v. Crossman, 4 N. Y. S. C. (T. & C.) 122; Doggett v. Richmond &c. R. Co., 78 N. C. 305; The State V. Manchester &c. R. R., 52 N. H. 528; and generally the cases just cited. See also Baltimore &c. R. Co. V. Kean, 65 Md. 394. In early cases at nisi prius in England, the rule was laid down that if the plaintiff's negligence in any way concurred in producing the injury, he could not recover. Pluckwell v. Wilson, 5 Car. & P. 375; Hawkins v. Cooper, 8 Car. & P. 473. These and other like cases expressing the same rule were followed in this country. But this, without more, is now regarded as an Inaccurate statement of the law; and, as we have seen (Radley v. London &c. R. Co., 1 App. Cas. 754; s. c. (in full) 1 Thomp. Neg., p. 1108), the House of Lords has held it error to charge a jury in this or similar language without qualifica- tion. •Robinson v. Western Pacific R. Co., 48 Cal. 409; Hearne v. Southern Pacific R. Co., 50 Cal. 482; Williams v. Clinton, 28 Conn. 266; McAunich V. Mississippi &c. R. Co., 20 Iowa 338, 346; Spencer v. Illinois &c. R. Co., 29 Iowa 55; Artz v. Chicago &c. R. Co., 38 Iowa 293; Schaahs v. Woodburn Sarven Wheel Co., 56 Mo. 173 ; Morrissey v. Wiggins Ferry Co., 43 Mo. 383; Newhouse v. Miller, 35 Ind. 463. In the head-note of an old case, the rule is said to be, that if the proximate cause of the dam- ages is the plaintiff's negligence or want of skill, he can not recover, although the primary cause was the defendant's fault or negligence: Flower v. Adam, 2 Taun. 314. "Whart. on Neg., § 324; Indianap- olis &c. R. Co. V. Herndon, 81 111. 143. "Callahan v. Warne, 40 Mo. 131. It has been held proper to charge a jury that, although the plaintiff must have been guilty of contribu- tory negligence, yet "if the jury be- lieve from the evidence that this negligence did not contribute to the plaintiff's injury," it will not pre- vent a recovery: Louisville &c. R. Co. V. Hurt, 101 Ala. 34; s. c. 13 So. Rep. 130. !11 1 Thomp. Neg.J contributory negligence. fault of the plaintiff, there is no juridical fault on the part of the de- fendant. § 217. But Need not have been the Sole Cause.* — Obviously it is not necessary that the plaintiff's negligence shall have been the sole proximate cause of the injury, for this would exclude all idea of negli- gence on the part of the defendant, and leave no room whatever for the application of the doctrines of mutual or contributory negligence.^ With this in view, the Supreme Court of Iowa state the rule to be that the plaintiff can not recover where his own want of ordinary care was, in whole or in part, a proximate cause of the injury," or if such want of ordinary care in any way contributed directly to the injury." It was accordingly held error to instruct the jury that the plaintiff would be entitled to recover if the plaintiff's own carelessness did not materially contribute to the injury, for this expression introduced the doctrine of "comparative negligence,"^" obtaining formerly in Illinois and still it seems in Georgia, but not in lowa.^^ It is better, in framing an instruction to a jury on this subject, to tell them that the plaintiff can not recover if the negligence of the plaintiff or person killed or injured was a proximate cause of the injury, than to use the expression "the proximate cause."^^ § 218. Theory that it is Enough if it "Contributed" to it." — One court has stated the rule somewhat loosely, thus: "If by the exer- cise of ordinary skill and care the plaintiff could have avoided the injury, or if his conduct contributed to produce it, he is not entitled to recover, although the defendant was also guilty of negligence."^ ^ Subsequently the same court cited the preceding cases as enunciating the rule that "if the party injured, either hy his conduct or want of a This section is cited in §§ 177, Hoben v. Burlington &c. R. Co., 20 464. Iowa 562; Kesee v. Chicago &g. R. ''Post, §§ 262, 264, 268; Western R. Co., 30 Iowa 78; O'Keefe v. Chicago Co. v. Sistrunk, 85 Ala. 352; North &c. R. Co., 32 Iowa 467; Artz v. Chi- Birmingham Street R. Co. v. Cal- cago &c. R. Co., 34 Iowa 153; Dodge derwood, 89 Ala. 247; s. c. 7 South, v. Burlington &c. R. Co., 34 Iowa Rep. 360; Trousclair v. Pacific Coast 276; Doggett v. Illinois &c. R. Co., Steamship Co., 80 Cal. 521; s. c. 39 34 Iowa 284; Carlin v. Chicago &c. Am. & Eng. Rail. Cas. 393; 22 Pac. R. Co., 37 Iowa 316; Reynolds v. Rep. 258. Hindman, 32 Iowa 146. 'McAunich v. Mississippi &c. R. ^'' Post, §§ 259, 262, 264, 268. Co., 20 Iowa 338; Muldowney v. Illi- ^' Artz v. Chicago &c. R. Co., 38 nois &c. R. Co., 39 Iowa 615. Iowa 293. ' Haley v. Chicago &c. R. Co., 21 " North Birmingham Street R. Co. Iowa 15. To the same effect, see v. Calderwood, 89 Ala. 247, 254; s. c. Sherman v. Western Stage Co., 24 7 South. Rep. 360. Iowa 516; Spencer v. Illinois &c. R. bThis section is cited in § 221. Co., 29 Iowa 55 ; Hunt v. Chicago &c. " Runyon v. Central R. Co., 25 N. R. Co., 26 Iowa 363; Donaldson v. J. L. 556; Moore v. Central R. Co., Mississippi &c. R. Co., IS Iowa 280; 24 N. J. L. 268. 212 CONTRIBUTOKY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. care, contributed to the production of the injury complained of, he can not recover."^* But it is thought that this court did not mean by these expressions to lay down a rule which would preclude the plaintiff from recovering damages where he had not been guilty of a want of ordinary care, for in a subsequent case the court stated the meaning of this expression as follows: "It is also assumed by the exception [to the refusal of the court to grant a nonsuit], and was argued here, that if the plaintiif by his own conduct contributed to the injury complained of, he can not recover." This statement of the principle is incorrect. In many cases where the plaintiff's conduct was to some extent contributory to his injury he has been allowed to recover. In fact, it would be difiBcult to conceive of any case in which the conduct of the party injured might not, in some sense, be said to have "contributed" to his injuries. In a later case in the Court of Errors and Appeals of New Jersey, the doctrine of contributory neg- ligence was restated thus by Eeed, J.: "It is also settled that the comparative degrees of the negligence of the respective parties- will not control the question of liability, but that if the plaintiff, in any degree, proximately contributed to the injury, he can not recover."^* The use of the word "contribute," in any statement of doctrine under this head, without explanation, is misleading; since the fact that a man has been born into the world, and has voluntarily chosen to live rather than die, contributes, in some degree, to every injury which he receives while living.^* § 219. Defendari's Negligence Proximate, Plaintiff's Negligence Remote."- — In line with a doctrine stated in a preceding chapter,^^ it has been reasoned that, where the evidence clearly shows defendant guilty of negligeni (e, although plaintiff was guilty of some negligence, yet, if the miscorduct of the defendant was the immediate cause of the injury, plaintiff should recover, provided he was without negli- gence directly contributing to the injury.^^ § 220. Where, Notwithstanding Plaintiff's Negligence, the Injury would have Happened.'' — Another test which has been offered is to "Telfer v. Northern R. Co., 30 N. souri &c. R. Co. (Mo.), 4 "West. Rep. J. L. 188, 199. 599; rev'g s. c. 12 Mo. App. 25. This "Pennsylvania R. Co. v. Rlghter, statement may well be questioned. 42 N. J. L. 180, 183. See also St. To say the least, its accuracy de- Louis &c. R. Co. V. Stevens, 3 Kan. pends upon the value to be given App. 176; s. c. 43 Pac. Rep. 434. to the word "directly." Compare "Compare ante, §§ 44, 46. In one post, § 248. case the statement Is judicially a This section is cited in § 170. made that it is a rule without exeep- "Xnte, §§ 85, 86. tion or qualification that the negli- " Drain v. St. Louis &c. R. Co., 86 gence of the plaintiff contributing Mo. 574; s. c. 2 West. Rep. 114. directly to the cause of his injury b This section is cited in § 177. will defeat recovery: Neier v. Mis- 213 1 Thomp. Neg.] contributory negligence. consider whether, notwithstanding the negligence of the plaintiff, the injury would nevertheless have been inflicted upon him by the de- fendant. If so, the negligence of the plaintiff is not deemed to be a proximate cause of the injury, and ceases to be a subject of consider- ation in the case.^° But, while this proposition offers a rule of ex- clusion by which a number of cases may be determined with cer- tainty, it does not follow that there can be no recovery in any case where the negligence of the plaintiff is a condition leading up to the injury. The contrary rule would exclude from recovery all that class of cases represented by the leading case of Davies v. Mann/'^ where the negligence of the plaintiff creates the condition of danger, and where the subsequent negligence of the defendant inflicts the injury. ^^ § 221. Does Not Bar Recovery unless, but for Such Negligence, the Accident would not have Happened.^ — It is a statement of a rule to which obviously there can be no exception, that the negligence or misconduct of the plaintiff or of the person killed or injured, in order to bar a recovery of damages, must have sustained such a relation to the accident that, but for such negligence, the accident would not have happened. ^- § 222. Recovery Possible although, but for Negligence of Person Injured, Accident would not have Happened. — But the converse of the preceding proposition is not true. On the contrary, there may, in many cases, be a recovery of damages where, but for the negligence of the person killed or injured, the accident would not have happened. This happens where the person killed or injured has negligently ex- posed his person or property to injury, and the defendant saw, or was " Pennsylvania &c. R. Co. v. Right- case it is said that if the plaintiff er, 42 N. J. L. 180, 183. so far contributes to the injury by ™ 10 Mees. & W. 546 ; s. c. 6 Jur. his own conduct as that, but for 954; 12 L. J. Exch. 10; 2 Thomp. such conduct, the injury would not Neg., 1st ed., 1105. have been received, he can not re- ''^Post, § 230, et seq.; ante, §§ 85, cover. "Wells v. Coe, 9 Colo. 159. 86. But, as already pointed out {ante, a This section is cited In §§ 169, § 218, note), this statement, without 177, 178. any qualification, is fallacious. A '^ Sullivan v. Louisville Bridge man may expose his person or prop- Co., 9 Bush (Ky.) 81, 90; Tuff v. erty to a negligent injury, and an- Warman, 5 C. B. (N. S.) 573; Fair- other person may subsequently, ley V. Richmond &c. R. Co., 81 Va. through negligence, inflict the in- 783; Scott v. Dublin &c. R. Co., 11 jury, in which case the sufferer will Ir. C. L. 377; Telfer v. Northern R. have an action for damages, — of Co., 30 N. J. L. 188; Baltimore &c. which a good illustration may be R. Co. V. Kean, 65 Md. 395; Lehigh found in Gannon v. Wilson (Pa.), Valley R. Co. v. Greiner, 113 Pa. St. 2 Cent. Rep. 305. See also post, 600; s. c. 4 Cent. Rep. 901. In one § 230, et seq. 214 CONTRIBUTORY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. under the duty of seeing, his person or property so exposed, but nevertheless inflicted the injury upon him or it, wantonly, according to some theory, or by failing to exercise ordinary care, according to the better view.^^ The law applicable to such situations has been formulated in a rule, often expressed, that, although the plaintiff or person killed or injiired may have been negligent, yet if the defend- ant could have avoided the consequences of such negligence by the exercise of ordinary care and failed to do so, he is liable to the plaintiff.^* § 223. Eecovery Possible unless, by Exercising Ordinary dare, Consequences of Defendant's Negligence Could have been Avoided.^ — Another proposition is that, although there must have been negli- gence on the part of the plaintiff or on the part of the person killed or injured, — yet the plaintiff may nevertheless recover, unless the cir- cumstances were such that the plaintiff, or the person killed or injured could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence.^^ Connecting the rule of this section with that of the preceding one, we must conclude that the obligation of two persons, whom we will suppose to be the plaintiff and the de- fendant in an action, to avoid the consequences of each other's negli- gence, is mutual.^" This rule is generally conceded, though not al- ways properly applied. § 224. Applications and Misapplications of this Rule. — Thus, A. has done a wrongful act which may result in injury to B. B. is not chargeable with negligence in not anticipating the wrongful act of A., since he is entitled to assume that A., as well as all other persons of ^Ante, § 85; post, § 230, et seq. v. Mississippi &c. R. Co., 18 Iowa "Davies v. Mann, 10 Mees. & W. 280, 288; Cummins v. Presley, 4 546; s. c. 6 Jur. 954; 12 L. J. Bxch. Harr. (Del.) 315; Pittsburgh v. 10; 2 Thomp. Neg., 1st ed., 1105; Grier, 22 Pa. St. 54; Atlanta &c. R. Tuff v. Warman, 5 C. B. (N. S.) 573; Co. v. Ayers, 53 Ga. 12; Western R. Radley v. London &c. R. Co., 1 App. Co. v. Johnson, 38 Ga. 409; Whirley Cas. 754 (reversing L. R. 10 Exch. v. Whiteman, 1 Head (Tenn.) 610; 100; 44 L. J. Exch. 73; 33 L. T. (N. Nashville &c. R. Co. v. Carroll, 6 S.) 209; aff'g L. R. 9 Bxch. 71; s. c. Heisk. (Tenn.) 347, 367. Compare 43 L. J. Exch. 73). Stiles v. Geesey, 71 Pa. St. 439; Fair- aThis section is cited in §§ 228, ley v. Richmond &c. R. Co., 81 Va. 268. 783. ^ Parke, B., in Davies v. Mann, ^Northern Central R. Co. v. 10 Mees. & W. 545; s. c. 6 Jur. 954; Price, 29 Md. 420, 437. The court 12 L. J. Exch. 10; Tuff v. Warman,, added: "The whole matter being for 5 C. B. (N. S.) 573; Northern Cen- the determination of the jury as to tral R. Co. v. Geis, 31 Md. 357; whose negligence and want of care Northern Central R. Co. v. Price, constituted the proximate cause of 29 Md. 420; Hassa v. Junger, 15 Wis. the injury." But this question is for 598; Scott v, Dublin &c. R. Co., 11 the jury only in a qualified sense: I. R. C. L. (N. S.) 377; Donaldson Ante, § 161, et seq. 215 1 Thomp. Neg.] contributory negligence. sound mind, will act rightly. But if he discovers a wrongful act of A. in time to avoid any injurious consequences which might flow from it to himself, he is bound to use ordinary care to that end ; and if by reason of his failure, under such circumstances, to use ordinary care, a wrongful act of A. results in injury to him, he can not recover dam- ages of A. In such a case his own negligence is deemed the prox- imate cause of the injury, while the negligence of A. is but a remote cause of it.^^ A. has constructed a dangerous area in front of his house in the sidewalk, into which B. falls and is injured. If B. could have avoided falling into it by the exercise of ordinary or reasonable care, B. can not recover damages of A.^* This has been applied as fol- lows : A. wanders upon the track of a railway company, and is there run over by a passing train. Assuming that the servants of the com- pany in charge of the train were negligent, if A. could not, at the time of the collision, have avoided the consequences of their negli- gence, a right to recover damages exists. If, however, he could by the exercise of ordinary care have avoided the consequences of such negli- gence, he would be the author of his own misfortune, and therefore no action would lie.^" § 225. Applications of this Rule in Cases of Collision of Vessels, Railway Trains, Vehicles, etc. — In cases of concurring negligence^ such as collisions of vessels, collisions of vehicles in the highway, col- lisions of railway trains, collisions of railway trains with travellers at highway crossings, and the like, the proper question for the jury is, according to a leading judgment of the Court of Exchequer Chamber, "whether the damages were occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune, by his own negligence or want of ordinary and common care and caution, that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened. In the first case, the plaintiff would be entitled to recover; in the latter, not, since but for his own fault the misfortune would not have happened. Mere negligence, or want of ordinary care and caution, would not, however, disentitle him to recover, unless it was such that but for that negligence or want of ordinary care and caution the misfortune would not have happened;^" nor if the .defendant might by the exercise of care on his part have '^ Butterfield v. Forrester, 11 Bast ^ Northern Central R. Co. v. Price, 60; s. c. 2 Thomp. Neg., Isted., 1104; 29 Md. 420, 437. GriflBn v. New York, 9 New York '" This was the rule as laid down 456; s. c. Seld. Notes 223; Clark v. in Short v. Knapp, 2 Daly (N. Y.) Kirwan, 4 B. D. Smith 21. 150. =* Irwin V. Sprigg, 6 Gill (Md.) 200. 216 CONTKIBUTOKY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. avoided the consequences of the neglect or carelessness of the plaintiff."" § 226. No Recovery unless Defendant could have Avoided Conse- quences of Plaintiff's Negligence.^ — Where there was antecedent neg- ligence on the part of the defendants, operating up to the time of the accident, and then contributory negligence on the part of the plaintiff, without which the accident would not have happened, it was held that the judge was bound to tell the jury that the defendants were not liable unless they could, ty a new physical act, irrespective of such antecedent and continuing negligence, have avoided the conse- quences of the plaintiff's neglect.^^ § 227. No Recovery where, by Exercising Ordinary Care, Conse- quences of Defendant's Negligence could have been Avoided.'* — An- other proposition is that, although there may have been a continuing act of negligence or misconduct on the part of the defendant, con- tinuing down to the time of the accident, yet if, by the exercise of ordinary care, the plaintiff could have avoided receiving injury from it, but failed to exercise ordinary care and did receive injury from it, he can not recover damages. This is well illustrated by the lead- ing case, where the defendant wrongfully put a hurdle part way across a public highway, and the plaintiff driving recklessly at dusk, ran upon it and was hurt, and failed to recover damages.^^ So, also, if a fence has been removed so that the cattle of a farmer may trespass upon my field, and I nevertheless plant a crop in the field, it is held that I am precluded from recovering from the owner of the cattle, damages for the loss of the crop. It was said: "The defendant used no care whatever. He might as well have driven voluntarily against an obstruction which another had placed in the road, and which he could easily avoid, and then sue for damages."^* In another case it » Tuff V. Warman, 5 C. B. (N. S.) 598; Atlanta &c. R. Co. v. Ayers, 53 573, 585; quoted with approval in Ga. 12; Louisville &c. R. Co. v. many American cases, such as: Bal- Yniestra, 21 Fla. 700; Lilley v. timore &c. R. Co. v. Kean, 65 Md. Fletcher, 81 Ala. 234; Macon &c. R. 394, 401. Co. V. Johnson, 38 Ga. 409. a This section is cited in §§ 29, " Hassa v. iunger, 15 Wis. 598, 490, 892. 600. The conclusion of the court " Scott V. Dublin &c. R. Co., 11 Ir. here is doubtful. It goes to the C. L. 377. Compare post, § 230, et length of holding that one farmer, seg. by allowing his cattle to run at i) This section is cited in §§ 204, large, can rightfully prevent his 228, 489. neighbor from planting and reaping " Butterfleld v. Forrester, 11 East a crop on his own land. If the 60; s. c. 2 Thomp. Neg., Isted., 1104; neighbor can not plant his crop and bcott V. Dublin &c. R. Co., 11 Ir. C. recover for any damages done to it L. 377; Tuff v. Warman, 5 C. B. (N. by his neighbor's cattle, where is S.) 573; Hassa v. Junger, 15 Wis. his remedy? May he not just as 217 1 Thomp. Neg.] contributory negligence. appeared that the captain of a schooner, while a high wind was blow- ing and a heavy sea running, sought, against advice and recklessly, to run his schooner into Lake Poncthartrain. The schooner was dashed against piles, whose existence was well known, at a place where the defendants, a navigation company, were constructing a pass. It was held that the defendants were not liable for the loss of the schooner; that, even if there were mutual negligence, yet the plaintiff's negligence was the proximate cause of the mishap.^'* So, although the failure of a railway company to maintain a signboard at a highway crossing, as required by statute, is negligence per se, yet this will not of itself justify a recovery of damages where one is killed by a train while attempting to cross the track, if he might, by the exercise of his faculties, have seen the approaching train without the warning afforded by the signboard.^" § 228. If Defendant could have Avoided Plaintiff's Negligence, or if Plaintiff could not have Avoided Defendant's Negligence.^ — Some- times the principles expressed in the preceding sections'^ are thrown together in judicial opinions thus: "It is true that, in some cases, there may be negligence in both parties concerned, and yet an action may be maintained; but in such cases it must appear, either that the defendant might, by the exercise of proper caution, have avoided the consequences of the injured party's neglect, or that the latter could not, by ordinary care, have avoided the consequences of the defend- ant's negligence. This, however, implies time for the one party to become aware of the conduct and the situation of the other, for neither could be required to anticipate the other's negligence." ^^ § 229. Confusion between Negligence and Causal Connection. — The foregoing cases conduct the mind to a distinction, a failure to re- gard which has constantly confused the minds of counsel, judges, and juries. It is, that the negligence or fault of the plaintiff or person injured is one thing, and the causal connection between that negli- gence or fault and the catastrophe is another. As already pointed out, nothing will preclude the plaintiff from recovering, except such conduct as puts him in the wrong. This conduct can not in any case be less than (1) a willful and intentional act of wrong, (3) a well conclude, when he plants his . " Field v. Chicago &c. R. Co., 14 crop, that his neighbor will restrain Fed. Rep. 332. his cattle before the crop gets large a This section is cited in §§ 29, enough to be destroyed by them? 489. The decision seems to be untenable. ^ Ante, §§ 223-227. ^ Levy V. Carondelet Canal &c. Co., '« Northern Central R. Co. v. State, 34 La. An. 180. 31 Md. 366; Holohan v. Washington &c. R. Co., 19 D. C. 316. 218 CONTRIBUTORY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. voluntary assumption of the risk which results in the injury, or (3) negligence, — that is, a want of ordinary or reasonable care, or, in other words, a want of that degree of caution which he ought to have exercised under the circumstances. If the plaintiff's act which brought about the wrong was not willful, and if the risk was not voluntarily assumed, as pointed out in another section, then there must have been at least negligence, juridical negligence, to bar a re- covery. But, as elsewhere seen, this alone will not bar a recovery. There may have been a wrongful act, there may have been negli- gence, and yet this act or this negligence may not have been a prox- imate cause of the catastrophe, or may have been wholly collateral to it, although it may be said to have in some sense "contributed" to it, — in which case it would furnish no answer to an action for damages; but if it was a proximate cause of the catastrophe it would bar an" action for damages. But liow proximate, liow near must it have been to the accident in order to have this effect? The old answer to this question was that if the negligence — or juridical negligence — or want of ordinary care — of the person injured, contributed in any degree to the accident, there could be no recovery of damages.^' Eoundly stated, this doctrine was that the plaintiff can not be barred of his right to recover damages unless the person killed or injured was guilty either of a want of ordinary care or of some higher grade of fault, a voluntary assumption of the hazard, or a willful wrong; but if he was guilty of such fault, and it contributed in any degree to the accident, there can be no recovery of damages. On the other hand, if he was guilty of such fault, and it was wholly collateral to the accident, — that is, did not contribute "in any degree to it," — it will be no answer to his action. '"' § 230. Doctrine that Plaintiff, though Negligent, may Recover if Defendant could have Avoided Injury by Exercise of Ordinary Care.^ — This was the old rule, and though a harsh rule, for it left the plaintiff to bear all the damages, although he may have been but re- motely, and consequently but slightly, in.fault,*^ yet it had the merit of certainty; it could seldom be misapplied by the court or misunder- stood by the jury. But it soon received at the hands of the courts a ^Ante, § 170. in Hatfield v. Chicago &c. R. Co., 61 *° Instructions to the effect that, Iowa 434. though plaintiff might have heen a This section is cited in §§ 220, "in some respects negligent," yet if 221, 222, 226, 277, 295, 330, 344, 382, "such negligence did not contribute 477, 892, 1325. or tend to produce the injuries he ■" This the writer has endeavored received," he could recover, "if said to make clear in subsequent sec- injuries were produced by the negli- tions. gence" of defendant, were held good 219 1 Thomp. Neg.] contributory negligence. qualification, so-called, namely: that although the plaintiff was guilty of a want of ordinary care contributing to the injury, yet this will not prevent him from recovering damages of the defendant, if the defendant might nevertheless have avoided the injury by the ex- ercise of ordinary care on his part.*'' This proposition, as we shall endeavor to show in the next section, contradicts the rule it pretends to qualify, introduces a principle of manifest injustice, and throws the whole subject into confusion. § 231. Comments upon the Foregoing Doctrines. — These doctrines remain little more than metaphysical abstractions, tending to confuse courts and juries and to defeat the ends of justice, unless there can be extracted from them a definite practical rule or rules. I remain convinced, after a further study of the adjudications of both the English and American courts, that the whole subject of contributory negligence remains in a state of great confusion and uncertainty. The doctrinal formulas already laid down in the preceding sections are reiterated in many judicial opinions without their import being understood by the judges who make use of them; and even those judges who, by study, seem to have acquired definite theoretical views of the import of these expressions, are unable to agree upon any definite rules with respect to their application. Nothing will better convince the reader of this than the diversity of opinion among the English judges and law lords in the case of Radley v. London and North-Western Railway Company.*^ These judges and lords all ap- pear to have agreed that the doctrine of Davies v. Mann** — that al- though A. was guilty of negligence contributing to produce the injury « Farley v. Ricliniond &c. R. Co., Charles Warner Co., 1 Marv. (Del.) 81 Va. 783; Baltimore &c. R. Co. v. 88; s. c. 37 Atl. Rep. 39; Baker v. Kean, 65 Md. 394; Boston &c. R. Co. Wilmington &c. R. Co., 118 N. C. v. MoDuffey, 25 C. C. A. 247; s. c. 1015; s. c. 24 S. B. Rep. 415; Inland 51 V. S. App. Ill; 79 Fed. Rep. 934, &c. Coasting Co. v. Tolson, 139 U. S. 941; Radley v. London &c. R-'Co., 1 551; s. e. 35 L. ed. 270; 11 Sup. Ct. App. Cas. 754; Scott v. Dublin &c. Rep. 653; 19 Wash. L. Rep. 438; R. Co., 11 Irish Com. Law 377; Aus- Grand Trunk R. Co. v. Ives, 144 U. S. tin V. New Jersey Steamboat Co., 43 408; s. c. 36 L. ed. 487; 12 Sup. Ct. N. y. 75, 82; Lucas v. Taunton &e. Rep. 679; Gunter v. Wicker, 85 N. C. R. Co., 6 Gray (Mass.) 64, 72; North- 310; Daggett v. Richmond &c. R. Co., ern Central R. Co. v. Price, 29 Md. 78 N. C. 305; Colorado Central R. Co. 420; Omaha Street R. Co. v. Martin, v. Holmes, 5 Colo. 197. 48 Neb. 65; s. c. 4 Am. & Eng. R. Cas. "L. R. 9 Exch. 71; s. c. 43 L. J. (N. S.) 1; 66 N. W. Rep. 1007; Hall Exch. 73; 1 App. Cas. 754 (reversing v. Ogden City Street R. Co., 13 Utah L. R. 10 Exch. 100; 44 L. J. Exch. 243; s. c. 44 Pac. Rep. 1046; 4 Am. & 73; 33 L. T. (N. S.) 209; (in full) Eng. R. Cas. (N. S.) 77; Texas &c. 2 Thomp. Neg., 1st ed., 1108. R. Co. V. Nolan, 11 C. C. A. 202; s. c. " 10 Mees. & W. 545; s. c. 2 Thomp. 62 Fed. Rep. 552, 556; Ford v. Neg., 1st ed., 1105. 220 CONTRIBUTOKY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. complained of, yet this would not prevent him from recovering dam- ages for the injury of B., if B. could, notwithstanding A.'s negli- gence, have avoided inflicting the injury by the exercise of ordinary care — was the settled law of England ; but their opinions were diverse as to the application of the rule. § 232. This Rule Eestrained to Cases where the Defendant was under the Duty of Exercising Care to Discover the Dangerous Situa- tion of Others. — The doctrine of this text can have no just applica- tion in any case, except where the person inflicting the injury was under the duty of exercising care to discover the exposed situation of the person receiving the injury. If this test is kept steadily in view, it will lead us out of many difficulties and prevent much confusion. The best illustration of the principle is found in the case of the en- gineer of a railway train on a railway where there are grade cross- ings, or where the track runs along a public street or highway, and where consequently human beings or animals are liable to get upon the track. The engineer is driving the instrument of danger for- ward, generally at a high rate of speed. He is the actor, and the person or animal on the track is passive ; he is therefore under a con- tinuous duty of watchfulness; the principles which govern the con- duct of men everywhere in the civilized, social state, demand nothing less than this. To demand on his part the exercise of what is called ordinary care, to the end that persons or animals who may get inad- vertently- in front of his train shall not be run over, is a principle which is conservative of human life, and which every court of justice ought consequently to acknowledge and apply.*^ The rule that where the person or the animal happens to be in the position of a trespasser on the railroad track, the railway company owes them no duty of dis- covering them and averting injury to them, and owes no duty to them after discovering their exposed position, except not wantonly to run "Baker v. Wilmington &c. R. Co., In the case of a railway engineer 118 N. C. 1015; s. c. 24 S. E. driving forward a train, wlio runs Rep. 415. This was a case where over a person exposed upon the a drunken man went to sleep on track, there can be no recovery un- a railway track and the engineer less knowledge of the dangerous po- of an approaching train, by failing sition of the injured person was to exercise that watchfulness that brought home to the engineer, and is necessary "in the case of a cow that it is not sufficient that he could or a hog," ran over him and killed have obtained that knowledge by the him, and it was held that the rail- use of reasonable diligence: Cullen way company must pay damages, v. Baltimore &c. R. Co., 24 Wash. L. In contrast with this is the doc- Rep. 130; s. c. 8 App. D. C. 69. The trine laid down by the Supreme rule which exonerates the railway Court of the District of Columbia, company from any duty of keeping and by other courts that place a lookout in front of its trains for money above human life, that even persons upon its track. 221 1 Thomp. Neg.J contributory negligence. them down as trespassers, — is found in the expressions of some courts.*' It is a disgrace to any civilized system of jurisprudence. The sound principle then is, that the defense of contributory negli- gence is not available where the defendant was guilty of a negligent act or omission subsequently to the time when he ought to have known that the negligence of the plaintiff or of the person injured had created a position of peril.*' In a decision of the Supreme Court of the United States, which though recently rendered is already much quoted, and which carries with it additional weight from the fact that the opinion was written by Mr. Justice Gray, the plaintiff was standing on a wharf, where he had taken his station to deliver freight to a passing steamer. The evidence tended to show that the boat struck the wharf with such violence as to start and break a plank floor, and to catch and crush the plaintiff's foot between the planks and the capstan post. It was held proper to instruct the jury as follows: "Although the rule is that, even if the defendant is shown to have been guilty of negligence, the plaintiff can not recover if he himself be shown to have been guilty of contributory negligence, which may have had something to do in causing the accident, — yet the contributory negligence on his part would not exonerate the de- fendant, and disentitle the plaintiff from recovering, if it be shown that the defendant might, by the exercise of reasonable care and pru- dence, have avoided the consequences of the plaintiff's negligence." This qualification of the general rule as to contributory negligence, was held correct, applicable to the case on trial, and supported by high authority. In response to the argument that there was no evi- dence that the defendant knew the peril of the plaintiff, or had either time or opportunity, by the exercise of any degree of care, to guard against it, the court said: "It was indisputable that the steamboat was approaching the wharf at his call, and for the purpose of receiv- ing freight from his hands, and that her pilot and officers saw him as he waited on the wharf. The jury might well be of opinion that while there was some negligence on his part in standing where and as he did, yet, that the officers of the boat knew just where and how he stood, and might have avoided injuring him if they had used reason- able care to prevent the steamboat from striking the wharf with un- usual and unnecessary violence. If such were the facts, the defend- ant's negligence was the proximate, direct and efficient cause of the injury."*^ «Dull v. Cleveland &c. R. Co., 21 111; 79 Fed. Rep. 934, 941; Inland Ind. App. 571; s. c. 52 N. E. Rep. &c. Co. v. Tolson, 139 U. S. 551, 559. 1013. " Inland &c. Co. v. Tolson, 139 U. "Boston &c. R. Co. v. McDuffey, S. 551, 559. In Georgia, where the 25 C. C. A. 247; s. c. 51 U. S. App. doctrine of comparative negligence 222 CONTRIBUTORY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. § 233. This Rule Contrasted with the Eule that Plaintiff can not Recover if he could have Avoided the Consequences of Defendant's Negligence by the Exercise of Ordinary Care. — Side by side with this rule, the English and American courts, as already seen, have placed the converse rule, viz. : that although the defendant may have been guilty of a want of ordinary care contributing to produce the injury complained of, yet this will not entitle the plaintiff to recover dam- ages of the defendant, if the plaintiff could have avoided the con- sequences of the defendant's negligence by the exercise of ordi- nary care. The first of these rules is an almost total repudiation of the doctrine of contributory negligence ; and where the judges do not firmly exercise the right of directing verdicts, it results, in practice, in the jury ignoring the plaintiff's negligence entirely. It is nothing more than a declaration that although both parties have been guilty of negligence contributing to the injury, the party who suffered the damage is to be completely exonerated, and the other party is not to be exonerated to any extent: the former is to recover of the latter, without any abatement on account of his own share of the fault, all the damages which he has suffered. This is manifest injustice. § 234. These Two Rules Contradict Each Other.^ — The two rules, placed side by side, as some coiirts are in the habit of placing them,*' contradict each other and make nonsense, though an examination of the cases in which they have been formulated will show that they were generally well decided. To show this, let us apply them to the facts of Davies v. Mann.^" Davies, in fettering his ass and turning him loose upon the highway, was confessedly guilty of a want of ordinary care, and this want of ordinary care contributed to the injury; for if Davies had kept the animal in his enclosure, or had turned it out without fettering it, it would have escaped the injury which happened still seems to prevail, and where in nearly valueless from the fact that many cases the contributory negli- it decides that there is, as a matter gence of the person injured operates of law, no duty on the part of a merely in mitigation of damages, conductor of a street car on the the rule under consideration has public street of a city, to observe been stated by saying that the fail- the track in front of him : Macon &c. ure of a person to exercise ordinary Electric Street R. Co. v. Holmes, 103 care to avoid the consequences of Ga. 655; s. c. 30 S. E. Rep. 563; 4 the negligence of another, after he Am. Neg. Rep. 251; 12 Am. & Eng. is aware of the negligence of the R. Cas. (N. S.) 385. latter, or has reason to apprehend a This section is cited in § 268. the existence of it, precludes him "Tuff v. Warman, 5 C. B. (N. S.) from any recovery of damages 573; Northern Central R. Co. v. from the wrong-doer, and does not Price, 29 Md. 420; Scott v. Dublin merely lessen his damages in accord- &c. R. Co., 11 Ir. C. L. 556; Balti- ance with the proportion which his more &c. R. Co. v. Kean, 65 Md. 394. negligence bore to the negligence of ™ 10 Mees. & W. 546; s. c. 2 Thomp. the other person; but the case is Neg., 1st ed., 1105. 223 1 Thomp. Neg.] contributory negligence. to it. But since the servant of Mann could have avoided the conse- quences of Davies's negligence — that is, could have avoided running over the animal — by the exercise of ordinary care, Mann was com- pelled to pay Davies the full value of the animal, — that is, Mann was compelled to pay Davies not only for the consequences of his own serv- ant's negligence, but also for the consequences of Davies's negligence. Now let us try the case by the converse proposition: The servant of Mann was guilty of negligence contributing to the injury, — that is, he was guilty of negligence in running over Davies's animal fettered in the highway. But Davies could have avoided the consequences of the negligence of Mann's servant — that is, he could have avoided this injury to his animal by the exercise of ordinary care on his part, as by keeping the animal in his enclosure, where he ought to have kept it, or in turning it out without being fettered, if he chose to take the risk of turning it out at all. Davies, therefore, under this statement of the rule, was not entitled to recover damages of Mann, and the case was wrongly decided. Now, cases are constantly put to juries either on the first or the last of these propositions, which can not both be rules of justice, or upon both propositions put together, which contradict each other and make no rule at all. § 235. Rule of Davies v. Mann, within what Limits Applied.* — Let us take again the facts of Davies v. Mann, and see if a rule of practical justice can not be extracted from them: Davies was guilty of negligence contributing to the injtiry in turning his animal loose, fettered, on the highway. If the servant of Mann was guilty of no greater fault than driving rapidly and heedlessly down-hill without observing that the animal was fettered, and hence unable to get out of the way, then Davies ought not to have recovered damages for the loss of his animal; for the negligence of both contributed to the in- jury, and the negligence of Mann's servant was no greater than that of Davies. There is no possible rule of justice or of sense which obliged Mann's servant to anticipate and foresee that Davies would be so negligent as to turn his animal out upon the highway in such a condition. °^ But if Mann's servant had discovered the helpless con- dition of Davies's animal in sufBcient time that by the exercise of ordinary care as a driver he could have avoided running over it, he was bound to exercise such care; and if he did not do it, his negli- gence was of such a quality as not to be excused by the preceding neg- ligence of Davies ; nor is there any just reason why, if such had been a This section is cited in §§ 86, " 10 Mees. & W. 545; s. c. 2 Thomp. 259, 892. Neg., 1st ed., 1105. 224 CONTRIBUTORY NEGLIGENCE: PROXIMATE CAUSE. [2(3 Ed. the ease, Davies's negligence ought to have mitigated the damages re- covered by him. § 236. The Subject Illustrated by the Case of a Drunken Man on a Eailway Track at Night.* — We come back to the conclusion that a solution of the question must depend in every case upon the view which the court takes of the question whether the defendant is under the duty of knowing the exposed position of the plaintiff or of the person injured. If, in the case of a railway train driving at a high rate of speed, there is no such duty except at a highway crossing, — no such duty with respect to persons upon its track who may be regarded as technical trespassers, — then the railway 'company is not to be put in the wrong unless, after the engineer discovered the exposed posi- tion of the person killed or injured, he might, by the exercise of ordi- nary care, in sounding the steam whistle and reversing his engine, or both, — ^have averted the catastrophe; and this, as we shall see in a succeeding volume, is the doctrine of many courts. °^ Let us take the case where a drunken man staggers upon a railway track, falls down and goes to sleep, in the night time. This is negligence in him ; and if he is run over and killed by a passing train, there is no question that his negligence has contributed to the injury. A train approaches, the engineer of which, or other employe charged with such duty, has negligently failed to replenish the oil in the lamp of the locomotive, in consequence of which the engine has no headlight, and hence A. is not seen and is run over and killed. Under these circumstances the railway company has been exonerated from the payment of dam- ages.'^ But if the doctrine of other courts is to prevail in such a situation, which puts upon the railway company the duty of main- taining through its engineer a continual watchfulness, to the end of avoiding such catastrophes, even to trespassers on its tracks,^* then the conclusion would be the reverse. But all courts would agree that if the engine had had a light, and if the engineer had seen the drunken person lying upon the track, in time to have stopped the train, and to have avoided running over him, by the exercise of such care and skill as a good engineer ought to exercise under such circum- stances, then he would have been bound to do so; and if A. had been run over in consequence of his failing to do so, the company would a This section is cited in §§ 239, "O'Keefe v. Chicago &c. R. Co., 247. 32 Iowa 467. "= It is the doctrine of the District " As held in Baker v. Wilmington of Columbia, as shown in Cullen v. &c. R. Co., 118 N. C. 1015; s. c. 23 Baltimore &c. R. Co., 24 Wash. L. S. E. Rep. 415, and in Nashville &c. Rep. 130; s. c. 8 App. D. C. 69. R. Co. v. Smith, 6 Heisk. (Tenn.) 174. VOL. 1 THOMP. NEG. — 15 225 1 Thomp. Neg.J contributoey negligence. not be exonerated by the contributory negligence of A. from the obli- gation of paying damages because of his death. § 237. Defendant not liable unless, After Discovering Plaintiff's Negligence, he could have Avoided Injury by the Exercise of Reason- able Care.^ — It is believed that these considerations fairly conduct us to the following rules : 1. If A. and B. have both been guilty of negli- gence contributing or tending proximately to produce the injury complained of, A. can not recover damages of B., unless, after discov- ering the exposed situation of A., B. could have avoided the conse- quences of A.'s negligence — ^that is, could have avoided the injury which took place — by the exercise of ordinary care.^^ 3. One person is not bound to anticipate that another person, being sui juris j^^ will negligently expose himself or his property to injury, and is not bound to make provision against the consequences of such negligence. Therefore, if A. has negligently placed his person or his property in such a situation that B. is liable to injure it in the exercise of his lawful business, and B., without discovering that A. has done this, so injures it, B. is not bound to pay damages to A., although at the time he committed the injury he was not proceeding with ordinary care. The foundation of this rule was thus lucidly stated by Peters, J., speaking for the Supreme Judicial Court of Maine: "In cases falling within the foregoing description, where the negligent acts of the parties are distinct and independent of each other, the act of the plaintiff preceding that of the defendant, it is considered that the plaintiff's conduct does not contribute to produce the injury if, not- withstanding his negligence, the injury could have been avoided by the use of ordinary care at the time by the defendant. This rule ap- plies usually in cases where the plaintiff or his property is in some a This section is cited in § 330. Central R. v. State, 31 Md. 366; Illi- »= Barker v. Savage, 45 N. Y. 191, nois &c. R. Co. v. Dick, 12 Ky. Rep. 194; Brown v. Lynn, 31 Pa. St. 510; 772; s. c. 15 S. W. Rep. 665 (not to Northern &c. R. Co. v. Price, 29 Md. be off. rep.) ; Richmond &c. R. Co. 420; Locke v. First Division &c. R. v. Yeamans, 86 Va. 860; s. c. 12 S. E. Co., 15 Minn. 350; Nelson v. Atlantic Rep. 946; Duncan v. Missouri &c. R. &c. R. Co., 68 Mo. 593; O'Keefe v. Co., 46 Mo. App. 198; Hays v. Gaines- Chicago &c. R. Co., 32 Iowa 467; ville Street R. Co., 70 Tex. 602; s. c. Morris v. Chicago &c. R. Co., 45 8 S. W. Rep. 491; Zimmerman v. Iowa 29. Compare Lannen v. Al- Hannibal &c. R. Co., 71 Mo. 476; hany Gas Light Co., 44 N. Y. 459 Union &c. R. Co. v. Mertes, 35 Neb. (affirming 46 Barb. (N. Y.) 264); 204; s. c. 52 N. W. Rep. 1099; Louis- Straus -v. Kansas City &o. R. Co., 75 ville &c. R. Co. v. Earl,. 94 Ky. 368 ; Mo. 185; Swigert v. Hannibal &c. R. s. c. 15 Ky. L. Rep. 184; 22 S. W. Co., 75 Mo. 475; Masser v. Chicago Rep. 607. &c. R. Co., 68 Iowa 602; Tennis v. '"'Contributory negligence on the Interstate &c. Co., 45 Kan. 503, 509; part of those who are not sui juris s. c. 25 Pac. Rep. 876; Holohan v. is separately considered: Post, Washington &c. R.- Co., 19 D. C. 316; § 289, et seq. s. c. 18 Wash. L. Rep. 751; Northern 226 CONTEIBUTORY NEGLIGENCE PROXIMATE CAUSE. [2d Ed. position of danger from a threatened contact with some agency under the control of the defendant, when the plaintiff can not, and the de- fendant can, prevent the injury. * * * But this principle would not govern where both parties are contemporaneously and actively in fault, and, by their mutual carelessness, an injury ensues to one or both of them."°^ This qualification of the rule is aptly illustrated by the case of a collision between a traveller and a train at a railway grade crossing. The traveller fails to exercise his faculties to dis- cover the approach of a train, and those in charge of the train fail to give the proper signal on approaching the crossing. When he dis- covers the train on the one hand, and when the train-men discover him on the other, it is too late to avoid the collision. In such a case, unless the doctrine of contributory negligence is abolished, there can be no recovery. °^ The negligence of each is a proximate cause of the catastrophe: the negligence of one is just as near the catastrophe as that of the other. But the courts which adhere to the rule which requires knowledge on the part of the defendant of the exposed posi- tion of the person killed or injured, as contradistinguished from the duty of knowing, maintain the theory that where one person negli- gently comes into a situation of peril, before another can be held liable for an injury to him it must appear that the latter had knowl- edge of his situation in time to have prevented the injury, or it must appear that the injurious act or omission was by design, and was such, considering time and place, as that its natural and probable conse- quences would be to produce serious injury.^" § 238. Defendant Liable if, after Discovering the Exposed Situa- tion of the Plaintiff, he could have Avoided Injuring him by the Ex- ercise of Ordinary Care.* — The courts are almost universally agreed that, notwithstanding the fact that the plaintiff or the person injured has been guilty of some negligence in exposing his person or property to an injury at the hands of the defendant, yet if the defendant discov- ered the exposed situation of the person or the property, in time, by the exercise of ordinary or reasonable care after so discovering it, to have avoided injuring it, and nevertheless failed to do so, the contributory negligence of the plaintiff or of the person injured, does not bar a recovery of damages from the defendant.®" The rule is aptly illus- "^ O'Brien v. McGlinchy, 68 Me. °° Louisville &c. R. Co. v. Bryan, 552, 557; quoted with approval in 107 Ind. 51; s. c. 5 West. Rep. 263. Holmes v. South. Pac. Coast R. Co., a This section is cited in §§ 177, 97 Cal. 161, 169; s. c. 31 Pac. Rep. 178, 247, 330, 341, 406, 493, 1284, 834. 1292, 1301. »« Holmes v. South. Pac. Coast R. ™ Inland &c. Co. v. Tolson, 139 U. Co., 97 Cal. 161; s. c. 31 Pac. Rep. S. 551, 558; Omaha Street R. Co. v. 834. Cameron, 43 Neb. 297; s. c. 61 N. W. 227 1 Tliomp. Neg.] contributory negligence. trated by taking the case where a person negligently -walks upon a railroad track, and fails to keep out of the way of a passing train. If the engineer, after noticing his exposed situation, fails to stop his engine, or give the proper signals, or otherwise acts willfully and recklessly, in consequence of which the person is killed or injured, the company will be liable to pay damages."^ So, where a child was killed by a railroad train while walking upon the track, and it ap- peared an employe of the company, stationed as a "lookout" on the train, saw the child before the accident, and failed to exercise due care to avoid the injury, the company will be liable, however negligently the child may have acted. °^ § 239. Or When lie Ought to have Discovered Plaintiff's Negli- gence, etc.^ — An exception to this rule plainly exists where the de- fendant is driving an instrument of danger, such as a railway train; or is doing something of such a nature that, unless extreme caution is used, it is likely to lead to mischief ; in which cases the law so far con- forms to the dictates of humanity and enforces the plain obligations of social and moral duty, as to require the defendant to keep a con- stant lookout and to exercise an unremitting diligence, — which is no more than requiring him to exercise a degree of care in proportion to the danger to others, — to the end that they may not be injured. And this duty especially arises in favor of children, the aged and iniirm, and in general in favor of those who, by reason of physical or mental decrepitude, are incapable of caring for themselves. We shall see that this doctrine is frequently applied in cases where persons, al- though technically trespassers, are injured on a railway track. The doctrine, within the limits of this exception to the preceding rule, is that, although the person killed or injured, or the person injured in his property, might, by the exercise of ordinary care, have avoided ex- posing himself or his property to the injury, yet this vrill not prevent Rep. 606; Krenzer v. Pittsburgh &c. 28 Atl. Rep. 397; Kirtley v. Chicago R. Co., 151 Ind. 592; s. c. 1 Repr. &c. R. Co., 65 Fed. Rep. 386; Thomp- 388; 12 Am. & Bng. Rail. Cas. (N. S.) son v. Salt Lake Rapid Transit Co., 343; 5 Am. Neg. Rep. 137; 52 N. B. 16 Utah 281; s. c. 52 Pac. Rep. 92; Rep. 220; rehearing denied in 151 40 L. R. A. 172; McLamb v. Wil- Ind. 587; s. c. 43 N. E. Rep. 649; Neet mington &c. R. Co., 122 N. C. 862; V. Burlington &c. R. Co., 106 Iowa s. c. 29 S. B. Rep. 894; Atwood v. 248; s. c. 5 Am. Neg. Rep. 26 ; 76 N. W. Bangor &c. R. Co., 91 Me. 399; s. c. Rep. 677; Benton v. Chicago &c. R. 40 Atl. Rep. 67. Co., 55 Iowa 496; Morris v. Chicago "Bouwmeester v. Grand Rapids &c. R. Co., 45 Iowa 29; Sutzin v. &c. R. Co., 63 Mich. 557; s. c. 6 West. Chicago &c. R. Co., 95 Iowa 304; Rep. 364. Orr V. Cedar Rapids &c. R. Co., 94 "* Jamison v. Illinois &c. R. Co., Iowa 423; Ford v. Chicago &c. R. 63 Miss. 33. Co., 106 Iowa 85; Baltimore Trac- a This section is cited in §§ 259, tion Co. V. State, 78 Md. 409; s. c. 1301. 228 CONTRIBUTORY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. him from recovering damages from the defendant if the latter either discovered the exposed situation of the plaintiff, or the exposed situ- ation of his property, in time, by the exercise of ordinary care, to have- avoided injuring him or it ; or might, by the exercise of ordinary care, have discovered the exposed situation of the person killed or injured, or the exposed situation of the property of the plaintiff, in time, by the exercise of the like ordinary care, to have avoided injuring him or it."' This qualification of the general rule, as above stated, is more commonly applied in cases where persons have exposed them- selves to danger by going negligently upon railway tracks, without looking or listening for approaching trains. In such cases the well known general rule is that the person so exposing himself can not recover: What we are now considering is called a "qualification" of it. "This rule," said the late Judge Macfarlane, "has, however, a qualification which is founded upon principles of humanity, and is universally recognized. This qualification enjoins upon the railroad company the duty of using all reasonable efforts to avoid injury to one who has accidentally placed himself in a position of danger, if the peril is known, or, under certain circumstances, by reasonable care, might have been known. A failure to observe this requirement renders the company liable, notwithstanding the previous negligence of the person injured.""* Further on he said: "The railroad com- pany must have some regard to the known imprudence of mankind, and not content themselves with the mere obedience to the law re- quiring signals to he given ; and the traveller must, in like manner, take precautions for his own safety, and not depend entirely upon the railroad company to protect him, or give him timely notice of dan- gej._"6 5 § 240. The "Last Clear Chance" Doctrine.^^ — A doctrine which is found in the text of a leading work on the law of negligence has been echoed by the courts in two or three decisions, and I have ventured to call it the ''last clear chance" doctrine. It is this : "The party who has the last opportunity of avoiding accident, is not excused by the ""Ante, § 236; Hanlon v. Missouri Keim v. Union R. &c. Co., 90 Mo. &c. R. Co., 104 Mo. 381; 16 S. W. 314; s. c. 7 West. Rep. 148. Rep. 233; Duncan v. Missouri &c. R. "Hanlon v. Missouri &c. R. Co., Co., 46 Mo. App. 198; Cincinnati &c. 104 Mo. 381, 389; citing Rlne v. Chi- R. Co. v. Kassen, 49 Otiio St. 230; cago &c. R. Co., 88 Mo. 392; Maher s. c. 27 Oliio L. J. 383; 12 Rail. & v. Atlantic &c. R. Co., 64 Mo. 267; Corp. L. J. 78; 31 N. B. Rep. 282; Bergman v. St. Louis &c. R. Co., 88 Downey v. Cliesapeake &c. R. Co., Mo. 678; Kelly v. Missouri &c. R. 28 W. Va. 732; DufEy v. Missouri &c. Co., 101 Mo. 67. R. Co., 19 Mo. App. 380 ; s. c. 2 West. "^ Hanlon v. Missouri &c. R. Co., Hep. 198; Donohue v. St. Louis &c. 104 Mo. 381, 389. R. Co. (Mo.), 6 West. Rep. 851; a This section is cited in § 477. 229 1 Thomp. Neg.J contributoey negligence. negligence of any one else. His negligence, and not that of the one first in fault, is the sole proximate cause of the injury.""" Stated •otherwise, the doctrine is that where both parties are negligent, the one that had the last clear opportunity to avoid the accident, notwith- standing the negligence of the other, is solely responsible for it, — his negligence being deemed the direct and proximate cause of it."' In expounding this doctrine, and applying it to the case of a man killed by a train on a railway track, the Supreme Court of Korth Carolina, speaking through Avery, J., say: "The admitted test rule to which we have adverted, that he who has the last clear chance, notwith- standing the negligence of the adverse party, is considered solely re- sponsible, must be applied, in contemplation of the law which pre- scribes and fixes their relative duties. The law, as settled by two lines of authorities, here imposes upon the engineer of a moving train the duty of reasonable care in observing the track; and if, by reason of his omission to look out for cows, horses, and hogs, he fails to see a drunken man, or reckless boy asleep on the track, it can not be denied that he is guilty of a dereliction of duty. If he is guilty of a breach of duty, we can not controvert the propositions which necessarily fol- low from the admission that, but for such omission, or if he had taken advantage of the last clear opportunity to perform a duty imposed by law, the train would have been stopped and a life saved.""* § 241. Prior Negligence of Plaintiff and Subsequent Negligence of Defendant.^ — But the practitioner is concerned to know the conclu- sions of the courts, rather than the views of writers. The writer is of opinion that the weight of judicial authority in England and America justifies the following statements: — 1. The rule of concur- ring negligence, as foiTaulated in the language used in the first sec- tion of this chapter, is generally applied where the negligent act or omission of the plaintifl: and that of the defendant were contempo- raneous. 2. The qualification of this general rule, as first announced in Davies v. Mann, and afterwards formulated in the rule that the plaintiff's negligence will not bar a recovery of damages where it is but a remote cause of the injury, is generally applied in cases where the negligent act or omission of the plaintiff preceded that of the de- fendant in point of time. As so applied, the rule is frequently stated thus: Notwithstanding the previous negligence of the plaintiff, if, "'1 Shear. & R. Neg., 5th ed., § 99. Co., 117 N. C. 616, 635; s. c. 30 L. <" Thompson v. Salt Lake Rapid R. A. 257; 23 S. E. Rep. 264; opinion Transit Co., 16 Utah 281; s. c. 52 by Avery, J. Pac. Rep. 92; 40 L. R. A. 172; 10 a This section is cited in §§ 245, Am. ■i Eng. R. Cas. (N. S.) 563. 266, 382, 477, 1284, 1292. °» Pickett V. Wilmington &c. R. 230 CONTRIBUTORY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. at the time when the injury was committed, it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages resulting from it.^* § 242. Illustration in Case of Person Injured on Eailway Track and Subsequently Allowed to Bleed to Death, — This may be illus- trated by a case where A. goes upon the track of the railroad, and is there killed by a passing train. The servants of the company find the body of A. upon the pilot of the engine, in a helpless and appar- ently lifeless condition. They remove it from this, and lock it up in a warehouse at night. On opening the warehouse in the morning, it is found that A. has come to life, has crawled some distance from where he was left, and has finally died from the hemorrhage of an artery which had been severed by the collision. Here it was held that the widow of A. might recover damages. Assuming that A. was negligent in straying upon the track, and in not getting out of the way of a passing train, and that the servants in charge of the train were not negligent in running over him, their subsequent negligence in suffering him to bleed to death, and not his negligence in getting run over, was the proximate cause of his death.'" § 243. Illustration in Case of Cattle Killed on Railway Track.^ — This principle is appealed to by those courts which hold that, al- though a farmer negligently 'suffers his cattle to run at large near an imfenced railway-track, and they stray upon the track and are run over by a passing train, their owner may recover damages if the serv- ants of the company in charge of the train could have avoided run- ning over them, by the exercise of ordinary care. The farmer being negligent in suffering his cattle to run at large, and the engine-driver being negligent in not stopping his train or using other precautions instead of running over them, the plaintiff succeeds in his suit on the ground that the negligence of the defendant was a proximate °° See opinion of Lord Penzance in v. Wfrman, 2 C. B. (N. S.) 739; Radley v. London &c. R. Co., 1 App. Sullivan v. Louisville Bridge Co., 9 Cas. 754; 2 Thomp. Nag., 1st ed., p. Bush (Ky.) 81, 90; Lock v. First 1108; Davies v. Mann, 10 Mess. & Division &c. R. Co., 15 Minn. 350; W. 545; s. c. 2 Thomp. Neg., 1st ed.. Northern Central R. Co. v. Price, 29 1005; Radley v. London &e. R. Co., Md. 420; Kenyon v. New York &c. L. R. 9 Exch. 71; s. c. 43 L. J. Exch. R. Co., 5 Hun (N. Y.) 480; Balti- 73; 1 App. Cas. 754 (reversing L. R. more &c. R. Co. v. Trainor, 33 Md. 10 Exch. 100); 44 L. J. Exch. 73; 33 542; Meyers v. Chicago &c. R. Co., L. T. (N. S.) 209; Haley v. Earle, 59 Mo. 223. See Paducah &c. R. Co. 30 N. Y. 208; Trow v. Vermont &c. v. Hoehl, 12 Bush (Ky.) 41. R. Co., 24 Vt. 487; Cummins v. Pres- "Northern Central R. Co. v. Price, ley, 4 Harr. 315; Austin v. New Jer- 29 Md. 420. sey Steamboat Co., 43 N. Y. 75; Tuff a This section is cited In § 892. 231 1 Thomp. Neg.] contributory negligence. cause of the injury, and his negligence but a remote cause.''^ Other courts hold that the owner of the cattle can not, in consequence of his own contributory negligence, recover.'^ In still other jurisdictions, it is held that it is not negligence, as matter of law, for the owner of cattle to suffer them to run at large near the track of an unfenced railway.''^ § 244. Other Illustrations. — A. negligently suffers his jack to es- cape from his enclosure. The jack strays upon the land of B. B.'s servants tie him to a tree, in such a manner that he dies during the night. B. must pay damages to A., for A.'s negligence in suffering the animal to escape was but a remote cause of his loss, while the negligence or malice of B.'s servants was the proximate cause.''* A farmer's grain is consumed by sparks from a locomotive; the prox- imate cause of the injury is the negligence of the railway company in leaving combustible matter on their track, and not the negligence .of the farmer in leaving grass and stubble standing in his field.^^ A. throws a log of wood overboard in a harbor, and it sinks to the bot- tom. Afterwards B., unlawfully and without his consent, removes A.'s vessel from the dock at which it is lying, and leaves it lying in the stream above the log. At low tide, A.'s vessel settles on the log and is injured. B. must pay damages to A., for the act of B., and not the act of A., was the proximate cause of the injury.'" § 245. Prior Negligence of Plaintiff and Subsequent Unlawful Act of Defendant. — If the doctrine of a preceding section''' can be re- garded as sound, then, for reasons at least as strong, it must be con- cluded that if, through his own negligence a person exposes himself to injury, and another person or corporation subsequently through the violation of a valid statute or ordinance, kills or injures him, — the latter must pay damages. Thus, in an action against a railroad " Kerwhacker v. Cleveland &c. R. This question is, however, decided Co., 3 Ohio St. 172; s. c. 1 Thomp. hoth ways, according to the policy Neg., 1st ed., 472; note, 497; Rich- of different jurisdictions. The suh- mond v. Sacramento Valley R. Co., ject will be fully considered in the 18 Cal. 351; Locke v. First Division next volume. &c. R. Co., 15 Minn. 350; Cleveland '* McCoy v. California &c. R. Co., &c. R. Co. V. Elliott, 4 Ohio St. 475; 40 Cal. 532. Trow V. Vermont &c. R. Co., 24 Vt. "Byram v. McGuire, 3 Head 494; Ishell v. New York &c. R. Co., (Tenn.) 530. 27 Conn. 393, 407. " Flynn v. San Francisco &c. R. " Munger v. Tonawanda &c. R. Co., Co., 40 Cal. 14. 4 N. Y. 349; Terry v. New York &c. '= Satterly^ v. Hallock, 5 Hun (N. R. Co., 22 Barb. 574; Horricks v. Y.) 178. In the report in 5 Hun (N. Phila. &c. R. Co., I Phila. 28; Hal- Y.) only an abstract of the case is loran v. New York &c. R". Co., 2 E. D. given, not fuller than that given Smith (N. Y.) 257; Mentges v. New above. York &c. R. Co., 1 Hilt. (N. Y.) 425. "^ Ante, § 241. 232 CONTRIBUTORY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. company for damages for negligently causing the death of plaintiff's minor son, while the evidence showed negligence on the part of the deceased in going upon the track without looking or listening for the train, which he could have seen or heard had he looked or listened, — yet, where it also tended to show that, notwithstanding such negli- gence, the injury to him could have been avoided if a municipal ordi- nance had been observed by defendant, in having a man stationed on top of the car to give danger signals, as therein provided, — the liabil- ity of defendant was for the jury.'^^ § 246. Application of the Foregoing Doctrines in Case of Tres- passers Exposing Themselves to Danger.^ — It must be kept in view that many, and possibly the majority of the courts, apply a severer rule in the ease where the person killed or injured is a trespasser on the premises of the defendant. Here, according to the view under consideration, the limit of the obligation of the defendant is to re- frain from intentionally or wantonly injuring him after discovering his exposed situation.'® This doctrine is applied by many courts (though denied by others) to trespassers upon railway tracks,^" — a subject which the author intends to treat specially in the next vol- ume, iloreover, it has been well reasoned that, after a trespasser is seen upon the track, by the men in charge of a train, they may act upon the presumption that he will step aside to avoid injury, unless it is obvious, that owing to his situation, or circumstances over which he had no control, he could not extricate himself from the danger which menaced him.*^ § 247. What if the Defendant's Wrong was Willful.— Some courts have held, that if the negligence of the plaintiff contributes prox- imately to the injury, the defendant can not be held liable unless his negligence was the result of a wanton or willful act.*^ This princi- ple has been applied to actions for injuries sustained by persons while unlawfully on the track of the railroad company. In such cases it has been said that the law insists upon a clear track. If, therefore, a " Bergman v. St. Louis &c. R. Co., *° Maumus v. Champion, 40 Cal. 88 Mo. 678; s. c. 4 West. Rep. 594; 121; Carroll v. Minnesota Valley R. Bckert v. St. Louis &c. R. Co., 13 Co., 13 Minn. 30; Griggs v. Fleck- Mo. App. 352. enstein, 14 Minn. 81; New Jersey a This section is cited in §§ 204, Express Co. v. Nichols, 33 N. J. L. 948. 434, 439 (affirming s. c. 32 N. J. L. '"Post, § 946, et seq. 166); Brownell v. Flagler, 5 Hill "'WoodrufC V. Northern Pac. R. (N. Y.) 282; Wynn v. Allard, 5 Co., 47 Fed. Rep. 689; Blanchard v. Watts & S. 524; Vandegrift v. Redi- Lake Shore &c. R. Co., 126 111. 416. ker, 22 N. J. L. 185, 189. " St. Louis &c. R. Co. V. Monday, 49 Ark. 263. 233 1 Thomp. Neg.] contributory negligence. man plants himself on the rail, he must not expect the law to do more for him than to punish wanton injury. If he be injured from the ordinary prosecution of the company's legalized business, he is to blame his own rashness and foUy.^^ But, as already seen, this is not the generally received doctrine. After discovering such a trespasser on its track, the servants of the railroad company must exert such care as the circumstances reasonably admit of to avoid running him down.^* Still less will it be justified in inflicting upon him a wanton injury.*^ It should be added that the doctrine of contributory neg- ligence has no application to willful and malicious injuries,^" except that the person injured can not recover compensatory damages which he has enhanced by his subsequent negligence, as elsewhere ex- plained.'^ For example, contributory negligence is no defense to an action for assault and battery.^^ § 248. "Whether the Plaintiff's Negligence must have "Directly" Contributed to the Injury.^ — In a celebrated judgment of the Court of Exchequer Chamber, it was held — other parts of the charge being unexceptionable — that it did not constitute a misdirection to tell the jury that it was for them to say whether the negligence of the plaint- iff "directly" contributed to the misfortune. It was contended for the defendant, that whether the plaintiff contributed directly or in- directly to the injury made no difference, if he contributed at all. But the court thought, having reference to the evidence, and taking the whole summing-up together, that it was not likely to have misled the jury.^^ In a case in ISTew York, where the plaintiff's intestate had been run over and killed by the defendant's horse-cars, under cir- cumstances of clear negligence on his part exactly concurring in point of time with the negligence of the defendant's servant, if any existed, it was held a misdirection to tell the jury that, in order to exempt the defendant, the negligence of the plaintiff must have contributed "directly" to the injury. Some of the judges, however, placed the judgment on other grounds.^" In a later case, where the aciaon was for damages growing out of the fact that the plaintiff's intestate had "^ Railroad Co. v. Norton, 22 Pa. negligence to which the plaintiff's St. 465, per Woodward, J. negligence could contribute. An ^Ante, §§ 236, 238, et seq. assault and battery is not negli- »= Schumaker v. St. Louis &c. R. gence. The former is intentional; Co., 39 Fed. Rep. 174; s. c. 17 "Wash, the latter is unintentional." L. Rep. 550. ^ This section is cited in § 1296. ^Ante, § 206, et seq. »»Tuff v. Warman, 5 C. B. (N. S.) ''Ante, § 201; post, §§ 251, 252. 573 (affirming s. c. 2 C. B. (N. S.) »=Ruter V. Foy, 46 Iowa 132. 740). Adams, J., said: "There can be no ""Button v. Railroad Co., 18 N. Y. contributory negligence except where 248. the defendant has been guilty of 234 CONTEIBUTOKY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. been run over and killed by a steam railway-train, it was held (quot- ing Tuff V. Warman, supra) that the use of the word "directly" was not misleading.*^ § 249. Collateral Violations of law.a — The fact that the plaintiff is engaged in violating the law does not prevent him from recovering damages of the defendant for an injury which the defendant could have avoided by the exercise of ordinary care, unless the unlawful act contributed proximately to produce the injury.'^ But the plaintiff can not recover where he derives his title to maintain his action from his own breach of the law.°^ This rule has already been illustrated by a class of decisions to the effect that if the vehicle of A. comes into collision with that of B. in the highway, the fact that A. is at the time driving on the wrong side of the road will not, as matter of law, prevent him from recovering damages of B., but will be a circum- stance to go to the jury on that question.®* On the same principle, one who places his wagon transversely across the street in order to load it, instead of lengthwise as required by an ordinance of the city, is not, by reason of thus violating the ordinance, restrained from re- covering damages from one who drives into him negligently.*^ The courts, however, have not been uniform in applying this rule. It has been held not to apply in case of a violation of a by-law of a corpora- tion, such as a bridge company, of which the person injured had neither actual nor constructive notice.*® Some of the New England courts, as we have already seen, have denied its application in case of suits for injuries received while travelling on Sunday.*' The Su- preme Court of Georgia, while denying the doctrine of these cases, has ruled that an employe of a railway company, injured while the train on which he was serving was engaged in transporting troops and munitions of war for the Confederate States, could not recover dam- ages against the company if he was voluntarily so engaged "for the purpose of making war on the government of the United States." The court held that it was a ease for the application of the maxim, "Johnson v. Railroad Co., 20 N. "Gregg v. Wyman, 4 Cush. Y. 65. (Mass.) 322; Way v. Foster, 1 Allen a This section is cited in §§ 82, (Mass.) 408; Woodman v. Hubbard, 102, 1326. 25 N. H. 67; Phalen v. Clark, 19 '^ Ante, § 82; Chicago v. Keefe, 114 Conn. 421; Simpson v. Bloss, 7 111. 222; s. c. 1 West. Rep. 352; Spof- Taun. 246; Bosworth v. Swansey, 10 fcrdv. Harlow, 3 Allen (Mass.) 176; Mete. (Mass.) 363. Hall v. Ripley, 119 Mass. 135 ; Welch " Spofford v. Harlow, 3 Allen V. Wesson, 6 Gray (Mass.) 305; Sim- (Mass.) 176. monson v. Stellenmerf , Edm. Sel. "• Steele v. Burkhardt, 104 Mass. Cas. 194; Aston v. 'Heaven, 2 Esp. 59. 533; Steele v. Burkhardt, 104 Mass. °° Worcester v. Essex Merrimack 59. Compare Churchill v. Rosebeck, Bridge Corp., 7 Gray (Mass.) 457. 15 Conn. 359. "Ante, § 102. H 235 1 Thomp. Neg.J contributory negligence. In pari delicto, potior est conditio defendentis et possidentis.^^ We do not see the soundness of this conclusion. A railway employe is engaged in the primary work of earning his bread. He ought not to be chargeable with fault because the master whom he serves en- gages in the furtherance of an unlawful business, any more than a printer who sets type on this book ought to be held responsible for a libel which it may contain. With better reason, another court has held that it is no defense to an action against a railroad company by one injured by a train while crossing the track, that he was going to his work in a lumber-yard kept by his employer in violation of a city ordinance. '° § 250. Contributory Negligence in Mitigation and Apportionment of Damages. — The general rule is that contributory negligence is never looked to in mitigation or apportionment of damages, except in the cases stated in the- next section, but that it is a complete defense to the action. To this rule exceptions also exist in those few States where the doctrine of "comparative negligence" has sprung up. For instance, the Supreme Court of Georgia, which, as elsewhere stated,^"" has partially adopted the doctrine of "comparative negligence," al- lows the jury to balance the fault of the parties to the accident, and to consider the plaintiff's share of the fault in mitigation of the dam- ages. If, in a given case, the jury should come to the conclusion that both parties were in fault, but the defendant slightly more so, so as to give the plaintiff a cause of action, but small damages would be awarded. ^'"- In the official syllabus to a later case decided by the same court, ^"^ the rule is thus laid down: "If it appears that both parties were guilty of negligence, and that the person injured could not, by ordinary care and diligence, have avoided the consequences to himself of the negligence of the [railway] company or its agents, he may recover; but the jury shall lessen the damages in proportion to the negligence and want of ordinary care of the injured person."^"^ This is the rule reached by the Supreme Court of Georgia, under the statutes of that State, where the suit is by an employe of a railway company for an injury received by the negligence of another em- ™ Wallace v. Cannon, 38 Ga. 199. should suffer reduction in propor- °° Pennsylvania Co. v. Frana, 112 tion to the fault of the person in- Ill. 398. jured. ^<"Post, § 268. ^ In Georgia, as in Ohio and Kan- "" Flanders v. Meath, 27 Ga. 358, sas, the head notes of the cases in 362; Atlantic &c. R. Co. v. Wyly, 65 the official reports are prepared by Ga. 120. See Macon &c. R. Co. v. the judges. Winn, 26 Ga. 250, where Benning, J., "^Atlanta &c. R. Co. t. Ayers, 53 (dissenting), argued, with much Ga. 12. force, that the damages awarded 236 CONTRIBUTORY NEGLIGENCE'. PROXIMATE CAUSE. [2d Ed. ploye.^"* Under a statute of Tennessee/"^ providing that, in every ease of non-observance of certain precautions to be observed by rail- roads for the prevention of accidents, the railroad shall be liable for the damages, contributory negligence is not a bar to an action, al- though entitled to consideration in mitigation of damages.^"^ § 251. Plaintiflf can not Hecover Enhanced Damages by Reason of his Subsequent Negligence.^ — To the general rule that contributory negligence is not looked to for the purpose of enhancing or apportion- ing the damages, there is obviously this exception : if the injury pro- duced by the plaintiff's negligence is capable of a distinct separation and apportionment from that produced by the defendant's negli- gence, it should be excluded by the jury in estimating the damages, and they may assess against the defendant those damages which flowed separately from his aet.^°^ The rule, stated in another way, is, that the person injured is not entitled to recover for any enhancement of damages produced by his own want of care.^°* To illustrate: A. has been injured by B. B. must pay to A. those damages which proximately and naturally flow from the injury done by him, but not those damages which flowed from the subsequent negligence or fault of A., — as, in disobeying the advice of his physician, or the like. The reason is that the negligence of A., and not the negligence of B., is the proximate cause of those enhanced damages. In seeming disre- gard of this principle it was held in the English Court of Exchequer that a person who is guilty of negligence whereby injury happens to another can not set up as a defense that a part of the mischief would not have arisen if the person injured had not himself been guilty of some negligence.^ °° A seeming misapplication of this principle is found in a case in lowa,^^" where, while the plaintiff was proceeding down a street of Council Bluffs with a drove of horses and mules, some of them became entangled in the defendant's telegraph-wire, which had fallen down, causing him damages. The court below charged the well-settled law in regard to contributory negligence : "If you should find from the testimony that the plaintiff, by the exercise of ordinary diligence and care, could not have prevented the injury, he would not "°* Campbell v. Atlanta &c. R. Co., a This section is cited in §§ 247, 53 Ga. 488. Contra, Thompson v. 453, 633, 910, 941, 1276. Central R. Co., 54 Ga. 509, 512, 513. '" Thomas v. Kenyon, 1 Daly (N. ""Tenn. Code (Thomp. & S.), § Y.) 132. 1167. "« Compare ante, § 201, et seq. "" Chesapeake &c. R. Co. v. Foster, '^ Greenland v. Chaplin, 5 Exch. 8? Tenn. 671, 680; s. c. 13 S. W. Rep. 243. 694; 14 S. W. Rep. 428. See also ""Wright v. Illinois &c. Tel. Co., Nashville &c. R. Co. v. Nowlin, 1 20 Iowa 196, 213. Lea (Tenn.) 523. 237 1 Thomp. Neg.] contributory negligence. be prevented from recovering in this action, notwithstanding he may have been guilty of negligence." The Supreme Court, while holding this instruction correct, held that it ought to have been qualified by adding, that, "although not prevented from recovering, he would not be entitled to recover for any enhancement of his damages by reason of his own want of care." "To illustrate by this case," continued the court, "suppose it was careless and negligent for the plaintiff to take so many horses and mules with only one assistant (as the proof tends to show), when he should have had three, and that the eight horses led by one man would have run against and become entangled in the wire if led by two men, yet if, by reason of having but the one man to manage them after they became thus entangled, the horses suffered more injury and damage than they would if there had been two men to eight horses, the plaintiff ought not to recover for such excess of damage." The answer to this misapplication of doctrine seems to be found in the statement of doctrine that "the law has no scales to de- termine, in such cases, whose wrong-doing weighed most in the com- pound that occasioned the mischief."^ ^^ § 252. Illustrations of this Doctrine.^ — When, therefore, by the negligence of the defendant, noxious gases were generated in his busi- ness and allowed to escape upon the adjoining premises of the plaint- iff, rendering them unwholesome, it was held to be no defense that the plaintiff, by the negligent management of his own business, pro- duced other noxious odors on his premises, which contributed to ren- der them unwholesome — it not appearing that the odors from the de- fendant's premises acquired their noxious character from the com- bination, or that they were not independent in their operation. ^^^ Thus, A.'s ferry-boat strands against B.'s bridge. B., in removing it, injures it, and leaves it a wreck. A. can not elect to abandon the boat and recover the full value of the boat of B., but A. can recover of B. the valueiof the boat, less the value of the wreck.^^^ So, where cattle are injured by a railway company, if it appears that the animals were fit for beef, and were not so injured as to be of no value for food, it has been held to be the duty of the owner to dispose of them to the best advantage; he can not abandon them wantonly, and then claim their full value. The criterion of damages in such a case is the dif- ference between the value of the cattle as injured and their value be- fore the injury.^^* A. negligently empties water upon B.'s premises ^" Ante, § 170, et seq. ^ Mark v. Hudson River Bridge a This section is cited in §§ 247, Co., 56 How. Pr. (N. Y.) 108. 453, 910, 941. '"Illinois &c. R. Co. v. Finnigan, "2 Brown v. Illius, 27 Conn. 84, 21 III. 646; Toledo &c. R. Co. v. 91, Parker, 49 111. 385. 238 CONTRIBUTOKY NEGLIGENCE: PROXIMATE CAUSE. [2d Ed. and into B.'s cellar. B. is bound to use reasonable care to prevent injury from the water; and for any loss which he might have pre- vented by the exercise of reasonable care, he can not recover dam- ages.^ ^^ A municipal corporation, by the negligent manner in which it grades its streets, turns surface-water upon the land of A. If A. could have prevented this injury "at a moderate expense, and by ordi- nary efforts," he can not recover damages of the said city.^^" It is erroneous, in such a case, to tell the* jury that the plaintiff can recover "unless a slight expense and slight effort would have prevented the injury."^^^ A railroad company fails to put in cattle-guards at a point where the road enters the enclosed land of A., although required to do so by a statute. In consequence of this, cattle get into the field of A. and destroy his crops. If A. could have kept the cattle out by ordinary efforts and at a moderate expense, it was his duty to do so; but he was not required to incur large expense or make constant efforts in order to do so.^^^ A fence of A. is burned down by fire communicated from a locomotive of a railroad company. In conse- quence of this, A.'s horse strays upon the track and is killed. A. can not recover damages of the company, for it was his duty to repair his fence. The company were bound to pay him the value of the fence, but owed him no duty to repair it. 'Sot could he idly suffer the fence to go unrepaired, and charge the company consequential damages re- sulting from it.^^* A. takes down a division-fence between his field and that of B. Afterwards B. sows a crop of wheat in his field, and cattle get in, and injure it. A. is not liable to B. for this damage, on the principle that "where one has been guilty of some unlawful act or neglect which may cause injury to others, all others are still bound to use ordinary care and prudence to avoid the injury, and if they do not, they can not recover."^^" A. is guilty of negligence which results in a physical injury to B. A. must answer to B. for all the damages which naturally flow from this injury, not for those damages which result from a subsequent negligence of B., — such as an aggravation of "'Chase v. New York &c. R. Co., reasonable care; but ordinary care 24 Barb. (N. Y.) 273; Douglas v. and reasonable care are generally Stephens, 18 Mo. 362; Simpson v. understood to be equivalent terms, Keokuk, 34 Iowa 568. See also and are constantly used in apposi- Loker v. Damon, 17 Pick. (Mass.) tion with each other. 284; Davis v. Fish, 1 G. Greene ""Simpson v. Keokuk, 34 Iowa (Iowa) 406. In this case it was 568. held error to tell the jury that B. ™ nid. was bound to use only ordinary care "^ Smith v. Chicago &c. R. Co., 38 and diligence to prevent injury from Iowa 518. the water. It was ruled that the "" Terry v. New York &c. R. Co., jury should have been instructed 22 Barb. 574. that the plaintiff was bound to use "° Hassa v. Junger, 15 Wis. 598. 239 1 Thomp. Neg.] contributoey negligence. the wound by reason of the fact that B. was imprudent, and failed to follow the advice of his physician.^^^ § 253. Defendant liable for Increasing Damage Produced by Plaintiff's Negligence, Misfortune, etc. — On somewhat similar grounds, although A. may have erected his building on wet and spongy soil, and allowed water to stand in his cellar, this will not justify the act of B., his adjoining neighbor, in so constructing his house that the roof easts water upon the wall of A., injuring its foundation. It is not negligence, — so reasons the court, — in any proper sense of the term, for a person to erect a building on foundations not calculated for great endurance. If the building is on his own land, he has a perfect right to erect it so that it shall stand for a single year only, if it shall please him to do so. His doing so can give no other person, not endangered by his building, a right to invade his premises, and to destroy, or assist in the destruction of, the building in a less time. Nor can any one question his right to let water stand in his cellar, unless it creates a public nuisance, or a private nuisance to his neigh- bor. The injury thereby caused is his own concern, and his neighbor has no more right to add to it by a wrongful act of his own than he would have to commit a like injury upon the premises of one who took better care of his building. Any other doctrine would detract greatly from the rights of private ownership, and place owners of property, in many cases, at the mercy of adjacent proprietors. The poor man whose roof was found going to decay might have it destroyed without remedy by the heedlessness of his neighbor; and the man who had built of wood might be set at defiance by one who had carelessly de- stroyed his building because he was negligent in not building of brick or stone. It is impossible to predict where such a doctrine would lead ; but it. certainly would end in destroying the sanctity of private property.^^^ § 254. Private Abatement of Nuisances : Liability for Destroying Property Negligently or Unlawfully Exposed. — Closely allied to the doctrines considered in this chapter is the rule that although a person places his property in the public highway, or in a navigable stream, so that it constitutes a nuisance, yet this does not warrant its destruction by one to whom the nuisance occasions no special damages. Thus, A. builds his wharf into the river beyond low-water mark, so that it is a nuisance to the navigation. This does not excuse B. in running upon it with his vessel, if there was room for his vessel to pass with reason- '" See Lawrence v. Housatonic R. "^ Underwood v. Waldron, 33 Co., 29 Conn. 390. Mich. 232. Opinion by Cooley, C. J. 240 CONTRIBUTORY NEGLIGENCE : PROXIMATE CAUSE. [2d Ed. able convenience.^-^ So, although A. has planted a bed of oysters in the channel of a public navigable stream, this will not justify B. in running his vessel against it, if there is room for his vessel to pass without so doing; for a private individual can not abate a nuisance if he is not injured by it other than as one of the general publie.^^* The reader will perceive the close connection between these cases and that of Davies v. Mann,^^^ where the property which was injured was an ass fettered in the highway. § 255. Death or Injury to A. Brought About by A.'s Own Act Su- perinduced by the Wrongful Act of B. — Although the death or injury of a person may be immediately produced by his own act, — ^yet if his act was the necessary, legal, or natural consequence of the original wrongful act of another person, that other will be answerable in dam- ages for it.^^° The usual illustration of this principle is furnished by the case where A. acts erroneously under an impulse of sudden fear produced by a catastrophe caused by the negligence of B., whereas, if he had acted diiferently he would not have been hurt, — in which case the negligence of B. in bringing about the catastrophe, and not the negligence of A. in acting erroneously, is regarded as the proximate cause of the injury sustained by A.^^' »^ Dimes v. Petley, 15 Q. B. 276. Thomp. Neg., 1st ed., p. 1105. •"Colchester v. Brooke, 7 Q. B. '=' Jones v. Louisville &c. R. Co., 339. 82 Ky. 610. '='10 Mees. & W. 545; s. c. 2 ^" Ante, §§ 80, 81, 197. VOL. 1 THOMP. NEG.— 16 241 1 Thomp. Neg.] contributory negligence. CHAPTER X. COMPARATIVE NEGLIGENCE. Section 259. Doctrine of "comparative negli- gence" generally denied. 260. Denied in New York. 261. Denied in Pennsylvania. 262. Denied in Iowa. 263. Denied in Nebraska, Alabama, Kansas, Colorado, Indiana, Texas. 264. No longer the law in Illinois, Contributory negligence bars action unless defendant's wrong was willful, or inten- tional. Doctrine tbat contributory neg- ligence does not bar a recov- ery wbere defendant's wrong was wanton, willful or reck- less. Doctrine that slight negligence will not bar a recovery. Doctrine in Georgia as to com- parative negligence. Rule of comparative negligence in Illinois. Origin of the rule. Advantages of the rule. Rule does not apply where the person injured was not in ex- ercise of ordinary care. 265. 266. 267. 268. 269. 270. 271. 272. Section 273. Judicial expressions of the doc- trine. 274. Not enough that negligence of defendant was greater than that of plaintiff. 275. Disadvantages to the plaintiff of the rule. 276. If plaintiff's negligence was "gross," defendant's must have been "willful." 277. Plaintiff negligent, but defend- ant failed to use ordinary care to avoid injuring him. 278. No recovery where parties in equal fault. 279. Nor where negligence of plaint- iff was greater than that of defendant. 280. Rule ought to apportion the damages. 281. Cases illustrating the rule. 282. Instructions under the rule. 283. When comparative negligence a question for the jury. 284. Burden of proof as to compara- tive negligence. 285. Doctrine of comparative negli- gence in Kansas. 286. Admiralty rule apportioning the damages. § 259. Doctrine of "Comparative Negligence" Generally De- nied.^ — The rules already given involve a denial of the doctrine of "comparative negligence" which obtains in two or three States.^ On a This section is cited in § 86. ^ O'Keefe v. Chicago &c. R. Co., 32 Iowa 467; Artz v. Chicago &c. R. Co., 38 Iowa 293; Wilds v. Hudson River R. Co., 24 N. Y. 430; Marble 242 V. Ross, 124 Mass. 44; s. c. 5 Repor- ter 596; Matta v. Chicago &c. R. Co., 69 Mich. 109; s. c. 37 N. W. Rep. 54; 13 West. Rep. 717; Hurt v. St. Louis &c. R. Co., 94 Mo. 255; s. c. 13 West. COMPARATIVE NEGLIGENCE. [2d Ed. the contrary, they necessarily lead to the conclusion that although the negligence of the defendant was gross, yet if the plaintifE was guilty of a want of ordinarj' care, contributing to the injury, he can not recover damages of the defendant; for the term "gross negli- gence" does not import malice or wantonness.^ And where both par- ties have been guilty of negligence, the law will not undertake to ap- portion the degrees of negligence between them, but if the plaintiff or injured person was guilty of any negligence which proximately con- tributed to produce the injury, there can be no recovery unless the defendant's conduct was willful or amounted to an intentional wrong.^ In view of what has preceded,* beyond question a better statement of the doctrine is that where the person injured has been guilty of negligence directly contributing to the injury, there can be no recovery, unless the injury could have been avoided by the defend- ant after he had notice of the exposed situation of the person in- jured,' — or, according to still another doctrine, after he might, by the exercise of reasonable care, have acquired notice of it.° § 260. Denied in New York. — "The right to recover damages for this class of injuries to the person," said Gould, J., "whether asserted by the party injured, or by his representatives under the statute, de- pends upon two concurring facts: First, The party claimed to have done the injury must be chargeable with some degree of negligence, if a natural person, — if a corporation, with some degree of negligence on the part of its agents or servants; Second, The party injured must have been entirely free from any degree of negligence which con- tributed to the injury, — i. e., of any negligence without which the in- jury would not have happened. These essential elements of such a cause of action are as absolutely distinct from and independent of each other as are the two opposing parties; and each and both must be, by itself, in the ease, upon the evidence, or there can be no re- covery. The question presented to the court or the jury is never one of comparative negligence, as between the parties ; nor does very great Rep. 233, 237; 7 S. W. Rep. 1; Bast Turner v. Fort Worth &c. R. Co. Tennessee &c. R. Co. v. Aiken, 89 (Tex. Civ. App.), 30 S. W. Rep. Tenn. 245; s. c. 14 S. W. Rep. 1082; 253, (not off. rep.); Atchison &c. East Tennessee &c. R. Co. v. Hull, R. Co. v. Henry, 57 Kan. 154; s. c. 88 Tenn. 33; s. c. 41 Am. & Eng. 45 Pac. Rep. 576. R. Cas. 495; 12 S. W. Rep. 419; ^ State v. Lauer, 55 N. J. L. 205; East Tennessee &c. R. Co. v. Gurley, s. c. 20 L. R. A. 61; 47 Alb. L. J. 12 Lea (Tenn.) 55; Richter v. Har- 394; 26 Atl. Rep. 180. per, 95 Mich. 221; s. c. 54 N. W. Rep. '■Ante, § 235. 768. 'Eastburn v. Norfolk &c. R. Co., 'Neal V. Gillett, 23 Conn. 437; 34 W. Va. 681; s. c. 12 S. E. Rep. Atkyn v. Wabash R. Co., 41 Fed. 819. Rep. 193, 198; s. c. 23 Ohio L. J. 151; "Ante, § 239. 243 1 Thomp. Neg.] contributory negligence. negligence on the part of a defendant so operate to strike a balance as to give a judgment to a plaintiff whose own negligence contributed in any degree to the injury. It is true that some of the reported cases of this kind of action use in a very uncertain manner the terms 'gross negligence/ 'ordinary negligence/ 'ordinary' or 'common prudence/ and similar terms. But, however applicable such terms may be to the cases of bailment of property, and between the different well- known classes of such bailors and bailees, it is difficult to see how they have strictly and legally any application to cases like the one under consideration. No element of fraud (or quasi-havid) or willfulness enters into the cause of action.^ The law says to the defendant: If you have by simple negligence caused this injury, so far as j'ou are concerned the ground of action is complete. At the same time it says to the plaintiff: Although so far as the defendant's acts are con- cerned the case is made out, you can not prevail if you have by your simple negligence helped to bring about the injury."^ § 261. Denied in Pennsylvania. — As is seen by the cases already cited, the Supreme Court of Pennsylvania repudiates in strong, lan- guage the doctrine of comparative negligence ; yet, in a case which is greatly quoted on certain points, where a steamboat moored to a wharf belonging to the city of Pittsburgh had been sunk, in consequence of the negligence of the city in suffering a quantity of iron to remain on the wharf an unreasonable length of time, it was held that although both parties had an equal opportunity to see the danger, they were not bound to equal degrees of vigilance. The city was responsible for extreme care of the wharf; the owners of the boat were responsible only for that common prudence which would keep it clear of a mani- fest peril." But the doctrine of that court is and always has been that if the negligence of the plaintiff or person injured contributed in any degree to produce the injury, the plaintiff can not recover.^" An instruction which told the jury that if the negligence of the plaint- iff contributed in any material degree to the accident, he could re- cover, was accordingly held erroneous. Eeverting to the rule just stated, the court, speaking through Paxson, J., said : "This is a safe rule, easily understood, and can not well be frittered away by the jury. But if we substitute the word 'material' for the word 'any,' we prac- tically abolish the rule, for a jury can always find a way to avoid it. The rule itself is valuable and rests upon sound principles. We are not disposed to allow it to be undermined."^^ ' Citing Wells v. New York &c. R. = Pittsburgh v. Grier, 22 Pa. St. Co., 24 N. Y. 181. 54. » Wilds V. Hudson &c. R. Co., 24 ^^ Ante, § 170. N. Y. 430, 432. " Monongahela City v. Fischer, 244 COMPARATIVE NEGLIGENCE. [2d Ed. ^ 262. Denied in lowa.^ — The Supreme Court of Iowa has repudi- ated the same doctrine in a case involving the following facts: A. gets drunk, and lies down upon a railroad track. An engine ap- proaches at the rate of about three miles an hour. The engine has its head-lantern broken, so that it displays no head-light, but two men are standing with lanterns in the cab, holding them so as to throw light forward as far as possible. The engine runs over A. and kills him, no one seeing him. Under these facts, it is error to instruct the jury that the railroad company are liable for the death of A., unless its servants could have known, with the exercise of ordinary caution, that A. was lying on the track. It was sufficient to tell them that no damages could be recovered unless they knew of his lying there. The instruction given was deemed to involve the doctrine of comparative negligence, which did not prevail in this particular court. ^^ § 263. Denied in Nebraska, Alabama, Kansas, Colorado, Indiana, Texas.'' — The doctrine of comparative negligence is almost denied in Nebraska; but the rule there is "that if a person, himself in the exercise of ordinary care, is injured through the negligence of an- other, he may recover; but if his own negligence contributed to, or was the proximate cause of the injury, he can not recover."^^ The courts of that State recognize no degrees of negligence; but they do recognize the doctrine that, although the plaintiff may have, by his negligence, brought himself into a situation of danger, yet if the defendant, through his failure to exercise ordinary care after discov- ering the dangerous situation of the plaintiff, injured him, the plaint- iff may recover damages.^* The doctrine of comparative negligence does not obtain in Colorado; but, in conformity with the general doctrine, the rule in that State is that, "the plaintiff can not prevail if his own negligence contributed to the injury, and without which it would not have happened."^' It has also been denied in Kansas,^' in Alabama,^ ^ in Texas, ^' and in Indiana.^* Ill Pa. St. 9, 14; s. c. 56 Am. Rep. 680; s. c. 74 N. W. Rep. 50; Cul- 241. This judge — who afterwards bertson v. HoUiday, 50 Neb. 229; s. resigned his office to become the re- c. 69 N. W. Rep. 853. ;eiver of a railroad, an office evi- " Culbertson v. Holliday, 50 Neb. dently better suited to his talents 229; s. c. 69 N. W. Rep. 853. and inclinations — overlooked the "Denver Tramway Co. v. Reid, fact that a rule to which juries are 22 Colo. 349, 363; s. c. 45 Pac. Rep. uniformly opposed ought, for that 378. reason, to be regarded as contrary '"Atchison &c. R. Co. v. Henry, to the common sense of the justice 57 Kan. 154; s. c. 45 Pac. Rep. 576. of mankind. " Frazer v. South &c. R. Co., 81 a This section is cited in § 217. Ala. 185 (examining its former deci- "O'Keefe v. Chicago &c. R. Co., sions). 32 Iowa 467. Contra, on similar "Turner v. Ft. Worth &c. R. Co., facts, Nashville &c. R. Co. v. Smith, 30 S. W. Rep. 253. 6 Heisk. (Tenn.) 174. " Ivens v. Cincinnati &c. R. Co., bThis section is cited in § 285. 103 Ind. 27; s. c. 1 West. Rep. 132. " Friend v. Burleigh, 53 Neb. 674, 245 1 Thomp. Neg.J contributory negligence. § 264. No longer the Law in Illinois.^ — The doctrine of compara- tive negligence is no longer the law in Illinois;^" but the rule of other jurisdictions now obtains in that State, that in order to recover dam- ages for injuries received in consequence of the negligence of another, the plaintiff or person injured must have been in the exercise of ordi- nary care for his own safety, and his injuries must have been the result of the negligence of the defendant. ^^ On the other hand, one who is not exercising ordinary care for his own safety at the time when he is injured by another, can not recover damages from that other, although the negligence of the latter as compared with his own negli- gence, may have been gross.^^ But the courts of that State recognize the rule^^ that the negligence of the plaintiff or person injured, how- ever great, will not prevent him from recovering damages from the defendant resulting from reckless, willful or wanton acts or omis- § 265. Contributory Negligence Bars Action Unless Defendant's Wrong was Willful or Intentional.^ — Those courts which uphold the rule of contributory negligence in its ancient severity formulate it by saying that whenever the negligence of the person injured or killed supervenes, there can be no recovery of damages unless the wrong of the defendant amounted to something more than negligence, however gross, — that is to say, unless the act was purposely or intentionally done,^' or at least in a legal sense malicious. ^° It must either have been purposely or intentionally done with a design to produce injury, or it must have been done under such circumstances as that its natural and probable consequences would be to produce injury to others. ^^ This is something more than gross negligence: it has in it the element of express malice, or at least of g«ast-eriminality. "To constitute a willful injury, the act which produced it must have been intentional, or it must have been done under such circumstances as evinced a reck- aThis section is cited in §§ 217, b This section Is cited in §§ 206, 277, 297, 486. 276, 370, 383. ™ Cicero &c. R. Co. v. Meixner, '^ As in the case of an intentional 160 III. 320; s. c. 31 L. R. A. 331; shooting: Gray v. McDonald, 104 43 N. B. Rep. 823; Lanark v. Dough- Mo. 303, 313; s. c. 16 S. W. Rep. 398. erty, 153 111. 163; Pennsylvania See (Miie, § 206, e« set?.; post, § 276. Coal Co. V. Kelly, 156 111. 9; Illinois =• Louisville c&c. R. Co. v. Ader, 9 &c. R. Co. v. Ashline, 56 111. App. West. Rep. 192; 110 Ind. 376; s. c. 475; Calumet Electric Street R. Co. 11 N. E. Rep. 437; Louisville &c. R. V. Nolan, 69 111. App. 104. Co. v. Shanks, 94 Ind. 598; Neal v. ^'Kinnare v. Chicago &c. R. Co., Gillett, 23 Conn. 437; Rowen v. New 57 111. App. 153. York &c. R. Co., 59 Conn. 365; s. c. ^ East St. Louis &c. R. Co. v. 21 Atl. Rep. 1073. Craven, 52 111. App. 415. " Belt R. &c. Co. v. Mann, 107 Ind. ^Ante, § 206, et seq.; post, § 276. 89; Louisville &c. R. Co. v. Bryan, =" Wabash R. Co. v. Speer, 156 111. 107 Ind. 51. 244; s. c. 40 N. B. Rep. 835. 246 COMPARATIVE NEGLIGENCE. [2d Ed. less disregard for the safety of others, and a willingness to inflict the injury complained of. It involves conduct which is g'wasi-criminal."^' § 266. Doctrine that Contributory Negligence does not Bar a Re- covery where Defendant's Wrong was Wanton, Willful or Reck- less.^ — There is another class of cases, which, while denying the doc- trine of comparative negligence, proceeds upon the modified view that where the wrong of the defendant, although a corporation which can only act through agents, is wanton, willful, or reckless, the contribu- tory negligence of the person injured will not bar a recovery.^'' Under this rule "if the plaintiff [in his pleading'] can not set up such a com- bination of facts as show that he is free from negligence on his part, he must, by proper allegations, set up that the injury was caused by the wanton or willful negligence of the defendant, — such as in law amounts to gross negligence and reckless disregard of the conse- quences of his neglect."^" The court explained what they meant by "gross negligence" in this connection by saying: "The term gross negligence has been used in cases decided by this court, and has a definite meaning, when referred to as authorizing a recovery for a negligent injury, notwithstanding the contributory negligence of the plaintiff. It means an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or prop- erty of another. It also implies a thoughtless disregard of conse- quences, without the exertion of any effort to avoid them."^^ But the mere fact of the failure of a railroad company to give signals when its train approaches a country road crossing is not regarded as such contributory negligence as to destroy the ordinary legal effect of the contributory negligence of the person injured. ^^ This court has illustrated the subject by applying it to a catastrophe growing out of the prior negligence of the person killed or injured and the subsequent negligence of the defendant,^ ^ by supposing the case of a man on the track and say: "If the deceased had stood still and faced the train as it approached him, it would furnish no excuse to the defendant for running its engine over him and killing him, if the engineer saw he ^Louisville &c. R. Co. v. Bryan, Rep. 414; Ecliff v. Wabash &c. R. 107 Ind. 51, 53; citing Louisville &c. Co., 64 Mich. 196; s. c. 31 N. W. Rep. Canal Co. v. Murphy, 9 Bush (Ky.) 180; Hughes v. Detroit &c. R. Co., 522; Louisville &c. R. Co. v. Filbern, 78 Mich. 402; Robinson v. Flint &c. 6 Bush (Ky.) 574; Peoria Bridge R. Co., 79 Mich. 330, 331. Asso. V. Loomis, 20 111. 235. =" Denman v. Johnston, 85 Mich. a This section is cited in § 276. 387, 396; s. c. 48 N. W. Rep. 565. -° Kennedy v. Denver &c. R. Co., ^' Denman v. Johnston, supra. 10 Colo. 493; 16 Pac. Rep. 210; ^^Matta v. Chicago &c. R. Co., 69 Bouwmeester v. Grand Rapids &c. R. Mich. 109 ; s. c. 37 N. W. Rep. 54. Co., 63 Mich. 557; s. c. 30 N. W. Rep. ''Ante, § 241. 338; s. c. 67 Mich. 87; s. c. 34 N. W. 247 1 Thomp. Neg.J contributory xegligence. did not intend to get off tlic track, and there was time enough to stop the train before reaching him. Contributory negligence can not be relied upon in such a case. Xeither can it in any case where the action of the defendant is wanton, willful, or reckless in the premises, and injury comes as the result."^* A similar rule obtains in Ala- bama. "Gross negligence," it is there said, "generieally speaking would not be sufficient to overcome contributory negligence * * * unless it was negligence to a degree that was wanton, reckless or in- tentional."'^ The court also say: "Even the analogous principle, which authorizes the recovery of exemplary damages, does so only when the negligence is so gross as to raise the presumption of a con- scious indifference to consequences."^® In this State the plea of con- tributory negligence is not a defense to a complaint counting upon willful or wanton negligence. ^^ What amounts to a willful or wanton injury, within the meaning of this rule, was illustrated by saying that if an engineer in charge of an approaching railway train, "saw or knew that a person had placed himself upon a railroad track for the very purpose of being run over and killed, he could not be justified in running his engine upon such person because of the willful or inten- tional misconduct of such person."' ' On the other hand, if the en- gineer, after the discovery of the perilous situation of the person on the track, in good faith, exercised due care and diligence to avoid in- juring him, and an injury to him resulted nevertheless, it can not be said that the railroad company was guilty of simple negligence, much less of intentional or willful wrong.'"' In Florida, the rule of this subject is said to be "that when the defendant has inflicted the injury intentionally; or when he has done so unintentionally, yet his con- duct, though still within the domain of negligence, has been wanton or reckless of its injurious consequences, or, in other words, he has been guilty of what is now called, it may be, inaptly, 'willful negli- gence,' — the contributory negligence of the plaintiff is not a defense." But this is something more than "gross negligence;" and the use of =* Bouwmeester v. Grand Rapids kauff v. Morris, 66 Ala. 406; West- fee. R. Co., 63 Mich. 557; s. c. 30 N. ern Union Tel. Co. v. Way, 83 Ala. W. Rep. 338; quoted with approval 542. in Central R. &c. Co. v. Denson, 84 ^'Carrington v. Louisville &c. R. Ga. 774, 777. Co., 88 Ala. 472, 477; Louisville &c. ^"Carrington v. Louisville &c. R. R. Co. v. Markee, 103 Ala. 160, 169; Co., 88 Ala. 472, 477; s. c. 41 Am. & s. c. 15 South. Rep. 511; Alaharoa Eng. Rail. Cas. 543; 6 South. Rep. &c. R. Co. v. Frazier, 93 Ala. 45; 910; citing Bentley v. Georgia &c. Louisville &c. R. Co. v. Watson, 90 R. Co., 86 Ala. 484; Cook v. Central Ala. 68; Montgomery &c. R. Co. v. R. &c. Co., 67 Ala. 553; Eureka Co. Stewart, 91 Ala. 421; Kansas City V. Bass, 81 Ala. 200; Georgia &c. R. &c. R. Co. v. Crocker, 95 Ala. 412. Co. V. Blanton, 84 Ala. 155. =» Louisville &c. R. Co. v. Markee, ^ Carrington v. Louisville &c. R. 104 Ala. 160, 170. Co., 88 Ala. 472, 477; citing Lein- 'UMd, 172. 248 COMPARATIVE NEGLIGENCE. [2d Ed. the term "gross negligence" in a charge to a jury, will not be con- strued as having intended this extreme degree of negligence.*" So, in Georgia, although one injured by the negligence of another, might, by the use of ordinary care, have avoided the consequences of that negligence, yet if it were so gross as to amount to wanton and willful negligence, such want of ordinary care to avoid the consequences of it can be no bar to a recovery for the injury. Such a case is presented where it clearly appears that the injured person, who was deaf, though able to hear to some extent, walked on the railroad track in daylight ; and a train approached him from behind, and the trainmen could have seen him for 400 yards before reaching him; but, though he was between a blow-post and a crossing, they gave no warning by blowing the whistle or ringing the bell or otherwise, and made no effort to check the speed of the train until within a few feet of him, when the whistle was blown twice and he was struck by the train about the same time.*^ § 267. Doctrine that Slight Negligence will not Bar a Recov- ery.^ — We have already had occasion to consider the rule that the contributory negligence which bars a recovery of damages must' amount to a failure to exercise ordinary care.*^ This is a rule of the most obvious justice. It is a total repudiation of that other rule, hatched by complaisant judges for the benefit of corporations, that any degree of contributory negligence, however sligM, bars a recov- ery.*^ The rule last referred to puts a man out of court for failing to exercise great or extreme care, and exonerates the party commit- ting the injury no matter how great and inexcusable his negligence may have been. The Supreme Court of Wisconsin, in an early case, was so unfortunate as to announce this draconic rule in the following language: "Negligence, proximate or contributing to the injury, however slight, prevents recovery."** Subsequently the same court thought better of it, and, falling back on the old doctrine, applicable, if at all, to the law of bailments, of three degrees of negligence, slight, ordinary, and gross, held that slight negligence, or the failure to use great or extreme care, will not bar a recovery. In the case now under consideration, the trial court refused to instruct the jury that "slight negligence" on the part of the plaintiff which contributed directly to the injury, would prevent a recovery. "This," said Paine, J., "would "Florida &c. R. Co. v. Hirst, 30 Ga. 774; s. c. 8 Rail. & Corp. L. J. Fla. 1, 37; s. c. 16 L. R. A. 631; 52 425; 11 S. E. Rep. 1039. Am. & Eng. Rail. Cas. 409; 12 Rail. a This section is cited in § 285. & Corp. L. J. 218; 11 South. Rep. "Ante, § 171. 506. *^Ante, § 170. " Central R. &c. Co. v. Denson, 84 " Potter v. Chicago &c. R. Co., 21 Wis. 377. 249 1 Thomp. Neg.] contributory negligence. be error if the words 'slight negligence' are to be construed as equiv- alent to a slight want of ordinary care and prudence. But such is not the case. On the contrarj% negligence has long been divided into three degrees, slight, ordinary and gross. This division has some- times been criticised, like everything else, but it is well established, and seems to be based upon sound reason, and capable of practical, intelligent application by the ordinary juries of the country; and in accordance with it, slight negligence is defined to be only an absence of that degree of care and vigilance which persons of extraordinary prudence and foresight are accustomed to use. To have given the in- struction as drawn would, therefore, have been equivalent to telling the jury that such a want of care on the part of the plaintiff, which contributed directly to the injury, would have prevented a recovery. But such is not the law. To require of the most of mankind that extreme degree of care which only persons of extraordinary prudence possess, would be to require an impossibility. It would be to deliver them up to injury by the negligence, carelessness and recklessness of others, without redress. The counsel for the appellant would not contend for such a rule ; and the authorities cited by him only go to show that if there is any want of ordinary care on the part of the plaintiff, contributing directly to the injury, then the law will not attempt to measure the degree of such negligence, but will forbid a recovery. * * * It is only the want of such care that the law im- putes to plaintiffs as a fault. And that proposition being first dis- tinctly announced, courts frequently proceed to say that a slight want of such care defeats recovery. But it would by no means be proper to infer from this that it would be correct to instruct a jury that slight negligence would defeat a recovery, as an abstract proposition ; for in that form it would mean that an absence only of that extreme care which persons of great prudence and caution use would prevent a re- covery, when it is quite obvious that an absence of such care is en- tirely consistent with the exercise of such care and prudence as per- sons ordinarily exercise, and which is all that the law requires."*' Three years later the doctrine of this case was reaffirmed in all its phases by the same court, in an opinion written by the eminent Chief Justice Dixon. After pointing out and illustrating the truth that ordinary care varies in different situations, according to the risk to be run, he reaffirms the rule of the preceding case by saying "that the law does not attempt to measure how little or how greatly the plaint- iff may have fallen short of using ordinary care, but that any failure in this respect, or a slight want of such care, contributing directly to "Dreher v. Pitchburg, 22 Wis. 675, 677, 678. 250 COMPARATIVE NEGLIGENCE. [2d Ed. the injury, will forbid a recovery."*" The doctrine thus announced and reaffirmed appears to have stood in that State; for sixteen years after the last named decision the same court held it not error to re- fuse an instruction to the effect that if the plaintiff vsls guilty of slight negligence, vhich contributed to the injuries of which he com- plained, he could not recover. Said Lyon, J. : "Such is not the law. A slight want of ordinary care on the part of the plaintiff, contrib- uting proximately to cause the injury, will defeat the action, while only slight contributory negligence on his part will not."*^ While the conclusion of the court in these cases seems correct and just, the method by which it arrives at this conclusion, — not only splitting up negligence into three degrees, but subdividing one of those degrees in its turn, seems fantastical. N"or is it justified by the doctrine of any of the other courts so far as the writer knows. § 268. Doctrine in Georgia as to Comparative Negligence.^ — Dr. Wharton states that the Supreme Court of Georgia has adopted the doctrine of comparative negligence.*^ We have examined the de- cisions of that court, and are satisfied that it originally meant nothing more than to adopt and apply the rule of Davies v. Mann:*^ that not- withstanding the negligence of the plaintiff, he may recover damages if the defendant could have avoided the consequences of the plaintiff's negligence by the exercise of reasonable care. The Georgia court did no more than interpret this rule according to the effect which, as we have endeavored to show, it produces. They understood it to mean, that, where the negligence of both parties concurs in producing the accident, the defendant must pay damages to the plaintiff, provided he could have avoided the accident by the exercise of ordinary care.^" "Ward V. Milwaukee &c. R. Co., ter, 11 East 60, and Luxford v. 29 Wis. 144, 152. Large, 5 Car. & P. 421. But this " Bloor v. Delafleld, 69 Wis. 273, doctrine has been modified in later 279. cases, and in Lynch v. Nurdin, 1 Q. a This section is cited in §§ 217, B. 29, it was held that the defend- 250. ant was liable in an action on the ** Whart. on Neg., § 334. case, though the plaintiff was a tres- '"lO Mees. & W. 546; s. c. 2 Thomp. passer, and contributed to the mis- Neg., 1st ed., 1105. See the later chief by his own act. And this case case of Central &c. R. Co. v. Denson, has been followed in Robinson v. 84 Ga. 774. Cone, 22 Vt. 213, and Birge v. Gar- ^ This will be seen by following diner, 19 Conn. 507, and numerous the language of the court in the other adjudications in this country, case of Macon &c. R. Co. v. Davis, We approve of this modification of 18 Ga. 679, 686: "But it is insisted the principle, and think it ought to that if the injury in this case re- be left to the jury to say whether, suited, in whole or in part, from notwithstanding the imprudence of the misconduct of the plaintiff's the plaintiff's servant, the defend- servant, he can not recover; and ants could not, in the exercise of this seems to have been the rule reasonable diligence, have prevented laid down in Butterfield v. Forres- the collision." 251 1 Thomp. Neg.] contributory negligencb. But, sensible of the injustice of compelling the defendant to pay all the damages produced by the joint fault of himself and the plaintiff, they introduced a most reasonable and just modification of the rule, which, so far as we know, obtains nowhere else except in the courts of admiraltj', — namely, that the jury should look to the fault of the plaintiff in mitigation of damages.°^ That we have not mistaken the import of the Georgia decisions we think will be clear from an exam- ination of them. In the earliest important case on the subject in that State, it appeared that a negro boy (who was probably intoxicated, for a bottle was found on his person) driving a wagon in which were a woman and four children, approached a railroad-crossing, and, discov- ering an approaching train, rashly attempted to cross the track ahead of it, and was run over, and several of the persons in the wagon were killed or injured. Although the negligence of the boy was conceded, the whole case was put to the jury to say whether the servants of the railway company might not, by slackening the speed of the engine, have avoided the collision, the court saying: "Although it may have been rash in the boy to attempt crossing ahead of the train, but which he failed to do, probably on account of the sudden terror of his team, still, if by reason of an ascending grade and other circumstances it was in the power of the engineer to have stopped the train and pre- vented the mischief, it will be competent for the jury to make the company chargeable." '^^ It is obvious here that the court did not mean to decide anything more than what was decided in the cases which they profess to follow, namely: that, the negligence of the plaintiff being the remote cause of the injury, and that of the defend- ant the immediate or proximate cause, the plaintiff may recover. Ac- cordingly, in another ease growing out of the same accident, the court reaffirmed the doctrine which they had previously laid down,°^ that, notwithstanding the defendant was in fault, the plaintiff is not en- titled to recover if by exercising ordinary care he could have avoided the injury.^* This rule, as we have endeavored to show in a former section,^° directly contradicts the rule laid down in Macon, etc., Rail- way Company v. Davis/^ and the two, standing together, make non- sense. Nevertheless the Georgia court endeavored to reconcile them in the language quoted in the note below. ^^ In another case in the " Ante, § 170. Ion of the court, in Macon &c. R. Co. "^ Macon &c. R. Co. V Davis, 18 Ga. v. Winn, 19 Ga. 440, 442, said: 679. "This court held, in Brannan v. »= Brannan v. May, 17 Ga. 136. May, 17 Ga. 136, that,* notwithstand- " Macon &c. R. Co. v. Winn, 19 Ga. ing the defendant was in fault, the 440. plaintiff was not entitled to recover, " See ante, § 223. if in the exercise of ordinary dili- "' Atite, § 234. gence he could have avoided the in- " Lumpkin, J., in giving the opin- jury; and that, too, where the plaint- 252 COMPARATIVE NEGLIGENCE. [2d Ed. same State, the counsel for the defendant requested the court to charge the jury as follows : "In an action against a railroad company to recover damages for injuries sustained in consequence of the negli- gent running of railroad-cars, in order to warrant a recovery by plaintiff it must appear that the defendant's agents were guilty of iff was wholly innocent. A fortiori, can he not recover if he be at fault himself, provided he could, in the exercise of ordinary diligence, have escaped the mischief. Is this sound law? In Butterfield v. Forrester, 11 East 60, Lord Ellenbrough said: 'A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail him- self of it, if he do not himself use common and ordinary caution to be in the right.' And the reported cases in support of this doctrine are overwhelming. Flower v. Adams, 2 Taun. 314; Clay v. "Wood, 5 Bsp. 44; Mahew v. Boyce, 1 Stark. 423; Riddle v. Merrimack Locks &c. Co., 7 Mass. 169; Lane v. Crombie, 12 Pick. (Mass.) 177; Thompson v. Bridgewater, 7 Pick. (Mass.) 188; Harlow v. Humiston, 6 Cow. 191; Bush V. Brainard, 1 Cow. (N. Y.) 78; Noyes v. Morristown, 1 Vt. 3E3 ; Chap- lin V. Hawes, 3 Car. & P. 554; Pluck- well V. Wilson, 5 Car. & P. 375; Sut- ton V. Clarke, 6 Taun. 29; Jones v. Boyce, 1 Stark. 493; Wordsworth v. Willan, 5 Esp. 273; Steele v. West- ern Inland Lock Nav., 2 Johns. (N. Y.) 283; Lebanon v. Olcott, 1 N. H. 339; Bridge v. Grand Junction R. Co., 3 Mee. & W. 244; Davies v. Mann, 10 Mee. & W. 546; Beers v. Housatonic R. Co., 19 Conn. 566; s. c. 2 Am. Rail. Cas. 114; Vennall v. Garner, 1 Cromp. & M. 21. Many of these cases are cited in Wheaton's edition of Selwyn's Nisi Prius; and the principle is adopted in the text, that to entitle a plaintiff to an ac- tion for damages for an obstruction, he must show that he acted with common and ordinary caution. And the same rule holds in cases of neg- ligence in the management of ships whereby a loss accrues. Luxford v. Large, 5 Car. & P. 421; Handaysyde V. Wilson, 3 Car. & P. 528; Vennall V. Garner, 1 Cromp. & M. 21. The case of Washburn v. Tracy, 2 D. Chip. 136, is a strong case upon this point. There it was held that, 'if but for the want of ordinary care In the plaintiff in his use of the road the injury would not have happened, the verdict should be for the defend- ant, notwithstanding he also was negligent.' Spencer v. Utica &c. R. Co., 5 Barb. (N. Y.) 337, decides the precise question before us. In that case it was held by the Supreme Court of New York, that in an action' on the case against a railroad com- pany, to recover damages for inju- ries sustained in consequence of their negligently running their train of cars against the plaintiff's wagon while he was crossing the railroad track, in order to warrant a recovery it must appear that the defendant's agents were guilty of negligence, and that the plaintiff was himself free from negligence or fault. And Mr. Justice Gridley, in delivering the opinion of the court, says: 'It was equally neces- sary for the plaintiff to establish the proposition that he himself was without negligence and without fault. This is a stern and unbend- ing rule, which has been settled by a long series of adjudged cases, which we can not overrule if we would.' Citing Bush v. Brainard, 1 Cow. (N. Y.) 78; Brown v. Max- well, 6 Hill (N. Y.) 592; Rathbun V. Payne, 19 Wend. (N. Y.) 399; Harlow v. Humiston, 6 Cow. (N. Y.) 189; Brownell v. Flagler, 5 Hill (N. Y.) 282. Indeed, the circuit judge admits the principle, but fell into the fatal error, as we conceive, of restricting the use of ordinary dili- gence on the part of the plaintiff to the point of time when the carriage was on the track, and when the driver seems, from the evidence, to have applied the whip vigorously to urge the mules forward, but in vain; whereas he should have made it cover the whole transaction, from the commencement to the termina- tion of the catastrophe. The only authority which seems to be in op- position to the principle contained in Brannan v. May, supra, is con- tained in a short passage in Buller's Nisi Prius, 26, which is in these words: 'If a man lay logs of wood 253 1 Thomp. Neg.J contributory negligence. negligence, and that the plaintiff himself, and his servant, were free from negligence or fault. It is necessary for the plaintiff to estab- lish the proposition that he himself, and his servant, were without negligence and without fault." This the court declined to give, but charged "that the defendants are bound for reasonable care and dili- gence in running their cars, and a departure from the rules of run- ning is a want of such care and diligence; that when the plaintiff is chiefly in fault, he can not maintain an action; where the parties are equally in fault, he can not maintain an action; but that though the plaintiff he somewhat in fault, yet if the defendants have been guilty of gross negligence he may maintain an action." The Supreme Court held that the refusal to give the instruction asked was not error, and that the instruction given was a correct enunciation of the rule estab- across a highway, though a person may with care ride safely by, yet if by means thereof my horse stumble and fling me, I may bring an action.' But the criticism of Chief Justice Parker upon this citation shows that it is not repugnant to the prin- ciple of the great current of English and American cases upon this sub- ject; and that the meaning is, that notwithstanding a person using due care may possibly pass the obstruc- tion without injury, nevertheless if one is injured, — that is, if one who uses this care does, by misfortune, suffer from the obstruction, — he may recover. And the learned judge further shows that the cases cited by Duller from Cro. James and Carthew do not support his posi- tion, if he meant to say that a man might recover for an injury by an obstruction, without showing ordi- nary care on his part. Is there any conflict between Brannan v. May and the Macon &c. R. Co. v. Davis? We do not perceive it. The two may, and do, well stand together. To illustrate: Suppose the company and Mrs. Winn were both in fault, the railroad in running at a speed beyond schedule time in approach- ing this crossing, and Mrs. Winn in using a driver who, from the use of liquor or some other cause, re- fused to obey her command when she directed him to stop; and sup- pose the defendants could but did not stop their train to avoid the collision, when they saw the car- riage of the plaintiff approaching dangerously near, she using all proper diligence to prevent the con- 254 tact, — in that case the decision in The Macon &c. R. Co. v. Davis would have its effect, and the plaintiff would be entitled to recover. But again: Let it be assumed that both are primarily negligent, as we have just stated, and the railroad puts forth all reasonable exertion to escape the disaster, but Mrs. Winn, observing no such care, madly rushes on to the collision, — in this case, the ruling in Brannan v. May, supra, would take effect, and the plaintiff could not recover. Instead of repugnance, we see nothing but harmony. It is but the application of the same rule to both parties. It presents no impracticable issue to the jury, but will work in every imaginable case justly and well. We believe it to be a useful and salu- tary principle, that in order to en- title a party to damages, he must not be, directly nor indirectly, the author of his own wrong.- He must not voluntarily incur the injury of which he complains; and not to pre- vent it by ordinary care is to court it." The judgment was reversed because the judge refused to charge that "if the plaintiff and defendant were both found to be negligent, and the plaintiff could have avoided the effect of the defendant's negli- gence in the use of ordinary dili- gence, and did not, ihen the defend- ant is not liable." On a subsequent trial, another special jury returned a verdict for the same sum as before (?7,000), and, the law having been laid down to the jury to the satis- faction of the Supreme Court, this judgment was affirmed. 28 Ga. 250. COMPARATIVE NEGLIGENCE. [2d Ed. lished by the decisions which we have already set out, namely, "that, although the plaintiff be somewhat in fault, yet if the defendant be grossly negligent, and thereby occasioned or did not prevent the mis- chief, the action may be maintained." ^^ In an expression on the sub- ject by the Georgia court, — an action against a municipal corpora- tion for damages sustained by a traveller in falling through a hole in one of its bridges, — the following charge to the jury was sustained: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence (if the evidence shows negligence on the part of the defendant), the plaintiff will not be en- titled to recover; but if the plaintiff did use ordinary care, and if, while in the use thereof, by reason of the defendant's negligence, he sustained injury, the defendant will not be relieved although the plaintiff may in some way have contributed to the injury."^* We do not think that these two cases justify the statement that the doctrine of "comparative negligence," as it is understood in Illinois and Kan- sas, has been adopted in Georgia, unless such a conclusion can be in- ferred from the single case of Augusta &c. Railroad Company v. Mc- Elmurry, already cited. Taking them altogether, it would rather be inferred that they leave the question unsettled and undetermined. § 269. Rule of Comparative Negligence in IlUnois.^ — The doctrine of comparative negligence, as it formerly obtained in Illinois, was not left in a state of confusion and uncertainty, as it seems to be in Geor- gia. On the contrary, it is reduced to a definite formula, which may be stated thus : If, on comparing the negligence of the plaintiff with that of the defendant, or the negligence of the person injured with that of the person inflicting the injury, the former is found to have been slight in comparison with the latter, and the latter gross in com- parison with the former, the plaintiff may recover,"" provided always "* Augusta &c. R. Co. v. McEl- cage &c. R. Co. v. Murray, 62 111. murry, 24 Ga. 75. 326; Toledo &c. R. Co. v. Spencer, ™ Rome V. Dodd, 58 Ga. 238. 66 111. 528; Illinois &c. R. Co. v a This section is cited in §§ 176, Maffit, 67 111. 431; Chicago &c. R 272, 285, 297, 1047. Co. v. Van Patten, 64 111. 510; Rock "» Galena &c. R. Co. v. Jacobs, 20 ford &c. R. Co. v. Hillmer, 72 111 111. 478; Chicago &c. R. Co. v. 235; Pittsburgh &c. R. Co. v. Knut Dewey, 26 111. 255; Chicago &c. R. son, 69 111. 103; Illinois &c. R. Co Co. V. Gretzner, 46 111. 74; Chicago v. Cragin, 71 111. 177; Chicago &c &c. R. Co. v. Triplett, 38 111. 482; R. Co. v. Lee, 68 111. 576; s. c. 60 111 Ortmayer v. Johnson, 45 111. 469; 501; St. Louis &c. R. Co. v. Manly Ohio &c. R. Co. v. Shanefelt, 47 111. 58 111. 300; Chicago &c. R. Co. v 497; Chicago &c. R. Co. v. Sweeney, Coss, 73 111. 394; Toledo &c. R. Co 52 111. 325; Kerr v. Forgue, 54 111. v. O'Connor, 77 111. 391; Kewanee 482; Chicago &c. R. Co. v. Gregory, v. Depew, 80 111. 119; Schmidt v 58 111. 272; Chicago &c. R. Co. v. Chicago &c. R. Co., 83 111. 405; Illi- Dunn, 61 111. 385; Indianapolis &c. nois Central R. Co. v. Brookshire, R. Co. V. Stables, 62 111. 313; Chi- 3 111. App. 225. 255 1 Thomp. Neg.] contkibutory negligence. that the negligence of the plaintiff was slight in point of fact, that is, he was in the exercise of ordinary care, although possibly not of extraordinary care."^ The rule does not mean that the plaintiff's neg- ligence must be slight when judged by the standard of ordinary care, and that the defendant's negligence must be gross when judged by that standard; but it means that in order that the plaintiff may re- cover, although guilty of contributory negligence, it must not only appear that the defendant's negligence is gross, and that of the plaintiff but slight, but that they are so when compared with each other.* ^ It should therefore be constantly borne in mind that the words "gross" and "slight" as applied to this subject are to a great extent relative terms. On this subject it was observed by a distin- guished judge: "Some acts of negligence doubtless are so trifling, and others so aggravated in their character, as to be properly denom- inated slight or gross when subjected to any comparison. But there are other acts which may properly be regarded as slight when compared with acts of negligence of a very much grosser and more aggravated character, and which, when compared with the most trifling failure to exercise the utmost care, would hardly come within the proper mean- ing of that term. The doctrine of comparative negligence is founded upon a comparison of the negligence of the plaintiff with that of the defendants. This element of comparison is of the very essence of the rule. It must not only appear that the negligence of the plaintiff is slight, and that of the defendants gross, but also that they are so when compared with each other.'"'^ § 270. Origin of the Rule. — It would be unprofitable to discuss at length the origin and reason of a rule which is so well settled and clearly defined in that jurisdiction, and which is not likely to be adopted in any other State where it does not now prevail,"* u.nless by legislation. As in case of the so-called rule in Georgia, it had its '•■Ante, § 18, et seq.; Tudor Iron "'Quinn v. Donovan, 85 111. 194; Works V. Weber, 31 111. App. 306; Illinois &c. R. Co. v. Hammer, 85 Terre Haute &c. R. Co. v. Voleker, 111. 526; Chicago &c. R. Co. v. Dim- 31 111. App. 314; Chicago &c. R. Co. ick, 96 111. 42; Moody v. Peterson, V. Langley, 2 111. App. 505; Chi- 11 111. App. 180; Pittsburgh &c. R. cago &c. R. Co. V. Dimick, 96 111. Co. v. Shannon, 11 111. App. 222; 42; Chicago &e. R. Co. v. Krueger, Peoria &c. R. Co. v. Miller, 11 111. 23 111. App. 639; s. c. aff'd in 124 App. 375. 111. 457; s. c. 14 "West. Rep. 364; 17 » Moody v. Peterson, 11 111. App. N. E. Rep. 52; Chicago &c. R. Co. 180, 185; opinion by Bailey, J. V. Dillon, 17 111. App. 355; Lake (afterwards a distinguished judge Shore &c. R. Co. v. O'Conner, 115 of the Supreme Court of Illinois). 111. 254; Calumet &c. Steel Co. v. "'A modified expression of the Martin, 115 111. 358; Chicago &c. R. rule obtains in Kansas, as will be Co. V. Johnson, 116 111. 206; s. c. 2 seen by the next section. West. Rep. 388. 256 COMPARATIVE NEGLIGENCE. [2d Ed. origin in a misunderstanding of the effect of previous decisions. It arose from the fact of the court mistaking the distinction between the degree of care or of negligence in the act or omission which preceded the injury, and the propinquity of sucli act to the injury. It mistook causation for negligence. It mistook the rule that the plaintiff may recover where his negligence was but a remote cause of the injury, and that of the defendant a proximate cause of it, for a rule that he may recover where his negligence was slight and that of the defendant gross. We have already pointed out this distinction, and shown the general rule to be, that to disentitle the plaintiff from recovering two things must concur: 1. A want of ordinary care on his part. 2. A proximate connection between this want of ordinary care and the in- jury.^ ^ It was by confusing these two things that the Supreme Court of Illinois fell into the rule in question. ^^ § 271. Advantages of the Rule. — There is this to be said in favor of such a rule: it obviates all perplexing inquiries as to whose negli- gence was the proximate and whose the remote cause of the injury. This question, as is well known, is generally put to the jury, and per- sons acquainted with jury trials know equally well that there are few juries capable of understanding a subject so much involved in meta- physics and speculation. It is as idle to expect juries to understand such questions as to understand the degrees of homicide. In either case, nothing more can be fairly expected of them than verdicts which roughly embody the prevailing views of justice and right ; and instruc- tions formed in accordance with a simple rule like that of the Illinois "Ante, §§ 171, 216. tiff; that is to say, the more gross " In the case in which this rule the negligence manifested by the ■was first declared (Galena &c. R. defendant, the less degree of care Cq v. Jacobs, 20 111. 478), after re- will be required of the plaintiff to viewing a number of decisions, none enable him to recover. Although of which announced such a rule as these cases do not distinctly avow that in question, Mr. Justice Breese this doctrine in terms, there is a expressed the conclusion of the court view of it very perceptible running asfollows: "It will be seen from these through very many of them, as, cases that the question of liability where there are faults on both sides, does not depend absolutely on the ab- the plaintiff shall recover, his fault sence of all negligence on the part being to be measured by the defend- of the plaintiff, but upon the rela- ant's negligence, the plaintiff need five degree of care, or want of care, not be wholly without fault, as in as manifested by both parties, for Raisin v. Mitchell, 9 Car. & P. 613, all care or negligence is at best but and Lynch v. Nurdin, 1 Q. B. 29. We relative, — the absence of the highest say, then, that in this, as in all like possible degree of care showing the cases, the degrees of negligence must presence of some negligence, slight be measured and considered; and as it may be. The true doctrine, wherever it shall appear that the therefore, we think, is, that in pro- plaintiff's negligence is compara- portion to the negligence of the de- tively slight, and that of the defend- fendant should be measured the de- ant gross, he shall not be deprived gree of care required of the plain- of his action." 20 111. 496. VOL. 1 THOHP. NEG. — 17 257 1 Thomp. Neg.] conteibutoky negligence. court are probably as well adapted to secure this result as any other. Moreover it is possible that the Supreme Court of Illinois has been logical in blending together the two elements of care and causation. As already seen,"'' an act or omission is deemed the proximate cause of a subsequent injury resulting from it, when the circumstances were such that the person responsible for the act or omission ought to have foreseen that it would produce the injury which it did produce. Such an act or omission is deemed the proximate cause of the resulting in- jury just in proportion as this probability increases or diminishes."* The conclusion follows that the negligence of the person guilty of the careless act or omission is in exactly the same proportion. If the act is one that will probably lead to a serious injury, the negligence of the person committing it is gross. If it is one that will not probably lead to such an injury, the negligence of the person committing it is slight. Is the Illinois rule, then, anything more than a better way of stating a rule stated by all courts ? § 272. Bule does not Apply where Person Injured was not in Exer- cise of Ordinary Care.^ — But this rule does not rest merely upon a comparison of the negligence of the plaintiff with that of the defend- ant. For example, as observed by Mr. Justice Bailey in language quoted in a preceding section,"" it does not mean merely that, as com- pared with the negligence of the defendant, that of the plaintiff must have been slight, but it also means that it must have been slight when judged by an ordinary standard of comparison, that is, that it must have been slight in fact. The rule no more excludes the plaintiff from the duty of exercising ordinary care for his own safety or that of his property, than does the rule in those jurisdictions where the doctrine of comparative negligence does not prevail. On the other hand, it refuses to shut the door of justice in his face because he has failed to exercise extraordinary care,'"' which is the same as saying that he may recover where his negligence is sligM in fact, and also slight in comparison with the negligence of the defendant, which is gross; and this, as we have seen, is the rule in some jurisdictions where the so-called doctrine of "comparative negligence" does not obtain.''^ The Illinois rule, then, starts out with the predicate that the plaintiff himself was in the exercise of ordinary care ; and where "Ante, §§ 50, 57. a This section is cited in §§ 277, "' "An act that may be grossly neg- 282. ligent if it proximately contributes ^'' Ante, § 269. to the injury may be reasonably "Lake Shore &c. R. Co. v. O'Con- careful if it only remotely contrib- nor, 115 111. 254, 262. utes thereto." Valentine, J., in "i.w*e, § 170. Union Pacific R. Co. v. Rollins, 5 Kan. 167, 182. 258 COMPAEATIVE NEGLIGENCE. [2 Willard v. Swansen, 126 111. 381 ; Co. v. Dewey, 26 111. 255; Chicago s. c. 18 N. B. Rep. 548. &c. R. Co. v. Pondrom, 51 111. 337; "Earlville v. Carter, 2 111. App. 34. Chicago &c. R. Co. v. McGinnis, 71 "Thus, in Chicago &c. R. Co. v. 111. 346; Chicago &c. R. Co. v. John- Gretzner, 46 111. 74, 83, that learned son, 103 111. 512; Toledo &c. R. Co. justice, after quoting several of the V. Cline, 135 111. 41; s. c. 25 N. E. decisions of that court on the sub- Rep. 846; 45 Am. & Eng. Rail. Cas. ject, said: "These cases establish the 150; aff'g on this point 31 111. App. doctrine of comparative negligence 563; Illinois &c. R. Co. v. Trow- and hold there must be fault on the bridge, 31 111. App. 190; Chicago &c. part of the defendant, and no want R. Co. V. Bentz, 38 111. App. 485; of ordinary care on the part of the 259 1 Thomp. Neg.] contributory negligence. case, Mr. Justice Lawrence, in applying the doctrine in an action for damages caused by a collision between a traveller and a railroad train, declared that "no inflexible rule can be laid down. Each case must depend upon its own circumstances, and the question of com- parative negligence must be left to the jury, under the supervision of the court.'" ^ In another case, Mr. Justice Walker gave his under- standing of the rule as follows : "The rule of this court is that negli- gence is relative, and that the plaintiff, although guilty of negligence which may have contributed to the injury, may hold the defendant liable if he has been guilty of a higher degree of negligence, amount- ing to willful injury. The fact that the plaintiff is guilty of slight negligence does not absolve the defendant from the use of care and reasonable efforts to avoid the injury. The negligence of the plaintiff does not license the defendant to wantonly or willfully destroy the plaintiff's property. Bach party must be held to the use of reason- able efforts to avoid the injury, and the negligence of the one party does not absolve the other from diligence and caution."^® Subse- quent cases have carefully limited the rule in the terms which we have stated at the outset, — ^namely, that the plaintiff is excused only in those cases where, in comparison with that of the defendant, his negli- gence was slight, and the defendant's gross, and where the plaintiff's negligence was also slight ■when judged by ordinary standards of comparison. § 274. Not Enough that Negligence of Defendant was Greater than that of Plaintiff. — Such being the Illinois rule, it is plain that it means something more than that the plaintiff can recover where the defendant has been guilty of greater or more negligence than the plaintiff. In other words, while both parties have been guilty of negligence, the mere preponderance of negligence against the deifend- plaintiff; and where there are faults he has been guilty of a higher de- on both sides, the plaintiff may in gree of negligence in producing the some cases recover, — as, where it injury; that slight negligence on the appears that his negligence is slight, part of the plaintiff does not absolve and that of the defendant gross; a defendant from the use of care, and this rule holds even where the and of all reasonable efforts to avoid slight negligence of the plaintiff in the injury; it does not license him some degree contributed to the in- to destroy the plaintiff's property, jury. Coursen v. Ely, 37 111. 338; Testing this case by the rule here Chicago &c. R. Co. v. Hogarth, 38 laid down, the negligence on the 111. 370; Chicago &c. R. Co. v. Trip- part of the defendants must be so lett, 38 111. 482; Illinois &c. R. Co. much greater than that of the V. Simmons, 38 111. 242. So, in the plaintiffs as to put them in default." case of St. Louis &c. R. Co. v. Todd, ™ Chicago &c. R. Co. v. Triplett, 36 111. 409, the doctrine of the Jacobs 38 111. 482, 489, and reiterated by case was reasserted : that negligence Breese, C. J., in Chicago &c. R. Co. was relative, and although the plaint- v. Sweeney, 52 111. 325, 331. iff has been guilty of negligence, " St. Louis &c. R. Co. v. Todd, 3S he may hold the defendant liable if 111. 409, 414. 260 comp'arative negligence. [2d Ed. ant will not make him liable.*" Therefore, an instruction was errone- ous which told the jury that, although the plaintifE, by his own negli- gence, may have in some degree contributed to the injury, yet if the negligence of the defendant was of a higher degree, or was much greater than that of the plaintiff, that the negligence of the latter was slight in comparison, the plaintifE might recover.*^ For similar rea- sons it has been held error to tell the jury that the plaintifE can re- cover unless he was guilty of more^^ carelessness or greater^^ negli- gence than the defendant. § 275. Disadvantages to the Plaintiff of the Rule. — The rule of "comparative negligence," as it obtains in Illinois, is generally criti- cised as being too favorable to the plaintifE; a careful scrutiny of it will show that it is more favorable to the defendant than the rule which obtains in many other jurisdictions which deny the doctrine of comparative negligence. The general doctrine of the courts has already been made clear, that the plaintifE is never turned out of court on the ground of his contributory negligence where he has exer- cised ordinary care, which is tantamount to saying that he vsdll not be turned out of court merely because he has failed to exercise extraor- dinary care, or has been guilty of slight negligence.®* According to that general doctrine, if the plaintifE has exercised ordinary care, but has failed to exercise extraordinary or great care, — in other words, has been guilty of slight negligence or inattention, he may neverthe- less recover, provided the defendant has been guilty — not of gross negligence, nor of gross negligence in comparison with that of the plaintifE — but of simple negligence, and failure to exercise ordinary or reasonable care. The Illinois rule is the same as to the contribu- tory negligence of the plaintifE: It exacts no more of him than the exercise of ordinary care : It does not turn him out of court because he has failed to exercise extraordinary or great care, or in other words, because he has been guilty of slight neglect. But in order to allow him to recover from the defendant the damages which he has *> Chicago &c. R. Co. v. Dimick, Donahue, 75 111. 106, 109. In Illi- 96 111. 42. nois &c. R. Co. v. Middlesworth, 43 " Chicago &c. R. Co. v. Dimick, 111. 64, Mr. Justice Walker errone- 96 111. 42. ously expresses the rule to be that '^Chicago &c. R. Co. v. Dunn, 61 the plaintiff, guilty of contributory 111. 385. negligence, can not recover unless it "^ Illinois &c. R. Co. v. Maffit, 67 appear that the defendant has been 111. 431; Chicago &c. R. Co. v. Van guilty of negligence more gross than Patten, 64 111. 510; Chicago &c. R. that of the plaintiff. Further on in Co. V. Mock, 72 111. 141; Illinois &c. his opinion, the learned judge R. Co. V. Hammer, 72 111. 347; Chi- speaks of "unreasonable negligence" cago &c. R. Co. V. Lee, 68 111. 576; s. on the part of the plaintiff, c. 60 111. 501; Chicago &c. R. Co. v. ^Ante, §§ 171, 172, 173. 261 1 Thomp. Neg. J contributory negligence. suffered through the defendant's wrong, it requires him to show that the defendant was guilty of what may, in many cases, be more than simple negligence — a negligence which is "gross" in comparison with the negligence of the plaintiff. The rule, to be entirely logical and just, ought to measure the obligation of the defendant by the same standard as that of the plaintiff. It requires the plaintiff to exercise ordinary care ; it ought therefore to require the defendant to exercise the same degree of care. It follows that if the plaintiff, in the events that led up to the accident, was in the exercise of ordinary care, and the defendant was not in the exercise of the same degree of care, the plaintiff ought to recover without reference to the answer to the ques- tion whether, in comparison v/ith the slight negligence of the plaintiff, the negligence of the defendant was "gross." In many cases, the negligence of the defendant may not be "gross" in comparison with that of the plaintiff, and yet it -might amount to a want of ordinary care, where the plaintiff's negligence might be slight only and not involve a want of ordinary care, — in which ease the plaintiff would be deprived of a recovery, whereas he would recover in jurisdictions where this doctrine of "comparative negligence" does not obtain.*' §276. If Plaintiff's Negligence was "Gross," Defendant's must have been "Willful."^ — In accordance with a doctrine elsewhere stated,*^ we find it laid down in Illinois that if the conduct of the person injured amounted to gross negligence there can be no recovery unless that of the person inflicting the injury was willful or crim- inal. ^^ There is language in a subsequent ease which indicates an understanding that a want of ordinary care is synonymous with gross negligence. "There are," said Mr. Justice Scott, "and can be, no degrees of gross negligence. The cases all go to the length of hold- ing, where a party has been injured by a want of ordinary care, no action will lie unless the injury is willfully inflicted by the defend- ant." The language is obiter. The point really adjudged was that it was error to add to an instruction the qualification, "unless the '' In this connection the reader is 111. App. 664. Similarly, in another invited to peruse the learned opinion case, it is there ruled that if the of Mr. Justice Scholfield, in Calumet plaintiff was guilty of slight negli- Iron &c. Co. v. Martin, 115 111. 358. gence, in order to recover he must In that case the ruling in substance show that the defendant was guilty is that a plaintiff who is even guilty of gross or wanton negligence or of slight negligence may recover of that the injury was willfully in- a defendant who has been guilty of flicted: Winchester v. Case, 5 111. gross negligence, or whose conduct App. 486. has been wanton and willful. Both of a This section is cited in §§ 264, these conditions may exist, where 265. the plaintiff is guilty of negligence, »" Ante, §§ 206, et seq., 265, 266. before he can recover: North Chi- " Illinois &c. R. Co. v. Hethering- cago Rolling Mill Co. v. Monka, 4 ton, 83 111. 510. 262 COMPARATIVE NEGLIGENCE. [2d Ed. negligence of the defendant was greater than the plaintiff's."*' But it is clear from what has preceded that if the negligence of the plaint- iff amounts even to a failure to exercise ordinary care, in order to a recovery, that of the defendant must be of a grade amounting to wantonness or criminality.*" § 277. Plaintiff Negligent, but Defendant Failed to Use Ordinary Care to Avoid Injuring Him. — The doctrine of contributory negli- gence as formerly established in Illinois seems to have involved a repudiation of the rule elsewhere established,"" that, although the plaintiff must have been negligent in exposing himself or his prop- erty to injury, yet if the defendant, seeing or knowing the exposed situation of the one or the other, nevertheless, through a failure to exercise ordinary care, inflicts an injury upon either, the plaintiff may recover damages; though it seems to have involved an essential modification of it in favor of the defendant. If, in the first place, the plaintiff can not recover if he failed to exercise ordinary care in so exposing himself or property, in which case, as is already seen,'^ the doctrine of comparative negligence does not apply, — unless to this extent the courts abandon the doctrine of "comparative negligence" and fall back upon the just conception of other courts that, although the plaintiff may have been guilty of a want of ordinary care, yet this was not the proximate or juridical cause of the injury. Some cases in that State disclosed a tendency to do this. Thus in one ease it was said by Mr. Justice Scott: "Where the plaintiff is guilty of negli- gence, to defeat a recovery it must nevertheless appear that the de- fendant used all reasonable care to avoid the injury. The fact that the party has been guilty of negligence does not authorize another to inflict a willful injury, or to omit all reasonable precautions to avoid it."»2 § 278. No Recovery where Parties in Equal Fault. — Under this rule, as under the ordinary rule, where the parties stand in pari delicto, there can be no recovery. Therefore, where a railroad train approached a highway-crossing without giving the statutory signals, and the plaintiff approached the sanie point, driving a drove of cattle, and his son warned him that he thought he heard a train coming, and the plaintiff, disregarding the warning, decided to attempt to rush the cattle across the track, and some of them were run over, it was ** Chicago &c. R. Co. v. Lee, 68 "'Chicago &c. R. Co. v. Donahue, 111. 576, 580. 75 111. 106, 108. Similar language ''Ante, § 208. was used by the same judge in St. =" Ante, § 230, et seq. Louis &c. R. Co. v. Manly, 58 111. "Ante, § 272. 300, 306; ante, § 264. 263 1 Thomp. Neg.] contributory negligence. held that he could not recover damages, because he and the defendant rere in equal fault.^^ § 279. Nor where Negligence of Plaintiff was Greater than that of Defendant. — So, where the plaintiff left his horse standing un- attended in the street, and the employes of a telegraph company, in handling a broken wire, struck him, whereby he became frightened, ran away and killed himself, the negligence of the plaintiff was deemed so much greater than that of the defendant that he could not recover."^ § 280. Rule Ought to Apportion the Damages. — Under this rule, the negligence of both parties may combine to produce the injury; the negligence of the person injured may operate as a factor in pro- ducing the injury, but it is excluded as a factor in measuring the damages. The plaintiff's negligence, or that of the person on account of whose injury he sues, helps in some degree to produce the injury, but the defendant must bear all the damages. It would be better, it would seem, to adopt the doctrine which prevails in Georgia, and where the negligence of the person injured was not so great as to bar a recovery altogether, to direct the jury to look to it in mitigation of damages."^ § 281. Cases Illustrating the Eule. — Where a railway-fireman, leaning out of the side window of his locomotive in the night-time, was struck and killed by a machine called a "mail-catcher," it was held a case for damages under the rule."" In another case the plaintiff was walking, in the night-time, on what had been a public highway, just outside the limits of the city, and which was still allowed to be used as a thoroughfare, although the defendant railroad company operated a dummy engine there. The dummy was running at the rate of twelve or thirteen miles an hour, and the engineer, seeing the defendant on the track, rang the bell, when he stepped off the track, but immediately stepping back, was struck and killed. It was held that the negligence of the servants of the company, if there was any negligence on their part, was not gross in comparison with the negligence of the defendant, and that there could be no recovery. °^ ^ Ohio &c. R. Co. V. Eaves, 42 111. »= Central &c. R. Co. v. Newman, 288. For a similar application of 94 Ga. 560; s. c. 21 S. B. Rep. 219. the rule, see Chicago &c. R. Co. v. * Chicago &c. R. Co. v. Gregory. McKean, 40 111. 218. 58 111. 272. *■ Western &c. Tel. Co. v. Quinn, °' Springfield City R. Co. v. De 56 111. 319. Camp, 11 111. App. 475. 264 COMPARATIVE NEGLIGENCE. [2d Ed. § 282. Instructions under the Eule. — Under the Illinois doctrine of comparative negligence an instruction is erroneous which leaves out the hypothesis that the plaintiff was in the exercise of ordinary care.'' For stronger reasons an instruction is erroneous which tells the jury that, although it should appear that the plaintiff's intestate was not exercising ordinary care, yet the plaintiff might recover if the negligence of the intestate was slight and that of the defendant gross in comparison with each other.^" The same rule condemns an instruction which assumes or asserts the fact that, at the time of the accident, the person killed or injured was in the exercise of ordinary care.^"" In conformity with a feature of this doctrine already con- sidered,^"^ an instruction that the plaintiff may recover unless his negligence contributing to. the injury was equal to or greater than that of the defendant, is erroneous j^"^ and so is an instruction which au- thorizes the jury to find for the plaintiff, if they find the defendant to have been guilty of a greater degree of negligence than the plaint- jg.io3 ^jj^ j^j^ instruction that "if plaintiff was guilty of some negli- gence, but defendant was guilty of gross negligence, and plaintiff's negligence was slight compared with the negligence of defendant, plaintiff might recover," was held to state correctly the Illinois rule as to comparative negligence.^"* The fundamental idea of the Illi- nois doctrine of comparative negligence is a comparison between the negligence of the plaintiff and that of the defendant, under the con- ditions and limitations already named. Therefore an instruction which leaves out of' view this element of comparison is fundamentally erroneous. ^"^ So, of an instruction which tells the jury that the plaintiff may recover, though negligent, provided his negligence is slight in comparison with that of the defendant: it should tell them that, in order to recover it must appear from the evidence that the negligence of the plaintiff is slight and that of the defendant gross in comparison with each other. Both of the elements of the proposition, namely, the slight degree of negligence of the plaintiff, and the gross negligence or willful acts of the defendant, must be embraced in the '"Ante, § 272; Union Stock Yards ""Wabash &c. R. Co. v. Moran, 13 &c. Co. V. Monagahan, 13 111. App. 111. App. 72. 148. But whether an instruction as ^" Ante, § 272. to comparative negligence contains ^°^ Indianapolis &c. R. Co. v. Evans, the requirement of ordinary care Is 88 111. 63. immaterial where that requirement "'Wabash R. Co. v. Jones, 5 111. is contained in other instructions: App. 607. Christian v. Erwin, 22 111. App. 534; '"Chicago v. Stearns, 105 111. 554. s. c. aff'd in 125 111. 619; s. c. 15 "= Chicago &c. R. Co. v. Connor, West. Rep. 47; 17 N. E. Rep. 707. 13 111. App. 62; Chicago &c. R. Co. "'Chicago &c. R. Co. v. Johnson, v. Mason, 27 111. App. 450. 103 111. 512. 265 1 Thomp. Neg.J contributory negligence. instruction.^"^ Therefore an instruction "You can not find defend- ant guilty unless you believe from the evidence that the injury com- plained of was caused by the negligence of defendant, and plaintiff was without fault," — ^was held to be erroneous,^"' as being stronger for the defendant than the rule of comparative negligence will justify. An instruction to the effect that the plaintiff may recover although guilty of slight negligence, if the defendant might have discovered the exposed situation of the plaintiff's child and avoided the injury by the exercise of ordinary care, has been held objectionable, first, because not requiring that the negligence of the defendant should be gross compared with the negligence of the plaintiff; and, second, because allowing the jury to speculate as to what "might" have re- sulted, rather than determine what "would" have resulted.^"* Where the terms "want of ordinary care" and "gross negligence" were used as equivalents of one another in stating to a jury the rule of contrib- utory negligence upon a trial in which a railroad brakeman sought damages for injuries received while coupling cars, — it was held, that a new trial should be had.^°* § 283. When Comparative Negligence a Question for the Jury. — While the doctrine of comparative negligence was flagrant in Illinois, it was said to be a question of fact whether the proof establishes negligence that may be the subject of comparison for the purpose of determining comparative negligence.^^" In a case in another court of the same jurisdiction it is said to be discretionary with the trial court whether to give or to refuse an instruction on the question of comparative negligence.^ ^^ These propositions can not both be the law, and the last certainly can not be. On the one hand, it must be the rule — unless juries are to be left to make law — that the hypoth- esis of comparative negligence can only be submitted to the jury where there is substantial evidence exhibiting a state of facts calling for the application of that rule of law. On the other hand, where the evidence does present such an hypothesis of facts, it is the plain right of the other party to have the applicatory rule of law explained to the jury; and this can not be left to the mere discretion of the court. The rule in that State is said in other decisions to be that it ™ Union R. &c. Co. v. Kallaher, 12 trine of "comparative negligence" 111. App. 400; Chicago &c. R. Co. v. does not obtain. Harwood, 90 111. 425. ™ Chicago &c. R. Co. v. Avery, 8 "' Ohio &c. R. Co. V. Porter, 92 111. 111. App. 133. 437. ""Chicago &c. R. Co. v. Warner, "'Moody V. Peterson, 11 111. App. 123 111. 38, 46; s. c. 11 West. Rep. 180. This instruction would be good 643; 14 N. E. Rep. 206. in some jurisdictions where the doc- '" Galesburg v. Benedict, 22 111. App. 111. 266 COMPAKATIVE NEGLIGENCE. [2d Ed. is not indispensable to explain to the jury the rule of comparative negligence, in the instructions given for the plaintiff, though if the court undertakes to explain it, it must do so clearly.^ ^^ And it is certainly the only admissible view that ''if the circumstances of the case are such that the doctrine can be applied to the case, either party may ask the court to inform the jury as to the rule and in what state of the evidence they may consider it in determining the right of the parties."ii=' § 284. Burden of Proof as to Comparative Negligence. — The bur- den is, of course, on the plaintiff to make out his case. It is there- fore, under this doctrine, though not so, as we shall see, in all juris- dictions, incumbent upon the plaintiff to prove that he was not guilty of such negligence as will defeat his action — in other words, to prove that he was in the exercise of ordinary care.^^* The onus of seeing relative degrees is not thrown on the defendant. "Neither party, in the first instance, is assumed to have been negligent. The negligence must be proved ; and unless it appears from the proof that the plaint- iff's case, under all the evidence, is proved as alleged, there can be no recovery."^ ^° § 285. Doctrine of Comparative Negligence in Kansas. — As stated in the official head-notes of two eases decided by the Supreme Court of Kansas,^ ^* the following rule has been adopted in that State: It is not necessary, in order to enable a party to recover for injuries to his property, that he shall be entirely free from negligence himself; but if his negligence is slight, and that of the other party is gross, or if his is remote, and that of the other the proximate cause of the in- jury, he may recover. It is a question of fact for the jury to deter- mine whether there has been negligence, and its nature and degree; but it is a question of law for the court to determine what degree of care and diligence on the one hand, and of negligence on the other, will entitle the plaintiff to recover. ^^^ In the former case, the rule was applied so as to reach a result precisely the reverse of what would have been reached by the Supreme Court of Illinois on the same facts. '"Chicago &c. R. Co. v. O'Connor, those of Ohio and Georgia, the syl- 119 III. 586, 596; Calumet &c. Steel labus of each case is prepared by Co. V. Martin, 115 111. -358, 374. the judge who wrote the opinion. "' Chicago &c. R. Co. v. Fietsam, "' Union Pacific R. Co. v. Rollins, 24 111. App. 210, 215; aff'd on other 5 Kan. 167; Caulkins v. Matthews, grounds in 123 111. 518; s. c. 12West. 5 Kan. 191. In the former case. Rep. 844; 15 N. B. Rep. 169. Valentine, J., who wrote the opinion "* Indianapolis &c. R. Co. v.-Evans, of the court, discussed the question 88 111. 63. of the degrees of negligence at great ""Chicago &c. R. Co. v. Harwood, length. A careful perusal of this SO 111. 425, 429. opinion is recommended. "" In the Kansas reports, as in 267 1 Thomp. Neg.] contributory negligence. The case was an action against a railway company for running over and killing the plaintiffs' cattle. The court laid down the following proposition: "If the plaintiffs knowingly allowed their cattle to run and graze on the lands of the railroad company without the consent of the company, therehy endangering the lives of passengers and others, they can recover only for injuries done to their cattle through the most gross and wanton negligence of the company. "'^'^^ In the second case, the plaintiff allowed his horse to run at large. The horse wandered upon the unenclosed land of the defendant, and fell into an old well, which caused its death. It was held that the plaintiff could not recover, unless the defendant was guilty of gross negligence in leaving the old well open.^^'' This doctrine was reiterated in a later case, and the following instruction was held correct: "If the jury believe from the evidence that the plaintiff's negligence contributed to the injury complained of, he can not recover. But if such negli- gence was only slight, or the remote cause of the injury, he may still recover, notwithstanding such slight negligence or remote cause." ^^^ Carrying out the same doctrine, where, in a subsequent case, the jury found that the defendant was guilty of gross negligence immediately causing the injury, and also that the plaintiff was guilty of negligence contributing to the injury, without specifying what degree of negli- gence, or whether proximately or remotely contributory, the Supreme Court concluded that it was apparent from the instructions and the other findings that he was guilty only of such slight negligence as was consistent with the right to recover compensation.^^ ^ The Kansas court, however, agree with the Illinois court,^^^ that where both parties have been guilty of negligence contributing to the injury, the plaintiff can recover damages on the ground that the negligence of the defendant was greater than that of the plaintiff ;^^' and, erroneously supposing that this is the doctrine of comparative negligence, the court say: "We do not endorse the doctrine of comparative negligence."^ ^* But the court reafSrmed the doctrine of an earlier case,^^° to the effect that the fact that the negligence of the plaintiff is slight or remote does not preclude him from recovering damages.^^^ And this, as pointed out in a separate opinion by Valentine, J., is tantamount to the doctrine of the Wisconsin court, already referred to,^^^ and to the "'Union Pacific R. Co. v. Rollins, 29 Kan. 170, 180; Atchison &c. R. 5 Kan. 167, 185. Co. v. Morgan, 31 Kan. 77. "" Caulkins v. Matthews, 5 Kan. '^ Atchison &c. R. Co. v. Morgan, 191. 31 Kan. 77, 80. "° Sawyer v. Sauer, 10 Kan. 466. ^ Sawyer v. Sauer, 10 Kan. 466. '^-^ Kansas Pacific R. Co. v. Pointer, ^^ Atchison &c. R. Co. v. Morgan, 14 Kan. 37. 31 Kan. 77, 80. ^-- Ante, § 269. '"Anie, § 267; Griffin v. Willow, "= Kansas Pac. R. Co. v. Peavey, 43 Wis. 509; Cremer v. Portland, 268 COMPAEATIVE NEGLIGENCE. [2d Ed. general doctrine.^^' The doctrine of comparative negligence is now denied in Kansas altogether/^* unless the judicial pendulum shall swing back again. § 286. Admiralty Rule Apportioning the Damages.^ — It seems to have been supposed at one time that the rule of courts of admiralty apportioning the damages between the parties in cases of marine torts where the accident was partly due to the fault of the libellant, did not extend beyond cases of collision, of negligent navigation, and possibly of prize. But later decisions seem to have settled the ques- tion that the rule extends to cases of marine tort founded upon negli- gence.^^" In the last named case Mr. Circuit Judge Wallace said: "Upon these views of the law, the collision ride for dividing damages can no longer be considered as applicable only to cases involving the rights and responsibilities of parties for colliding vessels. The prin- ciples enunciated apply to all cases of marine tort founded upon neg- ligence, without regard to any peculiar considerations of maritime policy for regulating the conduct of ships towards each other, or to any exceptional rules of practice adopted by the Admiralty Courts because of the intrinsic difficulty in collision cases of locating the fault, or the cause of the disaster."^ '^ From a learned note to the last named case by Theodore JI. Etting, Esq., of the Philadelphia bar, the author is enabled to give the following condensed statement of the Federal doctrine on this subject down to the year 1886 : — that the rule that contributory negligence bars a recovery is not applicable in admiralty ;^^^ that where, in the case of the collision of two vessels, both are in fault, though not in equal degrees, the loss will not be allowed to fall solely upon one, but the damages will be apportioned between them as to the comparative degree of fault of each.^^' But 36 Wis. 92; Dreher v. Fitchburg, 22 Fed. Rep. 189; The Mabel Comeaux, Wis. 675; Ward v. Milwaukee &c. R. 24 Fed. Rep. 490. Co., 29 Wis.. 144; Hammond v. "'The Pegasus, 19 Fed. Rep. 46 Mukwa, 40 Wis. 35. The Franconia, 16 Fed. Rep. 149 ""Arete, § 171, et seq. The David Dows, 16 Fed. Rep. 154 ^'^ Ante, § 263. Memphis &c. Packet Co. v. Yaeger a This section is cited in §§ 170, Transp. Co., 10 Fed. Rep. 395; The 177, 359. Monticello, 15 Fed. Rep. 474; The '=» The Explorer, 20 Fed. Rep. 135; Columbia, 27 Fed. Rep. 238; The Atlee V. Union Packet Co., 21 Wall. Mary Ida, 20 Fed. Rep. 741; The (U. S.) 389; The Max Morris, 28 Syracuse, 18 Fed. Rep. 828; The B. Fed. Rep. 881; s. c. 24 Blatchf. (U. & C, 18 Fed. Rep. 543; The Cum- S.) 142; aff'g s. c. 24 Fed. Rep. 860. mings, 18 Fed. Rep. 179; The God- ™The Max Morris, 28 Fed. Rep. frey, 17 Fed. Rep. 738; The Mur- 881, 886; s. c. 24 Blatchf. (U. S.) tagh, 3 Fed. Rep. 404, and 17 Fed. 142; aff'g s. c. 24 Fed. Rep. 860. Rep. 259; Christian v. Van Tassel, "=The Wanderer, 20 Fed. Rep. 12 Fed. Rep. 884; The Roman, 12 140; The Explorer, 20 Fed. Rep. Fed. Rep. 219; Connolly v. Ross, 11 135; The James M. Thompson, 12 Fed. Rep. 342; The Ant, 10 Fed. Rep. 269 1 Thomp. Neg.j contributory negligence. there are cases -which hold that where the negligence of the libellant so far contributes to the injury that, but for his want of ordinary care, it would not have happened, he is not entitled to recover any dam- ages.^'* 294; The William Cox, 3 Fed. Rep. 702; The Carl, 18 Fed. Rep. 655; 645, and 9 Fed. Rep. 672. Sunny v. Holt, 15 Fed. Rep. 880. '»«The E. B. Ward, 20 Fed. Rep. 270 INJURIES TO CHILDKEN AND OTHEES NON SUI JURIS. [2d Ed. CHAPTER XI. CONTEIBUTORT NEGLIGENCE IN CASE OP INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. Art. I. Whether Negligence of Parent or Custodian Imputed to Children, §§ 289-303. Art. II. Degree of Care Expected of Children, §§ 306-318. Art. III. Care and N"egligence of Parents and Custodians, §§ 321-333. Art. IV. Injuries to Other Persons 'Non Sui Juris, §§ 336-341. Art. V. Other Matters, §§ 343- 348. Article I. Whether Negligence oe Parents or Custodian Imputed to Children. Section Section 289. Doctrine that negligence of 297. Modified and then repudiated in parents, etc., imputed to chil- Illinois. dren, etc., in their charge. 298. Modified in case of children 290. English rule which imputes the escaping upon the highway. negligence of the custodian 299. Rule does not apply in case of to the Infant. children injured by "gross" 291. Rule as declared in Hartfield v. negligence. Roper, which imputes the 300. The same subject, how viewed negligence of parents to chil- in Missouri. dren. 301. Effect of presence of parent or 292. This rule adopted in what custodian at the time of 'in- states, jury. 293. Denied in what states. ' 302. The same subject in other ju- 294. The rule in Hartfield v. Roper risdictions. discussed. 303. Injuries where no negligence 295. Rule in Hartfield v. Roper mod- of parent or custodian Is im- ified. puted. 296. Modified in California and other states. § 289. Doctrine that Negligence of Parents, etc., Imputed to Chil- dren, etc., in their Charge.^ — Nearly akin to the principle which forbids a plaintiff to recover damages for a wrong to which his own negligence has contributed is the doctrine which visits upon a child, idiot, lunatic, or other person non sui juris, the consequences of negli- a This section is cited in §§ 77, 86, 301, 493, 497. 271 1 Thomp. Neg.j contributory negligence. genee on the part of the parent or person having charge of him, or the lawful control of his movements. The policy upon which this rule is based is thus explained by Mason, J., in Mangam v. Brooklyn Railroad Company:'- "This rule," said he, "applies to infants, in their relations to society, who are of such tender age that they are in- capable of self-control and personal protection. An infant in its first years is not sui juris. It belongs to another, to whom discretion in the care of its person is exclusively coniided. The custody of the infant of tender years is confided by law to its parents, or those standing in loco parentis; and not having that discretion necessary for personal protection, the parent is held, in law, to exercise it for him, and in cases of personal injuries received from the negligence of others, the law imputes to the infant the negligence of the parent. The infant being 7ion sui juris, and having a keeper, in law, to whose discretion in the care of his person he is confided, his acts, as regards third persons, must be held, in law, the acts of the infant ; his negli- gence, the negligence of the infant." The leading case upon this subject in this country is Hartfield v. Roper/ where Mr. Justice Cowen first announced the rule in this country, and explained its operation in a case which has been the source of great diversity of judicial opinion, the course of which an attempt will be made to trace. In England, the rule dates from the ease of Waite v. North-E astern Railway Company,^ since which time there has been little or no ad- judication directly upon the subject in that country. § 290. English Rule which Imputes the Negligence of the Cus- todian to the Infant. — In Waite v. North-Eastern Railway Company'^ the facts were that the plaintiff, a child five years old, was in charge of its grandmother, who procured tickets for both at a railway sta- tion, with the intention of taking the train at that place. The pair, in crossing the track for the purpose of .reaching a platform on the side of the station opposite the ticket-office, were run down by a train, under circumstances, (as the jury found) of concurrent negligence on the part of the grandmother and of the servants of the defendant. The grandmother was killed, and the plaintiff received personal in- juries for which the suit was brought. In the Court of Queen's Bench, Lord Campbell, C. J., held that the infant was so identified with the grandmother that the action could not be maintained. This view was sustained in the Court of Exchequer Chamber. The judges generally based their opinions upon the ground that the action was for '38 N. Y. 455, 459. Court of Exchequer Chamber, El. Bl. = 21 Wend. 615; s. c. 2 Thomp. & Bl. 728). Neg., 1st ed., p. 1121. ' El. Bl. & El. 719, 728. = El. Bl. & El. 719 (affirmed in the 272 ^efJUKlES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. a breach of duty arising out of a contract made by the defendant with the person having the plaintiff in charge. Said Crowder, J. : "The case is the same as if the child had been in the mother's arms;"^ therefore whatever rights the plaintiff had in the premises must be predicated upon the contract of carriage. "The contract of convey- ance," said Cockburn, C. J., "is on the implied condition that the child is to be conveyed subject to due and proper care on the part of the person having it in charge." Williams, J., had no doubt that what was resolved in this case would be true generally although there was no contract whatever in the case. Said he: "The person who has the charge of the child is identified with the child. If a father drives a carriage, in which his infant child is, in such a way that he incurs an accident which by the exercise of reasonable care he might have avoided, it would be strange to say that though he himself could not maintain an action, the child could." This case gives the English rule so far as it has been declared by the courts of that country. It must be noticed that in order to impute the negligence of the cus- todian to the infant, the latter must be actually present and in charge of the former, so that his movements may be made the subject of control. It is believed that there is no decision of the English court similar to the large body of American decisions which discuss the effect of the negligence of the parent or custodian in allowing a child to wander from home, or failing to restrain it within safe limits. In Lygo V. Newhold,^ the facts of which case bear no analogy to those of the cases under discussion, Alderson, B., during the course of the argument, and in the discussion of a hypothetical case, interjects this evidently ill-considered remark: "The negligence, in truth, is attrib- utable to the parent who permits the child to be at large. It seems strange that a person who rides in his carriage without a servant, if a child receives an injury by getting up behind for the purpose of hav- ing a ride, should be liable for the injury."' It is quite uncertain " El. Bl. & El. 735. The case supposed by Alderson, B., " 9 Exch. 302, 305. is a good illustration. The thought- ' It is important to bear in mind, less act of a child brings himself in in actions for injuries to children, contact with a person performing his a very simple and fundamental fact, business in a lawful manner. Grant- which in this class of cases is some- ed that the child is too young to times strangely lost sight of, viz., perceive the difference between dan- that no action arises without a ger and safety, the question still re- breach of duty. It is doubtless true mains. What breach of duty has the that the public are held to a higher owner of the vehicle committed? degree of care towards children Obviously none. The action, there- than adults, and that children of fore, is entirely without foundation, tender years are incapable of negli- See Phila. &c. R. Co. v. Spearen, 47 gence (post. § 306, et seq.) ; but Pa. St. 300; Hartfleld v. Roper, 21 from these facts it must not he has- Wend. 615, 622; Bulger v. Albany R. tily concluded that an action can be Co., 42 N. Y. 459; Hubener v. .New maintained in every case of injury. Orleans &c. R. Co., 23 La. An. 492; \n-!,. 1 TrrOMP. XEC. — 18 2 . l> 1 Thomp. Neg.] contributory negligence. what would be the decision of the English courts if the issue were presented in an action by a child non sui juris, negligently permitted by its parents to wander upon the street, or escaping through their negligence and injured by the negligence of another person. There are cases in which children thus straying about, and injured by the negligence of third persons, have been held entitled to recover.' On the other hand, there are later decisions, and apparently irreconcilable with the former, in which it was held that no recovery could be had." These cases were decided upon grounds wholly independent of that under consideration. In none of them is the negligence of the parent in allowing the child to be at large even hinted at. § 291. The Rule as Declared in Hartield v. Roper, which Imputes the Negligence of Parents to Children. — As previously stated, we turn to the case of Hartfield v. Roper^" for the first enunciation of the rule that where a child of such tender age as not to possess sufficient discretion to avoid danger is permitted by its parents to be in a public highway without any one to guard it, and is there run over by a traveller and injured, neither trespass nor case will lie, unless the injury be voluntary or the result of "gross neglect" on the part of such traveller. In an action for such injury, if the conduct of the child be such as would constitute negligence on the part of an adult, although the child, by reason of his tender age, be incapable of using that degree of care which is expected of a person of prudence, the want of such care on the part of the parents or guardians of the child furnishes a complete defense to an action h^ the child for the injury sustained. § 292. This Rule Adopted in What States. — The rule which im- putes the negligence of parents to children has received the support of subsequent decisions in New- Yorh,'^'^ and of the courts of last resort Chicago &c. R. Co. v. Stumps, 69 111. "21 "Wend. (N. Y.) 615; s. c. 2 409; Brown v. European R. Co., 58 Thomp. Neg. (1st ed.) 1121. Me. 384; Meeks v. Southern Pacific "Well v. Dry Dock &o. R. Co., 119 R. Co., 52 Cal. 602. N. Y. 147; s. c. 28 N. Y. St. Rep. 944; « Lynch v. Nurdin, 1 Q. B. 29; s. c. 23 N. E. Rep. 487; Williams v. Gar- 4 Per. & Dav. 672; 2 Thomp. Neg., diner, 58 Hun (N. Y.) 508; s. c. 35 1st ed., p. 1140; Gardner v. Grace, N. Y. St. Rep. 796; 12 N. Y. Supp. 1 Fost. & Pin. 359. 612; Canavan v. Stuyvesant, 12 'Hughes V. Macfie, and on the Misc. 74; s. c. 33 N. Y. Supp. 53; 66 same facts, Abbott v. Macfie, 2 Hurl. N. Y. St. Rep. 687; Metcalfe v. & Colt. 744; s. c. 10 Jur. (N. S.) Rochester R. Co., 12 App. Div. 147; 682; 33 L. J. (Exch.) 177; 12 Week. s. c. 42 N. Y. Supp. 661. Compare Rep. 315; 9 L. T. (N. S.) 513; Man- Hennessey v. Brooklyn City R. Co., gan V. Atterton, 4 Hurl. & Colt. 388; 147 N. Y. 721; s. c. 6 App. Div. 206; s. c. L. R. 1 Exch. 239; 35 L. J. 73 Hun 569. In New York this fine (Exch.) 161; 14 Week. Rep. 771; 14 distinction has been taken, ttfat the L. T. (N. S.) 411. negligence of a father, driving an 274 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. in Delaware/^ Massachusetts,^^ Maine/* Maryland,'^^ Minnesota,'^ ^ Indiana/'' Illinois/^ In Illinois, the earlier decisions here quoted are overruled, and the contrary rule is now adopted,^® and this is possibly the case in some of the other jurisdictions here named. California/" Nebraska/'^ and Michigan/^ § 293. Denied in What States.^ — On the contrary, the doctrine which imputes to a child or other person not sui juris the negligence of its parent, guardian, or custodian, so as to preclude it from recov- ering damages from a third person through whose negligence it has been injured, is denied in Pennsylvania/'^ Vermont/* Connecticut/^ infant child, held in its mother's arms, is not imputed to the child, where defendant was also guilty of negligence occasioning the injury. In such a case, the child is in the immediate custody of the mother, and her negligence alone would be imputed to it: Hennessey v. Brook- lyn &c. R. Co., 147 N. Y. 721; s. c. 6 App. Div. (N. Y.) 206; 73 Hun 569. "Kyne v. Wilmington &c. R. Co., 8 Houst. (Del.) 185; s. c. 13 Cent. Rep. 391; 14 Atl. Rep. 922. "Wright V. Maiden &c. R. Co., 4 Allen (Mass.) 283; Holly v. Boston Gas Co., 8 Gray (Mass.) 123; Mulli- gan V. Curtis, 100 Mass. 512; Lynch V. Smith, 104 Mass. 53; Callahan v. Bean, 9 Allen (Mass.) 401; Lovett v. Salem &c. R. Co., 9 Allen (Mass.) 557; Casey v. Smith, 152 Mass. 294; s. c. 9 L. R. A. 259; 25 N. E. Rep. 734. "Brown v. European &c. R. Co., 58 Me. 384, 388. " McMahon v. Northern Central R. Co., 39 Md. 439; Baltimore &c. R. Co. v. McDonnell, 43 Md. 551. •"Fitzgerald v. St. Paul &c. R. Co., 29 Minn. 336; s. c. 43 Am. Rep. 212. "Evansville &c. R. Co. v. Wolf, 59 Ind. 89; Jeffersonville &c. R. Co. V. Bowen, 40 Ind. 545; s. c. 49 Ind. 154; Pittsburgh &c. R. Co. v. Vln- ing's Administrator, 27 Ind. 513; Lafayette &c. R. Co. v. Huffman, 28 Ind. 287. "Chicago v. Major, 18 111. 349; Chicago &c. R. Co. v. Gregory, 58 111. 226; Chicago v. Starr's Adminis- trator, 42 111. 174; Chicago &c. R. Co. V. Becker, 76 111. 25; s. c. 84 111. 482; Chicago v. Hesing, 83 111. 204; Toledo &c. R. Co. v. Grable, 88 111. 441; Baltimore &c. R. Co. v. Pietz, 61 111. App. 161; Chicago & A. R. Co. V. Logue, 158 111. 621; s. c. 42 N. E. Rep. 53 ; aff'g s. c. 58 111. App. 142. ^"Post, § 293. ^"Karr v. Parks, 40 Cal. 188; Schierhold v. North Beach &c. R. Co., 40 Cal. 447; Meeks v. Southern Pacific R. Co., 52 Cal. 602. ^ Meyer v. Midland R. Co., 2 Neb. 319, 322. ^Apsey V. Detroit &c. R. Co., 83 Mich. 432; s. c. 47 N. W. Rep. 319. a- This section is cited in § 301. =« Smith V. O'Connor, 48 Pa. St. 218; Pennsylvania R. Co. v. Kelly, 31 Pa. St. 372; Ranch v. Lloyd, 31 Pa. St. 358; Kay v. Pennsylvania R. Co., 65 Pa. St. 269; Phila &c. R. Co. V. Long, 75 Pa. St. 257; Glassey v. Hestonville &c. R. Co., 57 Pa. St. 172 ; Erie City Pass. R. Co. v. Schus- ter, 113 Pa. St. 412; s. c. 4 Cent. Rep. 921. ^'^ Robinson v. Cone, 22 Vt. 213; s. c. 2 Thomp. Neg., 1st ed., 1129. But see Glidden v. Reading, 38 Vt. 52. ^'Birge v. Gardiner, 19 Conn. 507; Daly V. Norwich &c. R. Co., 26 Conn. 591. 275 1 Thomp. Neg.] contributory negligence. Ohio/^ Virginia,^' West Virginia/^ llissouri,^" Alabama/'^ Illi- nois/'^ New Jersey/^ Texas/^ Kansas/'^ Mississippi/^ lowa/^ Mich- igan/'' New Hampshire/^ Georgia/^ Louisiana/" Washington/^ Tennessee/'^ and in the courts of the United States.^^ In Iowa it has been held that the right of recovery m favor of the estate of a child killed in consequence of negligence is not affected by the fact that the parents are entitled to his estate by inheritance, and that the father contributed to the accident.** The court reasoned that this '° Bellefontaine R. Co. v. Snyder, 18 Ohio St. 399; Cleveland &c. R. Co. V. Manson, 30 Ohio St. 451; Davis V. Guarnieri, 45 Ohio St. 470; s. c. 13 West. Rep. 447; 15 N. E. Rep. 350; St. Clair &c. R. Co. v. Eadie, 43 Ohio St. 91; s. c. 54 Am. Rep. 144, note; 1 West. Rep. 88. ^ Norfolk &c. R. Co. v. Ormsby, 27 Gratt. 455; Norfolk &c. R. Co. V. Groseolose, 88 Va. 267; s. c. 13 S. E. Rep. 454; 15 Va. L. J. 645. '' Dioken v. Liverpool Salt &c. Co., 41 W. Va. 511; s. c. 23 S. E. Hep. 582. ^ Boland v. Missouri &c. R. Co., 36 Mo. 484; Winters v. Kansas City Cable R. Co., 99 Mo. 509; s. c. 6 L. R. A. 536; 12 S. W. Rep. 652; 40 Am. & Eng. R. Cas. 261; Brill v. Eddy, 115 Mo. 596; s. c. 22 S. W. Rep. 488. But see Stillson v. Han- nibal &c. r: Co., 67 Mo. 671; s. c. 7 Cent. L. J. 107. ^° Government Street R. Co. v. Hanlon, 53 Ala. 70. ^' Chicago City R. Co. v. Robin- son, 27 111. App. 26; s. c. aff'd in 127 III. 9; s. c. 4 L. R. A. 126; 18 N. E. Rep. 772; Chicago City R. Co. v. Wilcox, 138 111. 370; s. c. 8 L. R. A. 494; 24 N. E. Rep. 419; 8 Rail. & Corp. L. J. 135; 44 Alb. L. J. 70; 27 N. E. Rep. 899. For earlier and con- trary holdings in this State, see ante, § 292. Jansen v. Siddal, 41 111. App. 279; s. c. rev'd on other grounds in 30 N. E. Rep. 357. "^ Newman v. Phillipsburgh Horse Car Co., 52 N. J. L. 446; s. c. 8 L. R. A. 842; 19 Atl. Rep. 1102; 13 N. J. L. J. 234. But in that State the negligence of a father in tne management of his team can not be imputed to his daughter who is rid- ing with him, she being sui juris. Consolidated Traction Co. v. Behr, 59 N. J. L. 477; s. c. 37 Atl. Rep. 142. From which it appears that the enlightened jurisprudence throws a shield around adults who are ca- pable of taking care of themselves, which it denies to infants, who are not. 2' Gulf &c. R. Co. V. McWhirter, 77 Tex. 356; s. c. 14 S. W. Rep. 26; Allen V. Texas &c R. Co. (Tex. Civ. App.), 27 S. W. Rep. 943 (not off. rep.); Texas &c. R. Co. v. Beckworth, 32 S. W. Rep. 809 (no off. rep.) ; Galveston &c. R. Co. v. Moore, 59 Tex. 64; s. c. 46 Am. Rep. 265. =* Union &c. R. Co. v. Young, 57 Kan. 168; s. c. 45 Pac. Rep. 580. "= Westbrook v. Mobile &c. R. Co., 66 Miss. 560; s. c. 39 Am. & Eng. R. Cas. 374; 6 Rail. & Corp. L. J. 235; 6 South. Rep. 321. ^ Wymore v. Mahaska County, 78 Iowa 396; s. c. 6 L. R. A. 545; 29' Am. & Eng. Corp. Cas. 480; 43 N. W. Rep. 264. =' Shippy V. Au Sable, 85 Mich. 280, 293; Battishili v. Humphreys, 64 Mich. 494, 511; s. c. 7 West. Rep. 806 ^Bisaillon v. Blood, 64 N. H. 565; s. c. 15 Atl. Rep. 147; 6 N. Eng. Rep. 908. '"Atlanta &c. Air Line R. Co. v. Gravitt, 93 Ga. 369; s. c. 26 L. R. A. 553; 44 Am. St. Rep. 145; 20 S. E. Rep. 550. *° Westerfield v. Levis, 43 La. An. 63; s. c. 9 South. Rep. 52. "Roth V. Union Depot Co., 13 Wash. 525; s. c. 31 L. R. A. 855; 43 Pac. Rep. 641; 44 Pac. Rep. 253. " Bamberger v. Citizens' Street R. Co., 95 Tenn. 18; s. c. 28 L. R. A. 486; 31 S. W. Rep. 163. " Kowalski v. Chicago &c. R. Co., 84 Fed. Rep. 586 ; Berry v. Lake Brie &c. R. Co., 70 Fed. Rep. 679. " Wymore v. Mahaska County, 78 Iowa 396; s. c. 6 L. R. A. 545; 29 Am. & Eng. Corp. Cas. 480; 43 N. W. Rep. 264. 276 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed, was not a case where the negligent father was seeking to recover in his own right.*' § 294. The Rule in Hartfield v. Hoper Dieussed. — A careful read- ing of this case will show that the rule which Mr. Justice Cowen took pains to declare was entirely unnecessary to the decision of the case ; for upon the facts no other conclusion could have been reached. At one stage of the opinion** he says: "My difficulty in the case at bar is to find the least color of imputing gross negligence, or, indeed, any degree of negligence, to the defendants." The rule, however, as de- clared, is very strictly upheld in Massachusetts. In Wright v. Mal- den, etc., Railroad Company" it was held that the fact that a child two years of age is passing unattended across a public street in a city traversed by a horse-railroad is of itself prima facie evidence of neglect in those having it in charge. In Callahan v. Bean^^ a ques- tion was decided by the court, which it would seem might very prop- erly have been submitted to the jury. The evidence was that the father of the plaintiff, a child two years' and four months old, had taken him across the street to purchase some candy for him. After making the purchase, the father went with the child to the door of the shop, looked up and down the street, and, seeing no horse, person, or other impediment in the street, directed the plaintifE to go across the street to his home. The street was about eighteen feet wide be- tween the curb-stones, and the shop in question was not directly op- posite the door of the house of the plaintiif's father, but about thirty feet further up the street. Having given the above direction, the father turned away, without watching to see whether the child crossed the street in safety. Within two minutes the child, while in the street, was run down by a baker's cart owned by the defendant, and driven by him down the street upon a gallop. Hoar, J., affirmed the ruling of the court below directing a verdict for the defendant, on the ground that the plaintiff had not shown due care on the part of himself or his parents.*^ It is gratifying, however, to observe that although some subsequent decisions have followed the rule in Hart- field v. Roper in all its harshness, '" yet in more recent cases, in the State where the rule was first declared, the courts have taken a more humane view of cases of this kind. In Hartfield v. Roper the lan- guage of the court is at times almost extravagant : "A snow-path in "As to which, see post, § 330, et "See also McLain v. Van Zandt, seg. 7 Jones & Sp. (N. Y.) 347. "21 Wend. 622; 2 Thomp. Neg., "» Kreig v. Wells, 1 E. D. Smith 1st ed., p. 1127. (N. Y.) 76; Lehman v. Brooklyn, "4 Allen (Mass.) 283. 29 Barb. (N. Y.) 234. "9 Allen (Mass.) 401. 277 1 Thomp. Neg.] contributory negligence. the public highway is among the last places in this country to which such a small child should be allowed to resort, unattended by any one of suitable age and discretion. * * * rp^ allow small children to resort there alone is a criminal neglect." When it is remembered that the accident from which the action arose in this case happened in the country, where there was but a solitary house," it would appear manifestly unjust to declare the conduct of the plaintiff's parents, in allowing their child to step into the road, negligence per se. It is now held that parents are not obliged to restrain their children with- in doors at their peril. ^^ As elsewhere seen,^^ the doctrine of im- puted negligence with reference to adults is generally repudiated, both in this country and in England. That it should be adhered to in any enlightened jurisdiction with respect to children is a reproach to the judges who uphold it. An adult person, when he commits his person to the custody of another, does so at least voluntarily : an infant does not select his custodian — it is selected for him by the laws of nature, or by circumstances beyond his control. Certainly, there is no reason why the ordinary principle that where one is injured by the con- curring negligence of two persons, he has an action against either or both, should not apply in the case of an injury to a child, unless the imputation is to be put upon the law of denying to feeble and help- less infancy the same measure of protection which it accords to adults. Such a conception is cruel, heartless, and wicked. It can only hold in jurisdictions where property is placed above humanity. § 295. Rule in Hartield v. Roper Modified. — The harshness of the rule is very much modified in its application in several States which profess to follow it. Thus, in Maryland it is held that a child non sui juris will not be prevented from recovering in consequence of the negligence of his parents, if the jury shall find that the consequences of such negligence could have been avoided by the exercise of ordinary care and prudence on the part of the defendant.^* In McMahon v. "'24 Wend. (N. Y.) 618; s. c. 2 ^^ Post, § 498, et seq. Thomp. Neg., 1st ed., p. 1123. °* Baltimore &c. R. Co. v.. McDon- "^ Mangam v. Brooklyn &c. R. Co., nell, 43 Md. 535, 551. This modifl- 38 N. Y. 455; Mullaney, v. Spence, cation of the rule — which Is really 15 Abb. Pr. (N. S.) 319; MoGarry v. nothing more than a rule in the law Loomis, 63 N. Y. 104; Cosgrove v. of contributory negligence, applied Ogden, 49 N. Y. 255; Fallon v. Cen- alike in case of injuries to person tral Park &c. R. Co., 64 N. Y. 13; and property {ante, § 230, et seq.) Lovett V. Salem &c. R. Co., 9 Allen is to be highly commended. A man (Mass.) 55Y; Munn v. Reed, 4 Allen may allow his property to be wrong- (Mass.) 431; BarksduU v. New Or- fully in an exposed position, — an leans &c. R. Co., 23 La. An. 180; ass, for example, fettered in the Hagan's Petition (U. S. Cir. Ct. East highway, or a bed of oysters in a Dist. Mo., before Dillon, J.), 7 Cent, navigable river, — yet if travellers, L. J. 311; post, § 324, et seq. by the exercise of ordinary care, can 278 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d E(l. Northern Central Railroad Company,^^ the plaintiff, a child five years and nine months old, was sent by his mother to a junk-store to sell a basket of rags. To reach the store, it was necessary to cross a street traversed by the tracks of the defendant. In returning home, the child was run over and maimed by the defendant's cars. There was some evidence of negligence on the part of the persons in charge of the train. This was held to be a proper case for the decision of a jury, under instructions that the plaintiff might recover if the injury resulted from the want of ordinary care on the part of the defendant's agents, provided it should appear that the accident could not have been avoided by the exercise of such care and caution by the plaintiff as ought, under the circumstances, to be reasonably expected from one of his age and intelligence ; also, that there was no want of ordi- nary care and prudence on the part of his parents, directly contrib- uting to the accident. § 296. Modified in California and Other States. — The Supreme Court of California also is quite liberal in relegating cases of this character to the decision of a jury. Thus, in Karr v. Parks,^^ the plaintiff, a child between ten and eleven years of age, was permitted by her parents to take her sister, five years of age, upon an unfre- quented street or road to pick flowers. While thus engaged, the avoid doing it injury, ttiey are Sampson, 126 Mass. 506; s. c. 8 bound to do so. Davfes v. Mann, Cent. L. J. 442. Contrast sucti 10 Mees. & W. 546; s. c. 2 Thomp. manifest justice and humanity with Neg., 1st ed., p. 1105. See also Bridge the frigid technicality of a rule and Grand Junction R. Co., 3 Mees. which makes the imputation of neg- & W. 244; Colchester v. Brooke, 7 ligence perfect in proportion to the Q. B. 339; Radley v. London &c. R. helplessness of the victim, exposes Co., L. R. 9 Bxch. 71; 43 L. J. life and limb to the recklessness (Exch.) 73; s. c. 1 App. Cas. 754 of others who are suffered to go un- ( reversing L. R. 10 Exch. 100; 44 punished, the law being satisfied L. J. (Exch.) 73; 33 L. T. (N. S.) with a vicarious subject upon which 209; 2 Thomp. Neg., 1st ed., p. 1108. to visit the penalty of a slight de- If resort be had to analogy, it will gree of negligence. See Callahan v. be found that this rule of imputed Bean, 9 Allen (Mass.) 401. If the negligence, as applied to persons doctrine of Davies v. Mann (10 non sui juris, is an anomaly. For Mees. & W. 546; s. c. 2 Thomp. Neg., example, the law has so high a re- 1st ed., p. 1105); or Kerwhacker v. gard for human life that, ordinarily, Cleveland &c. R. Co. (3 Ohio St. 172; it will not impute negligence to an s. c. 1 Thomp. Neg., 1st ed., p. 472); effort to preserve it, made by a per- or Colchester v. Brooke (7 Q. B. son who leaves a position of security 339), and Hartfield v. Roper (21 to relieve an imperilled fellow crea- Wend. (N. Y.) 615; s. c. 2 Thomp. ture, — as where a person, rushing Neg., 1st ed., p. 1121), are equally to in front of a railroad train to rescue be accepted as expressing rules of a child upon the track, lost his own the common law, it will result that life in so doing, his representative that law has more regard for an ass, was held entitled to recover dam- a hog, or an oyster, than for a child, ages. Eckert v. Long Island R. Co., "= 39 Md. 438. 43 N. Y. 502. See also Linnehan v. '"40 Cal. 188. 279 1 Thomp. Neg.] contributoey negligence. elder sister was hooked by the defendant's cow. The plaintiff was allowed to recover. In the course of the opinion of the court, it was said: "In a street comparatively unfrequented, as in this case, we certainly should not hold it evidence of negligence, even in children of more tender years ; and if the injury had been done to the younger sister, instead of the elder, while walking in the street in the day-time, within sixty feet of her father's house, when there was no particular reason to apprehend danger, and in a street almost entirely unused, we should not be prepared to say, as matter of law, that it was negli- gence on'the part of the parent. Such a rule would be harsh and un- reasonable, especially to the poor, in every town and city."^^ § 297. Modified and then Eepudiated in Illinois. — The rigor of the rule was much abated in Illinois, from the fact that in that State the rule of "comparative negligence" long prevailed there.'' ^ The child is held entitled to recover, although the parent was negligent in permitting it to be abroad, provided this negligence was slight, and the defendant's negligence causing the injury gross in compari- son. In this State also the condition in life and the means of the parent for restraining the child may be shown, as indicating the de- gree of care which the law will demand under the circumstances.''"' Later decisions in that State, as already shown, repudiate the doc- trine altogether.®" § 298. Modified in Case of Children Escaping upon the High- way. — The restriction of the rule of Hartfield v. Roper and cases where the injured child is in the actual custody of the parent, guar- dian, or other person guilty of contributory negligence, will be al- luded to hereafter."^ It would be perfectly profitless to discuss the question whether this distinction is well or ill founded, because the whole rule is ill founded. A sensible and just view is that if a child, though non sui juris, has not committed or omitted any act which would constitute negligence in a person of full discretion, an injury by the negligence of another can not be defended on the ground ,of contributory negligence of the parent or custodian in not restrain- ing the child. In such a case, the child being in a lawful place, and exercising what would be regarded as ordinary care in an adult, is "See also Mangam v. Brooklyn ""Chicago v. Major, 18 111. 349; R. Co., 38 N. y. 455; Jetter v. New Pittsburgh &c. R. Co. v. Bumstead, York &c. R. Co, 2 Keyes 154; 48 111. 221; Chicago &c. R. Co. v. O'Flaherty v. Union R. Co., 45 Mo. Gregory, 58 111. 226; Chicago v. Hes- 70; Hagan's Petition, 5 Dill. (U. S.) ing, 83 111. 204. 96; s. c. 7 Cent. L. J. 311. ""AraJe, § 264. ''Ante, §§ 264, 269. "^ Post, § 321, et seq. 280 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. entitled to recovery for an injury occasioned by the wrongful act of another, irrespective of the conduct of the parents. Thus, in Mc- Garry v. Loomis,^^ it was held that a child four years of age, being upon the sidewalk (which did not constitute negligence per se), and found by the jury to be in the exercise of proper care, was entitled to recover for an injury received by falling into a pool of hot water, formed adjacent to the sidewalk by the escape of steam and water from the waste-pipe of the works of the defendant. This is further illustrated by cases of children run over or otherwise injured in the highway, when their conduct is all that could be expected of adults reasonably prudent.'^* § 299. Kule does not Apply in Case of Children Injured by "Gross" Negligence. — It should be remembered that the rule as declared in Hartfleld v. Roper under no circumstances permits either a voluntary injury to one non sui juris, or conduct towards such a one amounting to "gross negligence." There is no rule more just than that the public are bound to exercise a higher degree of care towards persons of this class than towards people in general. °* Hence, conduct which as towards the general public might be fully up to the standard of "due care," plainly may exhibit "gross" negligence, or an inclination to do a willful injury, when considered with reference to the class of helpless beings under discussion."^ Therefore, in a case of this kind, the negligence of a parent in allowing abroad a child two and one-half years old did not prevent its recovery of damages for an injury which might have been avoided by the servants of the defendant by the exer- cise of care according to its condition.®" The more recent tendency «=63 N. Y. 104. This case would 60 Mo. 475; Phila. &c. R. Co. v. seem to be inconsistent with Leh- Spearen, 47 Pa. St. 300; Chicago &c. man v. Brooklyn, 29 Barb. 236. R. Co. v. Dewey, 26 111. 259; O'Mara "O'Brien v. McGIinchy, 68 Me. v. Hudson River R. Co., 38 N. Y. 552; Ihl V. Forty-second Street R. 445; Pennsylvania R. Co. v. Morgan, Co., 47 N. Y. 317; Pittsburgh &c. R. 82 Pa. St. 134; Smith v.. O'Connor, Co. v. Bumstead, 48 111. 221; Lynch 48 Pa. St. 218, 222; Walters v. Chi- v. Smith, 104 Mass. 52. See also cago &c. R. Co., 41 Iowa 71, 76. See, Lannen v. Albany Gas Co., 46 Barb, however. Singleton v. Eastern Coun- 264 (s. c' affirmed, 44 N. Y. 459), ties R. Co., 7 C. B. (N. S.) 287. The where Hogeboom, J., said: "I know contrary, declared in Bannon v. Bal- of no just or legal principle which, timore &c. R. Co., 24 Md. 108, would when the infant himself is free from seem to be founded on a misappre- negligence, imputes to him the nog- hension of authorities there cited, ligence of the parent, when if he "Walters v. Chicago &c. R. Co., were an adult he would escape it. 41 Iowa 71, 76; East Saginaw City This would be, I think, visiting the R. Co. v. Bohn, 27 Mich. 503; Bren- sins of the fathers upon the chil- nan v. Fair Haven R. Co., 45 Conn, dren to an extent not contemplated 284; Pittsburgh &c. R. Co. v. Cald- in the Decalogue, or in the more 5m- well, 74 Pa. St. 421. perfect digests of human law." *■ Kenyon v. New York &c. R. Co., "Isabel v. Hannibal &c. R. Co., 5 Hun (N. Y.) 479. 281 1 Thomp. Neg.] contributory negligence. of courts to obliterate the theory of degrees of negligence,^'' leaves the foregoing holdings more or less meaningless; and we shall see°^ that in the case of children trespassing on the premises of another, and there injured by the failure of the owner or occupier of the premises to keep the premises in such a condition as to provide for the safety of such trespassers, the law in general admits of no recovery, unless the conduct of the land-owner reaches the grade of wanton or willful negligence, or positive wrong."' § 300. The Same Subject, How Viewed in Missouri. — The case of StiUson V. Hannibal and St. Joseph Railroad Company'"' is notice- able upon this point. The court had previously repudiated the rule of imputed negligence declared in Hartfield v. Roper, as 'Tiarsh and repugnant to justice."'^ The facts of this case were these: The plaintiff, a "remarkably sprightly" child, eight or nine years of age, in company with her father, came upon a railroad-crossing which was blocked with freight-trains. The father having been over the cross- ing a few minutes before, when alone, was now returning with his little daughter. As they approached the crossing, the child said, "Papa, how did you get over?" The father then described how he had done so, and, coming nearer to the blockade, pointed out an aperture, a short distance east of the crossing, less than twenty inches in the clear, between the rear cars of two freight-trains, attached to one of which was a lighted locomotive, preparing to take the train out. Thereupon the child playfully sprang forward five or six feet in ad- vance of her father, to anticipate him in passing through the place indicated. Just as the child was making its way between the trains, the aperture was closed, on account of some slight impetus imparted to one of the trains, and she was severely injured. The court held that it should have been submitted to the jury whether the father was guilty of any contributory negligence, and whether such negligence, if any there was, was the proximate cause of the injury, in which ease such negligence was properly imputable to the child in an action by the child for damages.'^ "'Ante, § 18, et seq. (post, § 309), but held that the rule Tost, § 343. had no application in the presence "^ As to which, see post, § 1024, et of the parent, to whose authority seq.; and especially § 1026. the child is legally subordinated; "67 Mo. 671; s. c. 7 Cent. L. J. citing with approbation Waite v. 107. North-Bastern R. Co., El. Bl. & El. "Boland v. Missouri R. Co., 36 719; Ohio &c. R. Co. v. Stratton, 78 Mo. 484. 111. 88, and the language of the court '^ The court in this case recog- in Holly v. Boston Gas Co., 8 Gray nized the rule that only such care (Mass.) 132: "She was under the and prudence can be demanded of care of her father, who had the cus- a child as is equal to its capacity tody of her person and was respon- 282 INJUIUES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. § 301. Effect of Presence of Parent or Custodian at the Time of Injury. — It will be remembered that the rule of imputed negligence as declared by the English courts does not extend beyond that class of cases in which the parent or custodian is actually present and ex- ercising control over the movements of the child. ^^ This rule is held to prevail in cases even where the child is not so young but that it is capable of exercising some degree of care for its own safety. In such cases the conduct of the parent, if negligent and contributing to the injury, is held tp bar an action by the child. Thus, in Holly v. Bos- ton Gas Company,''^ the plaintiff, a child nine years old, was made sick by the escape of gas in her father's house. The facts were these : About the middle of the day the father detected the odor of gas in his residence, of which the agent of the defendant was subsequently noti- fied, who, late in the day, discovered the leak to be in the street ; con- sequently it could not be reached, without considerable inconvenience, until the next day. During the night the gas escaped in large quan- tities, but the parent took no other measures to protect the plaintiff than by twice visiting the plaintiff's sleeping-room and increasing the ventilation, although he himself was made sick by the escape of the gas. Early in the morning he found the plaintiff on the floor of her' room, nearly insensible, and found that she had been vomiting from the effects of the gas. Medical treatment was necessary to restore the sible for her safety. It was his duty plaintiff, while attempting to reach to watch over her, guard her from the water closet by passing around danger, and provide for her welfare; the end of the ditch upon the high- and it was hers to submit to his way, fell into the ditch and was seri- government and control. She was ously injured. In an action against entitled to the beneiit of his superin- the town for this injury, it was held tendence and protection, and was that she was not in the use of the consequently subject to any disad- street within the meaning of the vantages resulting from the exer- statute providing for the making cise of that parental authority and repairing of highways; but, in- which it was both his right and dependently of this circumstance, as duty to exert. Any want of ordi- the father had suffered this ditch to nary care on his part is attributable remain open for several weeks be- to her in the same degree as if she fore the accident, his negligence was was wholly acting for herself." such that it must be imputed to the "Ante, § 289. Contra is a case plaintiff, so as to preclude a recov- in Maine (Leslie v. Lewiston, 62 ery, even if she were otherwise en- Me. 468), which presents an ex- titled to recover. Said Danforth, J.: tension of the rule which is war- "It is not material that at the mo- ranted byno other reported decision, ment of the accident she was not The plaintiff was a child twelve under his immediate care and con- years of age. A ditch dug by the trol, or that at the time she was her- father's landlord, by the side of their self in the exercise of ordinary house, for drainage purposes, ex- care:" Hid. 4:72. Contra to the lat- tended into the street. There was ter part of this statement is the no way to go from the house to the later case of O'Brien v. McGlinchy, privy used therewith, without either 68 Me. 552, and other cases cited in crossing the ditch or passing around § 295, ante. that end of it which was in the " 8 Gray (Mass.) 123. street. On a very dark night, the 283 1 Thorap. Neg.J contributory negligTence. plaintiff's health. The jury were instructed that, being under the control of her father, she would have to bear the consequences of any want of ordinary care on his part in reference to the injury she had sustained, whether in tardily notifying the company of the escape of gas, or in failing to use ordinary care in withdrawing the plaintiff from its effects. This instruction was held to have accurately stated the case.'^ The Supreme Court of Iowa have held that there is not sufficient ground for the distinction between cases where the child is under the immediate control of the parent, guardian or other cus- todian, and cases where the child, when injured, is passing from such control and protection;'^ and the distinction seems to be unsubstan- tial and to rest upon pure casuistry. '''' § 302. The Same Subject in Other Jurisdictions. — The Supreme Court of Pennsylvania, however, having repudiated the rule of im- puted negligence, has shown no disposition to tolerate any form of it. Thus, in North Pennsylvania Railroad Company v. Mahoney,''^ it was held that the plaintiff, a child four years of age, was not barred of its action because at the time of its injury it was in the arms of a person to whom it had not been intrusted, who once rescued it from peril, but immediately negligently exposed it again to danger, where- by it was injured. And in Pittsburgh, etc.. Railroad Company v. Caldwell,''^ the plaintiff, a child five years of age, was permitted by her elder sister to accompany another child, eleven years of age, upon a walk. During their wanderings the pair got upon a street-car, in leaving which the plaintiff was injured, by the concurrent negligence of the defendant's driver and the child having the plaintiff in charge. The court held that the negligence of her companion could not be imputed to the plaintiff, because "she was not in her custody or sub- ject to her control. The plaintiff was in her company, but not in her keeping." Whether negligence of the parent or a proper custodian of the child in a similar situation would be imputed to the child, was in neither of the foregoing cases decided. An eminent judge held, '° Compare witli this case Lannen showing the extent to which the v. Albany Gas Co., 46 Barb. 264 courts of various States have repu- (affirmed 44 N. Y. 459). The above diated the doctrine of imputed neg- principle is further illustrated by ligence, the child was, in point of the cases of Ohio &c. R. Co. v. Strat- fact, when injured, in the immediate ton, 78 111. 88 ; s. c. 3 Cent. L. J. 415 ; presence of its parent, guardian, or Carter v. Towne, 98 Mass. 567 ; s. c. custodian, whose negligence was un- 103 Mass. 507; Morrison v. Brie R. successfully sought to be imputed to Co., 56 N. Y. 302. it. See, for example, St. Clair Street "Wymore v. Mahaska County, 78 R. Co. v. Eadie, 43 Ohio St. 91; s. c, Iowa 396, 399. 1 West. Rep. 88. "In very many of the cases cited "57 Pa. St. '187. in a preceding section {ante, § 293), "74 Pa. St. 421. 284 INJURIES TO CHILDREN AND OTHERS NGN SUI JURIS. [2d Ed. in a case of this character, where a child four and one-half years of age was permitted by its mother to accompany a brother twelve and one-half years of age upon an errand, that the parent was not negli- gent in sending the child, thus accompanied, to ride upon a street- car, and also that the older brother was required to exercise only the ordinary discretion of a youth of his age in caring for his younger brother. Therefore, the pair having been permitted to ride on the front platform of a street-car, sitting with their feet on the step, the younger was permitted to recover damages for an injury received in consequence of his jumping or being thrown from the car while in motion, the child being loosely held by his brother.*" In Belief on- iaine Railroad Company v. Snyder/^ a child of six, in the care of her sister, of twelve, to whom she had been intrusted by her parents, was permitted to recover for an injury which was the result of the con- current negligence of the servants of a railroad company and the elder sister.*^ § 303. Injuries where no Negligence of Parent or Custodian is Imputed. — Where the child is of such tender years as to be incapable of discerning circumstances of danger, or exercising any sufficient care for its safety personally, the child can not be said to be guilty of contributory negligence.*^ Therefore, where the circumstances of the case do not justify the imptitation of negligence on the part of others, or in jurisdictions where the rule of imputed negligence is not applied, the only question in the case is, whether the defendant has been guilty o(f any negligence which may reasonably be said to have been the cause: of the injury. Or, as expressed by Channell, B., in an action by a child three and one-half years old: "The doctrine of contributory negligence does not apply to an infant of tender years. To disentitle the plaintiff to recover, it must be shown that the injury was occasioned entirely by his own negligence."** If, however, the child is old enough to have some perception of danger, and capable of exercising other faculties for its self-preservation, it is held bound to '"Cooley, J., in East Saginaw Pa. St. 187; Kay v. Pennsylvania R. City R. Co. V. Bohn, 27 Mich. 503. Co., 65 Pa. St. 269; Norrolk &c. R. »'18 Ohio St. 399. See also 24 Co. v. Ormsby, 27 Gratt. 455; Wal- Ohio St. 670'. ters v. .Chicago &c. R. Co., 41 lov^a '- This is contrary to the decision 71 ; Schmidt v. Milwaukee &c. R. of Waite v. North-Eastern R. Co., Co., 23 Wis. 186; Government Street El. Bl. & El. 719, 728, and perhaps R. Co. v. Hanlon, 53 Ala. 70; Frick the only case of its kind. v. St. Louis &c. R. Co., 6 Cent. L. J. "^Mangam v. Brooklyn R. Co., 38 317; Chicago &c. R. Co. v. Gregory, N. Y. 455; O'Mara v. Hudson River 58 111. 226; Gardner v. Grace, 1 R. Co., 38 N. Y. 445; Daley v. Nor- Fost. & Fin. 359. wich &c. R. Co., 26 Cofin. 591; North ** Gardner v. Grace, supra. Pennsylvania R. Co. v. Mahoney, 57 285 IThomp. Neg.] contributory negligence. do so ; but, as before stated, only as efficiently as can be reasonably ex- pected of a child of its maturity and capacity.*" Article II. Degree of Care Expected of Children. Section Section 306. At what age children are to be gence not matter of law, hut deemed sui juris. question for jury. 307. Whether this is a question of 314. Continued, with fuller explana- law or of fact. tions of the circumstances. 308. Degree of care required of chil- 315. Age at which infants charged dren. with ordinary care of adults. 309. Age considered with reference 316. Injuries ascribed to accident to intelligence, experience or misfortune due to childish and surrounding circum- inexperience: no evidence of stances. negligence on part of de- 310. Age at which children deemed fendant. incapable of negligence as 317. Prima facie evidence of negli- matter of law. gence and absence of contrib- 311. Age and circumstances at utory negligence in cases of which contributory negli- injuries to children, contin- gence imputable as matter of ued. law. 318. Examples of injuries to chil- 312. The same subject continued. dren where the defendant 313. Age and circumstances under was exonerated. which contributory negli- § 306. At what Age Children are to be Deemed Sui Juris.^ — This brings us to the important inquiry at what age children are to be deemed sui juris so as to be capable of contributory negligence, and at what age not; at what age and under what circumstances this question can be decided one way or the other. as a question of law; at what age and under what circumstances it must be submitted to the jury as a question of fact. This inquiry is important in a twofold aspect. In States where the negligence of the parent in not restrain- ing the child from situations of danger is imputed to the child, if the infant is non sui juris, such negligence, when clearly established, con- stitutes a bar to the action of the child, as well as of the parent for injuries to the former. However, if it can be shown that the child, at the time of the injury, was sui juris, capable of caring for its safety, the parents are then justified in allowing the child a certain degree of freedom of action, and it is then incumbent upon the child to exercise vigilance for its protection, but only such as can reason- ably be expected of a child of its maturity and capacity.^^ In juris- ^ See the sections immediately *" Lynch v. Nurdin, 1 Q. B. 29 ; s. following. c. 4 Per. & Dav. 672; s. c. 2 Thomp. a This section is cited in §§ 290, Neg., 1st ed., p. 1140; Railroad Go. v. 331. Gladmon, 15 Wall. 401; Railroad Co, 286 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. dictions where the doctrine of imputed negligence does not obtain, when the child sues for his own benefit for personal injuries inflicted on him, the application of the doctrine of contributory negligence depends upon his capability of exercising judgment and discretion. If he is of such tender years that he is conclusively presumed in- capable of judgment and discretion and of owing a duty to another, neither contributory negligence on his part nor on that of his parent can be set up to defeat the recovery.*^ In view of this doctrine two questions generally arise: 1. At what age or period of a child's de- velopment shall it be held to be sui juris for the purpose of cases of this kind; 2. Whether this is a question of law or a question of fact. § 307. Whether this is a Question of Law or of Fact. — On this subject the Supreme Court of Pennsylvania have said: "The law fixes no arbitrary period when the immunity of childhood ceases and- the responsibilities of life begin. For some purposes majority is the rule. But it is not so here. It would be irrational to hold that a man was responsible for his negligence at twenty-one years of age, and not responsible a day or a week prior thereto. At what age, then, must an infant's responsibility for negligence be presumed to V. Stout, 17 Wall. 657; Baltimore &c. R. Co. V. Fryer, 30 Md. 47; The State V. Baltimore &c. R. Co., 24 Md. 84; Baltimore &c. R. Co. v. McDonnell, 43 Md. 534; McMahon v. Northern Central R. Co., 39 Md. 438; East Sag- inaw City R. Co. v. Bohn, 27 Mich. 503, 514; Robinson v. Cone, 22 Vt. 213; s. c. 2 Thomp. Neg., 1st ed., p. 1129; Birge v. Gardiner, 19 Conn. 507; Bronson v. Southbury, 37 Conn. 199; Ranch v. Loyd, 31 Pa. St. 358; Smith v. O'Connor, 48 Pa. St. 218; Pennsylvania R. Co. v. Kelly, 31 Pa. St. 372; Oakland R. Co. v. Fielding, 48 Pa. St. 320; Mowrey v. Central Park R. Co., 51 N. Y. 667; Costello V. Syracuse &c. R. Co., 65 Barb. (N. Y.) 92; Pendril v. Second Ave. R. Co., 2 Jones & Sp. (N. Y.) 481; Man- gam V. Brooklyn R.Co.,38 N. Y. 461; Thurber v. Harlem &c. R. Co., 60 N. Y. 326; O'Mara v. Hudson &c. R. Co., 38 N. Y. 445; Sheridan v. Brooklyn &c. R. Co., 36 N. Y. 39; Fallon v. Central Park R. Co., 64 N. Y. 13; Casey v. New York &c. R. Co., 6 Abb. N. C. (N. Y.) 104; Reynolds v. New York &c. R. Co., 58 N. Y. 248; McGovern v. New York &c. R. Co., 67 N. Y. 417 ; Mayer v. Central Park R. Co., 67 N. Y. 52; Haycroft v. Lake Shore &c. R. Co., 2 Hun (N. y.) 489; Phila. &c. R. Co. v. Spearen, 47 Pa. St. 300, 304; Pittsburgh &c. R. Co. v. Caldwell, 74 Pa. St. 421; Brown v. European &c. R. Co., 58 Me. 384; Paducah &c. R. Co. v. Hoehl, 12 Bush (Ky.) 41; Lawler v. Northampton Gas Co., 2 Allen (Mass.) 307; Lynch v. Smith, 104 Mass. 53; Mulligan v. Curtis, 100 Mass. 512; McMillan v. Burlington &c. R. Co., 46 Iowa 231; Chicago &c. R. Co. V. Becker, 76 111. 25; s. c. 84 111. 483; Weick v. Lander, 75 111. 93; Kerr v. Forgue, 54 111. 482; Chi- cago &c. R. Co. V. Murray, 71 111. 601; Chicago &c. R. Co. v. Stumps, 69 111. 409; Toledo &c. R. Co. v. Miller, 76 111. 278; Boland v. Mis- souri &c. R. Co., 36 Mo. 484; Kemp- inger v. St. Louis &c. R. Co., 3 Mo. App. 581; Coleman v. South-Eastern R. Co., 4 Hurl, & Colt. 699; Ewen v. Chicago &c. R. Co., 38 Wis. 613. The contrary, decided in Honegsberger V. Second Avenue R. Co., 1 Keyes (N. Y.) 570; 33 How. Pr. (N. Y.) 195; 2 Abb. App. Dec. 378 (reversing 1 Daly (N. Y.) 89) ; Burke v. Broad- way &c. R. Co., 49 Barb. (N. Y.) 529; and Squire v. Central Park R. Co., 4 Jones & Sp. (N. Y.) 436, is not the law. *' Pratt Coal &c. Co. v. Brawley, 83 Ala. 371; s. c. 3 Am. St. Rep. 571; 3 South. Rep. 555. 287 1 Thomp. Neg.] contributory negligence. commence? This question can not be answered by referring it to the jury. This would furnish us with no rule whatever. It would give us a mere shifting standard, affected by the sympathies or preju- dices of the jury in each particular case. One jury would fix a period of responsibility at fourteen and another at twenty or twenty-one. This is not a question of fact for the jury ; it is a question of law for the court. Nor is its solution difficult. The rights, duties, and re- sponsibilities of infants are clearly defined by the text writers as well as by numerous decisions. * * * "We have seen that the law pre- sumes that at fourteen years of age an infant has sufficient discretion and understanding to select a guardian and contract a lawful mar- riage ; is capable of harboring malice and of taking human life under circumstances that constitute the offense of murder. It, therefore, requires no strain to hold that at fourteen an infant is presumed to ' have sufficient capacity and understanding to be sensible of danger, and to have power to avoid it. And this pres^imption ought to stand until it is overthrown by clear proof of the absence of such discretion and intelligence as is usual with infants of fourteen years of age."^* Quoting this language, the Court of Appeals of New York reason thus : "The penal code provides that when an infant is charged with crime, upon the prosecution rests the burden of showing that the de- fendant has sufficient intelligence and maturity of judgment to ren- der him capable of harboring a criminal intent until the age of twelve years, at which age the presumption of incapacity ceases. Now, while this statute does not undertake to prescribe, and does not neces- sarily affect the rule to be applied in civil actions, it suggests, as asserted in the Nagle Case [above quoted from], an age to which the courts can with safety limit the presumption of incapacity on the part of an infant to appreciate the perils incident to crossing railroad tracks. This presumption may, in a proper case, be so far overborne by evidence as to present a question for the jury, and then the age of the injured party may doubtless be considered by the jury in connec- tion with the facts indicating a lack of comprehension of the dan- gerous situation. But, in the absence of evidence tending to show that an injured infant twelve years old was not qualified to under- stand the danger and appreciate the necessity for observing that de- gree of caution in crossing a railroad track which an adult would, he must be deemed sui juris."^^ The Supreme Court of Texas re- ^ Nagle V. Allegheny Valley R. Co., ker, J. For the presentation of the 88 Pa. St. 35, quoted with approval, view that it is under all circum- Tucker v. New York &c. R. Co., 124 stances a question of fact — a view N Y. 308, 317. clearly untenable — see Chicago City »° Tucker v. New York &o. R. Co., R. Co. v. Wilcox, 138 111. 370, 383. 124 N. Y. 308, 318, opinion by Par- 288 INJURIES TO CHILDREN AXD OTHERS NON SUI JURIS. [2d Ed. fuses to afSrin or deny the doctrine of the Supreme Court of Penn- sylvania above quoted, but hold that in the case of a female child be- tween the ages of thirteen and fourteen, the question of her intelli- gence to appreciate the dangers of going on board a tug boat moored to the wharf, at the invitation of persons on board of it, she having been sent to the boat by her parents on the errand of carrying milk for the use of the captain, by reason of which act she fell into the water and was drowned, — presented a question of fact for the jury.'" § 308. Degree of Care Required of Children.^ — Children who have arrived at sufficient age that they may be presumed in law to be capable of exercising some judgment and discretion and some care for their own safety, are indeed held to the exercise of ordinary or reasonable care. But this is not necessarily the ordinary or reason- able care required of adults; it is rather the ordinary or reasonable care which ought to be expected of children of the age, knowledge, experience and capacity of the child that was injured, — in other words, the degree of care graduated to the age and capacity of the child." ^ Developing the principle and applying it to the facts in " Cook V. Houston Direct Nav. Co., 76 Tex. 353, 358; s. c. 13 S. W. Rep. 475. a This section is cited in §§ 36, 493. '^Post, § 309; Omaha &c. R. Co. v. Morgan, 40 Neb. 604; s. c. 59 N. W. Rep. 81; Cook v. Houston Direct Nav. Co., 76 Tex. 353; s. c. 13 S. W. Rep. 475; Wright v. Detroit &c. R. Co., 77 Mich. 123; s. c. 42 Am. & Eng. R. Cas. 140; 43 N. W. Rep. 765; Western &c. R. Co. v. Young, 83 Ga. 512; s. c. 42 Am. & Eng. R. Cas. 135; 10 S. E. Rep. 197; Byrne v. New York &c. R. Co., 83 N. Y. 620; Cleve- land Rolling Mill Co. v. Corrigan, 46 Ohio St. 283; s. c. 2 L. R. A. 385; 6 Rail. & Corp. L. J. 31; 21 Ohio L. J. 217; 20 N E. Rep. 466; Houston &c. R. Co. V. Boozer, 70 Tex. 530; s. c. 8 Am. St. Rep. 615; 8 S. W. Rep. 119; Pratt Coal &c. Co. v. Brawley, 83 Ala. 371; s. c. 3 Am. St. Rep. 751; 3 South. Rep. 555; Western &c. Co. v. Young, 81 Ga. 397; s. c. 7 S. E. Rep. 912; Kansas &c. R. Co. v. Whipple, 39 Kan. 531; s. c. 18 Pac. Rep. 730; Illinois &c. R. Co. v. Slater, 129 111. 91; s. c. 21 N. E. Rep. 575; Georgia &c. R. Co. v. Evans, 87 Ga. 673; s. c. 13 S. E. Rep. 580; Swift v. Staten Island &c. R. Co., 123 N. Y. 645; Westerfield v. Levis, 43 La. An. 63; s. c. 9 South. Rep. 52; Murphy v. VOL. 1 THOMP. NEG. — 19 St. Louis &c. R. Co., 43 Mo. App. 342; Ridenhour v. Kansas City Cable R. Co., 102 Mo. 270; s. c. 14 S. W. 760; Barry v. New York &c. R. Co., 92 N. Y. 289; Donoho v. Vulcan Iron Works, 7 Mo. App. 447; Dow- ling V. Allen, 88 Mo. 293; s. c. 5 West. Rep. 372; Moebus v. Herr- mann, 11 Cent. Rep. 90; s. c. 108 N. Y. 349; 15 N. E. Rep. 415; Baker v. Flint &c. R. Co., 68 Mich. 90; s. c. 12 West. Rep. 485; 35 N. W. Rep. 836; Cooper v. Lake Shore &c. R. Co., 66 Mich. 261; s. c. 10 West. Rep. 184; 33 N. W. Rep. 306; Washing- ton &c. R. Co. V. Gladmon, 15 Wall. (U. S.) 401; Sioux City &c. R. Co. V. Stout, 17 Wall. (U. S.) 657; Birge V. Gardiner, 19 Conn. 507; Daley v. Norwich &c. R. Co., 26 Conn. 591; Powell V. New York &c. R. Co., 22 Hun (N. Y.) 56; Reynolds v. New York &c. R. Co., 58 N. Y. 248; Thur- ber V. Harlem Bridge &c. R. Co., 60 N. Y. 326 ; Mowrey v. New York &c. R. Co., 51 N. Y. 666; McGovern v. New York &c. R. Co., 67 N. Y. 417; Dowling V. New York &c. R. Co., 90 N. Y. 670; Dowd v. Chicopee, 116 Mass. 93; Plumley v. Birge, 124 Mass. 57; Lynch v. Smith, 104 Mass. 52 ; Carter v. Towne, 98 Mass. 567; Mann v. Reed, 4 Allen (Mass.) 431; Murray v. Richmond &c. R. Co., 93 N. C. 92; Merryman v. Chl- 289 1 Thomp. Neg.] contkibutory negligence. judgment, it has been well reasoned that in the case of a child of tender years, where the circumstances would justify an inference that he was misled or confused in respect to the actual situation, and that his conduct was not unreasonable in view of those circumstances and his age, the question of contributory negligence is for the jury. cage &c. R. Co., 85 Iowa 634; s. c. 52 N. W. Rep. 545; McMillan v. Bur- lington &c. R. Co., 46 Iowa 231; Hickey v. Taaffe, 105 N. Y. 26, 37; s. c. 12 N. E. Rep. 286; Messenger v. Dennie, 137 Mass. 197; Twist v. Winona &c. R. Co., 39 Minn. 164; s. c. 39 N. W. Rep. 402; Wendell v. New York &c. R. Co., 91 N. Y. 420; Chicago &c. R. Co. v. Eininger, 114 111. 79; Brown v. European &c. R. Co., 58 Me. 384; Achtenliagen v. Watertown, 18 Wis. 331; s. c. 86 Am. Dec. 769; Masser v. Chicago &c. R. Co., 68 Iowa 602; s. c. 27 N. W. Rep. 776; Ludwig v. Pillsbury, 35 Minn. 256; s. c. 28 N. W. Rep. 505; Gillespie v. McGowan, 100 Pa. St. 144; Chicago &o. R. Co. v. Becker, 76 111. 25; Chicago &c. R. Co. v. Mur- ray, 62 111. 326; Kerr v. Forgue, 54 111. 482; Linck v. Scheffel, 32 111. App. 17; Keller v. Gaskell, 20 Ind. App. 502; s. c. 50 N. B. Rep. 363; Western &c. R. Co. v. Rogers, 104 Ga. 224; s. c. 30 S. E. Rep. 804; s. c. 4 Am. Neg. Rep. 606 (construing Civ. Code Ga., § 2901) ; Pierce v. Con- ners, 20 Colo. 178; s. c. 37 Pac. Rep. 721; Metropolitan R. Co. v. Palvey, 5 D. C. App. 176; s. c. 23 Wash. L. Rep. 53; Louisville &c. R. Co. v. Sears, 11 Ind. App. 654; s. c. 38 N. E. Rep. 837; Springiield &c. R. Co. V. Welsch, 155 111. 511; s. c. 40 N. E. Rep. 1034; aff'g s. c. 56 111. App. 196; Pekin v. McMahon, 154 III. 141; s. c. 27 L. R. A. 206; 39 N. E. Rep. 484, affg 53 111. App. 189; Wabash R. Co. v. Jones, 53 111. App. 125; Baltimore &c. R. Co. v. Web- ster (D. C. App.), 23 Wash. L. Rep. 322 (under twelve years of age) ; Turner v. Norfolk &c. R. Co., 40 W. Va. 675; s. c. 22 S. B. Rep. 83 (boy sixteen years of age) ; Hayes v. Nor- cross, 162 Mass. 546; s. c. 39 N. E. Rep. 282; Queen v. Dayton Coal &c. Co., 95 Tenn. 458; s. c. 30 L. R. A. 82; 49 Am. St. Rep. 935; 32 S. W. Rep. 460; Lake Erie & W. R. Co. v. Mackey, 53 Ohio St. 370; s. c. 29 L. R. A. 757; 34 Ohio L. J. 259; 41 N. B. Rep. 980; Norton v. Volzke, 158 111. 402; s. c. 41 N. E. Rep. 1085; 49 Am. St. Rep. 167; Keller v. 290 Haaker, 2 App. Div. 245; s. c. 73 N. Y. St. Rep. 374; 37 N. Y. Supp. 792; Roth v. Union Depot Co., 13 Wash. 525; s. c. 31 L. R. A. 855; 43 Pac. Rep. 641; 44 Pac. Rep. 253; Penny v. Rochester R. Co., 7 App. Div. 595; s. c. 40 N. Y. Supp. 172; 74 N. Y. St. Rep. 732; Consolidated Traction Co. v. Scott, 58 N. J. L. 682; s. c. 33 L. R. A. 122; 34 Atl. Rep. 1094; 4 Am. & Eng. R. Cas. (N. S.) 371; Riley v. Missouri &c. R. Co., 68 Mo. App. 652; Felton v. Aubrey, 74 Fed. Rep. 350; s. c. 43 U. S. App. 278; 20 C. C. A. 436 ("looking to his habits and his knowledge of the danger to be apprehended") ; Cleve- land Terminal &c. R. Co. v. Heiman, 16 Ohio C. C. 487; [citing Messenger V. Dennie, 137 Mass. 197; s. c. 50 Am. Rep. 295; Masser v. Chicago &c. R. Co., 68 Iowa 602; Bcliff v. Wabash &c. R. Co., 64 Mich. 196; Moore v. Pennsylvania R. Co., 99 Pa. St. 301; s. c. 44 Am. Rep. 106; Reynolds v. New York &c. R. Co., 58 N. Y. 248; Tucker v. New York &c. R. Co., 124 N. Y. 308] ; Texas &c. R. Co. v. Phil- lips, 91 Tex. 278; s. c. 42 S. W. Rep. 852, rev'g 40 S. W. Rep. 344; Balti- more &c. R. Co. V. Cumberland, 12 App. D. C. 598; s. c. 26 Wash. L. Rep. 306 [citing Washington &c. R. Co. V. Gladmon, 15 Wall. (U. S.) 401; s. c. 21 L. ed. 114; Sioux City &c. R. Co. V. Stou.t, 17 Wall. (U. S.) 660; s. c. 21 L. ed. 748]; Omaha &c. R. Co. V. Cook, 42 Neb. 577; s. c. 60 N. W. Rep. 899; rehearing denied in 42 Neb. 905; s. c. 62 N. W. Rep. 235; San Antonio &c. R. Co. v. Bergsland, 12 Tex. Civ. App. 97; s. c. 3 Am. & Bng. Rail. Cas. (N. S.) 304; 34 S. W. Rep. 155, 157; Adams v. Southern R. Co., 84 Fed. Rep. 596; s. c. 52 U. S. App. 433; 28 C. C. A. 494; 9 Am. & Eng. R. Cas. (N. S.) 747; Duffy V. Missouri &c. R. Co., 19 Mo. App. 380; s. c. 2 West. Rep. 201; Lake Shore &c. R. Co. v. Orvis, 1 Ohio Dec. 492. In one case the judge charged as follows: "It is the duty of every person crossing a railroad track to use their eyes to see the approach of trains, to see the trains that are approaching, and to use INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. although he may have omitted some precaution which^ in the case of an adult, would be deemed conclusive evidence of negligence.®^ § 309. Age Considered with Reference to Intelligence, Experience and Surrounding Circumstances.* — One court has reasoned that a child can only be expected and required to exercise that degree of care and discretion which a child of the same age would ordinarily and naturally use and exercise under the same circumstances and in the same situation, having regard to its natural intelligence or want of intelligence.*' This, and all the preceding eases lay stress upon the ingredient not only of the age, but also of the capacity of the' child, and many of the cases qualify the doctrine by referring to the stand- ard of age, intelligence, experience, knowledge, capacity and discre- tion."* The meaning can only be that no ideal standard can be erected by which the jury are to determine whether the child in the particular case exercised that measure of care which the law ought to expect and require, for its own safety. Two lads of equal age and natural capacity, one of them raised in the country and the other in the city, might approach a given danger, and the one would be per- fectly competent to care for himself, while the other would be help- less in the face of it. Therefore, the capacity, the intelligence, the knowledge, the experience and the discretion of the child are always evidentiary circumstances — circumstances with reference to which each party has the right to introduce evidence, which evidence is to be considered by the jury. their ears also; and it is their duty Missouri &c. R. Co., 19 Mo. App. 380; to look both ways before entering s. c. 2 West. Rep. 201; Indianapolis upon a crossing of a railroad, if it &c. R. Co. v. Pitzer, 109 Jnd. 179; can be done; and it is negligence s. c. 4 West. Rep. 256; Collins v. on the part of the person where he South Boston Horse R. Co., 142 can see, and does not try to see, Mass. 301; 2 N. E. Rep. 649; Pueblo the approaching train; and I charge Electric Street R. Co. v. Sherman, you that this applies to the de- 25 Colo. 114; s. c. 53 Pac. Rep. 322; ceased." This was held, error; Consolidated City &c. R. Co. v. Carl- since, although the rule thus laid son, 58 Kan. 62; s. c. 48 Pac. Rep. down would have been proper in the 635 ; Washington &c. R. Co. v. Glad- case of an adult, under ordinary cir- mon, 15 Wall. (U. S.) 401; s. c. 21 cumstances, it was not applicable to L. ed. 114 ; Chicago &c. R. Co. v. a child under nine years of age, Becker, 76 111. 25. under the circumstances of this "^ Barry v. New York &c. R. Co., case: Finklestein v. New York &c. 92 N. Y. 289. R. Co., 41 Hun (N. Y.) 34; s. c. a This section is cited in §§ 36, 2 N. Y. St. Rep. 680; Altemeier v. 300, 308, 338, 339, 493. Cincinnati Street R. Co., 4 Ohio N. "'Omaha &c. R. Co. v. Cook, 42 P. 224; s. c. 4 Ohio Leg. News 300; Neb. 577; s. c. 60 N. W. Rep. 899; Muller V. Brooklyn R. Co., 18 App. rehearing denied in 42 Neb. 905 and Div. 177; 45 N. Y. Supp. 954; Gal- 62 N. W. Rep. 235. veston &c. R. Co. v. Moore, 59 Tex. "* Lorence v. EUenburgh, 13 Wash. 64; s. c. 46 Am. Rep. 265; Duffy v. 341; s. c. 43 Pac. Rep. 30. 291 1 Thonip. Neg.] contributory negligence. § 310. Age at which Children Deemed Incapable of Negligence, as Matter of Law.* — Children of very tender years are conclusively pre- sumed to be incapable of exercising care and judgment to avert in- juries from themselves, and, as matter of law, contributory negligence is not imputable to them."^ a This section is cited in. § 374. "Louisville &c. R. Co. v. Sears, 11 Ind. App. 654; s. c. 38 N. B. Rep. 837; DufCy v. Missouri &c. R. Co., 19 Mo. App. 380; s. c. 6 West. Rep. 200; Dicken v. Liverpool Salt &c. Co., 41 W. Va. 511; s. c. 23 S. E. Rep. 582; Gunn v. Ohio River R. Co., 42 W. Va. 676; s. c. 36 L. R. A. 575 (tender years); Merritt v. Hepen- stal, 25 Can. S. C. 150 (tender years). When the age of a child is so tender as to admit of no doubt as to its capacity to avoid danger, the court will not submit the ques- tion of its contributory negligence to the jury, but will decide It as a matter of law. It has been so de- cided in the case of a child one year and. five inonths old: Kreig v. Wells, 1 E. D. Smith (N. Y.) 74. Twenty-two months old: Bottoms v. Seaboard &c. R. Co., 114 N. C. 699; s. c. 25 L. R. A. 784. Two years old: Hartfield v. Roper, 21 Wend. (N. Y.) 615; s. c. 2 Thomp. Neg. 1st ed. 1121; Wright v. Maiden &c. R. Co., 4 Allen (Mass.) 283. Tioo years and four months old: Callahan v. Bean, 9 Allen (Mass.) 401; Toledo &c. R. Co. v. Grable, 88 111. 441. Two years and nine months old: Evansville &c. R. Co. v. Wolf, 59 Ind. 89; O'Plaherty v. Union R. Co., 45 Mo. 70. Under three years old: Barnes v. Shreveport City R. Co., 47 La. An. 1218; s. c. 17 South. Rep. 782. Three years old: Mascheck v. St. Louis R. Co., 3 Mo. App. 600. Three years and four months old: Woeckner v. Erie Electric Motor Co., 176 Pa. St. 451; s. c. 38 W. N. C. 549; 35 Atl. Rep. 182. Three and a half years old: Rice v. Crescent City R. Co., 51 La. An. 108; s. c. 24 So. Rep. 791. Three years and seven months old: Mangam v. Brooklyn R. Co., 38 N. Y. 455; s. c. 36 Barb. (N. Y.) 230. Nearly four years old: McLain v. Van Zandt, 7 Jones & Sp. (N. Y.) 347. Four years old: Lehman v. Brooklyn, 29 Barb. (N. Y.) 234; North Pennsyl- vania R. Co. V. Mahoney, 57 Pa. St. 187; Shippy v. Au Sable, 85 Mich. 280; s. c. 48 N. W. Rep. 584; Pink V. Missouri Furnace Co., 10 Mo. App. 61; Summers v. Bergner &c. Brew- ing Co., 143 Pa. St. 114; s. c. 28 W. N. C. 431; 48 Phila. Leg. Int. 442; 22 Atl. Rep. 707; 24 Am. St. Rep. 518; Jones v. Brooklyn Heights R. Co., 10 Misc. (N. Y.) 543; s. c. 64 N. Y. St. Rep. 22; 31 N. Y. Supp. 445. Under five years old: Lafay- ette &c. R. Co. V. Huffman, 28 Ind. 287. Five years old: Jeffersonville &c. R. Co. V. Bowen, 40 Ind. 545; s. c. 49 Ind. 154; McGarry v. Loomis, 63 N. Y. 104; Pittsburgh &c. R. Co. V. Caldwell, 74 Pa. St. 421; Voegeli V. Pickel Marble &c. Co., 49 Mo. App. 643; Metropolitan West Side Blev. R. Co. V. Kersey, 80 111. App. 301; s. c. 4 Chic. L. J. Wkly. 112. Under six years old: Bay Shore R. Co. v. Harris, 67 Ala. 6. Six years old: Chicago V. Starr Administrator, 42 111. 174; Meeks v. Southern Pacific R. Co., 52 Cal. 602; Walbridge v. Schuylkill Electric R. Co., 190 Pa. St. 274; s. c. 43 W. N. C. 560; 42 Atl. Rep. 689; Chicago City R. Co. V. Wilcox, 138 111. 370; s. c. 44 Alb. L. J. 70; 27 N. E. Rep. 899; affg s. c. 33 111. App. 450; Central Trust Co. V. Wabash &c. R. Co., 31 Fed. Rep. 246; Mackey v. Vicksburg, 64 Miss. 777. Seven years old: Pitts- burgh &c. R. Co. v. Vinings, 27 Ind. 513; Indianapolis &c. R. Co. v. Pitzer, 109 Ind. 179; s. c. 7 West. Rep. 401. Seven years and three months old: Chicago &e. R. Co. v. Welsh, 118 111. 572; s. c. 6 West. Rep. 540. Eight years old: Taylor v. Delaware &c. R. Co., 113 Pa. St. 162; s. c. 4 Cent. Rep. 628. In one jurisdiction it is held that a child four or five years old is not, as a matter of law, to be charged with contributory negligence in not exer- cising reasonable care to avoid a personal injury In the view of the court, a child of such tender age is prima facie exempt from responsi- bility; but if it is of exceptional maturity or capacity, that fact must be properly pleaded in order to charge it with contributory negll- 29.2 INJURIES TO CHILDREN AND OTHERS NGN SUI JURIS. [2d Ed. § 311. Age and Circumstances at which Contributory Negligence Imputable as Matter of Law. — A child fourteen years old is presumed sui juris, in the absence of evidence tending to overthrow this pre- sumption. *' Another court, by analogy to a criminal statute, has fixed the period at twelve years, making it in like manner a rebuttable presumption."^ A boy nine years old, riding for sport on the run- ners of sleighs in the public streets, suddenly left a sleigh which was in motion, without looking behind him, and was run over by defend- ant's horse and sleigh. It was held that he was guilty of contribu- tory negligence fatal to recovery of damages.®^ A bright, intelligent boy of thirteen years of age was killed while crossing a railroad track. The summer before he had worked on a farm and received $13 a month and board for his services, but at the time of the accident he was living at home and going to school. The court held that he was sui juris, and hence, under the rule in that State which requires the plaintiff to negative contributory negligence, in the absence of evidence that he was in the exercise of reasonable care, the court held that the plaintiff should have been non-suited.'"' In a case which seems to have been wrongly decided, a bright, active boy seven years of age, capable of understanding the peril which he recklessly encoun- tered, and which caused his death, was held to have been culpably neg- ligent, no allowance being made for his childish impulses and lack of judgment.^"" And another court went to the severe length of holding that a strong, healthy boy, eight years and seven months old, bright and intelligent for his age, is prima facie responsible for his tres- passes, and chargeable with contributory negligence, the degree of care required of him, of course, having regard to his age and intelli- gence, in which case evidence is ad- child was guilty of negligence in missiile to show its capacity to take permitting the child to be at large care of itself; and the question is was immaterial, in such an action: not a question of law, but of fact for Gumming v. Brooklyn City R. Co., the jury: Westbrook v. Mobile &c. 104 N. Y. 669; s. c. Cent. Rep. 394. R. Co., 66 Miss. 560; s. c. 39 Am. & *= Nagle v. Allegheny Valley &c. Eng. R. Cas. 374; 6 Rail. & Corp. R. Co., 88 Pa. St. 35. b. J. 235; 6 South. Rep. 321. In the " Tucker v. New York &c. R. Co., view of another court, the facts that 124 N. Y. 308; s. c. 36 N. Y. St. Rep. a five year old child was upon a 272; 26 N. E. Rep. 916; rev'g 33 N. crowded public street, about to cross Y. St. Rep. 863 ; 11 N. Y. Supp. 692. it, and waited for one train to pass "' Messenger v. Dennie, 137 Mass. the crosswalk on which she was; 197; s. c. 50 Am. Rep. 295; s. c, on and that, for the purpose of cross- subsequent trial, 141 Mass. 335. ing, she passed to the rear of the ™ Reynolds v. New York &c. R. train, which was stopping, and pre- Co., 58 N. Y. 248. vented plaintiff from seeing the ^""Wendell v. New York &c. R. Co., train coming from behind such cars, 91 N. Y. 420. Similarly, see Mc- and by which she was struck,— i Carthy v. New York &c. R. Co., 37 showed no negligence on her part. App. Div. 187; s. c. 55 N. Y. Supp. Whether or not the mother of the 1013. 293 1 Thomp. Neg.] contributory negligence. gence, and to the circumstances in which he was placed."^ A railroad company has been held not liable for an injury to a boy of eight, who, after being warned not to do so, mounted an engine at a time when he was not seen, and sustained injury in jumping off after it began to move, although no whistle was blown or other signal given. ^"^ A girl nine years old, in alighting from a train, stumbled and fell over a rail and broke her arm. It was held that an action against the rail- road company was not maintainable ; but the decision was put rather on the ground that the railroad company was not guilty of any negli- gence or fault.'"^ It has been held that a boy thirteen years old who is injured while playing on a railroad turn-table by allowing his legs to project over the end, so that one is caught between it and an em- bankment, who testifies that he knew of the danger and could h^ve avoided it easily if he had thought of it, is guilty of such contributory negligence as will prevent recovery.^"* § 312. The Same Subject Continued. — So, it has been held that a boy ten years old, of average intelligence, having a general knowledge of the structure and operation of a railway turn-table, having been habitually warned by his father not to play upon it as it was danger- ous, and knoTv'ing that the railway company prohibited children from playing upon it, is guilty of contributory negligence where he engages with other boys in swinging upon it while it is in motion, whereby he is injured, although he might not have been of sufficient age and dis- cretion to understand the full extent and danger to which his conduct exposed him.^"^ So, contributory negligence was ascribed to a boy eleven years old for playing or lounging between two parallel railway tracks only twelve feet apart.^"" So, a boy nearly eleven years old, active and intelligent, has been pronounced by the court not incapa- ble of taking care of himself upon the street ;^°^ and so of a boy thir- teen years of age.'^"* A child of nine, who had been warned of the danger, climbed from a window to a painter's scaffold, fell to the ground, and was injured. It was held that her mother had no right of action.^"' A boy twelve years old lay asleep on a railroad track "' Cleveland &c. R. Co. v. Tartt, ^"' Masser v. Chicago &c. R. Co., 68 64 Fed. Rep. 830; s. c. 12 C. C. A. Iowa 602, 605. 625. "'McMahon v. New York, 33 N. "■^ Murray v. Richmond &c. R. Co., Y. 642, 647. See also Nagle v. Alle- 93 N. C. 92. gheny &c. R. Co. (Sup. Ct. Pa. 1879), i"' Potter V. Wilmington &c. R. 6 W. N. C. 510; s. c. 8 Cent. L. J. Co., 92 N. C. 541. 307. ™ Merryman v. Chicago &c. R. Co., '"' Achtenhagen v. Watertown, 18 85 Iowa 634; s. c. 52 N. W. Rep. 545. Wis. 331. ^°' Twist V. Winona &c. R. Co., 39 i°» Martin v. Cahill, 39 Hun (N. Minn. 164; s. c. 39 N. W. Rep. 402. Y.) 445; following McAIpin v. Pow- ell, 70 N. Y. 126. 294 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. where the train struck him. The boy had done the same thing be- fore, and had been warned. The train hands were not in fault, every effort being made to stop the train. It was held (two judges dissent- ing), that an action against the railroad company could not be main- tained.^^" A boy of sixteen, who has been told to get assistance in re- placing a belt in a machine-shop where he is at work, is guilty of con- tributory negligence if he fails to do so and is injured, and there can be no recovery of damages.^^^ •^° Rudd V. Richmond &c. R. Co., 80 Va. 546. •" Beckham v. Hillier, 47 N. J. L. 12. That a bright boy of nine years, who sits on a curbstone with his legs projecting across a gutter, watching a bonfire, is guilty of negli- gence which will prevent his recov- ery for injuries received from being run over by a cart driven along the street, — see Knebler v. New York, 60 Hun (N. Y.) 584; s. c. 39 N. Y. St. Rep. 520; 15 N. Y. Supp. 187. Under various conditions of facts, too long to catalogue, contributory negligence, as matter of law, has been imputed to a girl thirteen years old: Wallace v. New York &c. R. Co., 165 Mass. 236; s. c. 42 N. B. Rep. 1125. To a girl twelve years old, injured by a train while at- tempting to cross a railroad track: Shirk V. Wabash R. Co., 14 Ind. App. 126; s. c. 42 N. E. Rep. 656. To a bright, intelligent boy thirteen years old, drowned by skating upon a place from which ice had recently been cut, and falling through the newly formed ice: Sickles v. New Jersey Ice Co., 153 N. Y. 83; s. c. 46 N. E. Rep. 1042. To a boy thirteen, injured while standing on a draw- bridge when the draw was being closed: Ward v. New York, 19 App. Div. 48; s. c. 45 N. Y. Supp. 891. To a girl between sixteen and sev- enteen, injured in attempting to cross a railway track immediately in front of a moving train : Chicago &c. R. Co. V. Thorson, 68 111. App. 288. To an intelligent boy, twelve years of age, who, against the warn- ing of his father, voluntarily went into an excavation to get a piece of wire and burned his feet in a fire smouldering therein; Butz v. Cava- naugh, 137 Mo. 503; s. c. 38 S. W. Rep. 1104. To a boy of twelve of good knowledge and ability, injured while attempting to step from a turn-table on a dark night: Carson V. Chicago &c. R. Co., 96 Iowa 583; s. c. 65 N. W. Rep. 831. To a bright negro boy, eleven years old, familiar with a railroad crossing, injured while attempting to cross without looking or listening: Payne v. Chi- cago &c. R. Co., 136 Mo. 562; s. c. 38 S. W. Rep. 308. To a bright, ac- tive boy nine years old, who ties a string around his waist and the other end of the string to a piece of ice on the opposite side of a rail- road track and is injured by being drawn against a passing train when the string is struck by the locomo- tive: Spillane v. Missouri &c. R. Co., 135 Mo. 414; s. c. 37 S. W. Rep. 198. It has been held that children of the following ages, and in the situa- tions named, are, in law, presumed to be sui juris, — that is to say, capa- ble of taking care of themselves, — at least in the absence of evidence to show the contrary, — so that, un- der principles already set out, the law reqviires of them the exercise for their own safety, of a measure of care corresponding to their age, knowledge, experience, discretion, when viewed with reference to the surrounding circumstances: — ■ A bright, healthy, active girl, nine and a half years old, the question being whether she is entitled to unusual attention and to special instructions: McGrell v. Buffalo Office Bldg. Co., 153 N. Y. 265; s. c. 45 Cent. L. J. 133; 47 N. B. Rep. 305. A strong, healthy boy, eight years and seven months old, bright and intelligent for his age: Cleveland &c. R. Co. v. Tartt, 64 Fed. Rep. 830; s. c. 12 C. C. A. 625. A child, five and a half years old, injured by darting from the sidewalk and running against a slowly trotting horse, before he had gone six feet, — a decision worthy only of reprobation: Hayes v. Nor- cross, 162 Mass. 546; s. c. 39 N. E. Rep. 282. The court said in this case: "Upon the undisputed facts, 295 1 Thomp. Neg.] contributory negligence. g 313. Age and Circumstances under which Contributory Negli- gence not Matter of Law, but Question for Jury.^ — If there is any doubt as to the child being of the age and capacity that in law con- stitutes one sui juris, it should be submitted to the jury to say by their verdict whether he is so or not.^^^ Such was held to be the proper course in the case of a child of between six and seven years/^^ ten years/^* eight years/^" nearly seven years/^" seven years and four months/^'' seven years/^* six years/^" five and one-half years/^" five years/^^ less than five years,^^'^ and four years and seven months.^^^ § 314. Continued, with Fuller Explanations of the Circum- stances. — A boy eight years of age was struck by a backing engine and killed. It was held a question for the jury whether he exercised that degree of care and circumspection which a child of his years and ma- turity of judgment would be expected to exercise.^^* A boy seven years of age was run over by a street car. It was held that he could not be held to be sui juris so as to be chargeable with negligence as matter of law, but that it was a question of fact for the jury.^^^ A the conduct of the plaintiff was such as the judgment of common men would universally condemn as care- less in any child of sufficient age and intelligence to be permitted to go alone across a street on which teams are frequently passing." a This section is cited in § 1043. "' Pueblo Electric Street R. Co. v. Sherman, 25 Colo. 114; s. c. 53 Pac. Rep. 322. "' Honegsberger v. Second Avenue R. Co., 1 Keyes (N. Y.) 570; s. c. 33 How. Pr. (N. Y.) 195; 2 Abb. App. Dec. (N. Y.) 378. '"Lovett v. Salem &c. R. Co., 9 Allen (Mass.) 557; Karr v. Parks, 40 Cal. 188; Jones v. Utica &c. R. Co., 36 Hun (N. Y.) 115; Avey v. Gal- veston &c. R. Co. (Tex.), 16 S. W. Rep. 1015. "° Drew V. Sixth Avenue R. Co., 26 N. Y. 49; Ryan v. New York &c. R. Co., 37 Hun (N. Y.) 186; Bennett V. Brooklyn Heights R. Co., 1 App. Div. 205; s. c. 72 N. Y. St. Rep. 719; 37 N. Y. Supp. 447; Lorence v. Ellen- burgh, 13 Wash. 341; s. c. 43 Pac. Rep. 30. "^Oldfield V. Harlem R. Co., 14 N. Y. 310; s. c. 3 E. D. Smith (N. Y.) 103; Mackey v. Vicksburg, 64 Miss. 777; s. c. 2 South. Rep. 178; Elze V. Baumann, 2 Misc. (N. Y.) 72; s. c. 49 N. Y. St. Rep. 629; 21 N. Y. Supp. 782. 296 "'Stone V. Dry Dock &c. R. Co., 115 N. Y. 104; s. c. 46 Hun (N. Y.) 184; 11 N. Y. St. Rep. 537. "» Kitchen V. Brooklyn Heights R. Co., 6 App. Div. 99; s. c. 39 N. Y. Supp. 741. "" Cosgrove v. Ogden, 49 N. Y. 255 ; Galveston &c. R. Co. v. Moore, 59 Tex. 64; s. c. 46 Am. Rep. 265. A child of six tried to pass between two cars of a train which blocked the street, and which, although on the point of starting, had given no warning. It was held that the child had a right of action for an injury caused by the starting of the train, the question of his negligence being for the jury: Philadelphia &c. R. Co. V. Layer, 112 Pa. St. 414. '-° Barksdull v. New Orleans &c. R. Co., 23 La. An. 180. '^'Karr v. Parks, 40 Cal. 188; Huerzeler v. Central &c. R. Co., 1 Misc. (N. Y.) 136; s. c. 48 N. Y. St. Rep. 649; 20 N. Y. Supp. 676. '^^ Ryder v. New York, 50 N. Y. Super. Ct. 220. '^' Lynch v. Smith, 104 Mass. 53; St. Paul V. Kuby, 8 Minn. 154. '"^McGovern v. New York &c. R. Co., 67 N. Y. 417. '== Stone V. Dry Dock R. Co., 115 N. Y. 104. See also Penny v. Roches- ter R. Co., 7 App. Div. 595; 74 N. Y. St. Rep. 732; 40 N. Y. Supp. 172 (boy of seven, "more than ordinarily timid"). INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. boy twelve years old was not deemed guilty of such negligence as to defeat his recovery for injuries alleged to have been caused by the negligence of a railroad company, in starting up a ear while the boy was crawling under it, which used a switch yard in common with the company by which he was employed, unless he failed to exercise that degree of care for his own safety which a person of his age, develop- ment and experience would naturally and ordinarily use in the same situation.^^* Where an eig'/ii-year-old child on her way to school sai down on the sidewalk with her feet in the gutter, to sharpen a pencil, and defendant's team hit her, the question whether she was exercising such care as was reasonably expected of her was for the jury.^^' A child thirteen years old was injured in a city street by the falling of a high fence. It was held that she was not negligent in stopping in front of the fence to look at something across the street, although she would not have been hurt had she not stopped.^^^ A child eleven years old attempted to pass between two teams, one following the other at a short distance on a bridge. The question whether the child was negligent was for the jury.^'* A girl six years old on her way home from school persisted in "skipping" across the street ahead of a carelessly driven vehicle, although warned not to do so. The question of her negligence was for the jury.^^" '^ Omaha &c. R. Co. v. Morgan, 40 Neb. 604; s. c. 59 N. W. Rep. 81. "' O'Shaughnessy v. Suffolk Brew- ing Co., 145 Mass. 569; s. c. 5 N. Eng. Rep. 535; 14 N. E. Rep. 779. '^Hussey v. Ryan, 64 Md. 426; s. c. 54 Am. Rep. 772. '™ Johnson v. Kelleher, 155 Mass. 125; s. c. 29 N. E. Rep. 200. '*> Brown v. Sherer, 155 Mass. 83; S. c. 29 N. E. Rep. 50. That a girl of eleven years, although intelligent, and accustomed to attend school, Sunday-school, and church, is not necessarily guilty of such negligence in playing around a flagstone stand- ing upright against a wall and fence, as will preclude recovery for injury to her from its fall: Schmidt v. CoQk, 4 Misc. (N. Y.) 85; 53 N. Y. St. Rep. 84; 30 Abb. N. Cas. (N. Y.) 285; 23 N. Y. Supp. 799; rev'g 1 Misc. 227; 49 N. Y. St. Rep. 213; 20 N. Y. Supp. 889. That a boy six years old, ordered to keep away from a ditch across which he was with others jumping, allowing stuff to fall down, but who has no knowl- edge, or was not warned, of any danger from gas, is not guilty of contributory negligence by remain- ing there, such as will prevent his recovery for injuries received by an explosion of gas: Rummele v. Allegheny Heating Co. (Pa.), 16 Atl. Rep. 78 (not off. rep.). That a child six years of age can not be declared negligent as matter of law in not avoiding a collision with a locomotive, it being only bound to use the care of which it is capable, considering its age and capacity, — see Tobin v. Missouri &c. R. Co., 18 S. W. Rep. 996 (no off. rep.); Chi- cago &c. R. Co. V. Wilcox, 138 111. 370; s. c. 24 N. E. Rep. 419; 8 L. R. A. 494; 43 Am. & Eng. R. Cas. 299; 27 N. E. Rep. 899. Whether a boy about nine years old run over and killed by a vehicle in the street was guilty of negligence in running across the street behind a street Car, and how his negligence, if any, com- pared with that of the driver, are, in Illinois, questions of fact for the jury: Lind v. Beck, 37 111. App. 430. A boy of fifteen injured from a stone falling from a stone wall of a build- ing that had been burned three weeks before, which building he was passing on the sidewalk, can not be charged with contributory negli- gence in the absence of any warn- ing, not because of his tender years, 297 1 Thomp. Neg.J contributory negligence. § 315. Age at which Infants Charged with the Ordinary Care of Adults. — The rules which govern the question of contributory negli- gence in the case of children of tender or immature years do not, of but because he is charged with no duty to look after the walls: Franke V. St. Louis, 110 Mo. 516; s. c. 19 S. W. Rep. 938. Circumstances un- der which it was not negligence in law for a child seven years of age to jump off a moving train of cars after her mother had fallen off and her father had jumped oft to rescue her mother: Lehman v. Louisiana &c. R. Co., 37 La. An. 705. In the following cases, and under the cir- cumstances brieily named, the courts refuse to impute contributory negli- gence to children as matter of law, but hold that the question was for the jury: — Where a boy, eight and one-half years old, attempted to climb between cars of a freight train which had been standing for fifty minutes over a licensed way, where his father had performed the feat a short time before: Carmer v. Chicago &c. R. Co., 95 Wis. 513; s. c. 70 N. W. Rep. 560. Where a bright boy, eight and one-half years old, was run over by a truck in the street, approaching him from be- hind: Schaffer v. Baker Transfer Co., 29 App. Div. 459; s. c. 51 N. Y. Supp. 1092. Where a boy fourteen years old climbed upon a wagon which was passing along the street and sat at the rear end of it, and the horse drawing it took fright and backed the wagon against the pole of another vehicle, which was fol- lowing it: Gibbons v. Vanderhoogt, 75 111. App. 106; s. c. 3 Chic. L. J. Wkly. 124. Where a boy eight years of age, put his head over a low ele- vator gate in the shaft, to call for the elevator man, and was injured by the fact of the elevator strik- ing his head: Guichard v. New, 84 Hun (N. Y.) 54; s. c. 31 N. Y. Supp. 1080; 65 N. Y. St. Rep. 20. Where a boy, nine years old, was run over by a vehicle at a crosswalk, which turned suddenly across the walk without warning, and was right upon him when his attention was called to it, and he, in a spasmodic effort to save himself, ran directly in front of the horse: Scotti v. Behsmany, 81 Hun (N. Y.) 604; 63 N. Y. St. Rep. 184; 30 N. Y. Supp. 990. This case turns on the doctrine that persons put in sudden peril 298 without their own fault are not ex- pected to observe the care which would be required of them under other circumstances, rather than on the infancy of the boy. Where a boy eleven years old was requested by a man employed on a brig to release the stern hawser, while the brig was being towed out of the harbor, and was struck by a heavy anchor hanging from the bow of the brig, which he did not see,, although he could have seen it by looking behind him: Geibel v. El- well, 19 App. Div. 285; s. c. 46 N. Y. Supp. 76. Where a boy sixteen years old was injured in conse- quence of failing to observe an ap- proaching railway train while he was climbing into the rear end of a wagon, where no signal was given of the approach of the train, and the gates of the crossing were not low- ered: Chicago &c. R. Co. v. Red- mond, 70 111. App. 119; s. c. 2 Chic. L. J. Wkly. 552. This case does not relate especially to the infancy of the boy. Where a boy ten years old was injured while at- tempting to cross a railway track in front of an approaching train, although he was familiar with the crossing and knew that engines and trains frequently passed, and that it was dangerous to cross in front of a moving train, and although he failed to look for approaching trains before making the attempt: Chicago &c. R. Co. V. Kennedy, 2 Kan. App. 693; s. c. 43 Pac. Rep. 802. Where a boy ten and one-half years old, before attempting to cross a railway track, waited until two locomotives had passed, and then looked in both directions but could not see the ap- proach of the train which struck him, by reason of his view being cut off by cars standing upon the side track, — the question of his infancy not being specially discussed: Zwack V. New York &c. R. Co., 8 App. Div. 483; s. c. 40 N. Y. Supp. 821. Where a newsboy, riding at his own risk on the side step of an electric car, with the consent of the company, was knocked off the step by the wagon of the defendant, which was being driven too near the car, — the case not turning specially on the INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. course, apply to minors who have attained years of full discretion/'^ — as, for example, fifteen years. It is said that there is no fixed age when children are bound to exercise the same diligence as grown people, and the question of a child's intelligence is always for the jury.^^^ It has been held that, in the case of an injury to a girl eighteen years of age, it was not error to instruct the jury that "if the plaintiff was wanting in the use of such care as an ordinarily prudent person in like circumstances would use to avoid injury, and that, but for her own want of such care, the injury would not have happened," she could not recover, — the court saying: "The charge was correct as applicable to ordinary persons, and we can see no reason why it should not apply to the plaintiff."^ ^^ Another court has held that a boy sixteen years of age, in the absence of evidence tending to show that he was not qualified to understand and appreciate the situation in which he was placed, and the possible danger arising therefrom, was chargeable with the same degree of care, and with the same knowledge of his environment, as an adult would be under the same circumstances.'^* A boy fourteen years of age or over is presumed to be responsible for his negligence contributing to his injury or death until such presumption is overcome by evidence.''^ A boy between ten and fourteen years old is not, as a matter of law, incapable of ex- ercising such care as may be requisite to avoid injury by a railroad train in motion, whether such train is run negligently or not.'^" question of contributory negligence, 35 S. W. Rep. 412. See also Tucker as applicable to children: Mills v. v. New York &c. R. Co., 33 N. Y. St. Woolverton, 9 App. Div. 82; 41 N. Rep. 863; s. c. 11 N. Y. Supp. 692; Y. Supp. 90. Where a boy ten years s. c. rev'd in 124 N. Y. 308; 36 N. Y. old, employed to sweep out cars St. Rep. 272; 26 N. E. Rep. 916. after they had been unloaded at a "' E. S. Higgins Carpet Co. v. grain elevator, stepped upon a de- O'Keefe, 79 Fed. Rep. 900; s. e. 25 fective cover of a steam exhaust bar- C. C. A. 220; 51 U. S. App. 74. rel in the elevator, which was on a "^ Houston &c. R. Co. v. Simpson, level with the floor, for the purpose 60 Tex. 103. of warming himself, where he had ™ Shelley v. Austin, 74 Tex. 608, not been warned of the danger there- 615; s. c. 12 S. W. Rep. 753. from : Kinchlow v. Midland Elevator '" Koehler v. Syracuse Specialty Co., 57 Kan. 374; s. c. 46 Pac. Rep. Man. Co., 12 App. Div. 50; s. c. 42 703. That it can not be held as mat- N. Y. Supp. 182, 1106. ter of law, that a child eight years ^^ Frauenthal v. Laclede Gaslight of age is too young to be guilty of Co., 67 Mo. App. 1. negligence, but the question is for "' Central R. &c. Co. v. Golden, 93 the jury, — see St. Louis &c. R. Co. Ga. 510; s. c. 21 S. E. Rep. 68. In a v. Christian (Tex. Civ. App.), 27 S. case in Georgia we find the brief W. Rep. 932 (not off. rep.). And so statement that "the measure of dili- in the case of a boy eleven years of gence required of a child under the age: Holtzinger v. Pennsylvania R. age of fourteen is not the same as Co., 6 Pa«Bist. R. 430. Whether a boy that of an adult;" from which twelve years old is unable to appre- statement the court drew this de- ciate the danger of riding upon a duction: "It follows that such a hand car was a question for the child is not bound, as matter of law, jury: Missouri &c. R. Co. v. Rodgers, to anticipate negligence on the part 89 Tex. 675; 36 S. W. Rep. 243; rev'g of others." Georgia &c. R. Co. v. 299 1 Thomp. Neg.] contributory negligence. § 316. Injuries Ascribed to Accident or Misfortune Due to Child- ish Inexperience: No Evidence of Negligence on Part of Defend- ant. — There is a very considerable class of cases of injuries to children of tender years, where negligence is neither imputed to the parent, guardian or custodian, nor to the child, nor to the defendant; but where reason and justice must ascribe it to accident or misfortune due to childish inexperience. Every child runs the gauntlet of a cer- tain number of these inevitable risks, and a certain percentage of children succumb to them. Solicitous as the law is of the welfare of helpless children, it refuses to visit upon innocent persons or cor- porations a responsibility for injuries which are the mere result of that helplessness. A few examples of this will be given. A boy, four years old, under circumstances involving no negligence on the part of his parents, jumped onto a swing bridge in a city, when the same was in motion, and fell and sustained serious injuries. The bridge was constructed as bridges commonly are, and was reasonably safe for persons using ordinary care. It had neither barrier nor watchman. The father of the child, a day laborer, was absent from home at his daily labor, and the mother was at home sick. It was held that the city was not liable. The court, speaking through Scott, J., said: "No duty rests on the city to make such bridges safe for children to play around or upon, nor does it expect parents will allow their children to occupy such dangerous places as playgrounds, and if they wander from their homes without the knowledge of their parents, and sustain injury at such places, it must be attributed to mere accident that no care which they are obliged to observe, on the part of the municipal authorities, could prevent."^^^ Evans, 87 Ga. 673 ; s. c. 13 S. E. Rep. s. c. 37 Am. Rep. 99. That there can 580, citing Western &c. R. Co. v. be no recovery where a child two Young, 83 Ga. 512 ; Rhodes v. years old is left by its mother in the Georgia R. Co., 84 Ga. 320. The law care of its uncle, and is negligently of New York does not exact from a allowed to get upon the track of a girl fifteen years of age the same railroad company in Chicago, and degree of care and prudence In the is struck by a passenger train com- presence of danger as is exacted ing into the city at a rate not ex- from adults: Swift v. Staten Island ceeding eight miles an hour, no care- fee. R. Co., 123 N. Y. 645 ; s. c. 45 lessness nor negligence on the part of Am. & Eng. R. Cas. 180; 33 N. Y. St. the railway employes being shown, — Rep. 604; 25 N. E. Rep. 378. That see Chicago fee. R. Co. v. Schumil- the presumption that a child under owsky, 8 111. App. 613. No recov- fourteen is incapable of contribu- ery where a child of tender years is tory negligence, and that a child of hurt by running under a mule which that age is capable, is not conolu- is being driven at an ordinary trot sive, and may be overthrown by without negligence of the driver: proof as to the actual capacity of Montfort v. Schmidt, 36 L^ An. 750. the child, — see Phillips v. Duquesne Nor where a boy, six years old, at Traction Co., 8 Pa. Super. Ct. 210 ; the invitation of other boys who are s. c. 42 W. N. C. 528; 29 Pitts. L. J. riding upon a coal train with per- (N. S.) 60. mission of the brakeman, attempts "'Gavin v. Chicago, 97 111. 66, 71; to jump on the train while in mo- 300 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. § 317. Prima Facie Evidence of Negligence and Absence of Con- tributory Negligence in Cases of Injuries to Children, Continued. — Prima facie evidence of negligence in cases of injuries to children, and a corresponding want of contributory negligence on the part of the child, fit to be submitted to a jury, have been discovered in the following facts : In the act of a railway conductor in expelling from his train, miles from his home, a child so young as to be incapable of taking care of itself, without requesting any one to look after its safety; and in the act of those in charge of a freight train in negli- gently failing to stop the train when within their power to do so be- fore running upon the child ;^^^ in the failure of a negro boy eleven years old, who lived about a quarter of a mile from a railroad cross- ing, and had frequently been over it, to see an approaching train on looking when within four or five feet of the crossing, although a per- son of mature years and understanding would have seen and heard it;"^ in the attempt made by a girl sixteen years old to cross over a platform and step on a caboose car which had stood across the public street more than an hour, after using care to discover whether there was danger of its removal and finding none, although her view of the track was unobstructed and although the caboose was struck by a backing train and she was thrown under the wheels;^*" in the failure of a railroad company to give warning of the approach of its train through the streets of a town, and the act of a boy eight years old in running against the third or fourth car from the engine at a place twenty feet from the crossing, while absorbed by a duty in which he was engaged ;^*^ in the act of a person in allowing a boy of thirteen to get upon a horse with a switch in his hand, where the boy was hurt by starting the horse by striking him with the switch, although the accident might have happened if he had not struck the horse ;^*^ in the act of a boy ten years old in stepping upon the rail of a street car track in attempting to cross the street in front of his home, so soon after it had been welded that it was still hot, where the rail had so far cooled that it was black, and the place at which the weld was made was not guarded in any manner ;^^^ in the act of a bright, intelligent boy eleven years old, in venturing for the purpose of fishing and play tion, not being seen by the brake- '"Weber v. Atchison &c. R. Co., man, and is injured in the attempt: 54 Kan. 389; s. c. 38 Pac. Rep. 569. Woodbridge v. Delaware &c. R. Co., •" Bast Tennessee Coal Co. v. Har- 105 Pa. St. 460. shaw, 16 Ky. L. Rep. 526; s. c. 29 '™ Indianapolis &c. R. Co. v. Pitzer. S. W. Rep. 289 (no off. rep.). 109 Ind. 79; s. e. 4 West. Rep. 250. "^ Pilon v. Shedden Co., 9 Quebec '™ Payne v. Chicago &c. R. Co., 129 Rap. Jud. 83. Mo. 405; s. c. 31 b. W. Rep. 885; '" Kane v. West End Street R. Co., aff'g on rehearing 30 S. W. Rep. 148. 169 Mass. 64; s. c. 47 N. E. Rep. 501. 301 1 Thomp. Neg.] contkibutoky negligence. into a deep and dangerous reservoir, in which he was drowned;*** in the act of a boy thirteen years old, who, having previously looked in both directions, attempted to cross a street at a crossing, but waa driven over by a team coming at a rapid gait;^*" in the act of a boy four years old in charge of a boy of thirteen, in getting on the track of a street railway while the attention of the elder boy was diverted from an approaching car.^*" A city was held liable for allowing the counter of a bar or saloon to lie on its sidewalk for several days, seen constantly by its police, in which position a boy six years old meddled with it, when it overturned, injuring him.^*^ § 318. Examples of Injuries to Children Where the Defendant was Exonerated. — In the following cases it was held that there could be no recovery of damages for injuries to children either on the ground of a want of negligence on the part of the defendant, or of contribu- tory negligence on the part of the child, or its parent or custodian: Where a boy seven years of age, in crossing a bridge, went upon the roadway instead of the footway, and there walked upon a gas pipe placed above the floor, and fell from it into an opening into which no one could get in the ordinary course of travel, and was killed, — his fr.ther, with full knowledge of the condition of the bridge, having given him opportunity to cross it, and being the plaintiff in the ac- tion;^*' where there was no evidence to show that the defendant owned, occupied or had the care of a vacant lot or had any right, or owed any duty, to place the fence along the brow of the precipice over which the plaintiff, a child of tender years, fell while playing in the lot, — together with other circumstances not necessary to be stated;^** where a girl six or seven years old, and her sister twelve or thirteen, were going to school across a railway track, by a path which had long been used, and a switchman who had on various occasions warned and prevented persons from walking on the path while cars were passing, was absent from his place and one of the children was killed and the other injured by being run over by cars which were making a "flying switch," and were running at from eight to ten miles an hour, the brakeman in charge of which cars could not see the children, though they could see the cars, and saw an express train on the track, etc. ;^°° where a boy less than nine years old walked upon a railway track in a •" Price V. Atchison Water Co., 58 also Birge v. Gardiner, 19 Conn. 507. Kan. 551; s. c. 50 Pac. Rep. 450. "'Oil City &c. Co. v. Jackson, 114 ^« Streitfeld v. Shoemaker, 185 Pa. Pa. St. 321 ; s. c. 5 Cent. Rep. 324. 265 ; s. c. 39 Atl. 967 ; 42 W. N. C. 62. "= Galligan v. Metacomet Man. Co., i^oDahl v. Milwaukee &c. R. Co., 143 Mass. 527; s. c. 3 N. E. Rep. 705. 65 Wis. 371. ""Wright v. Boston &c. R. Co., 142 "'Kunz v. Troy, 104 N. Y. 345; Mass. 296; s. c. 2 N. E. Rep. 725. rev'g s. c. 36 Hun (N. Y.) 615. See 302 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. dangerous position, and failed to use his faculties to discover whether a train was approaching, the conclusion being that there could be no recovery unless the injury to him was willfully or wantonly in- flicted;^'*^ where a boy sixteen years old, familiar with the conduct of railway business, stood upon a railway track twenty feet in front of a locomotive with his back toward it, knowing that it might start out any moment, and it did start, running upon him;^^^ where a bright and intelligent boy between nine and ten years old, having been fre- quently cautioned that there was danger in going under railway cars, sat down under a ear in a railway yard knowing the danger of the position, and conscious that he was a trespasser, and was killed by a switch engine being run against the car;^^^ where a boy, five or six years old, went for his own amusement, upon the platform of a rail- way station, and stood at the edge of it, to watch an approaching train, and the train drew up at the rate of three or four miles an hour, and an iron step, bent and projecting a few inches outward beyond the outer line of the car struck and injured him;^^* where two street ears were being drawn by a single horse, in charge of a driver who stood on the front platform of the car in advance, from the stables to the repair shops, when a lad six years old, in playing, jumped upon the rear plat- form of the rear car and fell off, sustaining an injury, and the driver knew nothing of it, — ^the conclusion being that there was no negli- gence on the part of the railroad company.^ ^° Abticle III. Care and Negligence of Parents and Custodians. Section Section 321. Degree of care to be exercised 328. Still further illustrations. by parents or guardians. 329. Whether poverty of parent con- 322. Age of custodian with whom sidered. child may be sent out. 330. Effect of contributory negli- 323. Facts imputing negligence to gence of parents upon par- custodians as matter of law. ents' right of action for death 324. Not negligence per se to permit or injury of child. child to escape or go unat- 331. Further of this subject, tended upon the street. 332. Illustrations of negligence of 325. Cases in which it was so held. parents barring their right 326. Other such cases. of action. 327. Further illustrations of this 333. "When parent chargeable with doctrine. negligence of custodian. ""Cleveland &c. R. Co. v. Tartt, ">' Atchison &c. R. Co. v. Todd, 54 64 Fed. Rep. 830; s. c. 12 C. C. A. Kan. 551; s. c. 38 Pac. Rep. 804. 625. '" Baltimore &c. R. Co. v. Schwind- ""Lofdahl v. Minneapolis &c. R. ling, 101 Pa. St. 258; s. c. 47 Am. Co., 88 Wis. 421; s. c. 60 N. W. Rep. Rep. 706. 795. ^^ Bishop v. Union R. Co., 14 R. I. 303 1 Thomp. Neg.j contributory negligence. § 321. Degree of Care to be Exercised by Parents or Guardians.* — Where the doctrine of imputed negligence prevails, or where the par- ent is suing in his own right for an injury to his child, then the ques- tion of the measure of care which the parent, guardian, or custodian of the child is bound to exercise for its protection, becomes important. The rule is that parents, guardians, or custodians of children are bound to exercise such degree of care and prudence to promote their safety as is reasonable under the circumstances ;^°° and this, in gen- eral, is a degree of care proportionate to the known dangers, or to the dangers that might be known by the exercise of ordinary diligence. ^°'' As this will necessarily vary with different ages and situations, it will generally be a question of fact for the jury."' Much depends upon the character of the place where the child is permitted to be, — ^whether a busy or an unfrequented street, or whether other circumstances of danger are ordinarily present.^ ^' When the age of the child is such that he is close upon the dividing line between that class of children whom the court will pronounce non sui juris and that which is rele- gated to the decision of the Jury, and the question relates to the negli- gence of his parents in suffering him to go at large unattended, it is not surprising to find testimony that the child is one of more than or- dinary intelligence and activity,^^" or possessed of discretion in ad- vance of his years and size.^*^ 314; s. c. 51 Am. Rep. 386. And see where a boy was hurt while trying to ride upon a steam railway car by hanging from the side of it, in the yard of the company: St. Louis &c. R. Co. v. Daley, 53 111. App. 614. And so where a boy fifteen years old was hurt while attempt- ing to board a moving train: Con- naughton v. Brooklyn &c. R. Co., 13 Misc. (N. Y.) 401; s. c. 34 N. Y. Supp. 243; 68 N. Y. St. Rep. 122. And where a boy thirteen years old, who had been working in a mill for a month, was injured while ascend- ing in an elevator in which he was accustomed to ride, by the back part of his head extending beyond the elevator platform, and coming into contact with a joist: Ludwig v. Pillsbury, 35 Minn. 256. a This section is cited In § 298. "" Slattery v. Connell, 153 Mass. 94; s. c. 26 N. E. Rep. 430; 10 L. R. A. 653; Aurora v. Seidelman, 34 111. App. 285; Weil v. Dry Dock &c. R. Co., 119 N. Y. 147; s. c. 28 N. Y. St. Rep. 944; 23 N. B. Rep. 487; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504; Kunz v. Troy, 104 N. Y. 344; s. c. 6 Cent. Rep. 493. ^" Louisville &c. R. Co. v. Shanks, 132 Ind. 395; s. c. 31 N. B. Rep. 1111. '■>» Slattery v. O'Connell, 153 Mass. 94; s. c. 26 N. B. Rep. 430; 10 L. R. A. 653; Payne v. Humeston &c. R. Co., 70 Iowa 584; Kunfi v. Troy, 104 N. Y. 344; s. c. 6 Cent. Rep. 493; Birkett v. Knickerbocker Ice Co., 110 N. Y. 506. ™Karr v. Parks, 40 Cal. 188; Chi- cago &c. R. Co. V. Starr's Adminis- trator, 42 111. 174; Pittsburgh &c. R. Co. V. Vining's Administrator, 27 Ind. 513. >°°01dneld V. Harlem R. Co., 14 N. Y. 310; BarksduU v. New Orleans &c. R. Co., 23 La. An. 180. ""Lynch v. Smith, 104 Mass. 53.' In Downs v. New York &c. R. Co. (47 N. Y. 83), the plaintifC, an in- fant twelve years of age, travelling with his mother upon the defend- ant's cars, being unable to find a seat in the car with her, by her per- mission went into another, and there remained until the train reached a station. In attempting to 304 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. § 322. Age of Custodian with Whom Child may be Sent Out. — Courts have refused to declare it negligence, as a matter of law, to send out a child two years and eight months old under the care of an- other eight years of age;^"^ or to permit a child of three to go upon a C'ty street attended only by a child of seven ;^*^ one three and one- half years old in company with another nine years of age,^^* or seven and a half years of age;^°^ one a little over three years, in company with another between nine and ten;^^^ one four years and five months old in company with another twelve years and six months ;^^' and one six years of age in company with another of ten.^°* It has been held that the parents of a child two years old, who lived near a railroad track, without any fence intervening between the track and their house, are not, as matter of law, guilty of negligence in leaving the child in charge of a girl ten years old while they are absent from the house, which will preclude them from recovering for the death of the child by its being killed on the railway track to which it wanders in the momentary absence of the custodian.^"* It has been held that the mother of a child, four years and ten months old, is not guilty of negli- gence in entrusting the child while on a side street to a brother fifteen years old, but that the question is for the jury.^^^ The consent of a mother of a child, four years and six months old, to the child riding in a delivery wagon drawn by a gentle horse ia charge of two boys, aged respectively twenty-two and fifteen, is not contributory negligence, precluding a recovery by the child for injuries received in a collision between the wagon and an electric car, in a jurisdiction where the doc- trine of imputed negligence prevails.^ ^^ § 323. Facts Imputing Negligence to Custodians as Matter of law. — An adult, having the care of a girl eight years old, left a horse car with her and went immediately upon an adjacent horse car track, without having hold of the child, and without giving attention to pos- sible danger, except in one direction. The child was run over by a leave the car to return to his ™ Ihl v. Forty-second Street R. mother, he received an injury. The Co., 47 N. Y. 317. court held that it was not negli- '" East Saginaw City R. Co. v. gence per se for the mother to per- Bohn, 27 Mich. 503. mit him to go from one car to an- "" Chicago &c. R. Co. v. Becker, 76 other under the circumstances. 111. 25; s. c. 84 111. 483. '"' O'Flaherty v. Union R. Co., 45 "■" Lindsay v. Canadian &c. R. Co., Mo. 70. 68 Vt. 556; s. c. 35 Atl. Rep. 513. '" Stafford v. Rubens, 115 111. 196. '" Ehrman v. Nassau Electric R. '"Mulligan v. Curtis, 100 Mass. Co., 23 App. Div. 21; s. c. 48 N. Y. 512. Supp. 379. ""Stafford v. Rubens, 115 111. 196; '" Metcalf v. Rochester R. Co., s. c. 1 West Rep. 640. 12 App. Div. 147; s. c. 42 N. Y. Supp. 661. That it is not VOL. 1 TIIOMP. NEG. — 20 305 1 Thomp. Neg.J contributory negligence. car coming from the other direction. It was held that the guardian was chargeable with contributory negligence.^'' It has been held to be negligence for parents living near a railroad to go away from the house and leave there a very young child, with no other attendant than another child a little older than itself. And if the child crawls on to the track and is killed, the company is not liable, unless those in charge of the train, after discovering the child, have omitted the use of reasonable precaution to avoid the injury.^'* So, where the mother, and not the child, was suing, and it appeared that she, in vio- lation of the regulations of a railroad, of which she had notice, put her child upon a freight train, it was held that she could not recover for injuries occasioned by the negligence of the railroad employes who took the child in known violation of such rules.^'*" § 324. Not Negligence Per Se to Permit Child to Escape or Go Un- attended upon the Street.* — Small children have a right to light, air and exercise, and the children of the poor can not be constantly watched by their parents. From these considerations it follows that the mere fact that a child of tender years has been injured while at large and unattended on a public street or highway, does not neces- sarily impute contributory negligence to its parents or guardian as matter of law, but is at most only prima facie evidence of negligence on their part, subject to explanation. ^^^ The question whether they have been negligent in allowing the child to be at large is generally a qvestion for the jury in view of the circumstances attending the par- ticular case.'^'" Even in the case of a very young child — -in one case only two years of age — if, notwithstanding the exercise of reasonable negligence per se for a mother to v. Smith, 152 Mass. 294; s. c. 9 L. R. permit her child four years old to A. 259, which maintains the opposite play upon the street when accom- view. panied by its sister twelve years '" Reed v. Minneapolis St. R. Co., old: Jones v. Brooklyn Heights R. 34 Minn. 557. Co., 10 Misc. (N. Y.) 543; 31 N. Y. "* St. Louis &c. R. Co. v. Freeman, Supp. 445; 64 N. Y. St. Rep. 22. 36 Ark. 41. That it was not negligence, as mat- "'Whitehead v. St. Louis &c. R. ter of law, for a parent to permit a Co., 22 Mo. App. 60; s. c. 5 West. child three years old to go upon Rep. 84. the street attended by a boy ten a This section is cited in §§ 294, years old: Ehrman v. Brooklyn City 324, 329, 331, 344. R. Co., 38 N. Y. St. Rep. 990. That "" St. Louis &c. R. Co. v. Freeman, it was not negligence, as matter 36 Ark. 41. of law, for a mother to allow a child "' Huerzeler v. Central &c. R. Co., four years old to play on the side- 1 Misc. 136; s. c. 48 N. Y. St. Rep. walk of a summer afternoon, in com- 649; 20 N. Y. Supp. 676; Kunz v. pany with a brother six years old: Troy, 104 N. Y. 344; Birkett v. Blrkett v. Knickerbocker Ice Co., 41 Knickerbocker Ice Co., 110 N. Y. Hun (N. Y.) 404. See also Casey 504; Parish v. Eden, 62 Wis. 272; 306 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. care on their part, having regard to the situation, the child escapes upon the public street, and is therein injured through the negligence of another, that other must pay for the damages.^'* § 325. Cases in which it was so Held. — It was so held with refer- ence to a boy fourteen years of age who, though afflicted with occa- sional epileptic fits, was ordinarily able to take care of himself;^'* with reference to a boy of eleven, allowed by his parents to go to a free school on the same street as their residence, although he had to cross a railroad on his way;^*" with regard to a boy eleven years old, sent out alone and unattended on a national holiday on the principal thorough- fare of a great city where the mother knew that the street cars were running at all times of the day, she being the plaintiff in the case;^^^ with regard to a child six years old, allowed to play unattended in the door yard of his parents fronting on the public street, from which he escaped to the street in disobedience of their commands /^^ with re- gard to a child less than six years old, in allowing him to go without attendance upon an unfenced lot on which a railway turn-table is situ- ated ;^^^ with regard to a child five and a half years old, in permitting it to go on the sidewalk of a street near the residence of its parents;^®* Ehrman v. Nassau Electric R. Co., 23 App. Div. 21; s. c. 48 N. Y. Supp. 379; Louisville &c. R. Co. v. Sears, 11 Ind. App. 654; s. c. 38 N. E. Rep. 837; Jones v. Brooklyn Heights R. Co., 10 Misc. 543; s. c. 31 N. Y. Supp. 445; 64 N. Y. St. Rep. 22; Lederman V. Pennsylvania R. Co., 165 Pa. St. 118; s. c. 35 W. N. C. 502; 12 Lane. L. Rev. 65; 44 Am. St. Rep. 644; 30 Atl. Rep. 725; Skelton v. Larkin, 82 Hun (N. Y.) 388; s. c. 63 N. Y. St. Rep. 553; 31 N. Y. Supp. 234; Riley v. Salt Lake Rapid Transit Co., 10 Utah 428; s. c. 37 Pac. Rep. 681; Hedin v. City &c. R. Co., 26 Or. 155; s. c. 37 Pac. Rep. 540; Berry v. Lake Erie &c. R. Co., 70 Fed. Rep. 679; Chicago &c. R. Co. v. Logue, 158 111. 621; s. c. 42 N. E. Rep. 53; aff'g 58 111. App. 142; Atchison &c. R. Co. V. McParland, 2 Kan. App. 662; s. c. 43 Pac. Rep. 788; Woeck- ner v. Erie Electric Motor Co., 182 Pa. St. 182; s. c. 37 Atl. Rep. 936; Karahuta v. Schuylkill Traction Co., 6 Pa. Super. Ct. 319; s. c. 42 W. N. C. 47; McKfenna v. Buffalo Brass Bed- stead Co., 12 Misc. 485; s. c. 67 N. Y. St. Rep. 385; 33 N. Y. Supp. 684; Finkelstein v. Crave, 51 N. Y. St. Rep. 613; s. c. 22 N. Y. Supp. 399; Weitzmann v. Nassau Electric R. Co., 53 N. Y. Supp. 905; s. c. 33 App. Div. 585; Schaffer v. Baker Transfer Co., 29 App. Div. 459; s. c. 51 N. Y. Supp. 1092; Muller v. Brooklyn R. Co., 18 App. Div. 177; s. c. 45 N. Y. Supp. 954. The fact that children were at play on the streets, will not relieve the city from liability for death caused by its neglect to repair streets : Chi- cago V. Keefe, 114 111. 222; s. c. 1 West. Rep. 354. "" Farris v. Cass Avenue &c. R. Co., 80 Mo. 325. "» Piatt &c. Co. V. Dowell, 17 Colo. 376; s. c. 30 Pac. Rep. 68. ^""Cleveland &c. R. Co. v. Keely, 138 Ind. 600; s. c. 37 N. E. Rep. 406. '" Lynch v. Metropolitan Street R. Co., 112 Mo. 420; s. c. 20 S. W. Rep. 642. '»= Strutzel v. St. Paul City R. Co., 47 Minn. 543; s. c. 11 Rail. & Corp. L. J. 132; 50 N. W. Rep. 690. '^= Walsh V. Fitchburg R. Co., 67 Hun (N. Y.) 604; 51 N. Y. St. Rep. 240; s. c. 22 N. Y. Supp. 441. ^^ Westerfield v. Levis, 43 La. An. 63; s. c. 9 South. Rep. 52. 307 1 Thomp. Neg.J contributory negligence. with regard to a child five and a half years old, permitted to play on a street sidewalk unattended except by a child six years old;^*° with regard to a boy of four, permitted to go upon the public streets of a city attended only by a sister of eleven,^^^ or even unattended;^*' with regard to a child three and a half years old, allowed to go upon the sidewalk of a city street with an older boy;^'* nor with regard to a child a year and a half old, allowed by its parents to be taken into the street in care of a brother fifteen years old.^*® In another case a child four years old left its parents' house unattended, without their knowl- edge or consent. His father was absent engaged in manual labor, and his mother was confined to her room by sickness. While thus ab- sent he received a personal injury. It appeared that, as soon as the mother discovered its absence, she made search for it. It also ap- peared that the family were dependent upon their daily labor for sup- port. It was held that a verdict exonerating the parents of the child from negligence ought not to be disturbed.^'" § 326. Other Such Cases. — So, a mother is not chargeable as mat- ter of law with contributory negligence in leaving her child four years old, which was eating its supper on the front door step, for a moment, while she stepped inside to get it something more to eat, when it escaped to a street railway track twenty-five feet distant, and was run over by a car.^°^ The fact that a parent living upon a quiet street, where few vehicles passed, permitted a child six years old to go unattended upon the streets, did not constitute negligence per se, but it was a ques- tion for the jury.^®^ In another case^"^ the court refused to declare, as matter of law, that it was negligence in a parent to send a boy eight years of age to school without a protector. Similarly it is held in Massachusetts^** that it may be submitted to a jury whether a child four years and seven months old might not be permitted to go to school alone, or a boy three and a half years old be trusted to go across the »==Birkett v. Knickerbocker Ice ^^ Chicago &c. R. Co. v. Ryan, 31 Co., 110 N. Y. 504; 18 N. Y. St. Rep. 111. App. 621. 130; 18 N. E. Rep. 108; 13 Cent. '=° Gavin v. Chicago, 97 111. 66; s. c. Rep. 421; aff'g s. c. 41 Hun (N. Y.) 37 Am. Rep. 99. 404. ™Rosenkranz v. Lindell R. Co., '«» Collins V. South Boston R. Co., 108 Mo. 9 ; s. c. 18 S. W. Rep. 890. 142 Mass. 301; s. c. 57 Am. Rep. 675; ^'"'Cosgrove v. Ogden, 49 N. Y. 255. 2 N. E. Rep. 649. See also Oldfield v. Harlem R. Co., ^^ Stafford v. Rubens, 115 111. 196; 14 N. Y. 310; s. c. 3 E. D. Smith (N. s. c. 1 West. Rep. 641. Y.) 103; Schierhold v. North Beach i=»Ehrman v. Brooklyn City R. Co., &c. R. Co., 40 Cal. 447. , 60 Hun (N. Y.) 580; s. c. 38 N. Y. St. ™ Drew v. Sixth Avenue R. Co,, Rep. 990; 14 N. Y. Supp. 336. 26 N. Y. 49. "" Lynch v. Smith, 104 Mass. 53. 308 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. street, accompanied by his brother nine years old.^®' So, a parent, having no knowledge of the presence or probability of danger, is not guilty of negligence, as matter of law, in permitting a child of five years of age to pass beyond the door yard into the street without an attendant.^°° The mother of a child four and a half years old is not, as matter of law, guilty of contributory negligence in permitting it to be out of her sight fifteen or twenty minutes while she was engaged in work, during which time the child wandered to the street about one hundred feet away, where it was killed on a street-railway track.^*^ § 327. Further Illustrations of this Doctrine. — The question for the jury will generally be whether the means employed by the parent or custodian for restraining the child were reasonably sufficient.^®^ Thus, in Mangam v. Brooklyn Railroad Company,'^^^ a leading case upon this point, the evidence was that the plaintiff, a child three or four years old, was locked in the house, but lost sight of by the person having him in charge, for about twenty minutes; that his only means of access to the street was by climbing out of an open window, which only came within four feet of the floor. There was no evidence that he had ever before got out of thie window, or attempted to. The court held that the failure to guard this aperture did not warrant the conclusion, as matter of law, that the parent was guilty of negligence. In Fallon v. Central Park Railroad Company,^"" although it was shown that a slight barricade before a door would have prevented the child's escape into the street, yet this was deemed an extraordinary measure, and such as would not ordinarily be necessary to keep the child within bounds, the omission of which would not constitute negli- gence as a matter of law. So, that a boy six years old was upon a rail- road track near a street crossing does not establish the fact of eontrib- "" Mulligan v. Curtis, 100 Mass. parents are bound to take to prevent 512. See also Ihl v. Forty-second the escape of their children from Street R. Co., 47 N. Y. 317. their immediate supervision is '" Indianapolis v. Emmelman, 108 sometimes made to depend upon the Ind. 530; s. c. 6 West. Rep. 566. condition and resources of the '" Fox v. Oakland Consol. Street R. parents. Kay v. Pennsylvania R. Co., 118 Cal. 55; s. c. 50 Pac. Rep. Co., 65 Pa. St. 269. But see this 25; 9 Am. & Eng. R. Cas. (N. S.) view criticised by Dillon, J., in Ha- 825; citing Birkett v. Knickerbocker gan's Petition, 5 Dill. U. S. 96; s. c. Ice Co., 110 N. Y. 504. 7 Cent. L. J. 311, 313. The mere •"'Mangam v. Brooklyn R. Co., 38 fact that a child four years of age N. Y. 455; Fallon v. Central Park strayed a distance of more than two &c. R. Co., 64 N. Y. 13; Prendegast blocks from home, at play with r. New York &c. R. Co., 58 N. Y. 652; other children, is not of itself evi- Bahrenburgh v. Brooklyn City R. dence of contributory negligence on Co., 56 N. Y. 652; Pittsburgh &c. R. the part of its parents. Hagan's Co. V. Bumstead, 48 111. 221; Pitts- Petition, supra. burgh &c. R. Co. v. Pearson, 72 Pa. "» 38 N. Y. 455. St. 169. The degree of care which ="'64 N. Y. 13. 309 1 Thomp. Neg.] contkibutoey negligence, utory negligence as matter of law, altjiough it is shown that the boy's father saw him going towards the track a short time before he was struck by the train.^"^ So, evidence to the effect that the father of a boy four or five years old left him at home with his mother, who saw him a few minutes before he was hurt by the kicking of a horse left unattended or unharnessed, and did not let him go out; that while she was nursing a baby he walked into another room ; and that, after he had been absent from her a minute or two, she ran -to the door and saw him returning covered with blood, — does not show contrib- utory negligence on the part of the child's parents as matter of law, but takes the question to the jury, who, if they find that he was in the highway without fault, may also find that he was not guilty of con- tributory negligence.^"^ § 328. Still Further Illustrations. — In another ease a child sixteen months old got upon a track and was killed by a train. The child had been left by its .mother with a brother seven years old for a few minutes. The mother knew that once before the child got upon the track. It was held that contributory negligence was not so conclu- sively shown as to justify a refusal to submit the evidence to the jury.^"^ So, it has been held that the parents of a child of seventeen months are not, as matter of law, guilty of negligence in leaving it un- attended in a room of their own house, from which it makes its escape upon a street-car track through an open front door.^°* So, a mother who allows her three year old child to play about an open gateway through which it wanders into the street, where it falls into an uncov- ered hole dug that morning, and of which she is ignorant, can not, as a matter of law, be said to be guilty of such contributory negligence as will defeat a recovery. ^"° Contrary to the foregoing holdings, though '" Johnson v. Chicago &c. R. Co., which the child fell and was killed, 56 Wis. 274. . it was held that contributory negli- 2»2 Marsland v. Murray, 148 Mass. gence was a question lor the jury: 91; s. c. 18 N. E. Rep. 680. Fink v. Missouri Furnace Co., 10 Mo. "^ Hoppe V. Chicago &c. R. Co., 61 App. 61 ; s. c. reversed on other Wis. 357. grounds in 82 Mo. 276. That the ^»* Weissner v. St. Paul City R. Co., mother of an infant child who is 47 Minn. 468; s. c. 50 N. W. Rep. about to cross eleven railroad tracks 606. So, it is not negligence per se, is not, as a matter of law, guilty of for a child nineteen months old to be contributory negligence in losing for upon the street, although while the a moment her hold upon the child, — mother's attention is temporarily see Wiley v. Long Island R. Co., 76 called away the child runs upon a Hun (N. Y.) 29; s. c. 59 N. Y. St. street car track and is injured: Rep. 157; 27 N. Y. Supp. 722. Negli- Reinike v. Philadelphia Traction gence was ascribed to the parents of Co., 31 W. N. C. (Pa.) 471. a young child under the circum- ^' Creed v. Kendal, 156 Mass. 291 ; stances described In Dudley v. West- s. c. 31 N. E. Rep. 6. Where a cott, 44 N. Y. St. Rep. 882; 18 N. Y. mother allowed a little child to Supp. 130; rev'g 40 N. Y. St. Rep. play near an unfenced sand-pit, into 506; 15 N. Y. Supp. 952. 310 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. possibly reconcilable with them, is the holding of the New York Court of Appeals that evidence of the presence of an infant seventeen months old, unattended, upon a railroad track is, unexplained, proof of care- lessness on the parent's part.^"* Under the severe doctrine of im- puted negligence which still obtains in Massachusetts, for a mother to permit her child three years old to go upon a public street crowded with vehicles to await the coming home of its father, who is not ex- pected for at least fifty minutes, accompanied only by its brother be- tween seven and eight years old, and its sister about five years old, is such negligence as will preclude a recovery of damages by the child in case it is run over and injured by a third person, — the circum- stances being such that an adult in its place would have escaped un- hurt."' § 329. Whether Poverty of Parent Considered.^ — In actions by the parent, as well as in those by the child, the necessities of the parent's condition, and his poverty of means for safely restraining his child, are in some States held to be proper matters for consideration upon the question of his contributory negligence.^"* Other courts have, however, reasoned that the means, or lack of means, of parents to em- ploy servants to look after their young children, has no bearing on the question whether or not, in any given case, they have given their chil- dren that degree of care required at their hands to prevent them from wandering upon the street, and getting in front of ^street car.^°° An- *» Chrystal v. Troy &c. R. Co., 105 N. E. 345. See also Henne v. Peo- N. Y. 164; s. c. 7 Cent. Rep. 245; 11 pie's Street R. Co., 1 Super. Ct. N. E. Rep. 380.' (Pa.) 311; s. c. 38 W. N. C. 275. *" Casey v. Smith, 152 Mass. 294; a This section is cited in §§ 348, s. c. 9 L. R. A. 259; 25 N. E. Rep. 493. 734. That a parent is guilty of neg- ^"'Walters v. Chicago &c. R. Co., ligence per se in allowing a child 41 Iowa 71; Pittsburgh &c. R. Co. v. four years of age to wander away Pearson, 72 Pa. St. 169; Phila. &c. upon a railroad which is in full oper- R. Co. v. Long, 75 Pa. St. 257; Hedin ation near the parent's residence, — v. City &c. R. Co., 26 Ore. 155; s. c. 37 see the untenable case of Foley v. Pac. Rep. 540; San Antonio &c. R. New York &c. R. Co., 78 Hun (N. Y.) Co. v. Vaughn, 5 Tex. Civ. App. 195; 248; 60 N. Y. St. Rep. 6; 28 N. Y. s. c. 23 S. W. Rep. 745 (action by Supp. 816. The negligence of the parent). mother in permitting the child to ^Fox v. Oakland &c. Street R. be at large on the street unattended Co., 118 Cal. 55; s. c. 50 Pac. Rep. 25; was a question for the jury in the 9 Am. & Eng. Rail. Cas. (N. S.) 25; following cases: Child seven years Mayhew v. Burns, 103 Ind. 339; In- and four months old unattended on dianapolis &c. R. Co. v. Pitzer, 109 the street, for about half an hour, Ind. 179; Hagan's Petition, 5 Dill, but cautioned to stay in front of the (U. S.) 96. In one case the reason- house: Hyland v. Burns, 10 App. ing of an eminent judge was this: Div. 386; 41 N. Y. Supp. 873. Young "Some of the cases seem to make the child left in front door yard, but got liability depend upon the means of out somehow through front gate, the parents, and to countenance a though fastened: Powers v. Quincy distinction as to contributory negli- ft B. Street R. Co., 163 Mass. 5; 39 gence between parents able to em- 311 1 Thomp. Neg.] contributory negligence. other ease also holds that the right of a child to go upon the street is in no way dependent upon the occupation or pecuniary condition of its parents.-" The same court has made the rule extend to the defendant as well as to the plaintiff, in the following language : "If defendant committed a nuisance by wrongfully causing a pitfall on plaintiff's premises, she could not escape liability by showing that she was poor and plaintiff rich. It would have availed her nothing to show that the plaintiff might have employed more servants to attend to his house, or nurses for his child."^" And, by analogy to this, the rule may be referred to which makes its want of means to keep its streets in repair no defense on the part of a municipal corporation to an action for damages for an injury sustained by a traveller in conse- quence of their being out of repair; and we suppose that a railroad company would not be allowed to defend an action for damages for an injury to a passenger sustained through the fact of its means of trans- portation becoming out of repair and defective by reason of its want of means to keep them in repair. But when we consider the doctrine of a former section,^" that to allow young children to run upon the streets, while not negligence as matter of law, may be evidence of neg- ligence to be considered by the jury, then we must conclude that it is evidence to be considered by them in view of the surrounding facts and circumstances, — unless we are to have a new canon of evidence under which juries are to decide questions upon a part of the applicatory facts and circumstances, which men would ordinarily want to be ap- prised of before deciding whether there was negligence or not. § 330. Effect of Contributory Negligence of Parents upon Parents' Right of Action for Death or Injury of Child.^ — In States where the rule of imputed negligence is not applied, it is nevertheless necessary that the parent, in order to recover damages for the death of a child from the wrongful act of the defendant, should be free from negli- gence proximately contributing to the child's injury.^^' The pro- ploy nurses or attendants and those a This section is cited in § 293. who are not. This distinction may '" Isabel v. Hannibal &c. R. Co., be doubted; for there is not, in this 60 Mo. 475; Walters v. Chicago &c. country, one rule of law for the rich R. Co., 41 Iowa 71; Albertson v. Keo- and a different rule for the poor, kuk &c. R. Co., 48 Iowa 292; Koons It extends its protecting shield over v. St. Louis &c. R. Co., 65 Mo. 592; all alike." Language of Judge Dil- O'Flaherty v. Union R. Co., 45 Mo. Ion in Hagan's Petition, 5 Dill. (U. 70; Glassey v. Hestonville &c. R. S.) 96; cited and followed in In- Co., 57 Pa. St. 172; Pittsburgh &c. dianapolis &c. R. Co. v. Pitzer, 109 R. Co. v. Pearson, 72 Pa. St. 169; Ind. 190. Phila. &c. R. Co. v. Long, 75 Pa. St. »° Indianapolis v.Emmelmann, 108 257; Pennsylvania R. Co. v. Zebe, Ind. 530; s. c. 6 West. Rep. 354. 33 Pa. St. 318; s. c. 37 Pa. St. 420; '^'^ Mayhew v. Burns, 103 Ind. 339. Birmingham v. Dorer, 3 Brews. 69 ; ^Ante, § 324. Daley v. Norwich &c. R. Co., 26 312 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. priety of this rule will not be questioned^ as the negligence which operates as a defense in such eases is purely the contributory negli- gence of the plaintiff in the case, or that of some person duly author- ized by the plaintiff to have charge of the child, whose negligence, upon familiar principles, must be held to be that of the plaintiff. ^^* It has been held, however, that the mother of a child is not charged with the negligence of a custodian of the child chosen by the father, so as to defeat her right of action for its wrongful death.^^^ § 331. Further of this Subject. — If a child is killed, its negligence will also be a bar to an action brought by its parent, if of such an age as to be imputable with contributory negligence under the circum- stances of the case.^^° In actions by the parents, although it is gen- erally a question for the jury whether the parent has exercised reason- able care of the child,^^^ yet if it clearly appears that a parent has Conn. 591, 598; Baltimore &c. R. Co. V. Fryer, 30 Md. 47; Pennsylvania Co. V. James, 81 Pa. St. 194; David- son V. Pittsburgh &c. R. Co., 41 W. Va. 407; s. c. 23 S. E. Rep. 593; Phillips V. Duquesne Traction Co., 8 Pa. Super. Ct. 210 ; s. c. 29 Pitts. L. J. (N. S.) 60; 42 W. N. C. 528; Albert V. Albany &c. R. Co., 5 App. Div. (N. Y.) 544; s. c. 39 N. Y. Supp. 430; s. c. aff'd 154 N. Y. 780; Cincin- nati V. Gregory, 3 Ohio N. P. 142; s. c. 1 Ohio L. D. 223; Wiese v. Remme, 140 Mo. 289; s. c. 41 S. W. Rep. 797; Williams v. Texas &c. R. Co., 60 Tex. 205; Bamberger v. Citi- zens' Street R. Co., 95 Tenn. 18; s. c. 28 L. R. A. 486; 31 S. W. Rep. 163; Juskowltz V. Dry Dock &c. R. Co., 53 N. Y. Supp. 992; s. c. 25 Misc. 64. '"Ploof V. Burlington Traction Co., 70 Vt. 509; s. c. 43 L. R. A. 108; s. c. 13 Am. & Eng. Rail. Cas. (N. S.) 702; 41 Atl. Rep. 1017; Atlanta &c. R. Co. V. Gravitt, 93 Ga. 369; 6. c. 26 L. R. A. 553 ; 44 Am. St. Rep. 145, and note; Oil City &c. Co. v. Jackson, 114 Pa. St. 321; s. c. 5 Cent. Rep. 324. "= Atlanta &c. R. Co. v. Gravitt, 93 Ga. 369; s. c. 26 L. R. A. 553; 44 Am. St. Rep. 145, and note. It has been reasoned that when a father sues for an injury to his minor child, his neglectful conduct proxi- mately contributing to the injury is a bar to the action, unless the injury was caused by the wanton, reckless, intentional negligence of defend- ant's employes, after having discov- ered the peril of the child, or when they ought to have discovered the peril : Pratt Coal &c. Co. v. Brawley, 83 Ala. 371, 374; 3 Am. St. Rep. 571; 3 South. Rep. 555. But this is not an accurate statement of the rule. We have already seen that where a person who is so injured exposes himself, or his property, to danger, and another person discovers its ex- posed situation, that other is bound to the exercise of ordinary or rea- sonable care to avoid injuring him or his property, and is consequently answerable in damages for injuring him or it through a failure to exer- cise such ordinary or reasonable care, — in other words, for an injury which is the result of ordinary neg- ligence. Ante, §§ 230, 237, 238. This falls far short of the predicate of the Supreme Court of Alabama, which is "wanton, reckless, or intentional negligence." The child of Brawley, exposed through his negligence upon the railway track of the defendant, was surely entitled to the same pro- tection at the hands of the law as the ass of Davies: Davies v. Mann, 10 Mees. & W. 546; s. c. 2 Thomp. Neg., 1st ed., 1105. And Brawley ought to have had the same right of action for the death of his child which Davies had for the death of his ass. ^^Ante, § 306, et seq. ""^ Ante, § 324, et seq.; Isabel v. Hannibal &c. R. Co., 60 Mo. 483; O'Flaherty v. Union R. Co., 45 Mo. 70; Pittsburgh &c. R. Co. v. Pearson, 72 Pa. St. 169; Phila. &c. R. Co. v. Long, 75 Pa. St. 257. 313 1 Thomp. Neg.J contributory negligence. permitted a child of tender years to run at large, without a protector, in a city traversed constantly by cars and other vehicles, his conduct may be held to be negligence as a matter of law.^^' Other courts re- fuse to impute negligence as matter of law to a father, so as to pre- clude him from his right to recovery for the death of a child killed by the negligence of a person or corporation, because the father thought- lessly permitted the child to go out on the street. ^^^ In one case it was held that the personal representative of the child might recover, although the recovery would inure to the benefit of the parents as heirs of the child, although the parents would be precluded by their own contributory negligence from sustaining an action in their own right.^^" But this seems to be a great refinement.^^^ § 332. Illustrations of Negligence of Parents Barring their Right of Action. — This is well illustrated by the ease of Bellefontaine Rail- road Company v. Snyder."^^^ In an action by the child for an injury received through the negligence of defendant's servants, it was held that the negligence of the parent or custodian did not bar the child's right of action. In a subsequent action by the father of the child for loss of its services by reason of this injury, it was held that the parerit could not recover; for the negligence of his agent, the custodian of the child, having been proved, this was held to be, as a matter of law, the negligence of the father.^^^ In another case a mother allowed her child, seven years old, to serve the drivers and conductors of a street railway with water upon the ears, for a small compensation. While ^' Ante, § 323 ; Glassey v. Heston- their landlord in their yard, was, as ville &c. R. Co., 57 Pa. St. 172. matter of law, contributory negli- 2" Dan V. Citizens' Street R. Co., gence, preventing a recovery by 99 Tenn. 88; s. c. 41 S. W. Rep. 339. such parents for the death of the The custodian of a child two years child from falling Into the excava- and two months old is not guilty tion while playing in the yard, al- of negligence, as matter of law, con- though it may have been also the tributing to the death of the child, duty of the landlord to restore the from the mere fact of releasing the barrier: Wiese v. Remme, 140 Mo. hand of the child for a short time 289; s. c. 41 S. W. Rep. 797. That while talking with a friend on a the negligence of parents in allow- street on which a street railroad ing their child six years old to be tracks were located: Coghlan v. alone in the village street will not Third Ave. R. Co., 7 App. Div. 124; relieve a railway company from s. 0. 39 N. Y. Supp. 1098. liability for killing such child at a ™Wymore v. Mahaska County, 78 street-crossing through the gross Iowa 396; s. c. 6 L. R. A. 545. negligence of its employes: See By- ™ Compare Consolidated Traction gum v. Southern &c. (Cal.), 36 Pac. Co. V. Hone, 59 N. J. L. 275; s. e. 35 Rep. 415 (not off. rep.). Atl. Rep. 899. It was held in one ^^= 18 Ohio St. 399. case that the failure of the parents ™ 24 Ohio St. 670. See, however, of a child which was non sui juris upon this point, Walters v. Chicago to restore a _ barrier protecting an &c. R. Co., 41 Iowa 71. excavation, which had been made by 314 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. SO employed, the child was injured by the alleged negligence of the company. It was held that the mother was guilty of such contrib- utory negligence as barred her recovery.^^* So, a father who know- ingly permitted a child of about seven years of age to go upon the track of a railroad to get coal, at a place where trains were constantly passing, was held to be guilty of such contributory negligence as would prevent him from recovering damages for an injury received by the child when so exposed to danger.^^^ So, a mother who, in violation of the regulations of a railroad, of which she has notice, puts her child upon a freight train, was not allowed to recover for injuries occasioned by the negligence of the railroad employes who took the child in known violation of such rules.^^® So, a father was not al- lowed to recover damages from a railroad company for the death of his child who, while riding with his permission in a heavily loaded wagon, the driver of which allowed the child to sit on the footboard in front of the wheel, was thrown off and killed as the wheel dropped into a chuck-hole negligently left in a public crossing of the railroad. ^^^ § 333. When Parent Chargeable with Negligence of Custodian. — A parent, who is the plaintiff in the action, is chargeable for the neg- ligent and wrongful acts of a person to whom he entrusts the custody and care of his minor child. Hence, the negligence of a grandmother in permitting her grandchild to trespass on a railroad track where trains are constantly passing was held a bar to a recovery for injuries to the child, in an action brought by the father, who had placed the child in the care and custody of the grandmother.^^* So, in' an action by a father against a railway company to recover damages for the kill- ing of his infant son, it was held that there could be no recovery where it appeared that the cause of the death was the negligence of the per- son with whom the child was riding with the plaintiff's consent.^"" The rule of sense and justice is that if negligence can not be attrib- uted to a child on account of its incapacity to appreciate danger, or want of discretion to avoid it, then it is the duty of the parent to use all reasonable care to protect him from impending perils. The fail- ure of the parent to do so, contributing to the death of the child, will bar the parent's right of recovery for such killing. The negligence of the child is imputed to the parent.^'" =" Smith v. Hestonville &c. R. Co., "^ Pratt Coal &c. Co. v. Brawley, 92 Pa. St. 450; s. c. 37 Am. Rep. 705. 83 Ala. 371; s. c. 3 Am. St. Rep. 751; ^ Pratt Coal &c. Co. v. Brawley, 3 South. Rep. 555. 83 Ala. 371; 3 Am. St. Rep. 751; 3 ^ Lake Erie &c. R. Co. v. Pike, South. Rep. 555. 31 III. App. 90. See also Toledo &c. "•Whitehead v. St. Louis &c. R. R. Co. v. Miller, 76 111. 278. Co., 22 Mo. App. 60. ^ Senn v. Southern R. Co., 124 '^ Lake Brie &c. R. Co. v. Pike, Mo. 621. Thus where an adult, hav- 31 111. App. 90. ing the care of a girl eight years 315 1 Thomp. Neg.J contributory negligence. Article IV. Injuries to Other Persons Non Sui Juris. Section SECTioif 336. Greater care required of per- 339. Care required of women. sons -who are blind, deaf, 340. Voluntary intoxication of the aged or otherwise infirm. person injured. 337. Application of the rule to deaf 341. Further of voluntary intoxica- persons. tion. 338. Application of the rule to per- sons non compos mentis. § 336. Greater Care Required of Persons who are Blind, Deaf, Aged or Otherwise Infirm. — If a person is deprived in whole or in part of the use of one of his senses, such as hearing or sight, the obligation of exercising ordinary care for his safety easts upon him the duty of being correspondingly more careful than if he had the full use of all his senses.^'^ Therefore, in an action to recover damages sustained by the plaintiff in consequence of having been run over by the defend- ant's ice wagon while crossing a street, the plaintiff having testified that he was seventy-five years old and very hard of hearing, — it was held that the defendant was entitled to have the jury instructed that if they found that the plaintiff was deaf or hard of hearing, this in- firmity "cast on him the duty of being more careful in keeping a proper lookout for passing vehicles than if he was in the possession of his faculty of hearing."^^^ So, a Hind man who, while unattended upon the street of a city, falls into an open drain, knowing well its existence and character, is bound, in an action against the city for the injuries thereby brought upon himself, to show affirmatively that there was no fault or negligence on his part, though there is no general rule in that State requiring the plaintiff to show affirmatively his freedom from contributory negligence.^'' It is comforting to blind people living in Boston to know that there is no universal rule of law making it negligence in them to walk the streets of that city unattended.^'* On the contrary, it has been held that the law does not require an old person to exercise greater care to avoid injury than it requires of a young and vigorous person. ^'° It should be added that notice of the old, left the street car on which s. c. 22 Atl. Rep. 1049; Stewart v. they had been riding and went upon Nashville, 96 Tenn. 50; s. c. 33 S. W. an adjoining track, without having Rep. 613. hold of the child, and the child was ^^Fenneman v. Holden, 75 Md. 1; run over by a car coming from the s. c. 22 Atl. Rep. 1049; Purl v. St. opposite direction at a negligent Louis &c. R. Co., 72 Mo. 168. rate of speed, — it was held the cus- ^ Steward v. Nashville, 96 Tenn. todian was chargeable with contrib- 50; s. c. 33 S. "W. Rep. 613. utory negligence sufficient to defeat ^ Smith v. Wildes, 143 Mass. 556; recovery by the father of the child: s. c. 3 N. E. Rep. 744. Reed v. Minneapolis Street R. Co., ^^ Culbertson v. Holliday, 50 Neb, 34 Minn. 557. 229; s. c. 69 N. W. Rep. 853. ^Fenneman v. Holden, 75 Md. 1; 316 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. mental deficiency of a person who is incapable of exercising care is necessary in order to make another person liable for injury to him where he would not be liable to a person of ordinary capacity.^''' § 337. Application of the Rule to Deaf Persons. — A deaf person approaching, in his buggy, a railroad crossing, saw the smoke of a moving train to the east of him, but did not take pains to ascertain whether it was coming towards him or not, but assumed that it was going in the other direction. After having crossed the track and driven a considerable distance along a road which ran parallel with it, he turned and recrossed it without looking in the direction of the train, though if he had looked he would have seen it. While so re- crossing, he was struck by the train and injured. It was held his contributory negligence barred him from recovering damages. The fact that he was deaf rendered it incumbent upon him to exercise his other faculties with greater care. The courts said: "The very fact that Purl saw indications of the train moving upon the track, though such train seemed distant, ought of itself to have sounded the alarm in the ear of his caution and kept his faculties on the alert. Instead of that, however, the mute warning of the smolfe of a moving train seems to have silenced the promptings of prudence and led him to dis- regard its most obvious dictates. If, therefore, he has suffered an injury in either person or property he must be content to abide the result of his own rashness, a result which could have been averted by the exercise of the very minimum of care. And the case is not altered, nor does it become more favorable for the plaintiff by reason of his deafness. Such an affliction, so far from excusing one who might have seen the train, should rather add a spur to his vigilance and prompt him to employ his other faculties so as to compensate, as far as possible, for the lacking one."^''' § 338. Application of the Bnle to Persons Non Compos Mentis. — With regard to the degree of care required of a person who is not in a legal sense non compos mentis so as to require a guardian, it has been said : "If he was merely a person of dull mind, who could labor for his own livelihood, and there was no apparent necessity of puttidg him under the protection of a guardian to keep him out of harm's way, he is chargeable with the same degree of care for his personal safety as one of brighter intellect; as any attempt to frame and adapt varying rules of responsibility to varying degi'ees of intelligence would neces- "° Worthington v. Mencer, 96 Ala. Mo. 168, 172. See also Zimmerman 310; s. c. 11 South. Rep. 72. v. Hannibal &c. R. Co., 71 Mo. 476. " Purl v. St. Louis &c. R. Co., 72 817 1 Thomp. Neg.] contributoey negligence. sarily involve confusion and tincertainty in the law. If, on the other hand, he was so absolutely devoid of intelligence as to be unable to ap- prehend apparent danger, and to avoid exposure to it, he can not be said to have been guilty of negligence because he was incapable of exer- cising care. (When the mere negligence of another causes or contributes to the injury of a person who is mentally incompetent to such a de- gree, if the conduct of the injured person would have avoided his claim to relief if he had been capable of exercising care in his own be- half, the person inflicting the injury is not to be held to a liability which would not have been incurred under the same circumstances in favor of a person of ordinary capacity, unless he had notice of the in- jured person's mental deficiency, and of his consequent helplessness and peril in the circumstances in which he was placed. The duty of observing special precautions for the safety of another, because the latter, by reason of mental imbecility, can not be influenced by the dictates of ordinary prudence, is not cast upon one who is not charged with notice of the other's peril and of his lack of sufficient intelligence to avoid it. When it is sought, in behalf of an adult, to avoid the con- sequences of his own conduct, and to charge another with liability for a result to which such conduct contributed, the burden is upon him to show that he was not responsible for his own acts, and that the person sought to be charged was under the duty of dealing with him as one incompetent to care for himself. The mental deficiency of an adult which would exempt him from accountability for his conduct approx- imately contributing to his personal injury, would also render him an incompetent witness of the occurrence in which the injury was re- ceived."^'** So far as this language relates to the degree of care in- cumbent upon the defendant, this opinion is believed to be sound; but in so far as it lays down a rule of law which demands the same standard of care from persons of enfeebled or impaired faculties — for example from old men or women — as is required of persons possessing the ordinary use of their faculties, it is believed to be unsound. The sound view is believed to be that the age, the experience, and the men- tal and physical condition of the plaintifE or person injured should be exhibited by the evidence to the jury, and if it appears that such per- son did not possess the average knowledge, experience, mental or phys- ical alertness, having reference to the particular surroundings, the jury should be instructed, as in the case of children, that the law does not deny him his right of action for a wrong done him by another provided he exercised the degree of care of which he was capable.^^* =^» Worthington v. Mencer, 96 Ala. '^^ Ante, § 309. 310, 315-16; s. c. 11 South. Rep. 72, opinion by Walker, J. 318 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. This was what the court started out to say, and did say, at the begin- ning of the above quotation when it used the following language: "The plaintiff is to be held to the exercise of the degree of care to which he was capable." But in the language immediately following, which we have quoted above, the court proceeds to inform him that he was bound to exercise a degree of care of which he may not have been capable.^*" The standard of an ideal reasonable man — an ab- stract man — a man in the clouds — is not a standard favorable to justice, and it is a conception very liable to mislead weak and opinion- ated juries. The jury ought to be possessed of the real facts includ- ing the age, the condition, the knowledge, the experience and capacity of the person injured, and then ought to be allowed to say whether, under all the circumstances, he acted reasonably or unreasonably ; and this, in point of fact, is the theory upon which nearly all cases are tried.2" § 339. Care Required of Women. — There seems to be no rule of law which excuses a woman from exercising a less degree of care for her safety than is required of a man, and a powerful judicial argu- ment is found in one case to show that there can be no such rule.''*^ It has therefore been held error to tell a jury, in a case where a woman was suing for an injury, that the law did not expect or require the same degree of care and prudence in a woman as in a man.^^* But it has been held not error to tell the jury in such a case that "care im- plies attention and caution, and ordinary care is such a degree of attention and caution as a person of ordinary prudence of the plaint- iff's age and sex would commonlj'', and might reasonably, be expected to exercise under all the circumstances of the case.^** In another case where the actor was a woman, it was held that an instruction, to the effect that she was bound to observe the conduct of a woman of ordinary prudence, was not erroneous because of being thus special.''*^ It has also been reasoned that a woman driving a horse on a highway may be presumed to be somewhat wanting in the "amount of knowl- edge, skill, dexterity, steadiness of nerve or coolness of judgment — in short, the same degree of competency" which we may presume in a ^" Worthington v. Mencer, 96 Ala: signed, see Kalamazoo Nat. Bank v. 310, 315; s. c. 11 South. Rep. 72. Clark, 52 Mo. App. 593. ^" That it can not be said as matter ^ Hassenyer v. Michigan &c. R. of law to be negligent for a partially Co., 48 Mich. 205 ; s. c. 42 Am. Rep. blind and illiterate old man with 470; opinion by Cooley, J. impaired mental powers to sign a ^ Hassenyer v. Michigan &c. R. note on the faith of a written provi^ Co., supra. sion upon the back of it, without "" Snow v. Provincetown, 120 having it read to him by anybody Mass. 580. except the person for whom it was '" Bloomington v. Perdue, 99 111. 329. 319 1 Thomp. Neg.] contributory negligence. man; and consequently a person meeting her under circumstances threatening a collision should govern his own conduct with some re- gard to her probable deficiencies.^**' While usually women are more timid than men, as Mr. Justice Cooley points out in the case first above cited, yet the ordinary sphere of their life is indoors, and hence it can not be said, upon common experience, that when outdoors they are as capable of understanding a dangerous situation or of exercising as good judgment in avoiding it, or in extricating themselves from it, as men are. Upon the reasoning of the preceding section, in a case where an action is brought for an injury to a woman, her age, knowl- edge, experience and capacity to take care of herself in the given situ- ation ought to be given to the jury, and they ought to be told — as in the case of children^*' — that the law requires of her no more care for her own safety than is commensurate with her years, knowledge, ex- perience, sex and capacity. And this is consistent with the conclusion that the jury can not be instructed that the law does not require the same degree of care and prudence in a woman as in a man; because, in some situations and under some conditions it does not ; and, gener- ally speaking, the law has no rule on the subject, but it ought to be left to the jury.2*« § 340. Voluntary Intoxication of the Person Injured.* — ^Voluntary intoxication on the part of a person killed or injured does not, as a general rule, constitute negligence in law, but is usually an eviden- tiary fact to be considered by the jury in determining whether or not such person was, at the time of the accident, taking that care for his own safety which ought to have been expected of a reasonably prudent man under the circumstances.^*® Voluntary intoxication can not be pleaded to avert the consequences of one's own negligence:^'"' it is not even an excuse for crime. And it is plain enough that drunkenness does not excuse contributory negligence, unless in cases where the helpless condition of the drunkard is perceived by the other party, in ^« Daniels v. Clegg, 28 Mich. 33, 30 Conn. 321; O'Hagan v. Dillon, 10 42. Jones & Sp. 456; Tompkins v. Os- '" Ante, § 309. wego, 61 Hun (N. Y.) 619; s. c. 15 2»» That sex is no excuse for negli- N. Y. Supp. 371 ; Fernbach v. Water- gence, see Fox v. Glastenbury, 29 loo, 76 Iowa 598; s. c. 41 N. W. Rep. Conn. 204. 370; Camp v. Wood, 76 N. Y. 92; a This section is cited in §§ 37, Kingston v. Fort Wayne &c. R. Co., 196. 112 Mich. 40; s. o. 9 Am. & Bng. "» Baltimore &c. R. Co. v. Boteler, Rail. Cas. (N. S.) 259; 70 N. W. 38 Md. 568; Healy v. New York, 3 Rep. 315; 3 Det. L. N. 842; 40 L. R. Hun 708; Ditchett v. Spuyten Duyvil A. 131; modified on rehearing in &c. R. Co., 5 Hun 165; Alger v. Low- 112 Mich. 45; s. c. 40 L. R. A. 149; ell, 3 Allen 402; Stuart v. Machias 74 N. W. Rep. 230; 4 Det. L. N. 1014, Port, 48 Me. 477; Cramer v. Bur- and note to same in 40 L. R. A. 131. lington, 42 Iowa 315; Burns v. Elba, ™ Welty v. Indianapolis &c. R. Co., 32 Wis. 605; Thorp v. Brookfield, 105 Ind. 55; s. c. 2 West. Rep. 653. 320 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. time, by the exercise of reasonable care, to avoid injuring him.^^^ Upon an issue whether the person injured was in the eiaereise of ordi- nary care at the time, it will therefore be error to exclude from the jury evidence tending to show that he was intoxicated.^^^ It has been said that "when one, by reason of his own voluntary intoxication, ex- poses himself to danger and receives injuries which he could, and by the exercise of reasonable or ordinary prudence would, have avoided if sober, he is guilty of contributory negligence, and can not recover for such injuries."^ ^* § 341. Further of Voluntary Intoxication.^ — But it should be care- fully kept in mind that voluntary intoxication on the part of a person killed or injured is or is not to be regarded as equivalent to contribu- tory negligence, accordingly as it contributes or does not contribute to bring about the injury ;^^* or accordingly as it is or is not to be re- garded as the proximate cause of the injury.^^^ Suppose, for ex- ample, that a boat capsizes and all the passengers are drowned, and the evidence shows that none of the passengers could, by any possibility, have saved himself, the mere fact that one of them happened to be drunk at the time would be wholly irrelevant, and would not tend to show contributory negligence. So, suppose that a man, through vol- untary drunkenness, exposes himself upon a railway track in a con- dition of absolute intoxication, then, while it will be negligence for those in charge of an approaching train to run over him, if they see him so exposed in time to avoid the catastrophe by the exercise of reasonable care, or if, by keeping a reasonable lookout, they might have so seen him in time so to avoid injuring him but failed to do so, — on the principle already and hereafter considered,^ ^"^ the negli- gence of the railway company will be the proximate cause of the acci- dent. But, assuming them not to have been so negligent, the catas- trophe is to be ascribed to his voluntary intoxication, which is tanta- "" That the drunkenness of a tres- "^ Illinois &c. R. Co. v. Cragin, 71 passer who sits down on a railroad 111. 177; Wynn v. Allard, 5 Watts track does not excuse him from the & S. 524. consecfuences of his negligence, — see ^ Woods v. Tipton County, 128 Price v. Philadelphia &e. R. Co., 84 Ind. 289, 294; s. c. 27 N. E. Rep. 611. Md. 506; s. c. 36 L. R. A. 213; 36 a This section is cited in §§ 37, Atl. Rep. 263. On the subject of 196. intoxication as affecting contribu- ^"Ward v. Chicago &e. R. Co., 85 tory negligence, see Seymer v. Lake, Wis. 601; 55 N. W. Rep. 771; Davis 66 Wis. 651; Columbus &c. R. Co. v. v. Oregon &c. R. Co., 8 Ore. 172; Wood, 86 Ala. 164; Lynch v. New Lynch v. New York, 47 Hun (N. Y.) York, 47 Hun (N. Y.) 524; Woods v. 524; s. c. 15 N. Y. St. Rep. 103. Tipton County, 128 Ind. 289; Tomp- =»= Northern &c. R. Co. v. Craft, kins V. Oswego, 61 Hun 619 ; Ward 69 Fed. Rep. 124 ; s. c. 29 U. S. App. v. Chicago &c. R. Co., 85 Wis. 601; 687; 16 C. C. A. 175. Illinois &c. R. Co. v. Hutchinson, '"''Ante, § 239; post, § 344. 47 111. 408. VOL. 1 THOMP. NEG. — 21 321 1 Thomp. Neg.J contributory negligence. mount, in theory of law, to contributory negligence.^" ^ So, it has been ruled proper to tell the jury that if they believe from the evi- dence that the plaintiff, while intoxicated, and at the usual and ordi- nary time of the defendant's running its train on the track on which the accident happened, was on said track, or standing between the rail of the same and the freight depot, then the plaintiff was guilty of negligence.^' ^ It has been reasoned that the standard of care which the law demands of every person is that which a reasonable person in his sober senses ought to exercise under the circumstances; and therefore it is not error to refuse to charge a jury, in substance, that, if the plaintiff was intoxicated, he was bound to exercise a greater de- gree of care than if sober. ^'® Article V. Other Matters. Section 343. Injuries to trespassing chil- dren. 344. Rule where injury to child could have been avoided by exercise of ordinary care. 345. Care required to avoid injuring children. Section 346. Negligence of child as affecting right of action of parent. 347. What facts amount to prima facie evidence of negligence in cases of injuries to chil- dren. 348. Questions of evidence in these cases. § 343. Injuries to Trespassing Children.^ — This subject involves the contributory negligence of the trespassing child in putting himself in the place of danger ; but it primarily involves a consideration of the nature and extent of the obligation which the law imposes upon land- owners for the protection of children coming upon their premises. As ^"O'Keefe v. Chicago &c. R. Co., 32 Iowa 467. This decision denied the doctrine expressed ante, § 239, "ought to have known." ^=*Whalen v. St. Louis &c. R. Co., 60 Mo. 323, 327. 2»» Chicago &c. R. Co. v. Drake, 33 111. App. 114. Judgment for plaint- iff reversed because jury instructed that "the fact of Intoxication alone" would not "prove contributory neg- ligence," unless the proof showed such a degree of intoxication that "imbecility would begin to affect" the intoxicated person, — such in- struction being regarded as liable to mislead the jury: Fitzgerald v. Wes- ton, 52 Wis. 354. In an action to recover damages to the estate of plaintiff's decedent caused by selling liquors to the decedent, by which he became intoxicated, and the expel- 322 ling him from a saloon, late at night, thereby causing his death by expos- ure, it was held that an instruction that the purchase and drinking of liquor by the deceased constituted contributory negligence, which would bar a recovery, was erroneous: Weymire v. Wolfe, 52 Iowa 533. Upon the question, what will be evi- dence tending to prove intoxication, we find that it has been held, in an action for injuries alleged to have been caused by the negligence of a street-car driver, his intoxica- tion may be shown by proof that he drank at a liquor store just before starting on the trip, and by show- ing various negligent acts during the trip: Pyne v. Broadway &c. R. Co., 46 N. Y. St. Rep. 662; s. c. 19 N. Y. Supp. 217. a This section is cited in § 297. INJURIES TO CHILDEEN AND OTHERS NON SUI JURIS. [2d Ed. these two elements can not be conveniently separated, it is thought best to treat them together in the chapter relating to the liability of land-owners for injuries arising from defects in their premises.^^" § 344. Rule where Injury to Child could have been Avoided by Exercise of Ordinary Care.* — The rule to which we have often re- curred, not only in this, but also in a preceding chapter,^ ^^ which pro- tects not only persons who are sui juris, but also personal property, animate and inanimate, of course operates to protect a child who may be exposed to danger through the negligence of himself or of his parent, guardian or custodian. Applying this rule, where a boy ten years old, walking on a railroad track where there was no thorough- fare, caught his foot between the rail and guard, so that he could not extricate it, and an engine ran over and crushed his foot, — it was held that if the employes on the engine, on seeing the boy's position, could have prevented the accident by reasonable diligence, the company was liable. ^"^ In an action by an administrator to recover, on behalf of a father, mother, and next of kin, damages for the killing of a boy ten years old by running over him with a street car, — it was held that the a'ct of his parents in permitting him to go at large on the public street did not proximately contribute to his death j^"^ and this is plainly the law."* § 345. Care Required to Avoid Injuring Children. — Greater care must undoubtedly be exercised with reference to children than to adults, to avoid injuring them;^®' and this care must be increased in proportion to the known or apparent immaturity, indiscretion,, and helplessness of the child. § 346. Negligence of Child as Affecting Eight of Action of Par- ent. — If the child is so young as to be, in theory of law, incapable of negligence, then the question of the negligence of the child can not, of course, enter into the right of action of the parent; but the only question which can arise, under the head of contributory negligence, will be the negligence of the parent or other custodian of the child in exposing the child to the injury which befell it. If there was negli- gence on the part of the defendant which was the proximate cause of the injury which happened to the child, and no negligence on the part '^Post, § 1024, et seq. Co., 70 Vt. 509; s. c. 43 L. R. A. 108; a This section is cited in § 341. 13 Am. & Eng. Rail. Cas. (N. S.) ^'Ante, §§ 85, 86, 230, et seq. 702; 41 Atl. Rep. 1017. ^^ Burnett v. Burlington &c. R. ^"^ Ante, § 324, et seq. Co., 16 Neb. 332. ^' Indianapolis &c. R. Co. v. Pitzer, '^Ploof V. Burlington Traction 109 Ind. 179; s. c. 4 West. Rep. 256. 323 1 Thomp. Neg.] contributory negligence, of the parent, then the want of discretion of the child will be no de- fense.-"* But the immaturity and helplessness of the child imposes a corresponding degree of care upon the parent to protect it from in- jury ; and if the child is so young that negligence can not be attrib- uted to it, then the failure of the parent to use reasonable care to pro- tect it from an impending peril will bar any right of recovery on the part of the parent for an injury to the chiM.^*^ On the other hand, if the child is capable of exercising care and fails to do so, and is for that reason hurt, then the negligence of the child will be imputed to the parent, and will prevent the parent from recovering any damages which the parent may have sustained in consequence of the injury to the child. ^"^ For example, under the view of the subject taken in many jurisdictions,^*' a parent can not recover damages for the death of his child who met its death in consequence of trespassing upon the premises of the defendant.^^" § 347. What Facts Amount to Prima Facie Evidence of Negligence in Cases of Injuries to Children. — A child playing upon or about a railroad track, if it has exercised all the care of which it is capable under the circumstances, may recover for an injury received in conse- quence of the negligent operation of trains upon such track.^^^ But, of course, no recovery can be had in such a case where no breach of duty on the part of the defendant is shown.^'^ In cases of injuries * 206 Phillips v. Duquesne Traction consent or acquiescence: Union Co., 8 Pa. Super. Ct. 210; s. c. 29 News Co. v. Morrow, 20 Ky. L. Rep. Pitts. L. J. (N. S.) 60; 42 W. N. 0. 302; s. c. 46 S. W. Rep. 6 (not to be 528. rep.). ™'Senn v. Southern R. Co., 124 "' Daley v. Norwich &c. R. Co., Mo. 621; s. c. 28 S. "W. Rep. 66. 26 Conn. 591; Hicks v. Pacific R. ='»Senn v. Southern R. Co., 124 Co., 64 Mo. 430; Chicago &c. R. Co. Mo. 621; s. c. 28 S. W. Rep. 66. Fitz- v. Murray, 71 111. 601; Railroad Co. gerald v. St. Paul &c. R. Co., 29 v. Gladmon, 15 Wall. 401; Chicago Minn. 336; Pratt Coal &c. Co. v. &c. R. Co. v. Dewey, 26 111. 259; per Brawley, 83 Ala. 371; Kennard v. Walker, J.; Pittsburgh &c. R. Co. Burton, 25 Me. 39; s. c. 43 Am. Dec. v. Bumstead, 48 111. 221; Pennsyl- 249; Chicago &c. R. Co. v. Harney, vania R. Co. v. Morgan, 82 Pa. St. 28 Ind. 28; Burke v. Broadway &c. 134; Kay v. Pennsylvania R. Co., 65 R. Co., 49 Barb. (N. Y.) 529; Boland Pa. St. 269; North Pennsylvania R. v. Missouri &c. R. Co., 36 Mo. 484; Co. v. Mahoney, 57 Pa. St. 187; Nor- Pennsylvania R. Co. v. Lewis, 79 folk &c. R. Co. v. Ormsby, 27 Gratt. Pa. St. 33. 455; Ranch v. Lloyd, 31 Pa. St. 358; ''"' Post, § 1024, et seq. Pennsylvania R. Co. v. Kelly, 31 Pa. ""Gay V. Essex &c. R. Co., 159 St. 372; Manly v. Wilmington &c. R. Mass. 238, which follows a long line Co., 74 N. C. 655. of decisions in that State laying "^ Phila. &c. R. Co. v. Hummell, 44 that rule down as the law. It has Pa. St. 375; Ostertag v. Pacific R. been held that the contributory Co., 64 Mo. 421; Snyder v. Hannibal negligence of a minor does not pre- &c. R. Co., 60 Mo. 413; Boland v. vent a recovery, by his mother, of Missouri &c. R. Co., 36 Mo. 484; damages accruing to her from a neg- Bulger v. Albany &c. R. Co., 42 N. ligent injury inflicted upon him in Y. 459; Meeks v. Southern Pacific the course of an employment in R. Co., 52 Cal. 602. which he was engaged without her 324 INJURIES TO CHILDREN AND OTHERS NON SUI JURIS. [2d Ed. to children from the operation of railroad trains, a failure to comply with statutes which have for their primary object the protection of domestic animals has been held to be proper evidence of negligence on the part of the railroad company.^'^ It is not, however, sufficient evi- dence of negligence to justify the submission of a case of this kind to the jury, that a single rail was off a fence enclosing a railroad track, and that children were injured on the track in the vicinity ;^^* or that a street-car drawn by a single horse, the driver acting at the same time as conductor, ran over a child, whom the driver noticed standing near the track when his car was about twenty or thirty feet distant, his attention being afterwards diverted to a passenger in the car.^'^ If the driver of a street car permits or invites children to ride thereon, such an act will be regarded as within the scope of his employment; and therefore the fact that he suffers the children to ride upon the front platform will in certain cases be held to be evidence of negli- gence.^'* But previous encouragement alleged to have been given by the defendant's servants to a child to get upon their cars while in motion, even if it could be considered within the range of their em- ployment, can not be regarded as the proximate cause of an injury resulting from the attempt of the child to climb upon the cars while in motion, the defendant's servants being at the time in the exercise of ordinary care, and in ignorance of the child's attempt to get upon the cars.^^' It is held, also, that a street railroad company is not re- sponsible for an injury received by a newsboy, though only eight years old, who is allowed free access to the cars, merely because the accident might have been prevented by the attention of their servants.^'* § 348. ftuestions of Evidence in these Cases. — It has been held, in an action by a father for the death of his child that fell into an ex- "' Schmidt V. Milwaukee &c. R. driver of a street-car are such that Co., 23 Wis. 186; Isabel v. Hannibal his attention is necessarily distract- &c. R. Co., 60 Mo. 475. ed from the control of the speed of "' Singleton v. Eastern Counties his car and the safety of pedes- R. Co., 7 C. B. (N. S.) 287. trians, to such details as selling "" Citizens' Street R. Co. v. Carey, tickets and making change for some 56 Ind. 396. See also Hestonville passengers, giving information to &c. R. Co. V. Connell, 88 Pa. St. 520; others, watching those desirous of s. c. 6 W. N. C. 514; 8 Cent. L. J. avoiding payment of their fare, and 306. The numerous accidents which attending to a variety of other du- have happened from the running of ties, while the car is advancing at street cars with a single man in greater or less speed, charge suggest the consideration "" Wilton v. Middlesex R. Co., 107 that although this man may have Mass. 108; Pittsburgh &c. R. Co. v. done his duty fully, yet the proprie- Caldwell, 74 Pa. St. 421. tors are not absolved from the "' Snyder v. Hannibal &c. R. Co., charge of negligence in the opera- 60 Mo. 413. tion of their line. It would seem to "' Fleming v. Brooklyn R. Co., 1 be negligence of a most reprehensi- Abb. N. C. 433. ble character that the duties of the 325 1 Thomp. Neg.J contributory negligence. posed excavation, evidence that the father had no property, was a poor man, and was unable to employ any one except his housekeeper to take care of his children, has been held not admissible on the question of contributory negligence. ^^^ In an action by a father for an injury to his infant son ten years old through an unguarded and unfastened railroad turntable, it was held that the testimony of a witness as to the judgment and discretion of the boy, and especially as to his pru- dence or recklessness, was rightly excluded,^*" — a very doubtful con- clusion, since the capacity of the boy and his understanding of the danger is an element proper to be considered upon the question of his contributory negligence, the rule being that the law requires him to exercise only a degree of care and prudence conformable to his age and capacity ; .and especially in view of the known fact that such evi- dence is considered in nearly all such cases. But the ruling that evi- dence that there had been former accidents upon the same turn-table was properly excluded was plainly correct, in view of the fact that there was no evidence that the railroad company knew of such acci- dents.^*^ On the question of the contributory negligence of a child of seven struck by a train, evidence thqt the child was frightened by cattle and sought refuge on a trestle to escape from the cattle is ad- missible, this being proper to be considered in determining that ques- tion, and also a part of the res gestae.^^^ In an action by an admin- istrator to recover damages for the death of a child seven years old who was struck by the defendant's train, it was held error to reject evidence offered by the plaintiff to prove that persons had been in the habit of travelling up and down the railroad track at the place where the accident occurred, for several years prior to its occurrence. This, it was held, was a circumstance which the jury had a right to consider upon the question whether the railroad company was negligent in the premises.^*^ In an action by a father to recover damages for the negligent killing of his child nineteen months old, it has been held that evidence is admissible as to his wife's previous care of the child, and that an older son was very careful with it, in order to show that he was not guilty of contributory negligence in leaving it with them, where such negligence has been pleaded as a defense.^ ^* "» Mayhew v. Burns, 103 Ind. 328, ^' Cassida v. Oregon &c. R. Co., 338. Compare ante, § 329. 14 Ore. 551. ^ Bridger v. Asheville &c. R. Co., ^ Cassida v. Oregon &c. R. Co., 27 S. C. 456; s. c. 13 Am St. Rep. 14 Ore. 551. See also Townley v. 653; 3 S. E. Rep. 860. Chicago &c. R. Co., 53 Wis. 634. ^ Bridger v. Asheville &c. R. Co., ''" San Antonio &o. R. Co. v. 27 S. C. 456; s. c. 13 Am. St. Rep. Vaughn, 5 Tex. Civ. App. 195; s. c. 653; 3 S. B. Rep. 860. 23 S. W. Rep. 745. 326 IN PARTICULAR STATES OP FACT. [2d Ed. CHAPTER XIL CONTRIBUTORY NEGLIGENCE IN PARTICULAR STATES OP PACT. Section Section 350. Various facts amounting to 356. Other such facts. contributory negligence as 357. Facts not amounting to evi- matter of law. dence of contributory negli- 351. Various other facts amounting gence. to contributory negligence. 358. Contributory negligence in cases 352. Other such facts. of collisions of vessels. 353. Continued. 359. In cases of collisions of vessels, 354. Facts amounting to prima facie continued. evidence of contributory neg- 360. In case of loss of goods of guest ligence to go to the jury. at public inn. 355. Other facts affording prima 361. In actions for malpractice. facie evidence of contribu- tory negligence. § 350. Various Facts Amounting to Contributory Negligence as Matter of Law. — Contributory negligence being, as already seen, in general, a question for the jury, it would be an unprofitable task to collate the facts which have been held sufficient to support the ver- dicts of juries which either affirm or disaffirm the existence of con- tributory negligence in particular cases; but there are many cases arising on demurrers to affirmative pleadings, and on exceptions to the action of trial coiirts in entering nonsuits, and on the review of ver- dicts upon an examination of the facts, as is done in some jurisdic- tions, where the question whether contributory negligence did or did not exist has been determined as a question of law. Of these cases the governing rule is that where the material facts affecting the ques- tion of alleged contributory negligence are undisputed and admit of no doubtful or opposing inference, whether or not they establish such negligence is a question of law for the court. ^ Some cases illustrating this rule will now be adverted to. A. left his horses and cart stand- ing upon a public pier or dock, within two feet of the edge, at a time when the pier was crowded, and there was room for only one horse 'Seefeld v. Chicago &c. R. Co., 70 Milne v. Walker, 59 Iowa 186; post. Wis. 216; s. 0. 35 N. W. Res. 278; § 428. 327 1 Thomp. Neg.] contributory negligence. and cart to pass upon it. The horse's bit was out, and he was feeding. B.'s cart, in passing, came in contact with A.'s cart, and A.'s horse and cart were thrown into the river. The horse was drowned. The negligence of A. precluded him from recovering damages of B.^ A photographer ordered of a dealer a quantity of hyposulphate of soda. The dealer, by mistake, gave him sulphate of iron. A servant of the photographer threw some of it into a solution, and spoiled several hundred pictures. Slight attention on his part would have discovered that the substance was not hyposulphate of soda. The photographer could not recover damages of the dealer, because of this contributory negligence of his servant.^ § 351. Various Other Facts Amounting to Contributory Negli- gence. — The plaintiff, a person of full age, contracted with the de- fendant to carry certain goods for her in his cart. The defendant sent his servant with his cart ; and the plaintiff, by permission of the servant, but without the defendant's authority, rode in the cart with her goods. On the way, the cart broke down and the plaintiff was turned out and severely injured. It was held that, as the defendant had not contracted to carry the plaintiff, and as she had ridden in his cart without his authority, he was not liable for the injury. It was brought upon her by her own culpable conduct.* The slave of A. secretly rode his master's horse to the slave-quarters of B. The horse got loose and strayed into the field of B., where B. had set a spring- gun to kill bears, and was killed by the gun. It was held that A. could not recover damages of B., although the field of B. was not en- closed by a lawful fence.'' The servant of the plaintiff drove the plaintiff's team to the defendant's warehouse and wharf, and hitched the horses to a clog, but wound his lines round the hub of his wagon, so that when the horses backed the lines became shortened, by which means the horses were caused to back into the river, where they were drowned and the wagon and harness lost. It was held that the plaint- iff could not recover damages of the defendant for failing to provide his premises with hitching-posts, but that the action was defeated by the contributory negligence of his servant." § 352. Other Such Facts. — A. suffers his horse to run at large in violation of law, knowing that there is a dangerous excavation in an unused street of the city, which the city has suffered to remain with- ' Morris v. Phelps, 2 Hilt. 38. " Bethea v. Taylor, 3 Stew. 482. » Fredericks v. Taylor, I! Abb. Pr. " Buckingham v. Fisher, 70 111. (N. S.) 77. 121. *Lygo V. Newbold, 9 Exch. 302. 328 IN PARTICULAR STATES OP FACT. [2d Ed. out being filled up. The horse falls into the excavation and is killed. A. can not recover damages of the city. The court say: "The plaintiff had equal if not more knowledge than the defendant of the excavation, and with such knowledge he turned his mare loose in its vicinity. The conduct of each party must be tried by the same stand- ard or test. If the defendant had reason to apprehend injury from the excavation, so had the plaintiff. If the defendant was negligent in permitting the excavation to exist without barriers to keep stock from falling therein, the plaintiff was negligent in turning his animal loose near it, knowing its condition. The same facts which show the negligence of one, show the contributory negligence of the other." The court then went on to point out that the animal was at large in violation of law, as an additional reason for this conclusion.'' A mer- chant kept in his cellar three jars of liquid used in cleaning silver. Two of the jars contained water, and the third cyanide of potassium. The last jar was labeled poison, and had on it a skull and cross-bones. A workman employed by the owner of the building in making repairs drank of the latter jar, believing it to be water, and died from the effect of the poison. It was held that the jury should have been in- structed, as matter of law, that the plaintiff could not recover.* The plaintiff left for several months a loaded gun, resembling a walking- cane, in her yard. It was taken up by the servant (slave) of the de- fendant, a boy about fourteen years old, in whose hands it went off, and killed the plaintiff's slave. The negligence of the plaintiff, in leaving such an instrument in her yard for such a length of time, pre- cluded her from recovering damages.^ § 353. Continued. — The building of A. has a projecting roof, which casts water upon the land of B. This water so weakens the wall of B.'s house that it falls, and in falling injures the building of A. A.'s tenant can not recover damages of B. ; for this injury was the result of his own contributory negligence in suffering the building of which he was tenant to remain in a condition to produce such an injury to B.'s building.^" Two men, crossing in a skiff the track of a line of ferry-boats, which pass every six minutes, fail to look in the direction in which one of the boats is approaching, and in consequence of this are run down. This is contributory negligence, barring a recovery of damages. ^^ A boiler-maker was sent by his employer to repair the boiler in a manufacturing establishment. He directed the closing of 'Gribble v. Sioux City, 38 Iowa "Martin v. Simpson, 6 Allen 390. (Mass.) 102. ' Callahan v. Warne, 40 Mo. 131. " Ince v. East Boston Ferry Co., ' Audige V. Gaillard, 8 La. An. 71. 106 Mass. 149. 329 1 Thomp. Neg.] contributory negligence. a ventilator attached to the boiler. This produced an accumulation of foul air, which, on his return from his dinner, caused his death almost instantly. This act of negligence prevented a recovery of dam- ages on account of his death. ^^ The plaintiff, a farmer, fastened de- fendant's stallion with an ordinary halter in the same part of a bam with a mare and gelding belonging to plaintiff, which were similarly fastened, with no barrier between them, and the stallion broke loose and injured the gelding. It was held, in an action for damages against the owner of the stallion, that plaintiff was guilty of con- tributory negligence and could not recover. ^^ The servant of the plaintiff, in charge of his cattle, allowed them, without necessity, to go at large in the vicinity of a frozen lake, where they were accus- tomed to drink. Two of the cattle were drowned in a hole in the ice negligently cut by the defendant. The contributory negligence of the plaintiff, through his servant, prevented him from recovering damages against the defendant.^* A person went to the defendant's bathing house to bathe. After waiting for some time and watching other bathers standing about in the water, which was only to their waists, he made a dive from an elevation seventeen feet above the hard bottom. The water was then but three and one-half feet deep. Some twenty-five bathers were standing around and he must have known the depth of the water. His head struck upon the bottom, injuring him so that he died. It was held that his administrator had no right of action against the owner of the bath-house. ^^ The plaint- iff, through her son, borrowed the defendant's ram to serve her ewes- While the ram, so borrowed, was at large in the plaintiff's field, it in- jured the plaintiff by butting her. In an action for damages against the owner of the ram, it was held that the defendant was entitled to have the jury instructed that if plaintiff's negligence contributed to the accident, she could not recover.^" The plaintiff left his horse standing in a passage way from a street to a ferry while he went into a urinal. The horse took fright, ran down a passage, and into the river, the chain being up and not down, as it should have been. It was held that the plaintiff's negligence precluded his recovery from the ferry company.^'' " Curran v. Warren Chemical & " Barlow v. McDonald, 39 Hun Man. Co., 36 N. Y. 153. (N. Y.) 407. ^ Milne v. Wallter, 59 Iowa 186. " Hoboken Land &c. Co. v. Lally, " La Riviere v. Pemberton, 46 48 N. J. L. 604. The defense of con- Minn. 5; s. c. 48 N. W. Rep. 406. tributory negligence has been sus- '=Hinz V. Starin, 124 N. Y. 639; tained in the following states of fact: s. c. 46 Hun (N. Y.) 526; s. c. on where a railroad company sued for subsequent appeal, 57 Hun (N. Y.) an injury to its cars and engine in 590; s. c. 32 N. Y. St. Rep. 918; 20 consequence of lumber having fallen N. Y. Supp. 671. upon its track through the negli- 330 IN PARTICULAR STATES OP FACT. [2d. Ed. § 354. Facts Amounting to Prima Facie Evidence of Contributory Negligence to go to the Jury. — Premising that, as in the case of the question of the negligence of the defendant, the question of contrib- utory negligence is for the jury, under proper instructions from the court, where the facts are in dispute ;^^ and also for the jury where the facts are not in dispute, but where fair-minded men might draw different conclusions from them as to whether the person sus- taining the injury was negligent,^" — we come now to consider, by way of illustrating -the foregoing doctrine, some cases where the question of negligence was held to be a question of fact for the jury. A person while walking along a street in a city, heard a cry for help, and saw a man on the ground being gored by a bull, attached to him by a rope, and approached, but did not attempt to assist the man, because he was afraid of the bull, and the bull attacked and injured him. In an action for such injury, the question whether he was in the exercise of due care was for the jury.^" A woman, occupying with her husband apartments accessible only through a door opening on the sidewalk, the building being the property of defendant, stepped upon the cover of a coal hole in the sidewalk, which gave way, and she fell into the hole, and was injured. It was improper to take the case from the jury.^^ In an action to recover for damages sustained by a fall caused by a perpendicular drop of from six to nine inches from one sidewalk to another, in a public thoroughfare of a city, where no evi- dence was offered to show that there was any reasonable necessity for such difference, and there was no guard or light to call the attention of pedestrians to the inequality, — the question of the unsafe condi- tion of the sidewalk, and of negligence on the part of the city, was one of fact for the jury.^^ In an action against a municipal corporation gence of persons unloading one of " So long as a question remains its cars: New York &c. R. Co. v. whether the plaintiff has observed Atlantic Refining Co., 59 Hun (N. that degree of care and caution im- Y.) 624; s. c. 36 N. Y. St. Rep. 658; posed upon him by law, and the 13 N. Y. Supp. 466. Where the question involves the weighing and plaintiff, driving in a vehicle, mis- consideration of evidence, it must took the width of a passage, which be submitted to the jury as one of proved to be too narrow for him to fact: Chicago &c. R. Co. v. Hutch- drive through it, and was thrown inson, 120 111. 587; s. c. 9 West. Rep. from his vehicle and under its 544; 11 N. B. Rep. 855. wheels: Landa v. McDermott "Post, § 429; Nugent v. Boston (Tex.), 16 S. W. Rep. 802 (not off. &c. R. Co., 80 Me. 62; s. c. 5 N. Eng. rep.). Where a man rode along a Rep. 865; 12 Atl. Rep. 797. highway after dark, leading his ^ Linnehan v. Sampson, 126 Mass. horse by a long halter, the end of 506. which was . twisted around his -' Delory v. Canny, 144 Mass. 445 ; thumb, and the horse became fright- s. c. 4 N. Eng. Rep. 258; 11 N. E. ened by the barking of a dog, and Rep. 656. plunging and jerking crushed his ^= Tabor v. St. Paul, 36 Minn. 188; thumb.: Vital v. Tetrault, Montreal s. c. 30 N. W. Rep. 765. See post, L. Rep. 6 Super. Ct. 501. §§ 1190, 1191. 331 1 Thomp. Neg.] contributory negligence. for damages sustained by the plaintiff, a female, in falling upon a sidewalk of one of the defendant's streets upon which a quantity of earth had been deposited, it was held that whether the plaintiff was guilty of contributory negligence in trying to pass over the obstruc- tion instead of going round it into the muddy street presented a ques- tion of fact for the jury."' § 355. Other Facts Affording Prima Facie Evidence of Contribu- tory Negligence. — The plaintiff received an injury in consequence of a defect in the highway while driving a blind horse on a dark night. He was not guilty of contributory negligence as matter of law, but it was for the jury to determine the degree of darkness, and whether, if the horse had had possession of sight, the chance of the accident would have been diminished."* A fisherman set his net upon a public navi- gable water. While engaged in taking fish therefrom, a vessel ap- proached and ran upon the net, damaging it. A. had not given the vessel any warning of the existence and situation of the net. Whether A. was guilty of contributory negligence in failing to give such warning was a question for the jury."^ Where a landlord of a tene- ment house was liable for negligence in permitting a hole to exist in a stair carpet over which his tenants were compelled to pass, the fact that a tenant who was injured by catching her foot in the hole knew of its existence, and that the hall was well lighted at the time, does not show contributory negligence in her as matter of law, but merely takes the question to the jury."^ A highway thirty-two feet wide, the road-bed of which was smooth and level, was bounded upon one side by a row of large trees about twenty feet apart, outside of which, but upon private ground, a sidewalk had been made. Beyond this side- walk the ground sloped rapidly down to a mill pond, and there was no railing between the highway and the pond. A person travelling on the highway on a dark night backed his horse for a distance of eleven feet through the row of trees, across the sidewalk, and into the mill pond, where he and his horse were drowned. No one was with him, and the evidence as to how he came to do so was circumstantial. The tracks of his wagon showed that he had been driving in a regular course along the other side of the highway. The evidence was con- flicting as to whether the trees formed an efficient barrier in the ab- ^ Shook V. Cohoes, 108 N. Y. 648 ; ^ Wright v. Mulvaney, 78 Wis. 89 ; s. c. 15 N. B. Rep. 531. See also s. c. 9 L. R. A. 807; 46 N. W. Rep. Pompfrey v. Saratoga Springs, 104 1045. N. Y. 459. ^Peil v. Reinhart, 127 N. Y. 381; =■■ Brackenridge v. Fitchburg, 145 s. g. 12 L. R. A. 843; 38 N. Y. St. Mass. 160; s. c. 5 N. Eng. Rep. 171; Rep. 913; 27 N. B. Rep. 1077.- 13 N. E. Rep. 457. 332 IN PARTICULAR STATES OP PACT. [2d Ed. senee of a railing, and whether or not the night was so dark that the trees could not be seen. Whether the traveller was guilty of contrib- utory negligence was a question for the jury.^' It was held a question for the jury whether one who attempted to cross a street behind a high loaded wagon, and was run over by a team going in the opposite direc- tion, was negligent in not waiting until the loaded wagon had passed far enough to enable him to see that no other team was coming from behind it on the other side.^* § 356. Other Such Facts. — Where the traveller's wagon became en- tangled in a telegraph-wire, by reason of the wire being down so near the road that the wheels came in contact with it.^^ The fact that the plaintiff was standing on the platform of a street ear, with his hand on the railing, and while so standing, his hand was injured by the de- fendant's dray as it passed the rear of the car, has been held not con- tributory negligence as matter of law;^" nor that the plaintiff left his horse and buggy standing unhitched in the public highway, they com- ing into collision with the defendant's carriage.^^ A., knowing that his son is addicted to habits of intoxication, suffers him to take his horse ostensibly to ride to a neighbor's, about four miles distant. Instead of going there, the boy goes to a dram-shop kept by the defendant, gets drunk, and, while so intoxicated, drives the horse so that he dies. A. is entitled, under a statute, to recover damages of the proprietor of the dram-shop, and his landlord; and the question of contributory negli- gence in A., in suffering his son to take the horse out under the cir- cumstances, cuts no figure in the case.^^ Nor did the fact that the day was Sunday affect the question. ^^ The defendant had been em- ployed by the owner of a building occupied as a store, to excavate a cellar underneath it. For this purpose he had raised the building, and put it on posts. While this work was going on, a lady customer of the store was passing by, when the wind blew her hat off and into the cellar. She requested a clerk of the proprietor of the store to get it for her; and while attempting to do so, the building fell on him, '^Lutton V. Vernon, 62 Conn. 1; ^"Thomas v. Western Union Tel. s. c. 23 Atl. Rep. 1020. Co., 100 Mass. 156. ^Purtell V. Jordan, 156 Mass. 573; ™ Seigel v. Eisen, 41 Cal. 109. s. c. 31 N. E. Rep. 652. Whether it =' Park v. O'Brien, 23 Conn. 339. was contributory negligence for one "' Bertholf v. O'Reilly, 8 Hun (N. injured by being kicked by a horse Y.) 16. See Baker v. Pope, 5 N. Y. to ride on a scraper so near the S. C. (T. & C.) 102. As to the con- horse's heels as to be within reach stitutionality of "civil damage in case of his kicking, has been held laws," see Lawson's monograph on a question of fact for the jury: "Civil Damage Laws," published by Knickerbocker Ice Co. v. De Haas, the Central Law Journal. 37 111. App. 195. ^'lUd. See Nodine v. Doherty, 46 Barb. 59. 338 1 Thomp, Neg.] contributory negligence. and he was injured. It was held error to instruct the jury that, as matter of law, the clerk was not properly under the building in pursu- ance of his master's business, and that hence he was not entitled to recover. He was deemed to have been there in the right and interest of his employer, and the jury should have been told that if the injury was shown by the evidence to have been occasioned by the carelessness of the defendant or his employes in excavating, they should find for the plaintiff, unless they believed from the evidence that the plaintiff, by his own fault or negligence, materially contributed to the injury ; and that he had a right to enter the cellar for the purpose stated, using reasonable care and prudence, and not obstructing the work of the defendant."* The fact that the plaintiff is a party to a contract to do certain excavating does not prevent him from recovering dam- ages from one of the parties to the contract, who, in prosecuting the work, has negligently undermined the plaintiff's land.'^ § 357. Facts not Amounting to Evidence of Contributory Negli gence. — In an action against a water company for negligence in re- pairing its pipes, whereby water was thrown on the roof of plaintiff's building, injuring his goods therein, — it was held that the leaving of a scuttle in the roof open was not contributory negligence. The court, speaking through McKinstry, J., said : "They had the right to use their premises for any lawful purpose. If they had placed their goods in canvas tents this would not have relieved the defendant of the consequences of its- wrongful act. There was no such relation be- tween the omission to , provide means by which water would be ef- fectively excluded from their building, and the tort complained of, as =* Lamparter v. Wallbaum, 45 111. the plank: Osborne v. Detroit, 32 444. Fed. Rep. 36. Whether a person re- '^ Gardner v. Heartt, 1 Denio (N. ceiving a physical injury was guilty Y.) 466. Under the conditions of of contributory negligence in failing, evidence presented in each particu- for some time thereafter, to send lar case, it has been held a question for a surgeon, this being evidence of for the jury whether running along contributory negligence to* be con- the sidewalk in the dark is negli- sidered by the jury, but not conclu- gence: Shenandoah v. Brdman (Pa. sive evidence of it: Osborne v. De- St.), 12 Atl. Rep. 814; 21 W. N. C. troit, 32 Fed. Rep. 36. Whether the 553 (not off. rep.). Whether the tenant of a floor of the defendant's plaintiff, who was familiar with a building was guilty of contributory county road, was guilty of contrib- negligence in falling through an un- utory negligence in falling into an guarded hatchway in the night-time, unguarded excavation therein in the the existence of which was known night-time : Millcreek Twp. v. Perry to him and which he had reported (Pa. St.), 12 Atl. Rep. 149; 20 W. to the landlord as being dangerous N. C. 359 (not off. rep.). Whether without railings, which had been a person was guilty of contributory taken away, — the landlord having negligence who walked along a side- refused to replace them: Atkinson walk which was notoriously rotten, v. Abraham, 10 N. Y. St. Rep. 342; so much so that, if he had looked, s. c. 45 Hun (N. Y.) 238. he could have seen the earth beneath 334 IN PARTICULAR STATES OF PACT. [2d Ed. would make the plaintiffs in any degree participants in the conduct which caused the damage. As has been said, 'the right of a man to make free use of his property is not to be curtailed by the fear that his neighbor will make a negligent use of his.^ "^' A saloon-keeper is not to be presumed to know that sewer-gas, when mixed in certain proportions with air, will explode; and, therefore, is not, as matter of law, negligent in not making known the fact that the gas is escaping into his house. ^^ The plaintiffs owned a toll bridge, under a charter which provided that they should maintain in good repair a suitable draw at some convenient place, sufficient to admit the free and easy passage of vessels. The defendants' vessel, in passing through, was, by their negligence, allowed to run against and knock off the corner of one of the piers supporting the bridge. It was held that the plaint- iffs were not to be regarded as contributing to the injury by reason of the fact, which was found, that, if the pier had been protected by piles, the damage would have been lessened or prevented.'^ Want of due care can not, as matter of law, be imputed to a woman employed in a printing establishment as a type-setter whose duty it was to carry "galleys" of type from the fourth to the fifth story, and who was injured by the falling of a shaft hung from the stairway which she had to use, from the fact that another employe had called from the top of the stairway to keep off the shaft, in the absence of evidence that she heard the warning or had reason to apprehend that she was in a position of danger.^" '^ Yik Hon v. Spring Valley Water that a hatchway was used for lower- Works, 65 Cal. 619; citing 1 Thomp. ing things, and that a man had Neg., 1st ed., p. 168. fallen down it a short time before, ^'Kibele v. Philadelphia, 105 Pa. was held not to show contributory St. 41. negligence on the plaintiff's part in "Toll Bridge Co. v. Langrell, 47 standing Under it: Post v. Stock- Conn. 228. well, 44 Hun (N. Y.) 29. A carpenter '"Poor V. Sears, 154 Mass. 539; who, while engaged upon a roof, s. c. 26 Am. St. Rep. 272; 28 N. E. was hurt by the falling of the roof Rep. 1046. It has been held that a in consequence of the fall of a de- plaintiff suing a railway company fective wall upon which it rested, for dumping carcasses of dead ani- was not guilty of contributory negli- mals near his residence and a spring gence, as he was not bound to in- of water, poisoning it and rendering spect the wall: Giles v; Diamond it unfit for use, and filling the air State Iron Co., 7 Houst. (Del.) 1; s. with offensive and noxious odors, c. 6 Cent. Rep. 867. A night watch- is not guilty of contributory negli- man, injured by falling into an open gence because he did not skin and unguarded area adjoining an alley, dissect the carcasses so as to hasten while passing along the alley in dis- their decomposition, especially charge of his duty, was not deemed where he would have been compelled guilty of contributory negligence to commit a trespass in order to do because of his knowledge of the so: Gulf &c. R. Co. v. Reed, 80 Tex. excavation: Bond v. Smith, 44 Hun 362; s. c. 22 S. W. Rep. 283. The (N. Y.) 219. mere fact that the plaintiff knew 335 1 Thomp. Neg.] contributory negligence. § 358. Contributory Negligence in Cases of Collisions of Vessels. — The foregoing principles are constantly applied in actions in the courts of common law for damages resulting from the collision of vessels on navigable waters, although a modified rule obtains in the courts of admiralty.*" A navigable water is a public highway; and collisions upon such waters bring into discussion the same questions which arise in cases of collisions of vehicles on the public roads, — a matter which is considered in a subsequent volume. The rule that the negligence which will warrant or bar a recovery of damages, ac- cordingly as it is negligence of the plaintiff or of the defendant, must be a proximate cause of the accident,*^ is here of frequent application. Thus, A. runs his flat-boat at night, or ties it up in the wrong place. This will not justify a steamboat in running into it, any more than a stage-coach would be justified in running over a man seen lying asleep in the road. In all such cases, if, after discovering the exposed situ- ation of the plaintiff's craft, those in control of the defendant's vessel could have avoided running into it by the exercise of ordinary care, they are bound to do it.^^ A.'s vessel grounds in the stream, and B.'s vessel runs into it. The fact that A. has got his vessel into this pre- dicament by overloading or negligent navigation will not prevent him from recovering damages of B., if B. or his servants could have avoided the injury to A.'s vessel by the exercise of ordinary care. Cases of this kind call for the application of the rule that, although there may be negligence on the part of the plaintiff, yet he may recover unless he might by the exercise of ordinary care and skill avoid the consequences of the defendant's negligence or misconduct.*^ So, if A. ties his flat-boat to the shore, and B. propels his steamboat past it with such speed, and so closely to it, that the waves sink it, it will be no answer to an action by A. for the damages that if the flat-boat had been more securely tied to the shore it would not have sunk.** So, where the slave of A. tied his skiff to a snag in the middle of the channel of a navigable bay, and, while so exposed, it was run upon by a passing schooner, and the slave drowned, A. might recover damages of the owner of the schooner; for the negligence of the slave was but a remote cause of the injury. It was still the duty of those in charge of the schooner to avoid the injury, if they could do so by the exercise of ordinary care.*° So, if A., by negligence, has brought his boat into " Where both vessels are in fault, " Ante, § 216. courts of common law do not appor- " Owners of Steamboat v. Mc- tlon the damages between them, as Craw, 26 Ala. 189, 203. do the English courts of admiralty: "Cummins v. Presley, 4 Harr. Broadwell v. Swigert, 7 B. Mon. 39; (Del.) 315. Halderman v. Beckwith, 4 McLean, " Wright v. Brown, 4 Ind. 95. 286, and other cases cited below. " Foster v. Holly, 38 Ala. 76. See 336 IN PARTICULAR STATES OF FACT. [2d Ed collision with B.'s coal-barge, and sunk it, it will be no answer to ai, action for the damages that B. had chosen to navigate the river with a coal-barge not so strong and safe as snch barges usually are. A. must pay damages for the negligence which caused the collision, although B.'s barge, if stronger, might have stood the shoek.*° But if the plaintiff's men put his boat in such a place that persons using ordi- nary care would run against it, he can not recover. Nor will the de- fendant be liable if the accident could have been avoided but for the negligence of the plaintiff's men in not being on his barge at a time when it was lying in a dangerous place. The only case in which the defendant is answerable is, where the accident arose from the negli- gence or want of skill of his own men.*' § 359. In Cases of Collisions of Vessels, Continued. — On the other hand, if A.'s vessel has sunk, by inevitable misfortune, in a navigable stream, he is under no obligation to others who may navigate the stream to buoy it up in order to prevent its endangering other ves- sels.*' In these actions, the rule of the English courts of common law is that neither party can recover where both are in the wrong; they must both remain in statu quo.*^ But as ordinary care is all that the law exacts of the plaintiff, the rule is, not that he can not recover if he could have prevented the collision, but that he can not recover if his ship was in any degree in fault in not endeavoring to prevent it.'" These cases, like those of collisions on the highway, also afford apt illustrations of the maxim that the plaintiff is not to have blame im- puted to him for not anticipating the fault of the defendant and en- deavoring to guard against it. Thus, if the defendant has the wind, he should give way, and the plaintiff has a right to expect that he will do it, and is not negligent in not acting on a contrary supposition."^ But the presumption of fault arising from running into a vessel at anchor may be rebutted by showing that the moving vessel exercised all reasonable care on her part, and that the collision was an inevitable accident."^ But an inscrutable cause of collision will not be assumed because the fault of navigation does not appear by the proof, if the also Dowell v. Steam Nav. Co., 5 El. M. 21; Luxford v. Large, 5 Car. & & Bl. 195, which is an excellent case P. 421. on the doctrine of contributory neg- " Vennall v. Garner, 1 Cromp. & ligence. M. 21. Circumstances where the " Inman v. Funk, 7 B. Men. 538. fact that the respondent vessel is " Lack v. Seward, 4 Car. & P. 106 ; allowed to come into collision with Vanderplank v. Miller, 1 Mood. & M. that of the libellant will afford 169. prima facie evidence of negligence: "Brown v. Mallett, 5 C. B. 599. The Britannia, 42 Fed. Rep. 67. "Compare ante, § 286. '"The Worthington, 19 Fed. Rep. "Vennall v. Garner, 1 Cromp. & 836. VOT..1 TWOMP. XKG— 22 OOi 1 Thomp. Neg.] contributory negligence. physical conditions be such that they fairly repel the suggestion of in" evitable accident and indicate some unknown bad management as the real cause of the injury.^* § 360. In Case of loss of Goods of Guest at Public Inn. — It is now settled that gross negligence by the guest of an innkeeper need not be shown to prevent a recovery of damages when suing the innkeeper for a loss of goods sustained by such guest while stopping at the inn; a want of ordinary care, contributing to the loss, is sufficient. ^° § 361. In Actions for Malpractice. — A patient can not recover damages for injuries consequent on unsuccessful or negligent treat- ment by his physician, if his own negligence directly contributed to the result.'** And if it be impossible to separate the injury occasioned by the neglect of the patient from that occasioned by the neglect of the physician, the patient can not recover. If, however, they can be separated, the patient may recover damages for such injuries as he can show were produced solely by a want of ordinary care or skill on the part of the physician. The iirst proposition states the ordinary rule as to the negligence of the plaintiff; the second states the proper lim- itation of the rule. "It is an important limitation, for a physician may be called to prescribe for cases which originated in the careless- ness of the patient ; and though such carelessness would remotely con- tribute to the injury sued for, it would not relieve the physician from liability for liis distinct negligence, and the separate injury occa- sioned thereby. The patient may also, while he is under treatment, injure himself by his own carelessness; yet he may recover of the physician if he carelessly or unskillfully treats him afterwards, and thus does him a distinct injury. In such cases, the plaintiff's fault does not directly contribute to produce the injury sued for."^^ If the patient's neglect to obey the reasonable instructions of his physician or surgeon contributes to the injury for which damages are sought, he can not recover.^* "Xothing can be more clear," said Woodward, J., "than that it is the duty of the patient to cooperate with his profes- sional adviser, and to conform to the necessary prescriptions; but if he will not, or, under the pressure of pain, can not, his neglect is his own wrong or misfortune, for which he has no right to hold his sur- geon responsible. Ko man may take advantage of his own wrong, or " The Charles Hebbard, 46 Fed. 286. See Bogle v. Wlnslow, 5 Phila. Rep. 137. 136. ^=Jalie V. Cardinal, 35 Wis. 118, "Per Chapman, C. J., in Hibbard 129. Compare Calye's Case, 8 Co. v. Thompson, 109 Mass. 286. 63; 1 Smith's Ld. Cas. 47. =»Geiselman v. Scott, 25 Ohio St. ^ Hibbard v. Thompson, 109 Mass. 86. 338 IN PARTICULAR STATES OF FACT. [2d Ed. charge his misfortunes to the account of another."' ° If the patient is insane, and hence not capable of cooperating with his physician, of course contributory negligence is not to be imputed to him. On the other hand, it is the duty of the physician to take into Account his helplessness; and he would justly be chargeable with a want of ordi- nary professional care if he expected of a patient a degree of care or cooperation of which by reason of his disease he was incapable.*" The fact that the patient, or those having him in charge, refused to permit the physician, after he had inflicted an injury upon the patient by his negligence or want of skill, to make an experiment for the pur- pose of repairing the injury, is not to be imputed to the patient as negligence, unless they were reasonably assured that the attempt would be successful.*^ " McCandless v. McWha, 22 Pa. St. v. New York Hospital, 3 Abb. N. C. 261; Haire v. Reese, 7 Phila. 138. 229. ""See the judgment of Mr. Com- «' Cbamberlin v. Morgan, 68 Pa. missioner Ordronaux In Tbe People St. 168. 339 1 Thomp. Neg.J contributory negligence. CHAPTER XIII. RULES OP PROCEDURE WITH REFERENCE TO CONTRIBUTORY NEGLIGENCE. Art. I. Eules of Pleading. SuBDiv. I. Rules of Pleading, how Affected by Considerations Relating to the Burden of Proof, §§ 364-371. SuBDiv. II. Manner of Pleading Contributory Negligence, §§ 373-392. Art. II. Eules of Evidence. SuBDiv. I. Presumptions as to Contributory Negligence, §§ 395-404. 'SuBDiv. II. Other Questions of Evidence and Burden of Proof, §§ 406-i21. Art. III. When a Question for the Court, When for the Jury. SuBDiv. I. Principles, Doctrines and Theories, §§ 434-438. SuBDiv. II. Application of these Doctrines in Various Condi- tions of Fact, §§ 441-454. Art. IV. Instructing the Jury as to Contributory Negligence. SuBDiv. I. Principles which Govern the Giving and Refusing of Instructions on this Issue, §§ 457-478. SuBDiv. II. Instructions on Various Questions of Law and Fact, §§ 481-494. Article I. Eules of Pleading. Subdivision I. Rules of Pleading, how Affected by Considerations Relating to the Burden of Proof. Section Section 36 1. Burden of proof to show con- negligence, although not trlbutory negligence. pleaded. 365. Jurisdictions in which burden 370. Freedom from contributory of proving freedom from con- negligence must be alleged tributory negligence is on in plaintiff's pleading, in plaintiff. those jurisdictions where 366. Jurisdictions in which contrib- plaintiff sustains burden of utory negligence is an affirm- proof. ative defense to be averred and proved. 371. Freedom from contributory 367. Confusing ideas upon this ques- negligence need not be al- tion. leged by the plaintiff in those 368. Burden of proof as to assump- jurisdictions where the negli- tion of risks by employes. gence is an affirmative de- 369. Plaintiff nonsuited if his evi- fense. dence shows contributory 540 RULES OP PROCKDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. § 364. Burden of Proof to Show Contributory Negligence.^ — A general rule which governs in the production of evidence is, that the burden of proof is upon the party who maintains the affirmative of the issue. In other words, he who asserts a fact necessary to be shown to sustain an action or bar a recovery, must prove its existence.^ In applying this rule, however, in actions where it is sought to recover for an injury on the ground of the negligence of another, the authorities are not in accord. Generally, contributory negligence on the part of the plaintifE will bar a recovery. It would seem, therefore, to be a matter of defense, and that it would devolve upon the defendant to prove it. Yet it is held in several of the States that in order to make out a prima facie case the plaintiff must not only prove negligence on the part of the defendant, but he must also prove that he was in the exercise of due care in respect to the occurrence from which the injury arose. § 365. Jurisdictions in which Burden of Proving Freedom from Contributory Negligence is on Plaintiff.'' — In the following jurisdic-^ tions, in order to make it a prima facie case, the burden rests upon the plaintiff of proving, and in some of them of alleging and proving, that the plaintifE or the person killed or injured, or, in some juris- dictions, in case the person killed or injured was a young child, that its parent, guardian or custodian, — was not guilty of negligence con- tributing to the injury: — Connecticut/ Georgia/ Idaho/ Illinois/ a This section is cited in § 471. III. 385; s. c. 43 N. E. Rep. 357; '1 Greenl. on Ev., § 74; Johnson v. Werk v. Illinois Steel Co., 54 111. Hudson River R. Co., 5 Duer (N. App. 302, aff'd 154 111. 427; 40 N. Y.) 21, 28. E. 442; Aurora Branch R. Co. v. bThls section is cited in § 378. Grimes, 13 111. 585; Dyer v. Talcott, "Beers v. Housatonic R. Co., 19 16 111. 300; Galena &c. R. Co. v. Pay, Conn. 566; Park v. O'Brien, 23 Conn. 16 111. 558; Chicago v. Major, 18 111. 339; Fox v. Glastenbury, 29 Conn. 349; Galena &c. R. Co. v. Jacobs, 20 204. In an action by a physician 111. 478; Chicago &c. R. Co. v. Haz- to recover for services, the burden zard, 26 111. 373; Chicago &c. R. Co. of proving plaintiff's lack of ordi- v. Gregory, 58 111. 272; Kepperly v. nary care and skill is upon defend- Ramsden, 83 111. 354; Peoria v. ant: Styles v. Tyler, 64 Conn. 432; Adams, 72 111. App. 662; Jorgenson s. c. 30 Atl. Rep. 165. v. Johnson Chair Co., 169 111. 429; ' In this State the absurd doctrine s. c. 48 N. B. Rep. 822, aff'g 67 111. obtains that the burden is on one who App. 80; Illinois &c. R. Co. v. Trow- seeks damages against a railroad bridge, 31 111. App. 190; Schneider company for the death of another, v. North Chicago Street R. Co., 80 to prove that he was without fault 111. App. 306; s. c. 4 Chic. L. J. contributing to his death, or that Weekly 114; Cleveland &c. R. Co. it was caused by negligence of co-em- v. Butler, 55 111. App. 594; Chicago ployfis: Augusta &c. R. Co. v. Mc- &c. R. Co. v. Barnett, 56 111. App. Dade, 105 Ga. 134; s. c. 12 Am. & 384; West Chicago Street R. Co. v. Eng. Rail. Cas. (N. S.) 548; 31 S. Boeker, 70 111. App. 67; Chicago &c. E. Rep. 420. R. Co. v. Stewart, 71 111. App. 647. •Spokane &c. R. Co. v. Holt (Id.); But if the facts and circumstances 40 Pac. Rep. 56 (not off. rep.). attending the injury show negli- ° Chicago &c. R. Co. v. Levy, 160 gence in the defendant and do not 341 1 Thomp. Neg.j contributory negligence. Indiana,^ Iowa,'' Louisiana,'' Maine,^ Massachusetts,^" Michi- Bhow any contributory negligence in the plaintiff, a prima facie case is made out: North Chicago &c. R. Co. V. Conway, 76 111. App. 621. "By Ind. Act 1899, p. 58, hurden of pleading and proving contributory negligence is on defendant. The following cases, decided before the statute was enacted, support the rule laid down in the text: Lamport v. Lake Shore &c. R. Co., 142 Ind. 269; s. c. 41 N. E. Rep. 586; Cincinnati &c. R. Co. v. Grames, 136 Ind. 39; s. c. 34 N. E. Rep. 714; Kellar v. Gaskill, 9 Ind. App. 670; s. c. 36 N. E. Rep. 303; Bloomington V. Rogers, 9 Ind. App. 230; s. c. 36 N. E. Rep. 439; Lower v. Pranks, 115 Ind. 334; s. c. 17 N. E. Rep. 630; 15 West. Rep. 315; Cincinnati &c. R. Co. V. Stanley, 4 Ind. App. 364; s. e. 30 N. E. Rep. 1103; Stevens v. Lafay- ette &c. Co., 99 Ind. 392; Cincinnati &c. R. Co. V. Butler, 103 Ind. 31; In- diana &c. R. Co. V. Greene, 106 Ind. 279; s. c. 55 Am. Rep. 736; Todd v. Banner, 17 Ind. App. 368; s. c. 46 N. E. Rep. 829; Young v. Citizens' Street R. Co., 148 Ind. 54; s. c. 44 N. E. Rep. 927; rehearing denied in 47 N. E. Rep. 142; Wabash R. Co. v. Miller, 18 Ind. App. 549; s. c. 48 N. E. Rep. 663; Baltimore &c. R. Co. V. Young, 146 Ind. 374; s. c. 45 N. E. Rep. 479; 6 Am. & Eng. Rail. Cas. (N. S.) 349; Huntingburg v. First, 15 Ind. App. 552; 43 N. E. Rep. 17; Hartzell v. Louisville &c. R. Co., 15 Ind. App. 417; s. c. 44 N. E. Rep. 215; Salem v. Walker, 16 Ind. App. 687; s. c. 46 N. E. Rep. 90; Sirk v. Marion Street R. Co., 11 Ind. App. 680; s. c. 39 N. E. Rep. 421. Burden on defendant to show aggravation of plaintiff's damages by improper treatment: Citizens' Street R. Co. v. Hobbs, 15 Ind. App. 610; s. c. 43 N. E. Rep. 479; rehear- ing denied in 44 N. E. Rep. 377. 'Whitesell v. Hill, 66 N. W. Rep. 894; s. c. aff'd on rehearing in 101 Iowa 629; s. c. 37 L. R. A. 830; 70 N. W. Rep. 750 (under a statute in ac- tions for malpractice) ; Rusch v. Davenport, 6 Iowa 443; Reynolds v. Hindman, 32 Iowa 146, 148; Plaster V. Illinois &c. R. Co., 35 Iowa 449; Carlin v. Chicago &c. R. Co., 37 Iowa 316; Muldowney v. Illinois &c. R. Co., 39 Iowa 615; s. c. 36 Iowa 462; 32 Iowa 176; Patterson v. Bur- lington &c. R. Co., 38 Iowa 279; Way v. Illinois &c. R. Co., 40 Iowa 342 341; Gamble v. MuUin, 74 Iowa 99; 8. c. 36 N. W. Rep. 909. Even in an action against a common carrier of passengers to recover for a personal injury, it will not be presumed that the passenger was acting with ordi- nary care at the time of the injury: Bonce v. Dubuque St. R. Co., 53 Iowa 278. ' "When the action of both parties must have concurred to produce the injury, it devolves upon the plaintiff to show that he was not himself guilty of negligence:" Clements v. Louisiana Electric Light Co., 44 La. An. 692, 695; s. c. 16 L. R. A. 43; 11 South. Rep. 51; Dickman v. Mor- gan's &c. R. Co., 40 La. An. 787. Compare Moore v. Shreveport, 3 La. An. 645. "Gleason v. Bremen, 50 Me. 222, 224; Buzzell v. Laconia Man. Co., 48 Me. 113; Perkins v. Eastern &c. R. Co., 29 Me. 307; Merrill v. Hamp- den, 26 Me. 234; Kennard v. Burton, 25 Me. 39, 49; State v. Maine &c. R. Co., 77 Me. 538; Cunningham v. Bath Iron Works, 92 Me. 501; s. c. 43 Atl. Rep. 106 ; Benson v. Titcomb, 72 Me. 31; Mosher v. Smithfleld, 84 Me. 334; s. c. 24 Atl. Rep. 876; Gal- lagher V. Proctor, 84 Me. 41; s. c. 24 Atl. Rep. 459. '"Tyndale v. Old Colony R. Co., 156 Mass. 503; s. c. 31 N. E. Rep. 655; Fuller v. Boston &c. R. Co., 133 Mass. 491; Wheelwright v. Boston &c. R. Co., 135 Mass. 225. The first case in Massachusetts which clearly decides that the burden of proof is upon the plaintiff to show the ab- sence of contributory negligence on his part is Lane v. Crombie, 12 Pick. (Mass.) 177. The court treats the question as settled, and cites as authority Butterfleld v. Forrester, 11 East 61; Harlow v. Humiston, 6 Cow. 191; Smith v. Smith, 2 Pick. (Mass.) 621. These cases, however, go notfurther than to assert the doc- trine that a plaintiff can not recover if his evidence shows he was guilty of contributory negligence. John- son V. Hudson River R. Co., 5 Duer (N. Y.) 21, 25. The cases in Massa- chusetts follow Lane v. Crombie, supra; Adams v. Carlisle, 21 Pick. (Mass.) 146; Bigelow v. Rutland, 4 Cush. (Mass.) 247; Bosworth v. Swansey, 10 Mete. 363, 365; Parker V. Adams, 12 Mete. (Mass.) 415, 417; Lucas V. New Bedford &c. R. Co., 6 Gray (Mass.) 64; Robinson v. Fitch- burg &c. R. Co., 7 Gray (Mass.) 92; RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. ^an," New YorJc/^ Tennessee,^^ Texas,^* and Vermont.^^ Callahan v. Bean, 9 Allen (Mass.) 401; Hickey v. Boston &c. R. Co., 14 Allen (Mass.) 429, 431; Gaynor V. Old Colony R. Co., 100 Mass. 208; Murphy v. Deane, 101 Mass. 455; Allyn V. Boston &c. R. Co., 105 Mass. 77; Lane v. Atlantic Works, 107 Mass. 104. It is not necessary for the plaintiff to aver due care on his part in order to introduce proof of it. May v. Princeton, 11 Mete. (Mass.) 442. In later cases it is held that the proof of due care on the part of the plaintiff need not be direct, but the inference of such care may be drawn from the absence of all appearance of fault, either posi- tive or negative, on his part, in the circumstances under which the in- jury was received. Mayo v. Boston &c. R. Co., 104 Mass. 137; Prentiss V. Boston, 112 Mass. 43; Hinckley v. Cape Cod R. Co., 120 Mass. 257, 262. In Massachusetts, the above rule has been so far changed by statute that the burden is upon a railroad com- pany in an action under Mass. Pub. Stat. § 213, to recover damages for the negligent killing of plaintiff's intestate, to show that the latter was guilty of gross negligence, and that such negligence contributed to the injury; and the plaintiff is not bound to negative such negligence: Walsh v. Boston &c. R. Co., 171 Mass. 52; s. c. 50 N. B. Rep. 453. " Detroit &c. R. Co. v. Van Stein- burg, 17 Mich. 99, 119; Mynning v. Detroit &o. R. Co., 67 Mich. 677; s. c. 12 West. Rep. 427; 35 N. W. Rep. 811; Gugenheim v. Lake Shore &c. R. Co., 66 Mich. 150; s. c. 9 West. Rep. 903; 33 N. W. Rep. 161. '^ Whalen v. Citizens' Gaslight Co., 151 N. Y. 70; s. c. 45 N. E. Rep. 363; Hart V. Hudson River Bridge Co., 84 N. Y. 56; Rodrian v. New York &c. R. Co., 125 N. Y. 526; s. c. 26 N. E. Rep. 741; 35 N. Y. St. Rep. 814; Mulligan v. New York &c. R. Co., 58 Hun (N. Y.) 602; s. c. 33 N. Y. St. Rep. 534; 11 N. Y. Supp. 452; McDermott v. Third Avenue R. Co., 44 Hun (N. Y.) 107; Hale v. Smith, 78 N. Y. 480; Lee v. Troy Citizens' Gaslight Co., 98 N. Y. 115, 119; Winterfield v. Second Ave. R. Co., 66 Hun (N. Y.) 627; s. c. 49 N. Y. St. Rep. 435; 20 N. Y. Supp. 801; Delaware &c. R. Co., 54 Hun (N. Y.) 454; 28 N. Y. St. Rep. 132; 7 N. Y. Supp. 709 ; Johnson v. Brook- lyn Heights R. Co., 34 App. Div. 271; s. c. 54 N. Y. Supp. 547; Warner v. New York &c. R. Co., 44 N. Y. 465 (reversing s. c. 45 Barb. (N. Y.) 299); Besiegel v. New York &c. R. Co., 14 Abb. Pr. (N. S.) (N. Y.) 29; Curran v. Warren &c. Man. Co., 36 N. Y. 153; Suydam v. Grand Street &c. R. Co., 41 Barb. (N. Y.) 375; De Benedetti v. Mauchin, 1 Hilt. (N. Y.) 213; Burke v. Broadway &c. R. Co., 34 How. Pr. (N. Y.) 239; Hol- brook V. Utica &c. R. Co., 12 N. Y. 236; s. c. 16 Barb. (N. Y.) 113; Spen- cer v. Utica &c. R. Co., 5 Barb. (N. Y.) 337; Ryan v. Hudson &c. R. Co., 1 Jones & Sp. (N. Y.) 137; Gillespie V. Newburgh, 54 N. Y. 468, 471. But see Johnson v. Hudson River R. Co., 20 N. Y. 65; s. c. 6 Duer (N. Y.) 633; 5 Duer (N. Y.) 21; Robinson v. New York &c. R. Co., 65 Barb. 146; Hack- ford V. New York &c. R. Co., 6 Lans. (N. Y.) 381; s. c. 43 How. Pr. (N. Y.) 222; Squire v. Central Park &c. R. Co., 4 Jones & Sp. (N. Y.) 436, and Button v. Hudson River R. Co., 18 N. Y. 248; Sayer v. King, 21 App. Div. 624; s. c. 47 N. Y. Supp. 420; Kuhnen v. Union R. Co., 10 App. Div. 195; s. c. 41 N. Y. Supp. 774; Tocci V. Powell, 9 App. Div. 283; s. c. 41 N. Y. Supp. 511; Fejdowski v. Delaware & H. Canal Co., 12 App. Div. 589; s. c. 43 N. Y. Supp. 84; Schafer v. New York, 12 App. Div. 384; s. c. 42 N. Y. Supp. 744. In this State the burden of proving that plaintiff by neglect inflamed Ms damages is upon defendant: Colrick V. Swinburne, 105 N. Y. 503; s. c. 12 N. E. Rep. 427. " Bamberger v. Citizens' Street R. Co., 95Tenn. 18; s. c. 28 L. R. A. 486; 31 S. W. Rep. 163; Stewart v. Nash- ville, 96 Tenn. 50; s. c. 33 S. W. Rep. 613. "Texas &c. R. Co. v. Crowder, 76 Tex. 499; s. c. 13 S. W. Rep. 381. Compare Dallas &c. R. Co. v. Spiker, 61 Tex. 427; s. c. 48 Am. Rep. 297, and Walker v. Herron, 22 Tex. 55, 61. And see the Texas cases cited to the contrary rule in the next sec- tion. ">Bovee v. Danville, 53 Vt. 183. Compare the following earlier deci- sions: Lester v. Pittsford, 7 Vt. 158; Barber v. Essex, 27 Vt. 62; Hyde v. Jamaica, 27 Vt. 443; Hill v. New Haven, 37 Vt. 501; Walker v. West- field, 39 Vt. 246. 343 1 Thomp. Neg.J contributory negligence. § 366. Jurisdictions in which Contributory Negligence is an Af- firmative Defense to be Averred and Proved.^ — On the other hand, in by far the greater number of American jurisdictions the sounder and Juster rule prevails that the negligence of a person killed or injured, contributing to the death or injury, is matter of defense which the defendant must aver and prove. This is the rule in the courts of the United States, including the territories and the District of Colum- bia,^"' in Alabama/'' in Arizona/^ in Arkansas,^" in California/'' in a This section is cited in §§ 369, 370, 387, 433, 462. "Union &c. R. Co. v. O'Brien, 161 U. S. 451; s. c. 40 L. ed. 766; 16 Sup. Ct. Rep. 618; Railroad Company v. Gladmon, 15 Wall. (U. S.) 401; In- dianapolis &c. R. Co. V. Horst, 93 U. S. 291; Inland &c. Co. v. Tolson, 139 U. S. 551; s. c. 35 L. ed. 270; 11 Sup. Ct. Rep. 653; 19 Wash. L. Rep. 438; Washington &c. R. Co. v. Tobriner, 147 U. S. 571; s. c. 21 Wash. L. Rep. 231; 37 L. ed. 284; 13 Sup. Ct. Rep. 557 ; Griffith v. Baltimore &c. R. Co., 44 Fed. Rep. 574; Mackey v. Balti- more &c. R. Co., 19 D. C. 282; s. c. 18 Wash. L. Rep. 767; Harmon v. Washington &c. R. Co., 18 D. C. 255 (7 Mackey); s. c. 17 Wash. L. Rep. 426 ; Northern Pac. R. Co. v. O'Brien, 1 Wash. 599; s. c. 21 Pac. Rep. 32; Chesapeake &c. R. Co. v. Steel, 84 Fed. Rep. 93; s. c. 54 U. S. App. 550; 29 C. C. A. 81; Fitchburg R. Co. v. Nichols, 50 U. S. App. 297; s. c. 85 Fed. Rep. 945; 29 C. C. A. 500; Berry V. Lake Brie &c. R. Co., 70 Fed. Rep. 193; Texas &c. R. Co. v. Nolan, 62 Fed. Rep. 552; 11 C. C. A. 202; Hayes v. Northern &c. R. Co., 74 Fed. Rep. 279; s. c. 46 U. S. App. 41; 20 C. C. A. 52; Crane Elevator Co. v. Lippert, 63 Fed. Rep. 942; s. c. 11 C. C. A. 521; Sanders v. Reister, 1 Dak. Ter. 151; The Frank & Willie, 45 Fed. Rep. 494 (in admiralty) ; Mares v. North- ern &c. R. Co., 3 Dak. 336; Gram v. Northern &c. R. Co., 1 N. D. 252; s. c. 46 N. W. Rep. 972; 45 Am. & Eng. R. Cas. 544; Hines v. George- town Gas Co., 3 D. C. App. 369 ; s. c. 22 Wash. L. Rep. 365; Conroy v. Oregon Construction Co., 23 Fed. Rep. 71; Dillon v. Union Pacific R. Co., 3 Dill. (U. S.) 319, 325. Accord- ing to earlier conceptions, the plain- tiff must show that he used ordinary care: Beardsley v. Swan, 4 McLean (U. S.) 333; Hull v. Richmond, 2 Woodb. & M. 337, 345. An aberra- tion from the general Federal doc- 344 trine is found in a decision to the effect that the burden is on an em- ploye suing for the alleged negli- gence of his employer, to show that the injury received was caused by the master's negligence, to which the plaintiff's negligence did not contrib- ute: Texas &c. R. Co. v. Barrett, 166 U. S. 617; s. c. 41 L. ed. 1136; 17 Sup. Ct. Rep. 707. It has been held in a Federal court that the rule that the burden of proof of contributory negligence is upon the defendant, is not varied by the factthattheplaint- iff alleges that he was in the exer- cise of due care, nor by any other state of the pleading: Fitchburg R. Co. V. Nichols, 50 U. S. App. 297; s. c. 85 Fed. Rep. 945; 29 C. C. A. 500. " McDonald v. Montgomery Street R. Co., 110 Ala. 161; s. c. 20 So. Rep. 317; Smoot v. Wetumpka, 24 Ala. 112; Montgomery &c. R. Co. v. Cham- bers, 79 Ala. 338; Thompson v. Dun- can, 76 Ala. 334; Louisville &c. R. Co. V. Hall, 87 Ala. 708; s. c. 4 L. R. A. 710; 6 South. Rep. 277; Bromley V. Birmingham M. R. Co., 95 Ala. 397; s. c. 11 South. Rep. 341; O'Brien v. Tatum, 84 Ala. 186; s. c. 4 South. Rep. 158; Georgia &c. R. Co. V. Davis, 92 Ala. 300; s. c. 9 South. Rep. 252; Montgomery Gas Light Co. V. Montgomery &c. Co., 86 Ala. 372; s. c. 5 South. Rep. 735; West V. Thomas, 97 Ala. 622; s. c. 11 South. Rep. 768; Western Ry. of Ala. V. Williamson, 114 Ala. 131; s. c. 21 South. Rep. 827. Compare Louisville &c. R. Co. v. Mothershed, 110 Ala. 143; s. c. 20 South. Rep. 67. " Lopez V. Central Arizona Mining Co., 1 Ariz. 464. '» Texas &c. R. Co. v. Orr, 46 Ark. 182; Little Rock &c. R. Co. v. At- kins, 46 Ark. 423. ^°Daly V. Hinz, 113 Cal. 366; s. c. 45 Pac. Rep. 693; McDougall v. Cen- tral R. Co., 63 Cal. 431; Gay v. Win- ter, 34 Cal. 153, 164; Robinson v. Western Pacific R. Co., 48 Cal. 409, 42-6; McQuilken v. Central Pacific RULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. Colorado/^ in Delaware/^ in Florida^''' in Georgia/* in Illi- nois/^ in Indiana/^^ in Kansas/^ in Kentucky/'' in Louisiana/^ in Maryland/^ in Minnesota/" in Mississippi/^ in Missouri/^ in J/ora- R. Co., 50 Cal. 7; House v. Myer, 100 Cal. 592; s. c. 35 Pac. Rep. 308. A complaint for personal injuries from the Hte of a dog need not negative contributory negligence on the part of the plaintiff: Boyd v. Oddous, 97 Cal. 510; s. c. 32 Pac. Rep. 569. « Platte &c. M. Co. v. Dowell, 17 Colo. 376; s. c. 30 Pac. Rep. 68; Den- ver &c. R. Co. V. Ryan, 17 Colo. 98; s. c. 28 Pac. Rep. 79. ^ Wllkins V. Wilmington, 2 Marv. (Del.) 132; s. c. 42 Atl. Rep. 418. ^ In this State contributory negli- gence of the plaintiff is a matter of defense which the defendant must set up, unless a presumption of con- tributory negligence is plainly infer- able' from the plaintiff's own evi- dence; and it need not be denied in the plaintiff's declaration: Orlando v. Heard, 29 J Fort Wayne &c. R. Co. v. Grubb, 132 Ind. 13; s. c. 31 N. B. Rep. 460; Sherfey v. Evansville &c. R. Co., 121 Ind. 427; s. c. 23 N. E. Rep. 273; Thompson v. Flint &c. R. Co., 57 Mich. 300; s. c. 23 N. W. Rep. 820; Evansville &c. R. Co. v. Weiltle, 6 Ind. App. 340; s. c. 33 N. E. Rep. 639; W»hl v. Shoulders, 14 Ind. App. 665; s. c. 43 N. E. Rep. 458; Linton Coal Co. V. Persons, 11 Ind. App. 264; s. c. 39 N. E. Rep. 214 (action for statutory negligence) ; Lake Shore &c. R. Co. v. Boyts, 16 Ind. App. 640; s. c. 45 N. E. Rep. 812; Wabash R. Co. v. Miller, 18 Ind. App. 549; s. c. 48 N. E. Rep. 663 (railway fire case) ; Guthrie v. Nix, 3 Okla. 136; s. c. 41 Pac. Rep. 343; Rabe v. Sommerbeck, 94 Iowa 656; s. c. 63 N. W. Rep. 458; Gregory v. Woodworth, 93 Iowa 246; s. c. 61 N. W. Rep. 962 (in a statutory ac- tion for injury by a dog) ; Baltimore &c. R. Co. V. Young, 146 Ind. 374; s. c. 45 N. E. Rep. 479 ; 6 Am. & Eng. Rail. Cas. (N. S.) 349; Torongo v. Salliote, 99 Mich. 41; s. c. 57 N. W. Rep. 1042; Walker v. Chester 354 County, 40 S. C. 342; s. c. 18 S. E. Rep. 936 (under a statute giving a right of action for injuries through defective highways). '^ Cincinnati &c. R. Co. v. Stanley, 4 Ind. App. 364; s. c. 30 N. E. Rep. 1103; Chicago &c. R. Co. v. Clough, 134 111. 586; s. c. 45 Am. & Eng. R. Cas. 137; 25 N. B. Rep. 664, aff'g 33 111. App. 129. A failure to aver want of due care on the part of the plaintiff is not fatal to the declara- tion after verdict: Baltimore &c. R. Co. V. Then, 159 111. 535, aff'g s. c. 59 111. App. 567. A complaint by a father for damages sustained by him by the death of his minor son must, under the Indiana rule of pleading relating to contributory negligence, aver that the injury from which the son's death resulted was not caused by any fault on the son's part. The general averment that the parents were free from contributory fault or negligence is not sufficient: Terre Haute Street Car Co. v. Tappanbeck, 9 Ind. App. 422; s. c. 36 N. E. Rep. 915. The rule applies in actions for statutory negligence, — that is to say, in actions for negligence which con- sist in the violation of statutes, — as well as in other cases: Baltimore &c. R. Co. V. Young, 146 Ind. 374; s. c. 45 N. E. Rep. 479; 6 Am. & Eng. Rail.- Cas. (N. S.) 349. But the bet- ter View is that it is cured by verdict: Chicago &c. R. Co. v. Clough, 134 111. 586; s. c. 45 Am. & Eng. Rail. Cas. 137; 25 N. E. Rep. 664, aff'g 33 111. App. 129; Baltimore &c. R. Co. V. Then, 159 111. 535; s. c. 42 N. E. Rep. 971, aff'g 59 111. App. 561. A recent holding in Maryland is to the effect that In an action against an employer for the death of an employ^, an allegation that RULES OP PEOCEDUKB IN CONTKIBUTORY NEGLIGENCE. [2d Ed. § 371. Freedom from Contributory Negligence Need Not be Al- leged by the Plaintiff in those Jurisdictions where the Negligence is an Affirmative Defense. — On the other hand, freedom from contribu- tory negligence need not be alleged by the plaintiff in those jurisdic- tions where contributory negligence is an affirmative defense, to be alleged and proved by the defendant.'^ The rule is the same where the plaintiff's right of action is given by statute as where it arises under the principles of the common law.'^ Subdivision II. Manner of Pleading Contributory Negligence. Section 373. Jurisdictions in which it is not sufficient to deny contribu- tory negligence in general terms. 374. Particularity of averment in pleading contributory negli- gence. 375. General averment that person injured was without fault sufficient. 376. General allegations denying contributory negligence over- thrown by special ones which in efCect admit it. 377. What special allegations do not overthrow the general alle- Section gation that the person in- jured was without fault. 378. Allegations which sufficiently negative contributory negli- gence. 379. Examples of complaints which do not negative contributory negligence. 380. Allegations not necessary in particular cases where con- tributory negligence must be denied. 381. Allegations not necessary where contributory negligence is matter of defense. there was no contributory negli- gence on the part of the deceased, is indispensable: State v. Baltimore &c. R. Co., 77 Md. 489; s. c. 26 Atl. Rep. 865. But this does not seem clear, since, as seen in a former section (§ 366), the rule in Maryland is that contributory negligence is an affirmative defense. " Reading Twp. v. Telfer, 57 Kan. 798; s. c. 48 Pac. Rep. 134; Balti- more &c. R. Co. V. Whittington, 30 Gratt. (Va.) 805; Lopez v. Central Arizona Min. Co., 1 Ariz. 464; Barry V. Lake Erie &c. R. Co., 70 Fed. Rep. 193; Matthews v. Bull, 47 Pac. Rep. 773 (not off. rep.); Buckner v. Richmond &c. R. Co., 72 Miss. 873; s. c. 18 South. Rep. 449; Johnson v. Bellingham Bay Imp. Co., 13 Wash. 455; s. c. 43 Pac. Rep. 370; Mary Lee Coal & R. Co. V. Chambliss, 97 Ala. 171; s. c. 53 Am. & Eng. R. Cas. 254; 11 South. Rep. 897; Boyd v. Oddous, 97 Cal. 510; s. c. 32 Pac. Rep. 569; Eskridge v. Lewis (Kan.), 32 Pac. Rep. 1104 (not off. rep.); Galveston Rope &c. Co. V. Burkett, 2 Tex. Civ. App. 308; s. c. 21 S. W. Rep. 598; Hall V. St. Joseph Water Co., 48 Mo. App. 356; Denison v. Sanford, 2 Tex. Civ. App. 661; s. c. 21 S. W. Rep. 784; Johnston v. Oregon &c. R. Co., 23 Ore. 94; s. c. 31 Pac. Rep. 283; Richmond &c. R. Co. v. Farmer, 97 Ala. 141; s. c. 12 South Rep. 86. Contributory negligence need not be pleaded before a justice of the peace as a defense to an action to recover damages for a collision with a grip car, in order to make that defense available at the trial: Glenville v. St. Louis R. Co., 51 Mo. App. 629 (in an action before a justice of the peace). " Reading Twp. v. Telfer, 57 Kan. 798; s. c. 48 Pac. Rep. 134. 355 1 ThomiJ. Neg.J contributory negligence. Section Section 382. When not necessary, under tory negligence admissible either rule, to negative con- under general issue. oo, ^tributory negligence ggg^ doctrine that defense not ad- 383. Not necessary to negative con- . ., , , . „ tributory negligence in ac- missible unless specially tions for willful or wanton - pleaded. injuries ^^^- Whether the intoxication of 384. Negativing contributory negli- t^^ plaintiff or of the person gence in an action by a child. billed or injured must be 385. What complaints are demurra- specially pleaded. ble as showing contributory 390. What admitted by plea of con- negligence on their face. tributory negligence. 386. What complaints not demurra- 391. Whether a reply necessary to ble as showing contributory special pleading of contribu- negligence. tory negligence. 387. Whether defense of contribu- ^92. A negation of contributory negligence does not state a cause of action. § 373. Jurisdictions in Which it is Not Sufficient to Deny Contrib- utory Negligence in General Terms. — In some jurisdictions it is not sufficient for the plaintiff, under the rule putting upon him the bur- den of alleging and proving his want of contributory negligence, merely to deny contributory negligence or fault on his part in general terms; but he must plead a state of facts showing that he was not guilty of such negligence or fault. ISTor does this rule require him to plead a negative ; for although the language employed in the books is that he is required to aver and prove his freedom from contributory negligence, yet the real meaning is that he is required to aver and prove that he himself was in the exercise of due care; and the rule now under consideration requires him to plead a state of facts from which the inference reasonably follows that he was in the exercise of due care. An example of this rule will be found in a decision of the Supreme Court of Ohio, — a State in which it is more or less doubtful whether contributory negligence is to be disaffirmed by the plaintiff in his pleading, or is an affirmative defense to be set up by the defendant. It was held that, where an employe sues his employer for an injury alleged to have been brought upon the employe through defective appliances, or through the neglect of the employer to care for the premises where the employe was required to work, his complaint must aver a want of knowledge on his part of the defects causing the in- jury, or else that, having such knowledge, he informed the employer and received the promise of the latter that the defect would be reme- died, the promise being express or implied, and thereafter continued in the employment in the expectation that the promise would be ful- filled, and while so continuing in it received the hurt. An averment 356 EULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. that the injury befell him without fault on his part is not, under the theory of this court, sufficient.'* So, in Indiana, until a recent stat- ute,'^ the rule was that the plaintifE must in his complaint, negative contributory negligence, at least in general terms, where a shipper of live stock brought an action against a railway carrier for failure to transport them, and he had agreed to care for them on the journey, to feed and water them, and to load and unload them at his own ex- pense, — it was held that he must allege that the loss was not attrib- utable to his failure to perform his part of the contract, or to his negligence in performing it.'^ But this seems nothing more than the rule that in an action on a contract which contains conditions pre- cedent to be performed by the plaintifE, the plaintifE must aver and prove the performance of such conditions. § 374. Particularity of Averment in Pleading Contributory Negli- gence. — Then, as to the manner of pleading contributory negligence, it is clear on principle that in those jurisdictions which treat it as a special affirmative defense to be specially pleaded, it ought to be pleaded by stating the fact or collection of facts upon which the con- clusion of contributory negligence is predicated, and not by merely stating the conclusion of law that the plaintifE, or person killed or injured, was guilty of negligence contributing to the disaster which befell him.''' In conformity with this view, it has been held that an allegation in the answer that the plaintiff's injuries were the result of his own contributory negligence, is too general to admit evidence thereunder.'^ But this is plainly unsound so far as it relates to evi- dence of the facts immediately attending the accident; for here, in order to enable the court and the jury to deal justly with the subject, the evidence ought to exhibit the whole transaction as it actually oc- curred, and not merely a part of it. But it may be sound in regard to any prior negligence, extrinsic to the facts surrounding the accident, or to any subsequent negligence aggravating the damages. This con- elusion is necessary to give full scope and play to the manifestly just and reasonable rule that the plaintiff can not recover where the in- disputable evidence shows that he, or the person killed or injured, was guilty of negligence contributing to the misfortune.'^ "Coal & Car Co. v. Norman, 49 354; Birmingliam Furnace & Man. Ohio St. 598; s. c. 29 Ohio L. J. 8; co. v. Gross, 97 Ala. 220; s. c. 12 32 N. B. Rep. 857. South. Rep. 36. "Ante, §365. '» Murray v. Gulf &c. R. Co., 73 ™ Terre Haute &c. R. Co. v. Sher- Tex. 2 ; s. c. 11 S. W. Rep. 125. wood, 132 Ind. 129; s. c. 31 N. E. ''Post. § 432. In Alabama, a plea Rep. 781; 17 L. R. A. 339. in an action under the Alabama Em- •' Postal Teleg. Cable Co. v. Hul- ployers' Liability Act by the admin- sey, 115 Ala. 193; s. c. 22 So. Rep. istrator of an employe alleged to 357 1 Thomp. Neg.J contributory negligence. § 375. General Averment that Person Injured was Without Fault Sufficient. — Under this rule of pleading, a general averment that the plaintiff was without fault, or was free from contributory negligence, is sufficient, unless the particular facts in other portions of the plaint- iff's pleading negative this conclusion or show contributory negligence or other fault equally fatal to a recovery; and it is hence not neces- sary to allege the particular facts which show that the plaintiff or person injured was free from contributory negligence.^" Under this have been killed because of defects in the ways, works, and machinery of the defendant, specifying "that the plaintiff's intestate was himself guilty of negligence which proxi- mately contributed to his alleged injury," is demurrable as not defi- nitely stating in what such negli- gence consisted: Tennessee Coal &c. Co. V. Herndon, 100 Ala. 451; s. c. 14 South. Rep. 287. In the same State, in a similar action, a plea alleging that plaintiff's intestate was guilty of negligence in and about the way he was discharging his alleged duties, which negligence contributed proximately to his al- leged injuries, has been held demur- rable as being too general: Louis- ville &c. R. Co. V. Markee, 103 Ala. 160; s. c. 15 South. Rep. 511. In Mississippi, a railroad company, sued by an infant four or five years old, which sets up the infant's con- tributory negligence as a defense, must plead the fact that the plaint- iff was of exceptional maturity and capacity for one of his age, and ca- pable of taking care of himself un- der the circumstances, or must give notice thereof under the general Issue as required by the statute: Westbrook v. Mobile &c. R. Co., 66 Miss. 560; s. c. 6 South. Rep. 321; 6 Rail. & Corp. L. J. 235; 39 Am. & Eng. R. Cas. 374. The reason is that, prima facie, an Infant of that age is incapable of contributory neg- ligence {ante, § 310) and the writer thinks that in the case, of a child of such tender years, the presumption should be held conclusive, and that the law should not allow an attempt to rebut it. Where a complaint alleged an injury to a horse to have resulted from a defective platform or chute by which he was to be taken from a car, an answer aver- ring that the horse fell by reason of the negligence of plaintiff's agent, and the wildness and unruliness of 358 the horse, but was in no manner injured, did not make the defense one of contributory negligence so as to require a reply: Owen v. Louis- ville &c. R. Co., 87 Ky. 626; s. c. 9 S. W. Rep. 698; 10 Ky. L. Rep. 354. In Washington State an allegation in an answer that the injuries were caused by the plaintiff's carelessness, fault, and want of care, has been held sufficient to put in issue the question of contributory negligence, where the complaint alleges that the plaintiff was not guilty of such negligence: Brown v. Seattle City R. Co., 16 Wash. 465; s. c. 47 Pac. 890. In Texas, a pleading of con- tributory negligence in a suit against a railway company for inju- ries to crops, by cattle passing through an opening made by the company In the plaintiff's fence, which pleading alleged in substance that the plaintiff by build- ing a few yards of fence around the passenger depot of the defendant, could have prevented all the dam- ages, — was held good on general de- murrer, although it did not show that the plaintiff had any right to build the fence or to close the pas- sage: Gulf &c. R. Co. v. Simonton, 2 Tex. Civ. App. 558; s. c. 22 S. W. Rep. 285. For an answer in an ac- tion by a brakeman against a rail- road company for injuries from a brake, alleged to be defective, which was held in effect an argumentative denial, see Matchett v. Cincinnati &c. R. Co., 132 Ind. 334; s. c. 53 Am. & Eng. R. Cas. 266; 31 N. B. Rep. 792. Compare Plymouth v. Fields, 125 Ind. 323; s. c. 25 N. B. Rep. 346. ™ Wilson V. Trafalgar &c. Gravel Road Co., 83 Ind. 326; Louisville &c. R. Co. V. Berry, 2 Ind. App. 427; s. c. 28 N. B. Rep. 714; Chicago &c. R. Co. V. Barnes, 2 Ind. App. 213; s. c. 28 N. E. Rep. 328; Pennsyl- vania Co. V. Horton, 132 Ind. 189; s. c. 31 N. E. Rep. 45; Pennsylvania RULES OF PKOCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. rule of pleading, it is generally sufficient to allege that the plaintiff or person injured was without any fault, as this is tantamount to alleg- ing that he was free from negligence.*^ And this is so, although the complaint contains particular allegations as to the care exercised by the plaintiff, which allegations, standing alone, might not be suffi- cient.'^ Under this rule it is sufficient to allege that the injury befell the plaintiff "all without the contributory fault" of the plaintiff.** Under this rule a complaint for an injury sustained by an employe of a railway company in making a "drop switch" on a side track, where the plaintiff was unloading lumber from a flat car, alleging that the injury was caused wholly by the default and negligence of the de- fendant, without fault or carelessness on the part of the plaintiff, has been held not demurrable, on the ground that it does not show that the plaintiff did not know, or could not have seen, that the ears were approaching.** But it does not follow that a general allegation that the injuries occurred without fault or negligence on part of the plaintiff, is necessary under this rule. Such a general allegation is. Co. V. McCormack, 131 Ind. 250; s. c. 30 N. E. Rep. 27; Louisville &c. R. Co. V. Summers, 131 Ind. 241; s. c. 30 N. E. Rep. 873; Louisville &c. R. Co. V. Hanning, 131 Ind. 528; s. c. 31 N. E. Rep. 187; Louisville &c. R. Co. V. Stommel, 126 Ind. 35; s. c. 25 N. E. Rep. 863; Alexandria Min. &c. Co. V. Painter, 1 Ind. App. 587; s. c. 28 N. E. Rep. 113; Allen County v. Creviston, 133 Ind. 39; s. c. 32 N. E. Rep. 735; Columbus v. Strassner, 124 Ind. 482; s. c. 25 N. E. Rep. 65; Citizens' Street R. Co. v. Albright, 14 Ind. App. 433; s. c. 42 N. E. Rep. 238; rehearing denied in 14 Ind. App. 438; s. c. 42 N. E. Rep. 1028; Keeley Brew. Co. v. Parnin, 13 Ind. App. 588; s. c. 41 N. E. Rep. 471; Chicago &c. R. Co. v. Smith, 6 Ind. App. 262; s. c. 33 N. E. Rep. 241; Phoenix Ins. Co. v. Pennsylvania Co., 134 Ind. 215; s. c. 33 N. E. Rep. 970; 20 L. R. A. 405; Lafayette v. Ashby, 8 Ind. App. 214; s. c. 34 N. E. Rep. 238; Chicago &c. R. Co. v. McDaniel, 134 Ind. 166; s. c. 32 N. E. Rep. 728; rehearing denied in 33 N. E. Rep. 769; Wilson v. Denver &c. R. Co., 7 Colo. 101; Sale v. Aurora &c. Turnpk. Co., 147 Ind. 324; s. c. 46 N. E. Rep. 669 ; Elkhart v. Whitman, 122 Ind. 538; s. c. 23 N. E. Rep. 796; Pennsylvania Co. v. O'Shaughnessy, 122 Ind. 588; s. c. 23 N. E. Rep. 675; 41 Am. & Bng. R. Cas. 479; Evans- ville &c. R. Co. V. Welkle, 6 Ind. App. 340; s. c. 33 N. B. Rep. 639; Evans- ville &c. R. Co. V. Krapf (Ind.), 36 N. B. 901 (not off. rep.) ; Ohio &c. R. Co. V. Hill, 7 Ind. App. 255; s. c. 34 N. E. Rep. 646; Falk v. New York &c. R. Co., 56 N. J. L. 380, 384; s. c. 29 Atl. Rep. 157. Sufficient to allege that the plaintiff was "without any fault, blame, or negligence:" Lake Erie &c. R. Co. v. Griffin, 8 Ind. App. 47; s. c. 35 N. E. Rep. 396. Or that the injury happened while the plaintiff was exercising due and rea- sonable care and without fault or negligence on his part: Toledo &c. R. Co. V. Brannagan, 75 Ind. 490. '^Anderson v. Harvey, 67 Ind. 420; Louisville &c. R. Co. v. Sandford, 117 Ind. 265; s. c. 19 N. E. Rep. 770, and other cases there cited; Rogers V. Overton, 87 Ind. 410; Gheens v. Golden, 90 Ind. 427; Eureka Block Coal Co. V. Bridgewater, 13 Ind. App. 333; s. c. 40 N. E. Rep. 1101; Balti- more &c. R. Co. V. Young, 146 Ind. 374; s. c. 45 N. E. Rep. 479; 6 Am. & Bng. R. Cas. (N. S.) 349. ''-Baltimore &c. R. Co. v. Young, 146 Ind. 374; s. c. 45 N. B. Rep. 479; 6 Am. & Bng. Rail. Cas. (N. S.) 349. ^Chicago &c. R. Co. v. Smith, 6 Ind. App. 262; s. c. 33 N. E. Rep. 241. « Chicago &c. R. Co. v. McDaniel, 134 Ind. 166; s. c. 32 N. E. Rep. 728; rehearing denied in 33 N. E. Rep. 769. 359 1 Thomp. Neg.] contributory negligence. of course, excused, where facts are stated from which it clearly ap- pears that the plaintiff was without any fault or negligence contrih- uting to the injury.'^ Accordingly, a complaint in an action to re- cover damages for injuries sustained by a traveller, who was thrown to the ground by a wire upon a sidewalk, need not state reasons why the wire was not observed, in order to negative a presumption of negligence, where it expressly alleges that he was in the exercise of due care. The reason is that the plaintiff was not prima facie guilty of contributory negligence in failing to observe the obstruction.** In a Jurisdiction where contributory negligence is an affirmative defense, the same rule has been declared with reference to a reply to an answer setting up contributory negligence. It is only necessary for the plaintiff, in such a reply, to deny contributory negligence, without denying the particular facts alleged by the defendant to show it.*^ § 376. General Allegations Denying Contributory Negligence Overthrown by Special Ones which in Effect Admit It. — It is a gen- eral rule that, while pleadings are to be construed reasonably, yet where the same pleading admits of diilerent interpretations, that one is to be adopted which goes most strongly against the pleader. An- other rule, often applied in the construction of written instruments, is embraced in the maxim generalia specialibus non derogant. There- fore, the general allegations in a pleading are controlled by the special ones, and if the latter show that the former can not be true, the latter must prevail.'* Under either of these rules, if the plaintiff's declara- tion, petition or complaint, by whatever name called, denies contrib- utory negligence in general language, and at the same time pleads or admits a special state of facts which shows that there was contributory negligence, the special facts will control, and the pleading will be bad on demurrer.*" A general averment that the plaintiff was without ^ Sale V. Aurora &c. Turnp. Co., That a general allegation that the 147 Ind. 324; s. c. 46 N. E. Rep. 669; injury occurred without any fault Pittsburgh &c. R. Co. v. Welch, 12 or negligence on the part of the Ind. App. 433; s. c. 40 N. E. Rep. plaintiff is suflBcient in a complaint 650. in an action for personal injuries, *= Brush Electric Light Co. v. Kel- when it appears from the facts al- ley, 126 Ind. 220; s. c. 25 N. E. Rep. leged therein that the dangerous 812; 10 L. R. A. 250; 9 Rail. & Corp. conditions which caused the inju- L. J. 135. Therefore, a complaint, ries were unknown to him, — see in an action for damages for personal Romona Oolitic Stone Co. v. Tate, injuries from falling into an open 12 Ind. App. 57; s. c. 37 N. E. Rep. cellarway in a sidewalk, is not bad 1065. as not showing the plaintiff free *' Louisville &c. R. Co. v. Wolfe, from contributory negligence, be- 80 Ky. 82. cause it alleges that he was blind, ^ Warbritton v. Demorett, 129 Ind. when it directly avers that he was 346. free from fault: Franklin v. Harter, "Spencer v. Ohio &c. R. Co., 130 127 Ind. 446; s. c. 26 N. E. Rep. 882. Ind. 181; s. c. 29 N. E. Rep. 915; 360 RULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. fault will make the complaint good, as against a demurrer on the ground that it fails to negative contributory negligence, unless the court is able to say, as matter of law, from the specific averments, that the plaintiff was guilty of contributory negligence,*" and this, as elsewhere seen,°^ the court can not do where fair-minded men of aver- age intelligence and experience might draw different conclusions from the facts specially pleaded, as to whether they showed or admitted con- tributory negligence. Nor is it sufficient to overthrow the general alle- gation of freedom from fault, that the facts specially pleaded failed to show the absence of negligence, since the plaintiff is not bound to show that by more than a general allegation ; especially "where the specific allegation does not appear to include all of the occurrences and stands in conflict with that otherwise expressed in the general allegation."®^ More plainly speaking, in order for the specific allegations to control the general allegation, they must be clearly repugnant, and must show that the general allegation is untrue."^ Thus, in, an action against a street railway company, for causing the death of the plaintiff's in- testate, a child seven years of age, it was held that the plaintiff could not recover on a complaint which, although it alleged that the "in- testate lost his life by reason of the negligence and carelessness of the defendant in the operation of its street railway, and of the unfitness and gross negligence and carelessness of its servants and agents while engaged in its business," — showed no unfitness, gross negligence or carelessness on their part when taken as a whole, but did show wrong- ful conduct on the part of the plaintiff's intestatp while trespassing, which conduct contributed to the accident.®* Stewart v. Pennsylvania Co., 130 346. Thus,- a general averment that Ind. 242; s. c. 29 N. E. Rep. 916; a workman on a railway track, wlio Parrott v. New Orleans &c. R. Co., was killed by a train on another 62 Fed. Rep. 562; Peirce v. Oliver, track while getting off the train by 18 Ind. App. 87; s. c. 47 N. E. Rep. which he was carried to his work, 485; Gay v. Essex Elec. St. R. Co., was free from contributory negli- 159 Mass. 242; s. c. 34 N. E. Rep. gence, was deemed to be overcome 258. by specific allegations in the com- *■ Evansville &c. R. Co. v. Athon, plaint that, before he got off, he 6 Ind. App. 295; s. c. 33 N. E. Rep. looked and listened for a train 469; Reinhart v. Martin County which he knew was due about that Commrs., 9 Ind. App. 572; s. c. 37 time, but did not see or hear it, N. B. Rep. 38; Pittsburgh &c. R. Co. owing to steam escaping from the V. Bennett, 9 Ind. App. 92; s. c. 35 engine of his train, and that there N. E. Rep. 1033 ; Alexandria Min. &c. was an embankment on the other Co. V. Irish, 16 Ind. App. 534; s. c. side of the train which made it in- 44 N. E. Rep. 680; Summit Coal Co. convenient to alight on that side, it V. Shaw, 16 Ind. App. 9; s. c. 44 not being averred that it was impos- N. E. Rep. 676. sible to get off there: Stewart v. '^Post. § 429. Pennsylvania Co., 130 Ind. 242; s. c. " Pittsburgh &c. R. Co. v. Burton, 29 N. E. Rep. 916. 139 Ind. 357, 362; s. c. 37 N. E. Rep. "Gay v. Essex Elec. St. R. Co., 150. 159 Mass. 242; s. c. 34 N. E. Rep. »= Warbritton v. Demorett, 129 Ind. 258. 361 1 Thomp. Neg.J contributory negligence. § 377. What Special Allegations do Not Overthrow the General Allegation that the Person Injured was Without Fault. — Upon this subject it was said by the Supreme Court of Indiana, speaking through Woods, J.: "The averment that the plaintiff was without fault is of a technical character and admits of any legitimate proof by which its truth can be established; and, as a matter of pleading, it makes the complaint good in that respect, against all mere inferences of contributory negligence, unless the inference arises as a necessary conclusion from the facts stated."^ So long as the facts stated do not force the legal conclusion that there was contributory fault, the aver- ment that there was no such fault entitles the plaintiff to have it sub- mitted to the jury as a question of fact, whether there was such negli- gence."°° Applying the foregoing doctrine, it has been held that a general allegation in such a pleading that the plaintiff, or the person for whose death or injury the action is brought, was without fault, is not overthrown in the case where one was killed by the falling of a high bridge by specific averments that he was attempting to cross the bridge with a traction steam-engine, water-tank, and threshing-ma- chine;®'' in a case where a railroad employe was injured in a collision, by an averment that he was riding on the tender of an engine with his back to the engine, for the purpose of reaching his work;"* in an action for injuries received by being run upon by the defendant's railway train at a highway crossing, by averments showing that the injured party was an infant driving a two-horse team, but not giving his age;"" in an action by a miner employe against his employer for injuries received from the falling in of a part of the earth of the mine upon him, by averments showing that the plaintiff passed through the mine when it was so dark that he could not see its condition;^"" in an action for injuries received on a race track, by an allegation that the owner of the race track started several horses on a race at full speed while a horse was being driven in the other direction so near the stop- ping point that it was only a few seonds before a collision oc- curred ;^"^ in an action against a street railroad company for an in- jury received while crossing a portion of its track which was defective, by an allegation that the unsafe and dangerous condition of the track »= Citing Salem v. GoUer, 76 Ind. 130 Ind. 376; s. c. 30 N. E. Rep. 416. 291. '"Louisville &c. R. Co. v. Pritch- "" Pittsburgh &c. R. Co. v. Wright, ard, 131 Ind. 564; s. c. 31 N. E. Rep. 80 Ind. 182, 184. 358. ■" Wabash v. Carver, 129 Ind. 552 ; "» Parke County Coal Co. v. Barth, s. c. 13 L. R. A. 851; 35 Am. & Eng. 5 Ind. App. 159; s. c. 31 N. E. Rep. Corp. Cas. 556; 29 N. E. Rep. 25; 585. Clark County v. Brod, 3 Ind. App. ^"'Fairmount Union J. S. Agri. 585; s. c. 29 N. E. Rep. 430. Asso. v. Downey, 146 Ind. 503; s. c. "* Cincinnati &c. R. Co. v. Darling, 45 N. B. Rep. 696. 362 EULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. could easily have been discovered by the officers of the city having the supervision of its streets, and by the street railroad company, where there was a general allegation that he was looking and driving as carefully as he well- could while attempting to cross.^"^ § 378. Allegations which Sufficiently Negative Contributory Neg- ligence. — In New York, where the rule of the jurisdiction is that the plaintiff sustains the burden of exonerating himself, or the person killed or injured, from the imputation of contributory negligence,^"^ it is held that the absence of contributory negligence need not he strictly alleged, because this allegation is substantially involved in the averment that the defendant's negligence caused the injury.^"* In giving the opinion of the Court of Appeals of New York on this sub- ject, Judge Finch said: "In the multitude of cases of this general character, we know of none which requires of the pleader any inde- pendent or explicit allegation that the plaintiff himself was without fault." ^"'^ In Indiana, in an action against a city for negligence, in not repairing a defective sidewalk, an allegation that, in passing the place, the plaintiff' "accidentally and without fault on her part fell," was held a sufficient allegation of due care, without stating that she was obliged to pass that way.^°^ In the same State, in an action for injuries to a horse by the defective condition of a railroad crossing, contributory negligence is sufficiently negatived by an allegation that plaintiff had no knowledge of the defective condition of the crossing, and that the injury occurred without his fault.^"^ In the same State, in an action for injuries received by an employe from the giving way of an unsupported embankment, the ground of the action being the 1™ Citizens' Street R. Co. v. Sutton, Male v. Delaware &c. Co., 59 N. Y. 148 Ind. 169; s. c. 46 N. E. Rep. 462; 367; 39 N. Y. St. Rep. 153; 14 N. Y. rehearing denied in 47 N. B. Rep. Supp. 630; Haskell v. Penn Yan, 5 462. For other cases where the spe- Lans. (N. Y.) 43, 48; Wolfe v. Super- cific allegations of the complaint did visors, 19 How. Pr. (N. Y.) 370; not disclose facts overcoming the Richards v. Westcott, 2 Bosw. (N. general allegation that the plaint- Y.) 589; Johnson v. Hudson &c. R. iff was without fault or negligence, Co., 20 N. Y. 65; Hackford v. New see: Ohio &c. R. Co. v. McDaneld, York &c. R. Co., 6 Lans. (N. Y.) 381; 5 Ind. App. 108; s. c. 31 N. E. Rep. s. c. 13 Abb. Pr. (N. S.) 18; s. c. 836; Citizens' Street R. Co. v. Merl, aff'd 53 N. Y. 654. For a complaint 134 Ind. 609; s. c. 33 N. E. Rep. 1014; by a minor employe, injured by Citizens' Street R. Co. v. Spahr, 7 reason of an unguarded and defec- Ind. App. 23 ; s. c. 33 N. E. Rep. tive elevator shaft, which sufficiently 446; Linton Coal Mine Co. v. Per- pleaded the absence of contributory sons, 11 Ind. App. 264; s. c. 39 N. B. negligence, see Rupprecht v. Rep. 214; Louisville &c. R. Co. v. Brighton Mills, 27 App. Div. 77; s. c. Downey, 18 Ind. App. 140; b. c. 47 50 N. Y. Supp. 157. N. B. Rep. 494. ™Lee v. Troy Citizens' Gas Co., ""Ante, § 365. 98 N. Y. 115, 119. ™ Lee V. Troy Citizens' Gas. Co., *"' Huntington v. Breen, 77 Ind. 29. 98 N. Y. 115. See also Urquhart v. "' Ohio &c. R. Co. v. Hawkins, 1 Ogdensburg, 23 Hun (N. Y.) 75; Ind. App. 213; s. c. 27 N. B. Rep. 331. 363 1 Thomp. Neg.] contkibutory negligence. failure of the employer to notify the employe that there was danger in passing close to the bank, an averment that the employe had no knowledge that the dirt, clay, and stone composing the bank had been loosened and left without support, has been held a sufficient negation of his contributory negligence, without any allegation that he did not know that it was in danger of falling, or that it was dangerous to pass near it.^°^ In an action by an employe against his employer for dam- ages, for personal injuries grounded on negligence, an allegation that "while so in the employment of defendants and while so fulfilling his said duty," the plaintiff was injured, has been held a sufficient allega- tion that the plaintiff was in the exercise of due care.^"" In a similar action, an allegation that the plaintiff was in the usual and ordinary course of his employment at the time of. the injury, has been held equivalent to an allegation that he was in the exercise of ordinary care.^'" In a similar action, the same has been held of an allegation that the plaintiff, in the discharge of his duties as a switchman, was standing upon the side of his car, where it was his duty to be, and that, while passing along the track by a place where timber was negli- gently left standing by the defendant, and without any warning or notice of danger or knowledge that the timber was there, the plaintiff's leg was brought into contact with it and crushed.^ ^^ § 379. Examples of Complaints which Do Not Negative Contribu- tory Negligence. — Under the rule which requires the plaintiff in his declaration, complaint or petition, to negative the conclusion of eon- 108 Peerless Stone Co. v. Wray, 143 quires, the injuries would not have Ind. 574; s. c. 42 N. E. Rep. 927. In been received; and that he had no the same State it was held that the knowledge of the unsafe and danger- plaintifC's ignorance of the unpro- ous condition of the roof, inasmuch tected condition of a ditch in the as he had been in the mine only ten street, into which she fell, is suffi- days before the injury occurred, — ciently alleged by a complaint aver- sufficiently alleges that the injury ring that, while endeavoring to go to occurred without any fault or neg- her home in a careful and guarded ligence on his part: Hochstettler v. manner, without knowledge and Hosier Coal & Min. Co., 8 Ind. App. without being able to see the loca- 442; 35 N. E. 927. tion of the ditch, she fell into it '™ Kllberg v. Berry, 166 Mass. 488 ; and was injured, in the absence of s. c. 44 N. B. Rep. 603. any motion to make it more specific: ""Lake Shore &c. R. Co. v. Con- Bloomington v. Rogers, 9 Ind. App. way, 67 111. App. 155. 230; s. c. 36 N. E. Rep. 439. Under '" Gerke v. Pancher, 57 111. App. the same rule of pleading, a com- 651. For a declaration sufficiently plaint which alleges that, without showing, in the absence of a demur- any fault or negligence on plaint- rer, that the plaintiff used reason- iff's part, the slate composing the able care and caution in attempting roof of a coal mine at the point to extricate herself from a hole in where he was at work, fell upon the sidewalk into which she had him, greatly injuring him; that he fallen, — see McKormick v. West was at the time using all due care; Bay City, 110 Mich. 265; s. c. 3 Det. that, had defendant furnished him L. N. 342; 68 N. W. Rep. 148. with props and caps, as the law re- RULES OF PKOCEDUEE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. tributory negligence on his own part, it has been held that this is not sufficiently done by an allegation that the plaintiff has been in all matters and things blameless, and without fault, because it does not deny the existence of such negligence at the particular time of the accident.^^^ For the same reason, complaints have been held insuffi- cient in the following cases : In an action against a railway company for carrying a passenger beyond her distination, and by stopping at a distance from the station and roughly ordering and forcing her to get off, where it was not alleged that she had conformed to the rules of the company and paid her fare, or offered to pay it;^^^ in an action to recover damages against a turnpike company for an injury to the plaintiff, where the complaint shows that while driving along the turnpike at night, without a light, the plaintiff drove over an embank- ment at a curve, and it appeared from the complaint that he was familiar with the situation and took no precautions to avoid the acci- dent ;^^* in an action to recover damages for the killing of a traveller on the highway at a railway crossing, an averment that while passing from the crossing, without carelessness or negligence on his part, and while using due care and caution, the deceased was struck by a train — • the atteniiated reason given by the court being that he may have failed in his duty before reaching the crossing ;^^° where the allega- tion was that the plaintiff "attempted" to do a certain thing care- fully, — this not being qualified by the allegation that he was in the exercise of due care.^^' § 380. Allegations Not Necessary in Particular Cases where Con- tribntory Negligence must be Denied. — In an action for injuries caused by falling into an unguarded excavation the plaintiff need not expressly aver that plaintiff was ignorant of the excavation, where the complaint contains a general averment that he was without fault. '^^'^ In an action for the death of the plaintiff^s intestate, caused by negli- gence in the construction and maintenance of a county bridge, the plaintiff need not allege that the decedent's employer, who was the '" Richmond Gas. Co. v. Baker, 146 were: Where the plaintifE was in- Ind. 600; s. c. 39 N. E. Rep. 552. jured by a locomotive coming into "" Scott V. Cleveland &c. R. Co., close proximity to her horse at a 144 Ind. 125; s. c. 32 L. R. A. 154; public crossing, causing him to up- 43 N. E. Rep. 133. set the buggy: Lake Erie &c. R. Co. '"Sale V. Aurora &c. Turnpk. Co., r. Hancock, 15 Ind. App. 104; s. c. 147 Ind. 324; s. c. 46 N. E. Rep. 669. 43 N. B. Rep. 659. Where the plaint- '" Chicago &c. R. Co. v. Thomas, iff was violently thrown down from 147 Ind. 35; s. c. 46 N. E. Rep. 73; the defendant's hack: Wahl v. 9 Am. & Eng. R. Cas. (N. S.) 181. Shoulder, 14 Ind. App. 665; s. c. 43 ™ Thompson v. Flint &c. R. Co , N. E. Rep. 458. 57 Mich. 300. Other cases where '" Ohio &c. R. Co. v. Levy, 134 Ind. freedom from contributory negli- 343; s. c. 32 N. E. Rep. 815; rehear- gence was not sufllciently pleaded, ing denied in 34 N. E. Rep. 20. 365 1 Thomp. Neg.] contributory negligence. owner of the engine, boiler, and wagon tinder the weight of which the bridge fell, was free from fault, where it alleges generally that deceased was free from negligence.^ ^* In an action for personal injuries re- ceived by a boy eleven years of age, the complaint need only negative contributory negligence on his part, and it need not allege that there was no negligence on the part of his parents. ^^* In an action for a per- sonal injury the petition or complaint need npt set forth the particu- lar precautions which the plaintifE took to avoid the injury.^^" Where an employe sues his employer for a negligent injury, grounded on the allegation that the machinery furnished by the employer about which the employ^ was required to work was defective, the plaintiff need not, in addition to the averment that he did not know of the defect, allege that he could not have discovered it by the use of ordinary care and prudence.^^^ § 381. Allegations Not Necessary where Contributory Negligence is Matter of Defense. — It is scarcely necessary to say that, in those jurisdictions where contributory negligence is a matter of affirmative defense, a declaration or complaint will not be held bad, merely be- cause it omits an allegation that the plaintiff, or person injured or killed, was without fault, since it is presumed that he was until the contrary appears.^^^ On the contrary, the rule of those jurisdictions dispenses, in general, with apologetic pleading on the part of the plaintiff, except in cases where he pleads the doing or failing to do some act which implies contributory negligence, in which case his complaint may be demurrable, unless he aver that he did or omitted to do the act in some manner consistent with the exercise of reasonable care. For example, in an action by a passenger for injuries received from the falling of an upper berth in a "free emigrant car," while she was away from her seat warming herself at the stove, it is not neces- sary for her to allege and prove the necessity for leaving her seat; since, if this was negligence, it was, according to the doctrine of the jurisdiction, matter of defense for the defendant to allege and prove.^^^ So, under this rule, in an action by a mother against a street ear company for the killing of her minor son who, in getting off from the car, was run over by a car going in the opposite direction, the plaintiff need not allege that the son could not have seen the car "* Allen County v. Creviston, 133 Similarly see, Pennsylvania Co. v. Ind. 39; s. c. 32 N. E. Rep. 735. Burgett, 7 Ind. App. 338; s. c. 33 "" Cleveland &c. R. Co. v Keely, N. E. Rep. 914 ; rehearing denied in 138 Ind. 600; s. c. 37 N, B. 406. 34 N. E- Rep. 650. •» Chicago &c. R. Co v. Putnam, "= Robinson v. Western Pacific R. 45 Neb. 440; s. c. 63 N. W. Rep. 826. Co., 8 Cal. 409. '"Evansville &c. R. Co. v. Duel, >=' Northern &c. R. Co. v. Hess. 2 134 Ind. 156; s. c. 33 N. E. Rep. 355. Wash. 383; s. c. 26 Pac. Rep. 866. 366 RULES OF PROCEDUKE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. approaching him in time to avoid coming into collision with it, or that he made any effort to avoid such eoUision.^^* Nor, under this rule, is it necessary, in a complaint by a servant for a personal injury by being kicked by an unruly horse of the master, to affirmatively allege that plaintiff did not know or have the means of knowing that the horse was vicious, unruly, and unmanageable, as that is matter of defense."' § 382. When Not Necessary, under Either Rule, to Negative Con- tributory Negligence. — In Indiana, where the burden is put upon the plaintiff to allege and prove his own freedom from contributory negli- gence, an employe, suing his employer for personal injuries, need not, in his complaint, expressly negative negligence on the part of his co- employes. The court, speaking through Berkshire, C. J., said : "The farthest that this court has ever gone, in actions to recover damages for negligence, is to require the plaintiff to affirm in his complaint, by negative averments, that his own negligence did not contribute to the injury. We have gone as far in that direction, probably, as any other court, and to go farther and require the plaintiff to insert in this class of actions other negative averments in his complaint, would place us out of line with all of the authorities."^ ^^ In the same juris- diction, where the action is brought by an administrator of a deceased person to recover, under a statute, damages for wrongfully killing him, it is not necessary to negative contributory negligence on the part of the administrator;^^'' and the rule is the same where the wife of a deceased husband is suing as administratrix.^^' The reason seems to be that the averment would be immaterial, since the law of the jurisdiction does not impute the negligence of the personal repre- sentative, if any existed, to the deceased. Even under the Indiana rule, a complaint is not demurrable because it fails to allege, by a negative averment, that the negligence of the plaintiff did not aggra- vate the damages, — where it nowhere directly alleges that he did not himself contribute to the sickness, loss of time and labor, and paraly- sis, for which he also claims damages.^"" That the rule which re- quires the plaintiff to negative contributory negligence on his part be- comes incapable of application in many situations is well illustrated *^ Augusta &c. R. Co. v. Glover, 92 be imputed to the plaintifE ; but Ga. 132; s. c. 58 Am. & Eng. R. Gas. cited on the point, Knightstown v. 269; 18 S. E. Rep. 406. Musgrove, 116 Ind. 121. "" Donahue v. Enterprise R. Co., '" Indiana Man. Co. v. Millican, 87 32 S. C. 299; s. c. 11 S. E. Rep. 95. Ind. 87. '^ Kentucky &c. Co. v. Hall, 125 ^ Pittsburgh R. Co. v. Burton, 139 Ind. 220; s. c. 25 N. E. Rep. 219. Ind. 357; s. c. 37 N. B. Rep. 150. The court also doubted whether the '=°Ohio &c. R. Co. v. Nickless, 71 negligence of a fellow-servant could Ind. 271. 367 1 Thomp. Neg.] contributory negligence. by a decision of the Supreme Court of Indiana, which has gone as far in requiring the plaintiff to allege and prove his own freedom from contributory negligence as any court has, to the effect that, in an action by a passenger for an injury received by him, while sitting in the defendant's coach, through the train breaking through a bridge, it is not necessary for the plaintiff to negative his own negligence, where it charges that the accident took place by reason of the negligence of the defendant.^^" The reason given for the holding was that the facts averred rebutted the presumption of contributory negligence.^ ^^ In the same jurisdiction a complaint against an innkeeper for loss of a guest's goods need not allege that the loss occurred without fault or negligence of the owner.^^^ The reason is that the innkeeper is prima facie liable as an insurer, and therefore the action does not proceed upon the ground of negligence, but upon the defendant's liability at common law, or, as it was anciently termed, "by the custom of the realm." As the action does not primarily proceed upon the ground of negligence, so, by parity of reasoning, the plaintiff is not bound to plead his own freedom from negligence. ^^^ On a principle already considered,^'* it is not necessary to allege that there was no contrib- utory negligence on the part of the deceased, where the negligence of the defendant which resulted in his death is stated to have been not concurrent with, but subsequent to, that of the deceased. Thus, if the deceased was negligent in falling overboard from a steamboat, and those in charge of the boat were also negligent in not sending a boat to his rescue, whereby he was drowned, they are liable in dam- ages, and his negligence becomes immaterial. In this case it is not necessary to allege a want of contributory negligence, because, if the other facts alleged be proved, the plaintiff will be entitled to recover, although the deceased was negligent; and hence the question of con- tributory negligence in such a state of facts is an immaterial issue.^^^ § 383. Not Necessary to Negative Contributory Negligence in Ac- tions for Willful or Wanton Injuries. — As already seen,^^^ the doe- trine of contributory negligence has no application to cases where the action proceeds on the ground of a willful, wanton, or malicious in- '™ Bedford &c. R. Co. v. Rainbolt, on an elevated railroad, by stepping 99 Ind. 551. from a car and falling to the street '"The court cited: Mitchell v. in the night-time: Kentucky &c. Robinson, 80 Ind. 281 ; s. c. 41 Am. Bridge Co. v. McKinney, 9 Ind. App. Rep. 812; Michigan Southern R. Co. 213; 36 N. E. Rep. 448. V. Lantz, 29 Ind. 528. ^^ Ante, § 230, et seq.; and espe- '^^Bowell V. De Wald, 2 Ind. App. cially § 241. 303; s. c. 28 N. B. Rep. 430. '== Melhado v. Poughkeepsie &c. "= Allegations which sufficiently Trans. Co., 27 Hun (N. Y.) 99. negative contributory negligence in ^'^ Ante, §§ 206, 265. the case of an injury to a passenger 368 KULBS OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. jury. To an action for such an injury the mere negligence of the person injured is no defense. It follows that, in an action for such an injury it is not necessary for the plaintifE to allege that the person injured was without negligence or fault, or in the exercise of due care. The distinction is between mere negligence, carelessness, or inad- vertence, however gross, unless it shows such an utter indifference to consequences as arises to the grade of a wanton injury, and lays a foundation for exemplary damages, — and injuries which are in the nature of active and aggressive wrongs. Where the complaint states a cause of action for an injury of the latter kind, it is never necessary to negative contributory negligence on the part of the plaintiff or the person killed or injured.^^^ It was so held of a complaint grounded upon an injury alleged to have been caused in a "willful, reckless, careless, and unlawful manner ;"^^* though the plaintiff could not re- cover under such a complaint, not averring freedom from contribu- tory negligence, without proving willful injury.^^'' But this decision seems to have been overruled in the same State, the court holding that an allegation in a complaint that the injurious act or omission was willful, reckless, and negligent, is to be regarded as stating a cause of action grounded upon negligence merely, so as to require an averment that the plaintiff or the person receiving the injury was not guilty of contributory negligence.^*" On this principle, it has been held that, in a complaint for willful injury to an animal killed on a railroad track, it is not necessary to show that the owner was without con- tributory negligence, or that the animal was rightfully upon the track.' *^ For the same reason, the absence of contributory negli- gence need not be alleged in a complaint seeking to recover damages for an alleged negligence causing the plaintiff's building to jar and vibrate so as to crack Ihe walls and the plaster, — this being in the nature of a trespass or an aggressive wrong. The reason is that where the circumstances under which the injury took place required no duty of the plaintiff other than to remain passive, it is not necessary that he should allege in his complaint that his own negligence did not con- tribute to the injury.'*^ In one jurisdiction it seems that what is '"Beam v. Chestnut, 120 Ind. 390; "'Chicago fee. :^ Co. v. Nash, 1 s. c. 22 N. B. Rep. 303. Ind. App. 298; s. c. ^7 N. E. Rep. '^ Indiana &c. R. Co. v. Burdge, 94 564. See also Salem v. Goller, 76 Ind. 46. Ind. 291; Norris v. Casel, 90 Ind. "' Indiana &c. R. Co. v. Burdge, 94 143 ; Terre Haute &c. R. Co. v. Gra- Ind. 46. ham, 95 Ind. 286; Chicago &c. R. Co. ""Louisville &c. R. Co. v. Bryan, v. Hedges, 105 Ind. 398; Hanna v. 107 Ind. 51; Belt Railroad &c. Co. Terre Haute &c. R. Co., 119 Ind. 316. v. Mann, 107 Ind. 89. Similarly, see "" Pittsburgh &c. R. Co. v. Welch, Miller v. Miller, 17 Ind. App. 605; 12 Ind. App. 433; s. c. 40 N. B. Rep. s. c. 47 N. B. Rep. 338; Louisville &c. 650. R. Co. V. Ader, 110 Ind. 376. VOL. 1 THOMP. NEG. — 24 OOy I Tliomp. Neg.] contributory negligence. called "gross negligence" on the part of the defendant is regarded as tantamount to willful or wanton negligence for the purposes of the rule under consideration; so that where the complaint exhibits a clearly defined case of contributory negligence, the complaint states no cause of action unless it alleges gross negligence on the part of the defendant.^*^ But if this is the settled doctrine of that jurisdiction, it is to be observed that it is quite exceptional. For the same reason, a plea of contributory negligence to a complaint charging a willful infliction of injury by the defendant, is bad on demurrer.^** In an action against an attorney to recover damages sustained through his negligence in conducting a suit for the plaintiff, the complaint need not allege that the plaintiff was free from fault. The reason is that where the complaint shows the proximate cause of the loss to be the attorney's want of skill or neglect to exercise it, the formal allegation that plaintiff was without fault is unnecessary.^*' For the same rea- son, in a jurisdiction where contributory negligence is an aiBrmative defense, and this defense is pleaded, the plaintiff must, in order to get the defense out of the case, see to it that his complaint alleges wanton, reckless or intentional negligence on the part of the defendant; and he must prove this at the trial. ^*'' § 384. Negativing Contributory Negligence in an Action by a Child. — In an action for personal injuries sustained by a boy nine years of age, the complaint does not show a right of recovery on ac- count of his youth, and consequent irresponsibility, — that is to say, on the ground that he is too young to be guilty of negligence as matter of law, — where the complaint does not proceed upon the theory that he is wholly irresponsible, but alleges in substance that he was not negligent and seeks to excuse him from the imputation of contribu- tory negligence.^*' § 385. What Complaints are Demurrable as Showing Contributory Negligence on their Face. — The governing principle here is that a complaint which carries on its face a clear implication that the plaint- iff or the person killed or injured was guilty of contributory negli- gence, which was the proximate cause of the injury, states the plaintiff out of court, on the principle that no person is permitted to found an action upon his own wrong, or upon the wrong of another person, "^ Mau V. Morse, 3 Colo. App. 359; ""Jones v. White, 90 Ind. 255. s. c. 33 Pae. Rep. 283. '" Jones v. Alabama Mineral R. >« Atlanta &c. R. Co. v. Winn, 93 Co., 107 Ala. 400; 18 South. Rep. 30. Ala. 306. Compare Kansas City &c. "'Lake Shore &c. R. Co. v. Boyts, R. Co. V. Crocker, 95 Ala. 412; s. c. 16 Ind. App. 640; s. c. 45 N. E. Rep. II South. Rep. 262. 812. 370 BtJLES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. through whom he derives his right of jction. If, therefore, the com- plaint in an action to recover damages for the death of an employe shows that the peril to which he was exposed by his employment, and which resulted in his death, was such that he could see and appreciate it, it exhibits contributory negligence in the deceased and states the plaintiff out of court, on a doctrine hereafter considered when dealing with the subject of master and servant, the doctrine of the acceptance by the servant, of the ordinary dangers of his employment;^*® a com- plaint in an action to recover damages for injuries sustained at a rail- way crossing, which alleges that the servant of the defendant negli- gently cut an engine loose from a moving train and left the train to follow the engine across the highway, without any warning of its ap- proach, has been held bad on demurrer, as showing contributory negli- gence on its face, notwithstanding a general averment of an absence of contributory negligence, where it also alleged that the plaintiff watched the engine pass, and afterwards started across the track, not knowing or observing that a portion of the train had been discon- nected and was following;^*" a petition in an action for damages by a passenger who was injured while attempting to alight from a train while in motion, which states that the train slowed up a little before the plaintiff alighted, and further states that it was very dark, does no^ negative the h3^pothesis that the plaintiff attempted to alight from the train under such circumstances that the danger was obvious or apparent and the attempt rash, and consequently shows contributory negligence on its face.^'^" § 386. What Complaints Not Demurrable as Showing Contribu- tory Negligence. — Obviously, if a declaration, complaint or petition, by whatever name called, states a collection of facts which, by fair in- terpretation, show negligence on the part of the plaintiff, or of the person killed or injured, proximately contributing to the accident, the petition will be demurrable, unless the pleader, in some other part of it, explains these facts consistently with the exercise of due care. And this statement must be coupled with the rule that, in construing a pleading, the facts alleged therein, where they admit of doubtful or equivocal inferences, will be taken most strongly against the pleader. On the other hand, it is clear on principle that the plaintiff is not to be turned out of court where he pleads a state of facts which show negligence on the part of the defendant resulting in an injury to the "' Bullivant v. Spokane, 14 Wash. '" Durham v. Louisville &c. R. Co., 577. s. c. 45 Pac. Rep. 42. . 16 Ky. L. Rep. 757; 29 S. W. Rep. ""Indianapolis &c. R. Co. v. Wil- 737. son, 134 Ind. 95; s. c. 33 N. E. Rep. 793. 871 1 Thomp. Neg.] contributory negligence. plaintiff, although such facts may also raise a suspicion of negligence on his part; for it would be a most unjust rule of procedure that would turn a plaintiff out of court upon a mere suspicion or surmise that he had done wrong.^^^ The following averments in declara- tions, complaints, or petitions — by whatever name called — have been held not to render the pleading demurrable as showing contributory negligence: — In an action by a tenant against his landlord for an injury proceeding from the negligence of the landlord in failing to repair the premises, an allegation showing that the tenant knew of the defect and urged the landlord to remedy it, but did not know and was not chargeable with knowledge that the defect rendered the prem- ises dangerous j^^'' in an action against a railway company for an in- jury to a brakeman caused by the breaking of a defective coupling link, an allegation that the defect was "patent and open to the in- spection of the defendant, if an examination of the same had been made," — this allegation not showing contributory negligence in the brakeman in failing to observe the defect ;^°^ in an action by a rail- way employe against the company, for an injury caused by the de- railment of a hand car on which he was riding, an allegation that the car was in a defective condition and wholly unfit for use; that the boxes in the wheels were loose, permitting the wheels to slip in and out of the axles; and that the joints of the lever and all tl^eir parts were loose, — this not conclusively showing that the defects were so patent that the plaintiff ought to have known of them ;^^'* in an action against a railway company for an injury sustained while boarding its train, an allegation that the defendant negligently kept its train in motion while passing a station platform, and required the plaintiff to go on while it was in motion ;^^^ in an action by an employe to recover for a personal injury from the breaking of a platform on which he was shovelling coal for a steam barge, an allegation that he was working under the direction of the mate who caused the platform to be so de- fectively constructed that it fell "without any fault and without any negligence of the plaintiff," — this being sufficient to negative the con- clusion that the plaintiff had knowledge of the defect or any reason- "' In the following case the peti- ^^ The court reasoned that this did tion was held not to show contribu- not help to support the defense of tory negligence on the part of the contributory negligence, — an affirm- plaintlfE: San Antonio &c. R. Co. v. ative defense in that State, — though Jazo, 25 S. W. Rep. 712 (not off. it might impose upon the plaintiff rep.). the necessity of proving more care "^Johnson v. Collins, 98 Ga. 271; on his part than under a different s. c. 26 S. E. Rep. 744. complaint: Fulks v. St. Louis &c. R. ""Louisville &c. R. Co. v. Howell, Co., Ill Mo. 335; s. c. 19 S. W. Rep. 147 Ind. 266; s. c. 45 N. B. Rep. 584. ' 818. '"Gulf &c. R. Co. v. Johnson, 83 Tex. 628; s. c. 19 S. W. Rep. 151. 372 KULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. able means of knowing it;^^" in an action for a personal injury caused by a defective bridge, an allegation that the bridge was obviously de- fective and dangerous continuously for more than a year before the accident, and that the defendant could readily have discovered such condition in ample time to have made repairs, — this not showing neg- ligence in the plaintiff in using the bridge;^" in a jurisdiction where the plaintiff is required to negative in his pleading the conclusion of contributory negligence, and in a complaint for an injury sustained by the negligence of, a railway company in making a "drop switch" on a side track where the plaintiff was unloading lumber from a flat car, an allegation that the injury was caused wholly by the fault and neg- ligence of the defendant, without any fault or carelessness on the part of the plaintiff, — this not being demurrable on the ground that it failed to show that the plaintiff did not know or could not have seen that the cars were approaching ;^°' in a jurisdiction where contribu- tory negligence is an affirmative defense, a complaint alleging that the defendant, a street railroad company "negligently and willfully" permitted its turn-table to be in an unsafe condition, whereby the plaintiff was injured, — the complaint containing nothing to sTiow contributory negligence;^''® in a similar jurisdiction in an action against a railway company for an injury resulting from negligently making an excavation between certain public streets, and permitting the same to be without guards, an allegation that the plaintiff passing along one of said streets fell into the excavation without any fault on his part.^^" § 387. Whether Defense of Contributory Negligence Admissible under General Issue. — In some jurisdictions, and in some even where contributory negligence is matter of defense in respect of which the defendant sustains the burden of proof, — the defense of contributory negligence is admissible under the general plea of not guilty.^'^ Under this rule the fact that the answer sets up a number of defenses '" Behm v. Armour, 58 Wis. 1. ger and was hurt through obeying "" Homan v. Franklin County, 98 the orders of the foreman : Paolo v. Iowa 692; 68 N. W. Rep. 559. Hunter, 3 App. Div. 528; s. c. 73 ™ Chicago &c. R. Co. v. McDaniel, N. Y. St. Rep. 681; 38 N. Y. Supp. 134 Ind. 166; s. c. 32 N. B. Rep. 728; 356. Where a brakeman fell while rehearing denied in 33 N. B. Rep. endeavoring to reach his post of 769. duty on the top of a caboose, in con- "" Bkman v. Minneapolis Street R. sequence of a window negligently Co., 34 Minn. 24. placed near the end of the car: '"' Rathburn v. Burlington &c. R. Louisville &c. R. Co. v. Hobbs, 3 Ind. Co., 16 Neb. 441. Complaints have App. 445; s. c. 29 N. E. Rep. 934. also been held not demurrable as "' Holden v. Liverpool Gas Co., 3 showing contributory negligence on C. B. 1; Saint Anthony Falls Co. v. their face, in cases where an em- Bastman, 20 Minn. 277, 307; Cun- ployg was brought into extreme dan- ningham v. Lyness, 22 Wis. 245. 373 1 Thomp. Neg.J contributory negligence, other than contributory negligence, without pleading contributory neg- ligence specially, does not preclude the defendant from relying on the defense of contributory negligence under his plea of general denial. ^*'- But while the rule of the jurisdiction may allow the defendant to avail himself of the defense of contributory negligence, without pleading it specially, yet there can be no objection to his so pleading it. On the other hand, the practice of pleading this defense specially, and so notifying the plaintiff that it would be relied upon, is commendable. It follows that in such a jurisdiction a special plea of contributory negligence is not demurrable on the ground that the defense is avail- able under the general issue.^^' § 388. Doctrine that Defense Not Admissible Unless Specially Pleaded. — The more usual doctrine, in courts which hold that con- tributory negligence is matter of defense in respect of which the bur- den 'of proof is on the defendant, is that this defense, in order to be available to the defendant, must be affirmatively and specially pleaded ;^^* and this is especially true in those States which have adopted the modern codes of procedure, the spirit of which requires each party to set forth distinctly his ground of action or defense. Where this modern system of procedure prevails, contributory negli- gence is generally regarded as a special defense which is not raised under what would be the general issue at common law, or the general denial under the codes.^^^ This is certainly the only philosophical rule in those jurisdictions; since, where the plaintiff simply charges negligence in the defendant and says nothing about his own negli- gence, a general denial of his allegations, denies only the negligence of the defendant, but does not deny that of the plaintiff. In Missouri, where, as already seen,^°* contributory negligence is matter of defense which must be specially pleaded, the fact that the plaintiff has made, in his petition, the unnecessary averment that he was "without any fault on his part," does not relieve the defendant from the necessity of specially pleading this defense, if he would avail himself of it ; nor is it raised by a general denial, even in such a case.^^^ In that State, ^"2 Cunningham v. Lyness, 22 Wis. the text, Hudson v. Wabash &c. R. 245. Co., 101 Mo. 13; s. c. 14 S. W. Rep. "= Richmond &c. R. Co. v. His- 15; O'Connor v. Missouri &c. R. Co., song, 12 South. Rep. 393; rehearing 94 Mo. 150; Donovan v. Hannibal denied in 97 Ala. 187; s. c. 13 South. &c. R. Co., 89 Mo. 147; Schlereth v. Rep. 209. Missouri &c. R. Co., 96 Mo. 509. ^^Ante, § 366. "'Ante, § 366. "=See Kansas City &c. R. Co. v. "'Hudson v. Wabash &c. R. Co., Crocker, 95 Ala. 412, 427, where the 101 Mo. 13, 29; s. c. 14 S. W. Rep. 15, question is elaborately discussed by overruling on this point Karle v. Walker, J. See also, in support of Kansas City &c. R. Co., 55 Mo. 482. 374 EULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. the failure to plead contributory negligence as an affirmative defense will preclude the submission of the question to the jury, although there may be evidence in the plaintifE's own testimony tending to show it, unless the evidence would enable the court to say that an unavoid- able conclusion of contributory negligence arises out of the plaintiff's own evidence sufficient to defeat the action.^^^ In Texas, on the other hand, no plea of contributory negligence is necessary where plaintiff's petition puts in issue all the facts relied upon by defendant to show the contributory negligence.^®" § 389. Whether the Intoxication of the Plaintiff or of the Person Killed or Injured must be Specially Pleaded. — The intoxication of the plaintiff, or of the person killed or injured, whereby he brought the calamity upon himself, stands upon substantially the same footing as contributory negligence; and hence in those jurisdictions which require the defense of contributory negligence to be specially pleaded, it would seem to follow that the intoxication of the plaintiff, if the defendant intends to rely upon it as a defense to the action, must in like manner be specially pleaded.^'" § 390. What Admitted by Plea of Contributory Negligence. — In Louisiana it is held that a plea of contributory negligence admits an issue of negligence on the defendant's part.^^^ But if this means that a plea of contributory negligence is in the nature of a plea of con- fession and avoidance, admitting the negligence of the defendant, and avoiding it by showing that the plaintiff was also negligent, — then it is unsound and incorrect, unless in a special application to rules of pleading peculiar to particular States. The pleading of contributory negligence as a special defense is not inconsistent with a denial of the negligence of the defendant. The rule of the modern codes which forbids the pleading of inconsistent defenses is therefore not violated by the defendant denying his own negligence and setting up the negli- gence of the plaintiff. Hence, the defendant can not be required to elect between two separate paragraphs of his answer, one of which denies any negligence on his part, while the other sets up contributory negligence on the part of the plaintiff.^'^ A defendant may, then, both traverse the complaint and plead contributory negligence ; but, as ™ Voegeli v. Plckel Marble &c. Co., ™ Bomar v. Louisiana &c. R. Co., 49 Mo. App. 643. 42 La. An. 983, 1206; s. c. 8 South. "•Murray v. Gulf &c. R. Co., 73 Rep. 478; 9 South. Rep. 244; Carter Tex. 2; s. c. 11 S. W. Rep. 125. v. Chambers, 79 Ala. 223. '™ South Omaha v. Cunningham, "' Weingartner v. Louisville &c. 31 Neb. 316; 47 N. W. Rep. 980. R. Co., 42 S. W. Rep. 839; s. c. 19 375 1 Thomp. Neg.] contributory negligence. the defenses are distinct and different, they should be set out in sepa- rate paragraphs of his answer. § 391. Whether a Reply Necessary to a Special Pleading of Con- tributory Negligence. — In those jurisdictions where contributory neg- ligence is an affirmative defense to be specially pleaded, a reply is, in strictness, necessary, in order to make an issue upon that question;"^ though the rule on this subject no doubt varies in different jurisdic- tions. § 392. A Negation of Contributory Negligence does Not State a Cause of Action. — It is scarcely necessary to remind the reader that the negation by the plaintiff of his own contributory negligence in his complaint, does not state a cause of action against the defendant, un- less he states a conclusion of facts from which the negligence of the defendant is to be implied as matter of law.^'* The meaning plainly is that, the fact that the plaintiff was hurt under circumstances of due care and freedom from fault on his part, does not show that the de- fendant brought upon the plaintiff the harm. Article II. Eules of Evidence. Subdivision I. Presumptions as to Contributory Negligence. Section 395. Presumption as to contributory negligence: res ipsa loquitor. No presumption of right-acting in those jurisdictions where burden is on plaintiff. Further of this absence of pre- sumption of right-acting. Still further of this subject. What evidence does not sustain the burden in case of death under this rule. Applications of this rule. 401. Presumption of right-acting and freedom from contribu- 396. 397. 398. 399. 400. Section tory negligence under the rule which puts the burden of prov- ing contributory negligence upon the defendant. 402. No presumption of right-acting where injured person sur- vives and fails to explain. 403. Negligence of defendant not in- ferable from presumption of due care in the person in- jured. 404. Presumption of right-acting at- tends defendant, as well as person killed. Ky. L. Rep. 1023 (not to be rep.). This was an action for damages for injuries to plaintiff's horse caused by defendant's train. The defend- ant filed an answer denying any negligence, and pleading that the collision was caused by plaintiff's negligence or that of his agent or servant. Plaintiff by reply contro- verted contributory negligence after his motion to make defendant elect 376 which defense he would prosecute. It was held that the motion to elect was properly overruled: Weingart- ner v. Louisville &c. R. Co., 42 S. W. Rep. 839; s. c. 19 Ky. L. Rep. 1023 (not to be off. rep.). "° Louisville &c. R. Co. v. Mayfield, 18 Ky. L. Rep. 224; s. c. 35 S. W. Rep. 924 (not to be rep.). "* Becker v. Baumgartner, 5 Ind. App. 576; s. c. 32 N. B. Rep. 786. RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCK. [2(1 Ed. § 395. Presumption as to Contributory Negligence : Res Ipsa Loquitur. — Touching briefly upon a subject which will be fully con- sidered when treating of the general question of evidence of negli- qence, it is to be observed that the mere abstract fact that the plaintiff received an injury or came to his death in some manner, at the bands of the defendant, does not create a presumption of negligence either against the plaintiff or the defendant. ^'° § 396. No Presumption of Eight-Acting in those Jurisdictions Where Burden is on Plaintiff.^ — Under the other rule which, contrary to the teachings of human esperience, and opposed to practical justice, presumes fault on the part of the person killed or injured from the mere fact that he was killed or injured by the fault of the defendant, and which compels the party suing for damages for the death or in- jury to allege and prove that the person killed or injured was without fault, — if a man is killed through the negligence of any one in a place where he had a right to be, and there was no eye-witness to the acci- dent, the court will not assume that he had taken the precautions which a prudent man would have taken for his safety; but, from the fact that the defendant has wrongfully killed him and sealed his mouth as a witness, will presume that his own fault mingled with that of the defendant, and will deny a recovery of damages sustained by reason of his death.^^' This rule seems to allow no play whatever to "' Gulf &c. B. Co. V. Shieder, 88 of negligence In the latter, is unten- Tex. 152; s. c. 28 L. R. A. 538; 30 able: Gilberson v. Bangor &c. R. Co., S. W. Rep. 902; Spears v. Chicago 89 Me. 337; s. c. 36 Atl. Rep. 400. &c. R. Co., 43 Neb. 720; s. c. 62 N. Another court has gone so far in W. Rep. 68. For good illustration, the opposite direction as to hold see Geohegan v. Atlas Steamship that the fact that a person was Co., 3 Misc. (N. Y.) 224; s. c. 51 killed by a railroad train while N. Y. St. Rep. 868; 22 N. Y. Supp. standing on the track, is not of 749. Whatever presumption arises itself conclusive proof of contrlbu- under the rule of res Ipsa loquitur — tory negligence: Broadbent v. Chi- the thing itself speaks — arises only cago &c. R. Co., 64 111. App. 231; s. c. upon an admission in pleadings, or 1 Chic. L. J. Wkly. 246. upon proof of the facts and circum- a This section is cited in § 483. stances under which the accident "" Riordan v. Ocean S. S. Co., 124 took place. Hard and fast rules of N. Y. 655; s. c. 26 N. E. Rep. 1027; law as to when contributory negli- 36 N. Y. St. Rep. 476; 9 Rail. & gence will be presumed from the Corp. L. J. 426; Chicago &c. R. Co. happening of an accident in a given v. Crowder, 49 111. App. 154 ; Ru- sltuation, are not to be commended, dolph v. Montant, 37 App. Div. 396; They have no just place in any sys- s. c. 56 N. Y. Supp. 28; McLane v. tern of jurisprudence except in those Perkins, 92 Me. 39; s. c. 43 L. R. A. States where contributory negli- 487; 42 Atl. Rep. 255; Pittsburgh gence is always presumed unless &c. R. Co. v. Fraze, 150 Ind. 576; the plaintiff avers and proves the s. c. 50 N. E. Rep. 576; HerbeH v. contrary. Therefore, a holding that Southern Pac. Co., 121 Cal. 227 ; s. c. the fact of a mere collision between 41 Am. & Eng. Rail. Cas. (N. S.) a railway train and one driving on 94; 53 Pac. Rep. 651; Neumeister v. a highway is prima facie evidence Eggers, 29 App. Div. 385; s. c. 51 377 1 Thomp. Neg.] contributory negligence. the presumption of right-acting or to the presumption, based upon human experience, that a man will, in the presence of danger, act in accordance with the instinct of self-preservation; but "when the cir- cumstances point as much to the negligence of the deceased as to its absence, or point in either direction, a nonsuit should be granted;"' and this, although the defendant may have been negligent or may, have brought about the conditions which caused the death by his un- lawful act.^''' Under this rule we have three ingredients from which the law makes up its judgment : 1. The negligence or other wrong of the defendant, established, admitted, or proved by evidence sufficient to take the question to the jury. 2. The deceased, killed in part at least by this negligence or wrong, so that he can not testify as to the manner in which he received the injury. 3. The imagination of the courts, complacently indulged in for the benefit of corporations, op- posed t'o the presumption that men act rightly instead of wrongly; opposed to the conclusion that men will exercise care in pursuance of the instinct of self-preservation; opposed also to ordinary human ex- perience ; opposed, moreover, to the manner in which juries will reason in nearly all cases. Out of these ingredients the rule under consider- ation constructs the conclusion that the plaintiff ought not to recover. The widow and children starve because the deceased is imagined to have done wrong, and the corporate wrong-doer goes scot free. § 397. Further of this Absence of Presumption of Eight-Acting. — Under this rule the burden rests upon the plaintiff — notwithstanding the evidence may be, from the very nature of the case, unattainable — to prove affirmatively that the deceased was not guilty of negligence, contributing to his own death.^''^ Some courts state the rule by say- ing that it would be presumed where a person is killed upon a railway track by a passing train, and the evidence does not disclose the cir- cumstances attending his death, that he was guilty of contributory negligence.^'" Even in a jurisdiction where the burden is upon the defendant to prove, contributory negligence, it has been held that the N. Y. Supp. 481; Barton v. Kirk, Reynolds v. New York &c. R. Co., 157 Mass. 303; s. c. 31 N. E. Rep. 58 N. Y. 248; Hoag v. New York &c. 1072; Lauster V. Chicago &c. R. Co., R. Co., Ill N. Y. 199; Bond v. 43 111. App. 534. Smith, 113 N. Y. 378. "' Wiwirowski v. Lake Shore &c. "^ Pennsylvania Co. v. Finney, 145 R. Co., 124 N. Y. 420; s. c. 36 N. Y. Ind. 551; s. c. 42 N. E. Rep. 816; St. Rep. 405; reversing s. c. 58 Hun Gulf &c. R. Co. v. Riordan (Tex. (N. Y.) 40; s. c. 26 N. E. Rep. 1023; Civ. App.), 22 S. W. Rep. 519 (not 33 N. Y. St. Rep. 666; 11 N. Y. Supp. off. rep.). 261; McDonald v. Long Island R. ""Pittsburgh &c. R. Co. v. Fraze, Co., 116 N. Y. 546, 550; Dobbins v. 150 Ind. 576; s. c. 50 N. E. Rep. Brown, 119 N. Y. 188; Cordell v. 576. New York &c. R. Co., 75 N. Y. 330; 378 RULES OF PROCEDURE IX CONTRIBUTORY NEGLIGENCE. [2d Ed. fact that one is injured at a railway crossing will raise a presump- tion that he failed to look and listen, or failed to take such precaution as would have enabled him to see or hear the approaching train. ^.'"' Other courts deduce the conclusion of contributory negligence from the circumstances surrounding the accident, and the ability of a per- son in the situation of the deceased to discover the danger and to avoid it by the exercise of reasonable care. Thus, where a person was run over by a train while walking upon a railway track, it was pre- sumed that he observed the approach of the train, or that he would have observed it if he had listened and looked where the train was in fact observable for a distance of fifteen or twenty rods away.^*^ As we shall see in the next paragraph, some courts raise exactly the opposite presumption in such a case, relying upon the natural instinct of self- ■ preservation as evidence to negative the conclusion of contributory negligence. Still other courts, in jurisdictions where the burden of showing a freedom from contributory negligence is on the plaintiff, hold that if the facts and circumstances surrounding the accident reasonably tend to the conclusion that it might have occurred without negligence on the part of the deceased, the question will become a question of fact for the jury, although there were no eye-witnesses of the accident.^*^ § 398. Still Further of this Subject. — These two rules of procedure are brought into the clearest contrast by a class of cases which have arisen where death has resulted from an accident in the night-time, or under obscure circumstances, or in the entire absence of eye-witnesses, as is frequently the case where a person is killed by a train upon a rail- way track. In such cases, under the rule which casts the burden upon the plaintiff of proving a want of contributory negligence on the part of the person killed, if the circumstances are such that the death '^ Herbert v. Southern &c. Co., 121 the severe doctrine applicable to cir- Cal. 227; s. c. 11 Am. & Eng. R. Cas. cumstantlal evidence on the trial of (N. S.) 94; 53 Pac. Rep.^ 651. indictments for murder, that, in "' Lamport v. Lake Shore &c. R. order to charge a township with Co., 142 Ind. 269; s. c. 41 N. E. Rep. responsibility for the death of one 586. driving over one of its roads, ''=Beckwith v. New York &c. R. who was found beside his ve- Co., 125 N. Y. 759; s. c. 54 Hun (N. hide with his neck broken, negli- Y.) 450; s. c. 28 N. Y. St. Rep. 130; gence on the part of the township, 7 N. Y. Supp. 721; Wall v. Delaware and a freedom from it on the part &c. R. Co., 125 N. Y. 757; s. c. 54 of the deceased, must be established Hun (N. Y.) 454; s. c. 28 N. Y. St. in the absence of eye witnesses, by Rep. 132; 7 N. Y. Supp. 709; Noble evidence of circumstances so strong V. New York &c. R. Co., 20 App. that it negatives any other infer- Div. 40; s. c. 46 N, Y. Supp. 645. ence: Stringert v. Ross Township, Following the swinging of the judi- 179 Pa. St. 614; s. c. 39 W. N. C. 481; cial pendulum to the other extreme, 27 Pitts. L. J. (N. S.) 399; 36 AtL we iind that one court lays down Rep. 345. 379 1 Thomp. Nog.] CiiNTKIBUTOEY NEGLIGENCE. might as well have happened from the negligence of the deceased as from that of the defendant, there can be no recovery.^ ^^ If the courts which adhere to this rule do not allow any presumption of right-acting on the part of the deceased to turn the scale, so far as this presump- tion is allowed play it operates in favor of both parties. In such a case the mere happening of the accident does not raise a presumption of negligence, either against the decedent,^*** or against the author of the catastrophe,^*'' — let us say the railway company — unless outside of the mere fact of the accident there are attending circumstances suffi- cient to raise it.^*'' If, therefore, different inferences as to due care on the part of the plaintiff are deducible from the facts which appear, the plaintiff has not sustained the burden of proof resting upon him to show that fact.^^^ § 399. What Evidence Does Not Sustain the Burden in Case of Death, Tinder This Rule. — Under this rule, the plaintiff must then, where the action is to recover damages for the negligent killing of a human being, produce some affirmative evidence — either the testimony of eye-witnesses, or evidence as to the circumstances surrounding the accident — from which a Jury might fairly and reasonably be allowed to conclude that the person killed was in the exercise of reasonable care for his own safety at the time, — or (stating it negatively) that he was not guilty of negligence contributing to his own death. Applying this rule, the following circumstances have been held not sufficient to take to the Jury the question whether the deceased was in the exercise of reasonable care at the time when he was killed : — Evidence tending to show that the deceased, while employed as a brakeman on a freight train, started on a dark night along the top of the train while it was in '"^ Dorr V. McCullough, 8 App. Div. gence arises against a railroad com- 327; s. c. 40 N. Y. Supp. 806. pany in an action by an employs ^*' Pennsylvania R. Co. v. Middle- for a personal injury allowed to town, 57 N. J. L. 154; s. c. 31 Atl. have been occasioned by the negli- Rep. 616. gence of a co-employ6 can arise until '^ Johnston v. East Tennessee &c. the plaintiff has affirmatively shown R. Co., 30 S. W. Rep. 415; s. c. 17 that he himself was free from fault: Ky. L. Rep. 6. Florida &c. R. Co. v. Burney, 98 Ga. '*« While the burden may be dis- 1; s. c. 26 S. E. Rep. 730; 6 Am. & charged by showing surrounding Eng. Rail. Cas. (N. S.) 543. The facts or circumstances from which fallacy of this reasoning consists in the jury can infer the absence of the conception that in proving him- such negligence, there must be at self to have been free from fault, least affirmative evidence to justify the plaintiff proves the defendant to such inference: Ryan v. N. Y. &c. have been in fault, when both may R. Co., 17 App. Div. 221; s. c. 45 have been free from fault, and the N. Y. Supp. 542. hurt which the plaintiff received "' Mosher v. Smithfleld, 84 Me. may have been properly ascribed to 334; s. c. 24 Atl. Rep. 876. The Su- mere casualty or unavoidable acci- preme Court of Georgia has rea- dent, soned that no presumption of negli- 380 RULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. motion, to see if it had broken apart at any point, and that his dead body was afterwards found on the center of the track, bearing indica- tions that he had fallen and had alighted on his feet, and had then been run over by a detached portion of the train ;^*^ evidence tending to show that the deceased, a railway brakeman, when last seen alive, was stooping to avoid an overhead bridge, and was found, after pass- ing over another overhead bridge which was reached in fifteen or twenty seconds, lying on the top of the car with a soft spot on the back of his head; that he had frequently been over the road, and that, al- though there was a gap in the "telltales" between the two bridges, it was held possible that he might not have seen them, or might not have been struck by them if he had risen to a standing posture before reach- ing them;^*' evidence tending to show that a brakeman's head might have reached an overhead bridge, and that his body was found just beyond the bridge, and that the train on which he was had passed under the bridge in rounding a curve at a high rate of speed, and that there was some dandruff in his hat, — this being not sufficient to sup- port the finding that he was killed by striking the bridge and not by falling from the train ;^°'' evidence tending to show that an inspector of an electric light company was killed by an electric shock while re- pairing a lamp, and in the absence of any eye-witnesses, his body hav- ing been found in such a position relatively to the lamp as to indicate that when he received the shock he was standing on the ground, which position he knew from experience and warning to be highly dangerous, and there being no evidence of any defect in the insulated stool which he carried to which the accident might have been attributed, if he had stood upon it and not upon the ground ;^®^ evidence tending to show that a brakeman was found dead upon the track with his face bruised, and that his cap was at the foot of a tree beside the track, — this not being sufficient to show that he was killed by striking the tree while attempting to operate the brake in the absence of any evidence that he touched the brake, and the evidence showing that he had been in- structed that the brakes were not to be turned until the train reached another point. ^"^ "« Geyette v. Fitchburg R. Co., 162 "^ Manning v. Chicago &c. R. Co., Mass. 549; s. c. 39 N. E. Rep. 188. 105 Mich. 260; s. c. 63 N. W. Rep. "" Murphy v. Boston &c. R. Co., 312 ; 2 Det. L. N. 109. Evidence in- 167 Mass. 64; s. c. 44 N. E. Rep. suflScient to negative the conclusion 1087. of contributory negligence in an "" Donald v. Chicago &c. R. Co., action for death from a collision 93 Iowa 284; s. c. 61 N. W. Rep. 971. with a train at a highway crossing: '" Dixon V. Louisiana Electric Dubois v. New York &c. R. Co'., 88 Light &c. Co., 47 La. An. 1147; s. c. Hun (N. Y.) 10; s. c. 68 N. Y. St. 17 So. Rep. 696. Rep. 158; 34 N. Y. Supp. 279. 381 1 Thomp. Neg.] contributory negligence. §400. Applications of this Rule. — The applicability of this rule to some situations seems entirely reasonable; in others it shocks the ordinary sense of justice. For example, it was a reasonable conclu- sion that the failure on the part of the plaintiff to show freedom from contributory negligence ought to preclude a recovery in an action against an employer for the drowning of an employe, who, with others, started across a body of water to their place of work in an old punt, which had a crack in one side, calked with waste, and a part of one end split off, — all having been drowned before reaching their destina- tion, there being no evidence speaking directly upon the cause or man- ner of the accident. ^°^ Here the danger was entirely open, visible, and apparent to the ordinary understanding. The same can not be affirmed of the conclusion of a court in New York that the plaintiff in an action for damages for the death of a night watchman, employed about a building in process of construction who was mor- tally hurt by the falling of a brick from an upper story soon after his arrival at his post of duty, must prove active vigilance on his part, he being fully aware of the condition of the premises and the possible danger.^"* Another court has held, with a clear sense of justice, that "^McLane v. Perkins, 92 Me. 39; s. c. 43 L. R. A. 487; 42 Atl. Rep. 255. ™ Neumelster v. Eggers, 29 App. Div. 385; s. c. 51 N. Y. Supp. 481. A similar obtuseness of justice re- sulted in the conclusion that there could be no recovery for the death of a person killed by a train on an elevated railroad track while the decedent was engaged in painting a superstructure, where there was no evidence that he was seen by any person in .charge of the train until he was struck, and it plainly ap- peared that he could see the train for a considerable distance from where he was struck: Pallett v. Kings County &c. R. Co., 126 N. Y. 630; s. c. 27 N. B. Rep. 410; 10 N. Y. Supp. 691. The conclusion from the facts of this case is that the plaintiff, while absorbed in his work, and not attentive to the ap- proach of the train, was struck and killed by it. On the other hand, the engineer driving the train, under an affirmative duty to look out for persons on the track ahead of him, evidently failed to discharge that duty, and committed a wrong which, under principles already ex- amined (ante, §§ 232, 236, 239), was the ■proximate cause of the injury. 382 The court denied in favor of the preservation of human life, the ap- plication of the doctrine that per- tains to inanimate property, — such as the ass of Davies, negligently left hoppled in the highway (Davies v. Man, 10 Mees. & W. 546; s. c. 2 Thomp. Neg., 1st ed., 1105); or the hogs of Kerwhacker, straying upon the railway track (Kerwhacker v. Cleveland &c. R. Co., 3 Ohio St. 172; s. c. 1 Thomp. Neg., 1st ed., 572). What evidence in New York was insufficient to show contributory negligence in the case where a per- son was killed by a backing engine while attempting to, cross certain railway tracks immediately after the passage of a train: Donohue v. Lake Shore &c. R. Co., 47 N. Y. St. Rep. 161; 19 N. Y. Supp. 961. An almost delirious conception was that the fact that the owner of land was not a resident of the State was sufficient to preclude an inference of his contributory negligence In failing to stop a fire doing damages upon his land, which fire had been set by the negligence of another per- son: Tien v. Louisville &c. R. Co.. 15 Ind. App. 304; s. c. 44 N. E. Rep. 45. As though a non-resident is not under the same duty of protecting his land from fire as a resident is, KULE8 OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d. Ed. a person upon a street can not be presumed negligent in touching an electric wire, a shock from which has resulted in his death, where there is nothing to show the circumstances under which he came in contact with it, and nothing to show that he knew that the wire was not properly insulated, or that it was charged with electricity where it was upon a reel fastened to an electric light pole in a street, so near the ground as to be within easy reach.^'^ § 401. Presumption of Right-Acting and Freedom from Contribu- tory Negligence under the Rule which Puts the Burden of Proving Contributory Negligence upon the Defendant.* — Under the rule of those jurisdictions which make contributory negligence an affirmative defense, to be averred and proved, if the negligence of the defendant appears as a factor in the accident, but there is no evidence which speaks one way or the other with reference to the contributory negli- gence of the person killed, then it is presumed that there was no such negligence. This presumption is a part of the ordinary presumption of right-acting, which, though most frequently applied in the ease of public officers, applies also in the case of private individuals. It is based upon ordinary experience, upon the known disposition of men, acting in pursuance of the natural instinct of self-preservation, to save themselves from harm.^'®^ In jurisdictions where this rule pre- vails, it may be stated to be the established doctrine that, if the negli- gence or unlawful conduct of the defendant has created the condition which gave room to the accident, and there is no evidence tending to show whether or not the person killed was guilty of contributory negli- gence, the most favorable view for the defendant will leave the ques- tion to the jury, — as where a person is killed by a passing train while driving a team upon a railway grade crossing under circumstances more or less obscure. Here no presumption arises from the mere which duty, if he chooses to reside v. Griffith, 159 U. S. 603; s. c. 40 L. abroad, he must perform through a ed. 274; Grand Trunk R. Co. v. Ives, local agent. 144 U. S. 408; s. c. 36 L. ed. 485; "= Suburban Electric Co. v. Nu- Connerton v. Delaware &c. Canal Co., gent, 58 N. J. L. 658; s. c. 32 L. R. 169 Pa. St. 339; s. c. 26 Pitts. L. J. A. 700; 34 Atl. Rep. 1069. (N. S.) 77; 32 Atl. Rep. 416; Crum- a This section is cited in § 483. ley v. Cincinnati &c. R. Co., ""Denver Tramway Co. v. Raid, 12 Ohio C. C. 164. It is need- 4 Colo. App. 53; s. c. 35 Pac. less to say that where this rule Rep. 269; Texas &c. R. Co. v. prevails, the plaintiff in an action Gentry, 163 U. S. 353; s. c. for the wrongful killing of her son 41 L. ed. 186; 16 Sup. Ct. is not bound to prove his freedom Rep. 1104; Martin v. Baltimore &c. from contributory negligence by a R. Co., 2 Marv. (Del.) 123; s. c. 42 preponderance of the evidence: Atl. Rep. 442; Norton v. North Car- Heckle v. Southern Pac. Co., 123 olina R. Co., 122 N C. 910; s. c. 29 Cal. 441; s. c. 5 Am. Neg. Rep. 298; S. E. Rep. 886; Baltimore &c. R. Co. 56 Pac. Rep. 56. 383 1 Thomp. Neg.] contributory negligence. fact of the collision that the deceased did not look or listen, or that he rode heedlessly or purposely to his death j^"^ or where the defendant has created a nuisance in the highway, in endeavoring to pass which a person is killed, no one seeing the accident.^*^ In such a ease the de- ceased will be presumed to have been free from contributory negli- gence if the circumstances under which he was found after the acci- dent are as consistent with that presumption as with the presumption of contributory fault. ^"^ This rule was applied with the conclusion that there could be no nonsuit in the case where a farmer, while driv- ing across a railroad crossing, was struck and killed by a wild engine coming round a curve at an excessive rate of speed and without giving any warning signals. Here, there was negligence on the part of the defendant, and the evidence being blank as to the negligence of the deceased, the case went to the jury.^"" The presumption that the deceased was, at the time of the accident, in the exercise of ordinary care, has been treated as an artificial presumption of so weak a charac- ter that it is not to be allowed to have the effect of evidence before the jury, where the uncontradicted evidence of the circumstances attend- ing the accident overthrows it. For example, where the evidence dis- tinctly showed that the deceased was killed in consequence of volun- tarily jumping from a moving train, not being directed by the con- ductor to do so, and his faculties not impaired by any appearance of danger, — it was held that the case ought to be taken from the jury, notwithstanding the operation of this presumption. Mr. Chief Justice Horton said: "It is urged, however, that the case ought not to be taken from the jury because the presumption is that the de- ceased, at the time he was injured, was in the exercise of due care. It is true that the jury may infer ordinary care and diligence on the part of an injured person from the love of life, or the instinct of self- preservation, and the known disposition of men to avoid injury. But in this case the presumption that the deceased was in the exercise of due care is overcome by proof to the contrary ; and this appears, with- out any conflict of evidence, from the plaintiff's own case."^°^ Al- '" Gugenheim v. Lake Shore &c. careful, and exercising due care a R. Co., 66 Mich. 150; s. c. 9 West, few minutes before his death. It Rep. 903; 33 N. W. Rep. 161. was held that the question of due "'Buesching v. St. Louis Gas care on his part was for the jury: Light Co., 73 Mo. 219; Lillstrom v. Missouri Furnace Co. v. Abend, Northern &c. R. Co., 53 Minn. 464; 107 III. 44; s. c. 47 Am. Rep. 425. s. c. 55 N. W. Rep. 624; 20 L. R. A. ""Phillips v. Milwaukee &c. R. 587; Reichla v. Gruensfelder, 52 Mo. Co., 77 Wis. 349; s. c. 46 N. W. Rep. App. 43; Crumpley v. Hannibal &c. 543; 9 L. R. A. 521. R. Co., Ill Mo. 152; s. c. 19 S. W. =■" Lyman v. Boston &c. R. Co., 66 Rep. 820. In Illinois, where it is N. H. 200; s. c. 20 Atl. Rep. 976; uncertain which rule prevails, a 11 L. R. A. 364; 45 Am. & Bng. R. railroad locomotive engineer, killed Cas. 163. by defects in a footboard, was '" Dewald v. Kansas City &c. R. shown to have been competent and Co., 44 Kan. 586, 590. 384 RULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. though it may seem illogical to take any case from the jury, on the ground of contributory negligence, where there is a presumption of law against contributory negligence, — yet nothing is better settled than that this ought to be done where the evidence of contributory neg- ligence is clear and arises out of the plaintiff's own case.^"^ § 402. No Presumption of Right-Acting Where Injured Person Survives and Fails to Explain. — Where the person injured survives and retains his memory and faculties and fails to explain how the in- jury took place, then there is room for the play of another presump-, tion, which is that where it is within the power of a party to produce evidence, but he fails to produce it, it will be presumed that if he had . produced it, it would have been unfavorable to him. This presump- tion usually arises in the case where a party has destroyed or sup- pressed documentary evidence, in which case the maxim of the law is omnia praesumuntur contra spoliatorem. This principle seems to have influenced one court so far as to lead it to make this distinction : that where the injured person dies and the circumstances surrounding the injury, in so far as they speak on the question of his contributory negligence, do not clearly and certainly appear, the natural instinct of self-preservation, which leads all rational people to avoid injury to their persons as far as possible, is a circumstance which it is proper for a jury to consider.^"^ But where the injured person survives and retains his faculties so as to be able to give evidence as to the circum- stances surrounding the accident, then that court reasons that "there is no reason why the inference arising from the instinct of self-pres- ervation should be indulged."^"* That court has, accordingly, held it error to instruct the jury, in such a ease, that "the natural instinct which leads all rational persons to avoid injury to their persons, as far as possible, is an element of evidence proper for the consideration of the jury, with all the outstanding circumstances introduced as evi- dence, on the question whether the plaintiff was or was not, at the time of his injury, exercising ordinary care and prudence."^"^ The conclusion of the Iowa court can not possibly be vindicated on the grounds on which the court puts it. It is certainly proper, in deter- mining any issue of fact, where the evidence leaves room for different inferences, for the jury to consider every circumstance bearing upon '^Ante. § 369; post, §§ 432, 483. lavy v. Chicago &c. R. Co., 66 Iowa ^"'Greenleaf v. Illinois &c. R. Co., 435; Whitsett v. Chicago &c. R. Co., 29 Iowa 14; Way v. Illinois &c. R. 67 Iowa 150. Or where the testi- Cc, 40 Iowa 341. mony otherwise discloses what he ^ Ellis v. Leonard, 107 Iowa 487 ; did : St. Louis &c. R. Co. v. Whittle, s. c. 78 N. W. Rep. 246. 74 Fed. Rep. 296; s. c. 40 U. S. App. *» Reynolds v. Keokuk, 72 Iowa 23; 20 C. C. A. 196. 371; s. c. 34 N. W. Rep. 167; Dun- VOL. 1 THOMP. NEO. — 25 385 1 Thomp. Neg.] contributory negligence. the issue one way or the other, rendering the one conclusion or the opposing conclusion the more probable. Nor can a court make a rule of law that the jury are not to consider the effect of the instinct of self-preservation in inducing the plaintiff or person injured to avoid exposing himself to injury, because this excludes from their minds a proper and relevant circumstance, which is a fair subject of argument to them. If the injured person survives, this presumption plainly supports his testimony that he acted with reasonable care; if he dies, and the circumstances surrounding the accident are uncertain or ob- scure, this presumption negatives the conclusion of contributory neg- ligence. But in a case where the plaintiff survives, it might be error, for a different reason, to give the instruction condemned by the Iowa court. It might be error for the reason that it has the effect of singling out a certain element in the evidence and directing the atten- tion of the jury especially to that. Certainly, some theories of jury trial would condemn it as an argumentative instruction — an instruc- tion upon the weight of the evidence, and one which has the effect of making an argument to the jury which is properly left to counsel. § 403. Negligence of Defendant not Inferable from Presumption of Due Care in the Person Injured.^^ — The law does not allow one pre- sumption to be tacked upon another so as to make out a proposition of fact upon which a cause of action or a defense depends.^"' Upon this subject it has been said : "In the first place, as the very foundation of indirect proof is the establishment of one or more facts from which the inference is sought to be made, the law requires that the latter should be established by direct evidence, in the same manner as if they were the very facts in issue."^"^ Quoting this language, it was said by the Supreme Court of Pennsylvania, speaking through Mr. Justice Strong, that whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved, and not themselves presumed.^"* The following instruction to a jury given by Mr. Justice Thompson was, therefore, explicitly approved: "That as proof of a fact, the law permits inferences from other facts proved, but does not allow pre- sumptions of fact from presumptions. A fact being established, other facts may be and often are ascertained by just inferences. Not so with a mere presumption of fact — no presumption can, with safety, be drawn from a presumption: there being no fixed or ascertained fact from which an inference of fact might be drawn, none is to be a This section is cited in § 404. proval by Mr. Justice Strong in ^ Philadelphia &c. R. Co. v. Hen- Douglass v. Mitchell, 35 Pa. St. 440, rice, 92 Pa. St. 431; Douglass v. 446. Mitchell, 35 Pa. St. 440. ^ Douglass v. Mitchell, 35 Pa. St. ^ Stark. Ev. 57; quoted with ap- 440, 446. 386 RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed, drawn."^"* To illustrate this principle^ it was held, in a case where a child of tender years temporarily escaped from its mother and was run over by a street car, that it was not competent to prove that the railroad company worked its drivers from seventeen to eighteen hours a day, for the purpose of creating the presumption that, by reason of exhaustion they were unable to keep a sharp lookout and perform their duties properly ; from which presumption an inference might be drawn that the driver was negligent in the particular case. But the court stated that, for the purpose of showing negligence, it was com- petent to prove the condition of the driver at the time of the accident, — that he was intoxicated, or absent, or for any other reason incompe- tent to attend to his duties. In giving the opinion of the court, Paxson, J., said : "When a fact is established in a cause by evidence, the jury may properly be allowed to draw therefrom such inferences as are logically deducible from it. Thus, if it be shown that the driver was asleep or intoxicated at the time of the accident, a pre- sumption of negligence would properly arise. But the fact from which such inference is to be drawn must be first established. It will not do to presume that he was in the condition referred to from some remote fact in no way connected with the case, and upon this presump- tion base the additional presumption of his negligence. This would be to found a presumption upon a presumption, which is never al- lowed. A presumption should always be based upon a fact, and should be a reasonable and natural deduction from such fact."^^" For another example, where the accident results in death, and the evidence as to how it happened is so obscure that it speaks neither on the question of negligence nor on that of contributory negligence, then the negligence of the defendant can not be proved, so as to make out a case, by assuming, as a basis of reasoning, that the deceased was in the exercise of due care, and by reasoning that, as the deceased was in the exercise of due care, if the defendant had been in the ex- ercise of due care the accident would not have happened.-^^ § 404. Presumption of Right-Acting Attends Defendant, as well as Person Killed. — This presumption of right-acting can not be appro- priated by one party to his advantage, and denied to the other party : it attends the defendant as well as the person killed. When, there- fore, the circumstances attending the accident are so obscure as not to speak with any degree of certainty upon the question whether the ™ Douglass V. Mitchell, 35 Pa. St. ""' Yarnell v. Kansas City &c. R. 440, 443, 447 (Woodward, J., dis- Co., 113 Ho. 570, 580; s. c. 21 S. W. senting). Rep. 1; 18 L. R. A. 599. =" Philadelphia &c. R. Co. v. Hen- rice, 92 Pa. St. 431, 433. 387 1 Tliomp. Neg.J contributory negligence. accident which resulted in the death of the deceased was due to his own negligence, to the negligence of the defendant, or to mere casualty, the court must enter a nonsuit or direct a verdict for the defendant, according to its practice ; and this for the sufficient reason that, laying out of view the question of the contributory negligence of the deceased, there is no evidence of negligence on the part of the defendant.^ ^^ This rule has been applied in a case where a man was killed under un- known circumstances at a railroad crossing where there was no obli- gation to give signals ;^^^ and where a man was found dead in a hole in the defendant's mill, which contained water six feet deep, and there were no facts from which the manner in which he met his death could be determined.^ ^* AVhile cases are met with in which this principle was plainly misapplied,^ ^' yet the principle itself is sound and of great practical importance; otherwise in these obscure cases, the jury would be allowed, for the purpose of discovering negligence in the defendant, to presume that the deceased was free from negli- gence, while denying the same presumption to the defendant, which we have seen can not be done;^^° and judgments would constantly be entered on verdicts resting on mere conjecture and surmise. ^^'^ This does not at all exclude the conclusion that a man may be killed leav- ing no eye-witness to the accident, and yet the circumstances attending it may so plainly indicate negligence on the part of the defendant and reasonable care on the part of the deceased that damages may be re- covered for his death. It was so held where a laborer, employed in unloading grain from a railroad car, was killed by means of other cars being driven violently against the car about which he was at work; where it was shown to have been a part of his duty to sweep into the hoppers the lost grain which had fallen on or near the track ; and where, just before the accident, he had been dismissed from an- other part of the work and took a broom and disappeared, and after the accident his body was found on the track with the broom. The court, speaking through Devens, J., reasoned thus: "In the case at bar the cars were in a building not belonging to the defendant, and were fixed there for the purpose of being unloaded. The laborers had a right to conduct that work as it was usually done, without watching constantly lest a train should be driven in, and upon the assumption '1= Freeh v. Philadelphia &c. R. ville &c. R. Co. (Ky.), 20 S. W. Rep. Co., 39 Md. 574. 819 (not ofC. rep.). ^" Among many cases illustrating ^° Ante, § 403; Yarnell v. Kansas this is: Northern Central R. Co. City &c. R. Co., 113 Mo. 570. V. State, 54 Md. 113. ''" For other cases more or less ''" Sorenson v. Menosha &c. Co., illustrating the principle, see Hinck- 56 Wis. 338. ley v. Cape Cod R. Co., 120 Mass. ™ Such was Wintuska v. Louis- 257 ; with which compare Maguire v. Fitchburg R. Co., 146 Mass. 379. 388 RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. that proper notice would be given of an incoming train. If^ after the collision, the body of one of the men standing upon the cars and engaged in shoveling the grain had been found upon the ground, as if thrown down, there would have been sufficient evidence of due care, from his employment when the collision took place. The presence of the deceased on the track with his broom, as shown by the discovery of his body there, affords evidence that he was there for the purpose of sweeping. Whether he had actually begun or not is not important, if he was there for the purpose of commencing as soon as practicable. He had been dismissed elsewhere, and the sweeping the track was in the line of his duty. He was not bound, any more than the shovelers, to watch for approaching trains, but had the right to believe that the laborers upon the cars, or engaged in removing the loose grain, would not be disturbed without proper notice. The jury might well have believed that he was on the track in the performance of his duty, and in the exercise of all the care to be expected of a prudent man. If rightfully in the place of danger, it is not contended that he had any opportunity to escape. The case is quite distinguishable from those cases where it has been held that the disclosure of the facts has been so limited that there could be no fair inference that the plaintiff was in the exercise of due care, or that the evidence was equally consistent with care or negligence on his part. If the only negligence of which the deceased could be guilty must have been that he was on the track with no rightful purpose, or under such circumstances that a prudent man would not have been there, and if the evidence and the infer- ences to be drawn from it do not show affirmatively otherwise, the issue of due care may be sustained. * * * The case differs from that class of cases in which it is necessary to show some positive act on the part of the plaintiff in order to prove that he was in the exercise of due care. The plaintiff's intestate had a right to believe, if engaged in any labor connected immediately with unloading cars, that he would not be interfered with by a reckless incursion of the trains of the defendant. We are therefore of the opinion that the inquiry whether the plaintiff was in the exercise of due care should have been submitted to the jury."^^^ ="»Maguire v. Pitchburg R. Co., 146 Mass. 379, 383; s. c. 6 N. Eng. Rep. 33; 15 N. E. Rep. 904. 389 1 Thomp. Neg.] contributory negligence. Subdivision II. Other Questions of Evidence and Burden. of Proof. Section 406. Theories as to shifting the bur- den of proof on the issue of contributory negligence. 407. Circumstances under which burden of proof as to contrib- utory negligence shifts from plaintiff to defendant. 408. Intoxication of plaintiff does not shift burden of proof as to contributory negligence from defendant to plaintiff. 409. Burden as between moving ves- sels in case of collision. 410. Burden of proof in other cases of the collision of vessels. 411. Burden where vessel collides with a pier. 412. Where both vessels have op- portunity to maneuver, both deemed at fault. 413. What proof sustains the bur- den when on plaintiff. 414. Due care may be shown by cir- cumstantial as well as direct evidence. Section 415. What proof does not sustain the burden when on plaintiff. 416. What circumstances tend to show freedom from contrib- utory negligence in case of death. 417. What proof sustains the bur- den when on the defendant. 418. When plaintiff, to avoid de- fense of contributory negli- gence, must prove "wanton" negligence on part of de- fendant. 41S. Burden on plaintiff to remove presumption of contributory negligence raised by his own testimony. 420. Relevancy of evidence on ques- tions of contributory negli- gence. 421. Relevancy of evidence in par- ticular states of the plead- ings. § 406. Theories as to Shifting of the Burden of Proof on the Issue of Contributory Negligence. — Many of the theories as to shifting of the burden of proof are inaccurate, and furnish merely the means of befogging and misleading juries. Two rules are believed to be sound, the adherence to which would obviate many difficulties: 1. Where the law definitely establishes the burden of proof as to a given propo- sition, the fact that the person who does not sustain it assumes it by a mistake in his pleading, does not require him to maintain it at the trial. For example, in a jurisdiction where the burden of proving contributory negligence is put by law upon the defendant, it is not shifted to the plaintiff by an averment in his complaint that he was exercising due care at the time of the accident.^ ^' 2. The burden of proof never shifts so long as the evidence is directed to the same proposition of fact. But where the party sustaining the burden of proof produces no substantial evidence in affirmation of the proposi- tion as to which the law puts the burden upon him, it is the duty of =1" McDonald v. Montgomery Street R. Co., 110 Ala. 161; s. c. 20 So. Rep. 317. iJ90 RULES OF PKOCEDXJEE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. the judge so to instruct the jury, or to direct their verdict accord- ingly. But if the party sustaining such burden produces substantial evidence to discharge it, then the court can never say at what point that evidence is sufficient so that the burden shifts to the other party ; but the question is always for the jury whether the party has delivered evidence which produces satisfaction in their minds. We must con- clude, then, that the court can not decide, as matter of law, in any case or under any theory, that the burden shifts unless the party sustaining the burden had produced no substantial evidence to dis- charge it, — in which event the question is always for the court. For example, a person is found drowned in a natatorium under circum- stances which do not speak as to whether his death was due to any fault of the proprietor or not. Here the burden does not shift upon the proprietor of excusing himself, because there has been no evidence inculpating him, and the court so decides.^ ^^ We have already seen,^"^ that the fact that a man unintentionally exposes himself or his property in a situation where it is liable to be injured by another, will not excuse the other in injuring it if, after discovering its ex- posed situation, he could have avoided so doing by the exercise of reasonable care ; and that in such, cases the contributory negligence of the person so exposing himself or property does not bar a recovery of damages. This rule is frequently applied in cases where persons un- consciously expose themselves to injury upon railroad tracks. In such a case it has been reasoned that if the evidence of the person injured discloses that he was negligently upon the railroad track at the time T, hen he was struck by the train, "it would devolve upon him, in order to entitle him to recover, to show that, although his act contributed to the injury, still the more direct cause of it was the failure of the de- fendant to avoid it when he ought to have done so."^^^ This does not "° Bertalot v. Kinnare, 72 111. App. ant's negligence was the proximate 52. See also Brotherton v. Manhat- cause of the injury: Wahl v. Shoul- tan Beach &c. Co., 48 Neb. 567; s. c. ders, 14 Ind. App. 665; s. c. 43 N. 33 L. R. A. 598. The books abound E. Rep. 458. in such worthless propositions as ^^' Ante, § 238. A mistaken con- the following: That proof that the ception of the shifting of the bur- employes of a railway company den of proof is found in a decision were in fault, in case of the acci- to the effect that the burden of dental death of another employ^, proof of due care shifts to the puts upon the company the burden plaintiff, suing for personal injuries of showing that the deceased was from a defective sidewalk, where it negligent: Augusta &c. R. Co. v. appears that an ordinary person McDade, 105 Ga. 134; s. c. 12 Am. & upon the walk would have seen that Eng. R. Cas. (N. S.) 548; 31 S. B. it was dangerous to go upon, and Rep. 420. That the burden of prov- the danger was open, apparent, and ing that no negligence of the wife patent: Monroeville v. Weihl, 2 of the plaintiff contributed to an Ohio Dec. 343. injury for which an action is ^^ Texas &c. R. Co. v. Hare, 4 brought does not shift from the Tex. Civ. App. 18, 24; s. c. 23 S. W. plaintiff on proof that the defend- Rep. 42. 391 1 Thomp. Neg.] contributory negligence. necessarily imply a shifting of the burden of proof; since, in such a case, the plaintiff would sustain that burden from the outset. But where the plaintiff shows that the injury sustained by him occurred by reason of the negligence of the defendant, and without the fault or negligence of the plaintiff contributing thereto, and that the plaintiff employed a skillful physician and surgeon, — then, it is reasoned that the burden shifts to the defendant to establish the truth of an allega- tion made by him that the pain and deformity were not the result of the injury, but were caused by the plaintiff's negligence in the treat- ment of the member injured.''^^ § 407. Circumstances under which Burden of Proof as to Contrib- utory Negligence Shifts from Plaintiff to Defendant.* — The illogical and unjust rule which places the burden upon the plaintiff to prove the negative proposition, that the person injured was not guilty of con- tributory negligence, has not unfrequently enmeshed the courts which have adopted it in casuistry and refinement. In one case where this rule prevailed the court instructed the jury, in substance, that if the plaintiff showed his acts in the transaction and they failed to show contributory negligence, the burden upon this point would be shifted. The court, after holding that this was erroneous, granted a rehearing and changed its view and held the instruction not erroneous in its application to the facts of the particular case. "We can conceive of cases," said Adams, J., "where the plaintiff might prove the injured person's acts, and the jury, by reason of a want of knowledge of the circumstances, be left entirely in the dark as to whether they showed contributory negligence or freedom from it. In such a case it can not be said that the rule of the instruction would be correct. But the case before us is not one of that kind. The character of the plaintiff's act, so far as it depended upon circumstances, was clearly shown. The only question, then, is, was it sufficient to shift the burden of proof for the plaintiff to show his acts, if they failed to show contrib- utory negligence? We think it was. Where there is no question of ''''^ Goshen v. England (Ind.), 21 under which the testimony of a pas- N. E. Rep. 977 (no off. rep.). That senger injured while alighting from evidence that a child seven years a train in a dark place, not the of age was playing upon the tracks usual stopping place, that he had a of an electric railway at the time baby in one arm and a bundle in it was struck by a car, does not dis- the other, does not relieve the rail- charge the burden resting upon the way company from the burden of company of showing contributory showing contributory negligence: negligence, in the absence of any Texas &c. R. Co. v. Porter (Tex. Civ. evidence that the child knew of its App.), 41 S. W. Rep. 88 (no off. danger, — see Riley v. Salt Lake rep.). Rapid Transit Co., 10 Utah 428 ; s. c. a This section is cited in § 367. 37 Pac. Rep. 681. Circumstances 392 RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. negligence by reason of an omission, and no question in regard to the surrounding circumstances, the only question is as to whether the in- jured person, in view of the conceded circumstances, was negligent in what he did, we are unable to see how the plaintiff could do more than prove what he did. In proving what he did, he would prove what care he exercised; and the acts, fully disclosed and understood, must al- ways be deemed sufficiently careful which evince no negligence."^^* But this, it will be observed, relates, in strictness, rather to the evi- dence which sustains the burden of proof where this rule prevails, than to the evidence which shifts it upon either party,^^^ — the true rule being that the burden of proof never shifts as long as the evidence is directed to the same proposition of fact. So, where the rule of the jurisdiction places the burden upon the plaintiff of disproving his own contributory negligence, the burden is not shifted by the fact that the defendant has unnecessarily pleaded the contributory negligence of the plaintiff; and an instruction which tells the jury the contrary is § 408. Intoxication of the Plaintiff Does Not Shift Burden of Proof as to Contributory Negligence from Defendant to Plaintiff. — Where the plaintiff was injured through the breaking down of a public bridge in consequence of its defective condition, it was held not error to refuse to instruct the jury that if they find that the plaintiff, at the time and place of the accident, was intoxicated, the burden of proof was upon him to show that he exercised due care, and if his intoxica- tion contributed to the accident he could not recover. The court, speaking through Mr. Justice Thayer, reasoned that mere intoxica- tion in the person who sustains an injury of such a character does not create a presumption of negligence on his part, such as shifts the burden of proof upon him. It is merely a circumstance to be con- sidered by the jury as tending to corroborate the proof of negligence ; but, standing alone, is not such proof. Drunk or sober, a traveller had a right to assume, in the absence of knowledge to the contrary, that a county bridge opened to the use of the public would bear up his load while crossing it.^" § 409. Burden as Between Moving Vessels in Case of Collision. — A subject relating strictly to the law of mutual negligence, and hence not out of place here, is the rule in admiralty that, as between a ^ Raymond v. Burlington &c. R. ■'" Hawes v. Burlington &c. R. Co., Co., 65 Iowa 152, 156. 64 Iowa 315. "^As to this, see post, § 413. =^Ford v. Umatilla County, 15 Ore. 313; s. c. 16 Pac. Rep. 33. 393 1 Thomp. Neg.] contributory negligence. steamer and a sailing vessel, upon proof that the latter has observed all the rules of navigation, fault in the steamer, in case the two col- lide, is presumed, except on a showing of inevitable accident ;^^' and hence that the burden is upon the steamer, if she would avoid lia- bility, to satisfy the court that she has observed all the rules of navi- gation and of careful seamanship.^^' The meaning plainly is that, in a case of a collision between two vessels both of which are in mo- tion, the fault is presumptively attributed to the one which can the more easily maneuver, casting upon such vessel the burden of show- ing that she took the proper precaution to avoid the collision. Thus, an unincumbered steamer in a dredged channel about 100 yards wide, having the choice between the different sides of the channel, in passing a tug with a heavy tow, has the burden of showing that the side chosen by her was the only safe side and that she took every precau- tion to avoid the risk of the coUision.^^" § 410. Burden of Proof in Other Cases of the Collision of Vessels. — In case of the collision of vessels, the general rules seem to be that where one of the vessels is clearly shown to have ieen in fault, the burden rests upon that vessel to show that the other vessel was also guilty of contributory fault, which burden can only be sustained by clear proof.^^^ The meaning of the rule is that, in ease of a col- lision, where one vessel is clearly in fault, the other is presumed to be free from fault until the contrary is made to appear by the former vessel. But this seems to be an artificial presumption to be applied only in the absence of evidence speaking fully with reference to the catastrophe. It is said that the presumption does not arise where the question of fault on each side is open to determination by the court upon evidence of facts easily ascertainable. ^^^ For example, a steam- ship which commits the fault of backing off a shoal at the entrance of a narrow channel, and which comes into collision with a passing barge 228rpjjg Florence P. Hall, 14 Fed. ™The Oregon, 158 U. S. 186; s. c. Rep. 408, 416, 418, and cases cited. 39 L. ed. 943; 15 Sup. Ct. Rep. 804. 229 rpjjg Normandie, 43 Fed. Rep. It is said that the burden which 151, 153. Circumstances under rests on a vessel which has neg- which the testimony of those on a lected only the usual and proper schooner colliding with a steamer, measure of precaution, but has not that the light of the schooner was violated any statutory regulation, to burning brightly, will be believed show that the collision was not pro- in opposition to the contrary testi- duced by her neglect as the elHcient mony of the officers and crew of the cause, is only the ordinary burden, steamer: The Alice B. Phillips, 55 whatever that may mean: The H. IT. S. App. 1; s. c. 81 Fed. Rep. 415; F. Dimock, 77 Fed. Rep. 226; s. c. 26 C. C. A. 467. 33 U. S. App. 647; 23 C. C. A. 123. ™ The Lucy, 74 Fed. Rep. 572 ; ''' The Chattahoochee, 74 Fed. Rep. s. c. 42 U. S. App. 100; 20 C. C. A. 899; s. c. 33 U. S. App. 510; 21 C. C. 660. A. 162. 394 RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. in tow of a tug, has the burden of showing that her backing did not produce the accident.^' ^ Moreover, where one vessel is convicted of a plain violation of a legal rule, which violation brings about a col- lision, a counter-charge of contributory negligence or other miscon- duct must be clearly made out.^^* On the other hand, if the vessel had anchored in a proper place, and, while so at anchor and unable to maneuver, another vessel runs into her, the burden is upon the other vessel to show that the collision was not due to her own negligence,^ ^' but that the vessel at anchor was at fault, which fault contributed to the collision.^^^ A steamer is presumptively at fault for colliding with a vessel at anchor in a river on the edge of a ship channel which is nearly half a mile wide, the place of anchorage being well out of the usual track of the ocean steamers plying up and down the river, if the anchored steamer is provided with an anchor watch, and displays the proper anchor light.^^' Extending the doctrine obtaining on land, both for the protection of life and property negligently exposed, it is held that, although a vessel is anchored in an improper place, a mov- ing steamship which runs upon it has the burden of showing that the collision could not have been avoided by the exercise of dvie care.^^** So, a vessel which commits the fault of anchoring after night in a channel, in case of a collision, has the burden of showing that she ex- hibited a light and maintained a watch.^^° There is, however, a holding to the effect that the burden of proof is upon a vessel moored in an unlawful situation to show that the collision did not occur on that account, but by reason of the negligent conduct of the other vessel.^^" § 411. Burden where a Vessel Collides with a Pier. — If a vessel collides with a pier, and the owner of the vessel brings a libel for damages against the owner of the pier, the libellant has the burden of showing that his vessel was not in fault and that the pier was an unlawful obstruction to navigation.^ *^ § 412. Where Both Vessels have Opportunity to Maneuver, Both Deemed at Fault. — Where both of the colliding vessels have plenty of ™Tlie John Craig, 66 Fed. Rep. s. c. 57 U. S. App. 706; 30 C. C. A. 596. 203; The Annot Lyle, L. R. 11 Prob. ="The Iron Chief, 11 C. C. A. 196; Div. 114; The Bothnia, 1 Lush. 52; s. c. 63 Fed. Rep. 289. The Batavier, 2 Wm. Rob. 407; The "''Ward V. The Yosemite, 4 Can. Lochlibo, 3 Wm. Rob. 310. Exch. 241. '"' The Armonia, 67 Fed. Rep. 362. ™ The "Porter" v. Heminger, 6 ™ St. Louis &c. Transp. Co. v. Can. Exch. 208. United States, 33 Ct. CI. 251. ==' The Oregon, 158 U. S. 186 ; s. c. '" The Henry Clark v. O'Brien, 65 39 L. ed. 943; 15 Sup. Ct. Rep. 804. Fed. Rep. 815. ^La Bourgogne, 86 Fed. Rep. 475; 395 1 Thomp. Neg.] contributoky negligence. water in which to maneuver, and there is nothing in the condition of the wind or weather to render maneuvering diflScult, the presumption will be that the collision was the result of the negligence of both vessels.^^^ § 413. What Proof Sustains the Burden when on Plaintiff.^ — Under the rule which casts the burden upon the plaintiff to show that he was free from contributory negligence, he must, in order to recover, give some evidence tending to show that he was without negligence; and where the action is for damages for a negligent injury resulting in death, the plaintiff must, in like manner, give some evidence tend- ing to show that the deceased was free from contributory negli- gence.^*^ "To enable the plaintiff to recover, he must show that the defendant was guilty of negligence in one * * * of the respects charged in the petition; that the negligence charged, of which the defendant was guilty, was the proximate cause of his being injured to his damage; and that he was free from negligence contributing to such injury."^** But where the circumstances surrounding the acci- dent are consistent with the conclusion that it may have been the re- sult of contributory negligence, then, in order to justify a recovery, the proof which negatives the conclusion of contributory negligence will not be sufficient if it rests in surmises and conjectures only; nor is proof of circumstances equally consistent with the presence or ab- sence of such contributory negligence sufficient,^*^ but the plaintiff must show freedom from contributory negligence by a preponderance of evidence, and the court should so instruct the jury.^*" This is re- garded as falling under the general rule of law that, in civil cases, the plaintiff must prove his case by a preponderance of evidence, and that the defendant is entitled to have the jury so instructed.^*'' The true doctrine under this head is that, where the plaintiff exhibits in his evi- dence all the facts illustrating the conduct of the person injured at the time of the accident, he does all that he can do ; and if those facts show no negligence, he has sustained the burden on his part, under the rule of those jurisdictions which puts the burden of showing freedom from contributory negligence upon the plaintiff.^*' This rule was ""^Pettit v. Camden County Free- 749; aff'd 146 N. Y. 369; s. c. 40 N. holders, 87 Fed. Rep. 768. E. Rep. 507. a This section is cited in § 407. ™ North Chicago St. R. Co. v, ^" Toledo &c. R. Co. v. Brannagan, Louis, 138 111. 9 ; s. c. 27 N. B. Rep. 75 Ind. 490. 451; reversing on other grounds 35 ^"Rehelsky v. Chicago &c. R. Co., 111. App. 477; Hoopeston v. Eads, 32 79 Iowa 55, 60; s. c. 44 N. W. Rep. 111. App. 75. 536. ^'Dyer v. Talcott, 16 111. 300; "^ Geoghegan v. Atlas Steamship Kepperly v. Ramsden, 83 111. 354. Co., 3 Misc. (N. Y.) 224; s. c. 51 ^'Raymond v. Burlington &c. R. N. Y. St. Rep. 868; 22 N. Y. Supp. Co., 65 Iowa 152, 156. 396 RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. expressed by the Supreme Judicial Court of Massachusetts thus: "All the circumstances under which the injury was received being proved, if they show nothing in the conduct of the plaintiff, either of acts or neglect, to which the injury may be attributed in whole or in part, the inference of due care may be drawn from the absence of all appearance of fault."^^® It is scarcely necessary to add that the plaintiff need not, in order to sustain this burden, show that he exer- cised more than ordinary care.^^" § 414. Due Care may be Shown by Circumstantial, as well as Di- rect Evidence.'^ — This does not mean that there must be direct evi- dence that the person killed or injured was at the time in the exercise of due care. This fact, like any other fact, may be proved by circum- stances, as well as by direct evidence.^'^ Even in those obscure cases ="Mayo V. Boston &c. R. Co., 104 Mass. 140; quoted with approval in Raymond v. Burlington &c. R. Co., 65 Iowa 152, 157. ™ Huntington v. Breen, 77 Ind. 29; ante, § 171. Compare § 175. Tlie fact that the complaint showed that plaintiff's intestate knew of a dan- gerous place in the highway, into which he fell and was killed, was held not suflBcient to overcome, or make nugatory, the explicit aver- ment that he exercised reasonable care and prudence: Toledo &c. R. Co. V. Brannagan, 75 Ind. 490. The evidence was held sufficient to sup- port a finding that a person injured while walking on a railway track in a city street was free from con- tributory negligence, where it showed that after the passing of a train he looked back, and, noticing no danger, stepped back upon the track and was injured by two de- tached cars coming down grade from around a curve, where they were out of sight at the time he looked, — in Galveston &c. R. Co. v. Lewis, 5 Tex. Civ. App. 638; s. c. 25 S. W. Rep. 293. a This section is cited in § 435. '"Chisholm v. State, 141 N. Y. 246; s. c. 56 N. Y. St. Rep. 811; 36 N. E. Rep. 184; Pittsburgh &c. R. Co. v. Bennett, 9 Ind. App. 92; s. c. 3S N. E. Rep. 1033; Jones v. New York &c. R. Co., 10 Abb. (N. Y.) N. Cas. 200; s. c. 62 How. (N. Y.) Pr. 450; Hart v. Hudson River Bridge Co., 80 N. Y. 622; Hoffman V. Union Ferry Co., 47 N. Y. 176, 186; Button v. Hudson River R. Co., 18 N. Y. 248; Mayo v. Boston &c. R. Co., 104 Mass. 137; French v. Bruns- wick, 21 Me. 29; Nelson v. Chicago &c. R. Co., 38 Iowa 564; "Wayne County Turnpike Co. v. Berry, 5 Ind. 286, 288; Lillstrom v. Northern &c. R. Co., 53 Minn. 464; s. c. 55 N. W. Rep. 624; 20 L. R. A. 587; Indian- apolis &c. R. Co. V. Callingwood, 71 Ind. 476; Indianapolis &c. R. Co. v. Thomas, 84 Ind. 194, 197; Hays v. Gallagher, 72 Pa. St. 136; Maguire V. Fitchburg R. Co., 146 Mass. 379 (apt illustration) ; Texas &c. R. Co. V. Crowder, 63 Tex. 502; Gulf &c. R. Co. V. Riordan (Tex. Civ. App.), s. c. 22 S. W. Rep. 519 (not off. rep.); Jencks v. Lehigh Valley R. Co., 53 N. Y. Supp. 625; s. c. 33 App. Div. 638; Caven v. Troy, 32 App. Div. 154; s. e. 52 N. Y. Supp. 804; Walsh v. Boston &c. R. Co., 171 Mass. 52; s. c. 50 N. E. Rep. 453; Baltimore &c. R. Co. v. Alsop, 71 111. App. 54; Harper v. Delaware &c. R. Co., 22 App. Div. 273; s. c. 47 N. Y. Supp. 933; Gorman v. Min- neapolis &c. R. Co., 78 Iowa 509; s. c. 43 N. W. Rep. 303; James v. Ford, 30 N. Y. St. Rep. 667; s. c. 9 N. Y. Supp. 504; 16 Daly 126; Carver v. Detroit &c. Plank Road Co., 69 Mich. 616; s. c. 25 N. W. Rep. 183. That the failure to ring the bell or sound the whistle upon the approach of an engine to a highway crossing was a' contributing cause to the death of a person who .was struck by the engine while attempt- ing to cross the track, may be in- ferred from the accident, — see Walsh V. Boston &c. R. Co., 171 Mass. 52; s. c. 50 N. E. Rep. 453. 397 1 Thomp. Neg.J contributory negligence. where persons are killed on railway tracks by passing trains, it is necessary, in the opinion of most of the courts which adhere to the rule that the burden of showing freedom from contributory negli- gence is on the plaintiff, for the plaintiff to exhibit a state of circum- stances from which the inference may fairly be made that he was in the exercise of due care at the time.^"^ As to the probative force of the circumstantial evidence which the plaintiff must adduce, it can only be said that it must, in the opinion of the judge, be sufficient to take the question to the jury; that it must be evidence of sufficient strength fairly to raise the inference that the deceased was in the exercise of due care at the time of the catastrophe; that it must be something more than enough to raise a mere suspicion, conjecture or surmise.^^^ Under this rule, if the facts exhibited by the evidence point as much to the negligence of the deceased as to absence, or point in neither direction, a recovery can not be had.^°* In Massachusetts, it is said that if the circumstances attending the accident are in evi- dence, the mere absence of fault on the part of the person injured might justify an inference of due care. But where there is no evidence as to what he was doing at the time of the accident, it is not enough to show that one conjecture is more probable than another, but there must be some evidence to show that he was in the exercise of due care.^^^ But this statement of doctrine can only be regarded as the statement of a general rule. It can not possibly be made to apply in all cases. It can not, for instance, be made to apply, with even a suggestion of justice, to the ease where one who has bought a railway ticket and taken passage on a railway train is killed while on the train by the breaking down of a railway bridge, or by a collision, there being no evidence tending to show just where he was or what he was doing at the time; and it is not applied in such cases in Massachusetts.^^* This rule would, in many cases, work great injustice and oppression, and the fact that the defendant may have killed the only witness to the accident save his own agents and servants, would be made a shield =»2 Gulf &c. R. Co. V. Riordan (Tex. Co., 3 Misc. 224; s. c. 51 N. Y. St. Civ. App.), 22 S. W. Rep. 519 (not Rep. 868; 22 N. Y. Supp. 749. off. rep.). To authorize a recovery ^^'Caven v. Troy, 32 App. Div. 154; for the negligent killing of a person s. c. 52 N. Y. Supp. 804. the plaintiff must, by direct proof or ^ Tyndale v. Old Colony R. Co., circumstances, negative contribu- 156 Mass. 503, 505; s. c. 31 N. E. tory negligence on the part of de- Rep. 655; Hinckley v. Cape Cod ceased; since no presumption arises. Railroad, 120 Mass. 257; Corcoran from the mere happening of the in- v. Boston &c. Railroad, 133 Mass. jury and proof of defendant's negli- 507; Riley v. Connecticut &c. Rail- gence, that the deceased was free road, 135 Mass. 292; Shea v. Boston fromhlame: Jencks v. Lehigh Valley &c. Railroad, 154 Mass. 31. R. Co., 53 N. Y. Supp. 625; s. c. 33 ==» McKimble v. Boston &c. R. Co., App. Div. 635. 139 Mass. 542. ^ Geoghegan v. Atlas Steamship 398 EULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed, to exonerate him. The true rule is that stated by the Court of Ap- peals of New York, speaking with reference to cases where the evi- dence which speaks upon the question is circumstantial: "If differ- ent conclusions can be drawn from the circumstances, it is a question for the jury."2" § 415. What Proof Does Not Sustain the Burden when on Plaint- iff. — Evidence of contributory negligence is disclosed in an action for the injuries caused by a fall on a defective sidewalk, where plaintiff testifies, in effect, that he knew that the condition of the sidewalk where the accident happened was not so good as that on the opposite side of the street, and he could with equal convenience have taken the latter side.^°* It has been held that the burden upon plaintiff, in an action to recover for the death of a person' from being run over by a train, of rebutting the presumption of contributory negligence arising from the fact that deceased was lying across the track at the time of the accident, — is not discharged by evidence that the position of his limbs was such as it would have been in case of a fit, where there is evidence that the deceased had been drinking, and there is no direct evidence to show that he had fallen in a fit.^^* § 416. What Circumstances Tend to Show Freedom from Contrib- utory Negligence in Case of Death. — DifBeulties have arisen in those jurisdictions which put upon the plaintiff the burden of proving that the person injured or killed was not guilty of contributory negligence, in cases where the injury results in death, and especially where it re- sults in death on a railway track in the night-time, under such cir- cumstances that the plaintiff is unable to produce any eye-witnesses of the catastrophe. In such a case an authoritative court has said that less evidence to negative contributory negligence is required where the accident results in death than would have been required of the de- ceased if he had survived. ^"^ Other courts have given a practical effect to this conception by holding that freedom from contributory negligence of a person killed while crossing a railway track may be inferred, in the entire absence of evidence, from the natural instinct of self-preservation existing in all men.^^^ But this is doubt- »'Chisholm v. State, 141 N. Y. 466; s. c. 48 N. E. Rep. 749; rev'g 246, 249. 12 App. Div. 384; s. c. 42 N. Y. =»« Lynch v. Erie, 151 Pa. St. 380; Supp. 744. s. c. 25 Atl. Rep. 43; 31 W. N. C. ^^ Hopkinson v. Knapp &c. S. Co., 65. 92 Iowa 328; s. c. 60 N.W. Rep. 653; "' Kuehn v. Missouri &c. Co., 10 Broadbent v. Chicago &c. R. Co., 64 Tex. Civ. App. 649; s. c. 32 S. W. 111. App. 231; s. c. 1 Chic. L. J. Wkly. Rep. 88. 246. "^ Schaf er v. New York, 154 N. Y. 399 1 Thomp. Neg.] contributory negligence, ful, in view of the doctrine of a higher court of the same State, laid down in a case where the injury did not result in death; that freedom from contributory negligence must be shown by a prepon- derance of evidence.^*- The same court has gone so far as to hold that freedom from contributory negligence may, in the absence of direct and positive testimony, be proved by that reasonable inference which springs from the habits of the deceased in connection with the circumstances surrounding him at the time of his death. ^"^ And consequently that evidence that the deceased was sober in his habits, industrious and generally cautious and careful, is admissible as tend- ing to negative the conclusion of contributory negligence in an action for negligence causing his death, where there was no eye-witness of the accident.^"* Accordingly the burden of proof that a night watch- man of a railway track was in the exercise of ordinary care at the time of an accident causing his death, was held to have been sustained by un controverted evidence of one who had known him well for thirty years that he was a temperate, quiet and careful man.^^^ The same rule would obviously lead to the admission of evidence as to the habits of a person as to intoxication, but such evidence has been held inadmis- sible on an issue as to the condition of the plaintiff at the time of an injury received by him by being struck by a wagon of the defendant as he was crossing the street;^"® but here there was no lack of eye-wit- nesses. to the accident, and no need of resorting to evidence of this char- acter. Even the fact that the person was killed or injured was intoxi- cated at the time is held to be relevant upon the question of contribu- tory negligence, in so far only as it stands to show that he was in such a condition as to preclude the exercise of due care by him j^"^ nor is the fact that a person was slightly intoxicated at the time when he was killed, evidence from which a want of care' and prudence on his part can be reasonably inferred, nor is it evidence of negligence per se.^"* § 417. What Proof Sustains the Burden when on the Defendant. — On the other hand, in those jurisdictions where contributory negli- gence is a special defense to be affirmatively alleged and proved by the defendant, he must establish it by a preponderance of evidence.^^^ === North Chicago &c. R. Co. v. ^"Reens v. Mail & Exp. Pub. Co., Louis, 138 111. 9; s. c. 27 N. B. Rep. 10 Misc. (N. Y.) 122; s. c. 62 N. Y. 451. St. Rep. 511; 30 N. Y. Supp. 913; »= Illinois &c. R. Co. v. Coxby, 69 s. c. aff'd 150 N. Y. 582 ; s. c. 44 N. 111. App. 256. E. Rep. 1128. ^ Corbin v. Western Electric Co., ^' Kenney v. Rhinelander, 28 App. 78 111. App. 516; s. c. 3 Chic. L. J. Div. 246; s. c. 50 N. Y. Supp. 1088. Wkly. 366. '"'Baltimore &c. R. Co. v. State, ^°= Baltimore &c. R. Co. v. Alsop, 81 Md. 371; s. c. 32 Atl. Rep. 201. 71 111. App. 54. '^' Northern &c. R. Co. v. Mares, 400 KULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. But the word "preponderance" is simply a cabalistic word to make the average juror roll his eyes, xmless the meaning is explained to him. The true theory is that, in determining whether the person killed or injured was guilty of negligence contributing to the accident which befell him, the jury are to consider all the evidence in the case, in- cluding that adduced by the plaintiff as well as that adduced by the defendant;^'" and not to try to split it up into segments or compart- ments ; and that they are not to render a verdict for the defendant be- cause of the contributory negligence of the person killed or injured, unless the conclusion that there was such negligence appears to their satisfaction.^" The vital distinction between the two rules is illus- trated by those obscure cases where a person is killed in the absence of evidence which speaks positively of the question of due care or negli- gence on his part. Here, generally speaking, under the rule which puts the burden of proving contributory negligence on the defendant, the plaintiff need not in the first instance prove that the deceased did not know and by the exercise of ordinary care could not have known of the danger — whatever it may have been — that resulted in his death, — ■ the same being due to the negligence of the defendant. ^''^ § 418. When Plaintiff, to Avoid Defense of Contributory Negli- gence, must Prove "Wanton" Negligence on Part of Defendant. — We have already seen that, where the wrong of the defendant reaches the grade of a willful, intentional, or wanton wrong, the contributory negligence of the person suffering the wrong is not a defense to his action.^'^ In a jurisdiction where such is the law and where con- tributory negligence is an affirmative defense to be alleged and proved bv the defendant, the plaintiff may, it seems, avoids by setting up that the negligence of the defendant was wanton,^'* — though the better opinion would seem to be that this would be a departure in pleading. 123 U. S. 710; s. c. 31 L. ed. 296; of the company, and the absence of Eddy v. Wallace, 49 Fed. Rep. 801 ; negligence on his own part, but it is s. c. 4 U. S. App. 264; Northern &o. sufficient that he show either: John- R. Co. V. Lewis, 51 Fed. Rep. 658; son v. Richmond &c. R. Co., 95 Ga. Indianapolis &c. R. Co. v. Horst, 93 685; s. c. 22 S. E. Rep. 694. As U. S. 291; approving Nudd v. Bur- though, by disproving negligence rows, 91 U. S. 426. on his own part, he proves it on the ""Baltimore Traction Co. v. Appel, part of the company! 80 Md. 603; s. c. 31 Atl. Rep. 964. ^'^ Judd v. Chesapeake &c. R. Co., "'The following absurd concep- 18 Ky. L. Rep. 747; s. c. 37 S. W. tion is from the oflBcial syllabus of a Rep. 842 (not to be off. rep.) ; re- case in Georgia: The plaintiff, in an hearing denied in 38 S. W. Rep. 880; action for injuries alleged to have s. c. 18 Ky. L. Rep. 750. been due to the negligence of his co- ^' Ante, § 206, et seq. employe in the operation of a rail- "* Lee v. De Bardelaben Coal &c. way train upon which the plaintiff Co., 102 Ala. 628; s. c. 15 South, was engaged, need not show affirm- Rep. 270. atively, both negligence on the part VOL. 1 THOMP. NEG. — 26 401 1 Thomp. Neg.] contributoky negligence. WTiere, however, this conception prevailed, and the defendant pleaded contributory negligence, and the plaintiff's reply alleged that the de- fendant knew of the plaintiff's dangerous situation at the time of the accident, and was guilty of "wanton recklessness or gross negligence," it was held that the burden no longer rested on the defendant to prove the plaintiff's contributory negligence, because it stood confessed by his replication; but that the plaintiff, in order to recover, was bound to make good the affirmative matter pleaded in his replication.^^^ It seems that an unnecessary allegation in the complaint, that the de- ceased was not guilty of contributory negligence contributing to his death, does not put upon the plaintiff the burden of proving freedom from such negligence, the allegation being surplusage.^'* Upon the question, what will be evidence of a negligent injury so aggravated that it rises to the grade of willful or wanton negligence, in addition to what has already been considered,^'' it has been held that evidence that a railway train was run at the rate of thirty miles an hour over a public crossing, in a town of 500 inhabitants, where there was an average passing of one person every ten minutes, and where the people sometimes crossed in great numbers, which facts were known to those in charge of the train, the question was properly submitted to the jury.^'^ One court has even gone so far as to- find evidence of such negligence in the fact that the statutory signals were not given by those in charge of a railway train approaching the highway cross- ing, where the view was obstructed and there was no gate or watchman at the crossing.^' ^ § 419. Burden on Plaintiff to Remove Presumption of Contributory Negligence Eaised by his Ovyn Testimony. — It seems to be no more than an inartificial way of stating a proposition on which, in those jurisdictions where the burden as to contributory negligence is on the defendant, all judicial authority unites,^^" to say that "if the plaint- ^' Lee v. De Bardelaben Coal &c. any fault or negligence" on his part, . Co., 102 Ala. 628; s. c. 15 South. Rep. was mortally wounded by a pistol 270. This court did not consider shot: this did not put upon the whether there had been a. departure plaintiff the burden of proving that in the plaintiff's pleading, no objec- the deceased was free from fault or tion having been taken upon that negligence: Jones v. United States ground. _ Mut. Ace. Asso. (Iowa); s. c. 61 N. "° It was held in an action on an W. Rep. 485. insurance policy against accidental "'Ante, § 208. death, where the policy contained a ^'Memphis &c. R. Co. v. Martin, clause that the insurer should not 117 Ala. 367; s. c. 23 So. Rep. 231. be liable in case of death caused by ™ Louisville &c. R. Co. v. Schick, fighting, voluntary exposure to un- 14 Ky. L. Rep. 833; s. c. 21 S. W. necessary danger, intoxication, or Rep. 1036 (not to be off. rep.), violation of law, and the complaint " ^"^ Ante, § 369. alleged that the assured "without 402 KULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. iff's evidence shows an injury by the defendant's negligence, and does not raise an implication that his own contributed, the burden of proving such contributory negligence as will defeat a recovery rests upon the defendant. But if the plaintiff's testimony raises a pre- sumption of contributory negligence, then it is his duty to remove that presumption; otherwise he would fail in his action."^^^ This awkward statement of doctrine seems tantamount to saying that a time may arise in the presentation of his evidence by the plaintiff, when it may become necessary for him to disprove a state of facts which he has proved. In one of the cases cited in support of the above proposition, it is said: "It is only when the injury is shown by the plaintiff, and there is nothing that implies that his own negligence contributed to it that the burden of proving contributory negligence can properly be said to be cast on the defendant ; for when the plaint- iff's own case raises the suspicion that his own negligence contributed to the injury, the presumption of due care on his part is so far re- moved that he can not properly be relieved from disproving his own contributory negligence by casting the burden of proving it on the defendant, the same as if the presumption in favor of the plaintiff was unquestioned on his own case."^'^ But who is to say at what period in the progress of the ease "the plaintiff's own case raises a suspicion that his own negligence contributed to the injury"? The jury can not say it until they return their verdict at the close of the whole case. The judge can not say it, because it is not his office to pass upon the weight or probative effect of any part of the evidence during the progress of the case. Whose "suspicion," then, is it that the evidence thus raises? And what has the law to do with mere suspicions and surmises? Possibly, this obfuscation is cleared away by the succeeding sentences in the opinion of the court : "The ques- tion should be left, upon the whole evidence, to the determination of the jury, with the instruction that the plaintiff can not recover if his own negligence contributed to the injury."^ *^ The court may have been led into obfuscations of this kind by copying into their opinions too readily the dicta of an author who was incapable of accurate legal thought. Thus, in the Texas case the following language is quoted from Dr. Wharton, and the same passage is cited in the Ohio case first above quoted from: "No doubt where, in an action for injuries ^ Ante, § 432; Baltimore &c. R. gence, — see Allis v. Columbian Uni- Co. V. Whitacre, 35 Ohio St. 627; versity, 19 D. C. 270; s. c. 18 Wash, opinion by Johnson, J.; Texas &c. L. Rep. 687. R. Co. V. Reed, 88 Tex. 439; s. c. 31 ^=Robison v. Gary, 28 Ohio St. S. W. Rep. 1058. That the defend- 241, 250, opinion by Day, J. ant is entitled to the benefit of any ^ Robison v. Gary, 28 Ohio St. evidence adduced by the plaintiff 241, 250. tending to prove contributory negli- 403 1 Thomp. Neg.] contributory negligence. caused by failure of duty on the part of the defendant, the failure of duty and the injury are shown by the plaintiff, and there is nothing that implies that he brought on the injury by his own negligence, then the burden is on the defendant to prove that the plaintiff was guilty of such negligence. On the other hand, where the plaintiff's own case exposes him- to suspicions of negligence, then he must clear off such suspicion."^** This passage is subject to the same criticism as the one of the Ohio court last quoted. Besides, it implies that a plaintiff may be turned out of court upon a mere suspicion that he has done wrong. The law is not in such a state that a plaintiff can re- cover damages of a defendant by merely raising a suspicion that the defendant has done wrong, or be turned out of court because of a mere suspicion, however arising or by whomsoever entertained, that the plaintiff himself has done wrong. The Supreme Court of Texas, while citing with seeming approval this most foggy language of Dr. Wharton, use language which shows that they merely have in mind the plain conception that if the evidence presented by the plaintiff de- velops a state of facts which raises no inference of negligence on his part, but which does raise an inference of negligence on the part of the defendant, then the element of contributory negligence is not in the case, unless the defendant raises it by his evidence.^*^ The "infers ence" intended by this expression of the rule is something more than mere suspicion or surmise. It must rise to the grade of prima facie evidence of contributory negligence ;^*° and that is what is meant by saying that, under such circumstances, the burden is on the defendant to show contributory negligence. The Supreme Court of Pennsyl- vania have treated this subject more clearly, by holding that, where the plaintiff testifies as a witness in his own behalf, and, on his cross- examination, admits facts which show that he was guilty of contrib- utory negligence, while he will not be concluded by a mere slip on the witness stand from making a proper explanation, leaving his testimony and explanation to go together to the jury, — yet where he fails to ex- plain the statement showing contributory negligence, it becomes the duty of the court to instruct the jury that he can not recover.^*^ § 420. Relevancy of Evidence on ftuestions of Contributory Negli- gence. — Evidence of a custom on the part of men in the same situa- f". " '^'^Whart. Neg. 426. This absurd =»» Dallas &c. R. Co. v. Spiker, 61 language was quoted with approval Tex. 427. by the Supreme Court of Texas in '^«« Gulf &c. R. Co. v. Shieder, 88 Dallas &c. R. Co. v. Spiker, 61 Tex. Tex. 152; s. c. 28 L. R. A. 538; 30 427, 429; s. c. 48 Am. Rep. 297. See S. W. Rep. 902. also, Johnson v. Galveston &c. R. ^ Lynch v. Erie, 151 Pa. St. 380. Co., 10 Tex. Civ. App. 254; s. c. 30 S. W. Rep. 95. 404 RULES OF PKOCEDURB IN CONTRIBUTORY NEGLIGENCE. [2d Ed. tion to do what the plaintiff neglected to do, — as, for example, to chain their wagon wheels when going down a particular hill, has been held admissible, — the reasoning of the court being this: "The ques- tion whether the plaintiff, at the time of the accident, was in the exercise of ordinary care, was a question of the care of men of ordi- nary prudence, that is, of men in general. Conduct in the manage- ment of teams, of a character so uniform as to become a usage, would include the average conduct of mankind in that particular within the locality where the usage prevailed; and a departure from such usage, when known, would be evidence of a want of ordinary care. If the plaintiff knew the prevailing usage, as to chaining wheels upon a loaded wagon in descending the hill, when he met with the injury (residing or doing business in that vicinity he was presumed to know), a failure on his part to adopt the usage was evidence of negligence. The usage being material, it was competent to show it, and the exclu- sion of evidence on that point was error."^^* Where a boy nine years old sued a railroad corporation for injuries sustained by being struck by a train run along a highway, it was held that, upon the question of due care, evidence was admissible, that, before the accident, the plaintiff had been seen upon the track, and had been warned not to go there.^*° It was held admissible to permit the plaintiff, in an action for damages for a railway injury, to testify that, after he went to the hospital and had his wound dressed once, he received no further med- ical attention, because he had no money to pay for treatment. "It was not error to state the reason why he did not himself procure medical aid when it was refused by defendant at the hospital kept for employes, which they were taxed by the company to support, and which they had the privilege of entering without further fee. It was proper to allow plaintiff to explain why he did not procure other medical assistance, as he was under obligation to avail himself of all proper means to prevent the aggravation of his wound, and to effect a cure. He might, in such a case, show that he was away from home and without money for such purpose."^ ^^ The fact that the person killed or injured had warned others against committing the act which caused his death or injury, is admissible, as tending to prove con- tributory negligence on his part.^"^ For the purpose of determining the question of negligence in riding at an improper speed on a street, evidence is admissible that there is more travel on that street than on any other in the city.^°^ The plaintiff will not be allowed to testify, =*" Aldrich v. Monroe, 60 N. H. 118. ^' Lehigh Valley Coal Co. v. Jones, ^Fltzpatrick v. Fltchburg R. Co., 86 Pa. St. 432; s. c. 6 Reporter, 125. 128 Mass. 13. =»= Stringer v. Frost, 116 Ind. 477; ^ St. Louis &c. R. Co. V. Jones s. c. 19 N. E. Rep. 331; 2 L. R. A. (Tex.), s. c. 14 S. W. Rep. 309 (not 614. off. rep.), opinion by Collard, J. 405 1 Thomp. Neg.] contributory negligencb. in general terms, that he acted cautiously, for this is a conclusion; but he must state the facts showing how he acted.^"' § 421. Relevancy of Evidence in Particular States of the Plead- ings. — In an action for an injury received at a railroad crossing, the plaintifE may, in response to a plea of contributory negligence, prove that, when he attempted to cross the track, his view of the train was obscured by smoke, although his complaint contains no allegation of that fact.^°* But an answer setting up the defense that the injury was caused by the plaintiff's own negligence, is not sufficient to let in evidence tending to show that it was caused by the negligence of his fellow-servants.^"" If contributory negligence is pleaded with par- ticularity, the distinct grounds relied upon being set out, the de- fendant, in giving his evidence on the subject, will be confined to those grounds.^ °® An averment in the plaintiff's declaration that it was necessary for him to cross the railroad track where he was injured, does not make it incumbent upon him to prove an actual, overruling necessity for so doing, or to go further than to prove that he had law- ful right so to do.^°' ^"Mayfield v. Savannah &c. R. Co., 87 Ga. 374; s. c. 13 S. E. Rep. 459. ™ Gulf &c. R. Co. v. Anderson, 76 Tex. 244; s. c. 42 Am. & Eng. R. Cas. 160; 13 S. W. Rep. 196. "° Higglns V. Missouri &c. R. Co., 43 Mo. App. 547. ^ St. Louis &c. R. Co. V. McLain, 80 Tex. 85; s. c. 15 S. W. Rep. 789. ^'" Illinois Steel Co. v. Szutenbach, 64 111. App. 642; 1 Chic. L. J. Wkly. 323. That an allegation that a per- son, on account of his drunken con- dition, was unable to alight from a car, will admit evidence of his phys- ical incapacity and insensibility to peril caused by intoxication: Corne- lius v. Hultman, 44 Neb. 441; s. c. 62 N. W. Rep. 891. Evidence that injuries to cattle during shipment were the result of rough baadliug and switching is admissible under a general allegation of negligence in the answer: Missouri &c. R. Co. v. Chittim, 2 Am. Neg. Rep. 77; s. c. 40 S. W. Rep. 23 (no off. rep.). Plea of contributory negligence in an ac- tion for wrongfully ejecting a pas- senger not necessary to let in evi- dence that his subsequent ill health was due to other causes, — this going merely to the question of damages: Mexican &c. R. Co. v. Goodman, 43 S. W. Rep. 580 (no off. rep.). Cir- cumstances under which evidence is admissible that an injured passen- ger was directed by a servant of the railroad company to enter the coach at the rear end, without the fact be- ing pleaded: Missouri &c. R. Co. v. Brown, 39 S. W. Rep. 326 (no off. rep,). 406 RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. Article III. When a Question foe the Court, When fob THE Jury. Subdivision I. Principles, Doctrines, Theories. Sectiok 424. Reasonable care and reasonable diligence are generally ques- tions of fact. 425. Contributory negligence gener- ally a question of fact for tbe Jury. 426. Unless no recovery could be had upon any view which could be properly taken of the facts. 427. Always for the jury where the evidence is conflicting. 428. Is a question of law upon un- disputed facts which do not admit of different inferences. 429. Is a question of fact where fair-minded men might draw different conclusions from undisputed facts. 430. Is a question for the jury where facts In dispute and fair-minded men might draw different inferences from them. 431. Where the evidence so clearly shows contributory negli- Section gence that a verdict for plaintiff would be set aside. 432. Where an unavoidable infer- ence of contributory negli- gence arises out of plaintiff's own case. 433. Theory that the question is necessarily for the jury where defendant sustains burden of proving contribu- tory negligence. 434. Question is for jury when raised by defendant's testi- mony alone. 435. When question is for jury when plaintiff sustains the burden as to contributory negligence. 436. Question for jury where no standard of care is fixed by law. 437. Question when determined by a rule of exclusion. 438. In case of the violation of penal statutes. § 424. Reasonable Care and Reasonable Diligence are Generally ftuestions of Pact. — But it must remain that, outside of limited classes of cases, for the government of which the courts have been able to formulate a rule, the question what constitutes ordinary care, or reasonable diligence, is generally a question of fact for the jury.^°' It has been said that the question whether due diligence has been exer- cised is one of law, and not of fact, where the steps taken are undis- puted;^"* but this can not possibly be affirmed as a rule. These principles apply to the question of ordinary care or diligence as de- ' As to ordinary care: Pittsburgh unload a cargo: Scheu v. Benedict, Bridge Co.v.Walker, 170 111. 550, 555; s. c. 48 N. E. Rep. 915; aff'g s. c. 70 111. App. 55. As to reasonable dili- gence, — as whether a consignee pro- ceeded with reasonable diligence to 116 N. Y. 510; s. c. 22 N. E. Rep. 1073; 27 N. Y. St. Rep. 526. "»= Salt Springs Nat. Bank v. Sloan, 61 Hun 618; s. c. 39 N. Y. St. Rep. 771; 15 N. Y. Supp. 306. 407 1 Tliomp. Neg.J contributory negligence. termining the question of contributory negligence, — taking the ques- tion under most, but not all, conditions of fact, to the jury.^"" For example, the question whether a servant in a hotel, in going out on a metallic roof with his employer in the dark, to secure signs which seemed to be in danger during a heavy rain, and who came in contact with an electric wire which he knew was above the roof, but which he may not have known to be dangerous, — ^proceeded in the exercise of ordinary care, was a question for the jury.^"^ Where a note was alleged to have been procured from a maker by fraud, the question whether he exercised due care before signing it, where he did not ex- amine it because he had faith in the honesty of the other party, was held to be a question of fact.^°^ It was held to be a question of fact, and not of law, whether a purchaser of certain goods, by the exercise of reasonable care, could have discovered that they were not the kind which he asked for and intended to purchase, and was understood as purchasing.^"' § 425. Contributory Negligence Generally a ftuestion of Fact for the Jury. — As we shall see,°°* the statement is often loosely made in judicial opinions that negligence is generally a question of fact for the jury; whereas, the true rule, so far as there can be any rule, is that whether there has been contributory negligence on the part of the plaintiff is a question for the jury, under the same circumstances and subject to the same limitations as the question whether there has been negligence on the part of the defendant.^"' Loose expressions, often found in judicial opinions, to the effect that contributory negligence is generally a question for a jury, are concessions to the obvious prin- ciple that whether a man, woman, or child has used, in a particular situation, the care which such persons ordinarily use, or whether they have, under the circumstances, used reasonable care, or acted reason- ably, is a question which, as a general rule, is better determined by twelve men, on a comparison of their experience, than by a single legal scholar on the bench. And yet the judge, by reason of his long experience in trying, with the aid of juries, actions for damages *» Huntress v. Boston &c. R. Co., 100 Ga. 163; s. c. 39 L. R. A. 607; 66 N. H. 185; s. c. 34 Atl. Rep. 154; 28 S. E. 73. 49 Am. St. Rep. 600; International ""In the volume which deals with &c. R. Co. v. Ormond, 64 Tex. 485; Remedies and Procedure. Sonier v. Boston &c. R. Co., 141 »»Jalie v. Cardinal, 35 Wis. 118, Mass. 10. 129; Seigel v. Bisen, 41 Cal. 109; "^Giraudi v. Electric Improv. Co., Park v. O'Brien, 23 Conn. 339; Kan- 107 Cal. 120; s. c. 28 L. R. A. 596; sas Pacific R. Co. v. Brady, 17 Kan. 40 Pac. Rep. 108. 380; Brown v. European &c. R. Co., ""Kingman & Co. v. Reinemer, 58 58 Me. 384; New Jersey Express Co. 111. App. 173. V. Nichols, 32 N. J. L. 166; Willis v. "=■ Smith V. Clark Hardware Co., Providence Telegram Pub. Co., 20 R. I. 285; s. c. 38 Atl. Rep. 947. 408 KULES OF PROCEDURE IN CONTRIBtTTORY NEGLIGENCE. [2d Ed. grounded upon negligence, and especially in observing and comparing the demeanor of witnesses, may be, and often is, better qualified to decide the question than twelve men to whom a court-room is a strange situation, and whose minds are more or less obscured with the idea that they are to decide the question according to some artificial rule which is to be explained to them from the bench, and not according to their good sense and experience. Nevertheless, where there is no rule of law prescribing what a man shall do or refrain from doing in a particular situation, the theory of the law and the constitutional right of jury trial unite in the conclusion that the question what is ordi- nary or reasonable care in a given situation, shall be determined by twelve men in the jury box, and not by a single legal scholar on the bench.^"* It has been well reasoned that the jury have a right to find contributory negligence as a fact when the facts directly proved tend, according to the evidence of common observation and experience, to prove the deduction.^"' Decisions are sometimes met with which exaggerate this principle to the extent of saying that negligence does not cease to be a question of fact for the jury although the facts are undisputed i^"^ referring to the principle, hereafter considered,^ °^ that, although the facts may be undisputed, yet it is for the jury to draw inferences from the facts — a principle which arises only when fair minds might draw different inferences from them. On the other hand, a judge may roll his eyes with a wise gravity and tell us that, whether the conclusion of contributory negligence upon an undisputed state of facts is for the jury or for the court, depends largely upon the facts and circumstances of each particular case,^^* — a statement which gives us no rule nor any approach to a rule. § 426. Unless No Kecovery could be had upon Any View which could be Properly Taken of the Facts. — In the courts of the United States, it is frequently said that the trial court is bound to submit the case to the jury, unless no recovery could be had upon any view that could properly be taken of the facts which the evidence tends to ""Albion V. Hetrick, 90 Ind. 545; 183; Sheff v. Huntington, 16 W. Va. Millcreek Twp. v. Perry (Pa.), 12 307, 326; Hagerstrom v. West Chi- Atl. Rep. 149; 20 W. N. C. 359 (no cage Street R. Co., 67 111. App. 63; off. rep.) ; Ramsey v. Rushville &c. s. c. 1 Cliic. L. J. Wkly. 676. Gravel Road Co., 81 Ind. 394; Cook ""Allis v. Columbian University, V. Missouri &c. R. Co., 19 Mo. App. 19 D. C. (8 Mackey) 270; s. c. 18 329; Gulf &c. R. Co. v. Moore, 69 Wash. L. Rep. 687. Tex. 157; s. c. 6 S. W. Rep. 631; '■» Bronsori v. Oakes, 40 U. S. App. Houston &c. R. Co. v. Wilson, 60 413; s. c. 22 C. C. A. 520; 76 Fed. Tex. 142, 143; Texas &c. R. Co. v. Rep. 734. Levi, 59 Tex. 675; Galveston Oil Co. '°' Post, § 429. V. Thompson, 76 Tex. 235; s. c. 13 ""Chicago City R. Co. v. Menely, S. W. Rep. 60; Carver v. Detroit &c. 79 HI. App. 679. Co., 69 Mich. 616; s. c. 25 N. W. Rep. 409 1 Thomp. Neg.J contributory negligence. establish.' ^^ Substantially the same theory has been expressed by the Supreme Court of Iowa thus : "If the facts are such that but one conclusion can reasonably be drawn from them, it is the province of the court to determine that conclusion. But, if different minds might reasonably reach different conclusions from them, the parties are entitled to have the question determined by the jury."^^^ The. meaning is that, in many cases, the evidence will speak unequivocally ' in favor of the conclusion that the person killed or injured was guilty of contributory negligence, in which case the conclusion will be de- clared by the court as matter of law, — as where an employe in a mine was notified that the mine was on fire and that he ought to leave it, in ample time to have escaped if he had heeded the warning.'^^ § 427. Always for the Jury where the Evidence is Conflicting.^ — In all cases where, in order to decide whether the person injured was guilty of contributory negligence, it is necessary to decide for or against the existence of a hypothesis of fact as to which the evidence is conflicting, the question necessarily is for the jury,''^* — of course, as in all cases under proper directions from the court. It was ably said in a California case by Mr. Commissioner Searls : "The law can only define the duty of individuals under given circumstances. The existence of the circumstances is a question of fact for the jury."'^° This necessarily results from the premise that in every system of jury "'Dunlap V. Northeastern R. Co., R. Co., 64 Minn. 466; s. c. 67 N. W. 130 U. S. 649; s. c. 32 L. ed. 1058; Rep. 363. 9 Sup. Ct. Rep. 647; Kane v. North- a This section is cited in § 429. ern &c. R. Co., 128 U. S. 91; Jones =" Ramsey v. Rushville &c. R. Co., V. East Tennessee &c. R. Co., 128 U. 81 Ind. 394, 397 ; Harmon v. Wash- S. 443. ington &c. R. Co., 7 Mackay (D. C.) '"Whitsett V. Chicago &c. R. Co., 255; s. c. 17 Wash. L. Rep. 426; 67 Iowa 150, 159; Rebelsky v. Chi- Thiessen v. Belle Plaine, 81 Iowa cago &c. R. Co., 79 Iowa 55, 60. Sub- 118; Western Maryland R. Co. v. stantially to the same effect, see: Kehoe, 86 Md. 43; s. c. 37 Atl. Rep. Klinkler v. Wheeling Steel &c. Co., 799; Church v. Chicago &c. R. Co., 43 W. Va. 219; s. c. 27 S. E. Rep. 119 Mo. 203; s. c. 23 S. W. Rep. 237; Bridges v. Tennessee Coal &c. 1056; Fox v. Spring Lake Iron Co., R. Co., 109 Ala. 287; s. c. 19 South. 89 Mich. 387; s. c. 50 N. W. Rep. Rep. 495; Northern &c. R. Co. v. 872; McAlpine v. Laydon, 115 Cal. Austin, 64 Fed. Rep. 211; s. c. 12 68; s. c. 46 Pac. Rep. 865; Delaware C. C. A. 97. &c. R. Co. V. Converse, 139 U. S. '"■Pugh V. Oregon Imp. Co., 14 469; s. c. 35 L. ed. 213; 11 Sup. Ct. Wash. 331; s. c. 44 Pac. Rep. 547; Rep. 569; Williams v. Syracuse &c. aff'd on rehearing in 14 Wash. 342; Iron Works, 31 Hun (N. Y.) 392; s. c. 44 Pac. Rep. 689. Circum- Tolman v. Syracuse &c. R. Co., 31 stances conclusively showing con- Hun (N. Y.) 397; Stever v. New trihutory negligence in a driver who York &c. R. Co., 7 App. Div. 392 ; attempted to cross a cable railway s. c. 39 N. Y. Supp. 944; appeal de- track so close to an approaching nied in 151 N. Y. 50; s. c. 54 Alb. car that it struck his horse on the L. J. 377; 45 N. B. Rep. 371. shoulder: O'Connell v. St. Paul City =">Dufour v. Central &c. R. Co., 67 Cal. 319, 323. 410 RULES OF PROCEDUEE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. trial, and especially in the United States, where the right of trial by jury in actions at common law is guaranteed by constitutional sanc- tions, the judge can not presume to determine whether a given propo- sition of fact has been proved or disproved, where the evidence is con- flicting, or where the credibility of witnesses is involved; for so to do would invade the province of the jury and infringe the constitutional right of trial by jury. This is subject to power of the judge, to the extent to which he is not restrained by statutory or constitutional pro- visions, to grant a new trial where, in his opinion, the verdict is de- cidedly against the weight of the evidence. If we adhere to princi- ples hereafter stated,'^'' we must conclude that in every question, both of the negligence of the defendant and the contributory negligence of the plaintiff, there are two ingredients: 1. The actual facts sur- rounding the accident. 2. The inferences to be deduced from those facts as to whether there was ordinary or reasonable care. Both of these questions are for the jury, except in cases where both of them are so unequivocal as to present no question for doubt or disagreement on the part of fair-minded men. It follows from this, that although the evidence in a case may tend to show contributory negligence, yet, unless it is conclusive, within the principles of the foregoing state- ment, it presents a question of fact for the jury.^^^ Applying this principle, it has been held that the question of contributory negligence must be left to the jury, where the evidence introduced by the plaintiff, though materially contradicted by that introduced by the defendant, would warrant the inference that the plaintiff was in the exercise of due care;^^^ where the evidence is conflicting on the question whether the person injured was aware of the facts from which the danger arose ;^^' where one witness testifies that the deceased at the time of the accident was standing in a place where he ought not have been, and another witness testifies to the contrary.^^" The principle has been carried to the extent of holding that the court is not justified in taking the question of contributory negligence from the jury, where there is evidence which, if believed, would negative the conclusion of contributory negligence, although it may seem to the court almost incredible.^ ^^ But this principle is not acted upon in the State where '"Post, §§ 428, 429, 430. '""Fox v. Spring Lake Iron Co., 89 "' Bitting V. Maxatawny Twp., 180 Mich. 387 ; s. c. 50 N. W. Rep. 872. Pa. St. 357; s. c. 36 Atl. Rep. 855; '^McAlpine v. Laydon, 115 Cal. Promer v. Milwaulcee &c. R. Co., 90 68; s. c. 46 Pac. Rep. 865. "Wis. 215; s. c. 63 N. W. Rep. 90; ™ Stever v. New Yorli; &c. Co., 7 Stedman v. Rome, 88 Hun (N. Y.) App. Div. 392; s. c. 39 N. Y. Supp. 279; s. c. 34 N. Y. Supp. 737; 68 N. 944; appeal denied In 151 N. Y. 50; Y. St. Rep. 555. s. c. 54 Alb. L. J. 377; 45 N. E. Rep. ""Western Maryland R. Co. v. 371. Kehoe, 86 Md. 43; s. c. 37 Atl. Rep. 799. 411 1 Thomp. Neg.] contributory negligence. this holding is made; on the contrary, the appellate courts of that State continually decide questions of negligence on their view of the preponderance of the evidence, whatever their preponderance may be.^^^ The Supreme Court of the United States does not review and settle questions of conflicting evidence in actions at law; and that rule, of course, applies in actions for damages grounded on negli- gence. So that where the question of the plaintiff's contributory negligence has been properly submitted to the Jury, upon evidence which is conflicting, and there is no error of law, that court will affirm the judgment.'"^ § 428. Is a Question of Law upon Undisputed Facts which do not Admit of Diflferent Inferences.^ — Eoundly speaking, where the undis- puted facts clearly show negligence on the part of the person injured, contributing to the accident, the judge ought to direct a nonsuit or a verdict for the defendant, although in order to do so he must neces- sarily find an affirmative fact, namely, that there was contributory negligence.^^* Prom what has preceded, the obvious meaning of this statement is: 1. That the facts must be undisputed in such a sense that no issue or fact is left for the jury to pass upon. 2. The facts admit of no reasonable deduction save that of contributory negligence. Unless both of these conditions concur, the question must be sub- mitted to the jury.^^° The principle is susceptible of application '^^ They will take the case from Howes v. District of Columbia, 22 the jury where the conduct of the Wash. L. Rep. 41; Kenna v. Central plaintiff appears to have been pal- &c. R. Co., 101 Cal. 26; s. c. 35 Pac. pably careless: Bell v. New York &c. Rep. 332 (testimony of a single wit- R. Co., 29 Hun (N. Y.) 560. ness, clear, unequivocal, and uncon- °^ Delaware &c. R. Co. v. Converse, tradicted) ; Zlotovsky v. Twenty- 139 U. S. 469; s. c. 35 L. ed. 213; 11 third Street R. Co., 8 Misc. (N. Y.) Sup. Ct. Rep. 569. 463; s. c. 59 N. Y. St. Rep. 581; a This section is cited^ in §§ 350, 28 N. Y. Supp. 661; Jenkins v. Cen- 427. tral R. &c. Co., 89 Ga. 756; s. c. 15 =2*Flemming v. Western Pacific S. B. Rep. 655; Missouri &c. R. Co. R. Co., 49 Cal. 253; McQuilken v. v. Moseley, 6 C. C. A. 641; s. c. 57 Central Pacific R. Co., 50 Cal. 7; Fed. Rep. 921; Vuzzo v. Brooklyn Donaldson v. Milwaukee &c. R. Co., Heights R. Co., 15 Misc. (N. Y.) 21 Minn. 293; Brown v. Milwaukee 691; s. c. 36 N. Y. Supp. 1134; Ash- &c. R. Co., 22 Minn. 165; Callahan worth v. East Tennessee &c. R. Co., V. Warne, 40 Mo. 131; Norton v. 97 Ga. 306; s. c. 23 S. E. Rep. 86; Ittner, 56 Mo. 351; New Jersey Ex- Lee. v. Comer, 97 Ga. 311; s. c. 22 press Co. v. Nichols, 32 N. J. L. S. E. Rep. 920; District of Columbia 166; s. c. affirmed, 33 N. J. L. 434; v. Brewer, 7 App. D. C. 113; s. c. Owen V. Hudson River R. Co., 35 23 Wash. L. Rep. 724; St. Louis &c. N. Y. 516; Curran v. Warren Man. R. Co. v. Whittle, 74 Fed. Rep. 296; Co., 36 N. Y. 153; Mackay v. New s. c. 20 C. C. A. 196; 40 U. S. App. York &c. R. Co., 27 Barb. 528; Lud- 23; Campbell v. Wood, 22 App. Div. wig V. Pillsbury, 35 Minn. 256; Mar- (N. Y.) 599; 48 N. Y. Supp. 46. tin V. Bishop, 59 Wis. 417 ; Glascock ^^ McMurtrey v. Louisville &c. R. V. Central &e. R. Co., 73 Cal. 137; Co., 67 Miss. 601; s. c. 7 South. Rep. s. c. 14 Pac. Rep. 518; Dull v. Cleve- 401; 7 Rail. & Corp. L. J. 473; land &c. R. Co., 21 Ind. App. 571; s. c. Smith v. Occidental &c. Co., 99 Oal. 1 Repr. 676; 52 N. B. Rep. 1013; 462, 467; s. c. 34 Pac. Rep. 84. 412 KULE3 OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. both ways. Where there is no substantial evidence of contributory negligence fit to be submitted to the jury, and all the inferences that can fairly be drawn from the evidence point to the conclusion that there was no such negligence, it is the duty of the court so to decide, and so to instruct the jury.''-'* In Pennsylvania the following doc- trine was laid down by Sterrett, C. J., speaking for the court : "Com- prehensively defined, 'negligence is the absence of care according to the circumstances'; and it is always a question for the jury where there is a reasonable doubt, either as to the facts, or inferences of fact to be drawn from the testimony. When the measure of duty is ordi- nary or reasonable care, and when the degree of care varies according to the circumstances, the question of negligence is always for the jury; but, when facts constituting negligence are either admitted or con- clusively established by undisputed evidence, it is of course the duty of the court to declare the law applicable thereto."*^'' If it is in- tended by the learned judge, in the last sentence, to lay down the doctrine that the question of negligence, where the facts are undis- puted, is always one of law, it is believed to be radically unsound. It is generally a deduction of fact from other facts, and not a conclusion of law. It is not a question of law except where the statute law, or a valid municipal ordinance, or the case-made law, makes, for a given situation, a definite rule of conduct, which the person injured has violated, — such as the rule which obtains in some jurisdictions that a person approaching a railroad track must stop, look, and listen.^^* Speaking intelligently on this subject. Beck, C. J., said : "Cases fre- quently arise wherein it becomes the duty of the trial court to de- termine the question of negligence of a party as a matter of law, as where the facts clearly show an obvious disregard of duty and safety, where a party has failed in a clear legal duty, where the evidence so clearly shows the want of prudence and discretion that there can be nothing for the jury to pass upon."^^' This being so, the loose state- ment of doctrine frequently met with, as shown by the eases cited in the margin, ^^^ and many more 'that might be cited, to the effect that '*■ Bills V. Kaukauna, 94 Wis. 310; Mich. 440; s. c. 47 N. W. Rep. 513; 68 N. W. Rep. 992. aff'g 83 Mich. 432; s. c. 47 N. W. Rep. '"Gates V. Pennsylvania R. Co., 319; Wallace v. Western &c. R. Co., 154 Pa. St. 566; s. c. 26 Atl. Rep. 98 N. C. 494; s. c. 4 S. E. Rep. 503; 598. 2 Am. St. Rep. 364; Columbus &c. ^^Post, next volume. See, as sup- R. Co. v. Bradford, 86 Ala. 574, 584; porting the author's view, Gulf &c. s. c. 6 South. Rep. 90; 6 Rail. & Corp. R. Co. v. Greenlee, 70 Tex. 553, 562; L. J. Ill (facts uncontradicted Texas &c. R. Co. v. Murphy, 46 Tex. and "free from diverse inferences"). 356. Smith v. North Carolina R. Co., 64 '^ Colorado Central R. Co. v. Mar- N. C. 235 ; Snoddy v. Huntington, tin, 7 Col. 592, 698. 37 W. Va. Ill; s. c. 16 S. E. Rep. ™Apsey V. Detroit &c. R. Co., 83 442 (syllabus); Hanley v. Hunting- 413 1 Thomp, Neg.] contributory negligence. where the facts are ascertained, contributory negligence is a question of law for the court, may well be challenged as unsound. It may be doubtful whether the courts which have fallen into this last state- ment of doctrine, really intend to lay down a different rule from that announced in the preceding section.''^ § 429. Is a ftuestion of Fact where Fair-Minded Men Might Draw Different Conclusions from Undisputed Facts.^ — In the original edi- tion of this work, the author said "that where the facts are undis- puted, or where but one reasonable inference can be drawn from them, the question is one of law for the court ; but where the facts are left by the evidence in dispute, or where fair minds might draw different conclusions from them, it must go to the jury, to resolve the dispute in the one case, or to draw the inferences in the other." *'^ In using this language, and in endeavoring to frame a comprehensive statement, the author threw two elements together which are now treated separately. Where the facts which speak upon the question of contributory negli- gence are controverted by the evidence the jury must always resolve that controversy.^^^ But where the facts which speak upon the ques- tion are undisputed or established, it will often happen that fair- minded men will differ as to the further deduction of fact — for ex- cept where the law condemns the act or omission, it is a deduction of fact and not of law — involved in the inquiry whether, in what the person injured did or omitted to do, he exercised reasonable or ordi- nary care. Accordingly, we have the rule, agreed to by many courts, and, so far as the author knows, disputed by none, that, although the facts from which the deduction of contributory negligence is or is not ton, 37 W. Va. 578; s. c. 16 S. E. Rep. Compare Thrlngs v. Central Park 807 (syllabus); McPMllips v. New R. Co., 7 Robt. (N. Y.) 616. Many York &c. R. Co., 37 N. Y. St. Rep. cases couple tbese two elements sub- 263; 13 N. Y. Supp. 917; aff'd in stantially as in the above text: 39 N. Y. St. Rep. 50; 14 N. Y. Supp. Davies v. Oceanic Steamship Co., 89 928. Cal. 280; Swoboda v. Ward, 40 Mich. ^" Where, in an action for negli- 424; Smith v. Occidental &c. Steam- gence, the evidence as presented in ship Co., 99 Cal. 462; Klotz v. Wi- the record clearly shows plaintiff's nona &c. R. Co.^ 68 Minn. 341; s. c. contributory negligence to have op- 71 N. W. Rep. 257; Leonard v. Min- erated as the proximate cause of the neapolis &c. R. Co., 63 Minn. 489; injuries, the case will be disposed s. c. 65 N. W. Rep. 1084 ; Washington of and a judgment for the plaintiff &c. R. Co. v. Tobriner, 147 U. S. 571, reversed on consideration of the 577; s. c. 37 L. ed. 284; 21 Wash, plaintiff's evidence alone, as re- L. Rep. 231; 13 Sup. Ct. Rep. 557; quired by the rule prescribed in Va. Cincinnati &c. R. Co. v. Grames, 8 Rev. Code 1889, §3484: Richmond Ind. App. 112, 133; s. c. 34 N. E3. &c. R. Co. V. Pickleseimer, 85 Va. Rep. 613; Rogers v. Leyden, 127 798; s. c. 13 Va. L. J. 646; 10 S. E. Ind. 50; Baltimore &c. R. Co. v. Rep. 44. Walborn, 127 Ind. 142; Franklin v. a This section is cited in §§ 354, Harter, 127 Ind. 446; Shoner y, 376, 425, 427. Pennsylvania Co., 130 Ind. 170. "' Norton v. Ittner, 56 Mo, 351. ^ Ante, § 427. 414 KULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. to be drawn, are not in dispute, yet where fair-minded men might draw different deductions from them as to whether they show negli- gence in the person injured, the question is to be submitted to the jury.''* It must be apparent that this rule in the concrete, means no more or less than this, that when the fair-minded man on the bench thinks he is better capable of deciding the question than the twelve fair-minded men in the jury box, he will decide it without taking their verdict upon it. There are different ways of stating the doctrine, but they all come back to the conclusion just stated : the judge will submit the question to the jury, where he, the judge, can not positively say that the plaintiff was guilty of contributory negligence;''^ or where there is any doubt upon the subject (that is to say, doubt in the mind of the trial judge, or in the minds of the judges of the court of ap- peal). "° Or, stated negatively, the judge is not warranted in with- drawing the question from the jury, unless the proof of contributory negligence is so clear and decisive as not to leave room (in his opinion) for impartial and unbiased minds to arrive at any other conclusion.'" § 430. Is a ftuestion for the Jury where Facts in Dispute and Fair- Minded Men Might Draw Different Inferences from Them.^ — For stronger reasons, where both of the two elements just described are present — where the facts which speak upon the question of contribu- »=* Detroit &c. R. Co. v. Van Stein- Mich. 239, 245; s. c. 23 N. W. Rep. berg, 17 Mich. 99, 120; Railroad Co. 795; Erickson v. Twenty-third V. Stout, 17 Wall. (U. S.) 657, 663; Street R. Co., 71 Hun (N. Y.) 108; Patterson v. Wallace, 1 McQueen H. s. c. 53 N. Y. St. Rep. 934; 24 N. Y. L. Cas. 748; Mangam v. Brooklyn Supp. 603; Drain v. St. Louis &c. R. R. Co., 38 N. Y. 455; Brezee v. Pow- Co., 86 Mo. 574; Potter v. New York ers, 80 Mich. 172; s. c. 45 N. W. Rep. &c. R. Co., 61 N. Y. Super. 351; s. c. 130; Wiel v. Wright, 55 Hun (N. Y.) 46 N. Y. St. Rep. 895; 19 N. Y. Supp. 611; 29 N. Y. St. Rep. 763; 8 N. Y. 862. "If the case presents a fairly Supp. 776; Parker V. Lake Shore &c. dehataMe question whether the R. Co., 20 111. App. 280; Luke v. plaintiff's negligent conduct so con- Wheat Min. Co., 71 Mich. 364; s. c. tributed, the solution of that ques- 39 N. W. Rep. 11; 15 West. Rep. tion is for the jury:" Pennsylvania 398; O'Malley v. Scranton Traction &c. R. Co. v. Righter, 42 N. J. L. Co., 191 Pa. St. 410; s. c. 44 W. N. 180, 183. C. 339; 43 Atl. Rep. 313; Indiana ^Whittaker v. Delaware &c. R. Pipe-Line &c. Co. v. Neushaum, 21 Co., 58 Hun (N. Y.) 606; s. c. 34 Ind. App. 361; s. c. 5 Am. Neg. Rep. N. Y. St. Rep. 822; 11 N. Y. Supp. 126; 1 Repr. 500; 52 N. E. Rep. 471; 914; afE'd in 126 N. Y. 544; s. c. 38 Teipel v. Hilsendegen, 44 Mich. 461; N. Y. St. Rep. 523; 27 N. E. Rep. Threlkeld v. Wabash R. Co., 68 Mo. 1042. App. 127; Vasele v. Grant Electric ^" Hahn v. Chicago &c. R. Co., 78 R. Co., 16 Wash. 602; s. c. 9 Am. & Wis. 396; s. c. 47 N. W. Rep. 620. Eng. Rail. Cas. (N. S.) 75; 48 Pac. '^Valin v. Milwaukee &c. R. Co., Rep. 249; Beaver v. Atchison &c. R. 82 Wis. 1; s. c. 51 N. W. Rep. 1084; Co., 56 Kan. 514; s. c. 43 Pac. Rep. Moffat v. Tenney, 17 Colo. 189; s. c. 1136; Daly v. Sang, 91 Wis. 336; 30 Pac. Rep. 348. s. c. 64 N. W. Rep. 997. As more or a This section is cited in §§ 427, less supporting this view, see : Staal 473, 476. V. Grand Rapids &c. R. Co., 57 415 1 Thomp. Neg.J contributory negligence. tory negligence are in dispute and fair-minded men might draw dif- ferent inferences from them, — the question of contributory negligence will be for the jury.^^' A good illustration of this principle is fur- nished by a decision in a jurisdiction where the burden of proving contributory negligence rests on the defendant. The action was for the death of a miner, an employe in the mine of the defendant, who was killed while descending the mine in the course of his duties. There was evidence of gross negligence on the part of the defendant in not repairing and keeping safe the ladder on which the descent was made. There were reasons and theories upon which the manner of making the descent might be reconciled with the conclusion of reason- able care on the part of the deceased for his own safety. Here it was held that a nonsuit ought not to be granted.^^" § 43i. Where the Evidence so Clearly Shows Contributory Negli- gence that a Verdict for the Plaintiff would be Set Aside.'^ — The struggle of the courts to get a more definite rule upon this question, has resulted in a rule which is now frequently applied, as we shall see hereafter, in determining whether there was evidence of negligence on the part of the defendant fit to be submitted to the jury, as appli- cable to the question of contributory negligence. That principle is that where the evidence so clearly shows that the plaintiff was guilty of contributory negligence that a verdict rendered in his favor would necessarily be set aside, it is the duty of the court to direct a verdict for the defendant.^*" But great caution should be used in applying this principle. Before venturing to decide a question himself, instead of submitting it to the Jury, the judge may well take the opinion of the jury upon it, and if he finds that opinion opposed to his own, he may well pause and reconsider his own opinion with greater delibera- tion, upon a motion for new trial, instead of concluding that he is better capable of dealing with questions of fact than the twelve men in the jury box, thus deciding the case under the stress of the supreme thought of the hour. § 432. Where an Unavoidable Inference of Contributory Negli- gence Arises out of the Plaintiff's Own Case.'' — As already seen,^*^ although the rule of the particular jurisdiction may put the burden of proving contributory negligence upon the defendant, yet if an un- '=' Washington &c. R. Co. v. Mc- a This section is cited in § 367. Dade, 135 U. S. 554, 571; s. c. 34 "° Goodlett v. Louisville &c. R. L. ed. 235; 18 Wash. L. Rep. 526; 42 Co., 122 U. S. 391. Alb. L. J. 175; 10 Sup. Ct. Rep. 1044. b This section is cited In §§ 374, ™ Reese v. Morgan Silver Min. Co., 401, 419, 471. 15 Utah 453; s. c. 49 Pac. Rep. 824. ^' Ante, § 369. 416 RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2(1 Ed, avoidable inference of contributory negligence arises out of the plaint- iff's own evidence, it is the duty of the judge to order a nonsuit, or to direct a verdict for the defendant, according to the practice of the court.'*^ For example, an administrator suing under a statute for the death of his intestate caused by negligence or wrongful act, whose testimony shows that the negligence of deceased contributed directly to the injuries resulting in his death, has failed to make out a prima facie right of recovery, and a demurrer to the evidence should be sus- tained.3" § 433. Theory that the ftuestion is Necessarily for Jury where De- fendant Sustains Burden of Proving Contributory Negligence. — In one State, where contributory negligence is held to be an affirmative defense to be alleged and proved,^** it is held that the question is necessarily for the jury in all cases, since it necessarily involves the credibility of the defendant's witnesses. The true idea seems to be that the court can no more say, as matter of law, that the defendant's special affirmative defense has been made out, than it can say, as a matter of law, that the plaintiff's case has been made out; hence the conclusion is that the judge can not direct a nonsuit on the ground of contributory negligence.' *° But this rule can only be applied in cases where the evidence of contributory negligence is presented en- tirely by the defendant. If the plaintiff himself proves a state of facts which shows contributory negligence as matter of law, then the coiirt may grant a nonsuit, or direct a verdict for the defendant, ac- cording to the course of practice in the particular jnirisdiction.'*' If, however, the rule of the jurisdiction requires the defendant to plead and prove contributory negligence as a special defense, and con- tributory negligence is not pleaded, and there is no evidence of it in the plaintiff's case, then the issue is properly withheld from the jury.'^' '"Brennan v. Front Street Cable Columbia &c. R. Co., 39 S. C. 514; R. Co., 8 Wash. 363; s. c. 36 Pac. s. c. 18 S. E. Rep. 119. Rep. 272; Hamilton v. Third Ave. ^'Ante, § 369. R. Co., 6 Misc. (N. Y.) 382; s. c. ^' Jennings v. Schwab, 64 Mo. App. 56 N. Y. St. Rep. 397; 26 N. Y. 13; s. c. 2 Mo. App. Rep. 923. The Supp. 754. statement that the question of con- '^^ Dewald v. Kansas City &c. R. tributory negligence is for the jury, Co., 44 Kan. 586; s. c. 24 Pac. Rep. where the court is not satisfied that 1101. the evidence, as matter of law, es- '" Ante, § 366. tablishes such negligence, or be- *" Petrie v. Columbia &c. R. Co., lleves that, under the evidence, rea- 29 S. C. 303, 319 ; s. c. 7 S. E. Rep. sonable minds might differ upon the 515; Carter v. Columbia &c. R. Co., question (McKune v. Santa Clara 19 S. C. 20; Darwin v. Charlotte &c. Valley &c. R. Co., 110 Cal. 480; s. c. R. Co., 23 S. C. 531; Bouknight v. 42 Pac. Rep. 980) is about as cloudy Charlotte &c. R. Co., 41 S. C. 415; as could well be conceived ; for when s. c. 19 S. E. Rep. 915; Kinard v. can the court say that the evidence, VOL. 1 THOMP. NKG.^27 417 1 Thomp. Neg.] contributory negligence. §434. ftuestion is for Jury when Raised by Defendant's Testi- mony Alone. — Beyond question, in all cases where, under the rule of the jurisdiction, the burden of alleging and proving contributory neg- ligence is placed upon the defendant, the question is for the jury where the hypothesis of fact upon which the conclusion of contribu- tory negligence is predicated is raised solely by the evidence adduced by the defendant. The reason is that the conclusion depends upon the credibility of the defendant's witnesses, and the plaintiff has the right to have that passed upon by the jury.^*^ § 435. When ftuestion is for Jury where Plaintiff Sustains the Burden as to Contributory Negligence. — In those jurisdictions where the illogical and unjust rule prevails that the burden of clearing him- self, or the person on account of whose death or injury the action is brought, from the imputation of contributory negligence rests on the plaintiff, the rule is that the question whether or not he was guilty of contributory negligence must be left to the jury, where he has ad- duced any substantial evidence, direct or circumstantial,^'*^ tending to show that he was in the exercise of due care.'^" Where this rule pre- vails, the plaintiff's own contributory negligence, or the contributory negligence of the person killed or injured, is presumed until the plaintiff makes the contrary appear ; and hence if there is no evidence as matter of law, establishes con- tory negligence as a matter of law, tributory negligence, where the bur- it must be shown, without substan- den is on the defendant, without tial contradiction, that the party in- passing upon the credibility of the jured did not, at the time, exercise witnesses, who testified to that af- the care of an ordinarily prudent firmative conclusion, except in cases person, and that such want of care where an unavoidable inference of contributed to the injury; other- contributory negligence arises out wise the question must be left to the of the testimony adduced by the jury: Young v. Missouri &c. R. Co., plaintiff himself? But where the 72 Mo. App. 263. In another case conclusion to be drawn from the in the same jurisdiction, — an action evidence as to whether the person for damages for causing death,T-it injured was in the exercise of ordi- was said that contributory negli- nary care depends upon the applica- gence can only avail the defendant tory circumstances involving many as a ground for non-suit where the elements of time, place, &o., then plaintiff's evidence shows conclu- the court manifestly can not rule as sively that the deceased was want- matter of law that any fixed stand- ing in due care: Ray v. Poplar Bluff, ard of prudent conduct was required 70 Mo. App. 252. under the circumstances, and the ^' Downey v. Pittsburgh &c. Trac- question is necessarily for the jury: tion Co., 161 Pa. St. 131; s. c. 24 Christman v. Philadelphia &c. R. Pitts. L. J. (N. S.) 439; 34 W. N. C. Co., 141 Pa. St. 604; s. c. 21 Atl. 380; 28 Atl. Rep. 1019. Rep. 738; 28 W. N. C. 5; 22 Pitts. ^' Ante, § 414. L. J. (N. S.) 57; 48 Phila. Leg. Int. ="» Carver v. Detroit &c. Plank 338. In another jurisdiction where Road Co., 69 Mich. 616; Greany v. this rule as to the burden of proof Long Island &c. R. Co., 101 N. Y. prevails, it has been reasoned that, 419; Chicago &c. R. Co. v. Carey, to justify the trial court in peremp- 115 111. 115; Toledo &c. R. Co. v, torily declaring that defendant has Clark, 147 111. 171; s. c. 35 N. E. Rep. made out his defense of contribu- 167; aff'g s. c. 49 111. App. 17. 418 RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. speaking Upon the subject, it is the duty of the judge to direct a ver- dict for the defendant.*'^ § 436. Question for Jury Where No Standard of Care is Fixed by Law. — It is sometimes said that the question of contributory negli- gence is for the jury where no standard of care on the part of the plaintiff is fixed by law. This proposition, so formulated, can not stand. Except for the carrier of passengers,^ °^ the law fixes for all cases a standard of care, which is the ideal standard of ordinary or reasonable care. When the evidence shows conclusively that the per- son injured failed to exercise this standard of care, and that his fail- ure was one of the factors which produced the injury which he re- ceived, then the court, in the exercise of its power over the jury, will direct a verdict for the defendant, or order a nonsuit, according to its course of procedure. § 437. Question when Determined by a Eule of Exclusion. — The courts frequently endeavor to define the cases where contributory negligence is for the jury by stating the limited cases in which it is for the court, and then, by this rule of exclusion, leaving all other cases for the decision of juries. Thus, in Indiana it is said: "It is only when the standard of duty is fixed and certain, or where the measure of duty is defined by law, and is the same under all circum- stances, or when the negligence is so clear and palpable that no ver- dict could make it otherwise, that the question of negligence becomes one of law and not of fact."*°* § 438. In Case of the Violation of Fenal Statutes. — The violation of statutes and valid municipal ordinances, enacted to promote the public safety, is generally regarded as negligence per sef^* though in some States, as in New York, it is regarded as prima facie evidence of negligence only.^°° In the same State the violation of a statute or of a municipal ordinance prohibiting the driving upon sidewalks, has been held to operate no further than as prima facie evidence of con- tributory negligence, taking the question to the jury, — especially where it was not clear that the statute and ordinance were intended to ™ Kauffman v. Cleveland &c. R. ^' A -subject considered in a future Co., 144 Ind. 456; s. c. 43 N. B. Rep. volume. 446; Oleson v. Lake Shore &c. R. »»' Albion v. Hetrick, 90 Ind. 545, Co., 143 Ind. 405; s. c. 32 L. R. A. 547, opinion by Bicknell, C. C. 149; 42 N. E. Rep. 736; Terry v. ^ Cordell v. New York &c. R. Co., Louisville &c. R. Co., 15 Ind. App. 64 N. Y. 535, 538. 353; s. c. 43 N. E. Rep. 273; rehear- ^ Ante, § IL ing denied in 44 N. E. Rep. 59. 419 1 Thomp. Neg.] contributory negligence. promote the public safety.^^' A judicial intimation is found to the effect that where an employe of a railway company sustains an injury in consequence of a direct and flagrant violation by the company of a statute or municipal regulation, as in running a train at a prohibited rate of speed, contributory negligence should be clearly made out in order to withhold the case from the jury, upon that ground.^^^ The language employed by the court seems to imply that in such a case the evidence of contributory negligence ought to be stronger than in other cases, in order to enable the court to say that the injured person was guilty of it as matter of law.^'* Subdivision II. Application of these Doctrines in Various Condi- tions of Fact. Section 441. In case of acting erroneously in the presence of a sudden peril. 442. In case of an injury received in obeying the directions of another. 443. In cases of injuries to children. 444. Examples of the question in other cases of injuries to children. 445. In the case of accepting risks with knowledge that there is some danger. 446. In the case of failing to ob- serve and discover sources of danger. 447. In cases of injuries received in using defective highways, bridges, sidewalks, Section streets, etc. In cases of collisions and sim- ilar accidents in using the highway. In the case of accepting the lease of a house infected with disease. In cases of railway injuries. In cases of railway fires. 452. In cases of intoxication of the person injured. 453. In case of the subsequent neg- ligence of plaintiff in treat- ment of the injury. 454. A collection of cases where negligence was held to be a question for the jury. 448. 449". 450. 451. ™ Fisher v. Cambridge, 133 N. Y. 527; s. c. 44 N. Y. St. Rep. 317; 30 N. E. Rep. 663. =" Bluedorn v. Missouri &c. R. Co., 108 Mo. 439; s. c. 18 S. W. Rep. 1103. ^ Bluedorn v. Missouri &c. R. Co., supra; Petty v. Hannibal &c. R. Co., 88 Mo. 306. These cases support the conclusion that where the statute law imposes upon railway companies the duty of giving warning for the safety of the public, if a person injured by the omission of such duty has in other respects exercised due care, his recovery will not be barred because he acted upon the presump- tion that the warning would have 420 been given if the danger existed. For instance, in the Petty case the signal was given when the train was within forty rods of the cross- ing, instead of eighty, as the statute required; the situation was such that the plaintiff could not see an approaching train for more than eighty rods, and if the train had been that distance away when the signal was given he would have had ample time to cross. The court held that he was justified in sup- posing that the signal was properly given. To same effect is Johnson v. Chicago &c. R. Co., 77 Mo. 552. KULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d. Ed. § 441. In Case of Acting Erroneously in the Presence of a Sudden Peril. — Eecurring to what has already been said upon this question/^* it is to be observed here that the question wliether one who acted erroneously to his hurt under the sense of fear produced by a sudden peril, failed to exercise the care which ought to be expected under the circumstances, is generally, if not always, a question for the jury.''" § 442. In Case of an Injury Received in Obeying the Directions of Another. — Contributory negligence is not generally imputed to one who acts erroneously and to his hurt in obeying the directions given by another, who is clothed with authority, or apparent authority, to make them, but it will be a question for the jury.'^^ § 443. In Cases of Injuries to Children. — The question whether, in a particular case, an injured child, not wholly irresponsible, exercises the care and caution usually looked for in other children of like age and capacity, is generally for the jury.^^^ Thus, it has been held a question for the jury whether the familiarity of a female child, in- jured on a street car track, with the street cars, and her knowledge that they passed frequently down the street where she was injured, rendered her guilty of contributory negligence, where she attempted to cross the street over the track without looking to see whether or not the car was approaching ;^^^ whether a boy six years old, who ad- mitted that he knew the danger to be apprehended from teams in crossing a street, and yet did not look elsewhere than directly in front, was guilty of contributory negligence ;^''^ whether the failure of a school child to look or listen before attempting to cross a street car track shows a want of the degree of care which could reasonably have been expected of such a child ;'*°° whether the parents of a child five years old were guilty of contributory negligence in allowing him to be on the street with a sister two years older, precluding recovery for his death from being run over by a street car under circumstances which would have rendered a person sui juris guilty of contributory negli- ="Aw Fisher v. Cambridge, 133 N. Y. s. c. 8 Rail. & Corp. L. J. 489. 527; s. c. 44 N. Y. St. Rep. 317; 30 N. E. Rep. 663. 426 RULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. contributory negligence in stepping off the unprotected abutment of a bridge in a public street on a dark night. **"• § 448. In Cases of Collisions and Similar Accidents in Using the Highway. — Foot passengers, it is well said, have equal rights in the use of the highway with those who drive or ride ; and one is not guilty of negligence who fails to anticipate and take proper precautions against injury by persons riding or driving at an unusual or dangerous rate of speed. ^"^ The question of the negligence of the person for whose injury an action is brought, where the injury was received in a collision or other accident while driving, not due to an obstruction or defect in the highway, almost always presents a question for the jury ; though, where the act of the person injured was plainly reckless and foolhardy, and this recklessness plainly caused the injury, the court may so decide.*"^ Thus, it is a question for the jury whether one in- jured by being struck by a passing truck while he was unloading goods in a private alley, was guilty of contributory negligence in not looking out for approaching vehicles and taking precautions against being struck, on hearing the approach of the truck;*"* whether a per- son driving along the track of an electric railway was guilty of negli- gence in not using reasonable diligence and ordinary care to prevent a collision ;*"" whether one who, without having hold of the reins, at- tempted to get into a buggy drawn by a horse said to be unsafe by the livery stable keeper who let him, was guilty of negligence j*''^ whether '"Merriman v. Phillipsburg, 158 tory negligence: Nowell v. New Pa, St. 78; s. c. 33 W. N. C. (Pa.) York, 52 N. Y. Super. Ct. 382. To 214; 24 Pitts. L. J. (N. S.) 164; 28 the same effect, see Buesching v. Atl. Rep. 122. It is also a question St. Louis Gas Light Co., 73 Mo. 219. for a jury whether a pedestrian, Negligence and contributory negli- who tripped against an obstruction gence in cases of injuries received in the sidewalk and sustained inju- through a horse taking fright, while ries, was at the time of the accident being driven along the highway, at in the exercise or ordinary care: unusual objects: Paine v. Rochester, Evanston v. Fitzgerald, 37 111. App. 37 N. Y. St. Rep. 587; s. c. 14 N. Y. 86. Whether one injured in trying Supp. 180; 59 Hun 627; Tinker v. to drive across a street, over street- New York &c. R. Co., 71 Hun (N. Y.) railway tracks raised two feet above 431; s. c. 54 N. Y. St. Rep. 528; 24 the surface, was guilty of negli- N. Y. Supp. 977 ; Denver v. Peterson, gence. where the accident occurred 5 Colo. App. 41; s. c. 36 Pac. Rep. at night, and' there is evidence that 1111. he was unacquainted with the con- *"' Stringer v. Frost, 116 Ind. 477. dition of the street : Byrne v. Syra- "' As in Butterfield v. Forrester, cuse, 79 Hun (N. Y.) 555, 558; 3. c. 11 East 60. 61 N. Y. St. Rep. 530; 29 N. Y. Supp. *" Foley v. Riverside Storage &c. 912. "Where a city street broke offl Co., 85 Mich. 7; s. c. 48 N. W. Rep. in a wall twenty-five feet high, 154; citing Boick vifBissell, 80 Mich, which, in the night-time, was not 260; Lazell v. Kapp, 83 Mich. 36. guarded or lighted, it was held that "° Rascher v. East Detroit &c. R. the jury was justified in finding that Co., 90 Mich. 413; s. c. 51 N. W. Rep. one found injured at the bottom of 463. the wall was not guilty of contribu- *™ Monroe v. Lattin, 25 Kan. 351 427 1 Thomp. Neg.] contributory negligence. a person was guilty of contributory negligence who, riding on horse- back, turned to the left, leaving a travelled road to the right, in a dark night, on hearing the approach of another driving at a high rate of speed, notwithstanding that the statute provides that persons meet- ing on the highway shall each turn to the right.*"'' § 449. In the Case of Accepting Lease of a House Infected with Disease. — Where there is evidence that plaintiff, suing for damages from unhealthy premises leased to him, did not know that the disease which he took there had formerly been in the house, the question of his contributory negligence is for the jury.*"* § 450. In Cases of Railway Injuries. — Questions for the jury re- lating to the contributory negligence of the person injured are pre- sented in the following cases: — Whether the injured person was negli- gent in stepping, with others, from a train at a station ;*"' whether a teamster was negligent who, unloading lumber from a car, hearing an engine, attempted to get down from his team by stepping on a link projecting from the car, and the car was run into by another car and his foot crushed;*^" whether a railroad switchman was negligent in failing to see a slivered rail in which his foot was caught ;*^^ whether a watchman injured in consequence of the negligent and too rapid run- ning of a train on a track parallel and in close proximity to the track on which cars of the company employing him were standing, the numbers of which he was taking while standing on the other com- pany's track, in accordance with a custom recognized by both com- panies, with his attention fully occupied by his work, — could have avoided the consequences of such negligence by the exercise of ordi- nary diligence ;*^^ whether a man injured in the work of pulling posts by wrapping around each post a rope fastened to a car, was guilty of contributory negligence in wrapping it around more times than was necessary.*^^ "'Riepe v. Elting, 89 Iowa 82; 471; s. c. 18 N. E. Rep. 397; 1 L. R. s. c. 56 N. W. Rep. 285. It was for A. 429. the jury to say whether the driver *™ Brooks v. Boston &c. R. Co., 135 of a carriage whose fore wheel Mass. 21. struck the hind wheel of a buggy "° Watson v. Wahash &c. R. Co., and threw out the occupant was 66 Iowa 164. guilty of negligence: Reichman v. "'Lake Erie &c. R. Co. v. Mugg, Baire, 46 111. App. 346; and whether 132 Ind. 168; s. c. 31 N. E. Rep. 564. a person injured by cattle which "^ Watts v. Richmond &c. R. Co., were being driven rapidly along a 89 Ga. 277; s. c. 15 S. E. Rep. 365. public street was guilty of negli- "^ Union Pac. R. Co. v. O'Hern, 24 gence in waving his coat to frighten Neb. 775 ; s. c. 40 N. W. Rep. 293. them away: Eichel v. Senhenn, 2 It is also a question for the jury Ind. App. 84; s. c. 28 N. E. Rep. whether one injured by falling from 193. the unprotected end of an elevated- *>' Cutter V. Hamlen, 147 Mass. railway platform was guilty of neg- 428 RULES OF PROCEDUKE IN CONTRIBUTORY NEGLIGENCE. [2d. Ed. § 451. In Cases of Railway Fires. — It is a question for the jury whether a farmer, whose hay-stacks have been burned by fire emitted from a railway locomotive, was guilty of contributory negligence in stacking his hay near the railway track.*^'* § 452. In Cases of the Intoxication of the Person Injured. — Whether the intozication of the person killed or injured was such as to prevent him from exercising proper care for his safety will, in doubtful cases, be a question of fact for the jury.*^^ § 453. In Case of the Subsequent Negligence of Plaintiff in Treat- ment of the Injury. — Where a father in one count sues for damages for permanent injury to his minor son, and in another count seeks damages on account of the son's death, the lack of proper treatment after the injury is no defense to the claim for the injury itself, al- though it may mitigate the damages for the injury and death to- gether."^® The question whether the person who receives an injury from which he afterwards dies is guilty of negligence in at first re- jecting the advice of his physician and refusing to submit his leg to amputation, where there is no assurance that an operation would ligence in going along an unlighted passage in search of a urinal, which he supposed would be found: Jarvis V. Brooklyn &c. R. Co., 40 N. Y. St. Rep. 825; s. c. 16 N. Y. Supp. 96. Whether the driver of a cart, who was thrown out of it while turning out of a street railway track by being struck by a car, where his testimony tended to show that he was on the lookout for such car and endeavored to keep out of its way, and that of the driver of the car tended to prove that he was unable to avoid the collision by reason of the condition of the track and its being a down grade, — was guilty of contributory negligence: Quinn v. Atlantic Ave. R. Co. (City Ct. Brook- lyn), 34 N. Y. St. Rep. 801; 12 N. Y. Supp. 223. Whether a man sixty-one years old, who, after look- ing both ways and seeing a horse car fifty feet away coming toward him at a rapid rate, attempted to cross the street in front of it and was thrown by the horses and fatally injured, was guilty of con- tributory negligence: Wells v. Brooklyn City R. Co., 58 Hun (N. Y.) 389; s. c. 34 N. Y. St. Rep. 636; 12 N. Y. Supp. 67. Whether a pas- senger who, standing on the plat- form of a car, was injured by two portions of the train coming to- gether with a concussion on a bridge, after it had broken apart, was guilty of negligence (citing many other cases) : Goodrich v. Pennsylvania &c. R. Co., 29 Hun (N. Y.) 50. A finding that a freight brakeman injured by the engineer's gross negligence was not negligent in not knowing of the engineer's intemperate habits is justified by evidence that he had made only one trip, and was only slightly acquaint- ed with the engineer, and had been in the company's employ only about two months: Williams v. Missouri &c. R. Co., 109 Mo. 475; s. c. 18 S. W. Rep. 1098. "* Kansas City &c. R. Co. v. Owen, 25 Kan. 419; Kansas &c. R. Co. v. Brady, 17 Kan. 380. Consult this title in the next volume. "° Sutherland v. Standard &c. Ins. Co., 87 Iowa 505; s. c. 22 Ins. L. J. 353; 54 N. W. Rep. 453. ""Bradford v. Downs, 126 Pa. St. 622; s. c. 46 Phila. Leg. Int. 414; 24 W. N. C. (Pa.) 153; 17 Atl. Rep. 884. Compare ante, §§ 202, 251, 252. 429 1 Thomp. Neg.] contributory negligence. change the apprehended results, but merely that it would improve the chances, is properly submitted to the jury.*^^ § 454. A Collection of Cases where Negligence was Held to be a Question for the Jury. — In the following cases, and under various conditions of fact, the question of negligence was held to be for the jury: — Whether a guest at a hotel was negligent so as to prevent a re- covery for a watch and money lost by him, who left his window open about three feet above a public street, with a light burning and his clothing placed in view of the public street, while he was sleeping on the top of his bed;*^* where a boy twelve years old stood so near a passing train that he was drawn under it by a current of air ;*^° where a driver speeding his horse upon a race track, acted upon the assump- tion that the driver of a drag who entered upon the track at a point where they could see each other would keep her horse along the track, leaving a sufficient space for him to pass, instead of driving into an entrance of the paddock enclosed by the track j*^" where one, while at- tempting to use a staircase at night, without a light, with knowledge of the fact that the carpet thereon had holes in it, sustained an injury by catching his foot in such a hole;*^^ where one was hurt while riding over a corduroy road in bad condition, and in a wagon out of repair ;*^^ where one walked upon a sidewalJc and led his horse in the road at the side of the walk, although the horse occasionally succeeded in getting his ft)/3t on the walk;*^^ where a driver of a young horse, which was being driven singly for the first time, struck the horse when it shied and stopped when on an unguarded approach to a bridge, in consequence of which the horse jumped over the side of the bridge ;^^* where a street car company promised to repair its track at a specified place, but did not keep the promise, and the person to whom the promise was made received an injury while attempting to cross the track at such place ;*^^ where one driving in the tracks of a street railway attempted to cross another track in front of a car, approach- ing at a distance of 200 feet, where he was required to get off the "' Sullivan v. Tioga R. Co., 112 N. Div. 194; s. c. 49 N. Y. Supp. 128. Y. 643; s. c. 20 N. E. Rep. 569; 21 "^Kenney v. Rhinelander, 28 App. N. Y. St. Rep. 827; 8 Am. St. Rep. Div. 246; s. c. 50 N. Y. Supp. 1088. 793. *"Luedke v. Mukwa, 90 Wis. 57; "* Becker v. Warner, 90 Hun (N. s. c. 62 N. W. Rep. 931. Y.) 187; s. c. 35 N. Y. Supp. 739; 70 «' Grinnell v. Taylor, 85 Hun (N. N. Y. St. Rep. 535. Y.) 85; 66 N. Y. St. Rep. 68; 32 N. "»Graney v. St. Louis &c. R. Co., Y. Supp. 684. 140 Mo. 89; s. c. 38 L. R. A. 633; 41 «* Machesney v. Unity Twp., 164 S. W. Rep. 246; 8 Am. & Eng. R. Pa. St. 358; s. c. 30 Atl. Rep. 263. Cas. (N. S.) 187, aff'g on rehearing '=' Houston City Street R. Co. v. 38 S. W. Rep. 969. Richart, 87 Tex. 539; s. c. 29 S. W. ""Redmond v. Maitland, 23 App. Rep. 1040, rev'g 27 S. W. Rep. 918. 430 BTJLES OF PKOCBDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. track on which he was driving, and the street was so impeded with trucks that he could not turn out on the other side.*^® Article IV. Instructing the Jury as to Contributoey Negligence. Subdivision I. Principles which Govern the Giving and Refusing of Instructions on this Issue. Section 457. When necessary to instruct as to contributory negligence. 458. When not necessary to instruct jury as to contributory neg- ligence. 459. When error to give any in- structions on the law of con- tributory negligence. 460. Whether negligence and con- tributory negligence submit- ted as several issues. 461. What instructions as to contrib- utory negligence ought to be given. 462. What instructions as to con- tributory negligence not deemed erroneous. 463. Further instructions as to con- tributory negligence not deemed erroneous. 464. What instructions as to con- tributory negligence have been held erroneous. 465. What instructions and requests for instructions have been condemned. 466. Necessity of confining the in- structions to the issues made by the pleadings. 467. Instructions embodying hy- potheses of fact as to which there is no evidence, or which are opposed to all the evidence. Section 468. Instructions which invade the province of the jury. 469. Instructions which assume that controverted facts are estab- lished. 470. Instructions which single out particular facts and ignore other essential facts. 471. Instructing the jury where an inference of contributory neg- ligence arises out of the plaintiff's own case. 472. Giving inconsistent or contra- dictory instructions on the subject of contributory negli- gence. 473. As to the fullness and particu- larity of instructions on con- tributory negligence. 474. Refusing additional instruc- tions where the jury are al- ready fully instructed. 475. Qualifying or amending re- quests for instructions be- fore giving them. 476. Instructions more favorable to the defendant than he is en- titled to. 477. Instructions which use the ex- pression "at the time of the Injury." 478. Curing the admission of irrele- vant evidence by instruc- tions. § 457. When Necessary to Instruct as to Contributory Negli- gence. — Where an issue as to whether the person killed or injured was "■McConnell v. Atlantic Ave. R. Co., 11 Misc. (N. Y.) 177; s. c. 65 N. Y. St. Rep. 170; 32 N. Y. Supp. 114. 431 1 Thomp. Neg.J contributory negligence. guilty of contributory negligence is raised by the pleadings, and the party sustaining the affirmative of that issue has given evidence with reference to it, — then the defendant is entitled to have the issue sub- mitted to the jury in the instructions given by the court.*^^ One court goes so far as to hold that the court should, of its own motion, and without any request therefor, instruct the jury that if the plaintiff is guilty of contributory negligence he can not recover, stating the degree of care which the plaintiff was, in the situation shown by the evidence, required to exercise ;^^^ and several decisions of other courts are to the effect that an omission in a general charge to explain to the jury the law relating to contributory negligence, where that element is, under the pleadings to the evidence in the case, is such an omission as tends to mislead the jury, and is therefore an error which affords grounds for reversing the judgment.*^" These decisions seem to vio- late the well-settled rule of procedure that mere nondirection in a civil case is not error, but that the court can not be put in the wrong, unless counsel interested in having the jury instructed on a given feature of the case, calls the attention of the court to it, and requests the appropriate instruction.*^" In conformity with this principle, another court has held that a general charge as to negligence which omits to. notice the evidence as to contributory negligence is not erroneous, unless a charge in reference to contributory negligence is specifically asked for by the defendant.*^^ But under any theory as to the obligation of the court to instruct the jury with reference to the law of contributory negligence, and not requested so to do, it is always proper to give such an instruction when. Under the pleadings and the evidence, the element of contributory negligence is properly in the case.*'^ § 458. When Not Necessary to Instruct Jury as to Contributory Negligence. — It is scarcely necessary to say that, where there is no evidence tending to show contributory negligence, the court should not give an instruction on that subject, since it might mislead the jury, by giving them to understand that the court was of opinion that there was such evidence.*^ ^ In Missouri, the rule obtains, with con- *"Kirk V. Atlanta &c. R. Co., 97 Supp. 637, where requests for in- N. C. 82. structions were properly refused. *^McCracken v. Smathers, 119 N. "°2 Thomp. Trials, §§ 2338, 2341, C. 617; s. c. 26 S. B. Rep. 157. and cases cited. *^ Indianapolis &c. R. Co. v. Wil- *"' East Tennessee &c. R. Co. v. liseh, 8 111. App. 242; Chicago &c. R. Clark, 74 Ala. 443. Go. v. Housh, 12 111. App. 88; Gamble "^Bedell v. Berkey, 76 Mich. 435; V. Mullen, 74 Iowa 99; s. c. 36 N. W. s. c. 43 N. W. Rep. 308; Western &c. Rep. 909. See also Philadelphia &c. R. Co. v. Abbott, 74 Ga. 851; West- R. Co. V. State, 66 Md. 501, and ern &c. R. Co. v. Meigs, 74 Ga. 857. Smith V. Pennsylvania Coal Co., 45 "" Munro v. Pacific Coast &c. Co., N. Y. St. Rep. 371; s. c. 18 N. Y. 84 Cal. 515; s. c. 24 Pac. Rep. 303. 432 EULES OP PKOCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. siderable strictness, that the instructions given by the court in a jury trial must be confined to the issues made hy the pleadings, and can not be extended to those issues raised upon evidence not responsive to the pleadings, although admitted without objection. Contributory negli- gence being in that state an affirmative defense,*^^ this view requires that the courts shall not give instruction on the subject of contribu- tory negligence where this defense is not pleaded, although evidence tending to show such negligence may have been admitted without ob- jection.*' ° § 459. When Error to Give any Instructions on the Law of Con- tributory Negligence. — On the other hand, if there is no element of contributory negligence in the case, it is erroneous to instruct the jury on that subject, because such an instruction conveys to their mind an opinion from the bench that there is such evidence, and that they are at liberty to take it into consideration in making up their verdict.*'* For the same reason, it is improper for the judge to instruct the jury on contributory negligence where no such defense is raised either by the pleadings or by the evidence,- — a rule applicable only in those jurisdictions where the burden of proof as to contributory negligence is on the defendant.*'^ Thus, in an action against a railway company to recover damages for the loss of goods, delivered to it for transporta- tion, caused by a fire set by its engines, an instruction based on the theory of contributory negligence of the plaintiff was properly re- fused.*'* So also in an action for the death of the conductor of an electric car, which took place in consequence of his being caught be- tween his car and another car on the same track, which was headed in the opposite direction, while he was adjusting the trolley arm of his car, in consequence of defective electrical appliances on the other car, ^^■hereby it moved in the wrong direction when its motorneer attempted to start it, where there was no evidence that the deceased had any knowledge of such defective condition of the other car, it was held that an instruction on the law of contributory negligence was not required, there being no substantial evidence of such negligence.*'^ '"Ante, § 366. Ky. L. Rep. 1525; s. c. 49 S. W. Rep. •"'Hyatt v. Hannibal &c. R. Co., 19 764 (not to be rep.) ; Galveston &c. Mo. App. 287. R. Co. v. Tuckett (Tex. Civ. App.), *" Bain v. Athens Foundry &c. 25 S. W. Rep. 150; rehearing denied Works, 75 Ga. 718; Denham v. Trin- in 25 S. W. Rep. 670 (no ofC. rep.), ity County Lumber Co., 73 Tex. 78; ™Bvansville &c. R. Co. v. Keith, s. c. 11 S. W. Rep. 151; Goltz v. Gris- 8 Ind. App. 57; s. c. 35 S. E. Rep. wold, 113 Mo. 144; s. c. 20 S. W. Rep. 296. 1044. "'Denver Tramway Co. v. Crum- •" Union &c. R. Co. v. Tracy, 19 baugh, 23 Colo. 363; s. c. 48 Pac. Colo. 331; s. c. 35 Pac. Rep. 537 (not Rep. 503. The following remark- pleaded) ; Henderson v. White, 20 able statement may be extracted VOL. 1 THOMP. NEG. — 23 43o 1 Thomp. Neg.] contributory negligence. § 460. Whether Negligence and Contributory Negligence Submit- ted as Several Issues. — It is held that the issue of contributory negli- gence may either be submitted to the jury as an issue separate from the issue of negligence, or as a qualification of an instruction on the issue of negligence. Under the former method, the issue may be framed thus: "1. Was the plaintiff's injury caused by the defend- ant's negligence? 2. Was the plaintiff's negligence contributory thereto?"**" Under the other plan, the court may embrace the issue of contributory negligence in the issue of negligence, with instruc- tions to find for the defendant if they find that the person killed or in- jured was guilty of contributory negligence;**^ but if the court fails so to do, the defendant is entitled to have it submitted to the jury as a separate issue, — provided, of course, there is evidence speaking upon it.**^ It is to be kept in mind that the so-called "issues" here re- ferred to are nothing more than interrogatories submitted to the jury on questions arising on the pleadings and evidence.**^ § 461. What Instructions as to Contributory Negligence Ought to be Given. — The jury should be instructed as to the rule of law requir- ing plaintiff to exercise ordinary care to avoid the consequences of defendant's negligence, in all cases where any considerable time elapsed between the discovery of the negligence and its injurious effect.*** It is the duty of the judge, when requested to give a special charge as to the law of and what constitutes contributory negligence, to instruct the jury particularly as to what degree of negligence on the part of plaintiff will defeat his right of action, although he does not give the particular charge requested.**' In an action by an from a Kentucky case, marked not to *" See Cedar Falls Co. v. Wallace, be reported: Requested instructions 83 N. C. 225. on the question of contributory neg- "''Akridge v. Atlanta &c. R. Co., ligence are properly refused, where, 90 Ga. 232; s. c. 16 S. E. Rep. 81. according to the plaintiff's theory, *" Jung v. Stevens Point, 74 Wis. there was clearly no contributory 547, 552; s. c. 43 N. W. Rep. 513. negligence, and according to the de- The court did not, however, hold fendant's theory no negligence on that the failure of the judge to give its part: South Covington &c. St. R. an instruction on the subject of Co. V. Pelzer, 19 Ky. L. Rep. 88; s. c. contributory negligence in apt lan- 39 S. W. Rep. 496 (no off. rep.). The guage, in the place of a request sub- statement in the opinion that there mitted in erroneous language, will can be no contributory negligence reverse a judgment. Nothing is an the part of the plaintiff where better settled with reference to jury there has been no negligence on the trials than that a judgment will not part of the defendant, is a plain mis- be reversed for a failure to give an conception. instruction upon any relevant mat- "° Kirk V. Atlanta &c. R. Co., 97 ter, unless an instruction correct in N. C. 82. See Kirk v. Atlanta &c. form and substance was submitted R. Co., 94 N. C. 625. to the court. In such a case the *" Scott V. Wilmington &c. R. Co., failure is mere non-direction, which 96 N. C. 428. never reverses a judgment in a civil "^Kirk V. Atlanta &c. R. Co., 97 case: 2 Thomp. Trials, §§ 2338, 2341. N. C. 82. 434 RULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. employe against his employer to recover damages for a personal injury received by splinters flying from a steel hammer, where the evidence showed that the hammer was nnsuited to the work required of it, be- cause it was too small; that the plaintiff was foreman of a crew, and selected the hammer and before using it said it was too small, it was held that an instruction ought to have been given to the effect that if the plaintifE knew, or should have known that the hammer was nn- suited to the work for which it was used, he could not recover.*^^ § 462. What Instructions as to Contributory Negligence Not Beemed Erroneous. — We may not derive the greatest benefit from con- sidering numerous decisions where instructions on the subject of con- tributory negligence have barely passed muster, under the doctrine of harmless error, or under the protection of statutes of jeofails, or under a sort of tolerari potest. But we do derive benefit from a study of those cases where instructions have been challenged by competent counsel, and have met with distinct approval at the hands of courts of appeal. In a jurisdiction where the burden of proof is on the plaintifE to prove freedom from contributory negligence, an instruction that "it is not enough to prove facts from which either the conclusion of negligence or the absence of negligence may with equal fairness be drawn, but the burden is upon the plaintiff to satisfy you that there was no contribu- tory negligence on the part of the deceased," — has been held correct.**^ But it is believed that, in those jurisdictions where right-acting on the part of the person killed or injured is presumed, and where the burden of proof is on the defendant to allege and prove contributory negligence,*** the giving of such an instruction would be error. In a jurisdiction where the same rule prevails, a woman sought to recover damages received by being hooked off the bridge by the defendant's bull, driven along the highway. The judge charged the jury that, before the plaintiff could recover, she must show that she was not guilty of gross negligence or recklessness, — that her conduct was "not wanting in reasonable care and prudence in view of all the circumstances and surroundings of the injury." It was held that this instruction was "as favorable to the defendants as they could ask under the law."**" But this mstruction, taken as a whole, can not be commended. If the plaintiff discharged the burden of showing her- self free from contributory negligence by merely showing that she was not guilty of gross negligence — that is, that she had exercised slight "° H. S. Hopkins Bridge Co. v. "» Ante, § 366. Burnett, 85 Tex. 16; s. c. 19 S. W. ■"= Barnum v. Terpennlng, 75 Mich. Rep. 886. 557; s. c. 42 N. W. ilep. 967. *" Hart V. Hudson River Bridge Co., 84 N. Y. 56. 435 1 Thomp. Neg.] contributory negligence. care, then the rule in that jurisdiction is quite different from the general rule.^^" Following the doctrine of imputed negligence/'^^ it appeared that the plaintiff's testator was, by the invitation of the driver, a stranger, riding in a wagon upon a highway crossed by de- fendant's road. A wheel of the wagon went into a hole in the road between the rails of defendant's track, and he was jolted from the wagon and killed. In an action to recover damages, the court charged the jury, in substance, that "carelessness upon the part of the driver, assuming he was a competent driver and a sober man, and there was no reason which the deceased could discover why he should not ride with him, would not defeat a recovery unless the death was caused by his wrongful and willful act." The defendant's counsel requested the court to charge "that if the driver's negligence was the proximate cause of the jar, the plaintiff can not recover." The court refused to alter its charge. This was held no error.* *^ § 463. Further Instructions as to Contributory Negligence Not Deemed Erroneous. — An instruction is not objectionable which ad- vises the jury to determine from all the evidence, whether the plaintiff has exercised such care as a prudent and cautious man would exercise under like circumstances, and which advises them that, if he did not '" In a case where the injuries re- ceived by a- female plaintiff from the negligence of the defendant pro- duced a miscarriage the same day, and it appeared that she exposed herself to bad weather a few days afterwards which resulted in an ag- gravation of her condition, — It was held that a charge to the effect that plaintifE was bound to take ordinary care of herself; that whether she was guilty of negligence in going out so soon after her miscarriage would depend upon whether she felt she was not well enough, but went out recklessly and carelessly, or, whether she felt that she was fairly urged to go out in pursuit of her business, and felt that in so doing she was not guilty of any want of fair care and caution, was sub- stantially correct: Hope v. Troy &c. R. Co., 40 Hun 438. An instruction that "plaintiff, in using gas from defendant's high pressure line, only assumed the usual and ordinary risks of such use, and not those risks or dangers which be- came extraordinary through the neg- ligence of the defendant," has been held not erroneous as assuming the 436 fact that the dangers in that case became extraordinary through the defendant's negligence: Oil City Fuel Supply Co. v. Boundy, 122 Pa. St. 449; s. c. 15 Atl. Rep. 865; 22 W. N. C. 483. Where the evidence of contributory negligence was very weak, and the court instructed the jury that plaintiff could not recover if he did not use ordinary care, and if his failure to do so contributed directly to produce the injury, and that "ordinary care is that degree of care which persons of ordinary pru- dence would use under the same cir- cumstances," but it refused to in- struct them that "a slight want of ordinary care on plaintiff's part would defeat the action," — it was held that, as there was no reason for believing that the jury was mis- led by such refusal, it was not suffi- cient ground for reversal of a judg- ment for plaintiff: Cronin v. Dela- van, 50 Wis. 375, — which was a case of tolerari potest. *" Post, § 498, et seq. "- Masterson v. New York &c. R. Co., 84 N. Y. 247; s. c. 38 Am. Rep. 510. RULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. exercise such care and caution, he can not recover.*'^ Where other instructions have been given clearly and correctly defining the law as to contributory negligence, an instruction telling the jury that they may take into account the age, intelligence, experience with machin- ery, etc., of the plaintiff, has been held not to be tantamount to in- forming them that a want of intelligence and discretion excuses con- tributory negligence; and the instruction accordingly passed muster under the doctrine of tolerari potest.*^* In determining the pro- priety of instructions given to the jury, the rule is that the reviewing court will take all the instructions as a whole, and if it is plain that elements omitted from one instruction or from one class of instruc- tions have been fully supplied in another instruction or class of in- structions, so that on the whole the jury have been fully and correctly instructed, the judgment will not be reversed, because some particular instruction may not have been rounded out and qualified as fully as the law would have required if that instruction had stood alone. It was so held concerning an instruction which entirely ignored the question of contributory negligence, where the jury were told in other instructions that the plaintiff could not recover unless, at the time of the accident, she was herself exercising ordinary care to avoid the in- jury of which she complained.*'" Where the question was as to the contributory negligence of plaintiff in driving so close to the railway as to be injured from passing cars, it was held sufficient to tell the jury to look at all the circumstances in determining whether the per- son acted with due care, or was guilty of negligence, and that, in ap- proaching the railway, he was bound to use care proportionate to the danger.* °° § 464. What Instructions as to Contributory Negligence have been Held Erroneous. — An instruction to which the court added that "a plaintiff may, under certain circumstances, be entitled to recover dam- ages for an injury although he may, by his own negligence, have con- "' Chicago &c. R. Co. v. Hutchin- justify or excuse the act of the son, 120 111. 587; s. c. 9 West. Rep. plaintiff in attempting to alight 544 ; 11 N. E. Rep. 855. from the front platform," &c. : Mais- *" Chicago Anderson Pressed-Brick els v. Dry Dock &c. Street R. Co., Co. v. Reinneiger, 140 111. 334; s. c. 16 App. Div. 391; s. c. 45 N. Y. Supp. 29 N. E. Rep. 1106; aff'g 41 111. App. 4. Example of an instruction on 324. contributory negligence not erro- "° Stephenson v. Southern &c. R. neous as against the defendant in Co., 102 Cal. 143; s. c. 34 Pac. Rep. an action against a street railway 618; aff'd in 36 Pac. Rep. 407. company for an injury received "* Rio Grande &c. R. Co. v. Leak, through a collision with a wagon 163 U. S. 280; s. c. 41 L. ed. 160; crossing its track: Haney v. Pitts- 16 Sup. Ct. Rep. 1020. An instruc- burgh &c. Traction Co., 159 Pa. St. tion that the omission of the driver 395; s. c. 24 Pitts. L. J. (N. S.) 448; of a street car to stop the car on 28 Atl. Rep. 235. request of the plaintiff, "does not 437 1 Thomp. Neg.] contributory negligence. tributed to produce it," has been held erroneous as having a tendency to mislead the jury, — the reason being that it failed to explain the ex- ceptional circumstances under which the plaintiff might recover al- though guilty of contributory negligence, but left them "to grope in the dark without light or sign to indicate the road to the right con- clusion/'*^^ In a jurisdiction where the burden of proving contribu- tory negligence is on the defendant, an instruction which submits to the jury the question whether the plaintiff did or did not exercise due care, is error, in the absence of evidence tending to show that he did not.*°^ In jurisdictions where contributory negligence is an af- firmative defense, and there is a plea of contributory negligence and evidence to support the plea, it is, of course, error to instruct the jury that the plaintiff is presumed to have been in the exercise or ordinary care at the time of the injury.*^* An instruction that, "if anything else than the negligence of the defendant contributed to produce the injury complained of, the plaintiff can not recover," is erroneous;*'" because, as already seen, if the negligence of the plaintiff is one of the concurring causes, there can be no recovery.*'^ In a jurisdiction where the burden of proof upon the question of contributory negli- gence is upon the plaintiff, exceptions will be sustained to a charge which gives contradictory instructions in this regard.*"^ An exposi- tion of the degree of care required of a defendant who had entered into a contract of iailment,'^^^ transplanted, inadvertently, it would seem, into the question of contributory negligence in case of an injury through a defect in a highway,*'* has led to the condemnation of an instruction which told the jury that, "if the plaintiff did not exercise ordinary care and prudence in attempting to cross the bridge, and this contributed to the. injury, he could not recover; but that he had a right to presume the bridge safe for a proper load, and was not bound to examine it before attempting to cross it, unless he had been in- formed that it was unsafe, or had reason to distrust or suspect its safety;" — ^the court, at the same time, refusing an instruction, re- quested by the defendant, "that the plaintiff's conduct, in driving upon the bridge, under the circumstances, must have been that of a pru- dent and careful man, to entitle him to recover, and that if he had reasonable ground to apprehend that the bridge was unsafe for such a "'Richmond &c. R. Co. v. Pickle- 183; Rapp v. St. Joseph &c. R. Co., seimer, 85 Va. 798, 818; s. c. 10 S. E. 106 Mo. 423. Rep. 44; 13 Va. L. J. 646. «»ShefC v. Huntington, 16 W. Va. •" Brewer v. Edson, 47 Mich. 91. 307. «» Myers v. Kansas City, 108 Mo. '^ Ante, § 217. 480; s. c. 18 S. W. Rep. 914; Moberly "^Bovee v. Danville, 53 Vt. 183. v. Kansas City &c. R. Co., 98 Mo. «'Briggs v. Taylor, 28 Vt. 180. "' Folsom V. Underbill, 36 Vt. 580. 438 EULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. team and load, the driving upon the bridge with such a team and load was such an act of imprudence and want of care as to prevent him from recovering;" — the court saying: "Although legal error might not, under ordinary circumstances, be predicated upon the use of these terms in defining the requisite degree of care and prudence which it was the duty of the plaintiff to exercise, we think that the rule should have been expressed in terms more definite and less liable to be mis- understood, and that the court ought to have instructed the jury in the terms of the defendant's request on this point, and that the omission or refusal so to instruct the jury was error."*^' § 465. What Instructions and Bequests for Instructions have been Condemned. — An instruction to the effect that the plaintiff could not recover if he was guilty of negligence in performing a specific act, and if such act contributed to the injury, but that his negligence in that respect would not prevent a recovery if it did not contribute to the injury, — has been condemned as misleading where the accident could not have happened if he had not performed the act.*®® This ruling was probably correct with reference to the case in hand, but it can not be extended so as to be sound as a general proposition. For example, a man goes upon a railway track at a grade crossing, where the view of an approaching train is obstructed, and after listening for the statutory or customary signals, which those in charge of the train negligently failed to give, in consequence of this he is run over by the train and killed. If he had not "performed the act" of going upon the railway track, he would not have been killed, and yet it is plain that, in such a case, the railway company is liable to pay damages for his death. An engineer having jumped from his engine and been killed, the question being whether or not he was without fault, the necessity for jumping, his ability to jump, and the safety with which he could do so, were all for the consideration of the jury, and it was error to take the question from them by charging that "the fact that he jumped is proof that he thought jumping the safest course." The jury should have been left to answer the question without any indi- cations of opinion from the court.*®'' An instruction that, to render the plaintiff guilty of contributory negligence, "she must have gone into the danger voluntarily," was held erroneous. The court re- garded the instruction as tantamount to telling the jury that the plaintiff must have known of the apparent danger and assumed the "» Folsom V. Underbill, 36 Vt. 580, *' Central &c. R. Co, v. Roach, 64 592. Ga. 635. "'Texas &c. R. Co. v. McCoy, 90 Tex. 264; s. c. 38 S. W. Rep. 36, 439 1 Thomp. Neg.J contributory negligence. risk before she could be regarded as negligent ; whereas, the law does not require that the danger should be apparent, but a traveller is b^und to use due care and caution on discovering it.**' In another case, E., whose boat was fastened to a pier, while standing on another boat, saw a tug and barge approaching and ran upon his own boat to prevent a threatened collision. The collision tore off a splinter, which struck, and broke his leg. In an action by R. against the tug-owner, it was held that it was for the jury to determine whether E.'s act was pru- dent and proper; and that a request of the defendant to instruct the jury that the fact that R. "did receive the injury in question where he was, is proof that he was liable to receive it there," was properly re- fused.*** An instruction that "if plaintiff's intestate got herself, with- out negligence, into a position of danger, she is not to be held responsi- ble for contributory negligence for an honest though erroneous exercise of judgment in getting out," was held erroneous, as tending to mislead the jury.*^" In an action for damages caused by the plaintiff being run upon by a railway train of the defendant while driving his team at a highway crossing, the court, in telling the jury under what circum- stances the plaintiff would not be entitled to recover, used the follow- ing language: "Unless you find that, after plaintiff got upon the track, or so near thereto that he could not extricate himself from the danger, and while the train was in a position to be stopped so as to avoid the collision, the defendant's agents and servants discovered that the plaintiff was in that position, and failed to stop it." This instruc- tion was condemned, because it left the jury at liberty to require of the defendant a higher degree of care than the law puts upon railway companies under such circumstances, which was defined to be ordinary care, or "such care and caution as an ordinarily prudent person would exercise under similar circumstances."*'^ "^ Hunger v. Marshaltown, 56 that, as the boy was the trespasser, Iowa 216. if they did not, the verdict should he ^™ Rexter v. Starin, 73 N. Y. 601. for defendant: Thurman v. Louis- "° Nashville &c. R. Co. v. Smith, ville &c. R. Co., 17 Ky. L, Rep. 1343; 9 Lea (Tenn.) 470. 34 S. W. Rep. 893 (no off. rep.). A *" Austin &c. R. Co. v. McBlmur- court in Texas holds that a charge in ray (Tex.), 25 S. W. Rep. 324 (no substance that If the plaintiff was off. rep.). It has been held that an guilty of contributory negligence in instruction making freedom from jumping off a moving train in a reek- contributory negligence a condition less or negligent manner, he can not of recovery by a trespasser riding recover, is erroneous, as tending to upon the truss rods under a freight mislead the jury, where there is the car, for injuries received by being question under the evidence as to pushed off the train while in motion, whether the act of jumping off in is erroneous. The issue was itself did not constitute such negli- whether he was pushed off by a gence, and where the instruction is brakeman. The court held that if not supplemented by other instruc- the trainmen pushed the boy off or tions covering that question: Mis- caused him to fall off as charged, the souri &c. R. Co. v. Wylie, 33 S. "W. boy was entitled to a recovery, but Rep. 771 (no off. rep.). Where a 440 RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. § 466. Necessity of Confining^ the Instructions to the Issues Made by the Pleadings. — It is a general rule, in actions at law, that, in in- structions to the jury, the court will confine them to the issues made by the pleadings;*'^ while it is always error for the trial court to disre- gard this rule, — as, for example, where both parties voluntarily dis- regard the paper issues and make up a case by other evidence alone. But it is always proper for the judge to confine the case to the issues made by the pleadings, and consequently he can never be put in the wrong and his judgment reversed for so doing. For example, it is proper in an action for a personal injury, grounded on negligence, for the court in its charge to limit the issue of contributory negligence to the sole act of contributory negligence pleaded by the defendant, — the jurisdiction being one where the burden of alleging and proving contributory negligence is on the defendant.^^* Under the operation of this principle, the state of the pleadings may narrow the issues down to one or more simple questions. Of this a good illustration is found in a case where the action was by the cook of a party of bridge- builders employed by the defendant, and the answer rested the defense on the ground that the plaintiff was not in the service of the bridge- builders, but in the defendant's service, and was a fellow-servant of the persons through whose fault he was injured, and that he had not sustained any serious injury ; and admitted that the injury was occa- sioned by the culpable negligence of persons in defendant's employ. This precluded any issue as to the degree of care required from the de- fendant toward the plaintiff, and relieved the plaintiff of the burden of showing negligence on defendant's part. The jury found the plaintiff in the employ of the bridge-builders, and not a fellow-servant of the employes of the defendant. The defendant attempted to set up the defense of inevitable accident. The court held that there was no evidence to support such a defense, and that if there had been it could not be entertained because not pleaded, and even if it had been pleaded, the defendant would have been bound by the admission in its locomotive engineer was injured in injury, he could not recover: St. consequence of using his hand be- Louis &c. R. Co. v. Traweek (Tex.), tween the spokes of a driving wheel 19 S. W. Rep. 370 (no off. rep.), in oiling the packing boxes, instead An instruction that a person who of using an iron furnished for that was engaged in a dangerous employ- purpose, — error to refuse an instruc- ment was warned of the danger, tion that if the jury believe that the but was not bound by the warning, plaintiff was guilty of negligence in but could judge for himself, &c., using his hand and arm in doing the condemned as erroneous and mis- work, and this negligence contrib- leading: Krulder v. Woolverton, 9 uted to the injury, he could not re- Misc. 359; 60 N. Y. St. Rep. 614; 29 cover; and that if he did not use N. Y. Supp. 696. care commensurate with the dan- *" 2 Thomp. Trials, § 2309. ger of the employment, when by its *■' Dallas &c. R. Co. v. Harvey exercise he could have avoided the (Tex. Civ. App.), 27 S. W. Rep. 423. 441 1 Thomp. Neg.] contributory negligence. answer of the negligence of its servants.*'* So, where the action was prosecuted by a husband for a negligent injury to his wife, and the rule of the jurisdiction made contributory negligence an affirmative defense to be pleaded and proved, and the answer set up the contribu- tory negligence of the wife, but not that of her husband, a request for a-', instruction on the subject of the contributory negligence of the , plaintiff was properly refused.*"* ' § 467. Instructions Embodying Hypotheses of Fact as to which there is No Evidence, or which are Opposed to All the Evidence. — An instruction which embodies a hypothesis of fact in support of which there is no substantial evidence, or which is decisively disproved by the evidence, ought not to be given ; for such an instruction -tells the jury that they are at liberty to find such hypothesis to be true, and sends them into the realm of speculation and surmise.*'" For ex- ample, in an action against a telegraph company for failing properly to transmit a telegram announcing a funeral, where the evidence conclusively shows that it would have been impossible for the ad- dressee to reach the funeral after the receipt of the telegram, an in- struction that the plaintiff could not recover if, by the exercise of care and diligence, she could have prevented the injury and damage, though the defendant may have been guilty of negligence, was prop- erly refused.*" So, it was held not error to refuse to instruct the jury that if the plaintiff, injured at a railroad crossing, failed to look and listen for the ears, he could not recover, where the undisputed testimony showed that he did look and listen, and the jury were else- where instructed that if he was guilty of contributory negligence, he could not recover.*'^ § 468. Instructions which Invade the Province of the Jury.* — In order to deal with this subject, it must be borne in mind that there are three systems of jury trial: 1. The English system, prevailing in the courts of the United States, in the courts of the State of New «' Kansas &c. R. Co. v. Morton, 10 "' Baltimore &c. R. Co. v. Few, C. C. A. 92; s. c. 61 Fed. Rep. 814. 94 Va. 82; s. c. 26 S. E. Rep. 406; •"Missouri &c. R. Co. v. Jamison, "Wilson v. Dickel, 7 App. Div. (N. 12 Tex. Civ. App. 689; s. c. 34 S. W. Y.) 175; s. c. 74 N. Y. St. Rep. 657; Rep. 674. In an action for negli- 40 N. Y. Supp. 45; Texas &c. R. Co. gentlycausingthedeath of the plaint- v. Reed, 32 S. W. Rep. 118 (no off. iff's Intestate, an instruction requir- rep.). ing the plaintiff to prove the facts *" Western U. Teleg. Co. v. Bruner "as laid in the declaration," was (Tex.), 19 S. W. Rep. 149 (no off. held not bad, as failing to require rep.). proof of due care: West Chicago "'Leak v. Rio Grande &c. R. Co., Street R. Co. v. Scanlan, 168 111. 34; 9 Utah 246; s. c. 33 Pac. Rep. 1045. s. c. 48 N. E. Rep. 149, aff'g 68 111. a This section is cited in § 473. App. 626; s. c. 2 Chic. L. J. Wkly. 113. 442 KULE8 OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. York, and in those of some other States, in which the judge sums up the testimony, freely comments on the evidence, gives his opinion of the weight of the evidence on different features of the case, but at the same time cautions them that they are not bound by his opinion ex- cept on questions of law. 2. A system prevailing in some of the Western and Southern States, which prohibits the judge from sum- ming up the testimony, or from charging the jury on questions of fact, but which confines him to the giving of hypothetical instructions which go no farthe* than to apply the law to the states of facts fur- nished by the evidence. 3. A mixed system which partakes of some of the features of the two systems just named, which prohibits the judge from charging upon questions of fact, that is to say, from in- timating what his opinion is upon any feature of the evidence, but which permits him, in the language of some of our State constitu- tions, to "state the testimony and declare the law ;" the meaning being that he is at liberty to "sum up," as it is termed in England, that is, to review the evidence, and to state the law applicable to the different phases of it, at the same time refraining from intimating his opinion to the jury as to the weight of it with reference to any essential fact. The value to the practitioner of the decisions collected in this para- graph will depend upon the manner in which they can be applied to the system which obtains in the jurisdiction in which his action is brought or defended. The action of the judge in charging the jury on the subject of contributory negligence was held to invade their province and to constitute error, in the following cases : — Where, after instructing the jury with reference to contributory negligence, the judge remarked that he did not see how the acts alleged to constitute contributory negligence were unreasonable;*^' where the judge in- structed the jury that a certain state of facts, if proved, would con- stitute contributory negligence,**" or would not constitute contribu- tory negligence.**^ *"' Andrews V. Runyon, 65 Cal. 629. for such an instruction: Interna- **■ Denliam v. Trinity County Lum- tional &c. R. Co. v. Dyer, 76 Tex. ber Co.. 73 Tex. 78; s. c. 11 S. W. 156; s. c. 13 S. W. Rep. 377. Rep. 151; Omaha Street R. Co. v. "'Calhoun v. Gulf &c. R. Co., 84 Craig, 39 Neb. 601; s. c. 58 N. W. Tex. 226; s. c. 19 S. W. Rep. 341; Rep. 209; Parke County v. Sappen- Berg v. Milwaukee, 83 Wis. 599; s. field, 6 Ind. App. 577; s. c. 33 N. B. c. 53 N. W. Rep. 890. One court has Rep. 1012; Peoria v. Gerber, 168 111. gone to the senseless extreme of 318; s. c. 48 N. E. Rep. 152, aff'g holding that an instruction to the 68 111. App. 255 ; Atchison &c. R. Co. effect that if the plaintiff, by look- v. Ayers, 56 Kan. 176; s. c. 42 Pac. ing and listening, could have dis- Rep. 722; Mitchell v. Western U. covered an approaching train in Teleg. Co., 12 Tex. Civ. App. 262; time to get off the track and avoid s. c. 33 S. W. Rep. 1016; Washing- injury, he was guilty of contribu- ton Gaslight Co. v. Poore, 22 Wash, tory negligence in not doing so, is L. Rep. 249. Therefore it is, of erroneous, as taking the question course, proper to refuse a request of his negligence from the jury: 443 1 Thomp. Neg.J contributory negligence. § 469. Instructions which Assume that Controverted Facts are Established. — An instruction is erroneous which assumes that facts which stand controverted upon the evidence, or conclusions from facts which the jury, and not the court, are entitled to draw, — are estab- lished.**^ For example, in an action against a railroad company by a person who was struck by a train while intoxicated and walking on the track, an instruction that "if the plaintiff was guilty of some slight degree of negligence, not amounting to a want of ordinary care," and was injured in consequence of a want of ordinary care on the part of the agents of the defendant company, he could recover, — was held erroneous, as assuming the negligence of the plaintiff to be slight only; whereas, in fact, the evidence showed gross negligence on the part of the plaintiff,**' Collins V. Dillingham, 7 Tex. Civ. App. 93; s. c. 26 S. W. Rep. 87. The instruction was absolutely correct in point of law, and involved no en- croachment upon the province of the jury, unless juries ought to be allowed, upon motives of mere be- nevolence and sympathy, to put their hands into the pockets of one man and take out his money and give it to another man. It would be a re- proach to any civilized system of jurisprudence to lay down the neg- ative of the above instruction as law, or to allow juries, playing a game of battledore and shuttlecock, to return a verdict as though it were law. Another decision of the same court has gone to the ridiculous length of holding that in an action against a municipal corporation for an injury sustained by reason of a defective sidewalk, an instruction that, in determining whether or not the plaintiff was guilty of contribu- tory negligence, the jury should con- sider his familiarity with the side- walk, the time of day, and the con- dition of the weather, is properly refused as being argumentative and an instruction upon theweightof the evidence: Bonham v. Crider (Tex. Civ. App.), 27 S. W. Rep. (no off. rep.). The fact that a man remains passive while an active trespass is being committed on his property, — as where he refrains from keeping his windows and doors closed while a railroad company is shoveling dirt against the side of his house, — does not present a case which requires the judge to depart from the rule that, in instructing a jury, no par- ticular act or omission should be 444 declared to constitute contributory negligence in law: Port Worth &c. R. Co. V. Smith (Tex. Civ. App.), 25 S. W. Rep. 1032. An instruction that, when there are two ways of leaving a railroad train, one safe and the other less safe, and a pas- senger is injured by leaving in the latter way, he can not recover be- cause of his contributory negligence, is properly refused, the question of his negligence being for the jury: Brodie v. Caroline M. &c. Co., 46 S. C. 203; s. c. 24 S. E. Rep. 180. "2 For an instruction on contribu- tory negligence where a passenger was injured in attempting to board a grip car of a cable street railway train, by its sudden starting, because of assuming facts under this rule, — see Cohen v West Chicago Street R. Co., 60 Fed. Rep. 698. *»^ Houston &c. R. Co. v. Smith, 52 Tex. 178. A misapplication of the rule of the text appears to have been made by the Supreme Court of Missouri, in holding that an instruc- tion, in an action against a street railway company for the killing of a boy by running over him by a car, that the same degree of care and prudence in avoiding danger is not required from a person of tender years and imperfect discretion, as from a person of mature years and greater discretion, was erroneous as assuming that the boy was a person of imperfect discretion, and as omitting to charge that it must ap- pear that he was using the care and caution of one of his age and capa- city: Lynch v. Metropolitan Street R. Co., 112 Mo. 420; s. c. 20 S. W. Rep. 642. The boy was only ten RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. § 470. Instructions which Single Out Particular Facts and Ignore Other Essential Faets.^ — A frequent error in instructing juries lies in the habit of singling out particular facts of the ease and instructing the jury with reference to them, while ignoring other essential facts as to which the jury ought to be instructed ; or singling out particular features of the evidence and dwelling upon them with emphasis, and ignoring other features; thus leading the jury to attach undue im- portance to the facts thus singled out and dwelt upon. Thus, to tell the jury that certain facts, standing alone, do not constitute contribu- tory negligence, at the same time ignoring other essential facts which ought to be considered in determining the question, tends to mislead the jury, and is hence error.*** So, where the plaintiff was injured while riding in a railway car, by being struck by a projection from a side track, it was not error to refuse to instruct the jury that the in- jury would not have occurred but for the fact of plaintifE having his arm outside of the window, because the question of contributory negli- gence was one to be determined upon all the evidence, and not upon that single fact.**^ But care must be exercised in applying this rule so that it shall not lead to the reversal of meritorious judgments be- cause of overlooking, in giving instructions, non-essential facts. Thus, in an action for the death of a railway firem'an, the question of his contributory negligence in failing to keep a lookout is properly ig- nored by the court, where the evidence shows that his principal duty is to look after the engine and fire, and that his duty to keep a lookout is secondary, and there is no evidence tending to show that, at the time of the accident, he was not engaged in looking after the engine and fire, and that any information he had, or could have acquired by the greatest diligence, was not communicated to the engineer.**" years of age. The instruction did tory negligence: Hamilton v. Great not tell the jury to find that he was Falls Street R. Co., 17 Mont. 334 ; of "imperfect discretion," but mere- s. c. 42 Pac. Rep. 860; rehearing de- ly allowed them so to find; and this nied in 17 Mont. 351; s. c. 43 Pac. was a question for them. The omis- Rep. 713. sion of the qualification that it must a This section is cited in § 473. appear that the boy was exercising ^ Hudson v. Houser, 123 Ind. 309 ; the care and caution of one of his s. c. 24 N. E. Rep. 243. Circum- capacity was mere non-direction, stances under which an instruction and doubtless would have been sup- predicating contributory negligence plied by the trial judge if a proper on a collection of facts was held request had been submitted by the erroneous in failing to embrace defendant's counsel. But it was not some of the essential facts : Omaha errror for the judge to assume a fact &c. R. Co. v. Chollette, 41 Neb. 578; which is tacitly assumed by both s. c. 59 N. W. Rep. 921. parties at the trial, — as, for example, ■"= Gulf &c. R. Co. v. Danshank, that the plaintiflf suffered some pain 6 Tex. Civ. App. 385; s. c. 25 S. W. and injury as a result of a collision Rep. 295. between street cars, where the case ■"" Cincinnati &c. R. Co. v. Clark, was tried on the theory that she did 57 Fed. Rep. 125; s. c. 6 C. C. A. suffer, but that the defendant was 281. not liable by reason of her contribu- 445 1 Thomp, Neg.] contributory negligence. § 471. Instructing the Jury Where an Inference of Contributory Negligence Arises out of the Plaintiff's Own Case. — Where an infer- ence of contributory negligence arises out of the plaintiff's own case, and such inference is unavoidable or conclusive, then, according to all theories, he can not recover because he has proved himself out of court.*" An attenuated fallacy has created the same rule where a suspicion of negligence arises out of the evidence adduced by the plaintiff,**' but there is obviously no sense or justice in this. Where the plaintiff's own case embodies some evidence which merely tends toward the conclusion of contributory negligence, but which is not of that cogency to be conclusive, then it ought merely to raise a question for the consideration of the jury under appropriate instructions from the bench. Where the plaintiff's own case embodies evidence tend- ing to this conclusion, it is manifest error for the court to withdraw the question from the jury. Thus, an instruction to the effect that a passenger suing for injuries sustained while alighting from a car, be- cause of the alleged negligence of the defendant in failing to provide a safe means of descent, was not guilty of any want of ordi- nary care if she left the car with reasonable diligence, was held erroneous as withdrawing from the jury the question of her con- tributory negligence, where her own testimony tended to support the allegations in the answer that her injury was caused by her own want of care while attempting to alight.*** § 472. Giving Inconsistent or Contradictory Instructions on the Subject of Contributory Negligence. — Where the judge gives incon- sistent or contradictory instructions to the jury, he commits reversible error, for the reason that the jury can not know which instruction to follow, and are even as liable to follow the wrong one as the right one. It was so held of an instruction which told the jury that, although thei plaintiff was guilty of negligence, yet if such negligence did not con- tribute to or cause the injury, or if the defendant's servants were neg- ligent and the injury would not have happened without such negli- gence, notwithstanding the plaintiff's negligence, the jury should find for the plaintiff. This instruction was regarded as somewhat incon- sistent, yet did not have the effect of abolishing the doctrine of con- tributory negligence altogether.*"" Another court has held, in an *" Ante, §§ 369, 432. ■'"Dougherty v. Missouri R. Co., '^^Ante, § 369, note. 97 Mo. 647, 667; s. c. 11 S. W. Rep. *^McDermott v. Chicago &c. R. 251. The instruction was as follows: Co., 82 Wis. 246; s. c. 52 N. W. Rep. "The court instructs the jury that 85. Compare on this subject (if although they may believe from the you care to), Shutt v. Cumberland evidence that the plaintiff was &c. R. Co., 149 Pa. St. 266; s. c. 1 Pa. guilty of negligence on his part at Adv. R. 859; s. c. 24 Atl. Rep. 305. the time of the injury in question, 446 RULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. action to recover damages for the killing of a person by a railway train at a highway crossing, that an instruction to the effect that, even if the jury should find that the deceased did not exercise as much care in •approaching the crossing as an ordinarily prudent man would have done, yet it was the duty of the servants of the defendant to keep a lookout on approaching the crossing, and that if the defendant, by so doing, could have discovered the danger of the deceased in time to avoid the injury, and failed to do so, the jury should find for the plaintiff, "provided the plaintiff was not guilty of contributory negli- gence," — was ambiguous and contradictory.* °^ But it is evident that if any error was committed, it was against the plaintiff and not one of which the defendant could complain, because upon very sound theory of law, a railway company is bound to keep a lookout when its train approaches a highway grade crossing, and even if travellers have ex- posed themselves on the track through their own negligence, yet if the railway company, by the keeping of a reasonable lookout, could check its train in time to avoid the injury, it ought to pay damages for not doing so. § 473. As to the Fullness and Particularity of Instructions on Con- tributory Negligence. — In considering the question indicated by this caption, the practitioner must always keep in mind the different the- ories as to the power of the judge in dealing with questions of fact in jury trials.*'^ In those States where the power of the judge is cut down to the minimum — to the mere advising of the jury on questions of law applicable to the hypothesis of fact which the evidence tends to prove, — an instruction which fairly and correctly states the law of yet if the jury further believe from tribute to or cause the injury. If, the evidence that such negligence however, by reason of its construc- did not contribute to or cause the in- tion it may be somewhat involved, jury, or if they find from the evi- or obscure, the other instructions in dence that the defendant's servants the cause unquestionably remedy or agents were negligent in the man- that defect." On rehearing, how- agement of the car or in the use of ever (page 667), the court reversed unsuitable horses, and that if there the judgment and remanded the had been no such negligence on the cause on the ground that the in- part of the defendant, said injury struction was misleading and erro- would not have happened, notwith- neous, saying that it was "also ob- standing the negligence of plaintiff, noxious to the criticism of being then the jury will find for the plaint- somewhat inconsistent with itself, iff." Of this charge the court re- if not practically abolishing the marked: "It does not, as we read doctrine of contributory negligence and understand it, say, as counsel altogether; or, in other words, claims, that where the negligence of allows the plaintiff to recover, re- plaintiff as well as that of defend- gardless of his own negligence con- ant contributed to the injury al- tributing to his injury, leged the defendant is liable. Its '" St. Louis &c. R. Co. v. Spear- very terms, we think, limit the neg- man, 64 Ark. 332 ; s. c. 42 S. W. Rep. ligence of plaintiff which may co- 406. exist with liability on the part of "-Ante, § 468. defendant to such as does not con- 447 1 Tliomp. Neg.J contributory negligence. contributory negligence in its application to the facts in evidence, is not erroneous, because it does not set forth such facts and dwell upon them.*^^ As already seen,*"^ the judge should not make up a collec- tion of facts from the evidence and tell the jury that those facts do or do not constitute contributory negligence, for it is generally for them to draw the inference. ^"^ Accordingly, an instruction that it is the duty of a person attempting to cross a railway track to exercise the degree of care and prudence that an ordinarily careful and prudent person would exercise under the circumstances, is not erroneous in that it fails to state what a man of ordinary prudence would do al such a time and place.*'" Stated in a different way, the judge, hav- ing instructed the jury that if the plaintiff, by his own act, had in any way brought about or contributed to bring about the accident, he can not recover, is under no obligation to charge specifically about any such act, or whether or not under the circumstances it was negli- gent.*"' As already seen,*"* such a charge under the theory of many of the courts, would be erroneous as charging upon a question of fact, and invading the province of the jury ; but under any sound concep- tion of jury trial, the failure of such additional explanations would be mere non-direction for which a judgment ought not; to be reversed, unless more specific instructions were requested and refused. So much for this theory, where the power of the judge is cut down to the dealing with mere questions of law. On the other theory, where the judge possesses the larger power of summing up the evidence, and of dealing with questions of fact, he must explain to the jury what con- stitutes contributory negligence, by stating the collection of facts on which the law would authorize them to find that there had been such negligence, and instruct them that if they should find such facts to be true, the plaintiff can not recover in case the accident resulted wholly or in part from such contributory negligence.*"" In the same State, an instruction upon the subject of contributory negligence in an action for an injury received from being struck by a street car, was held in- adequate, where it merely stated that the defendant was entitled to a verdict, if the plaintiff was remiss in his duty, without calling atten- tion to the evidence tending to show negligence on his part in stand- ing between tracks after crossing the first track, and further in- structed the jury that one does his whole duty if, before attempting to "' Pennsylvania Co. v. Horton, 132 16 L. R. A. 189 ; s. c. 49 Am. & Eng. Ind. 189; s. c. 31 N. E. Rep. 45. See Rail. Gas. 408; 19 S. W. Rep. 31. also Gulf &c. R. Co. v. Shieder (Tex. ""Gulf &c. R. Co. v. Johnson, 83 Civ App.), 26 S. W. Rep. 509. Tex. 628; s. c. 19 S. W. Rep. 151. *« Ante, §§ 430, 470. '"^ Ante, § 468. 405 Peoria &c. R. Co. v. Clayberg, *'" New York &c. R. Co. v. Enches, 107 111 644 127 Pa. St. 316; s. c. 17 Atl. Rep. '=» Gratiot v. Missouri &c. R. Co., 991; 4 L. R. A. 432; 24 W. N. C. 261. 448 RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. cross a railway track, he stops, looks and listens, and the street is in such a condition as to induce him to believe that he can safely cross.'"" In short, under this theory of jury trial, the judge ought not to leave the question of contriubtory negligence with the jury, without any rule to guide them, and therefore a request for an instruction on that subject, which has this effect, is properly refused;'"^ though if given, it is conceived that it would be mere non-direction, and hence not re- versible error, unless a more specific instruction was requested by the defendant.^"^ § 474. Eefusing Additional Instructions where the Jury are Al- ready Fully Instructed. — A principle which we shall have occasion to consider in another relation is that it is not error for the judge to re- fuse an instruction on the subject of contributory negligence, or on any other subject, where the jury has been already fully instructed on that subject.'"^ § 475. Qualifying or Amending Requests for Instructions Before Giving them. — Under most systems of jury trial, unless a request for an instruction is correct as it is presented to the judge, he is not bound to give it, but may reject it in toto, and is not bound to make the attempt to amend it or qualify it. Yet he may do so, and this is perhaps the more usual course. To the amendments or qualifications thus added to requested instructions before giving them, exceptions are often taken, which lay the ground-work for more or less refine- ment. An instruction was requested to the effect that if the deceased was guilty of more than slight negligence, the verdict must be for the defendant, and the judge qualified it by adding "if the jury believed from the evidence that he was guilty of negligence." This was held to be no error.''"* On the other hand, it has been held error to qualify a requested instruction that a passenger on a street oar was guilty of contributory negligence if she attempted to alight while the car was in motion, by the contention that the attempt was ma.de at a place where it was not usual for cars to stop, where the plaintiff insisted that the car had stopped before she attempted to alight, and the contention of the defendant was that it was in full motion and had not slowed up, °°°Rauscher v. Philadelphia Trac- Traders' &c. Accl. Co. v. Wagley, 74 tion Co., 176 Pa. St. 349; s. c. 38 Fed. Rep. 457; s. c. 45 U. S. App. 39; W. N. C. 479; 35 Atl. Rep. 138. 20 C. C. A. 588. "'Harmon v. Washington &c. R. ™ Chicago &c. R. Co. v. Fietsam, Co., 18 D. C. 255 (7 Mackey) ; s. c. 123 111. 518; s. c. 12 West. Rep. 844; 17 Wash. L. Rep. 426. 15 N. E. Rep. 169. It is supposed that °"2 Thomp. Trials, §§ 2338, 2341. this request was made while the °™ Houston &c. R. Co. v. Brin, 77 doctrine of comparative negligence Tex. 174; s. c. 13 S. W. Rep. 886; was in force in Illinois. VOL. 1 THOMP. NEG.— 29 449 1 Thomp. Neg.J contributory negligence. because the qualification had the effect of eliminating any question as to an attempt to alight from a slowly moving car after a signal to stop.°°' § 476. Instructions More Favorable to the Defendant than he is Entitled to. — In considering the propriety of any instruction, the court will, of course, keep in view the consideration which party chal- lenges the correctness of the instruction, and if it is more favorable to that party than he is entitled to, he can not, of course, have the judg- ment reversed, because of the giving of it. Under this principle, in- structions on the subject of contributory negligence, challenged by the defendant, passed muster in the following instances: — In an action against a street railway company an instruction that it would have been contributory negligence for the plaintiff to step off the car, with bundles which so encumbered him that he could not exercise or con- trol his movements, as well as he could without the bundles,^"* — the obvious reason being that such an act would not be contributory negli- gence as matter of law;^"^ an instruction that "if the deceased had not changed his position as the engine approached him, he would not have been struck, then, as a matter of law, his administrator could not re- cover, no matter what care or diligence deceased was then using to avoid such change in his position," was modified by the court by add- ing a statement that such facts should only be considered in connec- tion with all the other evidence in the ease, in determining whether the deceased was guilty of contributpry negligence. '"^ ^°' Kelly V. Third Ave. R. Co., 25 to stop, was about to come to a App. Dlv. 603; s. c. 50 N. Y. Supp. standstill." "The issue was plain 426. The trial justice charged that and marked. Either the car had if the plaintiff attempted to alight actually come to a standstill and at a place where it was not usual to plaintiff was thrown off by its being stop, and while the car was in mo- suddenly started before she had an tion, she took the chances of any opportunity to alight, or else she, injury she might receive. The de- without notifying the conductor of fendant requested the court to her intention to alight, attempted charge that if the car was not at a to jump off while the car was ac- standstill when plaintiff attempted tively proceeding onward. The rul- to alight, the verdict should be for ing of the learned justice was, the defendant. The request was re- therefore, equivalent to a declina- fused. The court said: "The effect tion to charge that if the plaintiff of this was to limit the original in- attempted to alight while the car struotion to an attempt to get off was in motion, as testified to by the the car while it was in motion at a defendant's witnesses (that there place where it was not usual to was no signal to stop and the car alight. It was tantamount to tell- was proceeding onward when plaint- Ing the jury that if the plaintiff thus iff attempted to alight), the def end- attempted to alight at any other ant was entitled to a verdict." place the defendant would be respon- "" Richmond v. Second Ave. R. sible. We think this was erro- Co., 76 Hun (N. Y.) 233; s. c. 59 N. neous. It must be observed that Y. St. Rep. 113; 27 N. Y. Supp. 180. there was no question here of an ^ Ante, § 430. attempt to alight from a slowly mov- '™ East St. Louis Connecting R. ing street car, which, after a signal Co. v. Eggman, 170 111. 538; s. c. 48 450 EULES OP PEOCEDUKE IN CONTEIBUTOEY NEGLIGENCE. [2d Ed. § 477. Instructions which Use the Expression "At the Time of the Injury." — On principles already discussed, it is evident that the relative time of the act or omission, upon which contributory negli- gence is predicated, and the act or omission of the defendant upon which negligence is predicated, may become a very important matter to be considered. '"* One court has held that an instruction that the deceased was only required to use "reasonable and ordinary care in respect to his own safety at the time of receiving the injury" is errone- ous, since the jury might understand from it that no care was re- quired from him except at that precise moment.''^'' A higher court in the same State has held that in an action for the killing of one at a railway crossing, the words, "at the time of the injury" in an instruc- tion are not to be construed as restricting the exercise of due care on the part of the deceased to the exact moment of the injury, but as re- ferring to all that occurred from the time that he reached the tracks until he was killed.°^^ The same court ruled that an instruction that, in determining whether the deceased, "at the time of the accident," made use of all reasonable care to avoid the accident, etc., was not erroneous, on the ground that it used the words "at the time" of the accident, instead of the words, "before and at the time."""^^ § 478. Curing the Admission of Irrelevant Evidence by Instruc- tions. — This is a very reprehensible practice. An authoritative court has held that the judge is not bound to separate evidence which is relevant upon the question of contributory negligence from that which is not, and to instruct the jury as to what evidence is relevant and what is not; but that, if a party will allow irrelevant evidence to go in without seasonably calling the attention of the judge to it by an objec- tion, he can not put upon the judge this additional duty.'*^^ N. E. Rep. 981; 9 Am. & Eng. R. ant's negligence, they should render Cas. (N. S.) 438; aff'g 71 111. App. 32. a verdict against the defendant,— ^Ante, §§ 230, 240, 241. is not objectionable as confining the "° Peoria &c. R. Co. v. Herman, necessity for due care on the part of 39 111. App. 287. the deceased to the time of the acci- "" Lake Shore &c. R. Co. v. Ouska, dent : Calumet Electric Street R. 151 111. 232; s. c. 37 N. E. Rep. 897; Co. v. Van Pelt, 173 111. 70; s. c. 50 aff'g 51 111. App. 334. N. E. Rep. 678; aff'g 68 111. App. 582. "" Lake Shore &c. R. Co. V. Parker, ""Ryan v. Bristol, 63 Conn. 26; 131 111. 557; s. c. 23 N. E. Rep. 237; s. c. 27 Atl. Rep. 309. In this case 41 Am. & Eng. R. Cas. 339. That the defendant requested the court court has evidently been troubled to charge that due care on part of much with this important question, plaintiff was not to be inferred from for we find another one of its holdings negligence on part of defendant, or to the effect that, an instruction the faulty condition of the highway that if the jury believe that the due to defendant's negligence; but plaintiff's intestate, while in the ex- that the jury must have suflBcient ercise of ordinary care for her evidence besides the existence of safety, and without fault or negli- these two facts to show that plaint- gence, lost her life through defend- iff exercised due care. The refusal 451 1 Thomp. Neg.J contributory negligexce. Subdivision II. Instructions on Various Questions of Law and Fact. Section 481. Instructions as to the burden of proof. 482. Instructions as to presump- tions. 483. Instructions as to the "instinct of self-preservation." 484. Instructions defining "ordinary care," "reasonable care," de- grees of negligence, etc. 485. Instructions which embody the "any degree" doctrine. 486. Instructions embodying the doctrine of comparative neg- ligence. 487. Instructions which embody the doctrine of imputed negli- gence. 488. Instructions as to proximate and remote cause in connec- Section tion with contributory negll. gence. 489. Instructions as to the plaintiff avoiding the consequences of the defendant's negligence. 490. Instructions as to the defend- ant avoiding the consequence of the plaintiff's negligence. 491. Instructions as to voluntarily exposing one's self to danger. 492. Instructions as to casting one's self upon known dangers. 493. Instructions as to contributory negligence in the case of in- juries to children. 494. Instructions on the subject of intoxication of the plaintiff or person killed or injured. § 481. Instructions as to the Burden of Proof. — The writer is of opinion that instructions to the jury as to the burden of proof are very apt to mislead, and generally do more harm than good. The fact, however, remains, that such instructions are often demanded and are generally given. An exception to this statement no doubt exists, when the judge is dealing with the subject of contributory negli- of this request was assigned as error. The Appellate Court say: "This request may mean that, while there was relevant evidence upon both of said ultimate facts" (de- fendant's negligence and defective condition of highway), "some of which was also relevant upon the question of contributory negligence, the court should have pointed out to the jury which was which, and should then have told them that the inference as to contributory negli- gence could be drawn by them only from such evidence as was relevant upon that point. If this is its meaning, the court did in fact com- ply with the last part of it, and did not err in not complying with the first part. It told the jury that the facts and circumstances from which they might infer the existence of due care must be such as would fair- ly and reasonably warrant the infer- 452 ence; and this was only saying to the jury, in a way they could under- stand, that the evidence must be relevant. The first part, in effect, asked the court to separate the evi- dence relevant upon the question of contributory negligence from that which was not, and tell the jury which was so relevant and which was not. Such a thing was prac- tically impossible and it was not incumbent upon the court to attempt it. The charge as given upon the point in question embodies in sub- stance or in terms all that was legal in these requests: it was a correct statement of the law as adapted to the facts in this case: and it was fairly suflScient for the guidance of the jury. The duty of the court was thus fully performed:" City of Hartford v. Champion, 58 Conn. 276. RULES OP PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d. Ed. gence; for manifestly the jury ought to know whether the plaintifE is bound to exonerate himself in this respect, or whether contributory negligence is a specific defense to be proved by the defendant. In those jurisdictions where contributory negligence is an affirmative de- fense to be pleaded and proved by the defendant, and the defense has been so pleaded, and no unavoidable inference of such negligence arises out of the plaintiff's ease, — then, of course, an instruction tell- ing the jury that the burden of proof as to this issue is on the de- fendant, is proper.''^* In such a jurisdiction a request for an in- struction to the effect that the plaintiff must establish affirmatively that he was not guilty of negligence contributing to the injury which he received, is properly denied.^ ^° In such a jurisdiction an instruc- tion to the effect that it is negligence per se to attempt to board a moving train, unless permitted or directed to do so by the agents of the defendant, and that the burden is on the plaintiff to show such permission or direction, has been condemned on the ground that it places the burden on the plaintiff of showing that he was not guilty of contributory negligence, whereas the rule of the jurisdiction places it on the defendant.^^® § 482. Instructions as to Presumptions. — Artificial presumptions do not generally come into play where the evidence fully exhibits the conditions under which the accident took place. It was therefore held error to instruct the jury that the law presumes that an injured person exercised ordinary care where there was evidence tending to show his contributory negligence. ^^^ § 483. Instructions as to the "Instinct of Self -Preservation."^ — As already seen,°^* the natural instinct of self-preservation is, in ob- "" Central Texas &c. R. Co. v. 1128. An instruction to the effect Bush, 12 Tex. Civ. App. 291; s. c. 3 that, in order for the plaintiff to Am. & Eng. R. Cas. (N. S.) 264; recover for the injury caused hy 34 S. W. Rep. 133. falling from an unlighted railway ""^ Consolidated Traction Co. v. platform, it is incumhent upon her Behr, 59 N. J. L. 477; s. c. 37 Atl. to show that she took greater care Rep. 142. than she would have taken if the "» Fulks V. St. Louis &c. R. Co., platform had heen well lighted, has 111 Mo. 335; s. c. 19 S. W. Rep. 818. been held properly refused, upon the The same court has held that an in- ground that it imposed upon her struction that the burden of proving the burden of showing freedom from contributory negligence on the part contributory negligence — a far- of the deceased rests on the defend- fetched conclusion: Missouri &c. R. ant, and that, unless the defendant Co. v. Turley, 37 S. W. Rep. 52 (no has proved the same by a preponder- off. rep.). ance of evidence, it can not sue- "'Rapp v. St. Joseph &c. R. Co., ceed,— is not objectionable as leav- 106 Mo. 423; s. c. 17 S. W. Rep. 487; ing out of view evidence offered by Lee v. Knapp, 55 Mo. App. 390. the defendant showing contributory a This section is cited in § 401. negligence: Lane V. Missouri &c. Co., ^^^ Ante, § 401. Compare ante, § 132 Mo. 4; s. c. 33 S. W. Rep. 645, 396, et seq. 453 1 Tliomp. Neg.] contributory negligence. scure cases, allowed by some courts to have some evidentiary value upon the question of contributory negligence. It has been held that an instruction that the instincts of self-preservation are not proper to be considered in determining whether or not plaintiff was guilty of contributory negligence, is properly refused.^^' § 484. Instructions Defining "Ordinary Care," "Reasonable Care," Degrees of Negligence, etc. — It seems imperative, in dealing both with the subject of the negligence of the defendant and the contribu- tory negligence of the person killed or injured, for the judge care- fully to advise the jury as to the standard of care erected by the, law, which passes under the various expressions of "ordinary care," "rea- sonable care," or "reasonable or ordinary care." As already seen, ordinary care is something more than the words import : it is the care ordinarily exercised hy prudent persons.^'"' It seems necessary then for the judge to disabuse the minds of the jurors of the idea that the ordinary care intended by the law is the care which men ordinarily exercise in similar situations to the one in evidence before them. On this subject, as on many others, the trial judges are beset with childish refinements on the part of the appellate courts, and are vexed with frequent reversals having no better foundation than mere fanciful hypercriticism. For example, an instruction was condemned which told the jury that the plaintiff was bound to exercise "that measure of care and attention that persons of ordinary care, men generally, ordi- " narily prudent men," exercise nnder similar circumstances, and that if the plaintiff did "what any man of ordinary care and attention would have done," he might recover.^^^ A jury of fair-minded men would not see the justice of turning the plaintiff out of court and re- quiring him to forfeit any otherwise meritorious right of action where he exercised that care for his own safety which men ordinarily exer- cise. Analogies drawn from the law of bailments are misleading, be- cause the bailee contracts to use the diligence — not of ordinary men — but of a prudent man, well skilled in his particular employment. Another court has held that an instruction that ordinary care is such care as a person would ordinarily exercise under like circumstances, is erroneous in omitting the word "prudent" before the word "per- son."°^^ Another court has held that to define contributory negli- gence as "the want of such care, caution and prudence as persons similarly situated would use" is erroneous, because the degree of care "» Slaughter v. Metropolitan Street "^ Reynolds v. Burlington, 52 Vt. R. Co., 116 Mo. 269; s. c. 23 S. W. 300, 308. Rep 760 °^ Cohn v. Kansas City, 108 Mo. '''Ante, §§ 23, 24. 387; s. c. 18 S. W. Rep. 973. 454 KULES OP PROCEDURE IX CONTRIBUTORY NEGLIGENCE. [2d Ed. which the law requires is such care as ordinarily prudent persons would use under like circumstances."^' The feelings of another ap- pellate court were hurt by an. instruction directing the jury to fix the standard of care for reasonable, prudent and cautious men under the circumstances of the case, according' to their judgment and experi- ence of what such men do under the circumstances, and then test the conduct of the deceased by such standard. This instruction, .which was strictly sound and correct under the best theories, was condemned on the ground that the law fixes the standard for the conduct of rea- sonable, prudent and cautious men under such circumstances;^^* whereas the law does no such thing, but makes it a question of fact for the jury, and such it undoubtedly is. Another court has ap- proved an instruction to the effect that if the plaintifE exercised ordi- nary care, having reference to the surrounding circumstances, he did not contribute to his injury, but that if he failed to exercise such ordi- nary care or prudence, and was injured by the result, he could not recover."^" A disposition to refine and indulge in hypercriticism has condemned an instruction which told the jury that one who knows, or by the exercise of ordinary care and prudence can discover, that a side- walk is more dangerous than ordinary street sidewalks, is 'bound to use more than ordinary care and caution to avoid an accident, — on the ground that ordinary care and prudence are all that is required under any circumstances, although the acts which will -constitute such care and prudence vary with varying circumstances."^^ The trial judge meant what the jury would understand him as meaning, just what the hair-splitting appellate court deduced, though he failed to e.xpress it in the aptest language. Another court has condemned as erroneous an instruction to the effect that if the person killed had been "properly grasping the handle" of the hand car on which he was riding, he would not have fallen therefrom, — the reason being that the instruction failed properly to define the degree of care required of him, which would seem to be a refinement over a mere non-direc- tion."^' A similar disposition to refine would have prevented another court from deciding that a clause in an instruction reading, "if the plaintiff was free from negligence on his part," is equivalent to the expression, "if the plaintiff used ordinary care.""^' It is plain that =^ O'Connor v. Cook (Tex. Civ. Co., 41 S. C. 415; s. c. 19 S. E. Rep. App.), 26 S. W. Rep. 1113 (no off. 915. rep.). °^ Langhammer v. Manchester, 99 '=*St. Louis &c. R. Co. V. Spear- Iowa 295; s. c. 68 N. W. Rep. 688. man, 64 Ark. 332; s. c. 42 S. W. Rep. =" Jones v. Alabama Mineral R. 406 [distinguishing Grand Trunk R. Co., 107 Ala. 400; s. c. 18 South. Co. V. Ives, 144 U. S. 408; s. c 36 Rep. 30. L. ed. 485]. ="' Baltimore &c. Co. v. Wheeler, '"» Bouknight v. Charlotte &c. R. 63 111. App. 193. 455 1 Thomp. Neg.] contributory negligence. the two expressions are not equivalents ; that the second expression is a necessary explanation of the first — necessary to enable the jury to understand what negligence is in theory of law. It is quite plain that an instruction on the subject of contributory negligence which in- forms the jury that the law requires the plaintiff "to use ordinary care and diligence" is sufficient where these terms are substantially full and properly defined, and where the other instructions cover all the case."'" § 485. Instructions which Embody the "Any Degree" Doctrine. — Where the absurd and unjust doctrine, already referred to, prevails, that there can be no recovery where the negligence of the plaintiff, or that of the person killed or injured, in any degree contributed to the injury,"^" it has been held erroneous to instruct the jury that, if the plaintiff's negligence contributed essentially to the injury, he can not recover, but thai he must show a want of concurring negligence on his part contributing materially to the injury, — the reason being that any degree of negligence contributing to the injury will bar a recovery.^^^ For the same reason, an instruction to the effect that the plaintiff can not recover if he was guilty of any negligence which materially con- tributed to the injury, has been held erroneous, as qualifying the "any degree" doctrine.^^^ Another court, with better reason and a better sense of justice, has held that a request by the defendant for an in- struction to the effect that if the acts or omissions of the plaintiff contributed in any appreciable extent to his injury, he can not re- cover, is properly refused, because it does not correctly present the law of contributory negligence.^ ^^ § 486. Instructions Embodying the Doctrine of Comparative Neg- ligence. — The doctrine of comparative negligence has been abolished in Illinois."^* It has been held in that State in an action against a city, for an injury due to an alleged defective street corner, that an instruction to the effect that the plaintiff could not recover if she was guilty of any negligence, however slight, contributing to the injury, unless the city was guilty of negligence, which in comparison with that of the plaintiff was gross, was properly refused, as incorrectly stating ■'^ Omaha Street R. Co. v. Clair, 14; s. c. 48 Phila. Leg. Int. 475; 22 39 Neb. 454; s. c. 58 N. W. Rep. 98. Pitts. L. J. (N. S.) 154; 29 "W. N. C. ^'"Ante, § 170. 106; 22 Atl. Rep. 817. ""Oil City Fuel Supply Co. v. ="=Erie Teleg. &c. Co. v. Grimes, Boundy, 122 Pa. St. 449; s. c. 15 Atl. 82 Tex. 89; s. c. 17 S. "W. Rep. 831. Rep. 865. '^Ante, § 264. '""Mattimore v. Erie. 144 Pa. St. 45^ RULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d. Ed. the law, and as casting upon the plaintiff the burden of proving that she was in the exercise of the highest degree of care.^''' § 487. Instmctions which Embody the Doctrine of Imputed Negli- gence. — It has been held that an instruction that the plaintiff can not recover for an injury received at a railroad crossing, if the negligence of his hired man, who was driving the team, contributed to the acci- dent, should be given, where there is evidence that the plaintiff gave no directions to the manner of driving, and that the driver looked at his horses instead of looking for the approaching train, and en- deavored to stop them at first discovering the train close at hand and then urged them forward.^^^ This holding is correct; but it hardly refers itself to the doctrine of imputed negligence considered in the next chapter. If the relation of master and servant had not sub- sisted between the plaintiff and his driver, but if the plaintiff had been a mere guest or one riding by mere invitation, express or implied, of the driver, the negligence of the driver of the latter would not have precluded the plaintiff from recovering damages if the railroad com- pany was negligent. ^^^ § 488. Instructions as to Proximate and Remote Cause in Connec- tion with Contributory Negligence. — It is certainly necessary, in a proper state of the facts, for the judge to submit to the jury the ques- tion whether the contributory negligence of the plaintiff, or of the person killed or injured, was the proximate cause of the injury ;°^* and it is obviously proper, if not necessary, for a judge in so instruct- ing them, to explain the meaning of the words "proximate cause," "remote cause," etc., to avoid the danger of their being misled by the employment of technical legal phrases ; though the failure to give such explanations, in the absence of any request made therefor, may not be error, but may pass under the head of mere non-direction. It has been so held with reference to the word "contributed."''^' It has also been held that the use of the words "immediately" and "remotely," in explaining the law of contributory negligence to the jury, is not ■"" Beardstown v. Smith, 150 111. ™ (Per Hardin, P. J., Green, J., 169; s. c. 37 N. E. Rep. 211, afl'g 52 concurring. Ward, J., concurring in 111. App. 46. For another instrue- result.) Smith v. New York &c. R. tion, embodying the doctrine of com- Co., 4 App. Div. 493; s. c. 38 N. Y. parative negligence, which was con- Supp. 666; 39 N. Y. Supp. 1119. demnea because it omitted the es- '^ Post. § 502. sential element that the deceased "" Ante, § 161, et seq. must at the time of the accident, "^Wragge v. South Carolina &c. R. have been in the exercise of ordi- Co., 47 S. C. 105; s. c. 33 L. R. A. nary care, — see Cleveland &c. R. Co. 191; 4 Am. & Eng. Rail. Cas. (N. S.) V. Maxwell, 59 111. App. 673. 639; 25 S. B. Rep. 7S 457 1 Thomp. Neg.] contributory negligence. erroneous. "*" It is proper, in instructing the jury on this subject, of course in an appropriate condition of the evidence, to explain to them that the negligence of the plaintiff which the law disregards, and which consequently does not bar a recovery, is such negligence as did not contribute to or cause the injury/*^ In an action for personal injuries alleged to have been caused by the negligence of a servant of the defendant, an instruction to the effect that, if the plaintiff was guilty of that negligence without which the accident would not have occurred, she can not recover ; but if the servant of the defendant alone was negligent, and if his negligence occasioned the injury, the plaintiff may recover, — has been held not erroneous as charging that the plaintiff might recover unless her own negligence was the sole prox- imate cause of the injury.^*^ In an action against a railroad com- pany for negligence, it is error for the court to tell the jury that negligence remotely contributing to the injury is not material, when, in fact, the negligence, if there was any, was clearly direct and prox- imate, — such an instruction having a tendency to mislead.^*^ § 489. Instructions as to the Plaintiff Avoiding the Consequences of the Defendant's Negligence. — Where the negligence of the defend- ant creates the dangerous condition, the plaintiff can not recover if, notwithstanding that negligence, he could have avoided the injury of which it was the occasion, by the exercise of ordinary or reasonable care, — a rule which is illustrated in the familiar case of a traveller on a sidewalk, or crosswalk, negligently taking his chances of being able to pass a visible and obvious defect.^** As seen in the preceding article, whether the plaintiff or person killed or injured was guilty of negligence in attempting to pass the obstruction or defect, will gen- erally furnish a question of fact for the jury. The principle is often called into play in the relation of master and servant, where the mas- ter furnishes the servant with tools or appliances with which to work, which are dangerous, when by the exercise of ordinary care and skill "° Prather v. Richmond &c. R. Co., ant may liave been : Martin v. Texas 80 Ga. 427; s. c. 9 S. E. Rep. 530. &c. R. Co. (Tex. Civ. App.), 26 S. ''^ Dougherty v. Missouri &c. R. W. Rep. 1052. Proper to refuse to Co., 97 Mo. 647; s. c. 8 S. W. Rep. instruct the jury that, although the 900; 15 West. Rep. 235. plaintiff may have been negligent '^ Williams v. Edmunds, 75 Mich, and his negligence was the proxi- 92; s. c. 42 N. W. Rep. 534. mate cause of the injury, yet if the "' Atehison &c. R. Co. v. Plunkett, defendant could have avoided the 25 Kan. 188. State of the evidence, in accident with due care, the plaintiff an action for the burning of cotton might recover: Rattagliata v. Hub- by sparks from a railway locomo- bell, 7 Misc. (N. Y.) 103; s. c. 57 N. tive, in which it was not error to Y. St. Rep. 482; 27 N. Y. Supp. 409. tell the jury that the plaintiff could ^" Ante, §§ 227, 228; Butterfleld v. not recover if his negligence was Forrester, 11 East 60; s. c. 2 Thomp. the proximate cause of the injury, Neg., 1st ed., p. 1104. no matter how negligent the defend- 458 EULES OF PROCEDURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. they could have been made safe. In such eases if the servant knows of the defect or danger, or if, by the exercise of reasonable care for his own safety, he could discover it, and he nevertheless goes on and takes his chances, he will be debarred from a recovery in case he is hurt, by reason of his own contributory negligence. § 490. Instructions as to the Defendant Avoiding the Consequences of the Plaintiff's Negligence. — The applicatory rules of law under this head have been already considered.^*" It is there seen that there are two theories : — 1. That although the plaintiff or person killed or injured may have been guilty of negligence in placing himself or his property in a position of peril, yet where the defendant discovers the exposed position of the person or the property, or by the exercise of ordinary- care might have discovered it in time, by the exercise of the like care, to have averted injury to it, the contributory negligence does not exonerate the defendant, but he must pay damages. 2. The other prevailing doctrine is, that when shifting the responsibility for the catastrophe from the plaintiff to the defendant, the defendant must have discovered^ or must have had knowledge of the perilous situation of the plaintiff, or of his property, or of the person killed or injured, in time, by the exercise of reasonable care, to have averted the injury. An instruction on the former of these theories has been held to subvert the whole doctrine of contributory negligence."*' A later decision of the same court explains the theory of that court by saying in substance, that an instruction to the effect that when con- tributory negligence is not contemporaneous with the negligence of the defendant, but is only a remote cause of the injury, the plaintiff can recover if the defendant, by the exercise of ordinary care, might have avoided the injury, is erroneous where it does not embrace the hypothesis that the defendant's negligence was committed after the defendant became aware of the plaintiff's danger."*^ Another court has said that after the plaintiff has been shown to have been guilty of such contributory negligence as to preclude a recovery, the only ques- tion to be submitted to the jury is — assuming, of course, an appro- priate state of the evidence — ^whether the defendant properly exerted himself after discovering the plaintiff's peril."*^ In the absence of an appropriate state of the evidence, it is error to give even this in- struction."'" Going to the other extreme, it has been held that a re- '"Ante, § 226, et seq. Chicago &c. R. Co., 64 Minn. 159; "" Indiana Stone Co. v. Stewart, s. c. 66 N. W. Rep. 265. 7 Ind. App. 563; s. c. 34 N. E. Rep. "= Mobile &c. R. Co. v. Watly, 69 1019. Miss. 145; s. c. 12 Soutli. Rep. 558. "' Summit Coal Co. v. Shaw, 16 "" Fonda v. St. Paul City R. Co., 71 Ind. App. 9; s. c. 44 N. E. Rep. 676. Minn. 438; s. c. 74 N. W. Rep. 166. To the same effect, see Thompson v. 459 1 Thomp. Neg.] contributory negligence. quest for an instruction on the question of contributory negligence which ignores so much of the evidence as tends to show that the de- fendant could have prevented the accident by the exercise of reason- able care, after discovering the plaintiff's perilous position, is properly refused."" § 491. Instructions as to Voluntarily Exposing One's Self to Dan- ger. — This- question has already been considered in several rela- tions.°°^ In an action against a city street railway company for an injury to a passenger, it has been held that an instruction to the effect that the plaintifE could not recover if he voluntarily and unnec- essarily placed himself on the step outside the car before it came to a stop, and while it was going at the rate of six miles an hour, whereby his injury was made possible, — was a correct instruction.^^^ § 492. Instructions as to Casting One's Self upon Known Dan- gers. — An instruction to the eifeet that if the plaintiff, in the day- time, and with an unobstructed view of a pile- of iron in the street, negligently drove against it, and thereby caused a piece of iron to fall and injure her, the. jury should find for the defendants, is correct.^^^ In the leading ease on this subject, Bayley, J., directed the jury, that if a person riding with reasonable and ordinary care could have seen and avoided the obstruction, and if they were satisfied that the plaint- iff was riding along the street extremely ha,rd, and without ordinajy care, they should find a verdict for the defendant. This instruction was held eorrect.°°* § 493. Instructions as to Contributory Negligence in the Case of Injuries to Children. — In actions for injuring or killing minor chil- dren, the usual questions under the head of contributory negligence where the negligence of the child, and the negligence of the parent, guardian or custodian, in those jurisdiptions where such negligence is imputed to the child, the whole subject has been dealt with at length in a. former chapter.°^° In an action for the death of a boy nine years of age, an instruction that in determining whether or not the de- ceased was guilty of negligence, the jury should take into considera- tion his age and discretion, and that the same degree of caution and care should not be required of him as in the case of an adult, under ™ Sheehan v. Citizens' R. Co., 72 ^"^ Youngstown Bridge Co. v. Mo. App. 524. Barnes, 98 Tenn. 401; s. c. 39 S. W. ^^Ante, § 185, et seq. Rep. 714. "^ Tanner v. Buffalo R. Co., 72 "^ Butterfield v. Forrester, 11 East Hun (N. Y.) 465; 54 N. Y. St. Rep. 60; s. c. 2 Thomp. Neg., 1st ed., 1104. 776; 25 N. Y. Supp. 242. ^ Ante, § 289, et seq. 460 EULE8 OF PKOCEDUEE IN CONTRIBUTORY NEGLIGENCE. [2(1 Ed. similar circumstances, is proper. ^'^ But one court has held that it is error to give an instruction to this effect without further requiring the jury to find whether the child used such faculties and capacity as was possessed by it.°°' Turning the proposition around, it has been well held that instructions precluding recovery for the killing of a child under fourteen years of age, if he failed to exercise ordinary care and prudence, but which did not take into consideration his tender age, are properly refused ;°°* since the jury might understand this to mean the care and prudence of an adult. So an instruction in an action for an injury to a minor employe from a defective machine, that he was bound to see and observe patent defects and assume all risks from that source, and was guilty of contributory negligence in continuing to work when he should have known of such defects, — was properly refused as applying to the minor the standard of care which the law expects in case of adults.''^' On the other hand, an instruction to the effect that the jury might consider the plaintiff's minority in determining whether he had intelligence enough to appreciate the dangers of his employment, and that they might also consider his age in determining whether or not he was guilty of contributory negligence, was held un- objectionable. °'"' Where the action was by the parents against a street railway company for killing their child, it was held proper to instruct the jury that, in determining whether the plaintiffs contributed by their negligence to the accident, the jury might consider whether the parents exercised the degree of care, caution and watchfulness over the child in keeping it off the street, and out of danger, which was reasonable and proper for parents in their circumstances in life.^*^ In the same case, it was held proper to refuse an. instruction to the effect that, if the mother of the child was guilty of negligence in per- mitting it to escape from her presence, and go upon the railroad track, the plaintiffs could not recover, although the defendant's gripman saw, or by the exercise of ordinary care might have seen, the child in time to avert the injury:'"^ the plain reason being that the instruc- tion stated an erroneous proposition of law, the proposition that would '" Chicago &c. R. Co. v. Grablin, theory that the minority of the 38 Neb. 90; s. c. 56 N. W. Rep. 796; plaintife made the servant, under s. c. 57 N. W. Rep. 522; ante, §§ 308, whose direction he worked, a vice- 309. principal: Newbury v. Getchell &c. ""Mitchell V. Tacoma &c. R. Co., Lumber Co., 100 Iowa 441; s. c. 69 9 Wash. 120; s. c. 37 Pac. Rep. 341. N. W. Rep. 743. ™ Texas &c. R. Co. v. Hall, 83 «" Levin v. Metropolitan Street R, Tex. 675; s. c. 19 S. W. Rep. 121. Co., 140 Mo. 624; s. c. 41 S. W. Rep. ""Blumenthal v. Craig, 81 Fed. 968. Compare ante, § 329. Rep. 320; s. c. 55 U. S. App. 8; 26 »«= Levin v. Metropolitan Street R. C. C. A. 427.. Co., 140 Mo. 624; s. c. 41 S. W. Rep, "° It was not tantamount to hold- 968. Ing the defendant liable on the 461 1 Thomp. Neg.J contributoky negligence. excuse a street railway company in running down any child which chanced to be on its tracks through the negligence of its parents, although its track was a part of the common highway where children have a right to play."**^ § 494. Instmctions on the Subject of Intoxication of the Plaintiff or Person Killed or Injured. — Unquestionably, if the plaintiff or per- son killed or injured was, at the time of the accident, in such a state of voluntary intoxication as to be unable to exercise for his own safety the ordinary or reasonable care of a prudent and sober person under the circumstances, that is a very material fact, and one which, under many circumstances, becomes relevant upon the question whether he did exercise such care. In an appropriate state of the evidence, the defendant is entitled to have the jury instructed that, if the plaintiff was intoxicated, and if his intoxication placed him in such a condition that he was unable to, and in fact failed, to exercise the care and cau- tion required of him under the other instructions — such other instruc- tions being of course correct — ^he can not recover.^'* So, an irfstrue- tion in an action for the killing of a person upon a railroad track, that his intoxication, if found, might be considered on the question of contributory negligence, and that his drunkenness would not affect the question of the care to be exercised towards him unless in some way brought home to the knowledge of the agents of the company, — the engineer, the conductor, or the fireman, — has been held not mis- leading or erroneous.^'^ Where the evidence tended to show that the "' See ante, § 238. One court has App. 121. Another court has gone been so tender of the prerogatives so far the other way as to hold, in of jurors as to hold that an instruc- substance, that the jury should be tion to the effect that the care and Instructed in every suit by a minor prudence required of a minor four- for personal injuries, grounded on teen years of age, suing for personal the negligence of his employer, to injuries, would not be the same as find in favor of the plaintiff, unless that required of an adult, invades his age, intelligence, and experience the province of the jury: San An- were such as to induce a man of tonio &c. R. Co. v. Jazo (Tex. Civ. ordinary care and prudence to be- App.), 25 S. W. Rep. 712. Another lieve him qualified and fitted for court, equally straining and refin- the labor at which he was employed : ing, has held that an instruction in De Lozier v. Kentucky Lumber Co., case of a boy sixteen years of age, 13 Ky. L. Rep. 818; s. c. 18 S. W. that the law does not require that Rep. 451 (not to be rep.), a person of that age "shall exercise ^ Missouri &c. R. Co. v. McGlam- the same degree of care and caution ory, 89 Tex. 635 ; s. c. 35 S. W. Rep. as a person of maturer years," tends 1058; rev'g 34 S. W. Rep. 359. to mislead the jury, although the "^ It was held not misleading on jury are also told that he is to ex- the ground that the jury might un- ercise only such care and caution as derstand it as including any agent a person of his age, intelligence, of the company: Hankinson v. and discretion would naturally and Charlotte &c. R. Co., 41 S. C. 1; s. c. ordinarily use under like circum- 19 S. E. Rep. 206. stances : Scott v. McMenamin, 51 111. 462 KULES OP PIlCti:DURE IN CONTRIBUTORY NEGLIGENCE. [2d Ed. deceased was partly intoxicated at the time of the accident, an in- struction that ''ordinary care is that care which might reasonably be expected of one in the situation of deceased at the time of the acci- dent," was, of course, held to be erroneous, — ^the reason' being that under such a theory intoxication would excuse contributory negli- gence, and would visit the consequences of the folly of the deceased in becoming intoxicated upon the defendant.^^' The habit of a persoA of becoming intoxicated might be relevant evidence upon the question whether he was or was not intoxicated at the time of the accident ; but where there was no evidence tending to show that a person killed while intoxicated had ever been seen intoxicated prior to that day, an instruction as to the liability of the defendant in case the jury should find that the deceased was in the habit of becoming intoxicated, was held erroneous ;°°' but if he was in fact intoxicated when he wa^ killed, the error would seem to have been without prejudice to the plaintiff.=»8 ™Buesching v. St. Louis Gas Light Co., 6 Mo. App. 85. °" Larzelere v. Kircligessner, 73 Mich. 276; s. c. 41 N. W. Rep. 488. ""^ An instruction that intoxication is no defense to an action for death founded on negligence, unless the deceased was so intoxicated as to be unable to exercise ordinary care, has been held erroneous, and not cured by a subsequent instruction to the effect that if the intoxication resulted in a want of reasonable care which directly contributed to the death of the deceased, it would pre- clude a recovery: Buddenberg v. Charles P. Chouteau Transp. Co., 108 Mo. 394; s. c. 18 S. W. Rep. 970. But the instruction seems to be ab- solutely correct without the qualifi- cation, and entirely beyond cavil with the qualification. Circum- stances under which the submission to the jury of the question of the in- toxication of ^eplaintifC was deemed erroneous further than as affecting the solution of the conflicting evi- dence:' Britton v. Grand Rapids Street R. Co., 90 Mich. 159; s. c. 51 N. W. Rep. 276. Circumstances un- der which an instruction tiiat the intoxication of the paintiff was of no consequence "unless it made him more careless," was not objection- able: Morris v. Eigith Ave. R. Co., 68 Hun (N. Y.) 39; s. c. 52 N. Y. St. Rep. 61; 22 N. Y. Supp. 666. Circumstances under which it was not error to refuse an instruction to the effect that the plaintiff could not recover if the death of her hus- band was due to his own negligence or willful act in handling a danger- ous team, since such negligence may have been due to his intoxication, — the action being against a liquor seller for damages under a dram- shop act: Smith v. People, 141 111. 447; s. c. 31 N. E. Rep. 425; aff'g 38 111. App. 638. 463 1 Thomp. Neg.] contributory negligence. CHAPTER XIV. IMPUTED NEGLIGENCE. Sectiost 497. Scope of this chapter. 498. When contributory negligence of one person imputable to another. 499. General rule as to imputed neg- ligence. 500. Negligence of carrier not im- puted to passenger. 501. Negligence of carrier, when im- puted to passenger. 502. Negligence of driver not im- puted to passenger on pri- vate conveyance riding by in- vitation. 503. But passenger not absolved from ordinary care for his own safety. 504. Negligence of husband not im- puted to wife. 505. Negligence of one co-employe not imputable to another in favor of stranger. Section 506. Negligence of one joint under- taker imputable to the other. 507. Negligence of one employ^ im- putable to a co-employ6 in favor of a stranger. 508. Negligence of one policeman not imputable to another. 509. Negligence of driver of hose cart not imputable to fireman riding on it. 510. When negligence of wife bars action by husband. 511. When tow not chargeable with negligence of tug. 512. Negligence of bailee not imput- able to bailor. 513. Hirer of carriage allowing friend to drive. 514. Negligence of tenant not im- putable to landlord. § 497. Scope of this Chapter.^^ — This chapter does not include the subject of imputed negligence in its application to injuries received by children, that phase having been considered in a former chapter.^ § 498. When Contributory Negligence of One Person Imputable to Another.'' — In every action grounded upon an injury to any person, the contributory negligence of the person injured is imputable to the plaintiff so as to prevent a recovery. Familiar illustrations of this exist in the case where a widow, or an administrator, is suing to re- cover damages for the death of a person, under a statute;^ where a father is suing to recover damages for an injury to his minor child, or to his wife, per quod servitium amisitj or where a master is suing to a This section is cited in §§ 937, bThis section is cited in §§ 294, 1330. 462. ^ Ante, « 289, et seq. ' Ante, § 209. 464 IMPUTEB NEGLIGENCE. [2d Ed. recover damages to property injured while in the hands of his serv- ant.' In other language, whenever the plaintiff derives his cause of action from an injury to a third person, the contributory negligence of such third person is imputable to him, so as to charge him with the consequences, just as though such third person were suing for his own injury.* § 499. General Eule as to Imputed Negligence.^ — Contrary to earlier conceptions,' and subject to the qualification that a few courts prefer to remain unenlightened upon this question," the general doc- trine of the courts, both in England and America, is that where A. is charged with the care or custody of the person or property of B., and while this bailment continues, B. is injured in his person or property by the negligence of C, and B. brings an action for the damages against C, it will be no defense on the part of C. that the injury would not have happened but for the negligence of A. In such a case it does not lie in the mouth of C, who has injured B., to set up, as a defense to the action of B., that A. had also been guilty of a vio- lation of his duty toward B. ; but the case is rather one where an inno- cent person is injured by the concurring negligence or misconduct of two other persons, in which case, as already seen,^ he has a right of action against either or both tort-feasors'^ The rule above stated pre- 'La Riviere v. Pemberton, 46 Tex. 643; Johnson v. Gulf &c. R. Minn. 5; s. c. 48 N. W. Rep. 406. Co., 2 Tex. Civ. App. 139; s. c. 21 * Pratt Coal &c. Co. v. Brawley, 83 S. W. Rep. 274. This doctrine was Ala. 371; s. c. 3 Am. St. Rep. 571; so applied as to result in the hold- 3 South. Rep. 555. ing that the negligence of a father a This section is cited in § 503. in driving, resulting in the death at ° The leading case is Thorogood a railroad crossing of a son riding V. Bryan, 8 C. B. 115, overruled and with him, who is so nearly blind as generally discredited, both in Eng- to be unable to care for himself, land and America, but still igno- and who of his own volition has rantly or perversely followed by confided himself to his father's some American courts. The doc- care, — is imputable to the son: trine of this case has been recog- Johnson v. Gulf &c. R. Co., supra. nized in a few cases only: Cattlin ''Ante, § 75. V. Hills, 8 C. B. 123; Bridge v. 'a Robinson v. New York &c. Grand Junction R. Co., 3 Mees. & R. Co., 66 N. Y. 11; Dyer v. W. 247; Armstrong v. Lancashire Erie R. Co., 71 N. Y. 228; Master- &c. R. Co., L. R. 10 Exch. 47; Car- son v. New York &c. R. Co., 84 N. lisle V. Sheldon, 38 Vt. 440; Houfe Y. 247; Bennett v. New Jersey R. V. Fulton, 29 Wis. 296; Prideaux v. &c. Co., 36 N. J. L. 225; New York Mineral Point, 43 Wis. 513; Otis v. &c. R. Co. v. Steinbrenner, 47 N. J. Janesville, 47 Wis. 422; Payne v. L. 161; State v. Boston &c. R. Co., Chicago &c. R. Co., 39 Iowa 523; 80 Me. 430; s. c. 38 Alb. L. J. 269; Lockhart v. Llchtenthaler, 46 Pa. Covington Trans. Co. v. Kelly, 36 St. 151; Philadelphia &c. R. Co. v. Ohio St. 86; Wabash &c. R. Co. v. Boyer, 97 Pa. St. 91. Shacklet, 105 111. 364; Danville Tp. "In Texas the rule is said to be Co. v. Stewart, 2 Mete. (Ky.) 119; that if two persons are engaged in Louisville R. Co. v. Case, 9 Bush a joint undertaking, each is respon- (Ky.) 728; Tompkins v. Clay Street sible for the negligence of the other: R. Co., 66 Cal. 163; Noyes v. Bosca- Galveston &c. R. Co. v. Kutac, 72 wen, 64 N. H. 361; Follman v. Man- VOL. 1 TIIOMP. NEG. — Sf^ 465 1 Thomp. Neg.j contributory negligence. supposes that B. had committed the safety of his person or property to A. in such a sense, or to such an extent, that B. had not a right of control over the conduct of A., such as might enable him to have averted the injury. It also supposes that the personal negligence of B. did not contribute to bring about the injury. For example, the driver of a team approaches a railway crossing without exercising his faculties to ascertain whether a train is approaching. A passenger, riding with him, having an equal opportunity to exercise his facul- ties, fails to do so. The team is driven upon the railway and the passenger is hurt by a train. He can not recover damages from the railway company, not because the negligence of the driver of the team is imputed to him, but because his own negligence contributed to pro- duce the injury. It is conceded that the rule that the driver's negli- gence may not be imputed to the person injured "is only applicable to cases where the relation of master and servant, or principal and agent, does not exist, or where the passenger is seated away from the driver, or is separated from the driver by an enclosure, and is without oppor- tunity to discover the danger and to inform the driver of it."* § 500. Negligence of Carrier not Imputed to Passenger,^ — As a general rule, the passenger commits his safety absolutely to the car- rier; he is not engaged in a joint undertaking with the carrier; the relation of master and servant, or of principal and agent, does not subsist between them; he has no control over the movements of the carrier or his servants, l^or, as a general rule, would such control be at all admissible; since, if one passenger might assume to exercise it, others might. The servants of the carrier would thus be interfered with by the passengers, one of whom would want them to act in one way, and another in another way. Thus, responsibility would be divided, and the dangers to the passengers would be thereby increased. If, therefore, the passenger, while thus in charge of the carrier, is killed or injured by the concurring negligence of the carrier and a third person or corporation, the negligence of the carrier is not im- puted to the passenger, and does not bar an action brought by him to recover damages from the other person or corporation." So, if a pas- kato, 35 Minn. 522; Cuddy v. Horn, ^Brickell v. New York &c. R. Co., 46 Mich. 596; Philadelphia &c. R. 120 N. Y. 290; s. c. 30 N. Y. St. Rep. Co. V. Hogeland, 66 Md. 149; Little 932; 42 Am. & Eng. Rail. Cas. 107; v. Hackett, 116 U. S. 366; Cray v. 24 N. E. Rep. 449; citing Robinson Philadelphia &c. R. Co., 23 Blatcht v. New York &c. R. Co., 66 N. Y. 11. (U. S.) 263; Reich v. Peck, 83 Hun a This section is cited in § 77. (N. Y.) 214; 63 N. Y. St. Rep. 806; 'Covington Transf. Co. v. Kelley, 31 N. Y. Supp. 391; Vessel Owners' 36 Ohio St. 86; Bunting v. Towing Co. V. Wilson, 63 Fed Rep. Hogsett, 139 Pa. St. 363; s. c. 626; 11 C. C. A. 366. 12 L. R. A. 268; Woodley v. 466 IMPUTED NEGLIGENCE. [2d Ed. senger is injured in a collision between two railway trains, on one of which he is riding, the other being a train belonging to another rail- way company, the negligence of the company whose passenger he is, will not prevent him from recovering damages from the other company;^" and so, where the passenger is riding on a dummy street railway car, and is injured by the dummy car colliding with a steam railway train. ^^ The rule equally applies in favor of one who engages a public hack, carriage, or coach, to drive him to a certain place, and does not, by the contract of hiring, assume any control over the driver.^^ His posi- tion is substantially that of a passenger on a railway train or on a vessel; though he may, under certain circumstances, have a better op- portunity to look out for his own safety. The Michigan reports afford a contribution to the law on the subject where the accident grew out of the collision of two steamboats. The court declined to follow the doctrine of Thorogood v. Bryan; but held that the owners of the col- liding steamers were jointly liable to a passenger injured, or to the representative of a passenger killed upon one of the colliding boats. ^^ The New York Court of Appeals have lately affirmed the same rule.^* A passenger who has just landed from a steamboat is not so identified with the steamboat company as to make the company solely liable for an injury suffered by the passenger from another quarter immediately afterwards, — as by being run over by a freight train on a railroad near the landing.^" This question has been considered by the Supreme Baltimore &c. R. Co., 8 Mackey 542; kens, 88 Ga. 60; s. c. 14 L. R. A. Georgia &o. R. Co. v. Hughes, 87 281; Randolph v. O'Riordan, 155 Ala. 610; New York &c. R. Co. v. Mass. 331; New York &c. R. Co. v. Cooper, 85 Va. 939; Flaherty v. Min- Cooper, 85 Va. 939; 13 Va. L. J. 290; neapolis &c. R. Co., 39 Minn. 328; 9 S. E. Rep. 321; 5 Rail. & Corp. s. c. 1 L. R. A. 680; Whelan v. New L. J. 494; Whelan v. New York &c. York &c. R. Co., 38 Fed. Rep. 15; R. Co., 38 Fed. Rep. 15; Robinson v. West Chicago Street R. Co. v. New York &c. R. Co., 66 N. Y. 11; Piper, 64 111. App. 605; aff'd in 165 Dyer v. Erie R. Co., 71 N. Y. 228. 111. 325; s. c. 46 N. E. Rep. 186; "Missouri &c. R. Co. v. Texas &c. O'Rourke v. Lindell R. Co., 142 Mo. R. Co., 41 Fed. Rep. 316; s. c. 8 342; s. c. 9 Am. & Bng. R. Cas. (N. Rail. & Corp. L. J. 137; Becke v. S.) 675; 44 S. W. Rep. 254; Evans Missouri &c. R. Co., 102 Mo. 544; v. Lake Erie &c. R. Co., 78 Fed. s. c. 9 L. R. A. 157; 13 S. W. Rep. Rep. 782; Hurley v. New York &c. 1053; East Tennessee &c. R. Co. v. Brew. Co., 13 App. Div. 167; s. c. Markens, 88 Ga. 60; s. c. 14 L. R. 43 N. Y. Supp. 259; Baltimore &c. R. A. 281; 13 S. B. Rep. 855; Larkin Co. V. Adams, 10 App. D. C. 97; s. c. v. Burlington &c. R. Co., 85 Iowa 25 Wash. L. Rep. 167; Missouri &c. 492; 52 N. W. Rep. 480. R. Co. V. Texas &c. R. Co., 41 Fed. " Georgia &c. R. Co. v. Hughes, 87 Rep. 316; Becke v. Missouri &c. R. Ala. 610; s. c. 39 Am. & Eng. Rail. Co., 102 Mo. 544; s. c. 9 L. R. A. Cas. 674; 6 South. Rep. 413. 157; Phillips v. New York &c. R. ^= Little v. Hackett, 116 U. S. 366. Co., 127 N. Y. 657; Dickson v. Mis- "Cuddy v. Horn, 46 Mich. 596. souri &c. R. Co., 104 Mo. 491; Carr "Cooper v. Eastern Trans. Co., v. Easton, 142 Pa. St. 139; Larkin v. 75 N. Y. 116. Burlington &c. R. Co., 85 Iowa 492; " Malsten v. Marquette &c. R. Co., Bast Tennessee &c. R. Co. v. Mar- 49 Mich. 94; s. c. 8 Am. & Eng. R. 467 1 Thomp. Neg.] contributory negligence. Court of Ohio, and the court have reached the conclusion that, where a passenger in the vehicle of a carrier is injured by the negligence of the carrier and a third person, as where a carrier's vehicle collides with the vehicle of such other third person, the passenger may bring an action jointly against both, or separately against either, and the negligence of the carrier in whose vehicle he was is not to be imputed to him to prevent his recovering damages against the third person. He is not limited in his action to his own carrier.^' § 501. Negligence of Carrier, When Imputed to Passenger. — In Pennsylvania, the doctrine of the English Court of Common Pleas in Thorogood v. Bryan/'' seems to have been adopted in its length and breadth. ^^ A later decision of that court reaffirming the same doctrine, but without examining any of the authorities, will not be regarded as a contribution to the law on the subject, of any additional value. This case holds that, in an action against the railroad com- pany to recover damages for the death of a person caused by a collision between the train of the defendant and a street passenger car, in which the deceased was travelling, the plaintiil, in order to recover, must show: 1. That the death resulted directly from the negligence of the defendant or its servants. 2. That the servants of the carrier in whose vehicle the deceased was were guilty of no negligence.^* Not only this, but the court go on and apply the rule as against the passen- ger^ that the measure of duty of the carrier company is extraordinary care, while that of the non-carrier company is merely ordinary care, according to circumstances. There is no sense in this. Where hu- man life is involved there is no just distinction as to the measure of duty growing out of the fact that the company is a carrier company or a non-carrier company. Such an idea is not only repugnant to common sense, but it shocks the conscience. More than this, the Pennsylvania court appeals to the doctrine that the fact that a col- lision took place raises no presumption of negligence by the non- carrier company ; though, according to a well-known rule, it does raise the presumption of negligence against the carrier company. It was therefore held error to instruct the jury that, if they found that the carrier company was not guilty of negligence, their verdict should be for the plaintiff against the non-carrier company, defendant.^" Cas. 291 (following Cuddy v. Horn, "Lockhart v. Lichenthaler, 46 Pa. 46 Mich. 596; s. c. 10 N. W. Rep. St. 151. 32). '°Phila. R. Co. v. Boyer, 97 Pa. St. "Transfer Co. v. Kelly, 36 Ohio 91. St. 86. '"Phila. &c. R. Co. v. Boyer, 9T "8 C. B. 114, 129; s. c. Thomp. Pa. St. 91; s. c. 11 Reporter 513. Car. Pass. 273. More recently the Pennsylvania 468 IMPUTED NEGLIGENCE. [2d Ed. § 502. Negligence of Driver not Imputed to Passenger on Private Conveyance Riding by Invitation.^ — While there are a few untenable decisions to the contrary/^ nearly all American courts are agreed that the rule under consideration extends so far as to hold that where a person, while riding on a private vehicle by the invitation of the driver, or the owner, or the custodian of the vehicle, and having no au- thority or control over the driver, and being under no duty to control his conduct, and having no reason to suspect any want of care, skill, or sobriety on his part, is injured by the concurring negligence of the driver and a third person or corporation, the negligence of the driver is not imputed to him so as to prevent him from recovering damages from the other tort-feasor.''^ Where one uninvited, or without the court have come around to the right doctrine: Bunting v. Hogsett, 139 Pa. St. 363; s. c. 12 L. R. A. 268; 21 Atl. Rep. 31. This was an action for damages for injuries by a per- son injured through a collision at a crossing between the train on which he was riding and a train of the defendant, a coke railroad. The negligence alleged on the part of the defendant was that the engineer and fireman, being frightened at what seemed to them an impending collision, deserted their engine. The court held that the company was liable for the injury which resulted from the engineer's leaping from his engine and submitting it with- out control to the consequences of the collision. The case also applies the well known doctrine that where one is injured by the concurrent and contributing negligence of two par- ties, one of whom is, at the time, the common carrier of his person, both are liable to him jointly and severally: Bunting v. Hogsett, 139 Pa. St. 363. a This section is cited in §§ 482, 1330. " Such as Otis v. Janesville, 47 Wis. 422. ^ Dean v. Pennsylvania R. Co., 129 Pa. St. 514; s. c. 6 L. R. A. 143; 39 Am. & Eng. Rail. Cas. 697; 18 Atl. Rep. 718; Michigan City v. Boeckling, 122 Ind. 39; s. c. 23 N. E. Rep. 518; Union &c. R. Co. v. Laps- ley, 4 U. S. App. 542; s. c. 51 Fed. Rep. 174; 2 C. C. A. 149; 16 L. R. A. 800; Pettingill v. Clean, 65 Hun (N. Y.) 624; s. c. 48 N. Y. St. Rep. 96; 20 N. Y. Supp. 367; Alabama &c. R. Co. V. Davis, 69 Miss. 444; s. c. 13 South. Rep. 693; Baltimore &c. R. Co. V. State, 79 Md. 335; FoUman V. Mankato, 35 Minn. 522; Carlisle V. Brisbane, 113 Pa. 544; Galveston &c. R. Co. V. Kutac, 72 Tex. 643; Nesbit V. Garner, 75 Iowa 314; s. c. 1 L. R. A. 152; State v. Boston &c. R. Co., 80 Me. 430; Knightstown v. Musgrove, 116 Ind. 121; Sheffield v. Central U. Teleg. Co., 36 Fed. Rep. 164; Dean v. Pennsylvania R. Co., 129 Pa. St. 514; s. c. 6 L. R. A. 143; McCaftery v. Delaware &c. Canal Co., 62 Hun (N. Y.) 618; s. c. 41 N. Y. St. Rep. 221; Bennett v. New York &c. R. Co., 61 Hun (N. Y.) 623; s. c. 40 N. Y. St. Rep. 948; Cahill V. Cincinnati &c. R. Co., 92 Ky. 345; Phillips v. New York &c. R. Co., 127 N. Y. 657; s. c. 38 N. Y. St. Rep. 675; 27 N. E. Rep. 978; Dick- son v. Missouri &c. R. Co., 104 Mo. 491; s. c. 16 S. W. Rep. 381; Carr v, Easton, 142 Pa. St. 139; s. c. 28 W. N. C. (Pa.) 77; 21Atl.Rep.822; 48Phila. Leg. Int. 346; Mann v. Weiand, 81 Pa. St. 243; Elyton Land Co. v. Mingea, 89 Ala. 521; s. c. 7 South. Rep. 666; Robinson v. New York &c. R. Co., 66 N. Y. 11; Randolph v. O'Riorden, 155 Mass. 331; s. c. 29 N. E. Rep. 583; Dyer v. Erie R. Co., 71 N. Y. 228; Roach v. Western &c. R. Co., 93 Ga. 785; s. c. 21 S. E. Rep. 67; Van Vranken v. Clifton Springs, 86 Hun (N. Y.) 67; s. c. 67 N. Y. St. Rep. 72; 33 N. Y. Supp. 329; Kessler v. Brooklyn Heights R. Co., 3 App. Div. (N. Y.) 426; s. c. 38 N. Y. Supp. 799; Strauss v. Newburgh Electric R. Co., 6 App. Div. 264; s. c. 39 N. Y. Supp. 998; Pyle V. Clark, 75 Fed. Rep. 644; s. c. 5 Am. & Eng. Rail. Cas. (N. S.) 156; Missouri &c. R. Co. v. Rogers, 91 Tex. 52; s. c. 8 Am. & Eng. R. 469 1 Thomp. Neg.] contributory negligence. knowledge of the driver of a private vehicle, gets upon the same for the purpose of riding, and does ride thereon, the relation of master and servant, or principal and agent, is in no proper sense created thereby, and the negligence of the driver will not be imputed to such passenger.^^ § 503. But Passenger not Absolved from Ordinary Care for his Own Safety. — But, as already stated,^* the rule of the preceding cases does not, under all circumstances, absolve the passenger in the private carriage from taking such precautions for his own safety as, under the circumstances, are reasonable. If he is riding by the side of the driver in an open carriage, and the driver, on approaching a railway track, fails to make any use of his faculties, to ascertain whether or not a train is approaching, — then it is a reasonable suggestion that the passenger ought to call his attention to the situation and remonstrate with him, or, if necessary to his own safety, leave the vehicle. ^° It has been ruled that a person so riding is bound to exercise ordinary care for his own safety ; and consequently that an instruction to a jury which directed their minds to the sole inquiry whether the driver of the wagon was exercising ordinary care, was erroneous as calculated to mislead them.^° In another court it is reasoned that the rule that the negligence of the driver of a wagon is not imputable to one riding with him when the accident occurs at a railroad crossing is applicable only to cases where the relation of master and servant, or principal Cas. (N. S.) 141; 40 S. W. Rep. 290; Johnson v. Gulf &c. R. Co., 2 956; rev'g 40 S. W. Rep. 849; Wei- Tex. Civ. App. 139. The negligence don V. Third Ave. R. Co., 3 App. of a father who, in driving upon a Div. (N. Y.) 370; 38 N. Y. Supp. railroad crossing without taking any 206; 73 N. Y. St. Rep. 699; Carmi necessary precautions, comes into V. Ervln, 59 111. App. 555; Zimmer- collision with a train, whereby his mann v. Union R. Co., 3 App. Div. daughter, who is riding with him, 219; s. c. 51 N. Y. Supp. 1; Lake is hurt, does not preclude her from Shore &c. R. Co. v. Boyts, 16 Ind. recovering damages from the rail- App. 640; s. 0. 45 N. E. Rep. 812; At- road company: New York &c. R. lantic &c. R. Co. v. Ironmonger, 95 Co. v. Kistler, 16 Ohio C. C. 316. Va. 625; s. c. 29 S. E. Rep. 319; Ber- "^ Ante, § 499. gold v. Nassau Electric R. Co., 30 "' Lapsley v. Union &c. R. Co., App. Div. 438; s. c. 52 N. Y. Supp. 11; 50 Fed. Rep. 172; aff'd 51 Fed. Rep, Leavenworth v. Hatch, 57 Kan. 57; 174; Meenagh v. Buckmaster, 26 s. c. 46 Pac. Rep. 65; Mullen v.Owos- App. Div. 451; s. c. 50 N. Y. Supp. so, 100 Mich. 103; s. c. 23 L.R.A.693; 85; Atlantic &c. R. Co. v. Ironmon- Cincinnati Street R. Co. v. Wright, ger, 95 Va. 625; s. c. 29 S. B. Rep. 54 Ohio St. 181; s. c. 32 L. R. A. 319; Bergold v. Nassau Electric R. 340; 35 Ohio L. J. 226; 43 N. E. Co., 30 App. Div. 438; s. c. 52 N. Rep. 688. Y. Supp. 11. =' Cincinnati Street R. Co. v. '• Chicago &c. R. Co. v. Bentz, 38 Wright, 54 Ohio St. 181; s. c. 32 111. App. 485; Central &c. R. Co. v. L. R. A. 340; 35 Ohio L. J. 226; 43 Hotham, 22 Kan. 41; Johnson v. N. B. Rep. 688. Compare Brickell Husband, 22 Kan. 277. V. New York &c. R. Co., 120 N. Y. 470 IMPUTED NEGLIGENCE. [2d. Ed. and agent, does not exist, or where the passenger is seated away from the driver, or is separated from him by an enclosure, and is without opportunity to discover the danger and to inform the driver of it.^^ Under this rule one who, riding by invitation in a vehicle in charge of another, remains in it, with knowledge that it is approaching at a fast trot a railway crossing where a train is about due, without keeping any lookout himself, and without requesting the driver to stop, — is guilty of contributory negligence.^* So, one who knows that a public highway is in a dangerous condition, and yet who voluntarily and without overruling necessity, attempts to pass over it and is injured in consequence of its defective condition, can not recover damages from the town, although he was being driven by another not a com- mon carrier; and this because of his own negligence, not because of the negligence of the person driving him.^* The sound conclusion seems to be that where a person who is sui juris — capable of caring for himself or herself — voluntarily rides in the private carriage of an- other, at his invitation or with his license or sanction, and is injured through the negligent driving of the latter, his negligence will or will not be imputed to the guest or licensee according to the circum- stances, and it will therefore be, to a large extent, a question of fact. In one' such case, where the guest who was thus injured was a woman who had reached the years of discretion, the court said: "In cases like the present, the question beqomes one of fact ; the test of the pas- senger's responsibility for the negligence of the driver depending upon the passenger's control, or right of control, of the driver, so as to constitute the relation of master and servant between them."^* It has been held that a passenger, who goes upon a boat to take passage which is moored near a place where blasting is being done, who knows that the blasting is being done at such place, and how it is being done, and who also knows that the boat will not depart until after the blast- ing is finished, but who nevertheless takes no precaution for his own safety, and, while so on the boat, is hurt by a stone thrown by a blast, can not recover damages from the contractors who are doing the blast- ing, by reason of his own contributory negligence.^ ^ " Brickell v. New York &c. R. Co., '' Smith v. Day, 86 Fed. Rep. 62. 120 N. Y. 290; s. c. 30 N. Y. St. Rep. The decision does not seem to be 932; 42 Am. & Eng. R. Cas. 107; 24 sound. - That the exercise N. E. Rep. 449. See also, for in- of ordinary care by a driver in struction on this subject held erro- crossing a street railway track does neous, — Smith v. New York &c. R. not relieve her guest, riding with Co., 38 Hun (N. Y.) 33. her, from the consequences of the " Dean v. Pennsylvania R. Co., 129 guest failing to exercise ordinary Pa, St. 514. care on her own part, — see Johnson ^Crescent v. Anderson, 114 Pa. v. Superior Rapid Transit R. Co., St. 643. 91 Wis. 233; s. c. 64 N. W. Rep. *> Mullen V. Owasso, 100 Mich. 103; 753. c. 23 L. R. A. 693. 471 1 Thomp. Neg.J contributory negligence. § 504. Negligence of Husband not Imputed to Wife.« — Although there are a few holdings to the contrary, mostly in jurisdictions where the doctrine of imputed negligence is recognized/^ — ^yet there is no ground, in reason or justice, growing out of the marital relation, for making a different rule from the one just discussed,'' for the case where a wife has committed her safety to her husband, — as where she is riding in a vehicle and he is driving, — than in any other case ; and the weight of authority is that, in such a case, the negligence of the husband is not imputed to the wife.'* Where a wife places herself and personal safety in the care of her husband, and he leaves her in a public street in a carriage, the horses of which are frightened by a blast in the street, run away and injure plaintiff, in an action for damages by her against the city, whether the injury was caused by the negligence of the husband is a question for the jury.'° One court has held that the negligence of a husband in driving with his wife over a defective highway can not be imputed to the wife so as to bar an action for damages against the township through whose negligence the high- way has become defective, unless the husband was under her direction and control at the time, — a qualification which is well recognized and sound.'* § 505. Negligence of One Co-Employe not Imputable to Another in Favor of a Stranger. — As hereafter seen, a servant can not recover damages from his master for an injury inflicted upon him through the negligence of a fellow-servant engaged in the same common em- ployment, unless the negligence of the master in some way concurred with that of the fellow-servant in producing the injury.'^ If, how- ever, the negligence of the master did concur with that of the fellow- aThis section is cited in § 1250. Rep. 481; Platz v. Cohoes, 24 Hun ""Prideaux v. Mineral Point, 43 (N. Y.) 101; s. c. 8 Abb. (N. Y.) Wis. 513; s. c. 28 Am. Rep. 558; N. Cas. 392; Galveston &c. R. Co. Carlisle v. Sheldon, 38 Vt. 440; Hun- v. Kutac, 72 Tex. 643; s. c, on an- toon V. Trumbull, 2 McCrary (U.S.) other app., 76 Tex. 473; 13 S. W. 314 (charge to jury); Gulf &c. R. Rep. 327; Chicago &c. R. Co. v. Co. V. Greenlee, 62 Tex. 344 (neces- Spilker, 134 Ind. 380; s. c. 32 Am. sarily overruled in Galveston &c. L. Reg. 763; 33 N. B. Rep. 280; re- R. Co. V. Kutac, 72 Tex. 643). There hearing denied in 34 N. E. Rep. 218; is also an untenable holding to the Shaw v. Craft, 37 Fed. Rep. 317; effect that the negligence of a Sheffield v. Central Union Telegraph servant, employed by a husband to Co., 36 Fed. Rep. 164. drive a carriage containing himself '"Joliet v. Seward, 86 111. 402; and wife, is imputable to the wife s. c. 29 Am. Rep. 35. as well as to the hustand: Cen- " Reading Twp. v. Telfer, 57 Kan. tral Pass. R. Co. v. Chatterson (Ky. 798; s. c. 48 Pac. Rep. 134. See also, Sniper. Ct), 14 Ky. L. Rep. 663. Hunger v. Sedalia, 66 Mo. App. 629; ^ Ante, § 502. s. c. 2 Mo. App. Rep. 1373. " Louisville &c. R. Co. v. Creek, " See the title Master and Servant 130 Ind. 139; s. c. 14 L. R. A. 733; in a subsequent volume. 49 Am. & Eng. R. Cas. 451; 29 N. E. 472 IMPUTED NEGLIGENCE. [2d Ed. servant in producing the injury, then the case is like any other case where a person is injured by the concurring negligence of two per- sons, in which case he may have an action against either or both of them.^^ The rule is the same where a servant is injured through the concurring negligence of a fellow-servant and a stranger other than the common master; the negligence of the fellow-servant is not im- putable to him, but he is responsible for his own negligence merely.^* Thus, the negligence of the engineer of a locomotive engine will not be imputed, as contributory negligence, to a fireman on such engine, who is injured by a collision between it and an engine on a crossing road, in an action by the fireman against the company operating the latter road.*" § 506. Negligence of One Joint Undertaker Imputable to the Other. — There is some small authority in support of the proposition that the negligence of one of two joint undertakers may be imputed to the other, the governing principle being that each is the agent of the other. Thus, it has been held that the negligence of a driver of a wagon is imputable to one riding with him, where they are occupied together in moving furniture, and use the wagon for the purpose.*^ So, in a case where two mechanics were riding in a wagon, in which they were transporting their tools, one of whom was driving, the "Ante, § 75; Colegrove v. New to prevent him from recovering York &c. R. Co., 20 N. Y. 492. damages from the owner of the ™ Schmidt V. Steinway &c. R. Co., truck for the hurt which he re- 55 Hun (N. Y.) 496; s. c. 29 N. Y. ceived In the collision: Hobson v. St. Rep. 201; 8 N. Y. Supp. 664; 9 New York Condensed Milk Co., 25 N. Y. Supp. 939; McCormlck v. Nas- App. Dlv. Ill; s. c. 49 N. Y. Supp. sau Electric R. Co., 18 App. Dlv. 209. There is a holding to the 333; 46 N. Y. Supp. 230; denying effect that the negligence of a serv- rehearlng In 44 N. Y. Supp. 648, and ant employed by the husband Is 16 App. Div. 24; Chicago &c. R. Co. imputable to the wife: Central Pass. V. Chambers, 68 Fed. Rep. 148; Ab- R. Co. v. Chatterson, 14 Ky. L. Rep. bltt V. Lake Erie &c. R. Co., 150 663. But this is untenable, unless Ind. 498; s. c. 40 N. E. Rep. 40; the circumstances were such that Bailey v. Jourdan, 18 App. Div. (N. the servant was also the servant or Y.) 387; s. c. 46 N. Y. Supp. 399; agent of the wife. That the negli- Seaman v. Koehler, 122 N. Y. 646, gence of one mechanic, in driving mem.; 33 N. Y. St. Rep. 729; 25 a private wagon in which another N. B. Rep. 353; Perry v. Lansing, 17 mechanic is riding, in which they Hun (N. Y.) 34. See also. Young were carrying their tools, upon a V. New York &c. R. Co., 30 Barb, railroad crossing, without looking or (N. Y.) 229; Smith v. New York &c. listening, is imputable to the latter R. Co., 19 N. Y. 127, 132. so as to prevent recovery for an *■ Cray v. Philadelphia &c. R. Co., injury caused thereby, — was held in 23 Blatchf. (U. S.) 263; Chicago &c. Omaha &c. R. Co. v. Talbot, 48 Neb. R. Co. V. Chambers, 68 Fed. Rep. 627; s. c. 67 N. W. Rep. 599; the 148. So, the negligence of a view being that the driver was act- driver of a street-car in running ing as the agent of the other. Into a truck, negligently driving in " Cass v. Third Ave. R. Co., 20 the way of a car, is not imputable App. Dlv. 591; s. c. 47 N. Y. Supp. to the conductor of the car, so as 356. 473 1 Thomp, Neg.] contributory negligence. driver was held to be the agent of the other, so that no recovery could be had by the latter, where he was injured through the negligence of the former, there being no evidence of any disability on the part of the plaintifE.^^ In such a ease, where one is under such physical dis- ability as to find it necessary to place himself in the care of the other, he would be constituting that other his agent, and the negligence of such agent in so driving upon a railway track as to cause the plaintiff injury through a collision will be imputed to the latter.*' § 507, Negligence of one Employe Imputable to a Co-Employe' in Favor of a Stranger. — The negligence of one of two car inspectors upon whom the other, either by express agreement or understanding, relied to keep a lookout for approaching cars while he was in such position under a standing car that he could not see approaching cars, is imputable to him.** § 508. Negligence of one Policeman not Imputable to Another. — The negligence of one policeman, detailed to drive an ambulance to bring prisoners to the station-house, in driving across a railway track and in front of an approaching engine, was not imputed to another policeman who was riding inside the ambulance, the curtains of which were down.*^ § 509. Negligence of Driver of Hose Cart not Imputable to Fire- man Riding on It. — The negligence of the driver of a hose cart is not imputable to a fireman riding on the cart, although they are engaged in the common service of the fire department of the city.** § 510. When Negligence of Wife Bars Action by Husband.: — The contributory negligence of the wife may bar an action by her husband in case of her being hurt through the negligence of another, the action being grounded on the loss of her society and the expenses of her cure, although the statutes in force in the jurisdiction have emancipated "Omaha &c. R. Co. v. Talbot, 48 Citizens' R. Co., 53 Mo. App. 276; Neb. 627; s. c. 67 N. W. Rep. 599. Puterbaugh v. Reasor, 9 Ohio St. "Johnson v. Gulf &c. R. Co., 2 484. Tex. Civ. App. 139. "Bailey v. Jourdan, 18 App. Dlv. "Abbitt V. Lake Erie &c. R. Co., (N. Y.) 387; s. c. 46 N. Y. Supp. 150 Ind. 498; 50 N. E. Rep. 729, 399. rev's s. c. 40 N. E. Rep. 40. Follow- « Houston City Street R. Co. v. ing the doctrine of the foregoing Richart, 87 Tex. 539; s. c. 29 S. W. case, that the negligence of one em- Rep. 1040, rev'g 27 S. W. Rep. 918; ploye is imputed to a co-employ6 in Elyton Land Co. v. Mingea, 89 Ala. favor of a stranger, see Minster v. 521; s. c. 7 South. Rep. 666. 474 IMPUTED NEGLIGENCE. [2d Ed. her from many common-law disabilities and relieved him from re- sponsibility for civil injuries committed by her.*^ § 511. When Tow not Chargeable with Negligence of Tug. — Where a vessel is being towed and collides with an obstruction to navigation made or left by the fault of another, and an action is brought against that other for the damages, and the tug occupies the status of an independent contractor in making the tow, wholly con- trolling the movements of the vessel which is being towed, — the negli- gence of the tug can not be set up as a defense to the action by the owner of the tow.** § 512. Negligence of Bailee not Imputable to Bailor. — Unless the principles upon which the courts have at last settled have been grossly misconceived, the negligence of a bailee or his servants is not imputa- ble to his bailor, so as to prevent the bailor from recovering damages from a third party for an injury to the property.*^ § 513. Hirer of Carriage Allowing Friend to Drive. — If the hirer of a carriage allows one of his friends to drive, the hirer is responsible for the negligence of the friend from which an accident results:^" the reason being that the hirer thereby constitutes the friend his agent for the particular purpose. § 514. Negligence of Tenant not Imputable to Landlord. — The owner of a building is not barred from a recovery of damages from a borough resulting from an overflow caused by a negligent obstruction of a sewer, from the fact that one of his tenants has thrown some of the matter constituting the obstruction into the sewer. ^^ The reason is that a landlord is not, in general, liable for the negligence of his tenant ;°^ though both may be liable for a nuisance on the premises existing at the time of the demise^ the one as its author, the other as its continuer."' "Chicago &c. R. Co. v. Honey, 63 ™ Flood v. London West, 23 Ont. Fed. Rep. 39; s. c. 26 L. R. A. 42; App. 530. 12 C. C. A. 190. " Boehm v. Bethlehem, 4 Pa. "Vessel Owners' Towing Co. v. Super. Ct. 385. Wilson, 11 C. C. A. 366; s. c. 63 ''"Wunder v. McLean, 134 Pa. St. Fed. Rep. 626. 334. " New York &c. R. Co. V. New Jer- ""Wunder v. McLean, supra; sey Electric R. Co., 60 N. J. L. 338; Knauss v. Brua, 107 Pa. St. 83 (land- s. c. 38 Atl. Rep. 838; affi'd in 61 lord liable) ; Fow v. Roberts, 108 N. J. L. 287; s. c. 41 Atl. Rep. 1116. Pa. St. 489 (tenant liable); post, §§ 1158, 1159. 475 TITLE FOUR. DOCTRINE OF RESPONDEAT SUPERIOR. 477 TITLE FOUR. DOCTRINE OF RESPONDEAT SUPERIOR. Chapter XV. Liability of Principal or Master for ZsTegligent Acts of Agent or Servant, §§ 518-548. XVI. Liability of Principal or Master for Willful, Malicious, or Criminal Acts of Agent or Servant, §§ 552-574. XVII. Who are and Who are not Servants or Agents within the Eule of Respondeat Superior, . §§ 578-606. XVIII. Questions of Procedure Involved in the Doc- trine of Respondeat Superior, §§ 610-616. CHAPTER XV. LIABILITY OF PRINCIPAL OR MASTER FOR NEGLIGENT ACTS OF AGENT OR SERVANT. Section 518. General rule as to master's lia- bility for acts of servant. 519. Limitations of this rule. 580. Rule extends to negligent and unintentional wrongs com- mitted by the servant in the master's business. 521. Illustrations of the rule. 522. Master not liable where serv- ant abandons the master's duty to effect some purpose of his own. 623. Liability of master where serv- ant, in effecting some pur- pose of his own, fails to guard dangerous agencies committed to his care. Section 524. Rule where master knows of habitual misconduct on part of servant and neglects to ■ prevent it. 525. Master not liable where serv- ant acts outside the scope of his employment and author- ity. 526. Test by which to determine whether servant acts within the scope of his employment. 527. What acts not deemed within the scope of the employment of agents and servants under various circumstances. 479 1 Thomp. Neg.] doctrine of respondeat superior. Section 528. Further acts not deemed -with- in the scope of the employ- ment of agents and servants. 529. Liability of master for select- ing incompetent or improper servants. 530. Acting without orders or against orders. 531. What if the person injured knows that the servant is acting contrary to orders. 532. Rule where the master com- mits to the servant certain absolute duties which the master owes to others. 533. Further of cases where master has an absolute duty to per- form. 534. Some illustrations of the fore- going doctrines. 535. Other conclusions resulting from the foregoing doctrines. 536. Master liable for accidental death produced by his serv- ant. 537. Respondeat superior in the re- lation of parent and child. Section 538. Intervening negligence of third persons. 539. Liability of the master by rati- fication or adoption. 540. Liability of master for serv- ant's unlawful discharge of implied duties. 541. Instances of acts deemed with- in the scope of servant's em- ployment. 542. Other such instances. 543. Whether the rule of respondeat superior applies to charitable corporations. 544. Power of corporations to em- ploy surgeons or nurses for wounded employes, etc. 545. Through what ofiScer this pow- er exercised. 546. Superintendents, surgeons, road masters, etc. 547. The subject considered with special reference to railway accidents. 548. Ratification of such engage- ments. § 518. General Rule as to Master's Liability for Acts of Serv- ant.^ — It is a general rule of law that a principal or master is civilly responsible for wrongs committed by his agent or servant while acting about the business of the principal or master and within the scope of the employment of the agent or servant.^ It would perhaps be difii- aThis section is cited in §§ 863, 899. ^Tuberville v. Stamp, 1 Ld. Raym. 264; Hilsdorf v. St. Louis, 45 Mo. 94; Minter v. Pacific R. Co., 41 Mo. 503; Limpus v. London &c. Omnibus Co., 1 Hurl. & Colt. 526; Venn. &c. Steam Nav. Co. v. Hunger- ford, 6 Gill & J. (Md.) 291; Illinois &c. R. Co. V. Reedy, 17 111. 582; Noble V. Cunningham, 74 111. 51; Cook V. Parham, 24 Ala. 21; Don- aldson V. Mississippi &c. R. Co., 18 Iowa 280; Armstrong v. Cooley, 10 111. 509; Snyder v. Hannibal &c. R. Co., 60 Mo. 413; Simmons v. Monier, 29 Barb. (N. Y.) 420; Gilmartin v. New York, 55 Barb. (N. Y.) 239; Lannen v. Albany Gas Light Co., 480 46 Barb. (N. Y.) 264 (aflirmed, 44 N. Y. 459); Chapman v. New York &c. R. Co., 31 Barb. (N. Y.) 399 (aflirmed, 33 N. Y. 369); Cosgrove V. Ogden, 49 N. Y. 255; Courtney v. Baker, 60 N. Y. 1 (aflirming 5 Jones & Sp. 249); Day v. Brooklyn City R. Co., 12 Hun (N. Y.) 435; Levi- ness V. Post, 6 Daly (N. Y.) 321; Mott V. Consumers' Ice Co., 73 N. Y. 543; s. c. 6 Reporter 404; Tuel V. Weston, 47 Vt. 634; Enos v. Ham- ilton, 24 Wis. 658; McCahill v. Kipp, 2 E. D. Smith (N. Y.) 413; Thomas V. Winchester, 6 N. Y. 397; Ryall v. Kennedy, 8 Jones & Sp. (N. Y.) 347; Pickens v. Diecker, 21 Ohio St. 212; Harriss v. Mabry, 1 Ired. (N. C.) 240; Burns v. Poulsom, L. R. 8 C. LIABILITY OF PKINCIPAL FOR NEGLIGENCE OF AGENT. [2d Ed, cult to quote any very distinct reason in support of it.^ One of the most familiar and extensive maxims of the law exacts of every person so to use his property as not to injure his neighbor.^ The rule under consideration may be referred to a corresponding obligation imposed by the law upon every member of society, so to conduct his business as not to injure others. With this obligation upon him, the law wisely and justly charges him with the same responsibility for acts done by the hand of another as for acts done by his own hand ; and this rule of law takes form in the maxim. Qui facit per alium, facit per se.* P. 563; s. c. 42 L. J. (C. P.) 302; 22 Week. Rep. 20; 29 L. T. (N. S.) 329; Venables v. Smith, 2 Q. B. Div. 279; Whiteley v. Pepper, 2 Q. B. Div. 276; Pickard v. Smitli, 10 C. B. (N. S.) 470; Booth v. Mister, 7 Car. & P. 66; Sadler v. Henlock, 4 El. & Bl. 570; 1 Jur. (N. S.) 677; 24 L. J. (Q. B.) 138; Foreman v. Can- terbury, L. R. 6 Q. B. 214; What- man V. Pearson, L. R. 3 C. P. 422; Mitchell V. Crassweller, 13 C. B. 235; Wilson v. Rockland Man. Co., 2 Harr. (Del.) 67; Tebbutt v. Bris- tol &c. R. Co., L. R. 6 Q. B. 73; 19 Week. Rep. 383; 40 L. J. (Q. B.) 78; Holmes v. Wakefield, 12 Allen (Mass.) 580. ' Mr. Justice Cooley has presented the subject in an admirable manner, though necessarily with brevity, in the eighteenth chapter of his work on Torts. But he does not attempt to state the reasons which underlie the rule. The maxim, Qui facit per alium, facit per se, obviously does not suggest the reason of the rule, but is rather a brief way of stating the rule itself. ' Sic utere tuo ut alienum nan Xaedas: Broom's Leg. Max. 365, 366, 371, 378, 383, 400, 862. *Rolfe, B., in Hobbit v. London &c. R. Co., 4 Exch. 255; Coleridge, J., in Lumley v. Gye, 2 El. & Bl. 216; Hutchinson v. York &c. R. Co., 5 Exch. 350; Lord Cran worth, in Bartonshill Coal Co. v. Reid, 3 Macq. H. L. Cas. 266; s. c. 4 Jur. (N. S.) 767. Among the many modern cases expounding the maxim, qui facit per alium, facit per se, in various relations, are the following: McCloskey v. Powell, 123 Pa. St. 62; s. c. 46 Phila. Leg. Int. 200; 19 Pitts. L. J. (N. S.) 232; 23 W. N. C. 183; 16 Atl. Rep. 420; Hamish V. Herr, 98 Pa. St. 9; McClung v. Dearborn, 134 Pa. St. 396; s. c. 8 L. R. A. 204; 47 Phila. Leg. Int. 376; VOL. 1 THOMP. NEG.— 3J 26 W. N. C. 42; 19 Atl. Rep. 698; Fischer v. Anslyn, 30 Mo. App. 316; Lynch v. Donnell, 104 Mo. 519; s. c. 15 S. W. Rep. 927; Long v. Donnell, 104 Mo. 519; s. c. 15 S. W. Rep. 931; Long v. Young, 104 Mo. 519; s. c. 15 S. W. Rep. 931; State v. Armstrong, 106 Mo. 395; s. c. 16 S. W. Rep. 604; Bngel v. Eureka Club, 59 Hun (N. Y.) 593; s. c. 37 N. Y. St. Rep. 527; 14 N. Y. Supp. 184; Devereaux v. McMahon, 108 N. C. 134; s. c. 12 L. R. A. 205; 12 S. E. Rep. 902; Houser v. McGinnas, 108 N. C. 631; s. o. 13 S. E. Rep. 139; Anderson v. Cleburne Bldg. &c. Asso., 4 App. Cas. (Tex.) 257; s. c. 16 S. W. Rep. 298; Nalle v. Paggi, 81 Tex. 201; s. c. 13 L. R. A. 50; 16 S. W. Rep. 932; Hopkins v. Joyce, 78 Wis. 443; s. c. 47 N. W. Rep. 722; Hartman v. Muehlebach, 64 Mo. App. 565; s. c. 2 Mo. App. Rep. 956; McLachlin v. Barker, 64 Mo. App. 511; s. c. 2 Mo. App. Rep. 1023; Paterson v. Higgins, 58 111. App. 268; State v. Pond, 93 Mo. 606; s. c. 12 West. Rep. 391; 6 S. W. Rep. 469; Jackson v. Galveston &c. R. Co., 14 Tex. Civ. App. 685; s. c. 37 S. W. Rep. 786; affd in 90 Tex. 372; s. c. 38 S. W. Rep. 745; Bristol- Goodson Electric Light &c. Co. v. Bristol Gas &c. Co., 99 Tenn. 371; s. c. 42 S. W. Rep. 19; Ferguson v. Brown, 75 Miss. 214; s. c. 21 South. Rep. 603; Mutual F. Ins. Co. v. Ward, 95 Va. 231; s. c. 28 S. E. Rep. 209 ; United States v. Potter, 56 Fed. Rep. 83; Sagers v. Nuckolls, 3 Colo. App. 95; s. c. 32 Pac. Rep. 187; Engel V. Eureka Club, 137 N. Y. 100; s. c. 50 N. Y. St. Rep. 188; 32 N. E. Rep. 1052; Peters v. Stewart, 2 Misc. 357; s. c. 51 N. Y. St. Rep. 120; 21 N. Y. Supp. 993; rev'g 1 Misc. 8; s. c. 48 N. Y. St. Rep. 511; 20 N. Y. Supp. 661; Lonsdale Co. v. Cumberland License Com'rs, 18 R. I. 5; s. 0. Index LL. 1; 25 Atl. Rep. 481 1 Thomp. Neg.J doctrine op respondeat superior. § 519. limitations of this Rule.^ — In order to a clear understand- ing of the rule of respondeat superior, it is necessary to keep in mind that in its general outline it is governed by the following principles: 1. The relation of principal and agent, or of master and servant, must have subsisted between the person inflicting the injury and the person sought to be made liable for it.° 3. The act or omission must have been something done or omitted within the scope of the agency or em- ployment of the agent or servant, under an authority actually con- ferred, or one that a stranger might imply from surrounding circum- stances.® 3. If it is within the scope of such agency or employment, it is immaterial that the servant or agent, in doing or omitting that which led to the mischief, proceeded without orders or against orders.'' 4. If the act done is within the scope of the agency or employment, then it is immaterial that it was willful, wanton or malicious, or an act that might, have been made the subject of a criminal prosecution, or such as might be visited with exemplary damages.* 5. Where the law casts an absolute duty upon the principal or master in behalf of a 655 ; Carlisle v. State, 31 Tex. Grim. Rep. 537; s. e. 21 S. W. Rep. 358; Slkes v. State (Tex. Grim. App.), 28 S. W. Rep. 688 (no off. rep.); McDowell V. Homer Ramsdell Transp. Go., 78 Hun (N. Y.) 228; s. c. 60 N. Y. St. Rep. 10; 28 N. Y. Supp. 821; State v. Dillon, 32 Fla. 545; s. c. 22 L. R. A. 124; 44 Am. & Bng. Corp. Gas. 134; 14 Soutli. Rep. 383; Kingan v. Silvers, 13 Ind. App. 80; s. c. 37 N. E. Rep. 413; State v. Stone, 120 Mo. 428; s. c. 23 L. R. A. 194; 25 S. W. Rep. 376; Amato v. Sixth Ave. R. Co., 9 Misc. 4; s. c. 59 N. Y. St. Rep. 674; 29 N. Y. Supp. 51; Higgins v. Western Union Tel. Co., 8 Misc. 433; s. c. 58 N. Y. St. Rep. 852; 28 N. Y. Supp. 676; Com. V. Feinberg, 3 Pa. Dist. R. 361; s. c. 13 Pa. Go. Ct. 527; 24 Pittsb. L. J. (N. S.) 131; Prince v. Dick- son, 39 S. G. 447; s. c. 18 S. E. Rep. 33; State v. Steeves, 29 Ore. 85; s. c. 43 Pac. Rep. 947; Phillipps v. Creditors, 36 La. An. 905; Popper V. Bingham, 20 Misc. 173; s. c. 45 N. Y. Supp. 820; Nicholson v. State, 38 Fla. 99; s. c. 20 South, Rep. ,218; Ghenowith v. Cameron (Id.), 43 Pac. Rep. 503 (no off. rep.); Lake Shore &c. R. Co. v. Hochstim, 67 111. App. 514; s. c. 2 Chic. L. J. Wkly. 65; Salinas v. G. Aultman Co., 45 S. C. 283; s. c. 22 S. E. Rep. 889; First Nat. Bank v. Harkness, 42 W. Va. 156; s. c. 32 L. R. A. 408; 482 24 S. E. Rep. 548; East Tennessee &c. R. Go. V. Markens, 88 Ga. 60; s. c. 14 L. R. A. 281; s. c. 13 S. E. Rep. 855; Re Male's Will (N. J.), 24 Atl. Rep. 370 (no off. rep.) ; Wal- ler V. Lasher, 37 111. App. 609; Gahill V. Cincinnati &c. R. Co., 13 Ky. L. Rep. 714; s. c. 49 Am. & Eng. Rail. Gas. 390; 18 S. W. Rep. 2 (no off. rep.) ; State v. Patterson (Mo.), 20 S. W. Rep. 9 (no off. rep.); Re Strong's Will, 39 N. Y. St. Rep. 852; s. c. 19 Wash. L. Rep. 572; 16 N. Y. Supp. 104; 2 Conn. (N. Y.) 574; Bibb v. Norfolk &c. R. Co., 87 Va. 711; s. c. 47 Am. & Eng. Rail. Cas. 651; 31 Am. Reg. 319; 14 S. E. Rep. 163; Reed v. Newcomb, 64 Vt. 49; s. c. 23 Atl. Rep. 589; Metcalf V. Hart, 3 Wyo. 513; s. c. 27 Pac. Rep. 900; Metzger v. Huntington, 139 Ind. 501; s. c. 39 N. E. Rep. 235; Pueblo Electric Street R. Go. v. Sherman, 25 Colo. 114; s. c. 53 Pac. Rep. 322; Simpson v. Masson, 11 Misc. (N. Y.) 351; s. c. 65 N. Y. St. Rep. 278; 32 N. Y. Supp. 136. a This section is cited in § 522. " Mclnerney v. Delaware &c. Canal Co., 151 N. Y. 411; s. c. 45 N. B. Rep. 848; aff'g s. c. 82 Hun (N. Y.) 615. ° Petersen v. Hubbell, 12 App. Div. 372; s. c. 42 N. Y. Supp. 554. 'Post, § 530. ^Post, § 554. LIABILITY OF PRINCIPAL FOR NEGLIGENCE OF AGENT. [2d Ed. third person, the performance of which duty the principal or master commits to an agent or servant, the principal or master can not escape responsibility for the failure of the agent or servant to perform it, whether the failure is accidental or willful, the result of negligence or malice.^ § 520. Eule Extends to Negligent and Unintentional Wrongs Committed by the Servant in the Master's Business. — A mere state- ment of the rule suggests that the principal or master will in all cases be liable for wrongs committed by his agent or servant, while acting about the business of' the former, and within the scope of his employ- ment, through inattention, negligence, or want of skill. The eases already cited, and a great array of other adjudications, may be ap- pealed to in support of this statement. It is perhaps the only branch of the doctrine upon which all the cases unite, and as to which there is no dispute. It is a rule so plain and easy of application that it could scarcely be made clearer by illustration.^" Nor is there any difficulty in applying it so as to charge the master for injuries in- flicted by his servant in executing difficult orders.^^ It is scarcely necessary to say that the rule of respondeat superior operates to charge the master, in the case where the act done by the servant is prohibited by statute^ so as to become, under principles elsewhere discussed,^^ negligence per se, as well as to cases where the act of the servant amounts to negligence under the principles of the common law.^* ° Stranahan Bros. Catering Co. v. Supp. 270 ; Conlon v. Eastern R. Co., Coit, 55 Ohio St. 398; s. c. 37 Ohio 135 Mass. 195; Coler v. New York L. J. 3; 44 Cent. L. J. 140; 45 N. B. Bottling Co., 23 App. Div. 177; s. c. Rep. 634. 48 N. Y. Supp. 893; Hess v. Berwind- "McKenzle v. McLeod, 10 Bing. White Coal Min. Co., 178 Pa. St. 385; Whatman v. Pearson, L. R. 3 239; s. c. 35 Atl. Rep. 990; Pine C. P. 422; Moore v. Metropolitan R. Bluff Water &c. Co. v. Schneider, Co., L. R. 8 Q. B. 36; Goff v. Great 62 Ark. 109; s. c. 33 L. R. A. 366; Northern R. Co., 30 L. T. (N. S.) 34 S. W. Rep. 547; Kelly v. Cohoes 148; Sullivan v. Scripture, 3 Allen Knitting Co., 8 App. Div. 156; s. c. (Mass.) 564; McDonald v. Snelling, 40 N. Y. Supp. 477; Sullivan v. Mc- 14 Allen (Mass.) 290; Corrigan v. Manus, 19 App. Div. 167; s. c. 45 Union Sugar Refinery, 98 Mass. 597; N. Y. Supp. 1079; Clark v. Koehler, Brown v. Purviance, 2 Har. & G. 46 Hun (N. Y.) 537; s. c. 12 N. Y. 316; Toledo &c. R. Co. v. Maine, 67 St. Rep. 573; Georgia &c. R. Co. v. 111. 298; Leviness v. Post, 6 Daly Propst, 83 Ala. 518; s. c. 3 South. (N. Y.) 321; Ballou v. Farnum, 9 Rep. 764. Allen (Mass.) 47; Laugher v. "^ Gregory v. Piper, 9 Barn. & Pointer, 5 Barn. & Cress. 547; Jones Cress. 591; s. c. 2 Thomp. Neg., 1st V. Hart, 2 Salk. 440; Sammell v. ed., 862; Carman v. New York, 14 Wright, 5 Esp. 263; Hennign v. Abb. Pr. (N. Y.) 301; Luttrell v. Western U. Teleg. Co., 41 Fed. Rep. Hazen, 3- Sneed (Tenn.) 20. 864; Campbell v. McGregor, 29 N. "Anie, § 10. B. 644; Rhodes v. New York &c. R. "Osborne v. McMasters, 40 Minn. Co., 8 Misc. (N. Y.) 366; s. c. 59 103; s. c. 41 N. W. Rep. 543. A N. Y. St. Rep. 596; 28 N. Y. Supp. court in New York has held in sub- 691; Treanor v. Manhattan R. Co., stance that a master is liable for 39 N. Y. St. Rep. 186; s. c. 14 N. Y. damages to the property of a third 483 1 Thomp. Neg.J doctrine of respondeat superior. § 521. Illustrations of the Rule. — Although perhaps nine out of every ten of the cases cited in this work proceed upon the theory of respondeat superior, yet it is proposed to give a few brief illustrations of the doctrine here. A railway flagman knew of the approach of an engine backing towards a child on the track, but gave the child no warning, and the child was hurt. It was held that he was guilty of negligence imputable to the railway company.^* The defendant sent her servant to a factory to receive for her certain bags of paper shav- ings. It was arranged that the shavings should be thrown down through a hatchway to the defendant's servant, and that he should guard the passageway beneath so as to prevent Injury to passers-by. He failed so to guard it, and a person passing by was struck by one of the falling bags and injured. It was held that the defendant was liable, since her servant was acting about the very matter which he was sent to perform, the receiving of the goods ; and that her liability was not negatived by the fact that her servant assented to the danger- ous mode of receiving them at the suggestion of the servant of the owner of the factory. ^^ The servant of a gas company shut off the gas from the house of A., in such a manner that the gas filled the cellar, in consequence of which the wife of A., going into the cellar, was injured by an explosion. It was held that the gas company was liable to pay damages.^* The plaintiff's husband, while drunk, lay down on a street-car track, and the driver of the car, though seeing an object which he thought to be a bundle of grain, made no effort to stop his car, in which he could easily have succeeded, but drove di- rectly over the drunken man, and so killed him. It was held that the company was liable.^^ A butcher directed his servant to go to a cer- tain place and kill and dress a beef belonging to the butcher. The servant went to the place, and, finding no such animal there, killed and dressed a blooded bull beloriging to the plaintiff, honestly sup- posing that it belonged to his master. It was held that the butcher was liable for the value of the buU.^' The plaintiff placed his horse in care of the defendant, a livery-stable keeper, to be boarded. The person produced by the negligent master at all, but may be rejected act of his servant, where the act as surplusage. was within the general scope of the " Pinkelstein v. New York &c. R. servant's employment, and where Co., 41 Hun (N. Y.) 34. the motive which prompted it, and "Post v. Stockwell, 44 Hun (N. the purpose sought by it, were like- Y.) 28. wise within the scope of his em- ^"Louisville Gas. Co. v. Guten- ployment. Keep v. Walsh, 17 App. kuntz, 82 Ky. 432. Div. 104; s. c. 44 N. Y. Supp. 944. "Werner v. Citizens' R. Co., 81 But it is conceived that if the act Mo. 368; afiarmlng s. c. 11 Mo. App. was within the general scope of his 601. employment, the other qualifications " Maier v. Randolph, 33 Kan. 340. do not affect the liability of the 484 LIABILITY OF PRINCIPAL FOR NEGLIGENCE OF AGENT. [2d Ed. watchman of the defendant allowed three men, partially intoxicated, to go into the loft of the stable, which was full of dry hay, to sleep there during the night, knowing that they were smokers, and that they were in the habit of carrying pipes and matches with them. An hour and a half later, the stable took fire, and the plaintiff's horse was burned to death. It was held that the livery-stable keeper was re- sponsible for the act of his watchman, and that, whether the watch- man was negligent in allowing the three men to sleep in the loft was a question for the jury.^" A corporation, owning and using a grain elevator operated by horse-power, which was attractive to children, who were permitted to frequent it, was held liable for the negligence of its employe in hitching a horse to the horse-power, starting the horse, and then leaving it with no one in charge, while a child six years old was sitting on the wheel exposed to danger from the uncovered machinery, — the child having, soon afterwards, got ofE the wheel, got caught under the tumbling rod and killed.^" A person contracted to give a pyrotechnic display, and committed the performance of the contract to his agent. He thereby became answerable in damages to a person who was hurt through the negligence of the agent, in dis- charging a fire bomb.^^ The rule of respondeat superior applies where the negligence of a servant has resulted in an injury to one not in the service of the master, who, either in furtherance of his own interests or those of his master, was engaged in assisting such servant, in the performance of his work; since, under such circumstances, the person injured was neither a volunteer to whom the master owed no such duty of care, nor a fellow-servant under the rule exonerating the master from liability for the acts of his co-servant, but a licensee with an interest. ^^ § 522. Master not Liable where Servant Abandons the Master's Duty to Effect Some Purpose of his Own. — Where the master assumes toward any person a particular duty by contract, or where the master stands under a particular duty toward any person by operation of law, if the master commits the performance of that duty to a servant, then the master will be liable to the person concerned with its perform- ance, for its non-performance, although its non-performance arises from the act of the servant in abandoning his master's duty to effect "Eaton V. Lancaster, 79 Me. 477; ^ Ryan v. John O'Brien Boiler s. c. 4 N. Eng. Rep. 772; 10 Atl. Works, 68 Mo. App. 148. The same Rep. 449. rule has been predicated of one who -° Gunderson v. Northwestern Ele- is specially called in by thej vator Co., 47 Minn. 161 ; s. c. 49 agent of another to assist him in his N. W. Rep. 694. work: Empire Laundry Machinery ^ Colvin v. Peabody, 155 Mass. Co. v. Brady, 60 111. App. 379. 104; s. c. 29 N. E. Rep. 59. 485 1 Thomp. Neg.] doctrine op eespokdeat superior. some purpose of his own. To make this clear, let us suppose the case where a railway company has, by contract, assumed the duty of carry- ing a passenger safely from one place to another on one of its trains. It has committed the performance of this duty to a locomotive en- gineer and to other servants. The engineer abandons the train on the main track, in order to effect some purpose of his own, and in conse- quence of this act the train is brought into collision with an approach- ing train, and the passenger is injured. Under such circumstances no lawyer would ask a court to decide the question whether or not the railway company should stand responsible for the act of its en- gineer.^^ Proceeding upon this line of thought, and throwing into contrast the case where the servant commits a tort upon a third per- son wholly outside the sphere of his employment, and the case where, in committing the same tort, he abandons his employment and there- by renders his master liable, the ease was supposed^* where a railway servant, with others under his control, while employed with a con- struction train, repairing the track of the railway company, quits his employment with his men and goes off on affairs of his own. Whilst thus out of the employment of the companj^, he builds a fire and negli- gently fails to guard it, so that it consumes the property of a third person. In the meantime the train which he has thus abandoned on the track is run into by another train. Here the company will not be liable to the third person for the damage which he has suffered from the fire, because the setting of the fire was an act done by his servant wholly outside the scope of his employment. ^^ But the railway com- pany will be liable to any person who has sustained loss or damage in consequence of the collision, because the duty of so guarding the train as not to injure others was a duty resting upon the railway company, the performance of which it committed to the servant guilty of the negligence. His negligence, under such circumstances, is, therefore, regarded as a failure to perform a duty within the sphere of his em- ployment, in which case the rule of respondeat superior operates to charge his master.^' Upon the same ground, it was held that where a servant, upon an errand for his master, left the master's team un- fastened in the street, without attendance, in order to effect a purpose of the servant himself, the master was liable for an injury happening from such negligence.^' So, where the servants of an ice company, ^^Ante, § 519,- sub-sec. 5. ^Morier v. St. Paul &c. R. Co., 31 =»By Minshall, C. J., in Railway Minn. 351. Co. v. Shields, 47 Ohio St. 387 ; s. c. ''<' Railway Co. v. Shields, 47 Ohio 24 N. E. Rep. 658; 8 L. R. A. 464; St. 387. 23 Ohio L. J. 441; 8 Rail. & Corp. "'Ritchie v. Waller, 63 Conn. 155; L. J. 171; 18 Wash. L. Rep. 577; s. c. 28 Atl. Rep. 29. 31 Cent. L. J. 168. 486 LIABILITY OP PRINCIPAL FOR NEGLIGEXCE OF AGENT. [2d Ed. engaged in carrying ice from one storehouse to another, deviated from the direct road and stopped for a time to dispose of the ice for their ovvn purposes, and starting again to carry ice to the storehouse, a cake fell from the wagon, injuring a person on the street — it was held that the ice company was liable for this injury. ^^ So, a teamster em- ployed by a tradesman, in starting out to finish his work after going to his home for a meal, is deemed to be in the performance of his duties to his employer so as to render the employer liable for injuries happen- ing through his negligence, as fully as if he had returned to the store of his employer and made a fresh start.^® § 523. Liability of Master where Servant, in Effecting Some Pur- pose of his Own, Pails to Guard Dangerous Agencies Committed to his Care.^ — Every person who employs highly dangerous agencies upon his premises or about his business stands under the obligation of exer- cising, to the end that third persons shall not be injured through those agencies, a degree of care proportionate to the danger of such in- jury.^" This has been characterized as a very high degree of care, and in some cases, according to one view, the person employing the agency is liable as an insurer.^^ If a person employing such an agency commits the custody of it to his servant, he thereby commits to the servant the obligation to discharge his own duty of caring for it so that it will not injure third persons. If, while so charged with this duty, the servant negligently abandons the custody of it, so that a third person is injured in consequence of this negligence, the master will be liable ; and it will make no difference at all with his liability, whether, in so abandoning the duty, the servant did so for the purpose of effecting some purpose of his own, or in furtherance of the business of his master. In either case the master has committed to the servant the discharge of a duty which the law has imposed upon the master for the safety of third persons, and the servant has abandoned that duty ; and this is enough to render the master liable, without any re- gard to the motive of the servant. This may be illustrated by the case where a railway company furnished its servants with dynamite cart- ^' Geraty v. National Ice Co., 16 trainer, in so ordering the jockey to App. Div. 174; s. c. 44 N. Y. Supp. ride the horse of a third person, 659. was acting outside of the scope of ^Merritt v. Hepenstal, 25 Can. his employment: Ray v. Keene, 19 S. C. 150. There is a decision to the App. Div. 147; s. c. 45 N. Y. Supp. effect that the owner of race horses, 836. who employs a trainer, is not liable a This section is cited in §§ 532, for an injury to a jockey employed 589. by the trainer, who was compelled '^ Ante, § 25. by the trainer to ride the horse of ^Post, § 695, et seq; § 727, et seq.; a third person, which horse threw § 759, et seq.; § 796, et seq. him off and injured him; since the 487 1 Thomp. Neg.] doctrine of respondeat superior. ridges to be placed upon the track for the purpose of alarming trains approaching other trains in times of fog, darkness, storm, etc., in which the ordinary signals can not be seen. The servants of the com- pany playfully placed some of them on the track, in order to frighten some ladies with whom they were acquainted, and one of them was left there, -and was picked up by a child, who carried it some distance, and then caused it to explode, injuring another child. It was held that the railway company was liable to pay damages. The railway company was under the duty of keeping the dangerous agents care- fully guarded: it committed this duty to its servants. It was not merely their duty to use them, but also to guard them, and for the failure of this duty the master was liable, on the footing of its being negligence within the scope of the employment of the servants.^ ^ § 524. Rule where Master Knows of Habitual Misconduct on Part of Servant and Neglects to Prevent it. — It seems also that, if the mas- ter knows that his servants are guilty of a certain kind of habitual misconduct dangerous to others who la.wfully frequent the master's premises, it will be his duty to exercise reasonable care to prevent such misconduct, — failing in which he will be liable to any one. injured thereby. When, therefore, the proprietor of a store knew, or might, by the exercise of a reasonable supervision of his business, have known that the cash boys there employed by him had been for months in the habit of snapping pins at objects and persons in the store, and neg- lected to prevent such misconduct, it was held that he was liable to the customer who lost an eye in consequence of a pin being snapped at her by one of his cash boys.^^ § 525. Master not Liable where Servant Acts Outside of the Scope of his Employment and Authority.'' — The rule, moreover, implies that the master will not in any case be liable for wrongs committed by the servant while not acting about the master's business ; or, what is sub- stantially the same thing, while not acting within the scope of his authority.^* This rule is so reasonable thait the grounds on which it «= Railway Co. v. Shields, 47 Ohio McManus v. Crickett, 1 East 106; St. 387; s. c. 24 N. E. Rep. 658; 8 L. s. c. 2 Thomp. Neg., 1st ed., p. 865; R. A. 464; 23 Ohio L. J. 171; 18 "Wright v. Wilcox, 19 Wend. (N. Y.) Wash. L. Rep. 577; 31 Cent. L. J. 343; Douglass v. Stephens, 18 Mo. 168; 8 Rail. & Corp. L. J. 441. 362; McClenagan v. Brock, 5 Rich. ^Swinarton v. Le Boutillier, 7 L. (S. C.) 17; Mali v. Lord, 39 N. Y. Misc. (N. Y.) 639; s. c. 58 N. Y. St. 381; McKenzie v. McLeod, 10 Bing. Rep. 345; 28 N. Y. Supp. 53; 31 385; Snyder v. Hannibal &c. R. Co., Abb. N. Cas. 281; 1 Toledo Leg. 60 Mo. 413; Hudson v. Missouri &c. News 105; s. c. aff'd 148 N. Y. 752. R. Co., 16 Kan. 470; Lamb v. Lady a This section is cited in § 633. Palk, 9 Car. & P. 629; Haack v. "Middleton V. Fowler, 1 Salk. 282; Fearing, 5 Robt. (N. Y.) 528; s. c. 488 LIABILITY OP PRINCIPAL FOK NEGLIGENCE OP AGENT. [2d Ed. rests need scarcely be suggested. In all the affairs of life, men are constantly obliged to act by others ; but no one could venture so to act, if the mere circumstance that he employed another to act for him about any general or particular business made him an insurer against all wrongs which such person might possibly commit during the period of such employment. The law does not even put a father under such an onerous responsibility in respects of the torts of his minor child,^^ nor was the master so answerable for his slave ;^* although, upon grounds of public policy, a husband is, at common law, liable civiliter for the torts of his wife, and will not be heard to deny that she acted under his coercion when the act was done in his presence.^' But in other cases, where the relation of master and servant subsists by virtue of contract, and "the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master can not be said to do it by his servant,"^ ^ and the maxim. Qui facit per alium, facit per se, does not apply.^* In other words, if the servant steps aside from his master's business, for how short a time soever, to commit a wrong not connected with such business, the relation of mas- ter and servant will be deemed to have been for the time suspended; the act will be treated as the personal act of the servant, and he alone will be responsible for it. § 526. Test by which to Determine Whether Servant Acts within the Scope of his Employment. — The test by which to determine whether the master is liable for the tortious act of his servant, is not 35 How. Pr. (N. Y.) 459; Wilson cage &c. R. Co., 41 Iowa 358; Hig- V. Peverly, 2 N. H. 548; McCoy v. gins v. Chesapeake &c. Canal Co., McKowen, 26 Miss. 487; Cavanagh 3 Harr. (Del.) 411; Reilly v. Han- v. Dinsmore, 12 Hun (N. Y.) 465; nibal &c. R. Co., 94 Mo. 600; s. c. Cousins V. Hannibal &c. R. Co., 66 13 West. Rep. 658; 7 S. W. Rep. Mo. 572; 6 Cent. L. J. 294; Mitchell 407; Pinkerton v. Gilbert, 22 111. V. Crassweller, 13 C. B. 236; 17 Jur. App. 568; Sawyer v. Martins, 25 111. 716; 22 L. J. (C. P.) 100; Cantrell App. 521; Meehan v. Morewood, 52 V. Colwell, 3 Head (Tenn.) 471; Hun (N. Y.) 566; s. c. affd 126 N. Bard v. Yohn, 26 Pa. St. 482; Camp- Y. 667; 23 N. Y. St. Rep. 487; 5 N. Y. bell V. Providence, 9 R. I. 262; Supp. 710; Farber v. Missouri &c. Storey v. Ashton, L. R. 4 Q. B. 476; R. Co., 32 Mo. App. 378. s. c. 38 L. J. (Q. B.) 223; 17 Week. =°Cooley on Torts, 533; Yates v. Rep. 727; 10 Best & S. 337; Rayner Squires, 19 Iowa 26. V. Mitchell, 2 C. P. Div. 357; Sleath ""Wright v. Weatherly, 7 Yerg. V. Wilson, 9 Car. & P. 607; s. c. sm6 (Tenn.) 367. norm. Heath v. Wilson, 2 Moo. & R. " Cooley on Torts, 531; Schouler's 181; Joel V. Morrison, 6 Car. & P. Dom. Rel., 102. 501; Goodman v. Kennell, 1 Car. & "'Maule, J., in Mitchell v. Crass- P. 167; s. c. 1 Moo. & P. 241; Patten weller, 13 C. B. 236; 17 Jur. 716; v. Rea, 2 C. B. (N. S.) 606; s. o. 22 L. J. (C. P.) 100. 3 Jur. (N. S.) 892; 26 L. J. (C. P.) /» Towanda Coal Co. v. Heeman, 235; Lyons v. Martin, 8 Ad. & B. 86 Pa. St. 418; Higgins v. Chesa- 512; s. c. 3 Nev. & P. 509; Yates v. peake &c. Canal Co., 3 Harr. (Del.) Squiree, 19 Iowa 26; Porter v. Chi- 411. 489 1 Thomp. Neg.] doctrine of respondeat superior. whether it was done during the existence of the employment, that is to say, during the time covered by the employment, but whether it was done in the prosecution of the master's business.*" Upon this subject it has been said: "In determining whether a particular act is done in the course of the servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time when the injury was inflicted, acting for himself and as his own master pro tempore, the master is not liable. If the servant step aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously ex- pressed, is the uniform doctrine laid down by all authorities."*^ § 527. What Acts Not Deemed Within the Scope of the Employ- ment of Agents and Servants under Various Circumstances. — With- out attempting, for want of space, to analyze various eases now re- ferred to, it may be said that the following acts done by servants have been held, under the circumstances disclosed by the evidence, to have been done outside of the scope of their employment, so as not to ren- der the master liable for the consequences: — The act of a railway baggageman in throwing certain mechanical tools from a car, injuring the person to whom they were sent, where they were carried merely for the purpose of accommodating the ticket agent without the kuowl- edge or consent of any superior officer of the company;*^ the act of the porter of a palace car in throwing from the window of the car a bundle of his own soiled clothing solely for his own convenience, whereby a person, not a passenger, was injured ;*^ the placing of a torpedo upon a railway track by the station agent for his own amusement, and not for the purpose of signaling a train, whereby a third person was in- " Davis V. Houglitelin, 33 Neb. 582, the invitation, and while there was 586; s. c. 14 L. R. A. 737; 50 N. W. hurt by an explosion of a barrel. Rep. 765. It was held that the employer was " Morier v. St. Paul &c. R. Co., not liable, since, although the invi- 31 Minn. 351, opinion by Mitchell, tation by the employe was given at J.; quoted with approval in Davis a time when he was actually en- V. Houghtelin, 33 Neb. 582, 586. In gaged in the service of his employer, support of the text, let us suppose yet the invitation did not pertain to a case where an employer in a brew- the duties of the employment. Hart- ery invited a third person to go to man v. Muehlebach, 64 Mo. App. a place where barrels were being 565; s. c. 2 Mo. App. Rep. 956. "pitched." The invitation was good *^ Walker v. Hannibal &c. R. Co., while the employe was actually en- 121 Mo. 575; s. c. 26 S. W. Rep. 360; gaged in the performance of the 24 L. R. A. 363. service which he was employed to " Walton v. New York &c. Car Co., render. The third person accepted 139 Mass. 556. 490 LIABILITY OF PRINCIPAL FOR NEGLIGENCE OF AGENT, [2d Ed. jured;** the act of an employe of a company in charge of a gravel train, in inviting a young child to mount the train, in the act of doing which the child falls under a moving freight train ;*^ the act of the master and keeper of a barge, which is laid up for the winter season, in inviting a person on board to inspect the vessel, at the same time failing to inform him of an open hatchway into which he fell and was injured, contrary to his instructions, which were not to allow any per- sons on board without a written order from the president of the com- pany ;*° the act of the employes of a railroad company in allowing a child to ride upon a hand car, furnished by the company for the exclu- sive use of its employes, in consequence of which the child is killed or injured;*' the act of the servant of a stable-keeper, with whom the plaintiff's horse had been entrusted to be boarded, in riding the horse at an immoderate rate of speed, where the plaintiff himself forbade the stable-keeper to allow any one to take the horse out, but personally authorized the particular servant to take it out to be exercised, — the theory being that in so taking the horse out the servant was the servant of the owner of the horse and not the servant of the stable- keeper ;*i the act of an employe of the owner of a building in directing one who nad intruded upon the premises to go into a certain dark room to deliver a message in consequence of which the intruder fell into an opening, the employe having no express or implied authority to give such a direction ;*^|the act of a driver of a street car in slap- ping with his reins a boy wno is running along the street opposite and near to a car platform j"" the act of a railway engineer in wantonly and intentionally backing his engine toward a street car which was cross- ing the railroad track, for the mere purpose of frightening the passen- gers therein, without colliding therewith, — in consequence of which a passenger became frightened and jumped from the car and was in- jured;'^ the act of the engineer of a foundry to whom the refuse ashes were given on condition of his removing them after working hours, in "Smith V. New York &c. R. Co., "Gulf &c. R. Co. v. Dawkins, 77 78 Hun (N. Y.) 524; s. c. 29 N. Y. Tex. 228; s. c. 13 S. W. Rep. 982; Supp. 540; 61 N. Y. St. Rep. 235. Dawkins v. Gulf &c. R. Co., 77 Tex. "Keating v. Michigan &c. R. Co., 232; s. c. 13 S. W. Rep. 984. 97 Mich. 154; s. c. 56 N. W. Rep. -'Adams v. Cost, 62 Md. 264; s. c. 346. 50 Am. Rep. 211. "Caniff V. Blanchard Nav. Co., 66 "Lackat &c. v. Lutz, 94 Ky. 287; Mich. 638; s. c. 10 West. Rep. 529; s. c. 15 Ky. L. Rep. 75; 22 S. W. 33 N. W. Rep. 744. The decision Rep. 218. proceeded on the ground that the ™ Chicago City R. Co. v. Mogk, shipowner owed no duty to any one 44 111. App. 17. to keep the hatches of its ship closed " Stephenson v. Southern &c. R. while it was laid up in the winter, Co., 93 Cal. 558; s. c. 15 L. R. A. 475; and that the plaintiff, an experi- 29 Pac. Rep. 234. enced sailor, was guilty of contrib- utory negligence. 491 1 Thomp. Neg.] doctrine of respondeat superior. depositing them, to the knowledge of his employers, in an unencksed lot opposite the foundry, owned by third persons, whose permission he had obtained, — in consequence of which a young child running across the lot fell into a mass of hot ashes and was burned j^" for the negligent escape of fire built on the right of way of a railroad company by a party of its section hands for the purpose of cooking their dinners ;"' (the act of the employes of contractors for the removal of a dwelling, m constructing steps for the accommodation and at the request of the tenant occupying it, but without the knowledge of the eontractors,4- the contractors not being liable for their negligence in building the steps ;°* the act of a son, who is the hired man of his father, in un- securely fastening a horse belonging to the father, which the son has taken without the knowledge of the father to be used for a purpose not connected with the father's business ;°' the act of the engineer and pilot of a steamer in operating an aerial railway owned by the owner of the steamer, — the theory being that no authority in the engineer and pilot to leave the steamer in which they were employed and to undertake the operating of the railway, could be implied from the nature of their employment.''® § 528. Purther of Acts Not Deemed within the Scope of the Em- ployment of Agents and Servants. — In addition to those stated in the preceding paragraph, the following acts have been deemed to be with- out the employment of the agent or servant, so as to make the prin- cipal or master liable for an injury resulting to a third person : — The act of the driver of a dump cart in inviting a boy nine years old to ride upon the cart, or to drive the horse f \h.e act of a foreman employed by a contractor, in building a brick and mortar foundation for a printing press in a building, in ordering his men to assist in unloading rolls of paper from a van, which had been brought to the building to be used in printing, and the act of the men working under the fore- "^ Burke v. Shaw, 59 Miss. 443; the master Is fired by his servant, s. c. 42 Am. St. Rep. 370. Compare but without the master's knowledge, Voegell V. Pickel &c. Co., 49 Mo. and neighboring property is thereby App. 643, on somewhat similar facts, injured, — no negligence being im- =" Morier v. St. Paul &c. R. Co., putable to the master in the selec- 31 Minn. 351; s. c. 47 Am. Rep. 793. tion of his servant. Boyd v. Rice, That neither the master nor the 38 Mich. 599. It was conceded that servant is liable, within the meaning the servant might be liable at com- of a statute making it a misde- mon law. meanor for any one to set fire =* Dells v. Stollenwerk, 78 Wis. to "woods, prairies, or grounds 339; s. c. 47 N. W. Rep. 431. not on his own property;" or '== Way v. Powers, 57 Vt. 135. negligently to allow fire to pass '"Biederman v. Brown, 49 111. App. from his own premises to the 483. injury of the property of an- ^'Driscoll v. Scanlon, 165 Mass. other, where stubble on the land of 348; s. c. 43 N. E. Rep. 100. 492 LIABILITY OF PKINCIPAL FOR NEGLIGENCE OP AGENT. [2d Ed. man in attempting so to assist^ without any request from the driver of the van ;^*) the act of the proprietor of an elevator in a hotel, in- tended for the accommodation of guests, in taking a carpenter up in the elevator to the place of his work on the roof of the hotel, in which operation the carpenter was injured, — a decision seemingly unten- able ;°° the act of one employed to collect the purchase-money of sew- ing machines, sold on the installment plan, in seizing and carrying away a machine on the failure of the purchaser to pay an install- ment.^" § 529. liability of Master for Selecting Incompeient or Improper Servants.^ — It is obvious, on principle, that if the master owes a duty to any one, whether he has assumed it by contract or whether- it has been imposed upon him by operation of law, and if he chooses to un- dertake the discharge of that duty through the agency of another, he is bound to exercise reasonable care in the selection of a competent and proper agent through whom to discharge it and is answerable if, through negligence, he has failed in making a proper selection where- by there has been a failure of the duty to the injury of such other person. Although this proposition has been doubted,®^ there can not be any doubt upon it on principle.*^ It will be seen hereafter,^^ that the principle is constantly applied in respect of the duty of a master to exercise reasonable care in the selection of competent, sober and careful servants, to the end of promoting the safety of other servants in his employ. The principle has been also applied with the conclu- sion that a railway company may become responsible for a homicide committed by its station agent while in a fit of insanity, if the com- pany employed the agent and assigned him to duty with knowledge of his insane condition or of his being subject to sudden fits of insanity.^* "'Brown v. Jarvis Engineering place a broken pane, in attempting Co., 166 Mass. 75; s. c. 32 L. R. A. to remove the gas pipes, the contract 605; 4 Am. & Eng. Corp. Cas. (N. S.) of insurance requiring the assured 536; 43 N. E. Rep. 1118. to remove such pipes at his own ex- "° Jossaers v. Wallt er, 14 App. Div. pense, — a seemingly untenable de- 303; s. c. 43 N. Y. Supp. 891. cision: McCauley v. Fidelity &c. Co., •"Feneran v. Singer Man. Co., 20 16 Misc. (N. Y.) 574; s. c. 39 N. Y. App. Div. 574; s. c. 47 N. Y. Supp. Supp. 773. 284. A station agent of a railroad a This section is cited in § 612. company, acting as agent of another °^ Oakland City &c. Soc. v. Bing- company also, not within the scope ham, 4 Ind. App. 545; s. c. 31 N. E. of his employment in using a hand Rep. 383. car on the road of the latter com- "^ See Boyd v. Rice, 38 Mich. 599, pany, carrying passengers, &c., and 601, where the principle is impliedly dividing receipts among persons as- conceded. And so in Williams v. sisting him to run the same: East- Palace Car. Co., 40 La. An. 87. ern K. R. Co. v. Powell, 33 S. W. '' In a future volume, title Master Rep. 629; s. c. 17 Ky. L. Rep. 1051 and Servant. (not to be rep.). Insurance company, " Christian v. Columbia &c. R. Co., insuring plate glass, not liable for 79 Ga. 460; s. c. 7 S. E. Rep. 216. the action of its workman sent to re- 493 1 Thomp. Neg.j doctrine of respondeat superior. § 530. Acting Without Orders or Against Orders.* — Such being the nature of the master's liability, it is immaterial that the servant pro- ceeded without orders touching the particular act;"' and the master ■vvdll be liable if the act of the servant was within the general scope or sphere of his employment, even where the servant acted contrary to the master's express orders."" A frequently recurring expression of this doctrine is that when the employe or servant, while engaged in the prosecution of the master's business, deviates from his instructions as to the manner of doing it, this does not relieve the master from lia- bility for his acts."^ This must necessarily be so. Otherwise the master might claim exemption from liability for his servant's negli- gence in nearly every case. It would only be necessary to instruct him to proceed with care, and if he did not do so, the master would not be liable, for it would be an act done against his express orders."' Ac- cordingly it has been held that the owner of works, carried on for his profit by agents, is liable to be indicted for a public nuisance caused a This section is cited in §§ 519, 589, 977. ""Leviness v. Post, 6 Daly (N. Y.) 321; Page v. Defrles, 7 Best & S. 137 (overruling Lamb v. Lady Palk, 9 Car. & P. 621); Pittsburgh &c. R. Co. v. Kirk, 102 Ind. 399; s. c. 52 Am. Rep. 675; Hickey v. Merchants' &c. Transp. Co., 152 Mass. 39; s. c 24 N. B. Rep. 860; Meade v. Chicago &c. R. Co., 68 Mo. App. 92. " Garretzen v. Duenckel, 50 Mo. 104; Limpus v. London &c. Omnibus Co., 1 Hurl. & Colt. 526; s. c. 32 L. J. (Bxch.) 34; Southwick v. Bstes, 7 Cush. (Mass.) 385; Toledo &c. R. Co. v. Harmon, 47 111. 298; Philadel- phia &c. R. Co. V. Derby, 14 How. (IT. S.) 568; Duggins v. Watson, 15 Ark. 118; Higgins v. Watervliet &c. R. Co., 46 N. Y. 23; Powell v. De- veney, 3 Cush. (Mass.) 304; Paul- mier v. Erie R. Co., 34 N. J. L. 151. See Haack v. Fearing, 5 Robt. (N. Y.) 528; s. c. 35 How. Pr. (N. Y.) 459; Whatman v. Pearson, L. R. 3 C. P. 422 ; Schmidt v. Adams, 18 Mo. App. 432; Cosgrove v. Ogden, 49 N. Y. 255; Singer Man. Co. v. Rahn, 132 U. S. 518; 33 L. ed. 440; 10 Sup. Ct. Rep. 175; Ellegard v. Ackland, 43 Minn. 352; s. c. 45 N. W. Rep. 715; Cook v. Houston Direct Nav. Co., 76 Tex. 353; s. c. 13 S. W. Rep. 475; McClung v. Dearborne, 134 Pa. St. 396; s. c. 19 Atl. Rep. 698; 8 L. R. A. 204; 47 Phila. Leg. Int. 376; 26 W. N. C. (Pa.) 42; Consolidated Ice Machine Co. v. Keifer, 134 111. 481; s. c. 10 L. R. A. 696; 25 N. E. Rep. 799; Atchison &c. R. Co. v. Randall, 40 Kan. 421; s. c. 19 Pac. Rep. 783; Gregory v. Ohio River R. Co., 37 W. Va. 606; s. c. 16 S. B. Rep. 819; Railway Company v. Hackett, 58 Ark. 381; s. c. 24 S. W. Rep. 881; Haehl v. Wabash R. Co., 119 Mo. 325; s. c. 24 S. W. Rep. 737; Clark v. Koehler, 46 Hun (N. Y.) 536; s. c. 12 N. Y. St. Rep. 573; Dris- coll V. Carlin, 50 N. J. L. 28; s. c. 11 Atl. Rep. 482; Engel v. Smith, 82 Mich. 1; s. c. 46 N. W. Rep. 21; Heenrich v. Pullman Pal. Car Co., 20 Fed. Rep. 100; Montgomery v. Sartirano, 16 App. Div. 95; s. c. 44 N. Y. Supp. 1066 (porter of lodging house keeper using unnecessary force in ejecting an intruder) ; Mc- Cauley v. HutkofE, 20 Misc. 97; s. c. 45 N. Y. Supp. 85 ; Lewis v. Schultz, 98 Iowa 341; s. c. 67 N. W. Rep. 266; Meade v. Chicago &c. R. Co., 68 Mo. App. 92; MoCann v. Consolidated Tracfion Co., 59 N. J. L. 481; s. c. 38 L. R. A. 236; 7 Am. & Eng. Rail. Cas. (N. S.) 280; 36 Atl. Rep. 888 (although the act was not neces- sary for the proper performance of the servant's duty to his master, or was even contrary to the master's orders). "Atchison &c. R. Co. v. Randall, 40 Kan. 421; s. c. 19 Pac. Rep. 783. " Powell V. Deveney, 3 Cush. (Mass.) 300. 494 LIABILITY OF PRINCIPAL FOR NEGLIGENCE OP AGENT. [2d Ed. by the acts of his workmen in carrying on the works, although they acted without his knowledge, and contrary to his general orders. ®® § 531. What if the Person Injured Knows that the Servant is Act- ing Contrary to Orders. — But this principle manifestly has no appli- cation where the act done by the servant against his master's orders, which has inflicted the injury, is done with the concurrence of the per- son injured, he knowing that the servant is acting contrary to his orders.'" In such a case the person receiving the injury acts in fraud of the rights of the master when he concurs with the servant in vio- lating his orders, and this fact alone ought to preclude him from re- covering damages against the master. But he is precluded from so recovering upon the further ground that the servant in doing an act at his request contrary to his own orders becomes pro hac vice his own servant and not the servant of his general master.'^ But the converse proposition does not follow that the mere lack of knowledge on the part of the person injured that the servant is violating the orders of his master will give the person injured a right of action against the master : the question will still remain whether the servant was acting within the line of his authority, or outside of it to accomplish some purpose of his own, and upon this question the burden of proof will be upon the plaintiff.'^ § 532. Eule where the Master Commits to the Servant Certain Absolute Duties which the Master Owes to Others. — Where the mas- ter commits to one of his servants or to an independent contractor, or to an agent or undertaker of work, selected by the master, the per- formance of any absolute duty which the master owes to his own servants or to others, whether that duty is assumed by contract or arises by operation of law, — the master makes such person his alter ego or vice-principal, and becomes responsible for his failure to perform "Regina v. Stephens, L. R. 1 Q. '"Snider v. Crawford, 47 Mo. B. 701; Rex v. Medley, 6 Car. & App. 8. P. 292. The principle which has been "Adams v. Cost, 62 Md. 264; cited extracted from the holding ot a sub- with approval in Snider v. Craw- ordinate court in Illinois that a rail- ford, 47 Mo. App. 8, 13. road company is not liable in tres- "Gulf &o. R. Co. v. Dawkins, 77 pass for the wrongful acts of one of Tex. 228; s. c. 13 S. W. Rep. 982; its employes, unless done in pursu- Dawltins v. Gulf &c. R. Co., 77 Tex. ance of its orders, or in a manner 232; s. c. 13 S. W. Rep. 984. Non- necessarily following its order (Chi- liability of a building contractor, cago &c. R. Co. V. Randolph, 65 III. who is to furnish all the materials App. 208), can only be justified on for a building, for materials fur- the theory that it turns upon a ques- nished by the owner to an employ^ tion of common law pleading, though of the contractor after the contract- the case seems to have been rightly or has warned the owner not to do decided on its merits. so: Lee v. Walker, 25 Fla. 149; s. c. 6 South. Rep. 57. 495 1 Thomp. Neg.] doctrine op respondeat superior. that duty, wholly without reference to the motive from which such failure may have resulted, and wholly without reference to the ques- tion whether in so failing the person to whom the duty has been com- mitted was acting within the scope of his agency or outside of it. Thus, if a common carrier of passengers commits to his servants, in charge of his vessel or railway train, the duty of conveying a passen- ger safely from one place to another, and while the .passenger is thus, in a sense, in the custody of the servant of the carrier, on board the carrier's vessel, one of the carrier's servants commits an assault upon him, the carrier will be liable, although the assault was wanton, malicious and not done by the servant for the purpose of discharging his duty toward his master, but was done by him solely for the pur- pose of wreaking his own private malice or accomplishing some other purpose of his own.'^ So> a master who employs dangerous agencies upon his premises, or in the prosecution of his business, and commits such agencies to his servants, thereby commits to them his own obli- gation of using care in respect of them to the end that third persons be not injured by them, and he is responsible for the negligence of his servants in discharging this obligation, although they may have been guilty of the act of negligence, for the sole purpose of accomplishing some object of their own outside the scope of their employment.'* So, the owner of fixed property, who stands, by operation of law, under certain duties to others in respect of the care of it, can not shift that duty upon an independent contractor so as to escape liability for a failure to perform it.'° So, if the owner of real property keeps a dangerous pitfall on his premises, such as a coal-hole in his sidewalk, he stands under an obligation toward the public of keeping it secure so that passers-by will not fall into it ; and his liability is exactly the sanle whether he undertakes to discharge this obligation in person or commits it to an agent.'^ So, a man must not suffer a nuisance to exist on his property^ although it is the act of a stranger. It follows that if his servant do an act about his real property which amounts to a nuisance, he must answer for it, although the act may ha;ve been of such a quality as to be deemed the servant's personal act, and not his.'' For instance, if the employes of a railway company whose duty it is to remove from the railway track the carcass of an animal killed there, "Discussed in the title Carriers B. 701; 35 L. J. (Mag. Cas.) 251; of Passengers in a future, volume. 14 "Week. Rep. 859; 14 L. T. (N. S.) ■"Ante, § 523. 593; 7 Best & S. 710. See Harlow "Post, § 665. V. Humlston, 6 Cow. (N. Y.) 189; "Stevenson v. Joy, 152 Mass. 45; Bobbins v. Mount, 4 Robt. (N. Y.) B. c. 25 N. E. Rep. 78. 553; Pickard v. Smith, 10 C. B. (N. "Simons v. Monier, 29 Barb. (N. S.) 470; Whiteley v. Pepper, 2 Q. Y.) 419; Althorf v. Wolfe, 22 N. Y. B. Div. 276. 355; Regina v. Stevens, L. R. 1 Q. 496 MABILITY OF PRINCIPAL FOR NEGLIGENCE OF AGENT. [2d Ed. remove it to a place where it creates a nuisance, the railway company will be answerable to any one who sustains special damages thereby, as where they remove it to a place on the highway so that it frightens the horses of a traveller.''^ The liability of the company in such a case may also be placed on the doctrine of respondeat superior, for the duty on the part of the servants in removing it includes, by implica- tion, the duty of making a proper disposition of it.''^ § 533. Further of Cases where Master has an Absolute Duty to Perform.^ — So where the master has to perform the absolute duty of exercising personal care for the protection of his servants, to the end that the machinery and appliances furnished by him, to be used by them, are reasonably safe for the purpose intended,*" he obviously can not escape liability in case of the non-performance of this duty, by showing that the servant whom he directed to perform it dis- obeyed his orders, and that such disobedience was the cause of the in- jury; since in every such case it is his duty to see that his orders are obeyed. And it makes no difference for the operation of this rule by what grade of servant the master acts or whether he acts by means of an independent contractor.*^ Take, for example, a case where the servants of a railroad company, in operating its trains, carried with them certain signal torpedoes, being small cartridges of dynamite, used to place upon the track in front of an approaching train to alarm it in cases where fog, storm or other circumstances prevented those in charge of it from seeing some danger ahead of it. These servants, out of mere mischief, placed some of these torpedoes on the track at a watering place and left them there, and afterwards some children found them, exploded one of them, and injured the plaintiff. It was held that the railroad company must pay damages. The court pro- ceeded upon the aisolute duty of the railroad company to exercise rea- sonable care through its servants to the end of guarding dangerous agencies committed to them.*^ § 534. Some Illustrations of the Foregoing Doctrines. — The en- gineer in charge of a locomotive engine turned the engine over to the "Baxter v. Chicago &c. R. Co., 87 N. Y. St. Rep. 528; 24 N. Y. Supp. Iowa 488; s. c. 54 N. W. Rep. 350. 977. "Voegell V. Pickel Marble Co., 49 a This section is cited in § 663. Mo. App. 643. It was so held where " See title Master and Servant in the employes of a railroad company a future volume, removed certain weather-beaten tim- ^ Consolidated Ice Machine Co. v. bers from its premises and placed Keifer, 134 111. 481; s. c. 10 L. R. A. them on a highway where the horse 696; 25 N. E. Rep. 799. of a traveller was frightened by *^ Harriman v. Pittsburgh &c. R. them: Tinker v. New York &c. R. Co., 45 Ohio St. 11; s. c. 9 West. Co., 71 Hun (N. Y.) 431; s. c. 54 Rep. 448; 12 N. E. Rep. 451. VOL. ] THOMP. NFO — ".2 497 1 Thomp. Neg.J doctrine of kespondeat superior. fireman at a place where the railway track rested upon the street of a town, and gave the fireman instructions to "watch her." While the fireman was "watching her" he discharged steam from the engine which frightened the horse of the plaintiff, causing him injury. In an action for damages against the railroad company, it was held that the company was liable if the fireman, while so in charge, discharged the steam negligently and in disregard of persons passing along the street.*' If a master sends his servant to do an act where the exer- tion of force may he required to accomplish the object and where the act is liable to excite resistance, the master will be liable for the use of any force by the servant, although in using it he may have violated his express instructions. Thus, where a master, claiming the ownership of an organ in the possession of another, sent his servants to the house where the organ was, to take possession of it, and the servants entered the house and took the organ by force and violence, — it was held that the master was liable for the trespass, although in using force the serv- ants have violated their express instructions.** A toll-road company appointed a gate-keeper and placed him in sole charge of its toll-house at all times, and he was the only officer of the company having control of such toll-gate. His instructions were to collect toll until nine o'clock p. M. and not later. The plaintiff was riding along the toll road after nine o'clock p. M., and the toll-keeper, as the plaintiff's vehicle was passing the gate, let the beam down and inflicted an injury upon him. It was held that the company was liable.' 85 § 535. Other Conclusions Resulting from the Foregoing Doc- trines. — A number of conclusions resulting from the foregoing prin- ciples may here be grouped together. The fact that the servant was personally liable to damages under a statute which he was at the time violating will not render his master the less liable at common law,*" though, if the action is brought upon the statute, the master will not be liable,*' — as, where the defendant's servant, by driving his master's carriage on the wrong side of the road, contrary to the commands of a statute, collided with the plaintiff's carriage, causing damage.** In those cases where knowledge is essential to charge a person for negli- gence, as in case of keeping a vicious animal, the knowledge of the servant touching the thing committed to him will be imputed to the »= Andrews v. Mason City &c. R. 76 Ind. 142; s. c. 40 Am. St. Rep. Co., 77 Iowa 669; s. c. 42 N. W. Rep. 224. 513. ■« Reynolds v. Hanrahan, 100 ^McCIung V. Dearborne, 134 Pa. Mass. 313. St. 396; s. c. 19 Atl. Rep. 698; 8 L. "Goodhue v. Dix, 2 Gray (Mass.) R. A. 204; 47 Phila. Leg. Int. 376; 181. 26 W. N. C. (Pa.) 42. »» Goodhue v. Dix, supra. «> Noblesville &c. R. Co. v. Cause, 498 LIABILITY OP PKINCIPAL FOR NEGLIGENCE OP AGENT. [2d Ed. master.*^ This is merely an application of the general rule that notice to an agent, of any matter touching his principal's business about which the agent is at the time acting, is notice to the principal.'" It is scarcely necessary to add that if an act of an employe be lawful, and one which he is justified in doing, and which casts no personal re- sponsibility on him, no responsibility attaches to the employer there- for."^ For example, if a railway conductor is compelled to inflict in- jury upon a passenger in his necessary self-defense, the railroad com- pany will not be liable to the passenger."^ The master is accordingly not liable for an error of judgment of his servant in extricating an injured person from a perilous situation. "^ Nor is it at all a material inquiry, in most cases, whether the master was present or absent at the time of the doing of the act, though, of course, it may be ma- terial under particular circumstances. Thus, a contractor who has a gang of men engaged in removing a wall by means of a derrick, who neglect to prop up one of the guy-ropes and thereby injure a passen- ger on the street, is not exempt from liability by reason of his absence when the accident occurred.'* On the other hand, the fact that an employer was present at the time a person was injured by his employe is not material upon the question of the employer's negligence, where there is no allegation that because of his presence he could have pre- vented the injury, except by removing the person from the place ;°° though, in some jurisdictions, the question of contributory negligence can not arise unless it is pleaded and proved as an affirmative defense. An employer can not escape liability to a third person for injuries caused by negligence in doing work, by the fact that he employed a servant to do the work, where he knew or ought to have known that the means employed would be ineffectual."^ In order to hold the em- ployer responsible for the act or omission of his agents, where rights ''Baldwin v. Casella, L. R. 7 ett, 2 Hare 402; Sheldon v. Cox, 2 Exch. 325; s. c. 41 L. J. (Exch.) Eden 224; Sterling Bridge Co. v. 167; 21 Week. Rep. 16; 26 L. T. Baker, 75 111. 139; Wade on Notice, (N. S.) 707; Gladman v. Jolinson, § 672. ' 36 L. J. (C. P.) 153; Applebee v. ""New Orleans &c. R. Co. v. Percy, L. R. 9 C. P. 647; s. c. 30 Jopes„142 U. S. 18; s. c. 12 Sup. Ct. L. T. (N. S.) 785; 43 L. J. (C. P.) Rep. 109; 11 Rail. & Corp. L. J. 41. 365; Jeffrey v. Bigelow, 13 Wend. =' New Orleans &c. R. Co. v. 518. Jopes, 142 V. S. 18. "Aster V. Wells, 4 Wheat. (U. S.) »=Rhing v. Broadway &c. R. Co., 466; Bracken v. Miller, 4 Watts & 53 Hun (N. Y.) 321; s. c. 25 N. Y. S. (Pa.) 102; Reed's Appeal, 34 Pa, St. Rep. 563; 6 N. Y. Supp. 641. St. 207; Mechanics' Bank v. Seton, "Geer v. Darrow, 61 Conn. 226; 1 Pet. (U. S.) 309; Jackson v. s. c. 23 Atl. Rep. 1087. Sharp, 9 Johns. (N. Y.) 162; Jack- •= McCaull v. Bruner, 91 Iowa 214; son v. Winslow, 9 Cow. (N. Y.) 13; s. c. 59 N. W. Rep. 37. Jackson v. Leek, 19 Wend. (N. Y.) "Martin v. Richards, 155 Mass. 339; Bank of United States v. Davis, 381; s. c. 29 N. E. Rep. 591. 2 Hill (N. Y.) 451; Fuller v. Ben- 499 1 Thomp. Neg.J doctrine of respondeat superior. of others are concerned, such act or omission must be satisfactorily proved, and it must also appear that the plaintiff was not guilty of any contributory negligence."'' If a servant of one master is injured by a servant of another master, his right to recover damages against such master will not be affected by any private agreement which may sub- sist between such master and his own master to which he is not a party. °^ § 536. Master Liable for Accidental Death Produced by his Serv- ant. — Outside of the cases referred to in the preceding paragraph lies the great mass of cases where employers have been held liable, un- der statutes giving a right to recover damages for the death of a human being, for a death resulting from the negligence of his servant, or servants, while acting within the scope of their employment. Here, for juridical purposes, the master is identified with the servant, and the negligence of the servant is the negligence of the master, and the rule of respondeat superior is not drawn into special consideration, but the question is whether the servant was guilty of negligence bringing about the death, and whether the deceased was guilty of negligence contributing to his death.'" The right of action for damages result- ing from the death of a person being wholly statutory, the extent of the right must accordingly depend, in each instance, upon the terms of the local statute.^"" § 537. Respondeat Superior in the Relation of Parent and Child.^ — The mere fact that the relation of parent and child exists, does not create the relation of principal and agent, or master and " Stewart v. Philadelphia &c. R. servant should have existed, and Co., 8 Houst. (Del.) 450; s. c. 17 that the servant's wrong should Atl. Rep. 639. have been incidental to or in the "'Robertson v. Boston &c. R. Co., line of his employment, and within 160 Mass. 191; s. c. 35 N. E. Rep. the scope of the authority conferred 775; Sawyer v. Rutland &c. R. Co., upon him, — but also that the em- 27 Vt. 370; Zeigler v. Danbury &c. ployment must have been in the R. Co., 52 Conn. 543; Philadelphia prosecution of a lawful business: &c. R. Co. V. State, 58 Md. 372; Phil- Sagers v. Nuckolls, 3 Colo. App. 95; lips v. Chicago &c. R. Co., 64 Wis. s. c. 32 Pac. Rep. 187, — a decision 475. which seems to the writer a mere " See, for example. Reed v. Mc- aberration. - - Prior to the Cord, 18 App. Div. 381; s. c. 46 N. Texas Act of March 25, 1887, a rail- Y. Supp. 407. road company was not liable for 1°° It has been held, under a stat- injuries resulting in death caused ute of Colorado (Colo. Gen. Stat, by the negligence of its servants, Ch. 27, § 2), that, in order to render unless the negligence was gross: an employer liable for the death of Sabine &c. R. Co. v. Hanks, 73 Tex. a third person caused by the wrong- 323 ; s. o. 11 S. W. Rep. 377 ; Mis- ful act, neglect, or default of his souri &c. R. Co. v. Hall, 71 Tex. employs, it is not only necessary 451; s. c. 9 S. W. Rep. 351. that the relation of master and a This section is cited in § 785. 500 LIABILITY OP PRINOIPAL FOR NEGLIGENCE OF AGENT. [2d Ed, servant, so as to make the father or the mother of a minor, as mere matter of law, responsible for the negligent acts of the minor; but a minor may become the agent or servant of its father or its mother, by contract. It is true that the power of a minor to contract with its parents, or with any one else, is qualified and limited, and is subject to repudiation at his election after attaining his majority. But yet the law seems to recognize such a power to a qualified extent. For instance, in one case, a son was treated as the hired man of his father ; but his negligence in unsecurely fastening a horse belonging to the father, which he had taken without the knowledge of the father to be used for a purpose not connected with the father's business, was held not to make the father answerable for the damage which ensued, — ^not on the ground that the relation of master and servant did not subsist between them, but on the ground that the servant had gone outside the scope of his employment to accomplish a purpose of his own, during which time the relation was suspended.^ "^ On like grounds, another court held that the fact that a father had offered his minor son ten cents apiece for all crows which the son might kill in the father's field, did not make the son the servant of the father so as to render the father liable for an injury caused by the negligence of the son in shoot- ing off a gun while two miles from the field, after spending the day in shooting squirrels.^"^ On the other hand, it has been held that the rule of respondeat superior applies to the acts of children, tempo- rarily left in charge of a farm of their father, in detaining the cattle of another which had entered upon the farm through a partition fence, and in demanding the payment of an impound charge, — such acts having been within the scope of their duty to protect the premises of their parent.^"' Similarly, a father was held liable for the negli- gence of his son in driving the father's team, whereby a third person was injured.^"* A. told his sons, who were also his servants, to drive the cattle of B. out of A.'s lot, but not to drive them with dogs. Nev- ertheless, the sons set the dogs upon them and they were injured. It was held that A. was liable to B. for the injury.^''^ A mother who accepted an invitation to go upon a driving excursion upon the condi- tion, which was acceded to, that she should pay one-half of the cost of the team, was held liable for an injury occasioned by the negligent driving of her daughter, who was an inexperienced and incompetent driver.^"* '" Way V. Powers, 57 Vt. 135. '»= Schmidt v. Adams, 18 Mo. App. ""Winkler v. Fisher, 95 Wis. 355; 432. s. c. 70 N. W. Rep. 477. '"Adams v. Swift, 172 Mass. 521; ""Lamb v. Davidson, 69 Mo. App. s. e. 5 Am. Neg. Rep. 607; 52 N. B. 107. Rep. 1068. '" Jennings v. Schwab, 64 Mo. App. 13; s. c. 2 Mo. App. Rep. 923. 501 1 Thomp. Neg.] doctrine of respondeat superior. § 538. Intervening Negligence of Third Persons. — The subject in- dicated by this caption has already been considered. ^"^ The English Court of Appeal have held that the intervention between the negli- gence of a servant, which constitutes the effective cause of an injury, and the injury, and the negligence of another person, which immedi- ately causes the injury, does not relieve the master from his liability for the negligence of his servant.^"^ In a particular case, the doc- trine was so applied as to hold that an employer is not relieved from liability for an injury to a vehicle vnth which his cart collides, by the act of a boy whose duty it is to deliver parcels sent out to customers by such cart, and not to drive at all, in attempting to turn the cart around, when the driver negligently left the cart without proper at- tendants."» § 539. Liability of the Master by Ratification or Adoption. — One may make himself liable for the unauthorized, unlawful act of an- other by ratification or adoption.^'^" Although it has been said in one case that slight acts of ratification will be sufficient,^ ^'^ yet the better opinion is that there must be some affirmative act, and that a mere omission to act will not have this effect, especially where to act might prejudice the legal rights of the party. Accordingly, a mere failure to discharge the servant, after the happening of the accident com- plained of, will not have this effect.^ ^^ So, the mere fact that a pro- prietor accepts a job of work and pays for it, knowing that the con- tractor, in prosecuting the job, has inflicted an accidental .or negli- gent injury upon a third person, will not make him liable to such third pferson on the ground of a ratification.^ ^^ But, where a coal dealer presented a bill to a customer, for a load of coal which had been delivered by a member of the household of the dealer without his di- rection or knowledge, and claimed that the customer owed him for the coal, — it was held that this was a ratification which had the effect, by relation, of making the officious actor the servant of the dealer, so that the dealer became liable for the breaking of a pane of glass in ^'" Ante, § 61, et seq.; especially bride, 79 Tex. 457; s. c. 15 S. W. § 75. Rep. 495. See, on this subject, the >»«Engelhart v. Farrant (C. A.) very learned opinion of Mr. Justice (1897), 1 Q. B. 240; 66 L. J.'Q. B. Holmes in Dempsey v. Chambers, (N. S.) 122. 154 Mass. 330; s. c. 13 L. R. A. 219; ™Bngelhart v. Farrant (C. A.) 26 Am. St. Rep. 249; 28 N. B. Rep. (1897), 1 Q. B. 240; 66 L. J. Q. B. 279. (N. S.) 122. '"Perkins v. Missouri &c. R. Co., ""McLaughlin v. Pryor, 4 Man. 55 Mo. 201. & Gr. 48 ; International &c. R. Co. "^ Edelmann v. St. Louis Transf . V. McDonald, 75 Tex. 41; s. c. 12 Co., 3 Mo. App. 503. S W. Rep. 860; 42 Am. & Eng. R. "'Coomes v. Houghton, 102 Mass. Cas. 211; Gulf &c. R. Co. v. Kirk- 211, 502 LIABILITY OF PRINCIPAL FOR NEGLIGENCE OF AGENT. [2d Ed. the building of the customer by the officious person in making the de- livery. ^^* The doctrine of this learned decision is "that consistency with the whole course of authority requires us to hold that the de- fendant's ratification of the employment established the relation of master and servant from the beginning, with all its incidents, includ- ing the anomalous liability for his negligent acts."^^' "The ratifica- tion," continues the court, "goes to the relation and establishes it ab initio. The relation existing, the master is answerable for torts which he has not ratified specifically, just as he is for those which he has not commanded, and as he may be for those which he has ex- pressly forbidden."^ ^® § 540. Liability of Master for Servant's Unlawful Discharge of Implied Duties. — The master will be liable to a third person who is injured by an unlawful act committed by the servant in the discharge of any duty which is fairly to be implied from the nature of the serv- ant's employment. A familiar illustration of this rule is found in the case where a conductor of a railway train wrongfully removes there- from a person who has the right to remain thereon as a passenger. The conductor of a train is the master of the train, just as the master of a ship is the sovereign of the deck ; and it is impliedly a part of the duties committed to him to determine who shall and who shall not re- "* Dempsey v. Chambers, 154 Mass. 330; s. c. 13 L. R. A. 219; 26 Am. St. Rep. 249; 28 N. E. Rep. 279. In the very learned opinion delivered by Mr. Justice Holmes, the conclusion of the court was not placed upon any more satisfactory grounds than the general concur- rence of ancient and modern author- ity. The learned Judge, after a very considerable examination of this authority, said, citing the cases which follow: "The language gen- erally used by judges and text writ- ers, and such decisions as we have been able to find, is broad enough to cover a case like the present when ratification is established:" Perley v. Georgetown, 7 Gray (Mass.) 464; Bishop v. Montague, Cro. Bliz. 824; Sanderson v. Baker, 2 Bl. 832; s. c. 3 Wils. 309; Barker v. Braham, 2 Bl. 866, 868; s. c. 3 Wils. 368; Badkln v. Powell, Cowp. 476, 479; Wilson v. Tumman, 6 Man. & G. 236, 242; Lewis v. Reed, 13 Mees. & W. 834; Buron v. Denman, 2 Exch. 167, 188; Bird v. Brown, 4 Exch. 786, 799; Eastern Counties R. Co. V. Broom, 6 Exch. 314, 326, 327; Roe v. Birkenhead &c. R. Co., I 7 Exch. 36, 41; Ancona v. Marks,' 4 Hurl. & N. 686, 695; Condit v. Bal'dwin, 21 N. Y. 219, 225; Exum V. Brister, 35 Miss. 391; Galveston &c. R. Co. V. Donahoe, 56 Tex. 162; Murray v. Lovejoy, 2 Cliff. (U. S.) 191, 195 ; Lovejoy v. Murray, 3 Wall. (U. S.) 1, 9; Story Agency, §§ 455, 456." "° Dempsey v. Chambers, 154 Mass. 330, 334; citing Coomes v. Hough- ton, 102 Mass. 211, 213, 214; Cooley Torts. 128, 129. ""Dempsey v. Chambers, 154 Mass. 330, 334. In an old case cited by the court, in the case jvst con- sidered. It was agreed that, if strang- ers, without any precedent appoint- ment, seize goods under the color of the office of another, and after- wards misuse them, and the per- son, under whose authority they assumed to act, ratifies the seizure, he thereby becomes a trespasser ab initio, although not privy to the mis- using which made him so: Gibson's Case, Lane 90. Stated as law in Com. Dig. Trespass, C. 1. See also Elder v. Bemis, 2 Mete. (Mass.) 599, 605. 503 1 Thomp. Neg.] doctrine of bespondeat superior. main on the train. So, as it is impliedly a part of his duty to expel intruders and trespassers from the train, another implication follows of his right of authority to use the necessary force to effect such an expulsion. But if, in the exercise of this implied authority, he uses excessive force, the railway company is answerable for damages. So, where a servant was entrusted with the duty of seizing certain goods for his master, it was justly held that this impliedly authorized him to use force in ease of resistance; so that if he used excessive force the master was liable.^^' So, where a servant was instructed to re- move rubbish from the manufacturing establishment of his master, and to deposit it upon the street, and there was evidence tending to show that such servant had been in the habit of burning it after so depositing it, it was reasoned that, as the removal of the rubbish, so as not to create a nuisance in the public street, was one of the implied duties resting upon the servant of the defendant who had deposited it there, the fact that he had taken an unlawful and dangerous method of disposing of it by burning it, did not show that he had acted out- side the scope of his employment.^ ^^ Where a servant was employed to do general farm work, on the farm of his master, and, during the absence of his master, a cow, belonging to a neighbor, broke into his master's corn field, and in driving her out the servant struck her with a stone, killing her, — it was held that the master was liable for her value, on the ground that the driving of trespassing cattle from the master's field was impliedly within the scope of the employment of his field hands. The court pointed out that it would be clearly a breach of duty on the part of the servants not to drive out trespassing cattle under such circumstances.^^® On the other hand, where the mate of a steamboat on the Mississippi river, in urging a deck hand about his work, assaulted and beat him, it was held that the owner of the steamboat was not liable, — the court proceeding upon the ground that, in the ordinary relation of employer and employe on a steam- boat on the inland waters, there is no implied authority from the owner of the boat to any officer or agent thereon to use force in com- pelling the hands at work, except possibly, in the time of fire, wreck or other extraordinary emergency. ^^^ So, where a foreman, em- ployed by a manufacturing corporation, had express authority to em- "' Levi V. Brooks, 121 Mass. 501. lar ruling, where the servant had Compare Sagers v. Nuckolls, 3 Colo, express orders to drive out the tres- App. 95; s. c. 32 Pac. Rep. 187, — passing cattle, and worried them ■which seems to have been erro- with dogs, and the master was held neously decided. liable for the use of the excessive "'Voegeli v. Pickel Marble Co., force, — see Schmidt v. Adams, 18 49 Mo. App. 643. Mo. App. 432. "'Evans v. Davidson, 53 Md. 245; '"Jones v. St. Louis Packet Co., s. c. 36 Am. St. Rep. 400. For a simi- 43 Mo. App. 398, 407. 504 LIABILITY OF PRINCIPAL FOR NEGLIGENCE OF AGENT. [2d Ed. ploy and discharge workmen, it was held to be impliedly within the scope of his authority to use such reasonable force as might be neces- sary to remove a discharged workman from the shop ; so that the cor- poration would be liable if he should use excessive force for that pur- pose.^^^ § 541. Instances of Acts Deemed Within the Scope of Servant's Employment. — Where the pilot in charge of a ferry boat, without the knowledge or consent of the proprietor, deviated from his ordinary course, in order to put off a boatman whom he was conveying gratui- tously, and, while so deviating, his boat was brought into collision with a canal boat, killing a person thereon, — ^it was held that the act was to be deemed within the general scope of the pilot's employment, although done without the authority of his master, express or implied, and that it did not fall within the description of acts where the serv- ant steps outside of the line of his duty to accomplish some purpose of his own.^^^ Following this decision, another court held that where a railway section foreman, returning from work with his crew upon a hand-car, encountered obstructions upon the line of his employer's road, and thereupon directed the hand-car to be transferred to the track of a parallel road operated by another company, which had been done occasionally before, but without the knowledge or consent of either company, and, while proceeding on such track, his ear was negli- gently propelled against another car containing the section men of such road, whereby one of them was injured, his own employer was liable.^^^ In another case it appeared that the defendant, a boiler- maker, had just completed a boiler for a customer. The boiler stood in the street in front of defendant's manufactory ; and defendant told bis superintendent to test it. The customer asked for a test under 180-pound pressure; defendant said that 150 was enough. The su- perintendent said that he would "test it 200 anyhow." When the pressure was applied defendant and the customer had walked away. After a pressure of 198 pounds, the superintendent took hold of and held down the lever, when the boiler exploded, and plaintiff, who was standing in the street, was injured. It was held that the act of the superintendent, though reckless and foolhardy, was within defend- ant's business, and that the judge presiding at the trial was justified in so holding, without submitting the question to the jury.^^* '"Rogahn v. Moore Man. &c. Co., '=" Pittsburgh &c. R. Co. v. Kirk, 79 Wis. 573; s. c. 19 Wash. L. Rep. 102 Ind. 399. 401; 48 N. W. Rep. 669. ^Ochsenbein v. Shapley, 85 N. Y. ■"^Quinn v. Power, 87 N. Y. 535; 214. s. c. 41 Am. St. Rep. 392; reversing s. c. 17 Hun (N. Y.) 102. 605 1 Thomp. Neg.] doctrine op respondeat superior. § 542. Other Such Instances. — Briefly stated, the following acts have been held to be within the scope of the employment of the serv- ant : — the act of a servant of a telegraph company, authorized to use dynamite in digging holes in which to set poles, in allowing a member of another gang to explode a dynamite cap for the purpose of seeing whether it had been injured by the wet, whereby a horse was fright- ened and caused to run away;^^° the erection of a scaifold in the con- struction of a building by one employed to superintend the erection of the building, so as to make the owner responsible for its imperfect construction;^^* the act of a bar-keeper of a saloon, in ejecting a per- son intoxicated and helpless, in such a manner as to cause a physical injury ;^^^ the act of a locomotive engineer in ejecting a small boy from his engine while in motion, whom he had invited to ride there, — for although it was outside the scope of his employment to invite the boy so to ride, yet it was within the scope of his employment to put him off, and in the discharge of this duty he was bound to use due § 543. Whether the Eule of Respondeat Superior Applies to Char- itable Corporations. — There is great diflBculty in making a charitable corporation, whose funds are raised by charitable donations to be ap- plied to charitable purposes, and whose members derive no profit from the use of them, responsible for the torts of the servants whom they are obliged to employ. The funds of such institutions are trust funds to be applied to certain specific purposes designated by the donor, and it is difficult, on principle, to support the conclusion that they can be diverted to the payment of damages caused by persons over whose con- duct the donors may not have any control. Among the cases pro- ceeding on this principle is one where a corporation was created for the purpose of saving life and property in, and contiguous to, burn- ^^ Brunner v. American Teleg. &c. N. Y. Supp. 659. When the act of Co., 160 Pa. St. 300; s. c. 28 Atl. a locomotive enf/meer In flagging up Rep. 690. to a station for water, in violation ^^ Haworth v. Seevers Man. Co., of a rule of the company, is deemed 87 Iowa 765; s. c. 51 N. W. Rep. 68. within the scope of his employment: ^ Brazil v. Peterson, 44 Minn. Gross v. Pennsylvania &c. R. Co., 212; s. c. 46 N. W. Rep. 331. 62 Hun (N. Y.) 619; s. c. 42 N. Y. ^Chicago &c. R. Co. v. West, 125 St. Rep. 808; 16 N. Y. Supp. 616.' 111. 320; s. c. 15 West. Rep. 170; Circumstances under which the con- 17 N. E. Rep. 788. When railway tracting agent of a travelling show brakeman, in charge of a switching had authority to make an agreement train, is deemed to be acting within with a member of the company, the scope of his employment so as rendering the proprietor of the to make the railway company re- show liable for the loss of his trunk: sponsible for an injury resulting McKay v. Buffalo Bill's Wild West from his negligence: Conlan v. New Co., 17 Misc. (N. Y.) 396; s. c. 39 York &c. R. Co., 74 Hun (N. Y.) N. Y. Supp. 1041. 115; s. c. 56 N. Y. St. Rep. 316; 26 506 LIABILITY OF PRINCIPAL FOR NEGLIGENCE OP AGENT. [2d Ed. ing buildings, having no moneyed capital, and making no dividends, but being supported by the voluntary contributions of fire insurance companies, and making no discrimination in its conduct between property insured and property not insured.'^® But another court, which has conceded and acted upon this principle,^ ^'' has held that overseers of the poor, highway surveyors, and selectmen of a town, being the same persons, in using, with its authority, its alms house farm, partly for the support of its poor, partly for the maintenance of its highway departftient, and incidentally for the production of in- come, acted as agents of the town; and that the town is hence re- sponsible for an injury caused by the negligence of a person employed by them on such farm, — in the particular case an injury inflicted by the driver of its wagon in running over a person on the street.^^^ The same court has held that an incorporated society similar to the above, organized for the protection of life and the j^revention of fires in a city, without any capital stock or income other than that derived from compulsory assessments upon all the insurance companies, whether connected with it or not, doing business in the citj'', and which declares no dividends, — is a private corporation in the city and not a public charity, and is hence liable for the negligence of its servants under the rule of respondeat superior, notwithstanding the fact that it does not discriminate in saving the property between that which is insured and that which is uninsured — it being impracticable to do so ; and notwithstanding the further fact that it has the power to enter buildings and assist at fires, and has the right of way in the streets for that purpose, provided it does not interfere with the fire department of the city.^^^ In the opinion of the same court, a cor- poration organized to purchase a tract of land, and maintain it as a cemetery for the burial place of its members, which declares no divi-' dends, though not prohibited from doing so, is not a public charity, but is a corporation organized for the benefit of its members and is hence liable to the proprietor of a grave for the negligence of its servants in burying another body therein. ^^^ The fact that there was a statute reciting that all the real and personal estate of a corpora- tion "shall be applied exclusively for the purposes connected there- with, and appropriate to the objects of such an organization," was held >="Fire Ins. Patrol v. Boyd, 120 Pa. s. c. 2 L. R. A. 500; 20 N. E. Rep. St. 624; s. c. 1 L. R. A. 417; 6 Am. 111. St. Rep. 745; 38 Alb. L. J. 431; 22 '^^Newcomb v. Boston Protective W. N. C. 248; 15 Atl. Rep. 553. Department, 151 Mass. 215; s. c. 24 ™ McDonald v. Massachusetts N. B. Rep. 39; 6 L. R. A. 778; 8 Gen. Hospital, 120 Mass. 432; Ben- Rail. & Corp. L. J. 65; 29 Am. & ton v. Boston City Hospital, 140 ' Eng. Corp. Cas. 641. Mass. 13. "= Donnelly v. Boston Catholic "' NefE V. Wellesley, 148 Mass. 487; Cemetery Asso., 146 Mass. 163. 507 1 Thomp. Neg.J doctrine op kespondeat slpekior, not to exempt the property of the corporation from ordinary civil lia- bilities. It was said, by Mr. Justice Holmes, that there is a similar restriction, express or implied, in the case of a railroad.^'* § 544. Power of Corporations to Employ Surgeons or Nurses for Wounded Employes, etc.^^ — Speaking generally, railroad companies have the power, acting through their superior officers, and through their subordinate agents in case of emergency, to employ surgeons, nurses, etc., to care for their employes woundsd in the line of their duty.^"'* The implication of this power rests upon the most obvious grounds of justice and humanity.^ ^^ § 545. Through what Officer this Power Exercised. — The question through what officer a corporation may exercise this jrower, that is to say, what officer has the implied power so to act for the corporation, — is a different question, and one upon which the authorities are con- flicting. It has been held, but upon a view that is believed to be clearly unsound, that one who is at once secretary, treasurer, and general manager of a lumber company has no power to bind the com- pany to pay for the services of a surgeon to attend an employe, who has been dangerously wounded ; but that the officer calling the physi- cian makes himself personally liable.^ ^^ The question of the power of the managing agent of a corporation, by whatever name called, in the absence of express authorization, to bind the corporation by em- ploying a surgeon, physician, or nurse, to attend upon an employe of the company who has been wounded in the line of his duty, has pro- voked a difference of judicial opinion, not unlike that which attends the question where a physician or surgeon is called in in an emer- gency case by a person other than the patient. An able discussion of the question will be found in a case in Michigan, where the court, consisting of four judges, was equally divided.^^* The rule is that '« Donnelly v. Boston Catholic v. McMurray, 98 Ind. 358; s. c. 49 Cemetery Assq., 146 Mass. 163. That Am. Rep. 752; Louisville &c. R. Co. a mutual benefit society organized v. McVay, 98 Ind. 391; s. c. 49 Am. among the employes of a manufac- Rep. 770; Atlantic &c. R. Co. v. turing corporation, is not a chari- Reisner, 18 Kan. 458; Swazey v. table corporation, see Coe v. Wash- Union Man. Co., 42 Conn. 556; Cin- ington Mills, 149 Mass. 543, and cinnati &c. R. Co. v. Davis, 126 Ind. cases cited. 99 ; Terre Haute &c. R. Co. v. Stock- aThis section is cited in §§ 591, well, 118 Ind. 98; Terre Haute &c. 593. R. Co. v. Brown, 107 Ind. 336. '«» Bedford Belt R. Co. v. McDon- •*' Toledo &c. R. Co. v. Rodrigues, aid, 17 Ind. App. 492; s. c. 46 N. E. 47 111. 188; s. c. 95 Am. Dec. 484. Rep. 1022; 60 Am. St. Rep. 172; '" Dale v. Donaldson Lumber Co., Pittsburgh &c. R. Co. v. Sullivan, 48 Ark. 188; s. c. 3 Am. St. Rep. 141 Ind. 83; s. c. 50 Am. St. Rep. 224; 2 S. W. Rep. 703. 313, and note; Quinn v. Railroad "'Marquette &c. R. Co. v. Taft, 28 Co., 94 Tenn. 713; s. c. 45 Am. St. Mich. 289. Rep. 767; Terre Haute &c. R. Co. 508 LIABILITY OF PRINCIPAL JFOK NEGLIGENCE OF AGENT. [2d Ed. such a request does not raise an implied promise where there is no legal duty toward the patient on the part of the person making the request.^ ^^ § 546. Superintendents, Surgeons, Bead Masters, etc. — In Illinois, a promise to pay for medical attendance and nursing, rendered to a servant of a railroad company injured in the discharge of his duty upon the road, is presumed to be within the general powers of the superintendent of the road, and will bind the company.^*" The Supreme Court of Kansas took the liberal and humane view that pre- sumably a general superintendent of a railroad has implied authority to employ a physician or surgeon, at the expense of the company, to attend a servant of the company injured in performance of his duties ; that a division superintendent has the same power within his division ; and that this authority involves power to ratify such an employment, made by a subordinate without instructions. If a subordinate em- ploys a physician, in a proper case, in the name of the company, and the physician reports the facts of his employment and service, with his bill therefor, to the division superintendent, and the latter pays no attention to it, never repudiating the contract as binding the com- pany, — these facts may warrant a jury in finding that the act of a subordinate in employing the physician was ratified.^*^ The Su- preme Court of Iowa also held that an assistant superintendent of a railroad company possesses an implied authority to employ nurses to attend an injured employe.^*^ But subsequently the same court held that a surgeon of a railroad company has no implied authority, as such, to bind the company by an agreement that it will pay for serv- ices and meals furnished nurses and others, in attendance on an employe of the company, who has been injured by an accident on its roads.^*' The Supreme Court of Missouri will not take judicial no- tice of the duties of a division superintendent of a railroad, or allow a recovery against the company for drugs furnished on his order to a person who has been hurt by the company's locomotive, without proof that he was authorized to give the order.^** In the same State, a manufacturing corporation is not liable for the services of a surgeon ""Veitch V. Russell, 3 Ad. & El. '"Pacific R. Co. v. Thomas, 19 (N. S.) 928; Sellen v. Norman, 4 Kan. 256. Car. & P. 80 ; Crane v. Baudouine, "^ Bigham v. Chicago &c. R. Co., 55 N. Y. 256; Smith v. Watson, 14 79 Iowa 534; s. c. 44 N. W. Rep. Vt. 332; Boyd v. Sappington, 4 Watts 805. (Pa.) 247; Meisenbach v. Southern '"Bushnell v. Chicago &c. R. Co., Cooperage Co., 45 Mo. App. 232. 69 Iowa 620; s. c. 29 N. W. Rep. '"Toledo &c. R. Co. v. Rodrigues, 753. 47 111. 188; s. c. 95 Am. Dec. 484. '"Brown v. Missouri &c. R. Co., 67 Mo. 122. 509 1 Thomp. Neg.] doctrine op respondeat superior. called by its superintendent to attend an injured servant, in the ab- sence of evidence that the superintendent had been authorized by it to summon medical aid in case of emergency.^*" In Florida, an em- ploye of a railroad company was run over by a train while in the dis- charge of his duty. The road master ordered the train conductor to employ a physician. The physician rendered, for fourteen days, nec- essary services, the conductor having assured him that the company would pay the bill. On the trial of an action brought by the physi- cian against the company, there was no evidence of ratification by any officer higher in authority. It was held that the action could not be maintained, the road master and conductor having no implied author- ity to bind the company.^ *° § 547. The Subject Considered with Special Eeference to Eailway Accidents. — Whatever may be regarded as the correct view with re- gard to the managers of other private corporations, we may conclude, with confidence, that the manager or superintendent of a business so dangerous at once to employes, to passengers and to the general pub- lic, as that of a railroad company, impliedly possesses this power.^*'' It has been held, — ^but the writer thinks erroneously, at least so far as regards cases where there is an emergency, — that a railroad station agent has no such implied power.^** § 548. Ratification of Such Engagements. — But the company will be liable for the value of such services, rendered at the request of a station agent, if, upon due notice to the general superintendent, the act is not repudiated ;^*° and it has been well held that slight acts of ratification by the company will authorize a jury to find that the em- ployment was a corporate act.^^" It was accordingly held that, where the managing officers of a railway company, on being telegraphed by "' Melsenbach v. Southern Coop- thorlty as the general superintend- erage Co., 45 Mo. App. 232; dlstin- ent: Pacific R Co. v. Thomas, 19 guishing McCarthy v. Missouri R. Kan. 256. Co., 15 Mo. App. 385. "'Atlantic &c. R. Co. v. Reisner, '"Peninsular R. Co. v. Gary, 22 18 Kan. 458; Tucker v. St. Louis Fla. 356; s. c. 1 Am. St. Rep. 194. &c. R. Co., 54 Mo. 177; Cooper v. "' Walker v. Great Western R. Co L. R. 2 Ex. 228; Atlantic &c. R. Co V. Reisner, 18 Kan. 458; Pacific R, Co. v. Thomas, 19 Kan. 256. Contra, Stephenson v. New York &c. R. Co 2 Duer (N. Y.) 341. Compare Mar quette &c. R. Co. v. Taft, 28 Mich 289, 298, per Cooley, J. Presump tively, the "division superintendent' New York &c. R. Co., 6 Hun (N. Y.) 276; Cox v. Midland Counties R. Co., 3 Exch. 268, ""Toledo &c. R. Co. v. Prince, 50 111. 26; Toledo &c. R. Co. v. Rodri- gues, 47 111. 188; s. c. 95 Am. Dec. 484; Pacific R. Co. v. Thomas, 19 Kan. 256. "" Cairo &c. R. Co. v. Mahoney, has, in respect to matters happening 82 111. 73; s. c. 25 Am. Rep. 299. within his jurisdiction, the same au- 510 LIABILITY OP PRINCIPAL FOR NEGLIGENCE OP AGENT. [2d Ed. the conductor of the act of the station agent in employing a surgeon, failed to notify the surgeon that the company would not be responsible for his bill, it was liable for it.^°^ '" Indianapolis &c. R. Co. v. Mor- ris, 67 111. 295. As to the personal liaHUty of an officer of a railroad company to a physician, directed by him to treat a minor child who had been run over by a train of the com- pany, — see Raoul v. Newman, 59 Ga. 408. See also Cairo &c. R. Co. V. Mahoney, 82 111. 73; s. c. 25 Am. Rep. 299. A railway conductor, pro- fessing to act in behalf of the rail- way company, requested a physi- cian to take charge of a stranger who had been struck by the train and injured. The company was in- formed of this, and did not repu- diate the conductor's authority. It was held that the company was liable to the physician; and this not only for the dressing of the wound, but for the services rendered afterwards at the conductor's re- quest: Terre Haute &c. R. Co. v. Stockwell, 118 Ind. 98; s. c. 20 N. B. Rep. 650; 37 Am. & Eng. Rail. Cas. 278, Mitchell, J., dissenting. Liability of conductor and driver of street railroad cars to criminal pun- ishment for overdriving and over- loading horses: People v. Tinsdale, 10 Abb. Pr. (N. S.) (N. Y.) 374. That a railroad company is liable for the services of a nurse, for an injured employ^ employed by its trainmaster, who was apparently clothed with authority to engage the nurse, — see Chicago &c. R. Co. V. Kane, 65 111. App, 276. 511 rilOmD. Neg.J DOCTRINE OF RESPONDEAT SUPERIOR. CHAPTER XVI. LIABILITY OP PRINCIPAL OR MASTER POB WILLFUL, MALICIOUS, OR CRIMINAL ACTS OE AGENT OR SERVANT. Section 552. Doctrine that the master Is not liable for the willful, mali- cious, wanton or criminal acts of his servant. 553. This doctrine rests on falla- cious grounds. 554. Repudiated as unjust and im- politic. 555. Applications of this doctrine in cases where servant uses ex- cessive force in accomplish- ing his duty. 556. The true distinction stated and illustrated. 557. Application of this doctrine to corporations. 558. When the malice and motive of the servant an evidentiary- fact. 559. Illustrations of the liability of a master for malicious in- juries committed by his serv- ants. 560. Liability of master for tres- passes of servant. 561. Further of the liability of mas- ter for trespasses of his serv- ant. 562. Liability of master where the action is to recover a statu- tory penalty for a trespass. Section 563. Liability of master for assaults committed by his servants. 564. Illustrations of liability of mas- ter for assaults committed by his servants. 565. Liability of master for unlaw- ful arrests, false imprison- ments, malicious prosecu- tions by his servants. 566. Further of the liability of mas- ters for false arrests, etc., by their servants. 567. Further of this liability. 568. Where the servant making the arrest is also a police officer. 569. Liability of master for libels published by his servant. 570. Liability of a principal for the act of his agent in boycotting a third person. 571. Liability of master for a homi- cide committed by a servant. 572. Further of liability of master for homicides by servants. 573. Application of these principles to the case of a malicious tort of a servant while driv- ing his master's wagon. 574. Liability of master under stat- ute against cruelty to ani- mals. § 552. Doctrine that the Master is not Liable for the Willful, Ma- licious, Wanton or Criminal Acts of His Servant. — Thus far all is clear. The first conflict among the adjudications has grown out of the difficulty of determining under what circumstances a servant is to be deemed as having acted for his master, and under what for him- oi2 LIABILITY OF MASTER FOR SERVANT'S WILLFUL ACTS. [2d '^A. self. And here we encounter a number of decisions which hold that, where a servant abandons his duty and willfully becomes a wrong- doer, the master will not be responsible, unless it be shown that he authorized the particular act, or ratified it after it was committed;^ or, as these cases more generally formulate the rule, the master will not be liable for the willful or criminal acts of his servant, although done at a time when he was pursuing his master's business, and al- though done with the means which the master had placed in his hands for the discharge of such business.^ § 553. This Doctrine Rests on Fallacious Grounds. — The courts which have so ruled have proceeded on the theory that authority from the master to the servant to commit a willful wrong, or a crime, will not be implied, and that the servant, when so acting, will therein be deemed to act, not for his master, but for himself. If he makes use of his master's property in committing this wrong, he will be deemed, according to the fantastic reasoning of Lord Kenyon, borrowed from Rolle's Abridgment, to have acquired, for the time being, a special property therein.^ The fallacy of this reasoning was, that it made a certain mental condition of the servant the test by which to determine whether he was acting about his master's business or not.* § 554. Repudiated as Unjust and Impolitic.^ — Moreover, with re- spact of all intentional acts done by a servant in the supposed fur- therance of his master's business, it clothed the master with immunity if the act was right, because it was right; and if it was wrong, it clothed him with a like immunity because it was wrong. He thus got •McManus v. Crickett, 1 East 106; 43 N. Y. 566; Garvey v. Dung, 30 s. c. 2 Thomp. Neg., 1st ed., 865; How. Pr. (N. Y.) 315; Steele v. Brown v. Purviance, 2 Har. & G. Smith, 3 E. D. Smith (N. Y.) 321; 316; Moore V. Sanborne, 2 Mich. 519; Ryan v. Hudson River R. Co., 1 Lindsay v. Griffin, 22 Ala. 629; Phila. Jones & Sp. (N. Y.) 139; McCoy v. &c. R. Co. V. Wilt, 4 Whart. (Pa.) McKowen, 26 Miss. 487; New Or- 143 ; Snodgrass v. Bradley, 2 Grant leans &e. R. Co. v. Harrison, 48 Miss. Cas. (Pa.) 43; Illinois &c. R. Co. v. 112; Oxford v. Peter, 28 111. 434; Downey, 18 111. 259. Contra, St. Johnson v. Barber, 10 111. 425; Tul- Louis &c. R. Co. v. Dalby, 19 111. ler v. Voght, 13 111. 277; Pritchard 353; Illinois Central R. Co. v. Read, v. Keefer, 53 111. 117; Halty v. 37 111. 484; Mars v. Delaware &c. Markel, 44 111. 225; Wesson v. Sea- Canal Co., 54 Hun (N. Y.) 625; board &c. R. Co., 4 Jones L. (N. C.) s. c. 28 N. Y. St. Rep. 228; 8 N. Y. 379; Puryear v. Thompson, 5 Supp. 107. Humph. (Tenn.) 397; Gulf &c. R. "Jones v. Hart, 2 Salk. 440; Van- Co. v. Moore, 69 Tex. 157; s. c. 6 derbilt v. Richmond Turnpike Co., S. W. Rep. 631. 2 N. Y. 479; Phila. &c. R. Co. v. 'McManus v. Crickett, 1 East 106; Wilt. 4 Whart. (Pa.) 143; Wright s. c. 2 Thomp. Neg., 1st ed., 865. V. Wilcox, 19 Wend. (N. Y.) 343; De 'Countryman, J., in Rounds v. Camp V. Mississippi &c. R. Co., 12 Delaware &c. R. Co., 3 Hun (N. Y.) Iowa 348; Cooke v. Illinois &c. R. 336. Co., 30 Iowa 202 ; Fraser v. Freeman, a This section is cited in § 519. VOL. 1 THOMP. NEG. — 33 513 1 Thomp. Neg.J doctrine of respondeat superior. the benefit of all his servant's acts done, for him, whether right or wrong, and escaped the burden of all intentional acts done for him which were wrong. Under the operation of such a rule, it would always be more safe and profitable for a man to conduct his business vicariously than in his own person. He would escape liability for the consequences of many acts connected with his business, springing from the imperfection of human nature, because done by another, for which he would be responsible if done by himself. Meanwhile the public, obliged to deal or come in contact with his agents, for intentional in- juries done by them, might be left wholly without redress. He might delegate to persons pecuniarily irresponsible the care of large fac- tories, of extensive mines, of ships at sea, or of railway trains on land, and these persons, by the use of the extensive power thus committed to them, might inflict wanton and malicious injuries on third persons, without other restraint than that which springs from the imperfect execution of the criminal laws. A doctrine so fruitful of mischief could not long stand unshaken in an enlightened system of jurispru- dence. We shall not, therefore, be surprised to find it repudiated by eminent writers,^ and by a respectable array of modern judicial au- thority. ° § 555. Applications of this Doctrine in Cases Where Servant Uses Excessive Force in Accomplishing his Duty. — Such a rule, fairly ap- plied, would lead to the result embodied in the charge of a judge at Nisi Prius, in a leading case in Illinois:' If the conductor of a rail- way train, authorized to remove therefrom persons who refuse to pay their fare, uses merely as much force as is necessary to effect this re- » Reeve's Dom. Rel., 640; Cooley far Co., 2 Mo. App. 36; Gillett v. on Torts, 535. Missouri River Valley R. Co., 55 « Shea V. Sixth Avenue R. Co., 62 Mo. 315; Malecek v. Tower Grove N. Y. 180; Mott v. Consumers' Ice &c. R. Co., 57 Mo. 17; Buckley v. Co., 73 N. Y. 543; s. c. 18 Alh. L. Knapp, 48 Mo. 152; Ramsden v. Bos- J. 90 ; Croft v. Allison, 4 Barn. & ton &c. R. Co., 104 Mass. 117 ; North- Aid. 590; Howe v. Newmarch, 12 Western R. Co. v. Hack, 66 111. 238; Allen (Mass.) 49; Wolfe v. Merse- Metcalf v. Baker, 2 Jones & Sp. (N. reau, 4 Duer (N. Y.) 473; McCor- Y.) 10; Rounds v. Delaware &c. R. mick V. Pennsylvania R. Co., 49 N. Co., 3 Hun (N. Y.) 329 (affirmed, Y. 303; Pittsburgh &c. R. Co. v. Don- 64 N. Y. 129) ; Pittsburgh &c. R. Co. ahue, 70 Pa. St. 119; Jeffersonville v. Theobald, 51 Ind. 246; Pendleton &c. R. Co. V. Rodgers, 38 Ind. 116; v. Kinsley, 3 Cliff. 416; Goddard v. Toledo &c. R. Co. v. Harmon, 47 111. Grand Trunk R. Co., 57 Me. 202; 298; Chicago &c. R. Co. v. Dickson, Craker v. Chicago &c. R. Co., 36 63 111. 151; Philadelphia &c. R. Co. Wis. 657; Keene v. Ligardi, 5 La. V. Derby, 14 How. (U. S.) 568; 431; s. c. 6 La. 315; Bryant v. Rich, Hawes v. Knowles, 114 Mass. 518; 106 Mass. 180. Sherley v. Billings, 8 Bush (Ky.) ' Charge of the judge at 7>risi PnM«, 147; Hawkins v. Riley, 17 B. Mon. in St. Louis &c. R. Co. v. Dalby, 19 (Ky.) 101; Duggins v. Watson, 15 111. 353. Ark. 118 ; Eckert v. St. Louis Trans- 514 LIABILITY OF MASTER FOR SERVANT'S WILLPUL ACTS. [2d Ed. suit, the company will not be liable, for the act is proper ; and if he uses more force than is necessary, the company will not be liable, for, in so far as he uses excessive force, the act is his own act, and not the company's. There is no sense in this, and it is not the law. The modern rule is, that if a servant, authorized to use force about his master's business, uses excessive force, his master must answer in dam- ages to the person thereby injured, wholly without reference to the state of mind under which the servant acted.* If he is required to use force, and is left to his discretion as to how much he shall use, the master will, upon either view of the subject, be answerable if he uses too much force through negligence.^ § 556. The True Distinction Stated and Illustrated. — The distinc- tion was thus stated in an English per curiam opinion, much quoted : "If a servant, driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, and produce the accident, the master will not be liable. But if, in order to perform his master's orders, he strikes, but injudiciously, and in order to ex- tricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pur- suance of the servant's employment."^" § 557. Application of this Doctrine to Corporations. — To show how thoroughly this doctrine is exploded, we may instance the fact that a corporation, from its very nature, can act only through its agents, who are in law deemed its servants ; and yet, although there is 'Hewet't V. Swift, 3 Allen (Mass.) tlnctlon. The action was against a 420; Moore v. Fitchburg R. Co., 4 railroad company to recover dam- Gray (Mass.) 465; Seymour v. ages for the act of its servants in Greenwood, 6 Hurl. & N. 359; s. c. sounding the locomotive whistle, 4 L. T. (N. S.) 835; 30 L. J. (Exch.) blowing off steam, shouting, yelling, 327; Chicago &c. R. Co. v. Parks, &c., whereby the plaintiff's horse 18 111. 460; Cohen v. Dry Dock &c. hitched to a pole in the field, took R. Co., 69 N. Y. 170; Echols V. Dodd, fright, ran away and was fatally 20 Tex. 190; Rounds v. Delaware injured. The theory of the court &c. R. Co., 64 N. Y. 129 (affirming seems to have been that there could s. c. 3 Hun (N. Y.) 329; 5 N. Y. S. be a recovery for the excessive use C. (T. & C.) 475); St. Louis &c. R. of steam whistles and the unneces- Co. v. Dalby, 19 111. 353. Contra, sary blowing off of steam, but not Cantrell v. Col well, 3 Head (Tenn.) for any acts done by the train hands 471; Montgomery v. Sartirano, 16 in the way of mere wanton mis- App. Div. 95; s. c. 44 N. Y. Supp. chief: Cobb v. Columbia &c. R. Co., 1066. 37 S. C. 194; s. c. 12 Rail. & Corp. "Puryear v. Thompson, 5 Humph. L. J. 251; 15 S. E. Rep. 878. That (Tenn.) 397; Seymour v. Green- the statute of Georgia (Ga. Code, wood, 6 Hurl. & N. 359; Croft v. § 2961), making a person liable for Alison, 4 Barn. & Aid. 590. torts committed by his servants, " Croft V. Alison, 4 Barn. & Aid. whether by negligence or volunta- 590. It would seem from the decis- rily, applies to domestic servants ion in South Carolina that the only, — see Lockett v. Pittman, 72 court intended to follow this dis- Ga. 815. 515 2 Thomp. Neg.] doctrine of respondeat superior. some year-book law to the contrary/^ it is now firmly settled that a corporation may commit a trespass,^^ and accordingly that an action of trespass will lie against it;^' nay, it may be answerable civiliter for an assault and battery/* for a libel/" for false imprisonment/" or for fraud/' and yet in all these cases the act is necessarily willful and malicious.^* The rule that a corporation is answerable for the tres- passes of its agents extends even to municipal corporations.^* Indeed, the rule may be broadly stated that, in respect of liability for the acts of their servants, private corporations stand on the same footing as in- dividuals.^* The only limitation upon this rule appears to be, that "Ang. & Ames on Corp., § 385. "Illinois &c. R. Co. v. Read, 37 111. 508, 509, per Breese, J.; Maund V. Monmouthshire Canal Co., 4 Man. £ G. 452; s. c. 5 Scott N. R. 457; Hay V. Cohoes Co., 3 Barb. (N. Y.) 42 (affirmed, 2 N. Y. 159) ; Moore v. Fitchburg R. Co., 4 Gray (Mass.) 465; Edwards v. Union Bank, 1 Fla. 136; Whiteman's Executors v. Wil- mington &c. R. Co., 2 Harr. (Del.) 514; Smith v. Birmingham Gas Co., 1 Ad. & E. 526. See Yarborough v. Bank of England, 16 East 6; Giles V. Taff Vale R. Co., 2 El. & Bl. 822; Bath V. Caton, 37 Mich. 199; Hewett V. Swift, 3 Allen (Mass.) 420; Lesher v. Wabash Nav. Co., 14 111. 85; Hind v. Wabash Nav. Co., 15 111 72; Chicago &c. R. Co. v. McCarthy, 20 111. 385. "Barnard v. Stevens, 2 Aik. (Vt.) 429; Lyman v. Bridge Co., 2 Aik. (Vt.) 255; Underwood v. Newport Lyceum, 5 B. Mon. (Ky.) 130; Craw- fordsville &c. R. Co. v. Wright, 5 Ind. 252; Hazen v. Boston &c. R. R., 2 Gray (Mass.) 574; Chicago &c. R. Co. V. Fell, 22 111. 333; Chicago &c. R. Co. V. Whipple, 22 111. 105; Crocker v. New London &c. R. Co., 24 Conn. 249. "St. Louis &c. R. Co. v. Dalby, 19 111. 353. "Philadelphia &c. R. Co. v. Quig- ley, 21 How. (U. S.) 202; Whitfield v. South-Eastern R. Co., Bl. Bl. & El. 115. See Lawless v. Anglo- Egyptian &c. Co., L. R. 4 Q. B. 262. "Goff V. Great Northern R. Co., 3 El. & El. 672; Moore v. Metropoli- tan R. Co., L. R. 8 Q. B. 36; Bayley V. Manchester &c. R. Co., L. R. 8 C. P. 148; Moore v. Fitchburg R. Co., 4 Gray (Mass.) 465. " Directors v. Kisch, L. R. 2 H. L. 99; Smith v. Reese River Co., L. R. 516 2 Eq. 264; Vreeland v. New Jersey Stone Co., 29 N. J. Eq. 190; Western Bank of Scotland v. Addle, L. R. 1 H. L. Sc. 145; National Exchange Co. of Glasgow V. Drew, 2 Macq. H. L. Cas. 103; s. c. 1 Patterson Scotch Appeals 482; 32 Eng. L. & E. 1; Mackay v. Commercial Bank of New Brunswick, L. R. 5 P. C. 394. Com- pare Ranger v. Great Western R. Co., 5 H. L. Cas. 72. " Sir Nathaniel Lindley, in his ad- mirable work on "Partnerships" (Vol. I., 4th ed., p. 300), declares, after examining the authorities, that there is no ground for holding that the nature of a corporate body is such that it can not, in point of law, be guilty of a malicious injury, and that the cases remove all doubts expressed in Stevens v. Midland Counties R. Co., 10 Exch. 352. " Buftalo &c. Turnpike Co. v. Buf- falo, 1 N. Y. S. C. (T. & C.) 537; Carman v. New York, 14 Abb. Pr. (N. Y.) 301; Hanvey v. Rochester, 35 Barb. (N. Y.) 177; Lee v. Sandy Hill, 40 N. Y. 442; Quinn v. Pater- son, 27 N. J. L. 35; McGary v. La- fayette, 12 Rob. (La.) 668, 674; s. c. 4 La. An. 440; Walling v. Shreve- port, 5 La. An. 660; Wilde v. New Orleans, 12 La. An. 15; 2 Thomp. Neg., 1st ed., 742. ^° Donaldson v. Mississippi &c. R. Co., 18 Iowa 280; Rex v. Medley, 6 Car. & P. 292; Bath v. Caton, 37 Mich. 199; s. c. 6 Reporter 335; Louisville &c. R. Co. v. Collins, 2 Duv. (Ky.) 114; Pittsburgh &c. R. Co. v. Ruby, 38 Ind. 294; St. Louis &e. R. Co. V. Dalby, 19 111. 353; Illi- nois &c. R. Co. V. Read, 37 111. 484; Bloodgood V. Mohawk R. Co., 18 Wend. (N. Y.) 9; Wilson v. Rock- land Man. Co., 2 Harr. (Del.) 67; Satterfield v. Western Union Tel. Co. 23 111. App. 446. LIABILITY OP MASTER FOR SERVANT'S WILLFUL ACTS. [2d Ed. the business about which the agent was acting when he did the wrong must have been such a business as the corporation could lawfully en- gage in; it must have been — speaking with reference to the power of the corporation itself, and not with reference to the power of the par- ticular agent, under his instructions — intra vires, and not ultra vires. For if the company was disabled from authorizing its agent to trans- act the particular business, or from ratifying it after it had been trans- acted, there appears to be no ground on which the relation of principal and agent, or master and servant, can be deemed to have subsisted between them.^^ The same liability extends to municipal corpora- tions, for the wrongful acts of their agents. In those cases where they are answerable in damages at all, — a subject discussed at large in a former chapter,^ ^ — the rule of respondeat superior applies to them the same as it does to individuals.^^ § 558. When the Malice and Motive of the Servant an Evidentiary Fact. — While the mere fact that the servant acted maliciously or even criminally will not of itself, in all cases, exonerate the master, yet it is entirely clear that the state of mind of the servant is an evidentiary fact bearing upon the question whether in doing the particular act he was acting for himself or acting for his master. If it appears, upon such evidence, that the act causing the injury was done by the servant out of mere.wanton mischief, and without any authority to do it from his master, express or implied, then the master will not be liable for his doing it, although at the very time of doing it, he may have been engaged at work for his master. It was so held where a number of beer bottles came into the possession of one engaged in bottling beer, belonging to another person so engaged, and the servant for the for- mer, while at work for his master, wantonly broke and destroyed them.^* This case affords a seemingly sound illustration of the doc- trine that the master is not liable where the servant steps outside the line of his employment, for a period of time however short, to accom- plish some purpose of his own. Another seemingly sound illustration of the same doctrine is found in a case where a locomotive engine was left standing unguarded on a side track with its fires banked, and some one, either an employe of the railway company, or a third per- ^Lindley on Part. (4th ed.), 300. Y.) 433; Delmonico v. New York, 1 = 2 Thomp. Neg., Ist ed., 737. Sandf. S. C. (N. Y.) 222; Lloyd v. ^Hilsdorf v. St. Louis, 45 Mo. 94, New York, 5 N. Y. 369; Carman v. 97; Ross v. Madison, 1 Ind. 281; New York, 14 Abb. Pr. (N. Y.) 301; Cotes V. Davenport, 9 Iowa 227; Cincinnati v. Stone, 5 Ohio St. 38; Templin v. Iowa City, 14 Iowa 59; St. Paul v. Seltz, 3 Minn. 297. Deyoe v. Saratoga Springs, 1 Hun ^ Delhi v. OttenvlUe, 14 Lea (N. Y.) 341; Bailey v. New York, (Tenn.) 191. 3 Hill (N. Y.) 531; s. c. 2 Denio (N. 517 1 Tliomp. Neg.J doctrine op respondeat superior. son, maliciously started it in motion, bringing it into collision with a passeng'er train on the main track. Here it was held that, assuming the act to have been done by an employ^ of the company, yet such an act, involving a most heinous crime, committed out of some motive of private malice, could not be regarded as an act within the scope of the employment of any servant of the company.^'' But it may be doubted whether the court did not fall into too great a refinement which held that a master would be liable for the negligent act of the servant in driving his vehicle against a tightened telegraph wire, which act im- periled the safety of a lineman at work on the top of the cross-arm, yet the master could not be so liable if the servant after being told to stop, whipped up his horses and caused the wire to tighten upon the lineman whereby he was injured, — the theory of the court being that because the latter act was willful it was not in the line of the servant's employment.^' § 559. Illustrations of the Liability of a Master for Malicious In- juries Committed by his Setrvants. — Masters have been held liable for the malicious injuries committed by their servants in the following cases: — Where a jockey, in riding a race, intentionally fouled, ran against, or interfered with another horse, so running f where a mas- ter sent his servant with milk and butter to a cheese factory, and the servant put foul water into it, with the intent to injure his master, whereby damages accrued to the owner of the factory who received and paid for the milk, supposing it to be good;^^ where a servant, em- ployed to unload coal from a car, threw a heavy board from the top of the car into the open street, without any regard for the safety of per- sons on the street, or without giving any warning, and a person on the street was thereby hurt;^° where a railway brakeman threw a stone at a boy who had been trying to steal a ride, and hurt a by-stander, — a decision plainly wrong ;^" where a customer in a store, engaged in trying on a cloak, was accused by the floor-walker of being a spy from a rival store, and, upon his order, the salesman took the cloak off from her, — holding the proprietor liable as for an assault ;^^ where a rail- way station agent was required by the company to keep 'TDums" away from the station, and saturated the clothing of a bum who was sleep- ^Mars v. Delaware &c. Canal Co., L. J. 3; 44 Cent. L. J. 140; 45 N. E. 54 Hun (N. Y.) 625; s. c. 28 N. Y. Rep. 634. St. Rep. 228; 8 N. Y. Supp. 107. '° Holmes v. Tennessee Coal &c. ^ Clark V. Keotiler, 46 Hun (N. Co., 49 La. An. 1465; s. c. 22 South. Y.) 536. Rep. 403. =^ McKay V. Irvine, 11 Blss. (U. ™ Georgia &c. R. Co. v. Wood, 94 S.) 168. Ga. 124. ^'Stranahan Bros. Catering Co. v. =' Geraty v. Stern, 30 Hun (N. Y.) Coit, 55 Ohio St. 398; s. c. 37 Ohio 426. 518 LIABILITY OF MASTER FOR SERVANT'S WILLFUL ACTS. [2d Ed. ing in the station with benzine, which was set on fire, either by him- self, or a third person, — holding the company liable for the resulting injury, although the motive of the agent was in part to amuse him- self ; nor did it make any difference that the benzine may have been set on fire by a third person, where the station agent intended to do it himself ;^^ where a railway company permitted its employes to continue in the habit of throwing sticks of wood from a moving re- pair train, for their own use when returning from work, although the act was beyond the scope of their employment and totally discon- nected therefrom, if injury to third persons might reasonably have been apprehended from such a course of conduct.*' § 560. Liability of Master for Trespasses of Servant. — From these considerations, it is obvious that this principle extends so far as to make a master liable for trespasses upon the property of others, negli- gently committed,** — as, where a master sends his servant to cut tim- ber in his wood, without taking care to advise him as to its bound- aries, and he thereby accidentally fells a tree on the land of another;*^ or where the master directs his servant to pile rubbish in a certain place, and it accidentally slides down against his neighbor's wall;** or where a servant, in order to move his master's barge to a dock, re- moves the plaintiff's therefrom, and so injures it;*' or where the line- repairer of a telegraph company in cutting down trees which he deems to be too near the wires, commits a trespass upon the property of the land-owner;** or where the agents and servants of a telegraph com- pany, engaged in striking a line for the company, cut down trees of a private owner, although in disobedience of the instructions of the company;*' or, where cattle have escaped from a railway train on which they are being carried at the time of the accident, and the sec- »^ Meade v. Chicago &c. R. Co., 68 Chicago Leg. News 137; 25 Wash. Mo. App. 92. Other cases of inju- L. Rep. 774; 18 Sup. Ct. Rep. 35. ries received from ohjects thrown ^* Luttrell v. Hazen, 3 Sneed from railway cars are: Fletcher v. (Tenn.) 20; Bath v. Caton, 37 Mich. Baltimore &c. R. Co., 168 U. S. 135; 199; s. c. 6 Reporter 335; Gregory reversing s. c. 6 App. Cas. D. C. v. Piper, 9 Barn. & Cress. 591; s. c. 385; Walker v. Hannibal &c. R. Co., 4 Man. & R. 500; Mackay v. Commer- 121 Mo. 575; s. c. 24 L. R. A. 363 cia Bank of Brunswick, L. R. 5 (plaintiff struck by his drill, which P. C. 394. Contra, Bolingbroke v. was regularly carried for him gratu- Swindon Local Board, L. R. 9 C. P. itously, and without knowledge of 575. defendant) ; Walton v. New York == Bath v. Caton, 37 Mich. 199. &c. Sleeping Car Co., 139 Mass. 556 '° Gregory v. Piper, 9 Barn. & (plaintiff struck by a bundle con- Cress. 591. taining soiled clothing of his, which ^ Page v. Defries, 7 Best & S. 137. was thrown out near a house for the ^ Western Union Tel. Co. v. Sat- purpose of being washed). terfield, 34 111. App. 386. ==■ Fletcher v. Baltimore &c. R. Co., =■* Postal &c. Cable Co. v. Brantley, 168 U. S. 135; s. c. 42 L. ed. 411; 30 107 Ala. 683; s. c. 18 South. Rep. 321. 519 IThomp, Neg.] doctrine of respondeat superior, tion foreman employs a young man to assist him in driving them back and tells him to get a horse, and the young man takes his father's horse without the knowledge or consent of his father, and while so using him the horse is gored and injured by one of the cattle;*" or where a servant, employed to drive a team, stole hay to feed the team, and it did not appear whether the master had or had not furnished any hay for the purpose.*^ § 561. Further of the Liability of Master for the Trespasses of his Servant. — So, it has been held that, where a telegraph company directs its employes to cut from fixtures belonging to it, wires belong- ing to another, without notice to the latter, and without affording it reasonable opportunity of collecting and claiming such property, it is liable for the acts of such employes in wrongfully removing and con- verting the wire.*^ But there is a collection of cases which hold that a railway company is not liable for trespasses committed by an inde- pendent contractor of work on its line, or by the servants of such con- tractor, where the company does not retain control of the manner of doing the work, but merely contracts for certain results,*^ and there is one untenable decision which applies the same rule where the tres- pass is committed by the servants of the railway company in violating their orders and cutting timber outside the company's right of way.** But clearly if, in committing the trespass, the servant is acting within the scope of his duty, and not in order to effect some purpose of his own, the master will be liable irrespective of the question whether the trespass is to be ascribed to his malice or to his mere negligence.*^ § 562. liability of Master Where the Action is to Recover a Stat- utory Penalty for a Trespass. — The rule should be precisely the same where an action is brought to recover a statutory penalty for a tres- pass. Such statutes are founded in public policy, and if the circum- stances are such that the master would be responsible for the trespass at common law, then he ought to be answerable for the penalty given by the statute. But here, on the mistaken judicial theory that penal statutes are to be strictly construed, and that they are not to have the "Atchison &c. R. Co. v. Randall, 39 Ohio St. 461; Eaton v. European 40 Kan. 421; s. c. 19 Pac. Rep. 783. &c. R. Co., 59 Me. 520; Waltemeyer "Potulni v. Saunders, 37 Minn. v. Wisconsin &c. R. Co., 71 Iowa 517; s. c. 35 N. W. Rep. 379. 626; s. c. 33 N. W. Rep. 140. "Electric Power Co. v. Metropoll- "Pairchild v. New Orleans &c. R. tan Teleph. &e. Co., 75 Hun (N. Y.) Co., 60 Miss. 931; s. c. 45 Am. Rep. 68; s. c. 57 N. Y. St. Rep. 57; 27 427. N. Y. Supp. 93. "Ft. Worth &c. R. Co. v. Smith ^'•Steel V. Southeastern R. Co., 16 (Tex. Civ. App.), 25 S. W. Rep. C. B. 550; Hughes v. Railway Co., 1032. 520 LIABILITY OF MASTER FOR SERVANT'S WILLFUL ACTS. [2(1 Ed. full and fair operation intended by the legislature/® one court has held that, under a statute giving a penalty, it must be shown that he willfully violated the statute either by committing the forbidden act himself or by causing another to do it by his command or authority. The theory is that the statute gives the penalty against the aciual trespasser only, and that it can not be extended, by implication, so as to embrace another. "The liability," says the court, "arising from the relation of master and servant, is founded in policy; but the im- plication of authority in the servant, that would render the master liable in many cases in a civil suit, would not be sufiBcient to convict him in a criminal or penal prosecution."*^ § 563. liability of Master for Assaults Committed by his Serv- ants." — Whether the master will become liable for assaults committed by his servants upon third persons, must depend entirely upon a solu- tion of the question whether the servant in making the assault was acting within the general scope of his employment.*' If an assault was committed by a servant, when acting within the scope of his em- ployment, and in the supposed furtherance of his duty to his master, the master will be r.esponsible for it;*® otherwise, not.^" § 564. Illustrations of the Liability of Masters for Assaults by their Servants. — Where a passenger upon a railway train, who had no right to enter a sleeping car without paying extra fare, entered such a ear for the purpose of washing his hands, and was there assaulted by the porter of the car, knocked senseless upon the platform, and the "For observations of the author &c. R. Co. v. Fleetwood, 90 Ga. 23; upon this theory, see 3 Thomp. Pullman Palace Car Co. v. Campbell, Corp., § 4164. reported only in U. S. Sup. Ct, 38 "Cashing v. Dill, 2 Scam. (111.) L. ed. 1069; Smith v. Louisville &c. 460, 462; followed in Whitecraft v. R. Co., 95 Ky. 11;. s. c. 22 L. R. A. Vanderver, 12 111. 235; in Cushman 72; Texas &c. R. Co. v. Williams, 62 V. Oliver, 81 111. 444; and in Satter- Fed. Rep. 440; Southern &c. R. Co field V. Western Union Tel. Co., 23 v. Kennedy, 9 Tex. Civ. App. 232; 111. App. 446. Baltimore &c. R. Co. v. Barger, 80 a This section is cited in § 571. Md. 23; s. c. 26 L. R. A. 220; St " That the act must be committed Louis &c. R. Co. v. Dalby, 19 IlL bona Ude by the servant in the sup- 353, and cases cited; Goddard v. posed furtherance of his master's Grand Trunk R. Co., 57 Me. 202; business, and not on his own ac- Galena v. Hot Springs R. Co., 4 count merely, — ^Arasmith v. Temple, McCrary 371; Bryant v. Rich, 106 11 111. App. 39. Mass. 180. "Hamilton v. Third Ave. R. Co., "Porter v. Chicago &c. R. Co., 41 13 Abb. Pr. (N. S.) (N. Y.) 318; Iowa 358; Railroad Co. v. Latham, Priest V. Hudson River R. Co., 40 72 Miss. 32; McGilvray v. West End How. Pr. (N. Y.) 456; Wabash R. Street R. Co., 164 Mass. 122. See Co. V. Savage, 110 Ind. 156; Smith also note to Davis v. Houghtelin, 33 V. Louisville &c. R. Co., 124 Ind. Neb. 582; s. c. 14 L. R. A. 738; Rud- 394; Conger v. St. Paul &c. R. Co., geair v. Reading Traction Co., 180 45 Minn. 207; Fordyce v. Beecher, Pa. 333; s. c. 36 Atl. Rep. 859. 2 Tex. Civ. App. 29; East Tennessee 521 1 Thomp. Neg.] doctrine of respondeat superior. door closed and locked against him, where he was rescued from prob- able death by other passengers, — it was held by a court, which seems greatly affected in favor of railroad companies, that, as the relation of carrier and passenger did not exist between the Pullman Car Com- pany and the plaintiff, the question of the liability of the defendant must be tested by the rule of respondeat superior; that the servant was not acting within the line of his employment, and that the Palace Car Company was accordingly not liable. °^ The court proceeded upon the theory that the porter was a mere menial, having no police duties with reference to the car, but being employed merely to keep it clean and in order, and to wait upon passengers, and having no connection with the enforcement of the rules of the service, except to report vio- lation of them to the conductor. Upon this premise, Fenner, J., reasoned as follows: "Anything more completely outside of the 'functions in which he was employed' than the assault committed on the plaintiff could hardly be conceived. If it had been his duty forcibly to prevent the plaintiff from entering the car, or to put him out at all, and in performing this duty he had used wanton and need- less violence, inflicting injury, defendant might have been responsible. But he had no such duty or authority. * * * A person has a right to enter a bank for the purpose of collecting a check, and to pre- sent it to the paying-teller for payment ; but, if, on such presentation, the teller should leap over the counter and knock him down, surely such an act would not subject the bank to liability. So, one may law- fully enter a store and deal with any clerk with reference to the pur- chase of goods; but, if, on some dispute, the clerk should commit assault and battery upon him, the merchant would not be responsible therefor. Or if one, on lawful business, should knock at the door of any private house, and on asking the servant who answered the call for permission to see the master, the servant should assault and beat him, would the master be responsible ? Clearly, in all such cases, the lawfulness of the party's conduct and the fact that the injury was re- ceived while he was properly dealing with the servant as a servant, would not suffice to bind the master, unless the latter had expressly or impliedly authorized the act, or had been guilty of some fault in knowingly employing so dangerous a servant. We can not distin- guish this case from the one above indicated."^^ So, in that numer- ous class of cases where trespassers, upon railway trains, have been injured by being expelled therefrom, by the servant of the railway company, the test of the liability of the company has been to consider " Williams v. Pullman Pal. Car "' Williams v. Pullman Palace Car Co., 40 La. An. 87; s. c. 3 South. Co., 40 La. An. 87, 92. Rep. 631. 522 LIABILITY OF MASTER FOR SERVANT'S WILLFUL ACTS. fSd Ed. whether the servant who expelled the trespasser had authority so to do. A mere brakeman is deemed to have no such authority, unless the fact is affirmatively shown, and, therefore, it has been shown that a railway company is not responsible for the act of a brakeman in assaulting a boy who has climbed upon a coal train to steal a ride.^^ So where the plaintiff, a boy nine years of age, got upon a freight train for the same purpose and was kicked off by an employe, whose name and em- ployment could not be identified, it was held that there could be no recovery, on the ground that it did not appear who the employe was, nor what was the character of his employment or the scope of his authority. °* It must be borne in mind that, in these cases of the ex- pulsion of trespassers from the vehicles of a carrier, the governing principle is the rule of respondeat superior, which we are considering, and is entirely different from the principle which governs in the case of the wrongful expulsion or other maltreatment of a passenger by the servants of the carrier. Such maltreatment is a violation of the duty which the carrier has assumed of transporting the passenger in safety, and it is quite immaterial in respect of his liability by what kind or grade of servant the duty has been violated. On the clearest grounds, a railway company is not liable for an assault committed by its flagman stationed at a highway crossing, where he went outside of the limits of the highway and indulged in a personal altercation upon the company's right of way, from which the assault resulted. °° § 565. Liability of Master for Unlawful Arrests, False Imprison- ments, Malicious Prosecutions by his Servants. — The liability of the master, for unlawful arrests and false imprisonments committed by his servants, depends upon the same principle, — the test being to con- sider whether the servant, in making the arrest, is acting within the general scope of his authority and in the supposed furtherance of his duty towards his master, in which ease the master will be responsible if the act of the servant is adjudged illegal.'^* On the other hand, the '" Towanda Coal Co. v. Heeman, where the employer had expressly 86 Pa. St. 418. instructed the employe that he must " Bess V. Chesapeake &c. R. Co., not touch the machine, although he 35 W. Va. 492; s. c. 14 S. E. Rep. failed to collect the installment: 234. Feneran v. Singer Man. Co., 20 App. ">° Illinois &c. R. Co. v. Ross, 31 Div. 574; s. c. 47 N. Y. Supp. 284. 111. App. 170. One of the appellate " Eichengreen v. Louisville &c. R. courts of New York has held that a Co., 96 Tenn. 229; s. c. 31 L. R. A. sewing machine company is not 702; 34 S. W. Rep. 219; Warren v. liahle for assault and battery com- Dennett, 17 Misc. (N. Y.) 86; s. c. mitted by its employe while attempt- 39 N. Y. Supp. 830 ; Comerson v. nig to remove a machine sold by the Pacific Exp. Co., 48 Mo. App. 99 ; company on the installment plan. Staples v. Schmid, 18 R. I. 224; s. c. on failure of the purchaser to pay 19 L. R. A. 824; Kolzen v. Broadway the full amount of an installment, &c. R. Co., 1 Misc. (N. Y.) 148; 523 1 Thomp. Neg.J doctrine op respondeat superior, principal or master incurs no liability where, in making the arrest, the agent or servant acted outside the scope of his authority."'' The act of one private person in arresting another is, in general, an act of such extraordinary character that, when it is done by the servant of a master, the master will not be held liable for it, in the absence of an antecedent authority or a subsequent ratification."* But this author- ity need not, as has been held,"' be an express authority; but the cur- rent of judicial opinion is that it will be sufficient if it may be fairly implied from the nature of the employment.*" § 566. Further of the Liability of Masters for False Arrests, etc., by their Servants, — It has been held that the proprietor of a bar in a public house is not answerable in damages for an illegal arrest made by his manager in the absence of a direct authorization or a subse- quent ratification; since such an agent has no implied authority growing out of the nature of his employment to arrest disorderly per- sons. The arrest was made by reason of the fact that the person arrested had attempted to pass a foreign coin upon the bar-man ; but, before it was made, the mistake or fault had been rectified by the pay- ment of a good coin. The court proceeded upon the view that the manager had no implied authority to arrest the plaintiff for the offense, inasmuch as it had been rectified and his master's property was no longer in any danger. The arrest was, therefore, deemed to have been an act done upon his own responsibility, for the purpose of vindicating the law, and not in virtue of his employment as agent."* A manufacturing company has been held liable for the act of its su- perintendent, having general charge of its premises, its business, and its employes while at work, in directing the arrest without warrant, Gilllngham- v. Ohio River R. Co., tection. The railroad company was 35 W. Va., 588; s. c. 14 L. R. A. held liable for false imprisonment: 798; Palmeri v. Manhattan R. Co., Mulligan v. New York &c. R. Co., 133 N. Y. 261; s. c. 16 L. R. A. 136; 129 N. Y. 506; also note to same, 14 Central R. Co. v. Brewer, 78 Md. L. R. A. 791; Stranahan Catering 394; s. c. 27 L. R. A. 63; Atchison Co. v. Coit, 36 Ohio L. J. 327. &e. R. Co. V. Henry, 55 Kan. 715; "Mafit v. Chicago &c. R. Co., 57 s. c. 25 L. R. A. 465. In the follow- Kan. 912; s. c. 48 Pac. Rep. 1116. ing case, the evidence was held in- °° National Bank of Commerce v, sufficient to warrant the court in Baker, 77 Md. 462; s. c. 26 Atl. Rep. submitting to the jury the question 867. whether the agent was acting ™ National Bank of Commerce v. within the scope of his employment Baker, -siipra; Carter v. Howe &c, in causing the arrest of the plaint- Co., 51 Md. 298. iff: National Bank of Commerce v. ""5 Thomp. Corp., § 6312, and cases Baker, 77 Md. 462. In another case cited; 4 Id., | 4874. See, as pointing the ticket agent of the defendant out a difference of judicial opinion railway company took the plaintiff's on this question, 5 Thomp. Corp., money from him, supposing it to be §§ 6387, 6388. counterfeit, for the purpose of aid- "Abrahams v. Deakin (C. A,), ing the police in his arrest and de- (1891), 1 Q. B, 516. 524 LIABILITY OF MASTER FOR SERVANT'S VriLLFUL ACTS. [2d Ed, on a charge of disorderly conduct committed several hours before, of a walking delegate of a trade union, whose conduct consisted in unlaw- fully entering the factory, and attempting by threats to induce the employes to quit work."^ The distinction has been taken in other cases between the act of a servant in making or causing an arrest for the purpose of vindicating the law, and the same act done for the pur- pose of protecting his master's property. A servant, it has been rea- soned by a judge of great eminence, has an implied authority to do all those things that are necessary for the protection of the property en- trusted to him by his master, or for the fulfillment of the duty which he is required to perform, but he has no implied authority to punish for a supposed infringement of the law."^ § 567. Further of this Liability.^ — On somewhat the same lines of reasoning, it has been held that the subordinates and clerks of a retail store have no implied authority to call in a policeman and arrest a person upon their mere suspicion of such person having stolen goods from the store and secreted them about his person. The theory of the court was that as the master himself would have no right to make an arrest under such circumstances, an authority to do so could not be implied in his servants from the mere nature of their employments ;"* and the same doctrine has been applied in the case of an arrest made under similar circumstances by an employe of such establishment, known as a "floor- walker.'"*^ But this doctrine was, on a subsequent appeal, repudiated, and a judgment awarding damages was affirmed. The court now placed the case upon the correct ground in the opinion by Van Brunt, P. J., who said that the case, in principle, was like that where a carrier invites a passenger to place himself under the protec- tion of the servants of the carrier, in which case he becomes responsi- ble for a willful assault made by one of his servants upon the passen- ger, irrespective of the question whether it was made within or with- out the line of his duty.®" "In like manner," said he, "the store- keeper invites the public to enter his premises, and to subject them- selves to the custody and control of his subordinates; and, by parity of reasoning, he should be held responsible for the brutalities of such subordinates, even where they are not committed within the strict line of his employment. There seems to be no distinction in principle •= Smith V. Munch, 65 Minn. 256; a This section is cited in § 598. s. c. 68 N. W. Rep. 19. " Mali v. Lord, 39 N. Y. 381. "Allen V. London &c. R. Co., L. "Mallach v. Ridley, 43 Hun (N. R. 6 Q. B. 65, 69, per Blackburn, J. Y.) 336. See also Bank of New South Wales °° As to this doctrine, see the title V. Owston, 4 App. Cas. 270. Carriers of Passengers in Vol. III. 525 1 Tliomp. Neg.j doctrine of respondeat superior. between the cases."" An excellent illustration of the doctrine under consideration is found in a case where a railroad company employs certain detectives to pursue and arrest a man who has embezzled money from the company, and they arrest the wrong man. The rail- road company was liable in damages."* § 568. Where the Servant Making the Arrest is also a Police Offi- cer.^ — Some nice distinctions have arisen, where the person making the arrest occupied at the same time the position of a police officer and a salaried employe of the proprietor of a particular establishment or building, — an arrangement which often subsists between private persons and the public authorities. Here, if the arrest is directed expressly or impliedly by the private owner, he will not be relieved from legal responsibility therefor, from the fact that the person to whom he gives the direction is a police officer. On the other hand, it is necessary, in such a case, carefully to determine whether the arrest is made in virtue of the private employment of the party making it, or _ji virtue of his character as a public officer. Thus, it was held that an action against a corporation operating a public market for a false arrest by a man in its employ could not be maintained where the com- pany ^had given him no authority to make arrests, but where he made the particular arrest in virtue of his character as a special officer of the police force of the city and not as agent of the market company."" There is an isolated decision to the effect that where special statutory power is given to a corporation to make arrests in certain cases, the corporation will not be liable for unlawful arrests and detentions made by its agents in other cases, — the court proceeding upon the theory that such arrests and detentions being outside the powers of the cor- poration are necessarily outside the powers of the agents.'" But this " Mallach v. Ridley, 15 N. Y. St. within the scope of his authority. Rep. 4; s. c. 24 Abb. N. Cas. 172; 9 on a charge of attempting to pass N. Y. Supp. 922. For other reports counterfeit money: Eichengreen v. of this case on former appeals, see Louisville &c. R. Co., 96 Tenn. 229; 36 Hun (N. Y.) 643 mem.; Id., 645 s. c. 31 L. R. A. 702; 34 S. E. Rep. mem.; 43 Hun (N. Y.) 640 mem. 219. No difference if the servant »' Harris v. Louisville &c. R. Co., acted maliciously and made himself 35 Fed. Rep. 116. That an employe liable to a criminal prosecution, if left in charge of a restaurant in the the act was within the scope of his absence of his employer, has implied employment: Lloyd v. Nelson Busi- authority to cause the arrest of a ness College, 13 Ohio C. C. 358; s. c. person who refuses to pay for a 7 Ohio Dec. 318. meal, making the employer liable a This section is cited in § 598. for the arrest, — see Warren v. ^ Wells v. Washington Market Co., Dennett, 17 Misc. (N. Y.) 86; s. c. 8 Mackey (D. C.) 385; s. c. 19 Wash. 39 N. Y. Supp. 830. Railroad com- L. Rep. 52. pany, when liable for the false im- " Hern v. Iowa State Agrl. Soc, prisonment of an innocent person, 91 Iowa 97; s. c. 24 L. R. A. 655; by a railroad detective, acting 58 N, W. Rep, 1692. 526 LIABILITY OF MASTER FOR SERVANT S WILLFUL ACTS. [2d Ed. is a mere hallucination entirely out of line with modern authorities. It asserts a principle which, if generalized, would destroy the liability of corporations altogether for what are called ultra vires torts, since no corporation is empowered by law to commit a tort. § 569. Liability of Master for Libels Published by His Servant. — This depends upon the same principle which governs the liability of the master for assaults and unlawful arrests. The test is to consider whether the publication of the libel was expressly authorized or was within the general scope of the business of the agent or employe who published it, or was subsequently ratified: if so, the principal or em- ployer, whether a natural person or a corporation, is liable ; if it is not, then there is no liability.'^ § 570. Liability of a Principal for the Act of his Agent in Boy- cotting a Third Person. — That what is called boycotting, which con- sists of a criminal conspiracy to injure another in his trade or busi- ness, is an actionable wrong, has been decided in a good many modern cases.''^ There can be no possible doubt that if a corporation starts "Henry v. Pittsburgh &c. R. Co., 139 Pa. St. 289; s. c. 27 W. N. C. 322; 21 Pitts. L. J. (N. S.) 287; 21 Atl. Rep. 157; 48 PWla. Leg. Int. 166. See 5 Thomp. on Corp., § 6310; Philadelphia &c. R. Co. v. Qulgley, 21 How. (U. S.) 202; Howe Machine Co. V. Souder, 58 Ga. 64. "Angle V. Chicago &c. R. Co., 151 U. S. 1, 13; Curran v. Calen, 152 N. Y. 33; Rice v. Manley, 66 N. Y. 82; Benton v. Pratt, 2 Wend. (N. Y.) 385; Temperton v. Russell (1893), 1 Q. B. 715 (closely in point) ; Jones v. Stanley, 76 N. C. 355, 356; Haskins v. Royster, 70 N. C. 601 ; Walker v. Cronin, 107 Mass. 555; Morasse v. Brochu, 151 Mass. 148; May v. Wood, 172 Mass. 11 (fully recognizing the doctrine of the text, but holding the declaration insufficient) ; Rice v. Albee, 164 Mass. 88 (actionable to persuade a third person, by slanderous words, not to enter into a contract with the plaintiff, but the declaration must set out the words spoken and allege that they were false) ; Bowen V. Hall, 6 Q. B. Div. 333, 337; Lum- ley V. Gye, 2 EI. & Bl. 216; Green v. Button, 2 Cr. Mees. & R. 707; Bout- well V. Marr (Vt), 43 L. R. A. 803; Reg. V. Rowlands, 17 Ad. & El. (N. S.) 671; Doremus v. Hennessey, 176 111. 608; s. c. 43 L. R. A. 797; Gore V. Condon, 87 Md. 369; s. c. 40 L. R. A. 382; Jackson v. Stanfield, 137 Ind. 592; s. c. 23 L. R. A. 233; Lucke V. Clothing Cutters' &c. Assembly, 77 Md. 396; s. c. 19 L. R. A. 408; Old Dominion Steamship Co. v. Mc- Kenna, 30 Fed. Rep. 48 (Judge Brown) ; s. c. and much better re- ported, 18 Abb. N. C. 262; Carew V. Rutherford, 106 Mass. 1 (action sustained for conspiracy to extort money by inducing workmen to leave their employment) ; Garrett v. Taylor, Cro. Jac. 567; Gregory v. Brunswick, 6 Man. & Gr. 205; Dalz V. Winfree, 80 Tex. 400; Olive v. Patton, 7 Tex. Civ. App. 630; s. c. 25 S. W. Rep. 426; International &c. R. Co. V. Greenwood, 2 Tex. Civ. App. 76; Chipley v. Atkinson, 23 Fla. 206; Bixby v. Dunlap, 56 N. H. 456; Mapstrick v. Ramje, 9 Neb. 390; Tarleton v. McGawley, Peake 205 (action sustained against the master of a vessel for purposely fir- ing a cannon at negroes and thereby preventing them from trading with plaintiff) ; Rafael v. Verelst, 2 Wm. Black. 1055 (action sustained for procuring a free and independent sovereign prince, by awe, fear, and other influences contrary to his in- clination, to imprison the plaintiff) ; Gunter v. Astor, 4 J. B. Moore 12 (action sustained for damages for 527 1 Thomp. Neg.] doctrine of respondeat superior. out to boycott another person or corporation, as it can perform the act only through its servants, it is liable for whatever they do, in pursu- ance of what in the criminal law is called, "the common design ;" and they are liable for the acts of each other, done in pursuance of the same design. It has been held, however, that a railroad company is not liable for the language and conduct of one of its foremen, author- ized to employ and discharge laborers in the service of the company,' by which the employes of the company are kept from trading with a grocer, thus injuring his business, — such language and conduct being wholly outside the scope of his employment. ^^ § 571. Liability of Master for Homicide Committed by Servant. — The courts have found great difficulty in holding the master liable for homicides intentionally committed by his servant with a deadly weapon, in the absence of an express command so to act on the part of the master. But, on the other hand, where, as often happens, death results unintentionally, by the servant who uses unlawful force in executing his master's orders, or otherwise acting in the line of his duty or in the general scope of his employment, — the master will be clearly liable ; and the circumstance that the degree of force employed was so great as to result in death will not excuse his liability, but, unless the measure of damages is iixed by statute, will rather tend to aggravate the damages.'* Eeturning to the case where the homicide enticing away the plaintiff's serv- Mass. 555; Mapstrlck v. Ramje, 9 ant, — one of a numerous class of Neb. 390 (journeymen tailors, strik- such actions) ; Keeble v. Hickerin- ing and leaving work unfinished, gill, 11 East 464 (sustaining an ac- liable to actions for damages tion for discharging guns, and grounded on conspiracy). So strong thereby frightening away ducks has been the judicial condemnation from plaintiff's decoy pond) ; Lally of such conduct that an authorita- T. Cantwell, 30 Mo. App. 524 (action tive court has held that if a corpora- sustained for making false state- tion engages in such acts, it is such ments, whereby the plaintiff was an offense against the State as calls discharged from his employment for the forfeiture of its franchises: and prevented from procuring other Hartnett v. Master Plumbers' Sup- employment) ; Hewitt V. Ontario &c. ply Asso., 169 Mass. 229; s. c. 38 R. Co., 44 Up. Can. Q. B. 287 (hold- L. R. A. 194. ing that an action lies for fraudu- "Graham v. St. Charles Street R. lently persuading another to break Co., 47 La. An. 1656; s. c. 49 Am. St. his contract with the plaintiff); Rep. 436; 18 South. Rep. 707. Ryan v. Burgher &c. Brewing Co., " Numerous cases of this kind will, 13 N. Y. Supp. 660. Especially is it be given in a future chapter refer- true when several persons mali- ring to the expulsion of passengers ciously or unlawfully combine and and trespassers from the vehicles of conspire to injure one in his busi- public carriers, in the title Carriers ness or property, and do acts pro- of Passengers, in a subsequent vol- ducing such a result, he has a cause ume. In one case it was held that of action against them for the re- the general manager of a street rail- suiting damage: Rice v. Albee, 164 way company was not liable for an Mass. 88; Morasse v. Brochu, 151 injury to an alderman by the accl- Mass. 567; Tasker v. Stanley, 153 dental discharge of a gun, held by Mass. 148; Walker v. Cronan, 107 the manager for the purpose of in- 528 LIABILITY OP MASTER FOR SERVANT'S WILLFUL *.CTS, ^2d Ed. is deliberate, intentional, and accomplished with a deadly weapon, the courts have, in general, found themselves unable to hold the master liable for such an act in the absence of an express antecedent author- ization. They have been impressed with the view that an authority to commit such an act can scarcely be implied in any case from the nature of a lawful employment, even from the employment of a servant as a watchman to guard the property of the master. Thus, where the owners of a brewery employed an armed watchman to guard their property and to prevent breaches of the peace thereat, and the watchman pursued and shot and killed a disorderly person, it was held that the shooting was not within the scope of his employment and that the defendants were not liable in civil damages therefor. The court laid stress upon the view that as the deceased was retreating from the brewery at the time when the fatal shot was fired, it conclusively ap- peared that it was not fired for the purpose or with the intention of protecting the brewery ; and that it was hence outside the line of the duty of the watchman.'"' Closely similar to this is a case which arose upon a demurrer to a petition in an action for damages, which alleged, in substance, that a proprietor employed a watchman to guard certain feed belonging to him upon his premises and to seize and detain any person who might be found disturbing such feed ; and that the person so employed in attempting to seize and detain the deceased, negligently, carelessly and unlawfully shot and killed him. Here, as there was no averment that the deceased was at the tiittie molesting the feed, or at- tempting to do so, it was held that the petition did not show that the act of shooting and killing him was within the scope of the watchman's employment.'^ So, where a person was employed to keep the lamps guarded and structure in the street ligh.ted, and to keep boys away from the lamps, and threw stones at some boys playing around the structure, killing one of them, — ^-it was held that this was not within the scope of his employment, and that his employer was not liable in damages for the death of the boy.'^' timldating the latter, while unlaw- "Golden v. Newbrand, 52 Iowa fully engaged in removing the 59. street railway track : Shriver v. " Davis v. Houghtelin, 33 Neb. Bean, 112 Mich. 508; s. c. 4 582; s. c. 14 L. R. A. 737; 50 N. W. Det. L. N. 109; 71 N. W. Rep. Rep. 765. 145, a holding that did not call " Kaiser v. McLean, 20 App. Div. f&r the application of the rule of 326; s. c. 46 N. Y. Supp. 1038. This respondeat superior, but which pro- case does not seem to have been well ceeded upon the ground that it is decided. But another case, some- not unlawful for the rightful occu- what similar to the foregoing, seems pier of land to arm himself and to involve an aberration. It suffl- threaten to shoot trespassers for the ciently appeared, from the com- purpose of intimidating them; and plaint in an action for damages, if, in so intimidating one of them, that the defendants employed cer- be accidentally — O, yes! — shoots tain servants and armed them for one of them, he is not liable. the purpose of protecting the prem- VOL. i. THOMP. NEG. — 34 529 1 Thomp. Neg.] doctrine of respondeat superior. § 572. Further of liability of Master for Homicides by Servants.— It is entirely clear that the fact that an employment is unlawful in such a sense as makes the employer a confederate with the employe in a criminal enterprise, does not have any tendency to diminish the lia- bility of the employer for the torts of the employe done within the scope of the employment, but would rather operate to increase the damages where not liquidated by statute." In another modern case it was held, on two opposing states of evidence, that if the conductor of a railway company, on discovering that a car belonging to the com- pany had been broken open, and believing that it had been done by a certain person, coolly walked up to him as he was standing quietly at the station and shot him down without a word, — such an act would' be murder entirely beyond the scope of any employment or function of the conductor, and for which the company could not be held responsi- ble. But if, on the other hand, the person shot was detected in hav- ing broken open one of the cars of the company in the night-time, and, when discovered, jumped out of the ear and ran, and refused to stop when halted, and was thereupon fired at and shot by an employe of the company, — the joint and contributing fault of the criminal would bar a recovery in a civil action for damages on account of his death.''' The court emphasized the view that in neither event could ises against all comers and claim- ants and against the deceased, the lawful claimant of a portion there- of; and that one of these servants shot and killed the deceased while he was in the act of peaceably and lawfully proceeding through the premises, the servant of the de- fendant claiming that in so doing he wa^ committing a trespass upon the rights of the defendant. The court proceeded upon the view that no employment for the purpose of killing was alleged in the petition, and upon the further view that to render the employer liable the em- ployment must be lawful and the business lawful. Both grounds would seem to be an obvious mis- take. The defendant employed his servant to restrain the deceased from coming upon certain premises, and armed him with a deadly weapon for that purpose, and, in the execution of this employment, in killing the deceased, he had merely used excessive force in the execu- tion of the orders of his master, — in which case judicial authority holds the superior liable: Ante, § 563. The further proposition that, to render an employer liable for 530 the torts of his employ^, the em- ployment must be lawful and the business lawful, is a wild dream. It proceeds upon the following fan- tastic reasoning in the opinion of the court: "The wrong and fraud upon the government and the public by taking illegal possession of a large tract of the public domain, preventing its occupation, settle- ment, and sale by and to those who had legal right to occupy under the laws of Congress, and maintaining such possession by force and vio- lence, resulting in the taking of life, can not be regarded as the prose- cution of a lawful business and one in which the relation of master and servant could have existence. Un- der such circumstances all are prin- cipals, confederates, in the prose- cution of a criminal enterprise, and all jointly, or each individually, may be held criminally responsible for any wrong perpetrated." Sagers v. Nuckolls, 3 Colo. App. 95, 105; s. c. 32 Pac. Rep. 187. " Sagers v. Nuckolls, 3 Colo. App. 95; s. c. 32 Pac. Rep. 187. ™Candif£ v. Louisville &c. R. Co., 42 La. An. 477; s. c. 7 South. Rep. 60L LIABILITY OP MASTER FOR SERVANT'S WILLFUL ACTS. [2d Ed. the act of the killing be regarded as necessary for the protection of the property of the railway company, for which reason it could not be re- garded as being within the scope of the employment of the person doing the act. On the other hand, it has been held, under a statute, making all railroad companies liable for damages done by any person in their employment and service, unless their agents have exercised all ordinary care and diligence, that a railroad company is liable for the act of its agent in killing a man who comes into his ofSce for the transaction of business pertaining to his agency, — the agent being subject to fits of homicidal mania and the company having employed him knowing that faet.^" So, in a case governed by common law principles, a railway company was held liable for the act of its night watchman employed to guard its station ground and cars, in shooting and wounding a person whom he found near one of the cars and whom he suspected of a purpose to break into it and steal merchandise from it. The court regarded it as a case where the watchman was expressly or impliedly under the duty of using force to prevent larceny of the goods in the hands of the railroad company, and where, acting within the scope of his employment, he had merely used excessive force.^^ In like manner, where a watchman was employed to guard a railroad bridge, and to keep trespassers from coming upon it, it was held that the company was liable for his act in shooting and killing a person who had come upon the bridge for the purpose of expelling him from it.*^ And, it is obviously a sound conclusion, that where a railroad company arms its own employes for the purpose of taking forcible possession of a railroad and property of another such company, and while so doing one of its armed employes shoots and wounds an em- ploye of the latter company, the former company will be answerable in damages for the injury and will not be allowed to plead that the trespass was the individual act of its servants or beyond its powers as a corporation.*' § 573. Application of these Principles to the Case of a Malicious Tort of a Servant while Driving his Master's Wagon. — A leading case, announcing exemption from liability of a master for the malicious tort of a servant, holds that a master is not liable for the act of his servant in willfully driving the master's carriage against a third per- son without the direction or assent of the master ; but that he is liable for such an act arising from the negligence or unskillful driving of ^ Christian v. Columbus &c. R. Co., '' Haehl v. Wabash R. Co., 119 Mo. 79 Ga. 460: s. c. 7 S. E. Rep. 216. 325; s. c. 24 S. W. Rep. 737. * St. Louis &c. R. Co. V. Hackett, -* Denver <^c. R. Co. v. Harris, d Si Ark. 381; s. c. 24 S. W. Rep. 881. N. M. 109; s. c. affirmed 122 U. S. 631 1 Thomp. Neg.] doctrine of respondeat superior. the servant.^* In a modern case the owner of an "express wagon" employed a person to drive it, and entrusted it to him generally to be used at his discretion in doing such business as the servant could se- cure in the way of employment for the wagon. While thus employed the servant, having delivered a trunk for a customer, on his return, got a load of poles for himself, and, while taking them home, negli- gently drove over and injured the child of the plaintiff. It was held that as the bailment of the horse and wagon was a general one the servant was acting within the scope of the bailment, although he was hauling his own property; and consequently that the master was liable.'^ So, where the owner of a cab, let it out to a cabman to be used entirely at his discretion during the day, for the purpose of ply- ing for hire, for which the cabman was to pay a stated sum, and all above that sum was to be his own perquisite, and on returning from a day's business he deviated from the journey a little to purchase some snuff for himself, and afterwards, driving to the stable drunk, and furiously, he ran upon end injured the plaintiff, it was held that the owner of the cab must pay damages. As the cab had been entrusted to the driver to be used entirely at his own discretion he was not deemed to have deviated from the general purpose of the bailment.*" The stress of the case lies in holding him to have been the servant of the owner of the cab at all. It would seem that he was a mere renter of the cab for hire and that the responsibility for any misconduct in the use of it rested upon him individually, and not upon the lessor of the cab. In a somewhat similar case, a corporation, engaged in man- ufacturing and selling sewing machines, furnislied a wagon to a can- vasser who was to sell their machines on a commission and who was to use the wagon exclusively in the business of the company and was himself to provide a horse and harness. The person, so employed, negligently ran over and injured the plaintiff. It was held that under such an agreement, the canvasser was a servant of defendant, and that the latter was liable in damages for his torts committed while in the discharge of its business.*^ But, it must be conceded in such a 597; 7 Sup. Ct. Rep. 1288. See also servant is, of course, undisputed: Hussey v. Norfolk &c. R. Co., 98 Lovingston v. Bauchens, 34 111. App. N. C. 34; s. c. 3 S. E. Rep. 923; 544; Moriarity v. Zepp, 42 N. Y. St. Tolchester &c. Improvement Co. v. Rep. 824; s. c. 17 N. Y. Supp. 28; Steinmeier, 72 Md. 313; 20 Atl. Rep. Smith v. Consumers' Ice Co., 52 N. 188; Buffalo Lubricating Oil Co. v. Y. Super. Ct. 430; Schaefer v. Oster- Staadard Oil Co., 106 N. Y. 669; brink, 67 Wis. 495; s. c. 58 Am. Rep. s. c. 13 N. B. Rep. 825. 875. "McManus v. Crickett, 1 Bast '"Mulvehill v. Bates, 31 Minn. 364; 106; s. c. 2 Tbomp. Neg., 1st ed., s. c. 47 Am. Rep. 796. 865. That the master is liable * Venables v. Smith, 2 Q. B. Div. where the injury proceeds from the 279. negligence or unskillfulness of the "Rahn v. Singer Manuf. Co., 26 532 LIABILITY OF MASTER FOR SERVANT'S WILLFUL ACTS. [2d Ed. case that if the servant employs his master's vehicle for some purpose wholly independent of the orders which he has received from his master, in order to accomplish some purpose of his own or of a third person, he is not acting within the scope of his employment and the master will not be liable for any damage done by the use of the vehicle when the servant is so acting.*^ § 574. Liability of Master under Statute against Cruelty to Ani- mals. — Where an action is maintained against a master, for cruelty to an animal by his servant, under a statute denouncing a penalty for such misconduct, it must entirely appear that the master was present or commanded the act to be done, or had some knowledge of it at the time, since there is no presumption in the absence of evidence con- necting the master with the particular act of the servant that he either authorized it or approved of it.'* Fed. Rep. 912. That the owner of a wagon driven about a city to serve customers, is not liable for the act of his driver in temporarily abandoning the wagon to go into a house in the line of his service, in consequence of which a child climbs on the wagon and receives an injury when it is started; Chicago Consol. Bottling Co. V. McGinnis, 51 111. App. 325. »*Venables v. Smith, 2 Q. B. Div. 279, per Cockburn, J. Where a servant recklessly and in disregard of repeated warnings of the by- standers, drove his team over a boy who was riding on a hand sled at- tached to another wagon, it was held that he was guilty of negligence for which his employer (?) was liable, although, in the first instance, the boy was negligent in placing him- self in the position of danger: Post V. Olmsted, 47 Neb. 893; s. c. 66 N. W. Rep. 828, A servant approached a street crossing when it was almost dark, driving at such a rate of speed that he could not stop in time to prevent an accident to one who was rightfully on the crossing. It was held that he was guilty of such negligence as rendered his master liable to the person injured: Canton v. Simpson, 2. App. Div. (N. Y.) 561; s. c. 38 N. Y. Supp. 13. A servant negligently drove his mas- ter's wagon in front of an approach- ing train at a railway crossing; the wagon was struck by the train and some of its contents were thrown against a bystander, who was him- self free from contributory negli- gence, by which he was killed. It was held that the owner of the wagon was liable to pay damages for the killing of the bystander: Taylor v. Long Island R. Co., 16 App. Div. 1; s. c 44 N. Y. Supp. 820. "* State V. Society, 47 N. J. L. 237. 533 1 Thomp. Neg.j doctrine of respondeat superior. CHAPTER XVII. WHO ARE AND WHO ARE NOT SERVANTS OR AGENTS WITHIN THE RULE OP RESPONDEAT SUPERIOR. Section 578. Meaning of the word "servant." 579. Tests by which to determine whether the relation of mas- ter and servant exists. Evidence to prove the relation- ship. Status of one hiring a team and a driver to a third per- son. 582. Livery-stable keeper and coach- man. Ship-owner or master and char- terer. Ship-owner or master and pilot where the pilotage is compul- sory. Lessor and lessee. Vendor and vendee. Receivers of railways. Assistants, deputies, and agents of public officers. 589. Master not liable for negli- gence of third persons called in by his servants to assist them. 590. Cases qualifying this doctrine. 591. When servants justified in call- ing in the aid of third per- sons so as to make the mas- ter liable for their acts. 592. Where the servant has author- ity to employ another serv- ' ant. 580. 581. 583. 584. 585. 586. 587. 588. Section 593. Whether master liable to per- sons temporarily called in to assist his servants. Illustrations of this doctrine. Further illustrations. Where one railroad company uses the track, facilities, or servants of another. Two railroad companies em- ploying a common servant. Public officers employed by pri- vate persons. Liability of master furnishing servant to third person. Other illustrations of the fore- going doctrine. Public officers employing pri- vate agents to discharge pub- lic duties. Liability of two municipal cor- porations for negligence of laborer on an inter-urban bridge. Superintendent and inmates of public hospital. 604. Servants at public bath houses who receive their compensa- tion from the customers. Penitentiary lessee or contract- or and convict. Carrier and shipper of diseased cattle. 594. 595. 596. 597. 598. 599. 600. 601. 602. 603. 605. 606. § 578. Meaning of the Word "Servant." — The maxim used to for- mulate the doctrine we are considering, respondeat superior, implies that the person sought to be charged must stand in the relation of superior to the person doing the wrongful act.^ The term "servant/' •Blackwell v. Wiswall, 24 Barb. 534 (N. y.) 355. ■WHO ARE AGENTS OR SERVANTS. [2d Ed. as used in this sense, is not, however, restricted to persons engaged in menial, or even in domestic, service. It is applicable to any relation in which, with reference to the matter out of which an alleged wrong has sprung, the person sought to be charged had the right to control the action of the person doing the alleged wrong; and this right to control appears to be the conclusive test by which to determine whether the relation exists.^ § 579. Tests by which to Determine whether the Eolation of Mas- ter and Servant Exists. — The right to control the conduct of another implies the power to discharge him from the service or employment for disobedience ; and, accordingly, the power to discharge has been re- garded as the test by which to determine whether the relation of mas- ter and servant exists.^ Negatively, it is said, that where the person sought to be charged with liability for the wrong of another, whether such person be a natural or an artificial person, if such person is not vested with the power of selection, that is, if he had no power to ap- point the particular servant and did not appoint him, — the maxim respondeat superior has no force.* In another case^ it was said that "he who had selected him as his servant, from the knowledge of, or belief in, his skill and care, and who could remove him for miscon- duct, and whose orders he was bound 'to receive and obey,' stood in the relation of master to the person doing the act complained of."® It is not necessary that he should have been under any general employment of the defendant, nor that he should be under any special engagement of service to him, or entitled to receive compensation from him di- rectly. It is enough that, at the time of the accident, he was in charge of the defendant's property by his assent and authority, engaged in his business, and, in respect to that property and business, under his con- trol.' "The fact that there is an intermediate party, in whose general employment the person whose acts are in question is engaged, does ' Pawlet V. Rutland &c. R. Co., 28 Packet Co., S Ad. & E. 835 ; Dalyell Vt. 297; McGuire v. Grant, 25 N. J. v. Tyrer, El. Bl. & El. 906; Blake L. 357. Where a committee-man of a v. Ferris, 5 N. Y. 48. municipal corporation orders a law- * Dooley v. Sullivan, 112 Ind. 450; ful act to be done, and the work is s. c. 11 West. Rep. 819; 14 N. E. done so as to occasion an actionable Rep. 566; Brow v. Boston &c. R. injury, by workmen under the im- Co., 157 Mass. 399; s. c. 32 N. B. mediate superintendence and direc- Rep. 362. tion of another olficer of the cor- ^ Quarman v. Burnett, 6 Mees. & poration, not appointed or controlled W. 509. by the committee-man, the corpora- ° To the same effect, see Morgan tion is not liable for the injury re- v. Bowman, 22 Mo. 538; Hilliard v. suiting from the doing of the work: Richardson, 3 Gray (Mass.) 349; McGuire v. Grant, supra. s. c. 2 Thomp. Neg., 1st ed., 868. "Michael v. Stanton, 3 Hun (N. 'Kimball v. Cushman, 103 Mass. Y.) 462; s. c. 5 N. Y. S. C. (T. & 194; Wood v. Cobb, 13 Allen (Mass.) C.) 634; Fenton v, Dublin Steam 58. 535 1 Thomp. Neg.] doctrine of kespondeat superior. not prevent the principal from being liable for the negligent conduct of the subagent or under-servant, unless the relation of such inter- mediate party to the subject-matter of the business in which the under-servant is engaged be such as to give him exclusive control of the means and manner of its accomplishment, and exclusive direction of the persons employed therefor."^ § 580. Evidence to Prove the Eelationship. — The fact of agency, as well as the powers of an agent, may be proved by facts and circum- stances, just as any other fact may be proved." So, it is not necessary to prove an express contract of employment in order to establish the relation of master and servant, but the relation may be implied from circumstances, — as where the person committing the wrong is at the time in the actual conduct of the business of another with his seem- ing consent, in which case that other will be responsible for the wrong done by the former within the scope of the apparent employment, on the ground that he has induced the belief that such person is his servant and has led another to act upon that belief to his injury.^" § 581. Status of One Hiring a Team and a Driver to a Third Per- son.^ — If A. hires his team and driver to B., to work for B., and, during the bailment, a third person is injured through negligence of the driver, A. will be liable to make good the damages, and not B.;'^ and it is immaterial that the person hiring the team and driver has expressly stipulated for the service of the particular driver. But if the driver, so furnished by the owner of the team, becomes sick, and the hirer substitutes his own servant in his place, then the hirer will be answerable to the owner for any injury to the team through the ' Kimball v. Cusliman, 103 Mass. as to charge him with liability for 194, per Wells, J. the driver's negligence: Stables v. "4 Thomp. Corp., §§ 4881, 4882, Eley, 1 Car. & P. 614. A. and B. 4883, 4884, 4885, 4886, 4887, 4891, were jointly interested in the profits 4893, 4894, 4896, 5177. of a common stage wagon, but by a " Growcock v. Hall, 82 Ind. 202. private agreement between them- The ownership of the property selves each undertook the conduct- which is in the custody of the serv- ing and managing of the wagon with ant at the time when the wrong is his own driver for specified dis- committed by him, is an eviden- tances. Notwithstanding this agree- tiary fact upon the question whose ment, they were held jointly and servant the custodian was at the severally liable to third persons for time, though, of course, it is not a the negligence of their drivers conclusive test. Sloane v. Elmer, 1 throughout the whole distance: Hun (N. Y.) 310 (reversed, 64 N. Y. Waland v. Elkins, 1 Stark. N. P. 201); Hart v. New Orleans &c. R. 272. Co., 1 Rob. (La.) 180. Permitting a This section is cited in §§ 599, one's name to remain over the door 604. of a house of business, and on a "Crockett v. Calvert, 8 Ind. 127; cart, has been held evidence that he Joslin v. Grand Rapids Ice Co., 50 held himself out as the owner of the Mich. 516; s. c. 45 Am. Rep. 54. cart and master of the driver, so 536 WHO ARE AGENTS OR SERVANTS. [2d Ed. negligence of the servant so substituted.^- A person employed and paid by a contractor, as driver of a horse and wagon, which, together with the driver, the contractor lets by the day to a city, to be used in the work of paving a street and who has the entire management of the horse as to the manner of driving him, and whose duty it is to see that he is properly shod, is the servant of the contractor in so driving the horse and having him shod, and, for an injury to a third person, caused by his negligence in these respects, the contractor is liable.^ ^ If one agrees to furnish another with a team and a suitable driver, and he furnishes an incapable driver, he must bear all loss springing from the driver's incapacity, not necessarily on the ground of re- spondeat superior, but on the ground of not having complied with his contract to furnish a capable driver.^* But where A. hires his team and driver to B. under a contract by which B. has as much control over the driver as though he had originally hired his team, it has been held that the driver is, for the time being, the servant of B. and not the servant of A., and B. and not A., must answer for damages caused by negligent driving. ^^ So, where a district telegraph company fur- nishes drivers on special occasions to drive the teams of persons apply- ing for such service it become answerable for the negligence or incom- petency of the drivers which it thus furnishes, and where a person applied for and received a driver from such a company to drive his team and through the negligence of the driver the team ran away and sustained damage, an action for such damage was sustained against the company. ^^ So, where certain fish-dealers employed a truckman, for a certain sum, to deliver fish to their customers on each Friday, and he, in executing the commission, selected his own route and con- sulted his own convenience ; and, being sick, instructed his servant to get help if necessary, and his servant accordingly employed a servant of the fish-dealers themselves, and while so acting this servant drove against the plaintiff and injured him, — it was held that the servant of the fish-dealers, for the time being, was acting as the servant of the truckman, and consequently that no action could be sustained against the fish-dealers.^^ It is quite plain from this and other au- thorities that a servant may be at the same time the servant of two masters ; and he may be in the general employment of one, and in the special employment of another.^* In such cases, if the servant is "Hofer V. Hodge, 52 Mich. 372; Walker, 72 Md. 454; s. c. 20 All. s. c. 50 Am. Rep. 256. Rep. 1. '' Huff V. Ford, 126 Mass. 24. "Wood v. Cobb, 13 Allen (Mass.) "Ames V. Jordan, 71 Me. 540; s. c. 58. 36 Am. St. Rep. 352. "*Vary v. Railway Co., 42 Iowa "Brown v. Smith, 86 Ga. 274; s. c. 246; Kimball v. Cushman, 103 Mass. 12 S. E. Rep. 411. 194; Southern Express Co. v. Brown, " American Dist. Teleg. Co. v, 67 Miss. 260 ; s. c. 7 South. Rep. 318. 537 1 Thomp. Neg.J doctrine op eespondeat superior. in the joint service of two masters, the person injured by the negli- gence of the servant has his option to sue either or both of the mas- ters.^" In such a case the master, in whose employment the servant is specially and temporarily, will be none the less liable because he is the general servant of another. "It is enough that, at the time of the accident, he was in charge of the defendant's property by his assent and authority, engaged in his business, and, in respect to that prop- erty and business, under his control. The fact that there is an inter- mediate party, in whose general employment the person whose acts are in question, is engaged, does not prevent the principal from being held liable for the negligent conduct of the subagent or under-servant, unless the relation of such intermediate party to the subject-matter of a business in which the under-servant is engaged, be such as to give him the exclusive control of the means and manner of its accomplish- ment, and the exclusive direction of the persons employed therefor."^" When, therefore, there was an agreement between an express company and its local agent by which the company was to furnish an express wagon to be used in its business, and the agent was to employ the driver, and furnish and find the horse, the company allowing him extra compensation therefor, and the servant so employed was subject to be discharged by the company, — it was held that he was the servant of the company and that it was responsible for his negligence.^ ^ The relation of master and servant does not exist between a passenger and the driver of a carriage of a transportation company, when the former does not assume to control the conduct of the latter, but leaves him to perform the duties according to his own judgment and discretion. ^^ § 582. Livery-Stable Keeper and Coachman.^^ — If A., a livery- stable keeper or job-master, furnishes a horse and driver to B., a cus- tomer, to be used in driving B. about in his own carriage, the driver, while so employed, will be deemed the servant of A., ajid not of B. f^ and it makes no difference that the arrangement is a continuing one; that the same driver is always sent; that he wears a livery furnished by B., designed to make the public think he is B.'s coachman, and that he receives gratuities from B.^* A livery-stable keeper is, accord- "Vary v. Railway Co., 42 Iowa aTMs section is cited in §§ 599, 246. Compare, ante, § 597. 604. ^"Kimball v. Cushman, 103 Mass. ^ Sammel v. Wright, 5 Bsp. 263. 194, 198, opinion by Wells, J.; South- Compare Dean v. Branthwaite, 5 ern Exp. Co. v. Brown, 67 Miss. 260; Bsp. 35. s. c. 7 South. Rep. 318. ^ Quarman v. Burnett, 6 Mee. & ^ Southern Express Co. v. Brown, W. 499, resolving the question left supra. open in Laugher v. Pointer, 5 Barn. '^ Richardson v. Van Ness, 53 Hun & Cress. 547, when the King's Bench (N. Y.) 267; s. c. 25 N. Y. St. Rep. were equally divided, and adopting 60; 6 N. Y. Supp. 618. the judgment of Littledale, J., in that case. 538 WHO AEE AGENTS OR SERVANTS. [2d Ed. ingly, liable for the negligence of his driver while temporarily en- gaged in the service of an undertaker.^'* If A. and B. exchange labor with their teams, and A.'s teamster, while hauling materials for B., injures a third person, B. will not be liable for the reason that the teamster continues to be the servant of A., and does not become the servant of B.^* § 583. Ship-owner or Master and Charterer. — Whether the master of a ship or the owner of it is the master of the crew, in the sense that he must answer for their negligence, seems to depend upon the nature of the contract between the master and the owner, as explained by surrounding circumstances.^' If the charter-party is such that the owner is to provide everything, and have a crew of his own choosing, or retains power to dismiss the ofEcers and crew, or in fact hires, pays, and controls them, then the owner, and not the charterer, is to be deemed the master of the crew.^^ On the other hand, if it amounts to a demise of the vessel for a definite term, then the charterer becomes the owner pro hac vice, and the crew are his servants.^ ^ An examina- '" Hershberger v. Lynch (Pa.), 11 Atl. Rep. 642 (no off. rep.). •» Michael v. Stanton, 3 Hun (N. Y.) 462; s. c. 5 N. Y. S. C. (T. & C.) 634. " Abb. on Ship., t57. This will ap- pear from many cases. Trinity House V. Clark, 4 Mau. & Sel. 288; Parish v. Crawford, Stra. 1251; James v. Jones, Abb. on Ship. t44; Vallejo V. Wheeler, Cowp. 143; Scares v. Thornton, 7 Taun. 627; Frazer v. Marsh, 2 Cowp. 517; s. c. 13 East 238; Newberry v. Colvin, 7 Bing. 190 (affirmed in House of Lords, 1 CI. & Fin. 283); Dean v. Hogg, 10 Bing. 345; Laugher v. Pointer, 5 Barn. & Cress. 578; Fletcher v. Braddick, 2 New Rep. 182; Fenton v. Dublin Steam Packet Co., 1 Per. & Dav. 103; s. c. 8 Ad. & E. 835; Annett v. Foster, 1 Daly (N. y.) 502. ''Fenton v. Dublin Steam Packet Co., 1 Per. & Dav. 103; s. c. 8 Ad. & E. 835 ; Dalyell v. Tyrer, El. Bl. & El. 906. Where a ship was chartered to the commissioners of the royal navy as an armed vessel, and navigated by a master and sailors provided by the owner, he was liable for damage done to another vessel by the mis- conduct of such crew, although a commander of the royal navy and a king's pilot were on board. Fletcher V. Braddick, 2 Bos. & Pul. (N. R.) 182. ^ "As, in the construction of the great majority of charter-parties, the master and crew will be consid- ered to be the ser^iants of the owner, he will, in most cases, be held re- sponsible for negligence or unskill- fulness." Abb. on Ship., t55. "A charter-party," says the same emi- nent writer and judge, "may be, and most commonly is, a mere contract to carry goods; it may be a contract for the use of a ship manned and equipped for mercantile adventure; or it may be, what it very rarely is, a lease of the hull of a ship, to be navigated by a master and mariner hired and paid by the charterer. In the first case no doubt can exist that the crew remain the servants of the owner. In the second, a pos- session subservient to the employ- ment of the vessel by the charterer, and a control over the mode of her navigation, may still be retained by the owner through his servants, the master and mariners, whose services he has let with the ship, and for whose negligence or unskillfulness he is responsible. But if the case should occur of any injury done by the negligent and unskillful man- agement of a ship, the possession and control of which had so com- pletely passed to the charterer that he appointed the master and crew, and directed, not only her destina- tion and employment, but the mode 539 1 Thomp. Neg.j doctrine op respondeat superior, tion of the cases will disclose a decided tendency on the part of the courts to hold the crew the servants of the owner, and not of the char- terer. The master was accordingly charged with liability for the negligence of the crew, where the owner and master worked the vessel on shares.^" The commander of a canal-boat has been held liable for the negligence of his crew, where he was present on the tow-path giv- ing orders. ^^ § 584. Ship-Owner or Master and Pilot where the Pilotage is Com- pulsory. — A licensed pilot voluntarily employed by the owner of a vessel does not occupy, in law, the status of an independent contractor, but is his servant ; and if he so navigates the ship as to do damage to the vessel or other property of another, the owner of the vessel which he is thus navigating must answer for it.'^ But where the law obliges the master of a vessel, in entering or departing from a particular port, or in performing a particular navigation, to take on board the first licensed pilot who tenders his services, and to put him in control of the navigating of the ship, such pilot is not deemed the servant either of the master or owner of the vessel, in such a sense as to make either responsible for the consequences of his negligence.'^ If the taking of the iirst pilot that offers his services is not compulsory, — if the master is at liberty to pilot his own ship,''* even upon compulsion of paying of her navigation, then probably he, and not the absolute owner, would be held responsible for the misfor- tune." Abb. on Ship., t57. ™Ennett v. Foster, 1 Daly (N. Y.) 502. Compare Webb v. Pierce, 1 Curt. (U. S.) 104; Thompson v. Snow, 4 Me. 264; Lyman v. Redman, 23 Me. 289; Jones v. Blum, 2 Rich. L. (S. C.) 475; Jones v. Sims, 6 Port. (Ala.) 138; Arthur v. The Cas- sius, 2 Story (U. S.) 81. "'Korah v. Ottawa, 32 111. 121. ^^ Yates V. Brown, 8 Pick. (Mass.) 23; Bussyv. Donaldson, 4 Dall. (Pa.) 206; Shaw v. Reed, 9 Watts & S. (Pa.) 72. s' The Annapolis, 1 Lush. 295 ; The Maria, 1 W. Rob. 106; General Steam Nav. Co. v. British & Colonial Steam Nav. Co., L. R. 3 Exch. 330. This rule is embodied in the "Eng- lish Merchants' Shipping Act" of 1854, § 388, and in several earlier British statutes. These statutes have received construction in the following cases: General Steam Nav. Co. v. British and Colonial Steam Nav. Co., L. R. 4 Exch. 238; The Temora, 1 Lush. 17; The Earl of Auckland, 1 Lush. 164; s. c. 30 540 L. J. (P. M. & A.) 41; The Pro- tector, 1 W. Rob. 45; The Diana, 1 W. Rob. 131; Smith v. Condry, 1 How. (U. S.) 28; Mcintosh v. Slade, 6 Barn. & Cress. 657. It has been held that British statutes making pilotage compulsory apply to for- eign vessels entering a British port. The Annapolis, 1 Lush. 295. The Supreme Court of the United States, in a case where one American ves- sel injured another in leaving a British port, under control of a British pilot, whom the master of the American vessel had been obliged to employ, in conformity with British statutes regulating pilotage in British ports, held that the question of liability was gov- erned by the construction which the English Court of Admiralty had put upon the statutes in question, the decisions of the English courts of law presenting a conflict. Smith v. Condry, 1 How. 28. The English Court of Admiralty will not, how- ever, enforce a foreign statute in regard to compulsory pilotage. The Halley, L. R. 2 P. C. 193. ^The Killarney, 1 Lush. 427; s. c. WHO ARE AGENTS OR SERVANTS. [2d Ed. pilotage to a licensed pilot who tenders his services but is not ac- cepted/^ or if he is entitled to select a pilot from a limited number or class of pilots,^' — then the person in charge of the helm, although a licensed pilot, is deemed his servant, and he must answer for his negligence. ^^ But if the ship is in charge of a licensed pilot, the master of the ship will not be liable for the consequences of a collision not traceable to his own personal negligence, although the employment of the pilot may not have been compulsory; for the pilot is, in such cases,' deemed the master of the vessel pro hac vice.^^ § 585. Lessor and Lessee. — A lessee is not, within the meaning of this rule, a servant of his lessor.^"' It is so held in the case of the lessee of a licensed ferry, although the license is in some sense a per- sonal trust.*" The question which generally arises under this head is, whether the particular contract is one of service or a demise of a term in real property. In determining this question, the rule laid down in Bacon's Abridgment*''^ has been appealed to: "Whatever words are sufficient to explain the intent of the parties that one shall divest him- self of the possession, and the other come into it, for such a deter- minate time, such words, whether they were in the form of a license, covenant, or agreement, are of themselves sufficient, and will, in con- struction of law, amount to a lease for years."* ^ But this principle has no application to the case of leases made by railway companies and other corporations having public duties to perform, without the consent of the legislature. In such cases the law does not allow a cor- poration to cast off its public duties without the consent of the state and devolve them upon another;*^ and if it attempts to do so the law 30 L. J. (P. M. & A.) 41; The Stet- ^' Snell v. Rich, 1 Johns. (N. Y.) tin, 1 Bro. & Lush. 199; Tyne Im- 305; Bowcher v. Noidstrom, 1 Taun. provement Commissioiiers v. Gen- 567; Bennet v. Moita, 7 Taun. 258. eral Steam Nav. Co., L. R. 2 Q. B. See The Ticonderoga, Swab. 215. 63; The Lion, L. R. 2 P. C. 525. ™ Fiske v. Framingham Man. Co., '"Attorney-General v. Case, 3 14 Pick. (Mass.) 491; State v. Coe, Price 302. 72 Me. 456; State v. Howard, 72 Me. "^ Martin v. Temperley, 4 Q. B. 459. 298. "Blackwell v. Wiswall, 24 Barb. "Neptune the Second, 1 Dod. 467. (N. Y.) 355; s. c. 14 How. Pr. (N. It has been ruled, however, under Y.) 257; Norton v. Wiswall, 26 the seventy-second section of the Barb. (N. Y.) 618; s. c. 14 How. Pr. statute 6 Geo. IV., c. 125, that if the (N. Y.) 42; Felton v. Deall, 22 Vt. master of a vessel takes on board 170; Ladd v. Chotard, Minor (Ala.) a licensed pilot, although not bound 366. Compare Heimstreet v. How- to do so, he will be exempted from land, 5 Denio (N. Y.) 68; Bowyer v. the consequences of his negligence. Anderson, 2 Leigh (Va.) 550. Lucey v. Ingram, 6 Mee. & W. 302 " Tit. "Leases," &c., K. (followed in General Steam Nav. *= Fiske v. Framingham Man. Co., Co. v. British & Colonial Nav. Co., 14 Pick. (Mass.) 493. L. R. 3 Exch. 330). See also Car- "1 Thomp.Corp.,§§ 386,387; 4 Id., ruthers v. Sydebotham, 4 Mau. & §§ 5352-5360, 5367; 5 Id., §§ 5998, Sel. 77; Smith v. Condry, 1 How. 6137; 6 Id., §§ 7406, 8046; 7 Id^ (U. S.) 28. § 8392. 541 1 Thomp. Neg.] doctrine of kespondeat superiok. treats such attempt as a mere nullity and holds it liable for the torts of its lessee in operating its road, exactly as though the lease had not been made, or as though the relation of principal and agent existed between it and its lessee.** The rule is the same where, as in some cases, the statute conferring the power to lease especially provides that the lease shall not release or exempt the lessor corporation from any duty or liability to which it would be subject. In such cases an action is maintainable against the lessor corporation for an injury re- sulting from the negligence of the lessee in the management of the leased property.*" But this principle has been held to have no appli- cation to the case where an injury has happened to a servant of the lessee of a railroad, so as to give him a right of action against the lessor.** The decision proceeds upon the ground that the contract of the servant is not with the lessor, but with the lessee, and that he is concluded by his own contract from having a right of action against the lessor. But it can not escape attention that the same reasoning would exclude the right of action in a shipper of goods or any other person making a contract with the lessee; which is contrary to the general doctrine of the courts, though not to that of all of them.*^ § 586. Vendor and Vendee. — If the vendor of land retains the legal title in his own name as security for the purchase-money, but lets the vendee into possession, the vendor will not be liable for any torts com- mitted by the vendee in using the land. Thus, where A. agreed to convey land to B., and B. agreed to build a house thereon, and pay for the land, and B., in preparing to build, undermined the house of C, A. was not answerable for the damages.*^ § 587. Eeceivers of Railways. — The general view is that a receiver of a railway company, appointed by a court pending a litigation, is an officer of the court which appoints him, and is in no sense an agent or servant of the company. The company can not therefore be held re- sponsible for the negligent acts of his servants in operating the road.*" « 5 Thomp. Corp., §§ 6341, 6293, way company is not in general liable 6349. for the torts of the receiver, — see 5 *' Quested v. Newburyport Horse Thomp. Corp., § 7148 et seq.; Bell v. R. Co., 127 Mass. 204. Indianapolis &c. R. Co., 53 Ind. 57; "East Line &c. R. Co. v. Culber- Texas &c. R. Co. v. Bledsoe (Tex! son, 72 Tex. 375; s. c. 3 L. R. A. 567; Civ. App.), 20 S. W. Rep. 1153; 10 S. W. Rep. 706. White v. Keokuk &c. R. Co., 52 Iowa "See 5 Thomp. Corp., §§ 5884, 97, 102; Davis v. Duncan, 19 Fed. 5885, 5886; 6 Id., § 8046. Rep. 477; Heath v. Missouri &c. R. "Earle v. Hall, 2 Mete. (Mass.) Co., 83 Mo. 617; Texas &c. R. Co. 353. V. Collins, 84 Tex. 121; s. c. 19 S. W. " Ohio &c. R. Co. V. Davis, 23 Ind. Rep. 365 ; Metz v. BufCalo &c. R. Co., 553; s. c. 85 Am. Dec. 477. See, 58 N. Y. 61; s. c. 17 Am. Rep. 201 generally, on this subject, 5 Thomp. (assignee in bankruptcy). Corp., § 6939 et seq.; that the rail- 642 WHO AKE AGENTS OR SERVANTS. [2d Ed, § 588. Assistants, Deputies and Agents of Public Officers. — In a future volume, discussing the liability of public officers, I shall advert to the distinction between those officers who act directly for the public and mediately for individuals, and those who act distributively for individuals and indirectly for the public. The former, it was seen, are in general only responsible to the public in a criminal prosecution, whilst the latter are responsible to the individuals for whom they un- dertake to act, in a private action. This distinction is important when considering the liability of public officers for the acts of their servants or deputies. Those officers whose duties are of a public or governmental nature are not, in general, liable for the wrongs of those through whose agency they are obliged to act.^" Such agents are deemed agents of the public, or of the government, and not agents of the superior officer whose orders they receive and obey. This is obvi- ously the rule with regard to military officers, and probably the books disclose no instance of an attempt to make a military commander re- sponsible for a wrong of his subordinate, unless such wrong was di- rectly traceable to some wrong of his own. Neither is the captain of a war-vessel answerable for the damage done by her running down another vessel, if the mischief happened during the watch of his lieu- tenant, who was on deck and had actual charge of the navigating of the vessel at the time, the captain not being on deck, and it not being his duty to be there. °^ So, the postmasters-general of England were early held exempt from liability for the defaults of the subordinate officers appointed by them.^^ The same immunity extends to post- masters in this country. These officers, though answerable for a want of attention to the official conduct of their subordinates, are not re- sponsible for their secret delinquencies. An action does not, there- fore, lie against such an officer for the purloining of a letter by a sworn assistant appointed and retained by him in good faith.°^ The assistant or deputy is liable for his own misfeasances.^* But if the °° Where the duties delegated to tinction between the relation of a officers elected by public corpora- postmaster-general and his sworn tions are political or governmental, assistants acting under him, and the maxim of respondeat superior between master and servant gener- does not obtain: Summers v. Board ally, has long been settled." It fol- &c., 103 Ind. 262; s. c. 52 Am. Rep. lowed that, in an action to charge 512. a postmaster for negligence in not "' Nicholson v. Mounsey, 15 East forwarding a letter, the issue being 384. Compare Snell v. Rich, 1 the neglect of the postmaster him- Johns. 305. self, it was incompetent to give in " Lane v. Cotton, 1 Ld. Raym. evidence the neglect of an assistant 646 (Lord Holt dissenting) ; Whit- acting under him. IMd. field V. Le Despencer, Cowp. 754. " Maxwell v. Mcllvoy, 2 Bibb '^Schroyer v. Lynch, 8 Watts (Ky.) 211; Rowning v. Goodchild, (Pa.) 453; Wiggins v. Hathaway, 3 Wils. 443. See Dox v. Postmaster- 6 Barb. (N. Y.) 632; Dunlop v. Mun- General, 1 Pet. (U. S.) 318; Ford roe, 7 Cranch (U. S.) 242, 269, v. Parker, 4 Ohio St. 576. ■where Johnson, J., said: "The dis- 543 1 Thomp. Neg.J doctrine op respondeat superior. postmaster employs a private person, not duly appointed and sworn as a deputy or assistant postmaster, such private person is to be deemed his servant, and he must answer for his negligence; because the em- ploying of such a person, without requiring him to qualify under the law, is official misconduct on the part of the postmaster.^ ^ In like manner, a mail-carrier who has not been sworn in conformity with law has been held to be, not an officer of the government, but a servant of the contractor appointing him, so that the latter is responsible for his defaults.^® In 1803, this question was before the Constitutional Court of South Carolina. The action was for the loss of bank-bills which had been sealed up in a letter and deposited in the hands of an unofficial assistant to the postmaster, the postmaster himself being absent. The court ruled that a postmaster is liable for a loss occa- sioned by negligence in his office; and that his deputy or assistant is not responsible to the party injured, although the loss is occasioned solely by his default, unless he is an officer of the department, recog- nized by law ; and if he is such an officer, he alone is responsible, and not the postmaster.^' The position of the court that the assistant was not liable because he had assumed to discharge the functions of an office without being lawfully appointed and qualified, is destitute of support in legal analogy. Such a person ought not to be allowed to claim an advantage from the fact that he was usurping an office to which he had not been regularly appointed. ^^ Not being an inde- pendent officer of the law, he was obviously, so far as he had authority to act at all, a mere servant of the postmaster.^' This being his status, both he and the postmaster were jointly and severally liable for his defaults.*" It was ruled in New York, in 1806, that the executors of a deceased postmaster were not liable for the embezzlement of moneys by a clerk of the postmaster, not duly appointed and qualified, on the ground that the action was one which died with the postmaster. The court expressed no opinion as to whether the postmaster himself, if liv- ing, would be liable."^ Statutes now probably exist in all the States of the Union concerning the survivorship of actions, which render this decision obsolete. In like manner, it has been ruled in England that public officers, acting gratuitously, are not responsible civiliter for the negligence of the agents whom they are obliged to employ. °^ "'^ Bishop V. Williamson, 11 Me. ""Bishop v. "Williamson, 11 Me. 495, 506. 495. "Sawyer v. Corse, 17 Gratt. (Va.) "Tost, § 611. 230. "Franklin v. Low, 1 Johns. (N. =' Bolan V. Williamson, 1 Brev. 181. Y.) 396. =»Dean v. Gridley, 10 Wend. (N. ""Hall v. Smith, 2 Bing. 156; s. c. Y.) 254; Green v. Burke, 23 Wend. 9 J. B. Moo. 228; Holliday v. St. (N. Y.) 490; Plymouth v. Painter, 17 Leonard, Shoreditch, 11 C. B. (N. Conn. 585; Farmers- &c. Bank v. S.) 192. See Humphreys v. Mears, Chester, 6 Humph. (Tenn.) 458. 1 Man. & R. 187; Harris v, Baker, 544 WHO ARE AGENTS OR SERVANTS. [2d Ed. This doctrine does not apply to corporations discharging public duties, and having a fund out of which damages may be paid."' On the other hand, those officers who act distributively for the public, in considera- tion of the fees paid them by the particular individuals for whom they act, of which the most conspicuous example is that of sheriffs, are generally held liable for the negligences and other wrongs of their deputies.'* The doctrine is equally applicable to clerks and recording officers.^ ^ § 589. Master not Liable for Negligence of Third Persons Called in by His Servants to Assist Them. — Judicial authority greatly prepon- derates in favor of the proposition that if a master commits the per- formance of a certain duty to his servant, and his servant, without the knowledge or consent of the master, devolves the performance of the duty upon some one else, whether upon a person employed by him or upon a volunteer, in whole or in part, and in the performance of it a negligent injury is done by such other person, the master will be liable, irrespective of the consideration whether such other person is, under the circumstances, to be deemed his servant or not.*' The principle rests upon one of the most extensive duties which men, in a state of civil society, owe to each other, — the duty of each man so to use his own property as not to injure another; and, on principle, it can make no difference in respect of this duty, whether the property be fixed property or movable property. Whenever a master sends his servant out beyond his own eye and immediate control, in the custody of any species of property of the master which, unless properly cared for, guarded and used, is liable to work injury to third persons, it is necessarily a part of the duty which the master commits to the serv- ant, so to care for, guard and use such property that it shall not work such injury. The duty is violated whenever the servant abandons 4 Man. & Sel. 27. The law of Scot- 4 Mass. 60; Bond v. Ward, 7 Mass. land was declared to be the same: 123; Waterhouse v. Waite, 11 Mass. Duncan v. Findlater, 6 CI. & Fin. 207; Smith v. Joiner, 1 D. Chip. 894. (Vt.) 62. " Mersey Docks Trustees v. Gibbs, °^ Welddes v. Edsell, 2 McLean L. R. 1 H. L. 93; s. c. 1 Thomp. Neg., (U. S.) 366. 1st ed. 581. "" Tennessee Coal &c. Co. v. Hayes "Watson V. Todd, 5 Mass. 271; 97 Ala. 201; s. c. 12 South. Rep. 98 Perley v. Foster, 9 Mass. 112; Vin- Carson v. Leathers, 57 Miss. 650 ton V. Bradford, 13 Mass. 114; Cong- Andrews v. Boedecker, 126 111. 605 don v. Cooper, 15 Mass. 10; Camp- s. c. 18 N. E. Rep. 651; affirming bell V. Phelps, 17 Mass. 244; Jentry s. c. 27 111. App. 30; Hill v. Sheehan, V. Hunt, 2 McCord 410; Hazard v. 48 N. Y. St. Rep. 410; 20 N. Y. Supp. Israel, 1 Binn. (Pa.) 240; Moore v. 529; Marks v. Rochester &c. R. Co., Dawney, 3 Hen. & M. 127; Bstes v. 77 Hun (N. Y.) 77; s. c. 59 N. Y. Williams, Cooke (Tenn.) 413; St. Rep. 848; 28 N. Y. Supp. 314; Prewitt V. Neal, Minor (Ala.) 386; Lakin v. Oregon &c. R. Co., 15 Ore. Knowlton v. Bartlett, 1 Pick. 220; s. c. 15 Pac. Rep. 641; Wich- (Mass.) 271; Marshall v. Hosmer, trecht v. Fasnacht, 17 La. An. 166. VOL. 1 THOJIP. NEG. — 35 545 1 Thomp. Neg.] doctrine of respondeat superior. the care, custody and use of the property to another who so uses it as to work injury."' The negligence in such cases is deemed the negli- gence of the immediate servant. It consists primarily of his abnega- tion of a duty which the master has committed to him, — a duty which the law imposes on the master for the protection and safety of other persons. Some of the courts regard the case as merely a case in which the servant, in discharging a duty committed to him by his master, violates his master's orders in respect of the manner of dis- charging them, in which case, as already seen,°^ the master remains liable. *' In other words, the master directs a servant to do a certain thing by himself, and the servant commits it to another, in conse- quence of which an injury happens, and the liability of the master follows in consequence of the deviation of the servant from his orders in the manner of executing his duty. If the master knows that the servant is in the habit of employing other persons to assist him in the performance of his duty, and does not object to it or prohibit it,'" and especially if the master afterwards pays the persons so employed for their services, he is deemed to ratify the act of his servant in employ- ing them and they become his servants and the question is lifted out of all doubt." § 590. Cases Qualifying this Doctrine. — Cases are to be found which qualify the doctrine of this section. The Supreme Court of Minnesota, in an opinion written by Mr. Justice Mitchell, with his usual clearness, say that the statements to be found in some of the text-books to the effect that where a servant is employed to do a par- ticular piece of work, and he employs another person to assist him, the master will become liable for the acts of the persons so employed, as much as for the acts of the servant himself, is misleading and in- accurate when stated without qualification.'^ But the proposition stated in the syllabus of this case, which seems fairly to represent the opinion, that "if a servant who is employed to perform certain work for his master, procures another person to assist him, the master is liable for the negligence of the latter, only when the servant had authority to employ such assistant," is not, as we have seen, the gen- erally accepted law. At the same time, the court concede that this authority need not be an express authority, but that it may be proved by circumstances, just as any other agency may be proved: as where, for a considerable time before, the servant has been employing the '"Ante, § 523. "Tennessee &c. R. Co. v. Hayes, "Ante, § 530. 97 Ala. 201; s. c. 12 So. Rep. 98. «= Hill V. Sheehan, 48 N. Y. St. Rep. " Haluptzok v. Great Northern R. 410; s. c. 20 N. Y. Supp. 529. Co., 55 Minn. 446, 449; s. c. 57 N. " Haluptzok V. Great Northern R. W. Rep. 144. Co., 55 Minn. 446; 57 N. W. Rep. 144. 546 WHO ARE AGENTS OR SERVANTS. [2d Ed. third person, under a similar arrangement, under circumstances from which the knowledge of the master of the fact may be fairly in- ferred." The Kansas City Court of Appeals have likewise denied the general doctrine of the case above cited in an opinion by Judge Elli- son, which, though clearly written and well reasoned, leads to a con- clusion quite at variance with the weight of authority and with what we conceive to be sound principle. Briefly stated, the case was that the driver of the defendant's beer wagon took an acquaintance to ride with him. The wagon was loaded with empty barrels, some of which began to fall off. While the driver and his friend were readjusting the load, one of the barrels was thrown off by the negligent act of the friend, injuring the plaintiff. It was held that the owner of the wagon was not liable, because the relation of master and servant did not exist between him and the person thus invited to ride with and assist his driver.'* Similarly, it was held in the Saint Louis Court of Ap- peals in an action for damages for the killing of plaintiff's child, where it appeared that the defendant's teamster engaged a stranger, without the knowledge, authority, or consent of the defendant, to drive the defendant's team temporarily, and that the injury occurred while the stranger was so employed, — that there was no cause of action against the defendant.'® § 591. When Servants Justified in Calling in the Aid of Third Per- sons so as to Make the Master Liable for their Acts.* — Again, the law recognizes a relation which has sometimes been called "agency by necessity." That is to say, it recognizes the right and duty of an agent or servant, under cases of extreme urgency or necessity, as in the ease of a shipwreck or railway accident, to call in the assistance of third persons, — in which ease the master will be bound by the act of his servant, and will be liable on the one hand to make compensation to the persons thus called in, and will be answerable for their negli- gence on the other ; and will, moreover, be answerable to them in case they are injured through the negligence of the servant thus calling them in.'^ Accordingly, it has been held that the conductor of a railway freight or passenger train has the implied authority to employ a brakeman to take the place of a regular brakeman who is absent through sickness or othervnse, when the proper and safe manage- " Haluptzok v. Great Northern R. " Mangan v. Foley, 33 Mo. App. Co., 55 Minn. 446; s. c. 57 N. W. Rep. 250. 144. To the same doctrine, see a This section is cited in § 593. Gleason v. Amsdell, 9 Daly (N. Y.) ^^ Ante, § 544, et seq.; Marks v. 393. Rochester &c. R. Co., 77 Hun (N. Y.) "James v. Muehlebach, 34 Mo. 77; s. c. 28 N. Y. Supp. 314; 59 N. Y. App. 512. St. Rep. 848. 547 1 Thomp. Neg.] doctrine of kespondeat superior. ment of the train requires it.''^ A person receiving personal injuries while so temporarily employed will be treated as an employ^ of the company, in an action for damages for such injuries; but not if plaintiff was merely a bystander, and ordered by the conductor to connect the coupling, but was under no obligation or agreement to obey the order.'* It is also held that a mere order or request by a conductor, to a night watchman about a station who was riding on a freight train to a distant station for his meals, to make a coupling for him, does not constitute an employment within the scope of the im- plied authority of the conductor. ''^ § 592. Where the Servant has Authority to Employ Another Servant.^ — If a servant in charge of the business of his master has authority from his master to engage assistance therein and, in pursu- ance of this authority, he does engage assistance, this establishes the relation of master and servant between the principal master and the assistant so employed, with all the consequences attendant upon that relation; and the manner in which the servant so employed receives compensation, whether measured by the piece, the job, ox by the time of service, is immaterial.*" If, therefore, the yardmaster of a railroad company has authority to employ necessary assistants in his depart- ment, a person working therein as a brakeman, with his permission or by his direction, is a servant of the company, the same as the paid employes, and not a trespasser.*^ § 593. Whether Master Liable to Persons Temporarily Called In to Assist his Servants. — As already seen, in the opinion of several courts,*^ the relation of master and servant arises whenever a servant calls in a third persop. to assist him temporarily; and this is clear where this is done out of necessity in an emergency,*^ and especially where a servant calling in such assistance had authority so to act in the premises. It has been held, without special reference to the ex- istence of such authority, that the fact that a man is engaged for a mere temporary purpose, and without expecting any pay for the work done, makes him a servant entitled to protection the same as other servants, when he is working at the request of a foreman in charge of " Georgia &c. R. Co. v. Propst, 83 " Georgia &c. R. Co. v. Propst, 85 Ala. 518; s. c. 3 South. Rep. 764; Ala. 203; s. c. 4 South. Rep. 711. s. c, on a subsequent appeal, 85 Ala. a This section is cited in § 593. 203; 4 South. Rep. 711; Sloan v. Cen- *" Rummell v. Dilworth, 111 Pa. St. tral &c. R. Co., 62 Iowa 728; Fox 343. V Chicago &c. R. Co., 86 Iowa 368; ^^ Central Trust Co. v. Texas &c. s. c. 53 N. W. Rep. 259; 17 L. R. A. R. Co., 32 Fed. Rep. 448. 280; 53 Am. & Eng. Rail. Cas. 430. '= Ante, §§ 591, 592. " Georgia &c. R. Co. v. Propst, 83 ''Ante, §§ 544, et seq., 591. Ala. 518; s. c. 3 South. Rep. 764. 648 WHO ARE AGENTS OK SERVANTS. [2d Ed. the work.^* Eef erring to a doctrine which will be considered in a subsequent volume, it may be stated here that the courts have had a good deal of difficulty with the question whether a person called in temporarily by a servant to assist him thereby becomes, pro hac vice, a fellow-servant of the servant calling him in, so that if, while en- gaged in the temporary employment, he is injured through the negli- gence of the servant calling him in, he is precluded from recovering damages from the master of such servant on the ground of having become his fellow-servant. Several courts have answered this ques- tion in the negative.*" Whether the master of the servant calling in such temporary assistance is liable for the negligence of the person so called in, will, it is supposed, depend upon the question whether the servant had authority so to call him in, or whether he had been in the habit of doing it with the knowledge and implied approval of the master, or whether there was an overruling necessity for so doing, such as would create an implication of authority.*® § 594. Illustrations of this Doctrine. — Thus, in one of the early cases dealing with this subject, the plaintiff entrusted his cabriolet to his driver, and the driver, while driving the cart, committed the reins to another person, and in consequence of the negligent driving of such other person an injury happened to the plaintiff. It was held that the plaintiff could recover damages from the master, because, in the lan- guage of Lord Abinger, C. B., "the reins being held by the other man makes no difference. It was the same as if the servant held them himself."*^ In another case, decided shortly after, a warehouseman " Johnson v. Ashland Water Co., 832. Where a railway station was 71 Wis. 553 ; s. c. 5 Am. St. Rep. used by two railways, the G. W. Co. 243; 37 N. W. Rep. 823. and the N. W. Co., but was in the *= Railroad Co. v. Ward, 98 Tenn. exclusive charge of the N. W. Co., 123; s. c. 38 S. W. Rep. 727. Under a servant of the N. W. Co., who was the so-called "fellow-servant rule," injured through the negligence of a master is not liable for injuries of a servant of the G. W. Co., caused by the negligence of a serv- while working in and about ant, to one who is voluntarily assist- the station, was not in a com- ing a servant at the latter's request : mon employment with such negli- Degg V. Midland R. Co., 1 Hurl. & gent servant, and might recover N. 773; Potter v. Falkner, 31 L. J. damages from the G. W. Co. for his (Q. B.) 30; Abraham v. Reynolds Injuries: Warburton v. Great West- Jur. (N. S.) 53; Flower v. Pennsyl- ern R. Co., L. R. 2 (Exch.) 30; s. c. vania R. Co., 69 Pa. St. 210; New 36 L. J. (Exch.) 9. Orleans &c. R. Co. v. Harrison, 48 ^ It has been held that the pro- Miss. 112; s. c. 12 Am. Rep. 335; prietor of a theater is liable for the Street R. Co. v. Bolton, 43 Ohio St. negligence of one who, for three or 224. The same rule was applied in four weeks, has been assisting his a case where the plaintiff, who was employer in opening carriage doors hired by a subcontractor under de- at the theater: Wellman v. Miner, fendant, was injured through the 19 Misc. (N. Y.) 644; s. c. 44 N. Y. negligence of servants of the de- Supp. 417. fendant: Wiggett v. Fox, 11 Exch. "Booth v. Mister, 7 Car. & P. 66. 649 1 Thomp. Neg.J doctrine of eespondeat superioh. employed a master-porter to remove a barrel from his warehouse. The master-porter employed his own men and tackle; and through the negligence of the men, the tackle failed, and the barrel fell and in- jured the plaintiff. It was held that the warehouseman was liable for the injury, because it made no difference by whose hands the master-porter effected the work committed to him.^^ On later doc- trine this case might be differently decided on the ground that the master-porter would be an independent contractor.^^ In one of the early American cases dealing with the subject, a servant, employed to work upon a farm by the month, directed his infant son to do an act upon the farm which was within the scope of the servant's employ- ment. The act consisted in setting fire to certain heaps of brush which had been accumulated on the farm for the purpose of being burned. By reason of the negligence of the son in not properly guarding the fire it was communicated to the field of the plaintiff, causing him damage. It was held that the master of the farm hand must answer for the damage."" The propriety of this decision seems clear, and it might well have rested upon the obligation under which the owner of the farm stood to his neighbor so to guard his farm as to prevent the creation of destructive nuisances thereon. § 595. Further Illustrations. — In another case, in the same state, the owner of a house, who directed his servant to remove snow and ice from the roof, was held responsible for an injury thereby occasioned to a passer-by, irrespective of the question whether the injury was the result of the negligence of the servant or of a third person who had volunteered to assist him. The two judges who wrote opinions in this case did not exactly agree as to the grounds on which to rest their de- cision; but it plainly rests on the same ground as that which sup- ports the decision in the previous case : the obligation of the owner of property so to use it as not to injure other persons. Still later, in the same state, where, under a custom in regard to the unloading of vessels by stevedores, the duty of managing and controlling a guy-rope used for that purpose rested upon the captain of the vessel, and he committed it to an inexperienced boy, in consequence of whose in- competency the servant of the stevedore was injured, it was held that the owner of the vessel was liable to such servant."^ In another case, the owner of a quantity of lumber employed teamsters to haul it to an appointed place, where they were directed to unload and pile it up. "Randleson v. Murray, 8 Ad. & "Kilroy v. Delaware &c. Canal El. 109. Co., 121 N. Y. 22; afC'g s. c. 21 Jones '^Post, §§ 635, 637, 638, 639. & S. 138. Compare Murray v. Cur- '» Simons v. Monier, 29 Barb. (N. rie, L. R. 6 C. P. 24, and Tlie Harold, Y.) 419. 21 Fed. Rep. 428. 550 WHO ARE AGENTS OR SERVANTS. [2d Ed. They unloaded and piled up a portion of it without assistance and committed the unloading and piling of the residue to the voluntary and gratuitous assistance of a third person. He piled it so unskill- fully and unsafely that it fell over on another person, causing his death, without any contributory fault on his part. It was held that an action would lie against the owner of the lumber for damages re- sulting from the death of the person killed, — and this irrespective of the question whether the volunteer was to be deemed a servant of the owner or not.°^ In another case, a livery-stable keeper directed his servant to deliver a horse, belonging to his customer, at a certain place. The servant, without the knowledge or consent of the master, entrusted the horse to a third person to be so delivered. While exe- cuting this commission the third person injured the horse through an act of negligence. It was held that the livery-stable keeper was liable to the owner of the horse in damages.'^ In another case it appears that there was a custom, on the part of those in charge of a steamboat, to notify the passengers when their respective landings were reached. The clerk of the boat committed this duty to a third person, and in consequence of his neglect to perform it a passenger was carried on to another landing. It was held that he had an action for damages against the owner of the boat, — the court saying: "the defendant in error [the owner of the boat] is bound, not only by the acts of his clerk, but by the acts of those to whom, in this matter, the clerk had deputed the performance of the duties intrusted to himself. The case stands precisely as if the clerk had, in person, misdirected and led Mrs. Carson off the boat."'* § 596. Where One Kailroad Company Uses the Track, Tacilities, or Servants of Another. — Where one or more railway companies use the facilities of another such company, under an arrangement between them, or where several railway companies unite in an agreement by which they are to have the common use of the same facilities, and a third person is injured by an employe in the service of one or more of such companies, the question of the liability will depend, of course, upon the question whose servant he is at the time of doing the injury. He is primarily the servant of the company which employs him, con- trols him and has the power to discharge him, although he may be at the time acting with reference to the business of the other com- pany. Thus, where three companies had their tracks on the same city street, and by an agreement among themselves, one company paid »= Andrews v. Boedecker, 126 111. »' Hill v. Sheehan, 48 N. Y. St. Rep. 605; s. c. 18 N. E. Rep. 651; aff'g 410; s. c. 20 N. Y. Supp. 529. s. c. 27 111. App. 30. " Carson v. Leathers, 57 Miss. 650, 654. 551 1 Thomp. Neg.] doctrine of respondeat superior. a flagman at one street-crossing, and another at a second, and another (the defendant) at a third, and the plaintiff was injured in conse- quence of the negligence of the flagman at the third crossing, — it was held that the defendant — his immediate employer — must answer for the damages, although at the time he was signaling the approach of a train belonging to one of the companies which did not employ him.'" But where a railroad company knowingly availed itself, for a long series of years, of a flagman employed and paid by another company, it was held to be chargeable with damages for his negligence in failing to flag one of its trains."" On the other hand, where two companies have an arrangement by which they employ one person to act as switchman at a place where the companies use a common track, and both companies contribute to pay the wages of such switchman, al- though he receives them immediately from one company and he is injured while coupling the ears of the other company, he may, under a state of the statute law, which lays out of view the question whether he was injured by the negligence of a fellow-servant, recover damages from such other company ; for, although he may be regarded as in the general service of the company from which he receives pay, yet this does not exclude the conclusion that he may be in the special service of the other.*' § 597. Two Railroad Companies Employing a Common Servant.* — A similar conclusion was reached by another court on closely analo- gous facts. The tracks of several railway companies, closely con- tiguous to each other, crossed the street of a city. One of these com- panies employed and paid a gateman, whose duty it was to raise and lower the gates on either side of the tracks when trains were approach- ing. Through his negligence in raising the gate before the passage of a train of one of the companies other than the company employing him, a person was injured. It was held that she could maintain an action for damages against the company employing him, although some of the other companies contributed to the former company a portion of his wages. The evidence was deemed, by the court, to justify the conclusion that the company employing him undertook the management of the gates for the beneflt of all the other companies."* Where two railway companies use a common track, the proprietary company is not responsible to its own employes for personal injuries which they sustain solely by reason of the negligent use of the track °= Buchannan v. Chicago &c. R. '" Vary v. Railway Co., 42 la. 246. Co., 75 Iowa 393; s. c. 39 N. W. Rep. a This section is cited in § 581. 663. "'Brow v. Boston &c. R. Co., 157 "" Denver &c. R. Co. v. Gustafson, Mass. 399. 21 Colo. 393; s. c. 41 Pac. Rep. 505. 552 WHO ARE AGENTS OR SERVANTS. [2d Ed. by the employes of the other company, but their redress is against the company whose employes are at fault."' If a railroad company rents a switch-track with cars and transportation facilities to a manufac- turing company, and its cars while on such track and in the possession of the manufacturing company are injured by the employes of the latter, the railroad company may recover damages, and the circum- stance that the cars belonged to the railroad company itself, and were at the time upon its own track, will be no defense.^"" § 598. Public Officers Employed by Private Persons. — As already seen,^"^ where a private person or corporation, under an arrangement with the public authorities, employs a police officer or deputy sheriff for the purpose of guarding the property of such private person or corporation, or preventing disorder in the conduct of its business, or where, at the request of such a person or corporation, one of its em- ployes is clothed with special police powers by the public authorities, to accomplish the same purpose, — the private person or corporation will be deemed the principal or master of the person so employed, and will be answerable for his torts committed upon third persons, exactly as though he did not sustain the additional relation of a public officer.^"- So, it has been held that a railroad company can not escape liability for the wrongful act of a night watchman employed to guard its property, on the ground that such watchman is also a deputy ^ Georgia R. &c. Co. v. Friddell, ments of its train while thus on the 79 Ga. 489; s. c. 7 S. E. Rep. 214. track of the U. company. The rule "" Montgomery Gas Light Co. v. of respondeat superior was deemed Montgomery &c. R. Co., 86 Ala. 372. to have been suspended, as between For the same case on a former ap- the R. company and its own serv- peal, under the name of Montgom- ants, while the train was on the ery &c. R. Co. v. Chambers, — see 79 tracks of the U. company: Atwood Ala. 338. Where one railroad com- v. Chicago &c. R. Co., 72 Fed. Rep. pany, which we will call the R. com- 447. The reasoning of the court has pany, uses the tracks of another no sense in it unless the collision railroad company, which we will call was brought about by the negligence the U. company, under a contract of a servant of the U. company, which provides that the U. company whose orders the servants of the R. shall have the exclusive right to company were, under the contract, make rules for the operation of such bound to obey. Otherwise the acci- part of its road as is operated by dent might well be ascribed to the the parties jointly, and that all negligence of the servants of the R. trains shall move in accordance company. The real question was with the orders of the superintend- whether the collision was brought ent of the U. company; and a con- about by the negligence of the serv- ductor of a train of the U. company ants of the R. company, — in other is killed on such part of the road of words, the negligence of which class the U. company, in consequence of of servants was the proximate cause a train of the R. company colliding of the catastrophe? with a train of the U. company, the "' Ante, §§ 567, 568. R. company is not liable to pay dam- "^ Dickson v. Waldron, 135 Ind. ages on account of the killing of the 507; s. c. 24 L. R. A. 483; 34 N. E. conductor; because its own servants Rep. 506, and 35 N. E. Rep. 1. had no power to control the move- 553 1 Thomp. Neg.j doctrine of respondeat superior. sheriff, since a deputy sheriff, as such, can not engage to guard the property of a corporation not in the custody of law.^'"' So, a police officer who, in response to the invitation of the authorized agents or servants of a railway company, assists in ejecting a passenger, be- comes the special agent of the company for that purpose, so that the company will be liable, under a rule elsewhere considered,^"* for any excess of force employed in ejecting him.^"' If, on the other hand, the conduct of the passenger in unlawfully persisting in riding is such as to constitute him a disorderly person, a policeman of a town at which the train stops may, by virtue of his office, arrest him; and if the policeman makes the arrest upon his own motion without direc- tion, express or implied, on the part of the servants or agents of the railroad company, the latter will not be responsible for any excess of force employed by him in making it. Moreover, where a city police officer takes, by force, a person engaged in disorderly conduct on a railway train, stopping at a station in a town, whose officer the police- man is, the act will be presumed to have been done in virtue of his official character and not in virtue of a special agency for the railway company, although he may have been called in by the servants of the company.^"® § 599. Liability of Master Furnishing Servant to a Third Per- son. — We have considered this relation in cases where the owner of a horse and vehicle furnishes to a third person for hire the horse and vehicle and also a' person to drive it, — ^with the general conclusion that the owner is responsible for the negligence of the driver in driv- ing the horse and vehicle. ^"^ This doctrine may, of course, be ex- tended to other situations. Thus, it was held in a learned and in- structive opinion by McAdam, J., that where the owner of a building, at the request of a contractor who was at work thereon, furnished a man to run the elevator of the building for the use of the contractor, the man so furnished continued to be the servant of the owner in such a sense as to render the owner liable for injury caused by him through negligence to the servant of the contractor.^"* But, in every such case, the question whether the lender or the hirer of the servant is to be deemed his master will depend upon the nature of the contract of hiring, and whether, under that contract as made or executed by the parties, the servant remains under the control of his general master or passes under the control of the special master. Undoubtedly, for the "' St. Louis &c. R. Co. V. Hackett, "* Jardine v. Cornell, supra. 58 Ark. 381; s. c. 24 S. W. Rep. 881. "^^ Ante, §§ 581, 582. »" Under the title Carriers of Pas- "' Higgins v. Western U. Tel. Co., sengers, in a future volume. 8 Misc. (N. Y.) 433; s. c. 58 N. Y. "= Jardine v. Cornell, 50 N. J. L. St. Rep. 852; 28 N. Y. Supp. 676. 485; s. c. 14 Atl. Rep. 590. 554 WHO AKE AGENTS OR SERVANTS. [2d Ed. purposes of the rule of respondeat superior, a man may be the general servant of one master and at the same time the special servant of an- other. This is well illustrated by a case where the owners of a crane loaned it to a firm who were engaged in loading a ship and furnished a man in charge of it who was controlled by the borrowers in respect of the manner in which he should operate it, the lenders having no control over him in this regard. It was held that, although he was the general servant of the owners and lenders of the crane, yet, as they had parted with the power of controlling him with regard to the matter on which he was engaged, they were not liable for his negli- gence while so employed.^"® On the other hand, in conformity with some of the holdings which have preceded,^^" cases are not wanting which hold that, where a person hires the personal property of an- other, and that other supplies, although under the contract of hiring, a servant who is charged with the general management and control of the property, such servant remains, for the purposes of the rule of respondeat superior, the servant of his general master, and does not become that of his special master, although the special master ac- quires dominion over him to a limited degree with the right to super- intend and direct his conduct.^^^ § 600. Other Illustrations of the Foregoing Doctrine. — If one rail- way company intrusts the servant of another company with the per- formance of certain duties, and, while so acting, a third person is in- jured, the servant will be deemed the servant of the company for whom he was acting, although in the pay of the other company.^^^ If the servant of A., with A.'s assent, engages for a day to drive a team for B., about B.'s business, he will be deemed, while so acting, the servant of B., and not the servant of A.^^^ If A., a merchant, purchases a box of B., another merchant, and sends his porter after it, and the porter undertakes to lower it from the loft of B.'s store, with B.'s permission, but without the assistance of B. or his servants, and in so doing negligently injures a traveller, A. will be liable, and not B. ; for the mere permission to do an act on one's premises does not make the actor one's servant.^^* If the servant of A. does an act touching the property of B., in consequence of which an injury hap- '" Donovan v. Laing &c. Constr. "°Awie, §§ 581, 582. Syndicate ("1893), 1 Q. B. 629. To "'New Orleans &c. R. Co. v. Nor- the same doctrine, see Ditberner wood, 62 Miss. 565; s. c. 52 Am. Rep. v. Rogers, 66 How. Pr. (N. Y) 35; 191. s. c. 13 Abb. N. Cas. (N. Y.) 436; »>= Taylor v. Western Pacifle R. Powell V. Virginia Constr. Co., 88 Co., 45 Cal. 323, 334. Tenn. 692; s. e. 13 S. W. Rep. 691. '^^Wood v. Cobb, 13 Allen (Mass.) Compare Samuelian v. American 58. Tool &c. Co., 168 Mass. 12; s. c. 46 '"Stevens v. Armstrong, 6 N. Y. N. E. Rep. 98. 435. 555 1 Thomp. Neg.] doctrine of respondeat superior. pens to C, although A.'s servant, when so acting under the direction of B., was also prosecuting the business of his own master, in respect of the particular act, he is to be deemed the servant of B., and not of A.^^° A boy, sent by a manufacturer of fireworks to assist his expert in arranging the set pieces of an exhibition furnished to a com- mittee, is not the servant of such manufacturer, in setting off rockets at a place apart from such set pieces, under the direction of the com- mittee, and without the direction or consent of the expert, so as to render the manufacturer liable for his negligence, since the boy was to be deemed the servant of the committee.^^* § 601. Public Officers Employing Private Agents to Discharge Public Duties. — The doctrine of respondeat superior is said to be founded on the supposed benefit to the master of the act of his servant. It consequently does not apply to the case where a public officer em- ploys agents in the discharge of a public duty so as to make the officer liable for those torts of such agents which he does not directly author- ize or ratify. If, therefore, a school committee, lawfully and within the scope of its powers, orders a tree to be cut down which stands on the school-house lot, it is not liable for an injury caused by the per- sons whom it employed to do it through their negligence in doing it.^*^^ § 602. Liability of Two Municipal Corporations for Negligence of Laborer on an Inter-Urban Bridge. — Such arrangements may exist be- tween two municipal corporations acting on legislative authority in the control, management and operation of a bridge spanning a water- way separating the two cities, that either or both of such cities will be liable to a third person for the damages caused by the negligence of laborers employed in the construction of such bridge.^ ^^ § 603. Superintendent and Inmates of Public Hospital. — The rela- tion of master and servant does not exist between the superintendent of a county hospital and the inmates thereof; and the superintendent is consequently not liable for a trespass committed by an inmate in procuring bark for use at the hospital under, but not in accordance "' Murphy v. Caralli, 3 Hurl. & E. Rep. 789. The court cites Nowell Colt. 461; s. c. 10 Jur. (N. S.) 1207; v. "Wright, 3 Allen (Mass.) 166, and 34 L. J. (Exch.) 14; 13 Week. Rep. Hill v. Boston, 122 Mass. 344. This 165; Clapp v. Kemp, 122 Mass. 481. subject is considered at length in a ""Wyllie v. Palmer, 63 Hun (N. future volume, when dealing with Y.) 8; s. c. 43 N. Y. St. Rep. 92; 17 the title Municipal Corporations. N. Y. Sup. 434; s. c. aff'd, 137 N. Y. '"Walsh v. New York, 107 N. Y. 248. 220; s. c. N. E. Rep. 911; aff'g s. c. "'Authorities cited in McKenna v. 41 Hun (N. Y.) 299. Kimball, 145 Mass. 555; s. c. 14 N. 556 ■VVHO ARE AGENTS OR SERVANTS. [2d Ed. with, his direction, and not resulting from his carelessness in giving the directions.^ ^° § 604. Servants at Public Bath Houses Who Receive Their Com- pensation from the Customers. — Attendants at public bath houses, who are selected by the manager of the establishment, and who enjoy the exclusive privilege of administering baths and taking fees from the bathers therefor, who not only assist the bathers but perform other services in furtherance of the business enterprise, and who are subject to the general control of the manager and to dismissal by him for cause,— are held to be servants of the proprietors of the bathing house, notwithstanding they receive no compensation for their services, ex- cept such as comes to them in fees paid by the bathers, the latter choos- ing their attendants from those selected by the manager and paying the fees directly to them and directing them in the manner of administer- ing the baths. If, therefore, a bather receives an injury through the negligence of such servant so selected and directed by him, he has an action for damages against the proprietor of the establishment. The case is likened somewhat to the cases where a man hires out his horse and coachman to another ;^^" or, to the case where an innkeeper fur- nishes servants to wait upon his guests: — in both of which cases the fact that the servant acts under the direction of the person whom he is detailed to serve, does not make him any the less the servant of his general master.^ ^^ § 605. Penitentiary Lessee or Contractor and Convict. — It has been held that the relation of master and servant does not exist between a penitentiary convict and one who enters into a contract with the pub- lic authorities for the service of such convict together with the service of a large number of other convicts; since the contractor does not employ or select the convicts and has not the power to enforce obedi- ence from them or to discharge them.'^^^ On the other hand, outside of the question whether the technical relation of master and servant exists, it is plain that the lessee of a body of penitentiary convicts owes the same duty to them to exercise reasonable care to the end that the machinery and other appliances with which he requires_them to work are reasonably safe for the purposes intended, that he would stand under toward his proper servant.^^^ Again, it is perfectly plain that the relation of master and servant may exist between the ""Schrubbe v. Connell, 69 Wis. "= Cunningliam v. Bay State &c. 476; s. c. 34 N. W. Rep. 502. Co., 25 Hun (N. Y.) 210. ^'°Ante, §§ 581, 582. '^ Hartwig v. Bay State Shoe &c. "'Gaines v. Bard, 57 Ark. 615; Co., 43 Hun (N. Y.) 425; s. c. re- s. c. 22 S. W. Rep. 570. versed on the ground of contribu- tory negligence, in 118 N. Y. 664. 1 Thomp. Neg.J doctrine of respondeat superior. lessee of the penitentiary and the convict in respect of the rights of third persons. Accordingly it has been held that such lessee who places a convict in charge of the premises with orders to protect them from trespassers, stands in the relation of master and servant, and is liable for an injury inflicted by the latter in ejecting a person with unnecessary violence, although it may have been done contrary to his express orders."^* On the other hand, the lessees of the penitentiary- have been held not responsible for an injury to a convict by the de- fective construction of a bunk made by a servant of the penitentiary commissioners having charge of the convicts.^^" § 606. Carrier and Shipper of Diseased Cattle. — It has been held that a shipper of cattle acts as the servant of the railway carrier in cleaning out the cars so as to prepare them to be loaded with his cattle ; and hence if he throws out the bedding and the offal found in the cars, upon the company's right of way, where the land is not en- closed by a lawful fence, and cattle of the neighborhood, running at large, eat the bedding and thereby catch the Texas fever, the railway company may, under a statute,^^° become liable to the owner of cattle thereby killed.^^^ ^^ Ward V. Young, 42 Ark. 542. ^ Bradford v. Missouri &c. R. Co., "= Cunningham v. Moore, 55 Tex. 64 Mo. App. 475; s. c. 2 Mo. App. 373; s. c. 40 Am. St. Rep. 812. Rep. 1056. "= Mo. Rev. Stat., § 2669. 558 QUESTIONS OF PKOCEDUEE. [2d Ed. CHAPTER XVIII. QUESTIONS OF PROCEDURE INVOLVED IN THE DOCTRINE OF RESPONDEAT SUPERIOR. Section Section 610. Form of action against master 614. Matters of evidence. to recover damages arising 615. Whether servant acted within from wrong of servant. the scope of his employment 611. When master and servant may a question of fact. be jointly sued. 616. Whether the relation of master 612. Questions of pleading. and servant existed a ques- 613. Burden of proof on question of tion of fact. employment of servant. § 610. Porm of Action Against Master to Recover Damages Aris- ing from Wrong of Servant. — With respect to the form of the action, whether trespass or case, where the old system of pleading still pre- vails, the following may be stated as the fair result of the eases: If the command of the master is to do a lawful act, and the servant does it in an unlawful manner, so as to injure another, then case, and not trespass, is the proper remedy.^ But where the act which the master commands the servant to do is unlawful in itself, and the wrong does not result merely from the manner of doing it, trespass will lie.^ It results that case, and not trespass, is the form of action for all in- juries arising from the servant's negligence or unskillfulness, not authorized or commanded by the master.^ To illustrate: If a rail- way passenger refuses to pay his fare, and the conductor, in ejecting him from the train, which he may lawfully do, puts him off while the train is in motion, or uses excessive force, whereby a cause of action accrues to the passenger, the action against the company will be case. But if the company directs its conductors to collect illegal fares of passengers, and a passenger resists payment, for which cause the con- " Illinois &c. R. Co. v. Reedy, 17 Rolt, 4 Exch. 365. See Illinois &c. 111. 580; St. Louis &c. R. Co. v. R. Co. v. Downey, 18 111. 259. Dalby, 19 111. 353, 375; Lindsay v. = St. Louis &c. R. Co. v. Dalby, 19 Griffin, 22 Ala. 629; Bath v. Caton, 111. 353, 375; Gregory v. Piper, 9 37 Mich. 199, 203; McManus v. Crick- Barn. & Cress. 591; s. c. 2 Thomp. ett, 1 Bast 106; s. c. 2 Thomp. Neg., Neg., 1st ed., 862. 1st ed., 865; Sharrod v. London &c. = Philadelphia &c. R. Co. v. Wilt, R. Co., 4 Exch. 580; Morley v. Gais- 4 Whart. (Pa.) 143. ford, 2 H. Black. 442; Gordon v. 559 1 Thomp. Neg.J doctrine op eespondeat superioe. ductor puts him ofE the train, the action against the company will be trespass ;* and the use of any excessive force heyond what was neces- sary to execute the unlawful order, or any carelessness on the part of the conductor, whereby the passenger is specially injured, will go in aggravation of damages. It should be added that, under the English doctrine springing out of a case'* which acquits the master where the servant acted willfully, it is seldom that a state of facts will arise where trespass will lie against the master, unless he commanded the act. "The result of the authorities," said Parke, B., "is, that if the servant, in the course of his master's employ, drives over any person, and does a willful injury, the servant, and not the master, is liable in trespass; if the servant, by his negligent driving, causes an injury, the master is liable in case; if the master himself is driving, he is either liable in case for his negligence, or in trespass because the act was willful."* § 611. When Master and Servant may be Jointly Sued.a^ — From these considerations it follows, that in those cases where the injury done by the servant was in pursuance of a direct command of the master, or where he has made it his own by subsequent ratification, and where at common law the form of the action against the master would hence be trespass, the servant may be joined in the same action with the master ; for in trespass all are principals, — ^he who commands the trespass as well as he who commits it.^ But in those eases where the wrong consists in the manner in which the servant has executed a lawful order of the master, they can not in all cases be joined; be- cause, while the action against the master is case,' that against the servant may be trespass, — as, where his act is a direct act of force. Another reason given for this conclusion is, that in these cases, the wrong proceeding directly from the servant, and not directly from the master, the latter, if compelled to pay the damages, would have an action over against the former; but he would not at common law be entitled to such an action, where the judgment went against both *St. Louis &c. R. Co. V. Dalby, 19 Broughton, 1 Cromp. & M. 29; s. c. 111. 353, 375. 3 Tyrw. 220. " McManus V. Crickett, 1 East 106 ; a This section is cited in §§ 588, s. c. 2 Thomp. Neg., 1st ed., 865. 1115. 'Gordon v. Rolt, 4 Exch. 465, 466. ' Hewett v. Swift, 3 Allen (Mass.) See also Savignac v. Roome, 6 Term 420; s. c. 10 Am. L. Reg. 505; Whit- Rep. 125. Where the master was amore v. Waterhouse, 4 Car. & P. sitting by the side of his servant, 383, per Parke, J. Compare More- who was driving him, in his gig, ton v. Hardern, 6 Dow. & Ry. 275; and his horse ran away, doing an s. c. 4 Barn. & Cress. 223. immediate injury to the plaintiff's 'Parsons v. Winchell, 5 Cush. property, it was held that the proper (Mass.) 592. action was trespass: Chandler v. 560 QUESTIONS OF PROCEDURE. [2d Ed. as joint tort-feasors. ° This reason, however, is not conclusive against joining them; for it is believed that, under the codes, joint actions are constantly maintained by travellers who have been injured in conse- quence of obstructions in highways, against the private wrong-doer who was the author of the obstruction, and the municipal corporation which suffered it to continue ; and yet the latter, if compelled to satisfy the judgment, is entitled to a recovery over against the former.^" The question, however, is not clear upon authority, even at common law. In one old case^^ a master sent his servant to train two ungovernable horses in Lincoln's-Inn-Fields ; who being unable to govern them, they ran upon the plaintiff, injuring him. An action on the case was sus- tained against both master and servant, the wrong imputed to the master being the sending of such horses to be trained in such a place. On the contrary, where a joint action on the case was brought against a father and his son, for the willful act of the latter in driviiLg his father's wagon over a boy, and injuring him, Cowen, J., said that, in a case of strict negligence by a servant while employed in the service of his master, he saw no reason why an action could not lie against both jointly ; but it was held that the father was not liable, because the act of the son was willful.^^ In still another case^* a joint action of tort — which, in Massachusetts, appears to cover the grounds both of trespass and of case at common law — was brought against a railway company and its conductor, for the act of the latter in ejecting the plaintiff from one of its trains, under the pretense that he had not paid his fare. Thomas, J., saw no difficulty in joining the corpora- tion with their servant in the same action. But the question was not fairly presented, for the jury found a verdict in favor of the con- auctor, though against the corporation; and this was held to relieve the difficulty, if any existed. Under the codes of New York and In- diana, which, as is well known, abolish forms of action, the master and servant may be joined in one action.^* § 612. Questions of Pleading. — A petition in an action for dam- ages, against a railroad company, alleged that the defendant, in oper- ating its road, carried on its trains signal torpedoes which, to all ap- pearances, were harmless, but which were, in reality, highly explosive "Parsons v. Winchell, 5 Cush. "Moore v. Fitchburg Railroad (Mass.) 592. Corporation, 4 Gray (Mass.) 465. "2 Thomp. Neg., 1st ed., 789. "Montfort v. Hughes, 3 E. D. "Michael v. Alestree, 2 Lev. 172; Smith (N. Y.) 591; Phelps v. Wait, s. c. sub nom. Michell v. Allestry, 1 30 N. Y. 78; Suydam v. Moore, 8 Vent. 195; s. c. sui nom. Mitchil v. Barb. (N. Y.) 358, per Willard, J.; Alestree, 3 Keb. 650. Wright v. Compton, 53 Ind. 337. See "Wright v. Wilcox, 19 Wend. (N. Hinds v. Harbou, 58 Ind. 121; Hew- Y.) 343. ett V. Swift, 3 Allen (Mass.) 420; s. c. 10 Am. L. Reg. 505. VOL. 1 THOMP. KEG. — 36 OOl 1 Thomp. Neg.] doctrine of respondeat superior. articles, easily exploded through handling, and dangerous to human life, which the defendant knew ; that, while running a train of cars on its road, carrying these torpedoes, it was stopped at a water station on its road in a thickly inhabited neighborhood, and that the servants of the defendant took several torpedoes from the train, and, while so in the control and management of the train, wantonly placed them on its road, in an exposed place, where, if left unexploded, they would be likely to cause injury to others; that there was no reason or necessity for using the torpedoes at that time or place, but that the same were used in mere wantonness and with a view that the train, on being moved forward, would pass over and explode the same; that the de- fendant negligently failed to explode all such torpedoes; but left one of them negligently exposed, unexploded and in full view, at a point or place on its road, and over which children were accustomed to go, without objection or hindrance, of all of which the defendant had knowledge ; that the defendant negligently and in willful disregard of the safety of those whom the defendant knew were in the daily habit of using the road as a pathway, permitted such unexploded torpedo to remain upon its road undestroyed and unguarded from reach and observation by passers-by ; that, immediately after the train had moved on, a boy about nine years old, who, with the knowledge of the de- fendant, was coming on the track behind the train, discovered the torpedo, picked it up and exhibited it to the plaintiff, a boy ten years old, and to several other boys of alDOut the same age, all of whom were ignorant of its dangerous explosive character ; and while it was being so exhibited, near where it was thus found, it exploded without the fault of the plaintiff, with such force that it tore off his left arm and otherwise injured him to his damage, etc. It was held that this peti- tion stated a cause of action and that it was error to sustain a de- murrer thereto. ^^ Afterwards there was a trial on the merits, a re- covery of damages and an affirmation of the judgment by the Supreme Court of Ohio in a very lucid opinion by Minshall, C. J.^^ On the " Harriman v. Railroad Co., 45 explosives, by shifting the respon- Ohio St. 11; s. c. 12 N. B. Rep. 451. sibility to the servants; but that The same accident caused the injury where servants are entrusted with in another case, for which the orig- the custody and use of such agen- inal action in Harriman v. Railroad cies, it becomes a part of their em- Co., 45 Ohio St. 11, was brought, ployment, and their negligence in The judgment in that case was re- regard to such duty is imputed to versed by the Supreme Court for the master. The servants' negli- error in sustaining a demurrer to gence in their use and custody (and the petition; the petition in this it matters not what use may have case is substantially the same as in been made of them) makes the mas- the Harriman case. In this case it ter liable to one injured by such was held that a master can not ex- negligence: Railway v. Shields, 47 onerate himself for the negligence Ohio St. 387; s. c. 24 N. B. Rep. 658. of his servants in the use and cus- " Harriman v. Railroad Co., 45 tody of dangerous agencies, such as Ohio St. 11; s. c. 12 N. E. Rep. 451. 562 QUESTIONS OF PROCEDURE, [2d Ed. other hand, it has been held that a declaration alleging that defend- ant's servant, while watching and having charge of defendant's lum- ber-yard, maliciously beat plaintiff, under an assumption that plaintiff was trespassing, does not state a cause of action against de- fendant, it not sufficiently appearing therefrom that the assault was committed by the servant within the scope of his employment. ^^ A complaint alleging that the servants of the defendant "acting in the line of their duty and within the scope of their employment, and under the directions and instructions of the defendant wrongfully and unnecessarily killed a mule belonging to the plaintiff which had been injured by a train of cars of the defendant," — has been held good on demurrer.^* As the doctrine of respondeat superior is a rule of public policy which identifies the master with the servant for the purpose of saving the rights of third persons, it is not necessary, in stating a cause of action against the master for the wrong of his servant, to allege that the master knowingly employed an incompetent servant,^" — unless, as is sometimes the case, the action proceeds on that ground.^" § G13. Burden of Proof on ftuestion of Employment of Servant. — In an action for an injury, caused by the misconduct of a servant, the plaintiff discharges the burden of proof on his part by showing that, at the time when the injury was done, the servant was in the employ- ment of the defendant in his regular business: it is not incumbent upon him to show further that the servant was acting in the course of his employment, but if the defense is that at the particular time he had deviated from his employment to effect some purpose of his own, the burden of showing that fact will be on the defendant.^ ^ § 614. Matters of Evidence. — Where it is made to appear that the servant acted in accordance with a course of conduct known to and sanctioned by the master, this will be sufficient to charge the master ; and evidence tending to show such knowledge and assent on the part , of the master is, of course, material. Thus, in an action for dam- ages, caused by the negligence of a servant of the defendant, in leav- ing his horse unhitched in a city, whereby it ran away, it was held that evidence of a long-continued and notorious habit on the part of the particular servant, in leaving his master's horse so unhitched, might be shown for the purpose of making it appear that the act was done with the knowledge and sanction of the master.^^ " McCann v. Tillinghast, 140 Mass. " Haywood v. Hedrick, 94 Ind. 327. 340. "Banister v. Pennsylvania Co., 98 ''Ante, § 529. Ind. 220. =• Schulte v. Holliday, 54 Mich. 73. ^ Schulte V. Holliday, 54 Mich. 73. 56? 1 Thomp. Neg.J doctrine of bespondeat superior. § 615. Whether Servant Acted within the Scope of his Employ- ment a Question of Fact. — It is obviously a question of fact for the determination of a jury whether, at the time of the particular act or omission by the servant which caused the injury, the plaintiff's servant was acting within the scope of his employment, or acting outside of it to effect some purpose of his own. Upon such a question the verdict of a jury^^ will be conclusive, provided, of course, there is substantial evidence to support it.^* § 616. Whether the Relation of Master and Servant Existed, a Question of Fact. — Whether the person whose immediate negligence or misconduct caused the particular injury was acting at the time as the servant of the person sought to be charged, frequently depends on such a variety of facts that it falls outside of any definite rule, and for that reason becomes, under proper instructions, a question of fact for the jury.^^ =' Whatman v. Pearson, L. R. 3 C. 194; Crockett v. Calvert, 8 Ind. 127; P. 422; Mott v. Consumers' Ice Co., Kellogg v. Payne, 21 Ind. 575; What- 73 N. Y. 543; s. c. 18 Alb. L. J. 90; 6 man v. Pearson, L. R. 3 C. P. 422; Reporter 404; Cohen v. Dry Dock Arasmith v. Temple, 11 111. App. 39; &c. R. Co., 69 N. Y. 170. Southern Express Co. v. Brown, 67 ^* Schulte V. HoUiday, 54 Mich. 73. Miss. 260; s. c. 7 South. Rep. 318. '^Kimhall v. Cushmau, 103 Mass. 564 TITLE FIVR INDEPENDENT CONTRACTORS. 565 TITLE FIVE. INDEPENDENT CONTRACTORS. Chaptee XIX. Non-Liability of Proprietor for Wrongs of In- dependent Contractor, §§ 630-641. XX. Cases where the Proprietor Eemains Liable, . §§ 645-680. XXI. Liability of the Contractor, §§ 685-690. CHAPTER XIX. NON-LLiBILITT OF PEOPKIETOE FOE WEONGS OF INDEPENDENT CONTEACTOE. Section 620. Overruled doctrine of Bush v. Steinman, that the owner of fixed property is liable for the negligence of independ- ent contractors. 621. General rule. 622. General statement as to who are independent contractors. 623. Some illustrations of this state- ment. 624. Statement of the rule in the case of building contracts. 625. Illustrations in the case of building contracts. 626. In case of railway contracts. 627. Further illustrations in the case of railway contracts. 628. Other railway illustrations. 629. Working by the day or by the job. w60. Cases where the person work- ing by the job was held to be a servant. Section 631. Cases where one working by the day was held to be an in- dependent contractor. 632. Other illustrative cases. 633. Surgeons employed by steam- ship companies, railway com- panies, etc. 634. Owner and charterer of ship. 635. Stevedores loading and unload- ing vessels. 636. Liability of ship-owner or char- terer to servant of stevedore. 637. Mine-owner and master ore- digger. 638. Licensed carriers, drovers, warehousemen, watermen, etc. 639. Unlicensed carriers, drovers, etc. 640. Question is for the court, not for the jury. 641. Proprietor not liable for an in- jury upon one contractor by another. 567 1 Tliomp. Neg.] independent contractors. § 620. Overruled Doctrine of Bush v. Steinman, that the Owner of Fixed Property is Liable for the Negligence of Independent Con- tractors. — In Biish V. Steinman,^ it was held that the owner of lands was liable for all injuries resulting from the negligence of employes engaged in executing work upon his lands, though the work was done by a contractor who had contracted to do the work, and who employed the servant through whose negligence the injury happened. This case was recognized as authority, for a time, in England,^ and in a few cases in this country.^ It was at first restricted, so as to apply only to real property, making a difference between the liability of pro- prietors of fixed and movable property for the acts of contractors. It was considered that a man owed a duty to his neighbor so to watch his immovable property and exercise dominion over it that it should not work hurt to others, and that he ought not to be allowed to evade this duty by alleging that the act was that of an independent contractor.* But this distinction was finally denied, ° and Bush v. Steinman has come to be one of the most distinctly overruled oases in the books.* § 621. General Rule.^ — ^It is a general rule that one who has con- tracted with a competent and fit person, exercising an independent employment, to do a piece of work not in itself unlawful, or of such a nature that it is likely to become a nuisance, or to subject third per- sons to unusual danger, according to the contractor's own methods, and without being subject to control except as to the results of his work, and subject to other qualifications hereafter stated, — will not be >Bos. & Pul. 404. (N. y.) 288; McCaflerty v. Spuyten = Sly v. Bdgely, 6 Esp. 6; Randle- Duyvil &c. R. Co., 61 N. Y. 178; Gil- son v. Murray, 8 Ad. & B. 109. bert v. Beach, 4 Duer (N. Y.) 423; = Lowell V. Boston &c. R. Co., 23 s. e. 5 Bosw. (N. Y.) 445; 16 N. Y. Pick. (Mass.) 24; New York v. 606; Rapson v. Cubitt, 9 Mee. & W. Bailey, 2 Denlo (N. Y.) 433; Stone 710; s. c. Car. & M. 641; 6 Jur, 606. v. Cheshire R. Co., 19 N. H. 427; Compare Reedie v. London &c. R. Wiswall V. Brinson, 10 Ired. L. (N. Co., and Hobbitt v. London &c. R. C.) 554; Memphis v. Lasser, 9 Co., 4 Exch. 244, 254. Humph. (Tenn.) 760; Nashville v. « Quarman v. Burnett, 6 Mee. & W. Brown, 1 Heisk. (Tenn.) 1; Silvers 499; Hobbitt v. London &c. R. Co., V. Nerdlinger, 30 Ind. 53; Meyers 4 Exch. 254; Hilliard v. Richardson, V. Snyder, Bright. (Pa.) 489. 3 Gray (Mass.) 349; Painter v. ♦Stone V. Cheshire R. Co., 19 N. Pittsburgh, 46 Pa. St. 213; Pack v. H. 427. This case is questioned in New York, 8 N. Y. 222 ; Cuff v. New- Wright V. Holbrook, 52 N. H. 120. ark &c. R. Co., 35 N. J. L. 17, 574; ^ It was denied in the celebrated Kellogg v. Payne, 21 Iowa 575 ; Al- case of Littledale, J., in Laugher v. len v. Willard, 57 Pa. St. 381 ; Pawlet Pointer, 5 Barn. & Cress. 547. See, v. Rutland &c. R. Co., 28 Vt. 297; to the same effect, the able opinion King v. New York &c. R. Co., 66 of Field, J., in Boswell v. Laird, 8 N. Y. 181; Ryder v. Thomas, 13 Hun Cal. 469, 496; King V. New York &c. (N. Y.) 296; Gilbert v. Beach, 4 R. Co., 66 N. Y. 181; Ryder v. Duer (N. Y.) 423; rev'd on other Thomas, 13 Hun (N. Y.) 296; Con- grounds, 16 N. Y. 606; Gourdier v. lin V. Charleston, 15 Rich. L. (S. C.) Cormack, 2 E. D. Smith (N. Y.) 254. 201; Benedict v. Martin, 36 Barb. a This section is cited in § 771. ' 568 NON-LIABILITY OF PEOPillETOR. [2d Ed. answerable for the wrongs of such contractor, his subcontractors or his servants, committed in the prosecution of such work.' 'I have stated the rule broadly, (N. Y.) 301; Potter v. Seymour, 4 bringing into use all the well-recog- Bosw. (N. Y.) 140; Kelly v. New nized qualifications. All of the fol- York, 11 N. Y. 432; s. c. 4 E. D. lowing cases support it, and some Smith (N. Y.) 291; Gent v. New o( them exclude some of the qualifi- York, Seld. Notes 240; Gardner v. cations: Harkins v. Standard Sugar Bennett, 6 Jones & Sp. (N. Y.) 197; Refinery, 122 Mass. 400; Morgan v. King v. New York &c. R. Co., 66 Bowman, 22 Mo. 538; Barry v. St. N. Y. 182 (reversing 4 Hun (N. Y.) Louis, 17 Mo. 121; Clark v. Hanni- 769); Earl v. Beadleston, 10 Jones bal &c. R. Co., 36 Mo. 202; Cuff v. & Sp. (N. Y.) 294; Butler v. Hunter, Newark &c. R. Co., 35 N. J. L. 17; 7 Hurl. & N. 826; Gourdier v. Cor- Peachey v. Rowland, 13 C. B. 181; mack, 2 E. D. Smith (N. Y.) 254 s. c. 17 Jur. 764; 22 L. J. (C. P.) 81; (see the same case, 2 E. D. Smith Boswell V. Laird, 8 CaL 469; Du (N. Y.) 200); Innocent v. Peto, 4 Pratt V. Lick, 38 Cal. 691; Fanjoy v. Fost. & Fin. 8; Brown v. Accrington Seales, 29 Cal. 243; Scammon v. Chi- Co., 3 HurL & Colt. 511; s. c. 34 L. cago, 25 111. 424; West v. St. Louis J. (Exch.) 208; 13 L. T. (N. S.) 94; &c. R. Co., 63 111. 545; Prairie State Allen v. Hayward, 7 Q. B. 960; 10 Loan and Trust Co. v. Doig, 70 111. Jur. 92; s. c. 15 L. J. (Q. B.) 99; 52; Blake v. Ferris, 5 N. Y. 48; 4 Eng. RaiL Cas. 104; Vanderpool Kellogg V. Payne, 21 Iowa 575; Cal- v. Hussen, 28 Barb. (N. Y.) 196; lahan v. Burlington &c. R. Co., 23 Knight v. Fox, 5 Exch. 721; s. c. 14 Iowa, .562; Wood v. Indian School Jur. 963; 20 L. J. (Exch.) 9; Daniel District, 44 Iowa 27; Kansas &c. R. v. Metropolitan R. Co., L. R. 5 H. L. Co. v. Fltzsimmons, 18 Kan. 34; 45; s. c. 40 L. J. (C. P.) 121; 24 L. Robinson v. Webb, 11 Bush (Ky.) T. (N. S.) 815; 20 Week. Rep. 37; 464; Hilliard v. Richardson, 3 Gray Goslin v. Agricultural Hall Co., 1 (Mass.) 349; s. c. 2 Thomp. Neg., C. P. Div. 482; Deford v. The State, 1st ed., 868; Forsyth v. Hooper, 11 30 Md. 179; Cincinnati v. Stone, 5 Allen (Mass.) 419; Linton v. Smith, Ohio St. 38; Clark v. Fry, 8 Ohio St. 8 Gray (Mass.) 147; Coomes v. 358; Harrison v. Collins, 86 Pa. St. Houghton, 102 Mass. 211; Allen v. 153; 5 Reporter 760; 17 Alb. L. J. Willard, 57 Pa. St. 374; Brie v. 398; 6 Cent. L. J. 401; 35 Leg. Int. Caulkins, 85 Pa. St. 247; Pierrepont 202; Schweickhardt v. St. Louis, 2 V. Loveless, 72 N. Y. 211; Reedie v. Mo. App. 571; Kepperly v. Ramsden, London &c. R. Co., 4 Exch. 244; s. c. 83 111. 354; Jefferson v. Chapman, 6 Eng. Rail. Cas. 184; Pawlet v. 127 IlL 438; s. c. 20 N. E. Rep. 33; Rutland &c. R. Co., 28 Vt. 297; aff'g s. c. 27 111. App. 43; Maltbie v. Knight v. Fox, 5 Exch. 721; Schular Bolting, 26 N. Y. Supp. 903; s. c. 56 V. Hudson River U. Co., 38 Barb. N. Y. St. Rep. 243; 6 Misc. (N. Y.) (N. Y.) 653; Detroit v. Corey, 9 339; Mickee v. Wood Mowing &c. Mich. 165; Darmstaetter v. Moyna- Mach. Co., 77 Hun (N. Y.) 559; s. c. ban, 27 Mich. 188; Hale v. Johnson, 60 N. Y. St. Rep. 282; 28 N. Y. Supp. 80 111. 185; Conners v. Hennessey, 918; Mahon v. Burns, 9 Misc. (N. 112 Mass. 96; Wright v. Holbrook, Y.) 223; s. c. 60 N. Y. St. Rep. 840; 52 N. H. 120; Pack v. New York, 8 29 N. Y. Supp. 682; Bailey v. Troy N. Y. 222; Painter v. Pittsburgh, 46 &c. R. Co., 57 Vt. 252; s. c. 52 Am. Pa. St. 213; Hunt v. Pennsylvania Rep. 129; Woods v. Trinity Parish, R. Co., 51 Pa. St. 475; Reed v. Alle- 21 D. C. 540; s. c. 21 Wash. L. Rep. gheny City, 79 Pa. St. 300; Wray v. 259; Martin v. Tribune Assoc, 30 Evans, 80 Pa. St. 102; Ryder v. Hun (N. Y.) 391; Wiener v. Ham- Thomas, 13 Hun (N. Y.) 296; Clark mell, 39 N. Y. St. Rep. 198; s. c. 14 V. Vermont &c. R. Co., 28 Vt. 103; N. Y. Supp. 365; Rotter v. Goerlitz, Van Wert v. Brooklyn, 28 How. Pr. 34 N. Y. St. Rep. 1001; s. c. 12 N. Y. (N. Y.) 451; Benedict v. Malrtin, 36 Supp. 210; Long v. Moon, 107 Mo. Barb. (N. Y.) 288; Barrett v. Singer 334; s. c. 17 S. W. Rep. 810; Bibb Man. Co., 1 Sweeney (N. Y.) 545; v. Norfolk &c. R. Co., 87 Va. 711; McCafferty v. Spuyten Duyvil &c. R. s. c. 47 Am. & Eng. Rail. Cas. 651; Co., 61 N. Y. 178; O'Rourke v. Hart, 14 S. E. Rep. 163; State v. Swayze, 7 Bosw. (N. Y.) 511; s. c. 9 Bosw. 52 N. J, L. 129; s, c. 18 Atl. Rep. 569 1 Thomp. Neg.] independent contractors. § 622. General Statement as to Who are Independent Con- tractors. — An independent contractor, -within the meaning of this rule, is one who renders service in the course of an occupation, repre- senting the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.' The contractor must answer for his own wrongs and the wrongs committed in the course of the work by his servants.' And if the proprietor has been compelled to pay damages on account of the negligence of the con- tractor, he may recover them from the contractor.^" In every case, the decisive question is, Had the defendant the right to control, in the given particular, the conduct of the person doing the wrong ?^^ Does he reserve to himself the essential powers of a master ?^^ It is but another form of language, expressing the same idea, to say that the true test to determine whether one who renders service to another does so as a contractor, or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.^^ On this question, the contract under 697; Moline v. McKinnle, 30 111. App. 419; Vincennes Water Supply Co. V. White, 124 Ind. 376; s. c. 24 N. E. Rep. 747; Reynolds v. Bralthwaite, 131 Pa. St. 416; s. c. 18 Atl. Rep. 1110; 20 Pitts. L. J. (N. S.) 361; 25 W.N.C. (Pa.) 269; 47 Phila. Leg. Int. (Pa.) 426; Powell v. Construction Co., 88 Tenn. 692; s. c. 13 S. W. Rep. 691; Wabash &c. R. Co. v. Farver, 111 Ind. 195; s. c. 9 West. Rep. 621; 12 N. B. Rep. 296; Brown v. Mc- Leish, 71 Iowa 381; s. c. 32 N. W. Rep. 385; Lendberg v. Brotherton &c. Co., 97 Mich. 443; s. c. 42 N. W. Rep. 675; aff'g s. c. 75 Mich. 84; North Chicago Street R. Co. v. Dudgeon, 69 111. App. 57; Smith v. Spitz, 156 Mass. 319; s. c. 31 N. E. Rep. 5; Jefferson v. Jameson &c. Co., 165 111. 138; reversing s. c. 60 111. App. 587. The rule is substan- tially the same under the Civil Code of Louisiana; Peyton v. Richards, 11 La. An. 62; Davie v. Levy, 39 La. An. 551; s. c. 2 South. Rep. 395; and under the Civil Code of Georgia, § 2962: Harrison v. Kiser, 79 Ga. 588; s. c. 4 S. E. Rep. 320. There is a valuable note on' this subject in 9 L. R. A. 604. * Mercur, J., in Harrison v. Collins, 86 Pa. St. 153. "Holt V. Whatley, 51 Ala. 569; Shaw V. Crocker, 42 Cal. 435. As to 670 liability of canal contractors in New York, see French v. Donaldson, 5 Lans. (N. Y.) 293; Robinson v. Chamberlain, 34 N. Y. 389; Fulton Ins. Co. V. Baldwin, 37 N. Y. 648; Adsit V. Brady, 4 Hill (N. Y.) 630; Conroy v. Gale, 5 Lans. (N. Y.) 344. "Pfau V. Williamson, 63 111. 16. " Morgan v. Smith, 159 Mass. 570 ; s. c. 35 N. E. Rep. 101; Charlock v. Freel, 125 N. Y. 357; s. c. 34 N. Y. St. Rep. 971; 26 N. B. Rep. 262; aff'g s. c. 50 Hun (N. Y.) 395; 21 N. Y. St. Rep. 963; Stephen v. Commis- sioners, 3 Sc. Sess. Cas. 4th Series, 535; Linnehan v. Rollins, 137 Mass. 123; s. c. 50 Am. Rep. 287; Hex- amer v. Webb, 101 N. Y. 377; s. c. 54 Am. Rep. 703; Carlson v. Stocking, 91 Wis. 432 ; s. c. 65 N. W. Rep. 58; Holmes v. Tennessee Coal &c. R. Co., 49 La. An. 1465; s. c. 22 So. Rep. 403 ; Atlantic Transport Co. V. Coneys, 82 Fed. Rep. 177; s. c. 51 U. S. App. 570 (ship carpenter). '^ Burton v. Galveston &c. R. Co., 61 Tex. 526. " Rome &c. R. Co. v. Chasteen, 88 Ala. 591; s. c. 7 South. Rep. 94; 40 Am. & Eng. Rail. Cas. 559; Powell V. Virginia Constr. Co., 88 Tenn. 692 ; s. c. 13 S. W. Rep. 691; Bibb v. Nor- folk &c. R. Co., 87 Va. 711; s. c. 14 S. E. Rep. 163; 47 Am. & Eng. Rail. Cas. 651. NON-LIABILITY OF PROPRIETOR. [2d Ed. which the work has been done must speak conclusively in every case, reference being had, of course, to surrounding circumstances. This being so, the mere fact that the agent who did the injury carried on a separate and independent employment will not absolve his principal from liability.^* "If such were the rule, a party would be exempt from responsibility even for the negligent acts of his domestic serv- ants, such as his cook, coachman, or gardener." § 623. Some Illustrations of this Statement. — A. contracted with B. that B. should cut timber upon the land of A. and deliver it at a certain price per foot at the mouth of a river, using the dams of A. in driving the logs if he should choose. B. used the dam of A. in such an unreasonable manner as to flow the adjacent lands of C. A. had nothing to do with cutting or driving the logs and exercised no control over B. in that particular. It was held that A. was not liable for the damage done to the land of C, but that the responsibility for such damage rested upon B.^° If the master or owner of a ship con- tracts with a competent stevedore to load her and does not control or direct him or his servants in the operation, the master or owners will not be responsible for damages resulting from the negligence of such servants.^* A person who carried on the business of roofing build- ings with slate was employed to make repairs on the roof of a church. While his men were engaged in making such repairs, they carelessly allowed a ladder in use by them to be blown down by the wind, and it fell upon the plaintiff and injured him. In a suit against the parish it was held that the slater was carrying on what the law denominated an independent business, and that the defendants were not liable.^^ A company, whose business was the collecting and vending of natural gas, employed a contractor to lay a line of pipes in a city street. Through the negligence of the contractor an explosion occurred, injur- ing the plaintiff. It was held that the plaintiff could not recover damages from the gas company, unless the gas company had accepted the work from the contractor before the explosion took place, or knew or ought to have known, that the work was done in such a manner as to be dangerous.^' A street railway company was not liable for the negligence of a contractor in building its railway, in stretching a rope of wire across a public street, where the contractor was simply engaged to construct the road, and the manner of doing the work was left to "Brackett v. Lubke, 4 Allen Ga. 229; s. c. 54 Am. Rep. 874; (Mass.) 138; Sadler v. Henlock, 4 Sweeny v. Murphy, 32 La. An. 628. El. & Bl. 570. " McCarthy v. Portland Second "Carter v. Berlin Mills Co., 58 N. Parish, 71 Me. 318; s. c. 36 Am. St. H. 52; s. c. 42 Am. Rep. 572. Rep. 320. " Rankin v. Merchants' &c. Co., 73 " Chartiers Valley Gas Co. v. 571 1 TllOnip. I' eg.] INDEPENDENT CONTKACTOr.3. his skill and judgment, although he was not a resident of tRe State.^' A company engaged to construct a pipe line upon certain land, let out a part of its contract to an independent subcontractor. The company informed the subcontractor that he had a lawful right to go upon the land. His entry upon the land was resisted by the daughter of the owner of the land, and an encounter followed in which she was in- jured. The company employing the subcontractor were not liable for this injury.^" A tenant consented that his landlord might make repairs on the building. The landlord employed an independent con- tractor to make the repairs, and the tenant was injured through his negligence. It was held that the landlord was not liable."^ § 624. Statement of the Rule in the Case of Building Contracts. — Probably the most frequent application of the rule is met with in the case of contracts for the erection or repair of buildings. When the owner or occupier of land contracts with a builder to erect a building or other structure thereon, according to certain plans and specifica- tions, the contractor to furnish all materials and labor and to be an- swerable to the owner only for certain results, he will not be deemed the servant of the owner,^^ although the work is to be done under the supervision of an architect selected by the owner; and the owner will not be liable for his negligence or that of his servants, unless the work is intrinsically dangerous,^' or unless the nature of the work is such that in letting it to the contractor the owner commits to him some absolute duty which rests upon his shoulders as the owner of the property.^* If, under such a contract, the excavation for the building Lynch, 118 Pa. St. 362; s. c. 12 Atl. Brown, 148 U. S. 615; s. c. 37 L. ed. Rep. 435; 21 W. N. C. (Pa.) 44. 582; 13 Sup. Ct. Rep. 672. The fact " Sanf ord v. Pawtucket Street R. that contractors are to be paid for Co., 19 R. I. 537, Index SS, 126; the materials used by them at a cer- s. c. 33 L. R. A. 564; 4 Am. & Eng. tain per cent, above cost does not R. Cas. (N. S.) 318; 35 Atl. Rep. 67. take the case out of this rule: Alex- "» Slingerland v. East Jersey Water ander v. Mandeville, 33 111. App. 589; Co., 58 N. J. L. 411; s. c. 33 Atl. Rep. Whitney &c. Co. v. O'Rourke, 68 111. 843. App. 487. ^ Jefferson v. Jameson &c. Co., 165 ^ Post, § 652. 111. 138; s. c. 46 N. E. Rep. 272; re- '•Robinson v. Webb, 11 Bush versing 60 111. App. 587. (Ky.) 464; Erie v. Caulkins, 85 Pa. 2' Jefferson v. Jameson &c. Co., 165 St. 247; Ryder v. Thomas, 13 Hun 111. 138; s. c. 46 N. E. Rep. 272; (N. Y.) 206; Gilbert v. Beach, 4 rev'g s. c. 60 111. App. 587. Con- Duer (N. Y.) 4.'23; s. c. 5 Bosw. (N. tractors who agree to furnish suit- Y.) 445; 16 N. Y. 606; Clare v. Na- able material and construct certain tional City Bank, 8 Jones & Sp. (N. specified and described piers, subject Y.) 104; Brown v. Accrington Co., 3 to the daily approval of the engi- Hurl. & Colt. 511; s. c. 34 L. J. neers of the companies for whom the (Exch.) 208; 13 L. T. (N. S.) 94; piers are to be built, are independ- Vanderpool v. Husson, 28 Barb. (N. ent contractors and liable for inju- Y.) 196; Bedford v. The State, 30 ries to third persons resulting from Md. 179; Clark v. Fry, 8 Ohio St. their own negligence: Casement v. 358. 572 NON-LIABILITY OF PKOPKIETOR. [2(1 Ed. is SO negligently done as to injure a structure on adjoining premises, the owner will not be liable, provided the plans and specifications furnished to the contractor were sufficient to secure a safe construction of the building, and provided the erection of the building was not, in its nature, dangerous to adjacent property.^^ This rule is of especial force where the owner, in pursuance of such a contract, commits the entire care and control of the premises to the contractor. Here the owner will not be liable for an injury to a traveller in consequence of an excavation in the street being left unguarded,-" though under cer- tain circumstances the rule will be otherwise. ^^ An owner of land who employs a carpenter, for a specific price, to alter and repair a building thereon, and to furnish all the materials for this purpose, is not liable for damages happening to a third person in consequence of driving upon a pile of boards, deposited in the highway, in front of the land, by a teamster in the employ of the carpenter, intended to be used in making such alterations and repairs.^* Nor, under a similar contract, will the proprietor be liable if the house falls down in conse- quence of the negligence or unskillfullness of the carpenter, injuring the house of another proprietor. ^° But if a carpenter is employed to make certain repairs on a house, without any stipulation as to the terms, price, or time of doing the work, he becomes the servant of the hirer, and the latter must pay the damages done to a third person by his negligence.*" A. being notified by the authorities of the city to take down his house, or to make it safe, thereupon entered into an oral contract with B., whereby B. agreed "to take the building down." In doing so, B. negligently weakened a party-wall, and caused the house of C. to fall. It was held that A. was not liable to C.*^ A modified expression of the rule is found in a case in Maryland, where a building in process of erection by contractors fell, injuring a trav- eller. It was held that, while the proprietor was not liable for the acts of the contractors on the principle of respondeat superior^ yet, if it could be shown that the wall was constructed in so dangerous and defective a manner as to constitute a nuisance, he would be responsible =» Crenshaw v. Ullman, 113 Mo. (Mass.) 349; s. c. 2 Thomp. Neg., 633; s. c. 20 S. W. Rep. 1077. 1st ed., 868. =° Allen V. Willard, 57 Pa. St. 374; ^'Connors v. Hennessey, 112 Mass. Erie V. Caulklns, 85 Pa. St. 247; 96. Scammon v. Chicago, 25 111. 424; '"Brackett v. Luhke, 4 Allen Pfau V. Williamson, 65 111. 16; Ryder (Mass.) 138. v. Thomas, 13 Hun (N. Y.) 296. "Earl v. Beadleston, 10 Jones & "Chicago V. Robbins, 2 Black. (U. Sp. (N. Y.) 294. So held on similar S.) 418; Robbins v. Chicago, 4 Wall, facts in Butler v. Hunter, 7 Hurl. & (U.S.) 657. It is believed, however, N. 825; s. c. 31 L. J. (Exch.) 214; that the last two cases can not be 10 Week. Rep. 214. Contra, Brown reconciled with the preceding. v. Werner, 40 Md. 15 ; Bower ' v. ""Hilliard v. Richardson, 3 Gray Peate, 1 Q. B. Div. 321. Compare post, § 1055, et seq. 573 1 Thomp. Neg.J independent contractors. for the consequences resulting from the defective work allowed to be done by the contractors; but if it were erected in an ordinarily sub- stantial and secure manner, and was overthrown by the operation of extraordinary causes, against which ordinary care, skill, and foresight could not provide, the proprietor would not be liable.'^ § 625. Illustrations in the Case of Building Contracts. — The simplest, most frequent, and most obvious illustration of the rule under consideration, is found in the case of contracts to erect or repair buildings on the premises of private owners. Where the owner of a building entered into a contract with a competent builder to make certain alterations therein, which included the taking down of a wall, the contractor to furnish the materials and to receive a fixed price for the whole work, and in consequence of his negligence in taking down the wall, a work which was not intrinsically dangerous, the wall fell and killed the plaintiff's intestate, it was held that the owner was not liable for the damages, but that the liability rested upon the contractor. ^^ The rule under consideration has been so employed as to exonerate the owner of a building from liability for an injury aris- ing from the negligence of a master plumber employed to repair water pipes in the building in his own way;^* from liability for personal injuries caused by the plaintiff falling upon a ridge of ice formed upon the sidewalk by the negligence of the employes of a contractor engaged in pumping water from a cellar ;^^ from liability for personal injuries caused by the improper management, by a servant of an inde- pendent contractor, of a hoisting apparatus furnished in a reasonably safe condition by the owner of the building;^® from liability for an injury to a passer-by, caused by a plank attached to a scaffolding by a roofer, being blown down by the wind;^' from liability for the death ==Dedford v. The State, 30 Md. 580; s. c. 37 N. Y. St. Rep. 859; 14 179. A petition alleging that de- N. Y. Supp. 616. fendant was the owner of a certain "" Piette v. Bavarian Brew. Co., 91 building, and that after it was Mich. 605; s. c. 52 N. W. Rep. 152. burned he allowed certain persons " Hexamer v. Webb, 101 N. Y. to enter on the premises for the pur- 377; s. c. 54 Am. Rep. 703. A. pose of removing the debris, which owned a building on which B. they did so unskillfully that they agreed, for a lump sum, to trim cer- knocked down the walls of the house tain stone work. B. should have on to plaintiff's premises, was held furnished his own scaffold, but as to show the relation of master and he did not A. allowed him to use one servant, making defendant liable: which had been hung by painters Dillon V. Hunt, 82 Mo. 150; aff'g s. over a rotten cornice, which gave c. 11 Mo. App. 246. way and injured B. It was held "" Engel V. Eureka Club, 137 N. Y. that A. was not liable to B. : Matthes 100; s. c. 50 N. Y. St. Rep. 188; 32 v. Kerrigan, 53 N. Y. Super. 431. N.,B. Rep. 1052. The plaintiff in this case owned a '^ Bennett v. Truebody, 66 Cal. house and lot adjoining premises 509; s. c. 56 Am. Rep. 117. on which defendant was building. ^Larow v. Clute, 60 Hun (N. Y.) He complained that through theneg- 674 NON-LIABILITY OF PROPRIETOR. [2d Ed. of a child caught and fatally injured by piles dragged through the streets by an independent contractor to be used in erecting a build- ing;"* from liability to a passer-by for injury caused by the negligence of a building contractor in allowing brick and mortar to fall from the wall."" § 626. In Case of Railway Contracts.^ — This rule has generally been applied so as to exempt railway companies from liability for wrongs done by contractors employed by them in the construction and repair of their roads.*" The rule is the same, although the eon- tract is by parol.^^ But, as hereafter seen, the rule does not extend so far as to excuse such a company in failing to perform a statutory obligation;*^ nor can it devolve the exercise of its franchises upon a contractor so as to exonerate itself;*" and the application of the rule to railway companies has been denied in other cases.** A railroad company owning a road which is under the exclusive control and management of another company is not liable for personal injuries resulting from the negligence of the employes of the latter company.*' Where a mine-owner furnished a spur track connecting with an adja- cent railway track to haul coal from its mine, and the railway com- pany, in hauling such coal, used its own cars and operated them by ligence of the bricklayers, mortar, bricks, and debris were allowed to fall upon his house and premises and rendered them uninhabitable. The court held that the following charge by the trial court was cor- rect: "Did that drop down by the carelessness of the workmen, or was it something necessarily involved in the building of the wall at that place? Just so far as it was from the carelessness of the workmen, the defendant is not liable for that; but if it was something necessarily in- volved in the building of the wall, then, * * * the defendant is liable to the plaintiff so far as it is actionable." ^Doran v. Flood, 47 Fed. Rep. 543. "Pye V. Faxon, 156 Mass. 471; s. c. 31 N. B. Rep. 640. Other cases in which the owner of a building was held not liable for mortal inju- ries inflicted through the alleged negligence of an independent con- tractor: Thornton v. Lennon, 29 App. Div. 628; s. c. 51 N. Y. Supp. 433; Neumeister v. Eggers, 29 App. Div. 385; s. c. 51 N. Y. Supp. 481. a This section is cited in §§ 669, 671. " Clark V. Hannibal &c. R. Co., 36 Mo. 202; Meyer v. Midland R. Co., 2 Neb. 319; Central R. Co. v. Grant, 46 Ga. 417; West v. St. Louis &c. R. Co., 63 111. 545; Callahan v. Burling- ton &c. R. Co., 23 Iowa 562; Kansas &c. R. Co. V. Fitzsimmons, 18 Kan. 34; Tibbetts v. Knox &c. R. Co., 62 Me. 437; Eaton v. European &c. R. Co., 59 Me. 520; Reedie v. London &c. R. Co., 4 Exch. 244; Steel v. Southeastern R. Co., 16 C. B. 550; Pawlet V. Rutland &c. R. Co., 28 Vt. 297; Schular v. Hudson River R. Co., 38 Barb. (N. Y.) 653; Hunt v. Pennsylvania R. Co., 51 Pa. St. 475; Clark V. "Vermont &c. R. Co., 28 Vt. 103; McCafferty v. Spuyten Duyvil &c. R. Co., 61 N. Y. 178. Contra. Stone V. Cheshire R. Co., 19 N. H. 427; Bdmundson v. Pittsburgh &c. R. Co., Ill Pa. St. 316. " Steel V. Southeastern R. Co., 16 C. B. 550; Earl v. Beadleston, 10 Jones & Sp. (N. Y.) 294. *" Post, §§ 667, 668. " Post, § 669. "Post, § 672. *= Harper v. Newport &c. R. Co., 12 Ky. L. Rep. 333; s. c. 14 S. W. Rep. 346. 575 1 Thomp. Neg.J independent contractors. means of its own servants, it was held that the mine-owner was not liable to one of the servants of the railway company for an injury while so operating the cars, growing out of the manner of operating them, for which the mine-owner was not directly responsible. The railway company stood toward the mine-owner in the relation of an independent contractor; that is to say, in the relation of a carrier toward its shipper.*^ § 627. Further lUustratioiis in the Case of Railway Contracts. — The fact that it is stipulated in such a contract that the work is to be subject to the approval of the chief engineer of the railway company does not establish the relation of master and servant between the company and the contractor.*^ A subcontractor with whom a rail- way construction company contracts for the construction of a portion of the road, as far from a given point as the chief engineer of the construction company may determine, the subcontractor to be fur- nished by the construction company with a locomotive and train and the necessary persons to operate the same, has been held an independ- ent contractor, for whose negligence in the management of the train the construction company is not liable.*' An agent of a transfer company permitted by a railroad company to check baggage on its trains, is not an employe of the railroad company.*® A lessee or licensee of the exclusive privilege of entering railroad cars or upon the right of way to sell or supply lunclies, is not a servant or agent of the corporation, so as to render it liable for an assault and battery committed by such lessee or licensee upon a competitor, who seeks law- fully, on his own premises, to obtain the patronage of passengers. '"' On the other hand, where A. contracted with a railroad company to complete an abandoned construction job, for which he was to be paid the cost of his labor and materials with ten per cent, additional, — ^it was held that this did not make A. the servant of the company so as to make the company liable for his trespass in taking timber from the land of a third party.°^ On the other hand, in a case where the con- tract specified that all damages from blasting should be paid by the contractor, and that in case any damages should occur to the premises of any land-owner through the willfullness or carelessness of the con- tractor or his employes, and remain for thirty days unsettled by the " Coal Run Coal Co. v. Strawn, 15 14 Ky. L. Rep. 327 ; s. c. 20 S. "W. 111. App. 347. Rep. 263 (not to be off. rep.). "Alabama &c. R. Co. v. Martin, °°Fluker v. Georgia R. &c. Co., 81 100 Ala. 511; s. c. 14 South. Rep. Ga. 461; s. c. 2 L. R. A. 42; 9 S. E. 401. Rep. 529. *» Powell V. Virginia Constr. Co., " New Orleans &c. R. Co. v. Reese, 88 Tenn. 692; s. c. 13 S. W. Rep. 691. 61 Miss. 581. Compare post, § 672. "Mefford v. Louisville &c. R. Co., 576 NON-LIABILITY OF PROPRIETOR. [2d Ed, contractor, the company should have full right to retain in its hands, out of moneys that might be due the contractor, such sums as the chief engineer and committee of construction might think sufficient to pay said damages, the company was nevertheless held not liable to third persons for injuries inflicted by the contractor in blasting.'^ § 628. Other Eailway Illustrations. — A railroad company contract- ing for the moving of its cars by horse-power over its own track, from one of its depots to the various consignees, is liable for the negligence of the contractor, — the reason being that the company could not re- lieve itself from the liabilities imposed upon it by its charter, by adopting any particular kind of power.°^ Laborers employed and paid directly by a railroad company for the grading of its road-bed under the direction of the company's chief engineer or foreman, the work being done in sections, their pay being by the cubic yard and depending upon the work being done according to directions, and they being subject to discharge when it is delayed or improperly done, are not independent contractors, but are servants of the company, and it is liable for damage to the property of third persons from a fire negli- gently started by them while engaged in the company's work.°* In the following cases the person employed was an independent con- tractor, and not a servant, and the railroad company was not liable for his tortious acts : — Where the company employed a man to furnish and superintend a portable engine to pump water out of the way, so as to admit of the prosecution of the work, and neither the company nor its employes had the right to interfere in the manner of running the engine or to give directions to its owner ;°' where a person con- tracted with a railroad company to do the grading for a section of its road, the entire work to be done by servants and laborers employed by himself, but subject to the approval of the company's chief engineer, and under the direction of its assistant engineer.^* '- Tibbetts v. Knox &c. R. Co., 62 its line of road, the work to be done Me. 437. subject to the approval of the chief •"Philadelphia &c. R. Co. v. Hahn engineer of the railroad company: (Pa.), 12 Atl. Rep. 479; 22 W. N. Alabama Midland R. Co. v. Martin, C. 32 (no off. rep.). 100 Ala. 511; s. c. 14 South. Rep. '* St. Johns &c. R. Co. v. Shalley, 401. The same was held of a con- 33 Fla. 397; s. c. 14 South. Rep. 890. tract with a railroad company to do °° Wabash &c. R. Co. v. Farver, 111 the mason work of a roundhouse, Ind. 195; s. c. 9 West. Rep. 621; 12 the contractor to build his own scaf- N. B. Rep. 296. folding and the railroad company to "° Rogers v. Florence R. Co., 31 S. furnish the materials, where the C. 378; s. c. 9 S. E. Rep. 1059; 39 master mechanic of the company ar- Am. & Eng. R. Cas. 348. The same ranged with the contractor that the has been held of the subcontractor company should build the scaffold of an improvement company, which for the carpenters, and that, after company has contracted with a rail- they were done using it, the con- road company to build and equip tractor might use it if he wished, VOL. 1 THOMP. NEG. — 37 577 1 Thonip. Neg.] independent contractors. §629. Working by the Day or by the Job.— In determining whether the relation is that of master and servant or that of proprietor and independent contractor, the courts have sometimes taken into con- sideration the manner of payment, — whether payment was to be made by the day, week, month, &c., with a reservation of the power to dis- charge, or whether there was to be a payment by the piece or by the entire job.^'' But the mode of payment is not a decisive test by which to determine this question. The test lies in the question whether the contract reserves to the proprietor the power of control over the employ e.°^ That the mere fact that the work being performed by an employe at the time he was injiired was done by the piece or job — as, by payment of a stated price for each car when loaded — does not deprive him of the character of an employe, where he was a mere servant carrying out the employer's will and instructions.^' On the but on his own responsibility as to its safety for his work; and, while the contractor was so using it, it fell, hurting one of his employes, — with the conclusion that the railroad company was not liable for the in- jury: Larock v. Ogdensburg &c. R. Co., 26 Hun (N. Y.) 382. That a person who built a bridge on the land of a railroad company for the use of the company in transporting baggage from its station to his hotel and to another railroad, was not lia- ble for a personal injury caused by the bridge getting out of repair, — see Watson v. Oxanna Land Co., 92 Ala. 320; s. c. 8 South. Rep. 770. That the word "hireling" under a statute of Arkansas (Mansf. Dig., § 1958), providing that if any "hire- ling" should willfully set on fire any woods, &c., so as to occasion damage to any other person, with the con- sent or by the command of his em- ployer, such employer shall be liable, — does not refer to indepen- dent contractors with railroad com- panies, but to servants: St. Louis &c. R. Co. V. Yonley, 53 Ark. 503; s. c. 13 S. W. Rep. 333. "' See, for example, Schular v. Hudson River R. Co., 38 Barb. (N. Y.) 653. »» Morgan v. Smith, 159 Mass. 570; s. c. 35 N. B. Rep. 101; Harris v. Mc- Namara, 97 Ala. 181; s. c. 12 South. Rep. 103; Waters v. Pioneer Fuel Co., 52 Minn. 474; s. c. 55 N. W. Rep. 52; Geer v. Darrow, 61 Conn. 220; s. c. 23 Atl. Rep. 1087. =' Tennessee Coal &c. Co. v. Hayes, 97 Ala. 201; s. c. 12 South. Rep, 98, 578 A brutal decision, ignoring this prin- ciple and every other settled and well recognized principle with ref- erence to the subject under consid- eration, was rendered by the Su- preme Court of Missouri, in the case where a negro had been em- ployed to dig sand upon the prem- ises of a corporation and haul it away at fifty cents a load. The sandpit was in a populous neighbor- hood in a city. It was, in its nature, what the books frequently call, speaking with reference to injuries to children, an "attractive nuis- ance." It was unguarded and un- fenced. The sand-hauler excavated the pit so negligently that while some children of the neighborhood were digging in the sand, it caved in upon them and killed them. It was held that the negro was an in- dependent contractor, and that on this ground there could be no recov- ery of damages: Pink v. Missouri Furnace Co., 82 Mo. 276; reversing s. c. 10 Mo. App. 61. The decision ignored the principle already con- sidered that when a land-owner un- dertakes to do work on his land which from its nature is likely to lead to mischief to others, unless care is exercised in the doing of it, the duty of exercising this care is an absolute or primary duty which the law casts upon him, and which he can not devolve upon an inde- pendent contractor so as to escape responsibility for failing to perform it: Ante, §§ 652, 665. This decis- ion is directly opposed to a previous decision of the same court, in a NON-LIABILITY OF PKOPEIETOR. [2d Ed. other hand, an ore digger who employs and pays his own assistants, under an arrangement by which the details of their work are subject to his own exclusive control and management, and who is paid by the mine-owner a specified sum per car for the ore which he mines, is not a servant of the mine-owner, but is the servant of an independent con- tractor."" So, a railway company was held to be exempt from liabil- ity for the negligence of one who had engaged to do a piece of filling at twenty cents per yard, although the company furnished track, trestle, cars, mules, and drivers."^ While the manner in which pay- ment is made is not a decisive test, yet it is undoubtedly an eviden- tiary fact to be taken into consideration for what it is worth in con- nection with the other circumstances to determine what the contract really was; and, in general, it may be said that a person who works for wages, whose labor is directed and controlled by his employer, either in person or by an intermediate agent, is a servant, and the master must answer for the wrongs done by him in the course of his employment; whereas a person who, for a stated sum, engages to perform a stated piece of labor in which he is skilled, the proprietor of the work leaving him to his own methods, is an independent con- tractor; the proprietor does not stand in the relation of superior to him, and is not answerable for the wrongs done by him or his servants in the prosecution of the work, unless special circumstances exist making him so."^ § 630. Cases where the Person Working by the Job was held to be a Servant. — Where the lessee of a house employed a carpenter for a case where a railway corporation under consideration: Speed v. At- made a contract with A., whereby lantic &c. R. Co., 71 Mo. 303. he was to have entire charge, in the °° Harris v. McNamara, 97 Ala. defendant's freight yard, of the 181; s. c. 12 South. Rep. 103. work of making up trains, &c., and °^ Central R. Co. v. Grant, 46 Ga. was to be paid a certain sum per ton 417. This being the settled rule, the of freight for each car hauled from opinion of Chief Justice Shaw, in the yard. The superintendent of Stone v. Codman, 15 Pick. (Mass.) the railway company was author- 297, can not be supported. It was ized to see that the work was done there held that where a proprietor in a satisfactory manner, and if it employs a mechanic to make a drain were not, the railway company had for him on his own land, the me- the right to terminate the contract chanic procuring the necessary ma- at twenty-four hours' notice. The terials, hiring laborers and charg- men employed in the yard were paid ing a compensation for his services by A., the contractor. Through the and disbursements, the mechanic is negligence of the trainmen, em- deemed to be the servant of the pro- ployed by the contractor, the plaint- prietor so as to make the latter iff was injured; and he brought an liable to a third person damaged by action against the company, and was reason of the fact that the mechanic allowed to recover on the ground prosecuted the work without suffi- that the contractor was a servant cient care and skill, of the company, and not an inde- "^ Morgan v. Bowman, 22 Mo. 538. pendent contractor within the rule 579 1 Thomp. Neg.] independent contractors. quantum meruit to repair his awning, and in doing it he negligently injured a traveller on the sidewalk, it was held that the lessee was answerable for the damages, on the ground that it was the act of his servant."^ So, where the occupier of land employed a common laborer to clean out a drain which passed under the highway, and the laborer did the work and charged and received five shillings for it, but he restored the soil in the highway so imperfectly that -the horse of a traveller was injured in passing over it, the relation of master and servant was held to exist, and the employer was adjudged to pay the damages.'* And even where a proprietor employed another to fill his ice-house with ice, agreeing to pay so much per cord, and obtained a license from the city to encumber the street for that purpose, it was held that he must pay damages to a traveller injured by driving upon some fragments of blocks of ice which the contractor had left in the street, covered with snow. The decision is put upon the ground taken by the same court in a previous case,®° that there is no such repug- nance between the relation of proprietor and contractor and principal and agent that they can not exist together between the same persons with reference to the same undertaking; that, under the contract in question, the proprietor did not appear to have relinquished control of the premises, or to have waived the right of directing the mode of doing the work, and that he therefore stood in the relation of superior to the contractor. ®° § 631. Cases where One Working by the Day was held to be an Independent Contractor. — On the other hand, the payment of an em- ploye by the day, though an important consideration, is not in itself decisive of the relation of master and servant.*" Thus, where C. had contracted with a town to widen a highway by removing the rocks from a ledge therein, for a certain sum of money and the stone, and after- wards contracted with A. to build a dam for him with the stone, for which he was to receive a certain price per day while at work upon the dam and in blasting the rocks, — A. furnishing the powder for the blasting, and superintending the building of the dam, but having no "' Brackett v. Lubke, 4 Allen was, therefore, the defendant's serv- (Mass.) 138. ant; and if so, cadit guaestio." "Sadler v. Henlock, 4 El. & Bl, ""Detroit v. Corey, 9 Mich. 165. 570. Lord Campbell, C. J., said: "" Darmstaetter v. Moynahan, 27 "What difference can it make that Mich. 188. A similar conclusion was Pearson was an independent laborer, reached on analogous facts in Bur- to be paid by the job? The defend- gess v. Gray, 1 C. B. 578; s. c. 14 L. ant might have said, 'Fill up the J. (C. P.) 184. These three cases drain, but not as you are doing it, are somewhat out of harmony with lest when a horse goes over the the current of authority, place he may be injured.' Pearson " Corbin v. American Mills, 27 Conn. 274. 580 NON-LIABILITY OF PROPEIETOK. [2d Ed. control over the blasting, — and, in blasting, a rock was thrown upon the building of D., causing an injury for which C. was subjected to damages, it was held that the relation of master and servant did not exist between A. and C, and that A. was not liable to indemnify C. for the damages which he had been compelled to pay.°^ § 632. Other Illustrative Cases. — A., having a license from a mu- nicipal corporation to lay a water pipe in a street, contracted with B. for a round sum to dig the ditch and lay the pipe, — A. to furnish the pipe and boxing, but to have no further connection with the work. B. negligently left the ditch unprotected, in consequence of which a traveller fell into it and was injured. It was held that A. was not liable to the person injured, because B. was an independent con- tractor."" The decision ignored the principle already considered'"' and applied in many similar cases, that while the work is inherently dan- gerous, or likely to lead to mischief unless guarded, there is an abso- lute duty on the part of the proprietor to exercise reasonable care to the end of preventing such mischief. It has been held, that a person em- ployed by a sewing machine company, under a written contract to sell its sewing machines and to be paid for his services by commissions on his sales and collections, — the company furnishing a wagon and he furnishing a horse and harness, to be used exclusively for can- vassing for such sales and in the general prosecution of the business, and he agreeing to give his whole time and best energies to the busi- ness, and to employ himself under the direction of the company and under such rules and restrictions as it or its manager shall prescribe, — is a servant of the company, so that the company is responsible to third persons who are injured by his negligence in the course of his employment.''^ A., the proprietor of a pinery, contracted with B. that B. should cut all the logs A. had on certain land, and deliver them to A. at a place named, A. to have no part in the running of the logs until they reached the place named, and not to render B. any assist- ance in the prosecution of the work, pecuniary or otherwise. B. was not the servant of A., and A. was not liable for B.'s negligence in obstructing the navigation.''^ So, a contract to drive all the logs which A. has on the ice to a certain point, as soon as the ice breaks up, at five cents a log, does not make the owner of the logs liable for a bridge carried away by the negligence of the contractor.''^ A. em- ployed B. to construct a drain in a public highway; B. employed C. to «' Corbin v. American Mills, 27 " Singer Man. Co. v. Rahn, 132 Conn. 274. U. S. 518; s. c. 33 L. ed. 440; 10 Sup. °° Smith V. Simmons, 103 Pa. St. Ct. Rep. 175. 32. " Moore v. Sanborne, 2 Mich. 519. '°An«e, § 652. " Pierrepont v. Loveless, 72 N. Y. 211. 581 1 Thomp. Neg.J independent contractors. fill in the earth over the brickwork, and to carry away the surplus ; C, in performing his work, left the earth raised so much above the level of the road that D., driving in the dark, was thereby upset and injured. A. was held not responsible for the negligence of C* This rule also exempts the owner of a vessel from liability for damages occasioned by the negligence of stevedores employed for a gross sum by the con- signees of the charterers in unloading the cargo.^^ A town con- tracted with a person to clear off a strip of land surrounding a pond which it had purchased for the purpose of supplying its inhabitants with water. In so doing, he negligently set fire to the timber and fences of an adjacent owner. It was held that the town was not liable.^" And so it has been held in Iowa, that if A. enters into a contract to protect B."s farm from fire, and, in carrying it out, sets fire to the field of C, A., and not B., must pay damages to C.''^ A well-borer contracted with a school district to bore a well in the school- house yard. He left his machine unguarded, whereby one of the school-children was injured. The school-district was not liable. ''' § 633. Surgeons Employed by Steamship Companies, Railway Companies, &c. — A steamship company engaging a rea.sonably com- petent and skillfull surgeon, although upon the payment of a salary, to attend upon its passengers during its voyages, whether in pursuance of a statute or not, and who provided such surgeon with reasonable medical stores and surgical appliances,— 4S not answerable in dam- ages to a passenger for his malpractice ;''° and the rule is the same in cases of a railroad company furnishing a hospital and a competent surgeon to attend upon its wounded employes.^" If such a company exercise reasonable diligence in the selection of surgeons, nurses, &c., who are of good repute in their profession they are not answerable on the footing of negligence for the result of the treatment which the professional persons so employed by them may bestow on the em- ploye. ^^ § 634. Owner and Charterer of SMp.^One who charters a ship and furnishes his own crew under a contract by which he assumes absolute " Peachey v. Rowland, 13 C. B. " Wood v. Independent School Dis- 182; s. c. 17 Jur. 764; 22 L. J. (C. P.) trict, 44 Iowa 27. 81. " Laubheim v. Royal Netherland "Linton v. Smith, 8 Gray (Mass.) Steamship Co., 107 N. Y. 228; s. c. 147. Compare Innocent v. Peto, 4 13 N. E. Rep. 781. Fost. & Fin. 8; Woodward V. Peto, 3 ^ Ante, § 525, et seq. Compare Fost. & Fin. 889. ante, §§ 66, 202, 251. ™ Wright v. Holbrook, 52 N. H. " Pittsburgh &c. R. Co. v. Sullivan, 120. 141 Ind. 83; s. c. 50 Am. St. Rep. "Kellogg V. Payne, 21 Iowa 575. 313, and note; Quinn v. Railroad See Wright v. Holbrook, 52 N. H. Co., 74 Tenn. 713; s. c. 45 Am. St. 120. Rep. 767. 582 NON-LIABILITY OF PROPRIETOR. [2d Ed. control over it, is an. independent contractor with reference to the owner, and not his agent or servant during the continuance of the charter-party.*^ So, if the charterer of a canal boat employs a towing company or a tug to tow the boat, the towing company will stand toward the charterer in the relation of an independent con- tractor, and not in the relation of agent or servant ; and the charterer will not be liable to answer in damages for the negligence of the servants of the towing company.*'' So, persons operating a line of steamships ostensibly as agents of the company by which they are owned, but in fact as general partners of the firm by which the line is operated, are independent contractors and principals, and not merely servants of the company, and are personally liable in replevin for their refusal to deliver goods shipped on the line on demand by one entitled to them.** § 635. Stevedores Loading and TJnloading Vessels.^ — The business of loading and even unloading sea-going vessels requires a special skill and experience ; and undertakers of that kind of work are accordingly, as a general rule, licensed, as in the case of pilots. A stevedore, furnishing his own appliances and his own servants, is, in respect of the owner or charterer of the vessel, an independent contractor, and not a servant ; and, clearly, the owner or charterer is not liable for the negligence of such stevedore or of his servants, in the absence of special circumstances changing the rule.*° § 636. liability of Ship-owner or Charterer to Servant of Steve- dore. — But, although the relation of master and servant may not exist between the ship-owner or charterer and the servants of the stevedore, yet this does not negative the implication of law that such owner or charterer, inviting the servants of the stevedore to come upon his ship and to do work thereon with appliances furnished by him, is bound to see that the vessel and the appliances are reasonably safe for the purposes intended. He owes this duty to the master-stevedore, and "^ McDowell V. Homer Ramsdell to unload vessels coming there, were Transp. Co., 78 Hun (N. Y.) 228; held to sustain toward the railroad s. c. 60 N. if. St. Rep. 10; 28 N. Y. company the relation of servants Supp. 821. and not that of independent con- *" McLaughlin v. New York Light- tractors: Daley v. Boston &c. R. Co., erage & T. Co., 7 Misc. (N. Y.) 119; 147 Mass. 101; s. c. 6 N. Eng. Rep. s. c. 57 N. Y. St. Rep. 543; 27 N. Y. 349; 16 N. E. Rep. 690. Stevedore Supp. 248. agreeing to load a vessel immediate- " Tanco v. Booth, 39 N. Y. St. Rep. ly, liable for the failure of others 198; s. c. 15 N. Y. Supp. 110. on whom he depends to enable him a This section is cited in § 594. to execute his contract: Pregenzerv. *° Circumstances under which a Burleigh, 6 Misc. (N. Y.) 140; s. c. gang of workmen employed by a 55 N. Y. St. Rep. 694; 26 N. Y. Supp. railroad company, at work on docks 35. 583 1 Thomp. Neg.j independent contractors. he owes a commensurate duty to the servants of such master-steve- dore.*^ On the other hand, although the relation of master and servant does not exist between the master-stevedore and members of the crew, yet there is an implied obligation resting upon the master- stevedore to keep the machinery used by him in a reasonably safe and secure condition, and to operate the same carefully so as not to injure members of the crew engaged about the vessel. When, therefore, a member of the crew was injured by the falling of a block, which the master-stevedore had negligently fastened to a beam, it was held that the sailor had an action against him for damages.*' The governing principle, as stated by Wallace, J., is that the implied obligation on the part of one who is to provide machinery or means by which a given service is to be performed by another, is to use proper care and diligence to see that such instrumentalities are safe and suitable for the purposes intended; * * * j^jj^ ^f j^g knows, or by the use of due care might have known, that they were insufficient, he fails in his duty.** But if the master of the vessel retains control of the work, in vdiole or in part, and through his interference or orders an injury happens to a servant of the stevedore or to a third person, the ship- owner will be liable.*^ A dock-owner, letting to a stevedore, an engine and an engineer to run it, is liable for an injury to an employe of the stevedore through the negligence of the engineer. °" § 637. Mine-owner and Master Ore-digger.^ — A master ore-digger who employs and pays his own assistants, to whose exclusive control and management are committed the work of mining ore, under a con- tract with the mine-owner, and who is paid by the mine-owner a speci- fied sum per car-load for the ore which he gets out, is not a servant of the mine-owner, although the mine-owner has a right, under a custom, to object to the miners whom such master ore-digger assumes to employ."^ But this does not at all negative the conclusion that where, under, an arrangement with the master ore-digger, the mine- owner furnishes the appliances which are to be used by the servants of the master ore-digger, the mine-owner will stand under the same duty toward them that he would stand under if they were his own servants. The doctrine is said to be that the "relation of master and servant does not cease to exist so long as the master reserves any con- " The Rheola, 19 Fed. Rep. 926. 121 N. Y. 22; s. c. 24 N. E. Rep. 192; " Minor v. Clark, 28 N. Y. St. Rep. 30 N. Y. St. Rep. 724. 184; 8 N. Y. Supp. 616. ""Coyle v. Pierrepont, 37 Hun (N. ''The Rheola, 19 Fed. Rep. 926, Y.) 379; reversing s. c. 33 Hun (N. 927. Y.) 311. ^ Morrell v. Rheinfrank, 24 Fed. a This section is cited in § 594. Rep. 94; Union Steamship Co. v. "'Harris v. McNamara, 97 Ala. Claridge (P. C.) £1894], A. C. 185; 181; s. c. 12 South. Rep. 103. Kilroy v. Delaware &c. Canal Co., 584 NON-LIABILITY OF PKOPEIETOR. [2d Ed. trol, or right of control, over the method and manner of doing the work, or the agencies hy which it is to be effected."^^ § 638. Licensed Carriers, Drovers, WarehoTiseuieii, Watermen, &e.^ — One who, under a public license, exercises a certain employ- ment on behalf of any member of the public who may hire him, — such as a licensed public carman,'^ drover,"* pilot,*^ or drayman,"' does not stand in the relation of servant to one who may hire him to do a particular job, such as he is licensed to do, but is deemed an independent contractor within the meaning of subdivision III. But this rule has its limitations. The fact that a man is obliged by law to select servants to carry on a particular employment, from a par- ticular class of men skilled in such employment, and licensed to fol- low it, does not exclude the possibility of relation of master and servant existing between them. Thus, an English statute,"^ and the by-laws ordained in pursuance thereof, enacted that no one besides freemen, or apprentices to freemen or to widows of freemen, of the Watermen and Lightermen's Company (with certain exceptions, not material), might navigate craft on the River Thames, within certain limits, under a penalty; but any person might keep and use craft for carrjdng his own goods by his servants, ieing such freemen and ap- prentices; and that upon every barge there must be at least one able and skillful man thus qualified to navigate. There were about six thousand freemen and apprentices of the company having this exclu- sive privilege. The owner of a barge hired two persons thus qualified to navigate it, within the limits of the statute, and by their negligence another vessel was injured. It was held that the navigators so em- ployed were the servants of the owner of the barge, and that he must pay the damages."^ The case was distinguished from cases under the Pilot Act, already cited; for there the master of the vessel was obliged to take the first pilot who offered himself.®" It was compared to the state of things existing under a former English statute,^"" prohibiting (with certain exceptions) persons from exercising callings who had not been apprentices thereto. So, a warehouseman in Liver- °-Fell V. Rich Hill Coal Min. Co., by the 6 Geo. IV., c. 125, § 55; and 23 Mo. App. 216; citing to the doc- see the 52 Geo. III., c. 39, § 30. trine in quotation marks, Speed v. "^ De Forrest v. Wright, 2 Mich. Atlantic &c. R. Co., 71 Mo. 303, 308. 368. See Dalton v. Bachelor, 1 a This section is cited in §§ 594, Fost. & Fin. 15. 864. »' 7 & 8 Geo. IV., c. 75. "McMullen v. Hoyt, 2 Daly (N. "'Martin v. Temperley, 4 Q. B. Y.) 271. 295. This case can not be recon- " Milligan v. Wedge, 12 Ad. & El. ciled with Milligan v. Wedge, supra. 737 ; s. c. 4 Per. & Dav. 714. ™ As to compulsory pilotage, see " The Maria, 1 W. Rob. 95, 106, § 15. 107, per Dr. Lushington. So enacted '" 5 Eliz., c. 4, § 31. See 1 Bla. Comm. 427. 585 1 Thomp. Neg.] independent contractors. pool employed a master-porter to remove a barrel from his warehouse. The master-porter employed his own men and tackle. Through the negligence of one of his men, the tackle failed, and the barrel fell on the plaintiff. It was held that the warehouseman was liable, on the ground that the master-porter and his men were, for the time being, his servants."^ It follows, therefore, that the mere fact that a person exercises generally an independent employment, in which he is skilled, does not exclude the conclusion that he may be the servant of one who hires him to do a particular job. The distinction upon which the cases turn was thus summed up by Bigelow, C. J. : "If the person em- ployed to do the work carries on an independent employment, and acts in pursuance of a contract with his employer, by which he has agreed to do the work on certain specified terms, in a particular man- ner, and for a stipulated price, then the employer is not liable. The relation of master and servant does not subsist between the parties, but only that of contractor and contractee."^"^ § 639. Unlicensed Carriers, Drovers, &C.'' — It seems clear that the question whether a person following the occupation of a carrier is doing so under a public license, can not, in all cases, determine the question whether he is an independent contractor or the mere agent or servant of the person employing him in the particular instance, though it may be an important evidentiary circumstance. For ex- ample, the status of an independent contractor has been ascribed to the owner of a team engaged in hauling goods for a manufacturing company under an agreed price per week and a price proportionately less if both teams should be employed less than a full week, where the owner had the exclusive control, care, and management of his team, and the company merely directed what was to be hauled and its destination; but left all the details as to the route, the speed, &c., to the owner of the teams and his drivers. ^"^ § 640. Question is for the Court, not for the Jury. — What consti- tutes an independent employment, so as to make the person engaged "' Randleson v. Murray, 8 Ad. & ing a difference, In this respect, be- E. 109; s. c. 3 Nev. & P. 237; 2 Jur. tween the duties of owners of fixed, 324. In Murphy v. Caralli, 3 Hurl, and owners of movable property. & Colt. 460, this case was declared This doctrine is now almost univer- by Pollock, C. B., to be contrary to sally denied. See Stevens v. Arm- the current of authority. It belongs strong, 6 N. Y. 435. to the few English cases which, fol- ""^ Brackett v. Lubke, 4 Allen lowing the overruled case of Bush V. (Mass.) 138. Steinman, 1 Bos. & Pul. 404, hold a a This section is cited in § 594. proprietor responsible for the acts "' Wadsworth Howland Co. v. Pos- of independent contractors while ter, 50 111. App. 513; s. c. 7 Nat. working about his premises; mak- Corp. Rep. 146. 586 NON-LIABILITY OF PKOPEIETOR. [2d Ed. in the employment an independent contractor within the meaning of the rule under consideration, is a question of law for the court, and not a question of fact for the jury; but, as in other eases, subject to the rule that the jury are to determine the facts upon which the de- cision of the question of law is to be made.^"* § 641. Proprietor Not Liable for an Injury upon One Contractor by Another. — If two independent contractors are engaged for one principal upon the same job, — as where one does the mason's work and the other the carpenter's work, — and, in consequence of the negligence of the one, the work of the other is injured and he subjected to dam- age, he can not recover of the proprietor, unless the latter was at fault in some respect in the selection of the other contractor.^ "^ "* Emmerson v. Fay, 94 Va. 60; "'Treadwell v. New York, 1 Daly s. c. 26 S. E. Rep. 386; 2 Va. Law (N. Y.) 123. Reg. 834. 587 1 Thomp. Neg.J independent contractors. CHAPTER XX. CASES WHERE THE PEOPEIETOE REMAINS LIABLE. Section 645. The modern doctrine stated. 646. Cases where the proprietor stands liable under the mod- ern doctrine. 647. Proprietor continues liable for his own negligence. 648. Proprietor liable where the work contracted for is wrong- ful per se. 649. "What work deemed wrongful per se. 650. Proprietor liable where the in- jury proceeds from the na- ture of the work itself. 651. Proprietor can not relieve him- self from liability by an agreement with the contract- or. 652. Where the work is in its na- ture dangerous, and likely to lead to mischief. 653. As in case of dangerous exca- vations in streets. 654. Or failing to support adjacent land in building. 655. Other illustrations. 656. Responsibility of proprietor for fires set on his premises by contractor. 657. When proprietor under the duty of supervising the work. 658. Proprietor responsible where he interferes with the work, etc. 659. Proprietor responsible where he retains or assumes gen- eral supervision and control of the work. 660. What supervision by the pro- prietor will not render the proprietor liable. 588 Section 661. Proprietor liable where he re- serves full control as to the results and methods. 662. Application of this doctrine to building contracts where con- trol is reserved to architects and superintendents. 663. Application of this doctrine to municipal corporations. 664. Proprietor liable if he accepts defective work from con- tractor. 665. Proprietor remains liable who delegates an absolute duty to an independent contractor. 666. Such as the protection of the street or sidewalk. 667. Proprietor liable who delegates to a contractor a duty im- posed on him by statute. 668. Further of this doctrine. 669. Railway companies remain lia- ble if they devolve the execu- tion of their franchises upon independent contractors. 670. Further of this subject. 671. For what acts of independent contractors railway com- panies not liable. 672. Liability of railway companies for the trepasses of their con- tractors. 673. Proprietor may become liable by express contract. 674. Proprietor liable for acts In violation of restrictions in public licenses for protection of third persons. CASES WHERE PROPllIETOK LIABLE. [2d Ed. Section Section 675. Liability in respect of prem- 678. Liability of proprietor for tres- ises upon which the public passes of independent con- are invited upon the payment tractor, of a fee. 679. Liability of the proprietor for 676. Liability of landlord to tenant injuries to contractor. for negligence of contractor 680. "Whether proprietors liable for in repairing building. injuries to servants of con- 677. Effect of negligence in select- tractors. ing the contractor. § 645. The Modern Doctrine Stated.^ — The modern doctrine seems to be that if one engages with a contractor to do an act which may be done in a lawful manner, and the contractor in doing it unneces- sarily commits a nuisance, whereby injury results to a third person, the employer will not be liable.^ In other words, if the act or neglect ■which produces the injury is purely collateral to the work contracted to be done, and entirely the result of the wrongful acts of the con- tractor and his workmen, the proprietor is not liable ; but if the injury directly results from the work which the contractor engaged and was authorized to do, he is equally liable with the contractor.^ § 646. Cases Where the Proprietor Stands Liable under the Mod- ern Doctrine. — As well stated in recent cases in New York, there are but three cases in which the owner of fixed property is responsible for acts done upon it which result in injury to another: first, where the person doing the act stands toward the proprietor in the relation of employe or servant ; second, where the act as authorized by a contract between the proprietor and actor necessarily produced the injury ; and, third, where the injury was occasioned by the omission of some duty imposed on the proprietor.^ In the third category falls the case of a continuing nuisance; for a man must not suffer a nuisance to continue on his premises, to the injury of others, although he was not responsi- ble for its creation.* § 647. Proprietor Continues liable for his Own Negligence. — If the negligence of a proprietor, and not that of the contractor, is the a This section is cited in §§ 1067, (N. Y.) 301; Earl v. Beadleston, 10 1148. Jones & Sp. (N. Y.) 294; Davie v. 'Peachey v. Rowland, 13 C. B. Levy, 39 La. An. 551; s. c. 2 South. 182; s. c. 17 Jur. 764; 22 L. J. (C. Rep. 395. P.) 81. » McCafCerty V. Spuyten Duyvil &c. = Chicago v. Robbins, 2 Black (U. R. Co., 61 N. Y. 178; Ryder v. S.) 428; Robbins v. Chicago, 4 Wall. Thomas, 13 Hun (N. Y.) 296. (U. S.) 679; Water Co. v. Ware, 26 ' Osborn v. Union Ferry Co., 53 N. Wall. (U. S.) 576; Hundhausen v. Y. 629; Burgess v. Gray, 1 C. B. Bond, 36 Wis. 29 ; O'Rourke v. Hart, 578; s. c. 14 L. J. (C. P.) 184; 7 Bosw. (N. Y.) 511; s. c. 9 Bosw. Matheny v. Wolffs, 2 Duv. (Ky.) 137. 589 1 Thomp. Neg.] independent contractors. proximate cause of the injury, then the proprietor will be liable to the person injured. Thus, if the contractor merely engages to do certain work on a building, e. g., the brick-work, under the direction of an agent of the proprietor, e. g., an architect, and the building falls in consequence of a defect in the plan furnished by the architect, the contractor will not be liable to a third person so injured; for this would reverse the rule, and make the inferior liable for the acts of the superior. But in case of a plan so defective that even a person not skilled in architecture would know it to be dangerous, the rule might be different. ° Where the negligence in the erection of a wall abutting against a party-wall, which by reason of insufficient support fell upon plaintiff's building, was not in the workmanship or the materials used by contractors, but in the plans and specifications, the owners of the building are liable.* "The owner can not dictate that his building be constructed of improper materials or upon an unsafe plan, and escape liability for injuries caused thereby, because he made a con- tract with a third person to build it; nor can he, with knowledge of a weakness or defect threatening the strength of the building, set a man at work immediately under it, and shift all responsibility upon the builder."' § 648. Proprietor Liable where the Work Contracted for is Wrongful Per Se.*^ — If the work contracted for by the proprietor of real property is wrongful per se, — that is, if, in the ordinary mode of doing it, it will create a nuisance, or if it involves a trespass^ upon the property of another, — the proprietor will be liable for any injuries which may result from it to a third person, although the work is done by a person exercising an independent employment and employing his own servants.® The principle, briefly stated, is that one who em- ploys another to commit a nuisance or a trespass, must answer for it, although he exercises no control over that other as to the mode em- ployed by him to reach the unlawful results. This liability rests upon the idea that the employer becomes a co-trespasser by reason of tres- passing or participating in the work that is done, and not on the doc- "Daegling v. Gilmore, 49 111. 248; a This section is cited in §§ 667, Peyton v. Richards, 11 La. An. 62; 1067. Horner v. Nicholson, 56 Mo. 220. ° Leber v. Minneapolis &c. R. Co., ° Lancaster v. Connecticut &c. Ins. 29 Minn. 256. Co., 92 Mo. 460; s. c. 10 "West. Rep. "Ellis v. Sheffield Gas Consumers' 409; 5 S. W. Rep. 23. Co., 2 El. & Bl. 766; CufC v. Newark 'Meier v. Morgan, 82 Wis. 289, &c. R. Co., 35 N. J. L. 17, 574; Kel- 294, opinion by Winslow, J. ; s. c. 52 logg v. Payne, 21 Iowa 578 ; Robbins N. W. Rep. 174; citing Whitney v. v. Chicago, 4 Wall. (U. S.) 657; Chi- ClifEord, 46 Wis. 138; Trainor v. cago v. Robbins, 2 Black (U. S.) Philadelphia &c. R. Co., 137 Pa. St. 418; Water Co. v. Ware, 16 Wall. 148. (U. S.) 566, 576, per Clifford, J.; 590 CASES WHERE PROPRIETOR LIABLE. [2d Ed, trine of respondeat superior.^" In New York, the rule has been laid down that persons who, without special authority, make or continue a covered excavation in a public street or highway, for a private purpose, should be responsible for all injuries to individuals resulting from the street or highway being thereby less safe for its appropriate use, there being no negligence by the parties injured. ^^ Applying this principle, one who had contracted to build a block of houses, and who had let out the work of excavating, blasting, etc., to a subcontractor, was responsi- ble for an injury to a third person, occasioned by falling into an exca- vation made in the sidewalk by the subcontractor or his servants, not- withstanding the fact that the subcontractor had stipulated to guard against accidents by proper precautions, and to make good all dam- ages. The governing principle was that the work contracted for was wrongful per se, the consent of the public authorities not having first been obtained, and the principal contractor hence became a quasi- insurer of the public against the injurious consequences of it.^^ This doctrine should not be applied in those jurisdictions where the neces- sary excavating in building is not deemed wrongful per se^^ § 649. What Work Deemed Wrongful Per Se.^ — The question what kind of work is unlawful or wrongful per se within the rule which charges the proprietor, would conduct us into an infinite variety of detail. It has been held, with reference to this question, that it is not necessarily a nuisance to operate a portable steam engine, in a careful manner, in close proximity to a public highway; so that if it is operated negligently by an independent contractor, engaged in pumping water out of an excavation for a railroad company, whereby a horse of a traveller is frightened, the company will not be liable.^* § 650. Proprietor Liable where the Injury Proceeds from the Nature of the Work Itself. — It is merely another way of stating the preceding proposition to say that the proprietor is liable, on the prin- ciple of being answerable for his own negligence, where the injury proceeds from the nature of the work itself, and not from the manner in which the independent contractor has executed it. If, for any Hole V. Sittingbourne &c. R. Co., 6 and contractor held liable) ; Davie Hurl. & N. 497; Hundhausen v. v. Levy, 39 La. An. 551; s. c. 2 Bond, 36 Wis. 29; Lockwood v. New South. Rep. 395. York, 2 Hilt. (N. Y.) 66; Keegan "Cole, J., in Kellogg v. Payne, 21 v. Western R. Co., 8 N. Y. 175; Iowa 579. Clark V. Fry, 8 Ohio St. 358. Com- " Congreve v. Smith, 18 N. Y. 79. pare Hill v. New River Co., 9 Best ^- Creed v. Hartman, 29 N. Y. 591. & S. 303; Wabash &c. R. Co. v. Far- ''Post, §§ 1220, 1222. ver. 111 Ind. 195. 198; s. c. 9 West. a This section is cited in § 1067. Rep. 621; 12 N. E. Rep. 296 (rule so "Wabash &c. R. Co. v. Farver, 111 stated, but proprietor exonerated Ind. 195. 591 1 Tliomp. Neg.] independent contractors. reason, the nature of the wort is such that when done in the ordinary mode, it is necessarily or naturally injurious, in a legal sense, to a third person, the proprietor must answer to him in damages for it.^° Thus, where one who had contracted with the water-board of a city to build a sewer was required, by the terms of the contract, to remove the "sheath-piling" and, in consequence of doing so, an adjacent house settled and was injured, the city was held liable for the damages.^" So, if a contract stipulates for the erection of a wall of insufficient thickness, in consequence of which it falls, the proprietor must pay the damages.^' § 651. Proprietor Can Not Relieve Himself from Liability by an Agreement with the Contractor. — The proprietor can not relieve him- self from the liability which the law imposes upon him where the work is wrongful per se by any agreement which he may make with the undertaker of the work.^' So, where there is a public duty rest- ing upon a corporation it can not discharge this duty by any agree- ment which it may make with an undertaker of the work. For ex- ample, a railroad company can not, by a contract with a private per- son to make openings in its fence for private purposes, relieve itself from its duty to the general public to keep the road securely fenced except at private crossings, and its failure to do so renders it liable for damages resulting to all persons except the contracting party. ^^ This principle may be enlarged and generalized by stating that no proprietor can be allowed, in this way, to cast off a!ny of the absolute duties which the law puts upon him by virtue of his ownership of property. § 652. Where the Work is, in its Nature, Dangerous, and Likely to Lead to Mischief,^ — It is but another expression of this principle to say that if, according to previous knowledge and experience, the work which the proprietor engages the contractor to do is inherently dangerous to third persons, and likely to lead to mischiefs however carefully performed, it will be incumbent upon him to foresee such mischief, and to take precautions against it.^° The Supreme Court "Williams v. Fresno Canal &c. Smith, 102 Cal. 220; s. c. 36 Pac. Co., 96 Cal. 14; s. c. 31 Am. St. Rep. Rep. 411. 172; 20 Wash. L. Rep. 614; 30 Pac. "Wabash R. Co. v. Williamson, 3 Rep. 961; Carlson v. Stocking, 91 Ind. App. 190; s. c. 29 N. E. Rep. Wis. 432; 65 N. W. Rep. 58. 455. " Lockwood V. New York, 2 Hilt. a This section is cited in §§ 624, (N. Y.) 66. 629, 632, 666, 667, 671, 686, 689, 771, " Daly, J., in Treadwell v. New 1067, 1148. York, 1 Daly (N. Y.) 128. ""Lord Colonsay, in Daniel v. " Ellis V. Sheffield Gas Consumers' Metropolitan R. Co., L. R. 5 H. L. Co., 2 El. & Bl. 967; Colgrove v. 63; Bower v. Peate, 1 Q. B. Div. 592 CASES WHERE PROPRIETOR LIABLE. [2d Ed. of Ohio have, in an official syllabus, stated the rule to he that one who causes work to be done is liable for the acts of employes of an inde- pendent contractor, where the resulting injury, instead of being col- lateral and flowing from the negligent act of the employe alone, is one that might have been anticipated as a direct or probable conse- quence of the performance of the work if reasonable care was omitted in the course of the performance.^'- Other courts have stated the doc- trine in substantially the same way.^^ A good illustration of ' the principle is found in the rule that, when the owner of premises, which are under his control, employs an independent contractor to do work upon them, which, from its nature, is likely to render the premises dangerous to persons who may come upon them by the invitation of the owner, the owner is not relieved, by reason of the contract, from the obligation of seeing that due care is used to protect such persons. The owner can not continue to hold out the invitation without being bound to exercise due care in keeping the premises reasonably safe for use according to the invitation.^' Another good illustration of the principle is furnished by a case where a gas company contracted for the performance of certain work which required the forcing of explosive gas through pipes not yet thoroughly cemented. The gas leaked and caused an explosion. It was held that the gas company was liable for the resulting damages, notwithstanding the fact that the work was done by a construction company which was an independ- 321; Pickard v. Smith, 10 C. B. (N. Norwalk, 63 Conn. 496, 528; s. c. 28 S.) 470. See Pearson v. Cox, 2 C. AtL Rep. 32. P. Div. 369; Norwalk Gas Light Co. =' Railroad Company v. Morey, 47 V. Norwalk, 63 Conn. 495; s. c. 28 Ohio St. 207; s. c. 24 N. E. Rep. 269; Atl. Rep. 32; Colgrove v. Smith, 102 43 Am. & Eng. RaiL Cas. 97; 7 L. Cal. 220; s. c. 27 L. R. A. 590; 33 R. A. 701; 23 Ohio L. J. 347. Pac. Rep. 115; Chicago Economic ^^ Davie v. Levy, 39 La. An. 551; Fuel Gas Co. v. Myers, 168 111. 139; s. c. 2 South. Rep. 395; Wertheimer s. c. 48 N. E. Rep. 66; aff'g s. c. 64 v. Saunders, 95 Wis. 573; s. c. 37 L. III. App. 270; Jefferson v. Chapman, R. A. 146; 70 N. W. Rep. 824. 127 111. 438; s. c. 20 N. E. Rep. 33; ==> Curtis v. Kiley, 153 Mass. 123; aff'g s. c. 27 111. App. 43. Compare s. c. 26 N. E. Rep. 421. Compare Fitzpatriek v. Chicago &c. R. Co., 31 Stewart v. Putnam, 127 Mass. 403; 111. App. 649. It is said by Fenn, J., Sturges v. Theological Educational speaking for the court in a late case Soc, 130 Mass. 414; Woodman v. in Connecticut: "It Is as sound a rule Metropolitan R. Co., 149 Mass. 335. of law, as of morals, that when, in Under the principle of the text, the the natural course of things, inju- owner of a building who employs a rious consequences will arise to an- contractor to remove walls which other from an act which I cause to have become dangerous, is liable for be done, unless means are adopted by the negligence of the contractor in which such consequences may be pre- performing the work, whereby a vented, I am bound, so far as it lies third person is injured, the same as within my power, to see to the doing though the contractor were his serv- of that which is necessary to pre- ant: Steinbock v. Covington &c. vent the mischief. Failure to do so Bridge Co., 4 Ohio N. P. 229; s. c. 6 would be culpable negligence on my Ohio Dec. 328; Northern Trust Co. part." Norwalk Gas Light Co. v. v. Palmer, 70 111. App. 93; s. c. 2 Chic. L. J. Wkly. 259. VOL. 1 THOMP. NEG. — 38 593 1 Thomp. Neg.] independent contractors. ent contractor. The case was made stronger by the fact that all the officers and emplo3'es of the construction company were connected ■with the gas company.-* § 653. As in Case of Dangerous Excavations in Streets. — This principle has often been applied so as to charge a proprietor with lia- bility for damages to a traveller in consequence of one who has con- tracted with the proprietor to do work on his premises having made a dangerous excavation in the street, and failed properly to guard the same for the protection of the travelling public. These decisions generally proceed upon the principle that where work to be done necessarily constitutes an obstruction or defect in the street which renders it dangerous to travellers, unless properly guarded or shut ofE from public use, the principal for whom the work is done can not defeat a just claim for damages by proving that the work which con- stituted the defect or obstruction was the work of an independent con- tractor.^' Thus, it has been held that an electric railroad company which has let to independent contractors the digging of a certain number of post-holes in a public street, by a contract fixing the size of the holes and nothing more, is liable for an injury caused by falling into one of the holes which is completed two or three days before the accident.^* So, it was held that an incorporated company undertak- ing to lower the grade of its road while in the receipt of toils and while the road is open for travellers, is bound to guard that part retained for public use, to warn travellers of danger threatened by obstructions, and by suitable devices to direct them in the proper route; of which duties it may not divest itself by shifting the responsibility to others.^' So, it has been held that a street railway company is liable for personal injuries caused by negligence in the manner of guarding an excavation in a street which is necessary to the construction of its track, although the work is done by an independent contractor, but under a permit from the city to the company.^* So, a person injured " Chicago Economic Fuel Gas Co. v. Kiley, 153 Mass. 123; s. c. 26 N. E. V. Myers, 168 111. 139; s. c. 48 N. E. Rep. 421. To the contrary is the ill- Rep. 66; aff'g s. c. 64 111. App. 270. considered case of Fuller v. Citi- ^Robbins v. Chicago, 4 Wall. (U. zens' Bank, 15 Fed. Rep. 875 (charge S.) 657, 678; Chicago v. Robbins, 2 to a jury); and the case of Molina Black (U. S.) 418; Spence v. v. McKinnie, 30 111. App. 419. Schultz, 103 Cal. 208; 37 Pac. Rep. =' Donovan v. Oakland &c. Rapid 220; Wiggin v. St. Louis, 135 Mo. Transit Co., 102 Cal. 245; s. c. 36 558; s. c. 37 S. W. Rep. 528; Balti- Pac. Rep. 516. more v. O'Donnell, 53 Md. 110; Cir- "Lancaster Ave. Imp. Co. v. cleville v. Neuding, 41 Ohio St. 465; Rhoads, 116 Pa. St. 377; s. c. 9 Atl. Houston &c. R. Co. v. Meador, 50 Rep. 852; 19 W. N. C. (Pa.) 453. Tex. 77; Logansport v. Dick, 70 Ind. ^'Woodman v. Metropolitan R. Co., 65; Birmingham v. McCary, 84 Ala. 149 Mass. 335; s. c. 4 L. R. A. 213; 469; Detroit v. Cory, 9 Mich. 165; 6 Rail. & Corp. L. J. 72; 21 N. E. Storrs v. Utica, 17 N. Y. 104; Curtis Rep. 482. 594 CASES WHEEE PROPRIETOR LIABLE. [2d Ed. by falling through a wooden trapdoor over an excavation in a side- walk can, where such coverings are prohibited by an ordinance of the city, recover against the owner of the adjoining premises, notwith- standing the fact that a few days before the accident such owner em- ployed a carpenter, who was an independent contractor, to repair the door, and the negligence of the latter contributed to the accident.^' On the contrary, it has been held that a telegraph company is not liable to one who is injured by falling into a hole dug in a public street by a railroad company engaged as an independent contractor in erecting a line of poles and wire for it, where the contract does not require such holes either to be dug in the street or to be left un- guarded, but leaves the manner of erecting the line entirely to the railroad company.^" So, it has been held that a land-owner who makes a contract with another person to provide the materials and construct a sidewalk in front of his premises, retaining no power to direct the manner or means of doing the work, and retaining no con- trol or right of control over the contractor in the performance of the contract in any respect, except that the work shall be in compliance with the contract, — is not liable for an injury caused by stones and other obstructions negligently left in the street by the contractor.^ ^ § 654. Or in Failing to Support Adjacent Land in Building. — So, one who is causing a building to be erected on his own land, stands under the legal duty of supporting the land or building of his neigh- bor, or voluntarily assumes that duty, and if he negligently fails to per- form it, so that the land caves in or the building falls down, he must answer in damages to its proprietor, although he may have commit- ted the work to an independent contractor and left him to his own methods ;^^ and, for stronger reasons, where he does the work by his own servants whom he directs and controls.^ ^ § 655. Other Illustrations. — So, when a person, for his own profit, suspended a lamp over a sidewalk, and permitted its fastenings to become decayed, so that it was knocked down by the negligence of a contractor in repairing it, injuring a foot-passenger, he could not escape payment of damages on the ground that the contractor was not =» Barry v. Terkildsen, 72 Cal. 254; 146; s. c. 21 N. Y. Supp. 385; 66 Hun s. c. 13 Pac. Rep. 657. (N. Y.) 634; Larson v. Metropolitan ™Hackett v. Western Union Tel. St. R. Co., 110 Mo. 234; s. c. 16 L. R. Co., 80 Wis. 187; s. c. 10 Rail. & A. 330; 45 Alb. L. J. 514; 34 Cent. Corp. L. J. 390; 49 N. W. Rep. 822. L. J. 513; 19 S. W. Rep. 416. ^ Independence v. Slack, 134 Mo. == Brown v. Werner, 40 Md. 15. 66; s. c. 34 S. W. Rep. 1094. See also Mound City Paint Co. v. =« Bower v. Peate, 1 Q. B. Div. 321 ; Conlon, 92 Mo. 221 ; s. c. 10 West. Cohen v. Simmons, 50 N. Y. St. Rep. Rep. 100; 4 S. W. Rep. 922. 595 1 Thomp. Neg.] independent contractors. his servant, and that he himself had been guilty of no personal negli- gence.^* So, where a building or a structure is in such a condition that it is liable to fall during the process of removing it or tearing it down, the owner of it is not relieved from liability to one who is injured in consequence of its so falling by the fact that the work of tearing it down and removing it had been committed to an independ- ent contractor." § 656. Responsibility of Proprietor for Fires Set on His Premises by Contractor. — Upon the plainest considerations, this principle ought to be applied to the case where an independent contractor, acting within the terms of his contract, sets out a fire on the premises of the proprietor, where he is doing work under the contract, and the fire spreads to the land of an adjoining proprietor, doing damage there; for certainly it must be conceded that a fire, unless guarded, is likely to lead to mischief. Accordingly, it has been held that a corporation owning land is liable in damages for the act of its contractor in negli- gently and improperly lighting a fire on its land, and permitting it to spread to the land of another owner, although such contractor in so doing disregards special stipulations contained in the contract in regard to the time at which such fire should be lit. To escape liabil- ity, the corporation must show that the act of the contractor was that of a trespasser, and not within the scope of his contract.^^ Contrary to this, and opposed to sound principle, is a holding to the eifeet that a railroad company can not be held liable for injuries resulting to an adjoining property owner from the negligent performance by a third person of his contract to burn the brush growing upon its right of way, when such burning, if carefully done, would have caused no injury.^^ In line with this, another court has held that where an independent contractor, engaged in cutting wood for a railroad com- pany, owns his own cooking car, and it is placed by the company on a spur track to enable the carpenter to do his work conveniently, and a fire is communicated from it, causing damage to a third person, the railroad company is not liable.^* § 6o7. When Proprietor under the Duty of Supervising the Work. — It has been well laid down, that if the building of a house is split up into several different contracts, and the owner undertakes to ^ Tarry v. Ashton, 1 Q. B. Div. '^ St. Louis &c. R. Co. v. Yonly, 314. 53 Ark. 503; s. c. 9 L. R. A. 604; 14 ='Engel V. Eureka Club, 59 Hun S. W. Rep. 800; 45 Am. & Eng. Rail. (N. Y.) 593; s. c. 37 N. Y. St. Rep. Cas. 578. 527 ; 14 N. Y. Supp. 184. '■" Leavitt v. Bangor &c. R. Co., 89 =« Black V. Clirist Church Finance Me. 509; s. c. 36 L. R. A. 382; 36 Co. (P. C.) [1894] A. C. 48. Atl. Rep. 998. 596 CASES WHEEE PROPRIETOR LIABLE. [2d EcT. supply the materials, and no provision is made for the supervision of the work, or for maintaining guards, the duty of protecting the public remains on the owner. ^* § 658. Proprietor Besponsible where he Interferes with the Work, &c.* — If the proprietor interferes with the work of the con- tractor, and directs a particular thing to be done, from which injury results, obviously he will be liable, for it is his own personal act.*" The rule laid down by the N"ew York Court of Appeals on this point was understood by Bosworth, J., to be this : "If an owner modifies in any respect his contract with those contracting to erect a building, so that in doing any particular act they are obeying the directions of the owner, if that act is negligent, and damage ensues, the owner is liable. In such a case, it is his duty to see that what is done under his special orders is not negligently done."*^ Moreover, the proprietor himself may become liable for an injury happening through his personal neg- ligence in performing some particular part of the work. If the pro- prietor performs some part of the work, and another part is let out to a contractor, then the rule applies that, when several persons are engaged in the same work, in which the negligent or unskillful per- formance of his part by one causes danger to the others, in which each must necessarily depend for his safety upon the good faith, skill, and prudence of each of the others in doing his part of the work, it is the duty of each to the others engaged in the work to exercise the care and skill ordinarily employed by prudent men under similar circum- stances.*^ § 659. Proprietor Besponsible where he Retains or Asstunes General Supervision and Control of the Work. — The proprietor may make himself liable by interfering with the contractor and assuming control of the work, or of some part of it, so that the relation of master and servant arises, or so that an injury ensues which is traceable to his in- terference.** If the proprietor retains for himself or for his agent, — for example, for his architect and superintendent, — a general control '"Homan v. Stanley, 66 Pa. St. "HefEernan v. Benkard, 1 Robt. 464. (N. Y.) 436. a This section is cited in § 689. " Griffiths v. Wolfram, 22 Minn. '"Jones v. Chantry, 4 N. Y. S. C. 185. (T. & C.) 63; Davie v. Levy, 39 La. "Gilbert v. Beach, 16 N. Y. 608; An. 551; s. c. 2 South. Rep. 395; s. c. 4 Duer (N. Y.) 423; 5 Bosw. Reynolds v. Braithwaite, 131 Pa. St. (N. Y.) 445; Heffernan v. Benkard, 416; s. c. 18 Atl. Rep. 110; 25 W. N. 1 Robt. (N. Y.) 432; Jones v. Chan- C. 269; 20 Pitts. L. J. (N. S.) 361; try, 4 N. Y. S. C. (T. & C.) 63; Butts 47 Phila. Leg. Int. 426; Meier v. v. J. C. Mackay Co., 72 Hun (N. Y.) Morgan, 82 Wis. 289; s. c. 52 N. W. 562; s. c. 55 N. Y. St. Rep. 137; 25 Rep. 174. N. Y. Supp. 531; s. c. affd 147 N. Y. 715 mem. 597 1 Thomp. Neg.] independent contractors. over the work, not only with reference to results but also with refer- ence to methods of procedure, then the contractor is not deemed an independent contractor, within the meaning of the rule under consid- eration, but he is deemed the mere agent or servant of the proprietor, and the rule of respondeat superior operates to make the proprietor liable for his wrongful acts or those of his servants, whether the pro- prietor directly interfered with the work, and authorized and com- manded the doing of such acts or not ;** otherwise where the proprie- tor retains a supervision of the work merely for the purpose of secur- ing certain results,*" and does not interfere with the manner of con- ducting the work.*' On clearer grounds, the proprietor will be liable where his own agent, by whom he retains the supervision of the work, directs the doing of the particular act which causes the damage.*^ § 660, What Supervision by the Proprietor Will Not Render the Proprietor Liable. — The mere fact that the proprietor retains a gen- eral supervision over the work, for the purpose of satisfying himself that the contractor carries out the stipulations of his contract, does not make him responsible for wrongs done to third persons in the prosecution of the work, — as, where a railway company employs an engineer to superintend the general progress of the construction of its road, and to see that the work is done according to contract;*' or "Mumby v. Bowden, 25 Fla. 454; 79 Pa. St. 300; Pack v. New York, s. c. South. Rep. 453; Linnehan v. 8 N. Y. 222; Nevins v. Peoria, 41 Rollins, 137 Mass. 123; s. c. 50 Am. 111. 502; Cooper v. Seattle, 16 Wash. Rep. 287; St. Johns &c. R. Co. v. 462; s. c. 47 Pac. Rep. 887; Harding Shalley, 33 Fla. 397; s. c. 14 South, v. Boston, 163 Mass. 14; Larson v. Rep. 890. Compare Larsen v. Me- Metropolitan St. R. Co., 110 Mo. 234; tropolitan St. R. Co., 110 Mo. 234; s. c. 16 L. R. A. 330; Norwalk Gas s. c. 16 L. R. A. 330; 19 S. W. Rep. Light Co. v. Norwalk, 63 Conn. 495; 416. Crenshaw v. Ullman, 113 Mo. 633; «Bibb v. Norfolk &c. R. Co., 87 Bibb v. Norfolk &c. R. Co., 87 Va. Va. 711; s. c. 47 Am. & Eng. Rail. 711; Welsh v. Parrish, 148 Pa. St. Cas. 651; 14 S. B. Rep. 163. 599; Casement v. Brown, 148 U. S. *■ Larson v. Metropolitan St. R. 615 ; s. c. 37 L. ed. 582 ; Smith v. Mil- Co., 110 Mo. 234; s. c. 16 L. R. A. waukee Builders' &c. Exch., 91 330; 19 S. W. Rep. 416. Wis. 360; s. c. 30 L. R. A. 504; 64 "Larson v. Metropolitan St. R. N. W. Rep. 1041; Weber v. Buffalo Co., 110 Mo. 234; s. c. 16 L. R. A. R. Co., 20 App. Div. 292; s. c. 47 330; 19 S. W. Rep. 416; Butts v. N. Y. Supp. 7; Kelly v. New York, Mackay Co., 72 Hun (N. Y.) 562; 11 N. Y. 432; Fitzpatrick v. Chicago s. c. 55 N. Y. St. Rep. 137; 25 N. Y. &c. R. Co., 31 111. App. 649; Burmes- Supp. 531; s. c. aff'd 147 N. Y. 715 ter v. New York &c. R. Co., 47 N. Y. mem. Super. Ct. 264. Contra, Harper v. " Clark V. Hannibal &c. R. Co., 36 Milwaukee, 30 Wis. 365. Compare Mo. 202-218; Callahan v. Burlington Blake v. Ferris, 5 N. Y. 48. That &c. R. Co., 23 Iowa 562; Eaton v. the chief engineer is conclusively European &c. R. Co., 59 Me. 520; presumed to have control of the Reedie v. London &c. R. Co., and work of grading a railway: Alabama Hobbitt V. London &c. R. Co., 4 &c. R. Co. v. Coskry, 92 Ala. 254; Exch. 244-258; Erie v. Caulkins, 85 s. c. 9 South. Rep. 202. Pa. St. 247; Reed v. Allegheny City, 598 CASES WHERE PROPKIETOE LIABLE. [2d Ed. where a railway company employs a professional and practical bridge builder of large experience, to build a railway bridge across a river, reserving to its chief engineer the right to criticize both the methods of erection and the workmanship, but not to direct the methods by which the contractor should proceed;*" or where the railroad company stipulates with the contractor for the construction of its road and its bridges, that any foreman or laborer employed by the contractor, who shall execute his work in a faulty or unskillful manner, or be disre- spectful or riotous in his conduct, shall forthwith be dismissed by the direction of the engineer of the railroad company;^'' or where the superintendent of a building used for storing cotton, directs an em- ploye of a contractor engaged to paint the building, to leave only one window open at a time on going through upon a scaffold used by him in painting, because of the danger- from fire by the entrance of sparks.^^ Accordingly, it has been held that a contract between a municipal corporation and a contractor for the construction of a sewer, containing the provision, "All work to be commenced and car- ried on at such times and in such places and in such manner as the engineer shall direct," and requiring the contractor to dismiss from his employment all incompetent and unfaithful persons, did not re- duce the contractor to the grade of a servant of the city, and make it answerable for his negligence. ^^ A stipulation in a railway contract that the work was to be done in accordance with the plans, specifica- tions, and instructions furnished by the company, did not take the case out of the rule.^* The power to watch the general progress of the work and to dismiss incompetent workmen, will not make him responsible for the negligence of the contractor. °* N'or will he be responsible, where he retains the general superintendence of the work, where the contractor engages to discharge any servant at his request, and where he reserves the right to terminate the contract ;''' nor even where he reserves the power, by his engineer, to direct generally what shall be done, if the injury springs from the manner of doing it.^" Where such a contract specified that the ground should be cleared of all per- ishable materials, which should be removed or burned, as the engineer of the company might direct, and the engineer directed the burning of a pile of brush, but it was so negligently done by a subcontractor of the *» Bibb V. Norfolk &c. R. Co., 87 " Hunt v. Pennsylvania R. Co., 51 Va. 711. Pa. St. 475. ™ Bayer v. Chicago &c. R. Co., 68 "Reedie and Hobbitt v. Lon- 111. App. 219. don &c. R. Co., 4 Bxch. 244-258. " Wendler v. Equitable L. Assnr. °° Schular v. Hudson River R. Co., See, 19 App. Div. 50; s. c. 45 N. Y. 38 Barb. (N. Y.) 653. Supp. 866. =» Steele v. Soutb-Eastern R. Co., " Erie v. Caulkins, 85 Pa. St. 247. 16 C. B. 550. 599 1 Thomp. Neg.J independent contractors. principal contractor that damage ensued to an adjacent owner, the company was held not liable." § 661. Proprietor liable Where lie Reserves Full Control as to the Results and Methods. — On the other hand, it is obvious that the con- trol stipulated for in the contract may be so absolute as to make the discretion of the contractor wholly subordinate to that of the prin- cipal, or to that of his engineer, architect, or other superintendent; in which case, the relation of master and servant is deemed to arise, and the maxim of respondeat superior applies."* Whether this is so, must depend in each case upon a just interpretation of the contract itself. "' Thus, where the charter of a city gave the street commis- sioners authority to "direct and control the persons employed" on the streets, and it was stipulated in- the contract that the work was to be done "under the direction of the street commissioners," the city was responsible for an injury to a traveller by the negligence of the eon- tractor. "^ The same result was reached where the contract stipu- lated: "The work to be done under the direction of the city civil engineer, or agent appointed by the city council for the same, who shall have entire control over the manner of doing and shaping all or any part of the same, and whose directions must be strictly obeyed." Under this contract the city was held liable for the negligence of the contractor in depositing a pile of stones so as to obstruct the flow of surface-water and flood the premises of an adjacent owner, partly on the principle of respondeat superior, and partly on the ground that the city owed a public duty to prevent or remove nuisances in its streets.*^ § 662. Application of this Doctrine to Building Contracts where Control is Reserved to Architects and Superintendents. — One court has gone so far as to hold that where a proprietor contracts for the "Callahan v. Burlington &c. R. °°An excellent analysis of the Co., 23 Iowa 562. Compare Wright terms of such a contract will be v. Holbrook, 52 N. H. 120. found in the opinion of Gordon, J., =* Such a contract existed in the in Erie v. Caulkins, 85 Pa. St. 250, case of Newton v. Ellis, 5 El. & Bl. the court concluding that the pro- 115, and between the defendant and prietor was not liable. Upon a con- a subcontractor in Slater v. Mese- tract similar in its main features, reau, 64 N. Y. 138 (affirming 5 Daly the Supreme Court of the United (N. Y.) 445). Such, also, was the States, in Railroad Co. v. Hanning, contract in Blake v. Thirst, 2 Hurl. 15 Wall. 649, reached a different re- & Colt. 20; s. c. 32 L. J. (Exch,) suit. 189; 11 Week. Rep. 1034; 8 L. T. »» St. Paul v. Seitz, 3 Minn. 297. (N. S.) 251. See also Burgess v. ''Cincinnati v. Stone, 5 Ohio St. Gray, 1 C. B. 578; s. c. 14 38. L. J. (C. P.) 184; Pearson v. Cox, 2 C. P. Div. 369. 600 CASES WHERE PROPRIETOR LIABLE. [2d Ed. erection of a building, and, by the terms of the contract, retains con- trol by an architect, under whose direction the contractor agrees to do the work, and also retains the power to change the plan of the work, he will be answerable for the negligence of the contractor.*- This, however, is not the sound view of the usual building contract. The contractor stipulates to deliver to the proprietor certain results. He is responsible to the proprietor for these only. The proprietor does not retain control over the contractor as to his methods of proceeding with the work. He could not do so; for the contractor is generally skilled in the business, and he is not. No contractor could safely stipulate to do a job at a fixed price, and then allow the proprietor to control him in matters of method and detail; for this might destroy his power so to order the work as to make his contract a profitable one. The proprietor usually retains control by a skilled architect, not for the purpose of controlling the contractor in his methods, but for the purpose of assuring himself that the results enumerated in the specifications of the contract are reached by the contractor step by step, as the work progresses. There is no sound view under which such a contract can be construed as creating the relation of master and servant between the proprietor and contractor, and the conclusion of the Illinois court can not be upheld, and the great weight of authority is to the contrary.** °" Schwartz v. Gilmore, 45 IlL 455. In a case arising under the Louisi- ana Code, a contractor engaged with a religious corporation to re- build a cathedral, under the direc- tion and superintendence of the architect appointed by the wardens. While the work was progressing, a tower fell, in consequence of defect- ive materials or construction, injur- ing a servant of the contractor. This person recovered damages in solido against the contractor and the church-wardens. Camp v. The Church-wardens, 7 La. An. 321. This case was distinguished in a subse- quent case (Peyton v. Richards, 11 La. An. 62), on the ground that the church-wardens were liable by rea- son of having reserved control of the work by their architect. But if this raised the relation of master and servant between the proprietor and contractor, then how could a judgment be rendered against the contractor, who had done no more than obey orders, the work not be- ing wrongful per set In Taylor v. Mexican Gulf R. Co., 2 La. An. 654, an agent of the defendants pur- chased a raft with money furnished by th^m for that purpose. For pur- chasing and transporting the raft to the defendants' depot he received a commission. The company was held liable for negligence in sinking a flat-boat in navigating. the raft. »^ This question is well gone over in Robinson v. Webb, 11 Bush (Ky.) 464, with a result the reverse of that in Schwartz v. Gilmore, supra. To the same effect are Erie v.Caulk- ins,85 Pa. St. 247; Reed v. Allegheny, 69 Pa. St. 300; Painter v. Pittsburgh, 46 Pa. St. 213; Pack v. New York, 8 N. Y. 222; Barry v. St. Louis, 17 Mo. 121; Hunt v. Pennsylvania R. Co., 51 Pa. St. 475; Wray v. Evans, 80 Pa. St. 102; Kelly v. New York, 11 N. Y. 432 (reversing s. c. 4 E. D. Smith 291); Gardner v. Bennett, 6 Jones & Sp. 197; Slater v. Mese- reau, 64 N. Y. 138 (affirming 5 Daly (N. Y.) 445) ; Clare v. The National City Bank, 8 Jones & Sp. 104; Paren V. Sellers, 39 La. An. 1011; s. c. 3 South. Rep. 363; Humpton v. Unter- kircher, 97 Iowa 509; s. c. 66 N. W. Rep. 776; Welsh v. Parrish, 148 Pa. St. 599; s. c. 24 Atl. Rep. 86. 601 1 Thomp. Neg.J independent contractors. § 663. Application of this Doctrine to Municipal Corporations. — The rule exempting the proprietor from liability for damages where the work is done by an independent contractor is, in general, the same in its application to a municipal corporation as to any other pro- prietor.^* The rule extends so far as to exempt a municipal corpora- tion from liability for injuries to third persons, occasioned by the negligence of workmen engaged in grading a street, under the direc- tion of a person who has entered into a contract with the corporation to perform the work in conformity to a plan referred to in the con- tract, for a specified sum, to be paid for by the corporation."" An- other court of the same State has held that the fact that a city fails to include in a contract for the grading of a street, a provision that the contractor shall care for and remove all surface water, sewage and drainage which would be interfered with by such grading, does not render the city liable for the negligence of the contractor in failing to provide for the removal of surface water and sewage. °°. But, when applied to municipal corporations, the rule is subject to the qualifica- tion that such corporations are under the absolute duty"'' of exercis- ing reasonable care to the end that their streets and sidewalks are kept free from nuisances and safe for the public travel ; and it is obvi- ous that they are just as much bound to exercise this care for the pre- vention or removal of obstructions, pitfalls or other nuisances placed there by their own contractors as when they are placed there by mere passengers."* Indeed, if this principle is properly carried out it will go far toward making a municipal corporation liable for defects in highways, public sewers and other public improvements which are the result of the negligent manner of doing public work by its con- « Painter v. Pittsburgh, 46 Pa. St. Y.) 66; Schwartz v. Gilmore, 45 111. 213; Reed v. Allegheny City, 79 Pa. 455; Chicago v. Joney, 60 111. 383; St. 300; Wright v. Holbrook, 52 N. Chicago v. Dermody, 61 111. 431; H. 120; Conlin v. Charleston, 15 Harper y. Milwaukee, 30 Wis. 365, Rich. L. 201; Van Wert v. Brooklyn, 374; Hannon v. St. Louis County, 62 28 How. Pr. (N. Y.) 451; Erie v. Mo. 313; Vogel v. New York, 92 N. Caulkins, 85 Pa. St. 247; Pack v. Y. 10; Charlock v. Freel, 125 N. Y. New York, 8 N. Y. 222; s. c. Seld. 357; s. c. 34 N. Y. St. Rep. 971; 26 Notes 94; Kelly v. New York, 11 N. E. Rep. 262; afe'g s. c. 50 Hun N. Y. 432; Barry v. St. Louis, 17 Mo. (N. Y.) 395; 21 N. Y. St. Rep. 963; 121; Gent v. New York, Seld. Notes Wood v. Watertown, 58 Hun (N. Y.) 240; Nevins v. Peoria, 41 111. 502; 298; s. c. 34 N. Y. St. Rep. 808; 11 Hilsdorf v. St. Louis, 45 Mo. 94, 98; N. Y. Supp. 864. Delmonico v. New York, 1 Sandf. ==Pack v. New York, 8 N. Y. 222; (N. Y.) 222; Buffalo Transp. Co. v. Kelly v. New York, UN. Y. 432. Buffalo, 1 N. Y. S. C. (T. & C.) 537; ^ White v. New York, 15 App. Div. Storrs V. Utica, 17 N. Y. 104; Palmer 440; s. c. 44 N. Y. Supp. 454. V. Lincoln, 5 Neb. 137; Scammon v. "Ante, § 533. Chicago, 25 111. 424 ; Buffalo v. Hollo- " Jefferson v. Chapman, 27 111. way, 7 N. Y. 493; s. c. Seld. Notes App. 43; s. c. afC'd, 127 111. 438; 20 25; St. Paul v. Seitz, 3 Minn. 297; N. B. Rep. 33. Lockwood v. New York, 2 Hilt. (N. 602 CASES WHERE PROPKIETOR LIABLE. [2d Ed. tractors if, under the rule obtaining in the jurisdiction, such liability attaches to municipal corporations under any circumstances. '^^ Under either theory, the intermediate agents of the municipal corporation who make the contract or direct the work to be done, will not become liable for any negligence or other wrong by the contractor or the em- ployes in executing it on the ground of respondeat superior, the work not being wrongful per sej but in such a case, if there is any liability on the part of a superior of the immediate actor, it is the liability of the municipal corporation.'" A partial control over the work on the part of a municipal corporation, with a view of seeing to the accom- plishment of certain results, does not establish the relation of master and servant between the corporation and the contractor, where the general control in respect of its manner and method of execution, and the oversight and direction of the performance of the actual labor, remain in the contractor.''^ But 'a general control does have the eifect of rendering the city liable for the negligence of the contractor under the rule of respondeat superior, even though the contract provides that the contractor shall save the city harmless from such liability:'^ a decision opposed to the most rudimentary conceptions of justice. With quite as poor a sense of justice, another court has held that a city which enters into a contract whereby the contractor undertakes to carry off the garbage and refuse collected in the city, to some point in Lake Michigan not less than fifteen miles from the city, and there dump it into the lake, the city reserving to itself the right to relet the contract in ease of improper or "imperfect performance," — is not liable for damages to fishing nets resulting from the garbage being carried into them by the ordinary movements of the water :''' a de- cision which proceeds in disregard of the principle already stated that the proprietor is liable where the injury proceeds from the nature of the work itself.'* °» Beatrice v. Reid, 41 Neb. 214; 32; Beatty v. Thileman (C. P.), 29 s. c. 59 N. W. Rep. 770. Where an N. Y. St. Rep. 498; s. c. 8 N. Y. extension of the work is ordered by Supp. 645; Gary v. Chicago, 60 111. the city engineer, under the terms App. 341. of a contract, the contractor, in exe- " Cooper v. Seattle, 16 Wash. 462 ; outing such extension, will be s. c. 47 Pac. Rep. 887. deemed an independent contractor, " Kuehn v. Milwaukee, 92 Wis. if the terms of the original contract 263; s. c. 65 N. W. Rep. 1030. make him so: Charlock v. Freel, 125 ''* Ante, §§ 648, 649, 650. A city N. Y. 357; s. c. 34 N. Y. St. Rep. which held the title to and right of 971; 26 N. E. Rep. 262; affg s. c. 50 possession of a cemetery within its Hun (N. Y.) 395; 21 N. Y. St. Rep. limits, which was under the con- 963. trol and management of trustees " McKenna v. Kimball, 145 Mass. chosen by the citizens, and remov- 555; s. c. 5 N. Eng. Rep. 523; 14 N. able for cause by the city council, E. Rep. 789. was held liable to an employe work- " Norwalk Gas Light Co. v. Nor- ing under the order of a superin- walk, 63 Conn. 495; s. c. 28 Atl. Rep. tendent, who, with the employe, 603 1 Tliomp. Neg.] independent contractors. § 664. Proprietor Liable if he Accepts Defective Work from Con- tractor. — If the proprietor employs a contractor to do a work not in its nature a nuisance, but when completed it is so by reason of the man- ner in which the contractor has done it, and he accepts the work in this condition, he becomes at once responsible for the existence of the nuisance, upon a principle very similar to that which makes a prin- cipal responsible for unauthorized wrongs committed by his agent, by ratifying them." Thus, if independent contractors make a defective railroad crossing over a public highway, and the railroad company accepts the work, and, in consequence of the defect, a third person is killed, the railroad company must pay damages.'^ § 665. Proprietor Kemains Liable who Delegates an Absolute Duty to an Independent Contractor.^^ — There are certain absolute duties resting upon natural persons and corporations, either by operation of law or by reason of having been voluntarily assumed. The law does not permit a person or corporation to cast ofE such a duty upon an independent contractor so as to exonerate himself or itself for the consequences of its non-performance.''' Of this nature is the duty which rests upon the owners of fixed property of guarding dangerous substances collected upon their property,'* or of guarding dangerous work authorized by them to be done thereon so as to prevent mischief to others. So, we shall elsewhere see, that a common carrier of pas- sengers is under an obligation of exercising a high degree of care to the end that the vehicles and means of transportation, provided by him, shall be safe for the purposes intended; which care can not be devolved by him upon an independent contractor.' ° Other public duties are devolved upon railway companies and other corporations by their charters and are assumed by them when they accept their char- ters ; and it is a sound view that they can not escape responsibility for the failure to perform such duties by delegating the performance of them to independent contractors who may be pecuniarily irresponsi- ble, each of whom may proceed into the country with an army of was appointed by the trustees sub- " Taylor &c. R. Co. v. Warner, 88 ject to the approval of the city coun- Tex. 642; s. c. 3,2 S. W. Rep. 868. ell, for an injury caused by the neg- a This section is cited in §§ 532, ligence of the superintendent and 629, 1067, 1115, 1156. trustees: Toledo v. Cone, 41 Ohio "Jefferson v. Chapman, 127 111. St. 149. 438; s. c. 20 N. B. Rep. 33; aff'g s. c. "Field, J., in Boswell v. Laird, 8 27 111. App. 43; Cabot v. Kingman, Cal. 49; Berberich v. Ebach, 131 Pa. 166 Mass. 403; s. c. 33 L. R. A. 45; St. 165; s. c. 18 Atl. Rep. 1008; 47 44 N. E. Rep. 344. Phila Leg. Int. 178; 25 W. N. C. 'Tost, § 694, et seq. 272; 20 Pitts. L. J. (N. S.) 272; " See title Carriers of Passengers Khron v. Brock, 144 Mass. 516; s. c. in a future volume. 4 N. Eng. Rep. 424; 11 N. B. Rep. 748. 604 CASES WHERE PROPRIETOR LIABLE. [2d Ed. laborers and perform the most oppressive acts toward separate agri- cultural proprietors, who, if such were the law, would be left substan- tially without redress.*" So, where a manufacturing corporation leased from a railway corporation the use of a side-track and switch it thereby assumed the duty toward the railroad company of so man- aging the side-track and switch as not to bring its cars into collision with those of the railroad company, and it can not shift the perform- ance of that duty so as to exonerate itself, upon third persons whom it employs to unload its cars.*^ In short, if a person or corporation stands under pre-existing obligations, however imposed or assumed, to do a particular thing, or to do it in a particular way, he or it can not unload this responsibility upon some one else.*^ For example, a dis- trict council in England, in the construction of a sewer, owes the duty to an abutting owner of doing the work so as not to injure a gas main and cause the escape of gas into his house so as to cause an explosion therein, and can not escape liability for such an injury under the plea that it had delegated the work to an independent contractor.^^ So, if a proprietor employs a contractor to construct a drain from his cellar into the common sewer in the street, through a plank barrier beneath the surface of the street, which surrounds the block of buildings in which the cellar is situated, and the work is go negligently and im- properly done, that, after it is finished, tide water flows through the opening made in the barrier into the plaintiff's cellar, the proprietor employing the contractor to do the work is liable for the damages thereby inflicted upon the plaintiff. In the view of the court, the doctrine of "independent contractor" does not apply to such a case; 'TDut where the thing contracted to be done, from its nature, creates a nuisance, or where, being improperly done, it creates a nuisance and causes mischief to a third person, the employer is liable for it."** § 666. Such as the Protection of the Street or Sidewalk.^ — In line with what was last said in the next preceding section, and with what is said in a former section,*' it has been well held that the fact of letting to an independent contractor the work of building area walls and constructing coal vaults under a sidewalk in front of his premises, ^'The cases of Clark v. Hannibal C.) 507; 7 L. R. A. 649; s. c. 18 &c. R. Co., 36 Mo. 202; Meyer v. Wash L. Rep. 206. Midland &c. R. Co., 2 Neb. 319; Me- ""Hardaker v. Idle Dist. Council Kinley v. Chicago &c. R. Co., 40 Mo. (C. A.) (1896), 1 Q. B. Div. 335; App. 449,— suggest with what im- s. c. 65 L. J. Q. B. (N. S.) 363; 74 punity, under such rule of law, this Law T. Rep. 69. might be done. *" Sturges v. Theological Bduca- '^ Montgomery Gas Light Co. v. tion Society, 130 Mass. 414; s. c. 39 Montgomery &c. R. Co., 86 Ala. 372; Am. Rep. 463. s. c. 5 South. Rep. 735. a This section is cited in § 1156. •^Fowler V. Saks, 7 Mackey (D. ^Ante, § 652. 605 1 Thomp. Neg.J independent conteactors. will not relieve the owner of a city lot from his personal duty of see- ing that an excavation in a sidewalk which he has made for such vault, is guarded with ordinary 'eare;*° and consequently, where such an excavation was originally made by the lot-owner himself, the law imposes upon him the personal duty of guarding it with ordinary care, which duty can not be shifted upon an independent contractor, by letting to him a contract to construct the walls of the vault and to finish the job ; but if such contractor or his servants negligently place a defective covering in a coal-hole above the vault, and a person falls into it, the lot owner is liable.*'' With reference to the care required in replacing the cover of a coal-hole in a sidewalk, the distinction has been taken that the owner of the adjacent building is not answerable for the negligent manner in which a coal company performs its con- tract in delivering coal through such coal-hole, but that such exemp- tion from responsibility continues only while the coal company is per- forming its contract; after which time it is the duty of the owner to give his personal attention, to the end that the cover of the hole is properly replaced so as to make the sidewalk safe for pedestrians.*' § 667. Proprietor Liable who Delegates to a Contractor a Duty Im- posed upon Him by Statute.*^ — Neither can a person invoke this rule to excuse the non-performance of a duty cast upon him by express statute. The sound rule is, that where a statutory obligation is im- posed upon a person, he is liable for any injury that arises to others in consequence of its having been negligently performed; and this, ■whether it were performed by himself or by a contractor employed by him.*' Thus, under a statute,'" A. was empowered to make a drain from his premises to a sewer, by cutting a trench across the highway. The statute provided, in careful terms, that where the surface of a highway should be thus broken, the person so breaking it should re- ^ Hawver v. Whalen, 49 Ohio St. feet in a sidewalk, the defendant 69; s. c. 14 L. E. A. 828; 29 N. E. ought to be allowed to introduce evi- Rep. 1049. dence to show that independent eon- " Hawver v. Whalen, 49 Ohio St. tractors were in possession and con- 69; s. c. 14 L. R. A. 828; 29 N. E. trol of the premises, and that the Rep. 1049. defendant had no notice of the de- -*» Benjamin v. Metropolitan Street feet: Ster v. Tuety, 9 N. Y. St. Rep. R. Co., 133 Mo. 274; s. c. 34 S. W. 632; s. c. 45 Hun (N. Y.) 49. Rep. 590. The following cases are a This section is cited in §§ 626, opposed to the doctrine of the text, 1067, 1115. and are seemingly unsound. One of '"Gray v. Pullen, 5 Best & S. 970; them proceeds upon the ground that Hole v. Sittingbourne &c. R. Co., 6 where the sidewalk is in the exclu- Hurl. & N. 488; s. c. 30 L. J. (Exch.) sive control of the contractor, the 81; 9 "Week. Rep. 274; 3 L,. T. (N. owner is under no duty to see that S.) 750; Weber v. Buffalo R. Co., dangerous excavations are not left 20 App. Div. 292; s. c. 47 N. Y. Supp. uncovered: Ryan v. Curran, 64 Ind. 7. 345. The other holds that, in an '"The Metropolitan Local Board action against a lot-owner for per- Management Act, 18 & 19 Vict, c. sonal injuries received from a de- 120, §§ 77, 110, 111, 605 CASES WHEKE PROPRIETOR LIABLE. [2d Ed. store it to its former condition, or be subject to a penalty for failing so to do. A. employed to do this work a contractor, by whose negli- gence the drain was filled improperly, in consequence of which dam- age ensued to B. It was unanimously held by the Court of Exchequer Chamber,^ ^ reversing a unanimous judgment of the Court of Queen's Bench, "^ that A. was liable to B."^ In another case, a railway com- pany was empowered by its act of Parliament to construct a railway bridge across a navigable river. The act provided that it should not be lawful to detain any vessel navigating the river, for a longer time than sufficient to enable any carriages, animals, or passengers, ready to traverse, to cross the bridge, and to open it to admit such vessel. The company employed a contractor to construct the bridge, in conformity with the act of Parliament ; but, before the works were completed, the bridge, from some defect in its construction, could not be opened, and the vessel of A. was prevented from navigating the river. It was held that the company were liable to A. for this damage.^* These decisions really fall within the class of cases mentioned in a former section,"^ which hold that a person can not excuse the doing of an act unlawful per se, by alleging that it was done by another, who contracted to do it for him. A statute empowers a person or corporation to do a certain act in a certain way. He attempts to do it, but does it in a different way. In so far as he does it in a different way, it is an unlawful act, — ^gen- erally, a nuisance. If an injury happens to any one in consequence of its being thus done in an unlawful manner, he can not avoid liability by alleging that the wrong was that of one with whom he had con- tracted to do the act lawfully, but who did it unlawfully. The privi- lege of doing or having the act done for his benefit is granted only on condition of its being done in a certain way, and he impliedly agrees to answer for injuries which may flow from the doing of the act unless it is done in that way. If we pause to consider the effect of these decisions, we shall see that they go far toward bringing us back to the doctrine of Bush v. Steinman.^'^ On the contrary, there is a holding to the effect that this principle applies only where there is an express and fully defined statutory duty, absolutely imposed upon the owner of the premises, pointing out how and when he is to perform it; and "' Composed of Erie, C. J., Pollock, it is difficult to distinguish between C. B., Keating, J., and Bramwell, a liability imposed by statute and Channell, and Pigott, BB. one subsisting at common law, par- "^ Composed of Cockburn, C. J., ticularly as the statute is only de- and Crompton, Blackburn, and Mel- claratory of the common law. lor, JJ. =* Hole v. Sittingbourne &c. R. Co., ""Gray v. Pullen, 5 Best & S. 970. 6 Hurl. & N. 488; s. c. 30 L. J. On similar facts, where there was (Exch.) 81; 9 Week. Rep. 274; 3 L. no such duty imposed by statute, a T. (N. S.) 750. different result was declared. Sad- "^ Ante, § 648. ler v. Henlock, 4 El. & Bl. 570. But * 1 Bos. & Pul. 404. 607 1 Thomp. Neg.] independent contractors. upon this theory it was held that a statute of Pennsylvania, relating to a natural gas company, enacting "that any company laying a pipe- line, under the provisions hereof, shall be liable for all damages occa- sioned by reason of the negligence of such gas company," — did not extend so far as to make such a company liable for damages caused by an explosion which took place while its pipes were being laid, and which was attributable to the negligence of an independent contractor employed in laying them, the company not having accepted the work and having no notice of the fact that the contractor was proceeding with the work in a negligent manner."' The principle that a railroad company can not delegate to another its charter rights and privileges, does not extend so far as to make the company liable for the negli- gence of an independent contractor engaged in the construction of its road.°* It has been held that a railroad company is not liable for an injury to adjacent property caused by the wrongful act of an independ- ent contractor, in taking earth to construct the embankments from a place and in a manner not authorized by the contract ;*" nor for the dumping of earth by the contractor on the land of the plaintiff out- side of the company's right of way.^°" Another court has seemingly gone further, in holding that the fact that an engineer of a railroad company has no authority over the contractors engaged for the con- struction of a highway crossing, except to see that it is constructed according to the agreed specification, does not show that the company itself did not have such control over the contractors as would make the company liable for their negligence in constructing a crossing at a place which was not a public highway. ^"^ ■"Chartiers Val. Gas Co. v. " Sanford v. Pawtucket Street R. Waters, 123 Pa. St. 220; s. c. 19 Co., 19 R. I. 537; Index SS, 126; s. Pitts. L. J. (N. S.) 235; 23 W. N. C. c. 33 L. R. A. 564; 4 Am. & Bng. R. (Pa.) 175; 16 Atl. Rep. 423; 46 Cas. (N. S.) 318; 35 Atl. Rep. 67; Phila. Leg. Int. (Pa.) 169. It should Cunningham v. International R. Co., be observed in reference to this case 51 Tex. 503. that it was not well decided, upon °°Kerr v. Atlantic &c. R. Co-> 25 the ground, already considered, that Can. S. C. 197. a proprietor who employs an inde- ™ Hughes v. Railway Co., 39 Ohio pendent contractor to do work St. 461. which, unless guarded and cared "' Taylor &c. R. Co. v. Warner, 88 for, is likely to lead to mischief, is Tex. 642, 648; s. c. 32 S. W. Rep. under the personal obligation of tak- 868. Circumstances under which a ing care and pains to prevent such railroad company was held liable mischief. All experience affirms for an injury caused by an attack the conclusion that, with the excep- by a vicious steer, although it had tion of gunpowder, dynamite, and made an independent contract with similar explosives, few substances another to remove and kill injured are more likely to lead to mischief, animals: Texas &c. R. Co. v. June- unless properly guarded, than what man, 71 Fed. Rep. 939; s. c. 30 U. is called natural gas. For the gov- S. App. 541; 18 C. C. A. 349. erning principle in such cases, see ante, § 652. 608 CASES WHERE PKOPRIETOR LIABLE. [2d Ed, § 668. Further of this Doctrine.^ — If we pause to consider the effect of the decisions given in the preceding paragraph which affirm the liability of the proprietor, we shall see that they go far toward bringing us back to the doctrine of Bush v. Steinman.^°^ There is no solid distinction between one's obligation to perform a duty im- posed upon him by statute and a duty imposed by common law. To obstruct the street in front of my premises is a nuisance at common law, and the wrongfulness of the act is not augmented because it is pro- hibited by statute ; such a statute is merely declaratory of the common law. If this act is committed by a contractor doing a job of work for me, it is difficult to see upon what grounds I should be held liable where the act is prohibited by statute,^"^ and not liable where the act is merely a nuisance at common law, as in many of the cases which overrule Bush v. Steinman. In a very able judgment of the Queen's Bench Division, composed of Lord Oockburn, C. J., and Mellor and Field, JJ., Lord Cockburn appealed to Gray v. Pullen for the doc- trine that where one causes an act from which danger may arise to others, he must see to it that others are not thereby injured, and that he can not divest himself of this liability by transferring it to an independent contractor ; and that eminent judge declared that "it can make no difference in point of principle whether the obligation was imposed by statute or existed at law."^"* § 669. Railway Companies Remain Liable if they Devolve the Ex- ecution of their Franchises upon Independent Contractors.'' — If a railway company devolves the execution of its franchise upon con- tractors,^ °° or upon trustees for mortgage bondholders, where such trustees are not acting under the order of any court but are operating the road in the name of the company,^"* — it remains as liable for the acts of such contractor or trustees as though those acts were done by its own servants. It was so held where 'a chartered railroad company permitted a construction company to use its franchises by running passenger trains over its railway.^"^ It is upon the same principle that the courts generally hold that a railway company can not absolve itself from liability for the wrongful acts or omissions of persons operating its road by the fact of having transferred its corporate a This section is cited in § 626. head, 89 Ga. 190 ; s. c. 15 S. E. Rep. '»= 1 Bos. & Pul. 404. 44. '»=See Gray v. Pullen, 5 Best & "'"Wisconsin &c. R. Co. v. Ross, S. 970. 142 111. 8; s. c. 12 Rail. & Corp. L. J. '"Bower v. Peate, 1 Q. B. Div. 81; 31 N. E. Rep. 412. 321, 328. "'" Chattanooga &c. R. Co. v. White- bThls section is cited in §§ 626, head, 89 Ga. 190; s. c. 15 S. E. Rep. 671. 44. See also ante, § 626, et seq. "" Chattanooga &c. R. Co. v. White- VOL. 1 THOMP. NEQ. — 39 609 1 Thomp. Neg.] independent contractors. powers to other parties, as by leasing its road and franchises to them, except by special statutory authority, — the theory being that to per- mit such a devolution of public duties and responsibilities would be contrary to public policy.^"* The true distinction in these eases is that, where the wrongful act is done by contractors or lessees of a rail- way corporation, in pursuance of the special powers and privileges conferred upon it by its charter or by the applicatory general law, and that but for such charter or general enabling statute they would have no right to prosecute the particular business, such contractors or lessees are regarded as servants of the company and acting under its direction for the purpose of conserving the rights of third parties; but that the act which is committed by the company to them is one which does not require, for its lawful performance, the aid of any franchise vested in the company, the rule will be different and the company will not be responsible for the negligence or vnrong of the contractor in performing it, unless such responsibility would attach to any other proprietor under similar circumstances.^"^ Outside of these principles one court has held that a railroad company is respon- sible in damages for every wrong done by a contractor or subcon- tractor within the limits of his duty in grading the roadbed of the company — on the ground that such grading is, in conformity with common knowledge, conclusively presumed to have been done pursuant to the directions of the company given through its engineer. ^^'' Again, as in other cases, the negligence may consist in the direct inter- vention or acts, or omissions of the railroad company itself or of its own servants. Thus, it has been held that where a contractor lays a railroad track under an agreement that those in charge of the con- struction train shall be employed and paid by the company, and not by himself, and that he shall have no contriol of the train, in any man- "^Balsley v. St. Louis &c. R. Co., "To his own master he standeth or 119 111. 68; 5 Thomp. Corp., §§ 5584, falleth." To this the court cite: 5585, 6293. One case is found where Virginia &c. R. Co. v. Washington, the doctrine is stated without quali- 86 Va. 629; s. c. 43 Am. & Bng. R. fication that the lessor of a railroad Cas. 688 (lease) ; East Line &c. R. is not liable to an employe of the Co. v. Culberson, 72 Tex. 375. lessee for injuries resulting from "" West v. St. Louis &c. R. Co., 63 the use of defective machinery, the 111. 545; Sanford v. Pawtucket same being a part of the leased Street R. Co., 19 R. I. 537, Index property: Buckner v. Richmond &c. SS., 126; s. c. 33 L. R. A. 564; 4 Am. R. Co., 72 Miss. 873; s. c. 18 South. & Eng. Rail. Cas. (N. S.) 318; 35 Rep. 449. This decision does not Atl. Rep. 67. See also Toledo &c. seem to conform to the current of R. Co. v. Conroy, 39 111. App. 351, judicial authority. It proceeds upon where the doctrine is inaccurately the ground that, without reference stated. to the question whether the lease ""Alabama &c. R. Co. v. Coskry, was authorized or not, the servant 92 Ala. 254; s. c. 9 South. Rep. 202; of the lessee must look to his own Alabama M. R. Co. v. Williams, 92 master only, for redress of the inju- Ala. 277; s. c. 9 South. Rep. 203. ries sustained by him in the service. 610 CASES WHERE PKOPKIETOK LIABLE. [2d Ed. ner, the company is liable for injuries to a person employed by him, resulting from negligence of those in charge of the construction train.* ^^ § 670. Further of this Subject. — The vigorous justice asserted by another court, presided over by Shaw, C. J., following Biish v. Stein- man, compelled a railway company to pay damages to a traveller who had been injured in the night-time by reason of the fact that the servants of a contractor with the corporation had removed and neg- lected to replace certain barriers which had been placed to protect travellers at a point where a deep cut had been made across the high- way in excavating for the company's road-bed.**^ In a subsequent leading case in the same court, in which Bush v. Steinman was dis- tinctly overruled, this decision was upheld on the following grounds, as stated in the opinion of the court by Thomas, J. :**^ "The defend- ants had been authorized by their charter to construct a railroad from Boston to Lowell, four rods wide through the whole length. They were authorized to cross turnpikes or other highways, so that the rail- road, if necessary, might pass conveniently over or under the same.*** Now, it is plain that it is the corporation that are intrusted by the Legislature with the execution of these public works, and that they are bound, in the construction of them, to protect the public against danger. It is equally plain that they can not escape this responsibil- ity by a delegation of this power to others. The work was done on land appropriated to the purpose of the railroad, and under authority of the corporation, vested in them by law for the purpose. The bar- riers, the omission to replace which was the occasion of the accident, were put up and maintained by a servant of the corporation, and by their express orders ; and that servant had the care and supervision of them. The accident occurred from the negligence of a servant of the railroad corporation, acting under their express orders. The case, then, of Lowell v. Boston and Lowell Railroad stands perfectly well upon its own principles, and is clearly distinguishable from the case at bar. The court might well say that the fact of ISToonan being a contractor for this section did not relieve the corporation from the duties or responsibility imposed on them by their charter and the law, especially as the failure to replace the barriers was the act of their immediate servant, acting under their orders." This salutary doc- trine has been frequently affirmed by other courts.**^ Thus, it has '"Chicago &c. R. Co. v. Clark, 26 (Mass.) 353; s. c. 2 Thomp. Neg., 1st Neb. 645; s. c. 42 N. W. Rep. 703. ed., 868. •"Lowell v. Boston &c. R. Co., 23 "'Mass. Stat. 1830, chap. 4, §§ 1, 11. Pick. (Mass.) 24. ""Lesher v. Wabash Nav. Co., 41 '"Hilliard v. Richardson, 3 Gray 111. 85; Hinde v. Wabash Nav. Co., 611 1 Thomp. Neg.J independent contractors. been held that where a corporation has been authorized by law to enter upon certain premises, 'and take therefrom material for the con- struction of public works by making compensation therefor, if the corporation afterwards contracts with others to do the work, who avail themselves of the authority given to take material, the company will be liable therefor, although the contractors were bound by their eon- tract to furnish the material and do the work for a specified price. Contractors, in such case, are deemed servants of the company; the work is done by the company, and under the authority of law; the immunities and liabilities of the charter attach to the company, and it will be held accountable. That the contractors may be liable over to the' company for any damages, does not relieve the corporation from its primary liability.^ ^° § 671. For what Acts of Independent Contractors Railway Com- panies Wot Liable. — Where the railroad company has not committed the execution of any of its franchises to contractors employed by it to build its road,^^^ the courts in general hold that it stands under the same immunity from liability to answer for the wrongs done by an inde- pendent contractor whom it employs merely to produce certain results and over whose methods it exercises no control, as that which attaches, under like circumstances, to any other proprietor.^ ^' These cases proceed upon the view that a contract, by a railroad company, with another person or corporation for the construction of its road, is not such a delegation of its chartered rights as will render it liable for unauthorized wrongs committed by the contractor or his servants in the prosecution of the work.^^° Therefore, a railroad company will not be liable to a third person for a nuisance resulting from a negli- gent or improper construction of the road by a construction company occupying the position of an independent contractor, even though — 15 111. 72; Ohio &c. R. Co. v. Dun- 111. 85; Hinde v. Wabash Nav. Co., bar, 20 111. 623; Chicago &c. R. Co. 15 111. 72. V. McCarthy, 20 111. 385; Illinois &c. "'Compare ante, §§ 626, 669. R. Co. V. Finnigan, 21 111. 646; lUi- "'Rome &c. R. Co. v. Chasteen, nois &c. R. Co. v. Kanouse, 39 111. 88 Ala. 591; s. c. 7 South. Rep. 94; 272; Toledo &c. R. Co. v. Rumbold, 40 Am. & Eng. Rail. Cas. 559; St. 40 111. 143; Chicago &c. R. Co. v. Louis &c. R. Co. v. Yonley, 53 Ark. Whipple, 22 111. 105; Carman v. 503; s. c. 14 S. W. Rep. 800; McCann Steubenville &c. R. Co., 4 Ohio St. v. Kings County Blev. R. Co., 46 399; Stone v. Cheshire R. Co., 19 N. Y. St. Rep. 327; s. c. 19 N. Y. N. H. 427; Tarry v. Ashton, 1 Q. Supp. 668; Miller v. Minnesota &c. B. Div. 314; Brackett v. Lubke, 4 R. Co., 76 Iowa 655; s. c. 39 N. W. Allen (Mass.) 138; Regina v. Steph- Rep. 188; St. Louis &c. R. Co. v. ens, L. R. 1 Q. B. 702; Rex v. Med- Willis, 38 Kan. 330; s. c. 16 Pac. ley, 6 Car. & P. 292. Rep. 728. "' Lesher v. Wabash Nav. Co., 14 "° Atlanta &c. R. Co. v. Kimberly, 87 Ga. 161; s. c. 13 S. E. Rep. 277. 612 CASES WHERE PROPRIETOR LIABLE. [2d Ed. in view of one court — it is notified that the work is being improperly performed.^ ^° For example, a railroad company was exonerated from liability for the drowning of a boy in a pool of water formed by a heavy storm against an embankment, constructed by an independent contractor and still in his possession and under his uncompleted con- tract.^ ^^ Nor is it answerable in damages for the negligent manage- ment, by such a contractor or his servant, of a construction train em- ployed by him in doing the work,^^^ — unless, as shown in a preceding paragraph,^^^ it allows the contractor to assume its franchises of carry- ing passengers. Even where the railway company furnishes the mo- tive power and operates the construction train by its own engineer, it will not be liable for damages created in operating it where the engineer is under the control of the contractor.^^* It has also been held that a railroad company which has not accepted its road from an independent contractor for its construction at the time a third person received injuries from a nuisance can not be held to have ratiiied any act of the contractor by which the nuisance was created, in the absence of any evidence showing that it had knowledge thereof.^-^ A ruling of the same court to the effect that a street railway company author- ized to lay its track in a street is not liable for injuries occasioned by the negligence of a servant of an independent contractor whom it has engaged to do the work, where it has reserved no control over his con- duct, but that the liability is upon the contractor,^ ^° is not so easy to sustain; since, in such a case, the work is inherently dangerous and likely to lead to mischief, unless properly guarded, which brings the case within the operation of another principle ;^^^ and, moreover, it is a just conclusion that the grant of a franchise to tear up the public streets pf a city is made upon the implied condition that the grantee will see to it that the public are guarded from unnecessary danger during the operation. »™ Atlanta &c. R. Co. v. Kimberly, Ritz, 30 Kan. 31; McCafferty v. 87 Ga. 161; s. c. 13 S. E. Rep. 277. Spuyten Duyvil &c. R. Co., 61 •^Charlebois v. Gogebic &c. R. N. Y. 178; Pawlet v. Rutland Co., 91 Mich. 59; s. c. 51 N. W. Rep. &c. R. Co., 28 Vt. 297; West v. St. 812. Louis &c. R. Co., 63 111. 545. •"" Scarborough v. Alabama &c. R. "= Ante, § 669. Co., 94 Ala. 497; s. e. 10 S. Rep. 316; i^* Miller v. Minnesota &c. R. Co., St. Louis &c. R. Co. V. Willis, 38 76 Iowa 655; s. c. 39 N. W. Rep. 188. Kan. 330; s. c. 16 Pac. Rep. 728; '"^ Atlanta &c. R. Co. v. Kimberly, Hitte v. Republican Valley &c. R. 87 Ga. 161; s. c. 13 S. E. Rep. 277. Co., 19 Neb. 620; Kansas City R. Co. "« Fulton County Street R. Co. v. V. Fitzsimmons, 18 Kan. 34. See McConnell, 87 Ga. 756; s. c. 13 S. also Atchiso'n &c. R. Co. v. Davis, E. Rep. 828. 34 Kan. 202; St. Louis &c. R. Co. v. "^ Ante, § 652. 613 1 Thomp. Neg.J independent contractors. § 672. Liability of Railway Companies for the Trespasses of their Contractors.^ — Several American courts hold that railroad companies are not liable for the unauthorized trespasses of independent contract- ors whom they employ to construct or repair their railroads or other works, where the relation of such contractors to the railroad company is such that an ordinary proprietor would not be liable in a similar ease.^^* It has been held that the fact that, under the contract, the work is to be executed under the supervision of the chief engineer of the railway company, does not take the case out of this rule; since this supervision is reserved merely for the purpose of securing direct results and not for the purpose of controlling the contractor in his methods of procedure. ^^° These decisions seem to involve, in many cases, a denial of justice to property owners through or along whose property railways are constructed. Eailway companies, in building their roads, employ non-residents of the particular districts as con- tractors for that purpose. They are here to-day and away to-morrow. In addition to this, they are often insolvent. What is still worse, they are often composed of mere dummy corporations, organized by the railroad companies themselves for the purpose of escaping liability for wrongs done in the construction of the road. As soon as these dummy corporations have served their purpose they are dissolved, and property-owners who are injured by their trespasses are left remedi- less. The true theory in all of these cases is that of the Supreme Court of Illinois, which has been already adverted to. It is that, whenever the independent contractor, in order to prosecute his work under his contract, must exercise in whole or in part a franchise granted by the legislature to his employer, the railroad company, the company must answer for his torts, because it is bound to see to the correct execution of the powers conferred upon it by the legislature. An enjoinment of this doctrine makes the company liable for all man- ner of trespasses of the contractor done while prosecuting the work Tinder his contract ; because in every such case he is acting in virtue of the franchise conferred by the legislature upon the railway com- pany, — namely, the franchise of building a railroad. Without the possession of that franchise, the railroad company could not be there by its own servants, nor could it be there by an independent con- tractor. In such a case the persons employed by the company to exer- cise its powers are deemed, in law, to be its servants or agents, and it a This section is cited in §§ 626, Colo. App. 414; s. c. 33 Pac. Rep. 627. 684; Wallace v. Newcastle &c. R. '^St. Louis &c. R. Co. V. Knott, Co., 11 Pa. Co. Ct. 347. 54 Ark. 424; s. c. 16 S. W. Rep. 9; ^McKinley v. Chicago &c. R. Co., Chicago &c. R. Co. v. Ferguson, 3 40 Mo. App. 449. 614 CASES WHEEE PROPRIETOR LIABLE. [2d Ed. is answerable for their trespasses ;^^'' and if the trespasses are wanton and malicious, it may be bound to respond therefor in exemplary dam- ages.^^^ If, therefore, the charter of a corporation, formed for public purposes, authorizes it to enter upon the land of private proprietors and take therefrom materials to be used in the construction of its works, the corporation will be answerable for any such materials taken by its contractors, whether it authorized the taking or not, and no matter what its arrangements between itself and its contractors may be.^^'' So, where contractors, employed to construct a railroad, tore down the fences of a proprietor without erecting any temporary bar- riers, gates, or cattle-guards, so that cattle came into his field and destroyed his crops, it was held that the railroad company must answer to him for the damages, on the ground that the contractors were exer- cising the franchise of the company and were its servants. Breese, J., said: "To railroad companies are granted extraordinary privileges, and they must be held so to exercise them as to do the least possible amount of injury to others. The maxim 'sic utere tuo ut alienum non laedas' well applies. The contractors are the servants of the com- pany, and authorized by law, being such servants, to enter upon the defendant's land and take down his fences, if necessary ; but the com- pany must be responsible for the consequences of the act. The con- tractors have no right there except through the grant to the company, and, of course, are the servants and agents of the company in doing that particular work. Their tortious acts are properly chargeable to the company."^^^ On the same ground railway companies have been held liable to the owners of cattle which were run over and killed by the construction trains used by the contractors in building their roads."* On any theory of this subject, if the railroad company ap- propriates the benefit of the trespass, it will be liable to the land- owner on the theory of ratification. Thus, if the contractor makes a wrongful appropriation of the land of another, it will be no answer to his claim for damages against the railroad company to aver that the appropriation was made by a contractor of the company or by a ""Rockford &c. R. Co. v. Wells, it has thus been compelled to pay 66 111. 321; St. Louis &c. R. Co. v. for them. Drennan, 26 111. App. 263. ™ Chicago &c. R. Co. v. McCarthy, '"Rockford &c. R. Co. v. Wells, 20 111. 385. Contra and untenable, supra. McKinley v. Chicago &c. R. Co., 40 "''Lesher v. Wabash Nav. Co.^ 14 Mo. App. 449. 111. 85; Hinde v. Wabash Nav. Co., "* Illinois &c. R. Co. v. Finnigan, 15 111. 72. If in such a case the con- 21 111. 646 ; Chicago &c. R. Co. v. tractor has agreed with the com- Whipple, 22 111. 105. Compare Illi- pany to furnish the materials at his nois &c. R. Co. v. Kanouse, 39 III. own expense, the company may have 272; Toledo &c. R. Co. v. Rumbold, an action over against him for what 40 111. 143 ; Balsley v. St. Louis &c. R. Co., 119 111. 68. 615 1 Thomp. Neg.J independent contractors. receiver of such contractor; but if the railroad company adopts the act of the contractor and the receiver in appropriating the land, it must pay a just compensation to the land-owner.^^° § 673. Proprietor May Become Liable by Express Contract. — This principle can not be appealed to to enable a man to violate express con- tracts into vrhich he has entered.^ ^® A man who enters into a valid contract to do a certain thing, must do it or pay damages for its breach ; and he can not, ordinarily, excuse himself from paying dam- ages by pleading inevitable accident, a vis major, or the like. In gen- eral, nothing but the wrong of the opposite contracting party can be invoked to excuse non-performance. Thus, an incorporated company undertook to lay water-pipes in a city, agreeing with the city to "protect all persons against damages by reason of excavations made by them in laying pipes, and to be responsible for all damages which might occur by reason of the neglect of their employes in the premises." The company let out the work to a contractor. The lat- ter used a steam-drill in such a manner as to frighten a traveller's horse and injure the traveller. An action by the traveller against the company was supported upon the plain ground that they could not evade a liability which they had assumed by contract, by shifting over to another the Avork which they had undertaken to perform.'-^'' So, a proprietor who engages with a contractor to paint his building, the proprietor to furnish the staging for that purpose, is under an implied warranty to furnish a safe staging for that purpose ; and if the staging breaks, injuring the contractor or his servants, the proprietor must pay damages, notwithstanding the staging was built for him by another independent contractor. For, by accepting it from such contractor, he adopts it as his own.^^* The case was also likened to that class of cases where the proprietor of real property is held liable to pay dam- ages to any one who, invited to come upon his premises, is injured by a concealed defect therein.^^® '== Bloomfield R. Co. v. Grace, 112 '''Water Co. v. Ware, 16 Wall. Ind. 128; s. c. 11 West. Rep. 368; (U. S.) 566. 13 N. E. Rep. 680. Upon the same "^Mulchey v. The Methodist Re- theory, a new or reorganized rail- ligious Soc, 6 Reporter 751. road company which subscribes to "" Indermauer v. Dames, L. R. 1 the rights of the old one, must pay C. P. 274; L. R. 2 C. P. 311; s. c. 1 for any land appropriated by its Thomp. Neg., 1st ed., 283; Elliott predecessor and not paid for by it: v. Pray, 10 Allen (Mass.) 378; Gil- Lake Erie &c. R. Co. v. Griffin, 92 bert v. Nagle, 118 Mass. 278; Pick- Ind. 487; Lake Erie &c. R. Co. v. ard v. Smith, 10 C. B. (N. S.) 470; Griffin, 107 Ind. 464; Bloomiield R. Holmes v. North-Eastern R. Co., L. Co. V. Van Slike, 10"V Ind. 480. R. 4 Exch. 254; Coughtry v. Globe "'Erie, C. J., in Gray v. PuUen, Woollen Co., 56 N. Y. 154. 5 Best & S. 985. 616 CASES WHERE PROPRIETOR LIABLE. [2d Ed. § 674. Proprietor Liable for Acts in Violation of Restrictions in Public Licenses for Protection of Third Persons. — On the other hand, the Court of Appeals of New York, in a case where a license or grant was given by the authorities of a city to certain persons to construct a sewer in one of its streets, with the proviso "that the grantees should cause proper guards and lights to be placed at the excavation, and should be answerable for any damages or injuries which might be occasioned to persons, animals, or property in the construction of the sewer," held that this proviso did not inure to the benefit of a stranger, so as to render the grantees liable to him for the negligence of an inde- pendent contractor, to whom they had let out the job, and for whose negligence they would not ordinarily be responsible.^*" But this de- cision has been questioned,^*^ and is manifestly contrary to sound principle. If A. makes a contract with B. for the protection of C, and C. is injured in consequence of B. breaking the contract, C. may recover damages of B.^*- Here, the city granted a license, containing a certain proviso intended for the protection of its citizens. When the grantee accepted the license, the proviso acquired the force of a contract. The person to whom the defendant delegated the construc- tion of the work failed to take the precautions stipulated for in the proviso, and, in consequence of this, a citizen for whose benefit the proviso was intended was injured. Here was clearly a cause of action, on his part, against the defendant. If there was not, efforts of this kind on the part of a city to protect its citizens might be rendered, to a great extent, nugatory.^*^ § 675. Liability in Respect of Premises upon wMch the Public are Invited upon the Payment of a Fee. — Upon grounds very similar, the Court of Queen's Bench ruled that, where a man causes a building to be erected for viewing a public exhibition, and admits persons on pay- ment of money, the contract between him and the persons admitted is analogous to the contract between a carrier and his passengers; that there is implied in such contract a warranty, not only of due care on the part of himself and his servants, but also of due care on the part of any independent contractor who may have been employed by him to construct the means of conveyance or support. Where, therefore, the defendant, acting on behalf of himself and others interested in certain races, entered into a contract with E., who was a competent person to be so employed, to erect and let to them a grand stand for the purpose '« Blake v. Ferris, 5 N. Y. 48. "' See Hole v. Sittingbourne &c. '"Storrs v. Utica, 17 N. Y. 106. R. Co., 6 Hurl. & N. 488; s. c. 30 '"Langridge v. Levy, 2 Mee. & L.J. (Exch.) 81; 9 Week. Rep. 274; W. 519; s. c. 4 Mee. & W. 337. 3 L. T. (N. S.) 750. 617 1 Thomp. Neg.] independent conteactors. of viewing the races ; and the defendant, on behalf of himself and hia colleagues, received 5s. (to be appropriated to the race-fund) from every person admitted, of whom the plaintiff was one ; and the stand had been negligently and improperly constructed (but not to the knowledge of the defendant), and in consequence fell and injured the plaintiff, it was held that the plaintiff could maintain an action against the defendant for the damage sustained, although the defend- ant was free from all negligence, and had employed a competent per- son to erect the stand.^** § 676. Liability of Landlord to Tenant for Negligence of Con- tractor in Repairing Building. — In conformity with this principle, a landlord was held liable to his tenants for damages sustained by them from the weather, in consequence of the act of a contractor, whom he had employed to repair his building, in leaving it unroofed, without covering.^ *° But, in the opinion of an intermediate court in Penn- sylvania, a landlord is responsible to his tenant for an injury arising from the negligence of a plumber in improperly constructing a water- tank on the demised premises.^^" § 677. Effect of Negligence in Selecting the Contractor. — Many of the judges, in their opinions, have qualified the rule, that a proprietor is not liable for damages caused by the negligence of an independent contractor, with the proviso that the proprietor has not himself been negligent in selecting a contractor incompetent or otherwise disquali- fied to do the work which he assumed to do. It was stated in the original edition of this work^*^ that no case had been found where a proprietor had been held answerable for the negligence of an inde- pendent contractor upon this ground alone. Eecently the Supreme Court of Errors of Connecticut, in passing upon the propriety of an instruction to a jury, have held that such a corporation is liable, not only where it knowingly employs an incompetent person to do public work, but also in failing to exercise due and reasonable care to select such as are skillful and competent ;^*^ and the same has been held in Missouri.^* ° In an action in which such an attempt was made, where the defendant was the city of New York, it was ruled that evidence that the contractor was notoriously incompetent was inadmissible, without '" Francis v. Cockrell, L. R. 5 Q. "' 2 Thomp. Neg., 1st ed., p. 908. B. 184; s. c. afiBrmed in Exchequer "'Norwalk Gas Light Co. v. Nor- Chamber, iUd. 501. walk, 63 Conn. 495, 529; s. c. 28 Atl. "» Sulzhacher v. Dickie, 6 Daly (N. Rep. 32. Y.) 469. ""Brannock v. Elmore, 114 Mo. "'Meany v. Abbott, 6 Phila. (Pa.) 55; s. c. 21 S. W. Rep. 451. 256. 618 CASES ■WHERE PROPEIETOK LIABLE. [2d Ed. proof tbat the contracting agents of the defendant knew of such incom- petency ;^^" but the case was reversed on appeal.^^^ § 678. liability of Proprietor for Trespasses of Independent Con- tractor. — In dealing with this subject it should be kept carefully in view, that a proprietor who employs an independent contractor to do work upon his land is not at all liable for any trespasses upon the property of others which the contractor may commit in doing the work, on the theory of respondeat superior; since the contractor is neither his agent nor his servant in the sense of this rule. The mere fact, then, that the independent contractor commits such a trespass while acting witjjin, what might be called, the scope of his employ- ment, — that is to say, while acting in carrying out the contract, — does not at all tend to charge the proprietor with liability, unless the con- tract expressly, or by fair implication, authorizes the contractor to commit the trespass.^ °^ Therefore, in the absence of such an express or implied authorization, 'one who employs a contractor to repair a levee near a highway does not become responsible for an injury caused by an excavation made in the highway by removing dirt therefrom.^ ^^ On the other hand, a proprietor who makes a contract for the doing of an act upon his land which will necessarily require the commission of a trespass upon the premises of an adjoiniag owner will become liable for such trespass if committed, and it will be no defense that it was committed by an independent contractor.^^* § 679. liability of the Proprietor for Injury to Contractor. — An independent contractor, such as we have been considering in this chap- ter, is not deemed a fellow-servant of the ordinary employes of the proprietor, within the meaning of the rule which exonerates a master from the payment of damages done to one of his servants through the negligence of another servant engaged in the same common employ- ment."^ But he stands on the footing of a stranger, or, if he is in- jured through a defect in the premises of the proprietor, he is entitled, equally with a servant of the proprietor, to invoke the principle that the proprietor stands under the absolute duty of taking reasonable care and exercising reasonable skill to the end that the premises, tools, and appliances put in the hands of his servant are reasonably safe for the '"Kelly v. New York, 4 E. D. Rep. 213; s. c. 22 N. Y. Supp. 181; Smith (N. Y.) 291. 2 Misc. (N. Y.) 427; Waller v. Lasher, '"UN. Y. 432. 37 111. App. 609; Coleman v. State, "= Davison v. Shanahan, 93 Mich. 134 N. Y. 564; s. c. 47 N. Y. St. Rep. 486; s. c. 53 N. W. Rep. 624; An- 609; 31 N. E. Rep. 902. draws V. Runyon, 65 Cal. 629. ''"As to this rule, see the title "" Andrews v. Runyon, supra. Master and Servant, in a future vol- ""Ketcham v. Cohn, 51 N. Y. St. ume. 619 1 Tliomp. Neg.J independent contractors. purposes intended. If the contractor does not occupy this favorable position he, at least, occupies a position as favorable as that of a per- son who is invited to come upon the premises of another and who is injured in consequence of a dangerous pitfall therein."" When, therefore, a ladder-hole had been cut in a platform to a mine while the mine was in active operation, by the direction of the superintendent of the mine, and an employe of the mine-owner fell through the hole and was injured, because of the fact that it was not guarded by any railing or lighted and that he had not been warned of its dangerous exist- ence, — it was held that the mine-owner was liable to him in damages and that it was immaterial whether he occupied toward the mine-owner the relation of a servant or of an independent contractor. ^^' § 680. Whether Proprietors Liable for Injuries to Servants of Con- tractors. — The decisions under this head do not seem to be very clear or harmonious, but the governing principle is not difScult of ascertain- ment. Eoundly stated, it is that the relation of master and servant does not subsist between the proprietor and the servant of the contractor; and therefore those obligations which the law imposes upon the master for the protection of one injured while in his service, do not rest upon the proprietor, but upon the contractor. On the other hand, the servant of the contractor must be deemed to be upon the premises of the proprietor by his invitation, express or implied; and therefore he owes him the same duty of guarding him against the consequences of hidden dangers on the premises, that a proprietor would in any case owe to a guest, a customer, or other person coming by invitation upon his premises, — a subject considered in a future chapter.^^^ For example, the proprietor does not owe the same duty to a servant of an independent contractor for the construction of a building upon the premises of the proprietor, which he would owe to his own servants if he were doing the work by means of his own servants ; but such duty devolves upon the contractor. ^"^^ So, a master owes to his servants the duty of exercising ordinary and reasonable care to the end that the fellow-servants with whom he is engaged to work are fit, competent, and sober men ; but the proprietor of a building who employs an inde- pendent contractor to tear it down does not become liable to a servant of such contractor for an injury received through the contractor's incompetency, although such incompetency may have been known to the proprietor at the time of letting the contract."" The same prin- "» Post, § 967, e* seg. "'Humpton v. Unterklrcher, 97 ^"Mayhew v. Sullivan Min. Co., Iowa 509; s. c. 66 N. W. Rep. 776. 76 Me. 100. ""Schip v. Pabst Brew. Co., 64 ^''Post, § 979. Minn. 22; s. c. 66 N. W. Rep. 3. 620 CASES WHEKE PKOPEIETOR LIABLE. [2d Ed. ciple obtains as between a contractor and the servants of his subcon- tractor. In general, the}' can not recover from the principal con- tractor damages for injuries resulting from the negligence of their immediate superior, the subcontractor, where the principal contractor has no control over the subcontractor as to the manner of doing his work.^"^ On the other hand, if the owner of a building employs a contractor to alter and improve it, and forbids the contractor to take down a dangerous wall where he is to build a stack near it, and the dangerous character of the wall is open and obvious, and in conse- quence of the necessary digging by the contractor to obtain a founda- tion for the stack, the wall falls and injures a servant of the subcon- tiactor, the proprietor will be liable ;^*^ because, in such case, he would have been liable if the wall had fallen outward and hurt a stranger on the sidewalk. His liability rests on the footing of knowingly maintaining upon his premises a nuisance dangerous to public travel, in which case, on settled principles, the land-owner is answerable to any one hurt thereby without his own fault. ^"^ In line with this just view, is the holding of another court to the effect that, if a contractor undertakes to place a structure on foundations to be furnished by the land-owner, and the land-owner knowingly fur- nishes an insufficient foundation, and the contractor, knowing of such insufficiency, directs his employes to work upon the structure, and they are injured in consequence of the giving way of the foundation, a joint recovery may be had against the owner and the contractor.^®* So, the owner of a ship who undertook to furnish and put in place a span to be used in connection with the discharge of a cargo by a con- tractor, was required to exercise reasonable care to furnish one fit for the work for which it was to be used, and was liable to a servant of the contractor for failure to exercise such care.^*^ "' Mohr V. McKenziem, 60 111. App. cumstances under which a defect in 575. the design of a steam plant in fail- "^ Pender v. Raggs, 178 Pa. St. ing to provide for a drip or trap to 337. allow the escape of water formed by ^'^ Post, § 1199, et seq. the condensation of steam, did not "' Consolidated Ice Mach. Co. v. render the owner liable for injuries Keifer, 134 111. 481; s. c. 10 L. R. A. to an employe of a subcontractor, 696; 25 N. E. Rep. 799. who was hit by the cap of a steam ■°° Mason v. Tower Hill Co., 83 pipe which was blown off, etc. : Jonea Hun (N. Y.) 479; s. c. 65 N. Y. St. v. Philadelphia Traction Co., 185 Pa. Rep. 192; 32 N. Y. Supp. 36. Cir- St. 75; a. c. 39 Atl. Rep. 889. 621 1 Thomp. Neg.] independent contractors. CHAPTER XXI. LIABILITY OP THE CONTEACTOE. Section Section 685. Liability of the contractor. 688. Examples of the liability of 686. Contractor not liable to stran- ger after work turned over and accepted. 687. Proprietor liable to stranger after accepting the work from the contractor. contractor to third person. 689. Contractor not liable for negli- gence of subcontractor. 690. Liability of the subcontractor to the owner. § 685. Liability of the Contractor. — As in the ease of master and servant, the fact that the proprietor may be liable does not necessarily negative the conclusion of the liability of the contractor. The general rule will be, that the independent contractor will occupy the relation of master and servant as between himself and his own employes, and that such employes will not be regarded as the servants of the pro- prietor. It must follow that, in any case of a negligent injury, where the proprietor becomes liable on the ground that the negligence is that of an independent contractor or his servants, the contractor will be liable.^ Where a statute regulating the construction of certain public works^ provided a special mode of assessing damages to land, a contractor of the public board having such work in charge was nev- ertheless liable to pay damages sustained by an occupier, in conse- quence of his negligence and want of skill.^ So, it is obvious, that where the work which the contractor engages to do is wrongful per se, the owner and the contractor will occupy the position of joint tort ^Charlock v. Freel, 125 N. Y. 357; s. c. 34 N. Y. St. Rep. 971; 26 N. E. Rep. 262; aff'g s. c. 50 Hun (N. Y.) 395; 21 N. Y. St. Rep. 963; Doran v. Flood, 47 Fed. Rep. 543; Geer v. Darrow, 61 Conn. 220; s. c. 23 Atl. Rep. 1087; Wilson v. Chicago, 42 Fed. Rep. 506. Circumstances under which a contractor was exonerated from liability for the death of a painter, employed by the owner of the building, who was killed by fall- ing from a high scaffold, erected by the employes of the contractor: Ma- 622 guire V. Magee (Pa.), 13 Atl. Rep. 551; s. c. 22 W. N. C. (Pa.) 159 (no off. rep.). ^The Metropolis Local Manage- ment Act, 18 & 19 Vict, c. 120, § 225. "Clothier v. Webster, 12 C. B. (N. S.) 790; s. c. 9 Jur. (N. S.) 231. Compare Lawrence v. Great North- ern R. Co., 16 Q. B. 643; Brine v. Great Western R. Co., 2- Best & S. 402; s. c. 31 L. J. (Q. B.) 101; Bart- lett v. Baker, 3 Hurl. & Colt, 153; s. c. 34 L. J. (Bxch.) 8. LIABILITY OF THE CONTKACTOK. [2d Ed. feasors and the person damnified may recover against either or both of them in damages. And where an injury springs from the negli- gent manner in which the contractor has executed the work, and not from the fact of the work being wrongful per se, the contractor will be "primarily liable. And the question whether he was to be deemed an independent contractor or a servant will be immaterial.* § 686. Contractor not Liable to Stranger After Work Turned Over and Accepted.^ — Subject to some qualifications, among them the cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be immi- nently dangerous to third persons f the general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties, by reason of the condition of the work ; but the responsibility, if any, for maintaining or using it in its defective condition, is shifted to the proprietor. The contractor remains liable, if at all, only to the pro- prietor for a breach of his contract.® •Kollock V. Madison, 84 Wis. 458; s. c. 54 N. W. Rep. 725. For this reason, the whole discussion in Charlock v. Freel, 125 N. Y. 357, as to whether or not the defendant was to be deemed an independent con- tractor, was irrelevant. Liability of owners of a dry dock for letting a steamer fall, injuring it, which they were endeavoring to raise by their own methods: Norwich &c. Transp. Co. v. New York &c. Dock Co., 22 Fed. Rep. 672. That con- tractors employed in constructing a railroad can not avoid their liability to a third person working on the same road, who is injured by their negligence, by claiming that the right of way on which he was in- jured was their own: Cameron v. VandegrifE, 53 Ark. 381; s. c. 13 S. W. Rep. 1092. Contractor to repair roof, by whose negligence the goods of the tenant are damaged, liable over to the landlord for a reason- able amount paid by him to the ten- ant in settlement: Maloney v. Brad- ley, 45 N. Y. St. Rep. 864; s. c. 18 N. Y. Supp. 757. Liability of con- tractor to do iron-work on a build- ing, for damages caused by the neg- ligence of his servants in removing and falling to replace certain braces, erected by a contractor of the mason- work to sustain a wall, the wall being blown down by a wind of ex- traordinary violence: Pasquini v. Lowery, 44 N. Y. St. Rep. 339; s. c. 18 N. Y. Supp. 284. In such case, the contractor for the mason-work, who, on quitting work on Saturday night, left the wall properly braced, and who did not return to work until Monday afternoon, not liable by reason of his failure to examine the braces on Monday morning, since he was not bound to anticipate their removal by the other con- tractor: Pasquini v. Lowery, 44 N. Y. St. Rep. 339; s. c. 18 N. Y. Supp. 284. Contractor erecting scaffold for his own work not liable for the death, from its unsafe construction, of an employ^ of another contractor, who goes thereon without invita- tion express or implied, for the pur- pose of accomplishing the work of his own employer: Mauer v. Fergu- son, 44 N. Y. St. Rep. 372; s. c. 17 N. Y. Supp. 349. a This section is cited in §§ 995, 1095. "Ante, § 652; post, § 820, et seq. ' For a note on this subject, col- lecting cases, see 26 L. R. A. 504; also Fitzmaurice v. Fabian, 147 Pa. St. 149; s. c. 1 Pa. Adv. R. 119; 29 W. N. C. 339; 23 Atl. Rep. 444; Easton First &c. Cong. v. Smith, 168 Pa. St. 561; s. c. 26 L. R. A. 504; 2 Ohio Leg. N. 158; 39 Cent. L. J. 452; 43 Am. St. Rep. 808; 30 Atl. Rep. 279. 623 1 Thomp. Neg.] independent contractors. g 687. Proprietor Liable to Stranger after Accepting the Work from the Contractor.^^ — After the contractor has completed the work and turned it over to the proprietor, and the proprietor has accepted it in discharge of the contract, then if, by reason of the negligent man- ner in which the work has been done, a third person suffered injury, the liability, if any, will rest upon the proprietor, and not upon the contractor,' at least, if the work is not, in itself, imminently dan- gerous.^ The obvious reason is that, by his contract, the contractor has assumed no duty to third persons, but only to the other contract- ing party. The contract does not draw him into privity with strang- ers to it; although if, while executing the contract, he commits an injury upon a stranger, he may be liable to him in damages, but as a mere tort-feasor, and independently of the contract.' § 688. Examples of the Liability of Contractor to Third Person.* — It is scarcely necessary to say that contractors who make repairs on a house are responsible for damages to furniture and effects therein, caused by the negligence of themselves or their employes.^" A con- tractor employed to replace an old elevator with a new one has been held liable for injuries to a boy employed by a telegraph company having a right to use a hall in a building, from falling over materials left in the hall by such contractor, without lights or suitable safe- guards, in reliance upon the lighting of the hall by the owner of the building.^^ A contractor engaging to manufacture a certain article, This Is well Illustrated by a leading ing, the fall of which caused the in- case where the defendant contracted juries to a workman for which re- with the postmaster-general to pro- covery was had against a suhcon- Tide mail coaches for a certain post tractor, was built by a contractor, route; a third party contracts to did not render the latter liable to horse the coaches along the same the subcontractor, where he was route, and employed the plaintiff as under no contract to furnish scaf- one of its drivers. The plaintiff was folding for such workman: Sincer injured by some defect in the coach, v. Bell, 47 La. An. 1548; s. c. 18 the fault of defendant. It was South. Rep. 755. An analogous rule held that the plaintiff could not re- is that an agent or servant is not cover damages from the defendant: liable to a third person for non- Winterbottom v. Wright, 10 Mees. & feasance in his employment. For a W. 109. breach of his duty he becomes liable a This section is cited in § 689. to the master, who in turn may be ' Curtin v. Somerset, 140 Pa. St. charged in damages for injuries to 70; s. c. 12 li. R. A. 322; 27 W. N. third persons occasioned by the C. 336; 48 Phila. Leg. Int. 96; 21 servant's nonfeasance: Van Ant- Pitts. L. J. (N. S.) 418; 21 Atl. werp v. Linton, 89 Hun (N. Y.) 417. Rep. 244; Fitzmaurice v. Fabian, 147 a This section is cited in § 1095. Pa. St. 199; 1 Pa. Adv. R. 119; 29 "McDonald v. Morrison, Rap. W. N. C. 339; 23 Atl. Rep. 444. Jud. Quebec, 15 S. C. 143. ^Swan V. Jackson, 55 Hun (N. "Crane Elevator Co. v. Lippert, Y.) 194; s. c. 27 N. Y. St. Rep. 941; 63 Fed. Rep. 942; s. c. 11 C. C. A. 7 N. Y. Supp. 821. 521. ° So, the mere fact that a scaffold- 624 LIABILITY OF THE CONTKACTOE. [2d Ed. who constructed it so negligently that it broke, damaging adjacent property, was held liable for such damage.^^ Building contractors employed to erect a scaffold to be used by the employes of an inde- pendent contractor, having work to do on the building, are liable in damages to the employes of such other contractor, if they are injured in consequence of the scaffold having been defectively constructed.^^ A corporation authorized by statute to insure, and also to inspect steam boilers and stationary engines, and to issue certificates stating their maximum working pressure, which certificates should be accept- ed by the chief inspector for Philadelphia, — was held liable for the damages resulting to third persons from a negligent inspection and a false certificate.^* § 689. Contractor not Liable for Negligence of Subcontractor. — If a general contractor of work, in turn, sublets the whole, or portions of the work, to independent contractors, he will occupy toward them, in respect of liability for their wrongs, a position analogous to that which is occupied by a proprietor toward an original independent con- tractor: he will not be liable for the wrongs committed by them, or their servants, except in cases where a proprietor would be liable, under like circumstances, for the wrongs of an independent con- tractor or his servants." For example, if the general contractor for " Erie City Iron Works v. Barber, Maloney v. Brady, 45 N. Y. St. Rep. 102 Pa. St. 156. 864; s. c. 18 N. Y. Supp. 757. Lia- " Hoffner v. Prettyman, 6 Pa. bility of a steel company which has Super. Ct. 20; 41 W. N. C. 258. constituted another its agent, to put " Bradley v. Hartford &c. Ins. Co., up a bridge out of material which 19 Fed. Rep. 246. Whether the floor it has contracted to furnish to the of a building fell in consequence of employes of such agent, for failing its negligent construction by the to talje care to comply with the re- contractor, or by reason of being quirements of the contract, in so overloaded with building materials, far as is necessary for the safety of was held in an action against the such employes: Bross v. Carnegie contractor a question for the jury: Steel Co., 28 Pitts. L. J. (N. S.) 318. Gardner v. Friederich, 25 App. Div. Mere advertisers licensed to go on 521; s. c. 49 N. Y. Supp. 1077. Cir- the roof of a building to place ad- cumstances under which the ques- vertisements upon a sign which is a tion whether or not the driver of a fixture on the building, and which horse by which an elevator was op- does not belong to them, they hav- erated, was guilty of negligence ren- ing no right of possession of any dering his employer, a subcontract- part of the building, — not liable for or, liable for injuries to an employ§ the fall of the sign from the build- of another subcontractor, — was a ing in a high wind : Reynolds v. Van question for the jury: Eckman v. Beuren, 155 N. Y. 120; s. c. 42 L. R. Lauer, 67 Minn. 221; s. c. 69 N. W. A. 129; 49 N. E. Rep. 763; rev'g s. c. Rep. 893. That a contractor en- 10 Misc. (N. Y.) 703. gaged to repair a roof, is liable to ^'CufE v. Newark &c. R. Co., 35 the owner of the building for a rea- N. J. L. 17, 574; Slater v. Mesereau, sonable amount paid by him to his 64 N. Y. 138 (affirming 5 Daly (N. tenants for damages to their goods Y.) 445); Rapson v. Cubitt, 9 Mee. through the negligence of the con- & W. 710; s. c. Car. & M. 64; 6 Jur. tractor in making such repairs, — see 606; Overton v. Freeman, 11 C. B. VOL. 1 THO.\IP. NEC. — 40 62o 1 Tliomp. Neg.] independent CONTEACXOBi. the erection of a building, accepts a portion of the work from a snUr contractor, with knowledge of its condition, and the work thus accept- ed is so defective as afterwards to cause the building, while still in course of erection, to fall upon an adjoining property, the general contractor will be liable for the damages;^® because an orginial pro- prietor would be liable under like circumstances.^^ So, if a person contracts with a municipal corporation to do a job of blasting rock or to perform any other work which is intrinsically dangerous to others, he will not be relieved from liability to a person injured thereby from the fact that he sublet the contract to another by whose negligence the injury actually occurred;^* since, under such circum- stances, a proprietor would be liable for damages happening through the failure of an original contractor.^® The responsibility rests on the subcontractor himself.^" Nor is a subcontractor liable for the neg- ligence of his subcontractor;^^ and so on, down as far as successive independent employments may obtain. So, as in case of a proprietor, a contractor may make himself liable for the negligence of an inde- pendent subcontractor by having the work, during its progress, under a gwast-supervision, — as, where the principal contractor does work on other parts of the building, or accepts the work and pays for it by installments as it progresses.^^ A contractor to erect a building does not become liable to a penalty imposed by a city ordinance prohibiting the deposit of the material in the street without a permit, because the ordinance has been violated by an independent subcontractor, where the original contractor had no authority to direct him in the matter ; nor will the failure of the original contractor to procure such permit make him liable, where there is no necessity for depositing the material in the street, and he does not know that it will be done.^' § 690. Liability of the Subcontractor to the Owner. — It is quite clear that if a subcontractor, by his negligence, injures the property of 867; s. c. 16 Jur. 65; 21 L. J. (C. P.) ^^ Buffalo v. Clement, 46 N. Y. St. 52; 3 Car. & Kir. 52; Berberich v. Rep. 676; s. c. 19 N. Y. Supp. 846. Ebach, 131 Pa. St. 165 ; Powell v. It has been well reasoned by a court Virginia Constr. Co., 88 Tenn. 692; of common pleas in Pennsylvania, s. c. 13 S. W. Rep. 691. that liability for negligence can not " Berberich v. Bbach, 131 Pa. St. be shifted from the contractor to 165. an alleged subcontractor, unless the " Ante, § 687. latter assumed the entire charge and "Buddin v. Fortunato, 31 N. Y. control of the work; and further, St. Rep. 278; s. c. 10 N. Y. Supp. that where one is chosen for the pur- 115. pose of enabling the proprietor to "Anie, § 652. escape liability, he ought not to be ™Holt v. Whatley, 51 Ala. 569. regarded in law as an independent ^'Knight V. Pox, 5 Exch. 721; s. c. contractor or subcontractor: Fox v. 14 Jur. 963; 20 L. J. (Exch.) 9. Porter, 6 Pa. Dist. R. 85; s. c. 18 ^ Bast v. Leonard, 15 Minn. 304. Pa. Co. Ct. 641. Compare ante, § 658, et seq. 626 LIABILITY OF THE CONTRACTOR. [2d Ed. the owner, he thereby becomes liable to the owner for the damage, and this wholly without reference to whether he is to be regarded as an independent contractor, or a subcontractor, or as a servant of the chief contractor or of the owner, or as a mere stranger.^* "Bickford v. Richards, 154 Mass. 163; s. c. 27 N. E. Rep. 1014. 627 TITLE SIX. CARE AND RESTRAINT OF DANGEROUS AGENCIES. 629 TITLE SIX. CARE AND RESTRAINT OF DANGEROUS AGENCIES. Chapter. XXII. Care and Restraint of Dangerous Things Artificially Collected on One's Own Land, XXIII. Noxious Gases and Liquids, . . . XXIV. Fire, Other than Railway Fire, . XXV. Explosives, Steam Boilers, Blasting, XXVI. Fire-arms, Fire-works, etc., . . . XXVII. Electricity, XXVIII. Liability for Vending, Shipping, or Letting Dangerous Goods or Machines, Conunu- nicating Contagious Diseases, etc., . . . §§ 694-714. 718-725. 726-754. 758-775. 778-792. 795-814. §§ 817-835. CHAPTER XXII. CARE AND RESTRAINT OF DANGEROUS THINGS ARTIFICIALLY COLLECTED ON one's own land. Section 694. General duty so to use one's own land or to conduct one's own business as not to injure one's neighbor. 695. English doctrine as to liability for artificially collecting upon one's own land sub- stances which have a tend- ency to escape and get upon the land of another. 696. American doctrine on the same subject. 697. Illustration in the case of water artificially collected upon one's own land. Section 698. Illustration in the case of sew- age escaping into the cellar of a neighbor. 699. Illustration in the case of in- jury to cattle from noxious trees. 700. English rule not applicable to those extraordinary floods at- tributable to the "act of God." English rule not applicable where the water breaks loose in consequence of the act of a third person. 631 701. 1 Thomp. Neg.] care of dangerous agencies. Section 702. English rule not applicable as between tenants of different floors of the same building. 703. Other English cases limiting the doctrine of Rylands v. Fletcher. 704. The value of Rylands v. Fletcher. 705; Boctrine of Rylands v. Fletcher followed in some American courts. 706. But the American doctrine de- cisively against that case in respect of liability for escape of water. 707. Rule of diligence in restrain- ing water is ordinary care. Section 708. Liability for escape of water, how affected by relation of landlord aud tenant. 709. Liability for escape of water into subjacent mines. 710. Other questions of liability for escape of water. 711. Evidence of negligence In such cases. 712. Effect of ignorance of the dan- gerous nature of a substance brought upon one's own premises. 713. Liability where the dangerous substance is brought upon the defendant's premises without his knowledge. 714. Injury caused by the giving way of retaining walls. § 694, General Duty so to Use One's Own Land or to Conduct One's Own Business as Not to Injure One's Neighbor.^ — We may commence this discussion by referring to a maxim of the most general applica- tion, more frequently appealed to in cases classified under the head of nuisance than in those classified under the head of negligence, — sic utere tuo ut alienum non laedas, — which means, so use your own prop- erty as not to injure that of your neighbor.^ This maxim, in its a This section is cited In §§ 665, 795, 1060. '■ The reader who desires to ex- plore this maxim may do so by ex- amining and comparing the follow- ing cases: Moellering v. Evans, 121 Ind. 195; s. c. 6 L. R. A. 449; 22 N. E. Rep. 989; American Bell Teleph. Co. V. United States, 68 Fed. Rep. 542, 563;. s. c. 71 Off. Gaz. 1903; Buckley v. Cunningham, 103 Ala. 449; s. c. 15 South. Rep. 826; Pekin V. McMahon, 154 111. 141; s. c. 39 N. E. Rep. 484; 27 L. R. A. 206; aff'g 53 111. App. 189; Louisville &c. R. Co. V. Black, 54 111. App. 82; Herr v. Central Kentucky Lunatic Asylum, 17 Ky. L. Rep. 320; 28 L. R. A. 394; 41 Cent. L. J. 37; 30 S. W. Rep. 971; Eads V. Gaines. 58 Mo. App. 586; Ferguson v. Miami Powder Co., 9 Ohio C. C. 445; s. c. 3 Ohio Dec. 65; Getting v. Union Improv.Co.,7 Kulp. (Pa.) 493; s. c. 1 Lack. L. News 51; Frost V. Berkley Phosphate Co., 42 S. C. 402; s. c. 26 L. R. A. 693; 20 632 S. E. Rep. 280; Cumberland Teleg. &c. Co. V. United Electric Co., 93 Tenn. 492; s. c. 27 L. R. A. 236; 10 Am. Rail. & Corp. Rep. 549; 29 S. W. Rep. 104; Brimm v. Jones, 11 Utah 200; s. c. 29 L. R. A. 97; 39 Pac. Rep. 835; Patten Paper Co. v. Kaukauna Water Power Co., 90 Wis. 370; 28 L. R. A. 447; 63 N. W. Rep. 1019; denying rehearing in 90 Wis. 370; 28 L. R. A. 443; 61 N. W. Rep. 1121; Arave v. Idaho Canal Co. (Idaho), 46 Pac. Rep. 1024 (no off. rep.) ; Brown v. Cooper, 10 Tex. Civ. App. 512; s. c. 31 S. W. Rep. 316; Brummit v. Purness, 1 Ind. App. 401; s. c. 27 N. E. Rep. 656; Gilfillan V. Schmidt, 64 Minn. 29; s. c. 31 L. R. A. 547; 66 N. W. Rep. 126; Lefrois v. Monroe County, 48 N. Y. Supp. 519; McCabe v. O'Connor, 4 App. Div. 354; s. c. 38 N. Y. Supp. 572; George v. Wabash &c. R. Co., 40 Mo. App. 433; Hurd v. Lacey, 93 Ala. 427; s. c. 9 South. Rep. 378; Hanley v. Banks, 6 Okla. 79; s. c. DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2d Ed. widest use, imposes upon every person or corporation the obligation of so using his or its property, fixed or movable, or of so conducting his or its business, as not to injure the property of another. We are not concerned with the proper limitations of this maxim, so far as it concerns the inquiry what things a man may lawfully do upon his 51 Pac. Rep. 664; Norfolk &c. R. Co. V. Carter, 91 Va. 587; s. c. 22 S. E. Rep. 517; St. Louis &c. R. Co. v. Ellis, 58 111. App. 110; Kelley v. New York, 89 Hun (N. Y.) 246; Burke County Comrs. v. Catawaba Lumber Co., 116 N. C. 731; s. c. 21 S. B. Rep. 941; rev'g on rehearing 115 N. C. 590; s. c. 20 S. E. Rep. 707, 847; Pennsylvania Lead Co.'s Appeal, 96 Pa. St. 127; Baltimore v. Warren Man. Co., 59 Md. 106; St. Louis &c. R. Co. V. Hecht, 38 Ark. 367; Pal- loon V. Schilling, 29 Kan. 295 ; Krue- ger V. Ferrant, 29 Minn. 338; Ex parte Koser, 60 Cal. 214; East Ten- nessee &c. R. Co. V. Watson, 94 Ala. 634; s. c. 10 South. Rep. 228; Chi- cago &c. R. Co. V. Coggswell (111. App.), 31 Am. L. Reg. 526; State V. Tenant, 110 N. C. 609; s. c. 15 L. R. A. 423; 14 S. E. Rep. 387; 37 Am. & Eng. Corp. Cas. 457; Schultz V. Byers, 53 N. J. L. 442; s. c. 13 L. R. A. 539; 44 Alb. L. J. 290; 33 Cent. L. J. 300; 26 Am. St. Rep. 435; 22 Atl. Rep. 514; Keiser v. Maha- noy City Gas Co., 143 Pa. St. 276; s. c. 28 W. N. C. 369; 48 Phila. Leg. Int. 477; 22 Atl. Rep. 759; Williams V. Union Improv. Co., 1 Pa. Dist. R. :.j8; s. c. 6 Kulp. 417; Martin v. Reed, 10 Pa. Co. Ct. 614; Central Pennsylvania Teleph. &c. Co. v. Wilkes Barre &c. R. Co., 1 Pa. Dist. R. 628; s. c. 6 Kulp. 383; 11 Pa. Co. Ct. 417; Roanoke Gas Co. v. Roan- o>e, 88 Va. 810; s. c. 16 Va. L. J. COo; s. c. 14 S. B. Rep. 665; Bibb v. yorfolk &c. R. Co., 87 Va. 711; s. c. ^7 Am. & Eng. Rail. Cas. 651; 31 Am. L. Reg. 319; 14 S. E. Rep. 163; Drake v. Lady Bnsley Coal &c. Co., 102 Ala. 501; s. c. 24 L. R. A. 64; s. c. 1 Toledo Leg. News 35; 14 South. Rep. 749; Tennessee Coal &c. Co. V. Hamilton, 100 Ala. 252; s. c. 14 South. Rep. 167; Milligan v. Nel- son, 51 111. App. 441; s. c. aff'd in 151 111. 462; s. c. 38 N. B. Rep. 239; Matthews v. St. Louis &c. R. Co., 121 Mo. 298; s. c. 25 L. R. A. 161; s. c. 24 S. W. Rep. 591; Smith v. IngersoU-Sergeant &c. Co., 7 Misc. 374; s. c. 27 N. Y. Supp. 907; Smith V. Norfolk &c. R. Co., 114 N. C. 728; s. c. 25 L. R. A. 287; 19 S. E. Rep. 863, 923 ; Hague v. Wheeler, 157 Pa. St. 324; s. c. 22 L. R. A. 141; Penn- sylvania Gas Co. V. Warren &c. Gas Co., 3 Pa. Dist. R. 67; Evans v. Reading Chemical &c. Co., 160 Pa. St. 209; s. c. 28 Atl. Rep. 702; Tampa Waterworks Co. v. Cline, 37 Pla. 586; s. c. 33 L. R. A. 376; 20 South. Rep. 780; Montana Co. v. Gehring, 44 U. S. App. 629; s. c. 75 Fed. Rep. 384; Wheeler v. St. Jo- seph &c. Co., 66 Mo. App. 260; s. c. 2 Mo. App. Rep. 1309; State v. Har- rington, 68 Vt. 622; s. c. 34 L. R. A. 100; 35 Atl. Rep. 515; Rouse v, Martin, 75 Ala. 515; Martin v. Og- den, 41 Ark. 193; Bransom v. La- brot, 81 Ky. 641; Orient Ins. Co. v, Daggs, 172 U. S. 557; s. c. 43 L. ed, 552; 19 Sup. Ct. Rep. 281; 28 Ins, L. J. 97; aff'g 136 Mo. 382; s. c 35 L. R. A. 227; 26 Ins. L. J. 67; 38 S. W. Rep. 85; Memphis &c. R. Co. V. Martin, 117 Ala. 367; s. c. 23 South. Rep. 231 ; Hoadley v. M. Sew- ard & Sons Co., 71 Conn. 640; s. c. 42 Atl. Rep. 997; Plumb v. Christie; 103 Ga. 686; s. c. 30 S. B. Rep. 759; 42 L. R. A. 181; Opelousas Board of Aldermen v. Norman, 51 La. An. 736; s. c. 25 South. Rep. 401; Har- rington V. Providence, 20 R. I. 233; s. c. 38 L. R. A. 305; 38 Atl. Rep. 1; State V. Theriault, 70 Vt. 617; s. c. 43' L. R. A. 290; 41 Atl. Rep. 1030; 67 Am. St. Rep. 695; McBryan v. Canadian &c. R. Co., 29 Can. S. C. 359; State v. Gilman, 33 W. Va. 146; s. c. 6 L. R. A. 847; 10 S. E. Rep. 283; Timlin v. Standard Oil Co., 54 Hun (N. Y.) 44; 21 N. Y. St. Rep. 42; 7 N. Y. Supp. 158; People v. Utica Cement Co., 22 111. App. 159; Hanford v. St. Paul &c. R. Co., 43 Minn. 104; s. c. 7 L. R. A. 722; s. c. 41 Alb. L. J. 497; 44 N. W. Rep. 1144; Rogan v. Dockery, 23 Mo. App. 313; Schneider v. Missouri &c. R. Co., 29 Mo. App. 68; Wilhelm v. Burleyson, 106 N. C. 381; s. c. 11 S. E. Rep. 590; United States v. Douglas-Willan Sartoris Co., 3 Wyo. 287; s. c. 22 Pac. Rep. 92; West 633 1 Thomp. Neg.J care of dangerous agencies, own premises, although more or less injurious to his neighbor. It may be, as held in one case, that the doing of an act upon one's own land, which goes no farther than to interfere with the convenient use by a neighbor of his own land, does not give a right of action to such neighbor, unless the act was negligently done, or had a direct and positive injurious efEect.^ Whether this is the accurate statement of an abstract right we need not inquire; since the inquiry would take us into the domain of positive rights which, in this regard, are treated, in a proper legal analysis under the head of nuisance, and not under the head of negligence. We are rather concerned with the doctrine Point Water Power &c. Co. v. State, 49 Neb. 218; s. c. 66 N. "W. Rep. 6; rev'd on rehearing in 68 N. W. Rep. 507; s. c. 49 Neb. 233; KincMow v. Midland Elevator Co., 57 Kan. 374; s. c. 46 Pac. Rep. 703; Hill v. Schneider, 13 App. Div. 299; s. c. 43 N. Y. Supp. 1; Weil v. St. Louis &c. R. Co., 64 Ark. 535; s. c. 9 Am. & Eng. Rail. Cas. (N. S.) 721; 43 S. W. Rep. 967; Suffolk Gold Min. &c. Co. V. San Minguel Consol. Min. &c. Co., 9 Colo. App. 407; s. c. 48 Pac. Rep. 828; Smith v. Clark Hardware Co., 100 Ga. 163; s. c. 39 L. R. A. 607; 28 S. B. Rep. 73; Gll- dersleeve v. Hammond, 109 Mich. 431; s. c. 4 Det. L. N. 117; 43 Cent. L. J. 97; 33 L. R. A. 46; 67 N. W. Rep. 519; Humpton v. Unterkircher, 97 Iowa 509; s. c. 66 N. W. Rep. 776; Smith v. Brooklyn, 18 App. Div. 340; s. c. 46 N. Y. Supp. 141; Taylor V. Granger, 19 R. I. 410; Index SS. 8; 37 Atl. Rep. 13; 34 Atl. Rep. 13; People V. Burtleson, 14 Utah 258; s. c. 47 Pac. Rep. 87; Willett v. St. Albans, 69 Vt. 330; s. c. 38 Atl. Rep. 72 ; Union Mills &c. Co. v. Dangberg, 81 Fed. Rep. 73; Brunswick-Balke &c. Co. v. Rees, 69 Wis. 442; s. c. 34 N. W. Rep. 732; Boynton v. Long- ley, 19 Nev. 69; s. c. 6 Pac. Rep. 437; Central &c. Co. v. Ingram, 98 Ala. 395; s. c. 12 South. Rep. 801; Lorenz v. Waldron, 96 Cal. 243; s. c. 31 Pac. Rep. 54; Chandler Electric Co. v. Fuller, 21 Can. S. C. 337; Staton V. Norfolk &c. R. Co., Ill N. C. 278; s. c. 17 L. R. A. 838; 52 Am. & Eng. Rail. Cas. 686; 16 S. B. Rep. 181; Brennan v. Schreiner, 28 Abb. H.. Cas. 481; s. c. 20 N. Y. Supp. 130; O'Neil v. Breese, 3 Misc. 219; s. c. 52 N. Y. St. Rep. 646; 23 N. Y. Supp. 526; Pennsylvania R. Co. V. Braddock Electric R. Co., 152 Pa. St. 116; s. c. 31 W. N. C. 311; 23 634 Pitts. L. J. (N. S.) 329; 25 Atl. Rep. 780; Klepsch v. Donald, 4 Wash. 436; s. c. 31 Am. St. Rep. 936; 30 Pac. Rep. 991; Ockerhausen v. Ty- son, 71 Conn. 31; s. c. 40 Atl. Rep. 1041; Norton v. North Carolina R. Co., 122 N. C. 910; s. c. 29 S. E. Rep. 886; Troth v. Wills, 8 Pa. Super. Ct. 1; s. c. 42 W. N. C. 504; Town V. Missouri &c. R. Co., 50 Neb. 768; 70 N. W. Rep. 402; State v. Murlin, 137 Mo. 297; s. c. 38 S. W. Rep. 923; Singer Man. Co. v. June Man. Co., 163 U. S. 169; s. c. 41 L. ed. 118; 75 Off. Gaz. 1703; 16 Sup. Ct. Rep. 1002; Briscoe v. Alfrey, 61 Ark. 196; s. c. 30 L. R. A. 607; 32 S. W. Rep. 505 ; Joseph v. Ager, 108 Cal. 517; s. c. 41 Pac. Rep. 422; Springfield Water Works Co. v. Jen- kins, 62 Mo. App. 74; s. c. 1 Mo. App. Rep. 199; Newell v. Woolfolk, 91 Hun (N. Y.) 211; s. c. 71 N. Y. St. Rep. 129; 36 N. Y. Supp. 327; Odell V. Nyack Water Works Co., 91 Hun (N. Y.) 283; s. c. 71 N. Y. St. Rep. 94; 36 N. Y. Supp. 206; Robertson V. Youghiogheny River Coal Co., 172 Pa. St. 566; s. c. 27 Pitts. L. J. (N. S.) 67; 33 Atl. Rep. 706; Bannon v. State, 49 Ark. 167 ; s. c. 4 S. W. Rep. 655; Union &c. R. Co. v. DeRusk, 12 Colo. 294; s. c. 3 L. R. A. 350; s. c. 2 Denver Leg. News 122; 20 Pac. Rep. 752; State v. Yopp, 97 N. C. 477; s. c. 2 Am. St. Rep. 205;' 2 S. E. Rep. 458; Bell v. Norfolk &c. R. Co., 101 N. C. 21; s.. c. 7 S. E. Rep. 467; Fulmer v. Williams, 122 Pa. St. 191; s. c. 1 L. R. A. 603; 46 Phila. Leg. Int. 37; 22 W. N. C. 269; 15 Atl. Rep. 726; Stephens v. Mar- tins (Pa.), 46 Phila. Leg. Int. 311; s. c. 23 W. N. C. 475; 17 Atl. Rep. 242 (no off. rep.). "Gregory v. Layton, 36 S. 0. 93; s. c. 15 S. B. Rep. 352. DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2d Ed. that, even within the limits of positive rights, it is the duty of every owner of 23roperty to exercise reasonable care in the use of it, to the end of avoiding injury to the person or property of his neighbor. In the prosecution of any lawful work upon his own premises, he may indeed make use of dangerous agencies which, unless carefully guard- ed and restrained, are liable to work injury to his neighbor. The right which the law accords him of making use of such agencies is qualified by the obligation of exercising in their use, to the end that their use shall not injure his neighbor, a degree of care commensurate with the danger which their use entails. This degree of care has been judicially expressed in varying language, — such as the greatest care in the custody of such dangerous agencies;' and clearly it is consonant with the above statement of the rule to say that, if the agency em- ployed is highly dangerous, the person employing it is bound to exer- cise great care and skill, to the end that the use of it shall not result in injury to the person or property of others.* This obligation ex- tends not only to the owner of the dangerous agent, but to all other persons who participate in its management, whether the servants of the owner or a mere volunteer." Nor does a grant of authority from the legislature to a person or corporation, to do a certain work for his or its private gain, carry with it authority to collect and use, in the prosecution of such work, materials of so dangerous a character that the collection of them is a nuisance per se, — such, for example, as explosive materials used for blasting ; and if, in consequence of collect- ing or using such materials, a third person is injured, the person or corporation will be liable to him in damages, notwithstanding he or it used and guarded such materials without negligence.' The correl- ative maxim, respondeat superior — let the superior answer, — merely expresses the conclusion of the law upon every ease governed by the preceding maxim.'' "Pittsburgh &c. R. Co. v. Shields, The application of the doctrine 47 Ohio St. 387; s. c. 8 L. R. A. 464; made by the court is very doubtful. 23 Ohio L. J. 441; 31 Cent. L. J. "McAndrews v. CoUerd, 42 N. J. 168; 8 Rail. & Corp. L. J. 171; 18 L. 189; s. c. 36 Am. Rep. 508. Wash. L. Rep. 577; 24 N. E. Rep. 'Among the many modern cases 2658. expounding and illustrating- in va- * Van Winkle v. American Steam rious situations, the maxim respondr Boiler Ins. Co., 52 N. J. L. 240; s. c. eat superior, are the following: 41 Alb. L. J. 519; 19 Ins. L. J. 952; Burke v. Anderson, 16 C. C. A. '442; 19 Atl. Rep. 472. s. c. 34 U. S. App. 132; 69 Fed. Rep. "Van Winkle v. American Steam 814; Atwood v. Chicago &c. R. Co., Boiler Ins. Co., 52 N. J. L. 240; s. c. 72 Fed. Rep. 447; Florsheim v. Dul- 41 Alb. L. J. 519; 19 Ins. L. J. 952; laghan, 58 III. App. 593; Mohr v. 19 Atl. Rep. 472. In this case a McKenzie, 60 111. App. 5.75 ; Hartman hoiler insurance company made fre- v. Muehlebac'h, S4 Mo. App 565; s. quent tests of the boiler which ex- c. 2 Mo. App. Rep. 956; Godfrey v. ploded while in the custody and un- Queens County, 89 Hun (N. Y.) 18; der the management of the insured. 635 I Tbomp. Neg.J cake of dangerous agencies. § 695. English Doctrine as to the Liability for Artificially Collect- ing upon One's Own Land Substances whicli have a Tendency to s. c. 69 N. Y. St. Rep. 24; 34 N. Y. Supp. 1052; Ahern v. Kings County, 89 Hun (N. Y.) 148; s. c. 69 N. Y. St. Rep. 104; 34 N. Y. Supp. 1023; Pitcher v. Lennon, 16 Misc. (N. Y.) 609; s. c. 38 N. Y. Supp. 1007; Crandon v. Forest County, 91 Wis. 239; s. c. 64 N. W. Rep. 847; Kuehn y. Milwaukee, 92 Wis. 263; s. c. 65 N. W. Rep. 1030; Berg V. Parsons, 156 N. Y. 109; s. c. 47 Cent. L. J. 237; 41 L. R. A. 391; 50 N. E. Rep. 957; rev'g 90 Hun (N. Y.) 267; Jackson v. Galveston &c. R. Co., 14 Tex. Civ. App. 685; s. c. 37 S. W. Rep. 786; aff'd in 90 Tex. 372; s. c. 38 S. W. Rep. 745; People V. State Canvassers, 129 N. Y. 360; s. c. 14 L. R. A. 646; 41 N. Y. St. Rep. 912; 16 N. Y. Supp. 233; 29 N. E. Rep. 345 ; Phillips v. Northern R. of N. J., 62 Hun (N. Y.) 233; s. c. 41 N. Y. St. Rep. 780; 16 N. Y. Supp. 909; Thomas v. Findlay, 6 Ohio C. C. 241; Coal Creek Min. Co. V. Davis, 90 Tenn. 711; s. c. 18 S. W. Rep. 387; Davis v. Knoxville, 90 Tenn. 599; s. c. 18 S. W. Rep. 254; Rusher v. Dallas, 83 Tex. 151; s. c. 18 S. W. Rep. 333; Bibb v. Norfolk &o. R. Co., 87 Va. 711; s. c. 47 Am. & Eng. Rail. Cas. 651; 31 Am. L. Reg. 319; 14 S. B. Rep. 163; Wey- bridge School Dist. No. 1 v. Bridge- port, 63 Vt. 383; s. c. 22 Atl. Rep. 570; Colgrove v. Smith, 102 Cal. 220; s. c. 36 Pac. Rep. 411; Denver V. Peterson, 5 Colo. App. 41; s. c;>36 Pac. Rep. 1111; Sterling v. Shiff- macher, 47 111. App. 141; Meador v. Lake Shore &c. R. Co., 138 Ind. 290; 37 N. E. Rep. 721; State v. Pitts- burgh &c. R. Co., 135 Ind. 578; s. c. 35 N. E. Rep. 700; Haehl v. Wabash R. Co., 119 Mo. 325; s. c. 24 S. W. 737; Beatrice v. Reid, 41 Neb. 214; 59 N. W. Rep. 770; Amato v. Sixth Ave. R. Co., 9 Misc. (N. Y.) 4; s. c. 59 N. Y. St. Rep. 674; s. c. 29 N. Y. Supp. 51; Hughes v. Monroe County. 79 Hun (N. Y.) 120; s. c. 61 N. Y. St. Rep. 392; 29 N. Y. Supp. 495; Higgins V. Western Union Tel. Co., 8 Misc. (N. Y.) 433; s. c. 58 N. Y. St. Rep. 392; 28 N. Y. Supp. 676; McDowell V. Homer Ramsdell Transp. Co., 78 Hun (N. Y.) 228; s. c. 60 N. Y. St. Rep. 10; 28 N. Y. Supp. 821 ; McLoughlin v. New York &c. Co., 7 Misc. (N. Y.) 119; s. c 636 57 N. Y. St. Rep. 543; 27 N. Y. Supp. 248; WoodhuU v. New York, 76 Hun (N. Y.) 390; s. c. 59 N. Y. St. Rep. 189; 28 N. Y. Supp. 120; Duggan V. Baltimore &c. R. Co., 159 Pa. St. 248; s. c. 33 W. N. C. 381; 25 Pitts. L. J. (N. S.) 13; 28 Atl. Rep. 182, 186; Givens v. Paris, 5 Tex. Civ. App. 705; s. c. 24 S. W. Rep. 974; Kansas City v. Lemen, 6 C. C. A 627; s. c. 57 Fed. Rep. 905; Donald- son v. General Public Hospital, 30 N. B. 279; Nisbet v. Atlanta, 97 Ga. 650; s. c. 25 S. E. Rep. 123; Taylor v. Owensboro, 98 Ky. 271; s. c. 17 Ky. L. Rep. 856; 32 S. W. Rep. 948; Carter v. Berlin Mills Co., 58 N. H. 52; Britton v. Atlanta &c. R. Co., 88 N. C. 538; Boatwright v. Chester &c. R. Co., 4 Pa. Super. Ct. 279; s. c 40 W. N. C. 330; 6 Del. Co. Rep. 558; Wenger v. Rohrer, 40 W. N. C. 109; 14 Lane. L. Rev. 145; Shane- werk V. Ft. Worth, 11 Tex. Civ. App. 271; s. c. 32 S. W. Rep. 918; Chi- cago &c. Iron Works v. Nagle, 80 111. App. 492 ; Hollman v. Platteville, 101 Wis. 94; s. c. 76 N. W. Rep. 1119; Smith V. Lancaster &c. R. Co., 68 L. J. Q. B. (N. S.) 51; Condict v. Jersey City, 46 N. J. L. 159; Shea V. Reems, 36 La. An. 969; Abrahams V. California Powder Co., 5 N. M. 479; s. c. 8 L. R. A. 378; 23 Pac. Rep. 783; Higgins v. Western U. Teleg. Co., 156 N. Y. 75; s. c. 30 Chic. Leg. News 326; 50 N. E. Rep. 500; rev'g 11 Misc, (N. Y.) 32; The Express, 1 U. S. App. 658; s. c. 3 C. C. A. 342; 52 Fed. Rep. 890; Rals- ler V. Oliver, 97 Ala. 710; 12 South. Rep. 238; Williams v. Fresno &c. Co., 96 Cal. 14; s. c. 30 Pac. Rep. 961; 20 Wash. L. Rep. 614; 31 Am. St. Rep. 172; Pennsylvania Co. v. Keane, 143 111. 172; s. c. 32 N. E. Rep. 260; French v. Vix, 2 Misc. (N. Y.) 212; s. c. 50 N. Y. St. Rep. 577; 30 Abb. N. Cas. 151; 21 N. Y. Supp. 1016; Brennan v. Schreiner, 28 Abb. N. Cas. 481; s. c. 20 N. Y. Supp. 130; Rucker v. Smoke, 37 S. C. 377; s. c. 16 S. E. Rep. 40; Steinhauser v. Spraul, 27 L. R. A. 441; s. c. 28 S. W. Rep. 620; aff'd in 127 Mo. 541; s. c. 30 S. W. Rep. 102; Burns v. McDonald, 57 Mo. App. 599 ; Schmidt V. Montana &c. R. Co., 15 Mont. 106; s. c. 38 Pac. Rep. 226; Knowlton v. Hoit, 67 N. H. 155; s. c. 30 Atl. Rep DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2d Ed. Escape and Get upon the Land of Another.^ — It is next proposed to consider the foregoing doctrine with reference to particular kinds of dangerous agencies and employments : and first, with reference to thos6 agencies which, from their nature, have a tendency to escape control and get upon the land of adjoining owners, there producing injury. It was held in the House of Lords, in a case which underwent great consideration, affirming the Court of Exchequer Chamber, and revers- ing the Court of Exchequer, that where the owner of land, without willfulness or negligence, uses his land in the ordinary manner of its use, he will not be liable in damages to his neighbor, although such use may occasion mischief to the latter; but that, where he brings upon his land, by artificial means, that which would not naturally come upon it, and which is in itself dangerous, and may become mis- chievous to his neighbor if not kept under proper control, he will be liable in damages to his neighbor for any mischief thereby occasioned to the latter, although, in so doing, he may act without personal will- fulness or negligence, — in other words, that he thereby makes himself liable as an insurer.^ § 696. American Doctrine on the Same Subject.'' — The American doctrine on the same subject may be formulated in the statement that one who artificially collects upon his own premises a substance which, 346; Sandford v. American Dist. 141 Pa. St. 566; s. c. 27 W. N. C. Teleg. Co., 13 Misc. 88; s. c. 68 N. 560; 21 Atl. Rep. 639; 48 PWla. Leg. Y. St. Rep. 191; 34 N. Y. Supp. 144; Int. 372.; Henry v. Pittsburgh &c. R. Higgins V. Western U. Teleg. Co., Co., 139 Pa. St. 289; s. c. 27 W. N. 11 Misc. (N. Y.) 32; s. c. 63 N. Y. C. 322; 21 Pitts. L. J. (N. S.) 287; St. Rep. 445; 31 N. Y. Supp. 841; 48 Phila. Leg. Int. 166; 21 Atl. Rep. White V. Norfolk &c. R. Co., 115 157; Whipple v. Fair Haven, 63 Vt. N. C. 631; s. c. 44 Am. St. Rep. 489; 221; s. c. 21 Atl. Rep. 533; Rogahn 20 S. E. Rep. 191; Quinn v. Kansas v. Moore Man. &c. Co., 79 Wis. 573; City &c. R. Co., 94 Tenn. 113; s. c. s. c. 19 Wash. L. Rep. 401; 48 N. W. 28 L. R. A. 552; 30 S. W. Rep. 1036; Rep. 669; Underwood v. Paine Lum- Smith V. Wilkes & McDuffie Coun- ber Co., 79 Wis. 592; s. c. 48 N. W. ties, 79 Ga. 125; s. c. 4 S. E. Rep. Rep. 673; Holmes v. Tennessee Coal 20; Brazil Block Coal Co. v. GafCney, &c. Co., 49 La. An. 1465; s. c. 22 119 Ind. 455; s. c. 44 L. R. A. 850; South. Rep. 403; Cain v. Syracuse s. c. 6 Rail. & Corp. L. J. 152; 21 &c. R. Co., 20 Misc. (N. Y.) 459; N. B. Rep. 1102; Fire Ins. Patrol v. s. c. 45 N. Y. Supp. 538. Boyd, 120 Pa. St. 624; s. c. 1 L. R a This section is cited in |§ 523, A. 416; 6 Am. St. Rep. 745; 38 Alb. 697, 701, 703, 705, 711, 762, 764, 766, L. J. 431; 22 W. N. C. 248; 15 Atl. 796, 798, 799, 1037. Rep. 553; Ford v. Kendall School 'Rylands v. Fletcher, L. R. 3 H. Dist, 121 Pa. St. 543; s. c. 1 L. R L. 330; affirming s. c. sub nom. A. 607; 45 Phila. Leg. Int. 475; 19 Fletcher v. Rylands, L. R. 1 Ex. Pitts. L. J. (N. S.) 375; 21 Ohio L. 265; reversing s. c. 3 Hurl. & Colt. J. 7; 22 W. N. C. 346; 15 Atl. Rep. 774. The case is reprinted, accord- 812; McNulta v. Lockbridge, 137 111. ing to the report in the different 270; s. c. 27 N. E. Rep. 452; aff'g 32 courts above named, in 1 Thomp 111. App. 36; O'Brien v. New York, Neg., 1st ed., p. 2. 15 N. Y. Supp. 520; Eisenbrey v. b This section is cited in § 801. Pennsylvania Co. for Ins. on Lives, 637 1 Thonip. Neg.] care of dangerous agencies. from its nature, is liable to escape and cause mischief to others, must use reasonable care to restrain it, and is answerable for any damage occasioned to others through its escape from a want of such care." § 697. Illustration in the Case of Water Artificially Collected upon One's Own Land. — In the celebrated case just referred to,^" A. was the lessee of certain mines. B. was the owner of a mill standing on land adjoining that under which the mines were worked. B. desired to construct a reservoir, and employed competent persons — an engineer and a contractor — to construct it. A. had worked his mines up to a spot where there were certain old passages of disused mines; these passages were connected with vertical shafts which communicated with the land above, and which had also been out of use for years, and were apparently filled with marl and the earth of the surrounding land. No care was taken by the engineer or the contractor to block up these shafts ; and shortly after water had been introduced into the reservoir, it broke through some of the shafts, flowed through the old passage, and flooded A.'s mine. It was held by the Court of Exchequer, that A. was not entitled to recover damages from B. in respect of this injury ; but it was held, by the Court of Exchequer Chamber, reversing the Court of Exchequer, and by the House of Lords, affirming the Court of Exchequer Chamber, that it was a case for the recovery of damages. The doctrine of this case was applied in a case determined in the English Court of Exchequer in 1872, upon the following facts: The defendants' mines adjoined and communicated with the plaintiff's, and in the surface of the defendants' lands were certain hollows and openings, partly caused by and partly made to facilitate the defend- ants' workings. Across the surface of their lands there ran a water- course. In November, 1871, the banks of the watercourse (which were sufficient for all ordinary occasions) burst, in consequence of ex- ceptionally heavy rains, and the water escaped into and accumulated in the hollows and openings, where the rains had already caused an unusual amount of water to collect, and thence, by fissures and cracks, water passed into the defendants', and so into the plaintiff's mines. If the land had been in its natural condition, the water would have spread itself over the surface, and have been innocuous. The defend- ants were not guilty of any actual negligence in the management of their mines. In an action by the plaintiff to recover the damage he had sustained, the court held, on the principle of Rylands v. Fletcher, that the defendants were liable, although they were not guilty of any » Defiance Water Co. V. Olinger, 54 35 Ohio L. J. 350; 44 N. B. Rep. Ohio St. 532; s. c. 32 L. R. A. 736; 238. ^'Ante, § 695. 638 DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2d Ed personal negligence, and although the accident arose from exceptional causes. ^^ § 698. Illustration in the Case of Sewage Escaping into the Cellar of a Neighbor. — Applying the same doctrine, it was held in the Eng- lish Common Pleas Division, in 1887, that an occupier of premises, whose sewage escapes into the cellar of his neighbor in consequence of the sewer being out of repair, must pay damages, although he has not been guilty of negligence.^^ § 699. Illustration in the Case of Injury to Cattle from Noxious Trees. — Again, applying the same rule in a case decided in the English Court of Appeal, in 1878, it was held that if a man knowingly plant in his own land, and suffer to grow over the land of his neighbor, a noxious tree, by which his neighbor's cattle are injured, an action will lie against him at the suit of such neighbor. The material facts of this case were as follows: The defendants, some seventeen years ago, obtained a piece of land for the purposes of their cemetery, and fenced it round with a dwarf wall, in which, at two places, there were open- ings filled up with iron railings about two feet high. Where these railings occurred, the defendants planted two yew trees, at a distance of about four feet from the railing. These grew through and beyond the railings, so as to project over an adjoining meadow. The plaint- iff, two years before the alleged cause of action, hired this meadow to pasture his horses, for a term of three years. After the plaintiff had occupied the field for two years, his horse, which was feeding in the meadow, ate of that portion of the yew tree which projected over the field, the walls and rails not being sufficiently high to prevent a horse "Fletcher v. Smitb, L. A. 7 Ex. convenience he does something, — 305; s. c. affirmed 2 App. Cas. 781. e. g., diverts the course of a The opinion of the Court of Ex stream, — he must take care that the chequer, delivered by Bramwell, B., new course provided for it shall be is given in full in 1 Thomp. Neg., sufficient to prevent mischief from 1st ed., pp. 78, 79, 80. The doctrine an overflow; so that, even if that of the House of Lords, affirming the overflow should be directly and Court of Exchequer, is thus stated mainly occasioned by an act of na- in the reporter's head note (2 App. ture, his own conduct in not so Cas. 781) : "A mine owner will not forming the new and diverted be liable to the owner of an adja- course for the stream, of form and cent mine for injury occasioned to of sufficient capacity to carry off an such adjacent mine, where such in- accidental overflow of water, even jury proceeds from natural causes of an exceptional kind, will be mat- in themselves beyond his control, ter for consideration in determining though his own acts may have con- the question of his liability." duced to produce the injury, if his '^ Humphreys v. Cousins, 2 C. P. acts have only been those of the Div. 239. The opinion of the court, proper and ordinary working of his delivered by Denman, J., is set out own mine, without default or neg- in full in 1 Thomp. Neg., 1st ed., pp. ligence. But where for his own 80, 81, 82, 83. 639 1 Thomp. Neg.] care of dangerous agencies. from so eating, and died from the effects of the poison contained in what he ate.^' § 700. English Eule not Applicable to those Extraordinary Floods Attributable to the "Act of God."a— It is perceived that the doctrine of the foregoing cases places the liability of the land-owner collecting the dangerous substances on his land, upon the footing of an insurer. In this regard his liability is assimilated to that of a common carrier of goods, under the principles of the common law. Carrying out this analogy, a decision rendered in the English Court of Exchequer in 1875, and affirmed in the Court of Appeal in 1876, holds that the land- owner is not liable where the dangerous substance, which he has col- lected upon his land, escapes in consequence of an extraordinary action of the elements, such as the theory of the old law attributes to a vis major or the "act of G-od." The case was an action brought by a county surveyor, under 43 Geo. III., c. 59, § 4, against the defendant, to recover damages on account of the destruction of four county bridges, which had been carried away by the bursting of some reser- voirs. At the trial, before Cockburn, C. J., it appeared that the de- fendant was the owner of a series of artificial ornamental lakes, which had existed for a great number of years, and had never, previous to the eighteenth day of June, 1872, caused any damage. On that day, however, after an unusual fall of rain, the lakes overflowed, the dams at their end gave way, and the water out of the lakes carried away the county bridges, lower down the stream. The jury found that there was no negligence either in the construction or the maintenance of the reservoirs, but that, if the flood could have been anticipated, the effect might have been prevented. Upon this finding, judgment was ren- dered for the defendant in the Court of Exchequer, and affirmed in the Court of Appeal.^* § 701. English Rule not Applicable where the Water Breaks Loose in Consequence of the Act of a Third Person. — A decision ren- dered in the English Exchequer Division in 1879, engrafts the further exception upon the rule in Rylands v. Fletcher, '^^ that the person col- lecting upon his land a quantity of water is not responsible for dam- ages resulting to another person from the breaking loose of such water, '=Crowhurst v. Amersliam Burial T. (N. S.) 265; 2 Cent. L. J. 523; Board, 4 Ex. Div. 5; s. c. 27 Week, on appeal, 2 Exch. Dlv. 1; 46 L. J. Rep. 95; 7 Cent. L. J. 465; 18 Alb. 174; 4 Cent. L. J. 319. The opinions L. J. 514. in both courts will be found in 1 a This section is cited in § 710. Thomp. Neg., 1st ed., pp. 86-89. "Nichols V. Marsland, L. R. 10 Ex. ^^ Ante, § 695; vost, §§ 706, 707. 255; s. c. 23 Week. Rep. 693; 33 u. 640 DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2d Ed. in consequence of the act of a third person over whom the land-owner collecting the water has no control. In that case the defendants were the owners and occupiers of a cloth-mill, for the necessary supply of water to which there was a reservoir, also belonging to them. The mill and reservoir had been built and used as such and in the same manner for many years. The plaintiff was tenant of the premises adjoining the mill. The reservoir was supplied with water from a main drain or watercourse which passed by the reservoir. There was an inlet and also an outlet, at both of which there were proper doors or sluices, so as (when required) to close the communications between the reservoir and the main drain. The defendants had a right to use the main drain for obtaining water for the reservoir, and also for car- rying off their surplus water, but had otherwise no control over the main drain, which did not belong to them. In December, 1877, the plaintiff's premises were flooded by the overflowing of the defendants' reservoir. The overflowing was caused by the emptying of a large quantity of water from a reservoir, the property of a third person, into the main drain, at a point considerably above the defendants' premises, by an obstruction at a point in the main drain, below the defendants' reservoir, whereby the water was forced back through the doors or sluices of the reservoir (which were closed at the time), and caused the reservoir to overflow on to the plaintiff's premises. The obstruction was caused by circumstances over which the defendants had no control, and without their laiowledge ; and had it not been for such obstruction, the overflowing of the reservoir would not have happened. The doors or sluices between the main drain and the reservoir were constructed and maintained in a proper manner, so as to prevent the overflowing of the reservoir under all ordinary circumstances, and no negligence or wrongful act was attributable to either party. Damages were admitted to be £75. The County Court judge decided that the defendants were liable, and gave judgment in the plaintiff's favor for £75. The question for the opinion of the court was whether the de- fendants were, under these circumstances, liable. The court held that the defendants were not liable, without reference to the question whether the act which caused the water to break loose was to be sailed a vis major, or the wrongful act of a third party. The governing consideration was that it was not the act of the defendant, but the act of a party over whom he had no control, and that the defendant had done no wrong. ^^ " Box V. Jubb, 4 Ex. Div. 76 ; s. c. Kelly, C. B., and Pollock, B., are 27 "Week. Rep. 415; 8 Cent L. J. 289. copied in 1 Thomp. Neg., 1st ed., 90. The brief opinions delivered by VOL. 1 THOMP. NEG. 41 641 1 Thomp. Neg.] care of dangerous agencies. § 702. English Rule not Applicable as between Tenants of Differ- ent Floors of the Same Building.^ — Another limitation upon the doc- trine of Rylands v. Fletcher was made in the Queen's Bench in 1873, where it was held that the doctrine of that case was not applicable, as between tenants of different floors of the same building, so as to charge the tenant of the upper floor with a liability in favor of the tenant of the lower floor, for the escape of water from a water-closet on the upper floor, in the absence of negligence on the part of the tenant in using the same. It was found that he had made no altera- tions in it, but that it became stopped up and overflooded through an accidental circumstance not imputable to him as negligence. The court exonerated him upon the ground that he had not artificially colletted a quantity of water upon his own premises, within the sense of the rule in Rylands v. Fletcher, but that he had received such premises from his landlord as he found them, and had not been guilty of any negligence in altering them, in failing to repair them, or in using them.^^ In like manner, where the plaintiff occupied the ground floor of a warehouse, and the defendant the upper part, and water from the roof was collected by gutters into a box, from which it was discharged by a pipe into the drains, and a rat made a hole in the box, through which the water escaped, injuring the plaintiff's goods in the warehouse below, — it was held that the defendant was not liable for the damage, he being guilty of no negligence. The case pro- ceeded in part upon the ground that the drain-pipe was for the benefit of both tenants, and that it was hence not a case where the upper tenant artificially collected water upon his premises for his own exclu- sive purposes.^ ^ Eecalling that the American doctrine generally rests upon the theory of negligence,^^ we find that it has been held that a tenant of a room through the floor of which water has leaked, to the injury of a tenant below, has been exonerated from liability where no defect existed in the faucet, and where the evidence was that the faucet was left running, not by the defendant or his servants, but by some one else — probably a trespasser or a subtenant.^" § 703. Other English Cases Limiting the Doctrine of Rylands v. Fletcher. — Still other English cases are found limiting the rule in a This section is cited in § 708. (N. Y.) 318; s. c. 63 N. Y. St. Rep. "Ross V. Fedden, L. R. 7 Q. B. 500; 31 N. Y. Supp. 185. For a case 661; stated In full, with the opin- where the escape of water to the ions of the judges, in 1 Thomp. Neg., lower floor was held to be due to 3st ed., pp. 91-93. defects in the plumbing between the " Carstairs v. Taylor, L. R. 6 Ex. two floors, of which the occupant of 217. the upper floor had no notice, — see "jlwte, § 696; post, §§ 706, 707. Lane v. Scagle, 67 Vt. 281; s. c. 31 =» Spencer v. McManus, 82 Huh Atl. Rep. 289.. 642 DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2d Ed. Rylands v. Fletcher.^^ In one of them a statement of a claim alleged that the surface of the defendants' land had been artificially raised by earth placed thereon, and that, in consequence, rain-water falling on the defendants' land made its way through the defendants' wall into the adjoining house of the plaintifE, and caused substantial damage. It was held, upon demurrer, that the statement of claim disclosed a good cause of action.^^ In another case,^^ a water-works company had a main in a turnpike. An adjoining occupier employed a con- tractor to make a tunnel through the turnpike. In consequence of a leak in the main, his work was delayed and his contract rendered less profitable. It was held that he could not recover damages against the company, whatever may have been the rights of the proprietor for whom he was doing the work. In a very elaborate judgment rendered in the Queen's Bench in 1872, it was held that a water-works company maintaining a canal was not liable for the escape of water through the soil beneath the canal and the flooding of a subjstcent mine, in the ab- sence of negligence, under the principles of the common law, though it might be liable to make compensation under its governing statute.^* § 704. The Value of Rylands v. Fletcher. — From the foregoing cases it will be seen that Rylands v. Fletcher has been several times either distinguished or limited by the English courts, and that it has been doubted and denied in this country. Other American cases could be cited where its doctrine has been impeached. In Garland v. Towne,^^ Ladd, J., said that he was not aware that any court in this country had gone so far. In Marshall v. Welwood,^^ determined in the Supreme Court of New Jersey, in 1876, it was criticised by Beas- ley, C. J., in forcible language. The question was, whether the owner of a steam-ioiler, which he kept and used on his own premises, was re- sponsible, in the absence of negligence, for damages to an adjacent property owner, in the absence of negligence. It was held that he was not. The opinion is characterized by an exceptionally clear and ac- curate statement of the principles and analogies of the common law applicable to the subject under consideration.^^ It is perceived that no distinction can be drawn on principle between the ease of the escape of a quantity of water artificially collected on one's own land and the explosion of a steam-boiler; since both water and steam are, " Ante, § 695. Co., L. R. 7 Q. B. 244 (affirmed in ^Hurdman v. The North-Eastern Bxch. Cham., L. R. 8 Q. B. 42; L. R. Co., 3 C. P. Div. 168. J. (Q. B.) 34). ^ Cattle V. Stockton Water Works, ^ 55 N. H. 57. L. R. 10 Q. B. 453. The opinion of "»38 N. J. L. 339. Blackburn, J., is copied at length in " The opinion is set out in 1 1 Thomp. Neg., 1st ed.. 94, 95. Thomp. Neg., 1st ed., 96-99. " Dunn V. Birmingham Canal Nav. 643 1 Thomp. Neg.] care of dangerous agencies. from their nature, constantly pressing outward and endeavoring to escape confinement; and any distinction founded on the suggestion that one substance is a liquid and the other is a gas, and that one is pressing outward by reason of gravitation and the other by reason of the expansive power of heat, would be absurd. We shall see that the doctrine of Rylands v. Fletcher is generally denied in relation to lia- bility for the explosion of steam-boilers.^^ § 705. Doctrine of Eylands v. Fletcher followed in Some American Courts.'^ — On the other hand, the Supreme Judicial Court of Massa- chusetts has applied the rule in Rylands v. Fletcher to the case of the proprietor of a building suffering snow and ice to accumulate on its roof in such quantities that it slid ofE, injuring a traveller.-" But this application of it was obviously misconceived, since snow and ice, ac- cumulated on one's roof by the natural action of the weather, can not be treated as a dangerous substance which one has artificially collected on his land for his own purpose.^" The same court has, moreover, following Rylands v. Fletcher, Baird v. Williamson, ^'^ and Tenant v. Golding,^^ held that, "to suffer filthy water from a vault to percolate or filter through the soil into the land of a contiguous proprietor, to the injury of his well and cellar, where it is done habitually, and to the knowledge of the party who maintains the vault, whether it passes above ground or below, is of itself an actionable tort." "Under such circumstances," say the court, "the reasonable precaution which the law requires is, effectually to exclude the filth from the neighbor's land ; and not to do so is of itself negligence." It was, therefore, held proper, in a case where there was no pretense of unavoidable accident, for the judge to tell the jury that "the defendant was bound so to con- struct his vault that the contents thereof should not percolate through the plaintiff's cellar and well, and, it being conceded that percolations did pass through, to the plaintiff's injury, such percolations were evidence of negligence, upon which the plaintiff was entitled to a ver- dict."^ ^ The same court, reaffirming the doctrine of Rylands v. Fletcher, has lately applied it to a case where a wall, built by one per- son on his own land, falls upon the land of his neighbor, doing dam- age. In this case. Gray, C. J., is reported to have said: "An owner of land has the same duty to keep on his own land a house or wall built thereon, as the filth in his cesspool, or the water in his reservoir, '^Post, §§ 762, 763. ='15 C. B. (N. S.) 376. a This section Is cited in § 708. == 1 Sallt. 21; s. c. sm& worn. Tenant =" Shipley v. Fifty Associates, 101 v. Goldwin, 1 Salk. 360; 2 Ld. Raym. Mass. 251. 1089; 6 Modern 311. =• Garland v. Towne, 55 N. H. 57, "' Ball v. Nye, 99 Mass. 582. per Ladd, J. 644 DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2(1 Ed. or the snow upon his roof. His duty is, in the words of Baron Parke, 'to keep it in such a state that his neighbor may not be injured by its fall.'^* The present case does not require us to decide whether it is more accurate to say that it is not a question of negligence, and that the defendant is liable even in the case of latent defect, or to say that the fall of the wall, in the absence of proof of inevitable accident, or of the wrongful act of third persons, is sufficient evidence of negli- gence."^^ The doctrine of Bylands v. Fletclier^^ has also been fol- lowed and applied in a conspicuous ease in ilinnesota, where the de- fendants, for certain purposes of their own, dug a tunnel through Hennepin Island, from a point above to a point below the Palls of St. Anthony. The water burst through it with great violence, tearing it a-ivay, and injuring property belonging to the plaintiff. It was held that the defendants were liable, irrespective of any proof of negligence or unskill fulness in the construction or maintenance of the tunnel; irrespective of the fact that they did not own the soil through which it was dug ; and irrespective of the fact that they were not the owners of the tunnel at the time of the injury,^'' since if they were responsible for the consequences of the excavation, they could not evade them by giving up possession to others.^* This case may be made to rest upon the consideration that the injury complained of was the result of an untried and hazardous experiment with a dangerous agent, the conse- quences of which ordinary engineering skill could not foresee. The Supreme Judicial Court of Massachusetts have held, without reference to the question of negligence, that one who accumulates water arti- ficially on his own land is liable for injuries resulting to adjoining land from percolations through the soil, caused by the pressure of the accumulated mass, or from the obstruction, by that cause, of the nat- ural passage of water through the soil.^® So, the Court of Appeals of New York has held, upon a careful examination of the authorities,*" "Citing Chauntler v. Robinsoni, 4 340; Washb. on Ease. 259; 3 Kent's Exch. 163, 170; Tarry v. Ashton, 1 Comm. 439, 440; Rex v. TrafCord, 1 Q. B. Div. 314; Bower v. Peate, 1 Q. Barn. & Adol. 874; Brown v. Cayuga B. Div. 321. &c. R. Co., 12 N. Y. 486; Williams v. ==Gorham v. Gross, 125 Mass. 232; Nelson, 23 Pick. (Mass.) 142; Rad- s. c. 6 Reporter 459. cliff's Executors v. Brooklyn, 4 N. ^'Ante, § 695. Y. 195; Tremain v. Cohoes Co., 2 N. "Cahill v. Eastman, 18 Minn. 324. Y. 163; s. c. 1 Thomp. Neg., 1st ed.. And see St. Anthony Falls Water p. 76; Hay v. Cohoes Co., 2 N. Y. Power Co. v. Eastman, 20 Minn. 277. 159; s. c. 1 Thomp. Neg., 1st ed., p. ^ Eastman V. Amoskeag Co., 44 N. 72; Bellinger v. New York &c. R. H. 143. Co., 23 N. Y. 47; New York v. Bailey, "Wilson V. New Bedford, 108 2 Denio (N. Y.) 433; China v. South- Mass. 261. The reasoning of the wick, 12 Me. 238; Tyler v. Wilkin- court in its opinion, delivered by son, 4 Mason (U. S.) 400; Merritt Chapman, J., is quoted at length in v. Brinkerhoff, 1 Johns. (N. Y.) 306; 1 Thomp. Neg., 1st ed., 103, 104. Smith v. Agawam Canal Co., 2 Al- "Ang. on Watercourses, §§ 330, len (Mass.) 355; Monongahela Nav. 645 1 Thomp. Neg.J care op dangerous agencies. that if by raising the water in a natural stream above its natural banks, and to prevent its overflow artificial embankments are con- structed which answer the purpose perfectly, but which nevertheless produce such a pressure upon the natural banks of the stream that per- colation takes place to such an extent as to drown the lands of an adja- cent proprietor, an action will lie for the damage thus occasioned.*' In conformity with this view, and with the law as laid down in Tenant V. Golding,^^ the same court has lately held that a person who had paved his yard, thus causing the water to accumulate, — the soil being thus rendered less penetrable, — and who had conducted from the roofs of his houses into his privy, in leaders and drains, a quantity of water beyond the capacity of his drains to carry away, must pay damages to an adjacent property-owner for any injury done by the escape of such water, irrespective of any question of negligence.*^ In like manner it has been held that, although a land-owner will not be held responsible for the effect of water flowing over the plaintiff's lot in consequence of the natural formation of the soil, yet if the volume of water on his land has been greatly augmented by the lawful cutting off of a drain and culvert by other lot-owners over whose lots it passed, and by the filling in of adjacent sunken lots by their owners, this will impose an obligation upon such a land-owner to adopt reasonable measures to prevent the water from thus accumulating on his land to the injury of a neighbor, and he will not be discharged of this duty by the fact that the water thus accumulated is in some degree augmented by the act of such neighbor in ^so constructing the roofs of his buildings as to east water on to it.** Upon like grounds it has been held, upon the principle of Hay v. The Cohoes Company/^ — a principle declared to be elementary, — that if a canal company, in enlarging its canal, flood the lands of an adjacent owner, it must pay damages, although it has Co. V. Coon, 6 Pa. St. 379; Acton v. right to relieve his own land from Blundell, 12 Mee. & W. 324; Roath standing water, or prevent its ac- V. Driscoll, 20 Conn. 533; Martin v. cumulation thereon, by discharging Riddle, 26 Pa. St. 415, n.; Broadbent it through ditches or drains upon V. Ramsbotham, 34 Eng. Law & Eq. the land of his neighbor. Bellows 553; Rawstron v. Taylor, 33 Eng. v. Sackett, 15 Barb. (N. Y.) 96; 'Ijaw & Eq. 428; Goodale v. Tuttle, Foot v. Bronson, 4 Lans. (N. Y.) 47. 29 N. Y. 459; Chatfield v. Wilson, 28 Compare Rawstron v. Taylor, 11 Vt. 49; Chasemore v. Richards, 7 H. Exch. 369; Goodale v. Tuttle, 29 N. L. Cas. 349; Dickinson v. Canal Co., Y. 459; Woffle v. New York Central 7 Exch. 282; Cooper v. Barber, 3 R. Co., 3 Alb. L. J. 131; Broadbent Taun. 99; Earl v. De Hart, 12 N. J. v. Ramsbotham, 11 Exch. 602; East- Bq. 280. erbrook v. Erie R. Co., 51 Barb. (N. « Pixley V. Clark, 35 N. Y. 520. Y.) 94. *=1 Salk. 21. "Thomas v. Kenyon, 1 Daly (N. «Jutte V. Hughes, 67 N. Y. 267 Y.) 132. (reversing s. c. 8 Jones & Sp. (N. ""2 N. Y. 159; s. c. 1 Thomp. Neg., Y.) 126). So, no person has the 1st ed., p. 72. 646 DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2d Ed. prosecuted its work with care and skill ; nor is such proprietor limited to the remedy for the assessing of such damages pointed out in the charter of the canal company, as for the taking of private property for public use, but he may bring an ordinary action therefor.** So, it has been held in the same State that a statute authorizing one to build a dam upon his own land, upon a creek or river which is a public highway, merely protects him from an indictment for a nuisance. If in doing this he flow his neighbor's land, he is liable to an action, even though the statute provide a summary mode of appraising and paying the damages arising from such a consequence.*^ § 706. But the American Doctrine Decisively Against that Case in Respect of Liability for Escape of Water. ^ — Where water is collected in reservoirs, behind dams, in canals or in ditches, in the ordinary manner for the purpose of being used as a motive power, in naviga- tion, in irrigation, in mining, or for any other convenient and lawful end, the rule, in reason and according to the decisive weight of Amer- ican judicial opinion, is different. There is nothing unlawful in col- ■ lecting water for such purposes ; and hence, in case it escapes and does mischief, the person so collecting it can only be held liable on the ground of something unlawful in the manner in which he has built or maintained his structure, — that is, on the principle of negligence. For damages occurring from those extraordinary floods, or other causes, which are attributed to the act of God, and can not ordinarily be foreseen or prevented, there would, of course, be no liability.*^ "Selden v. Delaware & Hudson (Mass.) 177; Campbell v. Bear Canal Co., 24 Barb. (N. Y.) 362 River Co., 35 Cal. 679. See Brook- ( affirmed in 29 N. Y. 634). To the field v. Walker, 100 Mass. 94; Proc- same principle, see Bradley v. New tor v. Jennings, 6 Nev. 83; Wendell York &c. R. Co., 21 Conn. 294. v. Pratt, 12 Allen (Mass.) 464; Oak- " Crittenden v. Wilson, 5 Cow. (N. ham v. Holbrook, 11 Cush. 299. This Y.) 165. is well illustrated by a case where a This section is cited in § 701. A. erected a dam at the outlet of a '' Nichols V. Marsland, L. R. 10 pond, and thereby raised a head of Exch. 255; 2 Exch. Div. 1; s. c. 1 water, but not so high as to over- Thomp. Neg., 1st. ed., 86; China flow or injure a bridge at the head V. Southwick, 12 Me. 238; Bell of the pond, belonging to B. A v. McClintock, 9 Watts (Pa.) number of years afterwards, in con- 119; Lehigh Bridge Co. v. Lehigh sequence of great rains and a vio- Coal & Nav. Co., 4 Rawle (Pa.) 9; lent wind, the waters were thrown Everett v. Hydraulic Flume Tunnel upon the bridge, and it was de- Co.. 23 Cal. 225; Hoffman v. Tuo- stroyed. It was held that A. was lumne Water Co., 10 Cal. 413; Wolf not liable to pay damages to B., for, v. St. Louis &c. Water Co., 10 Cal. "if there had been no dam, the in- 541; Lapham v. Curtis, 5 Vt. 371; jury might not have happened; but Higgins V. Chesapeake &c. Canal the defendant had a right to erect Co., 3 Harr. (Del.) 411; Morris it, and that without being responsi- Canal Co. v. Ryerson, 27 N. J. L. ble for remote and unforeseen con- 457; Tenney v. Miners' Ditch Co., 7 sequences." China v. Southwick, 12 Cal. 335; Richardson v. Kier, 34 Cal. Me. 238. 63; Shrewsbury v. Smith, 12 Cush. 647 1 Thomp Neg.J caee of dangerous agencies. Stated in another wa}', the concurrence of negligence on the part of the owner or keeper of such a structure with the act of Providence is necessary to fix his liability." It follows, therefore, that if a dam breaks away, to the injury of property below, the owner will not be liable unless the person injured can show negligence ; and if it appear in proof that the da,m was well and properly built, upon a proper model, he will not be liable merely from the fact that it gave way;'" but otherwise, if it broke away in consequence of having been im- properly constructed, or maintained in an unsafe condition. °^ § 707. Rule of Diligence in Restraining Water is Ordinary Care.'' — The rule of diligence which the law puts upon an owner or occupier of land in restraining water artificially collected thereon is the rule described as ordinary or reasonable care: and here, as in other cases, ^^ this rule of care varies in proportion to the danger likely to accrue to others from the escape of water. It may be discharged by slight attention in s'ome cases, and it may require the most exacting and unremitting attention, care and skill in others. The rule of dili- gence here exacted is, as in other cases, ordinary care which men em- ploy where the risk is their own f^ the proprietor of such a structure is not held to the diligence of "a very prudent man" but to that which ordinarily prudent men display where the risk is their own.^* Apply- ing the same rule, it is held error to tell the jury that if the defend- ants could have constructed the dam in a letter and more substantial manner, so as to prevent its breaMng, they will be liable. '^ Upon like ground, it has been held that if a person artificially accumulates a large quantity of water in a reservoir, and then releases it, so that it flows down its natural channel with such violence as to injure other inferior proprietors, his liability will depend upon whether the accu- mulations were lawful, and, if lawful, whether such person exercised ordinary care and prudence in releasing it. If it were lawfully accu- mulated, and let out with ordinary care, he would not be liable ; if un- lawfully accumulated, he would release it at his peril, and would be responsible for the consequent damages on account of his wrongful act.'*' It will be no defense that the volume of water thus released did *' Lehigh Bridge Co. v. Lehigh ''Lapham v. Curtis, 5 Vt. 371; Coal & Nav. Co., 9 Rawle (Pa.) 9, Bailey v. New York, 3 Hill (N. Y.) 24; Bell v. McClintock, 9 Watts 531; Todd v. Cochell, 17 Cal. 97. (Pa.) 120. "Wolf v. St. Louis &c. Water Co., "Livingston v. Adams, 8 Cow. (N. 10 Cal. 541. Y.) 175; Everett V. Hydraulic Plume == Hoffman v. Tuolumne Water Tunnel Co., 23 Cal. 225. Co., 10 Cal. 413. " PoUett V. Long, 56 N. Y. 200. ™ Frye v. Moor, 53 Me. 583. Com- a Ttis section is cited in § 701. pare Noyee v. Shepherd, 30 Me. 173. "Ante, § 25. 648 DANGEROUS THINGS ARTIFICIALLY COLLECTED. ['2d Ed. not exceed in magnitude some of the accumulations of water arising from natural causes, provided the property injured would have with- stood the pressure of natural freshets.'^^ Nor would the fact that the property of a person was in imminent danger from an accumulation of water in a reservoir justify him in failing to use ordinary care to preserve the property of others, in releasing the water ; but what would be ordinary care under such circumstances might well be different from the degree of caution and prudence required where no danger is pending.^* For this rule of ordinary care exacts here, as in other cases, a degree of vigilance, attention, and skill in proportion to the probabilities of danger. °'' In an action for damages caused by the breaking away of a dam, it will not do for the owner to say that he built it strong enough to resist ordinary freshets; he must build it strong enough to resist those extraordinary freshets which sometimes occur, and which are therefore reasonably to be anticipated.^" § 708. Liability for Escape of Water, How Affected by Relation of Landlord and Tenant. — AVhere water escapes from a portion of de- mised premises in possession of the landlord upon that portion in possession of his tenant, injuring the latter; or where it escapes from a portion of demised premises in the possession of one tenant upon a portion of such premises in the possession of another tenant, injuring the latter; — in both of these cases according to the American doc- trine, and in the second of them according to the English doctrine,^^ — the party from whose premises the water escaped will be liable only in case of negligence, and will not stand liable as an insurer under the doctrine of Rylands v. Fletcher.^^ The tenant of the lower portion of a building, the landlord reserving control over the roof, may maintain an action against the landlord for an injury to his goods, sustained by water descending upon them from the roof, if the injury happened "Frye v. Moor, 53 Me. 583. seen, ante, § 705) acquired a foot- ™Noyes v. Shepherd, 30 Me. 173. hold: Schwab v. Cleveland, 28 Hun ■"'Wolf V. St. Louis &c. Water Co., (N. Y.) 458. But in that State, ac- 10 Cal. 544. cording to a decision of Pryor, J., " New York v. Bailey, 2 Denio in the Court of Common Pleas, an (N. Y.) 433; Hoffman v. Tuolumne action for damages fro i the negli- Water Co., 10 Cal. 413, per Baldwin, gent escape of water from one story J.; Gray v. Harris, 107 Mass. 492. of a building to another, can not "^ Ante, § 702. be maintained when defendants are "^ Bernhard v. Reeves, 6 Wash, not the only occupants of the prem- 424; s. c. 33 Pac. Rep. 873 (semile) ; ises from which the water escaped, Inman v. Potter, 18 R. I. Ill; s. c. and there is no proof that others had 25 Atl. Rep. 912. This statement of no access to the faucets from which the text ought to be qualified by the escape took place: Denton v. saying that the contrary has been Kernochan, 37 N. Y. St. Rep. 510; held in New York, where the rule 13 N. Y. Supp. 889. See also Moore in Rylands v. Fletcher (as already v. Goedel, 34 N. Y. 527. 649 1 Thomp. Neg.J care op dangerous agencies. through the negligence of the landlord in not keeping the roof in re- pair.°^ As between different tenants under a common landlord, the question of liability for injuries arising from the condition of the premises is said to be always one of negligence in their use. Accord- ingly, it has been held that the tenant of the second floor of a build- ing, not being guilty of negligence or malfeasance, was not responsible for damages caused to the tenant of the lower floor by water escaping from a reservoir of Croton water, built upon the second floor, in con- sequence of its being suffered to get out of order.''* In such a case, the rule is said to be this : "Negligence is the foundation of the ac- tion. If the injury result from the negligence of the owner, either in constructing or upholding the freehold, he is responsible; but he is not, in general, responsible for the negligence of the tenant in the use of it. If it result from the negligence of the tenant in any manner, he is liable. Both landlor'd and tenant may be liable for the same in- jury, — the landlord for the negligent construction, and the tenant for the negligent use of the premises so negligently constructed."*^ § 709. liability for Escape of "Water Into Subjacent Mines. — The owner of a mine at a higher level than an adjoining mine has a right to work the whole of his mine, in the usual and proper manner, for the purpose of getting out the minerals in any part of his mine ; and if he so conduct his works, he will not be liable for damages caused by water which flows by gravitation into such adjoining mine. For damages thus accruing, such mine-owner can only be made liable on proof of negligence. "^ But the rule stops here. The occupier of the higher mine has no right to be an active agent in sending water into the lower mine ; nor is the occupier of the lower mine subject to the servi- tude of receiving water conducted by man from the higher mine. "Each mine-owner has all the rights of property in his mine, and among them the right to get all minerals therefrom, provided he works with skill, and in the usual manner. And if, while the occupier of the higher mine exercises that right, nature causes water to flow to a lower mine, he is not responsible for this operation of nature. If the owner of the lower mine intends to guard against this operation, he must leave a barrier at the upper part of his mine to keep back the water of his higher neighbor. The law imposing these regulations for the enjoyment of somewhat conflicting interests does not authorize the «^ Toole v. Beckett, 67 Me. 544. "Eakin v. Brown, 1 E. D. Smith Compare Priest v. Nichols, 116 Mass. (N. Y.) 36. 401; Kirby v. Boylston Market °^ Ibid., per Woodruff, J. Assn., 14 Gray (Mass.) 249; Gray "Smith v. Kenrick, 7 C. B. 515; V. Boston Gas Light Co., 114 Mass. Baird v. Williamson, 15 C. B. (N. 149; Norcross v. Thoms, 51 Me. 503. S.) 376. 650 DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2d Ed. occupier of the higher mine to interfere with the gravitation of the water, so as to make it more injurious to the lower mine or advan- tageous to himself.'"*^ Accordingly, if A. and B. own adjacent mines, and A. knocks down the barrier of coal between them, so that water pours in from his mine and floods the mine of B., he must pay dam- ages to B.*^ So, recurring to the principle that damage caused by the negligent or improper exercise of the powers conferred by an act of the legislature may be the subject of an action, we find that it has been held, after much consideration, that if a railway company so negligently construct and maintain their road that water will pene- trate therefrom into a mine below, which would not have got there but for such negligence, they must pay damages to the subjacent mine- owner. ^° § 710. Other Questions of Liability for Escape of Water. — It has been held in Massachusetts, that where one properly and lawfully opened a covered drain on his own land, and it became his duty to close it again in order to prevent the water from setting back and over- flowing the adjoining land, he is bound to use ordinary care and pru- dence in closing such drain; and if he did so, he was not responsible for any damage caused to his neighbor's land by its overflow.'"' The case was referred to the well-settled principle that where one does a lawful act upon his own premises, he can not be held responsible for injurious consequences that may result from it, unless it was so done^ as to constitute actionable negligence. ^^ The court say that the re- mark of Gibbs, C. J., in Sutton v. Clark,''^ "that a person who, for his own benefit, makes an improvement on his own land according to his best skill and diligence, and not foreseeing that it will produce injury to his neighbor, yet, if he thereby injure his neighbor, he will be an- swerable," is not only strictly an obiter dictum, but can not be sus- tained upon principle or authority.''' If one person obstructs the "Baird v. Williamson, 15 C. B. sea-wall, whereby the lands of both (N. S.) 375, 391; Smith v. Kenrick, were flooded, see Hudson v. Tabor, 7 C. B. 515; Acton v. Blundell, 12 1 Q. B. Div. 225. Mee. & W. 324. ™ Rockwood v. Wilson, 11 Cush. "Firmstone v. Wheeley, 2 Dow. & (Mass.) 221. L. 203. " Boynton v. Rees, 9 Pick. (Mass.) ""Bagnall v. London &c. R. Co., 7 528; Rowland v. Vincent, 10 Mete. Hurl. & N. 423; s. c. 8 Jur. (N. S.) (Mass.) 371; Tourtellot v. Rose- 16; 31 L. J. Exch. 121; 10 Week, brook, 11 Mete. 460; Thurston v. Rep. 232 (aflirmed in the Exchequer Hancock, 12 Mass. 220; Bachelder v. Chamber, 1 Hurl. & Colt. 544); 9 Heagan, 18 Me. 32; Panton v. Hol- Jur. (N. S.) 254; 9 L. T. (N. S.) land, 17 Johns. (N. Y.) 92; Brown 419; 31 L. J. (Exch.) 480; 10 Week. v. Kendall, 6 Cush. (Mass.) 292. Rep. 802. As to the liability of a "6 Taun. 29. frontager to one owning land in the " Rockwood v. Wilson, 11 Cush. rear of him for failing to repair a (Mass.) 221. 651 1 Thomp. Neg.J care of dangerous agencies. flow of a stream of water, to the use of which another person is en- titled, — such as a mill-race, — he must pay damages, irrespective of any question of negligence.'* The liability for the escape of water from the eavestrough of one proprietor, upon the land or against the wall of another proprietor, has been said by Cooley, C. J., to rest upon the re- quirements of good neighborhood in the particular place, and under the particular circumstances. He must use all due care and prudence to protect his neighbor,' but is not bound at all events and under all circumstances to protect him. It follows that any injury that may re- sult to such neighbor, notwithstanding the observance of proper cau- tion, must be deemed an incident to the ownership of that species of property, and can give no right of action. It was accordingly held that, where two buildings are so situated that the water from the roof of one can only be prevented from flowing against and injuring the other by an eavestrough attached to both, though the consent and cooperation of the owner of the building receiving the injary may be necessary, yet the duty of affirmative action is on the owner of the other building, and he may not lie by and see water from his roof de- stroy his neighbor's wall and rely for his protection upon the passive- ness of his neighbor.'^ Whether the theory of liability is negligence, or that the person collecting the water upon his premises is an in- surer, he will not be responsible if it gets away from him to the damage of his neighbor through a vis major, or what is termed the "act of G-od;"'" yet, while conceding this principle, it was held, where the damage was occasioned by the overflow of a ditch in a season of great rain, that if defendant should have anticipated the rains and conse- quent overflow, and could have guarded against the overflow by repair- ing and digging out the ditch, he was liable.^' It is scarcely necessary to add that the escape of water from the premises of the defendant must be the proximate or efficient cause of the injury to the plaintiff, in order to support a recovery. If, therefore, the damage sustained by him proceeded from some other cause, such as the vacation of an alley and a deficient sewerage system of the city, he can not maintain his action against the adjacent land owner.'* "Lawson v. Price, 45 Md. 123, not exist in the absence of negli- 145. gence. "Underwood v. Waldron, 33 Mich. ™Amte, § 700; Underwood v. Wal- 232. This case was reaffirmed in dron, 33 Mich. 232; Chidester v. Barry v. Peterson, 48 Mich. 263,— Consolidated Ditch Co., 59 Cal. 197. to the extent of holding that the ''Chidester v. Consolidated Ditch liability of the landowner for the Co., 59 Cal. 197. dropping of rain and the falling of "Schmidt v. Rowse, 35 Mo. App. snow from his roof, to the harm of 288. an adjacent property owner, does 652 DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2d Ed. § 711. Evidence of Negligence in Such Cases. — Although the doc- trine of Rylands v. Fletcher,''^ which makes the person collecting the water upon his premises liable as an insurer for damages caused by its escape, may not be the rule in the particular forum, — yet it will be a reasonable conclusion, on grounds more fully discussed elsewhere,*" that the mere fact of the escape of the water doing damage to the plaintiff is prima facie evidence of negligence, sufficient to charge the defendant with liability for the damages, unless he exonerates himself by showing that it was the result of a vis major or an inevitable acci- dents^ § 712. Effect of Ignorance of the Dangerous Nature of a Substance Brought upon One's Own Premises. — Cases may arise where this in- quiry will assume great importance. Here, as in other cases,**- the gov- erning principle is that where there is a duty to knoiv, negligent ig- norance has the same effect upon the liability of the defendant as actual knowledge would have had ; but where there is no duty to know, and where his ignorance does not hence proceed from his negligence, such ignorance will be a complete defense to any action to charge him with liability. This is illustrated by a case where a quantity of nitro- glycerine was delivered to an express company in K"ew York to be transported to San Francisco, the consignor not informing the com- pany of the character of the contents of the packages, and the com- pany having no right, as a common carrier, to open them for the pur- pose of inspecting them. They were shipped to San Francisco, and, while in a warehouse of the company, one of the packages sprung a leak. An agent of the company, in endeavoring to stop the leak, ex- '" Ante, § 695. other are flooded, is not excused by '"Ante, § 15. the fact that the latter has, on sev- *" Gorham v. Gross, 125 Mass. 232; eral occasions, fastened back the s. c. 6 Reporter 459. Contrary to faucet on his own premises so as to this, there is a seemingly untenable prevent a flow through the faucet left holding to the effect that evi- open, and that it was assumed that dence of leakage from a water-closet, such faucet had been so fastened upon the occasion forming the foun- back and would remain so during dation of the complaint, and upon the night, from the fact that no two other occasions, is not evidence water flowed through that left of negligence sufficient to take such open, — see Inman v. Potter, 18 R. I. a case to a jury: Bernhard v. Ill; s. c. 25 Atl. Rep. 912. Not cow- Reeves, 6 Wash. 424; s. c. 33 Pac. tributary negligence on the part of 873. That evidence that to build a a landowner which will prevent a dam without a waste weir is not a recovery of damages from overflows proper construction of it, renders it caused by the improper construc- proper to submit the question of tion of a railroad embankment, to negligence in its construction to the plant his crop where it may be jury, — see Gottrell v. Marshall In- reached by such overflow, with firmary, 70 Hun (N. Y.) 495; s. c. knowledge that it may occur: Clark 53 N. Y. St. Rep. 783; 24 N. Y. Supp. v. Dyer, 81 Tex. 339; s. e. 16 S. W. 381. That leaving open a faucet at Rep. 1061. night, so that the premises of an- ^' Ante, § 8. 653 1 Thomp. Neg.] care of dangerous agencies. ploded the packages, destroying the warehouse of the company and damaging an adjacent building belonging to the plaintiff. In an ac- tion for the damages by the adjacent property owner against the com- pany, in the Circuit Court of the United States, it was held, in an ably reasoned opinion by Mr. Circuit Judge Sawyer, that the company was not liable ; since it had not been ignorant of the packages through neg- ligence, and since it was not an insurer against accidents from the dangerous character of property which it might transport or store in its warehouses. It could only be held liable in case of negligence;^' and the decision was affirmed by the Supreme Court of the United States.** § 713. Liability where the Dangerous Substance is Brought TTpon the Defendant's Premises Without His Knowledge. — Closely resem- bling the foregoing, will be the case where the dangerous substance is brought upon the premises of the defendant without his knowledge. In such a case, if the state of his premises, or the nature of the busi- ness which he there carries on, be such as to require on his part such an inspection as would have discovered the introduction of the dan- gerous substance, his ignorance of it will obviously not exonerate him from liability. In other cases the rule will be otherwise, for clearly he will have been guilty of no wrong. Upon this- ground, a telegraph company has been exonerated from liability for the consequences of an explosion produced by the introduction of a foreign substance into its subway for wires and pneumatic tubes, without its knowledge or con" sent.*^ § 714. Injuries Caused by the Giving Way of Ketaining Walls. — If a land-owner constructs a retaining wall upon his own land — not to support his land in its natural state, but to support it in some artificial condition created by himself for his own purposes, — then he is at least bound to the exercise of reasonable care in the construction and maintenance of such wall, to the end that the earth artificially created behind it, shall not, by its giving way, be precipitated upon the land of his neighbor situated further down the hill;** on the other '^ Parrot v. Barney, 2 Abb. (U. S.) or in exonerating the defendant, in 197, 213; s. c. 1 Deady (U. S.) 405; a case where he has injured an ad- 1 Sawy. (U. S.) 423. joining property-owner by bringing " The Nitre-Glycerine Case, 15 a dangerous substance upon his own Wall (U. S.) 524; s. c. 2 Thomp. premises. Neg., 1st ed., 542. The opinion in "Brinckhord v. Western Union the court below contains an excep- Tel. Co., 58 Hun (N. Y.) 610; s. c. tionally clear and valuable discus- 35 N. Y. St. Rep. 589; 12 N. Y. Supp. sion of the effect of knowledge or 534. the want of knowledge of the dan- *" Hummell v. Seventh St. Terrace gerous character of the substance, Co., 20 Ore. 401; s. c. 26 Pac. Rep. as an element in fixing the liability, 277. 654 DANGEROUS THINGS ARTIFICIALLY COLLECTED. [2d Ed. hand, if the land-owner piles sand upon his own land in such a man- ner that, pressing laterally against the wall of his neighbor's building the latter is broken into and injured, he must pay damages, it seems on the footing of a trespass.*^ Where one negligently constructs a re- taining wall under the conditions first above stated, he will be liable for damages to the inferior proprietor, although the act of God — that is, an unprecedented storm, may have combined with his negligence in causing the wall to give way.*^ "Davis V. Evans, 59 Hun (N. Y.) ''Hummell v. Seventh St. Terrace 618 mem.; 37 N. Y. St. Rep. 714; 13 Co., 20 Ore. 401; s. c. 26 Pae. Rep. N. y. Supp. 437. 277. <855 1 Thomp. Neg.] cake of dangerous agencies. CHAPTER XXIII. NOXIOUS GASES AND LIQUIDS. Section Section 718. Liability for damages caused 722. Liability of gas-light companies by escape of noxious gases for failing to shut off gas and liquids. during a conflagration. 719. Liability of gas-light companies 723. Negligence in the use or waste for damages caused by the of natural gas. escape of illuminating gas. 724. Contributory negligence of the 720. Further of this liability. gas consumer. 721. Liability of gas companies for 725. Questions of evidence In actions explosions on the premises of for injuries from gas. their customers. § 718. Liability for Damages Caused by Escape of Noxious Gases and Liquids. — Noxious gases and liquids arising from the carrying on of lawful and necessary occupations are not nuisances in all situ- ations and under all circumstances, but may become such by reason of the trade being carried on in improper localities/ or by reason of their being negligently suffered to escape. In the last case, the gist of the action consists, not in the doing of the work, but in the manner in which it is done. Thus, in Massachusetts, a lessee may maintain an action against one who has laid gas-pipes in neighboring streets so im- perfectly that gas escapes therefrom through the ground and into the water of a well upon premises hired and used by him for a livery- stable, and thereby renders it unfit for use, and makes the enjoyment of his estate less beneficial, although the nuisance may have existed in a less degree when the premises were hired; and may recover for the inconvenience to which he has been thereby subjected, and expenses incurred in reasonable and proper attempts to exclude the gas from the well, but not for injury caused by allowing his horses to drink the' 1 Whitney v. Bartholomew, 21 nell, Cro. Car. 410; Rex v. White, Conn. 213. Certain occupations, 1 Burr. 333; Fish v. Dodge, 4 Denio deemed lawful and harmless in the (N. Y.) 312; Meeker v. Van Rens- country, may become nuisances in selaer, 15 Wend. (N. Y.) 398; First tne city: Fowler v. Sanders, Cro. Baptist Church v. Schenectady &c. Jac. 446; Reg. v. Wigg, 2 Salk. 460; R. Co., 5 Barb. (N. Y.) 79; Hay v. Aldred's Case, 9 Co. 57b; Jones v. Cohoes Co., 2 N. Y. 159; s. c. 1 Powell, Hut. 135; Morley v. Prag- Thomp. Neg., 1st ed., 72. 656 NOXIOUS GASES AND LIQUIDS. [2d Ed. water after he knew that it was corrupted by the gas.^ If such a livery- stable keeper is unlicensed, he can not recover damages for an injury to his business caused by the escape of gas through the ground into his well ; for an injury to a business carried on in violation of law will not be redressed in a court of justice; but he may recover for a nuisance to his real estate.' It has been held, in Connecticut, that where a person leaves noxious substances upon his land, which are washed by the rain along the surface of the ground into his neighbor's well, cor- rupting the water, he is liable for the injury ; and it makes no differ- ence that the noxious substances are carried along under the surface of the ground, by means of water diffusing itself according to natural laws. But when such noxious substances, by penetrating, or being buried within the soil, have affected subterraneous currents by which such well is supplied, and have corrupted the water only in that mode, the person placing such substances on or within his soil is not liable unless he has acted maliciously ; and it makes no difference, in the case last named, that the defendant has been notified of the injury, and could prevent it by the exercise of reasonable care.* The Supreme Court of New York has, however, held a gas company liable for per- mitting noxious substances to escape so as to contaminate the waters of a river, to the damage of an inferior proprietor, although they may have escaped by percolation through the soil, and without negligence.'' This and other like cases proceed on the idea that a riparian owner has a right, in the nature of property, to the use of the water of a stream, which he is entitled to receive without artificial contamination by another proprietor, and that this right is of a character so positive that it is not affected by the skillfulness, the diligence, or even by the motive of another person by whom the water may be contaminated.' In an important English case, which had the concurrence of ten judges, it appeared that the statute 6 Geo. IV., c. 79, incorporated a company for the purpose of supplying the town of Birmingham with gas. By the 8 & 9 Vict., c. 66, § 160, it is enacted, "that if the com- pany shall at any time cause or suffer to be conveyed or to flow into " Sherman v. Fall River Iron evidence of a non-expert, to the Works Co., 2 Allen (Mass.) 524. effect that other land belonging to ' Sherman v. Fall River Iron another person had been injured Works, 5 Allen (Mass.) 213. from the escape of the same sub- ' Brown v. Illius, 27 Conn. 84. The stances, has been held inadmissible. distinction between the cases of Lincoln v. Taunton Copper Man. Co., noxious liquids escaping into a well 9 Allen (Mass.) 181. This, it will by percolation through the soil, and be seen hereafter, does not corre- by following the course of an un- spond to the rule of evidence in case derground stream, is destitute of or tires set by railway locomotives, sense, and incapable of practical ap- " Carhart v. Auburn Gas Light Co., plication. Upon this point Ells- 22 Barb. (N. Y.) 297. worth, J., forcibly dissented. In a ° Howell v. McCoy, 3 Rawle (Pa.) suit for an injury of this nature, 256. VOL. 1 THCMP. NEG. 42 657 i Thomp. Neg.J care of dangerous agencies. any stream, reservoir, aqueduct, pond, or place for water, within the limits of the said act, any washing, substance, or thing which shall be produced by making or supplying gas," they shall forfeit £200. In 1854, the company erected a gas-tank about forty-five yards from the plaintiff's well. The site was selected by an engineer on behalf of the company, and the tank was erected on solid sandstone, .and with proper materials. The company knew that mines in the neighborhood had been worked, but they did not know that mines had been worked under or near to any part of their land. In 1838, there were workings un- der half the company's land; and from 1848 to 1855, these workings were brought to within about sixty yards of the tank, in consequence of which the floor of the tank cracked, and the washings in it flowed out and percolated to the plaintiff's well, thereby rendering the water unfit for domestic purposes. It was held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the com- pany had suffered the washings to flow into the plaintiff's well, within the meaning of the 8 & 9 Vict., c. 66, and, consequently, were liable to the penalty of £200.'' There is so palpable a disregard of social duty manifested by one proprietor in depositing on his own ground a noxious substance near the well of his neighbor, so that it is liable to contaminate its waters, that he will be held liable to pay damages if such a result takes place, even by the concurrence of an extraordinary fall of rain.* § 719. liability of Gas-Light Companies for Damages Caused by the Escape of Illuminating Gas. — Carbureted hydrogen gas, manu- factured at some point in a large city by companies organized for that purpose, and distributed by means of mains and smaller pipes over large and thickly inhabited districts, for the purpose of lighting streets, halls, places of business, and private dwellings; considerably lighter than atmospheric air, and hence of its own force constantly pressing outward and upward, and seeking to diffuse itself in all di- rections; highly combustible when ignited in the presence of atmos^ pheric air, and, when combined with it, highly explosive, — is an agent certainly more dangerous than water, and requiring for its due re- straint and management greater vigilance and skill. Applying, by a natural generalization, the doctrine of Rylands v. Fletcher^ to this sub- ' Hipkins v. Birmingham &c. Gas Commercial Gas & Coke Co., 11 C. Light Co., 6 Hurl. & N. 250; 7 Jur. B. (N. S.) 578 (afHrmed in Exch. (N. S.) 213; 30 L. J. (Exch.) 60 Cham., 15 C. B. (N. S.) 568). (affirming 5 Hurl. & N. 74). There 'Woodward v. Aborn, 35 Me. 271. is another English case involving "3 Hurl. & Colt. 774; s. c. 1 questions as to the construction of Thomp. Neg., 1st ed., p. 2. similar statutes: Parry v. Croydon 658 NOXIOUS GASES AND LIQUIDS. [2d Ed. stance, the conclusion would be that a company which manufactures and vends it for its own profit must keep it restrained at its peril.^" But, in the absence of statute, we find no suggestion in any book, English or American, that such a company is responsible for damages caused by escaping gas, on any other principle than a want of ordinary care and skill in its management, — terms which exact a degree of vigilance and technical knowledge in proportion to the dangerous character of the substance in which they deal, and according to the cir- cumstances of each case.^^ On the contrary, there are many cases in which they are held liable on the principle of negligence,^^ and others in which, in the absence of negligence, they have been absolved from liability. ^^ § 720. Further of this Liability. — The law exacts of them, in the care of an agency so dangerous, an active vigilance, and a frequent supervision of the districts through which their mains and pipes ex- tend ; and, while it would perhaps be going too far to require them to send inspectors over the entire district each day, yet there obviously ought to be some system of supervision. Accordingly, where a main had been leaking for several days, causing a perceptible smell, and finally producing an explosion in the plaintiff's house, the company was held liable, although, upon receiving notice of the leak, they had sent a workman to repair it, who had arrived too late.^* But the mere unexplained fact that gas leaks in an untenanted house, from which it has been shut off at the request of the owner, will not be evi- dence of negligence, to charge the company for resulting damages, if the internal fittings are the property of the owner, and if there is a " Such as received construction in (George L.) v. Lowell Gas Liglit Hipkins v. Birmingham &c. Gas Co., 8 Allen (Mass.) 169; Bartlett v. Light Co., 6 Hurl. & N. 250; 7 Jur. Boston Gas Light Co., 122 Mass. (N. S.) 213; 30 L. J. (Exch.) 60 209; Smith v. President Gas Light (affirming 5 Hurl. & N. 74); Parry Co., 129 Mass. 318; Evans v. Key- V. Croydon Commercial Gas & Coke stone Gas Co., 72 Hun (N. Y.) 503; Co., 11 C. B. (N. S.) 578 (affirmed s. c. 54 N. Y. St. Rep. 861; 25 N. Y. in Exch. Cham., 15 C. B. (N. S.) Supp. 191; Oil City Fuel Supply Co. 568). V. Boundy, 122 Pa. St. 449; s. c. 15 "Holly V. Boston Gas Light Co., Atl. Rep. 865; 22 W. N. C. 483. For 8 Gray (Mass.) 123, 131; Hutchin- a learned note on this subject, see son V. Boston Gas Light Co., 122 29 L. R. A. 337. Mass. 219, 222. " Blenkiron v. Great Central Gas '^ Holden v. Liverpool New Gas & Consumers' Co., 2 Fost. & Fin. 437; Coke Co., 3 C. B. 1; Mose v. Hast- Flint v. Gloucester Gas Light Co., ings &c. Gas Co., 4 Fost. & Fin. 324; 9 Allen (Mass.) 552; Holly v. Boston Burrows v. March Gas & Coke Co., Gas Light Co., 8 Gray (Mass.) 123; L. R. 7 Exch. 96; Lannen v. Albany Hutchinson v. Boston Gas Light Co., Gas. Co., 44 N. Y. 459 (affirming 46 122 Mass. 219; Bartlett v. Boston Barb. (N. Y.) 264); Butcher v. Gas Light Co., 117 Mass. 533. Providence Gas Co., 18 Alb. L. J. " Mose v. Hastings &c. Gas. Co., 372; Emerson v. Lowell Gas Light 4 Fost. & Fin. 324. Co., 3 Allen (Mass.) 410; Hunt 659 1 Thomp. Neg.J care of dangerous agencies. stop-cock in the house under the control of such occupant, constituting the only means of shutting off the gas.^'^ Nor will the fact that gas leaked from a hole in a main which had been opened to admit a service-pipe, and found its way into an adjacent house through an open window nearly level with the trench from the main, be of itself sufficient to charge the company with' resulting damages: the jury must believe that the workmen of the company might reasonably have foreseen the danger, and that they were bound to have the window closed.^® But such a company, in managing an element so danger- ous, is bound not only to due care on the part of itself and its servants, but it must also use due care in preventing injury from the careless or wrongful intermeddling with its works on the part of others. While it can not prevent the city from breaking the ground where its pipes are laid, for the purpose of building a sewer, nor interfere with the prosecution of the work, yet it has a right to and is bound to see that in restoring the earth to its proper place its own pipes are not injured, or, if injured, that they are repaired as soon as practicable. Where the pipes of a gas company were thus injured, so that the escaping gas injured plants in the plaintiff's green-house, the com- pany was compelled to pay damages. ^^ § 721. liability of Gas Companies for Explosions on the Premises of their Customers. — Moreover, it has been held, but upon grounds not entirely clear, that if such a company, negligently, and in breach of its contract, allow gas to escape in a cellar with which its pipes con- nect, it must pay the damages caused by an explosion, although the explosion was immediately produced by the intervening negligence of a third person, the servant of a plumber, in going into the cellar with a lighted candle. ^^ Where a leak was produced in a service-pipe by '" Holden v. Liverpool New Gas & in the street the day before the ac- Coke Co., 3 C. B. 1. Where, how- cident, it was held that there was ever, an action was brought against evidence to support a verdict for a gas light company by a child five the plaintiff: Smith v. Boston Gas years of age, to recover damages for Light Co., 129 Mass. 318. injuries received by the escape of " Blenkiron v. Great Central Gas gas, and it appeared that the child Consumers' Co., 2 Fost. & Fin. 437. and its mother occupied the same " Butcher v. Providence Gas Co., room and bed, and that in the morn- 18 Alb. L. J. 372. ing the mother was found to have " Burrows v. March Gas & Coke been suffocated by escaping gas; Co., L. R. 5 Exch. 67; 39 L. J. that the child lay by her side insen- (Exch.) 33 (affirmed on appeal, 41 sible; that the gas came from a L. J. (Exch.) 46; L. R. 7 Exch. 96; crack in a pipe laid through the 20 Week. Rep. 493; 26 L. T. (N. S.) street; that there was nothing tend- 318); Koelsch v. Philadelphia Co., ing to show that the mother or 152 Pa. St. 355; s. c. 18 L. R. A. 759; child had notice of escaping gas, or s. c. 31 W. N. C. 341; 7 Am. Rail. & could have got away or let in the Corp. Rep. 500; 23 Pitts. L. J. (N. air; and there was no smell of gas S.) 228; 25 Atl. Rep. 522. 660 NOXIOUS GASES AND LIQUIDS. [2d Ed. the negligence of the tenant of the apartment, and the company, being notified of that fact, sent a workman to repair it, by whom an explo- sion was produced, injuring the daughter of the tenant, it was held, in a suit by the person injured, that the workman was the agent of the company, and not of the tenant ; that the company was answerable for his incompetency or negligence, and liable for his gross negligence, even if the service was gratuitous; and that the contributory negli- gence of the tenant, if proved, was remote and immaterial.^' If a person employed by a gas-light company to let on gas in the houses of its consumers has severed his connection with the company, of which fact the plaintiff has knowledge, but the company nevertheless permit him, at the request of consumers, to let on gas in their houses, and in letting on the gas in the plaintiff's house he leaves a pipe open, which causes an explosion, he will not be deemed the agent of the company, and the company will not be liable.^" § 722. Liability of Gas-Light Companies for Failing to Shnt Off Gas During a Conflagration. — The measures of precaution to be taken by a gas-light company, in case of an unprecedented fire consuming a large portion of a city, underwent investigation in a case in Massachusetts, with the result that the company was exonerated from liability for the particular injury. If any rule could be extracted from the case, it would be that a gas-light company in such a situa- tion would not be justified in shutting off its supply of gas from those portions of the city not within the limits of the conflagration; nor would the fact that it continued to manufacture gas, knowing that it was constantly escaping, with frequent explosions, throughout the burnt district, be of itself evidence of negligence. It must be shown that it might, by the exercise of the degree of care required by so great an emergency, and not rendered impracticable by a situation so pecu- liar, have cut off the flow of gas within the limits of the conflagration, while fulfilling its duty of keeping the other portions of the city lighted." § 723. Negligence in the Use or Waste of Natural Gas. — It has been badly held that for the owner of a gas well to allow gas to escape into the open air and go to waste, because it is not profitable to utilize it, from a well which has been lawfully drilled, without malice or negligence, in his own premises, gives no legal ground of complaint to " Lannen V. Albany Gas Light Co., Co., 3 Allen (Mass.) 343; 9 Allen 44 N. Y. 459 (affirming 46 Barb. (N. (Mass.) 552. Y.) 264). "^Hutchinson v. Boston Gas Light * Flint V. Gloucester Gas Light Co., 122 Mass. 219. 661 1 Thomp. Neg.J care of dangerous agencies. a neighboring owner, on the ground that gas is thereby drained from the adjoining lands to the detriment of his wells; and hence the latter has no right to plug the well and prevent the waste of gas, even at his own expense.^^ If, however, the legislature intervenes, and does Justice where the courts will not, by enacting a law prohibiting the owners of gas wells from allowing the gas to escape into the air and go to waste, this will be a valid exercise of the police power, and will not be a violation of any provision of the constitution of the United States.^^ A natural gas company, authorized to transport natural gas through the streets of a city, by a statute providing that it shall be liable for any damages that may result from such transportation, is liable for damages to property resulting from an explosion of gas con- ducted by it through such street, without negligence on its part.^* If a gas company negligently allows the gas to escape from its main in the street and injure adjacent shade trees, it will be liable to the owner of them for the damage.^^ A provision in an application to a natural gas company for a supply of its gas, exempting it from liability for damages to persons or property resulting from the explosion or fire "arising or occurring from the use of the gas," does not protect the company from liability for damages occurring while the gas was not in use, resulting from its negligence in plugging a gas main under the applicant's kitchen. ^° Whether the company engaged in distributing natural gas was guilty of negligence in allowing a gas-jet to burn under a regulator for reducing to a safe point the pressure of gas in a house, which jet, according to the claim of the householder, caused the joints where the regulator was attached to the pipe line, to open and permit the escape of gas, which, taking fire, destroyed the regulator and liberated the gas so as to destroy the house, — has been held a question for a jury.^'' § 724. Contributory Negligence of the Gas Consumer. — The negli- gence of the occupant of a building in igniting gas which has escaped in a cellar, will, on familiar grounds, bar a recovery of damages from the company. If the occupant of a building, knowing that the gas has been for some time escaping, sends his servants into the cellar with a light, whereby an explosion is produced, this will be evidence of ^= Hague V. Wheeler, 157 Pa. St. N. Y. 112; s. c. 30 L. R. A. 651; 28 324; s. c. 22 L. R. A. 141; 27 Atl. Chic. Leg. News 160; 42 N. E. Rep. Rep. 714. 513. =» Ohio Oil Co. V. Indiana, 177 U. ^ Bastian v. Keystone Gas Co., 27 S. 190. App. Div. (N. Y.) 584; s. c. 50 N. ^ Ohio Gas Fuel Co. v. Andrews, Y. Supp. 537. 50 Ohio St. 695; s. c. 31 Ohio L. J. " Stoughton v. Manufacturers' 49- 35 N. E. Rep. 1059. Natural Gas Co., 159 Pa. St. 64; s. c. "^ Evans v. Keystone Gas Co., 148 28 Atl. Rep. 227. 662 KOXIOUS GASES AND LIQUIDS. [2d Ed. contributory negligence sufficient to support the finding of a referee (or the verdict of a jury, if the case were tried by jury) in favor of the defendant, though it would not warrant a judge in directing a non- suit.^* The negligence or recklessness of the tenant of the building in entering with a light a cellar in which gas is escaping is a question for the jury, under proper instructions, and the manner of directing them on this point is well illustrated by a case in Massachusetts. The negligence of the tenant, in such a case, is imputable to the landlord, and will bar a recovery by him for damages to the building.^" So, the negligence of the father of a child in failing to notify the com- pany of the leak, or in not withdrawing his child from the effects of the escaping gas by removing it out of the building, or otherwise, will be imputed to the child, and will bar a recovery of damages by it, although the company may have been negligent.^" If, through the negligence of a gas-light company, gas from their pipes is permitted to escape into a sewer and drain, and, in its course through such sewer and drain, takes up other gases which are noxious, and carries them into an adjacent house, the company must answer in damages for sick- ness to the inmates, caused thereby ; for the negligence of the gas com- pany is deemed as much the proximate cause of the injury as though their own gas had occasioned it. "It would be like that of a mill- owner who should negligently suffer his dam to give way, whereby the meadow of his neighbor below him is overflowed. If the flood should, in its course, take up stones and gravel, and carry them upon the meadow, the mill-owner would be liable as well for the damage caused by the stones and gravel as for the damage caused by the water, on the ground that the whole injury was alike the proximate consequence of his fault."^^ Although a natural gas company may have been negli- gent in operating its plant, yet here, as in other cases, the contributory negligence of the customer will bar his recovery, as where a defective flue in a house contributes in part to its destruction by fire from the natural gas.''^ Although the owners of. an oil well have not exercised due care in allowing the gas to escape therefrom, — yet if an oil miner passed with a lighted lantern so near the well that he can hear and smell the gas escaping, and it is ignited by his lantern, and explodes, killing him, his contributory negligence will bar a recovery of damages ''Lanigan v. New York Gas Light propriety of certain instructions Co., 71 N. y. 29; Holly v. Boston on contributory negligence of Gas Light Co., 8 Gray (Mass.) 123. the customer was considered in ™ Bartlett v. Boston Gas Light Co., Oil City Fuel Supply Co. v. Boundy, 117 Mass. 533; 122 Mass. 209. 122 Pa. St. 449; s. c. 15 Atl. Rep. =° Holly v. Boston Gas Light Co., 865; 22 W. N. C. 483. 8 Gray (Mass.) 123. '= Alexandria Min. &c. Co. v. "Sunt V. Lowell Gas Light Painter, 1 Ind. App. 587; s. c. 28 Co., 8 Allen (Mass.) 169. The N. E. Rep. 113. 663 1 Tboinp. Neg.] caee of dangerous agencies. for his death. ^^ On the other hand, where a gas company sent its agent with direction to turn ofE the gas from plaintiff's premises, which he did in such manner that, when plaintiff's wife went into the cellar of the building with a lighted candle, an explosion occurred which burned her so badly as to endanger her life, — it was held, she was not guilty of contributory negligence.^* Moreover, the act of the agent of the gas company was the proximate cause of the injury, and the com- pany is properly held bound for his negligence. ^° § 725. Questions of Evidence in Actions for Injuries from Gas. — Some interesting questions of evidence have arisen in actions against gas-light companies for injuries caused by escaping gas. Where an inmate of a house sued a gas-light company for injuries caused by in- haling gas which had escaped into the house, it was held competent to prove that the occupant and his family had been in perfect health up to the time when the gas began to escape into the house, and that im- mediately afterwards every member of the family became seriously ill.^° But evidence of the particulars of the sickness of these persons was not admitted ; for their sickness was deemed a collateral fact, evi- dence of which was admitted for the purpose of showing the nature of the gas which came into the house affecting all the inmates alike.'' But evidence that the inmates of another house were made sick in con- sequence of inhaling the gas that escaped into their house from the same defect in the defendants' pipes has been held to be inadmissible.^' In an action against a gas-light company to recover damages for the destruction of shade trees alleged to have been due to the leaking of gas from a street main, it has been held admissible for the plaintiff to prove that other trees of the same kind, on the same side of the street, were, during the same period, for a considerable distance from his premises, affected in the same manner.'" In such an action, the plaintiff may show, in connection with evidence tending to show that the gas company did not, after notice, use diligence in finding and stopping the leak, to what extent the gas escaped into the street. It was also held competent for the plaintiff to show that gas escaped into the same sewer from which it penetrated the plaintiff's house, into other houses at points beyond, if the company had notice of the exist- "^McClafferty v. Fisher (Pa.), 1 Hunt (Aaron) v. Lowell Gas Light Cent. Rep. 571. Co., 1 Allen (Mass.) 343. =* Louisville Gas Co. v. Guten- "Hunt (George L.) v. Lowell Gas kuntz, 82 Ky. 432. Light Co., 8 Allen (Mass.) 171. =" Louisville Gas Co. v. Guten- ^Emerson v. Lowell Gas Light kuntz, 82 Ky. 432. Co., 3 Allen (Mass.) 410. '"Hunt (George L.) v. Lowell Gas ''Evans v. Keystone Gas Co., 72 Light Co., 8 Allen (Mass.) 171; Hun (N. Y.) 503; 54 N. Y. St. Rep. 861; 25 N. Y. Supp. 191. 664 NOXIOUS GASES AND LIQUIDS. [2d Ed. ence of the gas in such houses, but not otherwise. These inquiries were deemed material upon the question of the diligence employed by the company after discovering the leak. But it was not error to refuse to allow evidence of the escape of gas into other houses at the time al- leged before it had been shown that gas escaped into the plaintiff's house.*" Upon the question whether the company had used due diligence in finding and stopping the leak, it was competent to prove, by a person who had had experience in digging holes through frozen earth, how long and how much labor it would take to dig such holes as were made by the defendant in searching for the leak.*^ In such an action, the defendants may show that the plaintifE made no claim on them for damages for more than two years after the injury complained of ; but they may not show that the plaintiff, while sick in bed, in conversation about his sickness, did not then ascribe it to the effects of gas, and said nothing as to the cause of it. So, in such an action, if it is established that the inhalation of gas is noxious to health, the belief of the de- fendants' agent upon the subject is unimportant, for the purpose of affecting the question of the care and diligence which it was the de- fendant's duty to exercise, in order to guard against its deleterious effects. But it is not admissible, in such action, for the plaintiff, in order to prove due care on his part, to show that the defendants' agent advised the occupants of a neighboring house, into which gas had escaped from the same leak, what to do to avoid ill consequences from it, and that he did the same things so advised, if such agent gave directions to the plaintiff respecting the matter.*^ In such an action, a physician who has been in practice for several years, but who has had no experience as to the effects upon the health of breathing illuminat- ing gas, is not competent to testify in relation thereto as an expert. Nor does the fact that he witnessed the effects, upon other persons, of gas alleged to have come from the same leak, qualify him as such a witness.*' In such an action, the company may show, upon the ques- tion whether it used due diligence in repairing the leak after com- plaint made, its system and course of business in regard to complaints of leaks generally.** It may, for this purpose, introduce its printed regulations, and, where these are ambiguous, explain them by parol.*' "Emerson v. Lowell Gas Light ''Emerson v. Lowell Gas Light Co., 6 Allen (Mass.) 146. Co., 6 Allen (Mass.) 146. " Emerson v. Lowell Gas Light " Holly v. Boston Gas Light Co., Co., 3 Allen (Mass.) 410. 8 Gray (Mass.) 123. " Emerson v. Lowell Gas Light " Bartlett v. Boston Gas Light Co., Co., 3 Allen (Mass.) 410. 117 Mass. 533. 665 1 Thomp. Neg.] care of dangerous agencies. CHAPTER XXIV. FIEE^ OTHER THAN RAILWAY FIRE.* 742. 743. Section 726. Scope of this chapter — Railway- fires separately treated. 727. The common law liability for damages by fire that of an Insurer. 728. This onerous liability restrict- ed by statute in England. 729. In America no liability except for negligence. 730. Measure of diligence reasona- ble or ordinary care. 731. This rule applicable to the use of fire in clearing land. 732. Whether the fact of the fire be- ing communicated from the premises of another is prima facie evidence of negligence. 733. Facts which have been held evidence of negligence in set- ting or guarding fires. 734. Facts not sufficient to raise a presumption of negligence in setting or guarding fires. 735. Negligence in these cases a question for the jury. 736. Proximate and remote damages in case of the spread of fires. 737. Further of proximate and re- mote damages in case of the spread of fires. 738. Unnecessarily exposing com- bustible materials. 739. What if two fires, proceeding from different sources, unite and cause damage. 740. Liability for erecting objects or doing acts which prevent the extinguishment of fires. *The subject of fires set in railway operation forms a separate title in Volume II, § 2230, et seq. 666 Section 741. Liability for fires communi- cated by steam threshing ma- chines. Liability for fires communi- cated by steam saw-mills. Negligence in the use of fire in manufacturing and other mechanical works. 744. Liability for fires communi- cated through the negligence of an independent contractor. 745. Liability, how affected by the relation of landlord and ten- ant. 746. Liability under statutes and municipal ordinances for In- juries from fires. 747. Statutes prohibiting or restrain- ing the setting of fires in dry woods, marshes, prairies, etc. 748. Construction of the Iowa stat- utes. Contributory negligence of the person damaged. Facts not imputable as contrib- utory negligence. 751. Exposing one's property to fire. 752. Questions of evidence in ac- tions for damages from fire. 753. Damages precluded by an agreement with the person setting the fire. 754. Not liable for fire set by one's own agent to accomplish a criminal purpose of his own. 749. 750. FIRE, OTHER THAN KAILWAY FIRE. [2d Ed. § 726. Scope of this Chapter — Railway Fires Separately Treated. — This chapter relates to ordmary fires only. The subject of railway fires is so special and peculiar that it is reserved for separate treat- ment in the next volume, under the general title of Eailway Negli- GENCE. § 727. The Common Law liability for Damages by Fire That of an Insurer.^ — ^By the principles of the ancient common law, if a man accidentally sets a fire on his own premises, and it escapes upon the premises of his neighbor, there doing damage, the former is answer- able for that damage, without reference to the question of his own negligence in setting it, or permitting it to escape. Thus, in Rolle's Abridgment (Action on the Case, B, tit., "Fire,") it is said: "If my fire, by misfortune, burns the goods of another man, he shall have his action on the case against me. If a fire breaks out suddenly in my house, I not knowing it, and it burns my goods, and also my neigh- bor's house, he shall have his action on the case against me. So if the fire is caused by a servant, or a guest, or any person who enters the house with my consent. But otherwise if it is caused by a stranger who enters the house against my will." Thus, by the common law of England, a person in whose house a fire originated, which afterwards spread to his neighbor's property and "destroyed it, w;as forced to make good his loss.^ This principle was soon extended in an action for negligently keeping a fire in the close of the defendant, whereby it burned the corn of the plaintiff in his close. After verdict, it waa oDjected that the custom invoked extended only to fire in his house oi curtilage, which are in his power. But, said the court, "Non alloc. For the fire in his field is his fire, as well as that in his house ; he made it, and must see it does no harm, and answer the damage if it does. Every man must use his own so as not to hurt another; but if a sud- den storm had risen, which he could not stop, it was matter of evi- dence, and he should have showed it." One judge dissented on the ground of the difference between a fire in a house, which is in a man's custody and power, and fire in a field, which is not strictly so.^ a, This section is cited in §§ 125, ant, or one of my family, puts a 523, 798. candle in a bracket, and the candle 'Lord Denman, C. J., in PlUiter v. falls into the straw and burns up Phippard, 11 Q. B. 347. In an old my house, and the house of my case in the Year Book (Beaulieu v. neighbor also, in such case I shall Finglam, 2 Hen, IV., fol. 18, pi. 16; answer to my neighbor for the dam- see 22 N. Y. 366), it is said: "A man age he has received;" which was is held to answer for the deed of allowed by the court, his servant, or of one of his house- ^Tubervil v. Stamp, 1 Salk. 13. hold, in such case; for if my serv- 667 1 Thomp. Neg.J care of dangerous agencies. § 728. This Onerous liability Restricted by Statute in England. — By two statutes, passed at an early day, this liability was considerably modified.^ A somewhat strange result of the relaxation by Parlia- ment of this stringent rule is to be noted in the construction put upon the iirst of these acts by the courts in several cases, — a construction which it would be difficult to explain, and for which no less a person than Sir William Blackstone seems to have been mainly responsible. By a statute of 6 Anne, c. 31, substantially reenacted by 14 Geo. III., c. 78, it was provided that "no action, suit, or process whatever shall be had against any person in whose house, chamber, stable, barn, or other building, or on whose estate, any fire shall, after the 24th day of June, 1774, accidentally begin; nor shall any recompense be made by such person for any damage thereby, any law, usage, or custom to the contrary notwithstanding." Blackstone,* after the passage of the first of these statutes, laid down the law as follows : "By the common law, if a servant kept his master's fire negligently, so that his neigh- bor's house was burned down thereby, an action lay against the master because this negligence happened in his service ; otherwise if the serv- ant, going along the street with a torch, by negligence sets fire to a house, for there he is not in his master's immediate service, and must himself answer the damage personally. But now the common law is, in the former case, altered by statute 6 Anne, c. 31, which ordains that no action shall be maintained against any person in whose house or chamber any fire shall accidentally begin, for their own loss is suffi- cient punishment for their own or their servant's carelessness." From this, it is clear that, in the opinion of Blackstone, a fire caused by negligence was an accidental fire, and that, for a fire originating in the negligence of himself or his servant, the master was, under this statute, not responsible. "^ Lord Chancellor Lyndhurst, in Viscount Canterbury v. Attorney-General/ decided in 1843, remarked, obiter, that though the work of the learned author had gone through many editions, and been subject to much criticism, no observation, to his knowledge, had been made upon the passage in question, or any objec- 'The common-law rule was con- great debate and consideration, a sidered a harsh one by the judges, new trial was denied, because it is This may be seen by two brief re- a hard action, and the jurors are ports of these actions in Salkeld: judges of the fact." S. c. sub nam. "Case for negligently keeping his Smith v. Prampton, 2 Salk. 644; 1 fire; verdict pro def. Though the Ld. Raym. 62; 5 Modern 87. verdict was against evidence, a new * 1 Cooley's Bla. 431. trial was denied, because it is a hard " See remarks of Lord Chancellor action." Smith v. Brampston, 2 Lyndhurst Jn Canterbury v. Attor- Salk. 644. "In case for negligently ney-General, 1 Phillips 306, and of keeping his fire per quod the plaint- Balcom, J., in Lansing v. Stone, 37 iff's house was burnt; the verdict Barb. (N. Y.) 15. was for the defendant. And, after °1 Phillips 306. 668 FIRE, OTHER THAN RAILWAY FIRE. [2d Ed. tion urged against it. But, althovigh in VaughariY. Menlove'' (1837), and in a case at Nisi Prius a year earlier, actions for negligently suf- fering fire to escape had been sustained, no mention was made, in those cases, of the statute in question. The question was, however, set finally at rest by the Court of Qlieen's Bench, in the case of Filliter v. Phippard/ decided in 1847, where it was expressly ruled that the statute did not include the case of a fire caused by negligence.* § 729. In America No Liability Except for Negligence. — The com- mon-law rule, which seems to have been founded on some presumed negligence or carelessness not susceptible of proof, ^^ has never been recognized in this country. Though the statutes of 6 Anne and 14 Geo. III. have been held by the New York courts to be a part of the common law of that State, and have also, in some of their provisions, been placed on the statute-books of other States,^ ^ the decisions in this country are uniform that negligence or misconduct is the gist of the liability,^ ^ and the burden of proof of negligence or misconduct is on the plaintiff. ^^ The destruction of property by fire does not raise a presumption of negligence.^* § 730. Measure of Diligence Reasonable or Ordinary Care. — Not- withstanding the very great danger to others which may attend the careless use of fire, yet the American law, having regard to the fact that this element of nature is in universal use among mankind, in cooking their food, in warming their habitations, in clearing their lands for agricultural purposes, in generating steam for the propul- sion of machinery, and in a thousand other ways, — refuses to impose '4 Scott 244. C.) 323; Sturgis v. Robbins, 62 Me. m Q. B. 347. 289; Hewey v. Nourse, 54 Me. 257; "And see Vaughan v. Menlove, 4 Scott v. Hale, 16 Me. 326; Tourtel- Scott 244; Pantam v. Isham, 1 Salk. lot v. Rosebrook, 11 Mete. (Mass.) 19. 460; Maul v. Wilson, 2 Harr. (Del.) '"Bachelder v. Heagan, 18 Me. 32. 443; Fraser v. Tupper, 29 Vt. 409. " Taylor's Landlord and Tenant, The rule seems to be the same in § 196; Rev. Stat. Me., chap. 25, § 21. Canada: Dean v. McCarty, 2 Upp. "Clark v. Foot, 8 Johns. (N. Y.) Can. Q. B. 448; s. c. 1 Thomp. Neg., 422; Bachelder v. Heagan, ,18 Me. 1st ed., p. 116. 32; Bennett v. Scutt, 18 Barb. (N. "Bachelder v. Heagan, 18 Me. 32; Y.) 347; Stuart V. Hawley, 22 Barb. Higgins v. Dewey, 107 Mass. 494; (N. Y.) 619; Calkins v. Barger, 44 Sturgis v. Robbins, 62 Me. 289; Barb. (N. Y.) 424; Barnard v. Poor, Tourtellot v. Rosebrook, 11 Mete. 21 Pick. 378; Dewey v. Leonard, 14 (Mass.) 460. Minn. 153; Jordan v. Wyatt, 4 Gratt. "Bryan v. Fowler, 70 N. C. 596. (Va.) 151; Higgins v. Dewey, 107 In the case of railroad fires, on ac- Mass. 494; Grannis v. Cummins, 25 count of the evidence of negligence Conn. 165; McCully v. Clarke, 40 or care being almost entirely in the Pa. St. 399; Miller v. Martin, 16 Mo. possession of the company or its 508; Fahn v. Reichart, 8 Wis. 255; servants, a different rule has been Garrett v. Freeman, 5 Jones (N. C.) established in many of the States. 78; Averitt v. Murrell, 4 Jones (N. 669 1 Thomp. Neg.J care of dangerous agencies. any special rule with regard to the degree of care incumbent upon one who uses it, but merely subjects him to the standard of reasonable or ordinary care, — the care that a man of average prudence, possess- ing a proper regard for the rights of others, would ordinarily take under given circumstances. ^'^ It is to be borne in mind, however, that the care and caution required of the person making use of fire is, as in other cases, a care and caution proportionate to the danger to third persons in all the attending circumstances.^' § 731. This Rule Applicable to the TTse of Fire in Clearing Land. — Consonant with this principle, to set fire to stubble, wood, timber, grass, or other material which may encumber one's land is a lawful act, for which no liability can be incurred, unless the fire were kindled at an improper time, were^ carelessly managed, or something of negli- gence can be shown. A proprietor setting fire on his own land is not an insurer that no injury shall happen to his neighbor.^' The rule is well and tersely stated in a case in Maine, in these words: "Every person has a right to kindle fire on his own land for the pur- poses of husbandry, if he does it at a proper time and in a suitable manner, and uses reasonable care and diligence to prevent it spread- ing and doing injury to the property of others. The time may be suitable and the manner prudent, and yet, if he is guilty of negligence in taking care of it, and it spreads and injures the property of an- other in consequence of such negligence, he is liable in damages for the injury done. The gist of the action is negligence, and if that exists in either of these particulars, and injury is done in consequence thereof, the liability attaches; and it is immaterial whether the proof establishes gross negligence, or only a want of ordinary care on the part of the defendant."^* On the other hand, one who conducts a " See the cases cited to the pre ceding section and also tlie follow- ing: Cosulicli V. Standard Oil Co. 122 N. y. 118; s. c. 19 Am. St. Rep 475; 33 N. Y. St. Rep. 287; 25 N. E Rep. 259 (reversing 55 N. Y. Super, 384); Krippner v. Biebl, 28 Minn 139; Needham v. King, 95 Mich "Bachelder v. Heagan, 18 Me. 32; Clark V. Foot, 8 Johns. (N. Y.) 422; Bennett v. Scutt, 18 Barb. (N. Y.) 347; Stuart v. Hawley, 22 Barb. (N. Y.) 619; Calkins v. Barger, 44 Barb. (N. Y.) 424; Dewey v. Leonard, 14 Minn. 153; Miller v. Martin, 16 Mo. 508; Fahn v. Reichart, 8 Wis. 255; 303; s. c. 54 N. W. Rep. 891; Day Dean v. McCarty, 2 Upp. Can. Q. B. V. H. C. Akeley Lumber Co., 54 448; s. c. 1 Thomp. Neg., 1st ed., Minn. 522; s. c. 56 N. W. Rep. 243; 116; Gillson v. North Gray R. Co., 23 L. R. A. 513; McNally v. Colwell, 33 Up. Can. Q. B. 129; Fraser v. 91 Mich. 527; s. c. 52 N. W. Rep. 70; Tupper, 29 Vt. 409; Brown v. Brooks, Cowley V. Colwell, 91 Mich. 537; s. 85 Wis. 290; s. c. 21 L. R. A. 255; 55 c. 52 N. W. Rep. 73. As to reason- N. W. Rep. 395; Needham v. King, a6te or ordinary care, see araie, §§ 23, 95 Mich. 303; s. c. 54 N. W. Rep. 24. 891. " Day V. H. C. Akeley Lumber Co., " Hewey v. Nourse, 54 Me. 256. 54 Minn. 522; s. c. 56 N. W. Rep. 243; 23 L. R. A. 513; ante, § 25. 670 FIRE, OTHER THAN RAILWAY FIRE. [2d Ed. fire to, or maintains it at, or negligently suilers it to reach, a point where a reasonably prudent man would not have started a fire, is liable for damages to an adjoining owner from the fire spreading to his property, although a wind rising contributes to the injury.^' § 732. Whether the Fact of the Fire Being Communicated from the Premises of Another is Prima Facie Evidence of Negligence.^ — There ought not to be any difference of judicial opinion upon so plain a question as this. When we come to deal with the subject of railway fires'^'' we shall find that judicial opinion is overwhelming to the effect that the mere fact that fire is communicated by a passing loco- motive to the premises of an adjoining land-owner is prima facie or presumptive evidence of negligence, under the operation of the maxim of res ipsa loquitur, and that numerous statutes have been enacted declaring the rule. The plain proposition, applicable here as in other cases,- ^ is that where an injury to A., or the property of A., pro- ceeds from the premises of B., under such circumstances that such injuries do not ordinarily happen where care is used to prevent them, the mere fact of the injury, so proceeding, is prima facie evidence of negligence to charge B., in conformity with the rule that the thing itself speaks. The propriety of the rule, especially in its application to the subject of fires, is seen in the fact that the person injured is ordinarily not in a situation to know whether there was negligence in the person inflicting the injury; since the injury proceeds from the premises of the latter, where the former is generally not present, and where in many cases he has no right to be present. The burden of proving negligence is indeed on the plaintiff; but this burden is dis- charged when the plaintiff shows that the fire came upon his premises from the premises of the defendant, and is shifted upon the defend- ant to exonerate himself from the imputation which arises from that fact." *°Needham v. King, 95 Mich. 30S; ™In the next volume, s. c. 54 N. W. Rep. 891. Where A. '^ Ante, § 15. kindled a fire on his land and at- '^Lawton v. Giles, 90 N. C. 374. tempted to extinguish it on the If the doctrine of the above text is same day, but the fire, continuing to sound — of which the writer has no burn smoulderingly in the soil of doubt — then Catron v. Nichols, 81 a slough until two days later, broke Mo. 80; s. c. 51 Am. Rep. 222, was out afresh, and ran upon B.'s land, erroneously decided. The case of two miles away, — it was held that Bryan v. Fowler, 70 N. C. 596, hold- if A. was negligent in kindling the ing that the fact that the cotton of fire, he was not, as matter of law, the plaintiff was burning up in the excused from liability to B., on the gin-house of the defendant, to which ground that he could not have fore- the plaintiff had sent it to be ginned, seen by ordinary care that the fire did not of itself raise a presumption would start again: Krippner v. of negligence, was probably decided Biebl, 28 Minn. 139. wrongly also; though some distinc- ^^ This section is cited in § 742. tion may be found in the fact that 671 1 Thomp. Neg.] care of dangerous agencies. § 733. Facts which have been Held Evidence of Negligence in Setting or Guarding Fires. — E., while driving a herd of sheep through the country, encamped near plaintiff's premises, and started a fire near his house and barn ; there was a quantity of dry brush and other material scattered around; E. continued his journey without extin- guishing the fire.^' F., having given the plaintiff permission to cut wood on his land, started a fire very near one of his piles, which es- caped from his control and consumed it.°^ G., intending to burn up the brush on his own land, set fire to it within six feet of the plaintiff's land, which was also covered with brush. ^^ H., on the morning of a very dry day, set fire to a heap of logs within five yards of his neigh- bor's fence, a dead pine tree and much combustible matter being be- tween the log-pile and the fence.^* In all these cases negligence was held to be present, and E., F., G., and H. were obliged to respond in damages. L., in an unusually dry summer season, set fire to logs on his fallow, adjoining the woodland of H. ; the fallow and the wood- land were both covered with combustible matter; the day before the fire was set there had been a heavy shower, but it afterward became dry and hot, and a high wind carried the fire to the land of H.^' M., having stacked his hay in too green a condition, was warned by his neighbors that it would be liable to generate fire; subsequently, ob- serving it smoking, he remarked that he would "chance it ;" ultimately it burst into a flame, which spread to V.'s property.^' P. was en- gaged in threshing wheat in a field with a steam machine ; while thus engaged, the wind increased so as to make it dangerous to continue to run the machine, but he kept on, and damage to the proprietor of the field ensued. ^° L., M., and P. were held chargeable with negligence. Evidence of negligence sufficient to take the question to a jury, in setting out or in guarding fires, has been discovered in evidence to the effect that a farmer, on a windy day, set fire to grass and stubble on his own land near the land of the plaintiff, when the grass and stubble that was a case of bailment. Evi- house: Wood v. Chicago' &c. R. Co., deuce that was held sufficient to dis- 51 Wis. 196. prove negligence on the part of a ^ Cleland v. Thornton, 43 Cal. 437. bailee sued for the destruction of ^* Jordan v. Wyatt, 4 Gratt. (Va.) household furniture by lire: John- 151. son v. Smith, 54 Minn. 319; s. c. ^'^ Higgins v. Dewey, 107 Mass. 494. 56 N. W. Rep. 37. Another court And see Barnard v. Poor, 21 Pick. has refused to discover evidence of (Mass.) 378. negligence in the act of a bailee " Garrett v. Freeman, 5 Jones (N. in leaving a kerosene lamp burning C.) 78. after midnight, during the absence ^^ Hays v. Miller, 6 Hun (N. Y.) of all persons from the building, at- 322 (affirmed in 70 N. Y. 112). tached to the frame of a window in =°Vaughan v. Menlove, 4 Scott a partition between a telegraph 244; 3 Bing. N. C. 468. office and the defendant's ware- '"' Collins v. Groseclose, 40 Ind. 414. 672 FIRE, OTHER THAN RAILWAY FIRE. [2d Ed. was very dry and combustible,;'" that the defendant set a fire in grass at a time when the wind was blowing toward a marsh which was cov- ered with tall, dry grass, to which the fire extended, burning over the plaintiff's farm;'^ and that the defendant, in a time of drought, set fire to a quantity of rubbish on his own land, which was so near a bed of very dry and inflammable peat that the slightest breeze was liable to carry sparks to the peat and spread it thence to the land of the plaintiff, which result followed, — although the defendant took the precaution of digging a ditch around the fire.'^ § 734. Facts Not Sufficient to Raise a Presumption of Negligence in Setting or Guarding Fires. — The following cases in which a party's conduct has been considered on the question of negligence are given as pertinent to this topic: A. entered a house with a lighted candle; the house was soon after destroyed by fire.'^ B. set out a fire for the purpose of clearing his land, the weather being warm and the land dry-'* C. started a fire on his farm and left it apparently safe; an unlocked for change in the weather ensued ; a strong wind sprang up and carried the fire to the adjoining premises.'^ D. set fire to a heap of logs, under circumstances similar to those in C.'s case, and the same consequences followed. In all these cases, these facts, stand- ing alone, were held not sufficient to raise a presumption of negligence in A.., B., C, or D. The defendant has been exonerated in the absence of evidence of negligence in setting or in guarding the fire where it was ^ade to appear that its escape was due to a sudden and unexpected shifting oj the wind.^^ But where the fire was set by a person on his own premises for his convenience, and not as a matter of necessity, it was held that the fact that the wind rose or shifted did not relieve him from liability.'^ Why should it, since the wind is always liable to rise or to shift ? Another court has held that one who, after having taken due precaution, sets fire to rubbish upon his premises on a calm morning, is not guilty of negligence, as a matter of law, because a ™ Richard V. Schleusener, 41 Minn. '^Lansing v. Stone, 37 Barb. (N. 49; s. c. 42 N. W. Rep. 599. Y.) 15. "Jesperson v. Phillips, 46 Minn. "Stuart v. Hawley, 22 Barb. (N. 147; s. c. 48 N. W. Rep. 770. Y.) 619. '^Brummit v. Purness, 1 Ind. App. ^Calkins v. Barger, 44 Barb. (N. 401; s. c. 27 N. E. Rep. 656. Owner Y.) 424. of a barn in which another man's "■ Polzen v. Morse, 91 Mich. 208 ; horse was stabled, liable for burning s. c. 51 N. W. Rep. 940 ; Sweeney v. the barn and the horse, by careless- Merrill, 38 Kan. 216; 16 Pac. Rep. ly setting fire to a straw stack 35 454. feet from the barn, without taking '" Spencer v. Murphy, 6 Colo. App. any measures to guard against dan- 453; s. c. 41 Pac. Rep. 841. ger to the barn : McCornack v. Sorn- berger, 56 111. App. 496. VOL. 1 TH03IP. NEG. 43 673 1 Tliomp. Neg.] care of dangerous agencies. violent wind rises and drives the fire uppn the premises of a neighbor ; but his negligence is a question for the jury.^' § 735. Negligence in these Cases a Cluestion for the Jury. — The general rule, no doubt, is that in these cases the question whether there has been negligence in setting or guarding the fire is a question for the jury, under all the circumstances of the case, — provided, of course, there is sufficient evidence of negligence in those circumstances to take the case to the jury.^° § 736. Proximate and Eemote Damages in Case of the Spread of Fires. — We must turn, for the foundation of this discussion, to the subject of proximate and remote cause, already considered;*" and in dealing with it we must keep in mind the hopelessness of harmonizing the cases upon any consistent line of doctrine. Eeasoning that the word "proximate," as generally used by the books in this connection, means closeness of causal connection and not nearness in time or dis- tance,*^ — it was held by Vice Chancellor Van Fleet, of New Jersey, that, in cases where a fire is negligently started, but is not imme- diately communicated to the property destroyed, but is communicated from one building to another until it reaches the property destroyed, the causal connection which will sustain an action against the person whose negligence originated the fire, will only cease when, between such negligence and the resulting damage an object is interposed which would have prevented the damage if due care had been taken with reference to such object.*^ Under this formulation of doctrine, if the intervening object is a building, then the fact that it takes fire and communicates the fire beyond to the plaintiff's building, does not interrupt the chain of causation, unless this intervening building, if properly built, would have arrested the progress of the conflagration. In other words, this theory, if we understand it, is that if the inter- vening building is negligently built so as to communicate the fire to buildings beyond, then the negligence of its builder or owner will be deemed the proximate cause of the ultimate damage, and not the neg- =' Bolton v. Calkins, 102 Mich. 69; St. Rep. 687; s. c. 17 N. Y. Supp. s. c. 60 N. W. Rep. 297. It has been 378. held that the mere fact of a fire be- ™ Powers v. Craig, 22 Neb. 621; ing communicated from the furnace s. c. 35 N. W. Rep. 888; Kelly v. in a building to adjacent premises Duffy (Pa.), 11 Atl. Rep. 244 (no raises no presumption of the im- off. rep.); Bolton v. Calkins, 102 proper construction, failure to re- Mich. 69; s. c. 60 N. W. Rep. 297. pair, or negligent use of the furnace, "Ante, § 43, et seq.; especially which will make the owner liable §§ 125, 126. to the owner of the injured prem- "Anie, § 48. ises- Loeber v. Roberts, 42 N. Y. «Kuhn v. Jewett, 32 N. J. Eq. 647. 674 FIRE, OTHER THAN RAILWAY FIRE. [2d Ed. ligence of the person first setting the fire. But this conception, drawn from the shadowy metaphysics of a writer of some note,*** seems to be untenable; since, if it were a sound view, then the person suffering the damage would have a right of action against the person whose negligently constructed building afforded the means of transmitting the fire. On the other hand, there is an equally foggy. decision to the effect that a complaint, in an action for damages for negligence in communicating a fire from the building of the defendant to that of the plaintiff, predicating a right of recovery upon the fact that the defendant's building was unlawfully constructed, contrary to the fire ordinances of the city, by which reason a fire originating therein' could not be put out by the fire department, but spread to and burned the adjacent building of the plaintiff, — was bad on demurrer; since the act of negligence averred against the defendant was not the proximate cause of the damage which happened to the plaintiff.^* The doctrine of Vice Chancellor Van Fleet, already referred to, would, unless we misunderstand it, hold the person through whose negligence the fire originated liable for all damages, no matter how remote, which might happen through the spread of the fire, as long as combustible material could be found which would facilitate its progress, — each element of combustible material being, in his view, a natural link in the chain of causation. For example, the burning matter being oil, a running stream on the surface of which oil would spread, would furnish such a link.*° This would have made Mrs. O'Leary liable for the burning of the greater part of the City of Chicago by reason of the fact that her cow kicked over a lamp in her stable, which she negligently used there in milking the cow. It is plain from what has preceded in another title*" that the law does not put mankind under such an onerous rule of, liability. On the other hand, it has been well held, where the conditions continue the same as when the act of negligence was committed in which the fire originated, and no new cause inter- venes, it is no defense that the fire first burned an intervening build- ing, and was thence communicated by sparks and cinders in such a manner to the building in which it consumed the property of the plaintiff, — though the two buildings were separated by a space of 200 feet; but in such a case the qviestion whether the negligence of the defendant was the proximate cause of the damage sustained by the plaintiff was deemed a question for the jury.*^ " Whart. Neg., § 149. « Ante, § 44, et seq. "Mathiason v. Mayer, 90 Mo. 585. "Adams v. Young, 44 Ohio St. 80; " Kuhn v. Jewett, 32 N. J. Eq. s. c. 3 West. Rep. 145. 647. 675 1 TllOmp. Keg.] CAKE OF DANGEROUS AGENCIES. § 737. Further of Proximate and Remote Damages in Case of the Spread of Fires. — So, also, it has been held that the destruction of property by a bach fire kindled to fight an approaching fire which would surely have destroyed the property if the back fire had not been set, must be regarded as caused by the original fire ; and the liability of the person who is responsible for such fire is not affected by the back fire.** Another court has, on the contrary, held that where A. negligently sets his own building on fire, and the fire is carried by the force of the wind to the building of B., destroying it, — A. is not liable to B., the wind being an independent intervening cause, so that A.'s negligence is not a proximate cause of the injury.*" But this view is grossly untenable, since, as already seen,^" proximate cause is really nothing more than probable cause; and, as the wind is always blowing in some quarter or other, with rare exceptions, the spread of fire under its operation is to be anticipated by a man of ordinary care and pru- dence. °^ It is quite clear that, where a person sets out a fire on his own land for his own purposes, which, by the rising or the shifting of the wind, is liable to be driven upon the premises of his neighbors, he is under a continuing duty of guarding it until it is extinguished. Therefore, where a land-owner set a fire on his own premises in August, "McKenna v. Baessler, 86 Iowa 197; s. c. 17 L. R. A. 310; 53 N. W. Rep. 103. *' Pennsylvania Co. v. Whitlock, 99 Ind. 16; s. c. 50 Am. Rep. 71. "Araie, §§ 50, 57. " See, in support of this principle, Salisbury v. Herchenroder, 106 Mass. 458 (hanging sign blown down by wind). This doctrine has been stated thus, in a charge to a jury by a learned Federal judge: "If you find that the planing-mill fire was caused by sparks from the steamer which escaped because of the negligence of the defendant, or those in charge of the boat; and if the burning of the Crandall house was a result naturally and reason- ably to be expected from the burn- ing of the planing-mill under the circumstances, and was the result of the continued effect of the sparks from the steamer without the aid of other causes not reasonably to have been expected, — then you will be justified in concluding that the al- leged negligence of the defendant was the proximate cause of the burning of the Crandall house:" Crandall v. Goodrich Transp. Co., 16 Fed. Rep. 75, 84. Negatively, the same doctrine was stated with ref- erence to a case where certain cot- 676 ton in the hands of a bailee in a cotton yard was burned by fire com- municated from an oil mill, in the following language: "If the danger of fire from the oil mill was such that a reasonably prudent man would have considered it as afford- ing a reason for not keeping his own property in a yard located as was that of the defendant, or if it was one of a number, and the surround- ings, taken as a whole, made up a danger from fire, originating in or proceeding from the mill, too great to make the keeping of the cotton the act of a prudent man, — -then, though there were other circum- stances more calculated to awaken alarm, from which the fire did not arise, the cause is not too remote to be considered. But if the mill was not a cause of reasonable ap- prehension of a fire so originating or proceeding, either of and by itself or taken in connection with other surroundings, — the defendant would not be responsible for the result of an unexpected fire originating there- in, merely because other and dis- tinct circumstances from which no harm actually came, admonished it of the danger of flre: Merchants' Wharfboat Assoc, v. Wood, 64 Miss. 661, 677; s. c. 2 South. Rep. 76. FIRE, OTHER THAN RAILWAY FIRE. [2d Ed. for the purpose of clearing the timber upon it, and it burned until October, when, in consequence of a high wind, it was driven upon the land of another, — it was held that the question of the liability of the land-owner setting the fire should be determined with reference to the circumstances existing in October, and not those existing in August. °^ § 738. Unnecessarily Exposing Combustible Materials.^ — It seems obvious to common sense, though not always to the common sense of lawyers, that if a proprietor negligently exposes highly inflammable or combustible materials on his premises, without necessity, in a place where the public are invited to resort and do resort in great numbers, and that if, through the negligence of a person so coming upon the premises, the material is ignited and the fire visits damage upon a third party, the party guilty of the original negligence ought to pay damages ; because the intervening negligence ought to have been antic- ipated. A good illustration of this principle is (or ought to have been) found in a case where a railway company negligently kept oil upon its station platform, the. packages of which leaked and the oil ran out upon the floor of the platform, and was there ignited by some one who carelessly dropped a match upon it, causing a fire which vis- ited damage upon the plaintiff. Here, the most obvious justice and common sense demand that the railroad company should pay damage to the person injured; but the justice and common sense of a com- mittee of lawyers held otherwise.'^ On the other hand, the person carelessly igniting the exposed oil was also liable to the person injured, on principles already considered.^* § 739. What if Two Fires, Proceeding from Different Sources, Unite and Cause Damage. — Upon a principle already considered," a person who sets a fire is responsible for the resulting damage, although such °^ Beaton v. Springer, 24 Ont. App. tance off. It was held that A. 297. That a man who has set a could not be held liable for the fire on his own land, is not liable to burning of this last building: an action if the fire escapes by Reiper v. Nichols, 31 Hun (N. Y.) slowly burning into the soil in his 491. neighbor's premises, though the fire a, This section is cited in § 751. is started in a dry time and nothing ^' Stone v. Boston &c. R. Co., 171 is done to prevent its spread: Mc- Mass. 536; s. c. 51 N. E. Rep. 1; Gibbon v. Baxter, 51 Hun (N. Y.) 41 L. R. A. 794; 4 Am. Neg. Rep. 587; s. c. 22 N. Y. St. Rep. 107. 490. Through A.'s negligence cinders ^Ante, § 75; Johnson v. Chicago escaped from the smoke-stack of his &c. R. Co., 31 Minn. 57; Atkinson factory, setting fire to a building, v. Goodrich Transp. Co., 60 Wis. the doors of which were locked so 141; s. c. 50 Am. Rep. 352; Small v. that, and in consequence of a want Chicago &c. R. Co., 55 Iowa 582. of proper appliances, the fire ex- '''Ante, §§ 67, 75. tended to another building some dis- 677 1 Tliomp. Neg.] care of dangerous agencies. fire mingles with a fire set by another person, and the two concur- rently destroy property, provided the fire set by him would haxe caused the damage without the assistance of the other fire.°' Hence, in an action for damages alleged to have been sustained by a prairie fire set by defendant, it has been held error to charge, as matter of law, that, if another prairie fire, which overtook the one set by the defendant, was so much larger than the latter as to overcome and en- velop it without being materially increased thereby, the defendant is not liable, — such charge being an encroachment upon the province of the jury.^'' On the contrary, the Supreme Court of Wisconsin have held that where two fires intermingle, one of them attributable to the negligence of the defendant, and the other to some unknown agency, and the combined fire does damage to the plaintiff he can not recover damage from the defendant, although the defendant's fire, proceed- ing alone, would have inflicted the damage without the aid of the other fire. The court satisfies itself with the reason that the rule of liability in case of joint wrong-doers does not apply to injuries from a fire into which two independent fires from different directions have merged, each of which would have been separately sufficient to cause the loss, but only one of which can be traced to a responsible agency.^* The reason would be a good one if properly applied; but the conclu- sion is so clearly wrong as not to deserve discussion. It is just as though two wrong-doers, not acting in concert, or simultaneously, fire shots from different directions at the same person, each shot inflicting a mortal wound. Either wound being sufficient to cause death, it would be a childish casuistry that would engage in a debate as to which of the wrong-doers was innocent on the ground tha;t the other was guilty. If, in the case above stated, the fire set by the defendant would have, proceeding alone, and did, after mingling with the other fire, cause the damage, then the plaintiff was liable upon plain prin- ciples, founded in many decisions and in the reason already dis- cussed. '^^ § 740. Liability for Erecting Objects or Doing Acts which Prevent the Extinguishment of Fires. — It has been held that the fact that telegraph and telephone poles and wires prevented the extinguishment of a fire does not make the company owning them liable for the loss, where the owner of the building which was burned, on whose land they stood, had built by the side of them, and had permitted a tenant to ■» McClellan v. St. Paul &c. R. Co., "' Thoburn v. Campbell, 80 Iowa 58 Minn. 104; s. c. 59 N. W. Rep. 338; s. o. 45 N. W. Rep. 769. 978; 61 Am. & Eng. Rail. Cas. 509; ™ Cook v. Minneapolis &c. R. Co., Thoburn v. Campbell, 80 Iowa 338; 98 Wis. 624; s. c. 40 L. R. A. 457; S. c. 45 N. W. Rep. 769. 74 N. W. Rep. 561. ""Ante, §§ 67, 75. 678 FIRE, OTHER THAN RAILWAY FIRE. [2d Ed. use one of the wires, and had never, for years, objected to them in any way before the fire.*" So,, where a company engaged in constructing a sewer, so covered and obstructed a fire hydrant that it could not be used in extinguishing a fire, they were liable for the resulting damage to plaintiff's house from fire, which could not be extinguished on ac- count of defendants' interference with the hydrant.*^ § 741. Liability for Fires Communicated by Steam Threshing Ma- chines. — It has been well reasoned that an owner of a steam threshing machine is bound to use reasonable means and efforts to furnish good and well constriicted machinery and a proper spark-arrester, combining the greatest safety with practical use; but is bound to have absolutely safe machinery, or such as, by ordinary care, will afford absolute security against the burning of stacks of grain on the premises where he is threshing, from sparks escaping from his engine.''^ It has been held by the Supreme Court qf Canada that the absence of a spark-arrester upon such a machine is not negligence as matter of law, and that it is a misdirection to tell the jury that it is.°^ An intermediate court in New York has, on the other hand, held that to use such an engine near the barn of another without having a spark-arrester upon its smoke-pipe is negligence ; though the case was decided in favor of the defendant, on the ground of contributory negligence of the plaintiff. ''* On the other hand, a land-owner employing the owner of a steam thresher to thresh his wheat, is bound to have his premises in a reason- bly safe and fit condition for the reception and use of the engine ; and if he negligently fails to remove straw and dry grass from the stack yard, and if, as the result of this, fire spreads from the engine to his stacks, his own negligence will preclude him from recovering dam- ages.'"' But if the land-owner does not know that the engine is not pro\"ided with proper spark-arresters, and if, through his ignorance of such fact, he designates a place for setting it up which is actually dangerous, but which the employes of the owner of the engine assure hJm is safe, his contributory negligence will not bar a recovery of damages, in case a fire is communicated from it to his stacks, destroy- ing them.''^ "' Chaffee v. Teleph. & Tel. Co., 77 For a state of facts under whicli Mich. 625; s. c. 6 L. R. A. 455; 43 the owner of a steam threshing ma- N. W. Rep. 1064. chine was held liable to a farmer "' Kiernan v. Metropolitan Con- whose stacks took fire from it, see struction Co., 170 Mass. 378. Garrison v. Graybill, 52 Mo. App. °^ Holman v. Boston Land &c. Co., 580. 20 Colo. 7; s. c. 36 Pac. Rep. 797. "Gillingham v. Christen, 55 111. '^" Peers v. Elliott, 21 Can. S. C. 19; App. 17. aff'g s. c. 23 N. S. 276. "'' Richardson v. Douglas, 100 Iowa "Dennis V. Harris, 46 N. Y. St. 239; s. c. 69 N. W. Rep. 530. Rep. 525; s. c. 19 N. Y. Supp. 524. 679 1 Thomp. Neg.J care of dangerous agknoies. § 742. Liability for Fires Communicated by Steam Saw-Mills. — The principle which has been approved in dealing with this phase of the subject under consideration, is that the owner of a mill propelled by steam so situated that the property of adjacent owners is liable to be set on iire from sparks thrown out of its chimney, must use a de- gree of care proportionate to the danger to prevent the sparks from being thrown out, by the use of a spark-arrester, if that is practicable ; and if it is impracticable or impossible to operate it without thro^ring sparks out upon the property of adjoining owners, setting such prop- erty on fire, then he must pay damages if any fire thus occurs, on the footing of an insurer, the act being in the nature of a direct trespass.^'' The action may proceed either on the footing of a trespass or a nui- sance. It is obviously just as much a trespass to throw fire upon the building of one's neighbor, as it is to throw stones and dirt upon it in the act of blasting rocks ;°^ and if a business can not be carried on in proximity to the house or other buildings of another without rendering them continually liable to destruction by fire, then the carrying on of such business is a nuisance, making the one who carries it on answer- able if damages arise therefrom. From these considerations, it be- comes clear that the person carrying on such an establishment is bound to take whatever precautions may be necessary to prevent the burning of his neighbor's building thereby. He is bound, for ex- ample, to keep a watchman constantly on duty where the danger is such that that precaution is necessary; and if a fire is communicated to the building of his neighbor through the fact of the watchman neg- ligently abandoning his duty, the person using the fire will, of course, be liable.^" Proceeding xipon these principles, it was well held that the owner of a steam saw-mill was liable for negligently setting fire to an adjacent house, where the evidence showed that sparks had con- stantly escaped from the smoke-stack of the mill, both before and after a spark-arrester was placed upon it, and that the attention of the mill- owner had been called to the fact by the plaintiff, whose house had been several times fired by the sparks.'" Upon the question what pre- cautions the owner of a steam saw-mill in a lumber country ought to "'This, though stated in the Ian- 537; s. c. 52 N. W. Rep. 73. He is guage of the author, was the sub- also clearly bound to employ, in the stantial conclusion of the Supreme operation of his mill, all other neces- Court of North Carolina in Lawton sary means to prevent the communi- V. Giles, 90 N. C. 374. cation of fire from it, and the neg- ""Post, § 764. lect of any such means has been "'' Hauch V. Hernandez, 41 La. An. said to be negligence as matter of 992; s. c. 6 South. Rep. 783; cited law. McNally v. Colwell, 91 Mich, with approval in McNally v. Colwell, 527, 535; s. c. 52 N. W. Rep. 70. 91 Mich. 527, 534; s. c. 52 N. W. ™John Mouat L. Co. v. Wilmore, Rep. 70; Cowley v. Colwell, 91 Mich. 15 Colo. 136; s. c. 25 Pac. Rep. 556. 680 FIKE, OTHER THAN KA.ILWAY FIEE. [2d Ed. take, it has been held that expert evidence is inadmissible, since a jury, in such a country, will be apt to have as good an opinion on that ques- tion as a so-called expert witness will ; and it was held error to admit evidence as to what precautions mill-owners at other places took to prevent the breaking out and spread of fire.'^^ But, evidence that other similar injuries have happened from the same cause is very gen- erally admitted, as bearing upon the question whether there has been negligence in suffering the cause of injury to exist; and upon that ground it would seem to be admissible to show that other fires had been communicated by the mill in the same way. Upon the question what evidence is necessary to show that the fire was so communicated and to negative the possibility of its having arisen from some other source, it has been held that where the evidence shows that the sparks had many times before been blown into the plaintiff's house from the mill, seventy-five yards from it, and that, on the day of the fire, the wind was from the direction of the mill, and that the window-screen on the side of the house towards the mill was loose, so tha't from the mill, sparks might have gotten into the room where the fire originated, and that there was no fire in the house at the time, and no other known source from which the fire could have originated, — this was sufficient to warrant the Jur}'' in finding that the fire was communicated to the house from the mill.''^ It may be added that it has been held, on a principle already considered,^ ^ that the fact of fire being communi- cated by a mill to an adjacent building is prima facie evidence of neg- ligence, warranting a verdict in favor of the plaintiff, unless the con- clusion of negligence is overcome by the circumstances of the case, or by countervailing evidence;''* and even then it is for the jury to say whether that has been done. § 743. Negligence in the Use of Fire in Manufacturing and other Mechanical Works. — It is to be constantly kept in mind that, in the use of fire for mechanical or manufacturing purposes, the rule of lia- bility is what books define as reasonable or ordinary care, which is a degree of care proportionate to the danger incurred; from which it follows that, if used without negligence, and with proper safeguards, no liability attaches for the damages caused by its escape.'' " On the "McNally v. Colwell, 91 Mich. "Lawton v. Giles, 90 N. C. 374. 527; s. c. 52 N. W. Rep. 70. It was " Gagg v. Vetter, 41 Ind. 228; held error to permit a witness to Hoyt v. JefCers, 30 Mich. 181; Teall testify that one of the hangers in v. Barton, 10 Barb. (N. Y.) 137; the boiler-room of the mill had been Read v. Morse, 34 Wis. 315 ; Hinds charred by fire some years before, v. Barton, 25 N. Y. 545; Hauch v. McNally v. Colwell, supra. Hernandez, 41 La. An. 992 ; 6 South. "John Mouat L. Co. v. Wilmore, Rep. 783; Day v. H. C. Akeley &c. 15 Colo. 136; s. c. 25 Pac. Rep. 556. Co., 54 Minn. 522; s. c. 56 N. W. ''Ante, § 732. Rep. 343; 23 L. R. A. 513. 681 1 Tbomp. Neg.J care of dangerous agencies. other hand, the use of fire for such purposes is not deemed in law a nuisance'" unless it is necessarily used in such a way as to constitute a continual menace to the safety of other buildings, — as where a steam saw-mill continuously causes fire upon an adjacent building while in operation, although supplied with a spark-arrester. For example, a petroleum refinery, when properly conducted, is not a public nuisance. The fact that an explosion takes place in such an establishment is not of itself deemed prima facie evidence of negligence under the rule of res ipsa loquitur; but, on the other hand, the presumption prevails that those in charge of it have done their duty. When, therefore, such an explosion took place and a quantity of the iurning oil flowed down a pipe, used by the oil company for pouring oil into its refinery from vessels moored at its wharf, whereby a lighter loaded with petro- leum took fire, exploding and setting on fire a vessel belonging to the plaintiff, — it was held — but as the writer thinks, erroneously — that this was not evidence of negligence to charge the oil company. '^ A porcelain factory requiring a great deal of heat in its operation has been regarded as of such imminent danger to adjacent property as to require, in the exercise of reasonable care, the constant attendance of a watcliman; and where such an establishment was left unattended and unguarded from the time of ceasing to feed the fires, when the heat was 3000 degrees Fahrenheit, until the kiln became cold, for twelve or fifteen hours, in consequence of which a fire was communi- cated to adjacent property, this was held evidence of negligence.'* For a plumber to set fire, with a lamp, to a shaftiijg box saturated with oil, while engaged in repairing the inside of it, is an act from which a jury may infer negligence. '° § 744. Liability for Fires Communicated througli the Negligence of an Independent Contractor. — Unless the circumstances of the case are such that the mere fact of authorizing the fire to be set is of itself negligence, then, if it is set by an independent contractor, the fact that it escapes his control through his negligence and gets upon the land of another and there does damage, does not make the land-owner upon whose land it is set by the independent contractor, liable for such damage. It was so held where an independent contractor under- ™ Cosulich v. Standard Oil Co., 122 19 Am. St. Rep. 475; 33 N. Y. St. N. Y. 118; s. c. 25 N. B. Rep. 259; Rep. 287; reversing s. c. 55 N. Y. 19 Am. St. Rep. 475; 33 N. Y. St. Super. 384. Rep. 287; reversing s. c. 55 N. Y. ™ Hauch v. Hernandez, 41 La. An. Super. 384. 992; s. c. 6 South. Rep. 783. "Cosulich V. Standard Oil Co., 122 "Perry v. Smith, 156 Mass. 340; N. Y. 118; s. c. 25 N. E. Rep. 259; s. c. 31 N. E. Rep. 9. 682 FIRE, OTHER THAN RAIL\VAY FIRE. [2d Ed. took the work of clearing land at a stipulated sum per acre.*" The proprietor of a grain elevator, in which there is much inflammable matter, is not, as matter of law, guilty of negligence in failing to have automatic sprinJclers in the building.^ ^ § 745. Liability, How Affected by the Relation of Landlord and Tenant. — It has been held that the lessee of a saw-mill who negli- gently allows fire to communicate with sawdust and debris during the existence of the lease, is liable for the destruction of the mill by the extension of such fire thereto, after the termination of the lease. '^ A licensee of land having a right to use it for general purposes, or for the specific purpose of storing lime upon it, has been held liable for the burning of a building on the land, caused by the negligence of his employes in allowing the lime to come into contact with water coming upon the land from a river during a time of overflow.^' § 746. Liability Under Statutes and Municipal Ordinances for In- juries from Fires. — Statutes and municipal ordinances have frequently been enacted, designed to guard against injuries from the spread of fires. These statutes are in the nature of police regulations and, as we shall hereafter see, are valid even as against railroad corporations operating under charters antedating them. The validity of a munic- ipal ordinance established for this purpose depends upon two consid- erations : 1. Whether it is within the powers granted to the municipal corporation by the legislature; 2. Whether it is reasonable. For ex- ample, where the charter of a city confers upon it "the power to make regulations for the prevention of accidents by fire," and "to prevent, by all possible and proper means, danger or risk of injury or damages by fire arising from carelessness, negligence, or otherwise," — the city is authorized to establish fire limits and to prevent the erection of wooden iuildings therein. ISTor, under such a charter, is an ordinance establishing fire limits and providing that no wooden buildings shall be constructed therein, unless a permit therefor be granted by the city council, unreasonable or unduly oppressive; since its burdens are imposed alike on all persons within the limits of the prescribed district.*** Judicial opinion has gone so far, in some cases, as to hold *> Ferguson v. Hubbell, 97 N. Y. ^Licking Rolling Mill Co. v. 507; s. c. 49 Am. Rep. 544; reversing Fischer, 88 Ky. 176; s. c. 10 Ky. L. s. c. 26 Hun (N. Y.) 250. Rep. 763; 11 S. W. Rep. 305. "'Cox V. Central &c. R. Co., 170 "Olympiav. Mann, 1 Wash. 389; Mass. 129; s. c. 49 N. E. Rep. 97; s. c. 25 Pac. Rep. 337; 12 L. R. A. 9 Am. & Eng. R. Cas. (N. S.) 591. 150; 32 Am. & Eng. Corp. Cas. 418. "- Stevens v. Pantlind, 95 Mich. To a similar effect, see Wadleigh v. 145; s. c. 54 N. W. Rep. 716. Com- Gilman, 12 Me. 403; s. C 28 Am. pare post, § 1154, et seq. Dec. 188; Alexander v. Greenville, 54 Miss. 659. 683 1 Tbomp. Neg.] care of dangerous agencies. that a municipal corporation has inherent power, independent of any legislative grant, to forbid the erection and to compel the removal of buildings formed of combustible materials within portions of the town or city which are so densely built up as to render the presence of such buildings dangerous.* ° But the weight of authority seems to be to the effect that in order to authorize the exercise of this power by a municipal corporation, there must be an express authority from the legislature.*® Assuming the validity of a statute or municipal ordi- nance enacted to prevent the spread of fires, then, under a principle already considered, ^'^ the violation of it is negligence per se, making the violator liable for any damages which are the proximate result of his unlawful act. If the statute prohibits the setting of fire in certain places, or under certain conditions, then, aside from the question whether the damages were the proximate result of the wrongful act, the only substantial inquiry will be. Did the defendant set the fire under circumstances within the statutory prohibition?** To bring a case within the prohibition of a statute of this nature, the setting of the fire must have been intentional, or at least not the result of an accident, for which, aside from the statute, legal responsibility would not attach.*" '= Monroe v. Hofeman, 29 La. An. 651; s. c. 29 Am. Rep. 345; Baum- gartner v. Hasty, 100 Ind. 575; s. c. 50 Am. Rep. 830. ™ Keokuk v. Scroggs, 39 Iowa 447; Pye v. Peterson, 45 Tex. 312; Kneed- ler V. Norristown, 100 Pa. St. 368; s. c. 45 Am. Rep. 384; Hudson v. Thome, 7 Paige (N. Y.) 261. ^ Ante, § 10. Contrary to the text, it has been held that to keep ashes in a wooden barrel, in viola- tion of a city ordinance, is not neg- ligence per se: Cook v. Johnston, 58 Mich. 437; s. c. 55 Am. Rep. 703. The theory is that of an earlier de- cision in the same State (Taylor v. Lake Shore &c. R. Co., 45 Mich. 74), that the primary object of munici- pal ordinances is public and not pri- vate; that they are general in their nature, and impose duties which may be of no special importance in particular instances; and that their violation is to be redressed by legal penalties; in other words, that their violation raises merely, a question between the municipal corporation in a public prosecution, and the per- son guilty of violating them. Nearly all the authority in the books is against this doctrine. Ante, § 12. Other courts have busied them- selves with limiting the application 684 of such statutes. In Missouri, the erection of a wooden structure with all of its sides closed, in violation of a city ordinance, does not render the owner thereof liable to an adja- cent owner whose building is con- sumed by fire originating in such wooden building: Mathiason v. Mayer, 90 Mo. 585; s. c. 7 West. Rep. 739. In Rhode Island, a statute (R. I. Pub. Laws, cap. 688) requiring the erection of fire escapes, does not create a duty between the owner and an employ^ of his tenant, to give the latter a right of action against the owner for injury sus- tained by a fire: Maker v. Slater Mill &c. Co., 15 R. I. 112; s. c. 1 N. E. Rep. 176. On the other hand, a State court has taken the view that the Federal statute limiting the lia- bility of ship-owners (Rev. Stat. U. S., § 4282) does not relieve the owner of a vessel from liability for damage from fire caused by his own negligence, but only from negligence of his employes and servants: Woodhouse v. Cain, 95 N. C. 113. "* Emerson v. Gardiner, 8 Kan. 455; Hunt v. Haines, 25 Kan. 210; Dunleavy v. Stockwell, 45 111. App. 230. ™ Missouri &c. R. Co. v. Davidson, 14 Kan. 349; doctrine recognized in FIRE, OTHER THAN RAILWAY FIRE. [2d Ed. § 747. Statutes Prohibiting or Restraining the Setting of Fires in Dry Woods, Marshes, Prairies, etc. — In some of the States, on account of the great danger attending the bnilding of fires on prairiei?, in dry woods, and marshes, statutes are in force making the liability for such fires absolute, under certain circumstances. In North Carolina, for in- stance, a person must give notice in writing of his intention to set oui a fire on his lands, or bear the consequences of its spread.'" This notice being for the protection of the adjoining owners, may be waived by them."^ In Missouri and Illinois, a person willfully setting on fire any marshes, woods, or prairies is liable without negligence being shown. "^ Under the Missouri statute,^^ in order to charge the de- fendant with liability the act must have been intentional or willful. ''■' That statute does not warrant an action against a person who starts a fire upon his land for a legitimate purpose, which accidentally escapes to adjoining lands and does injury. ''° The fact that property de- stroyed by fire escaping from the land of one who set the fire upon his own premises contrary to the statute, was insured, does not render him the less liable for violating the statute."" A necessity for the act is an excuse, the burden of proving which is on the defendant."'' As used in these statutes, the word "woods" is restricted to forest lands in their natural state."' A statute of Connecticut provided that "every person who shall set fire on any land, that shall run upon the land of any other person, shall pay to the owner all damages done by such fire." The provisions of this statute have been held to apply only to the kindling of fire on one's land "to destroy bushes, or for any like purpose," and would consequently, it seems, not apply to a fire made in a dwelling-house for domestic purposes. To come within this statute, it is not necessary that the fire should run along the Hunt v. Haines, 25 Kan. 210. A vll- " Rev. Stat. Mo. 1889, § 2129. lage ordinance providing that no "* Kahle v. Hobein, 30 Mo. App. combustable substance shall be set 472. on fire or burned in any street at "'Russell v. Reagan, 34 Mo. App. any time, or in any lot, except be- 242. tween the rising and setting of the " Dunleavy v. Stockwell, 45 111. sun, has been construed as forbid- App. 230. ding fires in the streets at all times, "Johnson v. Barber, 10 111. 425; but permitting a fire in any lot Burton v. McClellan, 3 111. 434. between sunrise and sunset: New "Averitt v. Murrell, 4 Jones (N. Rochelle v. Clarlj, 65 Hun (N. Y.) C.) 322. A field grown up in broom 140; s. c. 47 N. Y. St. Rep. 406; 19 sedge and wiregrass, surrounded by N. Y. Supp. 989. an old fence, and used as a pasture, "■Rev. Code, chap. 16, § 2. is not "woods" within the meaning "Roberson v. Kirby, 7 Jones (N. of Bat. N. C. Rev. Stats, ch. 13, § 1, C.) 477; Jordan v. Lassiter, 6 Jones so as to make the owner, burning (N. C.) 130. off the same, liable to the penalty "'Rev. Stat. Mo. 1835, p. 624; 1 imposed by the act for an alleged Wag. Stat. 638; Rev. Stat. 111. 1879, injury to an adjoining proprietor: § 158; Armstrong v. Cooley, 10 111. Achenbach v. Johnston, 84 N. C. 264, 509; Finley v. Langston, 12 Mo. 120. 685 1 Thomp. Neg.j cake of dangerous agencies. ground in a continuous or traceable course, but its spread in any ordi- nary mode, through natural causes (such as the wind conveying the sparks), is sufficient. "' But the statute does not apply where the fire is set upon the land injured. It must begin on the land of one per- son and "run upon the land of another."^"" Under statutes of Cal- fornia, — construed and compared, it has been held that a farmer who necessarily sets fire to grass on his own land for agricultural purposes, is not liable in treble damages, in case the fire escapes without his negligence to the lands of his neighbor. ^"^ In a prosecution under the California statute giving treble damages for the destruction of prop- erty by fires negligently set out,^"^ the burden is on the plaintiff to prove that the fire was started negligently, or for an unneces- sary purpose, or that the defendant failed to exercise due care to prevent it from spreading ; and this burden is not sustained by the mere proof of the setting of the fire, that fact alone not being evidence of negligence. It was so held where the fire proceeded from the prem- ises of a mill company.^ "^ § 748. ' Construction of the Iowa Statutes. — In Iowa, some diffi- culty has attended the construction of statutes of this kind. An early law provided that if any person or persons "shall set on fire, or cause to be set on fire, any woods, prairies, or other grounds whatever, other than his own, or shall permit the fire set out by him to pass from his own prairie or woods, to the injury of any person or persons, * * * j^g shall be liable to an action to the party injured, for all damages which he, she, or they may have sustained in consequence of such fire."^°* In De France v. Spencer, '^"^ it was held that ordinary caution and honest motives in setting fire to a prairie, and due diligence in prevent- ing it from spreading, were a good defense under this statute. The court say: "Does our statute change this rule,^"* and make an indi- vidual responsible for damages done by fire passing from his own premises, when it was not within his power to prevent it ? We think not. The meaning of the statute is, that a person shall not willingly or carelessly permit or suffer the fire to pass so as to injure another ; or, if he does, that he should be liable to the party injured. If a ''Ayer v. Starkey, 30 Conn. 304. which the fire is set: Knight v. ""Grannis v. Cummins, 25 Conn. Towles (S. D.), 62 N. W. Rep. 964 165. (not off. rep.). ""Gamier v. Porter, 90 Cal. 105; ™Laws 1846, p. 3, § 1. s. c. 27 Pac. Rep. 55. ™2 Greene (Iowa) 462. "= Cal. Pol. Code, § 3344. >" As laid down in Clark v. Foot, "=Galvin v. Gualala Mill Co., 98 8 Johns. (N. Y.) 422; Bachelder v, Cal. 268; s. c. 33 Pac. Rep. 93. Lia- Heagan, 18 Me. 32; Ellis v. Ports- bility created by Dak. Comp. Laws, mouth &c. R. Co., 2 Ired. (N. C.) § 2392, not prevented by plowing a 138. 50-feet strip around the land on 686 FIRE, OTHER THAN RAILWAY FIRE. [2d Ed. person does all in his power to prevent the fire from passing; but if, in opposition to all of his efforts, it still passes on to the premises of another, he does not, in contemplation of the statute, permit it to pass. It encroaches upon his neighbor against his best efforts, without 'his consent or permission, and he should not be held liable for any dam- age which it may occasion. While a person has a right to set fire to his own grounds, yet if he does so when, from their contiguity to those near him, or from high wind, or other cause, the result would lead to mischief, in such case he would be liable if injury is done to his neighbor's property ; because he could not exercise diligence to prevent the fire with such success as if the fire had been prudently set out. But when from good motives, and under prudential circumstances, a person sets fire to his prairie or woods, and uses such care and dili- gence to prevent it from spreading as a man of ordinary caution would use to prevent it from injuring his own property, he is not liable for the damage which it may do the premises or property of others." The statute of 1846 was subsequently amended so as to read, "If any person willfully, or without using proper caution, set fire to and burn, or cause to be burned, any prairie or timbered land, by which the prop- erty of another is destroyed, he shall," &c. In Hanlon v. Ingram/"'' an instruction that, before the plaintiff could recover, he must prove that the defendant had been guilty of gross negligence in setting out the fire or permitting it to escape, was held erroneous, the chief justice who delivered the opinion of the court asking the question, "Would .he not be liable in the absence of any negligence?" When the same case subsequently came again before the court, the ruling in De France V. Spencer^°^ was followed, though apparently with reluctance;^"* yet, in a still later case, it was once more followed. ^'■'' But when, in 1863, a statute was passed which omitted the words "without using proper caution," contained in the previous act, and which applied to fires set out between the first days of September and May, the court held that the liability of a person under this statute was absolute, and entirely regardless of the question of negligence.^^^ Under a statute of that State, as it now exists,^ ^^ a higher degree of liability attaches to the person setting out prairie fires and allowing them to escape upon the lands of others, than under the earlier statutes; so that a person setting such a fire and allowing it to escape, within the prohibited period, is absolutely liable for the consequences, irrespec- tive of the question of his negligence.'^' "" 1 Iowa 108. "= Iowa Code 1873, § 3890. ™2 Greene (Iowa) 462. "' Thoburn v. Campbell, 80 Iowa '"'Hanlon v. Ingram, 3 Iowa 81. 338; s. c. 45 N. W. Rep. 769. Not "° Jacobs V. Andrews, 4 Iowa 506. liable under Iowa Code, § 3890, "' Conn V. May, 36 Iowa 241. where the Are was not started in 687 1 Thomp. Neg.j care of dangerous agencies. § 749. Contributory Negligence of the Person Damaged. — Here, as in other eases, the person sustaining the injury from the fire may be precluded from recovering damages from the person through whose negligence it has been communicated to his premises, by reason of his own contributory negligence. The rule here, as in other cases, is that if the negligence of the plaintiff contributes, in a substantial degree, to the injury which he has sustained he can not recover damages from the defendant, although the injury may have proceeded also from the defendant's negligence. The degree of care put upon the plaintiff, the absence of which will be ascribed to him as contributory negligence, is reasonaile or ordinary care, under the circumstances of the case, which may be a very high degree of care, where the risk is great and imminent.^'-* Under the operation of this principle, the plaintiff has been precluded from recovery although the defendant has been guilty of negligence, under the following circumstances: — Where the house of the plaintiff, supplied by natural gas from the works of the defendant, takes fire through a defective flue;^^'' where the plaintiff, owning a stack of hay, fails to exercise reasonable prudence in burn- ing the grass around it, so as to protect it from a prairie fire started by the defendant j^^" where the plaintiff had knowledge of the exist- ence of a fire in a quantity of rubbish in adjoining premises, for two days before it reached and burned his building, and took no steps to prevent its spreading to his property, and failed to notify the defend- ant that it was spreading ;^^' and where one employing another to thresh his wheat by means of a machine propelled by steam, failed to. put his premises in suitable order to prevent the spread of fire from the engine.^ ^' prairie grass or in timber, but lar, turned it ofE at the furnace, but where it was merely started in a failed to shut the "cut-off" at the hole to smoke out a wolf: Ellsworth outer wall, — see Stoughton v. Manu- V. EUingson, 96 Iowa 154; s. c. 64 facturers' Nat. Gas Co., 159 Pa. St. N. W. Rep. 774. 64; s. c. 28 Atl. Rep. 227. "*Por example, in one case it was '"Brown v. Brooks, 85 Wis. 290; reasoned that slight negligence on s. c. 21 L. R. A. 255; 55 N. W. the part of the owner of a barn Rep. 395. In such a case it was filled with hay, in exposing it to held error to instruct the jury that sparks from a steam engine, would the failure of the plaintiff to re- prevent recovery from those operat- move the grass from around his ing the engine, for damages from stacks was not negligence: Brown fire caused thereby, although the v. Brooks, supra. The fact was that defendants were guilty of gross neg- a fire had been burning in a marsh ligence: Dennis v. Harris, 46 N. Y. for some time, and that the plaint- St. Rep. 525; s. c. 19 N. Y. Supp. iff's stack was burned by a fire com- 524. municated from the lands of other "= Alexandria Min. &c. Co. v. owners, who had set it to protect Painter, 1 Ind. App. 587; s. c. 28 their property. N. B. Rep. 113. That such a ques- "'Richter v. Harper, 95 Mich. 221; tion is a question for the jury, s. c. 54 N. W. Rep. 768. where the plaintiff, discovering the "*Gillingham v. Christen, 55 111. escape of the natural gas in his eel- App. 17. Compare Richardson v. 688 FIRE, OTHER THAN RAILWAY FIRE. [2d Ed. § 750, Facts Not Imputable as Contributory Negligence. — Judicial theory has refused to discover evidence of contributory negligence in the person sustaining the damage from fire, under the following cir- cumstances: Where the plaintiff's barn, which was burned, contained hay, and its sills rested on blocks, and were about eight inches above the ground on which the hay rested, so that part of the hay was ex- posed below the sills, and a small part of the barn was within the line of a right of way of an adjacent railway company, and about forty- five feet from its track, and a fire was communicated to the barn from a passing engine with a defective smoke-stack, and the owner of the barn took no means to protect it from fire ;^^° where the plaintiff, in an unsuccessful effort to prevent the spread of a fire, set hach fires, which were swallowed up in the main fire as it advanced ;^^° where a saw-mill was burned by fire negligently left in a quantity of sawdust by the lessee at the termination of his lease, and the lessor took no steps to watch the fire or to prevent it from breaking out, it appearing that he warned the superintendent of the lessee that it was dangerous to leave the mill in that condition, that sawdust would hold fire for any length of time, and that the lessee kept a watchman on the premises at the time, and the lessor had no knowledge that the watchman had been withdrawn until after the destruction of the mill;^^^ where the action was to recover damages for the destruction of certain shingle- bolts by a fire negligently set out and guarded by one clearing an ad- joining tract, and the bolts were left lying where they were manufac- tured, instead of being removed, as they might have been, as fast as manufactured, to the river, where they were to be delivered ;^^^ where the owner of logs left them on the ground, where they were cut, from February until August, in the midst of thick brush and weeds which extended to the highway, and they were destroyed by fire negligently set by the defendant in opening the street ;^^^ where the action was for the negligent destruction of hay by sparks from a steam thresher, and the owner of the hay was present in the field and made no protest against the use of the steam thresher, — it appearing that he had no special knowledge of the risk accruing to his hay from the use of it. Douglas, 100 Iowa 239; s. c. 69 N. "° Campbell v. McGregor, 29 N. B. W. Rep. 530. It is scarcely neces- 644. sary to remind the reader that the ''"Perley v. Eastern R. Co., 98 negligence of one whose property Is Mass. 414. destroyed by fire wrongfully set by '^ Stevens v. Pantlind, 95 Mich, another, is no defense by that other 145; s. c. 54 N. W. 716. to an action for damages, where '--Box v. Kelse, 5 Wash. 360; s. c. such negligence did not tend to 31 Pac. Rep. 973. cause the injury: Rabbermann v. '^ Tacoma Lumber &c. Co. v. Ta- Callaway, 63 111. App. 154. coma, 1 Wash. 12; s. c. 23 Pac. Rep. 929. VOL. 1 THOMP. NEG. 44 OOt) 1 Tlioir.p. Neg.J cake of dangerous agencies. or of the skill and competency of those in charge of it;^^* where the owner of grain, destroyed by fire from a steam threshing machine, left the stacks a sufficient distance apart to allow the introduction of a separator between them and to permit the engine to be placed on either side of the stacks, so as to take advantage of the direction of the wind, the stacks having been built several months before the fire and in the usual manner, and the owner of the machine having ex- amined the stacks when employed to do the threshing and having made no objection to their location ;''^^ where, under the circumstances last detailed, the owner of the grain which was destroyed by the fire, did not have a sufficient number of barrels of water present to put out the fire, the custom being to keep water only for the purpose of sup- 23lying the engine, and to sprinkle the ground around the engine to prevent fire from being communicated directly from the fire-box, — and the owner of the stacks not knowing that water might be needed because of the spark-arrester of the engine being defective j^^" where the fire originated at a camp fire built upon a prairie, a high wind blowing towards the premises of the plaintiff, but there being an inter- vening stream thirty feet in width, and he had taken no precautions against the destruction of his property by plowing fire guards around it according to the custom of the country ;^^^ where the owner of a -.aill, which was destroyed by fire communicated from a locomotive, vsed on a private railroad adjoining the mill, allowed refuse and lOombustible matter to accumulate around his mill, where he depos- ited it to fill up the low places, just as he was accustomed to do before the railroad was built ;^^^ where a farmeri, who employed the owner of a steam threshing machine to thresh his grain, did not know that the machine was not provided with proper spark-arresters, and was as- sured by the men in charge of the machine that it was safe, and hence failed to select a proper place for it to be set up where it could not communicate fire to his stacks ;^^'' where the owner of a building kept leaves, newspapers, kindling-wood, &c., in a part of his cellar, separated by a partition wall from another part in which telephone wires were being soldered, from which fire was communicated to the building through the negligence of a workman engaged in the solder- ing 130 >='»Moomey v. Peak, 57 Mich. 259; 363; s. c. 1 Am. St. Rep. 526; 27 N. s. c. 23 N. W. Rep. 804. W. Rep. 567. '^ HolmaTi V. Boston Land &c. Co., ^^ Ricliardson v. Douglas, 100 20 Colo. 7; s, c. 36 Pac. Rep. 797. Iowa 239; s. c. 69 N. W. Rep. 530. '™ Holmati V. Boston Land &c. Co., Compare Gillingham v. Christen, 55 20 Colo. 7; s, c. 36 Pac. Rep. 797. 111. App. 17. ^"Powers V. Craig, 22 Neb. 621; "" Southern Bell Teleph. &c. Co. v. s. c. 35 N. W. lLl•" Scott V. Hall, 16 Me. 326. ^"Needham v. King, 95 Mich, 303; ^''Polzen v. Morse, 91 Mich. 208; s. c. 54 N. W. Rep. 891. s.c. 51 N. W. Rep. 940. "» Ferguson v. Hubbell, 97 N. Y. ^^'See ante, §§ 25, 26. 507; reversing s. c. 26 Hun (N. Y.) '"Alpern v. Churchill, 53 Mich. 250. See also Wakeman v. Wheeler 607. Compare Ohio Valley R. Co. &c. Man. Co., 101 N. Y. 217; Boyle V. McKeen, 90 Pa. St. 122. v. State, 105 Ind. 499. 692 FIRE, OTHER THAN RAILWAY FIRE. [2d Ed. necessary for him to prove a proper title to ihe land, but evidence of actual possession under a claim of title, will be sufficient.^*' § 753. Damages Precluded by an Agreement with the Person Set- ting the Eire. — If one land-owner agrees with another land-owner that he will put out a fire started on the premises of the latter, and also take care of his own premises, but nevertheless the fire gets upon his own premises, causing damage, the agreement will be a defense to an action against the person setting the fire.^** § 754. Not Liable for Fire Set by One's Own Agent to Accomplish a Criminal Purpose of his Own. — A warehouseman is not responsible for the act of his agent in setting fire to his warehouse, for the pur- pose of destroying proof of the agent's defalcation. ^*° "' McClellan v. St. Paul &c. R. Co., "' Collins v. Alabama &c. R. Co., 58 Minn. 104; s. c. 61 Am. & Eng. 104 Ala. 390; s. c. 61 Am. & Eng. Rail. Cas. 509; 59 N. W. Rep. 978. Rail. Cas. 229; 16 South. Rep. 140. "* Roberson v. Morgan, 118 N. C. 391; s. c. 24 S. B. Rep. 667. 693 1 Thomp. Neg.J care of dangerous agencies. CHAPTER XXV. EXPLOSIVES, STEAM BOILEES, BLASTING. Section 758. Liability for damages caused by explosives kept on one's premises. 759. Degree of care demanded of one who keeps explosive sub- stances on his premises. 760. Whether the fact of an explo- sion is prima facie evidence of negligence. 761. Contributory negligence of the person injured by explosive substances. 762. Liability for damages caused by the explosion of steam boilers. 763. Whether the explosion of a steam boiler is prima facie evidence of negligence. 764. Liability for damages caused by blasting rock. 765. Decisions which proceed upon the principle of negligence. 766. As in railway construction. Section 767. Precautions to be taken in such blasting: giving warnings, covering the blast, etc. 768. Further as to the care to be used. 769. Rule where the persons blast- ing have been in the habit of giving notice. 770. The fact of an injury by blast- ing prima facie evidence of negligence. 771. Liability where the work is done by an independent con- tractor. 772. Whether injuries from concus- sion and vibration actionable. 773. Rule where the blasting is for- bidden by statute or ordi- nance. 774. Contributory negligence of per- son injured. 775. Other holdings with reference to injuries caused by blast- ing. § 758. Liability for Damages Caused by Explosives Kept on One's Premises. — The question of the liability of a property owner for dam- ages caused by explosive substances which he keeps on his premises, depends, at the outset, upon the inquiry whether the character of the substance and the situation of his premises are such as to make the keeping of the substance there inherently unlawful, that is to say, a nuisance per se. If so, he is liable as an insurer in damages for the proximate consequences of its exploding, without reference to any inquiry into the care which he has bestowed in keeping and guarding them.^ If the keeping of the dangerous substance, at the place or in ^ Myers V. Malcolm, 6 Hill (N. Y.) s. c. 8 Abb. (N. Y.) N. Cas. 355; 292; Heeg v. Licht, 80 N. Y. 579; 36 Am. Rep. 654; Chicago &c. R. 694 EXPLOSIVES, STEAM BOILERS, BLASTING. [2d Ed. the manner where the defendant keeps it, is prohibited by a statute or by a valid municipal ordinance, then the keeping of it will be a nuisance per se, by reason of the statute or ordinance; and if injury results therefrom, the keeper of it will be liable in damages, irrespect- ive of the question of negligence,^ provided, the person sustaining the damage was one of the class of persons for whose protection the statute was intended.^ In any case where, under the foregoing prin- ciples, the keeping of the explosive substances is a nuisance per se, it is, for juridical purposes, deemed also negligence per se, and any person injured thereby may recover damages therefor.* But, in the absence of an express provision of statute or municipal ordinance, the keeping of the explosive materials on one's premises will not, under all circumstances, constitute a nuisance per se; but the question whether the act is a nuisance will depend upon the place where the substances are kept, the quantity kept, the distance from adjoining occupiers, and other surrounding circumstances. In such cases it has been held that it ought to be left to a jury to say whether, from the dangerous character of the explosive substance, — in the particular case a powder magazine, — its proximity to other buildings, etc., it was in fact, a nuisance, — in other words, whether the keeping of it was actionable negligence in case of damage resulting therefrom to adjoin- ing owners." Where the mere keeping of the explosive upon the prem- Co. V. Glass, 34 111. App. 364; Laflin App. 364; Laflln &c. Powder Co. v. &c. Powder Co. v. Tearney, 131 111. Tearney, 131 111. 322; s. c. 21 N. E. 322; s. c. 21 N. E. Rep. 516; Saint Rep. 516. Mary's Woollen Man. Co. v. Brad- ^ Kinney v. Koopman, 116 Ala. ford Glycerine Co., 14 Ohio C. C. 310; s. c. 37 L. R. A. 497; 22 South. 522; s. c. 7 Ohio Dec. 582. See, on Rep. 593. the general doctrine, Cheatham v. ■* Myers v. Malcolm, 6 Hill (N. Y.) Shearon, 1 Swan (Tenn.) 213; s. c. 292. 55 Am. Bee. 735. The collection of ' Heeg v. Licht, 80 N. Y. 579; s. any substance on one's land of such c. 8 Abb. (N. Y.) N. Cas. 355; s. c. a nature as to subject adjoining pro- 36 Am. Rep. 654. Evidence under prietors to constant danger and which the negligence of a pipe line alarm from its proximity is a nui- company, in allowing naphtha to sance per se: Burton v. McClellan, escape from Its pipe Into a sewer, 2 Scam. (111.) 438; Westgate v. Carr, causing an explosion, should be sub- 43 111. 450; Weick v. Lander, 75 mitted to a jury: Lee v. Vacuum 111. 96; Cooper v. Randall, 53 111. 24. Oil Co., 54 Hun (N. Y.) 156; s. c. And so is the prosecution of any 26 N. Y. St. Rep. 814; 7 N. Y. Supp. dangerous employment, such as 426. Evidence under which it was blasting rocks: Hay v. Cohoes Co., held that the question of the negli- 2 N. Y. 159; s. c. 1 "Thomp. Neg., 1st gence of the defendant in exposing ed., p. 72; post, § 764. Petroleum Masting powder to a fire should oil is not a dangerous agency within have been submitted to a jury: the meaning of the above rule, so as Twohey v. Fruin, 96 Mo. 104 ; s. c. to make one who uses it an insurer 8 S. W. Rep. 784; 15 West. Rep. 241. against injuries which may proceed That a railroad company, storing from it: Cleveland &c. R. Co. v. explosives in a depot building hav- Ballentine, 84 Fed. Rep. 935; s. c. ing a defective chimney flue, by 56 U. S. App. 266; 28 C. C. A. 572. reason whereof the building takes ^Chicago &c. Co. v. Glass, 34 111. fire and there is an explosion injur- 695 1 Thomp. Neg.] care of dangerous agencies. ises of the plaintifE is not, under the foregoing principles, a nuisance per S6, or negligence per se, then it seems that, in order to support an action for the resulting damages, it is necessary to allege and prove that they were improvidently or negligently kept." It has been well held that to keep large quantities of dynamite and gunpowder in a wooden store, in a thickly settled portion of an incorporated town, where there are many buildings and persons in proximity, will create a liability for the burning of a building which is set on fire by firebrands cast upon it by an explosion of the dangerous materials, although this was caused by a fire which originated on the premises of a third per- son and without any fault of the owner of the explosives; but the ground of liability ought to have been nuisance, and not negligence.^ § 759. Degree of Care Demanded of One who Keeps Explosive Sub- stances on his Premises.* — One court has reasoned that the danger to be apprehended by the indiscriminate handling of highly explosive substances — in the particular case detonating caps — is so great and obvious that a high degree of care should be exercised to prevent them from falling into the hands of strangers.^ But this is only another mode of stating that the care and caution to be applied in guarding dangerous substances is a degree of care and caution proportionate to the danger to others from coming into contact with them. An- other court has applied to the same subject the standard of ordinary care and shill, by holding that the owner of premises is liable for damages to the personal property of a bare licensee upon the prem- ises, for an explosion of dynamite stored thereon, due to his want of ordinary care and skill in the management of the same.® Another court has correctly expressed the rule, by holding that one who handles or carries dangerous explosives, or keeps them on his premises, though not per se answerable for all injurious consequences which may pro- ceed from them, regardless of the degree of care and vigilance which ing the plaintiff's neighboring prop- 116 Ala. 310; s. c. 37 L. R. A. 497; erty, is liable for the injury, — see 22 South. Rep. 593. Denver &c. R. Co. v. Conway, 8 ' Rudder v. Koopman, 116 Ala. Colo. 1; s. c. 54 Am. Rep. 537. 332; s. c. 37 L. R. A. 489; 22 South. ' This was the rule declared in Rep. 601. Further as to negligence People V. Sands, 1 Johns. (N. Y.) in storing or keeping gunpowder, 78, which was an indictment for the etc., see Clarkin v. Biwabik-Besse- public nuisance of keeping a quan- mer Co., 65 Minn. 483; note to Jud- tity of gunpowder near certain son v. Giant Powder Co., 107 Cal. dwelling houses on a public street. 549; s. c. 29 L. R. A. 718, 724. That negligence in the keeping of ai This section is cited in § 523. gunpowder or in the manner of its 'Makins v. Piggott, 29 Can. S. C. keeping, is requisite to impose a 188. liability for damages resulting to 'Clarkin v. Biwabik-Bessemer another by an accidental explosion Co., 65 Minn. 483; s. c. 67 N. W. or fire, — see Kinney v. Koopman, Rep. 1020. 696 EXPLOSIVES, STEAM BOILEKS, BLASTING. [2d Ed. he may exercise concerning them, must use such care and prudence in guarding them as prudent and careful persons whose business it is to deal in such articles ordinarily exercise, which is greater than that required with respect to articles not commonly considered danger- ous.^" A good illustration of the rule which places the liability of the keeper of explosive substances on the footing of negligence, is found in a case where, during a fire at an oil works in a city, and in consequence of the acts of the fire department and of the negligence of the city, an explosion of escaping oil took place in one of the public sewers some distance below the oil works, causing damage to adjacent property, — the conclusion being that the oil company was not liable.^^ § 760. Whether the Fact of an Explosion is Prima Facie Evidence of Negligence. — Upon the question whether evidence that an explo- sion occurring in a building, unaccompanied by any explanation by the owner or by any evidence of care on his part, furnishes a presump- tion of negligence in an action to charge him, under the principle of res ipsa loquitur, the cases present a difference of opinion, — the Court of Appeals of New York holding that it does not;^^ and the Circuit Court of the United States, sitting in New York, holding that it does.^^ The presumption of negligence thus created is rebutted by "Henry v. Cleveland &c. R. Co., 67 Fed. Rep. 426. "Puchs V. St. Louis, 133 Mo. 168; s. c. 31 S. W. Rep. 115. Where the fumes of crude petroleum carried in a tank on a lighter used in the oil trade, escaped into a locker, which, on a night when the vessel lay with others at a pier in Jersey City, with no watchman on board, was forced open by a thief, who, exploring the locker with a lighted match, set fire to the gas, causing an explosion and a fire, whereby the lighter and an- other that lay alongside were de- stroyed, — it was held that the owner of the lighter was not liable, the proximate cause of the injury being, in the opinion of the court, the act of the thief, and not the negligence of the defendant: Sofleld v. Som- mers, 9 Ben. (U. S.) 526. Compare ante, §§ 54, 55. That a warehouse- man is not liable for the destruc- tion of goods stored in his house, by the explosion of twelve hundred pounds of gunpowder received by him in his capacity as a common carrier and stored in his warehouse pending its 7emoval by the con- signee, who is promptly informed of its arrival, in the absence of neg- ligence on the carrier's part, and of any municipal ordinance against such a storing of powder: Collins v. Alabama &c. Co., 104 Ala. 390; s. c. 16 South. Rep. 140; 61 Am. & Eng. Rail. Cas. 229. This decision ought to have been the other way. The storing of gunpowder in so large a quantity by a common car- rier in his warehouse ought to be regarded as negligence per se. That the risk of damage from an explo- sion in a dynamite factory was not assumed by the plaintiff, by the mere fact that he conveyed land to the proprietor of the factory to be used in that business, and that he continued to carry on his own busi- ness near by the factory after one explosion had occurred, — see Judson V. Giant Powder Co., 107 Cal. 549; s. c. 29 L. R. A. 718; 40 Pac. Rep. 1020. '^'Cosulich V. Standard Oil Co., 122 N. Y. 118; 33 N. Y. St. Rep. 287; 25 N. B. Rep. 259; 19 Am. St. Rep. 475; reversing s. c. 55 N.Y. Super. Ct. 384; reaffirmed in Reiss v. New York Steam Co., 128 N. Y. 103; s. c. 28 N. E. Rep. 124. ''Rose V. Stephens &c. Transi>, Co., 11 Fed. Rep. 438; The Sydney, 697 1 Thomp. Neg.] care of dangerous agencies. evidence showing that the business, in connection with which the ex- plosion took place, was not specially dangerous when prosecuted with reasonable care; that it was carried on under suitable regulations, arrangements, and equipments, and that reasonable care was exercised in its conduct; so that the only imaginable causes of the explosion were an accidental fire or some violation of the rules by the workmen of the defendant in smoking or carrying lights.^* § 761. Contributory Negligence of the Person Injured by Explo- sive Substances. — Notwithstanding the fact that the law makes the person who keeps highly dangerous explosives on his premises an insurer against damage to others which may be caused by them, or, at least, imposes upon him a very high degree of care and caution in guarding- them, — ^yet it is not to be inferred that the contributory neg- ligence of a person injured by them will not bar his right to recover damages for the injury, as in other cases ; for a man can not bring an injury upon himself by his own fault, and then make that injury the ground of a recovery of damages against another. Therefore, it was held that a railroad company was not liable for the explosion of torpedoes, whereby a personal injury was inflicted, where they were kept for the legitimate purposes of its business, in an untenanted section house, all the doors and windows of which were securely fast- ened, from which their removal was eifected by children who un- fastened 'and opened one of the windows for the purpose of stealing things inside. ^° It seems that the rule will not be severely applied against one who has been innocently injured by the explosive sub- stances, though guilty of some carelessness or inadvertence. Thus, where a servant had been placed in charge of powder and dynamite used for blasting, and had stored it in the master's blacksmith shop to 27 Fed. Rep. 119, 123; Warn v. Ba- ing such an accident. What was vis Oil Co., 61 Fed. Rep. 631. really held in one of the New York " Warn v. Davis Oil Co., 61 Fed. cases, above referred to, was that Rep. 631. The decision overlooks negligence on the part of a company the obvious conclusion that the de- engaged in the lawful business of fendant would be answerable for an oil refining can not be presumed explosion caused by any violation from the mere fact that burning oil of rules, or by the negligence of its from its yard ilowed down a pipe servants. In so far as it holds that the to a lighter loaded with petroleum defendant would not be answerable at its wharf, causing the lighter to for the unauthorized negligence of explode and destroy a vessel at an its servants it is a plain aberration, adjacent wharf: Cosulich v. Stand- The explosion in the case of The ard Oil Co., 122 N. Y. 118; s. c. 25 Sydney, 27 Fed. Rep. 119, was that N. E. Rep. 259; 33 N. Y. St. Rep. of a steam ioiler, in which case, as 287; 19 Am. St. 'Rep. 475; rev'g 23 we shall see (post, § 763), there is Jones & S. (55 Super. Ct.) 384. a presumption of negligence from But the decision seems untenable, the fact of the explosion, because ^^ Slayton v. Fremont &c. R. Co., there is a continual duty of inspec- 40 Neb. 840; s. c. 59 N. W. Rep. 510. tion and oare, to the end of prevent- 698 EXPLOSIVES, STEAM BOILERS, BLASTING. [2d Ed. preserve it from rain, and the blacksmith the next day lighted his forge without ascertaining whether the combustibles had been re- moved, the question of his contributory negligence was for the jury}^ It has been held that a hoy fifteen years old is not, as matter of law, guilty of such contributory negligence as will prevent a recovery, by scratching, in such a way as to cause its explosion, a highly explosive detonating cay which he has picked up under circumstances indi- cating that it may be handled with impunity.^'' § 762. Liability for Damages Caused by the Explosion of Steam- Boilers.^ — The doctrine of Rylands v. Fletcher/^ if admitted, would make the proprietor of every steam-boiler liable for damages happen- ing to his neighbor through the explosion of the same, irrespective of his negligence. This is not the law.^" He is liable, if at all, upon an allegation and proof of negligence; though under the best conception of the subject, the fact of the explosion is prima facie evidence of neg- ligence, sufficient to charge him in the absence of evidence exonerat- ing him from the imputation.^" The doctrine that such an action can proceed only upon an averment and proof of negligence, involves a thorough repudiation of the principle of Rylands v. Fletcher; since steam, when confined in a boiler, even more than water in a reservoir or in a mine, is pressing outward in all directions and seeking to es- cape confinement; and the consequences of its escape are, as a general rule, far more dangerous than those which attend an escape of water. But steam has come into such general use as a motive power, not only in the operations of commerce and manufactures, but even in those of agriculture, that a rule of law making those who. employ it insurers of the safety of others against damages arising from its use would not only be contrary to the analogies of the law, but would impose seri- ous restraints upon the most necessary and ben&ficial industries. Both the proprietor of machinery propelled by steam, and the engineer in "Birmingliain Water Works v. Rep. 24; reversing s. c. 35 N. Y. St. Hubbard, 85 Ala. 179; s. c. 4 South. Rep. 86; 12 N. Y. Supp. 557; Dob- Rep. 607; 7 Am. St. Rep. 35. bins v. Brown, 119 N. Y. 188; John " Maklns v. Piggott, 29 Can. S. C. Morris Co. v. Burgess, 44 111. App. 188. 27; Van Winkle v. American Steam a. This section is cited in §§ 704, Boiler Ins. Co., 52 N. J. L. 240; s. 798. c. 19 Atl. Rep. 472; 41 Alb. L. J. "Awte, § 695. 519; 19 Ins. L. J. 952. Circum- " Spencer v. Campbell, 9 Watts & stances under which the 'part own- S. (Pa.) 32; Losee v. Buchanan, 51 ers of a steam boiler were held not N. Y. 476; affirming s. c. 42 How. liable for an explosion caused while Pr. (N. Y.) 385; reversing s. c. 61 it was being operated by a third Barb. (N. Y.) 86; s. c. 1 Thomp. person under a contract, for his Neg., 1st ed., p. 47; Marshall v. own purposes: Young v. Bransford, Wellwood, 38 N. J. L. 339; Reiss v. 12 Lea (Tenn.) 232. New York Steam Co., 128 N. Y. 103; '"Post, § 763. s. c. 38 N. Y. St. Rep. 842; 28 N. E. 699 1 Thomp. Neg.] care of dangerous agencies. charge of such machinery, have the strongest motives for watching over its safety. The property of the one and the life of the other de- pend upon constant vigilance in this regard. These motives will, ordinarily, secure that degree of skill and attention which the safety of the public demands, without the aid of a rule making the proprietor liable, in any event, for damages resulting from an explosion. The Supreme Court of Pennsylvania, in a ease earlier than either of the above, put the liability of the proprietors of a steam mill, for damages caused to a customer by the bursting of its boiler, upon the true ground, — want of ordinary care and skill in its management. Whether they had been negligent in using it, was made to turn on the question whether they had notice of its insufficiency, or, what was the same thing, whether the circumstances were such that they were bound to know it; and it was ruled, with obvious propriety under the circum- stances, that they could not shelter themselves from responsibility un- der the plea that they were unacquainted with such machinery; that they applied to a competent and good machinist for the machine, paid him a sound price for it, and that he represented it as sufficient; "if they chose to make his opinion the rule of their conduct, in opposition to the evidence of their own senses, they had no right to visit the con- sequences of their folly upon their customers."^ ^ An early English case proceeds on the same ground. A steam-boiler and engine had been newly set up in a building of a sugar-refinery, upon which the defendant and his servants (not the owners- of the works) were experi- menting, with a view to perfect a process for refining sugar. While the boiler was thus under the management of the defendant and his servants, owing to some mismanagement of the latter, and to some de- fect in the materials of which it was composed, it exploded, tearing down an adjacent building. It was held that the owner of this build- ing might recover damages; that the action was properly brought against the person in charge of the boiler at the time of the explo- sion, and that it was not necessary to bring it against the owner of the building in which the boiler was.^^ Here, as in other cases, the measure of duty imposed upon the person maintaining the steam-boiler on his premises is that of ordinary or reasonable care, which is a care commensurate with the great risk to the persons and property of others from the explosion of such a dangerous machine. In the exer- cise of this care he is bound to furnish suitable instrumentalities and appliances to keep it free from defects which are dangerous, and to select for its operation and management skillful and prudent serv- ants ; but he is not an insurer of its absolute safety, nor a warrantor of ^ Spencer v. Campbell, 9 Watts & ''' Witte v. Hague, 2 Dow. & Ry. S. (Pa.) 32. 33. 700 EXPLOSIVKS, STEAM BOILERS, BLASTING. [2d Ed. the absolute competency of his employes.^^ Eeasoning upon this sub- ject, it has been justly observed : "In all cases in which any person undertakes the performance of an act which, if not done with care and skill, will be highly dangerous to the persons or lives of one or more persons, known or unknown, the law, ipso facto, imposes, as a public duty, the obligation to exercise such care and skill. The law hedges around the lives and persons of men with much more care than it employs when guarding their property; so that in this particular, it makes, in a way, every one his brother's keeper; and therefore it may be well doubted whether in any supposable case, redress should be with- held from an innocent person who has sustained immediate damage by the neglect of another in doing an act which, if carelessly done, threat- ens in a high degree one or more persons with death or great bodily harm. Such misfeasances, if they result fatally, are indictable crimes. Where they inflict particular damages upon individuals, they should, it is conceived, be actionable."^* The rule of liability thus declared extends not only to the owner of the boiler for whose profit it is being used, but also to every one who participates, in a substantial degree, in its management.^^ It has, accordingly, been held to extend to a company insuring a steam-boiler, which was in a building adja- cent to the mill of the plaintiff, whose mill was damaged by its explo- sion, — it appearing that the defendant cooperated actively with the owner of the boiler in its management, by examining it and testing it from time to time.^'^ § 763. Whether the Explosion of a Steam-Boiler is Prima Facie Evidence of Negligence.^ — Just application of the maxim res ipsa loquitur^'' requires the courts to hold that the mere fact of the explo- sion of a steam-boiler, unattended by any explanatory circumstances, is prima facie evidence of negligence, such as, unless rebutted, will charge the person keeping such boiler on his premises, or controlling, using, or operating the same, or participating actively therein, with ^ Jolin Morris Co. v. Burgess, 44 being reclclessly tested on the public 111. App. 27. street: Ochsenbein v. Shapley, 85 "•Beasley, C. J., in Van Winkle N. Y. 214. English Boiler Explo- V. American Steam Boiler Co., 52 N. sion Acts, 1882, § 84, and 1830, § 2, J. L. 240-247; s. c. 19 Atl. Rep. 472; requiring the owner of a boiler 41 Alb. L. J. 519; 19 Ins. L. J. 952. which had exploded to send notice ^ Compare, on this point. Young to the Board of Trade, not applica- v. Bransford, 12 Lea (Tenn.) 232, ble to boilers used for heating offices with the case next cited. and business premises: Smith v. ^=Van Winkle v. American Steam Muller (1894), 1 Q. B. 192. Boiler Co., supra. Contributory a This section is cited in §§ 704, negligence of a person injured by 760, 762. the explosion of a boiler which was "Ante, § 15. 701 1 Thomp. Neg.J care of dangerous agencies. damages accruing from such explosion ;^^ though the contrary has been held in some Jurisdictions.^" Where a railroad company has re- ceived notice of the unsafe condition of the boiler of one of its loco- motives, which explodes, injuring a person near its railroad, it can not defend itself against liability for damages on the ground of a want of time to repair the boiler after receiving such notice, where it might have avoided the explosion by discontinuing the use of it.^" A statute (since repealed) of the United States, "to provide for the better se- curity of passengers on board vessels propelled in whole or in part by steam," recited that "in all suits or actions against the proprietors of steamboats, for injuries arising to person or property from the burst- ing of the boiler of any steamboat, * * * the fact of such burst- ing * * * shall be taken as full prima facie evidence sufficient to charge the defendant, or those in his employment, with negligence, until he shall show that no negligence has been committed by him, or those in his employment."'^ This statute was construed as embracing injuries to a deck-hand on board the boat whose boiler exploded,'^ and also injuries to a passenger on another'boat.^' But, independently of this statute, the Supreme Court of ilinnesota expressed the view that the fact that the boiler of a steamboat exploded is of itself evidence of 28 Van Winkle v. American Steam Boiler Co., 52 N. J. L. 270; s. c.l9Atl. Rep. 472; 41 Alb. L. J. 519; 19 Ins. L. J. 552; John Morris Co. v. Bur- gess, 44 111. App. 27; The Reliance, 4 Woods (U. S.) 420; Fay v. David- son, 13 Minn. 523, 537. That the explosion of the steam boiler of a vessel, while in charge of her offi- cers and crew, makes a prima facie case of negligence, which, unless re- butted, entitles a passenger injured thereby, while exercising reasonable care, to recover damages, was held in The Reliance, 4 Woods (U. S.) 420. See also Fay v. Davidson, 13 Minn. 523, 537. This is merely a branch of the doctrine considered in a future volume, that the break- ing down from failure of the means of transportation of a carrier of passengers in any respect, is pre- sumptive evidence of negligence. -" Young V. Bransford, 12 Lea (Tenn.) 232; Reiss v. New York Steam Co., 128 N. Y. 103; s. c. 38 N. Y. St. Rep. 842; 28 N. E. Rep. 24; reversing s. c. 35 N. Y. St. Rep. 86; 12 N. Y. Supp. 557; Huff v. Austin, 46 Ohio St. 386; s. c. 21 N. E. Rep. 864; 22 Ohio L. J. 9. See also Cosulich v. Standard Oil Co., 122 N. Y. 118. This last case casts upon the defendant corporation the 702 burden of exonerating itself, and it then proceeds to decide that the affirmative evidence adduced by the defendant in its exoneration was sufficient to that end, — thus exer- cising the powers of a jury, whose duty it was, at least, to pass upon the credibility of the witnesses; but a great many judges forget the limi- tations of their own power and per- form the functions of jurors in ac- tions at law for damages, in this way. The case of Reiss v. New York Steam Boiler Co., 128 N. Y. 103, presents a collection of facts tending to show due care on the part of the proprietors of the boiler which exploded, upon which the Court of Appeals, reversing the court below, holds that a non-suit ought to have been granted. The infirmity of the case is that it denies the doc- trine that the explosion is itself prima facie evidence of negligence. ^ Louisville &c. R. Co. v. Lynch. 147 Ind. 165; s. c. 34 L. R. A. 293; 44 N. E. Rep. 997; rehearing denied in 46 N. B. Rep. 471. =' 5 U. S. Stat, at Large 304, chap. 191, § 13. '^ McMahon v. Davidson, 12 Minn. 357. » Fay V. Davidson, 13 Minn. 523, 537. EXPLOSIVES, STEAM BOILERS, BLASTING. [2d Ed. negligence sufficient to charge tlie owner of such boat with responsi- bility on the ground of negligence. It is said to be a case where the fact of the accident itself implies culpability, which the defendant must excuse, or pay damages.^* § 764. Liability for Damages Caused by Blasting Rock.^ — Whether one who sustains an injury, in his person or his property, by the blast- ing of rock by the owner or occupier of coterminous premises, with powder or dynamite, will have an action for damages irrespective of the question of negligence in making or firing the blast, or in giving timely warning of an intention to fire it, — will, in the view taken by many of the courts, depend upon the nature of the injury. De- cisions can be collected responding to the following three propositions : 1. If, by the firing of the blast, dirt or stones are precipitated upon the property of an adjoining owner, and especially against his dwelling- house, injuring such property or dwelling, — he may recover damages irrespective of the question of negligence, since this is a trespass upon his property.^" This rule is based upon the sanctity which the ancient common law attached to the ownership and occupancy of real prop- erty, and especially to the sanctity which that law attached to one's dwelling-house, which was deemed to be his castle. It proceeds upon the view that the carrying on of an employment so dangerous near land of another, keeping him in continual danger and alarm is a nuisance per sej so that if any damage happens to him thereby he may recover, irrespective of the question of diligence or negligence, in carrying on the dangerous work. If it is a nuisance per se, then, if the existence of negligence is necessary to support an action for the dam- age, it is for the same reason negligence per se.^^ It proceeds upon a view strictly resembling t-hat which prevailed in the leading case of Rylands v. Fletcher;^'' which is that where a man, for his own pur- poses, does anything upon his own premises which results in a forcible invasion of the property and possession of another, by whatsoever sub- stance, that invasion is deemed a trespass for which an action of tres- pass will lie at common law; and it was immaterial whether the in- vading' substance was escaping water which had been artificially col- ^IMd. Compare Carpue v. Lon- c. 1 Thomp. Neg., 1st ed., p. 76; St. don &c. R. Co., 5 Q. B. 747; Hoi- Peter v. Denison, 58 N. Y. 416; brook V. Utica &c. R. Co., 12 N. Y. Georgetown &c. R. Co. v. Eagles, 9 236; Curtis v. Rochester &c. R. Co., Colo. 544; Colton v. Onderdonk, 69 18 N. Y. 534. Cal. 155; s. c. 58 Am. Rep. 556. a This section is cited in §§ 742, Compare Banner v. Atlantic Dredg- 758, 772, 1192. ing Co., 58 Hun (N. Y.) 359; s. c. =» Hay V. Cohoes Co., 2 N. Y. 160; s. reversed, 134 N. Y. 156. c. 1 Thomp. Neg., 1st ed., p. 72; Tre- ^ Ante, § 694. main v. Cohoes Co., 2 N. Y. 163; s. ^ Ante, § 695. 703 1 Thomp. Neg.J care of dangeeous agencies. lected, or cattle trespassing damage feasant, or dirt or stones thrown upon the land of an owner or occupier and especially against his house by the act of the adjoining owner in firing blasts on his own land. Such being the nature of the rule, it has been held that where a con- tiguous land-owner, in digging a canal, blasted rocks in such a manner as to cast fragments of them against the plaintiff's house, he was en- titled to recover damages for the injury, without reference to the question whether the work of excavating had been done in a careful manner or not ; so that evidence to the effect that it had been done "in the most careful manner" was not admissible, — there being no claim to recover exemplary damages.^* 2. Where the work of blasting is done in a situation where it is necessarily dangerous to the public, as in a thickly settled portion of a city, whereby a person is killed or in- jured, damages are recoverable for such injury or death without proof of negligence, and notwithstanding proof that the person or corpora- tion so firing the blast, employed skillful and experienced men and exercised the highest degree of care. The reason is that in such a case the work itself is so inherently dangerous that the doing of it, no matter how carefully, is of itself negligence ; so that no amount of care in doing the negligent act will excuse the actor from the responsibility of the consequences which grow from it.^° The person firing a blast under such circumstances will be liable to an adjacent owner whose dwelling is thereby injured, whether the injury proceed from the im- pact of rocks thrown against it, or from atmospheric concussion.*" 3. In all other cases liability will attach to the person or corporation carrying on the dangerous employment where the work has been negligently done, — as, for example, where care has not been taken to warn persons in the vicinity that the blast was about to be fired, in order that they might seek places of safety;*^ or where one who, in ex- ^ Tremain v. Cohoes Co., 2 N. Y. suited from the firing of the blast 163 ; s. c. 1 Thomp. Neg., 1st ed., p. in question, even if it used the high- 76. est and utmost care and skill in ^° Colton V. Onderdonk, 69 Cal. firing and exploding it." In ap- 155; Munro v. Pacific Coast &c. Co., proving these instructions the court, 84 Cal. 515; s. c. 24 Pac. Rep. 303. speaking through Mr. Justice In this case the giving of the fol- Thornton, said: "We are of opinion lowing instructions was judicially that no degree of care will excuse approved: "It is no defense or an- a person where death was caused swer to an action of this character by such explosion, from responsi- that defendant, in exploding the blast bility for it." IMd., p. 519. in question, used and employed " Colton v. Onderdonk, 69 Cal. 155. skillful and experienced men, and " Blackwell v. Moorman, 111 N. C. in everything appertaining to blast- 151; s. c. 17 L. R. A. 729; 16 S. E. ing it used and exercised the high- Rep. 12; Stephens v. Martins (Pa.), est degree of care; and I charge you 46 Phila. Leg. Int. 311; 20 Pitts. L. that defendant is liable to damages J. (N. S.) 11; 23 W. N. C. 475; 17 for the death of said Michael Stan- Atl. Rep. 242. ton, if you find that his death re- 704 EXPLOSIVES, STEAM BOILERS, BLASTliSTG. [2d Ed. cavating rock for a railroad cut, employs very powerful blasts where the rock could have been moved with smaller blasts, though with less profit, — thereby damaging a house two hundred feet away.*- § 765. Decisions which Proceed upon the Principle of Negli- gence. — An examination of the decisions where damages have been claimed for injuries sustained by blasting, will show that by far the greater number of them proceed upon the inquiry whether there was negligence either (1) in doing the work at all, in the place where and at the time when it was done, — that is to say, whether the work was a nuisance, and consequently in theory of law negligence per se; (2) whether, although not a nuisance per se or negligence per se, it was done in a negligent manner, — that is to say, without taking those pre- cautions necessary to safeguard the persons or property of third per- sons in the vicinity. It is obvious, upon a moment's reflection, that the work of blasting rocks, being absolutely necessary in excavating through beds of rock, in mining, in digging wells, in excavating foundations for buildings, in improving roads and streets, in digging canals, and in building railways, — can not under all circumstances be regarded as a nuisance per se and condemned as being negligent as matter of law.*^ On the other hand, it must be regarded — and the decisions so regard it — as a work which one proprietor may lawfully do upon his own land, provided he takes due care to avoid injuring persons or property in the vicinity, and subject to his obligation to pay damages for any injury which he does in case his blasting involves a direct invasion of the premises of an adjacent proprietor.** '= Newell V. Woolfolk, 91 Hun (N. be enjoined where it is admitted Y.) 211; s. c. 36 N. Y. Supp. 327; 71 that it can not be done without in- N. Y. St. Rep. 129. jury to the adjacent dwelling of the "Blaclcwell v. Lynchburg &c. R. plaintiff: Brennan v. Schreiner, 28 Co., Ill N. C. 151; s. c. 16 S. E. Rep. Abb. N. Cas. (N. Y.) 481. And a 12; 17 L. R. A. 729; Emry v. Roan- court of equity will limit and re- oke Nav. &c. Co., Ill N. C. 94; s. c. strain the person undertaking to do 17 L. R. A. 699; 46 Alb. L. J. 464; the blasting, by compelling him 16 S. E. Rep. 12; French v. Vix, 2 either to take such precautions as Misc. (N. Y.) 312; s. c. 50 N. Y. St. will secure the plaintiff from in- Rep. 577; 30 Abb. N. Cas. 158; 21 jury, or else desist from the blast- N. Y. Supp. 1016; Wiener v. Ham- ing entirely: Brennan v. Gelleck, mell, 14 N. Y. Supp. 365; s. c. 39 supra. That blasting of rock on N. Y. St. Rep. 198. It will, there- one's own premises four hundred fore, not be enjoined on the footing feet from the boundary is not per of its being a nuisance per se, or se a nuisance or unlawful,— see negligence per se, where the evi- Klopsch v. Donald, 4 Wash. 436; dence shows that it can be carried s. c. 31 Am. St. Rep. 936; 30 Pac. on without danger to adjacent prop- Rep. 991. erty or persons, provided the proper " It has been held that a person precautions are taken: Brennan v. can recover damages for the tem- Gelleck, 30 Abb. N. Cas. (N. Y.) porary interruption of his business 166, note; Rafter v. Tagliabue, 29 and for the loss of time of his work- Abb. N. Cas. (N. Y.) 1. But it will men, caused by the blasting of rock VOL. 1 THOMP. NEG. 45 705 1 Thomp. Neg.] cake of daxgekous agencies. § 766. As in Railway Construction. — Excavating by Masting is one of the approved methods of railway construction; and the prudent use of this method of removing hard materials is always deemed to have been, in the contemplation -of the parties and of the jury or com- mission in assessing damages for the right of loay, a necessary incident to the privilege. Xevertheless, where damage is done to the land of the owner adjacent to that within the condemned boundary, if it re- sult from managing or handling the explosive material carelessly or unskillfully, or from the unnecessary use of such as is so powerful that injury ought to be expected to follow as a natural or probable conse- quence, — the corporation will be answerable in a new action. *° But, although the railway company may, by condemning the land and pay- ing the assessed damages for its right of way, have acquired the right thus to throw stones, by blasting, on adjoining land, — it is, neverthe- less, their duty to remove the stones thus thrown upon the adjoining land, within a reasonable time; and if they fail so to remove them, they will be liable for damages sustained by the owner of the land in consequence of such neglect.*® Other courts, on the other hand, pro- ceed upon the ground that the legal possession, by a railroad company, of the right of way over the lands of another, and of authority to con- struct and operate its railway thereon, do not authorize or sanction a direct intrusion or trespass upon adjacent land; so that if, in blasting upon its right of way, the railroad company causes rocks or debris to be thrown upon adjacent land, it must answer to the land-owner or occupier for the damages as for a trespass." The principle here ap- pealed to is substantially that of Bylands v. Fletcher, already consid- ered.*^ It has been expressed by saying : "In general, if a voluntary act, lawful in itself, may naturally result in the injury of another, or the violation of his legal rights, the actor must, at his peril, see to it that such injury or such violation does not follow, or he must expect to respond in damages therefor; and this is true, regardless of the by a contractor of a public work, in ages is the value of the work which the immediate vicinity of the plaint- the negligence of the defendant pre- iff's buildings, in such a neglectful vented from being done: Hunter v. manner as to throw pieces of rock Farren, supra. against the buildings, and to cause " Blackwell v. Lynchburg &c. R. the plaintiff's workmen to leave Co., Ill N. C. 151, 153; Sabin v. Ver- their work, under a reasonable ap mont &c. R. Co., 25 Vt. 363; Dodge prehension of danger; and further, v. County Commissioners, 3 Mete. that a payment for damage to the (Mass.) 380. buildings is no bar to the action for " Sabin v. Vermont &c. R. Co., 25 such other damages, where the pay- Vt. 363. ment is made with the understand- " Georgetown &c. R. Co. v. Eagles, ing that the damage caused by the 9 Colo. 544. So in the case of a interruption of the plaintiff's work contractor of work upon a canal was not included in the settlement: owned by the State: St. Peter v. Hunter v. Farren, 127 Mass. 481. Denison, 58 N. Y. 416. In such a case the measure of dam- "Ante, § 695. 706 EXPLOSIVES, STEAM BOILEES, BLASTING. [2d Ed. motive or the degree of care with whicli the act is performed."*' It has been held by some of the ISTew England courts that injuries to adjacent houses, and other real property, caused by a railway company in blasting rocks, in the necessary work of constructing its road, fall within the category of lawful acts authorized by its charter, and are not to be deemed wrongful acts for which an action will lie as for a tort; but that the damages thereby occasioned are to be assessed by commissioners, under the statute providing for the assessment of dam- ages caused by the taking and damaging of property in the making and maintaining of such roads. ^^ But this does not include those damages which are not necessarily incident to the doing of the act thus authorized and made lawful. Thus, if such a company, in so blasting rocks, scatters loose stones upon the land of an adjacent proprietor, it owes him the duty of removing them. A jury, in assessing his land- damages upon the laying out of the road, may well anticipate that the company will perform this duty, and hence may not include damages for its non-performance in their award ; and it has been held that they can not so include them.^"- It is reasonable, therefore, that a failure to perform this duty is to be ascribed to the class of negligent or other- wise wrongful acts which are to be redressed by actions of tort ; and it has been so held.^^ § 767. Precautions to be Taken in Such Blasting : Giving Warn- ings, Covering the Blast, etc. — "Where there is testimony tending to show that injuries done to the adjacent land, or the buildings on it, were due to the use of unsafe or unnecessarily violent explosive ma- terial, or were caused by the careless management of the materials in common use,, and also contradictory evidence, — it is for the jury to find the facts upon which the question of negligence depends. Where a human being is killed or injured at his dwelling on his own land by a blast on the right of way, condemned out of the same tract, in addi- tion to passing upon the questions whether proper material was used and handled with skill, the testimony may make it material for the jury to determine whether the agents of the corporation had been accustomed to give the injured party a signal before igniting the powder, and if so, whether such notice was given before the explosion which caused the injury. * * * Where a corporation, by habitu- " Georgetown &c. R. Co. v. Eagles, Sabin v. Vermont &c. R. Co., 25 Vt. 9 Colo. 544, 546, opinion of Helm, 363. J. Compare Bellinger v. New York " Whitehouse v. Androscoggin R. Cent. Railroad, 23 N. Y. 42. Co., 52 Me. 208. '" Dodge v. County Commissioners. ''- Sabin v. Vermont &c. R. Co., 25 3 Mete. (Mass.) 380; Whitehouse v. Vt. 363. Androscoggin R. Co., 52 Me. 208; 707 1 Thomp. Neg.] care of dangerous agencies. ally giving some warning of approaching danger, whether from pass- ing trains or expected explosions, induces the public to act upon the idea that the usual signal will be giren at the accustomed time, the failure to meet this just and natural expectation, which has arisen from observation of the custom of the company's agents, will subject the corporation to liability for an injury inflicted on one who puts himself in danger because he is misled by such omission." °^ In addi- tion to the foregoing, it is a sound conclusion that persons engaged in blasting who know, or by reasonable diligence could know, that stones thrown by the blasts have been falling on or around a neighboring dwelling so as to imperil the safety of the occupants, must protect them by covering the blast, if this can be done at a reasonable cost, and, if not, must give actual warning to those who are in peril. °* This obligation to give warning arises in every ease where it is prob- able that persons may be in the vicinity of the blast who may receive injury unless afforded time to seek places of safety." Nor is an adjacent householder bound to assume, until he has personal notice or knowledge, that the defendant is about to fire a blast in such a man- ner as will injure him.^* The fact that the blasting by which a per- son is injured is done by the actor while lawfully engaged in the im- provement of a public road, does not release him from the duty of warning travellers that he is about to fire a blast ;°' though there is a regrettable decision to the effect that contractors engaged in blasting for the improvement of navigation are under no obligation to give such a warning to an approaching -vessel, where the time for the blast- ing is fixed and' the vessel could easily remain at a safe distance until it is over.'' Another court has let down the doctrine by reasoning •"Blackwell v. Lynchburg &c. R. giving warning). The fact that Co., Ill N. C. 151, 153, opinion by one's own employer failed to give Avery, J. him warning of a blast about " Blackwell v. Lynchburg ' &c. R. to be fired by another contractor, Co., Ill N. C. 151; s. c. 17 L. R. A. would not, of course, prevent him 729; 16 S. B. Rep. 12. from recovering damages from such "'Cameron v. VandegrifE, 53 Ark. other contractor: St. Peter v. Deni- 381; s. c. 13 S. "W. Rep. 1092; Steph- son, 58 N. Y. 416. ens V. Martins, 23 W. N. C. (Pa.) '"St. Peter v. Denison, supra. 475; Mills v. Wilmington City R. " Mills v. Wilmington City R. Co., Co., 1 Marv. (Del.) 269; s. c. 40 1 Marv. (Del.) 269; s. c. 40 Atl. Atl. Rep. 1114; Blackwell v. Lynch- Rep. 1114; Blackwell v. Lynchburg burg &c. R. Co., Ill N. C. 151, and &c. R. Co., Ill N. C. 151, and note note to same in 17 L. R. A. 729; to same in 17 L. R. A. 729. Beauchamp v. Saginaw Min. Co., 50 °* Smith v. Day, 86 Fed. Rep. 62. Mich. 163; s. c. 45 Am. Rep. 30; This decision holds that the right St. Peter v. Denison, 58 N. Y. 416; to use a public river as a public s. c. 17 Am. Rep. 258; Wright v. highway is subordinate to the right Compton, 53 Ind. 337; Colton v. On- of contractors engaged under the derdonk, 69 Cal. 156; s. c. 58 Am. government in improving the river; Rep. 556; Gates v. Latta, 117 N. C. so that a passenger on a vessel who 189; s. c. 23 S. B. Rep. 173 (blasting goes upon that part of the river in a public road at dusk without which is being improved, does so as 708 EXPLOSIVES, STEAM BOILERS, BLASTING. [2d Ed. that the obligation to warn persons in the vicinity of an intended blast rests upon the person about to fire the blast, only where prudence re- quires such warning to be given 5°" which is tantamount to holding that, whether the person making the blast was guilty of negligence in firing it without giving warning, will be generally a question for a jury, since what prudence requires is generally such a question; and the same court has so held.*" Another court has discovered circum- stances under which the failure to give such notice will not be negli- gence.*^ The sufficiency of the notice will generally present a ques- tion of fact for the jury;"^ though there are cases where the court will decide, as matter of law, that the notice was insufficient.*^ § 768. Further as to the Care to be Used. — EeeoUecting that "ordi- nary care" is a relative term, exacting that a person shall take for the safety of others whatever precautions the nature of his employment a mere licensee, and assumes the risk of a danger incident to tlie worli of the contractors, provided they are doing the work in the usual manner, — that is to say, by blast- ing; that, where such contractors are able to work but a short time in the year during low water, and the place where they are at work is remote from habitations, they are under no duty of covering the blasts merely because a vessel loaded with passengers may happen that way; since the passengers are mere licensees, whose license is sub- ordinate to that of the contract- ors,- — the license of the latter being a license to kill the former: Smith v. Day, 86 Fed. Rep. 62. " Herrington v. Lansingburgh, 110 N. Y. 145. ™ Driscoll V. Newark &c. Cement Co., 37 N. Y. 63r; 97 Am. Dec. 761. °' The holding in substance was that where excavations have been in progress in the vicinity of plaint- iff's shop for several weeks, and dy- namite blasts were of frequent oc- currence, the defendants were not negligent in failirig to apprise him of intended blasts, as they were events which, under the circum- stances, he should have anticipated: Mitchell v. Prange, 110 Mich. 78; s. c. 3 Det. L. N. 320; 34 L. R. A. 182; 67 N. W. Rep. 1096. "- Driscoll V. Newark &c. Cement Co., 37 N. Y. 637; s. c. 97 Am. Dec. 761; Beauchamp v. Saginaw Min. Co., 50 Mich. 163; s. c. 45 Am. Rep. 30. "Logansport v. Dick, 70 Ind. 65; s. c. 36 Am. Rep. 166. In this case the court holds that one who, in ex- cavating a trench for a sewer under a contract which required him, in all cases where blasting was neces- sary, to cover the blast with brush or timber sufficiently to prevent in- jury to persons or property, is under no obligation to notify persons at a distance of several hundred feet that he intends to fire a blast. The decision is not a creditable one. The obligation assumed by his contract with the city of covering the blast could not absolve him from his duty arising at common law to take every reasonable precaution for the pro- tection of persons in the vicinity; and, although they may have been several hundred feet away, the fact that they were injured is evidence that they might have been injured, — a result which he ought to have foreseen. That the frightening of horses is one of the dangers intend- ed to be guarded against by the statute of Maine, requiring reason- able notice of the explosion of a blast, — see Wadsworth v. Marshall, 88 Me. 263; s. c. 32 L. R. A. 588; 34 Atl. Rep. 30. That a person who has passed the point nearest the blast and is receding from it, may be a person "approaching" it within the meaning of the statute: Wads- worth V. Marshall, 88 Me. 263; s. c. 32 L. R. A. 588; 34 Atl. Rep. 30. 709 1 Tliomp. Neg.J care of dangerous agencies. suggcsts/^a- -^^g fin^ that it has been held that the fact that a corpora- tion blasting rocks on its own land, in a quarry forty feet below the surface of the ground, with sand-blasts, — which are not ordinarily dangerous, — failed to warn persons passing by over its land that a blast was about to be fired, was evidence of negligence to go to a jury ; and that the fact that the person injured received the injury from the blast while passing along a footpath over the defendant's land, as he for years had been accustomed to do, was not evidence of contributory negligence sufficient to warrant a nonsuit. °* But if the resulting in- jury is to the freehold or possession of another, it has been seen that the question of negligence does not arise. A man may rightfully claim an immunity from such invasions of his right of property or pos- session, irrespective of the question v/hether the person making such invasion was in the exercise of ordinary care or not.^' But it does not follow from this that an owner of land, e. g., a railway company, will be liable for injuries to another's freehold or possession by blasting done on his land by an independent contractor; the act is not a nui- sance in the sense which makes the proprietor of the premises on which it is committed liable for its consequences.^" § 769. Er.Ic where the Persons Blasting have been in the Habit of Giving Notice. — Upon the clearest grounds if the persons engaged in the work of blasting have been in the habit of giving notice to other persons in the vicinity whenever they intended to fire a blast, the omission of this notice, in a particular instance, will be in itself negli- gence ; since such persons will be justified in relying upon the assump- tion that the duty of giving the customary warning will not be omit- ted. °' The omission of such a warning is negligence by the analogy of the rule in the case of signals at railway crossings ; or lanterns hung in the public streets at night where there are excavations. =%An 3 Term Rep. 51. 760 VENDING OK SHIPPING DANGEROUS THINGS, ETC. [2d Ed. sent, either from his possession or the defendant's; for we are to presume that the plaintiff acted lawfully, and was not a trespasser, unless the contrary appear. We therefore think, that as there is a fraud, and damage, the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time as one of its results, the party guilty of the fraud is responsible to the party injured. We do not decide whether this action would have been maintainable if the plaintiff had not known of and acted upon the false representation; nor whether the defendant would have been re- sponsible to a person not within the defendant's contemplation at the time of the sale, to whom the gun might have been sold or handed over. We decide that he is responsible, in this case, for the conse- quences of his fraud whilst the instrument was in the possession of a person to whom his representation was, either directly or indirectly, communicated, and for whose use he knew it was purchased." A seller of a second-hand steam-boiler falsely and fraudulently repre- sented to the buyer that it had been used just enough to be thoroughly tested and was better and tougher than a new one would be. The boiler exploded while being used by the buyer, in consequence of in- herent defects of which the seller was aware. It was held that the seller was liable for the damages.'^ A merchant sold to a customer cartridges of a different kind from those for which the customer in- quired, but of a similar appearance. They exploded prematurely, while the customer was using them in a way which would have been proper if they had been cartridges of the kind which he supposed he was purchasing. It was held that the seller was liable for the dam- § 828. Decisions which Extend the Same Doctrine to Negligence. — Decisions are found which extend the doctrine ofHhe preceding section to cases where mere negligence is to ie substituted in the place of fraud. Thus, where a person purchased of a chemist a bottle of hair- wash, to be used by his wife in dressing her hair, and his wife used it and thereby received injuries, in consequence of its having been com- pounded of deleterious substances, the Court of Exchequer, in con- formity with the doctrine of the last-cited case, held that the pur- chaser and his wife were entitled to recover damages. Kelly, C. B., said: "Quite apart from any question of warranty, express or im- plied, there was a duty on the defendant, the vendor, to use ordinary care in compounding this wash for the hair. Unquestionably there "Fitzmaurice v. Puterbaugh, 17 ''Smith v. Clarke Hardware Co., Ind. App. 318; s. c. 45 N. B. Rep. 100 Ga. 163; s. c. 39 L. R. A. 607; 524. 28 S. E. Rep. 73. 761 1 Thomp. Neg.] care of dangerous agencies. was such a duty towards the purchaser, and it extends, in my judg- ment, to the person for whose use the vendor knew the compound was purchased." Cleasby, B., said: "Substitute the word 'negligence' for 'fraud,' and the analogy between Langridge v. Levy and this case is complete."^^ This last case, it is thought, must be accepted as overruling the doctrine of a previous case determined in the Exchequer in 1851, where Baron Parke (who, it will be remembered, delivered the judgment in Langridge v. Levy) held, in substance, that the doc- trine of Langridge v. Levy did not apply, in the absence of knowledge, on the part of the vendor, of the defect which caused the injury; in other words, it applied in ease of fraud, and not in case of negligence. In this case, Longmeid v. Holliday,^^ Baron Parke, in giving the judgment of the court, said : "There is no doubt that if the defend- ant had been guilty of a fraudulent representation that the lamp was fit and proper to be used, knowing that it was not, and intending it to be used by the plaintiff's wife, or any particular individual, the wife (joining her husband for conformity) or that individual would have had an action for the deceit, upon the principle on which all actions for deceitful representations are founded, and which was strongly illustrated in the case of Langridge v. Levy,^^ viz., that if any one knowingly tells a falsehood, with intent to induce another to do an act which results in his loss, he is liable to that person in an action for deceit. But the fraud being negatived in this case, the action can not be maintained on that ground by the party who sustained damage. There are other cases, no doubt, besides those of fraud, in which a third person, though not a party to the contract, may sue for the dam- age sustained, if it be broken. These cases occur where there has been a wrong done to that person for which he would have had a right of action though no such contract had been made. As, for example, if an apothecary administered improper medicines to his patient, or a surgeon unskillfully treated him, and thereby injured his health, he would be liable to the patient, even where the father or friend of the patient may have been the contracting party with the apothecary or surgeon ; for, though no such contract had been made, the apothecary, if he gave improper medicines, or the surgeon, if he took him as a patient and unskillfully treated him, would be liable to an action for a misfeasance. "^ A stage-coach proprietor, who may have contracted with a master to carry his servant, if he is guilty of neglect, and the servant sustained personal damage, is liable to him ; for it is a misfeas- ^' George v. Skivington, L. R. 5 ^ Pippin v. Sheppard, 11 Price •Exch. 1. 400; Gladwell v. Steggall, 8 Scott =*6 Exch. 761-765. 60; 5 Bing. N. C. 733. ^ 2 Mees. & W. 519 ; in error, 4 Mees. & W. 337. 762 VENDING OR SHIPPING DANGEROUS THINGS, ETC. [2d Ed. ance towards him if, after taking him as a passenger, the proprietor or his servant drives without due care, as it is a misfeasance towards any one travelling on the road. So, if a mason contract to erect a bridge or other work in a public road, which he constructs, but not according to the contract, and the defects of which are a nuisance to the highway, he may be responsible for it to a third person who is injured by the defective construction, and he can not be saved from the consequences of his illegal act, in committing the nuisance on the highway, by showing that he was also guilty of a breach of contract, and responsible for it. And it may be the same when any one delivers to another, without notice, an instrument in its nature dangerous, or under par- ticular circumstances, — as, a loaded gun, which he himself loaded, — and that other person to whom it is delivered is injured thereby, or if he places it in a situation easily accessible to a third person, who sustains damage from it. A very strong case to that effect is Dixon v. Bell.^'' But it would be going much too far to say that so much care is required in the ordinary intercourse of life between one individual and another, that if a machine, not in its nature dangerous, — a car- riage, for instance, — but which might become so by a latent defect entirely unknown, although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage accruing by the use of it. Could it be contended with justice, in the present case, that if the lamp had been lent or given by the defendant to the plaintiff's wife, and used by her, he would have been answerable for the personal damage which she sus- 'tained, the defendant not knowing or having any reason to believe it was not perfectly safe, although liable to the party to whom he con- tracted to sell it, upon an implied warranty that it was fit for use, so far as reasonable care could make it, for the breach of that contract, as to all damage sustained by him? We are of opinion, therefore, that if there had been in this case a breach of contract with the plaint- iffs, the husband might have sued for it ; but there being no misfeas- ance towards the wife, independently of the contract, she can not sue and join herself with her husband. Therefore a nonsuit must be entered." In George v. Skivington/^ Chief Baron Kelly endeavored to distinguish Longmeid v. Holliday, by stating that the jui'y found bona fides and no negligence on the part of the vendor. This was an error; the verdict did not negative the existence of negligence.^" •' 5 Mau. & Sel. 198. the rules applicable to fraud and "' L. R. 5 Exch. 1. breach of warranty, rather than on ™ The books disclose other cases those relating to negligence. Dam- of injuries inflicted In the sale of ages were given for selling a dis- p.oxious articles; but they turn, upon eased animal, whereby others were / ().3 1 Thomp. Neg.] care of dangekous agencies. § 829. No Kecovery on Any Theory in the Absence of Negligence, Fraud or Other Wrong. — There can be no recovery against the person manufacturing or vending the article from which the injury has pro- ceeded, on any of the foregoing theories, "in the absence of negligence, fraud, or some positive wrong in manufacturing it and selling it. This is well illustrated by a modern case where an action was brought against a manufacturer of wools to recover damages sustained by the plaintiff in handling the wools, on account of poisonous dyes used in coloring them. The evidence adduced in behalf of the p)laintifE went no further than to show that the defendant's corporation used an article for dyeing its cloths which was the most common mordant used in wool dyeing, which was also very extensively used in dyeing cotton stockings black, and which, so far as then known, had never caused injury to any one who merely handled the cloths, and which the defendant did not know or suppose, or have any reason to know or suppose, to be injurious. Here, although there was evidence tend- ing to show that, in point of fact, the plaintiff was injured by merely handling the cloths, this was not a result which the defendant was bound or ought to have contemplated as likely to happen. In other words, the defendant had been guilty of no negligence in using that species of dye, and consequently the action could not be sustained.*" A groceryman purchased bags of coffee from a coffee broker and sent them directly to another person for^ roasting, without having had the bags in his possession at all, and without knowing of any foreign sub- stance therein. A stone weighing twenty-six pounds had been placed by some third person in the middle of one of the bags. This came in contact with the machine of the coffee roaster, damaging it. It' was held that the groceryman, being guilty of no negligence, was not liable for the damage.*^ On the same theory, it was held that a drug- gist was not liable for damages on the footing of negligence in hand- ing to a regular customer a bottle containing poison, asked for by the latter, under the erroneous supposition on the part of both that it had been prepared for him.*^ Upon the question what will be evidence of negligence in such a case, it has been observed by a judge of great distinction : "That such error might occur without fault on the part infected, in Mullett v. Mason, L. R. (Q. B.) 266; Dingle v. Hare, 7 C. B. 1 C. P. 559. But where a person (N. S.) 145; s. c. 29 L. J. (C. P.) sold a glandered horse without dis- 143; CoUen v. Wright, 7 Bl. & Bl. closing the existence of the disease, 301; s. c. 26 L. J. (Q. B.) 147. and the purchaser's horses were '" Gould v. Slater Woollen Co., 147 thereby infected, it was held that Mass. 315; s. c. 6 N. Eng. Rep. 599; damages could not be recovered; 17 N. E. Rep. 531. the rule of caveat emptor applied: *'Akers v. Overbeck, 18 Misc. (N. Hill v. Balls, 2 Hurl. & N. 299; 27 Y.) 198; s. c. 41 N. Y. Supp. 382. L. J. (Exch.) 45. See Randall v. '"Hackett v. Pratt, 52 111. App. Raper, El. B. & E. 84; s. c. 27 L. J. 246. 764 VENDING OK SHIPPING DANGEROUS THINGS, ETC. [2d Ed. of the druggist or his clerks, is readily supposable. He may have bought his drugs from a reputable dealer, in whose warehouse they have been tampered with for the purposes of mischief. It is easy to suggest accidents after they come into his own possession, or wrongs by others of which he would be ignorant, and against which a high degree of care would not give perfect protection. We do not find that the authorities have gone so far as to dispense with actual negligence as a necessary element in the liability when a mistake has occurred."^^ Quoting this language, another court has drawn the conclusion that the mere fact of a sale of a poisonous drug to one who asks for a harmless one, is not sufficient to show negligence of the druggist in making the sale.** The conclusion is obviously erroneous, since every person would draw the inference of negligence from such a mistake. It falls directly within the rule res ipsa loquitur. How could the customer go further than the fact, in proving negligence on the part of the druggist, when the evidence is all within the possession of the latter ? The fact of the mistake ought to be sufficient evidence of neg- ligence to call upon him for an explanation, consistent with the exer- cise of due care upon his part, failing in which, he ought to pay dam- ages. § 830. No Recovery in the Case of the Intervention of a Separate Responsible Agency.^ — On a principle already considered*^ there can be no recovery of damages in cases like those under consideration where the proximate cause of the injury is the independent action of a responsible intervening agent, unless that agent was one for whose act, under the doctrine of respondeat superior, the defendant was answerable. Thus, in the case already quoted, where the defendant sold gunpowder to a boy eight years old, the boy was afterwards held not entitled to recover damages caused by its exploding, because it appeared that, after purchasing the gunpowder, he had carried it home and put it in the custody of his parents, and that a part of it had been fired off by him, with their permission, before the explosion oc- curred by which he was injured. The wrongful act of the defendant in selling the gunpowder to the boy was not, therefore, the direct, proximate, or efficient cause of the injury.*® So, where a declaration alleged that the defendants, being druggists and chemists, through negligence and want of skill, sold and delivered to certain persons an article which the defendants supposed to be black oxide of manganese, but which was, in fact, sulphide of antimony ; that the vendees, acting " Cooley, C. J., in Brown v. Mar- a This section is cited in § 832. shall, 47 Mich. 576. « Ante, § 54, et seq. "Howes V. Rose, 13 Ind. App. ^ Carter v. Towne, 103 Mass. 507. 674; s. c. 42 N. E. Rep. 303. 765 1 Thomp. Neg.] care of dangerous agencies. on the belief that it was oxide of manganese, resold it to the plaintiff, who, influenced by the same belief, mixed it with chlorate of potassia, whereby a dangerous and explosive substance was created, which ex- ploded, damaging the plaintiff ; it was held that no cause of action was set forth. The averments, according to the reasoning of Bigelow, C. J., did not disclose any duty or obligation resting on the defendants towards the plaintiff in the sale of the article to the persons from whom the plaintiff purchased it.*^ On this principle, a manufacturer or dealer in dangerous articles intended for use, such as fire-works, is not liable for an injury in the use of them resulting from the negli- gence or improper conduct of the purchaser of them, or of a third person for whose acts the manufacturer or dealer is not responsible.*^ § 831. Liability for Letting or Lending Dangerous Machines. — Suppose the question to arise in the case of the hiring of a machine containing some concealed defect, the result of the negligence of the bailor, and a third person, not privy to the contract of hiring, is in- jured in consequence of the defect, — will the bailor be answerable to him? This question was answered in the negative in a case deter- mined in the Court of Exchequer, in 1843, by Lord Abinger, C. B., and Alderson, Gurney, and Eolfe, BE. In that case, A. had contract- ed with the postmaster-general to provide a mail-coach to convey the mail-bags along a certain line of road; B. and others had agreed to horse the coach along the same line, and B. and his co-contractors hired C. to drive the coach. While C. was driving the coach, it broke down, from latent defects in its construction, and C. was injured. It was held, all the judges being very clear upon the question, that C. could not recover damages of A., because there was no privity of con- tract between them. The boundary-line excluding this class of ac- tions was said to be this: that where there is no privity of contract between the plaintiff and defendant, and no public duty has been broken by the latter, the plaintiff can not recover.*" The same prin- " Davidson v. Nichols, 11 Allen for; and that the negligence in dis- (Mass.) 514. charging fireworks at a Fourth of '^Wyllie V. Palmer, 137 N. Y. 248; July celebration, of a boy sent by s. c. 19 L. R. A. 285; 50 N. Y. St. the dealer from whom the fireworks Rep. 706 ; 33 N. B. Rep. 381 ; 47 Alb. were purchased merely as the helper L. J. 325; 83 Hun (N. Y.) 8. It is of a man whom he sent, on request held in this case that a dealer in of the committee who bought the fireworks does not become liable as fireworks, to assist in the display, a contractor to give a display of the will not make the dealer liable, fireworks by furnishing, on the re- where the committee had full quest of a purchaser of a certain charge of the arrangements, and the quantity, a man to assist in dis- boy, when making the discharge charging the fireworks, where the complained of, was obeying the or- purchaser and other members of a ders of one of the committee, committee have full charge of the " WinterbottOm v. Wright, 10 display and all arrangements there- Mees. & W. 109. 766 VENDING OR SHIPPING DANGEROUS THINGS, ETC. [2d Ed. eiple has been applied in a case of lending, or gratuitous bailment. A railway company furnished a crane, to be used by customers in unload- ing freight which they were bound to unload at their own expense. Owing to a defect in the crane, of which the company had knowledge, a person called in temporarily to assist a consignee in unloading freight was killed. It was held that his personal representative could not recover damages of the company ; whatever might have been their obligation towards the consignee himself, they had not lent the crane to the deceased at all, nor had they placed it there for the purpose of being used by him.'" A similar question was passed upon by the New York Court of Common Pleas, in 1857. There, A. employed B. and C. to repair a ship, and hired the defendants' dry-dock for the purpose of making such repairs. B. and C. erected a scaffolding upon standards attached to the dock, which belonged to the defendants, and which, by the rules of the defendants, they were required to use for that purpose. Owing to the insufficiency of these standards, the scaf- folding gave way, whereby D., a workman employed by B. and C. in making such repairs, was injured. D. brought an action against the owners of the dry-dock for this injury and recovered a verdict; but Daly, J., at Special Term, granted a new trial, on the ground taken in Winterbottom r. Wright.^^ In his opinion, "the only safe and prac- ticable rule is, to confine the right of action to those who stand in the relation of contracting parties, or to cases where the injury is caused by the disregard or neglect of some obligation or duty which the party causing it owes to the party injured." "As a general rule," said he, in another place, "such actions must be limited to those between whom there is a contract, express or implied, or where a public duty or obli- gation arises." But this order granting a new trial was reversed at General Term by Ingraham and Brady, JJ. The former of these judges conceded the correctness of the general principle on which the decision of Daly, J., proceeded, but thought the case not within it; whilst the latter was of opinion that there was an implied contract between the plaintiff and defendants, independently of the public duty or obligation imposed by law on the defendants, arising from the char- acter of the machine hired. '^ It has been held that a manufacturer of machinery, which has been. delivered to and accepted by a customer, who assumes control of it for the purpose of making alterations, with the temporary assistance of an employe of the customer, becomes liable to such employe for an injury sustained by him, whether pro- ™Blakemore v. Bristol &c. R. Co., Dock Co., 1 Hilt. (N. Y.) 435. This 8 El. & Bl. 1035. case was appealed to the Court of " Winterhottom v. Wright, 10 Appeals, but the appeal was dis- Mees. & W. 109. missed without reaching the merits. °" Cook V. New York Floating Dry 18 N. Y. 229. 767 1 Thoinp. Neg.J care of dangerous agencies. ceeding from the improper construction of the machine, or from the negligent use of it by the manufacturer."' § 832. liability for Selling Drugs to Minors in Violation of Stat- ute. — It has been reasoned that where a merchant sells a drug to a minor in violation of a statute, which leads to the death of the minor, although the act is negligence per se, which leaves the only remaining inquiry whether it was the proximate cause of the death, — ^yet if the minor had arrived at a sufficient age to be capable of contributory negligence, the act of the minor, and not the sale of the drug to him, would be deemed the proximate cause of his death.°* § 833. Liability of Carrier for Receiving and Shipping Dangerous Goods. — A large class of cases might be collected upon the question of the liability of a carrier for damages to third parties caused by the carrier receiving, transporting, or storing dangerous goods, — with the general conclusion that if the carrier lias not heen warned of the dan- gerous character of the goods, and has no reason to suspect their dan- gerous character, he will not be liable at all for an injury happening to a third person in consequence of such dangerous character: as in the celebrated case where a carrier stored in his warehouse a quantity of nitro-glycerine, which exploded, destroying at once the carrier's warehouse and adjacent property.'^ In other cases, where the carrier knows or has reason to suspect the dangerous character of the goods, he is bound to exercise a degree of care in guarding them in transit, and before and after the transit, which is proportioned to the danger to others from the character of the goods."" With this principle in mind, it has been held that crude petroleum is not so dangerous that a shipper is bound so to protect and guard it that no harm shall come to any one from it, but that his duty is discharged by providing a suit- able vehicle and so storing it as to encounter the usual risks of trans- portation."'' § 834. Contributory Negligence as a Defense in these Cases.^ — The negligence of the person injured by the use of the dangerous "^Empire Laundry Machinery Co. rott v. Barney, 2 Abb. (U. S.) 197; V. Brady, 164 III. 58; s. c. 45 N. E. 1 Sawy. (U. S.) 423; 1 Deady (U. Rep. 486. S.) 405. " Meyer v. King, 72 Miss. 1 ; s. c. " White v. Colorado &c. R. Co., 5 16 South. Rep. 245. Compare Carter Dill. 428; s. c. 3 McCrary 559. V. Towne, 103 Mass. 507, as stated " Goodlander Mill Co. v. Standard ante, § 830. Oil Co., 63 Fed. Rep. 406; s. c. 27 "' Nitro-Glycerine Case, 15 Wall. L. R. A. 583; 11 C. C. A. 253. (U. S.) 524; s. c. 1 Thomp. Neg., a This section is cited in § 858. 1st ed., 42; aff'g s. c. sub nam. Par- 768 VENDING OR SHIPPING DANGEKOUS THINGS, ETC. [2d Ed. drug, machine, or other thing, may preclude a recovery against the vendor or lender of it, although he has been guilty of negligence in selling or lending it. For example, it has been held that, although there is a statute making it a criminal offense to sell poison without a label, yet one selling it without a label, but warning the purchaser of its character, is not liable in a civil action, if the purchaser fails to heed the warning, and takes an overdose of the poison.^' Contrary to the foregoing, there is a holding to the effect that where the drug- gist, in selling a poisonous substance failed to label the package with the word "poison," as required by statute, this was negligence per se, and was not cured by informing the purchaser of the nature of the substance. And although the medicine so purchased may have appeared queer and suspicious to the purchaser, when mixed with other ingredients, yet it was said that he was not guilty of contribu- tory negligence, as matter of law, in relying upon the care and accu- racy of the druggist and in disregarding his own suspicions." ° Where a husband purchased what was supposed to be a harmless medicine to be taken by his wife who was ill, and the druggist through negligence put up a poisonous drug which she took, causing her death, — it was held, in a statutory action for damages therefor, that the contributory negligence of the husband was not imputable to the wife and would not operate to defeat the action.*" § 835. Liability for Damages Caused by Spreading Contagious Dis- eases, — A landlord who lets premises, knowing that they are in- fected with a contagious disease, without notifying the lessee, is liable to the latter, in case the disease is communicated to him, for the dam- ages thereby sustained."^ In a case in the Supreme Court of New York, ably reasoned by Bockes, J., the defendant, a physician, attended a woman who died of small-pox, and subsequently employed the plaintiff to whitewash the house in which the death occurred. The plaintiff, who knew the woman had died of small-pox, entered "'Wohlfahrt v. Beckert, 92 N. Y. verdict for the defendant: Wohl- 490; s. c. 44 Am. Rep. 406. But fahrt v. Beckert, supra. where, in such a case, the only evi- "" Fisher v. Golladay, 38 Mo. App. dence that such warning was given, 531. That the question whether one was that of the clerk of the drug- who could not read was or was not gist who sold the poison, which evi- guilty of negligence in signing an dence the jury were at liberty to order for a machine, upon the back disbelieve because he was an inter- of which was a printed warranty, ested witness, having violated the without knowing its contents, is for law by omitting to put the label on the jury, — see Aultman v. Falkum, the package, — it was held to be a 47 Minn. 414; s. c. 50 N. W. Rep. 471. question for the jury whether the °° Davis v. Guarnieri, 45 Ohio St. warning was in fact given, and it 470; s. c. 15 N. E. Rep. 350; 13 West, was consequently error to direct a Rep. 438. "^ Cesar v. Karutz, 60 N. Y. 229. VOL. 1 THOMP. NEG. 49 769 1 Thomp. Neg.] care of dangerous agencies. and whitewashed the house, relying upon the assurances of the defend- ant that the house had been thoroughly disinfected, and that he would be entirely safe in so doing; but plaintiff having contracted the dis- ease in the house, he subsequently brought an action to recover the damages sustained thereby. It was held that the relation between the parties was that of master and servant; and that the plaintiff was entitled to recover in case the jury should find, on all the facts, that the plaintiff did not act rashly and inexcusably in entering the house under the employment ; and further, that the defendant had not acted towards the plaintiff with due care and prudence. °^ In an English case at Nisi Prius a man was convicted upon an indictment for an indecent assault upon his niece, a girl thirteen years of age, who had voluntarily occupied the same bed with him. He had given her liquor before going to bed, and had infected her with a venereal disease. The conviction was put upon the ground that he had concealed from her the fact that he was so infected, and that the fraud vitiates consent."" An attempt was made in the Irish High Court of Justice to invoke the same principle in a civil action by a female plaintiff, who, having con- sented to sexual intercourse with the defendant, he concealing from her the fact that he was venereally diseased, had been by him infected with such a disease. It was held, that, since the injury complained of arose from a willful act of immorality on her part, she could not recover damages on account of it.°* '^'Span V. Ely, 8 Hun (N. Y.) 256. '^ Regina v. Bennett, 4 Fost. & Fin. 1105. " Hegarty v. Shine, 7 Cent. L. J. 291. This decision was afterwards affirmed, upon thorough argument. in the Irish Court of Appeals, De- cember, 1878. See 8 Cent. L. J. 111. Liability for communicating conta- gious diseases, — see note, 19 L. R. A. 725. 770 TITLE SEVEN. ANIMALS. 771 TITLE SEVEN. Chapter XXIX. XXX. XXXI. XXXII. XXXIII. XXXIV. ANIMALS. Liability of Keepers of Animals, • • • §§ 839-868. Proof of Scienter, §§ 872-879. Dogs, §§ 881-900. Trespassing Animals, §§ 904-914. Diseased Animals, §§ 917-931. Contributory and Imputed Negligence in Cases of Injuries by Animals, • • • §§ 934-941. CHAPTEE XXIX. LIABILITY OF KEEPERS OF ANIMALS. Section 839. General statement of such lia- ability at common law. 840. This subject how affected by the common-law classification of animals. 841. Liability of the keeper of wild and vicious animals. 842. Necessity of proving scienter. 843. Circumstances and statutes un- der which proof of scienter dispensed with. 844. Keeper of animal known to be vicious, liable as an insurer. 845. Tendency of the modern law to place the liability on the footing of negligence. 846. Decisions illustrating this ten- dency. 847. Application of the doctrine which subjects the owner to the liability of an Insurer in Section the case where the animal escapes from his restraint. 848. To what extent the owner of animals naturally dangerous is bound to confine them upon his own premises. 849. Rule that liability for allowing horses, cattle, etc., to escape upon the public streets, de- pends upon negligence. 850. Liability for allowing domestic animals naturally vicious or dangerous, to escape upon the public streets. 851. Liability for damages caused by the escape of cattle driven along the public highway. 852. Duty to warn of danger. 853. When negligence presumed and when must be shown under modern law. 773 1 Thomp. Neg.] care and restraint of animals. Section 854. Liability for transferring vi- cious domestic animals to others without giving warn- ing of their vicious propensi- ties. 855. Liability for acts of domestic animals not ferocious. 856. Liability where animals injure each other. 857. What will justify killing do- mestic animals other than dogs. 858. Liability for keeping vicious animals rests upon owner or keeper. 859. When owner liable and when not. 860. Whether both owner and keep- er may be liable. Section 861. Joint owners liable jointly. 862. Separate owners not liable jointly but severally. 863. Circumstances under which master not liable for acts of his servant. 864. No such liability unless relation of master and servant exists. 865. Liability of liverymen and other hirers and lenders of horses. 866. Pleading in actions for injuries from animals. 867. Burden of proof in such ac- tions. 868. Points of evidence in such ac- tions. § 839. General Statement of such Liability at Common Law.^ — The following propositions may be stated as the rule of liability which the ancient common law put upon the keeper of animals for injuries done by them to others: — 1. In the case of domestic animals not of a ferocious nature, the keeper was liable only in case he had knowledge of the vicious propensity of the animal; and in case of the animal biting or injuring a person, the gist of the action was his wrong in keeping it with knowledge of its vicious propensities, and not his negligence in not keeping it properly coniined or secured. The action did not proceed upon negligence at all, but if he had knowledge of the vicious nature of the animal, he was liable as an insurer for any inju- ries which it might inflict upon others, in the exercise of its vicious propensities,^ and consequently it was not necessary to prove negli- gence.^ 3. In the ease of wild animals, those which were classed as ferae naturae, and especially those of a ferocious nature, knowledge of their vicious or mischievous propensities was presumed, and he kept them at his peril, and was liable as an insurer for any mischief done by them in the exercise of those propensities." 3. In the case of an a This section is cited in §§ 798, 842, 858, 883, 911, 919, 955. 1 May V. Burdett, 9 Ad. & El. (N. S.) 101; s. c. Thomp. Neg., 1st ed., 174, where the entire learning on this subject is gone over; Van Leu- ven V. Lyke, 1 N. Y. 515; s. c. 1 Thomp. Neg., 1st ed., 188. "Strouse v. Leipf, 101 Ala. 443; 774 s. c. 23 L. R. A. 622; 14 South. Rep. 667; Hammond v. Mellon, 42 111. App. 186. ' May V. Burdett, 1 Ad. & El. (N. S.) 101, per Denman, C. J., and authorities cited; Smith v. Pelah, 2 Strange 1264; Ha!e, P. C. 430, pt. 1, ch. 33. That such is the modern law, at least in England, is shown LIABILITY OF KEEPERS. [2d Ed. animal of any kind breaking into the close of another and there doing damage, the liability of the keeper of the animal rests upon the footing of trespass, and not negligence, where the rule has not been changed by statute; and consequently the question of his knowledge of the disposition of the animal to break loose and commit trespasses is immaterial.* It will at once arrest the attention that the rules of the ancient common law relating to the subject under consideration, and which are still administered in some of our modern courts, pro- ceed on essentially different conceptions from those of the modern law. By the analogies of the modern law, the liability of the keeper of the animal, in each of the three foregoing cases, would depend upon the question of his negligence, — whether, having regard to the nature • of the animal, and its liability to do mischief, the keeper exercised reasonable care in restraining it and safe-guarding the public from injuries by it.° § 840. This Subject how Affected by the Common-law Classification of Animals. — At common law, animals were divided into two classes : animals ferae naturae, and domitae or mansuetae naturae. Animals ferae naturae are those of a wild naCure, or those which are not usually tamed.° Animals domitae naturae, or mansuetae naturae, are those of a tame or domesticated nature.^ This classification had reference mainly, if not exclusively, to the rights of property which may be acquired in them; those of the latter class being the subjects of abso- lute and permanent ownership, while in regard to the former only a qualified property can exist; and the distinction is based upon the extent to which they can be domesticated or brought under the control and dominion of man, and not at all upon the ferocity of their dispo- sition, or their proneness to mischief. For instance, the dog, some species of which are extremely savage, is uniformly classed among animals domitae naturae; while the hare, the rabbit, and the dove are termed ferae naturae, although comparatively harmless.' ^Many of the cases cited herein seem to divide animals into the ferocious and by a decision to the effect that the ° For illustrations of this analogy, owner of an elephant keeps it at his see ante, §§ 696, 718, 729, 759, 780, own risk, and that his liability for 796, 817. There are valuable notes damage done by it is not affected by on this subject in 14 L. R. A. 196; the question of his knowledge or 15 L. R. A. 249. ignorance of its dangerous charac- » Bouv. L. Die; 2 Bla. Comm. 388; ter: he is liable as an insurer in Burrill's L. Die; Whart. L. Die. favor of others who may be injured 'Bla. Comm. 390; Bouv. L. Die; by it: Filburn v. People's Palace &c. Burrill's L. Die; Whart. L. Die. Co. (C. A.) 25 Q. B. Div. 258. »Barl v. Van Alstine, 8 Barb. (N. 'Van Leuven v. Lyke, 13 Johns. Y.) 630; s. e 1 Thomp. Neg., 1st ed., (N. Y.) 339; s. e 1 Thomp. Neg., p. 182. 1st ed., 188. 775 1 Thomp. Neg.] care and restraint op animals. non-ferocious. But this division is more seeming than real, and the careful reader will not allow himself to fall into the error of thinking that, because an animal belongs to the class termed ferae naturae, in all cases of injury" inflicted by it scienter need not be proved, and that negligence on the part of the keeper is presumed; or, that in all cases of injuries done by animals mansuetae naturae, scienter must be proved, and that actual negligence on the part of the owner must be shown. § 841. Liability of the Keeper of Wild and Vicious Animals.^ — The books abound in cases holding that the keeper of wild animals, such as lions, tigers, bears, and the like, is an insurer against all inju- ries they may commit; that, in this respect, there is no distinction between the ease of an animal which breaks through the ordinary tame- ness of its nature, and is fierce, and known to the owner to be so, and one which is, by its generic propensities, of a ferocious disposition; and that the keeping of the animal after knowledge of its mischievous propensities is the gist of the action.^" It has been held at common law, that if a person should turn loose a fierce and dangerous wild beast, knowing its savage disposition and the beast kill a man, the party turning it loose would be guilty of murder.^^ Latterly, however, there seems to be a disposition upon the part of the authorities to hold the more reasonable rule, that all that should he required of the keeper of such animals is, that he should take that superior caution to pre- vent their doing mischief which their propensities in that direction justly demand of him. A learned writer on this subject^^ says: "The keeping of wild animals for many purposes has come to be recognized » See Mann v. Wiland, 24 Leg. Int. Haggarty, 35 Ind. 178; 3 Bla. Comm. (Pa.) 77; s. c. 3 W. N. C. 6; Scrib- 153; Koney v. Ward, 2 Daly (N. Y.) ner v. Kelley, 38 Barb. (N. Y.) 14. 295; s. c. 36 How. Pr. (N. Y.) 255; See also Smith v. Cook, 1 Q. B. Div. Blackman v. Simmons, 3 Car. & P. 79; 45 L. J. (Q. B.) 122; 3 Cent. L. J. 138; Buckley v. Leonard, 4 Denio 190. (N. Y.) 500; Oakes v. Spaulding, 40 a This section is cited in § 883. "Vt. 351; Marble v. Ross, 124 Mass. "Smith V. Pelah, 2 Stra. 1264 Rex V. Huggins, 2 Ld. Raym. 1583 Jenkins v. Turner, 1 Ld. Raym. 110 Mason v. Keeling, 1 Ld. Raym. 608 1 Hale's P. C. 430; Bull. N. P. 77 Boulton V. Banks, Cro. Car. 254 44; s. c. 6 Cent. L. J. 157; Meibus v. Dodge, 38 Wis. 300; Besozzi v. Har- ris, 1 Fost. & Fin. 92; Woolf v. Chalker, 31 Conn. 121; Congress &c. Spring Co. v. Edgar (U. S. Sup. Ct. May, 1879), 19 Alb. L. J. 413; 11 May v. Burdett, 9 Q. B. 101; Jackson Ch. Leg. N. 295. V. Smithson, 15 Mees. & W. 563 ; 15 " Rex v. Huggins, 2 Ld. Raym. L. J. (Bxch.) 311; Card v. Case, 1583. And see, as to criminal action 5 C. B. 622; 17 L. J. (C. P.) 124; for turning loose a vicious horse, Loomis V. Terry, 17 Wend. (N. Y.) which kicked and thereby killed a 496; McCaskill v. Elliott, 5 Strobh. person, Regina v. Dant, 10 Cox C. L. (S. C.) 198; Popplewell v. Pierce, C. 102; s. c. Leigh & Cave's Cr. Gas. 18 Cush. (Mass.) 509; Kelley v. Til- 567. ton, 3 Keyes (N. Y.) 263; Partlow v. '"Cooley on Torts, 349. 776 LIABILITY OF KEEPERS. [2d Ed. 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, therefore, 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 doctrine of negligence. A very high degree of care is de- manded of those who have them in charge; but if, notwithstanding such care, they are enabled to commit mischief, the case should be re- ferred to the category of accidental injuries, for which a civil action will not lie."^' § 842. Necessity of Proving Scienter.^ — Excepting the cases where the action is for injuries done by wild animals, and the cases where the action is for injuries by domestic animals trespassing upon the plaintiff's close, damage feasant, and dealing now with cases where the action is brought for a bite or other personal injury inflicted by a domestic animal, — the gravamen of the injury is, as already said,'^* the wrong of keeping the animal with knowledge of its vicious propen- sities; and it is hence essential to the maintenance of the action that this knowledge or scienter should be averred and proved.^^ To this " See Scribner v. Kelley, 38 Barb. (N. Y.) 14; Earl v. Van Alstlne, 8 Barb. 630; Mann v. Wiland, 34 Leg. Int. (Pa.) 77; s. c. 3 W. N. C. 6; Laverone v. Manglanti (dissenting opinion of Crockett, J.), 41 Cal. 140; Logue v. Link, 4 E. D. Smith (N. Y.) 65; Canefox v. Crenshaw, 24 Mo. 199; Ulery v. Jones, 81 111. 403. In an action by A. to recover for injuries from an attack by a hucTc in a park, the declaration alleged that the pro- prietor knew the animal to be dan- gerous. There was evidence that the buck was allowed to roam in the park with several other deer; that A. had often seen other persons playing with these deer in the park ; that there had been notices in the park for more than a year "Beware of the Buck," and that she did not know the deer to be dangerous un- less disturbed. Experts testified that, at the season when the injuries were suffered, bucks are dangerous. It was held that a nonsuit was properly refused: Congress &c. Co. V. Edgar, 99 U. S. 645. The defend- ants, who were members of an unin- corporated club, kept a bear chained upon their premises, in the city of New Orleans. A. pastured his cat- tle in a field adjoining. One day, while A. and his hired boy were passing the bear, the boy, — not in A.'s presence, however, — teased the bear by setting a dog on him. The bear slipped his collar and attacked and wounded A., who died of his injuries. It was held that the de- fendants were liable, including a de- fendant who, being away at the time, knew nothing of the bear: Vredenburg v. Behan, 33 La. An. 627. So far as the absent defend- ant was concerned, the decision pro- ceeded upon the ground that he was jointly liable with the other defend- ants as a keeper of the vicious beast, — a subject hereafter considered : Post, § 861; ante, § 39. Bermudez, C. J., and Poche, J., dissented, on the point of the liability of the absent defendant. a This section is cited in §§ 851, 866, 878. "Arafe, § 839. '»Cox V. Murphy, 82 Ga. 623; s. c. 9 S. E. Rep. 604; Shaw v. Craft, 37 Fed. Rep. 317; Bell v. Leslie, 24 Mo. App. 661; Mulherrin v. Henry, 6 Kulp (Pa.) 462; 11 Pa. Co. Ct. 49; Moynahan v. Wheeler, 117 N. Y. 285; s. c. 22 N. B. Rep. 702; 27 N. 777 1 Thomp. Neg.J care and restraint of animals. extent the modern law still defers to the rule of the ancient law, and ignores the obvious conception that the keeper of domestic animals is under a duty, having due regard for the rights of others, of knowing whether or not they are vicious, or of exercising reasonable care to discover what their propensities are. It is not enough to charge him, even under the modern law, that he might have Jcnown of the vicious or mischievous propensities of the animal by the exercise of reason- able care.^* Y. St. Rep. 152; Staetter v. McAr- thur, 33 Mo. App. 218; Klenberg v. Russell, 125 Ind. 531; s. c. 25 N. E. Rep. 596; Durrell v. Johnson, 31 Neb. 796; s. c. 48 N. W. Rep. 890; West Chicago Street R. Co. v. Walsh, 78 111. App. 595 [citing May v. Bur- dett, 9 Q. B. 101; and Vrooman v. Lawyer, 13 Johns. (N. Y.) 339]; Byrne v. Morel, 20 Ky. L. Rep. 1311; s. c. 49 S. W. Rep. 193 (not to be off. rep.). See also PlaflBnger v. Gil- man, 18 Ky. L. Rep. 1071; Barclay V. Hartman (Super. Ct.), 2 Marv. (Del.) 351; s. c. 43 Atl. Rep. 174; Curtis V. Schlosser, 14 Pa. Co. Ct. 600; s. c. 3 Pa. Dist. R. 598; State V. Remhoff (N. J.), 26 Atl. Rep. 860; Strouse v. Leipf, 101 Ala. 443; s. c. 23 L. R. A. 622; 14 South. Rep. 667; Hammond v. Meltonj 42 111. App. 186; State v. Donohue, 49 N. J. L. 548; s. c. 10 Atl. Rep. 150; 8 Cent. Rep. 621; Murphy v. Preston, 5 Mackey (D. C.) 514; s. c. 9 Cent. Rep. 146 ; Hall v. Huber, 61 Mo. App. 384; s. c. 1 Mo. App. Rep. 621; Clow- dis V. Fresno Flume &c. Co., 118 Cal. 315; s. c. 50 Pac. Rep. 373; Benoit v. Troy &c. R. Co., 154 N. Y. 223; s. c. 48 N. E. Rep. 524; rev'g 9 App. Div. 622; Bauer v. Lyons, 23 App. Div. 204; s. c. 48 N. Y. Supp. 729; Kitch- ens V. Elliott, 114 Ala. 290; s. c. 21 South. Rep. 965; Moss v. Partridge, 9 111. App. 490; Hahn v. Kordula, 5 Kan. App. 142; s. c. 48 Pac. Rep. 896; Koestel v. Cunningham, 97 Ky. 421; s. c. 30 S. W. Rep. 970; Harri's V. Fisher, 115 N. C. 318; s. c. 20 S. E. Rep. 461; O'Connell v. Jarvis, 13 App. Div. 3; s. c. 43 N. Y. Supp. 129; Graham v. Payne, 122 Ind. 403; Docketry v. Hutson, 125 Ind. 102; Meegan v. McKay, 1 Okla. 59; s. c. 30 Pac. Rep. 232. The act of Con- gress of June 19, 1878, ch. 323, § 5, making the owner of a dog in the District of Columbia liable in a civil 778 action for any damages done by such animal, does not relieve the plaintiff of the necessity of averring and proving that the owner had knowledge of the vicious propensi- ties of the animal. In other words, in the opinion of the court, the stat- ute means nothing at all: Murphy v. Preston, 5 Mackey (D. C.) 514. The civil law as administered in Louisiana is the same as the com- mon law in this respect: Montgom- ery V. Koester^ 35 La. An. 1091; s. c. 48 Am. Rep. 253. ""Laherty v. Hogan, 13 Daly (N. Y.) 533. On the principle of the text, the owner of a horse, not known by him to be vicious, dan- gerous, or unruly, who enters him in a race in charge of a competent rider, is not responsible for an in- jury to a spectator caused solely by the fact of the horse becoming unruly while so in the race: Hally- burton v. Burke County Fair Asso., 119 N. C. 526; s. c. 38 L. R. A. 156; s. c. 26 S. E. Rep. 114. Another ap- plication of the principle of the text is fo.und in a holding to the effect that a child can not recover from the owner of a dog, damages for personal injuries inflicted by the dog upon the child, while the dog was on the premises of the father of the child, without proof that the owner of the dog knew that it was vicious, although the entry of the dog on the premises of the father of the child may have constituted a tres- pass, such as would have given the father a cause of action for tres- pass; but he has no substantive cause of action to which to annex the aggravation of damages caused by the bite of the dog: O'Connell v. Jarvis, 13 App. Div. 3; s. c. 43 N. Y. Supp. 129: a decision which illus- trates the gross injustice of the rule of the ancient law. LIABILITY OF KEEPERS. [2d Ed. § 843. Circumstances and Statutes under which Froof of Scienter Dispensed with. — It does not follow that in all eases of injuries from domestic animals, it will be necessary for the person injured to prove a knowledge on the part of the owner or keeper, of its vicious propen- sities, in order to a recovery of damages. The circumstances may be such as to make the negligence of the owner, or of his agent or servant, in handling or earing for the animal on the particular occasion, the proximate cause of the injury.^^ For example, where a person left a horse standing partly on a sidewalk after it had been unhitched from a wagon, it was held that he was liable for injuries to one who, while passing along the sidewalk, was kicked by the horse, without proof that the horse was vicious, where the evidence showed that the horse had been made nervous and restive by the treatment of the driver. ^^ § 844. Keeper of Animal Known to be Vicious, Liable as an In- surer.^ — The converse of the leading proposition in the preceding paragraph, is that one who harbors or keeps vipon his premises an animal known to be vicious, in such a degree as to endanger mankind, is bound to restrain him at all hazards and in any event, and is liable, without proof of negligence, for any mischief which he may do, by reason of his vicious propensities, to persons who themselves are act- ing rightly and in the exercise of ordinary or reasonable care.^^ This principle has been applied so as to charge the owners of vicious ani- mals with damages for injuries committed by them in the following cases: — Where the owner of premises knew that his dog was vicious and dangerous, but nevertheless permitted his agent to retain him with " Clowdis V. Fresno Flume &c. Co., a horse driven by his son, wlio does 118 Cal. 315; s. c. 50 Pac. Rep. 373. injury in consequence of being " Hardiman v. Wbolley, 172 Mass. frightened by the whistling of a 411; s. c. 31 Chicago Leg. News 205; steamer: Langlois v. Drouin, Rap. 3 Am. Neg. Rep. 364; 52 N. E. Rep. Jud. Quebec, 13 C. S. 49. 518. Many statutes exist dispensing a This section is cited in §§ 883, with the necessity of proving sci- 934. enter. Many of those which have '° Hahn v. Kordula, 5 Kan. App. special reference to dogs are con- 142; s. c. 48 Pac. Rep. 896; Koestel sidered further on: Post, §§ 884,885. v. Cunningham, 97 Ky. 421; s. c. 30 Under a statute of Iowa (McLain S. W. Rep. 970; Harris v. Fisher, Iowa Code, § 2255), providing that 115 N. C. 318; s. c. 20 S. E. Rep. every owner of a bull is prohibited 461; Strouse v. Leipf, 101 Ala. 443; from allowing his bull to run at s. c. 23 L. R. A. 622; 14 South. Rep. large on the public highway, in vio- 667; Kitchens v. Elliott, 114 Ala. lation of law, he is made liable for 290; s. c. 21 South. Rep. 965; Bauer all damages done by such bull while v. Lyons, 23 App. Div. 204; s. c. 48 so unlawfully at large, unless the N. Y. Supp. 729; Benoit v. Troy &c. injured party is himself at fault,— R. Co., 154 N. Y. 223; s. c. 48 N. E. it is immaterial whether the owner Rep. 524; rev'g 9 App. Div. 622; knew of the vicious nature of the Hall v. Huber, 61 Mo. App. 384; s. c. animal or not: Meier v. Shrunk, 79 1 Mo. App. Rep. 621; State v. Rem- lowa 17. Liability under Quebec hoff, 55 N. J. L. 475; s. c. 26 Atl. Civ. Code, art. 1055, of the owner of Rep. 860; Hammond v. Mellon, 42 111. App. 186. 779 1 Thomp.'Neg.] care and restraint op animals. other dogs, at a place on the side of the street where he would be likely to commit damages to one passing by;^" where the owner of a fierce and dangerous dog, liable to attack and injure persons, knew of his vicious propensities, but nevertheless so kept the dog that it attacked and injured a person who had not provoked it in any way;^' and where a person was struck and injured by horses while running away, and the accident was due either to their viciousness, of which the owner had knowledge, or to the negligence of his driver, for which he was answerable under the rule of respondeat superior.^' § 845. Tendency of the Modern law to Place the Liability on the Footing of Negligence.* — There is a distinct tendency in the modern law to break loose from the rule of the ancient law which made the keeper of a domestic animal, knowing of its vicious propensities, an insurer against the consequences of those propensities, and which made the gist of the action the keeping, and not the restraining of the animal, and to place the liability of the owner upon the mere footing of negligence, actual or presumed.^^ In a modern case where the subject is learnedly examined and clearly discussed, the conclusion of the court was as follows: 1. That one who owns or keeps an animal of any kind becomes liable for any injury the animal may do, only on the ground of some actual or presumed negligence on his part. 2. That it is essential to the proof of negligence, and sufficient evidence thereof, that the owner be shown to have had notice of the propensity of the animal to do mischief. 3. That proof that the animal is of a savage and ferocious nature is equivalent to proof of express notice. In such cases, notice is presumed.^* Another modern court, depart- ing from the theory of the ancient law, which places the liability upon the fact of keeping the animal with knowledge of its vicious propensi- ties, laid down the principle that the gravamen of the action for such an injury is the neglect to restrain the animal after notice of its vicious propensities.^' But where the theory of the old law is maintained, no evidence of special negligence in permitting a dog to escape from an enclosure is necessary to create a liability for an injury done by ""Harris v. Fisher, 115 N. C. 318; =*Earl v. Van Alstine, 8 Barb. (N. s. c. 20 S. E. Rep. 461. Y.) 630; s. c. 1 Thomp. Neg., 1st "^Koestel v. Cunningham, 97 Ky. ed., 182, 186. 421; s. c. 30 S. W. Rep. 970. ' ^Fake v. Ad dicks, 45 Minn. 37; ""Hall V. Huber, 61 Mo. App. 384; s. c. 47 N. W. Rep. 450. See also,' as s. c. 1 Mo. App. Rep. 621. being somewhat in line with this a This section is cited in § 873. theory, Lyons v. Merrick, 105 Mass. ""As to this tendency with refer- 71; Coggswell v. Baldwin, 15 Vt. ence to dogs, see post, § 882. As to 404; s. c. 40 Am. Dec. 686; Graham statutes showing this tendency with v. Payne, 122 Ind. 403; s. c. 24 N. E. reference to dogs, see post, § 884. Rep. 216. 780 LIABILITY OF KEEPERS. [2d Ed. such dog SO escaping, on the part of one who keeps it without knowl- edge of its vicious propensities.^^ § 846. Decisions Illustratiiig This Tendency.^ — This tendency crops out in various ways. Thus, it is said in New York that an owner of a domestic animal is not responsible for an injury caused to another by the vicious propensity of such animal, unless the owner knew, or was chargeable with knowledge/'^ or with notice^^ of such vicious propensity. Now, a person can only be chargeable with notice of a fact which he may not actually know, when he is under the duty of hnowing it, and when his failure to find it out is ascribed to him as negligence; from whence arises the rule that negligent ignorance is imputed to a party as actual knowledge.^" The meaning of the New York holdings must therefore be that the owners of animals of a class which are liable to develop vicious propensities, are under an obliga- tion, arising out of their duty to others, of ascertaining whether such animals are vicious, so as to be dangerous to others, and if so, of tak- ing the necessary measures to restrain them. The Supreme Court of Indiana, in like manner, have treated this question in a manner which necessarily proceeds upon the theory of negligence, and not of being an insurer, — in holding that where one keeps and owns a vicious dog, knowing it to be such, he is liable, prima facie, in a suit by a party who has been bitten by such dog ; but if the plaintiff's negligence has contributed to the injury, the defendant is not liable, and consequent- ly the plaintiff should aver in his complaint that he was without fault.^" Now, if the defendant is an insurer against injuries caused by the known vicious propensity of his dog, the negligence of a person injured by the dog, merely contributing or giving occasion to the in- jury, will be no defense. This decision therefore places the question on the ground of negligence, and negligence only, and makes the fact of keeping a vicious dog, knowing it to be such, prima facie or presumptive evidence of negligence, subject to rebuttal. Another court has transformed the liability of the harborer of a dog known by him to be vicious, from that of an insurer to that of a party guilty of willful negligence, by holding that the owner or harborer of a dog known by him to be in the habit of running out at travellers upon the highway, is liable for damages occasioned by the dog running out and "Strouse v. Leipf, 101 Ala. 443; ^ Bauer v. Lyons, 23 App. Div. s. c. 23 L. R. A. 622; 14 South. Rep. 204; s. c. 48 N. Y. Supp. 729. 667. '"Ante, § 8. a This section is cited in § 873. ^ Williams v. Moray, 74 Ind. 25 ; "Benoit v. Troy &c. R. Co., 154 s. c. 39 Am. Rep. 76. N. Y. 223; s. c. 48 N. E. Rep. 524; rev'g 9 App. Div. 662. 781 1 Thomp. Neg.j cake and kestraint of animals. frightening the horse of a traveller, as for willful negligence. ^^ An- other decision has introduced into the question the doctrine of proxi- mate cause, which might indeed play a part in it under the conception of the defendant being an insurer, just as it does in cases of fire insur- ance. But the court places the question upon the theory of negli- gence, by holding that the negligence of a bailee for hire of a horse, which consists in permitting a bull to remain in the sanie pasture, which negligence would render the bailee for hire liable to his bailor, — constitutes no defense to an action by the bailor, that is to say, by the owner of the horse, against the owner of the bull, for injuries inflicted upon the horse by the buU:*^ a very questionable proposition, since the bailee of the horse may well be identified with the bailor, or re- garded as the agent of the bailor, leaving the recourse of the bailor against his bailee only. Other cases discuss the precautions which must be taken by the owners of savage animals to prevent them from injuring third persons:'^ a discussion which is totally irrelevant, if the owners of such animals are bound to prevent them from doing mischief at all events. If such is their liability, the law is not con- cerned with the question what precautions they take, or what degree of care they exercise, but it requires them to take such precautions as will be an absolute guarantee of the safety of the public at all events. § 847. Application of the Doctrine which Subjects the Owner to the Liability of an Insurer in the Case where the Animal Escapes from his Restraint. — ^TJnder the ancient doctrine which makes the lia- bility of the owner or keeper of a domestic animal known by him to possess a tendency to attack and injure mankind, that of an insurer against such results, his negligence in permitting the animal to escape on the highway or elsewhere, and to injure a person lawfully there, will not be a subject of inquiry at all; but the fact that the animal does escape and does do the mischief, will be sufficient to charge him with damages. Thus, where the owner of a vicious horse, who knew its mischievous disposition, failed to secure it, so that it escaped and caused a mare which was being driven on the highway to run away, the owner of the horse was liable for the damage caused thereby.'* So, the owner and keeper of a dog, who knew that it was vicious and accustomed to attack and bite mankind, but who nevertheless allowed it to run at large, is guilty of such wantonness as not only to warrant ^ Jones v. Carey, 9 Houst. (Del.) Sylvester v. Maag, 155 Pa. St. 225; 214; s. c. 31 Atl. Rep. 976. Hammond v. Melton, 42 111. App. ^=Duggan V. Hansen, 43 Neb. 277; 186; State v. Remhoff, 55 N. J. L. s. c. 61 N. W. Rep. 622. 475; s. c. 26 Atl. Rep. 860. =■= Jacoby v. Ockerhausen, 59 Hun « Kitchens v. Elliott, 114 Ala. 290; (N. Y.) 619; 37 N. Y. St. Rep. 710; s. c. 21 South. Rep. 965. 782 LIABILITY OF KEEPERS. [2d Ed. a recovery for the natural and proximate damages caused by the at- tack of the dog on a man, but such as to subject him to vindictive or punitive damages. ^° So, one who was gored by a steer on a public street, was entitled to recover damages from the owner of the steer, who knew it to be dangerous and vicious, on the proof that his servants in charge of it were afraid of it, and turned it loose and allowed it to run at large.'' So, if the owner of a dog, knowing it to be vicious, suffers it to be at large upon the public highway, he will become liable in damages to a person who, without fault, is bitten by the dog;'^ and this is so, although the owner of the dog may keep it for the necessary defense of his house, his garden, or his field. '^ § 848. To What Extent the Owner of Animals Naturally Dangerous is Bound to Confine them upon his own Premises. — This subject has been considered with reference to dogs; but there are also decisions construing it with reference to bulls, rams, and other animals which are, from their very nature, very liable to attack mankind. It has been held that to allow a vicious ram the freedom of an open field, with an opportunity to molest every person who might have occasion to go into or pass through it, is not such a confinement as will exon- erate its owner in case one is injured by it.'' Upon the analogies of the ancient law, the owner of such animals was bound, at his peril, to keep them properly secured, to the end that they might not injure persons coming in contact with them without their fault.*" On the other hand, the owner of an ordinary draft horse attached to a vehicle, which, while momentarily left standing unattended in a street adja- cent to a sidewalk, bit one passing by upon the sidewalk, was not liable for the injury, where it did not appear that the horse was or ever had been vicious, or that the owner had any reason to apprehend that it would become so.*^ =° Hahn v. Kordula, 5 Kan. App. the sehoolhouse grounds, although 142; s. c. 48 Pac. Rep. 896. it had been irritated by the school ^ Byrne v. Morel, 20 Ky. L. Rep. children without her knowledge, — 1311; s. c. 49 S. W. Rep. 193 (no oft. see Kinmouth v. McDougall, 46 N. rep.). See also Pfaffinger v. Oilman, Y. St. Rep. 211; s. c. 19 N. Y. Supp, 18 Ky. L. Rep. 1071. 771. " Roehers v. Remhoff, 55 N. J. L. " Lyons v. Merrick, 105 Mass. 71. 475. See also Sylvester v. Maag, 155 " Reed v. Southern Exp. Co., 95 Pa. St. 225; s. c. 26 Atl. Rep. 392. Ga. 108; s. c. 22 S. E. Rep. 133. That " State v. Remhoff, 26 Atl. Rep. a person for whom several bulls 860. have been purchased is liable for an "Graham v. Payne, 122 Ind. 403; injury inflicted by one of them upon s. c. 24 N. E. Rep. 216. That the a person without fault, while they owner of a ram known by him to be are being driven loose through the vicious and to be in the habit of streets of a city, — see Pfaffinger v. attacking people, is liable for inju- Gilman, 18 Ky. L. Rep. 1071; 38 S. rles done by it to a schoolteacher on W. Rep. 1088 (not to be off. rep.). 783 1 Thomp. Neg.] care and restraint of animals. § 849. Rule that Liability for Allowing Horses, Cattle, etc., to Escape upon the Public Streets, Depends upon Negligence. — The ten- dency of the modern law to assimilate the liability of the owner of domestic animals for injuries committed by them to negligence in all cases, without reference to proof of a knowledge of vicious propensity in such animals, is illustrated in a large class of holdings, some of them ancient, which, however, relate chiefly to damages done by escap- ing horses, cattle, etc. The result of these holdings may be substan- tially stated to be that the liability of a keeper of horses, cattle, etc., for allowing them to escape upon the public streets, in case they there do damage to travellers or others lawfully upon the streets, does not rest upon any conception as to his knowledge or ignorance in respect of the vicious character of the animals, but rests upon the question whether the keeper was guilty of negligence in permitting them to escape. And here the same rule in regard to what is and what is not negligence obtains as in most other situations. It is the legal duty of every person having charge of an animal to apportion the care with which he uses it to the danger to be apprehended from a failure to keep it constantly under control. He must use such care as is de- manded by the circumstances which he knows or may reasonably be- lieve surround him.*^ It is, therefore, the duty of persons driving animals through the streets of a crowded city to use the utmost care, while it would not be necessary to use the same degree of care in driv- ing them through unfrequented lanes in the country.*^ The degree of care which the law requires depends upon the circumstances of each case. To permit a horse to go loose, unattended, upon the sidewalks of a populous city would be such negligence as to hold the owner liable for any injuries he might cause by kicking a person, even though the owner did not know of a propensity for kicking which the horse had.** And this liability is imposed by statute in some of the States.*^ If a Further as to liability for injuries See Dodwell v. Burford, 1 Modern by cattte in streets, — see Meier v. 24; Wakeman v. Robinson, 1 Bing. Shrunk, 79 Iowa 17 ; Shipley v. Col- 213. clough, 81 Mich. 624. That placing " Sullivan v. Scripture, 3 Allen a dangerous animal in a lane, (Mass.) 564; Hudson v. Roberts, 6 through which the public are Exch. 697; 20 L. J. (Exch.) 299; known to be in the habit of travel- Hewes v. McNamara, 106 Mass. 281; ling, renders the person so doing Michael v. Alestree, 2 Lev. 172; s. c. liable for injuries caused by the ani- suh nom. Michell v. AUestry, 1 Vent, mal, — see Mahoney v. Dwyer, 84 295; sm& nom. Mitchil v. Alestree, 3 Hun (N. Y.) 348; 65 N. Y. St. Rep. Keb. 650; Ficken v. Jones, 28 Cal. 608; 32 N. Y. Supp. 346. 618. "See Frazer v. Kimler, 2 Hun (N. "Dickson v. McCoy, 39 N. Y. 400. Y.) 514; s. c. 2 N. Y. S. C. (T. & C.) "Goodman v. Gay, 15 Pa. St. 188; 16; Dolfinger v. Fishback, 12 Bush Barnes v. Chapin, 4 Allen (Mass.) (Ky.) 474; Meredith v. Reed, 26 444; Bowyer v. Burlew, 3 N. Y. S. Ind. 334; Schmid v. Humphrey, 48 C. (T. & C.) 362. Iowa 652; s. c. 12 West. Jur. 475. 784 LIABILITY OF KEEPERS. [2d Ed. man negligently leaves his horse and cart unsecured in the streets, and through the act of some stranger they do damage to the plaintiff, he can recover of the owner.*' And in the case of children being in- jured by playing upon the cart thus negligently left, the defendant would be liable, although the children were trespassers and contrib- uted to the mischief.*^ But usually, whether the leaving of a horse unguarded is negligence or not, is a question for the jury to deter- mine.** But where the defendant bought a horse at "Tattersal's," and the next day took him out to "try" him in a much frequented thor- oughfare, and from some unexplained cause the horse became rest- less, and, notwithstanding the defendant's well-directed efforts to control him, he ran upon the pavement and killed a man, it was held that these facts disclosed no evidence of negligence which the judge was warranted in submitting to the jury.*" And it has been held that when, in a city, a horse attached to a wagon or carriage is found run- ning on the sidewalk, to the injury of citizens, the law will presume negligence on the part of the owner, and it lies upon him to show there was no fault on his part. The presumption in such a case is that there was negligence, unless the contrary be proved. °° § 850. Liability for Allowing Domestic Animals Naturally Vicious or Dangerous, to Escape upon the Public Streets.^ — It may often be necessary, and hence lawful, for persons to lead or drive upon the " lUidge v. Goodwin, 5 Car. & P. have been the other way, on the 190. ground that the failure to observe " Lynch v. Nurdin, 1 Q. B. 29. ' the municipal ordinance was negli- " Bennett v. Ford, 47 Ind. 264 ; gent per se. In a case in Rhode Griggs V. Fleckenstein, 14 Minn. 81 ; Island it appeared that A.'s horse Shawhan v. Clarke, 24 La. An. 300; escaped from an enclosure where it Dolflnger v. Fishback, 12 Bush was rightfully kept by A., and (Ky.) 474. And see Park v. O'Brien, strayed on to a highway where it 23 Conn. 339. injured B. In an action by Bi " Hammack v. White, 11 C. B. (N. against A. to recover damages for S.) 587. See Winship v. Enfield, 42 injury received, it was held: — 1. N. H. 197. To prove the bad halDits That B.'s cause of action rested upon of a horse at the time of an acci- negligence on the part of A. 2. That dent, evidence of particular in- if the horse escaped without negli- stances of vicious conduct is admis- gence on the part of A., and if A. sible: Whittier v. Franklin, 46 N. exercised due diligence in pursuing H. 23. and recapturing it, B. coul* not re- °° Hummel v. Wester, 1 Bright, cover. 3. That under R. I. Gen. (Pa.) 133. Where a turkey-cock, Stat., ch. 96, the presence of the without negligence on the part of horse on the highway loose and un- its owner, but contrary to a munici- attended was prima facie evidence pal ordinance, strayed upon the of negligence on the part of A. 4. highway and there did damage by That unless A. intentionally permit- frightening the horse of a traveller, ted the horse to stray at large, ires- through making its usual noises and pass would not lie, the proper rem- movements, — it was held that the edy being case; Fallon v. O'Brien, 12 owner was not liable (Zumstein v. R. I. 518. Shrumm, 22 Ont. App. 263) ; though a This section is cited in § 1296. it seems that the decision ought to VOL. 1 THOMP. NEG.— 50 I 85 1 Thomp. Neg.] care and eestraint of animals. highway animals such as bullSj rams, etc., which are by nature more or less vicious and liable to injure mankind. When this is done, the responsibility of the owner or keeper would seem to be not predicated upon the fact of keeping a vicious animal, knowing it to be such, but upon the fact of negligence in leading or driving it along the high- way without taking sufficient measures to safe-guard the travelling public. In seeming line with this theory, where a bull was not shown to have vicious propensities, but was shown to be wild, and to have been tied head and foot at the time of the injury, and the owner had notice that it would be safer to lead him than to drive him, — it was held to be for the jury to say whether the act of driving him on the highway was negligence.^ ^ In an action for an injury caused by a young stallion straying upon a highway, where the plaintiff alleged negligence on the part of the defendant in failing properly to confine it, it was held that,, having regard to the well-known propensities of young stallions, even if the fence was such as was common among farmers, and usually considered safe, the court properly submitted to the jury the question whether under the particular circumstances the fence was sufficient.^ ^ § 851. Liability for Damages Caused by the Escape of Cattle Driven Along the Public Highway.'' — Even where the rule of the common law prevails, one who drives his cattle along the public high- way is not liable as an insurer for any damages which they may cause by escaping upon the adjacent private lands; but he is liable, if at all, on the principle of negligence; and the law will exonerate him where he is not negligent in driving them so as to allow them to escape, an^ where, after they have escaped, he removes them from the lands of the private owner as soon as he reasonably can.°* Seemingly departing " Barniim v. Terpenning, 75 Mich, in the street, and moving at will, 557; s. c. 42 N. W. Rep. 967. persons who see the horse thus go- " Mcllvaine v. Lantz, 100 Pa. St. ing at large are at no fault for try- 586; s. c. 45 Am. Rep. 400. Accord- ing to stop or capture him, and if ing to an official syllabus :n Georgia, by their rushing, throwing up of "though a horse bs sensible, very hands, or other demonstrations, they gentle, and accustomed to stand un- frighten him and cause him to run hitched at his owner's door, in a away, invade the sidewalk, and in- busy, noisy street, — yet if he be jure a person passing lawfully fancy, stylish, restless, and very thereon, the owner will be respon- high-strung, the jury may infer neg- sible in damages for the injury:" ligence from leaving him loose else- Phillips v. Dewald, 79 Ga. 732; s. c. where in the same or another street, 7 S. E. Rep. 151. unattended, except by the owner a This section is cited in § 1314. watching him from a distance of "'Erdma.n v. Gottshall, 9 Pa. Su- five or six feet:" Phillips v. Dewald, per. Ct. 295; s. c. 43 W. N. C. 405; 79 Ga. 732; s. c. 7 S. E. Rep. 151. Stackpole v. Healy, 16 Mass. 35; "When a horse attached to a buggy, s. c. 8 Am EHc. 121; Tonawanda R. is, by the owner's negligence, loose Co. v. Munge;-, 5 Denio (N. Y.) 255; 786 LIABILITY OF KEEPERS. [2d Ed. from the rule of the ancient common law in regard to scienter/^ it has been held that the act of driving a wild bull two and a half years old along a public street is so obviously dangerous, that where inju- ries have resulted therefrom, it is for the jury to say whether or not it was negligence so to drive the animal, although with his head tied to one foot, after notice that it would be safer to lead him by a ring in his nose, the defendant knowing of his wildness, and understanding the nature of such an animal. 'Not would it bar a recovery that the animal had never previously attacked any one, nor that he had never actually been vicious up to the time of his attack upon the plaintiff; nor that the person then driving him had no knowledge of any vicious- ness in his nature, — if the manner of driving and managing him was negligent."^ § 852. Duty to Warn of Danger.^ — Where a man keeps a vicious animal and, in the course of his business, his servant or some other person, is brought into contact with it, it may become his duty to warn such servant or other person of the vicious nature of the animal, to the end that he may be on his guard to avoid injury. Thus, it has been held that the owner of a horse known to be vicious and liable to injure a person going into the same stall with him, is liable for inju- ries to a groom not warned of the danger, who is injured by the ani- mal in the stall while with it in the performance of his duties, al- though the animal had never before caused a like injury.'^" § 853. When Negligence Presumed and When must be Shown, Under Modern Law. — In cases where, under the rule of the law, the liability of the owner or keeper of animals for injuries inflicted by them is based upon his negligence, yet this need not be actual negli- gence; it may be presumed.^'' Where mischief is done, or injuries inflicted by animals whose generic propensities or habits are neither mischievous nor dangerous, in order to charge the owner for damage done by such animals, it is necessary to allege and prove that such owner knew or had notice that the animals were accustomed to such or similar mischief; or, to speak technically, the scienter must be al- leged and proved. In such a case, actual negligence must be shown.^^ s. c. 49 Am. Dec. 239; Tillett v. a This section is cited in § 929. Ward, L. R. 10 Q. B. Div. 17; Right- '"' McGarry v. New York &c. R. Co., mire v. Shepard, 36 N. Y. St. Rep. 18 N. Y. Supp. 195; s. c. 45 N. Y. 768 (as quickly as possible) ; Good- St. Rep. 564. Compare post, §§ 929, wyn V. Cheveley, 4 Hurlst. & N. 631 1016, 1017. (in reasonable time). Compare °' Earl v. Van Alstine, 8 Barb. (N. post, §§ 1294, 1314. Y.) 630; s. c. 1 Thomp. Neg., 1st "Ante, § 842. ed., 182. "'Barnum v. Terpenning, 75 Mich. "'Vrooman v. Lawyer, 13 Johns. 557; s. c. 42 N. W. Rep. 967. 787 1 Thomp. Ncg.] CAKE and restraint of animals. But if the mischief done is in accordance with the generic propensi- ties of the animal committing it, scienter need not be alleged or proved, but the owner is presumed negligent. An exception to this general rule of common law is found in the case of the escaping of that smaller class of animals which are not usually tamed, such as rabbits^ pigeons, etc., from the land of one to that of another. ISTo action could, in general, be supported for damage done by them; because the instant they escaped from the land of the owner, his property in them ceased. °° § 854. Liability for Transferring Vicious Domestic Animals to Others without Giving Warning of their Vicious Propensities.^ — One letting a biting or kicking horse to another for hire,'*" or leaving it with a blacksmith to be shod, or with a hostler to be groomed, — is bound to inform the party receiving the horse of his vicious habits of kicking or biting; otherwise he will be liable for the damages which happen in consequence of those habits. But it seems that the vicious habits or propensities which the owner must (when known to him) disclose to a bailee are such as are directly dangerous, — as, hiching and biting in horses, hoohing in horned animals, and biting in dogs. Thus, where the evidence was that the defendant owned a mare which had a habit of suddenly "pulling" back upon her halter when excited or restless, and that this habit was known to defendant, who left the mare at a hotel kept by the plaintiff's employer, to be cared for, giving the plaintifE no notice of the habit, and while the plaintifE was hitch- ing the mare in the stable, and in doing so had put her halter-rope through a ring, she suddenly pulled back, drawing the rope through the ring, thereby severely injuring the plaintiff's finger, which was caught between the rope and ring and torn to pieces, it was held that defendant was not bound to notify the plaintifE of this habit of the mare to pull.°^ It has been held that failing to furnish a hiching strap is not such negligence as will render the defendants, whose mare was hired to the plaintiff, liable in an action for injuries received from a kick by the mare, where the plaintiff was cautioned that he must not allow the reins to get under the animal's tail, although the jury found that the defendant had been in the habit of using such a strap. ^^ (N. Y.) 339; Stumps v. Kelley, 22 ""Campbell v. Page, 67 Barb. (N. III. 140; Wormly v. Gregg, 65 111. Y.) 113; Story on Bail., § 391a. 251 ; Buxendln v. Sharp, 2 Salk. 662. " Keshan v. Gates, 2 N. Y. S. C. ™ Kinsley v. Wilkinson, Cro. Car. (T. & C.) 288. Compare ante, § 817, 387; Cooper v. Marshall, 1 Burr, et seq.; post, § 929. 259; Bowlston v. Hardy, Cro. Eliz. "^Ohlweiler v. Lohmann, 82 Wis. 547; s. c. suh nom. Boulston's case, 198; s. c. 52 N. W. Rep. 172. That a 5 Co. 105; Bac. Abr., tit. "Game." false representation on the sale of a This section is cited in § 929. a Inill, that he is gentle, will not 788 LIABILITY OP KEEPEKS. [2d Ed. § 855. Liability for Acts of Domestic Animals Not Ferocious. — The act done, for which the owner is held responsible, need not be such only as is caused by the viciousness of the animal; for if a horse" ^ or a dog'* injure one by playfulness, the owner is equally liable, if he knew, or had good reason to know, the mischievous disposition of the animal, as if the injury were done in a spirit of the most unprovoked ferocity. Thus, it was held, under a statute in Maine prohibiting hogs from running at large, that the defendant, who was the owner of a hog, was liable for injuries to the plaintifE's daughter and car- riage by reason of his horse becoming frightened at the appearance of the hog lying at the side of the road without a keeper.®'' So, under a statute of Massachusetts, providing that "every owner or keeper of a dog shall forfeit to any person injured by it double the amount of the damages sustained by him,"*® a cause of action arose where the inju- ries were caused by biting or jumping upon the plaintiff and throwing him to the ground, and it is immaterial whether the dog was acting in play or with a vicious intent.®' § 856. Liability where Animals Injure Each Other. — The liability of A. for an injury inflicted by A.'s animal upon the animal of B., in consequence of the vicious propensities of the animal of A., will, where the common-law rule prevails, depend upon the wrong done by A. in Iceeping the vicious animal with knowledge of its vicious pro- pensities.®* § 857. What will Justify Killing Domestic Animals Other than Dogs. — In the case of valuable domestic animals committing slight injury, such as a hog hilling a chiclcen, the owner is not justified in killing the hog : the injury caused by the death of the hog being con- render the seller liable under a stat- find that defendant's horse waa ute giving a right of action for vicious, and wasj at the time of death caused by unlawful violence kicking plaintiff's colt, in charge of or negligence where the bull kills defendant's servant, who knew of the purchaser several months after- could have known of the character wards, in the absence of any facts of the animal, the leading by the to connect the representations and servant of such animal close to the death, — see Showers v. Yeaney, plaintiff's colt, whereby the colt was 9 Pa. Co. Ct. 69. kicked and its leg broken, was such "'Dickson v. McCoy, 39 N. Y. 400. negligence and carelessness on the " Line v. Taylor, 3 Fost. & Fin. part of such servant as would make 731. the defendant liable. This was held °° Jewett V. Gage, 55 Me. 538. erroneous, as deciding, as a matter " Pub. Stat. Mass., ch. 102, § 93. of law, what facts constitute negli- " Hathaway v. Tinkham, 148 Mass. gence, when that question should 85; s. c. 19 N. E. Rep. 18. be left to the jury: Campbell v. »»Marreau v. Vanatta, 88 111. 133. Trimble, 75 Tex. 270; s. c. 12 S. W. An instruction to a jury stated in Rep. 863. substance, that if the jury should 789 1 Thomp. Neg.] care and restraint of animals. sidered out of all proportion to the loss of the chicken.'" But where the plaintiff's ass, which he knew to be dangerous, and in the habit of pursuing and injuring stock, and which he permitted to run at large, was found by defendant pursuing his cow, and which he threw down and was in the act of stamping upon, it was held that the defendant was justified in killing the ass, if he believed it was necessary to save the life of the cow.'" § 858. Liability for Keeping Vicious Animals Rests upon Owner or Keeper. — The rule of the common law that the foundation of the liability is keeping a vicious animal with knowledge of its vicious propensities, has already been considered.'^ This leads to the infer- ence that the liability rests primarily upon the keeper of the animal, without regard to the question whether or not he is the owner. But, as the owner is generally the keeper, the books in many cases, in speak- ing of the liability, place it, in loose language, upon the owner or keeper; and the rule, within the foregoing principles, is that the owner or keeper is liable to third persons for any injury inflicted by the animal, except where the negligence or other fault of the person injured contributes proximately to the injury.'^ The reason of lia- bility in such cases arises out of the legal requirement to take the necessary care and control of them, so as to prevent injury, which im- plies not only the duty but the right of control.'^ Hence, he who has the care, control, and custody of animals, such as the depasturer of sheep,'* or the agister of cattle or horses,'" is equally liable with the owner for their trespasses on the land of another: the occupier of a close, and not the owner, being bound to keep the fences in repair.'® And it does not relieve the party of liability for injuries committed by an animal because he suffered it, at the request of the owner, to remain with his cattle." In general, the bailee of a vicious dog or other ani- mal who has knowledge of its vicious propensities is equally liable with the owner for any damages resulting therefrom." "Morse v. Nixon, 6 Jones (N. C.) tained in Ozburn v. Adams, 70 111. 293. See Matthews v. Fiestel, 2 E. 291) ; Cook v. Morea, 33 Ind. 497. D. Smith (N. Y.) 90. '"Tewksbury v. Bucklin, 7 N. H. "Williams v. Dixon, 65 N. C. 416. 518; Rider v. Smith, 3 Term Rep. "Arate, § 839. 766; Cheetham v. Hampson, 4 Term " Drake v. Mount, 33 N. J. L. 441; Rep. 318. and as to the contributory neglir " Frammell v. Little, 16 Ind. 251. gence of the person injured, see "Marsel v. Bowman, 62 Iowa 57. ante, § 834, et seq. One who let a farm on shares to a " Rossell V. Cottom, 31 Pa. St. 525. tenant, under a contract providing " Barnum v. Van Dusen, 16 Conn, that the landlord, who left on the 200. farm twenty cows, which were there 75 xewksbury v. Bucklin, 7 N. H. at the time of the lease, one bull, 518; Lyons v. Merrick, 105 Mass. 71; and other animals, — was held liable Ward V. Brown, 64 111. 307 (sus- to a person injured by the bull fur- 790 LIABILITY OF KEEPERS. [2d Ed. § 859. When Owner Liable and When Not. — The owner of a dog is equally liable with the keeper of it for any injury which it may do- through the exercise of its vicious propensities, and is required to exercise the same care and diligence to prevent such injuries, if he has the same knowledge of the character of the dog.''* But this principle does not apply where the animal is hired out, or even lent for such a time and under such an engagement as to give the hirer or borrower exclusive control over it. In such a case the hirer or borrower, and not the owner, is liable for damages accruing from its vicious habits.^" On the other hand, it has been held that the owner of a vicious horse is not relieved from liability for any damage which may accrue from its vicious propensities, by reason of the fact that, at the time when the damage was done, his servant had, without his knowledge or eon- sent, temporarily placed the horse in charge of a third person.'^ On the other hand, one who leases lands to another, under an agreement by which the parties are to be tenants in common of the natural in- crease of stock left on the demised premises by the lessor, no relation of principal and agent existing, other than arising from mere bail- ment, is not liable for an injury to a third person by being attacked by a trespassing ram purchased by the lessee, through whose negligence the ram escaped from the demised premises.*^ It will be perceived, from the foregoing cases, that the test of the liability or non-liability of the owner of the animal, is to consider whether he had divested him- self of the control, custody and care of the animal, so that, as between himself and the bailee of it, he has no right to resume it, or to control the latter in the manner of keeping it. § 860. Whether Both Owner and Keeper may be Liable. — Prom the reason of the rule, that is, that he alone should be liable for in- juries by animals who has the power of control over them, it would seem that the general owner will not be liable for the trespasses of animals while they are in the possession of a bailee, — for instance, nished by him under the contract, vicious: Lawlor v. French, 2 App. where, after being informed of its Div. (N. Y.) 140; reversing s. c. 14 vicious character, he refused to con- Misc. (N. Y.) 477; 14 N. Y. St. Rep. sent that proper measures be taken 721; 35 N. Y. Supp. 1077; 28 Chic, to prevent its doing any mischief. Leg. News 125. The decision seems and refused to take care of it at the to be unsound, the rule applicable request of the lessee : Lettis v. Horn- in such cases being that both prin- ing, 67 Hun (N. Y.) 627; s. c. 51 cipal and agent are liable as joint N. Y. St. Rep. 225; 22 N. Y. Supp. tort-feasors. 565. That the president and mana- " Shaw v. Craft, 37 Fed. Rep. 317. ger of a theatrical corporation was ™ Bell v. Leslie, 24 Mo. App. 661. not personally liable to an employs ^ Campbell v. Trimble, 75 Tex. kicked by a vicious horse, there be- 270; s. c. 12 S. W. Rep. 863. ing no substantial evidence that he '-Marsh v. Hand, 120 N. Y. Rep. was aware of any vicious propensity 315; s. c. 30 N. Y. St. Rep. 1003; 24 in the horse, or that the horse was N. E. Rep. 463. 791 1 Thomp. Neg.J caee and restraint of animals. when a horse is hired or loaned, or when cattle or sheep are agisted, and generally it is so held f^ but it has also been held that the common law gave the plaintiff his election to pursue either the owner or the agister of cattle for trespasses committed by them.'* The statute of Massachusetts providing that "every owner or keeper of a dog shall forfeit to any person injured by it double the amount of damage sus- tained by him,"'° is construed as not making the owner and keeper Jointly or severally liable, or both jointly and severally liable. "The object of the statute," said the court, "would appear to be to give to the injured party a remedy against the owner or keeper, but not against the owner and keeper jointly or severally, or to make them liable as independent wrong-doers, the owner for owning and the keeper for keeping the dog." The court therefore hold that when the person injured, proceeding under the statute, has made his election to sue either the owner or the keeper, he can not afterwards sue the other, although the judgment obtained against the former proves fruitless by reason of the insolvency of the judgment defendant.*" § 861. Joint Owners Liable Jointly.^ — There is no doubt of the proposition that all who take part in harboring a vicious animal may be sued jointly for damages resulting from its vicious conduct, and that notice to one of several joint keepers or harborers of such au animal, of its vicious propensities, is notice to all.^^ Under a statute which requires that "all damage done by cattle, horses, sheep, or swine, when the fence is sufficient, shall be paid by the owners of them," if the cattle and horses were jointly used and possessed by the defendants living together, and occupying the same farm, they were the owners of them within the meaning of the statute.*' No distinc- tion can be made as to the duty of controlling animals, between sole and joint owners, as to the public;'® it being an incident of the rela- tion existing between them that either might have the custody of the animals, the custody of one being, as to third persons, the custody of both. But where a statute provides^" that every owner or keeper of any dog shall forfeit, etc., and the plaintifE alleges that the defendants '=' Tewksbury v. Bucklin, 7 N. H. a This section is cited in § 841. 518; Rossell v. Cottom, 31 Pa. St ''Hayes v. Smith, 15 Ohio C. C. 525; Wales v. Ford, 8 N. J. L. 267. 300; s. c. 8 Ohio C. D. 92. Compare ''Sheridan v. Bean, 8 Mete, ante, § 39. (Mass.) 284. Compare Rossell v. »» Smith v. Jacques, 6 Conn. 530. Cottom, 31 Pa. St. 525. "' Oakes v. Spaulding, 40 Vt. 347. » Pub. Stat. Mass., ch. 102, § 93. " Rev. Stat. Mass. 1836, chap. 58, »«Galvin v. Parker, 154 Mass. 346; § 13; Rev. Stat. Me. 1871, chap. 30, s. c. 28 N. E. Rep. 244. § 1. 792 LIABILITY OF KEEPERS. [2d Ed. were owners and keepers, the plaintiff must prove that defendants were both owners and keepers. °^ § 862. Separate Owners not Liable Jointly but Severally. — At com- mon law, a joint action will not lie against separate owners of animals which unite in doing mischief. °^ Where a joint action will lie, either may be made accountable for the whole injury. The reason which makes one liable who personally joins in, or aids, or abets the wrong done by another, does not apply. That is a case of intention or voli- tion in the offender ; and the man who advises or countenances a tres- pass is the real cause. Not so in the case of animals which happen to unite in perpetrating mischief; for one of the animals may be young and feeble, and incapable of mischief by himself.'^ And the diffi- culty in accurately estimating the separate injury done by each animal furnishes no reason why one man should be liable for the mischief done by another's animal. In actions under statutes, in several of the States,"* making owners of animals liable for injuries committed by them, this rule has been adopted ;°° and it has been further held, that the jury are at liberty to adopt any reasonable rule in fixing the amount of damages done by each animal. Thus, where the animals are about equal in capacity for mischief, in the absence of proof the jury might conclude they did equal damage;"^ and in case of one being apparently of less capacity for mischief than another of two which had done the injury, the jury had the right to say that it did less damage than the other.*^ But in another case,"* under a statute"" providing that the owner or owners of dogs accustomed to kill sheep shall be liable for all damages done by them, it was decided that a joint action will lie against all the owners of several dogs which, at one time, kill " Buddington v. Shearer, 20 Pick, statute for damages done by a dog (Mass.) 477; s. c. 22 Pick. 427; to sheep, suggests another reason Smith V. Montgomery, 52 Me. 178. for the distinction: that at common "^Russell V. Tomlinson, 2 Conn, law the owner is not liable for tres- 206; Van Steenburgh v. Tobias, 17 passes upon land committed by his Wend. (N. Y.) 562; Carroll v. dog: Adams v. Hall, 2 Vt. 9; Auch- Weiler, 4 N. Y. S. C. (T. & C.) 131; muty v. Ham, 1 Denio (N. Y.) 495. s. c. 1 Hun (N. Y.) 605; Westgate But see Jack v. Hudnall, 25 Ohio St. V. Carr, 43 111. 450. 255; McAdams v. Sutton, 24 Ohio St. "Van Steenburgh v. Tobias, 17 333. Wend. (N. Y.) 562. Where the sepa- "Buddington v. Shearer, 20 Pick, rate owners have joint control, they (Mass.) 477; s. c. 22 Pick. (Mass.) may be sued jointly. See Ozburn v. 427; Partenheimer v. Van Order, 20 Adams, 70 111. 291. Barb. 479; Powers v. Kindt, 13 Kan. "Van Steenburgh v. Tobias, 17 74. Wend. (N. Y.) 562; Partenheimer "Wilbur v. Hubbard, 35 Barb. (N. V. Van Order, 20 Barb. (N. Y.) 479. Y.) 303. But see Brady v. Ball, 14 Ind. 317. ™ Kerr v. O'Connor, 63 Pa. St. 341. " Denny v. Correll, 9 Ind. 72. This °° Pa. Act of April 14, 1851. case, which was an action under a 793 1 Thomp. Neg.J care and restraint of animals. and wound sheep, and each owner is answerable for the whole damage done, in which his dog is jointly engaged. § 863. Circumstances under which Master Not Liable for Acts of his Servant. — ^But a master is not chargeable with the acts of his serv- ant if the servant acts outside of the authority given him, and not within the scope of his employment.^"" Therefore the owner of a dog is not liable for the willful act of his servant in setting his dog upon the cattle of another.^"^ And where a span of horses, detached from a railroad car, were driven through a public street by the defendant's servant, in a manner pursued for years without accident, and consid- ered by those engaged in such business as safe and discreet, the de- fendant was held not liable for an injury sustained by a citizen by reason of the horses running away, and over him, where the horses were caused to run away by the wanton assault upon the team by one in the employment of the defendant, who was not then attending to the business of his employer. ^"^ And where a servant of defendant willfully drove the chariot of his master against the .plaintiff 's chaise, but the master of the servant was not there at the time himself, nor did he in any manner direct or assent to the act of the servant, the master was held not liable.^"^ So it was held that a father was not liable for the willful act of a minor daughter in setting his dog upon plaintiff's hog, which was thereby bitten and killed, which was done in defend- ant's absence, and without his authority or approval.^"* And it is ""Middleton v. Fowler, 1 Salk. and so notified the driver, who re- 282 ; McManus v. Crickett, 1 East plied, with an oath, that he was late, 106; Storey v. Ashton, L. R. 4 Q. B. and that if plaintiff did not get off 476; ante, § 518, et seq. he would put him off; and imme- '" Steele v. Smith, 3 E. D. Smith diately thereafter drove on, striking (N. Y.) 321. and upsetting plaintiff's buggy, and '"Weldon v. Harlem R. Co., 5 injuring him. In an action to re- Bosw. (N. Y.) 576. cover damages, it was held that the "" McManus v. Crickett, 1 East evidence did not warrant a finding, 106. as a matter of law, that the act of "•Tifft V. Tifft, 4 Denio (N. Y.) the driver was with a view to injure 175. This subject is well considered plaintiff, and not with a view to his in a case in New York in which the master's service, but that this ques- syllabus seems to embody a correct tion was one of fact for the jury, expression of the law as applicable A master is liable for the wrongful to the facts there stated: "Plaintiff, act of his servant, to the injury of a while travelling in a buggy along a third person, where the servant Is en- street in the city of New York, was gaged at the time in doing his mas- stopped by a blockade of vehicles ter's business and is acting within just as he had crossed defendant's the general scope of his authority, al- track. The rear of his buggy was though he is reckless in the perform- so near the track that a car could ance of his duty, or through lack of ^not pass without hitting it. A car judgment or discretion, or from in- came up, the driver of which, after firmity of temper, or under the in- waiting a moment or two, ordered fluence of passion aroused by the plaintiff to 'get off the track.' Plaint- circumstances, goes beyond the iff was unable to move either way, strict line of his duty, and inflicts 794 LIABILITY OF KEEPERS. [2d Ed. said in Brooke's Abridgment. -^"^^ "If my servant, contrary to my will, chase my beasts into the soil of another, I shall not be punished." And in 2 Rolle's Abridgment, 553 : "If my servant, without my notice, put my beasts into another's land, my servant is the trespasser, and not I; because, by the voluntary putting of the beasts there without my assent, he gains a special property for the time, and so to this purpose they are his beasts." § 864. No such Liability unlesi Relation of Master and Servant Exists. — In any case of this kind, the relation of master and servant must be established, to hold the defendant liable. Thus, where the defendant, who was the buyer of a bullock, employed a licensed drover to drive it, the drover hired a boy to do the driving, and mischief was occasioned by the bullock, through the careless driving of the boy, it was decided that the relation of master and servant did not exist be- tween the boy and the owner of the bullock, and therefore the defend- ant was not liable.^ °^ § 865. Liability of Liverymen and Other Hirers and Lenders of Horses. — If a livery-stable keeper, or other person, hiring or lending a horse to another, knows of any vicious propensity of the animal, ren- dering it dangerous for the use intended, it is his obvious duty to warn the other party of that fact, but if he does this, and nevertheless the other party elects to keep and use the horse, the owner will not be re- sponsible for any damage caused to such other person, by reason of the horse exercising its evil propensities, — as, for example, running away.^°° Generally speaking, a liveryman is liable for injuries which result to a customer from furnishing him with a vicious horse which the liveryman knew, or by the- exercise of reasonable care ought to have known, was dangerous. ^"^ On the other hand, a liveryman does not, by letting a horse, warrant the customer that the horse is free from defects, of which the liveryman has no knowledge, and which he could not have discovered by the exercise of reasonable care, so as to render himself liable to the customer for an injury caused by such a defect.'"* Roundly stated, the law no doubt is that the keeper of a livery stable who furnishes a team, a vehicle, and a driver, for hire, discharges himself from liability for any accident which may happen, by showing that he exercised the skill, care and diligence ordinarily unnecessary and unjustifiable 'in- "" Trottier v. Belec, Rap. Jud. Que- jury:'" Cohen v. Dry Dock &c. R. bee, 15 C. S. 284. Co., 69 N. Y. 170. '"' Lynch v. Richardson, 163 Mass. ■°*aTit. "Trespass," pi. 435. 160; s. c. 39 N. E. Rep. 801. '" Milligan v. Wedge, 12 Ad. & El. "' Copeland v. Draper, 157 Mass. 737. Licensed drovers are independ- 558; s. c. 19 L. R. A. 283; 32 N. B. ent contractors: Ante, § 638. Rep. 944. 795 1 Thomp. Neg.J care and kesteaint of animals. exercised by those engaged in the same pursuit, to furnish a safe coach, harness and horse, and a competent and careful driver; and he is not required by the law to exercise the utmost care.^"' § 866. Pleading in Actions for Injuries from Animals. — The alle- gation that a ram was in the habit of attacking and butting mankind, and that he attacked and injured the plaintiff's son, has been held a sufficient allegation that the ram was vicious and dangerous. ^^^ A complaint alleging, in substance, that the defendant kept a dog which, though he well knew was fierce and of a dangerous nature, and im- proper to go at large, and accustomed to attack and bite mankind, — yet he negligently allowed it to go at large without being properly secured, — sufficiently alleges that he permitted the dog to run at large, knowing his vicious disposition.^ ^^ If the declaration charges that the mischief was done by the defendant's dog, while trespassing with the defendant on the land of the plaintiff, then, on a principle already considered,^^^ it is not necessary to aver that the defendant had notice of the vicious disposition of the dog. The trespassing of the dog is the trespassing of the defendant, and in such ease, as we have seen, the defendant is liable without proof of scienter .'^'^^ § 867. Burden of Proof in such Actions. — Where the action pro- ceeds upon the principles of the common law, that the knowledge of the defendant of the vicious character of the animal is essential to charge him with liability, it follows that this must not only be averred, but that the burden of proving it rests upon the plaintiff ; and it has been held that this is so, although the animal belongs to a class of animals of known dangerous propensities.^^* Where the issue was whether the defendant was negligent in letting a horse for hire which was in the habit of kicking, without sufficiently warning the plaintiff, the burden of proving negligence was upon the plaintiff, and did not shift during the trial. "^ § 868. Points of Evidence in such Actions. — In an action against the owner of a dog for an injury done by it to a quantity of meat, it has been held proper to receive testimony as to the dog's vicious ehar- MB j^ liveryman does not warrant ^^ Ante, § 842. that his driver is well acquainted "' Green v. Doyle, 21 111. App. 205 ; with the roads over which he is re- post, § 904. quired to go: Payne v. Halstead, 44 '"Curtis v. Schlosser, 14 Pa. Co. 111. App. 97. Ct. 600; s. c. 3 Pa. Dist. R. 598. "° Graham v. Payne, 122 Ind. 403 ; "° Ohlweiler v. Lohmann, 88 Wis, s. c. 24 N. B. Rep. 216. 75; s. c. 59 N. W. Rep. 678. '"Clanin v. Fagan, 124 Ind. 304; B. c. 24 N. E. Rep. 1044. 796 iilABILITY OF KEEPERS. r2d Ed. acter and roving propensities, as having some bearing on the proba- bilities.'^^' In an action to recover for injuries caused by a dog which the defendant admitted was vicious, but claimed that he kept securely chained, evidence that he knew that the dog broke away, and, unpro- voked, bit a child, only a short time before plaintiff was injured, has been held admissible to show that he did not keep the dog securely chained, and to impeach his credibility.'" "» Cheney v. Russell, 44 Mich. 620. s. c. 6 N. Eng. Rep. 655; 14 Atl. Rep. •"Worthen v. Love, 60 Vt. 285,' 461. 797 1 T.'icnnp. Neg.] cake and restraint cf animals. CHAPTER XXX. PROOF OF SCIENTER. Section 872. Knowledge ture of proved. Knowledge of the vicious na- the animal, how 873. of the vicious na- ture of the animal presumed and proved hy circumstances. 874. Evidential facts tending to show such knowledge. 875. Owners or keepers presumed to have common knowledge with reference to the propensities of certain animals. Section 876. Further as to proof of scienter. 877. Further as to such proof, with instances and illustrations. 878. Knowledge of agent or servant of vicious propensities of ani- mal, when knowledge of prin- cipal or master. 879. When knowledge of wife of vicious propensities of ani- mal imputable to husband. § 872. Knowledge of the Vicious Nature of the Animal, How Proved. — Upon the question what will be proof of knowledge on the part of the keeper of the animal of its vicious or mischievous propen- sities, it is to be observed that it is no longer deemed necessary that the animal should actually have committed the same injury before, to the knowledge of its keeper ; but it is sufficient if its keeper has notice that its disposition is such that it will be likely to commit an injury similar to that complained of.^ In another case it has been well ob- served that the notice of such propensities must be such as to put a prudent man on his guard.^ Evidence that the animal was notori- ously cross and vicious and that such was its general reputation in the ' Robinson v. Marino, 3 Wash. 434; s. c. 28 Pac. Rep. 752; Kolb v. Klages, 27 111. App. 531; Warner v. Chamberlain, 7 Houst. (Del.) 18; Godeau v. Blood, 52 Vt. 251; s. c. 36 Am. Rep. 751; Curtis v. Mills, 5 Car. & P. 489; Jones v. Perry, 2 Esp. 482; Worth v. Gilling, L. R. 2 C. P. 1; Judge V. Cox, 1 Stark. 285; Mc- Caskill V. Elliott, 5 Strobh. L. (S. C.) 196; Barhart v. Youngblood, 27 Pa. St. 331; Flansburg v. Basin, 11 Ch. Leg. N. 282. Contrary to the doctrine of the text, without sup- port, principle, or sound authority, 798 is a holding to the effect that the owner of a dog is not liable for dam- ages from his biting another, un- less the dog had, to the knowledge of the owner, bitten or attempted to bite some other person befdre; and that it is not sufficient evidence of his vicious character to charge the owner with liability for biting a human being, that the dog had at- tacked and bitten a goat, to the knowledge of the owner: Osborne V. Chocqueel (1896), 2 Q. B. 109. = Fake v. Addicks, 45 Minn. 37. PROOF OF SCIENTER. [2d Ed. neighborhood where it was kept, is admissible for the purpose of show- ing that its keeper knew that such was its disposition ; since this cre- ates a strong probability of such knowledge.^ But it has been held that one who uses a horse is not chargeable with knowledge of its possessing any vicious propensity by reason of its occasional display of temper when teased, struck or punched with sticks ;* or because he knew that the horse had kicked on prior occasions, when struck or teased.^ § 873. Knowledge of the Vicious Nature of the Animal Presumed and Proved by Circumstances. — The tendency of the courts to place the liability of the owner or keeper of vicious animals on the footing of negligence, is shown in holdings in New York already adverted to,* to the effect that the owner or keeper of a vicious animal may be chargeable with knowledge of its vicious propensities. It has been held in the same jurisdiction that he is so chargeable where he allows it to run at large without exercising ordinary supervision over it, when such knowledge could have been obtained if he had inquired and supervised the animal in the ordinary way;^ and this is a sound and just conclusion. It is scarcely necessary to add that while, on the one hand, according to the ancient and still prevailing conception, there is no presumption of law that animals mansuetae naturae, such as horses, cattle, dogs, and the like, are vicious or dangerous, it is other- wise if the animals are ferae naturae,^- — a rule which, in the case of lulls, dogs, rams, and possibly other domestic animals, is, in the greater number of cases, contrary to the fact, — yet that knowledge of the vicious propensities of such animals — for example, a dog — on the part of their harborers or keepers, need not ie actually proved, but may be inferred from circumstances f and, as seen in a succeeding ^ Fake v. Addicks, 45 Minn. 37. of a dog, which had manifested a * Lawlor v. French, 2 App. Div. disposition to bite persons, of which 140; s. c. 73 N. Y. St. Rep. 488; 37 the keeper had notice, could not es- N. Y. Supp. 807. cape liability for a subsequent bite " McHugh V. New York, 31 App. of the dog, on the ground of its gen- Div. (N. Y.) 299; s. c. 52 N. Y. Supp. eral peaceable disposition: Kennett 623. See also Lawlor v. French, 2 v. Engle, 105 Mich. 693; s. c. 2 Det. App. Div. (N. Y.) 140. So, it has been L. N. 215; Ohio Leg. News 656; 63 held that the fact that the owner of N. W. Rep. 1009. a dog has seen it run out to the " Ante, §§ 845, 846. fence and 'bark, is not sufficient no- 'Turner v. Craighead, 83 Hun (N. tice of its vicious habit of jumping Y.) 112; 63 N. Y. St. Rep. 853; 31 against the fence so as to frighten N. Y. Supp. 369. horses, to render the owner liable 'West Chicago Street R. Co. v. for injuries from the running away Walsh, 78 111. App. 595; May v. Bur- et a horse so frightened : Bradley dett, 9 Q. B. 101. See also Vrooman V. Myers, 10 Lane. L. Rev. 137; a v. Lawyer, 13 Johns. (N. Y.) 339. conclusion which should have been "Hayes v. Smith, 15 Ohio C. C. exactly the other way. It was an 300; s. c. 8 Ohio C. D. 92. obvious conclusion that the keeper 799 1 Thomp. Neg.] care and restraint of animals. paragraph/" such harborers or keepers are presumed to be acquainted with the propensities of animals of the particular class. On the other hand, the mere fact that a young horse, not broken to harness, became unmanageable and injured a person attempting to aid the owner in hitching him to a wagon, does not show that he was vicious or gener- ally unsafe, or that the owner's statement that he was gentle was un- true. ^^ § 874, Evidential Facts Tending to Show such Knowledge. — Evi- dence of scienter on the part of the keeper of the animal has been dis- covered in the following circumstances: — That the dog had been in the possession of the defendant for a considerable length of time, and was in the habit of chasing, worrying or attacking passing teams in a vicious manner;" that the dogs in question had exhibited a vicious character on two previous occasions, although generally well be- haved ;^^ that the dog was ferocious to the knowledge of the owner, who had sometimes confined and muzzled him, without reference to the question whether it had ever bitten anybody;^* that the ram had attempted to butt persons before and had butted one of the wit- nesses;^' that the dog habitually assailed people on the street near the residence of the defendant, before the plaintiff was bitten, and that it had attacked the driver of a wagon, and that the plaintiff's employer informed the defendant of the habits of the dog, and that the defendant was also informed that the dog had attacked another person and torn his coat;^" that on one previous occasion the dog ran at a person, growling and showing its teeth, of which fact its keeper had knowledge;^' that the dog had, on two previous occasions, to the knowledge of the owner, exhibited a habit indicating an intention to bite, although it had not actually bitten anyone;^' that the owner of the dog habitually kept him confined;^'' in case of a hull doing an injury while being led through the streets of the city by the servant of the owner, the statement of the owner, after the accident, that it was careless in his servant to lead the bull in the manner in which he was led, — the same being in the nature of an admission that the bull needed to be kept under control, and that the care taken in driving him ^"Post, § 875. ''Graham v. Payne, 122 Ind. 403; "Finney v. Curtis, 78 Cal. 498; s. c. 24 N. E. Rep. 216. s. c. 21 Pac. Rep. 120. " Webber v. Hoag, 28 N. Y. St. '-Knowles v. Mulder, 74 Mich. Rep. 630; s. c. 8 N. Y. Supp. 76. 202; s. c. 41 N. W. Rep. 896. "Wood v. Vaughan, 28 N. B. 472. " Mann v. Weiand, 81% Pa. St. " McConnell v. Lloyd, 9 Pa. Super. 243. Ct. 25; s. c. 43 W. N. C. 245. "Godeau v. Blood, 52 Vt. 257; s. " Warner v. Chamberlain, 7 Houst. c. 36 Am. Rep. 751. (Del.) 18. 890 PROOF OK SCIENTER. [2d Ed. through the street was not sufficient j^" the fact that the dogs which did the injury were watch dogs, and that the owner habitually kept them confined by day and turned them loose at night, are facts from which a knowledge of their dangerous character may be inferred; but not froSi fact of his wife asking his daughter why she had not tied them.^^ § 875. Owners or Keepers Presumed to have Common Knowledge with Reference to the Propensities of Certain Animals.^ — With refer- ence to domestic animals of a class which are often, if not generally, vicious and dangerous, it is a just conclusion that the owners or keep- ers of such animals will be presumed to know what is common knowl- edge with regard to the propensities of anifnals of the particular class. ^^ The conclusion of a subordinate court in Ohio, that the keeper or harborer of an animal that frequently develops and displays vicious propensities, like that of a dog, is chargeable with knowledge of such vicious habits of the animal as must have become known to him if he had exercised such reasonable care and watchfulness as a prudent man should exercise under the circumstances,^^ — though possibly not supported by the numerical weight of authority, is emi- nently sound and just. § 876. Further as to the Proof of Scienter. — There is no rule as to the number of instances of pernicious mischief done by an animal, of which the owner must have had notice in order to charge him with knowledge of its mischievous disposition.^* One,^° or two,^^ or three^^ previous instances of a dog attacking a man, sheep, or other dogs, or a cow hooking a horse, ^* have been held sufficient for this purpose. Proof of a subsequent act of viciousness, although known to the owner, is of course immaterial.^* And it is no defense to the owner, if it is shown that he knew the animal had been guilty of previous acts of "■Linnehan v. Sampson, 126 Mass. 496; Smith v. Pelah, 2 Stra. 1264; 506. Kittredge v. Elliott, 16 N. H. 77; ^ Goode V. Martin, 57 Md. 606 ; Fleeming v. Orr, 2 Macq. H. L. Cas. s. c. 40 Am. Rep. 448. 14; s. c. 29 Bng. Law & Bq. 16. a This section is cited in § 873. '^Buckley v. Leonard, 4 Denio (N. "Linnehan v. Sampson, 126 Mass. Y.) 500. 506; Hammond v. Melton, 42 111. "Wheeler v. Brant, 23 Barb. (N. App. 186. Y.) 324. ^ Hayes v. Smith, 15 Ohio C. C. =«Coggswell v. Baldwin, 15 Vt. 300; s. c. 8 Ohio C. D. 92. 404. =* Arnold v. Norton, 25 Conn. 92; ''"Thomas v. Morgan, 5 Tyrw. Charlwood v. Greig, 3 Car. & Kir. 1085; 2 Cromp. M. & R. 496; Fair- 46. child V. Bentley, 30 Barb. (N. Y.) ^'Woolf V. Chalker, 31 Conn. 131; 147. "iOomis V. Terry, 17 Wend. (N. Y.) VOL. 1 THOMP. NEG. — 51 801 1 Thomp. Neg.] care and kestkaint of animals. mischief, to prove that the animal was generally inoffensive.'" But in a case where the evidence was conflicting as to whether the plaintiff was injured, and as to whether the alleged previous acts of ferocity on the part of the animal were not mere playful antics, the dog was al- lowed to be brought into court before the jury, to assist them ie judg- ing of his temper and disposition.^^ The act complained of need not be exactly siinilar to former acts of viciousness, to charge the owner; but as soon as he knows, or has good reason to know, that the animal is likely to do mischief, it is his duty to restrain him,'^ — as in the case of a dog which is accustomed to bite sheep, and which afterwards bites a horse.'^ So, in an action for keeping a dog which was accus- tomed to worry sheep, and which had worried the plaintiff's sheep, it was held that evidence .that the dog was of a fierce and mischievous disposition, and that he had once before attacked a man, was sufficient to charge the defendant."* And in an action for damage done to a horse by a bull, evidence of a previous attack by the bull upon a man was held competent evidence to go to the jury."" Some of the older cases, however, seem to hold that the injury complained of must be precisely similar to former acts which were known to the owner. "° Lord Cockburn, in speaking of actions for dogs worrying sheep, said "every dog became entitled to at least one worry." And to this re- mark, in part, is attributed the passing of acts in England, shortly afterwards, dispensing with proof of scienter in cases of action for dogs worrying sheep. Yet the act done, of which there is proof the owner had knowledge, must be such as to furnish a reasonable infer- ence that the animal is likely to commit an act of the kind complained of."^ For instance, it has been held that it will not support an action against the owner of a dog for biting a man, to show that he had knowledge of the dog's propensity to bite animals,"^ unless there is an allegation of general ferocity of disposition upon the part of the dog ; for he might very well have courage to attack animals, and yet be en- tirely harmless as to human beings. And the fact that a dog had chased strange cattle from his master's land, when directed to do so by his master, or one of his family, or that it was his disposition to keep ™ Buckley V. Leonard, 4 Denio (N. 617; s. c. 2 Stark. 212; 1 Barn. & Y.) 500. Aid. 620. =' Line v. Taylor, 3 Fost. & Fin. '» Cockerham v. Nixon, 11 Ired. L. 731. (N. C.) 269. ==Kittredge v. Elliott, 16 N. H. 77; ^ Mason v. Keeling, 12 Modern Pickering v. Orange, 2 111. 338, 492; 332; s. c. 1 Ld. Raym. 606. Cockerliam v. Nixon, 11 Ired. L. (N. " Jenkins v. Turner, 1 Ld. Raym. C.) 270. 109; s. c. 2 Salk. 662; Tupper v. '" Jenkins v. Turner, 1 Ld. Raym. Clark, 43 Vt. 200. 109; s. c. 2 Salk. 662. =» Keightlinger v. Egan, 65 111. 235. =* Hartley v. Harrlman, 1 Holt 802 PROOF OF SCIENTEK. [2d Ed. trespassing stock from his master's premises, does not prove a vicious propensity.^" § 877. Further as to such Proof, with Instances and Illustra- tions. — In a case in the English Court of Common Pleas (1873), it appeared that a passenger in an omnibus was injured by a blow from the hoof of one of the horses, which had kicked through the front panel of the vehicle. There was no evidence to show that this particu- lar horse was a vicious horse, or a kicker, but it was proved that the panel bore marks of other kicks, and that no precaution had been taken, by the use of a kicking-strap or otherwise, against the possible consequences of a horse striking out, and no explanation was offered on the part of defendants. It was held that there was evidence of negli- gence proper to be submitted to a jury, Bovill, C. J., saying : "Proof having been given that the horse in question had misconducted him- self in the way charged, the burden of showing that he was not habitu- ally a kicker, or something to account for his having kicked on this particular occasion, lay on the defendants. The mere fact of his hav- ing kicked out, was, I should say, prima facie evidence for the jury. But there was further evidence. It was proved that there were marks of other kicks on the omnibus besides that which was made on the occa- sion in question. It was left in doubt how those marks were pro- duced. It was impossible to withdraw the evidence from the jury. The defendants might, and ought to, have explained it. And when it is said that all horses are prone to kick, and that a single act of kick- ing may be no fault in a horse, then it becomes a fair question for the jury whether, that being so, it was not the duty of the defendants to provide some means to guard against such a contingency, such as a kicking-strap or board. It is urged that it is not usual for private individuals to apply such contrivances to their carriage-horses ; but the answer to that is, that private individuals generally take care to pro- vide themselves with horses which do not kick. Where a horse, from no assignable cause, kicks out, I think the presumption is that he is a kicker. I think there was clearly evidence for the jury, and that the rule should be discharged."*" In an American case, — an action for damages caused by an attack by dogs, — there was evidence tending to prove that one of them was kept chained a portion of the time; that one of the defendants had warned a party to beware of them. It was shown that they were in the habit of running out furiously at passers- by, and indicating a disposition to inflict injury upon them, and were occasionally called in by persons in the defendants' employment ; that ■" Spray v. Ammerman, 66 111. 309. " Simpson v. London General Om- nibus Co., L. R. 8 C. P. 390-393. 803 1 Thomp. Neg.] care and resteaint of animals. the defendants had caused to be erected a sign upon the premises, not in sight of the place where the plaintiff was passing, inscribed, "Be- ware of the Dogs ;" and that the other defendant, when apprised of the injury inflicted by them upon the plaintiff, after expressing his regret, said : "They were large dogs, and he must have had a serious time." It was held that, upon this evidence, the court properly submitted it to the jury to determine whether the dogs were vicious to an extent that endangered life or limb, and prone to attack persons, and that the defendants had knowledge of this propensity.*^ So, in an action for injury done to the plaintiff by a bull attacking and goring him while he was walking along the street, wearing a red handkerchief, where defendant was driving the bull, it having been proved that after the accident the defendant said the red handkerchief was the cause of the accident, for that he knew that the bull would run at anything red, and that on another occasion he said he knew a bull would run at anything red, — it was held this was evidence of scienter.*^ But, of course, such admissions on the part of the defendant that he was aware of the peculiar propensity of the animal, in order to go to the jury, must refer to a time prior to the committing of the injury,*^ An offer by the defendant to make compensation to the plaintiff for his injuries would be very slight evidence of scienter, and, if unaccom- panied by cumulative facts, would hardly be received.** § 878. Knowledge of Agent or Servant of Vicious Propensities of Animal, When Knowledge of Principal or Master. — While, as has been stated,*" it is required, in order to make an owner liable for special and non-natural tendencies of animals, to show notice on his part of these tendencies, yet, for the purposes of a civil action, knowledge of his agent, acting within the scope of his delegated power, is competent to affect his master with notice. If the owner of a dog appoint a servant to keep it, the servant's knowledge is the knowledge of the master.*^ But on the other hand, knowledge of the vicious propensi- ties of an animal communicated to or acquired by a servant or agent who is charged with no duty which will include such a special duty, is not imputable to the master. For example, the mere fact that a servant may know of the vicious character of a dog which is accus- tomed to follow him. while about his master's business, but which has not been put in his charge by the master, has been held not imputable, " Rider v. White, 65 N. Y. 54. Thomas v. Morgan, 2 Cromp. M. & "Hudson V. Roberts, 20 L. J. R. 496; s. c. 5 Tyrw. 1085. (Exch.) 299; s. c. 6 Exch. 697. '^ Ante, § 842. " Cooke V. Waring, 2 Hurl. & Colt. ^ Baldwin v. Casella, L, R. 7 332. Exch. 325; 41 L. J. (Exch.) 167; 21 "Beck V. Dyson, 4 Camp. 198; Week. Rep. 16; 26 L. T. (N. S.) 707. 804 PROOF OF SCIENTER. [2d Ed. as matter of law, to the master.*' For example, when this question arose, it was said that notice of the vicious propensities of the dog, given to the porters employed about the premises, would not suffice, but that if brought home to a person who had the general management of the yard in which the defendants themselves could not be supposed to be occupied, and who had authority to say whether a dog should be kept there or not, or whether it should be chained up or not, it would be otherwise.** Where the defendant had deputed to his coachman the care and control of the dog which did the mischief, it was held that a notice to the coachman of the vicious propensities of the dog was a notice to the defendant.*^ In another action for injuries by a dog, where it was proved that two persons, who had upon previous oc- casions (one of them twice) been attacked by the dog, had gone to the defendant's public-house and made complaint to two persons who were acting as bar-men, serving customers, and one of them had also com- plained to the bar-maid, but there was no evidence that these com- plaints were communicated to the defendant, nor was it shown that either of the two men spoken to had the general management of the defendant's business, or had the care of the dog, Lord Coleridge, C. J., said: "It appears to me that the persons to whom the notice was given might reasonably be presumed to have had authority to receive such notice, and to have made it their duty to convey it to the defend- ant, and that they did, in fact, do so." And it was held that this was sufficient evidence of scienter to be left to the jury."" So, also, it has been held that where an agent is authorized to sell a flock of sheep, and sells a portion of them with a knowledge that the sheep are dis- eased, and does not communicate that fact to the purchaser, his prin- cipals, although they have no actual notice of the fraud, are liable civiliter to respond in damages ; and the damages are not limited to the loss of the sheep purchased, but extend to other sheep to which the dis- temper is communicated. °^ But, as before stated, the agent, for whose knowledge the owner is responsible, must be one whose duty it is to receive such knowledge and communicate it to his principal. There- fore, in a case where it appeared that the plaintiff, innocently and without negligence, went into the premises of the defendant, a cor- poration, where he was bitten by a dog, which was chained in a place in which he could not be seen by the plaintiff ; and the dog had previ- "Twigg V. Ryland, 62 Md. 380; "Baldwin v. Casella, L. R. 7 s. c. 50 Am. Rep. 226. Exch. 325; 47 L. J. Exch. 167; 21 "Stiles V. Cardiff Steam Nav. Co., Week. Rep. 16; 26 L. T. (N. S.) 207. 33 L. J. (Q. B.) 310; and the prin- ""Applebee v. Percy, L. R. 9 C. P. ciple of this case was followed' in a 647; 30 L. T. (N. S.) 785; 43 L. J. very clear opinion by Alvey, C. X, (C. P.) 365. in the Court of Appeals of Mary- °' Jeffrey v. Bigelow, 13 Wend. (N. land: Twigg v. Ryland, 62 Md. 380. Y.) 518. 805 I Th«mp. Neg.] care and restraint of animals. ously bitten a person, as was knoiyn to some of the servants of the de- fendant, but who had no control over the affairs of the corporation or over the dog, it was held that there was no evidence to show that the defendant had knowledge of the dog's propensities."^ Where a hostler employed by a street railroad company was kicked and bitten by a vicious horse belonging to the company, while feeding it, it was held that a notice of the vicious character of the horse to the superintend- ent of the stable and to a superior hostler of lower authority than the superintendent, who had other hostlers under his control, — was im- putable to the company, in such a sense as to take the question whether the company was chargeable with such notice, to the jury.^^ § 879. When Knowledge of Wife of Vicious Propensities of Animal Imputable to Husband. — In an action for an injury inflicted by the bite of a dog, in order to establish the scienter, it was proved that the wife of the defendant (who was a milkman) occasionally attended to his business, which was carried on upon his premises, where he kept the dog, and that a person had gone there and made a formal complaint to his wife, for the purpose of its being communicated to her husband, of the dog having bitten such person's nephew. Upon this, it was held that there was evidence of the husband's knowledge of the dog's propensity to bite, — Montague, J., saying : "It may be supposed that the wife did communicate the message to her husband, from the fact that they were not only living together in the same house, but that she was assisting him in his business."^* It has been laid down gen- erally that the owner of a dog of a vicious and ferocious nature, of which fact knowledge has been brought home to his wife, is liable for an injury inflicted by the dog, although no actual notice of his fero- cious nature has been given to him.'^" Although, in an action for in- juries resulting from the bite of a dog, notice to the wife may be suffi- cient evidence of the scienter to fix the husband, yet the converse does not hold, and a notice to the husband will not, taken alone, be sufficient proof of the scienter to render the wife liable after her hus- band's death. ^* "^Stiles V. The Cardiff Steam ""Gladman v. Johnson, 36 L. J. (C. Nav. Co., 33 L. J. (Q. B.) 310; 10 P.) 153. Jur. (N. S.) 1199; 12 Week. Rep. ""Barclay v. Hartman, 2 Marv. 1080; 20 L. T. (N. S.) 844. (Del.) 351; s. c. 43 Atl. Rep. 174. "= McGarry v. New York &c. R. ™ Miller v. Kimbray, 16 L. T. (N. Co., 18 N. Y. Supp. 195; s. c. 45 N. Y. S.) 360. St. Rep. 564. 806 DOGS. [2d Ed. CHAPTER XXXI. DOGS. Section 881. Liability at common law for keeping vicious dogs. 882. Modern tendency to place the liability on the footing of negligence. 883. Liability for keeping vicious dogs in the absence of such statutes. 884. Statutes dispensing with proof of scienter in the case of dogs. 885. Further glimpses at statutes against dogs. 886. Liability for keeping dogs un- der the civil code of Louis- iana. 887. Effect of these statutes on the defense of contributory negli- gence. 888. Liability for injuries commit- ted by dogs while trespass- ing. 889. Liability for injuries to tres- passers committed by vicious dogs. Section 890. Rule of liability where the per- son injured comes upon the premises of the owner or keeper of the dog upon a law- ful errand. 891. Status of dogs as property. 892. Railroad companies liable for the negligent killing of dogs. 893. What will justify killing the dogs of another. 894. Who deemed "keeper" or "own- er" of a vicious dog. 895. Actual custody not necessary to establish liability. 896. Liability of master for dam- ages caused by vicious dogs kept by his servant. 897. Liability of corporations keep- ing dogs. 898. Liability how affected by the relation of husband and wife. 899. Liability of master for damages caused by the negligence of his servants in caring for or using master's animals. 900. Liability for setting dogs upon trespassing animals. § 881. Liability at Common Law for Keeping Vicious Dogs. — At common law, the owner of a dog is not liable for damages resulting from the vicious or mischievous acts of the animal, unless he had Icnoivledge of its mischievous or vicious propensities. The presump- tion is that a dog is tame, docile, and harmless, both to persons and property; and in order to charge the owner for his mischievous acts, scienter must be proved.^ 'Dearth v. Baker, 22 Wis. 73; Slinger v. Henneman, 38 Wis. 504; Kertschacke v. Ludwig, 28 Wis. 430; Fairchild v. Bentley, 30 Barb. (N. 807 1 Thomp. Neg.] care and restraint of animals. § 882. Modern Tendency to Place the Liability on the Footing of Negligence.* — Under this head a marked tendency in modern decis- ions is discovered to assimilate to the law of negligence in other situ- ations and placeSjthe liability of the owner or harborer of the dog upon the solution of the question whether he has exercised reasonable care in restraining him, having regard to his propensities.^ The doc- trine was thus expressed in a modern case in Indiana: "The law is well settled that whoever keeps a dog that has a propensity to bite mankind is required to keep him confined, and if he fails to do so he must respond in damages for the animal's ferocious act to any person injured thereby if he was guilty of no contributory negligence."* § 883. liability for Keeping Vicious Dogs in the Absence of Such Statutes. — But where statutes have not been interposed, the general theory of the American courts is that the common-law rule prevails making the owner of a dog liable for an injury committed by it in the exercise of its vicious propensities, if he had Tcnowledge of such pro- Y.) 147; Read v. Edwards, 17 C. B. (N. S.) 245; s. c. 34 L. J. (C. P.) 31; Thomas v. Morgan, 2 Cromp. M. & R. 496; Hinckley v. Emerson, 4 Cow. (N. Y.) 351; Durden v. Bar- nett, 7 Ala. 169; Sherfey v. Hartley, 4 Sneed (Tenn.) 58; Soames v. Bar- nardiston, 1 Freem. (Bng.) 430. There is an untenable decision to the effect that the owner or harborer of a dog known to be in the habit of chasing persons or horses on the road adjoining his premises, is not liable to persons for injuries caused by their horses becoming frightened by the dog, where he has no knowl- edge that an Injury has resulted from the habits of the dog, or of any acts of the dog likely to result in injury, and where he exercises ordinary care to prevent the dog from inflicting injuries: Shaw v. Craft, 37 Fed. Rep. 317, charge to jury by Walker, J. On the other hand, the clear rule of law Is that the owner of a dog which, to his knowledge, is in the habit of jump- ing at the heads of horses, is liable for injuries resulting from such act by the dog while he is taking him along a public street: Putnam v. Wigg, 59 Hun (N. Y.) 627; s. c. 37 N. Y. St. Rep. 304; 14 N. Y. Supp. 90. In an action for damages for the bite of a ferocious and vicious dog, it was held error to refuse to give the following Instruction, re- 808 quested by the plaintiff: "The fact that the defendant, or defendant's wife, may have been able to control the dog by calling him off or speak- ing to him when he would run at any one, even if the jury believe this fact proven, is not such a restrain- ing as is contemplated by the law, and would not relieve or excuse the defendant from the charge of negli- gence, if the other facts in such cause are proven that would require the defendant to restrain the dog." This instruction was pertinent to the evidence, and the principle in- volved in it was not embodied in any other instruction which was given; and therefore the court held that the refusal of it was error: Dockerty v. Hutson, 125 Ind. 102. It will not escape attention that the instruction does not proceed upon the principles of the common law, which makes the owner of the vicious dog liable for keeping him, knowing him to be vicious, but that it proceeds upon the theory of his negligence in not restraining him. a This section is cited in § 845. ' See, for a charge to a jury on this ground, Shaw v. Craft, 37 Fed. Rep. 317; also Jacoby v. Ockerhau- sen, 59 Hun (N. Y.) 619, mem.; s. c. 37 N. Y. St. Rep. 710; 13 N. Y. Supp. 499. ' Dockerty v. Hutson, 125 Ind. 102; s. c. 25 N. E. Rep. 144. DOGS. [2d Ed. pensities,* but otherwise not. In Canada, the English conception seems to obtain that the liability is for negligence in the keeping of the vicious animal with knowledge of its propensities, and not in failing to restrain it ;" and such is the rule generally prevailing in the United States, where not changed by statute." But in this country, the courts have, in several instances, so far drifted away from the com- mon-law rule as to make the gravamen of the injury, not the keeping of the vicious dog knowing its propensities, but the failwe to restrain it so that it can not attack and bite people who may lawfully come into its presence ;'' and statutes in conformity with this theory, abro- gating the common-law doctrine that scienter of the owner must be proved in order to maintain an action for damages for injuries in- flicted by vicious domestic animals have been enacted in the States noted in the margin.'^ But deference is still paid to the rule of the ancient law which makes the keeper of such a dog an insurer against damage caused by its vicious propensities; and therefore, where the keeper endeavors to restrain him and uses due diligence to that end, but the dog breaks loose by some accident, or by the intervening tres- pass of some third person in untying him, and injures another, — ^the keeper of the dog will be answerable in damages for the injury.* § 884. Statutes Dispensing with Proof of Scienter in the Case of Dogs.^ — The foregoing doctrines of the common law apply with pe- culiar force to the keeping of vicious dogs. Indeed, it is scarcely to be doubted that it was with reference to such animals that the rule was first established. The nobility and gentry of England kept packs of hounds for their own pleasure. These dogs were in the habit of biting and worrying the common people. The judges were in the habit of framing their rules of case-made law in favor of the nobility and * Perkins v. Mossman, 44 N. J. L. * This seems to have been the 579. ground on which the following cases "Wood V. Vaughan, 28 N. B. 472. proceeded: Robinson v. Marino, 3 "Ante, §§ 839, 841, 844; Marreau Wash. 434; s. c. 28 Pac. Rep. 752; V. Vanatta, 88 111. 133. Quilty v. Battle, 61 Hun (N. Y.) 'Jacoby v. Ockerhausen, 59 Hun 164; s. c. 39 N. Y. St. Rep. 932; 15 619, mem.; 37 N. Y. St. Rep. 710; N. Y. Supp. 765. That the liability 13 N. Y. Supp. 499. of the owner of a T)ull which in- 'a Idaho. — Rev. Stat. (1887), § 1205. fllcted a personal injury after it Kentucky. — Gen. Stat. (1894), § 68. escaped while being driven through Louisiana. — Rev. Civ. Code, art. a street, did not depend upon vicious 2321. Massachusetts. — Rev. Stat, propensities of the animal previous- (1836), c. 58, § 13. Michigan. — How. ly existing and notice thereof by Stat., § 2119. New Hampshire^ — defendants, — Balrd v. Vaughn Gen. Stat, c. 105, § 8. Ohio.— S. & (Tenn.), 15 S. W. Rep. 734. C. Stat, p. 71. Wisconsin. — Rev. a This section is cited in § 843. Stat., § 1620. 809 1 Thomp. Neg.] care and restraint of animals. gentry. Hence arose the exceptional rule that a gentleman was not liable for the mischief done by his dog unless he hnew of its mis- chievous propensities, ignoring the obvious conception that it is the duty of every man who keeps an animal of a kind that is liable to be vicious, to charge himself with knowledge of its propensities, in favor of the rights of others. The contrast between this rule and the rule in regard of liability for trespassing cattle damarje feasant further il- lustrates the manner in which the English case-made law was created, and points to the impropriety of the American courts blindly following and applying that law. The lands of England were owned by the nobility and gentry, — that is to say, by the N'orman robbers who wrested them from the hands of the Saxon proprietors. The cattle Mdiich did the trespassing were generally those of their tenants; con- sequently a trespass by cattle upon the lands of another, was made, by the judges who did their thinking on the side of the nobility and gentry, equivalent to a trespass by the owner of the cattle, without any reference to his knowledge of their tendency to commit a trespass, or to his care or negligence in failing to restrain them. In following and applying these rules of law, American courts and judges are merely following and applying the rules of law which had their origin in feudal times and which had an odious beginning under conditions against which our own ancestors successfully struggled. To relieve against this injustice of the common law, statutes have been enacted in England^ and in this country,"^ dispensing with the proof of scienter in case of damage done by vicious dogs, in various situations. "26 & 27 Vict., ch. 100; 28 & 29 a dog does damage, Ms owner or Vict., ch. 60; Wright v. Pearson, keeper shall forfeit to the person 38 L. J. (Q. B.) 312. injured, double the amount of dam- 's. Such as the statute of Michigan age done; since all that is required (How. Mich. Stat., § 2119), which, by the judicial construction of this among other things, provides that statute, in order to make out a case "it shall not be necessary, in order under it, is for the plaintiff to prove to sustain an action, to prove that an injury to his person by a dog the owner or keeper knew that such owned and kept by the defendant: dog was accustomed to do such dam- Hussey v. King, 83 Me. 568; s. c. age or mischief." As it is not neces- 22 Atl. Rep. 476. For a case under sary to prove it, it was an obvious a Massachusetts statute of the same conclusion that it is not necessary tenor (Pub. Stats. Mass., ch. 102, to aver it: Newton v. Gordon, 72 § 93), though not involving this Mich. 642; s. c. 40 N. W. Rep. 921. question, — see Galvin v. Parker, 154 Under the same statute douMe dam- Mass. 346; s. c. 28 N. E. Rep. 244. ages are recoverable for the killing The statute of Wisconsin (Rev. Stat, of sfteep by a dog, even if the owner Wis., § 1620), dispensing in terms is ignorant of his tendency to kill with scienter, is construed as mak- sheep: Trompen v. Verhage, 54 ing the owner or keeper of the dog Mich. 304. Such is obviously the liable as well for injuries to the underlying conception of the stat- clothes of the person bitten as for ute of Maine (Rev. Stat. Me., ch. the biting. The statute being gen- 30, § 1), which provides that when eral, is construed as not being lim- 810 DOGS. [2d Ed. 885. Purtlier Glimpses at Statutes against Dogs.^ — A statute of ited to injuries to the body only: Schaller v. Connors, 57 Wis. 321. The Missouri statute (Rev. Stat. Mo., 1889, § 4512), is held not to create a new or independent cause of action, but merely to dispense with the common-law rule as to proof of scienter, so that in an ac- tion under it an allegation of scien- ter becomes surplusage: Jacobs- meyer v. Poggemoeller, 47 Mo. App. 560. Under the Maine statute giv- ing double damages for injury done by a dog, the right of action does not abate on death of plaintiff: Prescott V. Knowles, 62 Me. 277. Keeper of a dog held liable as owner under the statute: Smith v. Montgomery, 52 Me. 187. In such an action scienter is dispensed with: Orne v. Roberts, 51 N. H. 110. Action under statute dispensing with scienter in case of dog worrying sheep, will not lie against two separate owners of dogs for injury done by them jointly: Hall v. Cootmire, 2 Vt. 9. In an action giving person injured by dog double damages, it was held that the statute is remedial and not penal (Mitchell v. Clapp, 12 Cush. (Mass.) 278; see also Reed v. North- field, 13 Pick. (Mass.) 94); and does not apply to injuries committed out- side of the State: Le Forrest v. Tolman, 117 Mass. 109. Where dec- laration alleges that defendants were owners and keepers, it is held that plaintiff must prove that they were both owners and keepers. And each owner was liable only for the injury committed by his own dog where the dogs of several owners unite in committing mischief: Bud- dington v. Shearer, 20 Pick. (Mass.) 477. Where parent by reason of in- jury by dog to his minor child, loses child's services and is put to expense for his care, he may bring suit: McCarthy v. Guild, 12 Mete. (Mass.) 291. Injury by dog fright- ening horse is within the statute; but it seems no action would lie, under the statute, for an acci- dent caused by the mere presence or passing of a dog: Sherman v. Fa- vour, 1 Allen (Mass.) 191. Man- damus against selectmen of a town, to cause them to draw an order against a fund created by taxes on dogs to pay damages to plaintiff suf- fered by him by reason of injuries from dogs: Osborn v. Lenox, 2 Allen (Mass.) 207. A corporation may be liable for injuries commit- ted by dog kept in their stables by their consent: Barrett v. Maiden &c. R. Co., 3 Allen (Mass.) 101. Under the statute, scienter is dis- pensed with; how to compute the damages: Persey v. Wirth, 3 Allen (Mass.) 191. Owner of a dog which has inflicted injuries to a child can not exempt himself from liability because child did not act with the discretion of a person of mature years, if there is no want of ordi- nary care on the part of the person having charge of the child: Munn V. Reed, 4 Allen (Mass.) 431. Rem- edy given by statute to "any person injured" by a dog, against its owner or keeper, includes injuries to prop- erty: Brewer v. Crosby, 11 Gray (Mass.) 29. Where the evidence was conflicting as to whether the dog bit the plaintiff or whether she struck her wrist against the buckles on his muzzle and thereby wounded herself, it was held she could not recover unless the dog bit her: Searles v. Ladd, 123 Mass. 580. Scienter dispensed with under stat- ute: Woolf V. Chalker, 31 Conn. 121. Injury to sheep by dogs, and notice to selectmen; statute con- strued: Jones V. Sherwood, 37 Conn. 466. Scienter dispensed with in action under statute for killing or wounding sheep by dogs: Fish v. Skut, 21 Barb. (N. Y,) 333. Statute dispenses with proof of scienter in no other actions for injuries to sheep by dogs excepting where they are either killed or wounded: Osin- cup V. Nichols, 49 Barb. (N. Y.) 145; Auchmuty v. Ham, 1 Denio (N. Y.) 495. Who is keeper? Where exemplary damages will be allowed. Each owner is responsible only for the injury done by his own dog, where the dogs of several owners unite in the mischief: Auchmuty V. Ham, 1 Denio (N. Y.) 495. Tres- pass will lie for injuries by dog to sheep, under statute making owner of dogs not keeping them chained or housed at night liable for value of sheep killed by them: Paff v. Slack, 7 Pa. St. 254: Trespass may be brought under the statute, but, a This section is cited in § 843. 811 1 Thomp. Neg.] care and restraint of animals. England,*'' makes the owner of a dog liable for injuring cattle or sheep, without regard to the previous mischievous propensity of the dog, or the owner's knowledge thereof, or any neglect on the part of the owner with reference to the dog. Under this statute, it has been held that the owner is liable for an injury done by the dog to sheep trespassing on his land, notwithstanding he has several times warned the owner of the sheep to keep them ofP.^" Under a statute of Ehode Island,^"^ the owner of a dog who allows it to get upon the highway, becomes an insurer of the conduct of the dog, in favor of the travelling public; so that one bitten by a dog on the highway may maintain an action for damages against the owner, although he had no knowledge of the tendency of the dog to bite:^^ a good statute and a just and sensible construction of it. A statute of N'ew Hampshire^^ makes the owners of dogs liable for the mischief done by them, without regard to whether trespass under statute, or case at common law Is brought, scienter must be proved; and in an action under the statute, owner of dog is liable not only for sheep killed by dog, but for such injuries as may befall the flock from fright: Campbell v. Brown, 19 Pa. St. 359; 1 Grant (Pa.) 82. Under a later statute, scienter need not be proved; suit may be brought against all the owners of several dogs which at one and the same time kill and wound sheep: Kerr v. O'Connor, 63 Pa. St. 341. Suit under statute giv- ing double damages for injuries by dogs: held, statute highly penal, and must be strictly construed, and the negligence of defendant's servant will not authorize a recovery under it against his master: Smith v. Causey, 22 Ala. 568. Under statute, scienter need not be proved, but may be in aggravation of damages; com- puting double damages: Swift v. Applebone, 23 Mich. 252. Statute does not apply to injuries by mad dogs; dissenting opinion by Graves, C. J.: Elliott V. Herz, 29 Mich. 202. Under statute giving damages for dogs killing or injuring sheep : held, that the word "injure" Is broad enough to include injuries by means of chasing or worrying, although no external hurt was occasioned thereby, and proof of scienter not necessary: Job v. Harlan, 13 Ohio St. 485. Person bitten by dog, scienter need not be proven: Gries v. Zeck, 24 Ohio St. 329. Actions against several owners of dogs, sued 812 jointly where dogs united in injur- ing sheep, sustained: McAdams v. Sutton, 24 Ohio St. 333. Statute de- clared constitutional as an exercise of the police power; it furnishes two remedies; the owner of sheep must elect, — can not pursue both: Ten- ney v. Lenz, 16 Wis. 566. Quaere, whether statute dispenses with proof of scienter in other cases than injuries done by dogs in killing or worrying sheep. If act dispensed with proof of scienter, when act is repealed it puts an end to actions under it: Kertschacke v. Ludwig, 28 Wis. 430. Under statute 28 & 29 Vict, c. 60, § 1, which provides that the owner of every dog shall be lia- ble for injuries done to any cattle or sheep by his dog, and dispensing with proof of scienter, it is held that horses are included under the term "cattle": Wright v. Pearson, L. R. 4 Q. B. 582; 38 L. J. (Q. B.) 312. Construction of statute requir- ing owner to kill a mad dog: Wallace v. Douglass, 10 Ired. L. (N. C.) 79. The owner of sheep de- stroyed or wounded by dogs Is en- titled to remuneration from the dog- tax fund of the township, although he resides elsewhere: Washington v. Applegate, 22 N. J. L. 42. »b English Dogs Act, 1865, § 1. "Grange v. Silcock (Q. B.), 77 Law T. Rep. 340. "a R. I. Pub. Laws 1889, 749, § 1. "Kelly V. Alderson, 19 R. I. 544, Index SS. 133; s. c. 37 Atl. Rep. 12. ^^ N. H. Pub. Stat. 118, § 10. DOGS. [2d Ed. the question of care and negligence on the part of the owner. Un- der the operation of this statute, an owner of dogs whose barking and biting caused a colt to run away while being driven hitched to a car- riage, was held liable to pay the resulting damages, although the colt was unsafe, where the injury would not have occurred but for the mis- conduct of the dogs.^^ § 886. Liability for Keeping Dogs under the Civil Code of Louisi- ana. — Outside of the question whether the rule of the common law prevails, making the keeper of a vicious dog, who knows of his vicious propensities, liable for any injury done by it in the exercise of those propensities, and on the mere footing of negligence, — it is the clear duty of the owner of such an animal to keep it restrained so that it will not break loose and injure persons lawfully passing along the public highway. Where the plaintiff was attacked and injured at night on the highway by two watch-dogs kept by the defendant, who was in the habit of keeping them confined by day and of releasing them at night, it was said : "It was the defendant's clear duty, in loosing his dogs at night for his own advantage and protection, to see that they should not escape and injure innocent persons on the street, and to that end to exercise the highest care."^* This was said with refer- ence to the rule under the Civil Code of Louisiana, which provides that "the owner of an animal is answerable for the damage he has caused," and that "when the master has turned loose a dangerous or noxious animal * * * be must pay for all the harm done."^^ The court, referring to these passages of the code, continued : "The rule at common law is ancient and well settled, that one keeping a danger- ous or mischievous animal with knowledge of his propensities, must at his peril keep him up safe from doing hurt; for though he use his diligence to keep him up, if he escape and do harm, the owner is liable to answer in damages. * * * Our law certainly does not furnish a more lenient rule."^* § 887. Effect of These Statutes on the Defense of Contributory Negligence. — The tendency of these statutes is either to abolish or to "Chlckering v. Lord, 67 N. H. a dog under the Michigan statute: 555; s. c. 32 Atl. Rep. 773. Under a Monroe v. Rose, 38 Mich. 347. statute of Vermont, the owner of a " Montgomery v. Koester, 35 La. dog may be held liable for all the An. 1092. damages done to a flock of sheep by " Civ. Code La., art. 2321. a pack of dogs, of which his dog " Montgomery v. Koester, 35 La. was one: Remele v. Donahue, 54 An. 1092. This language was quoted Vt. 555. What declaration must al- and the doctrine reiterated in Mc- lege in an action for double dam- Guire v. Ringrose, 41 La. An. 1029; ages by one assaulted and bitten by s. c. 6 South. Rep. 895. 813 1 Thomp. Nsg.J CAKE and restkaint of animals. minimize the defense of contributory negligence. Under a statute of Massachusetts/' where the act of a dog was the sole and proximate cause of the shying of a horse, and such was not the result of any vicious habit of the horse, the fact that it contributed to the injury which the plaintiff received, did not prevent him from maintaining an action against the owner of the dog.^* Under another statute of Massachusetts,^" providing that every owner of a dog engaged in doing damage to sheep which the County Commissioners have ordered paid, shall be liable to the county for all damage so done, the owner is liable, not alone for the damage done by his own dog, but for the dam- age done by the whole pack; and it makes no difference that one of the dogs doing the damage belonged to the owner of the injured sheep. ^^ Under another Massachusetts statute, ^^ providing that the owner or keeper of a dog shall forfeit to any person injured by it, double the amount of damages sustained by him, it has been held that the act of leading a horse harnessed to a wagon, behind and attached to another wagon, is not such negligence as will prevent a recovery of damages for the loss of the horse by reason of its being bitten by a dog.^^ The statute just cited does not, however, abolish the defense of contributory negligence ; for another court has held that, in order to recover double damages under it, the plaintiff must show that he was in the exercise of due care at the time of the injury. In the particular case, it ap- peared that the dog of the defendant and that of the plaintiff were fighting, and that the plaintiff interfered to stop them, when he was- bitten by the dog of the defendant. The court, laying down the doc- trine just stated, held that whether the plaintiff was warranted in interfering was a question for the jury.^^ Under the Iowa statute,^* however, the question of the negligence of a party bitten by a dog is immaterial, unless his negligence amounted to an unlawful act;^° and it was held that the act of a traveller, in going into the yard of a feed and livery barn, which was open to patronage by the public, and at which his team was being kept for the night, for the purpose of seeing that his buggy, which had been left in the yard, had been put in the barn, and also to get some articles from the buggy, between eight and half -past eight o'clock in the evening, while persons were at work at " Mass. Gen. Stat., ch. 88, § 59. '^ Boulester v. Parsons, 161 Mass. '=Denison v. Lincoln, 131 Mass. 182; s. c. 36 N. E. Rep. 790. 236. ^ Raymond v. Hodgson, 161 Mass. "Mass. Pub. Stat., ch. 102, § 106. 184; s. c. 36 N. B. Rep. 791. 2" Worcester County v. Ashworth, '''Iowa Code, § 1485. 160 Mass. 186; s. c. 35 N. E. Rep. ^ Schultz v. Griffith, 103 Iowa 150; 773. s. c. 40 L. R. A. 117; 72 N. W. Rep. ^' Mass. Pub. Stat, ch. 102, § 93. 445. 814 DOGS. [2d Ed. the barn, did not make him a trespasser, and was not the doing of an unlawful act, within the meaning of the statute.^* § 888. Liability for Injuries Committed by Dogs while Trespass- ing. — In general, a man is not liable for the involuntary trespass of himself or his dog. If a man is assaulted, and, when in danger, runs through the close of another, not keeping the foot-path, no action lies, it being necessary for his preservation ; and it is laid down in 2 Bolle's Abridgment, 666, pi. 1, that if cattle, in passage on the highway, eat herbs or corn raptim et sparsim, against the will of the owner, it will excuse the trespass. In one case,^' the defendant's dog chased the plaintiff's sheep ; the defendant called him off, and it was held that no action lay. The act of a dog jumping into a field without the consent of its master is not such a trespass as will support an action.^* But where a man with dogs and guns entered into plaintiff's close and did not go along the path, and one of the defendant's dogs, escaping from his control, entered plaintiff's paddock, adjoining thereto, and pulled down a deer, it was held that defendant was liable.^* An action lies against the owner of a dog, who, knowing the animal to have a pro- pensity for chasing and destroying game, permits it to be at large, and the dog, in consequence, "breaks and enters" the plaintiff's woods, and chases and destroys young pheasants which are being reared under domestic hens.'" But, undoubtedly, one whose dog, while trespassing upon the close of another, kills a domestic animal, or commits other 'injury, is liable to pay damages therefor, though he had no previous knowledge of the vicious propensity of the dog.'^ In this respect the rule as to the liability of animals trespassing upon the property of others seems to apply to dogs as much as to cattle. For example, where the defendant unlawfully took his dog within the pasture of the plaintiff, and while there the dog bit a colt which was lawfully there, it was held that the defendant must pay damages irrespective of the question of scienter and that no averment of the previous knowl- edge of the vicious nature of the dog was necessary. ^^ This seems to be merely a branch of the general rule that the owner of a domestic animal, allowed to be at large in a place where it should not be, is liable for any injury caused by it while there, and knowledge of the owner that the animal was vicious, or likely to do mischief, need not be proved.^* There is not much difficulty in understanding the appli- ^Schultzv. Griffith, 103 Iowa 150; ™Read v. Edwards, 17 C. B. (N. s. c. 40 L. R. A. 117; 72 N. W. Rep. S.) 245; 34 L. J. (C. P.) 31. 445. '"Churnot v. Larson, 43 Wis. 536. " Millen v. Fandrye, 1 Poph. 161. See also Fairchild v. Benton, 30 == Brown v. Giles, 1 Car. & P. 118. Barb. (N. Y.) 147. =» Beckwith v. Sliordike, 4 Burr. '= Green v. Doyle, 21 111. App. 205. 2092. ''Decker v. Gammon, 44 Me. 322; 815 1 Thomp. Neg.] caee and restraint of animals. cation of this rule to trespassing dogs, when it is considered that a vicious dog running at large is a nuisance because dangerous to man- kind.s* § 889. Liability for Injuries to Trespassers Committed by Vicious Dogs. — The liability of the keeper of a vicious dog, who knows the vicious habits of the animal, extends even to the protection of persons trespassing upon his premises, at least in the day tinie.^° This ques- tion involves the principle which has often been applied in relation to the use of spring guns, man traps, and such devices for keeping off trespassers. That principle is that a person is not permitted, for the protection of his property, in his absence, as against a mere trespasser, to use means endangering the life of a human being, whatever he may do where the entry upon his premises is to commit a felony or breach of the peace; and that where such means are used, the nature and value of the property sought to be protected must be such as to justify such an extraordinary measure of protection. Full notice of the mis- chief to be encountered must he given to prevent trespasses, and the principles of humanity must not be violated ; otherwise the land-owner will be subjected to damages for any injury which ensues;^" but where he gives such notice, he will clearly not be liable. ^^ § 890, Rule of Liability where the Person Injured Comes upon the Premises of the Owner or Keeper of the Dog upon a Lawful Errand. — The doctrine of the preceding paragraph, and of a succeeding chapter, carries with it the implication that where the person injured comes Goodman v. Gay, 15 Pa. St. 188; own. Although the stable was not post, § 904. locked, the owner had placed a no- "Woodbrldge v. Marks, 5 App. tice on the door warning people of Dlv. (N. Y.) 604; s. c. 40 N. Y. the dog. And this was so held, not- Supp. 728; aff'g 14 Misc. (N. Y.) withstanding the fact that the 388; s. c. 71 N. Y. St. Rep. 417; 36 driver could not read the notice: N. Y. Supp. 81. Prudhomme v. Vincent, Rap. Jud. "Loomis V. Terry, 17 Wend. (N. Quebec, 11 C. S. 27 (reported in the Y.) 496; s. c. 1 Thomp. Neg., 1st ed., French language). A court in New 192; Melsheimer v. Sullivan, 1 Colo. York has held that one who keeps App. 22; S. c. 27 Pac. Rep. 17; 44 a vicious dog to defend his prem- Alb. L. J. 151. ises in the night-time Is not liable ™ Loomis V. Terry, 17 Wend. (N. for an injury inflicted by it upon Y.) 496; s. c. 1 Thomp. Neg., 1st ed., one at night in a part of the prem- 192. ises to which he had no expressed or ^ This is illustrated by a case implied invitation, where he kept it where the owner of a savage dog chained so that it could not inflict was held not liable for injuries in- injury on any one at any place on flicted by the dog upon the driver the premises to which there was of an express wagon who, after de- any express or implied invitation livering goods to the owner, went to come: Woodbridge v. Marks, 17 without permission of the owner to App. Div. 139; s. c. 45 N. Y. Supp. the stable in which the dog was con- 156. fined, for a proper purpose of his 816 DOGS. [2d Ed. upon the premises of the owner or keeper of the dog upon a lawful errand, or upon lawful business, either of his own or of such owner, and is there beset and injured by a savage dog, known to be suchby the owner, the owner will be compelled to pay damages for the in- jury.^* Thus, it has been held that the owner of a dog, kept tied on account of its vicious propensities, is liable for an injury to one enter- ing a court in which the dog is tied, upon business in a house abutting upon the court, caused by the dog's breaking the cord and attacking him, the decision being placed upon the footing of the negligence of the owner of the dog, in failing to tie him so that he could not escape.'' § 891. Status of Dogs as Property.^ — It is now generally agreed that a person may have a right of property in a dog, and that this right enjoys the protection of the law in common with other rights of property.*" A dog may be the subject of larceny under a statute mak- ing it a crime for any one to steal any "chattel" of another; though there is a difference of opinion on this question, as will be seen by examining the cases in the subjoined note.*^ The owner of a dog may accordingly maintain trover for the recovery of its value in the case of its wrongful conversion.*^ So, the owner of a dog has such a property in him that he may maintain an action for killing or injur- ing him,*' — even where he is killed in good faith by a hunter, believ- ing him to be a wolf.** Where a dog is unlawfully killed, some value in the dog and some loss to the owner are conclusively presumed ; and therefore proof of the market value of the dog is not necessary to sus- »» Jacoby v. Ockerhausen, 37 N. Y. In Findlay v. Bear, 8 Serg. & R. St. Rep. 710; s. c. 59 Hun (N. Y.) (Pa.) 571, it was decided that to say 619; Sylvester v. Maag, 155 Pa. St. that "he stole a dog" was not ac- 225. tionable: Queen v. Robinson, 28 L. ™ Miller v. Bourbonniere, Rap Jud. J. M. C. (N. S.) 58 (not a crime to Quebec, 9 C. S. 413 (reported in the obtain dog by false pretenses). French language). Dogs as subject of larceny, — ^see a This section is cited in §§ 892, Graham v. Smith, 100 Ga. 434; s. c. 893. 40 L. R. A. 503-514. There is a long " Woolsey v. Haas, 65 Mo. App. and learned note on the subject of 198. property rights in dogs, and the re- *^ Hamby v. Sampson, 105 Iowa covery of damages for their wrong- 112; s. c. 40 L. R. A. 508; 74 N. W. ful conversion, to the case of Gra- Rep. 918; overruling in effect War- ham v. Smith; 100 Ga. 434, as re- ren v. State, 1 G. Greene (Iowa) ported in 40 L. R. A. 503. 106 (a raccoon was held not a sub- "Graham v. Smith, 100 Ga. 434; ject of larceny). See also Mullaly s. c. 40 L. R. A. 503; 62 Am. St. V. People, 86 N. Y. 365; Common- Rep. 323; 28 S. E. Rep. 225. As to wealth V. Hazelwood, 84 Ky. 681. replevin, etc., for dogs, — see note in That a dog is not a subject of lar- 40 L. R. A. 503, 507. ceny, — see State v. Lymus, 26 Ohio "Citizens' Rapid Transit Co. v. St. 400; s. c. 20 Am. Rep. 772; State Dew, 100 Tenn. 317; s. c. 40 L. R. v. Doe, 79 Ind. 9; s. c. 41 Am. Rep. A. 518; 45 S. W. Rep. 790. 599; Sentell v. New Orleans &c. R. " Ranson v. Kitner, 31 111. App. Co., 166 U. S. 698; s. c. 41 L. ed. 1169. 241. VOL. 1 THOMP. NEG. — 52 ol7 1 Tliomp. Neg.J care axd restkaixt of animals. tain a judgment for some damages^ where there is proof that the ani- mal was useful and rendered services to the plaintiff, from which the jury can infer some value.*^ § 892. nailroad Companies liable for the Negligent Killing of Dogs. — Dogs being property,** a railroad company is liable in dam- ages to the owner of a dog for killing or injuring it.*^ Dogs are "property" within the provision of the Constitution of Arkansas, mak- ing railroad companies responsible for damages to property caused by the running of their trains.*^ It has been held, applying the doctrine of Davies v. Mann,^^ that a railroad company is liable to pay damages for the killing of a dog, if, by the exercise of ordinary care, the killing could have been avoided, notwithstanding the dog and its owner were trespassers on the track of the company at the time.^" The most obvious suggestion which will enter the human mind in such a con- nection would be that a railroad company ought not to be bound to check its train, or to take measures to expel from its track a trespass- ing dog, knowing the quick movements of such animals, and how easy it is for them to get out of the way. The writer woiild have remained of this impression, had he not seen a dog killed by a horse-car on two different occasions. In each case, however, the dog was killed where two cars were passing each other, on different tracks, in the act of escaping from in front of one and running in front of the other. "^ § 893. What will Justify Killing the Dogs of Another. — In order to justify one in killing the dog of another, it must ordinarily be shown that, at the time the animal was killed, he was either in the act "Heiligmann v. Rose, 81 Tex. &c. R. Co., 166 U. S. 698; s. c. 41 222; s. c. 16 S. W. Rep. 931. L. ed. 1161 (stating tiat such was " Ante, § 891. the rule at common law) ; St. Louis "Citizens' Rapid Transit Co. v. &c. R. Co. v. Hanks, 78 Tex. 300; Dew, 100 Tenn. 317; s. c. 45 S. W. s. c. 11 L. R. A. 383; 14 S. W. Rep. Rep. 790; 40 L. R. A. 518. See also 691. St. Louis &c. R. Co. v. Stanfield, 63 *» St. Louis &c. R. Co. v. Stanfield, Ark. 643, and note to same in 37 L. 63 Ark. 643. To the same effect, R. A. 659; also Jones v. Bond, 40 under a statute of Mississippi, is Fed. Rep. 281; Sentell v. New Or- Jones v. Bond, 40 Fed. Rep. 281. leans &c. R. Co., 166 U. S. 698; s. c. '"Ante, §§ 226, 230, 235, 243. 41 L. ed. 1169. A dog is "property," ^ St. Louis &c. R. Co. v. Hanks, 78 within the meaning of a statute of Tex. 300. Mississippi making railroad com- " The right to recover for a rail- panies liable for any negligent in- way injury to a dog is not lost by jury to property, and giving an ac- killing him, under the honest but tion therefor to the owner of the mistaken belief that he was fatally property injured: Jones v. Illinois injured: Citizens' Rapid Transit &c. R. Co., 75 Miss. 970; s. c. 23 Co. v. Dew, 100 Tenn. 317; s. c. 45 South. Rep. 358; 1 Miss. Dec. (19) S. W. Rep. 790; 40 L. R. A. 518. 168; citing Sentell v. New Orleans 818 DOGS. [2d Ed. of destroying the defendant's property," or that it was absolutely necessary for the preservation of his property or per son. '^^ Not so, however, in the case of a ferocious dog, accustomed to bite mankind, or a rabid dog. A dog of that kind is a common nuisance,^* and may be killed by any one.''° And it has been held that the inhabitant of a dwelling-house may lawfully kill the dog of another, the owner know- ing the dog's habits, where such dog is in the habit of haunting his house, and by barking and howling, by day and by night, disturbing the peace and quiet of his family, if the dog can not otherwise be pre- vented from annoying him.°' So, one may kill a dog which is chas- ing animals on his land, in order to preserve the lives of the animals thus chased, although they may not belong to the owner of the land.'*^ Putting up a notice that dogs trespassing on his lands will be shot, will not justify one in shooting another's dog coming thereon. °^ Where the defendants justified shooting a dog, by pleading that he had attacked them, and was accustomed to attack and bite mankind, the court allowed witnesses to be called to prove the general quietness of the dog.^° There seems to be no doubt that a statute or municipal ordinance, providing for the killing of any unlicensed dogs,®" or dogs running at large, contrary to the provisions of such statute or ordi- nance, is within the police power of the State and valid.®^ A statute of a State, providing that no dogs shall be entitled to tV.? protection of the law, unless placed upon the assessment rolls, and that, in a civil action for killing a dog, the owner can not recover more than the value ■'^If one dog Be killed by another, 388; s. c. 71 N. Y. St. Rep. 417; 36 the owner of the former, in order N. Y. Supp. 81. to recover damages, must show that ^ Barrington v. Turner, 3 Lev. 28 ; the latter was the aggressor, with- Putnam v. Payne, 13 Johns. (N. Y.) out regard to his general habits and 312; Perry v. Phipps, 10 Ired. L. character: Wiley v. Slater, 22 259; Brown v. Carpenter, 26 Vt. 638; Barb. (N. Y.) 506. See Wheeler v. Dunlap v. Snyder, 17 Barb. (N. Y.) Brant, 23 Barb. (N. Y.) 324. 561; Woolf v. Chalker, 31 Conn. 121; "^ Janson v. Brown, 1 Camp. 41; Dodson v. Mock, 4 Dev. & B. (N. C.) Wells V. Head, 4 Car. & P. 568; Bar- 146; Parrott v. Hartsfield, 4 Dev. & rington v. Turner, 3 Lev. 28; Proth- B. (N. C.) 110; Maxwell v. Palmer- eroe v. Mathews, 5 Car. & P. 581; ton, 21 Wend. (N. Y.) 407; Bowers Vera v. Lord Cawdor, 11 East 567; v. Fitz Randolph, Add. 215. Wadhurst v. Damme, Cro. Jac. 45; == Brill v. Flagler, 23 Wend. (N. Brown v. Hoburger, 52 Barb. (N. Y.) 354. Y.) 15; Wright v. Ramscot, 1 Saund. " Leonard v. Wilkins, 9 Johns. (N. 84; Perry v. Phipps, 10 Ired. (N. Y.) 232. C.) 259; Morris v. Nugent, 7 Car. & ^^goj-ner v. Champneys (MS.), P. 572; Hinckley v. Emerson, 4 Cow. cited in 2 Marsh. 584. (N. Y.) 351; King V. Kline, 6 Pa. St. »» Clark v. Webster, 1 Car. & P. 318. See also Canefox v. Crenshaw, 104. 24 Mo. 199. See, as to value of dog, " Blair v. Forehand, 100 Mass. Brent v. Kimball, 60 111. 211; Spray 136. V. Ammerman, 66 111. 309. " Hagerstown v. Witmer, 86 Md. "Woodbridge v. Marks, 5 App. 293; s. c. 39 L. R. A. 649; 30 Chi- Div. (N. Y.) 604; s. c. 40 N. Y. cago Leg. News 1; 37 Atl. Rep. 965. Supp. 728; aff'g s. c. 4 Misc. (N. Y.) 819 1 Thomp. Neg.] care and restraint of animals. placed by him upon the dog in the last assessment preceding the kill- ing, is within the police power of the State.*^ But dogs are prop- erty/ '^ and the right of property in them is entitled to the protection of the law, in common with other property. It follows that one who willfully and maliciously kills a dog which is not vicious or dangerous in disposition and habits, and is not engaged in committing damage, — is liable to the owner for his fair value, although he has been in the habit of going from his master's premises and barking at passers on the highway."* § 894. Who Deemed the "Keeper" or "Owner" of a Vicious Dog. — For the purpose of maintaining an action for injuries received from , the bite of a vicious dog, it is not material whether the defendant was the owner or not;"" harboring a dog about one's premises, or allowing him to be or to resort there, is a sufficient keeping of the dog to sup- port the action."" But the party who shall be held responsible for an injury committed by a dog must be one who harbors him and not mere- ly one who permits him to remain temporarily upon his premises, as in the case of one who keeps boarders for pay, and permits such boarders to have or keep on his premises a dog ; but he is liable who, having the possession and control of a house or premises, suffers and permits a dog to be kept on the premises in the way such domestic animals are usually kept, — as a member of the family, so to speak."' If a man sells his dog, and the dog is taken away by the purchaser, but returns, and is allowed to remain on the premises of the seller, though With- out the consent of the purchaser, the seller becomes the keeper of the dog, and is liable for injuries inflicted by it."* Whether one who har- bors a vicious dog, which he knew to be vicious, was liable for injuries inflicted by the dog, although he was not the owner, upon evidence that the owner was a boy fourteen years old, who was a member of the family of the man sought to be made liable, his mother being its keeper, — was a question of fact for the jury. The court reasoned that one who harbors a dog on his premises is not, as matter of law, liable for its vicious acts, but that the age, employment, and home of the owner, and the circumstances under which the injury was inflicted =■= Sentell v. New Orleans &c. R. '= McCone v. Wood, 5 Car. & P. 1 ; Co., 166 U. S. 698. ■Wilkinson v. Parrott, 32 Cal. 102; ''Ante, § 891. Barrett v. Maiden &c. R. Co., 3 Al- '* Jacquay v. Hartzell, 1 Ind. App. len (Mass.) 101. 500; s. c. 27 N. B. Rep. 1105. =' Cummings v. Riley, 52 N. H. ""Keenan v. Gutta Percha Man. 368. Co., 46 Hun (N. Y.) 544; s. c. 12 =» Mitchell v. Chase, 87 Me. 172; N. Y. St. Rep. 617; Hornbein v. s. c. 32 Atl. Rep. 867. Blanchard, 4 Colo. App. 92; 35 Pae. Rep. 187. 820 DOGS. [2d Ed. must be considered, the question being for the jury.®' And it has been held, where a passenger was bitten at a railway station, while waiting for a train, by a stray dog which had, about one hour and a half before that time, attacked another passenger and torn her dress, and had, a few minutes before the injury complained of, been kicked out of the signal-box by one of the employes of the company, — that this was not such a keeping of the dog as would justify the leaving of the question of negligence to the jury.'" One who harbors a dog on his premises as owners usually harbor their dogs, is deemed to be the "owner" under a statute respecting the liability of owners for inju- ries by their dogs.'^ But one who suffers a dog to remain temporarily on his premises, is not, as matter of law, its "keeper," so as to be liable under a statute of Massachusetts for injuries inflicted by it.^^ On the ground that a landlord is not liable for the negligent and tortious acts of his tenant, occupying the demised premises, it has been held that one is not liable as keeper of a dog, although the dog was so kept on the demised premises, for injuries caused by its biting the coachman of his mother, where his mother occupied the premises as his tenant.'* An attempt to make a person liable for injuries by dogs on the ground of harboring them failed where the plaintiff's father wrongfully took a dog belonging to the defendant, and kept him at his home, but in such a way that it could not be said that the dog really lived there, and the plaintiff was bitten by the dog.'* "^ Snyder v. Patterson, 161 Pa. St. claims to own a dog, or who main- 98; s. c. 28 Atl. Rep. 1006; 34 W. N. tains or controls and uses the dog C. 288. of another: Jacobsmeyer v. Pogge- '" Smith V. Great Eastern R. Co., moeller, 47 Mo. App. 560. The mere 36 L. J. (C. P.) 22; s. c. L. R. 2 C. P. fact that a dog is kept by its owner 4; 15 L. T. (N. S.) 246. on the premises of another with the " Schultz V. Griffith, 103 Iowa 150; knowledge, acquiescence, or permis- s. c. 40 L. R. A. 117; 72 N. W. Rep. sion of the owner of the premises, 445. who exercises some control over it " O'Donnel v. Pollock, 170 Mass. and treats it as though it was at 441; s. c. 49 N. E. Rep. 745. home, does not, as a matter of law, "Lynt v. Moore, 5 App. Div. 487; make the owner of the premises the s. c. 38 N. Y. Supp. 1095. keeper of the dog, within Mass. Pub. "Burnham v. Strother, 66 Mich. Stat., chap. 102, § 93: Boylan v. Ev- 619; s. c. 10 West. Rep. 189; 33 N. erett, 172 Mass. 453; s. c. 52 N. E. W. Rep. 410. Under the Missouri Rep. 541; 5 Am. Neg. Rep. 169. The statute making the "owner or keep- owner of premises on which is kept er" of dogs, killing or maiming do- a dog not belonging to him, which mestic animals, liable, it is held bites another, is not liable therefor that if a person harbors a dog or under 1 N. Y. Rev. Stat., p. 706, permits his servant to keep such an § 20, providing that one who has animal on his premises, this will harbored a dog for twenty days is constitute such person a "keeper" liable for damages done by it, if he of the animal within the meaning purchased the premises only ten of the statute; and the court ap- days before biting occurred: Jen- proved an instruction, given against nings v. D. G. Burton Co., 73 Hun the objection of the defendant, that, (N. Y.) 545; s. c. 57 N. Y. St. Rep. by the words "owner or keeper" was 268; 26 N. Y. Supp. 151. meant one who actually owns or 821 1 Tbomp. Neg.] care and restraint of animals. § 895. Actual Custody Not Necessary to Establish Liability. — But it does not follow from this that an actual custody, either by the ovraer or by his own servant, of the animal doing the mischief, is necessary to establish his liability for the mischief done. Thus, in a case where defendant's father testified that he owned the dog which had bitten plaintiff, but had put him in the hands of his son to avoid his credit- ors, the court said:^° "If, as between the defendant and his father, the dog was the defendant's, the father having surrendered his right to defendant, and, at the time the plaintiff was bitten, the defendant had a right to the control of the dog, and he was only temporarily and casually out of his actual custody, as any one's dog might be at a neighbor's house, and the defendant's father, as between them, had no right to any custody and control of the dog, — the defendant was liable in this action; and that if the defendant's father put the dog into defendant's hands for the purpose of keeping him from being attached by his creditors, it would not excuse defendant." § 896. liability of Master for Damages Caused by Vicious Dogs Kept by his Servant. — But while it is true that a person not the owner of a dog may be liable as its keeper, yet the mere fact that a dog is kept by its owner on the premises of another with the knowledge, acquiescence, or permission of such owner, does not of itself make such owner the keeper of the dog in such a sense as to charge him with liability for any mischief it may do.'® On this prin- ciple, it was held that a farmer was not liable for damages done by a dog which one of his farm laborers brought upon the farm and kept there with the acquiescence of the farmer, who had nothing whatever to do with it.'^ This holding may be regarded as more or less doubt- ful, and therefore the language of the court vindicating it will be quoted : "If the contrary were true, then a landlord might be liable as the keeper of a dog which belonged to and was at all times in the pos- session and control of a tenant or boarder, or even of a guest of a tenant or boarder. The law does not require the owner or an occu- pant of premises tO' eject every dog that may be or may come upon them, at the risk, unless he does so, of being adjudged its keeper. No doubt a dog may be upon the premises of another under such cir- cumstances that a jury would be warranted in finding that the owner of such premises was the keeper of it.'"* So, it has been held that a "Marsh v. Jones, 21 Vt. 378. "Whittemore v. Thomas, 155 '" Collingill v. Haverhill, 128 Mass. Mass. 347, 349, opinion by Morton, 218; Whittemore v. Thomas, 153 J.; citing, to the last observation Mass. 347; s. c. 26 N. B. Rep. 875. Barrett v. Maiden &c. Railroad, 3 "Whittemore v. Thomas, 153 Allen (Mass.) 101. Mass. 347. 822 DOGS. [2d Ed. farmer is not to be deemed the harborer of a dog within the rule which charges him with liability for the dog's vicious habits, because he knows that his hired man has a dog in his family which occupies a separate residence from that of the farmer." The rule which exon- erates the master in such a case is clearer, where the dog is in the pos- session of the servant, and the master knows nothing of its vicious pro- pensities.^" It has been held under a statute,*^ by a provision of which a person in possession of a dog, or one who shall sufEer a dog to remain about his house, is liable as owner for his mischievous acts, that an employer was not liable for mischief done by the dog of his hired laborer, where the dog was in the habit of following his master daily to his work, on the farm of his employer, and of returning each night and staying with his master at his own house, which was dis- tinct from that of the employer.^ ^ But in a case against a horse- railroad company,'^ where the evidence at the trial was that the dog which inflicted the injury on the plaintiff was kept on the premises of the defendants for several weeks, by a person in their employment, who had charge and superintendence of their stables, and that this was done with the knowledge and implied assent of their general agent or superintendent, it was held that this was clearly sufficient to war- rant the jury in finding that the dog was kept by the defendants. § 897. Liability of Corporations Keeping Dogs. — Upon this ques- tion, it has been observed: "It is impossible for us to determine, as a matter of law, that a corporation established for the purpose of building and running a railroad by horse-power would be going ultra vires in either owning or keeping a dog. On the contrary, it would seem to come quite within the scope of the power and authority granted to it, to keep dogs to protect its stables and other property from incen- diaries and thieves. And it is equally chargeable with notice of the vicious propensity of a dog which is kept by it as is an individual."^* Whether this be so or not, it has been held that overseers of the poor are not liable out of the funds in their hands for damages done by a dog brought to their almshouse by a little son of their steward, and left there by the latter on moving away, although the poor directors failed to drive the dog away, and although their steward, without "Auchmuty v. Ham, 1 Denio (N. ^^1 Rev. Stat. N. Y. 706, § 20. Y.) 495. ==Auchmuty v. Ham, 1 Denio (N. "Simpson v. Griggs, 58 Hun (N. Y.) 495. Y.) 393: s. c. 34 N. Y. St. Rep. 899; ''Barrett v. Maiden &c. R. Co., 3 12 N. Y. Supp. 162. In this case Allen (Mass.) 101. the master was exonerated, although " Barrett v. Maiden &c. R. Co., the dog used to churn butter lor 3 Allen (Mass.) 101. him. 823 1 Thomp. Neg.J cark and restraint of animals. their knowledge or acquiescence, treated it as the propert}' of the county. The court ruled that this did not make it the property of the county, and that whether or not the funds in the hands of the poor directors dedicated to charity could be mulcted in damages for the keeping of a vicious dog, was a question which did not arise on the record.*" So, in Massachusetts, the fact that a dog, owned by and licensed in the name of the superintendent of a poor farm of a city, is kept at the farm with the knowledge of one of the overseers of the poor of the city, and, without objection by him, is fed with food fur- nished by the city for use at the farm, and, during a portion of the time, is allowed the run of the farm, does not, as matter of law, show that the city is a keeper of the dog, within the meaning of a statute** of that State giving double damages for injuries committed by dogs.*^ § 898. Liability How Affected by Kelation of Husband and Wife. — A wife is not necessarily the keeper of dogs, so as to render her liable to persons bitten by them, where they are owned and kept on her premises by her husband, although she carries on a separate business on such premises;** and this has been held to be so, although the statute law secures to married women their separate estates, and re- lieves the husband from liability for the wife's torts, "in the commis- sion of which he does not participate ;" since the dog can not be kept without his consent and participation, for which reason injuries com- mitted by it must be charged to his responsibility as head of the fam- ily.*' On the other hand, it seems that a married woman is liable for an injury caused by the bite of a dog belonging to her husband, but which she harbors on her own premises, knowing its vicious propensi- ties.'" Thus, where a husband and wife were living together on prem- ises owned by the wife, both contributing to the household expenses, and the husband bought a dog and brought it upon the premises, it was held that the harboring of the dog was the act of the wife, and that an action might be maintained against her by one who had been bitten by it, joining her husband therein for conformity ; though the husband alone would not be liable.'^ Where, on the other hand, it ^ Sproat V. Greene County Poor ^ McLaughlin v. Kemp, 152 Mass. Directors, 145 Pa. St. 598; s. c. 1 Pa. 7; s. c. 25 N. E. Rep. 18. Adv. R. 243; 29 W. N. C. (Pa.) 461: »" Strouse v. Leipf, 101 Ala. 443; 22 Pitts. L. J. (N. S.) 405; 23 Atl. s. c. 23 L. R. A. 622; 14 South. Rep. Rep. 380. 667; Bundschuh v. Mayer, 81 Hun »«Gen. Stat. Mass., ch. 88, § 59; (N. Y.) Ill; 62 N. Y. St. Rep. 557; Pub. Stat. Mass., ch. 102, § 93. 30 N. Y. Supp. 622. 8' Gollinghill v. Haverhill, 128 "Quilty v. Battle, 135 N. Y. 201; Mass. 218. See also Barrett v. Mai- s. c. 17 L. R. A. 521; 48 N. Y. St. den &c. R. Co., 3 Allen (Mass.) 101, Rep. 413; 35 Cent. L. J. 483; 32 N. as stated in the last clause of the E. Rep. 47; 61 Hun 164. next preceding section. "Quilty v. Battie, 135 N. Y. 201; 824 DOGS. [2d Ed. appeared that the dog was obtained by the defendant to protect the premises of B., which were owned in part by the defendant's wife, on which the defendant also resided with his family, and that, after the death of B., the dog remained with the defendant, and was kept by him at the time of the injury to the plaintiff, — a finding was sustained that the defendant was the owner and harborer of the dog.°^ § 899. Liability of Master for Damages Caused by the Negligence of his Servants in Caring for or Using the Master's Animals. — The liability of the master for the negligent care or use by his servant of his animals rests upon the general rule already considered,'^ that a master is liable for all acts done by the servant in the execution of his master's business, within the scope of his employment, and for all acts of the servant done by the express orders or direction of the master. Therefore, it has been held that the owner of a horse is lia- ble for injuries inflicted on an innocent party by its running away, it appearing that the owner's servant was negligent in not properly se- curing and restraining it.®* And where a hostler at an inn negli- gently omitted to put the bits in the mouth of a guest's horse, and in consequence the horse became unmanageable, and damaged the plaint- iff and his buggy, the master was held chargeable. °' So, where a servant was sent by his master to Lincoln's-Inn-Pields, a place where people are always going about, with two ungovernable horses attached to a coach, and the servant there drove them to make them tractable and fit them for the coach, and the horses, because of their ferocity, ran upon the plaintiff and hurt and grievously wounded him, the master, as well as the servant, was held liable in case.^^ And trespass lies against a master for the act of his servant where, while the servant drives his master in a gig, the horse runs away and does damage.'^ So in the case of the servants of a carman, who negligently ran over a boy in the streets and maimed him; and where servants of a man, with his cart, ran against the cart of the plaintiff, in which there was a pipe of wine, which was thereby spoiled, the masters of the respect- ive servants were held liable.'* And it is actionable negligence upon s. c. 61 Hun (N. Y.) 164; 39 N. Y. (N. Y) 413; Street v. Laumier, 34 St. Rep. 932; 15 N. Y. Supp. 765. Mo. 469; Hummell v. Webster, That the husband should be. joined Bright. (Pa.) 133. in such an action, see Fitzgerald v. »»Hall v. Warner, 60 Barb. (N. Quann, 109 N. Y. 441. Y.) 198. "'- Kessler v. Lockwood, 42 N. Y. " Michael v. Alestree, 2 Lev. 172 ; St. Rep. 563; s. c. 16 N. Y. Supp. s. c. sui noun. Michell v. AUestry, 1 677. See the charge to the jury by Vent. 295; sub nom. Mitchil v. Ales- Krekel, J., involving this question tree, 3 Keb. 650. in some obscure way: Hun toon v. "Chandler v. Broughton, 3 Tyrw. Trumbull, 2 McCrary (U. S.) 314. 220. '"Ante, § 518. "Anonymous, 1 Ld. Raym. 739. » McCahill v. Kipp, 2 E. D. Smith 825 1 Thomp. Neg.] care and restraint of animals. the part of the owner of a horse accustomed to run away, to leave it in a public street unhitched, in charge of a boy fourteen years old, who was not well, and who was incapable of managing the horse, by reason of which the horse, having become frightened, ran away and commit- ted an injury."" And so, an action of tort to recover damages sus- tained by reason of being run over by defendant's horse, which had broken away from defendant's servants, can only be maintained by showing negligence on the part of the master or servants ; and the defendant may introduce in defense evidence of the directions and declarations of one of the servants to the other, respecting the care and management of the horse, just before the time of his running away, for the purpose of showing that they were using due care.^"" In like manner, if one employs an agent to control and manage his farm and the properties thereon, the knowledge of the agent of the vicious habits of a dog owned and kept by the principal on the farm, is deemed in law the knowledge of the principal; and hence evidence which tends to show that the agent had such knowledge is admissible in an action against the principal for damages caused by the dog.^°^ And generally, it has been held that evidence tending to show that the servants of the owner of a dog knew of its evil propensities, is admissible to prove the fact of such propensities ; and, being admissi- ble for one purpose, the court will not presume that the jury made an improper use of it.^"^ § 900. Liability for Setting Dogs upon Trespassing Animals.* — The general law with regard to the right of defense and prevention against trespassers, whether of man or of animals, is that the person trespassed against has no right to use any more force than is necessary to defend his person or property, — that is, to repel the trespassing person or animal. ^"^ Applying this doctrine to the case of animals "Frazer v. Kimler, 2 Hun (N. Y.) Cases Self-Def. 92; Hinchliffe's Case, 514; s. c. 5 N. Y. S. C. (T. & C.) 16. 1 Lewin C. C. 161; Harrison v. ^"Sullivan v. Scripture, 3 Allen State, 24 Ala. 67; s. c. Horr. & Th. (Mass.) 564. Cases Self-Def. 71; State v. Morgan, "'Corliss V. Smith, 53 Vt. 532. 3 Ired. L. (N. C.) 193; Com. v. »« Corliss V. Smith, 53 Vt. 532. Drew, 4 Mass. 391; s. c. Horr. & Th. "Where the defendant's agent, with- Cases Self-Def. 705; People v. Hor- out express authority, purchased a ton, 4 Mich. 67; Meade's Case, Lewin dog, and the testimony was conflict- C. C. 184; s. c. Horr. & Th. Cases ing as to whether the principal rati- Self-Def. 798, note; Carroll v. State, fied the purchase, it was held that 23 Ala. 28; s. c. Horr. & Th. Cases the question was for the jury: Cor- Self-Def. 804; Pond v. People, 8 liss V. Smith, supra. Mich. 150; s. c. Horr. & Th. Cases a This section is cited in § 907. Self-Def. 814; Patten v. People, 18 "^Pennsylvania v. Robertson, Mich. 314; s. c. Horr. & Th. Cases Add. (Pa.) 246; s. c. Horr. & Th. Self-Def. 826; Greschia v. People, Cases Self-Def. 152; State v. Thomp- 53 111. 295; s. c. Horr. & Th. Cases son, 9 Iowa 188; s. c. Horr. & Th. Self-Def. 854; People v. Payne, 8 826 DOGS. [2d Ed. trespassing upon one's field, it results that the owner of the field has no right to use more force as against the animals than may become necessary to distrain them under his common law right of distress, which right is generally defined and regulated by statute in the United States. If therefore, he sets his dogs upon colts trespassing upon his grounds, and drives them into a barb wire fence, without taking any precaution to prevent them from being injured, he will become liable to their owner for the unnecessary damage thus inflicted upon him.^"* Cal. 341; s. c. Horr. & Th. Cases (spring guns); Reg. v. Murphy, 2 Self-Def. 863; Gray v. Coombs, 7 J. Crawf. & Dix C. C. 20; McClelland J. Marsh. (Ky.) 478; s. c. Horr. & v. Kay, 14 B. Monr. (Ky.) 106; Gar- Th. Cases Self-Def. 867 (spring diner v. Thibodeau, 14 La. An. 733; guns); Johnson v. Patterson, 14 State v. Vance, 17 Iowa 144; Pries- Conn. 1; s. c. Horr. & Th. Cases ter v. Augley, 5 Rich. Law (S. C.) Self-Def. 878 (poisoning fowls); 44. State V. Moore, 31 Conn. 479; s. c. '"Aspegren v. Kotas, 91 Iowa Horr. & Th. Cases Self-Def. 891 497; s. c. 59 N. W. Rep. 273. 827 1 Thomp. Neg.J cake and resteaint of animals. CHAPTER XXXII. trespassing animals. Section Section 904. General statement of the lia- (2) Arkansas. bility at common law for (3) California. trespasses of animals. (4) Connecticut 905. The common-law rule further (5) Dakota Ter. explained. (6) Illinois. 906. Distinctions between the com- (7) Indiana. mon-law rule and the "Amer- (8) Iowa. ican rule." (9) Kansas. 907. Removing trespassing animals. (10) Maine. 908. Distraining and impounding (11) Massachusetts. trespassing animals. (12) Michigan. 909. Liability for erecting unlawful (13) Mississippi. fences. (14) Missouri. 910. Liability for unlawfully de- (15) Nebraska. stroying fences. (16) New Hampshire. 911. Liability where animals break (17) New Jersey. through partition fences. (18) New York. 912. What constitutes "running at (19) North Carolina. large" within the meaning of (20) Ohio. prohibitory statutes. (21) Oklahoma. 913. Measure of damages for inju- (22) Oregon. ries committed by trespass- (23) Pennsylvania. ing animals. (24) South Carolina. 914. Liability for trespasses by do- (25) Tennessee. mestic animals under va- (26) Texas. rious statutes. (27) Vermont. (1) Alabama. (28) Wisconsin. § 904. General Statement of the Liability at Common law for Trespasses of Animals.* — As it is the natural propensity of such do- mestic animals as horses, cattle, sheep, swine, and the like, to stray- away, at common law the owner of such animals was bound to confine them on his own premises at all events ; and if they escaped and com- mitted a trespass on the land of another, unless through the defect of fences which the latter was bound to repair,^ the owner was liable to a This section is cited in §§ 866, seems to be that the owner of ani- 888, 906. mals who fails to restrain them ' The rule of the common law from entering upon the premises of 828 TRESPASSING ANIMALS. [2d Ed. an action of trespass, though he had no notice, in fact, of such pro- pensity,^ and although he was not guilty of any negligence.^ In other words, the general rule at common law was, that the owner of land was under no obligation to fence out the animals of others, but was required to fence in his own. This rule is in force in several of the States ; has been modified in some, and abrogated in others.* § 905. The Common-Law Rule Further Explained. — It has been held, where the common-law rule prevailed, that where a cow, of which the defendant had the general care and control, was turned out of the pasture by a stranger and driven in the direction of the plaintiff's close, and being left, strayed upon it and committed injury, an action of trespass would lie against defendant. ° And at common law, where animals commit a trespass by breaking and entering the close of another, and while there doing mischief, the mischief thus done may another, is liable for the damages done by them, unless their entrance upon his premises was effected through his fault, as where they came through a defective fence which it was his duty to maintain and keep in repair: Phillips v. Co- veil, 79 Hun (N. Y.) 210; s. c. 61 N. Y. St. Rep. 156; 29 N. Y. Supp. 613; Rust V. Low, 6 Mass. 90; Keliher v. Connecticut River R. Co., 107 Mass. 411; Shepherd v. Hees, 12 Johns. (N. Y.) 433; McDonnell v. Pitsfield &c. R. Co., 115 Mass. 564; Cowles v. Balzer, 47 Barb. (N. Y.) 562; D'Arcy V. Miller, 86 111. 102. - Mason v. Keeling, 12 Modern 335; 1 Ld. Raym. 606; Rex v. Hug- gins, 2 Ld. Raym. 1583; Dyer 25, pi. 162; 20 Vin. Abr., tit. "Trespass," B, 424; Millen v. Fandrye, Poph. 161; Jones on Bail., 131; Jenkins v. Turner, 2 Salk. 662; Decker v. Gam- mon, 44 Me. 322; Goodman v. Gay, 15 Pa. St. 188; Dickson v. McCoy, 39 N. Y. 401; Stud well v. Ritch, 14 Conn. 292; Com. Dig., tit. "Droit," M, 2; 3 Bla. Comm. 211; Williams V. New Albany R. Co., 5 Ind. Ill; Lafayette &c. R. Co. v. Shriner, 6 Ind. 141; Page v. Hollingsworth, 7 Ind. 317; Phillips v. Covell, 79 Hun (N. Y.) 210; s. c. 61 N. Y. St. Rep. 156; 29 N. Y. Supp. 613. 2 Brdman v. Gottshall, 9 Pa. Super. Ct. 295; s. e. 43 W. N. C. 405; Tillett V. Ward, 10 Q. B. Div. 17; O'Riley V. Diss, 41 Mo. App. 184. •Avery v. Maxwell, 4 N. H. 36; Richardson v. Milburn, 11 Md. 340; Wells T. Howell, 19 Johns. (N. Y.) 385; Knight v. Abert, 6 Pa. St. 472; Herold v. Meyers, 20 Iowa 378; Stoner v. Shugart, 45 111. 76 ; Waters V. Moss, 12 Cal. 535; Laws v. North Carolina R. Co., 7 Jones L. (N. C.) 468; Stafford v. Ingersoll, 3 Hill (N. Y.) 38; Brady v. Ball, 14 Ind. 317; Lyons v. Merrick, 105 Mass. 71; Campbell v. Bridwell, 5 Ore. 311. The Supreme Court of the United States have said that in this coun- try in the progress of its settlement, the principle that a man was bound to keep his cattle confined within his own grounds or else he would be liable for their trespasses upon the uninclosed grounds of his neigh- bors, was never adopted or recog- nized as a law of the country, except as it might refer to ani- mals known to be dangerous: Bu- ford V. Houtz, 133 U. S. 320; s. c. 33 L. ed. 618; 10 Sup. Ct. Rep. 305. But this statement of the law is certainly inaccurate as to some of the States where the common-law rule is fully recognized. For Eng- lish decisions on fences, see Powell V. Salisbury, 2 You. & Jer. 391 Churchill v. Evans, 1 Taun. 529 Dovaston v. Payne, 2 H. Black. 527 Singleton v. Williamson, 7 Hurl. & N. 410; Goodwin v. Chevely, 4 Hurl. & N. 631; s. c. 28 L. J. (Exch.) 298; Barber v. Whiteley, 11 Jur. (N. S.) 822; Nowell v. Smith, Cro. Eliz. 709; Stevens v. Whistler, 11 East 51; Wakeman v. Robinson, 1 Bing. 213; Child V. Hearn, L. R. 9 Exch. 176. ' Noyes V. Colby, 30 N. H. 143. 829 1 Thomp. Neg.] care and restraint of animals. be alleged and recovered upon as aggravation; and a knowledge upon the part of the owner, of the propensity of the animal to do the kind of injury committed, need not be shown." Thus, where oxen break the plaintiff's close and kill his cow, the owner would be answerable without proving that he knew they were accustomed to gore.'' § 906. Distinctions between the Common-Law Rule and the "Amer- ican Rule." — A distinction must be observed in considering this sub- ject, between the rule at common law where the owner of animals was required to restrain them, and where the owner of land was required to fence it, and the rule which has been held proper in many of the newer States of the American Union, under which the owner of ani- mals is not bound to restrain them, but the owner of land, if he would keep out his neighbor's animals, is bound to fence it.* Where the so- called "American rule" requiring the land-owner to fence prevails, if the land-owner does not fence, he can not complain of the intru- sion of the cattle of his neighbor ; but if he does fence, his fence must be respected ; and, having fenced his uninclosed land, he may lawfully remove his neighbor's cattle therefrom, and can not be restrained by injunction from so doing." Although no scienter is necessary in a case where, at common law, the animals of the defendant trespass upon the land of the plaintiff, or where, under the "American rule" requiring owners of land to fence the same, the animals of another break through a fence and trespass upon the close, in order to re- cover damages for the mischief which such animals may do,^" — ^yet the rule is otherwise where the "American rule" prevails in the case of animals getting upon the uninclosed lands of others. Here, if one animal is vicious to the knowledge of its owner, and, in the exercise of its vicious propensity, hurts the animal of another there found, the owner of the vicious animal must pay damages under the principles "Beckett v. Beckett, 48 Mo. 396; 10 C. P. 10; Morgan v. Hudnell, 52 Dolph V. Ferris, 7 Watts & S. (Pa.) OMo St. 552; s. c. 33 Ohio L. J. 262; 367;. Lyke v. Van Leuven, 4 Denio 2 Oliio Leg. News 496; 27 L. R. A. "(N. y.) 127; s. c. 1 N. Y. 515; Bar- 862; 40 N. E. Rep. 716. njim V. Vandusen, 16 Conn. 200; 'This rule is considered in the Lee V. Riley, 34 L. J. (C. P.) 212; next volume with reference to the Dunckle v. Kocker, 11 Barb. (N. liability of railway companies for Y.) 387. But see Scetchet v. Elth- killing and injuring domestic ani- am, 1 Freem. 534; Decker v. Gam- mals. mon, 44 Me. 322; Dufer v. Cully, 3 "Davis v. Davis, 70 Tex. 123; s. e. Ore. 377; Malone v. Knowlton, 60 7 S. W. Rep. 826. As to the policy Hun (N. Y.) 585; s. c. 15 N. Y. of the law in this regard in Kansas, Supp. 506. see Union &c. R. Co. v. Rollins, 5 'Angus V. Radin, 5 N. J. L. 815. Kan. 177; Larkin v. Taylor, 5 Kan. And see Cox v. Burbridge, 13 C. B. 433; Hill v. Applegate, 40 Kan. 31. (N. S.) 430; 32 L. J. (C. P.) 89; >» A««e, § 904, et seg. also, Ellis V. Loftus Iron Co., L. R. 830 TRESPASSING ANIMALS. [2d Ed, of the common law.^^ So, under the American rule, Tcnowledge that cattle are "breachy," that is, liable to break through lawful fences, is necessary in order to make the owner liable for damages which may accrue for permitting them to run at large. ^^ § 907. Removing Trespassing Animals. — If domestic animals tres- pass upon land, the owner of the land, even where it is uninclosed, under the rule of the common law of England, or even where they break his close and trespass upon his land where the American rule prevails, requiring him to fence, — may remove them therefrom, using no more force than is reasonably necessary, and not be liable if injury results to the animals from the use of such necessary force, either civilly or criminally.^' For this purpose, he may set a dog upon cattle and horses ;^* provided he is not in any way wanting in ordinary care and prudence arising from the size and character of the dog, or in the manner of setting him upon them, and afterwards pursuing them.^° And it makes no difference whether the cattle were trespass- ing or not; the care necessary in either case must be reasonable and proper.^* The willful and wanton injury to a beast which is tres- passing can not be justified. ^^ The owner of the land may drive them to the confines of his own premises, and turn them into the highway, and he is not responsible for any injury which may occur to them, or any injury they may commit subsequently;'® provided they did not get into his close through any defect in his fence, caused by his own negligence. '*' And while it is not his duty to impound them, unless made so by statute, or to further secure them, he must not drive them any further than to the highway; and if he does so, and they stray away, he is liable.^" "Hill v. Applegate, 40 Kan. 31; "Bac. Abr. tit. "Trespass," E; s. c. 19 Pac. Rep. 315. Amlck v. O'Hara, 6 Blackf. (Ind.) '"Clarendon Land &c. Co. v. Mc- 258; Clark v. Adams, 18 Vt. 425; Clelland, 89 Tex. 483; s. c. 31 L. R. Davis v. Campbell, 23 Vt. 236; A. 669; 34 S. W. Rep. 98; rehearing Smith v. Waldorf, 13 Hun (N. Y.) denied in s. c. 35 S. W. Rep. 474. 127. In Illinois, turkeys are animals, and " Mclntire v. Plaisted, 57 N. H. if they trespass upon the premises 606; Totten v. Cole, 33 Mo. 138. of another, their owner is liable for " Deane v. Clayton, 7 Taun. 496- the damages; although there is an 498, 505, per Parke, J.; id,., 510; opening in the hedge of the person Loomis v. Terry, 17 Wend. 496; into whose close they get, large Snap v. The People, 19 111. 80. enough to permit the passage of a " Humphrey v. Douglass, 10 Vt. hog. A statute relating to domestic 71; 11 Vt. 22; Cory v. Little, 6 N. H. animals running at large was held 213. not to apply: McPherson v. James, '"Palmer v. Silverthorn, 32 Pa. St. 69 111. App. 337. 65; Wood v. La Rue, 9 Mich. 158. "■ Avery v. People, 11 111. App. 332. =» Knott v. Digges, 6 Md. 230; "Compare ante, § 900. Knour v. Wagoner, 16 Ind. 414. 831 1 Thomp. Neg.J care and restraint of animals. §908. Distraining and Impounding Trespassing Animals. — At common law, if the animals of one person escape upon the land of another and there do damage, the injured land-owner has the right to distrain them while in the act, though not after they have left his land; and this is called distraining animals damage feasant. The distrainor has the right to impound and hold the animals until the owner has tendered him sufficient amends for the damage which they have committed. If they can not agree upon the amount of such damages, the usual course, in the absence of a statutory rule, is to settle the matter in an action of replevin brought by the owner of the animals, after tendering to the land-owner the amount, if any, which the owner of the animals admits to be due. But in all American jurisdictions (it may be assumed), this subject is regulated by statute, and the usual mode of ascertaining the damages is by an appraisal, or by some proceeding before a justice of the peace.^'- The distrainor acquires a species of possessory lien upon the animals, and this would be in some cases ineffectual unless he could enforce it by a sale of them. Accordingly, statutes exist giving this right of sale, which can not, in general, take place until there has been something in the nature of a judicial condemnation, in which the owner has had the opportunity of appearing or being heard.^^ These statutes often re- quire the commitment of the distrained animals to a public pound in charge of a public officer called a poundmaster. This officer incurs a liability to the owner of the animals, for injuring them by failing suit- ably to keep them by giving them food and water (and, it may be assumed in severe weather, shelter), analogous to that incurred under like circumstances by a sheriff or a constable. ^^ In like manner the distrainor must exercise his power of distress in such a manner as to inflict no unnecessary damage upon the distrained animals. If he attempts to drive trespassing hogs from his cornfield in warm weather to his own enclosure some distance away, he may become liable to their owner in case they die by overheating while being so driven.^* If he impounds them, he is bound to put them in a pound fit, at the time, for the purpose. He can not relieve himself from liability for injuries suffered by cattle from the unfitness of the pound, by show- 21 The writer refers the reader to v. Hyatt, 10 Colo. 223. See also a recent and very learned work by Spitler v. Young, 63 Mo. 42; Shultz John H. Ingham, Esq., of the Phila- v. Quinn (Pa.), 2 Lack. L. News delphia bar, on the subject of the 141. Law Relating to Animals, in which ^ Adams v. Adams, 13 Pick, will be found (on page 301, et seq.) (Mass.) 384; Wood v. Bailey, 144 a full discussion of the subject of Mass. 365; s. c. 4 N. Bng. Rep. 251; distraining, impounding, and selling 11 N. E. Rep. 567. trespassing animals. '* Harris v. Brummell, 74 Mo. App. ^^ Ingham on Animals, 321; Willis 433; s. c. 1 Mo. App. Rep. 235. V. Legris, 45 111. 289, 292; Brophy 832 TRESPASSING ANIMALS. [2d Ed. ing it was generally in good condition/' or that he did not know of its bad condition,^*' or that it was the only pound provided by the parish or town; for if the town pound is in bad condition, he ought not to put them there ; and he is bound to provide them with sufficient food and drink while they remain in the pound ;^^ but he is not liable for injuries received by the cattle from other animals in the pound without his agency or knowledge.^' If the distrainor, upon the ani- mals being demanded by their owner, does not disclose his lien upon them, but claims to be the owner of them, he will thereby estop himself from setting up his lien in an action to recover possession of them. 2 » § 909. liability for Erecting ITnlawful Fences. — Elsewhere we have had occasion to consider the liability of a land-owner for injuries to domestic animals of another proprietor caused by the erection of harhed wire fences.^" An extension of the same principle will make one land-owner liable for injuries visited upon the animals of another land-owner, in consequence of the erection by the former of any other kind of unlawful or insufficient fence. For example, in a jurisdic- tion where the law requires a land-owner to fence his crops and allows domestic animals to stray upon uninclosed lands, if an owner builds an insufficient fence around his cornfield, in consequence of which the cattle of his neighbor get in and eat the unharvested corn in such quantities as to kill them, it can not be doubted that the former will be liable in damages to the latter. On the other hand, the former ^'Wilder v. Speer, 8 Ad. & E. 547; must be enforced by execution and Bignell v. Clarke, 5 Hurl. & N. 485. sale of the property within a year " Bignell v. Clarke, 5 Hurl. & N. and a day; and in case of a failure 485. to sell within that time, the lien is " Adams v. Adams, 13 Pick, released and can not be continued (Mass.) 384. by filing a hill in chancery: Harri- ^Brightman v. Grinnell, 9 Pick, son v. Wade, 3 Coldw. (Tenn.) 505. (Mass.) 14. One who caught an- In Delaware, animals in the public other's horse trespassing in his road can not be impounded under field, which was not enclosed with 15 Del. Laws, chap. 65, in the ab- a lawful fence, and tied it with a sence of negligence of the owner or rope to a limb of a tree, where it his agents, but may be impounded was found dead the next morning, where they escape by his leaving the the appearances indicating that it bars of his enclosure open: Spru- had been choked to death, was ance v. Truax, 9 Houst. (Del.) 123; guilty of an unlawful act, and was s. c. 31 Atl. Rep. 589. In Kansas, liable for the statutory penalty of where cattle break through a lawful five times the value of the horse, if fence and do injury, the owner of its death was the natural and proxi- the land may either sue for dam- mate consequence of his act, of ages, or take possession of the cat- which the jury were to judge: Wil- tie and have the damages assessed hite V. Speakman, 79 Ala. 400. as provided by Kan. Comp. L. 1879, =°Maynard v. Anderson, 54 N. Y. ch. 40, § 33: Prather v. Reeves, 23 641. In Tennessee, the lien of the Kan. 627. bargainor is a purely legal lien, and ^'' Post, §§ 961, 962. VOL. 1 THOMP. NEG. — 53 833 1 Tliomp. Neg.] care and eestraixt of animals. land-owner will not be so liable if he is prevented from erecting a lawful and sufficient fence by the act of the latter, — as where the latter refuses to allow him to use a right of way, for the purpose of com- pleting his fence, leading to the field which he is endeavoring to fence in.^^ At common law it seems that one was not liable for the manner of fence he erected upon his land, though it was of such a kind as to deprive his neighbor of light and air, and although his motives in erecting the fence may have been governed by ill will.^^ On the other hand, there are authorities which make it actionable to erect with malicious intent a fence of such a nature as to be a nuisance to a neighbor.^' Statutes limiting the height of fences and declaring all others actionable nuisances have received judicial approval.^* § 910. Liability for TJnlawfuUy Destroying Fences. — A person who unlawfully destroys the fence of another, whereby animals enter his field and destroy his crop, is liable to him for the immediate and direct damages thereby inflicted; but not for the damages which are the result of the negligence of the land-owner in failing to take such reasonable steps as he can to restore the fence so destroyed.''^ This is a grievous species of trespass, and, when maliciously committed, sub- jects the owner, in some jurisdictions, to prosecution under statutes defining and punishing what is known as "malicious mischief." It is not the present purpose to consider these statutes, because malicious injuries lie outside of the scope of a work on the subject of negli- gence.^* § 911. Liability where Animals Break through Partition Fences. — This question is quickly answered where the rule of the '' Godden v. Cooman, 107 Iowa Western Granite &c. Co. v. Knick- 209; s. c. 77 N. W. Rep. 852. On erbocker, 103 Cal. Ill; Hunt v. Cog- the subject of liability for the gin, 66 N. H. 140; Holmes v. Fuller, TnaUoious erection of a fence, see 68 Vt. 207; Lord v. Langdon, 91 40 L. R. A. 177. On the subject of Me. 221 (making malice the gist of fences as nuisances in the street, the action), see 39 L. R. A. 662. '"Ante, §§ 201, 251, 252. "- Mahan v. Brown, 13 Wend. =' A decision of the Supreme Court (N. Y.) 261; Lapere v. Luckey, 23 of Alabama falls under the eye of Kan. 534; Pickard v. Collins, 23 the writer in which it has held that Barb. (N. Y.) 444; Western Granite a partition fence, as defined and reg- &c. Co. V. Knickerbocker, 103 Cal. ulated by the Alabama statute, m 111. which there is a joint or common ^' Sankey v. St. Mary's &c. Acad- property by adjoining proprietors, emy, 8 Mont. 265; Flaherty v. is not within Ala. Grim. Code, Moran, 81 Mich. 52; approving § 3888, providing for the punish- Burke v. Smith, 69 Mich. 380 ; Kirk- ment of one who unlawfully, mali- wood V. Finegan, 95 Mich. 543; Peek ciously, or negligently breaks down V. Roe, 110 Mich. 52. any fence or inclosure of another: =* Harbison v. White, 46 Conn. Wheeler v. State, 109 Ala. 56; s. c. 106; Rideout v. Knox, 148 Mass. 368; 19 South. Rep. 993. Smith V. Morse, 148 Mass. 407; 834 TRESPASSING ANIMALS. [2d Ed. common law prevails. The owner of the trespassing animals is liable as an insurer.^'' And even where there is a partition fence, yet unless it has been apportioned between the two land-owners so that a part of it is assigned to each for the purpose of inspection and repair, one of the land-owners may recover damages from the other for a trespass by the cattle of the other, unless the cattle got through the portion of the fence which the person sufEering the damage was bound to keep in repair.^* The converse of the proposition is, of course, true: the owner of live stock is liable for damage done by them, where they broke through a line fence, which he was obliged to repair, and injured the crops of an adjoining owner; but he is not liable for such an injury by his stock while pastured upon the farm of another.^" § 912. What Constitutes "Running at Large" within the Meaning of Prohibitory Statutes. — Statutes and municipal ordinances have been frequently enacted, prohibiting the owners of animals from allow- ing them to run at large, and these have given rise to a good many decisions involving the question what constitutes a "running at large" by domestic animals.*" It has been reasoned that, in order to prove the violation of an ordinance against knowingly suffering or permit- ting domestic animals to graze on the public street, it is not necessary to show that the grazing was intentionally permitted; since, if the act is knowingly done or permitted, no preconceived intention is neces- sary.*^ Within the meaning of various statutes and ordinances, do- mestic animals have been held to be "running at large" under the following circumstances : — Where a man turned his cattle loose in one of his fields which was but partly fenced, and they escaped into a field of a neighbor, destroying his crops ;*^ where a bull broke through a fence into an adjoining field where the plaintiff's mare was being pas- " Ante, § 839. even if the negligence of a stranger •" McKowan v. Harmon, 56 111. in starting up or driving tlie colt App. 368. was a contributing cause of the in- '"Eck v. Hocker, 75 111. App. 641. jury: Wilder v. Stanley, 65 Vt. 145; A. and B., adjoining landowners, s. c. 20 L. R. A. 479; 26 Atl. Rep. made a parol agreement to keep in 189. repair the partition fence, and A. "Osborne v. Kimball, 41 Kan. 187; leased his land. It was held that Julienne v. Jackson, 69 Miss. 34; A.'s tenant could not maintain an Petersburg v. Whitnack, 48 111. App. action against B. for damages 663; Duggan v. Hansen, 43 Neb. caused by the animals of the latter, 277. What does not: Wolf v. Nich- whioh broke through that portion olson, 1 Ind. App. 222; Missouri &c. of the fence which A. was, by the R. Co. v. Shumaker, 46 Kan. 769; terms of the agreement, to main- Martin v. Reed, 10 Pa. Co. Ct. 614; tain: Baynes v. Chastain, 68 Ind. Stephenson v. Ferguson, 4 Ind. App. 376. If a colt escapes from a pas- 230. ture through the negligence of an " Petersburg v. Whitnack, 48 111. adjoining owner as to a division App. 663. fence, and is injured while roaming, *- Osborne v. Kimball, 41 Kan. 187. the adjoining owner will be liable, 835 1 Thomp. Neg.] care and kesteaint of animals. tured for hire, and, by an agreement between the defendant and the owner of the field, was allowed to remain there over night;*' where a dog was found in a public street, unmuzzled and unaccompanied by its owner.** On the other hand, under like statutes and ordinances, animals have been held not to be "running at large" under the follow- ing circumstances: — Where animals had escaped from an enclosure and their owner was endeavoring to recover them;*° where a colt fol- lowed its dam as she was being driven along the public street, either immediately in front of her or by her side, until it was separated from her and chased away by a horse which was running at large ;*® where the owner of a hull, by an agreement with his neighbor, allowed it, with his other cattle, to cross his neighbor's farm and to graze thereon, and both farms were otherwise inclosed;*'- and where swine, with the express permission of the person seeking to distrain them, were turned into his fields, which were not fenced off from defendant's land.*^ § 913. Measure of Damages for Injuries Committed by Trespassing Animals. — The general rule is that the owner of premises upon which trespasses are committed by domestic animals of another, may take them up and hold them for the payment of the damages done, but is entitled to no more than the actual damages and reasonable charges for keeping and feeding them.*^ For injuries inflicted by domestic animals permitted to run at large, and alleged to have been known by the defendant to be vicious and disposed to injure men and animals, exemplary damages are allowed only on proof of gross and criminal negligence, evincing a wanton disregard of the rights of others, which, in law, is equivalent to malice. °" In assessing damages in trespass quare clausum fregit, the immediate consequences of the injurious act are to be regarded, and not remote, speculative, and contingent conse- quences, which the party injured might easily have avoided by his own act. Thus, where the trespass consisted in removing a few rods of fence, it was held that the proper measure of damages was the cost of repairing it, and not the injury to the subsequent year's crop arising from the defect in the fence, it appearing such defect was known to the plaintiff. '^ And in an action against the owner of hogs for injuries *= Duggan V. Hansen, 43 Neb. 277. *" McPherson v. James, 69 111. App. " Julienne v. Jackson, 69 Miss. 34. 337. "Wolf V. Nicholson, 1 Ind. App. ■» Pickett v. Crook, 20 Wis. 358; 222; Stephenson v. Ferguson, 4 Ind. Elliott v. Herz, 29 Mich. 202; Jones App. 230. V. Perry, 2 Esp. 482; Keightlinger «> Elliott V. Kitchens, 111 Ala. 546; v. Egan, 65 111. 235; Von Pragstein s. c. 33 L. R. A. 364; 20 South. Rep. v. Windier, 2 Mo. App. 598; Meihus 366. v. Dodge, 38 Wis. 300. " Missouri &c. R. Co. v. Shumaker, " Loker v. Damon, 17 Pick. 46 Kan. 769. (Mass.) 284. « Martin v. Reed, 10 Pa. Co. Ct. 614. 836 TRESPASSING ANIMALS. [2d Ed. done by them to the plaintiff's crops, he can not be allowed to prove what amount of crop he would have made but for the injury ; but the damage would be the value of the crops at the date of their destruc- tion, so far as they were destroyed. ^^ If the owner of domestic ani- mals which have been distrained while trespassing upon the land of another, tenders to the party impounding them an amount sufficient to cover the damages actually sustained by such party, together with the expenses which he has incurred in keeping them, this will extin- guish the lien of such party, and any subsequent detention of them will be unlawful, and he will not be entitled to compensation for sub- sequently keeping and feeding them.^^ The damage in respect of which trespassing animals may be distrained damage feasant, is not confined to damage to the freehold, but includes injuries to other ani- mals.^* § 914. Liability for Trespasses by Domestic Animals under Various Statutes. — Statutes in regard to fences are so various that it would be difficult, and a work of supererogation, to attempt to extract from them a harmonious principle, or to classify them; we shall, therefore, give the decisions which we have found, under the names of the respective States. The same subject, so far as it embraces injuries to cattle by railway trains, is considered in the next volume. (1) Alabama. — In this State, except where the rule is changed by local statutes, uninclosed lands are regarded as common of pasturage, over which cattle or stock may be suffered to run at large ; and if the owner of the lands desires to protect himself against damage, he must erect and maintain a lawful fence around them.°° A lawful fence must be five feet high, and, if made of rails, not more than four inches "'^Gresham v. Taylor, 51 Ala. 505. 411. It has been held that if an See Richardson v. Northrup, 66 animal, while trespassing upon Barb. (N. Y.) 85; Seamans v. Smith, the lands of another, commits a 46 Barb. (N. Y.) 320; Armstrong v. special damage, as by assaulting the Smith, 44 Barb. (N. Y.) 120. owner while attempting to drive it "" McPherson v. James, 69 111. App. out, such damages may be recovered 337. It has been held that one who by the way of aggravation of the has a right to use a dam upon the damages incident to the primary land of another to convey water to trespass; and this, although the ani- his mill, and to enter to make re- mal is not shown to be naturally pairs and to protect the dam, can mischievous: Troth v. Wills, 8 Pa. not recover for damages thereto Super. Ct. 1; s. c. 42 W. N. C. (Pa.) caused by the cattle of the land- 504; citing Beckwith v. Shordike, 4 owner, who has a right to the water Burr. 2092. for his stock, where it does not ap- "Boden v. Roscoe (1894), 1 Q. B. pear that it might not have been 608. protected, or so constructed, that it '^Wilhite v. Speakman, 79 Ala. could not be injured by the cattle: 400. Keller v. Fink (Cal.), 37 Pac. Rep. 837 1 Thomp. Neg.] care and restraint of animals. apart; and if stock trespass upon lands thus fenced, the owner of the stock will be liable.°° A statute of Alabama," exempts the owner of animals from liability for trespass on uninclosed lands, and further provides that one who injures or destroys an animal so trespassing shall be liable in five times its value. The owner of land tied up a horse trespassing on his land, and the horse was found choked to death by the rope. It was held that the question of negligence in the man- ner of tying was only material on the question whether the horse's death was the proximate consequence of the tying ; that if it was, the liability imposed by the statute existed. ^^ (2) Arkansas. — In this State, it has been held that the owner of an unaltered jack is not liable for a filly killed by it, where, without his knowledge or intentional or negligent permission, it broke from the place where it was kept, under a statute^ ^ making the owner of such an animal liable for all damages sustained by its "running at large.""" (3) California. — In this State, it is a "custom of the country to permit domestic animals to roam at large upon the uninclosed commons," and a plaintiff is not guilty of negligence in allowing his horse to run at large. So held in an action against a railroad for killing it."^ A party can not recover for inju- ries done by cattle breaking into his close, unless the land entered be inclosed by a fence of the character described in the statute ;°^ or at least by an inclosure equivalent to the statutory fence in its capacity to exclude cattle."^ The statute of this State'* giving a remedy by process in rem against trespassing cattle does not take away the rem- edy to recover damages from their owner for the trespass, where the cattle have not been distrained damage feasant.^^ The statute of this State as to trespassing animals,"" does not contemplate a recovery of a part of the damages by a proceeding under the statute, and another portion of the damages growing out of the same trespass, by means of an action at law, — the theory of the decision being that continuous trespasses do not constitute several causes of action."^ Under another statute of the same State,"* providing that the distrainor of horses damage feasant may hold them for ten days, and, if they are not re- == Code Ala. 1876, p. 470. See Jean " Waters v. Moss, 12 Cal. 535. v. Sandiford, 39 Ala. 317. '^ Stat. April 27, 1855. " Ala. Code, § 1587. »= Comerford v. Dupuy, 17 Cal. "^Wilhite V. Speakman, 79 Ala. 308. See also Doherty v. Thayer, 400. 31 Cal. 141; Richmond v. Sacra- "'Sand. & H. (Ark.) Dig., § 7301. mento &c. R. Co., 18 Cal. 351. »» Briscoe v. Alfrey, 61 Ark. 196; "'Feb. 4, 1874. s. c. 30 L. R. A. 607; 32 S. W. Rep. °= Triscony v. Brandenstein, 66 505. Railroad "right of way" not Cal. 514. within Sand. & H. Ark. Dig., § 1184, " Cal. Act, 1874, § 8. as to "fencing districts" and cost of " De La Guerra v. Newhall, 53 fencing: Little Rock &c. R. Co. v. Cal. 141. Huggins, 64 Ark. 432; s. c. 43 S. W. «'Cal. Act March 27, 1892. 5.ep. 145. 838 TRESPASSING ANIMALS. [2d Ed. deemed within that time, they shall be sold at public auction, after notice, — the distrainor is held to waive his lien by purchasing and asserting title to the horses so distrained, at a void sale.®® A fence built entirely on the lot of the owner building it, is not within another statute of this State,^" regulating the height of "division fencing" in cities and towns.' ^ (4) Connecticut. — In this State, the common- law rule has been adopted that the owners of lands are obliged to inclose them by a lawful fence, or they can maintain no action for a trespass done thereon by the cattle of another.''^ Where the defense to an action for trespass by cattle was that they entered through the plaintiff's defective fence, it was held that this defense might be re- pelled by showing that the cattle were unruly.''^ Land-owners are not bound to fence against unruly cattle.''* (5) Dakota Ter. — In Dakota Territory — and it may now be assumed in the two States of ISTorth Dakota and South Dakota,— the owner of cattl^ might let them run at large upop all lands except cultivated or meadow lands, or in young timber ;''° and it was held that the law making animals running at large trespassers^ did not apply to the Black Hills country of Da- kota. '^^ (6) Illinois. — Formerly, in order to maintain an action for the trespass of cattle upon one's close, the owner of the clo.-e must have had it surrounded by a good and sufficient fence.''' But under a recent statute,'''* making it unlawful for any animal of the species of horse, ass, mule, cattle, sheep, goat, swine, or geese to run at large, the owner of cattle must keep them from his neighbor's premises or answer for the damages caused by them.'® Turkeys were not within the language or meaning of this statute.**" A partition-fence, whether existing by agreement, by acquiescence, or under stat- ute, can not be removed until the parties interested in its remaining "Chase v. Putnam, 117 Cal. 364; "Hine v. Wooding, 37 Conn. 123. s. c. 49 Pac. Rep. 204. Similarly See also Bissell v. Southworth, 1 see Harrison v. Wade, 3 Coldw. Root (Conn.) 269. (Tenn.) 505; Maynard v. Anderson, "Williams v. Northern &c. R. Co., 54 N. Y. 641. 3 Dak. 168; s. c. 14 N. W. Rep. 97. ™ Cal. Stat. 1885, p. 45. " Sprague v. Fremont &c. Co., 6 " Ingwersen v. Barry, 118 Cal. Dak. 86. 342; s. c. 50 Pac. Rep. 536. That " Seeley v. Peters, 10 111. 130; Sto- the owner of sheep which have tres- ner v. Shugart, 45 111. 76; Misner v. passed upon the land of another is Lighthall, 13 111. 609. not liable under Cal. Stat. 1878, p. ™Rev. Stat. 111., chap. 8, § 1; 111. 176, to pay all the damages caused Act June 21, 1895. by the trespass of his own sheep ™ Birket v. Williams, 30 111. App. and those of others over whom he 451. has no control, — see Dooley v. 17,500 «» McPherson v. James, 69 111. App. Head of Sheep (Cal.), 35 Pac. Rep. 337. 1011. "Studwell V. Ritch, 14 Conn. 292; Wright V. Wright, 21 Conn. 344. "Barnum v. Vandusen, 16 Conn. 200. 839 1 Thomp. Neg.] care and restraint of animals. are properly notified of its intended removal.'^ The common law is in force as to inside fences.^ ^ If cattle or hogs trespass upon lands through a division- fence which it is the plaintifE's duty to keep in repair, by reason of its insufficiency, he can not recover.^* (7) In- diana. — It is competent for the legislature to declare that an action shall not be maintained for a trespass committed by cattle, in favor of the owner of lands not securely fenced. This portion of the statute applies only to outside fences, the parties to a partition-fence being equally bound to repair it.*° And it makes no difference that the cattle escaped from the field where they were put, into and through the field of another, and from thence through a defective partition- fence into the field of the plaintifl;, where they did the injury.*' The owner of cattle who negligently allows them to wander upon a railroad track which is properly fenced, is liable for injuries to a train that runs over them, if there is no contributory fault on the part of the servants of the road ; and the fact that the county commissioners have passed an order allowing cattle to run at large in the county does not affect the rights of the parties.^^ The above-mentioned statute super- sedes the common-law rule concerning trespassing animals. It is not competent for the owner of the land to prove that, although the inelos- ure was not such as good husbandmen generally keep, yet it was such as was kept in the locality where the land was situated, where fences were taken in during the winter to avoid the spring freshets.*' The mere fact that a man cut a tree on his uninclosed land so that it was nearly ready to fall, and set it on fire, and that the tree afterwards fell upon plaintiff's horse and killed it, did not render the owner liable. The injury was not the natural or probable consequence of the act.*" (8) Iowa.— Formerly, the common-law rule that every man is re- quired to keep his cattle within his own close, under the penalty of answering in damages for injuries arising from their running at large, was not in force in Iowa, and he might lawfully suffer them to run at large on the uninclosed land of another;"" the owner of cattle going '^McCormlck v. Tate, 20 111. 334; (Ind.) 96. As to actions against Buckmaster v. Cool, 12 111. 76. townships for damages for sheep *■ Stoner v. Shugart, 45 111. 76; killed hy dogs, under Burns' Rev. Ozburn v. Adams, 70 111. 291. Stat., § 2853, see Columbia Twp. "D'Arcy v. Miller, 86 111. 102. v. Pipes, 122 Ind. 239; s. c. 23 N. E. «= Myers v. Dodd, 9 Ind. 290. And Rep. 750. That the report to the see Hoover v. Wood, 9 Ind. 286; town trustees required by Burns' Cook V. Morea, 33 Ind. 497; Crisman Rev. Stat, § 2854, must be un- V. Masters, 23 Ind. 319. der oath: Columbia Twp. v. Pipes, "Brady v. Ball, 14 Ind. 319. 122 Ind. 239; s. c. 23 N. E. Rep. 750. " Sinram v. Pittsburgh &c. R. Co., That it must be in writing: Abell v. 28 Ind. 244. Prairie Civil Twp., 4 Ind. App. 599; «» Blizzard v. Walker, 32 Ind. 437. 31 N. E. Rep. 477. "» Durham V. Musselman, 2 Blackf. ""Wagner v. Bissell, 3 Iowa 396; 840 TRESPASSING ANIMALS. [2d Ed. upon the unfenced land of another might lawfully enter thereon to drive them off ;°^ and it was necessary, to enable a plaintiff td recover for injuries done by cattle upon his land, to show that it was protected by a sufficient fence to turn ordinary stock. °^ But, under the stat- ute of 1870, the owner of trespassing stock is liable for the damages done by them, without inquiry as to whether the premises trespassed upon by them were fenced or not.®^ However, the owner of property injured by cattle is bound to the exercise of ordinary care to prevent damage. What constitutes care, under given circumstances, is a ques- tion for the jury."* But a person is not liable to the owner of adja- cent property for trespasses thereon, committed by stock which reached it through his premises. °° A statute of this State, '^ prohibits the owners of bulls from allowing them to run at large, and makes them liable for damages occasioned by such animals at large without proof of scienter, unless the party injured was himself at fault.^^ To render the owner of such an animal running at large in violation of a statute, liable for an injury committed upon the highway, it is not necessary that the highway was legally established as such ; but it is sufficient if the road was opened to the public as a highway, and that the hull was loose in such highway, and not under control. °' (9) Kansas. — -The law of this State as to inclosures makes the party having a fence in- sufficient according to law, guilty of negligence, and he can not re- cover for injuries done his crops by stock running at large and roam- ing upon his land, through such insufficient fence ; nor can such a party recover, even if the owner of the stock was himself chargeable with negligence, unless it amounted to a willful, wanton, or malicious want of care.'^ The act in relation to fences^"" so far modifies the common law, that no action will lie for trespasses by cattle on real estate, unless such real estate is inclosed with a sufficient fence.^"^ But proof that growing crops were not inclosed by a sufficient fence will not defeat an action for trespass by cattle, if it is shown that the cattle were driven upon the premises by their owners, and that the latter were guilty of wanton and willful negligence. ^°^ If roaming cattle break through a lawful fence and commit a trespass, it is no defense that Heath v. Coltenback, 5 Iowa 490; '"McClain's Iowa Code, § 2255. Alger V. Mississippi R. Co., 10 Iowa "Meier v. Shrunk, 79 Iowa 17; 268. s. c. 44 N. W. Rep. 209. " Camp V. Flaherty, 28 Iowa 520. »« Meier v. Shrunk, 79 Iowa 17; '" Heath v. Coltenback, 5 Iowa s. c. 44 N. W. Rep. 209. 490. As to what is a lawful fence, "Larkin v. Taylor, 5 Kan. 433. see Phillips v. Oystee, 32 Iowa 257, And see Fillmore v. Booth, 29 Kan. and McManus v. Finan, 4 Iowa 283. 134. "Little v. McGuire, 38 Iowa 560; ™Gen. Stat. 1868, chap. 40. Hallock V. Hughes, 42 Iowa 516. '" Darling v. Rodgers, 7 Kan. 592. " Little V. McGuire, 38 Iowa 560. "^ Powers v. Kindt, 13 Kan. 74. •"Little v. McGuire, 43 Iowa 447. 841 1 Thomp. Neg.J care and restraint of animals. the premises were not entirely surrounded by a lawful fence."" Where the statute of this State^"* provided that a fence must be at least four feet high, it was held erroneous, in an action for damages committed by trespassing stock upon lands of the plaintiff, to instruct the jury that a fence three feet and ten or eleven inches high at one particular place, if it would average four feet high, or about four feet high, would be sufficient.'"^ (10) Maine. — In this State, where there is no prescription, agreement, or assignment, under the statute, whereby the owner of land is bound to maintain a fence, no occupant is obliged to fence against an adjoining close ; but in such a case, there being no fence, each owner is obliged, at his peril, to keep his cattle on his own close. And where a tenant is bound to maintain a fence against an adjoining close, it is only against such cattle as are rightfully on that close. The statute of 1831'"® is merely in affirmance of the common law.'"' The right to sell beasts taken damage feasant under that statute'"* is given only in cases where the injury was done to lands inclosed with a legal fence.'"" Trespass can not be maintained by the proprietor of unfenced land against one employed in making a road, whose cattle, used in making the road, strayed upon the land against the will of the owner."" Since the statute of 1834, no action can be maintained by either of two adjoining owners of land against any owner of cattle lawfully on the opposite side of a division-fence, for breaking into his inclosure through a defect in such fence, if there has been no division of such fence, or assignment of distinct portions of it by fence viewers, by agreement or by prescription.'" The cattle of one man are not lawfully upon another's land, except by his consent, even if it be unfenced and they pass directly from the highway upon it, where they were permitted to go at large by a vote of the town."^ "^ Rice v. Nagle, 14 Kan. 498. It arose under a wholesome statute '°* Kan. Comp. Stat., chap. 40, § 2. of Maine, with reference to what "= Prather v. Reeve, 23 Kan. 627. are known as "spite fences" (Laws ^""Chap. 128, § 6. Maine, 1893, chap. 188). This stat- "' Little V. Lathrop, 5 Me. 356. ute enacted that any fence, "un- ^^ Ante, § 9. necessarily exceeding eight feet in "° Heath v. Ricker, 2 Me. 408. height, maliciously kept and main- "" Cool v. Crommet, 13 Me. 250. tained," to annoy adjoining owners, 1" Gooch V. Stepheiis(Jn, 13 Me. should be deemed a public nuisance. 371; Eastman v. Rice, 14 Me. 419. Under this statute, read with refer- "^ Lord V. Wormwood, 29 Me. 282. ence to the principles of common See also Perkins v. The Eastern R. law, it was held that one who main- Co., 29 Me. 307. The cases which tained a fence more than eight feet we have been considering in this high, could not, whatever might be chapter have generally involved the his motive, be held liable, if the question whether, in case the land- height above eight feet was neces- owner was obliged to maintain a sary; since if it was necessary, it fence at all, he maintained one could not be deemed to have been which was high enough. We now" "maliciously kept and maintained:" come to a case where the grievance Lord v. Langdon, 91 Me. 221; s. c. 39 was that the fence was too high. Atl. Rep. 552. But it is hard to un- 842 TRESPASSING ANIMALS. [2d Ed. (11) Massachusetts. — The statutes are the foundation of all the obli- gations imposed on citizens by law to make and repair fences.^ ^' The owner of a close is obliged to fence only against cattle lawfully in the adjoining ground ;^^* and if cattle be turned into his close, he may recover, although his fence be insufficient.^ ^^ So, if cattle are turned into the highway to graze, and pass therefrom into an adjoining close through an insufficient fence, the owner of the land may recover for the trespass ; for the defendant's cattle were not lawfully in the high- way.^^^ Animals which escape from the control of persons having charge of them on a highway, and enter an unfenced lot abutting thereon, without the knowledge or consent of the owner thereof, are not lawfully on the lot.^" Where a party is not bound by prescrip- tion, agreement, or assignment to maintain a division-fence, he may sustain an action against the owner of cattle belonging to the adjoin- ing neighbor if they trespass upon his land through the division- fence.ii^ (12) Michigan.— The act of this State of 1847,"» provid- ing that no person shall recover for damages done upon land by beasts, unless in cases where, by the by-laws of the township, beasts are pro- hibited from running at large, except where such lands are inclosed by a fence four and a half feet high, and in proper repair, or some- thing equivalent thereto, did not require individuals to fence their lands, but only precluded recovery for damages done by beasts thereon, if not fenced. ^^^ This act had no reference to the land occupied by a railroad company for its track,^^^ and had reference only to exterior fences.'^^^ The act of 1861^-" only imposes the duty upon a land- owner to build partition-fences for the protection of the adjoining land-owner. He need not keep in repair any particular portion of a derstand what circumstances and (Mass.) 349; Cutter v. Cambridge, height above eight feet would be 6 Allen 20; Sears v. Charlemont, 6 necessary in a country not abound- Allen (Mass.) 437; Burrell v. Bar- ing in giraffes. rell, 11 Mass. 294; Binney v. Hull, 5 "'Rust V. Low, 6 Mass. 90. Pick. (Mass.) 503; Scott v. Dickin- 1" Town V. Dodge, 2 Dane's Abr. son, 14 Pick. (Mass.) 276; Lamb v. 658 (1776); Melody v. Reab, 4 Mass. Hicks, 11 Mete. 496; Rowe v. Beale, 471; Rust v. Low, 6 Mass. 90; Stack- 15 Pick. (Mass.) 123; Minor v. De- pole V. Healy, 16 Mass. 33. land, 18 Pick. (Mass.) 266. "= Melody v. Reab, 4 Mass. 471. "'McDonnell v. Pittsfield &c. R. "» Stackpole v. Healy, 16 Mass. 33; Co., 115 Mass. 564. Lyman v. Gipson, 18 Pick. (Mass.) "'Thayer v. Arnold, 4 Mete. 422; Holbrook v. McBride, 4 Gray (Mass.) 589. See also Bronson v. (Mass.) 215. For general discus- Coffin, 108 Mass. 175. sion as to fences, see Rust v. Low, "° 1 Comp. Laws 1857, § 628. 6 Mass. 90; and for cases on fences, ™ Williams v. Michigan &c. R. Co., see Pool V. Alger, 11 Gray (Mass.) 2 Mich. 259; Wood v. La Rue, 9 489; Rogers v. Newburyport R. Co., Mich. 158. 1 Allen (Mass.) 16; Sparhawk v. ''' Williams v. Michigan &c. R. Co., Salem, 1 Allen (Mass.) 30; Spar- 2 Mich. 259. hawk V. Twichell, 1 Allen (Mass.) '-Johnson v. Wing, 3 Mich. 163. 450; Pettingill v. Porter, 3 Allen '=" Sess. Laws, p. 294. 843 1 Thomp. Neg.J cake and restraint of animals. partition-fence, unless the adjoining proprietor improves his land and a portion of the partition-fence has been assigned to him to keep in repair. Adjoining proprietors may dispense with any partition-fence. The owner of land upon which cattle come from the adjoining prem- ises of a third person, may maintain trespass therefor without showing that the partition-fence between himself and such third party was of lawful height, or that, if it had been apportioned, he kept up his part.^^* A man who turns a herd of cattle loose on the highway unat- tended, in violation of a statute of this State, is held to assume all the risks of damage done by them, and is consequently liable for damage done by them in overturning a vehicle while hooking and pushing each other, although they were not vicious or dangerous. ^^^ This is merely an illustration of the rule that the violation of a statutory duty, from which damage proximately occurs, is actionable on the ground of its being negligence per se.^^" (13) Mississippi. — A lawful fence is a strong, sound fence, five feet high, well staked and ridered, or suffi- ciently locked and so close that beasts breaking into the same can not creep through.^^'' The defendant, who had a fence insufficient under the statute, took up a mule which was doing damage in his field, and tied the mule in his stable, and the mule, in a struggle to escape, was choked to death. It was held that the defendant was liable in an action of trespass for the value of the mule.^^* The common-law rule which compels the owner of cattle to restrain them, and which allows the owner of land to leave it unfenced, does not prevail in Mississippi ; but it is competent for the legislature to change the rule without violating any vested right. The legislature did change the rule by a statute enacted in 1882, '^^^ in respect of certain districts in a particular county. Construing this statute according to its spirit, it is held to extend so far as to forbid the trespassing of cattle owned heyond the limits of the district, as well as those owned within such limits.^^" (14) Missouri. — The statute of this State concerning in- closures entirely abrogates the principle of the common law which im- posed on the owner of animals the duty of confining them to his own premises ;^^^ but it seems that the statute does not apply to a domes- "^ Aylesworth v. Herrington, 17 if they are killed by a railroad com- Mich. 417. For other cases on pany, see Robinson v. Flint &c. K. fences, see Reed v. Drake, 29 Mich. Co., 79 Mich. 323. 222 ; Stewart -v. Carleton, 31 Mich. '" Laws Miss. 1840, p. 203. 270. "^Dickson v. Parker, 3 How. ''^ Shipley v. Colclough, 81 Mich. (Miss.) 219. See Vicksburg &c. R. 624; s. c. 45 N. W. Rep. 1106. Co. v. Patton, 6 Am. L. Reg. 457. ™Ante, § 10. That a land-owner, '^Miss. Code, Feb. 15, 1882; Laws who turns his cattle loose on the Miss. 1882, 232, 233. highway, is guilty of such contribu- ™ Anderson v. Locke, 64 Miss. tory negligence as will prevent him 283. from recovering damages for them, ^ Gorman v. Pacific R. Co., 26 Mo. 844 TRESPASSING ANIMALS. [2d Ed. ticated buffalo lull.'^^^ A land-owner in a district where the stock law is in force has no right to impound animals of an adjoining owner which have escaped into his field, owing to his failure to keep up his portion of a partition-fence, as contemplated by the agreement estab- lishing the fence.^''' (15) Nebraska. — A statute of this State/^* provides that the "owners" of stock shall be liable for all damage done by them upon cultivated lands within the State. One who de- pastures cattle, although without compensation from the general owner, is liable for damages done by them upon the cultivated lands of another under this statute.^ '^ A statute of Nebraska, relating to the distraining of trespassing cattle,^ ^^ provides that nothing in the act shall prevent the person injured from maintaining an action for damages. It is held that one who distrains trespassing cattle, and afterwards surrenders possession of them to the owner, does not waive his lien upon them given by this statute. ^^'^ (16) New Hampshire. — It is settled in this State, that no man is bound to fence against cattle that are upon the highways, unless they are rightfully there.^^* The public have in highways only a mere right of passage. ^^^ No man has the right to turn his horses or cattle into the highway to graze, except in those parts of it where he is the owner of the soil through which it passes ; and if any person turn his horse into the road where he does not own the soil, and the horse escape into an adjoining close through defect of fences which the owner is bound to repair, the owner of the horse will be liable for the damage.^*" It is the occupier, and not the owner of a close, that is bound to keep the fences in repair.^*^ Where there are adjoining closes, with an undivided partition-fence which each owner is equally bound to keep in repair, each is bound to keep his cattle on his own land at his peril.^^^ Where sheep of the defendant escaped through a defective portion of a division-fence which the plaintiff was bound to maintain, and thence into a close of the plaintiff, which was surrounded by a good fence, it was held that, as the sheep escaped from their owner's land through the default of the plaintiff, as between the parties the damage resulting therefrom 441 ; McPheeters v. Hannibal &c. R. Mills v. Stark, 4 N. H. 512. See also Co., 45 Mo. 22; Tarwater v. Hanni- Cornwall v. Sullivan R. Co., 28 N. H. bal &c. R. Co., 42 Mo. 193. 161. "- Canefox v. Crenshaw, 24 Mo. "° Makepeace v. Worden, 1 N. H. 199. 16. "= Field V. Bogie, 72 Mo. App. 185. '" Avery v. Maxwell, 4 N. H. 36. "' Comp. Stat. Neb., chap. 2, art. 3. "" Tewksbury v. Bucklin, 7 N. H. ™Laflin v. Svoboda, 37 Neb. 368; 518. s. c. 55 N. W. Rep. 1049. '«/&i(?.; Glidden v. Towle, 31 N. "°Comp. Stat. Neb., ch. 2, art. 3, H. 168; Dean v. Sullivan R. Co., 22 § 11. N. H. 316. See York v. Davis, 11 "' Laflin v. Svoboda, 37 Neb. 368; N. H. 241, as to revocation of parol s. c. 55 N. W. Rep. 1049. partition of fence. ""Avery v. Maxwell, 4 N. H. 36; 845 1 Thomp. Neg.] care and restraint of animals. must be considered as resulting from the same default.^*^ The owner of a close is not bound to fence against any cattle but such as are right- fully on the adjoining land.^** (17) New Jersey. — The owner is liable where the parties own adjoining closes, between which a statu- tory fence has never been erected, if his cattle trespass on his neigh- bor's land.^*° Owners of land are not bound to erect statutory fences along the highways, to protect themselves from cattle suffered to run at large upon the public roads and pasture there.^*° The owner of an animal straying upon a railroad track can not recover for injuries done to it by a locomotive.^*'' To recover damages done by cattle trespassing on his close, the plaintiff must show that his fence was lawful, that cattle broke through the fence, and that the appraisers were appointed as the statute directs.^ *^ (18) New York. — Every unwarrantable entry by a person or his cattle on the land of another is a trespass, though the dntry be by cattle coming from the highway, and the land be unfenced.^*' But if cattle driven along a highway escape into an adjoining field, against the owner's will, the trespass is excused. Where a proprietor of land is bound to maintain a fence by prescription against cattle, he can not maintain trespass if they enter through a defect in his fence.^'"' The statute of 1838^" has not changed the common-law rule that an adjoining land-owner, in order to excuse trespasses by his cattle through a division-fence, must show that the cattle passed through a portion of the fence which was defective, and which his neighbor was bound to repair.^^^ (19) North "' Page V. Olcott, 13 N. H. 399. "° Tonawanda R. Co. v. Hunger, 5 "* Lawrence v. Coombs, 37 N. H. Denio (N. Y.) 255 (affirmed 4 N. Y. 331; Cornwall v. Sullivan R. Co., 28 349). N. H. 161. '" Sess. Laws, p. 253. "°Coxe V. Robbins, 9 N. J. L. 384. "'Deyo v. Stewart, 4 Denio (N. '"Chambers v. Mathews, 18 N. J. Y.) 101; Shepherd v. Hees, 12 Johns. L. 368. (N. Y.) 433; Griffin v. Martin, 7 "'Vandegrift v. Rediker, 22 N. J. Barb. 297. And see Clark v. Brown, L. 185; Price v. New Jersey R. Co., 18 Wend. (N. Y.) 213; Richardson 31 N. J. L. 229; 32 N. J. L. 19. See v. Northrup, 66 Barb. (N. Y.) 85; this subject of cattle killed upon Golden v. Eldred, 15 Johns. 220; railroad tracks discussed at length Perkins v. Perkins, 44 Barb. (N. Y.) elsewhere. 134; HoUaday v. Marsh, 3 Wend. (N. "» Brittin V. Van Camp, 2 N. J. L. Y.) 162. An animal that has es- 489. Construction of a statute of caped from its owner's premises this State (N. J. Rev. 19), providing without his fault, and to recover for the payment by the township of which he has made immediate and damages to the owners of animals, suitable efforts, is not "running at which have been injured by dogs, large" within N. Y. Laws 1867, ch. with the conclusion that the owner 814, § 1: Coles v. Burns, 21 Hun (N. of the animal can not have the pub- Y. 246. To give a justice jurisdic- lic indemnity where the town com- tion of application, under ch. 459, mittee is without funds: State, Rog- Laws of 1862, as amended by ch. 814, ers, V. Neptune Twp. Committee, 52 Laws of 1867, to sell a trespassing N. J. L. 487; s. c. 20 Atl. Rep. 61. animal, the complaint must allege ""Wells V. Howell, 19 Johns. (N. that the animal escaped upon the Y.) 385. land from the highway. Such alle- 846 TRESPASSIXG ANIMALS. [2d Ed« Carolina. — Under a statute of this State/"^ making it unlawful for live stock to run at large in Buncombe county, and pro- viding a stock law, which requires the erection of an outside fence around the county by the Board of Commissioners, a prosecu- tion can not be maintained against a land-owner in that county for removing a part of a division-fence between himself and his neighbor without giving notice to his co-owner of the fence, as provided for by another statute.^^^ (20) Ohio. — Animals that are not unruly or dan- gerous may be allowed to run at large without liability being incurred by the owner, provided he exercises ordinary care.^"** The simple fact that animals have strayed upon a railroad track without right does not justify a want of proper care to prevent injury to them by those running a locomotive. ^^^. Where a field is inclosed by a fence which at some places is, and at others is not, "of sufficient height and strength, and in every respect such as a good husbandman ought to keep," and cattle break over a part of the fence which is good, their owner is liable.^ ^^ A part-owner of a division-fence, who fails to keep in repair the part assigned to him, whereby stock from the adjacent close break and enter upon his land, is without remedy unless he can show that the stock was breachy and unruly, and that the defect in the fence was not the proximate cause of the damage.^^^ (21) Ohla- Jioma. — The laws of Nehrasha, which were put in force in the Terri- tory of Oklahoma by its Organic Act, and which provide for the re- covery of damages for trespasses committed on cultivated lands by stock running at large,'- °' have no application to an injury done hy one animal to another while running at large, — the object of the stat- ute being merely to protect cultivated lands from the trespasses of stock running at large. There may, however, be a liability in such a case under the principles of the common law, upon an averment and proof of a knowledge of the vicious propensities of the animal on the part of its owner or keeper. '°'' (22) Oregon. — The common-law rule requiring an owner to keep his stock within his own inclosure is not in force in Oregon.^'" (23) Pennsylvania. — The common-law rule re- gation can not be Inserted after an- "' Phelps v. Cousins, 29 Ohio St. swer: Coles v. Burns, 21 Hun (N. 135. Statute passed in 1865 pro- Y.) 246. hibiting animals from running at "=aN. C. Act 1885, ch. 219. large: 1 Sayler's Stat. 877. See i=^N. C. Code, § 2802; State v. Ed- also Cleveland &c. R. Co. v. Elliott, monds, 121 N. C. 679; s. c. 28 S. E. 4 Ohio St. 474; Cincinnati &c. R. Co. Rep. 545. V. Waterson, 4 Ohio St. 424. '"Kerwhacker v. Cleveland &c. R. "' Comp. Stat Neb., §§ 97-99. Co., 3 Ohio St. 172 (1854); s. c. 1 '™ Meegan v. McKay, 1 Okla. 59; Thomp. Neg., 1st ed., p. 472. s. c. 30 Pac. Rep. 232. ""'Cranston v. Cincinnati &c. R. '"Moses v. Southern &c. R. Co., Co., 1 Handy (Ohio) 193 (1854). 18 Ore. 385; s. c. 8 L. R. A. 135; 23 "'» McLean v. McCarthy, 3 West. Pac. Rep. 498. Law Mag. 489 (1861). 347 1 Thomp. Neg.] care and kestkaint of animals. quiring the owner of cattle to keep them within his own close pre- vails in this State, and the land-owner is not required to fence in order to recover damages for trespasses committed upon his land by his neighbor's cattle.^*^ It seems that, by an act established in the colony of Pennsylvania as early as 1700, the owner of improved lands was obliged to fence them to keep out the roving cattle of others, but that a statute enacted in 1889 repealed this early statute, and restored the rule of the common law, by which the owner of cattle is obliged to restrain them, and by which the owner of lands on which they tres- pass is entitled to damages.^"'' In the interval between the establish- ment of this early statute and its recent repeal, the holdings below given were made: — Trespass will lie for throwing down a fence and turning the defendant's horses into the plaintifE's close, though the fence be not a lawful one.^"^ In order to maintain trespass against the breach of cattle, the plaintiff must have a sufficient fence.^^* But if adjoining land-owners agree not to make any common division- fence, each is liable to the other for the trespass of his cattle.^"' Where one of two adjoining owners puts up a partition-fence on the boundary line for one-half the distance, and the other refuses to com- plete it, he can not recover for a trespass upon his land by his neigh- bor's cattle. '■^^ (34) South Carolina. — It is not a trespass for cattle to pasture at large upon the unenclosed forest-land in this State; neither is it trespass if, while roaming at large in pursuit of pasturage, they happen to stray upon the track of a railroad; and a prima facie case of negligence is made out where it is shown that cattle thus stray- ing are killed by a railroad train.^"'' But the rule does not apply to a case where a dog is killed by a railroad train.^'* (25) Tennessee. — Every planter shall make a sufficient fence about his cleared land in cultivation, at least five feet high, and so close for at least three feet from the surface of the earth as to prevent hogs from passing through the same.^"' All parts of the fence must be five feet high, or no re- covery can be had, although it was more than five feet high at the place where the cattle broke over.^'" This act applies to civil, and ™ Thompson v. Kyler, 9 Pa. Co. St. 95. See also Dysart v. Leeds, 2 Ct. 205; s. c. 8 Lane. L. Rev. 245; Pa. St. 488; Knight v. Abert, 6 Pa. Arthurs v. Chatfield, 9 Pa. Co. Ct. St. 472; Mitchell v. Wolf, 46 Pa. St. 34; s. c. 21 Pitts. L. J. (N. S.) 53. 147; Stephens v. Shriver, 25 Pa. St. I'^Erdman v. Gottshall, 9 Pa. Su- 78; Fleming v. Ramsey, 46 Pa. St. per. Ct. 295; s. c. 43 W. N. C. (Pa.) 252. 405. "'Banner v. South Carolina &c. "'Adams v. McKinney, Add. 258. R. Co., 4 Rich. L. (S. C.) 329. "'Gregg v. Gregg, 55 Pa. St. 227; "« Wilson v. Wilmington &c. R. Race v. Snyder, 30 Leg. Int. 361; Co., 10 Rich. L. (S. C.) 52. 21 Pittsb. L. J. 29. ""Acts 1807, chap. 8, § 1. '==Milligan v. Wehinger, 68 Pa. St. ""Poke v. Lane, 4 Yerg. (Tenn.) 235. 36. "'Rangier v. McCreight, 27 Pa. 848 TRESPASSING ANIMALS. [2d Ed. not criminal, proceedings; so, the fact that a fence is not such as the law requires is no defense to an indictment for killing a horse which has broken into defendant's enclosure.^'' ^ The insufficiency of a fence is no bar to an action for pulling it down, when the act is done without or in abuse of authority.^'^ The liability of the owner of notoriously mischievous cattle under a statute of this State,^''^ for all damages done by the same to the enclosure or crops of others, is not conditioned upon the owner of the enclosures or crops which are thus damaged, maintaining a fence five feet high as required by another statute,^'* — the reason being that the former statute creates an exception in cases where the cattle are notoriously mischievous; and provides that in such a case, all that is required is proof of the mischievous character of the cattle, and of the amount of damages inflicted.^^^ (36) Texas. — Under a provision of the Penal Code of this State,^'* making it a criminal offense "willfully" to drive an animal from the range without the consent of the owner, a conviction can not be sustained where the defendant acted under a claim of right.^" The fact that the owner of cattle has knowledge that the fence of an- other is insufficient, does not make him liable for damages committed by his cattle where they get through such insufficient fence.^''* (37) Vermont. — The owner of land is under no obligation to fence along the highway; his duty in this respect is limited to the restraint of his cattle from trespassing on his neighbor's land.^''' Where the fences are divided, pursuant to statute, and cattle stray into the plaintiff's close through defect of the plaintiff's part of the fence, he can not re- cover; but where not so divided, he can recover.^*" It is no answer to an action for trespass upon occupied lands, by cattle other than those of an adjoining proprietor, that the plaintiff's fences were insuffi- "'The State v. Council, 1 Tenn. "^Clarendon Land &c. Co. v. Mc- 305. Clelland, 89 Tex. 483; s. c. 31 L. R. "''Crawford v. Maxwell, 3 Humph. A. 669; 34 S. W. Rep. 98; rehearing (Tenn.) 476. See also Stallcup v. denied in s. c. 35 S. W. Rep. 474. Bradly, 3 Coldw. (Tenn.) 406. That an unconstitutional and void ™ Mill. & V. Tenn. Code, §§ 2255- statute which authorizes the im- 2257. pounding of certain animals run- '" Tenn. Code 1858, § 1682. ning at large, is not a justification '" Smith v. Jones, 95 Tenn. 339 ; for the detention of such animals, — s. c. 32 S. W. Rep. 200. see Nass v. Maxwell (Tex. Civ. ""Texas Penal Code, art. 749. App.), 32 S. W. Rep. 561 (no off. "'Yoakum v. State, 21 Tex. App. rep.). 260. The word "willfully" in such a. "'Holden v. Shattuck, 34 Vt. 336; statute is, in the view of the court, Keenan v. Cavanaugh, 44 Vt. 268; to be construed as meaning with an Sorenberger v. Houghton, 40 Vt. evil intent, or as referring to an act 150. done without reasonable ground to ""Keenan v. Cavanaugh, 44 Vt. believe that the same was lawful. 268; Sorenberger v. Houghton, 40 IMd., citing Owens v. State, 19 Tex. Vt. 150. App. 242, and authorities there cited. VOL. 1 THO:iP. NEG. — 54 849 1 Thomp. Neg.] care and eestrai:nt of animals. cient.^*^ The fact that the plaintiff's part of a division-fence was insufficient, is no bar to a recovery for damages sustained solely through the insufficiency of the defendant's part of such fence. ^*'' Under a statute of this State relating to division-fences, giving an ac- tion for damages by one adjoining owner against the other for the failure of the latter to maintain his proportion of such fence/*' one such owner is not guilty of contributory negligence in turning his cattle into his pasture, although having knowledge that the division- fence of an adjoining owner is insufficient, and that if his cattle escape into the field they will be injured.^** In this State, by the principles of the common law, the owner of cattle is bound to keep them from straying into the possessions of others, and if he fails in this duty, and they do damage in so straying, the injury is deemed to be his trespass. The statutes in respect of division-fences between occupied lands do not relieve the owners of cattle from this common- law duty. When such fences are divided pursuant to the statutes, and an adjoining owner fails to maintain his part of the fence, and cattle of the other adjoining owner stray into his close through that part of the fence and do damage, he can not recover for the entry or the damage, for the reason that his own neglect contributes to the in- jury.^*" In trespass qiiure clausum for the entering of cattle, if the defendant does not defend on the ground of a defect in the plaintiff's fence, it is not incumbent upon the plaintiff to show that his fence was legal, in order to make out his right of refcovery. Therefore, a charge of the court "that there being no evidence tending to show that the plaintiff's fence was not a legal fence or satisfactory to the defendant, or that the defendant's cattle ever went on the plaintiff's land by rea- son of the plaintiff not having a legal fence, the presumption is that the plaintiff's fence was legal," — was held not detrimental to the de- fendant, in such a sense as to be the subject of an exception.^*" (28) Wisconsin. — In this State, a fence, in order to be legal, must be four and a half feet high.^^'' "1 Wilder v. Wilder, 38 Vt. 678. '==Keenan v. Cavanaugh, 44 Vt. See Jackson v. Rutland &c. R. Co., 268. 25 Vt. 150; Bemis v. Connecticut &c. ^"^ Sorenberger v. Houghton, 40 Vt. R. Co., 42 Vt. 375. 150. "' Saxton V. Bacon, 31 Vt. 540. See ^'^ Rev. Stat. 1878, chap. 55, § 1390. also Town v. Lamphire, 37 Vt. 52; As to division fences, see Murray v. Tupper V. Clark, 43 Vt. 200. Van Derlyn, 24 Wis. 67; Hazard v. '»=Vt. Rev. Laws, § 3184. Wolfram, 31 Wis. 194; Pitzner v. '=*Eddy V. Kinney, 60 Vt. 554; s. Shinnick, 41 Wis. 676. See also c. 6 N. Bng. Rep. 924; 15 Atl. Rep. Brooks v. Allen, 1 Wis. 127; Butler 198. V. Barlow, 2 Wis. 10; Whalon v. Blackburn, 14 Wis. 432. 850 DISEASED ANIMALS. [2d Ed. CHAPTER XXXIII. DISEASED ANIMALS. Section Section 917. Keeping animals having infec- 924. Infected cattle escaping from a tious diseases not negligence wrecked train. per se. 925. Construction of various stat- 918. Statutes making it negligence. utes. 919. Liability for trespasses by dis- 926. "When both vendor and pur- eased animals. chaser of diseased animals 920. Liability for selling diseased properly joined as defend- animals. ants. 921. Liability for importation of 927. Constitutional law: Congres- cattle infected with Texas sional legislation not exolu- fever. sive. 922. Contributory negligence of 928. Remedy of owner for the kill- the owner whose cattle are in- ing of his diseased animals fected. by the State. 923. Persons importing or failing to 929. Duty to warn oilier owners. restrain infected cattle must 930. Liability of an agister for in- have had knowledge that fection by diseased animals, they were infected. 931. Measure of damages for infect- ing animals. § 917. Keeping Animals having Infectious Diseases not Negligence Per Se. — The keeping of an animal having an infectious disease is not, per se, culpable negligence. The right of every one to use his own property as he pleases, for all the purposes to which such property is usually applied, is unlimited and unqualified up to the point where the particular use becomes a nuisance. Hence the keeping of ani- mals having an infectious disease, on one's own premises, although the adjoining premises have upon them other animals which are likely to be infected by the disease, is not unlawful ; nor will it give the owner of the adjoining premises a cause of action for damage sustained in consequence of the disease being communicated to his animals, unless the person owning the diseased animals hnotvs the fact that they are diseased, and is guilty of some negligence in the manner of keeping them.^ Even the keeping of diseased animals on the defendant's un- ' Fisher V. Clark, 41 Barb. (N. Y.) 2 Robt. (N. Y.) 326 (affirmed in 329; Mills v. New York &c. R. Co., Court of Appeals, as stated in 41 851 1 Thome. Neg.] care and restraint of animals. enclosed lands, to which other animals are in the habit of coming, and ■where it is no trespass for them to come, is not an act of negligence, if the owner of the healthy animals is duly warned of his danger.^ § 918. Statutes making it Negligence. — Statutes exist in several States making the keeping of animals having infectious diseases negli- gence, either generally or under certain conditions therein prescribed. For example, the following statute has been enacted in Illinois : "If any person shall suffer to run at large, or keep in any place where other creatures can have access to and become infected; any sheep known to the owner or person having the care and possession thereof to- be infected with any contagious disease, such person shall be liable to pay all damages that may result from the running at large of such diseased sheep."^ This statute is held remedial, and not penal; whence it follows that the proper form of action under it is case, and not debt, for the recovery of a fine, and that actions under it are sub- ject to the statute of limitations of five years, and not to that of one year and six months.* Under it, a person must pay damages for keeping sheep on his own land so that they infect his neighbor's sheep in an adjoining close. ^ If the owner of such an infected flock of sheep suffer his partition or division fence to get out of repair, so that some of his infected sheep escape into his neighbor's pasture, where there are sheep belonging to his neighbor and also to another person, it will be erroneous to put the inquiry to the jury whether the infec- tion may not have been communicated to his neighbor's sheep indi- rectly through such other sheep ;" and the fact that one of the plaint- iff's sheep communicated the disease to the defendant's flock of sheep will not exonerate the latter from liability to the former, if he there- after permit his flock to run where it can do injury to the plaintiff; and it will not relieve the defendant from any part of the entire amount of damages occasioned thereby to show that the plaintiff did not apply the proper remedy in curing his sheep, it being held that the doctrine of contributory negligence has no application in such a case.'' It is scarcely necessary to add, that whether a particular dis- ease is contagious is a question of fact for the jury.^ N. Y. 619); Clarendon Land &c. Co. "Herrick v. Gary, 65 111. 101. See v. McClelland, 89 Tex. 483; s. c. 31 s. c. 83 111. 85. L. R. A. 669; 34 S. W. Rep. 98; re- "Herrick v. Gary, 65 111. 101. hearing denied in s. c. 35 S. W. Rep. ' Herrick v. Gary, 83 111. 85. 474 (even though aware of their ^ Mount v. Hunter, 58 111. 246. As diseased condition, the owner is not to statutes relating to liability for liable, provided his manner of the disease communicated by Texas keeping them is not negligent). and Indian cattle called the Texas ^ Walker v. Herron, 22 Tex. 55. fever, see Railroad Co. v. Husen, 95 ' 111. Laws 1865, p. 126, § 2. U. S. 465; Kemmish v. Ball, 30 Fed. * Mount V. Hunter, 58 111. 246. Rep. 759. 852 DISEASED ANIMALS. [2d Ed. § 919. Liability for Trespasses by Diseased Animals. — In jurisdic- tions where the common-law rule, requiring the owner of animals to restrain them at peril, and making him answerable as an insurer for all the damage they do when trespassing upon the land of another,** prevails, if animals infected with a contagious disease are permitted by their owner or bailee to trespass upon the lands of another, thereby infecting with such disease healthy animals belonging to the owner of the land so trespassed upon, he may recover of the owner of the tres- passing animals the damages thereby occasioned without reference to the provisions of any statute, and without proof of scienter on the part of the defendant.® This is merely a branch of the rule, established in many cases, that the owner of trespassing animals is liable for the damage done by them without proof of scienter.^" Of course the rule is clearer where it is alleged and proved that the defendant Icnew that the cattle which he allowed to trespass upon the land of the plaintiff and mix with the plaintiff's cattle were infected with the contagious disease.^^ The plaintiff may also prove knowledge of the condition of defendant's animals upon the part of defendant, to enhance the damages-, and without any allegation to that effect in the declaration.^^ And where a person occupying the land of another, as a mere licensee, pastures upon it infected sheep, and the owner of the land, relying upon the representations of the licensee as to the ab- sence of danger from contagion, subsequently pastures his own sheep upon the land, and they become diseased thereby, the original occu- pant of the land is liable in damages.^' «aAMte, § 839. "Eaton v. Winnie, 20 Mici. 157. " Anderson v. Buckton, 1 Strange In the State of Texas, where cattle 192 ; Barnum v. Vandusen, 16 Conn, are allowed to run at large and 200. their owner is not liable for tres- " Van Leuven v. Lyke, 1 N. Y. pass unless the land trespassed upon 515; Dunckle v. Kocker, 11 Barb, is enclosed with a fence sufficient (N. Y.) 387; Dolph v. Ferris, 7 under the statute, the common-law Watts & Ser. (Pa.) 367; Angus v. rule, holding the owner liable for Radin, 2 Southard (N. J.) 815; s. all mischief done by his cattle c. 8 Am. Dec. 626. while trespassing, regardless of his " Kemmish v. Ball, 30 Fed. Rep. knowledge of their disposition or 759; s. c. afC'd 129 U. S. 217; Grimes condition, does not obtain. There, V. Eddy, 126 Mo. 168; Clarendon in order to recover damages result- Land &c. Co. V. McClelland, 89 Tex. ing from the communication of dis- 483; s. c. 31 L. R. A. 669; 34 S. W. ease by cattle which have broken Rep. 98. into land properly enclosed, it is '■■ Barnum v. Vandusen, 16 Conn, necessary to prove knowledge on 200. But see Cooke v. Waring, 2 the part of the owner, both of their Hurl. & Colt. 331, — a case where de- breachy disposition and diseased fendant's sheep being diseased, got condition. As the common-law rule into the plaintiff's field where his , rests upon the conclusive presump- sheep were grazing, and infected tion of negligence from the failure them. It did not appear how they to perform the duty to restrain do- got there. It was held that, in the mestic cattle, it is considered that absence of negligence, proof of sci- the removal of this duty leaves the enter was necessary. Also see owner liable only for such dam- Noyes V. Colby, 30 N. H. 143. 853 1 Thomp. Neg.J care and restraint op animals. § 920. Liability for Selling Diseased Animals, — The sale of dis- eased animals has been held not to be unlawful; and although the seller knew at the time that the animals were infected, and did not disclose it to the buyer, yet he is not liable for injuries occasioned by the spread of the disease among the animals of the purchaser ; for the maxim of caveat emptor applies to such a case.^* Yet, if there is any fraudulent concealment or misrepresentation on the part of the seller, he will be held liable. ^° And where a livery-stable keeper has been induced to receive a horse of the defendant into his stable, upon repre- sentations that the horse had recovered from the distemper and could not communicate the disease to other horses, and the livery-stable keeper had two stallions which were injured by the communication of the disease to them, the defendant was held liable.^® Yet, in a case where the question of caveat emptor seems not to have been raised, a principal was held liable in damages for injuries inflicted upon sheep from a disease communicated by others which his agent sold, knowing them to be diseased. From the report of the case, it does not appear that any representations as to the condition of the sheep were made.^^ And in a case where the defendant, with the consent of the plaintiff, put diseased horses into the plaintiff's close, and thereby infected the plaintiff's horses with the disease, it was held not necessary to show deceit upon the part of the defendant, when it was shown that he had knowledge of the diseased condition of his horses.^* So, it was held that a declaration stating that the defendant knowingly delivered a glandered horse to plaintiff, whereby plaintiff, not knowing it, was in- duced to put it with his horse, per quod his horse died, is a good declaration, though no concealment, or fraud, or breach of warranty is averred.^" But one who sold infected cattle, though he knew the herd from which they were selected had been infected, was not liable for the spread of the infection among the purchaser's cattle, if, at the time of the sale, he had reason to believe and did believe that the dis- ease had been wholly eradicated.^" §921. Liability for Importation of Cattle Infected with Texas Fever. — Several of the Western States have passed acts prohibiting ages as are reasonably to be expected '" Fultz v. Wycoff, 25 Ind. 321. from the trespassing of such ani- " Jeffrey v. Bigelow, 13 Wend. (N. mals: Clarendon Land &c. Co. v. Y.) 518. McClelland, 89 Tex. 483; s. c. 31 " Hlte v. Blandford, 45 111. 9. L. R. A. 669; 34 S. W. Rep. 98; re- '"Pentar v. Murdock, 18 Week. hearing denied in s. c. 35 S. W. Rep. Rep. 382; 22 L. T. (N. S.) 371. 474. » Newell v. Clapp, 97 Wis. 104; s. " Hill V. Balls, 2 Hurl. & N. 299. c. 72 N. W. Rep. 366. '"Mullett V. Mason, L. R. 1 C. P. 559. 854 DISEASED ANIMALS. [2d Ed. the driving or bringing into those States of any Texas, Mexican, or Indian cattle during certain seasons of the year, for the reason that cattle from those regions commuiiicate a disease, known as Texas fever, to native herds, without any symptoms of the disease being ap- parent in the cattle which bring the infection. The constitutionality of these acts has been questioned, and sustained in the State courts ;^^ but the United States Supreme Court has taken a contrary view.^^ The grounds upon which the opinion of this court rests are, that such a statute is not a legitimate exercise of the police powers of a State; that the latter can not be exercised over a matter such as interstate transportation of subjects of commerce, confided exclusively to Con- gress by the Federal Constitution ; that, while a State may enact sani- tary laws, and, for the purpose of self-protection, establish quarantine and reasonable inspection regulations; while it may prevent persons and animals suffering under contagious or infectious diseases from en- tering the State; yet it can not interfere with transportation into or through its border, beyond what is absolutely necessary for self-pro- tection; and that neither the unlimited powers of a State to tax, nor any of its large police powers, can be exercised to such an extent as to work a practical assumption of the powers conferred by the Constitu- tion on Congress.^^ Even in the absence of such a statute, one who imports cattle infected with Texas fever and negligently allows them to escape from his care and run at large, is liable in a common-law action for the loss resulting from the communication of the disease to native cattle.^* § 922. Contributory Negligence of the Owner whose Cattle are Infected. — In an action for damages resulting from the communica- tion of Texas fever, brought under statutes prohibiting the importa- tion of cattle infected with that disease, contributory negligence is a complete defense.^" The plaintiff can not recover, if, with knowl- edge of their condition, he receives infected cattle and places them with his herd;^" or if, for the purpose of obtaining a reward, he tempts stray cattle from a wrecked train, which he knows are from an "Wilson V. Kansas City &c. R. =^Kemmisli v. Ball, 30 Fed. Rep. Co., 60 Mo. 184; Husen v. Hannibal 759; s. c. afC'd 129 U. S. 217; Grimes &c. R. Co., 60 Mo. 226; Yeazel v. v. Eddy, 126 Mo. 168; s. c. 26 L. R. Alexander, 58 111. 254; Stevens v. A. 638. Brown, 58 111. 289; Sommerville v. ^= Patee v. Adams, 37 Kan. 133; Marks, 58 111. 371; Chicago &c. R. Railway Company v. Goolsby, 58 Co. V. Gassaway, 7 Ch. Leg. N. 147. Ark. 401; Coyle v. Conway, 35 Mo. ^= Railroad Co. v. Husen, 95 U. S. App. 490; Missouri &c. R. Co. v. 465; s. c. 6 Cent. L. J. 170. Finley, 38 Kan. 550; s. c. 16 Pac. '' 6 Cent. L. J. 121. As to the Rep. 951. effect of the repeal of such a statute, "■ Coyle v. Conway, 35 Mo. App. see Kemmish v. Ball, 30 Fed. Rep. 490. 759; s. c. aff'd 129 U. S. 217. 855 1 Tliomp. Neg.J care and restraint of animals. infected district, into a field with cattle of his own.^' And where he puts Texas cattle to pasture with his own, and, after learning that they are Texas cattle, persists in keeping them there, he can recover only for damages occurring before he knew where the cattle had come from.^^ § 923. Persons Importing or Failing to Bestrain Infected Cattle must have had Knowledge that they were Infected. — Under the statutes above referred to, it is part of the plaintiff's case to allege and prove that the defendant knew of the diseased condition of his cattle, or that the facts were such as to make it negligent for him not to know it."® It is the peculiar character of Texas fever that the im- ported cattle that convey the germs to native cattle, are not them- selves affected by the disease, and bear no visible signs of infection. The courts hold the shipper of cattle chargeable with this knowledge, and to establish his liability under these statutes it is not necessary to show that he actually knew that his cattle are infected; it is suffi- cient if he shipped them from a locality known to be infected.'" This presumption, however, rests upon the notorious prevalence of the dis- ease and the general understanding of its nature. Consequently, in districts seldom affected with it and where its peculiarities are not well known, the presumption is not entertained. In the State of Few York it is held that an agister who pastures native cattle in a field formerly occupied by Texas cattle, where they contract the Texas fever and die, is not liable for their loss, if he was not aware of the fact that the disease could be communicated to native cattle from land where Texas cattle had been kept.'^ § 924. Infected Cattle Escaping from a Wrecked Train. — Where the wrecking of a train renders it necessary to unload cattle, which the railway company transporting them is informed are Texas cattle and " Railway Co. v. Goolsby, 58 Ark. municate disease is an implied con- 401; s. c. 24 S. W. Rep. 1071. dition of liability under the statute =^ Harris v. Hatfield, 71 111. 298. of that State prohibiting the impor- " Coyle v. Conway, 35 Mo. App. tation of diseased cattle. The same 490; Missouri &c. R. Co. v. Pinley, statute, however, provides that the 38 Kan. 550; s. c. 16 Pac. Rep. 951; fact that they are brought from Patee v. Adams, 37 Kan. 133; s. c. south of the southern boundary of 14 Pac. Rep. 505. the State, shall be prima facie evi- '° Lynch v. Grayson, 5 N. M. 587; dence of such knowledge: Missouri s. c. 25 Pac. Rep. 992; s. c. aff'd 163 &c. R. Co. v. Haber, 169 U. S. 613; U. S. 468; Croff v. Cresse, 7 Okla. s. c. 42 L. ed. 878; 18 Sup. Ct. Rep. 408; s. c. 54 Pac. Rep. 558. In the 488; 30 Chi. Leg. News 269. State of Kansas, knowledge or no- "' Gibbs v. Coykendall, 39 Hun (N. tice that cattle are liable to com- Y.) 140; s. c. afE'd 116 N. Y. 666 (mem.). 856 DISEASED ANIMALS. [2d Ed. liable to spread disease, it becomes its duty to corral tbem near the wreck, and, if it drives them upon the highway or allows them to run at large, it is liable for damages resulting from the communication of the disease. ^^ § 925. Construction of Various Statutes. — Under a statute provid- ing that persons transporting diseased animals through the State shall be liable for the communication of disease "along the line of such transportation," the liability is confined to damage done in the imme- diate vicinity of such line, and does not apply where the cattle are driven by a third party to a distance and disease communicated there.^^ A statute prohibiting the importation of diseased cattle, which makes the violation of the law a misdemeanor and grants a right of action to persons injured, for damages thereby sustained, does not impose an absolute liability for damages caused by such importa- tion, but merely makes the fact of the communication of disease prima facie evidence of negligence.^* § 926. When both Vendor and Purchaser of Diseased Animals Properly Joined as Defendants. — ^Under the statute of Kansas,^*^ giv- ing a right of action for damages sustained through the importation of diseased cattle and making such damages a lien on the cattle, one who purchases such cattle and assumes such liability as part of the consid- eration for the purchase, may be joined as defendant, and a personal judgment may be had against him as well as against the vendor.^'' § 927. Constitutional Law : Cnogressional Legislation Not Exclu- sive. — The Act of Congress of March 29, 1884, providing for the in- vestigation and suppression of the diseases of cattle, together with an appropriation of money to carry out its provisions, does not preclude legislation by the States to protect their native cattle from the com- munication of disease by cattle imported from other States.^'' Nor does a reasonable police regulation, prohibiting the importation of cattle which are known, or which by due diligence might be known, to be capable of communicating disease, conflict with the provision of the Eevised Statutes of the United States, § 5258, giving to railroads the right to carry freight and property.^ ^ »= Missouri &c. R. Co. v. Finley, 38 ^Woodrum v. Clay, 33 Fed. Rep. Kan. 550; s. c. 16 Pac. Rep. 951. 897. '=Coyle v. Chicago &c. R. Co., 27 =» Missouri &c. R. Co. v. Haber, Mo. App. 584. 169 U. S. 613; s. c. 42 L. ed. 878; 18 '* Furley V. Chicago &c. R. Co., 90 Sup. Ct. Rep. 488; 30 Chi. Leg. Iowa 146; s. c. 23 L. R. A. 73; 57 News 269. N. W. Rep. 719; 57 Am. & Eng. R. "Missouri &c. R. Co. v. Haber, 169 Cas. 26. U. S. 613; s. c. 42 L. ed. 878; 18 Sup. =*aCoinp. Laws Kan. 1885, oh. 105, Ct. Rep. 488; 30 Chi. Leg. News 269. 80. 857 1 Thomp. Neg.J care and restraint of animals. § 928. Remedy of Owner for the Killing of his Diseased Animals by the State. — Under a statute of ISTew Hampshire' ' providing for the killing of animals afEected with contagious diseases, and for reim- bursement to the owner of their value at the time of appraisal, and allowing an appeal by the owner if he is aggrieved by the "amount of such appraisal," — the owner is entitled only to the value of his beast at the time of appraisal, and he can not appeal on the ground that he should be allowed its value as it was before it became diseased.^* § 929. Duty to Warn Other Owners.^ — Where an agister knows that distemper exists among horses he has on pasture, it becomes his duty to notify those who bring horses to him for pasturage of the fact, and, if he fails to do so, he is liable for damages resulting from the communication of the disease.^" § 930. Liability of an Agister for Infection by Diseased Animals. — . An agister in a country where Texas fever is little known, who is not aware that native cat|;le may contract that disease by merely grazing over land where Texas cattle have been, is not liable for the loss of native cattle which he has received for pasturage and turned into a field he had previously used for Texas cattle, where they have become infected and died.*^ But where an agister knows that some of his horses are afEected with the distemper, he is liable for the communi- cation of the disease, unless he notifies the owner of that fact when he brings his horse for pasturage.*^ § 931. Measure of Damages for Infecting Animals. — In assessing damages occasioned by animals being infected by a contagious dis- ease, the special damages asked for must appear to be the legal and natural consequence of the wrong complained of, proceeding exclu- sively from that, and not from the improper act of a third party. As where, in an action for fraudulently selling diseased sheep as sound and healthy, it appeared that the plaintiff, who followed the business of butchering, engaged a person to take some of the mutton which might be on hand during a certain period and sell it, but, in conse- quence of a report that the plaintifE had purchased the defendant's diseased sheep, this person refused to perform his contract, — it was '=Laws N. H. 1889, c. 93, §§ 2, 3, 4. 348. As to the duty to warn, see »= Campbell v. Manchester, 67 N. ante, §§ 852, 854; post, § 993. H. 148; s. c. 36 Atl. Rep. 877. " Gibbs v. Coykendall, 39 Hun CN. a. This section is cited in §§ 852, Y.) 140; s. c. aff'd 116 N. Y. 666. 854. "Costello v. Ten Eyck, 86 Mich. "Costello V. Ten Eyck, 86 Mich. 348. 858 DISEASED ANIMALS, [2d Ed. held that the defendant was not liable for any damages resulting to the plaintifE from this refusal to take the mutton to sell, nor from the re- fusal of plaintiff's customers to deal with him because of the report that he purchased the sheep in question.*^ « Grain v. Petrie, 6 Hill (N. Y.) 523, 859 1 Thomp. Neg.] care and eestraint of animals. CHAPIER XXXIV. CONTRIBDTOKY AND IMPUTED NEGLIGENCE IN CASES OF INJURIES BY ANIMALS. Section Section 934. Application of the rules of con- 938. Contributory negligence in the tributory negligence to this case of injuries from tres- subject. passing animals. 935. Further of contributory negli- 939. Contributory negligence of chil- gence in this connection. dren in such cases. 936. Contributory negligence in 940. Contributory negligence in the teasing or provoking ani- case of infecting animals, mals. 941. Contributory negligence in the 937. Application of the doctrine of improper surgical treatment imputed negligence in these of the wounds received from cases. animals. § 934. Application of the Rules of Contributory Negligence to this Subject. — The rules relating to contributory negligence apply to in- juries committed by animals. The public are entitled to act upon the presumption that all dangerous animals are properly confined; they are therefore exonerated from any special caution against them, ex- cept when, without right, they go upon the land of another, or where they are seen to be not within the place where they may be lawfully kept. Thus, where a bull was confined, and its character known to a person who carelessly left the gate of its enclosure open, and thereby the animal escaped and injured him, it seems he could not recover damages.^ But where there is a public way, or the owner of the mis- chievous animal suffers a way over his close to be used as a public way, he has no right to keep within the close a bull or other animal which he knows to be dangerous to passers-by.^ If a man enters his neigh- bor's field unlawfully, and leaves the gate open, and, before it is known to the owner, cattle enter and destroy the crop, the trespasser is re- sponsible. But if the owner sees the gate open, and frequently passes it, and willfully, obstinately, or through gross negligence leaves it open, and cattle enter through it, it is his own folly.' The mere fact 'Earhart v. Youngblood, 27 Pa. ^ Brock v. Copeland, 1 Esp. 203. St. 331. See Curtis v. Mills, 5 Car. ' Loker v. Damon, 17 Pick. & P. 489; Blackman v. Simmons, 3 (Mass.) 284-288; Cate v. Gate, 50 Car. & P. 138. N. H. 147. So, a person whose un- 860 CONTRIBUTORY NEGLIGENCE OP PERSON INJURED. [2d Ed. that the person injured is technically a trespasser will not exonerate the owner of dangerous animals from liability for injuries inflicted by them, if such owner is negligent in keeping them.* The fault of the party injured must proximately contribute to the injury sustained, to excuse the defendant.^ And in a case where the injury sustained was from the bite of a vicious dog kept by the plaintiff's employer, and the defense was set up that, as the accident occurred through the negli- gence of a co-servant in omitting to chain up the dog, the plaintifE could not recover, it was held that the plaintiff did not assume the risk, as one incident to his employment, that a ferocious dog would not be securely fastened.^ On a principle already considered,' contribu- tory negligence on the part of a traveller on the highway is not a de- fense to an action for damages from his horse becoming frightened by a vicious dog running out at him, where the owner has knowledge of the habit of the dog so to do ; since permitting him to be at large is willful negligence.^ § 935. Further of Contributory Negligence in this Connection. — In those States where the plaintiff is required in his declaration, com- plaint or petition, to allege that he was not guilty of contributory neg- ligence, the same rule applies where the action is to recover damages for injuries from a vicious animal." In such an action evidence that the plaintiff, knowing the dog to be vicious, encouraged it to be on her premises, was held to be some evidence of contributory negligence, sufficient to take the question to a jury.^° But evidence that, at the time of being bitten by the vicious dog of the defendant, the plaintiff was moving at a rapid pace on the highway and talking in a somewhat loud tone, is not sufficient to support a verdict for the defendant on the theory of contributory negligence.^ ^ It is not contributory negli- gence for a man to pass along the highway about his lawful business, although it is merely a neighborhood road, not laid out as a highway, but long used by the public. When, therefore, the owner of unin« ruly cow breaks down the fence of 17 Wend. (N. Y.) 496; Sherfey v. another is not liable for every entry Bartley, 4 Sneed (Tenn.) 58; Rider thereafter made by his cattle upon v. White, 65 N. Y. 54. another's land through the opening; ° See Sheehan v. Cornwall, 29 but his liability is limited to such Iowa 99. entries as occur after allowing a "Muller v. McKesson, 10 Hun (N. reasonable time for the repair of Y.) 44; s. c. afC'd, 73 N. Y. 195. the fence by its owner: Watkins v. 'Ante, § 844. Rist, 67 Vt. 284; s. c. 31 Atl. Rep. » Jones v. Carey, 9 Houst. (Del.) 413. 214; s. c. 31 Atl. Rep. 976. * Marble v. Ross, 6 Cent. L. J. ' Eberhart v. Reister, 96 Ind. 47S. 157; 124 Mass. 44; Woolf v. Chalker, "Twigg v. Ryland, 62 Md. 380. 31 Conn. 121; Sarch v. Blackburn, "Dockerty v. Hutson, 121 Ind. 4 Car. & P. 297; Kelly v. Tilton, 3 102; s. c. 25 N. E. Rep. 144. Keyes (N. Y.) 263; Loomis v. Terry, 861 1 Thomp. Neg.] care and restraint of animals. closed pasture land, across which there was such a neighborhood road, fastened a bull^ which he knew to be vicious, so that a person passing along the road was gored thereby, it was held that the owner of the bull was liable, though he had warned the person injured not to pass.'^ Another court has held that it is not negligence, as matter of law, for a person who encounters a bull running at large to strike the bull with his cane before it attacks him, but that whether such striking is negli- gence or not depends upon the attending circumstances.^' But where the defendant's lull was confined in a small close of the plaintiff with the plaintiff's cattle and horses, by the plaintiff's son, who was his servant, and not the servant of the defendant, and while so confined gored a horse of the plaintiff, — it was held that the defendant was not liable for the damages;^* and the conclusion was the same where the defendant's bull escaped from his pasture upon the plaintiff's land through a gap in a division fence, which the plaintiff was, under a statute, bound to keep in repair, and there injured the plaintiff's horses; and this was so, although there was a statute making it un- lawful for bulls "to run at large out of the enclosure," etc.^° § 936. Contributory Negligence in Teasing or Provoking Ani- mals. — One court has ruled that to defeat a recovery of damages for an injury caused by a vicious animal, on the ground of contributory fault in provoking the animal, the provocation must have been volun- tary and with a full knowledge of its viciousness, and not an accidental or inadvertent interference.^" On this theory, it has been held that the accidental stepping upon a dog's toes,^' or the simple act of offer- ing a dog candy, where the plaintiff is not shown to know the dog's vicious qualities,^^ is not such contributory negligence as to constitute a defense. But where the provocation is voluntary, if the person in- jured by the animal brings it upon himself by teasing or provoking " Glidden v. Moore, 14 Neb. 84 ; fendant had no knowledge of any s. c. 45 Am. Rep. 98. vicious propensity in it, and that it '= Meier v. Shrunlt, 79 Iowa 17; was in the hands of a prudent keep- s. c. 44 N. W. Rep. 209. er; while the plaintiff's horse was " Carpenter v. Latta, 29 Kan. 591. vicious, and was not properly man- '" Scott V. Grover, 56 Vt. 499; s. c. aged by the person in charge of 48 Am. Rep. 814. Where the plaint- it, — it was held that the defendant ifi's stallion, while being exhibited was not liable for the injury. The in the street, some fifty or sixty loss was attributed to the misman- feet from the defendant's stallion, agement of a horse, vicious and commenced backing toward the de- hard to control, when brought near fendant's horse and kicking; and, another horse of like character: when he had come near the defend- Marreau v. Vanatta, 88 111. 132. ant's horse, the latter turned and '°Fake v. Addicks, 45 Minn. 37; kicked him, breaking a leg, from s. c. 47 N. W. Rep. 450. which he died; and it appeared "Smith v. Pelah, 2 Stra. 1264. that the defendant's horse was kind " Lynch v. McNally, 73 N. Y. 347. and manageable, and that the de- 862 CONTRIBUTORY NEGLIGENCE OF PERSON INJURED. [2d Ed. the animal he can not make a hurt thus produced by his own miscon- duct, the ground of recovering damages against the owner/" as where one willfully, recklessly or needlessly aggravates a dog, in consequence of which the dog bites him.^" It was so held where the owner of a vicious dog, knowing it to be vicious, kept it within a safe inclosure, and a boy stuck his hand through a crack in the fence, and was bitten by it;^^ and even where a teamster, knowing of the vicious habits of a stallion kept in a stable, went into a stall next to the stallion and within his reach, for the purpose of getting an article needed by him in the discharge of his duty, and was there bitten by the stallion.^^ § 937. Application of the Doctrine of Imputed Negligence in these Cases. — The cases now about to be cited must be accepted with the caution that the doctrine of imputed negligence upon which they pro- ceed, has been very generally repudiated by the courts and has almost entirely passed out of modern law.^^ There is a holding, the author- ity of which has now become doubtful, which applies the doctrine of imputed negligence to the case of an injury by an animal. The plaintiff, a plate-layer, in the employment of a railway company, was returning from his work on the land of the company upon a trolly, propelled by hand, and some pigs of the defendant got through the fence on the defendant's land, which adjoined the railway, and upset the trolly by getting upon the track in front of it, thereby injuring the plaintiff. It was held that, as it was the duty of the railway com- pany, under a statute, to erect and maintain a fence on its land suffi- cient to exclude the cattle (including pigs) of the adjoining land- owners, and that, as it was through the neglect to perform this duty on the part of his master, that the defendant was injured, he could not recover.^* There is also judicial authority, believed however to be obsolete under the modern doctrine which repudiates the rule of im- puted negligence, to the effect that in cases where children are in the care and custody of their parents, and the parents do not exercise that "Worthen v. Love, 60 Vt. 285; s„ defendant to restrain his pigs, and c. 6 N. Eng. Rep. 655; 14 Atl. Rep, making him liable for damages 461. caused by their trespasses. They es- "Quimby v. Woodbury, 63 N. H. caped through a fence which it was 370. the duty of the railway company to "" Badali V. Smith (Tex. Civ. App.),, maintain, and which it. was eonse- 37 S. W. Rep. 642 (not off. rep.). quently not the duty of the defend- " Buckley v. Gee, 55 111. App. 388,. ant to maintain. The proximate ^ Ante, § 497, et seq. cause of the injury was, therefore, " Child V. Hearn, L. R. 9 Exch. the wrong of the railway company, 176. The case is possibly sustain- and not that of the defendant, and able upon the theory that the stat- the plaintiff brought his action ute pro hac vice, abrogated the rule against the wrong person. of the common law requiring the 863 1 Thomp. Neg.J cake and restraint of animals. care and watchfulness over them which a person of mature years, having the care and custody of children of that age, ordinarily would exei"cise, having reference to the circumstances of the case, and the children receive injuries from vicious animals in consequence of such want of care on the part of the parents, — ^then the owner or keeper of the animal is not responsible for the injury.^° § 938. Contributory Negligence in the Case of Injuries from Tres- passing Animals. — In most of the States of the American Union, with the exception of some of the Eastern States, the common law of Eng- land, which requires the owner of cattle to restrain them, is not in force; but they may lawfully run at large upon the public highway and upon uninclosed lands, without regard to the ownership of such lands. The diiference is that, by the common law of England, the owner of cattle must fence them in; whereas, by the general law of America the owner of land must fence them out. It should be added that, in some of the States, and generally in particular districts in such States, under the operation of a rule called "local option," the rule of the common law, more or less qualified, is reestablished. Here, the statutory rule requires the land-owner to restrain them, subject to certain conditions; and these statutes are called "herd laws." This statement will furnish a key to some of the decisions which follow. The maxim that he who suffers his cattle to run at large takes upon himself the risk incident to it, does not apply to animals lawfully upon the highway, but applies only to such animals as are trespass- ing.^' A person who turns his cattle loose in the highway, without a keeper, in violation of a statute prohibiting them from running at large therein, assumes all the risks of such conduct.^^ The owner of animals is not, as matter of law, guilty of contributory negligence in permitting them to wander to, and become entangled in, barbed wires left lying on the ground by an adjoining owner engaged in building his share of a division fence, where he has no knowledge of the building of such fence.^^ The owner of a pasture is not guilty of contributory negligence in turning into it a horse which is injured by a barbed wire negligently placed on his side of a division fence by an adjoining owner, although he knows of such wire.^^ A land-owner who tears down a gate sufficient to stop cattle in a division fence maintained by him, can not recover damages sustained by cattle escaping through the ^Munn V. Reed, 4 Allen (Mass.) "Shipley v. Colclough, 81 Mich. 431; Logue v. Link, 4 E. D. Smith 624. (N. Y.) 63. "'Lowe v. Guard (Ind. App.); s. 2=Colvin V. Sutherland, 32 Mo. c. 39 N. E. Hep. 428. App. 77. ™ Gooch V. Bowyer, 62 Mo. App. 206; s. e. 1 Mo. App. Rep. 531. 864 CONTRIBUTORY NEGLIGENCE OF PERSON INJURED. [2d Ed. opening into his close, although he was not bound to maintain the gate.^° A man who has placed horses in a field with a reasonably sufficient fence, is not precluded, by the fact that they have broken out, from reeoyering for an injury to them, although the "herd law^' is in force in that place.^^ The failure "of a land-owner to perform his statutory duty to inclose his lands with a fence sufficient to exclude cattle of all sizes and kinds, of ordinary disposition as to breaking fences, will prevent his recovering any damages resulting therefrom by trespassing cattle. ^^ A land-owner who neglects to maintain a line fence, as required by statute, can not recover for a trespass upon his land by cattle of an adjoining owner. ^' § 939. Contributory Negligence of Children in Such Cases. — ^But the owner of a dog can not exempt himself from liability in negli- gently keeping it, in case of an injury inflicted on a child, because it appears the child did not act with the discretion and judgment of a person of mature years. ^* Thus, where the defendant, knowing the ferocious disposition of his dog, and that it had been accustomed to bite persons, and in .particular that when left guarding his team, in a village street, it had attacked persons passing along the highway, afterwards left it unsecured and unmuzzled in or near his sleigh, near a village sidewalk, and a child of seven years, passing on the sidewalk, came to the sleigh and meddled with a whip lying therein, and was thereupon thrown down and bitten by the dog, it was held that defend- ant was liable for the injury.'" '"Carpenter v. Cook, 67 Vt. 102; liable to injury. It followed that, s. c. 30 Atl. Rep. 998. in an action to recover for injuries " Story V. Chicago &c. R. Co., 79 to the plaintiff's cattle, by reason of Iowa 402; s. c. 44 N. W. Rep. 690. having escaped upon the land of " Clarendon Land &c. Co. v. Me- the defendant, and thence upon a Clelland, 89 Tex. 483; s. c. 31 L. R. railroad track where they were A. 669; 34 S. W. Rep. 98; rehear- killed, evidence was not admissible ing denied in s. c. 35 S. W. Rep. on behalf of defendant to prove 474; s. c. in Ct. of Civ. App., 21 S. W. that plaintiff knew of the insuffi- Rep. 170. ciency of the division fence; Eddy '^ Carpenter v. Cook, 67 Vt. 102 ; v. Kinney, 60 Vt. 554. In Missouri, s. c. 30 Atl. Rep. 998. Under the the fact that the plaintiff's own statute of Vermont relating to di- fence was out of repair is not sufiB- vision fences, imposing a liability cient to show contributory negli- to damages upon adjoining owners gence in an action for injuries to who failed to keep up such a por- crops by animals which were shown tion of their fences (R. L. Vt., to have come upon plaintiff's land § 3184), the land-owner is not guilty through the defect in a fence of contributory negligence in turn- which the defendant was bound to ing his cattle into his own pasture, maintain: Pinnell v. St. Louis &c. although he knows that the division R. Co., 49 Mo. App. 170. fence of an adjoining owner is in- '"Munn v. Reed, 4 Allen (Mass.) sufficient, and that if his cattle 431; Plumley v. Birge, 124 Mass. should escape into the field of such 57; 5 Reporter 527. adjoining owner they would be '^ Meibus v. Dodge, 38 Wis. 300. VOL. 1 THOMP. NEG. — 55 o65 1 Thomp. Neg.] care and restraint of animals. § 940. Contributory Negligence in the Case of Infecting Ani- mals. — Contributory negligence of plaintiff is a good defense to an action for infecting cattle. °* § 941. Contributory Negligence in the Improper Surgical Treat- ment of the Wounds Received from Animals. — It has been held that if a wound received from an animal is aggravated by improper sur- gical treatment, the plaintiil can not recover damages for his suffer- ings as thus aggravated;'''' but this statement of doctrine can not be affirmed vrith any confidence. If the sufferer, or those who may be compelled to act for him, exercise reasonable care in securing the services of a reputable surgeon, mistakes made by such surgeon in treating the wound will not be attributed to the patient as contribu- tory negligence.'* =«Patee v. Adams, 37 Kan. 133; °'A»«e, §§ 66, 202. Compare on«e, s. c. 14 Pac. Rep. 505. §§ 251, 252. °'Moss T. Partridge, 9 111. App. 490. 866 TITLE EIGHT. REAL PROPERTY. 867 TITLE EIGHT. REAL PROPERTY. Chapter XXXV. Defects in Eeal Property Injuring Per- sons or Animals Coming thereon, . §§ 945-1073. Art. I. Extent of Obligation to Trespassers, Intrudiers, Bare Licensees,, etc., ....§§ 945- 953. Art. II. Extent of Obligation as to Straying or Trespassing Animals, §§ 955— 962. Art. III. Setting Dangerous Machines for Defense of Property, §§ 964- 967. Art. IV. Duty of Proprietor to Persons Coming on his Premises by Invitation, Ex- press or Implied, §§ 968-1023. SuBDiv. 1. General Nature of this Duty, ... §§ 968-977, SuBDiv. 2. To Whom the Proprietor Owes this Duty §§ 978-983. SuBDiv. 3. Liability for Injuries from Defects in Business Souses or Grounds, §§ 985-993. SuBDiv. 4. Liability for Injuries from Defects in Public Souses or Grounds, etc., §§ 994-1009. SuBDiv. 6. Liability for Endangering Passage over Private Ways, §§ 1012-1017. SuBDiv. 6. Contributory Negligence of the Person Injured, §§ 1019-1022. Art. V. Liability for Injuries to Children, §§ 1024-1051. Art. VI. Falling Walls, §§ 1055-1064 Art. VII. Who Liable where there is any Liability at All, §§ 1067-1073. XXXVI. Injuries from Elevators in Buildings, §§ 1075-1097. XXXVII. Liability for Eemoving the Support of Land, §§ 1101-1135. XXXVIII. Negligence in the Eelation of Landlord and Tenant, §§ 1139-1183. Art. I. Liability as between the Landlord and the Tenant, §§ 1129-1150. Art. II. Liability in Case of Injuries to Third Persons, §§ 1154-1173. Art. III. Other Matters, §§ 1177-1183, 869 1 Thomp. Neg.] care of keal property. CHAPTER XXXV. DEFECTS IIT REAL PROPERTY Ilf jnMNG PERSONS OE ANIMALS COMING THEREON. Art. I. Extent of Obligation to Trespassers, Intruders, Bare Li- censees, etc., §§ 945-953. Art. II. Extent of Obligation as to Straying or Trespassing Ani- mals, §§ 955-962. Art. III. Setting Dangerous Machines for Defense of Property, §§ 964-967. Art. IV. Duty of Proprietor to Persons Coming on his Premises by Invitation, Express or Implied, §§ 968-1022. SuBDiv. 1. General Nature of this Duty, §§ 968-977. SuBDiv. 2. To Whom the Proprietor Owes this Duty, §§ 978-983. SuBDiv. 3. Liability for Injuries from Defects in Business Houses or Grounds, §§ 985-993. SuBDiv. 4. Liability for Injuries from Defects in Public Souses or Grounds, etc., §§ 994-1009. SuBDiv. 5. Liability for Endangering Passage over Private Ways, §§ 1012- 1017. SuBDiv. 6. Contributory Negligence of the Person Injured, §§ 1019-1022. Akt. V. Liability for Injuries to Children, §§ 1024-1051. Art. VI. Palling Walls, §§ 1055-1064. Art. VII. Who Liable where there is any Liability at All, §§ 1067-1073. Article L Extent of Obligation to Trespassers, Intruders, Bare Licensees, etc. SECTioif Section 945. General doctrines. 950. Exposing on open grounds art!- 946. No obligation «to keep one's iicial objects peculiarly dan- premises safe for the benefit gerous. of trespassers, intruders, 951. Leaving premises dangerous idlers, volunteers, or bare contrary to the prohibition licensees. of statutes. 947. Cases in which this rule has 952. Injuries to trespassers, 11- been applied. censees, etc., upon vessels. 948. The rule re-stated as to tres- 953. Cases where the ship-owner has passers. 949. Who are trespassers or bare licensees within this rule— Who not. 870 been held liable. INJURIES FROM DEFECTS IN PREMISES. [2d Ed. § 945. General Doctrines.^ — The general rules applicable to this subject are believed to be these: 1. The owner or occupier of real property is under no obligation to make it safe, or to keep it in any particular condition, for the benefit of trespassers, intruders, mere volunteers, or bare licensees, coming upon it without his invitation, express or implied.^ 2. The owner or occupier of land is under no obligation to make it safe for the benefit of the owners of domestic animals which are permitted to run at large, — and this irrespective of the question whether the rule of law in the particular jurisdiction re- quires the owners of animals to restrain them, or whether it permits them to run at large and requires the owners of cultivated fields to fence their cultivations.^ 3. The owner of real property who, ex- pressly or impliedly, invites the public, or particular members of it, to come upon his premises, assumes the duty toward them of exercising reasonable care to the end that such premises shall not contain danger- ous obstructions, pit-falls and the like, which may result in their in- jury; and if, coming upon his premises by such express or implied in- vitation, they are injured without their own negligence or fault, by reason of his failure to exercise reasonable care to have his premises safe, they may compel him to pay damages.' 4. An exception to the rule first above named exists in what are sometimes called attractive nuisances; so that if the owner and occupier of real property erects and leaves upon his premises anything which is especially attractive to young children, or to domestic animals, and children or animals are attracted to it to their hurt, he must pay damages.^ 5. Another ex- ception to the first above named exists in cases where the owner of grounds abutting a public highway or sidewalk, suffers pit-falls or other nuisances dangerous to public travel, to remain so near to the margins of such highways or sidewalks, that persons in the lawful use of the same are liable to fall into such pit-falls, or stumble upon such obstructions through the ordinary accidents of travel, — then, the author of such nuisances must pay damages.^ It will be the purpose of this chapter to explain and illustrate these doctrines. § 946. No Obligation to Keep One's Premises Safe for the Benefit of Trespassers, Intruders, Idlers, Volunteers, or Bare Licensees.'' — As a general rule the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, intruders, idlers, bare licensees, or others who come upon them, not by any invi- aThis section is cited in § 949. "Post, § 1228. ^ Post, § 946. iiThis section is cited in §§ 3, 'Post, § 955. 246, 801, 945, 949, 959, 987, 1020, 'Post, § S61, et seq. 1024, 1025, 1055, 1072, 1075, 1171, ' Post, % lOZl, et seq. 1228. 871 1 Thomp. Neg.J care of real property. tation, express or implied, but for their own purposes, their pleasure, or to gratify their curiosity,* however innocent or laudable their pur- pose may be.' § 947. Cases in which this Eule has been Applied.^ — This rule has been applied where a child came upon the defendant's premises, at some distance from the highway, and fell into an uncovered cistern f where the guests of a tenant, occupying a house on the rear end of a lot, instead of using a way which the landlord had opened for their egress through an adjoining lot, — the direct egress being obstructed by some building operations on the front of the lot, — ^undertook to grope their way through such unfinished buildings at night, and ' Hargreaves v. Deacon, 25 Mich. 1; Gautret v. Egerton, L. R. 2 C. P. 371; 36 L. J. (C. P.) 191; 15 Week. Rep. 638; 16 L. T. (N. S.) 17; Stone V. Jackson, 16 C. B. 199; 32 Eng. Law & Eq. 349; Roulston v. Clark, 3 E. D. Smith (N. Y.) 366; Zoebisch V. Tarbell, 10 Allen (Mass.) 385; Frost V. Grand Trunk R. Co., 10 Allen (Mass.) 387; Hounsell v. Smyth, 7 C. B. (N. S.) 731; 6 Jur. (N. S.) 897; 29 L. J. (G. P.) 203; 8 Week. Rep. 227; Bolch v. Smith, 7 Hurl. & N. 736; 8 Jur. (N. S.) 197; 31 L. J. (Bxch.) 201; 10 Week. Rep. 387; 6 L. T. (N. S.) 158; Lar- more v. Crown Point Iron Co., 101 N. Y. 391; s. c. 54 Am. Rep. 718; Ratte V. Dawson, 50 Minn. 450; s. c. 52 N. W. Rep. 965; Stevens v. Nich- ols, 155 Mass. 472; s. c. 15 L. R. A. 459; 29 N. E. Rep. 1150; Sterger v. Van Sicklen, 132 N. Y. 499; s. o. 44 N. Y. St. Rep. 863; 45 Alb. L. J. 494; 30 N. E. Rep. 987; Oyshter- bank v. Gardner, 49 N. Y. Super. 263; Frost v. Eastern R. Co., 64 N. H. 220; s. c. 9 Atl. Rep. 790; 4 N. Eng. Rep. 527; Morgan v. Penn- sylvania R. Co., 19 Blatchf. (U. S.) 239; Reardon v. Thompson, 149 Mass. 267; s. c. 21 N. E. Rep. "369; Trask v. Shotwell, 41 Minn. 66; s. c. 42 N. W. Rep. 699; Cusick v. Adams, 115 N. Y. 55; s. c. 40 Alb. L. J. 48; 23 N. Y. St. Rep. 5^; 21 N. E. Rep. 673 ; Campbell v. LUngsford, 83 Ala. 512; s. c. 3 South. Rep. 522; Schmidt V. Bauer, 80 Cal. 565; s. c. 5 L. R. A. 580; 22 Pac. Rep. 256; Bedell v. Berkey, 76 Mich. 435; s. c. 43 N. W. Rep. 308; Lary v. Columbus &c. R. Co., 78 Ind. 323; s. c. 41 Am. Rep. 572; Lackat v. Lutz, 94 Ky. 287; s. c. 15 Ky. L. Rep. 75; 22 S. W. Rep. 218; Benson v. Baltimore Traction Co., 77 Md. 535; s. c. 26 Atl. Rep. 973; 20 L. R. A. 714; 37 Cent. L. J. 216; Plummer v. Dill, 156 Mass. 426; s. c. 31 N. E. Rep. 128; Johnson v. Ramberg, 49 Minn. 341; s. c. 51 N. W. Rep. 1043; Flan- nigan v. American Glucose Co., 11 N. Y. Supp. 688; 33 N. Y. S. R. 867; Matthews v. Bensel, 51 N. J. L. 30; s. c. 16 Atl. Rep. 195; Woolwine v. Chesapeake &c. R. Co., 36 W. Va. 329; s. c. 15 S. E. Rep. 81; 16 L. R. A. 271; 12 Rail. & Corp. L. J. 21; Evansville &c. R. Co. v. Griffin, 100 Ind. 221; s. c. 50 Am. Rep. 783; El- liott V. Carlson, 54 111. App. 470 (went for his own purposes) ; Shea V. Gurney, 163 Mass. 184; s. c. 39 N. B. Rep. 996; Walsh v. Pltchburg R. Co., 145 N. Y. 301; s. c. 21 L. R, A. 724; 64 N. Y. St. Rep. 711; 39 N E. Rep. 1068; Hutson v. King, 95 Ga. 271; s. c. 22 S. E.,Rep. 615; Ber- lin Mills Co. V. Croteau, 88 Fed. Rep 860; s. c. 50 U. S. App. 419; Casto riano v. Miller, 15 Misc. 254; s. c 71 N. Y. St. Rep. 470; 36 N. Y. Supp 419; Spence v. Grand Trunk R. Co- (Q. B.), 27 Ont. Rep. 303; Clarkin v. Biwabik-Bessemer Co., 65 Minn 483; s. c. 67 N. W. Rep. 1020; Rang- ers V. Toronto Pub. School Bd., 23 Ont. App. 597. 'Kohn V. Lovett, 44 Ga. 251. a This section is cited in § 1026. ' Hargreaves v. Deacon, 25 Mich. 1. 872 INJURIES FROM DEFECTS IN PREMISES. [2(1 Ed. were injured;* where the plaintiff, in going to a fire in an adjoining house, ran through the defendant's store, and fell into an excavation in the yard in the rear;^" where a person coming on the lands of a canal company fell into their canal, which, as was alleged, they "wrongfully and improperly kept and maintained," and was drowned ;^^ and where a woman crossing the defendant's unfenced grounds, as many persons were accustomed to do, in order to make a short cut and avoid an angle in the street, fell into an open and un- guarded vault ;^^ where a person passing over an open tract of land, lying between two highways, fell into an unfenced mine, the court saying that persons thus licensed to cross the ground "must take the permission with its concomitant conditions, and, it may be, perils;"^* and where a workman in a dockyard, having permission to use a water-closet, selected one of several paths leading to it, which led near some unfenced machinery, and, stumbling, caught his arm in the shafting and was injured;^* where a discharged employe went upon the premises of his former employer to seek a renewal of his employ- ment, and was there injured by a machine which had been negligently left out of order ;^° where a mother in search of her children went upon the premises adjoining her own, and was there injured by the breaking of a decayed stairway;^* where a blind man, supposing that he had reached a certain house to which he had intended to go, ascend- • ed some steps belonging to the defendant's warehouse, through a doorway, and fell into a hatchway close to the door;^' where a person crossing the private grounds of a railroad company, fell into an un- protected pit between the tracks and was injured ;^^ where a servant of a customer, receiving goods from the storehouse of the defendant, stepped without invitation into the back door and fell down an ele- vator well and was killed;^* where a trespasser entered an abandoned and decayed railway freight house, and while there was injured by a piece of the building being blown against him in a sudden storm ;^" »Roulston V. Clark, 3 E. D. Smith Y. 499; s. c. 44 N. Y. St. Rep. 863; (N. Y.) 366. 45 Alb. L. J. 494; 30 N. E. Rep. 987. '° Kohn V. Lovett, 44 Ga. 251. " Oyshterbank v. Gardner, 49 N. " Gautret v. Egerton, L. R. 2 C. P. Y. Super. 263. 371. " Morgan v. Pennsylvania R. Co., "Stone v. Jackson, 16 C. B. 199; 19 Blatchf. (U. S.) 239. s. c. 32 Eng. Law & Eq. 349. " Trask v. Shotwell, 41 Minn. 66; "Hounsell v. Smyth, 7 C. B. (N. s. c. 42 N. W. Rep. 699. This case S.) 731. seems to have been erroneously de- "Bolch V. Smith, 7 Hurl. & N. cided. Upon the facts stated, there 736. seems to have been an implied invi- '"Larmore v. Crown Point Iron tatipn to the man to step inside, if Co., 101 N. Y. 391; s. c. 54 Am. Rep. he should deem it necessary or 718. proper in the discharge of his duties. " Sterger v. Van Sicklen, 132 N. "> Lary v. Cleveland &c. R. Co., 78 Ind. 323; s. c. 41 Am. Rep. 572. 873 1 Thomp. Neg.j care of keal property. where a person came to the place of business of the defendant to no- tify his superintendent that a certain employ^ could not come to work that day by reason of the death of his child, and he was directed to go into a small room where a person could be found who would convey the message to the defendant, and, while attempting to do so, his leg was caught in an opening that had been negligently left in the prem- ises, and was crushed by a large revolving wheel ;^^ where a class of students, upon request, had received permission to inspect a power- house, and while so doing one of them fell into an uncovered vat of boiling water ;^^ and where a mill-owner ran cars employed in carry- ing off refuse from the basement of his mill without brakemen, and a person w.ent into the basement on an errand of his own, and was hurt by getting in front of one of the cars.^^ § 948. The Rule Re-stated as to Trespassers. — It will be recalled that the general rule applicable to trespassers is that the proprietor upon whose land the trespasser enters, is under no duty towards the trespasser, except that of refraining from wantonly or recMessly in- juring him, after discovering his trespass or his peril. ^* It was so held where a person went upon the grounds of a railroad company, im- pelled by curiosity, to witness the burning of a derailed train con- taining oil tanks, and was injured by the explosion of a tank in the neighborhood of which he was working at the suggestion of one hav- ing no connection with the company, in assisting in removing adja- cent structures to prevent the spread of the fire.^^ § 949. Who are Trespassers or Bare Licensees within this Rule — Who not. — The position of bare licensees within the meaning of the rule stated in preceding paragraphs,^" has been ascribed to a ten- ant remaining in the occupancy of the premises after the expiration of his term, although detained by the inclemency of the weather, sick- ness, or poverty, — the owner of the premises having notified the ten- ant that he remained at his own risk. Therefore, the owner owed ^'Lackat v. Lutz, 94 Ky. 287; s. c. "^ Ante, § 246; Barney v. Hannibal 15 Ky. L. Rep. 75; 22 S. W. Rep. &c. R. Co., 126 Mo. 372; s. o. 26 218. This case seems to have been L. R. A. 847; 28 S. W. Rep. 1069; erroneously decided. The facts O'Leary v. Brooks Elevator Co., 7 seem to raise an implied invitation N. D. 554; s. c. 75 N. W. Rep. 919; to go where he went'. 41 L. R. A. 677; Cleveland &c. R. " Benson v. Baltimore Traction Co. v. Ballentine, 84 Fed. Rep. 935 ; Co., 77 Md. 535; s. c. 20 L. R. A. s. c. 56 U. S. App. 266; 28 C. C. A. 714; 37 Cent. L. J. 216; 26 Atl. Rep. 572. 973. ^= Cleveland &c. R. Co. v. Ballen- '^^ Berlin Mills Co. v. Croteau, 88 tine, 84 Fed. Rep. 935; s. c. 56 U. Fed Rep. 860; s. c. 50 U. S. App. S. App. 266; 28 C. C. A. 572. 419. • ^Ante, §§ 945, 946. 874 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. no special duty to the tenant so remaining in the management of ex- plosives stored on the premises.^' The same status was ascribed to one who attempted to post a letter on a railway train, which had just commenced to move out of the station, through an opening in a door- way provided by the Post-Office Department for the use of the public, and was hurt in so doing by tripping upon a stake projecting from the ground.^* But a workman employed by one oi two adjoining land-owners, who is working in a lane between their respective properties, and is there injured through the negligence of an employe of the other land-owner, in allowing a brick to fall from a building in process of erection, is not a trespasser or a bare licensee within the foregoing rule, although the lane may not yet have been formally de- clared common, but is about to be so declared. ^^ So, where a lessor made an oral agreement with his lessee that certain articles should be excepted from the lease, and should be removed from the premises, and a person, brought upon the premises by the agent of the lessor to have the articles pointed out, was injured through the explosion of certain dangeroHs chemicals negligently left upon the premises by such agent, — it was held that the lessor was liable ; nor was the person injured put into the category of trespassers or bare licensees from the fact that the permission was oral, the lessee not disputing its valid- ity.^" A person employed to remove furniture from a storage ware- house who, after carrying out a certain article to the street, brings it back under instructions of the proprietor, to leave it until he comes for another lot, and who, in executing the instruction, falls through an open trap-door of which he has no knowledge, — is not a trespasser or bare licensee, but is there by invitation and has an action against the proprietor for his injuries.^ ^ § 950. Exposing on Open Grounds Artificial Objects Peculiarly Dangerous. — There is a class of decisions holding that it is action- able negligence for the owner of grounds, over which people are ac- customed to pass, to expose thereon anything which is peculiarly dan- gerous. These decisions proceed on the ground that such conduct is a wanton violation of the obligations which, in a state of society, every individual holds to every other. Upon this principle a railroad company has been held liable in damages for the act of its employes in leaving on premises, over which the public were accustomed to pass, " Clarkin v. Biwabik-Bessemer ™ Graham v. Smith, Rap. Jud. Co., 65 Minn. 483; s. c. 67 N. W. Rep. Quebec, 12 C. S. 240. 1020. ™ Baker v. Tibbetts, 162 Mass. ^Spence v. Grand Trunk R. Co. 468; s. c. 39 N. E. Rep. 350. (Q. B.), 27 Ont. Rep. 303. =i Wilson v. Olano, 28 App. Div. 448; s. c. 51 N. Y. Supp. 109. 875 1 Thomp. Neg.J care of real property. some dynamite torpedoes used in signaling trains, whereby children taking them up and playing with them, without warning of the dan- ger, were injured."^ This is not a negation of the doctrine that the owner of a private building being erected on a private lot owes no duty to trespassers and idlers, or persons visiting the premises merely for their individual benefit or for curiosity, other than that he shall inflict upon them no willful or wanton injury;'^ since exposing a substance so dangerous in a place where it is liable to tempt inexperienced young children to their hurt may well be regarded as inflicting upon them a wanton injury.^* On the one hand, the sound view seems to be that the owner or occupier of real property may become liable, on the footing of negligence, to persons who are injured in their persons or their property, through the needless, wanton, or grossly negligent act of exposing other dangerous things upon his premises or upon the highway adjacent thereto, attracting children or animals or endanger- ing the safety of the unwary. It was so held where the defendant ex- posed a barrel of fish brine on a public street of which his neighbor's cow drank and was killed, although the brine was emptied out by the act of a third person.^^ On the other hand, it is said that land-owners may of right erect upon their own land, for lawful purposes^, machines and contrivances which will be more or less dangerous to persons com- ing upon the land, and they do not thereby make themselves liable to mere trespassers or bare licensees; though in some cases they may be held bound, as a mere social duty, to give suitable warning of the dan- ger. The general rule remains that a trespasser or mere licensee, who is injured by a dangerous machine or contrivance on the land of an- other, can not recover damages, unless the machine or contrivance is such as an owner may not lawfully erect, or unless the injury was inflicted willfully, wantonly, or through the gross negligence of the owner or occupant of the premises.** § 951. leaving Premises Dangerous, Contrary to the Prohibition of Statutes. — Where a statute or valid municipal ordinance, enacted with a view to the public safety, requires the owners or occupiers of real property to take certain precautions with a view to the public ''Harriman v. Pittsburgh &c. R. Carter v. Columbia &c. R. Co., 19 Co., 45 Ohio St. 11; s. c. 12 N. E. Rep. S. C. 20; s. c. 45 Am. Rep. 754. 451; 9 West. Rep. 443. Otherwise =" Campbell v. Lunsford, 83 Ala. where a traveller, walking along a 512; s. c. 3 South. Rep. 522. railroad track, where he has no ^ Post, § 1031, et seg. right to be, picks up a torpedo »' Henry v. Dennis, 93 Ind. 452 ; which has been left on the track s. c. 47 Am. Rep. 378. to signal a train, and while hand- "Galveston Oil Co. v. Morton, 70 ling it, gets killed by its exploding: Tex. 400; s. c. 8 Am. St. Rep. 611; 7 S. W. Rep. 756. 876 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. safety, such as to enclose dangerous holes upon their premises with fences to prevent persons or animals from falling into them, the vio- lation of such a statute or ordinance will be, in the view of most courts, negligence per se,^'' leaving only two remaining questions to be de- cided: 1. Whether the neglecting of the provisions of the statute was the proximate cause of the injury. 2. Whether the right of action on the part of the injured person was not barred by his own contributory negligence. For example, it has been held that a failure to comply with a statute requiring threshing machines to be guarded, does not give a cause of action to a trespassing child injured by such a ma- chine ;^^ a decision which in effect repeals the statute, since one of the very objects of it must have been to protect careless children, who, in a technical sense, are trespassers. In like manner, another court has held that the failure of the owner of premises to enclose a dangerous hole thereon, so as to prevent persons from falling in it, as required by a city ordinance, while being negligence per se, yet does not render the proprietor liable for an injury to one who voluntarily runs into the hole and is burned by a smouldering fire therein.^® § 952. Injuries to Trespassers, Licensees, etc., upon Vessels. — The owner of a vessel occupies in respect of the question under considera- tion in this chapter, a position analogous to that of the owner of real property : he is under no duty to make his ships safe for the protec- tion of trespassers, intruders, volunteers, hare licensees, idlers, or other persons who come upon it without his invitation, express or im- plied.*" This rule has been applied where the mate of a boat, who had been for a day or two in the habit of going over the defendant's boat to get to his own boat, while making the attempt at night, fell down the hatchway of the defendant's boat, and was injured.*^ And also where a laborer, employed to load ice on a vessel, after his day's work was done, went on board from mere curiosity, and was injured in a similar manner.*^ Where vessels are obliged to moor at a landing place outside of other vessels, persons on the external vessel have an implied license to cross the deck of the internal one, for the purpose of reaching the shore and reaching the external vessel from the shore ; yet this does not impose any special duty on the part of the owner of the interior vessel to provide for their safety. This is especially true where "Ante, § 10. Compare ante, § 12. "Baker v. Byrne, 58 Barb. (N. ■"Smith V. Hayes, 29 Ont. Rep. Y.) 438. 283. "Severy v. Nickerson, 120 Mass. ''Butz V. Cavanah, 137 Mo. 503; 306. See also Metcalf v. Cunard S. s. c. 38 S. W. Rep. 1104. S. Co., 147 Mass. 66; s. c. 6 N. Eng. "Baker v. Byrne, 58 Barb. (N. Rep. 309; 16 N. E. Rep. 701. Y.) 438. 877 1 Thomp. Neg.J cahe of keal property. the person so using the intervening vessel as a passage-way, selects an unusual and unprovided way,*^ — instead of going around on a level deck, steps upon the covers of a hatch and falls through, — in which case the ship-owner is not answerable in damages.** So, where a carpenter employed on the upper deck of a ship, having left his tools below over night, went to get them, and, while on this errand, fell into a bunker hole and sustained injuries, — it was held that the ship- owner was not liable, because the carpenter had gone there without invitation and for his own purposes.*^ Proceeding upon this princi- ple, there are cases holding that the ship-owner is not obliged to close the hatches of his ship at night so as to protect trespassers from in- jury.*" But this principle seems to have been carried too far in a case where it was held that a ship-owner is under no duty to keep the hatches of his vessel in a reasonably safe condition for the protection of men lawfully coming on board to perform labor. *^ So it seems that a ship-owner is under no duty to keep the hatches of his ship closed for the protection of stevedores while the ship is being loaded, or to supply lights to prevent them from falling into the hatches where the existence of the open hatches is fully Icnown to tJiem.*^ But the ship-owner is not liable to one who is injured by a latent defect not discoverable by the exercise of ordinary care, — as a defect in an eye- bolt which was counter-sunk in the deck so that the eye-bolt being below the floor could not be seen, which rendered the defect latent. *° § 953. Cases where the Ship-owner has been held liable. — On the other hand, the owners of vessels have been held liable for injuries through pit-falls and other defects in their vessels under the following circumstances: — Where a boiler-cleaner was thrown from a ladder leading into the stoke-hole and injured, because of the ladder being in a defective and unsafe condition through the absence of the usual fastening on one side of its top;^" where a libellant (presumably a sailor) stepped into a snarl in the "fall''^^ of a winch on the deck, "Post, § 990, et seq. not by going on vessels, but where "Anderson v. Scully, 31 Fed. Rep. the same principle was applied. 161. "Dwyer v. National Steamship «=Belford v. Canada Shipping Co., Co., 17 Blatchf. (U. S.) 472. 35 Hun CN. Y.) 347. «The Jersey City, 46 Fed. Rep. " Severy v. Nickerson, 120 Mass. 134. 306; Dwyer v. National Steamship ^" The Flower Gate, 31 Fed. Rep. Co., 17 Blatchf. (U. S.) 473. See 762. also Zcfibisch v. Tarbell, 10 Allen ^'' The Cyprus, 55 Fed. Rep. 332. (Mass.) 385, and Murray v. McLean, "The "fall" of a winch is the part 57 111. 378, where persons were in- of the tackle to which the power Is jured by going on factory premises, applied for the purpose of hoisting articles on the deck. 878 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. and was drawn into the winch and injured by reason of the fact that it was dark and there was no light near the winch ;°^ where a rounds- man whose duty it was to see that the night inspectors were at their posts, went aboard a vessel and fell across an open hatch which led to the coal bunkers, in a narrow and dark passage-way. °* Article II. Extent of Obligation as to Straying or Trespassing Animals. Section 955. No obligation to keep one's premises safe for the bene- fit of the owner of domestic animals. 956. Illustrations of this rule as to animals. 957. Jurisdictions in which the rule as to animals does not ob- tain in respect to pit-falls ar- tificially constructed. 958. Exceptions to the rule as to animals. Section 959. No obligation to fence for the protection of animals roam- ing on the highway. 960. Injuries to animals caused by failing to maintain fences in compliance with statutes. 961. Injuries to animals from barbed wire fences. 962. Injuries to animals from barbed wire partition fences. § 955. No Obligation to Keep One's Premises Safe for the Benefit of the Owner of Domestic Animals.^ — The same rule, subject to quali- fications, applies in the case of injuries to domestic animals through pit-falls or other dangers upon uninclosed grounds. That rule is that the owner or occupier of land is under no legal obligation to take special care or pains to the end of keeping it safe for the protection of the animals of others which may be allowed to run at large, — and this without reference to the question whether the rule of the English common law prevails, which requires the owners of domestic animals to restrain them at their peril, or whether the rule of most of the American States prevails, which allows domestic animals to run at large, and requires the owners of cultivated fields to fence them.^* "''The Manhanset, 53 Fed. Rep. 843. =' The Guillermo, 26 Fed. Rep. 921. That the proprietor of an elevator who undertakes to unload a vessel is under an implied obligation to keep the machinery used by him in a reasonably safe condition so as not to injure seamen engaged on the vessel, — see Minor v. Clark, 28 N. Y. St. Rep. 184; s. c. 8 N. Y. Supp. 616. Ship owner liable for an in- jury to one rightfully on the bulk- head, caused by the falling of a heavy iron pipe improperly piled: Dunn V. Ballantyne, 5 App. Div. (N. Y.) 483; s. c. 38 N. Y. Supp. 1102. a This section is cited in § 945. "Christy v. Hughes, 24 Mo. App. 275; Turner v. Thomas, 71 Mo. 596; Sybray v. White, 1 Mee. & W. 435; s. c. Tyrw. & G. 746; 5 L. J. (Exch.) 173; Bush v. Brainard, 1 Cow. (N. Y.) 78; Knight v. Abert, 6 Pa. St. 472; Hughes v. Hannibal &c. R. Co., 66 Mo. 325; s. c. 6 Cent. L. J. 338; Illinois &c. R. Co. v. Carraher, 47 111. 333; Union Pacific R. Co. v. 879 1 Thomp. Neg.] care of real property. The English law rested the rule upon the proposition that the owner of domestic animals had no right to allow them to stray upon open grounds, and that if he did so, he did so at his peril. This may be illustrated by an old ease : the defendant had dug a pit in a common, into which the plaintiff's mare fell and was killed. By the common law, it was the duty of the owner of animals to fence them in, and not the duty of the owner of lands to fence them out.°° It was there- fore adjudged that an action did not lie; "for when the mare was straying and he (the owner) shows not any right why his mare should be in the common, the digging of the pit is lawful against him ; and although his mare fell therein, he hath not any remedy, for it is damnum absque injuria."^' § 956. Illustrations of this Rule as to Animals. — Thus, A.'s cow strayed into B.'s uninclosed wood, and there drank maple sap which B. had left exposed in troughs, and died. B. was not liable to A.°^ A. kept in open vessels on his land near the highway quantities of fish, fish-brine, pickles, pickle-brine, and other corrosive substances. B.'s oxen drank of them and died. A. was not liable to B.^* But where A. kept on his open grounds near the highway, without notice, certain traps baited with stinking meat, for the purpose of catching his neigh- bor's dogs, and B.'s dog, attracted by his natural instinct, ran into one of the traps and was killed, A. was held liable to B.^^ A railway company left a well near one of its depots, on unfenced grounds, cov- ered with some planks. The consignee of a carload of lumber hitched his horse to it, to haul it to a more convenient place for unloading. The horse baulked, got entangled in its traces, backed off the track, and in its struggles got into the well and was killed. A judgment for damages was reversed. "" In taking care to use his own property so as not to injure his neighbor, one is not bound to look beyond the natural and probable consequences of the act he is about to perform. Thus, if a man, in clearing his uninclosed land of timber, in a new country, sets a tree on fire, and then leaves it to burn down and fall, he will not be liable to pay damages if it fall on his neighbor's horse, happening Rollins, 5 Kan. 167; Caulkins v. »'AMie, § 839. Matthews, 5 Kan. 191; Maltby v. ""Blyth v. Topham, Cro. Jac. 158; Dihel, 5 Kan. 430; Tonawanda R. 1 Roll. Abr. 88. Co. V. Hunger, 5 Denio (N. Y.) 255; "Bush v. Brainard, 1 Cow. (N. 4 N. Y. 349; Hess v. Lupton, 7 Ohio Y.) 78. 216; Aurora &c. R. Co. v. Grimes, 13 "'Hess v. Lupton, 7 Ohio 216. Ill 587; Leseman v. South Carolina '"' Townsend v. Wathen, 9 East R. Co., 4 Rich. L. (S. C.) 413; Dur. 277. ham V. Musselman, 2 Blackf. (Ind.) »» Aurora &c. R. Co. v. Grimes, 13 96. Contra, Young v. Harvey, 16 111. 585. Ind. 314. 880 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. to stray there. °^ The plaintiff's hogs, lawfully running at large, were in the habit of sleeping under the defendant's building. The defend- ant negligently overloaded the floor, in consequence of which it broke down, killing the hogs. It was held that the defendant was not liable.*^ § 957. Jurisdictions in which the Bule as to Animals does not Obtain in Respect to Pit-falls Artificially Constructed. — In the West- em 'States, where the owners of lands are not required, as at common law, to fence in their cattle, but where cattle may lawfully run upon uninclosed land, and where the proprietors of land, desiring to re- strain cattle from ranging thereon, must fence them out with such a fence as will, in the language of farmers, "stand the law," — that is, satisfy the governing statute, — the reason for the foregoing rule would not seem to hold with the same force as where the common-law rule in regard to fencing prevails. Accordingly, we find a number of de- cisions in the Western and Southern States which concede that, under the rule which allows cattle to run at large and which requires land- owners to fence, a man who artificially digs a pit upon his land and leaves it unfenced so that domestic animals lawfully ranging thereon, are liable to fall into it, must pay damages if his neighbor's animal does fall into it and is killed. It was so held where a land-owner dug a well on his uninclosed land, near a highway, and left it unguarded, into which his neighbor's cow fell and was killed;*^ and so where a gas-light company excavated a trench in a highway and left it un- guarded, into which the plaintiff *s cow fell.^* In such a case it has " Durham v. Musselman, 2 ly notice, or the like. In such a Blacljf. (Ind.) 96. It is a familiar case a judgment was reversed — just rule of law, alike applicable to civil why, is not clearly perceived — be-, and criminal cases, that where sev- cause the judge, in charging the eral persons are engaged in a com- jury, in characterizing the negll- mon unlawful object, and one of gence which would make the defend- them, acting in pursuance of the ants liable, declined to make use of common unlawful purpose, inflicts the word "gross:" Richards v. an injury, albeit accidentally, upon Sperry, 2 Wis. 216. a third person, such third person "Christy v. Hughes, 24 Mo. App. may recover damages jointly of all. 275. We shall see this rule applied where "Jones v. Nichols, 46 Ark. 207; the injury was done by one of sev- s. c. 55 Am. Rep. 575. So, where, eral persons, while engaged in play- under similar circumstances, a ing a dangerous game on a public horse fell into a well: Haughey v. highway. But felling large trees is Hart, 62 Iowa 96; s. c. 49 Am. Rep. not an unlawful employment; and 138. So held, on much the same when several neighbors meet to- facts, in Young v. Harvey, 16 Ind. gether for this purpose, and the 314. Compare Durham v. Mussel- property of one of them is injured man. 2 Blackf. (Ind.) 96. by the falling of a tree, only those " Noblesville Gas &c. Co. v. Teter, engaged in felling it will be respon- 1 Ind. App. 322; s. c. 27 N. E. Rep. sible, and they only for the want of 635. ordinary care in failing to give time- VOL. 1 THOilP. KEG. — 56 OOl. 1 Thomp. Neg.J care of real property. been reasoned that the question of the liability of the land-owner in leaving exposed a pit so artificially dug, will depend upon the degree of probability of danger, taken in connection with the usefulness of the act which he has done. If the probability is so strong as to make it the duty of the land-owner, as a member of the community, to guard the community from the danger to which the pit exposes its members, in person or property, he is liable to an action for a loss occurring through his neglect to perform that duty.®° § 958. Exceptions to the Eule as to Animals. — The rule is so plain that it will not be made clearer by further illustration ; but there are some exceptions to it that should be noticed. A coterminous proprietor has been held liable for the death of his neighbor's horse by reason of permitting a yew tree to stand so that the animal might eat of the pois- onous leaves on the branches projecting over the dividing fence.*' Another such occupant of land suffered his wire fence to fall into decay, so that pieces of the wire fell into the grass on his neighbor's side, and his neighbor's cow having eaten pieces with the grass, died. For this he was compelled to pay damages.*'' It has been held in Eng- land that the owner of a mine is under a legal obligation, independent of contract, to fence Ms shaft so that the cattle of the owner of the surface may not fall into it.*^ This doctrine was taken for granted by all parties in the previous case of Syhray v. White.'^ § 959. No Obligation to Fence for the Protection of Animals Roam- ing on the Highway. — Where domestic animals are allowed to run at large, and they stray upon uninclosed lands and are injured, the owner of the lands can not be held liable therefor.''° A land-owner is no more obliged to prepare his land in any particular way for the pro- tection of his neighbor's cattle, not invited or tempted to come upon it, than for the protection of his neighbor himself.''^ For example, a land-owner is under no obligation to fence his land bordering on the highway, or to keep up such fences or the gates in them, so as to pre- »= Young V. Harvey, 16 Ind. 314. ™1 Mee. & W. 435; Tyrw. & G. Compare Durham v. Musselman, 2 746; 5 L. J. (Exch.) 173. Blackf. (Ind.) 96. ™ Morrison v. Cornelius, 63 N. C. ™Crowhurst v. Amersham Burial 346; Illinois &c. R. Co. v. Carraher, Board, 4 Bxch. Div. 5; s. c. 27 Week. 47 111. 333; Headen v. Rust, 39 111. Rep. 95; 7 Cent. L. J. 465; 18 Alb. 186; Hughes v. Hannibal &c. R. Co., L. J. 514. 66 Mo. 325; Turner v. Thomas, 71 «' Firth V. Bowling Iron Co., 3 C. Mo. 596 ; Knight v. Abert, 6 Pa. St. P. Div. 254; s. c. 26 Week. Rep. 472. But see Jones v. Nichols, 46 553; 6 Cent. L. J. 421; 18 Alb. L. J. Ark. 207. 16. ''^Post, § 946. "= Williams v. Groucott, 4 Best & S. 149; 32 L. J. (Q. B.) 237. 882 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. vent the animals of another, which are allowed to run at large upon the highway, from getting through his land upon a railway track and there being killed.'^ § 960. Injuries to Animals Caused by Failing to Maintain Fences in Compliance with Statutes. — In a jurisdiction where the common- law rule does not obtain, but where^cattle are permitted to run at large, the owner taking his chances of their being injured while ranging upon the unfenced premises of other persons, in the absence of some statute clothing them with a special protection, — a so-called "fencing law," that is to say, a statute requiring the owner of a cultivated field to inclose it with what is called a "lawful fence," that is to say, with a fence of a given description, — has been held to have been enacted for the protection of persons whose cattle are running at large, against liability to damages for their trespassing on the crops of others, and not for the protection of the cattle against any injuries which they may receive from eating the crops.^' Such a statute has been held not to be applicable to a case where a mule, travelling the highway, is killed by rolling upon the wire of a barbed wire fence, built four feet outside the highway, the lower wire of which is negligently al- lowed to sag near the ground; but in such a case there may be a lia- bility under the principles of the common law.'* Nor io an adjoin- ing land-owner, who has failed to maintain a division-fence, in com- pliance with a statute, liable for the death of a colt, belonging to the other adjoining land-owner, which strays across the division line from the pasture of the other, and falls into a narrow depression or hole, and there, unable to get up, struggles until it dies ; since in such a case the failure to build the division-fence is not deemed the proximate cause of the death of the colt.'° § 961. Injuries to Animals from Barbed Wire Fences.'i — The use of barbed wire as a fencing material has become so general in the agri- cultural districts that it is scarcely to be held, as matter of law, that a barbed wire fence, although built along the margin of a public high- way, is a public nuisance. Such is not the doctrine of the courts, though the decisions agree that a person erecting such a fence may become liable for any damages happening to persons or animals in consequence of its negligent construction.'^ Nor is it material that "Oeflein v. Zautcke, 92 Wis. 176; "Pales v. Cole, 153 Mass. 322; s. s. c. 66 N. W. Rep. 108. c. 26 N. B. Rep. 872. " Fennell v. Seguin St. R. Co., 70 a This section is cited in § 909. Tex. 670; s. c. 8 S. W. Rep. 486. ™ Sisk v. Crump, 112 Ind. 504; s. c. "Foster V. Swope, 41 Mo. App. 15 N. B. Rep. 381; 12 West. Rep. 137. 134; Hurd v. Lacy, 93 Ala. 427; 883 1 Thomp. Neg.] care of real property. the fence was not on the actual margin of the highway, but was with- drawn therefrom so as to stand entirely upon the adjacent land of the person who has built it.''' The test of liability of one who constructs and maintains a barbed wire fence adjoining a public highway, is to consider whether a prudent husbandman would erect that kind of a fence at such a place ; and it will be for a jury to say whether one erect- ing such a fence at such a place will not be liable for the value of an animal killed by getting upon it.'^ Moreover, in States where the law is such that the owners of stock have a right to permit them to run at large upon uninclosed lands, the proprietors of lands, although not adjoining the highway, have no right to erect barbed wire fences thereon in such a manner as to become in the nature of traps for the destruction of straying animals. Such a land-owner, it has been well reasoned, "may be under no duty to guard them from the dangers to which they may be exposed in consequence of the natural features of the land, such as ditches, holes, decayed trees liable to fall, etc. Nor would he be liable for an injury to an animal caused by a fence built in the usual way. If, however, a fence or other erection is so negli- gently maintained on the land as to be in effect a trap to passing ani- mals; if the injury to animals is the natural or probable consequence of the act, and such as any prudent man must have foreseen, — ^then, in the event of such injury, the land-owner is liable in damages there- for.'"* The fact that a colt is injured by running against a barbed wire fence along the land of a railroad, when frightened off the track by the whistling of an approaching train, does not make the company liable, although the colt got upon the track through a defect in the fence, it being, however, at a place where the company was not re- quired by statute to fence its track.*" The erection of a barbed wire s. c. 9 Soutli. Rep. 378; Loveland v. Brown v. Cooper, 10 Tex. Civ. App. Gardner, 79 Cal. 317; s. c. 21 Pac. 512; s. c. 31 S. W. Rep. 36. Rep. 766; 4 L. R. A. 395. Upon the '" Hurd v. Lacy, 93 Ala. 427; s. c. general subject of the right to set 9 South. Rep. 378, opinion of the traps or dangerous Instruments for court by Walker, J. In this case it the protection of property or per- was held that the owner of a town sons, see State v. Moore, 31 Conn, lot enclosed by a single barbed wire 479 ; s. c. 83 Am. Dec. 159, and note four feet from the ground and loose- 166; -post, § 964, et seq. ly hung from posts thirty or forty " Loveland v. Gardner, 79 Cal. feet apart, is liable under the Ala- 317; s. c. 21 Pac. Rep. 766; 4 L. R. A. bama Laws, which permit cattle to 395. run at large, without liability of the "Foster v. Swope, 41 Mo. App. owner for trespasses committed by 137. That a person erecting a barbed them, for injuries by such wire to wire fence around land, across an animal attempting to get upon which runs a trail over which cattle his lot: Hurd v. Lacy, 93 Ala. 427; have been in the habit of roaming, s. c. 9 South. Rep. 378. must exercise ordinary prudence so *■ St. Louis &c. R. Co. v. Fergu- to construct the fence that it will son, 57 Ark. 16; s. c. 20 S. W. Rep. not be dangerous to cattle attempt- 545; 18 L. R. A. 110. ing to use the trail as before, — seie 884 INJURIES FROM DEFECTS IN PREMISES. [2(1 Ed. fence near a private road, though, it be not such a fence as is pre- scribed by statute, is not such an act of negligence as will render the owner liable for injuries therefrom to trespassers or bare licensees; but they take the premises as they find them.*^ § 962. Injuries to Animals from Barbed Wire Partition Fences.* — Again, if such a fence is erected as a boundary-fence between two co- terminus proprietors, and the animal of one of them gets upon it and is killed, it will be a question for the jury whether the plaintiff was guilty of contributory negligence in turning his animal loose in his field bordered by such a fence.*^ In such a case it has been held that the negligence of the plaintiff in failing to maintain his portion of the division-fence becomes immaterial, where the plaintiff's animal is killed by reason of being driven upon the defendant's barbed wire fence, when the animal had got into the defendant's inclosure.^* If one of two coterminous land-owners constructs a partition-fence of barbed wire in such a negligent manner that the wires sink down and swing loosely on the posts, leaving a space two feet apart, through and over which horses can put their heads, he may become liable for the death of a horse by becoming entangled therein while attempting to cross over it.^* And if such proprietor, while lawfully building his part of a partition-fence, negligently allows barbed wire to remain lying on the ground, without protecting the animals in adjoining fields from it, and, in consequence of its being so left, such animals are injured, he will be liable to their owner, in the absence of contribu- tory negligence. *° Article III. Setting Dangerous Machines for Defense op Property. Section Section 964. Spring-guns and other instru- 966. American decisions on this sub- ments of destruction for the ject. defense of property. 967. Setting such instruments of de- 965. Decisions under the English struction to protect property statute on this subject. from felonious depredations. ^ Worthington v. Wade, 82 Tex. a This section is cited in § 909. 26; s. c. 17 S. W. Rep. 520. The con- »"Boyd v. Burkett (Tex. Civ. struction of the Texas statute of App.), 27 S. W. Rep. 223 (not off. April 18, 1879, relating to barbed rep.). wire fences, was that the act was *■ Bullard v. Mulligan, 69 Iowa merely intended to prescribe such a 416. fence as would enable land-owners " McFarland v. Swihart, 11 Ind. to enforce certain remedies against App. 175; s. c. 2 Ohio Leg. News the owners of trespassing animals, 112; 27 Chicago Leg. News 120; 38 and not to prohibit any other kind N. E. Rep. 483. of fences: Davis v. Davis, 70 Tex. ''Lowe v. Guard, 11 Ind. App. 123; reaffirmed in Worthington v. 472; s. c. 39 N. B. Rep. 428.. Wade, supra. 885 1 Thomp. Neg.] care of real property. § 964. Spring-guns and Other Instruments of Destruction for the Defense of Property.^ — The right of the owner of property to protect his possessions by such means was first discussed in the ease of Deane V. Clayton,^^ decided in the year 1817. The defendant, to preserve the hares in his wood from destruction by dogs and foxes, kept iron spikes fastened into several trees therein, each spike having two sharp ends, and so placed that each end should point along the course of a hare-path, and fixed at such a height as to allow the hares to pass un- derneath in safety, but so as to impale any pursuing dog or fox. The defendant had posted notices at several places on the verge of the woods, warning the public that such instruments of destruction were set therein. The plaintiff, while sporting on these premises without the defendant's permission, lost a valuable pointer dog, which came in contact with one of these spikes while chasing a hare which it had started up. In an action on the case to recover compensation for the loss of the dog, the Court of Common Pleas were equally divided as to whether the action was maintainable. The decision of this question was deferred until the case of Ilott v. Wilkes came up for considera- tion in the King's Bench, three years later. ^^ This case differed from the preceding in the important particular that the plaintiff himself, while trespassing upon the defendant's premises, came in contact with a wire connected with a spring-gun, which was thereby discharged and injured him severely. The jury found that the plaintiff, before he entered the premises in question, knew that engines like that by which he suffered were placed there. A rule nisi for entering a nonsuit having been obtained, it was made absolute. The court considered that this was a proper case for the application of the maxim Volenti non fit injuria. In both of the above cases it will be observed that the plaintiff had notice of the existence of the presence of the instruments which worked him injury; and in both cases the judges were agreed that, had there been no notice, the plaintiff would be entitled to recover, and that without notice it would not be lawful to expose even a trespasser to mortal injury. Accordingly, in a case which differed from tfee foregoing in this particular, that the defendant, without notice to the public, set a spring-gun in a walled garden, at a distance from his house, and the plaintiff, having climbed over the wall in pursuit of a stray fowl, was shot by its discharge, the defend- ant was held liable to respond in damages.'* This conclusion was reached independently of a statute applicable to this case, which will be presently noticed. So, in Jay v. Whitfield,^'' the plaintiff, having aTWs section is cited in § 961. "Bird v. Holbrook, 4 Bing. 628. s"? Taun. 489; 1 J. B. Moo.; 2 »»MS., cited in 3 Barn. & Aid. 308, Marsh. 577. and 4 Biiig. 644. " 3 Barn. & Aid. 304. 886 INJUKIES FROM DEFECTS IN PEEMISES. [2d Ed, entered the defendant's premises for the purpose of cutting a stick, was injured by the discharge of a spring-gun, and, in an action for damages, was held entitled to recover ; but whether or not notice had been given, in this ease, of the presence of the gun in such position, does not appear. In another case, the defendant caused traps, baited with strongly-scented meats, to be set upon his premises, and so near to the premises of the plaintiff as to attract the instinct of his dogs, and draw them thither to their destruction. Lord Ellenborough held that the defendant's conduct was unjustifiable. He saw no difference between such acts and the catching of dogs and putting them into the traps by manual force.^" § 965. Decisions under the English Statute on this Subject. — It would seem that the adjudication in the case of Ilott v. Wilhes^'^ at- tracted the attention of Parliament to the importance of defining the rights of property owners and the general public in cases of this kind. Accordingly a statute"^ was passed to this end. This statute has been construed in a manner unfavorable to the owners of trespassing dogs. Thus, in Jordin v. Crump, decided in the Court of Exchequer in 1841,°^ Alderson, B., ruled that the owner of a dog which was im- paled upon a spear, fixed upon premises as before described, was not entitled to recover damages, he having had express notice that dog- spears were set upon the premises. He added that the decision of the court would still be in favor of the defendant, even if the plaintiff had not notice, as in the present ease, on the ground that the setting of a dog-spear was not per se an illegal act, nor rendered such by the statute.^* Furthermore, he considered as open to question the cor- " Townsend v. Wathen, 9 East engine as aforesaid, shall be guilty 277. of a misdemeanor." By subsequent " 3 Barn. & Aid. 304. provisions of the same statute, wbo- "^ 7 & 8 Geo. IV., c. 18, § 1, provid- ever shall knowingly or willfully ing that, "Whereas it is expedient permit such traps to be set or re- to prohibit the setting of spring main set upon his premises, shall La guns and mantraps, and other en- deemed to have set them himself; gines calculated to destroy human provided, however, that this act life or inflict grievous bodily harm; shall not apply to traps set to de- be it therefore enacted^ stroy vermin, nor to engines set if any person shall set or place, or from sunset to sunrise in dwelling- cause to be set or placed, any spring houses, for the protection of the gun, mantrap, or other engine cal- same. This statute is substantially culated to destroy human life or in- re-enacted in 24 & 25 Vict, c. 100, flict grievous bodily harm, with the § 31, in which the penalty for in- intent that the same, or whereby fringement of its provisions is a the same, may destroy or inflict term of five years of penal servi- grievous bodily harm upon a tres- tude, or imprisonment not exceed- passer or other person coming in ing two years, without hard labor, contact therewith, the person so "^ 8 Mees. & W. 782. setting or placing, or causing to be " 7 & 8 Geo. IV., c. 18. so set or placed, such gun, trap, or 887 1 Thomp. Neg.] care of keal property. reetness of the position of the Court of Common Pleas in Bird v. Hol- hrook,^^ that, independently of the statute/" the setting of spring- guns, without a notice, was an unlawful act. Neither is a more favor- able construction put upon this statute in respect of personal injuries suffered by individuals. In Wooton v. DawTcins,^'' the plaintiff en- tered the defendant's garden at night, and without permission, to search for a stray fowl. While there, he came in contact with a wire, which caused something to explode with a loud noise, knocking him down, and slightly injuring his face and eyes. The plaintiff was non- suited, the court holding that at common law the defendant was not liable for this injury ; that, under the statute, it was not enough that the instrument was calculated to create alarm; that in the present case there was no evidence that the injury was caused by a spring-gun or other engine calculated to destroy human life or inflict grievous bodily harm. The case of Townsend v. WatJien^^ is earlier than any of the foregoing cases, and as it exhibits a materially different state of facts, stands upon a different principle. § 966. American Decisions on this Subject. — Coming to the Ameri- can adjudications on this subject, in the absence of statutes similar to those of England,"* defining the rights of property owners in the de- fense of their premises by the means here discussed, it has been an interesting question to what extent such a defense may be made. The case of HooTcer v. Miller^"" presents essentially the same features as that of Bird v. Holbroolc,^''^ viz., an injury to a trespasser from the discharge of a spring-gun, of the presence of which the trespasser had neither actual nor implied notice. The court held, in accordance with the authority of that case, that the employment of such means to repel a trespasser was unwarrantable. The decision of the Supreme Court of Connecticut, in Johnson v. Patterson, ^"^ was rendered the year previous to that of J or din v. Crump, ^"^ and would seem to be wholly irreconcilable therewith. The defendant had given the plaintiff notice that he had sprinkled poisonous meal upon his ground, and that, unless the plaintiff's fowls were restrained, they would certainly come upon the defendant's premises and eat of the meal, to their destruc- tion. The plaintiff nevertheless allowed his fowls to trespass upon the defendant's premises, where they ate the poisoned meal, and died in consequence. The court, upon a review of the authorities, held the ^' Supra, 4 Bing. 628. ™ 37 Iowa 613; 1 Cent. L. J. 55. »» 7 & 8 Geo. IV., c. 18. >" Supra, 4 Bing. 628. ='2 C. B. (N. S.) 413. '"=14 Conn. 1. ™ 9 Bast 277. "" Su^ra, 8 Mees. & W. 712. °»7 & 8 Geo. IV., e. 18; 24 & 25 Vict, c. 100, § 31. 8S8 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. defendant liable in a suit for the value of the fowls thus destroyed. Sherman, J., differed radically from the views of Holroyd, J., in Iloit V. Willces.'^°* It does not appear from the facts as stated in the report of Johnson v. Patterson, that the poisoned meal operated as a bait to the fowls, as did the scented meat to the dogs in the case of Townsend V. Wathen;^"^ at least, the decision of the court did not proceed upon that ground. § 967. Setting such Instruments of Destruction to Protect Property from Felonious Depredations.^ — It is stated as a general rule, that "a man may repel force by force in defense of his person, habitation, or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary, and the like, upon either. In these cases, he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and if he kill him in so doing, it is called justifiable self-defense."^"^ There are passages in which it seems to be implied that this right does not exist where the felony is not of a nature to be committed by force.^"^ The question has arisen, in this country, to what extent a man may protect his shop from nocturnal intruders by implements of destruction. There would be no question as to the right of the property owner to protect his shop by this means, if the offense of breaking and entering the same were technical bur- glary at common law; but such it is not.^°^ Therefore, in a State in which the breaking and entering of a shop is declared to be burglary, this question presents no difficulty, and accordingly it was there held that a person may protect his shop by setting a spring-gun therein, but in such a manner as not to imperil the safety of the general pub- lic.^"^ In an earlier case, in the Court of Appeals of Kentucky,^^" a negro slave, in attempting to enter a warehouse at night for pur- poses of theft, was killed by a spring-gun. The robbery attempted in this case, being by a slave, was simply a misdemeanor, while in a white person it would have been a felony. The court held, that while this means of defense would be unjustifiable against a slave, he being known to be such, yet, in the absence of such knowledge, the calamity must be taken as a "misadventure." "The time and the circumstances constituted a ease of necessity that legitimated the means resorted to." ^°* Supra, 3 Barn. & Aid. 304. "'4 Bla. Comm. 180; 1 Bishop's "^ Supra, 9 East 277. Cr. Law, § 853. a This section is cited In §§ 142, "= 1 Hale P. C. 557, 558. 679, 945, 1024, 1055, 1073. '™ The State v. Moore, 31 Conn. '»"1 Bast P. C. 271. See also 1 479. Hale P. C. 488; Fost. C. L. 274; 1 ""Gray v. Combs, 7 J. J. Marsh, Bishop's Cr. Law, § 853. (Ky.) 478. 889 1 Thomp. Neg.J care of real property. Article IV. Duty of Proprietor to Persons Coming oh his Premises by Invitation, Express or Implied. Subdivision 1. — -General Nature of this Duty. Section 968. Duty to use reasonable care to keep one's premises safe for the benefit of persons ex- pressly or impliedly invited thereon. 969. Doctrine that the proprietor or occupier owes a duty of pro- tection to any one lawfully on his premises. 970. Degree of care required of property owner in keeping his premises safe. 971. Degree of care required of one who invites another as a so- cial guest. Section 972. What defects have been as- scribed to negligence. 973. What defects have not been as- cribed to negligence. 974. What defects not deemed the proximate cause of the in- jury. 975. Liability of persons tempora- rily engaged on the premises. 976. Pleading: averment that the plaintiff was upon the prem- ises by invitation. 977. Evidence in these cases. § 968. Duty to Use Reasonable Care to Keep One's Premises Safe for the Benefit of Persons Expressly or Impliedly Invited Thereon.^ — On the contrary, the owner or occupier of real property is under the duty of exercising reasonable or ordinary care and prudence to the end of keeping his premises safe for the benefit of those who come upon them by his invitation^ express or implied; and if, through a neglect of this duty, they are, without negligence or fault of their own, in- jured by reason of any negligent defect therein, he must pay dam- ^^ The person so invited to come upon the premises of the other, a This section is cited in § 1228. "^Sweeney v. Old Colony &c. R. Co., 10 Allen (Mass.) 368; Bennett V. Louisville &c. R. Co., 102 U. S. 577; Tomle v. Hampton, 129 111. 379; s. c. 21 N. E. Rep. 800; Nichols v. Washington &c. R. Co., 83 Va. 99; s. c. 5 Am. St. Rep. 257; 5 S. E. Rep. 171; Indiana &c. R. Co. v. Barnhart, 115 Ind. 399; s. c. 13 West. Rep. 425; 16 N. B. Rep. 121; Dia- mond State Iron Co. v. Giles, 7 Houst. (Del.) 557; s. c. 11 Atl. Rep. 189; 9 Cent. Rep. 577; Pottstown Iron Co. V. Fanning, 114 Pa. St. 234; Welch v. McAllister, 15 Mo. App. 492; Dush v. Fitzhugh, 2 Lea (Tenn.) 307; Brosnan v. Sweetser, 890 127 Ind. 1; s. c. 26 N. E. Rep. 555; Atlantic Cotton Seed Oil Mills v. Coffey, 80 Ga. 145; s. c. 12 Am. St. Rep. 244; 4 S. E. Rep. 759; O'Calla- han V. Bode, 84 Cal. 489; s. c. 24 Pac. Hep. 269; James v. Ford, 30 N. Y. St. Rep. 637; s. c. 9 N. Y. Supp. 504; Engel v. Smith, 82 Mich. 1; s. c. 46 N. W. Rep. 21; Homer v. Everett, 47 N. Y. Super. 298; Clopp V. Mear, 134 Pa. St. 203; s. c. IB Atl. Rep. 504; 25 W. N. C. 574; 21 Pittsburgh L. J. (N. S.) 50; 47 Phil- adelphia Leg. Int. 374; O'Donnell v. Patton, 117 Mo. 13; s. c. 22 S. W. Rep. 903; Boyd v. Graham, 5 Mo. App. 403. Compare Harriman v. Pittsburgh &c. R. Co., 45 Ohio St. INJURIES FROM DEFECTS IN PREMISES. [2J Ed is entitled to assume that they will be in a reasonably safe condi- tion. ^^^ He must not expose them to hidden dangers of which they are not aware, but of which he is or may be by the exercise of reason- able care, aware, especially if the danger is in the nature of a trap.^'^^ To bring a case within this rule, it is not at all necessary that the person invited to come upon the premises should have had any busi- ness that would or would not be of benefit to the owner or occupier. ^^ But it seems that an express invitation, in the intendment of the law, extends to the particular occasion only unless its terms import other- wise; for W€ find a holding to the effect that an invitation extended by railway employes (assuming that they could have authority to ex- tend such invitation), to a child to come into the switch yard, can not be made the basis of an action against the company for the death of the child while in the yard three weeks after such invitation. 4 115 § 969. Doctrine that the Proprietor or Occupier Owes a Duty of Protection to Any One Lawfully on his Premises. — Some courts, dis- regarding distinctions relating to trespassers, intruders, hare licensees, etc., place the doctrine on the broad and just ground that the owner or occupier of premises is bound to exercise ordinary care to the end of keeping his premises in such condition that they will not, by reason of any insecurity or insufficiency, injure any person rightfully in, around, or passing by them, — at the same time holding that such owner or occupier is not an insurer against accidents which may happen from the condition of the premises. ^^^ The distinction is that the person coming upon the premises to whom this duty of care is due, must not come as a mere trespasser or wrong-doer, but for some pur- pose lawful in itself, and such as the owner or occupier might reason- ably expect to bring him there.^^^ This being the rule, if the person injured is rightfully upon the premises, it will make no difference with reference to his right of action for the injury whether he is there as a licensee or by invitation.^ ^* One court has carried the doctrine so far as to hold that the fact that the person injured was a trespasser will not prevent him from recovering damages from the owner or 11; s. c. 12 N. E. Rep. 451; 9 West. 20 Ky. L. Rep. 309; s. c. 46 S. W. Rep. 443. Rep. 5 (not to be rep.). "^■Rangers v. Toronto Public ""Ryder v. Kinsey, 62 Minn. 85; Scliool Board, 23 Ont. App. 597. s. c. 64 N. W. Rep. 94. ™ Corby v. Hill, 4 C. B. (N. S.) "'Newark Electric Light &c. Co. 556; 4 Jur. (N. S.) 512; 27 L. J. v. Garden, 78 Fed. Rep. 74; 23 C. C. (C. P.) 318; Eisenberg v. Missouri A. 649;. 39 U. S. App. 416. Pac. R. Co., 33 Mo. App. 85. "'Pomponio v. New York &c. R. "*Hartman v. Muehlebach, 64 Mo. Co., 66 Conn. 528; s. c. 32 L. R. A. App. 565; s. c. 2 Mo. App. Rep. 956. 530; 34 Atl. Rep. 491. ' Jackson v. Louisville &c. R. Co., 891 1 Thomp. Neg.] caee of eeal pkoperty. occupier, where he did not know that he was trespassing, or where the trespass was purely technical, and such as the trespasser might reason- ably suppose the owner would permit without objection, and which did not cause any appreciable injury or inconvenience to the owner.^^* The doctrine of this paragraph ought to extend to the protection of every public officer, rightfully coming upon the premises of a private owner in the execution of the duties of his office; but when we come to that subject we shall find a regrettable difference of opinion.^^" § 970. Degree of Care Hequired of Property Owner in Keeping Ms Premises Safe. — In these eases — if we except the case of passenger elevators in buildings, separately considered,^^^ — the law is reason- able, and does, not demand of an owner of property more than the exercise of ordinary care, with respect to the rights of third per- sons ;^^^^ but, on the other hand, it does demand the exercise of due, reasonable or ordinary care.^^^ Under the operation of this principle, it is said to be a general rule that where an appliance, machine, or structure, not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe, and convenient, it may be further continued without the imputation of negligence,^ ^* although it might have been made safer at slight expense.^^* So, it has been held that a house-owner need not explore for latent defects in a plat- form between his front steps and the sidewalk, where the platform has been built only seven or eight years, has always been kept painted, and shows no indication that it is unsafe.^^° On the same principle, it has been held that the proprietor of a yajd used for storage purposes^ "» Lowe V. Salt Lake City, 13 Utah Co., 78 Hun (N. Y.) 235; s. c. 28 91; s. c. 44 Pac. Rep. 1050. N. Y. Supp. 819; 59 iST. Y. St. Rep. ™Fost, §§ 981, 982. 879. '"^ Post, § 1075, et seq. '"" Fisher v. Jansen, 30 111. App. 91. "'a Martin v. Pettit, 117 N. Y. 118, '"' Lafflin v. Buffalo &c. R. Co., 106 124; s. c. 26 N. Y. St. Rep. 919; 22 N. N. Y. 136; s. c. 12 N. E. Rep. 599; B. Rep. 561; 5 L. R. A. 794; Tevers- 7 Cent. Rep. 793. This case con- ing s. c. sub nom. Wasson v. Pettit, tains an illustration of the principle 49 Hun (N. Y.) 166; s. c. 16 N. Y. St. with reference to the platform of a Rep. 778. See the following cases railway station which was eight decided with reference to this prin- inches higher than the lower step ciple: Bond v. Smith, 113 N. Y. 378; of the car and one foot seven inches s. c. 22 N. Y. St. Rep. 666; 21 N. E. distant therefrom. It is submitted. Rep. 128. Circumstances under which on what has preceded, that the case it is a question for a jury whether it was improperly decided upon its was negligence for one, knowing facts. that the side of a coal-bin had been '"Egan v. Berkshire Apartment weakened, to remove all the coal Assc, 31 N. Y. St. Rep. 545; s. c. from one bin, leaving a mass of coal 10 N. Y. Supp. 116. in the adjoining bin thirty-five, or ^^ Baddeley v. Shea, 114 Cal. 1 ; forty feet high, and also whether s. c. 33 L. R. A. 747; 45 Pac. Rep. the adjoining bin was sufBciently 990. braced: Davis v. New York &c. R. 892 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. discharges his duty to those rightfully coming upon the premises if, in securing a gate which forms a part of the fence, he uses those de- vices which, under the circumstances, would appear to a reasonably prudent man to be safe, and is not bound to adopt such appliances as experience has shown to be safe.^^" But, as hereafter seen,^^' there is a limit to this principle in cases where the thing which causes the injury is a nuisance per se, such as an open and unguarded area in a sidewalk ^^^ In such cases the fact that the public have for many years escaped injuries from the nuisance is attributable to their good fortune, and is not ascribed to lawful conduct on the part of the author of it. On the same theory, it has been reasoned — and the reasoning applied so as to exonerate a defendant, — that if there is no reason to apprehend injury to any person from the dropping of ma- terials from platforms, employed in the interior construction of a building, there is no duty to adopt special precautions to prevent such an injury.^^" The rule which exacts reasonable care does not de- mand that the property owner should have actual notice of the defect in his premises, where he impliedly invites members of the public to come thereon to deal with him ; since, under such circumstances, he is chargeable with notice of any defect which would have been discovered by a reasonable inspection; and the rule of ordinary or reasonable care demands such an inspection. ^^^ § 971. Degree of Care Required of one who Invites Another as a Social Guest. — Where one visits the private house of another, as a social guest, the owner is bound to take the same care of him that he takes of himself and the other members of his establishment, and no more. Thus, a declaration averred that the defendant was possessed of a hotel, into which he had invited the plaintiil to come as a visitor, and in which there was a glass door, which it was necessary for the plaintiff to open for the piirpose of leaving the hotel, and which the plaintiff, by the permission of the defendant, and with his knowledge, and without any warning from him, lawfully opened for the purpose aforesaid, as a door which was in proper condition to be opened ; nev- ertheless, by and through the mere carelessness, negligence and default of the defendant, the door was then in an insecure and dangerous con- dition, and unfit to be opened, and by reason of the said door being in such an insecure and dangerous condition, and of the then careless- '^ Flanagan v. Atlantic &c. As- Light Co., 73 Mo. 219; reversing s. phalt Co., 37 App. Div. 476; s. c. 5 c. 6 Mo. App. 85. Am. Neg. Rep. 694; 56 N. Y. Supp. ^^ Angus v. Lee, 40 III. App. 304. 18. ""Dunn v. Durant, 9 Daly (N. Y.) ■" Post, § 1200, et seq. 389. "'Buesching v. St. Louis Gas 893 1 Thomp. Neg.] care of real property. ness, negligence, default, and improper conduct of the defendant in that behalf, a large piece of glass fell from the door and wounded the plaintiff. It was held that the declaration disclosed no cause of ac- tion against the defendant. It was considered that the plaintiff being at the hotel, not as a guest for a reward paid to the proprietor, but as a guest in a social way, the case stood on the same grounds as if it had been a private house. '■^^ § 972. What Defects have been Ascribed to Negligence. — In each of the following cases the act or omission named was imputed to the proprietor or occupier as negligence: — Where the owner of premises had a trap-door or hatchway so near to a rear door, which was in com- mon use as a means of entry and exit, as to render it difficult for one entering the door, and having no knowledge of the hatchway, to stop in time to save himself from falling into it, if it is open; even where the person injured had passed out of the store and fell through the hatchway on re-entering ;^^^ where the proprietor of a warehouse was in the habit of throwing heavy bales of merchandise down from the top of piles in the warehouse into a gangway, which was left to connect two entrances through which people came to the office of the ware- house, a lookout being sustained at one entrance only, and no pre- caution being taken to prevent people from coming along from the other entrance, except a partial obstruction of the passage, and the persons throwing the bales down being unable to see whether any one was below or not;^^^ where a storekeeper left an open trap-door in one of the aisles of his store-room, which was ordinarily used by customers, with no other safeguard than a partial obstruction to its approach, consisting of some shirt boxes ;^^* where a sublessee allowed sand to be deposited, by a customer of his, upon a lot leased for that purpose, in such quantities that, by its pressure, it broke down a building on an adjoining lot;^^° where the owner of a grain elevator had given to a person a license to sweep out the cars after being unloaded, and knew that the licensee employed small boys to do the work, but, neverthe- less, placed a steam exhaust barrel, with its top on a level with the floor of the elevator, and with a defective cover which fell on being touched, without giving any notice of the danger;^'" where the owner of a building, the roof of which was used by his tenant for hanging "' Southoote V. Stanley, 1 Hurl. & "° Barnes v. Masterson, 38 App. N. 247; 25 L. J. (Exch.) 339. Div. 612; s. c. 6 Am. Neg. Rep. 143; i^Engel v. Smith, 82 Mich. 1; s. 31 Chic. Leg. News 280; 56 N. Y. c. 46 N. W. Rep. 21. Supp. 939. "^O'Callaghan v. Bode, 84 Cal. 489; '^'Kinchlow v. Midland Elevator s. c. 24 Pac. Rep. 269. Co., 57 Kan. 374; s. c. 46 Pac. Rep. >=• Moore v. Korte, 77 Mo. App. 703. 500; s. c. 2 Mo. App. Rep. 157. 894 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. clothes to dry, and for other purposes to which a yard is commonly put, left thereon a board which was old, decayed, cross-grained, and knotted, and made no repair of the roof for more than two years, although on breaking through the board one's foot could not descend more than four feet.^'^ § 973. What Defects have Wot been Ascribed to Negligence. — ^Un- der the following circumstances, the defects were not deemed of such a character as to impute actionable negligence to the owner or occu- pier of the premises : — Where the stairs in a building were sufficiently lighted, and a woman, while leaving the office in the building, and carefully reaching to take the post and stair-rail to guide herself down the stairs, and stepping forward to do so, suddenly fell down the stairs ;^^^ where a platform forming the means of access to a hotel building, had no railing, and a guest fell from it;^^" where a street railway company left, without any guards, the Joints in the rails of its tracks, before they had cooled off, after having been welded;^*" where a company, owning and operating a coal pier, maintained open coal chutes in the middle of a railway track, over which cars were run, in bringing coal to the pier for delivery, — since to cover the opening would impair and obstruct the business, and, in the opinion of the court, increase the risk to life and limb in case they should be acci- dentally misplaced or left open;^*^ where a railroad company kept oil on a station platform, and a stranger ignited it by carelessly dropping a match, which started a fire.^*^ ""Wilcox v. Zane, 167 Mass. 302; his actual frontage, without being s. c. 45 N. E. Rep. 923. liable for the part erected on the "' Pinney v. Hall, 156 Mass. 225 ; lot of the other, — the conclusion s. c. 30 N. B. Rep. 1016. being that one lot owner was not 139 rpgjj^ Broeck v. Wells, Fargo & liable for an injury received by a Co., 47 Fed. Rep. 690; s. c. 19 Wash, third person by falling into an ex- L. Rep. 807. cavation negligently left unguarded *" Kane v. West End Street R. Co., on the lot of the other, during the 169 Mass. 64; s. c. 47 N. E. Rep. 501. progress of the work: Independence "' Stewart V. Newport News &c. R. v. Ott, 135 Mo. 301; s. c. 36 S. W. Co., 86 Va. 988; s. c. 14 Va. L. J. Rep. 624. No duty to adopt special Hi', 11 S. E. Rep. 885. precautions to prevent Injury from "^ Stone V. Boston &c. R. Co., 171 the dropping of material from a Mass. 536; s. c. 57 N. E. Rep. 1; platform used in the interior con- 41 L. R. A. 794; 4 Am. Neg. Rep. struction of a building, where there 490. In like manner, the proprietor is no special reason to apprehend was exonerated where two adjoin- injury: Angus v. Lee, 40 111. App. ing lot owners entered into an ar- 304. No recovery for injuries from rangement for a building on their an explosion in a closet connected lots to be uniform in architecture, with a sewer, in the absence of evi- and built by one contractor, each dence as to what produced the ex- proprietor to pay, under the con- plosion: Kramer v. Fay, 4 Ohio N, tract for its erection, according to P. 233; s. c. 6 Ohio Dec. 335. 895 1 Thomp. Neg.] care of real property. § 974. What Defects Not Deemed the Proximate Cause of the In« jury. — One court was called upon to decide that negligence in leaving a hole in the iloor of a building unprotected, and covered with paper, did not render persons engaged in work upon the building and who left the hole open, liable for an injury to one rightfully on the prem- ises, caused by falling through another hole.^^^ So, a defect in a dumb waiter for which the owner of the building was responsible, did not render him liable for injuries caused by the fall of the waiter, which fall was produced by a cause to which the defect in no way contrib- uted, but which was due to a different defect, for which he was not responsible.^** § 975. liability of Persons Temporarily Engaged on the Prem- ises. — Laying aside the question of the liability of the occupier of the premises for permitting a nuisance to remain thereon, which ought to be discovered and removed in the exercise of reasonable diligence, it is nevertheless the law that the primary author of such a nuisance is liable for the consequences flowing from it. If, therefore, persons engaged to repair a range in a building leave a box of cement at night in the pathway from the house to the slophopper, in consequence of which a person living in the house falls over it while going in the night to the hopper, they are guilty of actionable negligence.^*^ § 976. Pleading : Averment that the Plaintiff was upon the Prem- ises by Invitation. — In such an action, a general allegation that the plaintiff was lawfully upon the premises of the defendant when he received the injury, has been held bad on demurrer, on the ground that it goes no further than to allege that he was not there as a tres- passer. He might still be there as a bare licensee, and yet the defend- ' ant would owe no duty to him in regard to the care of his premises.^*^ § 977. Evidence in these Cases. — It is sufficient that the thing from which the injury proceeded was within the occupancy and under the ^"' Eilenberger v. Nelson, 64 111. under the circumstances, the act of App. 277; s. c. 1 Chic. L. J. Wkly. placing one table on the other was 275. . negligence, then the proprietor '" Sellers v. Dempsey, 26 App. would not he exonerated by the in- Div. 22; s. c. 49 N. Y. Supp. 765. tervening negligence of a third So, the proprietor of an auction party, unless such intervening neg- room was not liable for an injury ligence was that of a responsible to a customer in the room, caused agent in the sense which supersed- by the fall of a table placed on the ed his own negligence, and made the top of another table, where such latter liable: Ante, % 51, et seg. fall was occasioned by the act of "" Donnelly v. Hufschmidt, 79 still another person who was attend- Cal. 74 ; s. c. 21 Pac. Rep. 546. ing the sale: Geelan v. Cooke, 23 ""Matthews v. Bensel, 51 N. J. L. IViisc. (N. Y.) 460. This decision 30; s. c. 16 Atl. Rep. 195. seems to have been erroneous. If, 896 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. control of the defendant : it is not necessary to prove that he was the owner of it, — as where the plaintiff was injured by the falling of tiles negligently piled by the defendant.^*^ In an action for personal in- juries sustained by falling through a trap-door negligently left open, evidence that people were generally waiting by the trap-door for mail at that hour has been held admissible, as tending to show additional reasons for the exercise of due care in closing or guarding the door.^*^ In such an action, where the injury proceeded from the neg- ligence of the servants of the defendant, in failing properly to guard the trap-door, into which the plaintiff fell, it was immaterial that they acted in violation of their instructions from their master;^*" and con- sequently evidence tending to show that he had given them orders, carefully to guard it has been held immaterial and properly ex- cluded."" Subdivision 2. — To Whom the Proprietor Owes this Duty. Section Section 978. Proprietor owes this duty to 981. Doctrine that policemen are to servant of customer. be deemed on the premises 979. Proprietor owes this duty to by Invitation, and not as bare independent contractor or his licensees. servants. 982. The same protection extended 980. Liability of proprietor for in- to customs officers, water in- juries to the servants of ten- spectors, letter carriers, etc. ants. 983. Protection held not to extend to firemen and fire patrols. § 978. Proprietor Owes this Duty to Servant of Customer. — The owner or occupier of premises manifestly owes to the employes of his customer, coming upon his premises to do business for their employer, the same duty that he would owe to their employer himself. Thus, the owner of a coal yard, in which a railroad track was built for the mutual interest of the owner and the railroad company, was held to owe -to an employe of the railroad company, while riding on a freight car-in the coal yard, with the knowledge of the servants of the owner of the yard, the degree of care which an ordinarily prudent person would "'Palmer v. St., Albans, 56 Vt. 519. method of repairing the steeple was "'Engel V. Smith, 82 Mich. 1; s. to build a scaffold is inadmissible, c. 46 N. W. Rep. 21. in an absence of any evidence that "° Ante, § 530. the accident was produced, in whole ™Engel V. Smith, 82 Mich. 1; s. or in part, by the failure to erect c. 46 N. W. .Rep. 21. In an action such a scaffold: Woods v. Trinity for personal injuries from the fall Parish, 21 D. C. 540; s. c. 21 "Wash. of a shutter from a church steeple, L. Rep. 259. testimony as to whether the proper VOL. 1 THOMP. NEG. — 57 897 1 Thomp. Neg.] care of real property. exercise in favor of another under like circumstances.^"^ So, a rail- road company permitting another railroad company to use its tracks, is bound to exercise ordinary care in the construction and maintenance of its bridges, to the end of protecting the servants of the lessee com- pany; and this will require it to maintain its bridges in such a manner as to permit a safe passage through them, in the usual way, to ears which are in common use upon other roads, although such cars are higher than the cars of the lessor company.^^^ Where the owner of premises, or one carrying on a business, provides something to a cus- tomer, for the use of the servants of the latter in carrying on the business of the customer with the former, a servant of the customer injured by the defective condition of the thing so provided, may have an action against the person furnishing it to his master; for it was actually intended by the defendant to be used by the servants of his customers ; and if the servant's employer, as such a customer, was in- vited by the defendant to use it.^"^^ § 979. Proprietor Owes this Duty to Independent Contractor or his Servants.^^ — It is not necessary to suggest that where a proprietor en- gages an independent contractor to do work upon his premises, the contractor, while executing the work, will be there in pursuance of the invitation of the proprietor, and the proprietor will, under the princi- ples discussed in this chapter, be under the duty of exercising ordinary or reasonable care, to the end of promoting his safety.^ ^* In almost every such case there is the further implication that if the contractor brings third persons, his own employes, his partners or assistants, to assist him in executing the contract, such persons are presumably upon the premises by the invitation of the owners, and he owes to them the same measure of care, to the end of promoting their safety, that 151 Pry V. Hillan (Tex. Civ. App.), employed in unloading the coals, — • 37 S. W. Rep. 359 (no off. rep.). it was held that there was a duty '"= Texas &c. R. Co. v. Moore, 8 on the part of the defendant toward Tex. Civ. App. 289; s. c. 27 S. W. the plaintiff, to exercise reasonable Rep. 962. care with regard to the condition of ^"^ Hayes v. Philadelphia Coal &c. the truck, and that the defendant Co., 150 Mass. 457; s. c. 23 N. E. was therefore liable to the plaintiff Rep. 225. Accordingly, where the in respect of the injuries sustained defendant, who was the owner of a by him: Elliott v. Hall, 15 Q. B. colliery, consigned coals, sold by Div. 315. See also Poulkes v. Met- him to the buyers, by rail, in a ropolitan District R. Co., 4 C. P. Div. truck rented by him from a wagon 267; s. c. 5 C. P. Djv. 157. And note company for the purposes of the the analogy between the doctrine of colliery, and through the negligence the text and the leading case of of the servants of the defendant the Langridge v. Levy, Murph. & H. truck was allowed to leave the col- 134; s. c. 2 Mees. & W. 519; 4 Mees. liery in a defective state, in conse- & W. 337. quence of which defect an injury a This section is cited in § 680. happened to the plaintiff, a servant '"Gardner v. Priederich, 25 App. of one of the buyers, while he was Div. 521; s. c. 49 N. Y. Supp. 1077. 898 INJURIES FKOM DEFECTS IN PREMISES. [2d Ed, he owes to the contractor himself, — and this, although no contractual relation exists between the proprietor and them.^"' Therefore, where the owner of a building caused a stage to be erected for use by one who had contracted with him to supply the building with fire extin- guishing apparatus, and the staging was constructed in a negligent manner, in consequence of which an employe of the contractor was killed, the owner was liable for the death of the employe, although no contractual relation existed between them.^^** "'John Spry Lumber Co. v. Dug- gan, 80 111. App. 394 [citing Dren- nan v. Grady, 167 Mass. 415; Sam- uelson V. Cleveland Iron Min. Co., 49 Mich. 164; s. c. 43 Am. Rep. 456; Powers V. Harlow, 53 Mich. 507; s. c. 51 Am. Rep. 154; Evansville &c. R. Co. V. Griffin, 100 Ind. 221; s. c. 50 Am. Rep. 783; Welch v. McAllis- ter, 15 Mo. App. 492; Bennett v. Louisville &c. R. Co., 102 U. S. 577; s. c. 26 L. ed. 235; Indermaur v. Dames, L. R. 1 C. P. 274; s. c. 1 Thomp. Neg., 1st ed., 283; Heaven v. Pender, L. R. 11 Q. B. Div. 503]; Webster Man. Co. v. Mulvanny, 68 111. App. 607; s. c. aff'd in 168 111. 311; s. c. 48 N. E. Rep. 168; Liebold V. Green, 69 111. App. 527; 2 Chic. L. J. Wkly. 220; Mason v. Tower Hill Co., 83 Hun (N. Y.) 479; s. c. 65 N. Y. St. Rep. 192; 32 N. Y. Supp. 36. In one case the defend- ant, who owned a marble sawing yard, let some of his saws to one T., who conducted an independent business in defendant's yard. Dece- dent, who was in the employ of T., together with some fellow-employes, undertook to move some marble slabs belonging to T. In doing so, a slab was swung against a piece of marble belonging to defendant, knocking it down on decedent and killing him. The defendant was held not liable, as the piece of mar- ble belonging to him which fell on decedent was held to have been law- fully in its place, and secure from ordinary interference, and further, as the proximate cause of dece- dent's death was the negligence of his co-employ6s: Connelly v. Rist, 20 Misc. (N. Y.) 31; s. c. 45 N. Y. Supp. 321. '"Bright v. Barnett &c. Co., 88 Wis. 299; s. c. 26 L. R. A. 524; 60 N. W. Rep. 418. In view of the doctrine of the text, the decisions below cited in this note do not seem to be sound, for the reasons stated: — A decision to the effect that the owner of a building in which there is a dumb waiter, operated by hand, owes no duty of inspection to one who is not his servant, but who is employed by the janitor of the building, and who is not an employg of the owner: Sellers v. Dempsey, 26 App. Div. 22; s. c. 49 N. Y. Supp. 765. A decision to the effect that an employe of a coal company, who has an arrange- ment with his employer to ride upon empty cars while they are being switched, for the purpose of load- ing them with coal, and to apply brakes to stop them at the right place, has no cause of action against a railroad company for an injury caused by a defective brake upon a car furnished by the company, where the company had no knowl- edge of the arrangement: Broslin v. Kansas City &c. R. Co., 114 Ala. 398; s. c. 21 South. Rep. 475; 9 Am. & Eng. Rail. Cas. (N. S.) 99. The company had knowledge that the cars were being used by the coal company, and that the coal company were necessarily using them through the instrumentality of its employes, and that was enough to raise a duty toward the employes of the coal company to see that they were rea- sonably safe for the purposes for which they were supplied. A like decision, to the effect that where a street railway company entered into a contract with another company,, by which the latter was entitled to use the poles of the former, it was not liable for an accident to an employ^ of the latter company, caused by the breaking of an un- safe pole, where the company fur- nishing the pole had no knowledge of the employment in the service of which he was engaged: San An- tonio Edison Co. v. Dixon, 17 Tex. Civ. App. 320; s. c. 42 S. W. Rep. 899 1 Thomp. Neg.] care of real property. § 980. liability of Proprietor for Injuries to the Servants of Ten< ants.* — In the case of an injury received by the servant of a tenant in consequence of the defective condition of leased 'premises, there is more difficulty in holding the landlord liable. One broad theory, laid down in an opinion written by an able judge, but from which three of the judges dissented, in the case of an injury received by a longshoreman upon a public wharf, which had been leased by the defendant, but which was rotten and unsafe at the time of the demise, — was that while the lessee or occupant of such a structure is primarily charged with the duty of keeping it in repair, yet where it is defective when leased to him, in consequence of which, while it is in the possession of the lessee, an injury happens to one lawfully thereon, the lessor who is receiving the benefit by way of rent or otherwise, is liable for the damages.^^' Distinguishing this case, the same court subsequently held, without any dissent, that where premises are delivered by the owner to a tenant in a condition suitable for the use for which they are leased, and in this respect they do not afterwards faU, but altera- tions are required to fit them for their safe and convenient use, it is the duty of the tenant, and not the duty of the landlord, to make such alterations. When, therefore, the owner of a building leased a floor of it to another and agreed to supply steam power on the floor by means of a revolving shaft there built, and, by reason of the failure of the tenant suitably to fence the shaft, one of his servants was caught in it and injured, — it was held that the servant had no right of action against the landlord, since he had complied with his contract with his tenant, and had violated no duty which he had undertaken in the servant's favor, who accepted the premises as she found them.^'^' Again, and on like grounds, it has been held that a railroad company which permits another company to use its tracks under a lease, is bound to exercise ordinary care in the construction and maintenance of bridges along such tracks, for the protection of the servants of the lessee;^^^ and generally, that a railroad company maintaining traffic arrangements with other companies, is bound to maintain its bridges in such a manner as to permit the safe passage through them in the usual way, of cars which are in common use upon other roads, al- though such cars are higher than the ears owned by it.^°" The owners 1009. This decision seems unsound. Key, 66 Wis. 500, where this case is for the reason stated with reference cited. to the previous case. '°'' Texas &c. R. Co, v. Moore, 8 a This section is cited in § 1173. Tex. Civ. App. 289 ; s. c. 27 S. W. ^=' Swords V. Edgar, 59 N. Y. 28. Rep. 962, ""Ryan v. Wilson, 87 N. Y. 471; '™ Texas &c. R. Co. v. Moore, 8 S. c. 63 How. Pr. (N. Y.) 172; 41 Tex. Civ. App. 289; s. c. 27 S. W. Am. Rep. 384. Compare Cole v. Mc- Rep. 962. Liability of one railway 900 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. of an opera house are not liable to a member of an opera company to which the house is leased, who is injured by falling through an open trap door in the stage, which was plainly visible when the house was let, and which could have been closed or lighted at the mere option of the lessee company.^ ^^ § 981. Doctrine that Policemen are to be Deemed on the Premises hy Invitation, and Not as Bare Licensees.^ — If a police officer enters the premises of a private owner, at the request of a tenant, for the purpose of arresting a person there engaged in disturbing the peace, he may maintain an action against the owner of the premises for injuries received from their defective condition, in a respect not attributable to the tenant, while leaving them with the offender in his custody. ^°* This decision proceeds upon the wholesome ground that the owner of premises- is liable for damages accruing from their defective condi- tion, to any member of the public lawfully coming upon them ; and the circumstance of the ofEeer being invited by the tenant is not the matter on which the decision turns. Another wholesome decision of the same court is to the effect that a policeman who, in the discharge of his duty, enters in the night-time a building the doors of which he finds open, and falls down an elevator well, left unguarded by the railing required by the statute, may maintain an action against the owner of thesbuild- ing. Nor does the fact that the statute imposes a penalty affect his case.^°^ This case proceeds upon the ground that a license for the officer to enter under such circumstances is fairly implied; that he enters lawfully, and is not to be deemed as a trespasser; and conse- quently that the owner of the premises has violated a duty owing to him, in leaving a man-trap therein from which he may suffer death or injury. "It is a very ancient rule of the common law," says G-ray, C. J., "that an entry upon land to save goods which are in jeopardy of being lost or destroyed by water, fire, or any like danger, is not a tres- pass."^'* "As individuals may thus enter upon the land of another, firemen may do so for the protection of property, officers of the law for similar purposes, and, under proper circumstances, for the arrest of offenders or the execution of criminal process. The right to do this may be in limitation of the more general right of property which the company for an injury to a brake- a This section is cited in § 969. man of another company, resulting ^"^ Learoyd v. Godfrey, 138 Mass. from allowing crude oil to accumu- 315. late on a side track to which its cars "^ Parker v. Barnard, 135 Mass. are transferred: Cincinnati &c. R. 116; s. c. 46 Am. Rep. 450. Co. V. Criss, 7 Ohio C. Dec. 632; s. c. '"Proctor v. Thomas, 113 Mass. 15 Ohio C. C. 398. 376. "'Holton V. Waller, 95 Iowa 545; s. c. 64 N. W. Rep. 633. 901 1 Thomp. Neg.J care of real property. owner has, but it is for his protection and that of the public.^ "^ When doors are left open in the night-time, under circumstances that prop- erty is unprotected, it is a reasonable police regulation which permits an officer to enter in order to warn the inmates of the house, or to close and fasten the doors ; and a license so to do is fairly implied, which, at least, should shield him from being treated as a trespasser. ^•'^ So, where the cJiief of police of a city, visiting a railway station, according to his custom, at a certain hour of the day, and presumably in the dis- charge of his public duties, was injured by the negligence of the serv- ants of the railway company in running an overloaded truck against him, — it was held that he might maintain an action for the damages. He was there lawfully, and the defendant, by its servants, owed him the duty of exercising reasonable care to avoid injuring him.^°' So, where a police officer in pursuit of a disorderly person fell over the un- protected edge of a lot, which had been left as the result of the city's act in grading down the street, the owner of the lot is not liable for in- juries sustained by his death ;^°^ since here the author of the nuisance, if such it were, was the city and not the private land-owner. § 982. The Same Protection Extended to Customs Officers, Water Inspectors, letter Carriers, etc.^ — The law throws the same protection around customs officers who may be required to go upon public wharves and vessels, in the discharge of their public duties. When, therefore, a customs officer, searching for smugglers on a wharf, where foreign vessels were discharged, having no lantern, fell into the water through an opening negligently left unguarded and unlighted in the wharf by its owner, — it was held that he could maintain an action for the in- jury; nor was it a defense, on the theory of contributory negligence, that he carried no lantern, since his duty in searching for smugglers rendered it necessary for him to keep himself concealed.^ ^* Another '" Citing Metallic Compression "' Ingalls v. Adams Exp, Co., 44 Casting Co. v. Fitchburg Railroad, Minn. 128; s. c. 46 N. W. Rep. 325. 109 Mass. 277, 280; Hyde Park v. "'Woods v. Lloyd (Pa.), 16 Gay, 120 Mass. 589, 593; Com. v. Atl. Rep. 43 (not off. rep.). Cir- Tobin, 108 Mass. 426; Com. v. Rey- cumstances under which a watcJi- nolds, 120 Mass. 190; Barnard v. man, employed by a private detect- Bartlett, 10 Cush. (Mass.) 501. ive agency, was killed by falling lee Parker v. Barnard, 135 Mass. into an open area in an alley in the 116, opinion by Devens, J. The rear of a business house, and there learned Judge also placed the de- was no action for damages by rea- cisiop^tJiTthe ground that policemen son of the theory of the court that were within the protection of the the property owner had been guilty statute "to provide for the regula- of no negligence: Bond v. Smith, tion and inspection of buildings, the 113 N. Y. 378; s. c. 22 N. Y. St. Rep. more effectual prevention of fire, 666; 21 N. E. Rep. 128. and the better preservation of life a This section is cited in § S69. and property in Boston." Mass. "" Low v. Grand Trunk R. Co., 72 Stat. 1872, ch. 260, § 5. Me. 313; s. c. 39 Am. Rep. 331. 902 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. court, proceeding upon the same enlightened ground, has held that it is the duty of a master of a vessel to exercise reasonable precautions for the safety of an official inspector comiilg on board the vessel in discharge of his official duties ; and that the vessel may be held liable for the negligence of the master in this respect.^'" Letter carriers, employed by the postoffice department, are also deemed to enter upon private premises to deliver mail to the occupants, upon a;i implied re- quest of the latter; and if they are injured by dangerous pit-falls or other dangerous defects in such premises, they have an action for dam- ages against the owner or other author of the mischief.^'^^ The same protection extends to the public water inspectors, provided by the water board of a city, who lawfully enter the premises of persons using the water supplied by the city, for the purpose of reading the water meters ; and where such an inspector, entering the cellar of a building for that purpose, was killed by inhaling gas which had escaped and filled the cellar, — it was held that the trial court erred in directing a verdict for the defendant.^' ^ § 983. Protection Held not to Extend to Firemen and Fire Pa- trols. — The Supreme Court of Ehode Island, however, seem to have been unable to appreciate the foregoing views ; for they have held that there is no individual employment or responsibility on the part of prop- erty owners, in respect to a public servant, such as a fireman, such as to constitute an invitation by the property owner to the fireman to enter his premises to extinguish a fire thereon, so as to impose upon him the obligation of keeping the premises reasonably secure for such a pur- pose.^ '^ Contrary to the foregoing reasoning, another court places a fire insurance patrol, entering a building to save property in the time of a fire, in the category of bare licensees, although he enters under a statutory authority; so that if he is injured through the defective con- dition of the premises he has no right of action against the owner therefor.i^* "° The City of Naples, 69 Fed. "' Gordon v. Cummings, 152 Mass. Rep. 794; s. c. 32 U. S. App. 613; 513; s. c. 9 L. R. A. 640; 25 N. E. Id C. C. A. 421. But where such Rep. 578. an officer, having lawfully gone on "' Finnegan v. Fall River Gas board a vessel in the discharge of Works Co., 159 Mass. 311; s. c. 34 his duties, received an injury in N. E. Rep. 523. consequence of the negligence of the "^Behler v. Daniels, 19 R. I. 49; ship's crew in securing a ladder put s. c. 31 Atl. Rep. 582. out to enable him to leave the ves- "''Gibson v. Leonard, 143 111. 182; sel, it was held that he could main- s. -c. 32 N. E. Rep. 182; 17 L. R. A. tain a libel against the vessel there- 588; affirming s. c. 37 111. App. 344; for: The Daylesford, 30 Fed. Rep. s. c. 24 Ohio L. J. 441. 633. 903 1 Thomp. Neg.J care of real property. Subdivision 3. — Liability for Injuries from Defects in, Business Mouses or Grounds. Section 985. Liability for injuries from dangerous places in business houses or grounds. Cases illustrating this liability. Rule does not protect those who come upon business premises for their own purposes ex- clusively. No liability for unsafe condi- tion of those parts of prem- ises not Intended for visit- ors or customers. 986, 987, 988o Section 989. Circumstances qualifying this rule. 990. No liability where premises are entered or left by unusual or unprovided way. 991. Illustrations of rule as to en- tering by an unprovided way. 992. Cases where this rule does not apply. 993. Duty to give warning of dan- ger. § 985. Liability for Injuries from Dangerous Places in Business Houses or Grounds. — The question whether the owner or occupier of houses or grounds, devoted to business purposes, is under an obliga- tion to keep them safe for the protection of persons coming upon them, rests upon a somewhat different principle from, that which re- lates to private ways. That principle is that there is an implied in- vitation to members of the public seeking to do business with the owner or occupier of such building or grounds, such as he invites the public to do with him, to come into his building or upon his premises for that purpose ; and therefore, that he is under a legal obligation to exercise ordinary or reasonable care to the end of making his prem- ises safe for their protection, — in other words, for the protection of his customers. The rule has thus been stated by an eminent judge: "The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express or im- plied, on any business to be transacted or permitted by him, for an injury occasioned by the unsafe condition of the land, or of the access to it, which is known to him and not to them, and which he has negli- gently suffered to exist, and has given them no notice of."^''° "= Carleton v. Franconia Iron Co., 99 Mass. 216, opinion by Gray, J. The following cases establish this doctrine: Indermaur v. Dames, L. R. 1 C. P. 274; s. c. 12 Jur. (N. S.) 432; 35 L. J. (C. P.) 184; 14 "Week. Rep. 586; 14 L. T. (N. S.) 184; L. R. 2 C. P. 311; 36 L. J. (C. P.) 181; 15 Week. Rep. 434; 16 L. T. (N. S.) 293; 1 Thomp. Neg., 1st ed., p. 283; White v. France, 2 C. P. 904 Div. 308; s. c. 5 Cent. L. J. 281; Chapman v. Rothwell, El. Bl. & El. 168; s. c. 4 Jur. (N. S.) 1180; 27 L. J. (Q. B.) 315; Freer v. Cameron, 4 Rich. L. 228; Luddington v. Mil- ler, 4 Jones & Sp. (N. Y.) 1; Ackert V. Lansing, 59 N. Y. 646; s. c. 48 How. Pr. (N. Y.) 374; Gilbert v. Nagle, 118 Mass. 278; Pastene v. Adams, 49 Cal. 87; Dush v. Fitz- hugh, 2 Lea (Tenn.) 307; Readman INJURIES FROM DEFECTS IN PREMISES. [2d Ed. § 986. Cases Illustrating this Liability. — To illustrate this, let us suppose the case where a pork-packer sells to any one who may apply therefor, pork-tenderloins and spare ribs, and a person conies into his establishment for the purpose of buying this commodity and falls down a hole in a dark place and is injured. Here, the occupier of the premises is liable to the customer in damages.^^® So, where the owner of a cotton mill was in the habit of selling hulls to customers who might come after them and haul them away with their own teams, he was held liable for an injury occasioned by the unsafe condition of the way over his own land to the mill, even to the servant of one to whom he had given some of the hulls.^'^^ So, the owner of a saw and planing mill, who was in the habit of selling shavings and sawdust to customers by the wagon load, and who allowed an accumulation of ice upon his premises whereby a customer was injured while loading his wagon, — was held liable in damages.^^* The rule has been extended by one court to the protection of a child, coming into a store with its parent, and there injured by the fall of a mirror;^'* and denied by another court to the protection of a child less than seven years old, who came into a store with her father, and put her hand into the spout of a coffee grinder, losing some of her fingers. ^^^ One who owned and operated a trestle, which was also used as a place for the storage of ore, removed the ore from one side of the trestle, leaving a large weight of ore to press against the other side, vrithout interposing any props as supports. The trestle gave way, killing an employe of a railroad company, who was lawfully upon it engaged in the work of pushing loaded cars. It was held that the owner of the trestle was liable.^ '^ The owner of a building occupied as retail stores, laid a stone flagging between the building and the sidewalk, but left an opening under the show window of the store for the purpose of admit- ting light, and left the passageway thus created, unguarded on the side of the opening. In this condition he rented the store to a tenant, A passer-by looking into the show window, after dark, fell into the v. Conway, 126 Mass. 374; Atlanta '"Welch v. McAllister, 15 Mo. Cotton Seed Oil Mills v. Coffey, 80 App. 492. Ga. 145; s. c. 4 S. E. Rep. 759; 12 "'Atlanta Cotton Seed Oil Mills v. Am. St. Rep. 244; O'Callaghan v. Coffey, 80 Ga. 145; s. c. 12 Am. St. Bode, 84 Cal. 489; s.c. 24 Pac. Rep. Rep. 244; 4 S. E. Rep. 759. 269; James v. Ford, 30 N. Y. St. ™ O'Donnell v. Patton, 117 Mo. 13 ; Rep. 637; s. c. 9 N. Y. Supp. 504; s. c. 22 S. W. Rep. 903. Engel v. Smith, 82 Mich. 1 ; s. c. 46' ™ T. Eaton Co. v. Sangster, 24 N. W. Rep. 21; O'Donnell v. Patton, Can. S. C. 708. 117 Mo. 13; s. c. 22 S. W. Rep. 903; '"'Holbrook v. Aldrich, 168 Mass. Davis V. Ferris, 29 App. Div. 623; 15; s. c. 36 L. R. A. 493; 46 N. E. B. c. 53 N. Y. Supp. 571; T. Eaton Co. Rep. 115. V. Sangster, 24 Can. S. C. 708; Bros- "' Pottstown Iron Co. v. Fanning, nan v. Sweetser, 127 Ind. 1; s. c. 26 114 Pa. St. 234. N. B. Rep. 555. 905 1 Thomp. Neg.J cake of real peoperty. opening and was injured. It was held that the owner of the building was liable.^* ^ § 987. Rule does Not Protect Those who Come upon Business Prem- ises for their Own Purposes Exclusively. — But he is under no such obligation towards those who elect to come upon his business premises not for the purpose of doing such business with him as he invites the public to do, but for other purposes of their own. Such persons stand on the footing of trespassers or tare licensees and, on a principle al- ready considered,^* ^ they take the premises as they find them, and if they are hurt in consequence of any defect in them, they can not re- cover damages.^** Suppose, for example, that an accident due to a negligent defect in business premises, had happened to a hooh can- vasser, or a life insurance agent, or a lightning rod man, — clearly the conclusion of the law would be otherwise, on the ground that no im- plied invitation had been given to such a person to come upon the premises. Accordingly, it has been held that one who for her own convenience goes into a building containing offices, to obtain informa- tion from an occupant in regard to a matter wholly disconnected with his business, or with the business of any occupant, or with the business for which the building was used or designed, is a mere licensee, and can not recover from the owner of the building for personal injuries sustained by reason of its defective condition. ^*^ The same conclu- sion was reached where a person was making, without invitation, a friendly caZZ.upon a telegraph operator at a railway station, and while there was injured by the station being demolished through a collision of trains.^*^ '5^ Tomle V. Hampton, 129 111. 379; the owner or occupier, liable for an s. c. 21 N. E. Rep. 800. On the injury sustained by one coming into other hand, the proprietor of a dry the building and' falling through an- goods store, who had placed, next other hole: Eilenberger v. Nelson, to the railing, on the side of a stair- 64 111. App. 277; s. c. 1 Chic. L. J. way, which was broad, carpeted, and Wkly. 275. properly constructed, but which had ^^ Ante, § 946. no footholds, brass plates, or rub- ^'^ Flannigan v. American Glucose ber pads, nor any railing on the op- Co., 33 N. Y. St. Rep. 867; s. c. 11 posite side,— a figure for exhibiting N. Y. Supp. 688; Matthews v. Ben- children's clothing, — was not guilty sel, 51 N. J. L. 30; s. c. 16 Atl. Rep. of such negligence as made him lia- 195 ; Woolwine v. Chesapeake i&c. R. ble to a customer who fell while Co., 36 W. Va. 329; s. c. 15 S. E. walking down the stairs in broad Rep. 81; 16 L. R. A. 271; 12 Rail, daylight: Larkin v. O'Neill, 119 N. & Corp. L. J. 21. Y. 221; s. c. 29 N. Y. St. Rep. 54; »Tlummer v. Dill, 156 Mass. 426; 23 N. B. Rep. 563; reversing 48 fiun s. c. 31 N. E. Rep. 128'. (N. Y.) 591; 16 N. Y. St. Rep. 28. '"Woolwine v. Chesapeake &c. R. It is scarcely necessary to add that Co., 36 W. Va. 329; s. c. 16 L. R. A. negligence in leaving a hole in the 271; 12 Rail. & Corp. L. J. 21; 15 floor of a building, unprotected and S. E. Rep. 81. covered with paper, will not render 906 INJURIES FKOM DEFECTS IN PREMISES. [2d Ed. § 988. No Liability for TJnsafe Condition of those Parts of Premises Not Intended for Visitors or Customers. — But this duty does not ex- tend so far as to make such an occupant responsible for the unsafe condition of those parts of his premises not intended for the recep- tion of visitors or customers, and where they are not expected or in- vited to go.^*' Thus, a cooper came to a tobacco-warehouse to deliver barrels, according to his custom. Without the knowledge of any one on the premises, he went to the rear of the huilding, and there fell through the hatchway of a freight-elevator, which was in use, and the bars protecting which were withdrawn. He knew of the existence of the hatchway, and, after the accident, stated that "he did not know what took him there; he had no business there at all." His death having ensued, it was held that his administratrix could not recover damages.^** A customer of a brass-founder called to see whether some work was done. The proprietor sent a servant into the back room or laboratory to make the necessary inquiry. To this room the public were not admitted ; there was a sign before the door, "No admit- tance," and the employes were instructed not to admit visitors there. Nevertheless the customer went into this room, without the knowledge or consent of any one, and, while returning, fell into a scuttle and was injured. It was held that he could not recover.^*' § 989. Circumstances Clualifjdng this Eule. — Circumstances may qualify the rule of the preceding section, and make it a fair question for the jury whether the person injured was in a portion of the prem- ises where he had no right to be, or was otherwise guilty of contribu- tory negligence. ^°" It was so held where the clerk of the proprietor invited the customer into a dark and unprovided part of the store, and he there fell into an open cistern.^ '^ Thus, a woman who sold sew- ing-machines on a commission brought a customer to the shop. She went to the rear of the shop, and, while examining a machine which she had no intention of buying or selling, fell into a trap-door and was injured. Whether she was properly there, was held a question for the jury.^°^ Obviously, the rule that the keeper of a public place of business is bound to keep his premises and the passageways in a safe condition, and use ordinary care to avoid accidents or injury to those properly entering upon the premises on business, does not apply to such parts of the building as are used for the private purposes of the '"Zoebisch v. Tarbell, 10 Allen '«>McKee v. Bidwell, 74 Pa. St. (Mass.) 385; Murray v. McLean, 57 218. 111. 378. '"Freer v. Cameron, 4 Rich. L. •^Murray v. McLean, 57 111. 378. (S. C.) 228. "' Zceblsch v. Tarbell, 10 Allen '"= Gilbert v. Nagle, 118 Mass. 278. (Mass.) 385. 907 1 Thomp. Neg.] care of real property. owner, unless the party was induced by the invitation or allurement of the owner, expressed or implied, to enter thereon.^*^ § 990. No Liability where Premises are Entered or left by Un- usual or Unprovided Way.* — Neither will the proprietor or tenant of a business establishment be liable to one who is injured in conse- quence of coming thereon, not by the usual way provided for that pur- pose, but by a way of his own selection, not designed for customers or other visitors.^"* Accordingly, it has been reasoned that an invitation to the public having lawful business on an individual's premises, im- plied by the aspect of the house and grounds, does not cover the whole yard irrespective of pathways, necessary lines of travel, or anything on the surface promising security; and that one who in the night falls down cellar stairs by the side of the house can not recover, where the route selected by him was not appropriate to travel. ^^^ Another court has reasoned that a person driving upon the premises of another al- though for lawful purposes, is bound to leave by the usual, ordinary and customary way, provided that way is in safe and good condition ; and that if, for his own convenience, or for any other reason than a defect in the usual way, he leaves such way and seeks to depart from the premises by another way, he remits himself to the condition of a bare licensee so that he can not recover damages in case he is injured while so making his exit.^°® On the other hand, there is a holding to the effect that a customer who entered a store intending to make a pur- chase, and who, in attempting to depart by means of a side door, which was unlocked at the time, and which the customer had frequently used as a means of exit, and, upon stepping outwards toward the street, fell into a cellar opening, and sustained injuries, — was entitled to re- cove^ damages, in the absence of proof of contributory negligence.^ °' "'Schmidt v. Bauer, 80 Cal. 565; American Provision Co. v. Hart, 66 s. c. 5 L. R. A. 580; 22 Pac. Rep. 111. App. 659. 256. Compare Johnson v. Ramberg, "'Walker v. Winstanley, 155 49 Minn. 341; s. c. 51 N. W. Rep. Mass. 301; s. c. 29 N. E. Rep. 518. 1043; where the question turned on ""Armstrong v. Medbury, 67 Mich, the lightness of the room, and the 250; s. c. 11 West. Rep. 190; 34 N. W. contributory negligence of the Rep. 566. plaintiff. "' James v. Ford, 30 N. Y. St. Rep. a This section is cited in §§ 952, 637; s. c. 9 N. Y. Supp. 504. In this 1006. case the charge of contributory .neg- "* Victory v. Baker, 67 N. Y. 366; ligence against plaintiff, was sought Walker v. Winstanley, 155 Mass. to be sustained by defendant's evi- 301; s. c. 29 N. E. Rep. 518; Schmidt dence that the door was locked, and V. Bauer, 80 Cal. 565; s. c. 22 Pac. that plaintiff had been warned not Rep. 256; 5 L. R. A. 580; Johnson to use that means of egress. The V. Ramberg, 49 Minn. 341; s. c. 51 court held that the contributory N. W. Rep. 1043 ; Armstrong v. Med- negligence of plaintiff and the neg- burg, 67 Mich. 250; s. c. 34 N. W. ligence of defendant were, under the Rep. 566; 10 West. Rep. 190; North circumstances, questions for the jury. 908 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. Another court has held that a person entering a warehouse at a door which is usually kept unlocked, although not much resorted to, and which is occasionally used, is not for that reason guilty of contribu- tory negligence, although he has been in the habit of entering at the main entrance, at the other side of the building. But the question why he entered seems to have become immaterial, since his death oc- curred in making his exit through a gangway which was in common use near the main entrance, through the negligence of the employes in the warehouse, — the conclusion being that a recovery might be had.^°^ § 991. Illustrations of the Rule as to Entering by an Unprovided Way.^^ — There are also cases which must be considered as exceptions to or qualifications of the rule. Thus, a carman was sent to the de- fendant's premises to fetch some goods. After waiting for some time, he was directed by a servant of the defendant to go along a passage to a counting-house, where he would find the warehouseman. The passage was dark, and in going along it he fell down a staircase and was seri- ously injured. The proprietor was exonerated from liability, on the ground that the staircase was not a "man-trap," like a trap-door or scuttle-hole; that the proprietor was hence under no obligation to guard and light it; and that the carman should not have proceeded without a light.^'' In another case, the plaintiff and defendant were both farmers. The plaintiff went to the defendant's house late in the evening, to buy six bushels of oats. The defendant had no oats to sell ; but, yielding to the plaintiff's importunities, he consented to sell him the oats to accommodate him. The defendant always kept his granary locked ; but he obtained the key by sending some distance for it, and went with the plaintiff to the upper floor of the granary, where the oats were, and while the defendant stepped back to get a measure, the plaintiff, walking about the floor in the dark, fell through an aperture therein, and was injured. It was held that the defendant was not liable for the injury. The grounds on which the court pro- ceeded are best expressed in the opinion of the court, given by Timothy P. Eedfield, J. : "In this case, although the defendant did not wish to sell the oats, and only yielded to the importunity of the plaintiff, and, to his own inconvenience, went to his granary late at night to faVor and accommodate the plaintiff, yet, allowing the plaintiff to go into the granary with him to take the delivery of the oats, we think the defendant did assume the duty to the plaintiff that the means of access were reasonably safe. And if the plaintiff, on going to or returning »'» O'Callaghan v. Bode, 84 Cal. 489; >»'' Wilkinson v. Falrrie, 1 Hurl. & s. c. 24 Pac. Rep. 269. C. 633; 9 Jur. (N. S.) 280; 32 L. J. a This section is cited in § 1006. (Exch.) 73; 7 L. J. (N. S.) 599. 909 1 Tliomp. In eg.] care of real property. from the oats, or in putting them into bags and taking the delivery, while doing that matter of business, had accidentally, without warn- ing, slipped into a pitfall, it would have been a very different case. The granary was a private receptacle of the defendant's grain, kept constantly locked. The plaintiff was permitted there for one simple specific matter of business, — to take six bushels of oats ; the oats were shown him ; to facilitate the delivery, the defendant went for his meas- ure ; he left the plaintiff at the oats, where he should be, in the dark, but in a safe place. The oats could be delivered at no other place, and no other matter of business was permitted to him there. If, for curios- ity or other motive, he chose to occupy that moment in the darkness in wandering about the granary, and lost an eye by the point of a scythe, or stumbled over a horse-rake and maimed himself, or fell through a scuttle in the floor, he was doing what he was not invited or permitted by the defendant to do, and what was no part of the business in hand ; and we think this departure was of his motion, and at his risk.^"" We have no occasion to discuss how far the plaintiff would be affected by his previous knowledge of this opening in the floor of the granary ; for whether he had knowledge or not, he can not recover. And the fact that he was severely injured proves that the act was careless ; and the travelling about the granary in the dark, not only contributed to the injury, but was the cause of it."^°^ § 992. Cases where this Eule does Wot Apply. — But this rule is subject to the reasonable limitation that if a person having a right to enter premises is deceived by the manner in which they are constructed, so that he enters by the wrong door, and is there injured by a negli- gent defect in the premises, he can recover. Thus, the defendants had leased a loft over their place of business to a person having a large number of workwomen in his employ. There were two doors to their building, one of which was the regular entrance to their stores, for the use of customers, and the other designed for the reception of freight, the latter of which the workwomen generally used as a means of access to the loft ; but when blockaded, they entered through the other door. The freight-door was composed of three folds, two of which were usually turned aside, so as to make the entrance from five to seven feet wide, exposing to view a wide staircase leading to the loft in question. Between the door and the foot of the staircase, a distance of about ten feet, was a trap-door for the purposes of the place, which the ™ Citing Hounsell v. Smyth, 7 C. ^' Pierce v. Whitcomb, 48 Vt. 127, B. (N. S.) 731; 6 Jur. (N. S.) 897; 131. 29 L. J. (C. P.) 203; 2 Week. Rep. 227. 910 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. servants of the defendants having left open, the plaintiff, one of the workwomen, fell through and was injured. The defendants contended that the proper entrance was through the other door; but they were cognizant of the daily use of this door as an entrance to the loft. These facts were held to be evidence for the jury, the court stating that, if uncontradicted, they would seem to demonstrate that the en- trance in question was not only the proper one for the purpose used, but the most direct.^"^ So, where it was in evidence that the store of the defendant, to which customers came to make purchases, had two entrances which, when the outer doors were closed were of a like ap- pearance ; that one entrance was specially intended for customers, but that there was a hatchway just inside of the other ; that the outer door of the latter entrance being unfastened, and the plaintiff, unfamiliar with the arrangements of the premises, entered as a customer to do business and fell through the hatchway, which had been left open and unguarded, and was injured, — there was a question of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff, which was properly submitted to the jury.^°^ § 993. Duty to give Warning of Danger.^ — Where the owner of a building or grounds, expressly or impliedly invites the public to come upon it, and a dangerous obstruction or pit-fall exists upon it, it is his duty, in the exercise of that reasonable care which the law under such circumstances puts upon him, either to fence it so that persons will not accidentally fall into it, or else to give them such warning as is reason- ably calculated, under the circumstances, to keep them from such harm.^"* Whether a warning which has been given of such a danger is sufficient must obviously be, in most cases, a question for a jury.^"^ Subdivision 4. — Liability for Injuries from Defects in Public Houses or Grounds, etc. Section Section 994. Injuries to persons visiting 995. Further of the obligations as- public houses, public exhibi- sumed by the proprietors and tions, etc. managers of such places. ""'Elliott V. Pray, 10 Allen (Mass.) 82 Mich. 1; s. c. 46 N. W. Rep. 21; 378. Pelton v. Schmidt, 104 Mich. 345; "°=Clopp V. Hear, 134 Pa. St. 203; s. c. 62 N. W. Rep. 552; Louisville &c. s. c. 19 Atl. Rep. 504; 25 W. N. C. R. Co. v. Popp (Ky.), 27 S. W. Rep. 571; 21 Pitts. L. J. (N. S.) 50; 47 992; s. c. 16 Ky. L. Rep. 369; 10 Am. Phila. Leg. Int. 374. R. & Corp. Rep. 280 (no off. rep.); a This section is cited in 929. Lepnick v. Gaddis, 72 Miss. 200; ^Brosnan v. Sweetser, 127 Ind. s. c. 26 L. R. A. 686; 16 So. Rep. 213. 1; s. c. 26 N. E. Rep. 555; Hartman ^'Brosnan v. Sweetser, 127 Ind. V. Muehlebach, 64 Mo. App. 565; s. c. 1; s. c. 26 N. E. Rep. 555. 2 Mo. App. Rep. 956 ; Engel v. Smith, 911 1 Thomp. Neg.j care of heal property. Sectioit 996. Degree of care required of the owners of public resorts. 997. Cases illustrating this obliga- tion of care, presenting ques- tions for jury. ■ 998. Further illustrations — Proprie- tor liable. 999. Further illustrations — Proprie- tor exonerated. 1000. Injuries in and about public school buildings. 1001. Injuries from defects in public hospital buildings. 1002. Liability of railway companies for injuries through defects in their stations and grounds. Section 1003. To what class of persons this liability extends. 1004. To what persons this liability does not extend. 1005. Degree of care due to persons using such stations and prem- ises. 1006. Illustrations of negligence of railway companies in this particular. 1007. Liability for injuries received upon public wharves and piers. 1008. Liability for injuries upon tolt bridges. 1009. Liability for falling to provide fire-escapes. § 994. Injuries to Persons Visiting Public Houses, Public Exhibi- tions, etc.* — The invitation which may render a land-owner liable to persons coming upon his premises who are injured through defects therein may be that implied invitation which is involved in desig- nating or dedicating a property to a particular use.^"® Upon this principle the proprietors of public houses, public exhibitions, and other establishments to which the public are expressly or impliedly in- vited to resort in large numbers, rest under a special duty imposed by the principles of the law to exercise reasonable care in construction, maintenance and management, to the end of protecting the public so coming upon their premises.^"' a This section is cited In § 1060. "" Indiana &c. R. Co. v. Barnhart, 115 Ind. 399, 408; s. c. 16 N. E. Rep. 121; 13 West. Rep. 425. ""Glase V. Philadelphia, 169 Pa. St. 488; s. c. 36 W. N. C. 453; 32 Atl. Rep. 600; Hart v. Washington Park Club, 157 111. 9; s. c. 29 L. R. A. 492; 48 Am. St. Rep. 298; 41 N. E. Rep. 620; Brotherton v. Manhattan Beach Imp. Co., 48 Neb. 563; s. c. 33 L. R. A. 598; 67 N. W. Rep. 479; aff'd on rehearing in 69 N. W. Rep. 757; Boyce v. Union &c. R. Co., 8 Utah 353; s. c. 18 L. R. A. 509; Mc- Graw V. District of Columbia, 3 App. D. C. 405; s. c. 25 L. R. A. 691; Tucher v. Champaign County Agri- cultural Bd., 52 111. App. 316; error dismissed in 154 111. 593; s. c. 39 N. B. Rep. 563; Schofield v. Wood, 170 Mass. 415; s. o. 49 N. B. Rep. 636; Lane v. Minnesota State Agri. Soc, 912 62 Minn. 175; s. c. 29 L. R. A. 708; 64 N. W. Rep. 382; Oxford v. Leathe, 165 Mass. 254; s. c. 43 N. E. Rep. 92; Selinas v. Vermont State Agri- cultural Soc, 60 Vt. 249; s. c. 15 Atl. Rep. 117; 6 N. Bng. Rep. 770; 6 Am. St. Rep. 114; Currier v. Bos- ton Music Hall Asso., 135 Mass. 414; Camp V. Wood, 76 N. Y. 92; Davis V. Central Congregational Soc, 129 Mass. 367; s. c 37 Am. Rep. 368; Continental Steamboat Co. v. Burke, 149 U. S. 770; 37 L. ed. 939 (judgment for damages affirmed by a divided court); Howe v. Ohmart, 7 Ind. App. 32; s. c 33 N. E. Rep. 466. Non-liability of the owner of 'public pleasure grounds who leases a roller-coaster or switch- back, and permits it to be operated on the grounds, and advertised as one of the attractions of the place: Knottnerus v. North Park Street R. INJURIES FROM DEFECTS IN PREMISES. [2(1 Ed. § 995. Further of the Obligations Assumed by the Proprietors and Managers of such Places.^ — A person who causes a building to be erected for viewing a public exhibition, and who admits persons on the payment of money, assumes an obligation analogous to that of a car- rier toward his passengers. In such a contract there is an implied warranty, not only of due care on the part of himself and his servants, but also of due care on the part of himself and any independent con- tractor who may have been employed by him to construct the build- ing, stands, or other structure which the public are invited to use.^"^ On like grounds, if the owner of a building engages a contractor to make repairs on it, and agrees to furnish such contractor with a suit- able scaffolding for the use of his workmen, he is bound to see that due care and skill have been used in constructing and maintaining it ; and if, for want of this, it falls, and one of such contractor's workmen is killed, he must pay damages to his administrator.^"* All cases of negligence proceed upon the idea of a breach of duty to the -person in- jured. This duty must either arise out of contract, as in Langridge-v. Levy,^^" and the cases which we are now considering, or else it must be a general duty which the defendant owed to each member of the public distributively. Unless this is so, the principle declared in Winterbottom v. Wright,^^^ and other cases of like character already considered,^ ^^ governs, and no action lies. Accordingly, a declaration that the defendant wrongfully, negligently, and improperly hung a chandelier in a public-house, knowing that' the plaintiff and others were likely to be therein and under the chandelier, and that the chan- delier, unless properly hung, was likely to fall upon and injure them, and that, the plaintiff being lawfully in the public-house, the chan- delier fell upon and injured him, was bad on demurrer ; for it disclosed no duty toward the plaintiff for the breach of which an action could be maintained. For aught that appeared, the defendant might have ibeen a workman, and might have hung the chandelier in that position years before.^ ^* § 996. Degree of Care Required of the Owners of Public Resorts. — The duty assumed by the owners of places to which the public thus Co., 93 Mich. 348; s. c. 53 N> W. Rep. "^Francis v. Cockrell, L. R. 5 Q. 529; 17 L. R. A. 726. Liability of B. 184, 501. tlie managers of a public fair for ™ Couglitry v. Globe Woollen, Co., an injury to a member of the public 56 N. Y. 124 (reversing 1 K. Y. S. C. from a shot flying from a target- (T. & C.) 452). gun, of the place and danger of '•" 2 Mee. & W. 519 (in error, 4 which there was no notice posted or Mees. & W. 337) ; ante, § 827. given: Conradt v. Clauve, 93 tnd. '" 10 Mees. & W. 109. 476. ''^Ante, §§ 686, 826, et seq. a This section is cited in § 1233. '" Collis v. Selden, L. R. 3 C. P. 495; 37 L.J. (C. P.) 233. VOL. 1 THOMP. NEG. — 58 "liJ 1 Thomp. Neg.J care of real property. resort in large numbers is manifestly analogous to that which the law- imposes upon carriers of passengers. Nevertheless it has been meas- ured by the standard of ordinary care.^^* Doubtless the true theory is that such persons assume the obligation of exercising reasonable care, and that what will be reasonable care will be a degree of care proportioned to the danger incurred,^^^ 'and to the number of persons who will be subjected to that danger.^^® A good expression of the rule of liability, applicable in such cases, is found in an English case to the effect that the proprietor of such a structure is not a warrantor or insurer that it is absolutely safe, but that he impliedly warrants that it is safe for the purpose intended, save only as to those defects which are unseen, unknown, and undiscoverable, — not only unknown to himself, but undiscoverable by the exercise of any reasonable skill and diligence, or by any ordinary and reasonable means of inquiry and examination.^^' Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the pro- tection of those whom he invites to come into it; and that, if he neg- lects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defect which renders it unsafe is immaterial.^ ^^ § 997. Cases Illustrating this Obligation of Care, Presenting ftues- tions for Jury. — Accordingly, the lessees of a structure intended as a place of public exhibition were held not responsible for latent defects in a staircase, whether in its construction or material, at the time they took the building, but were only responsible for a want of due care in failing to keep it in a reasonably safe condition, and were liable for repairing it in an improper manner, which tended to weaken it;^'* and it was a proper question for the jury whether the proprietor had employed proper persons to make the alterations, and whether these persons had employed proper care and skill. ^^^ Whether a society conducting an agricultural fair was guilty of actionable negligence in permitting, during an exhibition, the use of a "striking machine," on its grounds with no guards around it, whereby plaintiff was struck by a mallet used in striking the machine by a stranger, was held a ques- "* Brown v. Kennebec Agricultural ™ Currier v. Boston Music Hall Soc, 47 Me. 275; ante, § 23. Assc, 135 Mass. 414. ""'Ante, §§ 25, 26. '^'^ Pike v. Polytechnic Institution, '^' Currier v. Boston Music Hall 1 Fost. & Fin. 712. Asso., 135 Mass. 414. ™ Brazier v. Polyteclinic Institu- '"' Francis v. Cockrell, L. R. 5 Q. tion, 1 Fost. & Fin. 507. B. 184; s. c. in Exch. Cham., Id., 501. 914 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. tion for the jury.'^^^ It was also for the jury to decide whether the machine had been on the grounds of the defendant so long that they ought to have known of its presence and of its dangerous character.^^^ The proprietor of an inn kept a public hall therein, which he was ac- customed to let for hire. On a particular evening he let it for the purpose of a public dance. The plaintiff, who paid an entrance fee, on leaving the place, stepped out upon a level awning which he took to be the means of exit, and, in consequence of its being unguarded and unlighted, fell from it and was injured. It was held that the question whether the defendant was guilty of a breach of duty towards the plaintiff and whether the fact of the intoxication of the plaintiff materially contributed to the injury, were properly submitted to the jury.^^^ If a religious society gives notice of a meeting to be held at its house of worship, and invites the members of other societies to at- tend, a member of a church so invited, while on the land of the society, is not a mere licensee, and may maintain an action against the society for a personal injury sustained, while in the exercise of due care, from the dangerous condition of the defendant's premises. Accordingly, where a member of another religious society so invited, in making her exit from the meeting-house after dark, by a path which the defend- ant's society had left in a dangerous condition and unlighiod, fell and was injured without her own fault, — it was held that there was a ques- tion for the jury whether the defendant had not been guilty of a breach of duty toward her, and whether she was in the exercise of due § 998. Further Illustrations — Proprietors Liable. — A city main- tained a roof service to which the public were invited. It left a man- hole covered by an unguarded revolving lid which turned when stepped upon.^^° A street railway company advertised a balloon ascension at a park owned and controlled by it. During one of the performances a pole which, through its negligence had become unsafe, fell.^^^ The owner of a building, used for giving exhibitions, negligently con- structed and maintained an insufiScient guard rail along the front of ^^' Selinas v. Vermont St. Agri. a student through a dangerous pit- Soc, 60 Vt. 249; s. c. 15 Atl. Rep. fall, on entering the premises at 117; 6 N. Eng. Rep. 770; 6 Am. St. night to attend a meeting of a liter- Rep. 114. ary society: Howe v. Ohmart, 7 Ind. "'"Selinas v. Vermont St. Agri. App. 32; s. c. 33 N. E. Rep. 466. Soc, 60 Vt. 249; s. c. 15 Atl. Rep. ™Glase v. Philadelphia, 169 Pa. 117; 6 N. Eng. Rep. 770. St. 488; s. c. 36 W. N. C. 453; 32 Atl. '■^^ Camp V. Wood, 76 N. Y. 92. Rep. 600. ^* Davis V. Central Congregational ""° Richmond &c. R. Co. v. Moore, Soc, 129 Mass. 367; s. c. 37 Am. Rep. 94 Va. 493; s. c. 27 S. E. Rep. 70; 37 368. The liability of the owners of L. R. A. 258; 3 Va. Law Reg. 572. a college tuilding for an injury to 915 1 Thomp. Neg.J care of keal property. the gallery, which gave way as the spectators were leaning against it in the usual way, watching the show.^^^ An agricultural society, con- ducting a horse race, permitted a horse to run in a race, knowing it to be dangerous by reason of a vicious habit of "track bolting." It bolted, injuring a woman engaged to ride in the same race, who was ignorant of its vicious habit.^^^ A keeper of a bathing house failed to provide a watcher to prevent accidents to bathers unable to swim, and, on information of imminent danger to such a bather, failed to render him timely assistance. ^^* In each of the above cases, injury or death having resulted from the negligence of the keeper of the public resort, it was held that an action for damages lay against him. It has been ruled that this duty of ordinary care requires the keeper of a public iafhing resort frequented by great numbers of people, and at which there is deep water, to keep some one constantly on duty to supervise bathers and to rescue any who are apparently in danger;^'" and that this measure of duty requires immediate search for a bather who is reported missing, and who was last seen in the water, and the exertion of every effort, without a moment's delay, to rescue him.^^^ § 999. Further Illustrations — Proprietors Exonerated. — On the other hand, the proprietors of such places will not be liable for an accident which happens in consequence of an event which would not be foreseen by the exercise of reasonable care and foresight, — as where a crowd of people attending a public celebration on certain pleasure grounds on which was a hotel crowded during an afternoon storm in such numbers upon the piazza of the hotel, which was strong enough for ordinary purposes, that it broke down, injuring the plaintifE.^'^ So, where the owner of a building lets it to another to be used for a public exhibition and it breaks down in consequence of the fault of the ==" Schofield V. Wood, 170 Mass. s. c. 69 N. W. Rep. 757. Upon the 415; s. c. 49 N. E. Rep. 636. question whether the lessor or les- ''^'Lane v. Minnesota State Agri. see of a building is liable for the See, 62 Minn. 175; s. c. 24 L. R. A. breaking down of a platform, injur- 708; 64 N. W. Rep. 382. ing a patron of the show, it has been '^' Brotherton v. Manhattan Beach held that, in a case where a building Improve. Co., 50 Neb. 214; s. c. 69 has been leased for four nights in N. W. Rep. 757; affirming on rehear- consideration of the lessor receiv- ing 48 Neb. 563; s. c. 67 N. W. Rep. ing all the gate money when a given 479; 33 L. R. A. 598. amount has been reached, the lessor ^° Brotherton v. Manhattan Beach is liable to the person injured, — Impr. Co., 50 Neb. 214; s. c. 69 N. whether the agreement will be re- W. Rep. 757; aff'g on rehearing 48 garded as a lease, or a license, or Neb. 563; s. c. 67 N. W. Rep. 479; whether the lessor was negligent or 33 L. R. A. 598. not: Oxford v. Leathe, 165 Mass. ^'Brotherton v. Manhattan Beach 254; s. c. 43 N. B. Rep. 92. Improve. .Co., 48 Neb. 563; s. c. 33 ==^ Converse v. Walker, 30 Hun (N. L. R. A. 598; 67 N. W. Rep. 479; Y.) 596. afC'd on rehearing in 50 Neb. 214; 916 INJURIES FEOM DEFECTS IN PREMISES. [2d iSd lessee, or in consequence of the manner in which the premises we»t) used by the lessee, the owner will not be liable to one injured thereby.^^^ It has been held that a fair association discharges its duty with respect to protecting spectators from injury by unruly horses en^ tered in a race, where it provides a "grand stand" from which the race can be viewed, and has enclosed the course on both sides by a good pine railing two by four inches, nailed to posts planted in the ground, and three and a half or four feet high.' 234 § 1000. Injuries in and about Public-School Buildiriifs. — The lia- bility of municipal corporations or public boards to which is commit- ted the duty of maintaining public schools rests on different princi- ples, which will be discussed in a future volume, when dealing with the subject of the liability of municipal corporations for negligence. In Massachusetts, a town which has assumed the duty of school-districts is not liable for an injury sustained by a scholar attending the public school from a dangerous excavation in the school-house yard, left there by the negligence of the town officers j''^' nor is a city which maintains public schools, under a duty imposed by general laws, liable for an injury happening to a child in consequence of the unsafe con- dition of a staircase in one of its school-houses.^'® These decisions rest upon the idea that a municipal corporation is not answerable in damages for the torts of its agents while acting in a public or govern- mental capacity. This doctrine is repudiated by some of the Amer- ican courts.^'^ An action has been maintained in the Superior Court of New York City against the Board of Education of that city, in its corporate capacity, for an injury sustained by falling into an un- guarded opening in the school-house yard.^'* There also a public officer, or the members of a public board, charged by law with the per- formance of a public duty, and provided with the means of obtaining funds for that purpose, are answerable in damages to any individual ™ Edwards v. New York &c. R. death of a boy while swimming in a Co., 25 Hun (N. Y.) 634. As to the pond upon such grounds, — see Le- liability of the landlord in such Grand v. Wilkes-Barre &c. Traction cases, see post, § 1154, et seq. Co., 10 Pa. Super. Ct. 12; distinguish- "* Hallyburton v. Burke County ing Barthold v. Philadelphia, 154 Pa. Fair Assc, 119 N. C. 526; 26 S. E. St. 109; s. c. 26 Atl. Rep. 304. Rep. 114; 38 L. R. A. 156. That the "^'Bigelow v. Randolph, 14 Gray proprietors of a race course are not (Mass.) 543. liable for injury caused by a runa- ^="11111 v. Boston, 122 Mass. 344; way horse upon their grounds be- s. c. 2 Thomp. Neg., 1st ed., p. 698. cause they left the horse unguard- '^ For a verification of this state- ed, — see Hart v. Washington Park ment we must refer the reader to a Club, 54 111. App. 480; s. c. aff'd 157 future volume, where an attempt is 111. 9; 41 N. E. Rep. 620. That a made to discuss the subject fully, street railway company, owning pic- ^' Donovan v. Board of Education, nic grounds is not liable for the 55 How. Pr. (N. Y.) 176. 917 1 Thomp. Neg.] care op real property. who has sustained an injury by reason of their failure to perform such duty.^'° Upon this principle, where a teacher sustained an injury from stepping through a hole in the iloor of the school-room, she re- covered damages from the school-trustees individually, which was affirmed by the Supreme Court; but this judgment was reversed by the Court of Appeals-, on the ground that the liability was that of the corporation, and not that of the individual directors, who acted, not as officers of the law, but as agents of the corporation.^*" In Iowa, a suit against a school-district for an injury to a child, received from the machine of a well-borer while boring a well in the school-house yard, failed because the negligence was that of an independent con- tractor. ^^^ Outside of the question of the liability of a public board to a private person for an injury sustained through the mere non- feasance of the board, a Canadian court has held that where the su- perintendent of a coal company went to a school-house to look at the coal bins for the purpose of deciding how he could best deliver certain coal ordered of his company by the school board, the visit being made before the time arranged for the delivery and without the knowledge of the board, and who was injured by falling into an un- guarded hole in the cellar, — could not recover damages from the board. The reason was that the act of the plaintiff in entering the building at a time when neither the defendants, nor any one in their employment had any reason to expect him, was a purely voluntary act on his part, and without any invitation of any kind from the defend- ants or from any one on their behalf. That being so, there was no breach of duty in failing to have the premises in any particular condi- tion for his safety and protection.^* ^ § 1001. Injuries from Defects in Public Hospital Buildings. — A city hospital was maintained by appropriations from the city, dona- tions, and fees, and governed by a board of trustees. A person visit- '=' Adsit V. Brady, 4 Hill (N. Y.) the employment? And was not this 630; Robinson v. Chamberlain, 34 one of such risks? It was, unless N. Y. 389 ; Hover v. Barkhoof , 44 the defect was a latent one, of which N. Y. 113; McCarthy v. Syracuse, 46 she did not know, but of which N. Y. 194; Clark v. Miller, 54 N. Y. they knew, or with reasonable dili- .528. gence might have known: Seymour ™Bassett v. Fish, 12 Hun (N. Y.) v. Maddox, 16 Q. B. 326; 20 L. J. 209 (reversed, 19 Alb. L. J. 160). (Q. B.) 327; 15 Jur. 723. This ques- Merwin, J., dissented in the Su- tion the Court of Appeals appears preme Court, on the ground that the to have resolved in her favor, but duty to repair was on the corpora- upon doubtful grounds: 19 Alb. L. tion, and not on the trustees per- J. 160. sonally. The case is not clear, on an- ^' Wood v. Independent School other ground. Was not the plaintiff District, 44 Iowa 27. the ser-yaji* of the defendants? Did ^*^ Rogers v. Toronto Public School she not accept the ordinary risks of Board, 23 Ont. App. 597. 918 INJUniKS FKOM DEFECTS IN PEEMISES. [2d Ed. ing the building on business was injured by reason of the unsafe con- dition of a stairway, caused by the negligence of the superintendent. It was held that the board of trustees was not liable/*^ — the reason being that laid down in Hill v. Boston/** and explained in the next preceding section, that a private action can not be maintained against a town or other quasi-'puhlie corporation for a neglect of public duty, unless such action is given by statute. A Canadian court has, how- ever, held that a city may be liable for the communication of disease to a person occupying an adjoining building, through negligence in the operation of a scarlet fever hospital and in the disinfection of the clothing of fever patients in an adjoining shed, forming part of the hospital premises.^*' § 1002. Liability of Railway Companies for Injuries through De- fects in their Stations and Grounds. — The principle that a person, while upon the premises of another by invitation, express or implied, is entitled to the exercise of due care on the part of the property owner for his protection, may be illustrated by a class of actions brought to recover damages for the failure on the part of railroad com- panies to maintain their stations in proper condition for the reception of passengers and those rightfully resorting there. It may be stated, as a general rule, that railway companies are bound to keep in safe condition all portions of their platforms and approaches thereto, to which the public do or wpuld naturally resort, and all portions of their station-grounds reasonably near to the platforms, where passengers, or those who have purchased tickets with a view to take passage on their ears, would naturally or ordinarily be likely to go.^*" The ques- tion whether a railway station has been constructed in a reasonably careful manner, for the purpose of protecting those entitled to its use within the above principle, is ordinarily a question for a jury, where there is evidence reasonably tending to the conclusion that it was dan- gerous or defective.^*^ § 1003. To what Class of Persons this Liability Extends. — In addi- tion to passengers upon the company's trains, all persons having duties =*' Benton v. Boston City Hospital Y.) 75; Pickard v. Smith, 10 C. B. Trustees, 140 Mass. 13; s. c. 54 Am. (N. S.) 470; Martin v. Great Nortli- Eep. 436. em R. Co., 16 C. B. 179; Clussman ="122 Mass. 344; s. c. 2 Thomp. v. Long Island &c. R. Co., 9 Hun (N. Neg., 1st ed., p. 698. Y.) 618. This question will be con- ^° Breux v. Montreal, Rap. Jud. sidered more fully in a future vol- Quebec, 9 C. S. 503. ume, under the title Carriers of Pas- ^ McDonald v. Chicago &c. R. Co., sengers. 26 Iowa 124, 145; Toledo &c. R. Co. ™ Stafford v. Hannibal &c. R. Co., v. Grush, 67 111. 262; Liscomb v. New 22 Mo. App. 333. Jersey &c. Trans. Co., 6 Lans. (N. 919 1 Tliomp. Neg.j cake of real property. to perform incidental to the departure and arrival of passengers, and all persons having business with the company, such as shippers and consignees of freight, are entitled to the use of the company's prem- ises, and to the same protection from injury as passengers while thereon.^''^ Thus, it has been held that a railway company is liable to a haclcman for an injury received while carrying a passenger to their depot for transportation, by stepping, without fault on his part, into a cavity in their platform, such defect being occasioned solely by want of ordinary care on the part of the corporation.^*" So, a consignee of freight who chose to unload the same himself, and, in so doing, stepped upon a piece of defective flagging, which gave way, in consequence of which he was injured, — was entitled to recover damages from the com- pany. Such a person was not a mere licensee, but engaged, with the consent and invitation of .the railway company, in a transaction of common interest to both parties. ^°'' § 1004. To what Persons this Liability does Not Extend. — ^But per- sons using the station merely by permission or sufferance, for example, those taking shelter in a storm, can not claim from the railway com- pany the exercise of even ordinary care; but they enjoy the license subject to its perils.^"*^ Thus, it has been held that a foot traveller, injured in the dark by falling through an open trap door while cross- ing the platform of a railroad station which the company allows peo- ple to use as a short cut between public streets, can not recover dam- ages from the company, although no light or barrier was placed at the opening. ^^'^ Similarly, a crowd having gathered at a railway station to witness the arrival of the president of the United States, the com- pany was held not liable to one of this number who was injured by the breaking down of the platform, even though the floor was not in a proper state of repair for its ordinary use.^'*' One who desires to take passage upon the cars must exercise his right to enter and remain in the station-house, in conformity with the due and reasonable regula- tions of the company as to his conduct while there; and he can not exercise it until a reasonable time next prior to the departure of the train on which he intends to go.' What is such a reasonable- time de- =i« Tobin V. Portland &c. R. Co., 59 =*» Tobln v. Portland &c. R. Co., 59 Me. 183; Holmes v. North-Eastern Me. 183. R. Co., L. R. 4 Bxch. 254; s. c. 38 L. ™ Holmes v. North-Eastern R. Co., J. (Q. B.) 161; 17 Week. Rep. 800; L. R. 4 Exch. 259. 20 L. T. (N. S.) 616; (affirmed in «' Pittsburgh &c. R. Co. v. Bing- the Exchequer Chamber, L. R. 6 ham, 29 Ohio St. 364. Exch. 123; 40 L. J. (Bxch.) 121); ^^Redigan v. Boston & M. R. Co., Texas &c. R. Co. v. Best, 66 Tex. 116j 155 Mass. 44 ; s. c. 14 L. R. A. 276 ; Hamilton v. Texas &c. R. Co., 64 28 N. E. Rep. 1133. Tex. 251; s. c. 53 Am. Rep. 756. ^=Gillis v. Pennsylvania R. Co., 59 Pa. St. 129. 920 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. pends upon the circumstances of each particular ease.^°* So, a per- son making a friendly visit to a telegraph operator in a railway sta- tion, has no right of action for an injury received in consequence of the station being demolished by a collision of trains.^''^ § 1005. Degree of Care Due to Persons Using Such Stations and Premises. — A railroad company is bound to use in the construction and maintenance of its station-house and premises only that degree of care which men of ordinary prudence are accustomed to employ in the like business. Their duty is simply to take reasonable care to keep their premises in such a state that those whom they invite to come there shall not be imduly exposed to danger. ^'^ Thus, a person came into the station of a railway company for the purpose of travelling by their line ; he made some inquiries respecting the departure of trains, and was directed by a porter of the defendants to look at a time-table suspended on a wall under a portico of the station. While there, a plank and a roll of zinc fell through a hole in the roof, upon him, and injured him. At the same time, a man was seen on the roof of the portico. In an action for this injury, the plaintiff was nonsuited; and in the Court of Queen's Bench this ruling was sustained, on the ground that there was no evidence which would have justified a jury in finding that the defendants were guilty of negligence. Blackburn, J., stated that the onus of proving the man on the roof to be a servant of the company was on the plaintiff, and he was not to be presumed to be so ; and further, that "in this case no duty is cast upon the railway company to insure that no plank shall fall."^''^ The fact that the edges of the steps of a staircase at a station were tipped with brass which had been worn smooth by use, and that the staircase had a wall on each side, without any hand-rail, was held no evidence of negli- gence, although some metal might have been used for this purpose which would not wear so smooth ; or, as Erie, C. J., said, a hand-rail "might be occasionally found convenient, — as, by a man with a wooden leg, or a very infirm person."^"* And so it is no evidence of negli- gence that a company allowed a weighing-machine to stand upon its ^Harris v. Stevens, 31 Vt. 79. s. c. 29 L. J. (Exch.) 94; Grafter v. ^Woolwlne v. Chesapeake &c. R. Metropolitan R. Co., L. R. 1 C. P. Co., 36 W. Va. 329; s. c. 16 L. R. A. 300; 1 Harr. & R. 164; 12 Jur. (N. 271; 12 Rail. & Corp. L. J. 21; 15 S.) 272; 35 L. J. (C. P.) 132; 14 S. E. Rep. 81. Week. Rep. 344; Toomey v. London ^»» Pittsburgh &c. R. Co. v. Brig- &c. R. Co., 3 C. B. (N. S.) 146. ham, 29 Ohio St. 374; Indiana &c. R. ""Welfare v. London &c. R. Co., Co. v. Hudelson, 13 Ind. 325; Wei- L. R. 4 Q. B. 693; s. c. 38 L. J. (Q. fare v. London &c. R. Co., L. R. 4 B.) 241; 17 Week. Rep. 1065; 20 L. Q. B. 693; Chicago &c. R. Co. v. Wil- J. (N. S.) 743. son 63 111. 167; Cornman r. Eastern ^Crafter v. Metropolitan R. Co., Counties R. Co., 4 Hurl. & N. 781; L. R. 1 C. P. 300. 921 1 Thomp. Neg. ] care of real property. platform, quite out of the course of travel, for the purpose of weigh- ing baggage, over which the plaintiff was pressed and injured by the crush of a large crowd, upon a holiday.^"* A company was held not responsible for injury to an illiterate person, who, in the night-time, in search of the water-closet, passed by the door having a light over it and the words, "For gentlemen," and, opening a door having over it the sign "Lamp-room," but no light above it, fell down some steps which led downwards immediately from the threshold. ^°'' § 1006. Illustrations of Negligence of Eailway Companies in this Particular. — The platforms of the station should be of sufficient width, — such that persons assembling thereon for the purpose of tak- ing or leaving trains may do so in safety. Thus, a person having pur- chased a ticket, passed over the main track of the station to a platform five and one-half feet in width, for the purpose of taking a train along- side, on the next tracki While standing on this platform, he was struck and injured by a train coming in on the main track. When a train stood upon each track, there was only a space of about two feet, in the clear, on this platform. The court held that the construction and use of so narrow a platform at a point where the trains passed each other was gross negligence; and furthermore, that the running of a train upon the main track while persons were getting on and off the other train was a wanton disregard of human life, amounting to will- ful negligence.^® ^ It is the duty of the railway company to have its station-houses open and lighted, and its servants present, for the con- venience of those who may wish to leave its trains or depart by the same.^®^ Therefore, to leave open a flight of stairs at the end of the depot, by which a person may descend into a pitfall, unless the place is lighted, is an example of negligence of this character.^^^ Similarly, an aged woman was put off at a station upon the defendant's road, in the night-time, which was neither open nor lighted, nor was there any one there to give her information as to where she might obtain shelter. She wandered awEy from the depot in search of the highway, and, re- turning about an hour afterwards, fell down a flight of steps upon the premises. It was held to be a proper question for the jury whether the absence of any light at the depot, or any person to give informa- tion, was negligence on the part of the defendant, and, if so, whether such negligence was the proximate cause of the injury; both of which ^' Cornman v. Eastern Counties R. ^^ Patten v. Chicago &c. R. Co., 32 Co., 4 Hurl. & N. 781. Wis. 524; Beard v. Connecticut &c. ^""Toomey v. London &c. R. Co., 3 R. Co., 48 Vt. 101; Knight .v. Port- C. B. (N. S.) 146. land .&c. R. Co., 56 Me. 234. ^•Chicago &c. R. Co. v. Wilson, 63 ^' 'Beard v. Connecticut &c. R. Co., 111. 167. 48 Vt. 101. 922 INJURIES FROJI DEFECTS IN PREMISES. [2d Ed. questions were answered in the affirmative.^ °^ Wherever passengers are accustomed to be received upon a train, whether at a station-house or at a water-tank outside of the station, or elsewhere, railroad com- panies are bound to keep in safe condition for transit, the ordinary space in which passengers go to and from the train, and the latter have the right to assume that the ground adjacent to the cars, within the limits of which persons necessarily and naturally go to and from them, admits of their getting safely out and in, even in a dark night.^"' But where a passenger, in a dark night, at a distance of several rods from the station, without sufficient reason, or any inquiry of any person who could give him needful information, alighted from the cars and fell into a cattle-guard a hundred feet distant from the station, the defendants were held not bound to keep this place in a safe condition for such use.^^° So, it has been held that a railroad company is liable for damage occasioned by negligence of its employes in leaving so wide a space between the rail and the planking in that part of its cotton-yard designed for hauling, that, while a teamster is using due care, his mule, in slipping upon the planking, catches his foot therein.^''' A railway company is not hound to fence its prem- ises about the station to prevent a passenger from taking a short cut across them at night, for the purpose of reaching the train sooner than by the customary way.^°* But if the company hold out an invitation to its patrons to make a "short cut" across their premises, they will be liable for defects at this point.^*° If the company have provided a safe and convenient mode of exit from their premises, it is the duty of passengers to leave by the way provided^ and they have no right to use a way of their own selection, unless there be a justifying necessity to escape from peril or injury to life or limb.^'" § 1007. Liability for Injuries Received upon Public Wharves and Piers. — The same duty and corresponding liability attach to the pro- prietors or lessees of public wharves and piers in ease of an injury, through non-repair or other negligence, to any person coming thereon '""Patten v. Chicago &c. R. Co., 32 Co., 6 C. B. (N. S.) 923. Wis. 524. ^"^ Longmore v. Great Western R. ="=Hulbert v. New York &c. R. Co., Co., 19 C. B. (N. S.) 183. 40 N. Y. 145. See also Foy v. Lon- ™ Pennsylvania R. Co. v. Zebe, don &c. R. Co., 18 C. B. (N. S.) 225; 33 Pa. St. 318; s. c. 37 Pa. St. 420; Nicholson v. Lancashire &c. R. Co., Forsyth v. Boston &c. R. Co., 103 3 Hurl. & Colt. 534. Mass. 510; Bancroft v. Boston &c. R. '™ Frost v. Grand Trunk &c. R. Co., Co., 97 Mass. 275. But see Gaynor 10 Allen (Mass.) 387; Murch v. Con- v. Old Colony &c. R. Co., 100 Mass. cord &c. R. Co., 29 N. H. 9. 208. As to entering and leaving by "" Central &c. R. Co. v. Gleason, an unprovided way, see ante, §§990, 69 Ga. 200. 991. 'Burgess v. Great Western R. 923 1 Thomp. Neg.] care of real property. upon lawful business.^^^ On principle, the owners of wharves are held to the same degree of care which attaches to carriers of passen- gers. In a leading case, it was said by an eminent judge that they were held to "the utmost care;'"^'''^ another learned judge quoted this language with approbation, though the case did not call for a de- cision on the point ;^'^ and another judge of reputation has said, quoting the same case, that, like all who are engaged in business which involves the personal safety of large numbers, proprietors of wharves should be held to the exercise of the strictest care."* A dock-owner who, for a reward paid him by a ship-owner, supplies a dock and a gangway to enable persons to pass to and fro between the land and the ship, is answerable in damages to any person who, having occasion to go on board the ship on business, is injured by the negligence of the dock-owner's servants in removing or placing the gangway in an in- secure position,^^' though he might not be so answerable to a mere volunteer going on board the ship without lawful business.^ ^* The case comes within the principle that persons inviting others on to their premises are responsible for anything in the nature of a trap.^'''' If a municipal corporation keeps a public wharf for profit, it is deemed, in respect of it, a private proprietor; its agents acting with reference to it do not act in a public or governmental capacity ; and hence the same liability to the public, or to individual members of the public, attaches to it, in respect of the care and management of such a wharf, as would attach to a private person under like circumstances.'''* It has been "' Carleton v. Pranconia Iron Co., ^' Black, J., in Pittsburgh v. Grier, 99 Mass. 216; Cannavan v. Conklin, 22 Pa. St. 54. 1 Daly (N. Y.) 509; s. c. 1 Abb. Pr. ="= Wendell v. Baxter, 12 Gray (N. S.) 271; Radway v. Briggs, 35 (Mass.) 494, 497, per Metcalf, J. How. Pr. (N. Y.) 422; s. c. 37 N. Y. ""Campbell v. Portland Sugar Co., 256; Moody v. New York, 34 How. 62 Me. 552, 564. Pr. 288; s. c. 43 Barb. (N. Y.) 282; "'> Smith v. London &c. Docks Co., Swords v. Edgar, 59 N. Y. 28; s. c. L. R. 3 C. P. 326. 1 N. Y. S. C. (T. & C), Addenda, 23; "" Smith v. London &c. Docks Co., 44 How. Pr. (N. Y.) 139; Wendell L. R. 3 C. P. 332, per Bovill, C. J. v. Baxter, 12 Gray (Mass.) 494; "'J6itZ.; Swords v. Edgar, 59 N. Campbell v. Portland Sugar Co., 62 Y. 28; Wendell v. Baxter, 12 Gray Me. 552; Barrett v. Black, 56 Me. (Mass.) 494. 498; Railroad Co. v. Hanning, 15 ""Pittsburgh v. Grier, 22 Pa. St. Wall. (U. S.) 649; Macauley v. New 54; Maxwell v. Philadelphia, 7 Phila. York, 67 N. Y. 602; Smith v. London (Pa.) 137; McGuiness v. New York, &c. Docks Co., L. R. 3 C. P. 326; 52 How. Pr. (N. Y.) 450; Moody v. s. c. 16 Week. Rep. 728; 18 L. T. New York, 43 Barb. 282; s. c. 34 (N. S.) 403; 37 L. J. (C. P.) 217; How. Pr. (N. Y.) 288; Taylor v. Buckbee v. Brown, 21 Wend. (N. New York, 4 E. D. Smith (N. Y.) Y.) 110,116; Thomas V. Henges, 131 559; Buckbee v. Brown, 21 Wend. N. Y. 453; s. c. 43 N. Y. St. Rep. (N. Y.) 110; Macauley v. New York, 288; 30 N. E. Rep. 238; aff'g s. c. 42 67 N. Y. 602. In an action for dock- N. Y. St. Rep. 28; 16 N. Y. Supp. age or wharfage, the defendant may 700; Leonard V. Decker, 22 Fed. Rep. recover damages sustained by him 741; Pennsylvania &c. R. Co. v. by the failure of the city to repair: Atha, 22 Fed. Rep. 920. Buckbee v. Brown, 21 Wend. (N. Y.) 924 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. held that this liability attaches to the person in actual possession of the wharf, irrespective of the question of ownership.^ ^® Such a lia- bility rests upon a lessee who is under covenants to repair, and who has the right to collect wharfage, although he may not have the exclusive possession. So held where the city of ISTew York leased certain wharves to the defendant for five years, he covenanting to repair.^'" And conversely, a lessor who has let a wharf and slip^ and delivered exclusive possession to a lessee, who covenants to repair, is not liable for damages that happen through obstructions that arise subsequently, of which the lessor has not notice.^ ^^ But, on obvious grounds, if the defect existed when the lease was made, a covenant of the lessee to re- pair will not relieve the lessor from liability to a person thereby in- jured.^*^ The owners and occupiers of docks are also liable for injuries to vessels mooring thereby, or coming into the slips attached to such docks by reason of sunken obstructions against which the vessel comes in contact.^^^ The lessee of a dock, knowing of such an ob- struction in a slip into which he invites vessels, becomes liable for his negligence in failing to remove it, if a vessel is thereby injured.^** § 1008. Liability ^or Injuries upon Toll-bridges. — A similar lia- bility attaches to the proprietors of toll-bridges over which the public are invited to cross, paying for the privilege. Such persons, while not insurers of the safety of the persons and property which cross their 110. A city gave A. a license to use ='=' Swords v. Edgar, 59 N. Y. 28; a wharf, A. paying a stipulated Moody v. New York, 43 Barb. (N. monthly sum for wharfage, and sub- Y.) 282; s. c. 34 How. Pr. (N. Y.) sequently authorized a railroad com- 288. Circumstances under which pany to build tracks along the one who lets a dock to another, wharf, and later to widen the tracks, which projects beyond the land of While thus engaged the railroad the lessor, is liable for the death of company removed certain posts used a servant of his lessee occasioned by for mooring vessels, and allowed a defect in that part of the dock deiris to accumulate on the wharf, which was upon the land of the A. notified the city to replace the other proprietor: Thomas v. Henges, posts and remove the debris, but it 131 N. Y. 453; s. c. 43 N. Y. St. Rep. neglected to do so, and, by a sudden 288; 30 N. E. Rep. 238; aff'g 42 N. rise of the river, certain rafts of A., Y. St. Rep. 28; 16 N. Y. Supp. 700. attached to the wharf, broke away Steamboat company placing a piece and were lost. It was held that the of shafting upon a wharf, is not lia- city was liable, and that A. was not ble for injuries to a boy who gets guilty of contributory negligence in upon such shafting for the purpose allowing the debris to remain after of seeing what he can see, etc., notice: Allegheny v. Campbell, 107 Memphis &c. Packet Co. v. Fogarty, Pa. St. 530. 9 Ohio C. C. 418; s. c. 2 Ohio Dec. "» Cannavan v. Conklin, 1 Daly 706. (N. Y.) 509; Leonard v. Decker, 22 ^ Mersey Docks Trustees v. Gibbs, Fed. Rep. 741; Onderdonk v. Smith, L. R. 1 H. L. 93; s. c. 11 H. L. Cas. 21 Fed. Rep. 588. 686; 1 Thomp. Neg., 1st ed., p 581. '«°Radway v. Briggs, 35 How. Pr. =** Onderdonk v. Smith, 21 Fed. (N. Y.) 422; s. c. 37 N. Y. 256. Rep. 588. '" Moore v. Oceanic Steam. &c. Co., 24 Fed. Rep. 237. 925 1 Thomp. Neg.j care of real property. bridges, in the same sense as common carriers of goods, are, it has been held, bound at least to ordinary care respecting the safety of their bridges;^*" and, upon principle, they should be held to the same meas- ure of diligence as carriers of passengers.^** § 1009. Liability for Failing to Provide Pire-escapes. — Judicial opinion has been to the effect that the proprietor of a factory, hotel, or other large building, is not liable for the death or injury of those who may be in it, in consequence of its taking fire by reason of the fact of his failing to provide suitable fire-escapes, unless this duty is imposed upon him by a statute.^*^ The soundness and justice of these de- cisions may well be questioned; and the legislatures have interposed, it may be assumed, in every State of the Union, and reversed the rule by imposing upon the owners of buildings this obligation, under suit- able penalties. These statutes generally devolve the duty of provid- ing such fire-escapes and keeping them in repair upon the owner of the building, and not upon tenants who may occupy it.^*^ Such repairs, it has been reasoned, are not within the range of ordinary repairs which a tenant, in the absence of an agreement to the contrary, is re- quired to make. Nevertheless, the land-owner owes no duty to the tenant or to his family to keep the fire-escape in repair beyond what is necessary to its efficient use, for the purpose for which it was con- structed, — that of escaping from the building in case of its taking fire. He is not under a duty to his tenant or his family, to keep the platform of the fire-escape in such repair that it may be used as a halcony, nor to guard it so that it may be safely used for this purpose by the chil- dren of the tenant ; so that, if a. child of the tenant, without license or permission from the landlord, passes out of a window upon the plat- form of the fire-escape and is injured in consequence of its being out of repair, the landlord is not liable to pay damages for the injury. Such a case, according to the reasoning of the court, does not come within the rule under which the owner or occupier of premises is under a duty to maintain them so that they will not be dangerous to those who come upon them with his consent, express or implied.^*" But under such a statute, the owner of a house who has neglected to =»> Frankfort Bridge Co. v. "Will- '™ That the Ohio statute of 1883 iams, 9 Dana 403; Townsend v. Sus- (80 Ohio Laws 188), imposing upon quehanna Turnpike Road Co., 6 the owners of factories and work- Johns. (N. Y.) 90. shops the duty of providing fire es- 280 rpjjg liability of municipal cor- capes, is not applicable to the owners porations for the non-repair of of premises in possession of lessees, bridges is considered in a subse- — see Lee v. Smith, 42 Ohio St. 458; quent volume. s. c. 51 Am. Rep. 839. '^ Jones V. Granite Mills, 126 Mass. ^» McAlpin v. Powell, 70 N. Y. 126; 84, 88, 89; Keith v. Granite Mills, reversing s. c. 1 Abb. N. Cas. (N. Y.) 126 Mass. 90, 93. 427. 926 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. provide it with a fire-escape, as required by the statute, is liable for the death of an occupant who has been smothered in a fire in the house in consequence of not being able to escape, where the circum- stances are such that an escape would have been possible had the proper fire-escape been constructed.^^" The Supreme Court of Ehode Island have, however, construed a similar statute in that State as a police measure intended for the general safety, and as not creating a duty which could be made the subject of an action by individuals ; so that an operative employed in a building having no fire-escapes could not maintain an action against the owner for an injury sustained be- cause he was compelled to jump from the building.^'^ Subdivision 5. — Liability for Endangering Passage over Private Ways. Section 1012. Land-owner liable for endan- gering the passage over pri- vate roads or ways. 1013. American cases where it was so held. 1014. English cases so holding. Section 1015. Decisions exonerating the owner of a private way from liability. 1016. Duty to warn the public of revocation of license to come upon one's premises. 1017. This duty applied to railroad companies. § 1012. Land-Owner Liable for Endangering the Passage over Pri- vate Eoads or Ways. — If a man establishes a private road, path or other way upon his own ground, and impliedly invites the public to use it, he is, according to some holdings, under an obligation to exercise reasonable care and diligence to keep it in a safe condition for the benefit of any one who may elect to use it, — that is to say, to keep it free from dangerous obstructions, pitfalls, etc.^®^ =»» Willy V. Mulledy, 6 Abb. N. Cas. (N. Y.) 97. If the statute requires such fire escapes "as shall be direct- ed and approved by the commission- ers," a general order by the commis- sioners, directing how they shall be constructed, is, it seems, sufficient for making the owner liable for not providing them: Willy v. Mulledy, 6 Abb. N. Cas. (N. Y.) 97. =" Grant v. Slater Mill &c. Co., 14 R. I. 380. This case is a violation of the principle that the failure to perform a duty, designed for the protection of individuals distribu- tively, gives a right of action to any individual who is injured by such failure: Ante, § 12. === Corby v.. Hill, 4 C. B. (N. S.) 556; 4 Jur. (N. S.) 512; 27 L. J. (C. P.) 318; Clark v. Chambers, 3 Q. B. Div. 327; 7 Cent. L. J. 11; 17 Alb. L. J. 505; Tomle v. Hampton, 129 111. 379; s. c. 21 N. E. Rep. 800; Nave V. Flack, 90 Ind. 205; s. c. 46 Am. Rep. 205; Graves v. Thomas, 95 Ind. 361; s. c. 48 Am. Rep. 727; Camp- bell V. Boyd, 88 N. C. 129; s. c. 43 Am. Rep. 740. Compare Hydraulic Works V. Orr, 83 Pa. St. 332; Gram- lich V. Wurst, 86 Pa. St. 74. Where the plaintiff, having a right to pass 927 1 Thomp. Neg.J care of real property. § 1013. American Cases where it was so Held. — It was so held where a land-owner oonnected a part of his premises with a public sidewalk, thereby inviting the public to treat the part so connected as belonging to the public sidewalk, but left a hole therein, into which a street passenger fell to her injury j^"^ where the owner of a warehouse maintained a driveway for the use of customers coming with grain to his warehouse, but permitted a defect to exist therein, to the injury of one who was bringing a load of grain to his warehouse at his re- quest ;^** where the owner of a city lot, across which there was a path which had been generally used by the public for eight years, exca- vated, in wet weather, a cellar near the path, and neglected to erect any guard or warning, into which a traveller fell on a dark night ;^°'' where an owner laid out and paved a sidewalk on his own land, and allowed it to remain apparently as a portion of the street, and in- tended to be used as a sidewalk, and a person so using it was injured by a defect in it;^''° where a person negligently left a ladder on a nar- row sidewalk or gangway, where people were accustomed to pass, in consequence of which one attempting to pass was injured, there being no defense on his part that the gangway was private property belong- ing to other persons and was not dangerous ;^°'' and where a land- owner opened a private "way for his own convenience and built a bridge over a creek which ran across it, and allowed the public to use it, know- ing the bridge to be unsafe, though it was apparently in good condi- tion.^^« § 1014. English Cases so Holding. — And coming now to some of the English cases, in Corhy v. HiW^^ there was a road leading from over the defendant's premises, sued who desired to use It. A child was for injuries sustained from certain going through the alley to get some iroken steps, and the evidence was leather at the shop to play with, conflicting as to whether they were when the wall, which was out of re- properly guarded, and whether pair and dangerous, fell and injured there was a notice warning people to the child. It was held that the keep off, — it was held a case for a court was justified in refusing to jury: Baltimore &c. R. Co. v. Rose, direct a verdict for defendant: 65 Md. 485. Evidence under which Schilling v. Abernethy, 112 Pa. St. the question of negligence in leav- 437; s. c. 56 Am. Rep. 320. mg a coal-hole in a tenement house, ^"^ Tomle v. Hampton, 129 111. 379 ; unguarded, should have been sub- s. c. 21 N. E. Rep. 800. mitted to the jury: Delory v. Canny, ^"Nave v. Flack, 90 Ind. 205; s. c. 144 Mass. 445. Evidence under 46 Am. Rep. 205. which the question of negligence in ^"'Graves v. Thomas, 95 Ind. 361; allowing the contents of a water- s. c. 48 Am. Rep. 727. closet to flow down a stairway, in ^"Holmes v. Drew, 151 Mass. 578; a tenement house, rendering it slip- s. c. 25 N. E. Rep. 22. pery and dangerous, should have '" Clarke v. Rhode Island Electric been submitted to a jury: Walton v. &c. Co., 16 R. I. 463; s. c. 17 Atl. Kane, 4 Misc. (N. Y.) 296; s. c. 53 N. Rep. 59. Y. St. Rep. 429; 23 N Y. Supp. 1029. ''•^ Campbell v. Boyd, 88 N. C. 129; An alley on Sefendant's land was an s. c. 43 Am. Rep. 740. open way to a workshop used by all '"Corby v. Hill, 4 C. B. (N. S.) 928 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. the turnpike to a lunatic-asylum, along which road persons having occasion to go to the building were accustomed to pass, by leave of the owners of the soil. The defendant, being engaged in some work on the adjoining land, obtained leave from the owner thereof to place slates and other materials there. Under that leave, the defendant placed a stack of slates and other materials in the carriage-way, with- out any light for the warning of travellers, by reason of which the plaintiff's horse and carriage were driven against this obstruction, to his damage. The court was clear upon the point that the proprietors of the soil had held out an allurement whereby the plaintiff was in- duced to come upon the place in question. Under these circum- stances, they could not lawfully have thus obstructed the way ; there- fore the defendant, a third person, could not acquire the right to do so under their license or permission. In the case of Clarh v. Cham- hers/°° the defendant had erected across a private road, over which he, with others, had merely a right of passage, a barrier composed of hurdles and chevaux-de-frise, leaving an opening in the center for the passage of carriages, which, when not in use, might be closed by bars. The plaintifE, while rightfully passing over this way, was injured by coming in contact with one of the spikes of the chevaux-de-frise, some person unknown having wrenched the barrier from its usual position in the road, and placed it in an upright position on the footpath alongside. Cockburn, C. J., in delivering the opinion of the court, stated that although no negligence was imputable to the defendant, yet having unlawfully obstructed the way, he was bound to anticipate the removal of the barrier by some one entitled to use the way; and as a hurdle armed with spikes, thus thrown aside, was likely to become a dangerous obstruction, wherever placed, he should be held liable as the original author of the mischief. § 1015. Decisions Exonerating the Owner of a Private Way from Liability. — Some of the foregoing decisions are difficult to reconcile with the general rule of law already stated, that bare licensees take the premises of the land-owner as they find them, and come upon them at their own risk, and that he is under no duty to exert himself to keep them safe for their benefit. If the land-owner has been in the habit of allowing the public to make use of a private way while it was safe, and has, by some affirmative act of his awn, endangered the passage upon it without giving the public any warning, — as by dig- 556; 4 Jur. (N. S.) 512; 27 L. J. ™3 Q. B. Div. 327; 7 Cent. L. J. (C. P.) 318; Clark v. Chambers, 3 11; 17 Alb. L. J. 505. Q. B. Div. 327; 7 Cent. L. J. 11; 17 Alb. L. J. 505. VOL. 1 THOMP. NEG. — 59 929 1 Thomp. Neg.] cake of keal property. ging an unguarded pit by the side of it, — it should seem that he ought to be held liable in damages for any injury thereby happening to any member of the public, on the ground that he has been guilty of a plain violation of social duty. But where a man establishes a private way of any sort for his own purposes merel}^, the mere fact that he is not so unneighborly as to exclude the public from the use of it, ought not, it should seem, to place him under any particular duty to care for it, to the end of promoting their safety. He gratuitously allows them to use what he has provided for himself, and that ought not to raise any duty on his part to do more for them than he does for himself. We accordingly find a class of cases which apply to the use of private ways, the doctrine already considered with reference to trespassers, intruders, and bare licensees, and which exonerate the land-owner from liability for not taking any special care or pains to see that such ways are safe for their benefit. ^"^ Under any theory where the defect in the private way is a patent one, which any one can see and against which any one can guard himself, then, any one using the way takes the chances of danger and uses it at his own risk, even though, as in one case, he may be a guest at a hotel. ^"^ The Massachusetts eases, above cited, place the rule on the clearer ground, that a. bare licensee, using a private way over the land of another, has no right of action against that other for any damage accruing from the use of the way, provided the owner of the way uses no active force against him.®"^ § 1016. Duty to Warn the Public of Revoeation of License to Come upon One's Premises.^ — It is a sound and just conclusion that '" Reardon v. Thompson, 149 Mass. defective, and decaying plank side- 267; s. c. 21 N. E. Rep. 369 (passage walk along one side of a private way, ways between private houses in a to remain contiguous to the rear city) ; Stevens v. Nichols, 155 Mass. side of premises which have been 472; s. c. 15 L. R. A. 459; 29 N. E. under lease for several years, with Rep. 1150; Cahill v. Layton, 57 Wis. no means of access from the prem- 600; s. c. 46 Am. Rep. 46 (strong ises to the sidewalk, will not render and learned opinion by Cassoday, J., the owner of the premises liable for reviewing the authorities, and a personal injury sustained by one holding that the complaint stated passing over the sidewalk, as a re- no cause of action; Orton, J., 'dis- suit of its defective condition, when senting) ; Eisenberg v. Missouri &c. there is nothing in the evidence to R. Co., 33 Mo. App. 85; Cusick v. show that defendant either built the Adams, 115 N. Y. 55; s. o. 23 N. Y. sidewalk, or held out any invitation St. Rep. 548; 40 Alb. L. J. 48; 21 N. or inducement to the plaintiff to E. Rep. 673 (defective bridge on a pass over it: Brinbaum v. Crownin- private way connecting with a high- shield, 137 Mass. 177. That the way). mere fact that the owner of a sand ™2 Ten Broeck v. Wells, Fargo & pit allowed the public to cross the Co., 19 Wash. L. Rep. 807; s. c. 47 lot whereon it was situated, im- Fed. Rep. 690. posed upon such owner no duty to ^' Reardon v. Thompson, 149 Mass. protect an excavation maintained 267- s c. 21 N. E. Rep. 369; Stevens therein, — see Newdoll v. Young, 80 V Nichols, 155 Mass. 472; s. c. 15 Hun (N. Y.) 364; 61 N. Y. St. Rep. L. R. A. 459; 29 N. E. Rep. 1150. 824; 30 N. Y. Supp. 84. The mere fact of allowing an old, a This section is cited in § 852. 930 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. an owner or occupier of land who has given to the public, or to a par- ticular person or corporation a license to come upon or to cross his premises, or to establish a private way or even a railway thereon, must, before exercising his power to revoke such license, anticipate that danger may accrue therefrom to those who have been accustomed to use the license, and is therefore bound to notify them of such revoca- tion and to warn them of any fence, obstruction, or other dangerous means to which he may have resorted to exclude them from his prem- ises.'"* So, if the public have been accustomed to drive, though with- out right, across the land of a proprietor, who, in order to stop them from doing so, stretches across the travelled way, without any warn- ing to the public, a barb wire fence which is invisible after dark, and, not knowing the existence of the obstruction, a traveller drives upon it, injuring his horse, he will have an action for damages against the land-owner.'"° On the other hand, if an old road on private property within the limits of a city has been fenced for three months, the land- owner will not be liable to one injured by driving upon the fence while attempting to use the road, especially where there were other streets regularly laid out for such public use along which he might have '"Wheeler v. St. Joseph Stock- yards &c. Co., 66 Mo. App. 260, 272; s. c. 2 Mo. App. Rep. 1309; Lepnick V. Gaddis, 72 Miss. 200; s. c. 26 L. R. A. 686; 16 South. Rep. 213; Morrow V. Sweeney, 10 Ind. App. 626; s. c. 38 N. E. Rep. 187; Hester v. Wind- ham, 27 S. W. Rep. (Tex. Civ. App.) 1078 (no off. rep.) (doctrine recog- nized). It was so held where the owner of land revoked a license to the public to use a railroad, which had been built over his land: Wheel- er V. St. Joseph Stockyards &c. Co., 66 Mo. App. 260, 272; s. c. 2 Mo. App. Rep. 1309. So, if a land-owner under- takes to stop travel over a bridge which he has licensed the public to use, by removing a plank from the floor of the bridge, he is bound to give some warning of its removal: Wheeler v. St. Joseph Stockyards &c. Co., 66 Mo. App. 260, 272; s. c. 2 Mo. App. Rep. 1309. So, if a vacant lot has long been used as a public com- mon, or as a part of a public high- way, and if a building has stood upon the lot having a cistern under it, which building has burned down, and if the owner of the lot removes guards and advertisements warning the public of the danger of falling into the cistern, — he may, for that reason, become liable to one who falls into the cistern and is injured while attempting to use the high- way on a dark night: Lepnick v. Gaddis, 72 Miss. 200; s. c. 26 L. R. A. 686; s. c. 16 South. Rep. 213. On the other hand, we find a holding to the effect that a land-owner who re- moved a plank from the floor of a bridge for the purpose of stopping travel across it by the public, under a previous license, was not liable for injuries due to such removal, where he placed the proper barrier across the bridge at the approach, and it was afterwards removed by a wrong-doer, — ^unless such land-owner had notice of the removal for a suffi- cient time before the injury to en- able him either to restore the bar- rier or to place a watchman at the bridge : Wheeler v. St. Joseph Stock- yards &c. Co., 66 Mo. App. 260, 272; s. c. 2 Mo. App. Reg. 1309. ^°' Morrow v. Sweeney, 10 Ind. App. 626; s. c. 38 N. E. Rep. 187. And so where, under similar circumstances, the land-owner, without giving no- tice, stretched a single wire across the road which the public had made over his land, against which the plaintiff drove in the dark: Cars- kaddon v. Mills, 5 Ind. App. 22; s. c. 31 N. E. Rep. 559. 931 1 Thomp. Neg.] care of real property. driven to his destination. The reason is that the open and notorious fencing-up of the private way for such a length of time is of itself tantamount to a public warning of the fact, and creates a presumption that the fact is known.^"' § 1017. This Duty Applied to Railroad Companies.* — For example, a railroad company which keeps its passenger depot and its adjacent premises uninclosed, and leaves open a car standing on its track near the depot, so as to invite children to enter, owes to such children the duty of having some one present to warn them of their danger before coupling the train to such car.^"' It has been held that a notice by a railroad company, warning a person not to cross its yard, is effectual to rebut any presumption of a license to cross the yard arising from a custom of crossing, and to exonerate the company from liability for the death of such person caused by falling into a pit maintained in the yard, although the purpose of the warning was to prevent the theft of its property.^"' Subdivision 6. — Contributory Negligence of the Person Injured. Section Section 1019. Acts imputing contributory 1021. Circumstances under which negligence to the person in- contributory negligence not jured. imputed as matter of law. 1020. Instances of contributory neg- 1022. Circumstances under which ligence, continued. contributory negligence a question for the jury. § 1019. Acts Imputing Contributory Negligence to the Person In- jured.'' — In the following cases the contributory negligence of the per- son injured has been held a defense: — Where the plaintiff fell down a hoist-way, carelessly left open, without looking to see whether it was open or closed ;^°^ where the plaintiff, a woman, while about to descend a well-lighted stairway, in the act of reaching to take hold of the post '" Galveston Land &c. Co. v. Levy, keep a warning signal to designate 10 Tex. Civ. App. 104; s. c. 30 S. W. an ashpit located btween its tracks Rep. 504. (Holmes v. Pennsylvania Co., 13 a This section is cited in § 852. Ohio C. C. 397; 7 Ohio Dec. 165), "" Louisville &c. R. Co. v. Popp does not seem to be sound or just. (Ky.), 27 S. W. Rep. 992; s. c. 16 ™ Anderson v. Northern &c. R. Ky. L. Rep. 369; 10 Am. Rail. & Co., 19 Wash. 340; s. c. 53 Pac. Rep. Corp. Rep. 280 (not to be off. rep.). 345. The decision of a court of Common b This section is cited in §§ 184, fleas in Ohio that a railroad com- 447, 1086. pany owes no duty to the employes '" Brenstein v. Mattson, 10 Daly of another company which main- (N. Y.) 336. eains tracks in the same yard, to 932 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. and rail to guide herself down, fell and was injured ;^^'' where a woman undertook to leave a public dining-room, where she was acccustomed to dine, by a side door, and was precipitated down a flight of stairs leading into a cellar;'^'- where the plaintiff, on leaving a public hall, instead of taking the lighted stairway of which he had knowledge, took a side door, stepped upon a dark platform supposing that it was protected by a rail, and fell therefrom ;^^^ where the customer of a merchant chose to pass through the wareroom of the latter into the store, and fell down a cellar stairway, by reason of not looking ahead of him;'^* where a customer of a merchant stumbled over some trucks and scales used in his store, which were in full sight and within public observation;^^* where the guest of a tenant walked through a door into a perfectly strange and dark place, without knowing where he was going, and fell down a flight of stairs ;^^° where a man, attempting to cross the deck of a vessel which was well lighted with electric lights, and which had a clear passage-way of five feet from an open hatchway, which hatchway was lighted with a lamp hanging from a mast, and which had a coaming of about twelve inches, — fell into the hatch- way ;^^° where a licensee fell into an open hole in the defendant's land, not concealed otherwise than by the darkness ;^^^ where one attempted, in the dark, to pass an open cellar-way in a sidewalk, knowing, but for the time forgetting, its existence.^^^ § 1020. Instances of Contributory Negligence, Continued.^^ — And also in the following cases: — Where an uninvited person enters the private apartments of another, and, retiring therefrom, mistakes the door and falls through it and is injured ;^^° where the plaintiff placed his machinery under a roof which he knew to be lealcy, — the conclu- sion being that he was precluded from recovering damages from the contractor through whose negligence the roof was leaky ;^^" where a man, carrying a heavy trunk for hire from a dwelling-house and de- clining assistance, broke through the platform a few steps above the sidewalk, and fractured his leg, — the owner not knowing of any de- ™Pinney v. Hall, 156 Mass. 225; ""Anderson v. The E. B. Ward, s. c. 30 N. E. Rep. 1016. Jr., 38 Fed. Rep. 44. ^' Gaffney v. Brown, 150 Mass. ™ Reardon v. Thompson, 149 479; s. c. 23 N. B. Rep. 233. Mass. 267; s. c. 21 N. E. Rep. 369. =" Johnson v. Wilcox, 135 Pa. 217; "'Bruker v. Covington, 69 Ind. 33; s. c. 19 Atl. Rep. 939. s. c. 35 Am. St. Rep. 202. The author °" Johnson v. Ramberg, 49 Minn, is of opinion that this case was not 341; s. c. 51 N. W. Rep. 1043. well decided. ^"Hart V. Grennell, 122 N. Y. 371; a This section is cited in § 1086. s. c. 33 N. Y. St. Rep. 553; 25 N. B. ="= Schmidt v. Bauer, 80 Gal. 565; Rep. 354. s. c. 22 Pac. Rep. 256; 5 L. R. A. ""> Hilsenbeck v. Guhring, 131 N. 580. See ante, § 946. Y. 674; s. c. 43 N. Y. St. Rep. 936; »^»Muth v. Frost, 68 Wis. 425; s. 30 N. E. Rep. 580. c. 32 N. W. Rep. 231. 933 1 Thomp. Neg.] care of real property. feet therein, and no defect therein being visible or apparent ;''^^ where a guest at a hotel voluntarily elected to accept a room which he knew to be dangerous because of its defective construction, — this case pro- ceeding on the ground of accepting the risk;^^^ where a person employed upon the upper floors of a large building in process of erec- tion, walked along a narrow beam, for the purpose of reaching some planks and passing them to the floor above, and fell from being struck by an elevator in plain sight, — his act being regarded as negligence per se;^^^ where a female customer of a store, who was familiar with the premises, went upon a stoop in front of the store to examine some goods which were there displayed, and, while paying no attention to where she was going, fell by reason of her foot slipping from a coping, a few inches above the adjoining sidewalk;''^* where a person who knew the location of a railway turntable on the depot grounds of the railway, near its tracks, and which was a conspicuous object, never- theless walked into it on a dark night, while attempting to pass along the road;'^'' where a boy six years old went upon a private enclosure to play in an excavation which caved in, injuring him.^^° § 1021. Circumstances under which Contributory Negligence Not Imputed as Matter of law. — Without going into details, it may be said that the courts have held that contributory negligence is not imput- able, as matter of law, to the person injured, under the following cir- cumstances: — Where the plaintiff, coming away from an evening en- tertainment in a public hall, slipped on snow and ice accumulated on the plank sidewalk in front of the door and was injured ;^^^ where one who had attended a meeting in a college building by invitation, was injured, while making his egress through a dark hall, by falling into a hole through the floor ;^^* where the plaintiff's cow, being driven from an open lot, where she was lawfully running at large, was in- jured by falling into an unguarded trench which the defendant had excavated in the street.^^' And so a spectator of a game of polo, in a building used for public exhibitions, who leaned over 'the guard rail ="' Baddeley v. Shea, 114 Cal. 1; === Early v. Lake Shore &o. R. Co., s. c. 33 L. R. A. 747; 45 Pac. Rep. 66 Mich. 349; s. c. 9 West. Rep. 863; 990. This case turned rather on the 33 N. W. Rep. 813. want of any negligence in the house ™Newdoll v. Young, 80 Hun (N. owner, than on the contributory neg- Y.) 364; s. c. 61 N. Y. St. Rep. 824; ligence of the person injured. 30 N. Y. Supp. 84. ="^ Glass v. Colman, 14 "Wash. 635; ^^Dewire v. Bailey, 131 Mass. 169; s. c. 45 Pac. Rep. 310. s. c. 41 Am. Rep. 219. ^^ Clancy v. Guaranty Const. Co., ™ Howe v. Ohmart, 7 Ind. App. 25 App. Div. 355; s. e. 50 N. Y; Supp. 32; s. c. 33 N. E. Rep. 466. 800. '™ Noblesville Gas &c. Co. v. Teter, '^Collins V. Mooney, 25 App. Div. 1 Ind. App. 322; s. c. 27 N. B. Rep. 187; s.'c. 49 N. Y. Supp. 341. 635. 934 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. of the gallery, to -(vatch the game, in the same manner in which other spectators were accustomed to do, having no notice or kaowledge that the rail was not strong enough to support the weight of the person leaning against it, and it broke,'^" was held not guilty of contributory negligence so as to bar his recovery for injuries so received. § 1022. Circumstances under which Contributory Negligence a Question for the Jury. — Contributory negligence has been held a ques- tion for a jury under the following circumstances: — Where a guest in a hotel fell down an open stairway while returning to his own room from the room of another guest, through a darh hallway, without call- ing for light or assistance ;^^^ where the plaintiff fell into an area-way in a sidewalk, left open and unprotected through the negligence of the city, the defendant in the action ;^^^ where a stevedore was injured while descending to the hold of a vessel, there being no light near the hatchway, and where the evidence did not clearly show that he was acquainted with the premises ;^^^ where a female plaintiff, injured in falling down a defective stairivay in a sidewalk, admitted that she did not look where she was putting her feet f^^ where one who was injured by falling through a trap-door, knew as much about the location of the door as did the owner, and knew that it was customary to use it at that time of day, and did not think, upon opening the door through which he entered the building, which was usually kept locked when the trap was open, to stop and see whether the trap was open before stepping in;^^^ where a woman whose ears were muffled came into a store where the floor had heen tahen up for repairs, and exclaimed that she was snow-blinded, and was warned in an ordinary tone of voice, of such opening, but immediately stepped into it;^^^ where a girl, being in a shop where she had no reason to apprehend danger, kept her eyes on articles which were there on exhibition, whereby she failed to perceive an opening in the floor, into which she fell;^'^ where the tenant of a building was trying to carry a stove across a balcony, which broJce down by reason of its weak condition, injuring ^° Schofield v. Wood, 170 Mass. '=' Smith v. Occidental & O. Steam- 415; s. c. 49 N. E. Rep. 636. That ship Co., 99 Cal. 462; s. c. 34 Pac. a customer on his first visit to a Rep. 84. store, who is not familiar with the =^* Cincinnati &c. R. Co. v. Claire, premises, may presume that they 6 Ind. App. 390; s. c. 33 N. E. Rep. are safe, in the absence of visible 918. evidence to the contrary, — see Ros- ^^Engel v. Smith, 82 Mich. 1; s. c. enbaum v. Shoffner, 98 Tenn. 624; 46 N. W. Rep. 21. s. c. 40 S. W. Rep. 1086. "Jones v. Charles H. Sagar Co., ^'^West V. Thomas, 97 Ala. 622; 59 Run (N. Y.) 627; s. c. 37 N. Y. s. c. 11 South. Rep. 768. St. Rep. 346; 14 N. Y. Supp. 57. ^"^ Denver v. Soloman, 2 Colo. App. ^' Hendricksen v. Meadows, 154 534; s. c. 31 Pac. Rep. 507. Mass. 599; s. c. 28 N. E. Rep. 1054. 935 1 Thomp. Neg.J care of real property. him, there being evidence that he knew of its weak condition, — the conclusion being that the defendant was entitled to have the jury instructed that the plaintiff could not recover if guilty of contribu- tory negligence ;^°* where a miner, entering the mine twenty minutes after a fuse had been lighted, was killed by the explosion of a dyna- mite cartridge ;^^^ where a boy, eight years of age, loitering in front of a building which was in the course of erection, took hold of the rope of a hoisting apparatus, which started and drew his hand into the wheel.»" Article V. Liability foe Injuries to Childeen. Section 1024. Liability of the owners and oc- cupiers of premises for In- juries to children coming thereon. 1025. General rule which exonerates the land-owner. 1026. Liability extends only to wan- ton injuries. 1027. Although the child is attract- ed to the premises by some object attractive to children. 1028. Cases supporting and illustrat- ing this rule. 1029. Other illustrations of the rule which exonerates proprietors. 1030. Decisions holding the land- owner liable. 1031. Decisions holding proprietors liable on the ground of "at- tractive nuisance." 1032. True ground of liability: erecting a nuisance attract- ive to children. 1033. Cases supporting and illustrat- ing the "attractive nuisance" doctrine. 1034. Other "attractive nuisance" cases. ''' Mullen v. Rainear, 45 N. J. L. 520. ="» Eureka Co. v. Bass, 81 Ala. 200. "*" Moynihan v. Whidden, 143 Mass. 287. Other cases where con- tributory negligence was for the jury — falling down a well-lighted elevator shaft: Morrison v. Metro- politan Tel. &c. Co., 69 Hun (N. Y.) 100; s. c. 52 N. Y. St. Rep. 601; 30 '936 Section 1035. Other cases dealing with the doctrine of "attractive nui- sances," denying and affirm- ing it. 1036. Liability of railway companies for injuries to children by unguarded and unfastened turn-tables. 1037. Cases affirming and illustrat- ing this liability. 1038. Degree of care demanded of railroad companies by this rule. 1039. Contributory negligence of the parents under this rule. 1040. Doctrine that railway com- panies are not so liable. 1041. Railroad companies not liable to children intruding into their yards. 1042. Owners of property leaving dangerous objects unguarded, liable to trespassing children. 1043. Authority of the leading case of Lynch v. Nurdin. 1044. Shaken by the case of Hughes V. Macfie. Abb. N. Cas. 143; 23 N. Y. Supp. 257. That the contributory negli- gence of plaintiff was a question for the jury was affirmed, but the judg- ment was reversed on the general ground that there was no evidence of negligence on the part of the de- fendant to justify a verdict against him, — see Harris v. Perry, 89 N. Y. 308; rev'g s. c. 23 Hun. 244. INJURIES FROM DEFECTS IN PREMISES. [2d Ed. Section Section 1045. And by Mangan v. Atterton. 1049. Theory that a child of tender 1046. Question left unsettled in years can not be a "trespass- England, er" for the purpose of ex- 1047. Doctrine of Lynch v. Nurdin onerating the proprietor. generally adopted in the 1050. Invitation to children to come United States. upon the premises. 1048. Doctrine of Lynch v. Nurdin 1051. Accidents ascribed to childish denied in some American inexperience, indiscretion and jurisdictions. misfortune. § 1024. Liability of the Owners and Occupiers of Premises for In- juries to Children Coming Thereon.^ — The owners and occupiers of real property are held by the law in some respects to a different stand- ard of liability in case of injuries to children coming upon their prem- ises, from that under which they stand with respect to adult persons. It is believed that the following propositions may safely be stated to be the law: 1. The owner or occupier of real property stands under the same duty towards children who are expressly or impliedly invited to come upon his premises, in respect of keeping such premises safe to the end that they will not be injured in so coming, under which he stands toward adult persons, — a subject already considered.^ *^ 2. As a general rule, he is not bound to keep his premises safe or in any particular condition for the benefit of the trespassing children of his neighbors, or for the benefit of children who occupy no more favorable position than that of bare licensees.^*^ 3. A well-grounded exception to the foregoing principles is that one who artificially brings or creates upon his own premises any dangerous thing which from its nature has a tendency to attract the childish instincts of children to play with it, is bound, as a mere matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they be protected from injury while so playing with it, or coming in its vicin- ity. Things of this kind frequently pass under the designation of attractive nuisances.^^^ § 1025. General Rule wMch Exonerates the land-owner. — The general rule undoubtedly is, that the owner or occupier of land is not bound to take pains to prepare his premises in any particular way, to the end of promoting the safety of children who may come thereon as trespassers or as bare licensees ; but that, as in the case of adults,'^* they take the premises as they find them, and if they are a This section is cited in §§ 133, ^- Ante, § 946. 299, 343, 346. *" Post, § 1031, et seq. ^^Ante, § 967, et seq. '"Ante, § 946. 937 1 Thomp. Neg.] care of real property. killed or injured by reason of the condition in which they find them, this does not give a right to an action for damages.^'"' § 1026. Liability Extends only to Wanton Injuries.* — One doe- trine- under this head is that if a child trespasses upon the premises of the defendant, and is injured in consequence of something that befalls him while so trespassing, he can not recover damages, unless the in- ™Keegan v. Luzerne County, 8 Kulp (Pa.) 160; Hamilton v. De- troit, 105 Mich. 514; 2 Det. L. N. 135; s. c. 63 N. W. Rep. 511; Mem- phis &c. Packet Co. v. Fogarty, 9 Ohio C. G. 418; s. c. 2 Ohio Dec. 706; Grindley v. McKechnie, 163 Mass. 494; s. c. 40 N. E. Rep. 764 (pool in rear of building 25 feet from, but access thereto not obstructed); Magner v. Frankford Baptist Church, 174 Pa. St. 84; s. c. 34 Atl. Rep. 456; O'Leary v. Brooks Ele- vator Co., 7 N. D. 554; s. c. 75 N. W. Rep. 919; 41 L. R. A. 677; Re Dem- arest, 86 Fed. Rep. 803; Dobbins v. Missouri &c. R. Co., 91 Tex. 60; s. c. 38 L. R. A. 573; 8 Am. & Eng. R. Cas. (N. S.) 179; 41 S. W. Rep. 62; afe'g 40 S. W. Rep. 861 (citing Har- greaves v. Deacon, 25 Mich. 1; Mis- souri &c. R. Co. V. Edwards, 90 Tex. 65; s. c. 32 L. R. A. 825; Moran v. Pullman Palace Car Co., 134 Mo. 641; s. c. 33 L. R. A. 755; Charle- bois V. Gogebic &c. R. Co., 91 Mich. 59; Clark v. Manchester, 62 N. H. 577; Greene v. Linton, 7 Misc. 272; Murphy v. Brooklyn, 118 N. Y. 575; Witte V. Stifel, 126 Mo. 295; Galli- gan V. Metacomet Man. Co., 143 Mass. 527; O'Connor v. Illinois &c. R. Co., 44 La. An. 339; Richards v. Connell, 45 Neb. 467; s. c. 63 N. W. Rep. 915; Benson v. Baltimore Trac- tion Co., 77 Md. 535; s. c. 20 L. R. A. 714; Sterger v. Van Sicklen, 132 N. Y. 499; s. c. 16 L. R. A. 640; Frost v. Eastern R. Co., 64 N. H. 220; Klix v. Nieman, 68 Wis. 271; Galveston Oil Co. v. Morton, 70 Tex. 400; Clark v. Richmond, 83 Va. 355; Ratte V. Dawson, 50 Minn. 450) ; Alabama &c. R. Co. v. Moorer, 116 Ala. 642; s. c. 22 So. Rep. 900; 9 Am. & Eng. R. Cas. (N. S.) 742; Dicken v. Liverpool Salt &c. Co., 41 W. Va. 511; s. c. 23 S. E. Rep. 582; Delaware &c. R. Co. v. Reich, 61 N. J. L. 635; s. c. 41 L. R. A. 831; 4 Am. Neg. Rep. 522; 11 Am. & Bag. R. Cas. (N. S.) 313; 40 Atl. Rep. 682; Feehan v. Dobson, 10 Pa. Su- per. Ct. 6; s. c. 44 W. N. C. 65 (dis- tinguishing Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Schilling v. Abernathy, 112 Pa. St. 437; s. c. 56 Am. Rep. 320) ; Fitzpatrick v. Cum- berland Glass Man. Co., 61 N. J. L. 378; s. c. 4 Am. Neg. Rep. 193; 39 Atl. Rep. 675; Missouri &c. R. Co. V. Dobbins, 40 S. W. Rep. 861 (no off. rep.) ; s. c. aff'd 91 Tex. 60; s. c. 38 L. R. A. 573; 8 Am. & Eng. Rail. Cas. (N. S.) 179; 41 S. W. Rep. 62 (unguarded pool on railway right of way) (distinguishing Sioux City &c. R. Co. V. Stout, 17 Wall. (U. S.) 657; s. c. 21 L. ed. 745; following Gillespie v. McGowan, 100 Pa. St. 144); Peters v. Bowman, 115 Cal. 345; s. c. 47 Pac. Rep. 113; rehear- ing denied in 115 Cal. 355; s. c. 47 Pac. Rep. 589 (lot accessible from the street) ; Brinkley Car Co. v. Cooper, 60 Ark. 545; Brecken- ridge v. Bennett, 7 Kulp (Pa.) 95 (unguarded cistern) ; Lepnick V. Gaddis, 72 Miss. 200; s. c. 26 L. R. A. 686 (unguarded cistern) ; Cleary v. Blake, 14 App. Div. 602; s. c. 43 N. Y. Supp. 1115; Missouri &c. R. Co. V. Edwards, 90 Tex. 65; s. c. 32 L. R. A. 825; 36 S. W. Rep. 430; 5 Am. & Eng. Rail. Cas. (N. S.) 343; reversing s. c. 32 S. W. Rep. 815; Omaha v. Bowman, 52 Neb. 293; s. c. 40 L. R. A. 531; 45 Cent. L. J. 412; 72 N. W. Rep. 316; Smith V. Hays (Div. Ct), 29 Out. Rep. 283; Emerson v. Peteler, 35 Minn. 481; s. c. 59 Am. Rep. 337; Twist v. Wi- nona &c. R. Co., 39 Minn. 164 ; Kolsti v. Minneapolis &c. R. Co., 32 Minn. 133; Schmidt v. Kansas City Distil- ling Co., 90 Mo. 284; 50 Am. Rep. 16; Branson v. Labrot, 81 Ky. 638; s. c. 50 Am. Rep. 103; Penso v. McCor- mick, 123 Ind. 116; s. c. 9 L. R. A. 313; Hamilton v. Detroit, 105 Mich. 514; s. c. 63 N. W. Rep. 511. a This section is cited in § 299. 938 INJURIES FROM DEFECTS IN PREMISES. [2d IH. jury was wantonly inflicted, or was due to the recklessly careless con- duct of the defendant. ^*^^ This cruel and wicked doctrine, unworthy of a civilized jurisprudence, puts property above humanity, leaves en- tirely out of view the tender years and infirmity of understanding of the child, indeed his inability to be a trespasser in sound legal theory, and visits upon him the consequences of his trespass just as though he were an adult,'' *^ and exonerates the person or corporation upon whose property he is a trespasser from any measure of duty towards him which they would not owe under the same circumstances towards an adult.^^' In one of these cases the court was not ashamed to say: "The circumstance that the trespasser in this instance was a boy ten years of age can not affect the application of the rule. The defend- ants owed him no greater duty than if he had been an adult. They are not subject to the obligation to take precautions against any class of persons who may walk on and along their tracks.""** In another case, where a boy seven years old was killed while attempting to ride upon a hoisting machine, the judge who wrote the opinion of the court, quoting from a previous decision of the court, was not ashamed to say : "The boy was in a place where he had no right to be and where he was not entitled to any protection from the defendants against his own reckless trespass.""*' So severely has this doctrine been applied, that it has been held that a child can not recover damages for an injury which was the direct consequence of its own trespass, although the trespass was committed under the control or coercion of its parent or ""a Ante, § 947. So stated by Hestonville R. Co. v. Connell, 88 Pa. Morton, J., in McGuiness v. Butler, St. 520; Moore v. Pennsylvania &c. R. 159 Mass. 233, 236. So held In Gay Co., 99 Pa. St. 301; Baltimore &c. R. V. Essex &c. R. Co., 159 Mass. 238; Co. v. Schwindling, 101 Pa. St. 258; Morrissey v. Eastern Railroad, 126 Gillespie v. MoGowan, 100 Pa. St. Mass. 377; McEachern v. Boston &c. 144; Oil City &c. Co. v. Jackson, 114 Railroad, 150 Mass. 515; Daniels v. Pa. St. 321; McMuUen v. Pennsyl- New York &c. Railroad, 154 Mass. vania &c. R. Co., 132 Pa. St. 107; 349; Gillespie v. McGowan, 100 Pa. Castoriano v. Miller, 15 Misc. (N. St. 144; Rodgers v. Lees, 140 Pa. St. Y.) 254; Feehan v. Dobson, 10 Pa. 475; s. c. 21 Atl. Rep. 399. Super. Ct. 6; s. c. 44 W. N- C. 65; "*" This is said with full knowledge Newdoll v. Young, 80 Hun (N. Y.) of the old common-law rule— still 364; s. c. 61 N. Y. St. Rep. 824; 30 barbarously adhered to — that chil- N. Y. Supp. 84; Keegan v. I/nzerne dren, even of tender years, are civ- County, 8 Kulp (Pa.) 160. The doc- illy liable for 'their trespasses. trine is that intruders, infants or "' Rodgers v. Lees, 140 Pa. St. 475 ; adults, can not, as a general rule, s. c. 12 L. R. A. 216; 22 Pitts. L. J. impose any duties upon the person (N. S.) 34; 48 Phila. Leg. Int. 329; on whose property they intrude: In- 27 W. N. C. 441; 21 Atl. Rep. 399; dianapolis &c. R. Co. v. Pitzer, 109 Philadelphia &c. R. Co. v. Hummel, Ind. 179; s. c. 4 West. Rep. 255. 44 Pa. St. 375; Flower v. Pennsyl- *" Moore v. Pennsylvania &c. R. vania &c. R. Co., 69 Pa. St. 210; Duff Co., 99 Pa. St. 301. V. Allegheny &c. R. Co., 91 Pa. St. »*= Rodgers v. Lees, 140 Pa. St. 475, 458; C^iiley V. Pittsburgh &c. R. Co., 486; s. c. 12 L. R. A. 216; 21 Atl. 95 Pa. St. 398; s. c. 98 Pa. St. 498; Rep. 399. 939 1 Thomp. Neg.] care of real property. guardian. ^^^ Another court, with some humanity, has qualified that doctrine by saying that, except when a child is seen in time so that the injury to it may be averted — persons who are lawfully using, or carrying on business on their own premises are not liable for injuries to children, unless, under the same circumstances, they would have been liable to adults who were equally free from fault." °^ § 1027. Although the Child is Attracted to the Premises by Some Object Attractive to Children. — This hard doctrine is so applied as to allow a proprietor to leave upon his premises, exposed to the children of the neighborhood, dangerous objects of such a character as to attract their childish instincts, and to escape liability if a child attracted by such object is killed or injured by it, — on the ground that the child is a trespasser, and that the leaving of dangerous objects so exposed as to tempt him to his death is not wanton or reckless negligence.' °^ Un- der this draconic doctrine the youth of a wrong-doer and trespasser, although he acted as reasonably as might be expected of him, if his con- duct contributes to the injury which he receives, will not prevent his contributory fault from constituting a defense in favor of a person or corporation whose negligence also contributed to the injury.'^' -Apply- ing this doctrine, it was held that a street railway company is not liable for an injury caused by an unfastened irahe, to a boy ten years old who, when injured, was playing with other children upon cars left standing uncared for several days on a public street in a city.'^* One court has gone even further, and, speaking through a judge who after- wards laid aside his judicial robes to become a receiver of an insolvent railroad company, declared in unqualified language, in a suit brought by a father as next friend of his child seven years of age, the infamous proposition that where a child is a trespasser upon the train of a rail- road company, whether with or without the consent of its father, "the defendant company owes no duty and is not liable for injuring it."'^° Moreover, it seems that the law is so tender of the rights of street con- tractors as to hold that they are under no duty — such is the form of ==° O'Leary v. Brooks Elevator Co., '== Gay v. Essex Electric St. R. Co., 7 N. D. 554; s. c. 75 N. W. Rep. 919; 159 Mass. 238; 21 L. R. A. 448; 34 41 L. R. A. 677. N. B. Rep. 186. ''" Indianapolis v. Emmelman, 108 '" Gay v. Essex Electric Street R. Ind. 530; s. c. 6 West. Rep. 566. Co., 159 Mass. 238; s. c. 21 L. R. A. ^' Morrissey v. Eastern Railroad, 448. 126 Mass. 377 ; McBachern v. Boston »=' Cauley v. Pittsburgh &c. R. Co., &c. Railroad, 150 Mass. 515; Daniels 95 Pa. St. 398; s. c. 40 Am. Rep. 664. V. New York &c. Railroad, 154 Mass. Prom this infamous proposition two 349; Gay v. Essex Electric Street R. judges out of seven (Trunkey and Co., 159 Mass. 238. Further, and Sterrett) had the humanity to dis- more especially as to attractive nui- sent, sances, see post, § 1031, et seq. 940 INJURIES FROM DEFECTS IN PEEMISES. [2d Ed. judicial expression — to employ men to keep children from playing on moving dump-cars.^ ^* Another court, with a clearer perception of justice, holds that a railroad company is bound to use reasonable care to anticipate and prevent an injury to a child of such tender years as to have little or no discretion, though the child be a trespasser.' ^^ Another court, which is usually conservative of the rights of property, dealing also with reference to a railroad company, reasons that, while tender age can not raise a duty where none otherwise existed, yet where a duty exists, the degree of care required toward infants may be different from that required toward adults.'^ ^ But the helplessness of tender age can and ought to raise a duty where none would exist with reference to adults. Accordingly, it has been held that the con- ductor of a train upon which a child seven years old has become an intruder, is bound to use greater care in dealing with that child than he is required to exercise with older persons.''^'' It is some relief to tnow that this rule against infantile trespassers does not extend to pits left unguarded in the public highway. There they are not in- truders; but the city owes them the duty of knowing that they will resort to such a place, and of protecting them against falling into £4-360 § 1028. Cases Supporting and Illustrating this Rule. — It was so held where a custodian of a child took it upon a vacant resident lot of the defendant for its recreation and pleasure, and when there it was killed by the accidental caving in of an unfenced sand-pit j^'^^ where a boy nine years old was killed by the caving in of a sand-pit, which the defendant dug near a school-house and partly within the public high- way;''^ where a boy of eight years was drowned in an unguarded ™ Emerson v. Peteler, 35 Minn, on the part of a city to leave the pit 481. neglected; and that the city would ^'Kentucky &c. R. Co. v. Gasti- be liable for an injury resulting neau, 83 Ky. 119. from such condition: Indianapolis ^'^ Nolan v. New York &c. R. Co., v. Emmeln^an, 108 Ind. 530; s. c. 6 53 Conn. 461; s. c. 1 N. E. Rep. 826. West. Rep. 566. ""Indianapolis &c. R. Co. v. Pitzer, '"Ratte v. Dawson, 50 Minn. 450; 109 Ind. 179; s. c. 4 West. Rep. 255. s. c. 52 N. W. Rep. 965; Fink v. Mis- '" Thus, where a city made an ex- souri Furnace Co., 82 Mo. 276; cavation for the purpose of placing rev'g s. c. 10 Mo. App. 61, on the the pier of a bridge in the bed of a ground that the work of excavation shallow stream, at a point where it was done by an independent con- crossed the street, and left the same tractor, namely, a negro hauling unguarded on a July day, with sand by the load. See also the wis- knowledge that children were ac- dom and justice of NewdoU v. customed to play in the vicinity,— Young, 80 Hun (N. Y.) 364; s. c. it was held that the city must be 61 N. Y. St. Rep. 824; 30 N. Y. Supp. held to know that children are at- 84. tracted to such a place in warm ""^ Fay v. Kent, 55 Vt. 557. The weather, and are not intruders writer believes that this case was there; and it was gross carelessness not well decided. 941 liThomp. In eg. J care of real property. pool of water, left after a heavy storm on the right of way of a 7-^i\- way company in a corner of its embankment, while climbing over the embankment without right or permission ;^°^ where a boy eight years old was drowned m an unguarded well, left upon an abandoned and uninclosed brick-yard at a considerable distance from the public highway, while fishing in it by daylight;'^* where a boy nine years of age fell into an unfenced and unguarded pond of water existing on the premises of the defendant, and was drowned j^"^ where a boy of tender years fell into a cistern which had been left uncovered on the premises of the defendant, not immediately adjoining the highway, and was drowned ;^°° where a street-car company left its cars standing for several days in the public street of a city, and a child while play- ing about them, with other children, was injured by an unfastened brahe;^^'' where a railway company left a number of unfastened dump- cars upon a side track in a place frequented by the children of the neighborhood, and a boy pushing the cars with other children, fell off and was run over ;^°^ where, in like manner, a boy was killed while playing with other boys upon an unguarded and unfastened railway hand-car, left at a remote place over Sunday, which some boys had replaced on the track for their amusement ;^^^ where a railroad com- pany had been accustomed for several years to leave cars fastened by brakes, on a side track of somewhat steep grades, and a boy of five unloosened the brakes, fell or jumped off, and was killed;^''" where a boy six or seven years old got upon a hoisting apparatus hanging over '"' Charlebois v. Gogebic &c. R. Co., bois v. Gogebic &c. R. Co., 91 Mich. 91 Mich. 59; s. c. 51 N. W. Rep. 812. 59; Breckenridge v. Bennett, 7 Kulp The doctrine of the text has been (Pa.) 95; Richards v. Cannell, 45 applied in numerous cases where Neb. 467; s. c. 63 N. W. Rep. 915; children have been drowned in un- Grindley v. McKechnie, 163 Mass. guarded ponds of water: Omaha v. 494; s. c. 40 N. E. Rep. 764 (pool in Bowman, 52 Neb. 293; s. c. 40 L. R. rear of building 25 feet therefrom, A. 531; 45 Cent. L. J: 412; 72 N. W. but access thereto not obstructed). Rep. 316; Missouri &c. R. Co. v. ''"Gillespie v. McGowan, 100 Pa. Dobbins, 40 S. W. Rep. 861 (no off. St. 144; s. c. 45 Am. Rep. 365. rep.); s. c. aff'd in 91 Tex. 60; s. c. ^'''Klix v. Nieman, 68 "Wis. 271; s. 38 L. R. A. 573; 8 Am. & Eng. R. c. 32 N. W. Rep. 223. Cas. (N. S.) 179; 41 S. W. Rep. 62 ■'»» Hargreaves v. Deacon, 25 Mich, (unguarded pool on railway right of 1. See also Gramlich v. Wurst, 86 way) ; distinguishing Sioux City Pa. St. 74. &c. R. Co. v. Stout, 17 Wall. (U. S.) ^^ Gay v. Essex Electric Street R. 657; s. c. 21 L. ed. 745; following Co., 159 Mass. 238; 34 N. E. Rep. Gillespie v. McGowan, 100 Pa. St. 186; 21 L. R. A. 448. 144; Peters v. Bowman, 115 Cal. 345; =«'0'Conners v. Illinois &c. R. Co., s. c. 47 Pac. Rep. 113; rehearing de- 44 La. An. 339; s. c. 10 South. Rep. nied in 115 Cal. 355; s. c. 47 Pac. 678. Rep. 589 (accessible from the '""Robinson v. Oregon &c. R. Co., street); Moran v. Pullman Palace 7 Utah 493; s. c. 13 L. R. A. 765; 27 Car Co., 134 Mo. 641; s. c. 33 L. R. A. Pac. Rep. 689. 755; 36 S. W. Rep. 659 (on a vacant ""Central Branch Union &c. R. lot near the highway) ; Brinkley Car Co. v. Henigh, 23 Kan. 347, Co. V. Cooper, 60 Ark. 545; Charle- 942 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. the street from the side of a mill for the purpose of riding upon it, against the warning of a companion, and fell off and was killed;"^ where a child lost its life by falling into a pool of hot water on the premises of a distilling company, — it not appearing that the place was especially attractive to children, or that they were in the habit of resorting there to play.^''^ For stronger reasons, no liability will be incurred by any one from the mere fact that he fails to drive children away from vacant grounds, of which it is not shown chat he is either the owner, the occupier, or the caretaker.''^ § 1029. Other Illustrations of the Rule which Exonerates Pro- prietors.* — In all the following cases, the proprietor or occupier was exonerated under the rule of the preceding paragraph: — Where a child was injured by tampering with machinery employed in the doing of work upon a public street, to which the child had been attracted, climbing over barriers to get to it, which barriers were sufficient to guard against accident to persons in the ordinary use of the street ;^^* where a child was injured while playing upon a pile of railroad bridge ties in a railroad yard, in consequence of the manner in which the ties had been piled, where the yard was fenced except along on the side next to the railroad track, the servants of the company having been in the habit of ordering children out when found there, — the view being that the company was under no obligation to pile the ties so as to prevent children from being injured by climbing upon them;^''^ where the employes of a contractor, doing work on a public school building, left the door leading from an alley into a cellar of the build- '"^ Rodgers v. Lees, 140 Pa. St. 475 ; city to be enclosed, which appeared s. c. 12 L. R. A. 216; 27 W. N. C. to relate to highways, has been held 441; 21 Atl. Rep. 399; 22 Pitts. L. J. inadmissible: Overholt v. Vieths, 93 (N. S.) 34; 48 Phila. Leg. Int. 329. Mo. 422; s. c. 12 West. Rep. 95; 6 S. Compare Hestonville R. Co. v. Con- W. Rep. 74. A land-owner is under nell, 88 Pa. St. 520; see Moore v. R. no duty to so secure his premises as Co., 99 Pa. St. 301; and Oil City &c. to avoid injury to a child from the Bridge Co. v. Jackson, 114 Pa. St. street, who passes over the land of 321. another to that of defendant and is ^" Schmidt v. Kansas City Distil- injured by a possible danger on the ling Co., 90 Mo. 284. premises of a stranger adjoining de- ""Galligan v. Metacomet Man. Co., fendant: Magner v. Frankford Bap- 143 Mass. 527. Other similar cases tist Church, 174 Pa. St. 84. where the defendant has been exon- a This section is cited in §§ 1031, erated are: Gernau v. Oceanic 1035. Steam Nav. Co., 66 Hun (N. Y.) 633; '"^ Hamilton v. Detroit, 105 Mich, s. c. 50 N. Y. St. Rep. 156; 21 N. Y. 514; s. c. 63 N. W. Rep. 511; 2 Det. Supp. 371; Breckenridge v. Bennett, L. N. 135. 7 Kulp (Pa.) 95; Union Stockyards ™ Missouri &c. R. Co. v. Edwards, &c. Co. V. Rourke, 10 111. App. 474. 90 Tex. 65; s. c. 32 L. R. A. 825; 36 In a suit for the death of a child S. W. Rep. 430; 5 Am. & Eng. R. drowned in a pond formed in de- Cas. (N. S.) 343; rev'g s. c. 32 S. W. fendant's lot, proof of an ordinance Rep. 815. requiring excavations within the 943 1 Thomp. Neg.] care of keal property. ing unlatched, and a schoolboj', leaning against the door, fell through it into the pit, — it appearing that the employes did not know that the pupils would be liable to use the alley, and that they had slammed the door and heard it click, and supposed that it was latched;^'* where a boy six years old, with his older brother, scaled the wall surrounding a lot, for the purpose of gathering coal, which lot was used for the dumping of aches, and contained an opening for the purpose , of carting in the ashes, and, while there, the younger boy was burned while treading upon the burning ashesj^'''' where a contractor em- ployed in his work, slowly moving cars for the transportation of earth, which were not dangerous, except to persons attempting to ride upon them, and a child making such an attempt was hurt, — the court held that the contractor was not bound to hire men to keep children from them;^'* where a company using a tramway upon its own land, on which a car drawn by a mule was used, failed to anticipate that some- body's young child might get upon the track, and consequently failed to provide beforehand a method of throwing the car off the track so as to avoid injuring such an intruder,— this not being deemed negli- gence;^^' where a small boy, passing over the unfenced land of a pro- prietor of one person to that of another, fell into an unguarded quarry, — the conclusion being that the land-owner was not bound to fence his premises, although it contained such a quarry;^*" where a child of tender years met his death by pulling upon himself a stone used in the construction of a building on premises where he was an intruder, the owner having no notice of the habit of children playing about the place, or that the stone was in a dangerous condition, and there being nothing in the character of his work especially attractive to children.^ *^ § 1030. Decisions Holding the Land-owner Liable. — We now come to a class of decisions which hold the land-owner liable in damages in the case of children injured by dangerous things suffered to exist unguarded on his premises, where they are accustomed to come with or without license. These decisions proceed on one or the other of two grounds : 1. That where the owner or occupier of grounds brings =" Cleary v. Blake, 14 App. Div. "' Dlcken v. Liverpool Salt &c. 602; s. c. 43 N. Y. Supp. 1115. Co., 41 W. Va. 511; s. c. 23 S. B. ^" Feehan v. Dobson, 10 Pa. Super. Rep. 582. Gt. 6; s. c. 44 W. N. C. 65 (dlstin- ™ Magner v. Frankford Baptist guishing Hydraulic Works Co. v. Church, 174 Pa. St. 84; s. c. 34 Atl. Orr, 83 Pa. St. 332, and Schilling v. Rep. 456. Abernathy, 112 Pa. St. 437; s. c. 56 =" Witte v. Stifel, 126 Mo. 295; s. c. Am. Rep. 320). 28 S. W. Rep. 891. *" Emerson v. Peteler, 35 Minn. 481. 944 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. or artificially creates something thereon which from its nature is especially attractive to children, and which at the same time is dan- gerous to them, he is bound, in the exercise of social duty and the ordinary ofBces of humanity, to take reasonable pains to see that such dangerous things are so guarded that children will not be injured by coming in contact with them. 2. That although the dangerous thing may not be what is termed an attractive nuisance, — that is to say, may not have an especial attraction for children by reason of their child- ish instincts, — yet where it is so left exposed that they are likely to come in contact with it, and where their coming in contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to take reasonable pains to guard it so as to prevent injury to them.^*^ § 1031. Decisions Holding Proprietors Liable on the Ground of "Attractive Nuisance."''^ — In respect of the first class of cases, that of attractive nuisances, it is to be observed that it would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog, attracted by his natural instincts, might run into it and be killed ;^^^ and which would exempt him from liability for the consequences of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor's child, attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed, or maimed for life.^** In view of what has preceded, the author regrets that he can not say, as he said in his first edition, that such is not the law. He limits himself to expressing the opinion, that it ought to be the law, and to citing with commendation the few decisions which hold that it is the law. Nevertheless, a few decisions of enlightened and humane courts are found, more or less tending 'to the conclusion that the owner of any machine or other thing which, from its nature, is "^ Cases proceeding on one or the 315 ; Mangan v. Atterton, L. R. 1 other of these grounds are: Hy- Exch. 239; 4 Hurl. & Colt. 388; Dub- draulic Works Co. v. Orr, 83 Pa. St. lln Cotton Oil Co. v. Jarrard, 91 -S32; Birge v. Gardiner, 19 Conn. Tex. 289; s. c. 42 S. W. Rep. 959; 507; Railroad Co. v. Stout, 17 Wall, aff'g s. c. 40 S. W. Rep. 531. (U. S.) 657; 2 Dill. (U. S.) 294; 1 a This section is cited in §§ 945, Cent. L. J. 202; 17 Am. L. Reg. 226; 950, 1024, 1027, 1077. Keffe v. Milwaukee &c. R. Co., 21 '^ Townsend v. Wathen, 9 Bast Minn. 207; s. c. 2 Cent. L. J. 170; 277. Whirley v. Whitman, 1 Head '^ This language, in the first edi- (Tenn.) 610; Mullaney v. Spence, tion of this work, is quoted with ap- 15 Abb. Pr. (N. Y.) (N. S.) 319. proval by Mr. Justice Harlan, in Contra, Hughes v. Macfle, 2 Hurl. & giving the opinion of the court, in Colt. 744; 10 Jur. (N. S.) 682; 33 Union Pac. R. Co. v. McDonald, 152 L. J. (Exch.) 177; 12 Week. Rep. U. S. 280; aff'g 35 Fed. Rep. 38. VOL. 1 THOMP. XEG. — 60 945 1 Thomp. Neg.] care of real property. especially attractive to cliildren, who are likely to attempt to play with it in obedience to their childish instincts, and yet which is especially dangerous to them, — is under the duty of exercising reasonable care to the end of keeping it fastened, guarded, or protected so as to pre- vent them from injuring themselves while playing or coming in con- tact with it.'^' Such machines and dangerous things are often de- scribed in the books as attractive nuisances. In the leading ease pro- mulgating this doctrine, the defendant's servant left his horse and cart unattended in a populous street. The plaintifE, a child seven years old, got upon the cart, in play ; and another child made the horse move on while the plaintiff was in the act of getting down from it, in consequence of which the plaintiff was thrown down and had his leg broken. The defendant was held liable in an action on the case, al- though the plaintiff was a trespasser, and contributed to the mischief by his own act. It was properly left to the jury to find whether de- fendant's servant was guilty of negligence, and if so, whether that negligence caused the injury in question.^^° A slight examination of many of the cases cited in a preceding section,"*^ will show that the modern courts have departed from it in numerous instances, espe- cially in favor of railroad companies and other corporations. § 1032. True Ground of Liability : Erecting a Nuisance Attractive to Children.^** — The fact that, from some unexplained cause, a pile of lumber fell upon a child while trespassing upon the premises of the defendants, who had given their watchman orders to exclude chil- dren, which was generally done, created no liability.''^' On the other hand, piling lumber upon and near the sidewalk of a public street, in such a manner as to be dangerous to children, is an act for which the employers of the person so doing are responsible, though done con- trary to their orders.^"" The principle of the foregoing decisions is that the natural instintts of the child have brought it into contact with the means of danger which the negligent act of the defendant has left exposed ; therefore, where this element of temptation is wanting, where »"= Lynch v. Nurdin, 1 Ad. & Bl. (N. 450; Brinkley Car Works &c. Co. v. S.) 29; s. c. 4 Per. & Dav. 672; 5 Cooper, 60 Ark. 545; s. c. 31 S. W. Jur. 797; printed in full in 2 Thomp. Rep. 154; Findley Brew. Co. v. Bell- Neg., 1st ed., p. 1140; O'Malley v. man, 9 Ohio C. C. 277. St. Paul &c. R. Co., 43 Minn. 289; "«» Lynch v. Nurdin, 1 Ad. & El. (N. s. c. 45 N. W. Rep. 440; Porter v. S.) 29; s. c. 4 Per. & Dav. 672; 5 Anheuser-Busch Brew. Co., 24 Mo. Jur. 797; 2 Thomp. Neg., 1st ed., p. App. 1; Westerfield v. Levi, 43 La. 1140. An. 63; s. c. 9 So. Rep. 52. See also "'Ante, § 1029. Coppner v. Pennsylvania Co., 12 111. =»» Compare post, § 1036. App 600; Pekin v. McMahon, 154 =»» Vanderbeck v. Hendry, 34 N. J. 111. 141; s. c. 27 L. R. A. 206; 53 111. L. 467. App. 189 ; Price v. Atchison Water ^'° Cosgrove v. Ogden, 49 N. Y. 255. Co., 58 Kan. 551; s. c. 50 Pac. Rep. 946 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. the defendant has been guilty of no act calculated to attract the child into danger, the action can not be maintained. Such was held to be ' the fact where a child ten years of age unnecessarily stepped from the window of the tenement in which his father lived, to a fire-escape attached to the building, and was killed by being precipitated through a defective trap-door.^^^ It may hence be concluded that the pre- vailing view is that the owner of property is under no general obliga- tion to keep it in a condition which will insure the safety of persons who go upon it without his license or invitation, yet where he keeps or permits upon his premises dangerous machinery, or other dangerous things, likely to attract children, and does not guard them so as to prevent injuries to the children, he is liable for injuries resulting from his neglect to provide such guards. ^^'' § 1033. Cases Supporting and Illustrating the "Attractive Nuis- ance" Doctrine. — A modern decision supporting and upholding this doctrine, is to the effect that mill-owners who have permitted their uninclosed mill-yard^ situated in a public place, to be used as a play- ground by children, who have been accustomed to play upon the pile of furnace ashes which have been for months cold and devoid of dan- ger, are liable in damages to a child injured by the fact of the mill- owners making an excavation in this pile of cold ashes and filling it with hot ashes, leaving no traces of the change and giving no proper notice of it.^°^ In another case where this view was taken, it ap- peared that there was, adjoining a factory, a private alley, which com- municated with a public street by a gate which was frequently left open by employes, though contrary to orders. In this alley, twenty- four feet from the street, was a platform, to be raised and lowered in receiving and shipping goods. This platform, when raised, rested against the wall, and was held up only by its own slight inclination, having no fastening. A child six years old, playing in the street, strayed into the alley and was killed by the fall of the platform. The lessees of the factory were held liable, the court saying: "Now, can it be righteously said that the owner of such a dangerous trap, held by ^ McAlpin V. Powell, 70 N. Y. by a child less than three years old 126; s. c. 55 How. Pr. (N. for a similar injury. In this case, Y.) 163, (reversing s. c. 1 Ahb. however, the child's parents were N. C. 427). Whether this case is aware of the dangerous condition distinguishable from that of Rail- of the premises, and accordingly road Co. v. Stout, 17 Wall. 657, and their negligence was imputed to the similar cases, is doubtful. The court plaintiff. considered the facts not analogous; ^"-Schmidt v. Kansas City &c. Co., but, if it were otherwise, was not 90 Mo. 284; s. c. 7 West. Rep. 128. prepared to assent to that decision. ™^ Penso v. McCormick, 125 Ind. See also Flynn v. Hatton, 43 How. 116; s. c. 9 L. R. A. 313; 25 N. B. Pr. (N. Y.) 333, which was an action Rep. 156. 947 1 rhomp. Neg.] care of real property. no fastening, so liable to drop, so near a public thoroughfare, so often left open and exposed to the entries of persons on business, by acci- dent, or from curiosity, owes no duty to those who will be probably there? The common feeling of mankind (as well as the maxim Sic utere tuo ut alienum non laedas) must say this can not be true, — that this spot is not so private and secluded as that a man may keep dan- gerous pits or deadfalls there without a breach of duty due to society. On the contrary, the mind, impelled by the instincts of the heart, sees at once that in such a place, and under these circumstances, he had good reason to expect that one day or other some one (probably a thoughtless boy, in the buoyancy of play), would be led there, and injury would follow; especially, too, when prompted by knowledge that a fastening was needed."^'* § 1034. Other "Attractive Nuisance" Cases. — In another such case, the proprietors of a paper-mill propelled by steam, in a sparsely settled portion of the city of N^ashville, left two cog-wheels geared together outside the wall, twenty inches from the ground, and twenty feet from the street, exposed, unprotected, and constantly in motion. A boy three years of age, playing near this gearing, was caught in it and his leg was taken off. Eighteen years afterwards, on coming of age, he brought an action for the damages. The jury found for the defend- ants; but the Supreme Court reversed the judgment, on the ground that the verdict was against the evidence.^ °^ In still another, the owner of a coal-yard had an elevator worked by steam close to the side- walk. During an intermission of work, the sliding door by which it was commonly shut off from the street was left open and unguarded, in consequence of which a child got under it and was crushed by the descending car. The question of the defendant's negligence was held to be for a jury.^"" In another case, which has been much cited, and which goes farther than any of the preceding, the defendant set up a gate on his own land, by the side of a lane through which children were accustomed to pass. A child six or seven years of age, while passing through this lane, took hold of the gate, without the leave of any one, and shook it, in consequence of which it fell on him, breaking his leg. This case went to a jury, and a verdict for the plaintiif was sustained. ^°^ In another, the defendants, in possession and control of an unfenced lot, adjoining a public street in a city, stacked a large quantity of lumber in one large and irregular pile so negligently, that =" Hydraulic Works Co. v. Orr, 83 "== Whlrley v. Whiteman, 1 Head Pa. St. 332. Compare Gramlicli v. (Tenn.) 610. "Wurst, 86 Pa. St. 74, where this case ^^ Mullaney v. Spence, 15 Ahb. Pr. io approvec. (N. S.) (N. Y.) 319. "^ Birge v. Gardiner, 19 Conn. 507. 948 INJURIES FROM DEFECTS IN PEEMISES. [2d Ed. an infant, while playing near it, was killed by one of the timbers fall- ing upon him. It was held that the defendants were liable.^*' In another, a complaint which alleged that the defendant, by its agents and servants, negligently removed the fences enclosing the premises, and left a privy vault unguarded and uncovered, within ten feet from the sidewalk of a public, travelled street, in consequence of which the plaintiff's child three years and ten months old, lost its life by falling into such vault, — was held to state a sufficient cause of action.^"^ In another case a mining company left a pile of coal-slack, dumped from its mine, near a town where children were in the habit of going, which took fire by spontaneous combustion, but which emitted no smoke or steam showing that it was afire. A child, frightened by one of the workmen, having no knowledge of the fire, attempted to run across it and was severely burned. It was held a case for a jury.*"" § 1035. Other Cases Dealing with the Doctrine of "Attractive Nuisance," Denying and Affirming It. — On the other hand, an exam- ination of the cases cited in preceding sections,*"^ and others cited hereafter,*"^ will disclose many which pointedly deny the so-called doctrine of "attractive nuisance," and hold that an invitation is not extended to children to enter upon private premises, by erecting there- on, for beneficial uses, a structure which happens to be attractive to them.*"' Another court, recognizing the doctrine of "attractive nuis- ance," has applied it so as to hold that the liability of a manufacturing company for scalding a child in hot water, let out of a steam boiler on its premises, at a considerable distance from any street or travelled way, where the pool of water was not covered or inclosed, or any warning of danger posted, depends upon the attractiveness of the pool of water to children, and the reasonable anticipation that children '"Bransom v. Labrot, 81 Ky. 638; was affirmed and applied in Porter s. c. 50 Am. Rep. 193. v. Anheuser-Busch Brew. Assn., 24 ™ Malloy V. Hibernian Sav. &c. Mo. App. 1, where a boy between the Soc. (Cal.), 21 Pac. Rep. 525. ages of five years and fourteen '"" McDonald v. Union &c. R. years overturned upon himself a Co., 42 Fed. Rep. 579. Com- portable furnace containing coal and pare McDonald v. Union &c. R. cinders, which had been negligently Co., 35 Fed. Rep. 38, which left by defendant's servant upon the was the same case on demurrer to sidewalk upon which the boy was the complaint. The decision was walking, by which he was burned affirmed in the Supreme Court of and permanently injured. U. S., sm6 nom. Union Pac. R. Co. ""-Ante, § 1029. V. McDonald, 152 U. S. 262,— the ""Post, % 1036 (turn-tables), court taking the view that the rail- "^ Delaware &c. R. Co. v. Reich, road company was guilty of negli- 61 N. J. L. 635; s. c. 41 L. R. A. 831; gence in failing to comply with its 4 Am. Neg. Rep. 522; 11 Am. & statutory obligation to fence. The Eng. R. Cas. (N. S.) 313; 40 Atl. doctrine of "attractive nuisance" Rep. 682. 949 1 Thomp. Neg.J care op real property. might be attracted there to their injury;*"* and another court has held that the question whether such a danger is of a nature to attract or entice children to their injury, so that the proprietor ought to foresee the probability of accidents to them, is a question for the jury.*"^ Another court has held that a water-works company, which maintains on its grounds deep reservoirs of water, attractive to small boys, who, with its knowledge and permission, resort there for fishing and for play, and which takes no reasonable precautions to prevent accidents to them while so engaged, becomes liable for the death of one of them by drowning, if he is free from contributory negligence.*"^ § 1036. Liability of Railway Companies for Injuries to Children by Unguarded and Unfastened Turn-tables.^ — The doctrine of the preceding sections relating to "attractive nuisances" is, if a sound doctrine, peculiarly applicable to that very numerous class of injuries which have happened to children while playing, in obedience to their childish instincts, with unguarded and unfastened railway turn-table«. Considerable Judicial authority is in favor of the conclusion that, if a railway company leaves such a machine unguarded and unfastened in a place where children are likely to come, so that they are attracted to it by their childish instincts, and tempted for their amusement to make a merry-go-round of it, and, while so playing with it, are killed or injured by it, the railway company must pay damages.*"^ '"Brinkley Car Works &c. Co. v. waukee &c. R. Co., 21 Minn. 207; Cooper, 60 Ark. 545; 31 S. W. Rep. Koons v. St. Louis &c. R. Co., 65 154. Mo. 592; Gulf &c. R. Co. v. Styron, "»Pekin v. McMahon, 154 111. 141; 66 Tex. 421; Houston &c. R. Co. v. e. c. 27 L. R. A. 206; 39 N. B. Rep. Simpson, 60 Tex. 103; Evansich v. 484; afE'g 53 111. App. 189. The con- Gulf &c. R. Co., 57 Tex. 126; s. c. 44 elusion was that a pond or pit in a Am. Rep. 586; Gulf &c. R. Co. v. Mc- populous city, in which the water Whirter, 77 Tex. 356; s. c. 14 S. W. was from five to fourteen feet deep. Rep. 26; Barrett v. Southern &c. R. containing logs and timbers floating Co., 91 Cal. 296; s. c. 27 Pac. Rep. therein, in which children were in 666; 48 Am. & Eng. R. Gas. 532; 25 the habit of playing, the pond being Am. St. Rep. 186; Callahan v. Eel tiituated near a driveway across va- River &c. R. Co., 92 Cal. 89; s. c. 28 cant lots, though partly enclosed Pac. Rep. 104; Ferguson v. Colum- ifrom the streets on the sides of it, bus &c. R. Co., 77 Ga. 102; Ilwaca might properly be found by a jury R. &c. Co. v. Hedrick, 1 Wash. 446; to be an attractive nuisance, such as s. c. 25 Pac. Rep. 335; Nagel v. Mis- would render the city maintaining souri &c. R. Co., 75 Mo. 653; Kansas it, liable for damages in case of a &c. R. Co. v. Fitzsimmons, 22 Kan. child becoming drowned while play- 686; Bridger v. Asheville &c. R. ing in it: Pekin v. McMabon, 154 111. Co., 25 S. C. 24; Fort Worth &c. R. 141; s. c. 27 L. R. A. 206; 39 N. E. Co. v. Robertson (Tex.), 14 L. R. A. Rep. 284; afE'g 53 111. App. 189. 781; s. c. 16 S. W. Rep. 1093. This 406 Price V. Atchison Water Co., 58 was the view of some of the subordi- Kan. 551; s. c. 50 Pac. Rep. 450. nate courts of New York: Walsh v. a This section is cited in §§ 1032, Fitchburg R. Co., 78 Hun (N. Y.) 1035. 1; s. c. 60 N. Y. St. Rep. 539; 28 N. "" Sioux City &c. R. Co. v. Stout, Y. Supp. 1097 ; following s. c. 67 17 Wall. (U. S.) 657; Keffe v. Mil- Hun (N. Y.) 604; 51 N. Y. St. Rep. 950 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. § 1037. Cases Affirming and Illustrating this Liability. — Under this doctrine, the railway company is not relieved from liability be- cause a turn-table may have been put in motion by a child other than the one who was injured by it.*"* Nor is the company relieved from liability, where the turn-table has been secured merely by a latch easily raised, by the fact that its employes have always ordered away children whom they have seen playing with it;*"* nor by the fact that its agent, having seen children playing with it, tied it with a rope so that it could not be revolved unless the rope were cut or untied.*^" Nor, under this doctrine, will a railway company be relieved from lia- bility upon proof of a custom on the part of the railroad companies generally to leave their turn-tables unfastened; nor will evidence of such a custom be admissible, because it is deemed in law to be a had customj*^^ nor by the fact that it does not own the turn-table provided it has the occupation and control of it.*'^^ Nor is it at all necessary, in order to make out a case against a railway company leaving a turn- table unfastened and unguarded, to prove a willful intention to inflict an injury thereby.*^^ The general concensus of the cases cited in this section is to the effect that, for a railway company to leave a turn- table unguarded and unfastened, is evidence of negligence to go to a jury;*^^ so that it is error to nonsuit the plaintifE or to direct a ver- dict for the defendant, or to take the question away from the jury by a peremptory instruction, such as an instruction to the effect that the company is not liable for the act of leaving the turn-table unfastened, if a child five years of age could not move it.*^^ 240; 22 N. Y. Supp. 441; s. c. rev'd flicting the injury, in the way cus- 145 N. Y. 301. But, reversing this tomary with all railroad companies, line of decisions, the Court of Ap- such evidence is not conclusive on peals of that State has established the question whether due care was the acceptable railroad doctrine: exercised: O'Malley v. St. Paul &c. Walsh V. Fitchburg R. Co., 145 N. Y. R. Co., 43 Minn. 289; s. c. 45 N. W. 301; rev'g s. c. 78 Hun (N. Y.) 1. Rep. 440. Another court has held *" Gulf &c. R. Co. V. McWhirter, that proof of a custom on the part 77 Tex. 356; s. c. 14 S. W. Rep. 26; of railroad companies to keep their Barrett v. Southern &c. R. Co., 91 turn-tables locked is not admissitle Cal. 296; s. c. 48 Am. & Bng. R. Cas. on their part, in order to show negli- 532; 25 Am. St. Rep. 186; 27 Pac. gence: Gulf &c. R. Co. v. Evansich, Rep. 666. 61 Tex. 3. As to evidence of custom "' Callahan v. Eel River &c. R. as bearing upon negligence, see ante, Co., 92 Cal. 89; s. c. 28 Pac. Rep. § 30. 104. ■"=' Nagel v. Missouri &e. R. Co., 75 ""Ilwaco R. &c. Co. v. Hedrick, 1 Mo. 653. Wash. 446; s. c. 25 Pac. Rep. 335. "'Gulf &c. R. Co. v. Styron, 66 ^' Ilwaco R. &c. Co. v. Hedrick, 1 Tex. 421. Wash. 446; s. c. 25 Pac. Rep. 335. "* Houston &c. R. Co. v. Simpson, Another court has, however, held 60 Tex. 103. that, while it is competent for the "''Gulf &c. R. Co. v. McWhirter, railroad company to show that it se- 77 Tex. 356; s. c. 14 S. W. Rep. 26. cured the turn-tables and trucks In- 951 1 Thomp. Neg.] cake of real property. § 1038. Degree of Care Demanded of Railroad Companies by this Rule. — Here, as in other cases, the law demands on the part of the railway company the exercise of reasonable or ordinary care in dis- charging its obvious social duty of not leaving a highly dangerous machine, peculiarly attractive to children, exposed to their trespasses. But such care is not the care which is usually exercised by railroad companies, because it seems that they usually leave their turn-tables unguarded and unfastened. They may be liable, although they have fastened it in the ordinary manner, that is, by an arrangement which children can easily detach or unfasten.*^^ The true test of their lia- bility is what care a well regulated and prudently managed railroad company ought to exercise in view of the great danger to children from this source.*^^ § 1039. Contributory Negligence of the Parents under this Rule. — The question of the contributory negligence of the parents is liable to cut a considerable figure here, as in other cases of injuries to chil- dren; but it is to be observed that the law does not impute contribu- tory negligence to the act of the parents in allowing children, except those of a very tender age, to play upon the streets or upon open public places, where they can enjoy the advantages of pure air and sunshine. On the contrary, for parents to restrain their children from so exer- cising would be a plain violation of parental duty, with which the law ought, if necessary, to interfere.*^' § 1040. Doctrine that Railway Companies are Not so liable. — Some of the courts, chiefly in those portions of our country which are dominated by railroad and other corporate influences, have balanced the lives and limbs of children of tender years against the slight inconvenience on the part of a railway company of keeping its turn-tables locked, and have decided that such a company is not liable in damages for the death or injury of a child, received while playing with an unguarded and unfastened turn-table, although situated in a "° Barrett v. Southern &c. R. Co., circus ground, neither she nor the 91 Cal. 296; s. c. 48 Am. & Eng. R. mother knowing that there was a Cas. 532; 25 Am. St. Rep. 186; 27 turn-table in the vicinity: Nagel v. Pac. Rep. 666. Missouri &c. R. Co., 75 Mo. 653. "'Bridger v. Ashville &c. R. Co., Where a child, and not the father, 25 S. C. 24. was suing for the injury, the fact "^ Ante, § 324, et seq. The ques- that the father was the watchman tlon of the contributory negligence of the railroad company, whose duty in this relation was left to the jury, it was to guard the turn-table, did where a mother allowed her boy, six not authorize a nonsuit, but the case years old, to go to a circus unattend- should have gone to the jury: Fer- ed except by his sister, aged eleven guson v. Columbus &c. R. Co., 75 Ga. years, who left the brother near the 637. 952 INJURIES FROM DEFECTS IN PREMISES. |[2d E(3. populous district where children play in great numbers.'*^' Some of these eases put the doctrine on the cold and draconic ground that chil- dren, although of tender years, are responsible for the consequences of their trespasses the same as adults, and that the mere fact that one trespassing upon the grounds of a railway company is such a child does not raise any duty on the part of the company towards the tres- passer.*^" § 1041. Railroad Companies Not Liable to Children Intruding into their Yards. — In the view of some courts, a railroad company is under no duty to fence its yards in which its cars are switched, and its trains made up, so as to protect trespassing or intruding children from dan- ger; but that if its trains are equipped with the requisite number of hands while being moved in its yards, they do not come within the rule as to liability from attractive nuisances, or peculiarly dangerous machines.* ^^ Nor does the mere gratuitous assumption on the part of the railroad company of the duty of keeping its yards clear of boys, by instructing its yardhands to drive them out, make the railroad com- pany liable, on the footing of negligence, for the failure of its serv- ants to enforce such directions.* ^^ Nor will the fact that boys have been allowed by employes of the railroad company to use a hand-car in their presence, make the railroad company liable for the death of a boy from the unauthorized use of it on Sunday, in the absence .of its servants.*^' Nor is such a car regarded in law as a thing so danger- ous in itself as to impose upon the railroad company the duty of guard- ing it or locking it, to keep trespassing children from injuring them- selves by it.*^* Nor was a railroad company liable for an injury to a "» Daniels v. New York &c. R. Co., "" Frost v. Eastern R. Co., 64 N. 154 Mass. 349; s. c. 13 L. R. A. 248; H. 220; s. c. 4 N. Eng. Rep. 527; 9 44 Alb. L. J. 398; 33 Cent. L. J. 322; Atl. Rep. 790. No recovery where 48 Am. & Bng. R. Cas. 539; 26 Am. plaintiff, an adult, knowing the loca- St. Rep. 253; 28 N. E. Rep. 283; tion of the turn-table, fell into it on Frost v. Eastern R. Co., 64 N. H. a dark night near the highway: 220; s. c. 4 N. Eng. Rep. 527; 9 Early v. Lake Shore &c. R. Co., 66 Atl. Rep. 790; Bates v. Nashville &c. Mich. 349; s. c. 33 N. W. Rep. 813; R. Co., 90 Tenn. 36; s. c. 15 S. W. 9 "West. Rep. 863. Rep. 1069; Walsh v. Fitchburg R. *^ Barney v. Hannibal &c. R. Co., Co. 145 N. Y. 301; s. c. 27 L. R. A. 126 Mo. 372; s. c. 26 L. R. A. 847; 724; 64 N. Y. St. Rep. 711; 39 N. E. 28 S. W. Rep. 1069. Rep. 1068 (turn-table unlocked, un- '^Barney v. Hannibal &c. R. Co., fenced, and near footpaths); Dela- 126 Mo. 372; s. c. 26 L. R. A. 847; ware &c. R. Co. v. Reich, 61 N. J. L. 28 S. W. Rep. 1069; O'Connor v. lUi- 635; s. c. 41 L. R. A. 831; 4 Am. nois &c. R. Co., 44 La. An. 339; s. c. Neg Rep. 522; 11 Am. & Eng. R. 10 South. Rep. 678. Cas. (N. S.) 313; s. c. 40 Atl. Rep. "^^ Robinson v. Oregon &c. R. Co., 682; Turess v. New York &c. R. Co., 7 Utah 493; s. c. 13 L. R. A. 765; 27 61 N. J. L. 314; s. c. 4 Am. Neg. Rep. Pac. Rep. 689. 520; 11 Am. & Eng. R. Cas. (N. S.) «* Robinson v. Oregon &c. R. Co., 297; McEachern V. Boston &c. R. Co., 7 Utah 493; s. c. 13 L. R. A. 765; 150 Mass. 515. ' 27 Pac. Rep. 689. 953 1 Thomp. Neg.] care of real property. small boy, who approached its train just before it came to a halt, and stood so close to one of the steps of a car that it came in contact with a basket which the boy had on his arm, and pulled him down while the railroad employes were unaware of his presenee.*^^ § 1042. Owners of Property Leaving Dangerous Objects Unguard- ed, Liable to Trespassing Children. — In the leading English case upon this subject,*^* which has been generally followed in this country, it appeared that the defendant's servant left his horse and cart unat- tended in a populous street. The plaintiff, a child seven years old, got upon the cart in play ; another child made the horse move on while the plaintiff was in the act of getting down from it, in consequence of which the plaintiff was thrown down and had his leg broken. The defendant was held liable in an action on the case, although the plaint- iff was a trespasser, and contributed to the mischief by his own act. It was properly left to the jury to find whether defendant's servant was guilty of negligence, and if so, whether that negligence caused the injury in question. In American cases the omission of railway com- panies to fence their tracks, as required by statute, has been held an element properly taken into consideration by the jury in determining the liability of the railway company for killing or injuring children trespassing thereon.*^' In the view of some American courts, the fact that a boy, let us say, between eleven and twelve years old, knows that he has no right to trespass upon an unguarded and unfastened turn- table, to which he is attracted by his boyish desire of sport, does not conclusively impute to him contributory negligence, nor does his tres- pass excuse the railroad company which sets out the death-trap; but if he is killed while playing upon it, his administrator may recover damages for his death.''^^ So, although a railroad company undoubt- edly has a right to a clear track, yet, in the view of enlightened and humane courts, the fact that a child of tender years gets upon a rail- way track, where he is technically a trespasser, does not authorize a railway company to murder him, nor even to refrain from exercising reasonable care to avoid killing or injuring him.*^^ § 1043. Authority of the Leading Case of Lynch v. Nurdin. — The law upon this subject may be said to date from the case of Lynch v.' ""WTiitcomb v. Louisville &c. R. Mich. 559, 563. See also Marcott Co., 47 La. An. 225; s. c. 16 So. Rep. v. Marquette &c. R. Co., 47 Mich. 9; 812. s. c. on second appeal, 49 Mich. 99. •^ Lynch v. Nurdin, 1 Ad. & El. *=« Union &c. R. Co. v. Dunden, 37 (N. S.) 29; s. c. Vol. 2 Thomp. Neg., Kan. 1; s. c. 14 Pac. Rep. 504. 1st ed., p. 1140. "' Keyser v. Chicago &c. R. Co., 56 *» Keyser v. Chicago &c. R. Co., 56 Mich. 559. ' 954 INJUPaES FROM DEFECTS IN PREMISES. [2d Ed. Nurdin,^^° for it was here that the first explicit statement of the rule was made. It is important to note exactly what were the facts in this case, as its effect is sometimes misapprehended. The circumstances were, — 1. Negligence by the defendant's servant, resulting in a temptation to the plaintiff to engage in mischief ; 2. A technical tres- pass by the plaintiff, a child capable of exercising only a very small degree of care for its safety, but not so completely incapacitated in this respect as to be denominated, as a matter of law, non sui juris ;^^^ 3. Conduct by the plaintiff which in the case of an adult would clearly have amounted to negligence per se. The question of imputed negli- gence of parents or custodian in allowing the plaintiff to be at large did not arise, and the case, therefore, is no authority upon this sub- ject except by implication. Whether this case is to be still regarded as the law of England has been rendered uncertain by at least two subsequent adjudications, in which, it is true, the authority of the case, though not expressly repudiated, is decidedly shaken.*^^ On one occasion Lynch v. Nurdin was cited in the course of argument,* ^^ when Martin, B., interjected the remark, "That case was questioned in Lygo v. Newhold."*"'^ A careful reading of the case of Lygo v. Newhold will, we think, show that there Lynch v. Nurdin is in no re- spect doubted. The most that was said of the case was that its author- ity might be questioned if it decided what it plainly does not.*^^ § 1044. Shaken by the Case of Hughes v. Macfie. — The effect, how- ever, of the cases of Hughes v. Macfie and Mangan v. Atterton is less easily obviated. The former was an action for an injury caused by two children, aged respectively seven and five years, playing about the covering of a bulkhead which had been left tilted up against a wall, whereby it fell over upon them. The opinion of Pollock, C. B., while not expressly repudiating, is wholly inconsistent with that in Lynch V. Nurdin. "It appeared there was a public street in Liverpool over the whole of which, from fence to fence, the public had a right of way, subject to the existence of certain cellars. On one side of the street ''"I Ad. & El. (N. S.) 29; s. c. 1 «* 9 Exch. 302. This remark Thomp. Nag., 1st ed., 1140. would seem to have given rise to a *^ Ante, § 313. similar impression in this country. "''Hughes V. Macfie; on the same See Smith v. O'Connor, 48 Pa. St. facts, Abhott v. Macfie, 2 Hurl. & 218, 221; Government Street R. Co. Colt. 744; s. c. 10 Jur. (N. S.) 682; v. Hanlon, 53 Ala. 70, 79; Pittsburgh 33 L. J. (Exch.) 177; 12 Week. Rep. &c. R. Co. v. Vining's Administra- 315; Mangan v. Atterton, L. R. 1 tor. 27 Ind. 513, 515; Wright v. Mal- Exch. 239; s. c. 4 Hurl. & Colt. 388; den &c. R. Co., 4 Allen 286. 35 L. J. (Exch.) 161; 14 Week. Rep. *" See the argument of counsel in 388. Hughes v. Macfie, 2 Hurl. & Colt. ^^Waite V. North-Eastern R. Co., 747. El. Bl. & El. 730. 955 1 Thomp. Neg.j cake of real property. was a foot-path ; on the other side, no foot-path, but the cellars alluded to, which made that side less commodious as a way. Still, the public had a right to pass there. The defendant, who was the occupier of a house and cellar on this latter side, took off the flap or cover of his cellar and placed it against the wall on the same side, nearly upright, so that it could easily be pulled over. It may be admitted that if a person, in passing along the street, had without carelessness (as, for example, by his dress being blown against it) pulled the flap over and been hurt thereby, he might have maintained an action against the defendants for the negligence or wrong in placing the flap so that, without any negligence in the plaintiff, it was likely to do, and had done, damage to him. In the case in which Hughes was the plaintiff, the flap was pulled over by the plaintiff, a child of tender years [seven] by playing on it and jumping from it, when it fell upon him and hurt him severely. Had he been an adult, it is clear he could have maintained no action. He would voluntarily have meddled, for no lawful purpose, with that which, if left alone, would not have hurt him. He would therefore, at all events, have contributed by his own negligence to his damage. We think the fact of the plaintiff being of tender years makes no difference. His touching the flap was for no lawful purpose ; and if he could maintain the action, he could equally do so if the flap had been placed inside the defendants' premises, within sight and reach of the child. As far as the child's act is con- cerned, he had no more right to touch this flap for the purpose for which he did touch it, than he would have had if it had been inside the defendant's premises. Cases were referred to, supposed to be in favor of the plaintiff. We think none are decisive of this case, and no ease establishes a principle opposed to our view, which is that the nonsuit was right. As to the other action, in which Abbott was plaintiff, the case is different. If he was playing with Hughes, so as to be a joint actor with him, he can not maintain this action. If not, we think he can, as his injuries would then be the result of the joint negligence of Hughes and the defendants. How this is, does not appear; and we think as to his case there ought to be a new trial."*^* § 1045. And by Mangan v. Atterton. — In Mangan v. Atterton,*^'' the defendant exposed in a public place, for sale, unfenced and with- out superintendence, a machine which might be set in motion by any passerby, and which was dangerous when in motion. The plaintiff, *^ The facts as stated in the opin- upon the elder, seven years of age, ion are inconsistent with the report- Hughes. er's statement. From the latter it "' L. R. 1 Exch. 239; s. c 4 Hurl, appears that the child five years of & Colt. 388. age, Abbott, pulled the door down 956 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. a boy four years old, by the direction of his brother of seven, placed his fingers within the machine while another boy was turning the handle which moved it, whereby his fingers were crushed. The de- fendant was held not liable, because guilty of no negligence in thus exposing his machine, and moreover because the wrongful act of the plaintiff had brought the injury upon himself. Said Bramwell, B. : "The defendant is no more liable than if he had exposed goods colored with a poisonous paint, and the child had sucked them. It may seem a harsh way of putting it, but suppose this machine had been of a very delicate construction, and had been injured by the child's fingers, would not the child, in spite of his tender years, have been liable to an action as a tort-feasor? But further, I can see no evi- dence of negligence in him. If his act in exposing the machine was negligence, will his act in exposing it again be called willfully mis- chievous? If that could not be said, then it is not negligence; for between negligence and willful mischief there is no difference but of degree." The language of the learned baron is one of the weakest and least conclusive specimens of reasoning to be found in the recent English reports. Can it for a moment be maintained that a thing of such "very delicate construction" that the careless touch of a babe, almost, would ruin it, may be exposed unguarded upon the highway, without the imputation of negligence on the part of the owner? Is the contingency of a child sucking paint from the legs of a machine as probable as that of himself or other boys twirling the crank? Ob- viously not. The handle is made to turn, and every child knows its use; but the paint on the machine is not a standing invitation to suck.*^^ § 1046. ftuestion Left Unsettled in England. — From the foregoing, it would seem that in England it is yet an unsettled question whether a child of tender years, exercising all the care that can be expected of his age and capacity, guilty of a technical trespass, may recover of a defendant for an injury caused by his negligently exposing that which a child's natural instincts may bring him in contact with to his *'* It is gratifying to observe that not only guilty of negligence, but of the strong common-sense of another negligence of a very reprehensible English judge has expressly repu- character; and not the less so be- diated this decision on this point, cause the imprudent and unauthor- Citing the case, Cockburn, C. J., ized act of another may be neces- lately said : "It appears to us that a sary to realize the mischief to which man who leaves in a public place, the unlawful act or negligence of the along which persons, and amongst defendant has given occasion." them children, have to pass, a dan- Clark v. Chambers, 3 Q. B. Div. gerous machine, which may be fatal 327, 339; s. c. 7 Cent. L. J. 11; 17 to any one who touches it, without Alb. L. J. 505. any precaution against mischief, is 957 1 Thomp. Neg.] care of real property. hurt.*^" It must not be forgotten, however, that in all these cases negligence on the part of the defendant is the gist of the > action. Where, therefore, in England, where railways are fenced, even at highway-crossings, a child three and a half years old strayed upon a railway track and had its leg cut off by a passing train, it was held that in the absence of any evidence to show that the child got there through some neglect or default on the part of the company, they were not responsible for the injury.**" § 1047. Doctrine of Lynch v. Nurdin Generally Adopted in the United States. — The rule as declared in Lynch v. Nurdin received the assent of the highest tribunal in this country in the case of Railroad Company v. Stout,*^'^ where it was held that the care and caution re- quired of a child is according to its maturity and capacity only, to be determined in each case by the circumstances of that case; therefore, under certain circumstances, a railroad company might be held liable, on the ground of negligence, for a personal injury to a child of tender years in a town or city, caused by a turn-table built by the company upon its own unenclosed land, left unguarded and unlocked in a situ- ation which rendered it likely to cause injury to children.**^ The "' Consult upon this point, Town- send V. Wathen, 9 East 277. It was there ruled that if a man place traps baited with strong-smelling meat within his own grounds, so near to the highway or premises of another that dogs passing along the highway or kept on his neighbor's premises must probably be attracted by their instinct in to the traps and injured, an action would lie. Said Lord Bl- lenborough, C. J. (what is now fa- miliar law) : "Every man must be taken to contemplate the probable consequence of the act he does. What difference is there, in reason, between drawing the ani- mal into the trap by means of his Instinct, which he can not resist, and putting him there by manual force?" Surely, a child's life ought to rank as high in the estimation of the law as that of a dog! Of what avail, then, is it as a defense, that the child, in the gratification of its nat- ural instinct of curiosity or sport, has been guilty of a technical tres- pass, which would have been impos- sible but for the defendant's prece- dent wrongful act? "° Singleton v. Eastern Counties R. Co., 7 C. B. (N. S.) 289. The author does not find that the doc- 958 trine of Lynch v. Nurdin has been expressly overruled in England. In the following cases, defendants were held not liable for injuries sus- tained by trespassing children who were injured by dangerous things found on their premises: Mangan v. Atterton, 35 L. J. Ex. 161; s. c. L. R. 1 Ex. 239; Hughes v. Macfie, 2 H. & C. 744; 10 Jur. (N. S.) 682; Coleman v. Southeastern R. Co., 4 H. & C. 699; 12 Jur. (N. S.) 944. Morton, J., in Gay v. Essex &c. R. Co., 159 Mass. 238, after holding that a railroad corporation was not liable for an Injury to a ten-year- old boy, caused by an unfastened brake on a car left standing un- guarded on the public street of a city for several days, said: "It is possible a different result might have been reached in the English courts, though the law does not seem to be finally settled there." "^17 Wall. (U. S.) 657. See the charge of Dillon, J., to the jury in the court below (2 Dill. 294), and of Dundy, J., in the same case, on a previous trial (11 Am. L. Reg. (N. S.) 226). "^ To the same effect, see Keffe v. Milwaukee &c. R. Co., 21 Minn. 207; Koons v. St. Louis &c. R. Co., 65 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. same rule was decided in Kerr v. Forgue/*^ which was an action for an injury to a boy twelve years of age, occasioned by the negligence of the defendant in placing upon the sidewalk a number of barrels and coun- ters in a tottering condition, and allowing them to remain so for several weeks. The plaintifE, in passing this rubbish, on his way home from his work to dinner, put his hands upon a counter, appar- ently making a motion to jump upon it, when it fell upon him, f rac- ' turing his leg. Under the rule of "comparative negligence"*** then prevailing in Illinois, the plaintifE was allowed to recover.**^ In Birge v. Gardiner'^*'' the facts were nearly identical with those in Hughes v. Macfie.^" The defendant having set up a gate, on his own land, by the side of a lane through which the plaintiff, a child between six and seven years of age, with other children of the same neighbor- hood, were accustomed to pass from their places of residence to the highway, the plaintiff, in passing along this lane, put his hands on the gate and shook it, in consequence of which it fell upon him and broke his leg. The authority of Lynch v. Nurdin was sustained, and a con- clusion contrary to that in Hughes v. Macfie was reached.**^ The same has been decided in the case of machinery in an unprotected con- dition, and operated so near the highway as to attract the curiosity of children, who were injured by meddling with it.**'' § 1048. Doctrine of Lynch v. Nurdin Denied in Some American Jurisdictions. — The principle declared in Hughes v. Macfie^^" and in Mangan v. Atterton/^'^ charging children even of tender years with the consequences of their acts as trespassers, is followed in two or three American jurisdictions where, as I have elsewhere observed, property is put above humanity.*^^ In a leading case in Massachusetts an- nouncing this doctrine the facts were as follows: The defendant, in violation of a city ordinance, left his truck standing overnight in front of his foundry (a place where he knew children were accustomed to play), with an iron casting upon it weighing nine hundred pounds. Mo. 592. But in such a case the rail- the parents of the child were deemed road company was held guilty of no negligent in suffering it to be at negligence where it appeared that large. the turn-table, though unlocked, was "° 19 Conn. 507. constructed in an isolated place, not "' 2 Hurl. & Colt. 744. near to any public street, or place *"To the same effect, see Hy- where the public were in the habit draulic Works Co. v. Orr, 83 Pa. St. of passing. St. Louis &c. R. Co. v. 332. Bell, 81 111. 76. "' Whirley v. Whiteman, 1 Head "^54 111. 482. (Tenn.) 610; Mullaney v. Spence, '»Ante, § 269. 15 Abb. Pr. (N. S.) (N. Y.) 319. "'The case of Chicago v. Starr's *" 2 Hurl. & Colt. 744. Administrator, 42 111. 174, which *" L. R. 1 Exch. 239. was an action for a similar injury, "^Lane v. Atlantic Works, 107 was distinguished, as in that case Mass. 104; s. c. Ill Mass. 136. 959 1 Thomp. Neg.j care of real property. The casting was not trigged upon the truck, and was of such a shape as to roll off easily. The wheels of the truck were not trigged, and, when it was put in the street, its tongue was so placed that a slight movement of it was sufficient to displace the casting. Just before night, two children, one of them seven years and three months old and the other eight years old, were passing along the street, when a third boy, twelve years old, not in their company, called to them to come over and see him move the truck. They did so ; and directly upon his moving the tongue slightly, the casting rolled off, injuring the younger boy. The jury were instructed that if the plaintiff took an active par- ticipation in the acts of the boy moving the tongue, or went there as a joint actor for the purpose of encouraging him, he could not recover; but if he went there attracted by curiosity only, at the invitation of such person, he could recover if he was in the exercise of due care; which instruction was held to be correct.*'^ In an Iowa case*^* it was ruled that a school-district was not liable for the act of a person who had contracted with the district for drilling a well in the school- house grounds, in leaving his drilling-machine unlocked and un- guarded, so that in his absence one of the children was injured while playing with it.*'^ § 1049. Theory that a Child of Tender Years can not be a "Tres- passer" for the Purpose of Exonerating the Proprietor. — A case in Texas goes to the length of holding that a girl only seven years old is not to be regarded in law as a trespasser or an intruder in a building containing dangerous machinery, the doors of which are left open, although she is not there by permission or consent of the proprietor, so as to relieve him from liability for an injury inflicted upon her vmless inflicted willfully or knowingly, as would be the case with an "^ See also Lyons v. Brookline, 119 ries to children received while play- Mass. 491. ing with them, although the chil- ^^ Wood V. Independent School dren were rightfully on the prem- District, 44 Iowa 27. ises." Contra, is the better opinion *"* This case, it will be observed, of Wagner, J., in Boland v. Mis- was complicated by the considera- souri &c. R. Co., 36 Mo. 484, 490: tion of a question of respondeat su- "If, therefore, any one using dan- perior. The court, however, used gerous instruments, running ma- the following language: "We are chinery, or employing vehicles not prepared to hold that every per- which are peculiarly hazardous, son having upon his premises ma- know that infants, idiots, or others chinery, tools, or implements which who are bereft of, or have but im- would be dangerous playthings for perfect discretion, are in close or children, and in their nature afford- immediate proximity, he will be ing special temptations for children compelled ■ to the exercise of a de- to play with them, is under obliga- gree of caution, skill, and diligence tion to guard them in order to pro- which would not be required In tect himself from liability for inju- cases of other persons." 960 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. adult trespasser.* =' The reason for this conclusion seems to lie in the following language of the Supreme Court of Texas, used, through Hunter, J., in rendering its decision : "They [children] are not tres- passers or intruders within the meaning of the law, until they are old enough and intelligent enough to know and appreciate the right of the proprietor to exclude them from his premises by a simple command. They understand that they are to keep out, only when they can not get in. They pause not to read signs of warning or to inquire if they are welcome everywhere, and they must be protected from dangers they know not of."*°^ One court advances the theory that those who thus expose attractive objects to the temptation of children, are regarded as holding out an implied invitation to them to come upon the prem- ises, and play with such objects.*"^ § 1050. Invitation to Children to Come upon the Premises. — If the owner or occupier of the premises extends, expressly or impliedly, an invitation to children generally, or to the particular child who sus- tains the hurt, to come upon his premises, — then the case is entirely changed: the child is not a trespasser whose safety may be neglected, but the owner or occupier, by inviting him to come upon his premises, charges himself with the duty of exercising reasonable care to the end that he sustain no injury in consequence of dangerous pitfalls, attrac- tive nuisances, or the like. But, on the question what will constitute such an invitation, it has been well held that merely abstaining from *" Dublin Cotton Oil Co. v. Jar- a boy six years old, who goes there rard, 40 S. W. Rep. 531; s. c. aff'd with one ten years old to receive in 91 Tex. 289; s. c. 42 S. W. Rep. mash, and who slips into the tank 959. while sitting upon the edge of it: "' Dublin Cotton Oil Co. v. Jar- Findlay Brewing Co. v. Bellman, 9 rard, 40 S. W. Rep. 531, 535; s. c. Ohio C. C. 277. But this case is aff'd in 42 S. W. Rep. 959; 91 Tex. distinguishable from ordinary cases 289. of this kind, on two grounds: 1. The *"Pekin v. McMahon, 154 111. 141; dangerous thing was left in the s. c. 27 L. R. A. 206; 39 N. E. Rep. highway; 2. It was left there for 484; aff'g s. c. 53 111. App. 189. In the purpose of serving customers, such a case the proprietor of the es- and they were impliedly invited to tablishment was not relieved from come to it, and the larger boy was liability by the fact that the school such a customer. The decision of a teacher of the children had warned District Court in Pennsylvania them not to go upon the premises, (Holtzinger v. Pennsylvania R. Co. unless they were told that the warn- (C. P.), 6 Pa. Dist. R. 430), to the ing was given at the instance of the effect that a lumber company oper- proprietor: Dublin Cotton Oil Co. ating a railroad is bound, in favor V. Jarrard, 91 Tex. 289; s. c. 42 S. of a boy eleven years old, although W. Rep. 959; aff'g 40 S. W. Rep. he is a trespasser upon its property, 531. The Court of Common Pleas to exercise ordinary care in main- in Ohio has held that a brewing taining and in running its engines company, which places in a street and cars thereon, though perhaps a tank containing hot mash, from commendable, is contrary to the pre- which it is taken by a purchaser vailing law. when cold, is liable for injuries te VOL. 1 THOMP. NEG. — 61 UOX 1 Thomp. Neg.] cake of real property. driving children off from a lot where they are playing, is not an in- vitation which will impose on the owner or occupier any duty or re- sponsibility for the condition of the lot.*°® § 1051. Accidents Ascribed to Childish Inexperience, Indiscretion and Misfortune. — If we do not attend so much to what the judges say as to what they in fact hold, we shall find that, in some of the cases where their expressions seem odious to justice, the injury which befell the trespassing child was rightfully ascribed — not to his negligence where he was so young as to be incapable of negligence, nor to the negligence of his parent, guardian or custodian for which he ought not to answer, — ^but to accident or misfortune attributable to his in- fantile inexperience and helplessness. Thus, in a case where the opinion contains expressions which are unworthy of a court of justice, it appeared that a boy six or seven years old, got upon a ball attached to a chain used as a hoisting apparatus for a mill, while it was in motion, for the express purpose of riding up on it, although warned by a companion not to do it, and rode to the height of three stories, when, becoming frightened, he lost his hold, fell to the ground and was killed. Here it does not seem to have been an unjust conclusion that the proximate cause of the injury which befell the boy was his own childish fault, and not any negligence on the part of those in charge of the machine ;*°° but we can not possibly agree to the statement of doctrine contained in the opinion that they owed him no more duty than if he had been an adult, and no duty at all, because he was a trespasser. So, where the plaintiff, a boy ten years old, in company with other boys, was in a railway box car standing on a track which was being made up into a train, and the train men had no knowledge that the boys were in the car, and started the train up, and the boys, becoming frightened, pushed the plaintiff out of the car, injuring him, — the conclusion was plain that the company was not liable. The boy suffered merely the consequences of his childish indiscretion, and the company violated no duty which it owed to him.*''^ For the same reason, no recovery of damages can be had for an injury to a boy eleven years old, caused by his indiscretion in attempting to climb over the couplings of freight ears to which a locomotive is attached, although the cars may unnecessarily obstruct the public street. *°^ So, where a boy eleven years old attempted to catch hold of a railroad train moving at the rate of from twenty to thirty-'five miles an hour, *=» Galligan v. Metacomet Man. Co., ■"" Curley v. Missouri &c. R. Co., 143 Mass. 527; s. c. 3 N. B. Rep. 705. 98 Mo. 13; s. c. 10 S. W. Rep. 593. ""Rodgers V. Lees, 140 Pa. St. 475; "= Missouri &c. R. Co. v. Cooper, s. c. 12 L. R. A. 216; 21 Atl. Rep. 57 Kan. 185; s. c. 45 Pac. Rep. 587. 399. 962 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. the injury which he thereby received was ascribed to his own folly, and damages could not be recovered therefor.^"^ So, if an infant, even of tender years, climbs upon or catches hold of a locomotive or car and receives an injury which is the direct consequence of its tres- pass, no damages can be recovered for its hurt, but the most charitable view will ascribe it to misfortune, springing from childish indiscre- tion.*"* So, a boy nearly nine years old who was injured while par- ticipating with another child in throwing over a stone slab leaning against a private building, but projecting into a public street, was deemed guilty of such contributory negligence as would prevent a re- covery from the owner of the building and the slab, notwithstanding the injury occurred while he was doing what a child of his age might naturally be expected to do.*'" Article VI. Falling Walls. Section Sectioit 1055. Liability for damages from 1060. Injuries caused by walls fall- falling walls. ing upon adjacent premises. 1056. Tendency of modern courts to 1061. Liability for dangerous walls, place this liability on the as between landlord and ten- footing of negligence. ant. 1057. Decisions whicb assimilate it 1062. Proximate and remote dam- to the liability of an insurer. ages from falling walls. 1058. Duty of owners or lessees of 1063. Contributory negligence in buildings having defective case of injuries from falling walls. walls. 1059. Further as to this duty and 1064. Liability of owners of party- corresponding liability. walls. § 1055. Liability for Damages from Falling Walls.^ — The liability of the owner of buildings for damages caused by the falling of their walls may arise in three different relations: 1. Where the damage happens to a traveller on the adjoining street or sidewalk, here the governing principle is that the wall of a building abutting a public highway which is so unsafe that it is liable to fall upon the highway, injuring persons lawfully there, is a public nuisance.^^" Such being the case, the extent to which the question of the negligence or dili- gence of the proprietor in inspecting and supporting the wall and preventing the catastrophe comes into play, is more doubtful than in "'Payne v. Chicago &c. R. Co., 136 233; s. c. 34 N. E. Rep. 259. Com- Mo. 562; s. c. 28 S. W. Rep. 308. pare Birge v. Gardiner, 19 Conn. "* Barney v. Hannibal &c. R. Co., 507. 126 Mo. 372; s. c. 26 L. R. A. 847; a This section is cited in §§ 624, 28 S. W. Rep. 1069. 1199, 1213, 1245. See also post, § 1213. *».McGuiness v. Butler, 159 Mass. «« Post, § 1188, et seq. 963 1 Thomp. Neg.J care of real property. other relations. 2. Where the damage happens to a coterminous land- owner, here the governing principle is that, while the proprietor whose wall is allowed to become unsafe is not an insurer in respect of its safety, yet he is bound to exercise reasonable care and skill to the end of inspecting it with the view of ascertaining whether or not it is dan- gerous, and to the end of repairing it if it is found to be so.*" 3. Where the injury received from the falling of the wall is visited upon some third person while upon the grounds of the proprietor whose wall it is; in this relation the principles already considered govern : If such person is a trespasser or bare licensee, then, accord- ing to the prevailing opinion, he takes the premises as he finds them — the owner owes no special duty to him — ^he accepts the risk — and the owner is not liable to him in damages.*"^ But if he comes upon the premises by the invitation, express or implied, of the owner, to do business with him, or to be his guest, then the law puts the owner un- der the duty of exercising reasonable care and skill to the end that the person so coming upon his premises is not injured by reason of their defective condition.*"' And, of course, there is no difference in theory of law in this respect between an injury received from a dangerous hole or other man-trap, such as we have already considered, and an injury received by a dangerous wall. § 1056. Tendency of Modern Courts to Place this liability on the rooting of Negligence. — Where the duty arises, in any of the fore- "' Factors' &c. Ins. Co. v. Werlien, on the land of an adjoining owner, 42 La. An. 1046; s. c. 11 L. R. A. was liable for damages caused by 361, and note; Cork v. Blossom, 162 the fall of the tree in a heavy gale: Mass. 330; 26 L. R. A. 256; Nord- Gibson v. Denton, 4 App. Div. (N. heimer v. Alexander, 19 Can. S. C. Y.) 198; s. c. 38 N. Y. Supp. 554. 248. The property owner may thus To say that the owner of a building, become liable in damages to an ad- whose walls are cracked and weak- joining owner for the fall of a water ened so that they become a menace tower which the former erects upon to person and property in the neigh- an insecure foundation: Rigdon v. borhood, must exercise a very high Temple Waterworks Co., 11 Tex. degree of care in removing them Civ. App. 542; s. c. 32 S. W. Rep. (Steinbock v. Covington &c. Bridge 828. The owners of two adjoining Co., 4 Ohio N. P. 229; s. c. 6 Ohio buildings, who neglect to maintain Bee. 328), is no more than to say a suflBcient wall to support them, that he must exercise a degree of whereby they simultaneously fall care ' proportionate to the danger : upon and crush the property of an- ante, § 25. Construction of Civil other proprietor, may become jointly Code of Louisiana, art. 2322, in con- and severally liable to him for the in-- nection with art. 670, with reference jury on the ground of being concur- to the liability of an owner neglect- rent tort feasors: Johnson v. Chap- ing to repair a building, for dam- man, 43 W, Va. 639; s. c. 28 S. E. Rep. ages caused by its fall: McConnell 744. On the same principle, a pro- v. Lemley, 48 La. An. 1433; s. c. prietor who allowed a decayed tree 34 L. R. A. 609; 20 So. Rep. 887. to remain standing upon her prem- "' Ante, § 946. ises, in close proximity to a house *™ Ante, § 967, et seq. 964 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. going relations, of keeping the walls of one's building in a safe con- dition, the tendency of modern decisions is not to make the owner an insurer but to determine his liability upon a solution of the inquiry whether he has exercised reasonable or ordinary care and skill.*'" § 1057. Decisions which Assimilate it to the Liability of an In- surer. — The owner of a building rests under a primary duty, toward travellers on the adjacent :highway, towards adjoining proprietors, and towards third persons lawfully on his premises, by his invitation, express or implied, to keep it in such a state of repair that it will not injure such persons by reason of its falling upon them. Where this duty exists, he is, according to one judicial conception, hound to know their condition;*'^ and it will be no excuse for him, under this theory, that his ignorance resulted from the fact that the defects which caused the wall to fall were difficult to detect.*''^ Under this rule — and probably under any rule — it is quite immaterial that the wall was rendered unsafe through natural decay or the acts of trespassers, pro- vided it was within his power to prevent it from falling into an un- safe condition.*'" But this implies that he is an insurer against the consequences of his negligence in this relation, which, as we shall more fully see, is not the modern conception. § 1058. Duty of Owners or lessees of Buildings having Defective Walls. — Under the modern conception, the owner of the building is answerable for the failure to exercise reasonable care and skill; and this puts him under an affirmative and continuing duty of inspection, but exonerates him from liability where the defect would not have been discovered in time to repair it before the accident, provided he had discharged this duty of inspection.*'* On the other hand, if, upon coming into possession of the premises he discovers that the wall is dangerous, it becomes his immediate duty to cease maintaining it in "° See, in conformity with this in this relation, see Cuddy v. Peo- principle, Anderson v. Bast, 117 Ind. pie's Ice Co., 153 Mass. 366; s. c. 26 126; s. c. 2 L. R. A. 712; 28 Cent. L. N. E. Rep. 869; Murray v. Usher, J. 362; 19 N. E. Rep. 726; Cuddy 46 Hun (N. Y.) 404; s. c. 11 N. Y. v. People's Ice Co., 153 Mass. 366; St. Rep. 789; aff'd 117 N. Y. 542; s. c. 26 N. E. Rep. 869; Hummell v. Pasquini v. Lowery, 44 N. Y. St. Rep. Seventh Street Terrace Co., 20 Ore. 339; s. c. 18 N. Y. Supp. 284. 401; s. c. 26 Pac. Rep. 277; Simmons *" Tucker v. Illinois &c. R. Co., 42 v. Elliott, Montreal L. Rep., 5 Super. La. An. 114; s. c. 7 South. Rep. 124. Ct. 182; Lynds v. Clark, 14 Mo. App. '"Barnes v. Beirne, 38 La. An. 74; Cork v. Blossom, 162 Mass. 330; 280. s. c. 26 L. R. A. 256; 38 N. B. Rep. '"Tucker v. Illinois &c. R. Co., 42 495; 45 Am. St. Rep. 362; Leaven- La. An. 114; s. c. 7 South. Rep. 124. worth Lodge &c. v. Byers, 54 Kan. "'Murray v. Usher, 46 Hun (N. 323; s. c. 38 Pac. Rep. 261. As to Y.) 404; s. c. 11 N. Y. St. Rep. 789; what will be evidence of negligence s. c. aff'd 117 N. Y. 542. 965 1 Thomp. Neg.J care of real property. that condition, and to cease contributing to or participating in such maintenance.*' '^ He must either talce it down, or else so repair it as to malje it safe. This principle is especially applicable in the case of walls rendered dangerous by conflagrations, and it is of peculiar force where the owner has been warned that the wall is dangerous. Here, if the owner allows the dangerous wall to stand after the lapse of sufficient time to enable him either to remove it, to shore it up, or re- pair it, he will be liable for damages caused by its blowing over by a high wind, not of that force which is regarded as a vis major in the civil law or the "act of God" in the common law.*'" Nor will the fact that the fire department of the city has taken possession of the ruins and made a test and pronounced the walls safe, excuse the pro- prietor from the performance of his duty in respect of their safety, where he is not excluded from possession.*'' Nor can such liability be evaded by the owner, on the ground that an insurance company has taken possession for the purpose of repairing a portion of the wall, such portion not being included in the part which falls.*'* § 1059. Further as to this Duty and Corresponding Liability. — On the other hand, the rule which exonerates the owner from liability as an insurer and ^-hich is satisfied with the exercise of reasonable care and skill on his part, refuses to visit him with responsibility where the wall is blown down during an extraordinary storm, such as might well be attributed to the "act of God," if he has exercised such care in its construction and maintenance as persons of ordinary prudence would exercise under the same circumstances.*" Nor is the fact that a building has been demolished during an unprecedented storm evi- dence of negligence to charge the owner under the rule of res ipsa loquitur,*^" though the falling of a wall under other circumstances might be.**^ This duty of exercising care, being absolute in its na- ture, can not be devolved upon others, but it is one of those absolute duties which rests upon every owner of fixed property. It is, there- *"> Timlin v. Standard Oil Co., 54 perative character as to fall under Hun (N. Y.) 44; s. c. 26 N. Y. St. the head of a toorTc of necessity, Rep. 42; 7 N. Y. Supp. 158; rev'd as within the meaning of exceptions to to another point, in 126 N. Y. 514, statutes prohibiting work on Sun- which sustains the doctrine laid day; and the obligation rests upon' down in the text. the proprietor to perform the duty "° Nordheimer v. Alexander, Mon- on Sunday, as well as on a secular treal L. Rep. 6 Q. B. 402; s. c. day: Dixon v. Wachenheimer, 9 affirmed 19 Can. S. C. 248. Ohio C. C. 401; s. c. 3 Ohio Dec. 1. "'Dixon V. Wachenheimer, 9 Ohio ""Gouts v. Neer, 70 Tex. 468; s. C. C. 401; s. c. 3 Ohio Dec. 1. c. 9 S. W. Rep. 40. ™Knoop V. Alter, 47 La. An. 570; "^ Turner v. Haar, 114 Mo. 335; s. c. 17 South. Rep. 139. And plain- s. c. 21 S. W. Rep. 737. ly this duty Is one of such an im- '^'■Ante, § 15. 966 - INJURIES FROM DEFECTS IN PREMISES. [2d Ed. fore, quite immaterial by what grade of agent or servant the owner assumes to perform it; he will be answerable for the negligence of that agent or servant, under the rule of respondeat superior. He can not, for example, shift the responsibility upon an independent con- tractor, but he is liable for the negligence of that contractor in failing to perform the duty.**^ § 1060. Injuries Caused by Walls Falling upon Adjacent Prem- ises, — The principle that one who causes anything to be done upon his own land which, if not properly safeguarded, is likely to lead to mis- chief*^ ^ has been so applied as to hold that the owner of a building which has been burned out so that the walls are left standing, who attempts to remove the walls by dangerous methods, whereby they fall, injuring the property of an adjoining owner, must pay damages to that owner, provided the walls fell through his failure to exercise reasonable care in effecting their removal, although the work was done by an independent contractor employed by him, who was experienced in such work.*** The governing principle in such cases, is that else- where alluded to,**° that the owner of property is under a social duty, absolute in its nature, to exercise reasonable care according to the cir- cumstances, to the end that his neighbor be not injured. Where the owner of a building has knowledge of the defective condition of its wall, and negligently omits to shore it up, he can not avoid liability for the damage caused by its fall on the ground that the property on which it stood was in the possession of an insurance company, for the purpose of repairing a portion of the wall which did not include that which' fell.**" The owner of a building who negligently maintains a defective and dangerous wall, may become liable for an injury to a fireman caused by a fall of the wall against which the fireman has placed a ladder, which he has mounted in an effort to put out a fire in the building.*" § 1061. Liability for Dangerous Walls, as between Landlord and Tenant. — The rule of law on this subject is said to be well settled, to *^' Ante, § 652; Wilkinson v. De- Pitcher v. Lennon, 12 App. Div. troit Steel &c. Works, 73 Micli. 405; 356; s. c. 42 N. Y. Supp. 156. s. c. 41 N. W. Rep. 490; Lawver v. •''Daniel v. Railroad Co., L. R. 5 McLean, 10 Mo. App. 591. The fact H. L. Cas. 63, per Lord Colonsay. that the huilding department of the "* Dillon v. Hunt, 11 Mo. App. 246; city has approved the plans of a s. c. aff'd 82 Mo. 150. See also Leav- building, does not preserve the enworth Lodge v. Byers, 54 Kan. owner from liability for injuries 323; s. c. 38 Pac. Rep. 261. caused by its fall -which fall was *^ Ante, § 694. due Or the fact that the plans were "«Knoop v. Alter, 47 La. An. 570; defective, and called -for a construe- s. c. 17 South. Rep. 139. tion in violatioss of the statute law: "'TCitchen v.. Carter, 47 Neb. 776; s. c. 66 N. W. Rep. 855. 967 1 Thomp. Neg.] care op real property. the effect that the tenant is bound to repair the premises leased by him. But to this rule there are two exceptions : — 1. Where the landlord has, by express agreement with the tenant, agreed to keep the premises in repair. 2. Where the premises are let by the landlord with a nui- sance upon them. In both of these cases the landlord is liable to the public for an injury caused by their defective condition. It would seem to follow that where the defective condition is due to the manner in which the house or other structure was originally built, the land- lord is prima facie liable for any injury thereby caused. In the ab- sence of any contract on the subject of repairs between the landlord and the tenant, the landlord is responsible for injuries to third per- sons through the defective condition of the premises. But this rule is applicable only where the entire building, containing a number of different apartments, is let to different tenants. In this latter case each tenant is responsible only for the defective condition of so much of the premises as is included within his lease, leaving the landlord liable for every part not leased to any of his tenants. This, in the case of a tenement or office-huilding , would impose the liability upon the landlord in case of defects in vmlls, areas, sidewalks and the like. Aside from this, it is held that the landlord is liable for injuries caused by defects in his building which consist of portions overhang- ing a street, although the building is not actually occupied by him or by his tenants.*^* When, therefore, the oivner of a building who had control of a fire wall thereon, knowingly or negligently permitted a wire to remain attached thereto, with knowledge that the wall was ren- dered dangerous thereby, he was held liable for an injury caused by its fall.*89 § 1062. Proximate and Remote Damage from Falling Walls. — The question what damages accruing from such a source are to be deemed proximate and what remote has been considered in another place j*"" but a decision may be noted to the effect that if the falling of the building causes a fire to ignite which spreads into an adjoining build- *'*"See O'Connor v. Andrews, 81 consideration of this question of Tex. 28; s. c. 16 S. W. Rep. 628, — liability as between landlord and where these principles are stated, tenant, see post, § 1214. It has been but in language somewhat different held in Texas that the owner of a from that employed by the author, building is liable for personal inju- See, also, Shipley v. Fifty Asso- ries occasioned to a passerby on a elates, 101 Mass. 251; Kirby v. Boyls- public street by the fall of a portion ton Market Asso., 14 Gray (Mass.) thereof through neglect of repair, 249 ; Sawyer v. McGillicuddy, 81 Me. although he is not shown to be the 3l8. occupant: O'Connor v. Curtis (Tex.), *=" O'Connor v. Andrews, 81 Tesc. 18 S. W. Rep. 953 (no off. rep.). 28; s. 0. 16 S. "W. Rep. 628. For a *" Ante, § 43, et seq. 968 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. ing, the owner through whose negligence the building fell may be held liable for such damages.*"^ § 1063. Contributory Negligence in Case of Injuries from Falling Walls, — Here, as in other cases, the contributory negligence of the person suing for the injury may operate as a total or partial defense, according to the rule of the particular jurisdiction. In Louisiana, the fact that the plaintiil exposed his property imprudently to the injury which happened to it by the falling- of the defendant's wall, is a cir- cumstance which will be looked to in reducing the damages.^^^ It has been held that one whose personal property is destroyed or injured by another's negligence in taking down the wall of an adjoining building that has been partially burned, is not guilty of contributory negli- gence in not removing his goods from the building occupied by him, where the chief of the fire department advised him that it was unsafe to go into the building, and where the falling of the wall was caused by negligence in taking it down.*"' § 1064. Liability of Owners of Party Walls. — The owner of a party wall, a part of which is not in use by him, but is in use by the other owner, is not bound to build a fence at the top of the part which he does not use, to prevent the fall of a person who goes upon the roof of the other owner. *°* It has been held that one of the two owners of a party wall can not recover damages from the other for its fall, due to the failure of the latter to secure it after a fire upon his premises, as the wall is the property of both, and neither is liable to the other for any act of negligence which is a mere omission.* '° With a better sense of justice, another court has held that one of the two owners of a party wall may recover from the other damages arising from the re- moval or weakening of its support, caused by work negligently per- formed on the adjoining premises, whether the negligence was that of the adjoining owner's servants, or his contractors, or their servants.*'^ One of two adjoining owners of a party-wall, who carries it up above its original height, is not liable for damages to the other owner from the fall of the wall upon his building, in the absence of negligence on his part, where the wall was agreed to be built for a three-story build- ing, and the plaintiff elected to build his building but two stories high.*" *"Hine V. Gushing, 53 Hun (N. '''Woods v. Miller, 30 App. Div. Y.) 519; s. c. 24 N. Y. St. Rep. 778; 232; s. c. 52 N. Y. Supp. 217. 6 N. Y. Supp. 850. "" Mickel v. York, 66 111. App. 464. "2 Factors' &c. Ins. Co. V. Werlein, **Briggs v. Klosse (Ind. App.); 42 La. An. 1046; s. c. 8 South. Rep. s. c. 31 N. E. Rep. 208. 435; 11 L. R. A. 361. '"Negus v. Becker, 143 N. Y. 303; «»' Stone v. Hunt, 114 Mo. 66; s. c. s. c. 25 L. R. A. 667; 62 N. Y. St. 21 S. W. Rep. 54. Rep. ol3; 42 Am. St. Rep. 724; 38 969 1 Thomp. Neg.J care of real property. Article VII. Who Liable where there is Ant Liability at All. Section Section 1067. Proprietor liable where the 1070. His liability to adjoining land- duty is of an absolute nature. owners. 1068. As where his property abuts 1071. Whether trustees liable. the highway. 1072. When municipal corporations 1069. Or where he maintains dan- liable — When not. gerous nuisances on his land 1073. Who else liable, and who not. near the highway. § 1067. Proprietor Liable where the Duty is of an Absolute Na- ture. — As seen in another relation,*'^ in many cases the duty of the land-owner is absolute in its nature, as where a particular act or neglect is inherently dangerous, and is hence in the nature of a nui- sancej*^^ or where it is forbidden by a valid statute or municipal ordi- nance.°°" Duties of this nature, as we have seen,^"^ can not be shifted by the proprietor upon others, so as to exonerate himself. For ex- ample, the owner of a building can not shift the duty under which he stands to adjoining owners, or to passengers on the sidewalk or street, of keeping his building in repair, by committing the repair of it, after a fire, to an insurance company, which has reserved in a policy the right to repair in case of fire;'"'^ nor, under such circumstances, could the duty be shifted upon an independent contractor.^"^ So, a land- lord who contracts for repairs on his building, which, from their na- ture, may render the building unsafe unless proper precautions are taken, is bound to see that such precautions are taken, and his failure to do so renders him liable for injuries received on account of such neglect.^"* So, where a sublessee of a lot sold sand to a customer, and permitted him to deposit it upon the lot which had been leased for that purpose, and he deposited it there in such quantities that the pressure of the pile broke down a building on an adjoining lot, the sublessee was liable, and could not shift the liability upon the cus- tomer.^ °° N. E. Rep. 290; reversing s. c. 68 ""^Barnes v. Masterson, 38 App. Hun (N. Y.) 293; s. c. 52 N. Y. St. Div. 612; s. c. 6 Am. Neg. Rep. 143; Rep. 283; 22 N. Y. Supp. 986. 31 Chic. Leg. News 280; 56 N. Y. "^Ante, §§ 665, 667. Supp. 939. That a storekeeper who ""Ante, § 652. leaves a skid without guard or rail- ^°°Ante, §§ 648, 649. ing upon a public stairway in his ^^ Ante, § 645, et seq. store, is guilty of actionable negli- "^ Steppe V. Alter, 48 La. An. 363; gence. — see Quirk v. Seigel-Cooper s. c. 19 South. Rep. 147. Co., 26 Misc. (N. Y.) 244; s. c. 56 «>= Ante, § 648, et seq. N. Y. Supp. 49. =-■* Robbins v. Atkins, 168 Mass. 45; s. c. 46 N. E. Rep. 425. 970 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. § 1068, As where his Property Abuts the Highway. — Referring to a doctrine hereafter stated/"' it is the settled law that the owner of property which abuts a public highway is under a positive duty to keep it from becoming a cause of danger to the public, by reason of any defect therein, whether in original construction, in repair, in use, or in management, which reasonable care can guard against. ^"^ For example, an owner or occupier who permits a sidewalk in front of his premises to become obstructed by a truck and skids for an unreason- able length of time beyond that necessary for loading and unloading, thus forcing pedestrians who desire to pass along the street to use a platform or stoop on his premises, is bound to see that the platform or stoop is kept reasonably safe, and is liable for injuries resulting from its unsafe condition.^"^ Where an owner maintains a vault in front of his business block, with the consent of the authorities, such consent relieves him from the imputation of being a trespasser, and places him simply in the position of being liable only in case he main- tains it negligently. °°'' Hence, if a person using the sidewalk is in- jured in consequence of the breaking of a flagstone in the sidewalk over the vault, the owner will or will not be liable, accordingly as it shall be found whether or not such breaking was due to his negli- gence.^^" The rule of liability here stated is no doubt modified in those jurisdictions where a municipal lot-owner owes no legal duty, either to build, to maintain, or to repair the sidewalk in front of his premises.^^^ But even in such a case, where, for his own purposes, he makes an area under a sidewalk which, if not properly protected, is likely to cause injury to pedestrians thereon, he will become liable for damages so happening to them, either upon the theory of negligence or of nuisance.^^^ § 1069. Or where he Maintains Dangerous Nuisances on his Land Near the Highway. — The rule considered in this paragraph is not confined to cases where the property of the land-owner actually abuts the sidewalk or other public travelled way, but it may also extend to cases where the source of danger erected on his premises is so near thereto that persons using the sidewalk or way are liable to come in contact with it through the ordinary accidents of travel. Thus, where the building of A. was erected ten feet from the sidewalk, and, ™Post, § 1199, et seq. ""Babbage v. Powers, 130 N. Y. "'Ferrler v. Trepannier, 24 Can. 281;^ s. c. 14 L. R. A. 398; 41 N. Y. S. C. 86. St. Rep. 521; 29 N. E. Rep. 132. •""Lmehen v. Western Electric °" Davis v. Omaha, 47 Neb. 836; Co., 29 App. Div. 462; s. c. 51 N. Y. s. c. 66 N. W. Rep. 859. Supp. 1080. ''^Post, § 1168, 1200, 1201. "" Black V. Maitland, 11 App. Div. 188; s. c. 42 N. Y. Supp. 653. 971 1 Thomp. Neg.J care of keal property. in front of its main entrance there was a pavement resembling the sidewalk, and of the same grade, and also an unprotected depressed area, and B. undertook to go to the building in the evening on a law- ful errand, and fell into the area, — it was held that A. was liable for his injury.^^^ On the other hand, a land-owner was not negligent in maintaining an unguarded excavation with well defined edges on his property, the nearest edge of which was more than twenty feet from a driveway thereon ; nor was he liable to one who, while driving on such driveway, at his invitation, lost control of his horse, which backed him into the excavation.^^* Nor does the rule which imposes upon an owner or occupier the duty not to permit any dangerous excavation to remain on his premises so near a street or highway as to injure per- sons who may accidentally stray from the same, apply where one ap- proaches the excavation hy another route f^^ nor, where a path was so maintained by a railroad company for the use of persons going to and from its station platform on business connected with it, was the com- pany deemed liable for the death of a child who fell into the excava- tion while playing along the path;^^^ a very doubtful conclusion. Nor did any liability on the part of the railroad company arise, from the fact that there was a pool near the path used for access to the station platform, into which a child fell and was drowned, where there is no evidence that tlie child was following the path, and where the path was for the use of those only who had business with the com- pany."^^ § 1070. His liability to Adjoining land-Owners. — It is quite plain that a land-owner making improvements upon his own land, may be- come liable to an adjacent owner for damages resulting from the negligent manner in which such improvements are made, although.no liability would exist for damages caused by the improvements if prop- erly made,^^° — a principle which we shall have occasion to consider when dealing with the subject of the right to the lateral support of land.'^" For the purposes of this rule a dwelling-house situated on the same parcel of land and subject to the same general ownership as that upon which a substance liable to escape and cause mischief is ac- ^"Crogan v. Schiele, 53 Conn. 186; ™ Dobbins v. Missouri &c. R. Co., s. c. 55 Am. Rep. 88 (Carpenter and supra. Loomis, JJ., dissenting). °" Dobbins v. Missouri &c. R. Co., "* Gorr v. Mittlestaedt, 96 Wis. supra. 296; s. c. 71 N. W. Rep. 656. ""Anheuser-Busch Brewing Asso. "^^ Dobbins v. Missouri &c. R. Co., v. Peterson, 41 Neb. 897 ; s. c. 60 N. 91 Tex. 60; s. c. 38 L. R. A. 573; 8 W. Rep. 373. Am. & Eng. Rail. Cas. (N. S.) 179; ^^' Post, § 1109, et seg. 41 S. W. Rep. 62; affg 40 S. W. Rep. 861. 972 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. cumulated, is to be regarded as situated upon adjoining premises, if it is in the possession of, and occupied as a family residence by a tenant of the owner, although such tenancy is a tenancy at will, by an employe of the owner, who enjoys the privilege of occupying the dwelling as a part of his compensation."^" The "improvements" were a large water tank, or stand pipe about twenty feet in diameter and one hundred and forty feet high, erected by the defendant on its premises and maintained full of water for the purpose of supplying its customers.^ ^^ § 1071. Whether Trustees Liable. — Whether a trustee of the legal title of the premises left in a defective condition, whereby a third person is injured, is chargeable with liability therefor, must, it seems, depend upon a fair construction of the instrument creating the trust. Where a trustee under a will was the naked holder of the legal title, and was not in the occupancy or in the control of the premises, — it was held that he was not so chargeable, the view being that the lia- bility depends upon possession rather than title.^^^ But where ex- ecutors or testamentary trustees are in possession of the estate, or have the right or are charged with a duty of entering for the purpose of making repairs, then it has been held that they are not liable for an injury happening to a third person through their suffering the prem- ises to get out of repair, in their character of executors or trustees, so as to make the estate chargeable for their negligence; but are liable personally and as trustees for the specific devisees, for the damages so resulting.^^^ Where the title to premises is held by executors and trustees under a will, they are not liable in their representative capacity "^ Defiance Water Co. v. Ollnger, were personally liable, but their lia- 54 Ohio St. 532; s. c. 32 L. R. A. 736; bility in their representative capa- 35 Ohio L. J. 350; 44 N. E. Rep. 238. city was not discussed, as that ques- ^^ Defiance Water Co. v. Olinger, tion did not come up in the record supra. on appeal. The court, however, in- '■-' Eisenbrey v. Pennsylvania Co. timated that, had the question ap- for Ins., 141 Pa. St. 566; s. c. 27 W. peared, their judgment thereon N. C. 560; 21 Atl. Rep. 639 ; 48 Phila. would have been in affirmance of Leg. Int. 372. See also Butler v. that of the court below. No reason Townsend, 84 Hun (N. Y.) 100; s. was hinted at upon which they c. 65 N. Y. St. Rep. 33; 31 N. Y. would base such a judgment, which Supp. 1094. would seem to be contrary to the 523 Ferrier v. Trfipannier, 24 Can. rule of the American cases cited in S. C. 86. In this case a superior this section. The effort to hold court in Canada held that where the them liable as executors of the title to the premises is held by trus- whole estate failed, for the reason tees, they will be liable for injuries that their executorship had ceased caused through the negligent con- previous to the happening of the ac- dition thereof, both personally and cident upon which the suit was in their representative capacity. On based, though they were still trus- appeal, the Supreme Court of Can- tees for specific devisees: Ferrier v. ada affirmed the doctrine that they Trepannier, 24 Can. S. C. 86. 973 1 Thomp. Neg.] care of real property. for their negligent acts; their liability, if any, is personal.^"* Even where a will creating a trust imposes upon the trustees the duty of keeping the premises in repair, they are liable personally, and not in their representative capacity, for negligently failing to keep them in repair. ^^^ § 1072. When Municipal Corporations Liable — When not.^ — The liability of a city for an injury occasioned by a pond of water on pri- vate property, not in dangerous proximity to any public street or alley, is no greater than that of a private owner of property similarly situated would be, although the city may have created the pond.'^* And we have seen that, in such a case, a private owner would not be liable. "^^ It has been held that a town is liable for injury to the health of a prisoner by confinement in an iron or steel guard house, with a tin or zinc floor covered with ice, and with broken windows, during a bitter cold, windy night, in which he suffered intensely and had his feet badly frost-bitten, when the authorities had known of its condition for months before. ^'^^ To avoid such a liability, the town must exercise ordinary care, and must afford reasonable comfort and protection from suffering and injuries to the health of its prison- gj.g 529 rpjjg general rule seems to be, that in the absence of a statute imposing such liability, a municipality is not liable for a failure to keep its jail or guard house in a habitable condition for prisoners con- fined therein, whose health suffers from its uncomfortable, unhealthful or uninhabitable condition. ^^^ But a town which chooses to use a jail ''* Norling v. AUee, 31 N. Y. St. a Consult further the title Munlci- Rep. 412 ; followed on new trial, s. c. pal Corporations in a future volume. 37 N. Y. St. Rep. 409; s. c. aff'd 131 ™ Omaha v. Bowman, 52 Neb. 293; N. Y. 622; Shepard v. Creamer, 160 s. c. 40 L. R. A. 531; 45 Cent. L. J, Mass. 496; Parker v. Barlow, 93 Ga. 412; 72 N. W. Rep. 316. 700. ''■"Ante, § 946. ""'Keating v. Stevenson, 21 App. =^« Shields v. Durham, 118 N. C. Div. (N. Y.) 604. In an action for 450; s. c. 36 L. R. A. 293; 24 S. E. damages sustained by a woman Rep. 794. from falling into a coal hole in the "^ Coley v. Statesville, 121 N. C. sidewalk, opposite premises, the 301. legal title to which was vested in a ™ White v. Board of Com'rs, 129 husband as trustee for the sole and. Ind. 396; s. c. 28 N. E. Rep. 846; separate 'benefit of his wife, it was Morris v. Board of Com'rs, 131 Ind. held that the negligence was that 285; s. c. 31 N. B. Rep. 77; Board of of the wife, and that she was liable Com'rs v. Boswell, 4 Ind. App. 133; therefor. Liability of the trustee is s. c. 30 N. E. Rep. 534; Doolittle v. expressly repudiated, the court say- Walpole, 67 N. H. 554; s. c. 38 Atl. ing: "The holder of the legal title Rep. 19; Webster v. Hillsdale, 99 is said to be a mere trustee — the Mich. 259; s: c. 58 N. W. Rep. 317; holder of a dry trust, devised to New Kiowa v. Craven, 46 Kan. 114; satisfy the requirements of a de- s. c. 26 Pac. Rep. 427; Hite v. Whit- cayed rule of law, the substance ley County (Ky.), 15 S. W. Rep. 57; and force of which has long passed Lindley v. Polk County, 84 Iowa away:" Merrill v. St. Louis, 12 Mo. 308; 50 N. W. Rep. 975. App. 466; aff'd 83 Mo. 244. 974 INJURIES FROM DEFECTS IN PREMISES. [2d Ed. of its own, where it might use the county jail as provided by statute, is liable for injuries to a prisoner's health caused by its filthy condi- tion.^i § 1073. Who Else Liable, and Who not, — Licensees (advertisers) who, under a contract with the owner or occupier of a building, use a signboard erected on the roof are not liable to a stranger who is in- jured by the signboard being blown down.^^^ A contractor to do one kind of work on a building is under no obligation to do work outside of his contract, to insure the safety of the employes of another con- tractor doing another kind of work on the building, and who is in possession and control of the same.^^^ It has been held that a vendor who has conveyed land to another and delivered possession of it, is not "'Edwards v. Pocahontas, 47 Fed. Rep. 268. °^^ Reynolds v. Van Beuren, 155 N. Y. 120; s. c. 49 N. E. Rep. 763; rev'g 10 Misc. (N. Y.) 703. ™ St. Pierre v. Neville, Rap. Jud. Quebec, 13 C. ^. 54. As to the duty of taking care for the safety of em- ployes of others engaged upon dan- gerous premises, — see Bright v. Bar- nett &c. R. Co., 88 Wis. 299; 26 L. R. A. 524, and note; Johnson v. Spear, 76 Mich. 139. Circumstances under which the owner or occupier is not liable for omitting such care, — see Freeman v. Hunnewell, 163 Mass. 210; Chapin v. Walsh, 37 111. App. 526. See also note to Mc- Connell v. Lemley, 48 La. An. 1433; s. c. 34 L. R. A. 609. One who owns a coal dock and contracts for the unloading of coal at so much per ton, and agrees to furnish the con- tractor with the appliances for doing the work, is liable to one of the con- tractor's employes injured by a de- fect in the appliances, where the contract was silent as to repairs. The owner, in such case, is charged with the duty of inspect- ing the appliances and keeping them in a safe condition to do the work: Johnson v. Spear, 76 Mich. 139. A very similar case is one in which it was held that a contractor for the erection of a building is liable for injuries sustained by an employ^ of a fire extinguisher company, under contract to place certain apparatus in the building, where he is injured through the defendant's negligence in furnishing defective staging on which the injured employe had to work: Bright v. Barnett &c. R.Co.,88 Wis. 299; 26 L. R. A. 524, and note. The owner of a building is not lia- ble for injuries sustained by a fif- teen-year-old boy, an employe of a tenant of the building, who falls through an open space back of the elevator, and between it and the rear wall of the building. His rights .were the same as those of his em- ployer, who, having hired the apart- ment with the elevator so construct- ed, the defendant is under no obli- gation to change its construction: Freeman v. Hunnewell, 163 Mass. 210. The owner of a building is not liable to an employe of an ice com- pany, who is injured by a wall fall- ing, to which he has attached an ap- paratus for hoisting the ice, where the owner of the premises has no knowledge or notice of its weak condition: Chapin v. Walsh, 37 111. App. 526. So, it has been held that one who is injured by the falling of a gallery at a party given in a pri- vate house, can not recover of the owner who had leased it as a resi- dence to the host: McConnell v. Lemley, 48 La. An. 1433; 34 L. R. A. 609, and note. 97o 1 Thomp. Neg.] care of real property. liable for an injury occurring on the following day, caused by the fall of a gate on the premises, which was obviously out of repair.^'* "^ Palmore v. Morris &c. Co., 182 were his tenants. The action in Pa. St. 82; s. c. 37 Atl. Rep. 995. It such a case must he against the one has heen held that an action will in possession: Blunt v. Aiken, 15 not lie against the former owner of Wend. (N. Y.) 522; s. c. 30 Am. Dec. land for an injury caused by his 72. Similarly, it was held that an ac- erectlon thereon of a mill and dam, tion for damages for failure to whereby the plaintiff's lands were maintain fences must be brought flowed; since defendant was not in against the occupier of the land and possession of the mill and dam when not against the owner of the fee : the injury was done, and there was Cheetham v. Hampson, 4 T. R. 318. no evidence that those in possession 976 INJUKIES FEOM ELEVATORS IN BUILDINGS. [2d Ed. CHAPTER XXXVI. INJURIES TEOM ELEVATORS IN BUILDINGS. Sectioit 1075. Injuries to trespassers and bare licensees from falling down open and unguarded elevator shafts. 1076. Whether fire patrols, letter carriers, etc., excluded from protection under this rule. 1077. Negligence in maintaining open, unguarded, and un- lighted elevator shafts. 1078. Degree of care required in the construction and operation of passenger elevators. 1079. "What this degree of care de- mands of the proprietor. 1080. Duty to give warning of de- fects. 1081. Injuries received in using freight elevators. 1082. Evidence of negligence in the construction, repair, and op- eration of passenger ele- vators. 1083. Further of evidence of negli- gence in such cases. 1084. Facts to which negligence has been imputed. 1085. Facts not regarded as raising an imputation of negligence. Section 1086. When contributory negligence ascribed to the person in- jured. 1087. Circumstances under which contributory negligence as- cribed as matter of law. 1088. Facts to which contributory negligence has not been as- cribed. 1089. Circumstances under which contributory negligence was for the jury. 1090. Instructions to juries in these cases. 1091. Notice of defects in elevators. 1092. Injuries ascribed to negli- gence of a fellow-servant. 1093. Injuries from elevators to the servants of contractors. 1094. Failing to comply with stat- utes and ordinances. 1095. Constructor of elevator not liable to the customers of his vendee, or to third persons, for defects therein. 1096. Liability as between lessor and lessee for defects in an elevator. 1097. Liability for injuries from dumb-waiters. § 1075. Injuries to Trespassers and Bare Licensees from Falling down Open and Unguarded Elevator Shafts.*^ — The principle, already explained, that the owner or occupier of lands or buildings is not bound to keep them in a safe condition nor free from pitfalls for the a This section is cited in §§ 142, 970. VOL. 1 THOMP. XEG. — 62 977 1 Thomp. Neg.J care of eeal property. protection of trespassers, intruders and bare licensees, but that such persons coming upon the premises without invitation, express or im- plied, take them as they find them,^ — has been applied in several cases where persons have been injured by falling down open and un- guarded elevator shafts.^ Thus, it has been held that a newsboy who attempts to ride in a passenger elevator after ha has notice of the rule that newsboys are not allowed to ride in it, although they are per- mitted to enter the building to ply their vocation, — is a trespasser as to any use of the elevator, so as to defeat his right to recover for in- juries received in such an attempt.^ So, where a retail butcher went into a wholesale pacMng-house to buy meats, and while there followed the foreman towards the sweat box, where meats were stored for the purpose of keeping them from freezing, and in so doing fell into an open and unguarded elevator well, it was held not a ease which would support an action, — the reason being that there was no invitation, ex- press or implied, for a customer to go to that part of the building.* § 1076. Whether Fire Patrols, Letter Carriers, etc., Excluded from Protection under this Eule. — It is to be regretted that judicial theory has extended this rule so as to put the fire patrols, employed by insur- ance companies to enter buildings and save property on the breaking out of fire, in the category of bare licensees, so that if one of them so entering falls into an unguarded elevator well this creates no liability on the part of the owner of the building, either at common law or under an ordinance relating to the safety of elevators in factories, work-shops, and other places where machinery is employed ; and this is so although the board of underwriters, in providing such fire patrols, and clothing them with such duties, act under the authorization of a ^Ante, § 946. 111. 378. One court has placed in ^Faris v. Hoburg, 134 Ind. 269; the category of iare licensees a s. c. 33 N. E. Rep. 1028; 21 Wash, father who goes to a factory to L. Rep. 474; 37 Cent. L. J. 48; Gib- carry a dinner to his son who works son V. Leonard, 143 111. 182; s. c. 32 there: Gibson v. Szieplenski, 37 111. N. B. Rep. 182; 17 L. R. A. 588; App. 601. Another court has placed affirming s. c. 37 111. App. 344; 24 in the category of trespassers a boy Ohio L. J. 441; Springer v. Byram, who remains on the premises and 137 Ind. 15; s. c. 36 N. E. Rep. 361; rides in the elevator for amusement 23 L. R. A. 244; Gordon v. Cum- after accomplishing the errand for mings, 152 Mass. 513; s. c. 25 N. E. which he came: Hinds v. E. P. Rep. 578; 9 L. R. A. 640; Turner v. Breckenridge Co., 16 Ohio C. C. 12; Klekr, 27 111. App. 391; South Bend s. c. 8 Ohio C. D. 231. Iron Works v. Larger, 11 Ind. App. ' Springer v. Byram, 137 Ind. 15 ; 367; s. c. 39 N. E. Rep. 209; ZoBbisch s. c. 23 L. R. A. 244; 36 N. E. Rep. V. Tarbell, 10 Allen (Mass.) 385; 361. Grand Tower &c. Co. v. Hawkins, ■■ Turner v. Klekr, 27 111. App. 391. 72 111. 386; Murray v. McLean, U? 978 INJUEIES FROM ELEVATORS IN BUILDINGS. [2(i Ed. public statute. ' A theory of this decision is that although such per- sons have an implied license to enter buildings, which have taken fire to save property, under the principles of the common law,® — yet this license carries with it no duty on the part of the owner of the building to provide in any special manner for the safety of such liceiftees.'^ It is, however, a subject of congratulation that letter carriers who, in the discharge of their duties, enter buildings occupied by tenants, to de- liver their mails, are not placed in the category of bare licensees, but are deemed to come upon the premises under an implied invitation; so that if such a carrier, in the discharge of his duties, coming into a tenant building, by the usual and provided way, falls into an un- guarded and unlighted elevator well, the owner of the building will be liable for the damages.^ § 1077. Negligence in Maintaining Open, Unguarded, and TJnliglit- ed Elevator Shafts. — Assuming that the person who is injured by fall- ing down an open and unguarded elevator shaft in a building does not belong to the class of persons described as trespassers, intruders, or bare licensees, so that he is entitled to recover damages for his hurt, provided the owner or occupier of the building is negligent in not properly guarding or lighting the elevator shaft, — then the lead- ing inquiry is, what will -be evidence of such negligence ? Whether the manner of constructing and guarding such a shaft in a given in- stance complies with the obligation of taking reasonable care for the safety of persons coming upon the premises of the owner or occupier of the building, by his express or implied invitation, will be a question for a jury, — assuming, of course, that there is evidence, from which fair-minded men could infer a want of such care." Generally speak- ing, it is actionable negligence to leave the door to a passenger elevator shaft open and unguarded, so that persons taking the usual course to enter the elevator car are liable to fall down the shaft. ^° And one court, applying a doctrine already considered, ^^ has held that an as- cending and descending cage of an elevator is such an attraction to children that to leave an unguarded and open door, or one which may readily be opened from the outside, — ^may constitute negligence on the "Gibson v. Leonard, 143 111. 182; s. c. 32 N. B. Rep. 182; 17 L. R. A. s. c. 32 N. E. Rep. 182; 17 L. R. A. 588. 588. The court construed the ordi- 'Gordon v. Cummings, 152 Mass. nance, and probably correctly, as in- 513; s. c. 9 L. R. A. 640; 25 N. E. tended merely for the protection of Rep. 578. employes. "O'Brien v. Tatum, 84 Ala. 186; ° See Proctor v. Adams, 113 Mass. s. c. 4 South. Rep. 158. 376, where this was held. " Haymarket Theater Co. v. Ros- ' Gibson v. Leonard, 143 111. 182; enberg, 77 III. App. 183. "A/ife, § 1031, et seq. 979 1 Thomp. Neg.] care of real property. part of the owner, when children are allowed to play where they may be injured by it.^^ But where several different occupants of a build- ing had the use of the elevator and it was not made to appear by the plaintifE which occupant had used the elevator last, leaving it unclosed contrarjrto a statute,^ ^ it was held that there could be no recovery, simply because the evidence failed to connect the defendant with the careless act which resulted in the injury to the plaintiff.^* Where there is a statute imposing upon the owners of buildings the duty of providing trap or automatic doors in elevator wells, and making a neglect of this duty a misdemeanor, — then, on principles already con- sidered,^^ the failure to perform this statutory duty is negligence per se, and gives a prima facie right of action to any person injured there- by; though, under the New York doctrine,^" it is prima facie evidence of negligence only.^'' It has been held, — to adopt the syllabus given in an unofficial publication,^* — ^that "leaving open, unguarded, and unlighted, after dark, the entrance from a street to an elevator well^ which is of the same general appearance as the entrance to a hallway leading to the building, from which it is separated by a post only a foot wide, — will justify a jury in finding the owners of the building, who have control of the elevator, guilty of negligence, in an action against them for damages by one who falls into the well while rightfully seeking to enter the building, although his business is with a tenant occupying another part of the building."^' § 1078. Degree of Care Hequired in the Construction and Opera- tion of Passenger Elevators. — Modern judicial authority assimilates the legal status of the owners or occupiers of buildings who construct or operate passenger elevators therein, whereby persons are conveyed from one story in the building to another, to that of a common carrier of passengers and imposes upon such persons the same extraordinary obligation of care and skill. ^^ The reasons of this rule need not be '"Siddall V. Jansen, 168 111. 43; 637; s. c. affirmed 62 Fed. Rep. 189; s. c. 39 L. R. A. 112; 48 N. E. Rep. s. c. 25 L. R. A. 33; 32 Ohio L. J. 191; rev'g s. c. 67 111. App. 102. 139; Goodsell v. Taylor, 41 Minn. ^N. Y. Laws 1874, ch. 547, § 5. 207; s. c. 42 N. W. Rep. 873; 4 L. "Harris v. Perry, 89 N. Y. 308; R. A. 673; Hartford Deposit Co. v. reversing s. c. 23 Hun (N. Y.) 244. Sollitt, 172 111. 222; 50 N. B. Rep. 178; ^'Ante, § 10, and other sections aff'g 70 111. App. 166; Field v. there cited. French, 80 111. App. 78; Kentucky ^'Ante, § 11. Hotel Co. v. Camp (Ky.), 30 S. W. "Freeman v. Glens Falls Paper 1010; 17 Ky. L. Rep. 297 (not ofE. Mill Co., 39 N. Y. St. Rep. 621; s. c. rep.); Riland v. Hirchler, 7 Pa. Su-. 15 N. Y. Supp. 657. per. Ct. 384 [citing Treadwell »9L. R. A. 640. v. Whittier, 80 Cal. 574; s. c. "Gordon v. Cummings, 152 Mass. 5 L. R. A. 498; Mitchell v. 513; s. c. 9 L. R. A. 640; 25 N. B. Marker, 22 U. S. App. 325; s. c. 578. 10 C. C. A. 306 ; 25 L. R. A. 33 ; 62 Fed. =" Marker v. Mitchell, 54 Fed. Rep. Rep. 139]; Southern Bldg. &c. Asso. 980 INJURIES FROM ELEVATORS IN BUILDINGS. [2d Ed. enlarged upon.. Obviously there can be no distinction between a gen- eral undertaking to carry passengers vertically and the similar under- taking to carry them horizontally. The carrier in each case is the bailee, so to speak, of human beings, and has their lives in his cus- tody. ^^ Hence, some of the cases say that persons operating passenger elevators are carriers of passengers, and subject to the same responsi- bilities.^^ The degree of care which the law puts upon carriers of passengers, will be considered in a future volume. It is, speaking genera,lly, the highest degree of care which human skill and foresight can bestow ; or, as was said in a case of the kind under consideration, "the highest degree of care which human foresight can suggest."^' Whilst a carrier of passengers is not an insurer, the law demands of him such a degree of care that "care short of the highest degree be- comes, not ordinary care, but absolute negligence."^* Therefore, it has been held not error, though possibly inapt, to charge the jury in an action for damages for injury due to the breaking of the rope of a passenger elevator, that the law puts upon persons operating such machines "the highest degree of care consistent with the possibility of injury."^' § 1079. What this Degree of Care Demands of the Proprietor. — The obligation of using this degree of care puts upon one who under- takes to control and operate a passenger elevator the duty of providing servants experienced and skillful, for that kind of work; and it has been said that the standard of due care for an elevator man is that care which may be reasonably expected of an elevator man of skill and experience.^® It obviously puts upon him the duty of a continuous inspection; since it is well known that machinery, safe when orig- inally constructed, may become unsafe through continuous wear and V. Lawson, 97 Tenn. 367; s. c. 37 S. between the degree of care -required W. Rep. 86. Compare Lee v. Knapp, from a carrier of passengers hori- 0^ Mo. App. 390, where the standard zontally, by means of railway cars adopted by the court is that of rear or stage coaches, and one who car- sonable or ordinary care. For a ries them vertically, by means of a doubtful statement and application passenger elevator." Mitchell v. of the above principle, where the Marker, 62 Fed. Rep. 139, 142. plaintiff's intestate, either through ^^Treadwell v. Whittier, 80 Cal. faintness or loss of consciousness, 574, 585; s. c. 5 L. R. A. 498; 6 Rail, fell through an open elevator well, & Corp. L. J. 505; 13 Am. St. Rep. the court ascribing the accident to 175; 22 Pac. Rep. 266. mere misadventure and not to the '" Marker v. Mitchell, 54 Fed. Rep. negligence of the defendant, — see 637, 638, per Taft, J. Bgan V. Berkshire Apartment Asso., " Lurton, J., in Mitchell v. Mar- 31 N. Y. St. Rep. 545; s. c. 10 N. Y. ker, 62 Fed. Rep. 139, 142; affirming Supp. 116. There is an editorial s. c. 54 Fed. Rep. 639. note on liability for injuries to pas- "° Mitchell v. Marker, 62 Fed. Rep. sengers on elevators, in 25 L. R. A. 139, 142; affirming s. c. 54 Fed. Rep. 33. 639. ■'■ Thus it was said by Lurton, J. : =» Marker v. Mitchell, 54 Fed. Rep. "We see no distinction in principle 637. 981 1 Thomp. Neg.] care of real property. tear.^^ It also puts upon him the duty of inspecting .it, when orig- inally constructed, by means of the best known tests which are reason- ably practicable; but if he makes such inspection, and in making it employs such tests, he will not be liable for damages caused by the breaking of the machine in consequence of a hidden flaw not thereby discoverable.^* But this duty of an original and continuing inspec- tion makes him liable for the consequences of any defect which could be thus discovered at the time of the original construction, or which might be subsequently discovered in the exercise of a reasonable con- tinuing inspection.^® It has been said that the person making-use of such a machine is "bound to use all reasonable means and efforts to furnish good and well constructed machinery, adapted to the purpose of its use, and all reasonable means and efforts to furnish or provide it of good material, and of the kind that is found to be the safest when applied to use ;" and "that the kind of machinery furnished and material furnished must be of that kind which has been found by others using it, or constructing such machinery, to be safest in prac- tical use. * * * Like common carriers of passengers, they must keep pace with science, art, and modern improvement, in supplying safe obtainable vehicles, machinery, and appliances for their use. They must adopt the most improved modes of construction and ma- chinery in known use in the business, and if they do not, and injury occur they will be held responsible."^" " Accordingly, it is well reasoned — erroneously the author conceives that the fact that machinery has — to passenger elevators, been used with safety for years and ^' Treadwell v. Whittier, 80 Cal. is not obviously dangerous, will not, 574; s. c. 5 L. R. A. 498; 6 Rail. & where the lives of others may de- Corp. L. J. 505; 13 Am. St. Rep. pend upon its safety, justify a pre- 175; 22 Pac. Rep. 266. sumption that it will continue safe, ^ Treadwell v. Whittier, 80 Cal. and that its use may be continued 574; s. c. 5 L. R. A. 498; 6 Rail. & without examining it to ascertain Corp. L. J. 505; 13 Am. St. Rep. if its safety may not have been im- 175; 22 Pac. Rep. 266. paired: Goodsell v. Taylor, 41 Minn. ™ Treadwell v. Whittier, 80 Cal. 207; s. c. 42 N. W. Rep. 873; 4 L. R. 574, 599; s. c. 5 L. R. A. 498; 6 Rail. A. 673. Contrary to this, and ob- & Corp. L. J. 505; 13 Am. St. Rep. viously unsound, is the judicial sug- 175; 22 Pac. Rep. 266. In Lee v. gestion that "as a generalrule, when Knapp, 55 Mo. App. 390, 406, the an appliance or machine or struc- court instructed the jury "that no ture, not obviously dangerous, has inference of negligence can Tse made been in daily use for years, and has against the defendant in regard to uniformly proved adequate, safe, said elevator, if you find from the and convenient, its use may be con- evidence that it is such as is ordi- tinued without the imputation of narily used in like purposes by rea- culpable imprudence or careless- sonably prudent persons engaged in ness:" Lafflin v. Buffalo &c. R. Co., the same kind of business." The 106 N. Y. 136; s. c. 12 N. B. Rep. court advised that this instruction 599. See also Bgan v. Berkshire be not used on another trial. "Mere Apartment Asso., 31 N. Y. St. Rep. usage by others," said Bond, J., "is 545; s. c. 10 N. Y. Supp. 116, where not the sole criterion. It is the duty this language is quoted and applied of owners of elevators to make them 982 INJURIES FROM ELEVATORS IN BUILDINGS. [2d Ed. § 1080. Duty to Give Warning of Defects. — Obviously, if the owner or occupier of a building containing a passenger elevator Icnows of a defect therein, it is his duty to give warning thereof to persons who, without such warning, are liable to attempt to ride on the elevator to their injury. ^^ ISTor will the owner of an elevator who knows of a de- fect therein, be relieved from liability for an injury to one whom he invites to ride on it and to whom he gives no notice of such defects, if the defects cause the elevator to fall, from the mere fact that the owner is also riding thereon.^^ § 1081. Injuries Received in Using Freight Elevators. — Generally speaking, the proprietor of a freight elevator is not required to exer- cise, either in construction or operation, that high degree of care, already referred to,^' which the law requires of those who own and reasonably safe for the uses to which they are to be put; and in so doing, they should exercise that degree of care employed by reason- ably prudent men in attaining the same end." It is observed that this sinks the standard of care to that of ordinary or reasonable care, which is not the rule of the other courts. The Massachusetts statute (Mass. Stat. 1882, ch. 208, amend- ing Pub. Stat. Mass., ch. 104, § 14), requiring the adoption of mechan- ical devices whereby elevator cars or cabs will be securely held in case of the breaking of the machinery, was construed as not making the proprietor an insurer that such de- vices will hold the elevator under all circumstances: Bourgo v. White, 159 Mass. 216; s. c. 34 N. E. Rep. 191. It is easy to agree with the view of the highest court of New York that the owner of passenger elevators is bound to exercise strict diligence to provide a safe and suit- able car, appliances, and other ma- chinery, but is not bound to guard against every possible contingency: McGrell v. Buffalo Office &c. Co., 153 N. Y. 265; s. c. 45 Cent. L. J. 133; 47 N. E. Rep. 305. Nor can one dis- sent from the view of the same court where it holds that the rule of diligence exacted by the law from the owner of a passenger elevator for the protection of passengers is less strict when applied to the sur- roundings and other structures forming part of the elevator plant, than when applied to the machinery and appliances by which the ele- vator is moved and controlled: Mc- Grell V. Buffalo Office Bldg. Co., 153 N. Y. 265; 45 Cent. L. J. 133; 47 N. E. Rep. 305; but always provided that the unsafe condition of such "surroundings and other structures" does not tend to jeopardize the safety of the passengers in the ele- vator. That a hotel keeper owes to a paying guest the duty of resorting to an unusual or extraordinary mode of inspection, where the necessity of such an in- spection is obvious to a person of ordinary prudence in view of pre- viously existing conditions, — was held by a judge of learning and ex- perience in Stott V. Churchill, 15 Misc. (N. Y.) 80; s. c. 36 N. Y. Supp. 476; 71 N. Y. St. Rep. 441. '■'■Ante, §§ 767, 852, 854, 929, 993. =''Hall V. Murdock, 114 Mich. 233; s. c. 4 Det. L. N. 554; 72 N. W. Rep. 150. It was held by the Supreme Court of New York that it was a question for the jury whether the conductor of an elevator was guilty of negligence in starting it at full speed without warning a child nine and a half years old, who was not accompanied by an adult, when the conductor knew that adult persons were liable to lose their equilibrium when the car was thus started; but the decision was reversed by the Court of Appeals of that State: Mc- Grell v. Buffalo Office Bldg. Co., 90 Hun (N. Y.) 30; s. c. 35 N. Y. Supp. 599; 70 N. Y. St. Rep. 372; s. c. rev'd 153 N. Y. 265. "^Ante, § 1078, 1079. 983 1 Tliomp. Neg.J cake of keal property. operate passenger elevators ; but the standard of ordinary or reasonable care satisfies the law. Speaking generally, he is under no duty to use the appliances securing safety in its operation which are used on ele- vators designed for carrying passengers.^* Although he may permit or invite persons to ride thereon, he does not, in the opinion of some enlightened courts, guarantee that it is equipped with the most ap- proved appliances in use on passenger elevators, and is not liable for an injury to such person caused by the fall, if he has provided such appliances as are in common use on freight elevators, and exercises reasonable care and skill in inspecting, repairing, and managing it.'° If a person enters and starts a freight elevator, in disregard of posted notices familiar to him warning persons from passing up or down the elevator, he can not recover damages for injuries caused by its fall, from the owner of the building, who has no notice that the elevator is used except for merchandise.^* § 1082. Evidence of Negligence in the Construction, Repair, and Operation of Passenger Elevators. — ^Eecurring to the corresponding rule in the case of carriers of passengers,^' it may be stated with eon- ^ Sievers v. Peters Box &c. Co., 151 Ind. 642; s. c. 8 Am. & Eng. Corp. Cas. (N. S.) 629; 50 N. E. Rep. 877; rehearing denied in 151 Ind. 662; 1 Repr. 420; 52 N. B. Rep. 399 (citing Hoelimann v. Moss En- graving Co., 4 Misc. 162; Morris v. Brown, 111 N. Y. 318; Hall v. Mur- dock, 114 Mich. 233; s. c. 72 N. W. Rep. 150; Kern v. De Castro &c. Sugar Ref. Co., 125 N. Y. 50). ='>Hall V. Murdock, 114 Mich. 233; s. c. 4 Det. L. N. 554; 72 N. W. Rep. 150. "McCarthy v. Foster, 156 Mass. 511; s. c. 31 N. E. Rep. 385. Owner of a building not liable where a boy- falls through an open space between the rear of a freight elevator and the wall, of which he has knowl- edge: Freeman v. Hunnewell, 163 Mass. 210; s. c. 39 N. E. Rep. 1012. Lessees of upper portion of build- ing not liable where a drayman falls down a freight elevator shaft, in consequence of the removal of a guard chain by some third person for whose act the lessees were not re- sponsible; nor because the statutory duty to provide trapdoors for the elevator opening below their prem- ises, had not been complied with by the person responsible therefor: Malloy V. New York Real Estate 984. Asso., 13 Misc. (N. Y.) 496; s. c. 34 N. Y. Supp. 679; rev'd in 156 N. Y. 205, on the ground that the court erred in holding the owners of the building liable for the act of the person who moved the elevator and left the opening unguarded. Circum- stances under which the proprietor of a hotel was not liable for an in- jury to a boy accustomed to deliver parcels to guests in the hotel, by means of an elevator which had a freight compartment beneath its passenger compartment, who got out to deliver some parcels and, return- ing, fell down the shaft, the door of which had been left open: Ballou V. Collamore, 160 Mass. 246; s. c. 35 N. E. Rep. 463. What is a suffi- cient protection of the shaft of a freight elevator, to comply with the New York Statute: Malloy v. New York Real Estate Asso., 156 N. Y. 205; s. c. 41 L. R. A. 487; 50 N. E. Rep. 853; rev'g s. c. 13 Misc. (N. Y.) 496. Duty to provide coverings for elevator shafts in manufactur- ing establishments, under New York statute, arises only after the inspect- or has declared it necessary: Boehm V. Mace, 28 Abb. N. Cas. (N. Y.) 138; s. c. 18 N. Y. Supp. 106. '' Explained in a subsequent vol- ume. INJURIES FROM ELEVATORS IN BUILDINGS. [2d Ed. fidence that the mere fact of the breaking of any portion of the ele- vator or of its attachments, whereby it falls, inflicting the injury complained of, is prima facie evidence of negligence in its construc- tion or reparation, under the rule of res ipsa loquitur^ which will take the question of the negligence of the defendant to the jury,^^ — unless the circumstances attending such breaking are of themselves sufficient to repel this presumption, which may happen where the breaking is produced by something proceeding from without, for which the pro- prietor of the elevator is in nowise responsible.^^ It is submitted, that on principle, the same presumption will arise where the falling of the elevator is shown to be due to some act or omission on the part of the servant of the defendant operating it, unmixed with negligence on the part of the plaintiff or person injured.*" A just limitation of this rule is that the thing which caused the injury must be shown to have been something under the control of the defendant or his servant, and within his power to prevent it from operating as it did, by the exer- cise of that degree of care which the law puts upon him. Thus, where the plaintiff, while lawfully in defendant's warehouse, fell into an elevator well which he knew of and could have avoided, his testimony that, when near the elevator, something fell and struck him and that he fell upon his back, without proof that anything was out of place, or other evidence of negligence, was not deemed sufficient to make de- fendant liable; since there was no evidence tending to the conclusion that what struck the plaintiff proceeded from the defendant, and since "it may have been the act of some one not in the employ of the de- fendant — possibly a mere trespasser on the premises."*^ § 1083. Further of Evidence of Negligence in Such Cases. — Out- side of these principles, the question of the negligence of the pro- =«Fairbank Canning Co. v. Innes, "Awte, § 15. 24 111. App. 33; s. c. affirmed on the '"Ante, § 15. facts, 124 111. 410; s. c. 15 West. Rep. " Huey v. Gahlenbeck, 121 Pa. St. 176; 17 N. E. Rep. 720; Ellis v. Wal- 238; s. c. 6 Am. St. Rep. 790; 22 W. dron, 19 R. I. 369; s. c. 33 Atl. Rep. N. C. 190; 15 Atl. Rep. 520. Com- 869. It is submitted that Davidson pare Lake Shore R. Co. v. Rosen- V. Davidson, 46 Minn. 117; s. c. 48 zweig, 113 Pa. St. 519, where, equal- N. W. Rep. 560, — proceeds in viola- ly without evidence, the plaintiff tion of this principle and was not was allowed to retain a verdict of well decided. There, in an action $48,750. In 6 Am. St. Rep. 792, by the employs operating the ele- there is a learned note on the pre- vator, against his employer for an sumption of negligence from the injury received by the falling of fact of the injury, the discussion the iron weights, by which it was being specially directed to cases operated, through the top of the ele- where there is no evidence show- vator car, it was held that the fact ing who was at fault. For cases of the fall of the weights was not illustrating the maxim res ipsa la- prima facie evidence of negligence; quitur, see ante, § 15, and other sec- and the reasoning of the court ig- tions there cited, nores the whole doctrine of res ipsa loquitur. 985 1 Thomp. Neg.J care of real property. prietor of the elevator, in its construction or reparation is properly submitted to the jury where there is evidence delivered by witnesses acquainted with the construction of the machine, to the effect that it was not reasonably safe for the purpose to which it was put when the accident happened.*^ Thus, it has been held, in an action by the op- erator of the elevator against his employer, that negligence on the part of the employer could not be inferred from the mere fact that the elevator suddenly descended to the bottom with a weight of only 500 pounds, causing injuries to the plaintiff, where it had just before raised three times as heavy a weight, and was properly constructed and had been in constant use for a long time without accident; since its descent may have been due to some hidden cause or some unknown defect, or to some lack of precaution on the part of the plaintiff, such as failing to set and lock the brake properly before using the ele- vator.*^ So, it has been reasoned that the conclusion that the elevator was out of repair can not be inferred from the mere fact that certain parts were found broken and out of place after its fall, where the facts and evidence are as consistent with the theory that they were caused by the falling, as that they previously existed.** § 1084. Facts to which Negligence has been Imputed. — Applying or misapplying the rule of the preceding paragraphs, it may be said generally that one who keeps and operates a passenger elevator is liable to a passenger exercising ordinary care, who is injured from the fall of the elevator, whether due to its negligent and faulty construc- tion or to the negligence of the persons operating it;*^ in permitting a child less than seven years old to sit so near the door of the elevator that, in turning around, his foot and leg are caught between the ele- vator and joists of the floor;** in leaving the door of an elevator well, opening into a dark hallway, open and unguarded while the elevator is at a different floor;*' in leaving unguarded an opening of an ele- *2 Strawbridge v. Bradford, 128 450; s. c. 52 N. Y. St. Rep. 749; 23 Pa. St. 200; s. c. 24 W. N. C. (Pa.) N. Y. Supp. 70. That a reasonable 536; 20 Pitts. L. J. (N. S.) 143; 47 opportunity must be given to a pas- Phil. Leg. Int. 203; 18 Atl. Rep. 346. senger, on bis entering an elevator, " Robinson v. Wright, 94 Mich, to obtain bis balance before a rapid 283; s. c. 53 N. W. Rep. 938. and sudden start of the elevator is ■" Robinson v. Wright, 94 Mich, made, — see Mitchell v. Marker, 25 283; s. c. 53 N. W. Rep. 938. That L. R. A. 33; s. c. 32 Ohio L. J. 189; it is not negligence in hoisting a 62 Fed. Rep. 139. heavy safe, to operate an elevator "' Hartford Deposit Co. v. Sollitt, without a conductor, by signals to 172 111. 222; s. c. 50 N. E. Rep. 178; the engineer, when it is necessary affg s. c. 70 111. App. 166. to use an unusually high pressure, " Kentucky Hotel Co. v. Camp, 17 and the manufacturers of the ele- Ky. L. Rep. 297; 30 S. W. Rep. 1010 vator and the engineer regard that (not off. rep.). mode of operation as the safest, — ■" People's Bank v. Morgolofski, 75 see Murphy v. Hays, 68 Hun (N. Y.) Md. 432; s. c. 23 Atl. Rep. 1027. 986 INJURIES FROM ELEVATORS IN BUILDINGS. [2d Ed. vator car into a recess in the wall sixteen inches deep, the elevator be- ing operated by a boy fifteen years old, and, in consequence of its un- usual lateral vibration, a passenger falls out into the recess and thence down the shaft;'"* for an elevator boy to disobey the instructions of a carpenter engaged in reconstructing the panelling, to stay up after he had made an ascent, and, instead of doing so, descending and striking the carpenter;^" for a proprietor of a store to leave unguarded and un- protected an elevator shaft located near the place where goods are on exhibition, or to protect it with a guard rail so weak as to give way when one falls against it without extraordinary force ;'"' for a person in charge of an elevator, after stopping the car and opening the door for a passenger to enter, to lose control of it in endeavoring to bring the floor of it to the level of the floor of the building, although, while attempting to do so, he requested the passenger "to wait a minute."^ ^ § 1085. Facts Not Regarded as Raising an Imputation of Negli- gence. — The following facts have not been regarded as furnishing evi- dence of negligence against the owner or occupier of a building using a passenger elevator: — Using bars to inclose the elevator shaft, with the result that a female passenger springs from the rear of the car while in motion and catches hold of the bars, and falls with her head between them and the floor of the elevator ; since such a result was not to be anticipated f"^ employing a boy twelve years old to run an elevator in which other children may be required to ride.^^ In an action by a passenger against a hotel proprietor for an injury caused by the fall of " Lee V. Publishers, George Knapp law, perform his entire duty to his & Co., 137 Mo. 385; s. c. 38 S. W. guest in having it inspected in the Rep. 1107. ordinary and usual manner of in- " Donovan v. Gay, 97 Mo. 440 ; s. specting elevators, — see Stott v. c. 11 S. W. Rep. 44. Churchill, 15 Misc. (N. Y.) 80; s. c. ™Rosenbaum v. ShofCner, 98 Tenn. 36 N. Y. Supp. 476; 71 N. Y. St. Rep. 624; s. c. 40 S. W. Rep. 1086. 441. "Obendorfer v. Pabst, 100 Wis. " McGrell v. Buffalo Office Bldg. 505; s. c. 76 N. W. Rep. 338. So, Co., 153 N. Y. 265; s. c. 45 Cent. L. where a passenger, while endeavor- J. 133; 47 N. E. Rep. 305. ing to enter the car, was injured by =' Smillie v. St. Bernard Dollar the sudden closing of the door, Store, 47 Mo. App. 402. Upon the which worked automatically by question whether the failure to pro- pneumatic pressure, opening when vide an elevator car with a door, the operator pressed a button on the where people are liable to lose their floor of the car, and closing with equilibrium when the car is started force when the pressure was re- at full speed, is negligence, is a moved, and not capable of be- question for the jury, — compare the ing stopped by again pressing the decision of the Supreme Court of button when it once started to New York with the decision of the close: Auld v. Manhattan L. Ins. Court of Appeals of that State, re- Co.; 34 App. Div. 491; s. c. 54 N. Y. versing it: McGrell v. Buffalo Office Supp. 222. That the proprietor of Bldg. Co., 90 Hun (N. Y.) 30; s. c. a hotel in which there is an ele- 70 N. Y. St. Rep. 372; 35 N. Y. Supp. vator which has been built for four- 599; s. c. rev'd 153 N. Y. 265. teen years, does not, as matter of 987 1 Thonip. Neg.] care of real property. a hydraulic elevator, where it was shown that the elevator had all known safety appliances, and that the defendant had no knowledge or reasonable cause to believe that there was any danger from air coming from the street pipe, — ^it was held that he would not be liable, even if he knew that the water was being shut off from the street main.°* § 1086. When Contributory Negligence Ascribed to the Person Injured. — In all of the following cases it was held that the plaintiff was precluded from recovering damages for an injury received by him- self or by the deceased person through defects in the premises of the de- fendant, on the ground of the contributory negligence of the plaintiff or the deceased; though in some of the eases the conclusion is put upon the ground that the person injured, by coming upon the prem- ises as a trespasser or bare licensee, accepted the risk of the premises as he found them, under a doctrine already considered. ^'^ Contribu- tory negligence has been held a defense: — Where a boy fifteen years of age, in the habit of delivering goods to tenants in a hotel, left the door of the elevator open, knowing that the elevator boy could not shut it, and, on returning stepped through the open door into the well with- out looking to see whether the elevator was there ;^* where an errand boy, twelve years of age, of more than ordinary intelligence, employed on the fourth floor of a factory building, on being sent down on an errand, not relating to freight, leaned upon a chain hanging across the entrance to the shaft of the freight elevator, to look for the ele- vator, upon which he had no right to ride, and was injured by the giving away of the chain ;'*^ where one who had ridden upon an ele- vator put his head into the shaft through an opening in the upper part of the door, and was killed by the elevator in its descent;^* where the plaintiff, wandering about the defendant's factory building where, — as the court thought — he had no business to be, fell down an open and unguarded elevator shaft f^ where a person took an elevator which he knew was not intended for passengers, and, on leaving it, closed the door leading from the elevator well and then returned to the door in a great hurry and, hearing some one speak to him, turned quickly around without looking and stepped into the well.^° "Shattuck V. Rand, 142 Mass. 83; "'Mau v. Morse, 3 Colo. App. 359; s. c. 2 N. B. Rep. 378. s. c. 33 Pac. Rep. 283. '•'-Ante, §§ 184, 185, 1019, 1020. ""Bedell v. Berkey, 76 Mich. 435; '« Ballou V. Callamore, 160 Mass. s. c. 43 N. W. Rep. 308. For a some- 246; s. c. 35 N. E. Rep. 463. what similar case, where the same " Knox V. Hall Steam Power Co., conclusion was reached, see Hutch- 69 Hun (N. Y.) 231; s. c. 53 N. Y. ins v. Priestly Exp. &c. Co., 61 Mich. St. Rep. 39; 30 Abb. N. Cas. 152; 252; s. c. 28 N. W. Rep. 85. 23 N. Y. Supp. 490. "" Patterson v. Hemenway, 148 Mass. 94; s. c. 19 N. E. Rep. 15. INJURIES FROM ELEVATORS IN BUILDINGS. [2d Ed. § 1087. Circumstances under whicli Contributory Negligence As- cribed as Matter of Law. — It is contributory negligence, as matter of law, to put one's head into an elevator well for the purpose of shout- ing for the car to come down, or of seeing whether or not it is eom.ing, or who is in it;*^ to take a freight elevator without invitation, where a passenger elevator is, to the knowledge of the person injured, pro- vided;®^ especially where the freight elevator is marked "danger- ous ;"°^ to pass through the shaft of a freight elevator, in order to get from one compartment of a cellar to another, where a safe way has been provided ;°* for a plasterer, invited to make an inspection for the purpose of submitting estimates for a contract, to thrust his head un- necessarily through a window into an elevator shaft ;°° to walk back- ward into an elevator shaft without looking to see whether the ele- vator is there or not f^ for a boy eight years old, who has been warned and who knows better, to put his head over the gate of an elevator;*'' for an employe, instead of waiting for an elevator in regular use, or going by the stairs to the floor of the building where he is employed, to enter a defective elevator, the use of which is disapproved by the owner of the building, to go to his destination, and soon after to re-enter it, where he was injured in consequence of its being out of re- pair;'* for one to hurry towards an elevator after it has started and to call upon the conductor to "hold on" while the door is closing, and to grasp the door, pushing it back, and to attempt to get into it, but to succeed in getting his foot caught between the landing and the top of the elevator. ®° " Ramsdell v. Jordan, 168 Mass. '" Green v. Young Men's C. A., 65 505; s. c. 47 N. B. Rep. 244; Mau v. 111. App. 459. Nor where one enters Morse, 3 Colo. App. 359; Murphy v. an elevator in the absence of the Webster, 151 Mass. 121; Gulchard v. person employed to operate It, and. New, 9 App. Dlv. 485; Peake v. without permission from the owner Buell, 90 Wis. 508; Knapp v. Jones, of the building, express or implied, 50 Neb. 490; s. c. 70 N. W. Rep. 19. attempts to operate it himself, and "' Amerine v. Porteous, 105 Mich, is killed in consequence of a defect 347; 2 Det. L. N. 114; 63 N. W. Rep. which renders its operation hazard- 300. ous: Dashiell v. Washington Market "'Bennett v. Butterfield, 112 Mich. Co., 25 Wash. L. Rep. 123; s. c. 10 96; s. c. 3 Det. L. N. 865; s. c. 29 App. D. C. 81. Other cases where Chicago Leg. News 256; 70 N. W. the contributory negligence of the Rep. 410. person killed or injured was held to °* Burk V. Edison General Electric prevent a recovery of damages for Co., 89 Hun 49'8; s. c. 35 N. Y. Supp. the death or injury: Freeman v. 313; 69 N. Y. St. Rep. 757. Glens Falls Paper Mill Co., 70 Hun "» Peake .V. Buell, 90 Wis. 508; s. c. (N. Y.) 530; s. c. 53 N. Y. St. Rep. 63 N. W. Rep. 1053. 786; 24 N. Y. Supp. 403; Marnin v. »» Smith V. Van Sciver, 58 N. J. Kitson Mach. Co., 159 Mass. 156; L. 190; s. c. 33 Atl. Rep. 390. . s. c. 34 N. E. Rep. 89; Hoehmann v. "Guichard v. New, 9 App. t)iv. Moss Engraving Co., 4 Misc. (N. Y.) 485; s. c. 41 N. Y. Supp. 456. 160; s. c. 53 N. Y. St. Rep. 195; 23 »» Hansen v. State Bank Build. Co., N. Y. Supp. 787. 100 Iowa 672; s. c. 69 N. "W. Rep. 1020. 989 1 Thomp. Neg.J cake of real property. § 1088. Facts to which Contributory Negligence has Not been As- cribed. — On the other hand, an employe in a warehouse was not, as matter of law, deemed guilty of contributory negligence in standing on a' narrow place between a wheel-hole and an elevator shaft while pulling a cable to send the elevator down, although there was another place which was safe and convenient for the purpose, where he was ignorant of the safest way to handle the elevator, and had received no instructions in regard thereto, other than that the cable used by him was the one that controlled the movements of the elevator.'"' Nor was contributory negligence imputed, as matter of law, to one who met his death in consequence of leaning against a bar placed as a guard for the shaft of a freight elevator, where there was nothing to indicate its insecurity, and the bar fell by the giving way of the post supporting it when touched by another person in passing it f^ nor where a messen- ger boy, who entered an elevator, told the conductor whom he desired to see, and placed himself, after the elevator stopped, in a position to leave it as soon as the shaft was open, no other person being in the ele- vator, and, while in the act of leaving it, the conductor started it without giving him any warning, whereby his foot was caught between the floor of the elevator and the top of the door of the elevator shaft ;''^ nor, in general, because a person using an elevator under an express or implied permission, acts on the assumption that it will be operated with care and caution, so that his descent will be safe.''' § 1089. Circumstances under which Contributory Negligence was for the Jury. — In the following cases the question of the contributory negligence of the person injured was for the jury: — Where one was injured by falling into an elevator well in the day-time, the appear- ances being such as to create the impression that the floor over it was closed, which was not the fact;^* where, the elevator of a building having stopped running, a woman was hurt in descending the stairs, which were insufficiently lighted, she having failed to call for assist- ance;''^ where a person stepped into an elevator well through an open ™Tvedt V. Wheeler, 70 Minn. 161; ercise that degree of care which or- s. c. 72 N. W. Rep. 1062. dinarily careful and prudent chil- ." Weiss V. Jenkins, 39 App. Div. dren of his age, prudence, and dis- 567; s. c. 57 N. Y. Supp. 708. cretion are accustomed to observe " Mitchell V. Keane, 87 Hun (N. under similar circumstances, — see Y.) 266; s. c. 33 N. Y. Supp. 1045; Kentucky Hotel Co. v. Camp, 17 Ky. 67 N. Y. St. Rep. 731. L. Rep. 297; s. c. 30 S. W. Rep. 1010 "Miller v. Brewster, 53 N. Y. (not off. rep.). Supp. 1; s. c. 32 App. Div. 559. " McRickard v. Flint, 114 N. Y. That a child less than seven years 222; s. c. 21 N. E. Rep. 153; 23 N. of age does not contribute to an in- Y. St. Rep. 100. jury received by him while riding " Marwedel v. Cook, 154 Mass. on an elevator, unless he fails to ex- 235; s. c. 28 N. E. Rep. 140. 990 INJURIES FROM ELEVATORS IN BUILDINGS. [2d Ed. door in a hallway so dark that he could not see whether or not the car was there, under the belief that it was there from the door being open and the bar removed, such door being but one or two steps from that by which he entered the hallway;'" where a mail carrier, coming on the premises to deliver a letter to a tenant, fell into an elevator well in a dark place, by reason of its having been left unguarded and un- protected, contrary to the usual custom, the circumstances being such as to lead him to suppose that the elevator was there.''' § 1090. Instructions to Juries in these Cases. — The following in- struction, as applicable to the degree of care required of the propri- etors of passenger elevators, has met judicial approval: "The defend- ants owed it as a duty to the persons using the elevator in their store, either as customers or by their invitation or request, to use all reason- able means and efforts to furnish good and well constructed machin- ery adapted to the purposes of its use, of good material, and of the kind which is found to be the safest when applied to use; and while they were not required to seek and apply every new invention, they must adopt such as are found by experience to combine the greatest safety with practical use." In approving this instruction, the court said: "The instruction, as we understand it, is but a fair deduction from the rule that the defendants must use the utmost care and dili- gence to carry safely those who ride in their elevator, as far as human care and foresight will go ; and while they do not engage for absolute safety, they do bind themselves and warrant that they will use the utmost care and diligence of very cautious persons, as far as human care and foresight will go, to provide such means of carriage as are above pointed out."'* Another court has held that, in such an action, an instruction that the owner of the building, in running an elevator for the use of his tenants and their visitors, is bound to use reasonable care under the circumstances to preserve their lives and limbs, and that reasonable care, in view of the fact that passengers put them- selves completely in his control and that of his employes while on the elevator, requires a high degree of care, the highest degree of care con- sistent with 'the possibility of injury, — is not misleading; but the ex- ™ People's Bank v. Morgolofski, 75 negligence in falling into an un- Md. 432; s. c. 23 Atl. Rep. 1027. guarded hatchway may go in miti- " Gordon v. Cummings, 152 Mass. gatton of damages in Tennessee, see 513; s. c. 9 L. R. A. 640; 25 N. E. Dush v. Fitzhugh, 2 Lea (Tenn.) Rep. 978. For a somewliat similar 307. case, where the same conclusion was " Treadwell v. Whittier, 80 Cal. reached, see Tousey v. Roberts, 114 574, 599; s. c. 5 L. R. A. 498; 6 Rail. N. y. 312; s. c. 23 N. Y. St. Rep. 223; & Corp. L. J. 505; 13 Am. St. Rep. 21 N. B. Rep. 399. That a plaintiff's 175, 195; 22 Pac. Rep. 266. 991 1 Thomp. Neg.] care of real property. pression ''consistent with the possibility of injury," is sufficiently ex- plained by the context.''* § 1091. Notice of Defects in Elevators. — A lessor who covenants to keep an elevator in repair and in perfect condition for the lessee's use, and who retains general control over it, is responsible to the lessee for its defective condition, without any notice to the lessor of such defects.*" The same court has held that notice is not imputed to a lessee of the dangerous condition of an elevator, which results in an accident, merely because a manager of his business in the leased prem- ises knows that a bolt is missing from the arm of the elevator case, which would allow the elevator to creep about twelve inches above the floor, where this defect would not have caused the accident without other defects of which the manager had no notice.*^ § 1092. Injuries Ascribed to the Negligence of a Fellow-Servant. — Under a well-known rule, considered in a subsequent volume, there can be no recovery against the owner of a building where one is killed in moving a heavy safe on the elevator in the building, not by reason of any defect in the elevator, but by reason of the negligence of his co- employes in operating it.*^ So, where a boy ten years of age was em- ployed in a retail store, and was hence a fellow-servant of the boy operating the elevator, and was requested by the elevator-boy to open the elevator gate, which could be safely opened by a child, and in so doing slipped and was hurt, the employer was not liable.*^ § 1093. Injuries from Elevators to the Servants of Contractors. — One who was engaged to make repairs in a penitentiary fell down the elevator. It was held that he could not maintain an action against one who had nO' control over the elevator, but who merely had a con- " Marker v. Mitchell, 54 Fed. Rep. structlon given at the request of the 637; s. c. affirmed 62 Fed. Rep. 139; plaintiff, that he was not bound to s. c. 25 L. R. A. 33; 32 Ohio L. J. assume negligence on the part of 189. Not error to refuse an instruc- the defendant, etc., which was held tion that unless the defect was erroneous as invading the province known to the defendant the plaint- of the jury, — see National Syrup Co. iff can not recover: Bier v. Standard v. Carlson, 42 111. App. 178. Man. Co., 130 Pa. St. 446; s. c. 18 '"Olson v. Schultz, 67 Minn. 494 Atl. Rep. 637. For an instruction 70 N. W. Rep. 779; 36 L. R. A. 790. ignoring the element that the in- '' Olson v. Schultz, 67 Minn. 494 jured party was free from negli- 70 N. W. Rep. 779; 36 L. R. A. 790. gence, and hence erroneous, in a '^ Murphy v. Hayes, 145 N. Y. 370 jurisdiction where contributory neg- s. c. 64 N. Y. St. Rep. 824; 40 N. E. ligence must be negatived by the Rep. 6. plaintiff, — see Riordan v. Ocean '^ Smillie v. St. Bernard Dollar Steamship Co., 32 N. Y. St. Rep. 328 ; Store, 47 Mo. App. 402. s. c. 11 N. Y. Supp. 56. For an in- 992 INJURIES FROM ELEVATORS IN BUILDINGS. [2d Ed. tract with the prison authorities for the services of the convicts in the penitentiary shops.** § 1094. Failing to Comply with Statutes and Ordinances. — Stat- utes have been enacted in many States prescribing certain precautions to be used with respect to passenger and freight elevators in buildings, to the end of protecting the public from injury. Except in New York/^ and possibly in one or two other States, the violation of such a statute, entailing injury as a direct consequence, is negligence per se/^ and the question whether the proprietor or his servants exer- cised due care becomes immaterial. Damages have been awarded for the violation of a statute requiring all elevator wells and wheel-holes to be protected, and the duty is of such nature that the liability wili fall upon the landlord where the dangerous wheel-holes are left ex- posed in violation of the statute at the time when the premises are let.*^ So, the duty of complying with the statute of New York re- quiring the use of a trap-door to close the opening of an elevator at each floor of the building, falls upon the owner, and not upon the occupants separately or collectively, where the building is let to difEer- ent tenants.** So, in Illinois, the failure to comply with a provision of a city ordinance respecting the doors of elevator wells renders the owner liable for an injury thereby entailed upon a child which is rightfully at play at the place of the injury. *° But the fact that a railing protecting an elevator is insufficient to comply with a statute, will not render the owner liable to a person who falls into the shaft, not because the railing is insufficient, but because it has been left out of place, and the shaft left unguarded by the negligence of a third person using the elevator: the failure to comply with the statutory duty not being the proximate cause of the injury.'" "Cunningham v. Bay State &c. ^ Ante, § 11. Leather Co., 93 N. Y. 481. Where "Ante, § 10, and other sections the owner of a building, in course there cited. of construction, has furnished a " Tvedt v. Wheeler, 70 Minn. 161 ; suitable and safe elevator for carry- s. c. 72 N. W. Rep. 1062 (citing Par- ing materials, he does not "become ker v. Barnard, 135 Mass. 116; s. c. liable to an employ^ of a contractor 46 Am. Rep. 450). engaged in laying floors, for an in- ** Malloy v. New York Real Estate jury received while on another ele- Asso., 13 Misc. 496; 34 N. Y. Supp. vator, not yet finished or accepted 679; s. c. rev'd on other grounds, 156 by the owner, of which the em.ployS N. Y. 205. of the owner, in charge of tte for- *" Siddall v. Jansen, 39 L. R. A. mer elevator, without the knowl- 112; 168 111. 43; 48 N. B. Rep. 191; edge, consent, or authority of the rev'g 67 111. App. 102. owner, who is a subtenant, but at "■ Malloy v. New York Real Estate the request of the contractor con- Asso., 156 N. Y. 205; s. c. 50 N. E. structing the elevators, is operating Rep. 853; 41 L. B. A. 487; rev'g 13 temporarily: Ferris v. Aldrich, 47 Misc. 496. N. Y. St. Rep. 40; s. c. 19 N. Y. Supp. 353. VOL. 1 THOMP. NEG.— 63 993 1 Thomp. Neg.] care of real property. § 1095. Constructor of Elevator not liable to Customers of his Vendee, or to Third Persons, for Defects Therein. — It may well be doubted whether an elevator in a building, used for the carriage of passengers, is not a machine so inherently dangerous that, unless prop- erly constructed, its constructor becomes liable to any one injured in consequence of a dangerous defect, on the footing of being the author of a public nuisance. On the contrary, it has been held that a freight elevator is not per se such a dangerous machine as to render an ele- vator construction company liable to a third person for an injury sus- tained through one that is defectively constructed, on the ground that it is imminently dangerous to the lives and persons of others;'^ and by the analogy of the rule which exonerates independent contractor? from liability to third persons for defects in their work not amount- ing to a nuisance, after they have turned it over to their principal,"' the courts generally hold that the duty which the law imposes upon one who constructs a passenger elevator is a duty to the proprietof only, and not to his customers, or to a third person who may use it,"' there being no privity of contract between the contractor and suet person."^ On similar lines of reasoning, it has been held that a manu- facturing company which sells an elevator, under an agreement with the purchaser that it is not to be accepted and paid for until it is ip running order, and that, until then, it is to be operated by the pur- chaser under the supervision of the seller, — does not become liable for an injury to an employe of the purchaser, caused by a defect in the elevator before its acceptance, where such employe, at the time ot receiving the injury, was outside of the elevator and had nothing to do with its operation. The reasoning of the court, in substance, was that there was no privity of contract between the plaintifE and the ele- vator company, and consequently that the company owed him no special duty ; and further, that there was no implied invitation by the company to the plaintiff to be where he was. There was no claim that the company acted recklessly or in bad faith, or that it had actual no- tice of the defect; hence it was not liable on the ground that its act of placing the elevator in the building was an act, the natural, prob- able consequence of which would be imminently dangerous to the lives of others."^ " Ziemann v. Kieckhefer Man. Co., v. Ward, 100 U. S. 195 ; s. c. 25 L. 90 "Wis. 497; s. c. 41 Cent. L. J. 213; ed. 621; Winterbottom v. Wright, 10 63 N. W. Rep. 1021. Mees. & W. 115; Losee v. Clute, 51 "Ante, § 688. N. Y. 494; s. c. 10 Am. Rep. 638. "'Field V. Frencli, 80 111. App. 78. "Ante, § 686. See, to tlie governing principle, Cur- °° Ziemann v. Kieckhofer Elevator tin V. Somerset, 140 Pa. St. 76; s. c. 12 Man. Co., 90 Wis. 497; 41 Cent. L. L. R. A. 322; National Sav. Bank J. 213; 63 N. W. Rep. 1021. 994 INJURIES FROM ELEVATORS IN BUILDINGS. [2d Ed. § 1096. Liability as Between Lessor and Lessee for Defects in an Elevator.^ — Although this subject has been incidentally considered, here and there, in this chapter, yet it probably belongs to the next chapter, as it depends upon principles there discussed. It has been held that a lessor who is not in possession or control of an elevator well in a leased building which the tenant has covenanted to keep in repair, is not liable for the death of a person who falls therein, while delivering goods to the tenant on the latter's invitation, although there is a dangerous defect consisting of a large opening between the elevator and the outer wall.'* § 1097. Liability for Injuries from Dumb-Waiters. — The owner of a building occupied as flats is liable for the death of a boy fifteen years old engaged in delivering goods to the tenants by means of a dumb- waiter constructed in the building, by the fall of the dumb-waiter through the breaking of the rope which supported it, where the rope was so worn that a casual inspection would have revealed its insuffi- ciency, and the boy was free from contributory negligence.'^ Kor was the boy deemed guilty of contributory negligence by reason of the fact that he stood beneath the dumb-waiter while operating it."' a This section is cited in §§ 1156, L. R. A. 716; 3 Am. Neg. Rep. 95; 1165. 37 Atl. Rep. 702. »" Henson v. Beckwith, 20 R. I. »' Krey v. Sclilussner, 42 N. Y. St. 165; s. c. 2 Chic. L. J. Wkly. 399; 38 Rep. 917; s. c. 16 N. Y. Supp. 695. "Krey v. Schlussner, supra. 995 1 Thomp. Neg.] care of keal property. CHAPTER XXXVII. LIABILITY FOE EEMOVING THE SUPPORT OF LAKD. Section 1101. Rule of the common law touching the right of the owner of land to its lateral support. 1102. Nature of the right to the lateral support of land in its natural state. 1103. Right to lateral support with superimposed structures ac- quired by prescription. 1104. Right to lateral support with superimposed structures ac- quired on theory of implied grant. 1105. Relative rights of owner of artificially weighted soil, and adjoining owner. 1106. What if the soil would have sunk without the superim- posed structures. 1107. Rights may be varied by agreements between the par- ties. 1108. Right of excavating owner to shore up and charge adjoin- ing owner with cost. 1109. Negligent exercise of the right to excavate in one's own soil'. 1110. Degree of care demanded of the land-owner. 1111. Duty to excavate section by section. Section 1112. Negligence in shoring up. 1113. Questions for the jury in these cases. 1114. Damages recovered for the unlawful deprivation of such support. 1115. What if the work is done by an independent contractor. 1116. Liability of municipal and private corporations and pub- lic commissioners for remov- ing lateral support of land. 1117. Public commissioners so lia- ble. 1118. Private corporations so liable. 1119. Right to lateral support of land under Civil Code of Cal- ifornia, aflarming common law. 1120. Under statutes of New York and Ohio. 1121. Contributory negligence of the injured land-owner. 1122. Remedy by injunction. 1123. Statute of limitations runs only from accrual of dam- ages. 1124. Liability for removing the sub- jacent support of land. 1125. Liability for removing party- wall. § 1101. Eule of the Common Law Touching the Right of the Owner of Land to its Lateral Support. — ^By the principles of the commou law the owner of land has a right to its lateral support from the soil of his neighbor so far as may be necessary to preserve the integrity of his soil in it? natural state ;^ but if his soil is weighted ^Gilmore v. Driscoll, 122 Mass. 199; s. c. 23 Am. Rep. 312; 1 Thomp. 996 Neg., 1st ed., p. 254; Obert v. Dunn, 140 Mo. 476; s. c. 41 S. W. Rep. 901; KEMOVIXG SUPPORT OF LAND. [2d Ed. with t liijings, fences, trees, or other things superimposed upon it, he has no right to such lateral support from the soil of his neighbor as will enable his own soil to sustain such increased weight.^ There- fore, an owner of land who digs away the soil on his own land is not Hunt V. Peake, Johns. (Eng. Ch.) 705; Quincy v. Jones, 76 111. 231; s. c. 20 Am. Rep. 243; McGuire v. Grant, 25 N. J. L. 357; s. e. 67 Am. Dec. 49; Richardson v. Vermont &c. R. Co., 25 Vt. 465; Farrand v. Marshall, 19 Barb. (N. Y.) 380; s. c. 21 Barb. (N. Y.) 409; Humphries v. Brogden, 12 Ad. & El. (N. S.) 739; Stevenson V. "Wallace, 27 Gratt. (Va.) 77; Pey- ton V. Governors of St. Thomas's Hospital, 4 Man. & R. 625 ; s. c. sm6 nom. Peyton v. London, 3 Car. & P. 363; 9 Barn. & Cress. 725; Shafer v. Wil- son, 44 Md. 268, 279; Lasala v. Hol- brook, 4 Paige (N. Y.) 169; s. c. 25 Am. Deo. 524; Mamer v. Lussem, 65 111. 484; Foley v. Wyeth, 2 Allen (Mass.) 131; s. c. 79 Am. Dec. 771; Busby V. Holthaus, 46 Mo. 161. Con- tra, Radcliff V. Brooklyn, 4 N. Y. 202. The language of Woodworth, J., in Panton v. Holland, 17 Johns. (N. Y.) 92, goes to the extent of holding that a man may dig as he pleases on his own soil, being answerable only for a negligent exercise of the right, which may mean much or little, according to the notions of juries. The right to have one's land supported in its natural condition was not conceded; but this question did not arise, for It was a case where one lot owner in New York City had undermined the house of another, in building. In some States, the subject, so far as it relates to excavating on lots adjacent to buildings in cities, is regulated by statute. See N. Y. Stat. 1855, chap. 6; Dorrity v. Rapp, 11 Hun (N. Y.) 374 (reversed 72 N. Y. 307; s. c. 4 Abb. N. C. (N. Y.) 292). The same doctrine in Eng- land governs the rights of the own- ers of adjacent mines. The owner of one coal mine may, for the pur- pose of obtaining coal, and so work- ing &is mine in a manner most ad- vantageous to himself, cut away a partition of coal between his own mine and a body of subterranean water; and if his water thereby gets into his neighbor's mine, which has connection with his, he will not be answerable in damages: Smith v. Kenrick, 7 C. B. 515; s. c. 13 Jur. 362; 18 L. J. (0. P.) 172. See Fletcher v. Rylands, L. R. 3 H. L. 330; s. c. 1 Thomp. Neg., 1st ed., pp. 38, 40, where this case is discussed. As to the manner of pleading an in- jury to a right of this nature, see Jeffries v. Williams, 5 Exch. 792; s. c. 20 L. J. (Exch.) 14; Bibby v. Carter, 4 Hurl. & N. 153; Brown v. Windsor, 1 Cromp. & J. 20; Trower V. Chadwick, 3 Bing. N. C. 334; Hil- ton V. Whitehead, 12 Q. B. 734. As to the defensive pleadings in such a suit, see Trower v. Chadwick, 3 Bing. N. C. 334. See also Slingsby v. Bar- nard, 1 Roll. Abr. 430 ; Smith v. Mar- tin, 2 Saund. 394; Great Western R. Co. V. Bennett, L. R. 2 H. L. 27. ^Panton v. Holland, 17 Johns. (N. Y.) 92; s. c. 1 Thomp. Neg., 1st ed., p. 249; 8 Am. Dec. 369; Quincy V. Jones, 76 111. 231; Thurston V. Hancock, 12 Mass. 220; La- sala V. Holbrook, 4 Paige (N. Y.) 169; O'Connor v. Pittsburgh, 18 Pa. St. 187; Cincinnati v. Penny, 21 Ohio St. 499; McGuire v. Grant, 25 N. J. L. 356; Wyatt v. Harrison, 3 Barn. & Adol. 871; Char less v. Ran- kin, 22 Mo. 566; Stevenson v. Wal- lace, 27 Gratt. (Va.) 77; Dixon v. Wilkinson, 2 McArthur (D. C.) 425; Peyton v. Mayor and Commonalty of London, 9 Barn. & Cress. 725; Part- ridge V. Scott, 3 Mee. & W. 220; Gayford v. Nicholls, 9 Exch. 702; Gilmore v. Driscoll, 122 Mass. 199; s. c. 23 Am. Rep. 312; Mamer V. Lussem, 65 111. 484; Busby v. Holthaus, 46 Mo. 161; Bads v. Gains, 58 Mo. App. 586; Walters v. Hamil- ton, 75 Mo. App. 237; s. c. 1 Mo. App. Rep. 344. See also Marvin v. Brews- ter Iron Min. Co., 55 N. Y. 556; s. c. 14 Am. Rep. 322; Lasala v. Hol- brook, 4 Paige (N. Y.) 169; s. c. 15 Am. Dec. 524; Louisville&c. R. Co. V. Bonhayo, 94 Ky. 67; Covington v. Gaylor, 19 Ky. L. Rep. 145; Moeller- ing V. Evans, 121 Ind. 195; s. c. 6 L. R. A. 449; Cabot v. Kingman, 166 Mass. 403; s. c. 33 L. R. A. 45; Obert V. Dunn, 140 Mo. 476; s. c. 41 S. W. Rep. 901 ; Gildersleeve v. Hammond, 109 Mich. 431; s. c. 33 L. R. A. 46; 3 Det. L. N. 117; 43 Cent. L. J. 97; 67 N. W. Rep. 519. 997 1 Thomp. Keg. J care of real property. liable for injuries to the land of an adjoining owner or to a super- structure thereon from the settling of the land, where the pressure of the superstructure caused the land to fall.^ § 1102. Nature of the Right to the Lateral Support of land in its Natural State. — This right to the lateral support of land in its nat- ural state, unweighted with trees, buildings, or other structures, is an absolute right, and the right to recover damages for a deprivation of it does not at all depend upon the inquiry whether such deprivation was the result of negligence.* This right is sometimes treated as an easement,^ though generally it is viewed as a natural right, and the deprivation of such support, as a nuisance." Where, however, the soil is artificially weighted, this right is not an absolute, but a qualified right; but even in those cases where it does not exist at all, a person proposing to excavate his own soil in such a manner that it will prob- ably damage that of his neighbor, owes certain duties to such neigh- bor, the neglect of which will make him liable to pay damages. It is in this aspect that we propose chiefly to consider the question, § 1103. Right to Lateral Support with Superimposed Structures Acquired by Prescription.* — He may, however, acquire, by prescrip- tion for the period of twenty years, a right to the lateral support of his land, together with the superimposed buildings. In such case, a grant of the right of support as an easement is presumed.^ ^ Hemsworth v. Gushing, 115 Mich. Brown v. Robins, 4 Hurl. & N. 186; 92; s. c. 4 Det. L. N. 784; 72 N. W. Farrand v. Marshall, 19 Barb. (N. Rep. 1108. An owner of real prop- Y.) 380; Stevenson v. Wallace, 27 erty is entitled to the ZoieraZ SMpport Gratt. (Va.) 77; Backhouse v. Bo- of an adjacent highway for his nomi, 9 H. L. Gas. 503; Baltimore building as against a wrong-doer: &c. R. Go. v. Reaney, 42 Md. 117, 135; Finegan v. Eokerson, 26 Misc. 574; Guest v. Reynolds, 68 111.478; Cooley s. c. 57 N. Y. Supp. 605. That a ven- on Torts, 594, 595; Wood on Nuis., dee in possession of real property §§ 173, 213. The nature and origin is entitled to a restoration by his of this right are discussed in a adjoining owners of the soil of learned article in 1 Am. L. Rev. 1; streets adjacent to his premises, but this article is an argument for a which has fallen into an excavation particular view of the case. It ap- made by them, and had been car- pears to have been worked over from ried away to within a few feet of his a brief. building,— see Finegan v. Eckerson, a This section is cited in §§ 1112, supra. 1121. ^ Schultz V. Bower, 57 Minn. 493 ; ' Stansell v. Jollard, 1 Selw. N. s. c. 59 N. W. Rep. 631. See also P. (11th Eng. ed.) 457; Hide v. Stimmell v. Brown, 7 Houst. (Del.) Thornborough, 2 Gar. & Kir. 250; 219; Bohrer v. Dienhart Harness Story v. Odin, 12 Mass. 157; Easala Co., 19 Ind. App. 489; s. c. 49 N. E. v. Holbrook, 4 Paige (N. Y.) Rep. 296; aff'g on rehearing 45 N. 169; s. c. 25 Am. Dec. 524; E. Rep. 668. Stevenson v. Wallace, 27 Gratt. "Gale on Ease. 365; Washb. on (Va.) 77, 88; Quincy v. Jones, Ease. 437. 76 111. 231, 241; Wyatt v. Har- " See Lord Wensleydale, In Row- rison, 3 Barn. & Adol. 871 ; Part- botham v. Wilson, 8 H. L. Gas. 348; ridge v. Scott, 3 Mees. & W. 220; 998 KEMOVING SUPPORT OF LAND. [2d Ed. § 1104, Right to Lateral Support, with Superimposed Structures, Acc[uired on Theory of Implied Grant.* — He may also acquire such a right upon the theory of an implied covenant, or grant of an ease- ment, — as, when the adjoining parcels of A. and B. were formerly the property of a common owner. Here each owes to the other the duty of supporting, not merely his soil, but his buildings standing thereon.* A person may also recover damages for an injury to his soil by remov- ing the lateral support of it, although its subsidence was caused by the weight of adjacent buildings belonging to another proprietor.* On the other hand, he may be estopped to claim the right by the cov- enants of his own deed, — as, when a person conveyed land to a rail- way company "for material * * * to the uses and purposes of said railroad, and for no other or different purpose," and the removal of the material deprived other land of its lateral support, so that it fell down some years afterwards.^" § 1105. Relative Rights of Owner of Artificially Weighted Soil, and Adjoining Owner. — Balancing again the relative right of the land- owner whose soil is thus artificially weighted, and that of the adjoin- ing land-owner who, for his own purposes, proposes to make an exca- vation in his own soil, it is clear that the latter has the lawful right, after giving notice to the former of his intention, to the end that he may take measures by shoring up or otherwise to prevent the fall of his building, — to extend an excavation on his own lot to the division Brown v. Windsor, 1 Cromp. & J. 20. "Foley v. Wyetli, 2 Allen (Mass.) If A. build a house on his own land, 131; s. c. 79 Am. Dec. 771. which had previously heen excavat- '° Ludlow v. Hudson River R. Co., ed for mining purposes, he does not 4 Hun (N. Y.) 239. Contrary to the thereby acquire a right of support text, there are decisions to the effect from the adjoining land of B., at that one land-owner can not Vy any least until twenty years have elapsed mere lapse of time, acquire a pre- since the house first stood on ex- scriptive right to the support of his cavated land; so that if B., within land weighted by a building thereon, such period, works mines on his own so as to cast upon the coterminous land, whereby the house of A. sinks, owner the duty of protecting the B. will not be liable to A. Part- building from falling, when making ridge v. Scott, 3 Mee. & W. 220. an excavation on his own land B This section is cited in § 1121. which would not cause it to fall in ° Harris v. Ryding, 5 Mee. & W. its natural state: Sullivan v. Zeiner, 60; McGuire v. Grant, 25 N. J. L. 98 Cal. 346; s. c. 33 Pac. Rep. 209; 356; Stevenson v. Wallace, 27 Gratt. 20 L. R. A. 730. The same opinion (Va.) 77, 88; Richards v. Rose, 9 was expressed by Gray, C. J., in Gil- Exch. 218; Gayford v. Nicholls, 9 more v. Driscoll, 122 Mass. 199, 207; Exch. 702. The same rule applies s. c. 23 Am. Rep. 312; 1 Thomp. Neg., where several buildings, built by a 1st ed., 254, 261. See also Mitchell common owner, so as to support v. Rome, 49 Ga. 25; Napier v. Bul- each other, have been afterwards winkle, 5 Rich. L. (S. C.) 311. But sold to different vendees; Richards see Covington v. Geyler, 93 Ky. 275; V. Rose, 9 Exch. 218; s. c. 23 L. J. s. c. 14 Ky. L. Rep. 145; s. c. 19 S. (Exch.) 3. W. Rep. 741. 999 1 Thomp. Neg.] caee of real property. line between his own and the adjoining lot, without using extraordi- nary means to protect such building, although it may be reasonably certain that it may be thereby endajigered, provided such land-owner exercises his right to so excavate without negligence.^'^ On the other hand, the mere giving of notice to the adjoining land-owner of his in- tention to excavate upon his own land does not exonerate the land- owner doing the excavating from the obligation of exercising reason- able care in conducting the work, to the end of preventing injury to his neighbor's building.'-^ § 1106. What if the Soil would have Sunk Without the Superim- posed Structures.^ — It does not follow that because houses are built on land, the owner has lost his right to so much lateral support as would have sustained the soil in its natural condition. If his soil would have sunk in consequence of the excavation, without the super- incumbent weight of the house, he is entitled to damages^ ^ for the in- jury to his soil or to the foundations of his house. ^* But the right to lateral support not being an absolute right, its infringement is not a cause of action without appreciable damage. Therefore, where A. dug a well near B.'s land, which sank in consequence, and a building erect- ed on it within twenty years fell, and it was proved that if the build- ing had not been on B.'s land, the land would have sunk, but the dam- age would have been inappreciable, it was held that B. had no right of action against A. The act itself being lawful, it is the fact of dam- ages that constitutes the injury.^^ § 1107. Eights may be Varied by Agreements between the Par- ties. — These relative rights may, of course, be varied by agreements between the parties. Thus, an owner excavating on his own lot may, "Covington V. Geyler, 93 Ky. 275; 186; s. c. 28 L. J. (Exch.) 250; s. c. 19 S. W. Rep. 741; 14 Ky. L. Stroyan v. Knowles, 6 Hurl. & N. Rep. 145; Louisville & N. R. Co. v. 454; s. c. 30 L. J. (Exch.) 102; Bonhayo, 94 Ky. 67; s. c. 14 Ky. L. Stevenson v. Wallace, 27 Gratt. Rep. 737; 21 S. W. Rep. 526; Bohrer (Va.) 77, 87. v. Dienhart Harness Co., 19 Ind. "Hunt v. Peaks, Johns. (Eng. App. 489; s. c. 49 N. B. Rep. 296; Ch.) 705. See, on this point, Gil- aft'g on rehearing 45 N. E. Rep. 668; more v. DriscoU, 122 Mass. 199. Spohn V. Dives, 174 Pa. St. 474; s. '= Smith v. Thackrah, L. R. 1 C. P. c. 34 Atl. Rep. 192; Bailey v. Gray, 564; s. c. 12 Jur. (N. S.) 545; 35 53 S. C. 503; s. c. 31 S. E. Rep. 354; L. J. (C. P.) 276; 1 Harr. & R. 615; Gilmore v. Driscoll, 122 Mass. 199; 14 Week. Rep. 832; 14 L. T. (N. S.) s. c. 23 Am. Rep. 312 ; Lapp v. Guten- 761. For the same principle, see kunst, 19 Ky. L. Rep. 1950; 44 S. W. Bonomi v. Backhouse, 9 H. L. Cas. Rep. 964 (not to be rep.). 503; s. c. 34 L. J. (Q. B.) 181; St. " Curr V. Hundley, 3 Colo. App. Helen's Smelting Co. v. Tipping, 11 54; s. c. 31 Pac. Rep. 939. H. L. Cas. 642; s. c. 35 L. J. (Q. B.) a This section is cited in § 1113. 66. "Brown V. Robins, 4 Hurl. & N. 1000 KEMOVING SUPPORT OF LAND. [2d Ed. by promising to protect the building of the coterminous owner, estop himself from denying liability for injuries to it, although, in the absence of such a promise, it would have been the duty of the other owner to protect his own building.^' It is the most obvious sugges- tion of justice that if the person excavating on his own land promises the adjoining owner that he will protect the building of the latter from injury or fall, the other may rely upon this promise, and is . relieved from further responsibility in shoring up or otherwise pro- tecting his own building.^' Therefore, where the owner who was doing the excavating 'promised the adjoining owner that he would excavate and lay up his wall on,e section at a time, and instead of keep- ing his promise, after laying one section of his wall, he dug a long and dangerous trench without notifying the other owner of his change of plan, whereby the building of the other owner fell into the excava- tion, it was held that he was liable to him for the damages.^* § 1108. Right of Excavating Owner to Shore up and Charge Ad- joining Owner with the Cost.^ — An owner of a lot who gives notice to an adjacent owner that he is about to make an excavation, may enter upon the adjacent lot and do anything necessary to protect the building thereon, and charge such owner with the expense of such work, if the latter fails to give his building proper support ; or he may proceed with his work, using ordinary care, without liability for the fall of the ad- joining owner's building.^® § 1109. Negligent Exercise of the Eight to Excavate in One's Own Soil.'' — But whatever may be the right of one land-owner to excavate his own soil so as to deprive his neighbor's land of its support, the authorities are agreed that he must exercise what care and skill he can to prevent injury to his neighbor; and if he inflict an unnecessary in- " Walters v. Hamilton, 75 Mo. doing the work, as to protect such App. 237; s. c. 1 Mo. App. Rep. 344. adjoining owner's wall and founda- " Gildersleeve v. Hammond, 109 tion from injury: Lapp v. Guten- Mich. 431; 33 L. R. A. 46; 3 Det. kunst, 44 S. W. Rep. 964; s. c. 19 L. N. 117; 43 Cent. L. J. 97; 67 N. Ky. L. Rep. 1950 (not to be rep.). W. Rep. 519. a This section is cited in § 1119. " Larson v. Metropolitan Street R. " Walters v. Hamilton, 75 Mo. Co., 110 Mo. 234; s. c. 16 L. R. A. App. 237; s. c. 1 Mo. App. Rep. 344. 330; 45 Alb. L. J. 514; 34 Cent. L. J. Right of excavating owner to shore 513 ; 19 S. W. Rep. 416. It has been up and recover expense from adjoin- held that a land-owner making an ing owner, aflBrmed in Eads v. Gains, excavation on his land for' the erec- 58 Mo. App. 586. Contra, and badly tion of a building, who agrees with decided under a statute which mere- the adjoining owner, for a compen- ly affirms the common law, is First sation, to remove rock projecting Nat. Bank v. Villegra, 92 Cal. 96; over his land in the foundation wall s. c. 28 Pac. Rep. 97. of such adjoining owner, must exer- b This section is cited in § 1070. cise such ordinary care and skill in 1001 1 Thomp. Neg.] care of real property. jury upon his neighbor through negligence, he must pay the dam- ages.^" Thus, the authorities axe agreed that one who proposes to excavate, or to make other alterations or improvements upon his own land which may endanger the land or building of his neighbor, is bound to give the latter reasonable notice of what he proposes to do, to enable him to take the necessary measures for the preservation of his own property ;^^ and this obligation is frequently enforced by stat- ute,^ ^ or by municipal ordinances, and these are a valid exercise of the polige power. ^^ The failure to give such notice is, in theory of the law, such negligence as will render him liable for any damages to the property of the adjoining owner which may be occasioned by the work which he does on his own land, in the absence of knowledge on the part of such adjoining owner otherwise acquired;^* though actual knowledge on the part of the other land-owner will dispense with the giving of such notice, even where it is required to be given by stat- ute.^^ Nor does the giving of such notice exonerate him from further duty toward the neighboring land-owner. He must still conduct the work of excavating with reasonable care and skill, and is liable to his neighbor for any damages caused by the want of it.^^ On the other ^'Washb. on Ease. 437; Gale on Base. 365; Shafer v. Wilson, 44 Md. 268, 280; Baltimore &c. R. Co. v. Reaney, 42 Md. 117 ; Foley v. "Wyeth, 2 Allen (Mass.) 131; s. c. 79 Am. Dec. 771; Quincy v. Jones, 76 111. 231, 241; s. c. 20 Am. Rep. 243; Charless v. Rankin, 22 Mo. 566; s. c. 66 Am. Dec. 642; Walters v. Pfeil, 1 Moo. & M. 364; Shrieve v. Stokes, 8 B. Mon. (Ky.) 453; Panton v. Hol- land, 17 Johns. (N. Y.) 92; s. c. 8 Am. Dec. 369; Stevenson v. Wal- lace, 27 Gratt. (Va.) 77, 89; Dixon V. Wilkinson, 2 McArthur (D. C.) 425; Dodd v. Holme, 3 Nev. & Man. 739; Davis v. London &c. R. Co., 2 Scott N. R. 74; s. c. 1 Man. & G. 799; 2 Eng. Rail. Cas. 308; 1 Drink. 1; Lukin v. Godsall, Peak. Ad. Cas. 15; Trower v. Chadwick, 3 Bing. N. C. 334; Austin v. Hudson River R. Co., 25 N. Y. 334; Boothby v. An- droscoggin R. Co., 51 Me. 318; Lar- son V. Metropolitan Street R. Co., 110 Mo. 234; s. c. 16 L. R. A. 330; 45 Alb. L. J. 514; 34 Cent. L. J. 513; 19 S. W. Rep. 416; Ulrick v. Dakota Loan &c. Co., 2 S. D. 285; s. c. 51 N. W. Rep. 1023; afE'g s. c. 49 N. W. Rep. 1054; Covington v. Geyler, 93 Ky. 275; s. c. 19 S. W. Rep. 741; 14 Ky. L. Rep. 145; Block v. Haseltine, 3 Ind. App. 491; s. c. 1002 29 N. E. Rep. 937; Schultz v. Byers, 53 N. J. L. 442; s. c. 22 Atl. Rep. 514; 13 L. R. A. 569; 26 Am. St. Rep. 435; 44 Alb. L. J. 290; 33 Cent. L. J. 300; Gildersleeve v. Hammond, 109 Micb. 431; s. c. 33 L. R. A. 46; 3 Det. L. N. 117; 43 Cent. L. J. 97; 67 N. W. Rep. 519; Krish v. Ford, 19 Ky. L. Rep. 1167; s. c. 43 S. W. Rep. 237 (not to be rep.). ''^ 3 Kent's Comm. 437; Massey v. Goyder, 4 Car. & P. 161; Lasala v. Holbrook, 4 Paige (N. Y.) 169; Sbafer v. Wilson, 44 Md. 268, 281; Brown v. Werner, 40 Md. 15; Krish V. Ford, 19 Ky. L. Rep. 1167; s. c. 43 S. W. Rep. 237 (not to be rep.). '^ See, for example. Dak. Comp. Laws, § 2784; Ulrick v. Dakota Loan &c. Co., 2 S. D. 285; s. c. 49 N. W. Rep. 1054; s. c. affirmed in 51 N. W. Rep. 1053. ='Eads V. Gains, 58 Mo. App. 586. ^* Schultz V. Byers, 53 N. J. L. 442; s. c. 13 L. R. A. 569; 26 Am. St. Rep. 435; 44 Alb. L. J. 290; 33 Cent. L. J. 300; 22 Atl. Rep. 514. "^Novotoy V. Danforth, 9 S. D. 301; s. c. 68 N. W. Rep. 749. ^^ Ulrick V. Dakota Loan &c. Co., 2 S. D. 285; s. c. 49 N. W. Rep. 1054; aff'd 51 N. W. Rep. 1053; Massey v. Goyder, 4 Car. & P. 161. REMOVING SUPPORT OP LAND. [2d Ed, hand, having given this notice and having afEorded his neighbor a reasonable opportunity to protect his own property, he is not answer- able for any injury which may happen to the property of his neigh- bor, provided he proceeds with the work of excavation on his own land with reasonable care and skill.^^ § 1110. Degree of Care Demanded of the Land-Owner. — With re- gard to the measure or degree of care incumbent upon the land-owner making the excavation, it is to be observed that it will not be a defense that he used such care as his builder and superintendent, a skillful and careful person, may have deemed necessary, if there was actual negligence. ^^ Upon this subject it has been held erroneous to rule that the proprietor doing the excavating is bound to use such care and caution as a prudent man, experienced in such work, would have exer- cised if he had been the owner of such building. This goes beyond the care which the law exacts of a land-owner. In thus excavating, he exercises a right of property with which his neighbor can not interfere ; and although it is his duty to use ordinary care to avoid injuring his neighbor, yet he is not bound to observe the same care that he would have taken had he been the owner of both buildings.^" Moreover, where the excavation was of itself lawful, and the gravamen of the plaintifE's complaint was that it was unskillfuUy done, it was held in- cumbent on the plaintiff to show negligence by other proof than by the mere fact that the walls of his house cracked and gave way. In the view of the court so deciding, this was not a case for the application of the rule, res ipsa loquitur.^" § 1111. Duty to Excavate Section by Section. — But it has been held that a land-owner is not required to excavate upon his own land for a cellar, section by section, or to build his wall in sections, in order to prevent the building on the land of an adjoining owner from fall- ing. ^^ But aside from the bald injustice involved in this last de- cision, it is to be observed that a bench of judges presumably do not know so much about excavating, building, architecture, etc., as to be able to decide such a question as matter of law; but that, in many cases, the excavating for the foundation of a building, section by sec- tion, may be a reasonable and necessary precaution ; and whether it is so or not ought in most cases to be a question for a jury. On the other ^'3 Kent Com. 437; Block V. Hasel- "Ward v. Andrews, 3 Mo. App. tine, 3 Ind. App. 491; s. c. 29 N. E. 275. See Schmidt v. Harkness, 3 Rep. 937. Mo. App. 585. =»Charless v. Rankin, 22 Mo. 566. =^Obert v. Dunn, 140 Mo. 476; s. c. ^ Charless v. Rankin, 22 Mo. 566, 41 S. W. Rep. 901. 574. 1003 1 Thomp. Neg.] care of real property. hand, it has been held negligence per se for a land-owner to excavate to the depth of seven or eight feet for a length of over fifty feet in a sandy soil, close to his boundary line, without making any effort what- ever to prevent the soil of an adjoining owner from caving in to a distance of four and one-half feet from the line where such adjoining owner had placed the foundation wall of a building; and the former ovmer, so excavating, was hence liable for 'an injury to such founda- tion wall.^^ § 1112. Negligence in Shoring Up. — It is to be carefully kept in mind that, if the land of the adjoining owner is not artificially weight- ed by buildings or other structures, the owner making the excavation in his own land is bound at his peril to keep his neighbor's land from falling; he is therefore hound to shore it up so that it will not fall; and if he shores it up, but it nevertheless does fall, the question whether he used reasonable care and skill in shoring it .up will be im- material. The reason is that, his neighbor having an absolute right to the support of his land, it is immaterial how he is deprived of that right. But where the land of the adjoining owner is superweighted by buildings or other structures so that he has at most a qualified right to its lateral support, then, upon the question what will and what will not be negligence in the owner making the excavation, it is to be carefully kept in mind that he is not hound to shore up the land of his neighbor unless that would have been necessary to prevent it from falling in its natural condition ; and that he is not bound to shore up the building or other structure of his neighbor unless the neighbor has acquired a right to have it supported, by prescription or otherwise, as stated in preceding sections.^^ On the other hand, he is bound, as already seen, to give the neighboring land-owner reasonahle no- tice^^ of his purpose to make the excavation, and to give him a reason- able opportunity to go upon the land of the owner making the exca- vation, and to shore up his building or other structure while the ex- cavation is in progress. Again, although the land-owner making the excavation is under no obligation to shore up his neighbor's building, yet if he voluntarily assumes this ohligation, but is negligent in its performance, whereby the building is injured, he must pay damages. ^° '^ Gildersleeve v. Hammond, 109 London, 9 Barn. & Cress. 725; 3 Car. Mich. 431; 33 L. R. A. 46; 3 Det. L. & P. 363; Block v. Haseltine, 3 Ind. N 117; 43 Cent. L. J. 97; 67 N. W. App. 491; s. c. 29 N. E3. Rep. 937. Rep. 519. "'Ante, §§ 1105, 1108, 1109. '■^ Ante, § 1103; Peyton v. Govern- '"Covington v. Geyler, 93 Ky. 275; ors of St. Thomas's Hospital, 4 Man. 14 Ky. L. Rep. 145; 19 S. W. Rep. & R. 625; s. c. suh nam. Peyton v. 741; ante, § 1107. 1004 REMOVING SUPPORT OF LAND. [2d Ed. § 1113. ftuestions for the Jury in these Cases. — It is to be observed that, although the soil of the land-owner sustaining the injury may be weighted with buildings, yet this does not deprive him of his right to the support of his land in its natural condition; and if the work done by the defendant on his own land is of such a character that it would have caused the land of the plaintifE to fall in its natural con- dition, then, the plaintifE will be entitled to recover damages not only for the injury to his land, but for the consequential injury to the building supported by it.^® From this view the conclusion has been deduced that, whether the proximate cause 'of the falling of the plaint- iff's building was the excavation or other work done by the defendant on his own land, or was the weight of the building upon the soil sup- porting it after the lateral support had been removed, is a question for the jury.^'' It is also a question of fact for a jury, whether a build- ing was injured by want of reasonable skill and care on the part of an adjoining lot-owner who, in making an excavation on his lot, under- took to brace the wall of the building, or whether the injury was due to the sandy character of the ground. ^^ § 1114. Damages Recovered for the Unlawful Deprivation of such Support. — The measure of damages for the unlawful removal of lat- eral support by an excavation, is the diminution of the value of the plaintiff's land, caused by the falling, caving in, or washing of the soil, as the natural result of removing the lateral support.^ ^ Where a land-owner, by digging on his own land, has deprived the land of his neighbor of its natural support, he is, in the view of one court, whether negligent or not, liable in damages to his neighbor, not only for the actual injury to his soil, but for the injuries to his buildings. But where the buildings have, by their natural downward pressure, caused the natural support of the soil to give way, their owner can not re- cover damages either for the injury to his land or to the buildings upon it ; and whether the one cause or the other has produced the in- jury, seems to be a question for a jury^° An opposing rule of dam- ages is, that if A. digs so near the land of B. that it falls into his pit, together with the buildings and other improvements thereon, B. may ™ At least this is the view which " Schultz v. Bower, 64 Minn. 123 ; is gathered from Louisville &g. R. s. c. 66 N. W. Rep. 139. See also Co. V. Bonhayo, 94 Ky. 67; s. c. 14 Moellering v. Evans, 121 Ind. 195; Ky. L. Rep. 737; 21 S. W. Rep. 526; s. c. 6 L. R. A. 449; Schultz v. Bower, and that it is the law, see ante, 57 Minn. 493; Stimmel v. Brown, 7 § 1106. Houst. (Del.) 219. " Louisville &e. R. Co. v. Bonhayo, *° Louisville &c. R. Co. v. Bonhayo, supra. 94 Ky. 67; s. c. 14 Ky. L. Rep. 737; ''Covington v. Geyler, 93 Ky. 275; 21 S. W. Rep. 526. s. c. 14 Ky. L. Rep. 145; 19 S. W. Rep. 741. lOOF I J-homp. Neg.J care of KEAL PEOPERT'i'. recover damages from A. for the actual loss of and injury to his soil, but not for any injury to the superimposed improvements,*^ although the soil would have fallen without the additional weight of such im- provements.*^ Another court has held that for the deprivation of the support of the soil of the adjacent owner in its natural state, the owner is entitled to damages in an amount sufficient to restore his land to as good a condition of lateral support as before the excavation ; but, of course, the jury can not give more than nominal damages, in the absence of evidence tending to show what the damages are.*^ It is scarcely necessary to add that if the land-owner making the exca- vation takes reasonable precautions to prevent the soil of the adjoin- ing owner from falling, he will not be liable either for the injury to the land, or to the superstructure.** § 1115. What if the Work is Done by an Independent Contract- or. — Nor, in a ease where the plaintiff was entitled to support for his building, as well as for his land, was it a defense against liability for negligence, to such an action, that the defendant contracted with an experienced and skillful excavator to do the work.*^ These rulings refer themselves to that class of cases which hold that where one does upon his own land an act which of itself is a nuisance, he is answer- able to any one who has sustained damage thereby, although the work was done by an independent contractor. But in a case where the plaintifE is not of right entitled to support for his house, and where the gravamen of his action is hence not the unlawfulness of the act itself, but negligence in the manner of performing it, it seems upon principle that the fact that the defendant had let out the work to an independent contractor, skilled in such business and of good repute, would exonerate him; for the negligence would not be his, but that of the contractor, and the latter would be liable. *° But if there is an absolute duty imposed by statute, or by the principles of the common law, upon a proprietor who proposes to excavate for the purpose of building, it will be no defense to the action of a coterminous propri- etor, injured by a violation of it, that the former contracted with an- other to do the work.*^ If an excavation result in a trespass upon " Gildersleeve v. Hammond, 109 N. 117; 43 Cent. L. J. 97; 67 N. W. Mich. 431, s. c. 33 L. R. A. 46; 67 Rep. 519. N. W. Rep. 519. '"' Stevenson v. Wallace, 27 Gratt. "Gilmore v. Drlscoll, 122 Mass. (Va.) 77, 91; Bower v. Peate, 1 Q. 199; s. c. 23 Am. Rep. 312; 1 Thomp. B. Div. 321. Neg., 1st ed., 254. '"' Gayford v. Nicholls, 9 Hxcli. 702. " Stlmmel v. Brown, 7 Houst. "Ante, §§ 665, 667; Dorrity v. (Del.) 219. Rapp, 72 N. Y. 307 (reversing 11 "Gildersleeve v. Hammond, 109 Hun (N. Y.) 374) ; s. c. 4 Abb. N. C. Mich. 431; 33 L. R. A. 46; 3 Det. L. (N. Y.) 292. 1006 KEMOVING SUPPORT OF LAND. [2d Ed. adjacent property, in consequence of the work being done in conform- ity with plans furnished by the proprietor, he will be responsible, although the work were done by an independent contractor.** On a principle already considered,*" the contractor may be liable jointly with his principal to the adjoining owner, although the contractor merely engaged to make the excavation, and did it, supposing that his principal would take measures to support the adjoining land.^° Upon the question of reasonable care in excavating a cellar which had re- sulted in injury to an adjoining house, it is admissible to show the measures of safety usually adopted by builders in digging cellars un- der such circumstances.^^ § 1116. Liability of Municipal and Private Corporations and Pub- lic Commissioners for Removing Lateral Support of Land. — We shall hereafter see that, in the opinion of some courts, a municipal corpora- tion^ in grading its streets, can excavate the earth so as to deprive abutting owners of the natural support of their soil, without being answerable in damages therefor ;^^ whilst other courts place municipal corporations in respect of such uses of their property, upon the same footing with private persons. ^^ The latter is the modern and better view. It proceeds upon the principle that the owner of land abutting upon a public street has the same right to the support of his soil in its natural state, from the soil of the street, which he has from the soil of any other adjoining proprietor; and hence, that in excavating the street the city is bound to shore up or otherwise prevent the land of the abutting owner from falling into the excavation, upon peril of paying damages in case it does fall in.^* This is so even in "Mamer v. Lussem, 65 111. 484; Bing. N. C. 34; s. c. 3 Scott 356; 2 ante, § 650, et seq. Hodges 120; Clothier v. Webster, "Ante, § 611. 12 C. B. (N. S.) 790; s. c. 31 L. J. I'" Green v. Berge, 105 Cal. 52; s. c. (C. P.) 216. 38 Pac. Rep. 539. "'' Quincy v. Jones, 76 III. 231; s. c. " Shrleve v. Stokes, 8 B. Men. 20 Am. Rep. 243. See McGuire v. (Ky.) 457. The liability of the Grant, 25 N. J. L. 356; s. c. 67 Am. land-owner making the excavation Dec. 49. In Jones v. Bird, 1 Dow. for the trespass of his contractors in & Ry. 497, damages were given entering an adjoining building of against bricklayers employed by the the plaintiff for the purpose of shor- Commissioners of Sewers, for dig- ing it up, where there is a statute ging a sewer so negligently, through requiring the excavating land-owner failing to shore it up, that a neigh- to shore up his neighbor's buildings: boring house fell. Ketcham v. Newman, 141 N. Y. 205; " Stearns v. Richmond, 88 Va. 992; s. c. 36 N. E. Rep. 197; 56 N. Y. St. s. c. 16 Va. L. J. 243; 14 S. B. Rep. Rep. 816; 49 Alb. L. J. 226. 847; New Westminster v. Brighouse, "'' Callander v. Marsh, 1 Pick. 20 Can. S. C. 520; s. c. 38 Am. & (Mass.) 417; O'Connor v. Pitts- Eng. Corp. Cas. 315. ^In this last burgh, 18 Pa. St. 187; Cincinnati v. case it was held that tHe land-owner Penny, 21 Ohio St. 499; s. c. 48 Am. might resort to his action at law Rep. 73; Grocers' Co. v. Donnee, 3 against the municipal corporation 1007 1 Thomp. Neg.] care of real property. the absence of a constitutional provision prohibiting the taking of private property for public uses without the payment of just compen- sation/'* The same rule, of course, applies where a land-owner is in- jured by the removal of the natural support of his land in the con- struction of drains, or in making any other municipal improvements. °* § 1117. Public Commissioners so Liable. — The same doctrine has been applied to a case where public commissioners, in digging a sewer trench in the street in front of land under the surface of which there was quicksand containing much water, removed the lateral support of the land by permitting the quicksand and water to run into the trench, and then pumped it out, in consequence of which the surface of the land cracked and settled, and the building standing thereon was in- jured, — so as to render the commissioners personally liable in dam- ages to the adjoining land-owner. The court proceeded on the view that the nature of the soil either was or ought to have been known to the commissioners, and that when they made the contract for digging the sewer, they ought to have required the contraetor to take such pre- cautions as the extraordinary nature of the case required, to prevent the catastrophe which happened. **' § 1118. Private Corporations so Liable. — ISTor does any immunity from action extend to a private corporation, such as a railway com- pany, which has been authorized by law to make for its own profit an extraordinary use of a street of a city, as by excavating a tunnel therein. The principle that damage can not be predicated upon the doing of a lawful act, does not there apply; for the act, although au- for the damages, and was not com- Pomroy v. Granger, 18 R. I. 624; pelled to resort to the special rem- s. c. 29 Atl. Rep. 690. That the stat- edy given by the charter of the utes of New York imposing upon city. - - - - It has been held adjoining owners making excava- that a city is liable for the damages tions in their own land the obliga- sustained by the owner of a build- tion of protecting the lands and ing or coal pocket resting on piles buildings of their neighbors, applies driven on his land in a river, caused only to private owners, and not to by its negligently digging and ex- municipal corporations, — see Jencks cavating the river bottom round and v. Kenny, 28 Abb. New Cas. (N. Y.) near his piles, not in dredging to 154; s. c. 19 N. Y. Supp. 243. improve the harbor, but to save the °° Park v. Seattle, 5 Wash. 1 ; s. c. expense of frequent removals of 20 L. R. A. 68; 41 Am. & Eng. Corp. sand, filth, and sewage deposited by Cas. 274; 31 Pac. Rep. 310; 32 Pac. it in the river; the result being to Rep. 82. deprive his land of its natural sup- "' Columbus v. Williard, 7 Ohio C. port, and to cause it to move out- C. 33. wards into the excavation and dis- " Cabot v. Kingman, 166 Mass. place and dislodge the piles so as to 403; s. c. 33 L. R. A. 45; 44 N. E. render the building unfit for use: Rep. 344. 1008 REMOVING SUPPORT OF LAND. [2d Ed. thorized by the legislature, is deemed to become, quoad hoc, unlawful as soon as damages ensue.°* § 1119. Right to Lateral Support of Land under Civil Code of Cali- fornia, Affirming Common Law. — Statutes exist in several States, and in others municipal ordinances have been enacted under power con- ferred by the legislature in municipal charters, dealing with the rights under consideration. The provision of the Civil Code of California on the subject seems^to be merely an affirmation of the common law. It is as follows : "Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land, to make proper and usual excavations on the same for the purposes of construction, on using ordinary care and skill, and taking reasonable precautions to sustain the land of the other, and giving previous reasonable notice to the other of his intention to make such excavations.'"' ' This stat- ute construed does not, it is perceived, impose any obligation upon the land-owner making the excavation beyond that of giving reasonable notice to the coterminous land-owner, and using ordinary care and skill and taking reasonable precautions to support his land. Where such notice was given and the adjacent land-owner paid no attention to it, and took no precaution to support his own land, but the land- owner making the excavation shored it up and supported it at a large expense to himself, it was held that he could not recover from the land-owner whose land he had thus supported, the cost of so doing. The opinion, which is rather foggy, proceeds on the ground that he was not obliged to do it, and that it was consequently his own volun- tary act, which he could not turn into a ground of liability on the part of the defendant."" By giving the notice required by this statute the land-owner proposing to make the excavation does not relieve him- self of any portion of the prudent care with which he must conduct the work, the exercise of which care would have been incumbent upon him in the absence of the statute. "His excavation," it has been said, "'Baltimore &c. R. Co. v. Reaney, damage; an allegation that the de- 42 Md. 117. Contra, Dodd v. Will- fendant ran its trains and conducted iams, 3 Mo. App. 278. In an action its business on its railroad where against a railroad company for re- such excavation had been made, moving the lateral support of the without a retaining wall to protect plaintiff's land, the gravamen of the the plaintiff's lot, has been held in- action is that defendant, owning the sufficient: Secongost v. Missouri &c. adjacent land, dug away and exca- R. Co., 53 Mo. App. 369. vated it so near the plaintiff's land =' Civ. Code Cal., § 832. as to withdraw the support of the "First Nat. Bank v. Villegra, 92 plaintiff's soil in its natural condi- Cal. 96; s. c. 28 Pac. Rep. 97. Com- tion, in consequence of which it fell pare ante, § 1108. into the excavation, to the plaintiff's VOL. 1 THOMP. NEC — 64 1009 1 Thomp. Neg.] care of real property. "must be such as would not have caused the soil of the adjacent lot to tumble in, had it remained in its natural state, not built upon. * * * The object of the notice is, that the owner of the building may have his attention called to the work, and, if necessary, shore up his wall or strengthen his foundation." The court also regard the statute as substantially an affirmation of the common law. "Since the enactment of the Code," continues the court, "the rights and duties of adjoining proprietors, with reference to- the matter in hand, are substantially the same as they were before, provided notice is given by the party intending to excavate."^^ The court conclude "that the owner proposing to excavate is not required to sustain the adjacent land when weighted by buildings or structures." By giving the notice required by the statute, and conducting the excavation so that the soil of the neighboring owner would not fall if unweighted by artificial structures, his whole duty is performed.*^ With this statute in force, a land-o^vner whose land is weighted with buildings, can not acquire as against a coterminous land-'owner a prescriptive right to the support of his buildings, and thereby cast upon the latter the duty of protecting them from injury consequent upon an excava- tion which he makes upon his own land.^^ § 1120. Under Statutes of New York and Ohio.— A statute of New York imposing upon "adjoining owners," excavating upon their own land, the duty of shoring up and protecting the lands and buildings of neighboring owners,"* has been construed as applying to private owners merely, and not to municipal corporations. Therefore an in- junction was refused to restrain a contractor of the City of Few York from excavating to construct a sewer underneath a sidewalk in front of the plaintiff's property, without shoring up the plaintiff's land and buildings,"^ — a decision applying a rule which would seem to have been provoked by a sheer love of injustice. The owner of a leasehold has such an interest in the demised premises as will enable him to maintain an action for a violation of the last named statute."* So much of the statute as makes it obligatory upon the owner making the excavation to preserve any adjoining wall from injury, "if afEord- " Aston V. Nolan, 63 Cal. 269. <" Sullivan v. Zelner, 98 Cal. 346. •"Aston V. Nolan, 63 Cal. 269. This "N. Y. Consol. Act, § 474; amend- doctrlne was reaflBrmed and applied ed N. Y. Act 1885, ch. 456, and N. Y. in Conboy v. Dickinson, 92 Cal. 600; Act 1887, ch. 566. s. c. 28 Pac. Rep. 809. A similar "' Jencks v. Kenny, 28 Abb. N. Gas. construction was put upon a similar 154; s. c. 19 N. Y. Supp. 243. - statute of South Dakota, — Comp. "Cohen v. Simmons, 66 Hun (N. Laws Dak., § 2784: Novotny v. Y.) 634; s. c. 50 N. Y. St. Rep. 146; Danforth, 9 S. D. 301; s. c. 68 N. W. 21 N. Y. Supp. 385. Rep. 749. 1010 KEMOVING SUPPOKT OF LAND. [2d Ed. ed the necessary license to enter on the adjoining land, and not other- wise/' is construed as requiring the adjacent land-owner to grant the license only when requested/^ § 1121. Contributory Negligence of the Injured Land-owner. — If the owner of the building injured by the excavation or alteration, after notice from the adjacent owner of his intention to make it, fail to take suitable measures, by shoring up his building or otherwise, to prevent its being injured, he will, on familiar grounds, be bound by his own contributory negligence from recovering damages, unless the work of excavating or altering were prosecuted with such reckless or wanton disregard of his rights that such precautions would have been una- vailing. The doctrine of Davies v. Maim,'^^ that although A. may have negligently exposed his property to the injury complained of, yet this will not justify B. in injuring it, if such injury could be avoid- ed by the exercise of ordinary care, — is applicable here. Accordingly, although the owner of the dominant tenemenf"* may have been guilty of negligence in failing to take suitable precautions to prevent his tenement being injured by the work which the owner of the servient tenement proposes to do, yet this will not justify the latter in inflict- ing such injury if it can be avoided by the exercise of ordinary care.'" So, if one has built his house so that one of its walls comes to the boundary-line between his lot and his neighbors, and whilst his neigh- bor is afterwards excavating on his own ground for the purpose of building, in consequence of which excavating it crumbles and falls, the proprietor making the excavation will not be bound to pay dam- ages if the excavating was conducted with due care and skill, so that the wall, if properly built of suitable materials, would have withstood the removal of the lateral support.'^ But this application of the doc- trine of contributory negligence can not fairly be made where the " Colien V. Simmons, 66 Hun (N. at a distance from the boundary Y.) 634; s. c. 50 N. Y. St. Rep. 146; line, may be torn down by tbe owner 21 N. Y. Supp. 385. The common- and the earth between the wall and law doctrine as to the lateral sup- the higher lot removed: Kilgour v. port of land has been abrogated in Wolf, 4 Ohio N. P. 183; s. c. 6 Ohio Ohio, by Rev. St. Ohio, § 2677, as Dec. 343. amended May 9, 1894, in cases where "' 10 Mee. & W. 546; s. c. 1 Thomp. the statute is complied with: Hall Neg., 1st ed., p. 1105. V. Kleeman, 4 Ohio N. P. 201 ; s. c. °° I am using, for convenience, 6 Ohio Dec. 323. Construction of terms which would be applicable if the provision of the Ohio statute the right were strictly an easement, allowing excavation to the depth of "Walters v. Pflel, Moo. & M. 364; twelve feet, with reference to lots Charless v. Rankin, 22 Mo. 566, 573 ; extending from a higher to a lower Dodd v. Holme, 3 Nev. & M. 739; street: Elshoff v. Deremo, 3 Ohio N. s. c. 1 Ad. & E. 493. P. 273. Circumstances under which " Richart v. Scott, 7 Watts (Pa.) a wall built to protect the lot of an 460. Compare Dodd v. Holme, 3 owner against a lot lying higher, Nev. & M. 739; s. c. 1 Ad. & E. 493. erected entirely on the lower lot and 1011 1 Thomp. Neg.j care of eeal property. owner of the building injured is entitled, on the ground of prescrip- tion,''^ or of implied grant,''^ to support both for his land and his building. In such a case, it has been held erroneous to instruct the jury that it devolved upon the plaintiff to protect her building, by providing herself other supports, and that the defendant was not liable if the plaintiff had knowledge of the danger, and could have averted it by prompt action.''* In such a ease, whether the fact that the build- ing of the dominant tenant was negligently constructed ought to con- stitute a bar to the recovery of damages, presents a question of much difficulty. It may be urged, on the one hand, that such a building, though defective in its construction, would not have fallen or been impaired, but might have stood a great while but for the act of the servient tenant in removing" the support to which it was entitled. On the other hand, it may be contended that it would be unreasonable and unjust to allow the dominant tenant to deprive the servient tenant of the privilege of improving his own property and enjoying the benefit of it, by erecting a building on his lot so defective in its construction, in its materials, or in its foundation, that the servient tenant can not, with all due care and proper precaution, improve his own property without incurring the liability of paying for his neighbor's.'^ The Court of Appeals of Virginia has solved this difficulty by holding that, while the facts supposed do not constitute a bar to an action, they may be considered by the jury on the question of damages.'"^ This is one of the few instances where the admiralty doctrine of ap- portioning damages, in case of contributory negligence, has been adopted by a court of common law. Eecalling the doctrine that con- tributory negligence is no defense in the case of wanton, intentional, or willful injuries,'^ we find a holding to the effect that one who, knowingly, intentionally, and willfully removes the natural sup- port of a building belonging to another, situated four and one-half feet from the boundary-line, by so excavating his own land as to cause the soil to cave under the foundation of the building of the adjoining owner, is liable for the damages caused thereby, although the adjoining owner may have been negligent in failing to protect his own build- ing.'^ § 1122. Eemedy by Injunction. — Where a man suffers an injury in consequence of his land or house being deprived of the support "Araie, § 1103. (Va.) 77, 91. But see Dodd v. "Ante, § 1104. Holme, 3 Nev. & M. 739; s. c. 1 Ad. " Stevenson v. Wallace, 27 Gratt. & E. 493. (Va.) 77, 90. ''^ Ante, § 206, et seq. '" This was the contention in Stev- " Gildersleeve v. Hammond, 109 enson v. Wallace, 27 Gratt. (Va.) Mich. 431; s. c. 33 L. R. A. 46; 3 77, 90. Det. L. N. 117; 43 Cent. L. J. 97; " Stevenson v. Wallace, 27 Gratt. 67 N. W. Rep. 519. 1012 KEMOVING SUPPORT OF LAND. [2d Ed. which he may rightfully claim from the land of his neighbor, his rem- edy is commonly sought in an action for damages ; hut where such an unlawful excavation is threatened as must inevitably result in dam- ages, the case is one in which a court of equity will sometimes inter- pose by injunction.^* This remedy was successfully invoked where the proprietor of a brick-yard had excavated to the depth of sixty feet, within thirty-two feet of the plaintiff's lot, and at some points nearer, causing the plaintiff's land to crack and subside, and his fences to crack and stretch apart, — the defendant threatening to continue the excavation to the boundary-line.*" § 1123. Statute of Limitations Huns only from Accrual of Dam- ages. — A remaining question relates to the application of the statute of limitations to a right of action founded on such injury. Does the statute begin to run from the time of the making of the excava- tion, or from the time at which damage actually accrues to the plaint- iff's house or land in consequence of it? It has been held by the judges of England and the law lords, upon thorough consideration, that the statute does not begin to run until damage has actually ac- crued.*^ § 1124, Liability for Removing the Subjacent Support of Land. — Since the leading case of Humphries v. Brogden, it does not appear to have been doubted, either in England or America, that prima facie, the owner of the surface land is entitled, ex jure naturae, to have his land supported by the subjacent strata, and that one having a right to win minerals beneath is bound to leave sufficient ribs or columns to support the soil at the surface, or pay the damages which may result from its subsidence ; and if such subsidence is caused by reason of his not leaving sufficient support, it will be no defense that he worked the mines carefully and according to custom.*^ This prima facie right may "Farrand v. Marshall, 19 Barb, nomi v. Backhouse, El. Bl. & El. (N. Y.) 380; s. c. 21 Barb. (N. Y.) 646, and reversing s. c. in Queen's 409; Hunt v. Peake, Johns. (Bng. Bench, El. Bl. & El. 622). Compare Ch.) 705. Niclirin v. Williams, 10 Exch. 259, '"Farrand v. Marshall, 19 Barb, which this case in principle over- (N. Y.) 380. Circumstances under rules; and Fisher v. Beard, 32 Iowa whlcb an injunction was denied to 346. prevent a coterminous land-owner '^ Humphries v. Brogden, 12 Ad. from making further erections on & El. (N. S.) 739; s. c. 15 Jur. 124; his walls: Graves v. Mattison, 67 Vt. 20 L. J. (Q. B.) 10; 1 Thomp. Neg., 630; s. c. 32 Atl. Rep. 498. 1st ed., 263; Brown v. Robins, 4 ''Backhouse v. Bonomi, 9 H. L. Hurl. & N. 185; s. c. 28 L. J. (Exch.) Cas. 503; s. c. 34 L. J. (Q. B.) 181; 250; Rogers v. Taylor, 2 Hurl. & N. 7 Jur. (N. S.) 809; 9 Week. Rep. 828; s. c. 27 L. J. (Exch.) 173; Jones 769; 4 L. T. (N. S.) 754 (affirming v. Wagner. 66 Pa. St. 429; s. c. 5 s. c. in Exch. Cham., sub nom. Bo- Am. Rep. 385; Horner v. Watson, 79 1013 1 Thomp. Neg.] care of real property. be varied by the covenants of deeds, and perhaps by custom;" but a custom that mines may be worked without making compensation for damage done to dwelling-houses or other buildings has been held un- reasonable and void."* "There is no doubt," said Lord Wensleydale, "that prima facie the owner of the surface is entitled to the surface itself and all below it, ex jure naturae; and those who claim the prop- erty in the minerals below, or any interest in them, must do so by some grant from or conveyance by him; or, it may be, from the crown, as suggested by Lord Campbell in the case of Humphries v. Brogden.^^ The rights of the grantees to the minerals, by whomsoever granted, must depend upon the terms of the deed by which they are conveyed or reserved when the surface is conveyed. Prima facie, it must be presumed that the minerals are to be enjoyed, and therefore that a power to get them must also' be granted or reserved as a necessary inci- dent. It is one of the cases put by Sheppard*" in illustration of the maxim Cuicunque aliquid conceditur, conceditur etiam et id sine quo res ipsa non esse poiuii, — that by the grant of mines is granted the power to dig them. A similar presumption, prima facie, arises that the owner of mines is not to injure the owner of the soil above by work- ing them, if it can be avoided. But it rarely happens that these mutual rights are not precisely ascertained and settled by the deed by which the right to the mines is acquired, and then the only question would be as to the construction of that deed, which may vary in each case."*^ Accordingly, it has been held that the owner of land may, by the covenants of his deed granting the right to remove minerals from beneath the surface, estop himself and his (subsequent) tenants from claiming damages for the subsidence of their lands or houses caused by the getting of such minerals, other than those pointed out in the deed, or from claiming them in any other manner than that Pa. St. 242; s. o. 21 Am. Rep. 55; Zinc "^ 12 Q. B. 739; 20 L. J. (Q. B.) 10. Co. v. Pranklinite Co., 13 N. J. L.342. »» Touchstone, 89, chap. 5. See Wilson v. Waddell, 2App.Cas.95. *'Rowbotham v. Wilson, 8 H. L. It follows that if the owner of a lot Cas. J60. Most of the cases involv- enters upon the adjacent lot of his ing the right of subjacent, support neighbor and removes the soil sup- turn upon the terms of deeds con- porting a wall on such lot, without veying mines, minerals, and the the consent of the owner, he will be right to mine. Such are Williams liable for the resulting injuries to v. Bagnall, 12 Jur. (N. S.) 987; such owner's building, without re- Smart v. Morton, 5 El. & Bl. 30; gard to the care used to avoid such Harris v. Ryding, 5 Mee. & W, 60. injuries: Walters v. Hamilton, 75 It has also been the subject of stat- Mo. App. 237; s. c. 1 Mo. App. Rep. utory regulation. See Fletcher v. 344. Great Western R, Co., 4 Hurl. & N. '^Humphries v. Brogden, 12 Ad. & 242; Stockbridge, Navigation Co. v. El. (N. S.) 739. Dudley, 3 El. & El. 409; Wyrley &c. '^ Hilton V. Lord Granville, 5 Q. B. Canal v. Bradley, 7 East 368. 701. 1014 EEMOVING SUPPORT OF LAND. [2d Ed. prescribed in the deed.^* It seems that this right, like the right of lateral support, extends only to the soil in its natural condition;^' but a right to the support of buildings erected upon it may here, as there, be acquired by prescription for twenty years, or by grant."" It has been held that the cause of action in such a case is not the damage done to the surface proprietor by improperly working the mines, but the injury to his right to have his lands supported by the contiguous lands and strata of minerals; and that, therefore, when any part of the necessary support is removed, although no actual damage is done, there is a complete cause of action for which the surface-owner may recover prospective damages, and that no new cause of action arises for subsequent damages. Consequently, when the miner settled with the surface-owner for damages caused by a subsidence in consequence of the mining operations of the former, it was held that the latter could not maintain an action for a subsequent subsidence from the same . cause. °^ § 1125. Liability for Eemoving Party-wall. — The owners of a party-wall do not have a reciprocal easement of support from each other's buildings, but either of them may remove his own building without liability for resulting damage to the other, provided he give proper notice to the other of the removal and use reasonable care and caution to protect the wall and remaining building."^ But where a proprietor has an easement of support in a party-wall, as where it has been erected at the joint expense of both of the coterminous land- owners, or where it has been erected by the common vendor of them, — then if one of them disturbs it to the injury of the other, he does so at his peril, and must pay full damages to the other, irrespective of the question of negligence ; and this whether the work is done by him- self, his servants, or by an independent contractor."^ "Rowbotham v. "Wilson, 8 H. L. templated the settlement of future Cas. 348 (affirming Exch. Cham., 8 damages which could not be fore- El. & Bl. 123; 27 L. J. (Q. B.) 61; seen or estimated, affirming Queen's Bench, 6 El. & Bl. "^Clemens v. Speed, 93 Ky. 284; 593; 25 L. J. (Q. B.) 362; 2 Jur. (N. s. c. 19 S. W. Rep. 660. S.) 736); Smith v. Darby, L. R. 7 "^Briggs v. Klosse, 5 Ind. App. Q. B. 716; s. c. 42 L. J. (Q. B.) 140. 129; s. c. 51 N. W. Rep. 286. It is «" Rogers v. Taylor, 2 Hurl. & N. not intended to go into the learning 828; s. c. 27 L. J. (Exch.) 173. of the easement in party-walls, it "> Rogers v. Taylor, supra. Wheth- not being germane to the purposes er possession for twenty years of this work. The following cases has been contentious, and not as of may, however, be examined on the right, is here, as in other cases, a subject: Richards v. Rose, 9 Ex. question for the jury: Ibid. Ch. 218; Eno v. Del Vecchio, 4 Duer "Nicklin v. Williams, 10 Exch. (N. Y.) 53; Webster v. Stevens, 5 259. This ruling is questionable. It Duer (N. Y.) 553; Partridge v. Gil- is contrary to reason and justice, bert, 15 N. Y. 601 ; Brooks v. Curtis^ and the grounds on which it rests 50 N. Y. 639; s. c. 10 Am. Rep. 545 have been overturned in Backhouse Dowling v. Hennings, 20 Md. 179 v. Bonomi, 9 H. L. Cas. 503. Be- Bradheer v. Mayor, 4 Man. & G. 714 sides, the parties could not have con- Stevenson v. Wallace, 68 Va. 77. 1015 1 Thomp. Neg.J care of eeal property. CHAPTER XXXVIII. NEGLIGENCE IN THE RELATION OP LANDLORD AND TENANT. Art. I. Liability as between the Landlord and the Tenant, §§ 1129- 1150. Art. II. Liability in Case of Injuries to Third Persons, §§ 1154- 1173. Art. IIL Other Matters, §§ 1177-1183. Article I. Liability as between the Landlord and the Tenant. Sectioit 1129. A round statement of the rule which exonerates the land- lord, and casts the liability on the tenant. 1130. No implied covenant that premises are in a fit condi- tion — no liability on the part of landlord to the tenant for non-repair. 1131. But landlord may become lia- ble to tenant in case of fraud or concealment. 1132. Landlord must not expose ten- ant to hidden dangers on landlord's own premises. 1133. Rule which exonerates land- lord applied against servants, guests, and others entering under tenant's title. 1134. Illustrative cases where land- lord was held liable to tenant. 1135. Illustrative cases where land- lord was not held liable to tenant. 1136. Further illustrations of the liability of the landlord to his tenant. 1137. In case of a mixed possession as between landlord and ten- ant. 1016 Section 1138. Where different parts of the building are let to different tenants. 1139. Further of the duty and liabil- ity of landlords of tenement houses. 1140. Decisions which exonerate the landlord where portions of the building are let to differ- ent tenants. 1141. Liability of the landlord to the tenant for damages caused by defects in the de- mised premises in case of his breach of his covenant to re- pair. 1142. Liability of the landlord for acts done by him on the de- mised premises during the term. 1143. Effect of special stipulations in the lease. 1144. Relation of principal ten- ant to subtenant. 1145. Liability to repair in case the premises are destroyed or in- jured by fire. 1146. Landlord not liable for "acts of the law." AS BETWEEN LANDLORD AND TENANT. [2d Ed. Section SECTiOJsr 1147. Liability of tenant to land- 1149. Duty to provide fire escapes. lord. 1150. When landlord entitled to no- 1148. Whether landlord liable for tice from tenant that build- acts of independent contract- ing is out of repair. or. § 1129. A Bound Statement of the Rule which Exonerates the Landlord, and Casts the Liability on the Tenant. — It appears then to be the settled law in England and in most American jurisdictions, where not changed by statute, that the tenant, in the absence of an agreement making a different rule, takes the demised premises as he finds them, under the principle of caveat emptor, and that the land- lord is under no duty, either to the tenant or to any one claiming under the tenant, or to a stranger, to keep the demised premises in repair, unless he has assumed or retained this duty by an agreement to that effect with the tenant.^ §1130. No Implied Covenant that Premises* are in a Fit Condi- tion — No Liability on the Part of the Landlord to the Tenant for Non- Repair. — The rule of caveat emptor applies to a contract of letting; the tenant takes the premises as he iinds them, subject to his own risk; and there is no implied covenant on the part of the landlord that they are fit for habitation, or fit for the purposes for which they are rented, or that they are in any particular condition.^ It follows 'Ward V. Fagin, 101 Mo. 669; re- E. D. Smith (N. Y.) 248; Howard v. versing s. c. 28 Mo. App. 116; Mc- Doolittle, 3 Duer (N. Y.) 464; Rob- Carthy v. Fagin, 42 Mo. App. 619; bins v. Mount, 4 Robt. (N. Y.) 553; Little V. McAdaras, 38 Mo. App. 187; Flynn v. Hatton, 43 How. Pr. (N. s. c. on former appeal, 29 Mo. App. Y.) 333; Sutton v. Temple, 12 Mee. 332; Wehrman v. Priest, 12 Mo. App. & W. 52; Hart v. Windsor, 12 Mee. 577; McKeon v. Cutter, 156 Mass. & W. 68; Chappell v. Gregory, 34 296; s. c. 31 N. B. Rep. 389; Bronner Beav. 250; Carstairs v. Taylor, L. R. v. Walter, 15 App. Div. (N. Y.) 295; 6 Exch. 217; Dutton v. Gerrish, 9 s. c. 44 N. Y. Supp. 583; Reissman Gush. (Mass.) 89; Foster v. Peyser, V. Jacobwitz, 22 Misc. (N. Y.) 551; 9 Gush. 242; Royce v. Guggenheim, s. c. 49 N. Y. Supp. 1006. 106 Mass. 201; Loupe v. Wood, 51 'Fisher v. Lightall, 4 Mackey (D. Gal. 586; Elliott v. Aiken, 45 N. H. G.) 82; s. c. 54 Am. Rep. 258; Blake 30; Scott v. Simons, 54 N. H. 430. V. Ranous, 25 111. App. 486; Fried- The authority of Smith v. Marrable, man v. Schwabacher, 64 111. App. 11 Mee. & W. 5, and other cases hav- 433; s. c. 1 Chic. L. J. Wkly. 599; ing a tendency to establish the con- Lucas V. Coulter, 104 Ind. 81 ; Woods trary rule, is very much shaken, if V. Naumkeag Steam Cotton Co., 134 not wholly overruled, in this coun- Mass. 357; s. c. 44 Am. Rep. 262, try. See Scott v. Simons, and Dut- note; Oriental Invest. Co. v. Sline, ton v. Gerrish, supra. But see Wil- 17 Tex. Civ. App. 692; s. c. 41 S. W. son v. Finch Hatton, 2 Exch. Div. Rep. 130; Jaffe v. Harteau, 56 N. Y. 336, which is, however, explainable 398; O'Brien v. Capwell, 59 Barb, on the ground of fraudulent conceal- (N. Y.) 497; Cleves v. Willoughby, ment on the part of the lessor. If 7 Hill (N. Y.) 83; Post v. Vetter, 2 the landlord, in making repairs, neg- 1017 1 Thomp. Neg.] care of eeal property. from this doctrine that a landlord ia not liable for damages resulting to his tenant from an omission to repair the demised premises, unless he was expressly bound to repair by the terms of the contract of let- ting.^ § 1131, But landlord may Become liable to Tenant in Case of Praud or Concealment. — ^But the landlord may become liable to the tenant, and even to the employes of the tenant — and, upon principle, to the guests of the tenant, — for concealing or failing to disclose a source of danger not discoverable by the tenant, but known to the landlord, the dangerous character of which is either known to the landlord, or evident upon common experience.* Thus, it has been lects to use ordinary skill, and there- by causes a personal injury to the tenant, he is liable therefor, al- though his undertaking to make the repairs was gratuitous and by the tenant's solicitation : Gill v. Middle- ton, 105 Mass. 477. ° Bronner v. Walter, 15 App. Div. (N. Y.) 295; s. c. 44 N. Y. Supp. 583; Mayer v. Laux, 18 Misc. (N. Y.) 671; s. c. 43 N. Y. Supp. 743; Buckley v. Cunningham, 103 Ala. 449; s. c. 15 South. Rep. 826; Kahn v. Love, 3 Ore. 206; Mumford v. Brown, 6 Cow. (N. Y.) 475; Howard v. Doolittle, 3 Duer 364; Brewster v. De Frem- ery, 33 Cal. 341; Sherwood v. Sea- man, 2 Bosw. (N. Y.) 127; Doupe V. Genin, 45 N. Y. 119; s. c. 37 How. Pr. (N. Y.) 5; 1 Sweeny 25; Joyce v. De Giverville, 2 Mo. App. 596; Rob- inson V. Kilvert, 58 L. J. Ch. 392; s. c. 41 Ch. D. 88; 61 L. T. Rep. (N. S.) 60; 17 Wash. L. Rep. 697; 40 Alb. L. J. 312. Where a landlord let the ground floor of premises for storing paper, and occupied the cel- lar for manufacturing purposes, which required the use of heat, and the degree of heat used injured a certain kind of brown paper stored by the tenant on the leased floor, though it appeared that the same heat would not injure paper gener- ally, and the landlord was not aware at the time of the lease that any particular kind of paper was to be stored there, — it was held that an action could not be maintained by the tenant, either on the ground of nuisance, or of the breach of an im- plied covenant for quiet enjoyment: Robinson v. Kilvert. 41 Ch. D. 88; s. c. 58 L. J. Ch. 392; 61 L. T. Rep. (N. S.) 60; 40 Alb. L. J. (N. Y.) 1018 312; 17 Wash. L. Rep. 697. The cases of Johnson v. Dixon, 1 Daly (N. Y.) 178, and Eagle v. Swayze, 2 Daly (N. Y.) 140, to the contrary, must be regarded as wholly without the support of authority. The correct position was set out in the dissent- ing opinion of Hilton, J., in Johnson v. Dixon. A fortiori, the lessor will not be liable for damages from non- repair where the lessee, by the terms of the lease, assumes all risks: Fera V. Child, 115 Mass. 32. Where by statute the duty of keeping premises in repair devolves upon the landlord, this does not extend to patent de- fects known alike to both ■ parties at the time the premises were of- fered for rent. Driver v. Maxwell, 56 Ga. 11. Where a landlord let a house for a year, agreeing to keep it in repair, and after six months' occupancy the cellar stairs broke down from the tenant's weight, it was held that the landlord was not liable for the tenant's injuries, he having no knowledge of the weak- ness of the stairs, and not having been requested to repair them: Spellman v. Brannigan, 36 Hun (N. Y.) 174. 'Cutter V. Hamlin, 147 Mass. 471; s. c. 1 L. R. A. 429; 18 N. E. Rep. 397; Anderson v. Hayes, 101 Wis. 538; s. c. 5 Am. Neg. Rep. 504; 77 N. W. Rep. 891; McConnell v. Lemley, 49 La. An. 1433; s. c. 34 L. R. A. 609. See also Wilcox v. Zane, 167 Mass. 302; Coke v. Gutkese, 80 Ky. 598; s. c. 44 Am. Rep. 499. Contrary to the text, it has been held that a landlord is not bound to disclose de- fects in the plumbing of a building, even if they are known to him; though it is conceded that defects AS BETWEEN LANDLORD AND TENANT. [2d Ed, held that a landlord is liable for personal injuries to the servants of his tenant^ caused by concealed defects in an elevator in use on the demised premises, of which the landlord was aware, but of which he gave no notice to the tenant.^ But the doctrine of the preceding paragraph implies that mere non-disclosure on the part of the land- lord of hidden defects or secret conditions, will not be sufficient to charge him ; that something more must appear ; that it must be shown that he knew of such hidden defects or secret conditions, and that the tenant did not know of them, or would not have discovered them by the exercise of an ordinary inspection. The law does not cast any duty of disclosure upon the landlord of defects of which he himself is ig- norant, or which he would not have discovered by the exercise of ordi- nary or reasonable care.* § 1132. Landlord must Not Expose Tenant to Hidden Dangers on landlord's Own Premises. — The landlord has no right to expose his lessee, or persons rightfully resorting to the leased prem^ises, to occult dangers on his own premises^ over which it is necessary to pass in order to reach the leased property.' When therefore a landlord leased premises to a tenant which were so situated that the tenant must necessarily pass over other land of the landlord to get to his premises and to get away from them, — there was an implied duty on the part of the landlord not to subject the tenant, or the members of his family, to extraordinary dangers by leaving any dangerous substance in the vicinity of this way of exit, — such as a quantity of dynamite which which the tenant could not discover not make the misrepresentation of the landlord must disclose, such as the landlord at the time of the let- any infection of the premises with ting, as to the condition of the smallpox, and the like: Blake v. house, a ground of action for dam- Ranous, 25 111. App. 486. The de- ages, where the defect proceeded cision proceeds upon the poor con- from a source of which the tenant ception that conscious concealment had knowledge at the time; the on the part of the landlord is not tenant can not have damages from fraud, where the other party to the the landlord for concealing from transaction might possibly have dis- him what he already knew: McDon- covered the fact, instead of relying aid v. Flamme, 13 Abb. N. Cas. (N. on the honesty of the landlord to Y.) 456. disclose it to him, and where discov- ° Anderson v. Hayes, 101 Wis. 538 ; ery could have been made by the s. c. 5 Am. Neg. Rep. 504; 77 N. W. exercise of due care and diligence. Rep. 891; McConnell v. Lemley, 48 Thus, where an employe of a tenant La. An. 1433; s. c. 34 L. R. A. 609, was injured by an explosion of gas, and long note; also Wilcox v. Zane, caused by defective plumbing done 167 Mass. 302. by a former tenant, who employed " Schmalzried v. White, 97 Tenn. a competent plumber to do the work, 36; s. c. 32 L. R. A. 782; 36 S. W. the landlord was not liable, the de- Rep. 393. fects not being apparent, and he ' Totten v. Phlpps, 52 N. Y. 354; having no knowledge of them: Metz- Elliott v. Pray, 10 Allen (Mass.) ger V. Schultz, 16 Ind. App. 454. 378. On the other hand, the tenant can 1019 1 Thomp. Neg.J cake oj? keal peoperty. might attract the curiosity of children to their destruction ; and for an injury so occasioned he is answerable in damages.' § 1133. Rule which Exonerates Landlord Applied against Serv- ants, Guests, and Others Entering under Tenant's Title. — The general rule, above stated, which exempts the landlord from liability to his tenant for the condition of the premises, extends to the servants of the tenant, to his guests, and to others entering under Ms title: they as- sume a like risk to that which he assumes.^ § 1134. Illustrative Cases where the landlord was held liable to his Tenant. — The landlord was held liable to his tenant, or to the privy of his tenant, in damages for the unsafe condition of the prem- ises, in the following eases: — Where, at the time of the letting, the landlord knew that the premises were unsafe and dangerous, and con- cealed the same, or the circumstances were such that he might, by the exercise of reasonable care and diligence, have discovered that fact, and the tenant did not know it, although the tenant examined the premises, the tenant having exercised reasonable care and prudence for his own protection against the effects of the wrongful act of the landlord;^* where the landlord made repairs upon a grating over the vault in the sidewalk, during the term, and a third person was injured in consequence of the improper manner in which the repairs had been made.^^ Where a landlord warranted to his tenant the safety and sufSciency of a ceiling, it was held that he was liable, not on the war- ranty itself, but on the ground of negligence, for injuries to a child of his tenant from the fall of the ceiling ; since, although the child could not maintain an action upon the warranty, it served to fix the imputa- tion of negligence in regard to the ceiling, upon the landlord. The liability was deemed to rest on the same principle as that of a manu- facturer, who sells an article with a defect, which renders the article in itself eminently dangerous to any one using it for the purpose for which it was intended. ^^ § 1135. Illustrative Cases where landlord was Not held Liable to Tenant. — Under the operation of this rule, the improper construction of a building, or of a steam heating apparatus therein, does not give the » Powers V. Harlow, 53 Mich. 507; s. c. 34 L. R. A. 822; 33 S. W. Rep. s. c. 51 Am. Rep. 154. 914; aff'd on rehearing in 34 S. W. « O'Brien v. Capwell, 59 Barb. (N. Rep. 420. Y.) 497; Nelson v. Liverpool Brew- " Canandaigua v. Foster, 81 Hun ery Co., 2 C. P. Div. 311; Robbins (N. Y.) 147; s. c. 62 N. Y. St. Rep. V. Jones, 15 C. B. (N. S.) 221, 240; 639; 30 N. Y. Supp. 686. Burdick v. Cheadle, 26 Ohio St. 393. '" Moore v, Steljes, 69 Fed. Rep. "Hines v. Wilcox, 96 Tenn. 148; 518. 1020 AS BETWEEN LANDLORD AND TENANT. [2d Ed. tenant any right of action against the landlord grounded on negli- gence, for damages caused thereby, when the condition of the premises has not been changed by the act of the landlord during the tenancy. ^^ A member of the family of the tenant can not recover damages from the landlord resulting from a defect in the demised premises, which existed and could have been discovered by the exercise of a reasonably careful examination at the time of the letting.^* A landlord who rents rooms to a tenant in a tenement house, is not liable to him for an injury to his goods, caused by the leaking of water pipes used solely to supply water to the rooms of such tenant ;^^ though, if it were a common water pipe, used to supply water to several tenants, the rule might be different;" nor is a landlord liable to his tenant for an in- jury to the goods of the tenant caused by the freezing of a water pipe because the landlord failed to shut off the water from the pipes, where the tenant had an equal authority and privilege with the landlord to shut it oif.^' So, where, at the time of the letting, the cellar was so filled with water as to be unfit for use, and the outside walls were crumbling away, it was held that the tenant could not recover damages caused by the falling of the walls, in the absence of any express war- ranty in the lease or any actual fraud or misrepresentation, although the lessor did not inform him of the unsafe condition of the building, as the defects were patent to a most casual observer.^' So, where, under the immediate supervision of a tenant who had been occupying a store, the landlord repaired the flooring, the condition of the ten- ancy being that no repairs should be required of the landlord — it was held that if the flooring gave way under a heavy loading, the tenant could not set off the damages against the rent.^' So, the landlord was not liable to his tenant for an injury sustained by the tenant from a defect in a stairway, caused by a previous tenant, the landlord hav- ing no knowledge of the defect and giving no warranty, and the tenant having had an opportunity to examine the stairway before hiring the premises.^" So, it is the duty of the owner of a lumber shed, stand- ing on leased ground, and not the duty of the owner of the land, to keep in a reasonably safe condition a driveway leading from the shed to the carriage road, where the driveway is an appurtenance ex- "Railton v. Taylor, 20 R. I. 279; "Buckley v. Cunningham, 103 Ala. s. c. 39 L. R. A. 246; 3 Chic. L. J. 449; s. c. 15 South. Rep. 826. Wkly. 26; 38 Atl. Rep. 980. "Davidson v. Fischer, 11 Colo. "Moynihan v. AUyn, 162 Mass. 583; s. c. 7 Am. St. Rep. 267; 2 Den- 270; s. c. 38 N. E. Rep. 497; 27 Chic, ver Leg. News 65; 17 Wash. L. Rep. Leg. News 120. 252; 19 Pac. Rep. 652. '= McKeon v. Cutter, 156 Mass. " Bosworth v. Thomas, 67 Ga. 640. 296; s. c. 31 N. E. Rep. 389. ^"Bowe v. Hunking, 135 Mass. 380; ^'Post, § 1138. s. c. 46 Am. Rep. 471. 1021 1 Thomp. Neg.J care of real property. clusively belonging to the shed and the land on which it stands. ^^ So, a landlord is not liable to a tenant for an injury to his goods, caused by the freezing of a water pipe, because the landlord failed to cut off the water from the pipe, where the tenant has equal authority and privilege with the landlord to shut it ofE.^^ § 1136. Further Illustrations of the liability of the Landlord to his Tenant. — If by law a particular duty of repair devolves upon the landlord, — e. g., by the city charter of Brooklyn, to keep the fire-escape of tenement-houses in repair for the benefit of occupants, — he is bound to do this ; and in his default, this duty does not fall upon the tenant. But if the tenant or other person chooses to use the fire- escape for any other than its legitimate purpose, — as, for a balcony, — the landlord will not be liable for an injury resulting from its being out of repair. ^^ Where the owner of premises, knowing them to be infected with the small-pox, leased them to a tenant, who, ignorant of their condition, occupied the premises, whereby he was attacked by the disease, the landlord was held liable for this fraudulent concealment.^* For the same reason, where a landlord, having discontinued the use of gas upon a portion of his premises, removed the fixtures, leaving the pipes open, and afterwards an explosion took place upon the premises, then in the possession of a tenant, caused by a tenant of another por- tion of the building introducing gas for his convenience, and by the landlord's permission, — the latter was held responsible to his tenant for the ensuing damages, although the negligence of a third party con- curred in the accident.^^ Similarly, the landlord is responsible to a tenant for damages arising from the faulty construction and use of a sewer on another part of the premises by him, although the sewer was made previous to the beginning of the tenancy.^® A landlord can not perform operations upon his property to the detriment of a portion which he has previously leased.^^ The fact that the landlord's janitor, '^^ Abbott V. Jackson, 84 Me. 449 ; lessor, because of tbat fact, in the s. c. 24 Atl. Rep. 900. absence of any covenant on the part ^^ Buckley v. Cunningham, 103 Ala. of the lessor: Ratkowski v. Masol- 449; s. c. 15 South. Rep. 826. That owski, 57 111. App. 525. the tenant of a portion of a building ^ McAlpin v. Powell, 70 N. Y. 126 ; who had agreed to preserve the s. c. 55 How. Pr. (N. Y.) 163 (re- premises- in good condition and versing 1 Abb. N. C. (N. Y.) 427). make the requisite repairs, could not ^ Minor v. Sharon, 112 Mass. 477. set off against the rent damage to ^'Kimmell v. Burfeind, 2 Daly (N. his goods, caused by the faulty con- Y.) 155. struction of a sewer connection ^Alston v. Grant, 3 El. & Bl. 128; which the landlord refused to rem- Scott v. Simons, 54 N. H. 426. edy: Plummer v. Shulmyer, 12 Lane. ^Glickauf v. Maurer, 75 111. 289; L. Rev. (Pa.) 217. Lessee of store Center v. Treadwell, 39 Ga. 210; not finished at the time of the let- Priest v. Nichols, 116 Mass. 401; ting, no right of action against the Marshall v. Cohen, 44 Ga. 489. 1022 AS BETWEEN LANDLORD AND TENANT. [2(1 Ed. whose duty it was to see that the halls of a building leased to several parties were kept clean and the outer door closed, was hired by the occupants of rooms in the building to clean the same and make their fires, superadds nothing to the landlord's liability for injuries to other tenants by the negligence of such servant, unless it was stipulated in the renting of the various portions of the building that the tenants should employ such person as the landlord should select for the pur- pose of caring for their several apartments. ^^ § 1137. In the Case of a Mixed Possession as between Landlord and Tenant.^ — In the case of a mixed possession of demised premises as between the landlord and the tenant, — for example, where the land- lord lets to the tenant a part of a building, or a part of an enclosed field, — in the absence of special provisions in the contract of letting, or of statutes or special customs governing such cases, their possession will be substantially that of coterminous owners, though this state- ment may be modified in particular cases by special circumstances. Neither one will have the right so to use the portion of the premises in his possession as to inflict damage upon the other. For example, where a landlord leased a room in a building which was occupied by him as a morocco factory, he was liable for an injury to his tenant caused by the dripping of water from wet hair in an upper story, upon the tenant's machines, through the negligence of the landlord or his servants.^'' So, the owner of a building who knows that the steps leading to a storehouse therein rented by him, and also to other store- houses occupied by himself, are defective and dangerous, and who has bad sufficient opportunity to repair the same, is liable for an injury to one caused by such defective and dangerous condition, while using the steps in the due course of his business with the tenant, under § 2284 Ga. Code, making it the duty of the landlord to keep rented premises in repair.^" So, where a tenant leased a part of a building for a store, and the landlord was in possession of the roof, and maintained there- on a water tank, which did not have a ball-cock attached, as is cus- tomary, usual, and necessary, whereby the water overflowed the tank and entered upon the premises of the tenant, and damaged his goods, the landlord was liable. ^^ So, the tenant of a part of a building, the other part of which was occupied by the landlord, in both parts of which there were chattels belonging to the landlord, — was liable for "Robbins v. Mount, 4 Robt. 553. '"Archer v. Blalock, 97 Ga. 719; a This section is cited in §§ 1140, s. c. 25 S. E. Rep. 391. 1156, 1165, 1172. '' Citron v. Bayley, 36 App. Div. ="Hysore v. Quigley, 9 Houst. (N. Y.) 130; s. c. 55 N. Y. Supp. 382. (Del.) 348. 1023 1 Thomp. Neg.J care of real property. the accidental destruction of the landlord's part of the building, and its contents, by a fire caused by the negligence of the tenant in heating his own part.^^ Moreover, one who becomes the tenant of a part of a building, assumes all risks arising from the proper and ordinary use of the building by his landlord. Hence, where one rented a portion of a planing mill, with the right of ingress and egress, and was injured by being struck by timbers thrown from the upper story, in the ordi- nary course of the business of the landlord, there being no negligence on the part of the latter, there was no right to recover damages.^^ So also, if a landlord retains general control and possession of a closet and sink on the second floor of his building, which is supplied by a waste water pipe sufficient to carry off all the water capable of being discharged from the faucet, he will not become liable to his tenant on the first floor for an injury to the goods of such tenant, caused by an overflow of water, due to the misconduct of some unknown person in leaving the faucet open and the outlet closed up with a rag.^* So, where a landlord occupied the upper part of his building and let the lower part to a tenant, he was not liable for damage to the goods of the tenant caused by a leaMng of the roof, which leaking was caused by the backing up of water in an unusual rain storm, because it could not be carried ofE fast enough by means of a box sunk in the roof, to the pipe leading to the cellar, there being no negligence either in the construction or maintenance of the box and pipe.^° ^' Lothrop v. Thayer, 138 Mass. wick Grocery Co. v. Spencer, 97 Ga. 466; s. c. 52 Am. Rep. 286. But it 764; s. c. 25 S. E. Rep. 764. One was held that he was not liable for court has carried the immunity of the destruction of his own part, un- the landlord so far as to hold that, less he was recklessly negligent; in the absence of an express cov- and that, as to the chattels of the enant to repair, the landlord is not landlord in his own part, his liabil- liable to his tenant for the land- ity depended upon the fact of the lord's negligence in failing to shore bailment: Lothrop v. Thayer, supra, up a wall of his building to prevent ==' Allen V. Johnson, 76 Mich. 31; it from falling into the excavation s. c. 4 L. R. A. 734; 42 N. W. Rep. made by another builder, although 1075. the tenant is merely the occupant ^* Rosefield v. Newman, 59 Minn, of a single room, and has no general 156; s. c. 60 N. W. Rep. 1085. right to repair the building and no "' Tennant v. Hall, 27 N. B. 499. right to take possession of the wall So, in Georgia, where. It seems, the for the purpose of shoring it up, — a landlord, and not the tenant, is pre- decision which is destitute of sense sumptively bound to repair, a land- and careless of justice: Ward v. lord is not liable for damages to the Fagin, 101 Mo. 669; s. c. 10 L. R. A. goods of his tenant resulting from 147; 14 S. W. Rep. 738. But it is the unroofing of a building, which gratifying to know that there are he warranted to be in a tenantable courts which regard the landlord as condition, by a violent and unusual being under some liability to ten- storm, or for the further damages ants and to strangers, where he has occasioned by a second rainstorm, a mixed possession with the tenant unless in the meantime he has had of his building. In such a case, it sufficient time and opportunity to has been sensibly and justly held make the needed repairs: Bruns- that the tenant is not hound to maJce 1024 AS BETWEEN LANDLOED AND TENANT. [2d Ed. § 1138. Where Different Parts of the Building are Let to Different Tenants.^ — The weight of authority, and the only conclusion com- patible with common sense, is that where different parts of the same building, or of the same grounds, are let to diiierent tenants, and the landlord retains possession of a portion, the proper reparation of which is necessary to the enjoyment by the different tenants of their different holdings, such as a common hallway, a common stairway, or a common roof, the landlord stands under an obligation to keep such portion in suitable repair, and is liable in damages to any one of Ms tenants injured by the negligence of the landlord in allowing it to get out of repair. The landlord was held to this liability in the follow- ing cases: — Where he permitted a stairway carpet with holes in it to remain on the stairs of a tenement house, having notice of its condi- tion, and a tenant caught her foot in one of the holes and fell;^" where the rubber facing on the steps in the common stairway became insecure, in consequence of which a tenant sustained a fall, such con- dition having existed for a week, during which time the landlord vis- ited the house every day, collecting the rent and attending to the re- pairing, and the janitress employed by him, whose duty it was to sweep the stairs, passed over the defective portion every day;^^ where a landlord let the tenements in a building to different tenants, with a right of way in common over the piazza in the rear, and failed to keep the piazza clear of ice, which formed from water falling from a defec- repairs of a general character; but which the landlord refuses to rem- that If the landlord fails to make edy: Plummer v. Schulmyer (Pa. C. them, and the building falls, he is P.), 12 Lane. L. Rev. 217. liable to the tenant, even though the An English court has held that an tenant, induced by the landlord's owner of flats who introduces water promise to repair, and to pay for into a cistern on the fourth floor is damages, remains, knowing the not liable, in the absence of negli- premises to be unsafe: Bold v. gence or default on his part, for O'Brien, 12 Daly (N. Y.) 160. Land- damages to the goods of a tenant of lord under no obligation to observe a lower floor, occasioned by the es- care and attention in managing the cape of water from the cistern, part of the building under his con- especially where the tenant of the trol, so as to avoid needless expos- lower floor consented to the use of ure of his tenants and their lawful the cistern by taking his own sup- visitors to the risk of accident, in ply of water therefrom: Blake v. the conception of the Oourt of Ap- Woolf [1898], 2 Q. B. 426; s. c. 67 peals of New York: Hilsenbeck v. L. J. Q. B. (N. S.) 813. This doc- Guhring, 131 N. Y. 674; reversing trine is necessarily a repudiation of s. c. 59 Hun (N. Y.) 621 mem.; s. c. the doctrine of the House of Lords, 36 N. Y. St. Rep. 452; 12 N. Y. Supp. in Rylancls v. Fletcher, ante, § 695. 792. That a tenant of a portion of a This section is cited in §§ 1135, a building who has agreed to pre- 1172. serve the premises in good condition ™ Pell v. Reinhart, 127 N. Y. 381; and to make the requisite repairs, s. c. 12 L. R. A. 843; 38 N. Y. St. can not set off against the rent, dam- Rep. 913 ; 27 N. E. Rep. 1077. age to his goods because of a faulty " Nadel v. Fichten, 34 App. Div. construction of a sewer connection (N. Y.) 188; s. c. 55 N. Y. Supp. 551. VOL. 1 THOJIP. NEG. — 65 lU/5 1 Thomp. Neg.] cake of real property. tive pipe on the roof, to the injury of a tenant.'^ In such a case the liability of the landlord extends not only to his tenants, but also to their guests, and to any one lawfully upon the premises and free from contributory negligence; and if he fails to furnish sufficient artificial light, or otherwise to render a stairway safe, in consequence of which a tenant falls and is injured, he will be liable in the absence of con- tributory negligence.^ ° § 1139. Further of the Duty and Liability of landlords of Tene- ment Houses. — So, where the roof of a tenement house is reserved by the landlord for the common use of his tenants, for the uses to which the yard of a dwelling-house is commonly put, such as hanging out clothes to dry, — it is his duty to keep it in a reasonably safe condition for the uses intended; and he owes to the boarder of a tenant, who, at the tenant's request, goes upon the roof to do work for the tenant gratuitously, which the tenant had a right to do there, the same duty in this respect which he owes to the tenant himself.*" So, the fall of plaster from the ceiling of a hallway in a tenement house, used in common by the various tenants, renders the landlord liable for in- juries to an occupant of the building who is struck thereby, if the landlord had notice that there was danger of its falling.*^ So, the lessor of a building occupied by several tenants, is bound to exercise reasonable or ordinary care to the end of keeping in a good state of reparation whatever water pipes are used in common by two or more of such tenants.*^ In like manner, it has been well held that the duty '^'Watkins v. Goodall, 138 Mass. as mucli caution as she could exer- 533. cise. On a sudden turn in the stair- '" Marwedel v. Cook, 154 Mass. way she tripped, and fell, and was 235; s. c. 28 N. B. Rep. 140; Idel v. injured. The court held that the Mitchell, 5 App. Div. 268; s. c. 39 questions whether the defendant, N. Y. Supp. 1. Landlord liable to the landlord, was negligent in not tenant not guilty of contributory lighting the stairway, or whether negligence, for injuries caused by the plaintiff exercised due care un- failure of landlord to keep in rea- der the circumstances, were for the sonably safe condition the stairs jury: Marwedel v. Cook, 154 Mass. leading to a storehouse built for 235. See also Lumley v. Backus use of his tenants: Feinstein v. Ja- Man. Co., 73 Fed. Rep. 767; s. c. 38 cobs, 15 Misc. (N. Y.) 474; s. c. 37 U. S. App. 480; Idel v. Mitchell, 5 N. Y. Supp. 345; 72 N. Y. St. Rep. App. Div. (N. Y.) 268; s. c. 39 N. 698; Harkin v. Crumble, 14 Misc. Y. Supp. 1. (N. Y.) 439; s. c. 70 N. Y. St. Rep. '"Wilcox v. Zane, 167 Mass. 302. 731; 35 N. Y. Supp. 1027. In a case "Bollard v. Roberts, 130 N. Y. in Massachusetts it appeared that 269; s. c. 14 L. R. A. 238; 41 N. Y. the plaintiff, at 5:30 p. m., after St. Rep. 253; 29 N. E. Rep. 104. The making a call upon business on a decision ought to have added, "or if tenant of an office iuilding, started he might have discovered the de- to descend the staircase, the elevator feet by the exercise of reasonable having stopped for the day. The or ordinary care." gas was not lighted, and, as she de- *^ Fitch v. Armour, 14 N. Y. Supp. scended, the staircase grew darker, 319; s. c. 39 N. Y. St. Rep. 246. but she kept on feeling her way with 1026 AS BETWEEN LANDLORD AND TENANT. [2d Ed. of a landlord to keep a platform used in common by the tenants of different parts of the same building in a reasonably safe condition for use in connection with the tenement, arises by implication out of the contract of hire ; and that such duty extends to one who uses the plat- form by the express invitation of a tenant, as well as to the tenant himself.*^ § 1140. Decisions whicli Exonerate the Landlord where Portions of the Building are Let to Different Tenants. — We have already had occasion to note a decision of the Supreme Court of Missouri, to the effect that the rule which exonerates the landlord for failing to keep his building in repair, is the same where a building is let to different tenants, as where it is let to one tenant.** The Supreme Court of Wisconsin have adopted the same wretched doctrine, by holding that, in the absence of any secret defects, deceit, warranty, or agreement on the part of the landlord to repair, he is not liable to a tenant or to a subtenant for an injury caused by the premises getting out of repair during the term, unless it be by reason of his own wrongful act or failure to perform a known duty to several tenants, even though the want of repair is in a passageway used by them in common.*^ An- other court has held that if a tenant in the upper part of a building meets with an accident caused by a defective railing on a common staircase, and by the accumulation of ice and snow on the staircase, — the landlord will not be liable, in the absence of an undertaking on his part, by contract, to keep the staircase in repair and free from ice and snow.*" Another court has held, contrary to many decisions col- lected in the preceding paragraph, that the duty to furnish light in any common halls and stairways of a rented building is not included in the duty of the landlord to make such halls and stairways reason- ably fit for passage, in the absence of any contract so to do.*^ These "Coupe V. Piatt, 172 Mass. 458; Court in Illinois has likewise held s. c. 52 N. B. Rep. 526. That the that, in the absence of contract or of owner of a tenement house control- special circumstances, it is not the ling it and renting rooms to tenants duty of a landlord to keep an out- from month to month, is liable for side stairway safe for tenants, where injuries to the infant child of a ten- there are several tenants in the ant, by a dangerous and defective same building: Piatt v. Farney, 16 gutter falling upon the child, in a 111. App. 216. The decision is both portion of the premises where the absurd and unjust; since none of child had the right to be: Burns v. the several tenants would of him- Solomon, 3 Ohio N. P. 185; s. c. 1 self have the right to repair a com- Ohio L. D. 232. mon outside stairway. "Ante, § 1137, note, referring to " Gleason v. Boehm, 58 N. J. L. Ward V. Fagin, 101 Mo. 669. 475; s. c. 32 L. R. A. 645; 43 Cent. "Cole V. McKey, 66 Wis. 500; s. c. L. J. 138; 34 Atl. Rep. 886. See 57 Am. Rep. 293. also Hilsenbeck v. Guhring, 131 N. '"Purcell V. English, 86 Ind. 34; Y. 674; Eyer v. Jordan, 111 Mo. 424 s. c. 44 Am. Rep. 255. An Appellate (defective stairway). 1027 1 Thomp. Neg.J care of eeal property. decisions have not a trace of reason or justice to support them. Some- what outside of the line of the above cases, we find a holding to the effect that the owner of a building which is leased to several tenants is liable for personal injuries received by a third party, caused by the falling of a portion of the building, in case such portion is not in- cluded in the leases of any of his tenants, — such third party being lawfully there.** § 1141. Liability of the landlord to the Tenant for Damages Caused by Defects in the Demised Premises in the Case of His Breach of His Covenant to Repair. — Therefore, where the landlord enters into a covenant with his tenant, by which the landlord undertakes to keep the demised premises in repair, and the landlord breaks this covenant, and in consequence of his breach of it the tenant suffers damages, the courts do not give the tenant full reparation for the damage suffered, but wriggle out of it by means of such sophistry as the following: "Where the sole relation between two parties is contractual in. its nature, a breach of the contract does not usually create a liability as for negligence. In such a case, the liability of one of the parties to the other because 'of negligence is based either on the breach of some duty which is implied as the result of entering into the contractual relation, or from the improper manner of doing some act which the contract provided for; but the mere violation of a contract, where there is no general duty, is not the subject of an action of tort." The conclusion of the court using this language was that the breach by a *° O'Connor v. Andrews, 81 Tex. mat's condition than the landlord 28; s. c. 16 S. W. Rep. 628. On the had, and did not think It danger- ground that the landlord was not ous: McCabe v. Kastens, 11 Misc. shown to have been negligent— not (N. Y.) 272; 65 N. Y. St. Rep. 430; on the ground that he was not un- 32 N. Y. Supp. 249; aff'g 10 Misc. der the duty of exercising care — it (N. Y.) 42; s. c. 63 N. Y. St. Rep. was held in the same State that, 180; 30 N. Y. Supp. 832. Another where a landlord rented a building such court in New York has held to several different families, retain- that the landlord is under no duty ing control of the yard, and looking to keep the trapdoor in the balcony after the structures therein, he was of a fire escape in proper condition not guilty of negligence in failing to prevent injury, as to a tenant, to make a critical examination of who, with the landlord's permission, the clothesline pole, which had been and in common with another tenant, erected for a period of only about uses the balcony as a place for dry- halt the ordinary life of such a pole, ing clothes, where it is not a part where he did not know of any de- of any common passageway to the feet therein: Lenz V. Aldrich, 6 App. ground: Mayer v. Laux, 18 Misc. Div. 178; s. c. 39 N. Y. Supp. 1022. (N. Y.) 671; s. c. 43 N. Y. Supp. A subordinate court in New York 743. The decision does not seem to has held that a landlord is not lia- be tenable, because the fire escape in ble for an injury to a tenant caused a tenement building is intended as by her tripping over a mat in the a means of exit for all the tenants hallway of defendant's apartment in case of fire, and all of them have house, where the tenant had a bet- a common right thereon as much as ter opportunity for knowing the in a hall or stairway. 1028 AS BETWEEN LANDLORD AND TENANT. [2d Ed. landlord of his covenant to keep the premises in repair, does not ren- der him liable for damages caused to the tenant by his failure to per- form his covenant, because the tenant is not bound to remain on the premises in an unsafe condition, but may quit them and then recover damciges from the landlord for the injuries sustained, through the landlord's breach of his covenant. The tenant may move out, and then defend an action for rent, or he may repair the premises and re- cover the cost of repairing them from the landlord ; and the measure of damages for the breach of the contract to repair on the part of the landlord, is the expense of making the repairs, — the work which the landlord agreed to do, but did not do.*" Other courts have proceeded upon the doctrine above stated to such an extent as to create the im- pression that it is the law. Thus, another court in New York has held that a lessor is not liable for personal injuries sustained by the lessee's wife in falling into a cistern, the cover of which had become decayed during a prior term, although he promised at the time of the renewal of the lease to repair it.^" Another court has held substan- tially to the same effect;"^ and a Canadian court has probably ex- pressed the prevailing rule of law by holding that an express contract between the- landlord and the tenant, that the landlord shall keep the demised premises in repair, does not render the landlord liable for an injury to the tenant, arising from his failure to keep them in repair, although the tenant has notified him that they are out of repair, but that the tenant in such a case should make the repairs at the expense of the landlord.^^ But where, by a covenant of the lease, the landlord "Schick V. Fleischhauer, 26 App. Rankin, 47 N. J. Law 18; s. c. 54 Div. (N. Y.) 210; s. c. 49 N. Y. Am. Rep. 109. Supp. 962 (distinguishing White v. °^ Brown v. Toronto General Hos- Sprague, 9 N. Y. St. Rep. 220; Ed- pital, 23 Out. Rep. 599. In White v. wards v. New York &c. R. Co., 98 Sprague, 9 N. Y. St. Rep. 220, the N. Y. 245; s. c. 50 Am. Rep. 659. plaintiff, who recovered damages for It is to be noted that the court injuries from falling plaster, was speaks cheerfully of "an action of the janitress, and the case is sus- tort," when there is no such thing tainable on the ground of the dere- under the New York Code of Civil liction of her employer's duty Procedure as an action of tort, but toward her, his servant. In Ed- all civil actions, whether for a tort wards v. New York &c. R. Co., 98 N. or upon a contract, and whether in Y. 245; s. c. 50 Am. Rep. 659, the law or in equity, are reduced to one plaintiff, who was injured by the form of action: Code Civil Proc. (N. fall of a ialcony which was improp- Y.), § 3339. erly overloaded with spectators, was ■"■ Van Tassel v. Read, 36 App. Div. not allowed to recover, for the rea- (N. Y.) 529; s. c. 55 N. Y. Supp. son that the balcony was intended 502; 5 Am. Neg. Rep. 428. See also for a special purpose, and there was Tuttle v. George H. Gilbert Man. no proof that it was not sufficient Co., 145 Mass. 169. for that purpose. The court inti- " Clyne v. Helmes, 61 N. J. L. mated that if the landlord agrees to 358; s. c. 4 Am. Neg. Rep. 180; 3 repair he is liable to one injured Chic. L. J. Wkly. 150; 39 Atl. Rep. from his failure to do so; but the 767; distinguishing Ingwersen v. court expressly say that the lia- 1029 1 Thomp. Neg.J case of real property. assumes the duty of keeping the premises in repair, and undertakes through his servant or agent to do it, and does it so negligently that the water comes in upon the tenant's apartment and injures his goods, — the landlord will be liable for the damages. °^ § 1142. liability of the landlord for Acts Done by Him on the Demised Premises During the Term.^ — The foregoing doctrines do not at all operate to exclude the liability of the landlord for injurious acts done by him on the demised premises during the term, whether such acts result in injury to his tenants or to third persons. He may be treated as a mere stranger, or as a coterminous owner, and yet be charged with liability for such injurious acts.^* Under this principle it has been held that a landlord is liable for damages to a tenant by the use of powerful engines in pumping water from adjoining land so as to cause such vibrations in the house leased as to render it useless to the tenant, although the house was old and unstable at the commence- ment of the term, and a house of ordinary stability would not have been injured.^^ So, irrespective of the question whether the landlord is liable to repair, yet if he does enter during the term for the purpose of making repairs, and employs a contractor to do certain work on the demised premises, retaining direction and control of the work, he will become liable to his tenants for damages caused by the negligence of such contractor;^* and this will be so, although the contractor may have been working by the job.^^ ISTor, in such a case, can the land- lord escape liability on the ground that there was no consideration for his promise to repair.^* For possibly stronger reasons, if a lessor bility could not be based on the con- sidewalk, and repairs it unskillfuUy tract obligation, but must rest en- or negligently, so that injury hap- tirely upon Ms delictum. - pens to a third person, be must pay A subordinate court in New York damages to such person: Canandai- bas held that a lessor who, to pre- gua v. Foster, 81 Hun (N. Y.) 147; vent the threatened removal of a s. c. 62 N. Y. St. Rep. 639; 30 N. Y. tenant, agrees to put the roof of the Supp. 686. demised building in repair, is liable '^'' Grosvenor Hotel Co. v. Hamil- for damages to the goods of the ten- ton (1894), 2 Q. B. 836. ant by reason of his failure to do ™ Bernauer v. Hartman Steel Co., so, — a decision which directly con- 33 111. App. 491. tradicts the doctrine of the text : " Lasker Real Estate Asso. v. Rauth V. Davenport, 60 Hun (N. Hatcher (Tex. Civ. App.), 28 S. W. Y.) 70; s. c. 37 N. Y. St. Rep. 664; 14 Rep. 404 (no off. rep.). N. Y. Supp. 69. "'Lynch v. Ortlieb (Tex. Civ. == Worthington v. Parker, 11 Daly App.), 28 S. W. Rep. 1017; s. c. writ (N. Y.) 545. of error denied in 87 Tex. 590; s. c. a This section is cited in §§ 1148, 30 S. W. Rep. 545. That, in such a 1170. case, a complainant, seeking to hold " Railton v. Taylor, 20 R. I. 279 ; the landlord liable for the negligence s. c. 39 L. R. A. 246; 3 Chic. L. J. of the contractor, must aver that it Wkly. 26; 38 Atl. Rep. 980. For in- was the landlord's duty to use dili- stance, if he undertakes to repair, gence to prevent accident, — see during the term, a grating over the O'Connors v. Schnepel, 12 Misc. (N. 1030 AS BETWEEN LANDLORD AND TENANT. [2d Ed. covenants that certain acts to be done by him on the leased premises, shall be without damage to the lessee, he will become liable to the lessee'f or damages visited upon him by the doing of such acts, whether such acts were done with or without negligence; for his covenant makes him absolutely liable.^® This liability of the landlord may become modified where the tenant wrongfully holds over after the ex- piration of the term. In such a case it has been held that the tenant has no cause of action for an injury to his furniture by unavoidable falling of tiles and other portions of the roof, in the effort of workmen employed by the landlord to remove them, there being no personal vio- lence exerted toward the tenant.^" § 1143. Effect of Special Stipulations in the Lease. — The tendency of the law to discountenance stipulations in contracts between parties whereby one of the parties undertakes to exempt himself from liability for his own negligence^ or other wrongful act, is discovered in the de- cision that a stipulation in the lease to the effect that the landlord shall not be liable for any loss to property on the premises, if "de- stroyed or damaged by fire, water or otherwise, or by the use or abuse of the Cochituate water, or by the leakage or bursting of water pipes, or in any other way or manner," — does not exempt the landlord from liability for damages caused by his own negligence in the management and use of that part of the premises which remains under his control, including the heating apparatus.^^ In like manner, a clause in a lease casting the risk of leakage upon the tenant, will not relieve the landlord from liability for damages caused by leakage due to his negli- gence while repairing the roof.°^ § 1144. Relation of Principal Tenant to Subtenant. — If a tenant sublets to another the whole or a portion of the demised premises, he occupies toward his subtenant the relation of a landlord;'^'' and what- ever rights the law of the jurisdiction and the terms of the lease give in such a case as between a landlord and tenant will apply as be- Y.) 356; s. c. 67 N. Y. St. Rep. 352; «> Railton v. Taylor, 20 R. I. 279; 33 N. Y. Supp. 562. No damages re- s. c. 39 L. R. A. 246; 3 Chic. L. J. coverable, under La. Civ. Code, art. Wkly. 26; 38 Atl. Rep. 980. 2700, by a lessee for unavoidable "^Mitchell v. Plant, 31 111. App. injury to his business, inconven- 148. A provision in a lease that the ience, vexation, and annoyance, tenant shall^ at his own expense, caused by his lessor in the course make all repairs in plumbing, of repairs upon the leased building when rendered necessary by his mis- which are necessary to its safety: use or neglect, does not require him Bonnecaze v. Beer, 37 La. An. 531. to make repairs rendered necessary °° Roussinet V. Rebout, 76 Cal. 454; by causes operating from without B. c. 18 Pac. Rep. 423. the building: Lathers v. Coates, 18 "' Jones V. Foley (1891), 1 Q. B. Misc. 231; s. c. 41 N. Y. Supp. 373. 730 "'Post, § 116L lObl 1 Thomp. Neg.] care of real property. tween the tenant and his subtenant. For example, where the owner of a leasehold transmits his entire interest therein to a tenant under him, without any agreement at the time to make repairs, and there is no deceit or misrepresentation on his part, he will not be liable for dam- ages to the goods of his subtenant, caused by defects in the roof of the building.®* § 1145. liability to Repair in Case the Premises are Destroyed or Injured by Fire. — In Louisiana the lessee is not responsible for losses occasioned by fire without his fault or negligence.*' Where the prin- ciples of the common law prevail, a lessee is not liable for the burning of the demised premises by an accidental fire, in the absence of an ex- press covenant on his part to repair. The implied covenant of the tenant to repair raises an obligation to repair generally, and so to use the premises as to make repairs unnecessary, as far as possible. It is, in effect, a covenant against voluntary waste, and nothing more. It does not make him liable for accidental damages, such as those caused by fire accruing without his fault. •*' The unauthorized storage of cot- ton by a tenant in a building, used for the storage of vehicles, renders him liable to his landlord for an injury resulting to the building by fire, which is due to the more dangerous nature of the cotton."^ Upon the destruction by fire of a structure occupied by a tenant, no obliga- tion rests upon either the landlord or tenant to rebuild it, in the ab- sence of covenants in the lease requiring it to be done.°^ Where, how- ever, the tenant has covenanted to keep in repair and return the prem- ises in as good condition as when he received them, at common law and in many of the United States, he is bound to rebuild structures on the demised premises destroyed by fire.'''' Many of the States, however, have established a different rule, and hold that, under such covenants, the tenant is not bound to rebuild if the destruction of the premises occurred without his fault; on the ground that, in the ab- sence of a specific covenant to rebuild, an intention of the parties to "McMahan v. Jacoway, 105 Ala. where the premises are insured and 585; s. c. 17 South. Rep. 39. the landlord has collected the in- »= Schwartz v. Salter, 40 La. An. surance) ; United States v. Bost- 264; s. c. 4 So. Rep. 77. wick, 94 U. S. 53; Long v. Fitzsim- » "Wolfe V. McGuire, 28 Ont. Rep. mons, 1 Watts & S. (Pa.) 530; Earle 45. V. Arbogast, 180 Pa. St. 409. "Anderson v. Miller, 96 Tenn. 35; ■"> Beach v. Grain, 2 N. Y. 86; Phil- s. c. 31 L. R. A. 604; 33 S. W. Rep. lips v. Stevens, 16 Mass. 238; Ely 615. v. Ely, 80 111. 532; Polack v. Pioche, f'' Smith V. Kerr, 108 N. Y. 31; 35 Cal. 416; Priest v. Foster, 69 Vt. Doupe V. Genin, 45 N. Y. 119; Bel- 417; Hoy v. Holt, 91 Pa. St. 88; four V. Weston, 1 T. R. 310; Leeds David v. Ryan, 47 Iowa 642. V. Cheetham, 1 Sim. 146 (even 1032 AS BETWEEN LANDLOBD AND TENANT. [2d Ed. that effect can not be inferred from the covenants to repair and return in as good order as when received.'" § 1146. Landlord not Liable for "Acts of the Law."— Under the Civil Code of Louisiana, in the absence of an express stipulation therefor, the landlord is not a warrantor against, nor is Ke responsible for what are termed "acts of the law."'^ For example, he can not be held liable for the deprivation of the use of a property, leased for a particular purpose, where the lease is silent as to the destination, or the deprivation is limited, temporary or partial, and is the conse- quence of legislation.''^ § 1147. Liability of Tenant to Landlord. — The lessee is liable to the lessor for the fall of a building, leased as a storehouse, only where he has put it to an unreasonable or excessive use, or has been negligent in other respects, which negligence is the cause of its fall, under a covenant by the lessee to restore the building to the same state and condition at the end of the term as it was when demised, ordinary wear and tear excepted.'^ But he is not liable for the falling of the building by reason of its imperfect construction, under a lease provid- ing that he shall be liable for all damages, other than loss or damage by fire, by reason of any act within or outside of the building by him or his servants, and that he shall surrender the premises in as good condition as when received, ordinary wear and tear excepted.'* ISTor, in the absence of an express agreement to that effect, can the landlord make his tenant liable for an injury to a third person, who fell into an unguarded area in the sidewalk in front of the demised premises, for failing to guard the area by a slat door or other device, where the ten- ant simply continued to use the areaway under the conditions existing at the time of the letting.'^ "Levey v. Dyers, 51 Miss. 501; for the resulting damages, in an Wainscott v. Silvers, 13 Ind. 497; action of contract, although he has Warren v. Wagner, 75 Ala. 188; Mil- fully paid his rent: Chalmers v. ler V. Morris, 55 Tex. 412; Whitaker Smith, 152 Mass. 561; s. c. 11 L. R. V Hawley, 25 Kan. 674; Van Wor- A. 769; 26 N. E. Rep. 95. mer v. Crane, 51 Mich. 363; Howeth "Machen v. Hooper, 73 Md. 342; V. Anderson, 25 Tex. 557. s. c. 21 Atl. Rep. 67. "Abadie v. Berges, 41 La. An. 281; "Reading v. Reiner, 167 Pa. St. s. c. 6 South. Rep. 529. 41; s. c. 31 Atl. Rep. 357. Case " Abadie V. Berges, 41 La. An. 281; where a door of a building on the s. c. 6 South. Rep. 529. demised premises fell, injuring a "Machen v. Hooper, 73 Md. 342; third person to the lessor's dam- s. c. 21 Atl. Rep. 67. In Massachu- age, the latter suing the lessee for setts, for a tenant unreasonably to reimbursement, and it was held overload a barn on the demised that there was no evidence of negli- premises, with produce and other gence on the part of the lessee: heavy substances, causing it to fall. Ocean Steam Nav. Co. v. Compania renders him liable to his landlord Trans-Atlantic Espanola, 26 Jones 1033 1 Thomp. Neg.J care of real property. § 1148. Whether Landlord Liable for Acts of Independent Con- tractor. — The question to be considered calls for the application of doctrines discussed in a previous chapter.''^ The question now to be considered is whether the law will allow a landlord, in making repairs on the demised premises during the term, to shift his responsibility for an injury to the tenant, upon an independent contractor, who may be insolvent. Some courts hold that he will not, and it is to be re- gretted that other courts hold that he will. The better view is that a landlord who undertakes to make repairs on the demised premises during the term, is liable for damages to the person or property of the tenant, resulting from the negligence of those whom he may engage to make the repairs, although they are employed by the job, and with- out reference to the question whether the landlord is under an agree- ment with the tenant to make the repairs or not;'^ though it was held in one case that where the landlord and tenant agreed that the land- lord might employ an independent contractor to make the repairs, the negligence, if any, would be ascribed to the contractor and the landlord would not be liable.''^ Although the landlord may stipulate with the contractor for a certain result only, without reserving any control over the contractor as to his methods of achieving that result, yet if the result itself is imminently dangerous, in consequence of which an injury accrues to the tenants of the landlord, he will be liable to them, on a principle already considered. '° For example, the landlord of a tenement house was held liable to a tenant for the fall- ing of a dumb waiter, gratuitously supplied by him for the con- venience of the tenants, which fall was due to the negligent splicing of the ropes supporting it, although the person who did the splicing was the independent contractor.^" So, although the landlord may call in to do certain work a competent contractor, yet if he personally supervises the worTc and it is improperly done, and the tenant is thereby damaged, the landlord will be liable, — as where he called in a competent tinsmith to replace defective pipes conducting water from the roof, and, through the manner in which the work was done, the goods of the tenant were injured by leakage.*^ On the other hand, where, through the negligence of an independent contractor, in failing to take measures to insure the safety of the tenants while the work of building or of reparation is in progress, an injury happens to a tenant, and the contractor is not under any control by the landlord, except as & Sp. (N. Y.) 425; s. c. 34 N. Y. St. Hatcher (Tex. Civ. App.), 28 S. W. Rep. 153; 11 N. Y. Supp. 728. Rep. 404 (no off. rep.). ™ Ante, § 645, et seq. " Ante, § 652, et seg. " Ante, § 1142 ; Houston &c. R. Co. »° Blake v. Fox, 43 N. Y. St. Rep. V. Meador, 50 Tex. 77 (in principle). 527; s. c. 17 N. Y. Supp. 508. '* Lasker Real Estate Asso. v. "' Worthington v. Parker, 11 Daly (N. Y.) 545. 1034 AS BETWEEN LANDLORD AND TENANT. [2d Ed. to the result to be attained, and the tenant is liurt through the act of the contractor in leaving an excavation unguarded, — the landlord will not be liable. ^^ § 1149. Duty to Provide Fire Escapes. — In the absence of statutory regulation, the common law imposes no duty upon the owner of a building to guard its occupants from a possible danger by fire, and to provide fire-escapes as an. extra means of egress on such an occasion.'^ But in the modern city, where population is congested and many fam- ilies or thousands of employes or tenants are crowded into a single building, a proper regard for human life requires compulsory pro- vision against danger by fire. And statutes with this object in view should receive a construction which will further their purpose, rather than one so strict as to deprive them of all useful operation. Thus it has been held that, under statutes requiring the owners of tenement houses to provide such fire-escapes and doors as the municipal authori- ties shall direct or approve, it becomes the owners' duty to bring the subject before the authorities and obtain their direction, and that they can not avoid liability for damages resulting from failure to provide fire-escapes by alleging that they had not been directed what kind of appliances to erect, or that they had no personal knowledge that the fire-escapes were not erected as required by law.^* And whether the means provided are sufficient under the circumstancs is to be left for the determination of the jury.^° The Supreme Judicial Court of Massachusetts, however, considers that a provision of the statute of that State relating to fire-escapes, which makes it the duty of an in- spector to inspect all buildings to which the act applies, and to specify '^ Wiese v. Remme, 140 Mo. 289 ; was alleged to be due to the negli- s. c. 41 S. W. Rep. 797. So, a land- gence of a. contractor who was work- lord was exonerated from liability ing upon the chimney, making no to a tenant for an injury caused by claim that It was the landlord's duty the fall of plaster, where an em- to use diligence to prevent such an ployg of the independent contractor accident: O'Connor v. Schnepel, 12 engaged in repairing the house, Misc. (N. Y.) 356; s. c. 67 N. Y. St. slipped his foot and went through Rep. 352; 33 N. Y. Supp. 562. the ceiling, although the plaster was ^ Pauley v. Steam Gauge &c. Co., out of repair, and might have fallen 131 N. Y. 90; Jones v. Granite Mills, later of its own accord. The prox- 126 Mass. 84; Schmalzried v. White, imate cause of the damage was 97 Tenn. 36. deemed to be the act of the employ^ »* Willy v. Mulledy, 78 N. Y. 310; of the contractor in putting his foot McLaughlin v. Armfleld, 58 Hun (N. through the ceiling, and not the neg- Y.) 376. See also Rose v. King, 49 ligence of the landlord: Fitzgerald Ohio St. 213. V. Timoney, 13 Misc. 327; s. c. 34 »= Gorman v. McArdle, 67 Hun (N. N. Y. Supp. 460. So, a landlord was Y.) 484; Schwandner v. Birge, 33 held not liable to his tenant for Hun (N. Y.) 186; Re Fire Escapes, 2 damages caused by the falling of Pa. Dist. Rep. 819. See also Keely soot down a chimney upon the de- v. O'Conner, 106 Pa. St. 321. mised premises, where the accident 1035 1 Thomp. Neg.] care of real property. and describe what additional ways of egress or means of escape from fire are necessary, — relieves the owner of a building from any liability from injury resulting from failure to provide fire escapes, until he has been notified by the inspector what facilities for escape are to be fur- nished for his building.^' In an action for injuries resulting from failure to provide fire-escapes as required by law, recovery will not be barred on the ground that the tenant had occupied the premises for three days, in the absence of an express waiver on his part or proof that he intended to occupy them as they were, or that he actually knew that they were defective in that particular ;^^ and even if the absence of the fire-escapes was known, the landlord would not be relieved from liability until the tenant had had reasonable time to look for other premises or to notify the landlord to furnish the fire escapes if he did not choose to move.^^ But it has been held that a guest in a hotel, who occupies a room for six months with the knowledge that it con- tains no rope or other appliance to be used in case of fire, waives all right of action against the owner for injuries received by failure to supply such appliances.^* Under a statute^"^ requiring that certain factories, etc., shall be provided with fire-escapes by the "owners" it has been held that a tenant in possession under a lease, and not the landlord, is the "owner.""" § 1150. When Landlord Entitled to Notice from Tenant that Build- ing is Out of Eepair. — When a landlord lets a part of a building, cove- * Perry v. Bangs, 161 Mass. 35. sey Home &c., 58 N. J. L. 354. See The reasonmg by which the court also Schmalzried v. White, 97 Tenn. justifies such a conclusion is as fol- 36. lows: "Whether proper ways of =' Willy v. Mulledy, 78 N. Y. 310. egress or other sufficient means of ''Willy v. Mulledy, 78 N. Y. 310. escape from fire are provided in any '" Armaindo v. Ferguson, 37 App. hotel is necessarily a matter upon Div. (N. Y.) 160. which men may often differ in opin- ™a Pa. Act, June 11, 1879 (P. L. ion, and we think it was not the in- 128). tention of the act to leave it to a ^ Schott v. Harvey, 105 Pa. St. jury to determine, after a fire, 222; s. c. 51 Am. Rep. 201; Keely v. whether there were proper ways of O'Connor, 106 Pa. St. 321. See also egress or sufficient means of escape. Lee v. Smith, 42 Ohio St. 458 (a We are of the opinion that the in- similar statute similarly construed), tention was that the inspector This construction of the Pennsyl- should decide this question, and vania act, however, induced the leg- that only after the inspector has de- islature to change the law so as to cided it and has given notice in make it the duty of "the owner or writing specifying what additional owners in fee or for life" to erect ways of egress or means of escape Are escapes: Re Fire Escapes, 2 Pa. from fire are necessary, and the Dist. Rep. 298. In the State of New owner, lessee, or occupant has neg- York, under such a statute, recov- lected or refused to comply with the ery against the owner in fee was order of the inspector, — can it be allowed, where the terms of the said that the owner, lessee, or occu- lease plainly showed that the build- pant has violated the provisions of ing was to be used for manufactur- the act." A similar decision is to ing purposes: Abrayan v. Manuf ac- he found in De Ginther v. New Jer- turers' Nat. Bank, 16 N. Y. St. Rep. 750. 1036 AS BETWEEN LANDLORD AND TENANT. [2d Ed. slanting to keep the roof in repair, he Tvill be entitled to notice that it is out of repair, unless he knows the fact outside of such notice ; and he will not be liable for damages caused by a want of repair, in the absence of such notice or knowledge.'^ Where the landlord let a house for a year, agreeing to keep it in repair, and after an occupancy of six naonths, the cellar stairs broke down from the tenant's weight, — it was held that the landlord was not liable for the injury to the ten- ant, unless he knew of the weakness of the stairs, or had been requested by the tenant to repair them."^ Article II. Liability in Case of Injuries to Third Persons. Section 1154. Liability to third persons for defects in leased premises presumptively on lessee. 1155. Landlord presumptively ex- empt from liability. 1156. A catalogue of circumstances under which landlord is lia- ble to strangers. 1157. Landlord liable to strangers where he has made an ex- press agreement with tenant to repair. 1158. Landlord liable to strangers where the nuisance existed at the commencement of the term. 1159. In such cases both landlord and tenant liable. 1160. When either landlord or ten- ant liable. 1161. The same rule as between lessee and subtenant. 1162. Landlord not liable for nui- sances created during the term. Section 1163. Landlord liable for nuisances existing at the time of renewal of lease. 1164. Illustrative cases where land- lord was exonerated from lia- bility to strangers. 1165. Who deemed the "occupier" in case of injuries to third per- sons. 1166. Further of this subject. 1167. The same subject continued. 1168. Continued. 1169. Who the "occupier" in case of municipal lease of a wharf. 1170. Landlord liable to a stranger for injurious acts done by him during the term. 1171. Circumstances under which landlord not liable to guests or customers of tenant. 1172. Circumstances under which landlord is liable to guests or customers of tenant. 1173. Liability of landlord to em- ployes of lessee. § 1154. Liability to Third Persons for Defects in Leased Premises Presumptively on Lessee.** — Assuming that the circumstances are such as to raise any duty at all, then, by the common law, the occupier, and not the landlord, is bound, as letween himself and the public, so far to keep the premises in repair that they may be safe for the public, and "Thomas v. Kingsland, 12 Daly (N. Y.) 315. '^ Spellman v. Bannigan, 36 Hun (N. Y.) 174. a This section is cited in §§ 745, 1207. 1037 1 Thomp. Neg.] care of real property. such occupier is prima facie liable to third persons for damages aris- ing from any defect."^ The rule of the common law no doubt rested upon the consideration that, under that law, the tenant and not the landlord, was, as between themselves, bound to keep the premises in repair, unless the contract of lease otherwise provided. But aside from this, whatever may have been the contract between the landlord and the tenant, the tenant was li'able to third persons as the occupier of the premises, — not on the ground of privity of contract,"* but for any failure of social duty toward them, growing out of his allowing the leased premises to fall into a state of dilapidation. For stronger reasons, he was liable to third persons where the injury happened from the doing of some affirmative act with reference to the premises while occupying them, upon which the law predicates the conclusion of negligence, — as where a lessee made alterations in a public building rendering the balcony insecure, whereby an accident resulted to a third person. °° But his liability may equally rest upon his mere omission, through negligence, to take some precaution for the safety of the pub- lie, — as where a tenant occupying a building fails to secure a window- sash, so that it falls upon a person passing along the sidewalk.®^ So, the tenant, and not the landlord, is held to be "the owner" of the building under a statute imposing an obligation upon the owners of certain buildings to erect fire-escapes.^'' A covenant in a lease that "no alteration or addition shall be made in or to the premises without the consent of the lessor," does not relieve the lessee from liability for injuries resulting to a third person from want of repair of the prem- ises. A lessee can not covenant to continue a nuisance, and escape liability to the civil authorities or to persons injured thereby."* "'Payne v. Rogers, 2 H. Black. 2 Sandf. S. C. (N. Y.) 303; Cleveland 350; Regina v. Watts, 1 Salk. 357; Co-operative Stove Co. v. Wheeler, s. c. sub nom. Regina v. Watson, 2 14 111. App. 112; Allen v. Smith, 76 Ld. Raym. 856; 3 Ld. Raym. 18; Me. 335; Blood v. Spaulding, 57 Vt. Cheetham v. Hampson, 4 Term Rep. 422; Odell v. Solomon, 99 N. Y. 635; 318; Russell v. Shenton, 3 Q. B. Timlin v. Standard Oil Co., 126 N. Y. 449; Boyle v. Tamlyn, 6 Barn. & 514; s. c. 37 N. Y. St. Rep. 906; 27 Cress. 329; Regina v. Bucknall, 2 N. .B. Rep. 786. An agreement be- Ld. Raym. 804; Bent v. Haddon, Cro. tween joint lessees of property that Jac. 555; Broder v. Saillard, 2 Ch. one of them shall keep the premises Div. 692; Coupland v. Hardingham, in repair is no defense to an action 3 Camp. 398; Nelson v. Liverpool against the other for damages aris- Brewery Co., 2 C. P. Div. 311; Tarry ing from non-repair: Cannavan v. V. Ashton, 1 Q. B. Div. 314; O'Brien Conklin, 1 Daly (N. Y.) 509. V. Capwell, 59 Barb. 497; Shindel- »" Odell v. Solomon, 99 N. Y. 635. beck V. Moon (Sup. Ct. Com. Ohio), "Bard v. New York &c. R. Co., 10 17 Am. L. Reg. 450; Chauntler v. Daly (N. Y.) 520. Robinson, 4 Bxch. 163; Bishop v. «> Odell v. Solomon, 50 N. Y. Super. Bedford Charity, 1 El. & El. 697; 119. Kastor v. Newhouse, 4 B. D. Smith "Keely v. O'Conner, 106 Pa. St. (N. Y.) 20; Gridley v. Bloomington, 321. 68 111. 47; Blunt v. Aikin, 15 Wend. »« Boston v. Worthlngton, 10 Gray (N. Y.) 522; New York v. Corlies, (Mass.) 496. 2038 AS BETWEEN LANDLORD AND TENANT [2d Ed. § 1155, Landlord Presumptively Exempt from Liability. — The cor- relativfe proposition, resting upon the principles of the common law, is that in case of an injury to a third person through a defect in the de- mised premises, the landlord is presumptively not responsible for the damages, since the liability presumptively rests upon the tenant."* The immunity of the landlord from this liability rests upon the ground that he has violated no duty which he owes to third persons, but that he has exonerated himself from any duty in respect of the demised premises when he has lawfully committed that care to his tenant. § 1156. A Catalogue of Circumstances under which Landlord is Liable to Strangers.^ — The foregoing rules are subject to numerous ex- ceptions ; and it is with them that we are chieiiy concerned in this dis- cussion. The landlord has been held liable to third persons for the defective condition of leased premises (but without excluding the lia- bility of the tenant) in the following cases: 1. Where, as between the landlord and the tenant, the landlord is under a covenant to keep the premises in repair. 2. Where the defect in the premises which causes the injury complained of existed at the date of the demise, and is a continuing public nuisance. ^°'' 3. Where, as in the case of public buildings, the landlord and the tenant have a mixed possession^ the landlord reserving the control of and consequently the duty to repair certain portions, such as the elevator by which the tenants reach their apartments.^*^ 4. Where the landlord during the term enters the premises and does something therein which produces harm to those who are lawfully there. ^"^ "'Miller v. Woodhead, 104 N. Y. 26 L. R. A. 197; 30 Atl. Rep. 65; 471; Edwards v. New York &c. R. Deller v. Hofferberth, 127 Ind. 414; Co., 25 Hun (N. Y.) 634; s. c. af- s. c. 26 N. E. Rep. 889; Hett v. Jan- firmed 98 N. Y. 245; 50 Am. Rep. 659 zen, 22 Ont Rep. 414; Ward v. Fa- (three judges dissenting); Deutsch gin, 101 Mo. 669; s. c. 10 L. R. A. V. Abeles, 15 Mo. App. 398; Marshall 147; 14 S. W. Rep. 738; McCarthy v. V. Heard, 59 Tex. 266; Allen v. Fagin, 42 Mo. App. 619. Smith, 76 Me. 335; Blood v. Spauld- a This section is cited in § 1171. ing, 57 Vt. 422; Knauss V. Brua, 107 ^""Palmer v. St. Albans, 60 Vt. Pa. St. 85; Heath v. Metropolitan 427; s. c. 6 N. Eng. Rep. 236; 13 Atl. Exhibition Co., 33 N. Y. St. Rep. Rep. 569 (doctrine recognized, al- 828; s. c. 58 Hun (N. Y.) 604, mem.; though the case related to the law 11 N. Y. Supp. 357; Sinton v. Butler, of master and servant). See, post, 40 Ohio St. 158; Strauss v. Hamers- §§ 1158, 1159. ley (C. P.), 37 N. Y. S. R. 749; 13 "'See, for illustration, Ritterman N. Y. Supp. 816; Norling v. AUee, v. Ropes, 51 N. Y. Super. 25; ante, 37 N. Y. St. Rep. 409; s. c. 13 N. Y. §§ 1096, 1137; post. § 1165. Supp. 791 ; Shillak v. White, 38 N. '»^ As where the landlord had a re- Y. St. Rep. 483; s. c. 14 N. Y. Supp. volving shaft in the building, for 637; Lansing v. Thompson, 8 App. the purpose of transmitting power Div. 54; s. c. 40 N. Y. Supp. 425; to another building, and failed to Lee V. McLaughlin, 86 Me. 410; s. c. fence it, or to use other means to 1039 1 Thomp. Neg.J care of eeal property. § 1157. Landlord Liable to Strangers where he has Hade an Ex- press Agreement with Tenant to Eepair. — Under the first head, where there is an express agreement between the landlord and the tenant that the former shall keep the premises in repair, so that, in case of a recovery against the tenant, the latter would have his remedy over against the landlord, then, to avoid circuity of action, the party in-^, jured by the defect and want of repair may have his action in the first instance against the landlord. ^"^ § 1158. Landlord Liable to Strangers where the Nuisance Existed at the Commencement of the Term.^ — IJnder the second head, it is justly held that the owner of real estate can not, by leasing the same to a tenant, avoid liability to a third person, for the continuance of a nuisance on the premises which was there before the leasing, and which it was his duty to abate ;^°* and the same principle holds good to charge the landlord where the condition of the premises is such at the time of the demise, that the use of them by the tenant will neces- sarily produce a nuisance. For example, if the construction of the premises is such that they can not be used at all for the purpose in- tended without creating a nuisance, then the landlord will be liable therefor when the nuisance arises.^ °^ But where the construction of protect the employes of his lessee, who were rightfully in its vicinity, from being hurt by it: Davis v. Pacific Power Co., 107 Cal. 563; s. c. 40 Pacific Rep. 950. Or where, in removing a wall on the demised premises for the purpose of replac- ing it with a new wall, the employes of the landlord inflicted damage upon the tenant: Northern Trust Co. V. Palmer, 171 111. 383; s. c. 49 N. E. Rep. 553; aff'g 70 111. App. 93. Nor does it make any difference in such a case that the damage was done by independent contractors, since the duty on the part of the landlord was absolute in its nature, within the meaning of a principle already considered: Northern Trust Co. V. Palmer, 171 111. 383; s. c. 49 N. E. Rep. 553; aff'g 70 111. App. 93; ante, §§ 665, 666. As to the liability of a landlord to a third person, for damages produced by the defective condition of demised premises, see Lee V. McLaughlin, 86 Me. 410; s. c. 26 L. R. A. 197. In 26 L. R. A. 197, there is a learned note to the case just named, five pages in length, on the liability of a landlord to third 1040 persons, for the condition of prem- ises in possession of his tenant. '™ Payne v. Rogers, 2 H. Black. 350. Although this principle was questioned by Coleridge, J., in Rus- sell V. Shenton, 3 Q. B. -455 (see also Burdick v. Cheadle, 26 Ohio St. 397), it is no doubt the settled law. See Nelson v. Liverpool Brewery Co., 2 C. P. Div. 313; Lowell v. Spaulding, 4 Cush. (Mass.) 278; Benson v. Suarez, 43 Barb. (N. Y.) 408; Clancy v. Byrne, 56 N. Y. 129; Gridley v. Bloomington, 68 111. 51. a This section is cited in §§ 514, 1156, 1183, 1211. '"Knauss v. Brua, 107 Pa. St. 85; Irvine v. Wood, 51 N. Y. 224; affirm- ing s. c. 4 Robt. (N. Y.) 138; Gibson V. Leonard, 37 111. App. 344; s. c. 24 Ohio L. J. 441. '°=Rex V. Pedly, 1 Ad. & E. 822. See also Offerman v. Starr, 2 Pa. St. 394, and House v. Metcalf, 27 Conn. 632, a case in which an owner of a mill situated so near the highway that its revolving wheel frightened horses, was held responsible for damages to a traveller on the high- way from this cause, although it AS BETWEEN LANDLORD AND TENANT. [2d Ed. the premises is such that the proper use of them will not develop a nuisance, but the nuisance arises from an improper use of them by the tenant, — as where he creates a nuisance by burning coal when he might have burned coke, — then, the tenant, and not the landlord, will be liable.^"* It follows, in general, that if, at the time the owner parts with the possession and control of his premises, they are in good condition, he will not be liable for damages resulting from a subse- quent defect in the premises while they are in the possession of a lessee.^"^ § 1159. In Such Cases both landlord and Tenant Liable.^ — In such cases the law gives an action either against the landlord or the tenant, or both, — holding the former as the author, and the latter as the con- tinuer of the nuisance. '^"^ The conclusion would seem to be that, assuming that there is any liability at all, the tenant is always re- sponsible for injuries received from defects in the premises,^"' while, under certain circumstances, the landlord may be also. These cir- cumstances generally are, first, where the landlord has contracted with the tenant to make the necessary repairs; secondly, in the case of a misfeasance by the landlord, — as, for instance, where he lets premises which are out of repair. ^^^ § 1160, When Either Landlord or Tenant Liable. — Although, as before stated, the occupier is prima facie liable for defects upon the leased premises, yet, if the premises were in such defective condition at the time of the making of the lease, in such case the action may be would seem that not the wheel it- 66; Ditchett v. Spuyten Duyvil &c. self, but Its operation by the tenant, R. Co., 67 N. Y. 425 (reversing 5 occasioned the accident. But see Hun (N. Y.) 165. See also Gwath- Elliott V. Pray, 10 Allen (Mass.) ney v. Little Miami R. Co., 12 Ohio 378. If the owner has rented the St. 92, with which case compare premises with the knowledge that Brooklyn v. Brooklyn City R. Co., they are insufBclent for the purpose 47 N. Y. 475; 57 Barb. (N. Y.) 497; for which they are designed to be 8 Abb. Pr. (N. S.) 356. used, or under the circumstances is a This section is cited in §§ 514, properly chargeable with knowledge 1156. of this fact, he will be liable to per- '■'" See Griffith v. Lewis, 17 Mo. sons injured thereon inconsequence: App. 605, 612; also Padberg v. Ken- Burdick v. Cheadle, 26 Ohio St. 397; nerly, 16 Mo. App. 556; Gordon v. Godley v. Hagerty, 20 Pa. St. 387 Peltzer, 56 Mo. App. 599, 603. See (affirmed in Carson v. Godley, 26 Pa. also Eyre v. Jordan, 111 Mo. 424, St. 111). where this principle is recognized; ™Rich V. Basterfield, 4 C. B. 783. Schmidt v. Cook (C. P.), 12 Misc. See also Fish v. Dodge, 4 Denio (N. (N. Y.) 449; s. c. 33 N. Y. Supp. Y.) 311; Hale v. Dutant, 39 Texas 624; 67 N. Y. St. Rep. 330, aff'g 30 667; Pickard v. Collins, 23 Barb. (N. N. Y. Supp. 1135; s. c. 63 N. Y. St. Y.) 414; Saltonstall v. Banker, 8 Rep. 875. Gray (Mass.) 195; Muller v. Stone, ""Bears v. Ambler, 9 Pa. St. 193. 27 La. An. 123. "° Nelson v. Liverpool Brewery "' St. Louis V. Kaime, 2 Mo. App. Co., 2 C. P. Div. 311. VOL. 1 THOSIP. NEG. — 6 1041 i Thomp. Neg.] care of real property. brought against the lessor or lessee^ at the election of the plaintiff. ^'^'^ Thus, the defendant- erected a house, whereby the ancient lights of the plaintiff were stopped. The plaintiff brought action for this nui- sance, and recovered damages against the defendant. Afterwards he demised the property, with the nuisance yet upon it, to another, and the court held that he was subject to a second action for the continu- ance of the nuisance; that it was not in his power thus to discharge himself of the consequential damages arising from the nuisance, especially when he derived a profit, in the receipt of rent, from the continuance of it.^^^ But, in order that the person who has erected a nuisance shall be liable- for its continuance after he has parted with the possession of the premises whereon it exists, it is necessary that he should derive some profit from its continuance, — as, by the receipt of rent,^^^ — or that the property be conveyed with covenants for the continuance of the nuisance.^^* Where it is the settled law, as in the State of !N"ew York, that excavations made in the highway without spe- cial authority, and for private purposes, are nuisances per se, in regard to which the authors thereof are held to the liability of insurers against accident to persons using the highway,^^^ both the lessor and lessee of premises adjacent to which such excavations exist for their convenience, — for example, a coal-hole in the sidewalk, — will be held liable for any injury resulting therefrom; the former because he de- "'Rosewell v. Prior, 2 Salk. 459; dy v. Jubber, 5 Best & S. 485; Ow- s. c. 12 Modern 635 ; Staple v. Spring, ings v. Jones, 9 Md. 108 ; Stratton v. 10 Mass. 72; Waggoner v. Jermaine, Staples, 59 Me. 94; Fisb v. Dodge, 4 3 Denio (N. Y.) 306; Irvine v. Wood, Denio (N. Y.) 311; Durant v. Palm- 51 N. Y. 228; Stephani v. Brown, 40 er, 29 N. J. L. 544; Anderson v. 111. 428; Moody v. New York, 43 Dickie, 1 Robt. (N. Y.) 238; 28 How. Barb. (N. Y.) 282; s. c. 34 How. Pr. Pr. (N. Y.) 105; Bellows v. Sackett, (N. Y.) 288; Durant v. Palmer, 29 15 Barb. 96; Helwig v. Jordan, 53 N. J. L. 544. And tbis rule is ap- Ind. 21; Grady v. Wolsner, 46 Ala. plicable to tbe successor to the title 381. An arbitrary, and it would and possession of property who seem an unreasonable, exception to omits to abate a nuisance erected this rule is stated in some cases, — thereon by another: Brown v. Cay- that a landlord who lets a house in uga &c. R. Co., 12 N. Y. 486; Pills- a dangerous state is not liable to the bury V. Moore, 44 Me. 154; Morris tenant's customers or guests for ac- Canal &c. Co. v. Ryerson, 27 N. J. cidents happening in consequence, L. 457; Hubbard v. Russell, 24 Barb, during the term: Robblns v. Jones, (N. Y.) 404; Woodman v. Tufts, 9 N. 15 C. B. (N. S.) 221, 240; Burdick v. H. 88; Johnson v. Lewis, 13 Conn. Cheadle, 26 Ohio St. 393. 303; Pierson v. Glean, 14 N. J. L. 36; "^Rosewell v. Prior, 12 Mod. 635. Crommelin v. Coxe, 30 Ala. 318; "* Waggoner v. Jermaine, 3 Denio Beavers v. Trimmer, 25 N. J. L. 97. (N. Y.) 306; Albany v. Cunliff, 2 N. But in such case the general rule is Y. 174, per Bronson, J.; Hanse v. that there must have been an ex- Cowing, 1 Lans. (N. Y.) 288. press request to such grantee to dis- "° Congreve v. Morgan, 18 N. Y. continue the nuisance. 84; Congreve v. Smith, 18 N. Y. 79; "^Rosewell v. Prior, 12 Modern Creed v. Hartmann, 29 N. Y. 591; 635, 639; s. c. 2 Salk. 459. See also Irvine v. Wood, 51 N. Y. 224; s. c. 4 Rex v. Pedly, 1 Ad. & E. 822; Todd Robt. (N. Y.) 138; Irvin v. Fowler, V. Flight, 9 C. B. (N. S.) 377; Gan- 5 Robt. 482. 1042 AS BETWEEN LANDLORD AND TENANT. [2d Ed. rives a profit from the existence of the nuisance, the latter because he is guilty of a continuance of it/^' § 1161. The Same Eule as between Lessee and Subtenant.^^ — ^This rule applies to a lessee who has sublet premises in good repair at the time of such subletting. He can claim immunity, as well as the owner of the premises, from liability to respond in damages for the occurrence of an accident resulting from the defective condition of the premises during the possession of the sublessee, and that, too, although he (the original lessee) covenanted with the owner to keep the prem- ises in repair.^^^ But if a lessee sublets premises out of repair, he will be held liable as if he were the owner or author of the nuisance.^^* For example, if the premises contain a nuisance dangerous to the pub- lic, — let us say an unsafe wall, — in consequence of which the building falls while in the possession of the subtenant, the liability of the lessee, in his character of landlord, will depend upon the question whether he had notice of the unsafe condition of the wall, or whether a sufficient time had elapsed since the commencement of his term to have enabled him, by the exercise of reasonable diligence, to learn of its existence.^^* Accordingly, it has been held that the lessee of a building who has sublet it for a year, is not liable for the death of a third person caused by the falling of one of its walls, unless such lessee knew, or should have known, that the wall was in a dangerous condition before making the sublease.^^" § 1162, landlord Not Liable for Nuisances Created during the Term. — Turning now to the subject of nuisances created during the term, the general rule is, and must be, that the landlord is not liable therefor, so long as he has no right of entry, and no power to abate the nuisance ;^^^ and for stronger reasons, he will not be liable crim- inally for a nuisance created by his tenant, such as the obstruction of the highway by the erection of a building, merely because the land- lord knew of it, and did not dissent from it.^^^ ™ Irvine v. Wood, Zl N. Y. 224; .s. '^ Ingwersen v. Rankin, 47 N. X C. 4 Robt. 138. L. 18. a This section is cited In § 1144. '^^ Commonwealth v. Switzer, 134 "'Clancy v. Byrne, 56 N. Y. 129. Pa. St. 383; s. c. 47 Phila. Leg. Int. "'Davenport v. Ruckman, 37 N. 352; 26 W. N. C. (Pa.) 46; 19 Atl. Y. 568; 10 Bosw. (N. Y.) 20; 16 Abb. Rep. 681. That the landlord is re- Pr. (N. Y.) 341; Timlin v. Standard sponsible for the maintenance of a Oil Co., 126 N. Y. 514; s. c. 37 N. Y. nuisance where he receives rent St. Rep. 906; 27 N. E. Itep. 786. with knowledge of its existence, ""Timlin v. Standard Oil Co., 126 seems to be held in one case: New N. Y. 514; s. c. 37 N. Y. St. Rep. 906; Rochelle Board of Health v. Valen- 27 N. E. Rep. 786. tine, 57 Hun (N. Y.) 591; s. c. 32 ""Timlin v. Standard Oil Co., 126 N. Y. St. Rep. 919; 11 N. Y. Supp. N. Y. 514; s. c. 37 N. Y. St. Rep. 906; 112. But this can not be affirmed 27 N. E. Rep. 786. 1043 1 Thomp. Neg.] cake of real property. § 1163. landlord Liable for Nuisances Existing at Time of Re- newal of Lease. — But when the term expires, or in case, under the terms of the lease, the landlord has the right to enter and abate the particular nuisance, he will become liable civilly for its continuance ; and this liability can not be evaded by a renewal of the lease, with covenants on the part of the tenant to repair, and without the land- lord having resumed actual possession. ^^' Even though premises are in good repair at the time of the making of a lease and delivery of pos- session, yet if, at the date of renewal of the lease, they are out of re- pair, the landlord will be liable for the existence of such defects, as if they had been in such condition at the time of the making of the lease.^^* § 1164. Illustrative Cases where Landlord was Exonerated from Liability to Strangers. — For example, the landlord is under no duty to keep the roof of demised premises in such repair as to prevent in- jury to the children of strangers that may come upon them, visiting his tenant ; and where such a child went upon the roof of a tenement house and fell through the sky-light, it was held that the landlord was not liable.^^° So, where the owner of a building let it to another to be used for a walking match, and while it was being so used a gal- lery therein gave way, in consequence of the inadequacy of the altera- tions made by the tenant, — it was held that the landlord was not liable.^^" So, it was held that a landlord, in the absence of a contract to repair, is not liable for injury to adjoining premises caused by a break in a pipe which was in good order when the tenant took posses- sion.^^^ So, where the invited guests of a tenant are injured in con- sequence of a defect in the demised premises which does not appear to have existed at the time when the lease was made, they must seek their remedy against the tenant, and not against the landlord.^ ^^ So, a landlord is not liable for injuries caused by failure of his tenant to re- pair division fences, although they were out of repair when the tenant came into possession.^^^ So, where a properly constructed water- as a general proposition of law. '^ Whalen v. Gloucester, 6 N. Y. S. That a landlord who lets premises C. (T. & C.) 135; s. c. 4 Hun (N. Y.) with a nuisance thereon, consisting 24. of a large flat stone standing almost ^' Miller v. Woodhead, 104 N. Y. perpendicular on edge against a 471. fence, is liable for injuries caused '"' Edwards v. New York &c. R. by its falling,— see Schmidt V. Cook, Co., 25 Hun (N. Y.) 634; s. c. af- 12 Misc. 449; s. c. 33 N. Y. Supp. firmed 98 N. Y. 245; 50 Am. Rep 624; 67 N. Y. St. Rep. 330; aff'g 30 659 (three judges dissenting). N. Y. Supp. 1135; 63 N. Y. St. Rep. '"Deutsch v. Abeles, 15 Mo. App. 875. 398. '^Ingwersen v. Rankin, 47 N. J. "« Marshall v. Heard, 59 Tex. 266. L. 18. ^ Blood V. Spaulding, 57 Vt. 422. 1044 AS BETWEEN LANDLORD AND TENANT. [2d Ed. closet in a building overflows through the tenant's carelessness, and damages the property of a third person, the landlord is not responsi- ble.^*" So, the landlord is not liable for an injury happening to a person on the sidewalk from a fall of sand from a leased building, where the building, including its roof, is subject to the control of the tenant, although his tenancy is at will merely.^*^ So, it is the duty of a tenant who has leased a farm ''on shares" to keep the fences in repair, in the absence of a covenant to the contrary.^ *^ So, the lessee of premises on which there is a known and dangerous nuisance, threat- ening injury to others, is liable for injuries occasioned thereby, though his lessor has a right to terminate the lease upon sixty days' notice, and the lessee is not himself occupying the premises.^*' So, where the fall of a window blind from a part of a building which had been let to a tenant, took place, without anything to show that the tenant was not charged with the duty of keeping the premises safe, it was held that the landlord was not liable for an injury thereby caused to a person on the sideivalJc.^^* In like manner, a lessor was not liable for injuries visited upon a third person by the explosion of steam toilers on the demised premises, which boilers were in good condition when the lease was made, the lease containing a covenant upon the part of the lessee to keep the premises in repair.^ '^ § 1165. Who Deemed the "Occupier" in Case of Injuries to Third Persons.^^ — Who is to be deemed the occupier of the premises within the meaning of the rule which charges the tenant and exonerates the landlord, is often difficult of solution, especially in the case of a mixed possession^^^ Thus, in Leslie v. Pounds,^^'' during the subsistence of the lease, but in the absence of the tenant, the landlord, under agree- ment with the tenant, entered the premises for the purpose of making extensive repairs, all of which the tenant was to pay for. The land- •="> Allen V. Smith, 76 Me. 335; '^Deller v. Hofferberth, 127 Ind. State of contract and other circum- 414; s. c. 26 N. E. Rep. 889. So also stances under which it was held a landlord, who is ignorant of a de- that the landlord was not in posses- feet arising from non-repair during sion of an elevator in a building and the existence of a lease containing a responsible for an injury through covenant on the part of the tenant its defective condition: Sinton v. to repair, and continuing during a Butler, 40 Ohio St. 158. subsequent holding over by the ten- "^Lee V. McLaughlin, 86 Me. 410; ant, is not liable to a stranger for an s. c. 26 L. R. A. 197; 30 Atl. Rep. 65. injury caused by such neglect hap- "=Fenton v. Montgomery, 19 Mo. pening during such hold-over. In App. 156. such a case a renewal of the cove- ''^ Timlin v. Standard Oil Co., 126 nant to repair is implied: Hett v, N. Y. 514; s. c. 37 N. Y. St. Rep. 906; Janzen, 22 Ont. R6p. 414. 27 N. E. Rep. 786. a This section is cited in § 1156. "* Szathmary v. Adams, 166 Mass. '=° Compare, ante, §§ 1096, 1137. 145; s. c. 44 N. E. Rep. 124. '" 4 Taun. 649. 1045 1 Thomp. Neg.] care of real property. lord was the sole ]udge as to what repairs were to be made, the tenant having left the premises nearly six months before the accident which gave rise to this suit. During the progress of the repairs, the plaint- iff fell down a cellar-door, opening from these premises upon the highway, which had been left open by the carelessness of the landlord's servants. Lord Mansfield, C. J., though perplexed by this singular state of circumstances, came to the conclusion that the defendant made these repairs, not as the agent of the tenant, but as landlord of the premises, for the reason that the repairs were under his direction, were of a substantial character, and as much for his benefit as that of the tenant. In another case, on the other hand, the defendants, being owners of a manufactory and a pond above it, and having purchased of the plaintiff the right of drawing off the water from the pond through his land, made a written contract "with one B., by which B. was to run the defendants' mill for one year, and to manufacture for them, at a specified price, cotton furnished by them, and to keep the mill in good running order at his own expense, except the main gear- ing, which was to be repaired by the defendants when necessary. No rent was to be charged by the defendants, nor were they to be called upon for any expense except as incidental to the repair of the main gearing, or unless some injury should arise to the dam. In an action against the defendants for an injury sustained by the plaintiff in con- sequence of B.'s letting off the water from the pond so rapidly as to overflow the plaintiff's land, it was held that B. was the lessee, and not the servant of the defendants, and, consequently, that they were not responsible for the injury complained of.^^* The fact that the owner occupies a house in connection with several of his tenants, raises no presumption of negligence against him for an injury to a person resulting from the negligent use of a portion of the premises, which are properly constructed, and safe with ordinary usage. ^^^ The owner of a mine, having demised the Tight to mine at a rent payable on each ton of coal taken out, reserving the right to view and examine the mine, and to re-enter on non-payment, neglect, etc., will be regarded as a landlord, and not liable for an injury resulting from the prosecu- tion of the work by the tenant.^*" The defendant, as administrator of the estate of one of two mortgagees, was held to be not liable for the breaking away of a dam which was in the possession of third per- sons, although such possession was by virtue of a verbal agreement with the other mortgagee, whose entire interest in the dam was quit- claimed to the defendant previous to the accident, and although the ^^ Fiske V. Framingliam Man. Co., '** Kaiser v. Hirth, 46 How. Pr. 14 Pick. (Mass.) 491. (N. Y.) 161. '" Offerman v. Starr, 2 Pa. St. 394 1046 AS BETWEEN LANDLORD AND TENANT. [2d Ed. accident was alleged to be due to the defective structure of the dam. These facts did not constitute possession by himself or his tenants.^*^ Similarly, a person who has a license from the public authorities to run a ferry, and has leased the same to another person for a definite period, who is conducting the same independently of the lessor, by his own men and means, is not liable in damages for an injury during that period caused by the wrongful act or negligence of the servant of the lessee.^*^ § 1166. Further of this Subject.— But where the defendant, the owner of quarries, in which the operations of blasting by his tenants produced injury to the adjoining property, was present on several occa- sions, and by his conduct adopted the acts of his tenants as his own, and on one occasion assumed the responsibility of the conduct com- plained of, and defied legal proceedings against him, a prayer for an instruction to the jury which asked the court to assume that all the injuries were the acts of the tenants exclusively, was held to be clearly erroneous.^*^ So, also, parties having agreed to become tenants, moved upon the premises before the execution of the lease, and having suffered a hoist-hole there to remain open, were held to be "occupiers" sufficiently to invest them with the duty of guarding against defects in the premises.^** If the owner of a building puts an elevator into it for the convenience of his tenants, the machinery being under the control of the landlord, he will be responsible for an injury re- ceived by a person lawfully using the elevator.^^^ The case of Kirhy v. Boylston Market Association^^'^ was an action for an injury received by plaintiff falling upon the sidewalk along de- fendant's premises, which was in an icy condition on account of the gutters of the building being of insufficient capacity '" Oakham v. Holbrook, 11 Cush. which, without the consent of the (Mass.) 299. State, lease their roads under long "' Norton v. Wlswall, 26 Barb, leases will . he responsible for the (N. Y.) 618. See also Blackwell v. acts of their lessees in running the Wiswall, 24 Barb. (N. Y.) 355; Fel- road. See Nelson v. Vermont &c. R. ton V. Deall, 22 Vt. 170 ; Ladd v. Cho- Co., supra, and authorities there tard. Minor (Ala.) 366; Bowyer v. cited; 4 Thomp. Corp., §§ 5358, 5359, Anderson, 2 Leigh (Va.) 550. But 5360. where the injury occurs from the '" Scott v. Bay, 3 Md. 431. non-performance of a duty which the '" Hadley v. Taylor, L. R. 1 C. P. law imposes, and is directly trace- 53. Compare with this case Fisher able to that cause, there the person v. Thirkell, 21 Mich. 1. is liable notwithstanding subsequent "" Stewart v. Harvard College, 12 parties of lessees, having taken his Allen (Mass.) 58. place, may have continued guilty of '"14 Gray (Mass.) 249. See Burt the delinquency: Nelson v. Vermont v. Boston, 122 Mass. 223; Milford v. &c. R. Co., 26 Vt. 717. And, upon a Holbrook, 9 Allen (Mass.) 17; La- principle of public policy, it is gener- rue v. Farren Hotel Co., 116 Mass. ally held that railroad corporationa 67. 1047 1 Thomp. Neg.] care of real property. to conduct the water from the roof, and the spout of such gutters discharging upon the sidewalk. All the separate parts of the building, consisting of cellars, stalls, and disconnected chambers, were leased, either at will or for a term of years, to many different tenants ; yet the defendants had general supervision over the whole, and had the entire control of the outside doors and outside passage-ways, so far as was necessary to enable than to make all necessary repairs. Their superintendent kept the key of the market-room, but opened and closed the doors of it at fixed hours, according to the wishes of the tenants. Under these circumstances, it was held that there was no such occu- pancy by the tenants as would cast upon them the obligation to keep the building in repair, but the liability for injuries to third persons rested upon the owners. Subsequently a case arose in which the land- lord's control of the premises was less palpable than in the preceding case, which case will be now considered. § 1167. The Same Subject Continued. — In Shipley v. Fifty Asso- ciatesp-" the roof of a building was so constructed as to cast snow and ice upon the street below, unless the same were seasonably removed. The whole building had been leased to tenants, — the lower floor and cellar to one tenant (reserving a scuttle-way), "all the chamber stories" to another (reserving certain rights). There was nothing in either lease which transferred any right to use or control the roof. Each lease required the tenant to keep the premises leased to him in repair, with the usual exceptions, but reserved to the lessors a right of entry to view and make repairs. The court refused to construe these leases as excluding the lessors from the roof, or relieving them from obligation, as owners, to remove whatever substances might ac- cumulate there and become a nuisance to travellers upon the high- way. Five years after the decision in this case, the question was pre- sented to the same court whether the owner of a building with a roof so constructed that snow and ice collecting on it from natural causes would naturally and probably fall into the adjoining highway would be liable to a person injured by such a fall upon him, while travelling upon the highway with due care, if the entire building was at the time let to a tenant who had covenanted with the owner "to make all need- ful and proper repairs, both internal and external."^*^ It was held that he would not be. The effect of this decision would seem to be to absolve the lessor from liability for damage to third persons arising from the original defective construction of the premises, or the exist- ence of a nuisance thereon at the time of the making of the lease, "'101 Mass. 251; s. c. 106 Mass. "« Leonard v. Storer, 115 Mass. 86, 194. 1048 AS BETWEEN LANDLORD AND TENANT. [2d Ed. when the lessee has covenanted therein to make all needful repairs upon the premises. The conclusion in this case was reached inde- pendently of the authority of Pretty v. Bickmore,^^^ to the same effect, decided nearly one year previous, and which does nrot seem to have been brought to the attention of the court. The facts of this case were, that the defendant let premises to a tenant, under a lease by which the latter covenanted to keep them in repair. Attached to the house was a coal-cellar under the footway, with an aperture covered by an iron plate, which was, at the time of the demise, out of repair and dangerous, in consequence of which the plaintiff, in passing by, fell into the hole and was injured. It was held that the obligation to repair being by the lease cast upon the tenant, the landlord was not liable for this accident. The principle of this decision was subse- quently af&TTnei on an almost identical state of facts.^^" In reaching this conclusion, the court did not profess to impugn the authority of Rex V. Pedly^^^ and Todd v. Fliglit.^^^ In both Pretty v. Bickmore and Gwinnell v. Earner it did not appear that the landlord was aware of the existence of the defect in the premises at the time of the making of the lease ; and thus neither case goes to the extent of asserting that a man may create a nuisance on his premises, or allow them to become such, and then turn them over to another party and derive profit from the continuance of the nuisance, without the attendant responsibility for the same, which was the express ground of the decision of earlier and authoritative cases.^^^ But it would seem that in Leonard v. Storer^^^ the lessor must have been aware of the character, of the con- struction of his roof at the time the lease was made, or properly chargeable with knowledge. The landlord was absolved from liability for this defect in his premises because "it does not appear that he [the tenant] might not have cleared the roof of snow by the exercise of due care, or that he could not, by proper precautions, have prevented the accident." From this it would seem that this case is not wholly at variance with the earlier and leading cases on this subject ;^^'' for, had the nuisance been of such a character that the tenant could not have remedied it under his agreement to repair, or such that the prem- ises could not have been used for the purposes for which they were demised unless the nuisance continued, the language quoted from the "» L. R. 8 C. P. 401. s. c. 12 Modern 635 ; Rex v. Pedly, 1 >" Gwinnell v. Eamer, L. R. 10 C. Ad. & B. 822 ; Todd v. Flight, 9 C. B. p. 658. (N. S.) 377; s. c. 30 L. 3. (C. P.) 21. '" 1 Ad. & B. 822. '" 115 Mass. 86. "^9 C. B. (N. S.) 377; s. c. 30 L. J. ^"^Rosewell v. Prior, supra; Rex (C. P.) 21. V. Pedly, supra; Todd v. Flight, ">»Rosewell v. Prior, 2 Salk. 459; supra. 1049 1 Thomp. Neg.j care of real property. opinion of the court would seem to justify the conclusion that the land- lord could not have escaped the consequences of his original neglect. § 1168. Continued.^ — The principle decided in Pretty v. Bickmore and Leonard v. Storer was discussed by the Court of Appeals of New York in the ease of Swords v. Edgar /^^ and a contrary conclusion reached. In this case, the plaintiff's intestate was killed by falling through a pier of the defendants, which was in a decayed and unsafe condition. The pier was at the time leased to a person who had cov- enanted to keep the pier in good order and repair. The pier was in such a condition, at the time of the demise and delivery of possession to the lessee, that the owners knew, or were properly chargeable with knowledge, of its dangerous character. Folger, J., in delivering the opinion of the majority of the court, very ably reviewed the decision in Pretty v. BicTcmore,'^^'' and declined to follow it (and likewise Leonard v. Storer), for the reason that it ignored the rule announced in Rosewell v. Prior, ^^^ and subsequent adjudications in harmony therewith. Speaking of the covenant of the lessee, he used the fol- lowing language, which would seem to show that Pretty v. Bickmore and Leonard v. Storer were not correctly decided : "The person inju- riously affected by the ruinous state of the premises demised has no right nor privity in the covenant. He is not given thereby a right of action against the lessee greater nor more sure than he had before. He has the right without the covenant. The covenant is a means by which the lessor may reimburse himself for any damages in which he is cast by reason of his liability. But it is an act and obligation be- tween himself and another which does not remove nor suspend that liability. It is not so, that a person upon whom there rests a duty to others may, by an agreement solely between himself and a third person, relieve himself from the fulfillment of his duty."^^° The foregoing remarks would seem to be decidedly the preferable view of this ques- tion. The position maintained is sound on legal principles and on public policy. § 1169. Who the "Occupier" in Case of a Municipal Lease of a Wharf. — The transfer of the right to collect the wharfage {i. e., the dues from vessels which lie at or make fast to a pier), coupled with an agreement on the part of the lessee to keep the premises in repair, although it does not vest the lessee with possession of the pier to the a This section is cited in § 1068. '«= 2 Salk. 459. '=» 59 N. Y. 28. See also Moody v. '™ Swords v. Edgar, 59 N. Y. 37. New Yorlc, 43 Barb. (N. Y.) 282; See also Whalen v. Gloucest6»k .6 N. s. c. 34 How. Pr. (N. Y.) 288. Y. S. C. (T. & G.) Ibw "" L. R. 8 C. P. 401. 1050 A3 BETWEEN LANDLORD AND TENANT. [2d Ed. exclusion of the public, for the reason that a public pier is a part of the public highway and must therefore be devoted to the public use, — yet the effect of such a transfer is to subrogate the lessee to the place of the municipal corporation, investing him with all the rights and subjecting him to all the duties of that body as the owner of the pier.^"" § 1170. Landlord Liable to a Stranger for Injurious Acts Done by him during the Term. — As explained in the preceding article, ^"^ the landlord may become liable to a stranger, no less than to his ten- ant, for injuries done by the landlord upon, or with reference to, the demised premises during the term. As toward persons who are strangers to the contract of letting, such acts stand on the footing of mere malfeasance. § 1171. Circumstances under which Landlord Not Liable to Guests or Customers of Tenant. — It is impossible to state any rule on this subject which will apply in all cases, except the rule that where the landlord is not liable to the tenant for injuries which may happen to the tenant, in consequence of the dangerous condition of the prem- ises, he will not, under the same circumstances, be liable to a guest or a customer of the tenant, or to any other person lawfully upon the premises. We have had occasion to note numerous cases where the landlord has been held liable for the condition of the premises to persons other than the tenant.^"^ It can not therefore be affirmed, even as a general rule, that a landlord is not so liable. We may start out with the premise that the landlord is presumably not so liable, and illustrate this statement by a number of holdings. The landlord was held not liable to the guest of his tenant in the case of a mere letting without any agreement to repair, for injuries received by the guest because of the defective character of the approaches, upon the theory that the guest was on the premises neither on the express or implied invitation of the landlord,^ "^ a theory which is of doubtful soundness. The duty of providing a safe means of access to the place of business of the lessee, did not rest upon the lessor or the owner of the land from which such access might pass, in the opinion of the same court, so as to render him liable for an injury to a cus- tomer of the lessee.^ ^* The landlord was not liable to a visitor of 'his ■""Radway v. Briggs, 37 N. Y. 256; "'Awte, § 1142. 35 How. Pr. (N. Y.) 422. Contra, "^Anie, § 1156, e* seg. Taylor v. New York, 4 E. D. Smith "^McKenzie v. Cheatham, 83 Me. (N. Y.) 559. Compare Brooklyn v. 543; s. c. 22 Atl. Rep. 469. Brooklyn City R. Co., 47 N. Y. 475; "'Abbott v. Jackson, 84 Me. 449; 57 Barb. (N. Y.) 497; 8 Abb. Pr. s. c. 24 Atl. Rep. 900. (N. S.) (N. Y.) 356. 1051 1 Thomp. Neg.] care of real property. tenant for injuries resulting from a defect in the demised premises, caused by the tenant only.^°^ The lessor of a hotel was not liable to a guest of the lessee for injuries caused by the fall of an awning known to be unsafe, where he was not bound by the terms of the lease to keep the awning in repair.^^" Upon plain grounds, a landlord was not liable to a guest of his tenant for personal injuries sustained by such guest, during the term, from the defective manner in which the ten- ant, after the commencement of the term, had fitted up a portion of the building for use as a hotel, under the agreement of the landlord.^"^ § 1172. Circumstances under which Landlord is Liable to Guests or Customers of Tenant. — On the other hand, many cases are met with where the landlord has been held liable to guests or customers of his tenant. In some of them, a stranger would be held liable for the same act or omission in the same situation. For example, a water company was held liable for injuries to a guest of its employe occupying, as a tenant at will, without a fixed rental, but as a part of his compensa- tion, a dwelling-house upon the property of the company, caused by the escape of water from its standpipe, due to the negligent construc- iM Eyre v. Jordan, 111 Mo. 424. "™ Fellows V. Gilhuber, 82 "Wis. 639. To same effect, see Ten Broeck V. Wells, Fargo & Co., 47 Fed. Rep. 690. "' Glass V. Colman, 14 Wash. 635 ; s. c. 45 Pac. Rep. 310. In the opin- ion of an Appellate Court in New York, the explosion of a hot water heating apparatus in a room in a hotel leased as a railroad depot, raised no presumption of negligence on the part of the lessor, who had charge of the apparatus, nor on the part of the lessee, as toward a wait- ing passenger who was thereby in- jured: Kirhy v. Delaware &c. Canal Co., 46 N. Y. Supp. 777; s. c. 20 App. Div. 473. But the reader is tempted to inquire, if not, why not? - - - A nisi prius court in Ohio has held that a person engaged by a tenant to remove a stove from an attic, who is injured by the fall of a freight elevator into which he was loading the stove, occupies as to- ward the landlord the relation of a bare licensee, which, as already seen {ante, § 946), is little better than that of a trespasser; so that the landlord is not liable for the in- jury thereby sustained by him, in the absence of willful or gross neg- ligence: Burger v. Johnson, 6 Ohio 1052 N. P. 252. But this holding seems to be untenable and unjust. If the tenant was tenant of a part of the building, and the elevator was in the general custody of the landlord, or if the defect in the elevator ex- isted at the time of the letting, — then its maintenance by the land- lord in the defective condition, stood on the footing of a dangerous nui- sance, and he was liaMe to any per- son sustaining damage therefrom. - - Construing a statute in Louis- iana (La. Rev. Civ. Code, arts. 670, 2322), it has been held that a mem- ber of a surprise party visiting the tenant of a building for the purpose of spending an evening in social amusement, can not, for injury by means of a falling gallery, recover damages from the lessor, but that the remedy, if any, would be against the tenant. The statute was con- strued to have been designed for the protection of passers-by, and not for the protection of occupants of the premises or their guests, who, for this purpose, would occupy no better position than the occupants: Mc- Connell v. Lemley, 48 La. An. 1433; s. c. 34 L. R. A. 609; 20 So. Rep. 887. Compare Coupe v. Piatt, 172 Mass. 458. AS BETWEEN LANDLORD AND TENANT. [2d Ed. tion and care of such pipe. Here, the standpipe was held to be upon adjoining premises, and was not a part of the premises occupied;^"' so that a coterminous proprietor would have been held liable under the same condition. It has been held that a landlord is liable to a visitor of the lessee of a tenement, for an injury occasioned by the defective condition of the front steps, where the tenant himself would have been liable if the steps had been included in the tenement let, but not oth- erwise. But, with regard to the rights of those coming upon the premises without invitation, express or implied, but as mere volun- teers, the view of the court was that the law imposes no affirmative obligation and creates no act of duty. The landlord merely gives them free license and permission to use his premises, and impliedly agrees that he will not set traps for them or wrongfully do anything to their injury.^"" In another case the plaintiff, who had, in the course of business, called on the tenants of one of the floors of an office building, was injured through a defect in the staircase, and recovered damages from the landlord, on the ground that it was the duty of the landlord to keep that part of the premises in a reasonably safe condi- tion, for the use of those who did business with his tenants,^ ^^ — a principle which we have already had occasion to consider.^^^ And it has been broadly and well laid down, that the lessor of a business block owes to persons visiting his tenants on legitimate business, the duty of exercising reasonable care and prudence to provide a safe and suitable entrance, and to have the approach thereto so constructed and maintained that visitors will not be liable to step into dangerous pit- falls by reason of misleading doors and deceptive landings.^'^ An- other court has made a holding which reverses the general rule that the obligation to repair is upon the tenant, and not upon the landlord, by holding that a landlord is liable to a hoarder on premises which have been leased for a boarding-house, for injuries sustained by the boarder by reason of the dangerous condition of the premises, which condition was known to, or might have been known to the landlord by the exercise of reasonable care and diligence on his part, but was not known to the boarder. ^''^ "* Defiance Water Co. v. Olinger, of the landlord is somewhat dlffer- 54 Ohio St. 532; s. c. 32 L. R. A. ent from that where he lets an en- 736; 35 Ohio L. J. 350; 44 N. E. Rep. tire building or field: Ante, § 1138, 238. et seq. ™Hart V. Cole, 156 Mass. 475. It ™ Miller v. Hancock (1893), 2 Q. is perceived that this case was a B. 177. case where there was a letting of a "' Ante, § 1137, et seq. portion of a building, the landlord '"Foren v. Rodick, 90 Me. 276; s. retaining general control of a por- c. 38 Atl. Rep. 175. tion of it, and letting compartments '" Stenberg v. Wlllcox, 96 Tenn. of it to different tenants. In which 163 ; s. c. 34 L. R. A. 615 ; 42 Cent. L. case, as already seen, the liability J. 288; 33 S. W. Rep. 917; afE'd on 1053 1 Thomp. Neg.] care of keal property. § 1173. Liability of Landlord to Employes of Lessee. — Employes of the lessee are to be deemed rightfully on the premises and by the implied consent of the lessor, under principles already considered.^'* It follows that the lessor owes them the duty of not subjecting them to harm by reason of any dangerous defect in the demised premises existing at the time of the demise, of which he had knowledge, or which he might have discovered by the exercise of ordinary or reason- able care; and the further duty of exercising ordinary or reasonable care to the end of not committing any act or omission during the term which shall subject them to harm. If the demised premises consist of a building let for business purposes, and, during the term, the land- lord, against objections of the tenant, places in the leased building a shaft to transmit power to another building, — he becomes, in so doing, a trespasser ; he has no greater right to do such an act than any other coterminous owner would have; and he can not' therefore relieve himself from liability to an employe of the tenant who is injured by coming in contact with the shaft, on the ground that the employe was not properly in the vicinity of the shaft at the time.^'^ A lessor of a building who thus, during the term, puts a revolving shaft therein for the purpose of transmitting power to another building, is bound, under the ordinary principles of social duty, to fence it, or to use other proper means to protect the employes of his lessee from danger from it when they are rightfully in its vicinity.^'® Article III. Other Matters. Section Section 1177. Reciprocal rights and duties 1181. Contributory negligence of the of tenants of the same land- tenant or person injured, lord. 1182. Circumstances under which 1178. Illustrations of such recipro- negligence will not he im- cal rights and duties. puted to the tenant or to the 1179. Landlord not liable for Inju- person injured as matter of ries inflicted by one tenant law. upon another. 1183. Right of landlord to enter and 1180. Right of action by tenant for abate nuisances. injury to the demised prem- ises. rehearing in 96 Tenn. 328; s. c. 34 92; s. c. 32 Am. Rep. 282; Gilloon v. S. W. Rep. 420. See further on this Reilly, 50 N. J. L. 26. subject the following cases: Read- "'Ante, § 980. man v. Conway, 126 Mass. 374; ™ Davis v. Pacific Power Co., 107 Looney v. McLean, 129 Mass. 33; Cal. 563; s. c. 40 Pac. Rep. 950. s. c. 37 Am. Rep. 295; Learoyd v. ""Davis v. Pacific Power Co., 107 Godfrey, 138 Mass. 315; Gordon v. Cal. 563; s. c. 40 Pac. Rep. 950. That Cummings, 152 Mass. 513; s. c. 9 L. the lessor of a wharf is not liable R. A. 640; Camp v. Wood, 76 N. Y. for the death of a servant of the 1054 AS BETWEEN LANDLORD AND TENANT. [2d Ed, § 1177. Reciprocal Rights and Duties of Tenants of the Same Landlord. — As between different tenants under the same landlord, the question of liability for injuries arising from the condition of the premises is always one of negligence in the use. The negligence may consist in either the careless use of well-constructed apparatus, or in the use of apparatus which the tenant had reason to know was in a condition unfit for use. In the absence of an express contract defining their reciprocal duties, none is implied. They owe to each other the same and no higher duty in the use of their premises than every man owes to his neighbor.^'^^ And the rule is the same where the landlord occupies the premises in common with his tenant.'^''^ § 1178. Illustrations of such Reciprocal Rights and Duties. — For example, it is the duty of the tenant of one floor to exercise reasonable care in making alterations in the part of the premises occupied by him, to the end of avoiding injury to other tenants of the same build- jjjg_i7 9 rpj^g fg^idfif Q^ ^,j upper floor is liable to the tenant of the floor below him for damages to the goods of the latter, caused by an overflow of water from faucets left open upon the floor of the tenant of the upper floor upon locking up his rooms at night,^*" unless the upper tenant can show that the injury was the result of the mischiev- ous or negligent act of some third person not under his control.^*'- lessee, caused by the breaking of a 416; Rosenfield v. Arrol, 44 Minn, rotten plank, in the absence of evi- 395; s. c. 46 N. W. Rep. 768. dence as to how long the wharf had "' Spencer v. McManus, 82 Hun been growing unsafe, and that he (N. Y.) 318; 63 N. Y. St. Rep. 500; ought to have known of it at the s. c. 31 N. Y. Supp. 185 (not liable to time of letting, — see State v. Boyce, the landlord). One court has held 73 Md. 469; s. c. 21 Atl. Rep. 322. that negligence on the part of the '" Ea,kin v. Brown, 1 E. D. Smith occupant of an upper floor of a build- (N. Y.) 36; Killion v. Power, 51 Pa. ing can not be inferred from the St. 429; Moore v. Goedel, 34 N. Y. fact that he left a faucet over a 527; Carstairs v. Taylor, L. R. 6 basin open, and the water escaped Exch. 217; Ross v. Fedden, L. R. 7 therefrom, from which damage ac- Q. B. 661. See also Parrott v. Bar- crued to the goods of the occupant ney, 2 Abb. C. Ct. (U. S.) 197; 1 of the lower floor, where the outlet Deady 405; 1 Sawyer (TJ. S.) 423; of the basin was suflicient to carry s. c. sub nom. The Nitro-Glycerine off all the water that would run from Case (Parrott v. Wells, Fargo & the faucet, and the escape of the Co.), 15 Wall. (U. S.) 524; 1 Thomp. water to the lower floor was due to Neg., 1st ed., p. 42. a defect in the plumbing in the up- "' Kaiser v. Hirth, 46 How. Pr. per floor, of which the occupant of (N. Y.) 161; Glickauf v. Maurer, 75 that floor had no notice, and he be- lli. 289. ing under no obligation to repair "'Quigleyv. H. W. Johns &c. Co., any defect in the plumbing beyond 26 App. Div. 434; s. c. 50 N. Y. Supp. his own premises: Lane v. Scagle, 98. 67 Vt. 281; s. c. 31 Atl. Rep. 289. '™ Simon-Reigel Cigar Co. v. Gor- The soundness of this decision is don-Burnham Battery Co., 20 Misc. doubtful. Circumstances under (N. Y.) 598; s. c. 46 N. Y. Supp. which the plaintiff, who was a ten- 1055 1 Thomp. Neg.] care of keal property. § 1179. Landlord not liable for Injuries Inflicted by one Tenant upon Another. — Whatever may be the rights of one tenant as against another, it is clear that the landlord can not be made liable to one of the tenants for an injury happening to him in consequence of the neg- ligent use to which another tenant has put some portion of the de- mised premises; though the landlord may be so liable if, at the time of the letting, the condition of such portion of the demised premises was such that they could not be used by the tenant to whom they were let, without injuring the other tenant.^ *^ § 1180. Eight of Action by Tenant for Injury to the Demised Premises. — The tenant has a right of action against third persons for injury to his premises, because his beneficial interest in the property is thereby impaired; and furthermore, because, in the absence of a special agreement with his landlord, he is bound to keep the premises in repair.^*^ In case of an injury to real property, both the landlord and the tenant may have an action against the tort-feasor, — the one for an injury to his freehold^, the other for an invasion of his posses- sion.^^* Thus, a tenant can maintain an action against third persons for injuries to himself and family, resulting from a nuisance}^^ So, if an ownership of the crop is in the tenant, and it is destroyed by the negligence of a third party, the tenant can recover its value as dam- ages, without reference to any arrangement under which the landlord is to have some of it in lieu of rent.^*" This right of action which the ant of the chambers of a building, the same landlord In the store be- had a right of action against the low. It was held that B. had no tenant who was tenant of the first right of action against the landlord, floor and basement, for an injury the theory being that the waste pipe sustained by the plaintiff through of the faucet was not large enough the act of the lower tenant in leav- to carry off all the water if the ing open the trap-door of a common faucet was left running, yet that it hoistway: Kent v. Todd, 144 Mass. was negligence in the upper tenant 478. One tenant has no right of ac- to leave it running, and the land- tion against the landlord who, in lord did not insure against his neg- violation of his lease to such ten- ligence, and was not bound to con- ant, leases the property to another struct his building so as to reduce tenant, where the other tenant to a minimum the possibility of turns out the cattle of the former damage from such a negligent act tenant, and repairs the fence so that or omission: McCarthy v. York they can not get back: McAllister County Savings Bank, 74 Me. 315; V. Sanders (Tex.), 41 S. W. Rep. 388 s. c. 43 Am. Rep. 591. (no off. rep.). "^Ulrich v. McCabe, 1 Hilt. (N. 182 pqp example, a landlord set in Y.) 251; Hardrop v. Gallagher, 2 B. an upper room, let to this tenant D. Smith (N. Y.) 523. A., a wash howl, the waste pipe of ''^ Hay v. Cohoes Co., '2 N. Y. 159; which was not large enough to carry s. c. 1 Thomp. Neg., 1st ed., p. 72. off all the water if the faucet was ^»=Lockett v. Fort Worth &c. R. left running. Through the negli- Co., 78 Tex. 211; s. c. 14 S. W. Rep. gence of A. the faucet was left run- 564. ning all night, and the tvater in- ^*" Texas &c. R. Co. v. Bayliss, 62 jured the goods of B., a tenant of Texas 570. 1056 AS BETWEEN LANDLORD AND TENANT. [2d Ed. lessee possesses to recover damages for an injury to his possession, may be exercised after the termination of the lease, where the lease contains an express reservation of all his rights and claims; and it may be exercised by him where the landlord sells the leased property during the pendency of the lease.^*^ This right of action by the lessee can not be affected by an agreement between the lessor and the party against whom it exists. Thus, a tenant is not precluded from recovering double damages, under a statute, from a railroad company, for his domestic animals killed through its failure to fence its track, because of an agreement, of which the lessee was ignorant, between his landlord and the railroad company, exempting the latter from his duty to fence, the landlord agreeing not to make any claim for stock killed. ^»» § 1181. Contributory Negligence of the Tenant or Person In- jured. — Assuming that the law of the jurisdiction, or the terms of the contract between the parties are such that the tenant, or a guest or customer of the tenant, or other person lawfully upon the premises by invitation of the landlord or tenant, express or implied, — would other- wise have an action against the landlord for an injury received in con- sequence of negligence in allowing the premises to be and remain in an unsafe condition, — yet here, as in other cases, the contributory negligence of the tenant or other person injured will bar a recovery. ^^* It was so held where a visitor of the tenant, passing down an unfa- miliar stairway in the darh, without waiting for a companion who was familiar with it, and without seeking a light, and without using any precautions except to feel the way with hands and feet, fell and was injured, and then sought to recover damages from the landlord on account of his negligence in failing to light the stairway;^'" where a tenant knew that the hallway was not open to passage the day before ; that men were still at work in it, replacing the floor, and nevertheless ventured into the hallway in the dark and was injured by coming in contact with an obstruction therein ;^°^ where the tenant of one house was injured by falling on the steps of another house belonging to her landlord, which she had entered without invitation, where the danger was patent, although the landlord had taken away steps that were safe, and replaced them by other that were not;^°^ where a boarder in '"Payne v. James, 42 La. An. 230; ""Gleason v. Boehm, 58 N. J. L. s. c. 7 So. Rep. 457. 475; s. c. 32 L. R. A. 645; 43 Cent. >«« Thomas v. Hannibal &c. R. Co., L. J. 138; 34 Atl. Rep. 886. 82 Mo. 538. "'Mahon v. Burns, 13 Misc. (N. '»»Moyiiiiian v. Allyn, 162 Mass. Y.) 19; s. c. 68 N. Y. St. Rep. 161; 270; s. c. 38 N. E. Rep. 495; 27 Chi- 34 N. Y. Supp. 91. cage Leg. News 120. "' Sheridan v. Krupp, 141 Pa. St. 564; 8. c. 21 Atl. Rep. 670. VOL. 1 THOMP. NEG. — 67 1057 1 Thomp. Neg.] care of real property. the house of the tenant walked, without any excuse, into a darh passage into which he had never been, and fell because of a break in the steps located therein;^** where the tenant sustained an injury while at- tempting to pass from the demised house, when the steps leading there- from had been, to the tenant's knowledge, removed by the landlord to make necessary repairs, even though there was an emergency on the part of the tenant to leave at the particular time and place, which, however, could not have been foreseen by the landlord in time to pre- pare temporary facilities' for a safe exit.^°* Again, upon a doctrine already stated,^"^ if a tenant, whose landlord has agreed to put the premises in repair, but has failed to do so, knows that his property will be exposed to injuries from storm or otherwise, if left on the premises without such repairs being made, — he has no right to take the chances, and if his property is injured, visit the damages upon the landlord.^"* § 1182. Circumstances under wliich Negligence will Not be Im- puted to the Tenant or to the Person Injured as Matter of Law. — It is an obviously sound conclusion that the tenant of part of a building is not required to exercise as high a degree of care to discover the un- safe condition of the part not occupied by him as the landlord is to remedy and recover such condition, — especially where the landlord occupies such other part of the building.^^^ A tenant was not deemed guilty of contributory negligence as matter of law, where she fell down the stairs leading to her apartment by reason of her foot catching on a nail projecting from one of the steps which she was sweeping under an agreement with the landlord, nor because she overlooked the par- linular nail when she endeavored to remove the nails in such steps.^°* The employe of a tenant was not deemed a mere volunteer, without right to protection from the landlord, in going to the basement door of the leased building to remove thistles from his hands, where such place afforded the principal available place for such a purpose, on ac- count of light, and it was necessary to remove the thistles before he could continue his work.^"" The wife of a tenant was not, as matter of law, guilty of contributory negligence, precluding a recovery against the landlord of damages for personal injuries caused by the breaking "'Kammerer v. Gallagher, 58 111. (N. Y.) 441; s. c. 56 N. Y. Supp. 423. App. 561. '"Quigley v. Johns Man. Co., 26 '"Alexander v. Rhodes, 104 Ga. App. Div. (N. Y.) 434; s. c. 50 N. Y. 807; s. c. 4 Am. Neg. Rep. 623; 30 S. Supp. 98. E. Rep. 968 (distinguishing John- "» Idel v. Mitchell, 5 App. Div. (N. son V. Collins, 98 Ga. 271). Y.) 268; s. c. 39 N. Y. Supp. 1. ^'^Ante, §§ 184, 185, 186. '»» Davis v. Pacific Power Co., 107 ""Reiner v. Jones, 38 App. Div. Cal. 553; s. c. 40 Pac. Rep. 950. 1058 A3 BETWEEN LANDLORD AND TENANT. [2d Ed. of a slat of the roof of the premises while she was there hanging out clothes, because she knew the condition of the roof, if it appeared to her, as a reasonably prudent person, that she might safely go upon it with the exercise of care.^"" Whether or not a tenant was guilty of contributory negligence in failing to discover a hole about a foot deep made by the landlord, without her knowledge, in the walk leading from the house to the sidewalk, where she fell into the hole in attempting to pass from the house to the sidewalk, — was held to be a question for the jury, on evidence that it was dark, and that there was nothing to indicate that the walk had been disturbed other than the removal of the bricks between the hole and the house.^"^ § 1183. Bight of Landlord to Enter and Abate H'uisances. — In a work on negligence, we are not concerned with the question of the right of the landlord to enter the demised premises during the term for the purpose of abating nuisances existing thereon. He may have such an implied right with respect to nuisances created by himself, before the commencement of the term', the continuance of which might subject him to civil actions, or even to a criminal prosecution.^"^ But it is believed, on principle, in the absence of any stipulation in the lease qualifying this rule, that in respect of nuisances created by the tenant, he has the same right to enter and abate them that any other adjoining owner annoyed by them would have, and no more.^"' It may be added in this connection, that a mere entry by a landlord upon leased premises before the termination of the lease, will not give the tenant a right of action against the landlord, unless, in so entering, the landlord does some damage to the property or possession of the tenant, or unless his conduct amounts to an eviction.^"* ^Karlson v. Healy, 38 App. Div. plaintifE to the injury is erroneous, (N. Y.) 486; s. c. 5 Am. Neg. Rep. although the court has also instruct- 701; 56 N. Y. Supp. 361. ed them that a want of ordinary ^^ Wentworth v. Duffy, 68 Mo. care on the part of the plaintiff will App. 513. Under the Georgia Code, defeat a recovery: Miller v. Smythe, which places upon the landlord the 95 Ga. 288; s. c. 22 S. B. Rep. 532. obligation to make necessary re- That a tenant is not guilty of con- pairs (Ga. Code, § 2972), the con- tributory negligence in failing to tributory negligence of the tenant, carry with him a ligM when going not amounting to a want of ordi- down stairs, — see Feinstein v. Ja- nary care, will not preclude a recov- cobs, 15 Misc. (N. Y.) 474; s. c. 37 ery for an injury through the fail- N. Y. Supp. 345; 72 N. Y. St. Rep. ure of this duty on the part of the 698. landlord, but is to be considered ^ Ante, § 1158. only in reduction of damages: Mil- ™' It has been held that if a tenant ler v. Smythe, 95 Ga. 288; s. c. 22 S. cause a nuisance upon the premises E. Rep. 532. In that State it is held by leaving meat to decay there, the that in such a case an unqualified landlord has a right to abate it: instruction to the jury that they Kurrus v. Seibert, 11 111. App. 319. shall reduce the damages to the ex- =" Brown v. McKimmie, 102 Mich, tent of the contribution of the 35; s. c. 60 N. W. Rep. 298. 1059 TITLE NINE. NEGLIGENCE IN RELATION TO THE HIGH- WAY. 1061 TITLE NINE. NEGLIGENCE IN RELATION TO THE HIGHWAY.* Chapter XXXIX. Obstructing and Endangering Travel on the Public Highway, §§ 1187-1281. Art. I. General Doctrines, §§ 1187-1196. Art. II. Obstructions and Dangers Created by Abutting Owners, §§ 1199-1229. Art. III. Obstructions and Dangers from Telegraph Poles and Wires Erected in the Public Streets and Highways, §§ 1233-1252. Art. IV. Other Obstructions and Dangers, . §§ 1255-1268. Art. V. Contributory Negligence of the In- jured Traveller, §§ 1271-1274. Art. VI. Eight to Maintain Private Action Depends upon Special Damage, ....§§ 1276-1281. XL. The Law of the Eoad, §§ 1283-1339. Art. I. Collisions of Teams and Vehicles with Each Other, §§ 1283-1292. Art. II. The Law Applicable to Highways in Various Situations, §§ 1294-1318. Art. hi. Contributory Negligence of the Person Injured, §§ 1322-1332. Art. IV. Bicycle Law, ....,..§§ 1335-1339. CHAPTER XXXIX. OBSTRUCTINGf AND ENDANGERING TRAVEL ON THE PUBLIC HIGHWAY. Article I. General Doctrines. Section Section 1187. Scope of this chapter. 1189. Notice or knowledge of the 1188. When ground of liability nui- nuisance. sance and when negligence. * This title does not include the Officers, etc., in Relation to the subject of Railroads in Streets; Highway; nor Railway Injuries at nor the Negligence of Municipal Highway Crossings: subjects which Corporations, Public Boards, Public the author intends to treat in the next volume. 1063 1 Thomp. Neg.J negligence in relation to the highway. Section Section 1190. Obligation of obstructor of 1194. No obligation to remove ob- hlghway to repair or make structions existing on land safe. dedicated for highway. 1191. Further of this obligation. 1195. Existence of unauthorized ob- 1192. When failure of obstructor to struction prima facie evi- repair is negligence as mat- dence of negligence. ter of law. 1196. Injuries caused by negligence 1193. In case of obstructions ren- in failing to comply with dering excavations more dan- statutes and ordinances, gerous. § 1187. Scope of this Chapter. — This chapter does not include ob- structions or dangers resulting from steam or street railroads, whether crossing the public highways or built upon them, or built so near them as to endanger travel by frightening horses or other animals. These matters are reserved for immediate treatment in the next volume. § 1188. When Ground of Liability Nuisance and When Negli- gence.* — In dealing with the subjects which follow in this chapter, it is necessary constantly to discriminate between cases where the ground of liability is nuisance and where it is negligence. If, on any ground, the obstruction of the public highway is unlawful in itself, then the question of the care or skill which has been employed by the obstructor in protecting the public from being injured by it, becomes immaterial: he is the author of a public nuisance, and if spe- cial damages have thereby been inflicted upon any one, he is liable in law to pay those damages. But where the obstruction is not in itself unlawful, not a public nuisance, — a thing which often happens in the operations of building,^ in the occupation of city streets by railway tracks,^ and in other cases, then the ground of liability is not the commission of a public nuisance inflicting special damage, but the failure to use reasonable care and shill in the exercise of the lawful right of occupying the street. For example, where the authorities of the city of New York without any lawful right so to do, assumed to grant a permit to a grocer to stand his delivery wagon in front of his grocery store, and, while so standing with the thills tied up, they fell, killing a passer-by on the sidewalk, the city was held liable' in an action for damages on the ground that it was the author of a nuisance, and without reference to the question of negligence.^ So, where there a This section is cited in §§ 99, 532; s. c. 21 N. E. Rep. 700; 4 L. R. 1055,1200,1215,1226. A. 406; 23 N. Y. St. Rep. 509; 17 ""Post, § 1222. Wash. L. Rep. 490; reversing s. c. 43 * See next volume. Hun (N. Y.) 345. ° Cohen v. New York, 113 N. Y. 1064 OBSTRUCTING AND ENDANGERING TRAVEL. [2J Ed. was an unprotected depression four feet Cieep in a sidewalk, this was in itself a nuisance, rendering one who purchased and demised the property in that condition liable for an injury resulting therefrom.* It is perceived that this rule of law is tantamount to making the author of the public nuisance an insurer against special damages from his unlawful act; consequently, in all these cases, it becomes a ques- tion of the very first importance whether the occupation or use of the street in which the damage has happened is unlawful, that is to say, a public nuisance per se. But where the obstruction is not in itself unlawful, although it may become dangerous by reason of negligence in failing properly to secure it, then the author of it is not an insurer against damages which may happen to those who use the street, in consequence of it, but is liable only on the principle of negligence, — that is, in consequence of his failure to exercise reasonable care to prevent such catastrophes. Where, for example, the action proceeded on the theory of negligence, and the injury complained of was that a window-screen had been insecurely fastened, so that it was detached, and fell upon the plaintiff, it was held that an instruction advising the jury that "it is the duty of every one who occupies the highway to do so with such care that no injury can happen to any one," — was erroneous, because it put upon persons occupying the highway a greater degree of care than that which the law imposes upon them,^ which falls far short of holding them liable as insurers. § 1189. BTotice or Knowledge of the Nuisance.^ — If the defect in or obstruction of the highway which the defendant is, by statute or otherwise, obliged to remove, has been the result of the mischief of third persons, then, as a predicate to any right of action against the defendant, it will be necessary to allege and prove either that the de- fendant had notice of the defect or obstruction, or might by the exer- cise -of ordinary or reasonable care have acquired notice of it, for a sufficient time prior to the accident, to have enabled the defendant to remove or repair it.* But if the defendant is himself the author *McGrath v. Walker, 64 Hun (N. Smith, 48 Wis. 265. In this case the Y.) 179; s. c. 46 N. Y. St. Rep. 158; injury proceeded from a slippery 18 N. Y. Supp. 915. sidewalk, which had been made slip- " Collins v. Leaf ey, 124 Pa. St. 203 ; pery by paint placed thereon by s. c. 16 Atl. 'Rep. 765; 23 W. N. C. third persons, and it was held that 264. Compare Bennett v. Hazen, 66 whether the defendants, who were Mich. 657; s. c. 10 West. Rep. 219; under the duty of keeping the side- 33 N. W. Rep. 876, where the court walk in repair by statute, knew of was equally divided. it or were chargeable with notice a This section is cited in §§ 1196, by reason of the length of time the 1215, 1216. defect had continued, — was a ques- " Stevenson v. Joy, 152 Mass. 45 ; tion for a jury. s. c. 25 N. E. Rep. 78; Morton v. 1065 1 Thomp. Neg.J negligence in kelation to the highway. of the defect, then, manifestly, the question of notice cuts no figure, because it is a public nuisance and an action against him proceeds upon his original wrong-doing regarding it.^ Moreover, where a private person or a corporation makes an excavation in a highway, and thereby becomes obliged to guard it so as to prevent the public from falling into it, it will be no defense that the author of the excavation may not have had notice of a deficiency in the means which it took to guard it "The obligation is imperative so long as the excavation exists; anA therefore notice that it is not sufficiently protected is not a condition of legal responsibility for injuries from the excavation."^ In respect of liability for an obstruction in the highway which amounts to a pub- lic nuisance, a continuer of the nuisance stands under the same liabil- ity to any person injured thereby as the original author of it, and is not entitled to notice of its existence, and the want of notice of its existence w;ll not be a defense to an action by a person injured there- by.® Therefore, a complaint in an action against a railroad company for personal injuries resulting from a defect in a public highway, which its predecessor in title in constructing the railroad had failed to restore to its former useful condition as near as might be, as re- quired by a statute, was held to state a good cause of action without alleging notice of the defect.^" ' In such a case it has been well laid down that his liability proceeds upon the ground of his being the continuer of a nuisance, and that the plaintiff has suffered injury from it without fault on his part; and hence, evidence of the care used in selecting a watchman to warn persons approaching the ditch, or of the general character or reputation of the watchman at the time of his employment, is immaterial and properly excluded: South &c. Ala- bama R. Co. V. Chappell, 61 Ala. 527. « Flynn v. New York &c. R. Co., 49 N. y. Super. 60, 63. ".Matthews v. Missouri &c. R. Co., 26 Mo. App. 75; Vaughan v. Buffalo &c. R. Co., 72 Hun (N. Y.) 471; s. c. 54 N. Y. St. Rep. 782; 25 N. Y. Supp. 246. It was conceded that it is the rule that, in order to make the land- owner liable for damages happening to another land-owner from a nui- sance existing upon the ground of the former, prior to its purchase, he must have had notice or knowledge of the nuisance: citing Pinney v. Berry, 61 Mo. 359; Dickson v. Chica- go &c. R. Co., 71 Mo- 575. 1° Vaughan v. Buffalo. 72 Hun (N. Y.) 471; s. c. 54 N. Y. St. Rep. 782; 1066 25 N. Y. Supp. 246. The court dis- tinguished Conhocton Stone Road Co. V. Buffalo &c. R. Co., 51 N. Y. 573 and Ahern v. Steele, 115 N. Y. 203; s. c. 22 N. E. Rep. 193, — which were actions against successors in title proceeding on the theory of their being the continuers of nui- sances. As to notice by a municipal corporation to an abutting owner under an ordinance requiring such owners to keep sidewalks in repair, of the defective condition of the sidewalk in front of his premises, so as to give a right of action over against him by the 'city in case of an injury to a traveller from that cause, — see Lynch v. Hubbard, 101 Mich. 43; s. c. 59 N. W. Rep. 443; Taylor v. Lake Shore R. Co., 45 Mich. 74. That no liability exists at common law, either on the part of the municipal corporation or abutting land-owners for the ab- sence of a sidewalk, or for the neg- lect to repair one which is in exist- ence, — see Detroit v. Blakeby, 21 Mich. 84; Taylor v. Lake Shore R. Co., 45 Mich. 74; Detroit v. Chaffee, 70 Mich. 80; Lynch v. Hubbard, 101 Mich. 43; s. c. 59 N. W. Rep. 443. OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. § 1190. Obligation of Obstructor of Highway to Eepair or Make Safe.^ — Whenever a private person or corporation, in prosecuting any work for his or its private gain, obstructs a public highway, such pri- vate person or corporation is bound to restore the same, so that the public easement shall not be substantially impaired or endangered.^^ The books afford many illustrations of this rule. Thus, a person or corporation cuts a canal or mill-race across a highway. He or it must bridge the same in a substantial manner, and keep the bridge in safe repair. ^^ For special damages happening through a failure of this duty, he or it is liable.^^ So, the owner of a railway crossing a high- way must restore the highway, by a bridge or otherwise; and, if en bridge, must keep the bridge in repair, or pay to any person the dam- ages flowing from this neglect.^* So, if one digs an excavation in the highway, and negligently fills it up, or fails properly to restore the street, so that an animal or a person in crossing it is injured, he must pay damages. ^° So, one who, with the knowledge of and without ob- jection by a municipal corporation, constructs an approach for vehicles across a ditch between the sidewalk in front of his property and the crown of the highway, is liable for injuries sustained through want of repair of such approach by one using it to cross the highway.^" So, while an abutting owner is not, in general, liable for failure to repair the sidewalk,^ ^ yet if he, for his own private convenience, construct a coal-hole or other area under it, he must restore it and keep it safe for the public or pay damages for any injury happening through his failure so to do.^* One who opens a highway to construct a sewer, and properly refills the same is not liable to damages for injuries caused by the subsidence of the filling occurring months afterwards, since he is under no obligation to keep the highway in repair.^* a This section is cited in §§ 354, Wis. 269; Roberts v. Chicago &c. R. 1225, 1238. Co., 35 Wis. 679; post, § 1225, et "Dygert V. Schenclf, 23 Wend. (N. seg. Y.) 446; Hays v. Gallagher, 72 Pa. "Reeves v. Larkin, 19 Mo. 192; St. 136; Duffy v. Chicago &c. R. Co., Hyams v. Webster, L. R. 4 Q. B. 138 32 Wis. 269; Roberts v. Chicago &c. (affirming s. c. L. R. 2 Q. B. 264); R. Co., 35 Wis. 679. s. c. 8 Best & S. 272; 36 L. J. (Q. B.) "Dygert v. Schenck, supra; Rex 166; 38 L. J. (Q. B.) 21; 16 L. T. V. Kent, 13 East 220; Rex v. Lind- (N. S.) 118; 17 Week. Rep. 232; sey, 14 East 317. Compare Mead- Drew v. New River Co., 6 Car. & P. ville V. Erie Canal Co., 18 Pa. St. 66. 754; Dillon v. Washington Gas- " Bow-Bridge v. Le Prior, 1 Roll. Light Co., 1 McArthur 626. Abr. 368, tit. "Bridges," pi. 2; Dy- "Hopkins v. Owen Sound, 27 Ont. gert V. Schenck, supra; Phcenixville Rep. 43. V. Phoenix Iron Co., 45 Pa. St. 135; "Fulton v. Tucker, 3 Hun (N. Y.) Perley v. Chandler, 6 Mass. 454; 529; s. c. 5 N. Y. S. C. (T. & C.) 621. Woodring v. Forks Township, 2SPa. '"Posf, § 1199, et seg. St. 355. '" Hyams v. Webster, L. R. 4 Q. B. "Hays V. Gallagher, 72 Pa. St. 138. 136; Duffy v. Chicago &c. R. Co., 32 1067 1 Thomp. Neg. ] negligence in relation to the highway. § 1191. Further of this Obligation.^ — So, one who constructs and maintains, for an unreasonable length of time, a bridge as a substi- tute for a sidewalk, may be held liable, on the ground of negligence, to a traveller injured in consequence of a V-shaped opening in a step leading to the bridge, which has been allowed to exist there for several days, the step being entirely unlighted; nor will the author of the nuisance be relieved from liability by the fact that no complaints have been filed with the department of public works.^" So, if a cor- poration, whose canal has cut off a highway, restores the public ease- ment by means of a swivel-bridge, it must keep it guarded or lighted, so that a traveller shall not walk into the canal at night, when it is turned to admit the passage of boats.^^ But a person or corporation thus obstructing a highway is under no greater duty than to keep in repair a sufficient way, as it existed before it was -obstructed. If the public authorities afterwards lay out a broader highway, and build a larger bridge over it, the obstructor will not be liable for not keeping such larger bridge in repair. ^^ All have a right to travel upon a pub- lic river on the ice, and if any one cuts holes through the ice upon or near the place where there has been a winter-way for twenty years, he is liable to the payment of all damages sustained thereby by those trav- elling upon such, without carelessness or fault on their part.^^ The same liability attaches to a person who, as purchaser or lessee under covenants to repair, comes into the possession of premises in which a nuisance exists dangerous to travellers on the highway; he must re- move the nuisance or pay damages to any one specially injured there- by.^* a This section is cited in §§ 354, sustained by one using the street, 1225. by reason of an opening left in the ^ Fischer v. Franke, 21 App. Div. roadway, — the court finding that it (N. Y.) 635; s. c. 47 N. Y. Supp. 161. was not the act of the defendant: The action was prosecuted on the Morgan v. Morley, 1 Wash. 464; s. c. ground of negligence in construction 25 Pac. Rep. 333. Case where a and maintenance, and not on the city railroad company was sued for ground of nuisance, and hence no- an accident alleged to be due to its tice to the city was deemed imma- failure to keep its track in repair, terial. and where its defense was that the ^ Manley v. St. Helens Canal Co., depression in the track which 2 Hurl. & N. 840. And see Wiggins caused the accident was due to the V. Boddington, 3 Car. & P. 544. negligence of the builders of adja- '' Phoenixville v. Phoenix Iron Co., cent houses, and where it was held 45 Pa. St. 135. erroneous to take from the jury the '^ French v. Camp, 18 Me. 433. inquiry who caused the depression ^ Coupland v. Hardingham, 3 and what was the cause of the in- Camp. 398; Jarvis v. Dean, 11 J. B. jury: Citizens &c. R. Co. v. Ketch- Moo. 354. See the last note to the am, 122 Pa. St. 228; s. c. 15 Atl. preceding chapter. Circumstances Rep. 733; 46 Phila. Leg. Int. 149; under which the grantee of one who 22 W. N. C. 419. A contractor, who had received a grant from a city to leaves piles of sand and gravel in a maintain a wharf in the public street on a dark night, with no street was not liable for damages lights other than those placed upon 1068 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. § 1192. When Failure of Obstructor to Eepair is Negligence as Matter of Law. — In New York, the doctrine appears to be established that one who digs a ditch or other excavation in a public street must keep it properly guarded at his peril, and is liable, as matter of law, to any person who, without fault on his part, falls into it and is in- jured. This conclusion is founded upon the idea of the paramount right of the public to a safe and unobstructed use of the street, and of the inherent wrongfulness of any interference with this right.^^ And this is so, irrespective of any permission given by the public authori- ties to do the particular work.^^ The same rule has been declared in Maryland, and reiterated with force^' in a case where a person had fallen into a vault which had been constructed under a sidewalk, in violation of an ordinance of the city. "The doing of an unlawful act subjects the doer to every consequence which flows from it. This is a principle of universal operation, and founded in good sense and pub- lic justice. He stands in a different light from one who does a legal act, but does it so imperfectly that it may occasion injury. In the one case, there is a positive and reckless contempt and defiance of the commands of the law ; whilst in the other, a mere carelessness, which, however culpable, is free from the charge of willfulness."^' The Supreme Court of Illinois has laid down a rule which, in practice, would probably work out substantially the same results, namely, that when one enjoys, as a matter of favor, the privilege of using a part of the highway for his private benefit, — as, by constructing a coal-cellar under his sidewalk, — he is bound to use extraordinary care to see that no injury results from it to others.^' The rule in ISTew York should obviously be limited to strictly unauthorized uses of the highway. The act then being inherently unlawful, the actor is answerable at all events for the injurious consequences which flow from it, and the piles of asphalt twenty feet distant port v. Ruckman, 37 N. Y. 568; 10 in each direction, where the piles of Bosw. (N. Y.) 20; Baxter v. Warner, sand and gravel are nearer the cen- 6 Hun (N. Y.) 585; Cli'fCord v. Dam, ter of the highway than the piles of 19 Alb. L. J. 57 ; Irvin v. Fowler, 5 asphalt, is guilty of negligence so Robt. (N. Y.) 482; Irvine v. Wood, as to render him liable to one in- 51 N. Y. 224; Whalen v. Gloucester, Jured by driving against a pile of 4 Hun (N. Y.) 24; s. c. 6 N. Y. S. C. the sand and gravel so placed: (T. & C.) 135. So held in principle Reilly v. Sicilian Asphalt Pav. Co., in Pfau v. Reynolds, 53 111. 212. 16 Misc. (N. Y.) 65; s. c. 37 N. Y. =" Sexton v. Zett, 44 N. Y. 430. In Supp. 638; 73 N. Y. St. Rep. 232. this case, the judge held that -the ''"Dygert V. Schenck, 23 Wend. (N. leaving of an excavation in the Y.) 446; Sexton v. Zett, 44 N. Y. street unguarded was Ties' Us^ence per 430; Creed v. Hartmann, 29 N. Y. se, and took the question from the 591; Congreve v. Smith, 18 N. Y. 79; jury; and this ruling was affirmed. Congreve v. Morgan, 18 N. Y. 84; =' Irwin v. Sprigg, 6 Gill (Md.) Storrs V. Utica, 17 N. Y. 104; An- 200. derson v. Dickie, 1 Robt. (N. Y.) ^"Owings v. Jones, 9 Md. 108. 238; s. c. 26 How. Pr. 105; Daven- =' Nelson v. Godfrey, 12 111. 20. 1069 1 Thomp. Neg.J negligence in relation to the highway. question of negligence does not arise.'" There is no sound principle which makes a man an insurer of others against injuries which may happen to them in consequence of the doing by him of an act not in itself unlawful.'^ Blasting rocks in a public street, even in the pros- ecution of some public work, is, it seems, a dangerous nuisance, for which an action lies by a person thereby injured.'^ § 1193. In Case of Obstructions Bendering Excavations more Dan- getous. — It has been held by an intermediate appellate court in New York,'' that one who, by an erection made by himself in a public high- way, renders an excavation made on adjoining property by the owner thereof, or by his authority, more dangerous than it otherwise would he, is bound to use proper and reasonable precautions to protect those so using the highway from sustaining injury by falling into such ex- cavation. Thus, where A., a contractor, dug an excavation in or near a sidewalk, and B., another contractor, so placed a pile of bricks as to cut off the light of a street lamp from it, and C, a traveller, in con- sequence of its being thus darkened, fell into it, B. was liable to C* If a person makes an excavation on his land, in dangerous proximity to the street, and at the same time obstructs the street in such a man- ner that a traveller, following his natural instincts and inclinations, and exercising due care and caution, is without any warning, led directly into it, the person making the excavation is liable to the trav- eller for the damages so sustained, irrespective of the question whether the excavation was so near the highway as to be a public nuisance or not; for the obstruction is the primary cause of the accident.'^ § 1194. No Obligation to Remove Obstructions Existing on land Dedicated for Highway. — Where an erection or excavation useful to the proprietor of land exists upon it before or at the time it is dedi- cated to the public as a highway, the dedication is taken to have been made by the land-owner and accepted by the public, suiject to the inconvenience and risk arising from the obstruction; and this rule is of especial force where the right of the public to the way is insen- sibly acquired by user, to the detriment of the rights of the land- owner. '° Upon analogous grounds, where a turnpike was laid out ™ Salisbury v. Herchenroder, 106 ^ The Superior Court of New York Mass. 458; Pfau v. Reynolds, 53 111. City. 212. ** Doyle v. Mulrien, 1 Sweeny (N. "Fisher v. Thirkell, 21 Mich. 1. Y.) 517; s. c. 7 Abb. Pr. (N. S.) (N. ='Ware v. St. Paul Water Co., 1 Y.) 258. Dill. (U. S.) 465. See St. Peter v. ^Vale v. Bliss, 50 Barb. (N. Y.) Denison, 58 N. Y. 416; ante, § 764 et 358. seq. ^° Fisher ^. Prouse, 2 Best & S. 1070 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. across a railroad after the railroad had been established, the duty of providing proper banisters or other safeguards at the crossing lay on the turnpike company, and not on the railroad company. ^^ Commis- sioners of sewers used, for the purpose of their sewerage, an ancient tidal ditch which ran along the side of a public highway. They were held under no obligation to fence the sewer, so as to protect persons frequenting the highway.^^ It was ruled in an old case, that a pre- scription to lay logs of wood for fuel in the highways before the doors of ancient houses, leaving sufficient room for chariots, horsemen, and footmen to pass, is bad.^^ § 1195. Existence of TInauthorized Obstruction Prima Facie Evi- dence of Negligence. — Another doctrine which, under the system of trial by jury, probably answers the purposes of public justice equally well, is that the mere existence of an unauthorized obstruction or source of danger in the public highway is prima facie evidence of neg- ligence on the part of the author of it, under the rule res ipsa loquitur. For example, where a firm of lumber merchants had been in the habit, for many years, of piling lumber in a public street, and some of the lumber, so piled, fell on a woman using the street, injuring her, — it was held, in an action by her for damages, that the jury might have been instructed had the evidence otherwise rendered such an instruc- tion proper, that the defendants, placing lumber there, were guilty of such negligence as would make them responsible for the conse- quences,*" in other words, that the act of so obstructing the street was negligence as matter of law, being a positive violation of an ordinance of the city. § 1196. Injuries Caused by Negligence in Failing to Comply with Statutes and Ordinances. — The general rule is that where a valid stat- ute or municipal ordinance enjoins individuals or corporations to do or refrain from doing anything with a view of protecting the 770; s. 0. 31 L. J. (Q. B.) 212; Rob- "Fowler v. Sanders, Cro. Jac. 446. bins V. Jones, 15 C. B. (N. S.) 221; That an assignee of an insolvent s. c. 33 L. J. (C. P.) 1; 12 Week, corporation is not liable to a Kep. 248; 9 L. T. (N. S.) 523. Com- county for obstructing a public road pare Beach v. Frankenberger, 4 W. therein, where such road forms a Va. 712. part of a city which had been incor-i " Zuccarello v. Nashville &c. R. porated before the assignment, — see Co., 59 Tenn. 364. Powell County v. Kentucky Lum- ^'Cornwell v. Metropolitan Com- ber Co., 15 Ky. L. Rep. 577; s. c. 24 missioners of Sewers, 10 Exch. 771 S. W. Rep. 114 (not to be off. rep.), (distinguishing Coupland v. Hard- *° Galveston v. Gonzales, 6 Tex. ingham, 3 Camp. 397, and crltlcis- Civ. App. 538; s. c. 25 S. W. Rep. ing Rex v. Whitney, 7 Car. & P. 978. 308). 1071 1 Thomp. Neg.J negligence in kelation to the highway. safety of individuals, and in consequence of the neglect to obey the stat- ute or ordinance, injury happens to individuals, they may maintain an action for the wrongdoing in the violating of such statute, on the ground that it is either a nuisance per se or negligence per se;*^ though as elsewhere seen, some courts take the view that the violation of such a statute is merely evidence of negligence to be considered by the jury.*^ In conformity with this doctrine, if a statute confers upon a railway ^ company the right to lay its road across a public highway, and at the same time imposes upon it the duty of restoring the highway to its former condition as nearly as possible, an action will lie by any one who is injured without his own fault in consequence of its failure to perform this duty.*^ So, if a valid municipal ordinance requires the owner of any materials which form an obstruction in the streets or sidewalks, to prepare and place lights thereon before dark, with such care and diligence as reasonably to secure their burning until day- light, such an obstructor will be liable for any injury arising to per- sons on the street, in consequence of his neglect to perform this duty, whether the obstruction were the work of himself personally, or of a contractor employed by him.** So, if there is a valid provision in a city charter requiring each lot-owner to keep his sidewalk in "good and safe condition for use," and provides that for injuries occurring to any person "by reason of a defective sidewalk," the abutting owner shall be liable, such a liability will attach for injuries resulting from a defective condition of the sidewalk produced by the misconduct- of third persons, if such defective condition is sufEered to continue through the neglect of the abutting lot-owner;*^ though in such a case he must have had notice, or it must have continued for a sufficient length of time to charge him with notice.* ° On the other hand, there is a doctrine to the effect that statutes and ordinances of the kind under consideration merely enjoin the performance of public duties, the non-performance of which may be redressed by a public prosecu- tion, and that they do not give a right of action to a private person thereby injured;*^ and doubtless there are many statutes and ordi- '^Ante, § 10. 380, and Fath v. Tower Grove fee. "Araie, § 11. R. Co., 105 Mo. 537, 548. "Louisville &c. R. Co. v. Smith, *= Morton v. Smith, 48 Wis. 265; 91 Ind. 119; Bvansville &c. R. Co. v. s. c. 33 Am. Rep. 811. Carvener, 113 Ind. 51; Vaughan v. '"Ante, §§ 8, 1189. Buffalo &c. R. Co., 72 Hun (N. Y.) "It was so held of a statute of 471; s. c. 54 N. Y. St. Rep. 782. Louisiana, La. Act 1882, p. 20, § 36, "Wilson v. White, 71 Ga. 506; and La. Act 1886, p. 114, enjoining s. c. 51 Am. Rep. 269. That the vio- upon lot owners the duty of repair- lation of such an ordinance is negli- ing the banquette in front of their gence per se, was held in Skinner premises and of making a uniform V. Stifel, 55 Mo. App. 9. This con- grade: Betz v. Limingi, 46 La. An. elusion was regarded as the logical 1113; s. c. 15 South. Rep. 385. result of Jelly v. Pieper, 44 Mo. App. 1072 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. nances of this kind which fairly bear such an interpretation.*^ Again, statutes and municipal ordinances, — assuming them to be valid, — may- operate as a defense to a person or corporation obstructing the public street in a manner which would otherwise prove a nuisance, — as, for instance, a city ordinance granting a license to a railway company to construct its line upon and across certain streets in the city.*° Article II. Obstructions and Dangers Created by Abutting Owners. Section 1199. Obligation of abutting owners not to injure the street or highway. 1200. Liability of abutting owners for maintaining areas and holes in sidewalks. 1201. Persons maintaining areas in sidewalks held to the exer- cise of reasonable care. 1202. Illustrations of the liability of abutting owners for inju- ries from dangerous defects in sidewalks. 1203. Illustrative cases where the owner has been exonerated. 1204. What if the opening has been rendered dangerous by the intervening act of an inde- pendent wrong-doer. 1205. Liability as between the wrong-doer and the city. 1206. Rule of liability where the ob- ligation to repair is imposed by statute or ordinance. 1207. Are liable where they artifi- cially accumulate ice and snow on the streets. 1208. Liability for injuries sus- tained by falling of snow and ice from roofs, awnings, etc., upon the street or sidewalk. 1209. Liability of adjacent and abut- ting owners for failure to comply with ordinances re- quiring them to remove snow and ice from the sidewalks. ** See ante, § 12, and other sec- tions there referred to. VOL. 1 THOMP. NEC. — CS Section 1210. Constitutional validity of such ordinances. 1211. Whether such ordinances give a direct action to the person injured. 1212. Construction of such ordi- nances. 1213. Liability for the falling of dangerous walls. 1214. Liability for suspending ob- jects above the street or side- walk which fall upon trav- ellers. 1215. Whether the person suspend- ing objects above the street or sidewalk liable as an in- surer or for want of reason- able care. 1216. This liability, how affected by the intervening act of a stranger. 1217. Fall of such objects presump- tive evidence of negligence. 1218. Illustrations of this liability. 1219. Adjacent owners and occu- piers not liable for injuries produced by accumulations of snow and ice on the sidewalk from natural causes. 1220. What temporary obstructions of the street permissible. 1221. Limitations upon this right to obstruct the streets. 1222. Temporary obstructions in the operations of building. 1223. What obstructions in building deemed negligence. "Chicago &c. R. Co. v. Porter, 43 Minn. 527; s. c. 46 N. W. Rep. 75; 1073 1 Thomp. Neg.] negligence in relation to the highway. Section 1224. Whether obstruction is reason- able Is a question of fact. 1225. Excavations in the street in the operations of building and repairing. 1226. Ordinances licensing or regu- lating such excavations. Section 1227. Reasonableness of obstruction must be pleaded. 1228. Liability of land-owners for excavations so near the high- way as to endanger travel. 1229. Employments on one's own premises endangering public travel on the highway. § 1199. Obligation of Abutting Owners Not to Injure the Street or Highway.^ — The owner of property abutting on a highway is under a positive duty to keep it from being a source of danger to the public by reason of any defect in structure, repair, use, or management, which reasonable care can guard against.^" Eeasonable care must be exer- cised by such owners to keep their buildings safe to the end that they do not fall, in whole or in part, or that objects do not fall from them, injuring passers-by on the sidewalk or street ;^^ but such an owner is nv)t a guarantor or an insurer of the absolute safety of the sidewalk, and proof of negligence on his part is necessary to charge him with liability for an injury received thereon.^^ § 1200. liability of Abutting Owners for Maintaining Areas and Holes in Sidewalks.'' — A practitioner who approaches this subject, either in advising a client or in framing a complaint in an action, should carefully consider the state of the holdings in the juris- diction in respect of the distinction already adverted to, between cases where an obstruction in a highway is a public nuisance per se, and cases where it is lawful, but becomes actionable only by reason of negli- gence in its construction or maintenance, whereby damage results to one lawfully using the street. ^^ The general consensus of judicial opinion is that the maintenance by abutting owners of open spaces or 43 Am. & Eng. R. Cas. 170. See also Taylor v. Dunn, 80 Tex. 652; s. c. 16 S. W. Rep. 732, — where such an ordinance was construed. a This section is cited in §§ 9, 68, 1068, 1190. 00 perrier v. Trepannier, 24 Can. S. C. 86. " Ante, § 1055, et seq.; post, §§ 1208, 1213, 1214-1218; Macauley v. Schnei- der, 9 App. Div. 299; s. c. 41 N. Y. Supp. 519; Krohn v. Brock, 4 N. Eng. Rep. 516; s. c. 11 N. E. Rep. 748; Defiance v. Wilhelm, 12 Ohio C. C. 346; s. c. 1 Ohio C. D. 669. 1074 ^' Gaston v. Bailey, 14 Ind. App. 581; s. c. 43 N. B. Rep. 254. Thus, it has been held that damages could not be recovered from a household- er caused by the plaintiff falling over a piece of scantling which stretched across a banquette of a street, with one end resting upon a door-sill of the defendant's house, in the absence of proof that the de- fendant or his employes placed it there, or knew of its being there: Ackerly v. Sullivan, 34 La. An. 1156. bThis section is cited in §§ 970, 1068. '^Ante, § 1188. OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. areas under sidewalks in front of their property ; the maintenance of windows in the surface of the sidewalk for the purpose of lighting their cellars through such areas, such windows being sufficiently strong and properly secured; and the maintenance of holes for the purpose of introducing coal and other substances from the street into such areas, such holes when not in actual use being properly covered, and their covers securely fastened; and (within careful limits) the main- tenance of cellar-ways from such sidewalks into the areas thereunder and into the cellars of the abutting owners, — are not uses of the side- walk, by the owner of the fee, which are inconsistent with the rights of the public, or which imperil the public in the use of the sidewalk, in such a sense as to constitute a public nuisance per sef'^ although it is plain that such areas, holes, etc., in the sidewalk may be so con- structed or left unguarded, in particular instances, as to constitute such a nuisance. ^^ This must be apparent when it is considered, upon common experience, that such areas and such openings leading into them, exist in all American cities, and the law would scarcely de- nounce as a public nuisance a practice common to nearly all property owners, which is everywhere tolerated and everywhere in vogue. But there is a limit to this theory; since, if such an area or opening is so constructed as to constitute a nuisance dangerous to pnblic travel, the opposing principle comes in, that a custom of maintaining a public nuisance is a had custom. In conformity with this view, it has been " Beardsley v. Swann, 4 McLean ing the one maintaining it an in- (U. S.) 333; King v. Tliompson, 87 surer of its safe condition: Benja- Pa. St. 365; Dickson v. Hollister, min v. Metropolitan Street R. Co., 123 Pa. St. 421; s. c. 16 Atl. Rep. 133 Mo. 274; s. c. 34 S. W. Rep. 590. 484; 46 Phila. Leg. Int. 241; 19 Pitts. =' See for illustration BuescMng L. J. (N. S.) 321; 23 W. N. C. 128; v. St. Louis Gas Light Co., 73 Mo. Stevenson v. Joy, 152 Mass. 45; s. c. 219; reversing s. c. 6 Mo. App. 85, — 25 N. E. Rep. 78; Kelly v. Bennett, where a property owner had left un- 132 Pa. St. 218; s. c. 19 Atl. Rep. guarded, save by a side and end 69; 7 L. R. A. 190; 25 W. N. C. 368; railing, on a frequented street in a 47 Phila. Leg. Int. 69; Bond v. city, a cellar-way leading downward Smith, 113 N. Y. 378; s. c. 21 N. E. from the sidewalk; there being no Rep. 128; 22 N. Y. St. Rep. 666; Ho- gate at the entrance to prevent foot tel Asso. V. Walter, 23 Neb. 280 ; s. c. passengers from stumbling into it 36 N. W. Rep. 561; Landru v. Lund, in the night, and a man fell into it 38 Minn. 538; s. c. 38 N. W. Rep. and was killed, and it was held a 699; Burt v. Wrigley, 43 111. App. case for damages. In the learned 367; Maltbie v. Bolting, 26 N. Y. opinion written by Hough, J., the Supp. 903; s. c. 23 N. Y. St. Rep. following closely analogous holdings 243; 6 Misc. (N. Y.) 339 (learned were cited: Coupland v. Harding- opinion by McAdam, J.); Kirkpat- ham, 3 Camp. 398; Jarvis v. Dean, rick V. Briggs, 78 Hun (N. Y.) 518; 3 Bing. 447; Barnes v. Ward, 9 s. c. 61 N. Y. St. Rep. 209; 29 N. Y. Com. Bench 392; s. c. 9 Man. G. & Supp. 532; Lanark Bank v. Eitemil- S. 392; Hadley v. Taylor, L. R. 1 ler, 14 111. App. 22. The maintenance C. P. 53; Bush v. Johnson, 23 Pa. of a scuttle-hole for unloading St. 209; Temperance Hall Asso. v. coal under authority of a city ordi- Giles, 33 N. J. L. 260. nance, is not per se a nuisance, mak- 1075 1 Thomp. Neg.] negligence in relation to the highway. ruled that where such an area or cellar-way in a sidewalk is dangerous to passers-by, it is no defense that similar areas or cellar-ways are common in the same city, and are customarily protected as the one in question was ; nor that over ten thousand persons have passed and re- passed the particular opening every year since it had been built with- out accident. °° The better view, then, is that excavations properly and safely made under the public streets in cities, for the convenience of the owners of the abutting premises, they being owners of the fee in the street, are not inherently unlawful ; and that they are not to be treated as nuisances if kept in repair, and if the use of the street is not interrupted by them for an unreasonable length of time. Such temporary obstructions are not deemed invasions, but qualifications, of the right of transit on the part of the public. ^^ § 1201. Persons Maintaining Areas in Sidewalks held to the Exer- cise of Reasonable Care.'^ — A closer question is whether abutting own- ers using the sidewalk in the manner described in the last section are to be deemed insurers of the safety of the public in respect of any acci- dents which may happen from the use which such owners make of the sidewalk ; or whether they are liable, if at all, merely for the failure to exercise reasonable care in maintaining such areas, etc., in a condition reasonably safe and secure. The prevailing opinion seems to be that property owners thus exercising a lawful right are held only to the standard of reasonable. care and shill in exercising it.'^' This reason- able care extends not only to making such areas, openings, etc., reason- ably secure, but also to keeping them so.^^ It therefore demands a continuous inspection on the part of the property owner, and the law will hold him responsible for damages arising from any defect which would have been discovered by such an inspection in time to have it repaired before the accident took place.®" If the adjacent proprietor ™ Temperance Hall Asso. v. Giles, v. Metropolitan Street R. Co., 33 N. J. L. 260. And see BuescMng 133 Mo. 274; s. c. 34 S. W. Rep. 590 V. St. Louis Gas Light Co., 73 Mo. That the acquittal of the mason who 219; reversing s. c. 6 Mo. App. 85, did work under a sidewalk nine where the opening had existed for days before an accident happened, twenty-five years in the business is not inconsistent with holding the portion of the city of St. Louis. owner of the abutting premises re- " Fisher v. Thirkell, 21 Mich. 1 ; sponsible for the defect which Irvin V. Fowler, 5 Rob. (N. Y.) 482. caused the accldenl: Burt v. Wrig- a This section is cited in § 1068. ley, 43 111. App, 367. "* Beardsley v. Swann, 4 McLean ^° Dickson v. Hollister, 123 Pa. St. (U. S.) 333; Dickson v. Hollister, 421; s. c. 16 Atl. Rep. 484; 46 Phila. 123 Pa. St. 421; s. c. 16 Atl. Rep. Leg. Int. 241; 19 Pitts. L. J. (N. S.) 484; 46 PTiila. Leg. Int. 241; 19 Pitts. 321; 23 "W. N. C. 128; Ellis v. Mc- L. J. (N". S.) 321j 23 W. N. C. 128; Naughton, 76 Mich. 2^7; s. c. 42 N. Maltbie v. Bolting, 26 N. Y. Supp. W. Rep. .1113. 903; s. c. 6 Misc. (N. Y.) 339; "Stevenson v. Joy, 152 Mass. 45; 56 N. Y. St. Rep. 243; Benjamin s. c. 25 N. E. Rep. 78; Roberts v. 1076 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. had notice or knowledge of the defective condition of the opening in the sidewalk, the ground of charging him with liability for any dam- age thereby produced will of course be stronger. ^^ Whether the abut- ting owner has, in a given instance, exercised the degree of diligence which the law imposes upon him will be, it may be assumed in most eases, a question for a jury, though there are cases where the court may decide it upon undisputed evidence as a matter of law.^^ On estab- lished or conceded facts, the question of the lawful right to construct such an area is always for the court. Thus, the consent of the proper public authorities to the construction of a vault under a sidewalk in front of a business block must be conclusively inferred by the court from the acquiescence, with actual knowledge thereof, of those having charge of the street for the public, for so long a period as nine years.® ^ But the consent of the municipal authorities to the construction of an area under the sidewalk will not at all exonerate the one who constructs it, or his assignee, from liability for allowing the cover to become and remain out of repair^ although they may not have used the particular part of the area and thus allowed it to fall into disrepair.*** It is scarcely necessary to add that the fact that a municipal ordinance also imposes a liability upon a city in favor of the traveller thus in- jured, does not at all cut off his right of action against the abutting land-owner, who is the primary author of the injury.'^ Mitchell, 21 Ont. App. 433. In con- no negligence in leaving an area formity with the text, it has been three feet wide, between the rear of held that an adjacent occupier who the building and an alley, uncov- digs a hole six feet square and seven ered, where it is separated from ihe feet deep in a city sidewalk does alley by a stone coping seven inches not discharge his duty to the public high and two feet wide, and the by putting two barrels and three alley is used only by those having planks around such hole, without business with the buildings . abut- exercising care to see that the bar- ting thereon, and almost exclusively Tiers are kept up all the time, when during business hours in the day- he knows that boys in the neighbor- time: Bond v. Smith, 113 N. Y. 378; hood are in the habit of throwing s. c. 21 N. E. Rep. 128; 22 N. Y. St. down the guards and stealing the Rep. 666. For a further example, barrels: Crawford v. Wilson &c. if it appear that the area or open- Man. Co., 28 J^. Y. Supp. 514; s. c. ing in the sidewalk was not on the 8 Misc. (N. Y.) 48; 59 N. Y. St. Rep. land of the defendant, and the evi- 457. So, an occupier of premises dence is consistent with the fact who leaves a coal-hole in the side- that it may have been constructed walk open and unprotected, through by some one else, — here the court his own carelessness or that of his will not let the case go to the jury: agents or servants, is guilty of ac- Lowell v. Glidden, 159 Mass. 317; 34 tionable negligence: Kuechenmeis- N. E. Rep. 459. Similarly, see Beach ter V. Brown, 1 App. Div. (N. Y.) v. Frankenberger, 4 W. Va. 712. 35- s. c. 37 N. Y. Supp. 95; 72 N. Y. " Babbage v. Powers, 130 N. Y. St. Rep. 147. 281; s. c. 14 L. R. A. 398; 41 N. Y. "Hotel Asso. V. Walter, 23 Neb. St. Rep. 521; 29 N. E. Rep. 132. 280; s. c. 36 N. W. Rep. 561; Kehoe "Wickwire v. Angola, 4 Ind. App. v. Halpin, 65 Mo. App. 343. 253; s. c. 30 N. E. Rep. 917. »^For example, the court will de- °=Landru v. Lund, 38 Minn. 538; cide, as matter of law, that there is s. c. 38 N. W. Rep. 699. 1077 1 Tliomp. Neg.J negligence in relation to the highway. § 1202. Illustrations of the Liability of Abutting Owners for Inju- ries from Dangerous Defects in Sidewalks. — Where a street was ■widened so as to embrace a part of a cellar, over which a building had stood, but which had been burnt down, the owner was not liable to a person falling into it, unless it could be shown that he had used it for some purpose in connection with the use of the premises. The liabil- ity in such case was on the city."' Where the public, for above thirty years, had been permitted to occupy as a sidewalk a portion of ground, in a village, in front of a private building, and the owner extended into the sidewalk, or near to it, a hatchway leading to his cellar, and interrtipted the passage, permitting the interruption to remain for several days without inclosure or other protection against accident, it was held that he was liable to a person who was injured by falling into the same in the night-time, no want of ordinary care on the part of the person injured appearing."^ A blind man, accustomed to go about alone, fell into an open trap-door in the sidewalk, unguarded except that men were engaged in hoisting goods out of it.** A girl fourteen years old, while skipping a rope on the side- walk, in the day-time, fell into an open area which was visible and which had been negligently left uncovered.*^ In these two last cases it was held that the author of the nuisance was liable in damages ; and in the last one, the court laid down the doctrine that one who passes along a sidewalk has a right to assume it to be safe, and is bound to no special care to avoid falling into an uncovered area, even though it may be visible, — a doctrine which is believed to be unsound. § 1203. Illustrative Cases where the Owner has been Exonerat- ed. — It has been held, as matter of law, that it is not negligence for the owner of a building devoted to business purposes to maintain in the rear of it an open area-way, three feet wide and eight feet deep, protected on its side toward the alley by a stone coping seven inches high and two feet wide, the other sides being enclosed by the walls of the buildings, the alley being closed at one end and used only by per- sons having business at the rear of the buildings facing thereon, and almost exclusively in the day-time, the alley having no sidewalks and being always encumbered with barrels, boxes and rubbish, — so as to give a right of action to the personal representative of a nigM watch- man who falls into such area- way and is killed:^" a grossly untenable "Beach v. Frankenberger, 4 W. "Bond v. Smith, 113 N. Y. 378; Va. 712. s. c. 22 N. Y. St. Rep. 666; 21 N. E. "Bush V. Johnston, 23 Pa. St. 209. Rep. 128; reversing s. c. 44 Hun (N. " Smith V. Wildes, 143 Mass. 556. Y.) 219. "McGuire v. Spence, 91 N. Y. 303; B. c. 42 Am. Rep. 601. 1078 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. decision. The owner of the fee will be exonerated from the liability to pay damages predicated upon his negligence in maintaining a de- fective fastening of a cover of a coal-hole in the sidewalk, unless it be made to appear, either that he placed the hole or cover in the sidewalk, or else, if it was placed there by others without his authority or acquies- cence, that he ratified their conduct by assuming control of it.''^ § 1204. What if the Opening has been Rendered Dangerous by the Intervening Act of an Independent Wrong-doer. — In the view which makes the liability of the owner of such an area that of an insurer, it is wholly immaterial whether the injury happened in consequence of its having been rendered dangerous by himself, or by his con- tractor,'^ his tenant,''^ or other wrong-doer. If, however, the area is not wrongful per se, then, it seems, the owner or occupier of the premises will not be liable for an injury happening in consequence of its having been opened by the act of a wrong-doer, he himself having properly secured it.''* Thus, it has been held that the owner of a scut- tle hole maintained in a sidewalk is not liable for injuries resulting from the neglect of strangers to replace it after using it, if he did not know, and by the exercise of ordinary care could not have known, that it was rendered dangerous by the use that was being made of it by such persons.'^ So, a person who places a proper light or other guard upon an obstruction lawfully placed by him in a public street is not liable for damages to a traveller because of the removal of such guard without his fault, where sufficient time has not elapsed between the re- moval and the accident, to enable him, in the exercise of ordinary care, to discover such removal and remedy it.'® But where the abutting owner has been guilty of negligence, then, on a principle already con- sidered," the intervening negligence or other wrong of a third person will not exonerate the property owner or occupier from liability for damages which may accrue to a traveller from leaving a dangerous ex- cavation uncovered in the sidewalk or 'at the edge of it, — as where a traveller was injured by a scuttle-hole negligently constructed, al- though the negligence of a third person in replacing the covering con- " Gaston v. Bailey, 14 Ind. App. 760; Martin v. Pettit, 117 N. Y. 118; 581; s. c. 43 N. E. Rep. 254. s. c. 26 N. Y. St. Rep. 919; 22 N. E. "Congreve v. Smitli, 18 N. Y. 79; Rep. 561; reversing s. c. sub nam. Congreve v. Morgan, 18 N. Y. 84. Wasson v. Pettit, 49 Hun (N. Y.) "Anderson v. Dickie, 1 Robt. (N. 166; s. c. 16 N. Y. St. Rep. 778. Y.) 238; s. c. 26 How. Pr. (N. Y.) "Benjamin v. Metropolitan Street 105; Davenport v. Ruckman, 37 N. R. Co., 50 Mo. App. 602. Y. 568; 10 Bosw. (N. Y.) 20. Con- "Raymond v. Keseberg, 91 Wis. tra, Fisher v. Thirkell, 21 Mich. 1. 191; s. c. 64 N. W. Rep. 861. "Daniel v. Potter, 4 Car. & P. '''Ante, § 54. 262; Harrison v. Collins, 5 Reporter 1079 1 Thomp. Neg.J negligence in relation to the highway. tributed thereto.'' Another court has held that if, after the removal by a trespasser, or other independent person, of the cover of such a lawful area, the owner of the premises suffer it to remain open until a reasonable time has elapsed in which a prudent man should have dis- covered its open condition, then he will be liable for a subsequent in- jury by it to a traveller.'^' Where the premises are in the possession of a tenant, and the opening from which the injury accrued was in a safe condition when the premises were demised, then, it has been held that the landlord is not chargeable with the damages, unless it is made to appear that he had notice that the premises had become defective. The theory of the court exonerates the landlord from the continuing duty of inspection, and imposes it upon the tenant.^" § 1205. Liability as between tie Wrong-doer and the City.^ — The fact that, under a municipal ordinance or otherwise, the city or town may be liable to the traveller injured, does not at all exonerate the abutting landowner from liability, since he is the primary wrong- doer, and since the municipality, if compelled to pay the damages, has an action over against him as such.'^ It is, therefore, not at all necessary that the person injured should iirst bring an action against the municipality;'^ the primary author of the nuisance and the city are, in theory of law, under a common duty to repair, and are hence jointly and severally liable to the person injured, and the latter has his election to bring his action against both jointly or against each separately.'' If the action is brought against the city and a recovery is had and the city is compelled to pay the damages so recovered, then, on a principle more fully discussed in a future volume,'* it will have an action over against the primary wrong-doer.'^ In such an action "Benjamin v. Metropolitan Street 551; Rowe v. Baltimore &c. R. Co., 82 R. Co., 133 Mo. 274; s. c. 34 S. W. Md. 493; s. c. 33 Atl. Rep. 761. Rep. 590. *= Peoria v. Simpson, 110 III. 294; "Harrison v. Collins, 86 Pa. St. s. c. 51 Am. Rep. 683. 153; 6 Cent. L. J. 401; 5 Reporter "See also Washington Gas Light 760. Co. V. District of Columbia, 161 U. S. '"Wolf v. Kilpatrick, 101 N. Y. 316; s. c. 40 L. ed. 712; 24 Wash. L. 146; s. c. 54 Am. Rep. 672. Com- Rep. 470; 16 Sup. Ct. Rep. 564; Rice pare the following cases all cited by v. Whitby, 28 Ont. Rep. 598. the court: Swords v. Edgar, 59 N. '"Peoria v. Simpson, 110 111. 294; Y. 28; Clancy V. Byrne, 56 N. Y. 129; s. c. 51 Am. Rep. 683; Wabasha v. Edwards v. New York &a. R. Co., Southworth, 54 Minn. 79; 55 N. W. 98 N. Y. 245. And see, for the gov- Rep. 818. It is held in the same erning principle, ante, § 1133. case that the mode prescribed by a This section is cited In § 79. statute (Minn. Sp. Laws 1889, ch. "McDaneld v. Logi, 143 111. 487; 13, subc. 7, § 16), for recovery over s. c. 32 N. E. Rep. 423. by the city against an abutting '^ Brookville v. Arthurs, 152 Pa. owner, who has negligently allowed St. 334; s. c. 31 W. N. C. 357; 23 a sidewalk to become unsafe, by Pitts. L. J. (N. S.) 409; 25 Atl. Rep. letting the claim for injuries go to 1080 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. over by the municipality against the abutting property owner, the governing principle will be that an owner of abutting property who causes a cellarway, trap-door, or scuttle to be put in a public sidewalk for his convenience, is, as between himself and the city, bound to maintain it in a safe condition ; that he can not relieve himself of such duty by merely abandoning the use of the structure ; but that he must remove it and restore the sidewalk to its original condition.^ ° § 1206. Rule of Liability where the Obligation to Repair is Im- posed by Statute or Ordinance. — Prima facie, and at common law, an abutting property owner is under no obligation to repair the adja- cent street or sidewalk except to remove or to render safe any obstruc- tions which he has placed there for his own purposes. But city ordi- nances have frequently been passed imposing this duty upon him. Assuming that these ordinances are within the constitutional power of the legislature of the State, and consequently of that of the city,^^ then the question arises whether, in case of the failure to discharge this duty in consequence of which the sidewalk gets out of repair, and a traveller is injured thereby, he has an action against the abutting owner who has been guilty of neglect, or whether he is limited to his action against the city. It is obvious that this question must be solved as a result of an inquiry whether the object of the statute was to make the property holder liable distributively to any member of the public who might be damaged by his failure to perform the im- posed duty, or whether it was intended merely to make him liable to the city for failing to perform a duty primarily devolved upon the city. In other words, is he liable to such an action for damages, or is he merely liable to be prosecuted and fined in the police court for the breach of a city ordinance? The decisions, so far as examined, judgment against both it and such which an injury is occasioned for owner, paying the judgment and which the city is held liable, where enforcing it against the latter, — is such obstruction was maintained not exclusive, but that the city set- with the consent or connivance of tling the claim without suit, may the city. The "consent and conni- recover over in an action against vance" here referred to consisted the owner. The only effect of such merely in the failure of the city settlement is to leave the question for some years to exercise its gov- of the liability of the owner open: ernmental power so as to prevent Wabasha v. Southworth, 54 Minn, private persons from piling lumber 79; s. c. 55 N. W. Rep. 818. In Gal- in the streets of the city. The de- veston V. Gonzales, 6 Tex. Civ. App. cision is opposed to all the authori- 538; s. c. 25 S. W. Rep. 978, — it is ties which bear directly on the ques- held that a city can not recover in- tion. demnity against persons maintain- '"Wabasha v. Southworth, 54 ing an obstruction upon the street Minn. 79; s. c. 55 N. W. Rep. 818. in violation of a city ordinance, by '^ Post, § 1210. 1081 1 Thomp. Neg.] negligence in kelation to the highway. answer this question by holding that the lot-owner is not liable di- rectly to the person damaged, but only to the city.** § 1207. Are Liable where they Artificially Accumulate Ice and Snow on the Streets. — The contrary rule applies where the owner of a building so constructs and maintains a water-spout that spray dis- charged from it falls upon the sidewalk, and is there frozen, rendering the sidewalk slippery and dangerous. Here the owner is liable to a traveller thereby injured, and it is error to dismiss the suit on the ground that the city alone was liable.^' So, where a railroad com- pany so maintained the spout of its water tank that water escaped therefrom and froze on the sidewalk, rendering it slippery and dan- gerous, to the injury of a foot passenger thereon, it was held that the latter might maintain an action against the railroad company for damages.'" The question of the liability of an abutting owner for an injury to a street-passenger from slipping on ice formed on the side- walk under a "leader" connected with a gutter upon an awning ex- tended over the sidewalk, is said to depend upon the answer to the q^iestion whether such manner of discharging the water is negligent; although such a structure, erected in such a place, without the consent of the public authorities, would render the person erecting it liable, upon the ground of nuisance and without proof of negligence, for an injury directly caused thereby."^ »» Rochester v. Campbell, 123 N. N. Y. St. Bep. 87; 24 N. Y. Supp. Y. 405; s. c. 10 L. R. A. 393; 34 N. 1087. Y. St. Rep. 77; 42 Alb. L. J. 512; 25 "'Macauley v. Schneider, 9 App. N. E. Rep. 937; rev'g 55 Hun (N. Div. (N. Y.) 279; s. c. 41 N. Y. Supp. Y.) 138; s. c. 28 N. Y. St. Rep. 194; 519. Where one buys premises hav- 8 N. Y. Supp. 252; Lynch v. Hub- ing upon them, or on the boundary bard, 101 Mich 43; s. c. 59 N. W. line, a pipe discharging water from Rep. 443; Moore v. Gadsden, 93 N. the roof for the accommodation of Y. 12; Hill v. Fond du Lac, 56 Wis. his and adjoining premises, but 242; Weller v. McCormick, 47 N. J. changes the flow and does not use L. 397; Kirby v. Boylston &c. Asso., the pipe for his own premises, but 14 Gray (Mass.) 249; Plynn v. Can- the pipe continues to discharge the ton Co., 40 Md. 312; Heeney v, water from the adjoining premises, Sprague, 11 R. I. 456; Hartford v. he is not liable to one who, passing Talcott, 48 Conn. 525; Eustace v. along the sidewalk, falls upon the Jahns, 38 Cal. 3; Jansen v. Atchi- ice formed by such discharge, and son, 16 Kan. 358; State v. Gorham, is injured; since, under such cir- 37 Me. 451; Taylor v. Lake Shore cumstances, he is not the continuer &c. R. Co., 45 Mich. 74. In Roches- of the nuisance: Wenzlick v. Me- ter V. Campbell, 123 N. Y. 405, there Cotter, 87 N. Y. 122; s. c. 41 Am. is a learned and able discussion of Rep. 358; reversing s. c. 22 Hun (N. the question reviewing the authori- Y.) 60. The mere fact that a land- ties, by Ruger, C. J. owner has snow swept from his " McConnell v. Bostelmann, 72 premises upon the sidewalk in front Hun (N. Y.) 238; s. c. 25 N. Y. St. thereof does not render him liable Rep. 439; 25 N. Y. Supp. 390. for an injury to a person by falling "" Thuringer v. New York &c. R. in snow and ice on the sidewalk, Co., 71 Hun (N. Y.) 526; s. c. 55 unless the snow so swept upon the 1082 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. § 1208. liability for Injuries Sustained by Falling of Snow and Ice from Roofs, Awnings, etc., upon the Street or Sidewalk.^ — One who so constmcts the roof of his house, or occupies a house whose roof is so constructed, that snow and ice accumulate thereon, and are liable, during a period of thaw or otherwise, to slide therefrom by their own weight, and fall upon the street or sidewalk, to the danger of passers- by, — stands under an obligation to prevent such catastrophes by re- moving such accumulations of snow and ice from his roof, without unreasonable delay ; failing in which duty, he is liable to pay damages to any passer-by on the street injured thereby.^^ For the owner of abutting premises so to construct a building with the roof sloping toward the sidewalk in a cold climate, that ice and snow accumulating upon the roof will be liable at any time to fall upon the sidewalk to the injury of passers-by, is to create a public nuisance. Such a prop- erty-owner becomes an insurer against the consequences of his wrong- ful act, and if snow accumulated upon such roof, slides off and in- jures a person lawfully upon the sidewalk, the owner of the building is liable for damages without proof of negligence ; and it will not ex- onerate him to prove that he used all the care and diligence which he could to remove the snow and ice from such a roof. Assuming that his liability rests upon the principle of negligence, and not upon the principle of nuisance, then it is reasoned that the gist of his negli- gence consists, not in the management of the roof, but in its improper and unsafe construction."' But, whatever the reasoning of the court may be in such a case, on the analogies of the common law, the true theory is that of nuisance. A roof so constructed in a cold climate is per se a nuisance, and the owner is liable on that ground for any in- jury thereby caused to a passer-by. °* Such a case is also a ease for the application of the maxim Sic utere tuo ut alienum nan laedas. It suggests the doctrine of Rylands v. Fletcher, ^^ that if one accumulates on his premises anything which, from its nature, is continually en- sidewalk was permitted to remain covered with snow and ice; no com- there for an unreasonable length of mon-law obligation in such a case, time: Rohling v. Eich, 23 App. Div. and contract obligation performed: (N. Y.) 179; s. c. 48 N. Y. Supp. Fletcher v. Scotten, 74 Mich. 212; 892. That an abutting owner is not s. c. 41 N. W. Rep. 901. liable for personal injuries from a a This section is cited in §§ 1199, fall upon ice on a driveway con- 1245. structed by him across the sidewalk °' Shipley v. Fifty Associates, 101 for the necessary use of his prem- Mass. 251 (leading case), ises, accumulated from water flow- °= Hannem v. Pence, 40 Minn. 127 ; ing off his land on the sidewalk, — see s. c. 41 N. "W. Rep. 657. Knoth v. Meltzer, 3 Misc. (N. Y.) "'Wash v. Mead, 8 Hun (N. Y.) 596; s. c. 52 N. Y. St. Rep. 857; 23 389; Shipley v. Fifty Associates, 101 N. Y. Supp. 342. Yendor of land Mass. 251; s. c. 106 Mass. 194. not liable to his vendee for an in- "= L. R. 3 H. L. 330; s. c. 1 Thomp. Jury in slipping on a narrow walk Neg., 1st ed., 2. 1083 1 Thomp. Neg.] negligence in relation to the highway. deavoring to escape, and which, if it do escape, may cause damage, he must restrain it at his peril. Thus, if one fixes a spout or cornice, which gathers water that falls upon his roof and throws it upon his neighbor's land,*" or upon the sidewalk, so that ice forms there, and a traveller is injured, an action lies.°^ In such a case, where the theory is that of negligence, the question whether the owner or occupier has been guilty of negligence is a question for the jury, as in other cases."' But if there is a statute making a building so erected that its roof overhangs the street an indictable nuisance, and if the injury is the direct consequence of the roof being so constructed, then negligence need not be averred or proved. ""^ But, the owner of a building with a roof so constructed that snow and ice collecting on it from natural causes will naturally and probably fall into the adjoining highway, is not liable to a person injured by such a fall upon him, while travelling upon the highway with due care, if the entire building is at the time let to a tenant who has covenanted with the owner "to make all need- ful and proper repairs, both internal and external," it not appearing that the tenant might not have cleared the roof of snow by the exercise of due care, or that he could not, by proper precaution, have pre- vented the accident.^"" § 1209. liability of Adjacent and Abutting Owners for Failure to Comply with Ordinances Requiring them to Remove Snow and Ice from the Sidewalks.* — Where a person using the sidewalk is injured in consequence of the failure of an abutting owner to comply with a city or village ordinance which requires him to keep the sidewalk clear from ice and snow, three questions will generally arise : 1. Whether the ordinance is within the charter power of the city or village.^ "^ °° Reynolds v. Clarke, 2 Ld. Raym. damages for injuries sustained by 1399; s. c. 1 Stra. 634; Fay v. Pren- their failure to do so, where there tice, 1 C. B. 828; Bellows v. Sackett, is no statutory or charter authority 15 Barb. (N. Y.) 96. to impose such burden upon the lot- •' Kirby V. Boylston Market Assn., owners: Woodward v. Boscobel, 84 14 Gray (Mass.) 249. Wis. 226; s. c. 54 N. W. Rep. 332. "' Garland v. Towne, 55 N. H. 55; It has been held that a town by- s. c. 1 Thomp. Neg., 1st ed., 333. law imposing a penalty on the ^ Garland v. Towne, 55 N. H. 55. owner of property abutting upon ""Leonard v. Storer, 115 Mass. 86; brick, concrete, or other curbed or s. c. 1 Am. L. T. (N. S.) 414. Com- finished sidewalk if snow is allowed pare ante, § 1154, et seq. to remain thereon for more than a This section is cited in § 12. five hours during the day-time, is "' With reference to this question not invalid as an arbitrary imposi- it has been held that no mere acqui- tion upon a particular class of per- escense in an invalid ordinance, no sons, although there may be no matter how long continued, can con- brick sidewalks and few of concrete fer authority on a city council to or other curbed or finished walks require property owners to keep the in the town, although there are sidewalks in front of their lots in many gravel walks: Clinton v. repair, and to make them liable for Welch, 166 Mass. 133; s. c. 43 N. E. 1084 OBSTKUCTING AND ENDANGERING TRAVEL. [2d Ed. 2. Whether it is within the police power of the state. 3. Whether it gives a right of action to any one injured by the failure to comply with it, or merely subjects the person so failing to a prosecution for a fine in the police or municipal court. § 1210. Constitutional Validity of Such Ordinances.^ — Upon the second question, there is a difference of opinion as to whether it lies within the constitutional power of the legislature of a state to charge private persons with responsibility for keeping in repair any part of the public highway. Some of the state courts have held that it is not^"^ and others have taken the contrary view.^"^ § 1211. Whether such Ordinances Give a Direct Action to the Per- son Injured. — Upon the third question, namely, whether such a by- law renders the adjacent property-owner liable in a direct action to a traveller who sustains an injury in consequence of the failure of the property-owner to comply with the by-law ; or whether, in case the in- jured traveller recovers a judgment for damages against the city, town or village, and the latter pays the same and then brings an action over for damages against the property-owner, — a recovery can be had, — ■ the drift of judicial opinion seems to incline in favor of denying such a remedy, and of holding that the only remedy for the enforcement of the by-law is a prosecution in the municipal court. ''■"^ The theory of these decisions is that, in order to make a property-owner answerable in damages for an injury received by a traveller from ice or snow ac- cumulated on the sidewalk, the property-owner must have suffered it to accumulate there through some negligent act or omission of duty.^°° Rep. 1116. Nor was such a by-law (?{. Y.) 423; s. c. 72 N. Y. St. Rep. deemed invalid because of the 607; 37 N. Y. Supp. 281; Harkin v. further fact that it imposed a fixed Crumbie, 14 Misc. (N. Y.) 439; s. c. penalty upon the property owner ,^ 70 N. Y. St. Rep. 731; 35 N. Y. Supp. which was greater in amount than' 1027; Rohling v. Eich, 23 App. Div. the expense of performing the duty (N. Y.) 179; s. c. 48 N. Y. Supp. by the municipality would be, which 892; St. Louis v. Connecticut &c. expense it could recover from the Ins. Co., 107 Mo. 92. To the same property owner under a public stat- effect, see also Heeney v. Sprague, ute- Clinton v. Welch, 166 Mass. 11 R. I. 456; Moore v. Gadsden, 93 133; 43 N. E. Rep. 1116. N. Y. 12; Hartford v. Talcott, 48 a This section is cited in § 1206. Conn. 525. The failure of a lot- "■2 Gridley v. teloomington, 88 111. owner to repair a defective and !554;' Chicago v. O'Brien, 111 111. 532; worn-out sidewalk in -front of his State V. Jackman (N. H.), 41 Atl. lot has been held not to render 'him Rep. 347; s. c. 42 L. R. A. 438. liable for injuries to a passer-by "= Carthage- v. Frederick, 122 N. Y. caused by such defect, where the 268; Ex parte Goddard, 16 Pick, city charter gives the city authority (Mass.) 504; Reinken v. Fuehring, to regulate and repair the sidewalk, 130 Ind. S82. and requires the owner of abutting ^"^ Ante, § 12. premises to keep the sidewalk in "= Brown v. Wysong, 1 App. Div. good repair, and authorizes the city 1085 1 Thomp. Neg.J negligence in kelation to the highway. The conception that an adjacent property-owner can be held liable in a private action for damages for the failure of his duty at, common law, but can not be so held liable for such an accumulation allowed to form by reason of his neglect to comply with a municipal ordinance, is a senseless refinement, but one quite worthy of the habits of thought of the legal profession. A gleam of common sense is discovered in a Canadian judgment which concedes a liability to some one, in an action over by the city for damages which it has been compelled to pay to persons injured by such a neglect, the only question considered being whether the liability rests on the landlord or the tenant, the con- clusion being that it rests on the landlord if the injury proceeds from a defect in the demised premises which existed at the time of the let- ting."-"^ § 1212. Construction of Such Ordinances.^ — The owner of a build- ing in Boston, part of which he has let to one tenant and the rest to another, is not liable for neglect to remove the snow from the adjoin- ing sidewalk, under a city ordinance which provides that it shall be removed by the "tenant, occupant, and, in case there shall be no ten- ant, the owner," although he occupies rooms in the building as a boarder with one of his tenants.^"^ A provision in the charter of a city requiring each lot owner to keep in repair the sidewalk in front of his premises, and authorizing the city to perform the work at his ex- pense, and a further provision making primarily liable for an injury caused by a defect in a sidewalk for which the city would be liable, the person by whose "wrong, default, or negligence" the injury was to make necessary repairs if the Wis. 435; Gilbert v. Roxbury, 100 owner fails to do so: Toutloff v. Mass. 185; McLaughlin v. Corry, Green Bay, 91 Wis. 490; s. c. 65 77 Pa. St. 109; Chicago v. McGiven, N. W. Rep. 168. 78 111. 347; Quincy v. Barker, 81 111. '"Organ v. Toronto (C. P.), 24 300; Billings v. Worcester, 102 Mass. Ont. Rep. 318; ante, § 1158. 329; Rogers v. Newport, 62 Me. 101; a This section is cited in § 12. Baltimore v. Marriott, 9 Md. 160; "'The Commonwealth v. Watson, Luther v. Worcester, 97 Mass. 269; 97 Mass. 562. The liability of mu- Street v. Holyoke, 105 Mass. 82; nicipal corporations for injuries Fitzgerald v. Woburn, 109 Mass. happening to travellers from accu- 204 ; Pinkham v. Topsfield, 104 Mass. mulations of snow and ice blocking 78; McAuley v. Boston, 113 Mass. up roads and endangering passage 503; Morse v. Boston, 109 Mass. 446; on sidewalks is treated in a subse- Williams v. Lawrence, 113 Mass. quent volume. See Stanton v. 506, note; Collins v. Council Bluffs, Springfield, 12 Cush. (Mass.) 566; 32 Iowa 324; Dutton v. Weare, 17 N. Stone v. Hubbardston, 100 Mass. 49, H. 34; Barton v. Montpelier, 30 Vt. 56; Nason v. Boston, 14 Allen 650; Providence v. Clapp, 17 How. (Mass.) 508; Hutchins v. Boston, 12 (U. S.) 161; Loker v. Brookline, 13 Allen (Mass.) 571, note; s. c. 97 Pick. (Mass.) 343; Ravage v. Ban- Mass. 272, note; Johnson v. Lowell, gor, 40 Me. 176. Contributory neg- 12 Allen (Mass.) 572, note; Cook v. ligence of traveller, injured in con- Milwaukee, 24 Wis. 270; s. c. 27 Wis. sequence of ice and snow in the 191; Perkins v. Fond du Lac, 34 road: Horton v. Ipswich, 12 Cush. 1086 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. caused, do not render a lot-owner liable for an injury caused by a de- fective sidewalk in front of his premises. The statute is construed as referring to active negligence contributing to the injury.^'* § 1213. Liability for the Falling of Dangerous Walls.a — If the owner of a house has constructed it in so faulty a manner, or suffered it to get out of repair, so as to endanger persons passing along the street, it becomes a nuisance,'^^'' , and, on familiar grounds, he is liable to any person sustaining special damage thereby.^^" But, if there is no fault in respect of its construction or repair, he will not be re- sponsible from the fact that another person throws down something from its roof, which injures a passer-by, — as, where the child of a tenant negligently knocked a brick from the coping of a chimney.^ ^^ The owner of a building adjoining or near the public street, who per- mits it to get out of repair so that it falls, must pay damages to any one thereby injured, although it may have fallen in consequence of a storm of unusual violence. The fact that it fell is prima facie evi- dence of negligence, in conformity with the maxim res ipsa loqui- tur.'^^' This liability rests prima facie upon. the owner of the build- ing, and it is not necessary to show that he was the occupant of it.^^^ If the wall has been erected by several joint owners, and they allow it to remain unsupported after it has become obviously dangerous, and it falls, killing or injuring a traveller on the street, such joint owners are jointly and severally liable in damages.^^* The owner of such a wall, allowed to stand after it has become dangerous, is, in a primary sense, the author of the public nuisance thereby accruing, and it will consequently not relieve him from damages caused by its fall that a city officer promised to take charge of it and to take it down if neces- sary.'-" (Mass.) 488; Wilson v. Charlestown, (Mass.) 17; Shipley v. Fifty Asso 8 Allen (Mass.) 137; Holman v. ciates, 101 Mass. 251; Hadley v. Tay Townsend, 13 Mete. (Mass.) 297. lor, L. R. 1 C. P. 53; Kearney v, ""Selleck V. Tallman, 93 Wis. 246; London &c. R. Co., L. R. 6 Q. B, s. c. 67 N. W. Rep. 36. 759; Welfare v. London &c. R. Co. a This section is cited in §§ 1055, L. R.. 4 Q. B. 693; Vincett v. Cook, 1199, 1245. This subject has heen 4 Hun (N. Y.) 318. considered more extensively in a ^" Scullin v. Dolan, 4 Daly (N. Y.) former chapter: Ante, § 1055, et seq, 163. ""Rector of Church of Ascension "= Vincett v. Cook, 4 Hun (N. Y.) V. Buckhart, 3 Hill (N. Y.) 193; 318; Murray v. McShane, 52 Md. Reglna v. Watts, 1 Salk. 357. 217; s. c. 36 Am. Rep. 367. "»Eakin v. Brown, 1 B. D. Smith "= O'Connor v. Curtis (Tex.), 18 (N. Y.) 36; Mullen v. St. John, 57 S. W. Rep 953 (no off. rep.). N Y. 567; Lowell v. Spaulding, 4 "'Simmons v. Everson, 124 N. Y. Cush. (Mass.) 277; Oakham v. Hoi- 319; s. c. 26 N. E. Rep. 911; 36 N. Y. brook, 11 Cush. 299; Deford v. The St. Rep. 265. State, use of Keyser, 30 Md. 179; ^'^ Anderson v. East, 117 Ind. 126; Whalen v. Gloucester, 4 Hun (N. s. c. 19 N. E. Rep. 726; 2 L. R. A. y.) 24; Milford v. Holbrook, 9 Allen 712; 28 Cent. L. J. 362. 1087 1 Thomp. Neg.J negligence in relation to the highway. § 1214. Liability for Suspending Objects Above the Street or Side- walk which Fall upon Travellers.^ — We may here recur to the English doctrine of Fletcher v. Rylands^^^ and Bower v. Peate,^^'' which, broadly stated, is that where one does, on or about his own property, an act in its nature dangerous to others, he is bound to see that it does not result in injury to others. We apprehend that neither the English nor the American courts would now state the doctrine as broadly as it was laid down in the former case. If the act were not in itself unlaw- ful, the actor would not be bound at his peril to guard others from in- jury from it ; he would not be an insurer of the safety of others in re- spect of it. But it would impose on him a degree of care in proportion to the danger to others which he had thus created ;^^' and his obliga- tion in this respect would be so imperative that he could not discharge his duty to the public by passing it over to another, however careful or skillful that other might be.^^® This doctrine is of peculiar appli- cation where persons, for their private benefit, suspend objects above sidewalks or other public ways. As gravitation is constantly exerting itself to bring such an object down upon travellers, he must exercise constant watchfulness to see that such a catastrophe does not take plaee.^^" In the case where objects overhang the sidewalk, the dan- ger to passers-by is so great as, upon ordinary considerations of social duty, to impose upon the owner the duty of active and continuing in- spection, so as to keep such objects safe from falling. Obviously, he will not be allowed to plead ignorance of the dangerous condition of the premises; since, in such a case, negligent ignorance will be im- puted to him as actual knowledge. For example, if an overhanging a This section is cited in §§ 1199, Mauerman v. Siemerts, 71 Mo. 101 ; 1245. Dehring v. Comstock, 78 Mich. 153; "»3 Hurl. & Colt. 774; s. c. 1 s. c. 43 N. W. Rep. 1049; Hungerford Thomp. Neg., 1st ed., 2. v. Bent, 55 Hun (N. Y.) 3; s. c. 28 ^"1 Q. B. Div. 321; ante, § 25. N. Y. St. Rep. 191; 18 N. Y. Supp. ^" See Schell v. Second National 614; Hogan v. Manhattan R. Co., 6 Bank, 14 Minn. 43; Klauder v. Mc- Misc. (N. Y.) 295; s. c. 58 N. Y. St. Graith, 35 Pa. St. 128; Seabrook v. Rep. 149; 26 N. Y. Supp. 792. Hecker, 4 Robt. (N. Y.) 344; s. c. '^" As to the duty cast upon mMmc- 2 Robt. 291. ipal corporations in respect of the "'Bower v. Peate, 1 Q. B. Div. 321; protection of travellers from objects Tarry v. Ashton, 1 Q. B. Div. 314; above the highway, see Jones v. Bos- Franke v. St. Lonis, 110 Mo. 516; s. ton, 104 Mass. 75; West v. Lynn, c. 19 S. TV. Rep. 938; St. Louis &c. R. 110 Mass. 514; Taylor v. Peckham, Co. V. Hopkins, 54 Ark. 209; s. c. 15 8 R. I. 349; Drake v. Lowell, 13 S. W. Rep. 610; 12 L. R. A. 189; An- Mete. (Mass.) 292; Day v. Milford, derson v. East, 117 Ind. 126; s. c. 19 5 Allen (Mass.) 98; Pedrick v. N. E. Rep. .726; 2 L. R. A. 712; 28 Bailey, 12 Gray (Mass.j 161; Hume Cent. L. J. 362; Murray v. McShane, v. New York, 47 N. Y. 639; s. c. 9 52 Md. 217; s. c. 36 Am. Rep. 357; Hun (N. Y.) 674; Parker v. Macon, O'Connor v. Curtis (Tex.), 18 S. W. 39 Ga. 725; Grove v. Fort Wayne, 45 Rep. 953 (no off. rep.); Clarke v. Ind. 429; Hixon v. Lowell, 13 Gray Rhode Island Electric Light Co., 16 (Mass.) 59; Neuert v. Boston, 120 R. I. 463; s. c. 17 Atl, Rep. 59; Mass. S38. 1088 OBSTRUCTING AXD ENDANGERING TRAVEL. [2cl Ecl. cornice falls on the sidewalk, injuring a person lawfully there, the nails fastening it having become loosened by ordinary decay, the owner of the building will not be heard to set up his want of knowl- edge of its condition, if the defect could have been ascertained by rea- sonable inspection.^ ^^ § 1215. Whether the Person Suspending Objects above the Street or Sidewalk Liable as an Insurer or for Want of Reasonable Care.' — This question must be answered with reference to the inquiry whether the act of the person so suspending the object is within his lawful rights and consistent with the easement which the public have in the street or sidewalk; or whether it is unlawful, and hence a nuisance per se. If the former, then upon the analogies elsewhere consid- ered,^^^ he is liable only for the failure to exercise reasonable care to the end that it shall not become detached and fall, to the injury of passers-by ; but if the latter, then, without any reference to the care he may have exercised, he is answerable as an insurer against the conse- quences of his unlawful act. In a ease in the Queen's Bench Division, two out of three judges have declared in substance that a man who, for his own beneiit, suspends an object, or permits it to suspend, over the highway, and puts the public safety in peril thereby, is under an absolute duty to keep it in such a state as not to be dangerous. The facts of the case were these : The defendant became the lessee and occupier of a house, from the front of which a heavy lamp projected several feet over the public foot-pavement. As the plaintiff was walk- ing along, in November, the lamp fell on her and injured her. It ap- peared in evidence that, in the previous August, the defendant em- ployed an experienced gas-fitter to put the lamp in repair. At the time of the accident, a person employed by the defendant was blowing the water out of the gas-pipes of the lamp, and in doing this a ladder was raised against the lamp-iron, or bracket, from which the lamp hung; and on the man mounting the ladder, owing to the wind and wet, the ladder slipped, and he, to save himself, clung to the lamp- iron, and the shaking caused the lamp to fall. On examination, it vras discovered that the fastening by which the lamp was attached to the lamp-iron was in a decayed state. The jury found that there had been negligence on the part of the gas-fitter, but no negligence on the part of the defendant personally; that the lamp was out of repair through general decay, but not to the knowledge of the defendant; that the immediate cause of the fall of the lamp was the slipping of the ladder; but that if the lamp had been in good repair, the slipping '"Roberts v. Mitchell, 21 Out. App. "^'Ante, §§ 1188, 1199, et seq. 433. VOL. 1 THOMP. NEG. — 69 lUoy 1 Tliomp. Neg.] negligence in relation to the highway. of the ladder would not have caused the fall. Upon this, it was held that the plaintiff was entitled to a verdict, by Lush and Quain, JJ., on the ground that if a person maintains a lamp projecting over the high- way, for his own purposes, it is his duty to maintain it so as not to be dangerous to passengers ; and if it causes injury, owing to want of re- pair, it is no answer, on his part, that he had employed a competent man to repair it ; and by Blackburn, J., on the ground that, it having been shown that the defendant knew that the lamp needed repair in August, it was his duty to put it in reasonable repair ; and the person he employed having failed to do so, the defendant was liable for the consequences of this breach of duty.^"^ If, in addition to its being thus dangerous, the object is placed above the highway in violation of positive law, the proprietor becomes an insurer in respect of it. Thus, one who placed a swinging sign over the sidewalk, in violation of a city ordinance, was held responsible for an injury happening in conse- quence of its being blown down in a gale, though of unprecedented violence. ^^* § 1216. This Liability, how Affected by the Intervening Act of a Stranger. — The owner may be liable even where the building was made dangerous by the act of a stranger, if he suffers it to remain so for some time^^^ Thus, where a telegraph company fastened their wire to the chimney of a house, so as to make it unsafe, and liable to fall into the street, and it did fall on a person passing by, it was held that, though as a general thing when a stranger does a negligent or unlawful act on the land or building of another, whereby injury re- sults to a third party, the owner is not liable therefor, — yet when the wrongful act of the stranger makes the building or land unsafe, and it is suffered to remain so for a long time, the owner will be liable. Accordingly, the owner was held liable in this case, even though he did not know that the danger existed, for it was held his diity to see that his premises were safe.^^" So, the negligence of an occupier in placing on the sidewalk an iron post used as a barber's pole, did not exonerate another person from liability who negligently knocked it over by backing a wagon against it, causing it to strike a, person on the sidewalk.^^' § 1217. Fall of sucli Objects Presumptive Evidence of Negli- gence. — That the fall of an object from any building or structure in ™ Tarry v. Ashton, 1 Q. B. Div. '"^Gray v. Boston Gas Light Co., 314. 114 Mass. 149. ^ Salisbury v. Herschenroder, 106 '" L. Wolff Man. Co. v. Wilson, 152 Mass. 58. Ill- 9; s. c. 26 L. R. A. 229; 38 N. B. ^ Compare ante, § 8. Rep. 694. 1090 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. the occupation and under the control of the defendant, upon the street or sidewalk where persons are passing is prima facie evidence of negli- gence under the maxim res ipsa loquitur, is illustrated by many cases, — among them by a case where an iron bar fell from the trestle of an elevated railway.^^* So where an abutting occupier maintained a heavy sign overhanging a sidewalk in a much frequented part of the city, it was held that negligence would be presumed from the fact that it fell, injuring a passer-by, in the absence of evidence that the fall took place under circumstances outside of the ordinary course of things.^^^ In such a case, the fact that the overhanging sign falls during a high wind in March, does not rebut this presumption of negligence, or impute the catastrophe to the act of God,— since it is the duty of occupiers of buildings hanging such objects above the sidewalks to make them secure against the force of winds which may be expected in the regular course of the seasons."" § 1218. Illustrations of this Liability.^ — Evidence of negligence sufficient to take the question to the jury has been found in the fact that the servant of an electric light company left a ladder on a narrow sidewalTc, leaning against a building in a gangway, which was likely to be used, and while the wind was blowing strongly and with unsteady gusts ;^^^ where the defendant, in the act of tearing a building down, erected a barrier across the sidewalk, leaving an opening therein large enough for a grown person to enter, and pass by the house, and a girl eleven years old went round the barrier walking in the gutter, and then stepped back upon the sidewalk, and was hit by a falling iriclc;^^^ where the defendant threw down hales of hay from a loft in a build- ing upon the sidewalk, instead of lowering them with a tackle or sliding them down, without first looking to see if any one was passing on the sidewalk, and one so passing was thereby injured.^^^ In case of a thing so obviously dangerous as a sign on the face of a building, the owner is bound so to secure it that it will withstand the force of gales which experience shows are likely to occur in the particular climate, although more severe than ordinary winds.^^* '^ Hogan V. Manhattan R. Co., 26 ^ Railway Co. v. Hopkins, 54 Ark. N. Y. Supp. 792; s. c. 6 Misc. (N. Y.) 209; s. c. 19 S. W. Rep. 610; 12 L. R. 295; 58 N. Y. St. Rep. 149. Liability A. 189. for an injury caused by the fall of a This section is cited in § 1199. a hoisting apparatus placed in posi- '=' Clarke v. Rhode Island Elec. tion by a former tenant: Hunger- L. Co., 16 R. I. 463; s. c. 17 Atl. Rep. ford V. Bent, 55 Hun (N. Y.) 3; s. c. 59. 28 N. Y. St. Rep. 191; 18 N. Y. Supp. ""Mauerman v. Siemerts, 71 Mo. 614. 101. "^ Railway Co. v. Hopkins, 54 Ark. ''' Dehring v. Comstock, 78 Mich. 209; s. c. 19 S. W. Rep. 610; 12 L. R. 153; s. c. 43 N. W. Rep. 1049. A. 189. "* Morris v. Strobel &c. Co., 81 1091 1 Thomp. Neg.] negligence in relation to the highway, § 1219. Adjacent Owners and Occupiers Not Liable for Injuries Produced by Accumulations of Snow and Ice on the Sidewalk from Natural Causes. — The owners and occupiers of premises abutting a street in a city are not responsible to individuals for injuries resulting from a failure to remove from the sidewalk accumulations of snow and ice created by natural causes, although there is a valid ordinance requiring them to remove such accumulations. The only liability is, to pay the penalty prescribed by the ordinance.^*^ The liability to pay damages rests on the municipal corporation charged with the re- pair of streets. Accumulations of snow or ice caused by its falling from the roof of an owner or occupier are within this rule.^^* The propriety of the rule is clear where the ice is formed by natural causes and there is no defect in the premises, no interference by the defend- ant with the sidewalk, and no duty imposed on him by statute or ordi- nance to take care of the sidewalk. ^^^ § 1220. What Temporary Obstructions of the Street Permissi- ble.^ — Although the rights of adjoining proprietors and occupiers are always subordinated to the public easement,^ ^* yet cases frequently arise where, upon a principle of necessity, ^^'^ and out of consideration of the fact that they are the owners of the fee,^*° such persons are per- mitted partially and temporarily to obstruct the highway, and are not liable in damages therefor. For Example, to use the language of Cassoday, J., — "Business men and their employes must have access to and from their places of business, and so must their customers. Deal- ers, and especially wholesale dealers in the crowded portion of a large city, * * * mustj moreover, have an opportunity for receiving and shipping goods more or less bulky and ponderous, and often in the original packages. Such reception and shipment of goods must neces- sarily at times more or less hinder or obstruct travel upon public side- walks, and even upon public streets. The right to so hinder or ob- Hun (N. Y.) 1; s. c. 62 N. Y. St. 14 Gray (Mass.) 249; Flynn v. Can- Rep. 572; 30 N. Y. Supp. 571; 27 ton Co., 40 Md. 312. Chic. Leg. N. Ill ; 2 Ohio Leg. N. '=" Kirby v. Boylston Market Assc, 59. Compare Salisbury v. Hersch- 14 Gray (Mass.) 249. enroder, 106 Mass. 458. That one- '"Moore v. Gadsden, 87 N. Y. 84; engaged in taking down a building s. c. 41 Am. Rep. 352. is not bound to anticipate and guard a This section is cited In § 648. against the dangers to which other '^ Jones v. JHousatonic R. Co., 107 persons employed about the building Mass. 261. are exposed, Mueller v. Schwecht, ™ The Commonwealth v. Pass- 62 111. App. 622; s. c. 1 Chic. L. J. more, 1 Serg. & R. (Pa.) 217, 219; Wkly. 87, is a very poor concep- Graves v. Shattuck, 35 N. H. 257; tlon, — the law, on an obvious prin- Clark v. Fry, 8 Ohio St. 358, 374. ciple of social duty and humanity, '" O'Linda v. Lothrop, 21 Pick, being exactly the other way. (Mass.) 292; Hundhausen v. Bond, '== Kirby v. Boylston Market Asso., 36 Wis. 29. 1092 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. struct is by no means absolute or continuous. It is, at most, tempo- rary. It depends upon the necessity, and the necessity may depend upon the size and weight of the packages handled, the duration of the obstruction, and perhaps other circumstances. 'This necessity need not be absolute; it is enough if it be reasonable.'^ *^ If the law re- quired an absolute necessity, but few could escape liability.""^ It has been held that an adjacent occupier so temporarily obstructing the street for the necessities of his business is under no obligation to fur- nish pedestrians with a safe passage around the obstruction. When they find the obstruction in their pathway, they must either wait until it is removed or cross the street and pass on the other sidewalk, and if they cast themselves upon the obstruction and are hurt, they can not recover damages.^*^ § 1221. Limitations upon this Right to Obstruct the Streets. — The books justify the statement that there is a twofold limitation of this right : 1. An adjacent occupier has no right to use the street for the mere purpose of carrying on his business. The street is intended primarily for public passage; therefore if an auctioneer, '^*'^ or a con- stable,'^*'^ uses the sidewalk to store the goods which he intends for sale or conducts a public sale thereon, gathering a crowd, he is indictable for a public nuisance. On this ground, it was held an indictable offense for the drivers of stage coaches to ply for passengers in the public streets ;^*° though the soundness of this case may be doubted, and at least the decision did not break up the practice which is in full vogue in London at the present day. So, it has been held an indict- able offense for a timber merchant to cut logs of timber in the street adjoining his timber yard, though he could not otherwise get them into his premises, or carry on his business there.^*' 3. An adjacent occu- pier has no right, for the mere purpose of receiving and discharging goods at his place of business, to maintain a general and continuous interruption of public travel on the street. In such a case it was said "that if the nature of the defendant's business were such as to require ^'^ Citing Com. v. Passmore, 1 ture of navigation at the suit of the Serg. & R. (Pa.) 219; People v. Cun- attorney-general: People v. Horton, ningham, 1 Denio (N. Y.) 530. 64 N. Y. 610; reversing s. c. 5 Hun '"Jochem v. Robinson, 66 Wis. (N. Y.) 516. 638. The doctrine is the same, and on "' Welsh v. Wilson, 101 N. Y. 254; parallel grounds, with regard to the s. c. 54 Am. Rep. 698. right temporarily to obstruct a pub- '« Com. v. Passmore, 1 Serg. & R. lie navigation, as, for example, by (Pa.) 217. a floating elevator used in loading "' Com. v. Milliman, 13 Serg. & R. and unloading grain in a canal in a (Pa.) 402. city. Such temporary obstruction "» Rex v. Cross, 3 Camp. 224. can not be enjoined as a purpres- "' Rex v. Jones, 3 Camp. 230. 1093 1 Thomp. Neg.] negligence in relation to t^e highway. the loading and unloading of so many more of his wagons than could conveniently be contained within his own private premises, he must either enlarge his premises or remove his business to some more con- venient spot."^** Outside of these principles, it is obvious that one who assumes to make use of a public street for the purposes of his busi- ness is bound to do so carefully, — that is to say, although he may make use of it rightly, yet if he piles his goods thereon so negligently that they fall down, injuring a passer-by, he will be liable in an action for damages.^** § 1222. Temporary Obstructions in the Operations of Building.^ — Under- the foregoing- principle, an adjoining owner may place build- ing materials on a portion of the highway and allow them to remain there a reasonable length of time, where it is necessary to do so in order to enable him to erect a building on the line of the highway. ^^^ "* Rex v. Russell, 6 East 427, 430. A very apt illustration of this doc- trine is found in a case where the proprietors of a distillery in the city of Brooklyn were in the habit of delivering tLtir slops to those who came for tlinrn. by passing them through pipes to Ihe public street opposite their distillery, where they were received into casks standing on wagons and carts. The teams and carts of the purchasers were ac- customed to collect there in great numbers to receive and take away the slops. In consequence of their remaining there to await their turns, of the strife among the driv- ers for priority, and of their disor- derly conduct, the street was ob- structed and rendered inconvenient to those desiring to pass thereon. It was held that the proprietors of the distillery were indictable as for a public nuisance. The fact that the teams and carts were not owned by the defendants, or under their control, did not excuse them; since they impliedly invited their assem- blage at the place where the slops were delivered. Proof of strife and collision among the drivers while awaiting their turns was held to be competent evidence of the fact of the obstruction of the street: People V. Cunningham, 1 Denio (N. Y.) 524. Compare, on this subject, Den- by V. Wilier, 59 Wis. 240, which pro- ceeded on the ground of negligence, but which was complicated by the fact of a municipal ordinance regu- 1094 lating the temporary occupancy of the sidewalks by merchants, and which was "distinguished" in the subsequent case of Jochem v. Robin- son, 66 Wis. 638, 642. "" Maddox v. Cunningham, 68 Ga. 431; s. c. 45 Am. Rep. 500. That a merchant leaving a box upon the sidewalk in front of his store for an unreasonable time, is liable to a pedestrian who tears Ms clothing by coming in contact with a pro- truding nail thereon, — see McCarten V. Flagler, 69 Hun (N. Y.) 134; s. c. 52 N. Y. St. Rep. 743; 23 N. Y. Supp. 263. That an abutting owner may lawfully obstruct a sidewalk tem- porarily for the purpose of receiv- ing and shipping goods at and from his store, and is not liable for injury to a person passing along the walk who could otherwise avoid the ob- struction, or wait, or who fails to exercise reasonable care in choosing the manner of passing over it and in the act of passing, — see Berdan v. Brownlee, 12 Ohio C. C. 269. a This section is cited in §§ 648, 1188, 1255. ™Mallory v. Griffey, 85 Pa. St. 275; Palmer v. Silverthorn, 32 Pa. St. 65 (recognized in The People v. Cunningham, 1 Denio (N. Y.) 524); Wood V. Mears, 12 Ind. 515; Hund- hausen v. Bend, 36 Wis. 29; O'Linda V. Lothrop, 21 Pick. 292, 297. See also Hayes v. Williams, 17 Colo. 465, 473; s. c. 30 Pae. Rep. 352. We shall hereafter consider the liability of persons who, in the operations of OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. In closely built cities, unless the use of a portion of the streets for the temporary storing of building materials during the erection of build- ings were permitted, the work of building could not be carried on. On the other hand, travel is so much more frequent in such- places that there is a much greater necessity for keeping the streets unob- structed. The adjustment of these conflicting rights is, it is believed, in most large cities, regulated hy ordinance,^^'^ a violation of which by a builder subjects him to liability for any resulting special damages, — as, where he places building materials in the street without procuring the necessary license.^^^ On the other hand, such an ordinance, if valid, is a protection to any person acting under it without negli- gence.^ °^ § 1223. What Obstructions in Building Deemed Negligence. — Negligence has been ascribed to the following acts or omissions of own- ers or building contractors: — For a building contractor to deposit building materials on the sidewalk, and to fail to fence off that part of the sidewalk on which the •obstructions have been placed, or to take care that a barrier placed by him there shall not be removed at night by mischievous or disorderly persons;^''* for one who has obtained permission from the city to occupy a third of a street with building materials, and who collects all such materials in a single pile except one stone, with which a person driving along the street in his carriage comes into collision, although such stone lies within that part of the street which the builder is permitted to occupy ;^^^ where an owner directs large building stones to be piled up within the limits of the public street in front of premises on which he is erecting a building, close to the space left open for public travel, so insecurely that one of them is thrown down by a passing vehicle coming into collision with it.^^° One who, in the process of building, operates a derrick, some building, allow bricks, tools, and "'Weick v. Lander, 75 111. 93. other objects to fall upon persons "' Wood v. Hears, 12 Ind. 515. passing along the sidewalk: Post, '"Beck v. Hood, 185 Pa. St. 32; § 1245. See also Eccles v. Darragh, s. c. 39 Atl. Rep. 842. 46 N. Y. Super. 186. The owner of "^ Brousseau v. Bourdon, Rap. a ferry-house is not liable for Inju- Jud. Quebec, 13 C. S. 46. ries to a person who after disem- '*' Mahar v. Steuer, 170 Mass. 454; barking from a ferry-boat slips upon s. c. 49 N. B. Rep. 741. Nor did it gravel on the sidewalk, which has make any difference that it was the been dislodged from the roof of the duty of the contractor, under his ferry-house by the workmen em- contract with the owner, to deliver ployed thereon, where such owner and deposit the stones in a safe has not allowed such gravel to re- place and in a safe manner, — the main on the sidewalk an unreason- owner in fact being in control: able length of time: O'Reilly v. Long Mahar v. Steuer, supra. But where Island R. Co., 4 App. Div. (N. Y.) a contractor furnished stones used 139; s. c. 38 N. Y. Supp. 779. about the steps and foundations of '"Wood V. Mears, 12 Ind. 515; a building in process of erection, Hundhausen v. Bond, 36 Wis. 29. and put a block of stones on a side- 1095 1 Thomp. Neg.] negligence in relation to the highway. of the guys supporting which extend over a much-travelled sidewalk, is under a duty to the travelling public to exercise a degree of care proportioned to the danger to them, to the end of securing the various guys, so that they will not give way ; and if, by means of such derrick, he attempts to raise a ledge of rock weighing about seventy-five tons,^"' where the derrick is constructed to raise only about ten tons at a time, and, in such attempt the chain catches, leading to an accident, there will be a question of negligence to go to the jury.^°* It will be a fair question for a jury in such a case, whether the operator of the derrick is not guilty of negligence in failing to place a cover over the sidewalk below one of the guys supporting the derrick.^ °° § 1224. Whether Obstruction is Heasonable is a ftuestion of Fact. — Whether or not a particular obstruction is reasonable is gener- ally a question of fact, to be resolved, on a bill to enjoin the commit- ting of the alleged nuisance, by the chancellor,^®" and on an indict- ment, or in an action for special damages, by the jury.^"^ The ques- tion can not be resolved by any definition or other abstract statement of legal doctrine; but it is in general a relative question, depending upon all the circumstances surrounding the particular case. "It is true that necessity justifies actions which would otherwise be nui- sances. It is true, also, that this necessity need not be absolute; it is enough if it be reasonable. No man has a right to throw wood and stones into the street at his pleasure. But inasmuch as fuel is neces- sary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand, and other materials may be placed in the street, provided it be done in the most convenient manner. On the same principle, a merchant may have his goods placed in the street for the purpose of removing them to his store in a reasonable time. But he has no right to keep them in the walk and had control of them while passer injured upon a plank "run- there, this did not necessarily make way" from the building, under the him liable for an act of negligence sidewalk, erected solely for their on the part of the owner resulting own convenience, in failing to make in an injury to one using the street, such "runway" safe for the accom- who ran against the stones: Beck modation of trespassers: McNeven V. Hood, 185 Pa. St. 32; s. c. 39 Atl. v. Arnott, 4 App. Div. 133; s. c. 38 Rep. 842. N. Y. Supp. 759. "'Rosenhain v. Galligan, 5 App. ""Attorney-General v. Sheffield Div. (N. Y.) 49; s. c. 38 N. Y. Supp. Gas Consumers' Assn., 19 Bng. Law 713. & Eq. 639. '=' Rosenhain v. Galligan, supra. '" The Commonwealth v. Pass- ""Rosenhain v. Galligan, supra, more, 1 Serg. & R. (Pa.) 217; Graves Builders who have made an excava- v. Shattuck, 35 N. H. 257; Hundhau- tion in front of the building under sen v. Bond, 36 Wis. 29; Stratton v. the sidewalk, not liable to a tres- Staples, 59 Me. 94. 1096 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. street for the purpose of selling them there, because there is no neces- sity for it."^^'' "If I were to station a cart in a street, opposite my door, obstructing the public highway, I might be guilty of a nuisance, for aught I know, and I might be liable to be indicted ; but it would be a sufficient answer to say that the cart was there only a reasonable time, for a lawful purpose. If it is used in the way such things are ordinarily used, it can not be a nuisance so to use it. The public highway is for the convenience of mankind, and so to use it can not be a nuisance. One of the uses is, that a person travelling with a cart or carriage may draw up at a particular door and get down, according to his lawful occupation. So, again, if I have a cart come to my house with five or six tons of coals, of course it would be some time obstruct- ing the public highway ; but it is difficult to maintain that in an ordi- nary street that would be a nuisance. All these cases of nuisance or no nuisance, arising from particular acts, must, from the nature of things, be governed by particular circumstances. Now, if a carriage were to drive up in Belgrave Square, and stand half a day at the door of a house, waiting for some person calling there, I do not think that that could be made out to be nuisance. It may be said, Tou staid there an unreasonable time.' It may be so, but it would be difficult indeed to make out that that was a nuisance. But suppose the same thing happened in the street that runs from Covent Garden to St. Martins Lane ; a man calling there and saying, 'I mean to have a chat for half an hour,' I do not know that that would not be a nuisance. You must be guided by the particular circumstances ; you must look at the particular place or object that: the parties have in view. I take it that all these questions are of this nature: Are you using the matter which is the subject-matter of inquiry in a reasonable way, and are those the uses for which it was contemplated?"^"^ "Very much," said another able judge, "depends upon the locality, the width of the highway, and the time it may be obstructed by the alleged nuisance. What would be a reasonably free passage for the public, what would be a reasonably safe and convenient road for the accommodation of the public travel, in a remote, sparsely populated rural district, might and generally would not be so in a compact city, or a large and popu- lous village. So, too, in a village or city, what would be no obstruc- tion in a broad street, little frequented, might be very objectionable, if not an absolute nuisance, in a narrow business thoroughfare."^"* Of the cases where it was held proper to submit the question of negli- "=The Commonwealth v. Pass- Consumers' Assn., 19 Bng. Law & more, 1 Serg. & R. (Pa.) 219, per Bq. 639, 652; s. c. 17 Jur. 677; 22 Tilghman, C. J. L- J- Ch. 811. '»^Lord Chancellor Cranworth, in >"' Graves v. Shattuck, 35 N. H. Attorney-General v. Sheffield Gas 265. 1097 1 Thomp. Neg.J negligence in relation to the highway. gence in the defendant to the jury, some, resting on numerous or peculiar facts, need only be cited. ^"^ § 1225. Excavations in the Street in the Operations of Building and Repairing.* — An excavation connected with the erecting of a building fronting upon the street is not necessarily or intrinsically un- lawful ; but whether it becomes unlawful depends on whether it is ex- tended to an unnecessary or unreasonable distance into the street; whether it is made in an improper and dangerous manner ; or whether, through negligence, it is left insufficiently guarded by a fence, or allowed to continue an unreasonable length of time; all of which questions are, as in like cases, for the jury^^^ But here the general rule applies, that if a person, for his own private advantage, makes an excavation in the street, and fails to surround it with suitable barriers, he is responsible for any injury caused thereby. ^°'' 'Sot is this prin- ciple confined to excavations made within the boundaries of a public street. If the person engaged in the operation of building makes an excavation so near the line of the public street that passers-by upon the street are liable to fall into it through the ordinary accidents of travel, then he is under the same duty of guarding it that he would be under if it were within the boundaries of the street; and he must answer in damages to any one injured through a neglect of this duty.'"^ It is no defense to an action for injuries received by a traveller in falling into the unguarded excavation left in the street in the operation of building, that there was a good and unobstructed side- walk on the opposite side of the street;^"" though if a traveller should walk into such an excavation recklessly, that would obviously be a defense.^'" '""Stratton v. Staples, 59 Me. 94; "» Stuart v. Havens, 17 Neb. 211; Thayer v. Jarvis, 44 Wis. 388. post, § 1274. a This section is cited in § 1276. ""Ante, §§ 186, 187. That one ""Clark V. Fry, 8 Ohio St. 358, who digs an excavation across a 376, 377. sidewalk in front of his lots, as a "' Ante, §§ 1190, 1191 ; Ottumwa v. mere employe under the control of Parks, 43 Iowa 119; Murphy v. and direction of another, is not lia- Brooks, 109 Mass. 202; Durant v. ble for injuries to a third person Palmer, 29 L. J. L. 544; Beck v. arising from a failure properly to Carter, 68 N. Y. 283 ; Homan v. Stan- guard the excavation at night, — see ley, 66 Pa. St. 464; Bateman v. Ruth, Jessup v. Sloneker, 142 Pa. St. 527; 3 Daly (N. Y.) 378; Sexton v. Zett, s. c. 21 Atl. Rep. 988. Circum- 44 N. Y. 430; Silvers v. Nerdlinger, stances under which a non-resident 30 Ind. 53; Baxter V. Warner, 6 Hun land-owner was exonerated from (N. Y.) 585; Chicago v. Rohhins, 2 liability for the act of a plumber. Black (U. S.) 418; Robbins v. Chi- employed by a rental agent of such cago, 4 Wall. (U. S.) 657. land-owner, in digging a ditch to '°° South Omaha v. Cunningham, connect the house with a public 31 Neb. 316; s. c. 47 N. W. Rep. 930. sewer, and leaving the excavation Compare post, § 1228. unguarded at night: Crandall v. Loomis, 56 Vt. 664. 1098 OBSTRUCTING AND ENDANGERING TRAVEL. [2(i Ed. § 1226. Ordinances Licensing or Regulating such Excavations. — The ordinances of most cities, it is believed, exact, for the purpose of promoting the public safety, that one who proposes to excavate or otherwise obstruct the public street, for the purpose of building, must first procure a license therefor. Where a person, in preparing to build a house in a city, extended his cellar across the sidewalk without pro- curing a license so to^ do, he was held liable for all damages arising from such unauthorized excavation, the party receiving the injury thereby having exercised reasonable care for his own safety. In such case, the only question is whether the party exercised reasonable care and diligence, without reference to the question whether the excavation was well guarded or not. Even the license of the city would not authorize an individual to make an excavation in a public street and leave it insufficiently guarded. But where the excavation is made without license^ it matters not, as respects the liability of the indi- vidual, how well he has guarded it.^'^ Although a person, in the operation of building, removes the sidewalk under a valid license from the city authorities, yet if he constructs a temporary bridge across it for the use of the public, he is bound to exercise reasonable care to the end that it shall be safe, and is answerable in damages to a traveller hurt by its breaking down; since, although he may not have been bound to build it, yet by so doing he impliedly invites the public to use it, and recommends it as being safe for their use.^'- Where, in a like situation, it becomes necessary to excavate in order to build, the dirt may be thrown out upon the street, with the limitation that the ob- struction must not be unreasonable in extent or duration ;^^^ and there seems little doubt that such a proprietor, who owns the fee to the central line of the street, may use one-half of the street for a rea- sonable time for the deposit of such excavated earth, without being liable in damages to a traveller who has collided with it.^^* A city ordinance requiring any owner or contractor constructing any build- ing abutting on a sidewalk, to build a roofed passageway in front of the building above the sidewalk, after the completion of the first story, is a reasonable one; and any owner or contractor who fails to ™Pfau V. Reynolds, 53 111. 212; bridge." Nolan v. King, supra, ante, § 1188. Compare Rehberg v. New York, 91 "2 Nolan V. King, 97 N. Y. 565; N. Y. 143, and Brusso v. Buffalo, 90 s. c. 49 Am. Rep. 561. He is not, N. Y. 679, — both cited by the court however, an insurer of its safety, to the principle that one partially and therefore it is error to instruct obstructing a street in the opera- the jury that he is "under a liabil- tions of building can not keep the ity to have the bridge constructed street as safe for travel as it was in such a manner that the public before such occupation, would not be subjected to any more "' Hundhausen v. Bond, 36 Wis. personal risk than if the sidewalk 29. had been there instead of the "'Hundhausen v. Bond, supra. 1099 1 Thomp. Neg.] negligence in relation to the highway. comply with such an ordinance is liable to a foot-passenger on the sidewalk, not guilty of contributory negligence, who is injured by a brich falling from the building.^' ° One who agrees to construct the iron work in a building, consisting of iron girders, beams, and floor joists set in the walls, is a "contractor" within the meaning of such an ordinance.^'® § 1227, Eeasonableness of Obstruction must be Pleaded. — The de- fensive pleader must, in such a case, aver that the obstruction was in consequence of a reasonable necessity , or he must set forth facts from * which such necessity can be inferred. A court can not infer such a conclusion from the fact that a building was being erected in a popu- lous and crowded city.^''' § 1228. liability of Land-owners for Excavations so Near the Highway as to Endanger Travel.^ — An owner of land is under no obligation to fence an excavation on his land, unless it is so near the highway as to amount to a public nuisance ; and if persons or animals are killed or injured in consequence of his failing to do so, no dam- ages can be recovered.^ '^ A qualification of this rule is, that when the owner of land, expressly or by implication, wviifes a person to come upon it, he will be liable for damages if he permit anything in the nature of a snare to exist thereon which results in injury fo such person, the latter being at the time in the exercise of ordinary care.^'^ If, however, he gives a bare license or permission to cross his premises, the licensee takes the risk of accidents in using the premises in the condition in which they are.^*° Within the meaning of the foregoing rule, a traveller may recover damages of the owner or occupier of premises, who, without fault on his part, has fallen into a hole abut- ting the highway,^^^ or in dangerous proximity to it,^^^ as, for in- ^'^ Smith V. Milwaukee Builders' shire R. Co., 4 Hurl. & N. 67 ; Vale &c. Exch., 91 Wis. 360; s. c. 30 L. R. v. Bliss, 50 Barb. (N. Y.) 358; Rob- A. 504; 64 N. W. Rep. 1041. bins v. Jones, 15 C. B. (N. S.) 221; "' Smith V. Milwaukee Builders' Gramlich v. Wurst, 86 Pa. St. 74. &c. Exch., 91 Wis. 360; s. c. 30 L. R. The subject is fully discussed in the A. 504; 64 N. W. Rep. 1041. preceding chapter; and see a "' Wood v. Mears, 12 Ind. 515. learned note, 26 L. R. A. 686. a This section is cited in §§ 1225, ""Beck v. Carter, 68 N. Y. 283; 1258. ante, § 968, et seq. ^'"Ante, § 946; Blyth v. Topham, i" Corby v. Hill, 4 C. B. (N. S.) Cro. Jac. 158; Bush v. Brainard, 1 556; Hounsell v. Smyth, 7 C. B. (N. Cow. (N. Y.) 78; Howland v. Vin- S.) 731; ante, § 946. cent, 10 Mete. 373; Hounsell v. ""Barnes v. Ward, 9 C. B. 392; Smyth, 7 C. B. (N. S.) 731; Binks s. c. 19 L. J. (C. P.) 195. V. South Yorkshire R. Co., 3 Best "'^ Saunders v. Reister, 1 Dak. Ter. & S. 244; Hardcastle v. South York- 151. 1100 OBSTRUCTING AND ENDANGERING TKAVEL. [2(1 Ed. stance, within fourteen inches of it;^^^ but where the excavation was twenty-four feet from the footway, there was no liability, although the intermediate space had become 'obliterated by persons travelling over it.^** The true distinction, taken by Chief Baron Pollock in a well- considered case, and adverted to with approval in other cases, was thus expressed: "When an excavation is made adjoining to a public way, so that a person walking upon it might, by making a false step, or being affected with sudden giddiness, or, in case of a horse or car- riage-way, might, by the sudden starting of a horse, be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences; but when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant's land before he reached it, the case seems to us to be different. We do not see where the liability is to stop. A man getting off the road on a dark night, and losing his way, may wander to any extent, and if the question be for the jury, no one can tell whether he is liable for the consequences of his act upon his own land or not. We think the proper and true test of legal lia- bility is, whether the excavation be substantially adjoining the way; and it would be very dangerous if it were otherwise, — if in every case it were left as a fact to the jury whether the excavation were suffi- ciently near to the highway to be dangerous."^ ''^ If an excavation has been made so near to a highway, since its dedication and adoption, as to create or increase danger to the public, and an accident happens thereby, the person making the excavation is not absolved from lia- bility by reason that a statutory obligation to fence the highway is imposed upon other parties, who have neglected to do so.^*" The same rule extends to municipal corporations, in respect of their lia- bility for damages arising from their failure to repair their highways. These bodies are not ordinarily bound to make repairs outside the travelled path;^^^ but a plain exception to this rule exists where there i«^Hadley v. Taylor, L. R. 1 C. P. Howard v. North Bridgewater, 16 53; s. c. 11 Jur. (N. S.) 979; 14 Pick. (Mass.) 189; Shepardson v. Week. Rep. 59; 13 L. T. (N. S.) Colerain, 13 Mete. (Mass.) 53; 368. Smith v. Wendell, 7 Cush. (Mass.) '»*Binksv. South Yorkshire R. Co., 498; Hall v. Unity, 57 Me. 529; Ma- 3 Best & S. 244. comber v. Taunton, 100 Mass. 255; •=» Hardcastle v. South Yorkshire Kelly v. Fond du Lac, 31 Wis. 179 ; R. Co., 4 Hurl. & N. 74. Similar Kellogg v. Northampton, 4 Gray views are embodied and applied in (Mass.) 69; Farnum v. Concord, 2 the opinion of Woodward, J., in N. H. 392; Willey v. Portsmouth, Gramlich v. Wurst, 86 Pa. St. 74. 35 N. H. 303, 312; Hull v. Richmond, ""Wettor V. Dunk, 4 Fost. & Fin. 2 Woodb. & M. 337, 343; Wright v. 298. Saunders, 65 Barb. (N. Y.) 214 (af- •" Leslie V. LewisVon, 62 Me. 468; firmed, 3 Keyes (N. Y.) 323); s. c. Morgan v. Halloweli, 57 Me. 375; 36 How. Pr. 136; Sykes v. Paulet, Philbrick v. Pittston, 63 Me. 477; 43 Vt. 446; Rice v. Montpelier, 19 1101 1 Thomp. Neg.] negligence in relation to the highway. are excavations or obstructions outside the travelled path, and so near thereto that, combining with the ordinary accidents of travelj they are liable to result in injury to the traveller. Here the corporation must remove the obstruction, or protect the traveller from it by suit- able barriers, or pay any resulting damages. '^^^ Vt. 470. Compare O'Laughlin v. Dubuque, 42 Iowa 539. "* Hayden v. Attleborough, 7 Gray (Mass.) 338; Burnham v. Boston, 10 Allen (Mass.) 290; Alger v. Low- ell, 3 Allen (Mass.) 402; Snow v. Adams, 1 Gush. (Mass.) 443; Collins V. Dorchester, 6 Gush. (Mass.) 396; Nichols v. Brunswick, 3 Cliff. (U. S.) 81; Palmer v. Andover, 2 Gush. (Mass.) 600; Stevens v. Box- ford, 10 Allen (Mass.) 25; Lyman V. Amherst, 107 Mass. 339; Babson v. Rockport, 101 Mass. 93; Britten v. Cummlngton, 107 Mass. 347; Puf- fer V. Orange, 122 Mass. 389; Willey V. Portsmouth, 35 N. H. 303; Hey v. Philadelphia, 81 Pa. St. 44; Lower Macungie Township v. Merkhoffer, 71 Pa. St. 276; Aurora v. Colshire, 55 Ind. 484; Cassedy v. Stockbridge, 21 Vt. 391; Hyatt v. Rondout, 44 Barb. (N. Y.) 391; Norris v. Litch- field, 35 N. H. 271; Ken worthy v. Ironton, 31 Wis. 647; Woods v. Gro- ton. 111 Mass. 357; Leicester v. Pittsford, 6 Vt. 245; Chapman v. Cook, 10 R. I. 304; Prideaux v. Min- eral Point, 43 Wis. 513; s. c. 6 Cent. L. J. 428; Rice v. Montpelier, 19 Vt. 470. Where, however, the excava- tion consisted of an elevator well or shaft within the building of the plaintiff, which building stood flush with the sidewalk, the sill of the opening to which well was a stone eighteen inches wide which did not project beyond the wall of the build- ing, and was raised about three inches above the level of the side- walk and, while the elevator was in use, in unloading from a wagon standing in the street, the horse at- tached to the wagon backed it upon the sidewalk, causing travellers thereon to jostle and push one of their number through the opening, then unguarded, into the well, — it was held that the occupier of the building was not liable to him for his injuries. The court say: "We are not aware that it has ever been decided here, that excavations made by the owners of land outside the limits of a highway, but so near to 1102 it as to make it unsafe for travellers, constitute a public nuisance, for creating or maintaining which the land-owner may be punished;" and the court assert that the responsi- bility for permitting such nuisances rests primarily upon the municipal corporation: Mclntire v. Roberts, 149 Mass. 450; s. c. 4 L. R. A. 519; 6 Rail. & Corp. L. J. 213; 22 N. E. Rep. 13. The general doctrine, as above seen, is the reverse. The abutting land-owner is the primary author of the nuisance, and if the city is compelled to pay damages in consequence of it, it has an action over against him for reimburse- ment. A property owner was held liable for this species of dangerous nuisance in a case where he main- tained an open cellar thereon in dangerous proximity to a public street, without closing it or guard- ing it so as to prevent passers-by from casually falling into it: Hut- son v. King, 95 Ga. 271; s. c. 22 S. E. Rep. 615. So, the proprietor of a theater was held liable to a foot passenger on the sidewalk who re- ceived an injury in consequence of a defective covering of a cellar win- dow or door close to the building line on the premises of such pro- prietor, upon which the person in- jured went for the purpose of avoid- ing an unusual crowd which was passing out of the theater: Stewart V. Jermon, 5 Pa. Super. Ct. 609; s. c. 41 W. N. G. (Pa.) 216. Land-owner not liable for a horse backing and running into a pond on his land, fifteen feet from the margin of the highway and tv/enty-seven feet from the travelled portion: Horstick v. Dunkle, 145 Pa. St. 220; s. c. 23 Atl. Rep. 378. Occupants of house not liable to a foreign woman, ignorant of the custom of delivering coal through holes in or near the side- walk, who, in the dark, stepped on a pile of coal which was being dumped, and was injured by falling into the coal-hole which was about two feet back from the street line, and in a space paved like the side- OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. § 1229. Employments on One's Own Premises Endangering Public Travel on the Highway. — Private persons may, in like manner, be- some liable for injuries to travellers on the highway through nui- sances erected on their own lands, from employments there carried on of such a nature as to endanger such travel, — as where a blacksmith working at his anvil in an open door within six feet of the sidewalk, with the horn of the anvil toward the door, throws hot scales into the street, whereby the eye of a traveller is put out.^'» Aeticle III. Obstructions and Dangers from Telegraph Poles AND Wires Erected in the Public Streets and Highways. Section Section 1233. General proposition In regard 1243. Wires obstructing navigation. to liability for negligence in 1244. Vessels injuring submarine the use of tbe streets. cables. 1234. License from the city no de- 1245. Liability for pulling down cor- fense. nices, bricks, etc., upon the 1235. Poles erected in part of the sidewalk. street prohibited to travel. 1246. Injuries from the falling of 1236. Injuries from improper loca- lamps, glass insulators, etc. tion or erection of poles. 1247. Other street accidents result- 1237. Collision in consequence of ing from the negligence of horse running away. these companies. 1238. Injuries from overhanging 1248. Proximate and remote cause wires. in this relation. 1239. Injuries from guy wires. 1249. Contributory negligence of the 1240. Injuries from falling of tele- traveller. graph and telephone wires, 1250. Further of the contributory poles, etc. negligence of the traveller. 1241. Injuries from poles blown 1251. Certain evidential matters. down by storms. 1252. What deemed a public street 1242. Right of contribution by mu- within the meaning of this nicipal corporation against chapter, electric-light company. § 1233. General Proposition in Regard to Liability for Negligence in the Use of the Streets. — If a telegraph, telephone, or electric light company so erects its poles or suspends its wires as to make the high- way dangerous to ordinary travel, and if a traveller, proceeding with ordinary care, comes in contact with its poles or wires, so erected or suspended, and thereby sustains injury, he, or any other person having a right of action for such injury, may recover the resulting damages of walk: Lorenzo v. Wirth, 170 Mass. flictlng, the question of negligence 596; s. c. 49 N. E. Rep. 1010; 40 L. was held a question for the jury: R. A. 347. Some courts would have Parish v. Williams, 88 Iowa 66; s. c. decided this case the other way. 20 L. R. A. 273; 55 N. W. Rep. 74. "" Here, the evidence being con- 1103 1 Thomp. Neg.J negligence in relation to the highway. the company. ^°'' The books contain different statements of tlie na- ture of the obligation of electrical companies with regard to main- taining their poles and wires in the streets so as not to endanger the travelling public. Wbat the courts say is not of so much .importance as what they actually Jiold. A Federal Court went so far as to say that electrical companies maintaining poles in the public streets of a city are bound to know the dangers that may naturally be caused by such use of the streets, and to guard against the same by the exercise of all the foresight and caution which can be reasonably expected of ordinary men under such circumstances.^ °^ But when we come to consider what the court held in the particular case, we find that it let down the doctrine to the statement that the duty of such a company maintaining poles in a public street does not extend to the maldng of such an examination of them as will be effectual to discover decay which may have taken place so as to render the poles unsafe.^^^ What the court probably meant to say was that, in such a case, the company is not an absolute insurer of the safety of its poles — does not warrant the public that they will not fall down by.means of internal rotting or hidden defect, and bring the suspended wires into contact with some innocent traveller, killing him, — and all this for the profit of the elec- trical company. The law ought to be exactly the reverse. If they can discover defects in their poles by any kind of examination, then they ought to be required, considering the extreme danger to the pub- lic, to make that examination. Another court has reasoned that an electric light company using the streets and alleys of a city with poles and overhead wires in lighting the same, owes the duty of employing a sufiicient number of men and using the best devices known, to prevent injury to the inhabitants by the breaking of its wires, — especially im- mediately after a storm which is likely to produce such breakage.'-'^ Another court has reasoned that the care exercised to prevent the escape of a dangerous current of electricity from wires suspended over streets in populous cities or towns must be commensurate with the great danger that exists, although the owners of such wires are not insurers against the accidents.^'* But they ought to be held to the ""Pennsylvania Teleph. Co. v. 226; s. c. 60 U. S. App. 104; 31 C. C. Varnau (Pa.), 15 Atl. Rep. 624; s. c. A. 499; 2 Denver Leg. Adv. 153. 5 Lane. L. Rev. 401 ; Wolfe v. Erie "^ Denver v. Sherret, 88 Fed. Rep. Tel. &c. Co., 33 Fed. Rep. 320; West- 226; s. c. 60 U. S. App. 104; 31 C. C. ern Union Tel. Co. v. Eyser, 2 Colo. A. 499; 2 Denver Leg. Adv. 153. 141 ; Thomas v. Western Union Tel. "^ Leavenworth. Coal Co. v. Ratch- Co. 100 Mass. 156; Wilson v. Great ford, 5 Kan. App. 150; s. c. 48 Pac. Southern Tel. Co., 41 La. An. 1041; Rep. 927. s. c. 6 South. Rep. 781; Dickey v. "* City Electric Street R. Co. v. Maine Tel. Co., 46 Me. 483. Conery, 61 Ark. 381; s. c. 31 L. R. ^"'Denver v. Sherret, 88 Fed. Rep. A. 570; 3 Am. & Eng. R. Cas. (N. S.) 365; 33 S. W. Rep. 426. 1104 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. liability of insurers; and the principles of the common law, as ex- pounded in the case of Rylands v. Fletcher, already considered/'" make them insurers; and nothing less than this rule will secure the safety of the public and satisfy the demands of justice. Still another court has brought the liability of such a company almost to that of an insurer, by holding that a grant of the privilege to encumber the public highway with poles and electric wires which, though insulated, carry a deadly current, imposes upon those having such privilege the duty of so managing them as not to injure persons lawfully on the streets, and of making the streets substantially as safe for them as it was before; but that their liability rests on the ground of negligence in failing to use a degree of care proportioned to the great danger to others from the use of such an agency.^'* § 1234. License from the City No Defense.^ — We have already seen that municipal corporations hold their streets as a trust for the benefit of the public ; that they are under a legal obligation to keep them in repair; and that they are indictable at common law, and liable to an action for damages, for negligently failing so to do. As they are thus under an affirmative duty toward the public of using care to keep their streets safe for the ordinary purposes of travel, it follows that they can not license a nuisance in them, and that the author of such a nui- sance can not justify under such a license. Accordingly, in an ac- tion for damages for injuries occasioned by the collision of plaintiff's buggy with a telephone pole erected by the defendant so as danger- ously to obstruct the street, the license of the city is no defense.^"'' § 1235. Poles Erected in Part of the Street Prohibited to Travel. — Tlie Supreme Court of Louisiana have held that the erection of wires by a telephone and telegraph company along neutral ground in a street, in such a manner as to endanger the occupants of vehicles, is negligence, although a city ordinance prohibits the use of such ground for vehicles.^** But this decision seems to be unsound. The daing of an act which is forbidden by a valid statute or municipal ordinance '^'^ Ante, § 695. posed by a statute for injuries ""Western Union Teleg. Co. v. caused by its negligence in erecting Nelson, 82 Md. 293; s. c. 31 L. R. A. and maintaining poles, although 572; 33 Atl. Rep. 763. An elaborate they are erected in compliance with note on the subject of liability for a city ordinance and with the char- injuries by electricity in highways ter of the company, — see Cleveland will be found in 31 L. R. A. 566. v. Bangor Street R. Co., 86 Me. 232; a This section is cited in § 1236. s. c. 29 Atl. Rep. 1005. "' Wolfe V. Erie Teleph. &c. Co., "' Wilson v. Great Southern Tel. 33 Fed. Rep. 320. That an elec- &c. Co.. 41 La. An. 1041; s. c. 6 trical street railway company is South. Rep. 781. not relieved from the liability im- VOL. 1 THOJIP. NEG. — 70 ii-UO 1 Thomp. Neg.] negligence, in kelation to the highway. is negligence per se;^°° a traveller is, therefore, in such a case, guilty of negligence as matter of law. It is not perceived upon what ground he can properly make his own negligence, or possibly his own willful fault in driving where the law prohibits him from driving, the ground of an action for damages. § 1236. Injuries from Improper location or Erection of Poles. — A telegraph or telephone company must exercise reasonable care in the location of its poles, so as not to incommode public travel, but need not so locate them as to provide against all possible injuries under ex- traordinary circumstances.^"" Thus, a telegraph company erecting its poles in a public street is not absolutely bound to make its lines safe to the public or to have its poles so strong and secure that they can not be blown down by any storm. It does not insure the safety of travellers in the streets from its posts lawfully placed there ; but it is bound to use reasonable care in the construction and maintenance of its line, so that no traveller shall be injured by it, and the amount of such care must be proportionate to the amount of danger and to the liability to accident. The poles must be strong enough to withstand such violent storms as may be reasonably expected, but they are not required to be so strong that no storm can break them, or to withstand such storms as reasonable foresight and prudence could not antici- pate.^"^ ISTor can such a company justify, under a license from the city, the location of a pole in such a place in the street, as makes it dangerous to public travel; since, as already explained, the city, by granting such a license, makes itself a wrong-doer ;^"^ and upon the question whether the pole was in fact so located as to be dangerous to public travel, the license from the city will not be conclusive, but the question will be submitted to a jury, provided there is evidence from which the jury could properly draw the inference that it was so lo- cated.^ "^ It has been held that a telephone company is not liable for personal injuries resulting from a collision of a traveller with a tele^ phone pole, in consequence of his horse becoming frightened and un- manageable, where the pole which was set within the limits of the highway, could not have been placed nearer the fence without the cross-arms encroaching upon private property, and was set with due care and in such a position as not to obstruct or incommode the public '^Ante, § 10; Wooster v. Propri- =™ Sheffield v. Central Union Tel. etors, 16 Pick. (Mass.) 541; Heard v. Co., 36 Fed. Rep. 164. Hall, i6. 457; Karle v. Kansas City ^'"Ward v. Atlantic &c. Tel. Co., &c. R. Co., 55 Mo. 476; Correll v. 71 N. Y. 81; s. c. 27 Am. Rep. 10. Burlington &o. R. Co., 38 Iowa 120; ""'Ante, § 1234. s. c. 18 Am. Rep. 22; Jetter v. New ''"^ Wolfe v. Erie Teleph. &c. Co., York &c. R. Co., 2 Keyes (N. Y.) 33 Fed. Rep. 320. 154. 1106 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. use of the highway.^"* In this case the complaint alleged that the plaintiff, with a companion, was driving along a highway which had ■ three travelled tracks ; that the team was travelling on the north track, which was eight feet from the fence ; that, between this track and the fence, and about four or six feet from the fence, were defendant's telephone poles, about eleven rods apart ; that the highway was almost perfectly level ; that, while plaintiil was attempting to alight from the buggy, the horses became frightened by an approaching team, ran into a telephone pole, threw him out, and caused the injury complained of. It was held, on demurrer, that the complaint did not state a cause of action.^"^ But if a city establishes a valid regulation prescribing the diameter, etc., of such poles, which may be erected in the public streets, and a pole so erected is not of that diameter, and is otherwise defective, in consequence of which it falls, injuring a traveller, the company must pay damages; for the erection of such a pole is deemed a nui- sance or negligence per se.^"® § 1237. Collision in Consequence of Horse Eunning Away. — It has been held that if a telephone pole is placed in the roadway of a public street, or so near thereto as to be dangerous to ordinary travel, a traveller who comes into collision with such obstruct- ■ " conse- quence of his horse taking fright and running away, -aed he uses reasonable efforts, under the circumstances, to manage and subdue the horse, and does not leave the box before the collision occurs, — can re- cover damages for the injury.^"'' But this decision seems to be un- sound in principle and opposed to good authority. In such a case the sound conclusion seems to be that it is the running away of the horse, and not the location of the pole, that is the proximate cause of the damage. ^"^ § 1238. Injuries from Overhanging Wires. — The fact that a tele- graph line crossing a highway is allowed to swing down so low as to obstruct ordinary travel, is some evidence of negligence on the part of the telegraph company, and, in the absence of anything to explain it, will warrant a verdict against it for damages for injuries sustained by one, who, using due care, is thrown from hie vehicle by means of =" Roberts v. Wisconsin Teleph. ™« Davis v. Dudley, 4 Allen Co., 77 Wis. 589; s. c. 20 Am. St. Rep. (Mass.) 557; Moulton v. Sanford, 51 143; 46 N. W. Rep. 800. Me. 127. As to injuries which are ^'Roberts v. Wisconsin Teleph. the comHned result of negligence Co., supra. t^™^ accident, and especially in the =°'» Williams v. Louisiana &c. Co., case of injuries upon highways, see 43 La. An. 295; s. c. 8 South. Rep. ante, § 68; and especially § 91, et 938. seg. =<" Wolfe V. Erie Teleph. &c. Co., 33 Fed. Rep. 320. 1107 1 Tliomp. Neg.J negligence in relation to the highway. the wire.^"" Perhaps it is but another way of stating the same prin- ciple to say that, in an action for the death of one thrown from his carriage by a telephone wire stretched across the -road, if the injuries are the natural consequence of the negligence of the defendant, or that of its servants, such a consequence as might have been foreseen by the servant as likely to flow from his carelessness, there being no contribu- tory negligence, the defendant is liable.^^" It is not necessary, in order to establish the negligence of the defendant in such a case, to prove that the defendant had been notified that its wire obstructed the highway, and that it refused or neglected to remove it.^^^ The reason is that a party who, for his own gain, occupies the public street with something which, unless properly cared for, may become dangerous to public travel, is under an afSrmative duty of care and inspection, and can not justify waiting until the city authorities, or some one else, notifies him that it has become dangerous.^^^ It is the obvious duty of any person or corporation, obstructing a public street for private gain, to keep the obstruction guarded, lighted, or otherwise to keep the public notified of it.^^^ In line with this principle, it has been justly held that if a telegraph company, engaged in constructing its line through ? '. '" i^lic and frequented street of a city, allows its wire to remain su&j^'_ "■ across the street, in a manner which obstructs travel, without guards, uags, or other notice to the public of the obstruction, it is guilty of gross negligence.^^* Where a wire of a telephone com- pany fell, by reason of the company's negligence, upon the trolley wire of an electric railway company, over which there was no guard-wire, both companies were held liable for the value of a horse killed by com- ing in contact with the fallen telephone wire.^^^ If a telegraph, tele- phone, or other company using electric wires, suffer its wire to hang so low as to interfere with a vehicle and cause damage, it is liable therefor, although the obstruction was not over the beaten path.^^* The fact that such a wire is found swinging across a public way, at such a height as to endanger travel, is itself, unexplained and unac- counted for, sufficient evidence of negligence to take a case to a jury.^^'^ But for the servants of such a company, in putting up a 200 Thomas v. Western Union Tel. ^' Manley v. St. Helens Canal Co., Co., 100 Mass. 156; Dickey v. Maine 2 Hurl. & N. 840. And see Wiggins Tel. Co., 46 Me. 483. As to the lia- v. Boddington, 3 Car. & P. 544. bility of hoth companies in a like =" Western Union Tel. Co v. case, see ante, § 805. Eyser, 2 Colo. 141. ^"Pennsylvania Teleph. Co. v. ='= Electric R. Co. v. Shelton, 89 Varnau (Pa.); s. c. 15 AtL Rep. Tenn. 423; s. c. 24 Am. St. Rep. 614; 624. 14 S. W. Rep. 863. ^» Western Union Tel. Co. v. Eng- ™ Dickey v. Maine Tel. Co., 46 Me. ler, 75 Fed. Rep. 102; s. c. 21 C. C. 483. A. 246; 44 U. S. App. 517; Pennsyl- '"Thomas v. Western Union Tel. vania Teleph. Co. v. Varnau, supra. Co., 100 Mass. 156. ^ See ante, § 1190, et seq. 1108 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. telegraph wire, to suspend it so low across a public street, is not, in the absence of evidence of willfulness, negligence of so aggravated a char- acter that, for an injury thereby inflicted, exemplary damages may be given.^^^ The fact that a few minutes before an injury to a bicycle rider from an overhanging telephone wire, the end of it had been attached to a tree by a small boy, did not relieve the municipality and the telephone company from liability for the injuries, where the wire was in a sufficiently dangerous position to have caused the injury with- out the intervention of the boy.^^* § 1239. Injuries from Guy Wires. — Although the company may have the right to occupy the street with its poles, yet if it secures them by guy wires so as to endanger public travel, it must, under the principles and within the limits heretofore stated, pay any resulting damages.^^" If it so places one of its guy wires over the track of a steam railway company, as not to afford sufficient space for the trains of the steam railway company easily and conveniently to pass without danger to its employes, in consequence of which an accident to one of them happens, the electrical company will have to pay damages.^ -^ If it negligently attaches a guy wire but four or five feet from the ground to a post on the side of a street, and a horseback rider comes into collision with the wire without his fault, it will have to pay dam- ages, although the shying of the horse may have contributed to the injury.^^^ § 1240. Injuries from the Falling of Telegraph and Telephone Wires, Poles, etc. — According to one view, negligence in a telephone company will not be presumed from the mere fact of an accident by which a man driving under a telephone wire on the highway is in- jured ;^-^ while according to another, the falling of a telephone wire, in a public street, causing a horse suddenly to start and throw its owner out of the wagon, is prima facie evidence of negligence against the company, casting on it the burden of showing that it was unavoid- able by the exercise of reasonable care.^^* If such wires become "'Western Union Tel. Co. v. Co., 49 La. An. 86; s. c. 21 South. Eyser, 91 U. S. 495, note (reversing Rep. 153. s. c. 2 Colo. 141). ^^Lundeen v. Livington Electric ^"District of Columbia v. Demp- Light Co., 17 Mont. 32; s. c. 41 Pac. sey, 13 App. D. C. 533; s. c. 31 Chic. Rep. 995. Leg. News 217; 27 Wash. L. Rep. 87. ==" Pennsylvania Teleph. Co. v. "'° Wilson V. Great Southern Tel. Varnau (Pa.), 5 Lane. L. Rev. 401; &c. Co., 41 La. An. 1041; s. c. 6 s. c. afE'd 15 Atl. Rep. 624. South. Rep. 781. "' Arkansas Teleph. Co. v. Rat- "' Enslew v. New Orleans &c. R. teree, 57 Ark. 429 ; s. c. 21 S. W. Rep. 1059. 1109 1 Thomp. Neg.] negligence in relation to the highway, loaded with ice, in consequence of water being thrown upon them by the fire department in putting out a fire, so that they fall upon the street, it is the duty of the company whose wires they are, to remove them within a reasonable time after notice of their fall, or after a knowledge of it would be acquired by them through the use of reason- able diligence, or after a reasonable inspection or supervision; failing in which they are liable for an injury by them to one using the street.^^= § 1241. Injuries from Poles Blown Down by Storms. — If such a company does not secure its posts so that such winds as are liable to occur in the particular climate will not be likely to blow them down, it may become liable to one who sustains injury from such a catas- trophe. Judicial opinion thus, to some extent, places the colnpany betwixt the devil and the deep sea; but their lot is somewhat miti- gated by the recollection that they are not liable for damages sustained by failing to erect their poles with such strength as to withstand those great storms which, though liable to happen in any American climate, are placed by the judges in the category of "acts of God;" which is another way of saying that they are only bound to reasonable care in the construction and maintenance of their lines.^^° § 1242. Right of Contribution by Municipal Corporation Against Electric-Light Company. — If a private person digs a hole or puts an obstruction in the street of a city whereby a traveller is injured, he may have an action for his damages, either against the author of the nuisance or against the city for permitting it to continue. The one is liable for his misfeasance; the other for its nonfeasance in not dis- charging its public duty of keeping its streets in repair and free from nuisances dangerous to public travel. In these cases the author of the nuisance and the city are not in pari delicto — in equal fault — un- less the city has authorized the author of the nuisance to commit it; the one is an affirmative tort-feasor ; the fault of the other is negative and inadvertent. In such eases the city, if compelled to pay dam- ages in an action by the person injured, may have an action for con- tribution against the author of the nuisance. ^^^ Not so where the city itself has authorized the nuisance; for then they are in pari de- licto. When, therefore, a pole was erected by an electric-light com- pany in such a situation as to be a nuisance, but in a location approved ™ Nichols V. Minneapolis, 33 Minn. '" This subject is fully discussed 430; s. c. 53 Am. Rep. 56. in a subsequent volume, when treat- ^Ward V. Atlantic &c. Tel. Co., ing of the Liability of Municipal 71 N. Y. 81. Corporations for Negligence. 1110 OBSTRUCTING AND ENDANGEKING TRAVEL. [2d Ed. by the village authorities, it was held, in an action against the village and the successor of the electric-light company, that the two were in pari delicto, and that the village was not entitled to contribution against its co-tort-feasor.^^^^ § 1243. Wires Obstructing Navigation. — Under Act of Congress July 24, 1866, authorizing telegraph companies to construct tele- graph lines over, under, or across navigable streams, in such manner as not to obstruct navigation, a telegraph company whose submarine cables are laid in the soft mud or silt at the bottom of a navigable river, so as to interfere with the movements of vessels which are ac- customed to plow through the mud in such localities, thereby ob- structs navigation.^^* § 1244. Vessels Injuring Submarine Cables. — The owners of vessels which negligently injure submarine cables, although beyond the ma- rine league, will be adjudged to pay damages therefor by the proper English tribunal. In one such ease the plaintifEs were the owners of a telegraphic cable lying at the bottom of the sea between England and France. The defendants were aliens^ and their ships, while sailing upon the high seas more than three miles from England's coast, low- ered an anchor, and injured the cable. It was held that the court would presume that the masters of ships were aware of the existence and situation of submarine cables, and that a duty was thereby cast upon all such masters of ships to manage their vessels so carefully and skillfully as to avoid injuring these cables, if possible, in the ex- ercise of reasonable precaution.^^' In another such case a ship's anchor got entangled with an electric cable, and the cable was cut by order of the master. It was held that under the circumstances, the master was guilty of a want of nautical skill, and that the admiralty court had jurisdiction to entertain a suit against the ship; and the ship was condemned to pay damages and costs.^'" § 1245. Liability for Pulling Down Cornices, Bricks, etc., upon the Sidewalk.^ — If an electric-light company attaches its wires to a cor- nice, whether prohibited by an ordinance of the city from doing so or not, and the danger to persons on the street beneath is apparent, ^award V. Atlantic &c. Tel. Co., "^'The Clara KlUam, 39 L. J. 71 N. Y. 81. (Adm.) 50; s. c. L. R. 3 Adm. 161; 2^»Tlie City of Richmond, 43 Fed. s. c. 19 W. R. 25; s. c. 23 L. T. (N. Rep. 85. S.) 27. British statute punishing ^ Submarine Tel. Co. v. Dickson, malicious injuries to telegraph bat- 15 C. B. (N. S.) 759; s. c. 10 Jur. teries, machinery, wires, cables, (N S.) 211; s. c. 33 L. J. (C. P.) posts, etc.: 24 and 25 Vict, ch. 97, 139; s. c. 12 W. R. 384; s. c. 10 L. T. §§ 37, 38. (N. S.) 32. a This section is cited in § 1222. nil 1 Thomp. Neg.j negligence in kelation to the highway. and the cornice is thereby pulled down injuring such a person, the company will be liable.^^^ But it has been held that, where a tele- phone company fastens a wire to a pier on the top of a building over a street, in such a manner as to cause the bricks therein to be loosened by the natural action of the wind and rain, this will not render the company liable for an injury to a person on the street below, caused by the fall of one of the bricks loosened by persons on the roof of the building in attempting to extinguish a fire, unless the company failed to use proper care, skill, and diligence in fastening the wire.^^^ § 1246. Injuries from the Falling of Lamps, Glass Insulators, etc. — It is the duty of an electric-light company, in suspending a lamp from the middle of a ptreet, to provide a strong, sound, and suffi- cient rope, and sound and sufScient wires, pulleys, and other apparatus necessary to prevent it from falling upon travellers; but its liability depends upon its negligence in failing to discharge this duty, and is not that of an insurer. ^^^ § 1247. Other Street Accidents Resulting from the Negligence of these Companies. — An electric railway company is prima facie negli- gent where it suddenly raises to quite a distance a cable left lying in the bed of a gutter on a public street for a distance of thirty feet or more, with such force as to throw an eight-year-old boy, lawfully on the street, twenty feet or more into the air.^''* '" Swanson v. Menominee Electric crossarm from wWch the insulator LigM &c. Co., 113 Mich. 603; s. c. 4 fell was leased or loaned for use to Det. L. N. 405; 71 N. W. Rep. 1098. another company, did not render the Compare ante, §§ 1208, 1213, 1214, owner company any the less liable et seq.; post, § 1256. As to falling for such an accident: Quill v. Em- walls, ante, § 1055, et seq. pire State Teleph. &c. Co., 92 Hun '''^Southwestern Teleg. &c. Co. v. (N. Y.) 539; aff'g s. c. 13 Misc. (N. Beatty, 63 Ark. 65; s. c. 37 S. W. Y.) 435; 34 N. Y. Supp. 470. But Rep. 570. the Court of Appeals of that State ^'' Excelsior Electric Co. v. Sweet, reversed this decision, and held that 48 Am. & Eng. Corp. Cas. 196; s. c. the owner of the poles which had 30 Atl. Rep. 553. It was held by an given the use of one of the cross- intermediate appellate court in New arms to another company, was not York that the possibility of danger responsible for the negligence of to persons on a public street from the latter company in omitting to the fall of a glass insulator, by rea- catch an insulator, not furnished by son of the failure properly to adjust the former, on the thread of the pin, it upon the crossarms of a telegraph in consequence of which it flew off pole, is not so remote as to relieve the pin and struck a passer-by, when the telephone company from liabil- a wire was drawn against it by a ity for an injury to a person upon person for whose acts neither com- the street, so inflicted: Quill v. Em- pany was responsible: Quill v. Em- pire State Teleph. Co., 13 Misc. (N. pire State Teleph. & Teleg. Co., 159 Y.) 435; s. c. 34 N. Y. Supp. 470; N. Y. 1; s. c. 53 N. E. Rep. 679; 6 s. c. aff'd 92 Hun (N. Y.) 539. It Am. Neg. Rep. 174; rev'g 92 Hun was also held, in the same case, 539; 37 N. Y. Supp. 1149. that the fact that the particular ^'Devine v. Brooklyn Heights R. 1112 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. § 1248. Proximate and Remote Cause in this Relation. — But al- though such a company may set its poles or suspend its wires in such a location, or in such a manner, as to become liable to an indictment for a public nuisance, it would not follow that it would be an insurer of private persons against remote consequences of such negligence. The rule causa proxima, non remota spectatur, applies here, as in other actions for damages. It has accordingly been held, in a case where the plaintiff was injured through the falling of defendant's pole, which was broken by the collision of a runaway team of horses, that, as the pole stood at such a distance from the travelled portion of the highway as to be safe from collisions with teams under ordinary circumstances, there could be no recovery, although the pole was not strong enough to withstand such a collision; the accident of the run- ning away of the horses, and not the weakness of the pole, was deemed the proximate cause of the damage.^^^ § 1249. Contributory Negligence of the Traveller. — The rule stated in the preceding section, operates to exonerate the company where the proximate cause of the accident was the negligence of the traveller, and not that of the company in the erection of its poles or wires. The well-known general rule here is — subject to some exceptions in some American jurisdictions, — that if the negligence of the traveller proximately contributes to the injury, he can not recover; since the common law is so deficient that it has no scales by which it can sepa- rate and weigh the relative fault of the parties and say how much of the damage was due to the fault of each.^^^ The rule, in its appli- cation to injuries sustained by travellers through coming in contact with obstructions in the highway is — stated in a leading case in its simplest form, — that the traveller can not recover damages if he could have avoided the accident by the exercise of reasonable care on his part.^'^ One who recklessly thrusts himself upon a known danger is guilty of contributory negligence which will prevent him from re- covering damages from the author of the obstruction.^^* So, one who recklessly runs into an electric-light wire which has been broken down in a storm, and is injured thereby, is guilty of negligence which will bar a recovery of damages from the company whose light it is;^'"' though this rule has been qualified by some courts so as to restrain it Co., 1 App. Div. (N. y.) 237; s. c. 37 60; s. c. 2 Thomp. Neg., 1st ed., N. Y. Supp. 170; 72 N. Y. St. Rep. 1104. 629. ^"^ Butterfleld v. Forrester, supra. === Allen v. Atlantic &c. Tel. Co., 21 ^' Cook v. Wilmington City Blec- Hun (N. Y.) 22. trie Co., 9 Houst. (Del.) 306; s. c. '^Ante, § 216, et seq. 32 Atl. Rep. 535. "«' Butterfield v. Forrester, 11 East 1113 1 Thomp. Neg.] negligence in relation to the highway. to cases where the person injured is suiSciently acquainted with the subject of electrical uses to know and to appreciate the danger.^*" So, one who deliberately drives his horse into a place of danger near an electric railroad track, with a full knowledge of the situation and danger, for the express purpose of testing the horse as to his disposi- tion to become frightened, is guilty of such contributory negligence as will prevent a recovery, where the horse becomes frightened at a train and runs away.^*^ The true inquiry here is whether, under all the circumstances of the case, the plaintiff, or other person injured, exercised ordinary or reasonable care, — the two expressions being, in a legal sense, synonymous.^*^ § 1250. Further of the Contributory Negligence of the Traveller. — It has been held that the failure of the traveller to notice in the day- time an electric-light wire on the sidewalk, over which he stumbled and fell, is not contributory negligence as a matter of law, and will not prevent him from recovering for the injuries from the company. The court, speaking through Mr. Justice Berkshire, say: "A small wire lying along a sidewalk might very reasonably be overlooked by a passer-by who has no notice thereof, and the fact that it is overlooked does not necessarily indicate negligence. "We can not hold, as a ques- tion of law, that a person may not pass along a sidewalk cautiously and fail to observe a small wire lying along or across it ; and then we can imagine many circumstances whereby the attention of the pedes- trian might be attracted from the sidewalk, which would be sufficient to divert the attention of any reasonably prudent person."^ *^ While ™Awie, § 808. the territorial court of Colorado, ^" Cornell v. Detroit &c. R. Co., that the plaintiff's right to recover 82 Mich 495 ; s. c. 46 N. W. Rep. 791. is not affected by his having con- 2« Where the court charged the triiuted, to his injury, unless he was jury that if the position of the per- in fault in so doing (Western Union son killed, by coming into collision Tel. Co. v. Byser, 2 Colo. 141); since with the wires of the defendant, was contributory negligence is in itself dangerous, owing to defendant's a fault. For a charge to the jury on negligence alone, and he exercised the subject of the right of recovery the care of a prudent man, that was for an injury sustained through the all that was required; that where improper location of telephone poles one in such position, not having in the public street, with especial time to judge the best way of doing, reference to the contributory negli- selects a method not the best, the gence of the driver of the vehicle, ' law would not impute negligence as see ShefBeld v. Central Union Tel. readily as if he had time to choose; Co., 36 Fed. Rep. 164. that another might have done dif- ^' Brush Electric Lighting Co. v. ferently, but the only question was Kelley, 126 Ind. 220; s. c. 9 Rail, what did care and prudence require, Corp. L. J. 135; 25 N. E. Rep. 812. and did he do it, — it was held that The court cite: Barry v. Terkild- the instruction was correct: Penn- sen, 72 Cal. 254; s. c. 1 Am. St. Rep. sylvania Teleph. Co. v. Varnau 55; Hussey v. Ryan, 64 MA. 426; 54 (Pa.), 15 Atl. Rep. 624. One can Am. Rep. 772; Jennings v. Van hardly understand the conception of Schaick, 108 N. Y. 530; 2 Am. St. 1114 OBSTRUCTING AND ENDANGERING TRAVEi. [2d Ed. it is the duty of a traveller driving on the highway, whose umbrella on his wagon is caught in a telephone wire, to stop and loosen it as soon as he discovers it is caught, — ^yet, in an action to recover dam- ages for his death, the presumption is, in the absence of any proof, where he was thrown off and killed by it, that he did his duty in this respect, as far as he was able.^** Nor will the fact that other men with wagons as high as that of the person injured by coming in con- tact with a telephone wire, passed under it without injury, raise a presumption of negligence on his part."^ Disregarding the exploded doctrine of imputed negligence/^'^ it has been held in an action where a married woman was injured by the fact that the buggy in which she was riding and in which her husband was driving, came in contact with one of the defendant's telegraph poles planted in the street, that if the injury was occasioned solely by the driver's negligence, the de- fendant was not liable; but that, if the driver's negligence only con- tributed to the injury, his negligence could not be imputed to the plaintiff, so as to defeat her action, where defendant's negligence also directly contributed to it.^*^ § 1251. Certain Evidential Matters. — It has been held that, in an action for damages sustained by being thrown down by a telepho'ne wire, it is competent to show that the defendant, shortly after the acci- dent, changed its line at the spot, making it higher.^* ^ It has also been held competent in such a case to give evidence as to the height of the wire on the Sunday before the accident.^*" On the other hand, the fact that others, with loaded wagons equally high, passed under the wire without injury, did not, in the opinion of the court, raise a pre- sumption of negligence on the part of deceased.^^" On the trial of an action against the telegraph' company, for negligence in permitting telegraph poles to fall and depress the wires across a highway, where a question is raised as to the soundness of the poles, it is error to admit evidence of the condition of other poles, forty or sixty rods away, without any evidence to show that they were of the same kind, put up at the same time and equally exposed."^ Eep. 459; Kelly v. Blackstone, 147 '*" Ante, § 504. Mass. 448 ; s. c. 9 Am. St. 'Rep. 730 ; '" Sheffield v. Central Union Tel. Noblesville Gas &c. Co. v. Loehr, 124 Co., 36 Fed. Rep. 164. Ind. 79. The concluslou of the court '*' Pennsylvania Teleph. Co. v. is also supported by Woods v. Bos- Varnau (Pa.), 15 Atl. Rep. 624t s. c. ton, 121 Mass. 337. 5 Lane. L. Rev. 401. =" Pennsylvania Teleph. Co. v. ^"Pennsylvania Teleph. Co. v. Varnau (Pa.), 5 Lane. L. Rev. 401; Varnau, supra. s. c. 15 Atl. Rep. 624 (no off. rep.). "'"Pennsylvania Teleph. Co. v. =« Pennsylvania Teleph. Co. v. Varnau, supra. Varnau (Pa.), 5 Lane. L. Rev. 401; ""'Western Union Tel. Co. v. Levi, s. c. 15 Atl. Rep. 624 (no off. rep.). 47 Ind. 552. 1115 1 Thomp. Neg.] negligence in kelation to the highway. § 1252. What Deemed a Public Street Within the Meaning of this Chapter. — An open thoroughfare, paved, curbed, flagged, and used by the general public as a street, will be treated as such in determining the question of the negligence of an electric railway company while hanging its cables, resulting in death, although the place where the accident happened has not been actually opened by legal proceed- ings. ^'^^ Article IV. Other Obstructions and Dangers. Section Section 1255. Carelessly piling lumber in a 1261. Frightening horses hy the use public street. of steam whistles in manu- 1256. Injuries from the falling of facturing establishments. the tools of workmen, tim- 1262. Teams standing on the streets bers, etc. or sidewalks obstructing 1257. Leaving on or near the street passage. objects which frighten the 1263. Moving buildings in the pub- horses of travellers. lie streets. 1258. Instances where damages have 1264. Excavating in the street for been recovered for frighten- public work. ing horses. 1265. Tobogganing in the public 1259. Instances where there was no street. liability for frightening 1266. Obstructions of the streets by horses. gas companies. 1260. Further of objects frightening 1267. Street obstructions and dan- the horses of travellers. gers by water companies. 1268. Obstructions of highways by toll-gates. § 1255. Carelessly Piling Lumber in a Public Street. — One who uses a public street as a lumber yard, without special circumstances excusing such conduct, is the author of a public nuisance, and if damage results to persons in the lawful use of the street, without their fault, from the fact of lumber being so piled, he is, on principles else- where discussed in this chapter, liable without proof of negligence. But where there are special circumstances rendering it lawful so to pile lumber, as where it can only be so piled in the operations of building a house upon adjacent land, in which case, as we have seen,^^'' temporary obstructions of the street are permitted, — ^then the right to make such use of a street is granted by the law, but under an obliga- tion on the part of the person so using it, to exercise reasonable care to the end that what he does shall not work injury to others. He is, ^'^Devine v. Brooklyn Heights R. N. Y. St. Rep. 629; 37 N. Y. Supp. Co., 1 App. Div. (N. Y.) 237; s. c. 72 170. ^Awie, §.1222. 1116 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. under such circumstances, therefore, bound to exercise reasonable care in so piling his lumber that it will not topple over and fall upon chil- dren playing upon it ; and where, in a given case, it was so piled, and fell through the mere weight of a young child attempting to climb upon the pile, it was held that there was a question of negligence to go to the jury, in an action by the child for an injury thereby received.^^* Where, in such a case, the question is raised whether the person who assumes to so pile lumber in the public street should not use what are called "binders" to bind it together so as to prevent it from falling upon passers-by, evidence that it is the custom of other dealers in lum- ber in the same city to pile small quantities of lumber in the streets without the use of binders, has been held inadmissible.^^^ In such an action, it was held proper to admit in evidence an ordinance of the city which makes it unlawful to make such use of the public streets.^^® § 1256. Injuries from the Falling of the Tools of Workmen, Tim- bers, etc.^ — Persons engaged in building or repairing buildings above the sidewalk of a crowded street are not insurers/^'' but are required to exercise a degree of care, to avoid injuring travellers, in proportion to the danger to persons below attending the particular work.^°^ It is gross negligence for a painter to employ a swinging stage that has no rim or other ^uard to keep tools from being- shaken off upon per- sons below.^^" In such cases the fact that an object is permitted to fall on a passer-by is generally, of itself, held evidence of negligence : res ipsa loquitur. ^^'' A person who is constructing a brick wall abut- ting on a highway may be liable for negligence in not providing safe- guards, such as would have prevented a traveller from being injured by the falling of a brick, although his servants at work on the wall were not negligent in breaking and handling the brick.^^^ But the judge should submit the question of negligence to the jury upon the ^Earl V. Crouch, 57 Hun (N. Y.) Ugence, and not on the footing of 586; s. c. 32 N. Y. St. Rep. 13; 10 nuisance. N. Y. Supp. 882 ; s. c. on second ap- a This section is cited in § 1245. peal, 40 N. Y. St. Rep. 847; 16 N. Y. ^'Eccles v. Darragh, 46 N. Y. Supp. 770. Substantially to the Super. 186. same effect is Holly v. Bennett, 46 ^=» Compare, ante, §§ 1208, 1213, Minn. 386; s. c. 49 N. W. Rep. 189. 1214, et seq.; Clare v. National City ^Earl V. Crouch, 40 N. Y. St. Rep. Bank, 1 Sweeny (N. Y.) 539; s. c. 3 847; s. c. 16 N. Y. Supp. 770; 57 Hun Jones & Sp. 26; 8 Jones & Sp. (N. (N. Y.) 586; citing 42 Hun (N. Y.) Y.) 104. See Brackett v. Lubke, 4 77. Allen (Mass.) 138. ^o Holly V. Bennett, 46 Minn. 386; ^» Hunt v. Hoyt, 20 HI. 544. s. c. 49 N. W. Rep. 189. In this case, '°° Mullen v. St. John, 57 N. Y. although there was such an ordi- 567; Clare v. National City Bank, 1 nance, the court inadvertently dealt Sweeny (N. Y.) 539; Byrne v. Boa- with the case on the footing of neg- die, 2 Hurl. & Colt. 722. "^ Jager v. Adams, 123 Mass. 26. 1117 1 Thomp. Neg.] negligence in relation to the highway. whole case. He should not tell them that it is the duty of the owner of the premises upon which such work is going on, to erect a barricade, or place a person there to warn passers-by of the danger. This re- stricts the means of safety which may be taken to too narrow limits.^'^ It is not negligence to remove a barricade after all the outside work if a house is completed. Nor is it the duty of a contractor to guard against accidents which can not be reasonably foreseen, — as, to put up screens at the windows of a house to prevent the tools of the em- ployes of a subcontractor, who has engaged to do the plastering, from falling out of the windows. And where, under such circumstances, a passer-by was injured by a "straight-edge" of a plasterer, falling out of the window, the principal contractor was held not liable. ^°* Whether the proprietor or contractor erects iarricades, or takes some other means of notifying the public of the danger, he is bound to give notice of such a character as will put the party injured in fault. If it consist of a barricade, it must actually obstruct the passage. But the obligation of the proprietor or contractor, in this regard, is not of so high a nature that he must pay vindictive damages in consequence of an error of judgment in not giving sufficient notice.^"* § 1257. Leaving On or Near the Street Objects which Frighten the Horses of Travellers.^ — A person who negligently or unlawfully places or leaves in the highway an object which, from its appearance, is likely to frighten a horse of ordinary training and docility, is liable to a traveller for any damage which is the proximate result of his horse taking fright at such object. There is no juridical distinction be- tween an injury happening through the traveller's horse taking fright at the object, and an injury happening through his coming into direct collision with it. They are alike the subject of damages.^^^ § 1258. Instances where Damages have been Recovered for Frightening Horses.^ — ^Under the rule of the preceding section, dam- '^ Vanderpool v. Husson, 28 Barb, paved space inside the sidewalk, but (N. Y.) 196. where the public had a right to be: 2™ Pearson v. Cox, 26 C. P. Div. Woods v. Trinity Parish, 21 D. C. 369. 540; s. c. 21 Wash. L. Rep. 259. '"" Jackson v. Schmidt, 14 La. An. a This section is cited in § 1308. 806. Circumstances under which ^°= Clinton v. Howard, 42 Conn, an employe of an ice company, in- 294; Jones v. Housatonic R. Co., 107 jured while delivering ice to the de- Mass. 261; Judd v. Fargo, 107 Mass. fendant's building, in an alley, by 264; Klipper v. Coffey, 44 Md. 117; the breaking of an apparatus for Watkins v. Reddin, 2 Fost. & Fin. hoisting the ice, was held debarred 629; Hill v. New River Co., 9 Best & from recovering damages: Chapin S. 303; Flower v. Adam, 2 Taun. V. Walsh, 37 111. App. 526. Liabil- 314; Lake v. Millikin, 62 Me. 240; ity of the owner of a building for Harris v. Mobbs, 27 Week. Rep. 154; an injury to a young girl by the House v. Metcalf, 27 Conn. 631; Ben- f ailing of a window-shutter, while nett v. Lovell, 7 Reporter 442. she was standing on an uninclosed b This section is cited in § 1263. 1118 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. ages have been recovered where the defendant left on the highway a sick' and disabled cow, which was likely to die and become an object frightening the horses of travellers, and such a result followed ;^°* where the object frightening the horse of the plaintiff consisted of a pile of stones collected in the highway ;^®^ of a jet of water spouting up out of the ground in a public highway, about four feet high;^"^ of a traction steam-engine driven along the highway at the rate of six miles an hour, — "for," said Brie, C. J., "the defendant has clearly no right to make a profit at the expense of the security of the public ;"^°® and of some tubing and machinery which was being transported for the use of water-works.^^" It may also be stated that one- owning or occupying property adjacent to a highway is so far restrained in the use of it that he may not accumulate thereon, near the highway, with- out liability for resulting damages, objects which from their nature are likely to frighten horses while passing along the highway, without screening such objects from public view,- — as, for instance, a pile of buffalo-hides, in which the tenant of the land was a dealer.-'^ An English statute^''^ enacted that it should not be lawful to erect or cause to be erected any steam-engine within twenty-five yards of any car- riage-way, unless it should be within some house or othei* building, or behind some wall or fence sufficient to conceal or screen it from the carriage-way, so that it might not be dangerous to passengers, horses, or cattle. A portable steam-engine, upon wheels, and drawn by horse- power, used for the purpose of driving a threshing-machine, within a barn but not fixed to the wall, was held within this statute, since it was equally calculated to frighten animals as one permanently affixed to the freehold.^''' Damages have been awarded a traveller for injur- ies received in consequence of his horse taking fright at the defend- ant's dog, which ran after and barked at him, although the plaintiff was travelling on Sunday; nor was it material that the dog did not bite the horse.^^* It was so held where the defendant left standing, upon the highway over night, a building in process of removal, without '" Hindman v. Timme, 8 Ind. App. "' Ante, § 1228 ; Lobenstein v. Mc- 416 ; s. c. 35 N. B. Rep. 1046. And it Graw, 11 Kan. 645. Beating a drum was deemed immaterial whether the in the highway, whereby a team of defendant Icnew previous to the ac- horses takes fright, runs away, and cident that the cow had died: Hind- receives damage, is an injury so di- man v. Timme, supra. rect that trespass will lie for the ^"Clinton v. Howard, 42 Conn, damages: Louby v. Hafner, 1 294 Strobh. (S. C.) 185. =»« Hill V. New River Co., 9 Best & "^ 5 & 6 Wm. IV., c. 50, § 70. S. 303. "' Smith v. Stokes, 4 Best & S. ^""Watkins v. Reddin, 2 Fost. & 84; s. c. 32 L. J. (M. C.) 199; 11 Fin. 629. Week. Rep. 753; 8 L. T. (N. S.) 425. "' Bennett v. Lovell, 7 Reporter "* Schmid v. Humphrey, 12 West. 442. .Tur. 475 (Sup. Ct. Iowa, 1878). 1119 I Thomp. Neg.J negligence in relation to the highway, lighting or guarding it;^'° and where certain persons placed a boat at the end of a public street leading to a lake, for the purpose of launching it, but did not launch it with reasonable promptness, and the plaintiff's horse took fright thereat.^'' § 1259. Instances where there was No Liability for Frightening Horses. — On the other hand, a person so leaving an object on or near the street is not liable for damages occasioned by the horse of a trav- eller taking fright at it, unless the thing so left is so unusual or ex- traordinary as to have a natural tendency to frighten horses of ordi- nary gentleness and training^ or unless it is left on or near the road at an unreasonable time, or for an unreasonable length of time.^'''' For example, there is no rule of law that prevents a vendor of agri- cultural machinery from exhibiting new machines of an unusual char- acter in public places near the highway ; and if the horse of a traveller becomes frightened at such a machine, this of itself will not charge him with the damages. And it has been reasoned that the usual place of keeping machinery of a new and unusual character may be consid- ered by the jury, as bearing upon the question whether proper care was used in the particular case.^^* So, contractors for building a turn- pike, who in the exercise of due care leave a large steam-roller which they are required to use in the construction, in as favorable location as possible near one side of the road, so as to give travellers all the space reasonably convenient to pass by, are not liable for injuries caused by a horse becoming frightened at the roller and running ^" Rice v. "Whitby, 28 Ont. Rep. unless there was something of an 598. unusual or extraordinary character "° Cairncross v. Pewaukee, 86 Wis. in the structure and appearance of 181; s. c. 56 N. W. Rep. 684. this apparatus which would natu- "' See, as sustaining the text in rally tend to frighten horses of ordi- part, Piollet v. Simmers, 106 Pa. St. nary gentleness and training, it was 95; s. c. 51 Am. Rep. 496. In this not negligence to use it; and that case the owners of property through its reasonable use for no longer a which the highway ran, were en- time than was naturally required gaged in whitewashing their fences, on the highway in whitewashing the using a small barrel mounted on fence of the defendants would not wheels to- contain the whitewash, subject them to liability, even and moving it on from time to time though some horses might or did as the work progressed. They left take fright at seeing it: Piollett v. it standing covered over with a Simmers, 106 Pa. St. 95; g. c. 51 Am. white, cloth, and having a shovel Rep. 496. Prom this and other projecting a short distance above its cases, the conclusion is to be drawn top, all day Sunday on one side of that whether the object was calcu- the beaten highway track. The lated to frighten ordinarily gentle horse of a traveller took fright at horses is generally to be left to the it, inflicting personal injuries upon decision of a jury, under proper dim. In an action for damages thus and monitory instructions, caused, it was held that the jury -'"Huntoon v. Trumbull, 2 Mc >ught to have been instructed that, Crary (TJ. S.) 314. 1120 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. away.^^" It is scarcely necessary to observe that if the object was not left by the plaintiff on or near the highway, where it could frighten the horses of travellers, but was dragged to the highway iy trespassers, the defendant will not be liable for any resulting catastrophe.^*" § 1260. Further of Objects Frightening the Horses of Travellers. — In such cases, as in others where a liability is claimed in consequence of the defendant having impeded the free and safe use of the high- way,^*^ the question frequently resolves itself into the inquiry whether the leaving of the object in the highway was an unreasonable use of the highway. Thus, a person may be obliged to leave a wagon stand- ing for some time in a highway, loaded with such objects as would be likely to frighten an ordinarily gentle horse, and yet not be liable for damages occasioned by such a horse taking^ fright thereat. All that the law requires in such cases is that the obstruction should not con- tinue an unreasonable length of time. Upon the question, what is an unreasonable length of time, it is important to consider the frequency of travel on the highway in question, and evidence on this point should not be excluded.^ *^ Authority is found, in an English case, for stat- ing that the plaintiff must prove a hnowledge on the part of the de- fendant that the object in question was calculated to frighten horses ;^'^ and upon this question it was competent to show that the plaintiff's horses had been frightened by the object in question be- fore.^** So, if a horse takes fright at a pile of building materials allowed to be placed on the side of the highway, out of necessity, the obstructor will not be liable.^*^ § 1261. Frightening Horses by the Use of Steam Whistles in Manu- facturing Establishments. — The use of a steam whistle in a manufac- "» Keeley v. Shanley, 140 Pa. St. ened at the carcass and tipping over 213; s. c. 21 Atl. Rep. 305; 27 W. N. a vehicle: Davis v. Williams, 4 Ind. C. 363; 21 Pitts. L. J. (N. S.) 354; App. 487; s. c. 31 N. B. Rep. 204. 48 Phila. Leg. Int. 289. The mere ^ See, for illustrations of this, shoveling of soil out of a trench in O'Linda v. Lothrop, 21 Pick. (Mass.) a highway in which to lay a gas 292; The Commonwealth v. Pass- pipe, under authority from the city, more, 1 Serg. & R. (Pa.) 217; The is not negligence because horses People v. Cunningham, 1 Denio (N. driven along the highway are there- Y.) 524. hy caused to sTiy: Nilan v. Rich- "*'Judd v. Fargo, 107 Mass. 264. mond County Gaslight Co., 1 App. ='=' Watkins v. Reddin, supra. The Div. (N. Y.) 234; s. c. 72 N. Y. St. writer apprehends that this is not Rep. 626; 37 N. Y. Supp. 259. sound, but that the law will hold a ™ For example, the owner of a man bound to know what men of dog, who upon its death removes its ordinary experience should know, carcass to a safe place from which Ante, § 8. it is afterwards moved to the side ^"Watkins v. Reddin, 2 Fost. & of a public highway by mischievous Fin. 629. b02/s, of which fact he is notified, is '"= Mallory v. Griffey, 85 Pa. St. not liable for personal injuries 275. caused by a horse becoming fright- VOL. 1 THOMP. NEG. — 71 1121 1 Thomp. Neg.] negligence in kelation to the highway. turing establishment is not a nuisance per se, but it may be used so iis to become such.^^' It has been held that the sounding of the steam whistle of a factory fifteen feet from the platform on which a team is being unloaded is gross negligence which will render the factory owner liable, where the person in charge of the team is not first warned by the employes in charge of the whistle, although the whistle is in plain view from such platform and the owner of the team while acquainted with its operation fails to notify his driver thereof.^'^ If a horse, frightened by such a whistle, pulls at the rope by which he is hitched, and is thereby killed, the proprietor of the establishment using the whistle will not be liable to pay damages, in any event, if it appear that the accident was the combined result of the noise of the whistle and the vicious habit of the horse.^** § 1262. Teams Standing on the Streets or Sidewalks, Obstructing Passage.^ — Neither is it negligence per se for one to leave his horse standing in the street ; and if, while so standing, it is injured by the horse of another traveller running away, the owner may recover dam- ages, if there was negligence in the owner of the runaway;^*' though, as hereafter seen,^'" if teams crowd the streets at a particular place habitually, in order to receive goods, thereby making a continuous obstruction, those who invite them there will be indictable as the authors of a public nuisance. '^^'^ § 1263. Moving Buildings in the Public Streets. — The owner of a building in a town may use the highway in moving it bodily from one site to another, provided he selects suitable streets and uses proper '^ Knight V. Goodyear India Rub- ™' People v. Cunningham, 1 Denio ber Co., 38 Conn. 438; Parker v. (N. Y.) 524. Under the operation Union Woolen Co., 40 Conn. 399. of a city ordinance permitting the ^'' Miller v. Rochester Vulcanite owners or occupants of stores or Pay. Co., 66 Hun (N. Y.) 634; s. c. buildings on any street, in which 49 N. Y. St. Rep. 856; 21 N. Y. Supp. the rails of any railroad are laid so 651. close to the curbstone as to prevent 2«8 Parker v. Union Woollen Co., 40 the standing of carts or vehicles in Conn. 399. When not negligence in the street without interfering with a fireman in the employ of a coal- the street cars, if the occupant of a mining company to sound a whistle, store stands his horse and vehicle which is the customary signal to the partly on the sidewalk, acting with- engineer when absent, — the fireman in the limits of the ordinance, the not knowing that a team has been horse being gentle and attended by hitched near by, that the horses are its driver, and if a footman, falling easily frightened, and that the own- accidentally, is stepped upon by the er has taken no precaution to se- horse and injured, — its owner will cure them: Grogan v. Big Muddy not be liable, since he has been act- Coal &c. Co., 58 111. App. 154. ing within his legal rights, and has a This section is cited in § 1296. been guilty of no negligence: Mer- =^ Street v. Laumier, 34 Mo. 469. ritt v. Fitzibbons, 102 N. Y. 362. '^Post, § 1296. 1122 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. expedition, without being guilty of a nuisance in obstr acting the highway;^ "2 though if he leaves the building in the highway over night, and the horse of a traveller takes fright at it and runs away, he may be liable for the resulting damages.^** § 1264. Excavating in the Street for Public Work. — If a person or corporation, or a contractor of a person or a corporation, excavates in a public street for the purpose of constructing some public work, reasonable precautions must be taken for the security of the public, — as, by the erection of barriers, the placing of lights, or otherwise ; and if a person, without his fault, is injured through the neglect of such reasonable precautions, he may recover damages of such person, cor- poration, or contractor.^®* But it has been held that a contractor who has undertaken to construct for a municipal corporation a sewer in a street, with the care of which street such municipal corporation is charged by law, is not responsible to it for damages which it has been compelled to pay in consequence of his leaving the sewer exposed dur- ing its construction, by reason of which a traveller fell into it and was injured, unless the contract provided that he should, by lights, bar- riers, or other precautionary measures, protect the public. The duty to provide such means of safety lay with the municipal corporation, and not with the contractor.^"^ Where a contractor, in building a trench for water pipes in a city, left a brace designed to support the trench, but really forming part of the street, and apparently for a crossing, it was held that he was bound to make it reasonably safe for a crossing.^"" It has been held that a water company which, in dig- ging a trench in a public street and laying water pipes, so negligently filled the trench that it was suddenly washed out by rains, is liable for an injury to a person passing along the street, resulting from its neglect, notwithstanding a previous acceptance of the work by the city authorities;^'' though there is authority for the opposing propo- .sition, that the acceptance of the work by the proper city official, re- lieves the contractor from liability for damages resulting from the ^'^The People v. Cunningliam, 1 s. c. 3 D. C. App. 127. As to exca- Denio (N. Y.) 524. vations for building purposes, see '^Ante, § 1258. ante, § 17. =" Bliss V. Schaub, 48 Barb. (N. «" Buffalo v. Holloway, 7 N. Y. Y.) 343; Blake v. Ferris, 5 N. Y. 48; 493. To the same effect: Pack v. Buffalo V. Holloway, 7 N. Y. 493; New York, 8 N. Y. 222; Kelly v. New Zehnder v. Miller, 6 Phila. Rep. 556; York, 11 N. Y. 432. Dillon V. Washington Gas-Light Co., '»° Finegan v. Moore, 46 N. J. L. 1 McArthur (D. C.) 626; Vieths v. 602. Skinner, 47 111. App. 325. See also ""' Southern Exp. Co. v. Texarkana Washington Gaslight Co. v. Poore Water Co., 54 Ark. 131; s. c. 15 S. (D. C. App.), 22 Wash. L. Rep. 249; W. Rep. 361. 1123 1 Tliomp. Neg.J negligence in relation to the highway. condition in which the street is left by hiin.^°* If a contractor, under authority of law, digs a sewer in a public street j and fills it up and restores the street in a proper manner, and after several months the earth replaced in it sinks by a natural subsidence, and a traveller in crossing it sustains injuries, he can not recover of the contractor.^"' The obligation of the contractor to the public ceases as soon as he has properly restored the road, and it is thereafter the duty of the public authorities to make the necessary repairs. § 1265. Tobogganing^ in the Public Street. — It was said, in a case where an injury accrued to a traveller on a public street from a col- lision with a toboggan, that the act of building a toboggan slide across a public street was a "wrongful, dangerous and negligent act," and the conclusion was that, the plaintiff having sustained an injury from a toboggan without her fault, was entitled to recover damages. The court further held that the municipal corporation had no power to grant a license to any one to make such a use of a portion of the street.^"" The true theory of the case was that such a use of a public street or highway is a public nuisance and that the municipal corpora- tion holding the control and reparation of its streets as a public trust, has no authority to grant a license to any one to erect a nuisance therein. § 1266. Obstructions of the Streets by Gas Companies. — Gas com- panies, water companies, and the like, obstructing the street for their own private gain although acting under franchises granted by the state, or licenses granted by the municipal corporation, are under the duty of lighting or guarding the obstructions which they are obliged to make, and of so repairing them as to prevent them from becoming dangerous to public travel, or to the animals lawfully on the street. Thus, a gas company is under the duty of supervising and keeping in repair a gas box placed in a sidewalk to afford means for turning on or off the gas from a house, where the company has the entire control of the box to the exclusion of the property owner, although the latter is required to pay for the gas box and its connections.^"^ Where a gas company after laying down a main in a public highway, fails to ^"'Kulwicki v. Munro, 95 Mich. 28; Supp. 291; s. c. 8 Rail. & Corp. L. J. s. c;54 N. "W. Rep, 703. 167; 32 N. Y. St. Rep. 478. ™ Hyams v. Webster, L. R. 4 Q. B. '"^ Washington Gaslight Co. v. Dis- 138 (aff'g s. c. L. R. 2 Q. B. 264); trict of Columbia, 161 U. S. 316; s. c. 8 Best & S. 272; 36 L. J. Q. B. s. c. 40 L. ed. 712; 24 Wash. L. Rep. 166; 38 L. J. Q. B. 2l; 16 L. T. (N. 470; 16 Sup. Ct. Rep. 564; aff'g s. c. S.) 118; 17 Week. Rep. 232. sub nam. District of Columbia v. "Haden v. Clarke, 10 N. Y. Washington Gaslight Co., 19 Wash, L. Rep. (D. C.) 354. 1124 OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. reinstate the roadway properly and leaves it in a condition amounting to a public nuisance, in consequence of which any person suffers special damage, the gas company is liable in damages to such person, not- withstanding the existence of a statute imposing a daily penalty for failing to properly reinstate the road.^"^ § 1267. Street Obstructions and Dangers by Water Companies. — A water company dug a ditch in a public street for its own purposes, and negligently left it open and unguarded in the night-time. A cow fell into it and was killed. The company was liable for the dam- ^ggg_303 Permission conferred upon a water company by statute or ordinance to place hydrants in the streets and open them to flush its mains gives it no license or right to flush either at such times or in such manner as unnecessarily to impede travel or imperil the safety of those using the street, but it is under obligation to do the flushing with reasonable care and a due regard to the rights of others.^"* To exercise the- right thus given by opening a hydrant and throwing water from it about ten feet into a street with considerable noise and spray, is an act calculated ta frighten ordinarily gentle horses, and this fact requires that the company should exercise care and take pre- cautions for the protection and safety of those travelling on the street. ^"^ Although it is ordinarily lawful for a water company to allow the water to flow from its hydrants, yet if it allows the water to so flow in freezing weather, so as to create a dangerous accumulation of ice on the sideioalh, which it negligently fails to remove, — it may become liable to a traveller injured thereby.^"* § 1268. Obstructions of Highways by ToU-Gates. — An unlawful or unauthorized toll-gate is a public nuisance, and no question of negli- ^"'^ Goodson v. Sunbury Gas Con- 3. A flag-signal or other object of sumers' Co. (Q. B.), 75 Law T. Rep. warning might have been placed on 250; s. c. 60 J. P. 585 (no off. rep.), either side of the hydrant to call ="= Pine Bluff Water &c. Co. v. Der- the attention of travellers to the risseaux, 56 Ark. 132; s. c. 19 S. W. open hydrant, and thus enable them Rep. 428. to better control their horses or ^Topeka Water Co. v. Whiting, turn into another street. And 58 Kan. 639; s. c. 39 L. R. A. 90; 50 finally, it was suggested that the Pac. Rep. 877. water from the hydrant might be '°= Topeka Water Co. v. Whiting, conducted off by means of a proper 58 Kan. 639; s. c. 39 L. R. A. 90; 50 hose. The court said that it did Pac. Rep. 877. The precautions sug- not undertake to determine just gested were: 1. That the mains what precautions should have been might be flushed at night, when few taken, but that it was certain that if any persons would be passing, such precautions should have been 2. That employes might have been adopted as would have accomplished stationed at the open hydrant to the purpose: Topeka Water Co. v. shut off the water on the approach Whiting, 58 Kan. 643, 644. of a trightened horse, or that one ™»Waltemeyer v. Kansas City, 71 might be stationed on either side of Mo. App. 354. » it to warn travellers of the danger. 1125 1 Tliomp. Neg.] negligence in relation to the highway. gence arises in maintaining it, because it is unlawful per se and sub- jects the persons maintaining it to prosecution by indictment j^"'' and, although the toll-gate may not itself be unlawful, yet it may be so negligently constructed as to subject the person or corporation main- taining it to an action for damages by travellers injured thereby, — as, where it was so constructed that a traveller, without fault on his part, came in contact with it on a dark night.'"* AeTICLE V. CONTKIBUTORY NEGLIGENCE OF THE INJURED Tkavellek. Section 1271. Contributory negligence of travellers injured by obstruc- tions, excavations, etc., in the public streets. 1272. Pacts to which contributory negligence has not been as- cribed. Section 1273. Contributory negligence of traveller injured through areas under the sidewalk. 1274. No defense that the person in- jured might have taken an- other way which was safe. § 1271. Contributory Negligence of Travellers Injured by Obstruc- tions, Excavaticns, etc., in the Public Streets.^ — In the first place, a person using a city street is entitled to act upon the assumption that the municipal corporation has done its duty, by keeping it in a reason- ably safe condition for public travel. '"'' In the next place, the man- ner of using the ordinary streets and highways, and the care which reasonable and prudent persons will exercise for their own safety in using them, is a matter which comes so entirely within the range of ordinary experience, that whether a traveller, in a particular case, has failed to exercise ordinary care for his own safety, will generally pre- sent a question of fact for the decision of a jury.'^" This is always so ""5 Thomp. Corp., §§ 5910, 5911. =™ Stewart v. Chester &c. Road Co., 6 Del. Co. Rep. (Pa.) 434; s. c. aff'd in 3 Super. Ct. (Pa.) 86. a This section is cited in § 447. ™ See McGuire v. Spence, 91 N. Y. 303, 805, where the following lan- guage is used, containing, it would seem, too strong a statement of the doctrine of the above text: "One who passes along a sidewalk has a right to presume it to be safe. He is not called upon to anticipate dan- ger, and is not negligent for not be- ing on his guard. Whoever left this area in the sidewalk, open and un- covered, was guilty of a positive 1126 wrong. It amounted to an obstruc- tion of the street. It was a trap set for the unwary, or for those hur- ried or inattentive. Nobody was bound to anticipate its existence, or to look for it, although it was visi- ble. The plaintiff, therefore, was bound to no special care to avoid such an accident as happened, and the jury were justified on the facts in finding her free from negligence." ^'° Born V. Allegheny &c. Road Co., 101 Pa. St. 334. It follows that the defendant is not entitled to an in- struction to the effect that if the plaintiff could have seen the ob- struction he should have gone OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. where the facts are complicated or unusual, or such that different minds, fairly considering them, might draw different conclusions from them;^^^ though it must be conceded that here, as elsewhere, the question will, outside of extreme limits, be decided by the judge, in directing a nonsuit, or in giving a peremptory instruction. Com- ing closer to the question, it is a sound proposition that a knowledge on the part of a traveller that there is some danger in attempting to pass over or by an obstruction, on or near the highway, will not, as matter of law, impute contributory negligence to him; but whether he acts with reasonable care must be judged of in view of all the cir- cumstances surrounding his situation, — such as his distance from home, the object of his journey, and the exigencies under which he is travelling.^ 12 As we shall hereafter see, when dealing with this sub- ject in connection with the liability of municipal corporations,^ ^^ it is a principle constantly applied, that while a traveller will not be excused in recklessly casting himself upon a known obstruction, yet contributory negligence is not imputable to him as matter of law, from the mere fact that he attempts to pass over a highway that is obstruct- ed or otherwise out of repair, provided the obstruction or other defect is such that a man of ordinary intelligence would reasonably believe that, with proper care and caution he could pass with safety notwith- standing the defect.^ 1* § 1272. Facts to which Contributory Negligence has Not been As- cribed. — The courts have refused to ascribe contributory negligence as matter of law, to the act of a stranger, in an incorporated village, on coming to a termination of the sidewalk after nightfall, in endeav- around it; since the question of ^"Clarke v. Rhode Island &c. Co., what he should have done is for the 16 R. I. 463; s. c. 17 Atl. Rep. 59. jury,, under all the circumstances, ^'^ Evansville &c. R. Co. v. Crist, and the judge ought not to invade 116 Ind. 446; s. c. 19 N. E. Rep. 310; their province by giving an argu- 2 L. R. A. 450. It necessarily fol- mentative instruction: Pomfrey v. lows that it is competent for the Saratoga Springs, 34 Hun (N. Y.) plaintiff to introduce evidence show- 607 (Fish, J., dissenting). Circum- ing the exigencies under which he stances under which, where the was travelling, — as that there was driver of a coal-wagon, delivering no other road by which he could coal into the basement of a court- reach his destination: Skjeggerud house, was killed by a heavy iron v. Minneapolis &c. R. Co., 38 Minn. grating falling upon him. The ques- 56; s. c. 35 N. W. Rep. 572. tion whether he was negligent was ™ In a succeeding volume, held a question for the jury, al- ^"Skjeggerud v. Minneapolis &c. though the rule of the jurisdiction R. Co., 38 Minn. 56; s. c. 35 N. W. requires the plaintiff or person in- Rep. 572; Gulf &c. R. Co. v. Gass- jured to aver and prove freedom kamp, 69 Tex. 545; s. c. 7 S. W. Rep. from contributory negligence: Gal- 227; Gordon v. Richmond, 83 Va. vin v. New York, 112 N. Y. 223; s. c. 436; s. c. 2 S. E. Rep. 727. 20 N. Y. St. Rep. 569; 19 N. E. Rep. 675. 1127 1 Thomp. Neg.] negligence in relation to the highway. oring to descend to the ground, in doing which, in a careful manner, he fell upon an object injuring him;^^^ nor to the act of a traveller who has driven over a street during the day, finding it in a safe con- dition, with barriers erected around an excavation which was being made in it, in driving over the same street again after nightfall, and falling into a ditch in consequence of the barriers being down;'^* nor in the act of a street-railway conductor, in standing upon the foot- board of the car, while passing a barrier erected in the street, — the question being for the jury.^^'' On a principle, elsewhere much con- sidered,^^* if the traveller acts erroneously under an impression of sudden peril, put upon him by the negligence of the obstructor of the street, this will not be imputed to him as contributory negligence bar- ring his right of recovery, — as where he jumps from his wagon while it is overturning.^''-^ § 1273. Contributory Negligence of Traveller Injured through Areas under the Sidewalk. — Moreover, the contributory negligence of the traveller who is injured will, of course, constitute a defense if there is evidence tending to show such contributory negligence."^" And this will ordinarily, though not in all cases, present a question for the jury.^^^ But one who is without fault, and who is proceeding in "=Poiica V. Crawford, 23 Neb. 662; s. c. 37 N. W. Rep. 609; 8 Am. St. Rep. 144. ^" Bloomsburg Steam & Electric Light Co. v. Gardner, 126 Pa. St. 80; s. c. 17 Atl. Rep. 521; 24 W. N. C. 21; 46 Phila. Leg. Int. 234; 17 Wash. L. Rep. 586. This case turned rather on the propriety of the rul- ings of the trial judge on "points" submitted to him. ""Powers V. Boston, 154 Mass. 60; s. c. 27 N. E. Rep. 995. ^^^ Ante, § 197, and other sections there cited. ■"" Lewis V. Riverside Water Co., 76 Cal. 249; s. c. 18 Pac. Rep. 314. That a complaint in such an action alleging that the plaintiff was with- out any fault or negligence on her part, sufficiently avers her freedom from contributory negligence, al- though it states that she was riding on an embankment thrown up by a railroad company alongside the track, for which an excavation had been dug in a highway where such embankment was the only place of passage, — see Bvansville &c. R. Co. v. Crist, 116 Ind. 446; s. c. 19 N. E. Rep. 310; 2 L. R. A. 450. For ex- 1128 amples of instructions in a case where a person was injured by being run upon by a car used in convey- ing grain from an elevator to the main track of a railroad, which im- posed relatively a greater degree of care upon the plaintiff than upon the elevator company, and which were hence condemned, — see Quirk V. St. Louis &c. Elev. Co., 126 Mo. 279; s. c. 28 S. W. Rep. 1080. "=° Fisher v. Thirkell, 21 Mich. 1. For similar views see Irvin v. Fowl- er, 5 Robt. (N. Y.) 482; Beardsley V. Swann, 4 McLean (U. S.) 333; Beatty v. Gilmore, 16 Pa. St. 463; Bush V. Johnston, 23 Pa. St. 209; Proctor V. Harris,. 4 Car. & P. 337; Buesching v. St. Louis Gaslight Co., 6 Mo. App. 85; s. c. 6 Cent. L. J. 458. "^ As where there was an iron railing with a pointed top around the area in the sidewalk, and the plaintiff slipped upon ice there ac- cumulated, and threw out his hand to save himself from falling, and hurt it upon the railing: Kelly v. Bennett, 132 Pa. St. 218; s. c. 7 L. R. A. 190; 25 W. N. C. 368; 19 Atl. Rep. 69; 47 Phila. Leg. Int. 107. So, where there was an opening for OBSTRUCTING AND ENDANGERING TRAVEL. [2d Ed. the exercise of ordinary care, will not be debarred from recovering damages from the fact that his injury arose from his accidentally stumbling on the sidewalk, concurring with the negligence of the ad- joining owner in leaving the excavation at the edge of the sidewalk unguarded and uncovered.' ^^ § 1274. No Defense that the Person Injured might have Taken Another Way which was Safe.^ — Where the injury happens on a side- walk, in a large city, it is no defense that there is a safe and convenient sidewalk outside of the dangerous area or defect, — as, where a window extended into the sidewalk only fourteen inches, and the walk was six and one-half feet wide.'^' Article VI. Eight to Maintain Private Action Depends upon Special Damage. SEOTioJsr 1276. Right of action in the owner of the fee for obstructing the highway. 1277. Private action for obstructing the public way lies only where there is special dam- age. 1278. Tests by which to determine Section what is special damage in this relation. 1279. Illustrations showing what is special damage in this rela- tion. 1280. What is not special damage in this relation. 1281. Special damage must be plead- ed, and how. § 1276. Right of Action in the Owner of the Fee for Obstructing the Highway. — At common law, as is well known, the right of the public to pass and repass upon a highway is merely an easement; the ultimate right of property, called the fee,^^^ may reside in a private proprietor; and he may maintain an action as for a trespass against any person who puts the highway to any use other than that embraced within the public easement, — the right of passage and repassage,'^' and the incidental rights thereto appertaining. ''^^ Thus, it has been light and ventilation in a sidewalk, and the plaintiff slipped into it while it was well lighted and there was plenty of room on the sidewalk to pass it in safety, it was held, two judges dissenting, that there was evidence of contributory negligence to be submitted to the jury: King V. Thompson, 87 Pa. St. 365. '"^ Cannon v. Lewis, 18 Mont. 402; s. c. 45 Pac. Rep. 572. a This section is cited in § 1225. '^ Bacon v. Boston, 3 Cush.(Mass.) 174; Stephani v. Brown, 40 111. 428. See also Denver v. Soloman, 2 Colo. App. 534; s. c. 31 Pac. Rep. 507; Stuart V. Havens, 17 Neb. 211. »" Hooker v. Utica &c. T. Co., 12 Wend. (N. Y.) 371. '^ Robbins v. Borman, 1 Pick. (Mass.) 122; Adams v. Emerson, 6 Pick. (Mass.) 57. ^=»0'Linda v. Lothrop, 21 Pick. (Mass.) 292. 1129 1 Thomp. Neg.] negligence in relation to the highway. held that the proper use of a highway does not include the right to race upon it,^^'^ and that the owner of the fee might hence maintain an action against one who took part in a hurdle-race, for placing hurdles in the highway. ^^' But the rights of the owner of the fee are not violated by an abutting owner placing gates and doors so near the street that when opened they swing over it; -nor by his suffering horses and carriages occasionally to stand in the street near his prem- ises ; nor by his placing timber or other materials in the street, prepar- atory to building a barn on his own land; nor by his throwing earth out of his cellar upon the street, for the purpose of removing it, — tak- ing care that these obstructions shall not be unreasonable in extent or duration; nor by his spreading earth on the street, so as to make it more level and his own barn more accessible.'^' ISTor is it a violation of the rights of the owner of the fee, for a turnpike company to use the soil within their right of way in a reasonable manner for the repair of their turnpike, taking care to inflict upon the owner of the fee no unnecessary injury. The land damages originally awarded when the turnpike was built are assumed to have been assessed upon the prin- ciple of affording a suitable compensation for such a taking.' '" Eights of action on the part of the owners of the fee in the highway more frequently proceed upon the rights of abutting owners to an easement in respect of the highway peculiar to such owners and different from the general easement which the public enjoy therein, — the easement of light, of air, and of ingress to and egress from the highway in front of the premises of the abutter. For an injury to this peculiar ease- ment the principles of the common law give an action for damages. The right of action of such an abutter is clearer where the obstructor of the highway actually invades his premises, and inflicts a direct physical injury upon his property. Thus, if a contractor, while re- constructing a city street, carelessly and negligently piles on the side- walk of an abutter an undue quantity of removed paving material, to the injury of the abutter's excavation under the sidewalk, the latter has a right of action against the contractor.''^ So, if one abutting owner making an excavation in the street for purposes connected with a building which he is erecting, as within certain limits he may right- fully do,"^ but he nevertheless so conducts the w(5rk of excavating as to cast water upon the premises of another abutter, damaging his per- sonal property there stored, the author of the damage must answer '" Sowerby v. Wadsworth, 3 Fost. "» Baxter v. Winooski T. Co., 22 &■ Fin. 734; Rex v. Timmins, 7 Car. Vt. 114. & p. 499. "'^ Westliche Post Asso. v. Allen, ^=' Sowerby v. Wadsworth, 3 Fost. 26 Mo. App. 181. & Fin. 734. '''Ante, § 1225. ^'^O'Llnda v. Lothrop, 21 Pick. (Mass.) 292. 1130 OBSTRUCTING AND ENDANGEEING TRAVEL. [2d Ed. for it."^ But in these, as in other like eases,^^* if the plaintiff can, at a trifling expense and by reasonable exertion, ward off the damage, it is his duty to do so, no matter who may have been originally in fault; and he can not recover compensation for damage which he might thus have prevented.^ ^' § 1277, Private Action for Obstructing the Public Way Lies only where there is Special Damage. — The unlawful or unreasonable ob- struction of a highway is a public nuisance, and, in general, the only remedy therefor is by indictment ;^^° but if a person has sustained special damage in consequence of such an obstruction, he may main- tain a civil action therefor against the obstructor.^^^ For example, one who maintains an unlawful obstruction upon a highway, by means of which another, through no fault of his own, is specially injured in person or property, is liable to the latter.^ ^^ ISTor, according to one ™ Durgin v. Neal, 82 Cal. 595; s. c. 23 Pac. Rep. 133. '""Ante, § 201, et seg; § 251, et seq. ^Stewart v. Clinton, 79 Mo. 614; Munkres v. Kansas City &o. R. Co., 72 Mo. 514; Westliche Post Asso. v. Allen, 26 Mo. App. 181, 189. "^'Year Book 27 Hen. VIII. 27; Iveson V. Moore, 1 Ld. Raym. 486; Fineux v. Hovenden, Cro. Eliz. 664; Paine v. Patrick, Garth. 193; Chi- chester V. Lethbridge, Willes 71; Lansing v. Smith, 8 Cow. (N. Y.) 146; Butler v. Kent, 19 Johns. (N. Y.) 223; Pierce v. Dart, 7 Cow. (N. Y.) 609; Mills v. Hall, 9 Wend. (N. Y.) 315; Dougherty y. Bunting, 1 Sandf. S. C. (N. Y.) 1; Houck v. Wachter, 34 Md. 265; Baltimore v. Marriott, 9 Md. 160, 178; Ricket v. Metropolitan R. Co., 5 Best & S. 156; s. c. 34 L. J. (Q. B.) 257; Rex v. Jones, 3 Camp. 229; The People v. Cunningham, 1 Denio (N. Y.) 524; Rex v. Bristol Dock Co., 12 East 429; Caledonian R. Co. v. Ogilvy, 2 Macq. H. L. Cas. 229; Baxter v. Winooski T. Co., 22 Vt. 114; Pekin v. Brereton, 67 111. 477; Proprietors v. Nashua &c. R. Co., 10 Cush. (Mass.) 385; Borden v. Vincent, 24 Pick. (Mass.) 301; Fowler v. Sanders, Cro. Jac. 446. =" Com. Dig., tit. "Action upon the Case for a Nuisance," C; Greasly v. Codling, 2 Bing. 263; Meynell v. Saltmarsh, 1 Keb. 847; Hart v. Bas- sett. Sir T. Jones 156-; 4 Vin. Abr. 519; Iveson v. Moore, 1 Ld. Raym. 486; Rose v. Miles, 4 Mau. & Sel. 101; Rose v. Groves, 5 Man. & G. 613; Myers v. Malcomb, 6 Hill (N. Y.) 292; Lansing v. Smith, 4 Wend. (N. Y.) 9; Lindley v. Bushnell, 15 Conn. 225; Houck v. Wachter, 34 Md. 265; Baltimore v. Marriott, 9 Md. 160, 178; Smith v. Smith, 2 Pick. (Mass.) 621; Stetson v. Faxon, 19 Pick. (Mass.) 147; Barron v. Bal- timore, 2 Am. Jur. 201; Weick v. Lander, 75 111. 93; Delzell v. Indian- apolis &c. R. Co., 32 Ind. 45; Kessel v. Butler, 53 N. Y. 612; Rockwell v. Third Avenue R. Co., 64 Barb. (N. Y.) 438; Hathaway v. Hinton, 1 Jones L. (N. C.) 243; Hundhausen v. Bond, 36 Wis. 29; Manley v. St. Helens Canal Co., 2 Hurl. & N. 840; s. c. 27 L. J. (Bxch.) 159; Kirby v. Boylston Market Assn., 14 Gray (Mass.) 251; Dobson v. Blackmore, 9 Q. B. 991; Shipley v. Fifty Asso- ciates, 101 Mass. 254; Pennsylvania Canal Co. v. Graham, 63 Pa. St. 290. The same principle has been held to apply in case of an action against a town, under a statute, for permit- ting the highway to remain ob- structed. Farnum v. Concord, 2 N. H. 392; Eastman v. Meredith, 36 N. H. 284; Ball v. Winchester, 32 N. H. 435; Griffin v. Sanbornton, 44 N. H. 246; Holman v. Townsend, 13 Mete. (Mass.) 297; Tisdale v. Norton, 8 Mete. (Mass.) 388; Harwood v. Low- ell, 4 Cush. (Mass.) 310; Brailey v. Southborough, 6 Cush. (Mass.) 141; Tomlinson v. Derby, 43 Conn. 562; Williams v. Tripp, 11 R. I. 447. "McKune v. Santa Clara Valley 1131 1 Thomp. Neg.J negligence in relation to the highway. opinion, can an owner of property who places an obstruction in an adjoining public street, escape liability for an injury caused thereby, on the ground that he placed it there to protect the public from injury from a dangerous sewer which he has previously constructed, because the making of a sewer across a highway in such a manner as to be dangerous to travellers was an actionable wrong, and that the placing of the post in the highway was also a wrong which would furnish a cause of action, and it was no escuse that the post was so placed to guard against injuries that might be caused by the sewer.^^' § 1278. Tests by which to Determine What is Special Damage in this Relation. — "The question in all such cases is, whether the incon- venience complained of is general, or a particular inconvenience of the party complaining."^*" "The foundation of every such action is the special damage. The nuisance, per se, gives no cause of action. It is strictly analogous to an action for slander for words not actionable in themselves, or an action by a master for the beating of his servant, or by a parent for the debauching of his daughter. In all these cases, the gist of the complaint is special damage. It is that, and that alone, which entitles the plaintifE to recover."^ *^ "He, and he only, can main- tain an action for an obstruction who has sustained some damage peculiar to himself, his trade or calling."^*^ It may be stated as a general rule, to which there is probably no exception, that a person who, without fault on his part, sustains an injury through direct con- tact with the obstruction,''*^ or in consequence of his horse taking fright at it,^** may maintain a private action for damages. The cases on this question conduct us to no very clear rule, but the follow- ing distinction may perhaps be considered established: If there is nothing peculiar in my situation, making the damages suffered by me in consequence of the obstruction of a highway other than other mem- bers of the community are liable to suffer, it is not a case of special damage ; but if, in consequence of my business or situation, the unob- structed use of the highway is necessary to me in a peculiar degree, — ■ as, if I am a carrier or merchant, obliged to drive over it daily with a &c. Co., 110 Cal. 480; s._c. 42 Pac. ""Burrough, J., in Greasly v. Cod- Rep. 980. ling, 2 Bing. 266. ™Gunther v. Dranbauer, 86 Md. ""Thomp. on Highw. 256; Lan- 1; s. c. 38 Atl. Rep. 33. Existence sing v. Smith, 8 Cow. (N. Y.) 153. of a fence across an old road for "" Kelly, C. B., In Winterbottom three months raises a presumption v. Lord Derby, L. R. 2 Exch. 322. of public knowledge that the road is "' Manley v. St. Helens Canal Co., closed: Galveston Land &c. Co. v. 2 Hurl. & N. 840; Kessel v. Butler, Levy, 10 Tex. Civ. App. 104; s. c. 30 53 N. Y. 612; Fox v. Sackett, 10 Al- S. W. Rep. 504. len (Mass.) 535. '^Ante, §§ 1055, 1213. 1132 OBSTRUCTING AND ENDANGERING TRAVEL. [2(1 Ed. large number of wagons/ ^^ or if I am a collier, and the particular way is necessary to enable me to have access to and egress from my coal-pit/*' — I may recover the damages sustained by me through its obstruction. § 1279. Illustrations Showing What is Special Damage in this Re- lation. — Thus, in each of the following cases, the plaintiff, suing an obstructor of a highway, was held to have suffered special damage, and was hence entitled to a verdict therefor: Where the plaintiff, a retail coal-higgler, was delayed in consequence of the obstruction four hours, and was thereby prevented from performing the same journey as many times a day as if the obstruction had not existed/*^ where, by reason of the obstruction of the highway, the plaintiff and his serv- ants were compelled to go by a longer route, and thereby the work and labor of the plaintiff was necessarily consumed to a greater extent, and the plaintiff was prevented from employing his servants during such excess, as he otherwise would have done/** where the plaintiff, having a number of carts, which in their journeys back and forth were obliged to pass over a certain drawbridge, and, by reason of the bridge being kept open during unreasonable lengths of time, he was so de- layed that he was obliged to provide two additional carts and a new wharf in another situation in order to do his work Z*'' where the plaint- iff was entitled to receive tithes, and, by reason of the obstruction, was forced to carry them by a circuitous route/"" where the plaintiff was compelled to carry his goods overland, at an increased expense, in con- sequence of the defendants mooring a barge across a public navigable § 1280. What is Not Special Damage in this Relation. — But in the following cases the plaintiff was held not to have sustained special damage, and was hence not entitled to maintain a private action against the person obstructing the highway: Where the plaintiff was unable to show any other damage than being obliged to proceed by a circuitous route, and having been hindered, delayed, and put to loss of time and money by reason of the obstruction/^^ where, by the general badness of the road, he was delayed for a long period in carrying his ™ Greasly v. Codling, 2 Bing. 263. '" Wiggins v. Boddington, 3 Car. ^' Iveson v. Moore, 1 Ld. Raym. & P. 544. 486; s. c. Willes 74, note a. ^»° Hart v. Bassett, Sir T. Jones ^' Greasly v. Codling, 2 Bing. 263. 156. Doubted in Houck v. Wachter, 34 ^' Rose v. Miles, 4 Mau. & Sel. 101. Md. 273. ^== Houck v. Wachter, 34 Md. 265 ^"Blagrave v. The Bristol Water- (denying Greasly v. Codling, 2 Bing. Works Co., 1 Hurl. & N. 367; s. c. 26 263) ; Winterbottom v. Lord Derby. L. J. (Bxch.) 57. L. R. 2 Exch. 316. 1133 1 Thomp. Neg.] negligence in relation to the highway. produce to market, whereby he suffered great losses.^'' For dam- ages resulting to a shopkeeper by reason of the fact that his customers were turned away by hoardings erected in the necessary operation of building, under a license from the proper municipal officers, no action lies; but if the operations are so negligently conducted that bricks, tiles, etc., fall through the skylight upon an adjacent building, and injure the goods of a shopkeeper therein, he may recover damages.^'* § 1281. Special Damage must he Pleaded, and How. — Here, as else- where,^'*" it is a good rule of pleading that the damages sustained by the plaintiff, not in common with the rest of the public, must be spe- cifically pleaded.^"* A statement that the plaintiff was, by reason of the obstruction, "prevented from attending to his ordinary busi- ness," is obviously insufficient.'^^ Although in an action for an in- jury consisting of the obstruction of a private right of way, the plaint- iff may declare with a continuendo, for the gravamen of the action is the stoppage of the way, which may be continued, yet it is otherwise in case of an action for an injury sustained by the obstruction or non- repair of a public way ; it is the per quod which is the gravamen of such an action, and not the insufficiency of the way. Such an injury, sus- tained on a particular day, can not be repeated ; and, therefore, under the rule applicable to this point in pleading,^"* if such damages are laid with a continuendo, the court should confine the plaintiff's proof to a single injury.'^* ="^ Baxter v. Winooski T. Co., 22 Conn. 36; Parrelly v. Cincinnati, 2 Vt. 114. Disney (Ohio) 516; Tomllnson v. '"Bradbee v. Christ's Hospital, 4 Derby, 43 Conn. 562. Man. & G. 714; 5 Scott N. R. 79; 2 =" Tomlinson v. Derby, supra. Dow. (N. S.) 164. =■=« Monkton v. Pashley, 2 Salk. "^n Chitty's PI. 428. 638; 9 Bac. Abr. 511. ™ Bristol Man. Co. v. Gridley, 28 =■"' Baxter v. Winooski T. Co., 22 Conn. 201; Taylor v. Monroe, 43 Vt. 114, 127. 1134 THE LAW OF THE EOAD. [2d Ed. CHAPTER XL THE LAW OF THE ROAD. Article I. Collisions of Teams and Vehicles with Each Other. Section Section 1283. Degree of care exacted of 1289. Case where this "law of the travellers on the highway. road'" does not apply. 1284. Injuries from collisions of 1290. Collisions with teams ap- teams on the highway. preaching from behind. 1285. Duty to keep to the right. 1291. Duty where teams approach 1286. Further of the rule of keeping each other in the dark. to the right. 1292. Construction of statutes en- 1287. Still further as to keeping to joining the duty of keeping the right. to the right. 1288. Whether horseback riders bound to observe the "law of the road." § 1283. Degree of Care Exacted of Travellers on the Highway. — While the law does not make a traveller upon the public street or highway, an insurer against accidents which may happen in conse- quence of his being there/ yet, it demands of him the exercise of what is described in books of the law, to be reasonable or ordinary care. As in every other situation, this degree of care is a care and foresight commensurate with the danger to others which attends the particular situation.^ The traveller must be more vigilant in the crowded street of a city than on a country road; he must exercise more care to avoid running over an infant than would be necessary in the case of an adult. ^ Travellers using a private way, such as a cul de sac, in a city, over which the public have merely a license to travel, are held to no greater degree of diligence to avoid injury to persons there — ^in the particular case, children at play — than if travelling on a public way.* Actions for injuries occasioned by travellers colliding on the ^ Collins v. Leafey, 124 Pa. St. 203; Warner Co., 1 Marv. (Del.) 88; s. c. s. c. 23 W. N. C. (Pa.) 264; 16 Atl. 37 Atl. Rep. 39. Rep. 765. ' Vaughn v. Scade, 30 Mo. 600, 605. ' For a very clear exposition of * Danforth v. Durell, 8 Allen this doctrine, see Carter v. Cham- (Mass.) 242. bers, 79 Ala. 223; Ford v. Charles 1135 1 Thomp. Neg.] negligence in relation to the highway. highway furnish very apt illustrations of the principles of the law of negligence: the plaintifE can not recover if ordinary care on his part would have prevented the injury. The plaintiff being without fault, the defendant must pay damages, unless he make it appear that the collision was unavoidable, and without any blame imputable to him.' In Kentucky, it has been held erroneous, in a case of a collision of boats, to instruct the jury that it was the duty of the defendaat to ' take "such ordinary precaution and care, in passing the plaintiff's boats, as persons of ordinary care and skill would take in preventing the loss of their own property." The Kentucky court was of opinion that, except in tne case of a bailment, a man is not obliged to take the same care to avoid injuring another's property as he would to avoid injuring his own, but that the jury should have been told that the de- fendant was liable if he failed to take that degree of care and pre- caution * * * that ordinarily prudent and skillful men, under like circumstances, would and should have observed.* And this rule has been reiterated by the same court as applicable to collisions in the highway.' It was therefore held error to tell the jury that, in the absence of any fault in the plaintiff, superinducing the collision, to excuse the defendant such collision must have been wholly unavoid- able.^ A mere statement of this doctrine suggests that there is no presumption of law in these cases that the defendant has been negli- gent, arising from the mere fact of the happening of the accident. The maxim res ipsa loquitur has no application here. The burden is on the plaintiff, and he must make out his case f and it has been held that he. does not make out even a prima facie case by showing negli- ■^ Center v. Finney, 17 Barb. (N. means of the acts of the plaintiff Y.) 94; s. c. affirmed, Seld. Notes, himself, or by mere accident, the 80; Parker v. Adams, 12 Mete, defendant was not liable; and the (Mass.) 415; s. e. 1 Thomp. Neg., jury found for the defendant. A 1st ed., 376. new trial was granted for the omis- " Watson V. McGuire, 17 B. Men. sion of the judge to instruct the (Ky.) 31. jury to inquire whether, under the ' Hawkins v. Riley, 17 B. Mon. circumstances of the case, the de- (Ky.) 101. fendant was not bound to know that ^ IMd. In an action of trespass his boat could not pass without haz- against the master of a ioat navi- ard, and if he was, whether he gating the Erie Canal, for running ought not to have proceeded with her against another boat lying in greater caution. Dygert v. Bradley, the canal, waiting her turn to pass 8 Wend. (N. Y.) 469. Compare the locks, the judge presiding at the Rathbun v. Payne, 19 Wend. (N. Y.) trial charged the jury that the de- 399. fendant was liable if he had been "Cotton v. Wood, 8 C. B. (N. S.) guilty of negligence, or intended to 568; s. c. 1 Thomp. Neg., 1st ed., p. inflict the injury; but that if there 364; Schmidt v. Harkness, 3 Mo. was no negligence, or design of in- App. 585; Lane v. Crombie, 12 Pick, jury, and if, in attempting to pass, (Mass.) 177; Parker v. Adams, 12 the defendant managed his boat in Mete. (Mass.) 415; s. c. 1 Thomp. a prudent and "skillful" manner, Neg., 1st ed., 376. and the Injury was sustained by 1136 THE LAW OF THE KOAD. [2d Ed. genee on the part of the defendant ; he must also, in some jurisdictions, show that his own carelessness did not contribute to the accident.^" The subject of the burden of proof will be discussed more generally in another volume. It has been held that an instruction to a jury, as to the care to be exercised in driving, should state that such care is re- quired as persons of ordinary intelligence and prudence would exer- cise under like circumstances, and not such as an ordinary business man, or an ordinary man would use.^^ The rule does not require that the owner of a vehicle which is driven over -a child on a highway shall be "utterly without fault," in order to relieve him from liability for the injury; since this would abolish the standard of ordinary or reasonable care, and make him liable for the slightest negligence on the part of his driver.'-^ § 1284. Injuries from Collisions of Teams on the Highway. — In these cases, the question of the negligence of the defendants, and the contributory negligence of the plaintiffs, almost invariably arises, and, with the exception of one or two American jurisdictions the rule is, that where the concurrent and contemporaneous negligence of two persons causes a collision in a public street or highway, neither can recover damages from the other for the resulting injury ;^^ though, as already seen, if one of them has been negligent merely in the fact of exposing himself to the injury which he received from the other, this will not necessarily preclude him from recovering damages.^* The obligation which the law imposes upon a driver is to exercise reasonable care, to the end of keeping his horses and vehicle under such control as to be able to prevent a collision with another driver or a foot-passenger on the highway.^'' '"Dressier v. Davis, 7 Wis. 527; s. c. 46 N. E. Rep. 310. An instruc- Lane v. Crombie, 12 Pick. (Mass.) tion to the effect that if neither the 177. As to the liability of owners plaintiff nor the driver of the bug- of a race-track, for an injury to a gy, in which the plaintiff sat, was horse which is being speeded upon guilty of negligence, but if the driv- the track, — see North Manchester er of the defendant's wagon, which Tri-County &c. Asso. v. Wilcox, 4 collided with the buggy, was guilty Ind. App. 141; s. c. 30 N. E. Rep. 202. of negligence, the verdict should be Where the defendant was sued for for the plaintiff, — met with judicial driving into the plaintiff's carriage, approval in Christian v. Irwin, 125 it was held no defense that the 111. 619; s. c. 17 N. E. Rep. 707; 15 plaintiff, being a licensed liquor West. Rep. 47. dealer, had sold the defendant '^ Joseph Schlitz Brew. Co. v. Dun- liquor, whereby he became intoxi- can, 6 Kan. App. 178; s. c. 51 Pac. cated so that he could not drive Rep. 310. properly: Cassady v. Magher, 85 »= Evans v. Adams Express Co., 122 Ind. 228. Ind. 362; s. c. 7 L. R. A. 678; 23 N. "Austin V. Ritz, 72 Tex. 391; s. c. E. Rep. 1039. 9 S. W. Rep. 884. That this is the "Awie, §§ 238, 241; vast, § 1325. standard demanded by the law,— see "= Young v. Cowden, 98 Tenn. 577; Cadwell v. Arnheim, 152 N. Y. 182; 40 S. W. Rep. 1088. VOL. 1 THOMP. NEG.- 1137 1 Thomp. Neg.] negligence in eelation to the highway. § 1285. Duty to Keep to the Bight. — In England and the continent of Europe, it is the custom, perhaps sanctioned by law, for vehicles meeting each other in the public street or highway, to pass by, each turning to the left; but in the United States it is the custom, sanc- tioned in many cases by statutes and municipal ordinances, for ve- hicles so meeting each other to pass by turning to the right. This rule of passing to the right is frequently called "the law of the road." Subject to qualifications hereafter stated, it requires every traveller, by carriage or other vehicle, not driven upon a fixed track, to turn sufficiently to the right, where there is room, to afford a safe and free passage to any traveller meeting him.^° § 1286. Further of the Eule of Keeping to the Eight. — As just ob- served, this rule seems to be a part of the common law of this coun- try,^^ but it has in some States been enacted by statute.^* Where such a statute is silent upon some point, — as, the duty of travellers in passing, when both are going in the same direction, — it has been held by an eminent judge that it can not be supplied by evidence of a cus- tom^ and for the forcible reason that it would make rights too inse- cure if they could be regulated by retrospective laws enacted by parol on the witness-stand.^" But the failing to keep to the right, in con- formity with this rule, is not the criterion of negligence : the traveller may, if he deems it best, attempt the passage on the left-hand side, being responsible for all consequences resulting from his negligence or imprudence, either in the manner of passing, or in the side selected '= Wilson V. Rockland Man. Co., 2 573. On the otlier hand, the driver Harr. (Del.) 67; McLane v. Sharpe, of the team coming in the opposite 2 Harr. (Del.) 481; Shockley v. direction is not chargeable with con- Shepherd, 9 Houst. (Del.) 270; s. c. tributory negligence in failing to 32 Atl. Rep. 173. In this case the turn to the left to avoid the run- court held that the failure of one away team, if that course would driving on a public road to keep to have rendered the collision inevita- the right in meeting another team, ble: Cadwell v. Arnheim, 81 Hun constitutes such negligence as will (N. Y.) 39; 62 N. Y. St. Rep. 574; render him liable for damages re- 30 N. Y. Supp. 573; s. c. rev'd as suiting from an ensuing collision ; another point, 152 N. Y. 182. These but this certainly can not be af- cases, v^ith many others hereafter firmed as a general rule. Neverthe- cited, show that there is no hard- less, the general obligation of keep- and-fast "law of the road," even Ing to the right, where practicable, where enacted by statute, requiring remains; and even where one's travellers to keep to the right in all horses are running away while upon cases. the left side of the road, he is bound " Daniels v. Clegg, 28 Mich. 32, 44. to make reasonable exertions to '»Rev. Stat. Mass., chap. 51, § 1; turn them to the right to avoid a Comp. Laws Mich. 1871, § 2002; collision with a vehicle coming in Palmer v. Barker, 11 Me. 338; 1 Rev. the opposite direction and on the Stat. N. Y. 695. § 1; Fales v. Dear- right side of the road: Cadwell v. born, 1 Pick. (Mass.) 344. Arnheim, 81 Hun (N. Y.) 39; s. c. "Bolton v. Colder, 1 Watts (Pa.) 62 N. Y. St. Rep. 574; 30 N. Y. Supp. 360, opinion by Gibson, C. J. 1138 THE LAW O^ THE EOAD. [2d Ed. for that purpose.^" A better statement of this doctrine is, that the fact that the traveller drives to the left is not negligence per se, nor does it necessarily make him answerable for damages in case of a col- lision ; but it is a circumstance to go to the jury as evidence of negli- gence;^^ for there may be circumstances making it excusable, and ^"McLane v. Sharpe, 2 Harr.(Del.) 481. Compare Fales v. Dearborn, 1 Pick. (Mass.) 344; Pluckwell v. Wil- son, 5 Car. & P. 375. ^' Jones V. Andover, 10 Allen (Mass.) 20; Goodhue v. Dix, 2 Gray (Mass.) 181; Spofford v. Harlow, 3 Allen (Mass.) 176; Randolph v. O'Riordon, 155 Mass. 331; s. c. 29 N. E. Rep. 583; Clay v. Wood, 5 Esp. 44; Wayde v. Lady Carr, 2 Dow. & Ry. 255; Lowry v. Lynch, 57 111. App. 323. See Brooks v. Ha,rt, 14 N. H. 307. In this case, the rights and duties of travellers under such a statute were thus well expressed by Woods, J.: "The act provides, in the first section thereof, 'that in all cases of persons meeting each other on any bridge, turnpike, or other road within this State, travel- ling with carriages, wagons, carts, sleds, sleighs, or other vehicle, the persons so meeting shall seasonably turn, drive, and convey their car- riages, etc., to the right of the cen- ter of the travelled part of such bridge, turnpike, or road, so as to enable each other's carriages, wa- gons, carts, sleds, sleighs, or other vehicle, to pass each other without interference or interruption.' And in its second section it is provided, 'that any person offending against any of the provisions of this act shall forfeit and pay, for each of- fense or neglect, a fine not less than one dollar, etc., and shall, more- over, be held answerable to any party for all damages which shall be sustained in consequence of such offense or neglect.' 1 N. H. Laws 583. The object of the statute is to facilitate and render safe the public travel, and to prevent all interrup- tions thereof, by prescribing the duty of each traveller in reference to every other, and in pointing to each the part of the way over which he may in safety travel without meeting with obstacles to impede his progress, or from which he might otherwise suffer detriment. And the court, in construing the act, are bound to give it such construction as to carry into effect the purposes of those who framed it. We are to give it such construction as will se- cure to the careful and peaceful traveller free and uninterrupted progress, if he occupy that part of the way assigned to him for his use by the statute. The objects of the statute are important, and they should by all reasonable means be accomplished. The whole public travel, so far as concerns the meet- ing and passing each other with ve- hicles, is guided and regulated by its provisions; and the rights, du- ties, and liabilities of every travel- ler distinctly and with exactness prescribed and determined. Not only are certain duties imposed, but certain rights are guaranteed to every traveller for securing the ob- jects in view. The act extends, however, in its operation only to the regulation of the conduct and rights of persons travelling with carriages, or other vehicles, at the time and place of meeting, and while passing each other. Under all other circum- stances, travellers are still left to their common-law rights and reme- dies, so far as it respects one an- other. It is the right of every one to travel on any part of a highway that may suit his taste or conveni- ence, not occupied by another, pro- vided that no one is meeting him with teams and carriages, having occasion or a desire to pass him. If he have such occasion, it is his duty to yield to such one, so having occa- sion, the half of the travelled track, in such season that he may pass without interruption or delay. And it is the right of each traveller, so meeting, to occupy any part of the track, on the right side of the way, that he may choose. Ordinarily, then, each has the right to occupy half of the width of the travelled way in passing, and is bound to yield the other half to the other traveller; and each, in meeting, is to turn seasonably to the right. By the terms 'seasonably turn, drive,' etc., is meant, we think, that the 1139 1 Thomp. Neg.] negligence in relation to the highway. even proper to drive to the left;^^ as where a driver, having occasion traveller shall turn to the right in such season that neither shall be retarded in his progress by reason of the other occupying his half of the way which the law has assigned to his use, when he may have oc- casion to use it in passing. In short, each has the undoubted right to one-half of the way, whenever he wishes to pass on it; and it is the duty of each, without delay, to yield such half to the other. By the stat- ute such are the rights and such the duties of each traveller in meeting and passing. But, as we have al- ready said, the statute goes no fur- ther than to prescribe their duties and regulate their rights in meeting and passing each other with car- riages and vehicles, and leaves their rights and liabilities in other partic- ulars unaltered, and to be regulated and determined by the principles of the common law. Ordinarily, if one traveller, in meeting another, be found upon the half of the way ap- pointed to him by the statute, trav- elling with orcMnary care and pru- dence, and he sustain an injury by a collision with the vehicle of an- other, who is upon that part of the way to which he has not the statu- tory right, the individual who has th'is sustained the injury may have redress by action against him who was thus on the part of the way to which the statute did not give him the right. The traveller who thus travels prudently and carefully upon the half of the way assigned to him will, ordinarily, pass at the haz- ard and risk of him who trenches upon his rights in the manner al- ready stated. Nor in such a case would damage arising from collis- ion, or other cause of like charac- ter, form the only ground of a right of action. Damage arising from the detention of the traveller would probably furnish an equally valid and substantial ground or cause of action. It is legal negligence in any one thus to occupy the half of the way appropriated by law to others having occasion to use it in trav- elling with teams and carriages, and he is chargeable for any injury flow- ing exclusively from that cause alone. The question of negligence under the statute is one of law, aris- ing upon the facts proved. Whether 1140 cases of injury which would be properly and legally attributable to mere accident or misfortune may arise under the statute, or what would constitute a case of mere misfortune, for which no one would be answerable, need not now be con- sidered or decided. If carelessness or negligence be shown on the part of him who may have sustained an injury, and who seeks redress, and which has in some measure, more or less, contributed to the injurious result, in such case it would seem unreasonable, and not in accordance with well-settled principles of law, to allow a recovery for the damage sustained. It would allow a party to profit by his own negligence or wrong. In order to entitle himself to redress for injuries sustained in passing others on highways, the traveller must himself be faultless; he must not be found invading the rights of others at the time, nor to have contributed to his own injury, in any degree, by reason of his own carelessness or negligence. Care- lessness on the part of the injured party, contributing to the injury, would forbid the legal conclusion that would otherwise result, of a right to redress for the injury sus- tained. What would be the true construction of the statute, or its proper application, as touching the case where a party is found upon the prohibited part of the highway, but is shown to be thereby unavoid- able accident, and another, in trav- elling and passing with ordinary care and prudence, and without fault on his part, sustains an in- jury in his team or vehicle, or suf- fers detriment by reason of delay occasioned by the fact that the way is obstructed, we need not stop to inquire or determine. But if a party, in travelling, voluntarily goes upon the prohibited side of the way, and from the size or character of his team or vehicle, or state of the road, should be unalDle to surrender, to such as he might meet, the por- tion of the way to which they were entitled, the fact that he could not yield the way might not, and prob- ably would not, furnish a legal ex- 559. ' Strouse v. 'Vi'^hittleEey, 41 Conn. THE LAW OF THE KOAD. [2d Ed. to stop on the left side of the road, turns his team in that direction for that purpose, — in which case he does not assume the obligation of exercising an unusual or the highest degree of care to avoid a collision with a vehicle which attempts to keep to the right in passing him;-' or where a driver, proceeding on the right side of the road, charge- able with contributory negligence in failing to turn to the left to avoid a runaway team approaching him from the opposite direction on the left, where such a course would have rendered a collision inevitable f* and whether the driver, in a particular case, was guilty of negligence in attempting to pass to the left, presents a question for a ]ury.^^ § 1287. Still Further as to Keeping to the Right.— But the mere fact that the ground to the right was rutty and frozen will not excuse him from turning to the right, in obedience to the requirements of a statute.^* And if he takes the left side of the road, he must use greater care to avoid collisions than if on his proper side.^^ There- fore, an action against a master for damages alleged to have arisen from a violation by his servant of such a statute can not be sustained, in the absence of allegations and proof of negligence; the penalty given by such a statute^^ was held personal to the servant.^^ The injunction of this statute, "seasonably to drive to the right," does not apply where one vehicle is passing along a street, into which another vehicle is turning from a cross-street;'" nor where travellers meet at the intersection of two streets.'^ And though a traveller may pass cuse, exonerating him from liabil- and seeic redress for the detention, ity for an injury sustained by one if damage result therefrom. But if, in passing who is in nowise in fault, in a prudent attempt to pass, he The wrong would consist in placing sustain injury, we see no reason to himself where he might be the oc- doubt that the law would give re- casion of the injury which has re- dress:" Brooks v. Hart, 14 N. H. suited,— that is, on the prohibited 309, 313. side of the way. It would be legal ^Peltier v. Bradley &c. Co., 67 fault in him to be found there, occu- Conn. 42; s. c. 32 L. R. A. 651; 34 pying that part of the way belong- Atl. Rep. 712. ing for the time to another as '^ Cadwell v. Arnheim, 81 Hun against him. His inability to leave (N. Y.) 39; s. c. 62 N. Y. St. Rep. the part of the way, voluntarily oc- 574; 30 N. Y. Supp. 573. cupied, would not form a valid ex- =° Randolph v. O'Riordon, 155 cuse, exonerating him from liabil- Mass. 331; s. c. 29 N. E. Rep. 583. ity for the injury sustained by an- ^"Earing v. Lansingh, 7 Wend. other, by reason of such occupancy. (N. Y.) 185. But the traveller whose part of the " Pluckwell v. Wilson, 5 Car. & way is trenched upon by another P. 375. can not for that reason carelessly ^'Rev. Stat. Mass., chap. 51. and imprudently rush upon the =» Goodhue v. Dix, 2 Gray (Mass.) party, or his team or vehicle, and 181. if he sustain an injury, recover =°Lovejoy v. Dolan, 10 Cush. damages therefor. He may proba- (Mass.) 495; Smith v. Gardner, 11 bly attempt to pass, if such attempt Gray (Mass.) 418. would be reasonably safe and pru- =' Garrigan v. Berry, 12 Allen dent. If otherwise, he must delay, (JIass.) 84. 1141 1 Thomp. Neg. ] negligence in relation to the highway. on the left side of the road, or across it, for the purpose of turning up to a house, store, or other object on that side of the road, yet in doing so he must not interrupt or obstruct a man lawfully passing on that side which would be in a direction in a degree contrary to his; if he does, it has been held that he acts at his peril, and must be answerable for the consequences of such violation of duty,^^ — which seems to mean that, when a traveller finds it necessary to turn on to the left side of the road, he must give way to a traveller meeting him on that side. ISTor does such a statute exact that a traveller shall at all times occupy the right side of the road. He is only required to turn seasonably to the right when meeting another traveller."' Moreover, the traveller is not bound to drive to the extreme right ; the rule is to receive a sen- sible construction; it will be sufficient if he leaves sufficient room for the other traveller to pass safely."* Neither does the fact that the de- fendant is thus violating the law of the road entitle the plaintiff to recover damages of him, if the plaintiff could have avoided the col- lision by the exercise of ordinary care ; he can not negligently or wan- tonly run into the defendant, and then make him pay damages for the resulting harm, simply because the defendant was violating the law."' § 1288. Whether Horseback Riders Bound to Observe this "Law of the Road." — In England, this rule of the road has been held to ap- ply to saddle-horses as well as to carriages ; so that, if a carriage and horseman are to pass, the carriage must keep its proper side, and so must the horse. If the driver of a carriage is on his proper side, and sees a horse coming furiously on its wrong side of the road, it is the duty of the driver of the carriage to give way, and avoid an accident, although in so doing he goes a little on what would otherwise be con- sidered the wrong side of the road."® But it has been ruled in this country that there is no law of the road requiring a horseman, when meeting a vehicle, to turn to the right ; he must govern himself, in this respect, by his notions of prudence under the circumstances."'' § 1289. Cases where this "Law of the Road" does Not Apply. — There is no duty on the part of a driver of a vehicle, passing another from lehindj to observe the rule of passing on the right-hand side, =' Palmer v. Barker, 11 Me. 338. =' Parker v. Adams, 12 Mete. ^= Parker v. Adams, 12 Mete. (Mass.) 415; Kennard v. Burton, (Mass.) 415; s. c. 1 Thomp. Neg., 25 Me. 39 (overruling, in part, Fales 1st ed., p. 376; Daniels v. Clegg, 28 v. Dearborn, 1 Pick. (Mass.) 345); Mich. 32; Palmer v. Barker, 11 Me. Daniels v. Clegg, 28 Mich. 32. 338; Wordsworth v. Willan, 5 Esp. ™ Turley v. Thomas, 8 Car. & P. 273; Brooks v. Hart, 14 N. H. 307. 103, per Coleridge, J. '♦Wordsworth v. Willan, 5 Esp. "Dudley v. Bolles, 24 Wend. (N. 273. Y.) 465. 1142 THE LAW OF THE KOAD. [2d Ed. either by the common or the statute law.'' ISTor is there any such duty where a vehicle meets a foot passenger.^^ Statutes of the kind con- sidered in the previous section, have no application where both vehicles are going in the same direction. Here a traveller may use the middle or either side of the road, at his pleasure, and without being bound to turn aside for another travelling in the same direction, provided there be convenient room to pass on the one hand or the other.*" Travelling in the night-time, on a stage-road, is necessarily hazardous, and where two stages are travelling in the same direction, and one of them attempts to pass the other, and in so doing collides with it, it will be no justification that the forward stage is not on its own side of the road.*^ Nor does this so-called law of the road regulate the man- ner in which persons shall drive, when they meet at the junction of two streets, nor give a right of action for damages sustained through a collision happening at such a place ; nor does a statute, enjoining the duty of keeping to the right, apply in such a case ;*^ and where there is no applicatory statute, it is held that the driver has a right to act according to circumstances.*' Nor has such a statute any application to a case where two teams are left unhitched and unattended, facing each other, in a street, and approach each other and collide.** Nor can negligence be imputed to the driver of a team which is running aivay, because he reins them from the right to the left side of the street, unless, under the circumstances, such conduct would be negli- gence on his part;*^ nor, where the right side of the road or street appears to be impassable ; nor is he conclusively chargeable with negli- gence for driving to the left of the middle of the street while meeting another team, if there is sufficient room for the other driver to pass him by exercising ordinary care;*' nor is he required to go to the extreme right of the travelled road, on paeeting another conveyance, unless prudence requires him to do so;*^ nor will he be liable for a collision caused by his not turning to the right, if he is in no actual fault either from not knowing he is on the left or from not knowing that he is approaching a vehicle.*' Another court has held that a person driving on the wrong side of a highway, especially on a dark =' Clifford V. Tyman, 61 N. H. 508. *= Garrigan v. Berry, 12 Allen '"Cotterill v. Starkey, 8 Car. & P. (Mass.) 84. 691. "Broult V. Hanson, 158 Mass. 17; "Bolton V. Colder, 1 Watts (Pa.) s. c. 32 N. E. Rep. 900. 360. To the same effect are Foster " Benoit v. Troy &c. R. Co., 154 V. Goddard, 40 Me. 64, and Mayhew N. Y. 223; s. c. 48 N. E. Rep. 524; V. Boyce, 1 Stark. 423. rev'g 9 App. Div. 622. "Mayhew v. Boyce, supra. "Quinn v. O'Keeffe, 9 App. Div. "Norris v. Saxton, 158 Mass. 46; 68; s. c. 41 N. Y. Supp. 116. s c. 32 N. B. Rep. 954; Lovejoy v. " Quinn v. O'Keeffe, suvra. Dolan, 10 Cush. (Mass.) 495. "Lyons v. Child, 61 N. H. 72. 114.9 1 Thomp. Neg.] kegligence in relation to the highway. night, must exercise moix than ordinary care to look out for and avoid vehicles proceeding in the opposite direction, and is liable for damages arising from his inability to get out of the way of one approaching him in the proper position, on the right side of the road;*' and clearly, to drive at night at the rate of eight or nine miles an hour on the side of the road prohibited by the statute, will make the driver liable for damages arising from a collision with a carriage coming from the opposite direction. ^^ § 1290. Collisions with Teams Approaching from Behind. — ^As al- ready seen,^^ the "law of the road" does not apply in the case of teams going in the same direction. Collisions sometimes take place where both teams are going in the same direction, and one endeavors to pass the other. A jury may find negligence from the fact that the driver of a team endeavored to pass another team going in the same direction, where the roadway was so narrow as to render the act dangerous. '^^ The degree of care to be exercised by the drivers of teams, following each other, has been stated with care and at length by a federal judge, — with the general conclusion that where one team elects to turn out of the travelled way, the driver is under no obligation to give notice to those behind him, and that the rule of reasonable care, ap- plicable to the drivers of all such teams, ex'acts a greater degree of attention from the driver of the team behind the one turning out, than from the driver of the team that turns out.^^ More or less doubt at- tends the foregoing exposition of the law. The relative degree of care of two travellers can not be nicely balanced and weighed ; but each is re- quired to act reasonably to the end of avoiding injury to the other. Circumstances may require the driver of the hindmost vehicle to stop and give warning to the driver of the vehicle ahead of him, of his in- tention to pass, so as to avoid a collision, and to refrain from such attempt until he reaches a place where he can pass safely.*** If the driver of the rear wagon drives so close behind the one in front of him as to make an accident unavoidable, he can not defend an action for damages on the ground that it was unavoidable.^' On the other hand, "White V Gnaedlnger, Rap. Jud. "Aw*e, § 1289. Quebec, 7 B. R. 156. =' St. Louis Bridge Co. v. Schraub, ™Angell V. Lewis, 20 R. I. 391; 29 111. App. 549. s. c. 46 Cent. L. J. 287; 39 Atl. Rep. '^'Bierbach v. Goodyear Rubber 521. See also Brooks v. Hart, 14 Co., 15 Fed. Rep. 490; s. c. 14 Fed. N. H. 311; Chaplin v. Hawes, 3 Car. Rep. 826. & P. 554; Cruden v. Fentham, 2 Esp. "* Young v. Cowden, 98 Tenn. 577; 685; Wilson v. Rockland Man. Co., s. c. 40 S. W. Rep. 1088. 2 Harr. (Del.> 70; Fales v. Dear- '''Ewald v. American News Co., 18 born, 1 Pick. (Mass.) 345; Kennard Misc. (N. Y.) 468; s. c. 41 N. Y. V. Burton, 25 Me. 39; s. c. 43 Am. Supp. 881. Dec. 249. 1144 THE LAW OF THE KOAD. [2d Ed. when the driver of the forward vehicle is apprised of the intention of the driver of the vehicle behind him to pass him, he owes to the latter the duty of exercising reasonable care to avoid injuring him while making the attempt. °° He may not be required to change his course to avoid a collision with the vehicle behind him; but he is bound to use such reasonable precautions as a prudent man, mindful of the rights of others, would use under the circumstances." If he has reason to believe that a team is immediately behind him, or at his side, the obligation to use reasonable care may require him to refrain from an attempt to drive across the road from one side to the other in front of such other team.^^ § 1291. Duty where Teams Approach Each Other in the Dark. — Where the traveller was driving fast in the night-time, and on the wrong side of the road, it was held no excuse for him that he did not have time, after discovering the approaching carriage, to turn out.^^ The driver of a carriage on a dark night, hearing a buggy coming at full speed toward him, was not negligent in taking the side of the road belonging to him, although had he remained where he was injury would have been avoided. "^ § 1292. Construction of Statutes Enjoining the Duty of Keeping to the Right. — The Michigan statute, adopted from Massachusetts,'^ enacts that the traveller shall "seasonably drive his carriage or other vehicle to the right of the middle of the travelled part of such bridge or road, so that the respective carriages or other vehicles aforesaid may pass each other without interference." The "travelled part" of the road was formerly, in Massachusetts, held to mean that part which is wrought for travelling, and was not confined simply to the most travelled wheel-track, or to any track which might happen to be made in the road by the passing of vehicles;'^ and the Supreme Court of Michigan, adopting with the statute the construction which had been previously put upon it by the JIassachusetts court, adheres to the same view,"^ though the Massachusetts court holds that the statute imposes °° Brennan v. Richardson, 38 App. ■"> Simmonson v. Stellenmerf, 1 Ed. Div. 463; s. c. 56 N. Y. Supp. 428. monds's Sel. Gas. 194. "' Crabtree v. Otterson, 22 App. " Flower v. Witkovsky, 69 Mich. Div. 393; s. c. 47 N. Y. Supp. 977. 371; s. c. 37 N. W. Rep. 364; 14 West. "'Rand v. Syms, 162 Mass. 163; Rep. 44. s. c. 38 N. E. Rep. 196. Duty of "Mass. Stat. 1820, chap. 65; Rev. driver of rear wagon to turn to the Stat. Mass., chap. 51. right to avoid an accident, notwith- "- Clark v. The Commonwealth, 4 standing the existence of a statute Pick. (Mass.) 125 (reaflarmed in which requires him to pass to the Jaquith v. Richardson, 8 Mete, left: Young v. Cowden. 98 Tenn. (Mass.) 213). 577; s. c. 40 S. W. Rep. 1088. »= Daniels v. Clegg, 28 Mich. 32, 44. 1145 1 Thomp. Neg.J negligence in relation to the highway. an obligation to turn to the right of the middle,— not of the wrought part of the road, but of the part travelled by wheels."* A statute of Xew York, requiring travellers 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, although the whole of the smooth or most travelled part may be on one side of that eenter.*^ But this construction of the statute has been held inapplicable in the winter season, when the worked part of the road is obscured by snow, so that the traveller may not know where it really lies ; here it will be sufficient for the traveller to turn to the right of the center of the beaten or travelled track, without reference to the worked part."" An early statute of Massachusetts, of like im- port, referring to the case of persons meeting "on any bridge, turn- pike, or other road," has been held to apply to travellers meeting in the streets of Boston,"' and to a passageway upon a wharf in New Bedford."* On a principle already explained,"" the failure of a trav- eller to turn to the right of the travelled part of the highway, which the statute makes it one's duty to do on meeting another, so that the latter may "pass with his vehicle without interference," does not make the former liable for a collision, if the latter could have avoided it by the exercise of ordinary care.'^" The Connecticut statute'^ ap- plies only to drivers of vehicles carrying passengers, and not to the driver of a team carrying goods.'^ The Iowa statute'^ requires a driver to turn to the right on approaching a bicycle, and makes his failure so to do prima facie evidence of negligence. ''* But the obliga- tion of keeping to the right imposed by the New York statute'^ does not require a carriage to turn to the right on meeting a person on fooV^ «The Commonwealth v. Allen, 11 '"Ante, §§ 238, 241; post, §§ 1325, Mete. (Mass.) 403. 1326. "' Earing v. Lansingh, 7 Wend. (N. "Brember v. Jones, 67 N. H. 374; Y.) 185. s. c. 26 L. R. A. 408; 30 Atl. Rep. =' Smith V. Dygert, 12 Barh. (N. 411. Y.) 613; Jaquith v. Richardson, 8 "Gen. Stats. Conn., §§ 2689, 2690. Mete. (Mass.) 213. "Peltier v. Bradley &e. Co., 67 "Fales V. Dearborn, 1 Piek. Conn. 42; s. e. 32 L. R. A. 651; 34 (Mass.) 345. Atl. Rep. 712. "' The Commonwealth v. Gam- " Iowa Code 1873, § 1000. mons, 23 Pick. (Mass.) 201. The "Cook v. Forgarty, 103 Iowa 500; mere fact of driving on the wrong s. c. 72 N. Y. 677; 39 L. R. A. 488. side of the street will not create 11a- '= 1 N. Y. Rev. St., p. 716, § 157. bility for running over and killing " Savage v. Gerstner, 36 App. Div. a boy, if the accident would not 220; s. c. 31 Chic. Leg. News 220; have occurred but for the boy's con- 5 Am. Neg. Rep. 237. tributory negligence: Lind v. Beck, 37 111. App. 430. 1146 THE LAW OF THE EOAD. [2d Ed. Article II. The Law Applicable to Highways in Various Situations. Section 1294. Liability for injuries from leaving horses unhitclied and unattended. 1295. Further of leaving horses un- hitched and unattended. 1296. Liability for injuries from teams standing upon the pub- lic streets. 1297. Liability for damages arising from collisions with runaway horses. 1298. Injuries to pedestrians from driving cattle in the high- way. 1299. Liability for injuries caused by fast driving and racing. 1300. Relative rights of foot pas- sengers and teamsters. 1301. Vehicles running over foot passengers at crossings. 1302. Injuries by vehicles to persons at work on the public street. 1303. Injuries by vehicles to other foot passengers on public streets. 1304. Further of injuries by vehi- cles to foot passengers on the public street. 1305. Liability for injuries arising from the breaking of vehi- cles, harness, etc. § 1294. Liability for Injuries from Leaving Horses Unhitched and Unattended.*^ — There is a general concurrence of judicial opinion to the effect that leaving a horse untied and unattached in a public street of a cit}', is at least prima facie evidence of negligence, which takes the question of negligence to the Jury, and casts the burden of showing that the act was consistent with reasonable care upon the owner or custodian of the animal." It has been so held, although the a This section is cited in | 851. s. c. 4 S. E. Rep. 724; Phillips v. ■ "Henry v. Klopfer, 147 Pa. St. De Wald, 79 Ga. 732; s. c. 7 S. E. 178; s. c. 22 Pitts. L. J. (N. S.) 385; Rep. 151; Wagner v. Goldsmith, 78 29 W. N. G. 331; 23 Atl. Rep. 337, Ind. 517; Marsland v. Murray, 148 338; Moulton v. Aldrich, 28 Kan. Mass. 91; s. c. 18 N. E. Rep. 680; 300; Bowen v. Flanagan, 84 Va. 313; Broult v. Hanson, 158 Mass. 17; 1147 Section 1306. Driving or using highway in violation of statute or ordi- nance. 1307. Fast driving and racing in violation of municipal ordi- nance. 1308. Frightening the horses of other travellers. 1309. Driving vicious or unbroken horses. 1310. Injuries by fire insurance pa- trols, street railway repair wagons, etc. 1311. Injuries by the "ice-man." 1312. Injuries from the use of steam traction engines on the high- way. 1313. Negligence in unloading over a sidewalk. 1314. Negligence in leading horses in the street. 1315. Evidence of negligence in these cases. 1316. Evidence which did not dis- close negligence. 1317. Questions of the admissibility of evidence. 1318. Questions for the jury. 1 Tliomp. Neg.] negligence in relation to the highway. horse was ordinarily gentle, and was attached to a baggage wagon, and although its custodian left it to carry a trunk to a house, but thirty feet away, during whose absence it took fright and ran away, inflicting the injury complained of;''* where one riding on a railroad velocipede, upon approaching a highway crossing checked his speed to two miles an hour, and was there injured by being run over by a mule and cart, which had been left unattended by the servant of the defendant;'" where an amiable and roadwise horse was left unhitched and unat- tended on a business street .of a city, by its owner, although he stood watching him but five or six feet away at the time when he took fright and ran away;*" where the driver of an ice wagon left his wagon and mules unattended to go into a store for a purpose of his own, and a child got under their feet and was killed;*^ where the defendant, driv- ing a team attached to a heavy wagon, hitched the horses by the lines to a rubber block in the public street, and left them unattended, and they escaped and ran away.*^ § 1295. Further of Leaving Horses Unhitched and Unattended. — But it is not negligence per se, or negligence as matter of law; and, therefore, it is not error to refuse to charge the jury in such a case, that "upon the facts found, the defendants were guilty of negligence in leaving their horses unhitched, and unattended in the manner de- scribed."** Some courts seem to go even further than this, refusing to hold that the mere fact, standing alone, that a horse is left un- hitched in the street of a city, is prima facie evidence of negligence; but requiring something more to be shown, — as that the horse was of a restive character, or of vicious propensities,** or that no one was left to observe him, or other like circumstances, and then requiring the s. c. 32 N. E. Rep. 900; Higgins v. knock a young child from the Wilmington City R. Co., 1 Marv. usual foot-path under the wheels (Del.) 352; s. c. 41 Atl. Rep. 86; of another wagon, causing its death, Pierce v. Conners, 20 Colo. 178; the owner will be liable: Pierce v. Wagner v. New York Condensed Conners, 20 Colo. 178; s. c. 37 Pac. Milk Co., 21 Misc. 62; Jones v. Belt, Rep. 721. 8 Houst. (Del.) 562. " Bowen v. Flanagan, 84 Va. 313; '" Moulton v. Aldrich, 28 Kan. 300. s. c. 4 S. E. Rep. 724. But the better opinion is that a ™ Phillips v. De Wald, 79 Ga. 732; driver is not, as matter of law, s. c. 7 S. E. Rep. 151. guilty of negligence in leaving a '^Knupfle v. Knickerbocker Ice gentle horse unfastened in the Co., 23 Hun (N. Y.) 159; s. c. re- street while he is attending to other versed on other grounds, 84 N. Y. business in the immediate vicinity, 488. where he could look after him : Pot- '■' Wagner v. Goldsmith, 78 Ind. ter &c. Co. V. New York &c. R. Co., 517. 48 N. Y. Supp. 446; s. c. 22 Misc. 10. »" Fiske v. Forsyth Dyeing &c. Co., It has been held to be negligence to 57 Conn. 118; s. c. 17 Atl. Rep. 356. leave a team of high-spirited horses " Albert v. Bleecker Street R. Co., unhitched and uncared for in the 2 Daly (N. Y.) 389. street; so that if they run away and 1148 THE LAV/ OF THE EOAD. [2d Ed. question of negligence to be left to the jury.^^ It has been held that if the horse is left unhitched, but in the care of a proper person, — and it seems that a woman is such, — and it breaks away in consequence of being frightened by a passing show/^ or by falling icicles,*^ the plaintiff injured by the horse in running away ought not to recover.^^ Another court has gone to the extent of holding that the slow move- ment of a heavy team, along a street, with its driver temporarily ab- sent, is not in itself prima facie evidence of negligence.^^ It was so held, where a servant of the plaintiff was accustomed to leave his horse unhitched and unattended on the public street, while delivering par- cels at the private houses of customers. At least this act was not imputed to the plaintiff as contributory negligence so as to bar a re- covery, where the horse took fright and got upon a railway crossing, and was there struck by a moving train.'"' Where a horse is allowed to stand in the street unhitched and unguarded in disregard of the prohibition of a city ordinance, the owner will be liable to one sustain- ing damages therefrom, without any speculation upon the question of negligence ; for the act is negligence per se.^^ § 1296. Liability for Injuries from Teams Standing upon the Pub- lic Streets."^ — The public streets are primarily intended for passage, and any proprietor who causes teams to stand upon them in such num- " Griggs V. Fleckenstein, 14 Minn, standing on the left-hand side of the 81; see also Streett v. Laumier, 34 street. Here, it was held not proper Mo. 469. to charge the jury, that if the de- ™ Goodman v. Taylor, 5 Car. & P. fendant's team, passing along unat- 410. tended, came in contact with the " Bigelow V. Reed, 51 Me. 325. plaintiff's team, which was left '^ Ihid. standing at the side of the street, ™ Southworth v. Old Colony &c. R. on the left-hand of the defendant's Co., 105 Mass. 342; reaffirmed in team as it approached, that would Broult V. Hanson, 158 Mass. 17. be prima facie evidence of the de- "" Southworth v. Old Colony &c. fendant's negligence; and conse- R. Co., 105 Mass. 342. Compare quently that, in such a case, the bur- Davis V. Dudley, 4 Allen (Mass.) den would be on the defendants to 557, where the fact that the plaint- satisfy the jury that they were not iff's horse escaped from its driver negligent. The burden of proof, in and was running at large, was, un- the view of the court, remained on explained, held evidence of contrib- the plaintiff, and if the evidence was utory negligence. See further, of equal weight, the plaintiff would Foog V. Nahant, 98 Mass. 578; Titus fail: Broult v. Hanson, 158 Mass. 17; V. North Bridge, 97 Mass. 258, 265. s. c. 32 N. E. Rep. 900. The more interesting question "Jones v. Belt, 8 Houst. (Del.) arises, in a jurisdiction where the 562; 32 Atl. Rep. 723; ante, § 10. plaintiff is required to negative his "^ This section has no reference to own contributory negligence, in a the question of negligence in leav- case where both the teams of the ing horses or teams unhitched, or plaintiff and the defendant were left unguarded, or unattended upon the unhitched, in a public street, and public street, — as to which see ante, the plaintiff's team ran upon that of § 1262. the defendant, while the latter was U49 1 Tliomp. Neg.] negligence in relation to the highway. bers, or for such lengths of time, as substantially to interrupt the public easement therein, is the author of a nuisance.** But it can not be affirmed that it is a nuisance merely to allow a team to stand upon the public street of a city or town, since otherwise every one using a team or Tehicle therein would be obliged to keep it in constant motion, which would be absurd. To allow it to' stand, then, in a proper posi- tion and for a reasonable length of time, is not unlawful per se; but it may be left standing, in such a manner, or under such circumstances, as will afford evidence of negligence. It was so held, where a buggy was left standing on an angle to the beaten track, and so near that, by backing one foot, it would be in the way of passing vehicles : this was contributory negligence barring the owner from a recovery of damages from one who, in passing, ran against his buggy, breaking it, — or at least a jtiry was authorized so to find."* On the other hand, no presumption of negligence arises from the failure of one driving along the beaten track, to turn out of it in avoiding a collision with a buggy so hitched. '° On the theory that a violation of law, at the time of the accident, by one connected with it, is evidence of his negligence, but not conclusive,"" — it has been held that the mere fact that the vehicle of the plaintiff, at the time of being run over by that of the de- fendant, is standing on a street, in a position prohibited by a muni- cipal ordinance, does not preclude the plaintiff from recovering dam- ages for the injury; and that the court rightfully refuses to instruct the jury, that the plaintiff can not recover if at the time of the acci- dent, he was violating the ordinance, and. so doing an tmlawful act ; but that if the fact of the vehicle so standing directly contributed to the accident, in the sense of being a proximate cause of it, there can be no recovery."' It has been held that, to allow a broken-down wagon to remain on a street, clear of the track of a street railway, for nearly two hours, is not negligence per se which will support an action by a person striking against it while passing in a street car. Such wagon does not become a nuisance or obstruction to the street until it has been allowed to remain an unreasonable time.^^ '"Ante, § 1262. "Newcomb v. Boston Prot. Dept, "Joslin V. Le Baron, 44 Mich. 160; 146 Mass. 596; s. c. 16 N. E. Rep. Le Baron v. Joslin, 41 Mich. 313,— 555; 6 N. Bng. Rep. 282; learned the same case on a former appeal, opinion by Knowlton, J. It is per- " Joslin v. Le Baron, 44 Mich. 160. ceived that the real theory of the "^ Hanlon v. South Boston &c. R. decision is a sound one, that contrib- Co., 129 Mass. 310; Hall v. Ripley, utory negligence is not predicated 119 Mass. 135; Damon v. Scituate, upon the doing of a collateral un- 119 Mass. 66. It ought not to es- lawful act: Ante, § 249. cape attention that the rule in "Howden v. Lake Simcoe Ice Co., most jurisdictions is, that violations 21 Ont. App. 414. Liability of the of law are negligence per se: Ante, owner of a push-cart leaving it pro- § 10. trading over a curbing, where a 1150 THE LAW OF THE KOAD. [2d Ed- § 1297. Liability for Damages Arising from Collisions with Run- away Horses. — Horses which are roadwise, and fit to be driven on the street or highway, and which are properly driven and cared for, do not, as a general rule, escape from their drivers or custodians and run away. Prom this fact, the conclusion is fairly deducible that the mere fact, without more, that a horse or a team of horses, while un- attended on the street or highway, does damage, constitutes, under the rule of res ipsa loquitur, prima facie evidence of negligence, to charge the owner, driver or custodian, in the absence of an explanation on his part satisfactory to the jury.*' Opposed to this conclusion, are decisions to the effect that the mere fact, standing alone, that a horse, or a horse attached to a vehicle, runs away on the public street or high- way, doing damage, does not make out a prima facie case of negligence on the part of its owner, driver or custodian, but that the plaintiff must go beyond this and prove, by other evidence, 'that the horse es- caped in consequence of such negligence.^"" The theory of these cases is that of a leading case,^"^ that where the evidence is as consist- ent T^ith no negligence as with negligence, it leaves the controversy equally balanced, and proves nothing. But it is submitted that, in these cases, something more is involved, namely, which party is to produce the proof of the circumstances attending the accident; and clearly the burden of producing such proof ought to be on the owner or custodian of the animal, whose general duty it is to care for it, so that it does not injure others. The operation of the rule first above stated, is to prevent the court from directing a nonsuit, and requiring it to submit the question whether or not there was negligence in suf- fering the horse to be loose on the street, to the decision of the jury.^"* third person drives against it: Sny- Co., 3 Ind. App. 573; 30 N. E. Rep. der V. Witt, 99 Tenn. 618; s. c. 42 200. S. W. Rep. 441. '"Cotton v. Wood, 8 C. B. (N. S.) "Hummell v. Wester, Bright. 568; s. c. 1 Thomp. Neg., 1st ed., p. (Pa.) 133; McMahon v. Kelly, 30 364. N. Y. St. Rep. 915; 9 N. Y. Supp. "' Strup v. Edens, 22 Wis. 432. 544; Button v. Frink, 51 Conn. 342; In linger v. Forty-second Street R. Illidge v. Goodwin, 5 Car. & P. 190; Co., 51 N. Y. 497, it is admitted by Strup V. Edens, 22 Wis. 432; North the court that the fact that the Chicago Street R. Co. v. Louis, 35 horses were loose on the street was 111. App. 477; s. c. reversed on other evidence of negligence; but because grounds, 138 111. 9; 27 N. E. Rep. two witnesses had explained how 451. they became loose, and because '™ Gottwald V. Bernheimer, 6 Daly there was nothing to cast suspicion (N. Y.) 212; Gray v. Tompkins, 40 upon their testimony, the court held N. Y. St. Rep. 546; s. c. 15 N. Y. that a nonsuit ought to have been Supp. 953; Quinlan v. Sixth Avenue granted at the close of the whole R. Co., 4 Daly (N. Y.) 487; Furlong evidence. It is submitted that it V. Broadway &c. R. Co., not report- was for the jury, and not for the ed, but cited in 6 Daly (N. Y.) 214. court to say whether there was any- Compare Brettman v. Braun, 37 111. thing to cast suspicion upon their App. 17; Grimes v. Louisville &c. R. testimony. I have no doubt that their story was manufactured. 1151 1 Thomp. Neg.] negligence in relation to the highway. On the other hand, it must be conceded that the mere fact that a horse gets loose and runs away, upon the public street or highway, is not conclusive evidence of negligence on the part of its owner or cus- todian;^"^ since, upon common experience, such catastrophes are often explainable on grounds consistent with the exercise of reason- able care. The fact may be due to a trespasser, or to some other in- tervening cause, for which the owner or custodian of the animal is not responsible. It is, therefore, error in such a case to give an instruc- tion which has the effect of taking from the jury the question of negli- gence or no negligence.^"* Under either theory, if the driver or cus- todian of the horse loses control of it, in consequence of his own prior fault, he can not excuse himself. If, for example, the fact of the horse escaping his control was the result of his racing or driving at an un- due rate of speed, upon the public street or highway, that fact will be evidence of negligence, and the case may be one for exemplary dam- ages. Where the evidence, taken in the concrete, exhibits the cir- cumstances under which the horse or the team escaped and ran away, then such evidence may, on the one hand, taken in the aggregate, afford evidence of negligence on the part of the driver or custodian, or it may, on the other hand, afford evidence rebutting any imputation of negligence.^"* "' Gottwald v. Bernheimer, 6 Daly (N. Y.) 212; Quinlan v. Sixth Ave- nue R. Co., 4 Daly (N. Y.) 487; Fur- long V. Broadway &c. R. Co. (MS.); citing 6 Daly (N. Y.) 214; Griggs v. Fleckensteln, 14 Minn. 81; Streett v. Laumier, 34 Mo. 469. Compare Rex V. Timmins, 7 Car. & P. 499, which was an indictment for man- slaughter occasioned by reckless driving. "* Button V. Frink, 51 Conn. 342. It seems to the writer, that the court misapplied this doctrine in holding it error to give the following in- struction: "If the defendant ran into the plaintiff's carriage, as stated in the complaint, he is not absolved from blame, by the mere fact that his horse was running away upon the public highway, as claimed by the defendant. That fact is a circumstance, in this case, from which negligence on his part might be inferred, in the absence of explanatory testimony showing that he was guilty of no negligence or folly." The Supreme Court of Con- necticut construe this language as admonishing the jury that the mere fact of the horses running away, is 1152 a fact from which negligence should be inferred. But it is perfectly plain that it bears no such construc- tion. '"= Kennedy v. Way, Bright. (Pa.) 186. ""As where the defendant, who was not the driver of the team, but who was riding in the sleigh with the driver, by yelling, whoop- ing, etc., frightened the horses, and caused them to run away, colliding with a cutter in which the plaintiff was. Here, it was held that the evi- dence sustained a verdict for the plaintiff: Sieber v. Amunson, 78 Wis. 679; s. c. 47 N. W. 1126. Or where the owner of a horse, ordi- narily quiet and gentle, is fright- ened by the fall of a plank from the top of a house lu process of repair, and, considering the circumstances, the driver conducted himself with ordinary care: Quebec v. Picard, Rap. Jud. Quebec, 14 C. S. 94 (opin- ion In French). Or where the owner of a dangerous and unmanageable horse, knowing his characteristics, orders his servant to drive it, and the horse becomes unmanageable and runs into another vehicle, — in THE LAW OF THE KOAD. [2d Ed. § 1298. Injuries to Pedestrians from Driving Cattle in the High- way. ^^'^ — In a State where the common law of England prevails, un- der which cattle are not permitted to run at large, it was said : "If cattle are negligently permitted to stray into the highway, and they run against a traveller and injure him, the owner, or the one having the care and custody of them at the time of the escape, will be liable. But if cattle, which are being driven in the highway, run against a traveller in consequence of careless and improper driving, the driver will be liable ; and if he is not the owner, nor the agent or servant of the owner, an action against the latter can not be maintained. In such a case the question is not who was the owner, but who was the driver."^"* Evidence of negligence, taking the question to the jury, has been discovered in the act of driving a wild bull, two and a half years old, with other cattle, along a public street, secured in no other way than having his head tied to one of his feet, by means of a ring in his nose. Nor is this presumption of negligence rebutted by the fact that the bull had never previously attacked or injured any one; but that is no more than an evidentiary circumstance, to be considered by the jury in solving the question of the negligence of the defendant. ISTor will the fact that the defendant had no knowledge of any vicious habit on the part of the bull, take the question of negligence from the jury. On the other hand, where the bull turned out of his way and injured a woman, who was standing on a bridge while it was passing, it was not conclusive evidence of contributory negligence on her part that she remained on the bridge and did not leave it when she saw the drove of cattle coming, but the question of her negligence was for the jury, upon all the circumstances of the case.^°^ § 1299. Liability for Injuries Caused by Fast Driving and Rac- ing. — It may be stated here that, as in the case of railway trains,^^" no rate of speed is negligence per se. In other words, the law does not undertake to define the rate of speed at which a person may rightfully drive upon a public street or highway, but more wisely leaves it to the decision of juries, under the circumstances of each particular case. Eoundly stated, it is not, therefore, negligence per se, or negligence as which case the owner of the horse Otherwise when the driver is at will be liable: Short v. Bohle, 64 fault and the person injured was Mo. App. 242; s. c. 2 Mo. App. Rep. not negligent. 1103. It is not a sound view that "'Compare, on this subject, ante, one owning or having control of a § 850. runaway horse is not liable to one "'Smith v. French, 83 Me. 108; struck and knocked down by it, if s. c. 21 Atl. Rep. 739; opinion by the driver was without fault at the Walton, J. time when the runaway com- '™ Barnum v. Terpenning, 75 Mich. menced: Robinson v. Simpson, 8 557; s. c. 42 N. W. Rep. 967. Houst. (Del.) 398; 32 Atl. Rep. 287. "° See the next volume. VOL. 1 TH05IP. XEG.— 73 llOd 1 Thomp. Neg.J negligence in relation to the highway. matter of law, to drive rapidly along a public highway, or through a city street, in the absence of a statute or municipal by-law, regulating the rate of speed at which horses or vehicles may be driven ;^^^ and this will always be so where the evidence as to the speed at which the defendant was driving is conflicting .^'^^ Somewhat opposed to this, but in a case where there was an ordinance prohibiting a rate of speed above six miles an hour, it was said by Campbell, C. J. : "Two per- sons racing make a plain and seriousi danger to every other person driving along the said highway, and one which it is often impossible to avoid. It is itself an act of such negligence as to make the racing parties responsible for a collision caused by it." This was said in criticism of a charge which was deemed to lean too strongly in favor of the defendant.^ ^^ And, in gisneral, driving at an improper and reckless rate of speed, along the street of a populous city, resulting in running over a foot passenger, or in a collision with another vehicle, is a circumstance from which a jury are at liberty to find culpable negligence.^^* § 1300. Relative Rights of Foot Passengers and Teamsters. — Foot passengers and those driving vehicles have equal rights in the public streets, and both are required to exercise that degree of care and pru- dence which the case demands.^ ^^ A footman or horseman has the right of way, as well as the driver of a vehicle. The former can not compel the latter to leave the smooth and beaten track of the road, if there is sufficient room to pass on either side. Where a road is narrow, and there is difficulty in passing, if the footman or horseman can turn out without danger to himself or beast, and the vehicle can not be turned out without incurring danger, it is the duty of the footman or horseman to give way. This doctrine applies to the case of a horse- man meeting a buggy drawn by one horse and loaded with three per- "^Carterv. Chambers, 79 Ala. 223; (Del.) 398; Potter v. Moran, 61 Crocker v. Knickerbocker Ice Co., 92 Mich. 60. View that it is not negli- N. Y. 652; Denman v. Johnston, 85 gence, as matter of law, to run over Mich. 387; s. c. 48 N. W. Rep. 565; a foot passenger in a narrow high- Keck V. Sandford, 51 N. Y. St. Rep. way on a dark night while driving 150; s. c. 22 N. Y. Supp. 78. at a "swinging trot:" Eby v. Shenk '"Schwartz v. Brahm, 130 Pa. St. (Pa.), 11 Lane. L. Rev. 337. 411; s. c. 18 Atl. Rep. 643. "'Barker v. Savage, 45 N. Y. 191; ™ Potter V. Moran, 61 Mich. 60; Brooks v. Schwerin, 54 N. Y. 343; s. c. 27 N. W. Rep. 854. Belton v. Baxter, 54 N. Y. 245; My- "* Stringer v. Frost, 116 Ind. 477; ers v. Dixon, 3 Jones & Sp. (N. Y.) s. c. 2 L. R. A. 614; 19 N. E. Rep. 390; Stringer v. Frost, 116 Ind. 477; 331. Driving at rapid speed as negli- s. c. 19 N. E. Rep. 331; 2 L. R. A. gence, — see Northridge v. Atlantic 614; Moebus v. Herrmann, 108 N. Y. Ave. R. Co., 15 Misc. (N. Y.) 66; 349; s. c. 11 Cent. Rep. 90; 15 N. B. Sandifer v. Lynn, 52 Mo. App. 553; Rep. 415. Robinson v. Sampson, 8 Houst. 1154 THE LAW OF THE BOAD. [2(1 Ed. sons.^^^ A foot passenger, though he may be infirm from disease, has a right to walk in the carriage-way if he pleases, and is entitled to the exercise of reasonable care on the part of the drivers of vehicles.^ ^^ § 1301. Vehicles Eunning over Foot Passengers at Crossings. — Ordinary care is a relative expression, and exacts of a person a greater or less degree of attention, alertness, and skill according to the danger of the particular situation.^ ^* Applying this principle to the question under consideration, it is a just conclusion that the driver of a team, upon a city or village street, is bound to anticipate the presence of foot passengers at the crossings of other streets, and is bound to be more alert in looking out for them at such places, than elsewhere in the ordinary roadway. If he fails to look out for them, and thereby care- lessly drives upon them; or if, after discovering them, he does not exert reasonable care and skill to the end of avoiding them, — ^he is guilty of culpable negligence, and he or his master must answer for the damages. ^^^ It has been said that, when approaching a street crossing, he must ''drive slowly, cautiously and carefully." ^^'' But this will evidently depend upon the extent to which the crossing is used by pedestrians, and upon other circumstances peculiar to particu- lar cases. On the other hand, foot passengers, when approaching a street crossing, are bound to look out for approaching vehicles, and to use reasonable care to avoid a collision with them; but it has been justly observed that the same high degree of vigilance is not demanded of a footman, about to cross an ordinary public street, in order to avoid contact with a horseman, that is required of a traveller ap- proaching a railway crossing.^ ^^ Nevertheless, on a principle else- "« Beach v. Parmeter, 23 Pa. St. '=' Stringer v. Frost, 116 Ind. 477; 196. s. c. 19 N. E. Rep. 331; 2 L. R. A. '" Boss V. Litton, 5 Car. & P. 407. 614. See also Wendell v. New York "'Barker v. Savage, 45 N. Y. 194; &c. R. Co., 91 N. Y. 420; Barker v. ante, §§ 25, 26. Savage, 45 N. Y. 191; Williams v. ""Murphy v. Orr, 96 N. Y. 14. Grealy, 112 Mass. 79. It has been Substantially to the same effect are held error to charge a jury "that, Simons v. Gaynor, 89 Ind. 165; Elze ordinarily, the diligence required by v. Baumann, 49 N. Y. St. Rep. 629; the law, of the driver of a carriage, s. c. 21 N. Y. Supp. 782; 2 Misc. (N. in the public street or road, and a Y.) 72. Evidence which, though foot passengers in a public street or slight and unsatisfactory, was held road, was the same; and that the sufficient to warrant a jury in find- law required, under ordinary cir- ing that if the driver of a team had cumstances, no greater diligence of been sufficiently vigilant and care- the one than of the other:" Carter ful, he would have seen the child v. Chambers, 79 Ala. 223, 230. The on the street in front of him, in reason given for so holding was, time to have avoided injuring him: that there is no unvarying rule of Moskovitz V. Lighte, 68 Hun (N. Y.) diligence in suCh cases, but that the 102; s. c. 52 N. Y. St. Rep. 216; 22 degree of care required by either N. Y. Supp. 732. party must adapt itself to the cir- '=° Pollock, C. B., in Williams v. cumstances. Richard, 3 Car. & Kir. 81. 1155 1 Tliomp. Neg.] negligence in relation to the highway. where much considered, it must be kept in mind that the relative situ- ation of the horseman, or teamster, and the footman on approaching a crossing, is not the same. The footman can not hurt the horseman or the teamster by colliding with him : the latter is propelling the instru- ment of danger. He is the actor: the other is in a sense passive. And, while the other will not be entirely exonerated by the law from the consequences of a failure to take reasonable precautions for his own safety, — yet, on a principle elsewhere much considered,^ ^^ al- though he may negligently expose himself to being run over by the latter, yet this does not excuse the latter in running over him if he discovers his exposed position in time to avert the catastrophe, or if, by the exercise of that degree of care which the person so driving the instrument of danger, owes to others, he might have discovered it in time to have averted the catastrophe.^ ^^ Here, again the question whether the footman approaching the crossing on the one hand, and the horseman or teamster approaching it on the other, exercised the degree of care required by his situation, will be in most cases a question of fact for a jury.^^* For example, it will be for a jury to say whether, where the driver of a team, approaching a crossing, sees a pedestrian about to cross and checks his speed, he may resume his speed upon seeing that the pedestrian has checked his speed.'-^^ The conclusion has been extracted from the following cases that the question of negli- gence is the same whether a person crossing a street and injured by a vehicle was on the cross-walk or not;^^"* but, as a practical question, this can not be so, since the driver will not have the same reason to anticipate the presence of foot passengers on the roadway between street corners where there are no cross-walks, as where there are. § 1302. Injuries by Vehicles to Persons at Work on the Public Street. — Persons at work, repairing the public streets, excavating for sewers, and the like are lawfully there. The necessity of attending properly to their work absorbs so much of their attention, that they ought to be exonerated from the duty of keeping a lookout for ap- proaching vehicles, to a greater extent than footmen upon the streets. This conclusion must be clear, when it is considered that they can not look up and down the street for approaching vehicles, and look at their work at the same time. Subject to these considerations in its applica- tion, the general rule of law applies here, as in the case of other per- ^'^Ante, §§ 238, 239. '"» Crowley v. Strouse (Cal.), 33 ^^Gulick V. Clarke, 51 Mo. App. Pac. Rep. 456 (no ofe. rep.). 26. "° Moebus v. Herrmann, 108 N. Y. J^^Birkett v. Knickerbocker Ice 349; s. c. 11 Cent. Rep. 90; 15 N. Ei. Co., 110 N. Y. 504; s. c. 18 N. E. Rep. Rep. 415; Simons v. Gaynor, 89 Ind. 108; 13 Cent. Rep. 421; 18 N. Y. 165. St. Rep. 130. 1156 THE LAW OF THE ROAD. [2d Ed. sons lawfully using the highway, that if the street repairer is run over by a traveller, he may recover the damage thereby inflicted upon him, provided the traveller was negligent and he himself in the exercise of reasonable care, having reference to his situation.^^^ In such a case, it has been said : "Whether the plaintiff was bound to use the same degree of care, or more, or less, than a foot traveller in crossing the •street, or should have erected a barrier, were not questions of law, but of fact, to be determined by the referee."^^^ There is other judicial authority to the effect that, in such a case, although the street laborer is not protected by a barrier, and although no special notice is given of his presence, yet if he is thus run over, the case must not be with- drawn from the jury.^^^ § 1303. Injuries by Vehicles to Other Foot Passengers on the Pub- lic Street. — It is not unlawful for a foot passenger to cross the street at a place other than a crossing j'^^'' and if such a person is so crossing, and the driver of a team, failing to look ahead, negligently runs him down, he or his master must pay damages.^^^ ISTor will it be any de- fense that the driver's reins broke, for he or his master is bound to have proper tackle ;^^^ and if the injury happens through the want of any proper appliance, — as, a "skid" to arrest the motion of the wagon when going down hill, — ^this will be evidence of negligence.^' ^ Where one vehicle is closely following another in the street of a city, a foot passenger is not entitled to hazard the result of a nice calculation as to whether he can pass between; to do so is negligence, and if in the attempt he is injured, he can not recover.^^* It is competent, on the ^" Riley v. Farnum, 62 N. H. 42. was the signal man of a street rail- "' Riley v. Farnum, 62 N. H. 42. road company, at the crossing of Where a street paver, while at his two cable railroads, whose duty so work, suddenly turned his head absorbed his attention as to prevent without looking, and was struck by him from looking out for passing the hub of the defendant's wagon, vehicles. which was being driven at a fast ™ Cotterill v. Starkey, 8 Car. & trot along a street railway track, P. 691. and the street was wide enough be- "' Springett v. Ball, 4 Fost. & Fin. tween the curb and the railway 472. track to afford a passage for the "^Cotterill v. Starkey, 8 Car. & P. wagon, — it was held, proceeding on 691. It is assumed that this means these principles, that there was a no more than that he is bound to question of negligence for a jury, use due care that his tackle is safe, and that it was error to dismiss the not that he is bound to have proper complaint on the ground of contrib- tackle at his peril. utory negligence : Anselment v. Dan- "^ Springett v. Ball, 4 Fost. & Fin. iell, 4 Misc. (N. Y.) 144; 53 N. Y. 472. St. Rep. 133; s. c. 23 N. Y. Supp. "« Belton v. Baxter, 54 N. Y. 245 875. (N Y. Com. App.). This case came "=» Quirk V. Holt, S9 Mass. 164. afterwards before the Court of Ap- See also Gulick v. Clarke, 51 Mo. peals, where it was held, on substan- App. 26, where the person injured tially the same testimony, that 1157 1 Thomp. Neg.J negligence in helation to the highway. question of the negligence of the driver of the vehicle, to show that he was iiitoxicated.^^^ A laborer engaged on the street in clearing ice from a street-railway is lawfully there ; and although the street is not closed, or other notice given of his presence, the case must not be withdrawn from a jury.^^^ § 1304. Further of Injuries by Vehicles to Foot Passengers on the' Public Street. — The drivers of vehicles, horseback riders, or, in case the drivers were servants, their masters, — have been held prima facie guilty of negligence in the following cases: — Where a driver, ap- proaching from behind, ran upon a person walking in the street, the vision of the driver being unobstructed, his horse under perfect control, and he giving no warning of his approach ;^^'' where a horseman, rid- ing at a furious gait, ran down a pedestrian from behind in a public highway at a place where the sound of his approach was muffled by the condition of the road, he giving no explanation of his conduct ;^^* where the driver of a wagon urged his team at a rapid gait over a street crossing without checking his speed, and ran down a boy thirteen years whether the plaintiff was negligent was a question cf fact for the jury: Belton V. Baxter, bS N. Y. 411. i^Wynn v. AUard, 5 Watts & S. (Pa.) 524. '» Quirk V. Holt, 99 Mass. 164. In a case not reported in full, the plaintiff was crossing Ninth Avenue in the city of New York, at the Twenty-second Street crossing, from the west to the east side. When near the east side she was inter- cepted by a passing truck. She stopped on the cross-walk to let the truck pass, when a horse and wagon belonging to the defendants, in charge of a boy, who was driving fast, came diagonally across the ave- nue, struck her, and she was thrown down and injured. She heard the noise of the horse and wagon when within a few feet of her, raised her hands and called to the boy; but he neither saw nor heard her. It was held that the facts justified a find- ing of negligence on the part of the defendants, and of no contributory negligence on the part of the plaint- iff: Sheehan v. Edgar, 58 N. Y. 631. Liability of the owner of a team, injuring a boy on the side- walk, by suddenly backing thereon: Goff V. Akers, 1 Misc. (N. Y.) 468; s. c. 49 N. Y. St. Rep. 615; 21 N. Y. 1158 Supp. 454. Evidence sufficient to sustain a verdict for the plaintiff, where a boy, six years old, slipped and fell from the sidewalk into the gutter, and was run over by the de- fendant's wagon: Eckensberger v. Amend, 7 Misc. (N. Y.) 452; s. c. 57 N. Y. St. Rep. 569; 27 N. Y. Supp. 941. Evidence deemed too vague to show due care by the plaintiff, and negligence by the defendant, in the case of a boy, four years old, injured by being left unattended on the sidewalk, by his elder sister: Stock V. Wood, 136 Mass. 353. That the presence of a fog requires greater vigilance on the part of teamsters on the street: McManus V. Woolverton, 47 N. Y. St. Rep. 107; s. c. 19 N. Y. Supp. 545. Ver- dict of jury conclusive on the ques- tion whether or not the person in- jured, by being run upon by a horse, driven along a highway, himself caused the collision by backing or precipitating himself upon the de- fendant's vehicle: Gulick v. Clarke, 51 Mo. App. 26. "' Murphy v. Weidmann Cooper- age Co., 1 App. Div. (N. Y.) 283; s. c. 37 N. Y. Supp. 151; 72 N. Y. St. Rep. 486. ^'^ Stanfield v. Anderson (Ariz.), 43 Pac. Rep. 221 (no off. rep.). THE LAW OF THE EOAD. [2d E(l. old who was attempting to cross j^^" where a driver ran upon a pedes- trian in consequence of driving his team at a trot around a street cor- ner and over a cross-walk which was concealed from view until the turn was made;^*" where a driver, proceeding on the wrong side of the street, ran over a boy who was playing on that side.^*^ § 1305. Liability for Injuries Arising from the Breaking of Ve- hicles, Harness, etc. — One who sends his team upon the public high- way to be driven "is bound to have a good tackle, and is negligent if he does not;" and is hence liable to pay the damages sustained by the breaking of the tackle, particularly if his servant "is driving negli- gently as to the tackle." Such is the law as found in an English case, reported with such brevity as to be almost unintelligible.^*^ The obvious rule here is, that if damages are inflicted by reason of the breaking of the carriage or tackle of a traveller on the highway, the traveller or owner of the tackle or vehicle is liable only on the principle of want of ordinary care. It must be shown by the plaintiff that he knew, or might with reasonable diligence have known, of the defect, and was negligent in not repairing it.^*^ The mere fact that a wheel runs off, or that an axletree breaks, is not negligence per se.^** § 1306. Driving or Using Highway in Violation of Statute or Ordinance. — The general rule of law is, that statutes which are enacted to promote the safety of the public distributively, such as statutes pro- hibiting fast driving on the public streets, or requiring persons driving "° Streitfeld v. Shoemaker, 185 Pa. along by the side of the house with St. 265; s. c. 42 W. N. C. 62; 39 Atl. their hands upon it, and in failing Rep. 967. to warn them of the danger of fall- "" Cook v. Standard Oil Co., 9 App. ing under the hind wheel : Rice v. Div. (N. Y.) 105; s. c. 41 N. Y. BufCalo Steel-House Co., 17 App. Div. Supp. 152. (N. Y.) 462; s. c. 45 N. Y. Supp. "' Lowry v. Lynch, 57 111. App. 277. In the opinion of a court of 323. So, where one drove a heavy Common Pleas in Pennsylvania, it ice wagon rapidly around a corner, was not negligence to run down a striking a woman who was just female pedestrian in a narrow high- stepping from the curb, making no way on a dark night, while driving effort to stop after seeing her dan- a team at a "swinging trot," since ger: Kleinert v. Rees, 6 Pa. Super, she was walking in the beaten drive- Ct. 594. On the other hand, where way, and assumed the peril of doing a child was run over in the street so: Eby v. Shenk, 11 Lane. L. Rev. by a vehicle, there was no liability, 337. if the accident happened in conse- "^ Welsh v. Lawrence, 2 Chitty quence of the horse becoming un- 262, per Lord Bllenborough, C. J., manageable without the fault of the and Bailey, J. ; s. p. Cotterill v. Star- driver: Trow V. Thomas, 70 Vt. 580; key, 8 Car. & P. 691; Springett v. s. c. 41 Atl. Rep. 652. Nor was the Ball, 4 Fost. & Fin. 472. driver of a wagon on which was car- "' Doyle v. Wragg, 1 Fost. & Fin. ried a steel house used as an elec- 7. tion booth, guilty of negligence in '"Doyle v. Wragg, supra. failing to observe boys running 1159 1 Thomp. Neg.J negligence in relation to the highway. vehicles to pass to the right, or prohibiting them from leaving their horses or vehicles unhitched and unattended on the public street, — give a right of action to any one injured through their violation, provided the violation of the statute is a proximate cause of the injury, and not merely collateral to it. The violation of statutes enjoining care in any situation, is generally described in judicial opinions as negligence per se. The meaning is that the court can rightfully instruct the jury, that if they find that the act was done, which the statute pro- hibits, they must infer negligence. ^*° We have, however, seen a very incongruous line of decisions in one jurisdiction, to the effect that such statutes are merely admissible in evidence, as relevant evidence tending to show negligence, but that it is error for the court to instruct the jury that the violation is of itself negligence.^*® The general law is confidently stated to be otherwise. Where such a statute exists, any one who, without fault of his own, is injured by its violation, may maintain an action against the person violating the statute.^*' § 1307. Fast Driving and Racing in Violation of Municipal Ordi- nance. — But the existence of an ordinance, limiting the rate of speed for riding and driving upon a city street, is not at all necessary in order to give a right of action to one who is injured by the fact of persons racing thereon; and where a complaint proceeded upon this ground, the mere fact that it also set up an ordinance of the city limiting the rate of speed, did not make it an action to recover private damages for the violation of an ordinance, though the fact that the rate of speed at which the defendants were driving was prohibited by the ordinance, would, of itself be proof of negligence;^** or in New York, evidence tending to show negligence.^*' Such an ordinance is "' Ante, § 10, and other sections nance, states a cause of action : Hig- there referred to. gins v. Deeney, 78 Cal. 578; s. c. 21 '" Ante, § 11 ; Newman v. Ernst, Pac. Rep. 428. So, it has been 31 N. Y. St. Rep. 1; s. c. 10 N. Y. held that, to drive a team hitched to Supp. 310; aff'd 54 N. Y. 488; Schaf- a vehicle, "in a gallop," from the fer v. Baker Transfer Co., 29 App. rear of and past another vehicle in Div. (N. Y.) 459; s. c. 51 N. Y. Supp. which women and children are trav 1092, elling quietly along a public high- '"- Robinson v. Simpson, 8 Houst. way, is a "wrongful act," rendering (Del.) 398; s. c. 32 Atl. Rep. 287; the one doing so liable under Ky. Burgess V. Morris (Q. B.), 77 Law T. Const, § 241, for the death of one Rep. 97. Compare Mahogany v. of such children resulting there- Ward, 16 R. I. 479; s. c. 17 Atl. Rep. from: Thoman v. Royster, 98 Ky. 860. Therefore it has been well 206; s. c. 32 S. "W. Rep. 513; 17 Ky. held that a complaint alleging that L. Rep. 783. a child two years and five months "» Mittlestadt v. Morrison, 76 Wis. old was run over, knocked down, 265; s. c. 44 N. W. Rep. 1103; Rob- and injured by a team belonging to inson v. Simpson, 8 Houst. (Del.) defendant and driven by defendant's 398; 32 Atl. Rep. 287. servant at an unlawful rate of '■"Ante, § 11. It was so held speed, in violation of a city ordi- where one racing in a public street 1160 THE LAW OF THE ROAD. [2d Ecl. therefore, admissible in evidence, in an action for damages caused by fast driving, as speaking upon the question of negligence. ^^^ If two persons race with horses and carts, upon a public highway, and in so doing run over and kill a footman, both may be guilty of man- slaughter, — the principle being that when two persons incite each other to do an unlawful act, whereby one of them kills a man, both are guilty : the one who did the killing, as a principal in the first de- gree; the other, as a principal in the second degree.^^^ As elsewhere seen,^°^ it is a general principle that negligence is not imputable to a person for failing to anticipate that another person will be culpably negligent, unless he has special reason for so anticipating. Upon this principle, a person about to cross a street of a city in which there is an ordinance against fast driving, has a right to presume, in the ab- sence of knowledge to the contrary, that those driving along the street will conform to the ordinance ; and it is not culpable negligence, upon his part, in the absence of circumstances giving him a special warning, to act on the presumption that such persons will conform to the ordi- nance. But where he knows that others are driving along the street, at the place of crossing, at a forbidden rate of speed, and has a full opportunity of seeing the rate at which they are driving, the existence of the ordinance will not authorize him to act upon a presumption which is negatived by the evidence of his senses. Under such circum- stances, it has been held, — but the conclusion seems doubtful, — that the ordinance against fast driving, is improperly admitted in evi- dence.^ ^^ in violation of a city ordinance, ran horses in time to avoid a collision into the vehicle of the person who with a team ahead of him, the street was racing with him, and killed railway company must pay the dam- such person, where the former ages: Northridge v. Atlantic Av,e. urged his horse to greater exertion R. Go., 15 Misc. (N. Y.) 66; s. c. after observing that the deceased 36 N. Y. Supp. 263; 71 N. Y. St. was attempting to cross the street: Rep. 3. Hanrahan v. Cochran, 12 App. Div. "° Sandifer v. Lynn, 52 Mo. App. 91; s. c. 42 N. Y. Supp. 1031. The 553. See also Wright v. Maiden &c. fact that other persons have raced R. Co., 4 Allen (Mass.) 283; Hall v. horses on a given street in violation Ripley, 119 Mass. 135; Hanlon v. of a city ordinance is, of course, no South Boston R. Co., 129 Mass. 310. defense to an action for damages "'Regina v. Swindall, 2 Car. & caused by such racing: Hanrahan Kir. 230. If the driver of an omni- V. Cochran, 12 App. Div. 91; s. c. bus be racing with another omni- 42 N. Y. Supp. 1031. The driver of bus (running in opposition to each a street railway repair wagon has other), and from being unable no right of way on the public street promptly to rein up his horses, his other than that of any other ve- omnibus is upset and a passenger hide, and has no right to gallop killed, it is manslaughter: Rex v. through the streets clanging a bell Timmins, 7 Car. & P. 499. as a warning to vehicles and foot "' Ante, § 190 ; Jetter v. New York passengers to turn out; and if, in &c. R. Co., 2 Keyes (N. Y.) 154; driving at such a reckless rate of Stringer v. Frost, 116 Ind. 477. speed, he is unable to check his "^ Baker v. Pendergast, 32 Ohio 1161 1 Thomp. Neg.] negligence in relation to the highway. § 1308. Frightening the Horses of Other Travellers. — It is plain, on analogies elsewhere set out/'* that a person travelling on the high- way may conduct himself in such a manner as to make himself liable for an injury happening in consequence of his frightening the horse of another traveller; and that one person may bring upon the high- way objects having a tendency to frighten ordinarily gentle and road- wise horses, and thereby become liable to answer for any damages thus produced.^ '" Upon the question what noises are permissible in a St. AM. Compare Moulton v. -Aid- rich, 28 Kan. 300. That driving at a dangerous rate of speed creates no liability for running over a child, where the accident would have been the same had the rate of speed been lower: Dudley v. Westcott, 44 N. Y. St. Rep. 882; s. c. 18 N. Y. Supp. 130; reversing s. c. 40 N. Y. St. Rep. 506; s. c. 15 N. Y. Supp. 952. That a jury may find negligence from the act of a driver, in turning a street corner at a rate so rapid that he is unable to avoid injury to a person coming up the street, into which he turns: Mooney v. Trow Directory Co., 2 Misc. 238; s. c. 51 N. Y. St. Rep. 418; 21 N. Y. Supp. 957. Also from the act of a driver in driving at an extraordinary rate of speed, alongside a street car, with no at- tempt to check his speed, when the car is stopped to let off a passenger, so that the team runs over a pas- senger just as he steps from the car: Sandifer v. Lynn, 52 Mo. App. 553. On the principle that, where two concurring causes produce an injury, and one of them proceeds from the negligence of the defend- ant, the defendant is liable for the damages (ante, § 75) it has been seemingly well held, in a learned opinion by Bischoff, J., that a jury are warranted in giving a verdict for damages against a defendant, by whose team the plaintiff has been injured, on a public street, while being driven at a reckless rate of speed, where the fact of the horse taking fright at the engine of an elevated railroad was one of the concurring causes which produced the catastrophe; Van Houten v. Fleischmann, 1 Misc. (N. Y.) 130; s. c. 48 N. Y. St. Rep. 763; 20 N. Y. Supp. 643. »" Ante, § 1257, et seq._ ^'' See, for instance. Turner v. Bu- chanan, - 82 Ind. 147, where on the 1162 special finding of a jury, a judgment was ordered for the plaintiff for frightening his team by a steam- engine, brought upon the street. Compare Smith v. Kurrus, 31 111. App. 276, where the defendant's horse taking fright at a band of music, near which the defendant drove, injured the plaintiff's buggy. There is, however, an untenable holding in one jurisdiction, to the effect that a declaration which charges in substance, that while the plaintiff with his horse and vehicle was lawfully on the highway, the defendant and others who were coasting on the highway, contrary to law or contrary to city ordi- nances, by loud, boisterous outcries, hallooing, etc., frightened the horses of the plaintiff causing them to run away, doing damage, etc., states no cause of action: Jackson v. Castle, 80 Me. 119; Jackson v. Castle, 82 Me. 579; s. c. 20 Atl. Rep. 237. The reasoning is, "that sliding in a street, accompanied with boisterous conduct, is not necessarily unlawful, nor is it necessarily a public nui- sance:" Jackson v. Castle, 80 Me. 119, 122. And, further, the aver- ment that it was done contrary to a city ordinance, to the common nui- sance of citizens, does not cure the defect: Jackson v. Castle, 82 Me. 579. It should be observed that one of the supports of this untenable conclu- sion is found in the doctrine which prevails in that jurisdiction, that the doing of an act proMbited by a statute, intended to conserve the safety of members of the public, is not negligence per se, — the doctrine of that jurisdiction being that "one doing a lawful act in a manner for- bidden by law, is not absolutely lia- ble for an injury caused to a third party by the act; nor is the viola- tion of law in doing it conclusive evidence of negligence:" Jackson v. THE LAW OF THE EOAD. [2d Ed, public street, it has been held that hallooing in such a place, to the driver of a team, for the purpose of warning him that another driver wishes to pass him, can not be treated as an act of negligence, such as will make the person so calling out jointly liable with the driver, if the team of the driver to whom he calls takes fright, and does the passing team an injury, especially if the calling out was meant to prevent a collision.^ °* But, where the defendant, who was watering a street with a hose, willfully turned a stream of water upon a span of horses, attached to a wagon, which was hitched in front of his premises, and they became frightened thereby and ran away, and collided with the plaintiff's wagon, — it was held that the defendant was liable for the injury, the damage being proximate and not remote.^" § 1309. Driving Vicious or Unbroken Horses. — Actionable negli- gence may consist in the fact of driving a vicious, unbroken, or un- manageable horse upon a frequented street, or highway, or among a crowd of vehicles standing in a place set apart for them, and away from the public road, at a public gathering, and there striking him with a whip, so that by his plunging and rearing, injury to others results.^ ^^ But every horse, in order to become roadwise, must be driven upon the road for the first time; and, therefore, it can not be said, as matter of law, that the use of a young and inexperienced horse, upon a thoroughfare in a town of considerable population, is negligence. ^^^ § 1310. Injuries by Fire Insurance Patrols, Street Railway Repair Wagons, etc. — A statute which gives an association of underwriters the right of way in gbing to a fire with their patrols, to save goods, etc., has been held not to relieve them from liability for negligence in in- juring one upon the street without fault. ^^^ Castle, 82 Me. 579, 581; Burbank v. ""' Danville v. Makenson, 32 111. Bethel Steam Mill Co., 75 Me. 373, App. 112. Where a boy five years 382; Gilmore v. Ross, 72 Me. 194. of age approached a vicious horse The defect in such a petition was In the street for the purpose of said not to be that the plaintiff's touching it, and was kicked by it, horses were frightened by the negli- it was immaterial whether the in- gence of the defendant; nor that the jured boy was at the time on the plaintiff was not himself in the ex- sidewalk or not; since he was not ercise of proper care; nor that the injured as a traveller on the high- ordinance prohibited sliding alto- way, and in disregard of his rights gether in the street, but only in the as such: Bowler v. O'Connell, 172 particular manner: Jackson v. Cas- Mass. 189; s. c. 51 N. E. Rep. 973. tie, 82 Me. 579, 581. ""Newcomb v. Boston Protective ""Pigott V. Lilly, 55 Mich. 150. Dept. 146 Mass. 596; s. c. 6 N. Eng. "'Forney v. Geldmacher, 75 Mo. Rep. 282; 16 N. E. Rep. 555. Com- 113; s. c. 42 Am. Rep. 388. pare Boyd v. Philadelphia Insur- i^^Clore V. Mclntire, 120 Ind. 262; ance Patrol, 113 Pa. St. 269, where s. c. 22 N. E. Rep. 128. the propriety of a nonsuit turned 1163 1 Thomp. Neg.J negligence in relation to the highway, § 1311. Injuries ty the "lee-Man." — A presumption of negligence arises from the falling of a cake of ice from the rear end of a wagon, injuring a child who had run to the rear of the wagon, though it was not at the usual street crossing, if the occurrence was not a usual or ordinary one.^°^ The driver of an ice wagon, backing against the curb for the purpose of unloading ice, is under the duty of seeing that the way is clear to enable him to do so without injury to persons enter- ing or leaving the open space between the sidewalk and the curb ; and if injury happens from his failure to exercise this precaution, his em- ployer will be liable.^ °^ § 1312. Injuries from the ITse of Steam Traction Engines on the Highway. — This form of locomotion has been the cause of frequent accidents on the highway, which generally take the form of the fright- ening of travellers' horses or the breaking down of bridges. Statutes have been enacted regulating the movements of such engines on the highway with the view of promoting the public safety. One such statute^^^ provides that one in charge of a steam engine on the high- way must stop the engine whenever it comes within one hundred yards of a person going on the highway with horses, unless the latter has passed him. A want of compliance with the statute was not excused by the fact that the driver of such an engine did not stop it within less than one hundred yards of persons approaching with horses, be- cause the engine was sinking into a wet place at a culvert where he was endeavoring to pass the culvert in a way forbidden by the law.^"* on the question, whether the fire '"Cook v. Piper, 79 111. App. 291; Insurance patrol was a private cor- s. c. 4 Chic. L. J. Wkly. 8. poration, or an auxiliary of the city "^ McCloskey v. Chautauqua Lake of Philadelphia, which question, the Ice Co., 174 Pa. St. 34; s. c. 38 W. court held, could not be determined N. C. 30; 26 Pitts. L. J. (N. S.) 347; by the charter of the insurance pa- 34 Atl. Rep. 287. One court has trol alone. A nisi priiis court in condoned the driving over a child New York has held that a repair by an ice-man on the street, on the wagon of a street railway company ground that if the driver had been has no better right to the use of on the seat of the wagon, he would a highway than ordinary vehicles; not have seen the child anyway, — that its driver has no right to go no : McNamara v. Beck, 21 Ind. App. along a travelled street at a gallop, 483; s. c. 1 Repr. 580; 52 N. B. Rep. sounding a gong for other travellers 707. Another court has allowed an to get out of the way; and that if. ice-wagon to run over a child five coming at such a rate of speed be- years old at half-past eight in the hind a person driving a vehicle who evening, without paying damages, turns slightly to go down a side because it was not clear whose fault street, — it runs him down, contrib- occasioned the injury: Lowery v. utory negligence will not be as- New York Ice Co., 26 Misc. (N. Y.) cribed to him, so as to prevent him 163; s. c. 55 N. Y. Supp. 707. from recovering damages from the "^ Iowa Acts 24th Gen. Assem. ch. railway company: Northridge v. At- 68. lantic Ave. R. Co., 15 Misc. (N. Y.) "* State v. Kowolski, 96 Iowa 346; 66; s. c. 36 N. Y. Supp. 263; 71 N. s. c. 65 N. W. Rep. 306; 1 Fed. & St. Y. St. Rep. 3. Grim. Rep. 396. 1164 THE LAW OP THE EOAD. [2d Ed. The sound view would seem to be that such an engine, as a means of locomotion in the highway, is not necessarily a nuisance, and the ques- tion whether its use as such has in a particular instance been so negligently managed, to the injury of others, as to give rise to a right of action, is one of fact for the jury, as a question of reasonable con- duct and management.^"^ Under the law of Pennsylvania, it has been held that, while the running of a traction engine over a high- way on a single occasion, for the purpose of transporting it from one place to another, may not constitute a nuisance, — ^yet the continual use of such an engine for transporting heavy materials upon the public highway, where its appearance and the noise it makes interferes with travel by frightening horses, becomes a nuisance and hence indict- able.i«8 § 1313. Negligence in Ilnloading over a Sidewalk. — One engaged in unloading heavy barrels from a wagon, over a sidewalk, by means of a skid, was held liable for an injury to a pedestrian caused by roll- ing down a barrel without warning just as he was passing at the lower end of the skid, even though he may have seen the skid and noticed that the barrels were being unloaded.^*^ § 1314. Negligence in leading Horses in the Street.^ — It is the duty of one leading a horse along a village or city street to exercise ordinary and reasonable care to avoid colliding with travellers by the swerving of the horse.^^* § 1315. Evidence of Negligence in these Cases. — Evidence of neg- ligence, sufficient to take the question to the jury, has been found in testimony tending to prove that the plaintiff was injured by the fact of a heer-barrel falling from the wagon of the defendant, the wagon being overloaded, and the driver turning smartly from the track on which he "' Macomber v. Nichols, 34 Micli. public." Watkins v. Reddin, 2 Fost. 212. & F. 629. In England, the owner of ^"' Commonwealth v. Allen, 148 a traction engine, who has put his Pa. St. 358; s. c. 16 L. R. A. 148. name upon it as required by statute. In an action for damages caused by is not liable for injury resulting plaintiff's horse taking fright at a from the negligent use of it by one traction engine, the court gave the to whom he has leased it: Smith v. following instruction: "The plaint- Bailey (1891), 2 Q. B. 403. iff is entitled to your verdict, if the "" Mahan v. Everett, 50 La. An. engine was calculated by its noise 1162; s. c. 23 So. Rep. 883. and appearance to frighten horses, a This section is cited in § 851. so as to make the use of the high- "=»Crozier v. Read, 78 Hun (N. Y.) way dangerous to persons riding or 181: s. c. 60 N. Y. St. Rep. 215; 28 driving horses. For the defendant N. Y. Supp. 914; s. c. aff'd 10 App. has clearly no right to make a profit Div. (N. Y.) 626; s. c. 41 N. Y. at the expense of the security of the Supp. 1110. Compare ante, § 851. 1165 1 Tiiomp. Neg.] negligen'ce in relation to the highway. was driving, with a crack of the whip;^°® that the defendant's horsea were in charge of a boy, who was riding one and leading the other, and that by jerking the halter of the led horse, the boy caused it to swerve against the plaintiff's wagon j^'" that the defendant's team, going at a high rate of speed, ran over a 'boy four years old, who sud- denly, from a position of safety, ran in front of the team, the children having been in plain view of the driver for some distance ;^''^ that the driver of the defendant, driving a heavy truck, having turned out of the street railway track to allow a car to pass, immediately attempted to crowd back, and in so doing brought his truck into collision with the plaintiff's horse and wagon, which had occupied the track behind the car.^'^ § 1316, Evidence which did Not Disclose Negligence. — On the other hand, no evidence of negligence has been discovered in the fact that a person driving along a street, looking at some houses, for the roofing of which he had contracted, ran into a surveyor's transit, left unguarded in the street, it not being seen by him.^'^ It was not deemed negligence for a driver of a horse and buggy to attempt to pass four saddle horses with their riders on a park roadway thirty- ™ Ledig V. Germania Brew. Co., 153 Pa. St. 298; s. c. 25 Atl. Rep. 870. "" Crozier v. Read, 78 Hun (N. Y.) 181; s. c. 60 N. Y. St. Rep. 215; 28 N. Y. Supp. 914. '"Barrett v. Smith, 128 N. Y. 607; s. c. 28 N. E. Rep. 23; reversing s. c. 14 N. Y. Supp. 307; 38 N. Y. St. Rep. 526. "^Baumann v. Gilmour, 31 N. Y. St. Rep. 283; s. c. 10 N. Y. Supp. 534. That the driver of the defend- ant, turned his wagon and team in a different direction from that em- ployed by other drivers, without warning to the plaintiff: Sullivan v. Brooks, 8 Misc. (N. Y.) 532; s. c. 59 N. Y. St. Rep. 273; 28 N. Y. Supp. 1150. That, after the plaintiff was, in fact, Icnocked down and injured by the defendant's horse and wagon, a police officer ran after the defend- ant's driver and was unable to stop him until he had gone a hundred and twenty-five feet: Atkinson v. Oelsner, 32 N. Y. St. Rep. 1088; 10 N. Y. Supp. 822. That the defend- ant's driver, for some unaccount- able reason, ran his team and truck against the plaintiff's horse and wagon, which were standing on the side of the street close to the curb, 11G6 for the purpose of delivering articles at a house, there being plenty of room in the highway to pass in safe- ty: Axlebrood v. Rosen, 21 Misc. (N. Y.) 352; s. c. 47 N. Y. Supp. 164. "» State V. Laur, 55 N. J. L. 205; s. c. 26 Atl. Rep. 180; 20 L. R. A. 61; 47 Alb. L. J. 394. Nor, in evi- dence to the effect that a boy nine years old was run over by the de- fendant's driver, while driving slowly in the dusk of the evening, the boy sitting on a curb stone, with his legs in the street: Keubler v. New York, 39 N. Y. St. Rep. 520; s. c. 15 N. Y. Supp. 187. Where two vehicles are approaching each other on streets which meet at a right angle neither has the right of way; but where one driver signals to the other that he will continue his pres- ent course, he has a right, In the absence of any indications to the contrary, to expect that his signal will be obeyed, and where a failure to obey results from the presence of a concealed load which prevents the driver signaled from properly con- trolling his team, a verdict against his employer will be sustained: Koester v. Decker, 22 Misc. (N. Y.) 353; s. c. 49 N. Y. Supp. 276. THE LAW OF THE ROAD. [2d Ed. eight feet wide, at a greater speed than a walk.^'* The rider of a horse in company with three others was not guilty of negligence in endeavoring to fall back to make room for a buggy which they met upon a park roadway, because in checking his horse the animal backed partly across the road and in front of the buggy. "° § 1317. Cluestions of the Admissibility of Evidence. — ^Where the question at issue is, whether the defendant was driving at an improper rate of speed, it is plain that a city ordinance, or statute, regulating the rate of speed, will be relevant evidence; since in most jurisdic- tions, the violation of such an ordinance, or statute, is deemed negli- gence perse.'^''' But, even where, as in New York, it is not negligence per se,^'''' it is, nevertheless, deemed a relevant fact to be submitted to the jury, as evidence tending to show negligence.^ '^ Where the negli- gence of the defendant is admitted, and the issue relates to the con- tributory negligence of the plaintiff, and the evidence shows that the plaintifE walked into the danger in full view of what was before him, — then, it has been held that such an ordinance is inadmissible, since the plaintiff has no right to act upon the presumption that it will be obeyed, when he sees the contrary.^'''' In an action by a foot passen- ger, to recover damages for injuries sustained in being run down, in a public street, evidence of the large amount of travel upon the street, is clearly admissible, as tending to show the impropriety of the conduct of the defendant, in riding at an immoderate rate of speed.^^" In questions of this kind, the inquiry is, whether the defendant, or his servants, was guilty of negligence in the particular instance, — not whether he was generally negligent or diligent. Therefore, the repu- tation of the driver of the defendant, by whose team the injury was caused, as a good and careful driver is immaterial and can not be put '"Miller v. Cohen, 173 Pa. St. 488; question of fact for a jury, whether s. c. 38 W. N. C. (Pa.) 78; 34 Atl. a man is a wrong-doer in violating Eep. 219. the law! In Knupfle v. Knicker- "= Miller v. Cohen, 173 Pa. St. 488; bocker Ice Co., 84 N. Y. 488, it was s. c. 38 W. N. C. (Pa.) 78; 34 Atl. held that evidence of a city ordi- Rep. 219. nancfe, prohibiting leaving of horses "" Ante, § 10. untied or unattended, upon the '" Ante, § 11. streets, was properly admitted "'Knupfle V. Knickerbocker Ice upon the question of negligence; Co., 84 N. Y. 488; afllrming, on this but, it was error for the judge to point, s. c. 23 Hun (N. Y.) 159; charge the jury that a violation of Brown v. Buffalo &c. R. Co., 22 N. the order was of itself negligence. Y. 191; Beisegel v. New York &c. In other words, it was for the jury R. Co.,' 14 Abb. Pr. (M. S.) 29; Mc- to say whether a man who violated Grath'v. New York &c. R. Co., 63 the law was therein guilty of N. Y. 522; Massoth v. Delaware &c. wrong! Canal Co., 64 N. Y. 524. Here the ""Baker v. Pendergast, 32 Ohio New York cases land the law in St. 494. the absurd proposition, that it is a '=° Stringer v. Frost, 116 Ind. 477. 1167 1 Tliomp. Neg.] negligence in relation to the highway. in evidence ;'^^ nor is it competent to prove the good character of the defendant's driver, and his former skill and care in that capacity.^^- In an action for injuries alleged to have been caused by negligent or reckless driving, the plaintiff may show the disposition of the defend- ant's team as to racing, that it had been trained to pass other teams with great speed, and that it acted in that way, both before and shortly after the accident.^*^ Upon the question of negligence in the defendant's driver, it has been held competent to show that the latter drove upon the plaintiii while the plaintiff was -loading his wagon in the customary way, in the drive-way, and that the defendant's driver knew what the customary way of loading was, at that place. ^** § 1318. ftuestions for the Jury. — As elsewhere stated,^'" the ques- tion of negligence in driving a wagon so as to bring it into collision with another wagon, almost always presents a question which can not be solved by any rule of law, and which is, therefore, a question for a jury.^^^ It has been held a question for a jury, whether it was a rea- sonable act for the driver of a heavy truck to continue driving rapidly along a narrow street, within three feet of a wall, on the side of the street, in plain view of children playing near the wall, the evidence tending to show that the speed was in excess of that permitted by ordi- nance, and that the child which was injured did not see the team com- ing until it was close upon her, when, losing her presence of mind "'Williams v. Edmunds, 75 Mich, of a stage-coach (Boyce v. California 92; Boick v. Bissell, 80 Mich. 260. Stage Co., 25 Cal. 468); and In an- iszjpor example, it is not compe- other, where it was caused by the tent to prove that the defendant's negligent driving of cattle, through driver was a good, first-class driver, the streets of a populous city (Fick- careful in handling horses, and that, en v. Jones, 28 Cal. 618). In Towle during the four years he had been in v. Pacific Imp. Co., supra, an at- the defendant's employ, he had tempt is made to distinguish these never been guilty of any mismanage- cases, on the ground that they cor- ment or carelessness in the conduct rectly state the law applicable to and care of his team: Towle v. Pa- cases where the utmost care is re- cific Imp. Co., 98 Cal. 342; s. c. 33 quired, and where the defendant is Pac. Rep. 207. See also Tenney v. held liable for injuries resulting Tuttle, 1 Allen (Mass.) 185; Mc- from the slightest negligence. But Donald v. Savoy, 110 Mass. 49; Mc^ it is submitted that there is no ten- Carty v. Leary, 118 Mass. 509 ; Ja- able ground which will support such cobs V. Duke, 1 E. D. Smith (N. Y.) a distinction. 271; Hays v. Miller, 77 Pa. St. 238; >«^ Schaefer v. Osterbrink, 67 Wis. Dunham v. Rackliff, 71 Me. 345; 495; distinguishing Brennan v. Chase v. Maine &c. R. Co., 77 Me. Friendship, 67 Wis. 223. 62; s. c. 52 Am. Rep. 744; Morris '=" Boick v. Bissell, 80 Mich. 260; V. East Haven, 41 Conn. 252; Prop- s. c. 45 N. W. Rep. 55. som V. Latham, 80 Wis. 608; Central ^'^ Post, § 1322. R. Co. V. Roche, 64 Ga. 635; Atlantic ''° Hudson v. Houser, 123 Ind. 309; &c. R. Co. V. Newton, 85 Ga. 517. s. c. 24 N. E. Rep. 243. See Mars- The rule has been held otherwise in land v. Murray, 148 Mass. 91, for a one case, where the injury resulted peculiarly apt illustration of this to a passenger from the overturning rule of procedure. 1168 THE LAW OF THE ROAD. [2d Ed. through fright, she ran toward the horses, instead of running away from them.^*' It is scarcely necessary to add that where the evidence is attended with conflict or with discrepancies, these are to be solved by the jury.^** Article III. Contributort Negligence oe the Peeson Injured. Section 1322. Contributory negligence of tlie person injured generally a question for Jury. 1323. Facts to which contributory negligence not ascribed as matter of law. 1324. Jury how instructed as to contributory negligence. 1325. Recovery not barred because the person injured negligent- ly exposed himself. 1326. How far a defense that plaint- iff was himself violating the law of the road. 1327. Not contributory negligence to fail to anticipate the neg- ligence of a person driving in the road. Section 1328. Contributory negligence of foot passengers run over by horses and vehicles. 1329. Whether contributory negli- gence for footman to fail to look for approaching teams. 1330. Doctrine of Imputed negli- gence in cases of collisions on the highway. 1331. Case withdrawn from jury where evidence equally con- sistent with conclusion of care or negligence. 1332. Right of recovery where the concurring act of third per- sons assists in producing the catastrophe. § 1322. Contributory Negligence of the Person Injured Generally a Question for Jury.^ — Cases of collision on highways almost invari- ably involve questions of concurrent negligence on the part of both of the actors. As the circumstances attending such injuries are within the range of everyday observation and experience, the question of con- tributory negligence in these cases is in a peculiar sense a question for a jury, though, of course, within the limits of the principle that there must be evidence reasonably tending to that conclusion, and subject also to the rule that, in cases where the evidence tends only to that conclusion, the judge can decide it as matter of law.^^® Thus, it has '"Barrett v. Smith, 128 N. Y. 607; s. c. 28 N. B. Rep. 23; 38 N. Y. St. Rep. 922; reversing s. c. 38 N. Y. St. Rep. 526; 14 N. Y. Supp. 307. '»*Silsby V. Michigan Car Co., 95 Mich. 204; s. c. 54 N. W. Rep. 716; Bierbach v. Goodyear Rubber Co., 14 Fed. Rep. 826; s. c. 15 Fed. Rep. 490. a This section is cited in p 1318. '^^ Schienfeldt v. Norris, 115 Mass. VOL. 1 THOMP. NEG.— 74 17; Templeman v. Haydon, 12 C. B. 507; Sheehan v. Edgar, 58 N. Y. 631; Vincent v. Stinehour, 7 Vt. 62; Wakeman v. Robinson, 1 Bing. 213; s. c. 8 J. B. Moo. 63; Brooks v. Schwerin, 54 N. Y. 343; Monroe v. Leach, 7 Mete. (Mass.) 274; Boick V. Bissell, 80 Mich. 260; s. c. 45 N. W. Rep. 55; Orr v. Garibold, 85 Ga. 373; s. c. 11 S. E. Rep. 778; Sleeper V. Worcester &c. R. Co. 58 N. H. 520; 1169 1 Thomp. Neg.] negligence in relation to the highway. been held a question for the jury whether the driver of a wagon waa negligent in driving it within from six to twelve inches of another wagon, beside which its driver was standing, working at his load, and whether the latter was negligent in thus standing with his back to the roadside ;^°° whether the plaintiff, a foot passenger, was guilty of contributory negligence in not looking and listening before he at- tempted to cross a public street ;^°^ whether the horse of the plaintiff, which broke loose from where the plaintiff hitched it, and got upon a railway track and was killed, was rightfully in the highway, and whether the plaintiff was in the exercise of due care;^'^ and whether the plaintiff exercised due care in the selection and management of his team.^'* § 1323. Facts to which Contributory Negligence Not Ascribed as Matter of Law. — The courts have refused to ascribe contributory neg- ligence, as matter of law, to the act of a man in driving along the road on a wagon with an umbrella over his head, who was hurt in conse- quence of driving upon a telephone wire, instead of taking a dirt road nearby;^"* to the failure of a person, lawfully travelling the street, to look behind him to see whether vehicles are coming upon him;^'^ to the act of a person driving a team along a street where there was a ridge of snow and a narrow drive-way, in turning out to allow a team to pass him coming in the opposite direction;^"" to the error of a driver, whose horses became frightened and unmanageable at the sight of a rope dragging from the end of a wagon passing hird;^^'' to the act of a driver of a team, in rising to his feet in the wagon, upon his horse taking fright in consequence of being attacked by the de- fendant's dog;^°* to the failure of one lawfully on the street, to look Griffin v. Auburn, 58 N. H. 121; Tut- 968. What evidence of care on the tie V. Farmington, 58 N. H. 13; Lon- part of parents, in their situation, ergan v. Martin, 53 N. Y. St. Rep. will take the question of contribu- 320; s. c. 23 N. Y. Supp. 968; Wiel v. tory negligence to the jury, where a Wright, 29 N. Y. St. Rep. 763; s. c. boy, five years old, was run over and 8 N. Y. Supp. 776. killed on the street: Slattery v. I'OBoick v. Bissell, 80 Mich. 260; O'Connell, 153 Mass. 94; s. c. 26 N. s. c. 45 N. W. Rep. 55. E. Rep. 430. m orr v. Garibold, 85 Ga. 373; s. c. ™ Pennsylvania Teleph. Co. v. Var- 11 S. B. Rep. 778. nau (Pa.), 15 Atl. Rep. 624 (not off. ^^ Sleeper v. Worcester &c. R. Co., rep. ) . 58 TSr. H. 520. "' Undhejem v. Hastings, 38 Minn. "'Tuttle v. Farmington, 58 N. H. 485; s. c. 38 N. W. Rep. 488. 13. Other cases where the question "" Somerville v. Poughkeepsie of negligence and that of contribu- City R. Co., 43 N. Y. St. Rep. 425; s. tory negligence were for the jury: c. 17 N. Y. Supp. 719. Wiel V. Wright, 55 Hun (N. Y.) 611; ""Barnes v. Brown, 95 Mich. 576; s. c. 29 N. Y. St. Rep. 763; 8 N. Y. s. c. 55 N. W. Rep. 439. Supp. 776; Lonergan v. Martin, 53 ""Meracle v. Down, 64 Wis. 323. N. Y. St. Rep. 320; 23 N. Y. Supp. In the case of the accident just de- 1170 THE LAW OF THE EOAD. [2d Ed. behind him in order to discover, as he might have done, a runaway team in time to avoid it;^^^ to the failure of a driver of a carriage to control his horses after a collision produced by the negligence of the defendant, unless the former did some act contributing to the coL lision.^"" § 1324. Jury how Instructed as to Contributory Negligence. — In the days when the doctrine of comparative negligence obtained in Illi- nois, it was proper to tell the jury that if they believed 'from the evi- dence that the injury was caused by the negligence or fault -of the defendant's driver, without any greater want of care or skill on the part of the plaintiff's driver than could reasonably be expected of a person of ordinary prudence and skill in such a situation, the plaintiff is entitled to recover.^"^ It is not error to refuse to tell the jury that if plaintiff's driver saw the defendant's team while at a considerable distance, and from that time until they met, and there was ample and unobstructed space in the street on plaintiff's right to enable his team to pass safely, then the negligent or unskillful management of the plaintiff's team must have contributed to the injury, and she can not recover. The facts recited are not conclusive proof of negligence, especially since the plaintiff had a right to presume that the defendant would comply with the statute. ^°^ § 1325. Recovery Not Barred Because the Person Injured Negli- gently Exposed Himself.^ — Upon a principle elsewhere much consid- ered,^"' the plaintiff, or personal representative of the deceased, will not be precluded from recovering damages owing to the fact that the plaintiff or the deceased was guilty of some negligence in exposing himself in the public street to the injury which the defendant visited upon him, if, after seeing his exposed position, or if by the exercise of reasonable care the defendant might have seen it so as to avoid the injury by the subsequent exercise of reasonable care. Thus, where a driver was clearly negligent in not having a "skid" or brake to check his wagon when going down hill, and in looking at his horses so that scribed, to the fact that the seat of 174; Williams v. Holland, 6 Car. & the plaintiff's wagon was not fast- P. 23; s. c. 10 Bing. 112; Hawkins ened to the wagon-box: Meracle v. v. Cooper, 8 Car. & P. 473; Moody v. Down, supra. Osgood, 54 N. Y. 488; Wynn v. Al- ""Moulton v. Aldrich, 28 Kan. 300. lard, 5 Watts & S. (Pa.) 524; Ken- ■""Belk v. People, 123 111. 584; s. c. nard v. Burton, 25 Me. 39; Drake v. 15 West. Rep. 59; 17 N. E. Rep. 744. Mount, 33 N. J. L. 441; Lane v. Bry- *• Coursen v. Ely, 37 111. 338. See, ant, 9 Gray (Mass.) 245. as to the manner of instructing with ="' Wood v. Luscombe, 23 Wis. 287. reference to contributory negligence a This section is cited in §§ 1284, 'n such cases, Mabley v. Kittleber- 1292. ger, 37 Mich. 360; s. c. 6 Reporter ""Ante, § 230, et seq. nil 1 Thomp. Xeg.] ni:gligence in relation to the highway. he did not see the deceased until he was within three yards of him, and the deceased was guilty of some negligence in attempting to cross the road where there was no regular crossing, yet his representative was entitled to recover if the defendant could nevertheless have avoided the accident by the exercise of reasonable care.^"* Nor will the ordi- nary negligence of one driver, while attempting to pass another com- ing from the opposite direction, prevent a recovery by him for dam- ages resulting from a collision, if the other driver was grossly negli- gent,, or acted willfully or wantonly f°^ the reason being that, in such cases, contributory negligence is no defense.^"® § 1326. How Far a Defense that Plaintiff was Himself Violating the Law of the Road.^ — Under the operation of this principle, the fact that the plaintiff was himself, at the time of the collision, violat- ing the laWj""'' — as by driving on the wrong side of the roadf^ or =™* Springett v. Ball, 4 Fost. & Fin. 472. See also Evans v. Adams Ex- press Co., 122 Ind. 362; s. c. 23 N. B. Rep. 1039; 7 L. R. A. 678. In dealing with such a question, the St. Louis Court of Appeals said: "The rule of law Y.'h'")! protected the ass of Davies (Davies v. Mann., 10 Mees. & W. 545), the oysters of Broolie (Mayor v. Brooke, 7 Ad. & Ell. (N. S.) 339), the hogs of Kerwhacker (Kerwhacker v. Cleveland &c. R. Co., 3 Ohio St. 172; s. c. 1 Thomp. Neg., 1st ed., p. 472), and the wood- toat of Ad,ams (Adams v. Wiggins Ferry Co., 27 Mo. 95), was adequate to protect the plaintiff, although he may have been negligent in expos- ing himself to danger: Kelly v. Union R. &c. Co., 95 Mo. 279, 284. On the other hand, if, according to the defendant's testimony, the plaintiff recklessly backed or threw himself against the defendant's ve- hicle, then his own negligence may have been the proximate cause of the injury, under the rule of the leading case of Butterfield v. For- rester, 11 Bast 60; s. c. 2 Thomp. Neg., 1st ed., p. 1104. The principle of that case is that, although B. has negligently placed an obstruction in the highway, yet if A., by negligent driving, precipitates himself against it and gets hurt, he can not recover damages of B. So here, although the defendant may have been driv- ing negligently and without taking due care for the safety of the plaint- iff, yet if the plaintiff negligently 1172 backed or precipitated himself on the defendant's vehicle, his, and not the defendant's negligence, was the proximate cause of the injuries. But this excuse, offered by the defend- ant, necessarily presented a ques- tion for the jury:" Gulick v. Clarke, 51 Mo. App. 26, 34. Much to the same effect, see Curtin v. Metropoli- tan Street R. Co., 48 N. Y. Supp. 581; s. c. 22 Misc. (N. Y.) 83; aff'g 47 N. Y. Supp. 1134; s. c. 21 Misc. (N. Y.) 788. Circumstances where, in a jurisdiction where the plaintiff is required to prove himself free from contributory negligence, it was held not necessary to introduce af- firmative testimony as to what the injured boy was doing at the mo- ment of receiving the injury: Mars- land V. Murray, 148 Mass. 91; s. c. 18 N. E. Rep. 680. ™= Tyler v. Nelson, 109 Mich. 37; s. c. 2 Det. L. N. 1008; 66 N. W. Rep. 671. ™An